Filed 7/30/12




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S180612
           v.                        )
                                     )                       Ct.App. 6 H034154
CHRISTINE BARRETT,                   )
                                     )                      Santa Clara County
           Defendant and Appellant.  )                   Super. Ct. No. MH034663
____________________________________)


        Christine Barrett is an adult who has long been diagnosed with mental
retardation and other mental disorders, and who has lived in the community while
being supported and supervised by others. Because of her increasingly violent
behavior, Barrett became the subject of this proceeding to civilly commit her as a
―mentally retarded person‖ who is a ―danger‖ to herself or others. (Welf. & Inst.
Code,1 § 6500 (section 6500).)2 The People sought placement in a secure
treatment facility pursuant to the statutory scheme.

1       All further undesignated statutory references are to the Welfare and
Institutions Code.
2      Barrett suggests that ―mental retardation‖ and closely related phrases are
outmoded expressions for persons with subaverage cognitive and adaptive
functioning, and that California courts should speak only in terms of persons who
are ―developmentally disabled‖ or ―intellectually disabled.‖ A similar point is
made in the lone amicus curiae brief filed in this court, which was submitted by
Disability Rights California on behalf of itself and other entities and individuals.
The terms ―mentally retarded‖ and ―mental retardation‖ appeared throughout the
                                                          (footnote continued on next page)

                                          1
        Following a nonjury trial in which Barrett was represented by counsel, the
trial court sustained the allegations of the petition. The court ordered her
committed for one year to the State Department of Developmental Services
(Department), and otherwise approved the requested placement. The judgment
was affirmed on appeal. This court granted Barrett‘s petition for review.
        We now decide whether the Court of Appeal properly rejected Barrett‘s
claims that she was denied due process and equal protection of the law insofar as
the record does not reveal the circumstances under which she was tried by the
court, rather than by a jury. The statutory scheme does not expressly provide
either for a right to jury trial or for any related requirement that an alleged
mentally retarded person be advised of, or allowed to personally act upon, any
such right. Nevertheless, the parties do not dispute that Barrett was entitled under
longstanding equal protection principles to a jury unless a jury was validly waived.
        Critical here is that Barrett further insists the trial court was constitutionally
compelled to (1) expressly advise her that she could request a jury, and (2) obtain
her personal waiver of a jury, before holding a bench trial and deciding all


(footnote continued from previous page)

statutory scheme when the present commitment proceedings were held and the
findings under review were made. To avoid confusion, we use such original
terminology here, and cite the version of the statutory scheme applied to Barrett at
all stages of the present case. Nonetheless, we are aware that legislative
enactments and proposed amendments replace references to ―mental retardation‖
under section 6500 et seq. with such terms as ―developmental disability‖ and
―intellectual disability.‖ (See Assem. Bill No. 1472, approved by Governor, June
27, 2012 (2011-2012 Reg. Sess.); see also Sen. Amend. to Assem. Bill No. 2370
(2011-2012 Reg. Sess.) June 20, 2012.) As suggested by both Barrett and Justice
Liu‘s concurring and dissenting opinion, however, nothing in this new or pending
legislation appears on its face to concern either the right to jury trial or the
ancillary procedures at issue here.


                                            2
commitment issues itself. Because the record does not show whether such
procedures occurred here, Barrett views the commitment order as inherently
unsound and reversible per se. We disagree, and find no constitutional violation.
       Barrett‘s due process and equal protection theories share the same flawed
premise. The section 6500 procedure itself undermines Barrett‘s assumption that
persons alleged to be mentally retarded and dangerous can necessarily decide for
themselves, in a knowing and intelligent manner, whether to demand a jury at their
commitment trials. As we explain, that process is initiated, and proceeds from the
outset, on the basis of strong evidence that the individual facing commitment has
cognitive and intellectual impairments that would prevent him or her from making
a meaningful decision whether to invoke, or waive, the right to a jury trial. The
person‘s rights and interests are nonetheless protected by the state‘s statutory
obligation to provide counsel in section 6500 proceedings.
       Accordingly, consistent with closely related decisions of this court, and
given the mental competence issues addressed in section 6500 proceedings as
compared to other commitment scenarios, we conclude it is counsel who must
make the tactical decision whether to seek or waive a jury. To encumber the jury
trial right with a collateral requirement that any waiver be personally made by the
proposed committee following a formal court advisement would serve no useful
purpose in this context. This approach does not undermine the fairness of the
proceedings in a due process sense, or treat dangerous mentally retarded persons
differently from those with whom they are aligned for equal protection purposes.
We therefore will affirm the judgment.


                               I. CASE HISTORY
       On January 22, 2009, the district attorney, acting on the People‘s behalf,
filed a petition in Santa Clara County Superior Court to commit Barrett under
                                          3
section 6500. According to the petition, Barrett lived in a private residence with
staff assistance. The party responsible for her care, maintenance, and support was
the San Andreas Regional Center (Center).3 The Center‘s service coordinator,
Betty Crane, was the person who requested that the petition be filed.
       The petition further alleged that Barrett was mentally retarded and
dangerous to herself and others. On this basis, the court was asked to hold an
evidentiary hearing and to order Barrett committed to the Department for care,
custody, and treatment for a period not exceeding one year. In providing reasons
for filing the commitment petition, the district attorney relied on ―the assessment,
evaluations, reports and other documents‖ of the Center and the Department.
These materials were incorporated by reference into the petition, and were filed at
the same time in the form of a confidential exhibit.
       On the day the petition was filed, the trial court set a hearing for March 9,
2009. Pending the hearing, the court also ordered Barrett‘s interim placement
under the Department‘s care in a particular secure treatment facility.
       Counsel for both parties appeared in court on March 9. Although a court
reporter was also present, no reported proceedings occurred and no transcript was
prepared. As noted by the Court of Appeal, the only record of the hearing is a
printed minute order. It indicates, in an abbreviated handwritten note, that the
matter was continued to April 8, 2009, at 10:00 a.m., for a two-hour hearing. The
March 9 minute order contains no other substantive information.




3      The Center is one of several regional, community-based nonprofit agencies
funded and regulated by the state to serve developmentally disabled persons,
pursuant to the Lanterman Developmental Disabilities Services Act (LDDSA).
(See § 4620; see also post, at p. 11, fn. 10.)


                                          4
       On April 8, the trial court began the proceeding at the scheduled time.
Barrett and counsel for both parties were present in the courtroom. Counsel
agreed that the previous two-hour estimate accurately reflected the total amount of
time needed to present evidence and try the case. The People then called Dr.
Robert Thomas, their first and only witness, to the stand. Nothing in the reporter‘s
transcript indicates that any mention of trial by jury occurred.
       Dr. Thomas was a psychologist at the Center who qualified as an expert
witness on mental retardation, and who had examined Barrett and reviewed her
case history. He testified that Barrett, then age 27, was mentally retarded. She
had an I.Q. in the ―50‘s to 40‘s‖ — a level deemed ―moderate‖ in the sense that it
was neither mild nor severe. Dr. Thomas based this conclusion, in part, on school
records and psychological reports from early in Barrett‘s life, before she became a
client of the Center in 2001.4
       Dr. Thomas further opined that because of cognitive deficits associated
with her mental retardation, Barrett had serious difficulty controlling her behavior,
and was a danger to herself and others. This determination rested on two main
factors: (1) Barrett‘s incapacity ―to understand the complexity of her disorder and
the need for treatment,‖ and (2) her volatile and violent history, as set forth in
―incident reports‖ compiled by the Center.5

4      Dr. Thomas noted near the end of his direct examination that Barrett had
been diagnosed over the years with various mental disorders in addition to mental
retardation. They included autism, bipolar disorder, schizophrenia, and
schizoaffective disorder.
5      On cross-examination, Dr. Thomas acknowledged that other mental
disorders besides mental retardation can trigger aggression, including autism and
schizophrenia. However, in Barrett‘s case, he declined to blame her violent
outbursts either solely or primarily on any diagnosed mental disorder other than
mental retardation. While such conditions likely interacted to affect her behavior,
                                                            (footnote continued on next page)

                                           5
        Dr. Thomas explained that Barrett had lived at home with her parents until
2001. Because of physical assaults and verbal abuse against her parents, and
noncompliance with her treatment plan, Barrett was placed in a residential facility,
or group home. This facility, where Barrett stayed for five years, was well staffed
and closely monitored. However, according to Dr. Thomas, Barrett repeatedly left
the premises without proper notice and supervision, and disrupted the community
by ―threatening people‖ and acting in ―inappropriate‖ and ―self-destructive‖ ways.
Similar problems arose inside the facility, often triggering an emergency response
and psychiatric hospitalization.
        Dr. Thomas testified that, beginning in 2006, Barrett was moved into a
condominium that her parents owned. This arrangement was facilitated by support
staff trained to help persons like Barrett live independently. According to Dr.
Thomas, Barrett‘s outbursts continued. The Center documented 30 incidents in
the 18-month period before the hearing. Typically, Barrett became agitated about
personal matters, and responded by assaulting family members or staff, damaging
property, and committing certain forms of self-abuse. Dr. Thomas noted that
―furniture and pictures and all kinds of things had to be removed from her
apartment just to keep her safe.‖6

(footnote continued from previous page)

and it was difficult to distinguish between them in that sense, the ―limited
cognitive ability‖ associated with mental retardation played a central role in
causing her dangerousness. According to Dr. Thomas, it was Barrett‘s inability to
understand that she was mentally disordered and needed treatment that most
impaired her past progress and prognosis.
6      For example, in September 2008, Barrett was ―obsessing‖ at home about
her hair color when she learned her mother would arrive soon. Barrett became
upset, broke a chair and other furnishings, and was restrained by staff when she
showed aggression toward her mother. Barrett then locked herself in the
                                                          (footnote continued on next page)

                                          6
        In light of this evidence, Dr. Thomas recommended that Barrett be
committed to a particular secure treatment facility — the same one that was
serving as interim housing at the time of the hearing. He explained that it was the
least restrictive placement. Barrett‘s history showed that she could not safely
reside in either a less secure group home or an independent living situation.
        Barrett testified as the only witness on her behalf. She did not like her
current placement because, even though the people were nice and the food was
good, she could not go on outings and preferred the group home. She liked her
medication because it calmed her, but denied being mentally disordered.
        Following closing argument, the trial court found that, notwithstanding any
other disorders, Barrett was mentally retarded and dangerous under section 6500,
and that the danger she posed to herself and others was based upon, and caused by,
her mental retardation. She was committed to the Department for one year
beginning on April 8, 2009, the date of the hearing. The court designated the




(footnote continued from previous page)

bathroom, but became docile when the police arrived and took her to a psychiatric
unit for evaluation. Later that month, Barrett was crying in her bedroom when she
suddenly emerged and punched holes in the walls. She threw a glass bowl at a
window, breaking the window on the second try. Two months later, in December
2008, Barrett refused to leave home for a mental health appointment. She
threatened to harm staff, destroyed property, and purposefully scratched her face
to make it bleed. This episode triggered a 9-1-1 call and admission to a
psychiatric unit. Finally, two incidents occurred in January 2009. First, Barrett
came home upset after attending church with her parents. She assaulted staff and
was hospitalized for emergency psychiatric care. Later that month, at the Center,
Barrett cursed and angrily announced that she had changed her name. She
threatened to harm staff with a knife, and then entered the bathroom and scratched
her arm.


                                           7
secure treatment facility then being used as interim housing as the least restrictive
and most appropriate placement.7
       On appeal, Barrett focused on the lack of a jury at her commitment trial.
Based on the premise that she had a constitutional right to a jury decision on the
allegations of the petition, Barrett argued that due process and equal protection
principles were violated insofar as the record did not show that the trial court
advised her of the right to a jury, or elicited a valid waiver of that right before
holding a bench trial. She relied on two cases — both from the Third District
Court of Appeal — imposing these requirements in section 6500 proceedings.
(People v. Alvas (1990) 221 Cal.App.3d 1459 (Alvas); see id. at pp. 1463-1464
[recognizing equal protection right to personal jury advisement like the one given
to dangerous mentally ill persons under § 5302 of the Lanterman-Petris-Short
(LPS) Act], pp. 1464-1465 [concluding that jury waiver is uninformed and invalid
for due process purposes absent an express personal advisement]; accord, People
v. Bailie (2006) 144 Cal.App.4th 841, 847 (Bailie) [reaffirming Alvas on equal
protection grounds, and declining to reexamine Alvas‘s due process analysis].)


7      The trial court scheduled a followup hearing in July 2009, to review the
complex nature of Barrett‘s diagnosed disorders, and to ensure the best placement
and treatment options over the long term. The court contemplated that, in the
ensuing three-month period, either the Center or Barrett‘s treatment facility would
conduct a full evaluation of her psychiatric history. No further testing was
ordered. The record contains no other information about the July 2009 hearing or
about any other trial court proceeding after the April 2009 commitment hearing.
Indeed, we infer that the original commitment order ―expire[d] automatically‖ by
its own terms one year after it was made (§ 6500), and that it therefore is
technically moot. Because the issues are of recurring importance and properly
presented by the parties, we decide the case on the merits. (See, e.g.,
Conservatorship of John L. (2010) 48 Cal.4th 131, 142, fn. 2 (John L.), and cases
cited; Conservatorship of Hofferber (1980) 28 Cal.3d 161, 167, fn. 2 (Hofferber),
and cases cited.)


                                           8
       Here, however, a unanimous Sixth District Court of Appeal panel rejected
the Third District‘s approach as an aberrant departure from settled law. The
instant Court of Appeal observed that except for Alvas, supra, 221 Cal.App.3d
1459, and Bailie, supra, 144 Cal.App.4th 841, California courts have never placed
any procedural conditions on the manner in which the defense demands or
declines a jury under section 6500. This approach warranted rejection of Barrett‘s
constitutional claims, the court said, because her competence on jury trial matters
was in doubt given the nature of the issues raised under section 6500. The Court
of Appeal further reasoned that the failure of the defense to request a jury
generally waives the right, and that the apparent absence of such a request here
precluded a finding that a jury had been wrongly denied. The judgment was
affirmed. Barrett sought review.
                       II. STATUTORY BACKGROUND
       California has no fewer than nine involuntary commitment procedures that
may apply to persons who have various mental problems, and who pose a threat to
their own welfare or to the safety of others. Some of these laws, including section
6500 et seq., operate in a manner largely independent of the criminal justice
system. (See §§ 4825 [developmentally disabled persons under the LDDSA],
5000 et seq. [mentally ill persons under the LPS Act].) Others apply depending on
whether a criminal prosecution has occurred. (See § 3000 et seq. [narcotic addicts
whether or not they have been convicted of crimes].) Certain accused criminals
may receive a mental health commitment in lieu of conviction and punishment.
(See Pen. Code, §§ 1026-1027 [defendants acquitted by reason of insanity], 1367
et seq. [defendants found mentally incompetent].) Also, dangerously disordered
offenders may be held upon discharge by the juvenile authorities (see Welf. &
Inst. Code, § 1800 et seq.), or after serving a prison term (see § 6600 et seq.


                                          9
[sexually violent predators]; Pen. Code, § 2960 et seq. [mentally disordered
offenders]).
       The statutory scheme applied here has been in effect for over 40 years.8
The basic rule is that ―no mentally retarded person may be committed‖ to the
Department ―unless he or she is a danger to himself or herself, or others.‖
(§ 6500.) Dangerousness includes a finding of incompetence to stand trial under
Penal Code section 1367 et seq., for accused criminals in certain serious and
violent cases. (Welf. & Inst. Code, § 6500.) For mentally retarded persons under
the care or treatment of a state hospital or other facility when the petition is filed,
proof of a recent overt act is not needed to find them to be a danger to themselves
or others. (Ibid.)
       A section 6500 proceeding commences under certain conditions. First,
designated persons ―may request‖ that a petition for commitment be filed by an
―authorized‖ official, as discussed further below. (§ 6502.)9 In general,
individuals allowed to make this ―request‖ are those charged with the support of
the mentally retarded person, are representatives of the juvenile or criminal justice

8      See former section 6500.1, added by Statutes 1970, chapter 351, section 3,
page 765, and renumbered as section 6500 and amended by Statutes 1978, chapter
1319, section 2, page 4316; see also sections 6502-6512 (exclusive of § 6504.5),
added by Statutes 1967, chapter 1667, section 37, page 4107, operative July 1,
1969.
9      Section 6502 states, in pertinent part: ―The following persons may request
the person authorized to present allegations pursuant to Section 6500 to file a
petition for commitment: [¶] (a) The parent, guardian, conservator, or other
person charged with the support of the mentally retarded person. [¶] (b) The
probation officer. [¶] (c) The Youth Authority. [¶] (d) Any person designated
for that purpose by the judge of the court. [¶] (e) The Director of Corrections. [¶]
(f) The regional center director or his or her designee. [¶] The request shall state
the petitioner‘s reasons for supposing the person to be eligible for admission
thereto, and shall be verified by affidavit.‖


                                           10
system, are designated by the court, or — as in the present case — serve as the
director of a regional center, or as his or her designee. (§ 6502.)10 This provision
appears to assume that the requesting party is familiar with the person sought to be
committed, or has access to relevant information about the person‘s condition and
history. Indeed, any ―request‖ made under section 6502 must document or
otherwise state ―reasons‖ for asserting that the person is eligible for commitment.
Any request containing such information also must be ―verified by affidavit.‖
(Ibid.)
          Second, allegations that a person is mentally retarded and dangerous are
presented to the superior court in petition form by either the district attorney or
county counsel, as determined by the county board of supervisors. (§ 6500; see
§ 6502.) Where a petition is filed, the court appoints the director of the regional
center, or a designee, to examine the person and submit a written report.
(§ 6504.5.)11 The report must include an evaluation of the person, as well as a

10     Under the LDDSA, regional centers consist of a network of ―private
nonprofit community agencies‖ (§ 4620, subd. (b)) with which the state, through
the Department, contracts to provide lifetime support directly to developmentally
disabled persons and their families. (Id., subd. (a); see § 4512, subd. (a) [defining
― ‗developmental disability‘ ‖ to include mental retardation].) Regional centers
assess clients by reviewing their diagnostic history, and providing or procuring a
wide range of tests and evaluations. (See §§ 4642, 4643.) In each case, the center
establishes both a ― ‗planning team‘ ‖ (§ 4512, subd. (j)) and an ―individual
program plan‖ identifying goals and needs (§ 4646). A high priority is ―direct
service coordination‖ (§ 4640.6, subd. (a)), in which services are obtained from
providers, vendors, and contractors. (See §§ 4640.7, 4647, 4648.) A regional
center employee, or ― ‗service coordinator,‘ ‖ prepares individual program plans,
secures needed services, and provides placement and monitoring support.
(§ 4640.6, subd. (d); see Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 487-
488.)
11     Section 6504.5 states, in pertinent part: ―Wherever a petition is filed [under
section 6500 et seq.], the court shall appoint the director of a regional center for
                                                            (footnote continued on next page)

                                           11
recommendation for placement both on an interim basis pending the evidentiary
hearing and after any commitment decision is made. (§ 6504.5, see §§ 6506,
6509, subd. (a).) Relevant factors include the least restrictive residential option
needed to achieve treatment goals and maintain public safety. (§ 6504.5.) A
separate report along similar lines may be submitted by any developmental center
recommended for placement in the regional center report. (Ibid.)
        Within a limited time after the petition is filed, the court must set an
evidentiary hearing. (§ 6503; see § 6504 [notice of hearing].) A suitable interim
placement may be ordered pending the hearing, with consideration given to the
reports and recommendations of the regional center and any developmental center
involved in the case. Again, relevant concerns include the least restrictive
arrangement that promotes treatment and protects public safety. (§ 6506.)



