CRAMER v. GONZALES (1978)

OPINION

This appeal raises the question whether a person found to be mentally retarded and a danger to herself and others is entitled to a placement hearing re alternative methods of treatment or other locales of treatment prior to being committed to the State Department of Health for hospitalization pursuant to Welfare and Institutions Code section 6500.1 et seq.¹ We find that the trial court is not obliged to conduct a hearing to determine the least restrictive alternative placement.

After her initial institutionalization at the Austin State School in Texas in 1959 at the age of 25, appellant Gonzales was placed in three institutions in Kern County prior to her admission to Patton State Hospital on September 7, 1973. Her parents currently reside in Kern County.

Appellant does not challenge the sufficiency of the trial court's findings that she is mentally retarded and a danger to herself and to others. The evidence is sufficient to show that she has always been severely mentally retarded with an I.Q. of approximately 30.

In support of her contention that the trial court erred in denying her request for a placement hearing, appellant argues that (1) section 6509 uses permissive language, (2) the analogous commitment section in Health and Safety Code sections 38000-38500 dealing with the commitment of developmentally disabled persons provides that the person must be placed in the least restrictive alternative setting (Health & Saf. Code, s 38009.2) and (3) the denial of a placement hearing resulted in a violation of her constitutional right to due process and equal protection of the law.

Sections 6500.1-6512 govern the judicial commitment of the mentally retarded person who is a danger to himself or others “. . . to the State Department of Health for placement in a state hospital . . . .” (s 6502.) Section 6509 provides: “If the court finds that the person is mentally retarded, and that he or his parent or guardian is a resident of this state as determined in accordance with Section 6501, the court may make an order that the person be committed to the State Department of Health for hospitalization.” (Emphasis added.)

While section 6509 could be construed to mean that the trial court has the discretion to make or not to make an order “that the person be committed to the State Department of Health for hospitalization,” it is clear that there is no provision in this statutory scheme for the trial court to make any order other than one committing the mentally retarded person to the State Department of Health for placement in a state hospital. Consequently, a “placement hearing” would be an act of futility. There is no provision for a “least restrictive alternative placement” in these proceedings.

By way of contrast, the currently operative counterpart of Health and Safety Code section 38009.2,² which deals with the judicial commitment of the developmentally disabled person, who may be mentally retarded, residing in a state hospital, provides: “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.” Section 6514 goes on to state: “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.”

“ Under the equal protection clauses of the California and federal Constitutions, statutes which affect fundamental interests must be applied uniformly unless classification is necessary to further some compelling state interest.” (O'Brien v. Superior Court, 61 Cal.App.3d 62, 66-67, 132 Cal.Rptr. 13, 15.) The right to liberty is a fundamental interest protected under the equal protection clauses and a classification affecting it is subject to the strict scrutiny standard of judicial review. (People v. Olivas, 17 Cal.3d 236, 251, 131 Cal.Rptr. 55, 551 P.2d 375.)

Section 6514 does not specifically state that a developmentally disabled person who “. . . is not capable of providing for his basic personal needs . . . and is not able to protect himself from ordinary threats to life, health, or safety . . .” is entitled to a placement hearing in the trial court to determine the least restrictive alternative placement, and that issue is not now before us. Assuming, however, that such a hearing is required to comport with the requirements of due process, we are satisfied that the state has established it has a compelling interest in confining mentally retarded persons who are a danger to themselves or others. This compelling interest justifies the requirement in section 6509 that a mentally retarded person who is a danger to himself or others be hospitalized and this requirement is constitutional under the strict scrutiny standard of judicial review. (See People v. Tyars, 76 Cal.App.3d 1, 9, 142 Cal.Rptr. 554.)

Consequently, the trial court was not required to conduct a placement hearing and appellant's commitment to the State Department of Health for hospitalization was proper.

Appellant also questions whether a San Bernardino County Superior Court has jurisdiction to order a commitment to the State Department of Health for hospitalization under section 6500.1 et seq. of a mentally retarded person presently hospitalized in a hospital located in San Bernardino County who was initially and voluntarily committed to the hospital from another county where she had formerly resided. We find that the court has jurisdiction.

Prior to the hearing, the lower court denied a motion to dismiss for lack of jurisdiction, finding that the county where she was hospitalized was a proper county for the annual review even though she was legally a resident of another county.

Section 6502 provides: “A petition for a commitment of a mentally retarded person to the State Department of Health for placement in a state hospital may be filed in a superior court of the county in which such person resides, by any of the following persons . . . .” (Emphasis added.)

Both parties have briefed the technical legal meaning of residence and domicile and the extent to which a mentally incompetent person can form an intent to change her residence. We need not concern ourselves with these abstruse issues. The language in section 6502 is not mandatory. The use of the word “may” indicates that a petition may also be filed in the superior court of another county.

“The question of the proper county to file a commitment petition under section 6502 is one of venue and not jurisdiction, in that the language of the statute is not mandatory but merely provides that the petition ‘may’ be filed in the county of residence. (Fn. omitted.) (s 6502.) Accordingly, dismissal of the petition for lack of jurisdiction was improper.” (In re Teeter, 73 Cal.App.3d 932, 937, 141 Cal.Rptr. 103, 106.)

We hold that a petition for the commitment of a mentally retarded person to the State Department of Health for placement in a state hospital may be filed in the superior court of the county in which the state hospital where the person is currently hospitalized is located, even though the person is a resident of a different county. (In re Tyars, supra, 76 Cal.App.3d 1, 8-9, 142 Cal.Rptr. 554; In re Teeter, supra, 73 Cal.App.3d 932, 937, 141 Cal.Rptr. 103.) The lower court acted correctly in denying the prehearing motion to dismiss for lack of jurisdiction. We express no opinion on the propriety of the form used for resolving the issues presented below, since there was no motion for a change of venue.

The judgment is affirmed.

FOOTNOTES

1.  Unless otherwise specified, all statutory references in this opinion are to the Welfare and Institutions Code.

2.  Health and Safety Code, sections 38009.1 and 38009.2 were repealed on September 23, 1977, as a part of emergency legislation that added sections 6513-6519. (Added by Stats. 1977, ch. 984, p. 2880, ss 1-12, operative Sept. 23, 1977.)

THE COURT.