MARQUEZ, J., Concurring. As noted in the majority opinion, People v. Sweeney (2009) 175 Cal.App.4th 210 [95 Cal.Rptr.3d 557] (Sweeney) requires—in addition to the statutory requirements “that the person is mentally retarded, and that he or she is a danger to himself, herself, or to others” (Welf. & Inst. Code, former § 6509; Stats. 1996, ch. 1076, § 8.5, p. 7268.)1—that mental retardation is a substantial factor in causing serious difficulty in controlling dangerous behavior. (Sweeney, supra, at p. 225.) But my review of what Sweeney and People v. Bailie (2006) 144 Cal.App.4th 841 [50 Cal.Rptr.3d 761] (Bailie) cite as precedent for this additional requirement compels me to write separately to identify a problem not raised by the parties in this case: that Bailie and Sweeney represent an unwarranted judicial extension to the mentally retarded of decisions by the Supreme Courts of California and the United States primarily involving sexually violent predators (SVPs) and former juvenile offenders who continue to be dangerous.
I will explain below that neither substantive nor procedural due process compels as a condition precedent to a section 6500 civil commitment that a person manifests a dangerous lack of self-control that results from that person’s mental retardation.2 As noted in People v. Barrett (2012) 54 Cal.4th 1081 [144 Cal.Rptr.3d 661, 281 P.3d 753] (Barrett), there are four different degrees of mental retardation, from mild to profound, and “the vast majority of persons who are mentally retarded are classified as mildly retarded [citation], although it is unclear what proportion of individuals facing commitment under section 6500 are mildly retarded.” (Id. at pp. 1130-1131 (conc. & dis. opn. of Liu, J.).) Given the broad array of persons classified as mentally retarded, I do not believe it is appropriate, nor do I believe that the Constitution requires, that a mentally retarded person lack impulse control— [110]akin to an SVP or a dangerous juvenile offender—before that person may be committed pursuant to section 6500 to receive “the custodial care, diagnosis, treatment, and protection of persons who are unable to take care of themselves and who for their own well being and the safety of others cannot be left adrift in the community.” (Cramer v. Tyars (1979) 23 Cal.3d 131, 137 [151 Cal.Rptr. 653, 588 P.2d 793].) Instead, the substantive threshold for a commitment under section 6500 should require, at a minimum, that there be an articulable nexus between an individual’s mental retardation and dangerousness, but such dangerousness need not involve a lack of self-control. To meet this threshold, a qualified expert could offer a specific and credible explanation of how an individual’s mental retardation makes him or her a danger to self or others, even if the individual does not suffer from a lack of self-control.
As yet, the Legislature has not incorporated the holding of Sweeney into the statutory scheme for the civil commitment of the mentally retarded. I urge the Legislature to consider an amendment imposing a statutorily defined causal link between mental retardation and dangerousness such as the articulable nexus test described above that would, in my view, be more appropriate for the broad array of persons classified as mentally retarded.
1. The United States Supreme Court
As described more fully below, the substantive due process holdings of the United States Supreme Court have not attempted to articulate the sine qua non for all civil commitments. For this reason, in my view, the dictum in Bailey and the holding in Sweeney are not compelled by United States Supreme Court authority. Instead, the high court has proceeded cautiously in this area and pointed out what is and is not enough to satisfy substantive due process for different kinds of civil commitments without attempting to state a bright-line test for all such commitments.
In O’Connor v. Donaldson (1975) 422 U.S. 563 [45 L.Ed.2d 396, 95 S.Ct. 2486] (O’Connor), for example, the court confronted the limited question whether substantive due process allowed for involuntary confinement on the basis of mental illness alone. The court concluded: “A finding of ‘mental illness’ alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement. Assuming that that term can be given a reasonably precise content and that the ‘mentally ill’ can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.” (Id. at p. 575.) “[A] State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” (Id. at p. 576.)
