Rule 3.1.Waiver of the filing fee and service costs

Reporter’s Notes—2022 Amendment: Rule 3.1(b)(2) is amended by substituting “the applicant’s” for “household” to achieve internal consistency of usage throughout Rule 3.1 and to provide clear and consistent guidance to the Court Administrator in the development of forms to implement the rule. The party seeking waiver of fees and payment of costs is denoted “the applicant” everywhere else in the rule. See Rule 3.1(a), (b), (b)(1), (4), (c). The retention of “household” to describe income to be counted in paragraph (b)(2) when the rule was generally amended in 2020 was inconsistent with the general purpose of the 2020 amendments and created a confusing ambiguity in the application of the rule. See Reporter’s Notes to 2020 amendments.

Reporter’s Notes—2020 Amendment: Rule 3.1 is amended to eliminate ambiguous, inconsistent, or obsolete language, including the time-honored but unspecific label “in forma pauperis,” and to simplify the process. Simultaneous conforming amendments are being made to V.R.A.P. 24 and V.R.P.P. 3.1. The inclusion of the income of the applicant’s “cohabiting family members” in determining the applicant’s income is eliminated from both subdivisions (a) and (b). The phrase is ambiguous and overbroad. In the calculation of the applicant’s need for a waiver, it is not appropriate to consider the income of someone who may have no obligation to support the applicant or no stake in the outcome of the litigation. To the extent that paragraph (b)(2), covering an applicant who is not an aid recipient, requires consideration of more than the applicant’s resources, “household income” is a more specific phrase. The language in paragraph (b)(1) limiting qualifying public assistance to that constituting “a major portion of subsistence” has been eliminated because of its breadth and ambiguity and the burden of calculation that it imposes on the clerk or designee. Because the first sentence of Rule 3.1(b) makes clear that the waiver eligibility determination is made by the clerk or designee, the remainder of the subdivision is simplified and made uniform in style, by eliminating the reference to the clerk or designee from paragraph (2) and combining that paragraph with former paragraph (3). Former paragraphs (4) and (5) are renumbered (3) and (4). Rule 3.1(d) is amended to require the clerk to give notice to the applicant of the right to appeal the denial of an application provided by amended Rule 3.1(b)(4).

Reporter’s Notes—2006 Amendment: Rules 3.1(a) and (b)(1) are amended to clarify the original intent of the rule and its 1996 amendment as evidenced by prior practice. The amendment to Rule 3.1(a) makes clear that the affidavit filed with the application for leave to proceed in forma pauperis must set forth all income from public and other sources not only of the person applying but of any family member cohabiting with that person. The amendment to Rule 3.1(b)(1) makes clear that the clerk or designee is to consider all public assistance or other income of cohabiting family members in determining the ability of the applicant to pay the filing fee or costs. The phrase “cohabiting family members” is taken from 13 V.S.A. § 5238(b) and Administrative Order No. 4, § 5(d), which require inclusion of the income of “cohabiting family members” in calculating whether a co-payment or reimbursement for the cost of public defender services is necessary. “Family member” is not defined in the statute or administrative order, or by judicial interpretation of either. The updated U.S. Department of Health and Human Services poverty income guidelines, incorporated in A.O. No. 4 as Appendix B, set the poverty line according to family size, but do not define “family” because of the variations among the different programs that use the guidelines. DHHS, “Annual Update of Poverty Guidelines,” January 24, 2006, 71 Fed. Reg. 3848-01, at 3849, 2006 WL 160155 (F.R.). In Embree v. Balfanz, 174 Vt. 560, 817 A.2d 6 (2002) (mem.), the Court held that brothers-in- law were not “family members” within the meaning of the abuse prevention statute, 15 V.S.A. § 1103(a). In the absence of a statutory definition of the term, the Court looked to its “plain and commonly accepted meaning,” 174 Vt. at 561, 817 A.2d at 8, which was defined in Black’s Law Dictionary 620 (7th ed. 1999) as “[a] group consisting of parents and their children” or “[a] group of persons connected by blood, by affinity [i.e., blood relations of a spouse], or by law.” The legislative history of § 1103(a) did not suggest a contrary intention on the Legislature’s part. Given the purpose of amended Rule 3.1 to assess the real resources available to an applicant for in forma pauperis status, the courts should interpret “cohabiting family members” broadly to include persons living with the applicant and related to her or him by blood, marriage or civil union, adoption, affinity, or other legal status. Cf. State v. Morgan, 173 Vt. 533, 789 A.2d 928 (2001) (mem.) (mother, stepfather, grandparents, uncle, treated, without discussion, as “cohabiting family members” under 13 V.S.A. § 5238(b) and A.O. No. 4, § 5(d)).

