Housing Authority v. Saylors

557 P.2d 321, 87 Wash. 2d 732, 1976 Wash. LEXIS 698

• Court: Washington Supreme Court
• Decided: November 18, 1976
• Docket: 44131
• Status: Published

Opinions

Rosellini, J.

This case is before the court upon a motion for an order of indigency and for the expenditure of public funds to pay the costs of prosecuting an appeal from a judgment in favor of the petitioner’s landlord in an unlawful detainer action.

From the facts alleged in the briefs, it appears that the King County Housing Authority, a municipal corporation which provides subsidized housing to families of low income, determined that it would, be necessary to terminate the petitioner’s tenancy. She was served with a notice advising her that she would be terminated because she was maintaining a nuisance on the property. (The nature of the nuisance is not revealed.)

To challenge the proposed eviction, the petitioner, with the assistance of the Seattle Legal Services Center, pursued the administrative remedy which was provided in her lease in accordance with federal regulations. This included a conference with a management representative and a hearing before a panel composed of three fellow tenants. She was represented by counsel on both occasions. The hearing was conducted in accordance with regulations promulgated by the Department of Housing and Urban Development. At such a hearing either party may cause a record to be made. None was made in this case. After the hearing, the panel issued a written decision sustaining the Housing Authority’s determination that there was cause for eviction of the petitioner.

The petitioner refused to vacate the premises after receipt of a copy of the decision. The Housing Authority then filed this unlawful detainer action. The petitioner, conceding that there had been a hearing as required in the lease, and that the hearing panel had found that cause for eviction was proven, nevertheless contended that the Housing Authority was required by law to prove, by evidence offered in court, that such cause existed. The Superior Court ruled that the admissions of the petitioner showed that the Housing Authority was entitled to the relief sought in the unlawful detainer action and entered judgment accordingly.

The petitioner filed notice of appeal and now seeks an order for the expenditure of public funds to finance it. She relies upon the case of Carter v. University of Washington, 85 Wn.2d 391, 536 P.2d 618 (1975), in which a plurality of this court held that, in a civil as well as in a criminal action, an indigent has a constitutional right to appeal without payment of the court’s filing fee or without providing the cost bond required under ROA I-22.¹ We are asked to reconsider that plurality holding, it being urged by the respondents that it was in error, without foundation in law, and contrary to public policy.

Before examining that opinion, we will review briefly the civil cases involving indigents which have come before this court in recent years, noting also relevant decisions of the Supreme Court of the United States.

The first of these was O’Connor v. Matzdorff, 76 Wn.2d 589, 458 P.2d 154 (1969), wherein we held that the courts of this state have the inherent power to waive the payment of filing fees (whether these fees are imposed by court rule or by statute) if justice demands it, and upon a showing that the action is brought in good faith and has probable merit.

In determining that this inherent power exists in justice courts as well as in the higher courts, we surmised that a substantial number of the claims of the poor, if indeed not a majority of them, fall within the justice court jurisdiction.

Subsequent to our decision in O’Connor v. Matzdorff, supra, the United States Supreme Court decided Boddie v. Connecticut, 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971). It held that due process of law requires that, where a state has preempted the right to dissolve the marriage relationship, it cannot place a barrier of court filing fees before an indigent seeking a divorce.

In Ashley v. Superior Court, 83 Wn.2d 630, 521 P.2d 711 (1974), a divorce action, filing fees had been waived, pursuant to O’Connor v. Matzdorff, supra, and there came before the court the question whether the indigent plaintiff was required to pay the expenses of publication and service of the summons and complaint. In a plurality opinion, we observed that the court had no power to waive the defendant’s constitutional right to notice, but fashioned a means of giving notice which was appropriate in the circumstances and which made it unnecessary for the plaintiff to incur the expenses of publication and sheriff’s service. Inherent in that opinion was a recognition that the court did not have the power to waive the sheriff’s fees, which are provided for by statute, or to waive on behalf of a newspaper the costs of publication.

Ashley v. Superior Court, supra, was followed in Bullock v. Superior Court, 84 Wn.2d 101, 524 P.2d 385 (1974), where we again refused to order the waiver of sheriff’s fees, and instead directed the trial court to devise an alternative means of service.

It will be noted that both of these cases were divorce cases and therefore came within the rule laid down in Boddie v. Connecticut, supra, that filing fees may not be required of indigents who seek dissolution of their marriages, control of such dissolution having been preempted by the state.

Following Boddie v. Connecticut, supra, the United States Supreme Court decided United States v. Kras, 409 U.S. 434, 34 L. Ed. 2d 626, 93 S. Ct. 631 (1973), in which it held that there is no constitutional right to free access to the bankruptcy courts, there being other avenues of relief available to a bankrupt, the right to a discharge in bankruptcy being neither a constitutional nor a “fundamental” right (which demands a compelling governmental interest as a precondition to regulation), and there being a rational basis for a fee requirement.

