Sorenson v. Superior Court (219 Cal. App. 4th 409, 2013)

Opinion

MÁRQUEZ, J.

The County of Monterey in two separate proceedings sought to involuntarily commit petitioner Christopher Sorenson, pursuant to the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.; LPS Act or Act). These Lanterman-Petris-Short (LPS) conservatorship proceedings resulted in two jury trials, occurring in June and November 2011, to determine whether Sorenson was gravely disabled due to mental illness within the meaning of the LPS Act. Sorenson was not involuntarily conserved.

Sorenson was subsequently charged with the murder of his mother, her death occurring just eight days after the conclusion of the second LPS trial. The Monterey County District Attorney, on behalf of the People, made an informal request to the court reporter for copies of the reporter’s transcripts of the two LPS jury trials as an aid to the prosecution of the charged crime. Additionally, a local newspaper, The Salinas Californian (The Californian), requested that the court clerk give it access to the entire files from those two LPS proceedings. The presiding judge of the superior court denied both requests in separate minute orders, reasoning that the court files were confidential under the Act. The People then filed a formal motion for an order granting access to copies of the reporter’s transcripts of the two LPS jury trials. One week later, a second local newspaper, The Monterey County Herald (The Herald), filed a motion requesting that the court grant it access to the court files of eight LPS proceedings involving Sorenson. The Herald’s motion was later joined by The Californian. After briefing and a hearing, a different superior court judge—assigned by the presiding judge to hear all matters pertaining to Sorenson, including the pending requests by the People and the media—granted the People, the media, and Sorenson access to the reporter’s transcripts of the two LPS jury trials. Sorenson challenges that order by this petition for writ of mandate.

Very significant, competing interests are claimed by the parties. Sorenson claims that the release of the trial transcripts would violate (1) section 5118, which (he claims) makes LPS trials presumptively nonpublic, (2) his right to confidentiality under section 5328 of the Act, (3) his constitutional right to privacy, and (4) his confidentiality rights under the psychotherapist-patient privilege. The People and the media claim a First Amendment right of public access to the LPS trial transcripts, because such a constitutional right exists for all “ordinary civil trials and proceedings.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1212 [86 Cal.Rptr.2d 778, 980 P.2d 337] (NBC Subsidiary).) They also claim a statutory right of access under Code of Civil Procedure section 124, which provides that, absent express statutory exceptions, “the sittings of every court shall be public”; they contend that Welfare and Institutions Code section 5118 is not such a statutory exception.

We conclude that the court erred in granting the People and the media access to the transcripts from Sorenson’s two LPS jury trials. In so holding, we conclude that involuntary conservatorship proceedings under the LPS Act are not “ordinary civil trials and proceedings” (NBC Subsidiary, supra, 20 Cal.4th at p. 1212) that are presumptively public. Rather, they are special proceedings. But they are not special proceedings for which there is a qualified First Amendment right of public access. There is not such a tradition of openness or utility associated with having the proceedings public to support a finding of a constitutional right of access. Furthermore, Welfare and Institutions Code section 5118 makes LPS jury trials presumptively nonpublic, thereby constituting a statutory exception to Code of Civil Procedure section 124’s general requirement that such “sittings ... be public.” We hold that the superior court erred in concluding that, notwithstanding that LPS jury trials are presumptively nonpublic, the parties by their conduct “were deemed to have ‘requested’ [under section 5118] that the hearings be public.” We will therefore grant the petition for writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

The People are prosecuting Sorenson for murder in Monterey Superior Court case No. SS112361. On December 21, 2011, a reporter from The Californian made a written request by two-sentence letter to the respondent superior court “to view and/or make copies of the case files” in two LPS proceedings involving Sorenson (cases Nos. MH004654 & MH005129). The reporter indicated that the request was made because “there may be information in those documents that is the public’s right to know.” At or about the same time, the People, through the Monterey County District Attorney’s Office, made an informal request to the court reporter for copies of the jury trial transcripts in those two proceedings. The court (Presiding Judge Timothy Roberts) denied the two requests by separate orders dated January 18, 2012, observing that LPS conservatorship hearings and their associated court files were “deemed confidential.”

On February 1, 2012, the People filed a pleading captioned “request for reconsideration of order denying request for transcripts of jury trial.” (Capitalization omitted.) In that motion, the People requested that the court “allow [them] to inspect the records of Mr. Sorenson’s [LPS conservatorship] trials, and to obtain the trial transcripts at [their] cost.” One week later, The Herald filed a motion (labeled “petition”) to examine the sealed-records files of eight LPS proceedings involving Sorenson—the two proceedings identified in The Californian’s prior letter request (cases Nos. MH004654 & MH005129), along with six other identified cases. A declaration and memorandum of points and authorities were attached to The Herald’s motion.

On March 19, 2012, a different superior court judge (Judge Mark E. Hood) set a hearing on the People’s and The Herald’s motions, identifying five legal issues for consideration. According to Judge Hood’s subsequent order, Presiding Judge Roberts had “specially assigned these matters ... for review of issues pertaining to requests to access any information contained in the above-referenced [LPS] cases and for reconsideration of any of his prior rulings.” Further briefs were submitted on behalf of the People, The Herald, and Sorenson. The Herald indicated in its brief that it was seeking an order (1) unsealing the transcripts of Sorenson’s two LPS jury trials, (2) unsealing all of the records of eight enumerated mental health proceedings involving Sorenson, and (3) “correcting the systematic and automatic sealing of all records relating to LPS Act proceedings.”

After hearing argument and taking the matter under submission, the court entered an order on May 2, 2012, granting the People, the media, and Sorenson access to copies of the reporter’s transcripts of the jury trials conducted in two LPS proceedings involving Sorenson (cases Nos. MH005082 & MH005129). In so ruling, the court held that hearings under the LPS Act are nonpublic unless either party requests a public hearing; neither party requested a public hearing in either of the LPS trials in controversy; the record indicated that the trials proceeded as public hearings without objection by either party; and therefore the parties by their conduct were “deemed to have ‘requested’ that the hearings be public” under section 5118. The court also denied the media’s request for “access to all files and records associated with [Sorenson’s] LPS Act proceedings,” concluding that the files and information were confidential and not discoverable under section 5328. The court issued a 15-day temporary stay of its order.

