Opinion
Opinion on Rehearing, See 152 Cal.Rptr. 425, 590 P.2d 1.
Opinion on pages 653-677 omitted.
REHEARING GRANTED Glen F. Mowrer, Jr., Public Defender, Gilbert W. Lentz and Richard Savidge, Deputy Public Defenders, for objector and appellant.
George P. Kading, County Counsel, and Marvin Levine, Deputy County Counsel, Santa Barbara, for petitioner and respondent.
Keith C. Sorenson, Dist. Atty., San Mateo, and Joseph H. Clasgens, III, Deputy Dist. Atty., as amici curiae on behalf of petitioner and respondent.
CLARK, Justice.
Proceeding to review order reestablishing conservatorship and appointment of conservator of the person and estate of objector pursuant to provisions of the Lanterman-Petris-Short Act (Act). (Welf. & Inst.Code, § 5001 et seq.; all statutory references are to the Welf. & Inst.Code unless otherwise indicated.) The questions presented are: [143 Cal.Rptr. 895] (1) What is the required standard of proof in "grave disability" proceedings?, and (2) Must the jury verdict be unanimous? In 1974 the Public Guardian of Santa Barbara was named conservator of the person and estate of objector (conservatee). On 24 November 1975, the public guardian filed a petition to reestablish the conservatorship for an additional year due to the alleged continuing grave disability. (§ 5361.) At trial, the conservatee requested the jury be instructed a verdict adverse to the conservatee must be unanimous and be based upon proof beyond reasonable doubt. However, the trial court instructed the jury to apply the preponderance of evidence standard of proof. The trial court also instructed the jury its verdict must be supported by a three-quarters majority. The jury unanimously found conservatee to be gravely disabled.
LANTERMAN-PETRIS-SHORT ACT
The present case concerns only the grave disability provisions of the Act. We preface our analysis with a brief outline of these provisions.
The Act defines grave disability as the inability, due to mental disorder, to provide for one's personal needs for food, clothing and shelter. (§§ 5008, subd. (h), 5350, 5352.)
Grave disability conservatorship proceedings are initiated by application from any individual alleging a person is gravely disabled and requesting evaluation of the person's condition. (§ 5201.) The application is made to a person or agency designated by the county. (Id.) The designated person or agency screens the application to determine whether the allegations are supported by probable cause and whether the person will submit to voluntary evaluation. (§ 5202.) If probable cause exists but the person will not voluntarily allow evaluation, the agency or person petitions the superior court for court-ordered evaluation. (Id.) This petition must be accompanied by a confidential report containing findings of the prepetition screening. (Id.) Any individual seeking petition for court-ordered evaluation knowing the person is not gravely disabled is guilty of a misdemeanor and subject to civil liability for damages. (§ 5203.) If the court orders evaluation, the person may be taken to a facility designated by the county for evaluation and treatment. (§ 5206.) Evaluation must occur as soon as possible and in no event may the person be detained for more than 72 hours. (Id.) Within the 72-hour period, a person detained for evaluation must either be released, recommended for voluntary care, certified for intensive treatment, or recommended for conservatorship. (§§ 5152, 5206.)
If the patient does not volunteer for further treatment, yet is not ready for release, the professional staff of the facility may certify the patient for not more than 14 days of intensive treatment. Certification is filed with the court and served on the patient's attorney or the public defender. (§ 5253.) At the end of the 14-day period the patient must be released if conservatorship has not been established. (§ 5254.)
Upon recommendation by the professional person in charge of the evaluating facility, the appropriate county officer undertakes investigation. (§§ 5352, 5351.) If the investigation supports the evaluating professional, the county officer commences conservatorship proceedings in the superior court. (§ 5352.) The officer files a petition with the court setting forth the relevant facts, recommending conservatorship only if no alternative is available (§ 5354), and designating the most suitable person as conservator. (§ 5355.) The investigator's report, filed with the court, must include recommendations concerning "the powers to be granted to, and the duties to be imposed upon the conservator . . . ." (§ 5356.) The report must also make recommendations as to whether the conservatee may be allowed to drive a motor vehicle and to enter into contracts. (§ 5357.) Generally, a conservator has all the powers of a guardian of the estate under Probate Code section 1852. Additional powers of estate management (Prob.Code, § 1853) may be recommended by the investigator after consultation with the professional person. (§ 5360.)
[143 Cal.Rptr. 896]The Act contains extensive personal safeguards. The validity of the 72-hour and 14-day emergency commitments may be challenged by proceedings in habeas corpus. (§§ 5275-5278.) Section 5365 recognizes the proposed conservatee's right to appointed counsel within five days after filing the petition. This right continues after establishment of the conservatorship. Section 5350, subdivision (d), recognizes the proposed conservatee's right to a jury trial. Further, a conservatee has the right to petition the superior court for rehearing every six months. (§ 5364.) No presumption of incompetence attaches to a former conservatee. (§ 5368.)
The court may not commit the conservatee. (§ 5002.) Commitment may be made only by the conservator and then only if the conservatorship order so provides. (§ 5358.) Any commitment must be to the institution closest to the conservatee's home. (Id.) The conservatee may also be placed in his own home or the home of a relative. Commitment of the conservatee is deemed a voluntary admission. (§ 6000, subd. (a).) The conservatee may leave the hospital at any time if the conservator gives the required notice. (§ 6002.)
The conservatorship terminates automatically after one year. (§ 5361.) Upon termination, the conservatee has the right to release from an institution on request. (§ 5361.)
For the reasons discussed below, we conclude the proper standard of proof in grave disability proceedings under the Act is clear and convincing evidence. We further conclude the jury verdict may be supported by a three-quarters majority.
STANDARD OF PROOF
The conservatee contends she was entitled to a jury instruction requiring proof beyond reasonable doubt. The petitioner, on the other hand, asserts the Act requires only proof by a preponderance of the evidence.
The Act does not specify a standard of proof. However, it does incorporate by reference Probate Code conservatorship provisions. (§ 5350.) Although Probate Code provisions state that civil trial procedures are applicable, the provisions do not specify a particular standard of proof. Evidence Code section 115 states the general burden of proof rule, providing in relevant part: "Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence." (Italics added.) The burden of proof "otherwise provided by law" includes decisional law. (Evid.Code, § 160; People v. Burnick (1975) 14 Cal.3d 306, 313-314, 121 Cal.Rptr. 488, 535 P.2d 352.) Under these circumstances, it is incumbent upon this court to determine the appropriate burden of proof in light of the policies underlying the substantive law. (People v. Burnick, supra, at p. 314, fn. 5, 121 Cal.Rptr. 488, 535 P.2d 352.)
