Carter v. University of Washington

Dolliver, J. The facts regarding appellant Carter are contained in Carter v. University of Washington, 85 Wn.2d 391, 536 P.2d 618 (1975) (Carter 1). In this case (Carter 2), appellant is before the court on a motion for an order waiving all costs of his appeal. The motion is denied. Appellant urges Carter 1 to be considered the law of the case for Carter 2. We concur. Kennett v. Yates, 45 Wn.2d 35, 272 P.2d 122 (1954); Tucker v. Brown, 20 Wn.2d 740, 150 P.2d 604 (1944). Thus, it is here unnecessary to reconsider the court’s views in Carter 1 on a fundamental right of access to the courts or a constitutional right of appeal. The only question before the court is whether the factual determinations of the trial court indicate that the requirements of “indigency, good faith, probable merit” upon which right of access or right of appeal are contingent, were met. Carter 1, at page 402. In its findings of fact, the trial court found the defendant “to be a bona fide indigent” and to be “pursuing his remedy in good faith.” These findings are not contested. Finding of fact No. 3 is as follows: Probable Merit or Lack of Frivolity. The Court finds that appellant has very little or practically no chance of prevailing on the merits, but the Court further finds that the appeal is not patently frivolous. This finding is based on the fact that the Court does not feel that it should make a finding that the appeal is patently frivolous when the appellant disagrees with the Court’s opinion since this would amount to the trial judge affirming himself. It is apparent from the first clause of the first sentence of finding of fact No. 3 that the trial court believes appellant’s case had no probable merit. The difficulty arises in the statement “but the Court further finds that the appeal is not patently frivolous.” Appellant urges that, under the test in Iverson v. Marine Bancorporation, 83 Wn.2d 163, 517 [485] P.2d 197 (1973) at page 165, referred to in Carter 1 at page 403, the phrase “is not patently frivolous” is controlling and thus the test in Carter 1 has been met. See also O’Connor v. Matzdorff, 76 Wn.2d 589, 458 P.2d 154 (1969). We disagree. First, regardless of the language of Iverson, it is clear that “probable merit” is a test contained in Carter 1, and that an indigent must “demonstrate the probable merit of the claim before free access is provided.” Carter 1, at page 401. Whatever else was stated by the trial court in finding of fact No. 3, there is a clear finding that the burden of demonstrating probable merit has not been met by the appellant. Second, assuming arguendo the view of the appellant that, if a case is “not patently frivolous” then it does have “probable merit,” he still does not prevail. When finding of fact No. 3 is read as a whole, it is apparent the trial judge did not find the appeal “not patently frivolous” because of any probable merit it might have. Rather, the court did not “feel that it should make a finding that the appeal is patently frivolous when the appellant disagrees with the Court’s opinion since this would amount to the trial judge affirming himself.” However this court may have used the term “patently frivolous” in previous cases, in this case the trial court used the term not to assert that the factual determinations required by Carter 1 had been met, but only to give the highly restricted meaning as indicated above. The motion is denied. Stafford, C.J., Hunter, Hamilton, Wright, Utter, and Brachtenbach, JJ., and Ryan, J. Pro Tern., concur.