No. 431 June 26, 2024 453

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

In the Matter of A. M., 

a Person Alleged to have Mental Illness.

STATE OF OREGON,

Respondent,

v.

A. M.,

Appellant.

Clackamas County Circuit Court

23CC03225; A181716

Susie L. Norby, Judge.

Argued and submitted May 15, 2024.

Christopher J. O’Connor argued the cause for appellant. 

Also on the brief was Multnomah Defenders, Inc.

Gregory A. Rios, Assistant Attorney General, argued the 

cause for respondent. Also on the brief was Ellen F. Rosenblum, 

Attorney General and Benjamin Gutman, Solicitor General.

Before Aoyagi, Presiding Judge, Jacquot, Judge, and 

Kistler, Senior Judge.

KISTLER, S. J.

Judgment vacated; remanded for further proceedings.
454 State v. A. M.

KISTLER, S. J.

The trial court committed appellant to the custody 

of the Mental Health Division for a period not to exceed 180 

days after finding that she suffered from a mental disorder 

and posed a danger to others. On appeal, appellant raises 

three assignments of error. Her first two assignments of 

error focus on the trial court’s rulings denying her motions 

for an in-person commitment hearing. Her third assignment 

of error is directed at the trial court’s finding that she posed 

a danger to others. We vacate the trial court’s judgment and 

remand this case for further proceedings.

On March 11, 2022, the Presiding Judge of 

Clackamas County entered an order providing that all civil 

commitment hearings in the county will “be held remotely.”1

More than a year later, the trial court ruled that there was 

probable cause to civilly commit appellant and set a date for 

a remote hearing to decide whether clear and convincing 

evidence established that she should be civilly committed. 

Approximately a week before the hearing, appellant filed a 

motion requesting an in-person hearing and challenging the 

Presiding Judge’s March 11, 2022, order. She argued that a 

remote hearing violated state statutes limiting the use of 

remote testimony and, alternatively, denied her due process.

Appellant’s motion described the way that remote 

civil commitment hearings are conducted in Clackamas 

County and the difficulties that, in appellant’s view, such 

hearings pose. It identified various state statutes that, as 

a general rule, require in-person testimony or assume that 

the courts will hold in-person civil commitment hearings. 

The motion also set out appellant’s due process arguments. 

At the end of her motion, appellant’s counsel represented 

that she had spoken with the district attorney’s office, which 

took no position on her motion.

The trial court did not hold a hearing on appellant’s 

motion. Rather, the day after she filed her motion, the court 

entered an order denying the motion “pursuant to [March 

11, 2022, Presiding Judge order].” Later, at the beginning 

1 The March 11, 2022, order provides that it “will remain in effect until 

amended, superseded, or vacated by further order.” 
Cite as 333 Or App 453 (2024) 455

of her commitment hearing, appellant renewed her motion 

for an in-person hearing, which the trial judge denied. The 

trial judge explained that, although she found appellant’s 

arguments “exceedingly compelling,” “we’ve had a discussion among all of the judges [in Clackamas County] about 

what the legal arguments are in favor of and against [appellant’s position]. And we allowed the majority of judges to 

prevail.” Appellant’s commitment hearing accordingly proceeded remotely.

Some of the procedural details of that hearing can 

be gleaned from the transcript. Every person who participated in the hearing appeared remotely—appellant, the 

judge, the lawyers, the examiners, and the witnesses. The 

trial judge noted that each person’s image was visible on her 

computer monitor as a separate “tile,” although the record 

does not disclose how many tiles the judge’s monitor could 

display simultaneously, how large each tile was, or whether 

each tile provided only a limited view of each participant. 

Each participant appears to have been at a separate location, with one exception. The trial court made a remark at 

one point in the hearing that revealed that appellant and 

her counsel were together apparently in the room where 

appellant was hospitalized.

The record does not disclose whether the various 

participants in appellant’s hearing used laptops, smart 

phones, or other devices to take part in the hearing, nor 

does it disclose whether the use of different devices or the 

lighting at each location affected the clarity of the images 

transmitted to the other participants. Occasionally, a participant stated that he or she was having difficulty hearing what another participant said. When that occurred, the 

trial judge was careful to remedy any limitation on the participants’ ability to hear each other.

