Bowman v. Waldt
| Decision Date | 20 August 1973 |
| Docket Number | No. 1438--I,1438--I |
| Citation | 9 Wn.App. 562,513 P.2d 559 |
| Parties | Max M. BOWMAN, Appellant, v. Lawrence WALDT, Director of the King County Department of Public Safety, Respondent. |
| Court | Washington Court of Appeals |
Ann Greenberg, Seattle, for appellant.
Christopher T. Bayley, King County Pros. Atty., Michael F. Woodin, Deputy Pros. Atty., Seattle, for respondent.
This appeal concerns the court's duty, at therequest of an indigent judgment creditor, to require the director of the Department of Public Safety of King County, who functions as a sheriff, to levy a writ of execution on the judgment debtor's personal property without prepaying the statutory filing fees and without furnishing a sheriff's indemnity bond generally required of all judgment creditors.
Plaintiff Max M. Bowman obtained a $52.80 judgment against one Vila Fleck in the Small Claims Division of the Seattle District Justice Court. Upon Fleck's refusal to pay the judgment, plaintiff certified the judgment to the Seattle District Justice Court. That court issued a writ of execution against Fleck's personal property. The writ was delivered to the King County Department of Public Safety, which was charged with the responsibility of executing the writ. Plaintiff, according to his affidavit, was there informed defendant would not execute the writ until plaintiff paid approximately $25 in filing fees. They were said to consist of:
Levy $ 3.00
Notice of sale (3) 6.00
Copies (3) 4.00
Indemnity bond premium pursuant
to RCW 36.28.050 10.00
------
Total $23.00 plus mileage
There is no statutory $10 indemnity bond filing fee. We assume the $10 item is the indemnity bond premium charged by the private surety for issuing the bond to one who has the necessary financial resources to justify the surety undertaking the risk. Although we do not treat the $10 charge as a filing fee, we will assume the $10 charge is the premium required to be paid to obtain the bond for the filing of which no statutory filing fee is required.
Plaintiff, an indigent, was financially unable to pay the fees required or to obtain the bond. On the basis of a sworn affidavit attesting to his indigency, he requested prepayment of the fees described to him be waived. Defendant denied the request. Plaintiff thereupon sued to enjoin defendant, Director of the King County Department of Public Safety, from refusing to execute the writ of execution because of plaintiff's failure to prepay such fees. In due course, cross-motions for summary judgment were filed. The court granted defendant's motion for summary judgment and dismissed plaintiff's suit with prejudice, but without costs. Plaintiff then appealed in forma pauperis.
Plaintiff contends the trial court should have exercised its inherent power to require defendant to waive prepayment of required fees and, inferentially, to waive the necessity of furnishing the indemnity bond because of plaintiff's indigency; and, in any case, the court should have required such waiver because plaintiff, as an indigent, has a right under the due process and equal protection clauses of the state and federal constitutions to have execution issued on his judgment. He particularly relies on Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), later considered.
No doubt implicit in the state's insistence that the people of this state use courts as an alternative to self-help, there is an implied corresponding obligation that the state permit access to those courts. Such an implied obligation might be of little worth if, after using the courts and obtaining a judgment, the state, by its filing and cost requirements, denied an indigent judgment creditor the right to collect the judgment entered by the use of the judgment execution procedure provided by law. The question, therefore, is whether the statutory requirements applicable to all judgment creditors who seek to collect their judgments pursuant to a writ of execution are applicable to an indigent judgment creditor unable to comply by reason of his indigency.
RCW 36.18.040 authorizes the sheriff to collect the following fees:
For levying each writ of attachment or writ of execution upon real or personal property, besides mileage, three dollars;
* * *
* * *
For each mile actually and necessarily traveled by him in going to or returning from any place of service, or attempted service, ten cents;
* * *
* * *
For posting notices of sale, or postponement, two dollars besides mileage; . . .
RCW 36.18.060 provides for the prepayment of sheriff's fees as follows:
The officers mentioned in this chapter shall not, in any case, except for the state or county, perform any official services unless the fees prescribed therefor are paid in advance, and on such payment the officer must perform the services required. For every failure or refusal to perform official duty when the fees are tendered, the officer is liable on his official bond.
