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Court of Appeal, First District, Division 1, California.

IN RE: the CONSERVATORSHIP OF EUGENE L., Appellant. The PEOPLE of the State of California, Plaintiff and Respondent, v. EUGENE L., Defendant and Appellant.

AO 18697.

Decided: October 24, 1983

Sheila Brogna, Legal Services for Children, Inc., San Francisco, for defendant and appellant. Arlo Smith, Dist. Atty., Mercedes U. Moreno, Asst. Dist. Atty., San Francisco, for plaintiff and respondent.

Appellant is a 14-year-old deaf boy, suffering from a developmental disorder, who has been a ward of the juvenile court since birth.   He has been unsuccessfully placed with various families, the latest as the foster child of Charles and Ann Collins for the past six years.

On March 21, 1982, the Collins found themselves unable to care for appellant, even after he received substantial outpatient treatment, and thus institutionalized him at McAuley Neuropsychiatric Hospital in San Francisco (hereinafter “McAuley”).   He was held there involuntarily under a 72-hour emergency evaluation (Welf. & Inst.Code, § 5150,1) and then for 14 days of intensive treatment (§ 5250).

Thereafter, a petition and recommendation for a temporary conservatorship of appellant was filed by respondent in superior court on April 6, 1982, supported by the sworn affidavit of Dr. Robert Hines which specified the following reasons for the requested conversatorship:  appellant's unwillingness to accept treatment;  his threats to escape and leave the hospital;  the difficulty in treating him;  his threats to the staff and other patients;  injuries inflicted by him upon two staff members;  and his unacceptable conduct when left unsupervised, which included taking off his clothes, inserting objects in his rectum and smearing feces on himself.   Once the petition was filed, appellant remained at McAuley (§ 5352.2).

On April 8, 1982, an ex parte order was granted appointing a temporary conservator for appellant.   A hearing on the petition for conservatorship was scheduled for May 6, 1982—28 days after the order granting the temporary conservatorship—and the public defender for the City and County of San Francisco was appointed as counsel for appellant.

On April 29, appellant was transferred to the children's unit of Napa State Hospital in Imola, California (hereinafter “Napa”).

According to customary court practice agreed upon by the public defender, superior court coordinator Ted Jury expected appellant's conservatorship hearing to be rescheduled for May 13, 1982, with the other Napa proceedings.   But on May 5, Jury learned that attorneys from Legal Services for Children had been substituted as appellant's counsel, apparently without formally advising the court, and demanded adherence to the May 6 hearing date.

The hearing was called as scheduled on May 6, but respondent failed to produce appellant and was unprepared to present its evidence.   Counsel for respondent requested a continuance, explaining that the state had anticipated a hearing date of May 13 and was consequently unable to procure appellant's presence, obtain a sign language interpreter, complete its investigation or present the testimony of a doctor.   A continuance until May 13 was granted over appellant's objection.

On May 10, 1982, appellant filed a petition for writ of habeas corpus in this court seeking release from his commitment at Napa and an order prohibiting the May 13 hearing, on grounds that his temporary conservatorship had expired by operation of law, thus divesting the superior court of jurisdiction to conduct a hearing on the conservatorship petition (§§ 5352.1 and 5365).   We did not grant the requested relief before the hearing on May 13.

On May 13, the conservatorship hearing was held.   In support of its petition for conservatorship, respondent presented the testimony of Dr. Robert Hines and submitted a report by the conservatorship investigator.

Dr. Hines testified as follows:  Appellant suffers from a pervasive developmental disorder manifested by low frustration tolerance and aggressive or uncontrolled behavior.   His development is extremely impaired, particularly his language skills and educational level.   He is unmanageable in peer groups.   While he is able to eat and digest food, he cannot select food in a manner ensuring he will develop normally.   He generally is “able to dress himself,” but “has been disruptive of clothing while in the hospital and he also has been noncompliant with dressing himself and bathing himself.”   Appellant has repeatedly threatened to run away when agitated, and attempted to do so several times.   He requires one-to-one staffing, close continuing supervision and sometimes physical restraints to prevent his escape.

