Patten v. Green

369 N.W.2d 105, 1985 N.D. LEXIS 335

• Court: North Dakota Supreme Court
• Decided: June 10, 1985
• Docket: Civ. 10879
• Status: Published

Opinions

GIERKE, Justice.

Gary L. Patten filed an appeal from a district court’s denial of his motion to proceed in forma pauperis. We hold that the case does not require a reversal of the district court’s denial of his motion.

In the instant case, the instrument from which Patten attempts to appeal is a letter from Judge Graff which denied Patten’s motion to proceed in forma pau-peris. The letter is not an appealable order under § 28-27-02 of the North Dakota Century Code. Nevertheless, this court may examine a district court’s decision by invoking its supervisory authority. This court exercises its supervisory authority over district courts to prevent injustice in cases where there is no right to appeal or where the remedy by appeal is inadequate. § 27-02-04, N.D.C.C.; Lang v. Glaser, 359 N.W.2d 884, 885 (N.D.1985). The supervisory power is purely discretionary. The instant case is not, in our opinion, a proper one for the exercise of our supervisory authority.

The right to sue in forma pauperis is controlled by statute in most jurisdictions. See Cook v. District Court in & for Weld County, 670 P.2d 758, 760-761 (Colo.1983) [except in the case of petitioner’s bad faith or plain frivolity, a trial court’s discretion consists only of a determination of whether or not the petitioner is unable to pay]; Portis v. Evans, 249 Ga. 396, 291 S.E.2d 511, 513 (1982) [a plaintiff or defendant is entitled to proceed in forma pauperis until any other party in interest contests the truth of the pauper's affidavit]; Thompson v. St. Mary’s Hospital of Duluth, 306 N.W.2d 560, 563 (Minn.1981) [trial court has broad discretion in determining whether or not expenses should be paid under the in forma pauperis statute]. Under Federal law, one must allege that he is unable to pay costs and, in addition, must state the nature of his action, defense, or appeal, and his belief that he is entitled to relief.¹ North Dakota authorizes a waiver of filing fees in civil cases under § 27-01-07, N.D. C.C.:

“27-01-07. Civil action fees — Waiver. Any filing fees connected with any civil action to be heard in any of the courts of the judicial system as listed in section 27-01-01 may be waived with or without a hearing, at the court’s discretion, by the filing of an in forma pauper-is petition accompanied by a sworn affidavit of the petitioner relating the pertinent information regarding indigency.” [Emphasis added.]

This court has not yet set forth the standard of review which is applicable to an appeal from the denial of a petitioner’s request to proceed in forma pauperis in a civil action. We have, however, determined that our review of a petitioner’s denial of appointed counsel in a criminal prosecution is limited to whether or not the trial court has abused its discretion. State v. Jensen, 265 N.W.2d 691, 694 (N.D.1978). The right to appointed counsel is founded in Article I, § 12 of the North Dakota Constitution², and in Rule 44 of the North Dakota Rules of Criminal Procedure.³ There is, however, no constitutional right to the waiver of fees in a civil action.- We therefore rely on the language of § 27-01-07, N.D.C.C., as the basis for our review of the trial court’s decision. Section 27-01-07, N.D.C.C., states that a court may, in its discretion, waive filing fees. Incidentally, there was no provision for the waiver of filing fees in a civil action prior to the enactment of § 27-01-07 in 1977. We assume from reading § 27-01-07 that the Legislature intended that a court is entitled to exercise its discretion in examining a request to proceed in forma pauperis. At the same time, the Legislature contemplated that a court would not be allowed to arbitrarily deny such a request.

We therefore conclude that our review of the district court’s decision is limited to determining whether or not the court abused its discretion. There has been no abuse of discretion exhibited by the court in the instant case.

Patten asserts that the district court should have granted his motion in the instant case because a federal court has granted him leave to proceed in forma pau-peris in another matter. The significance of the federal court’s granting of his motion in another matter is of minimal value to either the district court or to this court in this particular case. Patten also appears to assume that his financial status is the only factor which is considered by the trial court in examining his motion. Indigency is indeed the threshold for the granting of leave to proceed in forma pauperis. Yet, even if indigency is alleged sufficiently, the trial court still has discretion to deny a petition according to the language of § 27-01-07, N.D.C.C. As the Supreme Court of South Dakota stated in Peck v. South Dakota Penitentiary Employees, 332 N.W.2d 714, 716 (S.D.1983):

“Indigency, however, does not create a constitutional right to expend public funds and valuable time of the federal courts to prosecute an action which is totally without merit.” [citing Collins v. Cundy, 603 F.2d 825 (10th Cir.1979)].

The court in Peck, supra, examined the federal courts’ interpretations of the federal in forma pauperis statute in analyzing South Dakota’s provision which was enacted in 1982.

According to Patten’s affidavit, his action is an attempt to make Valery recompense him for instituting a theft of property charge against him and then dropping the charge a year later. Patten requested the following relief in his complaint against Valery Green:

1. A declaratory judgment stating that Valery’s acts constituted theft, or attempted fraud, and that she was in violation of § 12.1-11-03, N.D.C.C., which prohibits false reporting to a law enforcement officer.

2. $1,400 for costs incurred by Patten in protecting himself from Valery’s alleged unlawful acts and in defending himself against a class C felony charge instituted by Valery.

3. $2,800 to compensate Patten for Valery’s “bad faith conduct, harassement [sic ], mental anguish

4. A jury trial.

The trial court, as well as this court, has been presented with numerous actions filed by Patten concerning the rights of Gary Patten as well as those of Valery Green. Based on the knowledge that the trial court possessed regarding the circumstances of the instant case, we conclude that the court did not abuse its discretion in denying Patten’s motion.

Patten’s request to overturn the trial court’s decision is denied.

VANDE WALLE and LEVINE, JJ., concur. ERICKSTAD, C.J., concurs in the result.

1 . 28 U.S.C. § 1915 provides, in pertinent part; § 1915. Proceedings in forma pauperis

“(a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that he is entitled to redress.

"An appeal may not be taken in forma pau-peris if the trial court certifies in writing that it is not taken in good faith.”

2 . Article I, § 12 of the North Dakota Constitution provides:

"ARTICLE I

"DECLARATION OF RIGHTS "Section 12. In criminal prosecutions in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf; and to appear and defend in person and with counsel. No person shall be twice put in jeopardy for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law.”

3 . Rule 44, North Dakota Rules of Criminal Procedure, provides:

"RULE 44

"RIGHT TO AND ASSIGNMENT OF COUNSEL

"Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent him at every stage of the proceedings from his initial appearance before a magistrate through appeal in the courts of this state in all felony cases. Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent him at every stage of the proceedings from his initial appearance before a magistrate through appeal in the courts of this state in all non-felony cases unless the magistrate has determined that sentence upon conviction will not include imprisonment. The court shall appoint counsel to represent a defendant at the defendant’s expense if the defendant is unable to secure the assistance of counsel and is not indigent.”