GR 34 - Waiver of Court and Clerk's Fees and Charges in Civil Matters on the Basis of Indigency

• Proposed New Rule GR 34 - Waiver of Court and Clerk's Fees and Charges in Civil Matters on the Basis of Indigency (in Word Format)
• Comments Received for GR 34 - Waiver of Court and Clerk's Fees and Charges in Civil Matters on the Basis of Indigency

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.

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.