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State of Oregon v. Z.A.B.
Date: 08-13-2014
Case Number: A156148
Judge: Per Curiam
Court: Oregon Court of Appeals on appeal from the Circuit Court, Deschutes County
Plaintiff's Attorney: Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael
R. Salvas, Assistant Attorney General, filed the brief for respondent.
Defendant's Attorney: Garrett A. Richardson and Multnomah Defenders, Inc., filed the brief for appellant.
Description:
2 Appellant seeks reversal of a judgment committing him for a period not to
3 exceed 180 days pursuant to ORS 426.130. Appellant argues, among other contentions,
4 that the trial court plainly erred by failing to advise him of the right to subpoena
5 witnesses under ORS 426.100(1)(d). See State v. M. L. R., 256 Or App 566, 570-71, 303
6 P3d 954 (2013) (failure to inform a person of the right to subpoena witnesses constitutes
7 plain error warranting reversal); State v. Grellert, 144 Or App 201, 203, 925 P2d 161
8 (1996) (trial court erred when it advised the appellant that it would "hear" the allegedly
9 mentally ill person's witnesses, but did not advise the person of the right to "subpoena"
10 witnesses). Appellant acknowledges that the trial court told him that he had "the right to
11 call [his] own witnesses," but asserts that that statement did not inform him that he had
12 the right to compulsory process. The state concedes that, under our case law, the trial
13 court "committed plain error by failing to precisely advise appellant of that right" to
14 subpoena witnesses. We accept the state's concession that the failure to advise appellant
15 of the right to subpoena witnesses constitutes plain error and, for the reasons set forth in
16 M. L. R., exercise our discretion to correct the error. See also State v. V. B., ___ Or App
17 ___, ___, ___ P3d ___ (Aug 13, 2014) (slip op at 3-4) (rejecting the state's argument that
18 failure to advise the appellant of her right to subpoena witnesses was harmless because
19 she was represented by counsel, and exercising discretion to correct the trial court's plain
20 error).
21 Reversed.
2
State v. Z. A. B., (A156148)
Per Curiam, majority
1 LAGESEN, P. J., concurring.
2 I concur in the disposition of this appeal on the ground that our precedent
3 dictates the result that we reach. I write separately for two reasons: (1) to clarify the
4 nature of the trial court's error in this case, so that similar errors can be avoided in the
5 future; and (2) to ensure that our dispositions in this case and those similar to it do not
6 inadvertently result in allegedly mentally ill persons receiving less helpful information
7 about their rights than that provided by the trial court in this instance.
8 As noted, the trial court told appellant, "[Y]ou have the right to call your
9 own witnesses." As I understand our precedent, we have deemed that advice inadequate
10 under ORS 426.100(1)(d) because it does not convey the scope of the subpoena power.
11 That is, advice that a person can "call" witnesses does not convey the right to have the
12 court order the attendance and testimony of material witnesses. For that reason, we have
13 concluded (and the state often has conceded) that that advice, or advice similar to it, does
14 not satisfy ORS 426.100(1)(d). See State v. Grellert, 144 Or App 201, 203, 925 P2d 161
15 (1996); Respondent's Answering Brief at 2-3, State v. B. H., 264 Or App 186, ___P3d___
16 (2014) (No. CA A 155874) (conceding that advice that person could "call" witnesses did
17 not inform person of right to subpoena witnesses); B. H., 264 Or App at 187 (accepting
18 concession); Respondent's Answering Brief at 2, State v. T. N., 262 Or App 499, 323 P3d
19 997 (2014) (No. CA A 155433) (conceding that advice that person had right to have
20 witnesses "testify" did not inform person of right to subpoena witnesses); T. N., 262 Or
3
1 App at 500 (accepting concession).
2 That brings me to my second point. I question the extent to which the word
3 "subpoena" conveys useful information to persons without legal training. I also have
4 little doubt that the trial court here employed the word "call" instead of "subpoena" in
5 order to convey appellant's rights to him in an understandable form. Indeed, in
6 explaining the civil commitment process, the guidebook on mental health law prepared
7 by Disability Rights Oregon states, "You can testify, and have the right to call witnesses,"
8 without using the word "subpoena." Disability Rights Oregon, Mental Health Law in
Oregon 27 (4th ed 2012).1 9 That suggests to me that the word "subpoena" may not be one
10 that is easily understood by laypersons and thus, as a practical matter, may not provide
11 particularly useful information to allegedly mentally ill persons regarding their rights
12 with respect to presenting witnesses.
13 Our cases certainly permit a trial court to satisfy the requirements of ORS
14 426.100(1)(d) by employing the statutory wording to advise an allegedly mentally ill
15 person of the procedural rights to which he or she is entitled, including the word
16 "subpoena." However, I do not understand our precedent or ORS 426.100(1)(d) to
17 preclude a trial court from using words other than "subpoena" to communicate the right
18 to compulsory process. Instead, what is required is a statement that informs the allegedly
19 mentally ill person of the right to present witnesses, and to secure witnesses' attendance
1 Available at http://www.droregon.org/resources/5-publications-1/mentalhealth/
mental-health-law-in-oregon-english (last visited August 7, 2014).
4
1 and testimony through court order. Our decision in this case should not deter trial courts
2 from explaining a person's right to subpoena witnesses in understandable terms.
