No. 580 August 21, 2024 453

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

In the Matter of M. T., 

a Person Alleged to Have Mental Illness.

STATE OF OREGON,

Respondent,

v.

M. T.,

Appellant.

Lane County Circuit Court

23CC01202; A180955

Beatrice N. Grace, Judge.

Argued and submitted March 20, 2024.

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

Also on the briefs was Multnomah Defenders, Inc.

Ryan Kahn, Assistant Attorney General, argued the 

cause for respondent. Also on the briefs were Ellen F. 

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,

Judge.

AOYAGI, P. J.

Affirmed.
454 State v. M. T.
Cite as 334 Or App 453 (2024) 455

AOYAGI, P. J.

Appellant was committed to the custody of the 

Oregon Health Authority for a period up to 180 days, based 

on his being unable to meet his basic needs and a danger 

to others due to a mental disorder. ORS 426.130(1); ORS 

426.005(1)(f)(A), (B). On appeal, he raises a single assignment of error, relating to ORS 426.100(3), which recognizes a 

person’s right to be represented in a civil commitment hearing by “suitable legal counsel possessing skills and experience commensurate with the nature of the allegations and 

complexity of the case.” Appellant, who was represented by 

court-appointed counsel, argues that the trial court “erred 

by not assigning adequate counsel and erred by not stopping the hearing for the appointment of new counsel when 

it became apparent that the attorney did not have the requisite skills or experience to serve as suitable legal counsel.” 

Appellant’s argument is based entirely on ORS 426.100(3); 

he has disavowed any claim of constitutionally inadequate 

assistance of counsel. For the reasons described below, we 

affirm.

An allegedly mentally ill person has the right to 

be represented by counsel at a civil commitment hearing. 

ORS 426.100(2). The right to counsel includes both the right 

to obtain suitable legal counsel for oneself and the right to 

have suitable legal counsel appointed by the court in the 

event of indigency:

“When provided under [ORS 426.100(2)], a person 

alleged to have a mental illness 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 counsel is 

appointed at state expense, payment of expenses and compensation relating to legal counsel shall be made as provided under ORS 426.250.
456 State v. M. T.

“(c) If the person alleged to have a mental illness 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.”

ORS 426.100(3).

In this case, appellant argues that his courtappointed counsel was not “suitable” under ORS 426.100(3) 

and that the trial court should have stopped the hearing 

based on counsel’s performance and appointed new counsel. 

The state responds that appellant did not raise that issue 

below, that any error under ORS 426.100(3) is not “plain,” 

and that appellant’s argument therefore fails.

Before addressing the parties’ arguments, we pause 

to emphasize the nature of appellant’s claim of error. We 

found the opening brief to be ambiguous as to whether 

appellant was claiming inadequate assistance of counsel, 

because appellant uses “suitable” and “adequate” interchangeably and relies largely on counsel’s performance to 

argue that counsel was not suitable. That led us to request 

supplemental briefing from the parties. In his supplemental brief, appellant clarifies that he is not making an inadequate assistance claim. He explains that we “should not 

consider this to be a case regarding inadequate assistance 

of counsel” and that the issue presented on appeal is limited to whether the trial court failed to appoint “suitable” 

counsel for appellant. We appreciate the clarification and

proceed with that understanding.
Cite as 334 Or App 453 (2024) 457

	 Having clarified the nature of appellant’s claim of

error, we next consider preservation. “Generally, an issue 

not preserved in the trial court will not be considered on 

appeal.” State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000). 

Preservation is excused in some circumstances, however, as 

discussed below. We also always have discretion to review 

for “plain” errors. ORAP 5.45(1); see State v. Vanornum, 354 

Or 614, 629, 317 P3d 889 (2013) (“For an error to be plain 

error, it must be an error of law, obvious and not reasonably 

in dispute, and apparent on the record without requiring 

the court to choose among competing inferences.”).

The state argues that appellant did not alert the 

trial court to his counsel’s alleged unsuitability and that we 

should therefore treat his claim of error as unpreserved and 

review only for plain error. Appellant disagrees. In his opening brief, appellant requested plain-error review, but, in his 

supplemental brief, he argues that preservation should be 

excused because an allegedly mentally ill person has no 

practical ability to challenge counsel’s suitability in the trial 

court.

