BAKER v. MARTIN

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Court of Appeal, Third District, California.

Joseph H. BAKER, as District Attorney of San Joaquin County, etc., Petitioner and Appellant, v. Henry Bud MARTIN, Jr., Objector and Respondent. (And four other cases.) *

Civ. 18229.

Decided: December 17, 1979

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Arnold O. Overoye, Asst. Atty. Gen., and Gregory W. Baugher and Jana L. Tuton, Deputy Attys. Gen., for petitioner and appellant. Robert N. Chargin, Public Defender, Jack Rosenberg, Rodney A. Schwarz and Lester C. Adelman, Deputy Public Defenders, for objectors and respondents.

This case involves petitions for the commitment of five persons to the state hospital, each of whom was considered developmentally disabled1 and had been residing in the Stockton State Hospital either voluntarily or as a nonprotesting resident for varying lengths of time without judicial commitment. We examine the constitutionality of the statutorily prescribed admission procedure for adult mentally retarded persons. For the reasons which follow, we conclude that the admission procedures for nonprotesting mentally retarded persons not under conservatorship are unconstitutional.

I

In April, May and June 1978, the district attorney for San Joaquin County filed separate commitment petitions in the superior court pursuant to former Welfare and Institutions Code sections 6513 and 6514 alleging that each respondent was “a person developmentally disabled and that he (she) is not capable of providing for his (her) basic personal needs for food, clothing, and shelter, and is not able to protect himself (herself) from ordinary threats to life, health or safety and is not willing to accept suitable care and treatment on a voluntary basis.”

Each respondent, represented by the public defender, filed a demurrer on the sole ground that Welfare and Institutions Code sections 6513 and 6514 are “both facially unconstitutional and are part and parcel of a statutory scheme which effectively deprives respondent and others similarly situated of their constitutional rights.”2

The trial court sustained each demurrer without leave to amend.3

Although the legal basis of each petition was the same and dealt with voluntary or nonprotesting residents of the state hospital who had expressed a desire to leave, the factual situation of each respondent was somewhat different. Henry Martin was 42 years of age, a resident of the hospital and had an I.Q. of 12 with no understandable speech. He had walked away from the hospital, which act the staff interpreted as a request for release under Welfare and Institutions Code section 6513.

Danny Crain had right hemiplegia. He was about 30 years of age. He was hard of hearing. He used a wheelchair and crab walker and was unable to groom or bathe himself. He was also self-abusive at times and aggressive to his peers and to the staff.

Stanley Zimmer was 23 years of age. He was mentally retarded due to encephalopathy from an injury. His I.Q. was 47 and his mental age was seven years, eight months. He suffered nightly incontinence and had sensory-motor deficits. He was assaultive toward the hospital staff. His lack of coordination placed him in jeopardy when he was outside and he was recently almost run down by an automobile.

Mary Lou White was about 31 years of age. She suffered from “temper tantrums” which included refusal to get out of bed, eat meals or care for herself physically. She would hit and bite herself and threaten others, sometimes actually striking them. She too was at times incontinent.

Daniel Yarbrough was 19 years old. He was “gravely disabled” in that he could not purchase his own clothing, handle his own funds or maintain community living. His medical diagnosis was mental retardation associated with diseases and conditions due to intoxication and encephalopathy (congenital).

All the above respondents had requested in one manner or another to leave the hospital.

In sustaining the demurrers without leave to amend, the trial court found Welfare and Institutions Code sections 6513 and 6514 to be unconstitutional on grounds of violation of due process and equal protection of the laws. It also found unconstitutional other provisions of law relating to the procedures for commitment of developmentally disabled persons, particularly those provisions of Welfare and Institutions Code sections 4803 and 4825 (formerly Health & Saf.Code, ss 38453 and 38500) which permit hospitalization of such persons by their parents and the local regional health centers without a judicial hearing. Therefore, the court ordered each respondent to be released within 30 days unless the state followed a procedure outlined by the court, consisting of a judicial hearing on three issues: (1) their developmental disability; (2) the need to be retained in Stockton State Hospital; and (3) the availability of a suitable but less restrictive placement.

