Title 15 - Special Provisions Relating to Rights of Indigent Party
RAP 15.1: PROCEDURES TO WHICH TITLE APPLIES
The rules in this title define the procedure to be used (1) to determine indigency and to determine the expenses of an indigent party to review what will be paid from public funds as provided in rule 15.2, (2) to obtain a waiver of charges imposed by the court as provided in rule 15.3, (3) to claim payment from public funds for services rendered to an indigent party to review as provided in rule 15.4, (4) to allow claims for expense as provided in rule 15.5, and (5) to recover public funds expended on behalf of an indigent as provided in rule 15.6. The rules in this title apply to all proceedings in the appellate court, except the rules apply to personal restraint petitions only to the extent defined in rule 16.15(g) and (h).
[Amended September 1, 2010]
RAP 15.2: DETERMINATION OF INDIGENCY AND RIGHTS OF INDIGENT PARTY
(a) Motion for Order of Indigency. A party seeking review in the Court of Appeals or the Supreme Court partially or wholly at public expense must move in the trial court for an order of indigency. The party shall submit a Motion for Order of Indigency, in the form prescribed by the Office of Public Defense.
(b) Action by the Trial Court. The trial court shall determine the indigency, if any, of the party seeking review at public expense. The determination shall be made in written findings after a hearing, if circumstances warrant, or by reevaluating any order of indigency previously entered by the trial court. The court:
(1) shall grant the motion for an order of indigency if the party seeking public funds is unable by reason of poverty to pay for all or some of the expenses for appellate review of:
(A) criminal prosecutions or juvenile offense proceedings meeting the requirements of RCW 10.73.150,
(B) dependency and termination cases under RCW 13.34,
(C) commitment proceedings under chapters 71.05 and 71.09 RCW,
(D) civil contempt cases directing incarceration of the contemner,
(E) orders denying petitions for writ of habeas corpus under chapter 7.36 RCW, including attorneys' fees upon a showing of extraordinary circumstances, and
(F) any other case in which the party has a constitutional or statutory right to counsel at all stages of the proceedings; or
(2) shall deny the motion for an order of indigency if a party has adequate means to pay all of the expenses of review. The order denying the motion for an order of indigency shall contain findings designating the funds or source of funds available to the party to pay all of the expenses of review.
(c) Other Cases. In cases not governed by subsection (b) of this rule, the trial court shall determine in written findings the indigency, if any, of the party seeking review. The party must demonstrate in the motion or the supporting affidavit that the issues the party wants reviewed have probable merit, which will be determined by the Supreme Court pursuant to subsection (d) of this paragraph. The party must further demonstrate the party has a constitutional or statutory right to review partially or wholly at public expense, the right to which will also be determined by the Supreme Court pursuant to subsection (d) of this paragraph.
(1) Party Not Indigent. The trial court shall deny the motion if a party has adequate means to pay all of the expenses of review. The order denying the motion for an order of indigency shall contain findings designating the funds or source of funds available to the party to pay all of the expenses of review.
(2) Party Indigent. If the trial court finds the party seeking review is unable by reason of poverty to pay for all or some of the expenses of appellate review, the trial court shall enter such findings, which shall be forwarded to the Supreme Court for consideration, pursuant to section (d) of this rule. The trial court shall determine in those findings the portion of the records necessary for review and the amount, if any, the party is able to contribute toward the expense of review. The findings shall conclude with an order to the clerk of the trial court to promptly transmit to the Supreme Court, without charge to the moving party, the findings of indigency, the affidavit in support of the motion, and all other papers submitted in support of or in opposition to the motion. The trial court clerk shall promptly transmit to the Supreme Court the papers designated in the findings of indigency.
(d) Action by Supreme Court. If findings of indigency and other papers relating to the motion for an order of indigency are transmitted to the Supreme Court, the Supreme Court will determine whether an order of indigency in that case should be entered by the superior court. The determination will be made by a department of the Supreme Court on a regular motion day without oral argument and based only on the papers transmitted to the Supreme Court by the trial court clerk, unless the Supreme Court directs otherwise. If the Supreme Court determines that the party is seeking review in good faith, that an issue of probable merit is presented, and that the party is entitled to review partially or wholly at public expense, the Supreme Court will enter an order directing the trial court to enter an order of indigency. In all other cases, the Supreme Court will enter an order denying the party's motion for an order of indigency. The clerk of the appellate court will transmit a copy of the order to the clerk of the trial court and notify all parties of the decision of the Supreme Court.
(e) Order of Indigency. An order of indigency shall designate the items of expense which are to be paid with public funds and, where appropriate, the items of expense to be paid by a party or the amount which the party must contribute toward the expense of review. The order shall designate the extent to which public funds are to be used for payment of the expense of the record on review, limited to those parts of the record reasonably necessary to review issues argued in good faith. The order of indigency must be transmitted to the appellate court as a part of the record on review.
(f) Continued Indigency Presumed. A party and counsel for the party who has been granted an order of indigency must bring to the attention of the appellate court any significant improvement during review in the financial condition of the party. The appellate court will give a party the benefits of an order of indigency throughout the review unless the appellate court finds the party's financial condition has improved to the extent that the party is no longer indigent.
(g) Appointment and Withdrawal of Counsel in Appellate Court. The appellate court shall determine questions relating to the appointment and withdrawal of counsel for an indigent party on review. The Office of Public Defense shall, in accordance with its indigent appellate representation policies, provide the names of indigent appellate counsel to the appellate courts on a case-by-case basis. If trial counsel is not appointed, trial counsel must assist counsel appointed for review in preparing the record.
