LANGTEY, J.
This is an appeal, according to the amended notice of appeal, from an “Order of mental commitment entered on September 14, 1971 # and from the Order denying appellant’s motion to set aside the Order of mental commitment * * The motion to set aside also sought to expunge the record.
The record shows that Patrick Collman, the defendant (we use the term “defendant” for convenience and because it was used in the briefs; OES ch 426 describes such a person as an “allegedly mentally ill
person”), was taken into custody by a police officer at approximately 2 p.m. on September 13, 1971, because, as the officer wrote in the Notice of Mental Illness:
“He is unable to understand what is happening around him. His answers are unrelated to the questions asked.”
Shortly thereafter, the officer removed defendant to Multnomah County Hospital crisis unit.
A citation
was served upon defendant the following morning informing him that a hearing would be held at 10 a.m. that day. The mental commitment hearing was held before the probate department of the Multnomah County Circuit Court. Two psychiatrists appointed to examine defendant made their written reports to the court. Each recommended commitment, one diagnosing “acute psychosis—probably drug induced,” and the other “schizophrenic reaction—possibly drug induced.” The court signed an order
find
ing defendant mentally ill and committing him to Dammasch State Hospital. Other than the order, no record was made of the proceedings at that time. Defendant was received at Dammasch State Hospital on September 14, 1971, and he was given final discharge on September 30,1971.
On October 1, 1971, represented by legal aid counsel, defendant filed with the circuit court the motion to set aside the commitment order and expunge the record. And on October 14,1971, he filed his notice of appeal from the order of commitment.
The circuit court held a hearing on defendant’s motion on October 14. The testimony (which was re
ported) at this hearing disclosed the following in addition to that set out above. Defendant was given three injections of a drug called Inapsine at the hospital crisis unit prior to the commitment hearing. The doctor in charge at the clinic diagnosed defendant as a paranoid schizophrenic and his condition was described as “agitated.” The last injection of Inapsine was at 2:30 a.m. Defendant contends the drug was administered without his consent and affected his ability to respond to questions at the hearing. When the commitment hearing started defendant was still physically obstreperous, causing the judge to conduct the hearing in a holding room of the courthouse to which defendant had been brought, rather than having the hearing in the courtroom. The two psychiatrists accompanied the judge. The evidence was that the court and one of the doctors informed defendant of his right to counsel, which advice defendant ignored. The only coherent thing witnesses remembered his saying was, “I want a doctor. I want help.”
The assignments of error are: (1) the failure of the court to have the commitment hearing reported violated due process of law; (2) the court failed to record a “full account” of the commitment hearing as required by QK.S 426.160; (3) defendant should have been advised of his constitutional right to a court-appointed counsel; (4) the court should have appointed counsel to represent defendant; (5) defendant was not provided an opportunity to cross-examine the psychiatrists; (6) the court erred in committing defendant without a finding that he was mentally ill beyond a reasonable doubt; (7) the hearing should have been in open court; and (8) the order to set aside the order and expunge the record should have been allowed.
THE BIGHT TO COUNSEL
OKS 426.100 provides:
“(1) At the time of the hearing before the court, prescribed by OKS 426.070 to 426.150, the court shall inform the allegedly mentally ill person that he has the right to legal counsel during the proceedings and that, at his request, or the request of his legal guardian, relative or friend, the court may postpone the hearing up to 72 hours in order to allow the allegedly mentally ill person an opportunity to obtain counsel, and subpena witnesses in his behalf to the hearing.
“(2)
If no request for legal counsel is made, the court may, at its discretion, appoint legal counsel.
“(3)
If the person is indigent, the court may provide by order for payment of a reasonable attorney fee by the county of residence of the allegedly mentally ill person.
In all cases such legal counsel shall be present at the hearing and examination and may examine all witnesses offering testimony, and otherwise represent such person.
“(4) Where legal counsel is requested or provided, the court may continue the hearing for up to 72 hours after counsel has been obtained by appointment or otherwise and may make such orders for the care and custody of the person during that period as it deems necessary.” (Emphasis supplied.)
This section appears to leave to the court’s discretion whether legal counsel should be appointed for an allegedly mentally ill person. Defendant argues that the Due Process Clause of the Fourteenth Amendment requires appointment of counsel.