On appeal the People concede the unconstitutionality of Welfare and Institutions Code sections 6513 and 6514 on the basis of a violation of equal protection of the laws. This concession requires no discussion or analysis on the part of this court in light of the fact that the exact point had been decided two months prior to the trial court's decision in North Los Angeles County Regional Center v. Jarakian (1978) 84 Cal.App.3d 157, 148 Cal.Rptr. 296. (Original title: In re Jarakian.) The court in Jarakian, in a decision with which we agree, held that former Welfare and Institutions Code sections 6513 and 6514 violated the equal protection provisions of the California and United States Constitutions because those statutes established a different and unjustifiably less exacting standard for commitment of developmentally disabled persons who were already residents of a state hospital than that provided for such persons who were not residents of the hospital. In short, under these statutes residents could be committed if they were helpless while nonresidents were commitable only if they were dangerous.4

In light of the Jarakian decision and the concession of the People, it is plain that the ruling of the trial court on the demurrers was proper insofar as it relates to the unconstitutionality of former Welfare and Institutions Code sections 6513 and 6514.5 However, the reason for this appeal by the People is the Ratio decidendi behind the trial court's ruling and the scope of that ruling which the trial court incorporated into a carefully reasoned written decision of 69 pages. The trial court analyzed and discussed at length the propriety, validity and constitutionality of the Initial voluntary or nonprotesting admission of respondents to the state hospital under the statutory pattern for such admissions established by the Legislature. It concluded the initial admission procedure did not comport with due process of law.

The only basis upon which issues of validity of the original nonjudicial voluntary or nonprotesting admission of respondents to the state hospital under existing law could be derived in a procedural sense from the pleadings in this matter would be a reliance on the very broad language in each of the identical five demurrers. While the points and authorities filed in support of these demurrers touched upon the original admission procedure, the main thrust was directed at the two sections (ss 6513 and 6514) under which judicial commitment of respondents was sought. The petitions for commitment in each case sought one thing only, namely, that respondents be judicially committed pursuant to Welfare and Institutions Code sections 6513 and 6514.

The public defender, by means of broadly worded demurrers, sought to widen the scope of the issue and the trial court obliged by assaying the entire statutory pattern relating to hospitalization of developmentally disabled persons. At the outset of its written decision, the trial court made it plain that it was using the demurrers as the basis for its undertaking “an Augean task of analyzing the constitutionality of the whole statutory system of putting the ‘developmentally disabled’ (i. e. mental retards) in State Hospitals.” The sum and substance of the trial court's holding is that the entire legislative system on the subject was unconstitutional as it existed at the time of the ruling.

The Attorney General correctly notes that respondents' original admissions were not directly placed in issue by the petitions and that the trial court's expansive opinion was unnecessary to the decision.

Normally a memorandum opinion is not the vehicle for the decision of a trial court and neither its conclusions nor its reasoning furnish any basis for attack on an otherwise correct order. (See 6 Witkin, Cal. Procedure (2d ed. 1971), Appeal, s 230, pp. 4220-4221.) However, because the opinion Was the decision of the trial court and its orders are inextricably interwoven and because that court has undertaken, in the words of the Attorney General, “to review, critique and rewrite, for the San Joaquin County at least, the entire legislative scheme for the commitment of developmentally disabled persons” he urges that we reverse that portion of the opinion (decision) invalidating the admission procedures for state hospitals.

II

Because this issue will recur and because of the broad public interest in the operation of our state hospitals and, more critical still, because our institutionalized but uncommitted mentally disabled citizens may lack the comprehension to request their release, we reach the constitutionality of the admission procedures. (Tracy v. Municipal Court (1978) 22 Cal.3d 760, 763, 150 Cal.Rptr. 785, 587 P.2d 227; In re Bye (1974) 12 Cal.3d 96, 99, 115 Cal.Rptr. 382, 524 P.2d 854; In re Law (1973) 10 Cal.3d 21, 23, 109 Cal.Rptr. 573, 513 P.2d 621.)

We conclude that the statutory procedure for admitting nonprotesting mentally retarded persons who are not under conservatorship is facially unconstitutional.6 That procedure, contained in Welfare and Institutions Code sections 4803 and 4825, operates to deprive those mentally retarded persons of their fundamental constitutional right to freedom by permitting their indeterminate, and perhaps permanent, incarceration in a state institution without according them procedural due process of law.

