Jafar v. Webb

• Court: Washington Supreme Court
• Decided: May 23, 2013
• Docket: 87009-8
• Status: Published

Opinion

FILE IN CLERKS OFFICE ltJIREME COURT, STATE OF WASHMrf'OM DATE MAX '2 ~\l 7013 ·mac~41?41~ c~. CHIEF JUSTiCE -

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

ABEDAJAFAR, ) ) No. 87009-8 Petitioner, ) ) v. ) EnBanc ) WILLIAM DOUGLASS WEBB, ) ) Respondent. ) ) Filed MAY 2 S 2013

C. JOHNSON, J.-This case asks us to decide whether, under General Rule

(GR) 34, courts have discretion to grant only partial waivers of fees and surcharges

to indigent litigants. Abeda Jafar filed an action in Snohomish County Superior

Court to obtain a parenting plan involving her 19-month-old son. She also filed a

motion under GR 34 to waive all mandatory fees and surcharges on the basis of

indigency. Jafar's only sources of income are a monthly food stamp benefit and a

Temporary Assistance for Needy Families cash assistance totaling $385 per month.

The trial court found that Jafar is indigent but granted her only a partial waiver of

fees and surcharges, waiving the $200 filing fee but ordering her to pay a $20

courthouse facilitator surcharge and a $30 judicial stabilization surcharge. The No. 87009-8

court further ordered her to pay the $50 within 90 days. We granted direct review

of the trial court's decision.

We hold GR 34 provides a uniform standard for determining whether an

individual is indigent and further requires the court to waive all fees and costs for

individuals who meet this standard. The rule was adopted to ensure that indigent

litigants have equal access to justice. Any fees required of indigent litigants are

invalid and must be waived under the rule. Accordingly, we vacate and remand the

trial court's order with instructions to waive all filing fees and surcharges.

FACTS

This is an "interlocutory" review, and the facts are undisputed. On January

11, 2012, Jafar filed an action in Snohomish County Superior Court seeking a

parenting plan governing custody and visitation for her 19-month-old son. Jafar

sought to obtain a parenting plan, in part, because she was concerned about her

child's safety with his father, respondent William Douglass Webb. 1 Jafar also filed

a motion, pursuant to GR 34, to waive all mandatory fees and surcharges. Along

with her fee waiver motion, J afar filed a declaration stating that she cannot afford

to meet her necessary household living expenses and also pay the fees and

1 For purposes of this appeal, Webb filed a response indicating that he takes no position on the issue before us. Washington Association of County Officials filed an amicus brief and presented oral argument.

2 No. 87009-8

surcharges. She also stated that she had been dependent on Webb for everything

and that she does not have any savings. Jafar also submitted a financial statement

showing that she is unemployed and that her only sources of income are a monthly

food stamp benefit and Temporary Assistance for Needy Families (TANF) cash

assistance of $3 85 per month. According to her financial statement, J afar has

monthly expenses of at least $380. Jafar's annual income of $4,620 is less than 32

percent ofthe federal poverty guideline of$14,710 for a family oftwo.

The trial court entered an order on January 11, 2012, finding J afar indigent

because her household income is at or below 125 percent of the federal poverty

guideline. Based on that finding, the trial court ordered that "All filing fees and

sureharges of $200 the payment of which is a condition precedent to the moving

party's ability to secure access to judicial relief are waived." Clerk's Papers (CP) at

2. On the form, the trial court crossed out the word "all" as well as the words "and

surcharges" and added the words "of $200." CP at 2. However, the trial court

ordered Jafar to pay a "$20 facilitator surcharge" and a "$30 Judicial Stabilization

surcharge" within 90 days. CP at 2. The trial court left blank section 3.4 of the

form, which provides, "It is hereby ordered that this case shall be dismissed,

without further order of the court, on [blank] (date) if any of the above fees have

not been paid as ordered." CP at 2. The Snohomish County fee waiver application

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packet informs applicants that "[i]fthe Court defers payment of your fees to a later

date, make your payment as ordered or your action may be dismissed for

nonpayment ofthese fees." See Br. ofPet'r, App. A at 5.

We granted Jafar's motion for direct discretionary review of the trial court's

fee order.

