REWinn: Rule 34 vs. Rule 35 Explainer

Tuesday, March 16, 2010

Rule 34 vs. Rule 35 Explainer

Our Washington State Supreme Court is considering two changes to its general rules with confusingly similar names and aims: GR ("General Rule") 34 and GR 35. The purpose of this explainer to summarize each so you can decide how you stand and make a helpful comment if you so choose.

Basically, it's about money, and under what circumstances a court can or will charge people for access to justice. One rule (34) provides a systematic option for judges to waive fee; the other (35) prohibits court clerks from imposing fees without going through a certain procedure.

Both rules have advocates for and against, and I'm not going to get into that save to say that money is a problem both for people seeking to use the legal system and for people who have to support the legal system. Here's the bare facts, and then some links to where you might find more.

Titles:

GR 34
WAIVER OF COURT AND CLERK’S FEES AND CHARGES IN CIVIL MATTERS ON THE BASIS OF INDIGENCY

GR 35
CLERK’S FEES AND CHARGES

Purpose:

GR 34 establishes the process by which judicial officers may waive civil filing fees and such other costs for which judicial officers have authority to grant a waiver.
See http://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=231

GR 35 ensures that only those fees and charges that have been specifically authorized by statute or the Supreme Court will be assessed as a prerequisite to access to the judicial process.
See http://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=236

TEXTS

GR 34
WAIVER OF COURT AND CLERK’S FEES AND CHARGES IN CIVIL MATTERS ON THE BASIS OF INDIGENCY
(a) Any individual, on the basis of indigent status as defined herein, may seek a waiver of filing fees or costs from a judicial officer in the applicable trial court.
(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.

OFFICIAL COMMENT
This rule establishes the process by which judicial officers may waive civil filing fees and such other costs for which judicial officers have authority to grant a waiver.
(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).

GR 35
CLERK’S FEES AND CHARGES
Court clerks shall neither charge nor collect any fee or charge, except as authorized by statute or by the Supreme Court.

OFFICIAL COMMENT
None (yet).