A fee waiver is just that, Court rules

CHARLESTON –- The state Supreme Court has made clear someone appealing a case from magistrate to circuit court is not required to pay the appeal fee if he or she has been granted a fee waiver.

The Court on May 3 granted writs of mandamus in separate landlord-tenant disputes in Wood and Roane Magistrate courts. In a unanimous, unsigned opinion, the Court said the respective magistrate court clerks could not prohibit the cases from being appealed to circuit court since the tenants previously had their fee waivers approved.

In the Wood County case, Albert Pryor sought eviction of Rhonda Bay in September 2010 after she was citied for unspecified health and safety code violations in her Parkersburg apartment the month before. Though records are unclear as when she began renting from him, Bay entered into a verbal agreement to pay Pryor $695 a month.

Following an Oct. 6 hearing, Magistrate Brenda Marshall granted Pryor immediate possession of the property, and awarded him $387.22 in costs. Bay did not attend the hearing citing her failure to receive notice of it.

A footnote in the Court's ruling stated a notice was sent to her address, but later returned as undeliverable.

Sometime following Marshall's ruling, Bay filed an appeal to Wood Circuit Court. Prior to filing her appeal, she filed a pauper's, or financial, affidavit, asking that any fees in her case be waived since she was indigent.

Though her affidavit was approved, she was told by the clerk's office she would still have to pay a fee to appeal it.

In the Roane County case, Ashleigh and Daniel Jurkovich, filed suit against their landlord, Clark Crider, for damages to their apartment caused the infestation of fleas by a neighbor's pet. In filing their suit in Roane Magistrate Court, the Jurkoviches received approval of their pauper's affidavit.

On an unspecified day, Crider filed an answer and counterclaim to the Jurkovich's suit. Sometime thereafter, Magistrate Jason Bennett awarded Crider $1,298.60. When they went to appeal Bennett's ruling to Roane Circuit Clerk, like Bay, the Jurkoviches were informed they would have to pay a $146 appeal bond.

In rendering its decision, the Court cited both state law and its previous decision in the 1979 case of Rosier v. Rosier that clearly states a poor person may appeal a case from a lower court absent an appeal bond upon approval of a pauper's affidavit. In Bay's and the Jurkovich's cases, the Court said the clerks in Wood and Roane counties were duty bound to allow the appeals to proceed.

"The statutory and rule authority for proceeding in forma pauperis provide the petitioners herein with a clear legal right to compel the clerks, by mandamus, to perform a nondiscretionary administrative duty," the Court said. "Although the courts could, at any point, require the submission of an additional affidavit of indigency, the denial by the Magistrate Courts of Wood County and Roane County of the litigants' right to proceed without payment of the requested fees was in error."

Both Bay and the Jurkoviches were represented by Bruce Perrone of Legal Aid of West Virginia.

West Virginia Supreme Court of Appeals case numbers 35736 (Bay) and 35737 (Jurkovich)