ORDER
JOAN ERICKSEN, District Judge
This case is one of thousands of product-liability actions related to hormone replacement therapy that have been filed in Minnesota apparently to take advantage of Minnesota's generous statute of limitations. See Scott A. Smith, Commentary: Minnesota's Statute of Limitations: Closing the Loophole, Minn. Lawyer, Mar. 31, 2008; see also Minn. Stat. § 541.05 (2008) (providing six-year limitations period for negligence and fraud claims and a four-year period for strict-liability claims); Fleeger v. Wyeth, 771 N.W.2d 524 (Minn. 2009) (in cases properly commenced in Minnesota, Minnesota's statute of limitations applies to personal-injury claims arising before August 1, 2004). Many cases, including this one, were initially consolidated into a multi-district litigation (MDL), but have now been remanded from the MDL.
Plaintiffs are citizens of New York. Pharmacia Upjohn Company f/k/a The Upjohn Company of Delaware f/k/a The Upjohn Company is a Delaware corporation with its principal place of business in Michigan. Wyeth d/b/a Wyeth, Inc., is a Delaware corporation with its principal place of business in New Jersey. Wyeth Pharmaceuticals, Inc., is a Delaware corporation with its principal place of business in Pennsylvania. Defendants designed, manufactured, produced, tested, studied, inspected, mixed, labeled, marketed, advertised, sold, promoted, or distributed hormone therapy drugs. Jo Ann Galati ingested those drugs from approximately 1992 until 1996. She alleges that the hormone therapy drugs caused her to develop breast cancer. Because nothing filed in this case revealed any discernable connection to Minnesota, the Court ordered the parties to brief the propriety of transfer under 28 U.S.C. § 1404(a) (2006). Plaintiffs request transfer to the United States District Court for the Eastern District of New York. Defendants oppose transfer.
"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). In determining whether to transfer venue under § 1404(a), a court is guided by "(1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of justice." Terra Int'l v. Miss. Chem. Corp., 119 F.3d 688, 691 (8th Cir. 1997). The final inquiry, however, is highly fact dependent and does not rely on an "exhaustive list of specific factors." Id.
Here, the convenience of the parties and witnesses favors transfer. Although Plaintiffs initially chose to file this action in Minnesota, they have no connection to Minnesota and litigating in a forum near their residence would plainly be more convenient. Defendants do not argue that New York would be more inconvenient for them than Minnesota. Furthermore, Jo Ann Galati's treating and prescribing physicians will be important witnesses, and ensuring their appearance at trial weighs in favor of transferring this action. Defendants identify no witnesses for whom New York would be a less convenient forum than Minnesota. As noted by another court in this District, "[b]ecause none of the parties is located in Minnesota, none of the relevant events occurred in Minnesota, none of the alleged injuries has been suffered in Minnesota, and none of the evidence is present in Minnesota, Minnesota does not appear to be convenient for anyone." Kunz v. DJO, LLC, Civ. No. 10-712, 2010 U.S. Dist. LEXIS 75050, at *5 (D. Minn. July 26, 2010) (emphasis in original). Indeed, " [a]ny state with any connection to this lawsuit would be more convenient than Minnesota." Id. (emphasis in original).
A plaintiff can choose to inconvenience herself by filing an action in an inconvenient forum, and the Court would not transfer this action "solely to eliminate an inconvenience that [Plaintiff] wants to bear." See Kunz v. DJO, LLC, Civ. No. 10-712, 2010 U.S. Dist. LEXIS 75050, at *5 n. 3 (D. Minn. July 26, 2010). As discussed later, however, the convenience to the witnesses and the interests of justice also strongly favor transfer.
Nevertheless, Defendants maintain that the interests of justice override any inconvenience to the parties and witnesses. The interests of justice typically involve considerations of (1) judicial economy, (2) the plaintiff's choice of forum, (3) comparative costs to the parties of litigating in each forum, (4) the parties' ability to enforce a judgment, (5) obstacles to a fair trial, (6) conflict-of-law problems, and (7) advantages of having a local court determine local law. Terra, 119 F.3d at 696. Defendants acknowledge that factors three through seven are neutral.
Defendants first argue that judicial economy supports keeping this action here "because there will be an opportunity for efficient coordination between the MDL proceedings and consistent and uniform treatment of all of the Minnesota cases." As evidenced by the remand from the MDL, however, such efficiencies as can be gained by consolidated proceedings have already been realized. Additionally, the Court fails to see how maintenance of this case, along with potentially thousands of other cases with no connection to Minnesota, promotes judicial economy. To the contrary, judicial economy supports transfer of this action to ensure that cases that need to be litigated in this District are not caught behind a bottleneck of cases with no connection to the District. Cf. Ferens v. John Deere Co., 494 U.S. 516, 529 (1990) ("`Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin.'" (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)).
Defendants next contend that Plaintiffs should be bound by their decision to file suit in Minnesota and be required to maintain the action here. This argument ignores the fact that § 1404(a) is not "for the benefit only of the moving party." Id. Rather, § 1404(a) "also exists for the benefit of the witnesses and the interest of justice, which must include the convenience of the court. . . . The desire to take a punitive view of the plaintiff's actions should not obscure the systemic costs of litigating in an inconvenient place." Id.; see also In re Volkswagen AG, 371 F.3d 201, 204 (5th Cir. 2004) ("The Supreme Court has clearly indicated that either a defendant or a plaintiff can move for change of venue under § 1404(a) and that the same treatment and consideration should be given to the motion for transfer regardless of who the movant of that motion may be."). Plaintiffs' choice of forum in this case does not overcome the systemic costs of maintaining this action in Minnesota.
