WSR 02-01-027

RULES OF COURT

STATE SUPREME COURT


[ December 6, 2001 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENT TO RAP 15.2 (DELETE FORM 13, NEW FORM 13) )

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 ORDER

NO. 25700-A-723
     The Office of Public Defense having recommended the adoption of the proposed amendment to RAP 15.2, and the Court having approved the proposed amendment for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(f), the proposed amendment as attached hereto is to be published for comment in January 2002 in the Washington Reports, Washington Register, Washington State Bar Association and the Administrative Office of the Courts' websites.

     (b) The purpose statement as required by GR 9(d), 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, 2002. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 6th day of December 2001.
Gerry L. Alexander
CHIEF JUSTICE

RAP 15.2


Purpose: Washington State OPD requests that RAP 15.2 be changed to prescribe a form Motion for Order of Indigency for appellate indigency determinations. RAP 15.2 establishes procedures for the entry of orders of indigency for appellate cases. Pursuant to Rule 15.2 and RCW 10.101, the superior courts determine indigency for all appealing defendants, respondents, or petitioners in habeas corpus actions who seek review partially or wholly at public expense. Rule 15.2 presently requires the party to file a motion setting forth information about the party's financial circumstances by affidavit. There is a statewide prescribed form for determinations of defendants' indigency status for all trial-level cases, but not for appellate-level cases.


In February 2001, the Washington State OPD released a report on indigency procedures entitled Criteria and Standards for Determining and Verifying Indigency. (The executive summary is enclosed as supporting information.) After a statewide survey of the trial courts, Washington State OPD concluded that when parties file motions for determinations of indigency pursuant to RAP 15.2, they often lack precise standards for determining whether an appellant is indigent and do not always receive enough information from counsel or the party to adequately determine indigency. The report's findings were that "(t)he appellate indigency court rule should be amended to prescribe a mandatory, standard Motion for Order of Indigency..." and that "(s)ome Washington courts inappropriately apply an ad hoc presumption of indigency to appellate defendants who were found indigent at the trial level. At a minimum, brief rescreening should be conducted for each defendant seeking counsel at public expense."


RCW 10.101.020(6), the Indigent Defense Services Act, which applies to indigent persons "at any stage of a court proceeding" directs the Washington State Office of Public Defense to prescribe a form for offices or individuals charged by the trial courts to use to provide a written report and opinion as to indigency, which "shall include information necessary to provide a basis for making a determination with respect to indigency as provided by this chapter."


The suggested rule change provides that parties seeking review at public expense shall use a new suggested form prescribed by the Washington State Office of Public Defense. RAP 15.2's present language listing information to be included in the party's affidavit supporting an indigency motion is deleted, as this information is included in the suggested prescribed form and will be certified.



Suggested Rule Change

RAP 15.2

Determination of Indigency and Rights of Indigent Party



     (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 a review; a statement of 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. The party shall submit a Motion for Order of Indigency prescribed by the office of public defense to the trial court. In any case of a type not listed in section (b)(2) of this rule, 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 Court. The trial court shall decide the motion for an order of indigency, after a hearing if the circumstances warrant, as follows:

(1) Denial Generally. The trial 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. The trial 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 appellate review of:
(a) criminal prosecutions or juvenile offense proceedings,
(b) dependency and termination cases under Ch. 13.34,
(c) commitment proceedings under RCW 71.05 and 71.09
(d) civil contempt cases directing incarceration of the contemnor,
(e) petitions for writ of habeas corpus under RCW 7.36, including attorneys fees upon a showing of extraordinary circumstances, and
(f) any other case in which the party has a constitutional or statutory right to counsel at all stages of the proceeding.
(3) Other Cases. 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 trial 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 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 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 court clerk shall promptly transmit to the Supreme Court the papers designated in the finding 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 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 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 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 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 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 improvements 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 case of a type listed in section (b)(2) of this rule may seek review of an order of indigency or an order denying an order of indigency entered by a trial 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).



FORM 13. INVOICE OF COUNSEL FOR INDIGENT PARTY

[Rule 15.4(c)]


No. [appellate court]

[SUPREME COURT or COURT OF APPEALS, DIVISION _________]

OF THE STATE OF WASHINGTON


[Title of trial court proceeding ) Invoice of Counsel
with parties designated as in ) for Indigent Party
rule 3.4] )

     [Name of claimant counsel] submits this invoice to be paid from public funds. An order authorizing the expenses claimed by this invoice was entered in [name of court] on [date of entry]. ["A copy of the order is attached.” Or "The order of indigency is located at CP page__________”] My Social Security number [or, my firm's IRS employer identification number] is _____________.


