Full Opinion (html_with_citations)

                                      246

             Submitted July 27, 2021, reversed December 14, 2022


                    In the Matter of A. B. K.,
             a Person Alleged to have Mental Illness.
                      STATE OF OREGON,
                           Respondent,
                                v.
                             A. B. K.,
                            Appellant.
                  Lincoln County Circuit Court
                      20CC04633; A174567
522 P3d 894

    Appellant appeals from a judgment committing him to the custody of the
Mental Health Division for a period not to exceed 180 days and an order prohib-
iting the purchase and possession of firearms, based on a finding that appellant
is a person with mental illness. Appellant argues that the trial court erred in
committing him under ORS 426.130 because the record lacked clear and convinc-
ing evidence to establish that he was a person with mental illness, as defined by
ORS 426.005(1)(f). In appellant’s view, his diagnosis of autism spectrum disorder
constituted a developmental disorder, not a mental disorder; thus, the state failed
to prove that he was a person who, because of a mental disorder was a danger to
others, i.e., a person with mental illness for purposes of a civil commitment under
ORS 426.130. Held: Autism spectrum disorder does not qualify as a mental disor-
der for purposes of ORS 426.005(1)(f) and civil commitment under ORS 426.130.
Accordingly, because the evidence was that appellant’s only diagnosis was autism
spectrum disorder, there was not sufficient evidence in the record to support the
trial court’s determination that appellant was a person with mental illness.
    Reversed.



    Marcia L. Buckley, Judge.
    Alexander C. Cambier and Multnomah Defenders, Inc.,
filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rolf C. Moan, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
    POWERS, J.
    Reversed.
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323 Or App 246
 (2022)                              247

        POWERS, J.
         In this civil commitment proceeding, appellant
appeals from a judgment committing him to the custody of
the Mental Health Division for a period not to exceed 180
days and an order prohibiting the purchase and posses-
sion of firearms. In his sole assignment of error, appellant
argues that the trial court erred in committing him under
ORS 426.130 because the record lacked clear and convinc-
ing evidence to establish that he was a person with men-
tal illness, as defined by ORS 426.005(1)(f). In appellant’s
view, his diagnosis of autism spectrum disorder constituted
a developmental disorder, not a mental disorder; thus, the
state failed to prove that he was a person who, because of a
mental disorder was a danger to others, i.e., a person with
mental illness for purposes of a civil commitment under
ORS 426.130. As explained below, we conclude that autism
spectrum disorder does not qualify as a mental disorder
for purposes of ORS 426.005(1)(f). Accordingly, because the
trial court erred in finding that appellant was a person with
mental illness, we reverse.
         Neither party has requested that we review the
record de novo, and we conclude that this is not an “excep-
tional” case for purposes of de novo review. See ORAP 5.40(8)(c)
(providing that the court will exercise its discretion to
review de novo “only in exceptional cases”). Thus, we view
the evidence, as supplemented and buttressed by permissi-
ble derivative inferences, in the light most favorable to the
trial court’s disposition and assess whether, when so viewed,
the record is legally sufficient to permit that outcome. State
v. T. W. W.,
289 Or App 724, 726
,
410 P3d 1032
 (2018). We
review questions of statutory construction for legal error.
State v. C. P.,
310 Or App 631, 636
,
486 P3d 845
 (2021).
         On appeal, appellant’s challenge is narrow. He does
not challenge the trial court’s finding of dangerousness to
others, nor does he dispute his diagnosis of autism spectrum
disorder. Instead, he argues that the state failed to prove
that he had a mental disorder for purposes of civil com-
mitment under ORS 426.130 because his autism spectrum
disorder was a developmental disability or disorder rather
than a mental disorder. Although appellant has framed his
248                                          State v. A. B. K.

