Northern Cal. Psychiatric Society v. City of Berkeley

• Decision Date: 28 February 1986
• Citation: 223 Cal.Rptr. 609,178 Cal.App.3d 90
• Parties: NORTHERN CALIFORNIA PSYCHIATRIC SOCIETY et al., Plaintiffs and Respondents, v. CITY OF BERKELEY, Defendant and Appellant. AO26125.
• Court: California Court of Appeals Court of Appeals

Page 609

223 Cal.Rptr. 609

178 Cal.App.3d 90

NORTHERN CALIFORNIA PSYCHIATRIC SOCIETY et al., Plaintiffs and Respondents, v. CITY OF BERKELEY, Defendant and Appellant.

AO26125.

Court of Appeal, First District, Division 3, California.

Feb. 28, 1986.

Review Denied May 22, 1986.

Natalie E. West, City Atty., and Manuela Albuquerque, Deputy City Atty., Berkeley, for defendant and appellant City of Berkeley.

David Ferleger, Philadelphia, Pa., and Samuel E. Trosow, Berkeley, for intervenor and appellant, Coalition to Stop Electroshock.

Severson, Werson, Berke & Melchoir by Kurt W. Melchoir and Mark Joseph Kenney, San Francisco, and Onek, Klein & Farr, by Joel I. Klein, Washington, D.C., for plaintiffs and respondents.

Hassard, Bonnington, Rogers & Huber by David E. Willett, Catherine I. Hanson and Richard R. Sheridan, San Francisco, amicus curiae on behalf of Northern California Psychiatric Assoc., et al.

WHITE, Presiding Justice.

The City of Berkeley, California, appeals from summary judgment entered in favor of The National Association of Private Psychiatric Hospitals, national, state and local professional psychiatric associations, and Ronald Bortman, M.D., an individual psychiatrist and Berkeley taxpayer. We affirm.

I

On November 2, 1982, the voters of Berkeley adopted a local initiative measure, which was subsequently formally enacted by the Berkeley City Council as Berkeley City Ordinance 5504. Ordinance 5504 absolutely prohibited "[t]he administration of electric shock treatment to any person within the City of Berkeley," declared any violation of the ordinance to be a misdemeanor, and imposed criminal punishment of up to six months imprisonment, $500 fine, or both, for any such violation.

On December 14, 1982, respondents brought suit for a judicial declaration that Berkeley City Ordinance 5504 was unconstitutional, invalid and void on its face, and to enjoin enforcement of the ordinance. The trial court issued a preliminary injunction against enforcement of the ordinance on January 18, 1983. On July 10, 1983, respondents filed their motion for summary judgment. The motion was heard and argued on July 15, 1983. On September 27, 1983, an ex parte motion for leave to intervene was filed by the Coalition to Stop Electroshock (the "Coalition"), an organization which had previously filed an amicus curiae brief on January 12, 1983, in support of the City of Berkeley. This ex parte motion was denied. The Coalition then filed a formal noticed motion to intervene on October 14, 1983.

On November 1, 1983, the trial court filed its order granting the motion for summary judgment and entered judgment for respondents, permanently enjoining the City of Berkeley from enforcing Ordinance 5504 and declaring it "unconstitutional and void." Following the trial court's denial of Berkeley's motion for reconsideration and of the Coalition's motion to intervene on December 14, 1983, both Berkeley and the Coalition appealed.

II

The subject of the underlying lawsuit and of this appeal is electroconvulsive therapy ("ECT"), popularly known as electric shock treatment, and referred to as such by Ordinance 5504. " ' "Shock" treatment, more accurately termed "electroconvulsive therapy" is the name given to a group of therapies which involve passing electrical currents through the brain in order to induce convulsions. The therapeutic effects of ECT are generally believed to be obtained by the seizure produced by the stimulation of the central nervous system. The risks attending such treatment have been greatly reduced by the use of muscle relaxants and general anesthetics, which greatly reduce the body convulsions that led to bone fractures in the past. The mechanism by which ECT confers its benefits is still unknown, but two facts stand out in almost every discussion of the treatment: first, ECT does relieve symptoms of certain mental illnesses, most notably acute depression, and is widely recognized therapy for obtaining remission of those symptoms; second ECT has several adverse effects, including memory loss and intellectual disorientation. The extent of memory loss and the risk of permanent memory loss are not fully known or agreed upon, but the fact of memory loss is not questioned. The risk of other adverse effects is possible, since the procedure is still so little understood. Those possible risks include permanent brain damage in the local area of the electrodes and a slowing of brain waves. The outstanding features of ECT, then, are its acknowledged benefits in the treatment of certain illnesses, and the intrusive and possibly hazardous character of the treatment.' [Citation.]" (Lillian F. v. Superior Court (1984) 160 Cal.App.3d 314, 317, 206 Cal.Rptr. 603.)