The constitutional right to counsel in civil proceedings which may result in involuntary incarceration or deprivation of liberty was established in
In Re Gault,
387 US 1, 87 S Ct 1428, 18 L Ed 2d 527 (1967).
Relying on the reasoning of
Gault,
which involved a juvenile delinquency proceeding, the Tenth Circuit Court of Appeals held in
Heryford v. Parker,
396 F2d 393 (10th Cir 1968), that due process entitled an allegedly mentally deficient person to representation by counsel in a civil mental commitment proceeding.
“* * * It matters not whether the proceedings be labeled ‘civil’ or ‘criminal’ or whether the subject matter be mental instability or juvenile delinquency. It is the likelihood of involuntary incarceration— whether for punishment as an adult for a crime, rehabilitation as a juvenile for delinquency, or treatment and training as a feeble-minded or mental incompetent—which commands observance of the constitutional safeguards of due process * * * and this necessarily includes the duty to see that a subject of an involuntary commitment proceedings is afforded the opportunity to the guiding hand of legal counsel at every step of the proceedings, unless effectively waived by one authorized to act in his behalf. * * * Nor is it sufficient that the Wyoming statute permissively provides that the proposed patient ‘may be represented by counsel’ * * * ” 396 F2d at 396.
Accord: Dixon v. Attorney General of Commonwealth of Pa.,
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LANGTEY, J.
This is an appeal, according to the amended notice of appeal, from an “Order of mental commitment entered on September 14, 1971 # and from the Order denying appellant’s motion to set aside the Order of mental commitment * * The motion to set aside also sought to expunge the record.
The record shows that Patrick Collman, the defendant (we use the term “defendant” for convenience and because it was used in the briefs; OES ch 426 describes such a person as an “allegedly mentally ill
person”), was taken into custody by a police officer at approximately 2 p.m. on September 13, 1971, because, as the officer wrote in the Notice of Mental Illness:
“He is unable to understand what is happening around him. His answers are unrelated to the questions asked.”
Shortly thereafter, the officer removed defendant to Multnomah County Hospital crisis unit.
A citation
was served upon defendant the following morning informing him that a hearing would be held at 10 a.m. that day. The mental commitment hearing was held before the probate department of the Multnomah County Circuit Court. Two psychiatrists appointed to examine defendant made their written reports to the court. Each recommended commitment, one diagnosing “acute psychosis—probably drug induced,” and the other “schizophrenic reaction—possibly drug induced.” The court signed an order
find
ing defendant mentally ill and committing him to Dammasch State Hospital. Other than the order, no record was made of the proceedings at that time. Defendant was received at Dammasch State Hospital on September 14, 1971, and he was given final discharge on September 30,1971.
On October 1, 1971, represented by legal aid counsel, defendant filed with the circuit court the motion to set aside the commitment order and expunge the record. And on October 14,1971, he filed his notice of appeal from the order of commitment.
The circuit court held a hearing on defendant’s motion on October 14. The testimony (which was re
ported) at this hearing disclosed the following in addition to that set out above. Defendant was given three injections of a drug called Inapsine at the hospital crisis unit prior to the commitment hearing. The doctor in charge at the clinic diagnosed defendant as a paranoid schizophrenic and his condition was described as “agitated.” The last injection of Inapsine was at 2:30 a.m. Defendant contends the drug was administered without his consent and affected his ability to respond to questions at the hearing. When the commitment hearing started defendant was still physically obstreperous, causing the judge to conduct the hearing in a holding room of the courthouse to which defendant had been brought, rather than having the hearing in the courtroom. The two psychiatrists accompanied the judge. The evidence was that the court and one of the doctors informed defendant of his right to counsel, which advice defendant ignored. The only coherent thing witnesses remembered his saying was, “I want a doctor. I want help.”
The assignments of error are: (1) the failure of the court to have the commitment hearing reported violated due process of law; (2) the court failed to record a “full account” of the commitment hearing as required by QK.S 426.160; (3) defendant should have been advised of his constitutional right to a court-appointed counsel; (4) the court should have appointed counsel to represent defendant; (5) defendant was not provided an opportunity to cross-examine the psychiatrists; (6) the court erred in committing defendant without a finding that he was mentally ill beyond a reasonable doubt; (7) the hearing should have been in open court; and (8) the order to set aside the order and expunge the record should have been allowed.
