Voth v. Snake River Correctional Institution, 171 Or.App. 392, 15 P.3d 629 (Or.App. 12/13/2000)

[1] Oregon Court of Appeals


[2] No. CA A109413


[3] 171 Or.App. 392, 15 P.3d 629, 2000


[4] December 13, 2000


[5] FRANK E. VOTH,
APPELLANT,
V.
SNAKE RIVER CORRECTIONAL INSTITUTION,
RESPONDENT.


[6] M99-11-051C Appeal from Circuit Court, Malheur County. F. J. Yraguen, Judge.


[7] Frank E. Voth filed the brief pro se for appellant. Brendan C. Dunn, Assistant Attorney General, waived appearance for respondent.


[8] Before De Muniz, Presiding Judge, and Haselton and Wollheim, Judges.


[9] The opinion of the court was delivered by: Haselton, J.


[10] Submitted on record and brief October 6, 2000.


[11] Order denying motion to waive or defer fees vacated; remanded for court to decide motion to disqualify before considering motion to waive or defer fees.


[12] Plaintiff appeals from the trial court's order denying his motion for a waiver or deferral of fees in this civil action. See Stanwood v. Multnomah County, 135 Or App 58, 898 P2d 196 (1995).*fn1 He assigns error to the trial judge's failure to rule on a concurrently tendered motion to disqualify the trial judge. Plaintiff asserts, particularly, that it was error for the trial court to rule on the motion to waive or defer fees without first--or, indeed, ever--acting on the motion to disqualify. We vacate the court's denial of the motion to waive or defer fees and remand for the trial court to determine the motion to disqualify.


[13] On or about November 10, 1999, plaintiff, an inmate in the Snake River Correctional Institution, tendered to the clerk of the Malheur County Circuit Court a complaint for "statutory negligence and negligence per se," against the defendant correctional institution. That complaint alleged that defendant had unlawfully impaired plaintiff's access to prison legal resources and sought damages for that alleged interference. With that complaint, plaintiff tendered a motion to disqualify Judge Frank Yraguen, an affidavit in support of that disqualification motion, a "Motion for Leave to Proceed In Forma Pauperis,"*fn2 and an affidavit of indigency. Plaintiff did not tender a filing fee with his complaint.


[14] The clerk's office of Malheur County Circuit Court did not file the complaint because plaintiff had not tendered a filing fee. Instead, consistent with the circuit court's local practice, the clerk's office, "for reference purposes," placed plaintiff's pleadings in a file with the case designation "M99-11-051C." See Curtis v. Lampert, ___ Or App ___, ___ P3d ___ (decided this date) (describing Malheur County Circuit Court practice for processing inmate complaints tendered without filing fee but with motion to waive or defer fees).


[15] On November 10, 1999, Judge Yraguen, without elaboration, denied plaintiff's motion for waiver or deferral of fees. The trial court administrator subsequently informed plaintiff that, given that denial, "you will need to pay the $167.00 filing fee before the complaint can be filed." Neither Judge Yraguen nor any other judge ever acted on plaintiff's motion to disqualify Judge Yraguen.


[16] On December 8, 1999, plaintiff petitioned the Supreme Court for an alternative writ of mandamus, challenging the circuit court's failure to act on his motion to disqualify Judge Yraguen before ruling on his motion for waiver or deferral of fees. While that mandamus proceeding*fn3 was pending, on February 1, 2000, Judge Yraguen sua sponte issued an extensive "Order Vacating Previous Orders Denying Waiver of Filing Fees/Renewed Orders Upon Reconsideration Denying Waiver of Filing Fees."*fn4 The essence of that February 1 order, which is described in greater detail below, is that it was unnecessary for the court to act on the motion to disqualify because plaintiff had never "appeared" before the court for purposes of the judicial disqualification statutes, ORS 14.210 et seq., in that plaintiff's complaint had never been filed. Alternatively, the order posits that the determination of a motion for waiver or deferral of fees is purely "ministerial" and, thus, the pendency of the motion to disqualify did not preclude the trial court from disposing of the motion to waive or defer fees. See, e.g., Creel v. Shadley, 266 Or 494, 497, 513 P2d 755 (1973) ("As a general rule, when a judge has been disqualified, he is without authority to act further in any judicial capacity in the case, but he is not prevented from performing formal or ministerial acts.").