Section 4825 permits “the admission of an adult developmentally disabled person to a state hospital . . . upon the application of the person's parent or guardian or conservator7 in accordance with the provisions of Sections 4563 (relating to funding) and 4803.” Section 4803 requires that a regional center recommend approval of the application for admission and that an “employee or designee” of the center certify that neither the person recommended for admission to the state hospital nor any person on his behalf “has made objection” to the admission. Section 6000.5 authorizes a state hospital for the mentally retarded to accept such a nonprotesting person who has been so “referred in.”

Personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions. (People v. Olivas (1976) 17 Cal.3d 236, 251, 131 Cal.Rptr. 55, 551 P.2d 375.) Accordingly, “due process requires a judicial hearing whenever the State seeks to deprive an adult of his liberty by committing him to a mental hospital.” (In re Roger S. (1977) 19 Cal.3d 921, 939, 141 Cal.Rptr. 298, 309, 569 P.2d 1286, 1297.) The procedure authorized by Welfare and Institutions Code sections 4803 and 4563 constitutes a de facto commitment without judicial review.

In In re Roger S., supra, 19 Cal.3d 921, 141 Cal.Rptr. 298, 569 P.2d 1286, the Supreme Court held that a similar admission procedure for minors violated their right to procedural due process. There the constitutionally invalid procedure permitted the institutionalization of mentally disordered or retarded minors of 14 years or more upon the application of their parents, guardians or legal custodians. Since the liberty interest of a minor is less than that of an adult (Planned Parenthood of Cent. Mo. v. Danforth (1976)428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788, 808), it follows a fortiori that such a defective procedure is unconstitutional when applied to an adult.

The Attorney General argues that nonobjecting mentally retarded admittees are accorded due process because they cannot be admitted without a referral by a regional center or if they object, and because they have a right to request their release. We find that argument unpersuasive. The unidentified “employee or designee” of the center who recommends admission need not be a psychiatrist or clinical psychologist and, as the trial court noted, often is a social worker.8 The right of an uncomprehending mentally retarded patient to object to his admission or to request his release is obviously a chimerical one. Moreover, the failure of a mentally retarded person to object to his admission can only be construed as a legal euphemism for waiver. As the trial judge trenchantly observed, “Only an ostrich would believe that a (developmentally disabled person) as defined in the Code has the mental capacity to understand and make a waiver of this complexity.”

Moreover “(t)o be truly voluntary and intelligent in a constitutional sense such a waiver should be made only if the (admittee) is aware of his rights and the consequences of the waiver, including the nature of the commitment, its probable duration, and the treatment regimen.” (In re Roger S., supra, 19 Cal.3d at p. 938, fn. 10, 141 Cal.Rptr. at p. 308, n.10, 569 P.2d at 1296, n.10.)9 We conclude, therefore, that the mere failure to object by a person whose mental faculties are severely impaired cannot be interpreted as a constitutionally valid waiver.

Finally, the Attorney General argues that a requirement for judicial commitment for mentally retarded persons would infringe upon their right to receive beneficial care and treatment. That argument misses the point. The question is not whether they will receive care and treatment; it is where they will receive that care.

Welfare and Institutions Code section 4507 provides: “Developmental disabilities alone shall not constitute sufficient justification for judicial commitment. Instead, persons with developmental disabilities shall receive services pursuant to this division. Persons who constitute a danger to themselves or others may be judicially committed if evidence of such danger is proven in court.” The Legislature has further declared that developmentally disabled persons have a “right to treatment and habilitation services. . . . Such services shall protect the personal liberty of the individual and shall be provided with the least restrictive conditions necessary to achieve the purposes of treatment.” (Welf & Inst.Code, s 4502, subd. (a).) As these statutes make clear, it is not necessary for mentally retarded persons to be confined in a state hospital in order to receive care and treatment.