That court also decided Ortwein v. Schwab, 410 U.S. 656, 35 L. Ed. 2d 572, 93 S. Ct. 1172 (1973), a case involving an Oregon statute which required a $25 filing fee in connection with applications made to the appellate courts to obtain review of agency decisions lowering welfare payments. The court determined that the indigent in those circumstances had no constitutional right to appeal without payment of the fee. It said that an interest in increased welfare payments does not have the constitutional significance of the interest that one has in dissolving his marriage and that the appellants had received an agency hearing, not conditioned on the payment of a fee, which was an adequate remedy. It stated that it had long recognized that, even in criminal cases, due process does not require a state to provide an appellate system.

In answer to a contention that the filing fee violated the equal protection clause by unconstitutionally discriminating against the poor, the court said that where the litigation is “in the area of economics and social welfare” and does not involve any suspect classification, such as race, nationality, or alienage, the applicable standard is that of rational justification. The filing fee was rationally justified, as it was not disproportionate and provided some revenue to assist in offsetting the operating expenses of the court.

The rationale of the Kras and Ortwein decisions was followed by the Court of Appeals, Division One, in Bowman v. Waldt, 9 Wn. App. 562, 513 P.2d 559 (1973), where it was urged that an indigent suitor who had recovered a $50 judgment was- entitled to execution of the judgment without payment of the sheriff’s fee and indemnity bond. Noting the similarity between the due process and equal protection clauses of U.S. Const, amend. 14 and Const, art, 1, §§ 3, 12 (citing Olsen v. Delmore, 48 Wn.2d 545, 295 P.2d 324 (1956), and Herr v. Schwager, 145 Wash. 101, 258 P. 1039 (1927)), the court held that the appellant had no constitutional right to a waiver of the fees. It further held that the lower court did not abuse its discretion in refusing to waive the fees, finding the appellant’s interest in obtaining execution upon his judgment was outweighed by the sheriff’s statutory right to indemnification.

Ortwein and Kras were also relied upon by the Court of Appeals, Division Three, in Malott v. Randall, 11 Wn. App. 433, 523 P.2d 439 (1974). The court there refused to order a waiver of the requirement of RCW 23A.08.460, that security be posted in a shareholder’s derivative action.

In Iverson v. Marine Bancorporation, 83 Wn.2d 163, 517 P.2d 197 (1973), where a successful plaintiff appealed, claiming the judgment was inadequate, this court waived its fees (pursuant to ROA I-10(a) (1) (iii)), and in addition ordered the preparation of a free transcript and statement of facts and the waiver of the cost bond. It was not decided that these measures were constitutionally required; rather the decision was rested on the inherent power doctrine first recognized in O’Connor v. Matzdorff, supra. Justice Hale, dissenting, drew attention to the fact that there was neither a statutory nor a constitutional justification for waiver of a payment due a third party such as a court reporter and that O’Connor v. Matzdorff, supra, went no further than to find an inherent power in the court to waive its own filing fees.²

Against the background of these cases, we turn to Carter v. University of Washington, 85 Wn.2d 391, 536 P.2d 618 (1975). The appellant in that case was a civil service employee of the university’s trucking service. His employment having been terminated because of his alleged violation of state and institutional regulations, he sought and was granted review by the Higher Education Personnel Board, which upheld the termination. The superior court affirmed the board, and the appellant petitioned this court for leave to appeal in forma pauperis. Five judges agreed that the fees and appeal bond should be waived if the appellant was a bona fide indigent and if the appeal had probable merit. No showing of probable merit or indigency having been made in the original petition, the matter was remanded to the superior court to determine these questions.

The superior court’s evaluation was somewhat ambiguous, owing to its understandable reluctance to pass judgment upon its own prior disposition of the case. Nevertheless, when the case again came before this court, we were able to determine from the superior court’s findings that there was no probable merit to the appeal. The application to proceed in forma pauperis was denied. Carter v. University of Washington, 87 Wn.2d 483, 554 P.2d 338 (1976).

The plurality opinion in the first Carter case was rested upon two grounds—the inherent power of the court (citing O’Connor v. Matzdorff, 76 Wn.2d 589, 458 P.2d 154 (1969)), and a constitutional right to appeal all meritorious cases, found either in article 1, section 12, or article 1, section 4 of the state constitution.

Const, art. 1, § 12, provides:

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

In determining that this provision requires that an indigent having an apparently meritorious case be allowed to prosecute his appeal without payment of such expenses as filing fees and cost bond premiums, signers of the opinion chose not to follow the United States Supreme Court’s interpretation of the fourteenth amendment to the United States Constitution.

