West Virginia Record

Sunday, February 16, 2020

Judge wrongly denied fee waiver, Justices say

By Steve Korris | Feb 4, 2011



CHARLESTON – Morgan Circuit Judge John Yoder improperly denied waiver of filing fees in a civil suit, the Supreme Court of Appeals decided.

Instead of determining whether Keith Deblasio of Great Cacapon qualified as a pauper, Yoder required payment because he considered the suit frivolous and vexatious.

"While we appreciate the circuit court's motivation, there are substantial constitutional implications in adopting the circuit court's 'pay even if indigent approach' as a means of preventing the filing of dubious lawsuits," Justice Menis Ketchum wrote in his Jan. 21 ruling.

He wrote that in rare instances, litigants have demonstrated by prior conduct a willingness to engage in litigation that amounts to abuse of process.
"There is no indication in the record before us that the petitioner has engaged in such prior conduct that would warrant any sort of special pre-filing review by a circuit judge of his civil filings," Ketchum wrote. "A poor person, particularly a poor person proceeding pro se, should not be exposed to the risk that a court would deny them access simply because they are unable to artfully word a civil complaint."

The Justices also faulted Circuit Clerk Kimberly Jackson for failing to perform her duty.

Ketchum wrote that she forwarded Deblasio's application to Yoder without making an initial determination of his eligibility to proceed as a pauper.

Deblasio appeared in the clerk's office last July 28, to sue several defendants.

He asked to proceed as a pauper, and he completed an affidavit and application.

A deputy clerk told him his complaint, along with the application and the affidavit, would be forwarded to the judge for review.

On Aug. 7, Yoder denied the application without giving any reason.

On Sept. 9, Deblasio petitioned the Supreme Court of Appeals for relief.

Morgan County Prosecuting Attorney Debra McLaughlin argued to the Justices that Jackson required either filing fees or a waiver from the judge

Yoder didn't dispute that Deblasio's affidavit seemed to meet the guidelines, but wrote that he denied the application because the suit was frivolous and vexatious.

Neither Jackson nor Yoder swayed the Justices.

Ketchum wrote that a clerk, not a circuit judge, must review an affidavit.

"The sole inquiry to be determined by the clerk is whether the financial information listed in the financial affidavit meets the guidelines," he wrote.

"Neither the veracity of the disclosures made in the affidavit, nor the merits of the underlying civil action, are to be considered by the clerk," he wrote.

If an affidavit meets the guidelines, he wrote, a clerk must immediately file the action.

If an affidavit doesn't meet the guidelines, he wrote, a clerk must deny it and inform the applicant of his right to request review by a judge.

The Justices did not find that Deblasio met the standards for eligibility, and they did not order Jackson to grant his application.

Ketchum wrote that according to his complaint, he owns lots of 2.95 acres and 5.26 acres in Cold Spring Forest subdivision.

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