ORS 426.100¹
Advice of court
  • appointment of legal counsel
  • costs
  • representation of state’s interest

(1) At the time the person alleged to have a mental illness is brought before the court, the court shall advise the person of the following:

(a) The reason for being brought before the court;

(b) The nature of the proceedings;

(c) The possible results of the proceedings;

(d) The right to subpoena witnesses; and

(e) The person’s rights regarding representation by or appointment of counsel.

(2) Subsection (3) of this section establishes the rights of persons alleged to have a mental illness in each of the following circumstances:

(a) When the person is held by warrant of detention issued under ORS 426.070 (Initiation).

(b) In commitment hearings under ORS 426.095 (Commitment hearing).

(c) When the person is detained as provided under ORS 426.228 (Custody), 426.232 (Emergency admission) or 426.233 (Authority of community mental health program director and of other individuals).

(d) In recommitment hearings under ORS 426.307 (Court hearing).

(3) When provided under subsection (2) of this section, a person alleged to have a mental illness has the following rights relating to representation by or appointment of counsel:

(a) The right to obtain suitable legal counsel possessing skills and experience commensurate with the nature of the allegations and complexity of the case during the proceedings.

(b) If the person is determined to be financially eligible for appointed counsel at state expense, the court will appoint legal counsel to represent the person. If counsel is appointed at state expense, payment of expenses and compensation relating to legal counsel shall be made as provided under ORS 426.250 (Payment of costs related to commitment proceedings).

(c) If the person alleged to have a mental illness does not request legal counsel, the legal guardian, relative or friend may request the assistance of suitable legal counsel on behalf of the person.

(d) If no request for legal counsel is made, the court shall appoint suitable legal counsel unless counsel is expressly, knowingly and intelligently refused by the person.

(e) If the person is being involuntarily detained before a hearing on the issue of commitment, the right under paragraph (a) of this subsection to contact an attorney or under paragraph (b) of this subsection to have an attorney appointed may be exercised as soon as reasonably possible.

(f) In all cases suitable legal counsel shall be present at the hearing and may be present at examination and may examine all witnesses offering testimony, and otherwise represent the person.

(4) The responsibility for representing the state’s interest in commitment proceedings, including, but not limited to, preparation of the state’s case and appearances at commitment hearings is as follows:

(a) The Attorney General’s office shall have the responsibility relating to proceedings initiated by state hospital staff that are any of the following:

(A) Recommitment proceedings under ORS 426.307 (Court hearing); or

(B) Proceedings under ORS 426.228 (Custody), 426.232 (Emergency admission) or 426.233 (Authority of community mental health program director and of other individuals).

(b) The district attorney if requested to do so by the governing body of the county.

(c) In lieu of the district attorney under paragraph (b) of this subsection, a counsel designated by the governing body of a county shall take the responsibility. A county governing body may designate counsel to take responsibility under this paragraph either for single proceedings or for all such proceedings the county will be obligated to pay for under ORS 426.250 (Payment of costs related to commitment proceedings). If a county governing body elects to proceed under this paragraph, the county governing body shall so notify the district attorney. The expenses of an attorney appointed under this paragraph shall be paid as provided under ORS 426.250 (Payment of costs related to commitment proceedings). [Amended by 1967 c.458 §1; 1971 c.368 §2; 1973 c.838 §6; 1975 c.690 §6; 1977 c.259 §1; 1979 c.574 §§1,2; 1979 c.867 §10; 1981 s.s. c.3 §133; 1987 c.903 §14; 1993 c.484 §17; 2001 c.962 §57; 2013 c.360 §24]

Notes of Decisions

The due process clause of the U.S. Const., Am. XIV, entitles an allegedly mentally ill per­son to representa­tion by counsel, and provides that he, or one acting in his behalf, must be fully advised of his right to counsel, and this right be accorded unless intelligently and understandingly waived. State v. Collman, 9 Or App 476, 497 P2d 1233 (1972)

Where attorney in mental commit­ment hearing failed to make mo­tion for continuance, continuance would not be considered for first time on ap­peal. State v. Mills, 36 Or App 727, 585 P2d 1143 (1978), Sup Ct review denied

Granting of continuances upon showing of good cause is discre­tionary rather than mandatory. State v. Adair, 42 Or App 675, 601 P2d 830 (1979)

Where con­duct of defendant during hearing on involuntary commit­ment order demonstrated defendant was not capable of defending himself adequately, trial court did not abuse its discre­tion in refusing to allow him to represent himself. State v. Pieretti, 110 Or App 379, 823 P2d 426 (1991), Sup Ct review denied

