LPS matters presumed non public- Sorenson v Superior Court
Sorenson v. Superior Court, 219 Cal. App. 4th 409 (2013)
Issues over whether LPS Conservatorship proceedings are private or a matter of public interest and therefore should be open to the public. The superior court erred in allowing the records of the conservatee’s be made public and transcripts provided to the People and media. The conservatee asked for a writ of mandate and writ to prohibition on the grounds that his right to privacy was violated, the LPS act intended for the proceedings to be private closed matters, and that releasing his court records would violate his right to psychotherapist client confidentiality. The appellate court found that the trial court had abused its discretion and granted the petitioner’s prayer for relief.
In the matter of the conservatorship of Sorenson. At the time proposed conservatee was being prosecuted for murder with the Monterey Superior Court case No. SS112361 by People. He was also pending LPS conservatorship proceedings. Proposed conservatee appeals on the ground that his rights were violated when the LPS trial transcripts were published and distributed to news and People. Proposed conservatee claims that such records are presumptively private in accordance to Welf and Inst Code § 5118 and said actions violated his privacy rights pursuant to § 5328 and the psychotherapist patient privilege. The instant court contends that trial records are public matter as they would fall under “ordinary civil trials and proceedings”. It also claims a statutory right pursuant to Code of Civil Procedure § 124 that mandates in the absence of an express statutory exception, “the sittings of every court shall be public”. The superior court contends that Welf and Insti Code § 5118 does not qualify as a statutory exception. The appellate court disagrees stating because LPS matters fall under special proceedings subject to public stigma and loss of statutory rights, they are inherently private.
Conservatee was facing pending matters regarding his trial for murder. The People and two news outlets made a written request for production of conservatee’s case files. The reporters believed that there was information in the file that was of public interest and right to know. The court at the time denied the request citing that the files were confidential.
People filed a pleading that requested reconsideration of the order. People cited:
“allow [them] to inspect the records of Mr. Sorenson's [LPS conservatorship] trials, and to obtain the trial transcripts at [their] cost.”…. “allow [them] to inspect the records of Mr. Sorenson's [LPS conservatorship] trials, and to obtain the trial transcripts at [their] cost.”
On March 19, 2012, a different superior court set a hearing on People and the media’s motions, that identified five legal issues for consideration. According to the new presiding judge, the previous judge had “specially assigned these matters ... for review of issues pertaining to requests to access any information contained in the above-referenced [LPS] cases and for reconsideration of any of his prior rulings.”
The news indicated in its brief that it sought an order to (1) unsealing the transcripts of the two LPS jury trials, (2) unsealing all of the records of eight mental health proceedings involving conservatee, and (3) “correcting the systematic and automatic sealing of all records relating to LPS Act proceedings.”
Based on these the judge unsealed the records and released them to the media. In its ruling, the court held that LPS hearings are nonpublic unless either party requests a public hearing. In the matter of Sorenson, the trial proceeding was heard as a public matter and as a result, the court deemed that their failure to raise an objection was to “deemed to have `requested' that the hearings be public” under Welf and Inst Code § 5118. The court did however, deny the request for access to all files and records as it found that the information was confidential and not discoverable pursuant to § 5328. The court stayed the proceedings for 15 days.
Conservatee files a formal timely appeal citing his dissensions. The conservatee filed asking for a writ of mandamus and writ of prohibition. The conservatee also asked for a temporary stay. The appellate court granted a temporary stay of the proceedings and heard the matter. The court allowed the opposing party to enter a preliminary opposition to conservatee’s appeal. The court wrote an order for the respondent party to show cause as to why a writ of mandate is not appropriate.
Conservatee wrote in a single latter asking that the petition be dismissed. At prima facie, the court found the letter to be:
“The language of the letter was uninformative, and vaguely referenced exhibits attached to the People's prior motion to dismiss,8 which dismissal motion this court”
However, on closer inspection, the basis for the dismissal was that conservatee had changed his plea to a NGRI and had signed a waiver of privacy rights to the LPS transcripts. Conservatee understood that this wavier would bar the recipients of his records from sharing with any other persons and withdrew his earlier petition. However, the appellate court found merit with conservatee’s contentions and denied his petition on the grounds that his contentions were of public concern.
Public Interest Exception
A reviewing court may decline dismissal of moot case where the appeal raises issues of continuing public importance. A court, despite the parties' settlement of the case after briefing and argument, may elect to decide the merits of the controversy involving a matter of continuing public interest
The court of appeals addresses conservatee’s contentions over whether LPS matters should be public or private. The conservatee contends that LPS matters should be sealed and private as they fall under the category of “unique” cases that are "especially designed to help encourage mental health treatment, protect the public, safeguard the rights of mental health patients, and encourage persons with mental health problems to seek treatment on a voluntary basis. [Citations.]” Conservatee asserts that Welf and Inst Code § 5118 stipulates a presumption that LPS proceedings are private unless the exceptional statute that mandates that any party to them may demand that a hearing be public applies. However, in his case he argues that the instant court erred when relied inadmissible hearsay in ordering that that the parties lack of objection was sufficient to find that the parties “deemed to have `requested' that the hearings be public” under Welf and Inst Code § 5118.
