Housing Authority of King County v. Saylors

• Decision Date: 18 November 1976
• Docket Number: No. 44131,44131
• Citation: 557 P.2d 321,87 Wn.2d 732
• Parties: The HOUSING AUTHORITY OF KING COUNTY, a Municipal Corporation, Respondent, v. Frances SAYLORS, Petitioner.
• Court: Washington Supreme Court

Page 732

87 Wn.2d 732

557 P.2d 321

The HOUSING AUTHORITY OF KING COUNTY, a Municipal Corporation, Respondent, v. Frances SAYLORS, Petitioner.

No. 44131.

Supreme Court of Washington, En Banc.

Nov. 18, 1976.

Rehearing Denied Jan. 11, 1977.

Stephen Quesenberry, Barbara A. Isenhour, and James E. Fearn, Jr., of Legal Services Center, Seattle, for petitioner.

R. George Ferrer and L. O. Hurst, Montgomery, Purdue, Blankinship & Austin, Seattle, for respondent.

Croil Anderson, Seattle, for Seattle-King County Bar Assn., amicus curiae.

ROSELLINI, Associate Justice.

This case is before the court upon a motion for an order of indigency and for the expenditure of public funds to pay the costs of prosecuting an appeal from a judgment in favor of the petitioner's landlord in an unlawful detainer action.

From the facts alleged in the briefs, it appears that the King County Housing Authority, a municipal corporation which provides subsidized housing to families of low income, determined that it would be necessary to terminate the petitioner's tenancy. She was served with a notice advising her that she would be terminated because she was maintaining a nuisance on the property. (The nature of the nuisance is not revealed.)

To challenge the proposed eviction, the petitioner, with the assistance of the Seattle Legal Services Center, pursued the administrative remedy which was provided in her lease in accordance with federal regulations. This included a conference with a management representative and a hearing before a panel composed of three fellow tenants. She was represented by counsel on both occasions. The hearing was conducted in accordance with regulations promulgated by the Department of Housing and Urban Development. At such a hearing either party may cause a record to be made. None was made in this case. After the hearing, the panel issued a written decision sustaining the Housing Authority's determination that there was cause for eviction of the petitioner.

The petitioner refused to vacate the premises after receipt of a copy of the decision. The Housing Authority then filed this unlawful detainer action. The petitioner, conceding that there had been a hearing as required in the lease, and that the hearing panel had found that cause for eviction was proven, nevertheless contended that the Housing Authority was required by law to prove, by evidence offered in court, that such cause existed. The superior court ruled that the admissions of the petitioner showed that the Housing Authority was entitled to the relief sought in the unlawful detainer action and entered judgment accordingly.

The petitioner filed notice of appeal and now seeks an order for the expenditure of public funds to finance it. She relies upon the case of Carter v. University of Washington, 85 Wash.2d 391, 536 P.2d 618 (1975), in which a plurality of this court held that, in a civil as well as in a criminal action, an indigent has a constitutional right to appeal without payment of the court's filing fee or without providing the cost bond required under ROA I--22. ¹ We are asked to reconsider that plurality holding, it being urged by the respondents that it was in error, without foundation in law, and contrary to public policy.

Before examining that opinion, we will review briefly the civil cases involving indigents which have come before this court in recent years, noting also relevant decisions of the Supreme Court of the United States.

The first of these was O'Connor v. Matzdorff, 76 Wash.2d 589, 458 P.2d 154 (1969), wherein we held that the courts of this state have the inherent power to waive the payment of filing fees (whether these fees are imposed by court rule or by statute) if justice demands it, and upon a showing that the action is brought in good faith and has probable merit.

In determining that this inherent power exists in justice courts as well as in the higher courts, we surmised that a substantial number of the claims of the poor, if indeed not a majority of them, fall within the justice court jurisdiction.

Subsequent to our decision in O'Connor v. Matzorff, supra, the United States Supreme Court decided Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, (1971). It held that due process of law requires that, where a state has preempted the right to dissolve the marriage relationship, it cannot place a barrier of court filing fees before an indigent seeking a divorce.

