State v. C. E. W.

No. 204               March 18, 2026                  811

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 In the Matter of C. E. W.,
          a Person Alleged to have Mental Illness.
                   STATE OF OREGON,
                        Respondent,
                             v.
                         C. E. W.,
                         Appellant.
               Marion County Circuit Court
                   22CC06444; A186622

  Matthew L. Tracey, Judge pro tempore.
  Argued and submitted January 8, 2026.
   Christopher J. O’Connor argued the cause for appellant.
Also on the brief was Multnomah Defenders, Inc.
   Robert A. Koch, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Dan Rayfield,
Attorney General, and Benjamin Gutman, Interim Deputy
Attorney General.
   Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
  O’CONNOR, J.
  Reversed.
  Powers, J., concurring.
812                                                    State v. C. E. W.

          O’CONNOR, J.
         Appellant appeals from a supplemental judgment
of continued commitment, recommitting him to the custody
of the Oregon Health Authority (OHA) for a period not to
exceed 180 days. We reverse. The trial court plainly erred in
failing to ensure that appellant was advised of his rights at
the recommitment hearing, the error was not harmless, and
we exercise our discretion to correct the error.
         Appellant was initially committed to the custody
of the OHA in October 2022.1 His commitment was continued multiple times after that initial commitment. On
November 20, 2024, appellant was served with a Notice of
Intent to Continue Commitment and did not sign the notice.
The last day of the active recommitment was January 12,
2025. On December 2, 2024, the state filed a Certificate For
Continued Commitment For Mental Illness and requested
that the court “[p]roceed with a hearing as required by ORS
426.307 because the person protests continued commitment
and requests a hearing.” The trial court ordered a hearing
for January 7, 2025, and at the hearing, the trial court read
appellant’s “rights as delineated by ORS 426.100.” At the
conclusion of the hearing, the trial court found that appellant was still mentally ill and in need of treatment and continued the commitment for 180 days.
         Appellant raises a single assignment of error and
asserts that the trial court plainly erred “by holding a
recommitment hearing and recommitting [him] after not
following ORS 426.303 by failing to inform the appellant of
the procedural posture of the case and of his rights under
ORS 426.301.” First, appellant argues that the trial court
failed to follow the proper procedure under ORS 426.303 by
“issu[ing] a citation, ordering that … appellant appear at
a court hearing on January 7, 2025, which was over a month
after the court received the late notification” of appellant’s
protest of recommitment. Second, appellant argues that the
trial court failed to inform appellant of his rights set forth

    1
      The record suggests that appellant might have been committed to OHA
custody previously and that the current commitment began in October 2022. The
precise date that the current commitment began is immaterial to our analysis.
Cite as 

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in ORS 426.301,2 as required by ORS 426.303. We begin
with appellant’s argument that the trial court violated ORS
426.303 when it failed to advise him of his rights at the
recommitment hearing because it is dispositive. We thus do
not address appellant’s first argument about whether the
trial court otherwise followed the proper procedure.
         Appellant failed to preserve his arguments at the
trial court, and “[g]enerally, an issue not preserved in the
trial court will not be considered on appeal.” State v. Wyatt,

, 

 (2000). However, we have discretion to correct a “plain” error. ORAP 5.45(1). An error
is plain when the legal point is obvious and not reasonably
in dispute and the error is apparent on the record without
our having to choose among competing inferences. State v.
Vanornum, 

, 

 (2013). If an error
is plain, we must affirm if it is harmless. State v. Ortiz, 

, 

 (2024). If an error is plain and not
harmless, then we decide whether to exercise our discretion
to correct the error. 

. We consider, among other
things, “the competing interests of the parties; the nature of
the case; the gravity of the error; the ends of justice in the
particular case; how the error came to the court’s attention;
and whether the policies behind the general rule requiring
preservation of error have been served.” Ailes v. Portland
Meadows, Inc., 

, 382 n 6, 

 (1991).
        The meaning of ORS 426.303 presents a question of
statutory interpretation, which is a question of law. State v.
Ramoz, 

, 

 (2021). We interpret
the statute to identify the legislature’s intent by examining
the text in context and giving any relevant legislative history appropriate weight. State v. Gaines, 