Respondents and those similarly situated nonprotesting hospital residents should not be retained in the state hospital in the absence of placement by a conservator or of judicial commitment. They are not, however, entitled to an immediate release from the hospital. As the Supreme Court concluded in In re Roger S., supra, 19 Cal.3d at page 940, 141 Cal.Rptr. at page 310, 569 P.2d at page 1298, with respect to minors, “(a) precipitous release of these children to families and community facilities unprepared to care for them could be both destructive to the treatment program and potentially harmful to the child and the community.” For the same reason, adult mentally retarded persons admitted under the flawed constitutional procedure should also not be precipitously released. Respondents and all other similarly situated nonprotesting mentally retarded hospital inmates are, however, entitled to a prompt judicial hearing. In the absence of any other statutory procedure, that hearing shall be conducted pursuant to the provisions of Welfare and Institutions Code section 4801. In the future, no mentally retarded person may be accepted10 in a state hospital unless he has been judicially committed under section 6509, has volunteered pursuant to section 6000, subdivision (a), or has been placed there by his conservator pursuant to section 4825.

The judgments are affirmed.

I concur with that portion of the majority opinion which holds unconstitutional former Welfare and Institutions Code sections 6513 and 6514.

I dissent from the remainder of the opinion. Like the trial court in its extraordinary 69-page written decision, the majority has sallied forth utterly gratuitously to do battle with the entire statutory procedure for admitting to state hospitals voluntary and nonprotesting mentally retarded persons who are not under conservatorship. They find that such statutes (with inconsequential footnoted exceptions) are “facially unconstitutional” on the basis of lack of procedural due process of law.

It must be remembered that the issue in the cases below as presented in the petitions was initially much more restricted. The petitions were for the Present judicial commitment of five persons to the state hospital, each of whom had been residing for varying periods of time in that hospital under earlier voluntary or nonprotesting commitment procedures. The demurrers to the petitions sought to widen the scope of the issues and the trial court in its written decision made it plain it was using the demurrers as the basis for what it described as “an Augean task of analyzing the constitutionality of the whole statutory system of putting ‘developmentally disabled’ (i. e. mental retards) in State Hospitals.”

The Original hospital admissions of these five respondents (let alone those of the thousands of others affected by the majority opinion) were not placed in issue by the petitions and the trial court's extensive opinion was unnecessary to its decision. The petitions for commitment in each case sought only one thing judicial commitment of These five respondents pursuant to Welfare and Institutions Code sections 6513 and 6514. This is Not a class action.

Broad rulings on constitutional grounds should not be made except where absolutely necessary to the case before a court. Judicial self-restraint and avoidance of unnecessary decisions are fundamental axioms of good jurisprudence, particularly in an area as basic as constitutional law. (See 13 Cal.Jur.3d, Constitutional Law, s 57, pp. 106-108.) Accordingly, the constitutionality of a statutory provision should not be considered where its invalidity is not clearly a proper question to be raised in the proceeding and unless the issue is squarely presented by a person subjected to its operation. (People v. Victor (1965) 62 Cal.2d 280, 295, 42 Cal.Rptr. 199, 398 P.2d 391; see, also, In re Dare (1917) 176 Cal. 83, 168 P. 19; Estate of Monks (1941) 48 Cal.App.2d 603, 615, 120 P.2d 167, cf. Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65-66, 195 P.2d 1.)

I agree with the People, who argue on appeal that the trial court went far beyond the scope of the issues properly before it. Normally a memorandum opinion is not the decision of a trial court and neither its conclusions nor its reasoning furnish any basis for attack on an otherwise correct judgment or order. (See 6 Witkin, Cal. Procedure (2d ed. 1971), Appeal, s 230, pp. 4220-4221.) However, where, as here, the ruling of the court and the final judgment itself is inextricably contained within the body of that document, this procedural device used by that court has caused the People to assert that the trial court has, in effect, undertaken “to review, critique and rewrite . . . the entire legislative scheme for the commitment of developmentally disabled persons.” I agree. It therefore is not only proper but necessary, in my view, to declare the rulings of the trial court, as contained in its memorandum decision, to be outside the scope of the issues before it and accordingly null and void, other than those portions of the ruling and judgment relating to Welfare and Institutions Code sections 6513 and 6514.

FOOTNOTES

FOOTNOTE.  

