77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 893

                           A-Engrossed

                         Senate Bill 421
                 Ordered by the Senate April 30
           Including Senate Amendments dated April 30

Sponsored by Senator PROZANSKI (at the request of Kristie
  Kilcullen and John Kilcullen) (Presession filed.)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.

  Authorizes district attorney to initiate commitment proceeding
when person   { - charged with certain crimes lacks capacity to
stand trial and - }  { +  with mental disorder has committed
certain violent or sexual acts and + } is { +  extremely + }
dangerous and in need of commitment. Authorizes court to
 { - establish commitment period of up to five years - }  { +
commit person to jurisdiction of Psychiatric Security Review
Board + }. { +  Requires board to hold hearing six months after
commitment, and thereafter every 24 months, to determine status
of commitment. Authorizes treatment facility to request hearing
to determine status of commitment. Provides for representation of
person by counsel at commitment and status hearings. Provides for
conditional release of person under certain circumstances.
Specifies when person may be discharged from jurisdiction of
board. + }
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to civil commitments; creating new provisions; amending
  ORS 426.100, 426.160 and 426.250; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Section 2 of this 2013 Act is added to and made
a part of ORS chapter 426. + }  { +  + }
  SECTION 2.  { + (1) As used in this section, 'extremely
dangerous' means that a person:
  (a) Is exhibiting symptoms or behaviors substantially similar
to those that preceded an act described in subsection (3)(b) of
this section;
  (b) Presents a serious danger to the safety of other persons by
reason of an extreme risk that the person will inflict grave or
potentially lethal physical injury on other persons; and
  (c) Unless committed, will continue to represent an extreme
risk to the safety of other persons in the foreseeable future.
  (2) A district attorney may petition the court to initiate
commitment proceedings described in this section if there is
reason to believe a person is an extremely dangerous mentally ill
person.
  (3) Upon receipt of a petition filed under subsection (2) of
this section, the court shall hold a hearing. After the hearing,
the court shall order the person committed as an extremely
dangerous mentally ill person under the jurisdiction of the
Psychiatric Security Review Board if the court finds, by clear
and convincing evidence, that:
  (a) The person suffers from a mental disorder;
  (b) The person committed one of the following acts while
suffering from the mental disorder:
  (A) Caused the death of another person;
  (B) Caused serious physical injury to another person by means
of a dangerous weapon;
  (C) Caused physical injury to another person by means of a
firearm as defined in ORS 166.210 or an explosive as defined in
ORS 164.055;
  (D) Engaged in oral-genital contact with a child under 14 years
of age;
  (E) Forcibly compelled sexual intercourse, oral-genital contact
or the penetration of another person's anus or vagina; or
  (F) Caused a fire or explosion that damaged the protected
property of another, as those terms are defined in ORS 164.305,
or placed another person in danger of physical injury, and the
fire or explosion was not the incidental result of normal and
usual daily activities; and
  (c) The person is extremely dangerous.
  (4) The findings of the court that a person committed an act
described in subsection (3)(b) of this section may not be
admitted in a criminal prosecution.
  (5)(a) A person committed under subsection (3) of this section
shall be committed to a state hospital or, if the person is under
18 years of age, to a secure intensive community inpatient
facility for custody, care and treatment.
  (b) The person shall remain committed in a state hospital or
facility unless the board conducts a hearing and makes the
findings described in subsection (6)(b) of this section.
  (c) The person shall remain under the jurisdiction of the board
unless the board conducts a hearing and makes the findings
described in subsection (6)(c) of this section.
  (6) The board shall hold a hearing six months after the
commitment described in subsection (3) of this section, and
thereafter every 24 months, to determine the status of the
person's commitment under the jurisdiction of the board.
  (a) If the board determines at the hearing that the person
still suffers from a mental disorder and is still extremely
dangerous, the person shall remain committed to a state hospital
or, if the person is under 18 years of age, to a secure intensive
community inpatient facility.
  (b) If the board determines at the hearing that the person
still suffers from a mental disorder and continues to be a danger
to others, but is not extremely dangerous, and that the person
can be controlled with proper care, medication, supervision and
treatment if conditionally released, the board shall
conditionally release the person.
  (c) If the board determines at the hearing that the person no
longer suffers from a mental disorder or, if so affected, no
longer presents a danger to others that requires treatment, the
board shall discharge the person.
  (7)(a) At any time during the commitment to a state hospital or
secure intensive community inpatient facility, the superintendent
of the state hospital or the director of the secure intensive
community in-patient facility may request a hearing described in
subsection (6) of this section to determine the status of the
person's commitment under the jurisdiction of the board.
  (b) If the person had unadjudicated criminal charges at the
time of the person's initial commitment, the superintendent or