The testimony at appellant’s hearing consisted of 

expert and fact witnesses. The state called a psychiatrist 

who testified that appellant suffers from a schizoaffective 

disorder, which can result in her experiencing delusions. 

Most of the testimony, however, centered on the factual question whether appellant posed a danger to others. An FBI 

agent explained that appellant repeatedly had threatened 
456 State v. A. M.

the FBI because she believed it was altering her social 

media accounts. He testified that, in response to appellant’s 

threats of violence, the FBI took a series of graduated steps 

to dissuade her from contacting them. Among other things, 

the FBI prohibited her from coming on its property, and it 

asked the Multnomah County District Attorney’s office to 

prosecute her for trespassing when she violated that prohibition. The FBI agent testified that those graduated 

steps did not prove successful and that appellant’s threats 

appeared to be escalating. Specifically, after threatening to 

hit an FBI agent with a baseball bat, appellant arrived at 

the FBI offices where a small bat was found in her car.

Appellant also testified. She explained that she 

carried the bat for her own protection and that she had no 

intention of harming anyone with it. The psychiatrist who 

examined appellant supported her position; he testified that, 

in his opinion, appellant was unlikely to act on her threats 

and recommended against commitment. After considering 

that evidence, the trial court found that taking the bat to 

the FBI office, coupled with appellant’s threats of violence, 

was “a step too far.” The court found that appellant suffered 

from a mental illness and posed a danger to others. Based 

on those findings, the court entered a judgment committing 

appellant to the custody of the Mental Health Division for a 

period not to exceed 180 days.

Appellant’s first two assignments of error challenge 

the trial court’s rulings denying her motion for an in-person 

hearing. As noted, both rulings were based on the Presiding 

Judge’s March 11, 2022, order. Appellant notes initially that 

the Presiding Judge’s order requires that all civil commitment hearings in Clackamas County be conducted remotely, 

without regard to whether there is a particularized need for 

all or even any of the participants in the hearing to appear 

remotely. In appellant’s view, the order indiscriminately 

requires remote testimony in violation of state statutes and 

the Due Process Clause of the Fourteenth Amendment.2

2 As we understand appellant’s argument, she does not contend that every 

participant in a civil commitment hearing must always appear personally; 

rather, she argues that she is entitled under state statutes and the federal constitution to an in-person hearing but that individual witnesses can appear remotely 
Cite as 333 Or App 453 (2024) 457

We begin with appellant’s statutory argument. 

Some of the statutes on which appellant relies limit the use 

of remote testimony. See, e.g., ORS 45.400(3) (permitting a 

witness to testify remotely only when good cause is shown 

and, among other things, the ability to evaluate the credibility and demeanor of the witness is not critical to the proceeding). Other statutes provide that the trial court may hold a 

civil commitment hearing where the person who allegedly is 

mentally ill is housed and thus assume an in-person hearing. See ORS 426.095(1); State v. G. N., 230 Or App 249, 256, 

215 P3d 902 (2009) (concluding that the trial court abused 

its discretion in applying ORS 426.095(1) when it held a 

civil commitment hearing at the courthouse but required 

the allegedly mentally ill person to appear remotely, without any apparent reason for not transporting him to the 

courthouse).3

The state does not dispute that, if those statutes 

applied, the Presiding Judge’s order would be invalid. The 

state notes, however, that ORS 1.002(5), as amended in 

2021, delegated authority to the Chief Justice of the Oregon 

Supreme Court to permit remote testimony in Oregon courts 

during a period of statewide emergency, and it did so “[n]

otwithstanding any other statute or rule to the contrary.” 

ORS 1.002(5)(c)(A) (2021), amended by Or Laws 2022, ch 68, 

§ 8, Or Laws 2023, ch 133, § 1.4

 The state also notes that the 

Chief Justice delegated that authority to the presiding judge 

of each judicial district, Chief Justice Order (CJO) 21-025 at 

6, and that the Presiding Judge in Clackamas County issued 

the March 11, 2022, order pursuant to that delegation. It 

if a particularized need warrants such testimony. See ORS 45.400(3) (describing 

categorically when remote testimony is and is not permitted).