(footnote continued from previous page)

the developmentally disabled established under [section 4500 et seq.], or the
designee of the director, to examine the alleged mentally retarded person. [¶]
Within 15 judicial days after [such] appointment, the regional center director or
designee shall submit to the court in writing a report containing his or her
evaluation of the . . . person. The report shall contain a recommendation of a
facility or facilities in which the . . . person may be placed. [¶] The report shall
include a description of the least restrictive residential placement necessary to
achieve the purposes of treatment. . . . [C]onsideration shall be given to public
safety. If placement into or out of a developmental center is recommended, the
regional center director or designee simultaneously shall submit the report to the
executive director of the developmental center or his or her designee. The
executive director . . . or his or her designee may, within 15 days of receiving the
regional center report, submit to the court a written report evaluating the ability of
the developmental center to achieve the purposes of treatment [and] to protect the
public health and safety from . . . the person‘s known behaviors. [¶] The
[foregoing] reports . . . shall also address suitable interim placements . . . [under]
Section 6506.‖


                                           12
       The process of hearing and commitment includes substantial procedural
safeguards. Thus, for persons who lack their own attorney, the court ―shall
immediately appoint‖ counsel to represent them. (§ 6500.)12 The court is also
directed to ―inquire‖ into the person‘s condition, and to thereby enhance the
availability of evidence on this issue. (§ 6507.) Thus, the court may subpoena
qualified physicians and psychologists to examine the person and to testify about
his or her ―mentality.‖ (Ibid.) The attendance of other witnesses also may be
compelled. (Ibid.; see § 6508 [authorizing witness fees and expenses].)
       The requisite findings of mental retardation and dangerousness allow the
person to be ―committed to the [Department] for suitable treatment and
habilitation services.‖ (§ 6509, subd. (a).) The same statute requires selection of
the ―least restrictive residential placement‖ to meet these goals, identifies a range
of available facilities (e.g., state hospitals and community care centers), and
permits other appropriate dispositions (e.g., conditional release into the
community) that do not risk the welfare of the person or the public. (Ibid.)
Specific procedures guide the court in selecting an appropriate placement,
including consideration of the regional center report submitted under section
6504.5. (§ 6509, subd. (a).)
       An order of commitment ―expire[s] automatically one year after‖ it is
made. (§ 6500.) Subsequent commitments for additional periods may be sought




12     Section 6500 states, in pertinent part: ―In any proceedings conducted under
the authority of [section 6500 et seq.], the alleged mentally retarded person shall
be informed of his or her right to counsel by the court, and if the person does not
have an attorney for the proceedings, the court shall immediately appoint the
public defender or other attorney to represent him or her.‖


                                          13
for persons who remain mentally retarded and dangerous. Recommitment
procedures are ―the same as with an initial petition for commitment.‖ (Ibid.)
                                 III. DISCUSSION
       Preliminarily, no statute by its plain terms authorizes a jury to determine
whether someone is mentally retarded and dangerous for purposes of a section
6500 commitment. The lack of any jury trial provision distinguishes the statutory
procedures regulating section 6500 proceedings from most other involuntary
commitment schemes, as we discuss further below.
       Nevertheless, here, as in the Court of Appeal, there is no dispute that
someone facing commitment under section 6500 et seq. has the right to trial by
jury on the allegations of the petition. Neither party rests this premise on any
provision of the federal or state Constitution that directly or expressly grants the
right to a jury in criminal or civil trials.13 Rather, they invoke a long and
unbroken line of California appellate court cases holding or assuming — largely
on the basis of federal and state equal protection principles affecting fundamental
interests — that persons alleged to be mentally retarded and dangerous cannot be
denied a jury altogether where jury trials are granted by statute to persons alleged
to be mentally impaired and dangerous under comparable commitment laws.




13      See, e.g., the Sixth Amendment to the United States Constitution (―In all
criminal prosecutions, the accused shall enjoy the right to . . . an impartial jury‖);
article I, section 16 of the California Constitution (―Trial by jury is an inviolate
right and shall be secured to all, but in a civil cause three-fourths of the jury may
render a verdict. A jury may be waived in a criminal cause by the consent of both
parties expressed in open court by the defendant and the defendant‘s counsel. In a
civil cause a jury may be waived by the consent of the parties expressed as
prescribed by statute‖).


                                          14
Thus, persons like Barrett ―are entitled to jury trial upon request.‖ (O‘Brien v.
Superior Court (1976) 61 Cal.App.3d 62, 69.)14
       We now assess the adequacy of this basic rule, and decide whether
additional adjunct procedures must be followed in open court for a valid nonjury
trial to occur. Each of Barrett‘s theories under the due process and equal
protection clauses of the federal and state Constitutions is examined in turn.
A. Due Process Claim
       Barrett contends it is not sufficient for federal and state due process
purposes that the courts have implied a right to trial by jury to protect the interests
at stake in section 6500 proceedings. She claims the jury trial option needs its
own supplemental layer of support. In other words, the decision whether to try the
case to the court or to a jury belongs solely to the person facing commitment, and
it must be made personally, not through counsel. Under this view, any waiver of a
jury trial is not knowing and intelligent, and is invalid, unless the court first
expressly advises the person of that right. Because the record shows no such



14     See People v. Wilkinson (2010) 185 Cal.App.4th 543, 547; People v.
Sweeney (2009) 175 Cal.App.4th 210, 217-218; Bailie, supra, 144 Cal.App.4th
841, 844-847; Alvas, supra, 221 Cal.App.3d 1459, 1462-1463; Money v. Krall
(1982) 128 Cal.App.3d 378, 398 (Money); In re Watson (1979) 91 Cal.App.3d
455, 459-460; see also In re Hop (1981) 29 Cal.3d 82, 92-93 (Hop) (holding that
developmentally disabled adults who are incapable of protesting or consenting to
hospitalization by third parties under § 4825, and who have no statutory hearing
rights upon admission, have equal protection hearing rights that include ―jury trial
on demand,‖ consistent with jury trial statutes in other commitment schemes); see
Hop at pp. 93-94 (noting that similar constitutional jury trial rule applies in § 6500
proceedings under O‘Brien v. Superior Court, supra, 61 Cal.App.3d 62, 68-69); In
re Gary W. (1971) 5 Cal.3d 296, 303-308 (Gary W.) (same equal protection rule as
to dangerously disturbed persons held for treatment upon discharge from juvenile
system under § 1800 et seq., and who had no statutory jury trial right at the time).


                                           15
express advisement and personal waiver here, Barrett insists a structural defect in
the proceeding occurred, and that automatic reversal of the judgment is compelled.
       The People reply that persons alleged to be mentally retarded should be
treated no differently from defendants in certain other kinds of commitment trials
who, because of their alleged mental impairments, lack sufficient capacity to
personally understand and implement the jury trial right, or to override any
contrary decision by counsel. Alluding to the rules generally applicable in civil
cases, the People insist a waiver meets due process requirements where, as here,
the record does not show that counsel, who presumably made an informed and
competent decision in this regard, requested a jury before the section 6500 trial
began.15 The People have the better view.
       This court observed long ago that section 6500 proceedings are not criminal
in nature, and that commitment under this scheme, though involuntary, is not
punishment. (Cramer v. Tyars (1979) 23 Cal.3d 131, 137 [denying alleged
mentally retarded and dangerous persons an absolute right under § 6500 similar to
the one held by criminal defendants not to be called as a witness].) ―The sole state

15      Code of Civil Procedure section 631, subdivision (a) states: ―The right to a
trial by jury as declared by Section 16 of Article I of the California Constitution
shall be preserved to the parties inviolate. In civil cases, a jury may only be
waived pursuant to subdivision (d).‖ Under subdivision (d) of the same section,
―[a] party waives trial by jury in any of the following ways: [¶] (1) By failing to
appear at the trial. [¶] (2) By written consent filed with the clerk or judge. [¶] (3)
By oral consent, in open court, entered in the minutes. [¶] (4) By failing to
announce that a jury is required, at the time the cause is first set for trial, if it is set
upon notice or stipulation, or within five days after notice of setting if it is set
without notice or stipulation. [¶] (5) By failing to deposit with the clerk, or judge,
advance jury fees as provided in subdivision (b). [¶] (6) By failing to deposit with
the clerk or judge, at the beginning of the second and each succeeding day‘s
session, the sum provided in subdivision (c).‖ (Code Civ. Proc., § 631, subd. (d),
italics added.)


                                            16
interest, legislatively expressed, is the custodial care, diagnosis, treatment, and
protection of persons who are unable to take care of themselves and who for their
own well being and the safety of others cannot be left adrift in the community.‖
(Cramer v. Tyars, at p. 137.)
       But civil commitment for any purpose can affect liberty and other vital
interests. (Addington v. Texas (1979) 441 U.S. 418, 425-426 (Addington); People
v. Allen (2008) 44 Cal.4th 843, 862 (Allen).) Hence, due process safeguards apply
whether the proceeding concerns mentally retarded and dangerous persons (e.g.,
Heller v. Doe (1993) 509 U.S. 312, 330-333 (Heller)), or persons suffering from
other dangerous disorders needing care and treatment. (E.g., Addington, at
pp. 420-421, 425-427 [mental illness in the form of paranoid schizophrenia];
Moore v. Superior Court (2010) 50 Cal.4th 802, 810, 815 (Moore) [diagnosed
mental disorder qualifying convicted sex offender as ―sexually violent predator‖];
John L., supra, 48 Cal.4th 131, 142, 150 [grave disability affecting welfare of
mentally disordered person].)
       Notably, the procedural safeguards required in this context are flexible
(People v. Tilbury (1991) 54 Cal.3d 56, 68 (Tilbury)), and the quantum and quality
of the process due depends upon the nature and purpose of the challenged
commitment. (John L., supra, 48 Cal.4th 131, 150.) In making this
determination, the courts weigh, assess, and consider various factors affected by
the disputed procedure. Distilled, these considerations involve (1) the various
private interests at stake, (2) any competing state or public concerns, and (3) the
potential risk of an erroneous or unreliable outcome. (Ibid.; see Moore, supra, 50
Cal.4th 802, 819; Allen, supra, 44 Cal.4th 843, 862-863; Conservatorship of
Ben C. (2007) 40 Cal.4th 529, 538-539 (Ben C.).)
       Barrett treats the first factor, involving her own due process interests, as
salient here. (See Ben C., supra, 40 Cal.4th 529, 538.) She observes, and we
                                          17
agree, that section 6500 proceedings potentially involve a significant restraint on
liberty. Whether the requisite findings of mental retardation and dangerousness
are made by the court or a jury, the person is ordered committed to the Department
for up to one year. Recommitment may be sought if the person‘s condition has not
materially changed during that time. Although the least restrictive placement is
required under the particular circumstances, several statutory options involve
custodial control. They include confinement in a secure facility to treat the
mentally retarded person and to protect the public from the dangers that he or she
presents. (See §§ 6500, 6509, subd. (a).) Such was the case with Barrett.
       In addition, we have said that persons facing commitment have a
― ‗dignitary interest‘ ‖ in being informed of the ― ‗nature, grounds, and
consequences‘ ‖ of the proceeding, and in presenting ― ‗their side of the story‘ ‖
before a determination is made. (Allen, supra, 44 Cal.4th 843, 862; see id. at
p. 868 [identifying statutory procedures that protect due process dignitary interests
of alleged sexually violent predators under § 6600 et seq.]; accord, Moore, supra,
50 Cal.4th 802, 819, 824.) It bears emphasis that Barrett does not highlight this
factor, or identify any specific flaws in the statutory scheme in this regard. (See
§§ 6502 [petition must be supported by verified ―request‖ from informed party,
and must state ―reasons‖ for commitment], 6504 [notice of hearing], 6504.5
[mental examination and written report required by regional center director or
designee], 6500 [right to counsel], 6507 [availability of expert testimony and other
witnesses on mental retardation].)
       As Barrett suggests, the foregoing interests have been deemed sufficiently
fundamental to implicate certain constitutional jury trial concerns in commitment
cases, at least in those relatively few instances in which a right to trial by jury has
not been legislatively prescribed. It does not follow, however, that the jury trial
option implied by the courts in section 6500 proceedings is illusory unless
                                          18
accompanied by the ancillary procedures Barrett seeks. Nor do such procedures
necessarily amount to independent constitutional rights applicable in every case.
Instead, their due process availability depends, in a particular instance, on a
careful balancing of the public and private interests described above.
       In this regard, Barrett fails to consider, and we must now address, the
special character of the commitment proceeding at issue. This consideration
undermines her due process claim.
       The controlling principles appear in our unanimous decision in People v.
Masterson (1994) 8 Cal.4th 965 (Masterson). There, the defendant was charged
by felony complaint with violent crimes. Before the preliminary hearing, the
magistrate declared a doubt as to the defendant‘s mental competence to stand trial.
(See Pen. Code, § 1367.) The matter was sent to the superior court for a
competence hearing.
       For the hearing, a panel of 12 jurors was chosen to hear evidence and
decide competence. Shortly before the presentation of evidence was set to begin,
counsel for both sides and the defendant were present in court. However, only 11
jurors appeared. The 12th juror apparently was missing. The prosecutor and
defense counsel agreed that the matter could be tried by a jury consisting of the 11
panelists in court at the time. When asked by the trial court whether he understood
this stipulation, the defendant made clear that he rejected its terms. He told the
court that he would ― ‗rather have 12 jurors.‘ ‖ (Masterson, supra, 8 Cal.4th 965,
967.) When asked pointblank if he objected to the stipulation allowing an 11-
person jury, the defendant said, ― ‗Yes.‘ ‖ (Id. at p. 968.)
       Over the defendant‘s objection, and consistent with counsel‘s approach, the
competence trial was held in front of only 11 jurors. They unanimously found the
defendant mentally competent. A different jury then convicted him of the charged
crimes. On appeal, the judgment was reversed on the ground that use of an 11-
                                          19
person jury to decide competence over the defendant‘s personal objection
constituted prejudicial error. This court reversed the Court of Appeal.
       The critical question in Masterson was whether defense counsel could
―waive the right to a jury trial entirely,‖ even if the defendant objected.
(Masterson, supra, 8 Cal.4th 965, 968.) If so, counsel would necessarily have the
lesser authority, so to speak, of agreeing to a jury of fewer than the usual 12
persons. (Id. at p. 969; see Cal. Const., art. I, § 16; Code Civ. Proc., § 220.)
       Masterson first emphasized that in all cases, civil and criminal, ― ‗a party‘s
attorney has general authority to control the procedural aspects of the litigation
and, indeed, to bind the client in these matters . . . .‘ ‖ Counsel, not the client, ― ‗is
captain of the ship.‘ ‖ (Masterson, supra, 8 Cal.4th 965, 969.)
       Of course, an exception to this broad rule exists in criminal cases in which
the defendant has a state constitutional right to a jury trial that can only be
expressly and personally waived. (Masterson, supra, 8 Cal.4th 965, 969, citing
Cal. Const., art. I, § 16, & People v. Ernst (1994) 8 Cal.4th 441.) Masterson
observed, however, that a mental competence proceeding, though a byproduct of
the underlying criminal prosecution, is not itself a criminal action in which the
state constitutional requirement of an express personal waiver applies. Nor is it a
civil action. It is a ― ‗special proceeding‘ ‖ in which the right to trial by jury is
wholly statutory. (Masterson, at p. 969; see Pen. Code, § 1369, subds. (a)-(f)
[describing mental examinations, evidence, argument, and instructions in any
―trial by court or jury of the question of mental competence‖].)
       Against this backdrop, Masterson concluded that it ―need not decide‖
whether the statutory nature of the jury trial right in a criminal mental competence
proceeding dictates the circumstances under which it can be waived, i.e., whether
there are some statutory rights that counsel may not waive on the client‘s behalf or
over his objection. (Masterson, supra, 8 Cal.4th 965, 970.) Rather, the validity of
                                           20
counsel‘s decision to dispense with a 12-person jury — like the larger question
whether to have a jury at all — rested primarily upon ―the nature of competency
proceedings‖ and the issues addressed therein. (Id. at p. 971.)
       Masterson then made the following key point: ―The sole purpose of a
competency proceeding is to determine the defendant‘s present mental
competence, i.e., whether the defendant is able to understand the nature of the
criminal proceedings and to assist counsel in a rational manner. [Citations.]
Because of this, the defendant necessarily plays a lesser personal role in the
proceeding than in a trial of guilt. How can a person whose competence is in
doubt make basic decisions regarding the conduct of a proceeding to determine
that very question?‖ (Masterson, supra, 8 Cal.4th 965, 971.)
       In answering this question adversely to the defendant, Masterson relied
heavily on People v. Hill (1967) 67 Cal.2d 105 (Hill). In Hill, after both the trial
court and defense counsel expressed doubt about an alleged felon‘s mental
competence, a hearing was held in which the defendant received new counsel. For
reasons not clear from record, the competence issue was tried by the court, not a
jury. The trial court found the defendant competent and he was later tried and
convicted of the charged crimes. Ultimately, in Hill, this court rejected the
defendant‘s claim that his convictions should be reversed because, in the
competence proceeding, he had not personally waived a jury, or been advised
either by the court or counsel of his right to request a jury trial.
       As noted in Masterson, supra, 8 Cal.4th 965, 971, this court made clear in
Hill, supra, 67 Cal.2d 105, 114, that there is ―no duty in a judge‖ to advise the
defendant about his jury trial right in a mental competency proceeding, at least
where he or she is represented by counsel. Also, Masterson observed, when the
preliminary evidence is sufficient to trigger a mental competence hearing, ― ‗it
should be assumed that [the defendant] is unable to act in his own best interests.
                                           21
In such circumstances counsel must be free to act even contrary to the express
desires of his client.‘ ‖ (Masterson, at p. 971, quoting Hill, at p. 115, fn. 4.)
According to Masterson, it is settled that, ― ‗as a matter of tactics counsel may,
without consulting defendant, waive defendant‘s statutory right to demand that a
jury decide his competence.‘ ‖ (Masterson, at p. 972, quoting People v. Samuel
(1981) 29 Cal.3d 489, 496 [summarizing Hill].)
       Accordingly, Masterson held that ―counsel may waive the right to a jury
trial in a competency proceeding, and the court need not advise the defendant of
that right.‖ (Masterson, supra, 8 Cal.4th 965, 972.) Hence, Masterson concluded,
no error occurred insofar as counsel stipulated to a jury of 11 persons. It also
made no difference that the defendant in Masterson had personally opposed the
stipulation in open court. In light of the initial doubts expressed about his mental
competence (which the 11-person jury did not sustain), the defendant could not
―veto‖ counsel‘s professional judgment or decisional authority in jury trial
matters. (Id. at p. 973.)16


16      At one point, Masterson, supra, 8 Cal.4th 965, 972, linked its assumptions
about a criminal defendant‘s limited capacity to play a personal role in the
competence hearing to what prior cases had called a ― ‗prima facie showing‘ ‖ of
incompetence. More accurately, the Legislature contemplates that, in the
underlying criminal case, the trial court has entertained a ―doubt‖ on competence
(Pen. Code, § 1368, subd. (a)) and/or counsel has expressed a similar ―belie[f].‖
(Id., subd. (b).) Because due process bars any criminal defendant from being tried
while mentally unsound, a competence hearing is required if ―substantial
evidence‖ raises a ― ‗reasonable doubt‘ ‖on the issue. (People v. Lawley (2002) 27
Cal.4th 102, 131, and cases cited.) Of course, different procedures and formalities
accompany a Welfare and Institutions Code section 6500 matter, which does not
necessarily arise out of, or have any connection to, a criminal case. This does not
mean, however, that before any section 6500 trial, no substantial doubts have been
raised about the person‘s cognitive condition, or that no evidentiary support for the
allegations of mental retardation exists. As we shall explain, a section 6500
                                                             (footnote continued on next page)

                                           22
        Not surprisingly, this court has determined that persons who are mentally
impaired for reasons other than those present in Masterson, supra, 8 Cal.4th 965,
also cannot ― ‗ ―act in [their] own best interests‖ ‘ ‖ when committed. (Id. at
p. 971.) (See, e.g., Hop, supra, 29 Cal.3d 82, 90-91 [developmentally disabled
adult too incompetent to admit herself to a mental hospital was not competent to
protest or consent to hospitalization by third parties under the LDDSA, § 4825, for
purposes of determining the voluntariness of the latter process]; Thorn v. Superior
Court (1970) 1 Cal.3d 666, 674-675 [persons with acute mental disorders
requiring involuntary 14-day treatment under the LPS Act, § 5250, lack the
capacity to comprehend their statutory rights, or to knowingly decide whether or
not to exercise them, and thus require the assistance of counsel].)
        Similar logic applies here. No definition of mental retardation appears in
section 6500 or elsewhere in the statutory scheme. However, the Legislature has
made clear under a neighboring law, the LDDSA, that mental retardation — like
cerebral palsy, epilepsy, and autism — constitutes a ― ‗[d]evelopmental
disability.‘ ‖ (§ 4512, subd. (a).) As such, the condition ―originates before an
individual attains age 18 years, continues, or can be expected to continue,
indefinitely, and constitutes a substantial disability for that individual.‖ (Ibid.)
        More to the point, it is understood for section 6500 commitment purposes
that mental retardation involves ― ‗ ―significantly subaverage general intellectual
functioning existing concurrently with deficits in adaptive behavior,‖ and
appearing in the ―developmental period.‖ ‘ ‖ (Money, supra, 128 Cal.App.3d 378,


(footnote continued from previous page)

proceeding begins, and commitment and placement hearings occur, based on
verified information and mental evaluations from interested and informed parties.