On May 16, 2012, Sorenson filed a petition for writ of mandate or prohibition and a request for temporary stay with this court. On the same date, we granted a temporary stay of respondent court’s order and invited real parties in interest to submit preliminary opposition to the petition. After receiving the People’s preliminary opposition and Sorenson’s reply, we issued an order directing respondent court to show cause why a peremptory writ of mandate should not issue as requested in the petition. The People filed a return to the petition, and Sorenson filed a formal reply.

DISCUSSION

I. Request for Dismissal and Mootness

On April 26, 2013, after briefing was concluded, Sorenson filed, by one-sentence letter, a request that the court dismiss his petition. The language of the letter was uninformative, and vaguely referenced exhibits attached to the People’s prior motion to dismiss, which dismissal motion this court denied without prejudice. But the apparent basis for Sorenson’s request was that he had entered a change of plea in February 2013 and pleaded not guilty by reason of insanity, and thereafter had signed a document indicating that he “conditionally waive[d] any privacy rights to the transcripts of [the LPS trials],” as well as privacy rights to any reports generated by doctors who may have evaluated him in connection with the two LPS trials. Sorenson acknowledged in this conditional waiver that he understood that the parties who received the reports and transcripts would be subject to a court protective order preventing disclosure of the materials to others.

We denied Sorenson’s request for dismissal because this case presents issues of continuing public interest, including the scope of the First Amendment right of public access to judicial proceedings, and whether LPS proceedings, including trials, are made presumptively nonpublic by statute. (See Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8 [31 Cal.Rptr.2d 776, 875 P.2d 1279] [court may decline dismissal of moot case “where the appeal raises issues of continuing public importance”]; Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 746-747 [29 Cal.Rptr.2d 804, 872 P.2d 143] [court, regardless of mootness, may decide case involving “ ‘matter[s] of continuing public interest . . . likely to recur’ ”].) Additionally, while the postpetition developments alluded to in Sorenson’s dismissal request may meet the needs of the People and Sorenson insofar as the trial court’s order granting them access to the LPS jury trial transcripts is concerned, it does not render the controversy moot. Were we to permit dismissal of the petition, The Herald and The Californian would also be entitled to receive copies of the two LPS jury trial transcripts by virtue of the challenged order, an order we will conclude to have been erroneous. We have therefore exercised our discretion to deny Sorenson’s request for dismissal and will decide the controversy raised by the petition. (See Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1014 [10 Cal.Rptr.3d 865] [court, despite parties’ settlement of case after briefing and argument, may elect to decide merits of controversy involving matter of continuing public interest].)

II. Propriety of May 2, 2012 Order in Light of Court’s Prior Orders

During oral argument, we raised a procedural question concerning the propriety of the May 2, 2012 order of Judge Hood, given the fact that Presiding Judge Roberts, approximately four months earlier, had issued two orders seemingly addressing the same or similar issues concerning access to the transcripts of Sorenson’s LPS trials. Specifically, we asked counsel whether Judge Hood had the authority to grant the People, the media, and Sorenson access to the transcripts in light of Presiding Judge Roberts’s prior orders denying The Californian’s and the People’s requests for access to two of Sorenson’s LPS files and the reporter’s transcripts, respectively. This court requested supplemental briefing, which it subsequently received from Sorenson, the People, and The Herald. Upon consideration of the issue, we conclude that Judge Hood had the authority to issue the May 2, 2012 order, and we may therefore consider the merits of Sorenson’s petition.

At the time The Herald filed its formal motion in February 2012, the court had not acted on The Herald’s request for access to sealed LPS files pertaining to Sorenson. The then existing orders of Presiding Judge Roberts pertained to the People’s informal request to a court reporter and The Californian’s letter request to the clerk. The Herald’s formal, six-page motion contained a declaration and a memorandum explaining in detail its legal position, including a citation to NBC Subsidiary, supra, 20 Cal.4th 1178. Further, the relief sought by The Herald in its motion and in supplemental memoranda was significantly broader than that requested previously by either The Californian or the People: The Herald requested the unsealing of eight LPS files involving Sorenson, an unsealing of the transcripts of Sorenson’s two LPS jury trials, and an administrative order “correcting the systematic and automatic sealing of all records relating to LPS Act proceedings.” The Herald’s motion thus stood in stark contrast to The Californian’s prior, two-sentence letter request to the clerk seeking to inspect or copy two of Sorenson’s LPS files because they might contain “information . . . that is the public’s right to know.” Because The Herald’s motion involved a request for access to court files and an order unsealing all LPS files made by an entity not involved in any prior proceedings that prompted the issuance of Presiding Judge Roberts’s prior orders, those orders did not act as an impediment to Judge Hood’s subsequent action on The Herald’s motion.

With respect to the court’s internal reassignment of the motions to Judge Hood, we are mindful of the limitations involved in one judge, by subsequent order, nullifying a prior ruling by another judge of the same superior court. (See In re Alberto (2002) 102 Cal.App.4th 421, 426^28 [125 Cal.Rptr.2d 526].) But the rationale behind the general rule limiting the power of the former judge under those circumstances—(1) discouraging “ ‘forum shopping’ ” by the parties, and (2) preventing the later-ruling judge from becoming “a one-judge appellate court” (id. at p. 427)—do not pertain to this case. The orders denying access to the People and The Californian made by Presiding Judge Roberts were not the result of a motion process involving submission of formal requests to the court upon noticed motions supported by appropriate points and authorities and declarations. (See Code Civ. Proc., §§ 1003 [“application for an order is a motion”], 1005.5 [“motion upon all the grounds stated in the written notice thereof is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion, but this shall not deprive a party of a hearing of the motion to which he is otherwise entitled”].) Rather, the orders were prompted by the People’s informal (perhaps oral) request to the court reporter, and The Californian’s two-sentence letter to the court clerk. Since neither the People nor The Californian had submitted a prior application that resulted in the initial January 2012 orders of Presiding Judge Roberts—and The Herald had made no access request at all—Judge Hood, after reassignment to him of the motions requesting access, was not precluded from ruling on those motions.

