Skogerson v. McConnell

BAKES, Justice,

concurring specially:

I concur in reversing the district court’s dismissal of the McConnells’ appeal, but not for the reasons set out in the majority opinion.

The district court, citing I.R.C.P. 81(7), concluded that the cash appeal bonds required by I.C. §§ 1-2311 and -2312, and I.R.C.P. 81(7), could not be waived for indigents pursuant to I.C. § 31-3220, and accordingly dismissed the appeal. The majority has reversed the district court, relying solely upon Frizzell v. Swafford, 104 Idaho 823, 663 P.2d 1125 (1983), which concludes that those appeal bond provisions are unconstitutional as a violation of due process.

I cannot join the majority opinion for two reasons. First, I disagree with the notion that the appeal bond provisions in I.C. §§ 1-2311 and -2312, and I.R.C.P. 81(7), are in violation of due process. See Frizzell v. Swafford, 104 Idaho 823, 663 P.2d 1125 (1983), Bakes, J., dissenting. Secondly, regardless of the holding in Frizzell, fees, costs or surety bonds, such as those that must be posted for appeals from a small claims court under I.C. §§ 1-2311 and -2312 and I.R.C.P. 81(7) are waivable for indigent parties under I.C. § 31-3220.¹ The waiver provisions of I.C. § 31-3220 are obviously remedial and should be given broad application, including proceedings on appeal from the small claims court to the district court. As the majority points out, the appellants-McConnells, because of their indigency, were unable to post the cash appeal bond required by I.C. §§ 1-2311 and -2312, and I.R.C.P. 81(7). Therefore, the bonds were waivable under I.C. § 31-3220. Consequently, I fail to see how a violation of due process can occur when the appeal bond can be waived for these particular appellants. If the bond is waived, no bond is required, and no supposed violation of due process could possibly occur.

1 . See the 1982 amendment to Rule 81(7), the last sentence of which reads, “The notice of appeal shall not be filed by the clerk of the court without the prepayment of the filing fee, except as provided by section 31-3220, Idaho Code.”