# Hanson v. Psychiatric Security Review Board

> Court of Appeals of Oregon · September 30, 1998 · 156 Or. App. 198

URL: https://www.frixlaw.com/law-library/cases/9535767

## Case

- **Full name:** ROBERT W. HANSON, Petitioner, v. PSYCHIATRIC SECURITY REVIEW BOARD, Respondent
- **Court:** Court of Appeals of Oregon
- **Decided:** September 30, 1998
- **Citations:** 156 Or. App. 198; 965 P.2d 1051; 1998 Ore. App. LEXIS 1564
- **Precedential status:** Published
- **Opinion:** Dissent by Landau
- **Judges:** Riggs, De Muniz, Landau, Warren
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Hanson v. Psychiatric Security Review Board, 331 Or. 626 (2001).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9535767

## How later opinions describe it (automated extraction)

- stating that alcoholism is not a personality disorder or an abnormality "manifested only by repeated criminal or otherwise antisocial conduct" excluded from the definition of mental disease or defect under Or.Rev.Stat. § 161.295(2)

## Opinion text

LANDAU, J.,
dissenting.
The majority holds that, as used in ORS 161.341(4), the term “mental disease or defect” includes the diagnosis “alcohol abuse,” even though it is clear beyond debate that the Legislative Assembly that enacted the statute and its related provisions intended quite the contrary. The majority justifies its conclusion by resorting to the Diagnostic and Statistical Manual of Mental Disorders (4th ed 1994) (DSM-IV), which defines alcohol abuse as a mental disorder. Thus, the majority ignores what the legislature actually intended in favor of a professional reference work that was not published until more than a decade after the statute was enacted into law. Such reasoning cannot be squared with any reasonable notion of legislative intent generally nor with the analytical framework for ascertaining legislative intent described in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12 , 859 P2d 1143 (1993), particularly.
To ascertain the intended meaning of the term “mental disease or defect,” we are required to examine the text of the statute in its context. Id. at 610-11 . If analysis of the text in context does not clearly reveal the intended meaning of the term — that is, if it remains reasonably susceptible of more than one meaning — then we must examine the legislative history and other interpretive aids. Id. at 611-12 .
*210 ORS 161.341(4) does not define the term “mental disease or defect.” Its meaning certainly is not intuitively obvious. See Webster’s Third New Int’l Dictionary, 1168, 1411 (unabridged ed 1976) (using “mental disorder,” “mental disease” and “insanity” as interchangeable terms). From the term alone, it is impossible to determine whether the legislature intended alcohol abuse to be considered a “mental disease or defect” within the meaning of the statute.
The context of the statute includes other related statutes. Jones v. General Motors Corp., 325 Or 404, 411 , 939 P2d 608 (1997). ORS 161.295, relating to criminal responsibility, is such a statute. It defines the term “mental disease or defect” specifically to exclude “any abnormality constituting solely a personality disorder.” ORS 161.295(2). Unfortunately, the statute does not define “personality disorder.” In particular, it sheds no light on whether the legislature intended alcohol abuse to be considered a “personality disorder” and thus not a “mental disease or defect” within the meaning of the statute.
Prior judicial construction of the relevant statutes also must be considered at the first level of analysis. Michels v. Hodges, 326 Or 538, 544 , 956 P2d 184 (1998). Especially pertinent in that regard is the Supreme Court’s decision in Mueller v. PSRB, 325 Or 332 , 937 P2d 1028 (1997). In that case, the court addressed whether the diagnosis “organic personality disorder” constitutes a “mental disease or defect” within the meaning of ORS 161.341(4)(a) and ORS 161.295(1). The court began by assuming that the legislature intended that the version of the DSM in effect at the time of the enactment of the statute may be referred to “for guidance in cases involving individuals with mental diseases or defects .’’Mueller, 325 Or at 339. Apparently, the court examined the legislative history; I know of no other way that the court could have arrived at that conclusion. 1 The court then *211 disposed of the case on the basis of the definitions in the DSM-III, which was the version in existence at the time the legislature enacted ORS 161.295(1). Id. at 342-43.
I do not read Mueller to hold broadly that, regardless of what the legislature actually may have intended, what constitutes a “mental disease or defect” within the meaning of the statute always is determined by reference to the DSM in effect at the time of enactment and that recourse to the legislative history is inappropriate. The court did not say that. The court said that the DSM may be referred to for “guidance.” Moreover, it is apparent that the court itself looked to the legislative history in Mueller .
Therefore, because it remains unclear whether the legislature intended alcohol abuse to be considered a “personality disorder” within the meaning of ORS 161.295(1), it is necessary to examine the legislative history. That history shows that the legislature considered the very question at hand and enacted the bill that became ORS 161.295(1) with the stated intention that the term “personality disorder” include alcohol abuse, that is, that alcohol abuse not be considered a “mental disease or defect.”