                                           23
397, italics added [using ―generally accepted technical meaning‖ of mental
retardation to hold § 6500 is not unconstitutionally vague]; accord, Cramer v.
Gillermina R. (1981) 125 Cal.App.3d 380, 387-388; see Heller, supra, 509 U.S.
312, 321-325 [accepting premise of Kentucky commitment law, in dispute over
constitutional standard-of-proof requirements, that mental retardation is a
permanent developmental and learning disability arising before adulthood].)
       Of course, as Barrett suggests, a diagnosis of mental retardation can cover a
range of intellectual deficits and behavioral phenomena. (Money, supra, 128
Cal.App.3d 378, 397.) Still, the significant cognitive and intellectual deficits that
the condition entails, which appear early in life and never recede, affect the ability
to ―make basic decisions‖ regarding the conduct of the section 6500 proceeding.
(Masterson, supra, 8 Cal.4th 965, 971.) Such an individual thus plays a limited
―personal role‖ in the case, and must rely on counsel to decide all tactical and
procedural matters, such as whether to exercise the jury trial right. (Ibid.)
       Applying these circumstances to the due process principles discussed
above, we disagree with Barrett that ―the private interests at stake‖ play a
predominant or dispositive role in the analysis. (Allen, supra, 44 Cal.4th 843,
863.) We cannot ignore limits in a section 6500 proceeding on the person‘s ability
to comprehend and control procedural matters, including the decision whether to
exercise the right to a jury trial. It follows that the collateral procedures Barrett
seeks, involving an express advisement and personal waiver, would have little
effect on enhancing either the jury trial right itself or the vital interests it protects.
Hence, these factors do not weigh in favor of finding a constitutional violation to
the extent the requested procedures were not used at her commitment trial.
       Barrett further suggests that such a conclusion violates due process because
it improperly ―presumes‖ that a person is mentally retarded before the fact finder
has decided the issue. Again, we are not persuaded. As we explain, no section
                                            24
6500 proceeding is brought or pursued in an evidentiary vacuum or without
competent support.
       First, the filing of a section 6500 petition is requested by a responsible and
interested party (e.g., parent, conservator, correctional or probation official, or
regional center director), who presents specific information (reasons) for
supposing that the person is mentally retarded and dangerous, in need of treatment,
and eligible for commitment. The significance of this request, and its role in
providing a foundation for the petition and commitment process, is underscored by
the verification requirement. (§ 6502.) Here, the petition alleged that a request for
commitment was duly made by the Center, which provided Barrett with regular
care and support. In the process, the Center submitted assessments, evaluations,
and reports necessary to support the allegations that Barrett was mentally retarded
and dangerous. These documents were incorporated by reference into the petition
and attached as an exhibit for the court‘s confidential use in the section 6500 case.
       Second, where a section 6500 petition is filed, the trial court is entitled to a
written report prepared by, or at the behest of, the director of the regional center,
following an examination of the alleged mentally retarded person. (§ 6504.5.)
Regional centers specialize in assessing and assisting mentally retarded and other
developmentally disabled persons on an individual basis. (See ante, at p. 11,
fn. 10.) Thus, the regional center report obviously serves as a professional pretrial
evaluation of the person‘s history, condition, and behavior, and includes informed
recommendations on treatment and placement, including any interim placement
pending the hearing. According to the petition here, the Center supplied
assessments, evaluations, and reports about Barrett in seeking to commit her as
mentally retarded and dangerous under section 6500.
       In light of these principles and authorities, we conclude that someone like
Barrett, who is alleged to be mentally retarded and dangerous under section 6500,
                                          25
is not in a position to personally assert or waive the right to jury trial, to
sufficiently comprehend the jury trial advisement, or to override the views of
counsel on the subject. Sole control over such tactical and procedural decisions
rests with counsel, whether or not the client has been consulted or objects.
Moreover, absent any requirement of a personal waiver, the person facing
commitment has no need for an express court advisement of the right to request a
jury trial. Thus, no fundamental interest requires us to hold that the nonjury trial
in this case violated Barrett‘s due process rights insofar as the record does not
show that she personally declined a jury or was told of the right to request one.
       We also agree with the People‘s related suggestion that the defense must
affirmatively and timely request a jury trial, and that the apparent failure to do so,
reflected by the lack of evidence in the record that such a request was made,
results in a valid and enforceable waiver. (See ante, at p. 16, fn. 15 [Code Civ.
Proc, § 631, subd. (d)].) As noted, a statutory right to counsel exists under
Welfare and Institutions Code section 6500. Counsel is presumed competent and
informed as to applicable constitutional and statutory law. This presumption
necessarily includes the defense right to seek a jury trial in a section 6500
proceeding, regardless of any court advisement. Counsel also can be expected,
where necessary or advisable, to consult with the client about jury trial concerns.
(See John L., supra, 48 Cal.4th 131, 154-156 [due process claim rejected on the
basis of similar assumptions that counsel consulted with the client in an LPS Act
conservatorship proceeding under § 5350, and knowingly entered a binding waiver
of any presence and trial rights by informing the court of the client‘s consent].) It
follows that where no defense request for a jury trial appears on the record, we can
properly infer that this omission and the ensuing bench trial were the product of an
informed tactical choice. Counsel has absolute authority to bind the client. (See


                                           26
Masterson, supra, 8 Cal.4th 965, 972-973.) No due process interest is served by
requiring counsel to expressly confirm any waiver of a jury trial in open court.
       We further reject the contrary analysis in Alvas, supra, 221 Cal.App.3d
1459, 1464-1465, on which Barrett relies. In Alvas, the Court of Appeal held that
a due process violation occurs, and that a section 6500 commitment following a
nonjury trial is invalid, when the record fails to show that the person being
committed received an express advisement and personally waived the right to a
jury trial. Alvas emphasized the need for a knowing and intelligent waiver of that
right. In doing so, however, Alvas ignored the factors we deem most relevant —
the individual‘s limited ability to personally make a jury trial decision, counsel‘s
sole authority to do so, and the lack of any need for a jury trial advisement in this
regard. Insofar as People v. Alvas, supra, 221 Cal.App.3d 1459, is inconsistent
with these conclusions, it is disapproved.
       Finally, Barrett suggests that, at the very least, only the most profound
cognitive impairments should prevent someone undergoing a section 6500
proceeding from being allowed to personally make the jury trial decision
following a court advisement. She seems to envision a cumbersome process in
which the court holds (1) a pretrial evidentiary hearing on whether the person is so
mentally retarded that counsel must handle all jury trial issues, and (2) a full-
blown trial in which the fact finder (judge or jury) decides whether the person is so
mentally retarded and dangerous as to warrant commitment.
       However, when assessing competing due process concerns, courts are not
blind to the ― ‗administrative burdens‘ ‖ and ―practical difficulties‖ of demanding
new procedures. (Moore, supra, 50 Cal.4th 802, 828, quoting Allen, supra, 44
Cal.4th 843, 867; see, e.g., Tilbury, supra, 54 Cal.3d 56, 69 [noting state‘s due
process interest ―in avoiding the cost of unnecessary jury trials‖ in hearings for
180-day outpatient placements for insanity acquittees under Pen. Code, § 1026.2].)
                                          27
No statute guides the screening procedure suggested here, including the standards
of mental retardation that might apply at each phase. To the extent significant
overlap exists, we are reluctant to require duplicative hearings in the context of the
compact timeframe in which one-year commitments, and recommitments, occur.
       Considering all of the relevant factors, we reject Barrett‘s due process
challenge to her nonjury trial. Nothing indicates that a valid waiver of her right to
trial by jury did not occur.
B. Equal Protection Claim
       Barrett argues that federal and state equal protection principles require
section 6500 proceedings to involve the same jury trial safeguards that apply under
the LPS Act to proceedings in which already confined patients who pose a
―demonstrated danger‖ as a result of ―mental disorder or mental defect‖ may be
retained for a further 180 days of intensive custodial treatment. (§ 5300, subds.
(a)-(c); see § 5300 et seq. [postcertification procedures for imminently dangerous
persons].) Specifically, under section 5302, the superior court must give an
―advise[ment]‖ when the 180-day LPS Act proceeding begins that, among other
things, the patient has a statutory ―right to demand a jury trial‖ on the allegations
of the petition. (Ibid.; see §§ 5301 [describing petition for postcertification
treatment], 5303 [authorizing ―requests [for] a jury trial‖ at the time of the hearing
on such petitions].)17 Barrett insists that persons who are allegedly mentally

17      Section 5302 states: ―At the time of filing a petition for postcertification
treatment the court shall advise the person named in the petition of his right to be
represented by an attorney and of his right to demand a jury trial. The court shall
assist him in finding an attorney, or, if need be, appoint an attorney if the person is
unable to obtain counsel. The court shall appoint the public defender or other
attorney to represent the person named in the petition if the person is financially
unable to provide his own attorney. The attorney shall advise the person of his
rights in relation to the proceeding and shall represent him before the court.‖


                                          28
retarded and dangerous under section 6500 are no different for jury trial purposes
from 180-day LPS Act candidates under section 5300 et seq. Relying heavily on
the equal protection analysis set forth in Alvas, supra, 221 Cal.App.3d 1459, 1463-
1464, and followed by the same court in Bailie, supra, 144 Cal.App.4th 841, 844-
847, Barrett claims no rational distinction exists between the two groups as to
involuntary commitment, and no compelling reason for their disparate statutory
treatment on jury trial advisements.
       Because of the fundamental interests at stake, equal protection principles
are often invoked in civil commitment cases to ensure that the statutory scheme
applicable to a particular class of persons has not treated them unfairly in
comparison with other groups with similar characteristics. (People v. McKee
(2010) 47 Cal.4th 1172, 1199, and cases cited.) A prerequisite to a meritorious
claim is that individuals ―similarly situated with respect to the legitimate purpose
of the law receive like treatment.‖ (Gary W., supra, 5 Cal.3d 296, 303; accord, In
re Lemanuel C. (2007) 41 Cal.4th 33, 47; Cooley v. Superior Court (2002) 29
Cal.4th 228, 253.) Where two or more groups are properly distinguishable for
purposes of the challenged law, it is immaterial if they are indistinguishable in
other respects. (Cooley, supra, at p. 253.) Nor, absent this threshold requirement,
is an equal protection inquiry into the justification for any legislative distinction
necessary. (See Gary W., at pp. 304, 306.)
       Barrett offers no analysis of the language, history, or function of section
5302 to facilitate the requisite constitutional comparison with jury trial procedures
in section 6500 cases. She simply seems to assume for equal protection purposes
— consistent with her views in the due process context — that the express
advisement in section 5302 is intended to ensure that dangerously disordered
patients facing 180-day LPS Act commitments make an informed personal choice
about whether to exercise their right to request a jury trial under section 5303.
                                          29
         However, we need not decide the meaning or purpose of section 5302 to
resolve whether equal protection requires a similar jury trial advisement in section
6500 proceedings. Nor must we address the circumstances under which a 180-day
LPS Act candidate may, either acting alone or through counsel, properly waive a
jury trial and submit to a court trial under section 5303. Assuming for argument‘s
sake that Barrett‘s view of section 5302 is correct, and assuming further that
dangerous mentally retarded persons and dangerous mentally disordered persons
are similarly situated as to the existence of a basic jury trial right, nothing compels
the conclusion that they are also similarly situated as to the ancillary purpose that
an express jury trial advisement, and an express personal waiver, purportedly
serve.
         As the People suggest, the critical factor is the distinct ―mentality‖ (§ 6507)
covered by the two schemes. Section 6500 et seq. governs commitments of
dangerous mentally retarded persons, while the LPS Act is a comprehensive
scheme for the involuntary detention, evaluation, and treatment of ―mentally ill‖
individuals. (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1008
(Susan T.).) For purposes of the LPS Act, such a mentally ill person is anyone
who, ―as a result of mental disorder, is a danger to others, or to himself or herself,
or gravely disabled.‖ (§ 5150; see John L., supra, 48 Cal.4th 131, 142.)
Intervention occurs on a limited basis through successive statutory periods which
are initially quite brief (§ 5150 [72 hours]), and which are ―carefully calibrated‖ to
increase over time. (Ben C., supra, 40 Cal.4th 529, 541; see, e.g., §§ 5250 [14
days], 5270.15 [30 days], 5300 [180 days].) The process culminates in a one-year
conservatorship (§ 5361) for persons who are ―gravely disabled‖ (§ 5350) as a
result of their mental disorders. (See § 5008, subd. (h)(1) & (2) [defining
― ‗gravely disabled‘ ‖]; see id., subd. (h)(3) [excluding ―mentally retarded persons
by reason of being mentally retarded alone‖].)
                                           30
       The term ―mental disorder‖ is not defined in any LPS Act provision.
(People v. Allen (2007) 42 Cal.4th 91, 107, fn. 7.) Courts applying the LPS Act
and similar commitment schemes have sought to fill this gap. Mental illness and
related disorders are said to be conditions that may arise suddenly and, for the first
time, in adulthood. (Heller, supra, 509 U.S. 312, 322.) The LPS Act process
itself assumes that the need for treatment may be temporary, and that disabling
mental disorders may be intermittent or short-lived. (See Susan T., supra, 8
Cal.4th 1005, 1018 [―not every detention under section 5150 leads to a
conservatorship proceeding‖].)
       In addition, because of the complexity of human behavior, and the lack of a
long history in every case, mental illness and related disorders may be difficult to
diagnose. (Heller, supra, 509 U.S. 312, 322, citing Addington, supra, 441 U.S.
418, 430.) Where present, however, ― ‗mental illness ―often strikes only limited
areas of functioning, leaving other areas unimpaired, and consequently . . . many
mentally ill persons retain the capacity to function in a competent manner.‖ ‘ ‖
(In re Qawi (2004) 32 Cal.4th 1, 17, italics added [addressing circumstances in
which mentally disordered offenders under Pen. Code, § 2960 et seq. have
qualified rights similar to some LPS Act patients to refuse antipsychotic drugs].)
       These characteristics suggest that the mental conditions that create
eligibility for an extended 180-day LPS Act commitment, though they include
imminent dangerousness, do not necessarily imply incompetence or a reduced
ability to understand, and make decisions about, the conduct of the proceedings.
Hence, nothing compels the conclusion that such LPS Act patients will not benefit
by the statutory right to a jury trial advisement set forth in section 5302. By
contrast, in the case of persons alleged to be mentally retarded and dangerous
under section 6500, the commitment process itself raises substantial doubts about
their cognitive and intellectual functioning sufficient to limit the personal and
                                          31
procedural role they play. It follows that the two groups are not similarly situated
as to the function that Barrett implies an advisement like section 5302 serves —
comprehending and controlling the decision whether to request a jury trial. Thus,
any disparate statutory treatment with respect to jury trial advisements does not
deprive persons like Barrett of equal protection of the law.
       The equal protection analysis included in both People v. Alvas, supra, 221
Cal.App.3d 1459, 1463-1464, and People v. Bailie, supra, 144 Cal.App.4th 841,
844-847, does not persuade us to reach different conclusions. In finding no valid
basis for any disparate statutory treatment as to jury trial advisements, both cases
simply assumed that section 6500 defendants are similarly situated with 180-day
LPS Act candidates. This assumption is flawed and erroneous for reasons we have
explained. Hence, both Alvas and Bailie are disapproved to the extent they
conflict with the views we have expressed.
       We also reject a further insinuation in Barrett‘s equal protection claim. She
suggests that, in not expressly authorizing jury trials or requiring jury trial
advisements in section 6500 proceedings, even though several other commitment
schemes include such rights, the Legislature has arbitrarily decided that alleged
mentally retarded persons are unsuited to such protection, and has unfairly
subjected them to more burdensome procedures than persons facing commitment
in almost any other circumstance. In essence, Barrett simply implies that if some
such schemes include these provisions, then all must.
       But an equal protection violation does not occur merely because different
statutory procedures have been included in different civil commitment schemes.
(See Hofferber, supra, 28 Cal.3d 161, 172 [Legislature ―may adopt more than one
procedure for isolating, treating, and restraining dangerous persons‖].) Nothing
compels the state ―to choose between attacking every aspect of a problem or not
attacking the problem at all.‖ (People v. Jennings (2000) 81 Cal.App.4th 1301,
                                           32
1312-1313.) Far from having to ―solve all related ills at once‖ (People v. Cooper
(1996) 43 Cal.App.4th 815, 829), the Legislature has ―broad discretion‖ to
proceed in an incremental and uneven manner without necessarily engaging in
arbitrary and unlawful discrimination. (People v. Ward (2005) 36 Cal.4th 186,
217, citing McLaughlin v. Florida (1964) 379 U.S. 184, 191; Warden v. State Bar
of California (1999) 21 Cal.4th 628, 649.)
       Contrary to what Barrett implies, she has not been singled out for harsh and
unfair treatment in this regard. Of the nine commitment procedures we have listed
above, a majority (including § 6500 et seq.) either do not reference jury trial
matters at all (such that a right to jury trial on request has been constitutionally
implied),18 or they say nothing about advisements or waivers of any jury trial right
otherwise provided therein.19 By the same token, variations in the other


18    See section 4825, added by Statutes 1977, chapter 1252, section 550,
page 4564, operative July 1, 1978; see also Hop, supra, 29 Cal.3d 82, 92-94.
19      For example, in proceedings to commit narcotic addicts, whether they have
been convicted of crimes (see § 3050 et seq.) or not convicted of crimes (see
§ 3100 et seq.), section 3108 contemplates a ―written demand‖ to be ―tried by a
jury‖ under civil law, and a verdict ―by at least three-fourths of the jury.‖ (§ 3108,
as amended by Stats. 1967, ch. 1124, § 13, p. 2970); but see People v. Thomas
(1977) 19 Cal.3d 630, 641, 644 [holding that due process requires proof beyond a
reasonable doubt and unanimous verdicts in § 3108 jury trials].) Another
approach to the basic jury trial right is used to civilly commit sexually violent
predators. (See § 6600 et seq.) Since that scheme‘s enactment in 1995, section
6603 has stated that the defendant is ―entitled to a trial by jury‖ (§ 6603, subd.
(a)), and that the ―attorney petitioning for commitment‖ also has ―the right to
demand that the trial be before a jury.‖ (Id., subd. (b); see id., subd. (e) [if neither
party demands a jury trial, ―the trial shall be before the court without a jury‖].)
Elsewhere, in proceedings to determine the mental competence of criminal
defendants, Penal Code section 1369 simply authorizes a ―trial by court or jury,‖
and regulates the content and chronology of such trials. (See Pen. Code, former
§ 1369, as amended by Stats. 1974, ch. 1511, § 5, p. 3318, eff. Sept. 27, 1974.)


                                          33
commitment schemes suggest no uniform set of jury trial procedures exists or was
withheld from Barrett.20 There is nothing unusual or unconstitutional about the
manner in which these statutes have evolved over time.




20      See sections 1801.5 (contemplating jury trials in proceedings under § 1800
et seq. to detain disordered and dangerous persons upon discharge from the
juvenile system, unless the right to jury trial is personally waived by the person,
after being fully advised of the waived rights, and by the prosecuting attorney),
5302 (requiring that in LPS Act proceedings to extend custodial treatment to 180
days for imminently dangerous and disordered persons, the court must advise the
person of the right to demand a jury trial); Penal Code, section 1026.5, subdivision
(b)(3), (4) (providing that in proceedings to extend commitment and treatment of
disordered and dangerous persons found not guilty by reason of insanity in felony
cases, the court must advise the person of the right to jury trial, and that any
waiver must be by both the person and the prosecuting attorney), Penal Code,
section 2972, subdivisions (a) and (e) (establishing that in proceedings to continue
commitment and treatment of mentally disordered and dangerous prisoners, the
court must advise the person of the right to jury trial, and that any waiver must be
by both the person and the district attorney).


