Conservatorship of Roulet

590 P.2d 1, 23 Cal. 3d 219, 152 Cal. Rptr. 425, 1979 Cal. LEXIS 195

• Court: California Supreme Court
• Decided: February 6, 1979
• Docket: L.A. 30730
• Status: Published

Opinions

Opinion

BIRD, C. J.

In this case, the court must decide if proof beyond a reasonable doubt and a unanimous jury verdict are the proper standards to apply before a conservator can be appointed under the Lanterman-Petris-Short Act’s (LPS Act) grave disability provisions,¹ with the power to involuntarily commit a conservatee to a state mental institution for up to a year.

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. Respondent was given the power to confine appellant in a mental institution. Pursuant to respondent’s instructions, 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. According to the conservatorship reevaluation form filled out by physicians at Camarillo 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.”

Pursuant to subdivision (d) of section 5350, appellant demanded a jury trial on the issue of whether she was gravely disabled. At trial appellant requested that the jury be instructed that a conservator could be appointed for her only if the jury unanimously agreed, beyond a reasonable doubt, that appellant was gravely disabled as the result of mental disorder. The trial judge refused this instruction. Instead he instructed the jury they need only apply the preponderance of the evidence standard and that only 9 of the 12 jurors must agree in order to reach a verdict. Subsequently the jury found appellant to be a gravely disabled person.²

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.)

This appeal followed. 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 criminal trials, proof of guilt beyond a reasonable doubt is an obstacle the state places in its own way, in order to lessen the possibility of convicting an innocent person. This procedural constraint is eloquent testimony to the high stakes involved—a defendant’s freedom and reputation hinge on the verdict. In People v. Burnick (1975) 14 Cal.3d 306, 319-322 [121 Cal.Rptr. 488, 535 P.2d 352], this court explicitly recognized that civil commitment to a mental hospital, despite its civil label, threatens a person’s liberty and dignity on as massive a scale as that traditionally associated with criminal prosecutions. One has only to imagine the horror experienced by a competent person falsely committed as mentally disturbed in order to appreciate that freedom is openly on trial at a civil commitment proceeding. Therefore, the Burnick court ruled that proof beyond a reasonable doubt applies to mentally disordered sex offender proceedings.

The logic of Burnick is equally applicable here. The appointment of a conservator for appellant and her subsequent confinement in a mental hospital against her will deprived appellant of freedom in its most basic aspects and placed a lasting stigma on her reputation.

A. Deprivation of Liberty

The extent to which liberty is at stake can be ascertained by reviewing exactly what awaits an individual 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 the conservator 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 before a new court order must issue (§§ 5300-5306),³ 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. “The theoretical maximum period of detention is life as successive petitions may be filed . . . .” (In re Gary W. (1971) 5 Cal.3d 296, 300 [96 Cal.Rptr. 1, 486 P.2d 1201], italics added.)

This court has previously recognized that inmates of state mental hospitals face serious restrictions on their freedom. In In re Roger S. (1977) 19 Cal.3d 921, 929 [141 Cal.Rptr. 298, 569 P.2d 1286], the court noted that involuntary confinement is a direct form of physical restraint. And “[i]t is beyond dispute that a principal ingredient of personal liberty is ‘freedom from bodily restraint’ [citation]. . . .” (Id., at p. 927.) In People v. Burnick, supra, 14 Cal.3d 306, 323, a federal court of appeals opinion was cited to emphasize “ ‘the indisputable fact that civil commitment entails a “massive curtailment of liberty” in the constitutional sense. [Citation.] The destruction of an individual’s personal freedoms effected by civil commitment is scarcely less total than that effected by confinement in a penitentiaiy.’ ”

Again, in People v. Olivas (1976) 17 Cal.3d 236, 244-245 [131 Cal.Rptr. 55, 551 P.2d 375], 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 [citation], they are nevertheless incarcerated against their will, a most basic form of personal liberty deprivation.” (Italics added.)

