In re the Marriage of King

¶1

This case involves the issue of whether an indigent parent has a constitutional right, primarily under the Washington State Constitution, to appointment of counsel at public expense in a dissolution proceeding. The constitutional claims are primarily based on article I, section 3; article I, section 10; and article I, section 12 of the Washington State Constitution. During a five day trial, the appellant, Brenda Kang, acted pro se and the respondent, Michael King, was represented by counsel. *382At the trial’s conclusion, the superior court entered a parenting plan granting primary residential care of the children to the father-respondent. The plan granted visitation rights to the appellant-mother. The appellant then obtained assistance of counsel and filed a motion for a new trial, a motion that the trial judge denied. We granted direct review of that decision and affirm.

FACTS

¶2 Brenda and Michael King were married for approximately 10 years and had three children. During the marriage, the appellant was the primary at-home caregiver for their children. In September 2004, the parties separated and the respondent filed for dissolution of the marriage. He sought to become the primary residential parent for their three children.

¶3 The respondent was represented throughout the proceedings by private counsel. While the appellant had counsel for part of the proceedings, at trial she was unrepresented and proceeded pro se.

¶4 The trial court awarded the respondent primary residential care of the children and decision-making authority. The appellant was awarded unsupervised visitation time on alternating weekends, four weeks of vacation each summer, and school spring break in odd numbered years. She also received authority to make day to day decisions when the children were with her and reasonable telephone contact. Clerk’s Papers (CP) at 250-52, 254-56.

¶5 Following trial, Ms. King obtained counsel. The attorney appeared and moved for a new trial and requested that counsel be appointed, at public expense, to represent King.1 *383The superior court denied the motion. The court explained that the legislature had not provided funding for counsel. The court also cited its lack of authority to appoint an attorney without compensation. Ms. King appealed. We granted direct review.2

ANALYSIS

¶6 Before proceeding to an analysis of the constitutional claims presented, it is necessary to define the nature of the interest implicated in this case. Defining or determining the interest involved will guide the constitutional analysis and determination.

¶7 The appellant claims her fundamental parental liberty interest is at stake in a dissolution proceeding and that the court order deprives her of the care, custody, companionship, and control of her children. To support her argument, appellant relies on, and cites to, several of our cases for support. In In re Welfare of Luscier, 84 Wn.2d 135, 524 P.2d 906 (1974), we held that in the context of a state-instituted parental termination proceeding, indigent parents possess a due process right to appointment of counsel at public expense. We recognized the fundamental nature of the parent-child relationship, a relationship that was entitled to constitutional significance. Later, in In re Welfare of Myricks, 85 Wn.2d 252, 533 P.2d 841 (1975), we extended this reasoning to state-instituted dependency proceedings.3 *384The appellant claims her constitutional interests in a dissolution proceeding involving custody are no less significant than those recognized under Luscier and Myricks.

¶8 The respondent argues that a dissolution proceeding is a private dispute in which, under the controlling statutes, the court enters a parenting plan dividing the residential placement of the children. The result is an arrangement in which the rights and obligations of parenting are shared between the parents. Respondent maintains that under the statutory scheme, no deprivation of fundamental parental rights takes place that would warrant application of full procedural due process protections. The respondent points to In re Dependency of Grove, 127 Wn.2d 221, 897 P.2d 1252 (1995), in which we held that where fundamental constitutional rights are not threatened, no right to counsel exists at public expense. He argues that shared custody is fundamentally different from permanent deprivation of parental rights and that any decision concerning the appointment of counsel at public expense must be left to the legislature. The respondent further points out that no cases exist that extend a constitutional right to the appointment of counsel at public expense under these circumstances.

¶9 In Luscier, we reviewed a superior court order that denied an indigent parent the appointment of appellate counsel to challenge an order previously entered permanently depriving the parent of all parental rights and interests. After surveying and analyzing prior case authority, we recognized a parent’s interest in the custody and control of their children as an essential right entitled to full due process safeguards, including appointment of counsel at public expense. Our holding was supported by similar cases from other states, which had held appointment of counsel was constitutionally mandated in permanent deprivation proceedings.

¶10 In Myricks, we applied similar reasoning to require appointment of counsel in state-instituted dependency and *385neglect proceedings where, although the child was temporarily removed from the home, the likelihood of permanent deprivations was substantial. In Myricks, as in Luscier, we recognized the fundamental nature of parental rights at issue in the dependency proceedings. We also noted the fact that the indigent parent faced the superior power of state resources in the proceedings.

