State v. T. C.

                                      558

   Submitted September 21, 2022, resubmitted en banc March 3, reversed
  August 23, 2023, petition for review denied January 12, 2024 (

)


                      In the Matter of T. C.,
             a Person Alleged to have Mental Illness.
                         STATE OF OREGON,
                             Respondent,
                                 v.
                                   T. C.,
                                 Appellant.
                    Marion County Circuit Court
                       21CC05628; A177184
                                  

    In this civil commitment case, the state did not personally serve appellant
with the prehearing citation as required by ORS 426.090. Appellant did not preserve the error. The state argues that the error was harmless. Held: Under Court
of Appeals case law, the trial court committed reversible error when it committed
appellant when she had not been personally served with the citation as required
by ORS 426.090. State v. M. D. M. G., 

, 

 (2021). The
court declined to depart from the approach taken in its case law. Hellman, J.,
wrote a concurring opinion, joined by Mooney and Jacquot, JJ. Powers, J., wrote
a dissenting opinion, joined by Kamins and Pagán, JJ. Pagán, J., wrote a dissenting opinion, joined by Kamins, J.
    Reversed.


    En Banc
    Matthew L. Tracey, Judge pro tempore.
   Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jona J. Maukonen, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Chief Judge, and Ortega, Egan, Tookey,
Shorr, Aoyagi, Powers, Mooney, Kamins, Pagán, Joyce,
Hellman, and Jacquot, Judges.
    LAGESEN, C. J.
    Reversed.
Cite as 

 (2023)                        559

  Lagesen, C. J., filed the opinion of the court in which
Ortega, Egan, Tookey, Shorr, Aoyagi, Mooney, Joyce,
Hellman, and Jacquot, JJ., joined.
  Hellman, J., concurred and filed an opinion in which
Mooney and Jacquot, JJ., joined.
  Powers, J., dissented and filed an opinion in which
Kamins and Pagán, JJ., joined.
  Pagán, J., dissented and filed an opinion in which
Kamins, J., joined.
560                                                             State v. T. C.

           LAGESEN, C. J.
         This is a civil commitment case in which the state
did not follow the statutory procedures that govern civil
commitments. Specifically, the state did not provide appellant with the prehearing citation required by ORS 426.090.
We took this case into full court to consider the state’s argument that, contrary to our longstanding practice of viewing the state’s violations of a civil committee’s procedural
rights as grounds for reversal of a civil commitment decision, we should view that omission as harmless. See ORS
19.415(2) (stating that “[n]o judgment shall be reversed or
modified except for error substantially affecting the rights
of a party”). We reject it.
         The facts are few. Appellant was in jail on pending
charges when an evaluator determined that she was unable
to aid and assist in her defense and recommended that “she
should receive restoration services at a hospital level of
care[.]” The court, instead, initiated this civil commitment
proceeding.1 It appointed counsel to represent appellant and
then issued a citation to appellant “c/o” her appointed attorney, although ORS 426.090 requires that “[t]he citation shall
be served upon the person by delivering a duly certified copy
of the original thereof to the person in person prior to the
hearing.” The record contains no evidence that the citation
was provided to appellant before the hearing or that appellant’s appointed counsel met with appellant in advance of
the hearing.
         After granting a continuance at the state’s request,
the court held the hearing on the citation. Before the hearing, appellant’s appointed attorney filed a motion seeking to
exclude appellant’s statements in the precommitment investigation report on the ground that counsel had not been present for the investigation. The court denied the motion. At
the hearing, appellant’s attorney cross-examined the state’s
witnesses and argued that the evidence did not support
     1
       It appears that the court may have issued the order initiating civil commitment proceedings on the request of the district attorney. The district attorney’s
name and mailing address is imprinted in the margin of the order. The record
is silent as to how and why what started as an aid-and-assist evaluation and
recommendation for restorative treatment transformed into a civil commitment
proceeding.
Cite as 

 (2023)                                 561

commitment. Appellant indicated directly to the court that
she wanted to call witnesses. After the court allowed appellant to confer with counsel off the record, counsel indicated
upon resuming the hearing that she did not think additional
time for consultation would assist appellant, and appellant
did not call witnesses. The court ultimately committed appellant, finding that she was a danger to others. The court’s
order directed “that the Marion County Sheriff’s Office will
transport [appellant] to the Oregon State Hospital after any
preexisting holds have cleared.”
         Appellant appealed. On appeal, she assigns error to
the trial court’s decision to conduct a civil commitment hearing in the absence of a citation that was issued in accordance
with ORS 426.080 and ORS 426.090. She acknowledges that
the error is not preserved but argues that it is plain and that
we should exercise our discretion to correct it, something we
routinely have done in similar cases. Appellant notes that
prehearing notice is a core component of her due process
rights, pointing out that
      “For a person to be prepared to meaningfully participate in their hearing, they must be served a citation with
   notice of the allegations against which they are expected to
   defend themselves, as well as notice of their rights, including their right to use a subpoena, so that they can meaningfully prepare a defense.”
         In response, the state concedes that the trial court
erred by proceeding with the hearing where, as here, appellant was not personally served with the citation. The state
nevertheless argues that we should not reverse because, in
the state’s view, “there was no violation of appellant’s due
process rights or any other harm to appellant.” The state
argues that “[a]ppellant was represented by counsel who
had been apparently representing her for both the civil commitment and related criminal charges,” and notes that the
attorney had filed a motion to exclude appellant’s statements
in the investigation report, cross-examined witnesses at the
hearing, and otherwise advocated for appellant during the
hearing. That, in the state’s view, precludes the conclusion
that appellant suffered any harm from not being given prehearing personal notice of the civil commitment proceeding,
as required by ORS 426.090.
562                                                 State v. T. C.