argument in terms of the state failing to present sufficient
evidence in this particular case, we also understand his
argument to suggest that the state could not, as a matter of
law, prove that autism spectrum disorder is a “mental dis-
order” as defined by ORS 426.005(1)(f) for purposes of civil
commitment under ORS 426.130.
         The state responds that the record entitled the trial
court to conclude that appellant’s autism spectrum disorder
was a mental disorder for purposes of a civil commitment
under ORS 426.130. Noting that the legislature has not
defined the term “mental disorder,” the state argues that
the trial court was entitled to rely on expert witnesses and
the record as a whole to determine whether appellant had
a mental disorder. Based on expert testimony showing that
appellant has autism spectrum disorder and because the
Diagnostic and Statistical Manual of Mental Disorders (5th
ed 2013) (DSM-5) describes autism spectrum disorder as a
“mental disorder,” the state argues that there was sufficient
evidence for the trial court to conclude that appellant had a
mental disorder.
         Although neither party engages in a statutory inter-
pretation analysis to determine whether autism spectrum
disorder qualifies as a “mental disorder” within the mean-
ing of ORS 426.005(1)(f), we begin with that question. See
Strasser v. State of Oregon,
368 Or 238, 260
,
489 P3d 1025
(2021) (explaining that an appellate court has an indepen-
dent duty to correctly interpret any statute that comes before
it, “regardless of the arguments and interpretations offered
by the parties”); Stull v. Hoke,
326 Or 72, 77
,
948 P2d 722
(1997) (observing that an appellate court is responsible for
identifying the correct interpretation of a statute, “whether
or not asserted by the parties”). Accordingly, we consider the
statute’s text in context, with reference to pertinent legisla-
tive history, consistently with the methodology described in
State v. Gaines,
346 Or 160, 171-72
,
206 P3d 1042
 (2009).
         ORS 426.005 defines terms used within the statu-
tory framework for a civil commitment of a person with men-
tal illness under ORS 426.130. See ORS 426.005(1) (defin-
ing terms used in ORS 426.005 to 426.390); ORS 426.130
(providing for the civil commitment of a person with mental
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323 Or App 246
 (2022)                                  249

illness). In this case, we focus on ORS 426.005(1)(f), which
provides, in part:
      “ ‘Person with mental illness’ means a person who,
   because of a mental disorder, is one or more of the following:
      “(A)   Dangerous to self or others.”

ORS 426.005 does not define the phrase “mental disorder.”
When the legislature has not defined a term, we ordinarily
look to the plain meaning of a statute’s text as a key first
step in determining what a particular term means. Comcast
Corp. v. Dept. of Rev.,
356 Or 282, 295
,
337 P3d 768
 (2014).
We frequently consult dictionary definitions of the terms on
the assumption that, if the legislature did not give the term
a specialized definition, the dictionary definition reflects the
meaning that the legislature would naturally have intended.
Id. at 296
. An important exception to that general approach
arises when the legislature uses technical terminology—
often called “terms of art”—drawn from a specialized trade
or field.
Id.
 In that circumstance, we look to the meaning
and usage of those terms in the discipline from which the
legislature borrowed them.
Id.
 For example, when the legis-
lature uses terms drawn from disciplines such as psychiatry
or medicine, the court might consider the DSM-5. See
id.
 at
296-97 (citing Tharp v. PSRB,
338 Or 413, 423
,
110 P3d 103
(2005) (explaining that, in the statute providing for guilty
except for insanity defense, “ ‘mental disease or defect’ and
‘personality disorder,’ * * * are terms of art that are used
in the context of professional disciplines such as psychiatry
and psychology”); Mueller v. PSRB,
325 Or 332, 339
,
937 P2d 1028
 (1997) (observing that, in the context of deter-
mining the jurisdiction of the Psychiatric Security Review
Board over the petitioner, the phrase “personality disorder”
is a “term of art as to which the DSM-III was the definitive
source”)).
         Accordingly, we look to the DSM-5, which provides:
       “Each disorder identified in Section II of the manual
   [Diagnostic Criteria and Codes] * * * must meet the defini-
   tion of a mental disorder. Although no definition can cap-
   ture all aspects of all disorders in the range contained in
   DSM-5, the following elements are required:
250                                             State v. A. B. K.