                                        34
       For all of the foregoing reasons, Barrett has not presented a meritorious
equal protection challenge to the statutory jury trial procedures available under
section 6500 compared to other commitment schemes. We decline to invalidate
the commitment order entered after her nonjury trial on this ground.21




21      In separate concurring and dissenting opinions, Justices Liu and Werdegar
likewise approve the commitment order, but only after crafting their own
constitutional theory of equal protection — a theory which contravenes settled law
and undercuts the Legislature‘s decision not to require jury trial advisements in
section 6500 proceedings. Justices Liu and Werdegar are aware that we have
correctly applied the United States Supreme Court‘s prevailing ―rational basis‖
standard for analyzing the equal protection claims of mentally retarded persons.
(Heller, supra, 509 U.S. 312, 319-321.) Nonetheless, though Justice Liu argues
otherwise, he and Justice Werdegar use the jury trial advisement statutorily
available to certain mentally ill patients facing extended 180-day commitments
under the LPS Act (see § 5302) to create a new state constitutional jury trial
advisement right for mentally retarded persons. Their reason for invoking the
state charter is to import federal authority that is outmoded in this context
(Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432), and to thereby
find an equal protection violation under an unduly strict standard of scrutiny. (See
id. at pp. 448, 450.) The standard they propose was, of course, superseded, and
essentially discarded, in Heller, supra, 509 U.S. at page 321. Ironically, the views
set forth at length in the concurring and dissenting opinions result in little real-
world benefit to Barrett, and, as Justice Liu appears to concede, the right to a jury
trial advisement for which he and Justice Werdegar advocate is largely symbolic.
Their analyses include the concession, either express or implicit, that Barrett was
not necessarily entitled to act on such a direct advisement by personally deciding
whether to demand a jury. Moreover, they conclude that to the extent Barrett
received no such advisement, no prejudice occurred in light of undisputed
evidence that she was both mentally retarded and dangerous. In sum, we find the
concurring and dissenting opinions unpersuasive, and we decline to adopt their
views or to modify our approach.



                                         35
                              IV. DISPOSITION
      The judgment of the Court of Appeal is affirmed. To the extent the
analyses in People v. Alvas (1990) 221 Cal.App.3d 1459, and People v. Bailie
(2006) 44 Cal.App.4th 841, are inconsistent with the views expressed herein, these
decisions are disapproved.
                                               BAXTER, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
CHIN, J.
CORRIGAN, J.




                                       36
    CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.

       I agree with the majority‘s conclusion that defendant Christine Barrett was
entitled to have a jury decide whether the state had proven she met the statutory
standards for involuntary commitment under Welfare and Institutions Code
section 6500.1 (Maj. opn., ante, at p. 14.) But the majority‘s next step in its
analysis is unpersuasive: it finds that although mentally ill persons facing
involuntary civil commitment under the Lanterman-Petris-Short Act (§ 5000 et
seq.) are entitled by statute to have the court advise them ―of [their] right to
demand a jury trial‖ (§ 5302), persons—like Barrett—who are alleged to be
mentally retarded and a danger to themselves or others who similarly face
involuntary civil commitment are not entitled to the same jury advisement. As
Justice Liu explains in his separate opinion, the differences between mentally ill
persons and those alleged to be mentally retarded ―do not support a categorical
distinction between the two groups with respect to a jury right advisement.‖
(Conc. & dis. opn. of Liu, J., post, at p. 21.)
       Article I, section 24 of the California Constitution provides that ―[r]ights
guaranteed by this Constitution are not dependent on those guaranteed by the
United States Constitution.‖ The California Constitution is thus a document of
independent force, and the people of this state are not dependent on the United


1      All statutory references are to this code.



                                            1
States Constitution as the primary source of their protection. (See, e.g., People v.
Monge (1997) 16 Cal.4th 826, 847, 871 (dis. opn. of Werdegar, J.) [―good reasons
exist to rely on our state Constitution even before we consider whether the federal
Constitution applies‖].) I thus agree with the approach taken by my colleague
Justice Liu, in his separate opinion, relying on the state equal protection guarantee
in article I, section 7 of the California Constitution, which provides that ―[a]
person may not be . . . denied equal protection of the laws . . . .‖ As he explains
(conc. & dis. opn. of Liu, J., post, at p. 44), this court‘s landmark decision in
Serrano v. Priest (1976) 18 Cal.3d 728 made clear that our state equal protection
clause is ―possessed of an independent vitality which, in a given case, may
demand an analysis different from that which would obtain if only the federal
standard were applicable.‖ (Id. at p. 764.)
       A critical first step when determining whether Barrett has a state equal
protection right to an advisement of her jury trial right is to discern the appropriate
equal protection standard, or level of scrutiny, applicable in the case. We recently
explained in Hernandez v. City of Hanford (2007) 41 Cal.4th 279, 298-299, that
the first level of scrutiny ― ‗ ―is the basic and conventional standard for reviewing
economic and social welfare legislation in which there is a ‗discrimination‘ or
differentiation of treatment between classes or individuals. . . .‖ ‘ [Citation.] This
first basic equal protection standard generally is referred to as the ‗rational
relationship‘ or ‗rational basis‘ standard.‖ But while the rational basis test under
the Fourteenth Amendment to the United States Constitution has been applied to
economic and social welfare legislation (see FCC v. Beach Communications,
Inc. (1993) 508 U.S. 307 [applying the rational basis test to uphold a portion of the
Cable Communications Policy Act of 1984]; Warden v. State Bar (1999) 21
Cal.4th 628 [applying the rational basis test to reject a challenge to exemptions
from minimum continuing legal education for retired judges, state officers and

                                           2
elected officials]), that highly deferential test is inappropriate here, where Barrett
faces involuntary civil commitment under section 6500. This serious curtailment
of her personal liberty, along with the stigma that attaches upon being found both
mentally retarded and dangerous,2 justifies a heightened standard in these
circumstances, and for the reasons he explains, I agree with Justice Liu that the
state constitutional protection of article I, section 7, in this context, should be
informed by the high court‘s decision in Cleburne v. Cleburne Living Center, Inc.
(1985) 473 U.S. 432. (See conc. & dis. opn. of Liu, J., post, at pp. 34-35; see
generally id., pt. V.)
       The majority justifies its decision to distinguish between persons who are
mentally ill and those who are mentally retarded in part by suggesting that because
Barrett is alleged to be unable to care for herself, we should assume her attorney
will act in her best interests (maj. opn., ante, at pp. 21-23); that due to Barrett‘s
alleged mental deficits she would necessarily play a limited role in her defense (id.
at p. 24); and that a personal jury advisement requirement ―would have little effect
on enhancing either the jury trial right itself or the vital interests it protects‖
(ibid.). Such reasoning fails to acknowledge that those suffering from mental
retardation exhibit a wide range of abilities: ―they range from those whose
disability is not immediately evident to those who must be constantly cared for.‖
(Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at p. 442.) More

2       See, e.g., U.S. v. Davis (D.Md. 2009) 611 F.Supp.2d 472, 483 (parents
resist having their children labeled mentally retarded ―because of the stigma
associated with it‖); State v. Vela (2010) 279 Neb. 94, 129 [777 N.W.2d 266, 293]
(―We are aware that a social stigma exists with respect to the phrase ‗mental
retardation.‘ ‖); In re Daniel D. (R.I. 2010) 9 A.3d 651, 652, fn. 1 (noting ―the
State of Rhode Island recently has endeavored to eliminate use of the word
‗retarded‘ and like terms in an effort to address the unfortunate stigma attached to
developmental disabilities‖).



                                            3
importantly, the majority‘s reasoning fails to accord sufficient respect to the rights
of the mentally disabled, as directed by our Legislature as a matter of state policy
in section 4502, which states: ―Persons with developmental disabilities have the
same legal rights and responsibilities guaranteed all other individuals by the
United States Constitution and laws and the Constitution and laws of the State of
California.‖ The same section provides: ―It is the intent of the Legislature that
persons with developmental disabilities shall have rights including, but not limited
to, the following: [¶] . . . [¶] (j) A right to make choices in their own lives,
including, but not limited to, where and with whom they live, their relationships
with people in their community, the way they spend their time, including
education, employment, and leisure, the pursuit of their personal future, and
program planning and implementation.‖ (Ibid.)
       Accordingly, a legal scheme in which Barrett may be forced to live in an
institution, against her will and possibly for the rest of her life, without being told
she could have had a jury decide her fate, when the state requires a jury
advisement for mentally ill persons facing essentially the same type of
commitment (§ 5302), lacks a rational basis and thus violates Barrett‘s right to
equal protection under the California Constitution.
       Unlike the United States Constitution, the California Constitution specifies
the conditions that must be present before a judgment is reversed. Article VI,
section 13 of the California Constitution states: ―No judgment shall be set aside,
or new trial granted, in any cause . . . for any error as to any matter of procedure,
unless, after an examination of the entire cause, including the evidence, the court
shall be of the opinion that the error complained of has resulted in a miscarriage of
justice.‖ Like Justice Liu, I conclude that the violation of Barrett‘s rights under
the state equal protection clause was harmless because it was not reasonably
probable she would have achieved a more favorable result had the trial court

                                           4
informed her of her jury trial right. (People v. Watson (1956) 46 Cal.2d 818,
836.)3 Although I disagree with the majority‘s reasoning, I thus concur in its
result.

                                                   WERDEGAR, J.




3       The majority criticizes the reasoning of the separate opinions, saying it is
―[i]ronic[],‖ ―largely symbolic,‖ and ―result[s] in little real-world benefit to
Barrett.‖ (Maj. opn., ante, at p. 35, fn. 21.) To the contrary, although Barrett has
not demonstrated prejudice resulting from the trial court‘s failure to advise her of
her jury trial right in the commitment hearing at issue here, she may be able to do
so in the future if she is recommitted and the error recurs. Moreover, were the
majority to endorse, as I do, the state equal protection analysis set forth in Justice
Liu‘s separate opinion, potential committees in the future would benefit from the
jury trial advisement, thereby fulfilling the statutory directive that such persons
have the ―right to make choices in their own lives, including, but not limited to,
where and with whom they live.‖ (§ 4502, subd. (j).)



                                           5
          CONCURRING AND DISSENTING OPINION BY LIU, J.

       To most people who are thrust into a courtroom, the whir and din of the
legal process make for a bewildering experience. Counsel is necessary, but even
diligent representation does not always ensure due regard for the dignity of a
vulnerable yet dangerous individual whose liberty is at stake.
       In this case, a young woman, Christine Barrett, was found mentally
retarded and dangerous by a judge, and she was ordered committed to a secure
treatment facility. Barrett was not charged with any crime, and the record does not
show any criminal history. The order of commitment was for one year, but it is
renewable year after year without limit. In all likelihood, the commitment
proceeding has irreversibly altered the course of her life. And yet, there is no
indication in the record of the proceedings that the trial court spoke directly to
Barrett about her rights or any other substantive matter.
       The trial court found that Barrett, in addition to having mental retardation,
also suffered from mental illness. If Barrett had faced prolonged involuntary
commitment on the basis of mental illness instead of mental retardation, she would
have been statutorily entitled to an advisement by the court of her right to be tried
by a jury. Barrett contends that the Legislature‘s selectivity — requiring the
advisement for mentally ill persons but denying it to persons alleged to be
mentally retarded — proceeds from the objectionable premise that persons in her
position are unworthy of an advisement. As stated in her opening brief, she brings



                                          1
an equal protection challenge to this disparate treatment on the ground that ―there
is no justification for depriving all people identified with having an intellectual or
developmental disability from the opportunity to learn of the right to a jury trial,
and to act on the information in accordance with their individual abilities.‖
       I agree with Barrett. Although due process principles do not require
involuntary commitment procedures to include a jury trial advisement either for
persons who are mentally ill or for persons alleged to be mentally retarded, the
statutory requirement of an advisement for one but not the other is unsupported by
any facts or findings in the record before us. It is supported only by hypothesized
differences concerning the relative abilities of the two groups to understand an
advisement. To be sure, many potential committees who are alleged to be
mentally retarded have disabilities that preclude any meaningful comprehension of
a jury trial advisement. But that is not true of all such persons. Applying our state
equal protection guarantee (Cal. Const., art. I, § 7, subd. (a)) as informed by
federal constitutional precedent (Cleburne v. Cleburne Living Center, Inc. (1985)
473 U.S. 432 (Cleburne)), I conclude that there is no rational basis for denying
Barrett — simply because she was alleged to be mentally retarded — the same
advisement and the same dignity afforded by such an advisement to which other
persons with mental disabilities are statutorily entitled when facing prolonged
involuntary commitment.
       Accordingly, I respectfully dissent from the court‘s denial of Barrett‘s
equal protection claim. The court says I would ―create a new state constitutional
jury trial advisement right for mentally retarded persons.‖ (Maj. opn., ante, at
p. 35, fn. 21.) To be clear, my view is not that persons with mental retardation
have a free-standing constitutional right to an advisement. As explained below,
my view is that persons with mental retardation are, on the record before us,
constitutionally entitled to the same statutory advisement right that the Legislature

                                           2
has seen fit to provide to other persons with mental disabilities. But because I
agree with the Court of Appeal that any failure to advise was harmless under the
circumstances here, I concur in the court‘s affirmance of the judgment below.


                                          I.
       Christine Barrett was 27 years old and living in a private residence under
the care of the San Andreas Regional Center (Regional Center) when the district
attorney filed a petition under Welfare and Institutions Code section 6500 to
commit her as a person who is ―mentally retarded‖ and ―a danger to herself and
others.‖ (All undesignated statutory references are to the Welfare and Institutions
Code.) The petition was filed at the request of Betty Crane, the Regional Center‘s
service coordinator. The district attorney requested an evidentiary hearing and an
order that Barrett be committed to the custody of the Department of
Developmental Services (Department) for up to one year. The petition
incorporated by reference a declaration from Crane along with ―the assessment,
evaluations, reports, and other documents‖ of the Regional Center. These were
filed with the superior court, and we are treating them as confidential exhibits at
the request of the parties. The reports attached to the petition are the only expert
reports that appear in the record before us; no further reports were submitted by
the parties or obtained by the court pursuant to its authority under section 6504.5
to order a report by the director of the regional center or the director‘s designee.
       The petition was filed on January 22, 2009. On that date, the court set a
hearing for March 9, 2009, and placed Barrett under the Department‘s care
pending resolution of the petition. Counsel for both parties appeared on March 9,
and the matter was continued to April 8 for an evidentiary hearing. The only
record of that hearing is a printed minute order with no substantive information. It



                                           3
is not clear whether Barrett was present or received any information at that time
about the proceeding or her rights therein.
       The proceedings resumed on April 8, 2009, in the presence of Barrett and
counsel for both parties. The district attorney‘s sole witness was Dr. Robert
Thomas, a psychologist for the Regional Center. Dr. Thomas testified that Barrett
had been previously diagnosed with mental retardation and that she fell within the
moderate range of mental retardation with an estimated IQ ―[i]n the 50‘s to 40‘s.‖
Although he did not conduct a formal cognitive assessment of Barrett, Dr. Thomas
based his opinion of Barrett‘s mental retardation on her case file, which included
school documents, psychological assessments, and medical documents with results
of cognitive tests. He also based his opinion on the fact that Barrett, though
initially deemed ineligible for Regional Center services, was accepted for such
services in 2001 upon a second review of her case. Dr. Thomas said he personally
evaluated Barrett once, during a visit to her apartment, and said he found it ―very
difficult to have a normal reciprocal conversation with her.‖
       Dr. Thomas further testified that Barrett had also been diagnosed with a
range of psychiatric conditions, including schizophrenia, bipolar disorder, and
schizoaffective disorder. He said that individuals like Barrett with a dual
diagnosis of mental illness and mental retardation do not always receive the
treatment and supervision they need at the Regional Center because the staff there
is trained to address mental retardation, not to provide psychiatric treatment.
       In addition, Dr. Thomas testified that Barrett was a danger to herself and
others based on his review of 20 to 30 incident reports dating back to 2001. He
said those reports included numerous accounts of violent behavior, including
physical assaults on Regional Center staff, destruction of property, and self-
mutilation. Dr. Thomas also said that ―[s]he has threatened suicide and verbalized
suicidal thoughts‖ based on one of the incident reports. Although Dr. Thomas

                                          4
could not describe the severity of each incident based on the reports, he testified
that Barrett had the potential to cause serious injury to herself and to others
because of her inability to control her aggression.
       When asked whether Barrett‘s mental illness or her mental retardation was
the cause of her dangerous behavior, Dr. Thomas said her mental retardation
limited her ability ―to understand the complexity of her disorder and the need for
treatment.‖ But he also said that given the extent of Barrett‘s mental and
developmental disorders, ―it would be very difficult to differentiate what behavior
is attributed to what particular disorder.‖ Dr. Thomas opined that the least
restrictive placement for Barrett was commitment to the secure treatment facility
where she had been placed pending disposition of the section 6500 petition.
       Barrett testified on her own behalf. She spoke about her current placement,
stating a clear preference for placement in a group home rather than the secure
facility. She testified that she was taking medication that left her mind ―clearer‖
and helped her to stay calm. The record contains no indication that her attorney or
the court inquired into her ability to comprehend the proceedings or the rights to
which she was entitled. But Barrett made clear that she wanted to make her own
living and medical decisions: ―[I]f I had a choice in life I‘d have a choice to have
my freedom and I‘d have a choice to talk to my doctor.‖
       Based on the testimony and reports, the trial court found that Barrett was
mentally retarded and dangerous under section 6500, and committed her to the
custody of the Department for one year. The court acknowledged that ―Ms.
Barrett presents a complex situation‖ in light of ―a series of mental health
diagnoses, many of which seem to be overlapping depending on various times.‖
The court concluded that her dangerousness is ―based upon mental retardation‖
and ―may also have an element of being based on her mental illness.‖



                                          5
       The record does not show that the court directly addressed Barrett at any
point in the proceedings to explain any rights she might have under state or federal
law, including the right to trial by jury. Among other things, Barrett contends that
the court‘s failure to advise her of the right to demand a jury trial violates the
principle of equal protection of the laws.
                                          II.
       California has a panoply of statutes providing for the involuntary
commitment of individuals who pose a threat to themselves and others. As we
recently observed, ―[d]ecisions by this court and the United States Supreme Court
. . . have used the equal protection clause to police civil commitment statutes to
ensure that a particular group of civil committees is not unfairly or arbitrarily
subjected to greater burdens.‖ (People v. McKee (2010) 47 Cal.4th 1172, 1199
[collecting cases].)
       Most of California‘s civil commitment statutes apply to persons who have
been accused or convicted of a crime. (See §§ 1800 et seq. [mentally disordered
offenders discharged by juvenile authorities], 3000 et seq. [narcotics addicts],
6600 et seq. [sexually violent predators]; Pen. Code, §§ 1026–1027 [defendants
acquitted by reason of insanity]; Pen. Code, § 1367 [defendants found mentally
incompetent]; Pen., Code § 2960 et seq. [mentally disordered offenders].) Only
two involuntary commitment schemes — the Lanterman-Petris-Short Act (LPS
Act) (§ 5300 et seq.) and section 6500 — authorize the state to assert prolonged
custody over individuals through proceedings completely separate from the
juvenile and criminal justice systems. Section 5300 authorizes the commitment of
certain mentally ill persons for 180 days upon a finding of dangerousness. Section
6500 authorizes a renewable one-year commitment for persons found to be
mentally retarded and dangerous. Neither statute requires the state to show or
charge criminal conduct.

