Grove, In re
| Decision Date | 13 July 1995 |
| Docket Number | 60953-5 and 60949-7,Nos. 60945-4,s. 60945-4 |
| Citation | 127 Wn.2d 221,897 P.2d 1252 |
| Court | Washington Supreme Court |
| Parties | In re Dependency of Tammy GROVE and Joshua Grove, Jim G. Grove, Petitioner, v. The STATE of Washington, Respondent. In re Detention of Ronald Lane PETERSON, Petitioner. The STATE of Washington, KING COUNTY, Respondent. Charles SMITH, Petitioner, v. NATIONAL SEMICONDUCTOR CORPORATION, Respondent. |
Jim Grove, Olympia, WA, pro se.
Suzanne Lee Elliott, Washington Appellate Defender Ass'n, Seattle, for Jim S. Grove.
Christine Gregoire, Atty. Gen., Marie Westermeier, Nancy T. Day, and John R. Wasberg, Assistants, Seattle, for Dept. of Labor & Industries.
Bernadette Foley, David B. Hirsch, Public Defender Ass'n, Seattle, for Ronald Lane Peterson.
Norm Maleng, King County Prosecutor, Michael J. Lang, Deputy, Seattle, for State, King County.
Charles Smith, Puyallup, pro se.
Leslie O. Stomsvik, Tacoma, for Charles Smith.
Charles D. Broderick, Seattle, for Nat. Semiconductor Corp.
With these three consolidated cases, we begin the process of clarifying the standard to be applied in determining when an indigent litigant's civil appeal will be funded by the State of Washington.
This court has not published an opinion in this area since 1977, just 1 year after RAP 15.2, our procedural court rule governing public funding of appeals, became effective. 1 Since that time, action on the part of this state's Legislature has reshaped the law affecting indigent litigants. Because RAP 15.2 has not kept pace with these changes, some confusion exists with respect to when litigants in civil cases have a right to appeal at public expense.
We asked for briefing and argument on these three motions for expenditure of public funds in order to explain when indigent civil litigants in these specific kinds of cases are entitled to appeal at public expense.
Each of the parties seeking review here has been determined to be indigent, and each has asked this court to approve public payment of the expenses which are necessarily incident to appellate review. Additionally, they have asked that counsel be appointed to represent them on appeal at public expense.
In In re Grove, the first of the three cases we now examine, the petitioner is the father of two children who are the subject of a juvenile court dependency action. 2 Under RCW 13.34, this state's dependency statute, a parent has a right to be represented by counsel at all stages of the proceeding and, if indigent, to have counsel appointed by the court. RCW 13.34.090. A parent also has the right to appeal the disposition decision which follows the finding of dependency. RAP 2.2(a)(5). The issues before us in this dependency case are the following: 3
(1) Where the Legislature has provided a statutory right to counsel at "all stages of a proceeding", is there a right to counsel on an appeal of right?
(2) If a right to counsel on appeal exists, does it include the right to public funding of the expenses necessary to adequately present the appeal?
In In re Peterson, the second case, the State filed a petition pursuant to the sexually violent predator act, RCW 71.09, alleging that Ronald Lane Peterson was a sexually violent predator and asking that he be transferred from a correctional facility to an appropriate facility for evaluation. A person accused under the sexually violent predator act has a statutory right to counsel at "all stages of the proceedings", and counsel will be appointed for indigent parties. RCW 71.09.050. After the trial court found probable cause to believe Peterson was a sexually violent predator, the court ordered that he be transferred to a special commitment center for evaluation and further that he remain at that center until trial. Peterson filed a motion for discretionary review of the trial court's interlocutory order.
The issue in this second case is whether a right to appeal at public expense includes the right to move for discretionary review of an interlocutory trial court order.
In Smith v. National Semiconductor Corp., the third case, a worker seeks review of a jury verdict which resulted in the termination of worker compensation benefits. There is no statutory or constitutional right to counsel in this case. The only interest at stake is a financial one.
The issue in this third case is whether a civil litigant, who has an alleged property interest which is threatened by a private party, has a right to appeal at public expense solely because he or she is indigent.
