Prisoner Theory Institute Law Review

In re Guardianship/Conservatorship of H.M.

Civil Death, Collateral Consequences, and the Limits of Washington's Restoration Promise

Washington Supreme Court  ·  Court of Appeals No. 86687-7-I

Petition for Review filed July 1, 2026

ABSTRACT

In re Guardianship/Conservatorship of H.M., pending before the Washington State Supreme Court on Petition for Review (Court of Appeals No. 86687-7-I), raises four constitutional questions Washington's appellate courts have not resolved. A decorated veteran and his father's designated attorney-in-fact was displaced by a professional corporate guardian in Snohomish County Superior Court. The Court of Appeals affirmed, reached only one of four constitutional arguments, and rejected it under a framework the petitioner contends is wrong. The Petition argues that post-sentence civil disabilities must be evaluated under the seven-factor punitive-versus-regulatory inquiry of Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); that Washington's permanent fiduciary disability scheme contradicts the State's own civil rights restoration statute; that differential treatment of attorney-felons and non-attorney-felons raises a substantial equal protection question; and that Division One's refusal to apply manifest-error review to pro se constitutional claims conflicts with Division Two's decision in State v. Koch, 34 Wn. App. 2d 232 (2025). This note examines each issue and argues the case gives the Washington Supreme Court an opening to bring coherence to an area of constitutional law the State has left in disarray.

I.  INTRODUCTION

The doctrine of civil death has a long history in Anglo-American law. At common law, a felony conviction operated as a form of legal annihilation: property was forfeited, contracts were void, and the convicted person ceased to exist as a rights-bearing subject of the sovereign. In re Reinstatement of Walgren, 104 Wn.2d 557, 561, 708 P.2d 380 (1985). American jurisdictions have formally abandoned civil death by statute, but its practical equivalent survives in the form of collateral consequences: statutory disabilities imposed upon conviction that outlast the sentence, operate without time limit, and require no individualized review.

Washington is not exempt. Across multiple titles of the Revised Code of Washington, a convicted felon encounters disabilities touching voting, jury service, professional licensure, fiduciary capacity, and family law. Most are permanent. Most carry no restoration mechanism short of executive pardon. Washington's Legislature has nonetheless expressed a contrary intention twice: in 1961, when it enacted what is now RCW 9.96.050, providing that a certificate of discharge shall restore all civil rights lost upon conviction; and in RCW 72.09.010, which directs that punishment within the corrections system should generally be limited to the denial of liberty.

The conflict between those restoration mandates and the permanent disability scheme has never been litigated before the Washington Supreme Court in the fiduciary context. In re H.M. requires the Court to confront it.

II.  FACTUAL AND PROCEDURAL BACKGROUND

Brian Malnes served in the United States Army from 1985 to 1990 and received an Honorable Discharge. The Department of Veterans Affairs has rated him 100% service-connected disabled for his combat service. In 1991, while addicted to heroin, he was convicted of bank robbery in the United States District Court for the District of Utah. He served his full sentence, completed supervised release under the supervision of the United States Probation Office for the Western District of Washington, and has had no criminal conviction in the twenty-six years since.

H.M. is Malnes's father, a 96-year-old Air Force veteran who served as a First Lieutenant during the Korean War era. He designated Malnes as his attorney-in-fact. On April 1, 2024, he executed a sworn declaration stating that he did not want a guardianship and that he wanted Malnes as his caregiver. Malnes's domestic partner, a registered nurse of twenty-two years at Harborview Medical Center, corroborated the declaration and described Malnes's sustained caregiving history.

The Snohomish County Superior Court nonetheless appointed Private Client Fiduciary Corporation (PCF), a professional corporate entity, as H.M.'s limited guardian and full conservator on August 22, 2024. The appointment order reflected that H.M. had expressed concern about how his funds had been managed and that he wished the parties would resolve their dispute without litigation. The court acted under RCW 11.130.305(3), which permits appointment of a lower-priority guardian where doing so is in the respondent's best interest.

Division One of the Court of Appeals reached a single constitutional argument on the merits: Malnes's Eighth Amendment claim that his implied disqualification from guardianship service constituted civil death in violation of the Cruel and Unusual Punishments Clause. The court rejected it on two grounds. First, RCW 11.130.090(1)(b)(ii) preserves trial court discretion to appoint a relative with a prior conviction. Second, the record did not show the trial court had disqualified Malnes solely on conviction grounds. The court left Malnes's remaining arguments unaddressed, citing inadequate briefing and lack of standing. It awarded PCF its appellate attorney fees under RCW 11.96A.150. Reconsideration was denied June 4, 2026. Appellate counsel Corey Evan Parker, WSBA #40006, filed the Petition for Review on July 1, 2026.