[111]In Foucha v. Louisiana (1992) 504 U.S. 71 [118 L.Ed.2d 437, 112 S.Ct. 1780] (Foucha), the court considered the other side of the O’Connor coin—a statute that authorized continued civil commitment based on current dangerousness of a person who had previously been determined to be not guilty by reason of insanity, whether or not the person remained mentally ill. (Id. at p. 73.) The court stated: “Addington v. Texas, 441 U.S. 418 [60 L.Ed.2d 323, 99 S.Ct. 1804] (1979), held that to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others.” (Id. at pp. 75-76.) “[K]eeping Foucha against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness.” (Id. at p. 78.)
Considered together, O’Connor and Foucha establish that a civil commitment cannot be based on either mental illness or dangerousness alone. Some combination of those factors is required. Those decisions did not go further to describe what kind of connection is required between those factors, but neither case held that the dangerousness must result from, or be caused by, the mental condition.
The connection between dangerousness and a mental condition was subsequently discussed by the United States Supreme Court in two cases arising from a Kansas statute which provided for the civil commitment of those it classified as SVPs. In Kansas v. Hendricks (1997) 521 U.S. 346 [138 L.Ed.2d 501, 117 S.Ct. 2072] (Hendricks), the Supreme Court of Kansas had determined as a matter of substantive due process that a person could not be civilly committed under that state’s SVP Act for “ ‘mental abnormality,’ ” because United States Supreme Court precedent, such as Foucha, required a civil commitment to be based on evidence of “ ‘mental illness.’ ” (521 U.S. at p. 356.)3 The court upheld the Kansas statute, concluding that “the Act’s definition of ‘mental abnormality’ satisfies ‘substantive’ due process requirements.” (521 U.S. at p. 356.)
To support this conclusion, the court reviewed its precedent in the following passages. “A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. [112]We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a ‘mental illness’ or ‘mental abnormality.’ [Citations.] These added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control. The Kansas Act is plainly of a kind with these other civil commitment statutes: It requires a finding of future dangerousness, and then links that finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible, for the person to control his dangerous behavior. [Citing the Kansas statute.] The precommitment requirement of a ‘mental abnormality’ or ‘personality disorder’ is consistent with the requirements of these other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.” (Hendricks, supra, 521 U.S. 346, 358.)
“To the extent that the civil commitment statutes we have considered set forth criteria relating to an individual’s inability to control his dangerousness, the Kansas Act sets forth comparable criteria and Hendricks’ condition doubtless satisfies those criteria. . . . [His] admitted lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes Hendricks from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.” (Hendricks, supra, 521 U.S. 346, 360.)
Hendricks rejected the appellant’s contention that Foucha made mental illness a prerequisite for a civil commitment, stating that the phrase “mental illness” had no “talismanic significance,” considering that psychiatrists frequently disagreed about its parameters. (Hendricks, supra, 521 U.S. at p. 359.) “[W]e have never required state legislatures to adopt any particular nomenclature in drafting civil commitment statutes. Rather, we have traditionally left to legislators the task of defining terms of a medical nature that have legal significance.” (Ibid.)
Five years later, in Kansas v. Crane (2002) 534 U.S. 407 [151 L.Ed.2d 856, 122 S.Ct. 867] (Crane), the court clarified its decision in Hendricks. It reviewed a decision by the Kansas Supreme Court that interpreted Hendricks as requiring a finding prior to civil commitment that an SVP be completely unable to control his or her behavior. (Id. at p. 411.) The court rejected that interpretation and vacated the Kansas Supreme Court’s judgment. (Id. at p. 415.) It said, “We agree with Kansas insofar as it argues that Hendricks set forth no requirement of total or complete lack of control. Hendricks referred to the Kansas Act as requiring a ‘mental abnormality’ or ‘personality disorder’ that makes it ‘difficult, if not impossible, for the [dangerous] person to control his dangerous behavior.’ 521 U.S., at 358 (emphasis added).” (Crane, [113]supra, 534 U.S. at p. 411.) “We do not agree with the State, however, insofar as it seeks to claim that the Constitution permits commitment of the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination.” (Id. at p. 412.) “[W]e recognize that in cases where lack of control is at issue, ‘inability to control behavior’ will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior.” (Id. at p. 413.)
There are several indications in Hendricks and Crane that those decisions were not intended to identify the minimum requirements of substantive due process for all civil commitments.
