California Legislature passes involuntary outpatient commitment bill

With a vote of 65-11, the California Assembly voted to concur with a Senate amendment to involuntary outpatient commitment extension bill AB 2357 (Karnette and Yee), passing the bill out of the State Legislature to be enrolled and chaptered, at which point the bill will go before Governor Arnold Schwarzenegger, either to be signed into law or vetoed.

Opponents of the bill, including the California Network of Mental Health Clients (CNMHC) and Protection & Advocacy, Inc. (PAI), have expressed great disappointment and concern at the overwhelming majority with which the bill was passed in the final votes of both the State Senate and Assembly. Monday's Senate vote represented the last opportunity for opponents to stop the bill in the Legislature.

Six new 'noes', one new 'aye'.

Among the eleven "no" votes in the Assembly yesterday were four who had voted "aye" in the May 18 Assembly Floor vote following the third reading of this bill, John Benoit (R-Riverside), Bob Huff (R-Anaheim), Jay LaSuer (R-San Diego) and Bill Maze (R-Visalia), as well as two who had abstained in the May 18 vote, Loni Hancock (D-Berkeley) and George Plescia (D-San Diego).

Among the 65 "ayes", only one new affirming vote was cast by Rebecca Cohn (D-San Jose), who previously abstained. All but three Assembly Democrats voted "aye" yesterday – 47 in all – including Majority Leader Dario Frommer (D-Glendale), Speaker Fabian Núñez (D-Los Angeles) and Health Committee Chair Wilma Chan (D-Oakland).

Republican Assembly vote split on outpatient commitment. Together with previous "no"-voting Assemblymembers Chuck Devore (R-Irvine), Ray Haynes (R-Riverside), Doug LaMalfa (R-Redding), Tim Leslie (R-Roseville) and Dennis Mountjoy (R-Claremont), each of whom again voted "no", nine of the eleven final Assembly "noes" were cast by Republicans. However, twice as many GOP Assemblymembers (18) voted "aye" as those who voted "no" in yesterday's final Assembly vote, although two of the three Members who were either absent, abstained or didn't vote were also Republicans, including Dave Cogdill (R-Modesto), who voted "aye" in May.

But the GOP Assembly leadership was divided on the bill, with Minority Leader Plescia, Chief Minority Whip LaMalfa, and Minority Whips Benoit and Huff voting "no", while GOP Caucus Chair Greg Azharian, Assistant Minority Leader Rick Keene, and seven other GOP leaders voting "aye".

Misleading analysis may have beguiled Assemblymembers.

A fair amount of evidence indicates that several statements in the final Assembly Floor analysis were inaccurate and misleadingly slanted in favor of the bill. If one accepts that the analysis was inaccurate and misleading, whether by accident or deliberately on the part of Assembly Health Committee Chair Chan's office, a case could be made that many of the Assemblymembers who voted "aye" for AB 2357 may not have done so if they had been properly briefed.

Analysis suggests Prop 63 funding may be possible.

In November 2004, California voters passed Proposition 63, the Mental Health Services Act, which imposes one percent state income surtax on incomes exceeding $1 million to finance an expansion of community mental health programs. "Recent regulations adopted by the [State Department of Mental Health] require programs and/or services provided with MHSA funds to offer mental health services and supports to individuals with severe mental illness and/or severe mental disorders to be 'voluntary in nature' and [to] 'comply with the non-supplantation requirements,'" notes the analysis, prepared by Chan Legislative Assistant Rosielyn Pulmano.

Yet without explanation, the analysis concludes, "It is unclear if Proposition 63 funds could be used for AB 1421 programs."

Discredited claim of 'AB 1421' program in Los Angeles revived.

Yesterday's analysis also states,"Los Angeles County has approved the implementation of AB 1421 for up to 30 mentally ill individuals involved in the criminal justice system for minor offenses per year."

The claim, made repeatedly by AB 2357 proponent Randall Hagar of the California Psychiatric Association, was discredited, however, during the emotionally charged Senate Health Committee hearing of June 14, in which Chair Deborah Ortiz asked the bill's proponents and opponents for clarification on the matter of whether any county had in fact implemented AB 1421.

In his statement in support of AB 2357, Hagar claimed that Los Angeles County had implemented Laura's Law in a small pilot program, that case managers in the county had reported great success with the program, and that other counties, including Sacramento, San Francisco, and Nevada Counties, were intent on implementing the law. Hagar made the same claims repeatedly in prior hearings on the bill in the Assembly.

However, as CNMHC Executive Director Sally Zinman pointed out in her opposing comments, neither Los Angeles nor any other county has ever implemented the law. The L.A. County pilot program in question is a jail diversion program for mental health clients charged with misdemeanors, and both the program director and the county have publicly stated that this program does not implement AB 1421, following a settlement of a lawsuit against the County in which the CNMHC was lead plaintiff. And none of the other counties mentioned has either approved or reviewed an RFP for any AB 1421 program.

Visibly piqued by Hagar's apparent misrepresentation of the facts to the Senate Committee, Ortiz rebuked Hagar, imploring him to be truthful in his statements to the committee.

But the final Assembly analysis ignores that day's comments altogether. "Specifically, [Los Angeles AB 1421 candidates] come from two sources: misdemeanor incompetent to stand trial defendants who have been restored to competency at the Los Angeles County Mental Health Court; or, misdemeanor defendants from the courts covered by the Mental Health Court Program who are at risk for becoming incompetent to stand trial.

