Justices mull divorce counsel

OLYMPIA – In a criminal case, as police have told countless suspects, you have the right to an attorney, even if you can’t afford one.

Should that apply to your divorce lawyer, too?

Attorneys for a mother of three on Thursday asked Washington’s Supreme Court to recognize that right, arguing the state can’t keep divorce confined to the courts without ensuring legal counsel.

Justices aren’t expected to rule for months, but legal experts are watching the case closely. No other state’s high court or Legislature has recognized a right to government-subsidized divorce lawyers, attorneys said.

In a lively hearing Thursday, Supreme Court justices frequently interrupted lawyers for both sides, often trying to define a key issue: Whether a private divorce case involves any state action that would require free legal help.

Attorney Katie O’Sullivan said her client, Brenda King, lost her constitutional right to a fair trial when a judge failed to ensure she had proper legal help.

The state has a duty to guarantee access to legal help, O’Sullivan said, because the government requires complex divorce and child custody cases to be decided in court, unlike other civil matters that can be settled privately.

“This is not a purely private dispute,” she said.

Washington state subsidizes legal help for some civil actions, such as child dependency and parental rights termination cases.

But Carol Murphy, a deputy solicitor general representing the state, said that principle doesn’t justify extending free lawyers to poor people in private custody disputes.

There is no overt state action infringing on Brenda King’s rights in her divorce or custody case, as there would be in a case where the state was terminating a parent’s rights.

“The provision of taxpayer-paid counsel in that case is not constitutionally mandated, and therefore it is for the Legislature to decide,” she told the court.

The case sprang from Brenda and Michael King’s divorce, which began in 2004 in Snohomish County. The couple were married for 10 years and have three children, now aged 12, 10 and 7.

Brenda King initially retained a lawyer, but could not afford to keep paying the legal bills and eventually handled the proceedings herself. O’Sullivan’s firm is handling the appeal for free.

Michael King’s lawyer, Bradley Crosta, asked the court Thursday not to subject the couple’s children to another tumultuous divorce trial.