DRW urges WA Supreme Court: lives not empty shoes

8/10/2011
News
Andy Jones
DRW Journalism Intern

In 2008, two guardians requested an allowance from Washington state of $150 per month to cover “special advocacy fees” for activities relating to their role as legal guardians of eight wards living at Fircrest School, one of the state’s five residential habilitation centers (institutions) for people with disabilities in Shoreline.

The Washington State Department of Social and Health Services rejected the request, arguing requested activities did not fall within the scope of a guardian’s duties, nor did they directly benefit their wards. Activities included professional development courses, time spent drafting Friends of Fircrest newsletters, and lobbying to ensure wards remain at the Fircrest School, through a trip to Washington DC to attend the annual Voice of the Retarded conference and meet with state legislators.

The guardians filed a lawsuit against the state to claim the fees, losing at both the superior court and appellate levels.  On June 30, the case came before the Washington State Supreme Court, where DRW and National Disability Rights Network joined together as amici (friends of the court) and argued in support of the state’s position, that guardians cannot get paid for advocacy work without factual showing that the ward wants, needs, or would directly benefit from such advocacy.

At the Supreme Court, DRW attorney Emily Cooper Pura argued payment by the state of these special advocacy fees would violate state law because the guardians failed to prove these activities either reflect a stated or implied interest of the ward or otherwise benefit the “health, safety or finance” of the wards.

However, Cooper Pura also distanced DRW from the state’s position: that guardians could not be compensated for any legislative or advocacy activity.

In one exchange, Justice Debra L. Stevens asked Cooper Pura if guardian’s should hypothetically receive compensation for lobbying activities focused on keeping one person from being evicted from one institution where they live.

Cooper Pura responded yes and then detailed a three-tiered test for determining whether a guardian should receive fees for advocacy activities: does the activity 1) reflect the stated interests or needs of the ward, 2) the implied or historical interest or needs of the ward, or if neither stated or implied preference can be determined based on the individual’s diability, 3) provide a direct benefit.

The guardians, with the backing of an amicus brief filed by American Civil Liberties Union of Washington, argued that in their role, they have “unfettered discretion” in assuming the constitutionally protected rights of their wards - including speech, property, and liberty – and should be able to step into each ward’s shoes as if they were the wards themselves.

DRW ultimately urged the Court to reject this argument as it puts all people with disabilities who have guardians in Washington State at risk of losing their autonomy, simply because of the assumptions that their lives are empty shoes to fill.