Respondent fails to distinguish these previous decisions of this court. Instead, respondent takes false comfort in the fact that appellant’s commitment is only a “civil” confinement for remedial purposes. However, these are mere labels. Appellant’s stay in Camarillo State Hospital was not any less involuntaiy because the state called her incarceration by one name rather than another. As the United States Supreme Court has authoritatively written, “commitment is a deprivation of liberty. It is incarceration against one’s will, whether it is called ‘criminal’ or ‘civil.’ ” (In re Gault (1967) 387 U.S. 1, 50 [18 L.Ed.2d 527, 558, 87 S.Ct. 1428].) In a subsequent opinion, the Supreme Court reiterated that “civil labels and good intentions do not themselves obviate the need for criminal due process safeguards . . . .” (In re Winship (1970) 397 U.S. 358, 365-366 [25 L.Ed.2d 368, 376, 90 S.Ct. 1068].)

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.” (People v. Thomas (1977) 19 Cal.3d 630, 638 [139 Cal.Rptr. 594, 566 P.2d 228]; see also People v. Burnick, supra, 14 Cal.3d 306, 315-316; In re Gary W., supra, 5 Cal.3d 296, 307 [“the California Legislature has recognized that the interests involved in civil commitment proceedings are no less fundamental than those in criminal proceedings . . . .”].)

Nor can this court be swayed by the fact that appellant had her liberty taken away, allegedly for her own good. “ ‘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.’ ” (Breed v. Jones (1975) 421 U.S. 519, 530, fn. 12 [44 L.Ed.2d 346, 356, 95 S.Ct. 1779].) The law must still strive to make certain that only those truly unable to take care of themselves are being assigned conservators under the LPS Act and committed to mental hospitals against their will. As Justice Brandéis cautioned a half-century ago, “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 [72 L.Ed. 944, 957, 48 S.Ct. 564, 66 A.L.R. 376] (dis. opn. of Brandeis, J.).)

Therefore, appellant’s protection ultimately must rest on requiring the state to match its good intentions with proof beyond a reasonable doubt that appellant is in need of the state’s care. If a person is in fact incapable of providing for the daily necessities of life, this should not prove an insurmountable burden for the petitioner to cany.

The concurring and dissenting opinion today relies on the argument that confinement of an allegedly gravely disabled person is “. . . never in a jail, prison, or an institutional environment designed for the punishment of persons convicted of crimes.” (Conc. and dis. opn., post, at p. 238.)

However, 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 frequently placed at Atascadero and Patton State Hospitals. As of June 30, 1976, these institutions contained approximately 60 percent and 40 percent, respectively, of those persons convicted of crimes and determined to be mentally disordered sexual offenders (see § 6300 et seq.). Hence, conservatees do often find themselves confined in the same place as those convicted of crimes. 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 percent of the total population of that institution (1,045), and the 126 at Patton comprised more than 15 percent of the total population of that hospital (823). (Ibid.)

In Burnick, this court soberly recognized the resemblance in reality between Atascadero State Hospital and a conventional prison. “Let us not deceive ourselves as to the nature of that institution. (Cf. In re Gault, supra, 387 U.S. 1, 27 [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. Patients who occupy individual rooms are locked out of them during the 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. . . . [If] 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 306, 319-320.)

Therefore, the mere fact that appellant found herself confined in a hospital rather than a prison does not eliminate the need to protect her against false confinement.

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. For example, the conservator⁴ 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 1853.⁵ (See § 5357.)

Further an individual found to be “gravely disabled” may suffer numerous statutory disabilities, including possible loss of the following rights:⁶ 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 (e.g., custody of children (Civ. Code, § 232, subd. (a)(6)); marriage (Civ. Code, §§ 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))).

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. Respondent argues that the public attitude toward a gravely disabled person is one of “sympathy.” Unfortunately, this is not completely accurate. There is compelling evidence, which this court acknowledged in Burnick, that society still views the mentally ill with suspicion.

“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!⁷! 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. [11] 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 306, 321.)

Recently this court recognized the stigma which attaches to an individual who is found to be mentally ill. “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.” (In re Roger S., supra, 19 Cal.3d 921, 929, italics added.)

Moreover, grave disability proceedings carry special threats to reputation. A finding of grave disability is equivalent to a finding that a person is unable to feed, clothe or house himself because of a mental disorder (§ 5008, subd. (h)(1)). It is implausible that a person labelled by the state as so totally ill could go about, after his release, seeking employment, applying to schools, or meeting old acquaintances with his reputation fully intact.