          We reject the state’s argument. It undervalues the
critical role prehearing personal notice plays in ensuring that
a potential civil committee is prepared for a proceeding that
can result in a severe deprivation of liberty. Our case law has
long recognized the harm that inheres when people are not
provided with fair notice of how and why their liberty may be
taken away, and we decline to depart from that case law now.
         Where the state seeks to civilly commit a person for
any purpose, prehearing notice is a core component of the due
process protections afforded by the Fourteenth Amendment
to the United States Constitution: “Notice, to comply with due
process requirements, must be given sufficiently in advance of
scheduled court proceedings so that reasonable opportunity to
prepare will be afforded,” and must also advise “of the specific
issues that [the person] must meet.” In re Gault, 

, 

, 

 (1967); see Addington v.
Texas, 

, 

, 

 (1979)
(“This Court repeatedly has recognized that civil commitment
for any purpose constitutes a significant deprivation of liberty
that requires due process protection.” (Citing Gault, among
other cases.)). In Oregon, the legislature has codified that due
process protection in ORS 426.090. That statute confers upon
a “person alleged to have a mental illness” a right to prehearing, in-person, written notice of a proposed civil commitment
proceeding, including the “specific reasons” for it:
       “The judge shall issue a citation to the person alleged
   to have a mental illness stating the nature of the information filed concerning the person and the specific reasons
   the person is believed to be a person with mental illness.
   The citation shall further contain a notice of the time and
   place of the commitment hearing, the right to legal counsel, the right to have legal counsel appointed if the person
   is unable to afford legal counsel, and, if requested, to have
   legal counsel immediately appointed, the right to subpoena
   witnesses in behalf of the person to the hearing and other
   information as the court may direct. The citation shall be
   served upon the person by delivering a duly certified copy
   of the original thereof to the person in person prior to the
   hearing. The person shall have an opportunity to consult
   with legal counsel prior to being brought before the court.”
ORS 426.090.
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 (2023)                                 563

          Because of the central role ORS 426.090 plays
in ensuring due process where, as here, the state has civilly committed someone without complying with it, we routinely have reversed. State v. M. D. M. G., 

,

 (2021); State v. J. M.-G., 

, 

 (2021); State v. J. A. N., 

, 

 (2021); State v. C. T., 

, 

 (2021);
State v. J. R. W., 

, 

 (2020); State v.
R. E. J., 

, 

 (2020); State v. R. E. F.,

, 

 (2019). We have done so even
where, as here, no objection was raised to the failure to comply with ORS 426.090. This accords with our longstanding
recognition that the state’s failure to comply with an “integral part of [the] procedure” governing civil commitments is
reversible error unless the record allows for the affirmative
inference that the appellant waived the procedural protection
at issue or, alternatively, received a functionally equivalent
protection in a different form. State v. Allison, 

, 

 (1994); State v. D. B., 

, 

 (2000) (trial court’s failure either to conduct
an examination on the record or to inform the appellant of
his rights pursuant to ORS 426.100(1) was reversible error);
see also State v. Waters, 

, 

,
rev den, 

 (2000), cert den sub nom Waters v. Oregon,

, 

, 

 (2001) (differentiating between errors that involve failure to comply with
mandatory statutory procedures from other types of errors);
State v. Ritzman, 

, 

 (2004)
(trial court’s failure to provide advice of rights required by
ORS 426.100(1) was harmless error where record showed the
appellant had received the required advice in writing).
         As we explained in Allison,
      “[i]nvoluntary commitment proceedings involve the
   possibility of a ‘massive curtailment of liberty’ and, thus,
   implicate due process protections. Vitek v. Jones, 

, 

, 

 (1980). In Oregon,
   the legislature has developed the involuntary commitment
   procedures contained in ORS chapter 426. Those mandatory procedures are designed to ensure that all allegedly
   mentally ill persons get the benefit of a full and fair hearing before that person is committed.”
564                                              State v. T. C.

. The Oregon Supreme Court has held
that strict adherence to those procedures is what ensures
that Oregon’s civil commitment scheme, as a whole, comports with the federal constitution. State v. O’Neill, 

, 

 (1976) (“The state, when acting strictly
as provided in ORS Chapter 426, may legitimately intrude
on the privacy of an unfortunate individual if he is a ‘mentally ill person’ as defined in ORS 426.005.”). Although an
individual may waive the mandatory procedural protections
afforded by ORS chapter 426, we generally have required
the record to reflect that any waiver was knowing and voluntary. D. B., 

; Allison, 

 (citing State v. Meyrick, 

, 

(1992), for the proposition that the record must reflect a
knowing and voluntary waiver of the mandatory procedural
protections in ORS chapter 426, specifically in that case, the
advice of rights required by ORS 426.100(1)). In State v. May,

, 

 (1994), for example, we held
that the lack of an objection to the trial court’s failure to
provide the advice of rights mandated by ORS 426.100(1)
did not waive the appellant’s statutory right to receive that
advice, where the record did not demonstrate a waiver on
the record and, further, that the omission required reversal.
         Here, as in May, the record does not evidence a
waiver of appellant’s right to personal prehearing notice.
In fact, on this record, there is the distinct possibility that
appellant was not made aware, ahead of the hearing, that
the hearing was a civil commitment hearing, and not a
hearing connected to her criminal case. Although the state
speculates that appellant’s civil commitment lawyer represented her in the criminal case, the aid-and-assist evaluation identifies a different lawyer as representing appellant in the criminal case. The record contains no indication
that appellant met with her civil-commitment attorney in
advance of the hearing; the transcript of the hearing tends
to suggest that appellant’s first encounter with her attorney
was at the hearing itself. Had the court attempted to secure
a waiver of appellant’s right to prehearing notice to address
its violation of ORS 426.090, then the record might permit
the conclusion that the deprivation of appellant’s right to
personal prehearing notice was one that was harmless by
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 (2023)                                                 565

showing that appellant was apprised of the nature of the
proceeding, had an opportunity to confer with her lawyer
ahead of the hearing, and otherwise had a fair opportunity
to prepare for it. But the court did not do so.
         Arguing for a different result, the state points to
Ritzman, 

