608 June 17, 2026 No. 550
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of L. H.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
L. H.,
Appellant.
Multnomah County Circuit Court
25CC01711; A187115
Jane W. Fox, Judge.
Argued and submitted April 21, 2026.
Liza Langford argued the cause and filed the brief for
appellant.
Jose Garcia-Fuerte, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Dan
Rayfield, Attorney General, and Paul L. Smith, Interim
Solicitor General.
Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
SHORR, P. J.
Reversed.
Cite as 350 Or App 608 (2026) 609
610 State v. L. H.
SHORR, P. J.
Appellant appeals from a judgment committing her
to the Mental Health Division for a period not to exceed 180
days on the basis that she suffered from a mental disorder
and was unable to provide for basic personal needs and was
not receiving such care as is necessary for health or safety. In her first assignment, which is dispositive, she asserts that the trial court erred in not dismissing the case because the
citation issued by the court failed to provide her adequate
notice of the specific reason she was believed to be mentally ill.1 See ORS 426.090 (requiring the citation to “stat[e] the nature of the information filed concerning the person and
the specific reasons the person is believed to have a mental
illness and to be in need of treatment”).2 We reverse.
The relevant facts are undisputed. Appellant was
placed on an emergency hold at Adventist Medical Center on
March 22, 2025. The notification of mental illness directed
to the circuit court and the community mental health division states the signing doctor’s belief that the “condition,
behavior or actions exhibited by [appellant] that causes the
undersigned to believe that [appellant] is imminently dangerous to self or others is the following: patient presents
psychotic, making threats to staff, disorganized, delusional
and neglecting self.” The notice also states that the “specific indicators, symptoms or behaviors that support that [appellant] has a mental disorder and is in need of emergency care
or treatment for mental illness is the following: patient is at imminent risk of harm to self and others.”
The trial court initiated a civil commitment process
and cited appellant for a hearing. The citation states, in
part, that “[a]n investigation has been conducted pursuant
to ORS 426.070. Following the investigation, the Court concluded there is probable cause to believe you have a mental
disorder,” and after that statement there is a box marked
1
Based on our disposition of the first assignment of error, we need not reach the second assignment in which appellant contends that the state did not meet its burden of proof to show that appellant was unable to meet her basic needs and that the trial court erred in determining that she had a mental disorder on that basis.
2
ORS 426.090 was amended since the hearing. Or Laws 2025, ch 559, § 11. However, the amendment does not affect our analysis, and we refer to the current version of the statute.
Cite as 350 Or App 608 (2026) 611
with an “X” next to the phrase “[a]re a danger to others.”
Notably, the box next to the phrase “[a]re unable to care
for your basic needs” was left unchecked. The citation also
states that “[t]he nature of the information filed concerning you and the specific reasons you are believed to be mentally
ill are described in a copy of the Notice of Mental Illness
and the Pre-Commitment Report attached and incorporated
into this Citation.”
In regard to those two documents that were attached
and incorporated, the notice of mental illness, as explained
above, contained statements that appellant was “at imminent risk of harm to self and others” and was “neglecting
self.” The precommitment report contains recommendations
to the court. It was the investigator’s opinion that there was probable cause to believe that appellant had a mental disorder and that she was a danger to others. The investigator
also indicated that it was not his opinion that appellant was a danger to herself or that she was unable to provide for her basic personal needs.3
The trial court held a civil commitment hearing on
March 28, 2025. After considering the evidence presented
and questioning appellant, the medical examiner testified
that appellant’s “behavior is driven by * * * disorganized,
delusional, psychotic thinking. She is a danger to herself
because she’s unable to stay out of harm’s way and she has
no ability to meet her basic needs in her altered mental
state.” In closing argument, appellant argued that the state
had failed to prove by clear and convincing evidence that
appellant met the criteria for civil commitment. Appellant
also requested that the case be dismissed because the citation that was issued to appellant in advance of the hearing
did not comply with ORS 426.090 in that she was not notified that the state would be seeking commitment based on
danger to self or basic needs.
3
The investigator’s report appears to be a form that includes areas for text to be inserted, portions where there are boxes to check, and sections where there are yes and no answers to choose from. The “Recommendations to the Court” portion contains yes and no options for whether the person is a danger to self, danger to others, and unable to provide for basic needs. The investigator selected “no” for danger to self and for unable to provide for basic needs and selected “yes” for danger to others.
612 State v. L. H.
The trial court determined that appellant was
unable to meet her basic needs and also held that “the notice prior to the hearing was sufficient under current case law to give [appellant] an indication of why the hearing was set.”
The judgment committing appellant to the Mental Health
Division was entered that same day. Appellant timely
appealed.
As an initial matter, we note that our case law
regarding ORS 426.090 and adequate notice has developed
since the time of appellant’s civil commitment hearing and
after the opening and answering briefs were filed. The state
filed two memoranda of additional authorities prior to oral
argument of this appeal. We determine error based on the
law existing at the time the appeal is decided. State v. Jury, 185 Or App 132, 136, 57 P3d 970 (2002), rev den, 335 Or 504
(2003).
On appeal, appellant contends that the trial court
erred in not dismissing the case because the citation failed
to state the nature of the information filed concerning the
person and the specific reasons the person was believed to
be a person with mental illness as required by ORS 426.090,
which denied appellant due process. Appellant argues that
this case is identical to State v. T. L., 346 Or App 414, 585 P3d 636 (2026), a case in which we held that the citation
issued to the appellant did not provide adequate notice under ORS 426.090 when it “failed to notify [the] appellant that she was believed to be unable to provide for her basic personal
needs due to a mental disorder and was subject to commitment on that basis.” Id. at 422; see also State v. B. W. C.,
347 Or App 755, 758-60, 589 P3d 197 (2026) (applying T. L.
in an unpreserved posture).
