MENTAL HEALTH ASSOCIATION IN CALIFORNIA v. DEUKMEJIAN (1986)

Plaintiffs and appellants to this action are The Mental Health Association in California, a California nonprofit corporation;  The Mental Health Association in Los Angeles County, a California association;  and Linda Blake Gledhill, a taxpayer.   Defendants and Respondents are George Deukmejian, in his official capacity as Governor of the State of California;  Michael O'Connor, in his official capacity as Director of the Department of Mental Health for the State of California;  Gary Macomber, in his official capacity as Director of Developmental Services for the State of California;  David B. Swope, in his official capacity as Secretary of the Health and Welfare Agency of the State of California;  Jesse Huff, in his official capacity as the Director of the Department of Finance for the State of California;  the Board of Supervisors of Los Angeles County;  County of Los Angeles;  and J. Richard Elpers, M.D., in his official capacity as the Director of Los Angeles County Department of Mental Health.

Appellants brought this action seeking declaratory and injunctive relief to require respondents to create and fund community-based, mental health residential and rehabilitative programs ¹ for certain, gravely disabled persons as alternatives to treatment at Metropolitan and Camarillo State Hospitals (Metropolitan and Camarillo) consistent with the purposes of placement under the Lanterman-Petris-Short Act (LPS).   To accomplish their demands, appellants requested the court to appoint a panel of persons knowledgeable of the needs of mentally disordered persons and empower the panel to determine the type, nature and number of facilities and programs required to meet respondents' obligations as described by appellants.   The panel would report to the court and respondents would be required to file periodic reports with the court with appellants' counsel describing steps that respondents were taking to comply with the judgment.   The court was to retain jurisdiction for five years to review and enforce compliance by respondents with the judgment.

The trial court denied appellants' relief on all counts.   This appeal followed.

THE JUDGMENT AND FINDINGS OF THE TRIAL COURT

Although necessarily lengthy and detailed the court's Statement of Decision is an excellent digest of the issues and ramifications of this taxpayers suit.   Summarized, it is as follows: ²  The lawsuit is concerned with the provision of treatment services to mentally disordered persons confined in Metropolitan and Camarillo Hospitals pursuant to LPS.  (F–5.)   The United States Supreme Court decision in Youngberg v. Romeo (1982) 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28, and several subsequent decisions interpreting that case, have clearly established that there is no constitutional right to community health treatment or mental health treatment in a least restrictive environment.  (F–7.)   This concept is particularly applicable here because we are not dealing with an abstract proposition, but rather an application to individuals who must be individually evaluated to see what type of confinement is most appropriate for each of them.  (F–8.)

LPS, Community Residential Treatment Act and Short-Doyle Act create a legislative preference for the provisions of mental health treatment in the least restrictive environment, but establish no absolute right to same.   This fact is evidenced by the Legislature's financing of the mental health system in the years subsequent to the enactment of the applicable statutes.   The same has been gradual as opposed to the traumatic doubling or tripling of financing which the evidence established would be necessary to implement the California Model and which was necessary to implement comparable systems in small portions of other states.  (F–9.)

The central factual issue in this action is whether there are mentally disordered individuals confined pursuant to the LPS Act in Metropolitan or Camarillo who could be treated in a less restrictive environment.  (F–11.)   Testimony at trial indicates that a substantial number of the patients confined at Metropolitan and Camarillo may not need to be in such a restrictive setting.  (F–20.)   County mental health officials all testified that many persons are confined at the state hospitals and the county hospitals inappropriately or longer than necessary because of the lack of appropriate alternative programs and services in the community.  (F–22.)

Appropriate alternative programs and services less restrictive at state hospitals will substantially reduce the rate of rehospitalization and, therefore, the risk of inappropriate confinement.  (F–23.)   Many gravely disabled persons confined at the two state hospitals are eventually discharged without appropriate after care services and support programs to enable them to maintain themselves in the community.  (F–27.)   As a result of the lack of a full continuum of programs and services, gravely disabled persons in Los Angeles County are frequently subjected to the “revolving door” process.³  (F–28.)