                                             6
         In framing her equal protection claim, Barrett contrasts the procedures for a
180-day commitment under the LPS Act with the procedures for a one-year
commitment under section 6500. The LPS Act expressly recognizes a right to a
jury trial (§§ 5302, 5303) and says ―the court shall advise the person named in the
petition . . . of his right to demand a jury trial‖ (§ 5302). Section 6500, by
contrast, does not mention the right to a jury trial or contain any advisement
requirement.
         Today‘s opinion confirms that an individual facing commitment under
section 6500 has the right to trial by jury. (Maj. opn., ante, at pp. 14–15.) The
court endorses ―a long and unbroken line of California appellate court cases
holding or assuming — largely on the basis of federal and state equal protection
principles affecting fundamental interests — that persons alleged to be mentally
retarded and dangerous cannot be denied a jury trial altogether where jury trials
are granted by statute to persons alleged to be mentally impaired and dangerous
under comparable commitment laws.‖ (Id. at p. 14.) I join this holding of the
court.
         The question here is whether persons facing commitment under section
6500 are also entitled, as a matter of equal protection, to the same advisement of
the right to trial by jury that is guaranteed to persons facing commitment under
section 5300. It is on this question that I disagree with the court‘s opinion.
         Barrett additionally contends that section 5302‘s advisement requirement
means that the decision to waive a jury trial must be made personally by the
individual facing commitment under the LPS Act and that this right to personal
waiver extends to section 6500 proceedings as a matter of equal protection. The
court does not decide whether a right to personal waiver inheres in section 5302
(maj. opn., ante, at p. 30), and I also see no need to decide that issue. Separate and
apart from a right to personal waiver, a jury trial advisement has important value

                                           7
to an individual facing involuntary commitment in at least two ways. First, an
advisement may prompt the individual to discuss jury trial concerns with counsel
if she is able. Even if counsel can be expected to consult with the client about
such concerns when counsel believes it is ―necessary or advisable‖ (maj. opn.,
ante, at p. 26), an advisement by the court may have the practical effect of
empowering the individual, at her own initiative, to participate in the decision with
counsel. Second, an advisement conveys respect for the individual‘s
understanding of and interest in a key issue — who will be the decision maker,
judge or jury? — in a proceeding that may inalterably shape the trajectory of her
life. In short, an advisement recognizes the dignity and agency of the individual
who appears before the court.
       In addressing Barrett‘s equal protection claim, I begin in part III below by
discussing at some length the troubled history of our nation‘s and our state‘s
treatment of persons with mental disabilities. In part IV, I discuss the
shortcomings of the court‘s analysis of Barrett‘s claim. In part V, I elucidate the
proper standard of equal protection review and apply it to the statutory
classification at issue here.
       As my analysis will make clear, the issue in this case is not whether people
who are mentally retarded generally have less cognitive ability than people who
are mentally ill. Barrett‘s claim specifically concerns the ability to understand a
jury trial advisement and involves a specific comparison between two groups:
mentally ill persons facing 180-day commitment under section 5300 and persons
alleged to be mentally retarded under section 6500. In light of historic and
continuing misperceptions concerning the ability of persons who are mentally
retarded to understand and influence their own fate, I believe the requirement of a
jury trial advisement for persons facing commitment under section 5300, but not



                                          8
for persons facing commitment under section 6500, does not survive equal
protection scrutiny.
                                          III.
       To fully appreciate the nature of a section 6500 proceeding and the context
of Barrett‘s claim, it is helpful to begin with some history. Civil proceedings
against individuals alleged to be mentally retarded and dangerous have long been
thought necessary to protect society as well as the individual involved. But such
proceedings also have a regrettably long history of abuse.
                                           A.
       This history is familiar to those trained in the law. For it was Justice
Holmes‘s infamous opinion for the high court in Buck v. Bell (1927) 274 U.S. 200
that upheld a Virginia statute authorizing the compulsory ―sterilization of mental
defectives.‖ (Id. at p. 205.) That category included Carrie Buck, whom the court
described as ―a feeble-minded white woman‖ who was ―the daughter of a feeble-
minded mother‖ and ―the mother of an illegitimate feeble-minded child.‖ (Ibid.)
Echoing the eugenics theories popular at the time, Justice Holmes reasoned: ―We
have seen more than once that the public welfare may call upon the best citizens
for their lives. It would be strange if it could not call upon those who already sap
the strength of the State for these lesser sacrifices, often not felt to be such by
those concerned, in order to prevent our being swamped with incompetence. It is
better for all the world, if instead of waiting to execute degenerate offspring for
crime, or to let them starve for their imbecility, society can prevent those who are
manifestly unfit from continuing their kind. The principle that sustains
compulsory vaccination is broad enough to cover cutting the Fallopian tubes.
[Citation.] Three generations of imbeciles are enough.‖ (Id. at p. 207.) With the
high court‘s endorsement, Virginia officials forcibly sterilized Buck along with
8,300 other inmates of state mental institutions between 1927 and 1974, when the

                                           9
law was finally repealed. (See Lombardo, Three Generations, No Imbeciles:
Eugenics, the Supreme Court, and Buck v. Bell (2008) p. 294 (Lombardo).)
       The high court‘s eight-to-one decision in Buck v. Bell reflected then
prevalent attitudes toward persons with mental disabilities. Twenty-five states,
including Virginia, had sterilization laws in place at the time Buck v. Bell was
decided, and seven others followed suit by 1937. (Lombardo, supra, at p. 294; see
ibid. [citing a 1965 study finding that more than 65,000 Americans were sterilized
under such laws].) It is tempting to say, from our contemporary perspective, that
such laws were the product of unthinking prejudice and blatant disregard for the
rights of the individuals affected. But to their proponents, the sterilization laws
had a genuinely benign purpose as an alternative to civil confinement. As the
Virginia Supreme Court explained in Buck‘s case: ―Unless sterilized by surgical
operation, she must be kept in the custodial care of the [State Colony for
Epileptics and Feeble-Minded] for thirty years, until she is sterilized by nature,
during which time she will be a charge upon the State. If sterilized under the law,
she could be given her liberty and secure a good home, under supervision, without
injury to society. Her welfare and that of society would be promoted by such
sterilization.‖ (Buck v. Bell (Va. 1925) 130 S.E. 516, 517–518, affd. (1927) 274
U.S. 200.)
       Moreover, the Virginia statute was not devoid of procedural safeguards.
(See Buck v. Bell, supra, 274 U.S. at p. 206 [noting ―the very careful provisions by
which the act protects the patients from possible abuse‖].) The high court
described the statute‘s protections as follows: ―The superintendent [of the State
Colony for Epileptics and Feeble-Minded] first presents a petition to the special
board of directors of his hospital or colony, stating the facts and the grounds for
his opinion, verified by affidavit. Notice of the petition and of the time and place
of the hearing in the institution is to be served upon the inmate, and also upon his

                                          10
guardian, and if there is no guardian the superintendent is to apply to the Circuit
Court of the County to appoint one. If the inmate is a minor notice also is to be
given to his parents, if any, with a copy of the petition. The board is to see to it
that the inmate may attend the hearings if desired by him or his guardian. The
evidence is all to be reduced to writing, and after the board has made its order for
or against the operation, the superintendent, or the inmate, or his guardian, may
appeal to the Circuit Court of the County. The Circuit Court may consider the
record of the board and the evidence before it and such other admissible evidence
as may be offered, and may affirm, revise, or reverse the order of the board and
enter such order as it deems just. Finally any party may apply to the Supreme
Court of Appeals, which, if it grants the appeal, is to hear the case upon the record
of the trial in the Circuit Court and may enter such order as it thinks the Circuit
Court should have entered.‖ (Id. at pp. 206–207.)
       Although the statute did not include a right to counsel, the protections it did
afford led the high court to conclude that ―[t]here can be no doubt that so far as
procedure is concerned the rights of the patient are most carefully considered.‖
(Buck v. Bell, supra, 274 U.S. at p. 207.) And yet, careful scholars of Buck‘s life
have come to the conclusion that neither she nor her daughter Vivian was ―feeble-
minded‖ at all. (See Lombardo, supra, at p. 139 [citing school records showing
Buck ―was a normal child‖]; Brunius, Better for All the World: The Secret
History of Forced Sterilization and America‘s Quest for Racial Purity (2006)
pp. 76–77 [Vivian completed four semesters of school and made the honor roll
before her death at age eight]; Smith & Nelson, The Sterilization of Carrie Buck
(1989) p. 194 [reviewing letters written by Buck after her discharge from the
Colony and concluding that ―neither mother or daughter was illiterate despite
Oliver Wendell Holmes‘ comments‖].) Instead, it appears that Buck‘s real
―deficiency‖ was that she was an unwed mother, likely as a result of rape, and this

                                          11
was a point of embarrassment and shame for Buck‘s foster parents, who filed a
petition supporting Buck‘s sterilization. (See Lombardo, supra, at pp. 139–140;
Brunius, supra, at pp. 51–53; Smith & Nelson, supra, at p. 5.)
       Although the doctrinal underpinnings of Buck v. Bell have been eroded (see
Skinner v. Oklahoma (1942) 316 U.S. 535), the case remains a cautionary tale in
two respects. First, although state intervention into the lives of individuals with
mental disabilities has often been rationalized on the ground that it is for their own
good or the good of society, unfounded assumptions of incapacity and a legacy of
paternalism have resulted in serious ―depriv[ations] of . . . basic liberty‖ with
―subtle, far-reaching and devastating effects.‖ (Skinner, at p. 541.) Second, even
where such intervention is not inherently unlawful, laws directed at controlling
individuals with mental disabilities have been prone to overbroad application
despite what appear to be ―very careful provisions . . . protect[ing] the patients
from possible abuse‖ (Buck v. Bell, supra, 274 U.S. at p. 206).
                                          B.
       California was not immune to the eugenics theories underlying the Virginia
legislation at issue in Buck v. Bell. Indeed, by some accounts, California was a
pioneer. During the first half of the 20th century, California‘s approach to persons
who were mentally ill or developmentally disabled centered on institutionalizing
such individuals or otherwise isolating them from the rest of society. A broad
range of individuals deemed ―feeble-minded‖ or mentally deficient were subject to
sterilization. As treatments for mental illness advanced, California made efforts to
differentiate mental conditions viewed as treatable from those viewed as
hereditary or immutable. Over time, isolation and warehousing gradually gave
way to treatment and habilitation. In the 1960s, the Legislature enacted
substantive and procedural limits on the state‘s authority to commit individuals



                                          12
with mental illness. Protections for persons with mental retardation followed the
same general trajectory but lagged behind those afforded to the mentally ill.
       In 1909, California became the third state in the nation to pass a
sterilization bill. (Stats. 1909, ch. 720, § 1, pp. 1093–1094; see Stern, Eugenic
Nation: Faults and Frontiers of Better Breeding in Modern America (2005) p. 99.)
California‘s law was ―perhaps the most expansive legislation of all state acts
permitting sterilization.‖ (Lombardo, supra, at p. 26.) It allowed ―any inmate‖ of
any state hospital, the California Home for the Care and Training of Feeble-
Minded Children, or any state prison to be ―asexualized‖ whenever a panel of
medical officials determined ―it would be beneficial and conducive to the benefit
of the physical, mental or moral condition‖ of that individual. (Stats. 1909,
ch. 720, § 1, p. 1093.) Although the law applied only to prisoners who had been
imprisoned ―at least two times for some sexual offense, or at least three times for
any other crime‖ (id. at p. 1094), it placed no substantive limits on the sterilization
of persons deemed ―feeble-minded.‖
       The 1909 act was repealed in 1913 and replaced with legislation applying
to three discrete groups. Before release or discharge, inmates of state hospitals for
the insane ―afflicted with hereditary insanity or incurable chronic mania or
dementia‖ could be sterilized with or without their consent at the discretion of ―the
state commission in lunacy . . . after a careful investigation of all the
circumstances of the case.‖ (Stats. 1913, ch. 363, § 1, pp. 775–776.) Recidivists
committed to state prison for sexual crimes could also sterilized whenever the
resident physician determined it would be ―to the benefit of the physical, mental or
moral condition‖ of the inmate. (Id., § 2, p. 776.) Finally, any ―idiot or fool‖
could be sterilized by the superintendent of any state hospital with the written
consent of a parent or appointed guardian. (Id., § 3, p. 776.) Upon written request



                                          13
of the parent or guardian, the operation was to be performed ―without charge.‖
(Ibid.)
          The 1913 law was repealed four years later and replaced with two separate
statutes. The first statute, enacted in May 1917, expanded the state‘s authority to
sterilize inmates of mental hospitals before their release if they were found to be
afflicted with hereditary mental disease, ―the various grades of feeble
mindedness,‖ or ―perversion or marked departures from normal mentality or . . .
disease of a syphilitic nature.‖ (Stats. 1917, ch. 489, § 1, p. 571.) The second
statute, enacted in June 1917, established ―an institution to be known as the Pacific
colony‖ devoted to ―the care, confinement and instruction of feeble-minded and
epileptic persons.‖ (Stats. 1917, ch. 776, § 1, p. 1623 & preamble.) The statute
defined ― ‗feeble-minded‘ ‖ to include persons who were ―not insane‖ but ―so
mentally deficient that they are incapable of managing themselves and their affairs
independently, with ordinary prudence, or of being taught to do so, and who
require supervision, control, and care, for their own welfare, or for the welfare of
others, or for the welfare of the community.‖ (Id., § 16, p. 1626.) The June 1917
statute marked the first effort by the Legislature to differentiate between persons
classified as ―insane‖ (mentally ill) and those classified as ―feeble-minded‖
(mentally retarded) in the context of civil commitment.
          The June 1917 statute created a procedure for involuntary commitment that
later became section 6500. ―[A]ny parent, guardian or other person charged with
the support of a supposedly feeble-minded person‖ could petition the court for
admission of the individual to the Pacific colony. (Stats. 1917, ch. 776, § 17,
p. 1626.) The petitioner had to submit a verified affidavit ―disclos[ing] his reasons
for supposing such person to be eligible for admission.‖ (Ibid.) Peace officers
could also petition for commitment, but they were required to provide written



                                          14
notice of the petition to the ―parent, guardian or other person charged with such
support‖ of the proposed committee, if known. (Ibid.)
       If a person was found to be ―feeble-minded,‖ the judge could order the
person committed indefinitely to the Pacific colony, so long as the person had
been a resident of California for at least a year. (Stats. 1917, ch. 776, § 19,
pp. 1626–1627.) The only provision for discharge or release was at the discretion
of the institution‘s board of trustees. (Id., § 41, p. 1631.) Before discharge, the
board of trustees could order sterilization ―with or without the consent of the
inmate‖ upon a recommendation of the superintendent based on ―careful
investigation of all the circumstances.‖ (Id., § 42, p. 1631.) The statute declared
that such sterilization ―shall be lawful‖ and deemed the trustees and ―any person
participating in the operation‖ immune from civil or criminal liability. (Ibid.) In
1937, the Legislature added a provision requiring the court in a commitment
proceeding to give ―due notice of the hearing of the petition‖ to the ―alleged
incompetent.‖ (Stats. 1937, ch. 369, pp. 1005, 1137.)
       During the 1950s, improved medical treatments and increased public
awareness of the ―scandalous conditions in state mental institutions‖ gave rise to a
deinstitutionalization movement. (Levy & Rubenstein, The Rights of People with
Mental Disabilities (1996) p. 19 [citing Deutsch, The Shame of the States
(1948)].) From midcentury through the 1970s, California took a series of
important if halting steps that would, at one point, establish our state as a leader in
protecting the civil rights of persons with mental disabilities. As explained below,
reforms applicable to persons with mental illness focused on procedural rights that
gave such individuals the opportunity to participate in and make decisions about
their care to the extent possible. By contrast, reforms applicable to persons with
mental retardation began with substantive limits on the state‘s authority to order



                                          15
involuntary commitment. Although procedural protections followed, they
generally lagged behind the protections afforded to persons with mental illness.
       The first step toward reform came in 1951, when California enacted a new
sterilization scheme for all persons with mental disabilities under the jurisdiction
of the Department of Mental Hygiene. (Stats. 1951, ch. 552, § 1, pp. 1706–1707.)
For the first time, the Legislature required written notice to the patient and his or
her guardians of any proposed sterilization and created a procedure for individuals
to object and seek judicial review. (Ibid.) If the patient or a family member filed
a written objection within 30 days, the department director was required to ―make
full inquiry into the case, and may hold a hearing.‖ (Id., p. 1707.) If the director
decided that the patient should be sterilized despite the patient‘s or the family‘s
objection, the director had to provide written notice of the decision and the right to
petition the superior court for review. Whether due to this law or to other factors,
the use of sterilization in California dropped significantly. After sterilizing over
19,000 individuals between 1909 and 1949, the state performed only 981
procedures between 1949 and 1959. (Lombardo, supra, at pp. 241–242.)
       In 1965, the commitment scheme for ―feeble-minded‖ persons was
recodified, and the term ―feeble-minded‖ was replaced with ―mentally deficient
persons.‖ (Stats. 1965, ch. 391, § 4, pp. 1630, 1668 [former § 5590].) Individuals
who were adjudged ―mentally deficient‖ and who had resided in the state for at
least one year could be ordered committed to the Department of Mental Hygiene
for placement in the Sonoma State Home or the Pacific colony. (Id., p. 1670.)
Individuals who had been in the state for less than one year could also be
committed to the department ―for the purpose of transportation of such person to
the state of his legal residence.‖ (Ibid.)
       In 1967, California enacted the LPS Act in order ―[t]o end the
inappropriate, indefinite, and involuntary commitment of mentally disordered

                                             16
persons and persons impaired by chronic alcoholism, and to eliminate legal
disabilities.‖ (Stats. 1967, ch. 1667, § 36, pp. 4053, 4704 [former § 5001, subd.
(a)].) The LPS Act created a tiered scheme for involuntary commitment of
individuals with mental illness. Upon ―reasonable cause,‖ peace officers or other
designated professionals could place an individual believed to be dangerous or
gravely disabled into custody for 72-hour treatment and evaluation. (Id.,
pp. 4077–4078 [former § 5150].) Staff at the facility could then certify the
individual for an additional 14-day involuntary intensive treatment (id., pp. 4085–
4088 [former § 5250]), subject to judicial review (id., pp. 4088–4089 [former
§ 5275 et seq.]). After 14 days, an individual could be committed for an additional
90 days only after a hearing to determine whether the individual presented ―an
imminent threat of substantial physical harm to others.‖ (Id., pp. 4089–4091
[former § 5300].) The statute required the court to appoint counsel to represent
the person in that hearing, and the statute required counsel to advise the proposed
committee of his or her rights. (Id., p. 4090 [former § 5302].) Alternatively, an
individual found to be ―gravely disabled‖ could be committed through a one-year
conservatorship. (Id., pp. 4093–4098.) Before such commitment, the individual
had a right to demand a jury trial. (Id., p. 4094 [former § 5350, subd. (d)].)
       Many of the LPS Act‘s procedures for commitment of mentally ill persons
remain in place today (see post, at p. 21), although the 90-day commitment has
been extended to 180 days (see § 5300 [current]). By all accounts, the LPS Act
was a genuine step forward in protecting the rights of such individuals facing civil
commitment. ―The LPS Act has been called a ‗Magna Carta for the Mentally Ill‘
that ‗established the most progressive . . . commitment procedures in the
country.‘ ‖ (In re Qawi (2004) 32 Cal.4th 1, 17 [quoting Assem. Subcom. on
Mental Health Services, Dilemma of Mental Commitments in California (1978)
foreword by Assemblyman Louis Papan].)