3 I concur.
4
3 exceed 180 days pursuant to ORS 426.130. Appellant argues, among other contentions,
4 that the trial court plainly erred by failing to advise him of the right to subpoena
5 witnesses under ORS 426.100(1)(d). See State v. M. L. R., 256 Or App 566, 570-71, 303
6 P3d 954 (2013) (failure to inform a person of the right to subpoena witnesses constitutes
7 plain error warranting reversal); State v. Grellert, 144 Or App 201, 203, 925 P2d 161
8 (1996) (trial court erred when it advised the appellant that it would "hear" the allegedly
9 mentally ill person's witnesses, but did not advise the person of the right to "subpoena"
10 witnesses). Appellant acknowledges that the trial court told him that he had "the right to
11 call [his] own witnesses," but asserts that that statement did not inform him that he had
12 the right to compulsory process. The state concedes that, under our case law, the trial
13 court "committed plain error by failing to precisely advise appellant of that right" to
14 subpoena witnesses. We accept the state's concession that the failure to advise appellant
15 of the right to subpoena witnesses constitutes plain error and, for the reasons set forth in
16 M. L. R., exercise our discretion to correct the error. See also State v. V. B., ___ Or App
17 ___, ___, ___ P3d ___ (Aug 13, 2014) (slip op at 3-4) (rejecting the state's argument that
18 failure to advise the appellant of her right to subpoena witnesses was harmless because
19 she was represented by counsel, and exercising discretion to correct the trial court's plain
20 error).
21 Reversed.
2
State v. Z. A. B., (A156148)
Per Curiam, majority
1 LAGESEN, P. J., concurring.
2 I concur in the disposition of this appeal on the ground that our precedent
3 dictates the result that we reach. I write separately for two reasons: (1) to clarify the
4 nature of the trial court's error in this case, so that similar errors can be avoided in the
5 future; and (2) to ensure that our dispositions in this case and those similar to it do not
6 inadvertently result in allegedly mentally ill persons receiving less helpful information
7 about their rights than that provided by the trial court in this instance.
8 As noted, the trial court told appellant, "[Y]ou have the right to call your
9 own witnesses." As I understand our precedent, we have deemed that advice inadequate
10 under ORS 426.100(1)(d) because it does not convey the scope of the subpoena power.
11 That is, advice that a person can "call" witnesses does not convey the right to have the
12 court order the attendance and testimony of material witnesses. For that reason, we have
13 concluded (and the state often has conceded) that that advice, or advice similar to it, does
14 not satisfy ORS 426.100(1)(d). See State v. Grellert, 144 Or App 201, 203, 925 P2d 161
15 (1996); Respondent's Answering Brief at 2-3, State v. B. H., 264 Or App 186, ___P3d___
16 (2014) (No. CA A 155874) (conceding that advice that person could "call" witnesses did
17 not inform person of right to subpoena witnesses); B. H., 264 Or App at 187 (accepting
18 concession); Respondent's Answering Brief at 2, State v. T. N., 262 Or App 499, 323 P3d
19 997 (2014) (No. CA A 155433) (conceding that advice that person had right to have
20 witnesses "testify" did not inform person of right to subpoena witnesses); T. N., 262 Or
3
1 App at 500 (accepting concession).
2 That brings me to my second point. I question the extent to which the word
3 "subpoena" conveys useful information to persons without legal training. I also have
4 little doubt that the trial court here employed the word "call" instead of "subpoena" in
5 order to convey appellant's rights to him in an understandable form. Indeed, in
6 explaining the civil commitment process, the guidebook on mental health law prepared
7 by Disability Rights Oregon states, "You can testify, and have the right to call witnesses,"
8 without using the word "subpoena." Disability Rights Oregon, Mental Health Law in
Oregon 27 (4th ed 2012).1 9 That suggests to me that the word "subpoena" may not be one
10 that is easily understood by laypersons and thus, as a practical matter, may not provide
11 particularly useful information to allegedly mentally ill persons regarding their rights
12 with respect to presenting witnesses.
13 Our cases certainly permit a trial court to satisfy the requirements of ORS
14 426.100(1)(d) by employing the statutory wording to advise an allegedly mentally ill
15 person of the procedural rights to which he or she is entitled, including the word
16 "subpoena." However, I do not understand our precedent or ORS 426.100(1)(d) to
17 preclude a trial court from using words other than "subpoena" to communicate the right
18 to compulsory process. Instead, what is required is a statement that informs the allegedly
19 mentally ill person of the right to present witnesses, and to secure witnesses' attendance
1 Available at http://www.droregon.org/resources/5-publications-1/mentalhealth/
mental-health-law-in-oregon-english (last visited August 7, 2014).
4
1 and testimony through court order. Our decision in this case should not deter trial courts
2 from explaining a person's right to subpoena witnesses in understandable terms.
3 I concur.
4
Outcome:
Reversed
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of State of Oregon v. Z.A.B.?
The outcome was: Reversed
Which court heard State of Oregon v. Z.A.B.?
This case was heard in Oregon Court of Appeals on appeal from the Circuit Court, Deschutes County, OR. The presiding judge was Per Curiam.
Who were the attorneys in State of Oregon v. Z.A.B.?
Plaintiff's attorney: Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael R. Salvas, Assistant Attorney General, filed the brief for respondent.. Defendant's attorney: Garrett A. Richardson and Multnomah Defenders, Inc., filed the brief for appellant..
When was State of Oregon v. Z.A.B. decided?
This case was decided on August 13, 2014.