The consensus of mental health professional opinion presented at trial is that community based treatment which encourages individuals to maximize their freedom is consistent with standards of minimally adequate care.  (F–30.)   A model for such a system designed for California exists called the “California Model”;  full implementation of a California model would provide minimally adequate community based treatment services to mentally ill persons in Los Angeles County.  (F–32.)   The state defendants have developed their five-year plan in which to upgrade the physical plan of Metropolitan and Camarillo and to improve slightly the available staff services there.   No such plan has been developed by the state and county defendants to establish and maintain community based programs and services for patients discharged from the two hospitals.  (F–33.)

This litany of problems with, and deficiencies of, the present system, however, do not mean that, in the absence of the deprivation of constitutional rights, this court has the power to dictate (1) how the mental health system should be structured, and (2) how much money the Legislature should appropriate to accomplish the changes.   Such action on the part of the court would further entail setting up a new bureaucracy to supervise the new system and completely usurp the functions of the executive and the Legislature on a statewide basis.  (F–34.)

The state is not required to provide mental health services to its citizens.   When it chooses to, it has considerable latitude in determining the nature and scope of its responsibilities.  (F–36.)   To pass constitutional muster relative to the operation of the state's mental health system, the executive and the legislative branches need only demonstrate that they have made reasonable decisions in their operation and administration.  (F–37.)

The evidence establishes that the executive and legislative branches have made most reasonable decisions in the operation of the state's mental health system.  (F–38.)   The funding of the mental health system has been commensurate with the state's general fund budget.  (F–39.)   The state mental health system is currently a high priority both with the executive and the legislative branches.  (F–40.)

The state was a pioneer in the development of community alternative to state hospitals and considerable progress has been made in the development of community programs in Los Angeles County over the past five to six years.   (F–41.)   California's mental health system in general and the community health system in particular compares most favorably with other states.  (F–42.)

The executive and legislative branches of government have not abdicated their responsibilities to administer the state's mental health system.   And, in fact, are promptly discharging this responsibility.   Accordingly, the California Constitution and the doctrine of the separation of powers prevent this court from taking over the operation of the state mental health system and requested relief must be denied for this reason alone.  (F–43.)

Plaintiffs have not carried their burden of establishing that the patients in question in Metropolitan or Camarillo can be treated less restrictively in the community.  (F–45.)

The evidence in this case established that as a result of the de-institutionalization movement and the civil commitment statutes in California those patients capable of community treatment have for the most part been removed to the community;  that the hospitals therefore are now left with the sickest hardcore of the mentally ill and community treatment for this hardcore population could not be less restrictive than hospital treatment, but in fact would be more restrictive.  (F–47.)

As relief in this action, taxpayer Gledhill requests that the court order and supervise along with a seven-member court appointed panel of experts the creation of a comprehensive community based mental health system throughout Los Angeles County consistent with the specifications set forth in the California model.  (F–52.)   Taxpayer Gledhill's requested relief would constitute a takeover essentially of the entire mental health system by the court.  (F–53.)   In order to grant this relief the court would implicitly be required to assess the quality of the mental health system statewide and therefore determine that the executive and the legislative branches of our government were not adequately administering the system.  (F–54.)

ISSUES ON APPEAL

1. Do gravely disabled persons have a statutory right to receive treatment services in a less restrictive setting than California's state mental hospitals?  (Metropolitan and Camarillo.)

2. Do gravely disabled persons have a constitutional right to treatment in the “least restrictive alternative”?

3. Did the trial court correctly determine that the operation of the state mental health program within the context of the relief sought by appellants is the province of the executive and legislative branches of government?

DISCUSSION

The California statutory scheme for civil commitments of gravely disabled persons is controlled by LPS, Community Residential Treatment Act (CRT) and Short-Doyle Act (Short-Doyle).   Involuntary civil commitment may be accomplished in three ways.   A person may be the subject of a Welfare and Institutions Code section 5150 ⁴ proceeding in which a professional person or certain others may take the person into custody and place him in a facility for 72–hour treatment and evaluation.   Second, a superior court may order evaluation of a person alleged to be gravely disabled.  (§ 5200.)   The third method in which a person may be civilly committed involves the appointment of a conservator of the person and a petition of the conservator for authority to place the person in a state mental hospital.  (§ 5350 et seq.)