In Ashley v. Superior Court, 83 Wash.2d 630, 521 P.2d 711 (1974), a divorce action, filing fees had been waived, pursuant to O'Connor v. Matzdorff, supra, and there came before the court the question whether the indigent plaintiff was required to pay the expenses of publication and service of the summons and complaint. In a plurality opinion, we observed that the court had no power to waive the defendant's constitutional right to notice, but fashioned a means of giving notice which was appropriate in the circumstances and which made it unnecessary for the plaintiff to incur the expenses of publication and sheriff's service. Inherent in that opinion was a recognition that the court did not have the power to waive the sheriff's fees, which are provided for by statute, or to waive on behalf of a newspaper the costs of publication.

Ashley v. Superior Court, supra, was followed in Bullock v. Superior Court, 84 Wash.2d 101, 524 P.2d 385 (1974), where we again refused to order the waiver of sheriff's fees, and instead directed the trial court to devise an alternative means of service.

It will be noted that both of these cases were divorce cases and therefore came within the rule laid down in Boddie v. Connecticut, supra, that filing fees may not be required of indigents who seek dissolution of their marriages, control of such dissolution having been preempted by the state.

Following Boddie v. Connecticut, supra, the United States Supreme Court decided United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), in which it held that there is no constitutional right to free access to the bankruptcy courts, there being other avenues of relief available to a bankrupt, the right to a discharge in bankruptcy being neither a constitutional nor a 'fundamental' right (which demands a compelling governmental interest as a precondition to regulation), and there being a rational basis for a fee requirement.

That court also decided Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973), a case involving an Oregon statute which required a $25 filing fee in connection with applications made to the appellate courts to obtain review of agency decisions lowering welfare payments. The court determined that the indigent in those circumstances had no constitutional right to appeal without payment of the fee. It said that an interest in increased welfare payments does not have the constitutional significance of the interest that one has in dissolving his marriage and that the appellants had received an agency hearing, not conditioned on the payment of a fee, which was an adequate remedy. It stated that it had long recognized that, even in criminal cases, due process does not require a state to provide an appellate system.

In answer to a contention that the filing fee violated the equal protection clause by unconstitutionally discriminating against the poor, the court said that where the litigation is 'in the area of economics and social welfare' and does not involve any suspect classification, such as race, nationality, or alienage, the applicable standard is that of rational justification. The filing fee was rationally justified, as it was not disproportionate and provided some revenue to assist in offsetting the operating expenses of the court.

The rationale of the Kras and Ortwein decisions was followed by the Court of Appeals, Division 1, in Bowman v. Waldt, 9 Wash.App. 562, 513 P.2d 559 (1973), where it was urged that an indigent suitor who had recovered a $50 judgment was entitled to execution of the judgment without payment of the sheriff's fee and indemnity bond. Noting the similarity between the due process and equal protection clauses of U.S.Const. Amend. 14 and Const. art. 1, §§ 3, 12 (citing Olsen v. Delmore, 48 Wash.2d 545, 295 P.2d 324 (1956), and Herr v. Schwager, 145 Wash. 101, 258 P. 1039 (1927)), the court held that the appellant had no constitutional right to a waiver of the fees. It further held that the lower court did not abuse its discretion in refusing to waive the fees, finding the appellant's interest in obtaining execution upon his judgment was outweighed by the sheriff's statutory right to indemnification.

Orwein and Kras were also relied upon by the Court of Appeals, Division 3, in Malott v. Randall, 11 Wash.App. 433, 523 P.2d 439 (1974). The court there refused to order a waiver of the requirement of RCW 23A.08.460, that security be posted in a shareholder's derivative action.

In Iverson v. Marine Bancorporation, 83 Wash.2d 163, 517 P.2d 197 (1973), where a successful plaintiff appealed, claiming the judgment was inadequate, this court waived its fees (pursuant to ROA I--10(a)(1)(iii)), and in addition ordered the preparation of a free transcript and statement of facts and the waiver of the cost bond. It was not decided that these measures were constitutionally required; rather the decision was rested on the inherent power doctrine first recognized in O'Connor v. Matzdorff, supra. Justice Hale, dissenting, drew attention to the fact that there was neither a statutory nor a constitutional justification for waiver of a payment due a third party such as a court reporter and that O'Connor v. Matzdorff, supra, went no further than to find an inherent power in the court to waive its own filing fees. ²

Against the background of these cases, we turn to Carter v. University of Washington, 85 Wash.2d 391, 536 P.2d 618 (1975). The appellant in that case was a civil service employee of the university's...