3 Appellant argues that ORS 426.095(1), properly applied, should have led to 

her civil commitment hearing being held at the hospital where she was detained 

rather than the courthouse. The question, however, where an in-person commitment hearing should be held is secondary to the question whether appellant was 

entitled to an in-person hearing at all.

4 ORS 1.002(5)(c)(A) (2021) provided:

“Notwithstanding any other statute or rule to the contrary, during a period of 

statewide emergency, the Chief Justice may direct or permit any appearance 

before a court or a magistrate to be by telephone, other two-way electronic 

communication device or simultaneous electronic transmission.”

Or Laws 2021, ch 199, § 1(5)(c)(A).
458 State v. A. M.

follows, the state reasons, that the Presiding Judge’s March 

11, 2022, order providing that all civil commitment hearings will be heard remotely necessarily supersedes the statutes on which appellant relies.

As the state also notes, the 2022 legislature amended 

ORS 1.002(5)(c)(A) (2021) by removing the restriction that 

the Chief Justice could permit remote testimony only during 

a period of statewide emergency. See Or Laws 2022, ch 68, 

§ 8, codified as ORS 1.002(5)(a). Following that amendment, the Chief Justice issued updated Chief Justice orders 

that superseded the 2021 Chief Justice Order on which the 

Presiding Judge relied in issuing the March 11, 2022, order. 

See CJO 22-012 at 8; CJO 23-028 at 4. Each updated order 

consists of two sections. The first section recites the history 

that preceded the order; the second sets out the operative 

terms of the order. See CJO 22-012; CJO 23-028.

In the first section of CJO 22-012, the Chief Justice 

explained that, during the statewide emergency precipitated by COVID-19, the Oregon courts gained significant 

experience using remote testimony, and they recognized 

that remote testimony can increase Oregonians’ access to 

justice “notwithstanding work and childcare schedules that 

conflict with courthouse hours; limited access to public transit in some communities; [and] disabilities that make travel 

to the courthouse difficult.” CJO 22-012 at 2. The order also 

notes that, although the statewide emergency resulting 

from COVID-19 had ended, the 2022 legislature amended 

ORS 1.002(5) to permit the Chief Justice to continue the use 

of remote testimony. Id.

Based on those recitals, the second section of CJO 

22-012 sets out the operative terms of the order. CJO 22-012 

at 4. It provides that, “Circuit court proceedings may be 

conducted in person or by remote means, as determined by 

the Presiding Judge.” Id. It specifies that the authority delegated to the presiding judges supersedes statutes and rules 

requiring in-person testimony. Id. And it recognizes that the 

statutory authority delegated to the presiding judges to permit remote testimony must give way to a litigant’s constitutional right to in-person testimony. Id. Finally, the order 
Cite as 333 Or App 453 (2024) 459

authorizes litigants who believe that remote testimony violates their rights to file motions raising that claim. Id.

On appeal, appellant does not contend that the 

Presiding Judge lacked authority to issue the March 11, 

2022, order, nor does she argue that the order is no longer 

in effect as a result of either the 2022 amendment to ORS 

1.002(5) or the updated Chief Justice’s orders issued pursuant to the 2022 amendment. In the absence of any argument 

that the March 11, 2022, order is no longer valid, we agree 

with the state that the March 11, 2022, order supersedes 

the statutory authority on which appellant relies and turn 

to appellant’s due process claim.

The parties offer competing views of what due process requires. The state argues that we should evaluate the 

three factors set out in Mathews v. Eldridge, 424 US 319, 335, 

96 S Ct 893, 47 L Ed 2d 18 (1976), to determine what process is due when the state seeks to civilly commit a person. 

As we understand the state’s argument, it turns primarily 

on the second Mathews factor. The state reasons that, given 

the nature of the factual issues a civil commitment hearing 

entails, there is no constitutionally meaningful difference 

between the remote hearing in this case and an in-person 

hearing; that is, the state argues that the technology available in appellant’s hearing did not limit appellant’s participation in her civil commitment hearing in any constitutionally significant way.

Appellant offers two related but separate responses. 

