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Jun. 27, 2015

Deja vu for disability rights at the Justice Department

A class action filed Friday with the DOJ alleges that the court has been failing miserably in fulfilling its duty to provide litigants with developmental disabilities access to justice. By Thomas F. Coleman

Thomas F. Coleman

Legal Director, Spectrum Institute

1717 E. Vista Chino A7-384
Palm Springs , CA 92262


Loyola Law School

Spectrum is a nonprofit organization advocating for reforms in California's conservatorship system and in state guardianship systems throughout the nation.

By Thomas F. Coleman

One year ago I stood with other disability rights advocates outside of the federal
courthouse in Los Angeles to announce the filing of a voting rights complaint against
the Los Angeles County Superior Court. After the press conference, we walked to the
office of the U.S. attorney where we delivered evidence that the court had been stripping
conservatees of the right to vote in violation of federal laws.

In May, the Department of Justice notified the chief justice and the secretary of
state that a formal investigation was being conducted, but instead of focusing on
Los Angeles, the inquiry was broadened to the entire California judiciary. The state
has until June 30 to turn over scores of records about the policies and practices
of the court in disqualifying conservatees from voting.

Today we returned to the same spot on the sidewalk across from the federal courthouse
to make two new announcements. The first is a follow up to the voting rights complaint.
The second concerns ongoing violations of the Americans with Disabilities Act by court-appointed
attorneys who represent people with developmental disabilities in limited conservatorship

The courts have a duty to restore the voting rights of thousands of conservatees who
lost those rights due to an illegal literacy test used by court investigators, appointed
attorneys, and judges.

Consider the case of Gregory Demer, an autistic 28-year-old who was disqualified from
voting 10 years ago. Although a court investigator filed a report in 2012 stating
that Demer's voting rights should be restored, neither the court-appointed attorney
nor the judge on the case responded to that recommendation. They read the report
but did not take remedial action. A similar report was filed last year when Judge
Daniel Murphy was assigned to the case. Again, neither he nor the court-appointed
attorney followed their legal duty to have Demer's voting rights restored. As a result
of these failures, Demer was deprived of his right to vote for president, governor,
mayor and county supervisor.

There are about 12,000 people with developmental disabilities who have open conservatorship
cases in Los Angeles County alone, not to mention the rest of the state. Thousands
of them may need to have their voting rights restored.

But reform must go beyond voting rights. More fundamental rights, such as the right
to having a competent attorney, are at stake. The superior court does not properly
train these attorneys on the basics of disabilities and how to effectively interact
with clients who have cognitive and communication difficulties. Training programs
have not included segments on the legal requirements of the ADA. The court has not
adopted performance standards for these attorneys, thus leaving them to comply with
the ADA or not, as they wish. Many attorneys are putting in five hours or less on
a case, when it would take 20 or more hours to do a proper job.

Title II of the ADA gives public agencies, including state and local courts, an obligation
to use affirmative measures to ensure litigants with disabilities receive access to
justice. Courts must take proactive steps to ensure that involuntary litigants such
as proposed limited conservatees, can participate in their cases in a meaningful way.
These cases are critical for these litigants since a judgment may take away the right
to control their finances, make medical decisions, choose their friends, marry or
have intimate relations with a romantic partner.

A class action filed Friday with the DOJ alleges that the court has been failing miserably
in fulfilling its duty to provide litigants with developmental disabilities access
to justice. An independent investigation by the DOJ should confirm those allegations.

During the Watergate scandal, "deep throat" famously told a reporter with the Washington
Post to "follow the money" to get to the bottom of the matter. Here, the trail of
money that funds the court-appointed attorneys leads to the Los Angeles County Board
of Supervisors. State judges appoint the attorneys and run the legal services program,
but the county funds it. These supervisors should attach strings to the funding to
stop ADA violations. As the funding source for the program, the county also has a
duty under Title II of the ADA to make sure that the program complies with the requirements
of federal law.

County officials and state judges must explore ways to overcome the deficiencies in
the limited conservatorship system, including potentially having the public defender
represent these clients and eliminating private attorneys from the picture altogether.

We have only gone to the door of the Department of Justice, now twice, because the
state and local doors to political power and the machinery of justice would not open
for us. Perhaps those in positions of judicial power in California will open the door
when the feds come knocking again.

  <b>Thomas F. Coleman</b><i> is the legal director of the Disability and Abuse Project of Spectrum Institute.</i> 
  <p/> <!-- Deja vu for disability rights at the Justice Department   -->

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