Rule 91.Proceedings for Waiver of Payment of Fees or Costs

Sixth, the words “official court reporter” were replaced with “court reporter” to cover appeals from Probate Court where private court reporters are used. See M.R. Prob. P. 91.

Advisory Committee’s Notes — August 1, 2009

The amendment makes several changes to Rule 91:

First, it removes the Latinism “In Forma Pauperis” from the Rule and makes other editing changes to make the Rule easier to read and understand.

Second, it adds a provision that the financial affidavit be kept confidential and separate from the case file. The affidavit could be viewed by any other party, but otherwise would be available only by court order.

Third, it adds provisions to clarify that motion fees, jury fees and other court filing fees that may be imposed during litigation may be waived.

Fourth, it requires that before service costs are ordered to be paid, the applicant demonstrate that low cost or no costs options for service have been attempted without success.

Fifth, it eliminates the reference in current subdivision (e) to waiver of costs for removal of cases from District Court, as the removal fee was eliminated at the time that identical filing fees were adopted for District Court and Superior Court actions.

Advisory Committee’s Notes — January 1, 2006

Practice and implementation of M.R. Civ. P. 91(f) has indicated the need for clarification regarding the court’s obligation to pay for a transcript once an appellant is found qualified for a waiver of costs pursuant to the rule. Some courts have taken the view that the reference to the term “record” in the rule refers to the clerk’s record as described in M.R. App. P. 6(b) or the 21-day record formerly addressed in M.R. Civ. P. 74A(a) (abrogated, December 31, 2001). This record included any transcripts in the file, but did not include transcripts that had to be prepared by court reporters or the electronic recording division. Other courts construed the term “record” to include transcripts of hearings that had to be prepared. At one point, funds were sought from the Legislature to pay the additional costs of transcripts for civil appeals that were not constitutionally required but were requested by individuals filing appeals who asserted they could not afford to pay for a transcript to support their appeal. Funds for that purpose were not appropriated.

This amendment to the rules clarifies that when the court finds an individual qualified for a waiver of costs for appeal, this finding does not also commit the court to pay for a transcript of any hearing for which a transcript has not been prepared. In addition, the amendments to the rule describe alternatives available in lieu of court payment for preparation of a transcript. When the hearing that is subject to the appeal was electronically recorded and the court finds that: (1) the appellant financially qualifies for a waiver of costs; (2) the appeal is brought in good faith and is not frivolous; and (3) all or a portion of the transcript of the hearing is necessary to support the appeal, then a copy of the recording of the hearing will be filed with the Law Court as part of the record in lieu of a paper transcript. Depending upon the available hearing recording equipment, the electronic recording may be by cassette tape, CD, or DVD. Parties may obtain copies of the recording themselves as presently provided under M.R. Civ. P. 76H(e) and Administrative Order JB-05-14.

In cases where the proceedings were recorded by an official court reporter, there is no capacity to get a copy of an electronic recording, as there is no official electronic recording of the proceedings. Because the court system does not have available funds to pay for transcripts in such circumstances, no transcripts can be provided. However, where the court finds that (1) an appellant is financially qualified for waiver of costs of appeal, and (2) the appeal is brought in good faith and is not frivolous, the parties are directed to prepare a statement in lieu of the record in accordance with M.R. App. P. 5(f) which shall then be presented to the Court in accordance with Rule 5(f) and, if approved, forwarded as the record in lieu of a transcript. A statement would have to be prepared and considered pursuant to M.R. App. P. 5(f) only if the available record was insufficient, because of a lack of a transcript, to present the issues for consideration on appeal.

These amendments leave unchanged the trial court’s authority under Rule 91(f) to enter such orders limiting the record on appeal, as it deems appropriate.

Advisory Committee’s Notes — May 1, 2000

The language of subdivisions (a) and (b) is revised to incorporate the presumption of in forma pauperis status for persons receiving poverty-based public assistance as set forth in the Administrative Order of March 1, 1995.

Advisory Committee’s Notes — June 2, 1997

Rule 91 (b) is amended to incorporate the more objective test for facial merit provided in subdivision (f) and to clarify that no different standard is intended in the determination to waive fees for initial filing or for appeals.

Advisory Committee’s Notes — March 1, 1994

Rule 91(f) is added to provide a procedure for the allowance of in forma pauperis appeals in both the District and Superior courts. The party seeking to appeal in forma pauperis is to file an application in the lower court containing the same information concerning financial status required by Rule 91(a) for leave to bring a civil action in forma pauperis. Thus, the application must be accompanied by an affidavit setting forth the party’s income and expenses, the absence of any other resources from which the costs of the appeal may be paid, and the party’s representation that the appeal is taken in good faith. The application is to be granted if the court from which the appeal is to be taken finds that the appellant is proceeding in good faith, that the appeal is not frivolous, and that the appellant lacks sufficient funds. The rule thus abandons the standard that the Law Court established in Melder v. Carreiro, 541 A.2d 1293 (Me. 1988), under which in all cases except those involving a “fundamental right” an appellant seeking to proceed in forma pauperis must establish a reasonable likelihood of success on the appeal. While this standard might have the effect of limiting appeals in certain areas where pro se representation is common, the Melder rule in effect allows the judge who has decided the case on the merits to determine the question of the likelihood that the decision will be overturned. The requirement in Rule 91(f) that the appeal not be frivolous, which is similar to the language of Rule 76(f) allowing the award of expenses against a party in a frivolous appeal in the Law Court, should be adequate to deter unwarranted in forma pauperis applications.

Once the appropriate finding has been made, the court may use a number of methods to limit the costs of the appeal. In the first instance, the court need only order “limiting” the record as a further means of reducing costs. This step might involve asking the appellant to identify the specific issues being appealed, providing only a partial transcript, using findings of fact to narrow the issues, or using the provisions of Rule 74(d) for limiting the record to an agreed statement of the parties. See also Rule 76F(d).

Advisory Committee’s Notes

Rule 91 is added to provide generally for in forma pauperis proceedings in civil actions under the rules. This extension of the right to proceed in forma pauperis formerly provided for divorce and separate support and custody actions under Rules 80(l) and 80G(h) is deemed necessary because of the substantial increase in filing fees made by the April 1, 1983, amendments to Rule 54A and D.C.C.R. 54A.

Rule 91(a) is taken from present Rule 80(l)(1), with the addition of language making clear that that rule also applies to motions requiring service under Rule 4. See, e.g., Rule 80(j).

Rules 91(b) and (c) are taken from present Rule 80(l)(2) and (3), with the addition of a requirement that the court find that the action is brought in good faith. This provision is necessary to prevent abuse of the rule and unnecessary resort to the reimbursement provisions set forth in Rule 91(d). To eliminate doubt as to the time of entry, subdivision (b) makes clear that the action is to be treated as entered as of the filing, subject to dismissal without prejudice if the application is denied. Under subdivision (c), an application for costs of serving the complaint must be filed with the complaint. Thus, all in forma pauperis actions must be commenced by filing rather than by service. See Rule 3.

Rule 91(d) is taken from Vermont Rule of Civil Procedure 80(l)(3). It provides for recovery of any disbursements for entry or service against a non- indigent opponent if the plaintiff or moving party prevails. The court should assess the opponent’s financial status in the same manner as an applicant’s status is assessed upon granting leave to proceed in forma pauperis. The rule also provides for reimbursement by the plaintiff or moving party of any fees or costs waived or paid if his financial condition changes during the pendency of the action. Again, the court should apply the same standard in determining financial ability. The rule makes clear that the court Administrator may recover for the court all sums for which any party becomes liable under its provisions.