The Kansas statute in Hendricks defined a committable mental abnormality as affecting either a person’s “emotional or volitional capacity” in a specified way. (Hendricks, supra, 521 U.S. 346, 352.) Crane noted that Hendricks “limited its discussion to volitional disabilities” and did not address that part of the Kansas statute that authorizes civil commitment for an emotional impairment that does not affect volition. (Crane, supra, 534 U.S. 407, 414.) Crane explained that Leroy Hendricks suffered from “pedophilia—a mental abnormality that critically involves what a lay person might describe as a lack of control.” (Ibid.) “[C]ivil commitment of dangerous sexual offenders will normally involve individuals who find it particularly difficult to control their behavior—in the general sense described above.” (Ibid., italics added.)
Crane further observed that Hendricks made no clear distinction between emotional and volitional impairments. “[A]s in other areas of psychiatry, there may be ‘considerable overlap between a . . . defective understanding or appreciation and . . . [an] ability to control . . . behavior,’ ” and the United States Supreme Court has not ordinarily distinguished “for constitutional purposes among volitional, emotional, and cognitive impairments.” (Crane, supra, 534 U.S. 407, 415.) As the court in Hendricks “had no occasion to consider whether confinement based solely on ‘emotional’ abnormality would be constitutional,” Crane did not reach that issue either. (Ibid.) Thus, neither Hendricks nor Crane invalidated the part of the Kansas statute that addressed emotional impairments. More importantly, they did not consider cognitive impairments.
There is language in Hendricks that appears to suggest what kind of connection must be made between an individual’s mental condition and dangerousness to satisfy the requirements of substantive due process. The court described itself as upholding other statutes “when they have coupled proof of dangerousness with the proof of some additional factor, such as a ‘mental illness’ or ‘mental abnormality.’ ” (Hendricks, supra, 521 U.S. 346, 358, italics added.) The Kansas statute required “a finding of future dangerousness, and then links that finding to the existence of a ‘mental abnormality’ [114]or ‘personality disorder’ that makes it difficult, if not impossible, for the person to control his dangerous behavior.” (521 U.S. at p. 358, italics added.)
The Kansas statute at issue did not merely couple or link proof of dangerousness with proof of a mental condition. Instead, the statute included the person’s dangerousness within its definition of the kind of mental condition justifying a civil commitment. As quoted above, the condition justifying commitment under that statute is a mental abnormality or personality disorder with the singular aspect of an inclination to commit violent sex offenses. In light of this statutory language, proof that a person has the statutorily defined mental condition also proves that he or she is dangerous. Because the very existence of the mental condition is what makes the person dangerous under the Kansas statute, it was unnecessary for the United States Supreme Court in Hendricks or Crane to decide whether a more attenuated connection between a person’s mental condition and dangerousness would also satisfy due process.
In Hendricks, the court concluded that the Kansas statute satisfied substantive due process in defining the circumstances justifying the civil commitment of an SVP, namely a dangerous lack of control over an inclination to commit sexually violent offenses. But in finding that the Kansas statute, had surpassed the threshold, the court did not identify that formulation as the sine qua non for all civil commitments.
2. The California Supreme Court
The California Supreme Court has extended the holdings of Hendricks and Crane to another kind of civil commitment not involving SVPs— commitments of former juvenile offenders who continue to be dangerous. But in doing so, the court has not held that a dangerous lack of self-control is the minimum requirement of substantive due process for all civil commitments.
Hendricks and Crane initially guided the California Supreme Court in evaluating challenges to California’s own SVP statutes (§ 6600 et seq.), which authorize the civil commitment of sexually violent predators.4 In Hubbart v. Superior Court (1999) 19 Cal.4th 1138 [81 Cal.Rptr.2d 492, 969 [115]P.2d 584] (Hubbart), which was decided before Crane, the court rejected challenges to California’s SVP Act on several grounds, including substantive due process. The court essentially concluded that California’s statute was sufficiently similar to the Kansas statute upheld in Hendricks. (19 Cal.4th at p. 1157.)
