Conservatorship of Eric B.

IN THE SUPREME COURT OF
CALIFORNIA
Conservatorship of the Person and Estate of ERIC B.
PUBLIC GUARDIAN OF CONTRA COSTA COUNTY, as
Conservator, etc.,
Petitioner and Respondent,
v.
ERIC B.,
Objector and Appellant.
S261812
First Appellate District, Division Five
A157280
Contra Costa County Superior Court
P18-01826
April 28, 2022
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Liu, Kruger,
Groban, Jenkins, and Moore* concurred.
*
Associate Justice of the Court of Appeal, Fourth Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
Conservatorship of ERIC B.
Opinion of the Court by Corrigan, J.
Justice Kruger filed a concurring opinion, in which Justices
Liu and Groban concurred.
Conservatorship of ERIC B.
S261812
Opinion of the Court by Corrigan, J.
The Lanterman-Petris-Short (LPS) Act authorizes one-
year conservatorships for those gravely disabled by a mental
disorder or chronic alcoholism. (Welf. & Inst. Code, § 5350.)
Conservatorship proceedings are civil in nature, so the
constitutional protections afforded criminal defendants do not
directly apply. However, the Legislature has extended many of
the same rights by statute to the commitment of persons found
not guilty of crimes by reason of insanity (NGI’s). (Pen. Code,
§ 1026.5, subd. (b)(7).) Among those is the right not to give
compelled testimony at trial. (See Hudec v. Superior Court
(2015) 60 Cal.4th 815, 826 (Hudec).) The question here is
whether those facing conservatorship due to an inability to care
for themselves should enjoy the same protection. We conclude
that, for purposes of the right against compelled testimony, the
groups are sufficiently similar that equal protection principles
require the government to justify its disparate treatment of
these proposed conservatees. However, because it is undisputed
any error here was harmless, we need not decide what level of
scrutiny is appropriate or whether the disparate treatment of
conservatees can be constitutionally justified. We affirm the
judgment.
I. BACKGROUND
The Contra Costa County Public Guardian (Public
Guardian) petitioned for an LPS conservatorship on the ground
1
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Opinion of the Court by Corrigan, J.
that appellant Eric B. was gravely disabled. Appellant
requested a jury trial on the petition and objected to giving
compelled testimony, based on the holding in Hudec, supra, 60
Cal.4th 815. The court overruled the objection.
Psychiatrist Michael Levin, M.D., testified that appellant
has chronic schizophrenia. Treatment included three
medications, one of which required weekly white blood cell
monitoring. Appellant’s minimal insight about his illness made
it difficult for him to cooperate with treatment. When not
housed in a treatment facility, he had failed to take his
medication, which aggravated his symptoms. Levin considered
appellant gravely disabled and doubted he could provide for his
basic needs without a conservatorship.
Therapist James Grey became appellant’s case manager
at the Concord Adult Mental Health Clinic in 2016, after
paranoid behaviors put appellant’s subsidized housing at risk.
Appellant had tried to change door locks and damaged his
apartment searching for monitoring devices. Although Grey
arranged transportation for clinic appointments, appellant was
usually unwilling to go. According to Grey, appellant displayed
the paranoia, guardedness, and agitation typical of
schizophrenia, and his cooperation with treatment was “very
inconsistent.” Appellant had full bottles of medication that were
months old and other psychiatric prescriptions went unfilled.
The county had been serving as appellant’s money manager,
providing him an allowance, but he often failed to cash these
checks. Appellant was treated as a psychiatric inpatient when
a temporary conservatorship was ordered but was later released
against Grey’s advice. Within a week, he was admitted to an
emergency psychiatric facility and was eventually transferred to
his current placement. Appellant remained guarded and
2
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Opinion of the Court by Corrigan, J.
paranoid, with an extremely flat affect and disorganized
thoughts. He sometimes believed his mother was not actually
his mother and that others posed a threat to him. He had
significant difficulty complying with treatment and medications
and was generally unable to meet his needs for food and clothing
without support.
Called to the stand by the Public Guardian, appellant
testified that he lived in a board and care facility and was
previously in an intensive treatment unit. After multiple
questions about where he had lived, appellant remarked, “I
didn’t know[,] T-Con had to deal with being here and being
there. It has nothing to do with each other.” He knew that Grey
believed he should be moved from a temporary to a full
conservatorship. Asked what he wanted to happen, appellant
gave a rambling and partially incoherent response, asserting he
might not need a conservatorship because, though he had a
mental health disorder, he did not always need medications for
it.1 He said he was told he had attention deficit disorder as a
child. “I just had a learning disability. They didn’t say anything
about anxiety disorders or any manic problem or anything else
like that.” He could name two of his medications but did not
1
He stated: “Oh, I even kind of have really spoken not too
clearly about this. But I’m more towards the neutrality and
leaving enough area of a cushion that I could have — so I could
leave the temporary conservatorship because maybe it’s that I
don’t need it. And I know I have a mental health — mental
health. [¶] . . . [¶] I know what it is. I live with it. I take
medications for it. When I know I don’t need medications, I don’t
need medications. [¶] But if you will there’s always a little
strike pad here that we can always roughly just braze and find
out my history find out my — and my future means too. I’m
trying to save this for myself.”
3
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Opinion of the Court by Corrigan, J.
understand why he was taking them. He believed, “[T]here’s
just a basic medication standard issue in a given area. And they
hand you medication.” Apparently referring to his inpatient
admission, he said: “I was admitted out of unbreeching contract.
There’s something just going on.” Asked to clarify this
statement, he responded, “This is penetrating. That’s what I
mean. We’ll pass on this.” He acknowledged that he was “sort
of still dependent” on his current program. He had no plans for
where he would live or how he would support himself if released
from the conservatorship. He thought he might get a job but
acknowledged he had not worked since 2011. He said he would
take his medications but when asked how he would pay for food
responded, “Pay for food? Rely on the conservatorship.”
The jury found appellant gravely disabled. The court
appointed the Public Guardian as conservator, ordered that
appellant continue in his current placement, and restricted his
ability to possess firearms and refuse treatment. On appeal,
appellant challenged the order compelling his testimony. He
argued that because the right to silence is statutorily provided
in NGI extension proceedings, equal protection required that
the same right should apply in the LPS context. The Court of
Appeal held that LPS conservatees are similarly situated with
NGI’s for this purpose but ruled the error in compelling his
testimony was harmless. Because the Court of Appeal expressly
disagreed with the contrary holding in Conservatorship of Bryan
S. (2019) 42 Cal.App.5th 190 (Bryan S.), we granted review to
resolve the conflict.2
2
The Public Guardian represents that the conservatorship
at issue here terminated on June 16, 2020, rendering the appeal
4
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Opinion of the Court by Corrigan, J.
II. DISCUSSION
A. Overview of Relevant Civil Commitment Schemes
“California has no fewer than nine involuntary
commitment procedures that may apply to persons who have
various mental problems, and who pose a threat to their own
welfare or to the safety of others. Some of these laws . . . operate
in a manner largely independent of the criminal justice system.
(See [Welf. & Inst. Code,] §§ 4825 [developmentally disabled
persons . . .], 5000 et seq. [mentally ill persons under the LPS
Act].) Others apply depending on whether a criminal
prosecution has occurred.” (People v. Barrett (2012) 54 Cal.4th
1081, 1093 (Barrett).) We discuss only the most pertinent
commitment schemes here.
1. Extended Commitments Connected to a Criminal
Case
NGI Commitments “A person found not guilty of a
felony by reason of insanity may be committed to a state hospital
for a period no longer than the maximum prison sentence for”
the offense. (Hudec, supra, 60 Cal.4th at p. 818; Pen. Code,
§ 1026.5, subd. (a).) Thereafter, the district attorney may
petition to extend the NGI commitment by two years if the
person “represents a substantial danger of physical harm to
others” because of “a mental disease, defect, or disorder.” (Pen.
Code, § 1026.5, subd. (b)(1).) The respondent has a statutory
moot. The problem frequently arises in this area of law given
the short duration of conservatorships. (See Conservatorship of
John L. (2010) 48 Cal.4th 131, 142 fn. 2.) Because the case
raises important issues capable of repetition but likely to evade
review, we exercise our discretion to decide this otherwise moot
appeal. (See Conservatorship of K.P. (2021) 11 Cal.5th 695, 705,
fn. 3.)
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Opinion of the Court by Corrigan, J.
right to representation by counsel and a jury trial. (Id.,
subd. (b)(3)–(4).) As discussed further below (see post, at pp. 13–
15), statutes also require that NGI extension hearings comply
with certain federal and state constitutional guarantees
applicable in criminal proceedings. (Pen. Code, § 1026.5,
subd. (b)(7).) The commitment can be renewed for two-year
periods without limitation, subject to the same procedural
requirements. (Id., subd. (b)(10).) Although provided for by the
Penal Code, NGI extension trials are considered “essentially
civil in nature, rather than criminal, because they are directed
at confinement for treatment rather than punishment.” (Hudec,
at p. 819.) NGI’s are typically confined in state hospital
facilities. (See Pen. Code, § 1026, subd. (a).)