III.  ISSUES PRESENTED

A.  The Eighth Amendment Framework: Mendoza-Martinez

The Court of Appeals answered the wrong question. It asked whether the trial court, in this particular proceeding, disqualified Malnes solely on the basis of his conviction. That is a factual inquiry about a judge's reasoning. The Eighth Amendment asks whether a civil disability, examined on the face of the statute, operates as punishment.

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), sets out the controlling test. Seven factors bear on whether a sanction is penal in substance: whether it imposes an affirmative disability or restraint; whether it has historically been regarded as punishment; whether it requires scienter; whether it promotes retribution or deterrence; whether the conduct it covers is already criminal; whether a legitimate regulatory purpose can be assigned to it; and whether the sanction is excessive relative to that purpose. The factors run to the statute, not to what a particular judge did or said. Id.

The Court of Appeals applied none of them. It pointed to a discretionary carve-out in RCW 11.130.090(1)(b)(ii) and stopped there. The presence of a narrow exception does not settle the Mendoza-Martinez inquiry. The question is whether the statutory scheme is penal in character, and a nominal exception leaves that question open. A rule insulating every civil-disability statute with a minor carve-out from Eighth Amendment review finds no support in Mendoza-Martinez.

RCW 11.36.021(2)(a) illustrates what the Court of Appeals left unexamined. That statute bars from trustee service any person convicted of any felony or any crime involving moral turpitude. No exception. No individualized review. No path to restoration. It operates alongside the guardianship statute's more flexible framework and forecloses fiduciary capacity through a channel the court never addressed. Whether that categorical, permanent bar satisfies Mendoza-Martinez is a significant constitutional question the Washington Supreme Court has not resolved.

Washington cases upholding firearm restrictions on felons as regulatory rather than punitive do not control here. See In re Firearm Rights of Nelson, 120 Wn. App. 470, 475, 85 P.3d 912 (2003). Firearm restrictions rest on a public-safety rationale with a well-established constitutional pedigree. A fiduciary-capacity restriction has no comparable anchor, a point the Walgren line of cases makes clear: Washington treats fiduciary capacity as something that can be restored through individualized review, which undercuts any argument that a permanent, categorical bar serves a legitimate regulatory function.

B.  Equal Protection: The Walgren Disparity

The equal protection argument is the sharpest in the petition. In Walgren, the Washington Supreme Court reinstated a disbarred attorney to the full practice of law, including fiduciary duties to complete strangers, following a federal RICO conviction and five-year sentence. The Court conducted a fact-specific rehabilitation inquiry. 104 Wn.2d at 561-62.

Malnes and Walgren share the same legally material characteristics: federal felony convictions, sentences completed under the supervision of the United States Probation Office for the Western District of Washington in Seattle, and exposure to Washington's collateral-consequence scheme. The difference is that Walgren held a bar card. An attorney-felon has access to individualized restoration review. A non-attorney felon has no comparable process. Both cases turn on the same underlying question, fitness for fiduciary trust, yet they are governed by categorically different procedures producing categorically different results.

The petition applies rational basis review. Felons are not a suspect class. See Madison v. State, 161 Wn.2d 85, 163 P.3d 757 (2007). Under rational basis, a classification must be rationally related to a legitimate governmental interest. The governmental interest at stake is protection of those subject to fiduciary relationships. That interest does not explain why an attorney-felon may manage a stranger's estate after two years of incarceration while a family member-felon may not care for his own father after twenty-six years of law-abiding life. The distinction tracks institutional preference, and the State has offered no regulatory logic that bridges the gap.

C.  Standing: The Cobb Misapplication

The Court of Appeals applied In re Guardianship of Cobb, 172 Wn. App. 393, 401-02, 292 P.3d 772 (2012), to hold that Malnes lacked standing to challenge the guardianship on behalf of H.M. The petition identifies a threshold problem with that application. Cobb addresses third-party standing, the right to assert someone else's rights. Malnes's standing derives from his own injury: as H.M.'s designated attorney-in-fact, as a priority-listed family member under RCW 11.130.305(1)(e), and as a person concretely harmed when he was passed over for a corporate guardian. The court never asked whether Malnes had standing in his own right. It folded his claims into a third-party analysis that does not govern them.