          “A mental disorder is a syndrome characterized by
      clinically significant disturbance in an individual’s cog-
      nition, emotion regulation, or behavior that reflects a
      dysfunction in the psychological, biological, or devel-
      opmental processes underlying mental functioning.
      Mental disorders are usually associated with signif-
      icant distress or disability in social, occupational, or
      other important activities. An expectable or culturally
      approved response to a common stressor or loss, such
      as the death of a loved one, is not a mental disorder.
      Socially deviant behavior (e.g., political, religious, or
      sexual) and conflicts that are primarily between the
      individual and society are not mental disorders unless
      the deviance or conflict results from a dysfunction in
      the individual, as described above.”

DSM-5 at 20.
          The DSM-5 explains that “[t]his definition of men-
tal disorder was developed for clinical, public health, and
research purposes” and that “[a]dditional information is
usually required beyond that contained in the DSM-5 diag-
nostic criteria in order to make legal judgments[.]”
Id.
 It also
contains a cautionary statement as to “the risks and limita-
tions of its use in forensic settings[,]” describing “the imper-
fect fit between the questions of ultimate concern to the law
and the information contained in a clinical diagnosis.” Id. at
25. Importantly, the DSM-5 observes that “the clinical diag-
nosis of a DSM-5 mental disorder * * * does not imply that
an individual with such a condition meets legal criteria for
the presence of a mental disorder or a specified legal stan-
dard[.]” Id.
         The DSM-5 subsequently includes autism spectrum
disorder in Section II, Diagnostic Criteria and Codes, as a
neurodevelopmental disorder, which is “a group of conditions
with onset in the developmental period” that also includes
conditions such as “intellectual disability (intellectual devel-
opmental disorder).” Id. at 31. The discussion in the DSM-5
of autism spectrum disorder includes diagnostic criteria,
recording procedures, specifiers, and diagnostic features,
among other information. In describing the diagnostic fea-
tures of autism, the DSM-5 provides, “Autism spectrum dis-
order encompasses disorders previously referred to as early
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323 Or App 246
 (2022)                                                251

infantile autism, childhood autism, Kanner’s autism, high-
functioning autism, atypical autism, pervasive developmen-
tal disorder not otherwise specified, childhood disintegra-
tive disorder, and Asperger’s disorder.” Id. at 53.
          The inclusion of a particular condition in the DSM-5,
however, is not necessarily the definitive indicator of what
qualifies as a mental disorder for purposes of civil commit-
ment, as the cautionary notes in the DSM-5 provide and our
case law interpreting related statutes suggests. Our recent
decision in State v. H. L. C.,
318 Or App 449
,
507 P3d 346
(2022), is instructive. In H. L. C., we concluded that an intel-
lectual disability does not qualify as a mental disorder for
purposes of ORS 426.701, the statute that provides for the
civil commitment of extremely dangerous persons with men-
tal illness to the Psychiatric Security Review Board (PSRB).1
H. L. C.,
318 Or App at 450
. At the time of the appellant’s com-
mitment hearing, neither ORS 426.701 nor the administra-
tive rules adopted by the PSRB to carry out the provisions of
ORS 426.701 addressed whether a mental disorder included
an intellectual disability.2 H. L. C.,
318 Or App at 452
.

    1
       ORS 426.701 provides, in part:
         “(3)(a) At the hearing on the petition, the court shall order the person
    committed as an extremely dangerous person with mental illness under the
    jurisdiction of the Psychiatric Security Review Board for a maximum of 24
    months if the court finds, by clear and convincing evidence, that:
         “(A) The person is extremely dangerous;
         “(B) The person suffers from a qualifying mental disorder that is resis-
    tant to treatment; and
         “(C) Because of the qualifying mental disorder that is resistant to treat-
    ment, the person committed one of the following acts: * * *[.]
         “* * * * *
         “(13) The board shall adopt rules to carry out the provisions of this sec-
    tion and ORS 426.702.”
    2
       OAR 859-200-0020 (Feb 22, 2021), which defined mental disorder for pur-
poses of ORS 426.701 at the time of commitment at issue in H. L. C., was amended
before we issued our decision in that case and now expressly provides that an
intellectual disability or developmental disability does not qualify as a mental
illness, i.e., a qualifying mental disorder. OAR 859-200-0020 (Jan 13, 2022) pro-
vides, in part:
         “(10) ‘Qualifying Mental disorder’ means a mental illness that is resis-
    tant to treatment. A “qualifying mental disorder” is resistant to treatment
    if, after receiving care from a licensed psychiatrist and exhausting all rea-
    sonable psychiatric treatment, or after refusing psychiatric treatment, the
    person continues to be significantly impaired in the person’s ability to make
252                                                          State v. A. B. K.