, in which we held that a trial
court’s failure to provide the advice of rights required by ORS
426.100(1) was harmless where the record demonstrated
that the appellant had signed and dated a written copy of
the same advice. The state argues that Ritzman stands for
the proposition that not all procedural errors require reversal. The state points out—correctly—that appellant received
the advice of rights required by ORS 426.100(1) at the start
of the hearing, that appellant’s lawyer acknowledged receiving the investigator’s report detailing the reasons for the
proposed commitment, and that appellant’s lawyer actively
litigated the case. Those facts, in the state’s view, demonstrate that appellant had a full and fair hearing such that
the failure to provide the prehearing notice required by ORS
426.090 should be deemed harmless.
         The dissenting opinions would choose the route proposed by the state. We are not persuaded that we should
proceed down that path.
         First, it would depart from a now long line of cases
deeming the failure to provide the prehearing notice, in
the form of the citation required by ORS 426.090, reversible error, regardless of whether the error was preserved.2
Although we agree with Judge Pagán that “[a] review for
plain error should be the exception, not the rule,” we have
effectively treated civil commitment cases in which the state
has failed to comply with mandatory procedural safeguards
as an exception to the rule for a very long time now. 327 Or
App at 583 (Pagán, J., dissenting). Also, unlike in Ritzman,
    2
      Judge Pagán’s dissenting opinion points out that some of these cases
involved concessions of error, suggesting that they were the product of the agreement of the parties and cautioning against letting them “become the driving force
behind the arc of our jurisprudence.” 327 Or App at 581 (Pagán, J., dissenting).
Our cases in which we accept a concession, however, reflect our own judgment on
whether a concession is legally correct. State v. R. L. W., 

, 

 (2014) (“We are not bound by concessions of error; we have an obligation
to make an independent determination of the appropriate disposition of a case.”).
The parties’ agreement does not determine the outcome; our judgment does.
566                                                             State v. T. C.

where the appellant had received the required advice in
writing, notwithstanding the court’s failure to deliver it in
the manner required by statute, there is no evidence in this
record that appellant herself was provided with any prehearing notice that would meet the requirements of ORS 426.090
or due process. Under ORS 426.090, appellant had a right to
personal notice that the court was considering civilly committing her. Instead, as noted, the citation was issued to
appellant “c/o” her appointed lawyer, a process that does not
accord with ORS 426.090.3 The lack of personal notice is a
deprivation of a substantial right in and of itself. As noted,
the lack of personal notice in a case like this one, in which
the potential civil committee is incarcerated on pending
charges, is particularly consequential because, without it,
the person will have little reason to know that the civil commitment hearing is something different from the person’s
criminal case.
         Second, apart from straying from our consistent
approach in cases in which an appellant’s rights under ORS
426.090 were not honored, it would stray from our general
approach in cases in which the other mandatory procedural
rights have not been honored. Our historical approach is
anchored in our understanding of the profound deprivation
of individual liberty—both physical and reputational—that
the state imposes when it civilly commits an individual. In
the words of the United States Supreme Court:
        “We have recognized that for the ordinary citizen, commitment to a mental hospital produces a massive curtailment of liberty, and in consequence requires due process
    protection. The loss of liberty produced by an involuntary
    commitment is more than a loss of freedom from confinement. It is indisputable that commitment to a mental hospital can engender adverse social consequences to the individual and that whether we label this phenomena ‘stigma’
    or choose to call it something else . . . we recognize that it
    3
      Judge Pagán’s dissenting opinion asserts that appellant “received a functionally equivalent protection in a different form.” 327 Or App at 579 (Pagán, J.,
dissenting). But the protections to which the dissenting opinion refers appear to
be additional procedural protections to which appellant was entitled as of right.
We are not persuaded that those protections are the functional equivalent of
the prehearing citation to which appellant was entitled, in view of the fact that
the legislature required those procedural safeguards in addition to the notice
required under ORS 426.090.
Cite as 

 (2023)                               567

   can occur and that it can have a very significant impact on
   the individual.”
Vitek, 

 (internal citations and quotation
marks omitted; ellipses in original). To safeguard the erroneous imposition of that profound deprivation of liberty,
our court, as explained, has required either that an appellant’s mandatory procedural rights be strictly honored or, in
the event that they are not, that a knowing and voluntary
waiver of those rights be made by the individual themselves,
not the individual’s lawyer. D. B., 

.
         D. B. is illustrative. There, we reversed an order of
civil commitment where the appellant’s lawyer purported
to waive the reading of rights required by ORS 426.100 on
the appellant’s behalf. 

. We did so because the trial
court had not examined the appellant on the record to ascertain whether that waiver was knowing and voluntary. 

The approach proposed by the state and the dissenting opinions, which would allow for affirmance where the state has
not honored a critical procedural right and the record does
not reflect a knowing and voluntary waiver, would heighten
the risk of an erroneous deprivation of liberty. That is
because it would permit the state to, in effect, strip away
a mandatory core procedural safeguard without requiring
it to contemporaneously demonstrate that, notwithstanding
the elimination of the safeguard, the proceeding could nonetheless proceed in a full and fair way.
         That is especially so in the circumstances present
here, where the disregarded procedural safeguard is the
precommitment notice provided by the ORS 426.090 citation. Contrary to the state’s argument, and the dissenting
opinions’ conclusion, an examination of the hearing that
occurred is a poor measure of the harm that may flow from
the failure to provide adequate prehearing notice. As the
United States Supreme Court explained in Gault, notice is
what allows a person time to prepare for a proposed deprivation of liberty; that is why it must be given a reasonable
time before the hearing. See, e.g., Gault, 

.
Were we to accept the premise of the state and the dissenting opinions that a hearing that, on its face, appears full
and fair, means any lack of prehearing notice was harmless,
568                                             State v. T. C.

even in the absence of an affirmative waiver, we would risk
undermining the core value of the protection afforded by the
notice requirement.
         Taking a slightly different approach, Judge Powers’s
dissenting opinion suggests that appellant has not adequately demonstrated harm because appellant’s explanation of the value of prehearing notice is phrased in generalities about the value of prehearing notice. 

