Severson & Werson Wins an Important Pro Bono Case on Behalf of the Developmentally Disabled

(Last updated October 26, 2007)

Attorneys from Severson & Werson’s Financial Services Group have won an important appellate victory for developmentally disabled Californians and their families. Jan Chilton, an appellate specialist, spearheaded the effort, with Donald Querio’s and Joshua Whitehair’s able assistance.

The published opinion in Conservatorship of Whitley (North Bay Regional Center v. Maldonado) (Oct. 10, 2007) ___ Cal.App.4th ___, 2007 WL 2937808 guarantees conservators and other authorized representatives of the developmentally disabled a role in planning for their treatment and out-placement to community facilities, as well as a full administrative appeal if the conservator or representative objects to a treatment or out-placement plan.

Facing constrained budgets and pressure from advocacy groups, the state-funded agencies serving the developmentally disabled try to move those individuals from state-run institutions to private community facilities that are often unable to adequately care for them. After 39 years at the state-run Sonoma Development Center, the 52-year-old Whitley was targeted for a move to a private facility in Fairfield which was too far away for his family to maintain regular contact and offered less adequate care than at the Center.

Whitley’s sister and conservator turned to the firm for assistance on appeal after a trial court decision rejected her challenge to the planned move. The firm handled the appeal on a pro bono basis, since the conservator, like most relatives of the developmentally dis­abled, could not afford to fight this battle on her own. The opposition included the North Bay Regional Center, the agency trying to displace Whitley, the Attorney General, on behalf of the State Department of Developmental Services, and a federally-funded advocacy group, Protection & Advocacy, Inc.

At the firm’s request, the Court of Appeal first issued a writ of supersedeas, halting the planned move pending the conservator’s appeal. After full briefing and argument, the court issued its opinion upholding the rights of conservators and other authorized representatives to participate fully in the treatment and out-placement planning process and to challenge objectionable plans through a legislatively-provided administrative appeal, followed by court review on administrative mandate, if necessary.

The wholly discretionary and truncated “Richard S.” court review, to which the agency had wrongly steered Whitley’s conservator, is reserved for persons to whom the Legislature has not given the right to an administrative appeal.

As a result of the decision, conservators and other authorized representatives of the developmentally disabled will be better able to secure the legislatively mandated level of appropriate care, which has all too frequently been overlooked in the rush to “de-institutionalize” this vulnerable population.