THE BIGHT TO COUNSEL
OKS 426.100 provides:
“(1) At the time of the hearing before the court, prescribed by OKS 426.070 to 426.150, the court shall inform the allegedly mentally ill person that he has the right to legal counsel during the proceedings and that, at his request, or the request of his legal guardian, relative or friend, the court may postpone the hearing up to 72 hours in order to allow the allegedly mentally ill person an opportunity to obtain counsel, and subpena witnesses in his behalf to the hearing.
“(2)
If no request for legal counsel is made, the court may, at its discretion, appoint legal counsel.
“(3)
If the person is indigent, the court may provide by order for payment of a reasonable attorney fee by the county of residence of the allegedly mentally ill person.
In all cases such legal counsel shall be present at the hearing and examination and may examine all witnesses offering testimony, and otherwise represent such person.
“(4) Where legal counsel is requested or provided, the court may continue the hearing for up to 72 hours after counsel has been obtained by appointment or otherwise and may make such orders for the care and custody of the person during that period as it deems necessary.” (Emphasis supplied.)
This section appears to leave to the court’s discretion whether legal counsel should be appointed for an allegedly mentally ill person. Defendant argues that the Due Process Clause of the Fourteenth Amendment requires appointment of counsel.
The constitutional right to counsel in civil proceedings which may result in involuntary incarceration or deprivation of liberty was established in
In Re Gault,
387 US 1, 87 S Ct 1428, 18 L Ed 2d 527 (1967).
Relying on the reasoning of
Gault,
which involved a juvenile delinquency proceeding, the Tenth Circuit Court of Appeals held in
Heryford v. Parker,
396 F2d 393 (10th Cir 1968), that due process entitled an allegedly mentally deficient person to representation by counsel in a civil mental commitment proceeding.
“* * * It matters not whether the proceedings be labeled ‘civil’ or ‘criminal’ or whether the subject matter be mental instability or juvenile delinquency. It is the likelihood of involuntary incarceration— whether for punishment as an adult for a crime, rehabilitation as a juvenile for delinquency, or treatment and training as a feeble-minded or mental incompetent—which commands observance of the constitutional safeguards of due process * * * and this necessarily includes the duty to see that a subject of an involuntary commitment proceedings is afforded the opportunity to the guiding hand of legal counsel at every step of the proceedings, unless effectively waived by one authorized to act in his behalf. * * * Nor is it sufficient that the Wyoming statute permissively provides that the proposed patient ‘may be represented by counsel’ * * * ” 396 F2d at 396.
Accord: Dixon v. Attorney General of Commonwealth of Pa.,
325 F Supp 966 (MD Pa 1971);
People v. Potter,
85 Ill App2d 151, 228 NE2d 238 (1967);
People ex rel. Rogers v. Stanley,
17 NY2d 256, 270 NYS2d 573, 217 NE2d 636 (1966);
Denton v. Commonwealth,
383 SW2d 681 (Ky 1964);
Dooling v. Overholser,
243 F2d 825 (DC Cir 1957).
See A Draft Act Governing Hospitalisation of the Mentally III,
Public Health Service Publication No. 51, § 9 (1952).
See also State v. Turner,
253 Or 235, 238, 453 P2d 910 (1969).
Inasmuch as an order of commitment under ORS 426.070-426.390 results in the deprivation of liberty for
an indeterminate period of time, we hold that Fourteenth Amendment due process entitles an allegedly mentally ill person to representation by counsel; that he, or one acting in his behalf, must be fully advised of his right to counsel; and that this right be accorded unless intelligently and understandingly waived.
Carnley v. Cochran,
369 US 506, 82 S Ct 884, 8 L Ed 2d 70 (1962).
Defendant was not advised of his right to
court-appointed
counsel and thus could not make an effective waiver.
Carnley v. Cochran,
supra;
Schram v. Cupp,
436 F2d 692, 695 (9th Cir 1970);
State v. Jamison,
251 Or 114, 444 P2d 15, 444 P2d 1005 (1968). Moreover, defendant’s mental condition as described at the October 14 hearing precluded the possibility of an effective waiver even if he had been properly advised of his rights.
Therefore, we reverse the order of commitment.
