Kelsey v. Hanson

RUSSON, Judge

(dissenting):

I dissent. I would stand by the judgment of the trial court and deny Ms. Kelsey’s petition for a writ of mandamus.

When an attorney learns that a new client, who is seeking a divorce, is indigent, that attorney has three responsible courses of action: (1) to represent the client, advance codrt costs (filing fees), bill the client for such advanced costs as well as attorney fees, and then seek an award, on the client’s behalf, of such costs and attorney fees from the adverse party; (2) to represent the client pro bono and seek waiver of court costs; or (3) to refer the client to the Legal Aid Society,¹ where, upon acceptance, legal services will be rendered free of charge and waiver of the filing fee routinely obtained.

Mr. Barnard did none of these things. Instead, he charged Ms. Kelsey, his indigent client, a fee of $100, prepared a divorce complaint in her name pro se, and prepared an affidavit of impecuniosity for her to sign, attesting to her poverty and seeking waiver of the filing fee. He then left Ms. Kelsey to fend for herself at the hearing in district court on the divorce and on the petition to waive the filing fee.

In Gresham v. Page, 411 P.2d 251 (Okla.Crim.App.1966), a criminal defendant sought a writ of mandamus to compel the trial court to furnish him with a copy of his case at public expense. He filed an affidavit in forma pauperis in support thereof. The court denied the writ on several grounds, including insufficiency of proof, wherein the court stated:

With reference to the third matter of fact, and conclusion of law, provided by the trial court: that petitioner failed to meet the burden of proof that he was an indigent at the time of trial, is consistent with the evidence before the court. This court takes notice of the fact that Tulsa County provides competent legal counsel in the Public Defender’s office. At the time of trial, petitioner could have asked for the assistance of that office; but instead, he chose to employ counsel of his own choosing. This action is within his own power of discretion.... but it likewise seems to indicate that at that time petitioner was not a pauper.

Id. at 254-55.

Judge Hanson found that since Ms. Kelsey had retained the services of a private attorney and paid him an attorney fee, she was not impecunious for purposes of waiving payment of the filing fee. He stated:

Well, I guess the thing that concerns me, Ms. Kelsey, is that Mr. Barnard apparently doesn’t have any difficulty getting paid for his fees, but then he prepares, after he takes his fees, a document for you to tell me that you don’t have any money to pay the filing fees for the court.

Furthermore, he stated:

Well, I’m going to go ahead and hear this matter, Ms. Kelsey, but in all good conscience to the taxpayers of this community, I cannot approve this Affidavit of Impecuniosity, and the reason I cannot— I have no problem approving the waiving of filing fees for persons who legitimately do not have the funds to pay. But the thing that concerns me is that you do apparently have the funds to pay an attorney, or at least pay his paralegal, whatever Mr. Barnard is doing over there. But if you’re truly impecunious, he ought to be handling this matter without costs.

And:

While you may be impecunious, if you’re not impecunious for paying attorney’s fees, you’re not going to be impecunious for paying filing fees. It seems to me if the taxpayers are going to bear the burden for all of this, Mr. Barnard ought to be able to do this for nothing, or at the very least, reduce his fees by the filing fees.

Even Ms. Kelsey thought it strange that she had to pay a fee to the attorney, but the filing fee could be waived:

JUDGE: [B]ut if you’re truly impecunious, Mr. [Barnard] ought to be handling this matter without [attorney fees].

KELSEY: That’s what I thought. Sometimes you don’t get that consideration.²

When means have been provided for indigent parties to obtain competent legal assistance without incurring legal fees,³ and thereby to obtain waiver of filing fees, I find it unconscionable that an attorney, instead of referring the indigent to “free” legal services, would “partially” take the case, charge a legal fee, and then send the client on her way with the complaint⁴ and an affidavit of impecuniosity to seek waiver of the filing fee.⁵

Judges have a duty to see that laws are administered as intended by the legislature. The Utah Legislature has mandated that a filing fee “shall be paid” for filing civil complaints. Utah Code Ann. § 78-3-16.5 (Supp.1991). However, where an impecunious affidavit is filed, the judge is to question the person about his or her ability to pay and “in the event that the judge is of the opinion that such person is reasonably able to pay costs he shall direct that judgment or decree be not entered in favor of that person until the costs are paid.” Utah Code Ann. § 21-7-4 (Supp.1991).

Judge Hanson complied with the above. He questioned Ms. Kelsey and, upon learning that she had retained Mr. Barnard and paid him attorney fees of “approximately” $100, reached “the opinion” that if Ms. Kelsey could afford to pay Mr. Barnard, she could afford to pay the filing fee.

The actions of Judge Hanson were justified. I don’t believe the legislature ever intended that filing fees should be waived where a party has retained a private attorney and has paid legal fees to that attorney.

The overwhelming majority of people seeking divorce are struggling financially as they attempt to support two households on the same amount of money with which they previously supported one. Most could file similar affidavits. If only a portion of the 7,000 divorces filed each year in Salt Lake County successfully sought a waiver of filing fees, the cost to the taxpayers could be hundreds of thousands of dollars annually.

Unfortunately, Ms. Kelsey is caught in the middle.⁶ Although I am sympathetic to her plight, I cannot condone the practice of court costs “taking a back seat” to attorney fees. Here, the principle involved is crucial. Therefore, this court should stand by the decision of Judge Hanson and deny the petition for a writ of mandamus.

1 . Legal Aid Society of Salt Lake provides indigent representation to the Salt Lake County community. Other similar organizations provide legal services to indigents in other cities and counties in the State.

2 . Ms. Kelsey testified that she never actually dealt with Mr. Barnard, but with a member of his staff, Valerie Gylling. The Utah State Bar Directory does not list Valerie Gylling. Utah Code Ann. § 78-51-25 (1987) prohibits any person who is not a member of the bar and licensed to practice law from practicing law or holding himself or herself out as an attorney.

3 . These means are provided by Legal Aid Society which, in conjunction with the Salt Lake County Bar pro bono program, provides local attorneys, who donate their time free of charge, to serve indigent clients.

4 . The complaint did not even seek an award of attorney fees that would enable Ms. Kelsey to recover from the defendant the $100 that she paid to Mr. Barnard.

5 . Moreover, if Ms. Kelsey’s immediate protection had been at issue, the proper action would be to advise her to obtain an immediate protective order from the district court, pursuant to the Cohabitant Abuse Act, Utah Code Ann. § 30-6-1 to -11 (Supp.1991), which does not require the assistance of legal counsel nor the payment of fees. Utah Code Ann. § 30-6-4 (Supp.1991).

6 . If, on the other hand, Mr. Barnard were to return the $100 to Ms. Kelsey, there would be nothing to prevent Judge Hanson from waiving the filing fee.