(Powers, J., dissenting). As we understand Judge Powers’s
approach, he would require a civil committee deprived of
prehearing notice to create a record demonstrating how in
particular the violation of the person’s rights affected their
ability to prepare for a hearing, should the person wish to
seek reversal on the basis of that violation. That approach,
in our view, would risk severely undermining the right to
prehearing notice. It would risk transforming the state’s
mandatory statutory and constitutional obligations to provide prehearing notice into an obligation, on the part of a
civil committee, to demonstrate that notice could have made
a difference in every situation in which the state breaches
those obligations. An approach like the one our court has
taken historically—requiring the state to obtain a waiver or
otherwise demonstrate affirmatively that it afforded comparable procedural protection in a different way—keeps the
burden of compliance where the constitution and the legislature have placed it: on the state. Contrary to Judge Powers’s
suggestion, our approach is not akin to structural error. 327
Or App at 574 (Powers, J., dissenting). Under our historic
approach, if the state obtains a waiver of a procedural right
or demonstrates that it afforded a procedural protection
that is functionally equivalent to an omitted one, then the
state may well be able to demonstrate that, notwithstanding
the state’s failure to honor a particular right, that omission
is not one that requires reversal.
         Purdy v. Deere and Company, 

, 

 (2014), on which Judge Powers’s dissenting opinion
relies, does not point a different direction. See 327 Or App
at 573 (Powers, J., dissenting). At issue in Purdy was the
standard for determining whether an instructional or evidentiary error in the context of a civil jury trial affected
Cite as 

 (2023)                                             569

a party’s rights sufficiently to require reversal. 

. This case, in contrast, does not involve a question of
evidentiary or instructional error. Rather, this is a case in
which a proceeding went forward notwithstanding a violation of appellant’s right to prehearing, in-person notice compliant with ORS 426.090—a right that in and of itself is a
substantial one.
         We long have recognized this principle in other contexts, too. Our decision in Villanueva v. Board of Psychologist
Examiners, 

, 

 (2002), explains
clearly why the deprivation of adequate prehearing notice is
a harm in and of itself:
       “Beyond that, we do not agree that the failure to give
   petitioner adequate notice of the charges he faced was not
   prejudicial. Rather, the absence of adequate notice is prejudicial in and of itself. That proposition finds recognition
   in both the criminal and civil law. The state may not try
   a criminal defendant for a crime for which he or she has
   not been charged. State v. Wimber, 

, 

 (1992) (amending indictment); State v. Alben, 

, 

, rev den, 

 (1996).
   That is true without regard to whether the criminal defendant could have put on a defense to the uncharged crime.
   

 Similarly, in a civil action, the parties are limited to the
   issues that are raised by the pleadings, unless they explicitly or impliedly consent to try additional issues. See ORCP
   23 B; Northwest Marketing Corp. v. Fore-Ward Investments,
   

, 

 (2001); Cheryl Wilcox
   Property Management v. Appel, 

, 

 (1991). We see no reason why similar principles
   should not apply when an agency charges a licensee with
   violating his or her profession’s ethical rules. Indeed, as
   we explained in our initial opinion, the context of ORS
   183.415(2) supports our conclusion that the failure to give
   adequate notice is itself prejudicial.”

 (internal footnotes omitted).
        Again, absent a waiver on the record, it is difficult
to gauge from the face of a hearing the degree to which additional preparation time could have affected the outcome.4
    4
      In State v. K. R. B., 

, 

 (2021), we assumed without deciding that service of an otherwise-compliant citation immediately before
the hearing would violate ORS 426.090. 

. We deemed that potential
570                                                             State v. T. C.

Beyond that, we do not view it as our role to speculate, on
behalf of the state, that appellant’s case would not have been
any different if the state had honored her procedural rights.
Although sometimes we might guess about that correctly,
sometimes we will guess incorrectly and, in our view, the
approach we take should be the one that offers the individual
the highest level of protection against the risk of the erroneous deprivation of liberty that can occur when the state fails
to comply with mandatory procedural safeguards.
         Returning to Judge Pagán’s dissenting opinion, it
suggests that this approach is impractical. See 327 Or App
at 580 (Pagán, J., dissenting). We disagree. The procedural
safeguards to which the state must adhere to civilly commit an individual are neither onerous nor complex. The liberty interest they protect is of the highest order. And, in
the event that the state fails to comply with one or more
of those safeguards, the state or the court can seek a
waiver on the record from the subject of the civil commitment. Accordingly, we are not persuaded to depart from our
well-traveled course of reversing in civil commitment cases
where, as here, the mandatory procedural safeguards were
not adhered to in full, where the omitted safeguard was not
waived on the record, and where the committed person did
not receive the same safeguard (in this instance, prehearing
notice with the information required by ORS 426.090) in a
different form.
         One other point bears mentioning. As mentioned,
the court initiated this civil commitment proceeding after
an evaluator determined that appellant was unable to aid
and assist in her criminal case and was in need of restorative services. Under those circumstances, it might be easy
to think that the state’s omission of personal prehearing
notice should be forgiven; after all, how could that notice
make any difference to a person who lacks the capacity to
aid and assist in a criminal case? And, as a factual matter,
error in timing harmless where the record did not indicate that delay “caused
appellant or counsel not to be informed of the bases for the commitment or not to
have adequate time or information to prepare for the hearing.” Id. at 458. Here,
by contrast, the citation was never served on appellant although she had a right
to service in person. Under those circumstances, in view of Gault’s explanation of
the role prehearing notice plays in ensuring due process, we are not prepared to
say the complete deprivation of that critical right was harmless.
Cite as 

