Most people are familiar with the powers to place a conservatee in a closed locked treatment facility and order the conservatee take psychiatric medication. However, an LPS conservator of the person has the power of placement of the conservatee as well as the same general powers granted a Probate conservator.
To be county specific our letters of LPS conservatorship state that the conservator has the right to consent to routine medical treatment related and unrelated to remedying the conservatee's grave disability. The investigating officer submits its recommendations as to what powers should be granted to the conservator and the court issues orders and letters once it receives all the evidence from both parties. Welf & I C § 5357, 5360. continued......
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3/27/2024 34 U.s.c. § 40911 (c)(1)(a) is not a loophole around intermediate scrutiny and the state relief from disabilities programRead NowImportant distinction for those who are prohibited persons under § 922 (g)(4).The NICS Improvement Act of 2007 has two clauses for distinguishing what the origin of civil commitments that may be subject to exclusion from the NICS. Most mental health commitments are subject to the state relief from disabilities program as described in the NICS Improvement Act of 2007. Very few fall commitments qualify for the narrow clause in NIAA § 101 (c)(1)(a)/34 U.S.C. section 40911 (c)(1)(A) which exempts federal agency's commitment orders from the NICS. Some people have attempted to bypass the state relief from disabilities program by asserting that they fall under section 101 (c)(1), but their reliance is misplaced as section 40911 (c)(1)(a) entails a small class of persons, the scheme of most mental health commitment procedures, and other overwhelming state interests bar a successful challenge to section 40911.
There have been several cases* where petitioners alleged that their mental health records were inappropriately submitted to the NICS citing 34 U.S.C. § 40911 (c)(1)(A) which bars submission of disqualifying mental health records from a federal agency. Petitioners allege that their superior court of their state or their state’s DOJ fall under the same category as a federal agency. Section (A) reads: No department or agency of the Federal Government may provide to the Attorney General any record of an adjudication related to the mental health of a person or any commitment of a person to a mental institution if (A) the adjudication or commitment, respectively, has been set aside or expunged, or the person has otherwise been fully released or discharged from all mandatory treatment, supervision, or monitoring; Petitioners allege that the code was interpreted to include state agencies or courts as having the same protections as federal agencies. However, in consolidating these cases, the petitioners' error was the same. First, the origin of the NICS mental health entry is a state one not. federal one. Even if the hospital records come in through the FBI, not the hospital itself, or that if a hospital transmitted a disqualifying record to the state's DOJ, the DOJ’s entering that information to the NICS is that of state official not a federal. Petitioner alleged that the DOJ was no different than a federal agency issuing a commitment order. However, the CA DOJ oversees the CA justice system and does not have jurisdiction over other states. The court in one of the opinions stated that courts generally resist reading words or elements into a statute that do not appear on its face. “Where Congress knows how to say something but chooses not to, its silence is controlling”. This means that if Congress wrote federal agencies but did not clarify whether that was to include state agencies, the silence vis a vis state agencies controls and unless Congress clarifies to include state agencies, the original designation of federal agencies shall remain the only body that falls under the purview of section 40911 (c)(1)(a). We now move to the issue of why petitioners may occasionally attempt to try this line of reasoning instead of going through the state relief from disabilities program. Outside of comity issues, there is unspoken speculation that this provision barring state courts and agencies may lie in the timing of involuntary holds. Almost all defendants, who are adjudicated as mentally deficient and committed to a mental institution are done so by a state court or state agency are subject to narrow timeframes. The code uses the words "discharged" and "fully released" and from all "treatment" and "supervision". These words characterize all involuntary hospitalizations be it long term holds and short holds. Persons who are committed involuntarily are not done so via formal commitment hearings with their attendant indicias of due process. Most involuntary holds are ordered for short periods of time and are not long term treatment orders (such as the LPS conservatorship) that demand more due process protections. For short term holds, they are held on being a danger to self and