§23.2 RIGHT TO REVIEW AT PUBLIC EXPENSE
Title 15 RAP recognizes certain cases in which a party, after making a proper showing of indigency, is automatically entitled to review at public expense. These include any case in which a party has a constitutional or statutory right to counsel at all stages of the proceeding, such as a criminal case, parental termination case, or civil commitment proceeding. RAP 15.2(b)(1). When such a right exists, the trial court "shall grant the motion" for expenditure of public funds and designate the particular items to be funded. Id.
When there is no statutory or constitutional right to counsel, a party may seek review at public expense, but the order of indigency must be approved by the Supreme Court. RAP 15.2(c). The Supreme Court will only grant review at public expense in such a case if it determines that the party is seeking review in good faith, that an issue of probable merit is presented, and that a "miscarriage of justice" has occurred. In re Grove, 127 Wn.2d 221, 241, 897 P.2d 1252 (1995) (en banc); see RAP 15.2(d). Supreme Court approval of an order of indigency when there is no right to counsel is likely to be rare.
| Practice Tip: | When RAP Title 15 or case law does not yet recognize a right to review at public expense, RAP 15.2 requires a cumbersome time-consuming process of Supreme Court review of the order of indigency. The Supreme Court rarely approves the expenditure of public funds in such cases. |
RAP 15.2 is based on the court's decision in In re Grove, 127 Wn.2d 221. In three consolidated cases, the court found a right to review at public expense of (1) the disposition following an order of dependency and (2) a motion for discretionary review of an interlocutory order in a sexually violent predator proceeding. However, the court found no right to review at public expense of (3) the denial of worker compensation benefits. Grove established the principle that when the constitution or a statute provides for the right to counsel at all stages of a proceeding, an indigent party is entitled to review at public expense.
An indigent party's right to review of a trial court decision at public expense is a question of constitutional and statutory dimensions. This is a fluid area of the law, and counsel should be alert to the possibility of a right to review at public expense under fact patterns not previously addressed in appellate cases.
Title 15 RAP applies only to proceedings in the Washington appellate courts. It does not apply to the preparation and filing of a petition for certiorari in the United States Supreme Court. As there is no federal constitutional right to assistance of counsel in filing a petition for certiorari, the U.S. Supreme Court consistently denies requests for such assistance. Ross v. Moffitt, 417 U.S. 600, 617, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974).
The following sections describe representative cases involving the right to review at public expense in a variety of proceedings.
(1) Criminal prosecutions and juvenile offense proceedings
RAP 15.2(b)(1)(a) provides a right of review at public expense in "criminal prosecutions or juvenile offense proceedings." Indigent criminal defendants have a constitutional right to obtain appellate review as adequate as the appellate review available to defendants who can afford to pay the costs of perfecting their appeals. State v. Harvey, 179 Wn.2d 919, 288 P.3d 1111 (2012); State v. Rutherford, 63 Wn.2d 949, 389 P.2d 895 (1964).
The sources of this right have been variously identified as the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution and the criminal defendant's right to appeal guaranteed by the Washington Constitution. U.S. Const. amend. XIV; Wash. Const. art. I, §22, & amend. 10; see Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811, reh'g denied, 373 U.S. 905 (1963); Eskridge v. Wash. State Bd. of Prison Terms & Paroles, 357 U.S. 214, 78 S. Ct. 1061, 2 L. Ed. 2d 1269 (1958). The Sixth Amendment guarantee of counsel in criminal prosecutions provides further constitutional support for this right. U.S. Const. amend. VI; cf. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). The same right to counsel extends to juvenile offense...