 (2023)                               571

it might not. But the rule of law requires the state to act as
if it can make a difference, so as to safeguard against the
erroneous deprivation of liberty, one of the gravest injuries
the state can inflict.
         For all those reasons, we conclude that the court
erred when it committed appellant when she had not been
served with the citation required by ORS 426.090. Although
the error was not preserved, under our case law, it is plain.
We therefore exercise our discretion to correct it for all of 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 violation,
and the ends of justice.” State v. S. J. F., 

, 

 (2011). As discussed, civil commitment proceedings 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 its correction.
         Reversed.
         HELLMAN, J., concurring.
        I concur in the majority’s opinion. I write separately
because footnote four and the majority’s treatment of State
v. K. R. B., 

, 

 (2021) raise an
important issue that is beyond the scope of our decision
today, but that may need to be addressed in a future case.
         In my view, the importance of prehearing service in
commitment cases is best understood not as a ministerial
issue of timing, but as an issue of opportunity. That includes
the opportunity for the person to learn why the state wants
to deprive them of liberty, to consult with counsel and prepare for the hearing, and to choose or decline offered mental
health treatment. A notice that is served immediately prior
to or during the hearing does not allow the opportunity for
those kinds of things to happen. Moreover, at that point,
obtaining the constitutionally guaranteed opportunity
becomes conditioned on the trial court’s discretion to allow a
continuance of the hearing, which inappropriately elevates
other considerations over the basic due process rights that
a person has in these situations. Thus, in my view, service
572                                                            State v. T. C.

immediately before or during the hearing suffers from the
same constitutional problems as lack of service altogether.
         This case does not engage with or resolve that question, and properly so. We were not presented with an explicit
argument to overrule K. R. B. And resolution of this case, in
which the appellant received no notice at all, does not require
us to determine whether there is a materially and legally
significant difference between notice that was not served
and notice that was served minutes before the hearing. But
under the majority’s legally correct understanding of the
importance and scope of the prehearing notice requirements
to satisfy due process, I question the continuing viability of
K. R. B. With those observations, I concur.
          Mooney, J., and Jacquot, J., join in this concurrence.
         POWERS, J., dissenting.
         In my view, because ORS 19.415(2) applies to the
failure to personally serve appellant with the citation as
required by ORS 426.090, appellant must demonstrate that
that error had a detrimental influence on her rights. I would
conclude that appellant has not done so under the circumstances of this case. Accordingly, I respectfully dissent.
         ORS 19.415(2) provides: “No judgment shall be
reversed or modified except for error substantially affecting the rights of a party.” Thus, consistent with that legislative command, an appellate court must affirm a judgment despite a trial court error in a similar manner to the
analysis that Article VII (Amended), section 3, of the Oregon
Constitution requires.1 State v. Davis, 

, 29 n 7, 

 (2003); see also 

 (explaining that “Oregon’s
constitutional test for affirmance despite error consists of a
single inquiry: Is there little likelihood that the particular
   1
     Article VII (Amended), section 3, provides, in part:
   “If the [reviewing court] shall be of [the] opinion, after consideration of all
   the matters thus submitted, that the judgment of the court appealed from
   was such as should have been rendered in the case, such judgment shall be
   affirmed, notwithstanding any error committed during the trial; or if, in any
   respect, the judgment appealed from should be changed, and the [reviewing]
   court shall be of [the] opinion that it can determine what judgment should
   have been entered in the court below, it shall direct such judgment to be
   entered in the same manner and with like effect as decrees are now entered
   in equity cases on appeal to [a reviewing] court.”
Cite as 

 (2023)                                   573

error affected the verdict?”). The standard required by
ORS 19.415(2) is a high one: the “error must—in an important or essential manner—have materially or detrimentally
influenced a party’s rights; it is insufficient to speculate
that the error might have changed the outcome in the case.”
Purdy v. Deere and Company, 

, 

(2014). As the Supreme Court has explained:
       “[A]n error ‘affecting’ a party’s rights is an error that
   can be said to ‘produce a material influence’ or ‘to have a
   detrimental influence’ on those rights, and not merely one
   that ‘might’ have changed the outcome of the case. The use
   of the adverb ‘substantially’ further limits the type of error
   that can result in reversal of a judgment. ‘Substantially’
   means ‘in a substantial manner,’ and the relevant definition of ‘substantial’ is ‘being of moment: IMPORTANT,
   ESSENTIAL.’ ”
Shoup v. Wal-Mart Stores, Inc., 

, 

(2003) (capitalization and internal quotation marks in original; citation and emphasis omitted).
         Importantly, ORS 19.415(2) requires the party
asserting the error to demonstrate that the error had the
required prejudicial effect. Purdy, 

; see also

 at 234 n 11 (Balmer, C. J., concurring) (explaining that
“the appellate court will conduct its review as to whether
the error ‘substantially affect[ed]’ the appellant’s rights
based on the record before it—and if the record includes
nothing that would permit the appellate court to reach that
conclusion, the result will be affirmance” (internal quotation marks and bracketed text in original)). Both Purdy and
Shoup articulate that the standard adopted by the legislature in ORS 19.415(2) applies “in every case” and that an
appellate court may reverse or modify a judgment only if
it can be determined “from the record” that the error substantially affected a party’s right. See Purdy, 

;
Shoup 

.
        In my view, because it is undisputed that
ORS 19.415(2) applies to the failure to provide appellant
with the prehearing citation required by ORS 426.090,
appellant must demonstrate that the error—viz., providing
her attorney with the citation rather than her personally—
had the required prejudicial effect under the circumstances
574                                                             State v. T. C.

