Michelle K. v. Superior Court
221 Cal. App. 4th 409
| Cal. Ct. App. | 2013Background
- Michelle K., a 51-year-old developmentally disabled adult, has resided at Fairview Developmental Center for over 40 years under Lanterman Act placements.
- Her conservators, including George, contend Fairview is the least restrictive appropriate placement and object to less restrictive alternatives.
- The Orange County Public Defender filed a habeas corpus petition under §4800 on Michelle’s behalf seeking release from Fairview.
- George, acting as Michelle’s coconservator, hired private counsel and sought substitution of counsel, opposing the Public Defender’s petition.
- The trial court had been conducting Hop reviews for Michelle’s placement since 1993, with one-year review periods and hearings scheduled periodically.
- The petition for writ of mandate/prohibition directed the trial court to dismiss the habeas petition, proceed with a Hop review, and consider substituting counsel for Michelle.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Public Defender may pursue §4800 habeas petition for Michelle | Public Defender filed petition as acting on Michelle’s behalf | Hop requires exceptional circumstances; conservatorship and Hop review provide adequate remedies | Public Defender may not pursue §4800 petition on Michelle’s behalf |
| Whether Hop requires ongoing judicial reviews of 4825 placement for Michelle | Hop supports initial and periodic reviews of placement | Hop does not apply to ongoing administrative reviews | Hop applies; trial court has jurisdiction to conduct periodic Hop reviews and ensure continued justification for placement |
| Whether George may substitute his private counsel for the Public Defender | George seeks substitution to control Michelle’s representation | Hop requires independent appointed counsel; substitution undermines Michelle’s rights | George may not substitute; Michelle has right to independent counsel; George can request new appointed counsel if needed under Marsden framework |
| Relation between Hop reviews and administrative fair hearing procedures | Administrative remedies exhaust Hop review rights | Hop reviews fill due process; administrative procedures differ | Hop reviews remain permissible and are not displaced by exclusive administrative fair hearing remedies; use administrative process for service-specific challenges |
| Right to independent counsel and Marsden procedures in Hop review | Michelle must have independent counsel; Public Defender appointed | George argues for substituted counsel; Marsden does not apply | Independent appointed counsel required; Marsden rights apply; trial court must allow new counsel requests if Public Defender ineffective |
Key Cases Cited
- Hop, In re Hop, 29 Cal.3d 82 (Cal. Supreme Ct. 1981) (absolute right to judicial hearing when placement in state hospital is questioned; very exceptional circumstances for non-detained petitioners)
- Whitley, Conservatorship of Whitley, 155 Cal.App.4th 1447 (Cal. App. 4th Dist. 2007) (administrative fair hearings exhaust the remedy for challenges to services; but Hop governs placement in developmental centers)
- Gandolfo, Conservatorship of Gandolfo, 36 Cal.3d 889 (Cal. 1984) (habeas corpus is not available where other adequate remedies exist)
- Michael K., In re Michael K., 185 Cal.App.4th 1112 (Cal. App. 4th Dist. 2010) (addressed limits of Hop and ongoing jurisdiction; cautioned against using Hop to circumvent administrative remedies)
- Violet C., In re Violet C., 213 Cal.App.3d 86 (Cal. App. 3d Dist. 1989) (early development of how LPS and related statutes interact with placement in centers)
- Sherry S., North Bay Regional Center v. Sherry S., 207 Cal.App.3d 449 (Cal. App. 3d Dist. 1989) (acknowledged conservator authority but reaffirmed Hop’s reach over placement decisions)
- Wendland v. Superior Court, 49 Cal.App.4th 44 (Cal. App. 2d Dist. 1996) (independent counsel rights for conservatees when petition affects liberty interests)
- Drabick, Conservatorship of Drabick, 200 Cal.App.3d 185 (Cal. App. 1st Dist. 1988) (independent counsel required to protect conservatee’s best interests when rights at stake)
- Marsden, People v. Marsden, 2 Cal.3d 118 (Cal. Supreme Ct. 1970) (right to substitute appointed counsel when counsel’s representation is ineffective)
- In re Borgogna, 121 Cal.App.3d 937 (Cal. App. 3d Dist. 1981) (discussed standing of the Public Defender in habeas petitions; distinguish Hop exceptional circumstances)