Does the court have discretion to order public conservator to initiate LPS conservatorship- Conservatorship of Karriker/Kennebrew
COUNTY OF LOS ANGELES v. The People, Real Party in Interest. (Kennebrew)
PEOPLE v. Jo Weber, as Public Conservator, etc., Objector and Appellant. (Karriker)
These cases has gained a fair amount of attention as it deals with a recurring issue of whether the public conservator can be ordered by the trial court to initiate LPS conservatorship proceedings. The reason these two cases come to light is that the ruling for each other appear to contradict each other. In re conservatorship of Karriker finds that the trial court cannot order the public conservator to initiate a conservatorship as that power remains only with the public conservator. However, the public conservator in re Conservatorship of Kennebrew was found to have abused its discretion and subsequently ordered to initiate a LPS conservatorship proceeding. As these two cases have garnered interest, several judges have striven to clarify the difference between the two cases.
To begin the conservatorship of Kennebrew (2013) took place after the Karriker decision which was in (2007).
THE PEOPLE, Plaintiff and Respondent, v. JAMES MICHAEL KARRIKER, Defendant and Respondent; JO WEBER, as Public Conservator, etc., Objector and Appellant Court of Appeal of California, First DistrictApr 11, 2007 149 Cal. App. 4th 763 (Cal. Ct. App. 2007) 149 Cal. App. 4th 76357 Cal. Rptr. 3d 412
The Karriker set the foundation for public conservator discretion in filing for several years. During the case, Karriker was being investigated for charges of battery. His counsel at the time advised the court that he was unfit to stand trial and would not be restored to competance in a reasonable time. Karriker Karriker was remanded to the custody of Napa State hospital to see if he could regain competency in three years or less. After his first year, Napa reported that he continued to manifest mental illness symptoms and advised that he be evaluated for LPS conservatorship. The criminal court suspended the proceedings and ordered that the public conservator begin the process of evaluation for LPS. The court ordered that he be evaluated by the public conservator to see if he qualified for LPS under Welf and Inst Code § 5350.
The public conservator evaluated him and determined that he was not fit for an LPS conservatorship. The psychiatrist submitted his opinion.
Based on the psychiatrist's report, the Conservator concluded that there was "insufficient evidence to justify filing a petition for LPS conservatorship for Mr. Karriker. The undersigned's conclusion is based on the lack of evidence that Mr. Karriker is unable to provide for his basic needs of food, clothing, or shelter as a result of a mental disorder or that he is presently unable or unwilling to accept treatment voluntarily."
The public conservator added that because Karriker's primary diagnosis was trauma and alcoholism related, he was ineligible for LPS conservatorship. In regards to whether Karriker could be subject to a probate conservatorship, the conservator contended that he was not eligible for that either because there were no beds available to take Karriker at the time should he be adjudicated. The public conservator denied both requests in a letter to the criminal court.
The trial court returned by stating that:
(2) Whenever a defendant is returned to the court pursuant to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (A) or (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant
The public conservator reminded the court that the discretion to initiate LPS proceedings under § 5350 lies with the public conservator and that the court would be abusing its discretion should it file a order compelling the public conservator to initiate an investigation. The trial court advised the public conservator that if it did not initiate proceedings, Karriker would likely not be restored to competency within the three year period and that he would remain a threat to others and himself. The public conservator issued another statement:
"[LPS] conservatorship is not a mechanism for keeping dangerous people off the streets. The point of [the] conservatorship is to take care of people who can't take care of themselves. [¶] . . . [¶] We just don't believe it's appropriate to place someone in an institute for mental disease perhaps . . . for their lifetime when they can't be treated there." The Conservator suggested that the proper solution for Karriker because of his dementia would be a less restrictive Probate Code conservatorship and placement in a secured skilled nursing facility.
Despite all of this the court issued a judgement and order demanding that the public conservator begin proceedings. The court cited:
"[i]t is not the conservator's duty to be the final arbiter of the defendants or society's status and needs. That is a job for a judge who is able to dispassionately review the conflicting evidence and decide the case."
The public conservator filed a timely appeal. The conservator cited that
"[m]andamus will not lie to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular manner."
With this the public conservator noted the difference between the need to perform a certain act and how the act is executed. The conservator contends that the trial court conflated the two and false claimed the public conservator abused its discretion when that was not a cognizable issue. The public conservator contended that in the case of grave disability the discretion lies only with the public conservator. The court added that should other members be able to initiate an LPS conservatorship, they would be playing the role of a prosecutor which is wholly inappropriate given the seriousness of the civil liberties taken away.