A person subject to 72–hour evaluation and treatment pursuant to the provisions of section 5150 may be certified for an additional 14 days of involuntary treatment if found by the professional staff to be gravely disabled.  (§ 5250.)   The actual certification may be performed ex parte by a professional person and a physician or psychologist who participated in the original evaluation of the person as gravely disabled.   At the end of this combined 17–day period, the person must be released from the facility, unless an application for appointment of a temporary conservator has been filed.

Sections 5254 and 5256 provide that each person certified for an additional 14 days of involuntary treatment is entitled to a probable cause hearing within 7 days of the initial detention.   Additionally, the person may seek habeas corpus relief, in which instance a hearing must take place in the superior court within two days after the petition is filed.  (§§ 5275, 5276.)

As indicated above, at the end of the 17–day period a gravely disabled person must be discharged unless a petition for appointment of a conservator has been filed.  (Emphasis added.)   Section 5352.1 allows establishment of a temporary conservatorship for a period not to exceed 30 days, by ex parte judicial order.   Section 5365 provides a mandatory judicial review during that period to determine whether a one-year conservatorship should follow.   If a one-year conservatorship is established the conservatee is entitled to a status hearing in six months.   He is also entitled to contest each six months the rights denied him and the powers granted the conservator.  (§§ 5364, 5358.3, 5357.)   Section 5361 provides the conservatorship can only be renewed on the basis of a petition to the court supported by medical evidence.

This statutory scheme is designed to determine whether a person is gravely disabled within a 72–hour evaluation period.   If treatment is required, the person may be certified for an additional 14 days of involuntary treatment.   At the end of this combined 17–day period such person must be released unless conservatorship procedures are commenced.   This scheme is designed to protect the rights of persons involuntarily committed by providing for judicial review at all stages of the proceedings.

Appellants place the gravely disabled persons into two categories, the “hard-core” patients and the “revolving door” population.   They are not challenging the state and county's treatment and commitment of the hard-core persons.   They claim the statutory scheme outlined in LPS, CRT and Short-Doyle envisions a full continuum of services ⁵ that includes a least restrictive treatment in the form of community treatment for the revolving door population.   The issue clearly before us is whether the above legislation and/or the Federal and State Constitutions mandate a program, administered by the courts, for a community form of treatment of present and future gravely disabled persons.

 1. The statutory right.   The above described statutory scheme is aimed at limiting inappropriate commitments and protecting the due process rights of persons charged to be mentally disabled.   It specifically contemplates use of hospitals of the State Department of Mental Health;  although after a conservator has been legally appointed, other alternatives may be appropriate.   The court found and properly so (F–9) that the legislative scheme does create a preference for mental health treatment in the least restrictive environment but did not create an absolute right to it.   It based its conclusion on the language of the various statutes and on evidence that the Legislature's funding of the mental health system in the years subsequent to the enactment of the statutes does not provide for a community treatment program envisioned by appellants.   We find the court's decision and reasoning is supported by the evidence and conclude there is no statutory mandate that requires us to establish such a program.

 To implement appellant's plan would require a substantial increase in the funding for the mental health system.   The Legislature has not done this but has, as the court noted, made gradual rather than substantial increases for the mental services.   It logically follows that had the Legislature intended a mandatory community program it would have funded the program in its annual budget.   The annual budget is a legislative act and as such its provisions should be read in harmony with other statutes.  (Piazza Properties Limited v. Dept. of Motor Vehicles (1977) 71 Cal.App.3d 622, 633, 138 Cal.Rptr. 357.)

LPS, CRT and Short-Doyle detail a scheme that has all of the standards, administrative and otherwise, for implementing the legislature's mental health program.   Appellants, on the other hand, ask the court to establish a comprehensive addition to the scheme because language in a few of the sections recognize the desirability of community programs and the intent to establish them.   It is clear, however, that the standards and ways and means for establishing least restrictive mental health programs are absent.   There is no definition of least restrictive alternatives nor an articulation of community placement in involuntary civil commitment proceedings.   LPS is codified in sections 5000 et seq.   It was amended by CRT (§§ 5450–5464) and is implemented in the counties through the funding mechanism of Short-Doyle (§ 5600 et seq.)   The sections primarily relied upon by appellants as requiring implementation of their plan are 5325.1(a), 5111, 5120, 5450 and 5600.

