In the Matter of J. J. S., a Person Alleged to have Mental Illness.
J. J. S., Appellant. STATE OF OREGON, Respondent,
Submitted May 6, 2019
Clackamas County Circuit Court 18CC04283 L. Randall Weisberg,
Judge pro tempore.
R. DeBin and Multnomah Defenders, Inc., fled the brief for
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
Glick, Assistant Attorney General, fled the brief for
Lagesen, Presiding Judge, and DeVore, Judge, and James,
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.
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.
mental health providers placed her under a hospital hold on
July 31, 2018, pursuant to ORS 426.232. 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
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). 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.
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 ...