Carter v. University of Washington

• Decision Date: 05 June 1975
• Docket Number: No. 42817,42817
• Citation: 85 Wn.2d 391,536 P.2d 618
• Parties: In the Matter of Sidney L. CARTER, Appellant, v. UNIVERSITY OF WASHINGTON, Respondent.
• Court: Washington Supreme Court

Page 391

85 Wn.2d 391

536 P.2d 618

In the Matter of Sidney L. CARTER, Appellant, v. UNIVERSITY OF WASHINGTON, Respondent.

No. 42817.

Supreme Court of Washington, En Banc.

June 5, 1975.

[536 P.2d 620] Sidney L. Carter, pro se.

Slade Gorton, Atty. Gen., James B. Wilson, Asst. Atty. Gen., Seattle, for respondent.

FINLEY, Associate Justice.

In this cause, the court is asked to grant appellant's motion to allow the filing of his appeal without the payment of costs or appeal bond requisite under ROA I--10 and I--22.

It appears that Appellant Carter was a civil service employee of the University of Washington Trucking Service. This employment was terminated because of his alleged violation of state and institutional regulations. Pursuant to RCW 28B.16.120, he sought and was granted review of his termination by the Higher Education Personnel Board. After a hearing, the Board upheld the termination by the University of Washington and dismissed the appeal. In accordance with RCW 28B.16.150, appellant sought review of the Board's ruling in the King County Superior Court. Following a hearing, the superior court issued its order affirming the Higher Education Personnel Board. It is this order of the superior court which appellant Carter seeks to appeal. ¹ Universal access to the courts is certainly not a novel concept in the annals of jurisprudence. Access to the courts was prized and protected by the Romans over 2,300 years ago. See Maguire, Poverty and Civil Litigation, 36 Harv.L.Rev. 361 (1964). ²

It is regrettable in a social and cultural sense that in the United States progress in terms of simplified, easier access to the courts and the administration of justice has been somewhat less than impressive. Fifty years ago, in 1924--25, the American Bar Association's Committee on Legal Aid Work drafted a model Poor Litigant's Statute which provided, Inter alia, that a poor litigant would be excused from giving security for costs and from payment of any fees. See generally Silverstein, Waiver of Court Costs and Appointment of Counsel for Poor Persons in Civil Cases, 2 Val.L.Rev. 21 (1967). But the ABA's model statute apparently has had only nominal influence in most jurisdictions in the development of poverty law. On the other hand, in O'Connor v. Matzdorff, 76 Wash.2d 589, 458 P.2d 154 (1969), the Supreme Court of Washington forthrightly provided some real judicial leadership in shaping the emerging rule that indigents should not be denied access to the justice system simply by reason of poverty. We perceive no adequate reasons to retreat from that leadership in the instant case.

The policy underlying equal access to the courts is not only sound but socially compelling. Our courts serve as a complaint desk for our society. Curiously enough, they have served reasonably well. Otherwise, the so-called social compact and our society as we know it might have come Policy, of course, cannot be the sole determinant of whether indigent access fees should or must be waived. However, there are two distinct and independent legal doctrines which, we are convinced, require that the policy considerations enunciated above be effectuated in the instant case.

unglued ere now. But this is no time for equanimity or self-serving encomiums. Our court system is the central mechanism for the orderly resolution of disputes that arise in our society between citizens and between citizens and the government. Moreover, it is manifest that there is a direct relation between access to the courts and the exertion of power within the system relative to the evaluation and resolution of citizens' grievances. Failure to [536 P.2d 621] provide equal access to the courts demonstrates not only a proverty of sensitivity to social problems but also is fraught with the dangers of alienating our citizenry from the system and encouraging self-help with concomitant breaches of the peace and likely overtones of violence. Indeed, much of the turmoil in our country in recent years has been attributed to the 'frustrations of the powerless.' See Report of the National Advisory Commission on Civil Disorders 5 (1968); Note, Boddie v. Connecticut: Free Access to Civil Courts For Indigents, 76 Dick.L.Rev. 749 (1972). See also Abrams, Access to the Judicial Process, 6 Ga.L.Rev. 247 (1972). Obstacles to access to the courts and our justice system undoubtedly exacerbate such frustrations. Therefore, whether the issue involves a simple unlawful detainer action, a challenge to fundamental societal arrangements or values, or as here, a challenge to the legality of terminating one's employment, it is imperative that All citizens be afforded effective access to our justice machinery to redress their grievances.

