Bethany Whitcher v. Housing Authority of Henderson ( 2023 )

RENDERED: JUNE 23, 2023; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0609-DG
BETHANY WHITCHER APPELLANT
ON DISCRETIONARY REVIEW
v. FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN L. WILSON, JUDGE.
ACTION NUMBER 21-XX-00002
HOUSING AUTHORITY OF
HENDERSON APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CETRULO, JUDGES.
ACREE, JUDGE: Appellant Bethany Whitcher appeals the Henderson Circuit
Court order affirming the district court’s denial of her motion to proceed in forma
pauperis pursuant to KRS1 453.190. Having reviewed the record, we reverse.
1
Kentucky Revised Statutes.
Appellant is a single mother who formerly lived in public housing
before being evicted. Appellee, Housing Authority of Henderson, sought to evict
Appellant after she allegedly failed to properly comply with an annual public
housing recertification process. At the time of the eviction, Appellant’s only
income was $840 per month she received in child support payments and $430 per
month she received from the Supplemental Nutrition Assistance Program (SNAP).
Appellant’s SNAP benefits ended in May 2021. In the forcible detainer action to
evict her, Appellant proceeded without legal representation in the district court,
and the district court entered judgment against her on April 13, 2021.
After this, with the assistance of Kentucky Legal Aid, Appellant filed
a motion to proceed in forma pauperis in the district court. In support of this
motion, Appellant filed a Form AOC-026, an affidavit attesting to the above-stated
monthly income, as well as: $31 cash, no real estate or other assets, and significant
debt, which included credit card debt, student loans, and court fines. The district
court denied this motion, with the record revealing no discernable reason why.
On appeal to the Henderson Circuit Court, the circuit court affirmed
the district court’s decision in a written order barely one page in length. The
circuit court did not state why it was affirming, other than saying the court may
only overturn the lower court if there is clear error. The circuit court then
summarily said: “Having reviewed the record, the Court cannot conclude that
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there was clear error in this case.” The circuit court gave no further explanation.
Thus, it is unclear why Appellant was denied in forma pauperis status. Thereafter,
Appellant filed a motion for discretionary review, which this Court granted.
From 1976 until 2017, the General Assembly defined “poor person”
for purposes of waiving court costs and fees as follows:
A “poor person” means a person who is unable to pay the
costs and fees of the proceeding in which he is involved
without depriving himself or his dependents of the
necessities of life, including food, shelter, or clothing.
KRS 453.190(2) (1976) (unchanged by additions to KRS 453.190 per 1996 Ky.
Laws ch. 118 § 4 (H.B. 323) (eff. Jul. 15, 1996); subsection (2) amended by 2017
Ky. Laws ch. 158 § 1 (S.B. 120) (eff. Jun. 29, 2017). The subjective nature of this
standard is obvious. It is why, when it applied the statute in 1985, the Supreme
Court said the decision to grant in forma pauperis status, “like a decision on any
other question which is addressed to the sound discretion of the trial court, will not
be reviewed de novo, but will only be reversed if clearly erroneous. CR[2] 52.01.”
Bush by Bush v. O’Daniel, 700 S.W.2d 402, 405 (Ky. 1985). The statute had not
changed when this Court said the same thing. Edwards v. Van De Rostyne, 245
S.W.3d 797, 799 (Ky. App. 2008).
2
Kentucky Rules of Civil Procedure.
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In 2017, the General Assembly amended KRS 453.190(2). It now has
two parts, the first being an objective standard and the second the original
subjective standard, and it now reads as follows:
A “poor person” means [1] a person who has an income at
or below one hundred percent (100%) on the sliding scale
of indigency established by the Supreme Court of
Kentucky by rule or [2] is unable to pay the costs and fees
of the proceeding in which he is involved without
depriving himself or his dependents of the necessities of
life, including food, shelter, or clothing.
KRS 453.190(2). The additional objective standard is a relatively simple one to
apply and has only one factor – income. The trial court considers proof of the
applicant’s income and compares that to the sliding scale of indigency. If income
is at or below the scale’s measure, in forma pauperis status is granted; if income is
above it, such status is denied.
The General Assembly could have added the objective standard either
before or after the original language. It chose to place it first in the sequence. In
the final analysis, the sequence may not matter. However, this sequencing
indicates an intention that the objective standard should first be applied; its definite
criteria, if met, facilitates an equally definite and clear-cut judicial determination.
But this one-size-fits-all approach does not account for subjective circumstances
that make meritorious cases of those that do not qualify under the objective
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standard. Hence, the General Assembly retained the original subjective standard
for application in the alternative.3
The addition of this objective standard does not affect the standard of
review on appeal. It remains as stated in CR 52.01. “If the trial judge’s findings of
fact in the underlying action are not clearly erroneous, i.e., are supported by
substantial evidence, then the appellate court’s role is confined to determining
whether those facts support the trial judge’s legal conclusion.” Commonwealth v.
Deloney, 20 S.W.3d 471, 473-74 (Ky. 2000). However, while deferential to the
lower court’s factual findings, appellate review of legal determinations and
conclusions from a bench trial is de novo. Sawyers v. Beller, 384 S.W.3d 107, 110
(Ky. 2012).
Because the district court used Form AOC-026, it simply checked a
box denying Appellant’s application and made no findings of fact. On review, we
examined the record to determine what evidence of Appellant’s income might have
contradicted her affidavit of income. We found none.
As discussed below, there can be no question Appellant met the
objective standard defining “poor persons” to allow her to proceed in forma
pauperis. “[I]f the appellant had shown conclusively that she was a poor person
3
There is no explanation why the form used in this and similar cases, Form AOC-026 (p. 3),
reverses the sequence.
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within the meaning of KRS 453.190, then it was an abuse of discretion if the trial
court did not permit her to proceed in forma pauperis.” Salyers v. Cornett, 566
S.W.2d 418, 419 (Ky. 1978).
Supreme Court Order 2017-12 sets forth the applicable sliding scale
of indigency under KRS 453.190(2) and says applicants who head households of
two persons, such as Appellant, and whose household income is less than $17,420,4
qualify for status as a “poor person”; i.e., qualify for indigency status.
Appellant’s income is only $10,080 – more than six thousand dollars
below the income threshold on the scale.5 Because Appellant’s income is below
the threshold, she qualifies as a poor person and is entitled to proceed in forma
pauperis. Neither the district court nor the circuit court identifies a reason for
deviating from the guidelines.
Accordingly, denial of in forma pauperis status constitutes clear error
on the district court’s part. Why the circuit court determined no clear error
occurred is not discernable from either the record or the circuit court’s order.
4
Supreme Court Order 2017-12 originally shows this amount as $16,420; however, the order
states it “will be updated annually to reflect the most current Federal Poverty Guidelines” which,
for the applicable time frame, was $17,420.
5
Appellant asserts KRS 403.212(3)(b) excludes from income for the purpose of calculating what
it takes to raise a child any “benefits received from means-tested public assistance programs[.]”
We need not determine whether that rule applies to KRS 453.190(2) for two reasons: (1)
Appellant no longer received SNAP after May 2021 and (2) even including the additional SNAP
moneys would yield income of only $15,420, still two thousand dollars below 100% of the
sliding scale for indigency.
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The current version of KRS 453.190(2) could not be clearer, and
Appellant’s evidence could not have been more persuasive.
For the aforementioned reasons, we reverse.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FILED FOR APPELLEE.
Katina Miner
Lauren Andrini
Bowling Green, Kentucky
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