The rights of others: protection and advocacy organizations' associational standing to sue.

• Author: Heilman, Kelsey McCowan

INTRODUCTION

Popular discussion of the standing doctrine has reached a fever pitch. A search for "standing to sue" in the New York Times archives for the last two years connects this phrase to a smorgasbord of hot political issues: global warming, (1) warrantless wiretapping, (2) torture, (3) and the separation of church and state. (4) For a relatively young doctrine, (5) standing is incredibly pervasive in popular as well as judicial discourse.

This Comment explores the implications of the standing analysis for a particular group of plaintiffs: Protection and Advocacy Organizations (P&As)--a group of federally funded nonprofit corporations or state entities (6) statutorily charged with protecting and advocating on behalf of individuals with disabilities. P&As exist in all fifty states, Puerto Rico, the District of Columbia, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands. (7) According to the National Disability Rights Network's website, P&As

have the authority to provide legal representation and other advocacy services, under all federal and state laws, to all people with disabilities (based on a system of priorities for services). All P&As maintain a presence in facilities that care for people with disabilities, where they monitor, investigate and attempt to remedy adverse conditions. These agencies also devote considerable resources to ensuring full access to inclusive educational programs, financial entitlements, healthcare, accessible housing and productive employment opportunities. (8) P&As engage in a variety of advocacy activities, though their priorities differ across the country as they respond to local and state-specific problems. For example, in October 2008, Pennsylvania's P&A, the Disability Rights Network of Pennsylvania (DRN), focused on combating the bullying and harassment of children with disabilities in public schools. (9) DRN's website provided a variety of "Know Your Rights" publications and resources for parents and offered the opportunity to participate in a survey on the topic. The Hawaii Disability Rights Center provides an example of a different type of advocacy through its recently launched community television series on disability rights. (10) The series features programming on emergency preparedness and other issues for individuals with disabilities and their families. Disability Rights Oregon is currently investigating complaints of maltreatment faced by individuals with mental disabilities in emergency rooms through an online questionnaire. (11)

These examples represent a very small slice of the advocacy in which P&As engage each day. P&As also regularly meet with local, state, and national government officials, comment on proposed regulations, and visit local facilities for individuals with disabilities. Occasionally, a P&A determines that litigation is the best way to advocate on behalf of state residents with disabilities. However, courts of appeals disagree over whether P&As have associational standing to sue on behalf of their consutuents. (12) This question is particularly important for anyone concerned about disability rights, given that individuals with disabilities--especially those in institutions--face cognitive and social barriers to self-advocacy.

The resolution of the associational standing issue for P&As has ramifications for other organizations as well. Certain organizations-such as unions and trade associations--clearly have associational standing, provided that they can demonstrate harm to one of their members and an issue central to their purposes as an organization. (13) However, for other types of organizations, such as environmental groups, which may not have a dues-paying or voting membership in the traditional sense, standing poses a series of unanswered questions. To qualify for associational standing, does the organization have to be long established, or can it be newly formed? (14) Must the members vote or pay dues? (15) Does membership have to be voluntary? (16) A careful analysis of P&As' associational standing is important beyond the disabilities world; it also has the potential to inform decisions that other organizations make when constructing legal arguments for associational standing--and even when deciding how to structure their organizations in the first instance. (17)

When it comes to associational standing, the judicial inquiry is composed of two parts. First, courts ask the constitutional question: whether the ties between the member or members and the association are tight enough to satisfy Article III's core standing requirements of injury, causation, and redressability. (18) Since individuals themselves cannot bring suit in federal court without meeting these three requirements, associations must demonstrate a sufficiently close relationship to the members and their interests to gain standing by proxy. Second, courts are faced with the prudential inquiry: whether an association that is constitutionally qualified to sue on behalf of its members should be granted an exception to the usual prudential limitation that one person cannot sue on behalf of another. (19) The doctrinal approach to associational standing, articulated in Hunt v. Washington State Apple Advertising Commission, requires an organization to satisfy a three-prong test to establish standing. (20) The test encompasses both the constitutional and prudential requirements. (21)

In Parts I and II of this Comment, I trace the history of P&As' enabling statutes and the Supreme Court's standing and associational standing doctrines, paying particular attention to the goals underlying the standing test. Part III introduces the approaches of the four courts of appeals that have ruled on the issue of associational standing for P&As. Finally, Part IV applies the Hunt analysis, informed by the goals discussed in Part III, to P&As. I argue that the procedural safeguards in place under P&A enabling statutes ensure a connection between P&As and their constituents, affirming the tight relationship between the claim and the organization necessary to provide zealous litigation and protect the separation of powers. Therefore, Article III should not be construed to bar associational standing for P&As because these organizations will be litigating true Article III "controversies." Furthermore, the P&A enabling statutes should be read as an abrogation by Congress of all prudential barriers to granting P&As associational standing. Finally, the real-world risk of unaddressed rights violations if P&As are denied standing further supports an extension of the prudential doctrine of associational standing to include P&As.

1. THE HISTORY AND STATUTORY AUTHORITY OF PROTECTION AND ADVOCACY ORGANIZATIONS

   In 1974, an advocacy group for children with disabilities successfully sued Willowbrook State School, a New York institution for people with developmental disabilities, for inhumane treatment of thousands of patients. (22) In finding that the school had violated the patients' "right to reasonable protection from harm," (23) the court noted "[t]he loss of an eye, the breaking of teeth, the loss of part of an ear bitten off by another resident, and frequent bruises and scalp wounds were typical of the [residents'] testimony." (24) The true horrors of Willowbrook are only hinted at in the court's opinion; witnesses at the trial reported beatings, inappropriate use of restraints, untreated wounds, and even deliberate exposure to disease for the purpose of medical experimentation. (25) In response to the situation at Willowbrook, Congress passed the Developmental Disabilities Assistance and Bill of Rights Act (the DD Act) of 1975. (26) The DD Act offered federal funding to assist states in providing services to individuals with developmental disabilities. To be eligible for this funding, states were required to establish a system to "protect the legal and human rights of individuals with developmental disabilities." (27)

   In 2000, the DD Act was repealed and replaced with the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (PADD). (28) Between 1975 and 2000, the responsibility and authority of P&As had been expanded by two major pieces of federal legislation: the Protection and Advocacy of Mentally Ill Individuals Act of 1986 (PAIMI) (29) brought people with mental illness under the protection of P&As, while the Protection and Advocacy of Individual Rights Act of 1992 (PAIR) (30) filled in the gaps and inclusively covered all individuals with disabilities not yet covered by PADD or PAIMI. Collectively, these three statutes grant a state's P&A the powers to investigate allegations of abuse and neglect, respond to rights violations, and provide general advocacy services on behalf of state residents with disabilities or mental illness. (31)

   Under these governing statutes, P&As are granted certain rights and responsibilities. They are broadly given the authority to "pursue legal, administrative, and other appropriate remedies" on behalf of individuals with disabilities. (32) Pursuant to this broad grant, P&As specifically have access to these individuals in any facility where "services, supports, and other assistance are provided." (33) P&As also have the authority to view the records of individuals with disabilities (34)--in certain situations, without consent of either the individual or her legal guardian. (35) This access to individuals and records is available at any time for the purposes of investigating a suspected specific "incident of abuse or neglect." (36) Where a P&A is not investigating a specific incident, it is entitled to access facilities "at reasonable times" for the purposes of general advocacy (for example, the distribution of information or routine health and safety monitoring). (37)

   Structurally, the federal statutes allow states to choose how to implement their protection and advocacy systems. (38) As a result, some states...