Petition for Writ of Certiorari — Nancy Delaney, Petitioner v. San Andreas Regional Center, et al.

No.

IN THE SUPREME COURT OF THE UNITED STATES

NANCY DELANEY, as Guardian ad Litem for NANCY GOLIN,

Petitioner,

SAN ANDREAS REGIONAL CENTER, SANTI ROGERS, MIMI

KINDERLEHRER, TUCKER LISKE, EDNA MANTILLAS DBA EMBEE MANOR,

STANFORD HOSPITAL AND CLINICS, AND JAMIE BUCKMASTER,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL, FIRST DISTRICT

PETITION FOR WRIT OF CERTIORARI

Walter K. Pyle

2039 Shattuck Avenue, Suite 202

Berkeley, CA 94704-1116

(510) 849-4424

walt@wfkplaw.com

Attorney for Petitioner

December, 2019

THE QUESTIONS PRESENTED

. Whether persons who are not government officials and not performing

governmental duties can claim qualified immunity from suit in a civil rights

action pursuant to 42 U.S.C. § 1983.

. Whether it is harmless error to submit to the jury the purely legal issue

whether a defendant is entitled to qualified immunity.

. Whether it is harmless error to submit to the jury for determination the legal

standard whether the defendants’ conduct, in light of U.S. Supreme Court

precedent and historical understanding of the Constitution, meets the

“shocks the conscience” standard for constitutional violations.

. Whether, if the defendants’ conduct did violate the Constitution, a

governmental official in defendants’ position could nevertheless reasonably

believed their conduct was lawful.

. Whether Petitioner, a 31-year old autistic, mentally retarded woman living

with her parents, was entitled to a directed verdict when the evidence showed

that respondents acted jointly to involuntarily confine her at a residential care

facility for 11 months, her whereabouts kept secret from all but those working

with respondents, without due process, or indeed, any process of law at all,

or does the defendantsU professed desire to keep Petitioner UsafeU absolve

them from liability?

ii

THE PARTIES

Plaintiff Nancy Golin was a 31-year old developmentally disabled adult

at the time her claim arose. She suffered from mental retardation, epilepsy, and

autism. She was almost mute and had the mental capacity of a 2- or 3-year old.

Plaintiffs Jeffrey Golin and Elsie Golin are Nancy’s parents.

Defendant San Andreas Regional Center (“SARC”) is a not-for-profit

corporation, which, like all regional centers, provides services to persons with

developmental disabilities under contract with the State Department of

Developmental Services.

Defendant Santi Rogers was Executive Director of SARC.

Defendant Miriam “Mimi” Kinderlehrer was the Director of Consumer

Affairs for San Andreas Regional Center. She reported to Santi Rogers.

Defendant Tucker Liske was the District Manager for San Andreas

Regional Center. He supervised approximately a dozen service coordinators.

Defendant Jamie Buckmaster was the Social Services Program Manager

of Santa Clara County Adult Protection Services (APS), a county agency that is

mandated by the California Welfare and Institutions Code to receive and

investigate reports of dependent adult abuse, neglect and exploitation. See Calif.

Welfare & Institutions Code §§ 15751, 15766

Defendant Stanford Hospital and Clinics is a private hospital in Palo

Alto, California.

Defendant Edna Mantillas d/b/a Embee Manor was the administrator of

Embee Manor, a 6-bed residential care facility where Petitioner was sent.

The City of Palo Alto and Detective Lori Kratzer were originally named

as defendants, but were dismissed on their motions for summary judgment.

iii

DIRECTLY RELATED PROCEEDINGS

Golin v. Allenby, No. 06AS01743, California Superior Court of Sacramento

County, venue transfer to Santa Clara County Superior Court entered, No.

C054107, California Court of Appeal, Third District, judgment entered

November 20, 2006; California Supreme Court No. 148450, judgment entered

January 3, 2007; U.S. Supreme Court No. 06-1562, Petition for Writ of Certiorari,

denied October 1, 2007

Golin v. Allenby, 2007-1-CV-082823, California Superior Court of Santa Clara

County, judgment entered December 11, 2007; California Court of Appeal, Sixth

District, No. H032619 judgment entered November 30, 2010, 190 Cal. App. 4th

61, reversed and remanded, venue transferred to California Superior Court of

San Mateo County No. 507159, transfer entered July 5, 2011.

Golin v. City of Palo Alto, California Superior Court of San Mateo County, No.

CIV 507159. California Court of Appeal, First District, No. A144680, judgment

entered December 9, 2016; No. $239624, California Supreme Court, judgment

entered February 22, 2017.

Kratzer v. Superior Court, California Court of Appeal, First District, No.

A143140, judgment entered January 14, 2015, San Mateo Superior Court No. CIV

507159

Buckmaster v. Superior Court, California District Court of Appeal, First District,

No. A143210, judgment entered December 30, 2014. San Mateo Superior Court

No. CIV 507159

Mantillas v. Superior Court, California District Court of Appeal, First District,

No. A143279, DCA judgment entered December 30, 2014, San Mateo Superior

Court No. CIV 507159.

San Andreas Regional Center v. Superior Court, California District Court of

Appeal, First District, No. A143810, judgment entered February 10, 2015.

iv

TABLE OF CONTENTS

THE QUESTION PRESENTED W... ci cee cc ce cs cssssesesnesessescssessesseseeseecsssensasenesreneeses

THE PARTIES oo. cccceccsssesesessescssssessessessesescsscsssessnessesseseecsassessesesseecsssensaseneaneneenes

OPINIONS BELOW... ccccecscssssesssscsssscssesesseseseesessensasessscessseeesssecesesesseseaseneasesscenesee

JURISDICTION occ cccceccscssesseessescsscessssssessesesseessscesasssessesesseecsssaseseseeseecescessaeneane

CONSTITUTIONAL PROVISION INVOLVED... ecccceesenecessenssensseneseeeaee

STATEMENT OF THE CASE wu.ccccceesscsessescsssssssessessesessescssssessesesseecsscensasenesseneeses

STATEMENT OF THE CASE wu.ccccceesscsessescsssssssessessesessescssssessesesseecsscensasenesseneeses

