State v. M. T.

No. 580               August 21, 2024                   453

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   In the Matter of M. T.,
          a Person Alleged to Have Mental Illness.
                   STATE OF OREGON,
                        Respondent,
                             v.
                           M. T.,
                         Appellant.
                 Lane County Circuit Court
                   23CC01202; A180955

  Beatrice N. Grace, Judge.
  Argued and submitted March 20, 2024.
   Christopher J. O’Connor argued the cause for appellant.
Also on the briefs was Multnomah Defenders, Inc.
   Ryan Kahn, Assistant Attorney General, argued the
cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
  AOYAGI, P. J.
  Affirmed.
454   State v. M. T.
Cite as 

 (2024)                                455

        AOYAGI, P. J.
         Appellant was committed to the custody of the
Oregon Health Authority for a period up to 180 days, based
on his being unable to meet his basic needs and a danger
to others due to a mental disorder. ORS 426.130(1); ORS
426.005(1)(f)(A), (B). On appeal, he raises a single assignment of error, relating to ORS 426.100(3), which recognizes a
person’s right to be represented in a civil commitment hearing by “suitable legal counsel possessing skills and experience commensurate with the nature of the allegations and
complexity of the case.” Appellant, who was represented by
court-appointed counsel, argues that the trial court “erred
by not assigning adequate counsel and erred by not stopping the hearing for the appointment of new counsel when
it became apparent that the attorney did not have the requisite skills or experience to serve as suitable legal counsel.”
Appellant’s argument is based entirely on ORS 426.100(3);
he has disavowed any claim of constitutionally inadequate
assistance of counsel. For the reasons described below, we
affirm.
         An allegedly mentally ill person has the right to
be represented by counsel at a civil commitment hearing.
ORS 426.100(2). The right to counsel includes both the right
to obtain suitable legal counsel for oneself and the right to
have suitable legal counsel appointed by the court in the
event of indigency:
       “When provided under [ORS 426.100(2)], a person
   alleged to have a mental illness has the following rights
   relating to representation by or appointment of counsel:
       “(a) The right to obtain suitable legal counsel possessing skills and experience commensurate with the nature
   of the allegations and complexity of the case during the
   proceedings.
      “(b) If the person is determined to be financially eligible for appointed counsel at state expense, the court will
   appoint legal counsel to represent the person. If counsel is
   appointed at state expense, payment of expenses and compensation relating to legal counsel shall be made as provided under ORS 426.250.
456                                                State v. M. T.

       “(c) If the person alleged to have a mental illness does
   not request legal counsel, the legal guardian, relative or
   friend may request the assistance of suitable legal counsel
   on behalf of the person.
      “(d) If no request for legal counsel is made, the court
   shall appoint suitable legal counsel unless counsel is
   expressly, knowingly and intelligently refused by the
   person.
      “(e) If the person is being involuntarily detained before
   a hearing on the issue of commitment, the right under
   paragraph (a) of this subsection to contact an attorney or
   under paragraph (b) of this subsection to have an attorney
   appointed may be exercised as soon as reasonably possible.
       “(f) In all cases suitable legal counsel shall be present
   at the hearing and may be present at examination and may
   examine all witnesses offering testimony, and otherwise
   represent the person.”
ORS 426.100(3).
        In this case, appellant argues that his court-appointed counsel was not “suitable” under ORS 426.100(3)
and that the trial court should have stopped the hearing
based on counsel’s performance and appointed new counsel.
The state responds that appellant did not raise that issue
below, that any error under ORS 426.100(3) is not “plain,”
and that appellant’s argument therefore fails.
         Before addressing the parties’ arguments, we pause
to emphasize the nature of appellant’s claim of error. We
found the opening brief to be ambiguous as to whether
appellant was claiming inadequate assistance of counsel,
because appellant uses “suitable” and “adequate” interchangeably and relies largely on counsel’s performance to
argue that counsel was not suitable. That led us to request
supplemental briefing from the parties. In his supplemental brief, appellant clarifies that he is not making an inadequate assistance claim. He explains that we “should not
consider this to be a case regarding inadequate assistance
of counsel” and that the issue presented on appeal is limited to whether the trial court failed to appoint “suitable”
counsel for appellant. We appreciate the clarification and
proceed with that understanding.
Cite as 