Other Criminally Based Commitments The Penal Code
also provides for the involuntary civil commitment of violent
offenders with mental health disorders (see Pen. Code, § 2960 et
seq.) (OMHD’s)3 and those convicted of sexually violent offenses
(see Welf. & Inst. Code, § 6600 et seq.) (SVP’s). In these
instances, the person has been convicted of serious crimes and
incarcerated. The civil commitment proceedings may be
brought once the term of incarceration has ended. (Pen. Code,
§§ 2970, subd. (b), 2972, subd. (c); Welf. & Inst. Code, §§ 6601–
6603.) In both cases, the statutes provide for renewable terms
3
Such prisoners were previously described as mentally
disordered offenders, or MDO’s. (See, e.g., People v. Blackburn
(2015) 61 Cal.4th 1113, 1116 (Blackburn).) The Legislature
recently changed this terminology to “offender with a mental
health disorder.” (Pen. Code, § 2962, subd. (d)(3); Stats. 2019,
ch. 9, § 7.) In accordance with this change, we now refer to
extension proceedings under Penal Code section 2962 as OMHD
commitments.
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Opinion of the Court by Corrigan, J.
of commitment, as well as the rights to counsel, jury trial, proof
beyond a reasonable doubt, and a unanimous verdict. (Pen.
Code, § 2972, subds. (a)(1)–(2), (e); Welf. & Inst. Code, §§ 6603,
subd. (a), 6604.)4 As does appellant, we focus our analysis
primarily on the comparison between LPS Act commitments
and those under the NGI scheme.
2. LPS Act Commitments
The Legislature has also enacted a civil commitment
scheme for involuntary mental health treatment without an
underlying criminal offense. The LPS Act authorizes short-term
involuntary detentions (see Welf. & Inst. Code, §§ 5150, 5250)
and one-year conservatorships for those who are gravely
disabled due to a mental health disorder or chronic alcoholism
(see id., § 5350).
When a treatment professional determines a person is
gravely disabled and unwilling or unable to accept treatment
voluntarily, the county’s public guardian may petition to
establish a conservatorship. (Welf. & Inst. Code, § 5352; see
Conservatorship of K.P., supra, 11 Cal.5th at pp. 708−709.) If
the matter proceeds to trial and the person is found gravely
disabled, the court appoints a conservator (Welf. & Inst. Code,
§ 5350), imposes “disabilities” as needed (id., § 5357), and
determines an appropriate treatment placement (id., § 5358).
4
The original SVP statutes provided for renewable two-
year commitments. (See People v. McKee (2010) 47 Cal.4th
1172, 1185 (McKee).) Now, however, SVP’s are committed for an
indeterminate period (Welf. & Inst. Code, § 6604) but may
petition for discharge if they are no longer “a danger to the
health and safety of others and . . . not likely to engage in
sexually violent criminal behavior” (id., § 6605, subd. (a)(2); see
id., §§ 6608–6609).
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(See Conservatorship of K.P., at pp. 709–710.) A
conservatorship terminates after one year but may be extended
for additional one-year terms upon petition. (Welf. & Inst. Code,
§ 5361.)
The LPS Act provides for two types of conservatorships.
The first and most common is for those who are unable to meet
their own needs for food, clothing, or shelter due to a mental
health disorder. (Welf. & Inst. Code, § 5008, subd. (h)(1)(A).)
This type, which we refer to as a traditional conservatorship, is
the kind at issue here. Those subject to a traditional
conservatorship have a right to be treated in “the least
restrictive alternative placement” (id., § 5358, subd. (a)(1)(A)),
with first priority given to their home or that of a relative (see
id., subd. (c)(1)). However, a significant number of these
conservatees are placed in locked facilities, including state
hospitals. For example, as of February 2019, about 63 percent
of LPS conservatees in the City and County of San Francisco
were placed in locked facilities. (City and County of S.F., Budget
and Legis. Analyst’s Office, Policy Analysis Report: Review of
Lanterman-Petris-Short (LPS) Conservatorships in San
Francisco (Nov. 12, 2019) p. A-11 (San Francisco Analyst’s
Report).) As of November 2019, LPS conservatees made up
approximately 11 percent of the population in state hospital
facilities, with the remainder composed of individuals whose
commitments arose from the criminal justice system. (Cal.
State Auditor, Rep. No. 2019-119 (July 2020) Lanterman-Petris-
Short Act: California Has Not Ensured That Individuals With
8
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Opinion of the Court by Corrigan, J.
Serious Mental Illnesses Receive Adequate Ongoing Care, p. 25
(State Auditor’s Report).)5
A second type of LPS conservatorship, not at issue here,
may be imposed when a person has been ruled incompetent to
stand trial for a criminal accusation (see Pen. Code, § 1370) yet
still “represents a substantial danger of physical harm to others
by reason of a mental disease, defect, or disorder” (Welf. & Inst.
Code, § 5008, (h)(1)(B)(iv)). This kind of commitment is
commonly referred to as a “ ‘Murphy conservatorship,’ ” after
the legislator who sponsored the amendment adding this ground
to the LPS Act. (Jackson v. Superior Court (2017) 4 Cal.5th 96,
102; People v. Karriker (2007) 149 Cal.App.4th 763, 775.)
Criminal defendants ruled incompetent for trial are initially
committed under Penal Code section 1370. If they do not regain
competence within the statutory period, or if there is no
substantial likelihood competence will be regained, the court
will order the public guardian to initiate LPS proceedings. (Pen.
Code, § 1370, subd. (c)(2); see Jackson, at p. 102.) A Murphy
conservatorship may be imposed only if the person has been
charged with a violent felony, a formal finding of probable cause
supports the charge, a mental health disorder prevents the
person from understanding the proceedings, and the person
poses a substantial danger of physical harm to others. (Welf. &
Inst. Code, § 5008, subd. (h)(1)(B).)6
5
We granted judicial notice of the San Francisco Analyst’s
Report and State Auditor’s Report at the request of amici curiae
Disability Rights California, et al.
6
Many of the statistics cited throughout this opinion do not
differentiate between traditional and Murphy conservatees.
However, it appears that Murphy conservatees make up a very
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Opinion of the Court by Corrigan, J.
LPS conservatees have the right to a jury trial to
determine whether they are gravely disabled, as that condition
is statutorily defined. (Conservatorship of K.P., supra, 11
Cal.5th at p. 709; see Welf. & Inst. Code, § 5350, subd. (d)(1).)
They enjoy the right to counsel and a unanimous verdict based
on proof beyond a reasonable doubt. We extended these trial
rights to the LPS context in Conservatorship of Roulet (1979) 23
Cal.3d 219, 235 (Roulet), reasoning that “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.” (Id. at p. 223; see also
Addington v. Texas (1979) 441 U.S. 418, 425.) “At the same
time, a civil commitment proceeding is not a criminal
proceeding, even though it is often collateral to a criminal trial.”
(Blackburn, supra, 61 Cal.4th at p. 1119.) Thus, although some
constitutional protections have been extended from the criminal
context based on due process concerns, “we have also found
various constitutional protections inapplicable.” (Id. at p. 1120.)
For example, Conservatorship of Susan T. (1994) 8 Cal.4th 1005,
1015 (Susan T.) held that the exclusionary rule does not apply
in conservatorship proceedings because the purpose of an LPS
commitment is treatment, not punishment. For similar reasons,
we concluded conservatees have no constitutional right to the
appellate review procedures of Anders v. California (1967) 386
U.S. 738 and People v. Wende (1979) 25 Cal.3d 436.
(Conservatorship of Ben C. (2007) 40 Cal.4th 529, 538–540, 543
(Ben C.).)
small proportion of the total number. (See, e.g., San Francisco
Analyst’s Report, supra, at p. A-11.)
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B. No Constitutional Right Against Compelled Testimony in
Civil Commitment Proceedings
As a matter of constitutional protection, criminal
defendants cannot be compelled to testify against themselves.
(U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.)7
Furthermore, witnesses in both criminal and civil proceedings
have the right to refuse to answer any question that might tend
to incriminate them. (Evid. Code, § 940.)8
The constitutional right against compelled testimony has
not been extended to civil commitment proceedings, however.