1. This Court Has Consistently Said the Interests of Justice Would

Not Be Served by Extending Qualified Immunity to Private

Individuals and Entities. The California Court’s Ruling Is

Contrary to the Precedents of This Court ....cccceccsessessessesssssesesesssesnense

2. The Error of Submitting Two Critical Questions of Law to the Jury

to Determine Was Not Harimless........ccccccceccssssesssssessecssssessesssessesessenseeenes

3. No Reasonable Person Could Believe It Was Lawful to Seize An

Autistic, Mentally Retarded Woman and Involuntarily Confine

Her at a Secret Location for Months Without a Hearing of Any

A. Petitioner’s Fourth Amendment Claim: A Warrantless

Seizure of the Person Is Per Se Unreasonable.........c.cccccceccseesetseseeteesees

B. Petitioner’s Fourteenth Amendment Claim: Involuntary

Commitment to a Residential Care Facility Is a Deprivation of

Liberty That Requires Due Process Of LAW .....cccesussesssessesssssssseseseees

C. Petitioners’ Rights to Family Association: The Right to Family

Association Is Protected Against Arbitrary Governmental

Interference by the Due Process Clause... siccececussessessesesssssseseseses

5. The Split Between State and Federal Decisions on Qualified

Immunity Has Serious, Widespread Ramifications for the

Disabled. .....ccccceccsceseessseessiessssessessssecssessnssssseesnussssessusessseessusssessuussseessesaseesseessees

20

24

CONCLUSION. essccessssesssseessseessssesssssessssesssueesssnessusessuseessneessuseesuseesunsesuuseessseessseessnscsssesssneessses 26

APPENDIX

Appendix 1—Decision of the California Court of Appeal... App. 1

Appendix 2—Order of California Court of Appeal Denying Rehearing..... App. 43

Appendix 3—Order of California Supreme Court Denying Review............. App. 44

vi

TABLE OF AUTHORITIES CITED

State Cases

Martinez v. County of Los Angeles, 47 Cal.App.4th 33411996) ...ccceceenesneees 9

Newing v. Cheathant, 15 Cal.3d 351 (1975) ...cccccessesesssessesssssssessesessessseseees 15

People v. Barrett, 54 Cal.4th 1081 (2012)... ccceceseessesssesssesesnssssesssesseessseseeses 16

People v. Takencareof, 119 Cal. App.3d 492 (1981) w.cesccccecsecesesssesssesseseseeses 15

Federal Cases

Addington v. Texas, 441 U.S. 418 (1979) ..ceesessesseessssesesesesesesssnees 15, 17, 18

Anderson v. Liberty Lobby, Inc., 447 U.S. 242 (1986) ...ccccceecseeesssesssesssessseseeses 16

Arizona v. Fulminante, 499 U.S. 279 (1991) vccccccccccccsescscsesescseseseseseseseseeesescstsees 13

Armstrong v. Squadrito, 152 F.3d 564 (7th Cir. 1998) ...cceeceeesssesesesssesseeseeses 11

Bias v. Moynihan, 508 F.3d 1212 (Oth Cir., 2007). ...cccscsessessecssesesessseseneseseesees 17

Board of Directors v. Rotary Club, 481 U.S. 537 (1987) w.cesescscsessesesssesenesesesses 20

Brendlin v. California, 551 U.S. 249 (2007)....cceccceccseessesseesesessesessesseseseesessenes 15

California v. Hodart D., 499 U.S. 621 (1991) .eccccsseesseseseessessesnsssessneseeesees 15

Carter v. Kentucky, 450 U.S. 288 (1981).....cccccsnsesseesseseeessssesnssseeseseesesssesseseneenes 12

County of Sacramento v. Lewis, 523 US 833 (1998)

Dennis v. Sparks, 449 U.S. 24 (1980) ..scecessesssesssesssesnsssssssesssesseesssssnsssnesesesseeseeseeseees

Filarsky v. Delia, 566 U.S. 377 (2012) .esccccessessesssesseesesssnssssesseessessnesnsenesesessesnes 8,9

Gomez v. Toledo, 446 U.S. 635, 640 (1980)... cc ccccccseseescsseseescsseseseceeeseeceeesesseeeeseses 9

Halvorsen v. Baird, 146 F.3d 680 (9th Cir. 1998) wc ccccceccstesescesesesescsesescsesees 19

Humphrey v Cady, 405 US 504 (1972)....ccccscccsscsessesesssnesssessessseesssessesesneseessesnees 17

Hunter v. Bryant, 502 U.S, 224 (1991)... ccececeeeceseeesesneeeseeeessenesssiesssieessseeesseeses 11

Jackson v. Denno, 378 U.S. 368 (1964)... ceecceccsssseseeceseseseesesenesteseseansenennenenees 13, 14

Jackson v. Indiana, 406 U.S. 715 (1972) oe ceecceccsessesesceseseseeceseseseesesesnesesensaneeenennenes 19

Kaupp v. Texas, 538 U.S. 1 (2008) eececccceseceseeseeseesesseesieseesseseeseeseeseeseeseesseseesnesses 15

Table of Authorities (Cont.)

Lassiter v. Department of Social Services, 452 U.S. 18 (1981)... 20

Lee v. City of Los Angeles, 250 F.3d 668 (2000) .....cscccscecessesesssssessesseseesseneees 21

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) weccccsecsecsesesssssssessseseeseeseseneees 22

MeNeil v. Director, Patuxent Institution, 407 U.S. 245 (1972) ...ccccccceeteeceeeee 19

Minnesota v. Dickerson, 508 U.S. 366 (1993) ...ccccccccsccsesescesescsesescseseseseseseseecstsees 17

Moore v. East Cleveland, 431 U.S. 494 (1977) ...ecccccccccccccesessceseseesceseseesseseeseaee 20, 21

O’Connor v. Donaldson, 422 U.S. 563 (1975) .ocececccceseccseccsesescsesesceesesceesesceeseseeteeees 17

Richardson v. McKnight, 521 U.S. 399 (1997) .ecesscesscesssssssesseesesssesssesssesseessesnseses 8,9

