State Of Washington, V. Anthony Dewayne Parker

Filed
Washington State
Court of Appeals
Division Two
December 14, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54685-0-II
Respondent,
v.
UNPUBLISHED OPINION
ANTHONY DEWAYNE PARKER,
Appellant.
PRICE, J. — Anthony Parker appeals the trial court order requiring him to obtain permission
before filing additional motions. Parker argues that the order violates his constitutional right to
access the courts and that he had a statutory and due process right to be represented by counsel at
the hearing. We remand for reconsideration under the appropriate standard and hold that Parker
is entitled to counsel.
FACTS
Anthony Parker is serving a 601 month sentence for convictions of multiple crimes. Parker
has appealed and filed numerous collateral attacks against his judgment and sentence including
five separate CrR 7.8 motions in January 2020.1
1
On appeal, the State also presented evidence of additional collateral attacks Parker has filed since
the trial court entered the order. However, because evidence of additional collateral attacks was
not before the trial court and are not necessary “to fairly resolve the issues on review,” we do not
consider them. RAP 9.11(a).
No. 54685-0-II
On January 23, 2020, the State filed a motion asking the trial court to enter an order barring
Parker from filing additional motions in any court in Washington without prior permission from
the clerk of our Supreme Court. A hearing on the motion for the order was held at which the State
argued that Parker’s filings were frivolous and placed an unnecessary strain on its resources.
Parker argued that his filings were not frivolous. Parker also asked whether he had counsel for the
hearing, to which the trial court replied, “No.” Verbatim Report of Proceedings (RP) (Feb. 28,
2020) at 6-7.
The trial court granted the State’s motion requesting that Parker be required to obtain
permission prior to filing collateral attacks. The trial court entered a written order stating:
Ordered that no court in this state shall accept for filing from Anthony Parker any
personal restraint petitions, habeas corpus actions, CrR 7.8 motions, or other
collateral attacks as that term is defined in RCW 10.73.090(2), seeking relief from
his judgment in the instant matter unless Parker first demonstrates that he has
obtained permission from the Clerk of the Supreme Court, Honorable Susan L.
Carlson, or from a Commissioner for that Court for the filing of said petition or
other action to assure that said petition or other action is not frivolous or repetitive.
Clerk’s Papers (CP) at 297-98 (boldface omitted). The trial court did not make any findings of
fact or conclusions of law to support its order either in its oral ruling from the bench or in its written
order.
After entering the order, the trial court refused to accept Parker’s filings. Parker sent a
letter to the Supreme Court clerk requesting permission to have his motions considered. In
response, the clerk sent a letter to the parties and the trial court stating that she was not consulted
prior to the filing of the order and informing them that she would not be performing the obligations
the order purported to place on her.
Parker appeals the trial court’s order.
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ANALYSIS
I. ORDER
A. LEGAL PRINCIPLES
We review a trial court order limiting an individual’s access to the court for an abuse of
discretion. Bay v. Jensen, 147 Wn. App. 641, 657, 196 P.3d 753 (2008).
There is a due process constitutional right of access to the courts for incarcerated
individuals. Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977), abrogated
on other grounds by Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174 (1996); Whitney v. Buckner,
107 Wn.2d 861, 865, 734 P.2d 485 (1987). However, this right is not absolute and may be limited
with reasonable restrictions. In re Marriage of Giordano, 57 Wn. App. 74, 77, 787 P.2d 51 (1990).
“Every court of justice has power . . . [to] provide for the orderly conduct of proceedings before
it.” RCW 2.28.010(3). Courts are authorized to “control the conduct of litigants who impede the
orderly conduct of proceedings.” Yurtis v. Phipps, 143 Wn. App. 680, 693, 181 P.3d 849 (2008).
“[A] court may, in its discretion, place reasonable restrictions on any litigant who abuses the
judicial process.” Id.Trial courts may enjoin a party from litigation if there is a “ ‘specific and detailed showing
of a pattern of abusive and frivolous litigation.’ ” Id. (quoting Whatcom County v. Kane, 31 Wn.