[17] On February 16, 2000, the Supreme Court denied plaintiff's petition for writ of mandamus, concluding that plaintiff had a plain, adequate, and speedy legal remedy:


[18] "(1) [R]elator may appeal from the order denying his motion for leave to proceed in forma pauperis, (2) on such appeal, relator may raise the issue of the trial judge's failure to act on the motion to disqualify, and (3) such an appeal is a plain, adequate and speedy remedy."*fn5


[19] Plaintiff then filed this appeal.


[20] On appeal, plaintiff argues that the trial judge erred in denying plaintiff's motion to waive or defer fees without first--or, indeed, ever--acting on plaintiff's motion to disqualify the same judge. Before addressing the merits of that argument, we revisit the February 1 order, which describes the trial court's rationale.


[21] That order first explains the court's reasoning for denying the motion to waive or defer fees. In particular: (1) The court judicially noticed other lawsuits that plaintiff had initiated and observed that plaintiff "has had and obviously continues to have access to the law library at the Snake River Correctional Institution." (2) Alternative mechanisms existed to remedy the alleged deprivation of access to legal resources, including instituting a habeas corpus proceeding and, with respect to plaintiff's appeals, seeking time extensions from the Oregon Court of Appeals. (3) The court had discretion to decline to waive or defer filing fees "so long as the exercise of such discretion is not arbitrary or capricious." And (4), the court declined to waive fees because, under the totality of the circumstances, "Petitioner need not be accorded the right to, in addition, file civil actions for damages against the State of Oregon without paying the requisite filing fees."


[22] The court then noted that, under the prevailing practice in Malheur County Circuit Court, when a complaint was tendered without a filing fee, a "new case" would not be "initiated" unless the court allowed a motion for waiver or deferral of fees. Given that practice, the court reasoned that, in those cases where the motion to waive or defer fees was denied, precluding the filing of the complaint, the plaintiff had not "appear[ed]" before the court for purposes of the disqualification statutes. See ORS 14.260(1). Consequently, the protections of those statutes could not be invoked:


[23] "'Appearing,' as the term is used in ORS 14.260(1), does not appear to have been interpreted by Oregon's Appellate Courts. 'Appearance' in Black's Law Dictionary, Seventh Edition, means 'a coming into court as a party or interested person.'


[24] "* * * * *


[25] "This Court views the term 'appearing' in ORS 14.260(1) as involving more than merely tendering to the court documents which may, depending upon the allowance of a waiver or deferral of filing fees, result in a filed case."


[26] Finally, and alternatively, the court noted that disqualification does not preclude judicial action on purely ministerial matters and that, in the court's view:


[27] "This Court further views the initial actions involving the processing of the initial paperwork associated with an attempted filing as being formal or ministerial acts which are allowed under Oregon law even if a motion for recusal is among the submitted materials."


[28] We turn to the merits. For clarity, we first address--and reject--the trial court's alternative rationale. As the court observed, disqualification does not preclude actions on purely ministerial matters. See, e.g., Creel v. Shadley. However, the disposition of a motion for waiver or deferral of fees under ORS 21.605(1)(a) is not ministerial. Rather, the allowance or denial of such a motion involves the exercise of judicial discretion and is reviewed for abuse of discretion. See Curtis, ___ Or App at ___ (slip op at 3-4); Stanwood, 135 Or App at 61. Indeed, the trial court's February 1 order in this case explicitly refers to the court's discretion in such matters and then proceeds to exercise that discretion based on a variety of factors, including factual assessment of whether plaintiff had been or was being denied meaningful access to legal resources and the availability of alternative remedies. See ___ Or App at ___ (slip op at 6). Regardless of the propriety of the trial court's assessment of such considerations, but see Curtis (in exercising discretion under ORS 21.605(1), court is limited to considering a plaintiff's ability to pay fees without reference to the substance of the plaintiff's complaint or availability of alternative causes of action), the disposition of plaintiff's application involved the exercise of judicial discretion. Consequently, the "ministerial acts" exception is inapposite.


[29] The question thus narrows to whether the trial court was correct that the judicial disqualification statutes, ORS 14.210, et seq., do not apply here because plaintiff had never "appear[ed]" because his complaint was never accepted for filing. We reject that analysis. ORS 14.250 provides, in part:


[30] "No judge of a circuit court shall sit to hear or try any suit, action, matter or proceeding when it is established, as provided in ORS 14.250 to 14.270, that any party or attorney believes that such party or attorney cannot have a fair and impartial trial or hearing before such judge."