1.  Welfare and Institutions Code section 4512, subdivision (a), defines “developmental disability” to mean “a disability which originates before an individual attains age 18, continues, or can be expected to continue, indefinitely, and constitutes a substantial handicap for such individual. As defined by the Director of Developmental Services, in consultation with the Superintendent of Public Instruction, this term shall include mental retardation, cerebral palsy, epilepsy, and autism. This term shall also include handicapping conditions found to be closely related to mental retardation or to require treatment similar to that required for mentally retarded individuals, but shall not include other handicapping conditions that are solely physical in nature.”

2.  Welfare and Institutions Code section 6513 read as follows in its entirety at all pertinent times:“Any developmentally disabled person residing in a state hospital who has not been judicially committed shall be considered a nonprotesting resident of a state hospital or a voluntary resident if the person has given informed consent to his admission. For the purposes of this article, the State Department of Health shall establish regulations to define informed consent.“Developmentally disabled, nonprotesting or voluntary residents may leave a state hospital at any time after they, or their parent or legal guardian or conservator, request a discharge and complete state hospital discharge procedures.“The state hospital's discharge procedures for any resident may require an assessment, by an appropriate regional center, of the resident's condition, if in the opinion of the chief clinical director of the state hospital immediate release of the resident may result in serious personal harm to the resident.“Whenever the state hospital discharge procedure for a resident requires assessment by a regional center, the resident shall continue to reside in the state hospital until such assessment is completed. The regional center shall complete its assessment of the condition of such persons within 14 days of receiving a request for assessment. In conducting its assessment, the regional center shall solicit information, advice, and recommendations of state hospital personnel familiar with medical, social and other needs of the person being assessed, and the person's parents or legal guardian or conservator.“For those persons found by a regional center to no longer require state hospital care, the person shall be released, and, if necessary, the regional center shall immediately prepare and administer an individual program plan pursuant to Sections 38215 and 38216 of the Health and Safety Code for the provision of appropriate alternative services outside the state hospital.“For those persons found to be in continued need of state hospital care, the regional center shall either readmit such persons as voluntary residents of the state hospital, pursuant to the provisions of Section 38453 of the Health and Safety Code, or request the district attorney or the county counsel, when the board of supervisors has delegated such duty pursuant to Section 6519, to file a petition seeking commitment to the State Department of Health of those persons for whom commitment is believed to be more appropriate than voluntary placement.“The parent, guardian, conservator, or any person designated for that purpose by the judge of the court may also request the district attorney or the county counsel, when the board of supervisors has delegated such duty pursuant to Section 6519, to file a petition for commitment.”Section 6514 read as follows:“Whenever a petition for commitment of a person is filed pursuant to the provisions of Section 6513, judicial review shall be in the superior court for the county in which the state hospital is located. The person shall be informed of his right to counsel by a member of the staff of the state hospital, and by the court; and if he does not have an attorney for the proceedings, the court shall immediately appoint the public defender or other attorney to represent him in the proceedings. The person shall pay the costs of such legal service if he is able.“At the time the petition for commitment is filed with the court, the clerk of the court shall transmit a copy of the petition, together with notification as to the time and place of an evidentiary hearing in the matter, to the parent, guardian, or conservator of the person and to the director of the appropriate regional center and the state hospital. Such notice shall be sent by registered or certified mail with proper postage prepaid addressed to the addressee's last known address and with a return receipt requested.“The court shall either release the person or order an evidentiary hearing to be held not sooner than five judicial days nor more than 10 judicial days after the petition and notice have been mailed to the person's parent, guardian, or conservator and to the director of the appropriate regional center and state hospital.“If the court finds (a) that the person requesting release or for whom release is requested is not developmentally disabled, or (b) that the person is developmentally disabled and is able to provide safely for his basic personal needs for food, shelter, and clothing, and is able to protect himself from ordinary threats to life, health or safety, he shall be immediately released.“Notwithstanding the provisions of Section 6500.1 of the Welfare and Institutions Code, if the court finds that the person is developmentally disabled and that he is not capable of providing for his basic personal needs for food, clothing, and shelter, and is not able to protect himself from ordinary threats to life, health, or safety, and is not willing to accept suitable care and treatment on a voluntary basis, the person may be committed to the State Department of Health for suitable care and treatment.“For the purposes of this section, the legal status of minority does not, in itself, render a person incapable of providing for his basic personal needs for food, clothing, shelter and self-protection from ordinary threats to life, health, or safety.“For the purposes of this section, suitable care and treatment is defined as the least restrictive residential placement necessary to achieve the purposes of treatment. Care and treatment of a person committed to the State Department of Health under this section may include placement in any state hospital, any licensed community care facility as defined in Section 1504, or any health facility as defined in Section 1250.“Commitment under this section shall be for a period not to exceed one year. The State Department of Health may petition for renewed commitments under this section if such petition is made to the superior court at least 30 days prior to the termination of existing commitment.“Nothing in this section shall be construed to prevent the voluntary admission of developmentally disabled persons to state hospitals pursuant to Section 38221 or involuntary commitment of dangerous persons under Section 6500.1 of the Welfare and Institutions Code.“If in any proceeding under this section, the court finds that the person is developmentally disabled and has no parent, guardian, or conservator, and is in need of a guardian or conservator, the court shall order the appropriate regional center or the state department to initiate, or cause to be initiated, proceedings for the appointment of a guardian or conservator for the developmentally disabled person.”