Santosky v. Kramer, 455 U.S. 745 (1982) w..ccceesessssssssessesesssesssesseesesssesnseneees 20, 21

Shelton v. Tucker, 364 U.S. 479 (1960) ..ceccccccccccsssescsesesesesescseseseseseseseseseseecseseecatses 17

Strickland v. Washington, 466 U.S. 668 (1988)

Troxel v. Granville, 530 U.S. 57 (2000) ....cececcececccesecesesceesesccesesceesesceesesceeseeseeeeeeeeeees

United States v. Jewell, 532 F.2d 697 (Oth Cir. 1976)... cccccecessseseseseeseteteeeesenees 22

Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000)... ccceceesssesseesecsesesessseseeeesees 21

Walters v. Western State Hospital, 864 F.2d 695 (10th Cir. 1988)... ee 19

Wolff v. McDonnell, 418 U.S. 539 (1974) ...ccceccecuesesseseseeesessssessesessssnsssesseeeeees 19, 24

Wyatt v. Cole, 504 U.S. 158 (1992)... cceceesesesssessesesssesnessssssssesessesnsnssaseeeenes 7,10

Statutes

28 U.S.C. § 1257. cc seseesessessesnssnsecesesnssnceseseenceseesenesnessesscasseesesacsusaesstsneanseseseenans 2

42 US.C. § 1988 occ ceccc ce sesesneeeeesesscesesssnsscesesusacsaesesnseresesueanseseseaneenessenteneesens i

Calif. Probate Code § 1801

Calif. Probate Code § 1820

Calif. Probate Code § 2250

Calif. Probate Code § 2250

Table of Authorities (Cont.)

Calif. Welfare & Institutions Code § 5001 oe eseessstenessseeeseeeseeeeceseeseneeees 26

vill

Calif. Welfare & Institutions Code § 5008 oe essssssstersssseeeseesseeeeecececeeneeees 22

Calif. Welfare & Institutions Code § 5150... ce ecseeeseseseeeeeeeeeeeseeeee 3, 16, 22, 25

Calif. Welfare & Institutions Code § 5250.0... cc eeseseeteseeesseeeseeeseesseeesenenenee 4,16

Calif. Welfare & Institutions Code § 15751 oe secsesscecsessseessessesenceneceeseseeses ii

Calif. Welfare & Institutions Code § 15766 oo. essscsssseessessseessessesenceseenenseseeses ii

Calif. Welfare & Institutions Code § 5008.00... escsssestersssseesseesseeeeeceeseseneeees 27

Calif. Welfare & Institutions Code § 5150... ecsessseeresenessseeeseesseesenesenenes 26, 30

Calif. Welfare & Institutions Code §5152..0.. ee sesescsesteressseeeseesseeeeseeeseseneeees 19

Rules

US Supreme Court Rule 13.1... ccc eseessceseseseseseessessssssesssesesssessesssssesnssesenes 2

US Supreme Court Rule 30.1... ccc eeeseesssesesesesssessessssseesssssessssessessessessssesenes 2

Constitutional Provisions

First Amendment 00.00... eeeecesseeseeseseesessnesnssnesnsssnssnssnssnssnsancensesssnssnnssnssnsansansansensets 2

Fourth Amendment ....ccccccccccccccscsecssescscsscssscsesssscsssssssscsessssssssesesseesesseseees 2, 6, 15, 17

Fourteenth AMendMent......cccccccsccccssssssessscsssessscsssscsssssesseessssessescese 2, 6,17, 20, 21

PETITION FOR WRIT OF CERTIORARI

Nancy Golin, by Nancy Delaney, her Guardian ad litem, asks that this court

grant her petition for a writ of certiorari to the California Court of Appeal, and

reverse the state court decision affirming a jury’s general verdict against her on

all issues.

OPINIONS BELOW

The opinion of the California Court of Appeal appears as Appendix 1, and

is unreported.

The order of the Court of Appeal denying rehearing appears as Appendix

2, and is unreported.

The order of the California Supreme Court denying discretionary review

appears as Appendix 3, and is unreported.

JURISDICTION

The judgment of the California Court of Appeal was entered on March 26,

2019.

The Court of Appeal denied a timely petition for rehearing on April 22,

2019.

The California Supreme Court denied discretionary review on July 17,

2019.

Justice Kagan extended the time for filing this petition, upon two requests

by Petitioner, to December 14, 2020. Application No. 19A389.

This petition is filed within the extended time, and is timely pursuant to

Rules 13.1 and 30.1 of this Court.

The jurisdiction of this court is invoked pursuant to 28 U.S.C. §1257(a), as

a petition for a writ of certiorari to review the judgment of the highest court of a

State.

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition the

government for a redress of grievances.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched, and the persons or things to

be seized.

Section 1 of the Fourteenth Amendment to the United States Constitution

provides:

No State shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

On November 14, 2001 Petitioner, an autistic, 31-year old intellectually

disabled woman, lived with her parents Elsie and Jeffrey Golin, spoke only few

words (5 RT 867),! and had the mental capacity of perhaps a 3-year old. (5 RT

745.) That evening she and Elsie were parked in Elsie’s van, in front of Elsie’s

workshop in Mountain View, California, watching a video of Beauty and the

Beast. (2 RT 153, 154-155.) Elsie had to go inside to use the bathroom, and tried

to get Petitioner to come with her, but Petitioner pulled a blanket over her head,

declining to go. (4 RT 573-574.) When Elsie returned a few minutes later,

Petitioner was gone. (4 RT 573-574.) Elsie and Jeffrey called the police and

searched all night for her, but she could not be found. (3 RT 353, 4 RT 571, 577,

580.)

The next day about 11:00 a.m., while several Palo Alto police officers were

at the scene (4 RT 584), Petitioner walked up the driveway. (3 RT 368, 4 RT 595.)

Detective Kratzer testified Petitioner’s clothes were dirty, but she had a smile on

her face. (8 RT 369.)

