LRS files merit brief in guardianship case; Organizations file friend of the court brief in support

August 15, 2012

The Ohio Legal Rights Service (LRS) has taken the important step of bringing the issue of whether an individual with a disability who is indigent (unable to pay) has the same right to appointed counsel at court expense as he or she would have during an initial hearing. This week LRS filed a merit brief in the Ohio Supreme Court, appealing a decision by the Eighth District Court of Appeals in State of Ohio, ex rel. James L. McQueen v. The Court of Common Pleas of Cuyahoga County Probate Division. This is a case of first impression in which the Ohio Supreme Court's decision will decide whether Ohioans who are under a guardianship will have the ability to fully challenge that guardianship, a right which is guaranteed by Ohio law.

LRS represents an individual with a disability who has been under a guardianship for two years. His guardian is neither a family member, nor a friend. Rather his guardian works for an agency funded with money that LRS contends should first be paid to provide appointed counsel in these types of cases. By the power of his guardian, he lives in a secured (locked) nursing facility. He wants to leave and to manage his own affairs.

Last fall he requested a review hearing stating that he believed he no longer needed a guardian. In his request, he asked the Court of Common Pleas for Cuyahoga County, Probate Division to provide him with legal counsel. When the court failed to do this, LRS sought immediate relief by filing a mandamus action in the Court of Appeals. Mandamus is a court action to order a government official, including a judge or magistrate, to perform her or his duty. While the Court of Appeals initially granted an alternative writ to the Probate Court to show cause why relief should not be granted, the Court of Appeals ultimately concluded that the law was not clear enough in its mind to meet the high standards to issue the extraordinary remedy of mandamus.

At the direction of the individual, LRS appealed this decision to the Ohio Supreme Court. Case law makes clear that it is actually the duty of a court of appeals to decide what the law is. LRS argues that in crafting the statutory scheme of due process rights for indigent, adult wards, during initial and subsequent review hearings, the General Assembly intended to provide for the right to counsel in both. LRS explained in its merit brief that this is the only sound reading of applicable Ohio law. Furthermore, this reading protects the right of an otherwise vulnerable citizen, who has had his right to make decisions removed by judicial power, to fully challenge that decision in a future judicial hearing.

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LRS files merit brief in guardianship case; Organizations file friend of the court brief in support