To allow anyone who may initiate a Probate Code conservatorship to assume the role of `prosecutor' in an LPS proceeding would run counter to these protections. The effect would be to eliminate a key element of a statutory structure designed to assure that abuses of the mental health system in the form of unwarranted commitments are avoided.
Another issue being addressed was the appropriateness of a murphy conservatorship.. The public conservator cited that Murphy conservatorships were to be used only in the case where the defendant was pending criminal charges and considered dangerous to others. Karriker did not fit the dangerousness criteria and public safety was not at stake with his release.
She contends that the determination of whether Karriker is gravely disabled as a result of a mental disorder and amenable to treatment under the Act, justifying the filing of a petition under the LPS Act, is vested solely in her discretion.
Further more the public conservator contends that in the case of Karriker, the conservatee did not meet either criteria for murphy or LPS. The conservatee was not pending criminal indictment at the time, was not dangerous, nor was he gravely disabled as a result of a serious mental illness. The court notes below how the legislative difference between the two kinds of gravely disabled criteria the patient must meet.
Chapter 3 of the LPS Act, beginning with section 5350, authorizes the creation of a renewable one-year conservatorship (§ 5361) for persons who are gravely disabled as a result of a mental disorder. The Act provides two alternative definitions of "gravely disabled." Under section 5008, subdivision (h)(1)(A), gravely disabled is defined as "[a] condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter." Under section 5008, subdivision (h)(1)(B), gravely disabled is defined as "[a] condition in which a person, has been found mentally incompetent under Section 1370 of the Penal Code and all of the following facts exist: [¶] (i) The indictment or information pending against the defendant at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person, [¶] (ii) The indictment or information has not been dismissed. [¶] (iii) As a result of mental disorder, the person is unable to understand the nature and purpose of the proceedings taken against him or her and to assist counsel in the conduct of his or her defense in a rational manner" (§ 5008, subd. (h)(1)(B)). A conservatorship imposed under the second definition is commonly referred to as a "Murphy conservatorship" after the legislator who sponsored the amendment that added the definition to the Act in 1974. (Stats. 1974, ch. 1511, pp. 3316-3324.) Under either definition, imposition of an LPS conservatorship is authorized only if the individual's impairment is the result of a "mental disorder."
The court of appeals reversed the order compelling the public conservator to initiate a conservatorship and the public conservator continued to hold discretion over its ministerial functions.
Conservatorship of Kennebrew revisits the case of whether the court can order the public conservator to initiate an LPS conservatorship. In the case of Kennebrew, the court revisits the role of the public conservator and whether they are entitled to full control over how they administer conservatorships.
Kennebrew was pending trial for criminal charges for killing a person. He was suffering from delusions resulting from dementia. He was found incompetent to stand trial and remanded to the Patton State hospital. Patton State hospital found that he was unlikely to regain competency in the given time limits and submitted a referral for LPS conservatorship. The public conservator found that LPS conservatorship would inappropriate given that his diagnosis was dementia. Dementia was not a diagnosis for which LPS conservatorship was appropriate. It did not fall under serious mental disorders in accordance to Welf and Inst 5000 et seq. The public conservator contended that since dementia is a diagnosis that was unlikely to ever improve, the county funding would be not appropriate as LPS conservatorship is intended for treating people.
diagnosis of dementia is not a qualifying mental disorder diagnosis under the Lanterman–Petris–Short Act (LPS Act), Welfare and Institutions Code section 5000 et seq.4 Because the condition of a patient with Alzheimer's type dementia is not likely to improve with treatment, the public guardian explained, county funds cannot be used for that purpose.
The court once more asked that the public conservator open an case. The evaluating psychiatrist at Patton deemed that Kennebrew posed a danger to others as he would be aggressive and did not take care of his ADLs. In lieu of the public conservator’s statement the probate division established a probate conservatorship. The trial court
found that the conservatorship established for Kennebrew by the probate department does not address the court's public safety concerns and does not preclude the criminal court from ordering a conservatorship under the LPS Act.