ISSUES

1. Is this claim ripe for review?

2. Whether a trial court, under GR 34, may waive only some of the fees and surcharges once a litigant is determined to be indigent under the rule?

ANALYSIS

1. Ripeness

·As an initial matter, we must decide whether Jafar's claim is ripe for review.

We have said that in determining whether a claim is ripe for review, we consider if

the issues raised are primarily legal, and do not require further factual

development, and if the challenged action is final. We also consider the hardship to

the parties of withholding court consideration. First Covenant Church v. City of

Seattle, 114 Wn.2d 392, 399-400, 787 P.2d 1352 (1990), adhered to on remand,

120 Wn.2d 203, 840 P.2d 174 (1992).

Amicus Washington Association of County Officials (WACO) does not cite

to these requirements or apply them to the facts in this case. Instead, WACO

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argues that because the trial court did not dismiss J afar's action or mandate

dismissal for failure to pay the fees, Jafar has not been "'harmfully affected"' by

the trial court's decision and therefore her claim is not ripe for review. Br. of

Amicus Curiae WACO at 5 (quoting State v. Massey, 81 Wn. App. 198, 200, 913

P.2d 424 (1996)). We disagree. Current hardship is not a strict requirement for

ripeness, and a case like this has a sufficient immediate effect to satisfy any

ripeness concerns. From the perspective of Jafar (and any other indigent litigant

seeking access), the order to pay coupled with the requirement to pay in 90 days

has an immediate impact similar to any court order compelling action.

We conclude that Jafar's claim is sufficiently ripe. The interpretation of GR

34 presents a purely legal question that can be resolved on the current record and

no further factual development would affect our analysis. In addition, the fee order

is a final determination of Jafar's waiver request. Finally, the risk of hardship to

Jafar is significant and permitting Jafar to bring a challenge to the fee order at this

time eliminates any risk of dismissal created under the order.

2. GR34

The primary issue in this case is whether a trial court, under GR 34, may

waive only some of the fees and surcharges once a litigant is determined to be

indigent under the rule. J afar argues that the trial court erred because GR 34

5 No. 87009-8

requires courts to waive all fees and surcharges. WACO responds that even when a

court determines that a litigant is indigent, courts still have discretion to waive all,

some, or none of the fees and surcharges.

GR 34(a) provides, in part, "Any individual, on the basis of indigent status

as defined herein, may seek a waiver of filing fees or surcharges the payment of

which is a condition precedent to a litigant's ability to secure access to judicial

relief from a judicial officer in the applicable trial court." The rule further provides

that an individual may be found indigent under the rule in three ways. First, a

litigant who receives need-based, means-tested assistance (such as TANF or food

stamps), or whose household income is at or below 125 percent of the federal

poverty guideline is automatically deemed indigent. GR 34(a)(3)(A), (B). Second,

a litigant whose household income is above 125 percent of the federal poverty

guideline may still be deemed indigent if the trial court finds that recurring basic

living expenses or "other compelling circumstances" render that person unable to

pay the mandatory fees and charges. GR 34(a)(3)(C), (D). Finally, a litigant

represented by a "qualified legal services provider" (QLSP) is granted a

presumption of indigency if counsel states that the individual was screened and

found eligible for the QLSP's services. GR 34(a)(4).

6 No. 87009-8

We review a trial court's interpretation of a court rule de novo. Court rules

are interpreted in the same manner as statutes. If the rule's meaning is plain on its

face, we must give effect to that meaning as an expression of the drafter's intent.

Gourley v. Gourley, 158 Wn.2d 460, 466, 145 P.3d 1185 (2006). When a rule is

ambiguous, we must discern the drafter's intent by "reading the rule as a whole,

harmonizing its provisions, and using related rules to help identify the legislative

intent embodied in the rule." State v. Chhom, 162 Wn.2d 451, 458, 173 P.3d 234

(2007). Although the same rules of construction apply to statutes and court rules,

when interpreting court rules we are not concerned about usurping the role of the

legislature because we alone are uniquely positioned to declare the correct

interpretation of any court-adopted rule.