then generally released after a 2 or 3 week hold with no conditions of release or continued treatment. Petitioners reason that this unconditional release qualifies as "fully released or discharged" and thus the disqualifying mental health hospitalization stay would not qualify for submission to the NICS if the district court decided in their favour that state agencies or courts should be included within the meaning of section 40911. However, these court decisions are unlikely to be overruled as there is a strong compelling state interest in keeping firearms out of prohibited persons' possession and by bypassing the federal relief from disabilities program, Everytown and Giffords would assert that it would be too easy to return firearms to the mentally ill. If superior courts or judicial officers (as in the case of cert review hearings) were treated not as state agencies or courts but as federal agencies, then there would appear to be no need for the relief from disabilities program as section 40911 directs that they were to follow the same mandates as the federal agencies. The concept behind the relief from disabilities program is to provide a legal avenue for the mentally ill to demonstrate their return to mental fitness and to prove they are no longer a danger to self. This mandate exists because under Heller the mentally ill are not afforded strict scrutiny and Bruen's new framework relying on documented historical tradition of barring the mentally ill does not hold water for 2A challenges. Furthermore, by bypassing the relief from disabilities program, including state agencies under section 40911 (c)(1)(a) could possibly been seen as bypassing the intermediate scrutiny as laid out in Heller and unresolved by Bruen. Some historical context behind the relief from disabilities program: Originally, the McClure-Volkmer bill passed in 1986 extended the relief from disabilities program to others beyond felons. It extended relief from disabilities to those who had been convicted of crimes involving a firearm, involuntarily committed to a mental institution or adjudicated incompetent, or other violators of the Gun Control Act. However, after lobbying from several gun control groups including the Violence Policy Center who pulled randomly selected felons' criminal backgrounds and created the nexus to when their relief from disabilities was granted, new amendments were proposed to strip federal funding for the program. The Lautenberg amendment in an attachment to the Treasury Department Appropriations Act, 1993 (Pub L No 102-393, 106 Stat 1729, 1732 (1992)), included the provision that amended the relief from disabilities program so that any person prohibited from possessing firearms could continue to seek relief BUT no federal funding could be expended on the program. They reasoned that the money was better spent on other programs and that section 925 (c) was meant to permanently prohibit felons from possessing a firearm. Hence in the NIAA of 2008, each state was allowed to draft its own relief from disabilities program and only qualified for removal from the federal NICS database if the state court made a finding that 1) said person would not be likely to act in a manner dangerous to public safety and that 2) the granting of the relief would not be contrary to the public interest. If a state's program did not render such a finding, then the state prohibition may be lifted but the federal ban remained leaving petitioners with no means of challenging the federal ban given the barrier arising from 11th amendment claims and abstention. Given this history it is understandable to see why petitioners from states that do not have a qualifying relief from disabilities program would attempt this argument for holding state and federal courts to the same mandates. *Bonelli v. United States (D. Ariz., Mar. 7, 2018, No. CR-13-01551-PHX-DJH) 2018 WL 10195959, report and recommendation adopted (D. Ariz., Nov. 5, 2019, No. CR-13-01551-PHX-DJH) 2019 WL 5704364 Franklin v. Lynch (W.D. Pa., Nov. 21, 2016, No. 3:16-CV-36) 2016 WL 6879265 Keyes v. Lynch (M.D. Pa. 2016) 195 F.Supp.3d 702 WORK IN PROGRESS
§ 40915. Relief from disabilities program required as condition for participation in grant programs (a) Program described. A relief from disabilities program is implemented by a State in accordance with this section if the program-- (1) permits a person who, pursuant to State law, has been adjudicated as described in subsection (g)(4) of section 922 of title 18, United States Code, or has been committed to a mental institution, to apply to the State for relief from the disabilities imposed by subsections (d)(4) and (g)(4) of such section by reason of the adjudication or commitment; (2) provides that a State court, board, commission, or other lawful authority shall grant the relief, pursuant to State law and in accordance with the principles of due process, if the circumstances regarding the disabilities referred to in paragraph (1), and the person’s record and reputation, are such that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest; and (3) permits a person whose application for the relief is denied to file a petition with the State court of appropriate jurisdiction for a de novo judicial review of the denial. 