Respondent returns that the trial court's reasoning may have been incorrect. However, the the trial court acted correctly in applying the first Amendment LPS matters (in re. NBC Subsidiary, supra, 20 Cal.4th at p. 1212) and statute (Code Civ. Pro § 124). The respondent asserts that there was no current language in the LPS act that establishes a presumption that LPS proceedings are private. They contend that if the LPS act intended to have LPS matters be private, then Legislature would have written it in. They stipulate that the language of Welf and Inst Code § 5350 et seq does not specifically address confidentially. They stipulate that the trial court was correct in its application of the law.
The appellate court addressed LPS proceedings:
Because an involuntary civil commitment constitutes a deprivation of liberty and places a stigma upon the conservatee's reputation, due process under the California Constitution requires that a finding of grave disability in an LPS jury trial must be unanimous and based upon proof beyond a reasonable doubt. (Conservatorship of Roulet (1979) 23 Cal.3d 219, 235 [152 Cal.Rptr. 425, 590 P.2d 1]; see Conservatorship of Ben C. (2007) 40 Cal.4th 529, 541 [53 Cal.Rptr.3d 856, 150 P.3d 738] ["[b]ecause of the important liberty interests at stake, correspondingly powerful safeguards protect against erroneous findings"].)
Because of these reasons, the court finds that it must apply the proper safeguards for the conservatee’s rights.
When the issue concerns first amendment rights, the appellate court must conduct a de novo independent review of the record and the facts. The court also investigates whether § 5118 falls under the exception to Calif Civil Pro § 124. Finally the appellate court will review and see if the assumption that failure to raise an objection constituted as waiver to a nonpublic trial. The appellate court reviews each seriatim.
The court examines the first contention of whether first amendment rights apply to LPS matters.
The respondant People and other media sources cite in re. Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555 [65 L.Ed.2d 973, 100 S.Ct. 2814] and in re. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) which cite the benefit of having public trials:
“observed [that] open trials enhance the performance and accuracy of trial proceedings, educate the public, and serve a `therapeutic' value to the community [citation] — and this, considered together with historical tradition, leads to the conclusion that `the right to attend criminal trials is implicit in the guarantees of the First Amendment.”and that [a]bsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.”
“Indeed, many of the advantages of public criminal trials are equally applicable in the civil trial context.... Thus, in some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases.”
“[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”
Based on these two court’s opinions this appellate court found that LPS matters have an overriding interest of preserving a proposed conservatee’s rights intact as much as possible. This overriding interest precludes LPS matters from falling under the civil procedure exception. The court cites in re. People v. Yartz (2005) which found that in a SVP matter,: “plea and any admission required by the court during any inquiry it makes as to the voluntariness of and factual basis for the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.”
The courts have since 1872, divided judicial remedies into two kinds: actions and special proceedings. (see Code Civ. Proc., § 21.) An action is a proceeding where one party prosecutes another in the hopes of obtaining a declaration, enforcement or protection of a right, the remedy or prevention of a legal wrong, or the punishment of an offense. The other kind, a “special proceeding” is any remedy that is not an action. The court found that SVP matters fall under special proceedings.
Drawing from this the court applies the same to LPS matters. Even though the two proceedings are different, the treatment outcome is the same in the fact that it is not punitive. Because SVP matters are not punitive nor are LPS, the appellate court finds that it correctly compares the two.
LPS commitment `"may not reasonably be deemed punishment either in its design or purpose."'"]), and (2) both are "`special proceeding[s] of a civil nature... [and are] civil commitment proceeding[s] commenced by petition independently of a pending action.' [Citation.]" (Yartz, at pp. 536-537; see Conservatorship of Martha P., supra, 117 Cal.App.4th at p. 867.
In regards to the contention that failure to enter an objection suggests right of access, the appellate court found that the trial court erred. The NBC Subsidiary court addressed the issue of whether public access to an "ordinary" civil trial was appropriate, but did not extend its scope into whether that same privilege applied to special proceedings.
This appellate court found that there had been no preceding historic case that had addressed the issue of whether LPS matters were public or private. The only available legislature that addressed public hearings was § 5118, that stipulated that any party to the proceeding may demand that the hearing be public. This insinuates that LPS proceedings were generally nonpublic and that it was up to the party members to request that it be open to the public.
Also Welf and Inst Code § 5328 mandates that “[a]ll information and records obtained in the course of providing services under ... Division 5 (commencing with Section 5000) ... to either voluntary or involuntary recipients of services shall be confidential.” See also that “And a court-ordered evaluation under the LPS Act is to "be carried out with the utmost consideration for the privacy and dignity of the [proposed LPS conservatee].” (see Welf and Inst Code § 5200.)