In People v. Williams (2003) 31 Cal.4th 757 [3 Cal.Rptr.3d 684, 74 P.3d 779] (Williams), the court confronted a question of procedural due process: whether a jury in an SVP proceeding after Crane must be instructed to find that the person has serious difficulty in controlling his or her behavior. (Id. at pp. 779-780.) Williams concluded that “Kansas v. Crane, supra, 534 U.S. 407, does not compel us to hold that further lack-of-control instructions or findings are necessary to support a commitment under the SVPA.” (Id. at pp. 774-775.) The court reasoned that Hendricks and Hubbart both recognized that “states have considerable leeway in describing and defining the necessary link between a control-impairing disorder and a prediction of future dangerousness . . . .” (Id. at p. 769.) Each opinion found the statutory language adequate without reading new elements or requirements into the statutory scheme. (Id. at pp. 768-769.)5
Then, in 2005, in In re Howard N. (2005) 35 Cal.4th 117 [24 Cal.Rptr.3d 866, 106 P.3d 305] (Howard N.), the court considered the application of Hendricks and Crane to extended civil commitments of former juvenile offenders who continue to be dangerous. At issue in Howard N. was a question of procedural due process, whether the Extended Detention Act (former § 1800 et seq.) “violates due process because it does not expressly require a finding that the person’s mental deficiency, disorder, or abnormality causes serious difficulty in controlling behavior.” (Howard N., supra, 35 Cal.4th 117, 122, fn. omitted.) That statute authorized extending the commitment of former juvenile offenders otherwise subject to discharge from the custody of the former Youth Authority (now Division of Juvenile Facilities) if the fact finder affirmatively answered “the following statutory question: ‘Is the person physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality?’ (§ 1801.5.)” (Id. at p. 126, fn. omitted.).
In Howard N., the court noted that “[a] recent series of cases both in the United State Supreme Court and in this court has clarified that to be involuntarily civilly committed as a sexually violent predator, the person must, as a result of mental illness, have serious difficulty controlling his dangerous behavior. (Kansas v. Crane[, supra,] 534 U.S. 407, 412-413 . . . ; [116]Hendricks, supra, 521 U.S. at pp. 358, 360; People v. Williams[, supra,] 31 Cal.4th 757, 759, 772, 774 . . . ; Hubbart, supra, 19 Cal.4th at pp. 1156, 1158.)” (Howard N., supra, 35 Cal.4th at p. 128.) Recognizing that Hendricks and Crane involved an SVP statute, the court observed that “nothing in the language of these high court cases indicates that the lack of control requirement is limited to the sexually violent predator context. Indeed, it is difficult to imagine on what basis the high court could articulate different due process standards for the civil commitment of dangerous mentally ill persons who happen to be sexually violent predators than for those dangerous mentally ill persons who are not sexually violent predators. Thus, while the high court performed its due process analysis in the sexually violent predator context, its constitutional pronouncements are instructive here” (id. at p. 131), where the court was considering the extended civil commitment of a former juvenile offender who continued to be dangerous.
Perhaps in view of that precedent, the Attorney General conceded in Howard N. “that to be constitutional, the extended detention scheme [for former juvenile offenders] must contain a requirement of serious difficulty in controlling dangerous behavior, in order to distinguish those persons who are subject to civil commitment from those persons more properly dealt with by the criminal law.” (Howard N., supra, 35 Cal.4th 117, 132.) The court agreed and held that procedural due process requires an express finding of a dangerous lack of self-control to justify extending a former juvenile offender’s commitment under section 1800. (35 Cal.4th at pp. 122, 132-133.) The court also held that this requirement should be read into the statute. (Id. at p. 135.) Further, in a dictum, the court said that “[t]his aspect of the person’s condition must be alleged in the petition for extended commitment (§ 1800), and demonstrated at the probable cause hearing (§ 1801) and any ensuing trial (§ 1801.5).” (Ibid.)6
Though Williams had earlier concluded that no explicit finding of a dangerous lack of self-control was necessary to justify the civil commitment of an SVP, Howard N. concluded that there must be such an explicit finding to justify extending the commitment of a former juvenile offender who continues to be dangerous under former section 1800.
