News

Paupers Affidavit

  • 8/26/2014
  • Janet Roloff
  • The Oklahoma Bar Journal

Janet RoloffHere is food  for thought: A grandmother who  works full time for minimum wage and wants  to take care of her grandchildren while  both parents are in prison  must  pay  the court clerk an amount equal  to a car payment to access the court  for a guardianship.  A widow on social security who wants to stop the foreclosure of her home after a voidable judgment must pay the court a sum equal to her grocery allotment for the month to file a motion to vacate the judgment. A homeless mother of three toddlers who wants to divorce an absentee father must pay the court more money than she has seen at one time in years to ask the court for a divorce.  All of these people are faced with a financial impossibility.

Most people who will ever read this article arc genetically and situationally protected from ever personally being affected by its topic. We were born into lives where we eventually, sometimes through hardship but more often not, made it through high school, college and law school.  You readers are the ones who make access to the courts available to all people in Oklahoma. You write the laws and interpret them. You make the motions and you grant them. It is like playing God.

For every occasion there is a remedy.  We lawyers were trained to believe that. In the case of people who can't afford the large fees the slate of Oklahoma placed on entry to the court system, there is a remedial statute. Title 28 O.S. §152, which sets the flat fee schedule for court filings, includes in Subsection F: 

In any case in which  a litigant claims  to have a just cause of action  and  that, by reason  of poverty, the litigant  is unable  to pay the fees and costs provided for in this section  and is financially unable  to employ counsel,  upon the filing of an affidavit in forma  pauperis executed  before any officer authorized by law to administer oaths to that effect and  upon  satisfactory showing to the court  that the litigant has no means and  is, therefore, unable  to pay the applicable fees and costs and  to employ counsel, no fees or costs shall  be required. The opposing party or parties may file with the court clerk of the court having jurisdiction of the cause an affidavit similarly executed contradicting the allegation of poverty. In all such cases the court shall promptly set for hearing the determination of eligibility to litigate without payment or fees or costs. Until a final order is entered determining that the affiant is ineligible, the clerk shall permit the affiant to litigate with­ out payment of fees or costs. Any litigant executing a false affidavit or counter affidavit pursuant to the provisions of this section shall be guilty of perjury.
 

State of Oklahoma,__________________County,______________, in the district court of said county:  I do solemnly swear  that the cause of action set forth in the petition hereto prefixed is just, and  I (or we) do further swear that by reason of my (or our)  poverty, I am unable to give security for costs.

This seems straightforward enough, but when a poor person tries to file an action in Oklahoma, they are faced with quite a different form and procedure. An informal survey of attorneys across the state reflects that each district court in Oklahoma has its own mostly unwritten local rules about how a poor person gets the approval to file an action without first paying court costs. The categorical break-down is:

1) Some district judges will not sign an order allowing filing in forma pauperis at all.

2) Some district judges will sign an order allowing filing in forma pauperis but will always assess the filing fees against the poor person at the conclusion of the case. One attorney commented, "It's like they magically become unindigent a t the end of all proceedings."

3) Some district judges will sign an order allowing the filing in forma pauperis but will require payment of the filing fee at the end of the case "by someone." Usually the parties split the cost.

4) There is a wide range of income categories that different judges feel satisfied are poor enough to waive filing fees. In some courts the filing fee is never fully waived, even if the person has no income or only social security.

5) Some district judges will never sign an order allowing a pro se filer to file in forma pauperis.

Most Oklahoma cases addressing access to the court and waiver of filing fees involve incarcerated plaintiffs. Oklahoma holds more people in penitentiaries than most modern nations. These prisoners participate in a lively pro se court practice. There are myriad rules and forms used by the courts to try to limit this access, but this article does not address that problem.

Tulsa County, the most transparent of the courts concerning the paupers affidavit process for civil filing, has their paupers affidavit posted online interactive at www.tulsadistrictcourt.com. It can be filled out online and printed for filing. Oklahoma County court clerk's office does not provide its form online, but mentions paupers affidavits only in its question and answer page for people interested in small claims court. Most counties do not have any published local court rules concerning pauper’s affidavits. But all of these forms require particular information not required by the statutory paupers affidavit form. Some courts dangerously require information that should not be public, such as social security numbers and names of children.

Maybe it is time we review our procedure. Both the U.S. Supreme Court and Oklahoma Supreme Court have said the perjury penalty is enough to protect the court from fraudulent affidavits. We should not have an insurmountable hurdle for poor people to clear to get to court.  Indigents have a constitutional right to proceed in court without payment of court fees. "The courts of justice of the state shall be open to every person and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial delay, or prejudice." Oklahoma Constitution, Article 2, §6. Still the law of the land.

ABOUT THE AUTHOR

Janet Roloff is a staff attorney at the McAlester office of Legal Aid Services of Oklahoma Inc.  Ms. Roloff defends foreclosures and provides legal representation to the  poor in consumer and housing-related issues. She is a 1977 graduate of rhe OU College  of Law.

Topics:
  • Pro Bono/Legal Services