At the time California conservatorship practice mentions the issue of privacy:
“Confidentiality is a significant issue in all LPS conservatorship proceedings. In at least one county, the entire file is confidential, the court calendar is not available to the public, family members can receive notice of the hearing only if the patient consents and can attend the hearing only at the patient's request. In some counties, the conservatorship investigator's report and doctor's declarations are confidential, but the petition and calendar are available to the public, although the court may close the hearing. In other counties, the report and declaration are confidential, and the matter is heard in open court unless it is a contested hearing, which will be closed to the general public. In still other counties, even contested hearings are open to the public, unless good cause is shown to close them on request." (in re. Cont.Ed.Bar 2012) Conservatorships for the Gravely Disabled Under the LPS Act, § 23.47, pp. 1340-1341 (rev. 5/13).)
Conservatee argues that this limited amount of evidence demonstrates that LPS conservatorship proceedings are not presumptively open and that the LPS Act intends to safeguard the privacy rights of the proposed conservatee. The conservatee asserts that these statutes support his assertion that there is not a tradition of openness of LPS court proceedings, to the extent they (1) may be construed to require that hearings be nonpublic, absent a "demand that the hearing be public" (§ 5118); (2) require that the privacy rights of proposed conservatees be given the utmost respect; and (3) preserve the confidentiality of medical and other records relating to proposed conservatees' care and treatment.
The appellate court also asserts that the public usefulness of accessing such proceedings is not sustained. The appellate court assesses each by a several prong test.
(1) the "enhancement of the performance and accuracy of trial proceedings; (2) education of the public, (3)[performing a `therapeutic' value to the community, (4) “providing a means ... by which citizens scrutinize and `check' the use and possible abuse of judicial power, (5) serving to enhance the truth-finding function of the proceeding
The first and last prong do not apply to LPS conservatorship matters as they are not criminal proceedings. The court finds that public scrutiny will not enhance the truthfulness of the proceeding. I personally disagree as mistruths can be found in any proceeding. The education of the public over LPS matters and mental health is a valid point, but the court finds that there is usually no limit when applying this prong theoretically and the conservatee’s privacy rights are more important than public education. The factor of whether the community benefits from such lacks foundational support and the court dismisses it as LPS matters are not relevant because societal reactions such as outrage are far less common than in criminal. Again I disagree because many people have expressed outrage and concern regarding arbitrary conservatorships and civil commitments. In regards to whether LPS matters need to be scrutinized by the public to ensure that justice is properly served, the court finds that like community benefits, it can be applied to any kind of proceeding and the conservatee’s rights outweigh any benefit.
In total, the appellate court found that the public utility of having open LPS conservatorship proceedings is far beneficial than the utility of having criminal proceedings open to the public. The court finds that based on the lack of public benefit and historic record, there is no public constitutional right of public access to LPS proceedings, including jury trials.
Finally, in regard to whether LPS proceedings are to be held open, the appellate court examines Civil procedure § 124 against Welf and Inst Code § 5118.
The court first examines § 5118. The code states that: “Notwithstanding any other provisions of this section, any party to the proceeding may demand that the hearing be public, and be held in a place suitable for attendance by the public.” The term "the hearing" in the previously quoted sentence refers to any hearing under the LPS Act”.
As used in this section, a “hearing under this part” includes conservatorship and other hearings held pursuant to § 5350).
There is some argument that the word “hearing” does not enumerate LPS jury trials and therefore the two are separate and should be treated as such. The People argue that hearings are different from trials as trials are far more formal. They cite that jury trials are never mentioned in the law and therefore do not apply. The appellate court reviewed the assertions and found that based on previous case law, there is nothing on the face of section 5118 itself that suggests that the term "the hearing" includes jury trials. We are mindful that our task in “seek[ing] the meaning of a statute is not simply to look up dictionary definitions and then stitch together the results. Rather, it is to discern the sense of the statute, and therefore its words, in the legal and broader culture.”
The court reads that the law should be read in the context of the case is appeared and apply it to the case presented and the broader sense of the meaning.
Since the law does not directly address whether LPS jury trials are nonpublic, the appellate court turns to other relevant sections of the LPS Act.
The court found in two other cases where the law does not distinguish between a hearing and a jury trial:
There is no functional distinction between the two proceedings; the terms "hearing" and "trial" in section 5303 both mean a trial.
there shall be a court hearing or a jury trial, whichever is requested, on the issue of whether the conservatee is still gravely disabled and in need of a conservatorship." (Italics added.) This language in section 5362, subdivision (a) initially equates the term "court hearing" with "jury trial," and later equates a "court hearing" to a bench trial.
Drawing from these two examples, the court finds that the LPS act intended to confer the same properties to hearings and jury trials when it comes to privacy rights and presumed nonpublic nature.
