Oregon Advocacy Center et al. v. Bobby Mink, Director of the Department of Human Services et al.

Plaintiffs (appellees here) include A.J. Madison, a mentally
incapacitated criminal defendant who was detained in a
county jail while awaiting transfer to OSH, and two nonprofit
organizations that represent such defendants. Plaintiff Oregon
Advocacy Center ("OAC") is a federally authorized and funded law office established under the Protection and Advocacy
for Mentally Ill Individuals Act of 1986 ("PAMII"), 42
U.S.C. §§ 10801-10851. OAC represents the rights of people
with disabilities, including mentally ill individuals. Plaintiff
Madison is one of OAC's constituents and requested that
OAC bring this suit on his behalf. Plaintiff Metropolitan Public
Defender Services, Inc. ("MPD") represents indigent criminal
defendants in two Oregon counties.

These plaintiffs sued Stanley Mazur-Hart, the Superintendent
of the Oregon State Hospital, and Bobby Mink, the
Director of Oregon's Department of Human Services, in their
official capacities (collectively referred to as "OSH" in this
opinion). The plaintiffs alleged that OSH was violating mentally
incapacitated defendants' due process rights by unreasonably
delaying such defendants' transfer from county jails
to OSH for treatment.

II. The Problem

Under Oregon law, state circuit (trial) courts may, before or
during trial, find a criminal defendant to be incapacitated as
a result of a mental disease or defect such that the defendant
is unable to assist and cooperate with defense counsel or participate
in the defense.1 Such a finding triggers a process designed to evaluate, treat and restore the defendant's mental
health so that judicial proceedings may resume. "If [a] court
determines that [a criminal] defendant lacks fitness to proceed
[to trial], the proceeding against the defendant shall be suspended
. . . and the court shall commit the defendant to the
custody of the superintendent of a state mental hospital designated
by the Department of Human Services . . . ." Oregon
Revised Statute ("ORS") § 161.370(2). The Oregon State
Hospital is the only "state mental hospital" that has been designated
under this statute.

OSH is required to evaluate a defendant committed to its
custody within 60 days of the defendant's arrival to determine
"whether there is a substantial probability that, in the foreseeable
future, the defendant will have the capacity to stand
trial." ORS § 161.370(3) (emphasis added).2 If, at any time,
the defendant becomes capable of standing trial or will never
have that capacity, OSH must immediately so notify the court.
ORS § 161.370(4). Within 90 days of the defendant's arrival,
OSH must notify the court whether the defendant has the
capacity to stand trial and, if not, whether there is a substantial
probability that the defendant will gain or regain that
capacity in the foreseeable future. Id. If OSH determines that
such a probability exists, "the defendant shall remain in
[OSH's] custody where the defendant shall receive treatment
designed for the purpose of enabling the defendant to gain or
regain capacity." ORS § 161.370(5).

After a bench trial, the district court found that, during
2001 and early 2002, incapacitated criminal defendants spent
on average about one month in county jails before OSH
accepted them for the requisite evaluation and treatment. In
many cases, defendants had to wait two, three or even five
months. The court also spelled out in a series of factual findings - for the most part undisputed by OSH - the harms
suffered by defendants who are relegated to a wait-list status
and remain in jail until OSH has room for them. We set out
the most relevant undisputed findings here:

9. Jails can provide medication management for
people who are willing to take medications, but cannot
administer medication involuntarily, except in a
life-threatening emergency. When resources permit,
treatment for "unfit to proceed" defendants may possibly
include basic clinical psychiatry and intervention.
Such treatment is designed to stabilize the
inmate. However, some inmates, particularly those
with personality disorders, refuse or do not respond
to medication, and do not otherwise respond to the
treatment the jails can provide.

10. None of the jails in which these persons are
held is able to provide treatment designed to restore
a person found unfit to proceed to competency. People
found unfit to proceed are often overtly psychotic
and require special housing or segregation. They are
unpredictable and disruptive, taking up valuable
resources needed for the care of other inmates. If
they refuse to take medications, they often decompensate
rapidly. They often are confined in their
cells for 22 to 23 hours a day because of their behavior.
This exacerbates their mental illness.