We have said that, because of their similar wording and similar purposes, the equal protection clause of the federal constitution and the privileges and immunities clause of the state constitution are substantially identical in their impact upon state legislation. Hanson v. Hutt, 83 Wn.2d 195, 517 P.2d 599 (1973); State v. Perrigoue, 81 Wn.2d 640, 503 P.2d 1063 (1972). Where language of our state constitution is similar to that of the federal constitution, we have held that the language of the state constitutional provision should receive the same definition and interpretation as that which has been given to the federal provision by the United States Supreme Court. State v. Moore, 79 Wn.2d 51, 483 P.2d 630 (1971); State v. Schoel, 54 Wn.2d 388, 341 P.2d 481 (1959).

The United States Supreme Court, construing the Fourteenth Amendment, has held that it does not require a waiver of court fees for indigents, if the interest involved in the indigent’s claim is not a fundamental one and there is another procedure available, not requiring the payment of fees, through which redress can be sought. If the litigation is in the field of economics and social welfare, and there is no suspect classification, the applicable standard for determining the propriety of imposing fees is rational justification. Ortwein v. Schwab, 410 U.S. 656, 35 L. Ed. 2d 572, 93 S. Ct. 1172 (1973).

The court did not hold that economics and social welfare is the only field in which fundamental interests are not involved. What interests other than the marital status require free access to the judicial process is a question which remains for future determination. But in any event, in both the Carter case and this case, the interest involved lies in the area of economics and social welfare. In both cases, all of the designated considerations are present. As the United States Supreme Court said in Ortwein v. Schwab, supra, the rational justification test is met if the fee is not disproportionate and provides some revenue to assist in offsetting operating costs.

In refusing to accept the United States Supreme Court’s interpretation of constitutional requirements of equal protection, the signers of the plurality opinion did not rest their decision upon any significant difference in the language of article 1, section 12.³ Rather the opinion purports to give effect to an assumed state public policy, more generous to the poor than is that of the nation as a whole, which was read into the constitution, but without reference to any specific language.

The difficulty with this approach is that public policy is a matter to be determined by the people, speaking either through their constitution or the legislature. In their constitution, the people adopted one provision which is addressed to a problem of the poor. It provided in article 1, section 17, that there shall be no imprisonment for debt except in the case of absconding debtors. Aside from the implied right to free defense which has been found to exist in criminal cases, the alleviation of other problems occasioned by economic distress was left to the discretion of the legislature. That body has provided for the payment of the costs of the transcript and all costs necessarily incident to a proper consideration of a review, where it has been judicially determined that a party has a constitutional right to review and that he is unable by reason of poverty to procure counsel to perfect the review. RCW 2.32.240, RCW 4.88.330. In concluding that the policy of this state dictates that indigents must have free access to the courts in all civil cases having apparent merit, the plurality opinion in Carter v. University of Washington, 85 Wn.2d 391, 536 P.2d 618 (1975), improperly invaded the legislative province.

That there is a distinction between the rights of a criminal defendant and those of a party to a civil suit cannot be overlooked.

The constitution itself expressly gives a right of appeal in all criminal cases. Const, art. 1, § 22. Since the framers are shown to have had in mind the question of the right to appeal, and granted it only in criminal cases, their silence with respect to civil cases cannot reasonably be interpreted as the expression of an intent that appeals should be allowed in all or in any particular category of such cases.

The right of appeal in civil cases, then, if it exists, is one which is granted by the legislature. Where express legislation is not involved, this court exercises a large degree of discretion in determining what cases are appealable. The rules of this court providing for appeals speak in terms of permission and not of right. ROA 1-14 through -16.

The appellate courts of the state provide a service for dispute settlement. Like other state services, when they are utilized by private individuals it is not unreasonable to require that some of the cost be borne by those receiving such special benefits. Because of the cost of preparing records, legal services, and briefs—costs which are not imposed by the state or by the court but rather are charges made by other private citizens pursuing their own means of livelihood—the appellate process is expensive. We can safely surmise that many litigants who are not to be classified as indigent are still not affluent enough to afford the luxury of an appeal.

Whether the public interest requires that the appellate process be more extensively utilized, and whether the public is willing to finance a greater utilization of it, is a question to be resolved by the legislature. It is certain that this court cannot provide for the financing of appeals in every case of probable merit where the appellant is not able to afford the expense of further litigation, absent a legislative appropriation.

We conclude that the departure in Carter v. University of Washington, supra, from the general rule that this court will be governed by decisions of the United States Supreme Court interpreting similar constitutional provisions was ill-advised and should be rejected, and that the privileges and immunities clause does not require that appellate fees be waived in cases such as these, where all of the factors set forth in Ortwein v. Schwab, supra, and specified above, are present.