(h) Review of Order or Finding of Indigency. A party in a case of a type listed in section (b)(1) of this rule may seek review of an order of indigency or an order denying an order of indigency entered by a trial court. A party may also seek review of written findings under section (c)(1) of this rule that the party is not indigent. Review must be sought by a motion for discretionary review.
(i) Withdrawal of Counsel in Appellate Court. If counsel can find no basis for a good faith argument on review, counsel should file a motion in the appellate court to withdraw as counsel for the indigent as provided in rule 18.3(a).
Form 12, Order of Indegency, Rule 2.3, Decisions of the Trial Court Which May Be Reviewed by Discretionary Review.
[Adopted effective July 1, 1976; amended effective July 2, 1976; July 1, 1978; January 1, 1980; September 1, 1994; June 1, 1999; December 28, 1999; December 24, 2002; September 9, 2004; July 1, 2005; January 3, 2006; September 1, 2010; January 31, 2017; September 1, 2017.]
RAP 15.3: PAYMENT OF CHARGES FOR REPRODUCING BRIEFS
The appellate court will submit charges for reproducing briefs and other papers to the Office of Public Defense to the extent authorized by the order of indigency.
[Amended May 29, 2001.]
RAP 15.4: CLAIM FOR PAYMENT OF EXPENSE FOR INDIGENT PARTY
(a) Conditions for Payment. The expenses for an indigent party which are necessarily incident to review by an appellate court will be paid from public funds only if:
(1) An order of indigency is included in the record on review; and
(2) An order properly authorizes the expense claimed; and
(3) The claim is made by filing an invoice in the form and manner provided by this rule and procedures established by the Office of Public Defense. The invoice of a court reporter may be submitted as soon as the report of proceedings has been filed by the court reporter.
The invoice of a superior court clerk may be submitted as soon as the expense has been incurred. Invoices of counsel, court reporters, and superior court clerks must be filed within 20 days after the filing of the decision terminating review or 30 days after the denial of reconsideration, whichever is later.
(c) Invoice of Counsel. An invoice submitted by counsel representing an indigent party should be titled "Invoice of Counsel for Indigent Party." All invoices shall be submitted and certified in a form and manner consistent with policies adopted and published by the Office of Public Defense.
(1) The invoice must include a copy of the brief, a statement of the number of hours spent by counsel preparing the review, the amount of compensation claimed, and the reasonable expenses excluding normal overhead incurred by counsel for the review including travel expenses of counsel incurred for argument in the appellate court. Travel expenses may not exceed the amount allowable to state employees for travel by private vehicle. The invoice must include an affidavit of counsel stating that the items listed are correct charges for necessary services rendered and expenses incurred for proper consideration of the review.
(2) Providers who are under contract shall submit invoices in accordance with the terms of their contract.
(d) Invoice of Court Reporter or Typist.
(1) An invoice submitted by the court reporter should be titled "Invoice of Court Reporter or Typist--Indigent Case." The invoice must state the number of pages transcribed and the billing rate per page. The billing rate must be at the rate per page or line page equivalent set by the Supreme Court for the original and one copy of that portion of the report of proceedings ordered by the superior court. Additional copies which have been authorized and ordered from the reporter must be charged for as though reproduced by the most economical method available to the reporter.
(e) Invoice of Superior Court Clerk. An invoice submitted by the superior court clerk should be titled "Invoice of Superior Court Clerk--Indigent Case." The invoice must itemize the clerk's charges for the preparation of the record ordered by counsel for the indigent or the trial court and list the actual expenses of the clerk for transmittal of those portions of the record. The superior court clerk shall certify the clerk's invoice as follows:
I hereby certify that the items listed in this invoice are correct charges for the preparation of those portions of the record ordered by counsel or the trial court and for the actual expense of transmittal of those portions of the record.
[Originally effective July 1, 1976; amended effective September 1, 1984; September 21, 1990; September 1, 1994; June 6, 1996; May 29, 2001; November 25, 2003; December 8, 2015.]
RAP 15.5: ALLOWANCE OF CLAIM FOR PAYMENT OF EXPENSE FOR INDIGENT PARTY
(a) Allowance Generally. The director of the Office of Public Defense determines all claims for expense. The director will allow or disallow all or part of the claimed expense within 15 days, excluding weekends and legal holidays, after the invoice has been filed in the Office of Public Defense. The director will notify the claimant of the decision. A claimant may object to the decision of the director by letter to the Office of Public Defense Advisory Committee not later than 30 days after the director's decision and the Committee's decision is final.
(b) Disallowance of Claim. If a brief is unnecessarily long, improper in substance, or not in compliance with these rules, all or a portion of counsel's claim may be disallowed. If the court reporter or counsel has been dilatory, all or a portion of the claim of the court reporter or the claim of counsel may be disallowed.
[Amended June 6, 1996; May 29, 2001; September 1, 2010]
RAP 15.6: RECOVERY OF PUBLIC FUNDS
If a case on review is returned to the trial court for further proceedings and the case involves a claim for a money judgment for the party on whose behalf public funds have been expended, the Clerk of the Supreme Court will indicate the amount of public funds expended on behalf of the party in the mandate or in a supplemental judgment. The amount indicated in the mandate and supplemental judgment is a lien on any settlement or judgment obtained by the party on whose behalf public funds have been expended. This lien must be satisfied prior to the payment of any other amounts to the party. If a judgment is entered, the judgment should reflect the lien imposed by this rule. The amount of the lien must be paid to the clerk of the superior court. The clerk of the superior court shall forward all funds recovered to the director of the Office of Public Defense, who will credit these funds to the Indigent Appeal Allotment.
Rule 14.3, Expenses Allowed as Costs, (c) Special rule for indigent review.
Amended June 6, 1996