Oregon Advisory Opinions January 01, 1973: OP 6961

Advisory Opinion Text

DEPATRMENT OF JUSTICE

100 STATE OFFICE BUILDING

SALEM,OREGON 97310

TELEPHONE:(503)378-6368

January 10, 1973

No. 6961

This opinion is issued in response to questions submitted by Doctor J. D. Bray, M.D., Administrator, Mental Health Division.

FIRST QUESTION PRESENTED

Must the Mental Health Division, which has authority under ORS 42 8.810 to enter into an Interstate Compact with other states, enter into individual agreements with each state separately?

ANSWER GIVEN

No.

SECOND QUESTION PRESENTED

Does the Interstate Compact supersede the residency requirements of ORS Chapters 415, 427 and 42 8?

ANSWER GIVEN

Yes.

THIRD QUESTION PRESENTED

May the Mental Health Division transfer patients in and out of Oregon regardless of their admittance status, voluntary or court committed?

ANSWER GIVEN

Yes, under the Interstate Compact. But outside the Compact, transfers between Oregon and a non-party state in and out of Oregon can only be made of court—committed patients on a reciprocal basis.

FOURTH QUESTION PRESENTED

Are foreign states' commitment proceedings valid in Oregon, and may the Mental Health Division hold patients transferred into Oregon on the strength of these foreign commitments?

ANSWER GIVEN

Yes. Such proceedings should be deemed valid in Oregon.

DISCUSSION

In 1957, the Oregon Legislature empowered the Board of Control to execute and enter into the Interstate Compact on Mental Health. Oregon Laws 1957, Ch 388, Sec.14, ORS 428.310. This opinion deals primarily with this Interstate Compact, and its effect on Oregon Laws.

The first question presented is whether the Mental Health Division by virtue of ORS 42 8.310 must enter into individual compacts with each state separately or whether such agreements are automatically entered into with another state when that state enacts the Interstate Compact on Mental Health. ORS 428.310 provides that:

"The Mental Health Division may execute and terminate a compact on behalf of the State of Oregon with any state, territory or possession of the United States, the District of Columbia and the Commonwealth of Puerto Rico joining there­in, in the form substantially as follows: . . ."

The initial Act gave the authority to the Board of Control to execute the Compact with other states. Oregon Laws 1957, ch 388, Sec.14.

Zimmermann and Wendell, The Law and Use of Interstate Compacts (1961) explain that an interstate compact "is almost always a statute in each jurisdiction which is party to it." The Inter­state Compacts are not only statutes but they are also contracts. Zimmermann and Wendell, supra at 2.

The Compact comes into existence by one of two methods, enactment or execution. Enactment requires that the Compact "be enacted into law by the legislatures of participating jurisdictions; execution requires enactment and the formal execution by the Governor or other official agent of the state as a separate and subsequent action." Zimmermann and Wendell, supra , at 12 and 13. The Interstate Compact on Mental Health did not automatically come into existence by the enactment of ORS 42 8.310, rather the Compact required the Board of Control to execute the Compact. On August 20, 1957 the Board formally executed the Compact:

"We ... do hereby execute the Interstate Compact on Mental Health on behalf of the State of Oregon, said compact to be in effect as of August 20, 1957 as between the State of Oregon and any other state which legally joins therein pursuant to Section XIV of said Chapter 388." (emphasis supplied) By virtue of this execution Oregon "offered" to join any other state which legally entered into the Compact. Zimmermann and Wendell explain that:

"As with any other contract, the inception of a compact must be in the form of an offer to make a binding agreement . ". ". [T]he almost uni-versal method for accomplishing this result has been the enactment of the verbatim compact text as the body of a statute; declaring the state's adherence to it." Zimmermann and Wendell, supra , at 8 (emphasis supplied) Although it may be argued that the Board of Control did not intend to make an offer to all states which subsequently enacted the Compact, but was only "executing" the contract, the fact that there were no further formal individual agreements entered into by the Board, and the fact that the common practice was to make but one general offer, indicate that the Board's action was such an offer.

". . . [T]he acts which constitute an acceptance are precisely the same as those which constitute the offer—enactment of a statute entering into the compact and embodying its text, or execution of an agreement binding on the jurisdiction pur­suant to specific authorization by statute." Zimmermann and Wendell, supra at 8 There is no need for the Mental Health Division, in the execution of the Interstate Compact on Mental Health, to enter into individual agreements. The offer of August 20, 19 57, coupled with any other state's enactment of the Interstate Compact, is sufficient to make the states parties to the agreement.