“Preservation rules are pragmatic as well as prudential.” Peeples v. Lampert, 345 Or 209, 220, 191 P3d 

637 (2008). It is well established that preservation will be 

excused in some circumstances, particularly where the 

appellant had “no practical ability to raise an issue.” Id. (“In 

some circumstances, the preservation requirement gives 

way entirely, as when a party has no practical ability to raise 

an issue.”). In the juvenile dependency context, in two cases 

involving inadequate assistance claims raised by parents 

for the first time on appeal, the Supreme Court has excused

preservation on impracticality grounds. As the court succinctly put it in T. L., “As a practical matter, the identification of an inadequate assistance of counsel claim and the 

question whether it caused cognizable prejudice to a party 

are complex legal issues that remain likely to be detected 

and assessed in the first instance only by competent counsel.” Dept. of Human Services v. T. L., 358 Or 679, 701, 369 

P3d 1159 (2016); see also State ex rel Juv. Dept. v. Geist, 310 

Or 176, 184 n 9, 796 P2d 1193 (1990) (“We recognize the 

reality that it is unlikely that any challenge to the adequacy 
458 State v. M. T.

of appointed trial counsel will have been preserved in the 

circuit court. It is neither realistic nor reasonable to expect 

that a parent’s trial counsel will have objected at trial that 

counsel’s advocacy was inadequate.”).

For present purposes, given the complicated issues 

raised by the parties’ preservation arguments, we decline 

to decide whether preservation should be excused in these 

circumstances. Instead, we assume without deciding that 

preservation is excused, because it ultimately does not affect 

our disposition.

Turning to the merits, ORS 426.100(3) recognizes 

an allegedly mentally ill person’s “right to obtain suitable 

legal counsel” and related right, if financially qualified, to

have counsel appointed by the court and paid for by the 

state. Suitable counsel is described in ORS 426.100(3)(a) 

as “suitable legal counsel possessing skills and experience 

commensurate with the nature of the allegations and complexity of the case.”

	 Neither party has identified any existing case law

regarding suitability of counsel, in the civil commitment 

context or otherwise, but some does exist. First, the same 

suitability standard applies to appointed counsel in postconviction cases. ORS 138.590(4) requires the circuit court 

to “appoint suitable counsel” for a financially eligible person seeking post-conviction relief. In that context, we have 

referred to the suitability requirement in reviewing the 

denial of motions for substitute counsel. For example, in 

Lopez v. Cain, 331 Or App 666, 673, 547 P3d 821 (2024), 

we held that the trial court had erred in denying the petitioner’s motion for substitute counsel, and we reversed and 

remanded for appointment of substitute counsel, where 

counsel “advocated against his client’s position [on a Church 

motion], assuming the role of opposing counsel, and therefore 

was not ‘suitable’ counsel for purposes of the post-conviction 

trial.”

Second, the legislature has long required administrative standards for appointed counsel. From 1985 to 

2001, the State Court Administrator was required to “establish standards of eligibility for *** [a]ppointed counsel 
Cite as 334 Or App 453 (2024) 459

compensated at public expense to represent indigents in 

the courts of this state or municipal court.” Former ORS 

151.430(3)(a) (1985), amended by Or Laws 1987, ch 803, 

§ 10, Or Laws 1995, ch 677, § 2, Or Laws 2021, ch 962, 

§ 109, repealed by Or Laws 2001, ch 962, § 115. From 2001 

to 2023, the Public Defense Services Commission (PDSC) 

was required to “[a]dopt policies, procedures, standards 

and guidelines regarding *** [p]rofessional qualifications

for counsel appointed to represent public defense clients.” 