App. 250, 253, 640 P.2d 1075 (1981)). “Proof of mere litigiousness is insufficient to warrant
limiting a party’s access to the court.” Bay, 147 Wn. App. at 657. When a trial court issues an
injunction it “ ‘must be careful not to issue a more comprehensive injunction than is necessary to
remedy proven abuses, and if appropriate the court should consider less drastic remedies.’ ” Yurtis,
143 Wn. App. at 693 (quoting Whatcom County, 31 Wn. App. at 253).
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No. 54685-0-II
B. APPLICATION
Here, the trial court failed to apply the proper standard to the State’s motion. The State
failed to articulate the appropriate standard of a “ ‘specific and detailed showing of a pattern of
abusive and frivolous litigation’ ” in its motion to the trial court, and the trial court’s order does
not demonstrate that it applied this standard when it entered the order. Yurtis, 143 Wn. App. at
693 (quoting Whatcom County, 31 Wn. App. at 253). Thus, we remand to the trial court for
reconsideration to permit the trial court to apply the correct standard and to ensure that any order
is consistent with its authority.
II. RIGHT TO COUNSEL
A. STATUTORY RIGHT TO COUNSEL
Parker argues that he had a statutory right to counsel at the public expense at the hearing
on the order under RCW 10.73.150. We disagree.
Questions of statutory interpretation and application are reviewed de novo. State v. Dennis,
191 Wn.2d 169, 172, 421 P.3d 944 (2018). Our goal in statutory interpretation issues is to
“ascertain and carry out the legislature’s intent.” Jametsky v. Olsen, 179 Wn.2d 756, 762,
317 P.3d 1003 (2014). Where a statute is unambiguous, we interpret a statute according to its plain
meaning without reference to outside sources. Id.Washington law provides that indigent individuals must be provided counsel at the public’s
expense where the individual “[r]esponds to a collateral attack filed by the state.” RCW
10.73.150(5).
Here, the State requested that the trial court enter an order against Parker to prevent him
from filing motions in his criminal case unless he first receives permission. Although there is no
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No. 54685-0-II
statutory definition for what constitutes a collateral attack under RCW 10.73.150, we find that this
was not a collateral attack by the State. The State’s request did not affect Parker’s judgment or
sentence, but was merely adding a procedural step to prevent frivolous filings. Because the State’s
motion was not a collateral attack and no other statutory basis has been raised, Parker did not have
a statutory right to counsel under RCW 10.73.150(5).
B. DUE PROCESS RIGHT TO COUNSEL
Parker also argues that he has a due process right to counsel when the State is attempting
to restrict his right of access to the courts under these circumstances. We agree.
On appeal, the question of whether an individual was constitutionally entitled to counsel
under due process is reviewed de novo, but we defer to a trial court’s findings of fact where
appropriate. In re Dependency of E.H., 191 Wn.2d 872, 895, 427 P.3d 587 (2018).
Where an individual does not have a statutory right to counsel, they may still have a due
process right to counsel under the federal and state constitutions. U.S. CONST. amend. XIV; WASH.
CONST. art. 1, § 22; State v. Stone, 165 Wn. App. 796, 810-11, 268 P.3d 226 (2012).
“ ‘[F]undamental fairness—the touchstone of due process’—may require appointment of counsel
at public expense in certain cases.” Id. at 812 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790,
93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)).
We apply the Mathews v. Eldridge2 factors on a case-by-case basis to determine whether a
due process right to counsel applies. In re Dependency of E.H., 191 Wn.2d at 894. We consider:
“(1) the nature of ‘the private interest that will be affected,’ (2) the comparative ‘risk’ of an
‘erroneous deprivation’ of that interest with and without ‘additional or substitute procedural
2
424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
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No. 54685-0-II
safeguards,’ and (3) the nature and magnitude of any countervailing interest in not providing
‘additional or substitute procedural requirement[s].’” Turner v. Rogers, 564 U.S. 431, 444-45, 131
S. Ct. 2507, 180 L. Ed. 2d 452 (2011) (alteration in original) (quoting Mathews v. Eldridge,
424 U.S. at 335).
Relevant factors in determining whether due process requires an indigent individual to be
provided counsel at public expense are whether the opposing party is represented by counsel and
whether procedural safeguards are in place ensuring that the individual has notice and a “fair
opportunity to present, and to dispute, relevant information, and express court findings.” Turner,
564 U.S. at 448. Where the State is represented by an attorney at a proceeding but a defendant is
not, concerns arise of an “ ‘asymmetry of representation.’ ” Stone, 165 Wn. App. at 814 (quoting
Turner, 564 U.S. at 447). Additionally, where a proceeding requires an individual to present
complex issues, it is more likely that there is a due process right to counsel. Gagnon, 411 U.S. at
786-87.
