Dennis R. Cookish v. Danielle Clark

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0680, Dennis R. Cookish v. Danielle Clark,
the court on May 26, 2016, issued the following order:

Having considered the brief and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We
vacate and remand.

The plaintiff, Dennis R. Cookish, appeals an order of the Superior Court
(McNamara, J.) denying his request to waive a sheriff’s fee for service of
process. He argues that, based upon his indigence, he was entitled to waiver of
the fee, and that by denying the request, the trial court deprived him of access
to the court and a remedy under Part I, Article 14 of the State Constitution.

The record establishes that in 2010, the plaintiff filed a civil action
against the defendant, Danielle Clark, in superior court. In connection with
the case, the trial court waived the sheriff’s fee and all but $5 of the filing fee.
In 2012, the plaintiff obtained judgment in the amount of $4,264.60, plus costs
and statutory interest.

In June 2015, the plaintiff filed a motion for periodic payments of the
judgment, see RSA 524:6-a (Supp. 2015), and a motion to waive fees. The trial
court granted the motion to waive fees, but apparently did not waive the
sheriff’s fee. It then issued a summons and ordered the plaintiff to have the
sheriff’s office serve the defendant no later than September 30, 2015.

On September 27, 2015, the plaintiff filed a motion to waive the sheriff’s
fee, asserting that the sheriff’s office required prepayment of $50, that he was
incarcerated, and that he did not have money to satisfy the fee. The trial court
denied the motion without explanation. The plaintiff moved for
reconsideration, asserting that his financial circumstances had not changed
since the court had waived the sheriff’s fee in 2010, and that denial of the
motion deprived him of access to the court and the right to a remedy under
Part I, Article 14 of the New Hampshire Constitution. The trial court denied
the motion, reasoning that “[t]he Plaintiff’s right to a remedy does not extend to
the Court requiring the public to fund Plaintiff’s attempt to recover money.”

Although we have observed that, under certain circumstances, the
constitutional right of access to the courts may bar the imposition of fees for
service of process upon a party who, by reason of poverty, cannot afford the
fees, see Brown v. Brown, 112 N.H. 410, 411 (1972), we have never addressed
whether the right to a remedy under Part I, Article 14 entitles an impoverished
plaintiff to waiver of fees for service of process in order to collect a judgment.
We note that courts in other jurisdictions have reached differing conclusions in
similar cases. Compare Patrick v. Lynden Transport, Inc., 765 P.2d 1375,
1379 (Alaska 1988) (in invalidating bond requirement for nonresident plaintiffs
on state equal protection grounds, observing that access to courts both to
reduce a claim to judgment and to collect it is an important right protected by
the Alaska Constitution), with Bowman v. Waldt, 513 P.2d 559, 562-64 (Wash.
Ct. App. 1973) (holding that Washington Constitution did not require waiver of
fees and costs charged by a sheriff for executing a writ of execution on behalf of
an indigent judgment creditor).

We need not decide in this case whether the New Hampshire
Constitution entitled the plaintiff to waiver of the sheriff’s fee, however, because
the trial court was statutorily authorized to waive it if it found that the plaintiff
was indigent, and because it does not appear that the trial court considered its
statutory authority. Cf. State v. Brouillette, 166 N.H. 487, 492-93 (2014)
(declining to consider constitutional argument because the relevant statute
granted the defendant relief). RSA 499:18-b (2010) expressly provides that
“any person, by reason of poverty, may seek relief from the payment of any fees
provided by law which are payable to any court, clerk of court, or sheriff,” and
authorizes the trial court to “order the payment of such fees waived.” See also
RSA 623-B:2, IV, :3, I, III (2001) (authorizing court to allow inmate to
commence, prosecute, or defend any civil action or proceeding without
prepayment of fees and costs if inmate is unable to pay such fees or costs, or
upon such partial payment of fees and costs as inmate can afford). The trial
court’s authority includes the waiver of “[f]ees for the service of process by
sheriffs,” which “shall be a charge against the state” if waived. RSA 499:18-b.

In this case, there is no indication in the record that the trial court
considered its authority under RSA 499:18-b to waive the sheriff’s fee; it simply
denied the request to waive the sheriff’s fee after it had earlier granted the
plaintiff’s June 2015 motion to waive fees, and then reasoned on
reconsideration that the plaintiff’s right to a remedy did not encompass a right
to have the public subsidize his collection costs. The failure to exercise
discretion is itself an unsustainable exercise of discretion. See DeButts v.
LaRoche, 142 N.H. 845, 847 (1998). Accordingly, we vacate the trial court’s
order denying the motion to waive the sheriff’s fee, and direct the trial court,
upon remand, to reconsider the request pursuant to RSA 499:18-b.

If the trial court, upon remand, exercises its discretion under RSA
499:18-b to deny the motion to waive the sheriff’s fee, it shall issue written

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findings of fact and rulings of law sufficient to allow for meaningful appellate
review of its decision.

Vacated and remanded.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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