The late Justice Antonin Scalia will be remembered for many things. Here at the disAbility Law Center of Virginia, we remember him as the author of the Supreme Court’s 2011 opinion in VOPA v. Stewart, the decision that ultimately lead to the complete independence of Virginia’s protection and advocacy system.
A few years ago, Virginia’s protection and advocacy organization was a somewhat independent state agency, the Virginia Office for Protection and Advocacy. Although state law referred to VOPA as “independent,” its state agency status still presented serious obstacles. For example, when VOPA investigated suspicious deaths and injuries at state-operated facilities, the state refused to provide all the relevant evidence requested. VOPA sued the state to get that information, but the Fourth Circuit Court of Appeals ruled that one state agency could not sue another state agency. The investigations came to a halt.
VOPA appealed the 4th Circuit decision to the United States Supreme Court, arguing that the special role, created by federal law, of the watchdog agency should give it the ability to sue the state when necessary. This is the bargain, VOPA argued, that the state entered into when it accepted federal money under these programs. In oral argument, the Commonwealth’s attorney, William Thro, complained that allowing one state agency to sue another “offends the dignity of the sovereign state.” Justice Scalia snapped back, “a dignified sovereign would never accept this bargain.”
Justice Scalia went on to author the opinion in VOPA v. Stewart that gave the P & A the authority to sue the state if necessary. It was a 6-2 opinion, solidly in favor of the P & A’s investigative authority. The Commonwealth of Virginia relented, and produced the investigative records in short order. Within the next year, the Commonwealth began the process of establishing the P & A as a fully independent, private non profit organization.
The P & A left state government, to become the disAbility Law Center of Virginia, on October 1, 2013, in large part because of the decision written by Antonin Scalia.
Justice Scalia died this past Saturday, February 13, 2016.