Conservatorship of Judith Simon

Case Number

20PR00095

Case Type

Hearing Date / Time

Wed, 04/10/2024 - 08:30

Nature of Proceedings

Motion to Be Relieved as Counsel

Tentative Ruling

Probate Notes:

Appearances required.  After supplemental briefing, the following is noted for the Court at the hearing:

Denial Recommended.  The Public Defender seeks to withdraw from representation of the conservatee, citing Government Code section 27706, and Brown v. Superior Court (1981) 119 Cal.App.3d 189, for the proposition that the Public Defender is not required to represent a conservatee who appears “financially able to employ counsel” from the documents on file in the conservatorship proceeding.  The Public Defender is incorrect, and should be denied withdrawal in this case.

Although Government Code section 27706(d) contains an express qualifier that the Public Defender “shall represent any person who is not financially able to employ counsel” when ordered to do so by this Court, that section does not contain any authority governing (and especially prohibiting) the Public Defender from being appointed by this Court when a person/conservatee does have the financial ability to employ private counsel. Public Defender in this case presumed the financial ability determination is both its own to make, and inseparably connected with appointment.  Both presumptions are false.

Public Defender’s analysis is fundamentally flawed by a lack lack of citation to the well-settled rules of statutory interpretation, which are as follows:

“The primary purpose of statutory interpretation is to determine the intent of the Legislature “ 'so as to effectuate the purpose of the law.' ” (People v. Cruz (1996) 13 Cal.4th 764, 774-775; Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386.

A court begins the interpretation of a statute by examining the language of the statute, giving the words their ordinary meaning. (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 378.) Judges should not disregard express statutory language, or add language that is not there. (Yao v. Sup. Ct. (2002) 104 Cal. App. 4th 327, 333.)  Public Defender’s problem begins here.  The Public Defender adds words to Government Code section 27706(d) that the legislature did not.  According to the Public Defender, the statute reads that the Public Defender “shall represent any person who is not financially able to employ counsel” … and shall represent no other.  That language does not exist. “When statutory language is ... clear and unambiguous there is no need for construction, and the courts should not indulge in it.” (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198.)

Moving on, the words of the statute must be considered in context, keeping in mind the purpose of the statute. (Nahrstedt, supra, 8 Cal.4th at pp. 378-379.) “'Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.]' ” (DuBois v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 382, 388.)

Public Defender’s untenable position is apparent in its further brief, where Public Defender admits Probate Code 1472 allows the Public Defender to get paid by a conservatee with the means to do so, while Public Defender talks out of the other side of its proverbial mouth by claiming it cannot be paid.

It is indisputable that Probate Code section 1471 gives this Court authority to appoint the Public Defender in cases where the conservatee appears to have the resources to finance private counsel, and that section is not qualified or hindered by the financial ability limitation in Government Code section 27706.  In fact,  Probate Code section 1472 allows the Public Defender to be paid by a conservatee with means, the same as if a private counsel was representing the conservatee.  This raises the obvious question of why such authority would exist if the Public Defender could not be appointed in the first place under an adequate financial means scenario. 

Those sections of the Probate and Government Codes, nor any other authority cited by the Public Defender, give the Public Defender any right to refuse an appointment by this Court, when this Court appoints the Public Defender pursuant to section 1471. 

Even if Government Code section 27706(d) expressly prohibited the Public Defender from being paid by a represented party, that section is not only a general statute that must yield to a more specifically worded statute, but was enacted before the recent amendment to Probate Code section 1471, and the Legislature did not choose to amend the language in 1472 at that time, or since.  Legislation that is more specific and recent than other provisions will govern, where the same subject matter is involved, and the acts are irreconcilable (Riverside Sheriff's Ass'n v. County of Riverside (2007) 152 Cal.App.4th 414, 420), and "specific statutory provisions relating to a particular subject normally control as against more general provisions concerning the same subject" (In re Michael G. (1988) 44 Cal. 3d 283, 293).

Public Defender’s citation to Brown v. Superior Court (1981) 119 Cal.App.3d 189, is not persuasive.  In that proceeding, the Public Guardian had not been appointed to represent a conservatee in a proceeding pursuant to Probate Code section 1471, but had been appointed to represent the conservatee in what appears to have been a civil (or quasi civil) action to “recovery personal property.”  The Court in Brown clearly stated in its holding that:

Section 1471, subdivision (a) does not encompass a proceeding by a conservatee to recover personal property. The proceeding with which we are concerned is not a proceeding pursuant to section 1471, subdivision (a), nor is it a proceeding pursuant to subdivisions (b) or (c).

(Brown, supra, 119 Cal.App.3d, at p. 191 [emphasis added].)

Since the Public Defender was appointed in this case pursuant to Probate Code section 1471(a)(1), Brown is completely inapplicable, and citation to that case by the Public Defender as carte blanche authority to refuse to represent non-indigent persons in conservatorship cases is concerning, at the very least, disingenuous at most.  The court should dismiss that argument out of hand, and admonish counsel to be more careful in the future with their citations.

Secondly problematic and unpersuasive is the fact that the Public Defender is not the finder of fact on the “not financially able to employ counsel” standard in Government Code section 27706, because this Court is the final finder of that fact. (Gov. Code, §27707 [“The court in which the proceeding is pending may make the final determination in each case as to whether a defendant or person described in Section 27706 is financially able to employ counsel and qualifies for the services of the public defender.”].)  This was, ironically, confirmed in Conservatorship of Berry (1989) 210 Cal.App.3d 706, cited by the Public Defender here.  In that case, the Court held “enactment of section 27707 thus provides for the judicial review of the public defender's determination of indigence.” (id. at p. 715.)  This argument was not addressed at all in Public Defender’s response.

In example, Probate Code section 1470(c)(3), which demands “The Judicial Council shall adopt guidelines to assist in determining financial eligibility for county payment of counsel appointed by the court pursuant to this chapter.” (Emphasis added.) Those guidelines were developed and placed in Appendix E to the California Rules of Court, which state:

If the court finds that the responsible person, including a responsible person described in paragraph 4, can pay all or a portion of the cost of appointed counsel, can pay those costs in installments, or can pay those costs under some other equitable arrangement without using money that normally would pay for the common necessaries of life for the responsible person and the responsible person’s family, the court may order the responsible person to pay appointed counsel directly, reimburse the county for the costs of appointed counsel paid by the county, or both, in part or on such other terms as the court determines are fair and reasonable under the circumstances.

(CRC, Appendix E, ¶5 [emphasis added].)

Public Defender’s citation to Conservatorship of Berry (1989) 210 Cal.App.3d 706 is, thus, also misleading and inapplicable here. 

Additionally, the Court in Berry firmly held “there is no basis in the Probate Code for an award of fees to the public defender when the public defender has been appointed to represent a conservatee or proposed conservatee in a proceeding not specified in Probate Code sections 1471, 1852 or 3205.” (Id. at p. 724 [emphasis added].)  The Court in that case made this emphasis, because the appointment in one of the four consolidated cases on appeal was under the discretionary provisions of 1470, not the mandatory provisions of 1471; and the rest were appointments under the LPS statutory scheme not applicable here.  Making citation to Berry equally inapplicable to both arguments above.

Therefore, the Court should confidently deny the Public Defender’s request to withdraw, and encourage the Public Defender to petition for its fees in the manner allowed under the Probate Code, because the Public Defender is entitled to be compensated for its services pursuant to Probate Code section 1472, giving it an avenue to provide itself apparently much needed funding. (“Public defenders slam Newsom for slashing budget, prioritizing theft prosecution.” https://www.courthousenews.com/public-defenders-slam-newsom-for-slashin….)