Superior Court of Monterey County, Nos.: SS112361, MH4621, MH4654, MH4924, MH4928, MH4934, MH5082, MH5119, MH5129 The Honorable Mark E. Hood Judge.
Attorneys for Petitioner Christopher Sorenson: James S. Egar Public Defender Donald Earl Landis Jr. Assistant Public Defender Monterey County Public Defender’s Office.
Attorneys for Real party in Interest The People: Dean D. Flippo District Attorney for Monterey County Glenn Pesenhofer Deputy District Attorney.
Attorneys for Real party in Interest The Monterey County Herald: James M. Chadwick David E. Snyder Sheppard, Mullin, Richter & Hampton LLP.
The County of Monterey in two separate proceedings sought to involuntarily commit petitioner Christopher Sorenson, pursuant to the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq; LPS Act or Act). These LPS conservatorship proceedings resulted in two jury trials, occurring in June and November 2011, to determine whether Sorenson was gravely disabled due to mental illness within the meaning of the LPS Act. Sorenson was not involuntarily conserved.
Sorenson was subsequently charged with the murder of his mother, her death occurring just eight days after the conclusion of the second LPS trial. The Monterey County District Attorney, on behalf of the People, made an informal request to the court reporter for copies of the reporter’s transcripts of the two LPS jury trials as an aid to the prosecution of the charged crime. Additionally, a local newspaper, The Salinas Californian (The Californian), requested that the court clerk give it access to the entire files from those two LPS proceedings. The presiding judge of the superior court denied both requests in separate minute orders, reasoning that the court files were confidential under the Act. The People then filed a formal motion for an order granting access to copies of the reporter’s transcripts of the two LPS jury trials. One week later, a second local newspaper, The Monterey County Herald (The Herald), filed a motion requesting that the court grant it access to the court files of eight LPS proceedings involving Sorenson. The Herald’s motion was later joined by The Californian. After briefing and a hearing, a different superior court judge—assigned by the presiding judge to hear all matters pertaining to Sorenson, including the pending requests by the People and the media—granted the People, the media, and Sorenson access to the reporter’s transcripts of the two LPS jury trials. Sorenson challenges that order by this petition for writ of mandate.
Very significant, competing interests are claimed by the parties. Sorenson claims that the release of the trial transcripts would violate (1) section 5118, which (he claims) makes LPS trials presumptively nonpublic, (2) his right to confidentiality under section 5328 of the Act, (3) his constitutional right to privacy, and (4) his confidentiality rights under the psychotherapist-patient privilege. The People and the media claim a First Amendment right of public access to the LPS trial transcripts, because such a constitutional right exists for all “ordinary civil trials and proceedings.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1212 (NBC Subsidiary).) They also claim a statutory right of access under Code of Civil Procedure section 124, which provides that, absent express statutory exceptions, “the sittings of every court shall be public”; they contend that section 5118 is not such a statutory exception.
We conclude that the court erred in granting the People and the media access to the transcripts from Sorenson’s two LPS jury trials. In so holding, we conclude that involuntary conservatorship proceedings under the LPS Act are not “ordinary civil trials and proceedings” (NBC Subsidiary, supra, 20 Cal.4th at p. 1212) that are presumptively public. Rather, they are special proceedings. But they are not special proceedings for which there is a qualified First Amendment right of public access. There is not such a tradition of openness or utility associated with having the proceedings public to support a finding of a constitutional right of access. Furthermore, section 5118 makes LPS jury trials presumptively nonpublic, thereby constituting a statutory exception to Code of Civil Procedure section 124’s general requirement that such “sittings... be public.” We hold that the superior court erred in concluding that, notwithstanding that LPS jury trials are presumptively nonpublic, the parties by their conduct “were deemed to have ‘requested’ [under section 5118] that the hearings be public.” We will therefore grant the petition for writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
The People are prosecuting Sorenson for murder in Monterey Superior Court Case Number SS112361. On December 21, 2011, a reporter from The Californian made a written request by two-sentence letter to the respondent superior court “to view and/or make copies of the case files” in two LPS proceedings involving Sorenson (Case numbers MH004654 and MH005129). The reporter indicated that the request was made because “there may be information in those documents that is the public’s right to know.” At or about the same time, the People, through the Monterey County District Attorney’s Office, made an informal request to the court reporter for copies of the jury trial transcripts in those two proceedings. The court (Presiding Judge Timothy Roberts) denied the two requests by separate orders dated January 18, 2012, observing that LPS conservatorship hearings and their associated court files were “deemed confidential.”.