Citing the “predominantly civil character of the proceedings,”
this court in Cramer v. Tyars (1979) 23 Cal.3d 131, 137 (Cramer)
did not extend the right to individuals who faced confinement
under former statutes governing the commitment of
developmentally disabled persons. (See Welf. & Inst. Code,
former § 6500 et seq.) We declined to analogize the proceedings
to criminal prosecutions because the statutory scheme served
only the purposes of “custodial care, diagnosis, treatment, and
protection,” and the resulting commitment could not be deemed
7
The Fifth Amendment privilege against self-incrimination
is, of course, broader than the right not to testify against oneself
in a criminal proceeding. (See, e.g., Miranda v. Arizona (1966)
384 U.S. 436, 467.) Here, however, we are concerned only with
the right against giving compelled testimony at a commitment
trial. We need not and do not decide whether any other aspect
of the privilege applies outside the context of a criminal
prosecution.
8
Other privileges are set out in the Evidence Code and
relate to a variety of circumstances. (See, e.g., Evid. Code,
§§ 954 [attorney-client privilege], 980 [marital
communications], 1014 [psychotherapist-patient privilege],
1033–1034 [clergy and penitent privileges].) None of these
Evidence Code privileges is implicated in this appeal.
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punishment. (Cramer, at p. 137.) We further reasoned that the
individual’s testimony would provide the best evidence of
whether commitment was necessary: “Reason and common
sense suggest that it is appropriate under such circumstances
that a jury be permitted fully to observe the person sought to be
committed, and to hear him speak and respond in order that it
may make an informed judgment as to the level of his mental
and intellectual functioning. The receipt of such evidence may
be analogized to the disclosure of physical as opposed to
testimonial evidence and may in fact be the most reliable proof
and probative indicator of the person’s present mental
condition.” (Id. at p. 139.) Later decisions extended Cramer’s
holding to conservatorship trials (Conservatorship of Baber
(1984) 153 Cal.App.3d 542, 550 (Baber)) and LPS proceedings
for the confinement of imminently dangerous persons9
(Conservatorship of Bones (1987) 189 Cal.App.3d 1010,
1015−1016).
Further, the constitutional right against compelled
testimony does not apply in commitment proceedings that arise
in connection with criminal charges. In Allen v. Illinois (1986)
478 U.S. 364, 373–374, the high court held that the federal
privilege against self-incrimination did not apply in proceedings
under Illinois’s Sexually Dangerous Persons Act because the
commitments were essentially civil in nature. California courts
extended Allen’s holding in the SVP (People v. Leonard (2000)
78 Cal.App.4th 776, 792−793) and OMHD commitment
9
In addition to short-term holds for intensive treatment
and one-year conservatorships, the LPS Act provides for
commitments up to 180 days for individuals who present a
substantial risk of physical harm to others as a result of a
mental health disorder. (Welf. & Inst. Code, § 5300.)
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Opinion of the Court by Corrigan, J.
contexts. (People v. Clark (2000) 82 Cal.App.4th 1072, 1081–
1082; People v. Merfeld (1997) 57 Cal.App.4th 1440, 1446).
These courts reasoned that the proceedings were designed only
to determine the subjects’ status, including the potential for
danger and need of mental health treatment, and that their
testimony offered reliable evidence on these issues. (See Clark,
at p. 1082; Leonard, at pp. 792−793.)
In recognition of this precedent, appellant does not claim
he is entitled to refuse to testify as a matter of constitutional
right. (See Hudec, supra, 60 Cal.4th at p. 819.) Instead, he
argues equal protection principles require that he be extended
the same statutory right not to testify that applies for NGI
extended commitment proceedings. “[W]hen certain due process
protections for those civilly committed are guaranteed by
statute, even if not constitutionally required, the denial of those
protections to one group must be reasonably justified in order to
pass muster under the equal protection clause.” (McKee, supra,47 Cal.4th at p. 1207.) Before turning to appellant’s equal
protection claim, we discuss the origins and applications of this
statutory right.
C. Statutory Right Against Compelled Testimony in
Commitment Proceedings Connected to a Criminal Case
The statutory right against compelled testimony in an
NGI extension proceeding is found in Penal Code section 1026.5,
subdivision (b)(7). The history of its enactment is informative.
Before 1978, criminal defendants who successfully
asserted an insanity defense were most often committed to a
state hospital or other facility indefinitely and could be released
only if they proved their sanity had been restored. (Pen. Code,
former §§ 1026, 1026a; see In re Moye (1978) 22 Cal.3d 457, 461
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(Moye).)10 The NGI commitment scheme was substantially
altered thereafter in response to a series of decisions from this
court.
In companion cases dealing with the since-repealed
Mentally Disordered Sex Offender (MDSO) law (Welf. & Inst.
Code, former § 6300 et seq.), People v. Burnick (1975) 14 Cal.3d
310, 318 held that due process required the offender’s status to
be proven beyond a reasonable doubt. People v. Feagley (1975)
14 Cal.3d 338, 349−352, 375−376 recognized the right to a
unanimous jury verdict and disapproved indefinite
commitments. In 1977, the Legislature amended the former
MDSO statutes to codify these holdings. (See Moye, supra, 22
Cal.3d at p. 464.) The revised statutes provided for renewable
annual commitments once the maximum allowable
incarceration term had expired. (Welf. & Inst. Code, former
§§ 6316.1, 6316.2, subds. (a), (h).) The statutes also provided for
counsel, discovery, and a jury trial. (Welf. & Inst. Code, former
§ 6316.2, subds. (d), (e); see Hudec, supra, 60 Cal.4th at p. 821.)
One provision gave MDSO’s the constitutional rights applicable
in criminal trials. (Welf. & Inst. Code, former § 6316.2,
subd. (e).) The following year, Moye concluded equal protection
principles required that initial NGI commitments likewise be
limited to the maximum term applicable to the underlying
criminal offense. (Moye, at p. 467.)
As with the MDSO decisions, the Legislature codified the
Moye holding. (See Sen. Com. on Judiciary, Analysis of Sen. Bill
No. 1022 (1979–1980 Reg. Sess.) as amended Apr. 30, 1979, p. 2;
10
Indefinite commitments for outpatient treatment could
also be ordered under certain circumstances. (See Pen. Code,
former § 1026.1; Moye, supra, 22 Cal.3d at p. 461.)
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Opinion of the Court by Corrigan, J.
Hudec, supra, 60 Cal.4th at p. 821.) Penal Code, section 1026.5,
enacted in 1979, limits initial NGI commitments to the longest
available term of imprisonment for the underlying offense. The
commitment may be extended by renewable two-year terms if a
“mental disease, defect, or disorder” renders the person a
substantial risk of physical harm to others. (Pen. Code,
§ 1026.5, subd. (b)(1); see id., subd. (b)(8), (10).) Mirroring the
former MDSO statutes, Penal Code section 1026.5 provides for
counsel, discovery, and jury trial rights. (Id., subd. (b)(3), (4).)
Significantly, the statute also declares: “The person shall be
entitled to the rights guaranteed under the federal and State
Constitutions for criminal proceedings. All proceedings shall be
in accordance with applicable constitutional guarantees.” (Id.,
subd. (b)(7).) In quasi-civil commitment trials, the statute
effectively confers many of the rights available by constitutional
mandate in criminal proceedings.11
Hudec, supra, 60 Cal.4th 815 considered the scope of this
statutory language. Appellant Hudec acknowledged that the
trial to extend his NGI commitment was civil in nature, and
thus he had no constitutional right to refuse to testify. (Id. at
p. 819.) Nevertheless, he argued Penal Code section 1026.5,
subdivision (b)(7) granted him this statutory right. (Hudec, at
pp. 819−820.) We agreed. (Id. at p. 826.) Although not every
constitutional right from the criminal context can be sensibly
11
The distinction primarily impacts the applicable standard
of review. Constitutional errors require reversal if there is a
reasonable possibility they affected the verdict (Chapman v.
California (1967) 386 U.S. 18, 23–24), whereas state law errors
require reversal only if it is reasonably probable a different
result would have been reached absent the error (People v.
Watson (1956) 46 Cal.2d 818, 837).
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imported into civil proceedings, Hudec concluded no
inconsistency or absurdity would result from recognizing a right
against compelled testimony in NGI commitment extension
trials. (Id. at p. 829.) Because the commitment extension would
typically be supported by other evidence (see, e.g., People v.
Haynie (2004) 116 Cal.App.4th 1224, 1227), NGI commitments
could be extended even if the respondent declined to testify.
(Hudec, at p. 829.) Hudec acknowledged that recognizing this
right would sometimes exclude relevant evidence and that the
ability to hear and observe the person’s testimony can assist the
fact finder’s assessment of mental state. (See id. at
pp. 829−830.) However, “[g]ranting that trial accuracy
considerations arguably support compelling a committee’s
testimony,” the court concluded, “other considerations,” such as
fairness, “militat[ed] against such compulsion.” (Id. at p. 830.)12
After Hudec, a number of Court of Appeal decisions
considered whether equal protection required extending the
statutory right against compelled testimony to offenders facing
postconviction treatment under other commitment schemes.