¶11 Dissolution proceedings are generally a private action between spouses resulting in termination of the marriage. Where the parties have children, the proceedings will also involve a decision on where the children will primarily live and how, among other things, parents will share placement time with the children. The legislature has provided that the best interests of the children are ordinarily served when the preexisting “pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents . . . .” RCW 26.09.002. What this policy promotes is the continued parental involvement in the children’s lives to the greatest extent possible, given the dissolution of the marriage.

¶12 The entry of a parenting plan effectuating the legislative purpose of continued parental involvement in the children’s lives does not equate to an action where the State is seeking to terminate any and all parental rights and parental involvement with the children, severing the parent-child relationship permanently. As the amicus brief of Washington State Attorney General Robert M. McKenna points out, a dissolution proceeding is fundamentally different from termination or dependency proceedings. The dissolution proceeding is a private civil dispute initiated by private parties to resolve their legal rights vis-a-vis each other and their children. When children are involved in the marriage, entry of a parenting plan is a statutory requirement. RCW 26.09.050(1). Entry of such a parenting plan does not terminate the parental rights of either parent, but rather allocates or divides parental rights and responsibilities in such a way that they can be exercised by parents no *386longer joined in marriage.4 Even where a parenting plan results in a child spending substantially more, or even all, of the child’s time with one parent rather than the other, both parents remain parents and retain substantial rights, including the right to seek future modification of the parenting plan. See RCW 26.09.260. As such, the parenting plan divides parental roles and responsibilities, rather than terminating the rights of either parent.

¶13 Furthermore, the State’s involvement is meaningfully different. The proceeding is not instituted by the State. The State is not a party to the proceedings with regard to determining the manner in which parental rights are divided under the parenting plan, nor does the State seek custody of any children or any rights with respect to the child. See Amicus Br. of Wash. State Att’y Gen. at 5-6. We agree with the attorney general’s reasoning. The outcome of a dissolution proceeding cannot be equated with a dependency or termination proceeding.

¶14 We hold that Luscier and Myricks do not support the appellant’s argument. The interest at stake here is not commensurate with the fundamental parental liberty interest at stake in a termination or dependency proceeding. While a parent’s interest in the provisions of a parenting plan is significant, that interest is less than those interests in a termination or dependency proceeding and must be analyzed as such. Further, the State’s role in a dissolution action is not comparable to its role in a termination or dependency proceeding. The cases establishing a right to counsel mention and rely on the fact that the full resources of the State are brought to bear in termination and dependency proceedings. That concern does not exist in dissolution actions. The appellant’s fundamental parental liberty *387interest, recognized in termination proceedings, is not at stake here.5

¶15 In addition, we recognize that while parenting plan statutes focus on the best interests of the children, RCW 26.09.002, they also provide protections for both parents from erroneous decisions.6 These safeguards include, where the court deems appropriate, the appointment of an attorney to represent the children’s interests at public expense when the parties are indigent. RCW 26.09.110. Additionally, the trial court may seek the advice of professional personnel concerning the provisions of a parenting plan. RCW 26.09-.210. The court may also appoint a guardian ad litem (GAL) for the purpose of preparing an investigation and report concerning parenting arrangements. RCW 26.09.220. The GAL is provided at public expense where both parents are indigent. RCW 26.12.175(1)(d). In counties where a unified family court is established, state law authorizes the appointment of court facilitators “to provide assistance to parties with matters before the unified family court.” RCW 26.12.802(3)(d). Where no parental indigency exists, the court has the authority, in appropriate cases, to shift expenses between the parties, somewhat equalizing the resources available to both parents. RCW 26.09.140. Hence, statutory provisions advance the best interests of the child and also provide protections for both parents from erroneous decisions.

*388¶16 Though we determine that fundamental constitutional rights are not implicated in a dissolution proceeding, we address the appellant’s constitutional claims. The interests, while not fundamental, are significant enough to analyze the constitutional claims.

Article I, section 10

¶17 Ms. Kang argues that she has a right to publicly funded counsel under three provisions of the Washington State Constitution: article I, section 3; article I, section 10; and article I, section 12.7 We turn first to Ms. Kang’s argument that she is entitled to appointed counsel under article I, section 10. We have generally applied the open courts clause in one of two contexts: “the right of the public and press to be present and gather information at trial and the right to a remedy for a wrong suffered.” Robert F. Utter & Hugh D. Spitzer, The Washington State Constitution: A Reference Guide 24 (2002); see, e.g., State v. Easterling, 157 Wn.2d 167, 137 P.3d 825 (2006) (the right to open and accessible court proceedings); Dreiling v. Jain, 151 Wn.2d 900, 93 P.3d 861 (2004) (defendant’s right to a public trial); John Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 780, 819 P.2d 370 (1991) (the right to discovery).

