Vol. 28, No. 4
Legal Services News
Motions In Forma Pauperis: The First Step in Access to Justice
by Barbara G. Chamberlain
Most attorneys represent clients who can afford to pay the filing fee necessary to initiate a lawsuit. Attorneys who represent the occasional pro bono client should be aware that Colorado law provides for the waiver of certain court fees for those who are unable to bear that expense. A new Chief Justice Directive ("CJD") clarifies the circumstances in which the fee waiver is appropriate, sets forth the procedure for court approval of the waiver, and provides a standardized form for use in all Colorado courts.
Article II, § 6 of the Colorado Constitution provides:
Equality of Justice. Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.
To effect the constitutional mandate of open courts, CRS § 13-16-103 provides that an indigent person may prosecute or defend in a court proceeding without the payment of costs, at the discretion of the court. Case law has interpreted the statute to provide for waiver of fees and expenses owed to the state, such as filing fees and cost bonds.1
Prior to the CJD, attorneys generally prepared and filed a self-drafted Petition or Motion designated "in Forma Pauperis"2 or "for Waiver of Costs and Fees" to obtain the waiver. An affidavit setting forth the financial condition of the client usually accompanied the Petition or Motion. For the financial affidavit, attorneys had access to the standard form available from Bradford Publishing, "Affidavit with Respect to Financial Affairs." Until recently, there was no prescribed, standardized form for the Petition/Motion itself.
Chief Justice Directive 98-01
Early in 1998, then-Chief Justice Anthony F. Vollack issued Chief Justice Directive 98-01, entitled "Costs for Indigent Persons in Civil Matters."3 A new form, designated FSD 98-01, accompanied the CJD. The Office of the State Court Administrator solicited comments about the form and, in response to the input received, a Revised Chief Justice Directive 98-01 was issued on June 1, 1998.4
The CJD clarifies that only fees and expenses owed to the state of Colorado may be waived, not any obligation for payment to a person or entity other than the state. Costs that may be waived include filing fees, reasonable copy fees, jury fees, and research fees.5 Costs that may not be waived include transcript fees, witness fees, and process-server fees. However, if a court delivers documents for service of process to the sheriff, the sheriff's fee may be waived by the court; if the party delivers the documents to the sheriff, the fee may be waived only on the sheriff's independent determination.6
The CJD also makes clear that it is appropriate for an indigent person to recover a judgment for costs if that person is the prevailing party. If the costs are collected by the indigent person, that person must pay the court the amount of court costs that the court waived by virtue of the CJD and CRS § 13-16-103.
Procedure for Waiver of Court Costs
Persons requesting waiver of court costs must complete, or have completed on their behalf, the new Motion to File Without Payment and Supporting Financial Affidavit, Form FSD 98-01. This form effectively combines the Motion in Forma Pauperis and Financial Affidavit formerly used and adds a second page captioned "Finding and Order Concerning Payment of Fees" for use by the court to approve or disapprove the Motion.
Experience with the form thus far suggests that the form must be filled in completely, with no blank spaces. If an item does not apply, the applicant should so note. The form requires most recent employment information on both the applicant and the applicant's spouse. In a divorce filing, the spousal information must be provided in the appropriately designated block. However, in the block provided for reporting the applicant's gross income, the spouse's income should not be listed if the applicant has no current access to that income. The block for reporting the number of persons in the applicant's household should include the applicant and all dependent children (including those not of the marriage), but should not include the spouse if the parties are physically separated and not sharing income and expenses.
When the form is accurately completed and signed by the party, it must be submitted to the court, together with the pleadings to be filed on behalf of the party. Court staff then review the information on Form FSD 98-01 to determine whether or not the applicant is indigent and therefore eligible for waiver of the court costs. This determination is made on the basis of three factors: income, liquid assets, and expenses. What may or may not be taken into consideration in each of these categories is set forth in the Procedures addendum to the CJD.
Each court establishes its own processes by which the Motion to File Without Payment is reviewed. For instance, in the Denver and Adams County District Courts, all domestic relations Motions are sent to the courtroom of the presiding domestic judge. In Arapahoe County, the District Court Clerk's office is authorized to approve or disapprove the Motion. Denver District Court uses its own Order in place of the Finding and Order Concerning Payment of Fees. Attorneys should check with the appropriate court to ascertain the process followed by that court.
Copies of the CJD and the new form may be obtained from the Office of the State Court Administrator7 or from the local courthouse.
1. See, e.g., Walcott v. District Court, 924 P.2d 163, 167-168 (Colo. 1996); Cook v. District Court, 670 P.2d 758, 762 (Colo. 1983); Almarez v. Carpenter, 477 P.2d 792, 795-96 (Colo. 1970).
2. The term "in forma pauperis" describes permission given to a poor person (i.e., indigent) to proceed without liability for court fees or costs. Black's Law Dictionary 701 (5th ed. 1979). CRS § 13-16-103 does not use the term, but the phrase is commonly used to describe the petition for waiver of costs authorized by the statute.
3. See "Revised Chief Justice Directive 98-01," 27 The Colorado Lawyer 200 (Dec. 1998). The Directive addresses waiver of costs only in civil suits. Court costs in other matters may also be waived. For example, in juvenile proceedings in dependency and neglect, see "Chief Justice Directive 97-02," 26 The Colorado Lawyer 137 (Nov. 1997); for criminal proceedings, see "Chief Justice Directive 97-01," 26 The Colorado Lawyer 133 (Nov. 1997). A separate rule, CRS § 13-17.5-103, applies to criminal inmates filing civil actions.
4. The Directive, together with the accompanying "Procedure for the Waiver of Court Costs in Civil Cases on the Basis of Indigency," was published in The Colorado Lawyer. See note 3, supra.
5. Attorneys representing clients in divorce and custody cases should also be aware of CRS § 14-10-107(4)(a), which provides for service of process by publication of a consolidated notice. If a party is indigent, the statute specifically provides that the costs of publication will be paid by the court from funds appropriated for the purpose.
6. CRS § 13-16-124 (1998).
7. Office of the State Court Administrator, 1301 Pennsylvania St., Suite 300, Denver, CO 80203-2416; (303) 861-1111.
Legal Services News is published bimonthly to apprise members of the bar of legal services projects, issues, and pro bono opportunities. Readers are encouraged to submit articles and topic ideas for this department to Department Editor Eric B. Liebman, with the firm of Brega & Winters, 1700 Lincoln St., #1222, Denver, CO 80203, (303) 866-9400.
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