Having established that LPS hearings and jury trials are the same, the issue of confidentially must be established. The appellate court found that the LPS act mandates in § 5328 requires that “[a]ll information and records obtained in the course of providing services under the LPS Act (among other statutes) be kept confidential.” The conservatee contends that this applys to court transcripts. The People contend that court transcripts are separate because they are not “information and records obtained in the course of providing services.” The appellate court found that the law when read in a greater context extends that protection to jury trial transcripts and records. This protection falls within the broader patient psychotherapist confidentiality laws. Following this, the appellate court applies the psychotherapist privilege constructs. Because psychoanalysis and psychotherapy are dependent upon the fullest revelation of the most intimate and embarrassing details of the patient's life, a patient ... unless assured that such information can and will be held in utmost confidence, will be reluctant to make the full disclosure upon which diagnosis and treatment ... depends”. Because of this sensitive nature, the information conveyed must be safeguarded by the LPS act. The psychotherapist client clause mandates that sensitive patient information be protected and disclosure be limited to certain officials and courts.
“[t]o the courts, as necessary to the administration of justice" (§ 5328, subd. (f)), the statute is to be "strictly construed... [in] permitting release of information only under limited circumstances to limited government agencies”
The court finds that this carries through to LPS trial transcripts. The appellate court notes that the LPS act created this extra security as mental health is of great importance and protecting that information allows patients who otherwise would be too shy to seek treatment to be treated. The court finds that if releasing the trial transcripts would violate the confidentiality even if the transcripts are not the direct records of the patient.
Following all of the reasons proffered above, the appellate court found that despite any explicit mention in the law, LPS trials are presumptively nonpublic. The court finds that a finding of grave disability relies on testimony from expert witnesses and other professionals who are bound by the confidentially conferred by § 5328. Because the public benefit does not outweigh the importance of confidentiality, the appellate court found that the trial court had misapplied the law and issued a writ of mandate commanding the instant superior court to vacate its order and enter a new order denying the respondents access to the court transcripts.
***** A side note is that there was confusion regarding whose orders superceded whose. The superior court who initially heard the matter transferred the matter to a different judicial officer. The second judicial officer entered a different judgement than the first. Because of this, the court did not know which order superseded which one and whether the change in officer was lawful.
In regards to the media, the first media, the Herald’s motion cited its three reasons. The motion also contained a request to seek an order that reversed the automatic sealing of LPS records. The other news outlet, The Californian only sought to inspect two of the files as they might have information useful to the public.
Because The Herald's motion involved a request for access to court files and an order unsealing all LPS files made by an entity not involved in any prior proceedings that prompted the issuance of Presiding Judge Roberts's prior orders, those orders did not act as an impediment to Judge Hood's subsequent action on The Herald's motion.
The court addresses the issue of forum shopping and finds that with the reassignment of one judge the orders from a previous one can be nullified. This does limit the power of the first judge should that occur.
With respect to the court's internal reassignment of the motions to Judge Hood, we are mindful of the limitations involved in one judge, by subsequent order, nullifying a prior ruling by another judge of the same superior court. (See In re Alberto (2002) 102 Cal.App.4th 421, 426-428 [125 Cal.Rptr.2d 526].)
The court provides its reasoning behind limiting the power of the former judge under those circumstances — (1) discouraging "`forum shopping'" by the parties, and (2) preventing the later-ruling judge from becoming "a one-judge appellate court" (id. at p. 427) — do not pertain to this case.
The court ruled that because the Presiding judge’s reassignment of these matters to the subsequent judge, was authorized by statute and rules to “distribute the business of the court among the judges, and prescribe the order of business.”
Procedural Posture
Petitioner proposed conservatee sought a writ of mandate, challenging an order of respondent Superior Court of Monterey County (California) that permitted real parties in interest, the People and two newspapers, access to copies of the reporter's transcripts of the jury trials conducted in two proceedings under the Lanterman-Petris-Short Act (LPS Act), Welf. & Inst. Code, § 5000 et seq., involving petitioner.
Overview
The court held that the trial court erred in granting real parties access to the transcripts, because involuntary conservatorship proceedings under the LPS Act were not ordinary civil trials and proceedings that were presumptively public. Rather, involuntary conservatorship proceedings under the LPS Act were special proceedings. However, they were not special proceedings for which there was a qualified First Amendment right of public access. There was not such a tradition of openness or utility associated with having the proceedings public to support a finding of a constitutional right of access. Furthermore, Welf. & Inst. Code, § 5118, made LPS jury trials presumptively nonpublic, thereby constituting a statutory exception to Code Civ. Proc., § 124's general requirement that such sittings be public. The court concluded that the trial court erred in finding that, notwithstanding that LPS jury trials were presumptively nonpublic, the parties by their conduct were deemed to have "requested" under Welf. & Inst. Code, § 5118, that the hearings be public.
