LEGAL AUTHORITY UNDER GANDOLFO AND AZZARELLA AS FOUNDATION FOR DENYING WRITS POST P -CON.

LEGAL AUTHORITY PER GANDOLFO AND AZZARELLA AS FOUNDATION FOR DENYING WRITS POST P -CON.
 
The two cases that our counsel relies on when they discuss denying writs after the P-con hearing are In re Gandolfo, 36 Cal. 3d 889, 686 P.2d 669 (1984); In re Azzarella, 207 Cal.App.3d 1240, 254 Cal. Rptr. 922 (Cal. Ct. App. 1989). Again, This is an ongoing issue as Disability Rights California and Jewish Family Services tells patients that they can file for a writ post P-con establishment but when the conservatees request it, their attorneys say no and verbal “fights” ensue. 

Per CJER benchbook,
Habeas relief is not ordinarily available to challenge status as a conservatee, placement, or the conservator’s powers; the hearings built into the LPS Act will generally be adequate for resolving these questions. In re Gandolfo (1984) 36 C3d 889, 899 n5, 206 CR 149. Habeas relief, however, might be appropriate if the conservatee is illegally deprived of liberty, or the statutory review mechanisms are not working properly. 36 C3d at 898.
 
 
However, if we turn to the actual language of In re Gandolfo it first cites that unreasonable denial of [certain] freedoms essential to welfare of a conservatee under the Lanterman-Petris-Short Act might be proper subject of inquiry on habeas corpus. West's Ann.Cal.Welf. & Inst.Code § 5000 et seq. A conservator may limit a conservatee’s activities in a reasonable manner, for their own benefit, but cannot, without good reason, deny such freedom as is essential to her welfare thus begging the question of whether LPS Conservatees may be allowed to petition for writ of habeas corpus.
 
Some courts argue that an LPS Conservator is not arbitrarily confining or limiting the freedom of the conservatee upon his own initiative or own benefit. The conservator is acting per the instructions of the mental health court that assumed jurisdiction over the conservatee, and the court has given the conservator such limited instructions after a full hearing (with due process) and the court had decided that such limitations are the proper course of conduct and in the best interests of the conservatee.
 
 
Additionally, aside from the non-punitive nature of LPS proceedings, the LPS Act, has established several safeguards following the initial appointment of a LPS conservator. The code provides procedures for conservatees to challenge the validity and conditions of their conservatorships:

• The conservatee is entitled to a rehearing on the issue of whether he or she is gravely disabled and in need of the conservatorship. Welf & I C §5364.
• At any time, a conservatee may petition the court for a hearing to contest the rights denied under Welf & I C §5357 or the powers granted to the conservator under Welf & I C §5358. Welf & I C §5358.3.
• Conservatorships under the LPS Act terminate automatically after one year, at the end of which conservators must petition for reappointment with supporting medical evidence. Welf & I C § 5361
• On rehearing, a conservatee bears a lower burden of proving by a preponderance of the evidence that he or she is no longer gravely disabled. Baber v Superior Court (Hill) (1980) 113 CA3d 955, 965.

 
Based on this, Gandolfo held that habeas corpus is not a proper remedy to review errors which could be raised on appeal or by other appropriate remedies [such as the ones listed above].
 
Additionally courts could cite to this opinion and state that because the “precise degree of restriction appropriate to a patient may change from day to day or week to week” and changing the code to allow habeas corpus would only invite a flood of cases which would wreak havoc on the “continuing jurisdiction” of the mental health courts.
 
Now in a dissenting opinion, Bird J cites several contentions where writ of habeas corpus would be warranted. First there is some editorialization, “similarly situated persons are permitted unrestricted resort to simple and effective habeas corpus procedures … but LPS conservatees are required to use burdensome and infrequent proceedings in the conservatorship court to challenge the restrictiveness of their confinement. The great writ of habeas corpus should not be so limited”. 

Now first as in criminal courts, LPS conservatees would be entitled to habeas corpus relief if “unreasonable consequences should ensue” because of the limitations of the statutory review mechanisms. This would namely be a situation where the hospital conditions are so severe that it endangers the health and safety of a conservatee (e.g., overcrowding, physical abuse, lack of medical treatment) or which deprive a conservatee of fundamental rights (e.g., restrictions on visiting, or receipt of mail, or religious freedom). These are generally outside of the purview of a status review hearing or a re establishment hearing so a writ would allow a conservatee to address those issues rapidly.
 

• Habeas corpus relief available under Pen.Code, § 1473 for improper or illegal hospitalization. 

 
Outside of dangerous conditions, the dissenting opinion also addresses that a person suffering from grave disability due to a mental disorder is more likely to experience rapid improvement under treatment than a person with a developmental disability which by definition is “expected to continue, indefinitely”.
 
He also notes that other instances where habeas corpus is allowed, the defendant’s alternative legal remedies were not limited by time restrictions on the frequency allowed per year. Browne v. Superior Court, supra, 16 Cal.2d at p. 601, 107 P.2d 1. This he alleges is unique to LPS Conservatorship. The dissenting opinion also lays out colloquially that LPS Conservatees suffer from mental illness and because most lay people have considerable difficulty in understanding and exercising their rights to petition a court for habeas corpus relief, the simplest of procedures may present an insurmountable challenge to a person with severe mental illness. Doe v. Gallinot (9th Cir.1981) 657 F.2d 1017, 1023. It appears that in the dissenting opinion there may be a future push to make habeas corpus relief more informal as LPS Conservatees should be aligned with developmentally disabled adults who currently may initiate habeas corpus proceedings by making a simple request for release to a hospital staff member as a nonverbal indication of desire to leave is treated as a request for release and appropriate forms filled out.

• This may already be the case as citing to In re Azzarella, 207 Cal.App.3d 1240, 254 Cal. Rptr. 922 (Cal. Ct. App. 1989): “In the petition, the petitioner need do no more than allege that he is being detained. In the return and at the evidentiary hearing, the facility (County) must bear the burden of justifying the detention”.