Finally, Defendants argue without citation to relevant legal authority that the interests of justice "weigh[] strongly against a Minnesota court requiring the courts of another state to open [their] doors to cases to which the policy of that state would close the doors." Setting aside the fact that the ninety-four federal district courts are not courts of a state, this is exactly what the law permits. The plaintiffs in Ferens brought contract and warranty claims in federal court in Pennsylvania arising from injuries suffered from an accident in Pennsylvania. Ferens, 494 U.S. at 519. Because the Pennsylvania statute of limitations would have barred the plaintiffs' tort claims, they brought those claims in federal court in Mississippi to take advantage of Mississippi's longer statute of limitations. Id. at 519-20. The plaintiffs later requested, without opposition from the defendant, that the Mississippi action be transferred to Pennsylvania. Id. at 520. In holding that the law of the transferor court applies in the transferee court even if the plaintiff requested the transfer, the Supreme Court stated that "[o]ur rule may seem too generous because it allows the [plaintiffs] to have both their choice of law and their choice of forum, or even to reward the [plaintiffs] for conduct that seems manipulative." Id. at 531. But the Court found "no alternative rule that would produce a more acceptable result." Id. Therefore, although a court "may consider the course that the litigation already has taken in determining the interest of justice," id., a plaintiff's desire to choose the applicable law and forum does not affect that determination. Consequently, the interests of justice support transfer of this action.
Defendants also argue that transfer of this action is not warranted because "no other district in the country . . . would have permitted [Plaintiffs'] lawsuit to be litigated because when [Plaintiffs] filed suit on June 16, 2004, [their] case was time-barred under every state's laws, including Minnesota's." This argument misapprehends § 1404(a)'s limitation on an action being transferred "to any other district or division where it might have been brought." "[T]he fact that the statute of limitations would have barred a suit in the proposed transferee district does not preclude a finding that it is a district in which the action `might have been brought.'" 15 Charles Alan Wright, Arthur R. Miller Edward H. Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3845 (2007). Instead, the relevant considerations are whether the defendant would be subject to personal jurisdiction in the transferee district, "whether the defendant would be amenable to service of process [there], whether venue would be proper there, and whether subject-matter jurisdiction would exist there." CSI Tech., Inc. v. Commtest Instruments Ltd., Civ. No. 08-450, 2008 U.S. Dist. LEXIS 69337, at *7-8 n. 4 (D. Minn. Aug. 26, 2008). Defendants do not argue that any of these considerations would have prevented this action from originally being brought in the Eastern District of New York. Accordingly, the Court rejects Defendants' argument.
For the convenience of the parties and witnesses and in the interests of justice, IT IS ORDERED THAT:
1. This action is transferred to the United States District Court for the Eastern District of New York for further proceedings.
2. The Clerk of Court is directed to effect the transfer.
cision.
A. The Right to Testify Under Allen
Allen, like this case, concerned a jury trial to determine whether the defendant (Allen) required recommitment as an SVP. The prosecution presented three mental health experts who had reviewed extensive background documentation, and who had either interviewed Allen or treated him at Atascadero. ( Allen, supra, 44 Cal.4th 843, 849.)
Through this testimony, the People established the following criminal history: Allen was convicted of committing forcible rapes against two women he did not know by entering their vehicles and using weapons to threaten them with harm. Allen also attacked female victims in three other incidents with which he was never charged. They involved a physical assault on an acquaintance in her car, a sexual assault on someone he met in a friend's apartment, and another sexual assault on a teenager he met outside a store. ( Allen, supra, 44 Cal.4th 843, 850-851.)
All three expert witnesses described Allen's behavior in custody. Notably, he had a long history of sexual misconduct toward female staff in both prison and Atascadero (e.g., staring at them, stalking and sexually propositioning them, exposing his penis, and masturbating in their presence). He denied such acts, and would not stop after being rebuked. He also believed the women he harassed were in love with him. In addition, the experts testified about Allen's poor treatment progress. He had not graduated beyond the early phases of the program, and denied committing any sexual crimes. He often refused medication, saying it was unnecessary and dangerous. Sometimes, he took medication only at low doses and in exchange for special privileges. ( Allen, supra, 44 Cal.4th 843, 851-854.)
In testifying that Allen met the standards for recommitment as an SVP, the experts made clear they relied not only on the defendant's past conduct (i.e., adjudicated and unadjudicated crimes, and sexual misconduct in custody), but also on numerous other factors (e.g., lack of remorse or empathy, denial and deceit, delusional and confused thoughts, and poor treatment progress). The consensus from the expert witnesses at trial was that Allen suffered from a diagnosed mental disorder consisting of paraphilia, psychosis, and antisocial personality disorder. Because his condition had not materially improved while hospitalized, he was viewed as posing a continued high risk of offense. ( Allen, supra, 44 Cal.4th 843, 852-854.) Despite this expert evidence of Allen's substantial mental disorders, Allen made, so far as appears, no claim that his mental state rendered him incompetent to participate and assist in his SVP trial.
Two of the three witnesses at Allen's trial also diagnosed him with cocaine dependence. The evidence showed cocaine use in almost all of his criminal offenses, including the rape convictions. ( Allen, supra, 44 Cal.4th 843, 850-854.)
During trial, the court learned that Allen sought to testify against counsel's advice. Such proffered testimony covered three topics: (1) Allen's claim that his victims had consented to the sex acts underlying his criminal convictions and uncharged crimes, (2) physical side effects that made him resist taking medication, and (3) his insistence that his sexual conduct in custody was prompted by the flirtatious behavior of female staff. Counsel alluded to certain tactical reasons for objecting to his client's testimony under such circumstances, including its "`counterproductive'" nature and the prospect of damaging rebuttal. ( Allen, supra, 44 Cal.4th 843, 856-857.) The court deferred to counsel. Hence, no testimony by Allen, or by any other defense witness, was introduced. The jury ultimately found Allen to be an SVP under the Act. ( 44 Cal.4th at p. 857.)
On review, this court agreed with Allen that he had a federal and state constitutional right to testify at trial, and that counsel lacked the ultimate authority to overrule that decision. ( Allen, supra, 44 Cal.4th 843, 848, 863, fn. 14, 870.) However, our analysis was carefully tailored to the substance of the right being asserted and the nature of the interests being weighed.