ORS 151.216(1)(j)(F) (2021); see Or Laws 2001, ch 962, §§ 3, 

106 (original enactment). The most recent PDSC guidelines are from 2019 and include minimum qualifications

for appointed counsel in civil commitment cases. See Public 

Defense Services Commission Qualification Standards for 

Court-Appointed Counsel to Represent Financially Eligible 

Persons at State Expense, 5 (revised Dec 19, 2019), available at https://www.oregon.gov/opdc/provider/StandardsBP/

AttorneyQualification.docx (accessed Aug 5, 2024). The 

Oregon Public Defense Commission (OPDC) replaced the 

PDSC on January 1, 2024, see Or Laws 2023, ch 281, § 1, 

and does not appear to have created new qualification standards at this time.1

We addressed the suitability of counsel for appointment in a death-penalty case by reference to the administrative standards in State v. Maletta, 98 Or App 643, 781 

P2d 350 (1989), rev den, 309 Or 522 (1990). In that case, 

the trial court dismissed three aggravated-murder charges 

because the defendant “was not represented at his preliminary hearing by an attorney qualified under the State

Court Administrator’s standards to represent indigent 

defendants in capital or other murder cases.” Id. at 645. We 

reversed, agreeing with the state “that the dismissal was 

not proper, because defendant was not prejudiced by the 

appointment or the representation.” Id. In reaching that conclusion, we explained that ORS 135.045 (1987) requires the 

1 The legislature amended ORS 151.216 in 2023, with different amendments 

to take effect on different dates through mid-2027. As relevant here, the current ORS 151.216 requires OPDC to “[a]dopt policies, procedures, standards and 

guidelines regarding * ** [t]he appointment of counsel,” ORS 151.216(1)(h)(B), 

and in doing so to adhere to the principle that “[t]he ability, training and experience of appointed counsel must match the nature and complexity of the case to 

which the counsel is appointed,” ORS 151.216(2)(c). 
460 State v. M. T.

appointment of “suitable” counsel;2 that former ORS 151.480 

(1987), repealed by Or Laws 2001, ch 962, § 115, requires 

that appointed counsel meet “the standards of eligibility” 

created by the State Court Administrator pursuant to former ORS 151.430(3)(a) (1987);3

 and that the district court 

violated former ORS 151.480 (1987) by appointing an attorney who did not meet those standards. Maletta, 98 Or App 

at 648; see also id. at 645 n 1 (quoting standards). Dismissal 

was not “an appropriate remedy for the statutory violation,” 

however, given that the defendant had not been prejudiced. 

Id. at 648.

We disagreed with the trial court that prejudice 

should be “presumed” and instead looked to the facts of the 

case. Id. at 650. The defendant was not claiming inadequate 

assistance of counsel and had “not shown any constitutional 

violation.” Id. at 649. Regarding the latter, we noted that 

“the test for adequate assistance of counsel is necessarily 

general and subjective, and the focus must be on actual performance, not general competence.” Id. “‘Lawyers, like other 

professionals, are not all equally skillful, but the least of 

us can sometimes rise to a challenge and the best of us can 

blunder. Thus it is the performance, not the identity, of the 

defense lawyer which is subject to constitutional scrutiny.’” 

Id. (quoting Krummacher v. Gierloff, 290 Or 867, 872, 627 P2d 

458 (1981)). In other words, the “adequacy of counsel is measured by performance, not credentials.” Id. at 650. Because 

the defendant had not been prejudiced, we concluded that 

the trial court had erred in dismissing the charges to remedy the violation of former ORS 151.480 (1987) and reversed 

the dismissal ruling. Id.

Returning to the present case, we conclude that 

appellant has not made out a viable claim for reversal of his 

2 ORS 135.045 (1987) has been amended over time and no longer uses the 

term “suitable.” Compare ORS 135.045 (1987), amended by Or Laws 1989, ch 171, 

§ 16; Or Laws 1989, ch 1053, § 1a; Or Laws 1991, ch 790, § 11; Or Laws 2001, 

ch 472, § 1; Or Laws 2001, ch 962, § 24 (providing for the appointment of “suitable 

counsel”), with ORS 135.045 (2024) (providing for the appointment of “counsel”).

3 Under former ORS 151.480 (1987), “[u]nless the trial court appoints a public 

defender or an attorney under a contract with the state, the court must select 

an attorney who ‘satisfies the standards of eligibility established under [former] 

ORS 151.430(3)(a).’” Maletta, 98 Or App at 648 (quoting former ORS 151.480(1) 

(1987)). 
Cite as 334 Or App 453 (2024) 461

commitment. The trial court was required to appoint suitable counsel to represent appellant, i.e., counsel “possessing 

skills and experience commensurate with the nature of the 

allegations and complexity of the case.” ORS 426.100(3)(a). 

