No. 151 February 28, 2024 325
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of A. M.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
A. M.,
Appellant.
Clackamas County Circuit Court
22CC02899; A178745
Thomas J. Rastetter, Judge.
Submitted May 24, 2023.
Joseph R. DeBin and Multnomah Defenders, Inc. filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
SHORR, P. J.
Affirmed.
326 State v. A. M.
SHORR, P. J.
Appellant appeals from a judgment committing her
to the Oregon Health Authority for 180 days. She raises two
assignments of error. In her first, she contends that the trial
court erred in finding that she has a mental disorder that
makes her a danger to others. In her second, she contends
that the trial court plainly erred in proceeding with a hearing without evidence of the filing of a return of service of
the civil-commitment citation. She contends that the court’s
failure to follow the statutory pre-commitment procedures
denied her due process under the Fourteenth Amendment
to the United States Constitution.1 As we explain below, we
reject both assignments of error. As a result, we affirm.
In her argument in support of her first assignment
of error, appellant does not contest that she has a mental disorder. Rather, she contends that there was not clear and convincing evidence under ORS 426.130 that, because of that disorder, she was a danger to others under ORS 426.005(1)(f)(A).
Having reviewed the record, we reject that argument. There
is clear and convincing evidence that appellant suffers from
a mix of mania and psychosis that results in a delusion that
there is a conspiracy of government actors who are pursuing, harassing, and working to detain her. There is evidence
of a series of escalating behavior relating to that delusion,
which ranged from appellant’s persistent threats to kill FBI
agents to threatening to kick, and then ultimately kicking
at, county sheriff’s deputies. She also “barged” into an attorney’s office at night to try to look up email to investigate the
conspiracy. The episodes culminated in overt violence when
she bit an EMT worker while claiming that she was going to
hurt and kill FBI agents. We conclude that there was clear
and convincing evidence to support the trial court’s judgment
of commitment. See State v. D. L. W., 244 Or App 401, 405,
260 P3d 691 (2011) (stating that “if a mentally ill person has
threatened others and has also carried out an overt violent
act in the past against another person, those facts generally
constitute clear and convincing evidence that the person is
1
The Due Process Clause of the Fourteenth Amendment provides that no
“State [shall] deprive any person of life, liberty, or property, without due process
of law.” US Const, Amend XIV, § 1.
Nonprecedential Memo Op: 331 Or App 325 (2024) 327
a danger to others”). As a result, we reject appellant’s first
assignment of error.
In her second assignment of error, appellant contends
that the trial court plainly erred in proceeding with a hearing in the absence of proof of service of the civil-commitment
citation. She did not object in the trial court to proceeding
with the hearing. She contends that the failure to follow
pre-commitment statutory procedures, ORS 426.090 and
ORS 426.080, violated her due process rights. ORS 426.090
requires that a judge issue a citation to the person alleged to
have a mental illness. The citation, which alerts the person
to their rights and the time and place of the hearing, must
be served “prior to the hearing.” ORS 426.090. A separate
statute, ORS 426.080, provides that the person serving the
citation shall return the citation “showing the time, place and
manner of such service” and file it with the court. There is
no dispute that there was no separate return of service filed.
However, as we will explain, we cannot conclude on this record
that there was plain error such that it is clear that appellant’s
due process rights were violated. It is possible to infer from
this record that appellant was served with the citation, and
the mistake was solely the failure to file the return of service
with the court.
The face of the citation, signed and dated by the
court on May 16, states that “[t]his Notice and Citation is
issued and served upon you pursuant to the Order of the
above Court.” The hearing did not proceed until the next day,
May 17, when appellant appeared with her counsel and contested the civil commitment in a disputed hearing. Based on
the trial court record, we cannot say that the court plainly
erred in proceeding with the hearing or that it is clear that
appellant’s due process rights were violated. This case is
strikingly similar to State v. P. B. S., 324 Or App 706,
527
P3d 815 (2023). In that case, there also was no evidence of
the filing of the return of service of the citation, but the judgment expressly referred to “the citation issued to and served
upon appellant.”
Id. at 709 (emphasis added). We rejected
the appellant’s due process argument and concluded:
“There are competing inferences in the record as to whether
appellant was served with the citation that the court issued:
328 State v. A. M.
the lack of a return of service in the court file, on the one
hand, and the judgment stating that appellant was served
with the citation, on the other. An error is not ‘plain’ if we
have to choose between competing inferences in the record.
Because we are limited to plain-error review, and because
the error is not ‘plain,’ we affirm.”
Id. at 711 (internal citation omitted).2 For the same reasons expressed in P. B. S., we also reject appellant’s second
assignment of error.3
Affirmed.
2
To the extent that appellant is not just raising a due process argument,
but also contends as a statutory matter that it was plain error to proceed with a
hearing without evidence of a return of service of the citation as required by ORS
426.080, we reject that argument too. See P. B. S., 324 Or App at 711 n 1 (stating
that “[i]t is not obvious and is reasonably in dispute whether the process server’s
failure to comply with ORS 426.080 means that the court could not proceed with
a civil commitment hearing, regardless of actual service”).
3
Our decisions here and in P. B. S. are consistent with State v. T. C., 327
Or App 558,
536 P3d 591 (2023). In T. C., we expressly concluded that appellant
“had not been served with the citation required by ORS 426.090.”
Id. at 571. As
discussed above, the records in this case and in P. B. S. present competing inferences regarding service.