Mental disorder was not statutorily defined and, although
an administrative rule purported to define mental disorder,
its definition was not helpful.
Id.
 We, therefore, turned to
the ordinary meaning of the terms “mental disorder” and
“intellectual disability” as defined by a dictionary, and we
considered the context provided by related statutes, partic-
ularly ORS chapter 427.
Id. at 452-53
. We did not, however,
consider the DSM-5, which categorizes intellectual dis-
ability as a mental disorder. Rather, based on the ordinary
meanings of mental disorder and intellectual disability, we
inferred that “the legislature would have understood that
an intellectual disability is not a mental disorder.” H. L. C.,
318 Or App at 453
. We further concluded that the legisla-
ture intended to distinguish between mental disorder and
intellectual disability because of the organization of ORS
chapters 426 and 427, observing that “ORS chapter 426
applies to persons with mental illness and nowhere uses the
term intellectual disability, while ORS chapter 427 applies
to persons with an intellectual or developmental disability
and nowhere uses the term mental illness or mental disor-
der.”
Id.
 In particular, we pointed to ORS 427.290, which
outlines commitment procedures for a person with an intel-
lectual disability. Id.; see ORS 427.290.3 We reasoned that

   competent decisions and to be aware of and control extremely dangerous
   behavior.
        “(11) ‘Mental illness’ means:
        “(a) Any diagnosis of mental disorder which is a significant behavioral
   or psychological syndrome or pattern that is associated with distress or dis-
   ability causing symptoms or impairment in at least one important area of an
   individual’s functioning that is resistant to treatment.
        “(b) The term ‘mental illness’ does not include an abnormality mani-
   fested solely by repeated criminal or otherwise antisocial conduct. The term
   ‘mental illness’ does not include a disorder constituting solely a personality
   disorder and excludes a diagnosis of an intellectual disability or developmen-
   tal disability as defined in ORS 427.005.”
   3
     ORS 427.290 provides, in part:
        “After hearing all of the evidence, and reviewing the findings of the
   investigation and other examiners, the court shall determine whether the
   person has an intellectual disability and because of the intellectual disability
   is either dangerous to self or others or is unable to provide for the personal
   needs of the person and is not receiving care as is necessary for the health,
   safety or habilitation of the person. * * * If in the opinion of the court the per-
   son has, by clear and convincing evidence, an intellectual disability and is in
   need of commitment for residential care, treatment and training, the court
   may order as follows:
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323 Or App 246
 (2022)                                              253