At the close of the hearing, the conservatorship petition was granted.   Soon thereafter, a letter of conservatorship was signed appointing a designee from the office of mental health and the Collins' as co-conservators and empowering them to place appellant in a state facility for psychiatric treatment.

Appellant complains that the trial court's conservatorship order is void for lack of jurisdiction by reason of respondent's failure to afford him a conservatorship hearing within 30 days as required by law.

Appellant was temporarily confined at McAuley and Napa for more than 30 days without a conservatorship hearing in violation of two provisions of the Landerman-Petris-Short (hereinafter “LPS”) Act.   Section 5352.1 states in part:  “[A]ll temporary conservatorships shall expire automatically at the conclusion of 30 days, unless prior to that date that court shall conduct a hearing on the issue of whether or not the proposed conservatee is gravely disabled ․”  (Emphasis added.)   And section 5365 provides:  “A hearing shall be held on all petitions under this chapter [governing conservatorships for gravely disabled persons] within 30 days of the date of the petition․”

 Appellant's conservatorship hearing was held 35 days after the petition was filed, and he was confined during that entire period, ostensibly pursuant to the temporary conservatorship.   Respondent concedes the violation of the 30-day rule, but, characterizing the statutory time requirements as “directory” rather than “mandatory,” claims the untimely judicial action was nonetheless valid.

In Edwards v. Steele (1979) 25 Cal.3d 406, 158 Cal.Rptr. 662, 599 P.2d 1365, our high court explained that “ ‘․ the “directory” or “mandatory” designation does not refer to whether a particular statutory requirement is “permissive” or “obligatory,” but instead simply denotes whether the failure to comply with a particular step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates.   [Citation.]’  If the failure to comply with a particular procedural step does not invalidate the action taken, as determined by applying certain tests discussed below, the procedural requirement is referred to as ‘directory.’ If, on the other hand, it is concluded that noncompliance does invalidate subsequent action, the requirement is deemed ‘mandatory.’ ․”  (Id., at pp. 409–410, 158 Cal.Rptr. 662, 599 P.2d 1365, quoting Morris v. County of Marin (1977) 18 Cal.3d 901, 908, 136 Cal.Rptr. 251, 559 P.2d 606.)

“[G]enerally, requirements relating to the time within which an act must be done are directory rather than mandatory or jurisdictional, unless a contrary intent is clearly expressed.”  (Edwards v. Steele, supra, 25 Cal.3d at p. 408, 158 Cal.Rptr. 662, 599 P.2d 1365;  People v. Pacini (1981) 120 Cal.App.3d 877, 888, 174 Cal.Rptr. 820.)   But in Edwards, the court also noted that in determining the legislative intent various tests have been employed.  (Edwards v. Steele, supra, 25 Cal.3d at p. 410, 158 Cal.Rptr. 662, 599 P.2d 1365.)  “In some cases focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment.  [Citations.]  Other cases have suggested that a time limitation is deemed merely directory ‘unless a consequence or penalty is provided for failure to do the act within the time commanded.’  [Citations.]”  (Ibid;  see also Garcia v. Los Angeles County Bd. of Education (1981) 123 Cal.App.3d 807, 177 Cal.Rptr. 29.)  “ ‘In order to determine whether a particular statutory provision ․ is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the legislative intent.   In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time․’ ”  (Morris v. County of Marin, supra, 18 Cal.3d 901, 910, 136 Cal.Rptr. 251, 559 P.2d 606.)

