PHILADELPHIA BAR ASSOCIATION RESOLUTION REGARDING PROPOSED RULE CHANGES WITH RESPECT TO ACCESS TO THE COURTS IN FORMA PAUPERIS FOR INDIVIDUALS WHO CANNOT AFFORD THE COSTS OF LITIGATION
WHEREAS, the Philadelphia Bar Association has a long-standing commitment to fairness and equity in matters of access to the courts and ensuring that outcomes in Pennsylvania’s legal system do not depend on an individual’s financial means;
WHEREAS, the right of individuals to access the courts, even if they cannot afford the costs thereof, by proceeding in forma pauperis is a fundamental right grounded in Article I, Section 11 of the Pennsylvania Constitution and the common law, which ensures that an impoverished person “still has the right to prosecute his suit free from costs,” because “no person should have right and justice denied or delayed by reason of poverty”;1
WHEREAS, existing procedural rules promulgated by the Supreme Court of Pennsylvania set a firm foundation that should not be eroded, but can be further improved to carry out the “maxim that the poor must have the ability to access the courts of justice”;2
WHEREAS, the Supreme Court of Pennsylvania’s Civil Procedural Rules Committee has submitted for public comment a new Proposed Rule of Judicial Administration to govern in forma pauperis applications;3
WHEREAS, the Proposed Rule would establish certain uniform standards for eligibility, thus partially addressing one of the major defects in the existing rules;
WHEREAS, the Proposed Rule also contains certain problematic provisions, e.g., unnecessary documentation and hearing requirements, and the elimination of the ability of legal aid attorneys to obtain in forma pauperis status for their clients by merely filing a praecipe, and fails to address certain important issues;
NOW, THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association strongly supports the Proposed Rule insofar as it establishes an automatic right to proceed in forma pauperis for individuals who have an income below 200% of the Federal Poverty Guidelines with assets (other than a home and one vehicle) less than $10,000, receive means-based public assistance, or are receiving free legal services;
BE IT FURTHER RESOLVED, that the Philadelphia Bar Association strongly supports the Proposed Rule insofar as it would replace the designation “In Forma Pauperis,” which is archaic and demeaning, with contemporary and less offensive language;
BE IT FURTHER RESOLVED, that the Philadelphia Bar Association urges the Committee to amend the Proposed Rule as follows:
- Scope of the waiver. Clarifying the scope of the Proposed Rule, which as drafted, indicates that fee waivers granted under the Rule apply only to fees incurred in “commencing” an action, proceeding or appeal. The language should make clear that, in conformity with traditional practice, any waiver applies to all costs potentially payable during the litigation (including, e.g., fees required for filing an answer, motion fees, security for an injunction, transcript fees, and all other fees) to the court, filing office, or public officer or employee, or a contractor thereof;
- Procedure when legal services are provided pro bono. Restoring the simplified procedure established by existing Pa.R.C.P. 240, which allows attorneys (including legal aid attorneys) who provide free legal services to indigent clients to obtain in forma pauperis status for their clients by filing a praecipe. The Proposed Rule eliminates the praecipe for legal aid attorneys, and requires that all litigants who are being represented for free, but who receive means-based public assistance, complete the IFP form and provide documentation. This unnecessary requirement will undo the practice codified in Pa.R.C.P. 240, essentially reverting the rule to its pre-2001 status (see 31 Pa.B. 3305) and will place an unnecessary burden on courts and on the scarce resources of legal aid attorneys;
- Ensuring that in forma pauperis status remains after counsel withdraws. In cases where in forma pauperis status has been granted upon the application of counsel providing free legal services, such status should remain in effect even if counsel withdraws, unless the court has reason to believe the person’s financial circumstances have changed.