Detective Kratzer sent Petitioner to Stanford Hospital’s psychiatric ward on

a 72-hour “hold” for evaluation and treatment (3 RT 374, 380-381), pursuant to

Calif. Welfare & Institutions Code §5150, part of California’s Lanterman-Petris-

Short (LPS) Act, a statute which authorizes involuntary commitment, without a

warrant or other court order, if a person is a danger to herself or others, or is

gravely disabled. A medical professional at the facility must then make a

determination whether the person needs to be detained. See Calif. Welfare &

Institutions Code § 5150(e).

Petitioner suffers from autism, which is a form of developmental delay. (8

RT 1534.) However, developmental delay is not a “mental disorder” that

satisfies the requirement of section 5150. (8 RT 1514.)

Nevertheless, the Medical Director at Stanford Psychiatry, Dr. Robert

Hayward, accepted her on the basis of the “5150 hold.” (8 RT 1487-1488.) When

1 References are to the record on appeal in the California court, e.g., Volume

5 of the Reporter’s Transcript, at p. 867.

Stanford tried to extend the “hold” for 14 days of “intensive treatment” pursuant

to Welf. and Inst. §5250, this necessitated a court hearing, and the hearing officer

dismissed the hold because these “holds” do not apply to the developmentally

disabled. (8 RT 1555; App. 9.)

During Petitioner’s 13-day stay at the hospital, respondents (except Edna

Mantillas, who was not yet involved) concluded that Petitioner’s parents were

unfit and that Petitioner should not be returned to them. But instead of

instituting a guardianship or conservatorship for Petitioner,? they ultimately

agreed they would send Petitioner to a locked residential care facility for an

indefinite period, and her whereabouts would be kept hidden from her parents.

The day after Petitioner was taken to Stanford Hospital, Jamie Buckmaster,

the manager of Santa Clara County Adult Protective Services, explained to Mimi

Kinderlehrer, SARC’s Director of Consumer Affairs (6 RT 1135, 14 RT 2648), why

getting a conservatorship was “so important.” (6 RT 1087-1088.) Santi Rogers,

Executive Director of SARC (7 RT 1212), testified that at SARC they thought

seeking the conservatorship was the best way to protect Petitioner in the near

future. (7 RT 1249.) He knew that Tucker Liske of SARC was looking for a living

arrangement for Petitioner, and that Petitioner was not conserved. (7 RT 1246.)

Dr. Hayward thought that without a temporary conservatorship, it might be

impossible to have Petitioner legally placed. (8 RT 1591.) Otherwise, said Dr.

Hayward, “who would have the authority to place her, if there wasn’t a court

order conservator to do that?” (8 RT 1592.)

Throughout the time Petitioner was at Stanford, Dr. Hayward testified he

and other Stanford staff members were working integrally with people from

2 Calif. Probate Code § 1801(d), for example, allows a limited conservatorship

of a developmentally disabled adult. The petition may be filed by any interested

person or friend. Calif. Probate Code § 1820(a)(5). A temporary conservator may be

appointed on five days’ notice, or even less if the court finds good cause. Calif.

Probate Code § 2250(c).

SARC and APS, with the goal to find placement “someplace where she would be

safe.” (8 RT 1607.) On November 27, 2001 Tucker Liske reported to APS that he

had found board and care for Petitioner at Embee Manor. He called Jeannie

Lutticken at Stanford and said to tell Stanford’s staff not to disclose Petitioner’s

whereabouts. (12 RT 2325.)

On November 27, 2001, the hospital transferred Petitioner to Embee Manor,

a facility that SARC had arranged for her to reside in (8 RT 1602-1603), and

which, Dr. Hayward said, the hospital trusted to provide appropriate care and

keep her safe. (8 RT 1598.) A note in Adult Protective Services’ file said Detective

Kratzer left a voice message, confirming that Nancy Golin was moved by SARC

to residential care. (6 RT 1099.)

According to Mimi Kinderlehrer, a SARC “consumer” like Petitioner can be

kept in a placement indefinitely, for the rest of her life, without a court order. (14

RT 2692.)

Buckmaster testified she was aware that after November 27th, “nobody had

custody of Nancy.” (5 RT 720.) But she said it didn’t matter to APS whether she

was conserved or not, because APS wanted to keep her safe. (5 RT 721.)

Santi Rogers testified that he approved of everything his staff did, and he

approves of it now [at trial]. (7 RT 1266-1267; 1315.)

Edna Mantillas of Embee Manor knew Petitioner had no conservator. (10

RT 1751.) Exhibit 21 is the admission agreement with Embee, which was

prepared by SARC. (10 RT 1750.) Where it says “consumer signature”

[Petitioner is the “consumer”] there is written “cannot sign,” and the line for

signature by a parent or conservator is blank. (10 RT 1751.) There is also a space

for the “authorized representative” to sign, but no name is written there. (10 RT

1752.) The agreement is dated December 3, 2001, shortly after Petitioner arrived.

(10 RT 1756.) The form also has an authorization for consent for medical

treatment, but where there is a signature line for the consumer, a signature line

for father and mother, and another line for legal guardian, no signatures appear

in those boxes. (10 RT 1761-1763.) Although no signatures appear on the

consent form, Mantillas took Petitioner to various medical doctors for medical

treatment. (10 RT 1764.)

Jeffrey and Elsie were arrested for adult abuse on November 30, 2001. In

2003 the charges against Elsie were dismissed and Jeffrey pled no contest toa

misdemeanor, and after six months of probation, his conviction was expunged

and exonerated. App. 11.

Georgianna Lamb, a friend of the Golin family, was appointed temporary

conservator of Petitioner on October 15, 2002, some 11 months after Petitioner

was seized by the police. (7 RT 1324.) Prior to that date, no legal process

justified Petitioner’s involuntary confinement.

Petitioners filed suit pursuant to 42 U.S.C. § 1983.

Petitioner asserted a violation of her Fourth Amendment right to be secure

against an unreasonable and warrantless seizure of her person, her Fourteenth

Amendment right not to be deprived of her liberty without due process of law,

and a violation of her First and Fourteenth Amendment rights to family

association without unreasonable government interference.

Only the defendant Jamie Buckmaster was a governmental official, but all

defendants asserted an affirmative defense of qualified immunity.

The case was tried before a jury. Petitioner’s motions for a directed verdict

on the issue of liability and on the defense of qualified immunity were denied.

