The facts reasonably demonstrated that Brenda King, who could not afford her own attorney, did not stand a chance in a custody battle with her soon-to-be ex-husband, who had retained an experienced trial lawyer. On appeal, her pro bono counsel asserted a constitutional right to the appointment of counsel at public expense in a dissolution proceeding.
The Washington Supreme Court, in a 7-2 decision handed down on December 6, disagreed, finding no such relief within the bounds of the Washington Constitution — by most accounts, an unfortunate result, given the circumstances.
Justice Charles Johnson, writing for the majority, engaged in a cogent constitutional analysis, distinguishing two earlier cases in which the Court found a right to counsel in family-related matters: In re Welfare of Luscier1 and In re Welfare of Myricks.2 In Luscier, the Court held in the context of a State-instituted parental termination proceeding that “indigent parents possess a due process right to appointment of counsel at public expense,” recognizing “the fundamental nature of the parent-child relationship, a relationship that was entitled to constitutional significance.”3 In Myricks, the court extended this reasoning to State-instituted dependency proceedings.4
King’s situation did not rise to the same level, Justice Johnson wrote, particularly given the “fundamental nature of parental rights” at issue in custody and dependency proceedings, and the absence of a state interest or role in her case.5 “Dissolution proceedings,” he wrote, “are generally a private action between spouses resulting in termination of the marriage.” Parenting issues are decided under RCW ch. 26.09.6
Having determined that “fundamental constitutional rights are not implicated in a dissolution proceeding,” the Court nonetheless found the “interests, while not fundamental, … significant enough to analyze the constitutional claims.”7 King asserted a right to state-funded counsel under three provisions of the Washington Constitution: Article I, Section 3;8 Article I, Section 10;9 and Article I, Section 12.10
Addressing Article I, Section 10 first, the Court analyzed King’s claim that the denial of state-funded counsel denied her right of access to the courts under Tennessee v. Lane.11 King also relied upon Bullock v. Roberts, in which four petitioners, each an indigent plaintiff in a divorce action, sought a waiver of the filing and sheriff service fees in King County Superior Court.12 On appeal, the Supreme Court granted a writ of mandamus ordering the presiding judge to exercise discretion “consistent with the facts” in deciding when and how to waive costs. At the same time, the Court found, “Full access to the courts in a divorce action is a fundamental right.”13
However, it declined to extend that holding to King’s case. “The mere fact that ‘access’ is a linguistically broad term does not bring the petitioner’s inability to obtain counsel within the authority of Lane and Bullock,” the Court stated. In Lane, access was denied by physical barriers; in Bullock, by court-imposed fees. “It is more than an insignificant linguistic leap to equate that barrier to access with a right to publicly funded legal representation.”14 Citing Doe v. Connecticut, the majority agreed with the Connecticut Supreme Court’s finding that an “open courts” provision “was never intended to guarantee the right to litigate entirely without expense to the litigants.”15
The Court next turned to King’s due process argument under Article I, Section 3 and the Fourteenth Amendment to the U.S. Constitution, which “require the State to provide due process before depriving an individual of fundamental liberty interests.”16 Citing Luscier and Myricks, King asserted that Article 1, Section 3 “is more protective of the civil right to counsel than the federal constitution.”17
Engaging in a six-part analysis under State v. Gunwall18 for determining “whether a state constitutional provision extends broader rights than the federal constitution,” the Court found that Article I, Section 3 did not do so in King’s case.19 The right to counsel, the Court noted, “extends to cases in which ‘a fundamental liberty interest … is at risk.’ … [T]he petitioner’s fundamental liberty interest is not at stake here.”20
Finally, King found no relief under equal protection principles. Article I, Section 12 of the Washington Constitution, the Court said, did not apply where no law — particularly the dissolution statutes — conferred a privilege to a class of citizens.21
The petitioner is not denied, as a result of the statute’s application, a privilege to which she would have been entitled but for government interference. Nothing affirmatively done by the State in this matter facilitated the respondent’s litigation or hindered the petitioner’s ability to litigate.
In the end, the Court agreed that the ultimate solution may lie in the Legisla-ture, stating: “It may be that the legislature should expend resources to address the complexity that often accompanies dissolution proceedings. … However, the decision to publicly fund actions other than those that are constitutionally mandated falls to the legislature.”22
1 84 Wn.2d 135, 524 P.2d 906 (1974).
2 85 Wn.2d 252, 533 P.2d 841 (1974).
3 King v. King, 162 Wn.2d 378, No. 79978-4 (Dec. 6, 2007), slip op. at 4.
4 Id. It is worth noting that the holdings of these cases were later codified in RCW § 13.34.090.
5 Id. at 6, 8–9.
6 Id. at 6–7.
7 Id. at 11.
8 “No person shall be deprived of life, liberty, or property without due process
of law.”
9 The so-called “open courts clause” provides: “Justice in all cases shall be administered openly, and without unnecessary delay.”
10 “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.”
11 541 U.S. 509, 533, 124 S. Ct. 1978 (2004); slip op. at 12. Tennessee v. Lane established Congress’s authority under the Fourteenth Amendment to enact Title II of the Americans with Disabilities Act. Slip op. at 13–14
12 84 Wn.2d 101, 524 P.2d 385 (1974); slip op. at 14.
13 Slip op. at 15.
14 Id.
15 216 Conn. 85, 98, 579 A.2d 37 (1990); slip op. at 16.
16 Slip op. at 16–17.
17 Id. at 17.
18 106 Wn.2d 54, 720 P.2d 808 (1986).
19 Slip op. at 17–20.
20 Slip op. at 21 (quoting In re Dependency of Grove, 127 Wn.2d 221, 237, 897 P.2d 1252 (1995)). Similarly, the Court rejected King’s due process argument under the Fourteenth Amendment, under which “there is a presumption that civil litigants do not have a right to appointed counsel unless their physical liberty is at risk.” Slip op. at 23. The dissent, authored by Justice Barbara Madsen, in which Justice Tom Chambers joined, disagreed with the majority’s due process analysis: “Ms. King’s struggle to represent herself in this case demonstrates the legal hurdles that arise every day in courtrooms across Washington, showing the importance of counsel to a parent in a dissolution proceeding seeking to secure her fundamental right to parent her children. The majority’s decision does not begin to address the obstacles an indigent parent encounters when she is unrepresented by counsel, nor does it realistically assess the loss she faces. … A parent’s interest in the care, custody, and nurture of her child is a fundamental liberty interest protected under article I, section 3. Luscier, 84 Wn.2d at 139. Accordingly, … Ms. King’s interest at stake requires that counsel be appointed at public expense.” Dissent slip op. at 1–2. See also Myricks, 85 Wn.2d at 254 (cited by dissent at 3).
21 Slip op. at 25.
22 Slip op. at 26–27.
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