ORS 161.295 originated as House Bill 2075 (HB 2075) in the 1983 Legislature. An interim legislative committee drafted the bill to address public concern over the scope of the so-called “insanity defense” in criminal cases. In its original version, the bill did not exclude “personality disorders” from the term “mental disease or defect.” At an introductory hearing on the bill, Felicia Gniewosz, the Executive Director of the Psychiatric Security Review Board (Board) submitted written testimony stating the Board’s support for the bill and its suggestions for strengthening it. She specifically suggested: *212 Testimony, House Committee on Judiciary, HB 2075, April 27, 1983, Ex D at 2.
*211 “The legislature should take a position to either include or exclude ‘personality disorders’ from the definition [of mental disease or defect]. It should be noted that personality disorders include the following diagnoses: antisocial, inadequate, passive-aggressive, sexual conduct disorders, drug dependent, alcohol dependent and paranoid.”
*212 During the same hearing, Judy Snyder, the Chair of the Board, similarly testified that the Board supported the exclusion of personality disorders from the definition of “mental disease or defect” and that the term personality disorder includes child molestation and other sex offenses, as well as persons “suffering from a drug-induced syndrome.” Testimony, House Committee on Judiciary, HB 2075, April 27, 1983, Tape 270, Side A at 108. Board chair Snyder added as an example of a personality disorder,
“people who have an alcohol problem and who maybe stabbed someone while they were in an alcoholic stupor and they’re put under our jurisdiction. * * * The problem the Board has is that kind of a person can be very dangerous if they drink alcohol but the doctors will testify that’s not a mental illness, they don’t have a mental illness [.]”
Id. at Tape 269, Side B at 112.
At a later hearing on the bill, the subject of excluding personality disorders from the definition of “mental disease or defect” again arose. Following a discussion of the difficulties of defining terms, Representative Hill questioned whether the distinguishing characteristic of a personality disorder is the individual’s self control. The Executive Director of the Board replied that some individuals can control their disorders, while others cannot. She explained that “the perfect example would be that one of the personality disorders would be somebody that’s alcohol or drug dependent.” Testimony, House Committee on Judiciary, HB 2075, May 13,1983, Tape 324, Side A at 200. At that point, Representative Courtney, a member of the legislative interim task force that drafted the bill, asked Jeffrey Rogers, the chair of the task force, what language could accomplish the proposed exclusion of personality disorder. Rogers proposed what is in substance the current law. The amendment was adopted without objection. Testimony, House Committee on Judiciary, HB 2075, May 13,1983, Tape 324, Side A at 302.
The committee ultimately approved the bill with the exclusion amendment. In the staff measure analysis, legal *213 counsel for the committee summarized the effect of the bill in the following terms:
“The bill as amended further limits the scope of mental diseases or defects for which a person may be found, under present law, ‘not responsible.’ Existing law excludes abnormalities manifested only by repeated criminal or otherwise antisocial conduct. The bill would exclude, in addition, any abnormality which constitutes solely a personality disorder, which includes such diagnoses as sexual conduct disorders, drug dependent and alcohol dependent.”
Staff Measure Analysis, House Committee on Judiciary, HB 2075, 1983.
In the floor debates in the House, the floor manager, Representative Courtney, explained that the bill contained a “personality exclusion,” which accomplished a narrowing of the definition of mental disease or defect. Quoting directly from the letter from Gniewosz to the House Judiciary Committee, Courtney explained:
“Right now if a person has what is considered a personality disorder, by that I mean what they call ‘anti-social, inadequate, passive-aggressive, sexual conduct disorders, drug dependent, alcohol dependent, or paranoid,’ if they fit into that personality disorder category they’re able to claim that they have a mental disease or defect. We now no longer, with this piece of legislation, will allow an individual to say that I have a mental disease or defect because I have a personality disorder.”
House Floor Debate, HB 2075, June 16,1983, Reel 19, Track I at 218.
The bill then was referred to the Senate Judiciary Committee. Representative Courtney introduced the bill to the committee, explaining that it “would remove personality disorders as a category that could be relied upon for use of the insanity plea.” Testimony, Senate Committee on Judiciary, HB 2075, June 29, 1983, Tape 234, Side A at 067. He described people with personality disorders as “anti-social, inadequate, passive, aggressive, sexual conduct disorders, drug dependent, alcohol dependent, paranoid, etc ” Id. At the same hearing, task force chair Rogers testified. He explained *214 to the committee the findings of a study that he and two professors from the Oregon Health Sciences University recently had completed concerning the insanity defense in Oregon over a five-year period. That report explicitly categorized alcohol and drug dependency as personality disorders. Senate Judiciary Committee, HB 2075, June 29, 1983, Unmarked Exhibit (“Oregon’s New Insanity Defense System: A Review of the First Five Years — 1978-1982”) at 14.
The Senate committee amended the bill to delete the exclusion of personality disorders, apparently because of concern that the term was too difficult to define. The Senate approved the bill as amended.