The public conservator upon receiving the order asked for relief in the form of a writ of mandate. The writ of mandate sought to reverse the order set forth by the trial court on the ground that the public conservator
that the public guardian's office has sole discretion to petition for conservatorship under the LPS Act, or to decline to file such a petition, and the superior court has no authority to order the public guardian to act as a conservator or to petition for conservatorship; and (2) that the public guardian's office correctly determined that Kennebrew is not eligible for a conservatorship under section 5008, subdivisions (h)(1)(A) or (h)(1)(B), because dementia is not a qualifying diagnosis for a conservatorship under the LPS Act.
The trial court ordered a stay of judgement until the court of appeals heard the matter and entered a judgement. The appellate court submitted its judgement and why the court order was not to be vacated through the reasons set forth.
The appellate court determined that in accordance to Penal Code section 1370.6 (§ 5008, subd. (h)(1)(B).)
a “Murphy conservatorship,” is one in which the conservatee is subject to a pending indictment or information charging him or her with a felony involving death, great bodily harm, or threat to the physical well-being of another; in which “as a result of mental disorder,” the conservatee is unable to understand or meaningfully participate in the pending criminal proceedings; and in which the conservatee has been found to be mentally incompetent under the procedures set forth in Penal Code section 1370.6 (§ 5008, subd. (h)(1)(B).)
The appellate court determined that since Kennebrew was at the time awaiting trial for murder charges administered under the penal code, he was candidate for LPS conservatorship or more specifically murphy conservatorship. The court added that due to the prior evidence entered during discovery about Kennebrew’s dangerous behaviour, the factor of dangerousness further qualified Kennebrew for LPS conservatorship.
“currently dangerous as the result of a mental disease, defect, or disorder.” (Conservatorship of Hofferber, supra, 28 Cal.3d at p. 178.)
The next issue the court addressed the appropriateness of the writ of mandate. The conservator contends that a writ of mandate is a tool for effectuating an act by a public official not to compel a official to act in a particular manner.
A traditional writ of mandate is appropriate “to compel a public official to perform an official act required by law.” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442.) Although mandamus cannot be used to compel an official to exercise discretion in a particular manner, it may issue in order to require that discretion is exercised consistent with the law.
The court contends that the even though the public conservator is correct in that assertion, the provisions of Karriker stipulate that the conservatee must pose be gravely disabled in accordance to Welf and Inst Code §5008, subdivision (h)(1)(A) whereas a murphy conservatorship required that the conservatee pose a present physical danger to others by reason of mental illness and be pending criminal indictment.
must be found to present a substantial danger of physical harm to others by reason of his mental disorder. (§ 5008, subd. (h)(1)(B).)
In re Karriker, the public conservator found that
concluded, there was no evidence that he is “unable to provide for his basic needs of food, clothing, or shelter as a result of a mental disorder․” (Id. at p. 771.) On that basis the investigator recommended that “ ‘establishment of a probate conservatorship would be inappropriate.’ ” (Ibid.) 8
The appellate court found that the conservatee’s potential placement was inadequate to protect the interests of the public in accordance with Karriker. (§§ 5350, subd. (a)(2); 5358, subd. (a)(1)(B); Karriker,supra, 149 Cal.App.4th at p. 778.)
The court also ruled that relegating dementia as a matter for probate conservatorship would not suffice as it would not keep the interests of the public in mind. The court contends that even though the legislature originally intended for dementia to be a probate matter, exceptions that benefit the public and the conservatee need to be kept in mind.
“Clearly,” the petition contends, the passage of Probate Code section 2356.5 was intended by the Legislature “to ensure that dementia patients would not be made conservatees under the LPS Act, but only under the Probate Code.”
Based on these deciding factors the appellate court lifted the stay and found that the public conservator had abused its discretion, and ordered that the conservator initiate proceedings.
These two cases beg the question and the issue of clarity and whether they can be upheld. In a presentation presented by the Los Angeles public conservator, the public conservator cited that even though the decision upheld the appellate courts order they continue to believe that the appellate court ruled incorrectly and misapplied the law. They speak of how the public conservator in the Kennebrew case is viewed as just carrying out the court orders and do not have any real input into how they administer conservatorships. The public conservator voiced concern over a new influx of cases following the Kennebrew decision since it broadened the criteria for referrals regarding Murphy conservatorship cases and dementia. The conservator fears that the court may push for murphy conservatorships when they are not in the best interest of the county or the patient. The county is already overworked when it comes to patient numbers so by adding the additional referrals for those patients might create lengthy delays. Another issue is what is a mental disorder and when is it a serious mental illness like bipolar/schizophrenia or when is a diagnosis like dementia considered a diagnosis under LPS..