Two years after Howard N., the court gave further consideration to what is constitutionally required to justify extending the commitments of former juvenile offenders who continue to be dangerous. In In re Lemanuel C. (2007) 41 Cal.4th 33 [58 Cal.Rptr.3d 597, 158 P.3d 148] (Lemanuel C), it considered “defendant’s claim that his civil commitment under section 1800 is [117]unconstitutional because the petition did not allege, and the trial court did not specifically find, ‘a serious and well-founded risk’ that he ‘would reoffend’ if not committed.” (Id. at pp. 37-38.) In rejecting this claim, which was based on both due process and equal protection grounds, the court explained that “the ‘serious and well-founded risk of reoffense’ language found in some SVP cases and reflected in CALCRIM No. 3454 simply explains the ‘likely to engage in sexually violent predatory criminal behavior’ component of the future dangerousness finding required for an SVP commitment.” (Id. at p. 46.) “[D]ue process is satisfied because section 1800 requires a finding of a mental disorder resulting in dangerousness, and it properly links that finding to a second required finding that the mental disorder causes the inability to control dangerous behavior.” (Id. at p. 45.)
With respect to equal protection, the court determined that dangerous juvenile offenders are not similarly situated with SVPs or mentally disordered offenders (MDOs). “The fact that Youth Authority wards committed under section 1800 and adults committed as SVP’s or MDO’s are considered dangerous due to mental disorders and therefore are subject to commitment for treatment and the protection of the public does not lead to the conclusion that ‘persons committed under California’s various civil commitment statutes are similarly situated in all respects. They are not.’ [Citation.] Although section 1800 is a civil commitment statute, as are the SVPA and the MDOA, the Legislature enacted the adult civil commitment statutes with different purposes in mind than the purpose of the section 1800 extended detention scheme challenged here.” (Lemanuel C., supra, 41 Cal.4th 33, 48.)
More recently, the court in Barrett, supra, 54 Cal.4th 1081 determined that procedural due process does not require either judicial advice to the mentally retarded about their right to a jury trial or a personal waiver of that right, even though such a right is statutorily conferred by section 5302, part of the Lanterman-Petris-Short (LPS) Act (§ 5000 et seq.), on a person who is “gravely disabled” due to a mental illness. Barrett also explained why the mentally retarded are not similarly situated with potential LPS Act committees. The court reasoned that, on the one hand, mental illness and related disorders do not necessarily preclude a person from functioning in a competent manner. “By contrast, in the case of persons alleged to be mentally retarded and dangerous under section 6500, the commitment process itself raises substantial doubts about their cognitive and intellectual functioning sufficient to limit the personal and procedural role they play. It follows that the two groups are not similarly situated as to the function that ... an advisement like section 5302 serves-—comprehending and controlling the decision whether to request a jury trial.” (Barrett, supra, 54 Cal.4th 1081, 1109.)
[118]In summary, though the court in Howard N. did not distinguish dangerous juvenile offenders from SVPs for purposes of requiring a finding of a dangerous lack of self-control (Howard N., supra, 35 Cal.4th 117, 128), two years later the court articulated significant differences between such offenders in Lemanuel C. (.Lemanuel C., supra, 41 Cal.4th 33, 48.) And in 2012, the court articulated differences between the mentally retarded and those subject to LPS Act commitments and determined that procedural due process does not require the same kinds of judicial advice about the right to jury trial.
3. The Relevance of a Dangerous Lack of Self-control
A sexually violent predator, by statutory definition, poses a danger to others because not only does he have a mental condition or disorder that predisposes him to commit violent sex crimes, he has already acted on that inclination. A serious difficulty in controlling such an impulse, in other words, a dangerous lack of self-control, is the very essence of the committable condition, as it is that lack of self-control that makes the predator dangerous. For substantive due process to require a showing of dangerous lack of self-control ensures “that the nature of [the] commitment bear[s] some reasonable relation to the purpose for which the individual is committed.” (Foucha, supra,,504 U.S. 71, 79.)
