Civil Right to Counsel: in Re Marriage of King and the Continuing Journey

• Jurisdiction: Washington,United States
• Citation: Vol. 9 No. 1
• Publication year: 2010

§ Fall/ Winter 2010-#2. Civil Right to Counsel: In re Marriage of King and the Continuing Journey

Washington Seattle Journal For Social Justice
Volume 9, No. 1
Fall/ Winter 2010

Civil Right to Counsel: In re Marriage of King and the Continuing Journey

Deborah Perluss(fn1)

I. Introduction

In December 2007, the Washington Supreme Court decided the case of In re Marriage of King(fn2) The case held that the state does not need to provide an indigent parent with counsel at public expense in judicial proceedings that threaten her parent-child relationship-more specifically, an attorney need not represent a mother before a court can remove her as the primary caregiver of her three children. The Washington Supreme Court arrived at this conclusion, even though the mother faced a grossly uneven playing field due to her limited education, her incapacity to present an effective case, and the father having the benefit of counsel. How and why the court arrived at this conclusion is worth some examination, both to gain insight into the contextual aspects of judicial decision-making and to inform strategies for enforcing constitutional rights in general and, in particular, the right to counsel in noncriminal cases.

This article examines the King decision in light of the substantiated need for indigent representation, the right to counsel jurisprudence in noncriminal cases in Washington, and with reference to the national movement in support of defined rights to counsel in certain compelling civil cases. The article also discusses recent research of the effects on individuals and courts when litigants are unrepresented, and it identifies circumstances in which judicially-established rights to counsel may still be achieved in Washington following King. Finally, this article examines the King decision in order to arrive at some understanding of how a supreme court, which is viewed as a leader in the cause of equal justice, could fail to be persuaded by the contextual injustice that occurred in this case-one that is not an isolated occurrence in Washington courts.

First, I will briefly define the problem that is discussed in this article by referring to the overwhelming need for legal aid in Washington and some recent efforts in response to the problem. Then, I will briefly discuss the history and status of when Washington requires the provision of counsel for individuals in noncriminal cases. This is followed by a description of what happens to unrepresented individuals in courts to demonstrate that the issues being discussed have real day-to-day impacts for both litigants and the courts. This, hopefully, sets the stage for a discussion of the issues and the decision in King, followed by a discussion of recent research on whether, as a practical matter, lawyer representation has an impact on the outcome of a noncriminal case. Finally, I will discuss post-King developments and continuing efforts in Washington and nationally to advance access to justice for all persons through advocacy that promotes the right to counsel in cases that impact basic human needs and significantly affect the daily lives of individuals.

While this article necessarily discusses these issues with citation to cases, data, and other resources; the subjective arguments and speculative assertions are derived from insights, perceptions, and impressions gained from a thirty-year career as a civil legal aid attorney in Washington. Over the course of my career, I have witnessed or known of innumerable unrepresented individuals who have experienced unfair results in courts solely because a lawyer was not present to help tell their story coherently, bring out the relevant facts of their case, make a persuasive presentation, and/or inform the judge of applicable law.(fn3)

II. Defining the Problem and Compelling a Response

The need for help with noncriminal legal problems in Washington is high and mirrors the need nationally.(fn4) Certainly, legal aid programs cannot represent all low-income persons needing a lawyer in civil litigation.(fn5) Indeed, every year thousands of individuals appear in Washington courts without a lawyer.(fn6) The consequences for low-income persons (who are forced to confront legal problems that are legislatively consigned to the courts for resolution) are even more pronounced because their legal issues often involve basic human needs such as housing, sustenance, and protection from family violence.(fn7) In many cases, one party is represented by a lawyer, while the other is not.(fn8) In a high percentage of these cases, the unrepresented party loses on meritorious causes or forfeits rights that are before the court.(fn9) In addition, unrepresented litigants often fail to exercise procedural rights that would benefit their cause or give them a strategic advantage, if they only knew about the procedural right or how to raise it.(fn10) As a result, a significant number of decisions are rendered each year by judges without full knowledge of the facts or consideration of the law that applies to a particular case.(fn11) The resulting outcomes are sometimes merely erroneous, but often they are life-changing and, occasionally, even tragic.

In response to this problem, the American Bar Association (ABA) spearheaded a national movement(fn12) to consider whether, in certain noncriminal cases, the issues for litigants are so fundamental or critical to their lives and well-being that governments ought to be providing those litigants with lawyers as a matter of right when faced with adversarial judicial proceedings. In 2006, the ABA's policy-making House of Delegates unanimously approved Report and Recommendation No. 112A, adopting the Report as official ABA policy for the right to counsel in non-criminal proceedings.(fn13) The policy statement urges "federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low-income persons in those categories of proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health, or child custody, as determined by each jurisdiction."(fn14) Following the adoption of this brief policy statement, an ABA Presidential Task Force developed a statement of principles expanding on the concepts.(fn15) The principles are accompanied by a proposed Model Act to assist jurisdictions with implementing the civil right to counsel with a workable structure.(fn16) Both of these initiatives were adopted as official ABA policy at the August 2010 meeting of the House of Delegates.(fn17)

III. Civil Right to Counsel in Washington

In Washington State, the equal justice community has long focused on efforts to expand the right to counsel in civil proceedings. Early cases established a right to counsel for parents in a few specific circumstances, such as juvenile court proceedings where the state sought to impair or terminate parental rights,(fn18) when a private civil contempt proceeding could result in the imprisonment of a party,(fn19) and when the competency of a lawyer is at issue in disciplinary proceedings that could impair their ability to practice law.(fn20) More recently, courts have held that counsel must be provided to a child in truancy hearings(fn21) and to protect parental rights in a nonparental custody proceeding that flows from a permanency plan process for a child who is a dependent ward of the juvenile court.(fn22)

Washington also affords a civil right to counsel by statute in limited circumstances.(fn23) Washington provides a discretionary right to counsel for petitioners who seek a sexual assault protection order if the respondent appears with counsel,(fn24) as well as for a child over the age of twelve in a dependency proceeding.(fn25) In 2007, the Washington Supreme Court also adopted a general court rule, GR 33, which affords the opportunity for indigent persons with disabilities to seek appointment of counsel when needed, as a reasonable accommodation to ensure meaningful access to the justice system.(fn26)

Despite the expansion of the above-established rights to counsel in civil proceedings, Washington courts have still not extended rights to counsel when judicial proceedings have threatened a party's basic needs. These include proceedings to evict one from rental housing,(fn27) to obtain economic governmental benefits,(fn28) and most recently, to protect parental rights in a private custody/parenting plan proceeding as between two parents.(fn29)

As discussed below, there are cases currently pending in the Washington courts that will address the right to counsel in other civil contexts post-King. In addition to Bellevue School Dist. v. E.S.(fn30)-which involves the right to counsel for children in truancy fact-finding proceedings-another case, In re A.R./D.R., will address a child's right to counsel in a parental rights termination proceeding in juvenile court.(fn31) In both of these cases, the trial courts had not provided counsel to children, resulting in their loss of rights to education and familial relations.

In all of these cases, as in King, the unrepresented parties faced a significant imbalance of power in the judicial process, with either the superior power of the state, school district, or an otherwise represented opposing party proceeding against them. The imbalance of power is not and cannot be cured by judges who struggle in such cases to accommodate the unskilled...