presented in the case. In her opening brief, appellant’s
only contention that the error was not harmless relied on
generalities:
       “For a person to be prepared to meaningfully participate in their hearing, they must be served a citation with
    notice of the allegations against which they are expected to
    defend themselves, as well as notice of their rights, including their right to use a subpoena, so that they can meaningfully prepare a defense.”
That argument, in my view, is insufficient to carry the burden mandated by ORS 19.415(2). See Shoup, 

(observing that ORS 19.415(2) “protects the trial court judgment from reversal or modification ‘except for’ error substantially affecting a party’s rights, indicating that reversal of a judgment is the exception, not the rule” (internal
quotation marks in original)). That is especially so under
the circumstances of this case where appellant’s attorney
filed a pretrial motion, objected to the state’s request for
a continuance, and reviewed documents prior to the hearing despite appellant not personally receiving the statutorily required prehearing citation. Further, the trial court
engaged with appellant by explaining the required advice of
rights mandated by ORS 426.100 and neither appellant, nor
appellant’s attorney, drew the court’s attention to the lack of
personal service of the citation required by ORS 426.090.2
The majority opinion, in my view, conflates the violation of
ORS 426.090 itself with appellant’s burden to demonstrate
that the violation of ORS 426.090 had the required prejudicial effect. I understand those to be separate inquiries. See
Ryan v. Palmateer, 

, 

, cert
den, 

 (2005) (discussing why “structural error”
is not a useful analytical tool and adhering to the harmless
error standard articulated in Davis); State v. Barone, 

, 

 (1999), cert den, 

 (2000)
     2
       Indeed, the majority opinion’s interpretation of the statutory requirement
for personal prehearing notice as an unwaivable right that cannot be remedied
by, for example, an appellant requesting additional time to prepare for the hearing is inconsistent with how we have treated the similar notice requirement in
criminal proceedings. See, e.g., State v. Antoine, 

, 

,
rev den, 

 (2015) (explaining that, “although defendant lacked adequate
notice of the charges against him, his lack of notice was something that he should
have attempted to cure by moving to require the state to make its election before
trial”).
Cite as 

 (2023)                              575

(explaining that the court “has not adopted the doctrine
of ‘structural’ or ‘systemic’ error in analyzing questions of
Oregon law”).
         Finally, it is worth noting that, like the observations in the majority opinion, I agree that ORS 426.090
confers an important prehearing right to receive in-person
written notice. Whether deprivation of that right, however,
reaches the threshold set in ORS 19.415(2) of “substantially
affecting” appellant’s rights will depend on the circumstances of each case. In cases where the citation required
by ORS 426.090 was not provided at all, demonstrating that
the error was prejudicial could arise from, for example, the
lack of notice preventing the person from hiring an attorney
or having legal counsel immediately appointed, preparing a
specific response to the reasons for the hearing or advocating for a particular outcome, or misapprehending the right
to subpoena witnesses. In this case, however, where that
written notice was given to appellant’s attorney—instead
of personally to appellant—the burden of demonstrating
that appellant not personally receiving the citation detrimentally influenced her rights is more nuanced, especially
where appellant’s counsel filed a pretrial motion, objected
to the state’s request for a continuance, and reviewed documents prior to the hearing.
        In short, after evaluating the arguments made by
appellant in her opening brief to demonstrate reversible
error under ORS 19.415(2) and the circumstances of this
case, I would conclude that she has not demonstrated the
required prejudicial effect.
        Accordingly, I respectfully dissent.
        Kamins, J., and Pagán, J., join in this dissent.
        PAGÁN, J., dissenting.
         Appellant was in jail at the time of her civil commitment hearing. When the precommitment investigator
interviewed appellant, she “was naked, lying on her cell
floor, with a blanket on her legs. Her cell was flooded and
the blanket appeared wet.” Appellant yelled profanities
at the investigator during the entire interview. Appellant
576                                                          State v. T. C.

needed help and treatment, which was not likely to occur
in the maximum-security unit at the Marion County Jail.
See Addington v. Texas, 

, 

, 

 (1979) (“In a civil commitment state power is
not exercised in a punitive sense.”).
         Relying on the investigator’s report, the trial
court issued a citation for a civil commitment hearing and
appointed an attorney to represent appellant.1 On the same
day, focusing on appellant’s right to due process, appellant’s
attorney filed a motion requesting notice of interviews with
appellant and objecting to the use of unadvised statements
made to any precommitment investigator. Appellant’s attorney also objected to the state’s motion for a continuance of
the civil commitment hearing.
         Now, on appeal, based on the same due process
considerations, the majority opinion reverses appellant’s
judgment of civil commitment because there is no indication in the record that the citation was personally served
on appellant as required by the penultimate sentence of
ORS 426.090. The majority opinion requires strict compliance with that requirement, even though appellant was in
custody at the time, did not preserve the error below, and
the error caused no discernible harm. In deciding whether to
exercise our discretion to reverse, I would adopt an approach
that is consistent with how we typically assess the impact of
unpreserved errors in civil and criminal cases.
         In determining whether appellant had a “reasonable opportunity to prepare” for the hearing, In re Gault,

, 

, 

 (1967), we
should consider appellant’s circumstances and condition
at the time her civil commitment proceeding began. In
September 2021, appellant was arrested and charged with
harassment. The arrest occurred after police responded
to a call from appellant’s adult son who stated that appellant was naked and attempting to break into his bedroom. After a brief struggle with police officers, appellant
    1
      The state suggests that the appointed attorney in the civil commitment
proceeding also represented appellant in her criminal case. The record does not
support that claim. Instead, the record shows that two different attorneys were
involved.
Cite as 

