Change to In Forma Pauperis

September 30, 2014 § Leave a comment

MRCP 3(c) is the rule that governs the filings of actions by persons who, due to poverty, are unable to afford to pay filing fees.

Until last Thursday, the rule read this way:

(c) Proceeding in forma pauperis. — If a pauper’s affidavit is filed in the action the costs deposit and security for costs may be waived. The court may, however, on the motion of any party, on the motion of the clerk of the court, or on its own initiative, examine the affiant as to the facts and circumstances of his pauperism.

Last Thursday (September 25, 2014), the MSSC, on its own motion, replaced the above language with this:

(c) A party may proceed in forma pauperis in accordance with sections 11-53-17 and 11-53-19 of the Mississippi Code Annotated.  The court may, however, on the motion of any party, on the motion of the clerk of the court, or on its own initiative, examine the affiant as to the facts and circumstances of his pauperism.

MCA 11-53-17 provides as follows:

A citizen may commence any civil action, or answer a rule for security for costs in any court without being required to prepay fees or give security for costs, before or after commencing suit, by taking and subscribing the following affidavit:

“I, _____________, do solemnly swear that I am a citizen of the State of Mississippi, and because of my poverty I am not able to pay the costs or give security for the same in the civil action (describing it) which I am about to commence (or have begun, as the case may be) and that, to the best of my belief, I am entitled to redress which I seek by such suit.”

MCA 11-53-19, reads this way:

The court may dismiss an action commenced or continued on affidavit of poverty, if satisfied that the allegation of poverty was untrue.

It’s not a major substantive change, for sure, and it will not affect most of you in your practice, but it is a change to bear in mind for the occasional case where the client is unable to afford to pay the filing fee.

One thing that caught my attention was the court’s deference to the legislative act. Is it just my imagination, or has the high court been trending slightly in that direction? I haven’t had time to go digging back to verify, but it seems that way to me. If so, it’s somewhat significant because when the MSSC originally adopted the MRCP, it signaled a power struggle between the judicial and legislative branches that had repercussions throughout Mississippi government. The court’s order on May 26, 1981, clearly sent the message that the courts, and the courts alone, would determine their rules of procedure.

Another thing that strikes me is some of the archaic language of Section 15. The phrase ” … answer a rule for security for costs …” invokes procedure that we have not seen in our courts since the MRCP went into effect 32 years ago. We have not had a rule (nisi) since the MRCP. Also, the idea of security for costs harks back to old procedure under which costs were incurred document-by-document-filing as the litigation proceeded, and lengthy litigation could result in substantial costs, as opposed to the current procedure of one-price litigation. Thus, another party, or the clerk, seeing costs mounting, could ask the court for a “rule” to put up some security in the event that the party was unsuccessful in his or her quest.

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