RCW 36.28.050 provides in part:
Any sheriff, or other levying officer, may require an indemnifying bond of the plaintiff in all cases where he has to take possession of personal property.
The prepayment of the sheriff's fees described and the furnishing of the indemnity bond are not fees and bond required to be paid and furnished to obtain a judgment. They are fees and an indemnity bond required to be furnished in order to collect a judgment obtained.
Courts have often recognized indigents are as much entitled to have access to the courts as are the more affluent. Courts at common law exercised an inherent power to permit an indigent to press his claim in the courts without the payment of filing fees or other requirements. O'Connor v. Matzdorff, 76 Wash.2d 589, 458 P.2d 154 (1969). In O'Connor the action was for replevin and damages for $215.50 brought in a justice court. The Supreme Court exercised its inherent power to require a waiver of the prepayment of statutorily-required court filing fees by an indigent. The court stated:
We hold that a justice of the peace has the inherent power to waive prepayment of the justice court fee where justice requires such action. Whether he should do so or not depends, of course, upon the showing of poverty made by the applicant and upon whether his claim appears to be brought in good faith and with probable merit.
76 Wash.2d at 606, 458 P.2d at 163.
In Ashley v. Superior Court, 82 Wash.2d 188, 509 P.2d 751 (1973), the court recognized its inherent power to waive a clerk's filing fee in a divorce case, although it refused to order the expenditure of public funds to pay the costs of service of process. The court said: To support the waiver of fees in forma pauperis, the applicant must make a clear showing to the court that, but for such waiver, the plaintiff would be unable to maintain the action for divorce, and that there are no alternative means available for procuring the fee. The plaintiff must show to the court's satisfaction that the indigency is genuine, the need for the divorce is real, the grounds are meritorious and neither frivolous nor transient, and the divorce action is brought without the connivance, concurrence or collusion of the defendant. Finally, it should be made to appear that the filing fees cannot be obtained from other sources nor taxed in advance upon the defendant spouse.
82 Wash.2d at 192, 509 P.2d at 754.
Courts of other states, in the exercise of inherent power, have waived a variety of fees and costs for the benefit of an indigent who might otherwise be denied access to the courts in the pursuit of his claim for relief. See generally Comment, Access to the Civil Courts: The Need for Continuing Reform, 37 Albany L.Rev. 135 (1972); Note, Indigent Access to Civil Courts: The Tiger Is at the Gates, 26 Vanderbilt L.Rev. 25 (1973).
Plaintiff contends the principles applicable to the waiver of the prepayment of fee requirements on behalf of an indigent for getting into court are also applicable to the waiver of statutory fees and bond required for collecting the judgment obtained. Assuming this to be so, we conclude the court neither abused its discretion in refusing to exercise its inherent power to waive fee and bond requirements, nor erred in refusing to treat the waiver of these requirements as mandated by the due process or equal protection clauses of the United States and state constitutions.
We first consider the constitutional provisions particularly in light of Boddie v. Connecticut, Supra; United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), and Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973).
Boddie v. Connecticut, Supra, was a class suit commenced by Connecticut welfare recipients who sought divorces. They contended state law requirements for the commencement of litigation, including payment of court fees and costs for service of process, unduly restricted their access to the courts and thus violated due process and equal protection requirements. The majority opinion of the Supreme Court of the United States upheld this contention in divorce cases. It pointed out the state has a monopoly on the dissolution of marriage by divorce and it would violate due process to deny an indigent the right to have a divorce by insisting upon the prepayment of fees he could not afford to pay. Justice Brennan concurred on the grounds that both due process and equal protection required that result. Justice Douglas relied upon the constitutional requirement of equal protection. Justice Black dissented. He subsequently pointed out that if Boddie was going to be the law, its rationale should be extended to all civil cases. He stated that 'no person can be denied access to those courts, either for a trial or an appeal, because he cannot pay a fee, finance a bond, risk a...
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