Outcome
The court granted the petition for writ of mandate.
Sorenson v. Superior Court, 219 Cal. App. 4th 409 (2013)
Issues over whether LPS Conservatorship proceedings are private or a matter of public interest and therefore should be open to the public. The superior court erred in allowing the records of the conservatee’s be made public and transcripts provided to the People and media. The conservatee asked for a writ of mandate and writ to prohibition on the grounds that his right to privacy was violated, the LPS act intended for the proceedings to be private closed matters, and that releasing his court records would violate his right to psychotherapist client confidentiality. The appellate court found that the trial court had abused its discretion and granted the petitioner’s prayer for relief.
In the matter of the conservatorship of Sorenson. At the time proposed conservatee was being prosecuted for murder with the Monterey Superior Court case No. SS112361 by People. He was also pending LPS conservatorship proceedings. Proposed conservatee appeals on the ground that his rights were violated when the LPS trial transcripts were published and distributed to news and People. Proposed conservatee claims that such records are presumptively private in accordance to Welf and Inst Code § 5118 and said actions violated his privacy rights pursuant to § 5328 and the psychotherapist patient privilege. The instant court contends that trial records are public matter as they would fall under “ordinary civil trials and proceedings”. It also claims a statutory right pursuant to Code of Civil Procedure § 124 that mandates in the absence of an express statutory exception, “the sittings of every court shall be public”. The superior court contends that Welf and Insti Code § 5118 does not qualify as a statutory exception. The appellate court disagrees stating because LPS matters fall under special proceedings subject to public stigma and loss of statutory rights, they are inherently private.
Conservatee was facing pending matters regarding his trial for murder. The People and two news outlets made a written request for production of conservatee’s case files. The reporters believed that there was information in the file that was of public interest and right to know. The court at the time denied the request citing that the files were confidential.
People filed a pleading that requested reconsideration of the order. People cited:
“allow [them] to inspect the records of Mr. Sorenson's [LPS conservatorship] trials, and to obtain the trial transcripts at [their] cost.”…. “allow [them] to inspect the records of Mr. Sorenson's [LPS conservatorship] trials, and to obtain the trial transcripts at [their] cost.”
On March 19, 2012, a different superior court set a hearing on People and the media’s motions, that identified five legal issues for consideration. According to the new presiding judge, the previous judge had “specially assigned these matters ... for review of issues pertaining to requests to access any information contained in the above-referenced [LPS] cases and for reconsideration of any of his prior rulings.”
The news indicated in its brief that it sought an order to (1) unsealing the transcripts of the two LPS jury trials, (2) unsealing all of the records of eight mental health proceedings involving conservatee, and (3) “correcting the systematic and automatic sealing of all records relating to LPS Act proceedings.”
Based on these the judge unsealed the records and released them to the media. In its ruling, the court held that LPS hearings are nonpublic unless either party requests a public hearing. In the matter of Sorenson, the trial proceeding was heard as a public matter and as a result, the court deemed that their failure to raise an objection was to “deemed to have `requested' that the hearings be public” under Welf and Inst Code § 5118. The court did however, deny the request for access to all files and records as it found that the information was confidential and not discoverable pursuant to § 5328. The court stayed the proceedings for 15 days.
Conservatee files a formal timely appeal citing his dissensions. The conservatee filed asking for a writ of mandamus and writ of prohibition. The conservatee also asked for a temporary stay. The appellate court granted a temporary stay of the proceedings and heard the matter. The court allowed the opposing party to enter a preliminary opposition to conservatee’s appeal. The court wrote an order for the respondent party to show cause as to why a writ of mandate is not appropriate.
Conservatee wrote in a single latter asking that the petition be dismissed. At prima facie, the court found the letter to be:
“The language of the letter was uninformative, and vaguely referenced exhibits attached to the People's prior motion to dismiss,8 which dismissal motion this court”
However, on closer inspection, the basis for the dismissal was that conservatee had changed his plea to a NGRI and had signed a waiver of privacy rights to the LPS transcripts. Conservatee understood that this wavier would bar the recipients of his records from sharing with any other persons and withdrew his earlier petition. However, the appellate court found merit with conservatee’s contentions and denied his petition on the grounds that his contentions were of public concern.
Public Interest Exception
A reviewing court may decline dismissal of moot case where the appeal raises issues of continuing public importance. A court, despite the parties' settlement of the case after briefing and argument, may elect to decide the merits of the controversy involving a matter of continuing public interest
The court of appeals addresses conservatee’s contentions over whether LPS matters should be public or private. The conservatee contends that LPS matters should be sealed and private as they fall under the category of “unique” cases that are "especially designed to help encourage mental health treatment, protect the public, safeguard the rights of mental health patients, and encourage persons with mental health problems to seek treatment on a voluntary basis. [Citations.]” Conservatee asserts that Welf and Inst Code § 5118 stipulates a presumption that LPS proceedings are private unless the exceptional statute that mandates that any party to them may demand that a hearing be public applies. However, in his case he argues that the instant court erred when relied inadmissible hearsay in ordering that that the parties lack of objection was sufficient to find that the parties “deemed to have `requested' that the hearings be public” under Welf and Inst Code § 5118.