Presiding Judge Roberts’s reassignment of these matters to Judge Hood, who was presiding over the criminal proceedings pending against Sorenson, was also authorized by statute and court rule. Under Government Code section 69508, subdivision (a), “the presiding judge shall distribute the business of the court among the judges, and prescribe the order of business.” “Assignments of the ‘business’ of the court among judges of the court is wholly discretionary.” (Anderson v. Phillips (1975) 13 Cal.3d 733, 737 [119 Cal.Rptr. 879, 532 P.2d 1247].) Rule 10.603 of the California Rules of Court delineates the authority vested in the presiding judge with respect to judicial assignments, providing that the presiding judge “has ultimate authority to make judicial assignments.” (Cal. Rules of Court, rule 10.603(c)(1).) “Rule 10.603(b)(1)(A) and (B) authorizes the presiding judge to ‘[a]ssign judges to departments,’ ‘designate supervising judges for divisions,’ and ‘[apportion the business of the court, including assigning and reassigning cases to departments.’ Rule 10.603(c)(1)(D) directs the presiding judge to ‘[Reassign cases between departments as convenience or necessity requires.’ Rule 10.603(d) permits the presiding judge to delegate any of the duties listed in the rule to another judge.” (Alvarez v. Superior Court (2010) 183 Cal.App.4th 969, 978 [107 Cal.Rptr.3d 671].)

Moreover, Judge Hood was empowered to decide the applications for access because they involved claimed public access rights under the First Amendment. As noted by the court in In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1575 [113 Cal.Rptr.3d 629] (cited by both the People and The Herald), “Since orders to seal court records implicate the public’s right of access under the First Amendment, they inherently are subject to ongoing judicial scrutiny, including at the trial court level.” In Marriage of Nicholas, the court rejected the appellant’s jurisdictional challenge to a sealing order (the eighth in a succession of orders) based upon its having been entered by a different judge from the one who issued the prior sealing order of which the appellant was the proponent. (Id. at pp. 1574—1578.) The court came to this conclusion based upon, inter alia, the above quoted principle and the fact that rule 2.551(h) of the California Rules of Court expressly authorizes the court to unseal its records upon the request of any person, whether a party to the litigation or not (Marriage of Nicholas, at p. 1577).

The reassignment of the motions to Judge Hood was a proper exercise of the presiding judge’s discretion. Judge Hood was therefore authorized to entertain the People’s and The Herald’s motions for access to Sorenson’s LPS files. Accordingly, we reject Sorenson’s claim that Judge Hood did “not possess the legal authority to issue a superceding [sic] order overruling Judge Roberts’[s] original order.”

III. Contentions of the Parties

Sorenson acknowledges that under our high court’s decision in NBC Subsidiary, supra, 20 Cal.4th 1178 and Code of Civil Procedure section 124, court records are presumptively open to the public. But he argues that, the presumption of openness notwithstanding, LPS proceedings are nonpublic. He contends that LPS proceedings are “unique” and are “especially designed to help encourage mental health treatment, protect the public, safeguard the rights of mental health patients, and encourage persons with mental health problems to seek treatment on a voluntary basis. [Citations.]” He asserts that section 5118 creates a presumption that LPS proceedings are nonpublic, insofar as that statute provides that any party to them may demand that a hearing be public. And he argues that the court erred when it found, based upon inadmissible hearsay, that the parties were “deemed to have ‘requested’ that the hearings be public” under section 5118.

The People respond that, although the trial court’s reasoning may have been incorrect, it reached the correct result in permitting access to the LPS trial transcripts. They (along with The Herald) argue that, pursuant to both the First Amendment (NBC Subsidiary, supra, 20 Cal.4th at p. 1212) and statute (Code Civ. Proc., § 124), there is a public right of access to LPS jury trials. And they assert that there is no statutory language creating a presumption that LPS proceedings are nonpublic. They contend, in essence, that had the Legislature wished to make LPS jury trials confidential, it could have easily done so. Instead, the language of section 5350, giving a proposed conservatee the right to demand a jury, says nothing about confidentiality. And they contend that section 5118 cannot be read as requiring that LPS jury trials be nonpublic. Therefore, they argue, the trial court correctly granted their request for copies of the trial transcripts.

IV. The LPS Act

The Legislature enacted the LPS Act in 1967. (See Stats. 1967, ch. 1667, § 36, p. 4074.) Included among the goals of the Act are “ending the inappropriate and indefinite commitment of the mentally ill, providing prompt evaluation and treatment of persons with serious mental disorders, guaranteeing and protecting public safety, safeguarding the rights of the involuntarily committed through judicial review, and providing individualized treatment, supervision and placement services for the gravely disabled by means of a conservatorship program. (§ 5001.) The act limits involuntary commitment to successive periods of increasingly longer duration, beginning with a 72-hour detention for evaluation and treatment (§ 5150), which may be extended by certification for 14 days of intensive treatment (§ 5250). That initial period may be extended for an additional 14 days if the person detained is suicidal. (§ 5260.) In those counties that have elected to do so, the 14-day certification may be extended for an additional 30-day period for further intensive treatment. (§ 5270.15.) Persons found to be imminently dangerous may be involuntarily committed for up to 180 days beyond the 14-day period. (§ 5300.) After the initial 72-hour detention, the 14-day and 30-day commitments each require a certification hearing before an appointed hearing officer to determine probable cause for confinement unless the detainee has filed a petition for the writ of habeas corpus. (§§ 5256, 5256.1, 5262, 5270.15, 5275, 5276.) A 180-day commitment requires a superior court order. (§ 5301.)” (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1009 [36 Cal.Rptr.2d 40, 884 P.2d 988].)

“The LPS Act governs the involuntary detention, evaluation, and treatment of persons who, as a result of mental disorder, are dangerous or gravely disabled. (§5150 et seq.) The Act authorizes the superior court to appoint a conservator of the person for one who is determined to be gravely disabled (§ 5350 et seq.), so that he or she may receive individualized treatment, supervision, and placement (§ 5350.1). As defined by the Act, a person is ‘gravely disabled’ if, as a result of a mental disorder, the person ‘is unable to provide for his or her basic personal needs for food, clothing, or shelter.’ (§ 5008, subd. (h)(1)(A).)” (Conservatorship of John L. (2010) 48 Cal.4th 131, 142 [105 Cal.Rptr.3d 424, 225 P.3d 554].) Under the Act, a conservator of a gravely disabled person may be appointed for up to one year (§ 5350), subject to a petition to reestablish the conservatorship for additional one-year periods before the expiration of each one-year term (§§ 5361, 5362). Because an involuntary civil commitment constitutes a deprivation of liberty and places a stigma upon the conservatee’s reputation, due process under the California Constitution requires that a finding of grave disability in an LPS jury trial must be unanimous and based upon proof beyond a reasonable doubt. (Conservatorship of Roulet (1979) 23 Cal.3d 219, 235 [152 Cal.Rptr. 425, 590 P.2d 1]; see Conservatorship of Ben C. (2007) 40 Cal.4th 529, 541 [53 Cal.Rptr.3d 856, 150 P.3d 738] [“[b]ecause of the important liberty interests at stake, correspondingly powerful safeguards protect against erroneous findings”].)