Appellant argues that the court appointed unsuitable counsel in violation of ORS 426.100(3). However, the record is 

silent as to counsel’s skills and experience at the time of 

appointment. Without any information regarding counsel’s 

qualifications, we cannot conclude on this record that the

court erred in making the appointment.

Furthermore, even if appellant could establish that 

it was error to appoint counsel, because counsel lacked skills 

and experience commensurate with the nature of the allegations and complexity of the case, appellant would have to 

show that the error was prejudicial. As in Maletta, we would 

not reverse a civil commitment based on the appointment of 

counsel who was unsuitable on paper, in terms of skills and 

experience, absent proof of resulting prejudice to the appellant in the actual proceeding. Here, appellant argues that 

counsel underperformed, but he expressly disclaims constitutionally inadequate assistance of counsel. It is unclear, at 

best, that the existing record would be sufficient to establish

prejudice flowing from counsel’s appointment.

That leaves appellant’s argument that the trial 

court should have stopped the commitment hearing and 

appointed substitute counsel “when it became apparent that 

the attorney did not have the requisite skills or experience 

to serve as suitable legal counsel.” We are unpersuaded. It 

is unclear under what circumstances, if any, a trial court 

would be obligated to sua sponte substitute counsel in a 

civil commitment proceeding based on counsel becoming 

“unsuitable” in the course of the proceeding. In the postconviction context, we have described counsel who takes an 

adversarial position to the client during the proceeding as 

“unsuitable.” Lopez, 331 Or App at 673. By analogy, it is possible that a court would be required to substitute counsel in 

a civil commitment proceeding, perhaps even sua sponte, if 

counsel took an adversarial position to the client, revealed 

a conflict of interest, or otherwise created or revealed a circumstance that made it untenable for counsel to continue 
462 State v. M. T.

representing the client. But nothing of that nature occurred 

in this case. Alleged poor performance short of constitutional inadequacy does not require sua sponte substitution 

of counsel as unsuitable.

Accordingly, we reject appellant’s argument that 

the trial court appointed unsuitable counsel in violation of 

ORS 426.100(3). We also reject his argument that the court 

should have stopped the hearing to appoint substitute counsel based on counsel’s allegedly poor—but not constitutionally deficient—performance. In doing so, we recognize the

inherent difficulties of challenging appointed counsel’s qualifications or performance for the first time on appeal, when

the record will rarely be developed in a way suited to the 

task. We also recognize that civil commitments are unique 

in that, by the time of appeal, the commitment is inevitably over, and it is at best unclear whether the commitment 

hearing could be held again with different counsel. Finally, 

we recognize that it remains an open question in Oregon 

whether (and, if so, how) an allegedly mentally ill person 

may raise a claim of inadequate assistance of counsel in a 

civil commitment proceeding.4 All of those realities lead to 

a difficult situation for appellate counsel. Nonetheless, we

must apply the law as it exists, based on the arguments that 

have been made, and in this case that leads us to conclude 

that the judgment of commitment should be affirmed.

	 Affirmed.

4 In the termination-of-parental-rights (TPR) context, the Supreme Court 

has held that a parent’s statutory right to counsel implicitly includes the right to 

adequate counsel, Geist, 310 Or at 185, and that such right “would ‘prove illusory’ 

without a procedure to vindicate” it. T. L., 358 Or at 685-86 (quoting Geist, 310 

Or at 185). However, in the post-conviction context, we have refused to consider 

inadequate assistance claims, distinguishing Geist based on the “fundamental 

differences between the nature of [TPR] and post-conviction proceedings.” Miller 

v. Baldwin, 176 Or App 500, 507-08, 32 P3d 234 (2001); see also, e.g., Stokes v. 

Cain, 306 Or App 473, 479, 475 P3d 110 (2020), rev den, 367 Or 535 (2021) (a petitioner’s claim “that his post-conviction trial lawyer performed ineffectively *** 

is not a cognizable basis for reversing or setting aside the post-conviction court’s 

decision”). Shortly after the Miller decision, this court, sitting en banc, split 5-5 

on whether to consider an inadequate assistance claim in a civil commitment 

proceeding, as relevant to allowing a late appeal. State v. S. G. L., 177 Or App 

715, 33 P3d 1023 (2001). We have not revisited that issue since S. G. L. and do not 

do so in this case, because appellant is not claiming inadequate assistance.