Respondent returns that the trial court's reasoning may have been incorrect. However, the the trial court acted correctly in applying the first Amendment LPS matters (in re. NBC Subsidiary, supra, 20 Cal.4th at p. 1212) and statute (Code Civ. Pro § 124). The respondent asserts that there was no current language in the LPS act that establishes a presumption that LPS proceedings are private. They contend that if the LPS act intended to have LPS matters be private, then Legislature would have written it in. They stipulate that the language of Welf and Inst Code § 5350 et seq does not specifically address confidentially. They stipulate that the trial court was correct in its application of the law.
The appellate court addressed LPS proceedings:
Because an involuntary civil commitment constitutes a deprivation of liberty and places a stigma upon the conservatee's reputation, due process under the California Constitution requires that a finding of grave disability in an LPS jury trial must be unanimous and based upon proof beyond a reasonable doubt. (Conservatorship of Roulet (1979) 23 Cal.3d 219, 235 [152 Cal.Rptr. 425, 590 P.2d 1]; see Conservatorship of Ben C. (2007) 40 Cal.4th 529, 541 [53 Cal.Rptr.3d 856, 150 P.3d 738] ["[b]ecause of the important liberty interests at stake, correspondingly powerful safeguards protect against erroneous findings"].)
Because of these reasons, the court finds that it must apply the proper safeguards for the conservatee’s rights.
When the issue concerns first amendment rights, the appellate court must conduct a de novo independent review of the record and the facts. The court also investigates whether § 5118 falls under the exception to Calif Civil Pro § 124. Finally the appellate court will review and see if the assumption that failure to raise an objection constituted as waiver to a nonpublic trial. The appellate court reviews each seriatim.
The court examines the first contention of whether first amendment rights apply to LPS matters.
The respondant People and other media sources cite in re. Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555 [65 L.Ed.2d 973, 100 S.Ct. 2814] and in re. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) which cite the benefit of having public trials:
“observed [that] open trials enhance the performance and accuracy of trial proceedings, educate the public, and serve a `therapeutic' value to the community [citation] — and this, considered together with historical tradition, leads to the conclusion that `the right to attend criminal trials is implicit in the guarantees of the First Amendment.”and that [a]bsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.”
“Indeed, many of the advantages of public criminal trials are equally applicable in the civil trial context.... Thus, in some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases.”
“[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”
Based on these two court’s opinions this appellate court found that LPS matters have an overriding interest of preserving a proposed conservatee’s rights intact as much as possible. This overriding interest precludes LPS matters from falling under the civil procedure exception. The court cites in re. People v. Yartz (2005) which found that in a SVP matter,: “plea and any admission required by the court during any inquiry it makes as to the voluntariness of and factual basis for the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.”
The courts have since 1872, divided judicial remedies into two kinds: actions and special proceedings. (see Code Civ. Proc., § 21.) An action is a proceeding where one party prosecutes another in the hopes of obtaining a declaration, enforcement or protection of a right, the remedy or prevention of a legal wrong, or the punishment of an offense. The other kind, a “special proceeding” is any remedy that is not an action. The court found that SVP matters fall under special proceedings.
Drawing from this the court applies the same to LPS matters. Even though the two proceedings are different, the treatment outcome is the same in the fact that it is not punitive. Because SVP matters are not punitive nor are LPS, the appellate court finds that it correctly compares the two.
LPS commitment `"may not reasonably be deemed punishment either in its design or purpose."'"]), and (2) both are "`special proceeding[s] of a civil nature... [and are] civil commitment proceeding[s] commenced by petition independently of a pending action.' [Citation.]" (Yartz, at pp. 536-537; see Conservatorship of Martha P., supra, 117 Cal.App.4th at p. 867.
In regards to the contention that failure to enter an objection suggests right of access, the appellate court found that the trial court erred. The NBC Subsidiary court addressed the issue of whether public access to an "ordinary" civil trial was appropriate, but did not extend its scope into whether that same privilege applied to special proceedings.
This appellate court found that there had been no preceding historic case that had addressed the issue of whether LPS matters were public or private. The only available legislature that addressed public hearings was § 5118, that stipulated that any party to the proceeding may demand that the hearing be public. This insinuates that LPS proceedings were generally nonpublic and that it was up to the party members to request that it be open to the public.
Also Welf and Inst Code § 5328 mandates that “[a]ll information and records obtained in the course of providing services under ... Division 5 (commencing with Section 5000) ... to either voluntary or involuntary recipients of services shall be confidential.” See also that “And a court-ordered evaluation under the LPS Act is to "be carried out with the utmost consideration for the privacy and dignity of the [proposed LPS conservatee].” (see Welf and Inst Code § 5200.)