Sections 5325.1 states, in pertinent part, “It is the intent of the Legislature that persons with mental illness shall have rights including, but not limited to, the following:  [¶ ] (a) The right to treatment services which promote the potential of the person to function independently.   Treatment should be provided in ways that are the least restrictive of the personal liberty of the individual.”  (Emphasis added.)

The trial court interpreted the word “should” as permissive rather than mandatory.   This is supported by the authorities, with which we are in accord.   The word is defined in Black's Law Dictionary (5th ed. 1979) page 1237, column 1, as follows:  “Should.   The past tense of shall;  ordinarily implying duty or obligation;  although usually no more than an obligation of propriety or expediency or a moral obligation, thereby distinguishing it from ‘ought.’   It is not normally synonymous with ‘may,’ and although often interchangeable with the word ‘would,’ it does not ordinarily express certainty as ‘will’ sometimes does.”

 The word “shall” is mandatory and has been legally recognized as such by abundant decisional law.   Respondents point out, and we agree, that the Legislature's use of “should” was not inadvertent or unknowledgeable because paragraph (c) of the same section reads “․ medication shall not be used as punishment, for the convenience of staff, as a substitute for program, or in quantities that interfere with the treatment program.”  (Emphasis added.)   Where different words are used in the same connection in different parts of the statute, it will be presumed that the Legislature intended a different meaning and effect.  (Charles S. v. Bd. of Education (1971) 20 Cal.App.3d 83, 95, 97 Cal.Rptr. 422.)

Section 5450 provides, “It is the intent of the Legislature to establish a system of residential treatment programs in every county which provide, in each county, a range of available services which will be alternatives to institutional care and are based on principles of residential community-based treatment.”   This section is part of CRT, a chapter within the LPS Act whose purpose is to encourage the establishment of a system of community-based residential treatment programs.   It is followed by section 5450.1 that expresses the Legislature's decision to promote rather than to mandate the least restrictive form of treatment.   It provides, “To this end, counties may implement the community residential treatment system described in this chapter either with available county applications or, as new moneys become available, by applying for funds to the state department of mental health.”  (Emphasis added.)   Not only does the word “may” establish the optional character of the residential treatment facilities, but the language “as new moneys become available” supports the conclusion that the programs are intended for the future when fiscally feasible.

Short-Doyle establishes a mechanism for sharing state and county responsibilities in mental health services.  (§ 5600 et seq.)   Only section 5600.4 refers to the concept of least restrictive treatment.   It states in part:  “The community mental health programs shall operate under the following principles:  [¶ ] (a) Services shall be developed which permit persons detained under the provisions of the (LPS) to be treated in the least restrictive setting.”   This provision is not inconsistent with the prior cited sections.   It mirrors the desire for future least restrictive settings by stating “services shall be developed,” however, no timetable or level of services is mentioned.   We agree with the trial court that the legislature's funding is important in determining the mandatory nature of the program urged by appellants.   A program of least restrictive services is to be implemented on a gradual, funded basis.   The statutory language of the sections cited above does not mandate otherwise.

Sections 5115 and 5120 cited by appellants were enacted to prevent counties and cities from enacting zoning laws etc. that would prevent operations of existing and future licensed mental health facilities.⁶

We have read the cases cited by appellants to support their position,⁷ but these cases all deal with dissimilar factual situations.   Although they refer to the policy of least restricted treatment they do not address the issue here, namely, whether LPS and Short-Doyle mandate such facilities.   Actually language in some of these cases refute their argument.   In Conservatorship of Early,7 supra, the court noted that the “least restrictive alternative” is only a “focus” of LPS.  (Early, 35 Cal.3d at p. 250, 197 Cal.Rptr. 539, 673 P.2d 209.)   And in Foy v. Greenblot,7 supra, the court suggested that the patient was entitled to the least restrictive treatment “feasible” but rejected a contention that there was a duty to establish such treatment under the facts of the case.  (Foy, 141 Cal.App.3d at pp. 10–11, 190 Cal.Rptr. 84.)

