The Supreme Court of Washington.
September 9, 2004
[By an order dated September 9, 2004, the Supreme Court made the following change to the Rules of Court, effective July 1, 2005.
Amendment is: RAP 15.2.
Additions and deletions are indicated by underlining and lining out respectively.]
RAP 15.2 DETERMINATION OF INDIGENCY AND RIGHTS OF INDIGENT PARTY (a) [Unchanged.]
(b) Action by the Trial Court. In written findings and aftera hearing, if circumstances warrant, Tthe trial court shalldecide the motion for an order of indigency, after a hearing ifthe circumstances warrant, determine the indigency, if any, ofthe party seeking review at public expense and
(1) shall grant the motion for an order of indigency if theparty seeking public funds is unable by reason of poverty to payfor all or some of the expenses for appellate review of asfollows:
(1) Denial Generally. The trial court shall deny themotion if a party has adequate means to pay all of the expensesof review. The order denying the motion for an order of indigencyshall contain findings designating the funds or source of fundsavailable to the party to pay all of the expenses of review.
(2) Review at Public Expense. The trial court shall grantthe motion and enter an order of indigency if the party seekingpublic funds is unable by reason of poverty to pay for all orsome of the expenses for appellate review of:
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(a) criminal prosecutions or juvenile offense proceedings meeting the requirements of RCW 10.73.150,
(b) dependency and termination cases under Ch. 13.34,
(c) commitment proceedings under RCW 71.05 and 71.09,
(d) civil contempt cases directing incarceration of the contemner,
(e) orders denying petitions for writ of habeas corpus under RCW 7.36, 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 proceeding.
(2) shall deny the motion for an order of indigency if aparty has adequate means to pay all of the expenses of review.The order denying the motion for an order of indigency shallcontain findings designating the funds or source of fundsavailable to the party to pay all of the expenses of review.
(3c) Other Cases. In any other case, the trial courtshall consider the motion for order of indigency and, if theparty is unable by reason of poverty to pay for all of theexpenses of review, the trial court shall enter findings ofindigency which shall be forwarded to the Supreme Court forconsideration, pursuant to section (c) of this rule. The trialcourt shall determine in those findings the portion of the recordnecessary for review and the amount, if any, the party is able tocontribute toward the expense of review. The findings shallconclude with an order to the clerk of the trial court topromptly transmit to the Supreme Court, without charge to themoving party, the findings of indigency, the motion for an orderof indigency, the affidavit in support of the motion, and allother papers submitted in support of or in opposition to themotion. The trial court clerk shall promptly transmit to theSupreme Court the papers designated in the findings ofindigency. In cases not governed by subsection (b) of thisrule, the trial court shall determine in
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written findings the indigency, if any, of the party seekingreview.
(1) Party Not Indigent. The trial court shall deny themotion if a party has adequate means to pay all of the expensesof review. The order denying the motion for an order of indigencyshall contain findings designating the funds or source of fundsavailable to the party to pay all of the expenses of review.
(2) Party Indigent. If the trial court finds the partyseeking review is unable by reason of poverty to pay for all orsome of the expenses of appellate review, the trial court shallenter such findings, which shall be forwarded to the SupremeCourt for consideration, pursuant to section (d) of this rule.The trial court shall determine in those findings the portion ofthe record necessary for review and the amount, if any, the partyis able to contribute toward the expense of review. The findingsshall conclude with an order to the clerk of the trial court topromptly transmit to the Supreme Court, without charge to themoving party, the findings of indigency, the affidavit in supportof the motion, and all other papers submitted in support of or inopposition to the motion. The trial court clerk shall promptlytransmit to the Supreme Court the papers designated in thefindings of indigency.
(ed) 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
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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.
(de) 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 ofindigency shall appoint counsel if the party is entitled tocounsel on review at public expense. The order of indigency must be transmitted to the appellate court as a part of the record on review.
(ef) 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 trial 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 trial court finds the party’s financial condition has improved to the extent that the party is no longer indigent.
(fg) Appointment and Withdrawal of Counsel in TrialAppellate Court. The trialappellate court shall determine questions relating to the appointment and withdrawal of counsel for an indigent party on review,except withdrawal as provided insection (h) and counsel appointed in a capital case, pursuant toSPRC 2 or RAP 16.25. The Office of Public Defense shall, inaccordance with its indigent appellate representation policies,provide the names of indigent appellate counsel to the appellatecourts on a case-by-case basis. If trial counsel is not appointed, trial counsel must assist counsel appointed for review in preparing the record.
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(gh) Review of Order of Indigency. Only a party in a case of a type listed in section (b) (21) of this rule may seek review of an order of indigency or an order denying an order of indigency entered by a trial court. Review must be sought by a motion for discretionary review.
(hi) 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).