Washington State creates, expands rule for appointment of counsel for litigants with disabilities

A court rule, Wash. Gen. R. 33(a)(1) (often referred to as GR-33), permits a court to appoint counsel for a person with disabilities as a reasonable accommodation.  The Washington Administrative Office of the Courts has put out some guidance as to how the rule should be applied by the courts.  In In re Marriage of McCann, 2018 Wash. App. LEXIS 1979 (Wash. App. 2018), the Court of Appeals held that GR-33 denials can be appealed, notwithstanding the fact that the rule does not explicitly address appealability:

[C]omment 1 to GR 33 states that the policy of the courts is to provide meaningful access to justice and the judicial system. Creating a strict, narrow, and more onerous path to obtaining a remedy under GR 33 would cut against this stated purpose. And, Washington appellate courts have repeatedly entertained appeals involving other general rules that, like GR 33, do not grant an explicit right to an appeal. In In re Dependency of M.H.P., 184 Wn.2d 741, 753, 364 P.3d 94 (2015), the Supreme Court reviewed the trial court's application of GR 15(c), which concerns sealing of records. Like GR 33, GR 15 does not explicitly grant a right to appeal, or otherwise instruct that an application of GR 15 is appealable. And, in State v. Russell, 141 Wn. App. 733, 740, 172 P.3d 361 (2007), this court reviewed the trial court's application of GR 16, which concerns media in the courtroom, to the defendant's trial below. As with those rules, a party is entitled to challenge the application of GR 33 in an appeal of the same proceeding in which the GR 33 accommodations were sought.

The McCann court also rejected the argument that the County was the right party to defend the rule, noting that two prior cases involved challenges to other court rules and "In neither case were the appellants required to bring their claims against the counties."

Washington State's Office of Administrative Hearings (OAH), the central panel in charge of hearing cases for over 40 state agencies, adopted a rule similar to GR-33 that permits the appointment of counsel for people with disabilities in administrative proceedings.  The rule went 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 admin rule came 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.