The present legislative scheme does encourage less restrictive treatment through the conservatorship procedures but this concept does not aid appellants as the 1984 Supreme Court case of In re Gandolfo (1984) 36 Cal.3d 889, 206 Cal.Rptr. 149, 686 P.2d 669, demonstrates.   A gravely disabled conservatee sought habeas corpus relief from an order of the superior court directing the conservator to place the conservatee in a state hospital.   The conservatee sought a court order placing him in a facility that was less restrictive than the state hospital.   The Supreme Court reversed the order of the superior court granting the habeas corpus relief.   The trial court had ruled that the conservatee was not gravely disabled to the extent that he needed to be maintained in a locked institution and ordered his release for placement in a community environment near to his father.   The opinion states, at pages 898–899, 206 Cal.Rptr. 149, 686 P.2d 669:

“The placement of concededly gravely disabled conservatees in the least restrictive setting possible consistent with their needed treatment is unquestionably an important legislative policy.   However, ․ the provisions of the LPS Act for challenging one's status as a conservatee and the powers of the conservator, as well as the rights to appeal from the [appointing court's orders,] appear to be well suited, in ordinary circumstances, to enforcing the right to an appropriately nonrestrictive environment.   The precise degree of restriction appropriate to a patient may change from day to day or week to week and a rule holding habeas corpus the proper mechanism for keeping up with those changes could only invite a hopeless flood of cases which would wreak havoc on the ‘continuing jurisdiction’ of appointing courts.   The availability of review every six months under the LPS scheme will ordinarily insure that any change in the conservatee's condition or other circumstance affecting the appropriateness of the restrictions placed on him is recognized within a reasonable time ․” (Emphasis in original.) 8

2. The constitutional right.   Appellant's contend the due process clause of the Fourteenth Amendment to the United States Constitution guarantees the mentally disabled less restrictive services.   The trial court specifically found (F–7) that the United States Supreme Court decision in Youngberg v. Romeo, supra, 457 U.S. 307, 102 S.Ct. 2452, and subsequent decisions, put this argument to rest in favor of respondents.   In Youngberg, Romeo was a severely retarded 33–year–old person and was unable to care for himself.   By court order he was committed to the Pennhurst State School and Hospital pursuant to the involuntary commitment provisions of Pennsylvania State law.   Romeo was injured at Pennhurst on numerous occasions both by his own violence and by the actions of other residents.   His mother initially filed an action seeking damages and injunctive relief against Pennhurst's director and others, alleging that Romeo was suffering injuries because they failed to institute appropriate preventive procedures thus violating his constitutional rights under the Eighth and Fourteenth Amendments.   In a second amended complaint damages were sought to compensate Romeo for defendant's failure to provide him with appropriate “treatment or programs for his mental retardation.”

The Supreme Court acknowledged that it was considering for the first time the constitutional rights of involuntarily committed mentally retarded persons and in defining one of plaintiff's causes of action states, “he asserts a ‘constitutional right to minimally adequate habilitation.’  ․ This is a substantive due process claim that is said to be grounded in the liberty component of the due process clause of the Fourteenth Amendment.”   (Youngberg, at p. 316, 102 S.Ct. at p. 2458.)   In addressing this issue the court stated, “As a general matter, a state is under no constitutional duty to provide substantive services for those within its border” (Youngberg, at p. 317, 102 S.Ct. at p. 2459) and concluded that due process is satisfied if restraints are imposed on mentally retarded individuals in accordance with the judgment of qualified professionals and that courts should defer to this professional judgment.  (Youngberg, at pp. 321–323, 102 S.Ct. at pp. 2461–2462.)   The court held that the state has a duty to provide adequate food, shelter, clothing and medical care and must provide reasonable safety for all residents and personnel within the institution.   As to Romeo's right to training courses, it held “the state is under a duty to provide respondent with such training as an appropriate professional would consider reasonable to ensure his safety and to facilitate his ability to function free from bodily restraints.”  (Youngberg, at p. 324, 102 S.Ct. at p. 2462.)