A consistent line of cases decided by the United States Supreme Court and by this court require us to reject respondent’s reliance on “civil” labels and to hold that 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 630, 638.)

Ill

The civil nature of grave disability proceedings is likewise an insufficient excuse for allowing a person to lose his liberty and good name at the hands of less than a unanimous jury. Under the trial judge’s ruling, appellant theoretically could have been certified as gravely disabled and committed to a mental hospital, even though 3 of the 12 jurors found her perfectly sane. No defendant in a criminal case in California goes to prison after such a split jury vote. Yet, we have already seen that commitment equals imprisonment in its impact on a person’s freedom. The inescapable conclusion is that the right to a unanimous juiy verdict applies to conservatorship proceedings under the LPS Act. Any other result would mock the care our legal system has historically taken to guard against incarcerating the wrong person.

The need for unanimous jury verdicts is all the more apparent when one considers the uncertainties that still surround psychiatric diagnoses. This court has recently noted that “the divergence of expert views . . . render[s] the possibility of mistake significantly greater [in the diagnosis of mental illness] than in diagnosis of physical illness.” (In re Roger S., supra, 19 Cal.3d 921, 929.)⁸ Against this background of expert fallibility, the law must require, at a minimum, the jurors to agree among themselves that a diagnosis of grave disability was accurately made in a particular case.

In People v. Feagley (1975) 14 Cal.3d 338, 351 [121 Cal.Rptr. 509, 535 P.2d 373], this court noted that a defendant in a mentally disordered sex offender proceeding was entitled to a unanimous jury verdict for “the same reasons” that he was entitled to the standard of proof beyond a reasonable doubt. In People v. Thomas, supra, 19 Cal.3d 630, 644, this court again noted that a person threatened with civil commitment was entitled to a unanimous jury verdict for “identical reasons” to those which entitled him to have his alleged narcotics addiction proved beyond a reasonable doubt.

Thus, this court has twice explicitly recognized that jury unanimity and the standard of proof beyond a reasonable doubt are slices of the same due process pie. It would be curious indeed to grant appellant one without the other. Therefore, this court concludes that appellant is entitled to a unanimous jury verdict for reasons identical to those which entitle her to the standard of proof beyond a reasonable doubt.

Moreover, any interpretation of section 5350, subdivision (d) as not requiring a unanimous jury verdict would render that section unconstitutional as a violation of the equal protection clauses of the California and federal Constitutions.⁹ Section 5303 explicitly extends the protection of unanimous jury verdicts to commitment proceedings for imminently dangerous persons. Were gravely disabled persons facing possible commitment not entitled to the same protection, they would have just cause to complain.

This court has previously characterized the right to a unanimous jury verdict as “fundamental.” (People v. Feagley, supra, 14 Cal.3d 338, 356.)¹⁰ Accordingly, the state must show the “compelling interest” which would justify distinguishing between the rights of imminently dangerous and gravely disabled persons. (In re Gary W., supra, 5 Cal.3d 296, 306.)

Respondent fails to demonstrate any such compelling interest. At most, respondent argues that there is a rational basis for distinguishing between the two classes of mentally ill persons. The alleged basis is that in grave disability proceedings, the state’s interest is solely one of benevolence toward the individual. In imminently dangerous proceedings, on the other hand, the government has the additional adversary interest of protecting others from that individual. Respondent concludes that there is less danger of governmental abuse in grave disability proceedings given the benevolent state motives. Therefore, there is supposedly less need for heightened due process protection.

This argument is spurious. History is haunted by the accusing cries of those locked away “for their own good.” It would be small solace to a person wrongly judged mentally incompetent that his road to commitment was paved with good intentions.

Moreover, this court has previously questioned whether the reality of commitment conforms to its benign purpose. (People v. Burnick, supra, 14 Cal.3d 306, 319-320.) In many cases the “promise of treatment has served only to bring an illusion of benevolence to what is essentially a warehousing operation for social misfits.” (Cross v. Harris (D.C.Cir. 1969) 418 F.2d 1095, 1107.) For -these reasons, respondent’s rational basis argument must be rejected.