 (2024)                               457

          Having clarified the nature of appellant’s claim of
error, we next consider preservation. “Generally, an issue
not preserved in the trial court will not be considered on
appeal.” State v. Wyatt, 

, 

 (2000).
Preservation is excused in some circumstances, however, as
discussed below. We also always have discretion to review
for “plain” errors. ORAP 5.45(1); see State v. Vanornum, 

, 

 (2013) (“For an error to be plain
error, it must be an error of law, obvious and not reasonably
in dispute, and apparent on the record without requiring
the court to choose among competing inferences.”).
         The state argues that appellant did not alert the
trial court to his counsel’s alleged unsuitability and that we
should therefore treat his claim of error as unpreserved and
review only for plain error. Appellant disagrees. In his opening brief, appellant requested plain-error review, but, in his
supplemental brief, he argues that preservation should be
excused because an allegedly mentally ill person has no
practical ability to challenge counsel’s suitability in the trial
court.
          “Preservation rules are pragmatic as well as prudential.” Peeples v. Lampert, 

, 

 (2008). It is well established that preservation will be
excused in some circumstances, particularly where the
appellant had “no practical ability to raise an issue.” 

 (“In
some circumstances, the preservation requirement gives
way entirely, as when a party has no practical ability to raise
an issue.”). In the juvenile dependency context, in two cases
involving inadequate assistance claims raised by parents
for the first time on appeal, the Supreme Court has excused
preservation on impracticality grounds. As the court succinctly put it in T. L., “As a practical matter, the identification of an inadequate assistance of counsel claim and the
question whether it caused cognizable prejudice to a party
are complex legal issues that remain likely to be detected
and assessed in the first instance only by competent counsel.” Dept. of Human Services v. T. L., 

, 

 (2016); see also State ex rel Juv. Dept. v. Geist, 

, 184 n 9, 

 (1990) (“We recognize the
reality that it is unlikely that any challenge to the adequacy
458                                             State v. M. T.

of appointed trial counsel will have been preserved in the
circuit court. It is neither realistic nor reasonable to expect
that a parent’s trial counsel will have objected at trial that
counsel’s advocacy was inadequate.”).
        For present purposes, given the complicated issues
raised by the parties’ preservation arguments, we decline
to decide whether preservation should be excused in these
circumstances. Instead, we assume without deciding that
preservation is excused, because it ultimately does not affect
our disposition.
         Turning to the merits, ORS 426.100(3) recognizes
an allegedly mentally ill person’s “right to obtain suitable
legal counsel” and related right, if financially qualified, to
have counsel appointed by the court and paid for by the
state. Suitable counsel is described in ORS 426.100(3)(a)
as “suitable legal counsel possessing skills and experience
commensurate with the nature of the allegations and complexity of the case.”
         Neither party has identified any existing case law
regarding suitability of counsel, in the civil commitment
context or otherwise, but some does exist. First, the same
suitability standard applies to appointed counsel in post-conviction cases. ORS 138.590(4) requires the circuit court
to “appoint suitable counsel” for a financially eligible person seeking post-conviction relief. In that context, we have
referred to the suitability requirement in reviewing the
denial of motions for substitute counsel. For example, in
Lopez v. Cain, 

, 

 (2024),
we held that the trial court had erred in denying the petitioner’s motion for substitute counsel, and we reversed and
remanded for appointment of substitute counsel, where
counsel “advocated against his client’s position [on a Church
motion], assuming the role of opposing counsel, and therefore
was not ‘suitable’ counsel for purposes of the post-conviction
trial.”
         Second, the legislature has long required administrative standards for appointed counsel. From 1985 to
2001, the State Court Administrator was required to “establish standards of eligibility for … [a]ppointed counsel
Cite as 

