IN THE MATTER OF THE ADOPTION OF THE AMENDMENT TO RAP 15.2

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ORDER NO. 25700-A-671

The Court having recommended the adoption of the proposed amendment to RAP 15.2, and having determined that the proposed amendment will aid in the prompt and orderly administration of justice and further determined that an emergency exists which necessitates an early adoption;

Now, therefore, it is hereby

ORDERED:

(a) That the amendments as attached hereto is adopted.

(b) That pursuant to the emergency provisions of GR 9(i), the amendment will be published expeditiously and become effective upon publication.

DATED at Olympia, Washington this 2nd day of December, 1999.

	Ireland, J.
Smith, J.	Sanders, J.
Johnson, J.	Alexander, J.
Madsen, J.	Guy, C.J.
Talmadge, J.

(a) Motion for Order of Indigency. A party seeking review in the Court of Appeals or the Supreme Court partially or wholly at public expense must move in the trial court for an order of indigency. The motion must be supported by an affidavit setting forth the moving party's total assets; the expenses and liabilities of the party; a statement of the amount, if any, the party can contribute toward the expense of review; a statement of the expenses the party wants waived or provided at public expense; a brief statement of the nature of the case and the issues sought to be reviewed; and a designation of those parts of the record the party thinks are necessary for review; and a statement that review is sought in good faith. In any If the case is a civil case of a type which not listed in section (b)(2) of this rule does not involve a termination of parental rights or a disposition in a juvenile offence proceeding, the party must also demonstrate in the motion or the supporting affidavit 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 the trial Superior Court. The trial superior court shall decide the motion for an order of indigency, after a hearing if the circumstances warrant, as follows:

(1) Denial Generally. The trial superior court shall deny the motion if a party has adequate means to pay all of the expenses of review. The order denying the motion for an order of indigency shall contain findings designating the funds or source of funds available to the party to pay all of the expenses of review.

(2) Review at public expense. Cases Involving Crimes, Parental Rights, Juvenile offenses, Involuntary Commitments. In a criminal case, a case involving a termination of parental rights, or a case involving a disposition in a juvenile offense proceeding, or an involuntary commitment. tThe trial 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 for of appellate review. of:

(a) criminal prosecutions or juvenile offense proceedings,

(b) dependency and termination cases under Ch. 13.34,

(d) commitment proceedings under RCW 71.05 and 71.09,

(e) civil contempt cases directing incarceration of the contemnor,

(f) petitions for writ of habeas corpus under RCW 7.36, including attorneys fees upon a showing of extraordinary circumstances, and

(g) any other case in which the party has a constitutional or statutory right to counsel at all stages of the proceeding.

Comment to section 15.2(b):

This subsection describes the kinds of cases in which the superior court enters an order of indigency itself, without action by the Supreme Court. The content of that order is described in subsection (d). If the moving party is entitled to appointed counsel, the order will appoint an attorney for the moving party as well as provide for preparation and transmittal of the record. There is a right to appointed appellate counsel in criminal cases, juvenile offense proceedings, and any case in which there is a statutory right to counsel at all stages of the proceeding, such as dependency and termination cases and civil commitment proceedings. In re Grove, 127 Wn.2d 221, 897 P.2d 1252 (1995). See: RCW 10.101 as to determination of indigency and RCW 10.73.150 as to the right to counsel. Absent extraordinary circumstances, however, there is no right to appointed counsel in habeas corpus actions. Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). The superior court must address habeas petitioners' requests for counsel on a case by case basis.

An appeal from a court of limited jurisdiction may be directed to the Supreme Court, pursuant to RAP 4.3. Therefore, a court of limited jurisdiction may consider a motion for an order of indigency for the payment of the expenses for review in the Court of Appeals and Supreme Court. The procedure under this rule does not apply to appeals to the Superior Court from a court of limited jurisdiction.

(3) Other Civil Cases. If the case is a civil case which does not involve a termination of parental rights, disposition in a juvenile offense proceeding, or an involuntary commitment and In any other case, the trial court shall consider the motion for order of indigency and, if the party is unable by reason of poverty to pay for all of the expenses of review, the the trial superior court shall enter findings of indigency which shall be forwarded to the Supreme Court for consideration, pursuant to section (c) of this rule. The trial superior court shall determine in those findings the portion of the record necessary for review and the amount, if any, the party is able to contribute toward the expense of review. The findings shall conclude with an order to the clerk of the trial 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 the motion, and all other papers submitted in support of or in opposition to the motion. The trial superior court clerk shall promptly transmit to the Supreme Court the papers designated in the findings of indigency.

(c) Action by Supreme Court. If findings of indigency and other papers relating to the motion for an order of indigency are transmitted to the Supreme Court, the Supreme Court will determine whether an order of indigency in that case should be entered by the superior court. The determination will be made by a department of the Supreme Court on a regular motion day without oral argument and based only on the papers transmitted to the Supreme Court by the trial superior court clerk, unless the Supreme Court directs otherwise. If the Supreme Court determines that the party is seeking review in good faith, that an issue of probable merit is presented and that the party is entitled under the state or federal constitution to review partially or wholly at public expense, the Supreme Court will enter an order directing the trial court to enter an order of indigency. In all other cases, the Supreme Court will enter an order denying the party's motion for an order of indigency. The clerk of the appellate court will transmit a copy of the order to the clerk of the trial superior court and notify all parties of the decision of the Supreme Court.

(d) Order of Indigency. An order of indigency shall designate the items of expense which are to be paid with public funds and where appropriate, the items of expense to be paid by a party or the amount which the party must contribute toward the expense of review. The order shall designate the extent to which public funds are to used for payment of the expense of the record on review, limited to those parts of the record reasonably necessary to review issues argued in good faith. The order of indigency shall appoint counsel if the party is entitled to counsel on review at public expense. The order of indigency must be transmitted to the appellate court as a part of the record on review.

(e) Continued Indigency Presumed. A party and counsel for the party who has been granted an order of indigency must bring to the attention of the trial court any significant improvement during review in the financial condition of the party. The appellate court will give a party the benefits of an order of indigency throughout the review unless the trial court finds the party's financial condition has improved to the extent that the party is no longer indigent.

(f) Appointment and Withdrawal of Counsel in Trial Court. The trial court shall determine questions relating to the appointment and withdrawal of counsel for an indigent party on review,; except withdrawal as provided in section (h) and counsel appointed in a capital case, pursuant to SPRC 2 or RAP 16.25. If trial counsel is not appointed, trial counsel must assist counsel appointed for review in preparing the record.

(g) Review of Order of Indigency. Only a party in a criminal case of a type listed in section (b)(2) of this rule, in a case involving termination of parental rights, or a case determining whether a person is a juvenile offender may seek review of an order of indigency or an order denying an order of indigency entered by a trail court. Review must be sought by a motion for discretionary review.

(h) Withdrawal of Counsel in Appellate Court. If counsel can find no basis for a good faith argument on review, counsel should file a motion in the appellate court to withdraw as counsel for the indigent as provided in rule 18.3(a).

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

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