3.  Although the record does not contain formal judgments of dismissal, the portion of the trial court's written decision in which the demurrers are sustained also contains language which we interpret as judgments of dismissal, from which the People have formally appealed and which are so treated by both parties in this appeal.

4.  Under former section 6514, a resident could be judicially committed if he is “not capable of providing for his basic personal needs for food, clothing, and shelter, and is not able to protect himself from ordinary threats to life, health or safety . . . .” On the other hand, a nonresident can be judicially committed only if “he is a danger to himself or others.” (Welf. & Inst.Code, s 6500; see also Welf. & Inst.Code, s 4507.)

5.  We note that effective January 1, 1979, Welfare and Institutions Code sections 6513 and 6514 were repealed by the Legislature and therefore both “resident” and “nonresident” developmentally disabled persons can now be judicially committed only under the dangerousness standard of Welfare and Institutions Code section 6500.

6.  Our holding does not affect the procedures for admission of those defined as developmentally disabled who are afflicted with cerebral palsy, epilepsy or autism. (See s 4504.)

7.  A conservator appointed under the Lanterman-Petris-Short Act for a gravely disabled person may, if authorized by court order, place his conservatee in a state hospital. (s 5358.) Because those conservators are judicially appointed (s 5350) and are subject to annual judicial review on petitions for reappointment (s 5362), we conclude that mentally retarded conservatees may constitutionally be placed in a state hospital as a nonprotesting resident pursuant to section 4825. For the same reason, our holding does not affect placements by a conservator appointed pursuant to article 7.5 (commencing with s 416), chapter 2, part 1, division 1, of the Health and Safety Code.

8.  We note that the United States Supreme Court in Parham v. J. R. (1979) —-U.S. ——, 99 S.Ct. 2493, 61 L.Ed.2d 101, held that due process does not require either a formal or judicial hearing prior to the voluntary commitment of minors to a mental institution by their parents or guardians. Instead, the Court concluded that due process was satisfied by an informal medical inquiry conducted by a neutral physician followed by a periodic review of the child's continuing need for commitment. Even assuming that Parham applies to adults, the California statutory provisions relating to the admission of nonprotesting developmentally disabled persons do not comport with those minimum due process requirements.

9.  Our holding does not affect voluntary admission under Welfare and Institutions Code section 6000, subdivision (a). That subdivision authorizes applications for admissions to be “made voluntarily by the person, at a time when he is in such condition of mind as to render him competent to make it . . . .” We conclude that those borderline mentally retarded persons competent enough to make a voluntary application are also competent enough to request a hearing by writ of habeas corpus for their release under section 4800.

10.  We note that pending a hearing an alleged mentally retarded person may temporarily be placed in a state hospital. (Welf & Inst.Code, s 6506.) Our decision does not affect that temporary placement.

SPARKS,* Associate Justice. FN* Assigned by the Chief Justice.

REYNOSO, J., concurs.

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