Almarez v. Carpenter

• Decision Date: 14 December 1970
• Docket Number: No. 24729,24729
• Citation: 173 Colo. 284,477 P.2d 792
• Parties: Leroy ALMAREZ and Susan Almarez, Plaintiffs, v. Honorable Donald A. CARPENTER, District Judge for Weld County, State of Colorado, Defendant.
• Court: Colorado Supreme Court

Page 792

477 P.2d 792

173 Colo. 284

Leroy ALMAREZ and Susan Almarez, Plaintiffs, v. Honorable Donald A. CARPENTER, District Judge for Weld

County, State of Colorado, Defendant.

No. 24729.

Supreme Court of Colorado, En Banc.

Dec. 14, 1970.

Jonathon B. Chase, David C. Mastbaum, Boulder, for plaintiffs.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L. Hoecker, Asst. Atty. Gen., Denver, for defendant.

KELLEY, Justice.

This case is before the court for a determination of two questions certified to us pursuant to C.A.R. 21.1 by the United States District Court for the District of Colorado. The questions:

1. Does C.R.S.1963, 33--1--3, give an individual, found to be a pauper within the meaning of the statute, a right to a trial transcript without cost in order to prosecute an appeal? (33--1--3 was amended in 1965 and this opinion will refer to it in its current form.)

2. If C.R.S.1963, 33--1--3, is found not to require that a trial transcript without cost be provided, under such circumstances, then is C.R.S.1963, 33--1--3, violative of art. II, § 6 of the Colorado constitution?

Both questions are answered in the negative.

Before we discuss the certified questions, a brief outline of the facts may be helpful.

On October 14, 1969, plaintiffs, Leroy and Susan Almarez, instituted suit in the District Court for Weld County, State of Colorado, in an action styled Almarez v. Triangle Motor Company (Civil Action No. 19724), to rescind a contract for the purchase of a used automobile. Mr. and Mrs. Almarez were allowed to proceed in forma pauperis (1965 Perm.Supp., C.R.S.1963, 33--1--3) due to the fact that they were without resources sufficient to meet the costs of litigation. The Almarez income is derived primarily from the Weld County Department of Welfare. After trial to the court judgment was entered for the defendant.

A motion for new trial was timely filed and denied. Plaintiffs then filed a motion and affidavit in support thereof requesting that a trial transcript be furnished without cost in order to prosecute an appeal. They alleged that the free transcript was authorized by 1965 Perm.Supp., C.R.S.1963, 33--1--3. The Court denied the motion for a trial transcript without cost on the grounds that Section 33--1--3 does not so provide.

Plaintiffs filed a Writ of Error and Motion to Proceed in Forma Pauperis in the Court of Appeals of the State of Colorado on March 25, 1970 (Case No. 70--163). On the same day, the Colorado Court of Appeals granted plaintiffs' motion.

Also, on March 25, 1970, plaintiffs instituted an action styled Almarez v. Honorable Donald A. Carpenter (Civil Action No. C--2163) in the United States District Court of the District of Colorado. In their complaint they alleged that the interpretation of Section 33--1--3 by the district court, in refusing a trial transcript without cost, violated the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. However, here the statute is challenged only as to its constitutionality under art. II, § 6 of the constitution of Colorado.

I.

The statute which we are called upon to interpret, 1965 Perm.Supp., C.R.S.1963, 33--1--3, reads as follows:

'Costs of poor person.--If the judge or justice of any court, including the supreme court, shall at any time be satisfied that any person is unable to prosecute or defend any civil action or special proceeding because he is a poor person and unable to pay the costs and expenses thereof, the judge or justice, in his discretion, may permit such person to commence and prosecute, or defend an action or proceeding without the payment of costs, and thereupon such person shall have all the necessary writs, process and proceedings in said court as in other cases without charge; provided, that in the event such person prosecutes or defends an action or proceeding successfully, there shall be a judgment entered in his favor for the amount of court costs which he would have incurred except for the provision of this section, and this judgment shall be first satisfied out of any moneys paid into court and such costs shall be paid into the registry of the court before any such judgment shall be satisfied of record.'

From an analysis of the statute it appears that, in the first instance, whether a litigant may commence or defend an action or proceeding without the payment of costs rests within the sound judicial discretion of the judge.

The test of whether the litigant may 'commence and prosecute, or defend an action or proceeding Without the payment of costs' depends upon whether the judge is satisfied that the litigant 'is a Poor person and Unable to pay the costs and expenses thereof.' In other words, to be entitled to a waiver of 'costs' the litigant must not only be 'a poor person' who is not able to pay the Costs, but Also is unable to pay The expenses of the civil action or proceeding. The statute only permits the waiver by the judge of costs chargeable by the court. It does not authorize the payment of 'expenses' such as a reporter's fees for transcribing the trial proceedings. The inability to pay Expenses is, in effect, a test of indigency under this statute.

The law provides that if a litigant desires a transcript he must make his own arrangements with the reporter. C.A.R. 10(b). The preparation of a transcript by a reporter of his notes is a service which is not covered by his salary. Hence, the fees for such service are not payable to the court and the court cannot waive them.

There is a fundamental difference between permitting the court To waive costs due it and authorizing the court to order the state to assume the obligation of a litigant to a court reporter for preparing a transcript for purposes of appeal. The latter is an Expense which is not within the contemplation of the waiver provisions of 33--1--3. See Spain v. Murry, 77 Colo. 197, 235 P. 338; Ferrara v. Auric Mining Co., 20 Colo.App. 411, 79 P. 302; Colorado F. & I. Co. v. Menapace, 16 Colo.App. 200, 64 P. 584.

There is no language in 33---1--3 which suggests that the court may waive any fees or compensation to which the court reporter is entitled for the preparation of a transcript, nor is there any language which indicates that the court is to assume the litigant's obligation to pay the reporter for his services in preparing the transcript. We hold, therefore, that 33--1--3 does not contemplate the furnishing of a free transcript to an indigent litigant.

II.

The second question certified is whether 1965 Perm.Supp., C.R.S.1963, 33--1--3, as interpreted in Part I, violates art. II, § 6 of the Colorado constitution, which provides:

'Equality of justice.--Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.'

The first clause requires that 'courts of justice shall be open to every person.' We do not perceive any violation of this provision by the terms of the statute. In fact, the sole and only purpose of the statute is To aid the indigent litigant in getting into court--in effect, Opening the courts of justice to the poor person. As a matter of fact, we may assume that but for the waiver of the costs in the trial court, Mr. and Mrs. Almarez would not have had their day in court. Likewise, they have sought and obtained a waiver of Costs in the Colorado Court of Appeals, by virtue of the provisions of 33--1--3, which 'opens' that court to them.

The second clause requires that 'a speedy remedy' be 'afforded for every injury to person, property or character.' The plaintiffs do not argue that the refusal of the trial court to furnish a free transcript has denied them 'a speedy remedy.'

As we understand the position of the plaintiffs, it is that the denial of their request for a free transcript denies them Any remedy at the appellate level. We hold that such is not the case as will appear from our subsequent discussion in Part II A.

The last clause of art. II, § 6, provides that 'right and justice should be administered without sale, denial or delay.'

On this point plaintiffs argue that,

'* * * An indigent appellant faces an unsurmountable obstacle to meaningful appellate review if he must proceed without a trial transcript. Certainly, 'there can be no equal justice where the kind of trial a man gets...