dissenting.
Although I have seen enough of this case that likely I would have upheld a denial of transcripts based on a district court’s conclusion that an appeal had little chance of success, I cannot agree that the Johnsons were not indigent, which was said to be so because “[t]here is no allegation that the Plaintiffs do not have the financial ability to borrow funds from commercial lenders or from friends .... ”
The record demonstrates that the John-sons were in fact indigent; that monthly expenses of Curtis and Joan Johnson slightly exceeded their monthly income; that they had outstanding debts and judgments against them totaling over $18,000; that they had no assets which they could have sold in order to raise the amount of money needed to finance the appeal. Borrowing from anyone but a moron was out of the question. The Johnsons simply did not have the assets which lenders require. Their monthly expenses exceeded their monthly income, Curtis Johnson is totally disabled, and in my experience lenders want to know how money borrowed will be paid back.
It has always been the policy of this state to provide for indigent persons. In 1864, the Indigent Sick Act was enacted to provide for “the care, protection, and maintenance of the indigent sick.” Similarly, in 1883, the territorial legislature enacted the first Poor Act to provide for the poor who were not sick. Provision is still made for sick and indigent persons through Chapters 34 and 35 of Title 31 of the Idaho Code. Just as the state has provided aid to indigent persons in need of medical attention, so has it always provided legal assistance to persons accused of serious crimes. Article 1, § 13 of the Idaho Constitution guarantees that “[i]n all criminal prosecutions, the party accused shall have the right ... to appear and defend in person and with counsel.” The right of needy persons to counsel is now codified in I.C. § 19-852 (“A needy person who is being detained by a law enforcement officer, who is confined or is the subject of hospitalization proceedings ..., or who is under formal charge of having committed or is being detained under a conviction of, a serious crime, is entitled ... to be represented by an attorney to the same extent as a person having his own counsel is so entitled.... ”). See I.C. §§ 19-853(e) and 19-856. Similarly, under I.C. § 16-1809A, the Youth Rehabilitation Act, an indigent youthful offender is entitled to an order of the court providing legal representation. In re Dunmire, 100 Idaho 697, 604 P.2d 711 (1979).
With the enactment of I.C. § 31-3220, the Idaho legislature extended its policy of providing for indigent persons into the area of civil litigation. The wisdom of this provision is not for this Court to judge; our only task is to apply the legislature’s act, which is not ambiguous. The message the Court today sends forth is that under I.C. § 31-3220 a petition for waiver of costs and fees on appeal in a civil action can be denied if the trial court thinks that the petitioning party should or might be able to borrow money from someone. Tomorrow it may do the same in cases of medical indigency or prosecutions against indigent criminally accused persons. I cannot agree the legislature intended the statute to be applied in such a manner. I would therefore reverse and remand in order that the court determine if the Johnson’s appeal was “frivolous, malicious” or “not taken in good faith.” I.C. § 31-3220(2). To my mind, it would seem that expenditures of public money for appeal transcripts in civil cases where the court sees little chance of success is tantamount to being an appeal “not taken in good faith.”