The trial court, over petitioner’s objection, submitted the determination of

qualified immunity to the jury.

The jury returned general verdicts in favor of the respondents. Petitioners’

motion for a judgment notwithstanding the verdicts and a motion for new trial

were denied.

REASONS FOR GRANTING THE PETITION:

1.

This Court Has Consistently Said the Interests of Justice Would Not Be

Served by Extending Qualified Immunity to Private Individuals and

Entities. The California Court’s Ruling Is Contrary to the Precedents of

This Court.

The California appellate court rejected Petitioner’s assertions that the

defense of qualified immunity is not available to private individuals or entities.

The court specifically addressed its decision as applied to the San Andreas

Regional Center (SARC), the entity that made the arrangements to place

Petitioner at the residential care facility, but the court’s decision stated it was

addressing “Qualified immunity for private parties” (App. 28), so it can be

inferred that the court’s reasoning was intended to apply as well to SARC’s

employees, to the operator of the care facility, and to Stanford Hospital.

This Court has thus far refused to extend qualified immunity to private

persons and entities. The decision of the California court is in conflict with this

Court’s decisions.

In Wyatt v. Cole, 504 U.S. 158 (1992) the Court held that private litigants

who conspired with state officials to invoke state statutes later declared

unconstitutional would not be entitled to the qualified immunity that is

accorded to government officials. Id. at 168. The Court observed that the

tradition of the immunity that developed into the doctrine of qualified immunity

was “so firmly rooted in the common law” and was supported by such strong

policy reasons that Congress would have specifically said it was abolishing the

doctrine had it wished to do so. Id. at 164. But the Court concluded that “the

rationales mandating qualified immunity for public officials are not applicable

to private parties.” Id. at 167.

In Richardson v. McKnight, 521 U.S. 399 (1997) the Court refused to extend

qualified immunity to prison guards employed by a private prison management

firm. Looking to the history and purpose of qualified immunity, the Court

pointed out that correctional services have traditionally been performed by both

public and private entities. Id. at 405. The fact that the private guards performed

the same functions as state prison guards was beside the point, for the Court has

never held that the mere performance of a governmental function could result in

qualified immunity. Id. at 408. And because government officials are elected or

appointed, immunity for them may ensure the “vigorous exercise of official

authority,” id. at 408, whereas if private agents perform poorly, competitive

“marketplace pressures” mean they face replacement by others who will doa

safer and more effective job. Id. at 409. Finally, it is less likely that lawsuits will

threaten to distract private individuals from other duties they owe the public. Id.

at 411.

The closest this Court has come to granting qualified immunity toa

private person was Filarsky v. Delia, 566 U.S. 377, 132 S.Ct. 1657 (2012), where a

municipality that had no employment lawyer on their staff hired Filarsky, an

employment specialist, to conduct an official investigation into an employee’s

potential wrongdoing. Id., 132 S.Ct. at 1667. The court compared Filarsky’s

function to that of typical local public officials in 1871, at the time Congress

passed the Civil Rights Act (42 U.S.C. § 1983), when much of local government

was administered by members of society who served the public on a temporary

basis while maintaining their own regular occupation. Id., at p.1662. The court

afforded Filarsky the same immunity that was historically afforded to part-time

government employees. The Court’s opinion is peppered with phrases that

make clear that qualified immunity in this context applies only to those who

carry out the government’s official business in their own right—someone, for

example, who accepts a “government assignment,” or performs “government

duties,” id., 132 S.Ct., at 1666, or who is “working for the government in

pursuing government objectives.” Id. at 1667. In the case at bar SARC and its

employees were not part-time employees “working for the government.” But

Filarsky was; the City had actually hired him to handle a specific case.

The California Court of Appeal decision is also in conflict with Supreme

Court decisions holding that a defendant claiming immunity must plead and

prove the defense. The California appellate court noted the absence of evidence

that SARC was working for the government and noted that the parties’ briefs did

not address the “firmly rooted tradition” factor. (App. 31) At that point the

opinion should have cited Gomez v. Toledo, 446 U.S. 635, 640 (1980) for the

principle that qualified immunity is an affirmative defense, and Dennis v. Sparks,

449 U.S. 24, 29 (1980) for the principle that “the burden is on the official claiming

immunity to demonstrate his entitlement,” and reversed the judgment; see also

Martinez v. County of Los Angeles, 47 Cal.App.4th 334, 342 (1996) [“Qualified

immunity is an affirmative defense against section 1983 claims”]. As this Court

has observed, nothing in the language or legislative history of §1983 suggests

that a plaintiff must allege (let alone prove) bad faith to state a claim for relief.

Gomez v. Toledo, supra 446 U.S. at 639

Instead of reversing the judgment, the appellate court reversed the

imposition of the burden requiring a defendant to show entitlement to the

defense, and placed a burden on the plaintiffs to disprove it: “Because it is

plaintiffs’ burden to provide an adequate record on appeal showing error, the

consequence for these inadequacies falls squarely upon them.” App. 31.

10

Ignoring the Court’s statement in Richardson v. McKnight that this Court

has never held that “mere performance of a governmental function” entitles a

private person to qualified immunity, 521 U.S. at 408, and the statement in Wyatt

v. Cole that “the rationales mandating qualified immunity for public officials are

not applicable to private parties,” 504 U.S. at 167, the California appellate court

concluded the purposes of qualified immunity would be furthered by what it

deemed the “extension” of the defense to SARC and its employees. (App. 31.)

Because the appellate court placed the burden on plaintiffs to disprove

entitlement to qualified immunity, the court did not address the fact that when

Congress adopted § 1983, there was no “firmly rooted” tradition of immunity for

private placement agencies; indeed, we have found no evidence such agencies

even existed in 1871. The appellate court’s decision to extend the scope of

qualified immunity is in direct conflict with the precedents of this Court, for

example, the statement in Wyatt v. Cole, 504 U.S. at 167 that “the rationales

mandating qualified immunity for public officials are not applicable to private

parties.”

Is it time to overrule the rule in Dennis v. Sparks that the burden of showing

entitlement to the defense of qualified immunity is on the government official?