Cobb held that siblings lacked standing to vindicate an incapacitated brother's rights because a guardian protected those rights. That premise assumes the guardian's position aligns with the incapacitated person's wishes. H.M.'s April 1, 2024 declaration says the opposite: he did not want the guardianship and he wanted Malnes as his caregiver. Where the guardian's position is adverse to the ward's expressed preferences, Cobb's assumption collapses. Applying it mechanically in that setting produces results Cobb was not designed to authorize.

The constitutional backdrop is Troxel v. Granville, 530 U.S. 57 (2000), and Santosky v. Kramer, 455 U.S. 745 (1982), which recognize Fourteenth Amendment protection for liberty interests in family relationships. A son who served as his father's caregiver, was designated attorney-in-fact, and was denied preferred-guardian status under the statutory priority scheme has a cognizable interest in that denial. Whether that interest grounds appellate standing independent of any third-party analysis is a question the Court of Appeals bypassed.

D.  RAP 2.5(a)(3): The Inter-Divisional Conflict

The Court of Appeals declined to address Malnes's First and Fourteenth Amendment claims because his briefing did not meet the standards of RAP 10.3(a)(6). Division Two recently held in State v. Koch, 34 Wn. App. 2d 232, 235-36, 567 P.3d 653 (2025), that RAP 2.5(a)(3) requires courts to reach manifest constitutional errors regardless of whether they were properly preserved or briefed below. State v. Rice, 174 Wn.2d 884, 893, 279 P.3d 849 (2012), confirms that the manifest-error standard does not turn on preservation. Division One's approach in this case conflicts with both.

The consequences of that conflict extend beyond this case. Pro se litigants appear disproportionately in adult guardianship proceedings. A rule conditioning constitutional review on briefing quality that only a trained appellate lawyer can consistently produce means that constitutional violations most likely to affect unrepresented people receive the least judicial attention. The Washington Supreme Court should resolve the conflict and clarify that manifest constitutional errors in guardianship proceedings are reachable regardless of who raises them or how they brief them.

IV.  SIGNIFICANCE FOR THE PRISONER CLASS

If the Washington Supreme Court holds that Mendoza-Martinez governs post-sentence civil disabilities, it will impose for the first time a structured constitutional test on the permanent consequences that follow conviction in this State. Each disability will have to be justified as regulatory on the face of the statute. The era of consequence-stacking without constitutional accountability ends with that holding.

The restoration question has parallel weight. If RCW 9.96.050's promise is substantive and enforceable, the permanent disability provisions scattered across the RCW become constitutionally vulnerable wherever they conflict with the promise of restored civil rights. Tens of thousands of Washingtonians who completed their sentences and received certificates of discharge would have a legal basis to challenge disabilities the State has long treated as beyond question.

An equal protection holding would require that fiduciary disabilities be applied through procedures bearing rational relationship to their stated purpose. The Walgren pathway available to attorney-felons would need a non-attorney equivalent, or the distinction between the two groups would need a justification the State has never offered.

A ruling on the access-to-justice question would clarify that manifest constitutional errors in guardianship proceedings must be examined regardless of briefing quality. Family members appear without counsel in these proceedings every day. The clarification determines whether constitutional rights function in practice or only on paper.

V.  CONCLUSION

In re Guardianship/Conservatorship of H.M. began as a dispute about who should care for a 96-year-old veteran. It arrived at the Washington Supreme Court carrying questions the State has deferred for decades: whether post-sentence civil disabilities must satisfy Mendoza-Martinez, whether the Legislature's restoration promise has teeth, whether the differential treatment of attorney-felons and non-attorney-felons can survive equal protection scrutiny, and whether pro se litigants in guardianship proceedings can have their constitutional claims heard.

The Washington Supreme Court has not settled any of them. The Petition for Review presents the opportunity to do so. One in three American adults carries a criminal record. The prisoner class has been waiting for this Court to decide whether the promise of restoration is law or language. In re H.M. is the case to find out.

This case note was prepared by the Prisoner Theory Institute.

Case No. 86687-7-I  ·  Petition for Review filed July 1, 2026

Appellate Counsel: Corey Evan Parker, WSBA #40006, Appellate Counsel P.C., Seattle, WA