,

 (2009).
        The recommitment process begins with ORS
426.301. Under that statute, OHA, or the director of the
treating facility if OHA delegates its authority to the director, must notify a committed person of the intent to continue
the commitment. If OHA or the facility director certifies to
   2
     The legislature has amended ORS 426.301 since the hearing on continued
commitment. Or Laws 2025, ch 559, § 13. The amendment does not affect our
analysis, and we refer to the current version of the statute.
814                                            State v. C. E. W.

the court that “the person is still a person with mental illness and is in need of further treatment,” they shall notify
the committed person “immediately” by issuing a copy of
the certification to the person and the community mental
health program director in the county. ORS 426.301(1). The
statute requires OHA’s certification to advise the person of
the information listed in ORS 426.301(2), including, among
other things, that the person has the right to counsel, the
right to a physical examination by a physician or other qualified professional at the state’s expense, and the right to subpoena witnesses and present evidence. The committed person may protest continued commitment or may not protest.
ORS 426.301(5).
       If the person protests continued commitment, then
ORS 426.303 governs the next stage of the process:
       “When the person protests a further period of commitment the Oregon Health Authority or facility designated in
   accordance with ORS 426.301 shall immediately notify the
   court and the court shall have the person brought before
   it and shall again advise the person that the authority or
   facility has requested that commitment be continued for
   an additional period of time and that if the person does
   not protest this commitment the commitment will be continued for an indefinite period of time up to 180 days. The
   person shall also be informed of the rights set forth in ORS
   426.301.”
(Emphasis added.) The italicized sentence is at issue here.
The parties agree that appellant was not informed of the
rights set forth in ORS 426.301 during the hearing. Instead,
the trial court read appellant a version of the rights listed
in ORS 426.100, which apply at an initial commitment proceeding, not a recommitment hearing. As a result, the rights
that the trial court read to appellant did not include the
right in ORS 426.301(2)(f) to an examination by a courtappointed physician or other qualified professional other
than a member of the staff where appellant is confined.
        Appellant argues that the first sentence of ORS
426.303 directs the court to advise a committed person of
the nature of the proceeding and that the second sentence
continues to address the court’s duty at the hearing. The
Cite as 

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state responds that the legislature’s use of the passive voice
in the second sentence indicates that the legislature wanted
only to ensure that the person had been informed of the
rights set forth in ORS 426.301 by someone, at some point.
The state argues that, in this case, because OHA or its designee informed appellant of his rights as set forth in ORS
426.301 when it served him with the notice,3 there is no violation of ORS 426.303.
         We conclude that the second sentence of ORS
426.303 obviously requires a person to be informed of their
rights as set forth in ORS 426.301 during the recommitment
hearing. That is, even assuming that the statute’s use of the
passive voice in the sentence at issue makes it not obvious
who must inform the person of their rights at the recommitment hearing, it is obvious that someone must do so at the
recommitment hearing.
         ORS 426.303 provides for the step in the recommitment process where the committed person is brought to court
for a recommitment hearing. It requires that the committed
person again be informed of the information that should
have been communicated to the committed person when
they were notified of OHA’s intent to continue the commitment under ORS 426.301. The first sentence of ORS 426.303
expressly requires the court to advise a committed person
of the process—repeating information already provided
to the committed person in the certification by OHA. The
second sentence of ORS 426.303 states, “The person shall
also be informed of the rights set forth in ORS 426.301.”
Even though who shall inform the committed person of their
rights could be unclear when the second sentence of ORS
426.303 is read in isolation because of the statute’s use of the
passive voice, the statute’s use of “also” makes plain that the
second sentence continues on the same subject as the prior
sentence. ORS 426.303 requires that the committed person
be again advised of their rights as set forth in ORS 426.301,

     3
       ORS 426.301 requires OHA or its designee to serve the certification on
the person and provides that “the certification must advise the person of all the
following” information, which includes a person’s rights under ORS 426.301(2).
The record shows that OHA served a document on appellant called a notice. The
notice contains the substance of a certification under ORS 426.301. In this opinion, we refer to that document as the notice or the certification.
816                                          State v. C. E. W.