Common sense alone dictates that, if anything, grave disability proceedings should be hemmed in by more procedural safeguards than those surrounding imminently dangerous proceedings. This is because the LPS Act makes it easier to commit gravely disabled persons than imminently dangerous persons. 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)(1).) However, a much more exact showing must be made in imminently dangerous proceedings, which require the demonstration of a threatened, attempted, or actually inflicted physical harm on another person, as well as an imminent threat of substantial physical harm to others by reason of a mental disorder. (§ 5304.)¹¹

The easier the path to commitment, the more likely becomes the possibility of mistake. As the possibility of reaching a wrong decision increases, the number of juror votes required to commit a person certainly should not decrease. To allow a person to be certified as gravely disabled by 9 of 12 jurors, while requiring a jury to agree unanimously before a person can be found imminently dangerous, would be to stand the doctrine of equal protection on its head.

In People v. Feagley, supra, 14 Cal.3d 338, 358, this court reached a parallel conclusion regarding the unanimous juiy verdict rights of mentally disordered sex offenders. The court noted that it was easier to commit mentally disordered sex offenders than those accused of being dangerous to others. The court concluded, as we do today, that surrounding the easier path to commitment with less procedural safeguards was nonsensical. “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 338, 358.)

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 correctness of the eventual verdict¹² an examination of the extent to which LPS Act conservatorship procedures are subject to factual distortions is helpful in showing why a high standard of proof is necessary to offset the effect of those distortions.

A proposed conservatee’s only opportunity to prove his mental competency 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 be confined prior to the trial—either pursuant to a temporary conservatorship (§ 5353) or the conservatorship which is to be 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 to help justify predictions that the individual is and will continue to be gravely disabled. However, an individual’s frantic or desperate reactions to involuntary commitment in a mental hospital do not, in themselves, prove that he is mentally ill. (See, e.g., Kesey, One Flew Over the Cuckoo’s Nest (1962).)¹³ “Mental illness” is generally acknowledged to be a vague and uncertain concept. Categories of mental diseases are notoriously unclear, often overlap, and frequently change.¹⁴ The experts themselves often disagree on what is an appropriate diagnosis. (See p. 230, ante.) 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.¹⁵ A recent empirical study of practice under the LPS Act confirms this observation.¹⁶

The combined effect of these factors—the difficulty of defining mental illness, the factfinder’s deference to psychiatric testimony, and the paternalistic attitude of some appointed counsel¹⁷—lends strong support to the conclusion that proof beyond a reasonable doubt and jury unanimity are constitutionally mandated standards necessary to assure that LPS Act conservatorships are accurately established.

V

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. This court’s decisions in Burnick, Feagley and Thomas have already held as much in regard to other civil commitment proceedings. There is no logical reason to diverge from that path in this case. To turn back toward the repudiated criterion of the civil-criminal label serves only to exalt form over constitutional substance. Logic and law, as well as regard for the value of liberty, compel this court to follow those decisions today.¹⁸

The order appealed from is reversed.

Tobriner, J., Mosk, J., and Newman, J., concurred.

1 See Welfare and Institutions Code section 5350 et seq. Unless otherwise specified, all statutory references herein are to the Welfare and Institutions Code.

2 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.

3 “The definite impression of many data gatherers is that the conservatorship device is used to avoid the necessity of obtaining consent to treatment from recalcitrant patients. One can only speculate on the number of people who are coerced into accepting ‘voluntary’ treatment by a threat to initiate the conservatorship process if the individual is unwilling to accept treatment.” (Morris, Conservatorship for the “Gravely Disabled”: California’s Nondeclaration of Nonindependence (1978) 15 San Diego L.Rev. 225 (hereafter cited as Conservatorship for Gravely Disabled).)

4 “A report on LPS conservatorships in Santa Clara County revealed that a majority of conservatees had no personal contact with their conservators, and in fact they did not even know their names. [Fn. omitted.]” (Morris, Conservatorship for Gravely Disabled, supra, 15 San Diego L.Rev. 227.)

5 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 conservator-ship 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 conservator-ship estate.” (Prob. Code, § 1853.)

6 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.