These courts uniformly extended the right in SVP and OMHD
contexts. (See People v. Flint (2018) 22 Cal.App.5th 983, 989
(Flint) [SVP]; People v. Alsafar (2017) 8 Cal.App.5th 880,
12
Hudec discussed varying approaches taken in the Courts
of Appeal grappling with just how broadly Penal Code
section 1026.5, subdivision (b)(7) should be interpreted to
sweep. It rejected cases employing an overly narrow
interpretation but acknowledged that an application leading to
absurd consequences could not have been what the Legislature
intended. (See Hudec, supra, 60 Cal.4th at pp. 826–830.) Hudec
did not attempt to plumb the depths of the question, limiting its
analysis to the right against compelled testimony. We do the
same.
16
Conservatorship of ERIC B.
Opinion of the Court by Corrigan, J.
882−883 [OMHD]; People v. Field (2016) 1 Cal.App.5th 174,
193−194 [SVP]; People v. Dunley (2016) 247 Cal.App.4th 1438,
1450 [OMHD]; People v. Landau (2016) 246 Cal.App.4th 850,
865 [SVP]; People v. Curlee (2015) 237 Cal.App.4th 709, 720
(Curlee) [SVP].) While recognizing differences between the
statutory schemes, these courts concluded the differences were
not dispositive. (See, e.g., Dunley, at pp. 1449−1450.)
Individuals in all three groups had committed criminal acts; all
had been diagnosed with mental health disorders that made
them potentially dangerous to others; and all were subject to
commitment in a state facility for involuntary treatment. (See
Curlee, at p. 720.) Further, the purpose of commitment in all
three statutory schemes was the same: “To protect the public
from those who have committed criminal acts and have mental
disorders and to provide mental health treatment for the
disorders. (See Pen. Code, § 1026.5, subd. (b); McKee[], supra,
47 Cal.4th at pp. 1203, 1207; Moye, supra, 22 Cal.3d at p. 466.)”
(Curlee, at p. 720.)
D. Extending the Statutory Right Against Compelled
Testimony to LPS Commitment Proceedings
The LPS Act does not include a statutory right against
compelled testimony, nor does it contain the broad mention of
rights set out in Penal Code section 1026.5, subdivision (b)(7).
Nevertheless, appellant argues equal protection demands that
the same right to refuse testimony applies.
“Because of the fundamental interests at stake, equal
protection principles are often invoked in civil commitment
cases to ensure that the statutory scheme applicable to a
particular class of persons has not treated them unfairly in
comparison with other groups with similar characteristics.”
(Barrett, supra, 54 Cal.4th at p. 1107.) An equal protection
17
Conservatorship of ERIC B.
Opinion of the Court by Corrigan, J.
analysis has two steps. “ ‘ “The first prerequisite . . . is a
showing that the state has adopted a classification that affects
two or more similarly situated groups in an unequal manner.”
[Citations.] This initial inquiry is not whether persons are
similarly situated for all purposes, but “whether they are
similarly situated for purposes of the law challenged.” ’ ”
(McKee, supra, 47 Cal.4th at p. 1202, some italics added.) If the
groups are similarly situated, the next question is whether the
disparate treatment can be justified by a constitutionally
sufficient state interest. (See id. at pp. 1207−1209; Moye, supra,
22 Cal.3d at pp. 465−466.)
1. The Similarly Situated Prong
Three lower court decisions have addressed whether
traditional LPS conservatees are similarly situated with
individuals facing an extended NGI commitment. Bryan S.,
supra, 42 Cal.App.5th at pages 196−197 concluded they are not,
because a conservatorship may be imposed without any
connection to a crime or any showing of danger to others, and
conservatees may be placed in nonhospital settings.13 The Court
of Appeal decisions here, Conservatorship of E.B. (2020) 45
Cal.App.5th 986 (E.B.), and in Conservatorship of J.Y. (2020) 49
Cal.App.5th 220 disagreed with Bryan S. They concluded
traditional LPS conservatees are similarly situated with those
facing an NGI commitment extension because both are subject
13
Although conservatorship proceedings were initiated after
Bryan S. was found incompetent to stand trial, it appears that
a traditional conservatorship was ultimately imposed because
the trial court ruled “that Bryan was gravely disabled as a result
of a mental disorder and was currently unable to provide for
food, clothing, or shelter.” (Bryan S., supra, 42 Cal.App.5th at
p. 194, italics added.)
18
Conservatorship of ERIC B.
Opinion of the Court by Corrigan, J.
to involuntary confinement that could be extended indefinitely,
and both are committed for the dual purposes of mental health
treatment and public protection. (See J.Y., at pp. 229−231; E.B.,
at pp. 993−994.) We agree with these latter cases that the
groups are similarly situated for purposes of the right not to give
compelled testimony.14
An equal protection analysis typically focuses on the
practical consequences of a challenged law to the groups in
question. In McKee, for example, we concluded SVP’s and
OMHD’s were similarly situated with regard to certain
procedural rights because, despite their differences in other
respects, both had “the same interest at stake — the loss of
liberty through involuntary civil commitment.” (McKee, supra,
47 Cal.4th at p. 1204.) Here, too, the most striking and decisive
similarity between the groups is the potential loss of liberty both
face in the proceedings at issue. Like NGI’s, LPS conservatees
are subject to physical confinement and the loss of many
personal rights. (See Ben C., supra, 40 Cal.4th at p. 540; Roulet,
supra, 23 Cal.3d at p. 223.) Although traditional conservatees
are entitled to be placed in the least restrictive suitable setting
(Welf. & Inst. Code, § 5358, subds. (a), (c)), the LPS statutes
authorize confinement in a residential facility or hospital when
appropriate (see Welf. & Inst. Code, § 5358, subd. (a)(2)). Here,
the Public Guardian’s petition for conservatorship requested
authority to seek this most restrictive placement for appellant.
As noted, institutional placements for LPS conservatees are
14
We consider only the first rationale articulated by E.B.
and J.Y., recognizing that the traditional conservatorships
under consideration here are ordinarily imposed for the
protection of the conservatee, not the public.
19
Conservatorship of ERIC B.
Opinion of the Court by Corrigan, J.
fairly common; so much so that in July 2020 the state auditor
criticized the long wait times LPS conservatees had to endure
before state hospital admission. (State Auditor’s Report, supra,
at pp. 22–26.) Although LPS conservatees occupied around 11
percent of state hospital beds in 2019, the auditor reported that
200 more were waiting for admission and, as a result, receiving
lower levels of care than they needed. (Id. at p. 25.)
The Public Guardian concedes that LPS conservatees are
frequently confined in locked facilities but argues the prevalence
of such commitments is “not surprising” given that
conservatorships are only ordered for individuals who are
unable to care for themselves. The parties do not dispute that
there may be good reasons for such confinements, or that they
may be necessary to provide the care and treatment a
conservatee requires. Both traditional LPS conservatorships
and those relating to criminal proceedings share the goal of
treatment, not punishment. Nonetheless, it cannot be denied
that “civil commitment for any purpose constitutes a significant
deprivation of liberty . . . .” (Addington v. Texas, supra, 441 U.S.
at p. 425; see Blackburn, supra, 61 Cal.4th at p. 1119.) “In
addition to physical restraint, ‘[t]he gravely disabled person for
whom a conservatorship has been established faces the loss of
many other liberties . . . .’ ” (Ben C., supra, 40 Cal.4th at p. 540.)
Apart from their possible confinement, conservatees may lose
the rights to drive, vote, enter contracts, and make decisions
about their treatment. (See Welf. & Inst. Code, § 5357.) In light
of the potential for such a significant loss of liberty,
conservatorship cases are governed by many of the same
procedural protections that apply in criminal trials. (See Welf.
& Inst. Code, § 5350, subd. (d)(1); Ben C., at p. 541; but see Ben
C., at p. 538 [recognizing “that the analogy between criminal
20
Conservatorship of ERIC B.
Opinion of the Court by Corrigan, J.
proceedings and proceedings under the LPS Act is imperfect at
best” and that “not all of the safeguards required in the former
are appropriate to the latter”]; Susan T., supra, 8 Cal.4th at
p. 1015 [holding the exclusionary rule does not apply in
conservatorship proceedings].)
Moreover, a year-long conservatorship may be extended
through the filing of successive petitions. (Welf. & Inst. Code,
§ 5361.) As a result, the LPS statutes can “assure in many cases
an unbroken and indefinite period of state-sanctioned
confinement.” (Roulet, supra, 23 Cal.3d at p. 224.) In San
Francisco, for example, almost 38 percent of LPS
conservatorships, excluding Murphy conservatorships, had been
extended for 10 years or more as of December 2018. (San
Francisco Analyst’s Report, supra, at p. A-9.) An additional 23
percent had been extended from five to 10 years. (Ibid.) Thus,
in practice, traditional LPS conservatorships can impose
substantially the same restraint on liberty as involuntary
commitments connected to criminal proceedings.