At the time California conservatorship practice mentions the issue of privacy:
“Confidentiality is a significant issue in all LPS conservatorship proceedings. In at least one county, the entire file is confidential, the court calendar is not available to the public, family members can receive notice of the hearing only if the patient consents and can attend the hearing only at the patient's request. In some counties, the conservatorship investigator's report and doctor's declarations are confidential, but the petition and calendar are available to the public, although the court may close the hearing. In other counties, the report and declaration are confidential, and the matter is heard in open court unless it is a contested hearing, which will be closed to the general public. In still other counties, even contested hearings are open to the public, unless good cause is shown to close them on request." (in re. Cont.Ed.Bar 2012) Conservatorships for the Gravely Disabled Under the LPS Act, § 23.47, pp. 1340-1341 (rev. 5/13).)
Conservatee argues that this limited amount of evidence demonstrates that LPS conservatorship proceedings are not presumptively open and that the LPS Act intends to safeguard the privacy rights of the proposed conservatee. The conservatee asserts that these statutes support his assertion that there is not a tradition of openness of LPS court proceedings, to the extent they (1) may be construed to require that hearings be nonpublic, absent a "demand that the hearing be public" (§ 5118); (2) require that the privacy rights of proposed conservatees be given the utmost respect; and (3) preserve the confidentiality of medical and other records relating to proposed conservatees' care and treatment.
The appellate court also asserts that the public usefulness of accessing such proceedings is not sustained. The appellate court assesses each by a several prong test.
(1) the "enhancement of the performance and accuracy of trial proceedings; (2) education of the public, (3)[performing a `therapeutic' value to the community, (4) “providing a means ... by which citizens scrutinize and `check' the use and possible abuse of judicial power, (5) serving to enhance the truth-finding function of the proceeding
The first and last prong do not apply to LPS conservatorship matters as they are not criminal proceedings. The court finds that public scrutiny will not enhance the truthfulness of the proceeding. I personally disagree as mistruths can be found in any proceeding. The education of the public over LPS matters and mental health is a valid point, but the court finds that there is usually no limit when applying this prong theoretically and the conservatee’s privacy rights are more important than public education. The factor of whether the community benefits from such lacks foundational support and the court dismisses it as LPS matters are not relevant because societal reactions such as outrage are far less common than in criminal. Again I disagree because many people have expressed outrage and concern regarding arbitrary conservatorships and civil commitments. In regards to whether LPS matters need to be scrutinized by the public to ensure that justice is properly served, the court finds that like community benefits, it can be applied to any kind of proceeding and the conservatee’s rights outweigh any benefit.
In total, the appellate court found that the public utility of having open LPS conservatorship proceedings is far beneficial than the utility of having criminal proceedings open to the public. The court finds that based on the lack of public benefit and historic record, there is no public constitutional right of public access to LPS proceedings, including jury trials.
Finally, in regard to whether LPS proceedings are to be held open, the appellate court examines Civil procedure § 124 against Welf and Inst Code § 5118.
The court first examines § 5118. The code states that: “Notwithstanding any other provisions of this section, any party to the proceeding may demand that the hearing be public, and be held in a place suitable for attendance by the public.” The term "the hearing" in the previously quoted sentence refers to any hearing under the LPS Act”.
As used in this section, a “hearing under this part” includes conservatorship and other hearings held pursuant to § 5350).
There is some argument that the word “hearing” does not enumerate LPS jury trials and therefore the two are separate and should be treated as such. The People argue that hearings are different from trials as trials are far more formal. They cite that jury trials are never mentioned in the law and therefore do not apply. The appellate court reviewed the assertions and found that based on previous case law, there is nothing on the face of section 5118 itself that suggests that the term "the hearing" includes jury trials. We are mindful that our task in “seek[ing] the meaning of a statute is not simply to look up dictionary definitions and then stitch together the results. Rather, it is to discern the sense of the statute, and therefore its words, in the legal and broader culture.”
The court reads that the law should be read in the context of the case is appeared and apply it to the case presented and the broader sense of the meaning.
Since the law does not directly address whether LPS jury trials are nonpublic, the appellate court turns to other relevant sections of the LPS Act.
The court found in two other cases where the law does not distinguish between a hearing and a jury trial:
There is no functional distinction between the two proceedings; the terms "hearing" and "trial" in section 5303 both mean a trial.
there shall be a court hearing or a jury trial, whichever is requested, on the issue of whether the conservatee is still gravely disabled and in need of a conservatorship." (Italics added.) This language in section 5362, subdivision (a) initially equates the term "court hearing" with "jury trial," and later equates a "court hearing" to a bench trial.
Drawing from these two examples, the court finds that the LPS act intended to confer the same properties to hearings and jury trials when it comes to privacy rights and presumed nonpublic nature.
