Matter of Conservatorship of Goodman

MacGUIGAN, Judge,

dissenting:

Being mindful of the long-standing admonition for courts to refrain from passing on the constitutionality of a statute unless absolutely necessary, Smith v. Westinghouse Elec. Corp., 732 P.2d 466 (Okl.1987), I must respectfully dissent from the majority opinion’s holding that our statute allowing for the appointment of a conservator is unconstitutional.

The authority for appointment of a conservator in this jurisdiction is strictly statutory. 58 O.S.1981 § 890.1 enumerates the requirements for notice and hearing of petition for appointment of conservator, and § 890.2 provides that, after such hearing, if *1014 it appears that the proposed conservatee is, by reason of advanced age or physical disability, unable to manage his property, the trial court must appoint a conservator of the estate.

The majority, in its opinion, presumes the appointment of such conservator pursuant to Title 58 O.S.1981 §§ 890.1 and 890.2 encompasses an automatic deprivation of enumerated constitutional rights. Specifically, the majority opines that the appointment of a conservator without evidence of mental incompetence is unconstitutional as an unwarranted abridgment of the right to own and manage property and the right to life and liberty. Oklahoma Constitution, Article 2 § 2, and Section 33; United States Constitution, Amendments 5, 10, and 14. However, this argument was implicitly addressed in In re Conservatorship of Spindle, 733 P.2d 388 (Okl.1986), in which the Oklahoma Supreme Court dealt with the right of a ward, or conservatee, to make a gift. As that Court stated:

Reading these provisions as a whole it is clearly intended that a way be provided to facilitate the handling of the property of a ward when the ward is precluded from doing so by physical disabilities ... [W]e do not conclude that the Legislature intended to prohibit the ward’s participation or actions in matters affecting [his] property ... [T]he legislation is designed to compensate for the ward’s physical condition by authorizing another to deal with the ward’s estate, and thus to assist the ward. 733 P.2d at 391, 392 .

Thus, far from imposing constitutionally impermissible restrictions on a conserva-tee’s right to “life, liberty, and property”, our Supreme Court has concluded that the intention of the conservatorship statutes is to facilitate the handling of a conservatee’s property for the benefit of that conserva-tee, without prohibiting the conservatee’s participation in decisions affecting his or her estate.

The thrust of the majority’s opinion appears to center on the possible consequences of, as aptly characterized by the majority, the “family squabble” over the instant conservatee’s property or lack thereof. Although this raises an uneasy spector of the possible misapplication of the conservatorship statutes, because I find the statute in question not facially unconstitutional, I cannot agree to an imposition of such unconstitutionality on the basis of some future disagreement between conservator and conservatee over the disposition of the latter’s property. We have long been directed to not anticipate constitutional questions, Todd v. Oklahoma State Democratic Central Committee, 361 F.Supp. 491 (W.D.Okl.1973), nor to assume a violation of constitutional rights; Sledge v. Carlson, 405 F.Supp. 1315 (W.D.Okl.1975).

In the case of In re Mayes-Rogers Counties Conservancy Dist. Formation, 386 P.2d 150 (Okl.1963), our Supreme Court refused to consider the contentions of protestants that certain statutes dealing with the organization of conservancy districts were unconstitutional, where the judgment in the proceeding under those statutes simply ordered formation of conservancy districts and imposed no liability on the protestants, no liens on their property, and assessed no taxes, no harm was sustained by protestants, and no injury was threatened.

Likewise, in the instant case, because our Supreme Court has read our conservator-ship statutes as a whole as not prohibiting the conservatee’s participation or action in matters affecting his estate, I feel constrained to further address constitutionally impermissible action which has not been sustained, has not been threatened, and may, in fact, never materialize, as was the case in the Mayes-Rogers Counties Conservancy District Formation case. Assuming the facial constitutionality of the conservatorship statutes, the unconstitutionality of such statutes may not be urged by resort to hypothetical applications. Kimery v. Public Service Co. of Oklahoma, 622 P.2d 1066 (Okl.1980).

For these reasons, I would affirm the trial court’s appointment of a conservator in this matter.