34 U.S.C. § 40915 (LexisNexis, Lexis Advance through Public Law 118-22, approved November 17, 2023).) Cal Wel & Inst Code § 8103 (f)(4) – (9) reads If the court finds by a preponderance of the evidence that the person would be likely to use firearms in a safe and lawful manner, the court may order that the person may own, control, receive, possess, or purchase firearms, and that person shall comply with the procedure described in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code for the return of any firearms. We address the concern that should a district appellate court find that the CA relief program be considered in compliance with 34 U.S.C. § 40915, said court would in effect read the public interest requirement out of the federal statute, contravening § 105 of the NICS Improvement Amendments Act of 2007, Pub. L. No. 110-180, 121 Stat. 2559, (NIAA) which lays out clear requirements for such a determination. Congress did not intend for this language to be superfluous and thus § 105 will not be construed to render it as such. (Keyes v. Lynch (M.D.Pa. 2016) 195 F. Supp. 3d 702, 705.). We acknowledge that it is not an appellate court's role to rewrite the statutes that the legislature enacts; no matter how much rewriting may be desired by a particular group or by the appellate court. The court may not rewrite a statute to conform to an assumed intent that does not appear from its language. Just as courts are not allowed to eliminate words that were purposely included in a statute via judicial interpretation, they are also obliged not to add new words or clauses where the legislature purposely omitted. (Thompson v. Western Constr., Inc., 2023 W. Va. App. LEXIS 187, *1) The appellate court’s role is limited to interpreting and applying the Welfare and Institutions Code as it currently exists (Pittman v. Cook Paper Recycling Corp. (Mo.Ct.App. 2015) 478 S.W.3d 479, 480.). Courts may not, under the guise of statutory construction, enlarge or otherwise change the terms of a statute. In determining the legislative intent, the subject matter, effect, reason for the statute and consequences of proposed interpretations must all be considered, quoting *1209 State ex rel. Hager v. Iowa Nat'l Mut. Ins., 430 N.W.2d 420, 422 (Iowa 1988)); Acker, 541 N.W.2d at 519 (citing identical rules to those quoted from Miller above, and adding that “we will not construe a statute in a way that would produce impractical or absurd results,” and that the court must look at the whole statute and not the separate parts. We assert that Appellate courts may not rewrite unambiguous statutes or rewrite the clear language of a statute to broaden the statute's application. It is only when the language supports more than one reasonable construction that we consult legislative history, the ostensible objects to be achieved, or other extrinsic aids in order to select the construction that most closely comports with the legislative intent. (Melissa R. v. Superior Ct., 207 Cal. App. 4th 816, 144 Cal. Rptr. 3d 48 (2012)); (In re I.A., 40 Cal. App. 5th 19, 23, 252 Cal. Rptr. 3d 774, 777 (2019)). Furthermore, a court may consider the language used in the statute, the objects sought to be accomplished, the evils and mischiefs sought to be remedied and place a reasonable construction on the statute which will best effect its purpose rather than one which will defeat it. (Prudential Ins. Co. of Am. v. Rand & Reed Powers P'ship, 972 F. Supp. 1194, 1208 (N.D. Iowa 1997), aff'd, 141 F.3d 834 (8th Cir. 1998) Additionally, a determination that a person is able to act in a manner safe to the public and granting of relief would not be dangerous to the public interest is implicit in a finding at a section 8103 hearing. In other words, section 8103’s findings of safe and lawful firearm handling adequately subsumes the inquiry. In supporting this declaration, we turn to both the construction of section 8103 and the overall ambit of the LPS Act. That said, we need to examine Wel & Inst Code § 8103 (f)(4) – (9). The phrase “safe and lawful” These two words are written in the conjunctive meaning that each word is separate and bears equal weight in the court’s determination. The court may not find that the person can safely use a firearm but bears a tendency to use the firearm in such a manner that may violate state and federal law given that the legislature did not write this clause in the disjunctive with an “or”. The words “lawful” implicates public safety. [continued] Next, we turn to the legislature’s intent. Welfare and Institutions Code section 8103 (f)(4)-(9) was written within the larger LPS Act. The LPS Act was passed in ____ and was codified to provide prompt evaluation and treatment for the mentally ill and to ensure public safety. (Jacobs v. Grossmont Hosp., 108 Cal. App. 4th 69, 76, 133 Cal. Rptr. 2d 9, 13 (2003), holding modified by Gonzalez v. Paradise Valley Hosp., 111 Cal. App. 4th 735, 3 Cal. Rptr. 3d 903 (2003) Section 8103 (f)(4)-(9) was passed in 2019 as a part of ________. However, its subsequent passage does not preclude it from the protections afforded by the LPS Act. A statute must be construed in context, keeping in mind its statutory purpose vis a vis with other statutory sections relating to the same subject so that all must be harmonized, both internally and with each other, to the greatest extent possible. A statute should be construed whenever possible so as to preserve its constitutionality. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1383 [241 Cal.Rptr. 67, 743 P.2d 1323].) CARE COURT AND 18 U.S.C.A. § 922(g)(4) PROHIBITION