At the outset, we made clear that Allen did not have the same fundamental right as a criminal defendant to testify over counsel's objection. (See People v. Robles (1970) 2 Cal.3d 205, 215 [ 85 Cal.Rptr. 166, 466 P.2d 710].) Allen explained that proceedings to commit an individual as an SVP serve to protect the public and are civil in nature. Hence, various constitutional rights afforded to defendants in criminal trials simply do not apply in this context. ( Allen, supra, 44 Cal.4th 843, 860.) However, because commitment under the Act involves significant restrictions on liberty, Allen assessed the claimed right to testify in due process terms. The four-part balancing test commonly used for this purpose was applied. ( Allen, at pp. 862-863.)
The first factor concerned "the private interests at stake." ( Allen, supra, 44 Cal.4th 843, 863.) Allen observed that commitment under the Act affects significant interests, including liberty, reputation, and freedom from unwanted treatment. These interests, Allen concluded, weighed in favor of adopting all reasonable procedures to prevent their erroneous deprivation, including a right to testify where counsel objects.
Second, Allen considered "the risk, in the absence of a right to testify, of an erroneous finding that the defendant is a sexually violent predator and the probative value, in reducing this risk, of allowing him or her to testify over the objection of counsel." ( Allen, supra, 44 Cal.4th 843, 863.) Allen observed that an SVP's testimony at trial "typically will concern his or her conduct." ( Id. at p. 866.) In other words, a defendant who testifies over counsel's objection at trial would describe the sexually violent offenses of which he was convicted, any unadjudicated crimes, and any misconduct or other relevant behavior in custody. Allen explained that such information is relevant to the "`foundation'" of the SVP finding insofar as it supports or undermines expert opinion at trial on whether the defendant is mentally disordered and dangerous. ( Ibid.)
Along these lines, Allen acknowledged that the defendant's testimony, even if truthful from his perspective, could harm his case if it confirms expert opinion that he suffers from a dangerous and disordered view of reality. Allen, for instance, sought to testify that some of his victims either consented to or provoked his sexual crimes and misconduct. The clear implication was that the risks inherent in such testimony are often present when counsel decides not to call his client to the stand. ( Allen, supra, 44 Cal.4th 843, 865-866 fn. 16.) Nevertheless, Allen observed that attorneys are not infallible in making such assessments. For this reason, Allen could not eliminate the possibility that a defendant testifying against counsel's advice might "raise a reasonable doubt concerning the facts underlying the experts' opinions." ( Id. at p. 866.) Guaranteeing a right to testify over counsel's objection, even on the narrow range of issues to which such testimony relates, could conceivably reduce the risk of error, at least in the latter cases. Hence, Allen viewed this factor as favoring such a constitutional right to testify.
Third, Allen considered "`the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.'" ( Allen, supra, 44 Cal.4th 843, 866.) Allen highlighted the "strong interest" in protecting the public from SVP's, and in confining and treating them for the mental disorders that predispose them to reoffend. ( Ibid.) Allen theorized that, at least where the defendant's testimony materially enhances the facts supporting expert opinion at trial, his participation as a witness over counsel's objection might help secure an accurate SVP finding. Because such a constitutional right would serve the state's interest in identifying persons requiring commitment under the Act, this factor did not undercut Allen's due process claim.
As to any fiscal and administrative burdens that might arise in such cases, Allen observed they were "de minimis." ( Allen, supra, 44 Cal.4th 843, 867.) Allen noted, for instance, that where the defendant testifies over counsel's objection and such testimony proves to be beneficial to his case, the People must decide whether to present additional evidence in rebuttal. Allen suggested that this circumstance did not add to the burden that the People already bore in responding to defendants who testify at SVP trials with counsel's consent. Likewise, the constitutional right claimed by Allen would not lengthen the proceedings or increase costs except in that "subset of cases" in which the defendant rejects counsel's advice and testifies. ( Ibid.)
The fourth factor that Allen addressed was "`the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official.'" ( Allen, supra, 44 Cal.4th 843, 868.) Allen reiterated that a defendant should be allowed to testify no matter how "strategically misguided" his decision seemed to be. ( Id. at p. 869.) In that situation, the state had "no interest" in treating him merely as a spectator, or in requiring that his story be filtered through counsel or other witnesses. ( Ibid.) Such concerns were found to favor Allen.
Based on its analysis of the competing interests, Allen concluded that there was a due process right to testify over counsel's objection, and that it had been violated in that case. Allen further determined, however, that the error did not require reversal, because it was harmless beyond a reasonable doubt. The reason was that the facts to which Allen sought to testify were largely tangential to the jury's determination that he was a mentally disordered and dangerous sexual offender. According to Allen, no reasonable juror would have rejected the strong expert testimony in this regard. Hence, the judgment recommitting Allen as an SVP was affirmed. ( Allen, supra, 44 Cal.4th 843, 870-875.)
B. Defendant's Mental Incompetence Claim
We agree with the People that, notwithstanding Allen, defendant has not carried his "heavy burden" of invalidating efforts to recommit him under the SVPA based on the trial court's refusal to decide his mental competence to stand trial. ( Otto, supra, 26 Cal.4th 200, 209.) Contrary to what both defendant and the dissent would have us conclude, Allen, supra, 44 Cal.4th 843, is distinguishable in material respects. The due process right to testify recognized there, and the considerations supporting it, are substantially different from those present here. No issue was raised in the SVP trial itself, or argued or addressed on review, that Allen was mentally incompetent to stand trial, such that he could not understand the proceedings or assist in his defense. The People therefore ask that we assess the relevant due process factors anew, guided by the general principles discussed in Allen, while considering the special concerns raised by the complete bar to trial asserted here. We do so now.
The liberty and dignitary interests affected by commitment under the SVPA — which appeared first and fourth, respectively, on Allen's list — are no less significant here than in any other civil commitment case. To a greater or lesser extent, a mentally incompetent defendant may be in the position of "filtering" his contribution in an SVP proceeding through counsel, experts, and other witnesses. ( Allen, supra, 44 Cal.4th 843, 869.) Even so, the defendant in an SVP trial is entitled to a fair and accurate determination of his status as an SVP, under procedures assuring that his liberty and other personal rights are not erroneously impaired.