The plain meaning of GR 34 establishes that a trial court must waive all fees

once a litigant is determined to be indigent under the rule. The language of the rule

provides expressly for "waiver," and no language exists that "waiver" is anything

except waiver of all fees. Under WACO's argument, the trial court here could have

ordered Jafar to pay half of the $200 fee or some other percentage of the fee. But

the rule does not provide for "reduction" of fees, it provides for "waiver" of fees. If

we were to accept WACO's argument, we would be rewriting the rule and opening

the door for trial courts to "reduce" fees, an interpretation that cannot be found

7 No. 87009-8

under any language of the rule. Moreover, the rule's definition of "indigent"

confirms this interpretation. Under GR 34(a)(3)(C), a litigant with income above

125 percent of the federal poverty guidelines can be found indigent only if the trial

court finds that the individual lacks "the financial ability to pay the filing fees and

other fees or surcharges for which a request for waiver is made." (Emphasis

added.) In other words, a finding of indigency means a person lacks funds to pay

anything. Thus, the only reasonable interpretation that is consistent with the full

text of the rule is that all fees and surcharges must be waived for indigent litigants.

The history behind GR 34's adoption confirms this interpretation and further

demonstrates that indigent litigants are entitled to full fee waivers under the rule.

When the rule was initially proposed, the Washington State Bar Association's GR

9 cover sheet for GR 34 stated that the purpose of the rule is to establish "a

statewide, uniform approach to presentation, consideration and approval of

requests for waiver of fees and costs for low income civil litigants." See Br. of

Pet'r, App. Fat 2. The comments submitted in response to publication of the rule

demonstrate that both supporters and opponents of the rule understood that GR 34

would create uniform, mandatory standards for granting civil fee waivers. For

instance, the Washington State District and Municipal Court Judges' Association

expressly requested that we amend the proposed rule, to give courts "the authority

8 No. 87009-8

to grant partial fee waivers, in addition to full fee waivers." See Br. ofPet'r, App.

AA at 1. Notably, we did not incorporate that suggested change in the final rule,

strongly suggesting that full waivers are mandatory.

WACO contends that the comments to GR 34 demonstrate that the trial

court's authority to waive fees for indigent litigants is discretionary. However,

nothing in the comments speaks to whether GR 34 permits trial courts to grant

partial waivers. Even if we did read the comments to suggest that fee waivers are

discretionary, "[w]hen interpreting a court rule, this court has eschewed a literal

reading of the language where such a reading fails to effectuate the intent of the

rule." Chhom, 162 Wn.2d at 458. Under WACO's interpretation, a determination

of indigency could have variable legal significance because a trial court could still

waive none, some, or all of the fees. Local jurisdictions would possess the power to

impose on indigent litigants locally crafted fees or charges to generate funding for

local programs or services. While such authority unquestionably exists, requiring

payment from those individuals who cannot pay effectively denies access to justice

to some. Such a result would also defeat the purpose of the rule to create a

statewide, uniform approach to approval of waiver requests. Moreover, granting

courts the discretion to waive fees could lead to inconsistent results and disparate

treatment of similarly situated individuals, the very problems the rule was designed

9 No. 87009-8

to address. Thus, WACO's interpretation would not only require rewriting the

language of the rule but would also conflict with the history, purposes, and

principles of the rule.

Embracing WACO's argument would also allow trial courts to impose fees

on persons who, in every practical sense, lack the financial ability to pay those

fees. Here, the trial court ordered Jafar to pay $50 within 90 days. Jafar's financial

statement indicates that she receives $385 per month in cash assistance. After

paying her monthly expenses, which total $380, there is next to nothing remaining.

We fail to understand how, as a practical matter, Jafar could make the $50 payment

now, within 90 days, or ever. We have no record supporting the trial court's

reasoning and its evident conclusion that J afar could afford to pay any amount

based on her financial situation. Such a construction of the rule resulting in such

consequences is an unacceptable one.

GR 34 must also be interpreted in a manner that is constitutional. Consistent

with our analysis of GR 34, principles of due process or equal protection require

that indigent litigants have access to the courts and require a complete waiver of

fees. This principle historically is firmly established. The foundation case is Griffin

v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956), where the Supreme

Court struck down a rule that denied defendants access to appellate review if they

10 No. 87009-8

were unable to pay for a trial court transcript. The Court reasoned that such a rule

violated due process and equal protection, and said that "[t]here can be no equal

justice where the kind oftrial a man gets depends on the amount of money he has."