 (2024)                                               459

compensated at public expense to represent indigents in
the courts of this state or municipal court.” Former ORS
151.430(3)(a) (1985), amended by Or Laws 1987, ch 803,
§ 10, Or Laws 1995, ch 677, § 2, Or Laws 2021, ch 962,
§ 109, repealed by Or Laws 2001, ch 962, § 115. From 2001
to 2023, the Public Defense Services Commission (PDSC)
was required to “[a]dopt policies, procedures, standards
and guidelines regarding … [p]rofessional qualifications
for counsel appointed to represent public defense clients.”
ORS 151.216(1)(j)(F) (2021); see Or Laws 2001, ch 962, §§ 3,
106 (original enactment). The most recent PDSC guidelines are from 2019 and include minimum qualifications
for appointed counsel in civil commitment cases. See Public
Defense Services Commission Qualification Standards for
Court-Appointed Counsel to Represent Financially Eligible
Persons at State Expense, 5 (revised Dec 19, 2019), available at https://www.oregon.gov/opdc/provider/StandardsBP/
AttorneyQualification.docx (accessed Aug 5, 2024). The
Oregon Public Defense Commission (OPDC) replaced the
PDSC on January 1, 2024, see Or Laws 2023, ch 281, § 1,
and does not appear to have created new qualification standards at this time.1
         We addressed the suitability of counsel for appointment in a death-penalty case by reference to the administrative standards in State v. Maletta, 

, 

 (1989), rev den, 

 (1990). In that case,
the trial court dismissed three aggravated-murder charges
because the defendant “was not represented at his preliminary hearing by an attorney qualified under the State
Court Administrator’s standards to represent indigent
defendants in capital or other murder cases.” Id. at 645. We
reversed, agreeing with the state “that the dismissal was
not proper, because defendant was not prejudiced by the
appointment or the representation.” Id. In reaching that conclusion, we explained that ORS 135.045 (1987) requires the
    1
      The legislature amended ORS 151.216 in 2023, with different amendments
to take effect on different dates through mid-2027. As relevant here, the current ORS 151.216 requires OPDC to “[a]dopt policies, procedures, standards and
guidelines regarding … [t]he appointment of counsel,” ORS 151.216(1)(h)(B),
and in doing so to adhere to the principle that “[t]he ability, training and experience of appointed counsel must match the nature and complexity of the case to
which the counsel is appointed,” ORS 151.216(2)(c).
460                                                             State v. M. T.

appointment of “suitable” counsel;2 that former ORS 151.480
(1987), repealed by Or Laws 2001, ch 962, § 115, requires
that appointed counsel meet “the standards of eligibility”
created by the State Court Administrator pursuant to former ORS 151.430(3)(a) (1987);3 and that the district court
violated former ORS 151.480 (1987) by appointing an attorney who did not meet those standards. Maletta, 

; see also 

 at 645 n 1 (quoting standards). Dismissal
was not “an appropriate remedy for the statutory violation,”
however, given that the defendant had not been prejudiced.

.
         We disagreed with the trial court that prejudice
should be “presumed” and instead looked to the facts of the
case. 

. The defendant was not claiming inadequate
assistance of counsel and had “not shown any constitutional
violation.” 

. Regarding the latter, we noted that
“the test for adequate assistance of counsel is necessarily
general and subjective, and the focus must be on actual performance, not general competence.” 

 “ ‘Lawyers, like other
professionals, are not all equally skillful, but the least of
us can sometimes rise to a challenge and the best of us can
blunder. Thus it is the performance, not the identity, of the
defense lawyer which is subject to constitutional scrutiny.’ ”

 (quoting Krummacher v. Gierloff, 

, 

 (1981)). In other words, the “adequacy of counsel is measured by performance, not credentials.” Id. at 650. Because
the defendant had not been prejudiced, we concluded that
the trial court had erred in dismissing the charges to remedy the violation of former ORS 151.480 (1987) and reversed
the dismissal ruling. Id.
        Returning to the present case, we conclude that
appellant has not made out a viable claim for reversal of his
    2
      ORS 135.045 (1987) has been amended over time and no longer uses the
term “suitable.” Compare ORS 135.045 (1987), amended by Or Laws 1989, ch 171,
§ 16; Or Laws 1989, ch 1053, § 1a; Or Laws 1991, ch 790, § 11; Or Laws 2001,
ch 472, § 1; Or Laws 2001, ch 962, § 24 (providing for the appointment of “suitable
counsel”), with ORS 135.045 (2024) (providing for the appointment of “counsel”).
    3
      Under former ORS 151.480 (1987), “[u]nless the trial court appoints a public
defender or an attorney under a contract with the state, the court must select
an attorney who ‘satisfies the standards of eligibility established under [former]
ORS 151.430(3)(a).’ ” Maletta, 

