Ferguson v. Keays

• Decision Date: 27 April 1971
• Court: California Supreme Court
• Parties: , 484 P.2d 70 Katherine FERGUSON, Plaintiff and Appellant, v. Leslie R. KEAYS, as Marshal, etc., Defendant and Respondent. Phyllis COLON, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Augustin COLON, Real Party in Interest. Lewis R. ROWE, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Darlene ROWE, Real Party in Interest. L.A. 29788 to 29790.

Page 398

94 Cal.Rptr. 398

4 Cal.3d 649, 484 P.2d 70

Katherine FERGUSON, Plaintiff and Appellant, v. Leslie R. KEAYS, as Marshal, etc., Defendant and Respondent.

Phyllis COLON, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

Augustin COLON, Real Party in Interest.

Lewis R. ROWE, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

Darlene ROWE, Real Party in Interest.

L.A. 29788 to 29790.

Supreme Court of California,

In Bank.

April 27, 1971.

Edward J. Owen, Thomas P. Burke, Morton M. Sider, Bennett Rolfe, Lauralea Trisler Saddick, Phillip C. Lancer, Los Angeles, Daniel B. Wilen and Vester G. Brady, for plaintiff and appellant Katherine Ferguson.

Aaronson, Goar, Pfiffner, Wurthman & Caspe, Aaronson, Caspe & Goar and Philip L. Goar, for petitioners Phyllis Colon and Lewis R. Rowe.

John D. Maharg, County Counsel, Donald K. Byrne, Asst. County Counsel, John P. Farrell and Michael H. Dougherty, Deputy County Counsel, for defendant and respondent Leslie R. Keays.

No appearances for respondent and for real parties in interest Superior Court of Los Angeles County, Augustin Colon and Darlene Rowe.

Thomas C. Lynch, Atty. Gen., Warren J. Deering, Asst. Atty. Gen., Laurence R. Sperber, Los Angeles, and Michael A. Fischer, Long Beach, as amici curiae.

BURKE, Justice.

We ordered these three cases transferred to this court on our own motion (rule 28, subd. (a), Cal.Rules of Court) so that we might consider whether the Courts of Appeal have the authority to waive the $50 fee required under Government Code section 68926 for filing the record on appeal in a civil case or a petition for a writ within their original jurisdiction. Upon a review of the applicable statutes and authorities, we have concluded that the Courts of Appeal and this court possess the inherent power to permit indigent civil litigants to seek appellate relief without the payment of the statutory filing fee, upon a satisfactory showing of indigence and a certificate of counsel attesting to the merits of the underlying action or appeal.

In each of the cases presently before us, an assertedly indigent applicant moved the Court of Appeal for relief from the $50 fee imposed by section 68926. In Ferguson v. Keays, applicant sought to appeal from the trial court's denial of mandate to compel recognition of a claim of exemption regarding certain items of personal property seized in the course of executing a writ of restitution (Code Civ.Proc. § 1174). In Colon v. Superior Court, applicant sought mandate from the Court of Appeal to compel the trial court to order the county to pay the necessary fees for publishing summons in applicant's suit to dissolve her marriage. In Rowe v. Superior Court, applicant sought mandate to compel the trial court to furnish him, for use on appeal, a free transcript of proceedings which led to an order denying modification of child support payments.

Although several states and the federal government have enacted statutory provisions relieving indigents from various fees and costs at the trial or appellate level of civil litigation, ¹ California has no such legislation. However, it was held in Martin v. Superior Court, 176 Cal. 289, 168 P. 135, that our trial courts have the inherent power, deriving from common law usage, to permit an indigent civil litigant to sue in forma pauperis. ²

Subsequent California cases have followed Martin to the extent of recognizing an inherent power in the trial courts to waive various fees and costs on behalf of indigent litigants in civil actions. (See Isrin v. Superior Court, 63 Cal.2d 153, 45 Cal.Rptr. 320, 403 P.2d 728 (jury fees); Majors v. Superior Court of Alameda County, 181 Cal. 270, 276, 184 P. 18 (jury fees); Roberts v. Superior Court, 264 Cal.App.2d 235, 241, 70 Cal.Rptr. 226 (bond on appeal to superior court); Bank of America v. Superior Court, 255 Cal.App.2d 575, 63 Cal.Rptr. 366 (cost bond); County of Sutter v. Superior Court, 244 Cal.App.2d 770, 775, 53 Cal.Rptr. 424 (cost bond); see also Fuller v. State of California, 1 Cal.App.3d 664, 82 Cal.Rptr. 78 (denying waiver of cost bond on technical grounds); 2 Witkin, Cal.Procedure (2d ed.) Actions, § 215 et seq., pp. 1073--1078.)

