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Bob Ferguson

AGO 1953 No. 506 - Mar 30 1953
Attorney General Don Eastvold


 The absence of a statute expressly permitting the filing of pleadings in forma pauperis in a civil proceeding precludes the clerk from filing such papers.

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                                                                  March 30, 1953 

Honorable Ronald R. Hull
Prosecuting Attorney
Yakima County
102 Court House
Yakima, Washington                                                                                                             Cite as:  AGO 51-53 No. 506

 Attention:  !ttMr. Robert L. Fraser, Deputy Prosecuting Attorney

Dear Sir: 

            Receipt of your letter of March 11, 1953, is hereby acknowledged.  The question presented arises out of the following factual situation:

             A wife filed a complaint for divorce from her husband presently incarcerated in the state penitentiary.  The husband mailed his answer and motion for continuance to the clerk of the court who refused to file the answer for lack of a filing fee.  Upon being notified of the clerk's refusal to file the answer, the husband sent an affidavit and motion to file in forma pauperis.  The case has been continued.

            You inquire whether the defendant is entitled to have his pleadings filed in forma pauperis.

             It is our conclusion that since the county clerk has no discretion in these matters, the absence of a statute expressly permitting the filing of pleadings in forma pauperis in a civil proceeding precludes the clerk from filing such papers.


              [[Orig. Op. Page 2]]                                                                            

            Neither the constitution nor the statutes of this state have any provision for filing pleadings in forma pauperis in civil cases.  Although the question presented has not been passed upon in this state, the U.S. Supreme Court and the California Supreme Court have both considered it and have come to opposite conclusions, set forth below.                                                                           

             The U.S. Supreme Court, inBradford v. Southern Railway Co. (1904), 195 U.S. 243, 49 L.Ed. 178, said:

             "Costs are the creatures of statute, and it is settled that authority to permit prosecution in forma pauperis must be given by statute."

             The California Supreme Court, on the other hand, inMartin v. Superior Ct. (1917) 176 Cal. 289, 168 Pac. 135 L. R. A. 1918B, 313 (same case on subsequent appeal reportedsub nom. Majors v. Superior Ct., 181 Cal. 270, 184 Pac. 18), held that since the power of courts to remit fees in forma pauperis was inherent at common law, it exists in a civil case even without a specific statute.

             We point out these cases only to show the two positions which have been taken by the courts on the question.  We do not feel that under the statutes of this state the determination of the question presented requires a statement of which view this office would support.

             Under our statutes the county clerk has no discretion in the matter of the collection of a filing fee in a civil proceeding.  See RCW 36.18.020 and RCW 2.32.320.  Unless the fee accompanies the pleadings, the clerk has no authority to file the papers.  See RCW 36.18.060.  The fact that a motion to file in forma pauperis was received can have no effect upon this conclusion since statutory authority for such a procedure in a civil action is lacking.

             We express no opinion upon the question whether the court, in its discretion, could lawfully order the clerk to file pleadings in a civil case without the payment of the requisite fees, that being a matter for judicial ruling after a proper hearing in court.

              [[Orig. Op. Page 3]]

            Since we understand that your question with respect to an appearance has been resolved, we omit any discussion of it.

 Very truly yours,
Attorney General 

Assistant Attorney General