On February 1, 2012, the People filed a pleading captioned “request for reconsideration of order denying request for transcripts of jury trial.” (Capitalization omitted.) In that motion, the People requested that the court “allow [them] to inspect the records of Mr. Sorenson’s [LPS conservatorship] trials, and to obtain the trial transcripts at [their] cost.” One week later, The Herald filed a motion (labeled “petition”) to examine the sealed-records files of eight LPS proceedings involving Sorenson—the two proceedings identified in The Californian’s prior letter request (Case numbers MH004654 and MH005129), along with six other identified cases. A declaration and memorandum of points and authorities were attached to The Herald’s motion.
On March 19, 2012, a different superior court judge (Judge Mark E. Hood) set a hearing on the People’s and The Herald’s motions, identifying five legal issues for consideration. According to Judge Hood’s subsequent order, Presiding Judge Roberts had “specially assigned these matters... for review of issues pertaining to requests to access any information contained in the above-referenced [LPS] cases and for reconsideration of any of his prior rulings.” Further briefs were submitted on behalf of the People, The Herald,  and Sorenson. The Herald indicated in its brief that it was seeking an order (1) unsealing the transcripts of Sorenson’s two LPS jury trials, (2) unsealing all of the records of eight enumerated mental health proceedings involving Sorenson, and (3) “correcting the systematic and automatic sealing of all records relating to LPS Act proceedings.”
After hearing argument and taking the matter under submission, the court entered an order on May 2, 2012, granting the People, the media, and Sorenson access to copies of the reporter’s transcripts of the jury trials conducted in two LPS proceedings involving Sorenson (case numbers MH005082 and MH005129). In so ruling, the court held that hearings under the LPS Act are nonpublic unless either party requests a public hearing; neither party requested a public hearing in either of the LPS trials in controversy; the record indicated that the trials proceeded as public hearings without objection by either party; and therefore the parties by their conduct were “deemed to have ‘requested’ that the hearings be public” under section 5118. The court also denied the media’s request for “access to all files and records associated with [Sorenson’s] LPS Act proceedings, ” concluding that the files and information were confidential and not discoverable under section 5328. The court issued a 15-day temporary stay of its order.
On May 16, 2012, Sorenson filed a petition for writ of mandate or prohibition and a request for temporary stay with this court. On the same date, we granted a temporary stay of respondent court’s order and invited real parties in interest to submit preliminary opposition to the petition. After receiving the People’s preliminary opposition and Sorenson’s reply, we issued an order directing respondent court to show cause why a peremptory writ of mandate should not issue as requested in the petition. The People filed a return to the petition,  and Sorenson filed a formal reply.
I. Request for Dismissal and Mootness
On April 26, 2013, after briefing was concluded, Sorenson filed, by one-sentence letter, a request that the court dismiss his petition. The language of the letter was uninformative, and vaguely referenced exhibits attached to the People’s prior motion to dismiss,  which dismissal motion this court denied without prejudice. But the apparent basis for Sorenson’s request was that he had entered a change of plea in February 2013 and pleaded not guilty by reason of insanity, and thereafter had signed a document indicating that he “conditionally waive[d] any privacy rights to the transcripts of [the LPS trials], ” as well as privacy rights to any reports generated by doctors who may have evaluated him in connection with the two LPS trials. Sorenson acknowledged in this conditional waiver that he understood that the parties who received the reports and transcripts would be subject to a court protective order preventing disclosure of the materials to others.