The three traditional standards of proof, (1) evidence beyond a reasonable doubt, (2) clear and convincing evidence, and (3) preponderating evidence, represent "an attempt to instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." (In re Winship (1970) 397 U.S. 358, 370, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368 (Harlan, J., concurring).) As the seriousness of the consequences resulting from an erroneous judgment increase, a stricter standard is required to mitigate against the possibility of error. (People v. Burnick, supra, 14 Cal.3d 306, 310, 121 Cal.Rptr. 488, 535 P.2d 352.) In the context of the present case, the applicable standard should be determined in light of the nature and purpose of the proceedings, the potential deprivation of liberty, and the stigma incurred. (Id., at pp. 315, 319, 321, 121 Cal.Rptr. 488, 535 P.2d 352.)
Whether a proceeding is denominated civil or criminal, its nature and purpose must be ascertained by examining its true character. (In re Winship, supra, 397 U.S. 358, 365-366, 90 S.Ct. 1068, 25 L.Ed.2d 368; In re Gault (1967) 387 U.S. 1, 49-50, 87 S.Ct. 1428, 18 L.Ed.2d 527; Specht v. Patterson (1967) 386 U.S. 605, 608-609, 87 S.Ct. 1209, [143 Cal.Rptr. 897] 18 L.Ed.2d 326.) Examination of grave disability proceedings discloses they are essentially civil in nature. Grave disability is unrelated to criminal conduct. The proceedings are neither initiated by nor connected with criminal conviction. (Cf. Specht v. Patterson, supra, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326; People v. Burnick, supra, 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352.) The Act seeks simply to provide care for those unable to satisfy their personal needs for food, clothing, and shelter. (§§ 5008, subd. (h), 5350, 5352.) The state's purpose is solely one of remedial treatment (People v. Valdez (1968) 260 Cal.App.2d 895, 904, 67 Cal.Rptr. 583); it seeks neither retribution nor protection of society the government's primary interests in criminal prosecutions. (Specht v. Patterson, supra, 386 U.S. at pp. 608-609, 87 S.Ct. 1209; People v. Feagley (1975) 14 Cal.3d 338, 361-373, 121 Cal.Rptr. 509, 535 P.2d 373.) The Act serves to protect the person from the consequence of his own infirmity rather than to protect society from the person. When and if the conservatee is confined, confinement occurs either in the private residence of a relative or in the hospital nearest the conservatee's home. Accordingly, it must be concluded proceedings pursuant to the Act are essentially civil, their nature and purpose being remedial. (In re Gary W. (1971) 5 Cal.3d 296, 302-303, 96 Cal.Rptr. 1, 486 P.2d 1201.)
We are not unmindful of the potential deprivation of liberty for a gravely disabled conservatee. Such person may be confined in a hospital for up to one year. (§ 5361.) However, potential confinement is controlled by extensive statutory safeguards. Confinement does not necessarily follow establishment of the conservatorship. (§ 5358.) If it occurs at all, confinement is never in a criminal setting. (§ 5358.) Further, the conservatee is entitled to two hearings during the one-year period in addition to initial judicial determination. (§ 5364.) The conservatee may also be released within one year if the conservator gives requisite notice. (§ 6000.) At the end of one year, the conservatee has a right to immediate release. (§ 5361.)
Some degree of stigma may attach to a person judicially determined to have been gravely disabled. However, the stigma is different both in degree and kind from that following criminal conviction or involuntary commitment as a mentally disordered sex offender. Criminal convictions carry society's opprobrium based on fear and distrust. A gravely disabled person is far more likely to be viewed by society with compassion instead of fear. A prior criminal conviction may impose continuing legal impairment. The Act, on the other hand, prohibits any presumption of incompetence. (§ 5368.)
Balancing the benefit and purpose of the Act against adverse consequences to the individual leads us to conclude the proper standard is clear and convincing proof. (See, Woodby v. Immigration & Naturalization (1966) 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362; Chaunt v. United States (1960) 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120; Nishikawa v. Dulles (1958) 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659.)
The less demanding standard of preponderating evidence would be improper. While this standard would allow full and efficient implementation of the statutory purpose, it would fail to adequately safeguard the individual's rights. The consequences of a determination of grave disability may result in confinement for one year. This potential deprivation of liberty dictates a higher standard of proof be used to minimize risk of error.
Conversely, requiring the stricter standard of proof beyond a reasonable doubt would be inappropriate. While insulating the individual from the possibility of erroneous decision, this standard may also prevent individuals from receiving sorely needed aid. It must be remembered that while the consequences of an erroneous judgment finding a person gravely disabled are substantial, the consequences of an erroneous judgment finding a person not to be gravely disabled may well be more severe. In the latter case, an individual may quite literally be left to languish in the streets. Application of the criminal standard would [143 Cal.Rptr. 898] threaten the beneficial statutory purpose while increasing the stigma. Conservatee's reliance upon In re Winship, supra, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 and People v. Burnick, supra, 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352, is misplaced. Unlike the situation presented in the instant case, those cases involved criminal proceedings. In both cases the consequence of an adverse decision subjected the individual to the possibility of confinement in a penal institution. The state's asserted interest was primarily the protection of society. Both cases concerned much greater deprivation of liberty than is here at issue. In Burnick the defendant was confined for an indeterminate period. In Winship the defendant was subject to potential confinement for six years. Further, the proceedings reviewed in Winship carried the greater stigma of a criminal conviction and in Burnick the additional burden of mentally disordered sex offender.
JURY VERDICT
The appropriate standard being clear and convincing proof, this case must be remanded for retrial. Thus, the trial court must once again address the question whether a civil jury verdict is permissible. In the interest of providing guidance to the trial court and of avoiding unnecessary appellate review, it is incumbent upon this court to address the issue.