11. Necessarily, the jails' only system for controlling
inmates is disciplinary, which is behaviordriven.
Such a system is ineffective for mentally ill
persons, and possibly harmful.

12. Unlike the county jails, OSH has the capacity
to treat a person's mental illness. Each of the units
housing persons found unfit to proceed is staffed by
a full-time psychiatrist, a psychologist, a mental health specialist, a recreation counselor, a social
worker, a mental health technician and nurses.

13. In addition to assessment, medication evaluation
and management, and individual and group psychotherapy,
OSH provides legal skills training three
times a week to assist patients in learning about the
law, pleas, and returning to court. This treatment is
designed to enable a person to regain fitness to proceed
to trial.

17. . . . This population has a high suicide risk, and
psychosis can be an emergency requiring immediate
treatment.

18. . . . Depriving [persons deemed unfit to proceed]
of necessary medical treatment increases the
likelihood that they may decompensate and suffer
unduly. The delays also hamper efforts to provide
effective representation regarding their criminal
prosecution.

19. . . . [A]s the client spends weeks and months in
jail awaiting hospitalization, th[e] evaluation
[required by state law] is delayed . . . . [F]or people
declared to be unable to aid and assist, delays in the
subsequent evaluative process can postpone the
opportunity for a trial for much longer than 60 days.

20. The jails have the capacity to transport inmates
to a treatment facility within 24 hours. The reason
they do not transport the inmates is because defendants
refuse to accept them.

III. The Suit

Plaintiffs sued OSH on March 19, 2002, seeking injunctive
and declaratory relief. OAC and MPD both brought suit on behalf of constituents who suffer injury as a result of OSH's
failure to provide them timely treatment. MPD also sued in its
own right. As of the date of filing, there were seven persons,
including Madison, who had been declared unfit and who
were being held in county jails awaiting transfer to OSH. As
of March 25, 2002, there were 11 such persons including
Madison. Madison was held in jail for a total of 23 days
before being admitted to OSH on March 28, 2002.

The district court held a bench trial on April 8, 2002, and
issued its findings of fact and conclusions of law on May 9.
It held that (1) OAC had standing to sue on behalf of its constituents,
mentally incapacitated criminal defendants, and
MPD had standing to sue in its own right; and (2) OSH was
violating the incapacitated defendants' Fourteenth Amendment
due process rights by unreasonably detaining them in
county jails that lack the facilities to treat and restore the
defendants' mental health. The district court entered an
injunction requiring OSH to admit mentally incapacitated
defendants within seven days of the judicial finding of their
incapacity to proceed to trial.

Thereafter, OSH moved to stay the injunction pending
appeal and to clarify and modify the injunction so that the
seven-day period would begin to run upon OSH's receipt of
notice of a finding of unfitness. On May 27, 2002, the district
court denied both motions. OSH timely appealed. On June 13,
2002, this court granted OSH's emergency motion to stay the
injunction pending appeal.

IV. Issues

OSH does not dispute that mentally ill persons who are
accused of crime have constitutionally protected due process
rights that the state is obliged to honor. Nor does OSH seriously contest that jails are inferior to OSH in their ability to
evaluate and treat mentally ill defendants, or that defendants
denied needed care are harmed thereby. Rather, OSH's primary
defenses are that (a) neither OAC nor MPD has standing
to sue and (b) in any event, liability lies not with OSH -
which under its reading of the Oregon statute has no duty to
mentally ill defendants until it has a bed available and actually
takes custody of them - but with the county jails who have
the legal duty to maintain and care for the defendants until
OSH can accept them. We address these and other of OSH's
arguments below.

Discussion

I. Justiciability

A. Standing

OSH argues that plaintiffs OAC and MPD lack standing to
bring this suit. Standing is a question of law, which we review
de novo. Bernhardt v. County of Los Angeles, 279 F.3d 862,
867 (9th Cir. 2002).