                                         17
       In contrast to the commitment procedures for persons with mental illness,
the LPS Act simply recodified the existing commitment scheme for ―mentally
deficient persons,‖ moving the statute to section 6500 of the Welfare and
Institutions Code and replacing the phrase ―mentally deficient persons‖ with
― ‗mentally retarded persons.‘ ‖ (Stats. 1967, ch. 1667, § 37, pp. 4107, 4134–
4137.) Whereas the prior version of the statute applied to ―[a]ny mentally
deficient person,‖ the statute now provided: ―Any mentally retarded person
requiring hospitalization may be committed to the Department of Mental Hygiene
. . . .‖ (Id., p. 4134 [former § 6501].) The LPS Act did not explain what
conditions might ―requir[e] hospitalization‖; it simply provided that the court
could order a hospitalization commitment simply upon a finding that the person
was ―mentally retarded.‖ (Id., p. 4136.) The LPS Act did not give individuals
facing commitment under section 6500 a right to counsel.
       As enacted in 1967, the LPS Act also recodified the sterilization procedures
established in 1951, authorizing the sterilization of individuals with hereditary
mental disease, mental retardation, and other ―[m]arked departures from normal
mentality.‖ (Stats. 1967, ch. 1667, § 40, pp. 4146, 4155 [former § 7254].) The
sterilization law was not repealed until 1979. (Stats. 1979, ch. 552, § 1, p. 1762.)
       In 1970, the Legislature enacted section former 6500.1, establishing the
first substantive limit on the state‘s authority to involuntarily commit individuals
with developmental disabilities. The act provided: ―On and after July 1, 1971, no
mentally retarded person may be committed to the Department of Mental Hygiene
pursuant to this article, unless he is a danger to himself or others.‖ (Stats. 1970,
ch. 351, § 3, p. 765.)
       Even as the 1970 act imposed a requirement of dangerousness as a
substantive limit on the involuntary commitment of persons with mental
retardation, a second bill passed later that year established an additional

                                          18
procedural protection for persons with mental illness. In addition to providing the
right to counsel, the Legislature beginning in 1970 required trial courts to advise
mentally ill persons facing prolonged commitment of their right to demand a jury
trial. (Stats. 1970, ch. 1627, § 17, p. 3443.) This advisement requirement, now
codified at section 5302, is the basis of Barrett‘s equal protection claim.
       It was not until 1975 that the Legislature provided the right to counsel in
section 6500 proceedings. (Stats. 1975, ch. 694, § 27, p. 1651.) The 1975 act also
imposed a substantive time limit on commitment, providing that any order for
commitment would automatically expire after one year. (Ibid.) Any party
authorized to submit an original petition for commitment could file subsequent
petitions for additional one-year periods of commitment, and each subsequent
petition would follow the same procedures applicable to the original petition.
(Ibid.) These provisions remain in place today. (See § 6500.)
       Ten years after the LPS Act was passed, the Legislature in 1977 extended
the LPS Act‘s goal of ending ―inappropriate, indefinite, and involuntary
commitment‖ to individuals with developmental disabilities, a term defined to
include mental retardation. (Stats. 1977, ch. 1167, § 1, p. 3824 [former § 5001].)
At the same time, the Legislature enacted the Lanterman Developmental
Disabilities Services Act (Lanterman Act). (Stats. 1977, ch. 1252, § 550, p. 4521.)
The Lanterman Act expanded community-based treatment and habilitation
services for persons with a wide range of developmental disabilities, and it
declared that ―[p]ersons with developmental disabilities have the same legal rights
and responsibilities guaranteed all other individuals,‖ including ―[a] right to
dignity‖ (id., pp. 4521–4522, p. 4712, codified at § 4502, subd. (b)) and, as
provided by a 1992 amendment, a right ―to make choices in their own lives‖
(Stats. 1992, ch. 1011, § 3, codified at § 4502, subd. (j)). However, the Lanterman



                                          19
Act did not extend the LPS Act‘s full panoply of procedural and substantive
protections to persons facing commitment under section 6500.
       Since 1977, a number of amendments have been made to the section 6500
scheme. (See Stats. 1977, ch. 695, § 7, pp. 2248–2249 [providing a nonexclusive
definition of ―dangerousness‖ to include incompetence to stand trial for specific
provisions of the Penal Code]; Stats. 1978, ch. 1319, § 1, p. 4316 [repealing
definition of ―mentally retarded‖]; Stats. 1978, ch. 429, § 220, pp. 1462–1463
[amending list of Penal Code sections related to definition of ―dangerousness‖];
Stats. 1989, ch. 897, § 47, pp. 3079–3080 [same]; Stats. 1993, ch. 610, § 33,
pp. 3433–3435 [same]; Stats. 1994, ch. 224, § 10, pp. 1791–1792 [same]; Stats.
1996, ch. 1075, § 20, pp. 7237–7238 [same]; Assem. Bill No. 1472, approved by
Governor, June 27, 2012 (2011–2012 Reg. Sess.) [replacing the term ―mental
retardation‖ and similar terms with ―developmental disability‖ and enacting
substantive changes to the term of commitment].) But the basic procedures for
involuntary commitment under section 6500 have remained unchanged since the
mid-1970s. For the sake of consistency with today‘s majority opinion, I will cite
and quote from the section 6500 scheme as it existed at the time of Barrett‘s
commitment proceedings. (Maj. opn., ante, at pp. 1–2, fn. 2.)
                                          IV.
       With this historical context, I now turn to Barrett‘s equal protection claim,
beginning with an examination of today‘s opinion.
                                           A.
       In rejecting Barrett‘s claim, the court says ―the critical factor is the distinct
‗mentality‘ (§ 6507) covered by the two schemes.‖ (Maj. opn., ante, at p. 30.)
The court observes that mental disorders ―may arise suddenly and, for the first
time, in adulthood‖; that ―[t]he LPS Act process itself assumes that the need for
treatment may be temporary, and that disabling mental disorders may be

                                           20
intermittent or short-lived‖; and that ― ‗ ―mental illness ‗often strikes only limited
areas of functioning, leaving other areas unimpaired, and consequently . . . many
mentally ill persons retain the capacity to function in a competent
manner.‘ ‖ ‘ [Citation.]‖ (Id. at p. 31.) ―These characteristics suggest that the
mental conditions that create eligibility for an extended 180-day LPS Act
commitment, though they include imminent dangerousness, do not necessarily
imply incompetence or a reduced ability to understand, and make decisions about,
the conduct of the proceedings. Hence, nothing compels the conclusion that such
LPS Act patients will not benefit by the statutory right to a jury trial advisement
set forth in section 5302. By contrast, in the case of persons alleged to be mentally
retarded and dangerous under section 6500, the commitment process itself raises
substantial doubts about their cognitive and intellectual functioning sufficient to
limit the personal and procedural role they play. It follows that the two groups are
not similarly situated as to the function that Barrett implies an advisement like
section 5302 serves — comprehending and controlling the decision whether to
request a jury trial. Thus, any disparate statutory treatment with respect to jury
trial advisements does not deprive persons like Barrett of equal protection of the
law.‖ (Id. at pp. 31–32.)
       I do not disagree that there are real differences between persons facing
commitment under section 5300 and persons facing commitment under section
6500. But those differences, properly understood, do not support a categorical
distinction between the two groups with respect to a jury right advisement.
       As an initial matter, even if mental disorders are often temporary,
intermittent, or treatable with medication, it is not the case that all persons subject
to a 180-day commitment under the LPS Act are capable, at the time of the
proceeding, of comprehending a section 5302 advisement. Indeed, under the
graduated scheme of increasingly lengthy commitment set forth by the LPS Act

                                          21
(see §§ 5150 [initial 72-hour ―treatment and evaluation‖], 5250 [14-day
commitment for ―intensive treatment‖], 5270.15 [30-day commitment for
additional ―intensive treatment‖]), one can logically infer that many individuals
facing a 180-day commitment under section 5302 have mental disorders that are
not temporary, intermittent, or susceptible to effective treatment. The most the
court can say about ―the mental conditions that create eligibility for an extended
180-day LPS Act commitment‖ is that they ―do not necessarily imply
incompetence or a reduced ability to understand . . . the conduct of the
proceedings.‖ (Maj. opn., ante, at p. 31, italics added.) The implication is that at
least some (and probably many) potential committees under section 5300 will
have mental conditions that preclude comprehension of the proceedings. Those
individuals ―will not benefit by the statutory right to a jury trial advisement‖ (maj.
opn., ante, at p. 31), but the trial court is required to give the advisement anyway.
(§ 5302.)
       Just as there are individuals facing commitment under section 5300 who
cannot understand a jury right advisement, there are individuals facing
commitment under section 6500 who can. Why else would section 6500 say that
―[i]n any proceedings conducted under the authority of this article, the alleged
mentally retarded person shall be informed of his or her right to counsel by the
court . . . ‖? And why else would section 6504 say that ―[i]n all cases the court
shall require due notice of the hearing of the petition to be given to the alleged
mentally retarded person‖? These provisions do not imply that all potential
section 6500 committees can understand an advisement. But they appear to be
premised on the notion that a subset of potential committees can, for ―[t]he law
neither does nor requires idle acts.‖ (Civ. Code, § 3532.) That is not to say that a
jury trial advisement is required whenever a civil commitment statute requires
notice of the right to counsel. It is to say that the rationale for denying a jury trial

                                           22
advisement in section 6500 proceedings cannot be that persons subject to such
proceedings are categorically incapable of comprehending the advisement.
       As the United States Supreme Court has observed, persons who are
classified as mentally retarded comprise a ―large and diversified group,‖ ranging
―from those whose disability is not immediately evident to those who must be
constantly cared for.‖ (Cleburne, supra, 473 U.S. at p. 442; see Wald, Principal
Paper in The Mentally Retarded Citizen and the Law (The President‘s Committee
on Mental Retardation, 1976) p. 5 [―Retarded people, like all people, vary
enormously in talent, aptitude, personality, achievement, and temperament. . . .
Each person‘s capacities must be judged individually before he can be denied
rights of citizenship or humanity.‖].) ―The American Association on Mental
Deficiency (AAMD) has defined mental retardation as ‗ ―significantly subaverage
general intellectual functioning existing concurrently with deficits in adaptive
behavior and manifested during the developmental period.‖ ‘ ‖ (Cleburne, supra,
473 U.S. at p. 443, fn. 9.) With respect to intellectual functioning, persons
diagnosed as mentally retarded typically have an IQ of 70 to 75 or below. (Amer.
Assn. on Mental Retardation, Mental Retardation: Definition, Classification, and
Systems of Supports (10th ed. 2002) pp. 57–58 (AAMR).) But among such
individuals, there are significant differences in cognitive abilities.
       The AAMR guidelines specify four different degrees of mental retardation,
from mild to profound. According to that classification system, an adult with an
IQ between 50 and 70 is deemed to have ―mild‖ mental retardation. (AAMR,
supra, at p. 104; see also Cleburne, supra, 473 U.S. at p. 442, fn. 9.) A mildly
mentally retarded person is ―[l]ikely to [have] some learning difficulties in
school,‖ but ―[m]any adults will be able to work and maintain good social
relationships and contribute to society.‖ (AAMR, at p. 104.) Mild mental
retardation in adults is equivalent to a ―mental age from 9 to under 12 years.‖

                                           23
(Ibid.) As to what such a ―mental age‖ might mean, I note that California‘s
history and social studies curriculum expects fifth-graders to be able to learn,
among other things, ―the significance of the new Constitution of 1787, including
the struggles over its ratification and the reasons for the addition of the Bill of
Rights.‖ (Cal. Department of Education, History-Social Science Framework for
California Public Schools Kindergarten Through Grade Twelve (2005) p. 73.)
Many fifth-graders are no doubt capable of understanding the importance of trial
by jury.
       The vast majority of persons who are mentally retarded are classified as
mildly retarded (see Cleburne, supra, 473 U.S. at p. 442, fn. 9), although it is
unclear what proportion of individuals facing commitment under section 6500 are
mildly retarded. But it must be remembered that the class of individuals denied
the right to advisement by section 6500 is not limited to individuals who are, in
fact, mentally retarded. Rather, it is comprised of persons alleged to be mentally
retarded. The statutory scheme does not presume that an individual subject to a
section 6500 proceeding is mentally retarded. Instead, it repeatedly refers to an
―alleged mentally retarded person‖ (§§ 6500, 6504, 6504.5, 6505, 6506, 6507,
italics added), and the section 6500 proceeding is designed to determine whether a
person is mentally retarded and dangerous. Assuming that some potential
committees are found not to be mentally retarded, the range of cognitive abilities
among persons subject to section 6500 proceedings is even broader than the range
of such abilities among persons found to be mentally retarded.
       In discussing Barrett‘s due process claim, the court cites several of our
cases for the proposition that persons who are mentally impaired are unable to act
in their own best interests and concludes that ―[s]imilar logic applies here.‖ (Maj.
opn., ante, at p. 23.) But none of those cases supports the categorical denial of a
jury trial advisement to persons alleged to be mentally retarded under section

                                          24
6500. People v. Masterson (1994) 8 Cal.4th 965 addressed waiver, not
advisement, of the jury trial right in the context of a criminal competence hearing,
and unlike the process for initiating a section 6500 proceeding (see post, at pp. 26–
28), there must be ― ‗substantial evidence‘ rais[ing] a ‗ ―reasonable doubt‖ ‘ ‖ as to
the defendant‘s competence before a hearing is conducted on the issue. (Maj.
opn., ante, at p. 22, fn. 16.) In Thorn v. Superior Court (1970) 1 Cal.3d 666, 674–
675, we observed that a mentally ill person facing involuntary 14-day treatment
under the LPS Act may lack the capacity to comprehend his statutory rights. Yet
we made that observation not as a reason to dispense with statutorily required
advisements (Thorn, at p. 674), but as a reason to establish additional ―procedures
. . . which will assure that the patient‘s rights receive meaningful protection‖ (id. at
p. 675). Finally, it is true that In re Hop (1981) 29 Cal.3d 82, 90–91 recognized
that a ―developmentally disabled adult too incompetent to admit herself to a
mental hospital was not competent to protest or consent to hospitalization by third
parties under the [Lanterman Act].‖ (Maj. opn., ante, at p. 23.) But the court
nevertheless held that such developmentally disabled individuals are, as a matter
of equal protection, ―entitled to the same congeries of rights‖ made available to
―proposed conservatees under the Lanterman-Petris-Short Act.‖ (In re Hop, at
p. 93.)
                                           B.
          Today‘s opinion says that ―the commitment process itself raises substantial
doubts about [potential committees‘] cognitive and intellectual functioning
sufficient to limit the personal and procedural role they play.‖ (Maj. opn., ante, at
pp. 31-32, italics added; see id. at p. 3 [―The section 6500 procedure itself
undermines Barrett‘s assumption that persons alleged to be mentally retarded and
dangerous can necessarily decide for themselves, in a knowing and intelligent
manner, whether to demand a jury at their commitment trials.‖].) According to the

                                           25
court, the section 6500 process begins when ―a responsible and interested party‖
requests the filing of a section 6500 petition. (Maj. opn., ante, at p. 25.) The
requesting party presents ―strong evidence‖ (id. at p. 3) and ―specific information‖
(id. at p. 25), verified by affidavit, that the individual is mentally retarded. After
the petition is filed, the trial court receives a ―professional pretrial evaluation‖ of
the individual and ―informed recommendations on treatment and placement‖ from
the regional center. (Id. at p. 25.) This account of the process leads the court to
conclude that ―someone like Barrett, who is alleged to be mentally retarded and
dangerous under section 6500, is not in a position . . . to sufficiently comprehend
the jury trial advisement . . . .‖ (Id. at pp. 25–26.)
       According to the court, the process that sets in motion a section 6500
proceeding effectively identifies persons who are in fact, or should be presumed to
be, not only mentally retarded but so much so that they cannot understand a jury
trial advisement. But, as previously noted (ante, at p. 22), such a conclusion
defies the essential premise underlying other advisements that a court must give in
a section 6500 proceeding. Moreover, in describing the commitment process, the
court applies its own gloss instead of focusing on what the statute actually says.
       Section 6502 requires that a request for the filing of a section 6500 petition
―shall state the petitioner‘s reasons for supposing the person to be eligible for
[commitment], and shall be verified by affidavit‖ — nothing more. The statute
contains no requirement that the reasons be ―strong‖ (maj. opn., ante, at p. 3) or
―specific‖ (id. at p. 25), nor does it otherwise specify what quantum of evidence is
necessary to trigger the filing of a section 6500 petition. Further, the court
describes the persons authorized to request a petition (a parent, guardian,
conservator, probation officer, corrections official, or regional center director,
among others) as ―responsible and interested‖ parties. (Maj. opn., ante, at p. 25.)
This may be true in most cases, but the statute plainly contemplates exceptions.

                                           26
(See §§ 6510 [―In case of the dismissal of the petition, the court may, if it
considers the petition to have been filed with malicious intent, order the petitioner
to pay the expenses in connection therewith . . . .‖], 6511 [―Any person who
knowingly contrives to have any person adjudged to be mentally retarded under
the provisions of this article, unlawfully or improperly, is guilty of a
misdemeanor.‖].) Even apart from circumstances as fraught as Carrie Buck‘s, it is
not hard to imagine scenarios in which the physical, emotional, or financial costs
of caring for a ―difficult‖ adult child or ward may result in a section 6500
commitment proceeding that is neither necessary nor appropriate for that
individual. (See Heller v. Doe (1993) 509 U.S. 312, 347 (dis. opn. of Souter, J.)
[parents, guardians, and close family members may have interests adverse to an
allegedly retarded person facing commitment] (Heller).) And even when the
request and petition process does identify a person who is mentally retarded, it
cannot be assumed that the person cannot comprehend a jury trial advisement.
(Ante, at pp. 22-24.)
       Furthermore, it is true that section 6504.5 requires the regional center to
provide a professional evaluation and informed recommendations to aid the trial
court. But the regional center‘s report has no bearing whatsoever on who is made
subject to a section 6500 petition. That is because the trial court requests and
receives the report after the petition has already been filed. (§ 6504.5 [―Wherever
a petition is filed pursuant to this article, the court shall appoint the director of a
regional center . . . , or the designee of the director, to examine the alleged
mentally retarded person. [¶] Within 15 judicial days after his or her
appointment, the regional center director or designee shall submit to the court in
writing a report . . . .‖].) The report does not help to establish at the time the
petition is filed that the person alleged to be mentally retarded and dangerous is in



                                           27
fact a person who is ―not in a position . . . to sufficiently comprehend the jury trial
advisement‖ (maj. opn., ante, at p. 26).
       In addition, although regional centers undoubtedly provide valuable
services to needy clients and helpful expertise to our trial courts, we have
acknowledged that budgetary considerations place a ―subtle strain . . . on the
center‘s impartial neutrality and detachment.‖ (In re Hop, supra, 29 Cal.3d at
p. 92.) The court in In re Hop unanimously observed that regional centers face
―subtle pressure favoring hospital treatment as opposed to community placement
of the ward. Local community placement may be difficult to locate and also
expensive, and its cost may be borne locally by a regional center‘s budget.
Hospital placements are funded from statewide sources.‖ (Ibid.) This concern
provides an additional reason to reject the court‘s unqualified confidence that a
person subject to a section 6500 proceeding is a person who is so cognitively
impaired that he or she cannot understand a jury trial advisement.
       In sum, the distinction between persons facing commitment under section
5300 and persons facing commitment under section 6500 is not a distinction
between who can understand a jury trial advisement and who cannot. There are
many individuals facing commitment under section 5300 who cannot understand
such an advisement, and there are many individuals facing commitment under
section 6500 who can. If there is a rational basis for requiring an advisement for
one group but not the other, it cannot rest on a categorical description of the
capabilities of one or both groups.
                                           V.
       A different response to Barrett‘s equal protection claim is that the
Legislature could have differentiated between section 5300 and section 6500
proceedings on the basis of generalizations rather than categorical claims about
the two groups facing commitment. The Legislature could have assumed that

                                           28
most potential section 5300 committees can understand a jury trial advisement,
whereas most potential section 6500 committees cannot. Or the Legislature could
have speculated that the share of individuals capable of understanding an
advisement is simply greater among persons facing commitment under section
5300 than among persons facing commitment under section 6500. In essence, this
is a rationale based on administrative burdens. Although not every person facing
commitment under section 6500 is incapable of understanding an advisement, the
Legislature could have assumed that the share of persons under section 6500 with
that ability, compared to the share of such persons under section 5300, is not large
enough to justify burdening the trial courts with giving an advisement in every
case.
        Further, the court posits an additional rationale for the legislative scheme:
―Nothing compels the state ‗to choose between attacking every aspect of a
problem or not attacking the problem at all.‘ [Citation.] Far from having to ‗solve
all related ills at once‘ [citation], the Legislature has ‗broad discretion‘ to proceed
in an incremental and uneven manner without necessarily engaging in arbitrary
and unlawful discrimination. [Citations.]‖ (Maj. opn., ante, at pp. 32–33.) The
argument is that the Legislature may proceed ―one step at a time.‖ (Williamson v.
Lee Optical Co. (1955) 348 U.S. 483, 489 (Lee Optical).)
        In considering the ―administrative burden‖ and ―one step at a time‖
rationales, I begin by observing that these two justifications for legislative
classification are hallmarks of conventional rational basis review, a highly
deferential standard of equal protection review paradigmatically applicable to
social and economic legislation. (E.g., FCC v. Beach Communications, Inc.
(1993) 508 U.S. 307, 314–320 [applying ―regulatory-efficiency‖ rationale to
uphold statutory definition of ―cable system‖] (Beach Communications); Lee
Optical, supra, 348 U.S. at p. 489 [applying ―one step at a time‖ rationale to

                                          29
uphold statute that prohibited opticians, but not sellers of ready-to-wear glasses,
from fitting or duplicating lenses without a prescription from an optometrist or
ophthalmologist]; American Bank & Trust Co. v. Community Hospital (1984) 36
Cal.3d 359, 374 [applying ―administrative costs‖ rationale to uphold statute
authorizing periodic payment procedure for some but not all medical malpractice
victims] (American Bank).) The ―irrelevan[ce]‖ of ―whether the conceived reason
for the challenged distinction actually motivated the legislature‖ is also
characteristic of conventional rational basis review. (Beach Communications, at
p. 315.) The inquiry examines what the Legislature could have believed because
the statutory classification must be upheld ―if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification.‖ (Id. at
p. 313.) The Legislature need not actually articulate its rationale, and ―a
legislative choice . . . may be based on rational speculation unsupported by
evidence or empirical data.‖ (Id. at p. 315.)
       If conventional rational basis review were applicable here, I would have no
difficulty upholding the distinction between section 5300 and section 6500
proceedings in terms of jury trial advisement, because either the ―administrative
burden‖ or the ―one step at a time‖ rationale is within the realm of rational
legislative speculation. The question, however, is whether conventional rational
basis review is the appropriate standard here. We are not dealing in this case with
a legislative classification that distinguishes among cable operators, eye care
specialists, or medical malpractice victims. The statutory schemes at issue here
draw a distinction between mentally disordered and allegedly mentally retarded
persons subject to involuntary commitment, ensuring for one while denying to the
other an advisement of the right to trial by jury. As I explain below, conventional
rational basis review is not the proper standard in this context.



