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SHORT FOUNDATION LEGAL CENTER, INC. Christopher A. Olsen, SBN 236928 H.L. Roy Short, SBN 042665 P.O. Box 3785 San Diego, California 92163 Telephone 1: (619) 297-3944 Telephone 2: (619) 754-9492 Attorneys for Proposed Conservatee Janet Gerber

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO In Re The Conservatorship of the Person of JANET GERBER, Conservatee ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) M.H. 101-136 CONSERVATEES TRIAL BRIEF

Trial Date: Time: Dept.:

September 7, 2010 9:00 a.m. 25

I.

INTRODUCTION The County of San Diego (County) seeks to reinstate an involuntary conservatorship of

one year over Conservatee Janet Gerber. The County contends that Mrs. Gerber suffers from a mental illness that undermines her ability to meet her basic needs for food, clothing, and shelter. Mrs. Gerber, however, contends she can provide for her basic needs of food, clothing, and shelter, and that she should be free to live her life as she sees fit. II. THE ONLY ISSUE FOR TRIAL: IF MRS. GERBER IS PRESENTLY GRAVELY

DISABLED This trial presents only one issue for the jury to decide: if Mrs. Gerber is presently gravely disabled. Welfare & Institutions Code, section 5008, subdivision (h)(1)(A) defines grave

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disability as "a condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter." A finding of grave disability is proper only where the conservatee is presently unable to provide for his or her food, clothing, or shelter. Conservatorship of Murphy (1982) 134 Cal.App.3d 15, 19. It is improper for the jury to find the conservatee gravely disabled based only on the perceived likelihood or possibility the conservatee at some time in the future would be unable to provide for his or her basic needs. Id. 18-19 (reversible error to find conservatee gravely disabled based on experts speculation that, although no facts show conservatee was gravely disabled during trial, he may at some time in the future be unable to meet basic needs for food, clothing, or shelter.) III. THE EVIDENTIARY STANDARD: BEYOND A REASONABLE DOUBT AND

UNANIMOUS JURY To justify an establishment or renewal of involuntary conservatorship, the County must prove Mrs. Gerber is presently gravely disabled beyond a reasonable doubt. Conservatorship of Johnson (1991) 235 Cal.App.3d 693, 696; Conservatorship of Pollock (1989) 208 Cal.App.3d 1406, 1411. The Due Process Clause requires that proof beyond a reasonable doubt and a unanimous verdict be applied to conservatorship proceedings as set forth in the LantermanPetris-Short Act. Estate of Roulet (1979) 23 Cal.3d 219, 226; Conservatorship of Kevin M. (1996) 49 Cal.App.4th 79, 84 (citing Roulet and Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1008-1009). That due process requires proof beyond a reasonable doubt and a unanimous verdict is not surprising when viewed with the consequences of such a finding. The appointment of a conservatorship and the conservatee's subsequent confinement in a mental hospital deprives the conservatee of basic freedoms and places a lasting stigma on the conservatee's reputation. Estate of Roulet, supra, 23 Cal.3d at 223. Those individuals confined to state hospitals face serious restrictions on their freedom. Id. at 224. Although involuntary confinement via a conservatorship carries the good intentions to assist an incapable person to meet the persons basic needs, it is still involuntary confinement. As stated by Justice Brandeis: The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Id. at 225

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(citing Olmstead v. United States (1928) 277 U.S. 438, 479.) It necessarily follows that the conservatees protection ultimately must rest on requiring the state the match its good intentions with proof beyond a reasonable doubt that [conservatee] is in need of the states care. Estate of Roulet, supra, 23 Cal.3d at 225- 226. IV. FACTS THAT DO NOT SHOW PRESENTLY GRAVELY DISABLED A person is not gravely disabled simply because he or she wishes to refuse treatment or disagrees with the states assertion the person is presently gravely disabled. Reise v. St. Marys Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1318. As detailed in Reise, important policy considerations support this rule: It is one of the cardinal principles of LPS that mental patients may not be presumed incompetent solely because of their hospitalization. As stated in section 5331, "No person may be presumed to be incompetent because he or she has been evaluated or treated for mental disorder ... regardless of whether such evaluation or treatment was voluntarily or involuntarily received. [fn Citation Omitted] Similarly, section 5326.5, subdivision (d), which is part of a section defining the written consent required in certain circumstances, reiterates the basic idea that: "[a] person confined shall not be deemed incapable of refusal [of proposed therapy] solely by virtue of being diagnosed as a mentally ill, disordered, abnormal, or mentally defective person." [fn Citation Omitted] Provisions such as section 5331 and subdivision (d) of section 5326.5 refer to a legal standard of competence and are in accord with other states' laws. (E.g., Rivers v. Katz (1986) 67 N.Y.2d 485 [504 N.Y.S.2d 74, 495 N.E.2d 337, 342]; Goedecke v. State, Dept. of Institutions (1979) 198 Colo. 407 [603 P.2d 123, 125]; In re K.K.B. (Okla. 1980) 609 P.2d 747, 749; Rogers v. Com'r of Dept. of Mental Health (1983) 390 Mass. 489 [458 1316*1316 N.E.2d 308, 314]; Kemna, supra, 6 J.Legal Med. at p. 117, fn. 75; Plotkin, supra, 72 Nw.U.L.Rev. at pp. 489, 490.)

