Earls v. Superior Court

• Decision Date: 24 November 1971
• Parties: , 490 P.2d 814 Mary Ann EARLS, Plaintiff and Appellant, v. The SUPERIOR COURT of SAN LUIS OBISPO COUNTY, Defendant and Respondent; COUNTY OF SAN LUIS OBISPO, Real Party in Interest and Respondent. L.A. 29889. In Bank
• Court: California Supreme Court

Page 302

98 Cal.Rptr. 302

6 Cal.3d 109, 490 P.2d 814

Mary Ann EARLS, Plaintiff and Appellant, v. The SUPERIOR COURT of SAN LUIS OBISPO COUNTY, Defendant and Respondent;

COUNTY OF SAN LUIS OBISPO, Real Party in Interest and Respondent.

L.A. 29889.

Supreme Court of California,

In Bank.

Nov. 24, 1971.

Burton D. Fretz, Santa Maria, Martin H. Kresse, San Francisco and Charlotte M Fischman, Santa Maria, for plaintiff and appellant.

Robert N. Tait, Dist. Atty., and Richard A. Carsel, Deputy Dist. Atty., for defendant and respondent and real party in interest and respondent.

MOSK, Justice.

Petitioner seeks a writ of mandate to compel respondent court to grant her motion to file a petition for dissolution of marriage without the payment of a filing fee. She alleges that on three occasions before filing the instant proceeding, she submitted to respondent court a motion to file her petition for dissolution of marriage in forma pauperis, supported by an affidavit setting forth facts indicating that she was indigent. Twice the motion was denied without any reason ascribed and a third time a secretary to one of the judges of the respondent court stated, without elaborating further, that the judge had determined petitioner had the 'resources' to pay the fee.

Petitioner thereupon applied to the Court of Appeal fro a writ of mandate to compel respondent court to accept her petition for filing. Within a few days after she applied to the appellate court for the writ, respondent court on its own motion set a date for hearing to determine whether petitioner was in fact able to pay the filing fee. Volunteer counsel appeared for petitioner at the proceeding and submitted an affidavit in support of her claim of indigency, but petitioner did not personally appear. The district attorney, representing the county, called as his only witness a welfare department investigator whose testimony will be discussed infra. At the conclusion of the hearing, the judge ruled that petitioner must pay the filing fee. The Court of Appeal subsequently denied the petition for a writ.

We granted a hearing not only because respondent court erred in concluding that petitioner was not indigent but also to prescribe some guidance to trial courts in the consideration of applications of the type involved here.

We begin with the indisputable proposition, not challenged by respondents, that if petitioner is in fact indigent she is entitled to file her action for dissolution of marriage without the payment of a filing fee. Boddie v. Connecticut (1971) 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, stands for the concept that a court may not refuse an indigent the right to file an action for divorce on the ground that the filing fee has not been paid, if the action is commenced in good faith. ¹ The Supreme Court held that such refusal amounted to a denial of due process of law since it deprived appellants, solely by reason of their poverty, of an opportunity to be heard upon the claimed right to a dissolution of marriage.

For many years prior to the decision in Boddie the courts of this state were deemed to have the inherent power to permit an indigent civil litigant to sue in forma pauperis (Martin v. Superior Court (1917) 176 Cal. 289, 296, 168 P. 135) and to waive fees and costs (e.g., Majors v. Superior Court of Alameda Co. (1919) 181 Cal. 270, 279--289, 184 P. 18). We recently held in Ferguson v. Keays (1971) 4 Cal.3d 649, 94 Cal.Rptr. 398, 484 P.2d 70, that appellate courts also possess the inherent power to waive filing fees for indigents. We emphasized in Ferguson, as did the United States Supreme Court in Boddie, supra, 401 U.S. 371 at pp. 381--382, 91 S.Ct. 780 at p. 788, that the broad policy of discouraging frivolous litigation and providing financial support for the judiciary does not justify depriving indigents of access to the courts (4 Cal.3d at p. 657, 94 Cal.Rptr. 398, 484 P.2d 70).