We denied Sorenson’s request for dismissal because this case presents issues of continuing public interest, including the scope of the First Amendment right of public access to judicial proceedings, and whether LPS proceedings, including trials, are made presumptively nonpublic by statute. (See Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8 [court may decline dismissal of moot case “where the appeal raises issues of continuing public importance”]; Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 746-747 [court, regardless of mootness, may decide case involving “ ‘matter[s] of continuing public interest... likely to recur’ ”].) Additionally, while the post-petition developments alluded to in Sorenson’s dismissal request may meet the needs of the People and Sorenson insofar as the trial court’s order granting them access to the LPS jury trial transcripts is concerned, it does not render the controversy moot. Were we to permit dismissal of the petition, The Herald and The Californian would also be entitled to receive copies of the two LPS jury trial transcripts by virtue of the challenged order, an order we will conclude to have been erroneous. We have therefore exercised our discretion to deny Sorenson’s request for dismissal and will decide the controversy raised by the petition. (See Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1014 [court, despite parties’ settlement of case after briefing and argument, may elect to decide merits of controversy involving matter of continuing public interest].)
II. Propriety of May 2, 2012 Order in Light of Court’s Prior Orders
During oral argument, we raised a procedural question concerning the propriety of the May 2, 2012 order of Judge Hood, given the fact that Presiding Judge Roberts, approximately four months earlier, had issued two orders seemingly addressing the same or similar issues concerning access to the transcripts of Sorenson’s LPS trials. Specifically, we asked counsel whether Judge Hood had the authority to grant the People, the media, and Sorenson access to the transcripts in light of Presiding Judge Roberts’s prior orders denying The Californian’s and the People’s requests for access to two of Sorenson’s LPS files and the reporter’s transcripts, respectively. This court requested supplemental briefing, which it subsequently received from Sorenson, the People, and The Herald. Upon consideration of the issue, we conclude that Judge Hood had the authority to issue the May 2, 2012 order, and we may therefore consider the merits of Sorenson’s petition.
At the time The Herald filed its formal motion in February 2012, the court had not acted on The Herald’s request for access to sealed LPS files pertaining to Sorenson. The then-existing orders of Presiding Judge Roberts pertained to the People’s informal request to a court reporter, and The Californian’s letter request to the clerk. The Herald’s formal, six-page motion contained a declaration and a memorandum explaining in detail its legal position, including a citation to NBC Subsidiary, supra, 20 Cal.4th 1178. Further, the relief sought by The Herald in its motion and in supplemental memoranda was significantly broader than that requested previously by either The Californian or the People: The Herald requested the unsealing of eight LPS files involving Sorenson, an unsealing of the transcripts of Sorenson’s two LPS jury trials, and an administrative order “correcting the systematic and automatic sealing of all records relating to LPS Act proceedings.” The Herald’s motion thus stood in stark contrast to The Californian’s prior, two-sentence letter request to the clerk seeking to inspect or copy two of Sorenson’s LPS files because they might contain “information... that is the public’s right to know.” Because The Herald’s motion involved a request for access to court files and an order unsealing all LPS files made by an entity not involved in any prior proceedings that prompted the issuance of Presiding Judge Roberts’s prior orders, those orders did not act as an impediment to Judge Hood’s subsequent action on The Herald’s motion.
With respect to the court’s internal reassignment of the motions to Judge Hood, we are mindful of the limitations involved in one judge, by subsequent order, nullifying a prior ruling by another judge of the same superior court. (See In re Alberto (2002) 102 Cal.App.4th 421, 426-428.) But the rationale behind the general rule limiting the power of the former judge under those circumstances—(1) discouraging “forum shopping” by the parties, and (2) preventing the later-ruling judge from becoming “a one-judge appellate court” (id. at p. 427)—do not pertain to this case. The orders denying access to the People and The Californian made by Presiding Judge Roberts were not the result of a motion process involving submission of formal requests to the court upon noticed motions supported by appropriate points and authorities and declarations. (See Code Civ. Proc., §§ 1003 [“application for an order is a motion”], 1005.5 [“motion upon all grounds stated in the written notice thereof is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion, but this shall not deprive a party of a hearing of the motion to which he is otherwise entitled”].) Rather, the orders were prompted by the People’s informal (perhaps oral) request to the court reporter, and The Californian’s two-sentence letter to the court clerk. Since neither the People nor The Californian had submitted a prior application that resulted in the initial January 2012 orders of Presiding Judge Roberts—and The Herald had made no access request at all—Judge Hood, after reassignment to him of the motions requesting access, was not precluded from ruling on those motions.