 (2023)                               577

was detained and lodged at Marion County Jail. At her
arraignment, appellant exhibited strange behavior, such
as claiming that she was standing behind herself, “intermittently refusing to speak, stating that she is God, and
shouting at the Judge when her charging document was
read aloud.” Appellant’s defense attorney referred appellant for an evaluation due to the attorney’s concerns about
appellant’s ability to aid and assist in her defense. When
interviewed by a psychologist, appellant did not appear to
understand that she was in jail.
          The precommitment investigator, who conducted
her first interview of appellant shortly before the citation
was issued, described appellant’s behavior as “[i]rritable,
intrusive, impulsive, distractible, with poor eye contact,
and largely uncooperative. [Appellant’s speech] was hyperverbal, increased rate, loud volume and profane. She had
disorganized speech and illogical thinking. She presented
as delusional and psychotic.” According to the investigator,
appellant “remained lying on the floor the entire interview
and yelled and screamed for the duration of the interview
yelling profanities at this investigator.” Under those circumstances, it is not clear that personally serving the citation on appellant would have accomplished much towards
providing her with a fair process. Nevertheless, appellant’s
court-appointed attorney prepared for the hearing, including by objecting to the state’s request for a continuance, by
filing a pretrial motion regarding precommitment investigations, and by reviewing documents. Thus, even without personal service of the citation, appellant’s due process rights
were protected, and she was afforded—through the work of
her attorney—a reasonable opportunity to prepare for the
hearing.
          Relying on a policy of “strict adherence” to the involuntary commitment procedures contained in ORS chapter
426, the majority opinion reverses the judgment of civil commitment. 327 Or App at 564. Certainly, trial courts must
strictly comply with those procedures, including the requirement of personal service of the citation. See State v. O’Neill,

, 

 (1976) (reviewing de novo whether
the appellant should have been involuntarily committed).
578                                                  State v. T. C.

However, it is less clear that we should automatically reverse
whenever there is a failure to strictly comply with those procedures, especially when the error was not preserved.
         In State v. Waters, 

, 

, rev den, 

 (2000), cert den sub nom Waters v.
Oregon, 

, 

, 

 (2001),
we declined to exercise our discretion to reverse for failure
to comply with ORS 426.120(1)(c), which requires examiner’s reports to be written under oath. As we explained,
       “One of the primary purposes of the preservation
   requirement is to permit lower courts the opportunity to
   correct their own errors. Had appellant brought this error
   to the trial court’s attention, the error could easily have
   been avoided. As to the gravity of the error, appellant does
   not contend that the error was anything other than a technical one; he does not call into question the substance of the
   examiners’ reports, and he does not assert that the error
   affected the outcome of the case in any way. Under the circumstances, we do not exercise our discretion to correct the
   trial court’s error in receiving the examiner’s signed but
   unsworn reports.”
Id. at 650; see also State v. Maxwell, 

,

 (1999), rev den, 

 (2000) (declining to
reverse a civil commitment order because the error was not
preserved).
         A similar analysis should apply here. If appellant
or her attorney were concerned about the failure to effect
personal service of the citation, then they could have raised
that concern at the beginning of the hearing, and the error
could have been corrected. But they did not do so. Instead, at
the beginning of the hearing, appellant’s attorney pointed
out that she was missing some pages from the reports associated with appellant’s arrest. Shortly thereafter, when
advising appellant of her rights, the trial court stated that
the courtroom could be cleared if there was anything appellant wanted to discuss with her attorney. During those
preliminary stages of the hearing, neither appellant nor
her attorney objected to the failure to personally serve the
citation. Their lack of concern weighs against exercising
our discretion to reverse based on that error. See State v.
Cite as 

 (2023)                             579

Inman, 

, 

 (2015), rev den,

 (2016) (“[T]he ease with which any error could
have been avoided or corrected should be a significant factor
in an appellate court’s decision whether to exercise its discretion to correct a plain, but unpreserved, error.”). Indeed,
it could be argued that our adherence to a strict compliance
approach for such technical failures creates an incentive for
litigants to avoid alerting the trial court to any such errors,
lest they be easily corrected.
         In State v. K. R. B., 

, 

 (2021), a case in which the citation was not served until
the beginning of the hearing, we did not exercise our discretion to correct the error, if any, because there was no
indication that “the delay in service of the citation caused
appellant or counsel not to be informed of the bases for the
commitment or not to have adequate time or information to
prepare for the hearing.” 

 Furthermore, there was nothing in the record to suggest that “service of the citation at
the commencement of the hearing caused appellant not to
receive the benefits of a full and fair hearing.” 

          Here, unlike in K. R. B., there is no evidence
that the citation was ever personally served on appellant.
Nevertheless, if the purpose of doing so is to make sure
that the appellant has a reasonable opportunity to prepare for the hearing, then it is not clear why personal service of the citation at the beginning of the hearing makes
a difference. Obviously, it does not allow a person time to
prepare for the hearing, nor does it strictly comply with
ORS 426.090, which requires personal service “prior to the
hearing.” Indeed, here, appellant may have been better prepared for her hearing than the person alleged to be mentally
ill in K. R. B., because appellant’s attorney was actively taking steps before the hearing to protect appellant’s due process rights, including by objecting to a request for a continuance, by reviewing documents, by taking note of what she
was missing, and by filing a prehearing motion regarding
precommitment investigations.
        Put another way, even though there was no personal service of the citation, appellant “received a functionally equivalent protection in a different form.” 