While the Act guarantees potential conservatees the right to a jury trial, it is silent as to whether the jury's verdict must be unanimous. (§ 5350, subd. (d).) As noted, however, the Act incorporates by reference Probate Code procedures for conservatorships. (§ 5350.) The Probate Code provides for proceedings in conformity with the rules of practice in civil actions. (Prob.Code, §§ 1702, 1230, 1233; see Prob.Code, § 1755.) A verdict in a civil action must be supported by a three-fourths majority of the jury. Thus, the Legislature has provided for civil jury verdicts in grave disability cases. Accordingly, the issue is whether the Legislature's decision is constitutional.
While the Constitution mandates unanimous verdicts in criminal proceedings, it permits a three-fourths jury verdict in civil cases. (Cal.Const., art. I, § 16; People v. Feagley, supra, 14 Cal.3d 338, 352, 121 Cal.Rptr. 509, 535 P.2d 373; People v. Superior Court (Thomas) (1967) 67 Cal.2d 929, 932, 64 Cal.Rptr. 327, 434 P.2d 623.) Grave disability proceedings under the Act being civil in nature, we conclude the Legislature's decision does not violate the basic constitutional provision concerning the right to a jury.
In contrast, the Act provides for unanimous jury verdicts in imminently dangerous proceedings. (§ 5303.) Conservatee contends it violates the equal protection clauses of the state and federal Constitutions to deny persons subject to grave disability proceedings the right to a unanimous jury verdict while granting such a right to persons subject to imminently dangerous proceedings.
The equal protection clauses (U.S.Const., Amend. XIV; Cal.Const., art. I, § 7, subd. (b)) require that persons similarly situated receive like treatment under the law. (E. g., Reed v. Reed (1971) 404 U.S. 71, 75-76, 92 S.Ct. 251, 30 L.Ed.2d 225; Brown v. Merlo (1973) 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212; Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 456 P.2d 645.) Classifications must be reasonable in light of the purpose to be served. (E. g., Rinaldi v. Yeager (1966) 384 U.S. 305, 308-309, 86 S.Ct. 1497, 16 L.Ed.2d 577; Brown v. Merlo, supra, at p. 861, 106 Cal.Rptr. 388, 506 P.2d 212; Hayes v. Superior Court (1971) 6 Cal.3d 216, 223, 98 Cal.Rptr. 449, 490 P.2d 1137.)
The verdict disparity between imminent danger proceedings and grave disability proceedings is justified because the persons subject to the different procedures are not similarly situated. Unlike a gravely disabled person, an imminently dangerous person poses a threat of harm to others. This danger gives rise to a governmental interest, analogous to the governmental interest in criminal proceedings. When the government's actions are motivated not only by [143 Cal.Rptr. 899] benevolence towards the individual, but also by an interest in protecting others from the [574 P.2d 1251] individual's behavior, potential for abuse exists. The proceedings may be misused as a substitute for criminal prosecution, justifying the additional safeguard of jury unanimity to protect the individual against the risk of error. (See People v. Feagley, supra, 14 Cal.3d 338, 361, 121 Cal.Rptr. 509, 535 P.2d 373 et seq.) This additional governmental interest is reflected by the fact that commitment of those found to be imminently dangerous is mandatory. (§ 5304.) Because this interest is not present in grave disability proceedings, imminently dangerous and gravely disabled persons are not similarly situated.
The purpose of the Act's grave disability provisions is to provide prompt, short-term treatment and care to those unable to feed, clothe, and shelter themselves. Obviously, the Legislature's classification in light of this purpose is reasonable.
CONCLUSION
The nature and purpose of the Act's grave disability proceedings, the potential deprivation of liberty to the conservatee, and the potential stigma all mandate a standard of clear and convincing evidence. The Legislature's decision to permit a civil jury verdict to support a finding of grave disability is consistent with constitutional requirements.
The order reestablishing conservatorship and appointment of conservator is reversed.
RICHARDSON, MANUEL and SULLIVAN (Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council), JJ., concur.
BIRD, Chief Justice, concurring and dissenting.
Although I concur with the majority that the order entered below should be reversed, I must respectfully dissent as to the reasoning by which that result is reached.
Previous decisions of this court clearly direct that proof beyond a reasonable doubt and a unanimous jury verdict are the proper standards to apply when a conservatorship is established under the Lanterman-Petris-Short Act's (LPS Act) grave disability provisions, which include the power to involuntarily commit a conservatee to a state mental institution for up to a year.
See Welfare and Institutions Code section 5350 et seq. Unless otherwise specified, all statutory references herein are to the Welfare and Institutions Code.
I
In December 1974, respondent, the Public Guardian of the County of Santa Barbara, was named conservator of the person and estate of appellant, Mabel Roulet. She was given the power to confine Ms. Roulet in a state institution. Pursuant to the directions of respondent, appellant was placed in Camarillo State Hospital. In November 1975, respondent petitioned under sections 5350 and 5361 to reestablish the conservatorship over appellant for an additional year because of appellant's alleged continuing grave disability due to a mental disorder.
At the time of the recommitment proceeding, appellant was 59 years old and a resident of Camarillo State Hospital. According to the conservatorship reevaluation form filled out by the physicians at the state hospital, appellant could not provide for her basic needs because "(s)he is so confused, and disorganized that she is unable to make daily living plans. If she has some funds she will waste (sic) on cigarettes and drinking." The form indicated that appellant was unwilling to accept treatment voluntarily because ". . . she feels she is not mentally ill."
The public defender was appointed (§ 5365) and requested a jury trial for appellant (§ 5350, subd. (d)). That trial was held in the Superior Court of Santa Barbara County on January 15, 1976. Although appellant requested that the jury be instructed to return a unanimous verdict using the beyond a reasonable doubt standard of proof, the court used the preponderance of [143 Cal.Rptr. 900] the evidence standard and required only three-fourths of the jury to agree as to the [574 P.2d 1252] verdict. The jury found appellant to be a gravely disabled person.
How the jury voted is not entirely clear from the record. The clerk's transcript contains the verdict returned by the jury, but that form does not indicate the number of jurors concurring. The minute entry of the hearing does not show that the jury was polled. The order appealed from indicates that the verdict was unanimous.
The trial court entered an order reestablishing the conservatorship and granted respondent numerous powers including the power to institutionalize appellant (i. e., to continue her commitment), and to require her to receive treatment related specifically to remedying her "grave disability." (§ 5358.) The court further ordered that appellant lose the privilege of possessing a driver's license and the right to enter into contracts without the consent and approval of the conservator. (§ 5357.)
