(concurring)—Appellant Carter recognizes the disposition of his motion for an order for expenditure of public funds to enable him to proceed with his appeal depends upon whether his claim for relief is one of “probable merit” as that undefined term is used in Carter v. University of Washington, 85 Wn.2d 391, 536 P.2d 618 (1975) (Carter 1). Cases prior to Carter 1 involving the court’s *486discretionary power to waive court fees and to provide litigation expenses for indigents pressing a claim for relief in a civil cause, confined the exercise of such power to cases neither frivolous nor patently frivolous in character. Iverson v. Marine Bancorporation, 83 Wn.2d 163, 169, 517 P.2d 197 (1973); O’Connor v. Matzdorff, 76 Wn.2d 589, 458 P.2d 154 (1969).
O’Connor clearly indicated the court would not grant such discretionary relief unless the issue or issues involved had “probable substance.” O’Connor v. Matzdorff, supra at 603. An issue could be one of “probable substance” without necessarily being one, the resolution of which would be probably successful. If “probable merit” meant only “probably successful,” appeals by indigent litigants could be seriously and adversely affected. Thus, as here, a trial court having just dismissed an indigent’s case as one without merit could scarcely make a finding that the litigant’s claim would probably be successful. The trial court could, however, find the case it dismissed had “probable substance,” i.e., involving issues fairly debatable without thereby finding that on appeal the dismissal of the case would be probably reversed.
Unless there was an intention to curtail entitlement by indigents of access to the courts—there being no evidence of such an intention in Carter 1—a definition of “probable merit,” after O’Connor and Iverson, was essentially unnecessary.
In the instant case, however, appellant has failed to demonstrate his case has an issue of probable substance as one whose merits are fairly debatable. Indeed the trial court’s finding that “appellant has very little or practically no chance of prevailing on the merits” is a recognition that the issue is not fairly debatable and therefore not one of probable substance.
I therefore concur in the majority’s denial of appellant’s motion.
Utter, J., concurs with Horowitz, J.