To be sure, traditional LPS conservatees differ in certain
respects from civilly committed NGI’s. The latter are adjudged
to have committed a criminal actus reus but are found not guilty
because their insanity negates the required mens rea. (See
Moye, supra, 22 Cal.3d at p. 466.) While those confined as an
SVP or OMHD have been convicted of crimes, most
conservatorships are not based on criminal allegations. LPS
conservatorships are ordinarily imposed solely because a mental
illness prevents the conservatee from providing for basic
survival needs. (See Welf. & Inst. Code, §§ 5008, subd. (h)(1)(A),
5350.) For these individuals, “ ‘[t]he commitment is not
initiated in response, or necessarily related, to any criminal acts
. . . .’ ” (Susan T., supra, 8 Cal.4th at p. 1015.) Murphy
21
Conservatorship of ERIC B.
Opinion of the Court by Corrigan, J.
conservatorships bear a much closer resemblance to NGI
commitments in this regard. Murphy conservatees have been
charged with serious felonies involving actual or threatened
physical harm (Welf. & Inst. Code, § 5008, subd. (h)(1)(B)(i)–
(ii)), and, unlike the traditional LPS conservatees at issue in this
case, their dangerousness to others is assessed in determining
whether a conservatorship is necessary (see id.,
subd. (h)(1)(B)(iv)). Murphy conservatorships are
comparatively rare, however, accounting for only around 2
percent of all LPS conservatorships in San Francisco, for
example. (See San Francisco Analyst’s Report, supra, at p. A-
11.)
It is “incontrovertible” that conservatees “do not share
identical characteristics” with civilly committed NGI’s. (McKee,
supra, 47 Cal.4th at p. 1203.) But these differences are not
dispositive of whether the groups are similarly situated with
respect to the testimonial privilege. (See ibid.) In this part of
an equal protection analysis, the question “ ‘ “is not whether
persons are similarly situated for all purposes, but ‘whether
they are similarly situated for purposes of the law
challenged.’ ” ’ ” (People v. Valencia (2017) 3 Cal.5th 347, 376,
italics added.) “In other words, we ask at the threshold whether
two classes that are different in some respects are sufficiently
similar with respect to the laws in question to require the
government to justify its differential treatment of these classes
under those laws.” (McKee, at p. 1202.)15 In some cases, we
15
Because an equal protection analysis considers whether
groups are similarly situated with respect to a particular law,
cases cited by the Public Guardian holding that conservatees or
NGI’s are not similarly situated with other civilly committed
22
Conservatorship of ERIC B.
Opinion of the Court by Corrigan, J.
have concluded traditional LPS conservatees were not
sufficiently similar to other groups in regard to a challenged law.
For example, in Cooley v. Superior Court (2002) 29 Cal.4th 228,
253−254, we concluded individuals facing an SVP probable
cause hearing were not similarly situated with those seeking
habeas review of a short-term detention under the LPS Act
because the purposes served by the standard of proof at the LPS
hearing had no rational application in the SVP context. Here,
however, we reach a different conclusion.
In rejecting the same equal protection challenge raised
here, the Bryan S. court considered the purpose served by the
testimonial privilege. It reached back to Cramer, supra, 23
Cal.3d 131, where we held the constitutional privilege does not
apply in civil commitment proceedings. Cramer explained that
“the historic purpose of the privilege against being called as a
witness has been to assure that the criminal justice system
remains accusatorial, not inquisitorial. [Citations.] The
extension of the privilege to an area outside the criminal justice
system . . . would contravene both the language and purpose of
the privilege.” (Id. at pp. 137−138; see Bryan S., supra, 42
Cal.App.5th at p. 197.) After Cramer was decided, however, the
Legislature chose to extend the privilege beyond the criminal
justice system by enacting Penal Code section 1026.5,
subdivision (b)(7). We observed in Hudec that “Cramer’s
constitutional reasoning ha[d] no bearing on the interpretation
of” Penal Code section 1026.5, subdivision (b)(7). (Hudec, supra,
60 Cal.4th at p. 830.) It is likewise inapt to the equal protection
challenge here. The issue is not whether traditional LPS
groups for purposes other than the testimonial privilege shed
little light on the issue here.
23
Conservatorship of ERIC B.
Opinion of the Court by Corrigan, J.
conservatees are similar to criminal defendants, but whether
they are similar to NGI’s. Like these conservatees, NGI’s no
longer stand accused of crimes. And, like conservatorships, NGI
extension proceedings are civil in nature and examine only
whether the statutory grounds for commitment have been met.
(See Hudec, at p. 819.)
The more precise similarity question, then, is what
purpose does the testimonial privilege serve in civil commitment
proceedings? Hudec offers one answer. Hudec acknowledged
that testimony from those facing commitment may be
particularly helpful in determining their mental condition but
noted that “other considerations” might weigh against
compelling their testimony, “notably ‘our sense of fair play
which dictates “a fair state-individual balance by requiring the
government . . . in its contest with the individual to shoulder the
entire load.” ’ (Murphy v. Waterfront Comm’n. (1964) 378 U.S.
52, 55.)” (Hudec, supra, 60 Cal.4th at p. 830.) “The right to not
be compelled to testify against oneself is clearly and relevantly
implicated when a person is called by the state to testify in a
proceeding to [commit or] recommit him or her even if what is
said on the witness stand is not per se incriminating.” (People
v. Haynie, supra, 116 Cal.App.4th at p. 1230.) The privilege’s
role in enforcing fair play, and ensuring the government meets
its burden, is not unique to the criminal context. Like NGI’s,
traditional LPS conservatees also face the prospect of extended
involuntary confinement and the loss of other liberties.
In reaching a different conclusion, the trial court here
cited the importance of allowing the trier of fact to observe the
“physical and mental characteristics” of the proposed
conservatee. Compelled testimony from the conservatee may
well assist the fact finder and contribute to more accurate
24
Conservatorship of ERIC B.
Opinion of the Court by Corrigan, J.
verdicts in conservatorship trials. (See Cramer, supra, 23
Cal.3d at p. 139; Baber, supra, 153 Cal.App.3d at p. 550.)16 It
might also be argued that the predicates for traditional LPS and
NGI commitments are significantly different. Most of those for
whom an LPS conservatorship is sought will not have been
subject to a criminal adjudication or any showing that they pose
a danger to others. As a result, they will not have undergone
the kinds of extended restraints on liberty and resultant
therapeutic and rehabilitative efforts extended to NGI, SVP,
and OMHD individuals. While we acknowledge these
differences and note that they may bear on whether the
disparate treatment of traditional LPS conservatees and NGI’s
is constitutionally justified, they are not sufficient to undermine
the two groups’ similarity for purposes of the testimonial
privilege.
Accordingly, despite their differences, we conclude NGI’s
and traditional LPS conservatees “are sufficiently similar to
bring into play equal protection principles that require a court
to determine ‘ “whether distinctions between the two groups
justify the unequal treatment.” ’ (People v. Hofsheier (2006) 37
Cal.4th 1185, 1200.)” (In re Marriage Cases (2008) 43 Cal.4th
757, 832, fn. 54.) Conservatorship of Bryan S., supra, 42
Cal.App.5th 190 is disapproved to the extent it conflicts with the
views expressed herein.
16
Of course, even if it is ultimately determined that equal
protection requires extending the statutory right against
compelled testimony to LPS conservatorship trials, a question
we do not reach here, recognition of that right would not
preclude testimony from other competent witnesses or the
admission of relevant documents bearing on grave disability.
25
Conservatorship of ERIC B.
Opinion of the Court by Corrigan, J.
2. Justification for Disparate Treatment
The next step of an equal protection analysis asks whether
the disparate treatment of two similarly situated groups is
justified by a constitutionally sufficient state interest. (See
McKee, supra, 47 Cal.4th at pp. 1207−1208.) Varying levels of
judicial scrutiny apply depending on the type of claim. “[M]ost
legislation is tested only to determine if the challenged
classification bears a rational relationship to a legitimate state
purpose.” (People v. Hofsheier, supra, 37 Cal.4th at p. 1200.)
However, differences “in statutes that involve suspect
classifications or touch upon fundamental interests are subject
to strict scrutiny, and can be sustained only if they are necessary
to achieve a compelling state interest.” (Ibid.)
Decisions from the Courts of Appeal have reached
differing conclusions about the level of scrutiny appropriate for
assessing claims of disparate treatment in civil commitments.
