SMITH v. MOORE

SMITH v. MOORE
2002 OK 49
50 P.3d 215
Case Number: 96949
Decided: 06/11/2002

THE SUPREME COURT OF THE STATE OF OKLAHOMA

EUGENE SMITH, Appellant
v.
THE HONORABLE MARK A. MOORE, DISTRICT COURT JUDGE, BLAINE COUNTY, Appellee

[50 P.3d 215]

ON APPEAL FROM THE DISTRICT COURT OF BLAINE COUNTY, HONORABLE MARK A. MOORE, ASSOCIATE DISTRICT JUDGE

¶0 Eugene Smith, a prisoner, filed for a writ of mandamus in the District Court of Blaine County. He submitted a request to proceed as a pauper so that he would not have to pay the filing fee in the case. Upon consideration of Smith's status, the trial judge ordered Smith to pay $48.00 as a filing fee and imposed a lien on his pay from prison labor. Smith appealed. We recast the appeal as an original proceeding for a prerogative writ.

WRITS OF PROHIBITION AND MANDAMUS GRANTED IN PART
AND DENIED IN PART, WITH INSTRUCTIONS.

Eugene Smith, pro se

WINCHESTER, J.

¶1 The appellant, Eugene Smith, a prisoner, filed an application for a writ of mandamus and requested pauper status so that court costs would be waived. The trial court issued an order dated September 24, 2001, which found that Smith had an income of $24.00 per month for "gang pay." The court then assessed $48.00 of court costs against Smith, citing Foust v. Pearman,

¶2 We must initially determine a procedural issue, and that is whether the district court's order is appealable. This Court has appellate jurisdiction to review final orders, interlocutory orders appealable by right, and certified interlocutory orders.

"An appeal does not lie to this court from an intermediate or interlocutory order made during the pendency of an action, which intermediate or interlocutory order leaves the parties in court to have the issues tried on the merits, unless the appeal sought to be taken comes within some one of the special orders from which an appeal is authorized by statute prior to final judgment in the main action."

The order in the present case is not a final order because it does not conclude the litigation; [50 P.3d 216] it merely requires the payment of a filing fee. The wording of the order does not prevent the prisoner from proceeding further with the case, nor does it require him to wait until he has accumulated $48.00. Rather, the order imposes a lien on Smith's gang pay so that it would be paid to the court clerk by the prison facility as the pay became due. Because the order has no effect on the continuation of the district court case, the order is an interlocutory judicial action that is unreviewable in advance of judgment. LCR, Inc. v. Linwood Properties,

¶3 Even though this case is not appealable, and this Court may properly dismiss it, the case presents the issue of the constitutional right of access to the courts.

¶4 Smith asserts that he had only $0.24 in his account at the time he petitioned for pauper status. He argues that the trial court abused its discretion, given the amount in his account, by failing to follow the guidelines in

¶5 Foust,

¶6 Foust held that a court in exercising its discretion when determining a proper partial fee, may consider present account balances of the prisoner, monthly income, other assets, and whether any funds are withdrawn to avoid payment of a statutory fee or partial fee. Foust,

¶7 The general rule for a prerogative writ to issue is that the party seeking the writ must have a clear legal right to the relief sought and the respondent must have a plain legal duty in which the exercise of discretion is not implicated; and it may be issued only in situations where there is no plain and adequate remedy in the ordinary course of the law. Oklahoma Gas & Electric v. District Court,

¶8 We issue the writs of mandamus and prohibition to the extent that the district court shall not require a filing fee equal to all of Smith's funds. The district court shall determine the amount of the filing fee consistent with the guidelines found in Foust and the instructions in this opinion. That court shall also allow Smith an opportunity to object to the filing fee as so determined.

WRITS OF PROHIBITION AND MANDAMUS GRANTED IN PART
AND DENIED IN PART, WITH INSTRUCTIONS.

¶9 CONCUR HARGRAVE, C.J., WATT, V.C.J., HODGES, LAVENDER, SUMMERS, BOUDREAU, WINCHESTER, JJ.

 OPALA, J., DISSENTING,

¶1 I DISSENT FOR THE REASONS EXPRESSED BY KAUGER, J. IN HER DISSENT

KAUGER, J., DISSENTING

¶1 FOR REASONS EXPRESSED IN MAHORNEY V. MOORE, 2002 OK 39. [50 P.3d 218]

FOOTNOTES

1Article 2, § 6 of the Constitution of the State of Oklahoma provides: "The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice."

2We cite the current statutes. The Court in Foust cited 28 O.S.1991, § 152, and 57 O.S.1991, § 565.

328 O.S. 2001, § 152(E) provides: "In any case in which a litigant claims to have a just cause of action and that, by reason of poverty, the litigant is unable to pay the fees and costs provided for in this section and is financially unable to employ counsel, upon the filing of an affidavit in forma pauperis executed before any officer authorized by law to administer oaths to that effect and upon satisfactory showing to the court that the litigant has no means and is, therefore, unable to pay the applicable fees and costs and to employ counsel, no fees or costs shall be required. The opposing party or parties may file with the court clerk of the court having jurisdiction of the cause an affidavit similarly executed contradicting the allegation of poverty. In all such cases, the court shall promptly set for hearing the determination of eligibility to litigate without payment of fees or costs. Until a final order is entered determining that the affiant is ineligible, the clerk shall permit the affiant to litigate without payment of fees or costs. Any litigant executing a false affidavit or counter affidavit pursuant to the provisions of this section shall be guilty of perjury."

57 O.S. 2001, § 565 provides: "In determining whether or not an inmate shall be allowed to use an affidavit in forma pauperis, the court shall consider the amount of funds an inmate has on deposit with the Department of Corrections."

4Title 12 O.S. 2001, § 2003.1(D) provides: "In all cases in which the petitioner, movant, or plaintiff is an inmate of a penal institution and desires to proceed in forma pauperis, in addition to the proof of poverty required by subsection C of Section 152 of Title 28 of the Oklahoma Statutes, the inmate shall submit a certificate executed by an authorized officer of the institution in which the inmate is confined stating the amount of money or securities on deposit to the inmate's credit in any account in the institution. The certificate may be considered by the court in acting on the motion for leave to proceed in forma pauperis. In the absence of exceptional circumstances, leave to proceed in forma pauperis may be denied if the value of the money and securities in petitioner's, movant's, or plaintiff's institutional account exceeds Two Hundred Dollars ($200.00)."

5Although there is no specific statutory authority for describing the trial court's orders as liens on Smith's account, a court has the common law authority to issue orders to assure compliance with a previous order of the court.