Does the history and purpose of qualified immunity fit better with a rule

requiring the plaintiff in a civil rights case to disprove that a defendant believed

he or she was acting lawfully? The Court should grant the petition to resolve the

conflict between the decision in this case and decisions by this Court.

2.

The Error of Submitting Two Critical Questions of Law to the Jury to

Determine Was Not Harmless.

1

Qualified immunity shields defendants in civil rights actions if a

reasonable person, in light of clearly established law, could have believed their

actions to be lawful. Defendant Jamie Buckmaster, the manager of Adult

Protective Services for the County was a government official, and as such she

was the one defendant who was entitled to assert a defense of qualified

immunity.

Who decides “in light of clearly established law” whether a defendant

could reasonably believe her conduct was lawful? In Hunter v. Bryant, 502 U.S.

224 (1991) the Ninth Circuit had stated that the issue of immunity “is a question

for the trier of fact.” This Court, however, characterized this statement of law as

simply “wrong,” because “[i]mmunity ordinarily should be decided by the court

long before trial.” Id. at 228.

In the context of a similar issue, reviewing courts have sometimes

analyzed defendants’ standard of conduct in a substantive due process context

by asking whether the conduct “shocks the conscience.” In County of Sacramento

v. Lewis, 523 US 833 (1998) Justice Kennedy, in concurrence, wrote to explain

how the test is used to mark the beginning point “in asking whether or not the

objective character of certain conduct is consistent with our traditions,

precedents, and historical understanding of the Constitution and its meaning.”

Id., at 856; see also Armstrong v. Squadrito, 152 F.3d 564, 581 (7th Cir. 1998) [a

court analyzes “precedent, long-standing state and federal statutes, and specific

textual rights”].

Remarkably, the trial court submitted both these questions of law to the

jury, thereby requiring the jury to determine whether a defendant’s good faith

belief was reasonable “in light of clearly established law,” and whether the

defendants’ conduct was “consistent with our traditions, precedents, and

historical understanding of the Constitution and its meaning.”

12

The decision of the California Court of Appeal agreed that both these

issues were matters for the trial court, not the jury, to decide. (App. 39)

But, said the appellate court, submitting these issues to the wrong

decisionmaker was mere “procedural error,” the kind of error which requires the

party aggrieved by the error to show “it is reasonably probable a result more

favorable to the appealing party would have been reached absent the error.” The

appellate court rejected plaintiffs’ argument that the jury is simply not equipped

to make a determination of the applicable law, and the argument that the jury

was not instructed how to assess how a reasonable official in defendants’

position could think the challenged conduct was lawful. This “speculation,” as

the decision characterized the petitioners’ contentions, “falls short of

demonstrating a reasonable probability of a more favorable result absent the

error.” (App. 40.) That is so, said the court, first, because the jury was capable of

understanding the “factual circumstances” underlying the conduct, and second,

because when plaintiffs moved for a new trial, they raised these two issues, and

the trial court therefore “did have the opportunity to make the final

determination on these questions of law, rendering the earlier instructional error

harmless.” (App. 41-42.)

The appellate decision, it will be noted, did not address the question of the

jury’s capacity to understand how to apply relevant legal principles to the

“factual circumstances,” or the trial court’s failure to provide the jury with legal

standards to guide their determination. “Jurors are not experts in legal

principles; to function effectively, they must be adequately instructed in the

law.” Carter v. Kentucky, 450 U.S. 288, 300 (1981). The appellate courtUs decision

is in conflict with this statement.

We suppose in a sense it could be said the trial court had an

“opportunity” to make a “final determination” of the issues when plaintiffs

13

moved for a new trial and a judgment notwithstanding the verdict. But it had

the same opportunity when the plaintiffs objected to presenting these issues to

the jury in the first place. In neither circumstance did the trial court actually take

that opportunity to decide the issues, because, as its original decision to submit

the issues to the jury shows, it erroneously believed they were matters for the

jury, not the trial court, to decide.

Is submitting a question of law to the wrong decisionmaker the kind of

“trial error” that can be quantitatively assessed in the context of other evidence?

Or is it a structural defect in the trial mechanism itself, which makes the trial

itself unfair and defies analysis by “harmless-error” standards? See Arizona v.

Fulminante, 499 U. S. 279, 309 (1991). Can it ever be harmless to submit a

question of law to an entity that has no knowledge of the applicable law? If it

were somehow possible that such an error could be harmless, how does a

reviewing court compare the effect of rulings on questions of law by an

unqualified decisionmaker with the outcome of a hypothetical error-free trial

that never took place, as the appellate court did here? Would not the fact that if

the trial court had an understanding of, and actually decided, the applicable

legal principles mean there was a reasonable probability of a result more

favorable than the result of a decision by an entity with no knowledge of what

the clearly established law is?%

In Jackson v. Denno, 378 U. S. 368 (1964) the Court held unconstitutional

the New York procedure leaving to the trial jury alone the issue of the

voluntariness of a challenged confession. The procedure, said the Court, “did

not afford a reliable determination” of the issue and did not adequately protect

the defendant’s right to be free from a conviction based on a coerced confession,

3 In Strickland v. Washington, 466 U.S. 668, 694 (1988) the Court defined a

“reasonable probability” as “a probability sufficient to undermine confidence in the

outcome.”

14

and for that reason violated the Due Process Clause, requiring reversal of the

conviction. Id. at 377.

A jury only returns a general verdict. “It is impossible to discover whether

the jury found the confession voluntary and relied upon it, or involuntary and

supposedly ignored it. Nor is there any indication of how the jury resolved

disputes in the evidence concerning the critical facts underlying the coercion

issue. Indeed, there is nothing to show that these matters were resolved at all,

one way or the other.” Jackson, supra at 379-380. A defendant is entitled to a fair

hearing at which the facts and the voluntariness of his confession are actually

and reliably determined. “But did the jury in Jackson’s case make these

determinations, and if it did, what were these determinations?” Id. at 380.