She notes initially that, after balancing the three Mathews 

factors, the Court held in Addington v. Texas, 441 US 418, 

433, 99 S Ct 1804, 60 L Ed 2d 323 (1979), that due process 

requires greater procedural protections for persons facing 

civil commitment than the procedural protections that ordinarily apply in civil cases. She concludes that the Presiding 

Judge’s March 11, 2022, order strikes precisely the opposite balance: It requires that civil commitment hearings be 

conducted remotely while permitting in-person hearings in 

ordinary civil cases. Alternatively, appellant relies on State 

v. O’Neill, 274 Or 59, 545 P2d 97 (1976), and State v. T. C., 327 

Or App 558, 536 P3d 591 (2023), rev den, 371 Or 825 (2024), 
460 State v. A. M.

for the proposition that due process requires in-person civil 

commitment proceedings.

We begin with appellant’s alternative argument. 

If, as she contends, the Oregon courts have already decided 

that due process requires in-person civil commitment hearings, we need not undertake our own evaluation of the three 

Mathews factors. As we understand appellant’s alternative argument, it runs as follows. She contends that ORS 

426.095(1) requires in-person civil commitment hearings. 

She also contends that both O’Neill and T. C. establish that 

civil commitment hearings will comply with due process only 

if they strictly follow the procedures set out in ORS 426.095. 

It follows from those two propositions, she reasons, that due 

process requires in-person civil commitment hearings.

The premises on which appellant’s argument 

rests are questionable. ORS 426.095(1) does not expressly 

require an in-person hearing, although it may assume one.5

Moreover, we did not hold in G. N. that ORS 426.095(1) 

requires an in-person hearing; rather, we held that, given 

the information before it, the trial court abused its discretion in requiring the appellant to participate remotely in his 

civil commitment hearing. See 230 Or App at 256. G. N. left 

open the possibility that the trial court permissibly could 

have reached a different conclusion in other circumstances. 

Finally, we question whether appellant reads O’Neill and T. 

C. more broadly than those decisions warrant.

In our view, another line of authority provides 

firmer support for appellant’s position.6

 In Vitek v. Jones, 

445 US 480, 494-96, 100 S Ct 1254, 63 L Ed 2d 552 (1980), 

the United States Supreme Court agreed that due process 

requires “an opportunity to be heard in person” before a person can be civilly committed.7

 At first blush, Vitek appears 

5 ORS 426.095(1) provides that a civil commitment “hearing may be held in 

a hospital, the person’s home or some other place convenient to the court and the 

person alleged to have a mental illness.”

6 The state commendably brought this line of authority to our attention in its 

answering brief.

7 In Vitek, the state sought to transfer an inmate from prison to a mental 

hospital based solely on a doctor’s opinion that the inmate suffered from a mental illness that could not properly be treated in the prison. See 445 US at 483-

85. In considering what process was due before the inmate could be transferred, 
Cite as 333 Or App 453 (2024) 461

dispositive. The difficulty, however, with Vitek is that the 

technology available in this case did not exist in 1980 when 

Vitek was decided. For all that appears from Vitek, no one 

argued that a remote civil commitment hearing, much less a 

remote civil commitment hearing using the technology now 

available, would comply with due process. We decline to read 

Vitek as deciding a question that no one asked and the Court 

never answered. Appellant’s reliance on O’Neill and T. C.

suffers from the same problem.8

We also consider appellant’s initial due process 

argument. If the reasoning in Addington controls this 

case, as appellant argues, then we need not rebalance the 

Mathews factors to decide whether a remote civil commitment hearing complies with due process. The procedural 

due process question in Addington was whether due process 

requires proof beyond a reasonable doubt in civil commitment hearings. See 441 US at 427. Balancing the Mathews 

factors, the Court held that due process requires proof by 

clear and convincing evidence—the midlevel standard of 

proof between proof beyond a reasonable doubt and proof 

by a preponderance of the evidence. Id. at 432-33. The difficulty with appellant’s reliance on Addington is that different procedural protections in a civil commitment hearing 

can impose different costs on the government and provide 

different contributions toward reaching an accurate result. 