in the same way that it requires the court to repeat the
information about the recommitment process. Thus, the text
of ORS 426.303 makes it apparent that the statute requires
that the rights under ORS 426.301 are communicated to the
committed person at the recommitment hearing.
         The context includes ORS 426.301, which already
requires that the certification include the advice of rights
listed in ORS 426.301(2). If the state were correct that the
second sentence of ORS 426.303 required only that the
rights listed in ORS 426.301 be provided in the certification that was provided to the committed person, then ORS
426.303 would be superfluous. See SAIF v. Ward, 

, 

 (2022) (“[W]hen construing a statute to determine the intent of the legislature, this court will
generally attempt to avoid a statutory construction that creates redundancy in the way that the statute is read.”).
          Although we do not appear to have previously
expressly rejected the interpretation advanced by the state
in this case, we have held that a trial court plainly errs by
violating ORS 426.303 when it fails to ensure that someone
had advised a committed person of their rights at a recommitment hearing. See State v. I. H., 

,

 (2019) (accepting the state’s concession that the
trial court plainly erred by violating ORS 426.303 and that
the error required reversal when the trial court failed to
advise a committee at a recommitment hearing of all of his
rights under ORS 426.301); see also State v. B. L. K., 

, 

 (2018) (accepting the state’s
concession that the trial court committed plain error at a
recommitment hearing when it failed to advise the appellant
of all of his rights as required by ORS 426.301(3) and ORS
426.303); State v. Montgomery, 

, 

 (1997) (“We agree with the state and appellant that in a
proceeding for the continuation of a commitment, the alleged
mentally ill person must be advised of the rights identified
in ORS 426.301 and that, as with a failure to advise a person of his or her rights pursuant to ORS 426.100 in an initial commitment proceeding, the failure to give the advice
is reversible error.”). I. H., B. L. K., and Montgomery are per
curiam opinions where we accepted the state’s concessions
Cite as 

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of error without a lengthy explanation of the facts or our
reasoning, and they appear to involve slightly different
applications of ORS 426.303 than is the application before
us in this case. But our conclusion that ORS 426.303 plainly
requires someone to advise a committed person of the rights
set forth in ORS 426.301 during the recommitment hearing is consistent with our previous conclusions that the trial
courts violated ORS 426.303 by failing to ensure that the
appellants were advised of the rights under ORS 426.301 at
a recommitment hearing.
          There could be tension between interpreting a statute for the first time in an opinion and concluding in that
same opinion that a trial court plainly erred when it failed
to follow the statute. The meaning of some statutes, however, is obvious from their text and context. Such statutes do
not require an appellate court decision to make their meaning clear. Other statutes require complex or extended statutory interpretation to discern the legislature’s intent, and
the meaning of those statutes is not obvious. For example,
we have concluded that a trial court plainly erred by failing
to merge verdicts on two counts that were charged under
the same statute, which we had not previously interpreted,
when the meaning of that statute “[was] obvious and not
reasonably in dispute.” State v. Mankiller, 

, 

 (2025); see also, e.g., State v. Gayman,

, 

 (2021) (concluding
that a trial court plainly erred when it denied a defendant’s
motion for judgment of acquittal because the defendant’s
motor assisted scooter did not constitute a “motor vehicle”
under the relevant criminal statute even though we had not
previously interpreted the statute to determine whether the
legislature intended a motor assisted scooter to qualify as
a motor vehicle). By contrast, we have concluded that the
meaning of a statute is not plain when identifying the legislature’s intent requires complex or extended statutory interpretation analysis. See, e.g., State v. Johnson, 

, 

 (2023) (concluding that the defendant’s
proposed interpretation of the statute was not plain because
“[t]o conclusively resolve this legal issue of first impression,
we would have to engage in an in-depth analysis of statutory text, context, and legislative history to a degree that
818                                          State v. C. E. W.