(Compare Flint, supra, 22 Cal.App.5th at pp. 992−993 [strict
scrutiny] with People v. Nolasco (2021) 67 Cal.App.5th 209, 225
[rational basis].) Because the courts below did not reach this
prong of the equal protection analysis, arguments have not been
well developed here concerning the proper degree of scrutiny or
whether the government can demonstrate a sufficient
justification for granting the testimonial privilege to NGI’s but
not traditional LPS conservatees.
Ordinarily, we would remand to the trial court for a
hearing at which the Public Guardian would have an
opportunity to show why the differential treatment is
constitutionally justified. (See McKee, supra, 47 Cal.4th at
pp. 1207−1209; see also Curlee, supra, 237 Cal.App.4th at
p. 722.) However, the Court of Appeal determined the error in
26
Conservatorship of ERIC B.
Opinion of the Court by Corrigan, J.
this case was harmless under either the state (People v. Watson,
supra, 46 Cal.2d at p. 836) or federal (Chapman v. California,
supra, 386 U.S. at. p. 24) standard for harmless error. The court
observed that, apart from appellant’s testimony, “two other
witnesses who were familiar with appellant . . . painted a vivid
picture of someone who was unable to care for himself left to his
own devices due to his mental illness.” (E.B., supra, 45
Cal.App.5th at p. 999.) Appellant does not challenge that
conclusion. Accordingly, although we have concluded
traditional LPS conservatees are similarly situated with NGI’s
for purposes of the right against compelled testimony, a remand
is not appropriate here. Whether the government can justify its
differential treatment of traditional conservatees with regard to
this right must await decision in another case.
27
Conservatorship of ERIC B.
Opinion of the Court by Corrigan, J.
III. DISPOSITION
We affirm the judgment of the Court of Appeal.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
MOORE, J.*
*
Associate Justice of the Court of Appeal, Fourth Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
28
Conservatorship of ERIC B.
S261812
Concurring Opinion by Justice Kruger
This case involves a federal equal protection challenge to
the statutory procedures for establishing conservatorships for
persons with grave disabilities. Eric B., a potential conservatee,
argues the statute is unconstitutional because it contains no
right to refuse to testify akin to the statutory right enjoyed by
NGI’s (that is, persons found not guilty of a crime by reason of
insanity) in commitment extension proceedings. (Compare
Welf. & Inst. Code, § 5350, subd. (d)(1), (2) with Pen. Code,
§ 1026.5, subd. (b)(7).) But the question now before this court is
not the ultimate question whether this difference in treatment
is constitutional. Rather, the sole question before us concerns a
threshold inquiry: Whether potential conservatees are
sufficiently similarly situated to NGI’s, for purposes of the
challenged law, to warrant further inquiry into whether the
differential treatment violates equal protection. The court
answers yes. (Maj. opn., ante, at pp. 1, 25.) I agree with this
limited holding and have signed the court’s opinion.
I write separately, however, to suggest that this threshold
inquiry doesn’t serve much purpose. Worse, it risks harm. The
simple fact that a law differently benefits or burdens two
identifiable groups is — or at least ought to be — sufficient
reason for us to examine whether the difference in treatment is
consistent with equal protection. To the extent our cases have
taken a different approach, it is probably time to reevaluate.
1
Conservatorship of ERIC B.
Kruger, J., concurring
I.
In answering the question before us, the court’s opinion
describes a two-step approach for analyzing equal protection
challenges. “ ‘ “ ‘The first prerequisite . . . is a showing that the
state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.’ [Citations.]
This initial inquiry is not whether persons are similarly situated
for all purposes, but ‘whether they are similarly situated for
purposes of the law challenged.’ ” ’ ([People v. ]McKee[ (2010)] 47
Cal.4th [1172,] 1202, some italics added.) If the groups are
similarly situated, the next question is whether the disparate
treatment can be justified by a constitutionally sufficient state
interest. (See id. at pp. 1207−1209; [In re ]Moye[ (1978)] 22
Cal.3d [457,] 465−466.)” (Maj. opn., ante, at p. 18.) In other
words: (1) Are the parties sufficiently similarly situated to call
for further inquiry? If no, the analysis is done. But (2) if yes,
can the challenged disparity be justified? At the second step, we
employ the familiar tiered system of scrutiny to determine the
amount of justification required. We apply the most lenient
standard — so-called rational basis review — to most forms of
differential treatment; we apply more searching scrutiny to, and
thus require greater justification for, differential treatment that
either infringes on a fundamental right or is based on a suspect
or quasi-suspect classification, such as race or sex. (People v.
Chatman (2018) 4 Cal.5th 277, 288–289.)
This is the approach set out in many — though not all —
of our recent equal protection cases. Both parties assume it
applies here, as did the Court of Appeal in this case, and as have
many other California courts addressing similar questions.
Whether the approach makes sense is a different matter.
2
Conservatorship of ERIC B.
Kruger, J., concurring
A.
This two-step approach is not how equal protection
analysis was always done in California. This court did often
observe that equal protection requires like treatment for those
“similarly situated with respect to the legitimate purpose of the
law.” (Purdy & Fitzpatrick v. State of California (1969) 71
Cal.2d 566, 578.) But we did not initially use this general
observation about the concept of equal protection as a
springboard for engaging in a threshold inquiry into whether
two groups are similarly situated. We instead described the
relevant constitutional inquiry solely in terms of whether the
challenged difference in treatment was justified under the
applicable standard of scrutiny. (Id. at pp. 578–579; see, e.g., In
re Antazo (1970) 3 Cal.3d 100, 110–111.)
The two-step approach appears to have emerged from two
cases decided in the late 1970’s, both concerning challenges to
statutes governing the treatment of juveniles. In the first case,
In re Roger S. (1977) 19 Cal.3d 921 (Roger S.), a minor objected
to involuntary admission to a state mental hospital on the
application of a parent. He argued that he was denied equal
protection because his admission was not conditioned on a
finding that he was gravely disabled or a danger to himself or
others, as it would have been for an adult or a minor ward of the
court. This court rejected the argument. “ ‘[T]he Constitution,’ ”
we observed, “ ‘does not require things which are different in fact
or opinion to be treated in law as though they were the same.’ ”
(Id. at p. 934, quoting Tigner v. Texas (1940) 310 U.S. 141, 147.)
Given the differences between the liberty interests of children
and adults, we concluded that minors “are not ‘similarly
situated’ with adults for purposes of equal protection analysis.”
(Roger S., at p. 934.) We also found minors like Roger S.
3
Conservatorship of ERIC B.
Kruger, J., concurring
dissimilar from court wards, explaining that courts have options
for the psychiatric treatment of nondangerous minors that
parents may not. The difference in the standards for the
involuntary confinement of the two groups, we held, “does not in
our view deny equal protection to either class.” (Id. at p. 935,
citing, inter alia, Reed v. Reed (1971) 404 U.S. 71, 75–76.)
In the second case, In re Eric J. (1979) 25 Cal.3d 522(Eric J.), this court considered a juvenile’s equal protection
challenge to laws extending more favorable sentencing
treatment to an adult convicted of a crime warranting
imprisonment than to juveniles subject to confinement for
committing the same crime. Rejecting the claim, the court cited
Roger S., supra, 19 Cal.3d at page 934 for the proposition that
the “first prerequisite to a meritorious claim under the equal
protection clause is a showing that the state has adopted a
classification that affects two or more similarly situated groups
in an unequal manner.” (Eric J., at p. 530; see also id. at p. 530,
fn. 1 [quoting, as Roger S. had, Tigner v. Texas, supra, 310 U.S.
at p. 147 for the proposition that “ ‘[t]he Constitution does not
require things which are different in fact or opinion to be treated
in law as though they were the same’ ”].) We went on to conclude
that “because minors and adults are not ‘similarly situated’ with
respect to their interest in liberty,” and because the two groups
“are not confined for the same purposes,” the difference in
treatment did not violate equal protection. (Eric J., at p. 533.)
The two-step framework the court applies today traces
back to this particular gloss on the United States Supreme
Court’s admonition that equal protection “does not require
things which are different in fact or opinion to be treated in law
as though they were the same.” (Tigner v. Texas, supra, 310
U.S. at p. 147.) Of course, it is not clear that either Roger S. or
4
Conservatorship of ERIC B.
Kruger, J., concurring
Eric J. in fact applied anything like the two-step framework;
both cases undertook what was essentially a one-step, holistic
inquiry into whether the challenged differential treatment
violated equal protection. Roger S. looked for support to Reed v.
Reed, supra, 404 U.S. 71, a high court decision that had
evaluated an equal protection challenge to a sex-based
classification by asking whether the classification was justified
in view of the state’s interests (Roger S., supra, 19 Cal.3d at
p. 935); Eric J., in turn, looked to Roger S.
