In Conservatorship of Eric B., the Supreme Court today holds that persons who could be subject to “ ‘an unbroken and indefinite period of state-sanctioned confinement’ ” under conservatorships for the gravely disabled might have the right to not testify at proceedings establishing those conservatorships. It’s not a constitutional right, at least not directly, and the court doesn’t find the right even exists, only that it might exist.
There is no constitutional right to not be a witness against oneself in civil commitment proceedings, but a California statute — as previously interpreted by the court — extends that right to some of those proceedings: where a person could be committed to a state hospital after being found not guilty of a felony by reason of insanity (NGI). No comparable statute exists for potential gravely disabled conservatees, but today’s opinion by Justice Carol Corrigan concludes that those potential conservatees are similarly situated with NGIs, and that constitutional equal protection principles thus require the government to “justify its differential treatment.”
However, the court doesn’t decide whether the justification exists because the conservatee in the case didn’t challenge the Court of Appeal’s ruling that his compelled testimony was harmless error.
Justice Leondra Kruger, writing for herself and Justices Goodwin Liu and Joshua Groban, all of whom sign the court’s opinion, agrees with the court’s “limited holding,” but advocates for a recalibration of the way the court has been examining equal protection claims for over 40 years. Justice Kruger says the “threshold inquiry” of whether two groups are similarly situated “doesn’t serve much purpose [and] [w]orse, it risks harm.” Instead, she contends, courts should go directly to a determination “whether an admitted difference in treatment of two groups is justified under the law.”
The similarly-situated test risks blocking a justification analysis, Justice Kruger argues. “Interposing an unnecessary gatekeeping inquiry always raises the possibility that the gate will sometimes slam shut, when the gate shouldn’t have been there in the first place.”
The court affirms the First District, Division Five, Court of Appeal’s published opinion. It disapproves a 2019 opinion by the First District, Division One that held gravely disabled conservatees are not similarly situated with NGIs.