Having established that LPS hearings and jury trials are the same, the issue of confidentially must be established. The appellate court found that the LPS act mandates in § 5328 requires that “[a]ll information and records obtained in the course of providing services under the LPS Act (among other statutes) be kept confidential.” The conservatee contends that this applys to court transcripts. The People contend that court transcripts are separate because they are not “information and records obtained in the course of providing services.” The appellate court found that the law when read in a greater context extends that protection to jury trial transcripts and records. This protection falls within the broader patient psychotherapist confidentiality laws. Following this, the appellate court applies the psychotherapist privilege constructs. Because psychoanalysis and psychotherapy are dependent upon the fullest revelation of the most intimate and embarrassing details of the patient's life, a patient ... unless assured that such information can and will be held in utmost confidence, will be reluctant to make the full disclosure upon which diagnosis and treatment ... depends”. Because of this sensitive nature, the information conveyed must be safeguarded by the LPS act. The psychotherapist client clause mandates that sensitive patient information be protected and disclosure be limited to certain officials and courts.
“[t]o the courts, as necessary to the administration of justice" (§ 5328, subd. (f)), the statute is to be "strictly construed... [in] permitting release of information only under limited circumstances to limited government agencies”
The court finds that this carries through to LPS trial transcripts. The appellate court notes that the LPS act created this extra security as mental health is of great importance and protecting that information allows patients who otherwise would be too shy to seek treatment to be treated. The court finds that if releasing the trial transcripts would violate the confidentiality even if the transcripts are not the direct records of the patient.
Following all of the reasons proffered above, the appellate court found that despite any explicit mention in the law, LPS trials are presumptively nonpublic. The court finds that a finding of grave disability relies on testimony from expert witnesses and other professionals who are bound by the confidentially conferred by § 5328. Because the public benefit does not outweigh the importance of confidentiality, the appellate court found that the trial court had misapplied the law and issued a writ of mandate commanding the instant superior court to vacate its order and enter a new order denying the respondents access to the court transcripts.
***** A side note is that there was confusion regarding whose orders superceded whose. The superior court who initially heard the matter transferred the matter to a different judicial officer. The second judicial officer entered a different judgement than the first. Because of this, the court did not know which order superseded which one and whether the change in officer was lawful.
In regards to the media, the first media, the Herald’s motion cited its three reasons. The motion also contained a request to seek an order that reversed the automatic sealing of LPS records. The other news outlet, The Californian only sought to inspect two of the files as they might have information useful to the public.
Because The Herald's motion involved a request for access to court files and an order unsealing all LPS files made by an entity not involved in any prior proceedings that prompted the issuance of Presiding Judge Roberts's prior orders, those orders did not act as an impediment to Judge Hood's subsequent action on The Herald's motion.
The court addresses the issue of forum shopping and finds that with the reassignment of one judge the orders from a previous one can be nullified. This does limit the power of the first judge should that occur.
With respect to the court's internal reassignment of the motions to Judge Hood, we are mindful of the limitations involved in one judge, by subsequent order, nullifying a prior ruling by another judge of the same superior court. (See In re Alberto (2002) 102 Cal.App.4th 421, 426-428 [125 Cal.Rptr.2d 526].)
The court provides its reasoning behind limiting the power of the former judge under those circumstances — (1) discouraging "`forum shopping'" by the parties, and (2) preventing the later-ruling judge from becoming "a one-judge appellate court" (id. at p. 427) — do not pertain to this case.
The court ruled that because the Presiding judge’s reassignment of these matters to the subsequent judge, was authorized by statute and rules to “distribute the business of the court among the judges, and prescribe the order of business.”
Procedural Posture
Petitioner proposed conservatee sought a writ of mandate, challenging an order of respondent Superior Court of Monterey County (California) that permitted real parties in interest, the People and two newspapers, access to copies of the reporter's transcripts of the jury trials conducted in two proceedings under the Lanterman-Petris-Short Act (LPS Act), Welf. & Inst. Code, § 5000 et seq., involving petitioner.
Overview
The court held that the trial court erred in granting real parties access to the transcripts, because involuntary conservatorship proceedings under the LPS Act were not ordinary civil trials and proceedings that were presumptively public. Rather, involuntary conservatorship proceedings under the LPS Act were special proceedings. However, they were not special proceedings for which there was a qualified First Amendment right of public access. There was not such a tradition of openness or utility associated with having the proceedings public to support a finding of a constitutional right of access. Furthermore, Welf. & Inst. Code, § 5118, made LPS jury trials presumptively nonpublic, thereby constituting a statutory exception to Code Civ. Proc., § 124's general requirement that such sittings be public. The court concluded that the trial court erred in finding that, notwithstanding that LPS jury trials were presumptively nonpublic, the parties by their conduct were deemed to have "requested" under Welf. & Inst. Code, § 5118, that the hearings be public.
Outcome
The court granted the petition for writ of mandate.