Washington State expands rule on counsel for litigants with disabilities to admin proceedings
While a state may have many statutes, court decisions, or court rules governing appointment of counsel for a particular subject area, a "Key Development" is a statute/decision/rule that prevails over the others (example: a state high court decision finding a categorical right to counsel in guardianships cases takes precedence over a statute saying appointment in guardianship cases is discretionary).
08/02/2017, Court Rule or Initiative, All Basic Human Needs
Washington State's Office of Administrative Hearings (OAH), the central panel in charge of hearing cases for over 40 state agencies, is adopting a rule that will permit the appointment of counsel for people with disabilities (similar to GR-33, an existing Washington rule authorizing appointments in court proceedings as a reasonable accommodation). The rule goes into effect on Jan 1, 2018.
OAH hears cases for the Department of Social and Health Services (public assistance and child support cases), Healthcare Authority (Medical assistance cases), Employment Security (UI cases), and the Office of the Superintendent for Public Instructions (special education cases), to name just a few of the agencies that serve clients who often have disabilities affecting their ability to represent themselves in hearings.
The new rule comes on the heels of a case brought by the Northwest Justice Project (NJP) for a workers compensation claimant in an administrative proceeding before the state Board of Industrial Insurance Appeals (BIIA, which is the Washington Workers Compensation tribunal). The right to counsel was based on his need for a “representational accommodation” under the Americans with Disabilities Act (ADA) for his mental disability. The case, Weems v. State Board, arose from the BIIA’s denial of benefits to the claimant after a series of proceedings before the tribunal in which several references were made to his need for counsel and his inability to represent himself based on his inability to follow the proceeding, inability to read and understand the documents, anger management problem, and other difficulties.
In an unpublished decision, the Washington Court of Appeals in Weems remanded the case back to the trial court for entry of appropriate Findings of Fact and Conclusions of Law based on the applicable analytical framework under the ADA and Washington Law Against Discrimination (WLAD). Importantly, the Court of Appeals did not reject a right to a representational accommodation under the ADA or WLAD but stated that more specific factual findings were needed under the analytical framework that applies to such claims. On remand, the trial court entered Findings of Fact and an Order remanding the case to the BIIA for new proceedings on the claim and requiring that counsel be appointed to represent the claimant. The BIIA initially appealed that order, but then dismissed its appeal.
To see documents from the case, check out the NCCRC's comprehensive bibliography entry on Weems.
If "yes", the established right to counsel or discretionary appointment of counsel is limited in some way, including any of: the only authority is a lower/intermediate court decision or a city council, not a high court or state legislature; there has been a subsequent case that has cast doubt; a statute is ambiguous; or the right or discretionary appointment is not for all types of individuals or proceedings within that category.
Appointment of Counsel: discretionary Qualified: yes
The NCCRC gave input on the draft rule.