Concededly the Youngberg opinion was concerned with the rights of a mentally disabled person to certain training, and did not address the exact issue before us.   However, it did recognize it was dealing with a constitutional challenge to other services that were being denied to involuntarily committed persons.   Subsequent cases relying on the constitutional dimensions of Youngberg have enlarged its scope.   The right to community placement was considered in Society for Goodwill to Retarded Children v. Cuomo (2nd Cir.1984) 737 F.2d 1239.   A district court had found that a failure to provide certain community placement facilities had unduly deprived committed residents of their basic liberties and had ordered 400 such residents into community settings by the year 1987.   The circuit court of appeal reversed.   It applied the Youngberg standard that due process is satisfied if the restraints are imposed on mentally retarded individuals in accordance with the judgment of qualified professionals.   It reasoned as follows:  “Even if every expert testifying at trial agrees that another type of treatment or residence setting might be better, the federal courts may only decide whether the treatment or residence setting that actually was selected was a ‘substantial departure’ from prevailing standards of practice․  ‘The question suggested by Youngberg then, is not what treatment was actually provided, but whether the treatment decision was professionally made and falls within the scope of professional acceptability.’  [¶] Therefore, we may not look to whether the trial testimony established the superiority of a ‘least restrictive environment’ in general or of community placement in particular.   Instead, we may rule only on whether a decision to keep residents at SDC is a rational decision based on professional judgment․  [¶] Our conclusion that there is no constitutional right to community placement is supported by other courts.  (See Phillips v. Thompson, [7th Cir.1983], 715 F.2d [365] at 368.)  ․ More generally, post-Youngberg courts have held that there is no constitutional right to a ‘least restrictive environment.’ ”  (Society for Goodwill to Retarded Children, supra, at pp. 1248–1249;  emphasis added.)

In Phillips v. Thompson, 715 F.2d 365, cited above, several hundred higher functioning, but mentally retarded adults under a State of Illinois commitment program were living and cared for at a privately owned facility.   The facility closed after only 24–hour notice of its intent to do so.   Representatives of the Illinois Department of Mental Health and Developmental Disabilities moved the retarded persons to state mental institutions.   A legal action was commenced by the persons moved alleging their Fourteenth Amendment rights were violated because they were placed in an unnecessarily restricted environment and the state had failed to develop alternatives which would be less restrictive.   In denying plaintiffs' claim that they were entitled to care in a less restrictive community residential setting the court stated, “In adjudicating the claim of the class members that their liberty of movement was illegally restrained, we gleaned from Youngberg that it must be determined whether professional judgment in fact was exercised in balancing the liberty interest of the class members against relevant state interests.  (Citing Youngberg.)   The district court determined, which is adequately supported by the record, that the liberty of movement of class members was limited only by the reasonable requirements of caring for a large number of handicapped people in an institutional setting as such requirements were determined by the professionals who directed the operations of these institutions.   Thus the class members were not denied their due process right to liberty of movement.”  (Phillips v. Thompson, supra, at p. 368.)

In Association for Retarded Citizens of ND v. Olson (1982) 561 F.Supp. 473, the court considered the same Fourteenth Amendment argument for right to community placement as follows:  “This right against unreasonable restraint also involves the much discussed question of alternatives to institutionalization, such as community homes.   Prior to the Youngberg decision, this court held that the Fourteenth Amendment secures a right to the least restrictive practicable alternatives to institutionalization (citations).   While the Youngberg decision does not directly address this specific right, the Court's analysis indicates that it would reject an absolute right to the least restrictive alternatives․  Following this analysis, this court must conclude the constitutional right to the least restrictive method of care or treatment exists only insofar as professional judgment determines that such alternatives would measurably enhance the residents' enjoyment of basic liberty interests.”  (At p. 486.)

 Returning to our present case the court following Youngberg's “professional judgment” standard found “the evidence in this case established that as a result of the de-institutionalization movement and the civil commitment statutes in California those patients capable of community treatment have, for the most part, been removed to the community;  that the hospitals, therefore, are now left with the sickest hard core of the mentally ill;  and the community treatment for this hard-core population because of limited land space of community facilities, negative community reaction, and victimization of patients would not be less restrictive than hospital treatment and, in fact, would be more restrictive.  (F–47.)   The preponderance of the evidence establishes that the treatment setting actually selected was not only within the bounds of professional judgment, but was clinically the most appropriate setting for the individuals in question.”  (F–48.)