[31] ORS 14.260 prescribes the process for seeking disqualification:


[32] "(1) Any party to or any attorney appearing in any cause, matter or proceeding in a circuit court may establish the belief described in ORS 14.250 by motion supported by affidavit that such party or attorney believes that such party or attorney cannot have a fair and impartial trial or hearing before such judge, and that it is made in good faith and not for the purpose of delay. No specific grounds for the belief need be alleged. Such motion shall be allowed unless the judge moved against, or the presiding judge for the judicial district, challenges the good faith of the affiant and sets forth the basis of such challenge. In the event of such challenge, a hearing shall be held before a disinterested judge. The burden of proof shall be on the challenging judge to establish that the motion was made in bad faith or for the purposes of delay.


[33] "(2) The affidavit shall be filed with such motion at any time prior to final determination of such cause, matter or proceedings in uncontested cases, and in contested cases before or within five days after such cause, matter or proceeding is at issue upon a question of fact or within 10 days after the assignment, appointment and qualification or election and assumption of office of another judge to preside over such cause, matter or proceeding.


[34] "(3) No motion to disqualify a judge shall be made after the judge has ruled upon any petition, demurrer or motion other than a motion to extend time in the cause, matter or proceeding. * * *"*fn6


[35] Disqualification under ORS 14.250 applies broadly to a judge's authority "to hear or try any suit, action, matter or proceeding." Although the statute does not define those terms, under any reasonable understanding, a motion to waive fees is, at the least, a legal "matter." See Webster's Third New Int'l Dictionary, 1394 (unabridged ed 1993) (defining "matter" as "something that is the subject of disagreement, strife or litigation" and as "something that is to be proved (as in a Court of Law)"). Indeed, as we emphasized in Stanwood, such a motion is potentially--and often actually--dispositive:


[36] "In this instance, the order denying the fee waiver 'closed the courthouse door' and significantly curtailed an indigent plaintiff's right to seek redress in court. See Or Const, Art. I, § 10 ('[E]very man shall have remedy by due course of law for injury done him in his person, property, or reputation.'). Without the fee waiver, plaintiff is unable to pursue his claim in court. Additionally, the order prevents the trial court from considering the merits of plaintiff's claim and from rendering a judgment." 135 Or App at 60.


[37] The trial court concluded, nevertheless, that plaintiff could not invoke the protections of the judicial disqualification statutes because he had not "appear[ed] in [a] cause, matter or proceeding in a circuit court." ORS 14.260(1). That is, the trial court bypassed the encompassing language of ORS 14.250 to focus, instead, on ORS 14.260, which prescribes the process for seeking recusal. Even more particularly, the court construed "appearing" in ORS 14.260(1) "as involving more than merely tendering to the court documents which may, depending upon the allowance of a waiver or deferral of filing fees, result in a filed case."


[38] The trial court's reading of "appearing" in this context is unduly restrictive. The disqualification statutes do not define "appearing"; nor has any published decision construed that term in this context. Nevertheless, the plain meaning of "appear" or "appearance" is "to come formally before an authoritative body" or "the coming into court of either of the parties to a suit." Webster's Third New Int'l Dictionary at 103.


[39] That construction is contextually corroborated by the breadth of ORS 14.250, including its use of the generic "matter." Read in tandem, ORS 14.250 and ORS 14.260 express the legislative intent that whenever a party submits a matter to a trial court for a decision, that party has "appear[ed]" for purposes of being able to invoke the judicial disqualification statutes. Conversely, a contrary construction would subvert that legislative intent by permitting a judge to rule on a potentially dispositive motion notwithstanding a party's good faith belief that the judge cannot be fair and impartial. ORS 14.250 and ORS 14.260 are not so constricted.


[40] We thus conclude that the trial court was obligated to decide plaintiff's motion to disqualify before considering plaintiff's motion to waive or defer fees. The trial court erred in failing to proceed in that fashion. Consequently, we vacate the court's order denying plaintiff's motion to waive or defer fees and remand for the trial court to determine plaintiff's motion to disqualify before considering plaintiff's motion to waive or defer fees.


[41] Order denying motion to waive or defer fees vacated; remanded for court to decide motion to disqualify before considering motion to waive or defer fees.



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Opinion Footnotes

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[42] *fn1 In Stanwood, we concluded that an order denying a motion for a waiver or deferral of fees pursuant to ORS 21.065(1)(a) is appealable under former ORS 19.010(2)(a) (1995), renumbered as ORS 19.205(2)(a) (1997) ("An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein.").