The deletion of the exclusion was the first topic of debate in the Conference Committee. Representative Courtney explained that he was satisfied by testimony from the Board and from Rogers that the term “personality disorder” has a meaning in the profession. In his explanation, Courtney explicitly referred to the Rogers report and its list of diagnoses — including drug and alcohol dependency — that qualified as personality disorders. Tape Recording, Conference Committee, HB 2075, July 13,1983, Tape 550, Side A at 002. The Conference Committee ultimately agreed to restore the personality disorder exclusion. The staff measure analysis, prepared by House Committee Counsel, explained that, as amended, the bill “would exclude * * * any abnormality which constitutes solely a personality disorder, which includes such diagnoses as sexual conduct disorders, drug dependent and alcohol dependent.” Staff Measure Analysis, House Committee, HB 2075, 1983. The bill as amended by the Conference Committee was approved by both houses and was signed into law.
Legislative history frequently can be sparse, equivocal and sketchy. See Errand v. Cascade Steel Rolling Mills, Inc., 320 Or 509 , 539 n 4, 888 P2d 544 (1995) (Graber, J., dissenting) (reliance on statements of two witnesses and two legislators “fraught with the potential for misconstruction”). That is not the case here. Indeed, the Supreme Court has relied on much less. See, e.g., Zidell Marine Corp. v. West Painting, Inc., 322 Or 347, 357-59 , 906 P2d 809 (1995) (relying on statement of single witness). In this case, the precise *215 issue arose in both houses and was the subject of testimony by experts, agency officials and legislators. Throughout the enactment process those individuals consistently referred to drug and alcohol dependency as examples of the personality disorders that are excluded from the statutory term “mental disease or defect.” The examples were repeated in floor debates in the House by the manager of the bill. And the examples were further repeated in the staff measure analysis of the Conference Committee.
In short, there can be no question that the legislature intended alcohol dependency to be a “personality disorder” within the meaning of ORS 161.295(1) and thus not a “mental disease or defect” within the meaning of ORS 161.295(1) or ORS 161.341(4)(a).
The majority does not apply the interpretive analysis required by PGE in assigning a meaning to the terms “personality disorder” and “mental disease or defect.” Instead, the majority reasons that, although the terms are not defined by statute, they are defined by administrative rule, and the administrative rule expressly incorporates the provisions of the DSM-IV. That approach, however, is inconsistent with PGE and with basic principles of administrative law.
Administrative agencies may not, by rule, “amend, alter, enlarge or limit the terms of a statute.” Cook v. Workers’ Compensation Department, 306 Or 134, 138 , 758 P2d 854 (1988). Agency rules always are subordinate to judicial ascertainment of the intended meaning of statutory terms, at least unless the rules define terms that “express non-completed legislation which the agency is given delegated authority to complete.” Springfield Education Assn. v. School Dist., 290 Or 217, 228 , 621 P2d 547 (1980). No party to this case has suggested that the statutory terms at issue in this case are delegative. And, in any event, the legislative history clearly demonstrates that the legislature’s intentions were to the contrary: The legislature had a specific list of diagnoses in mind when it enacted what is now ORS 161.295(1). Thus, the administrative rule, promulgated long after enactment, does not establish what the legislature intended the statute to mean.
*216 The majority refers to the Supreme Court’s decision in Mueller for support. In Mueller , however, the court addressed a different issue and said only that the version of the DSM in effect at the time of enactment may be referred to for “guidance,” because it was apparent that the legislature generally relied on that reference work with respect to the terms at issue. The court did not address the issue raised in this case — namely, that the legislature did not in fact rely on the then-current version of the DSM with respect to the proper classification of alcohol dependency — and the court did not preclude examination of the statute and its enactment history to resolve that issue. 2
In this case, the Board accepted expert testimony that petitioner suffers from alcohol dependency. The Board concluded that the diagnosis constitutes a mental disease or defect, not a personality disorder, because the diagnosis is so categorized in the DSM-IV. In my view, the Board erred. The legislature intended that alcohol dependency be regarded as a personality disorder, not a mental disease or defect. Therefore, I would reverse the Board’s order and remand for reconsideration. From the majority’s decision to the contrary, I respectfully dissent.
Warren, J., joins in this dissent.
Consistent with that inference, the court cited in support of its conclusion State v. Huntley, 302 Or 418, 431-36 , 730 P2d 1234 (1986), in which the court more explicitly relied on the legislative history in explaining the relationship of the DSM to the various determinations that are required under ORS chapter 161. Mueller, 325 Or at 339 .
Thus — -and contrary to the majority’s reading of the decision — the court’s opinion in Mueller did not rest on the text alone. The court did not examine the *211 legislative history, it is true. But that is because it already had done so, explicitly and extensively, in prior cases.
Even assuming, for the sake of argument, that the majority correctly reads Mueller , its reliance on the DSM-IV is inappropriate, because the DSM-IV was not published until long after the relevant statutes were enacted. The court countenanced reliance only on the version on which the legislature relied. Mueller, 325 Or at 339 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9535767. Public record. Not legal advice.