In Re the Marriage Of: Michael Steven King, Respondent, v. Brenda Leone King, Appellant, and State of Washington, Involved Party

• Publication year: 2010
• Citation: Vol. 9 No. 1

§ Fall/ Winter 2010-#7. In re the Marriage of: MICHAEL STEVEN KING, Respondent, v. BRENDA LEONE KING, Appellant, and STATE OF WASHINGTON, involved party

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

No. 79978-4

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In re the Marriage of: MICHAEL STEVEN KING, Respondent, v.
BRENDA LEONE KING, Appellant,
and
STATE OF WASHINGTON, involved party

Amicus Curiae Brief of International Law Scholars in Support of Appellant

Professor Martha F. DavisProfessor Raven Lidman

The Program on Human RightsInternational Human Rights Clinic

and the Global EconomyRonald A. Peterson Law Clinic

Northeastern School of LawSeattle University School of Law

400 Huntington Avenue1112 E. Columbia Avenue

Boston, MA 02115Seattle, WA 98122-4340

CONTENTS

Identity and Interests of Amici Curiae.................................................. 187

Summary of Argument......................................................................... 187

Argument.............................................................................................. 188

I. The Persuasive Value of International and Foreign Law is Well-Established, and U.S. Courts Have Frequently Looked to Such Sources When Adjudicating Domestic Rights ................. 188

II. Publicly Provided Lawyers for Low-Income People in Non-Criminal Matters is a Robust Concept Elsewhere in the World....................................................................................... 191

A. International Human Rights Treaty Law in Europe Requires Signatory States to Provide Low-Income Persons Representation Through a Lawyer in Civil Matters ..................................................................... 191

B. The Right to a Publicly-Funded Civil Lawyer Has a Long History in Europe ................................................. 193

C. Differing Legal Traditions and Rationales All Lead to the Same Right to a Publicly-Funded Civil Lawyer for the Indigent ................................................................. 194

D. The Scope of the Right Under the European Convention of Human Rights is Comprehensive for Low-Income Individuals........................................................................ 194

III. States Have a Special Role in Implementing the Nation's International Human Rights Obligations ..................................... 196

Conclusion ............................................................................................ 198

Appendix A: Council of Europe Member Country Specific Information on the Scope of the Right to Free Lawyers for Low-Income People in Civil Matters ................................................... 199

Appendix B: Council of Europe Member States ..................................204

Identity and Interests of Amici Curiae

Amici curiae are law professors, international law scholars, and legal clinics that focus professionally on international human rights law. There is growing recognition across the world that access to justice and a fair trial require parties to have counsel, and governments must provide lawyers to indigent people who could not otherwise be represented. Amici have special familiarity with this strongly persuasive body of authority and urge the court to consider it to determine that Ms. King has a right to a publicly provided lawyer in her dissolution case under the constitutions of Washington and the United States. The interests of amici curiae are described in greater detail in the motion for leave to file.

Summary of Argument

The status of the right to counsel under transnational law(fn1) is highly relevant to this Court's consideration of the scope of the right to counsel in Washington. The persuasive value of such law has been accepted by U.S. courts at all levels. These legal authorities are particularly relevant to state court jurisprudence, since our federal system accords states the primary responsibility for fulfilling many of our international human rights obligations.

In this instance, the value of looking to foreign and international law is especially relevant. It was a family law case in which the European Court of Human Rights (ECtHR) made the landmark decision that a "fair trial" often may require the assistance of counsel. Airey v. Ireland, 32 Eur. Ct. H.R. (ser. A) (1979).(fn2) That decision reflected the jurisprudence of two-thirds of the then member states of the Council of Europe (COE).(fn3) The right to publicly provided civil legal counsel extends back centuries in some countries and across diverse legal, cultural, and political traditions. Forty-nine member countries of the COE are implementing Airey and its progeny.(fn4) Amici commend to this court the respect accorded the right to civil counsel within our common law tradition and within other legal systems.

Argument

I. The Persuasive Value of International and Foreign Law is Well-Established, and U.S. Courts have Frequently Looked to it When Adjudicating Domestic Rights

Both federal and state courts frequently draw on principles of transnational law to inform and illuminate domestic legal issues. Indeed, the Declaration of Independence explicitly notes the new nation's desire to pay "decent respect to the opinions of mankind." The Declaration of Independence para. 1 (U.S. 1776).(fn5) By examining relevant law from other jurisdictions in the course of resolving domestic legal issues, courts in the United States continue to pay this "decent respect," while at the same time enriching and strengthening our domestic jurisprudence.

Judicial recognition of transnational law's role in informing American jurisprudence is especially clear in areas that touch on due process rights. For example, in Roper v. Simmons, the U.S. Supreme Court examined the juvenile death penalty. Writing for the majority, Justice Kennedy looked to the opinions of other nations as persuasive authority. Responding to the dissenters who questioned this approach, Justice Kennedy opined that "[i]t does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom." 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). Roper was not an aberration; the Supreme Court has frequently looked to the laws and opinions of other nations in determining issues pertaining to the rights guaranteed by the Eighth and Fourteenth Amendments of the Constitution.(fn6) As the Supreme Court has found in these opinions, international and foreign law rulings help illuminate the ramifications of different solutions to similar legal problems.

In addition to the U.S. Supreme Court's majority opinions exhorting the value of comparative legal analysis, individual justices have also embraced transnational approaches in their judicial opinions and public statements. For example, Justice Ginsburg has noted the value of judicial decision making that takes into account the decisions and opinions of international law and foreign jurisdictions. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 344, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003) (Ginsburg, J., concurring).(fn7) Likewise, Justices Breyer and Stevens have found both comparative and international law materials to be valuable aids to constitutional interpretation.(fn8)

State appellate courts, including Washington courts, have demonstrated a similar interest in looking to transnational sources to illuminate domestic legal questions. For example, in 1973, the Washington Supreme Court in Eggert v. Seattle, 81 Wn.2d 840, 505 P.2d 801 (1973), examined Seattle's one-year durational residency requirement on applicants for civil service positions. In addition to citing the Universal Declaration of Human Rights (UDHR) to support its holding that this requirement violated the state constitution, the decision also cited the role of the right to travel under the law of England as a tool to assessing its significance under Washington state law. Id. at 841.(fn9)

Sister courts in nearby jurisdictions have also been active in developing comparative approaches to aid in resolving domestic legal issues. California courts have repeatedly cited transnational law. For example, the UDHR was cited by the California Court of Appeals in in re Barbara White, 97 Cal. App. 3d 141 (1979), in support of its...