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In re L. O. W.

Court of Appeals of Oregon

June 13, 2018

In the Matter of L. O. W., a Person Alleged to have a Mental Illness.
v.
L. O. W., Appellant. STATE OF OREGON, Respondent,

          Submitted August 29, 2017

          Marion County Circuit Court 16CC04611 Janet A. Klapstein, Judge pro tempore.

          Joseph R. DeBin and Multnomah Defenders, Inc., fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary: Appellant seeks reversal of an order of civil commitment. She contends that the trial court was required to dismiss the commitment case because appellant was involuntarily hospitalized for more than five judicial days without a hearing in violation of ORS 426.232. The state argues that dismissal was not required because, although appellant was detained for longer than five judicial days, nothing in ORS chapter 426 requires dismissal so long as the trial court acts in compliance with other procedural provisions of the Chapter. Held: The trial court erred in failing to dismiss the case. The Court of Appeals has consistently held that dismissal is required where appellants are held for longer than five days in violation of ORS 426.232, and those decisions are supported by the procedural requirements of ORS chapter 426.

         [292 Or. 377] GARRETT, J.

         Appellant seeks reversal of an order of civil commitment. On appeal, citing ORS 426.232(2), [1] she contends that the trial court was required to dismiss the commitment case because appellant was involuntarily hospitalized for more than five days without a hearing. We agree and reverse.

         The facts are procedural and not in dispute. On July 20, 2016, appellant was brought to Salem Hospital and was held there against her will under ORS 426.232, which allows "physician hold" at a hospital. Subsection (2) of that statute requires that she had to be released within five judicial days, or by July 27. See ORS 174.120 (computation of judicial days).

         Although ORS 426.234 requires "immediate" notification of a physician hold to certain local mental health personnel and the circuit court, the trial court did not receive notice of appellant's detention until July 25. On July 26, the court issued a citation under ORS 426.090 scheduling a hearing for July 28 over appellant's objection. Appellant was not released as required by July 27 and, on that day, moved the court to release her. At the July 28 hearing, appellant moved to dismiss the case, arguing that the court's jurisdiction had expired when appellant was detained at the hospital for longer than the five judicial days allowed by ORS 426.232(2). The trial court denied the motion, reasoning that it had complied with the time requirements of other procedural statutes, and ordered appellant to be committed for a period of time not to exceed 180 days.[2] On July 29, the trial court denied appellant's motion for release.

         [292 Or. 378] On appeal, appellant renews her argument that the trial court was required to dismiss the case for lack of jurisdiction because she was not timely released from the physician hold. In support, she cites State v. J. D., 208 Or.App. 751, 752, 145 P.3d 336 (2006), in which we concluded that "the trial court erred in failing to dismiss the case when appellant was not released after the expiration of five days on the initial hold." The state argues that dismissal was not required because, although appellant was improperly detained for longer than five days, the trial court held a hearing within five judicial days of the trial court's issuing of a citation, as required by ORS 426.O95(2)(a). In other words, the state contends that, whatever the remedy may be for violation of ORS 426.232(2), it is not dismissal of a court proceeding, so long as the court acts promptly, in compliance with ORS 426.095 and other procedural statutes, upon receiving notice of the detention.

         We have consistently reversed civil commitment orders where appellants were held for longer than five judicial days in violation of ORS 426.232(2). See, e.g., State v. C. J. W., 289 Or.App. 63, 65, 407 P.3d 979 (2017); State v. B. L. H., 287 Or.App. 885, 886, 403 P.3d 538 (2017); State v. W. B. R., 282 Or.App. 727, 729, 387 P.3d 482 (2016); State v. J. K, 279 Or.App. 607, 608, 377 P.3d 695 (2016); State v. P. G., 225 Or.App. 211, 212, 200 P.3d 614 (2009); J. D., 208 Or.App. at 752. Failure to dismiss a commitment case following such a violation has been held to constitute plain error. See, e.g., State v. R. W. S., 292 Or.App. 405, __, __P.3d (2018); State v. E. R., 283 Or.App. 282, 283, 387 P.3d 497 (2016) (trial court plainly erred in failing to dismiss the case when the appellant was held for more than 18 days without a hearing).

         The state argues that those cases are distinguishable or wrongly decided. The state contends that nothing in ORS chapter 426 grants courts the authority-let alone requires courts-to dismiss commitment proceedings when ORS 426.232(2) is violated. The state distinguishes our [292 Or. 379] previous cases on the basis that they all involved specific concessions by the state that proceedings should have been dismissed. Alternatively, the state argues that we should overrule those decisions as plainly wrong. See State v. Civil, 283 Or.App. 395, 405-07, 388 P.3d 1185 (2017) (providing the standard for overruling our own precedents).

         Whether dismissal of a commitment case is required following a violation of ORS 426.232(2) is a question of law that we review for ...


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