Nevertheless, defendant overstates the risk of error in the present case. Defendant insists that only a mentally competent person can meaningfully contribute to his defense by providing counsel and mental experts with relevant firsthand information that could help show he is not mentally disordered or dangerous, and that could be used to rebut hearsay and other evidence used against him at trial. However, as Allen, supra, 44 Cal.4th 843, 866, made clear, the nature of the issues, evidence, and findings in an SVP proceeding prevents any defendant from playing much more than a supporting role. His account of his own history and conduct may supplement the foundation on which experts rely in forming their opinions. But it is the combined substance of such opinion evidence, including all the other information on which it is based, that resolves the critical question whether, "as of the date of the trial, defendant had a mental disorder that made it likely he would engage in sexually violent criminal behavior." ( Id. at p. 873.) Thus, any chance that an SVP's mental incompetence would significantly impair his contribution to his defense seems relatively attenuated.
Nor can we ignore the numerous procedural safeguards available to prevent an erroneous commitment in any SVP case, regardless of the contribution the particular defendant is willing or able to make. First, during trial, no defendant, including one who may be mentally incompetent, must proceed without "the assistance of counsel," or without "the right to retain experts or professional persons to perform an examination" on his behalf. (§ 6603, subd. (a).) Even Allen recognized that, as a general rule, such "mandatory representation," coupled with expert assistance, "generally is beneficial" to the defense. ( Allen, supra, 44 Cal.4th 843, 868.) Other heightened statutory requirements, like jury unanimity and the reasonable doubt standard of proof, help mitigate the risk that an incompetent person would be erroneously adjudicated as an SVP in the first place.
Second, the circumstances underlying the SVP determination are monitored over time to determine whether a material change has occurred and whether continued commitment is warranted. Under the current scheme, persons adjudicated and confined as SVP's — including, presumably, those who may have been incompetent at trial — must have their mental condition examined "at least once every year." (§ 6605, subd. (a).) An annual report on whether the person "currently meets the definition of a sexually violent predator" must be filed with the committing court. ( Ibid.) Such defendant may petition for conditional release or unconditional discharge with, or without, the authorization or concurrence of the DMH. (See §§ 6605, subds. (b)-(d), 6608, subd. (a).) Defendants involved in this process are entitled to assistance from mental health experts and counsel. (See §§ 6605, subds. (a) (d), 6608, subd. (a).) As a practical matter, such provisions mitigate the effects of any "error" in the commitment proceeding attributable to the reduced participation of a mentally incompetent SVP. For all these reasons, we cannot say that the risk-of-error factor weighs heavily toward finding the claimed due process right.
The most critical factor, of course, involves the "`government[al] interest[s]'" that weigh against allowing SVP's to avoid being tried or committed while mentally incompetent — an issue that Allen, supra, 44 Cal.4th 843, 866, did not confront or decide. Chief among these is the "strong interest in protecting the public from sexually violent predators, and in providing treatment to these individuals." ( Ibid.) As we have seen, such persons include those who have been convicted of qualifying sexually violent offenses, who have been diagnosed with mental disorders that seriously impair volitional control, and who present a substantial and credible risk that they will commit sexually violent predatory crimes if released. The Legislature has set forth comprehensive and detailed means for providing specialized treatment to persons adjudicated and committed as SVP's. In the process, as the SVPA provides, they are housed in secure facilities specifically dedicated to the confinement and treatment of persons whose mental disorders make them likely to commit violent predatory sexual offenses.
The state's interest in enforcing these procedures, and in protecting the public, would be substantially impaired if an alleged SVP could claim, based on his diagnosed mental disorders, that he was too incompetent to undergo a trial leading to such targeted confinement and treatment. Indeed, as the exhibits supporting defendant's writ petition suggest, we can reasonably assume that significant potential overlap exists between those mental disorders that qualify someone for commitment as an SVP, on the one hand, and those that produce an inability to comprehend the proceedings or assist in one's defense on the other. Here, all three experts diagnosed defendant with a similar condition (bipolar and/or schizoaffective disorder with paranoid delusions, mood disorders and psychotic features). Two of them linked this disorder to his SVP diagnosis, while the third one found it affected his competence to stand trial. To allow anyone and everyone in this situation to seek a competence determination could require unknown numbers, possibly scores, of SVP commitment trials to be stayed indefinitely, and perhaps permanently, unless and until competence was restored under circumstances not involving confinement and treatment under the SVPA. Such concerns weigh heavily, and in fact dispositively, against recognition of a due process right of this kind.
We are not the first court to reach this result. Similar public safety concerns have been expressed in an unbroken line of cases from other states — states with commitment schemes that closely resemble the SVPA. These cases make clear that mentally incompetent persons may be tried, confined, and treated as SVP's. No due process right to avoid trial on mental competence grounds has been found. Unlike the instant Court of Appeal, we do not read the out-of-state cases as relying solely on the civil nature of the proceedings, or believe their views can be ignored. (See Nieves, supra, 846 N.E.2d 379, 385-386; In re Commitment of Fisher (Tex. 2005) 164 S.W.3d 637, 653-654; In re Commitment of Luttrell (2008) 754 N.W.2d 249, 251-252; In re Detention of Ransleben (2006) 135 Wn.App. 535 [ 144 P.3d 397, 398-399]; State ex rel. Nixon v. Kinder (Mo.Ct.App. 2003) 129 S.W.3d 5, 8-10 ( Kinder); see also In re Detention of Cubbage (Iowa 2003) 671 N.W.2d 442, 445-448; cf. In re Commitment of Branch (Fla.Dist.Ct.App. 2004) 890 So.2d 322, 326-328 [declining to find general due process right not to be tried as mentally incompetent SVP, but preventing state from relying solely on hearsay evidence of uncharged crimes to commit such persons as SVP's].)