Stipula­tion by counsel that per­son was dangerous and should be committed did not relieve court of responsibility for explaining nature of hearing and rights to per­son. State v. Allison, 129 Or App 47, 877 P2d 660 (1994)

Where allegedly mentally ill per­son waives advice of rights, waiver is ineffective unless court con­ducts examina­tion on record to verify that waiver is knowing and voluntary. State v. May, 131 Or App 570, 888 P2d 14 (1994); State v. Burge, 167 Or App 312, 1 P3d 490 (2000)

Advice re­gard­ing “nature of pro­ceed­ings” encompasses descrip­tion only of basic character of pro­ceed­ings, not legal and evidentiary standards to be employed. State v. Buffum, 166 Or App 552, 999 P2d 541 (2000)

Where court has pre­vi­ously determined ability of per­son to afford counsel, court may appropriately limit advice re­gard­ing per­son’s right to appointed or retained counsel. State v. Cach, 172 Or App 745, 19 P3d 992 (2001), Sup Ct review denied

Court is not re­quired to inform per­son of right to self-representa­tion. State v. Cach, 172 Or App 745, 19 P3d 992 (2001), Sup Ct review denied

Right to suitable counsel does not provide basis for collateral challenge to commit­ment order based on inadequate assistance of counsel. State v. Linder, 177 Or App 715, 33 P3d 1023 (2001)

Trial court at civil commit­ment pro­ceed­ing must either advise mentally ill per­son directly of mentally ill per­son’s rights or con­duct examina­tion on record to determine whether right to be advised has been knowingly and voluntarily waived. State v. Ritzman, 192 Or App 296, 84 P3d 1129 (2004)

Appellate court may review trial court’s failure to advise mentally ill per­son of specified pro­ceed­ings and rights for plain error. State v. S.J.F., 247 Or App 321, 269 P3d 83 (2011)

Law Review Cita­tions

11 WLJ 321 (1975)

Notes of Decisions

Where defendant in involuntary commit­ment pro­ceed­ing asserted he was denied due process because investigator misled him as to how soon hearing would take place and did not take long enough to complete investiga­tion but defendant did not assert that investiga­tion report was inaccurate or incomplete, due process viola­tion was not es­tab­lished. State v. Pieretti, 110 Or App 379, 823 P2d 426 (1991), Sup Ct review denied

Atty. Gen. Opinions

Mental Health Division recogni­tion of commit­ment order issued by Indian tribal court, (1979) Vol 40, p 31

Law Review Cita­tions

53 OLR 245-270 (1974)

Notes of Decisions

The doctor-patient privilege applies under these sec­tions. State v. O’Neill, 274 Or 59, 545 P2d 97 (1976)

Prior to commit­ment there must be evidence proving beyond a reasonable doubt that the individual is mentally ill as defined. State v. O’Neill, 274 Or 59, 545 P2d 97 (1976)

The Oregon commit­ment statutes are not unconstitu­tional on the grounds of vagueness or as an invasion of privacy as protected by the Ninth and Fourteenth Amend­ments to the United States Constitu­tion. State v. O’Neill, 274 Or 59, 545 P2d 97 (1976)

Oregon Constitu­tion did not require jury in mental commit­ment hearings. State v. Mills, 36 Or App 727, 585 P2d 1143 (1978), Sup Ct review denied

Alleged mentally ill per­son does not have right to remain silent in civil commit­ment pro­ceed­ing. State v. Matthews, 46 Or App 757, 613 P2d 88 (1980), Sup Ct review denied

Law Review Cita­tions

9 WLJ 63-85 (1973)

Chapter 426

Notes of Decisions

The entire statutory scheme of involuntary commit­ment provides adequate procedural safeguards which satisfies the require­ments of due process and equal protec­tion. Dietrich v. Brooks, 27 Or App 821, 558 P2d 357 (1976), Sup Ct review denied

Atty. Gen. Opinions

County of residence paying mental commit­ment costs, (1979) Vol 40, p 147; civil commit­ment to Mental Health Division of per­son against whom crim­i­nal charges are pending, (1980) Vol 41, p 91

Law Review Cita­tions

16 WLR 448 (1979)

1 Legislative Counsel Committee, CHAPTER 426—Persons With Mental Illness; Dangerous Persons; Commitment; Housing, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors426.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 426, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano426.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information