- Documentation in cases of automatic eligibility under Rule 1990(b)(1). Removing the requirement that individuals who are automatically eligible, under this subsection of the Rule, must not only provide a sworn statement concerning their resources, but also provide documentation to support their statements. This documentation requirement will mean that many applicants will be turned away and told to return only after they have identified the government office(s) from which they receive benefits and obtained paperwork from that office. This provision places an unnecessary and potentially insurmountable burden on the applicant, and is especially problematic in that “documentation” of many public benefits is now available, if at all, only in electronic form rather than hard copy. The applicant’s sworn statement, made under penalty of perjury, should suffice, unless the court, on review of the application, determines that there is a reason to hold a hearing on the matter;
- Documentation and hearings in cases of “substantial financial hardship” under Rule 1990(b)(2). For the same reasons, limiting the requirement for documentation to cases in which the court determines that documentation is required; and, instead of requiring a hearing in all such cases, requiring a hearing only prior to denying an application or in cases in which the court determines that a hearing is needed;
- Standard for determining the existence of “substantial financial hardship” under rule 1990(b)(2). Modifying the Proposed Rule to include a standard for decisions in such cases. The standard should be that set forth in case law, which establishes that individuals who cannot meet their basic life needs (at a minimum, housing, food, medical care, transportation, and dependent care) are entitled to proceed in forma pauperis. 4 This standard should be adopted with the clear explanation that only the financial resources of the party, not friends or family, are relevant to such a determination. Such a standard will ensure uniform, statewide application and will directly address Justice Wecht’s criticism that Pa.R.C.P. 240 lacks a codified standard necessary for adequate appellate review;
- Expand the scope of the rule to include all costs that impair access to justice. Expanding the scope of the Proposed Rule to cover not only costs in traditional civil cases, but also other proceedings, such as Orphan’s Court/Register of Wills matters and criminal cases, in which filing costs and other imposed fees impair access to justice. This expanded scope is appropriate because the proposed Rule will be a new Rule of Judicial Administration applicable to a broader range of proceedings. As such, the Rule should cover fees required to probate a will, for example, or on the criminal side to file motions, seek post-conviction relief, initiate appeals from summary convictions, or petition for expungements or writs of habeas corpus. Similarly, the proposed Rule should cover fees that impair equal access such as expungements, Clean Slate and fees to obtain copies of records necessary to apply for or obtain pardons. Without an in forma pauperis rule covering these items, individuals who cannot pay are unable to probate wills or seek relief from the burdens of a criminal conviction, while individuals with funds can do so easily. The proposed Rule should embrace the fundamental right to proceed in forma pauperis in all types of civil and criminal cases in order to provide statewide uniformity and ensure that all individuals have an accessible and simplified procedural means to exercise their right of access to the courts when they cannot afford to pay;
- Comprehensibility of the application form. Revising the application form to make it shorter and more comprehensible to applicants, who will typically be completing it without legal assistance. This includes simplifying the organization and sequencing of the questions, eliminating possible areas of confusion (e.g., the phrase “Supplemental Security Income (Not Social Security)” should be “Supplemental Security Income (SSI)”), and ensuring that the language will be clear to people at lower reading levels (e.g., avoiding terms such as “praecipe” and “substantial financial hardship”) by consulting with a communications specialist and members of the public when finalizing the form;
- Payment plans. Eliminating the provision at Rule 1990(b)(2)(ii)(B), which applies to applicants who are granted only a partial waiver of costs, and allows the court to place such individuals on payment plans. This option will create an administrative morass, and also lacks any explanation of how to determine the amount a person should pay each month, who will collect the money, the penalties for nonpayment, such as whether the case will be dismissed or the individual held in contempt and incarcerated, and whether a person could potentially spend years or decades repaying the court under threat of punishment for nonpayment, thus only further increasing burdens on impoverished individuals;
- Repayment in the event of a money judgment. Eliminating the inequitable requirement that a person proceeding in forma pauperis who later obtains a money judgment must repay the costs of litigation. Costs are ordinarily taxed against the losing party; this provision creates an exception to that principle for indigent persons only, in that they, unlike wealthier individuals, must pay costs even if they win;
- Title of the rule. Removing the archaic and demeaning phrase “In Forma Pauperis,” which now appears in parentheses in the proposed title of the rule and form application; and titling the rule and application “Request to Proceed Without Charge” or “Request to Proceed for Free.” These terms are likelier to be understood than the proposed title, “Application to Waive Fees and Costs (In Forma Pauperis).” A comment to the rule should make clear that this change in title is not intended to be a substantive change and that existing in forma pauperis case law remains in effect;
- Public information about the right to proceed in forma pauperis. Requiring that all court filing offices publicly post information about the procedure in plain and accessible language, to ensure that court staff and the public are aware of the option to seek leave to proceed without charge.
BE IT FURTHER RESOLVED, that the Philadelphia Bar Association urges the members of the Pennsylvania Civil Procedural Rules Committee, in coordination with the other Procedural Rules Committees, and the Honorable Justices of the Supreme Court of Pennsylvania to adopt the proposed rules changes as amended consistent with this resolution; and
BE IT FURTHER RESOLVED, that the Chancellor and/or the Chancellor’s designee(s) shall communicate the Philadelphia Bar Association’s position on the proposed rules or any revised or similar proposal to the Supreme Court of Pennsylvania, the members of the Pennsylvania Civil Procedural Rules Committee, in coordination with the other Procedural Rules Committees, the legal profession, the media, and the public, and to take such other action as necessary to effectuate this resolution.
PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: September 24, 2020
1 Thompson v. Garden Court, 419 A.2d 1238, 1240 (Pa. Super. Ct. 1980)
2 Shore v. Dep’t of Corrections, 179 A.3d 441, 441 (Pa. 2018) (Wecht, J., concurring).
4 “IFP status must be considered in light of the necessities of life, and cannot be denied because the individual has some extravagant expense . . . or net worth,” Shore v. Dep’t of Corrections, 179 A.3d 441, 441 (Pa. 2018) (Wecht, J., concurring), and “if the individual can afford to pay court costs only by sacrificing some of the items and services which are necessary for his day-to-day existence, he may not be forced to prepay costs in order to gain access to the courts, despite the fact that he may have some ‘excess’ income or unencumbered assets,” Stein Enterprises, Inc. v. Golla, 426 A.2d 1129, 1132 (Pa. 1981).