REPORTING OF THE COMMITMENT PROCEEDING
Defendant argues in respect to the record in the case at bar (1) that the trial court erred in failing to record a “full account” of the proceedings as required by statute, and (2) that due process requires that commitment proceedings be reported to insure an effective appeal. We first consider defendant’s statutory argument.
OES 426.160 provides:
“The judge shall cause to be recorded in the court records a full account of proceedings had at the hearing and examination, together with the judgment and order of the court and a copy of the orders issued.
The account of the proceedings and transcripts of testimony if taken thereat shall be delivered to the county clerk who shall cause it to be sealed and neither the account of the proceedings nor the transcript of testimony if taken shall be disclosed to any person except:
“(1) As provided in OES 426.170;
“(2) TJpon request of the person subject to the proceedings, his legal representatives, or his attorney ; or
“(3) Pursuant to court order.” (Emphasis supplied.)
This section has not previously been judicially construed to determine what manner of recording is required.
The language of the statute speaks of a “full account” of proceedings at the mental commitment hearing, as opposed to a “report” of proceedings. The distinction is evident from a perusal of OES 8.340 which provides, in pertinent part:
“(2)
Upon the trial of any cause, the judge
upon his own motion may, and upon the request of either party
shall, order a report of the proceedings,
in which case
the reporter shall,
in the manner provided in subsection (3) of this section,
make a report of the oral testimony and other proceedings
of the trial to the extent required by the court or by the requesting party.
“(3) When a report is required, the reporter shall:
“(a) Take accurate notes by shorthand or by means of a mechanical typing device using paper tapes; or
“(b) If the judge in his discretion so authorizes, make audio records under such rules as the Supreme Court may prescribe.
“* * * * (Emphasis supplied.)
Thus, the legislature’s use of the term “full account” indicates that it did not intend to require “reporting” (stenographic or otherwise) of all proceedings. However, in relation to oral testimony, OES 426.160 appears to require reporting:
“* * * The account of the proceedings
and transcripts of testimony if taken thereat
shall be delivered to the county clerk * *
A reasonable implication of the italicized phrase is that if testimony is taken at the hearing it must be reported so as to make available a transcript.
Summarizing, then, a “full account” of the proceedings
seems to include reporting (stenographic or otherwise) of oral testimony if taken, but not reporting of proceedings other than oral testimony. Defendant makes a persuasive argument for this court to so construe this statute; that is, a transcript of testimony may be necessary to assure a committed person an effective appeal.
The United States Supreme Court has not specifically held that a transcript (that is, complete reporting of all proceedings) is a due process necessity for appellate review.
Instead, the recurring reference
has been to a transcript or an “adequate alternative” thereof, i.e., one which would assure “adequate and effective appellate review.”
State and federal court decisions passing directly on this question have adopted this standard.
The “full account” of proceedings provision of
OES 426.160 on its face would seem to square with this standard without necessitating a transcript (reporting) of proceedings or oral testimony. For example, as suggested in
Commonwealth v. Anderson,
441 Pa 483, 272 A2d 877 (1971), the court may provide an alternative to such reporting
e * py -writing out the questions alleged to be objectionable, the objection entered, the answer of the witness, the court’s ruling thereon ® ® 441 Pa at 493,
supplemented by a narrative statement of the proceedings as is contemplated by OES 19.088. But this and other alternatives to reporting would appear impracticable in cases where there is extensive testimony, cross-examination or other complicating factors, particularly in light of the “adequate alternative” standard.
See
Note, 78 Harv L Rev 143, 266 (1964).
We hold that unless effectively waived, the court must have all proceedings (including testimony) reported or utilize other methods which will preserve a record of the proceedings so as to assure an adequate and effective appeal.
In the case at bar the court’s order of commitment, the only contemporaneous record of the commitment proceedings, does not satisfy this standard. Nor does the “Opinion of the Court,”
which was based on the transcript of testimony taken from the hearing on the motion to set aside, meet this standard, although it enlarges the account of the commitment proceedings of September 14, 1971. An account based solely on the recall of witnesses as to testimony and occurrences a month before, and which comes about
only at the instance of the petitioning party, cannot be deemed a substitute for a contemporaneous court-ordered account of the proceedings.