Thus, in the present case petitioner must prevail if she was in fact indigent. Respondents concede that petitioner's affidavit in support of her motion to proceed in forma pauperis established a prima facie showing of indigency. ² Yet the motion was summarily denied by the court on three occasions without a clue as to the existence of valid reasons justifying the denial. ³

While the propriety of prior denials of petitioner's applications may be moot by reason of the substitution of the instant proceeding, we indicate for the future guidance of trial courts that whenever a motion to proceed in forma pauperies is supported by an affidavit sufficient on its face to show indigency the court must grant the motion unless it has good reason to doubt the truthfulness of the factual allegations in the affidavit, and in that event it may decide the matter on conflicting affidavits, or in unusual circumstances order a hearing for the purpose of inquiring into the matter. ⁴ If the petitioner's affidavit is not sufficient the court must give its reasons for denying leave to proceed in forma pauperis. (See O'Neal v. United States (5 Cir., 1969) 411 F.2d 131, 138; Foster v. United States (6 Cir., 1965) 344 F.2d 698.) A statement of reasons for denial is essential not only to enable a prospective litigant to renew his application before the trial court if the defect can be corrected, but also to provide an appellate court with a basis for reviewing the trial court's denial.

We come, then, to the merits of petitioner's claim that she is entitled to proceed in forma pauperis. Her affidavit, executed under penalty of perjury, declares as follows: Petitioner desires to begin divorce proceedings against her husband but does not have the filing fee to pay to the court. She has four minor children, and fears that if she does not obtain a court order awarding her custody, her husband, who is now believed to be living with relatives in Texas, might attempt to remove them from the state. ⁵ Her husband has no money or property, and he earned a total of $28 in 1971.

Petitioner possesses no bank account and no property except for used household furniture. She has no car or telephone. Her total income is $263 a month in welfare aid. Monthly household expenses are as follows: $70 for food, $65 for rent, $15 for water, $20 for gas and electricity, $10 for clothing, $15 for transportation, $15 for laundry and cleaning, and $40 for household and personal care items. The $13 residue goes for incidentals, 'although we never seem to have any money left over because we are behind about $50 in utility bills.'

At the hearing the welfare investigator testified for the county that although he had made no personal investigation of petitioner's needs, a review of her affidavit indicated that she had a cash surplus of $52 a month. This conclusion was based upon his assertion that petition could purchase for $74 food stamps worth $126. She could, he testified, barter these food stamps for the household and necessary personal care items such as soap, to which she had attributed $40 in her budget. He stated further that her expenses were not out of line with those of the average welfare recipient.

At the conclusion of the foregoing testimony petitioner's volunteer attorney declared that he would not introduce any evidence in addition to the affidavit but that he desired to argue the case. The court replied, 'I don't need any argument. The Court will make a finding that the filing fees for divorce * * * is $27 and the cost of service will depend upon whether or not service can be made personally or must be published, and taking the outside figure, $30 for publication, that leaves $57. The Court will make a finding that she is not so indigent, within the meaning of the law covering In Forma Pauperis, that she can't pay these fees and costs to initiate her action. The Court will make a finding that she is capable of doing it, if not in one payment, she is capable of setting aside at least $10 a month for a period of four or five months to obtain her fees and costs. The status of the petition will not be changed. It will not be accepted for filing In Forma Pauperis.'

It seems evident from petitioner's affidavit, and it is conceded by respondents, that she made a prima facie showing of indigency in support of her motion. The only evidence introduced by respondent county in opposition to this showing was the welfare investigator's testimony that petitioner can use her food stamps to obtain household and personal care items to which petitioner had attributed $40 in her declaration. The asserted surplus of $10 a month which the court found petitioner could save to defray her court costs must come from this cource. Yet federal regulations not only prohibit the use of food stamps for any product not for human consumption (except alcohol annd tobacco and imported foods may not be purchased with food stamps) (7 C.F.R. §§ 270.2(s), 272.2(b)), but they provide that any unauthorized use of food stamps constitutes a felony or misdemeanor, depending upon the amount involved (7 C.F.R. § 270.4(b)). The regulations also state categorically that food stamps shall not be considered to be income or resources for any purpose under any state law (271.1(b)). ⁶

The district attorney, representing respondents, admits that the court was aware of these regulations. His only response to the obvious impropriety of considering food stamps as an asset redeemable for prohibited items is the astonishing suggestion that petitioner, by deliberately committing the crime of misusing food stamps could accomplish the payment of her filing fee. ⁷ We are dismayed that a public official would advance a proposition so palpably devoid of merit.

Respondent court's ruling that petitioner did not qualify as an indigent because she could obtain the filing fee by setting aside $10 a month for four or five...