V. Standard of Review

We will consider (see pt. VI.B., post) whether the First Amendment right of public access applies to LPS conservatorship trials. Where the issue to be decided implicates First Amendment rights, appellate courts are required to conduct an independent review of the record. (People v. Jackson (2005) 128 Cal.App.4th 1009, 1021 [27 Cal.Rptr.3d 596], citing In re George T. (2004) 33 Cal.4th 620, 630-631 [16 Cal.Rptr.3d 61, 93 P.3d 1007]; see Copley Press, Inc. v. Superior Court (1998) 63 Cal.App.4th 367, 375 [74 Cal.Rptr.2d 69] [“decisions in cases claiming First Amendment rights are reviewed de novo”].)

We also address (see pt. VI.C., post) whether section 5118 constitutes an exception to Code of Civil Procedure section 124’s general requirement that “the sittings of every court shall be public.” The answer to this question is driven by our interpretation of the language of section 5118, a matter subject to de novo review. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724 [122 Cal.Rptr.3d 331, 248 P.3d 1185] [“[statutory interpretation is a question of law that we review de novo”]; see Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 81 [70 Cal.Rptr.3d 88] [de novo review of Cal. Rules of Court concerning sealing of court records].)

Lastly, we examine (see pt. VI.D., post) whether the court erred in concluding that there had been a de facto demand by the parties under section 5118 that Sorenson’s LPS jury trials be public. The facts utilized by the court in reaching this determination are undisputed. Since the historical facts are settled, the issue of whether the parties demanded public trials within the meaning of section 5118 is a question of law subject to independent review. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800 [35 Cal.Rptr.2d 418, 883 P.2d 960]; see Haworth v. Superior Court (2010) 50 Cal.4th 372, 384-387 [112 Cal.Rptr.3d 853, 235 P.3d 152] [factual issues not in dispute and sole question of whether, on facts presented, arbitrator was required to disclose matter affecting impartiality, reviewed de novo].) And, as we discuss, to the extent the court determined that Sorenson had effectively demanded public trials, it also implicitly found that he had waived his privacy rights and his right to assert the psychotherapist-patient privilege. A determination of waiver that is based upon undisputed facts is also a question of law. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196 [8 Cal.Rptr.3d 517, 82 P.3d 727].)

VI. Legal Analysis

The United States Supreme Court has held in a number of cases that there is a First Amendment right of public access to criminal proceedings. Based on these cases, our high court has held that this right also applies to “ordinary civil trials and proceedings.” (NBC Subsidiary, supra, 20 Cal.4th at p. 1212.) As our high court has explained, this constitutional right is a “qualified” one in the sense that the proceedings “are ‘presumptively open’ ” and in order for them to be ordered closed, the court must give advance notice of the potential closure and must conduct a hearing and must make express findings supporting the closure order and/or the sealing of court records. (NBC Subsidiary, at p. 1217.)

Following our discussion of NBC Subsidiary, we will consider whether a trial under the LPS Act is an “ordinary civil proceeding[]” that is presumptively open. (NBC Subsidiary, supra, 20 Cal.4th at pp. 1212-1213, fn. 30.) After concluding that it is not, we will analyze whether an LPS trial is a special proceeding to which the First Amendment right of access nonetheless applies. Finding that there is no such constitutional right, we will then examine whether section 5118, part of the LPS Act, provides a specific exception to the general statutory requirement in Code of Civil Procedure section 124 that all court proceedings be open to the public; we will conclude that under section 5118, all LPS proceedings are presumptively nonpublic. Lastly, we will review the trial court’s conclusion that, notwithstanding the nonpublic nature of LPS trials generally, the parties in this instance had effectively demanded that the LPS jury trials at issue in this case be public, thereby warranting an order releasing the trial transcripts to the People and the media. We will find that the trial court erred in so concluding.

A. Qualified First Amendment Right of Access to Judicial Proceedings

In NBC Subsidiary, our high court addressed the propriety of a closure order in a civil jury trial involving Hollywood celebrities Clint Eastwood and Sandra Locke. (NBC Subsidiary, supra, 20 Cal.4th at p. 1182.) The trial court, on its own motion, ordered the closure of all proceedings occurring outside the presence of the jury. (Id. at p. 1183.) The NBC Subsidiary court determined first that Code of Civil Procedure section 124, a statute that had not been raised by the parties, had “apparent relevance” to the question. (NBC Subsidiary, at p. 1190.) That statute reads: “Except as provided in Section 214 of the Family Code or any other provision of law, the sittings of every court shall be public.” (Code Civ. Proc., § 124.) The court observed that in interpreting the statute, it was required to consider not only its “language and history, but also ... the relevant constitutional principles, relating to public access to court proceedings . . . .” (NBC Subsidiary, at pp. 1191-1192.) In concluding that the trial court erred in closing those proceedings, the high court conducted an exhaustive review of United States Supreme Court decisions that culminated in five public access cases decided between 1980 and 1986. (Id. at pp. 1199-1207.)

Our high court observed that, beginning with Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555 [65 L.Ed.2d 973, 100 S.Ct. 2814] (Richmond Newspapers), the Supreme Court had affirmed “that ‘a presumption of openness inheres in the very nature of a criminal trial under our system of justice.’ [Citation.]” (NBC Subsidiary, supra, 20 Cal.4th at p. 1200, quoting Richmond Newspapers, at p. 573.) Chief Justice Burger, in the lead opinion, “observed [that] open trials enhance the performance and accuracy of trial proceedings, educate the public, and serve a ‘therapeutic’ value to the community [citation]—and this, considered together with historical tradition, leads to the conclusion that ‘the right to attend criminal trials is implicit in the guarantees of the First Amendment.’ ” (NBC Subsidiary, at p. 1200, citing Richmond Newspapers, at pp. 569-573, 580 (lead opn. of Burger, C. J.).) As our high court explained, the Richmond Newspapers court consequently reversed an order closing a criminal trial, where the trial court had failed to make any findings supporting it and had not considered alternatives less drastic than closure. Instead, the Supreme Court concluded “that ‘[a]bsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.’ [Citation.]” (NBC Subsidiary, at p. 1200, quoting Richmond Newspapers, at p. 581.)