exceeds the bounds of plain-error review”). Those cases illustrate the common-sense concept that the legislature clearly
expressed its intent in the text and context of some statutes
but the legislature’s intent in other statutes is reasonably in
dispute until interpreted in a judicial opinion.
          Here, the legislature’s intent in the second sentence
of ORS 426.303 that we recognize today is obvious and not
reasonably in dispute even though we have not previously
published a decision saying so explicitly, like the statute at
that was at issue in Mankiller. The parties agree that no
one advised appellant of his rights set forth in ORS 426.301
during the recommitment hearing. The state’s argument
relies on the notice that was read to appellant six weeks
prior to the recommitment hearing. The state does not argue
that anyone advised appellant of his rights as set for in ORS
426.301 at any other time. Thus, the trial court plainly erred
by failing to ensure that appellant was advised of his rights
under ORS 426.301 during the recommitment hearing, as
required by ORS 426.303.
         We also conclude that the error is not harmless. As
we have explained in prior cases, a trial court’s failure to
advise a committee of their rights at a recommitment hearing requires reversal, which necessarily includes a conclusion that the error is not harmless. I. H., 

. The state argues that any error is harmless because
appellant was advised of his rights when he was served with
the certification, weeks prior to the hearing, and because
appellant does not assert that he would have done anything
differently if he had been correctly advised of his rights at
the hearing. We disagree.
          As we noted above, the record contains a notice
of rights that generally follows the rights set out in ORS
426.301. The notice is signed by the person who served
appellant with the notice in a space that asserts that the
server read the notice to appellant and that appellant “protests a further period of commitment verbally or by refusing
to sign.” Appellant did not sign the notice in the space provided for his signature. The absence of appellant’s signature
is significant in our harmless error analysis.
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 (2026)                             819

        In State v. A. R., 

, 

 (2004), we held that the trial court erred when it failed
to advise the appellant of their rights pursuant to ORS
426.100(1). We concluded that the error was harmless because
the record contained a written notice that “exceeded” the
advice required by ORS 426.100(1). 

. “The person
who served the notice on [the] appellant signed and dated
the notice, attesting that the notice was not only delivered
to appellant but was also read to her. [The] [a]ppellant also
signed and dated the notice.” 

.
         We distinguished A. R. in State v. N. S., 

, 

 (2005). In N. S., the appellant sought reversal
of an initial commitment, arguing “that the trial court erred
in not advising him of his rights under ORS 426.100(1).” 

. The appellant was served with a citation “signed and
dated by the deputy who served it.” 

 (footnote omitted). The citation was not signed and dated by the appellant.
We concluded that “without an acknowledgment from [the]
appellant that he actually read the citation, we cannot conclude that he was adequately advised of his rights as we did
in [A. R.].” 

 We also noted that the appellant’s conduct at
the hearing itself “further supports” the conclusion that the
error was not harmless. 

          Since A. R. and N. S., we have continued to place
significance on whether a person signed the notice of rights
prior to a hearing when deciding whether the failure to
advise a person of their rights at a civil commitment or
recommitment hearing was harmless. See State v. S. J. F.,

, 

 (2011) (noting the significance of that distinction between A. R. and N. S.). In State
v. T. W., the appellant raised as plain error the trial court’s
failure to advise him that “the court would appoint a physician to examine him at court expense, as the court was
required to do under ORS 426.303 and ORS 426.301(3)(h).”

, 

 (2019). The state conceded that the trial court plainly erred. 

 The state argued
that the error was harmless and that we should not exercise
our discretion to correct it because the appellant signed the
written notice, which included the omitted advice, and the
person serving the notice also sign it. 

 We concluded that
820                                           State v. C. E. W.

the error was harmless, relying on A. R. See also State v.
J. R., 

, 

 (2020) (concluding that a “virtually identical issue” to T. W. was harmless
and that we would not exercise our discretion to correct the
error).
         Here, as we have noted, appellant did not sign the
written notice that was served on him six weeks prior to the
recommitment hearing. Accordingly, the fact that the written notice was served on him and read to him does not render harmless the error in failing to advise him of the rights
at the recommitment hearing, consistent with our analysis
in N. S.
         In a hearing for continued commitment, like this
one, the state seeks to deprive a person of their liberty
because of the impacts of their mental illness. In this case,
the evidence showed that appellant has schizoaffective disorder and, as the state points out on appeal, “remain[ed]
actively symptomatic despite receiving medication on a complex treatment regimen that requires regular blood draws[.]”
We cannot conclude that OHA providing the appellant with
notice of his rights weeks prior to the recommitment hearing renders harmless the failure of the trial court to ensure
the person is advised of their rights at the time of the hearing, in violation of ORS 426.303, when the record lacks an
acknowledgment by the allegedly mentally ill person that
they understood the rights provided to them prior to the
hearing. N. S., 