Two of these decisions are particularly instructive. In Nieves, supra, 846 N.E.2d 379, which the trial court invoked in the present case, the Supreme Judicial Court of Massachusetts balanced the competing interests, as we do here, to determine whether due process prevented a defendant who had been found mentally incompetent from being tried and civilly committed under the state's Sexually Dangerous Persons Act. The liberty interests were deemed substantial, especially since the scheme contemplated commitment for an indefinite term. Nevertheless, the court held that due process was not offended by requiring the mentally incompetent defendant, while represented by counsel, to undergo a commitment trial: "[T]he defendant's interest must, with appropriate safeguards, yield to the Commonwealth's paramount interest in protecting its citizens. We see no reason why the public interest in committing sexually dangerous persons to the care of the treatment center must be thwarted by the fact that one who is sexually dangerous also happens to be incompetent." ( Nieves, supra, at p. 385.)
For similar reasons, the appellate court in Kinder, supra, 129 S.W.3d 5, held that trial should not have been stayed under Missouri's version of the SVPA to determine the defendant's mental competence. The court noted that the "very nature of civil commitments" is to provide treatment for those who are dangerous to themselves or others because they suffer from a mental disorder that prevents them from comprehending and responding to reality. ( Kinder, at p. 8.) The court observed that due process permits the civil commitment and confinement of criminal defendants found chronically incompetent to stand trial. ( Id. at p. 10, citing Jackson v. Indiana (1972) 406 U.S. 715, 738 [ 32 L.Ed.2d 435, 92 S.Ct. 1845].) Kinder thus found nothing wrong with allowing a mentally incompetent person whose disorders involve sexual dangerousness to be committed, not for incompetence, but as an SVP, to afford him the most appropriate treatment and provide the public with the greatest protection. A contrary approach, the court said, would "thwart the proper exercise of legislative authority for the health and welfare of the state's citizens. . . ." ( Kinder, at p. 10.) For these reasons, Kinder held, the SVP defendant there failed to show that he had a due process right not to be tried while mentally incompetent.
No California case addresses whether a mentally incompetent person can be tried and committed as an SVP. However, in People v. Angeletakis (1992) 5 Cal.App.4th 963 [ 7 Cal.Rptr.2d 377] ( Angeletakis), the Court of Appeal declined to find such a due process right under closely related circumstances. There, the defendant had been found not guilty by reason of insanity of a felony offense, and committed to Patton State Hospital. Several years later, during a hearing to extend his commitment for the third time (see Pen. Code, § 1026.5), the defendant claimed through counsel that he was mentally incompetent to proceed. Without hearing any evidence on the issue, the trial court rejected the claim. At the ensuing trial, several experts testified that the defendant was a paranoid schizophrenic, that he was delusional and dangerous, and that his deteriorating condition was not always helped by medication. The jury found that the defendant presented a substantial danger of physical harm to others if placed in an unsupervised setting. Commitment was extended for two years. ( Angeletakis, supra, at pp. 966-967.)
On appeal, the court rejected any suggestion that the defendant was entitled to the same statutory procedures or constitutional rights that applied to mentally incompetent persons being tried in a criminal case. Rather, the court examined and weighed the factors generally deemed relevant for determining the nature of due process protections in civil commitment proceedings. The court perceived little risk of error in light of the procedural safeguards available under the particular statutory scheme, including the right to counsel. The court also observed that such provisions provided for confinement and treatment under conditions designed to address the defendant's mental health concerns. On balance, no due process right to prevent recommitment on incompetence grounds was found. Only "minimal protection" would be gained by suspending trial until the defendant could "understand the nature of the proceedings and assist in the conduct of his `defense.'" ( Angeletakis, supra, 5 Cal.App.4th 963, 971.)
Finally, we observe that substantial "administrative burdens" and practical difficulties appear to arise if a convicted sexually violent offender who qualifies as an SVP cannot be tried and committed as such while mentally incompetent. ( Allen, supra, 44 Cal.4th 843, 867.) It bears emphasis that the SVPA includes no provisions for incompetency proceedings in the context of commitment trials. The People thus contend that if the defendant is found incompetent to stand trial, and all proceedings under the SVPA are suspended as a result, courts are left without clear statutory guidance on such issues as the nature and length of any permissible placement, the provision of any treatment while the person remains incompetent, and the availability of civil commitment under another statutory scheme if competence is never regained. The People suggest that, while the Court of Appeal sought to "fill the gap" by adopting procedures reminiscent of those used for incompetent criminal defendants under Penal Code section 1367 et seq., its decision largely provides no satisfactory answers to these questions.
We agree that any effort to apply Penal Code section 1367 et seq. under circumstances suggested by the Court of Appeal only serves to highlight the uncertainty that would arise were we to recognize a due process right not to be tried as an incompetent SVP. For example, the nature of any placement under the statutory scheme for incompetent criminal defendants depends in large part upon the "charges" pending against the person when the incompetence finding is made and criminal proceedings are suspended. It is uncertain how such a "nature of charges" distinction would apply to SVP defendants, who have already been convicted of, and imprisoned for, one or more sexually violent crimes.
It also is not clear where incompetent SVP defendants would be confined pending their restoration to competency, or what treatment, if any, they would be offered during that time. We note that an incompetent criminal defendant "charged with a violent felony" may not be placed in a state hospital or other treatment facility unless it either has a "secured perimeter" or is "locked and controlled," and the court finds that public safety will be protected in the particular case. (Pen. Code, § 1370, subd. (a)(1)(D).) Here, the Court of Appeal ordered that defendant be moved to "a state hospital for the care and treatment of the mentally disordered" if he was found incompetent to undergo another SVP trial.
However, neither the Penal Code provisions on which the Court of Appeal so loosely relied, nor the provisions of the Court of Appeal's order, track the definition of "secure facility" under the SVPA, including its exclusions and limitations on the state mental hospitals that may be used to house SVP's both during and after trial. (§ 6600.05.) Nor do the criminal incompetency statutes provide for special treatment "protocol[s]," as set forth in the SVPA. (§ 6606, subd. (c).) These strict standards and protocols, whose purpose is to keep the community safe from the sexually predatory propensities of persons who qualify as SVP's, also help protect patients and workers inside the state mental hospital system. The danger to these groups would be enhanced if persons allegedly too incompetent to be tried and committed as SVP's were to be housed indefinitely, and perhaps permanently, in places not designed and staffed to deal with the peculiar risks they pose. Thus, as the People suggest, we would have no relevant template if we allowed SVP defendants to avoid trial while incompetent. These concerns seem particularly troubling where, as here, the defendant has already been committed under the SVPA, probable cause has been found that he is likely to reoffend, he has been ordered to remain in a "secure facility" pending trial, and proceedings to recommit him and continue his placement are underway.
