State v. E. K. C.

362                  January 8, 2025                No. 29

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                In the Matter of E. K. C.,
         a Person Alleged to have Mental Illness.
                  STATE OF OREGON,
                       Respondent,
                             v.
                         E. K. C.,
                        Appellant.
               Lane County Circuit Court
                  24CC00993; A183793

  Michelle P. Bassi, Judge.
  Argued and submitted December 4, 2024.
   Christopher J. O’Connor argued the cause for appellant.
Also on the brief was Multnomah Defenders, Inc.
   Adam Holbrook, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
  AOYAGI, P. J.
  Affirmed.
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           AOYAGI, P. J.
         Appellant appeals a judgment of civil commitment.
In a single unpreserved claim of error, she argues that the
trial court violated her due process rights by proceeding
with the case and committing her despite her “never having
been properly served with a statutorily compliant citation.”
Appellant asserts that the citation failed to state the specific
reasons that she was believed to be a person with mental illness and that the service copy was not a duly certified copy.
For the following reasons, we affirm.
         Appellant was placed on an emergency physician’s
hold on February 14. A precommitment investigation report
was filed on February 20. The next day, the trial court ordered
the issuance of a citation. As relevant here, the citation stated,
“The specific reasons you are believed to be mentally ill are
set forth in the investigation report attached to this citation.” The citation was served on appellant on the afternoon
of February 21. According to the return of service, appellant
was personally served with “a true copy of the REDACTED
PRECOMMITMENT INVESTIGATION REPORT AND
CITATION.”1 (Boldface omitted.) The case proceeded to hearing, and the trial court committed appellant based on her
being a danger to others due to a mental disorder.
         ORS 426.090 requires a citation to state “the specific reasons the person is believed to be a person with
mental illness.” In this case, as to the specific reasons, the
citation referred appellant to the redacted precommitment
investigation report that was incorporated by reference and,
per the return of service, served with the citation.
         Appellant first argues that the citation was “incomplete” because the specific reasons needed to be stated in
the citation itself, rather than being incorporated by reference. That argument is foreclosed by our recent decisions in
State v. D. S., 

, ___ P3d ___ (2025) (holding that it was not plain error to proceed on a citation that
“attached and incorporated by reference the investigation
    1
      The precommitment investigation report itself is five pages, and there are
41 pages of attached supporting documentation, such as medical records. It is
unknown who made the redactions or what instructions that person was given,
although it appears that the redactions were possibly intended to remove hearsay.
364                                                          State v. E. K. C.

report, which did contain the required information and reasons”), and State v. S. A., 

, 3 & n 1, ___ P3d
___ (2024) (holding that it was not plain error to proceed
on a citation that attached and incorporated by reference
the notice of mental illness, which was served along with
other documents, “including the investigation report that
supplied even more information about the reasons appellant
was believed to be a person with mental illness”).
          Appellant next argues that “[e]ven if the reference
to an attached report is sufficient, the attached report itself
was heavily redacted and thus does not constitute proper
notice” because “key information is missing.” Conversely, at
oral argument, appellant suggested that there was too much
information in the report, such that the report was not “specific,” and that a more concise statement of specific reasons
was required. Neither argument persuades us. It is not obvious or beyond reasonable dispute that ORS 426.090 requires
a particular quantum of information regarding the specific
reasons that a person is believed to have mental illness, such
that the citation is invalid if it provides “too much” information on the specific reasons. Nor is it apparent why the court
cannot provide a redacted copy of a report, versus copying
over the unredacted portions into the citation or into a different attachment. See State v. Vanornum, 

,

 (2013) (an error is “plain” when it is an error of
law, is obvious and not reasonably in dispute, and is apparent
on the record without our having to choose among competing
inferences).
        We are unpersuaded that the report incorporated
by reference into the citation failed to provide the specific
reasons that appellant was believed to be a person with
mental illness, as required by ORS 426.090, or at least it is
not obvious and beyond reasonable dispute that the citation
was deficient in that regard.2
        Appellant also raises a service issue. ORS 426.090
requires a citation to “be served upon the person by delivering

