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In re J. J. S.

Court of Appeals of Oregon

June 5, 2019

In the Matter of J. J. S., a Person Alleged to have Mental Illness.
v.
J. J. S., Appellant. STATE OF OREGON, Respondent,

          Submitted May 6, 2019

          Clackamas County Circuit Court 18CC04283 L. Randall Weisberg, 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

          Julia Glick, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Appellant seeks reversal of an order of civil commitment. She argues that the trial court erred in denying her motion to dismiss after she was held for more than five judicial days prior to a hearing. The state contends that appellant "invited the error" when appellant's attorney was late to a prior unrelated hearing for a different client that, in turn, prevented the court from reaching appellant's hearing as scheduled. Held: The invited error doctrine has no application to these circumstances. The alleged error is the trial court's denial of appellant's motion to dismiss, and appellant did not "invite" the trial court to rule that way. Further, the attorney's tardiness is not logically attributable to appellant.

          DeVORE, J.

         [297 Or.App. 857] Appellant seeks reversal of an order of civil commitment. She argues that the trial court erred in denying her motion to dismiss, because she was held for more than five judicial days prior to a hearing. The state attributes the delay to appellant's attorney. Because the delay cannot be explained that way, we reverse.

         Appellant's mental health providers placed her under a hospital hold on July 31, 2018, pursuant to ORS 426.232.[1] Four judicial days later, on August 6, 2018, the trial court issued an order setting the civil commitment hearing for the next day, August 7, the fifth judicial day after the hospital hold began. On August 7, appellant's attorney arrived late for a hearing that was scheduled before appellant's hearing. Although the prior hearing was unrelated to appellant's hearing, the attorney's tardiness delayed the prior hearing, leaving no time for appellant's hearing. Appellant's hearing had been set as the last on the docket for the day. On its own motion, the trial court ordered that appellant's hearing would be postponed to the next day, due to the court's inability to conduct the hearing.

         At the commitment hearing on August 8, a new attorney represented appellant. Appellant moved to dismiss the case, because the court did not hold the hearing within five judicial days of the hospital hold and because the delay could not be explained by postponement at the request of a party. See ORS 426.095(2)(c) (providing for good [297 Or.App. 858] cause postponement when requested by the parties).[2] The trial court denied appellant's motion, concluding that the court was "not physically able" to conduct appellant's hearing on the prior day because of her counsel's tardiness to the earlier hearing and restrictions on the court's ability to hold after-hours hearings. After an evidentiary hearing, the court committed appellant for no more than 180 days.

         On appeal, appellant assigns error to the trial court's denial of her motion to dismiss, arguing that dismissal was required for failure to conduct a hearing within the five-day period required by ORS 426.232(2). Appellant acknowledges that the statute authorizes the court to postpone a hearing on the motion of a party for "good cause" under ORS 426.095 (2Xc), but she argues that the statute does not authorize the court to postpone the hearing on its own motion. The state responds that the trial court did not commit reversible error, because appellant "invited" any error because her ...


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