Oregon Advisory Opinions May 16, 1972: OAG 72-29 (May 16, 1972)

OAG 72-29.

It is an extremely serious step to deprive any person of his right to vote, and it is essential that such a step be taken with absolute consistency. For this reason, clear guidelines must be established in determining whether any person is an "idiot or mentally diseased." The lines between mental health and mental disease are obscure enough

to confound psychiatrists, and election officials cannot be expected to make such distinctions without a clear and easily applicable test.

This problem was raised in the deliberations of the Oregon Constitutional Convention in 1857. Article II, Section 3, as then adopted, contained the word "insane" in place of the present "mentally diseased". In Corey, A History of the Oregon Constitution , p. 323-324 (1926), it is recorded that delegate Frederick Waymire of Polk County presented the question to the assemblage as follows:

"Mr. Waymire moved to strike out idiot and insane person. Who was to decide who was crazy? He would not undertake to decide that all the members of the convention were sane. Lost."(fn1)

We have examined the constitutions of the other 49 states and decisions made under similar provisions and find them not to be applicable. In New v. Corrough , 370 S.W.2d 323, 327 (Mo. 1963), the court noted that the constitution of Missouri had been amended, with respect to disqualification of

any "insane person," to refer only to those for whom a guardian had been appointed, and said that "the purpose of the amendment was to give polling officials something tangible on which to decide whether a person was disqualified by reason of his mental condition."

Uncertainty in the matter is of course unacceptable, but it is unnecessary, in our view, to await a constitutional amendment. We conclude that the Oregon Legislature is competent to define the scope of Article II, Section 3, Oregon Constitution, and has effectively done so. See Younger v. Jordan , 42 Cal.2d 757, 269 P.2d 616 (1954), in which the court looked to the statutes to determine who was an "insane person" under Article II, Section 1, of the California Constitution denying the privilege of an elector to such a person.

Oregon early had a procedure for determining that a person was "insane". See Deady, p. 682 (upon determination by the county judge) and p. 751 (similarly, after certification upon oath by a physician or physicians). Under ORS 426.070, a person may be adjudged to be mentally ill and in need of treatment. After such adjudication he may be committed to a state hospital, or to the custody of a guardian, relative or friend.

Two other provisions of present Oregon law are specifically in point.

ORS 426.295(1) provides:

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"No person admitted to a state hospital for the treatment of mental illness shall be considered by virtue of the admission to be incompetent."

ORS 426.375(1) provides:

"Subject to the general rules and regulations of the state hospital and except to the extent that the superintendent of the hospital determines that it is necessary for the medical welfare of the person admitted to the hospital to impose restrictions, every such person shall be entitled:

. . . .

"(c) To exercise all civil rights in the same manner and with the same effect as one not admitted to the hospital, including but not limited to the right to dispose of property, execute instruments, make purchases, enter contractual relationships, and vote , unless he has been adjudicated incompetent and has not been restored to legal capacity." (emphasis supplied)

It is thus clear that the Legislature has deemed that even involuntary commitment for treatment of mental illness is not a basis for denying a person the right to vote: unless such person has been specifically held incompetent. We do not construe the authority of the superintendent "to impose restrictions" as applicable to the right to vote.

Further, we conclude that such incompetency must have been determined under ORS 426.295 for reasons of mental illness, rather than under ORS 126.006 to 126.880, providing for appointment of a guardian. For the purpose of the question under discussion here, the constitution deprives persons of the privilege of an elector because they are

"mentally diseased". Yet according to the definition in ORS 126.006 (applicable to ORS 126.006 to 126.880) "incompetent" includes:

". . . any person who, by reason of mental illness, mental deficiency, advanced age, disease, weakness of mind or any other cause, is unable unassisted to properly manage and take care of himself or his property."

There is no provision in these statutes for specifying the particular basis for the finding of incompetency. Thus, the scope of such a determination could go beyond the intention of Article II, Section 3, Oregon Constitution, in denying the franchise to a potential voter. A degree of mental disease sufficient to justify appointment of a guardian might well be insufficient to justify admission to a hospital for treatment, let alone an adjudication of incompetence under ORS 426.295. A determination of incompetence for the purposes of ORS 126.006 to 126.880 would be unacceptable for election officials to use in determining a person's right to vote.

Nor would a finding under ORS 161.360 that a person accused of a crime is incompetent to stand trial, as a result of mental disease or defect, be sufficient alone to deprive the accused of the right to vote, since he may then be committed to the Oregon State Hospital. He would then be subject to the specific language of ORS 426.295(1) and 426.375(1)(c). If after a trial and a verdict of "not guilty by reason of mental disease or defect" under ORS 161.295, he is committed to the State Hospital for "custody, care and

treatment" under ORS 161.430, he would again be subject to ORS 426.295(1) and 426.375(1)(c), with a specific adjudication of incompetence necessary to deprive him of his right to vote. This being the case, a person "not guilty by reason of mental disease or defect" who is released under supervision pursuant to ORS 161.335, and of course a person released under ORS 161.329 as "no longer affected by mental disease or defect" or "not in need of care, supervision or treatment," could not logically be deprived of the right to vote.

The meaning of "mentally diseased" in Article II, Section 3, must have definite meaning if it is to be equally applied. The Legislature has validly provided that meaning only under ORS 426.295, in setting forth a procedure for adjudication of incompetency by reason of mental illness alone. The phrase "mentally diseased" cannot be applied to any other persons under Article II, Section 3 of the Oregon Constitution.