One of my more popular blog entries is the blog entry that discusses suing a state court system for disability discrimination. I also have a second blog entry following up on that blog entry.
This blog entry explores a related topic. Let’s say a person with a disability finds themselves in the court system in a civil matter. The person with a disability because of their disability simply cannot access the court system properly without an attorney. Does the ADA or, for that matter, a state antidiscrimination law, mandate that an attorney be appointed for that person with a disability much in the same way as an attorney is appointed for someone who cannot afford an attorney in a criminal matter? A case that doesn’t specifically address this question, but raises this issue is, Weems v. Bd. of Indus. Ins. Appeals, 2014 Wash. App. LEXIS 1659 (Wash. Ct. App. July 8, 2014).
As is my usual practice, I have the blog entry divided into sections. These sections for this blog entry are: facts, court’s holding, what the court wanted to know more about, and takeaways. The reader is free to focus on any or all of the categories of this blog entry.
In 1973, the plaintiff suffered an on-the-job injury where he was struck in the head by a cable, broke cartilage in his nose, and bruised his nose and face. Over the years, the plaintiff suffered other injuries as well, including falling 75 feet off a water tower and having his face strike a wall at home in 1997. In 2007, the plaintiff applied to reopen his claim due to the worsening of injuries caused by the 1973 accident. From here, the facts get a little complicated. Suffice to say, what happened is at the trial level, the workers compensation system in the State of Washington made clear that he should have an attorney, but that it would have to be at his own expense. His wife tried to assist through the process, but was clearly uncomfortable and made it clear that the plaintiff did not have the ability to understand and participate in the proceedings the way he needed to without legal counsel. She expressed quite a bit of unhappiness that counsel would not be appointed for them. The plaintiff himself did not seem to want legal counsel, but on this point, the facts were murky. At any rate, what happened is once the lower-level decision was appealed, counsel was appointed for the plaintiff, but that obligation ended once the case got sent back down to the lower levels. This happened twice in the same way. After the second time, an appeal was taken into the state court system where the plaintiff claimed that the Superior Court erred because the Board discriminated against the plaintiff in violation of the ADA and the Washington Law against Discrimination.
The court said that they could not review the claim because the record lacked findings of facts on material issues.
What the Court Wanted to Know More About
The court wanted to know the following things:
1. Was the plaintiff a person with a disability as defined by the ADA as amended and under the Washington Law Against Discrimination?
2. Did the plaintiff requests that the Board appoint him counsel as an accommodation for his disability? If not, was the plaintiff’s need for accommodation obvious to the Board?
3. The Superior Court needed to figure out whether the Board’s alternative to the appointment of counsel at public expense (such as plaintiff’s ability to hire an attorney on a contingency fee basis, the plaintiff’s wife assistance as a lay representative, and the industrial appeals Judge’s questioning of witnesses), either: A. failed to provide the plaintiff with the level of service comparable to that enjoyed by nondisabled claimants; or B. deliberately failed to accommodate plaintiff’s disability so as to discriminate against him.
4. Would appointment of counsel at public expense unduly burden the Board?
1. If you are running a state court system or even a federal court system, make sure you have an ADA compliance manual that informs everyone what their obligations are. The Illinois Attorney General has developed an excellent one in this area, though it is not perfect. Regardless of the compliance manual that you use, it is worthwhile to have that compliance manual reviewed by an attorney with expertise in the ADA so that any gaps in the compliance manual can be filled in.
2. If a person has a disability and is involved in the state court system, judges and court personnel need to be on the lookout to decide whether that person’s disability is something in need of accommodation. If so, the court system should initiate the interactive process.
3. Keep in mind, that a court system failing to engage a person with a disability in order to make sure that they can access the court system, runs the real risk of not only violating title II of the ADA but also violating the equal protection clause of the 14th amendment because when it comes to accessing the courts, persons with disabilities are at least in the intermediate scrutiny or higher class for equal protection jurisprudence per Tennessee v. Lane, 541 U.S. 509, 533-34 (2004). In English, this means a state court system violating title II of the ADA also probably violates a person with a disability’s equal protection rights as well.