Should poor get free lawyers in custody cases?

Divorce battles and constitutional law normally occupy opposite ends of the legal spectrum.

That will change today when the state Supreme Court examines whether a Snohomish County judge violated state and federal law by failing to provide an attorney to an indigent woman going through divorce proceedings in 2006.

The case is receiving close scrutiny across the country, since a ruling in plaintiff Brenda Leone King's favor could open the door to costly new requirements for state and local governments to provide lawyers for poor citizens involved in a wide range of civil disputes.

People charged with crimes are routinely appointed public defenders if they cannot afford an attorney. Many states -- including Washington -- appoint lawyers in civil cases where the state is involved, such as if the state is seeking to revoke parents' custody of their children.

King contends that she lost custody of her three children to Michael King, her former husband, because she could not afford an attorney to represent her during a five-day trial before Snohomish County Superior Court Judge George Bowden.

Michael King sought a divorce from Brenda King in June 2004 and custody of the couple's three children. Michael King was represented by an attorney throughout the proceedings. Brenda King represented herself because she could not afford a lawyer.

Bowden granted primary residential custody of the three children to Michael King, though Brenda has limited custody on weekends.

Bowden denied Brenda King's subsequent request for a new trial, which she sought on the grounds of her lack of legal counsel.

King now wants the state Supreme Court to reverse Bowden's decision and order a new trial, this time with a court-appointed lawyer to represent her.

Ironically, King now has an abundance of lawyers supporting her case.

Three attorneys from Perkins Coie, one of Seattle's oldest and most high-powered law firms, are leading King's case on a pro bono basis.

"What stands out about this case is how much was at stake at trial for Brenda King, who essentially risked losing all time with her children," said Katie O'Sullivan, who will argue the case before the Supreme Court. "And how complicated it is for someone without a law degree to present that story in any meaningful way" in a courtroom.

Regional and national legal organizations have filed briefs supporting King's position.

For citizens who cannot afford lawyers, "meaningful access to the court without legal representation is as illusory as if the building itself were physically inaccessible to them," the Washington State Bar Association declared.

The National Coalition for a Civil Right to Counsel, based in Baltimore, wrote that "the right to counsel for civil litigants is a fundamental principle that extends back centuries before the United States existed."

Bradley Crosta, a Seattle attorney who represents Michael King, said that from his perspective the case is "still very much a private dispute between two parents in a divorce action."

Still, Crosta knew that the stakes rose when Brenda King sought a new trial based on Judge Bowden's refusal to provide her a court-appointed lawyer. "It was obvious if [Brenda King] succeeded, this was going to cost the state a huge amount of money," Crosta said.

Thus, Crosta alerted the Washington Attorney General's office, which will argue against a new trial for King before the Supreme Court.

"The state's position is there is no constitutional right to counsel" in a child custody battle between two private individuals, said Carol Murphy, a lawyer in the Attorney General's office who will argue the state's position before the high court.

The state does not dispute that there is a large, unmet need for legal services for people who cannot afford them, Murphy said.

But she said it is up to the state Legislature, not the courts, to decide how to fill that need, and she noted that the Legislature has budgeted $22.5 million for civil legal aid in 2008 and 2009.

David Bowermaster: 206-464-2724 or dbowermaster@seattletimes.com