At oral argument in this court, counsel debated the mental health treatment available at a secure facility, like Coalinga State Hospital, for someone who was mentally incompetent when adjudicated as an SVP. Defendant seems concerned that — even after trial is complete and competence to assist therein is no longer in issue — the mental condition underlying such incompetency could interfere with the sex offender treatment program required under the SVPA, and that such condition might go unaddressed during the commitment term. On the one hand, we decline to question the benefits the Legislature obviously believed both society and the SVP would gain from treatment targeting his dangerous sexual disorders, or to assume that any person committed as an SVP is unable, by reason of his mental condition, to benefit from such treatment. On the other hand, we see nothing in the SVPA to prevent treatment from being provided for the full range of diagnosed disorders that might impair the SVP's receptivity to sexual therapies, or that might otherwise enhance his prospect for restoration to full mental health.
Balancing all the foregoing factors, and placing special weight on the "paramount" interest in public safety, we conclude that due process does not require mental competence on the part of someone undergoing a commitment or recommitment trial under the SVPA. ( Nieves, supra, 846 N.E.2d 379, 385.)
IV. CONCLUSION
We reverse the judgment of the Court of Appeal.
George, C. J., Werdegar, J., Chin, J., and Corrigan, J., concurred.
MORENO, J. Dissenting.
I respectfully dissent.
"Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law prohibit the state from trying or convicting a criminal defendant while he or she is mentally incompetent. [Citations.]" ( People v. Rogers (2006) 39 Cal.4th 826, 846 [ 48 Cal.Rptr.3d 1, 141 P.3d 135].) An individual is mentally incompetent to stand trial "if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (Pen. Code, § 1367, subd. (a), italics added.) This deeply embedded due process principle arises from a repugnance, both legal and moral, in forcing a criminal defendant into a trial that may result in substantial loss of liberty when the defendant is incapable of understanding the proceeding, or assisting in the defense. In my view, it is equally repugnant to force an individual to stand trial as a sexually violent predator (SVP) and face a potential lifetime term of civil commitment when that person lacks the competence to understand, or participate meaningfully in, the Sexually Violent Predator Act (SVPA) proceeding. (Welf. Inst. Code, § 6600 et seq.; statutory cites are to this code unless otherwise designated.) I believe that this conclusion is compelled by our decision in People v. Allen (2008) 44 Cal.4th 843 [ 80 Cal.Rptr.3d 183, 187 P.3d 1018] ( Allen).
The majority characterizes the right at issue as "an SVP's right to delay or avoid targeted confinement and treatment for a sexually violent mental disorder because his mental problems make him incompetent to stand trial." (Maj. opn., ante, at p. 820.) Such characterization assumes that SVP's would assert claims of incompetence merely to delay or avoid commitment. Not so. The right at issue here is the due process right to be competent at an SVPA proceeding. Furthermore, the substantial safeguards in criminal cases against claims of incompetence made simply for purposes of delay would also apply in the SVPA context. For instance, as is true of criminal trials, the question of competency in SVPA proceedings would not be raised by the defendant but by the court or the defendant's attorney. (Pen. Code, § 1368.) Moreover, even when counsel expresses a doubt about competency, the trial court need only conduct a competency hearing when it "`is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant's competence to stand trial.'" ( People v. Lewis (2008) 43 Cal.4th 415, 524 [ 75 Cal.Rptr.3d 588, 181 P.3d 947].) Additionally, as in criminal proceedings, an SVP's competence would be evaluated by mental health professionals who can certainly assess whether an individual is malingering.
Along these same lines, I reject the majority's speculation that recognizing the right to be competent at an SVPA proceeding would open the floodgates to incompetency claims. (Maj. opn., ante, at pp. 825-826.) Few individuals would be deemed incompetent to undergo SVPA trials. The reason is simple: All individuals in SVPA proceedings have been convicted of criminal offenses and were thus necessarily mentally competent at the time of the conviction. Thus, only those defendants who could demonstrate that they had become incompetent while serving their sentences could assert a competency claim.
As the majority acknowledges, Allen provides a four-part balancing test with which we determine what process is due SVP's. (Maj. opn., ante, at p. 819.) "`(1) [T]he private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest though the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail; and (4) the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official.'" ( Allen, supra, 44 Cal.4th at pp. 862-863.)
The majority concedes that "[t]he liberty . . . interest['] affected by commitment under the SVPA . . . [is] no less significant here than in any other civil commitment case." (Maj. opn., ante, at p. 824.) Having made this concession, however, the majority quickly minimizes the importance of the liberty interest. The majority is wrong. That interest is as significant, if not more significant here, than it was in Allen. It is worth pausing and reflecting upon what we said about that interest a little more than two years ago.
"We begin with the private interests at stake. As we noted in [ People v.] Otto [(2001)] 26 Cal.4th 200 [ 109 Cal.Rptr.2d 327, 26 P.3d 1061], `the private interests that will be affected by [a finding that the defendant continues to be a sexually violent predator] are the significant limitations on [the defendant's] liberty, the stigma of being classified as [a sexually violent predator], and subjection to unwanted treatment. [Citation.]' ( Id. at p. 210.) . . . `[T]he California Legislature has recognized that the interests involved in civil commitment proceedings are no less fundamental than those in criminal proceedings and that liberty is no less precious because forfeited in a civil proceeding than when taken as a consequence of a criminal conviction.' ( In re Gary W. (1971) 5 Cal.3d 296, 307 [ 96 Cal.Rptr. 1, 486 P.2d 1201]. . . .) Thus, the first factor weighs heavily in favor of providing all reasonable procedures to prevent the erroneous deprivation of liberty interests." ( Allen, supra, 44 Cal.4th at p. 863, fn. omitted.)