In Press-Enterprise Co. v. Superior Court of Cal. (1984) 464 U.S. 501, 503-504 [78 L.Ed.2d 629, 104 S.Ct. 819] (Press-Enterprise I), the Supreme Court considered challenges to the closure of nearly six weeks of voir dire of prospective jurors, and to a subsequent order denying press access to the voir dire transcripts. As the NBC Subsidiary court explained, “Chief Justice Burger’s majority opinion, invalidating the trial court’s order as violative of the First Amendment, emphasized both (i) the historic tradition of open jury selection in England and colonial America [citation], and (ii) the various utilitarian policies advanced by open jury selection. [Citation.]” (NBC Subsidiary, supra, 20 Cal.4th at pp. 1203-1204, citing Press-Enterprise I, at pp. 505-508, 508-509.) The Supreme Court articulated that “ ‘[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’ ” (NBC Subsidiary, at p. 1204, italics omitted, quoting Press-Enterprise I, at p. 510.) The Supreme Court invalidated the closure order because it was not accompanied by specific findings indicating the closure’s necessity, and the court had failed to consider any alternatives to closure of the voir dire proceedings and the transcripts’ sealing. (NBC Subsidiary, at pp. 1204—1205, citing Press-Enterprise I, at p. 513.)

Two years later, in Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 4—5 [92 L.Ed.2d 1, 106 S.Ct. 2735] (Press-Enterprise II), the Supreme Court considered a constitutional challenge to a closure order involving a 41-day preliminary hearing. Under Penal Code section 868 (authorizing exclusion of the public for the protection of a defendant’s right to a fair trial), the court closed the hearing and thereafter sealed the hearing transcripts. Our high court summarized the Supreme Court’s decision as follows: “Chief Justice Burger’s seven-to-two opinion for the court first addressed the ‘two complementary considerations’ of (i) history—i.e., whether there is a ‘tradition of accessibility’ concerning preliminary hearings, and (ii) utility—i.e., whether ‘public access plays a significant positive role in the functioning of [preliminary hearings].’ [Citation.] . . . [T]he court found a ‘near uniform’ practice of open preliminary hearings in this country from the 19th century to the present. [Citation.] Turning to the utility question, the court found that access to preliminary hearings ‘plays a particularly significant positive role in the actual functioning of the process’ [citation], because the preliminary hearing is ‘often the final and most important step in the criminal proceeding’ and in many cases provides ‘ “the sole occasion for public observation of the criminal justice system,” ’ and because closure frustrates the ‘ “community therapeutic value” of openness.’ [Citation.] [¶] The [Supreme Court] concluded that preliminary hearings ‘are sufficiently like a trial’ so as to justify the same treatment under the First Amendment. [Citation.]” (NBC Subsidiary, supra, 20 Cal.4th at p. 1206, citing and quoting Press-Enterprise II, at pp. 8, 10-12.)

Our high court conceded that the Supreme Court cases it reviewed had involved criminal proceedings. (NBC Subsidiary, supra, 20 Cal.4th at p. 1207; see Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1303 [48 Cal.Rptr.3d 183, 141 P.3d 288] [all of the Supreme Court cases detailed in NBC Subsidiary “arose in the criminal context, and the [Supreme C]ourt has not expressly extended its First Amendment right-of-access jurisprudence in those cases to any other context”].) But it noted the reasoning found in those cases “suggested] that the First Amendment right of access extends beyond the context of criminal proceedings and encompasses civil proceedings as well. [Citations.]” (NBC Subsidiary, at p. 1207.) In addition, the high court noted dicta from two Supreme Court opinions suggesting that the right of access applied to civil cases. (Id. at pp. 1207-1208, citing Richmond Newspapers, supra, 448 U.S. at p. 580, fn. 17 (lead opn. of Burger, C. J.) [“historically both civil and criminal trials have been presumptively open”]; Gannett Co. v. DePasquale (1979) 443 U.S. 368, 386-387, fn. 15 [61 L.Ed.2d 608, 99 S.Ct. 2898] [“[T]here is no principled basis upon which a public right of access to judicial proceedings can be limited to criminal cases . . . . [¶] Indeed, many of the advantages of public criminal trials are equally applicable in the civil trial context. . . . Thus, in some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases.”].) After citing four federal and two state appellate decisions supporting such an extension (NBC Subsidiary, at p. 1208) and observing that there were no cases holding or even suggesting that the right did “not apply, as a general matter, to ordinary civil proceedings” (id. at p. 1209), the high court upheld the media’s constitutional challenge. “We conclude, in light of [Supreme Court] case law and its progeny, that, in general, the First Amendment provides a right of access to ordinary civil trials and proceedings, that constitutional standards governing closure of trial proceedings apply in the civil setting, and that [Code of Civil Procedure] section 124 must, accordingly, be interpreted in a manner compatible with those standards.’.’ (Id. at p. 1212, fn. omitted; see H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 887 [60 Cal.Rptr.3d 501].)

Therefore, our high court held, “it is clear today that substantive courtroom proceedings in ordinary civil cases are ‘presumptively open’ and that [Code of Civil Procedure] section 124 must be interpreted to preclude closure of proceedings that satisfy the high court’s historical tradition/utility considerations—unless two things occur, [¶] First, a trial court must provide notice to the public of the contemplated closure. . . . [¶] Second, before substantive courtroom proceedings are closed or transcripts are ordered sealed, a trial court must hold a hearing and expressly find that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.” (NBC Subsidiary, supra, 20 Cal.4th at p. 1217, fns. omitted.)

In holding that the First Amendment qualified right of public access applied to “ordinary civil trials and proceedings” (NBC Subsidiary, supra, 20 Cal.4th at p. 1212), the court emphasized that its decision was a limited one: “We address herein the right of access to ordinary civil proceedings in general, and not any right of access to particular proceedings governed by specific statutes.” (Id. at pp. 1212-1213, fn. 30.)