The second question presented is whether the Mental Health Division, in the transfer of patients into and out of Oregon must comply with the residence requirements prescribed by ORS 415.010(3), 427.005 (2) and 428.210 (b). Article I of the Compact affirmatively states its purpose:

"The party states find that the proper and expeditious treatment of the mentally deficient can be facilitated by cooperative action, to the benefit of the patients, their families, and society as a whole. Further the party states find that the necessity of and desirability for furnishing such care and treatment bears no primary relation to residence or citizenship of the patient . . " (emphasis supplied) Article XIV states that "this compact shall be liberally construed so as to effectuate the purpose thereof." And, Article III states:

"Whenever a person physically present in any party state shall be in need of institu­tionalization by reason of mental illness or mental deficiency, he shall be eligible for care and treatment in an institution in that state irrespective of his residence, settle­ment or citizenship qualifications ." (emphasis supplied) As stated earlier, this Compact was executed in August, 1957 by the Board of Control. On that date the Compact became the Law between Oregon and other party states. See Zimmermann and Wendell, The Interstate Compact Since 19 25 , (1951) at 53. According to Zimmermann and Wendell, at 53, the effect of the Compact is to invalidate all statutes inconsistent with the Compact. If the Compact is incon­sistent with the residency requirements, they are superseded by the Compact.

The purpose of the Compact is to care for and treat the mentally ill and the mentally deficient. The care and treatment of such persons has no relationship to residence or citizenship. To conclude that the intent of the legislature was to care and treat only those mentally ill and mentally deficient persons who were residents of a party state would clearly contravene the entire purpose of the Compact. The legislature could have restricted coverage to residents of the party states but it did not do so. The legis­lature intended to cover all mentally ill and mentally deficient persons. Both the mandate to construe the statute liberally, Article XIV, and the purpose of the Compact dictate this conclusion.

A literal reading of Article III also requires this conclusion. Under that section a person is eligible for treatment if he is physically present in the state and if he is in need of institu­tionalization because of mental illness or mental deficiency. As stated in Article III, his eligibility for care is irrespective of his residency or citizenship. The fact that a person is a non­resident of a non-party state is not made a pertinent consideration.

Both the purpose and the provisions of the Compact are in conflict with the residency requirements of ORS 415.0 30, which requires the Division to return non-resident public charges who have not been committed to a state hospital by a court of competent jurisdiction; and with ORS 42 8.0 30 which requires the Mental Health Division to return non-resident patients to the state of their legal residence. Insofar as these provisions are inconsistent with the Interstate Compact, they are superseded by the Compact.

Mention should be made of an apparent conflict that exists between this holding and the initial Act. Oregon Laws 1957, ch 388 Sec.1, which enacted the Interstate Compact, also amended ORS 415.010.

ORS 415.010 defined "public charge", "public institution", and a "resident of this state". ORS 415.030, the present law, not amended by the Act, provides that:

"The Corrections Division or the Mental Health Division shall also return all nonresident public charges to the states in which they may have legal residence." (emphasis supplied) A public charge includes "all persons who are confined in or ad­mitted to any public institution of this state except a person defined as a patient." ORS 428.010. ORS 428.210 defines a patient to mean "any person who has been committed by a court of competent jurisdiction. . ." The force of these statutes is that the Mental Health Division must return non-residents to the place of their legal residence unless they have been "committed by a court of competent jurisdiction". Thus, it appears that the legislature created within the same Act a conflict. On the one hand, it recognized the existence of statutes dealing with residency require ments and on the other hand, it empowered the Board of Control to execute a Compact which is without residency requirements. We resolve the conflict in favor of the Compact. The agreement is to take effect between states. It is in the nature of a contract. The state has bound itself by its execution and until its repeal it must remain the law. Zimmermann and Wendell, supra at 53 states "But unlike ordinary statutes, it is superior to subsequently enacted legislation, and in these few instances where the courts have been called upon to choose between an ordinary state statute and a compact provision, they have held the conflicting statute invalid ." (emphasis supplied) Furthermore, as stated earlier, the Compact did not automatically become the law of Oregon. The Compact would not take effect until it was executed. The legislature's action can be understood as allowing the conflicting legislation to remain in effect until the Compact was executed. We conclude, therefore, that the residency requirements are superseded by the Compact. The third question presented is whether mentally ill and mentally deficient patients may be transferred into and out of Oregon without regard to whether there has been a voluntary commitment or an involuntary court commitment.

The Mental Health Division has authority under the Interstate Compact to transfer any "patient" when it is in the best interest of the patient. Article III. "Patient" is defined to mean:

". . . any person subject to or eligible as deter­mined by the laws of the sending state, for institu­tionalization or other care ..." Article 11(d) There is no distinction drawn between voluntary and court-committed patients. The intent is clear that patients may be transferred regardless of their admittance status. The only requirement is that the patient be eligible for treatment. However, such transfers are limited to members of the Compact. This con­clusion is drawn from the fact that a state is not obliged to re­ceive the patient "unless the receiving state consents", Article III (c). Receiving states are limited to party states, Article 11(b). The effect of this provision is that the transfer may be made but only between party states. The Compact is silent as to transfers between non-party states, therefore, reference must be made to the general statutes.