Relating to the issue of a CARE court order triggering a firearm prohibition, correct me if I am incorrect but the newly passed CARE court legislation does not mention a firearm prohibition be it state or federal. The point of contact process for CA is essentially useless if a CARE court adjudication does not trigger a prohibition within the various databases. https://leginfo.legislature.ca.gov/faces/billVersionsCompareClient.xhtml?bill_id=202120220SB1338 Relevant parts selected Cal. Welf. & Inst. Code § 5972 To qualify for CARE court, Cal. Welf. & Inst. Code § 5972, an individual shall qualify if the following criteria are met: (b) The person is currently experiencing a severe mental illness, as defined in paragraph (2) of subdivision (b) of Cal. Welf. & Inst. Code § 5600.3 and has a diagnosis identified in the disorder class: schizophrenia spectrum and other psychotic disorders. (c) The person is not clinically stabilized in on-going voluntary treatment. (d) At least one of the following is true: (1) The person is unlikely to survive safely in the community without supervision and the person’s condition is substantially deteriorating. (2) The person is in need of services and supports in order to prevent a relapse or deterioration that would be likely to result in grave disability or serious harm to the person or others, as defined in Section 5150. (e) Participation in a CARE would be the least restrictive alternative necessary to ensure the person’s recovery and stability. To review 27 C.F.R. § 478.11 defines Adjudicated as a mental defective as (a) A determination by a court or other lawful authority that a person, as a result of mental illness, incompetency, condition, or disease: (1) Is a danger to himself or to others; or (2) Lacks the mental capacity to contract or manage his own affairs The conflict lies in that a CARE court adjudication technically is a court proceeding with the indicias of due process per Mai. “Commitments under [California] state-law procedures that lack robust judicial involvement do not qualify as commitments for purposes of § 922(g)(4). Mai v. United States, 952 F.3d 1106, 1110 (9th Cir. 2020). Per Cal. Welf. & Inst. Code § 5976. Respondent shall: (a) Receive notice of the hearings. (b) Receive a copy of the court-ordered evaluation. (c) Be entitled to be represented by counsel at all stages of a proceeding commenced under this chapter, regardless of the ability to pay. (d) Be allowed to have a supporter, as described in Section 5982. (e) Be present at the hearing unless the respondent waives the right to be present. (f) Have the right to present evidence. (g) Have the right to call witnesses. (h) Have the right to cross-examine witnesses. (i) Have the right to appeal decisions, and to be informed of the right to appeal. Unlike the Stokes case where the challenged law under § 5250 et seq was an informal certification hearing with no automatic right to formal legal counsel, CARE court has laid out in its provisions the right of the defendant to avail himself of the protections afforded by formal court processes. Stokes v. United States Dep't of Just., 551 F. Supp. 3d 993, 1001 (N.D. Cal. 2021) CARE court legislation is written in relatively ambiguous manner so that triggering the federal prohibition would be challenging to justify. The legislative guidelines both intone that the defendant is mentally ill and presenting as a danger to themselves but in the same clause they are not yet currently gravely disabled or such a danger to themselves or others that they meet criteria for a 5150 hold. Within § 5972, the wording of the qualifying criteria renders conformity with the ambit of 27 C.F.R. § 478.11 difficult as the federal code mandates that there must be a clear finding of dangerousness to self or others and mental illness. Subdivision (2) of § 5972 reads that CARE court services should be ordered to prevent a decompensation or relapse that would be “likely to result in [current] grave disability or serious harm to others or self within the meaning of § 5150”. If the DOJ were to follow strictly apply 27 C.F.R. § 478.11, this particular phrasing “to prevent a relapse” that would result in serious physical harm does not appear to confer a finding of current serious harm to others or self and thus does not fall within the federal definition that defendant