¶18 Ms. King argues that the right of access is violated by less than meaningful access, citing Tennessee v. Lane, 541 U.S. 509, 533, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004), and Bullock v. Superior Court, 84 Wn.2d 101, 524 P.2d 385 (1974). Ms. King asserts that the right of access is violated when (1) the proceeding is adversarial; (2) crucial interests are at stake; (3) the unrepresented litigant is indigent and has made reasonable, but unsuccessful, efforts to obtain counsel; and (4) the unrepresented litigant is unable to *389adequately or effectively advocate for his or her interests. Br. of Appellant at 25.

¶19 In Lane, the United States Supreme Court considered whether Congress had the power under section 5 of the Fourteenth Amendment to the United States Constitution8 to enact Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131-12165. The respondents, George Lane and Beverly Jones, filed suit against the State of Tennessee and a number of its counties. They alleged that they were denied physical access to, and the services of, the state court system by reason of their disabilities. Both were paraplegics who relied on wheelchairs. When Lane first appeared to defend a criminal charge, he had to crawl up two flights of stairs. At a second hearing, he refused to crawl or be assisted and was arrested and jailed for failure to appear. Jones, a certified court reporter, claimed to have lost job opportunities because certain courthouses were inaccessible. Lane, 541 U.S. at 513-14.

¶20 The United States Supreme Court found that the volume of evidence demonstrating unconstitutional discrimination was sufficient to justify Congress’ exercise of its prophylactic power.9 The Court referred to “the right of access to the courts at issue in this case” as a “basic right[ ],” calling for a standard of judicial review at least as searching as that applicable to sex-based classifications. Lane, 541 U.S. at 529. The Court said that “ordinary considerations of cost and convenience alone cannot justify a State’s failure to *390provide individuals with a meaningful right of access to the courts.” Lane, 541 U.S. at 533.10

¶21 The appellant further argues, citing Bullock, that what she seeks is part of a “fundamental” right of access. In Bullock, four petitioners, each an indigent plaintiff in a divorce action, sought an order from the presiding judge of the King County Superior Court. That order would have resulted in a waiver of the clerk’s fee for filing. The petitioners also sought to have the presiding judge compel the sheriff to make service of process without fee.

¶22 On appeal, we noted that it is within the inherent power of a court exercising common law jurisdiction to make such orders as are necessary to protect the rights of the poor to access to the judicial system. We granted a writ of mandamus ordering the presiding judge to exercise discretion “consistent with the facts” in deciding when and how to waive costs. Bullock, 84 Wn.2d at 104. We found that “[flull access to the courts in a divorce action is a fundamental right.” 84 Wn.2d at 104 (citing Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971)).

¶23 The mere fact that “access” is a linguistically broad term does not bring the appellant’s inability to obtain counsel within the authority of Lane and Bullock. The Court in Lane was dealing with physical barriers to access and services, barriers that were effectively imposed by the State in that case. References to “meaningful” access in Lane should be read in that light: the incongruity of a right of access that is all but denied by physical obstacles. In Bullock, the barrier to “access” was court-imposed fees. It is more than an insignificant linguistic leap to equate that barrier to access with a right to publicly funded legal representation.11

*391¶24 Neither Bullock nor Lane are authority for so broadly expanding the reach of article I, section 10. When interpreting a reference to “open courts” in its state constitution, the Connecticut Supreme Court found that the provision “was ‘never intended to guarantee the right to litigate entirely without expense to the litigants ....’” Doe v. Connecticut, 216 Conn. 85, 98, 579 A.2d 37 (1990) (quoting In re Lee, 64 Okla. 310, 312, 168 P. 53 (1917)). We similarly find no basis for reading article I, section 10 to provide this right under these circumstances.

Article I, section 3

¶25 We turn next to Ms. King’s assertion that a right to counsel is a function of due process. Both the Fourteenth Amendment to the United States Constitution as well as article I, section 3 require the State to provide due process before depriving an individual of fundamental liberty interests.