On the other hand in Rucker v. Superior Court, 104 Cal.App. 683, 685, 286 P. 732, involving a request by an indigent for a free transcript on appeal, the court attempted to distinguish Martin v. Superior Court, Supra, 176 Cal. 289, 168 P. 135, on the ground that 'The ruling there made was based upon the rights of the courts of common law to admit to sue In forma pauperis such poor persons as had not ability to pay the expenses incidental to the prosecution of actions to enforce their rights. It is not shown that this right extended to appeals or writs of error. The right of appeal is a creature of written law, and finds its authority in the Constitution and statutes of the state. (Citation.)' The court in Rucker (p. 685, 286 P. p. 732) also pointed out that 'there is no legal mode of requiring payment (for the transcription fees of the official reporter) * * * out of the public treasury.' Rucker's holding has been followed in Agnew v. Contractors Safety Assn., 216 Cal.App.2d 154, 156, 30 Cal.Rptr. 690, Legg v. Superior Court, 156 Cal.App.2d 723, 724--725, 320 P.2d 227, and Kaufman v. Brown, 106 Cal.App.2d 686, 688--689, 235 P.2d 632, each involving the cost of transcripts on appeal.

In the instant cases, we are not faced with the question whether indigents must be given funds by the county or some other source in order to pay transcript fees, publication costs, or other similar third-party charges. ³ Instead, we are solely concerned with the inherent power of an appellate curt to waive its own filing fees to accommodate indigent civil litigants. That such power exists, and may be exercised in the absence of statutory provisions to the contrary, seems apparent from our review of the pertinent authorities.

As explained in Martin v. Superior Court, Supra, 176 Cal. 289, 292--296, 168 P. 135, we must first ascertain whether the courts at common law had this power, for 'The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.' (Civ.Code, § 22.2.) Although the Rucker case, Supra, without citation of authority, questioned whether at common law the right to sue in forma pauperis extended to appeals or writs of error, several English cases prior to 1850 (when the common law was incorporated into our jurisprudence) had expressly recognized such a right. (See cases set forth in Drennan v. Andrews (Eng.1866) 1 Ch.App. 300, 301, fn. 7.) On the basis of our research, and in the absence of any definitive authority to the contrary, we conclude that the common law courts possessed and exercised the power to permit indigents to appeal in forma pauperis.

The existence of such a power at common law, however, is not conclusive with respect to the question presently before us, for as suggested in Martin, the courts should only exercise those common law powers which are not otherwise repugnant to or inconsistent with our Constitution and statutes; inherent powers should never be exercised in such a manner as to nullify existing legislation or frustate legitimate legislative policy. (176 Cal. at pp. 296--297, 168 P. 135.) Therefore, we must examine the applicable statutory provisions to determine whether or not they disclose a legislative intent to deprive the appellate courts of their inherent power to permit indigents to appear in forma pauperis.

Prior to 1963, the filing fee in the Courts of Appeal was $10 for an appeal (former Gov.Code, § 69144), and $7.50 for an original proceeding (former Gov.Code, § 69147). In 1963, however, the Judicial Council recommended that these fees be increased to $50, stating: 'Fees in the Supreme Court and District Courts of Appeal in civil cases serve both in helping to defray the cost of those courts and in the discouragement of unnecessary litigation. While the fees may historically have been sufficient to serve these purposes, they have not been substantially modified since 1895 and accordingly have not been adjusted to the quartering of the purchasing power of the dollar which has occurred since then. (Para.) * * * The Judicial Council believes that the time has arrived for a substantial increase in appellate court fees. The amount should be sufficient to compensate for the depreciation in the value of the dollar, and should be high enough so that frequent additional adjustments will not be needed in the future.' (Judicial Council of California, Nineteenth Biennial Report to the Governor and the Legislature (1963), ch. 10, p. 45.)

The Legislature adopted the Judicial Council's recommendations and in 1963 added a new article to the Government Code entitled 'Fees in the Supreme Court and District Courts of Appeal,' and commencing with these two pertinent sections: ⁴

Section 68926: 'The fee for filing the record on appeal in a civil case appealed to a court of appeal is fifty dollars ($50) for each notice of appeal contained therein. The fee for filing a petition for a writ within the original civil jurisdiction of the Supreme Court or of a court of appeal is fifty dollars ($50). Such fees are in full for all services through the rendering of the judgment or the issuing of the remittitur or peremptory writ except the fee imposed by Section 68927.'

Section 68927: 'The fee for filing a petition for hearing in a civil case in the Supreme Court after decision in a court of appeal is twenty-five dollars ($25).' ⁵

Further provisions require the Clerk of the Supreme Court and the Clerks of the Courts of Appeal to collect in advance the foregoing fees (Gov.Code, §§ 68847, 69143), which are to be paid to the State Treasury to the credit of the General Fund, and provide that each clerk 'is...