B. Constitutional Right of Access to LPS Jury Trials

Seven years after deciding NBC Subsidiary, our high court reiterated that “[although we so extended th[e Supreme Court’s right of access] jurisprudence in NBC Subsidiary, we expressly limited the extension ‘to ordinary civil proceedings in general,’ and stressed that we were not addressing ‘any right of access to particular proceedings governed by specific statutes.’ [Citation.]” (Copley Press, Inc. v. Superior Court, supra, 39 Cal.4th at p. 1303, quoting NBC Subsidiary, supra, 20 Cal.4th at p. 1212, fn. 30, original italics.) Therefore, our constitutional analysis begins with a determination of whether court proceedings under the LPS Act, including jury trials, are “ordinary civil proceedings” to which the First Amendment right of public access applies. (NBC Subsidiary, supra, 20 Cal.4th at p. 1212, fn. 30.) We will answer this question in the negative.

Because our high court in NBC Subsidiary expressly declined to address whether a constitutional right of access applies to “particular proceedings governed by specific statutes” (NBC Subsidiary, supra, 20 Cal.4th at p. 1212, fn. 30)—which we find to include LPS proceedings—we will determine if the particular proceedings here are ones that are required to be public. In doing so, we will apply the two-part inquiry adopted in NBC Subsidiary, asking whether LPS trials satisfy the “historical tradition/utility considerations” that would warrant a presumptive right of public access. (NBC Subsidiary, supra, 20 Cal.4th at p. 1217; see In re Marriage of Burkle (2006) 135 Cal.App.4th 1045, 1055-1061 [37 Cal.Rptr.3d 805] [holding presumptive right of access applies to divorce proceedings based upon “ ‘historical tradition/utility considerations’ ”]; San Bernardino County Dept, of Public Social Services v. Superior Court (1991) 232 Cal.App.3d 188, 197-205 [283 Cal.Rptr. 332] (San Bernardino County DPSS) [public access to juvenile dependency proceedings may serve positive function, but because there is no tradition of access, 1st Amend, right of access does not apply].)

1. LPS Jury Trial Is Not an “Ordinary” Civil Proceeding

Our high court did not define “ordinary” in the context of its application of the right of access to “ordinary civil proceedings.” (NBC Subsidiary, supra, 20 Cal.4th at p. 1212, fn. 30.) But it appears that a trial to determine whether a person is gravely disabled and thus warrants commitment under the LPS Act is a “special proceeding” that is a creature of statute, rather than an “ordinary civil proceeding[].” (NBC Subsidiary, at p. 1212, fn. 30.) In Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 860 [12 Cal.Rptr.3d 142], the court considered whether a public conservator may dismiss or withdraw a petition for the reestablishment of an LPS Act conservatorship under Code of Civil Procedure section 581, subdivision (b)(1), under which an action may be dismissed with or without prejudice at the plaintiff’s request before the actual commencement of trial. The court noted that “action,” pursuant to Code of Civil Procedure section 581, subdivision (a)(1), is defined as “ ‘any civil action or special proceeding.’ ” (Conservatorship of Martha P., at p. 866.) It concluded that the dismissal provisions of Code of Civil Procedure section 581, subdivision (b)(1) applied, because “an involuntary commitment or recommitment proceeding under the LPS Act is a ‘special proceeding’ [citation] . . . .” (Conservatorship of Martha P., at p. 867; see Bagration v. Superior Court (2003) 110 Cal.App.4th 1677, 1685, fh. 7 [3 Cal.Rptr.3d 292] [LPS Act conservatorship proceedings for gravely disabled persons are special proceedings].)

In People v. Yartz (2005) 37 Cal.4th 529, 532 [36 Cal.Rptr.3d 328, 123 P.3d 604] (Yartz), our high court addressed whether a prior plea of nolo contendere to a child molestation offense could be used to find the defendant to be a sexually violent predator (SVP) under section 6600 et seq., the Sexually Violent Predators Act (SVPA). The resolution of this issue turned on whether (as defendant claimed), an SVP proceeding was a “civil suit” for purposes of Penal Code section 1016, former subdivision 3, which read in part: “ ‘The legal effect of [a nolo contendere] plea shall be the same as that of a plea of guilty, but the plea and any admission required by the court during any inquiry it makes as to the voluntariness of and factual basis for the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.’ [Citation.]” (Yartz, at p. 534, original italics.) The high court reviewed the nature of SVP proceedings generally, and observed that “[t]he SVPA is not punitive in purpose or effect.” (Id. at p. 535.) It noted that “[s]ince 1872, judicial remedies have been divided into two classes: actions and special proceedings. (Code Civ. Proc., § 21.) An ‘action’ is defined [under Code of Civil Procedure section 22] as ‘an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.’ [Citations.] A ‘special proceeding’ [under Code of Civil Procedure section 22] is ‘[e]very other remedy’ that is not an ‘action.’ [Citations.]” (Id. at p. 536.) Our high court, in rejecting the defendant’s argument that Penal Code section 1016 former subdivision 3, barred the use of his nolo contendere plea in the SVP proceeding because it constituted a “civil suit,” concluded that “ ‘an SVPA commitment proceeding is a special proceeding of a civil nature, because it is neither an action at law nor a suit in equity, but instead is a civil commitment proceeding commenced by petition independently of a pending action.’ [Citation.]” (Yartz, at pp. 536-537.)

Under Yartz, supra, 37 Cal.4th at page 536—although the statutory criteria for civil commitment obviously differ significantly as between the SVPA and the LPS Act—there can be no meaningful distinction between the two proceedings in terms of their classification because (1) neither is a proceeding with the purpose or effect of imposing punishment on the individual (Yartz, at p. 535; Conservatorship of Ben C., supra, 40 Cal.4th at p. 543 [“. . . LPS commitment ‘ “may not reasonably be deemed punishment either in its design or purpose.” ’ ”]), and (2) both are “ ‘special proceeding[s] of a civil nature . . . [and are] civil commitment proceeding[s] commenced by petition independently of a pending action.’ [Citation.]” (Yartz, at pp. 536-537; see Conservatorship of Martha P., supra, 117 Cal.App.4th at p. 867.)

We therefore conclude that a jury trial under the LPS Act is not an “ordinary civil proceeding[]” as to which a qualified First Amendment public right of access applies.