                                               State v. T. C.

at 563. The steps taken by her attorney before the hearing
show that the attorney was acting to protect appellant’s due
process rights. Furthermore, at the beginning of the hearing, which appellant attended by videoconference, the trial
court explained the nature of the proceeding, advised appellant of her rights, and explained the possible results of the
hearing as required by ORS 426.100(1). Thus, even though
she did not personally receive the citation, appellant was
“otherwise adequately aware” of her rights. State v. Ritzman,

, 

 (2004).
         Regarding appellant’s right to subpoena witnesses,
at one point during the hearing, appellant mentioned the
names of several sheriff’s deputies or law enforcement officers. Once appellant mentioned their names, the trial court
immediately went off the record to provide appellant’s
appointed attorney the opportunity to discuss the issue of
witnesses with her. After a recess, the attorney indicated
that more time with appellant would not assist her. When
the hearing continued, appellant did not call witnesses,
but she did provide her own testimony. On that record, we
have no basis from which to reasonably infer that appellant
would have subpoenaed witnesses if she had been personally served with the citation prior to the hearing. Cf. State v.
M. L. R., 

, 

 (2013) (determining that the failure to advise the appellant of her right
to subpoena witnesses was not harmless because we could
not conclude that she received the information from another
source, and the error may have impacted the outcome of the
hearing because the testimony of the appellant’s husband
was not helpful, and her children did not testify).
          I do not mean to devalue or undermine the importance of the procedural safeguards that the legislature has
put in place to protect persons alleged to be mentally ill. The
trial court’s failure to effect personal service of the citation,
as required by ORS 426.080 and ORS 426.090, was error,
but, at the same time, we must decide whether to exercise
our discretion to consider and correct an unpreserved error.
Ailes v. Portland Meadows, Inc., 

, 

 (1991). In doing so, we should not ignore the practical
effect of the error. Other than pointing to the seriousness of
Cite as 

 (2023)                                                   581

civil commitment hearings, appellant identifies no discernible harm that she suffered as a result of the failure to serve
the citation.2 At her civil commitment hearing, appellant’s
son testified that “she is not in the right state of mind at all.
Like her mind is completely broken right now. She was tearing apart my apartment last time she was here.” By entering a judgment committing appellant to the Oregon Health
Authority for a period not to exceed 180 days, appellant was
certainly more like to receive the care and treatment she
needed than in the Marion County Jail.
          The majority points to the “long line of cases deeming the failure to provide the prehearing notice, in the form
of the citation required by ORS 426.090, reversible error.”
327 Or App at 565. However, in many of those cases, the
state conceded that the judgment of civil commitment
should be reversed. See State v. M. D. M. G., 

, 

 (2021) (“The state concedes that the
error constitutes plain error and that this court should
reverse.”); State v. J. M.-G., 

, 

 (2021) (same); State v. J. A. N., 

, 

 (2021) (same); State v. R. E. F., 

,

 (2019) (same). In others, no citation was issued.
See J. A. N., 

 (“In this case, the error is
even more glaring, given that the citation never issued at
all.”); State v. C. T., 

, 

 (2021)
(“As the state concedes, we have found reversible plain error
in situations where no citation was issued.”). While a court
should respect when the parties before it agree on a particular disposition, we should be cautious about allowing
those instances to become the driving force behind the arc
of our jurisprudence. If the driving force is, rather, the call
to ensure that litigants receive due process, we should be
encouraging the parties and the trial courts to inquire
about the practical effects of any procedural shortcomings

    2
      Generally, appellants are not permitted to file reply briefs in civil commitment cases, but appellant could have sought permission to file a reply brief to
respond to the state’s harmless error argument. ORAP 5.70(3)(a)(iii). As Judge
Powers observes, ORS 19.415(2) requires that an error affect the proceeding, a
component that is also fundamental to our plain-error review. 327 Or App at 572-
73 (Powers, J., dissenting). See, e.g., State v. Horton, 

, 

 (2023) (In determining whether to exercise discretion, “[t]he likelihood that
the error affected the outcome goes to its ‘gravity’ and to ‘the ends of justice.’ ”).
582                                              State v. T. C.

before proceeding. The majority’s approach does not encourage such an inquiry.
         Here, the citation was issued, and the state does not
concede that we should exercise our discretion to reverse. In
that circumstance, it behooves us to review the record and
reflect upon the practical effect of the unpreserved error. A
focus on strict compliance with the personal service requirement risks short-circuiting that analysis. As we explained
in State v. S. R.-N., 

, 

 (2022),
when discussing the similar, although not identical, procedural safeguards set forth in ORS chapter 427, although the
procedures “aim to ensure due process, it is not necessarily
true that the failure to satisfy those procedures denies due
process; that is, a constitutionally significant deprivation of
due process requires an assessment of the risk that a procedural failure resulted in the commitment.” (Emphases in
original.)
         Although the concerns underlying proper service
speak to procedural due process, the manifestation of due
process is, ultimately, a proceeding that can be said to represent the parties’ best attempts at presenting their evidence
and arguments to the adjudicator. In this case, there is no
indication that the decision to commit the appellant to the
Oregon Health Authority for a period of time was affected
by the failure to personally serve the citation. Instead, after
considering the evidence, which included testimony from a
licensed psychologist, a certified mental health investigator,
and an appointed examiner, as well as hearing testimony
from appellant and her son, and after considering the arguments of counsel, the trial court concluded that appellant
met the statutory criteria for a mental illness and that she
was in need of treatment. ORS 426.130(1)(a)(C).
        Indeed, the trial court came close to deciding that
the state failed to meet its burden of showing that a civil
commitment was necessary. The trial court did not find,
by clear and convincing evidence, that appellant posed a
danger to herself or that she was unable to meet her basic
needs. ORS 426.005(1)(f). However, the trial court did find,
by clear and convincing evidence, that appellant suffered
from schizophrenia and that she posed a danger to others.
Cite as 

 (2023)                            583

 Based on this record, there is no reason to believe that
appellant was denied the opportunity to fully prepare for
her civil commitment hearing as a result of the failure to
effect personal service of the citation on her while she was
in custody in the Marion County Jail.
         A review for plain error should be the exception, not
the rule. State v. Taylor, 

, 

(2018). Here, focusing on appellant’s circumstances, condition, and the prehearing steps taken by her attorney to protect her due process rights, and because the failure to personally serve the citation was an unpreserved error that did
not result in any discernible harm to appellant, we should
not exercise our discretion to reverse the judgment of civil
commitment.
        I respectfully dissent.
        Kamins, J., joins in this dissent.