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Law Called ‘Discriminatory’ Likely to Survive Challenge: Expert

A law called "discriminatory" by the family of a 20-year-old Korean woman killed in a vehicle collision in the state of Washington last year will likely survive a challenge to its constitutionality, according to a University of Washington (UW) law professor and constitutional law expert.

"It's an uphill argument that this is racist," Hugh Spitzer, who teaches both U.S. and Washington constitutional law, told NBC News.

An official, center, with the Seattle Police Dept. walks at the scene of a crash involving a "Ride the Ducks" amphibious, military-style tour bus, right, and several other vehicles  Thursday, Sept. 24, 2015, in Seattle.
An official, center, with the Seattle Police Dept. walks at the scene of a crash involving a "Ride the Ducks" amphibious, military-style tour bus, right, and several other vehicles Thursday, Sept. 24, 2015, in Seattle. Ted S. Warren / AP

A 1909 amendment to Washington's wrongful death law requires that parents bringing wrongful death suits be residents of the United States at the time of their child's death. The parents of Kim Haram, who was one of five people killed in the 2015 Aurora Bridge crash in which a duck boat hit a charter bus, is challenging the law on the grounds that it violates Washington's constitution as well as the Equal Protection Clause of the 14th Amendment.

"We are disparately seeking a way to nullify this evil law," the Kim family said in a translated statement provided to NBC News.

The crux of the family's legal argument is that the 1909 amendment restricted the rights of certain people based on their national origin, a protected class under Washington's and the U.S. constitutions, and was based on anti-Asian racism in the 1900s.

"It is remarkable that such an unconstitutional statutory scheme has survived into the 21st century, and Washington is the only state in which such a scheme exists," the family's challenge reads.

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In his argument, William C. Schroeder, an attorney representing the Kim family, cites a 1908 wrongful death case, Anustasakas v. International Contract Company, after which the Washington state legislature passed the amendment. In the case, Schroeder told NBC News, the Washington Supreme Court declined to find residency a requirement to bring a wrongful death suit.

"The plea of alienage is not favored in law, and we are of opinion that the rule which permits non-resident aliens to maintain actions of this kind is supported by the weight of authority, and is more in harmony with the liberal cosmopolitan spirit of the age than of the narrow provincial rule which would close our courts to widows and orphans solely because they happen to be non-resident aliens," Schroeder's argument reads, quoting the 1908 decision.

But the Washington Attorney General's office has argued that parents did not have a right to bring a wrongful death suit prior to the 1909 amendment, and because the amendment created that right for resident parents, it is constitutional, an opinion shared by Spitzer. Both the state and Spitzer also believe that the argument that the passing of the amendment was based on racist bias is speculative.

"In the late 19th and early 20th century, there was a great deal of racism in Washington state, particularly against Asians, but there's really is not any evidence that I can tell that that was related to this particular amendment, and I think that [Washington deputy solicitor general] Alan Copsey had it right that this amendment expanded the number of people who could bring wrongful death," Spitzer said. "There's no evidence that this adjustment to the statues in 1909 had anything to do with anti-Asian sentiment."

A Ride the Ducks tour bus that was involved in a crash with several other vehicles can be seen behind an ambulance as officials respond, Thursday, Sept. 24, 2015 in Seattle. Seattle fire officials say two people have been killed and numerous others critic
A Ride the Ducks tour bus that was involved in a crash with several other vehicles can be seen behind an ambulance as officials respond, Thursday, Sept. 24, 2015 in Seattle. Seattle fire officials say two people have been killed and numerous others critically injured in the crash that happened on a bridge over Lake Union. Ted S. Warren / AP

Patricia Buchanan, an attorney representing Ride the Ducks Seattle, told NBC News that she is following the state laws that govern the case.

"In defending this case, we are simply following the state laws that govern these sorts of actions. We take no position on the merit of the law; that is the province of the Washington State legislature," she said. "The statute in question governs wrongful death and survival lawsuits. If the court applies the statute, the parents will still have other options, including filing a claim for economic damages to recover what the individual would have earned during their lifetime."

But Schroeder said that the company has only offered to pay medical and burial expenses, which the Kim family have not been billed for and which the companies who provided the services are considering treating as charity.

"Strangely, because of this law and the charity of the companies that helped the family after the aftermath, it looks like they might not be getting anything at all," he said.

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