Matter of Mills

585 P.2d 1143 (1978)

36 Or.App. 727

In the matter of Robert Edward Mills, an Allegedly Mentally Ill Person. State of Oregon, Respondent, v. ROBERT EDWARD MILLS, Appellant.

No. 14295; CA 10569.

Court of Appeals of Oregon.

Argued and Submitted July 18, 1978.

Decided October 30, 1978.

*1144 John R. Miller, Salem, argued the cause and filed the brief for appellant.

Melinda L. Bruce, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C.J., and LEE, RICHARDSON and JOSEPH, JJ.

RICHARDSON, Judge.

This is an appeal from an order of commitment finding appellant to be a mentally ill person, ORS 426.005. There are two assignments of error. First, appellant contends denial of his request for trial by jury violated his due process rights under the state and federal constitutions. Second, he contends a continuance of the hearing should have been granted pursuant to ORS 426.100(5). A recitation of the facts is unnecessary to resolve these issues.

Article I, section 17 of the Oregon Constitution provides: "In all civil cases the right of Trial by Jury shall remain inviolate." ORS chapter 426 does not grant to an allegedly mentally ill person the right to have a jury decide the issues of fact. In re Fehl, 159 Or. 545, 549, 81 P.2d 130 (1938); and In re Idleman's Commitment, 146 Or. 13, 28-30, 27 P.2d 305 (1934), held that a person, alleged to be insane, is not, as a matter of constitutional right, entitled to a trial by jury.

In Idleman the court said article I, section 17 of the Oregon Constitution "does not extend the right of trial by jury, nor render it universally available, but merely preserves it in all those classes of action in which it was available at the time the Constitution was adopted." 146 Or. at 28, 27 P.2d at 310. At the time our constitution was approved, civil commitment proceedings were tried before a judge without a jury. Sections 9 and 10 of the 1853 Statutes of Oregon, pages 362-63.[1] Hence, ORS chapter 426 does not conflict with article I, section 17 of the Oregon Constitution.[2]

Appellant further asserts that the refusal to grant him a jury trial violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Although the United States Supreme *1145 Court has not directly faced this issue,[3] the courts which have have rejected the contention. Ward v. Booth, 197 F.2d 963, 966, 33 A.L.R.2d 1134 (9th Cir.1952); Dorsey v. Solomon, 435 F. Supp. 725, 733 (D.Md. 1977); French v. Blackburn, 428 F. Supp. 1351, 1361 (M.D.N.C. 1977) (dicta); Suzuki v. Quisenberry, 411 F. Supp. 1113, 1129 (D.Haw. 1976); Doremus v. Farrell, 407 F. Supp. 509, 516 (D.Neb. 1975); Lynch v. Baxley, 386 F. Supp. 378, 394 (M.D.Ala. 1974) (dicta); United States v. Wolfe, 232 F. Supp. 85, 97 (S.D.N.Y. 1964); Williams v. Overholser, 162 F. Supp. 514, 517 (D.D.C. 1958); In re Jones, 339 So. 2d 1117, 1118 (Fla. 1976), cert. den., 430 U.S. 972, 97 S. Ct. 1661, 52 L. Ed. 2d 366 (1977); Ex parte Higgens v. Hoctor, 332 Mo. 1022, 62 S.W.2d 410, 413 (1933).[4] We conclude that a jury trial in this context is not a necessary element of fundamental fairness guaranteed by the due process clause. The procedural requirements of ORS 426.070 to 426.170 provide the necessary protection of the individual's due process rights. Further, a jury is not an essential component of accurate fact finding. McKeiver v. Pennsylvania, 403 U.S. 528, 547, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971).

Appellant's first contention fails.

ORS 426.100(5) allows the court to grant a continuance for good cause shown. Neither appellant nor his attorney made a motion for a continuance. It will not be considered for the first time on appeal.[5]Portland Machinery Co. v. Sistig, 283 Or. 249, 583 P.2d 536 (1978).

Affirmed.

[1] The Oregon Constitution was approved by a vote of the people of the Oregon Territory on November 9, 1857 and went into effect when Congress admitted Oregon into the Union February 14, 1859.