Reise, surpa, 209 Cal.App.3d at 1315-1316. Moreover, a proposed conservatee need not directly provide for his or her basic needs of food, clothing, or shelter. For example, a person is not presently gravely disabled where he or she has the help of willing and responsible family members or friends. Conservatorship of Davis (1981) 124 Cal.App.3d 313, 321 (a person is not "gravely disabled" within the meaning of section 5008, subdivision (h)(1) if he or she is capable of surviving safely in freedom with the help of willing and responsible family members, friends or third parties.)

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Finally, the fact that the proposed conservatee occasionally displays bizarre behavior, and foregoes income and shelter, is not enough to determine the proposed conservatee is presently gravely disabled. In Conservatorship of Smith, for example, the proposed conservatee, Elise Smith, maintained a vigil outside a particular church and occasionally interrupted services. 187 Cal.App.3d 903, 906. Ms. Smith had no fixed income and no home address. Id. (Emphasis added.) Ms. Smith went so far as to state she rejected income and shelter due to her reading of the bible. Id. at 908. Despite this behavior, the First District Court of Appeals, Division 5 determined she was not presently gravely disabled because no evidence was presented to show she was unable to carry out the transactions necessary to her survival and that she accepts offers of food and money from friends and relatives. Id. at 910. V. FACTS THAT MAY SHOW PROPOSED CONSERVATEE IS PRESENTLY

GRAVELY DISABLED A proposed conservatee may be found presently gravely disabled where he or she lacks insight into his or her mental illness and would not accept help for his or her basic needs. Conservatorship of Law (1988) 202 Cal.App.3d 1336, 1341. Although simply suffering from a mental illness is not sufficient to prove beyond a reasonable doubt a person is presently gravely disabled, proof that their illness precludes them from meeting his or her basic needs is sufficient. Welfare & Inst. Code, 5008; Conservatorship of Law, supra, 202 Cal.App.3d at 1341. VI. BASIC TRIAL ISSUES AND PROCEDURE a. Conservatees Right Not to Testify The proposed conservatee has no constitutional right to refuse to testify at her trial. Conservatorship of Mitchell (1981) 111 Cal.App.3d 606, 612. b. Verdict of Not Gravely Disabled A finding of presently gravely disabled requires a unanimous jury. But a verdict of not presently gravely disabled requires a vote of nine jurors or more. Conservatorship of Rodney M. (1996) 50 Cal.App.3d 1266, 1271-1272. Without either a unanimous finding of presently gravely disabled, or a vote of 9 jurors for not presently gravely disabled, a mistrial results. c. Level of Conservatorship Placement Hearing

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It is the Courts responsibility, should a finding of grave disability be reached, to determine if a conservator should be appointed, and if so, who the conservator should be, what legal disability should be imposed, and the least restrictive placement of the conservatee. The conservatee is entitled to a hearing on if a conservator should be appointed and who the conservator should be. Conservatorship of Walker (1989) 206 Cal.App.3d 1572 The conservatee is also entitled to be present and participate at a hearing on the disabilities the Court chooses to impose. Conservatorship of Christopher A. (2006) 139 Cal.App.4th 604. The burden of evidence for imposing the disabilities is beyond a reasonable doubt.

Dated: September 7, 2010

Respectfully submitted,

By:__________________________ SHORT FOUNDATION LEGAL CENTER, INC Christopher A. Olsen Attorney for JANET GERBER

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-1SUPPORTING DECLARATION OF GREGG LANDER REGARDING ADDITIONAL SPECIALLY PREPARED INTERROGATORIES

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