The record does not reflect whether defendant attempted to cross-examine the two psychiatrists at the commitment hearing. His mental or physical condition may have prevented him from doing so. In any event, such a right is provided by OES 426.100(3) and our holding on “right to counsel” obviates the need to consider defendant’s contentions under this assignment of error.
Because defendant was not represented by counsel at the commitment hearing and did not or was unable to exercise his right to present Avitnesses and cross-examine opposing witnesses, we cannot properly decide the merits of the commitment order on the record before us. We, therefore, decline to pass on the question of what the burden of proof is to commit a person under this section of OES ch 426 until that question is squarely before us.
The statutes pertaining to mental commitment proceedings do not specify whether the hearings are to be private or public, as is done for proceedings to determine whether a person is sexually dangerous. See OES 426.630 (private hearing unless otherwise demanded by patient). Civil actions, generally, must be public unless the parties agree otherAvise. OES 1.040. Nothing in the record indicates the court excluded the public from defendant’s hearing. The law does not specify
where
in the courthouse the court must hold a hearing, see OES 1.090, and the court did conduct defendant’s hearing in the
courthouse
holding room. Moreover, when a defendant in a mental commitment proceeding is accorded all the rights to which
he is entitled we see no reason why, if, as in the case at bar, his conduct does not comport with orderly courtroom procedure, the court may not hold the hearing elsewhere than in the courtroom.
Defendant contends the trial court erred in denying his motion to set aside and expunge the order of commitment. We do not decide whether such a motion is proper as neither party has briefed the issue.
In any event, the only additional issue which the appeal from the denial of this motion raises—i.e., whether the record should be expunged upon reversal —may also be considered as arising under defendant’s direct appeal from the order of commitment.
The term “expunge” is defined in Black’s Law Dictionary 693 (4th ed 1951), as
“* * * to destroy or obliterate; it implies not a legal act, but a physical annihilation * *
In
First Nat. Bank of Portland v. Wall,
161 Or 152, 88 P2d 311 (1939), plaintiff, who had been adjudged insane and committed, brought a suit against the person who had initiated the insanity proceedings to have the commitment order declared void and the record expunged. Pertinent to the issue before us, the court stated:
“Plaintiff had his remedy in an appeal from the order of commitment, but he certainly had no cause of suit against the defendant. If he desired the record expunged, application should have been made in the first instance to the court which entered it. It must be obvious that this defendant has no power to expunge the record. No relief is asked against her which can be enforced in this suit. Hence there was a fatal defect of parties.” 161 Or at 157.
This reference to expungement apparently led defendant in the instant case to make the motion to the circuit court. This language is dictum and decisions from other jurisdictions lead us to believe the law is otherwise.
A similar application to expunge was before the New York Supreme Court in
Application of Brandon,
284 App Div 957, 131 NYS2d 204 (1954). The court responded:
“Assuming the court erred in making its finding and adjudication that applicant was a mentally ill person and required treatment as such in the designated institution, and assuming an appropriate tribunal reversed such finding and adjudication, even so it would not authorize the same being expunged from the record. Reversal results in correction, and not in expungement of the erroneous finding and adjudication.
“Void judgments or erroneous findings and
decisions may be vacated and set aside, bnt all this is correction. Expunge means to destroy or obliterate. ‘It implies not a legal act, bnt a physical annihilation.’ See Andrews v. Police Court of City of Stockton, Cal.App., 123 P.2d 128, 129.
“The finding and adjudication of the court were the equivalent of a decision and judgment. They may be reversed and set aside or vacated so as to destroy their legal effect, but may not be physically destroyed or obliterated perforce they are found to be erroneous in fact or in law or both.” 131 NYS2d at 206-207.
And in
Statman v. Kelly,
47 Misc2d 294, 262 NYS2d 799 (Sup Ct 1965), a declaratory judgment action to expunge records of arrest after all criminal charges had been dropped, the court stated:
“* * * ‘* * * [n]o right to have it expunged exists unless such a right is conferred by statute * # *.’ It is immaterial that no statute does not prohibit obliteration of official records; orderly government requires that official records shall be maintained unless the law provides otherwise * * 262 NYS2d at 802.
In this state the legislature has recognized at least one instance in which court records may be destroyed.
Mental commitment records have not been so recognized.
The trial court properly denied the order to expunge.
Affirmed in part; reversed in part.