[43] *fn2 Plaintiff's "Motion for Leave to Proceed In Forma Pauperis" was on a preprinted form that refers to ORS 34.365, which pertains to the waiver of filing fees in habeas corpus proceedings. Because plaintiff's complaint here pleaded a civil action for damages, the applicable waiver provision is ORS 21.605(1)(a), which provides, in part: "[A] judge of a circuit or county court * * * may waive in whole or in part, defer in whole or in part, or both, all fees and court costs payable by a party to a particular civil action or proceeding in the court of the [judge], upon application by the party, if the [judge] finds that the party is unable to pay all or any part of the fees and costs. Waiver or deferral of inmate's fees and court costs is subject to ORS 30.642 to 30.650." See also ORS 30.643 (prescribing process for inmate to apply for waiver or deferral of fees).


[44] *fn3 Voth v. Malheur County Circuit Court (SC S46983).


[45] *fn4 That order refers to plural "orders" and "waivers" because it addressed not only the denial of the motion to waive or defer fees in this case, but also similar denials in other actions that plaintiff had tendered that are not at issue in this appeal.


[46] *fn5 The court concurrently denied defendant's motion to dismiss the mandamus proceeding as having been mooted by the trial court's intervening issuance of its February 1 order: "Relator's petition challenges the trial judge's failure to grant a motion to disqualify the trial judge, and the trial judge has not acted on that motion, and, therefore, that matter is not moot."


[47] *fn6 ORS 14.270 prescribes a distinct process for seeking disqualification of judges in judicial districts having a population of 100,000 or more. That statute is inapplicable here.

Curtis v. Lampert, 171 Or.App. 336, 15 P.3d 626 (Or.App. 12/13/2000)

[1] Oregon Court of Appeals


[2] No. CA A106848


[3] 171 Or.App. 336, 15 P.3d 626, 2000.OR


[4] December 13, 2000


[5] DAVID S. CURTIS,
APPELLANT,
V.
ROBERT LAMPERT, SUPERINTENDENT, SNAKE RIVER CORRECTIONAL INSTITUTION,
RESPONDENT.


[6] M9906051 Appeal from Circuit Court, Malheur County. F. J. Yraguen, Judge.


[7] David S. Curtis filed the briefs pro se for appellant. Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.


[8] Before De Muniz, Presiding Judge, and Haselton and Wollheim, Judges.


[9] The opinion of the court was delivered by: DE Muniz, P. J.


[10] Submitted on record and briefs April 7, 2000.


[11] Reversed and remanded.


[12] Plaintiff seeks review of an order denying his motion to proceed in forma pauperis in a civil action. We review the trial court's decision for abuse of discretion, Stanwood v. Multnomah County, 135 Or App 58, 898 P2d 196 (1995), and reverse.


[13] A preliminary question presented in this case is whether there exists a trial court record sufficient to allow appellate review of the issue presented. The trial court record, as forwarded by the trial court to this court, consists solely of a copy of plaintiff's notice of appeal filed on June 23, 1999 in the trial court, to which is attached a copy of plaintiff's motion to proceed in forma pauperis, with a notation by the trial judge stating: "Denied. So ordered. Claim can be more properly addressed through habeas corpus proceeding rather than the attempted civil action for damages." The motion is dated June 1, 1999. The trial judge's notation denying the motion is dated June 4, 1999 and was filed by the trial court clerk on that date. Also attached to the copy of the notice of appeal contained in the trial court record is a copy of the complaint that plaintiff tendered at the time he filed his motion to proceed in forma pauperis. The trial court record contains no documentation of plaintiff's initial attempt to file his complaint and proceed in forma pauperis. In particular, although plaintiff's motion states that it is "supported by the Affidavit of Indigency filed in this Court indicating that plaintiff is without funds or assets with which to pay the Court fees," no copy of that affidavit of indigency was included in the trial court record.


[14] Defendant, in his response brief, does not address the merits of the trial court's ruling. Rather, he asserts only that plaintiff's claim must fail because "this record does not contain any affidavit that plaintiff may have filed in support of his motion in the circuit court for waiver of the filing fee." In reply, plaintiff has submitted a copy of an affidavit of indigency dated and notarized on June 1, 1999, as well as correspondence from the trial court judge that demonstrates beyond reasonable dispute that the trial court did, in fact, receive plaintiff's accompanying affidavit with his motion to proceed in forma pauperis. We treat plaintiff's reply brief accompanied by the materials documenting these events as a motion to correct the trial court's record and allow that motion.*fn1 See ORS 19.365(4) (appellate court may sua sponte order correction of record). We therefore reject defendant's argument that we should treat the absence of plaintiff's supporting affidavit from the trial court record as a reason for affirming the trial court's decision.