The doctrine of standing limits federal judicial power and
has both constitutional and prudential components. See United
Food & Commercial Workers Union Local 751 v. Brown
Group, Inc., 517 U.S. 544, 551 (1996). Under Article III, Section
2 of the Constitution, federal judicial power extends only
to cases or controversies, requiring "as an ‘irreducible minimum'
that there be (1) an injury in fact, (2) a causal relationship
between the injury and the challenged conduct, and (3)
a likelihood that the injury will be redressed by a favorable
decision." Id. "The essence of the standing question, in its
constitutional dimension, is whether the plaintiff has alleged
such a personal stake in the outcome of the controversy [as]
to warrant his invocation of federal-court jurisdiction and to
justify exercise of the court's remedial powers on his behalf."
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 260-61 (1977) (alteration in original) (internal quotation
marks omitted).

"Supplementing these constitutional requirements, the prudential
doctrine of standing has come to encompass several
judicially self-imposed limits on the exercise of federal jurisdiction."
United Food, 517 U.S. at 551 (internal quotation
marks omitted). These judicially self-imposed limits include
"the general prohibition on a litigant's raising another person's
legal rights, the rule barring adjudication of generalized
grievances more appropriately addressed in the representative
branches, and the requirement that a plaintiff's complaint fall
within the zone of interests protected by the law invoked."
Allen v. Wright, 468 U.S. 737, 751 (1984). The prudential
component of standing precludes the exercise of federal jurisdiction
even where the Constitution's "irreducible minimum"
requirements have been met. Unlike the constitutional
requirements, however, prudential limits on the exercise of
federal jurisdiction may be abrogated by Congress. United
Food, 517 U.S. at 551, 555-58. Together, the constitutional
and prudential components of standing ensure that plaintiffs
possess "such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions."
Baker v. Carr, 369 U.S. 186, 204 (1962).

The district court relied on the principles of "associational"
standing to conclude that OAC has standing to represent its
constituents - that is, "to represent the interests of persons
who are presently or may in the future be unfit to stand trial"
for purposes of obtaining injunctive or declaratory relief. See,
e.g., United Food, 517 U.S. at 551-58; Hunt v. Wash. State
Apple Adver. Comm'n, 432 U.S. 333, 342 (1977). As for
MPD, the district court concluded that MPD has standing to
represent its own interests because of injury it suffers from
OSH's practice of delaying the admission of mentally
impaired defendants.

OSH argues that OAC lacks associational standing and that
both OAC and MPD lack standing because they have failed
to show a causal connection between their injuries and OSH's
conduct. "We need only find that one petitioner has standing
to allow a case to proceed." Pub. Citizen v. Dep't of Transp.,
316 F.3d 1002, 1014-15 (9th Cir. 2003). Because the injunction
from which OSH appeals is statewide, and because MPD
serves only two counties whereas OAC serves the entire state,
we first address OAC's standing and, as it turns out, need not
address MPD's.

1. OAC's Associational Standing

[1] The doctrine of associational standing permits an organization
to "sue to redress its members' injuries, even without
a showing of injury to the association itself." United Food,
517 U.S. at 552. Whether an organization may assert a claim
on behalf of its members triggers both constitutional and prudential
concerns. As explained in Hunt:

[A]n association has standing to bring suit on behalf
of its members when: (a) its members would otherwise
have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization's
purpose; and (c) neither the claim asserted
nor the relief requested requires the participation of
individual members in the lawsuit.

432 U.S. at 343. Although the first two requirements are constitutional
in nature, the third is prudential. United Food, 517
U.S. at 555-57.

OSH contends that OAC fails the first and third prongs of
the Hunt test because OAC's constituents are not "members"
of OAC and OAC's claim requires the participation of individual
incapacitated criminal defendants. OSH's challenge
under Hunt's first prong thus raises a constitutional standing requirement, whereas its challenge under the third prong
raises only a prudential standing requirement.

OAC attempts to short-circuit OSH's standing arguments
by contending that Congress, in enacting PAMII, statutorily
conferred standing on organizations such as OAC as a matter
of law. Although we agree that PAMII is relevant to OAC's
standing, it cannot override constitutional standing requirements.