Moreover, there is a danger that matters pertaining to guilt will infect the jury’s

findings bearing on voluntariness, as well as the conclusion on the issue itself,

dangers which are “sufficiently serious to preclude their unqualified acceptance

upon review in this Court.” Id. at 383. “And it is only a reliable determination

on the voluntariness issue which satisfies the constitutional rights of the

defendant.” Id. at 387. The court reversed the conviction, without requiring the

defendant to show the likelihood of a more favorable result absent the error.

We submit that submitting a legal question to an entity the law does not

permit to decide makes the trial unfair and unamenable to harmless error

analysis. But this Court has never specifically answered these questions. The

constitutional questions presented are substantial, and the Court should grant

the petition and answer them.

3.

No Reasonable Person Could Believe It Was Lawful to Seize An Autistic,

Mentally Retarded Woman and Involuntarily Confine Her at a Secret

Location for Months Without a Hearing of Any Kind.

15

The remaining claims of error, relating to whether petitioner was entitled

to a directed verdict on the issue of liability as a matter of law and on the issue of

the defense of qualified immunity are related, and can be addressed together.

The California court recognized that there is no doubt that the law in 2001

established that a civil commitment in the mental health context was a

significant deprivation of liberty requiring due process, citing Addington v. Texas,

441 U.S. 418, 426 (1979), and that parents and children have a right to family

association without unreasonable governmental interference. App. 33.

Petitioners submit that the purported good intentions of the government and its

cohorts does not excuse a violation of these rights.

A.

Petitioner’s Fourth Amendment Claim: A Warrantless Seizure of the

Person Is Per Se Unreasonable

A person has been “seized” within the meaning of the Fourth

Amendment if, in view of all the circumstances surrounding the incident, a

reasonable person would have believed that he or she was not free to leave.

California v. Hodari D. 499 U.S. 621, 627-628 (1991); Kaupp v. Texas, 538 U.S. 1,3

(2003); see also Brendlin v. California, 551 U.S. 249, 254 (2007) [”A person is

seized” whenever officials intentionally “restrain the person’s freedom of

movement” or when “a reasonable person would have believed he was not free

to leave”. If the detention is unlawful, it is a “seizure” that violates of the

Fourth Amendment. People v. Takencareof, 119 Cal.App.3d 492, 496 (1981). That

legal principle defines Nancy’s circumstance.

The evidence here was largely undisputed, and the law applicable to

seizure of the person has been clearly established since the Fourth Amendment

was ratified in 1791. “A motion for a directed verdict may be granted upon the

motion of the plaintiff, where, upon the whole evidence, the cause of action

16

alleged in the complaint is supported and no substantial support is given to the

defense alleged by the defendant.” Newing v. Cheatham, 15 Cal.3d 351, 359 (1975).

The federal rule is virtually the same; “the trial judge must direct a verdict if,

under the governing law, there can be but one reasonable conclusion as to the

verdict.” Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 249 (1986).

The respondents relied on Calif. Welfare & Institutions Code §§ 5150 and

5152 to establish probable cause, but as the hearing officer ruled when she

dismissed the “5250 hold,” those statutes authorize the detention of the

mentally disordered, not the mentally retarded. (App. 7-8.) The back of the 5150

form itself was designed to prevent any confusion about the process; it says that

“mental disorder” does not include mental retardation. (8 RT 1660.) Justice Liu

explained this long-standing distinction in his dissenting opinion in People v.

Barrett, 54 Cal.4th 1081, 1126-1127(2012).

The record is replete with conversations among SARC, APS and Stanford

Hospital during Petitioner’s stay at the hospital about the need for a

conservatorship. Jeannie Lutticken, a social worker at Stanford Hospital,

testified it was her responsibility to coordinate the agencies (Palo Alto Police,

SARC, and Adult Protective Services) that were helping Nancy out. (11 RT

2155.) On November 26th, after the “5250 hold” had been dismissed, a meeting

was held at Stanford Hospital “in regard to placement for Petitioner in a locked

facility.” (8 RT 1579.) Lutticken testified Petitioner’s discharge was being

handled by San Andreas Regional Center, and the “team” at the hospital was

the “facilitator.” (12 RT 2303.) Dr. Hayward testified that throughout the time

Petitioner was in Unit H-2, he and the other Stanford staff members were

working integrally with people from SARC and APS, with the goal to find

placement “where she would be safe.” (8 RT 1539, 1607.)

7

California Probate Code § 2250(c) allows appointment of a temporary

conservator upon five days’ notice (see footnote 2, supra, p. 4). But respondents

elected to confine Nancy outside the judicial process.

“Time and again, this Court has observed that searches and seizures

conducted outside the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth Amendment — subject only

to a few specifically established and well delineated exceptions.” Minnesota v.

Dickerson, 508 U.S. 366, 372 (1993) [internal quotes omitted]. The seizure of a

mentally disturbed person is analogous to a criminal arrest and must be

supported by probable cause. Bias v. Moynihan, 508 F.3d 1212, 1220 (9th Cir.,

2007).

In view of this clearly established law, no reasonable person could think it

lawful to involuntarily seize and confine Petitioner for 11 months, even to keep

her safe. The California Court of Appeal decision is contrary to the law as

established by this Court

B.

Petitioner’s Fourteenth Amendment Claim: Involuntary Commitment to

a Residential Care Facility Is a Deprivation of Liberty That Requires Due

Process of Law.

“This Court repeatedly has recognized that civil commitment for any

purpose constitutes a significant deprivation of liberty that requires due process

protection.” Addington v. Texas, supra 441 U.S. 418, 425; see also Humphrey v

Cady, 405 US 504, 509 (1972) [describing civil commitment for compulsory

psychiatric treatment as a “massive curtailment of liberty”].

In O'Connor v. Donaldson, 422 U.S. 563 (1975) Donaldson was civilly

committed to a Florida mental institution, where he was kept confined for 15

years despite his requests to be released and despite the fact that he was capable

of surviving safely outside if he had the help of family or friends. He may have

18

been confined to ensure him a higher living standard than he had had in the

outside community, but this violated Donaldson’s “constitutional right to

freedom.” Id. at 576; see also Shelton v. Tucker, 364 U. S. 479, 488 (1960) [the

government’s purpose may be legitimate, but that purpose cannot be pursued by

means that broadly stifle fundamental personal liberties].