Consideration must also be given to whether the time requirement was intended to benefit individuals or was simply designed to serve some collateral, administrative purpose.  (People v. McGee (1977) 19 Cal.3d 948, 963, 140 Cal.Rptr. 657, 568 P.2d 382;  In re Johnson (1980) 107 Cal.App.3d 780, 785, 166 Cal.Rptr. 84.)   And in all cases the history and purpose of the statute must be consulted.  (Garcia v. Los Angeles County Bd. of Education, supra, 123 Cal.App.3d 807, 812, 177 Cal.Rptr. 29;  People v. Pacini, supra, 120 Cal.App.3d 877, 891, 174 Cal.Rptr. 820.)

The legislative intent of the LPS Act, as relevant here, is stated in section 5001 as:  “ ‘(a) To end the inappropriate, indefinite, and involuntary commitment of mentally disordered persons, ․ [¶] (d) To safeguard individual rights through judicial review;  ․’ ”  (In re Steven S. (1981) 126 Cal.App.3d 23, 30, 178 Cal.Rptr. 525.)   Considering the history and background of the LPS Act, the court in Conservatorship of Chambers (1977) 71 Cal.App.3d 277, 282, 139 Cal.Rptr. 357, noted:  “In the field of mental health, state Legislatures have had to choose between ‘the medical objectives of treating sick people without legal delays and the equally valid legal aim of insuring that persons are not deprived of their liberties without due process of law’ ․  After intensive research, our Legislature incorporated these diverse objectives in the LPS.   The statute is designed to provide prompt, short-term, community-based intensive treatment, without stigma or loss of liberty, to individuals with mental disorders who are dangerous to themselves or to others, or who are gravely disabled ․  Although the LPS is more medically oriented than the former commitment statute, the California Legislature enacted procedural safeguards to protect an individual against erroneous commitment [citation].”  (See also In re Steven S., supra, 126 Cal.App.3d at p. 30, 178 Cal.Rptr. 525.)

 Involuntary confinement for mental illness or dangerousness under the LPS Act results in a deprivation of liberty and substantial stigma.   (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 178, 167 Cal.Rptr. 854, 616 P.2d 836;  Conservatorship of Buchanan (1978) 78 Cal.App.3d 281, 288, 144 Cal.Rptr. 241.)   The Act accordingly provides for an elaborate procedural scheme to protect the rights of conservatees.  (Thorn v. Superior Court (1970) 1 Cal.3d 666, 674, 83 Cal.Rptr. 600, 464 P.2d 56.)   Prominent among these are the time requirements.   In addition to the 30-day limit within which a conservatorship hearing must be held after temporary confinement (§§ 5352.1 and 5365), emergency confinement is limited to 72 hours (§ 5150).   An additional certification period for intensive treatment is limited to 14 days, and during such period the patient must be informed of the right to request an immediate judicial hearing by way of petition for writ of habeas corpus (§ 5250).   Even if a conservatorship is ordered, it automatically terminates within one year, with an additional one-year period of confinement permissible without a hearing only upon a petition which includes the opinion of two doctors that the conservatee is still gravely disabled as the result of a mental disorder.  (Conservatorship of Chambers, supra, 71 Cal.App.3d 277, 283, 139 Cal.Rptr. 357.)   And the conservatee may request a rehearing every six months (§ 5364).   In addition, section 5300 mandates 90-day review hearings for any person committed as imminently dangerous, and section 5303 imposes time limitations within which must be held hearings resulting in the commitment of such persons after the filing of a petition.2

 Thus, an overriding concern of the LPS Act, and sections 5352.1 and 5365 in particular, is the protection of the conservatee from undue confinement before a judicial determination of cause.   In our view, the 30-day time limit is not merely a procedural rule designed to aid in administration;  rather, it serves to preserve legitimate and substantial due process rights.

The mandatory intent of the statutes is also revealed in the language used to describe the result of noncompliance.   According to section 5352.1, a temporary conservatorship “shall expire automatically” unless a hearing is held within 30 days, thus indicating that jurisdiction over the conservatee terminates upon passage of the time limit.   Section 5365 also uses the mandatory language “shall,” thereby indicating the mandatory and jurisdictional nature of the 30-day period.  (Garcia v. Los Angeles County Bd. of Education, supra, 123 Cal.App.3d 807, 812, 177 Cal.Rptr. 29;  In re Johnson, supra, 107 Cal.App.3d 780, 785, 166 Cal.Rptr. 84.)