And notwithstanding the language in Eric J. suggesting
the existence of a preliminary “similarly situated” step as a “first
prerequisite” to further inquiry (Eric J., supra, 25 Cal.3d at
p. 530, italics omitted), the cases were not initially understood
as establishing a two-step framework. In a case decided not long
after Eric J., this court considered an equal protection challenge
to a decision limiting a school district election to a certain group
of district residents, while excluding a second group. “The first
step in evaluating this contention,” we explained, “is to
determine the applicable level of judicial review,” rational basis
or heightened scrutiny. (Fullerton Joint Union High School
Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 798
(Fullerton).) We dismissed the notion that Eric J. required a
different order of operations: “Some decisions speak of an initial
constitutional inquiry to determine whether the groups affected
are similarly situated with respect to the purpose of the
legislation or other state action. (See, e.g., In re Eric J.[, supra,]
25 Cal.3d [at p.] 531 [159 Cal.Rptr. 317, 601 P.2d 549].) To ask
whether two groups are similarly situated in this context,
however, is the same as asking whether the distinction between
them can be justified under the appropriate test of equal
protection. Obvious dissimilarities between groups will not
5
Conservatorship of ERIC B.
Kruger, J., concurring
justify a classification which fails strict scrutiny (if that test is
applicable) or lacks a rational relationship to the legislative
purpose.” (Fullerton, at p. 798, fn. 19; accord, People v. Allen
(1986) 42 Cal.3d 1222, 1295 (lead opn.).)
As time went on, however, the language of Eric J. took
precedence over its limiting treatment in Fullerton. Courts
repeatedly invoked Eric J.’s “first prerequisite” language and
rejected equal protection claims on the basis that the two groups
treated differently were insufficiently similar to one another.
(See People v. Williams (1988) 45 Cal.3d 1268, 1330 [“persons
convicted under the death penalty law are manifestly not
similarly situated to persons convicted under the Determinate
Sentencing Act and accordingly cannot assert a meritorious
claim to the ‘benefits’ of the act under the equal protection
clause”], citing Eric J., supra, 25 Cal.3d at p. 530; People v.
Andrews (1989) 49 Cal.3d 200, 223 [citing Eric J. for the
proposition that “the first prerequisite to [an equal protection]
claim is a showing that ‘the state has adopted a classification
that affects two or more similarly situated groups in an unequal
manner’ ” and rejecting equal protection claim]; Coleman v.
Department of Personnel Administration (1991) 52 Cal.3d 1102,
1125 [same]; People v. Massie (1998) 19 Cal.4th 550, 571 [same];
Manduley v. Superior Court (2002) 27 Cal.4th 537, 568–571
[citing Eric J. and rejecting claim on ground the defendant had
not shown unequal treatment of similarly situated groups];
People v. Wutzke (2002) 28 Cal.4th 923, 943–944 [same]; Cooley
v. Superior Court (2002) 29 Cal.4th 228, 253–254 [same].)
The language of Eric J. was repeated from case to case.
Eventually, shorn of context, the language morphed and
hardened to become the first step of the formal two-step inquiry
the court’s opinion recites today. (See, e.g., People v. Hofsheier
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Conservatorship of ERIC B.
Kruger, J., concurring
(2006) 37 Cal.4th 1185, 1199–1200 [detailed analysis of the
similarly situated requirement as a threshold matter
independent of subsequent inquiry into justification]; People v.
McKee, supra, 47 Cal.4th at p. 1202 [treating the similarly
situated inquiry as a necessary “threshold” question]; id. at
pp. 1202–1209 [deciding only that question and remanding for
further proceedings on the separate question of justification].)
Indeed, the court stopped citing Eric J. itself, simply asserting
as a settled matter that the “initial inquiry in any equal
protection analysis is whether persons are ‘similarly situated for
purposes of the law challenged.’ ” (In re Lemanuel C. (2007) 41
Cal.4th 33, 47.) And in some cases, the court has concluded they
are not — a conclusion that has simply ended the equal
protection analysis, without review of the challenged
governmental action under any level of scrutiny. (See, e.g.,
People v. Lewis (2004) 33 Cal.4th 214, 231; Conservatorship of
Ben C. (2007) 40 Cal.4th 529, 543; People v. Salazar (2016) 63
Cal.4th 214, 227; People v. Valencia (2017) 3 Cal.5th 347, 376.)
B.
Although the threshold similarly situated test nominally
has its roots in United States Supreme Court case law, the high
court itself has neither required nor applied any similar
gatekeeping test. Rather, in cases involving challenges to
discrimination between identifiable groups, the court proceeds
directly to the justification step: It identifies the appropriate
level of scrutiny for a particular challenged distinction and then
examines whether the actual or potential justification for that
differentiation is sufficient, without separately analyzing
whether the groups receiving differential treatment are
otherwise similarly situated. (See, e.g., Grutter v. Bollinger
(2003) 539 U.S. 306, 326–343 [determining appropriate level of
7
Conservatorship of ERIC B.
Kruger, J., concurring
scrutiny (strict) and moving directly to a consideration of the
adequacy of the proffered justification]; United States v.
Virginia (1996) 518 U.S. 515, 531–534 [same, applying
intermediate scrutiny]; Cleburne v. Cleburne Living Center, Inc.
(1985) 473 U.S. 432, 439–450 [same, applying rational basis
scrutiny].)
The high court’s cases do make clear that a similarly
situated inquiry has a useful role to play in other kinds of
cases — particularly cases involving so-called “ ‘class of one’ ”
equal protection claims, “where the plaintiff alleges that she has
been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in
treatment.” (Village of Willowbrook v. Olech (2000) 528 U.S.
562, 564.) In such cases, where a plaintiff does not allege that
she has been treated differently because of “membership in a
class or group” (ibid.), a similarly situated inquiry helps identify
whether the plaintiff has suffered differential treatment that
warrants scrutiny under the equal protection clause. (See also
Engquist v. Oregon Dept. of Agriculture (2008) 553 U.S. 591,
601–602 [discussing “class-of-one” claims under Olech].) But in
a case like the one before us, as in many others, the law clearly
treats Eric B. differently from others because of the group —
that is, potential conservatees — to which he belongs. The
critical question is whether that group-based difference in
treatment comports with equal protection principles. In
comparable cases, the high court has proceeded directly to this
critical question, without first attempting to gauge the degree of
similarity between the groups, as California courts have done.
We are, of course, not bound to follow where the United
States Supreme Court leads in matters of state constitutional
law. So if the two-step framework articulated in our cases had
8
Conservatorship of ERIC B.
Kruger, J., concurring
developed as an explication of unique state constitutional
principles, there would be no need to concern ourselves with
whether it comports with United States Supreme Court
guidance. But in elaborating a two-step approach, we’ve never
invoked any special features of the state Constitution’s equal
protection provision. (Cal. Const., art. I, § 7, subd. (a).) To the
contrary, when urged to use that provision to articulate a unique
set of state law specific principles, we’ve declined. (Manduley v.
Superior Court, supra, 27 Cal.4th at p. 572 [rejecting
petitioners’ invitation to rely on state constitutional principles
and “deem[ing]” the “analysis of petitioners’ equal protection
claim under the Fourteenth Amendment to the United States
Constitution also applicable to their equal protection claim
made pursuant to provisions in the California Constitution”];
see, e.g., Johnson v. Department of Justice (2015) 60 Cal.4th 871,
881 [accepting “the high court’s analysis of federal . . . equal
protection principles [as] persuasive for purposes of the state
Constitution”].)
It is true that while the United States Supreme Court has
not used the same two-step approach to analyze federal equal
protection issues, it also has never formally repudiated any such
approach.1 But if we choose to chart a different path, we at least
1
A handful of other jurisdictions have also sometimes
applied some version of a threshold similarly situated inquiry.
(See, e.g., Morrison v. Garraghty (4th Cir. 2001) 239 F.3d 648,
654; Rodriguez v. Lamer (11th Cir. 1995) 60 F.3d 745, 749; T.M.
v. State (Fla.Ct.App. 1997) 689 So.2d 443, 444–445; Miami
County Bd. v. Kanza Rail-Trails (2011) 292 Kan. 285, 315–316
[255 P.3d 1186, 1207]; DuPont v. Commissioner of Correction
(2007) 448 Mass. 389, 399–400, 403, fn. 24 [861 N.E.2d 744,
752–753, 754–755, fn. 24]; Vison Net, Inc. v. Dept. of Revenue
9
Conservatorship of ERIC B.
Kruger, J., concurring
ought to be clear that that’s what we’re doing. Instead, our cases
appear to assume the United States Supreme Court has pointed
us in the direction of the two-step framework. It has not.
C.