[2] In reaching a result in accord with the principle that a jury trial in a mental commitment proceeding is not mandated under their constitutions, the various states have adopted different approaches. For an inexhaustive catalogue see generally, Sharum v. Meriwether, 156 Ark. 331, 246 S.W. 501, 502 (1923); In re Jones, 339 So. 2d 1117, 1118 (Fla. 1976), cert. den. 430 U.S. 972, 97 S. Ct. 1661, 52 L. Ed. 2d 366 (1977); State ex rel. Boeldt v. Cr. C. Mar. Co., 236 Ind. 290, 139 N.E.2d 891, 893 (1957); In re Brewer, 224 Iowa 773, 276 N.W. 766, 768-69 (1937); People ex rel. Keith v. Keith, 38 Ill. 2d 405, 231 N.E.2d 387, 389 (1967); Matter of Easton, incompetent, 214 Md. 176, 133 A.2d 441, 450 (1957); State ex rel. Anderson v. U.S. Veterans Hospital, 268 Minn. 213, 128 N.W.2d 710, 716 (1964); In re Cook, 218 N.C. 384, 11 S.E.2d 142 (1940). For discussion of the theories see, annot. 91 A.L.R. 88 (1934); annot. 33 A.L.R.2d 1145 (1954).

At least 18 states have expressly provided by statute for jury hearings in these instances. Note, The Confinement of Mabel Jones: Is There a Right to Jury Trial in Civil Commitment Proceedings, 6 Fla.St.U.L.Rev. 103, 113 n. 60 (1978).

In a few states the provision for jury trials in lunacy hearings was granted before their constitutions were adopted and therefore a jury trial was held to be constitutionally required. See e.g., Application of Coates, 8 A.D.2d 444, 188 N.Y.S.2d 400, 404 (1959); Johnson v. Nelms, 171 Tenn. 54, 100 S.W.2d 648, 651 (1937); Loving v. Hazelwood, 184 S.W. 355, 356 (Tex.Civ.App. 1916). Other courts have arrived at the same result through diversified reasoning. In re McLaughlin, 87 N.J. Eq. 138, 102 A. 439 (1917); In re Quesnell, 83 Wash. 2d 224, 517 P.2d 568, 578-79 (1973).

[3] Involuntary commitment proceedings must comport with due process. See e.g., O'Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975). The procedural safeguards required of a commitment hearing were set out in Specht v. Patterson, 386 U.S. 605, 610, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967). ORS 426.070 to 426.170 guarantees these rights to alleged mentally ill persons in Oregon.

The Supreme Court has not, however, addressed the issue of whether a jury trial is mandated in these instances. In Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972), when faced with an equal protection argument that one committed under Wisconsin's sex offender statute should have the same procedural right to a jury granted under the state mental health act, the court stated that a jury could serve the important function of introducing lay judgment and community values into the proceeding but did not require a jury hearing as an element of due process. In a later case, Jackson v. Indiana, 406 U.S. 715, 722, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), the Court noted without comment that under Indiana's mental health law the hearings concerning ones alleged mental illness were conducted before a judge without a jury.

Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968), would not apply for a civil commitment is not a criminal contest under the 6th Amendment. Contrary to what is implied in Kirkpatrick, Oregon's New Mental Commitment Statute: The Expanded Responsibilities Of Courts and Counsel, 53 Or.L.Rev. 245, 246 (1974). This court's opinion in State v. Collman, 9 Or. App. 476, 497 P.2d 1233 (1972), does not stand for the general position that the 6th Amendment constitutional standards apply because the proceedings are of a criminal nature. The language in that case was derived from In Re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). Gault does not make juvenile proceedings "criminal" within the meaning and reach of the 6th Amendment id. at 24, 87 S. Ct. 1428. Also see McKeiver, infra 403 U.S. at 541, 91 S. Ct. 1976. The mental commitment proceedings were also labeled "civil" in Collman, 9 Or. App. at 482, 497 P.2d 1233.

A valid analogy can be drawn between a juvenile proceeding and a civil commitment based on the protective-rehabilitative concerns, and the relative informality of the hearing. The court in McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971), held that the due process clause of the constitution does not require a jury in juvenile proceedings. Id. at 545, 91 S. Ct. 1976. The court's rationale in McKeiver is applicable to civil commitment hearings. See, Developments in the Law-Civil Commitment Of The Mentally Ill, 87 Har.L.Rev. 1190, 1291-95 (1974).

[4] Such proceedings are not considered "suits at common law" and therefore no jury trial is mandated by the Seventh Amendment to the United States Constitution. Ward v. Booth, 197 F.2d 963, 966 (9th Cir.1952).

[5] Although appellant made reference to certain FBI records there was no motion or request for a continuance to allow him to produce them.