Former Pierce County Superior Court Judge Michael Hecht had lost repeatedly in lower courts when he argued that he is broke and could not afford to pay for his appeals of a November, 2009 conviction of felony harassment and patronizing a prostitute.

But the state Supreme Court this morning ruled that because Hecht was receiving food stamps from the state, he was by definition of law indigent. The court ordered the case back to Superior Court for a determination of indigency.

“By statute an indigent person includes anyone who ‘at any stage of a court proceeding’ receives certain types of public assistance, including ‘food stamps or food stamp benefits transferred electronically,’ ” the order stated. “Other criteria

qualify a person for indigency status, but all of the criteria are listed disjunctively. The use of the disjunctive “or” indicates that a person is indigent if he is able to satisfy any one of the statutory criteria.”

 

“Hecht is therefore presumptively indigent because he receives public assistance in the form of food stamp benefits.To the extent he may have access to funds to pay a “portion” of the “anticipated cost of counsel” (an issue we need not decide), Hecht is potentially “indigent and able to contribute” to his representation. RCW 10.101.010(2). But in that case he is still entitled to indigency status, even if only to obtain public assistance for part of his appellate expenses.”

According to the order, Hecht acknowledged that he owned real property but that a bank had denied him a line of credit on his equity. He told the court he had $88,000 in income after taxes in 2009 but said he was no longer employed. His
wife earned $800 per month and the couple had “significant debts.”

Based on affidavits submitted by his defense attorney, costs and fees for Hecht’s appeal were between $17,500 and $27,500.

Elected to the bench in summer 2008, Hecht resigned in 2009 after being convicted of felony harassment and patronizing a prostitute. A Pierce County jury found him guilty of threatening to kill a man who claimed he sold sex to Hecht and of buying sex from another young man.

Here’s the court ruling,

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, NO. 8 6 0 7 8 – 5

v.
EN BANC
MICHAEL A. HECHT,

Petitioner.
Filed November 10, 2011

PER CURIAM — Former Pierce County Superior Court Judge Michael
Hecht was convicted of felony harassment and patronizing a prostitute. The trial court
denied Hecht’s motion for an order of indigency, and the Court of Appeals denied his
motion for discretionary review of that order. Hecht now seeks discretionary review in
this court. We grant review and remand to the trial court for further proceedings.
Hecht was convicted soon after he was elected to the Pierce County
Superior Court bench. The trial court imposed judgment and sentence in November
2009. Retained counsel represented Hecht through trial and sentencing. He resigned
from the bench after his conviction.
Hecht filed a timely notice of appeal and a motion for order of indigency in
superior court. He reported owning real property but also claimed that a bank had
denied him a line of credit on his equity. He also reported $88,000 in income after
taxes in 2009 but asserted that he was no longer employed. And he reported that his
wife earned $800 per month. He also claimed significant debts.
The superior court denied indigency status without entering findings. The
Court of Appeals remanded for a hearing and entry of findings of fact and conclusions
of law. On remand Hecht asserted among other things that he spent his 2009 income
on his trial, that his wife’s income had not changed, that he could not work because he
was in declining health and in need of surgery, that his creditworthiness had been
downgraded, and that defense counsel had forgiven $15,000 owed and would not
represent him pro bono on appeal. Defense counsel submitted an affidavit and
correspondence estimating transcription and attorney fees for appeal between $17,500
and $27,500.
The superior court again denied indigency status, finding that Hecht had
“adequate means” to pay for all of his expenses on appeal. RAP 15.2(b)(2). The Court
of Appeals denied discretionary review. On discretionary review in this court, Hecht
moved to supplement the record with evidence that he had begun receiving food
stamps. The court granted the motion and remanded the matter to the superior court to
reconsider Hecht’s indigency motion in light of his receipt of public assistance.
The superior court again denied Hecht’s motion for an order of indigency,
concluding that even with the receipt of food stamp benefits he had “adequate means”
to pay the expenses of appeal. The Court of Appeals again denied discretionary
review. Hecht again moved for this court’s discretionary review.
A party seeking appellate review “partially or wholly at public expense”
must move in the superior court for an order of indigency. RAP 15.2(a) (emphasis
added). The superior court will grant the motion for an order of indigency if it
determines that the moving party is “unable by reason of poverty to pay for all or
some of the expenses for appellate review.” RAP 15.2(b)(1) (emphasis added). If the
party is unable to pay any expenses of review, or can pay only a portion of those
expenses, the superior court is to designate those items to be paid with public funds,
and if applicable “the items of expense to be paid by a party or the amount which the
party must contribute toward the expense of review.” RAP 15.2(e). But the court must
deny indigency status altogether if the moving party “has adequate means to pay all
the expenses of review.” RAP 15.2(b)(2) (emphasis added).
By statute an indigent person includes anyone who “at any stage of a court
proceeding” receives certain types of public assistance, including “food stamps or food
stamp benefits transferred electronically.” RCW 10.101.010(1)(a). Other criteria
qualify a person for indigency status, but all of the criteria are listed disjunctively. See
RCW 10.101.010(1)(a)-(d). The use of the disjunctive “or” indicates that a person is
indigent if he is able to satisfy any one of the statutory criteria. See In re Marriage of
Caven, 136 Wn.2d 800, 807, 966 P.2d 1247 (1998).
Hecht is therefore presumptively indigent because he receives public
assistance in the form of food stamp benefits. RCW 10.101.010(1)(a). To the extent he
may have access to funds to pay a “portion” of the “anticipated cost of counsel” (an
issue we need not decide), Hecht is potentially “indigent and able to contribute” to his
representation. RCW 10.101.010(2). But in that case he is still entitled to indigency
status, even if only to obtain public assistance for part of his appellate expenses.
We recognize that RAP 15.2 and chapter 10.101 RCW do not refer to one
another. The court rule was originally adopted in 1976, while the statute was enacted
in 1989. RCW 10.101.005; Laws of 1989, ch. 409, § 1. But the rule and the statute can
be harmonized. See In re Det. of C.M., 148 Wn. App. 111, 116-17, 197 P.3d 1233,
review denied, 166 Wn.2d 1012 (2009). A superior court determining the indigency of
a person under RAP 15.2(b) must determine whether the person meets the statutory
definition of “‘[i]ndigent’” or “‘[i]ndigent and able to contribute’” under RCW
10.101.010(1) and (2). If the person meets either of those definitions, the court must
grant indigency status. RAP 15.2(b)(1). And if the person is “indigent and able to
contribute” the court must designate those expenses to be borne by the defendant.
RAP 15.2(e).1 In light of Hecht’s receipt of public assistance, the trial court erred in
denying his motion for indigency status altogether.2

We grant Hecht’s motion for discretionary review and remand to the
superior court to reconsider his motion for order of indigency in light of this opinion.

1 We note that the statute authorizes the superior court to require a person who is
indigent and able to contribute to execute a promissory note for the cost of counsel. RCW
10.101.020(5). We need not determine at this time whether that specific provision applies
here or conflicts with RAP 15.2, leaving that issue for the superior court to consider on
remand.
2 We do not determine whether Hecht currently meets other potentially applicable
definitions of indigency. See RCW 10.101.010(1)(c), (d). The superior court may
consider that question on remand if Hecht raises the issue.