State v. B. L. W.

No. 758               October 30, 2024                    639

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 In the Matter of B. L. W.,
          a Person Alleged to have Mental Illness.
                   STATE OF OREGON,
                        Respondent,
                             v.
                          B. L. W.,
                         Appellant.
               Marion County Circuit Court
                   23CC06263; A182788

   Michael Y. Wu, Judge pro tempore.
   Argued and submitted September 11, 2024.
   Christopher J. O’Connor argued the cause for appellant.
Also on the brief was Multnomah Defenders, Inc.
   Inge D. Wells, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Mooney, Presiding Judge, Lagesen, Chief Judge,
and Hellman, Judge.
   LAGESEN, C. J.
   Reversed.
640                                                              State v. B. L. W.

            LAGESEN, C. J.
         This is another civil commitment case in which the
state did not follow the statutory procedures that govern
civil commitments. Specifically, the two citations issued to
appellant did not “stat[e] the nature of the information filed
concerning [appellant] and the specific reasons the person is
believed to be a person with mental illness.”1 ORS 426.090.
Pointing to the deficient citations on appeal, appellant
argues that the trial court plainly erred by proceeding with
the commitment hearing in view of the patently insufficient
citations.2 We agree and reverse.
         As we previously have explained, when the state
seeks to deprive a person of their liberty through the
civil commitment process, the Due Process Clause of the
Fourteenth Amendment to the United States Constitution
requires, among other things, that the state provide pre-
hearing notice to the person “ ‘of the specific issues the per-
son must meet.’ ” State v. T. C., 

, 

 (2023), rev den, 

 (2024) (quoting In re Gault,

, 

, 

 (1967) (brack-
ets omitted)). ORS 426.090 implements that constitutional
right in Oregon, conferring “upon a ‘person alleged to have
a mental illness’ a right to prehearing, in-person, written
     1
       The record reflects that appellant failed to appear at the hearing scheduled
by the initial citation, resulting in a second citation.
     2
       Appellant also argues that the trial court plainly erred in proceeding with
the hearing in two different respects: (1) by proceeding on a “Notification of Mental
Illness” that lacked legible signatures from the two people who initiated the pro-
ceeding under ORS 426.070(1)(a); and (2) by proceeding on the notification because
ORS 426.070 required the notification to go to the community mental health direc-
tor, not the court. On this record neither of those contentions establishes plain error.
As to the latter, subsequent pages of the Notification of Mental Illness indicate
that the notification was copied to the “County Mental Health Program Director or
Designee,” and it is not obvious that filing a notification with the court and copying
it to the community mental health director violates ORS 426.070. Likewise, it is
not obvious that the trial court erred by acting on the notification in the absence of
legible signatures under the circumstances present here. Although the lack of legi-
ble signatures could be problematic if there were no way to identify the signatories,
the notification was signed before a Notary Public, and was accompanied by other
information that would allow the court to ascertain who had signed the notification.
Moreover, not all of the procedures and processes described in ORS chapter 426 give
rise to procedural rights, or protect existing constitutional rights, or at least it is not
obvious that they do. While adequate prehearing notice is, of course, a core due pro-
cess right, it is difficult to say the same about the requirement that the notification
of mental illness be given to the community mental health director.
Cite as 

 (2024)                                641

notice of a proposed civil commitment proceeding, including
the ‘specific reasons’ for it.” T. C., 

. Even
absent an objection—as is the case here—the state’s fail-
ure to comply with the statutory and constitutional notice
requirement is reversible error “unless the record allows for
the affirmative inference that the appellant waived the pro-
cedural protection at issue or, alternatively, received a func-
tionally equivalent protection in a different form.” 

.
          In this case, the citations did not supply the “specific
reasons” that appellant was believed to be subject to commit-
ment or describe the information on which the state was bas-
ing its case. Instead, they simply stated as “[a]dditional infor-
mation” that “[a]n investigation has been conducted pursuant
to ORS Chapter 426. Based on that investigation, the court
finds probable cause to believe that you are mentally ill as
defined by that statute.” That information is in no way suffi-
cient to give notice of the specific issues that appellant needed
to be prepared to meet at the hearing. It did not reveal a the-
ory of commitment—whether appellant was a danger to her-
self, a danger to others, or unable to meet her basic needs—or
otherwise give any inkling of what the state’s case might be.
No one could read those citations and know what to expect at
the hearing or how to defend their liberty.
          Despite those grave deficiencies, the state argues
that we should affirm. The state acknowledges that the cita-
tion did not describe the “specific reasons” that appellant
“was believed to be a person with mental illness.” The state
does not dispute that the failure to provide proper prehearing
notice is a violation of petitioner’s core procedural rights that,
under our case law, requires reversal. See T. C., 

 (explaining why failure to provide proper prehearing
notice is a legally cognizable harm) (quoting Villanueva v.
Board of Psychologist Examiners, 

, 

 (2002)). Instead, the state points—correctly—to the
fact that appellant did not preserve her claim of error, which
means that we must decide whether to exercise our discre-
tion to correct it. State v. Ortiz, 

, 

(2024) (“To reverse based on an unpreserved, plain error, the
court must, in addition to determining that the error was
not harmless, consider factors relevant to the court’s exer-
cise of discretion” to correct the error). The state then urges
642                                                State v. B. L. W.

us not to exercise our discretion to correct the error. Noting
that ORS 426.074(3) provides that a “copy of the investiga-
tion report shall be provided as soon as possible, but in no
event later than 24 hours prior to the hearing, to the person
and the person’s counsel,” the state asserts that “there is no
reason to believe that that procedure was not followed in this
case,” and that we should infer that information other than
the citation supplied appellant with the necessary notice.
          We are not persuaded. Contrary to the state’s argu-
ment, on this record, there is reason to believe that appel-
lant herself was not provided with the investigation report in
advance of the hearing. The return of service for the second
citation recites that the citation was served on appellant in
the courtroom on the day of the hearing. The return of service
for the first citation is not signed or dated, and the space for
printing the server’s name is blank. It recites that there was
a “copy handed by” a named individual, but does not specify
who that named person is, let alone what it entailed, and does
not specify where and when that “copy handed by” occurred,
let alone what it entailed. Consequently, because the record
indicates that appellant did not personally receive the cita-
tion until she was in the courtroom, it gives us little reason to
think that appellant personally was provided with the inves-
tigation report before the hearing.
         Therefore, as we have in other cases in which the
state afforded a civil committee with inadequate prehearing
notice, we exercise our discretion to correct the error. The
explanation for doing so is the same:
   “We therefore exercise our discretion to correct it for all the
   same reasons we have done so in our prior cases: ‘the nature
   of civil commitment proceedings, the relative interests of
   the parties in those proceedings, the gravity of the viola-
   tion, and the ends of justice.’ State v S. J .F., 

, 

 (2011). As discussed, civil commitment pro-
   ceedings deprive an individual of physical and reputational
   liberty. The violation—deprivation of in-person prehearing
   notice—was grave, and appellant did not waive that right.
   In our view, the ends of justice warrant correction.”
T. C., 

.
         Reversed.