458 P.2d 154 (Wash. 1969), 40550, O'Connor v. Matzdorff

Docket Nº:40550.
Citation:458 P.2d 154, 76 Wn.2d 589
Opinion Judge:ROSELLINI, J.
Party Name:Glennie O'CONNOR, Petitioner, v. Charles MATZDORFF and Cuba Matzdorff, his wife; and Hattie Foley, doing business as Hattie Foley Real Estate, Respondents, Honorable George H. Mullins, Judge of the Yakima Justice Court and Gladys A. Keller, Clerk of the Yakima Justice Court, Respondents.
Attorney:Charles E. Ehlert, American Civil Liberties Union, Seattle, Wash., for petitioner., John Gant, Legal Services Center, Seattle, Wash., for amicus curiae., Lincoln E. Shropshire, Pros. Atty., Jon R. Harlan, Deputy Pros. Atty., Yakima, for respondents. Charles E. Ehlert, for petitioner.
Judge Panel:HUNTER, C.J., and FINLEY, HILL, HAMILTON, HALE, NEILL and McGOVERN, JJ., concur. DONWORTH, J. pro tem., concurs in the result.
Case Date:August 28, 1969
Court:Supreme Court of Washington
 
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458 P.2d 154 (Wash. 1969)

76 Wn.2d 589

Glennie O'CONNOR, Petitioner,

v.

Charles MATZDORFF and Cuba Matzdorff, his wife; and Hattie

Foley, doing business as Hattie Foley Real Estate,

Respondents,

Honorable George H. Mullins, Judge of the Yakima Justice

Court and Gladys A. Keller, Clerk of the Yakima

Justice Court, Respondents.

No. 40550.

Supreme Court of Washington, En Banc.

August 28, 1969

Rehearing Denied November 5, 1969. [76 Wn.2d 590]

Charles E. Ehlert, American Civil Liberties Union, Seattle, Wash., for petitioner.

John Gant, Legal Services Center, Seattle, Wash., for amicus curiae.

Lincoln E. Shropshire, Pros. Atty., Jon R. Harlan, Deputy Pros. Atty., Yakima, for respondents.

ROSELLINI, Judge.

On August 19, 1968, Glennie O'Connor, through her attorney, tendered a complaint

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for replevin and damages in the total amount of $215.50 to the Honorable George H. Mullins, Judge of the Yakima Justice Court, and to his clerk, for filing. She did not tender any money for fees, and instead tendered her motion and affidavit for leave to proceed in forma pauperis. Judge Mullins and his clerk refused to accept the complaint and to issue a notice of suit to the named defendants on the sole ground that she had not paid the filing fee of $3.50.

In refusing to accept the complaint or issue notice of suit without payment of fees, the respondents relied upon RCW 3.16.070 and 27.24.070(1). They provide: [76 Wn.2d 591] 3.16.070 Fees of nonsalaried justices. The fees and compensation of justices of the peace shall be as follows to wit:

When each case is filed the sum of two dollars shall be paid by the plaintiff, which said sum shall include the docketing of the cause, the issuing of notice and summons, the trial of the case and the entering of judgment: * * *

27.24.070 Additional filing fees. In each county pursuant to this chapter, the clerk of the superior court shall pay from each fee collected for the filing in his office of every new probate or civil matter, including appeals, abstracts or transcripts of judgments, the sum of three dollars for the support of the law library in that county, which shall be paid to the county treasurer to be credited to the county law library fund. There shall be paid to each justice of the peace in every civil action commenced in such court where the demand or value of the property in controversy is one hundred dollars or more, in addition to the other fees required by law the sum of one dollar and fifty cents as fees for the support of the law library in that county which are to be taxed as part of costs in each case:

(1) By each person instituting an action, when the first paper is filed;

(2) By each defendant, other adverse party, or intervenor, appearing separately when his appearance is entered on his first paper filed.

The justice of the peace shall pay such fees so collected to (the) county treasurer to be credited to the county law library fund.

Her application for leave to proceed in forma pauperis having been refused, Glennie O'Connor petitioned this court for a writ of mandamus ordering the respondents to accept and file her complaint and to issue notice of suit thereon, without the payment of any filing fee.

