IN THE MATTER OF THE ADOPTION OF NEW GR 34-WAIVER OF COURT'S AND CLERK'S FEES AND CHARGES IN CIVIL MATTERS

) ) ) )

ORDER NO. 25700-A-917

     The Washington State Bar Association having recommended the adoption of New GR 34-Waiver of Court's and Clerk's Fees and Charges in Civil Matters, and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(g), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January, 2010.

     (b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

     (c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2010. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 2nd day of April, 2009.

	For the Court
	Gerry L. Alexander
	CHIEF JUSTICE

     Purpose: An initial version of this suggested rule was presented to and approved by the Board of Governors of the Washington State Bar Association in 2007. The rule was published for comment by the Supreme Court in November 2007. Substantial comments were submitted to the Court, including comments from the Washington Association of County Clerks (Clerks Association) and the Superior Court Judges Association (SCJA) opposing the rule. Principal substantive grounds for their opposition were:

•	The proposed rule authorized non-judicial officials to accept filings without payment of fees and without independent review by a judicial officer.
•	The proposed rule established a 200% threshold for indigency which, if adopted, would result in a substantial revenue loss for cash strapped court systems.
•	The rule authorized waiver of a wide range of costs.
•	The forms developed to implement the rule were complex, unwieldy and difficult for pro se litigants to understand.

     A revised version of the suggested rule was submitted to the Supreme Court in March 2008. The Superior Court Judges Association filed additional comments which reflected continuing objections to the rule. In response to these objections, the WSBA Pro Bono and Legal Aid Committee (PBLAC) worked directly with the SCJA leadership and that of the Clerks Association to see whether a consensus approach might be developed. PBLAC achieved a meeting of the minds with the SCJA on a substantially revised version of the draft rule, but was not able to achieve agreement with the Clerks Association.

     The revised draft is substantially different in approach than that which was previously submitted to the Court. It includes no forms, but directs that pattern forms be developed by the Administrative Office of the Courts. It provides a simple mechanism for the submission and presentation of requests for fee and cost waivers, consistent with local court practices. It allows for simultaneous filing of requests for fee and cost waivers with the underlying pleadings. It establishes a uniform standard for determining indigency - one that is consistent with the standard for determining eligibility used by "qualified legal services providers" (see APR 8(e)). It provides for presumptive eligibility for waivers for those litigants represented by attorneys affiliated with qualified legal services providers (including pro bono attorneys who receive client referrals from a qualified legal services provider). It preserves the proper balance between judicial and executive branch functions. And, consistent with longstanding Supreme Court case law,¹ it affirms the power of judicial officers, in the exercise of inherent judicial authority, to waive such fees and costs as are appropriate, consistent with their responsibility to ensure fair access to the courts.

¹ O'Connor v. Matzdorff, 76 Wn.2d 589, 458 P.2d 154 (1969).

     The WSBA believes that this revision is consistent with the objectives initially sought to be achieved with the original GR 34 proposal, to wit:

•	Establishment of a statewide, uniform approach to presentation, consideration and approval of requests for waiver of fees and costs for low income civil litigants, whether they are represented by legal aid programs, pro bono attorneys or appear in the proceeding pro se.
•	Establishment of a uniform standard for determining indigency that is consistent with the standard employed by state and federally funded civil legal aid programs.
•	Streamlining the process such that those who have been found eligible for state or federally funded civil legal aid services are presumed eligible for a waiver of filing fees and appropriate costs.
•	Reducing the amount of time that pro bono attorneys spend developing and presenting in forma pauperis (IFP) requests, thereby allowing them to spend more time on the substantive issues presented in their cases.

     The revised rule preserves the proper balance between judicial and executive branch functions. Upon the rule's adoption by the Supreme Court, the PBLAC and the SCJA will work with the Administrative Office of the Courts, the Clerks Association and representatives of the legal aid community to develop appropriate forms and a training curriculum designed to ensure the effective and proper application of this rule by judicial officers throughout the state.

     (1) The application for such a waiver may be made ex parte in writing or orally, accompanied by a mandatory pattern form created by the Administrative Office of the Courts (AOC) whereby the applicant attests to his or her financial status or, in the case of an individual represented by a qualified legal services provider ("QLSP") or an attorney working in conjunction with a QLSP, a declaration of counsel stating that the individual was screened and found eligible by the QLSP.

     (2) The court shall accept an application submitted in person, by mail and where authorized by local practices, electronic filing. The process for presentation of the application shall conform to local court and clerk processes for presenting ex parte orders to the court directly or via the clerk. All applications shall be presented to a judicial officer for consideration in a timely manner and in conformity with the local court's established procedures. There shall be no locally imposed fee for making an application. The applicant or applicant's attorney filing by mail, shall provide the court with a self addressed stamped envelope for timely return of a conformed copy of the order.

     (3) An individual who is not represented by a qualified legal services provider (as that term is defined below) or an attorney working in conjunction with a qualified legal services provider shall be determined to be indigent within the meaning of this rule if such person, on the basis of the information presented, establishes that:

     (A) he or she is currently receiving assistance under a needs-based, means-tested assistance program such as the following:

     (i) Federal Temporary Assistance for Needy Families (TANF);

     (ii) State-provided general assistance for unemployable individuals (GA-U or GA-X);

     (iii) Federal Supplemental Security Income (SSI);

     (iv) Federal poverty-related veteran's benefits; or

     (v) Food Stamp Program (FSP); or

     (B) his or her household income is at or below 125% of the federal poverty guideline; or

     (C) his or her household income is above 125% of the federal poverty guideline and the applicant has recurring basic living expenses (as defined in RCW 10.101.010 (4)(d)) that render him or her without the financial ability to pay the filing fees and other fees or costs for which a request for waiver is made.

     (D) other compelling circumstances exist that demonstrate an applicant's inability to pay fees and/or costs.

     (4) An individual represented by a QLSP, or an attorney working in conjunction with a QLSP that has screened and found the individual eligible for services, is presumptively deemed indigent when a declaration from counsel verifies representation and states that the individual was screened and found eligible for services.

     (5) As used in this rule, "qualified legal services provider" means those legal services providers that meet the definition of APR 8(e).

     (b) Nothing in this rule shall prohibit or delay action on the underlying petition upon the court's approval of a waiver and presentation of an original petition may accompany the initial fee waiver.

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The typographical error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.

© Washington State Code Reviser's Office