OAC correctly points out that Congress recognized that
"individuals with mental illness are vulnerable to abuse and
serious injury," and enacted PAMII to "ensure that the rights
of individuals with mental illness are protected" and to assist
states in establishing advocacy systems to "protect and advocate
the rights of such individuals through activities to ensure
the enforcement of the Constitution and Federal and State
statutes." 42 U.S.C. § 10801(a)(1), (b)(1), (b)(2)(A). Under
PAMII, protection and advocacy systems such as OAC are
authorized to "pursue . . . legal, and other appropriate remedies
to ensure the protection of individuals with mental illness
who are receiving care or treatment in the State." Id.
§ 10805(a)(1)(B). Criminal defendants found unfit to proceed
to trial do suffer from mental illness, and OAC is attempting
to pursue legal remedies to ensure the protection of such individuals.
Therefore, we accept OAC's argument that Congress
intended to confer standing to pursue suits like this one on
organizations like OAC. Nevertheless, OAC's argument that
it therefore necessarily has standing must fail.

The question whenever Congress attempts to confer standing
is whether the particular obstacle that Congress has
attempted to remove is "constitutional and absolute, or prudential
and malleable by Congress." United Food, 517 U.S. at
551. OSH's standing challenges under the first prong of Hunt
and under causation (addressed in section I.A.2 below) concern
standing requirements that are "constitutional and absolute"
in nature. Thus PAMII - although relevant to the standing analysis - does not definitively answer the question
whether OAC has standing.

We therefore turn to OSH's challenges to OAC's associational
standing. First, OSH claims OAC fails the first prong
of Hunt because mentally incapacitated defendants, although
constituents of OAC, are neither "members" of OAC nor the
functional equivalent of members. Second, OSH argues that
OAC fails the third prong of Hunt because its claims require
the participation of the individual incapacitated defendants.
We address each argument in turn.

Put in starkest terms, OSH's membership argument is that
because "individuals with mental illness [do not] actually control
OAC's activities and finances," OAC cannot claim standing
to represent their interests. In constitutional terms, the
essence of OSH's position is that without a direct membership
linkage to incapacitated defendants, OAC cannot rely on injuries
to those mentally ill defendants to meet the injury in fact
requirement and establish the personal stake in the outcome
of the litigation that the Constitution demands.

[2] We think OSH's membership argument is overly formalistic.
Given OAC's statutory mission and focus under
PAMII, its constituents - in this case, the mentally incapacitated
defendants - are the functional equivalent of members
for purposes of associational standing. In so holding, we agree
with the only other circuit to have addressed the question. See
Doe v. Stincer, 175 F.3d 879, 886 (11th Cir. 1999) (holding
that a PAMII organization "may sue on behalf of its constituents
like a more traditional association may sue on behalf of
its members").

Our holding also comports with Hunt. In Hunt, the
Supreme Court upheld the standing of the Washington State
Apple Advertising Commission, a state agency, to challenge
a North Carolina statute that imposed labeling restrictions on
Washington state apple growers and dealers. Hunt, 432 U.S. at 345. North Carolina argued that the Commission was not
a traditional voluntary membership organization asserting
claims of its members, but rather a state agency that was seeking
to assert claims on behalf of apple growers and dealers,
who simply formed its constituency. Thus the Commission
purportedly lacked the "personal stake" in the litigation
needed to establish constitutional standing. Id. at 341-43. The
Court concluded otherwise. The Court noted first that "[t]he
Commission, while admittedly a state agency, for all practical
purposes, performs the functions of a traditional trade association
representing the Washington apple industry." Id. at 344.
The Court found, moreover, that:

while the apple growers and dealers are not "members"
of the Commission in the traditional trade
association sense, they possess all of the indicia of
membership in an organization. They alone elect the
members of the Commission; they alone may serve
on the Commission; they alone finance its activities,
including the costs of this lawsuit, through assessments
levied upon them.

Id. at 344-45. Finally, the Court noted that "the interests of the
Commission itself may be adversely affected by the outcome
of th[e] litigation," because the annual assessments paid to the
Commission depend on the size of the market for apples
grown and packaged as "Washington Apples." Id. at 345.
Refusing to "exalt form over substance to differentiate
between the Washington Commission and a traditional trade
association representing the individual growers and dealers
who collectively form its constituency," the Court held that
the Commission had standing as the functional equivalent of
such a trade association. Id.