We acknowledge that an untimely hearing does not adversely effect the propriety of the commitment decision.   Appellant received a concededly full and fair hearing.   But the delay contravenes the express purpose of the time limitations.   And given the fundamental concern with the rights of conservatees exhibited in the LPS Act, it is important to deter delay which withdraws protection intended by the time requirements.   We think that invalidating untimely governmental action advances this purpose without unduly interfering with an important societal interest.

In similar cases, statutory time limitations have been found mandatory and jurisdictional.

For instance, in In re Johnson, supra, 107 Cal.App.3d 780, 166 Cal.Rptr. 84, the Community Release Board failed to conduct a serious offender hearing within 120 days from the date of the prisoner's “receipt” as required by Penal Code section 1170.2, subdivision (b).   Characterizing the objective of the 120-day limitation as “to ‘benefit’ prisoners by protecting them against indefinitely prolonged uncertainty as to the duration of their confinement and the devastating effect of the 11th-hour postponements of release dates they had been led to expect,” the court found the delay violative of the statutory intent, and accordingly concluded that the Board's failure to meet the deadline deprived it of jurisdiction to extend the prisoner's sentence.   (Id., at p. 786, 166 Cal.Rptr. 84.)

And in Garcia v. Los Angeles County Bd. of Education, supra, 123 Cal.App.3d 807, 177 Cal.Rptr. 29, the failure of the local school board to afford a student a hearing within 25 school days of suspension as mandated by Education Code section 48914 rendered invalid a subsequent decision expelling him from school.   The pertinent time provisions of the Education Code were considered “matters of substance,” based upon the court's conclusion that students facing temporary suspension have legitimate due process rights to a public education.   After considering the history, purpose and language—particularly use of the word “shall” by which the legislature “evidenced its mandatory intent”—of the statute, the court found the time requirements jurisdictional and invalidated board action taken after an untimely hearing.   (Id. at pp. 812–813, 177 Cal.Rptr. 29.)

We also find persuasive cases which have considered the effect of noncompliance with Penal Code section 1026.5, which directs that petitions to extend the term of a person committed to a state mental hospital upon acquittal of a criminal offense by reason of insanity must be filed within 90 days of expiration of the original commitment term.

In People v. Pacini, supra, 120 Cal.App.3d 877, 174 Cal.Rptr. 820, the 90-day time limit was found mandatory and jurisdictional where the petition was filed after the maximum period of the confinee's confinement had expired, although, as in the present case, he was kept in confinement by a series of temporary orders.  (Id., at p. 891, 174 Cal.Rptr. 820.)   The purpose of the statutory 90-day period was described as to allow the patient sufficient time to prepare a complete defense while insuring that a commitment hearing would be held before expiration of the original term.  (Id., at p. 891, 174 Cal.Rptr. 820.)   In light of such purpose, the court advised that commitment beyond the maximum original term could only be effectuated “under the procedure set forth” in the statute (id., at p. 889, 174 Cal.Rptr. 820), found the time requirement jurisdictional despite the contrary pronouncement in the statute, and invalidated the recommitment order.3  (Id., at p. 891, 174 Cal.Rptr. 820.)