Cf. Wolff v. McDonnell, 418 US 539, 563-70, 94 S Ct 2963, 

41 L Ed 2d 935 (1974) (separately analyzing a range of procedural protections in prison disciplinary hearings based 

on the benefits and burdens each procedure entailed). We 

cannot automatically translate Addington’s holding on the 

applicable standard of proof into a requirement for in-person 

hearings, as appellant would. The two procedural protections raise separate due process issues.

the Court held that the district court appropriately concluded that due process 

required, among other things, “the opportunity to be heard in person” before 

being transferred. Id. at 494-96.

8 Neither O’Neill nor T. C. considered whether due process precludes the 

state from conducting civil commitment hearings remotely. Indeed, neither case 

specifically addressed whether due process requires that civil commitment hearings be held in person rather than remotely. They provide no more support for 

appellant’s argument than Vitek does. 
462 State v. A. M.

This is not to say that Addington and Vitek have no 

bearing on the due process issue that appellant raises. Their 

analysis of the private interest at stake in civil commitment 

hearings is controlling, as we discuss below. Moreover, Vitek

is relevant in another respect. By recognizing that due process requires an “opportunity to be heard in person” before 

being civilly committed, Vitek identifies the standard that a 

remote civil commitment hearing must meet to comply with 

due process; that is, Vitek makes clear that a remote hearing 

must provide the same or equivalent procedural protections 

as an in-person hearing to survive a procedural due process 

challenge.

Because the existing cases do not resolve the due 

process issue that appellant raises, we turn to the methodology that the United States Supreme Court has identified 

for deciding that issue. When the state impairs a liberty or 

property interest protected by the Due Process Clause, the 

question of what process is due turns on an evaluation of 

“three distinct factors”:

“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of 

such interest through the procedures used, and the probable value, if any, of additional or substitute procedural 

safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural 

requirement would entail.”

Mathews, 424 US at 335. The record in this case permits us 

to assess the first and third Mathews factors, and we begin 

by discussing them.

The first Mathews factor is the “private interest that 

will be affected by the official action.” Id. Appellant argues, 

and the state does not dispute, that the private interest 

affected by an involuntary civil commitment is “significant.” 

Addington, 441 US at 425. In Oregon, a person who is civilly 

committed can be involuntarily confined for medical treatment for up to 180 days. As the Court has observed, “for 

the ordinary citizen, commitment to a mental hospital produces ‘a massive curtailment of liberty.’” Vitek, 445 US at 

491 (quoting Humphrey v. Cody, 405 US 504, 509, 92 S Ct 
Cite as 333 Or App 453 (2024) 463

1048, 31 L Ed 2d 394 (1972)). Although civil commitment is 

not punitive, the loss of liberty is so significant that due process requires proof by clear and convincing evidence, rather 

than a preponderance of the evidence, before a person can be 

committed. Addington, 441 US at 433.

The record also permits us to assess the third factor that Mathews identified, “the Government’s interest, 

including the function involved and the fiscal and administrative burdens that the additional or substitute procedural 

requirement would entail.” 424 US at 335. The state argues 

that an in-person hearing affects three governmental interests: (1) the state’s interest in providing care to its citizens 

and protecting the community from those who pose a danger to others; (2) the cost of transporting persons alleged to 

be mentally ill from the hospital to the courthouse or, alternatively, the cost of holding the hearing at the hospital; and 

(3) the state’s interest in permitting psychologists and other 

medical personnel to devote their time to other persons who 

need their care. We consider each of those interests in turn.

As the state notes, the Court recognized in Addington 

that a state has an interest in caring for its citizens who are 

unable to care for themselves and in protecting the community from those who pose a danger to it. See 441 US at 

426. As the Court also recognized, however, “the State has 

no interest in confining individuals involuntarily if they are 

not mentally ill or if they do not pose some danger to themselves or others.” Id. In our view, the first interest the state 

identifies reduces to an interest in accurately determining 

the factual issues involved in a civil commitment hearing. 

In that respect, it anticipates the second Mathews factor and 

adds no independent weight to the state’s interests.