Similarly, we conclude that, for the purpose of determining
whether OAC had standing to sue on behalf of incapacitated
criminal defendants, OAC is the functional equivalent of a
voluntary membership organization. Accord Stincer, 175 F.3d at 885-86. Like the Commission in Hunt, as OSH implicitly
concedes, OAC serves a specialized segment of Oregon's
community: the disabled in general, including the mentally ill
and, more specifically, incapacitated criminal defendants.
Those groups are the primary beneficiaries of OAC's activities,
"including the prosecution of this kind of litigation."
Hunt, 432 U.S. at 344.

Admittedly, the constituents of OAC do not have all the
indicia of membership that the Hunt apple growers and dealers
possessed. OAC is funded primarily by the federal government,
and not by its constituents. OAC's constituents are not
the only ones who choose the leadership of OAC, and they are
not the only ones who may serve on OAC's leadership bodies.
Nevertheless, OAC's constituents do possess many indicia of
membership - enough to satisfy the purposes that undergird
the concept of associational standing: that the organization is
sufficiently identified with and subject to the influence of
those it seeks to represent as to have a "personal stake in the
outcome of the controversy." See Vill. of Arlington Heights,
429 U.S. at 261 (internal quotation marks omitted).

Under PAMII, the governing board of an organization like
OAC "shall be composed of . . . members . . . who broadly
represent or are knowledgeable about the needs of the clients
served by the system," where such members are defined to
include "individuals who have received or are receiving mental
health services and family members of such individuals."
42 U.S.C. § 10805(c)(1)(B). Also, a protection and advocacy
system such as OAC must:

establish an advisory council . . . which shall include
. . . individuals who have received or are receiving
mental health services, and family members of such
individuals, and at least 60 percent the membership
of which shall be comprised of individuals who have
received or are receiving mental health services or
who are family members of such individuals; and . . .which shall be chaired by an individual who has
received or who is receiving mental health services
or is a family member of such an individual.

Id. § 10805(a)(6)(B-C). Furthermore, PAMII provides that a
system such as OAC shall "establish a grievance procedure
for clients or prospective clients of the system to assure that
individuals with mental illness have full access to the services
of the system and . . . to assure that the . . . system is operating
in compliance with the provisions" of PAMII. Id.
§ 10805(a)(9).

OAC's executive director, Robert Joondeph, provided
undisputed testimony that people with disabilities constitute a
majority of OAC's board of directors and that individuals
who had received or were receiving mental health services, or
family members of such individuals, compose more than 60
percent of the advisory council for OAC's PAMII-funded program.
Together, these circumstances suggest that, "[m]uch
like members of a traditional association, the constituents of
the Advocacy Center possess the means to influence the priorities
and activities the Advocacy Center undertakes." Stincer,
175 F.3d at 886. "In a very real sense, therefore," OAC represents
those who suffer from mental illness, including incapacitated
criminal defendants, and "provides the means by which
they express their collective views and protect their collective
interests." Hunt, 432 U.S. at 345.

Like the Commission's interests in Hunt, OAC's interests
"may be adversely affected by the outcome of this litigation."
Id. at 345. Although OAC has no direct financial stake in the
outcome of this litigation - as the Apple Advertising Commission
did in Hunt - OAC has a statutorily mandated interest
in the timely transfer of mentally incapacitated defendants
to OSH. To the extent OAC devotes resources to helping such
persons obtain timely treatment, the other needs of OAC's
constituents may go unmet. See Stincer, 175 F.3d at 886 n.5
(noting that the plaintiff Advocacy Center's clients have an interest in access to records and that, "to the extent that the
Advocacy Center devotes its work to assisting clients in
obtaining records, other needs may go unmet"). This shared
interest " ‘assure[s] that concrete adverseness which sharpens
the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.'
" Hunt, 432 U.S. at 345 (quoting Baker, 369 U.S. at
204). We hold, therefore, that "[u]nder the circumstances
presented here, it would exalt form over substance," to conclude
that OAC's constituents lack sufficient indicia of membership
to justify OAC's Article III standing. Id.

Having determined that OAC's constituents are the functional
equivalent of members, we must further determine
under the first prong of Hunt whether at least one of OAC's
constituents would have had "standing to present, in his or her
own right, the claim (or the type of claim) pleaded by the
association." United Food, 517 U.S. at 555. OSH does not
dispute that at the time the complaint was filed, at least seven
OAC constituents, including Madison, the individual plaintiff,
were being held in county prisons awaiting transfer to OSH
and thus had standing to sue.4 Thus, the first prong of Hunt
is satisfied.

