Pro Bono Attorneys Deskbook
Who Will Pay the Costs?
In Forma Pauperis
Likely your pro
bono client will not have the means for pay court costs and fees.
This inability should not keep your client from accessing the justice
In Forma Pauperis
Proceedings in State Courts
The right of an
individual to have access to our court system, regardless of income
level, was well-established in Missouri before it joined the union and
became a state. In fact, an in forma pauperis statute was
one of Missouri's first enacted laws after admittance to the union. This
right was further guaranteed in Article 1, § 14 of the Missouri
Constitution, where it has remained unchanged. Over the years, the
Missouri legislature has tried to address the practical realities of
giving the poor access to the courts. Their current response is found in
§ 514.040. Christine E. Rollins, “Statutory Assistance for Attorneys
Providing Pro Bono Services”, 60 Mo Bar Journal, May-June 2004, p 112
reference is made to the above cited article by Christine E. Rollins.
It is an excellent discussion of the in forma pauperis
procedure. You may wish to read the
514.040, RSMo sets forth the in forma pauperis procedure. Also
see Civil Rule
An OSCA (Office of
State Courts Administration) approved
Motion and Affidavit in Support of Request to Proceed as a Poor Person
is in this deskbook forms library.
The OSCA form does
not include sheriff’s service costs or publication costs. These costs
should be specifically mentioned in the application, if appropriate to
your client’s case.
How does the
514.040(1) establishes a procedure for a client is to file a motion to
proceed in forma pauperis. In most cases, the courts will act
within their discretion and rule on the motion without requiring a
hearing. On the rare occasion that a court wishes to hold an evidentiary
hearing, it is a two-stage process. Initially, the hearing is set to
determine petitioner's status as an indigent. The court may
require an affidavit from the petitioner setting out particulars of his
or her current financial condition. The court may require affidavits
from others or "adopt some similar procedure to discover plaintiff's
true financial [state]." After the client is deemed "poor," the court
examines the "petition to see if it is patently and irreparably
frivolous or malicious on its face so that, as pleaded, [movant] could
prove no set of facts entitling him to relief." If the court deems the
action to be frivolous or malicious, petitioner is not allowed to
proceed. Rollins, id [footnotes omitted].
What costs are
included if in forma pauperis status is granted?
personal service attempts, service by publication related costs, and
transcripts and legal files requested to pursue appeals on behalf of
indigent clients are now specifically enumerated as falling within the
meaning of § 514.040, RSMo.
Once the client
has been determined to be indigent, the statute allows for the person to
have "all necessary process and proceedings as in other cases, without
fees, tax or charge as the court determines the person cannot pay."
Since the inception of the statute, the courts have struggled to
define "necessary process and proceedings." The legislature did not
enumerate specific items or give guidance as to what would fall within
the scope of that term. However, Missouri law does require that "words
and phrases [of statutes] be taken in their plain or ordinary and usual
sense." Therefore, the courts have found that filing fees should be
waived for those determined to be indigent.
Filing the motion
to proceed in forma pauperis may seem more trouble than it is
worth to get a filing fee waived. Although these fees, and others, may
seem nominal to most of us in the legal community, even these minimal
amounts in many cases keep clients from pursuing actions pro se
or contacting an attorney. If a client does request our services, and we
are inclined to assist them, filing this motion will allow us to file
their case free of charge. The waiving of this nominal fee, in and of
itself, may open the doors of justice to additional members of our
The courts have
also found that the costs of service are "necessary process and
proceedings" that must be waived for poor people. Law enforcement, once
presented with notice from the court that the petitioner can proceed
in forma pauperis, are bound to try and attempt personal service on
the opposing party without payment of a fee. This holds true for all
county sheriff's departments throughout the state of Missouri. It has
been my experience that even some out-of-state service requests will be
honored free of charge, depending upon the department; however, they
have no obligation to do so.
service cannot be perfected, the next step, in most cases, is service by
publication. The court of appeals, in State ex rel. Taylor v. Clymer,
was faced with the question as to whether service by publication fell
within the "necessary process and proceedings" meaning of § 514.040.
"Respondents contend[ed] that relators [had] received complete access to
the court because they [had] been allowed to file their actions as poor
persons" and did not have to pay the filing fees. In addition,
respondents argued that "the State [was] not further obligated to expand
relators' rights by affording them services of process by publication
without cost." The court disagreed. The court determined that "service
accomplishes the fact of jurisdiction and not the filing" of the
petition. The court held that service was within the meaning of the
necessary process and proceedings language of § 514.040. Since service
by publication was required to continue with the cause of action, the
court held that "the order of publication should be issued without cost
to relators under the mandate of our statutes and the policy of this
State to provide indigents free access to our courts."