In Addington, the appellant was committed to a mental hospital on a

“preponderance of the evidence” standard of proof. The court held that due

process required more substantial proof under a “clear and convincing”

standard. Addington at 431-432.

If commitment proceedings held in a civil court require due process of

law, can the State avoid problems with the Due Process Clause by simply

eliminating the court proceedings altogether, like in Nancy’s case? We suggest

that if the law is clear that court proceedings require due process of law, a

fortiorart any reasonable defendant would conclude that deprivation of liberty

without any proceedings at all also violates the Due Process Clause.

Not so, said the California court. The legal standard of cases like

Addington is of too high a level of generality to allow an assessment of the

reasonableness of SARC and Buckmaster’s conduct. App. 34. It is true, as the

opinion says, that petitioners did not cite any cases that said “efforts to protect”

a developmentally disabled adult from parental abuse violates clearly

established law. But petitioners claim is not that the respondents protected her

too much, it is that they deprived her of her liberty without due process of law, or

indeed without any process at all.

Nor does the fact that years ago Petitioner had utilized SARC’s services

and was still “eligible for services” make it reasonable for SARC to conclude that

they could involuntarily confine her without any court process—for the rest of

her life, according to SARC’s Director of Consumer Affairs (14 RT 2692)—

19

because, said the California court, they were only “temporarily” withholding her

whereabouts from her parents. App. 35.

Being eligible for “services” does not mean those “services” can deprive a

helpless mentally retarded woman of her liberty without due process of law.

And eleven months is not “temporary.” See McNeil v. Director, Patuxent

Institution, 407 U.S. 245, 249 (1972) [rejecting State off Maryland’s assertion of its

power to confine petitioner indefinitely “for observation” without obtaining a

judicial determination that such confinement is warranted], citing Jackson v.

Indiana, 406 U. S. 715 (1972).

“The touchstone of due process is protection of the individual against

arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974) [due

process applies to prison disciplinary proceedings which may result in loss of

good-time credits]. This is so even when the State is motivated by concerns for

the good of the person whose rights they are violating.

The insight of a constitutional scholar is not necessary to conclude that

involuntarily detaining a person and holding them incommunicado implicates

that person’s liberty interests. Walters v. Western State Hospital, 864 F.2d 695, 699

(10th Cir. 1988). “It would be hard to find an American who thought people

could be picked up by a policeman and held incommunicado, without the

opportunity to let anyone know where they were, and without the opportunity

for anyone on the outside looking for them to confirm where they were.”

Halvorsen v. Baird, 146 F.3d 680 (9th Cir. 1998).

The precedents of this court establish that a warrantless seizure is per se

unreasonable and that a person may not be involuntarily committed without

any process at all. Those precedents are not “too general” for a defendant to

understand. Nor could a reasonable person in Jamie Buckmaster’s place believe

that spiriting Petitioner off to a secret location without anyone’s consent was

20

lawful, or that wanting to keep her “safe” nullifies the protections enshrined in

the Bill of Rights and Due Process Clause.

The opinion of the California Court of Appeal does not directly refute

plaintiffs’ contention that they were entitled to a directed verdict on the issue of

liability, other than to say that “substantial evidence supported the judgment.”

App. 16. However, the same principles that apply to the conclusion that it was

unreasonable for Buckmaster or SARC to think their actions were lawful also

govern plaintiffs’ contention that the evidence established liability as a matter of

law. The need for a conservator was discussed repeatedly while Petitioner was

at the hospital, and good intentions are not a substitute for the protections

afforded by the Constitution. Any reasonable defendant would know that a

conservatorship (whether temporary or permanent) or some other court

authorization, after notice and a right to be heard, is necessary to involuntarily

confine a mentally retarded woman indefinitely.

The Court should grant the petition and resolve the conflict between

Supreme Court precedent and the decision in this case.

Cc.

Petitioner’s Right to Family Association: The Right to Family Association

Is Protected Against Arbitrary Governmental Interference by the Due

Process Clause.

Freedom of personal choice in matters of family life is a fundamental

liberty interest protected by the Fourteenth Amendment, and state intervention to

terminate the relationship between a parent and child “must be accompanied by

procedures meeting the requisites of the Due Process Clause.” Santosky v.

Kramer, 455 U.S. 745, 753 (1982), citing Lassiter v. Department of Soctal Services, 452

U.S. 18 (1981). This Court has also recognized that the association between

family members is protected by the First Amendment. Board of Directors v. Rotary

Club, 481 U.S. 537, 545 (1987).

21

This right of family association applies not just to parents and their minor

children, but to the family itself. Moore v. East Cleveland, 431 U.S. 494, 500 (1977)

(plurality opinion). This is “because the institution of the family is deeply rooted

in this Nation’s history and tradition.” Id. at 503; see also Lee v. City of Los

Angeles, 250 F.3d 668, 686 (2000) [parent and disabled adult offspring have the

constitutional right of familial association protected under Section 1983].)

The liberty interest of parents in the care, custody and control of their

children “is perhaps the oldest of the fundamental liberty interests recognized

by this Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). This fundamental

liberty interest does not evaporate simply because the mother or father have not

been model parents. “If anything, persons faced with forced dissolution of their

parental rights have a more critical need for procedural protections than do

those resisting state intervention into ongoing family affairs. When the State

moves to destroy weakened familial bonds, it must provide the parents with

fundamentally fair procedures.” Santosky v. Kramer, supra 455, 753-754. The

evidence in the case at bar is undisputed that neither the State nor any of the

defendants provided Petitioner and her family with any procedural protections

at all.

“Parents and children have a well-elaborated constitutional right of

family association to live together without governmental interference. That right

is an essential liberty interest protected by the Fourteenth Amendment's

guarantee that parents and children will not be separated by the state without

due process of law except in an emergency.” Wallis v. Spencer, 202 F.3d 1126,

1136 (9th Cir. 2000) [citations omitted].

Contrary to the appellate court’s decision, Petitioner’s case was not an

emergency situation similar to an urgent threat to public safety. Petitioner was

confined at the hospital from November 15 to November 27, 2001, and her

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