                                           30
                                           A.
       In Cleburne, supra, 473 U.S. 432, the United States Supreme Court
considered an equal protection challenge to a city ordinance that required a special
permit for locating a group home for mentally retarded persons in a residential
neighborhood. The high court began its analysis by examining whether mental
retardation is a quasi-suspect classification calling for heightened scrutiny. (Id. at
p. 442.) Observing that there are ―real and undeniable differences between the
retarded and others‖ (id. at p. 444) and that many federal and state policies
specifically seek to benefit and address the needs of mentally retarded persons (id.
at pp. 443–445 [discussing various education, habilitation, and antidiscrimination
statutes]), the court expressed concern that ―merely requiring the legislature to
justify its efforts‖ in the terms required by heightened scrutiny ―may lead it to
refrain from acting at all‖ (id. at p. 444). For this reason, among others, the court
―refus[ed] to recognize the retarded as a quasi-suspect class‖ and instead held that
―legislation that distinguishes between the mentally retarded and others must be
rationally related to a legitimate governmental purpose.‖ (Id. at p. 446.) ―This
standard, we believe, affords government the latitude necessary both to pursue
policies designed to assist the retarded in realizing their full potential, and to freely
and efficiently engage in activities that burden the retarded in what is essentially
an incidental manner.‖ (Ibid.)
       In applying this standard of review, the high court observed that the city
ordinance required a special permit for a group home for the mentally retarded but
not for many other uses, including apartment houses, multiple dwellings, boarding
houses, fraternity or sorority houses, dormitories, apartment hotels, hospitals,
sanitariums, nursing homes, and private clubs. (Cleburne, supra, 473 U.S. at
p. 447.) The court then proceeded to consider several possible justifications for
this differential treatment. First, it noted that the Cleburne city council ―was

                                           31
concerned with the negative attitude of the majority of property owners . . . , as
well as with the fears of elderly residents of the neighborhood.‖ (Id. at p. 448.)
The court rejected this rationale on the ground that ―mere negative attitudes, or
fear, unsubstantiated by factors which are properly cognizable in a zoning
proceeding, are not permissible bases for treating a home for the mentally retarded
differently from apartment houses, multiple dwellings, and the like.‖ (Ibid.,
quoting Palmore v. Sidoti (1984) 466 U.S. 429, 433 [―Private biases may be
outside the reach of the law, but the law cannot, directly or indirectly, give them
effect.‖].)
       Second, the city council was concerned that students at a nearby middle
school ―might harass the occupants‖ of the group home. (Cleburne, supra, 473
U.S. at p. 449.) The court said that ―denying a permit based on such vague,
undifferentiated fears is again permitting some portion of the community to
validate what would otherwise be an equal protection violation.‖ (Ibid.) Third, in
response to the city council‘s concern that the group home would be located on a
flood plain, the court said the possibility of a flood did not justify treating a group
home for the mentally retarded differently from nursing homes, sanitariums, or
hospitals. (Ibid.) The court was similarly unpersuaded by the city council‘s
―doubts about the legal responsibility for actions which the mentally retarded
might take,‖ finding it ―difficult to believe‖ that the group home ―would present
any different or special hazard‖ than boarding or fraternity houses. (Ibid.)
       Fourth, ―the Council was concerned with the size of the home and the
number of people that would occupy it.‖ (Cleburne, supra, 473 U.S. at p. 449.)
The court again reasoned that it ―is not at all apparent‖ why a group home for the
mentally retarded ―warrants a density regulation that others need not observe.‖
(Id. at p. 450.) ―At least this record does not clarify how . . . the characteristics of
the intended occupants of the [group] home rationally justify denying to those

                                           32
occupants what would be permitted to groups occupying the same site for different
purposes.‖ (Ibid.) Finally, the city expressed concern about ―avoiding
concentration of population and . . . lessening congestion of the streets‖ as well as
―fire hazards, the serenity of the neighborhood, and the avoidance of danger to
other residents.‖ (Ibid.) But the court said: ―These concerns obviously fail to
explain why apartment houses, fraternity and sorority houses, hospitals and the
like, may freely locate in the area without a permit.‖ (Ibid.)
       The high court concluded that ―in our view the record does not reveal any
rational basis for believing that the [group] home would pose any special threat to
the city‘s legitimate interests‖ and thus invalidated the city ordinance as applied to
the group home in that case. (Cleburne, supra, 473 U.S. at p. 448.) All nine
justices in Cleburne agreed that the application of the city ordinance to require a
special permit for the group home was unconstitutional. The majority opinion
reflected the views of six justices. The other three justices would have gone
further to hold that classification on the basis of mental retardation calls for
heightened scrutiny and that the city ordinance was invalid not only as applied but
also on its face. (Id. at p. 478 (conc. & dis. opn. of Marshall, J.).)
       I have presented Cleburne‘s equal protection analysis in some detail
because a careful reading of it confirms what many commentators have long
observed: In addressing a statutory classification based on mental retardation,
Cleburne did not apply conventional rational basis review. (E.g., Tribe, American
Constitutional Law (2d ed. 1988) §§ 16–33, p. 1615 [Cleburne ―appl[ied]
heightened scrutiny, despite ostensible application of the minimum rationality
test‖]; Wilkinson, The Dual Lives of Rights: The Rhetoric and Practice of Rights
in America (2010) 98 Cal. L.Rev. 277, 296, fn. 117 [Cleburne ―applied rational
basis review with bite‖]; Pettinga, Rational Basis with Bite: Intermediate Scrutiny
by Any Other Name (1987) 62 Ind. L.J. 779, 793–796 [same].) As Justice

                                           33
Marshall said, ―Cleburne‘s ordinance surely would be valid under the traditional
rational-basis test applicable to economic and commercial regulation.‖ (Cleburne,
supra, 473 U.S. at p. 456 (conc. & dis. opn. of Marshall, J.).) ―To be sure, the
Court does not label its handiwork heightened scrutiny,‖ but ―Cleburne‘s
ordinance is invalidated only after being subjected to precisely the sort of probing
inquiry associated with heightened scrutiny.‖ (Id. at p. 458.)
       Whatever the label, Cleburne‘s analysis has two telling features that
distinguish it from ordinary rational basis review. First, Cleburne repeatedly
rejected the ―one step at a time‖ rationale for requiring only the group home for
the mentally retarded to obtain a special permit. There was nothing inherently
irrational about the city‘s contention that the group home presented concerns about
flood risks, legal liability, density, and congestion. What Cleburne found
irrational was the city‘s failure to extend the permit requirement to other uses
implicating the same concerns. This analysis defies the usual deference given to
the legislature ―to proceed in an incremental and uneven manner without
necessarily engaging in arbitrary and unlawful discrimination.‖ (Maj. opn., ante,
at p. 33.)
       Second, Cleburne expressly noted that ―the record‖ did not support the
city‘s asserted justifications for treating the group home differently. (Cleburne,
supra, 473 U.S. at p. 448 [―[I]n our view the record does not reveal any rational
basis for believing that the [group] home would pose any special threat to the
city‘s legitimate interests . . . .‖ (italics added)]; id. at p. 450 [―At least this record
does not clarify how . . . the characteristics of the intended occupants of the
[group] home rationally justify [differential treatment].‖ (italics added)].)
Cleburne‘s insistence on record support for the city‘s proffered rationales marks a
clear departure from the ordinary rule that ―legislative choice . . . may be based on
rational speculation unsupported by evidence or empirical data.‖ (Beach

                                            34
Communications, supra, 508 U.S. at p. 315.) It was not irrational to speculate that
the group home would present greater risks of legal liability or flood-related harms
than other uses of the neighborhood. Nor was it irrational for the city to argue that
―the discrimination was really motivated by a desire to protect the mentally
retarded from the hazards presented by the neighborhood.‖ (Cleburne, supra, 473
U.S. at p. 455 (conc. opn. of Stevens, J.).) But the high court declined to uphold
the permit requirement on the basis of such rational speculation in the absence of
record support.
                                         B.
       Since Cleburne, the high court has addressed a statutory classification
based on mental retardation in one other case, Heller v. Doe, supra, 509 U.S. 312
(Heller), which involved an equal protection challenge to differences in the
statutory procedures for involuntary commitment of persons alleged to be mentally
ill and persons alleged to be mentally retarded. Kentucky‘s civil commitment
statutes required proof of mental illness beyond a reasonable doubt, but required
proof of mental retardation only by clear and convincing evidence. (Id. at p. 315.)
In addition, Kentucky law authorized guardians and immediate family members,
whether friendly or adverse to the potential committee, to participate as parties in
commitment proceedings based on alleged mental retardation but not in
proceedings based on alleged mental illness. (Ibid.) A class of persons
involuntarily committed on the basis of mental retardation challenged both
statutory distinctions.
       In its equal protection analysis, the high court applied rational basis review
and described the standard at some length. (Heller, supra, 509 U.S. at pp. 319–
321.) Quoting extensively from a broad range of cases examining social and
economic legislation, the court returned to the propositions that the legislature
―need not ‗actually articulate at any time the purpose or rationale supporting its

                                         35
classification‘ ‖ (id. at p. 320), that the legislature ―has no obligation to produce
evidence to sustain the rationality of a statutory classification‖ (ibid.), and that ―a
legislature‘s generalizations‖ must be accepted ―even when there is an imperfect
fit between means and ends‖ (id. at p. 321). The court‘s opinion mentioned
Cleburne once, simply noting: ―We have applied rational-basis review in previous
cases involving the mentally retarded and the mentally ill. See Cleburne v.
Cleburne Living Center, Inc., 473 U.S. 432 (1985) . . . .‖ (Heller, at p. 321.)
       Applying conventional rational basis review, the high court reasoned that
Kentucky‘s different burdens of proof for mental illness and mental retardation
could be justified on several reasonably conceivable grounds: the greater
difficulty of diagnosing mental illness compared to diagnosing mental retardation,
the greater accuracy of determining dangerousness based on past behavior in the
case of mental retardation as opposed to mental illness, and the more invasive
treatment to which the mentally ill are subjected as compared to the mentally
retarded. (Heller, supra, 509 U.S. at pp. 322–326.) Four justices dissented from
this part of the court‘s opinion, noting the absence of record support for any of the
hypothesized rationales and citing numerous scientific authorities casting doubt on
the generalization that treatments for the mentally retarded are less invasive than
treatments for the mentally ill. (Id. at pp. 337–346 (dis. opn. of Souter, J.).)
       As for Kentucky‘s different rules for participation of guardians and family
members as parties in commitment proceedings, the high court said the distinction
could plausibly be based on a greater need for privacy among persons diagnosed
as mentally ill and on the greater likelihood that guardians and family members
will have knowledge helpful to the trier of fact in the case of persons alleged to be
mentally retarded as opposed to mentally ill. (Heller, supra, 509 U.S. at pp. 328–
330.) On this point, three justices dissented, noting no record support for the
court‘s speculative generalization concerning the privacy needs of the two groups.

                                           36
(Id. at pp. 346–349 & fn. 9 (dis. opn. of Souter, J.).) The dissenters also explained
that even if guardians and family members are more likely to have knowledge
helpful to the fact finder in cases of alleged mental retardation as opposed to
alleged mental illness, ―[t]he Court simply points to no characteristic of mental
retardation that could rationally justify‖ the participation of guardians and family
members not only as witnesses but as parties — in essence, ―a second prosecutor‖
— in one proceeding but not the other. (Id. at p. 347.)
       It is evident, as the dissenters observed, that although ―Cleburne was the
most recent instance in which [the high court] addressed a classification on the
basis of mental disability,‖ Heller did not apply Cleburne‘s analysis yet made no
effort to distinguish it. (Heller, supra, 509 U.S. at p. 337 (dis. opn. of Souter, J.);
see ibid. [―While the Court cites Cleburne once, and does not purport to overrule
it, neither does the Court apply it, and at the end of the day Cleburne‘s status is
left uncertain.‖].) The closely divided court‘s unexplained departure from
Cleburne, in which all nine justices endorsed at least the level of equal protection
scrutiny applied by the majority opinion, detracts from Heller‘s persuasive force in
informing the proper interpretation of the equal protection guarantee under our
state Constitution. (Cal. Const., art. I, § 7, subd. (a); see id., § 24 [―Rights
guaranteed by this Constitution are not dependent on those guaranteed by the
United States Constitution‖].)
       More to the point, the primary thesis of the court‘s opinion in Heller is that
differences in commitment procedures reflect real differences between mental
illness and mental retardation as opposed to ―irrational prejudice against the
mentally retarded‖ (Cleburne, supra, 473 U.S. at p. 450). The problem, however,
is that the critical question of whether a classification based on mental retardation
reflects real differences as opposed to irrational prejudice cannot be reliably
answered without at least the level of analysis undertaken in Cleburne. Indeed, if

                                           37
any reasonably conceivable state of facts could support such a classification, then
the permit requirement in Cleburne should have been upheld. For there are many
generalizations within the realm of rational speculation that could have supported
one or several of the city‘s proffered justifications for distinguishing between
mentally retarded persons and others. Without insisting on record facts to support
those generalizations, there is no way to know whether they actually reflect real
differences or simply assumptions consciously or unconsciously shaped by ― ‗a
history of unfair and often grotesque mistreatment‘ ‖ (id. at p. 454 (conc. opn. of
Stevens, J.)).
       The high court‘s observation in Heller, citing Blackstone and others, that
―differences in treatment between the mentally retarded and the mentally ill . . .
have long existed in Anglo-American law‖ further illustrates the point. (Heller,
supra, 509 U.S. at p. 326; see ibid. [―At English common law there was a ‗marked
distinction‘ in the treatment accorded ‗idiots‘ (the mentally retarded) and ‗lunatics‘
(the mentally ill). [Citation.]‖].) How are we to know whether such historical
practices were grounded in real differences or in prevailing prejudices of the sort
that the archaic and pejorative labels seem to imply? As Justice Souter said,
―[s]urely the Court does not intend to suggest that the irrational and scientifically
unsupported beliefs of pre-19th-century England can support any distinction in
treatment between the mentally ill and the mentally retarded today.‖ (Id. at p. 345,
fn. 6 (dis. opn. of Souter, J.); see ibid. [―At that time, ‗lunatics‘ were ‗[s]een as
demonically possessed or the products of parental sin [and] were often punished or
left to perish.‘ [Citation.] The primary purpose of an adjudication of ‗idiocy‘
appears to have been to ‗depriv[e] [an individual] of [his] property and its profits.‘
[Citation.]‖].) It may well be that ―there is a commonsense distinction between
the mentally retarded and the mentally ill.‖ (Id. at pp. 326–327 (maj. opn.).) But



                                           38
common sense may sometimes be wrong, or it may provide no support for a
particular legislative classification.
       California is among the majority of states with separate commitment
schemes for mentally ill and mentally retarded individuals. Traditionally,
commitment statutes for the mentally retarded ―provided less procedural
protection than commitment statutes for the mentally ill and were less explicit with
respect to commitment criteria . . . .‖ (Melton et al., Psychological Evaluations for
the Courts: A Handbook for Mental Health Professionals and Lawyers (2d ed.,
1997) p. 333 (Melton).) California‘s commitment statutes reflect the general
pattern. As discussed earlier (ante, at pp. 16–19), the LPS Act as enacted in 1967
provided a right to counsel for persons alleged to be mental ill, and by 1970, the
LPS Act guaranteed such persons facing prolonged commitment the right to
demand a jury trial as well as an advisement of that right. By contrast, the section
6500 scheme did not include a right to counsel for persons alleged to be mentally
retarded until 1975, and the right to a jury trial has been secured gradually through
case law (see maj. opn., ante, at pp. 14–15 & fn. 14).
       In explaining these disparities, one authority has observed that ―the law‘s
approach to people with mental retardation, premised on the irreversibility of their
condition, was less solicitous of their property and person than was the case with
people suffering from mental illness. In addition, there may have been an
underlying assumption that people with mental retardation require less legal
protection because they are more easily identifiable than people with mental
illness and thus are less likely to be committed arbitrarily.‖ (Melton, supra, at
p. 333.) But the same authority concludes that such distinctions are ―unjustified‖:
―In reality, there is no reason for treating individuals differently based on their
diagnosis as far as the legal structure for commitment is concerned. The line
between ‗mental retardation‘ and ‗normal‘ intellectual and adaptive functioning is

                                          39
as difficult to discern as that between ‗mental illness‘ and ‗mental health.‘ ‖
(Ibid.)
          I would not go so far as to suggest that there must be strict equality between
the commitment procedures applicable to mental illness and mental retardation.
Such a broad rule, whether correct or not, is not necessary to decide this case. The
question here is whether a difference in procedure concerning jury trial
advisement can be justified on the basis of real differences between the two groups
as opposed to some latent bias. As Cleburne recognized, that question cannot be
answered by simply positing any reasonably conceivable state of facts concerning
the two groups. Instead, the ―record [must] clarify how . . . the characteristics of
[persons facing commitment under section 6500] rationally justify denying to
[them]‖ the advisement to which persons facing commitment under section 5300
are entitled. (Cleburne, supra, 473 U.S. at p. 450.)
                                            C.
          The evolution of public policy and scientific understanding over the past
half-century has not effaced the distinction between mental illness and mental
retardation. Instead, it has reinforced the principle implicit in Cleburne that
unsupported generalizations about any group based on mental disability carry a
substantial risk of harm. As recounted above (ante, at pp. 16–19), legal reforms
extending civil rights and other protections to persons with mental illness have
tended to precede similar reforms affecting persons with mental retardation. But a
number of developments since the 1970s, when section 6500 largely took its
current form, have sought to counter the historic tendency to treat persons with
mental retardation on the basis of categorical and unfounded assumptions of
deficits and incapacities, and instead to enable each person to realize and act on
his or her individual abilities.



                                            40
       The 1970s saw a wave of legislation advancing the rights of individuals
with disabilities. (See Rothstein & Irzyk, Disabilities and the Law (4th ed. 2012)
pp. 4–7, 28–29.) Congress enacted the Rehabilitation Act of 1973, which
addressed vocational rehabilitation and employment opportunities for individuals
with physical or mental disabilities. (Pub.L. No. 93-112 (Sept. 26, 1972) 87 Stat.
355.) Section 501 of the Rehabilitation Act requires nondiscrimination and
affirmative action by federal employers (29 U.S.C. § 791), and section 503 of the
act does the same for federal contractors (29 U.S.C. § 793). Section 504 of the
Rehabilitation Act — ―the most significant federal protection for individuals with
disabilities‖ until the Americans with Disabilities Act of 1990 (Rothstein & Irzyk,
at p. 5) — requires nondiscrimination and reasonable accommodation by
recipients of federal money (29 U.S.C. § 794), including schools, public facilities,
transportation agencies, and health and welfare services. These requirements
reflect Congress‘s policy of ―respect for individual dignity, personal
responsibility, self-determination, and pursuit of meaningful careers, based on
informed choice, of individuals with disabilities.‖ (29 U.S.C. § 701(c)(1).)
       In 1975, Congress enacted the Education for All Handicapped Children
Act, which exemplified the emerging principle of treating persons with disabilities
on the basis of individual ability: ―It is the purpose of this Act to assure that all
handicapped children have available to them . . . a free appropriate public
education which emphasizes special education and related services designed to
meet their unique needs . . . .‖ (Pub.L. No. 94-142, § 3 (Nov. 29, 1975) 89 Stat.
773.) This legislation along with its successor, the Individuals with Disabilities
Education Act (Pub.L. No. 101-476, § 901 (Oct. 30, 1990) 104 Stat. 1103),
established the entitlement of each child with a disability to an individualized
education program ―tailored to a child‘s unique needs [and] designed by the school



                                           41
district in consultation with the child‘s parents.‖ (Forest Grove School Dist. v.
T. A. (2009) 557 U.S. 230, 234, fn. 1; see 20 U.S.C. §§ 1412(a)(4), 1414(d).)
       Also in 1975, Congress enacted the Developmentally Disabled Assistance
and Bill of Rights Act, which called for individualized treatment and services:
―The treatment, services, and habilitation for a person with developmental
disabilities should be designed to maximize the developmental potential of the
person and should be provided in the setting that is least restrictive of the person‘s
personal liberty.‖ (Pub.L. No. 94-103, § 201 (Oct. 4, 1975) 89 Stat. 486.) As a
condition of receiving federal funding under this law and its successor statutes,
each state is required to adopt a plan that assures, among other things, that ―any
direct services provided to individuals with developmental disabilities and funded
under the plan will be provided in an individualized manner, consistent with the
unique strengths, resources, priorities, concerns, abilities, and capabilities of such
individual.‖ (42 U.S.C. § 15024(c)(5)(G).)
       In 1990, Congress passed the Americans with Disabilities Act (ADA),
prohibiting discrimination against individuals with physical or mental disabilities.
(Pub.L. No. 101-336 (July 26, 1990) 104 Stat. 327.) Notably, the ADA forbids
discrimination based on ―an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity.‖
(42 U.S.C. § 12102(3)(A).) The workplace nondiscrimination and reasonable
accommodation requirements of the ADA continue Congress‘s policy of ensuring
that persons with disabilities are treated on the basis of their individual talents and
abilities rather than their actual or perceived limitations. (42 U.S.C. §§ 12111(8),
(9), 12112(b).)
       Recent legislation has changed the language that statutes use to refer to
individuals with disabilities. In 2010, Congress replaced the phrase ―mental
retardation‖ with ―intellectual disability‖ in the federal codes. (Pub.L. No. 111-