Even in this court, this two-step approach is not always
how the equal protection analysis is done — which is to say, we
are not always rigid or consistent in our application of the two-
step framework. In a number of cases, we have analyzed equal
protection questions much as Fullerton had once instructed and
as the United States Supreme Court does regularly: We have
begun by asking not whether two groups are similarly situated
but what level of scrutiny should apply. (See, e.g., Hernandez v.
City of Hanford (2007) 41 Cal.4th 279, 298 [“we begin with the
question of the appropriate equal protection standard applicable
in this case”]; Kasler v. Lockyer (2000) 23 Cal.4th 472, 480 [“we
must address plaintiffs’ equal protection challenge on the
merits, and the threshold question we confront is which
standard of review applies”].) This line of cases has tackled
equal protection questions without requiring the plaintiff to
show, at the first step, that other groups are similarly situated.
(2019) 397 Mont. 118, 124–125 [447 P.3d 1034, 1038]; cf.
Jackson v. Raffensperger (2020) 308 Ga. 736, 741 [843 S.E.2d
576, 581] [applying threshold similarly situated inquiry as
matter of state constitutional law].) That inquiry has not
escaped criticism elsewhere. (See, e.g., State v. Kelsey (2015) 51
Kan.App.2d 819, 830 [356 P.3d 414, 421] (conc. opn. of
Atcheson, J.) [noting that in Kansas — much as in California —
a “potentially dispositive threshold test has crept fog-like into
our cases on little cat feet. It hasn’t a basis in generally accepted
equal protection jurisprudence, and akin to a morning fog, it
obscures the landscape to no particularly useful ends and
conceivably dangerous ones”].)
10
Conservatorship of ERIC B.
Kruger, J., concurring
(See, e.g., People v. Turnage (2012) 55 Cal.4th 62, 74–75;
California Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th
177, 208–211; Warden v. State Bar (1999) 21 Cal.4th 628, 640–
651.)
If we have sometimes done without the two-step approach,
the question arises whether we might always do without, or
whether instead the approach offers some useful assistance to
courts evaluating equal protection challenges like this one. But
on a brief review of the cases decided under this approach, its
utility seems doubtful.
The basic reason is the one Fullerton identified decades
ago: At least as our cases have described the approach, it is not
clear how the threshold similarly situated inquiry differs in any
material way from the ultimate question in a group-based
discrimination case, except that it offers substantially less
guidance about how to answer. That two groups are similarly
situated, or are not similarly situated, with respect to the
purposes of a law is a conclusion one can only reach after
considering the law’s aims and how the differential treatment
relates to those aims. Even then, the issue remains: How
similarly situated, precisely, relative to which aims? These are
questions courts already explore at the justification step, using
the tiers of scrutiny to guide their answers. It is unclear what
purpose is served by asking the same questions, in a
substantially more general way, as part of a separate threshold
step of the analysis.
Our cases have not, of course, treated the two prongs of
the analysis as merely duplicative or interchangeable. But we
have also failed to explain in any meaningful way how the two
prongs should differ from one another. This has led to some
11
Conservatorship of ERIC B.
Kruger, J., concurring
oddities. Take Johnson v. Department of Justice, supra, 60
Cal.4th 871, which overruled an earlier decision finding an
equal protection violation in the statutory requirement that
those convicted of oral copulation with a minor, but not those
convicted of intercourse with the same, register as sex offenders.
(See People v. Hofsheier, supra, 37 Cal.4th 1185.) Hofsheier
found the groups similarly situated and then concluded no
rational basis existed for treating them unequally. Johnson
purported to accept the similarly situated half of Hofsheier’s
analysis, but then concluded that a rational basis existed for
differential treatment because of relevant differences between
the groups. (Johnson, at pp. 882, 884–887.) In other words, the
groups were not similarly situated with respect to the purposes
of the law after all. A reader might be forgiven for experiencing
a sense of whiplash. (See also, e.g., In re C.B. (2018) 6 Cal.5th
118, 134 [in the span of a few paragraphs, assuming that two
groups were similarly situated with respect to the purposes of a
voter initiative and then explaining how “voters rationally could
differentiate” between them because of an interest in cost
savings].)
Employing a framework that contains a potentially
duplicative step carries more risks than just the possibility of
wasted effort or seeming inconsistencies in the analysis. By
adding a step not directly focused on the ultimate question of
justification, we run the risk of mistakenly cutting off
potentially meritorious equal protection claims. Interposing an
unnecessary gatekeeping inquiry always raises the possibility
that the gate will sometimes slam shut, when the gate shouldn’t
have been there in the first place.
At the very least, the two-step framework creates
unnecessary confusion. Because it is a requirement of our own
12
Conservatorship of ERIC B.
Kruger, J., concurring
creation, the threshold similarly situated inquiry comes with no
clear high court guidelines as to its proper application. Nor have
we offered much guidance ourselves. This case illustrates the
kinds of unresolved questions that courts still confront, decades
after the inquiry first emerged in the case law. To decide
whether two groups are similarly situated with respect to the
purpose of a given law, one must define what that purpose is.
But how does one do so when the law’s purpose involves a
balance of considerations (as laws generally do)? Here, the
court’s opinion says one possible purpose for conferring a
privilege against testifying on NGI committees is a sense of fair
play that outweighs the interest in accurate determinations.
(Maj. opn., ante, at p. 24, citing Hudec v. Superior Court (2015)
60 Cal.4th 815, 830.) The court then assesses whether
Lanterman-Petris-Short committees are similarly situated for
purposes of the fair-play interest (maj. opn., ante, at p. 24),
without considering whether they are also similarly situated
with respect to the countervailing interest in accurate
determinations. Should the inquiry consider one, or the other,
or both? It seems impossible to say without knowing what the
similarly situated test is meant to achieve. The case law yields
no clear answers.
The way the court’s opinion tackles the inquiry is by no
means wrong; the point is only that the inquiry itself injects
unnecessary uncertainty into the law. That uncertainty might
be worth clearing up if the similarly situated test added
sufficient value. I doubt that it does.
13
Conservatorship of ERIC B.
Kruger, J., concurring
II.
All that said, this is not the case in which to reexamine
our equal protection framework. The parties have not raised
any question about that framework here; instead, in reliance on
our current case law, they have focused entirely on the proper
application of the similarly situated step some cases have told
them is necessary. The Court of Appeal decision likewise
focused only on that step, and then, without resolving whether
any different treatment would have been justified, found any
potential constitutional error harmless under the circumstances
of the case. And — as we already knew when we granted
review — this case is moot, so it does not make sense to press
the issue further. Finally, I agree that the choice of framework
would not be outcome-determinative in any event: Given our
conclusion that potential conservatees and NGI’s are
sufficiently similarly situated to warrant further scrutiny, if this
case were to proceed, the government would be required to come
forward with a sufficient justification, just as it would if we were
to proceed directly to the justification inquiry.
For all these reasons, in today’s case it makes little
difference that we have occupied ourselves with a threshold
inquiry into whether two groups are similarly situated. So long
as we continue to employ this framework, that is presumably
how it should be; the threshold similarly situated test should not
cut off inquiry into the core question, whether an admitted
difference in treatment of two groups is justified under the law.
But going forward, it is unclear why we should hold on to a legal
test that serves so little purpose. In an appropriate future case,
14
Conservatorship of ERIC B.
Kruger, J., concurring
we ought to consider whether it is time to let the similarly
situated test go.
KRUGER, J.
We Concur:
LIU, J.
GROBAN, J.
15
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Conservatorship of Eric B.
__________________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 45 Cal.App.5th 986Review Granted (unpublished)
Rehearing Granted
__________________________________________________________________
Opinion No. S261812
Date Filed: April 28, 2022
__________________________________________________________________
Court: Superior
County: Contra Costa
Judge: Susanne M. Fenstermacher
__________________________________________________________________
Counsel:
Jeremy T. Price, under appointment by the Supreme Court, for
Objector and Appellant.
Kim Pederson and Anne Hadreas for Disability Rights California,
California Association of Mental Health Patients’ Rights Advocates,
California Public Defenders Association, American Civil Liberties
Union, American Civil Liberties Union of Northern California,
Disability Rights Education and Defense Fund, Law Foundation of
Silicon Valley and Mental Health Advocacy Services as Amici Curiae
on behalf of Objector and Appellant.
Sharon L. Anderson and Mary Ann McNett Mason, County Counsel,
Steven Rettig, Assistant County Counsel, and Patrick L. Hurley,
Deputy County Counsel, for Petitioner and Respondent.
Jennifer B. Henning for the California State Association of Counties
and California State Association of Public Administrators, Public
Guardians, and Public Conservators as Amici Curiae on behalf of
Petitioner and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Jeremy T. Price
First District Appellate Project
475 14th Street #650
Oakland, CA 94612
(415) 495-3119
Patrick L. Hurley
Deputy County Counsel
1025 Escobar Street, 3rd Floor
Martinez, CA 94553
(925) 655-2251