Ms. Roulet appealed. The Court of Appeal reversed the order reestablishing the conservatorship, unanimously holding that the reasonable doubt standard must be applied. Thereafter, this court granted the conservator's petition for hearing.
II
In People v. Burnick (1975) 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352, this court held that proof beyond a reasonable doubt is required under the due process clause of article I, section 7, subdivision (a), of the California Constitution and of the Fourteenth Amendment to the United States Constitution whenever (1) a serious deprivation of liberty will result from a finding against an individual and (2) the finding will result in a stigmatization of that individual's good name and reputation. There is no question that both of these criteria have been met.
A. DEPRIVATION OF LIBERTY
In considering the deprivation of liberty issue, it is instructive to ascertain exactly what happens to an individual who is subjected to a grave disability proceeding. When the establishment of a conservatorship is recommended, the court may appoint a temporary conservator who has the power to keep the individual in a treatment facility for up to six months pending the outcome of a trial on the issue of grave disability. (§§ 5352.1, 5353.) If the individual is found to be "gravely disabled," the court then appoints a conservator and specifies the powers which that person will possess. (§§ 5357, 5358.) One of the principal powers which the court may grant a conservator is the right to place a conservatee in an institution. Unlike a person who is found to be imminently dangerous to others and can be confined for a maximum of 90 days (§§ 5300-5306), the person who is found to be "gravely disabled" can be involuntarily confined in a mental hospital for up to a year by his or her conservator, with the possibility of additional year-long extensions. (§§ 5358, 5361.) The period of temporary conservatorship is not included in the one-year period. (§ 5361.) If the conservator petitions to reestablish an expiring conservatorship, the court may order the conservatee confined past the termination date until renewal proceedings are completed. (§ 5361.) In effect, these statutes assure in many cases an unbroken and indefinite period of state-sanctioned confinement.
This court has already recognized that commitment to a state mental hospital itself results in a serious deprivation of personal liberty. In In re Roger S. (1977) 19 Cal.3d 921, 929, 141 Cal.Rptr. 298, 302, 569 P.2d 1286, 1290, this court specifically concluded that involuntary confinement in a mental hospital impinges directly on the liberty interest of the patient: "Not only is there physical restraint, but there is injury to protected interests in reputation (see Goss v. Lopez, supra, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725, 734-735; Wisconsin v. Constantineau (1971) 400 U.S. 433, 437 (91 S.Ct. 507, 27 L.Ed.2d 515, 519)), an interest in not being improperly or unfairly stigmatized as mentally ill or disordered. . . ." Earlier in that opinion, this court pointed out that " '(p)ersonal liberty is a [143 Cal.Rptr. 901] fundamental interest, second only to life itself, as an interest protected under both [574 P.2d 1253] the California and United States Constitutions.' (People v. Olivas (1976) 17 Cal.3d 236, 251 (131 Cal.Rptr. 55, 551 P.2d 375).) It is beyond dispute that a principal ingredient of personal liberty is 'freedom from bodily restraint' . . . ." (Id., at p. 927, 141 Cal.Rptr. at p. 301, 569 P.2d at p. 1289, emphasis added.)
In re Roger S. is not the only opinion in which this court has recognized the serious loss of liberty which results from commitment to a state mental hospital. In Burnick, this court cited a federal court of appeals opinion to emphasize " 'the indisputable fact that civil commitment entails a "massive curtailment of liberty" in the constitutional sense. Humphrey v. Cady, 1972, 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394. The destruction of an individual's personal freedoms effected by civil commitment is scarcely less total than that effected by confinement in a penitentiary. . . .' " (People v. Burnick, supra, 14 Cal.3d at p. 323, 121 Cal.Rptr. at p. 499, 535 P.2d at p. 363, quoting from Donaldson v. O'Connor (5th Cir. 1974), 493 F.2d 507, 520, judgment vacated and cause remanded (1975) 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396.) Again, in People v. Olivas (1976) 17 Cal.3d 236, 244-245, 131 Cal.Rptr. 55, 60, 551 P.2d 375, 380, this court stated, "While wards confined in institutions of the Youth Authority may often experience greater freedom within the institution than individuals confined in state prisons or mental hospitals (see People v. Burnick (1975) 14 Cal.3d 306, 319-320 (121 Cal.Rptr. 488, 535 P.2d 352)), they are nevertheless incarcerated against their will, a most basic form of personal liberty deprivation." (Emphasis added.)
The majority opinion never deals with these previous decisions of this court which recognize that confinement in a mental hospital does result in a most serious deprivation of personal liberty. Apparently the majority find comfort in their conclusion that "confinement is never in a criminal setting." (Ante, p. 897 of 143 Cal.Rptr., p. ---- of --- P.2d.) However, no explanation is given as to why confinement against one's will, even though in a "noncriminal" setting, does not result in a serious deprivation of personal liberty. Further, the opinion is in error when it states that confinement never occurs in a criminal setting.
Recent statistics from the California Department of Health (Ann.Rep., State Hospitals for the Mentally Disordered (1975-1976) Center for Health Statistics, Apr. 1977, table 23, p. 40, hereafter cited as Ann.Rep.) indicate that conservatees under the LPS Act are routinely placed at Atascadero and Patton State Hospitals, which contain approximately 60% And 40%, respectively, of the mentally disordered sexual offenders (see § 6300 et seq.) in state institutions as of June 30, 1976. During fiscal year 1975-1976, for example, out of the 1,325 conservatees admitted to state hospitals under sections 5358 and 5353, 23 were admitted to Atascadero and 140 to Patton. (Ann.Rep., supra, table 22, p. 39.) Of the 1,956 total inpatient conservatees in the state hospitals on June 30, 1976, 102 were at Atascadero and 126 were at Patton. (Id., Table 23, p. 40.) The 102 conservatees at Atascadero comprised almost 10% Of the total population of that institution (1,045), and the 126 at Patton comprised more than 15% Of the total population of that hospital (823). (Ibid.)