If those observations were true with respect to a defendant's right to testify at his or her SVPA proceeding, they apply with even greater force to a defendant's right to be competent at that proceeding. A defendant who is unable to understand the nature of the proceeding or to meaningfully assist counsel is subject to the same deprivation of liberty, the same stigma of being classified as an SVP and the same subjection to unwanted — and, because incompetent, ineffective — treatment.
Nor is it an answer, as the majority asserts, that competency is not required because "the nature of the issues, evidence, and findings in an SVP proceeding prevents any defendant from playing much more than a supporting role." (Maj. opn., ante, at p. 824.) I find no support in Allen for such a global characterization of the defendant's role in an SVPA proceeding. To the contrary, in discussing the importance of allowing a defendant to testify, even over the objection of defendant's counsel, we observed: "[A]s has been recognized in cases in which a sexually violent predator has asserted the privilege against self-incrimination, the defendant's participation in the proceedings, through pretrial interviews and testimony at trial, generally enhances the reliability of the outcome. Moreover, as observed in Otto, supra, 26 Cal.4th 200, if critical information, such as the details surrounding the commission of the predicate offenses, is questionable, `a significant portion of the foundation of the resulting [sexually violent predator] finding is suspect.' ( Otto, supra, 26 Cal.4th at pp. 210-211.) Because the testimony of a defendant typically will concern his or her conduct, this testimony may relate to information that is critical to the experts' testimony. . . . In some cases, the defendant's testimony may raise a reasonable doubt concerning the facts underlying the experts' opinions. Accordingly, in every case there exists a risk that allowing counsel to preclude the defendant from testifying will lead to an erroneous deprivation of rights. Guaranteeing the defendant a right to testify, even over counsel's objection, will mitigate this risk." ( Allen, supra, 44 Cal.4th at pp. 865-866, fn. omitted, italics added.)
Apparently, the majority's characterization of the defendant's role in an SVPA proceeding as "supporting" is based on the particular circumstance in Allen that Allen's testimony would not have been particularly useful to him. But even in that circumstance, we rejected the argument that the "supporting role" status of a defendant is sufficient to overcome the risk of deprivation of the liberty interest. "Although . . . we agree with the Court of Appeal that defendant's testimony would not have assisted him in preserving his liberty interests in this case, here we seek to establish a rule of general application in proceedings under the SVPA. `[P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.' ( Matthews v. Eldridge (1976) 424 U.S. 319, 344 [ 47 L.Ed.2d 18, 96 S.Ct. 893].) Therefore, we consider generally whether allowing a defendant in a proceeding under the SVPA to testify over the objection of his or her counsel may aid the defendant in preventing the erroneous deprivation of liberty interests, rather than whether the right would aid the particular defendant before us." ( Allen, supra, 44 Cal.4th at p. 865.) A fortiori, an incompetent defendant, by definition, cannot play any role — whether starring or supporting — in preventing the erroneous deprivation of his liberty interests.
If, then, we recognized in Allen that a defendant's testimony might be potentially game changing with respect to the liberty interest — and such testimony is but one aspect of the defendant's potential participation in an SVPA proceeding — how much more vital is it that a defendant be competent during that proceeding not just to testify but to assist counsel in evaluating and responding to the state's case against the defendant? The answer is clear: Forcing an incompetent defendant to undergo an SVPA trial will, in every such case, create a risk of depriving the defendant of his or her liberty interest. Thus, this factor weighs mightily in favor of recognizing a due process right to be competent during an SVPA trial.
The second Allen factor, which balances the risk of deprivation of the liberty interest under current procedures against the probable value of additional procedural safeguards, also weighs heavily in favor of recognizing a right to be competent in SVPA proceedings. As noted, an incompetent defendant is powerless to vindicate his or her liberty interests under the current procedural regime, which does not contain a process for guaranteeing competency. The majority uses this very lack of a safeguard as a reason to deny it. The majority argues that, because the SVPA is silent as to the issue of incompetency, no "relevant template" exists by which to process incompetent SVP defendants. (Maj. opn., ante, at p. 829.) I strongly disagree. If a court cannot remedy a due process violation, then judicial power is for naught. It is well established that courts possess an inherent power to adopt procedures which promote due process rights in the face of statutory silence. ( Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 812-813 [ 31 Cal.Rptr. 316, 382 P.2d 356] [it is "beyond dispute that `Courts have inherent power . . . to adopt any suitable method of practice, both in ordinary actions and special proceedings, if the procedure is not specified by statute or by rules adopted by the Judicial Council'"].)
Most relevantly, in James H. v. Superior Court (1978) 77 Cal.App.3d 169 [ 143 Cal.Rptr. 398], the Court of Appeal held that "in the absence of any statutory procedure for so doing the juvenile court has the inherent power to determine a minor's mental competence to understand the nature of [juvenile] proceedings . . . and to assist counsel in a rational manner at that hearing." ( Id. at p. 172.) The court in James H. relied on its "inherent powers to formulate procedures which have not yet attained legislative approval" ( id. at p. 176) and referred the trial court to Penal Code section 1367. Here, too, Penal Code section 1367 et seq., provide an established framework for assessing incompetency and dealing with SVPA defendants who are found to be incompetent. I agree with the Court of Appeal that "this is an appropriate case for the exercise of [this court's] inherent power to look to [Penal Code section 1367] in order to fill the gap in the SVPA, so as to enable the Act to function in a constitutional manner."
The majority concedes that the dignitary interest — the fourth Allen factor — weighs in defendant's favor in this case. Again, it is worth pausing to examine what that interest entails as we explained it in Allen. The central facets of the dignitary interest are (1) "`informing individuals of the nature, grounds, and consequences of the action,'" and (2) "`enabling them to present their side of the story before a responsible government official.'" ( Allen, supra, 44 Cal.4th at pp. 862-863.) Of course, if a defendant is incompetent for the purposes of Penal Code section 1367 — unable to understand the proceedings or to assist counsel — then, by definition, that individual cannot be informed of the nature, grounds and consequences of the proceeding. Nor would that individual have the capacity to present his or her side of the story. Again, it matters no more in the competency context than in the right to testify whether "a defendant generally can communicate his or her version to and through the experts and counsel and through other witnesses. . . ." ( Allen, supra, 44 Cal.4th at p. 869.) In either case, denying a defendant the right to present his or her side of the story "relegate[s]" the defendant "to the role of a mere spectator, with no power to attempt to affect the outcome." ( Ibid.) Thus, compelling an incompetent defendant to endure an SVPA commitment proceeding thoroughly violates his dignitary interests.