Reporter’s Notes—1999 Amendment: Rule 3.1(b), as amended in an emergency amendment adopted effective March 21, 1996, is permanently adopted with revisions reflecting comments received on the emergency promulgation. A simultaneous amendment is made to V.R.A.P. 24(a). The emergency amendment to Rule 3.1(b) contained what was in effect an irrebuttable presumption that an individual not on welfare whose income exceeded the federal poverty guidelines had the means to pay filing and service costs. In most other jurisdictions, the standard is either a more general inability to pay or is a percentage higher than 100% of poverty. The only other basis for waiver in the emergency amendment was receipt of specified welfare benefits. Given current welfare reform measures, this provision eliminated many applicants for whom fees and costs might be an insurmountable burden. The present amendment addresses these concerns by adapting provisions of Vermont Probate Rule 3 that describe welfare programs in general terms and create a realistic formulation of an inability-to-pay standard. The amendment also raises the alternative standard to 150% of poverty and eliminates the sliding scale for those at that income level.

Reporter’s Notes—1996 Emergency Amendment: Rule 3.1(b) is amended to implement 32 V.S.A. § 1431(g), as amended by Act No. 77 of 1995 (Adj. Sess.), § 1, effective March 21, 1996. The amended statute requires that “The clerk of the court or the clerk’s designee shall establish the in forma pauperis fee [under V.R.C.P. 3.1, V.R.A.P. 24(a), or D.C.C.R. 3.1] in accordance with procedures and guidelines established by administrative order of the Supreme Court.” The Court has elected to adopt the appropriate procedures and guidelines by emergency amendment to Rule 3.1, rather than by administrative order. Related amendments are being made in V.R.A.P. 24(a) and V.R.F.P. 4 and 9. (D.C.C.R. 3.1 incorporates V.R.C.P. 3.1 by reference.) Under paragraph (1) of the amended rule, if the clerk or the clerk’s designee finds from the application and supporting affidavit that the applicant for in forma pauperis status is an ANFC/SSI recipient or has income at or below the poverty level as currently defined in applicable federal regulations, filing fees and service costs are fully waived. If the applicant is not an ANFC/SSI recipient and has income at or below 150% of the federal poverty level, Rule 3.1(b)(2) provides a sliding scale to be administered by the clerk under which the applicant must pay half the service costs and an appropriate portion of the filing fee. In either case, under Rule 3.1(b)(3), the clerk is to determine the method of service and cause service to be made accordingly. Since any service cost not paid by the applicant must be paid out of court funds, the clerk should encourage the least expensive method consistent with effective assertion of jurisdiction over the defendant. In the interests of fairness, Rule 3.1(b)(4) permits the applicant to obtain judicial review of a denial of in forma pauperis status.

Reporter’s Notes—1988 Amendment: Rule 3.1(d) is added to set forth the procedure applicable when a motion to proceed in forma pauperis has been denied. After entering the denial pursuant to Rule 79(a), the clerk must immediately notify in writing the moving party, and any other party who has entered an appearance in accordance with Rule 5. The notice must be accompanied by a warning that the entry fee must be paid within thirty days or the action will be subject to dismissal. The rule provides that a motion to dismiss may be made by any party, or the court may dismiss the action without any motion. The rule is patterned after V.R.A.P. 3(b), which states that only the failure to file a timely notice of appeal affects the validity of an appeal. Failure to pay the entry fee is not a defect in jurisdiction. It may, however, cause the appeal to be dismissed if not remedied. The Supreme Court has, implicitly, applied this reasoning to motions to proceed in forma pauperis at the trial court level. In Meyer v. Meyer, 148 Vt. 65, 528 A.2d 749 (1987), the Court held that an action is “commenced” at the time the complaint is filed even though no filing fee is tendered and a motion to proceed in forma pauperis is not granted until several weeks later. In Meyer the Court did not have to address when an action would be deemed commenced where the motion to proceed in forma pauperis eventually is denied, and then an entry fee is paid. If the logic of Appellate Rule 3 is followed, the date of commencement would remain the date the complaint was filed.

Reporter’s Notes: This rule is added to provide a procedure for proceeding in forma pauperis in any civil matter. Previously the rules had provided for proceeding in forma pauperis only in matters arising under Rule 80. See Reporter’s Notes, 1987 Amendment, Rule 80(l). The new rule utilizes procedures and standards similar to those which have been utilized under Rule 80(l). The applicant must complete an application form and financial affidavit supplied by the court administrator. The affidavit required differs from that required under former Rule 80(l) in that it calls for listing the monthly expenses incurred for the support of all persons who are dependent upon the applicant. The former rule limited the listing to the expenses of persons who were legally dependent upon the applicant. Thus, under the current rule the expenses of persons who are factually but not legally dependent are relevant to determining whether the applicant qualifies. Elderly parents, for example, may be factually but not legally dependent upon an applicant. If the applicant receives only Aid to Needy Families with Children or Supplemental Security Income, or if the court finds that the applicant is unable to pay the filing fee or costs of service, the application will be granted. The clerk of the court then will accept a complaint without payment of the filing fee, and will order service. The applicant also must complete and file an agreement to reimburse costs should his or her financial circumstances improve during the pendency of the action. The filing fee and costs of service are treated as costs taxable in favor of the state against the party opposing the applicant. If the applicant prevails on the merits and the other party has the ability to pay, that party will reimburse the state.