2. History and Utility Does Not Suggest Right of Access

NBC Subsidiary was concerned with public access to an “ordinary” civil trial, not the kind of special proceedings here: a jury trial to determine whether a person should be involuntarily committed as gravely disabled under the LPS Act. (Cf. In re Marriage of Burkle, supra, 135 Cal.App.4th at p. 1055 [NBC Subsidiary “simply did not address” whether divorce proceedings are “among the ordinary civil proceedings that are presumptively open”].) Consistently with the high court’s approach—which in turn was founded upon the Supreme Court’s reasoning in cases such as Richmond Newspapers, supra, 448 U.S. 555 and Press-Enterprise II, supra, 478 U.S. 1—we will examine the “historical tradition/utility considerations” of LPS jury trials to determine whether, as special proceedings, they are presumptively open. (NBC Subsidiary, supra, 20 Cal.4th at p. 1217.)

a. Historical Tradition

There is little helpful data concerning whether LPS trials have a tradition of openness. The People concede this point: “Whether a[n] LPS jury trial has historically been open is unclear. There appears to be no reported case on this subject.” We likewise have found no reported cases addressing the issue. Additionally, our examination of the local superior court rales of numerous counties of the state has not been illuminative.

One practice guide describes the uneven approach afforded confidentiality under the LPS Act in California trial courts: “Confidentiality is a significant issue in all LPS conservatorship proceedings. In at least one county, the entire file is confidential, the court calendar is not available to the public, family members can receive notice of the hearing only if the patient consents and can attend the hearing only at the patient’s request. In some counties, the conservatorship investigator’s report and doctor’s declarations are confidential, but the petition and calendar are available to the public, although the court may close the hearing. In other counties, the report and declaration are confidential, and the matter is heard in open court unless it is a contested hearing, which will be closed to the general public. In still other counties, even contested hearings are open to the public, unless good cause is shown to close them on request.” (2 Cal. Conservatorship Practice (Cont.Ed.Bar 2012) Conservatorships for the Gravely Disabled Under the LPS Act, § 23.47, pp. 1340-1341 (rev. 5/13).)

There are elements of the statutory scheme that suggest the absence of a tradition of openness in LPS proceedings. For example, section 5118 provides that “ [notwithstanding any other provisions of this section, any party to the proceeding may demand that the hearing be public, and be held in a place suitable for attendance by the public.” This language suggests that, as a general rale, LPS conservatorship proceedings are nonpublic in nature. Therefore, regardless of whether this provision, as Sorenson argues, applies to LPS conservatorship jury trials (see discussion at pt. VI.C., post), it is some evidence that conservatorship proceedings are not presumptively open. In addition, certain provisions of the LPS Act safeguard the privacy rights of the proposed conservatee and provide for the confidentiality of records generated in his or her treatment. Most notably, section 5328 provides in part that “[a]ll information and records obtained in the course of providing services under . . . Division 5 (commencing with Section 5000) ... to either voluntary or involuntary recipients of services shall be confidential.” (See § 5330 [providing for damages action for willful, violation of confidentiality provisions of LPS Act]; see also Cal. Judges Benchguides, Benchguide 120: LPS Proceedings (CJER 2010), § 120.32, p. 120-22 [“unauthorized disclosure [of information made confidential under § 5328] may result in substantial civil penalties”].) Further, “the LPS Act ‘specifies a nonexclusive list of rights including “[a] right to dignity, privacy, and humane care” (§ 5325.1, subd. (b)) ...’” (In re Qawi (2004) 32 Cal.4th 1, 17 [7 Cal.Rptr.3d 780, 81 P.3d 224], quoting Riese, supra, 209 Cal.App.3d at p. 1314.) And a court-ordered evaluation under the LPS Act is to “be carried out with the utmost consideration for the privacy and dignity of the [proposed LPS conservatee].” (§ 5200.)

These statutes militate against finding a tradition of openness of LPS court proceedings, to the extent they (1) may be construed to require that hearings be nonpublic, absent a “demand that the hearing be public” (§ 5118); (2) require that the privacy rights of proposed conservatees be given the utmost respect; and (3) preserve the confidentiality of medical and other records relating to proposed conservatees’ care and treatment. Absent a contrary showing, therefore, we conclude that the first element, “historical tradition,” does not favor a right of access.

b. Utility Considerations

The element of utility relevant to determining a right of public access to conservatorship proceedings and court records is likewise difficult to evaluate. As a general matter, the Supreme Court has identified the utility of open trials in the criminal context as consisting of the factors of (1) the “enhance[ment of] the performance and accuracy of trial proceedings [; (2)] education of] the public, [(3)] [performing] a ‘therapeutic’ value to the community” (NBC Subsidiary, supra, 20 Cal.4th at p. 1200, citing Richmond Newspapers, supra, 448 U.S. at pp. 569-573 (lead opn. of Burger, C. J.)); (4) “providing] a means ... by which citizens scrutinize and ‘check’ the use and possible abuse of judicial power [citation] . . . [and, related to the first attribute, (5)] serving] to enhance the truth-finding function of the proceeding [citation].” (NBC Subsidiary, at p. 1202, citing Richmond Newspapers, 448 U.S. at pp. 596-597 (cone. opn. of Brennan, J.).)

The first and fifth beneficial factors—enhancing the conduct, accuracy, and truth-finding function of trials (NBC Subsidiary, supra, 20 Cal.4th at pp. 1200, 1202)—are not as significant in LPS proceedings as in criminal and ordinary civil proceedings. LPS proceedings generally concern private issues relating to the proposed conservatee’s mental health. (See People v. Dixon (2007) 148 Cal.App.4th 414, 427-428 [56 Cal.Rptr.3d 33] [because involuntary civil commitment “proceedings are aimed at determining the status of a person’s mental health, they involve primarily personal and confidential matters”].) While there are undoubtedly instances in which there will be contested lay or expert testimony in connection with proceedings to determine, inter alia, whether the proposed conservatee is gravely disabled, many LPS proceedings do not have the character of criminal or civil trials in which public scrutiny will significantly enhance the truth-finding process. (Cf. San Bernardino County DPSS, supra, 232 Cal.App.3d at p. 202 [open juvenile proceedings may be beneficial in discouraging perjury and encouraging witnesses to come forward].)