the presence of the provision in ORS chapter 427 specifically
providing for the commitment of persons with intellectual
disabilities further supported “the legislature’s intention to
not treat a person with an intellectual disability as a per-
son with a mental disorder.” H. L. C.,
318 Or App at 453
.
Ultimately, we concluded that an intellectual disability did
not qualify as a mental disorder for purposes of the civil
commitment of an extremely dangerous person with a men-
tal illness.
Id.
         Similarly, in this case, despite the broad definition
in the DSM-5 of mental disorder and its categorization of
autism spectrum disorder as a mental disorder, the context
provided by related statutes—viz., ORS chapter 427, ORS
426.701, and our prior interpretation of those statutes—
signifies that the legislature did not intend to treat a person
with a developmental disability such as autism spectrum
disorder as a person with a mental disorder for purposes of
civil commitment under ORS 426.130.
         The contents of ORS chapter 427—which specifi-
cally addresses persons with developmental or intellectual
disabilities and references autism in the course of defin-
ing a “developmental disability”—indicates that the leg-
islature did not intend to treat a developmental disability
such as autism spectrum disorder as a mental disorder in
ORS chapter 426. See ORS 427.005(4)(c) (“ ‘Developmental
disability’ means autism * * * diagnosed by a qualified pro-
fessional that * * * [i]s not attributed primarily to other
conditions including, but not limited to, a mental or emo-
tional disorder[.]”).4 With some exceptions, ORS chapter 427
       “* * * * *
       “(3) If in the opinion of the court voluntary treatment and training or
   conditional release is not in the best interest of the person, the court may
   order the commitment of the person to the department for care, treatment or
   training. The commitment shall be for a period not to exceed one year with
   provisions for continuing commitment pursuant to ORS 427.235 to 427.290.”
   4
     ORS 427.005 provides, in part:
       “(4) ‘Developmental disability’ means autism, cerebral palsy, epilepsy or
   other condition diagnosed by a qualified professional that:
       “(a) Originates before an individual is 22 years of age and is expected to
   continue indefinitely;
       “(b) Results in a significant impairment in adaptive behavior as mea-
   sured by a qualified professional;
254                                                       State v. A. B. K.

treats persons with developmental and intellectual disabil-
ities similarly, and the chapter provides for a wide range
of rights and services for persons with developmental and
intellectual disabilities and establishes the Oregon Human
Rights Commission, the purpose of which “is to safeguard
the dignity and basic human rights of individuals who have
an intellectual or developmental disability.” ORS 427.401
(establishing the Oregon Human Rights Commission). See,
e.g., ORS 427.107 (enumerating rights of persons receiving
developmental disability services); ORS 427.107(b) (“ ‘Person’
means an individual who has an intellectual or developmen-
tal disability as defined in ORS 427.005 and receives services
from a program or facility.”); ORS 427.007 (“Individuals with
intellectual and other developmental disabilities and soci-
ety as a whole benefit when the individuals exercise choice
and self-determination[.]”); ORS 427.121 (addressing right
of an adult with intellectual or developmental disabilities to
choose community living setting). As we reasoned in H. L. C.,
the legislature’s intent to distinguish a developmental or
intellectual disability from a mental disorder or mental ill-
ness is manifest in the separate organization of ORS chap-
ter 427 and ORS chapter 426. See H. L. C.,
318 Or App at 453
 (so concluding). ORS chapter 427 expansively addresses
developmental disabilities while ORS chapter 426 does not
use the term developmental disability, which implies that
the civil commitment procedures in ORS chapter 426 are
not intended to encompass people diagnosed solely with a
developmental disability. Cf. PGE v. Bureau of Labor and
Industries,
317 Or 606, 611
,
859 P2d 1143
 (1993) (setting out
contextual rules that “use of a term in one section and not
in another section of the same statute indicates a purpose-
ful omission, and that the use of the same term through-
out a statute indicates that the term has the same mean-
ing throughout the statute” (citations omitted)). At the very
least, the context provided by ORS chapter 427 offers no
indication that the legislature intended persons diagnosed

        “(c) Is not attributed primarily to other conditions including, but not
   limited to, a mental or emotional disorder, sensory impairment, substance
   abuse, personality disorder, learning disability or attention deficit hyperac-
   tivity disorder; and
        “(d) Requires supports similar to those required by an individual with
   an intellectual disability.”
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323 Or App 246
 (2022)                                                255

