APPOINTMENT OF COUNSEL BY COURT IN HABEAS CORPUS APPEAL -- COSTS ON APPEAL NEED NOT BE PAID BY COUNTY

APPOINTMENT OF COUNSEL BY COURT IN HABEAS CORPUS APPEAL -- COSTS ON APPEAL NEED NOT BE PAID BY COUNTY

1. Superior Court has power to appoint counsel to assist an indigent appellant on appeal from habeas corpus proceeding, but counsel is not obliged to personally pay for any costs of appeal, and court need not appoint counsel as a matter of right.

2. County is not liable for attorneys' fees or other costs on appeal by indigent appellant in habeas corpus proceedings.

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                                                                   May 31, 1950

Honorable Ronald R. Hull
Prosecuting Attorney
Yakima County
County Court House
Yakima, Washington                                                                                                              Cite as:  AGO 49-51 No. 282

Attention:  !ttLincoln E. Shropshire
            Chief Deputy

Dear Sir:

            We have your letter of April 5, 1950, requesting an opinion from this office on the following questions:

            1. Does a Superior Court have the power to appoint counsel for an indigent petitioner on his appeal to the Supreme Court from a denial of his application for a writ of habeas corpus in such Superior Court?

            2. Is the county in which such court has jurisdiction liable for the payment of attorneys' fees when the court appoints such counsel?

            3. Is the county in which such court has jurisdiction liable for the payment of costs of the appeal?

            Our conclusions may be summarized as follows:

             [[Orig. Op. Page 2]]

            1. A Superior Court does have the power to appoint counsel to advise an indigent appellant and to assist him in the prosecution of his appeal, but such counsel cannot be required to perform any services the exercise of which must involve expenditure of counsel's money, and the court in no case of habeas corpus is obliged to appoint counsel as a matter of right.

            2. The county is not liable for the payment of attorneys' fees.

            3. The county is not liable for the payment of costs of the appeal.

                                                                     ANALYSIS

            The only statutory authority for public assistance to indigent applicants for writs of habeas corpus is contained in Chapter 256, Section 1, Laws of 1947 (1947 Rem. Supp. § 1085-1) which provides as follows:

            "Any person entitled to prosecute a writ of habeas corpus who, by reason of poverty is unable to pay the costs of such proceeding or give security therefor, may file in the Court having original jurisdiction of the proceeding an affidavit setting forth such facts and that he believe himself to be entitled to the redress sought.  Upon the filing of such an affidavit the Court may, if satisfied that the proceeding or appeal is instituted or taken in good faith, order that such proceeding, including appeal, may be prosecuted without prepayment of fees or costs or the giving of security therefor."

            It should be noted initially that the authority to order prosecution of habeas corpus proceedings without prepayment of fees or costs is restricted to the court having original jurisdiction of said proceedings.  Under Article 4, Section 4 of the State Constitution and Rem. Rev. Stat. § 1, the Supreme Court and each of the judges has power to issue writs of habeas corpus returnable before the Supreme Court or any judge thereof, or before any Superior Court of the state.

            Article 4, Section 6 of the Constitution and Rem. Rev. Stat. § 15 gives superior courts and their judges power to issue writs of habeas corpus on petition by or on behalf of any persons in actual custody in their respective counties.  Thus, either the Supreme  [[Orig. Op. Page 3]] Court or the Superior Court of the county in which the petitioner is held in custody may entertain original jurisdiction.  Accordingly, only that court to which the petition is first addressed has authority, under the statute cited above, to order prosecution without prepayment of fees and costs.

            This statute provides that a proceeding in habeas corpus "may be prosecuted without prepayment of fees or costs or the giving of security therefor."  Without an enumeration of what expenses are included within the statutory language, and without an adjudication of this question in our court, it is necessary to examine the general law in regard to the extent of public assistance available to applicants for habeas corpus who are unable to pay such expenses.  The following statement in an annotation in 162, A.L.R. at page 922 expresses the general rule:

            "It has been uniformly held however, that the right to the aid of counsel does not exist in habeas corpus proceedings, and that in these proceedings the court may decline to appoint counsel to represent the petitioner on the hearing and disposition of his petition for a writ of habeas corpus‑-the ground of the decision being that the right to the aid of counsel is confined to criminal proceedings and habeas corpus proceedings are not criminal in their nature, but are civil proceedings to insure the civil liberties of the citizens.  * * *"

            Inasmuch as there is no right without statutory authority to the assistance of counsel in habeas corpus matters, that right will not be implied in the absence of clear language establishing it.