Carter v. University of Washington, supra, should also be overruled insofar as it suggested that article 1, section 4, protects a right of access to the courts. This section reads: “The right of petition and of the people peaceably to assemble for the common good shall never be abridged.” This provision obviously has reference to the exercise of political rights. The language of the constitution, like that of statutes, is to be given its common and ordinary meaning. It requires an awkward and unnatural construction of this language to make it applicable to the judicial process. Access to the courts is amply and expressly protected by other provisions.

We are not shown, however, that we were in error when we held in O’Connor v. Matzdorff, 76 Wn.2d 589, 458 P.2d 154 (1969), that the courts retain an inherent power to waive their own fees in order to consider a case where it is made to appear that justice requires it. The question whether the waiver of court reporter’s fees in Iverson v. Marine Bancorporation, 83 Wn.2d 163, 517 P.2d 197 (1973), and the statutory cost bond in both Iverson and Carter was a proper exercise of the court’s inherent power need not be decided at this time.⁴

In determining whether the court should exercise its inherent power and waive its fees in order to facilitate an appeal in a given case, we must always keep in mind that there is no constitutional right to appeal a civil case, that it is presumed that the court below proceeded according to law and reached a correct decision, and that the burden is upon the appellant to show error.

That these presumptions are justified is shown by this court’s experience with respect to reversals, which are always substantially exceeded by affirmances.⁵

For these reasons the legislature has provided the extra protection of a cost bond for the respondent, whose victory in the lower court was presumably justified. A respondent faced by an indigent appellant is at an added practical disadvantage, since there is little hope that he can be made whole if the appellant does not prevail. Caution must be exercised, therefore, and we must carefully examine any application for waiver of fees to make certain that the risks to the respondent are minimized.

It is significant that of the four indigency cases which have been before this court which did not meet the “fundamental interest” test set forth in Boddie v. Connecticut, 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971), none has involved a miscarriage of justice. Lack of merit has been specifically found in Iverson v. Marine Bancorporation, 86 Wn.2d 562, 546 P.2d 454 (1976), and Carter v. University of Washington, 87 Wn.2d 483, 554 P.2d 338 (1976), and the present case. O’Connor v. Matzdorff, supra, we are advised, was never pursued in justice court after this court remanded it.

The method provided in Carter for determining whether the factors of indigency, good faith, and meritorious claim are present, upon further consideration, appears to involve an unnecessary procedural step. Since, as the superior court’s order in that case made clear, a judge whose decision is questioned on review is placed in an uncomfortable position if asked to pass upon the merits of that review, we have concluded that the remand for such consideration is not a practical method of ascertaining the probable merit of the appeal. A reasonably accurate determination should be possible if the petitioner is required to submit his attorney’s affidavit of his indigency and his good faith and is further required to allege facts in his petition and cite applicable legal principles which will show there has been a miscarriage of justice and that his appeal is well taken.

Under 28 U.S.C. § 1915, enacted in 1892, the right to proceed must be established by affidavits. Cf., Rules of the Supreme Court, 1883, Order XVI, No. 24, adopted pursuant to 11 Hen. 7, c. 12 (1495), which required an affidavit of “all the material facts.” 9 Chitty’s English Statutes 723-24 (6th ed., W.Aggs 1912).

Such a showing has not been made in this case. The petitioner concedes that she was given the hearing upon the question of good cause for eviction which was required by law, that such cause was found to exist, and that she was given the statutory notice to vacate the premises. She does not deny that there was in fact good cause for eviction. There is, in short, no allegation before us which would justify a conclusion that an injustice has been done. The motion to proceed in forma pauperis is therefore denied.

Stafford, C.J., and Hunter, Hamilton, Wright, Brachtenbach, and Dolliver, JJ., concur.

1 The bond protects the respondent’s right to costs which is provided for in RCW 4.88.

2 When this case came before the court on the merits, it was found that the appeal was without substance. Iverson v. Marine Bancorporation, 86 Wn.2d 562, 546 P.2d 454 (1976).

3 It would appear that Const, art. 1, § 12, is less liberal than U.S. Const, amend. 14, if a distinction between the two is to be found in the language used, for it expressly authorizes the legislature to impose terms upon the enjoyment of a privilege.

4 It is worthy of note that the California courts, whose practice this court regarded as persuasive in O’Connor v. Matzdorff, 76 Wn.2d 589, 458 P.2d 154 (1969), waive only the filing fees on civil appeals, according to advice received from the California Judicial Council.

5 In 1975, for example, 59 percent of the opinions filed affirmed the superior court. Where a petition for review was granted, the percentage of affirmances of the superior court was 79.