director shall notify the district attorney who initiated the
charges of the request for the hearing.
  (8)(a) If the board orders conditional release of a person
under subsection (6)(b) of this section, the board shall order
conditions of release that may include a requirement to report to
any state or local mental health facility for evaluation and
cooperation with and acceptance of psychiatric or psychological
treatment from the facility. Conditions of release may be
modified by the board from time to time.
  (b) If at any time while the person is conditionally released
it appears that the person has violated the terms of the
conditional release or that the mental health of the person has
changed, the board may order the person returned for evaluation
or treatment to a state hospital or, if the person is under 18
years of age, to a secure intensive community inpatient facility.
  (c) Within 30 days following the return of the person to a
state hospital or secure intensive community inpatient facility,
the board shall conduct a hearing as described in subsection (6)
of this section to determine the status of the person's
commitment under the jurisdiction of the board.
  (d) At any time during conditional release, the state or local
mental health facility providing treatment to the person may
request a hearing as described in subsection (6) of this section
to determine the status of the person's commitment under the
jurisdiction of the board. If the person had unadjudicated
criminal charges at the time of the person's initial commitment,
the director of the facility shall notify the district attorney
that initiated the charges of the request for the hearing.
  (9)(a) If the board discharges a person under subsection (6)(c)
of this section and the person had unadjudicated criminal charges
at the time of the person's initial commitment:
  (A) The board shall notify the district attorney that initiated
the charges of the discharge; and
  (B) The district attorney may request an evaluation to
determine if the person is fit to proceed with the criminal
proceeding.
  (b) The person may not waive an evaluation to determine if the
person is fit to proceed with the criminal proceeding described
in paragraph (a)(B) of this subsection. + }
  SECTION 3. ORS 426.100 is amended to read:
  426.100. (1) At the time the allegedly mentally ill person is
brought before the court, the court shall advise the person of
the following:
  (a) The reason for being brought before the court;
  (b) The nature of the proceedings;
  (c) The possible results of the proceedings;
  (d) The right to subpoena witnesses; and
  (e) The person's rights regarding representation by or
appointment of counsel.
  (2) Subsection (3) of this section establishes the rights of
allegedly mentally ill persons { +  and allegedly extremely
dangerous mentally ill persons + } in each of the following
circumstances:
  (a) When the person is held by warrant of detention issued
under ORS 426.070.
  (b) In commitment hearings under ORS 426.095.
  (c) When the person is detained as provided under ORS 426.228,
426.232 or 426.233.
  (d) In recommitment hearings under ORS 426.307.
   { +  (e) In commitment hearings, hearings for conditional
release and discharge hearings under section 2 of this 2013
Act. + }
  (3) When provided under subsection (2) of this section,
 { - an allegedly mentally ill - }   { + a + } person has the
following rights relating to representation by or appointment of
counsel:
  (a) The right to obtain suitable legal counsel possessing
skills and experience commensurate with the nature of the
allegations and complexity of the case during the proceedings.
  (b) If the person is determined to be financially eligible for
appointed counsel at state expense, the court will appoint legal
counsel to represent the person. If a person is appointed counsel
at state expense, payment of expenses and compensation relating
to legal counsel shall be made as provided under ORS 426.250.
  (c) If the   { - allegedly mentally ill - }  person does not
request legal counsel, the legal guardian, relative or friend may
request the assistance of suitable legal counsel on behalf of the
person.
  (d) If no request for legal counsel is made, the court shall
appoint suitable legal counsel unless counsel is expressly,
knowingly and intelligently refused by the person.
  (e) If the person is being involuntarily detained before a
hearing on the issue of commitment, the right under paragraph (a)
of this subsection to contact an attorney or under paragraph (b)
of this subsection to have an attorney appointed may be exercised
as soon as reasonably possible.
  (f) In all cases suitable legal counsel shall be present at the
hearing and may be present at examination and may examine all
witnesses offering testimony, and otherwise represent the person.
  (4) The responsibility for representing the state's interest in
commitment proceedings, including, but not limited to,
preparation of the state's case and appearances at commitment
hearings is as follows:
  (a) The Attorney General's office shall have the responsibility
relating to proceedings initiated by state hospital staff that
are any of the following:
  (A) Recommitment proceedings under ORS 426.307; or
  (B) Proceedings under ORS 426.228, 426.232 or 426.233.
  (b) The district attorney if requested to do so by the
governing body of the county.
  (c) In lieu of the district attorney under paragraph (b) of
this subsection, a counsel designated by the governing body of a