 Appellants turn to the California Constitution for their final argument on the constitutional issue.   The trial court concluded “there is no constitutional right to community mental health treatment or mental health treatment in the least restrictive environment.”   This finding cited only federal cases, therefore, appellants argue the court did not address their argument that Article I, section 13, of the California Constitution ⁹ ensures gravely disabled persons treatment in a least restrictive environment.   We are satisfied that the trial court was addressing both the federal and state constitutional issues as raised by appellants during the trial.   There are no California cases in point like the federal cases that could have been cited by the trial court on the issue.   We also conclude that there is no California constitutional right to the least restrictive program requested by appellants.

The substance of appellant's argument is that article I, section 13, guarantees that no person shall be wrongfully deprived of his or her fundamental liberty interests without due process of law, and our constitution provides protection greater than that guaranteed by the United States Constitution.   This argument overlooks the fact that the California statutory scheme under LPS was intentionally and primarily enacted to establish due process protection of all the rights of the involuntarily committed mentally disordered person.   They are not deprived of their liberty interests without due process.   Due process is what article 1, section 13, guarantees.  In re Gandolfo, supra, 36 Cal.3d 889, 206 Cal.Rptr. 149, 686 P.2d 669, decided that confinement in a state mental hospital, as ordered by the superior court, was appropriate and that placement through the conservatorship process in a least restrictive environment was a legislative policy.  (Gandolfo, at p. 898, 206 Cal.Rptr. 149, 686 P.2d 669.)   This strongly implies that least restrictive treatment is not a constitutional right under the California Constitution, but is a desirable program to be developed by the legislature.

 Appellants argue that this constitutional issue must be decided under the “strict-scrutiny” standard.   This is correct when deprivation of personal liberty is being challenged under a statutory scheme.  (In re Moye (1978) 22 Cal.3d 457, 465, 149 Cal.Rptr. 491, 584 P.2d 1097.)   Basically, it is a standard for measuring the validity of a statutory scheme under the equal protection doctrine.   Here, the statutory scheme is not challenged by appellants.   Instead they seek to enlarge it.   No violation of equal protection is argued.   We find no merit to appellant's contention that in the context of this case the strict scrutiny test must be applied.

Appellants cite several cases to support their arguments on the California constitutional issue.10  They are not in point as they are dealing in due process procedural rights.   In In re Hop, supra 29 Cal.3d at page 91, 171 Cal.Rptr. 721, 623 P.2d 282,10 the court held that the placement of a developmentally disabled adult in a state hospital in the absence of either a judicial determination regarding her disability or an intelligent request for admission was a violation of due process.  Conservatorship of Roulet, supra, 23 Cal.3d at page 235, 152 Cal.Rptr. 425, 590 P.2d 1,10 addressed confinement of a mentally disabled person after a jury trial and held a unanimous jury vote was required based upon proof beyond a reasonable doubt.  Conservatorship of Early, supra, 35 Cal.3d at page 251, 197 Cal.Rptr. 539, 673 P.2d 209,¹⁰ recognized that mentally disordered persons did not have to be committed as gravely disabled under a LPS conservatorship proceeding if he or she was able to provide for basic personal needs with the assistance of willing and responsible family members or friends.

3. The state's mental health program is the province of the executive and legislative branches of government.   While we agree that the trial court was probably correct in finding the state's mental health program is the province of the executive and legislative branches (see In re Gondolfo, supra ), it is unnecessary to determine the correctness of the court's findings on this issue.   Our conclusions that there is no statutory or constitutional right to treatment in a least restrictive environment sufficiently affirm the trial court's judgment.

One other matter must be addressed before we conclude this opinion.   The parties are in disagreement over the scope of the trial and the findings of the court.   Respondents contend that the trial was only concerned with whether the patients in Metropolitan and Camarillo were entitled to treatment in a less restrictive setting.   Appellants, on the other hand, claim that their case and evidence was aimed at establishing the rights of the “revolving door” patients not necessarily committed at time of trial.   We are satisfied that the evidence before the court and the court's findings address both concepts.   The findings are broad enough to cover both the hardcore committed in the two hospitals and also the “revolving door” population either in or out of the hospitals at the time of trial.