In a more recent
case, State ex rel. Holterman v. Patterson, the court of appeals
was asked to rule on whether guardian ad litem fees fell within §
514.040. Relator was required to pay one-third of a $1,000 guardian
ad litem fee. Relator argued that she should not be required to pay
the fee under § 514.040 because she was indigent and could not pay costs
and fees "related to the prosecution of the suit." Relator had filed a
motion with the trial court to join the county as a third party and
order fees paid out of public funds. The court reasoned that since it
had been determined that relator was "unable to pay the costs, fees and
expenses necessary to prosecute or defend the action," § 514.040 leaves
no discretion for the trial judge to assess the guardian ad litem
fee against relator. The county was required to pay the fees assessed
In two recent
decisions, the Court of Appeals, Eastern District has identified
additional items covered by § 514.040. First, pursuant to a writ of
mandamus, State ex rel. Wecker v. Ohmer, May 6, 2003 (Wecker I),
the court considered whether relator was entitled "to obtain a
transcript of her termination of parental rights trial." Relator filed a
timely appeal and a "certificate of . . . inability to pay cost, fees
and expenses" indicating that she was proceeding as a poor person. In
addition, she filed a request for the transcript in the trial court.
Respondent denied her request for a trial transcript. Respondent argued
that since relator had been represented by private counsel during the
trial, she was not allowed to request the trial transcript as a poor
person. The court was unpersuaded by this argument, since the trial
attorney filed an affidavit with the court stating that he represented
relator on a pro bono basis. The court found that "Section
514.040.3 specifically allows for 'private counsel working on behalf of
or under the auspices of [a legal aid] society.'" The court ordered the
production of the trial transcript, noting that Missouri statutes
provided for court costs in termination of parental rights cases in §
211.462.4: "Court costs shall be paid by the county in which the
proceeding is instituted, except that the court may require the agency
or person having received legal or actual custody to pay the costs."
On June 10, 2003,
the Eastern District issued a second opinion in the matter, Wecker II,
stating that for the same reasons used in Wecker I, the relator
should not be required to pay to have the legal file prepared in order
to pursue her appeal. Respondent had argued that the state was not
required to pay for preparation of the legal file. The court found that
preparation of the legal file fell within the meaning of § 514.040.
Respondent was directed to enter all orders necessary to prepare and
release the legal file to relator.
fees, in personal service attempts, service by publication related
costs, and transcripts and legal files requested to pursue appeals on
behalf of indigent clients are now specifically enumerated as falling
within the meaning of § 514.040, this most likely is not an inclusive
list. Consistently, the appellate courts are finding that if the
requested item is something that a litigant is required by law to file,
proceed in the prosecution of, or defend a suit against, payment will
not be required if a party is deemed to be indigent. Rollins, id.
[footnotes omitted, emphasis supplied]
A special statute
514.040.3, RSMo gives
Legal Services authority to determine poverty status. Once that
certification is granted by Legal Services, the court must approve
payment of all costs. State of Missouri ex rel. Tressa Holterman,
relator, v. Hon. Timothy J. Patterson, resp., No. ED78148, 24 S.W.3d
784 (Mo. App. 2000).
The most recent
amendment to § 514.040 became effective on August 28, 1999, when
subsection 3 was added. It allows for a legal aid society, a legal
services or other non-profit organization, which has as its primary
purpose to provide legal services to indigent persons, to certify that a
client is indigent within the meaning of the statute. The certificate
issued by the non-profit agency certifies to the court that the party
has been determined by the agency's standards to be "unable to pay the
costs, fees and expenses necessary to prosecute or defend the action."
The appellate courts have determined that once a party has been
certified by one of these agencies, trial courts have no discretion in
the matter and must accept the person as "poor." Private counsel, who
work on behalf of or under the auspices of such non-profits, would be
allowed to utilize the certificate that the non-profit provides on
behalf of their clients. Therefore, if attorneys contact and volunteer
to take cases from their local legal services offices, they obtain all
the benefits under § 514.040 without having to work through the
evidentiary hearing otherwise required. Rollins, id. [footnotes omitted]
discussion focuses on in forma pauperis proceedings in state
trial courts in civil matters since that is the most frequent forum for
pro bono matters. Similar procedures are available in adult
abuse cases (see Section 455.025, RSMo), state court appeals (Rule 81.04).