The state recognizes that T. L. and B. W. C. are the
controlling law; however, the state argues that this case is
factually distinguishable from those cases. The state points
to factual allegations contained in the investigator’s report that, it contends, informed appellant that the inability to
care for her basic needs would be at issue at the hearing.
The report stated, in part, that appellant “has reportedly not been taking her medications, not eating, sleeping or showering and had started several fires in her unit as well as flooded Cite as 350 Or App 608 (2026) 613
it by stopping up the drains. The unit is now reportedly uninhabitable and the process has been started for her eviction.” The state argues that factual allegations of not taking medication, lack of food, and lack of shelter considered together all point to an inability to provide for basic personal needs. The state asserts that the citation with its incorporated
attachments was statutorily compliant in that it supplied
appellant with the “specific reasons” she was alleged to be
unable to meet her basic needs as required by ORS 426.090.
In the alternative, the state asserts that if the citation was statutorily deficient, appellant received the functional equivalent of the required “specific reasons.” That is, according
to the state, the record allows for the affirmative inference that appellant was aware that she might be committed on
the basis of being unable to meet her basic needs.
There is no dispute that “ORS 426.090 allows for a
citation that incorporated by reference an attached investigation report.” State v. V. L., 341 Or App 774, 778, 575 P3d
215 (2025). In T. L., we concluded that
“the citation provided insufficient notice because it failed to
adequately identify the theory on which [the] appellant was
believed to be a person with mental illness. As explained in
[State v. B. L. W., 335 Or App 639, 641, 560 P3d 766 (2024)],
a minimum requirement for adequate notice is that the
citation ‘reveal a theory of commitment—whether appellant was a danger to herself, a danger to others, or unable
to meet her basic needs’—so that the allegedly mental ill
person ‘know[s] what to expect at the hearing [and] how to
defend their liberty.’ ”
346 Or App at 420-21 (footnote omitted; first and second
brackets added). There, the citation incorporated the doctor’s notice, which included a narrative description of why he believed that the appellant was dangerous to herself or others. Id. at 421. That narrative included statements that the
appellant had not been drinking or eating for three days and
“was ‘unable to care for self at this time.’ ” Id. We were not persuaded that those two statements “were sufficient to put
[the] appellant on notice that she was believed to be unable
to provide for her basic personal needs within the meaning
of the civil commitment statutes” and that she needed to be
prepared for a basic-needs theory at the hearing. Id. Among
614 State v. L. H.
our stated reasoning was the fact that the statements by the
doctor had been made in the context of explaining why the
appellant was believed to be dangerous to self or others—“a
distinctly different theory of commitment.” Id. at 422.
We are faced with similar circumstances here.
Appellant was explicitly notified in the citation that the theory of commitment she was faced with was “danger to others”; explicitly notified in the notification of mental illness of the theories of “dangerous to self and others”; and explicitly notified in the investigator’s report of the theory of “danger to others.” The state would have us look beyond those explicit
statements to the additional content of the information contained in the documents served on appellant to discern the
specific reasons the state believed appellant to be unable to meet her basic needs. The notification of mental illness contained a statement that appellant was “neglecting self,” which was made in the explicit context of the doctor explaining why he believed appellant to be a danger to herself or others. And the investigator’s report, which contained an explicit opinion that appellant was a danger to others and was not a danger
to self or unable to provide for her basic needs, included the statement quoted above regarding appellant not taking her
medication; not eating, sleeping, or taking showers; and having an uninhabitable home that she was being evicted from.
Under the state’s argument, appellant would be
required to look past the explicit statements expressing the
court’s, the doctor’s, and the investigator’s expressed theories for proposed commitment to reach a different conclusion
herself—and in regard to the investigator’s report, appellant would be required to disregard the investigator’s opinion
that she was not unable to meet her basic needs and reach
the opposite conclusion. That argument is untenable. We
are not persuaded that the citation, with its attached and
incorporated documents, put appellant on notice that she
was believed to be unable to provide for her basic personal
needs due to a mental disorder, that she should be prepared
to meet that theory at the commitment hearing, and that she
was subject to commitment on that basis. Accordingly, we
conclude that the citation did not state the “specific reasons” Cite as 350 Or App 608 (2026) 615
that appellant was believed to be a person with mental illness under ORS 426.090.
We also reject the state’s argument that even if
the citation was deficient under ORS 426.090, appellant
received the functional equivalent of the specific reasons
she was alleged to be unable to meet her basic needs. We
have previously explained that “the state’s failure to comply with the statutory and constitutional notice requirement is
reversible error ‘unless the record allows for the affirmative inference that the appellant waived the procedural protection at issue or, alternatively, received a functionally equivalent protection in a different form.’ ” B. L. W., 335 Or App at 641 (quoting State v. T. C., 327 Or App 558, 563, 536 P3d
591 (2023), rev den, 371 Or 825 (2024)). For the same reasons expressed above, we conclude that appellant did not receive
the functionally equivalent protection from the information
in the attachments to the citation. Appellant was notified of specific theories for her potential commitment; she was entitled to rely on those express theories and was not required
to read between the lines and discern a different theory that she might face at the commitment hearing.
Because appellant was committed solely on the
basic-needs theory and did not receive the required advance
notice of that theory, we reverse.
Reversed.