is a danger to self or others; the first prong of the federal code. In fighting against a federal prohibition, advocates could draw from LPS Conservatorship precedents. Perceived likelihood of future relapse, without more, is not enough to justify establishing [current grave disability] and need for LPS Conservatorship. Conservatorship of Jones (1989) 208 Cal.App.3d 292, 302 [256Cal.Rptr. 415]. The pivotal issue in whether [respondent] is presently gravely disabled, not whether the patient would incur some incidental benefit from conservatorship. Conservatorship of Benvenuto (1986) 180 Cal.App.3d. 1030, 1034 [226 Cal.Rptr. 33] However, advocates in California in making their case can articulate to adjacent LPS Conservatorship case law to support a finding that a CARE court determination is the same as a finding that a defendant is dangerous to themselves or others due to a serious mental illness diagnosis. Drawing from LPS Conservatorship precedent, advocates can rely on other case law which does address that in certain cases the likelihood of future deterioration foreclose a finding of current grave disability if the fact finder can determine the patient has no insight into their mental disorder which is the majority of the serious mentally ill population. Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1576-1577 [254 Cal.Rptr.552]. They can also assert that if dangerousness to self cannot be assessed at the present moment through physical actions alone, the threat of harm to oneself may be through neglect or inability to care for oneself”. In re Doremus v. Farrell (D.Neb. 1975) 407 F.Supp. 509, 515. A note; CARE court determination based on grave disability alone is moot as the BATFE clarified that grave disability finding alone does not trigger the prohibition. Whether that is proper legal analysis is a discussion for later. Therefore, I believe that if there were to be prohibition it would be at the state level and follow the same format as Cal. Welf. & Inst. Code § 8103 et seq. Perhaps it would be a five year prohibition. The Mental Health Division of The Superior Court of Los Angeles County will implement the following changes to courtroom operations effective January 3, 2023:
Filings may be faxed to (442) 247-3972. Documents for competency matters may continue to be submitted for filing to the Hollywood Courthouse Clerk’s Office or faxed to (442) 247-3957. Counsel and parties are instructed to indicate the assigned judicial officer and department on the first page of all documents submitted for filing to ensure proper departmental assignment, calendaring of hearings and document routing. 8/3/2023 5250 certification and CA's state level non existent relief from federal disabilities.Read NowDISCLAIMER: If a person is seeking relief from disabilities and they are facing ONLY 5150's AND/OR 5250 WITHOUT HAVING HAD A CERTIFICATION HEARING OR WRIT OF HABEAS CORPUS; our State Form for Petition for Relief from Firearm Prohibition will suffice along with development of a strong points and authorities along with exhibits.
Link to form REQUIREMENT FOR NOTICE UNDER WIC 388
In re Mia M. (2022) 75 Cal.App.5th 792,806 work in progress In re Mia M. (2022). 75 Cal.App.5th 792, 807. The appellate reviewed the lower court’s ruling on the section 388 petition for abuse of discretion. Since a section 388 is a _____, the appellate courts will review the instant court’s decision with higher level of deference. In re E.S. (2011) 196 Cal.App.4th 1329, 1335. However, since the issue of notice carries the serious consequence of permanent severance of the parental relationship with minor, the reviewing court will consider the matter applying the de novo standard as to whether inadequate notice violated parent’s due process rights. In re J.H. (2007) 158 Cal.App.4th 174, 183). This cases arises out of a [alleged] father who was in the process of elevating his paternity via a DNA test when the court proceeded in terminating [whose] services and setting the .26 hearing. Father appealed on the basis that the court did not wait to confirm paternity and did not provide him proper notice of proceedings against him. Father alleges that he was not properly noticed of _________. A father’s status is equally significant in a dependency case as the mother because his role as presumed or putative? determines the extent to which he may participate in the proceedings and the number of rights to which he is entitled. Presumed father status ranks highest as this “class” of father is afforded the right to counsel and a narrowly tailored case plan. Alleged fathers are not afforded the same degree of rights but they are entitled to notice and a chance to elevate their paternity status (through DNA testing?). Depending on the circumstances, a court may provide reunification services to a biological father, if it determines that the provision of services will benefit the child. Welf and Inst Code § 361.5. |
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Juvenile Dependency and
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