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King v. King (Amicus Brief)

The Brennan Center filed an amicus brief in this case is support of a right to counsel claim by an indigent parent seeking child custody.

Published: March 21, 2007

In Brief – Brenda King, the primary caregiver of her three children, lost a custody battle with her husband, Michael King, after the Superior Court of Snohomish County, Washington refused to appoint counsel for Ms. King.  Unable to afford a lawyer, Ms. King was severely disadvantaged by having to appear pro se; due to Ms. King’s lack of familiarity with the law, evidence against her that should have been rendered inadmissible was allowed to unjustly affect the Court’s decision.  Arguing on behalf of Ms. King, the Brennan Center filed an amicus brief asserting that the Court had violated Ms. King’s right to appointed counsel, as guaranteed by the Washington State Constitution, and her right to a fair trial.

Procedural History – In January 2006, after refusing to appoint counsel for Ms. King, the Superior Court of Snohomish County granted custody of the children to Mr. King.  Following that decision, Ms. King filed for a new trial and requested that counsel be appointed at public expense.  The Superior Court denied the motion.  On appeal, the Court of Appeals of the State of Washington sided with the lower court, dismissing Ms. King’s claim that the lower court had violated her constitutional rights by failing to provide counsel.  Ms. King then appealed her case to the Supreme Court of Washington State.  On May 31, 2007, the Supreme Court ruled that the state’s constitutional obligation to provide counsel in civil cases does not extend to cases of divorce.

Question Presented – Whether the Washington Constitution requires courts to appoint counsel for litigants unable to afford or obtain pro bono counsel in cases where basic human needs are at stake.

In Detail – For the ten years that Michael and Brenda King were married, Ms. King was the primary caregiver for their three children.  When they divorced, Mr. King sought to become the primary residential parent for the Kings’ three children.  Ms. King could not afford private counsel in the custody case and sought, but was unable to obtain, pro bono legal counsel through local legal services and legal aid organizations.  Ms. King repeatedly informed the court that she required appointed counsel, noting in several declarations and pleadings that she could not obtain a lawyer because she could not afford one.  

When the Superior Court of Snohomish County (Washington) denied her requests for counsel, Ms. King was compelled to argue her case pro se, putting her at a severe disadvantage.  Though the Court tried to explain how to admit exhibits, hearsay rules, cross-examinations procedure, and what evidence the court can consider, Ms. King, with little formal education, was unable to follow the judge’s instructions.  The Court, concerned about the amount of time the case was taking because of Ms. King’s lack of familiarity with courtroom procedure, also moved to limit her time.  Because of this, some highly relevant evidence never came before the Court, including the testimony of witnesses that would have called Mr. King’s custodial fitness into serious question.

The Superior Court’s judgment removed Ms. King from her primary parenting role and severely limited her visitation time.  The Court also ordered Ms. King, who had been unable to afford her own attorney, to pay the costs of Mr. King’s private attorney.

On a motion for a new trial and appointment of counsel at public expense, the Superior Court of Snohomish County acknowledged that Ms. King was at an extreme disadvantage without a lawyer but concluded that it was powerless to appoint counsel.  The Washington Constitution guarantees meaningful access to the courts for all citizens stating, “Justice shall in all cases be administered openly, and without unnecessary delay” (Const. Art. I, §10). However, the Court ruled that the right to counsel does not extend to cases of marital dissolution or divorce.

Ms. King appealed her case to the Court of Appeals of the State of Washington.  In a brief submitted on March 21, 2007 in the appellate court and signed by retired Washington state court judges, the Brennan Center urged the Court to reverse the lower court’s decision denying a retrial.  The brief argued that to fulfill guarantees of equal justice, courts must appoint counsel where basic human needs, including child custody, are at stake.  By not appointing Ms. King counsel, the brief contends, the Superior Court failed to give Ms. King a fair trial.

The brief argued that it is evident that indigent litigants are not receiving the same quality of justice as those able to afford their own counsel, and that those unable to provide their own counsel are deprived of meaningful access to the courts.  The ABA has recognized the need for appointed counsel for indigent litigants when basic human needs are at stake.  In custody, domestic violence and housing court cases, evidence demonstrates that pro se litigants regularly lose cases they would likely win with the help of counsel.  The Washington Constitution’s guarantee of equal justice is rendered meaningless if those unable to afford a lawyer in high stakes cases are forced to litigate without representation.

Despite the costs of appointed counsel to the state, not appointing counsel carries high state and society costs as well.  In addition to the harms created by failing to administer justice fairly, these costs may include the extra time required of judges and judicial staff to guide pro se litigants and the burden of litigating cases that would likely have been settled had both parties been represented by counsel.

Unfortunately, both the Court of Appeals and the Supreme Court sided with the county Superior Court’s ruling.

The Brief was signed by retired Washington state court judges Robert Alsdorf (Superior Court of King County), Paul Bastine (Superior Court of Spokane County), Harriet Cody (Superior Court of King County), Michael Donohue (Superior Court of Spokane County), Richard Guy (former Chief Justice of the Supreme Court of Washington State), Donald Horowitz (Superior Court of King County), Charles Johnson (Seattle Municipal Court, Superior Court of King County), J. Dean Morgan (Court of Appeals Division II), James Murphy (Superior Court of Spokane County), John Riley (Superior Court of King County), Richard Schroeder (Superior Court of Spokane County), Steven Scott (Superior Court of King County), and Gerard Shellan (Superior Court of King County)