county shall take the responsibility. A county governing body may
designate counsel to take responsibility under this paragraph
either for single proceedings or for all such proceedings the
county will be obligated to pay for under ORS 426.250. If a
county governing body elects to proceed under this paragraph, the
county governing body shall so notify the district attorney. The
expenses of an attorney appointed under this paragraph shall be
paid as provided under ORS 426.250.
  SECTION 4. ORS 426.160 is amended to read:
  426.160. (1) The court having jurisdiction over any proceeding
conducted pursuant to ORS 426.005, 426.060 to 426.170, 426.217,
426.228, 426.255 to 426.292, 426.300 to 426.309, 426.385 and
426.395 { + , or the Psychiatric Security Review Board, the
superintendent of the state hospital or the director of the
secure intensive community inpatient facility having jurisdiction
over or custody of a person committed pursuant to section 2 of
this 2013 Act, + } may not disclose any part of the record of the
proceeding { +  or commitment + } to any person except:
  (a) The court shall, pursuant to rules adopted by the
Department of State Police, transmit the minimum information
necessary, as defined in ORS 181.740, to the Department of State
Police for persons described in ORS 181.740 (1)(a) or (b) to
enable the department to access and maintain the information and
transmit the information to the federal government as required
under federal law;
  (b) As provided in ORS 426.070 (5)(c), 426.130 (3) or 426.170;
  (c) On request of the person subject to the proceeding;
  (d) On request of the person's legal representative or the
attorney for the person or the state; or
  (e) Pursuant to court order.
  (2) In any proceeding described in subsection (1) of this
section that is before the Supreme Court or the Court of Appeals,
the limitations on disclosure imposed by this section apply to
the appellate court record and to the trial court record while it
is in the appellate court's custody. The appellate court may
disclose information from the trial or appellate court record in
a decision, as defined in ORS 19.450, provided that the court
uses initials, an alias or some other convention for protecting
against public disclosure the identity of the allegedly mentally
ill person.
  SECTION 5. ORS 426.250, as amended by section 4, chapter 25,
Oregon Laws 2012, is amended to read:
  426.250. The following is a nonexclusive list of
responsibilities for payment of various costs related to
commitment proceedings under this chapter as described:
  (1) Any physician or qualified person recommended by the Oregon
Health Authority who is employed under ORS 426.110 to make an
examination as to the mental condition of a person alleged to be
mentally ill shall be allowed a fee as the court in its
discretion determines reasonable for the examination.
  (2) Witnesses subpoenaed to give testimony shall receive the
same fees as are paid in criminal cases, and are subject to
compulsory attendance in the same manner as provided in ORS
136.567 to 136.603. The attendance of out-of-state witnesses may
be secured in the same manner as provided in ORS 136.623 to
136.637. The party who subpoenas the witness or requests the
court to subpoena the witness is responsible for payment of the
cost of the subpoena and payment for the attendance of the
witness at a hearing. When the witness has been subpoenaed on
behalf of an allegedly mentally ill person who is represented by
appointed counsel, the fees and costs allowed for that witness
shall be paid pursuant to ORS 135.055. If the costs of witnesses
subpoenaed by the allegedly mentally ill person are paid as
provided under this subsection, the procedure for subpoenaing
witnesses shall comply with ORS 136.570.
  (3) If a person with a right to a counsel under ORS 426.100
 { +  or section 2 of this 2013 Act + } is determined to be
financially eligible for appointed counsel at state expense, the
public defense services executive director shall determine and
pay, as provided in ORS 135.055, the reasonable expenses related
to the representation of the person and compensation for legal
counsel.  The expenses and compensation so allowed shall be paid
by the public defense services executive director from funds
available for the purpose.
  (4) The authority shall pay the costs of expenses incurred
under ORS 426.100 by the Attorney General's office. Any costs for
district attorneys or other counsel appointed to assume
responsibility for presenting the state's case shall be paid by
the county where the commitment hearing is held, subject to
reimbursement under ORS 426.310.
  (5) All costs incurred in connection with a proceeding under
ORS 426.180 { +  or section 2 of this 2013 Act + }, including the
costs of transportation, commitment and delivery of the person,
shall be paid by the county of which the person is a resident. If
the person is not a resident of this state, then the costs
incurred in connection with the proceeding shall be paid by the
county from which the emergency admission was made.
  (6) All costs incurred in connection with a proceeding under
ORS 426.180 for the commitment of a person from a reservation,
including the cost of transportation, commitment and delivery of
the person, shall be paid by the governing body of the
reservation of which the person is a resident.
  SECTION 6.  { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
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