In Forma Pauperis Proceedings in Federal Courts
In forma pauperis
proceedings are authorized in federal courts by 28 U.S.C. § 1915. The
two-step process requires first a determination of whether the plaintiff
qualifies by economic status and second a determination of whether the
cause of action is frivolous or malicious. Martin-Trigona v. Stewart,
691 F.2d 856 (8th Cir. 1982).
The statute divides civil plaintiffs into two categories, those
who are prisoners and those who are not. For those parties who are
prisoners obtaining in forma pauperis certification is somewhat more
complicated. The law requires payment of installments from the
prisoner's inmate trust fund account. The statute also may disqualify
those from in forma pauperis consideration if they have filed three
prior frivolous lawsuits. 28 U.S.C. § 1915(g). This
discussion will focus on those parties who are not prisoners. If the
party is a prisoner it is suggested that 28 U.S.C. § 1915 and the
district court local rules be reviewed carefully to determine all of the
requirements for obtaining in forma pauperis status.
For non-prisoner parties the process to initiate an in forma
pauperis authorization is similar to that in state court. Most district
courts require the filing of a motion or application, affidavit of the
party, and the proposed complaint to be filed in the case. The
affidavit of the party should include all assets and income available to
the party and establish that the individual is unable to pay for fees in
the action. The affidavit should also state the nature of the action,
defense, or appeal that the party is seeking to redress. 28 U.S.C. §
The local U.S. District Court rules should be consulted before
filing an in forma pauperis action. Eastern District Rule 3-2.05
requires that the party file an application accompanied by an affidavit
form provided by the court. The
required form is available from the Eastern District web site.
The rule also requires any person granted in forma pauperis status to
promptly notify the court in writing of changes in their financial
status. Western District Rule 83.7 also requires a party to file, along
with the application and complaint, an affidavit on a form provided by
the court (or other affidavit providing similar information).
is also available from the Western District web site.The Western District Rule also allows the court to require payment
of a partial filing fee or installment payments, Rule 83.7(a)(4). If
the court orders that a full or partial filing fee is required the
party is granted 30 days to comply or the case can be dismissed. Rule
83.7(a)(6) also allows for the court to review the in forma pauperis
status from time to time and require a party to make payment of a fee if
the party becomes capable of paying.
As noted above, it is important for the in forma pauperis applicant
to make a complete disclosure of all assets, income, and any other facts
relevant to the applicant's financial status and ability to pay. If
the court later determines that full information was not provided, the
court has the authority not only to rescind the in forma pauperis
status, but to also dismiss the case with prejudice. 28 U.S.C. §
1915(e)(2); Romesburg v. Trickey, 908 F.2d 258 (8th
If in forma pauperis status is granted, “the officers of the court
shall issue and serve all process, and perform all duties in such
cases. Witnesses shall attend as in other cases, and the same remedies
shall be available as are provided for by law in other cases.” 28 U.S.C.
§ 1915(d). In addition, the statute allows the court to require a
record on appeal or transcript of proceedings to be prepared at no
expense to the party. 28 U.S.C. § 1915(c). Other expenses are
generally not covered by in forma pauperis status. Manning v. Tefft,
839 F. Supp. 126 (D. R.I. 1994)(Transportation expenses denied.);
Wright v. U.S., 948 F. Supp. 61 (M.D. Fla. 1996)(Deposition costs
denied.); Pedraza v. Jones, 71 F.3d 194 (5th Cir.
1995)(Expert witness costs denied.); Malik v. Lavalley, 994 F.2d
90 (2d Cir. 1993)(Witness fees denied.). In United States Marshals
Service v. Means, 741 F.2d 1053 (8th Cir. 1984) the court
held that § 1915(d) did not allow for the payment of witness fees to
compel the attendance of witnesses. However, after construing a number
of federal statutes and rules, the court found discretionary authority
to require the Marshals Service to pay witness fees when the United
States is an opposing party to the action.
Smith, Legal Aid of Western Missouri, Kansas City, MO for the above
discussion of federal in forma pauperis procedure.
appropriate forms for proceedings in forma pauperis in federal
appeals courts and
bankruptcy proceedings click the underscored key word.
How is poverty
Probably the most frequently used benchmark for measuring personal
poverty is the guidelines annually published by the
U.S. Department of Health and Human Services.
Click here for a chart showing based on the HHS guidelines showing
poverty level by household size by year and month from 100% to 200% of
Each agency will
apply the HHS guidelines in their own way. Legal Services eligibility
is based on 125% of poverty. Samaritan Center Legal Care uses 150% of
poverty as a threshold for eligibility.