¶26 Ms. King asserts that article I, section 3 is more protective of the civil right to counsel than the federal constitution, as evidenced by the analysis and results of the Washington cases establishing the right to counsel in termination and dependency actions.12 See Luscier, 84 Wn.2d *392135; Myricks, 85 Wn.2d 252.13 The United States Supreme Court found that the federal constitution does not require appointment of counsel in every parental termination proceeding. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981).

¶27 Six factors govern the question whether a state constitutional provision extends broader rights than the federal constitution. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). They are (1) the textual language of the state constitution, (2) significant differences in the texts of parallel provisions, (3) state constitutional history, (4) preexisting state law, (5) structural differences between the federal and state constitutions, and (6) matters of particular state interest and local concern.

¶28 As to the first and second factors, since the language of the state and federal provisions is identical, neither is helpful.14 Regarding the third and fourth factors, Ms. King argues that the common law provided for a right to counsel and the common law was incorporated into Washington law. She argues that at common law, some indigent litigants in civil cases were entitled to the assistance of counsel without *393charge, citing 11 Hen. 7, c. 12 (1494). Washington recognized common law principles when it became a state. RCW 4.04.010.

¶29 While some indigent litigants were entitled to counsel under the common law, we find no authority extending that right to dissolution proceedings. Furthermore, some courts have concluded that the law did not provide for publicly funded counsel, but instead obligated attorneys to provide free service. See, e.g., Bristol v. United States, 129 F. 87, 88 (7th Cir. 1904). Preexisting state law and constitutional history do not support her argument.

¶30 Turning to the fifth factor, Ms. King argues that the structure of the Washington Constitution points toward it being more protective of individual rights than its federal counterpart. Br. of Appellant at 36 (citing State v. Foster, 135 Wn.2d 441, 458, 957 P.2d 712 (1998)). We have consistently concluded that this factor supports an independent analysis.

¶31 Finally, Ms. King argues the sixth factor, matters of particular state interest and local concern, favors independent analysis. She argues that the strong history of state variation in court procedure and deference to state policy-making regarding the right to counsel indicate that this is a matter of more local than national concern. Even applying a more protective scope under article I, section 3, we conclude the need for independent analysis does not extend to the circumstances here.

¶32 Other courts have similarly concluded that there is no due process right to counsel in the context of a case like this one. Under federal law, the right to counsel attaches only where physical liberty is at stake, unless a different result is necessary under the balancing test set out in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). State courts that have considered the matter have likewise concluded that there is no right to counsel at taxpayer expense in a dissolution action. See, e.g., Poll v. Poll, 256 Neb. 46, 52, 588 N.W.2d 583 (1999), overruled in part on other grounds by Gibilisco v. Gibilisco, *394263 Neb. 27, 637 N.W.2d 898 (2002); Harmon v. Harmon, 1997 OK 91, 943 P.2d 599, 605 n.5; State ex rel. Ondracek v. Blohm, 363 N.W.2d 113, 115 (Minn. Ct. App. 1985).

¶33 Ms. King argues that she is entitled to counsel under article I, section 3. Ms. Kang claims that under this standard, counsel was required because two fundamental rights were at stake: the right of access to the courts15 and Ms. King’s parenting rights. Even if we were to assume that an independent analysis applies to her article I, section 3 claim, we hold Ms. King is not entitled to counsel.

¶34 Under Myricks, whether counsel must be appointed depends on the nature of the rights in question and the relative powers of the antagonists. The right to counsel extends to cases in which “a fundamental liberty interest ... is at risk.” Grove, 127 Wn.2d at 237.

¶35 As we concluded earlier, the appellant’s fundamental liberty interest is not at stake here. An order terminating parental rights ends the parent/child relationship entirely and permanently. “[A]ll rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support” are severed and terminated, and the parent thereafter has no standing in legal proceedings concerning the child. RCW 13.34.200(1). A termination order leaves the parent without the right to talk with or meet the child, or to participate in or be informed about the child’s development. The parent is allowed no opportunity to make decisions regarding the child’s upbringing.

¶36 In contrast, a decree of dissolution between parents does not sever either parent’s rights and responsibilities over the children. The rights and responsibilities of the parents are not terminated but rather allocated. Furthermore, the parents retain the right to seek modification of the parenting plan. RCW 26.09.260. They also retain standing in legal proceedings concerning the children. The inter*395est at stake here is not commensurate with the fundamental parental liberty interest at stake in a termination or dependency proceeding.

