State v. A. M.

320                   October 2, 2024               No. 695

         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
                  23CC03225; A181716

  Susie L. Norby, Judge.
   On respondent’s petition for reconsideration filed August
14, 2024. Opinion filed June 26, 2024. 

, 

 (2024).
  Greg Rios and Robert A. Koch, Assistant Attorneys
General, for petition.
  Before Aoyagi, Presiding Judge, Lagesen, Chief Judge,
and Kistler, Senior Judge.
  KISTLER, S. J.
  Reconsideration allowed; opinion adhered to.
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 (2024)                                             321

           KISTLER, S. J.
        The state has petitioned for reconsideration of our
decision in State v. A. M., 

, 

(2024), which remanded this case for an evidentiary hearing. The state reasons that the intended scope of the evidentiary hearing on remand can be understood in one of
two ways and asks for clarification as to what we intended.
We allow the state’s petition for reconsideration and, for the
reasons explained below, adhere to our original opinion.
         The trial court civilly committed appellant after
holding a remote rather than an in-person hearing. In doing
so, the court followed a Presiding Judge order that required
that all civil commitment hearings in Clackamas County
be held remotely, regardless of whether there was a particular need for doing so. The primary question that appellant has raised on appeal is whether due process requires
an in-person civil commitment hearing in the absence of
a particularized reason for proceeding remotely.1 Under
Mathews v. Eldridge, 

, 

, 

 (1976), the answer to that question turns on three factors: the private interest at stake, the degree to which an
in-person hearing would result in a more accurate determination, and the burden on the government of providing an
in-person hearing.
        In our original opinion, we explained that the
private interest affected by a civil commitment hearing—
involuntary hospitalization for up to 180 days—is substantial, while the burden on the government of providing an
in-person hearing is “minimal at most.”2 See A. M., 

. That left the second factor: the probable value that an in-person hearing would add to reaching
an accurate decision. Neither party offered any evidence on

    1
       As we noted in our original opinion, we do not understand appellant to be
arguing that due process always requires in-person civil commitment hearings
or that witnesses must always appear in person at those hearings. Rather, appellant’s due process argument, as we understand it, turns on the Presiding Judge’s
decision to automatically require remote hearings even when there is no particularized need that would justify proceeding remotely.
    2
       Given the Presiding Judge’s order, the state has not relied on a particularized need, such as the COVID-19 pandemic, to justify holding remote civil
commitment hearings.
322                                             State v. A. M.

that issue at trial, and all they could do on appeal was to
advance competing arguments unsupported by any record
evidence. Not surprisingly, the state argued that the probable value that an in-person hearing would add to reaching
an accurate decision was minimal while appellant argued
otherwise.
         Faced with those arguments, we remanded the case
to the circuit court for an evidentiary hearing on the issues
that the second Mathews factor poses. 

. In its
petition for reconsideration, the state reasons that our opinion can and should be read for the proposition that, in light
of the current state of videoconference technology, “remote
hearings [can] result in factfinding that is just as accurate
as in-person hearings.” And it proposes that the only factual
issue to be litigated on remand is whether the particular
videoconference technology used in Clackamas County is
“adequate.” In moving for reconsideration, the state asks us
to clarify whether we intended only a limited factual inquiry
on remand.
          We read our opinion differently. We did not seek to
limit the parties’ evidence on remand, beyond requiring that
the evidence be relevant to the second Mathews factor. If
appellant agrees with the state that remote hearings using
the current videoconference technology can result in factfinding that is as accurate as in-person hearings, then the
parties can start from that premise and proceed to subsidiary issues. If, however, appellant takes the position that, in
light of the issues typically at play in civil commitment proceedings, in-person hearings lead to more accurate determinations than remote ones, nothing in our opinion precludes
appellant from offering expert testimony, learned treatises,
or other evidence that bears on that issue in the hearing on
remand.
         Sometimes, courts consider familiar procedures,
such as the ability to call witnesses, in deciding whether
due process requires those procedures in specific types of
hearings. See, e.g., Wolff v. McDonnell, 

, 

, 

 (1974) (considering whether due
process requires that prisoners be able to call witnesses in
prison disciplinary hearings). In those instances, the benefits
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that the requested procedure adds to reaching an accurate
determination are well understood. Videoconferencing technology, by contrast, is relatively new, and we cannot take
judicial notice that civil commitment hearings using that
technology will or will not produce as accurate a determination as in-person hearing. Additionally, as the state notes,
there are always subsidiary issues regarding the benefits
and limits of the specific technology used.
         Our original opinion contemplated that, on remand,
the parties could offer evidence on all the issues raised by
the second Mathews factor. It did not require them to address
only a subset of those issues, nor did it preclude them from
doing so. Rather, it left the parties free, consistently with
the rules of evidence and the trial court’s guidance, to offer
testimony and other evidence that, in their view, bears on
the second Mathews factor. Given that understanding of our
original opinion, we adhere to it.
        Reconsideration allowed; opinion adhered to.