The state identifies a second interest: the cost of 

transporting a person who allegedly is mentally ill from 

the hospital to the courthouse or, alternatively, the cost of 

requiring the judge and court staff to hold the hearing at 

the hospital. As the state notes, each alternative imposes a 

cost on the state. However, ORS 426.095(1) assumes those 

costs are an inherent part of the system. Moreover, we held 

in G. N. that, despite the cost of transporting the person 

who allegedly was mentally ill to the courthouse, the trial 
464 State v. A. M.

court abused its discretion in requiring the person to appear 

remotely at his civil commitment hearing. 230 Or App at 

255 (explaining that, in applying ORS 426.095(1), “[n]o reason was given why transporting appellant to the courthouse 

or making some other accommodation would have been 

inconvenient for the court”).

We look to ORS 426.095(1), as interpreted in G. N., 

not to show that it bars the Presiding Judge’s order. Rather, 

we look to ORS 426.095(1) because it reflects the legislature’s 

determination that the cost of either transporting a person 

who allegedly is mentally ill to the courthouse or of holding 

the hearing where the person is housed is an incidental cost 

of determining whether a person should be civilly committed; it is not a substantial burden on the state that justifies 

lesser procedural protections as a matter of due process.

Finally, the state relies on Parham v. J. R., 442 US 

584, 606, 99 S Ct 2493, 61 L Ed 2d 101 (1979), for the proposition that requiring psychologists and medical professionals 

to attend in-person hearings hampers their ability to provide medical services to other persons in their care. As we 

read Parham, that case provides less support for the state’s 

position than it perceives. The question in Parham was what 

process is due when a parent voluntarily decides to commit 

a mentally ill child to a state hospital for care and treatment. See id. at 588-89. In those circumstances, the State of 

Georgia required a doctor to examine the child on admission 

to determine if the child had a mental illness that required 

hospitalization. Id. at 590-91. The state also required periodic follow-up examinations to determine if hospitalization 

remained appropriate. Id. at 591-93. The state, however, did 

not provide a pre- or post-admission hearing to review the 

parents’ and doctor’s joint decision to admit the child. Id. at 

597.

In holding that no pre- or post-admission hearing 

was constitutionally required, the Court observed in Parham 

that, “One factor that must be considered is the utilization 

of the time of psychiatrists, psychologists, and other behavioral specialists in preparing for and participating in hearings rather than performing the tasks for which their special training has fitted them.” Id. at 605-06. One difficulty 
Cite as 333 Or App 453 (2024) 465

with the state’s reliance on Parham is that the psychologists 

and medical professionals who testify in Oregon civil commitment hearings will have to spend time “preparing for 

and participating in [those] hearings” regardless of whether 

the hearings are remote or in person. Id.

The only time that remote commitment hearings 

save is the time it takes the medical professional to travel to 

the courthouse. Ordinarily, that will involve a relatively minimal time commitment.9

 Moreover, if the hearing is held at the 

hospital where the medical professional practices, then the 

only time that a remote hearing will save is the time it takes 

for the medical professionals to walk from their office to the 

hospital room where the in-person hearing is being held. The 

burden on the state that the Court noted in Parham is largely 

absent here. Considering the costs of holding an in-person 

hearing that the state has identified, we conclude that the 

incremental cost of such hearings is minimal at most.

That leaves the second factor that Mathews identified—“the risk of an erroneous deprivation of [a protected 

liberty] interest through the procedures used, and the probable value, if any, of additional or substitute procedural 

safeguards.” 424 US at 335. On that factor, the state argues 

that, in light of the other procedural protections available 

in civil commitment hearings, the “probable value” of an 

in-person hearing “is minimal.” Appellant responds, as she 

did at trial, by asserting that remote hearings pose technological and other difficulties that create a constitutionally 

unacceptable risk of an erroneous deprivation of liberty.

The parties’ disagreement turns on a factual issue—

the extent to which a remote hearing provides the same or 

equivalent procedural protections as an in-person hearing. 

9 Sometimes, the time required to travel to a hearing may present a more substantial burden. Appellant, however, does not contend that due process requires 

that every witness testify in person at a civil commitment hearing. Rather, as 

we understand her position, if the Presiding Judge’s March 11, 2022, order violates due process, then the order will have no effect, and the existing statutes 

governing remote testimony will apply. Specifically, if the March 11, 2022, order 

is invalid, then ORS 45.400 would permit a witness to testify remotely in a civil 

commitment hearing if the trial court determined, among other things, that 

the time or difficulty of traveling to the hearing presented an “undue hardship” 

or otherwise established “good cause” for testifying remotely. See ORS 45.400

(3)(b)(C), (E). 
466 State v. A. M.