Recognizing both the "intrusive and possibly hazardous character" of ECT, and "its acknowledged benefits in the treatment of certain illnesses," the Legislature has enacted detailed legislation extensively regulating the administration of ECT, and requiring, among other things, stringent safeguards designed to insure that psychiatric patients have the right to refuse ECT. (Welf. & Inst.Code, §§ 5325, subd. (f), 5325.1-5326.5, 5326.7-5327.) The procedural safeguards enacted by the Legislature include requiring a patient's voluntary written informed consent to the use of ECT; the voluntary written informed consent of a responsible relative, guardian or conservator of a patient who does not have the capacity to give written informed consent; and a noticed evidentiary hearing in superior court to determine a patient's capacity to give written consent whenever either the attending physician or the patient's attorney believes that the patient does not have such capacity. (Welf. & Inst.Code, § 5326.7, subds. (d), (e), (f), (g) and (h).) ¹ These regulatory provisions are contained within the Lanterman-Petris-Short Act (the "LPS Act"). According to its express statement of purpose, the LPS Act was enacted to protect the rights of mentally disturbed persons; to promote prompt individualized evaluation, treatment, supervision and placement of the seriously mentally ill; and "[t]o end the inappropriate, indefinite, and involuntary commitment of mentally disordered persons, developmentally disabled persons, and persons impaired by chronic alcoholism, and to eliminate legal disabilities; ..." (Welf. & Inst.Code, §§ 5000, 5001.)

III

On appeal, the City of Berkeley urges that the trial court erred in granting summary judgment because both of the grounds upon which the court based its grant of the motion allegedly involved triable issues of material fact precluding summary judgment. (Code Civ.Proc., § 437c.) We disagree.

The two issues argued by respondents in support of their motion for summary judgment, and on the basis of which the trial court granted that motion, were the preemption of the municipal ordinance by preexisting state law and the constitutionality of the ordinance. The resolution of both of these issues turns entirely on questions of law for which the summary judgment procedure is appropriate. (Killian v. City and County of San Francisco (1978) 77 Cal.App.3d 1, 7, 143 Cal.Rptr. 430.)

Article XI of the California Constitution deals with local government. Section 5 provides that chartered cities "may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws." (Cal. Constitution, art. XI, § 5, subd. (a), emphasis added.) Similarly, section 7 states: "A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." (Id., § 7, emphasis added.) " 'Local legislation in conflict with general law is void. Conflicts exist if the ordinance duplicates [citations], contradicts [citation], or enters an area fully occupied by general law, either expressly or by legislative implication [citations]. If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation, even if the subject were otherwise one properly characterized as a "municipal affair." [Citations.]' [Citation.]" (People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 484-485, 204 Cal.Rptr. 897, 683 P.2d 1150; see also Ventura v. City of San Jose (1984) 151 Cal.App.3d 1076, 1078, 199 Cal.Rptr. 216.)

In short, if Ordinance 5504 does not deal strictly with "municipal affairs," it is a matter "subject to general [state] laws," and must be declared unconstitutional and preempted either if it contradicts state law or if it enters a field fully occupied by state law. (People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at pp. 484-485, 204 Cal.Rptr. 897, 683 P.2d 1150; Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807-808, 100 Cal.Rptr. 609, 494 P.2d 681; Doe v. City and County of San Francisco (1982) 136 Cal.App.3d 509, 512, 186 Cal.Rptr. 380.) This issue is one of law, not of fact.

IV

The threshold question is whether Berkeley's ordinance banning ECT is peculiarly "municipal" in nature. Because article XI of the state Constitution fails to define municipal affairs, it is necessary for the courts to decide, as a matter of law on a case-by-case basis, whether the subject matter of a municipal ordinance in question is of local or statewide concern. (Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 294, 32 Cal.Rptr. 830, 384 P.2d 158.) "A city has no power to legislate upon matters which are not of a local nature [citations]. When there is a doubt as to whether an attempted regulation relates to a municipal or to a state matter, or if it be the mixed concern of both, the doubt must be resolved in favor of the legislative authority of the state [citations]." (Abbott v. City of Los Angeles (1960) ...