There are a number of other kinds of civil commitments: “Most of California’s civil commitment statutes apply to persons who have been accused or convicted of a crime. (See §§ 1800 et seq. [mentally disordered offenders discharged by juvenile authorities], 3000 et seq. [narcotics addicts], 6600 et seq. [sexually violent predators]; Pen. Code, §§ 1026-1027 [defendants acquitted by reason of insanity]; Pen. Code, § 1367 [defendants found mentally incompetent]; Pen. Code, § 2960 et seq. [mentally disordered offenders].) Only two involuntary commitment schemes—the Lanterman-PetrisShort Act (§ 5300 et seq.) and section 6500—authorize the state to assert prolonged custody over individuals through proceedings completely separate from the juvenile and criminal justice systems. Section 5300 authorizes the commitment of certain mentally ill persons for 180 days upon a finding of dangerousness. Section 6500 authorizes a renewable one-year commitment for persons found to be mentally retarded and dangerous. Neither statute requires the state to show or charge criminal conduct.” (Barrett, supra, 54 Cal.4th 1081, 1118 (conc. & dis. opn. of Liu, J.).)
The California Supreme Court has previously observed that a commitment proceeding under section 6500 “is not initiated in response, or necessarily related, to any criminal acts; it is of limited duration, expiring at the end of one year and any new petition is subject to the same procedures as an original commitment .... The sole state interest, legislatively expressed, is the [119]custodial care, diagnosis, treatment, and protection of persons who are unable to take care of themselves and who for their own well being and the safety of others cannot be left adrift in the community.” (Cramer v. Tyars, supra, 23 Cal.3d 131, 137.) The California Supreme Court found these observations equally true of conservatorship proceedings under the LPS Act. (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1015 [36 Cal.Rptr.2d 40, 884 P.2d 988].)
In addition to the prior criminality that is prerequisite to other kinds of commitment proceedings, the LPS Act and former section 6500 are distinguishable from other civil commitment schemes for another important reason. As noted above, statutes authorizing civil commitment, of sexually violent predators are concerned solely with potential danger to the public, not to the predator.7 Protecting the public is the objective of the SVP Act. (In re Smith (2008) 42 Cal.4th 1251, 1262 [73 Cal.Rptr.3d 469, 178 P.3d 446].) This is also a focus of some other civil commitment statutes. (E.g., § 1800 [extended commitment of Youth Authority inmate “physically dangerous to the public”]; former § 6300 [a “ ‘mentally disordered sex offender’ ” (MDSO) is “dangerous to the health and safety of others”]; former § 6316.2 [extended commitment of MDSO who “presents a substantial danger of bodily harm to others”].)
Proceedings for the commitment of the mentally retarded under section 6500 or for the commitment of the mentally ill under the LPS Act, on the other hand, are not solely concerned with protecting the public. To be sure, danger to others remains a consideration under those statutes (e.g., §§ 6506, 5304), but an equally important objective is to offer protection to those who are a danger to themselves. (§ 5150; former § 6509.)
When an underlying objective of a statutory scheme is to allow the government to protect persons with a mental or physical disability who are a danger to themselves, requiring evidence of a dangerous lack of self-control operates to exclude those individuals from the protections the Legislature sought to grant them. In other words, the inability to control an impulse to commit a violent sexual offense may provide a constitutional justification for a civil commitment of a person as an SVP. But a lack of self-control is an inapt test for determining what makes a person’s mental retardation a [120]condition that justifies an involuntary civil commitment for the protection of one’s self. The facts of this case illustrate this point.
Ronald’s dangerous behaviors—endangering himself by walking into traffic while raising his hands, calling the police with burglary reports and endangering others by leaving his medications on his neighbor’s doorstep— were explained as resulting from paranoia and delusions. Delusions may precipitate all kinds of self-endangering behavior. But it makes little sense to require a fact finder to determine whether Ronald’s delusions involve a dangerous lack of self-control. Is a delusional person expected to exercise self-control in not acting on delusions or in not having them in the first place? While lack of self-control may be an essential element of some mental conditions that place the public in danger due to prior or attendant criminal conduct, it appears irrelevant to others.