Presiding Judge Roberts’s reassignment of these matters to Judge Hood, who was presiding over the criminal proceedings pending against Sorenson, was also authorized by statute and court rule. Under Government Code section 69508, subdivision (a), “the presiding judge shall distribute the business of the court among the judges, and prescribe the order of business.” “Assignments of the ‘business’ of the court among judges of the court is wholly discretionary.” (Anderson v. Phillips (1975) 13 Cal.3d 733, 737.) Rule 10.603 of the California Rules of Court delineates the authority vested in the presiding judge with respect to judicial assignments, providing that the presiding judge “has ultimate authority to make judicial assignments.” (Cal. Rules of Court, rule 10.603(c)(1).) “Rule 10.603(b)(1)(A) and (B) authorizes the presiding judge to ‘[a]ssign judges to departments, ’ ‘designate supervising judges for divisions, ’ and ‘[a]pportion the business of the court, including assigning and reassigning cases to departments.’ Rule 10.603(c)(1)(D) directs the presiding judge to ‘[r]eassign cases between departments as convenience or necessity requires.’ Rule 10.603(d) permits the presiding judge to delegate any of the duties listed in the rule to another judge.” (Alvarez v. Superior Court (2010) 183 Cal.App.4th 969, 978.)
Moreover, Judge Hood was empowered to decide the applications for access because they involved claimed public access rights under the First Amendment. As noted by the court in In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1575 (cited by both the People and The Herald), “Since orders to seal court records implicate the public’s right of access under the First Amendment, they inherently are subject to ongoing judicial scrutiny, including at the trial court level.” In Marriage of Nicholas, the court rejected the appellant’s jurisdictional challenge to a sealing order (the eighth in a succession of orders) based upon its having been entered by a different judge from the one who issued the prior sealing order of which the appellant was the proponent. (Id. at pp. 1574-1578.) The court came to this conclusion based upon, inter alia, the above-quoted principle and the fact that rule 2.551(h) of the California Rules of Court expressly authorizes the court to unseal its records upon the request of any person, whether a party to the litigation or not (Marriage of Nicholas, at p. 1577).
The reassignment of the motions to Judge Hood was a proper exercise of the Presiding Judge’s discretion. Judge Hood was therefore authorized to entertain the People’s and The Herald’s motions for access to Sorenson’s LPS files. Accordingly, we reject Sorenson’s claim that Judge Hood did “not possess the legal authority to issue a superceding [sic] order overruling Judge Roberts’[s] original order.”
III. Contentions of the Parties
Sorenson acknowledges that under our high court’s decision in NBC Subsidiary, supra, 20 Cal.4th 1178 and Code of Civil Procedure section 124, court records are presumptively open to the public. But he argues that, the presumption of openness notwithstanding, LPS proceedings are nonpublic. He contends that LPS proceedings are “unique” and are “especially designed to help encourage mental health treatment, protect the public, safeguard the rights of mental health patients, and encourage persons with mental health problems to seek treatment on a voluntary basis. [Citations.]” He asserts that section 5118 creates a presumption that LPS proceedings are nonpublic, insofar as that statute provides that any party to them may demand that a hearing be public. And he argues that the court erred when it found, based upon inadmissible hearsay, that the parties were “deemed to have ‘requested’ that the hearings be public” under section 5118.