I. INHERENT POWER TO WAIVE COSTS

In O'Connor, supra, where the plaintiff could not afford the fees at the trial court level, we gave expression to a broad fee waiver power in the courts of this state. Recognizing that it would be a hollow gesture to ensure access to the trial courts without affording an opportunity to review and correct errors made at the trial level, this court subsequently waived the Filing fee and bond for costs on Appeal for an indigent. Iverson v. Marine Bancorporation, 83 Wash.2d 163, 517 P.2d 197 (1973). Several California decisions are in accord. See, e.g., Ferguson v. Keays, 4 Cal.3d 649, 94 Cal.Rptr. 398, 484 P.2d 70 (1971) (appellate filing fee); Roberts v. Superior Court, 264 Cal.App.2d 235, 70 Cal.Rptr. 226 (1968) (appellate cost bond); Bank of American Nat'l Trust & Sav. Ass'n v. Superior Court, 255 Cal.App.2d 575, 63 Cal.Rptr. 366 (1967) (non-resident plaintiff's cost bond); Note, California's Civil Appeal in Forma Pauperis--An Inherent Power of the Courts, 23 Hastings L.J. 683 (1972). Cf. In re Karren, 280 Minn. 377, 159 N.W.2d 402 (168).

The State, nevertheless, urges that waiver of a Cost bond would be improvident because it is designed as a means of protecting defendants from harassment and incurring unnecessary legal expenses on appeal. However, this consideration has been previously considered and adequately dispensed with in Iverson where we held that a defendant prevailing on appeal is authorized to file a claim with the legislature for the amount he is entitled to receive as costs, to the extent of the cost bond provided for in ROA I--22. See also, Honore v. State Bd. of Prison Terms & Paroles, 77 Wash.2d 660, 466 P.2d 485 (1970).

The case at bar thus falls squarely within Iverson. The only difference is that this case involves an appeal from an Administrative ruling. But this difference is surely irrelevant since erroneous rulings are no less likely to be rendered by administrative tribunals than by superior courts. Nor are we intimidated by the parade of horribles argument that the poor will en masse frivolously appeal from adverse administrative decisions. In O'Connor, this court considered and explicitly rejected such an argument. Indeed, we labelled 'groundless' the fears that the poor would abuse the judicial process if given access to it. Moreover, certain requirements were delineated in O'Connor which are a sufficiently strong antidote to any possibility of the State funding frivolous appeals by the poor. The appellant must demonstrate both (1) bona fide indigency; and (2) that the claim is in good faith and with Probable merit. If the appellant herein can meet these requirements, there is no justifiable reason for denying him review of the superior court's decision.

II. CONSTITUTIONAL RIGHT OF ACCESS TO THE COURTS

In Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), the Supreme Court of the United States enunciated what appeared to be the genesis for a general rule of access to the courts under the Due Process Clause of the Fourteenth Amendment. See generally Note, Indigent's Access to Civil Court, 4 Colum.Human Rts.L.Rev. 267 (1972); Note, Boddie v. Connecticut: Free Access to Civil Courts For Indigents, 76 Dick.L.Rev. 749 (1972); Note, Access to Bankruptcy Court for Indigents: The Extension of Boddie v. Connecticut, 16 St. Louis L.J. 328 (1971). This potentially catalytic decision, however, was restricted by the Burger Court with a 5--4 decision in United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973) (denial of waiver of filing fees for bankruptcy proceedings). This restriction of Boddie was subsequently reaffirmed in Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973) (denial of waiver of appellate filing fees for review of lowering of welfare benefits).

Notwithstanding Kras and Schwab, it is not yet certain that a case such as this would not require access to the courts pursuant to the Constitution of the United States. Several theories have been articulated upon which a right of access could be predicated. See Brickman, Of Arterial Passageways Through the Legal Process: The Right of Universal Access to Courts and Lawyering Services, 48 N.Y.U.L.Rev. 595, 628--37 (1973); Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One's Rights--Part I, 1973 Duke L.J. 1153; Comment, The Heirs of Boddie: Court Access For Indigents After Kras and Ortwein, 8 Harv.Civ.Lib.-Civ.Rights L.Rev. 571 (1973); Note, A First Amendment Right of Access to the Courts for Indigents, 82 Yale L.J. 1055 (1973). However, Kras and Ortwein have left the matter in considerable doubt. ³ Rather than become enmeshed in the vagaries of the right of access to the courts pursuant to the federal constitution, we deem it preferable to consider the question under our own Washington Constitution.

In this regard, whatever one's rights may be pursuant to the federal constitution, the State of Washington is always at liberty to grant its citizenry broader rights. Because of our conviction that judicial trepidation in the face of social need should not prevail, we forthrightly predicate a general right of access to the courts upon the Washington Constitution....