OSH also argues that OAC lacks standing under the third
prong of Hunt because OAC's claim requires the participation
of the individual incapacitated defendants. We reject this
argument as well. Although, as explained above, the Constitution
constrains Congress' ability to confer standing, Congress
can confer standing where the only obstacles are "judicially
fashioned and prudentially imposed." United Food, 517 U.S.
at 551, 558. The third prong of Hunt, which requires that
associations have standing only when "neither the claim
asserted nor the relief requested requires the participation of individual members in the lawsuit," 432 U.S. at 343, is one
such prudential, as opposed to constitutional, requirement of
standing. United Food, 517 U.S. at 557 ("[T]he third prong of
the associational standing test is best seen as focusing on
these matters of administrative convenience and efficiency,
not on elements of a case or controversy within the meaning
of the Constitution."); see also Cent. Delta Water Agency v.
United States, 306 F.3d 938, 951 n.9 (9th Cir. 2002) (noting
that unlike the first two Hunt factors, "the third factor is
‘merely prudential,' and designed to promote efficiency in
adjudication"). As discussed above, Congress clearly intended
PAMII to confer standing on organizations such as OAC to
litigate on behalf of those suffering from mental illness. In
United Food, the Supreme Court concluded: "Because Congress
authorized the union to sue for its members' damages,
and because the only impediment to that suit is a general limitation,
judicially fashioned and prudentially imposed, there is
no question that Congress may abrogate the impediment." 517
U.S. at 558. Here, we hold that because Congress authorized
advocacy and protection organizations like OAC to sue on
behalf of those suffering from mental illness, and because the
only impediment to such a suit is a prudential one, Congress
may abrogate the impediment.

The question, then, is whether Congress did abrogate the
prudential impediment to OAC's standing. In United Food,
the Court held that Congress had "without doubt" abrogated
the third prong of the Hunt test by specifically authorizing the
union to sue for its members' damages. Id. at 548-49, 558. In
the statute at issue in United Food, Congress explicitly authorized
unions to sue on behalf of their members when an
employer fails to give workers 60 days' notice before a plant
closing or mass layoff as the statute required. Id. at 549.
PAMII, like the WARN Act at issue in United Food, explicitly
authorizes organizations such as OAC to bring suit on
behalf of their constituents, who include criminal defendants
declared unfit to proceed. PAMII provides that "[a] system
established in a State under . . . section 10803 of this title to protect and advocate the rights of individuals with mental illness
shall . . . have the authority to . . . pursue administrative,
legal, and other appropriate remedies to ensure the protection
of individuals with mental illness who are receiving care or
treatment in the State."5 42 U.S.C. § 10805(a)(1)(B). We hold
that in light of the role Congress assigned by statute to advocacy
organizations such as OAC, Congress abrogated the
third prong of the Hunt test.

2. OAC's Standing: Causation

Finally, OSH argues that OAC has failed to establish the
second constitutional requisite of standing - a causal connection
between its injuries and OSH's conduct. Specifically,
OSH argues that any injury to incapacitated defendants and
OAC is not fairly traceable to OSH's actions because, before
OSH has beds available and actually takes custody of incapacitated
criminal defendants, Oregon counties, not OSH,
have the duty to provide these defendants with constitutionally
adequate care. If the county jails were providing adequate
treatment, then incapacitated criminal defendants and OAC
would not suffer any injury or adverse effect. Therefore, even
if the delay in treatment causes injury, OSH is not the cause
of the delay. We disagree.

Under Oregon law, OSH has the duty to accept and treat
mentally incapacitated criminal defendants. The question is whether that duty resides in or shifts to county jailers until
such time as OSH has an available bed for and accepts the
defendant. The answer is found in the plain meaning of the
governing statute.

In interpreting a statute, the court's task is to discern
the intent of the legislature. To do that, the court
examines both the text and context of the statute . . . .
[T]he text of the statutory provision itself is the starting
point for interpretation and is the best evidence
of the legislature's intent.

