Washington has a rich history of landmark decisions rooted in the lore of pro bono litigation. Whether it’s fighting to preserve the balance between security and civil liberties, working on post-conviction inmate petitions, pursuing habeas corpus actions and complex civil rights matters or redefining parenthood through the expansion of rights, Washington’s rich pro bono history is undeniable.
This history spans decades. This is not a comprehensive review, but a collection of cases that exemplify the impact pro bono work has had on Washington law and its citizens.
Sex Discrimination in Athletics
In 1979, the Northwest Women’s Law Center (NWWLC) litigated a case that forever changed the landscape of collegiate sports. The NWWLC filed a class action suit on behalf of women athletes and coaches at Washington State University, charging the school with sex discrimination in its intercollegiate athletics program.1 Although the court ruled that WSU had discriminated and ordered WSU to divide its athletic budget more equitably, it did not include football in its remedy.
Nearly eight years after the suit was filed, the Washington Supreme Court ruled that the trial court erred in excluding football in determining an equitable distribution of opportunities, scholarships and other funds.2 As a result, WSU received additional state funding to foster gender equity in its athletic programs.
Protecting Access to Clinics
In 1988, a group called “Operation Rescue” staged anti-abortion demonstrations in King, Yakima and Spokane counties. The group blockaded entrances to clinics and refused to let people in or out.
Attorneys at Stoel Rives, in collaboration with the NWWLC, filed a lawsuit against the group’s Washington organizers, seeking and obtaining injunctive relief to stop the group and others from trespassing, blocking access to and from medical clinics, and harassing people leaving and entering the clinics.3 Today, women can go to clinics without the fear of encountering a mob of protesters and can take advantage of their right to choose.
Fighting for the Mentally Ill
From 1998 to 2003, attorneys at Davis Wright Tremaine were co-counsel with the Washington Protection and Advocacy System (WPAS) on three federal, pro bono class action lawsuits against the State for civil rights violations at state mental health institutions. Each case sought relief for developmentally disabled patients who were allegedly denied adequate care and treatment, routinely misdiagnosed, improperly medicated and had little or no hope of recovery and return to the community.
This successful advocacy improved living conditions for the mentally ill in three key ways: 1) the State signed a settlement agreement staying the case in exchange for implementation of a three-phase reform program;4 2) deplorable conditions were ordered to be immediately ameliorated;5 and 3) a tentative settlement was reached in 2002 that required the State to import key aspects of these programs to Eastern State Hospital.6
As a result, hundreds of current patients, and potentially thousands of future disabled patients, have benefited. In addition, several named plaintiffs were able to return to their communities and live outside the hospital setting, something that would never have occurred without this litigation.
National Security and Civil Liberties
In November 2001, Salim Hamdan was captured at a roadblock in Afghanistan and turned over to the United States.7 Despite the fact that he had not been charged with a crime, he was placed in solitary confinement.
A team of Perkins Coie attorneys took on his case in 2004, by which time Hamdan had been detained at Guantánamo Bay for two years.8 The habeas corpus action eventually was heard by the U.S. Supreme Court, which ruled in Hamdan’s favor.9
However, after the Supreme Court’s decision was issued, Congress passed the Military Commissions Act of 2006 establishing a new framework for military commissions, and in early 2007 Hamdan was charged with conspiracy and providing support for terrorism under the new law.10 The case is set for trial in July and, if it goes forward, it will be the first case tried under the Military Commissions Act and the first war crimes trial undertaken by the United States since World War II.
Redefining Parenthood
In 2001, a cutting-edge case was brought by Seattle attorneys Patricia Novotny, Janet Helson of Skellenger Bender and Nancy Sapiro of the Northwest Women’s Law Center on behalf of Sue Ellen Carvin, a lesbian, non-biological parent, who was denied access to her daughter by her former partner of 12 years.11 The women had decided together to have the child and had raised her as co-parents and partners for six years. However, when the couple’s relationship dissolved, the biological mother limited her partner’s contact with their daughter, sparking litigation over visitation rights.12
The Washington Supreme Court issued a landmark decision in 2005 when it recognized de facto parenthood status and set forth the elements for proving such a claim.13
Assuring Access to Legal Service
In 2003, Perkins Coie lawyers defended the Legal Foundation of Washington (LFW) in a case that challenged the constitutionality of the Washington Interest on Lawyer Trust Account (IOLTA) program.14 Each year, IOLTA programs generate tens of millions of dollars throughout the United States. The LFW and organizations like it use the funds earned from interest on pooled IOLTA accounts to provide grants for free civil legal services for the poor.
In their challenge, the plaintiffs claimed that the process of pooling funds had, in effect, taken their property. Perkins Coie lawyers representing LFW argued that the rules of IOLTAs would not permit the plaintiffs’ property to be taken because any funds that were large enough or held long enough to earn interest would not be included in the program. Ultimately, the U.S. Supreme Court agreed, resulting in a victory for IOLTA programs across the country and for the impoverished clients whose legal needs they fund.