The first question presented is whether the petitioner has pursued the proper remedy. While the ordinary procedure is to petition the superior court for review of an inferior court's decision, rather than the supreme court, this court does not lack jurisdiction to entertain an application for an extraordinary writ directed to a court of limited [76 Wn.2d 592] jurisdiction. In City of Seattle v. Rohrer, 69 Wash.2d 852, 420 P.2d 687 (1966), we held that this court has original jurisdiction to issue a writ of prohibition to a municipal court, under the authority of Const. art. 4, § 4, providing in part that the supreme court shall have power to issue writs of prohibition which are necessary and proper to the complete exercise of its appellate jurisdiction.

This constitutional provision also authorizes the issuance of writs of mandamus for such purpose. We said in City of Seattle v. Rohrer, Supra, that the power is properly exercised when a fundamental issue involving the rights of the petitioner is presented. As the petitioner here maintains, the question whether she is entitled to pursue her remedy at law for an alleged wrong, in spite of her poverty, raises a fundamental issue and one which must be decided by this court ultimately, whatever the answer of the superior court might be.

We have said that we will assume original jurisdiction when the application involves the 'interests of the state at large, or of the public, or when it is necessary in order to afford an adequate remedy.' State ex rel. Pac. Bridge Co. v. Washington Toll Bridge Authority, 8 Wash.2d 337, 112 P.2d 135

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(1941). Although only an individual's right is being asserted in this proceeding, the question to be decided involves very deeply the interests of the public and in particular those of a regrettably large segment of our society. The right of the poor to obtain redress for wrongs, and to defend themselves when sued by the more affluent, is presently of nationwide concern, as is evidenced by the attention given to the subject in legal periodicals. Some notable discussions are to be found in the following: Samore, Legal Services for the Poor, 32 Albany L.Rev. 509 (Spring 1968); Shriver, Law Reform and the Poor, 17 Am.U.L.Rev. 1 (Dec. 1967); Stumpf, Law and Poverty: A Political Perspective, 3 Wis.L.Rev. 694 (1968); Silverstein, Waiver of Court Costs and Appointment of Counsel for Poor Persons in Civil Cases, 2 Valparaiso U.L.Rev. 21 (Fall 1967); Barvick Legal Services and the Rural Poor, 15 Kan.L.Rev. 537 (1967). [76 Wn.2d 593] The leading article was written years ago by John MacArthur Maguire, Poverty and Civil Litigation, 36 Harv.L.Rev. 361 (Feb. 1923), reviewing the history of the relations between poor people and the courts and lamenting the slowness of the movement toward justice for the indigent. See also a book by Comer, Forging the Federal Indigent Code (1966).

We are convinced that the question presented in this case is of such significant public import and urgency that we are justified in assuming original jurisdiction.

The petitioner has requested permission of the court to proceed here in forma pauperis. The record shows that Glennie O'Connor is a woman with five children. She is not employed. The sole source of support for her and her children is a monthly grant received from the Department of Public Assistance in the amount of $325, computed by the department to provide her and her children with slightly less than they need for basic subsistence. The grant is calculated according to a set of minimum values for the basic needs for the family compatible with minimum standards of decency.

No provision is made in Mrs. O'Connor's public assistance grant for any money for filing fees or expenses of civil litigation. This is conceded by the respondent. 1

It might seem at first blush that an annual income of $3,900 is adequate to provide the necessities of life and allow $3.50 for a justice court filing fee. However, the Social Security Administration has defined as poverty stricken in the year 1968 a family of four having an income of less than $3,335 per year. According to this definition, assuming the needs of each member of the family are equal, the subsistence needs of an individual require an income of at least $800, and the minimum requirements of a family of six would be $4,800. The Seattle Post-Intelligencer, in an editorial appearing April 18, 1969, reported that, while a family income of $3,000 is considered the poverty level [76 Wn.2d 594] nationally, it is estimated at $4,000 in Seattle, or 33 1/3 percent higher than the national level. The editorial does not mention the size of the family to which it refers, but since the Social Security Administration's figure, which is slightly higher than $3,000, applies to a family of four, presumably it is a family of four of which the editorial speaks.

It is generally conceded that a family on relief is indigent. See Samore, Supra at 512.

This court has recently had occasion to discuss the concept of indigence in a case involving the right of a defendant in a criminal case to obtain a prepaid statement of facts and transcript in a non-frivolous appeal. We held that the term does not and cannot, in keeping with the concept of equal justice to every man, mean absolute destitution or total insolvency. Rather it connotes a state of impoverishment or lack of resources on the part of the defendant which, when realistically

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viewed in the light of everyday practicalities, substantially and effectively impairs or prevents his pursuit of his remedy. State v. Rutherford, 63 Wash.2d 949, 389 P.2d...

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