Dennis R. Cookish v. Danielle Clark ( 2016 )


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  •                     THE STATE OF NEW HAMPSHIRE
    SUPREME COURT
    In Case No. 2015-0680, Dennis R. Cookish v. Danielle Clark,
    the court on May 26, 2016, issued the following order:
    Having considered the brief and record submitted on appeal, we conclude
    that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We
    vacate and remand.
    The plaintiff, Dennis R. Cookish, appeals an order of the Superior Court
    (McNamara, J.) denying his request to waive a sheriff’s fee for service of
    process. He argues that, based upon his indigence, he was entitled to waiver of
    the fee, and that by denying the request, the trial court deprived him of access
    to the court and a remedy under Part I, Article 14 of the State Constitution.
    The record establishes that in 2010, the plaintiff filed a civil action
    against the defendant, Danielle Clark, in superior court. In connection with
    the case, the trial court waived the sheriff’s fee and all but $5 of the filing fee.
    In 2012, the plaintiff obtained judgment in the amount of $4,264.60, plus costs
    and statutory interest.
    In June 2015, the plaintiff filed a motion for periodic payments of the
    judgment, see RSA 524:6-a (Supp. 2015), and a motion to waive fees. The trial
    court granted the motion to waive fees, but apparently did not waive the
    sheriff’s fee. It then issued a summons and ordered the plaintiff to have the
    sheriff’s office serve the defendant no later than September 30, 2015.
    On September 27, 2015, the plaintiff filed a motion to waive the sheriff’s
    fee, asserting that the sheriff’s office required prepayment of $50, that he was
    incarcerated, and that he did not have money to satisfy the fee. The trial court
    denied the motion without explanation. The plaintiff moved for
    reconsideration, asserting that his financial circumstances had not changed
    since the court had waived the sheriff’s fee in 2010, and that denial of the
    motion deprived him of access to the court and the right to a remedy under
    Part I, Article 14 of the New Hampshire Constitution. The trial court denied
    the motion, reasoning that “[t]he Plaintiff’s right to a remedy does not extend to
    the Court requiring the public to fund Plaintiff’s attempt to recover money.”
    Although we have observed that, under certain circumstances, the
    constitutional right of access to the courts may bar the imposition of fees for
    service of process upon a party who, by reason of poverty, cannot afford the
    fees, see Brown v. Brown, 
    112 N.H. 410
    , 411 (1972), we have never addressed
    whether the right to a remedy under Part I, Article 14 entitles an impoverished
    plaintiff to waiver of fees for service of process in order to collect a judgment.
    We note that courts in other jurisdictions have reached differing conclusions in
    similar cases. Compare Patrick v. Lynden Transport, Inc., 
    765 P.2d 1375
    ,
    1379 (Alaska 1988) (in invalidating bond requirement for nonresident plaintiffs
    on state equal protection grounds, observing that access to courts both to
    reduce a claim to judgment and to collect it is an important right protected by
    the Alaska Constitution), with Bowman v. Waldt, 
    513 P.2d 559
    , 562-64 (Wash.
    Ct. App. 1973) (holding that Washington Constitution did not require waiver of
    fees and costs charged by a sheriff for executing a writ of execution on behalf of
    an indigent judgment creditor).
    We need not decide in this case whether the New Hampshire
    Constitution entitled the plaintiff to waiver of the sheriff’s fee, however, because
    the trial court was statutorily authorized to waive it if it found that the plaintiff
    was indigent, and because it does not appear that the trial court considered its
    statutory authority. Cf. State v. Brouillette, 
    166 N.H. 487
    , 492-93 (2014)
    (declining to consider constitutional argument because the relevant statute
    granted the defendant relief). RSA 499:18-b (2010) expressly provides that
    “any person, by reason of poverty, may seek relief from the payment of any fees
    provided by law which are payable to any court, clerk of court, or sheriff,” and
    authorizes the trial court to “order the payment of such fees waived.” See also
    RSA 623-B:2, IV, :3, I, III (2001) (authorizing court to allow inmate to
    commence, prosecute, or defend any civil action or proceeding without
    prepayment of fees and costs if inmate is unable to pay such fees or costs, or
    upon such partial payment of fees and costs as inmate can afford). The trial
    court’s authority includes the waiver of “[f]ees for the service of process by
    sheriffs,” which “shall be a charge against the state” if waived. RSA 499:18-b.
    In this case, there is no indication in the record that the trial court
    considered its authority under RSA 499:18-b to waive the sheriff’s fee; it simply
    denied the request to waive the sheriff’s fee after it had earlier granted the
    plaintiff’s June 2015 motion to waive fees, and then reasoned on
    reconsideration that the plaintiff’s right to a remedy did not encompass a right
    to have the public subsidize his collection costs. The failure to exercise
    discretion is itself an unsustainable exercise of discretion. See DeButts v.
    LaRoche, 
    142 N.H. 845
    , 847 (1998). Accordingly, we vacate the trial court’s
    order denying the motion to waive the sheriff’s fee, and direct the trial court,
    upon remand, to reconsider the request pursuant to RSA 499:18-b.
    If the trial court, upon remand, exercises its discretion under RSA
    499:18-b to deny the motion to waive the sheriff’s fee, it shall issue written
    2
    findings of fact and rulings of law sufficient to allow for meaningful appellate
    review of its decision.
    Vacated and remanded.
    Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.
    Eileen Fox,
    Clerk
    3
    

Document Info

Docket Number: 2015-0680

Filed Date: 5/26/2016

Precedential Status: Non-Precedential

Modified Date: 11/12/2024