Tuesday, September 15, 2015

Manufacturing Consent

Michaels v. Turk, No. E060854 (D4d2 Aug. 31, 2015)

I once had a pro bono case in LA County mental health court where we were trying to get our client released from a county-imposed conservatorship. We won. It took less than half an hour hanging in that Glassell Park courtroom to recognize that the joint suffers from a severe breakdown of a functioning adversarial process. Most of the putative conservatees are represented by public defenders who don’t actually much try to win. Presumably, they believe in good faith they are acting in their clients “actual” best interestsas opposed to their stated onesby letting them stay wards of the county. In the twenty or so hours I spent sitting around waiting to be called for various matters, I probably watched more than fifty hearings. In all the time I was there, my guy was the only one to leave through the front door.

The conservatorship department is presided over by a commissioner. For that to be legit, article IV § 21 of the California State Constitution requires the litigants to consent to her jurisdiction. The consent,” however, took the form of the clerk reading a statement at the opening of court—actually, more like mumbling it really fastthat the department was presided over by a commissioner and anyone who objected needed to speak up. Of course, at the time, the gallery was mostly full of people who were asserted to be too mentally ill to make decisions for themselves. Not that it would have made much difference, but the less-than-zealous public defenders were usually out in the hallway or on the phone. And given the notorious torpidity of the department’s docket, a large fraction of those with cases on calendar hadn’t even arrived yet. Unsurprisingly, everyone “consented.”

The commissioner did a commendable job grinding though the department’s heavy docket of pretty grim work. Although she seemed kind of numb to the non-advocacy put in front of her, her rulings generally seemed right based on record presented. (After all, when my client put up a real fight—he was probably the only properly prepared witness in the history of mental heath courtshe held the county to its burden and set him free.) But the idea that all of those people had knowingly and voluntarily consented to her jurisdiction was a mockery of the concept of consent. 

Based on this opinion, it works like that in Riverside County family court too. There’s a dispute over a domestic violence restraining order. The case was presided over by a commissioner, who appears to have found that the standard for a restraining order wasn’t met, but entered one against the pro se Defendant anyway. Defendant appealed, arguing that he had not consented to the jurisdiction of a commissioner.

Plaintiff argued that there were signs posted near the courtroom warning the parties that a commissioner presided in the relevant department. But a party’s consent to a commissioner must be reflected in the record. Although there are circumstances from which consent might be implied, unless the record reflected that Defendant had read the notice and acquiesced, the commissioner had no jurisdiction to proceed. (Indeed, the Riverside local rules expressly explain that an attorney who proceeds without objection is implied to have consented, but pro se litigants like Defendant must be “asked on the record if they so stipulate.”) So in the absence of a record of consent giving rise to the commissioner’s jurisdiction, the order could not stand.


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