Against these three factors that weigh in favor of a due process right to competency in SVPA proceedings, the majority cites the governmental interest — factor (3) — which it identifies as public safety. (Maj. opn., ante, at p. 825.) According to the majority, "the strong governmental interest in protecting the public" ( ibid.) would be "substantially impaired" if courts recognized an SVP's right to a competency determination ( id. at pp. 825-826). This is true, the majority reasons, because SVP's "present a substantial and credible risk that they will commit sexually violent predatory crimes if released." ( Id. at p. 825.)
It is, of course, true that protecting the public is the paramount aim of the SVPA but it is not true that recognizing an SVP's right to be competent at an SVPA proceeding would result in the release of deranged sexual predators on a defenseless public. Rather, a defendant found to be incompetent would remain civilly committed in a secure facility while receiving treatment designed to restore competency and, once competency was restored, would then be subject to SVPA proceedings. The result: an unbroken internment, whereby the defendant would remain in custody while incompetent, or remain incarcerated as an SVP.
Indeed, civil commitment to restore competency would precede, not replace, any targeted SVP treatment. No confined SVP would be released until after a jury had determined that he or she was no longer dangerous. Defendants never restored to competency would be confined indefinitely, and while the majority expresses a concern that doing so would enable defendants to avoid trial, it fails to explain how this indefinite commitment would endanger the public. (Maj. opn., ante, at pp. 825-826.) The majority erroneously frames this issue as a choice between recognizing the right to be competent during an SVPA proceeding and compromising public safety. In fact, the real choice here is between shuffling incompetent defendants through SVPA proceedings and treating them in a secure environment until competence is restored. Thus, contrary to the majority's assertion, I do not find that the governmental interest in public safety outweighs the other three Allen factors that tip the scale toward recognizing a defendant's due process right to be competent.
Finally, I strongly disagree with the theme that runs through the majority opinion conflating the disorders which render one an SVP and those which render one incompetent to stand trial. In a breathtaking example of ipse dixit reasoning the majority asserts — without a shred of scientific evidence or a legal authority — that we can "reasonably assume" that "significant potential overlap exists" between those mental health disorders that quality someone for commitment as an SVP and those rendering one incompetent to stand trial. (Maj. opn., ante, at p. 825.)
This assertion is simply wrong as a matter of relevant statutory comparison. Under the SVPA, a defendant is deemed to be an SVP if the defendant has "a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).) A "diagnosed mental disorder" is defined as "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." ( Id., subd. (c).) Thus, the mental disorders which render one an SVP relate to sexual aberrations that increase the likelihood one will engage in sexually violent criminal behavior. By contrast, under Penal Code section 1367, "[a] defendant is mentally incompetent . . . if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (Pen. Code, § 1367, subd. (a).) The two definitions are not congruent. An individual can be a pedophile or a rapist and thus suffer a mental disorder for purposes of the SVPA while remaining perfectly competent to understand the nature of, and participate in, an SVPA proceeding. Accordingly, I reject as unsupported the assertion by the majority that substantial overlap exists between those mental disorders that qualify an individual as an SVP and those rendering an individual incompetent.
The majority suggests that in this case there is significant overlap between the mental disorders that qualify defendant as an SVP and those that affect his competence. (Maj. opn., ante, at pp. 825-826.) I have examined the submissions by the three experts who diagnosed defendant and I am not wholly persuaded that this characterization is correct, but even if it is, as was true in Allen, the due process right to be competent in an SVPA proceeding is "`shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.' [Citation.]" ( Allen, supra, 44 Cal.4th at p. 865.)
In short, it is my view that the majority, under the pretext of distinguishing Allen, eviscerates that opinion. Of course, it is true that Allen did not address the competency issue we consider here, but that does not render the due process analysis we set forth in Allen inapplicable here. To the contrary, compelling an incompetent defendant to submit to an SVPA hearing is, if anything, a more serious due process violation than denying a competent defendant the right to testify on his own behalf at such proceeding. Denying a defendant the right to testify over counsel's objection implicates but one discrete aspect of the defendant's overall defense. By comparison, forcing an incompetent defendant to endure an entire SVPA proceeding impacts virtually every aspect of the defense. Not only would defendants be robbed of the opportunity to testify in a competent manner, they would also be deprived of the ability to communicate meaningfully with their attorneys and with the court, and to confront adverse witnesses. A mentally incompetent defendant is unable to dispute facts, challenge admissible hearsay evidence or contradict erroneous factual assumptions used by expert witnesses — factors the Allen court found critical to ensuring the reliability of the proceedings.
By contrast, recognizing a right to be competent in SVPA proceedings would provide a safeguard against the unsavory prospect of subjecting individuals who are not SVP's to SVPA confinement and treatment. Moreover, restoring to competence those who actually are SVP's would avoid the "futile" exercise of attempting SVPA treatment on incompetent subjects. (See Abrams et al., The Case for a Threshold for Competency in Sexually Violent Predator Civil Commitment Proceedings (2007) 28 Am. J. Forensic Psychiatry 7, 22-23 ["[A]ttempting to [treat the] behaviors of an SVP that precipitate within the matrix of a florid psychosis or severe cognitive impairment would prove futile. . . . [C]urrently available treatments for SVPs find [their] provenance in rational, goal-directed, even insightful cognition."].) Thus, contrary to the majority, no Pandora's box would be opened by extending the right to competency to defendants in an SVPA proceeding. Rather, competent SVP's who would benefit from treatment would receive it while those few deemed to be incompetent would be restored to competency so that the issue of their SVP status could be determined and, if they were found to be SVP's, offered treatment.
For all these reasons, I must dissent.
Kennard, J., concurred.