The People respond that, although the trial court’s reasoning may have been incorrect, it reached the correct result in permitting access to the LPS trial transcripts. They (along with The Herald) argue that, pursuant to both the First Amendment (NBC Subsidiary, supra, 20 Cal.4th at p. 1212) and statute (Code of Civ. Proc., § 124), there is a public right of access to LPS jury trials. And they assert that there is no statutory language creating a presumption that LPS proceedings are nonpublic. They contend, in essence, that had the Legislature wished to make LPS jury trials confidential, it could have easily done so. Instead, the language of section 5350, giving a proposed conservatee the right to demand a jury, says nothing about confidentiality. And they contend that section 5118 cannot be read as requiring that LPS jury trials be nonpublic. Therefore, they argue, the trial court correctly granted their request for copies of the trial transcripts.
IV. The LPS Act
The Legislature enacted the LPS Act in 1967. (See Stats. 1967, ch. 1667, § 36, p. 4074.) Included among the goals of the Act are “ending the inappropriate and indefinite commitment of the mentally ill, providing prompt evaluation and treatment of persons with serious mental disorders, guaranteeing and protecting public safety, safeguarding the rights of the involuntarily committed through judicial review, and providing individualized treatment, supervision and placement services for the gravely disabled by means of a conservatorship program. (§ 5001.) The act limits involuntary commitment to successive periods of increasingly longer duration, beginning with a 72-hour detention for evaluation and treatment (§ 5150), which may be extended by certification for 14 days of intensive treatment (§ 5250). That initial period may be extended for an additional 14 days if the person detained is suicidal. (§ 5260.) In those counties that have elected to do so, the 14-day certification may be extended for an additional 30-day period for further intensive treatment. (§ 5270.15.) Persons found to be imminently dangerous may be involuntarily committed for up to 180 days beyond the 14-day period. (§ 5300.) After the initial 72-hour detention, the 14-day and 30-day commitments each require a certification hearing before an appointed hearing officer to determine probable cause for confinement unless the detainee has filed a petition for writ of habeas corpus. (§§ 5256, 5256.1, 5262, 5270.15, 5275, 5276.) A 180-day commitment requires a superior court order. (§ 5301.)” (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1009.)
“The LPS Act governs the involuntary detention, evaluation, and treatment of persons who, as a result of mental disorder, are dangerous or gravely disabled. (§ 5150 et seq.) The Act authorizes the superior court to appoint a conservator of the person for one who is determined to be gravely disabled (§ 5350 et seq.), so that he or she may receive individualized treatment, supervision, and placement (§ 5350.1). As defined by the Act, a person is ‘gravely disabled’ if, as a result of a mental disorder, the person ‘is unable to provide for his or her basic personal needs for food, clothing, or shelter.’ (§ 5008, subd. (h)(1)(A).)” (Conservatorship of John L. (2010) 48 Cal.4th 131, 142.) Under the Act, a conservator of a gravely disabled person may be appointed for up to one year (§ 5350), subject to a petition to reestablish the conservatorship for additional one-year periods before the expiration of each one-year term (§§ 5361, 5362). Because an involuntary civil commitment constitutes a deprivation of liberty and places a stigma upon the conservatee’s reputation, due process under the California Constitution requires that a finding of grave disability in an LPS jury trial must be unanimous and based upon proof beyond a reasonable doubt. (Conservatorship of Roulet (1979) 23 Cal.3d 219, 235; see also Conservatorship of Ben C. (2007) 40 Cal.4th 529, 541 [“[b]ecause of the important liberty interests at stake, correspondingly powerful safeguards protect against erroneous findings”].)
V. Standard of Review
We will consider (see pt. VI.B., post) whether the First Amendment right of public access applies to LPS conservatorship trials. Where the issue to be decided implicates First Amendment rights, appellate courts are required to conduct an independent review of the record. (People v. Jackson (2005) 128 Cal.App.4th 1009, 1021, citing In re George T. (2004) 33 Cal.4th 620, 630-631; see also Copley Press, Inc. v. Superior Court (1998) 63 ...