            Because the assistance of counsel need not be granted as a matter of right, it does not necessarily follow that a court may not appoint counsel in a proper case at its discretion.  Rem. Rev. Stat. § 1083 permits a court or judge in a habeas corpus proceeding to make such temporary orders in the cause as justice may require.  Whether this is sufficient authority for the appointment of counsel is arguable.  At any rate, a court has an inherent power to promote the ends of justice, and an attorney appointed by a court to represent an indigent petitioner at the original hearing has at least a professional obligation to represent such petitioner.  On the same premise, counsel may be appointed to advise an indigent appellant in a habeas corpus proceeding and to assist him in the preparation and prosecution of his appeal.  However, a court does not have  [[Orig. Op. Page 4]] authority to require an attorney to perform services which must necessarily involve any outlay of expense.  As we hold below, attorneys' fees may not be borne at public expense.  Expenses incidental to litigation, such as transportation costs, and printing and stenographic fees, must then be paid by the appellant himself or by his attorney, if complete assistance of counsel were granted.  For this reason, it is our opinion that the grant of the right or privilege of the aid of counsel on appeal in a habeas corpus proceeding must be confined to those services which do not require an actual outlay of money by the attorney appointed by a court.

            Your next inquiry is whether the county is liable for attorneys' fees where counsel is appointed to assist an indigent petitioner on appeal.  InPresby v. Klickitat County, 5 Wash. 329, 31 Pac. 876, counsel had been appointed to defend an indigent person accused of a crime under authority of Chapter 85, Section 1063, Code of 1881, which is the same as Rem. Rev. Stat. § 2095, which provides:

            "If the defendant appear without counsel, he shall be informed by the court that it is his right to have counsel before being arraigned, and he shall be asked if he desire the aid of counsel, and if it appear that he is unable to employ counsel, by reason of poverty, counsel shall be assigned to him by the court."

            In an action against the county to enforce payment of attorneys' fees, it was held that such appointment did not raise a legal obligation and that the county was not liable.  The court said:

            "* * * It seems clear to us, if the legislature had intended that counsel should be paid for services rendered in cases of this character, they would have made their intention manifest by some enactment beyond that which merely prescribes the duty of the court in such cases.  * * *"

            In the instant situation, there is no statutory authority specifically authorizing appointment of counsel, whereas in the Presby case the court was required to appoint counsel.

             [[Orig. Op. Page 5]]

            Accordingly, it is the opinion of this office that the county is not liable for attorneys' fees where a Superior Court of that county appoints counsel to assist an indigent petitioner on appeal from a denial of a writ of habeas corpus.

            You ask finally, whether the county is liable for costs of an appeal in a habeas corpus proceeding.

            The answer to this inquiry depends again upon the language of the statute which permits an appeal without "prepayment of fees or costs."  There appears to be no generally accepted definition of fees or costs.  The latter has been held to include the expenses of litigation between the parties, while fees strictly includes only services performed by officers or witnesses.  See 14 Am.Jur. Costs, § 2.  Without a specification in the statute of what services are available to an indigent petitioner, we must again interpret the legislative intent by an examination of the general law.

            While a proceeding in habeas corpus is a civil matter, the forma pauperis provision is analogous to the same provision in criminal causes.  The opinion inState ex rel. Bird v. Superior Court, 31 Wn. (2d) 110, 190 P. (2d) 762, indicates the court's reluctance to extend public assistance to litigants beyond what is required by statute.  In that case, Bird made application for a writ of mandate directing the Superior Court to enter an order permitting him to prosecute his appeal in forma pauperis, and to enter an order directing the clerk to prepare and file a transcript of the records in the original cause.  The Supreme Court held that the only assistance at public expense to which an indigent defendant is entitled in prosecuting an appeal is found in Chapter 69, Section 4, Laws of 1943 (1943 Rem. Supp. § 42-5) which provides that the presiding judge may order a transcript of the reporter's notes of the testimony and other proceedings into longhand, the costs to be borne by the county.

            It is noted that the opinion in the Bird case was given in spite of the provision of Amendment 10 to the Washington Constitution, which provides that an accused shall have the right to appeal in all cases, and in no instance before final judgment be compelled to advance money or fees to secure this right.

            For this reason, we feel that the county is not obliged to pay those charges normally paid to reimburse court officers for services performed at the instance of appellant litigants.  Furthermore, a county should not be required to pay such expenses as filing fees in the Supreme Court, since this would involve a transfer of monies from one public fund to another, and the language of the statute seems to contemplate a waiver by the Court rendering services incident to litigation of prepayment of such fees as a condition to entertaining the cause.

             [[Orig. Op. Page 6]]

            Accordingly, it is the opinion of this office that a county is not liable for the payment of costs on an appeal from a denial of a writ of habeas corpus of an indigent applicant in a Superior Court of the county.

Very truly yours,

SMITH TROY
Attorney General

LAWRENCE K. McDONELL
Assistant Attorney General