A person who is gravely disabled as a result of a mental health disorder can become the subject of a conservatorship under California’s Lanterman-Petris-Short Act (“LPS Act”). In the May 2020 opinion of Conservatorship of J.Y., the Court of Appeal of California, First Appellate District, Division Two, considered whether a conservatee has a constitutional equal protection right not to testify against themselves in a conservatorship proceeding.
The Facts of Conservatorship of J.Y.
Appellant was placed in a conservatorship in 2004. Respondent, The Contra Costa County Public Guardian, has been appointed as conservator of appellant’s person every year from 2004 to December 2017.
In November 2018, Respondent filed a petition for reappointment as conservator of appellant’s person. Appellant objected to the petition and requested a jury trial. Appellant also objected to being called as a witness, arguing that such compelled testimony would violate her due process and equal protection rights.
The California court overruled appellant’s objection, finding that the proceedings were civil in nature, and no Fifth Amendment right exists as in criminal proceedings. The court also stated that the trier of fact has to observe the physical and mental presentation that the proposed conservatee exhibits.
A jury trial was held, and appellant testified in respondent’s case in chief. The jury found that appellant was gravely disabled due to a mental disorder, and the court entered an order reappointing respondent as conservator of appellant’s person. Appellant appealed the order.
The conservatee’s one-year conservatorship terminated during the pendency of the appeal. The California appellate court exercised its discretion to address the issue on the merits based on the continuing public importance of the issue, its likely continuing impact on the conservatee, and the inherent difficulty of resolving such an appeal before the expiration of a one-year conservatorship.
What Is The LPS Act In California?
The LPS Act authorizes the appointment of a conservator “for a person who is gravely disabled as a result of a mental health disorder…” Welf. & Inst. Code, s 5350.
“Gravely disabled” is defined as:
“[a] condition in which a person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter.” (§ 5008, subd. (h)(1)(A).) Under section 5350, subdivision (e)(1), “a person is not ‘gravely disabled’ if that person can survive safely without involuntary detention with the help of responsible family, friends, or others who are both willing and able to help provide for the person’s basic needs for food, clothing, or shelter.”
Does An LPS Conservatee Have A Constitutional Equal Protection Right Not To Testify Against Themselves In A California Conservatorship Proceeding?
There are two inquiries to determine whether a meritorious equal protection claim exists.
The first prerequisite to a meritorious claim is “a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.”
The second step is determining whether there is a sufficient justification for the unequal treatment.
There is no constitutional right to refuse to testify in civil proceedings, including LPS commitment proceedings. However, the California Supreme Court has held that NGI’s (persons found not guilty by reason of insanity) have a statutory right, pursuant to the California Penal Code to refuse to testify in civil commitment extension proceedings, stating: ‘The right not to be compelled to testify against oneself is clearly and relevantly implicated when a person is called by the state to testify in a proceeding to recommit him or her even if what is said on the witness stand is not per se incriminating.’
A number of courts have found that mentally disordered offenders (MDO) and sexually violent predators (SVP) are similarly situated to NGI’s under the equal protection clause for purposes of the right against compelled testimony. In this case, appellant argued that LPS conservatees are similarly situated to NGI’s for purposes of whether they may be compelled to testify against oneself. Two cases from California’s Fifth Appellate District addressed this question and came to two different conclusions.
In Conservatorship of Bryan S. (2019), District One rejected the argument that LPS conservatees are similarly situated to NGI’s for purposes of the right not to testify against oneself, because LPS conservatees need not have been found to have committed a crime or be a danger to others. The court found that a prospective conservatee is, in many cases, a person in dire need of the state’s assistance, and the purpose of the LPS Act is to provide prompt evaluation and treatment.
In Conservatorship of E.B. (2020), Division Five held that LPS conservatees are similarly situated with NGI’s and with individuals subject to other involuntary civil commitments for purposes of the right against compelled testimony.
In this case, the California appeals court quoted at length from E.B., stating:
“It is not a reasonable distinction to say that individuals who have not engaged in criminal conduct can be required to testify against themselves in a trial to determine whether they might be committed against their will when a person whose commitment is linked to his criminal conduct can elect to remain silent. At least, the nature of the commitment requires a finding that the groups are similarly situated for purposes of requiring the state to justify this disparate treatment.
“The primary benefit of allowing compelled testimony in a case involving involuntary commitments is that it produces a more accurate verdict by allowing the trier of fact to observe firsthand the demeanor of the person the state seeks to commit. [Citations.] This interest in an accurate verdict exists in all involuntary commitment schemes—indeed, it might be argued that the interest is even greater when the mental illness results in the person being a danger to others.”
The court concluded that LPS conservatees are similarly situated to NGI’s for purposes of the right against compelled testimony because they too are subject to the possibility of “an unbroken and indefinite period of state-sanctioned confinement.”
Is There A Justification For Disparate Treatment of California LPS Conservatees?
In involuntary civil commitment cases, the state of California must establish that it has a compelling interest that justifies the law.
Here, the respondent argued that the disparate treatment is necessary to further this purpose: “the custodial care, diagnosis, treatment and protection of persons who are unable to take care of themselves and who for their own well being and the safety of others cannot be left adrift in the community’.
In rejecting this argument, the court stated:
This argument, however, does not distinguish between the need for truth in LPS conservatorship proceedings and proceedings involving NGI’s, MDO’s, and SVP’s. Indeed, as the court in E.B. observed, the interest in an accurate verdict is arguably greater when a committee’s mental illness results in the person being a danger to others. (E.B., supra, 45 Cal.App.5th at pp. 997–998 [finding that “the public guardian made no showing that appellant’s compelled testimony was any more necessary in the proceeding to declare appellant an LPS conservatee than it would have been in other types of civil commitment proceedings”].) Thus, while we do not disagree that LPS conservatees differ in some ways from those subject to involuntary civil commitments due to their criminal history and dangerousness, respondent has not yet offered a compelling reason why LPS conservatees’ procedural protections should not include the right against compelled testimony.
Therefore, the court concluded that LPS conservatees have a constitutional equal protection right not to testify against themselves in California conservatorship proceedings.