Britney Spears’s case brings up complex legal questions

Although the #FreeBritney movement seems like tabloid fodder, the singer’s story encapsulates a number of complex legal questions that are deeply troubling as a matter of foundational due process. 

At 39, Spears has been constrained for 13 years by a legal conservatorship under California law. During that period, she performed over 248 shows in Las Vegas — grossing $137.7 million, recorded four studio albums, and performed in four world tours. 

The question before the California courts is whether this global megastar and mother of two boys is so legally incapable of caring for herself that virtually all personal and financial decisions must be made by other people, not of her choosing. To date, California courts have answered this question in the affirmative, over Spears’s objections. The person primarily empowered to legally control her life, again over her objections, is her father, Jamie Spears. 

Akin to a guardianship, a conservatorship occurs in California when “a judge appoints a responsible person or organization . . . to care for another adult . . . who cannot care for himself or herself or manage his or her own finances.” There are two types of conservatorships under California law. According to the state’s website, a “Lanterman-Petris-Short (LPS)” conservatorship is “used to care for adults with serious mental health illnesses who need special care,” such as “very restrictive living arrangements (like living in locked facilities) and require extensive mental health treatment (like very powerful drugs to control behavior).” 

A “probate conservatorship,” which is the one Spears has, is for “adults who cannot take care of themselves or their finances, . . . often elderly people, but can also be younger people who have been seriously impaired, like in a car accident.” Although temporary versions are available, Spears is under a permanent one, which the website explains is reserved for people needing a higher level of care than “adults with developmental disabilities who cannot fully care for themselves or their finances.”

Spears’s dad requested the conservatorship after a series of incidents in the wake of her separation from Kevin Federline, whom she married in 2004 and divorced two years later after the birth of their second child. Yet it remains unknown what conditions could possibly be so serious to compel the State of California to keep Britney in a conservatorship 13 years later. As recently as June 23 of this year, a judge rejected her plea for freedom from those “exploiting my life,” and sealed from public scrutiny the full court records that might shed light on the rationale for her ongoing legal subordination. 

While the divorce case was pending and Spears was still nursing her youngest, who was barely one year old, the couple shared custody. In February of 2007, she shaved her head and hit a paparazzo’s car with an umbrella. According to a recent piece in The New Yorker, both incidents occurred after Federline refused her access to the kids, photographers in pursuit. People within her orbit suspected that she was suffering from post-partum depression or possibly using drugs and alcohol at the time. In the custody case, the judge cited “habitual, frequent uses of controlled substances and alcohol” to justify awarding primary custody to Federline and giving Spears a right to visit four times a week with a court-ordered monitor, Robin Johnson, who later called it “probably one of the saddest cases that I’ve ever done in my entire life.” (California law requires judges to presume that joint custody is in the child’s best interest absent evidence that the child’s health, safety, or welfare calls for one parent to lose that presumption, among other factors.) 

Meanwhile, Spears became increasingly upset and stopped sleeping. In January 2008, a bodyguard arrived to take the boys back to their dad’s house. She handed over the older child but took the baby into the bathroom. Federline’s lawyers called the police and the fire department. With news crews circling, four helicopters arrived, along with numerous police officers and firemen with axes. Spears’s then-manager, Sam Lufti, opened the unlocked bathroom door to find her holding the sleeping baby. Law enforcement took the child, strapped Spears onto a gurney, and involuntarily hospitalized her pursuant to a California law that is available if a “mentally disordered” person is “a danger to others, or . . . herself, or gravely disabled.” The law requires a detailed explanation to the person being detained, including information about consulting an advocate. 

After a subsequent dustup involving Lufti, law enforcement had Spears involuntarily committed for a second time. This round, while Spears was hospitalized, a court implemented the conservatorship without her knowledge or consent, pursuant to an exception to the law’s notice requirements. Spears was appointed a lawyer, Sam Ingham, who continues to earn an annual salary of $520,000. (According to available court records, Spears gets $2,000 per week.) Ingham later told the court that Spears told him she’s “afraid of her father,” whom Federline accused of child abuse, although no charges were filed. Spears has reportedly been unable to hire a lawyer of her own choosing.

The initial conservatorship hearing lasted 10 minutes and involved no questions or testimony. Reports were provided by three psychiatrists, one of whom recently said, “I don’t know why she still has a conservatorship.” The temporary conservatorship named a lawyer (who was ultimately replaced by a financial institution, which recently stepped down) as co-conservators. In October 2008, the temporary conservatorship was made permanent. Although the court has repeatedly denied Spears’s request to have her father removed, a professional conservator, Jodi Montgomery, was added in 2019 to temporarily manage her personal life.

To date, Jamie Spears reportedly retains the primary legal power to negotiate his adult daughter’s business deals, sell her property, restrict her visitors, control her spending, file restraining orders against people that concern him (including her former manager, Sam Lufti), restrict her access to a cell phone, decide if she can remarry, and even forbid the removal of her IUD, a contraceptive device, so she can have more children. 

Legally speaking, this is shocking. The Due Process Clause of the 14th Amendment exists to protect against arbitrary restraints of individual liberty by the government. The constitutional guarantee operates in two ways: it requires notice and a hearing before liberty can be restrained, and it forbids restraints on certain types of liberty altogether, such as the right to marry. Some of those who maintain that Spears still needs to be controlled are making substantial sums from her continued success as an international music icon. In the #MeToo era, one wonders whether, if Federline were the superstar who crossed identical boundaries of “normal” behavior, he too would remain in perpetual legal internment.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter and Instagram @kimwehle.