In Burnick, this court discussed Atascadero State Hospital: "Nor is there any doubt that such commitment to a 'state hospital' results in a real deprivation of liberty. Like all persons found to be treatable mentally disordered sex offenders in California, Burnick was committed by the court to Atascadero State Hospital. Let us not deceive ourselves as to the nature of that institution. (Cf. In re Gault (1967) supra, 387 U.S. 1, 27, 87 S.Ct. 1428, 18 L.Ed.2d 527, 545-546.) It was frankly described as follows by a distinguished body of the medical profession. 'In its physical appearance, this is much more like a prison than a hospital. In its architectural planning, it disregards the modern psychiatric concept of the therapeutic community. There are bare corridors, bars, iron gates, rows of cells all the stigmata of punishment rather than treatment. [143 Cal.Rptr. 902] Patients who occupy individual rooms are locked out of them during the [574 P.2d 1254] day and have no opportunity to withdraw for privacy. Patients in wards have a reasonable amount of mobility from one area of the hospital to another, although security precautions are in evidence everywhere . . . . (P) Externally, the plant has a misleadingly attractive appearance. Internally, despite its dehumanizing attributes, it is well-maintained and well-equipped and might be characterized as a sanitary dungeon.' Other observers have confirmed this description." (Fns. omitted.) (People v. Burnick, supra, 14 Cal.3d at pp. 319-320, 121 Cal.Rptr. at p. 496, 535 P.2d at p. 360.)
The "gravely disabled" person for whom a conservatorship has been established does not, however, face only the potential loss of his or her right to "freedom from bodily restraint"; that person loses many other liberties as well. For example, the conservator is also given the powers granted to the guardian of an incompetent in Chapters 7, 8 and 9 of Division 4 of the Probate Code. (§ 5357; Prob.Code, § 1852.) These include: payment of the conservatee's debts and collection or discharge of debts owed the conservatee (Prob.Code, § 1501); management of the conservatee's estate, including sale or encumbrance of the conservatee's property (Prob.Code, §§ 1502, 1530); commencement, prosecution, and defense of actions for partition of the conservatee's property interests (Prob.Code, §§ 1506-1508); disposition of the conservatee's money or other property for court-approved compromises or judgments (Prob.Code, §§ 1510, 1530a); deposit of the conservatee's money in a bank, savings and loan institution, or credit union (Prob.Code, § 1513); the giving of proxies to vote shares of the conservatee's corporate stocks (Prob.Code, § 1517); and the borrowing of money when it will benefit the conservatee (Prob.Code, § 1533). In addition, the court may grant the conservator any or all of the powers specified in Probate Code section 1853. (See § 5357.)
These powers are as follows: "To institute and maintain all actions and other proceedings for the benefit of and to defend all actions and other proceedings against the conservatee or the conservatorship estate; to take, collect and hold the property of the conservatee; to contract for the conservatorship and to perform outstanding contracts and thereby bind the conservatorship estate; to operate at the risk of the estate any business, farm or enterprise constituting an asset of the conservatorship, to grant and take options; to sell at public or private sale; to create by grant or otherwise easements and servitudes; to borrow money and give security for the repayment thereof; to purchase real or personal property; to alter, improve and repair or raze, replace and rebuild conservatorship property; to let or lease property for any purpose including exploration for and removal of gas, oil and other minerals and natural resources and for any period, including a term commencing at a future time; to loan money on adequate security; to exchange conservatorship property; to sell on credit provided that any unpaid portion of the selling price shall be adequately secured; to vote in person or by proxy all shares and securities held by the conservator; to exercise stock rights and stock options; to participate in and become subject and to consent to the provisions of any voting trust and of any reorganization, consolidation, merger, dissolution, liquidation or other modification or adjustment affecting conservatorship property; to effect necessary insurance for the proper protection of the estate, to pay, collect, compromise, arbitrate or otherwise adjust any and all claims, debts or demands upon the conservatorship, including those for taxes; to abandon valueless property, and to employ attorneys, accountants, investment counsel, agents, depositaries and employees and to pay the expense therefor from the conservatorship estate." (Prob.Code, § 1853.)
Further, an individual found to be "gravely disabled" may suffer numerous statutory disabilities, including possible loss of the following rights: to remain licensed to practice a profession (e. g., law (Bus. & Prof.Code, § 6007, subd. (a)); medicine (Bus. § Prof.Code, §§ 2416, 2417)); to continue to hold certain public offices (Gov.Code, § 1770, subd. (b)); to remain employed as a teacher (Ed.Code, §§ 44932, 87732); to establish or maintain certain relationships [143 Cal.Rptr. 903] (e.g., custody of children (Civ.Code, § 232, subd. (a)(6)); marriage (Civ.Code,[574 P.2d 1255] §§ 4201, 4506)); to object to sterilization (§ 7254); to refuse certain types of medical treatment (§§ 5357, subds. (c), (d), 5358); to possess a driver's license (§ 5357, subd. (a)); to own or possess firearms (§§ 8100, 8102, 8103); to remain registered to vote (Elec.Code, § 701); and to enter into contracts (§ 5357, subd. (b)).
The statutes cited utilize several different phrases to refer to impairments resulting from mental disorders. Although these terms are not always identical to the language of the grave disability provisions of the LPS Act, a finding of grave disability would certainly be relevant to a determination of whether an individual falls within the ambit of these statutory provisions.
As this review illustrates, there can be no question that a finding of grave disability may result in serious deprivation of personal liberty. Indeed, a conservatee may be subjected to greater control of his or her life than one convicted of a crime.
B. STIGMA
The second issue which must be resolved is whether any "stigma" attaches when an individual is found to be "gravely disabled" due to a mental disorder. The majority argues that the public attitude toward a "gravely disabled" person is one of "compassion." (Ante, p. 897 of 143 Cal.Rptr., p. ---- of --- of P.2d.) Unfortunately, this is not accurate. There is compelling evidence, which this court acknowledged in Burnick, that society does not view mentally ill persons with compassion.
"In the ideal society, the mentally ill would be the subjects of understanding and compassion rather than ignorance and aversion. But that enlightened view, unfortunately, does not yet prevail. The stigma borne by the mentally ill has frequently been identified in the literature: 'a former mental patient may suffer from the social opprobrium which attaches to treatment for mental illness ( ) and which may have more severe consequences than do the formally imposed disabilities. Many people have an "irrational fear of the mentally ill. " The former mental patient is likely to be treated with distrust and even loathing; he may be socially ostracized and victimized by employment and educational discrimination. Finally, the individual's hospitalization and posthospitalization experience may cause him to lose self-confidence and self-esteem. (P) The legal and social consequences of commitment constitute the stigma of mental illness, a stigma that could be as socially debilitating as that of a criminal conviction.' (Fns. omitted.) (Developments in the Law Civil Commitment of the Mentally Ill (1974) 87 Harv.L.Rev. 1190, 1200-1201; accord, Rosenhan, On Being Sane in Insane Places (1973) 13 Santa Clara Law. 379, 385, and authorities cited in fn.11.)" (People v. Burnick, supra, 14 Cal.3d at p. 321, 121 Cal.Rptr. at p. 498, 535 P.2d at p. 362.)