Similarly, in People v. Hill (1982) 134 Cal.App.3d 1055, 185 Cal.Rptr. 64, the petition seeking to extend confinement was filed only a few days prior to expiration of the original commitment period.   Relying upon Pacini, the court found the order extending commitment invalid, explaining:  “We are convinced that it was exactly this type of unseemly haste and unnecessary confinement prior to proof, that led to the enactment of the time limitations specified in section 1026.5.”  (Id., at p. 1059, 185 Cal.Rptr. 64; see also People v. Hawkins (1983) 139 Cal.App.3d 984, 987–988, 189 Cal.Rptr. 126.) 4

 In the case at bench appellant's commitment was unduly prolonged in contravention of the express intent of the statute and, more generally, of the LPS Act.   Significant due process rights were violated, as were the mandatory and clearly stated directives of the applicable statutes.   We accordingly conclude that the 30-day time limit imposed by sections 5352.1 and 5365 is jurisdictional and that its violation by respondent requires that we invalidate the trial court's commitment order.5

 While setting aside an otherwise justifiable commitment order in these circumstances is disheartening, we find it necessary to insure compliance with clear directives implementing important state policies.  (People v. Hill, supra, 134 Cal.App.3d 1055, 1060, 185 Cal.Rptr. 64.)   In so doing, we note that appellant may be lawfully committed upon initiation of new proceedings.   (Ibid.)

Respondent submits, finally, that even if we regard the 30-day time limits of sections 5352.1 and 5365 as jurisdictional, the trial court still possessed inherent authority to continue the hearing to May 13.   We disagree.

 In support of this argument, respondent relies upon criminal cases which have permitted continuance of hearings, upon a showing of good cause, beyond the statutory time limits imposed by Penal Code sections 859b and 1382.  (People v. Romero (1936) 13 Cal.App.2d 667, 671, 57 P.2d 557.)  Sections 859b and 1382 have specific good cause provisions, however, while the statutes at issue here do not.   And our conclusion that the requirements of sections 5352.1 and 5365 are jurisdictional a fortiori precludes any allowance for continuance.   The effect of finding a statutory requirement mandatory or jurisdictional is to invalidate action ultimately taken in violation thereof.  (Edwards v. Steele, supra, 25 Cal.3d 406, 410, 158 Cal.Rptr. 662, 599 P.2d 1365.)   Once the statutory time limit has lapsed the conservatee must be released from temporary commitment until such time as new proceedings are initiated.

The judgment is reversed.

I respectfully dissent.

I agree with much of the reasoning of my colleagues, including their conclusions that “protection of the conservatee from undue confinement” is “an overriding concern of the LPS Act” and that the statutes evidence the Legislature's “mandatory intent” in requiring observation of the time limitations.

I share also my colleagues' concern about “untimely governmental action” and agree that “it is important to deter delay which withdraws” the protection of the time limits.

Notwithstanding such agreement, I arrive at a different result due to the unusual circumstances of this case.   These include the description in Dr. Hines' affidavit of the peculiar and severe problems appellant presents to his own safety and welfare as well as to others in contact with him, summarized in the majority opinion.   That opinion also summarizes Dr. Hines' testimony at the May 13, 1982, hearing, including his opinion that appellant “requires one-to-one staffing, close continuing supervision and sometimes physical restraints to prevent his escape.”   Based upon such evidence, the trial court granted the conservatorship petition.

While there appears to be some uncertainty whether denial of the conservatorship petition would have resulted in appellant's return to a detention facility maintained by the juvenile authorities or to a facility maintained by the Department of Mental Health, the evidence is overwhelming that appellant needs the type of care provided him by the children's unit of Napa State Hospital.   The purpose of the conservatorship petition was so that such care could continue.   And, “prompt evaluation and treatment,” the provision of “individualized treatment, [and] supervision,” and protection of “public safety” are stated purposes of LPS (Welf. & Inst.Code, § 5001, subds. (b), (e), and (c)).

In combination with appellant's serious condition and need for specialized care are the unusual circumstances which led to continuance of the initial hearing beyond the statutory 30 days:  Past, “customary” practice agreed upon by the San Francisco public defender, respondent, and the superior court coordinator, called for continuance of the original hearing date (within the statutory 30 days) to the later date (beyond the 30 days).   The public defender was appellant's attorney and it was not until the day before the original date for hearing that the court coordinator and respondent were told that appellant's present attorney had been substituted in.   At that time, the new (and present) attorney insisted upon adherence to the original date.   When the matter was called the next day, on the original date, respondent was unprepared and had failed to produce appellant.   The trial court, therefore, ordered the continuance.