The Duty of Public Defense
In 2004, The Seattle Times published “An Unequal Defense: The Failed Promise of Justice for the Poor” — a five-part series revealing the shockingly deficient public defense system in Grant County.15 That same year, a team of Perkins Coie attorneys16 filed a class action lawsuit challenging the constitutionality of the public defense system in Washington, particularly in relation to how it was implemented in Grant County. The lawsuit alleged that Grant County failed to meet its duty to provide indigent, felony defendants with effective assistance of counsel.
In 2005, a settlement was reached under which Grant County agreed to reduce excessive caseloads, guarantee that public defense lawyers are qualified to handle serious felony cases, and provide adequate funding for investigators and expert witnesses. The county also agreed to have the terms of the settlement monitored for six years, with financial penalties if it failed to meet its obligations.17
Enforcing the Hague Convention
In 2005, the second Hague Convention case ever filed in the Western District of Washington was litigated by attorneys at DLA Piper. Its client had not seen his son since 2003, when his wife removed the child from Mexico without his consent. The National Center for Missing and Exploited Children (NCMEC) located the child in late 2004 and DLA Piper agreed to take on the case and seek the return of the boy pursuant to the Hague Convention. According to an NCMEC representative, it was the most complicated Hague Convention case he had ever seen.
In 2007, the court ruled in the father’s favor, ordering that his son be returned.18 The child went home to Mexico, giving the father a hug and a kiss when they met at the airport. According to the father, the DLA Piper team changed his life forever.
Newly Discovered DNA Evidence
In 2007, Heller Ehrman attorneys litigated what would become the first case in which a criminal conviction was overturned based on newly discovered DNA evidence. They worked with the Innocence Project at the University of Washington School of Law to overturn the rape and burglary conviction of a man who had already completed a 10-year prison sentence.
The DNA evidence was retrieved after the conviction from duct tape that had been used to bind the victim and the DNA expert testified it could have come only from the rapist. Because the DNA did not match the client’s, the trial court ruled that it was more likely than not that the State would not have been able to sustain its burden of proof had the evidence been presented at trial. The Court of Appeals affirmed.19
The case was difficult because the client, then 21 years old, “confessed” after a nine-hour interrogation by police. Nevertheless, he was cleared by expert testimony regarding forced confessions and DNA.
This case, like the others, is a poignant reminder of the difference pro bono legal representation can make in the lives of indigent persons. These are only a few of the hundreds of headline-making pro bono matters that have been litigated and have made history in Washington.
Our state has a strong record of upholding the ethical obligations of our profession, but if history has taught us anything, it is that the fight for equal justice and human rights is an ongoing, uphill battle. It is up to attorneys to take on these cases so that we can continue making pro bono history and a profound difference in people’s lives, and — ultimately — bettering the rule of law.
1 WSU was charged with sex discrimination in its intercollegiate athletics program under the state ERA and RCW 49.60.
2 Blair v. Washington State Univ., 108 Wn.2d 558, 740 P.2d 1379 (1987).
3 See Aradia Women’s Health Ctr. v. Operation Rescue, 929 F.2d 530 (9th Cir. 1991). Over about a two-year period, attorneys sought and obtained TROs, injunctions and orders of civil contempt, and then defended their successes in the Ninth Circuit. With persistence, they were able to stop the practice until legislation was passed making it illegal to block access.
4 See Allen v. Western State Hospital.
5 See Rust v. Western State Hospital.
6 The agreement here incorporated significant parts of the relief in Allen and Rust at Western State Hospital.
7 “Gitmo detainee allowed to contact top suspects,” Michael Melia, Associated Press, 2008.
8 Perkins Coie attorneys Harry Schneider, Charles Sipos and Joe McMillan led the defense and worked with Navy Lt. Cmdr. Charles Swift and the Georgetown University Law Center. For their work, the Perkins attorneys were honored by the KCBA as the outstanding lawyers for 2007.
9 The court found that the military tribunals established by President Bush to try enemy combatants and detainees held at Guantánamo Bay were not authorized by Congress and violated both domestic and international laws, including the laws of war and the Geneva Conventions. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
10 Perkins Coie continues to represent Hamdan in his defense before the Military Commission at Guantanamo Bay.
11 “Carvin: Expansion of Parental Rights Grounded in Equity, Child’s Best Interest,” Gene Barton, KCBA Bar Bulletin, December 2005, at http://www.kcba.org/scriptcontent/KCBA/barbulletin/archive/2005/05-12/article1.cfm.
12 Id.
13 In re the Parentage of L.B., Carvin v. Britain, 155 Wn.2d 679, 122 P.3d 161 (2005).
14 See Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003).
15 “Attorney profited, but his clients lost,” Ken Armstrong, Florangela Davila and Justin Mayo, Seattle Times, 2004.
16 Perkins Coie worked with ACLU of Washington, Columbia Legal Services and others.
17 Best v. Grant County, No. 04-2-00189-0(2005), http://www.sado.org/publicdefense/2005-11-02—Settlement%20Agreement—Minus%20 exhibit.pdf.
18 Jimenez v. Lozano, Slip Op., 2007 WL 162724 (W.D. Wash. 2007).
19 In re Bradford, 140 Wn. App. 124, 165 P.3d 31 (2007).
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