Griffin, 351 U.S. at 19.

Guided by the rationale in Griffin, the Court later recognized that due

process requires states to provide access to the courts for indigent litigants in a

narrow category of civil cases. See, e.g., Boddie v. Connecticut, 401 U.S. 371, 91

S. Ct. 780, 28 L. Ed. 2d 113 (1971). In Boddie, several women receiving public

assistance were barred from pursuing divorce proceedings because they were

unable to pay the mandatory court fees and costs, totaling approximately $60. In

that case, the Court held that due process prevents the State from denying access to

civil indigent litigants where the State requires court involvement for changes to "a

fundamental human relationship." Boddie, 401 U.S. at 383. Two concurring

justices also recognized that closing the courts to indigent persons on the ground of

nonpayment of fees violates equal protection principles. See Boddie, 401 U.S. at

383 (Douglas, J., concurring in result), 386 (Brennan, J., concurring in part).

A more recent civil case involving the principles established in Griffin was

ML.B. v. S.L.J., 519 U.S. 102, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996). In

ML.B., a mother was denied appellate review of a decision terminating her

11 No. 87009-8

parental rights because she was unable to pay the record preparation fees. The

Court found that denying appellate consideration of the mother's claims violated

equal protection and due process. However, the Court in ML.B. emphasized that

Griffin does not extend to all civil cases and is limited to those "involving state

controls or intrusions on family relationships." ML.B., 519 U.S. at 116. The Court

said, "Choices about marriage, family life, and the upbringing of children are

among associational rights this Court has ranked as 'of basic importance in our

society."' ML.B., 519 U.S. at 116 (quoting Boddie, 401 U.S. at 376).

While these cases recognize and apply these constitutionally based

principles and establish a constitutional "floor," and although Jafar's parenting

plan action could be characterized as involving a fundamental right and controlled

by this line of cases, no need exists to decide that here because GR 34, consistent

with our cases, is broader than these base constitutional principles and requires fee

waivers for indigent litigants in all cases. Even before the United States Supreme

Court's decision in Boddie, this court recognized that imposing court fees on

indigent litigants would violate the fundamental principles our system of justice is

founded on and we held that courts have a duty to waive filing fees for any

indigent litigant. In 0 'Connor v. Matzdorff, 76 Wn.2d 589, 458 P.2d 154 (1969), a

plaintiff was prohibited from filing a civil action for damages because she could

12 No. 87009-8

not pay the $3.5 0 filing fee. There we said that "the exercise of a sound discretion

dictates that a litigant should not be denied his day in court simply because he is

financially unable to pay the court fees." O'Connor, 76 Wn.2d at 603. Four years

later, we reaffirmed the principles in 0 'Connor and held that the court has a duty

stemming from the state constitution to waive fees on appeal for indigent plaintiffs.

Iverson v. Marine Bancorporation, 83 Wn.2d 163, 517 P.2d 197 (1973). We said

that " [t ]he administration of justice demands that the doors of the judicial system

be open to the indigent as well as to those who can afford to pay the costs of

pursuing judicial relief' and that "financial inability to pay the costs of pursuing a

legal remedy will not operate to bar one from this state's system of justice."

Iverson, 83 Wn.2d at 167. GR 34 grew out of these cases and gives objective

meaning to these principles, and the rule establishes the requirements for trial

judges to follow. The triggering determination is the finding of indigency. Once

the trial court determines that a litigant is indigent, the rule then requires a

complete waiver in order to allow access to the courts. No language in the rule

exists supporting a grant of a partial waiver for indigent litigants, nor, given the

cases decided, could such a decision be supportable.

Here, the trial court correctly determined that Jafar is indigent as defined in

GR 34 because her household income is below 125 percent of the federal poverty

13 No. 87009-8

guideline. The trial court erred though by ordering Jafar to pay $50 in local

surcharges. Fees and surcharges imposed on indigent litigants affecting the right to

access justice are invalid. Accordingly, we vacate and remand with direction to

waive all filing fees and surcharges.

14 No. 87009-8

WE CONCUR:

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