First, the private interest involved here is Parker’s right of access to the courts. This interest
was affected when the trial court required prior approval before Parker could file pleadings with
any state court. Although Parker was not at risk of being deprived of his personal liberty because
he had already been convicted of a crime and imprisoned, a right of access to the courts for an
incarcerated individual is still of fundamental importance. Moreover, court filings by incarcerated
individuals related to the case for which they are incarcerated could affect their personal liberty
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No. 54685-0-II
through the potential for release.3 In these specific circumstances, this factor weighs in favor of a
due process right to counsel because the State is seeking to limit an important private interest.
Second, there was risk of Parker being erroneously deprived of his constitutional right to
access the courts. Had Parker originally been provided counsel below, counsel could have brought
to the trial court’s attention the appropriate standard to apply to the State’s request. Whether a
more accurate decision would have been made had counsel been provided is a relevant
consideration under the second factor. In re Dependency of E.H., 191 Wn.2d at 895-96.
In addition, if Parker is unrepresented, there is an asymmetry of representation. Here, the
State, represented by an attorney, requested the trial court limit an unrepresented individual’s right
of access to the courts. Although Parker was in a position to explain the legal bases for his many
underlying motions because he brought them himself, the State’s motion focused on the volume
and manner in which the filings were made, characterizing them as frivolous. Adequately
addressing these questions may require legal experience in appellate rules and customs, causing
an imbalance in the proceedings when one side is unrepresented.
Further, this risk of erroneous deprivation may be lessened by additional procedural
safeguards. While some safeguards may be provided by Parker’s ability to appeal, this specific
order illustrates well the risk of these types of motions. For example, this order purports to limit
Parker’s access to the appellate courts. Additionally, the order’s assignment of a gatekeeper
function to the Supreme Court clerk is a solid barrier to access when the clerk is understandably
unwilling to fulfill these assigned duties. It may be unlikely that future orders limiting court access
3
We take no position on whether this factor would be applied differently if Parker was not
incarcerated or if the State’s motion did not affect the case for which he was incarcerated.
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No. 54685-0-II
for incarcerated individuals will have these exact provisions, but their presence in this order
demonstrates the inherent risk to this important right without more safeguards than existed for
Parker.
Third, as for the nature and magnitude of the countervailing interests, the government has
an interest in expediently resolving issues regarding frivolous litigation and not spending any
additional resources on individuals who may have already expended resources unnecessarily. See
In re Dependency of A.E.T.H., 9 Wn. App. 2d 502, 527-28, 446 P.3d 667 (2019). However, had
counsel been appointed for Parker below, the trial court may have been advised of the appropriate
standard of review to apply, saving the expenditure of additional resources now required. In
addition to preventing frivolous filings, the State also has an interest in ensuring accurate decisions.
See Id. at 528.
In applying the three Mathews factors to this specific order, we conclude that Parker has a
due process right to counsel for the State’s motion. The private right of access to the courts is
significant. There is a risk of erroneous deprivation for which there are inadequate safeguards,
and the government’s countervailing interest, on balance, is not significant enough to outweigh
the other factors.
By providing counsel at public expense to Parker, we are not greatly expanding the right
to counsel. Our conclusion is narrowly limited to Parker in this case as an incarcerated defendant
responding to the State’s request to limit his right of access to the courts to file pleadings in the
matter for which he is incarcerated.
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No. 54685-0-II
III. STATEMENT OF ADDITIONAL GROUNDS (SAG)
Parker raises additional issues in a SAG. He claims that the State used fabricated evidence
to deprive him of a fair reference hearing and the State violated Brady when the State failed to
submit material when requested. Neither of these matters were before the trial court for the order
on appeal. Therefore, they may not be appealed. RAP 2.2.
CONCLUSION
We remand to the trial court to reconsider the motion under the correct standard and tailor
any order to be consistent with its authority. We also order that Parker be appointed counsel on
remand.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
PRICE, J.
We concur:
CRUSER, P.J.
VELJACIC, J.
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