; see also S. J. F., 

 (relying on N. S. to conclude that a trial court’s failure
to advise a person of their rights at a commitment hearing
was not harmless when the record reflected that the person’s
attorney had discussed whether to proceed with the hearing
in her absence or continue the hearing but the record did not
contain an acknowledgment from the appellant that they
had been advised of their rights). On this record we cannot
say that the trial court’s error was harmless.
         We exercise our discretion to correct the error and
reverse. The error is grave, the relative interests of the parties weigh in favor of reversal, and the ends of justice also
weigh in favor of reversal. We have explained when exercising our discretion to reverse in similar cases that plain
Cite as 

 (2026)                             821

error review of violations of the notice requirements for initial commitments “is justified by 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. M. M., 

, 116, 

 (2017) (internal quotation marks omitted). Those same
considerations apply at this recommitment hearing, and
we exercise our discretion to correct the plain violation of
ORS 426.303 here.
        Reversed.
        POWERS, J., concurring.
          I fully concur with the majority opinion’s conclusion that the failure to advise appellant of his rights at the
recommitment hearing as required by ORS 426.303 was
plain error and that we should exercise our discretion to correct it. I write separately because it is not clear to me that
State v. Mankiller, 

, 

 (2025), correctly applied the “obvious and beyond reasonable dispute”
portion of the plain-error analysis. See State v. Vanornum,

, 

 (2013) (setting out the three
requirements for plain-error review).
         In Mankiller, the defendant asserted that the trial
court plainly erred by failing to merge two guilty verdicts
for unlawful taking of an elk, ORS 498.002(1), and the state
remonstrated that it was not obvious that there was only
one victim. 

. Instead of concluding that
the legal error was not obvious for purposes of plain-error
review, we concluded it was “starkly apparent” how to interpret the statute. Compare State v. Farmer, 

,

 (1993) (explaining that an “open issue” is not
an “obvious” error if it is “reasonably open to dispute”), with
Mankiller, 

 (interpreting the statutory
framework governing wildlife crimes to conclude that it
was “starkly apparent” that the legislature “would view the
state as the victim” of the unlawful taking of an elk crime).
To me, that approach seems to run afoul of how an appellate
court determines whether an issue is “obvious” for purposes
of plain-error review. See, e.g., State v. Reyes-Camarena,

, 

 (2000) (holding that the alleged
822                                                       State v. C. E. W.

error was not plain, in part, because “[n]o Oregon appellate
court ha[d] considered the issue, let alone held that [the]
defendant’s position [was] correct”); State v. Gallegos, 

, 

, rev dismissed, 

(2020) (explaining that the competing arguments offered by
the parties demonstrated that the alleged error was reasonably in dispute, which “has the effect of precluding plain-error review”); State v. Smith, 

, 

, rev den, 

 (2016) (“Without commenting on
the relative merit of those crosscutting contextual contentions, it suffices to observe that [the] defendant’s is not so
conclusive as to render his construction beyond reasonable
dispute.”). Here, however, we need not rely on Mankiller or
resolve the tension it creates because the legal error—viz.,
the failure to follow the requirements of ORS 426.303 and
provide appellant notification of his rights—is obvious and
not in dispute.4
         As the majority opinion explains, ORS 426.303
requires individuals subject to recommitment hearings to
be advised of their rights. 347 Or App at 815; see also ORS
426.303 (“The person shall also be informed of the rights
set forth in ORS 426.301.”). Setting aside the parties’ reasonable dispute about the mechanics of what the legislature
intended (e.g., who was responsible and how that responsibility would be carried out in practical terms?), the parties agree that appellant was not provided those rights at
the recommitment hearing. That legal error is obvious and
otherwise meets the requirements for plain-error review.
           I respectfully concur.




    4
      Similarly, the majority opinion’s citation to State v. Gayman, 

, 

 (2021), is unnecessary in my view. Not only is it doubtful that
the requirements for plain error were met in that case, see 

(Powers, J., dissenting), but also we need not rely on cases that push the boundaries of what it means to qualify for plain-error review when it is undisputed
in this case that there is an obvious legal error by failing to provide appellant
notification of his rights as required by ORS 426.303.