Portland Gen. Elec. Co. v. Bureau of Labor & Indus., 859
P.2d 1143, 1145-46 (Or. 1993) (internal citations omitted).
"Words of common usage should be given their plain, natural
and ordinary meaning." Carlson v. Myers, 959 P.2d 31, 36
(Or. 1998) (internal quotation marks omitted). The context of
the statutory provision at issue includes other provisions of
the same statute and other related statutes, as well as prior
versions of the same statute. Id.; Portland Gen. Elec., 859
P.2d at 1146. Only if the legislature's intent is unclear from
the text and context of the statute should courts look to legislative
history. Portland Gen. Elec., 859 P.2d at 1146.

Here, the Oregon legislature's intent is clear from the text
of the statute. The plain meaning of the text is unambiguous.
ORS § 161.370(2) provides in relevant part:

If the court determines that the defendant lacks fitness
to proceed, the proceeding against the defendant
shall be suspended . . . and the court shall commit the
defendant to the custody of the superintendent of a
state mental hospital designated by the Department of Human Services or shall release the defendant on
supervision for so long as such unfitness shall
endure. The court may release the defendant on
supervision if it determines that care other than commitment
for incapacity to stand trial would better
serve the defendant and the community.

(Emphasis added.) OSH is the only designated state mental
hospital. Significantly, the statute makes no mention of any
intermediary, county jail or otherwise, to whom the court can
commit a mentally incapacitated defendant before either committing
the defendant to OSH or releasing the defendant on
supervision.8 By statute, therefore, the court has only two
alternatives: it can commit the defendant to OSH or release
the defendant on supervision. There is no middle ground.

A fair reading of the statute's text leads to the conclusion
that it is aimed directly at keeping mentally incompetent
defendants out of county jails, not at conferring responsibility
on those jails for interim treatment. OSH's statutory duty is
triggered whenever a court decides to commit a defendant to
OSH rather than release the defendant.

OSH argues that a former version of ORS § 161.370, which
was passed in 1999 but which expired at the end of 2001 due
to a sunset provision, reflects a deliberate decision by the Oregon
legislature to make counties responsible for the care and
treatment of incapacitated criminal defendants until OSH
accepts them. As we have said, the prior version of the statute
is part of its context under Oregon jurisprudence, but the 1999
statute does not detract from our reading of the current law.

The pre-1999 version of the statute resembled the current
version. It provided:

When a court determines that a defendant lacks fitness
to proceed and commits the defendant to the
custody of the superintendent of a state mental hospital
or other treatment facility under subsection (2)
. . . the defendant shall be transported to the hospital
or treatment facility as soon as practicable. Transport
shall be completed within seven days after the
court's determination unless doing so would jeopardize
the health or safety of the defendant or others.
While awaiting transport, the defendant shall receive
the custody, care and treatment necessary to ensure
the defendant's health and safety.

ORS § 161.370(3) (1999) (emphasis added).

In 1998, a state fire marshal and health care accreditation
organizations had cited OSH for overcrowding. The Oregon
legislature revised ORS § 161.370 temporarily to give OSH
an opportunity to address that problem. The legislature's decision
in 2001 to restore the statute to its pre-1999 version,
excising all references to periods of delay and conditions on
transfer to OSH, suggests that the legislature intended what
the statutory text now provides: courts are either to commit
incapacitated defendants to OSH (not to county jails) or
release them under supervision. The sunsetting of the old version
also can be understood as OSH urges, as a legislative signal
that there now is no time limit on OSH's taking custody
of incapacitated criminal defendants, so that county jails must
care for them in the interim. But the historical context of ORS
§ 161.370 by no means compels OSH's interpretation.
Because the historical context can be read either way, we
interpret the current text to mean what it says: the trial court
may either commit an incapacitated defendant to the custody
of OSH or may release such a defendant under supervision.
Under the first option, OSH has the correlative duty to accept
custody.

We therefore conclude that under Oregon law, it is not the
counties but OSH that has the duty to accept and treat incapacitated defendants once they have been certified as such by
a circuit court. Consequently, OSH's argument that OAC
lacks standing for want of a causal link between its injuries
and OSH's untimely acceptance of incapacitated defendants
must fail.

[3] In sum, OAC meets the constitutional requirements for
standing, and prudential requirements pose no obstacle. OAC
has standing to sue on behalf of its constituents - the mentally
incapacitated defendants.


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