7 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 Psych. 159.)

8 See also People v. Burnick, supra, 14 Cal.3d 306, 325-326; O’Connor v. Donaldson (1975) 422 U.S. 563, 579 [45 L.Ed.2d 396, 409, 95 S.Ct. 2486] (conc. opn. of Burger, C. J.); Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom (1974) 62 Cal. L.Rev. 693, 699-708.

9 It is a cornerstone of constitutional adjudication that courts interpret statutes, wherever possible, so as to preserve their constitutionality. (See, e.g., Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 305 [138 Cal.Rptr. 53, 562 P.2d 1302].)

10 The concurring and dissenting opinion seeks to distinguish Feagley on the grounds that “[t]he defendant there had been charged with and convicted of a criminal offense as a precondition to proceedings to determine his status as a mentally disordered sex offender." (Cone, and dis. opn., post, p. 241, italics added.) However, the Feagley court explicitly disclaimed reliance on the fact that the civil commitment of a mentally disordered sex offender is triggered by a criminal conviction. “[Tjhe criminal offense of which the defendant was convicted need have no relevance at all to the issues subsequently adjudicated in the mentally disordered sex offender proceedings.” (People v. Feagley, supra, 14 Cal.3d 338, 356.) Feagley specifically concluded that a person alleged to be a mentally disordered sex offender has a fundamental right to a unanimous jury verdict in civil commitment proceedings. (Ibid)

One would have thought that the concurring and dissenting opinion’s misreading of Feagley’s significance would have been laid to rest by these words of explanation by Justice Mosk, Feagley’s author: “The primary ground of invalidity identified in Feagley was a violation of the provisions of the California Constitution guaranteeing due process (art. I, § 7, subd. (a)) and a unanimous jury verdict (art. I, § 16). We recognized that neither applied by its terms to ‘civil actions, but we recalled our statement in In re Gary W. (1971) 5 Cal.3d 296, 307 [96 Cal.Rptr. 1, 486 P.2d 1201], that ‘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.’ We then explained that a mentally disordered sex offender proceeding has ‘all the trappings of a criminal prosecution, together with the worst consequences of the latter’ (14 Cal.3d at p. 350) . . . .” (People v. Thomas (1977) 19 Cal.3d 630, 642 [139 Cal.Rptr. 594, 566 P.2d 228], italics added.)

This court today does not “assum[e] the very thing at issue.” (Cone, and dis. opn., post, p. 241.) Instead, having undertaken a close analysis of the severe consequences for an individual’s liberty of commitment to a mental hospital as a gravely disabled person, this court today follows Feagley and Thomas in characterizing as fundamental the right to a unanimous jury verdict in civil commitment proceedings under the LPS Act.

11 It is also 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 338, 358, fn. 14.) 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.)

12 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.

13 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 basic 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.)

14 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 Ed.) 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.Psych. 65.)

15 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.

16 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 “[ijnformal 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.)

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 322 [249 N.W.2d 573, 577].)

17 One recent law review article outlined the present system: “The lawyers did not consider themselves advocates in an adversary process in which conservatorship was to be avoided. For example, of the sixty-three court hearings observed during the study period, thirty-six lasted three minutes or less, and only nine hearings lasted nine minutes or .longer. Ironically, the conservatorship hearings were of a shorter average duration than the 4.7 minute average of pre-LPS commitment hearings. The criticism leveled at the commitment hearings is equally applicable to the LPS conservatorship hearings: ‘One can only wonder what the court experience meant to more than 13,000 Californians committed last year. If the purposes of the system are so confusing to the judges, doctors and lawyers who practice in it, the citizens who come before the court for three or four minutes must be completely bewildered. Many must believe that they are being incarcerated for terrible deeds.’-[Fns. omitted.]” (Morris, Conservatorship for Gravely Disabled, supra, 15 San Diego L.Rev. 232.)

18 The holding irf this case shall be applied only to cases not yet final as of the date on which this decision becomes final. In light of Welfare and Institutions Code sections 5361 and 5364, this court is satisfied that final judgments establishing conservatorships over gravely disabled persons need not be disturbed, since the new rules announced in this case will, at any rate, shortly be available to all conservatees.