    2
      To the extent that appellant’s arguments may rest in part on questions of first
impression as to exactly what ORS 426.090 requires, we are limited in our ability
to address those questions, both because we are reviewing only for plain error and
because the parties have not developed any statutory construction arguments.
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a duly certified copy of the original thereof to the person
in person prior to the hearing.” Appellant contends that
an “uncertified copy” was served on her. That contention
appears to hinge entirely on the proof of service referring
to service of a “true copy” of the citation and report, rather
than a “duly certified copy.” Appellant does not explain what
she understands to be the difference between a “true copy”
and a “duly certified copy,” and we agree with the state that
it is not apparent on the face of the record that appellant
was not served with a duly certified copy.
         Furthermore, we recently held in S. A. that it is not
obvious that the requirement to serve a duly certified copy of
the citation “creates or implements a core procedural right”
and that it therefore was not plain error to proceed on a
citation where the copy that was served on the appellant
had a handwritten correction to the hearing date that called
into question whether it constituted a duly certified copy. S.
A., 

. For both reasons, we reject appellant’s
“duly certified copy” argument.
         Having concluded that the trial court did not commit a “plain” error by proceeding on the citation issued in
this case, we have no occasion to reach the discretionary
prong of plain-error review. “Plain error review is a two-step
process.” State v. Mashadda, 

, 

 (2022); see also State v. Ortiz, 

, 

 (2024) (recognizing same). “We must first determine
that the error is plain, which means that it is an error of
law, obvious and not reasonably in dispute, and apparent on
the record without requiring the court to choose among competing inferences.” Mashadda, 

 (internal
quotation marks omitted). “Whether an error constitutes a
plain error is a question of law[.]” State v. Wiltse, 

, 

 (2024). Only if the error legally qualifies
as plain do we proceed to the second step of determining
whether to exercise our discretion to correct it. Ortiz, 

; Mashadda, 

.
         Appellant contends that under State v. T. C., 

, 

 (2023), rev den, 

 (2024),
there is an “exception” to plain-error review for civil commitment cases. She appears to read T. C. to mean that alleged
366                                          State v. E. K. C.

errors in civil commitment cases are not held to the same
requirements as other cases with respect to the first-step
determination of whether an error is “plain.” We disagree
with that reading. In T. C., there was no question that the
trial court had plainly erred in failing to serve the citation
on the appellant. Id. at 561 (discussing the state’s concession
that “the trial court erred by proceeding with the hearing
where, as here, appellant was not personally served with
the citation”). The issue in dispute was whether that plain
error was harmless. See id. (so framing the issue); id. at 562-
71 (analyzing harmlessness). We concluded that it was not
harmless, then exercised our discretion to correct it, citing,
among other things, the nature of civil commitment proceedings and the gravity of the error. Id. at 571.
          In a dissenting opinion, Judge Pagán took the view
that the plain error in T. C. was either harmless or not so
grave that we should exercise our discretion to correct it. Id.
at 583 (Pagán, J., dissenting). He suggested that the majority’s approach would result in too many plain-error reversals, citing State v. Taylor, 

, 

(2018), for the proposition that plain error review should be
“the exception, not the rule.” 

 The cited portion of Taylor
explains that the discretionary step of plain-error review
“acts as a baffle on free-wheeling consideration of plain
error” and that “[t]he criteria we must apply ensures that
review of plain error will be the exception, and not the rule.”
Taylor, 

 (internal quotation marks omitted). Responding to the dissent, the T. C. majority agreed
that plain-error reversal is an exception to the rule but
pointed to a long line of case law in which “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.” T. C., 

.
         To the extent appellant argues that the foregoing
statement in T. C. means that the Vanornum requirements
for determining whether an error is “plain” apply differently
in civil commitment cases, we disagree. T. C. pertains to
the second step of plain-error analysis (whether to reverse
based on plain error), not the first step (whether a plain
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error exists). The point of the “exception” statement in T. C.
is not that the legal requirements for an error to be “plain”
are somehow relaxed in civil commitment cases. Rather, the
point of that statement is that we are much less reticent
than usual to correct a plain error if it involves a civil commitment due process protection.
        Accordingly, having concluded that the alleged
error does not qualify as “plain,” we must affirm.
        Affirmed.