It may be, as the state argues, that any incremental value 

from an in-person hearing is “minimal.” Alternatively, it 

may be, as appellant argues, that the deficits inherent in a 

remote hearing present an unacceptable risk of an erroneous deprivation while an in-person hearing provides a better 

opportunity for the trier of fact to make credibility determinations and the like. Certainly, custom and the legislature’s 

assumption, reflected in ORS 426.095(1), that civil commitment hearings will be held in person provide some support 

for appellant’s position. The record, however, contains no 

evidence one way or the other on those factual issues, much 

less a resolution of any competing evidence.

Perhaps we could resolve this case by determining 

which side had the burden of production and ruling against 

the side that failed to meet its burden. The trial court, however, did not hold a hearing on appellant’s motion. Rather, 

it denied her motion the day after she filed it, based on the 

Presiding Judge’s order. Appellant never had the opportunity 

to present any evidence to support her position, and the state, 

represented by the district attorney’s office, took no position 

on her motion in the trial court. As a result, the state did 

not seek to either put on any evidence or put appellant to 

her proof. In these circumstances, we think that the better 

course is to remand this case for an evidentiary hearing on 

appellant’s motion, primarily on the second Mathews factor.

As noted, the second Mathews factor turns on whether 

a remote hearing, using the technology available in this case, 

created the “risk of an erroneous deprivation” and conversely 

the value that an in-person hearing would add to reaching an 

accurate result. That is, in light of the factual issues that are 

at play in civil commitment hearings, how does an in-person 

hearing produce a more accurate answer than a remote hearing, and relatedly are there technological or other problems 

with the remote technology currently used by the court that 

create an unacceptable risk of an erroneous determination?

In answering that question, it is important to keep 

two principles in mind. First, the answer to the question 

does not turn on the particular facts of a specific case. 

Rather, as the Court explained in Mathews, “procedural 

due process rules are shaped by the risk of error inherent 
Cite as 333 Or App 453 (2024) 467

in the truthfinding process as applied to the generality of 

cases, not the rare exceptions.” 424 US at 344 (discussing 

the second Mathews factor). As we understand Mathews, it 

sought to avoid announcing procedural rules that varied 

from one case to the next depending on each case’s unique 

facts. Rather, the Court has sought to announce general due 

process rules subject to categorical exceptions. See Wolff, 418 

US at 566 (providing that due process permits an inmate 

to call witnesses in a prison disciplinary proceeding unless 

“permitting him to do so will * ** be unduly hazardous to 

institutional safety or correctional goals”).10

Second, any deficit associated with a remote civil 

commitment hearing and any benefit from an in-person 

hearing are relevant to the second Mathews factor to the 

extent they increase or decrease the risk of an erroneous 

determination. Heller v. Doe, 509 US 312, 332, 113 S Ct 2637, 

125 L Ed 2d 257 (1993) (concluding that, even if allowing 

parents and guardians to participate in a commitment proceeding increased the likelihood of commitment, those persons’ participation in the hearing did not increase the risk 

of an inaccurate determination and thus did not bear on the 

second Mathews factor). As the Court explained in Heller, 

“At least to the extent protected by the Due Process Clause, 

the interest of a person subject to governmental action is in 

the accurate determination of the matters before the court, 

not in a result more favorable to him.” Id.

Once the parties have had an opportunity to present evidence and the trial court has resolved any disputed 

evidentiary issues, then it can balance the three Mathews 

factors and determine whether due process requires an 

in-person commitment hearing. We accordingly vacate the 

trial court’s judgment and remand this case for further 

proceedings.

Judgment vacated; remanded for further 

proceedings.

10 If, as the state argues, due process does not generally require in-person 

civil commitment hearings, technological problems in an individual case could 

still render the hearing fundamentally unfair. In that instance, the specific hearing presumably would violate due process even though the procedures, if they had 

worked, would have complied with it.