                                          42
256 (Oct. 5, 2010) 124 Stat. 2643.) Although such changes are sometimes
disparaged as acts of political correctness, a Senate report explained: ―[T]he terms
‗mentally retarded,‘ ‗mental retardation,‘ and variations of these terms, to describe
individuals with intellectual disabilities are anachronistic, needlessly insensitive
and stigmatizing, and clinically outdated. Terms to describe individuals with
intellectual disabilities have gone through a steady evolution over the past two
centuries, each iteration describing those living with the condition in a pejorative
way. At the turn of the 20th century, people who were viewed as having
limitations in intellectual advancement and social behavior were institutionalized.
The prevailing sentiment at the time being that such people could not, should not,
interact with people without disabilities. [¶] ‗Imbecile,‘ ‗moron,‘ ‗idiot,‘ and
‗feeble-minded‘ are all terms which have been used to reference people with
cognitive disabilities by the public and in our Federal statutes. Each of these terms
focused on perceived deficiencies to describe such individuals. The most recent
term — ‗mental retardation‘ — was used to characterize those with cognitive
disabilities as having general diminished capacities for cognitive functioning.
Physicians, advocates, and law makers now understand that this term does not
accurately describe these individuals.‖ (Sen.Rep. No. 111-244, 2d Sess., p. 2
(2010).) Just weeks ago, our Legislature similarly replaced the term ―mental
retardation‖ and related language with ―developmental disability‖ throughout the
section 6500 scheme. (Assem. Bill No. 1472, approved by Governor, June 27,
2012 (2011–2012 Reg. Sess.).)
       All of these developments have sought to overcome the historical practice
in our nation and our state of categorically treating persons with intellectual
disabilities as incapable of understanding their own circumstances or participating
in public institutions and civic life. To be sure, there are real differences between
persons with such disabilities and others. Such differences, however, can only be

                                          43
distinguished from entrenched and possibly unfounded assumptions by insisting
on an actual, demonstrable basis — and not mere hypothesis or conjecture — for
treating people differently because of that disability.
                                          D.
       For the foregoing reasons, I would hold as a matter of state equal protection
law that the Cleburne standard is the proper standard of review for evaluating
statutory classifications based on mental retardation. Whatever Cleburne‘s status
may be as a matter of federal law after Heller, we have long noted that ―our state
equal protection provisions, while ‗substantially the equivalent of‘ the guarantees
contained in the Fourteenth Amendment to the United States Constitution, are
possessed of an independent vitality which, in a given case, may demand an
analysis different from that which would obtain if only the federal standard were
applicable.‖ (Serrano v. Priest (1976) 18 Cal.3d 728, 764.) The independent
vitality of our state equal protection guarantee has led this court to hold — upon
canvassing judicial, legislative, and other historical developments in a similar
manner as I have done here — that strict scrutiny applies to laws that discriminate
on the basis of sexual orientation or gender, even though federal courts review
such laws under less stringent standards. (Compare In re Marriage Cases (2008)
43 Cal.4th 757, 821–823, 843–844, and Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d
1, 17–20 with Romer v. Evans (1996) 517 U.S. 620, 631–635, and Mississippi
Univ. for Women v. Hogan (1982) 458 U.S. 718, 724.) Consistent with this
interpretive tradition, I conclude that Cleburne‘s rational basis scrutiny applies as
a matter of state law to distinctions based on mental retardation.
       This court‘s equal protection jurisprudence has generally applied a two-
tiered approach that subjects challenged classifications either to strict scrutiny or
to rational basis review. Although Cleburne applied neither strict scrutiny nor
conventional rational basis review, I do not see much to be gained by multiplying

                                          44
labels to further differentiate among tiers of review. (Cf. Cleburne, supra, 473
U.S. at p. 451 (conc. opn. of Stevens, J.) [―[O]ur cases reflect a continuum of
judgmental responses to differing classifications which have been explained in
opinions by terms ranging from ‗strict scrutiny‘ at one extreme to ‗rational basis‘
at the other. I have never been persuaded that these so-called ‗standards‘
adequately explain the decisional process.‖].) The essence of rational basis review
is that a legislative classification ―must be rationally related to a legitimate
governmental purpose.‖ (Id. at p. 446 (maj. opn.).) Like all doctrinal tests, this
general requirement acquires greater specificity through application, and
Cleburne, in my view, elucidates the proper application of rational basis review
where a statutory classification is based on mental retardation as opposed to
distinctions among cable television facilities (Beach Communications, supra, 508
U.S. 307), eye care professionals (Lee Optical, supra, 348 U.S. at p. 489), or tort
victims (American Bank, supra, 36 Cal.3d at pp. 373–374).
       In reaching this conclusion, I am mindful of Cleburne‘s observation that
policies ―singling out the retarded for special treatment‖ are ―in the vast majority
of situations . . . not only legitimate but also desirable.‖ (Cleburne, supra, 473
U.S. at p. 444.) Unlike strict or intermediate scrutiny, the rational basis test
recognizes that ―[e]specially given the wide variation in the abilities and needs of
the retarded themselves, governmental bodies must have a certain amount of
flexibility and freedom from judicial oversight in shaping and limiting their
remedial efforts.‖ (Id. at p. 445.) Nevertheless, it is appropriate that Cleburne‘s
skepticism toward unsubstantiated generalizations and legislative inconsistency
applies equally to ―remedial‖ laws that purport to benefit individuals with
intellectual disabilities. For if there is any lesson to be learned from this area of
history, it is that the injurious character of many benignly motivated policies
became apparent only after objective inquiry or scientific advancement revealed

                                           45
their unfounded premises for what they were. The officials who approved the
sterilization of Carrie Buck, for example, seemed confident that they were doing
so for her own good. (Ante, at p. 10.) It is possible that some policies we today
regard as remedial will, upon finer inspection, come to be regarded tomorrow as
unwarranted paternalism.
       Although the court says Cleburne is ―outmoded in this context‖ (maj. opn.,
ante, at p. 35, fn. 21), other courts have continued to rely on Cleburne for its
approach to rational basis review even after Heller. (See, e.g., Massachusetts v.
U.S. Dept. of Health & Human Services (1st Cir. 2012) 682 F.3d 1, 10–11 [citing
Cleburne to show that ―equal protection assessments are sensitive to the
circumstances of the case and not dependent entirely on abstract categorizations‖];
Vision Mining, Inc. v. Gardner (Ky. 2011) 364 S.W.3d 455, 466–469 [citing
Cleburne in concluding that ―the rational basis standard, while deferential, is
certainly not demure‖]; Ferdon ex rel. Petrucelli v. Wis. Patients Comp. Fund
(Wis. 2005) 701 N.W.2d 440, 461–462 [citing Cleburne in explaining that ―[t]he
rational basis test is ‗not a toothless one‘ ‖].) In any event, even if Heller has
―superseded‖ Cleburne (maj. opn., ante, at p. 35, fn. 21), the court provides no real
analysis as to why Heller and not Cleburne should frame the standard of review
that applies to discrimination on the basis of mental retardation under state equal
protection principles — even though this issue has not previously been settled by
our court, even though article I, section 24 of the California Constitution says
that ―[r]ights guaranteed by this Constitution are not dependent on those
guaranteed by the United States Constitution,‖ even though we have adopted equal
protection standards that are more stringent than federal standards in other areas,
and even though the history of discrimination on the basis of mental retardation
clearly distinguishes this kind of discrimination from ordinary economic and
social legislation. Far from ―crafting [my] own constitutional theory of equal

                                          46
protection‖ (maj. opn., ante, at p. 35, fn. 21), I have provided an explicit and
reasoned explanation as to why the Cleburne approach is appropriate here, using
the same type of analysis that our court has used in the past when confronted with
similarly novel equal protection issues. By contrast, the court simply does not
engage this issue apart from asserting that ―we have correctly applied [Heller]‖
and that Cleburne‘s approach is ―unduly strict‖ and thus improper here. (Maj.
opn., ante, at p. 35, fn. 21.) We do not ordinarily decide important questions of
constitutional law in such a conclusory manner.
                                          E.
       Applying Cleburne‘s principles to the instant case, I conclude that the
record reveals no rational basis for requiring courts to provide a jury trial
advisement to persons facing commitment under section 5300 but not to persons
facing commitment under section 6500. Cleburne‘s analysis forecloses reliance
on a ―one step at a time‖ rationale. If the difference in commitment procedure is
to be sustained, it must be on the basis of a valid generalization about each group‘s
ability to understand the advisement. But there are no legislative findings or other
facts on record to support such a generalization.
       There is nothing irrational about a conjecture that the proportion of
mentally disordered persons facing a 180-day commitment under the LPS Act who
can understand the advisement is greater than the comparable proportion among
persons alleged to be mentally retarded under section 6500. But it is a mere
conjecture nonetheless. As previously discussed (ante, at pp. 21–22), a person
facing a 180-day commitment under section 5300 is a person actually (not
allegedly) suffering from a mental disorder who has already undergone a 72-hour
evaluation and treatment period (§ 5150) followed by a 14-day ―intensive
treatment‖ period (§ 5250) and possibly an ―additional‖ 30-day period of
―intensive treatment‖ (§ 5270.15). Despite such treatment, such a person is

                                          47
alleged to ―present[], as a result of mental disorder or mental defect, a
demonstrated danger of inflicting substantial physical harm upon others.‖
(§ 5300.) It is a fair inference that many such individuals are so mentally
disordered that, even with treatment, they cannot understand a jury trial
advisement. Meanwhile, given the range of cognitive abilities among persons
diagnosed as mentally retarded and among persons merely ―alleged‖ to be
mentally retarded under section 6500, it is a fair inference that many such
individuals are, with or without treatment, capable of understanding a jury trial
advisement. (Ante, at p. 22.) The record before us provides no factual basis to
determine whether the two groups really differ with respect to ability to
understand an advisement and, if so, whether the difference is large or small.
       Moreover, although the Legislature could have believed the benefits of an
advisement requirement to be worth the administrative burden in section 5300
proceedings but not in section 6500 proceedings, there are no facts or findings in
the record to support the rationality of such a legislative judgment. Of course,
every procedural requirement presents an incremental burden. But it is not
obvious how burdensome an advisement really is, especially when considered
apart from any right to personal waiver. It is possible that a court reporter may be
necessary to record the advisement. But there is no need for a competency hearing
with respect to an advisement alone. Although some individuals will not
understand an advisement, others will. If the efficiency of an advisement
requirement were expressed as a ratio of its benefits to its burdens, the ratio would
remain quite large even if the magnitude of the benefits varied from group to
group, so long as the magnitude of the burdens was much smaller. The lack of any
record indication of how burdensome it is to provide a jury trial advisement makes
it difficult to conclude that the statutory distinction at issue reflects considerations



                                           48
of administrative efficiency that merely ―burden the retarded in what is essentially
an incidental manner‖ (Cleburne, supra, 473 U.S. at p. 446).
       Importantly, my analysis does not suggest that the Legislature is foreclosed
from adopting different commitment procedures (short of procedures implicating a
fundamental right) based on generalizations about persons who are mentally
disordered and persons who are alleged to be mentally retarded. The problem in
this case is that such generalizations lack any factual basis in the record that would
dispel an inference of irrational prejudice, and thus the statutory distinction is
invalid as presently drawn. However, the Legislature would remain free, in my
view, to reenact the distinction if it were to articulate and provide some factual
support for its classificatory rationale. (Cf. Califano v. Goldfarb (1977) 430 U.S.
199, 221–222 & 223, fn. 9 (conc. opn. of Stevens, J.) [finding Social Security
survivors‘ benefit statute invalid because Congress ―simply assumed that all
widows [but not widowers] should be regarded as ‗dependents,‘ ‖ but leaving open
the possibility that ―an actual, considered legislative choice would be sufficient to
allow this statute to be upheld‖].) Legislative inquiry might reveal that most
persons facing commitment under section 6500 are more than mildly retarded, that
most persons facing commitment under section 5300 are not cognitively impaired,
or that an advisement requirement presents administrative burdens that are not
immediately obvious. When the Legislature has provided actual reasons and made
findings to support a classification on the basis of mental retardation, the resulting
statute is entitled to a high degree of deference. The Legislature may properly
consider the efficiency of procedures designed to commit persons with mental
disabilities who are dangerous to themselves or others, and a reviewing court
should refrain from second-guessing the Legislature‘s actual, factually supported
judgment that a particular classification is rationally related to a legitimate
articulated purpose.

                                          49
       Finally, the term ―irrational prejudice‖ (Cleburne, supra, 473 U.S. at
p. 450) merits a brief comment. When it is said that a hypothesized yet
unsubstantiated generalization is not sufficient to negate an inference of irrational
prejudice, I do not think a necessary or even proper implication is that the policy
in question was born of subjective animus. I would not suggest, for example, that
the legislators who supported the enactment of section 6500 (or the citizens who
elected those legislators) were motivated by ill will toward persons alleged to be
mentally retarded. Instead, an irrational prejudice may, and most often does, arise
from good-faith adherence to unexamined assumptions that reflect historic or
prevailing attitudes. In recent decades, many legislative developments concerning
involuntary commitment have perhaps reflected a widespread belief that because
mental illness is less permanent and more treatable than mental retardation, people
who are mentally ill are ―closer to normal‖ than people who are mentally retarded.
Whatever merit such a totalizing assumption may have as a general matter, it
cannot alone — in the absence of relevant supporting facts — justify a particular
legislative classification without taking on the character of an irrational prejudice
in that specific context.
                                          F.
       While holding that persons facing commitment under section 6500 have a
right to a jury trial, today‘s opinion characterizes the advisement that Barrett seeks
as an ―ancillary,‖ ―collateral,‖ or ―additional adjunct‖ procedure. (Maj. opn., ante,
at pp. 19, 24, 15.) Potential committees have a right to counsel (§ 6500), and the
court says counsel ―is presumed competent and informed as to applicable
constitutional and statutory law‖ and ―can be expected, where necessary or
advisable, to consult with the client about jury trial concerns.‖ (Maj. opn., ante, at
p. 26.) This may be a pertinent response to Barrett‘s due process claim. But it is
no answer to her equal protection claim because one could just as easily say that

                                          50
the right to counsel adequately protects the jury trial right of individuals facing
commitment under section 5300. Indeed, section 5302 requires a jury trial
advisement even as it not only provides for a right to counsel but also expressly
instructs that ―[t]he attorney shall advise the person of his rights in relation to the
proceeding . . . .‖
       It may be true that counsel generally knows best and that the option to
demand or waive a jury trial will typically result in the same decision whether an
advisement is given or not. But the importance of an advisement goes beyond its
instrumental value. Whether or not an advisement alters the ultimate choice to
proceed with or without a jury, it expresses the legal system‘s respect for the
individual as a participant in, and not a mere object of, the commitment
proceedings. For those who are capable of understanding it, an advisement by the
court recognizes their dignity as well as their ability to comprehend and possibly
participate in an important aspect of a proceeding that may adversely and
irreversibly shape the rest of their lives. Having extended this recognition to some
persons with mental disabilities, the Legislature must have an actual, considered
rationale for not extending it to others.
       In sum, the instant case implicates two sensitivities that run deep in the
history of society‘s treatment of persons with intellectual disabilities. The first is
an unfounded assumption of incapacity. As previously noted (ante, at p. 22), the
section 6500 scheme does not assume that all individuals facing commitment lack
the ability to comprehend an advisement. Nor should it assume, without
supporting facts, that proportionally more persons lack such ability in proceedings
under section 6500 than in proceedings under section 5300.
       Second, the assumption of incapacity occurs in the context of a proceeding
that may result in precisely the sort of isolation and segregation that reinforces and
perpetuates the assumption of incapacity. As Congress recognized among its

                                            51
findings when it passed the ADA, ―historically, society has tended to isolate and
segregate individuals with disabilities, and, despite some improvements, such
forms of discrimination against individuals with disabilities continue to be serious
and pervasive social problem . . . .‖ (42 U.S.C. § 12101(a)(2).)
       It is true that an order of commitment under section 6500 ―expire[s]
automatically one year after‖ it is made. (§ 6500.) But a person may be
recommitted year after year, without limit, through procedures that are ―the same
as with an initial petition for commitment.‖ (Ibid.) Where a trial court finds an
individual to be mentally retarded — a condition that ―never recede[s]‖ (maj. opn.,
ante, at p. 24) — and where the court also finds, as it did here, that ―the danger she
posed to herself and others was based upon, and caused by, her mental
retardation‖ (id. at p. 7), the initial commitment proceeding and the findings made
therein potentially lay the groundwork for lengthy, possibly even lifetime
confinement. (See Melton, supra, at p. 334 [―the relatively stable nature of their
condition‖ means hospitalization of people with mental retardation ―could amount
to confinement for life‖].) Before being consigned to such a fate, a person alleged
to be mentally retarded is entitled to the same advisement, and the same respect
and recognition, that the Legislature has seen fit to grant other persons with mental
disabilities who are facing prolonged commitment. That such respect and
recognition may be ―largely symbolic‖ (maj. opn., ante, at p. 35, fn. 21) does not
diminish the importance of Barrett‘s claim, for it is evident from many historic
claims of equality vindicated by our court and others that the principle of equal
protection ―often bears its fruit in those regions where symbol becomes
substance.‖ (Karst, Equal Citizenship Under the Fourteenth Amendment (1977)
91 Harv. L.Rev. 1, 6.)




                                         52
                                          VI.
       The Court of Appeal found that even if Barrett was entitled to advisement
and personal waiver of her jury trial right, the error was harmless in light of the
evidence of her mental retardation and dangerousness: ―There was no dispute that
Barrett is a person with mental retardation. And, given her recent history, as
documented in the reports attached to the petition for commitment and the
testimony of Robert Thomas, there was substantial evidence that she is a danger to
herself or others, even though there was no evidence that anyone, as yet, had
suffered actual and serious physical injury as a result of her behavior. She
regularly assaulted others and engaged in self-mutilation and suicidal ideation.
And though Barrett disputes it, there was undisputed evidence, as the trial court
found, that her mental retardation is a substantial factor in her inability to control
her dangerous behavior.‖
       I agree with the Court of Appeal that the failure to advise was not structural
error requiring automatic reversal. The Court of Appeal applied the harmless error
standard for federal constitutional error (Chapman v. California (1967) 386 U.S.
18, 24), but ―application of a state harmless-error rule is, of course, a state
question where it involves only errors of state procedure or state law‖ (id. at
p. 21). Here, even if the Legislature violated the federal as well as state equal
protection guarantee by failing to afford Barrett the same right to advisement
afforded under section 5302, the error in Barrett‘s trial was the denial of a state
statutory right. If the Legislature were to correct the constitutional violation
tomorrow by amending section 6500, any subsequent advisement error would be
subject to state harmless error analysis. The same is true today. Applying People
v. Watson (1956) 46 Cal.2d 818, 836-837, I would conclude on the basis of the
evidence that there was no reasonable probability Barrett would have achieved a
more favorable outcome had she been tried by a jury.

                                          53
       Accordingly, I join the court‘s disposition affirming the judgment of the
Court of Appeal. But I would hold that Barrett is entitled to advisement of her
right to a jury trial in any future proceeding under section 6500.


                                                  LIU, J.




                                         54
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Barrett
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 181 Cal.App.4th 196
Rehearing Granted

__________________________________________________________________________________

Opinion No. S180612
Date Filed: July 30, 2012
__________________________________________________________________________________

Court: Superior
County: Santa Clara
Judge: Mary Ann Grilli

__________________________________________________________________________________

Counsel:

Jean Matulis, under appointment by the Supreme Court, for Defendant and Appellant.

Deborah A. Dorfman and Sujatha Jagadeesh Branch for Disability Rights California, ARC of California,
Capitol People First, Professor Robert Jacobs, Professor Michael Perlin and Olivia Raynor as Amici Curiae
on behalf of Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan, Dorian Jung, Seth
K. Schalit and Lisa H. Ashley Ott, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Jean Matulis
P.O. Box 1237
1241 Knollwood Drive, #119
Cambria, CA 93428
(805) 927-1990

Lisa H. Ashley Ott
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5978