     1.     I claim $__________ for attorney fees. I spent _____ hours on the review and a reasonable hourly charge is $________. I performed the following services:


          [List services; for example: "Reviewed record, prepared brief of appellant and reply brief of appellant, oral argument in Court of Appeals, and prepared cost bill."]


     2.     The following expenses were incurred for the review:


          [List each item of expense including preparing reproducible originals at the rate per page set pursuant to rule 14.3(b), the amount, and the total of all items listed.]


     3.     I have not filed another invoice in this cause.


     4.     The total amount of this invoice is [the totals from paragraphs 1 and 2] $______.


          I swear or affirm that the items listed are correct charges for necessary services rendered and expenses incurred for proper consideration of the review and I have not been promised compensation for the review from the indigent party or from any other source except as has been approved by the court.


Signature

[Name, address, telephone number, and

Washington State Bar Association membership number of claimant]

     SUBSCRIBED AND SWORN to before me this _______day of _____,19___

Notary Public in and for the State of

Washington, residing at _________

RULES ON APPEAL APPENDIX OF FORMS

SUGGESTED FORM 13


SUPERIOR COURT OF WASHINGTON

FOR ____________ COUNTY
(State of Washington),

(________________)

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(Plaintiff), )
(Petitioner) ) No. [trial court]
v. )

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 Motion for Order of Indigency - (Criminal), (Juvenile Offense), (Dependency), (Termination), (Commitment), (Civil Contempt), Habeas Corpus), (Appeal involving a Constitutional or Statutory Right to Counsel) Case
(Name) )
(Defendant) )
(Respondent) )
     ______________________, (defendant) (respondent) (petitioner), files a notice of appeal in the above-referenced (criminal), (juvenile offense), (dependency), (termination), (commitment), (civil contempt), (habeas corpus), (appeal involving a constitutional or statutory right to counsel) case, and moves the court for an Order of Indigency authorizing the expenditure of public funds to prosecute this appeal (wholly at public expense) (partially at public expense).
     The following certificate is made in support of this motion.
DATED:
(Defendant) (Respondent) (Petitioner)
- WSBA #
Attorney for (Defendant) (Respondent) (Petitioner)
CERTIFICATE
I, __________________________________, certify as follows:
1. That I am the (defendant) (respondent) (petitioner) and I wish to appeal the judgment that was entered in the above-entitled cause.
2. That I own:
( ) a. No real property
( ) b. Real property valued at $_________.
3. That I own:
( ) a. No personal property other than my personal effects
( ) b. Personal property (automobile, money, inmate account, motors, tools, etc.) valued at $_________.
4. That I have the following income:
( ) a. No income from any source.
( ) b. Income from employment, disability payments, SSI, insurance, annuities, stocks, bonds, interests, etc., in the amount of $________ on an average monthly basis. I received $_______ after taxes over the past year.
5. That I have:
( ) a. Undischarged debts in the amount of $__________.
( ) b. No debts.
6. That I am without other means to prosecute said appeal and desire that public funds be expended for that purpose.
7. That I can contribute the following amount toward the expense of review:
$__________.
8. The following is a brief statement of the nature of the case and the issues sought to be reviewed: ________________________ _________________________________________________________________________________________________________________________________________________________
9. I ask the court to provide the following at public expense, the following: all filing fees, attorney fees, preparation, reproduction, and distribution of briefs, preparation of verbatim report of proceedings, and preparation of necessary clerk's papers.
10. I authorize the court to obtain verification information regarding my financial status from banks, employers, or other individuals or institutions, if appropriate.
11. I certify that I will immediately report any change in my financial status to the court.
12. I certify that review is being sought in good faith. I designate the following parts of the record which are necessary for review:
( ) Pre-trial hearings Date(s):
Judge(s):
Court Reporter(s):
( ) Trial, excluding

 Date(s):
Judge(s):
Court Reporter(s):
( ) Post-trial hearings Date(s):
Judge(s):
Court Reporter(s):
( ) Sentencing hearing(s) Date(s):
Judge(s):
Court Reporter(s):
( ) Probation revocation Date(s):
hearings Judge(s):
Court Reporter(s):
( ) Other: Date(s):
Judge(s):
Court Reporter(s):

     I, ___________________________, certify under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.
Date and Place Signature of (Defendant) (Respondent) (Petitioner)

     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.

     Reviser's note: The brackets and enclosed material in the text of the above section 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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