The judgment is affirmed.   Each party to bear his, her or its own costs.   This modification does effect a change in judgment.   The petition for rehearing is denied.

FOOTNOTES

1.   These programs, in general, make up the “least restrictive” services and environment mentioned throughout this opinion.

2.   The references are to the court's specific findings.

3.   Appellants describe the “revolving door” population as those who are released to the community without adequate support but are “disabled enough” to suffer frequent and repeated loss of liberty by hospitalization, but “not disabled enough” to be given continuing and appropriate followup care once they are released to the community.

4.   All references are to the Welfare and Institutions Code unless otherwise stated.

5.   A full continuum of services, according to all the expert testimony, would include appropriate long-term hospitalization, 24–hour acute intensive care, short-term crisis residential care, 24–hour transitional care, long-term rehabilitative care, out of home placement, emergency service and evaluation, acute day treatment, outpatient services, case management, community support services, community outreach services, mental health advocacy, and foster family care.

6.   Section 5115, titled Legislative Intent.   It provides:  “The Legislature hereby finds and declares:  [¶ ] (a) It is the policy of this state, as declared and established in this section and in the Lanterman Developmental Disabilities Services Act, Division 4.5 (commencing with Section 4500), that mentally and physically handicapped persons are entitled to live in normal residential surroundings and should not be excluded therefrom because of their disability.  [¶ ] (b) In order to achieve uniform statewide implementation of the policies of this section and those of the Lanterman Developmental Disabilities Services Act, it is necessary to establish the statewide policy that the use of property for the care of six or fewer mentally disordered or otherwise handicapped persons is a residential use of such property for the purposes of zoning.”Section 5120, in pertinent part, states:  “It is the policy of this state as declared and established in this act and in the Lanterman-Petris-Short Act that the care and treatment of mental patients be provided in the local community.   In order to achieve uniform statewide implementation of the policies of this act, it is necessary to establish the statewide policy that, notwithstanding any other provision of law, no city or county shall discriminate in the enactment, enforcement, or administration of any zoning laws, ordinances, or rules and regulations between the use of property for the treatment of general hospital or nursing home patients and the use of property for the psychiatric care and treatment of patients, both inpatient and outpatient.”

7.   The cases cited are Association for Retarded Citizens of California v. Department of Developmental Services (1985) 38 Cal.3d 384, 211 Cal.Rptr. 758, 696 P.2d 150;  Conservatorship of Early (1983) 35 Cal.3d 244, 197 Cal.Rptr. 539, 673 P.2d 209;  Conservatorship of Roulet (1979) 23 Cal.3d 219, 152 Cal.Rptr. 425, 590 P.2d 1;  Foy v. Greenblott (1983) 141 Cal.App.3d 1, 190 Cal.Rptr. 84;  and City of Torrance v. Transitional Living Center of Los Angeles, Inc. (1982) 30 Cal.3d 516, 179 Cal.Rptr. 907, 638 P.2d 1304.

8.   In reference to the legislative “policy” of least restrictive setting the opinion cites section 5358, which provides, “When ordered by the court after the hearing required by this section, a conservator appointed pursuant to this chapter shall place his or her conservatee in the least restrictive alternative placement, as designative by the court.   Such placement may include a medical, psychiatric, nursing, or other state-licensed facility, or a state hospital ․”

9.   Article I, section 13, provides:  “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated;  and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and persons and things to be seized.”

10.   The cases cited are In re Hop (1981) 29 Cal.3d 82, 171 Cal.Rptr. 721, 623 P.2d 282;  Conservatorship of Roulet (1979) 23 Cal.3d 219, 52 Cal.Rptr. 425, 590 P.2d 1;  In re Moye (1978) 22 Cal.3d 457, 149 Cal.Rptr. 491, 584 P.2d 1097;  Conservatorship of Early (1983) 35 Cal.3d 244, 197 Cal.Rptr. 539, 673 P.2d 209;  and Robbins v. Superior Court of Sacramento County (1985) 38 Cal.3d 199, 211 Cal.Rptr. 398, 695 P.2d 695.

HASTINGS, Associate Justice.

ASHBY, Acting P.J., and EAGLESON, J., concur.