The second factor—“education of] the public” (NBC Subsidiary, supra, 20 Cal.4th at p. 1200)—undoubtedly applies to LPS proceedings. Access to LPS conservatorship proceedings would be beneficial, to the extent that it would inform members of the public of ongoing mental health issues in their communities. But too much can be made of this factor because “education of the public” is a mantra that may be readily invoked in support of access to any court proceeding. As Justice Brennan observed: “[B]ecause ‘the stretch of this protection [of a First Amendment “right of access”] is theoretically endless],’ [citation], it must be invoked with discrimination and temperance. For so far as the participating citizen’s need for information is concerned, ‘[t]here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow.’ [Citation.]” (Richmond Newspapers, supra, 448 U.S. at p. 588 (conc. opn. of Brennan, J.).)

The third factor—“[performing] a ‘therapeutic’ value to the community” (NBC Subsidiary, supra, 20 Cal.4th at p. 1200)—offers little support for the position that there should be public access to LPS conservatorship proceedings. As described by the Supreme Court, the “ ‘therapeutic’ ” function of public proceedings is relevant where societal reaction, including outrage, exists in response to the commission of crimes: “This openness has what is sometimes described as a ‘community therapeutic value.’ [Citation.] Criminal acts, especially violent crimes, often provoke public concern, even outrage and hostility; this in turn generates a community urge to'retaliate and desire to have justice done. [Citation.] . . . When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions. Proceedings held in secret would deny this outlet and frustrate the broad public interest; by contrast, public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected.” (Press-Enterprise I, supra, 464 U.S. at pp. 508-509.) While one of the goals of LPS conservator-ship proceedings is the protection of the public (§ 5001, subd. (c); Conservatorship of John L, supra, 48 Cal.4th at p. 150), the “ ‘therapeutic’ value” that public proceedings present to ensure that persons committing criminal acts are brought to justice has no application to proceedings determining whether a person is gravely disabled.

The fourth factor—“providing] a means ... by which citizens scrutinize and ‘check’ the use and possible abuse of judicial power” (NBC Subsidiary, supra, 20 Cal.4th at p. 1202)—applies to LPS conservatorship proceedings. (Cf. San Bernardino County DPSS, supra, 232 Cal.App.3d at p. 202 [access to juvenile dependency proceedings “may also serve to check judicial abuse”].) But this factor—as is true with the public education factor—has seemingly limitless application to any judicial proceeding. Furthermore, to the extent that section 5118 permits “any party to the proceeding [to] demand that the hearing be public,” it serves as a form of escape valve, permitting a party to allow the public to “ ‘check’ the use and . . . abuse of judicial power” (NBC Subsidiary, at p. 1202) by requiring open proceedings. Therefore, we find that the fact that access to LPS proceedings may serve as a theoretical “ ‘check’ [with respect to] the use and possible abuse of judicial power” (ibid.), of itself, is insufficient to support a conclusion that there is a constitutional right to public access of special proceedings such as LPS conservatorships.

In sum, the utility of open LPS conservatorship proceedings is far less than the utility of having criminal proceedings or ordinary civil proceedings open to the public. This finding, coupled with the absence of a showing of a “historical tradition” of public access, leads us to conclude that there is no constitutional right of public access to LPS proceedings, including trials. (Cf. In re Marriage of Burkle, supra, 135 Cal.App.4th at. pp. 1056-1057 [1st Amend, right of access applies to divorce proceedings, where benefits of open civil trials generally applied to divorce proceedings and there was no showing they were traditionally closed].)

C. Applicability of Code of Civil Procedure Section 124

Our conclusion that public access to LPS conservatorship proceedings is not constitutionally mandated does not end our inquiry. We must determine whether there is a statutory exception to Code of Civil Procedure section 124—“California’s long-standing ‘open-court’ statute” (NBC Subsidiary, supra, 20 Cal.4th at p. 1181)—which would negate its requirement that LPS proceedings be open to the public. Under Code of Civil Procedure section 124, court proceedings “shall be public,” “[e]xcept as provided in section 214 of the Family Code[] or any other provision of law.” Sorenson argues that section 5118 is such a statutory exception. He contends that it creates a presumption that LPS proceedings are nonpublic, because it provides that any party to them may demand that a “hearing” (which he contends includes a trial) be public. The People respond that section 5118—based upon its language and legislative history—may not be construed as providing for nonpublic LPS trials, and therefore such trials are public under Code of Civil Procedure section 124.

A resolution of this controversy requires that we employ the customary rules of statutory interpretation. “ ‘We begin by examining the words of the [statute]; if the statutory language is not ambiguous, then we presume the Legislature meant what it said, and the plain meaning of the language governs. [Citations.]’ ” (People v. Montes (2003) 31 Cal.4th 350, 356 [2 Cal.Rptr.3d 621, 73 P.3d 489], quoting People v. Walker (2002) 29 Cal.4th 577, 581 [128 Cal.Rptr.2d 75, 59 P.3d 150].) When there are statutory ambiguities, we may “examin[e] the context in which the language appears and adopt[] the construction which best serves to harmonize the statute internally and with related statutes.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 871 [39 Cal.Rptr.2d 824, 891 P.2d 804].) “ ‘When the language is susceptible of

more than one reasonable interpretation, ... we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]’ [Citation.]” (Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744 [38 Cal.Rptr.2d 650, 889 R2d 970].) “Using these extrinsic aids, we ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to' absurd consequences.’ ” (People v. Sinohui (2002) 28 Cal.4th 205, 211-212 [120 Cal.Rptr.2d 783, 47 P.3d 629].)

Following this approach, first, we “ ‘scrutinize the actual words of the statute [(§ 5118)], giving them a plain and commonsense meaning. [Citations.]’ [Citation.]” (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476 [66 Cal.Rptr.2d 319, 940 P.2d 906].) If we find this step inconclusive, we then look to the legislative history of section 5118. If we are unable to resolve the controversy from doing so, we examine other provisions of the LPS Act in an effort to harmonize them with the language of section 5118 in construing the statute. (Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal.Rptr. 144, 514 P.2d 1224] (Moyer) [“[T]he various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole.”].) After considering section 5118 in the overall context of the LPS Act, and taking into consideration additional rights of patient privacy, we will conclude that LPS proceedings, including jury trials, are presumptively nonpublic under section 5118.

1. The Language of Section 5118

The relevant portion of section 5118 reads: “Notwithstanding any other provisions of this section, any party to the proceeding may demand that the hearing be public, an