"According to the Los Angeles County Department of Mental Health, defendants in these instances voluntarily [sic] agree to participate in AOT [assisted outpatient treatment], instead of being ordered by the court to undergo the treatment," notes the analysis. The diversionary nature of the program, oponents point out, was in fact the rationale behind the CNMHC lawsuit against the County, and was cited in the agreed terms of the out-of-court settlement as the reason why the county had not implemented an AB 1421 program, and would not call the program in question anything of the sort.

"In addition, the sponsors point out that Nevada County is also planning to implement an AB 1421 program," the Assembly analysis continues. This too is a stretch, opponents argue. Nevada County officials are, in fact, seeking to implement AB 1421 as the settlement terms for another lawsuit, by the parents of slain college student Laura Wilcox, for whom "Laura's Law" was named. But the County has yet to allocate sufficient resources to make AB 1421 implementation possible.

Missing: opponents' arguments.

Missing from the Assembly analysis were most of the arguments the CNMHC made in numerous letters to Assemblymember Chan's office in the weeks leading up to the Health Committee's April 4 vote. Considerably more of the arguments of the bill's opponents were included in the final Senate Floor analysis of June 28, despite the fact that both legislative houses received numerous letters and visits in which members of the CNMHC made the same points.

Next target: Governor Schwarzenegger.

The bill's concurrence in the Assembly by a super-majority vote has left mental health clients, survivors, advocates and other opponents of the bill stunned and dismayed at the prospect that the landslide votes will give the appearance of a legislative mandate to the bill, adding pressure to the Governor to sign it into law. As soon as AB 2357 has been chaptered, the CNMHC, together with the Coalition Advocating for Recovery, Empowerment and Services (CARES), a group that includes PAI and the California Association of Social Rehabilitation Agencies (CASRA), plans to mobilize a second letter-writing campaign urging the Governor to veto the bill.

Clients, survivors and advocates across the state have vocally opposed this bill, noting that the statewide legislative battle has fueled a series of inflammatory editorials in some daily newspapers, rekindling tensions between mental health stakeholders and undermining the tentative trust that characterized relations between clients/survivors and county mental health officials during the first-year honeymoon of the Mental Health Services Act (MHSA).

Governor Schwarzenegger is expected to sign the bill into law if it crosses his desk, potentially enabling California counties to expand their capacity to court-order adults to receive psychiatric treatment against their will.

Expedited vote.

The concurrence vote was expedited after Majority Leader Frommer was granted unanimous consent to suspend Assembly Rule 77 to permit consideration of Senate amendments to the bill, which would have been delayed until today or later.

The Senate amendment to which the Assembly voted to concur added the names of two more Assemblymembers, Paul Koretz (D-West Hollywood) and Sally Lieber (D-San Jose), and four Senators, Samuel Aanestad (R-Nevada City), Sheila Kuehl (D-Los Angeles), Jack Scott (D-Pasadena) and Democratic Caucus Chair Tom Torlakson (D-Antioch), to the bill's list of co-authors.

Monday's Senate vote.

After a nearly two-month-long series of delays, the Senate passed the California Senate Monday with a vote of 30-4. The bill, which if chaptered as amended and signed by Governor Arnold Schwarzenegger will extend the sunset date of soon-to-expire outpatient commitment law AB 1421 ("Laura's Law"), now goes back to the Assembly for concurrence on or after Wednesday, August 23rd.

Three of the four stand-out "no" votes,Deborah Ortiz (D-Citrus Heights), Liz Figueroa (D-Fremont) and Wesley Chesbro (D-Arcata), had voted against AB 2357 in the Health Committee. The fourth "no" was cast by Alan Lowenthal (D-Long Beach), who as an assemblyman voted "aye" on AB 1421 but "no" on AB 1800.

Among the "aye" votes were prior AB 1421 supporters, including AB 1421 co-author President pro Tem Don Perata (D-East Bay), Minority Leader Dick Ackerman (R-Orange), Assistant President pro Tem Jackie Speier (D-San Francisco/San Mateo).

Unexpected "ayes" included Rules Committee member James Battin (R-Riverside), Richard Alarcón (D-San Fernando Valley) and Michael Machado (D-Linden), all of whom voted "no" on AB 1421.

Also disappointing the bill's opponents were three hopeful swing "no" voters who voted "aye": Majority Whip Carole Migden (D-San Francisco), and Elaine Alquist (D-San Jose), who as assemblymembers voted "aye" on AB 1421 but "no" on AB 1800, and Chuck Poochigian (R-Fresno) who once voted "no" on 1421 in the Senate Appropriations Committee.

Delays fired up the opposition.

When the vote was deferred earlier this month, the delay provided opponents of the extension of outpatient committment -- mental health clients, survivors, advocates and allies -- one final opportunity to mobilize constituents. The bill's opponents used the additional day and a weekend to wrap up a letter-writing campaign urging Senators to vote "no" on the bill. Also last week, the CNMHC distributed a Floor Alert with talking points in opposition.

Yesterday's vote followed a lengthy postponement in which the vote was delayed seven times, while clients, survivors and advocates struggled to mobilize a letter-writing campaign among constituents. The bill's final Senate vote was most likely postponed due to its position in the order of the Senate Third Reading File. The vote was initially expected June 29 or 30; they were then postponed until August 7 due to legislative recess. The vote was then held over to the next Senate Floor Session on August 10, and delayed in a series of Senate Floor sessions beginning last Monday and continuing until yesterday.