A recent case clarifies the rights of a proposed conservatee in proceedings held pursuant to the Lanterman–Petris–Short (LPS) Act.
In Conservatorship of Heather W. (2016) 245 Cal.App.4th 378, the Public Guardian of San Luis Obispo County had been appointed as conservator to Heather W. in 2013 under the LPS Act (Cal. Welf. & Inst. Code, § 5000 et seq.) on the grounds that she was gravely disabled due to a mental disorder. In 2014, the Public Guardian petitioned to be reappointed as Heather W.’s conservator on the same grounds. Heather W.’s counsel did not request a jury trial, and while the court advised Heather W. of her right to testify at trial, the court did not advise her that she had a right to a jury trial. The trial court set a date for a bench trial.
At trial, Dr. Rose Drago, a psychiatrist, testified that Heather W. suffered from schizoaffective disorder, which caused psychosis and mood swings, and that she had been hospitalized several times because she was gravely disabled and a danger to others. Dr. Drago also testified that Heather W. had a history of refusing to take her medication. At one point, while living in a homeless shelter, she acted “bizarrely, pacing, responding to hallucinations.” Dr. Drago concluded that Heather W. should be in a locked facility until she could become stabilized through treatment. Conservatorship of Heather W., 245 Cal.App.4th at 381–382.
Specifically citing Heather W.’s high number of hospitalizations, the trial court found Heather W. to be gravely disabled. The court appointed the Public Guardian as her conservator with the power to detain and care for her and require placement “in a suitable institution, facility, home or hospital.” Id. at 382.
The Court of Appeal reversed, resting its decision on a wealth of case law from no less than the California Supreme Court. For example, the Court cited Conservatorship of Roulet (1979) 23 Cal.3d 219, 235, in which the California Supreme Court held, “The due process clause of the California Constitution requires that proof beyond a reasonable doubt and a unanimous jury verdict be applied to conservatorship proceedings under the LPS Act.” Id.
The Court also relied on analogous California Supreme Court decisions from the field of criminal law. For example, in People v. Blackburn (2015) 61 Cal.4th 1113, 1130, the California Supreme Court held that in a mentally disordered offender (MDO) commitment proceeding, “the decision to waive a jury trial belongs to the defendant in the first instance, and the trial court must elicit the waiver decision from the defendant on the record in a court proceeding.” Likewise, in People v. Tran (2015) 61, Cal.4th 1160, 1167, the California Supreme Court held that for extension of hospital commitments for defendants who plead not guilty by reason of insanity (NGI), the NGI defendant has a right to a jury trial, and the defendant’s waiver of that right can be made by his or her counsel only if the defendant “lacks the capacity to make a knowing and voluntary waiver.” Id. at 383.
The Court of Appeal noted that the policy behind all commitment proceedings is “protecting the public and treating severely mentally ill persons.” Id. But in the LPS context in particular, the Court (quoting Conservatorship of Roulet, cited above) noted the importance of carefully balancing the conservatee’s liberty against the public safety, because “the gravely disabled person for whom a conservatorship has been established faces the loss of many other liberties in addition to the loss of his or her freedom from physical restraint. Indeed, a conservatee may be subjected to greater control of his or her life than one convicted of a crime. Consequently, the right to a jury trial to contest an LPS conservatorship is a right guaranteed by the California Constitution.” Id. (Internal citations and quotation marks omitted. Emphasis added.) Citing both Blackburn and Conservatorship of Kevin A. (2015) 240 Cal.App.4th 1241, 1252, the Court noted that the “potentially transitory and treatable nature of mental illness and the potentially limited areas of functioning impaired by such illness preclude any categorical inference that a [conservatorship defendant]…cannot competently decide whether to waive a jury trial.” Id. at 384.
Finally, the Court of Appeal cited Cal. Prob. Code § 1828, which provides in relevant part that “before the establishment of a conservatorship of the person or estate, or both, the court shall inform the proposed conservatee of all of the following․.. [p] The proposed conservatee has the right to oppose the proceeding, to have the matter of the establishment of the conservatorship tried by jury.” Cal. Prob. Code § 1828(a)(6). (Emphasis added.) The Court noted, “Here the trial judge did not give such an advisement to Heather W. and obtain her personal waiver of that right.” Id. at 384.
The Court of Appeal easily rejected the Public Guardian’s reliance on Conservatorship of Mary K. (1991) 234 Cal.App.3d 265 for the simple proposition that “counsel may make the waiver for the proposed conservatee.” That case not only was decided before Blackburn and Tran, but was distinguishable because in Mary K., the client had told her counsel that she wanted to waive a jury trial. In contrast, Heather W. had not even been told she had a right to a jury trial at all. Likewise, the Court of Appeal rejected the Public Guardian’s argument that any error was harmless, citing Tran, which held that “[an error] resulting in a complete denial of the defendant’s right to a jury trial on the entire cause in a commitment proceeding…is not susceptible to ordinary harmless error analysis and automatically requires reversal.” Id. at 385.
The Court of Appeal summed up its holding as follows: “In conservatorship proceedings pursuant to the LPS Act, the trial court must obtain a personal waiver of a jury trial from the conservatee, even when the conservatee expresses no preference for a jury trial. Absent such a waiver, the court must accord the conservatee a jury trial unless the court finds the conservatee lacks the capacity to make such a decision.” Id. at 381. The Court of Appeal did not discuss how a conservatee’s attorney might go about deciding whether to waive a jury trial for a client who lacks capacity to waive. Presumably, counsel would rely on the usual strategic concerns that lawyers consider when gauging whether their clients would get the best result from a jury trial or a bench trial.
The Court remanded the case, ordering the trial court to determine “whether Heather W. lacked the capacity to make a knowing and voluntary waiver at the time of counsel’s waiver.” The trial court had authority to reinstate its order only if it found “substantial evidence that [she] lacked the capacity to make such a waiver.” Id. at 385.