Katz v. Superior Court
| Citation | 141 Cal.Rptr. 234,73 Cal.App.3d 952 |
| Parties | Jacqueline KATZ et al., Petitioners, v. The SUPERIOR COURT OF the state of California for the CITY AND COUNTY OF SAN FRANCISCO, Respondent; Carl KATZ and Louise Katz et al., Respondents and Real Parties in Interest. Civ. 41045. |
| Decision Date | 06 October 1977 |
| Court | California Court of Appeals Court of Appeals |
Baker & De Ome, Ralph L. Baker, Oakland, Goorjian & McCabe, Paul Mike Goorjian, Friedman & Sloan, Stanley J. Friedman, Howard, Prim, Rice, Nemerovski, Canady & Pollak, Jerome B. Falk, Jr., Ann V. Brick, San Francisco, for petitioners; Margaret C. Crosby, Joseph Remcho, San Francisco, of counsel.
Shapiro, Shapiro & Shapiro, Carl B. Shapiro, San Anselmo, for real parties in interest.
Charles C. Marson, Margaret C. Crosby, Alan L. Schlosser, American Civil Liberties Union Foundation of Northern Cal., Inc., San Francisco, for amicus curiae.
The proceedings reviewed below were instituted in this court on March 25, 1977, by a petition for extraordinary relief in the nature of prohibition and mandamus filed on behalf of five adults who were each the subject of a substantially identical order appointing a parent or both parents as temporary conservator of the petitioner. 1 They sought an alternative writ which, after hearing, would lead to a peremptory writ that would prohibit continuing the orders in force, or which, in the alternative, would prohibit the respective temporary conservators from subjecting their respective temporary conservatees to the process of "deprogramming." In response to a further prayer in the petition, and after reviewing opposition filed by the conservators, on March 28, 1977, we issued a stay, pending determination of the petition, which substantially modified the powers of the temporary conservators. 2
The following day the petitioners sought an order to show cause directed against the alleged contempt of the order of this court by the conservators and others, and prayed for a suspension of the temporary conservatorships pending further order of this court. The conservators countered with a denial, alleged that two of the conservatees had requested deprogramming, and that associates of the conservatees were attempting to interfere with the conservators' control over the conservatees.
On March 30, the petitioners suggested the appointment of neutral, independent temporary conservators if the appointment was not vacated. The conservators sought to enlist the aid of deprogrammers to prevent harassment of themselves and their charges, and to establish the right of the temporary conservatees to talk to deprogrammers upon requesting such conversation in writing.
On March 31, the temporary conservators filed a request for an evidentiary hearing on the alleged contempt before any further stay was granted. For their part, the attorneys for the petitioners advised the court that an amended petition would be filed; and, by a separate communication, they advised this court that the petitioner Underwood had filed a revocation of the appointment of her attorneys, the designation of an Arizona attorney as her attorney and a voluntary consent to a conservatorship with the superior court, but that they could not ascertain whether she had freely and voluntarily done so.
By amended petition filed April 4, 1977, the petitioners sought (1) a writ of habeas corpus releasing petitioners from the custody of the temporary conservators; (2) review of the proceedings appointing the temporary conservators by writ of certiorari, to the end that the orders be vacated; (3) relief by extraordinary writ to control the procedure at any hearing to appoint a permanent conservator; 3 and (4) costs of suit and reasonable attorneys' fees as provided in federal law. (Public Law 94-559 42 U.S.C. § 1988.) An amicus curiae brief from the American Civil Liberties Union in support of the petition was filed. This court on April 5 then issued an alternative writ of mandate and order to show cause why a referee should not be appointed to hold a hearing on the contempt charges.
Meanwhile on April 5 the attorney for the temporary conservatees unsuccessfully sought an order vacating the temporary conservatorships in the trial court on the grounds the conservators had abused their powers as modified by the orders of this court. The conservators on April 8 filed their response to the new petition and the brief of amicus curiae; and on April 11, 1977, the matter came on for hearing.
At that time the attorneys for the petitioners filed their application for leave to withdraw as counsel for the petitioners Underwood, Brown and Katz; each of whom had executed documents similar to those previously filed by Underwood in the superior court. That application was granted; and the court took under submission the question of the dismissal of the petitions filed on their behalf with this court. In view of the instruments executed by those petitioners, the petition and amended petition for extraordinary relief must be dismissed insofar as they seek relief for those petitioners. Following argument the court stayed all five orders appointing a temporary conservator so as to enable each temporary conservatee to associate with whomsoever he or she might choose. There remained for consideration the questions of whether those orders should be peremptorily set aside, whether the court should outline the procedure for conducting a hearing for the appointment of permanent conservators for the two remaining petitioners, the disposition to be made of petitioners' charges that the conservators and their agents acted in contempt of the orders of appointment as restricted by this court's order of March 28, 1977, and petitioners' application for attorneys' fees.
Submission of those matters was deferred pending the preparation of filing of a reporter's transcript of the proceedings in the trial court. The record having been filed, and all matters having been reviewed we conclude that the proceedings are not moot, and entertain them as to the remaining petitioners.
In examining the contentions made in support of the petition we find that the former provisions of section 1751 of the Probate Code, which the temporary conservators relied upon in these proceedings, were too vague to justify the appointment of temporary conservators of the persons as granted herein; that the former statutes did not authorize the appointments, as made by the court, under the most favorable interpretation of the evidence; and that under the circumstances of this case it was a violation of the petitioners' rights to religious freedom to appoint temporary conservators of their persons under the provisions of the Probate Code.
The order to show cause for contempt must be discharged in the interests of justice, and petitioners' prayer for attorneys' fees is denied.
Preliminarily we are faced with the question as to whether any decision on the merits of the original orders of appointment has been rendered moot. As we have noted, the petitions attacking the order must be dismissed with respect to three of the petitioners and their respective temporary conservators. With respect to the remaining two petitioners the orders for appointment of a temporary conservator are still of record although modified and stayed by this court. Under the law in effect at the time of the proceedings in the lower court, the temporary conservatorship continues "pending the final determination of the court upon the petition for appointment of a conservator." (Prob.Code, § 2201.) 4 Nevertheless we note that provisions governing the showing, circumstances and determination for appointment of a conservator have been drastically changed, 5 so that interpretation of the law in effect on March 25, 1977 may be of little precedential value.
The remaining parties and amicus curiae, however, have urged and insisted that the court rule on the remaining issues. Petitioners point out that even though certain facets of the case may have been resolved by releasing the petitioners from the custody of the temporary custodians, the Supreme Court has stated, ". . . if a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot." We therefore examine the validity of the outstanding orders, and the issues remaining on the contempt charge. We refrain from ruling on petitioners' prayer for directions concerning the procedure to be followed in connection with any hearing for a permanent conservatorship. We must assume that the trial court will follow appropriate law and procedure in the event such a hearing is held. The question of the probative effect of the religious beliefs, affiliations and activities of the proposed conservatee is, of necessity, discussed below as it bears on the appointment of a temporary conservator. The former's right to a jury trial is established by precedent, and by present statute. (Le Jeune v. Superior Court (1963) 218 Cal.App.2d 696, 698, 32 Cal.Rptr. 390; Prob.Code, § 1754.1, as added Stats. 1976, ch. 1357, § 27, operative July 1, 1977.) The question of the burden of proof and the necessity for unanimity in the verdict of the jury where civil proceedings may result in involuntary confinement is presently in the bosom of our appellate courts. 6 We cannot, however, avoid the juxtaposition of present and past law where it throws light on our...
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