In a study of stigma and mental illness, stigmatization was found to result from the categorization of a person as mentally ill rather than from the nature of that person's behavior. (Sarbin & Mancuso, Failure of a Moral Enterprise: Attitudes of the Public Toward Mental Illness (1970) 35 J. Consul. & Clinical Psychology 159.)
Only recently this court again recognized the stigma which attaches to an individual who is found to be mentally ill. As noted ante, in In re Roger S., supra, 19 Cal.3d at p. 929, 141 Cal.Rptr. at p. 302, 569 P.2d at p. 1290, this court stated, "Not only is there physical restraint (when an individual is confined in a mental hospital), but there is injury to protected interests in reputation (citations), an interest in not being improperly or unfairly stigmatized as mentally ill or disordered." (Emphasis added.) Indeed, while the majority assert, in support of their position, that the stigma facing the ex-mental patient is "different both in degree and kind from that following criminal conviction" (Ante, p. 897 of 143 Cal.Rptr., p. ---- of --- P.2d), the literature strongly indicates that if there is such a difference, the stigma attached to the "mentally ill" is the more severe. (See, e.g., Rabkin, Public Attitudes Toward Mental Illness: A Review of the Literature (1974) 10 Schizophrenia Bulletin 9; Tringo, The Hierarchy of Preference Toward Disability Groups (1970) 4 J. Special Ed. 295.)
There is little doubt, when the previous decisions of this court and the applicable provisions of the LPS Act are reviewed, that an individual who is found to be "gravely disabled" may be subjected both [143 Cal.Rptr. 904] to serious deprivation of liberty, including extended confinement, and to the loss of his [574 P.2d 1256] or her good name. Therefore, if the previous decisions of this court are followed, proof beyond a reasonable doubt is the proper standard to apply. (See, e.g., People v. Burnick, supra, 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352; People v. Feagley (1975) 14 Cal.3d 338, 121 Cal.Rptr. 509, 535 P.2d 373; People v. Thomas (1977) 19 Cal.3d 630, 139 Cal.Rptr. 594, 566 P.2d 228.)
Unfortunately, the majority never explain why the tests in Burnick, Feagley and Thomas for determining the standard of proof have not been met. Rather, these questions are side-stepped, and a "clear and convincing evidence" standard of proof is adopted based on the majority's conclusion that "gravely disabled" proceedings "are essentially civil, their nature and purpose being remedial." (Ante, p. 897 of 143 Cal.Rptr., p. ---- of --- P.2d.) This approach overlooks previous decisions of both this court and the United States Supreme Court which specifically state that "civil labels and good intentions" are not determinative of the proper standard of proof to be applied in a particular setting.
In In re Gault (1967) 387 U.S. 1, 50, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527, the United States Supreme Court concluded, "commitment is a deprivation of liberty. It is incarceration against one's will, whether it is called 'criminal' or 'civil.' " In a subsequent opinion, In re Winship (1970) 397 U.S. 358, 365-366, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, that court stated, "civil labels and good intentions do not themselves obviate the need for criminal due process safeguards . . . ." (See also Breed v. Jones (1975) 421 U.S. 519, 530, fn.12, 95 S.Ct. 1779, 1786, 44 L.Ed.2d 346 ("Nor does the fact 'that the purpose of the commitment is rehabilitative and not punitive . . . change its nature . . . . Regardless of the purposes for which the incarceration is imposed, the fact remains that it is incarceration. The rehabilitative goals of the system are admirable, but they do not change the drastic nature of the action taken. Incarceration of adults is also intended to produce rehabilitation.' (Citations.)").)
As Justice Brandeis cautioned, "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." (Olmstead v. United States (1928) 277 U.S. 438, 479, 48 S.Ct. 564, 572, 72 L.Ed. 944 (dis. opn. of Brandeis, J.).)
This court has also rejected reliance on a civil label: "(B)ecause involuntary commitment is incarceration against one's will regardless of whether it is called 'civil' or 'criminal' (citation), the choice of standard of proof implicates due process considerations which must be resolved by focusing not on the theoretical nature of the proceedings but rather on the actual consequences of commitment to the individual. (Citations.) (P) Two of those consequences (are) determinative: if the proceedings seriously put at risk both the personal liberty and the good name of the individual, the safeguard of proof beyond a reasonable doubt is required." (Emphasis added.) (People v. Thomas, supra, 19 Cal.3d at p. 638, 139 Cal.Rptr. at p. 598, 566 P.2d at p. 232, see also People v. Burnick, supra, 14 Cal.3d at pp. 315-316, 121 Cal.Rptr. 448, 535 P.2d 352; In re Gary W. (1971) 5 Cal.3d 296, 307, 96 Cal.Rptr. 1, 9, 486 P.2d 1201, 1209, ("the California Legislature has recognized that the interests involved in civil commitment proceedings are no less fundamental than those in criminal proceedings and that liberty is no less precious because forfeited in a civil proceeding than when taken as a consequence of a criminal conviction.").)
Since grave disability proceedings "seriously put at risk both the personal liberty and the good name of the individual, the safeguard of proof beyond a reasonable doubt is required." (People v. Thomas, supra, 19 Cal.3d at p. 638, 139 Cal.Rptr. at p. 598, 566 P.2d at p. 232.)
III
The majority conclude that a three-fourths jury verdict is appropriate in grave [143 Cal.Rptr. 905] disability proceedings, since these proceedings[574 P.2d 1257] are "civil in nature." (Ante, p. 898 of 143 Cal.Rptr., p. ---- of --- P.2d.) However, as was the case with the issue of standard of proof, labels are not determinative of the jury verdict issue. Previous decisions of this court direct that we consider "the consequences of commitment to the individual." (People v. Thomas, supra, 19 Cal.3d at p. 644, 139 Cal.Rptr. at p. 602, 566 P.2d at p. 236, see also People v. Feagley, supra, 14 Cal.3d at p. 351, 121 Cal.Rptr. 509, 535 P.2d 373.)