[15] We turn to the merits of plaintiff's claim. Plaintiff asserts that the trial court abused its discretion in denying his motion to proceed in forma pauperis. In support of his position, plaintiff relies on Burgess v. Holstedt, 156 Or App 436, 965 P2d 473 (1998), and Stanwood, 135 Or App at 60. In Stanwood, a federal prisoner sought to file a civil action in circuit court and filed a motion to proceed in forma pauperis that included a supporting affidavit attesting to his inability to pay the filing fee. We noted that a judge "'may waive in whole or in part, defer in whole or in part, or both, all fees and court costs payable by a party to a particular civil action * * * [if the] judge finds that party is then unable to pay all or any part of the fees and costs.'" Id. at 61, quoting ORS 21.605(1). We held that the trial court abused its discretion in denying the plaintiff's motion:


[16] "Based on the information contained in the affidavit accompanying plaintiff's motion, which is the only evidence in the record regarding plaintiff's ability to pay, it is apparent that he cannot pay the required filing fee. The record is devoid of evidence that would justify denial of plaintiff's fee waiver request. Absent any findings of facts or conclusion of law provided by the court to explain its decision, and in the light of the facts before us in the record, we conclude that the trial court abused its discretion in denying plaintiff's motion for a waiver or deferral of fees." Id.


[17] Similarly, in Burgess, a plaintiff sought deferral of filing fees and fees for service of process on the defendant. The court, without explanation, allowed the deferral of filing fees but denied the motion as to fees for service of process. The court later dismissed the case because no proper service of process had occurred. 156 Or App at 438. As in Stanwood, we indicated that it was apparent from the plaintiff's affidavit that he could not pay the service fees and that nothing in the record suggested otherwise. Id. at 439. Again, we noted that the trial court provided no explanation of its decision. Id. We concluded that "the denial of a waiver of deferral of service fees was an abuse of discretion[.]" Id.


[18] Plaintiff asserts that this case is essentially the same as Burgess and Stanwood. We agree. The only notable difference between the present case and those cases is that the trial court in this case did provide at least a cursory explanation of its decision to deny plaintiff's motion to proceed in forma pauperis. However, the trial court's explanation of its decision was that plaintiff's claim would be more properly addressed in a habeas corpus proceeding. In short, the court assessed the merits of plaintiff's complaint, which had not even been deemed filed with the court. In exercising its discretion as to whether a plaintiff should be permitted to proceed in forma pauperis, the trial court must consider the information relating to a party's ability to pay the fees in question. See Stanwood, 135 Or App at 61; Burgess, 156 Or App at 439. The court is not in a position to assess the merits of the action that the plaintiff is attempting to file because that action, until it is deemed filed, is not properly before the court.*fn2


[19] We therefore conclude that the trial court erred in denying plaintiff's petition to proceed in forma pauperis based on its assessment of the merits of the action that plaintiff sought to file rather than on the available information pertinent to plaintiff's ability to pay the filing fee.


[20] Reversed and remanded.



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Opinion Footnotes

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[21] *fn1 In a virtually identical case, Thompson v. Knox, A106610, we did the same. In an order supplementing the record, we stated: "This is an appeal from an order denying appellant's motion for leave to proceed in forma pauperis. Because the trial court denied the motion to waive the filing fee, the trial court did not create a regular case file and, in fact, returned the materials tendered for filing to appellant. When appellant filed his notice of appeal, he mailed those materials to the State Court Administrator with the intent that those materials be treated as the trial court record." We permitted the appellant in that case to supplement the trial court record with the documents that were tendered to the trial court and returned to him when the court rejected his motion to proceed in forma pauperis. Trial courts that deny motions to proceed in forma pauperis must ensure that all material submitted to the court by plaintiffs in support of, or accompanying, the motions are included with the order of denial as exhibits made part of the trial court's record. See generally ORS 7.110 (trial court shall maintain both "files" and "records" of trial court). ORS 21.110(4), which requires that a paper or pleading be "filed by the clerk" only after a fee has been paid or a waiver or deferral of fees has been granted, does not preclude such a practice because the accompanying documentation is not to be treated as a "paper or pleading" to be "filed," but simply as an attachment to an order of the court. Such a practice would obviate the need for this court to re-create the record in these cases.


[22] *fn2 After the action is filed, the court has the ability to look to the substance of the complaint. At that point, the court might, for example, determine that the action is a mislabeled action for habeas corpus relief. See Mueller v. Benning, 314 Or 615, 620, 841 P2d 640 (1992) (if circuit court has jurisdiction to decide a claim, it may do so regardless of whether it has been mislabeled).