KAUS, J., Concurring. This litigation has been pending far too long. Since the fault is chiefly, if not exclusively, mine, I shall try to help us close the book on this case by being brief.
When the court filed its first opinion, I felt that it painted with too broad a brush. I said so in a concurring and dissenting opinion in which I was joined by Justice Reynoso. I still feel the same way. My basic theory is this: it is undeniable that equal protection principles do not permit us to saddle a tiny segment of the public with the cost of protecting society from persons who, for one reason or another, must be confined in institutions. Yet if such a person has someone who is legally responsible for supporting him with the necessaries of life—food, clothing, shelter—I see no reason why the state cannot charge the responsible party for whatever he saves by not having to support the person “on the outside.” The plurality suggests that such a scheme “would betray a misguided sense of values.” Perhaps [12]so, but it is not for us to make value judgments concerning legislation which passes constitutional muster.1
It was my original belief that we already had such legislation on the books and that all we had to do was to remand these proceedings to the trial court to determine whether the county was attempting to charge Jerald’s father for costs which exceeded the reasonable value of his parental obligation-in other words, whether the father was being charged for the cost of incarceration. I have, however, concluded that the problem is far more complicated—substantively and administratively—and that the applicable statutory scheme does not lend itself to an efficient segregation between those costs which may legitimately be charged to the parent and those which are the responsibility of the general public. I will briefly explain some of the reasons which caused me to change my mind.
To begin with, it now seems clear to me that isolating and disallowing the cost of security would not, in itself, cure all the constitutional problems in this area. The cost of supporting a minor in a county institution may, in dollars and cents, often exceed the preexisting support obligation of a particular parent. It is sad but true that from a purely material point of view, for many minors confinement in juvenile hall is a step up. As noted above, my understanding of what equal protection principles—as set forth in Dept. of Mental Hygiene v. Kirchner (1964) 60 Cal.2d 716 [36 Cal.Rptr. 488, 388 P.2d 720, 20 A.L.R.3d 353]—allow and what they forbid, leads to the inevitable conclusion that a parent cannot be compelled to foot the bill for a minor’s improvement in living standards, when such improvement is triggered by the need to detain the minor for the public good. Therefore, any system of exacting from a parent part of the cost of maintaining a minor in a public institution must be capable of taking into account at least the approximate level of that parent’s support obligation. The statutes in force at the time the order before us was entered are inefficient tools for such fine tuning.
In these statutes, the Legislature had devised a straightforward statutory scheme under which each county legislatively determined the total cost of confining the minor (Welf. & Inst. Code, § 904) and the parent became [13]obligated to pay the full amount thus fixed (former § 903),2 subject only to remission of sums which the county probably could not collect in the first place.3 The only factual issue which could arise under that scheme was the parent’s ability to pay. If we were to attempt to mold this crude statutory framework to constitutional imperatives, each attempt to collect a few hundred dollars could turn into a complex trial involving tricky questions of classification—support vs. security—cost accounting, and the proper level of the parental support obligation.4 It is anyone’s guess whether under such circumstances the Legislature would deem attempts to obtain reimbursement under section 903 cost effective.
Nor would all this litigating bring much light into this dark corner of the law. Judicial horizons are necessarily limited by the factual and legal issues which parties choose to frame. The Legislature, on the other hand, has a bird’s eye view of the entire problem and could do much to simplify collections while maintaining constitutional standards. First, having in mind the diverse expenses that are actually incurred by the counties and the state in juvenile institutions, it can—subject to Kirchner standards—decide which of these expenses should appropriately be charged to parents. Second, considering the need for careful segregation of program costs, the Legislature may want to establish guidelines, so that all counties will make comparable charges for comparable services. Third—and most vitally—because the amount that a parent may be charged will necessarily vary with the parent’s circumstances during the minor’s confinement, the Legislature may well find that efficiency and fairness demand the establishment of a schedule of graduated fees, tailored as near as may be to the particular parent’s support [14]obligation. (Cf. Swoop v. Superior Court (1973) 10 Cal.3d 490, 508-510 [111 Cal.Rptr. 136, 516 P.2d 840] [relatives’ contribution scale as embodied in former § 12101].)
In sum, although I believe that the state may constitutionally require responsible parents to pay a part of the cost of maintaining a minor in a county institution, I conclude that we should not attempt to bend the statutory framework applicable to this case into constitutional shape, but rather should leave the Legislature to address several practical questions in light of the constitutional principles discussed.5
Accordingly, I concur in the judgment.
Reynoso, J., Grodin, J., and Richardson, J.,* concurred.
After we granted a rehearing in this case, the 1983 Legislature amended section 202 and rewrote section 903 of the Welfare and Institutions Code. (Stats. 1983, ch. 1135, §§ 1-3, p. —.) This legislation—summarized in footnote 5, infra—does not, of course, affect the parties to this dispute.
A number of decisions demonstrate both the kind of expenses that were considered in computing the relevant cost figures under the applicable statutes and the level of “support payments” that such computations could yield. In In re Shaieb (1967) 250 Cal.App.2d 553, 556 [58 Cal.Rptr. 631], the judgment—affirmed on appeal—was calculated as follows: “The cost per day for the boy’s stay at Juvenile Hall from August 14 to August 29, 1963 was derived from the total cost of maintaining the Juvenile Hall divided by the population of the six months period last computed by the county auditor. It included salaries and wages of Juvenile Hall staff: superintendent, counselors, cooks, etc.; maintenance and operation; food; and probation department administrative and accounting charges.” In In re Steven S. (1981) 122 Cal.App.3d 683, 685 [176 Cal.Rptr. 195], the costs claimed by Los Angeles County—presumably on the basis of a similar accounting formula—were accumulating at a monthly rate of $2,460!
Both former section 905 and present section 903.4—in effect since September 22, 1982 (Stats. 1982, ch. 1276, § 5, p. 4712)—contain provisions limiting orders for reimbursement pursuant to section 903 to the parent’s ability to pay at the time of the attempted collection. While in most cases there may be little difference, on a dollar and cents basis, between the level of the parents’ support obligation at the time of confinement and his or her ability to meet that obligation at the time of collection, the two concepts are legally quite distinct.
The court might also have to consider whether before the commitment the juvenile was providing, in whole or in part, for his own support out of his own earnings. If so, the commitment might not relieve the parents of any financial burden.
I express no view whether the 1983 legislation referred to in footnote 1, ante, meets constitutional standards. In brief summary, the legislation: (1) amends section 202 of the Welfare and Institutions Code by adding a subdivision which declares that one of the purposes of the Juvenile Court Law is to reaffirm that, subject to financial ability, a parent must support a minor child even if the child is removed from the parent’s custody; and (2) rewrites section 903 to provide that this continuing responsibility does not include the cost of “incarceration, treatment, or supervision for the protection of society and the minor and the rehabilitation of the minor.” "
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.