 (quoting former ORS 151.480(1)
(1987)).
Cite as 

 (2024)                             461

commitment. The trial court was required to appoint suitable counsel to represent appellant, i.e., counsel “possessing
skills and experience commensurate with the nature of the
allegations and complexity of the case.” ORS 426.100(3)(a).
Appellant argues that the court appointed unsuitable counsel in violation of ORS 426.100(3). However, the record is
silent as to counsel’s skills and experience at the time of
appointment. Without any information regarding counsel’s
qualifications, we cannot conclude on this record that the
court erred in making the appointment.
         Furthermore, even if appellant could establish that
it was error to appoint counsel, because counsel lacked skills
and experience commensurate with the nature of the allegations and complexity of the case, appellant would have to
show that the error was prejudicial. As in Maletta, we would
not reverse a civil commitment based on the appointment of
counsel who was unsuitable on paper, in terms of skills and
experience, absent proof of resulting prejudice to the appellant in the actual proceeding. Here, appellant argues that
counsel underperformed, but he expressly disclaims constitutionally inadequate assistance of counsel. It is unclear, at
best, that the existing record would be sufficient to establish
prejudice flowing from counsel’s appointment.
         That leaves appellant’s argument that the trial
court should have stopped the commitment hearing and
appointed substitute counsel “when it became apparent that
the attorney did not have the requisite skills or experience
to serve as suitable legal counsel.” We are unpersuaded. It
is unclear under what circumstances, if any, a trial court
would be obligated to sua sponte substitute counsel in a
civil commitment proceeding based on counsel becoming
“unsuitable” in the course of the proceeding. In the post-conviction context, we have described counsel who takes an
adversarial position to the client during the proceeding as
“unsuitable.” Lopez, 

. By analogy, it is possible that a court would be required to substitute counsel in
a civil commitment proceeding, perhaps even sua sponte, if
counsel took an adversarial position to the client, revealed
a conflict of interest, or otherwise created or revealed a circumstance that made it untenable for counsel to continue
462                                                              State v. M. T.

representing the client. But nothing of that nature occurred
in this case. Alleged poor performance short of constitutional inadequacy does not require sua sponte substitution
of counsel as unsuitable.
         Accordingly, we reject appellant’s argument that
the trial court appointed unsuitable counsel in violation of
ORS 426.100(3). We also reject his argument that the court
should have stopped the hearing to appoint substitute counsel based on counsel’s allegedly poor—but not constitutionally deficient—performance. In doing so, we recognize the
inherent difficulties of challenging appointed counsel’s qualifications or performance for the first time on appeal, when
the record will rarely be developed in a way suited to the
task. We also recognize that civil commitments are unique
in that, by the time of appeal, the commitment is inevitably over, and it is at best unclear whether the commitment
hearing could be held again with different counsel. Finally,
we recognize that it remains an open question in Oregon
whether (and, if so, how) an allegedly mentally ill person
may raise a claim of inadequate assistance of counsel in a
civil commitment proceeding.4 All of those realities lead to
a difficult situation for appellate counsel. Nonetheless, we
must apply the law as it exists, based on the arguments that
have been made, and in this case that leads us to conclude
that the judgment of commitment should be affirmed.
           Affirmed.


    4
      In the termination-of-parental-rights (TPR) context, the Supreme Court
has held that a parent’s statutory right to counsel implicitly includes the right to
adequate counsel, Geist, 

, and that such right “would ‘prove illusory’
without a procedure to vindicate” it. T. L., 

-86 (quoting Geist, 

). However, in the post-conviction context, we have refused to consider
inadequate assistance claims, distinguishing Geist based on the “fundamental
differences between the nature of [TPR] and post-conviction proceedings.” Miller
v. Baldwin, 

, 

 (2001); see also, e.g., Stokes v.
Cain, 

, 

 (2020), rev den, 

 (2021) (a petitioner’s claim “that his post-conviction trial lawyer performed ineffectively …
is not a cognizable basis for reversing or setting aside the post-conviction court’s
decision”). Shortly after the Miller decision, this court, sitting en banc, split 5-5
on whether to consider an inadequate assistance claim in a civil commitment
proceeding, as relevant to allowing a late appeal. State v. S. G. L., 

, 

 (2001). We have not revisited that issue since S. G. L. and do not
do so in this case, because appellant is not claiming inadequate assistance.