Increasingly, the cost of civil litigation weighs against easy access to our courts. The question of who pays for the efficient use of the appellate system is a difficult one. Where fundamental constitutional rights are not threatened, the answer to this question properly belongs with the Legislature. It is the Legislature that has the power to tax, the power to appropriate funds, and that is answerable to the public for the expenditure of taxes collected. Because public resources are limited and the number of indigent criminal cases is high, 4 the State is forced to prioritize those cases in which the public will be required to fund civil appeals. 5
We first turn to the two motions considered here in which the request for public funding is based on a statutory right to counsel at "all stages of the proceedings". This right has been granted by the Legislature in these two cases, one a dependency case and the other an action under the sexually violent predator act. 6
Again, the issues are as follows:
1. Where the Legislature has provided a statutory right to counsel at "all stages of a proceeding", is there a right to counsel on an appeal of right?
2. If a right to counsel on appeal exists, does it include the right to public funding of the expenses necessary to adequately present the appeal?
3. Does the right to appeal at public expense include the right to move for discretionary review of an interlocutory trial court order?
Our current procedure for determining when an indigent civil litigant should be permitted to appeal at public expense is governed by In re Lewis, 88 Wash.2d 556, 564 P.2d 328 (1977), our most recent opinion on the issue, and by RAP 15.2.
In re Lewis, a 1977 4-person departmental decision, held:
Equal protection requires the state to provide appointed counsel for appeal and a right of appeal at public expense in those classes of cases in which indigents are entitled to appointed counsel at the trial level and a right of appeal is provided. This principle was developed in criminal cases but it applies to other disputes involving matters of such a fundamental nature as to require appointment of counsel at the trial level, such as juvenile delinquency proceedings and proceedings concerning possible permanent deprivation of parental rights. ... Where issues of a less fundamental nature are involved, the right to pursue remedies at public expense is considerably more limited. In such cases, in addition to establishing indigency and good faith, the moving party has an obligation to allege facts and cite authority demonstrating that the appeal is well taken and a miscarriage of justice has occurred. Upon such a showing the court may exercise its inherent power to waive fees; however, it is not required that the state supply counsel.
In re Lewis, 88 Wash.2d at 558-59, 564 P.2d 328.
Under the In re Lewis holding there are two classes of indigent civil appellants. First are those who have a right to counsel at trial and a right to appeal. In re Lewis holds these appellants have a right to public funding of their appeals, including the right to appointed counsel. Second are those involved in all other civil cases. In re Lewis holds that, in this latter class (cases where the issue is of a less fundamental nature), public funding of an appeal is discretionary with this court and is based on a showing that the appeal is taken in good faith, has merit and that it is necessary to correct a miscarriage of justice. In re Lewis, at 559, 564 P.2d 328.
Our court rule, RAP 15.2, is not entirely consistent with In re Lewis; it provides:
(a) Motion for Order of Indigency. A party seeking review partially or wholly at public expense must move in the trial court for an order of indigency.... If the case is a civil case which does not involve a termination of parental rights or a disposition in a juvenile offense proceeding, the party must also demonstrate ... that the issues the party wants reviewed have probable merit and that the party has a constitutional right to review partially or wholly at public expense.
(b) Action by Superior Court. The superior court shall decide the motion for an order of indigency, after a hearing if the circumstances warrant, as follows:
(1) Denial Generally. The superior court shall deny the motion if a party has adequate means to pay all of the expenses of review....
(2) Cases Involving Crimes, Parental Rights, Juvenile Offenses. In a criminal case, a case involving a termination of parental rights, or a case involving a disposition in a juvenile offense proceeding, the superior court shall grant the motion and enter an order of indigency if the party seeking public funds is unable by reason of poverty to pay for all or some of the expenses of appellate review.
(3) Other Civil Cases. If the case is a civil case which does not involve a termination of parental rights or a disposition in a juvenile offense proceeding and if the party is unable by reason of poverty to pay for all of the expenses of review, the superior court shall enter findings of indigency.... The findings shall conclude with an order to the clerk of the superior court to promptly transmit to the Supreme Court, without charge to the moving party, the findings of indigency, the motion for an order of indigency, the affidavit in support of...
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