With respect to transfers between non-party states, the Mental Health Division has the authority under ORS 428.240(1) to enter into reciprocal agreements with other states for the mutual exchange of persons committed by a court of competent jurisdiction to any state hospital or foreign hospital. Under this statute the Division may transfer and receive patients but only if they have been committed by a court of competent jurisdiction. ORS 428.230(2) allows the Division to give written authorization for the return to a state hospital of a resident of Oregon who has been committed by a court of competent jurisdiction to a foreign hospital. Once again the authority given the Division is limited to patients who have been "committed" by a court of competent jurisdiction. There are no other statutes (except ORS 415.0 30 which has been superseded by the Compact) providing for the transfer or reception of patients which have been voluntarily committed, outside of the Interstate Compact on Mental Health. We must conclude, therefore, that there is no authority for the Division to transfer patients who are under voluntary commitment, except between party states of the Interstate Compact. As between Oregon and a non-party state, transfers in and out of Oregon can only be made of court-committed patients on a reciprocal basis.

The final question presented is whether foreign states' commitments are valid in Oregon and whether the Mental Health Division may hold patients transferred into Oregon on the strength of these foreign commitments. The real issue is whether such commitments may be deemed valid in Oregon.

Article III of the Interstate Compact provides that:

"Any patient may be transferred to an institution in another state . . . Any such institutionalization may be for teh entire period of care and treatment or for any por­tion or portions thereof ..."

Article II(d) defines "patient" to mean:

". . . any person subject to or eligible as determined by the laws of the sending state, for institutionalization or other care , treatment or supervision pursuant to the provisions of this compact." (emphasis supplied) A sending state is a party state , Article 11(a), furthermore, Article VII(a) states:

"... Completion of transfer of any patient to an institution in a receiving state shall have the effect of making the person a patient of the institution in the receiving state ." (emphasis supplied) The purpose of these provisions is to recognize that, at times, transfer of patients from one party state to another will be necessary. The effect is to implicitly recognize the validity of the commitment proceeding of the sending state. In order to com­plete the transfer there is no requirement that the court in the receiving state must review the prior decision of the sister state. The only requirement is that the sending state give advance notice, furnish all available medical and other pertinent records and give the receiving state's medical authorities, if they wish, the op­portunity to examine the patient. Article III(d). If these con­ditions are satisfied the patient will be under the control of the Mental Health Division upon the completion of transfer. Article VII(a) Accordingly, by force of the Compact, Oregon recognizes the commit­ment proceedings of other party states and may hold the patient on the strength of such commitments. However, this procedure is limited to parties to the Compact.

Should the sending state be a non-party state a different question is presented. Freeman on Judgments, Sec.902, 1899 (5 ed. 1925) states:

"Where the purpose of an insanity proceeding is to affect the status of the person in ques­tion . . . whether in respect of his liberty or personal and property rights, it is obviously in the nature of a proceeding in rem to that extent, and the resulting judgment is undoubtedly binding upon the world as to the status thus adjudicated."

Therefore, if the patient has been given a fair hearing, the commit­ment proceeding of another state would be valid in Oregon. Oregon's commitment proceeding would be equally valid in another state. If there is authority in the foreign state to transfer patients to Oregon, Oregon may hold the patients on the strength of the foreign state's commitment. Presuming Oregon has authority to transfer patients to or from a foreign state, then the Mental Health Division may hold the patient on the strength of the foreign state's commitment. LEE JOHNSON Attorney General

LJ:PSH:sd

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ORS 415.010(2) defines resident of this state as:

". . .a person who has lived in this state continuously for a period of two years and who has not acquired residence in another state by living continuously therein for at least two years subsequent to his residence in this state. . ."

ORS 427.005(2) and 428.210(6) are substantially the same except for a one year residency requirement rather than two.

The fact that the residency requirements have been superseded by the Interstate Compact makes it unnecessary to discuss the constitutionality of residency requirements. Reference should be made however to Shapiro v. Thompson , 393 US 618 (1969) and Vaughan v. Bower , 313 F. Sup. 37 (D.C. Ariz. 1970), aff. 400 US 844 (1971), which would strongly suggest that such provisions are un­constitutional .

See supra at pp 8 and 9 regarding who may be transferred into Oregon. There is no limitation between states who are party to the Compact but between non-party states ORS 428.240(1) and 428.230 (2) limit transfers to states with reciprocal agreements and then only for "court" committed patients.