I certainly agree that the 30-day limit should be observed and that the “customary” practice was unauthorized.   That practice was, however, participated in by appellant's previous attorney;  and, the new attorney's arrival and demand were so late as to make compliance with the time limit impossible.

Under these limited circumstances, I believe we should affirm the judgment.   To do otherwise will harm no one but appellant himself.   In addition, while appellant's minority apparently assures that he will remain in some type of custodial care, if he were an adult he would be turned out on the street.   To the extent this case provides precedent for an adult with a similar disability and under similar legal maneuvering, I think a reversal is a disservice both to that person and to the public.

I would affirm the judgment.


FN1. Hereafter all statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. Hereafter all statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2.   Section 5303 reads:  “The court shall conduct the proceedings on the petition for postcertification treatment within four judicial days of the filing of the petition and in accordance with constitutional guarantees of due process of law and the procedures required under Section 13 of Article 1 of the Constitution of the State of California.  [¶]  If at the time of the hearing the person named in the petition requests a jury trial, such trial shall commence within 10 judicial days of the filing of the petition for postcertification treatment unless the person's attorney requests a continuance, which may be for a maximum of 10 additional judicial days.   The decision of the jury must be unanimous in order to support the finding of facts required by Section 5304.  [¶]  Until a final decision on the merits by the trial court the person named in the petition shall continue to be treated in the intensive treatment facility until released by order of the superior court having jurisdiction over the action, or unless the petition for postcertification treatment is withdrawn.   If no decision has been made within 30 days after the filing of the petition, not including extensions of time requested by the person's attorney, the person shall be released.”

3.   Subdivision (a)(2) of section 1026.5 of the Penal Code states:  “The time limits of this section are not jurisdictional.”   (Emphasis added.)

4.   Other cases have declared the time limits imposed by section 1026.5 directory only where the petition, while filed beyond the statutory 90-day period, allowed the defendant sufficient time to prepare and present a defense before expiration of the original term of commitment.  (People v. Echols (1982) 138 Cal.App.3d 838, 842–843, 188 Cal.Rptr. 328;  In re Johns (1981) 119 Cal.App.3d 577, 580–581, 175 Cal.Rptr. 443.)   In both Echols and Johns, the courts balanced the “prejudicial effect of the delay against the justification for the delay” pursuant to a due process standard, rather considering the time requirements of section 1026.5 jurisdictional.  (119 Cal.App.3d at p. 581, 175 Cal.Rptr. 443.)   But we find the case before us more similar to Pacini and Hill.

5.   A Wisconsin appellate court so ruled when presented with statutes analogous to sections 5352.1 and 5365.  (See State ex rel. Lockman v. Gerhardstein (1982) 107 Wis.2d 325, 320 N.W.2d 27.)We are aware that a contrary view was taken of forerunner statutes to the LPS Act which required a jury trial upon demand for persons committed for mental illness to be held “not less than five nor more than ten days from the date of the demand for a jury trial.”  (Former Pol.Code, § 2174, Welf. & Inst.Code, §§ 5125, 5572.)   The courts found these provisions “directory only,” thereby relegating the confinee to a proceeding in mandamus to compel the court to proceed.  (In re Scott (1922) 187 Cal. 770, 772, 204 P. 571;  see also In re Shakleford (1922) 188 Cal. 279, 280, 204 P. 822;  People v. Donel (1967) 255 Cal.App.2d 394, 400, 63 Cal.Rptr. 168.)   But the language of these statutes differed from sections 5352.1 and 5365 and were effective only before the LPS Act amended the law to better protect the rights of confined persons.

NEWSOM, Associate Justice.

ELKINGTON, Acting P.J., concurs.

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