After noting that a mentally disordered sexual offender committed to a state mental hospital was entitled to the beyond a reasonable doubt standard of proof because he or she suffered a massive curtailment of liberty and lingering moral stigma, this court concluded in Feagley : "For the same reasons, a mentally disordered sex offender committed to such a hospital is entitled to a unanimous verdict." (People v. Feagley, supra, 14 Cal.3d at p. 351, 121 Cal.Rptr. at p. 517, 535 P.2d at p. 381, emphasis added.) Likewise, in Thomas, this court stated, "we have shown that a person committed as a narcotics addict suffers so severe a curtailment of liberty and so lingering a moral stigma that he is entitled to the same standard of proof beyond a reasonable doubt accorded to a criminal defendant. For identical reasons he is also entitled to the same guarantee of jury unanimity enjoyed by such a defendant." (People v. Thomas, supra, 19 Cal.3d at p. 644, 139 Cal.Rptr. at p. 602, 566 P.2d at p. 236, emphasis added.) Since, as shown ante, a person found to be "gravely disabled" suffers a severe curtailment of liberty and a lingering moral stigma, that person is not only entitled to the beyond a reasonable doubt standard of proof but is also entitled, for the same reasons, to a unanimous jury verdict.
Since the majority conclude that a three-fourths jury verdict is appropriate in grave disability proceedings, they must consider appellant's equal protection argument. Appellant contends that the LPS Act violates the equal protection clauses of the California and federal Constitutions (Cal.Const., art. I, § 7, subd. (a); U.S.Const., 14th Amend.) by providing for unanimous jury verdicts in imminently dangerous proceedings but not in grave disability proceedings. The majority state that this "verdict disparity between imminent danger proceedings and grave disability proceedings is justified because the persons subject to the different procedures are not similarly situated." (Ante, p. 898 of 143 Cal.Rptr., ---- of --- P.2d.) The distinction which the majority draws is that in grave disability proceedings the government's interest is solely one of benevolence toward the individual while in imminently dangerous proceedings the government has the additional interest of protecting others from that individual.
The majority's analysis of appellant's equal protection argument does not comport with this court's careful and detailed analysis of the equal protection clause set forth in Feagley. In Feagley, this court cited and discussed Baxstrom v. Herold (1966) 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620, a case analogous to the one at hand. (People v. Feagley, supra, 14 Cal.3d at pp. 353, 354, 121 Cal.Rptr. 509, 535 P.2d 373.) Baxstrom involved a New York statutory scheme which granted all persons civilly committed in New York a right to a jury trial, except for convicts whose prison terms were about to expire and who were determined by a court to require care in an institution for the mentally ill. The state argued that it had "created a reasonable classification differentiating the civilly insane from the 'criminally insane,' which (it defined) as those with dangerous or criminal propensities." (Baxstrom v. Herold, supra, 383 U.S. at p. 111, 86 S.Ct. at p. 763.) The Supreme Court rejected this argument, stating: "Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made. (Citation.) Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the [143 Cal.Rptr. 906] opportunity to show whether a person is [574 P.2d 1258] mentally ill at all." (Ibid.) That analysis applies with equal force here. (See also In re Gary W., supra, 5 Cal.3d at pp. 303-308, 96 Cal.Rptr. 1, 486 P.2d 1201.)
It is clear that under the LPS Act the provisions are such that it is easier to establish a conservatorship for an individual who is considered to be "gravely disabled" than it is to successfully petition for postcertification treatment for an individual because he or she is "dangerous to others." In grave disability proceedings, the trier of fact need only be presented with a general showing that the individual cannot provide for his or her basic personal needs due to a mental disorder. (§ 5008, subd. (h).) However, a much more exacting showing must be made in imminent danger proceedings, which require the establishment of threatened, attempted, or actual physical harm to the person of another as well as an imminent threat of physical harm to others by reason of a mental disorder. (§ 5300.)
Further, it is more difficult for an individual found to be gravely disabled to secure his or her release. A conservatee may be confined for up to a year, compared to the 90-day maximum for a person adjudged imminently dangerous. Moreover, only one additional 90-day period of treatment may be ordered by the court for an imminently dangerous person and even then only if that person has threatened, attempted, or actually inflicted physical harm on another during the initial 90-day period. (§ 5304; People v. Feagley, supra, 14 Cal.3d at p. 358, fn. 14, 121 Cal.Rptr. 509, 535 P.2d 373.) A conservatorship, on the other hand, may be reestablished for additional one-year periods an indefinite number of times, as long as the condition of grave disability is found to continue. (§ 5361.)
Should the second 90-day period be sought for the imminently dangerous person, he or she may again request a jury trial, which must begin within 10 judicial days of the petition seeking the additional period (§ 5303), or just slightly over 3 months from the date of the initial jury trial. In contrast, while a conservatee may immediately petition for a rehearing, thereafter he or she must wait at least six months before having another opportunity to contest the matter. (§ 5364.)
In Feagley this court, comparing an analogous relationship between imminent danger and mentally disordered sexual offender proceedings, pointed out that "(o)ne would therefore expect the procedural safeguards in the latter proceeding to be commensurately greater. Instead, they are substantially lesser, in that the Legislature denies the mentally disordered sex offender the right to a unanimous jury verdict which it grants to a person committed under the LPS Act. This is common sense turned upside down, a discrimination without semblance of rational basis let alone a compelling state interest, and a wholesale denial of equal protection of the laws under both the California and federal Constitutions." (Fn. omitted.) (People v. Feagley, supra, 14 Cal.3d at p. 358, 121 Cal.Rptr. at p. 522, 535 P.2d at p. 386.)
IV
There is an additional consideration involved in the case before this court. Since a major function of standards of proof is to ensure the integrity of the factfinding and decision-making process, an examination of the extent to which LPS Act conservatorship procedures are subject to distortions that may impair accurate decisions is helpful in determining what standard of proof is necessary to eliminate those distortions.
See, e. g., Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases (1977) 86 Yale L.J. 1299, 1306-1307.
