Petitioner, Children's Hospital of Los Angeles, Regional Center,
The proceedings in the lower court were in each instance initiated in March 1977 by petitions of the regional center filed in its behalf by Musick, Peeler & Garrett and Bruce E. Clark, private counsel retained by the center. Each petition alleges that one of the real parties in interest is a resident of Pacific State Hospital in the County of Los Angeles, is believed to be developmentally disabled,
Motions to dismiss the petitions were made on behalf of real parties by the Public Defender of Los Angeles County. These motions which were not made a part of the record of these proceedings were in each case denied by the court. However, two days later, as the minutes indicate: "The Court, on its own motion, raised the question of the constitutionality of Section 38009.1 of the Health and Safety Code, insofar as that section purports to grant to regional centers the power to file petitions for commitment...."
Oral argument was heard and the court ruled as follows:
"(1) The constitutional due process rights of Respondents, as mandated by the Federal and State Constitution, would be violated if a non-governmental agency were permitted to file a petition against
"(2) The Children's Hospital Regional Center is a non-governmental agency.
"(3) Therefore, the Children's Hospital Regional Center does not have the power to file the petition now before this court.
"(4) Even assuming that the Children's Hospital Regional Center had such power to file the petition, the constitutional due process rights of Respondents would be violated if private counsel were empowered to present the evidence necessary to the commitment, and the consequent loss of freedom by Respondents. The only attorneys who may be empowered to prosecute cases where the Respondent may lose his freedom are those employed by and therefore responsible to, a governmental agency.
"(5) In order to give petitioner opportunity to seek appellate review of this order, the effect of this order is stayed until June 27, 1977."
On June 23, 1977, this court issued its temporary stay order staying the order to permit consideration of the petitions for writ of mandate and on July 29, 1977, an alternative writ was issued in both cases directing the court to hold a hearing to determine the merits of the petitions or show cause why a peremptory writ of mandate should not issue.
Thereafter a return and answer with points and authorities was filed by the County Counsel of Los Angeles County on behalf of respondent court. No response was filed on behalf of real parties in interest. However, pursuant to leave granted by this court an amicus curiae brief was filed on behalf of an organization of parents of residents of Pacific State Hospital, Parents Coordinating Council and Friends of Pacific State Hospital. The return and answer of respondent court and the brief of amicus curiae both opposed issuance of a peremptory writ upon the same basis stated by the court in its ruling, so no new issues were injected by either brief.
Section 6513 contains the same provisions as Health and Safety Code section 38009.1 for assessment by regional centers of developmentally disabled, nonprotesting or voluntary residents of state hospitals who request release but it alters the function of the regional centers with respect to petitions for commitment to that of requesting "the district attorney or the county counsel, when the board of supervisors has delegated such duty ... to file a petition seeking commitment to the State Department of Health." New section 6514 states the procedure and the standard for determination of petitions filed pursuant to section 6513. These provisions are substantially the same as those contained in former Health and Safety Code section 38009.2.
More significantly, however, new section 6519 provides as follows: "6519. At any judicial proceeding under the provisions of this division, allegations that a person is (a) a danger to others, (b) a danger to himself, or (c) unable to provide safely for his basic personal needs for food, shelter and clothing, and is unable to protect himself from ordinary threats to life, health, or safety as a result of a developmental disability, shall be presented by the district attorney for the county, unless the board of supervisors, by ordinance or resolution, delegates such duty to the county counsel." (Italics added.)
The urgency provision of the bill adopting the new sections includes the following: "The provisions of this bill are necessary to ensure, at the earliest possible time, constitutional rights to the developmentally disabled under the provisions of Chapter 1364 to Chapter 1373, inclusive, of the Statutes of 1976, which became effective on January 1, 1977."
Such being the case, this court cannot order the trial court to hear the petitions unless they are adopted by the district attorney or county counsel as petitions to be presented by one or the other of them. Nothing in the trial court's orders suggests that if the district attorney or county counsel should adopt or refile such petitions that it would decline to hear them. The petitions expressly state the regional center's recommendation that the real parties in interest be committed. Consequently it may be assumed that petitioner will request the district attorney or county counsel to take such action as is necessary to implement such recommendation. If this is done and the district attorney or county counsel concurs in the recommendation, there is nothing in the record to suggest that the respondent court will not exercise its jurisdiction. No reason appears, therefore, for this court to direct the respondent court to do so.
Such a direction would be particularly inappropriate in this case inasmuch as the briefs submitted in this court have been limited to the very narrow issue (now mooted) upon which the court's order was based and no briefs have been filed in behalf of the real parties in interest supporting the court's refusal to act on bases other than those specified in the order. Any attempt by this court to direct the future course of proceedings in the trial court would necessarily determine issues in respect of which such parties have not been heard in this court.
We therefore conclude that a peremptory writ should be denied upon the grounds above stated, to wit, that the recent legislation precludes granting the relief sought and in effect moots the petition inasmuch as the court has not indicated that it will decline to exercise jurisdiction if the district attorney or county counsel acts to adopt and present the allegations to the court.
Allport, Acting P.J., and Loring, J.,