¶37 In addition, the State plays a meaningfully different role; the state neither applies its resources against either party nor instigates the proceeding. In fact, state resources reduce the risk of erroneous results.16

¶38 These factors distinguish a dissolution proceeding from instances where counsel is constitutionally required. We conclude that Ms. King is not entitled to appointed counsel under article I, section 3.

¶39 Finally, we do not agree with Ms. King’s argument that the trial court should have appointed counsel under the Fourteenth Amendment’s guaranty of due process. Br. of Appellant at 33.17 There is a presumption that civil litigants do not have a right to appointed counsel unless their physical liberty is at risk. Lassiter, 452 U.S. at 27 (finding no right to counsel in the termination proceeding). This presumption can be overcome when the Mathews balancing factors weigh heavily enough against that presumption. Those factors are “[f first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335.

*396f 40 A right to appointed counsel at public expense does not attach under the Fourteenth Amendment in these circumstances. The appellant has cited no federal case that supports her position. Here, the appellant’s interest is not as great as it would be in a proceeding where the State sought to terminate her parental rights. The State’s interest in the financial burden resulting from appointment of counsel at public expense is substantial. As we noted above, statutory safeguards provided by the legislature to protect the children’s interests also reduce the risk of erroneous results. As the standard is set out in Lassiter, we cannot conclude that the Mathews factors overcome the presumption against a right to appointment of counsel in cases like this one.

Article 1, section 12

¶41 Finally, Ms. King argues that the trial court should have appointed counsel under article I, section 1218 or federal equal protection analysis. Ms. King argues that use of the courts to resolve disputes is a privilege that is not available equally “when, in a complex adversarial proceeding involving a critical interest,” an indigent person has tried unsuccessfully to obtain counsel and none was appointed. Br. of Appellant at 42. The respondent did not address her argument. Amicus Washington State Attorney General Robert M. McKenna argues that the appellant’s argument fails under both constitutions. The Washington State attorney general argues that “[t]he fact that in a dissolution action, one spouse may have counsel while the other does not in no way translates into a governmental grant of a special privilege to a represented spouse.” Amicus Br. of Wash. State Att’y Gen. at 19.

¶42 For a violation of article I, section 12 to occur, the law, or its application, must confer a privilege to a class of citizens. Grant County Fire Prot. Dist. No. 5 v. City *397of Moses Lake, 150 Wn.2d 791, 812, 83 P.3d 419 (2004). Our privileges and immunities provision protects, in part, “against laws serving the interest of special classes of citizens to the detriment of the interests of all citizens.” Grant County Fire Prot. Dist. No. 5, 150 Wn.2d at 806-07. The terms “privileges and immunities” refers solely to those fundamental rights that belong to citizens of Washington by reason of their citizenship. Grant County Fire Prot. Dist. No. 5, 150 Wn.2d at 813.

¶43 In this case, the dissolution statutes do not create a privilege. The appellant is not denied, as a result of the statute’s application, a privilege to which she would have been entitled but for government interference. Nothing affirmatively done by the State in this matter facilitated the respondent’s litigation or hindered the appellant’s ability to litigate. For example, the State did not require the appearance of counsel in order for the respondent to participate. This is a purely private matter initiated by the parties. We find no violation of article I, section 12.

¶44 We would likewise find no violation were we to review her claim under federal equal protection analysis. Under the federal equal protection clause, no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XTV, § 1. The states must treat like cases alike. Vacco v. Quill, 521 U.S. 793, 799, 117 S. Ct. 2293, 138 L. Ed. 2d 834 (1997).

¶45 The appellant cites no case supporting her claim that the State has here drawn any distinction or classification to which she is subject. We likewise cannot find a basis to conclude that the State is responsible for any classification. We find no basis for her claim that the failure to appoint counsel violated her constitutional rights under federal equal protection analysis.

CONCLUSION

¶46 It may be that the legislature should expend resources to address the complexity that often accompanies *398dissolution proceedings. “A wise public policy . . . may require that higher standards be adopted than those minimally tolerable under the Constitution.” Lassiter, 452 U.S. at 33. However, the decision to publicly fund actions other than those that are constitutionally mandated falls to the legislature. Outside of that scenario, it is not for the judiciary to weigh competing claims to public resources.

¶47 We affirm the decision of the superior court.

Alexander, C.J.; Owens, Fairhurst, and J.M. Johnson, JJ.; and Bridgewater, J. Pro Tem., concur.