solely with developmental disabilities such as autism spec-
trum disorder to be encompassed within the civil commit-
ment procedures provided in ORS chapter 426.
          We note as well that, under the administrative rule
in effect at the time of appellant’s commitment, a develop-
mental disability was not a qualifying mental disorder for
the civil commitment of an extremely dangerous person with
mental illness. ORS 426.701 provides for the commitment of
extremely dangerous persons with mental illness, and ORS
426.701(13) grants rulemaking authority to the PSRB to
carry out the provisions of ORS 426.701. The administrative
rule in effect at the time of appellant’s commitment hear-
ing provided that the “term ‘mental disorder’ * * * excludes
a diagnosis of a developmental disability[.]” OAR 859-200-
0020(9)(b) (Mar 5, 2014).5 Thus, a person could not be civilly
committed under the statutory framework for an extremely
dangerous person if their diagnosis was a developmental
disability, e.g., autism spectrum disorder. Although that
exclusion stems from an administrative rule promulgated by
an agency rather than a statute enacted by the legislature
and applies to a different statutory framework than ORS
426.130, we nevertheless view that exclusion as informative
that civil commitments under ORS 426.130 are likewise not
intended to apply on the basis of a developmental disability.
That is, if a person cannot be committed under the ORS
426.701 extremely dangerous standard on the basis of a
developmental disability such as autism spectrum disorder,
we conclude that it is likely that the legislature intended
    5
      OAR 859-200-0020 (Mar 5, 2014) provided, in part:
         “(9) ‘Mental disorder’ means:
         “* * * * *
         “(b) The term ‘mental disorder’ does not include an abnormality mani-
    fested solely by repeated criminal or otherwise antisocial conduct. The term
    ‘mental disorder’ does not include a disorder constituting solely a personality
    disorder and excludes a diagnosis of a developmental disability such as men-
    tal retardation, brain damage or other biological dysfunction that is associ-
    ated with distress or disability causing symptoms or impairment in at least
    one important area of an individual’s functioning.”
As noted above, OAR 859-200-0020 has since been amended and now expressly
provides, in part, that “the term ‘mental illness’ does not include a disorder con-
stituting solely a personality disorder and excludes a diagnosis of an intellectual
disability or developmental disability as defined in ORS 427.005.” OAR 859-200-
0020(11)(b) (Jan 13, 2022).
256                                         State v. A. B. K.

that a person could likewise not be committed under the
ORS 426.130 civil commitment standard based solely on
having a developmental disability such as autism spectrum
disorder.
         Lastly, we have found no legislative history that
clarifies the legislature’s intent as to whether autism spec-
trum disorder is a “mental disorder” for purposes of ORS
426.005(1)(f) and ORS 426.130. See, e.g., State v. Smith,
71 Or App 205, 208
,
692 P2d 120
 (1984) (explaining that
the legislative history of ORS 426.005 does not clarify the
meaning of “mental disorder”).
         In sum, despite the categorization by the DSM-5 of
autism spectrum disorder as a mental disorder, we conclude
that the legislature did not intend to include developmental
disorders such as autism spectrum disorder as mental dis-
orders for purposes of ORS 426.005(1)(f) and civil commit-
ment under ORS 426.130. The legislature, of course, could
broaden the civil commitment framework if it determines
that, as a matter of policy, a diagnosis that is listed in the
DSM-5, such as autism spectrum disorder, should auto-
matically qualify as a mental disorder for purposes of civil
commitments under ORS 426.130. In our view, however, the
context provided by related statutes leads us to conclude
that the legislature did not intend to include developmental
disorders such as autism spectrum disorder as mental dis-
orders for purposes of civil commitment under ORS 426.130.
See ORS 174.010 (providing that “the office of the judge is
simply to ascertain and declare what is, in terms or in sub-
stance, contained [in a statute], not to insert what has been
omitted, or to omit what has been inserted”).
         Having concluded that autism spectrum disorder
is not, as a matter of law, a “mental disorder” for purposes
of ORS 426.005(1)(f) and ORS 426.130, we turn to whether
there was sufficient evidence in the record to support the
trial court’s finding that appellant was a person with men-
tal illness. At the commitment hearing, the evidence was
that appellant’s only diagnosis was autism spectrum disor-
der. Because autism spectrum disorder does not qualify as
a mental disorder for purposes of a civil commitment under
ORS 426.130, there was not sufficient evidence in the record
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323 Or App 246
 (2022)                            257

to support the trial court’s determination that appellant was
a person with mental illness. Accordingly, the trial court
erred in finding that appellant was a person with a mental
illness.
        Reversed.