In the LPS context, the Third District Court of Appeal has recognized the limitations of the lack of self-control test. In Conservatorship of Carol K. (2010) 188 Cal.App.4th 123 [115 Cal.Rptr.3d 343] (Carol K.), the court stated: “Here, we consider whether Carol is gravely disabled under the LPS Act, not whether Carol was dangerous to the public. The LPS Act and the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.) are different statutory schemes with different purposes and provisions. The Sexually Violent Predators Act scheme provides greater procedural safeguards. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253-254 [127 Cal.Rptr.2d 177, 57 P.3d 654].) The requirements imposed under Howard N. are directed at the involuntary civil commitment of individuals who are unable to control their behavior and pose a danger to the public. (Howard N., supra, 35 Cal.4th at p. 128.) Nothing in Howard N. supports Carol’s conclusion that these requirements apply to the LPS Act.” (Carol K., supra, 188 Cal.App.4th at p. 137.) The same should hold true for commitments of the mentally retarded under section 6500.
4. Conclusion
Precedent has established that substantive due process is satisfied when the civil commitment of an SVP or a former juvenile offender who continues to be dangerous is premised on evidence of the person’s dangerous lack of self-control. But there are good reasons not to extend this precedent to the different kinds and degrees of danger presented by individuals who are dangerous to themselves by virtue of their mental retardation. An unreasonably high threshold may deprive some of these individuals of helpful government services the Legislature intended to grant to them.
In my view, a civil commitment under former section 6500 would satisfy substantive due process so long as a qualified expert offers a specific and [121]credible explanation of how a person’s mental retardation makes him or her a danger to self or others. This would require, at a minimum, an articulated nexus between the person’s mental retardation and dangerousness. The danger may involve a lack of self-control or other types of danger, such as an inability to perceive threats or an inability to care for oneself. This threshold, which is different from and lower than that of Bailie and Sweeney, was not met in this case and would require reversal if applied here.
On January 29, 2013, the opinion was modified to read as printed above.
Unspecified section references in this concurring opinion are to the Welfare and Institutions Code.
“In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” (Zinermon v. Burch (1990) 494 U.S. 113, 125 [108 L.Ed.2d 100, 110 S.Ct. 975].) In contrast, substantive due process is not concerned with the procedure involved (cf. Washington v. Harper (1990) 494 U.S. 210, 220 [108 L.Ed.2d 178, 110 S.Ct. 1028]), but with more fundamental questions, namely, does the asserted right qualify for constitutional protection as an aspect of life, liberty, or property (cf. Youngberg v. Romeo (1982) 457 U.S. 307, 317-319 [73 L.Ed.2d 28, 102 S.Ct. 2452]), and under what circumstances is governmental deprivation justified. (Cf. id. at pp. 319-321; Zinermon v. Burch, supra, 494 U.S. at p. 125.)
The Kansas statute defined “ ‘sexually violent predator’ ” as a person previously convicted of or charged with a sexually violent offense and “ ‘who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence’ ” and defined “ ‘mental abnormality’ ” as a “ ‘condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.’ ” (Hendricks, supra, 521 U.S. 346, 352.)
Section 6600 provides: “ ‘Sexually violent predator’ means a person who has been convicted of a sexually violent offense against one or more victims and who 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).) “ ‘Diagnosed mental disorder’ includes 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.” (§ 6600, subd. (c).)
The majority view of SVP acts in other jurisdictions is that no jury instruction on the lack of self-control is required. (Richard S. v. Carpinello (2nd Cir. 2009) 589 F.3d 75, 83-84, and cases there cited.)
The Legislature promptly amended Section 1800 following the Howard N. decision in February 2005 to expressly add the language implied by Howard N. (Stats. 2005, ch. 110, § 1, p. 1884; eff. July 21, 2005.)
In one passage, Hendricks stated, “The challenged Act unambiguously requires a finding of dangerousness either to one’s self or to others as a prerequisite to involuntary confinement.” (Hendricks, supra, 521 U.S. 346, 357.) But the kind of dangerousness described in the statute was “ ‘a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.’ ” (Ibid., quoting the Kansas statute.) Thus, the statute’s sole concern was a person’s likely commission of sexual offenses against others, not self-endangerment.