A proposed conservatee's only opportunity to protest the potentially massive invasion of his or her liberty and property interests, which conservatorship entails, is at trial on the issue of grave disability. In the typical case (including the case at bar), the potential conservatee is placed at an initial disadvantage because he or she is likely to [143 Cal.Rptr. 907] be confined prior to the trial either pursuant to a temporary conservatorship (§ 5353) or to the conservatorship which is to be [574 P.2d 1259] reestablished (§ 5358). These constraints limit the individual's ability to communicate freely with counsel, witnesses, and others in preparation for trial.
Moreover, the individual's pretrial behavior during confinement can be and normally is introduced at the grave disability hearing by mental health professionals to help justify their opinions and predictions that the individual is and will continue to be gravely disabled. Such testimony may be given weight beyond its inherent probative value by a factfinder searching for points of reference in an area of the law characterized by confusion. "Mental illness" is generally acknowledged to be a vague and uncertain concept. Categories of mental diseases are notoriously unclear, often overlapping, and regularly changing. Not surprisingly, there is little consistency in psychiatric diagnoses. There is also a well-documented tendency of psychiatric personnel to "overdiagnose" the existence of mental illness, sometimes based on the application of inappropriate criteria such as a psychiatrist's personal biases regarding a patient's age, race, sex, or social class. In addition, the literature reveals that some appointed counsel, regardless of how experienced they may be, tend to play a paternalistic rather than an advocacy role in commitment proceedings. A recent empirical study of practice [143 Cal.Rptr. 908] under the LPS Act confirms this observation. The combined effect of these factors the difficulty of defining mental illness, the factfinder's deference to psychiatric testimony, the tendency of psychiatrists to overdiagnose, and the paternalistic attitude of some appointed counsel lends strong support to the conclusion that proof beyond a reasonable doubt and jury unanimity are constitutionally mandated standards necessary to assure the fairness of the decision-making process by which LPS Act conservatorships are established.
A recent study of the LPS Act points out that testimony about an individual's failure to adjust in a hospital setting is frequently relied on to support a finding of grave disability. However, such testimony may have little, if any, bearing on the basis question posed to the finder of fact that is, whether or not the proposed conservatee "as a result of a mental disorder, is unable to provide for his basic personal needs for food, clothing, or shelter" (§ 5008, subd. (h)(1)). (See Warren, Involuntary Commitment for Mental Disorder: The Application of California's Lanterman-Petris-Short Act (1977) 11 Law & Society Rev. 629.)
Both judges and juries tend to defer to psychiatric judgments regarding behavior that is purportedly indicative of a mental disorder. (For a recent empirical study noting the deference of the factfinder to psychiatric opinion testimony in civil commitment proceedings in Arizona, see Wexler & Scoville, The Administration of Psychiatric Justice: Theory and Practice in Arizona (1971) 13 Ariz.L.Rev. 1, 60.)
There is virtually no authority, statutory or otherwise, to provide guidance to a jury in its determination of the term "gravely disabled." In Title 9, California Administrative Code, section 813, "mental disorder" is defined as "any of the mental disorders as set forth in the Diagnostic and Statistical Manual of Mental Disorders (Current Edition) of the American Psychiatric Association." This definition only serves to highlight the lack of standards and potential for confusion, as the American Psychiatric Association frequently alters its definitions of what constitutes a mental disorder. (See, e. g., Jackson, The Revised Diagnostic and Statistical Manual of the American Psychiatric Association (1970) 127:1 Am.J.Psychiatry 65.)
This court recently took notice of this lack of diagnostic consistency: "It must be conceded that psychiatrists still experience considerable difficulty in confidently and accurately diagnosing mental illness. . . . " (People v. Burnick, supra, 14 Cal.3d at p. 326, 121 Cal.Rptr. at p. 501, 535 P.2d at p. 365, emphasis in original.) Chief Justice Burger has also recently commented on the "uncertainties of psychiatric diagnosis and therapy," noting that "the reported cases are replete with evidence of the divergence of medical opinion in this vexing area." (O'Connor v. Donaldson (1975) 422 U.S. 563, 579, 95 S.Ct. 2486, 2495, 45 L.Ed.2d 396 (conc. opn. of Burger, C. J.).) (See Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom (1974) 62 Cal.L.Rev. 693, 699-708, and studies cited therein.)
See Note, The Role of Counsel in the Civil Commitment Process: A Theoretical Framework (1975) 84 Yale L.J. 1540, 1553-1555; see also Shah, Some Interactions of Law and Mental Health in the Handling of Social Deviance (1974) 23 Cath.U.L.Rev. 674.
See, e. g., Ennis & Litwack, supra, 62 Cal.L.Rev. at pp. 719-734; Roth & Lerner, Sex-Based Discrimination in the Mental Institutionalization of Women (1974) 62 Cal.L.Rev. 789.
See, e. g., Litwack, The Role of Counsel in Civil Commitment Proceedings: Emerging Problems (1974) 62 Cal.L.Rev. 816, 827-831 and authorities cited therein; Andalman & Chambers, Effective Counsel for Persons Facing Civil Commitment: A Survey, a Polemic, and a Proposal (1974) 45 Miss.L.J. 43.
The study suggests complacency on the part of appointed counsel. (Warren, supra, 11 Law & Society Rev. at p. 633.) A study in North Carolina noted that "(i)nformal conversations with judges and attorneys suggest that they defer to psychiatric opinion because they feel they lack the requisite expertise and want to obtain help for those in need." (Hiday, Reformed Commitment Procedures: An Empirical Study in the Courtroom (1977) 11 Law & Society Rev. 651, 665.)
V
For the reasons stated above, the due process clauses of both the California and federal Constitutions require that proof beyond a reasonable doubt and a unanimous jury verdict be applied to conservatorship proceedings under the LPS Act. This court's decisions in Burnick, Feagley and Thomas follow this constitutionally mandated path in the area of civil commitments. There is no logical reason to diverge from that path in the present case. To turn back toward the repudiated criterion of the civil-criminal label serves only to exalt form over constitutional substance.
TOBRINER and MOSK, JJ., concur.
The Wisconsin Supreme Court has recently mandated minimum standards for attorneys appearing in civil commitment proceedings. Those standards call for "adversary counsel" who must represent a client "zealously within the bounds of the law." (State ex rel. Memmel v. Mundy (1977), 75 Wis.2d 276, 249 N.W.2d 573, 577.)