Section Review

The Indigent Court Costs Law: An overview and update

Allan Rodgers is executive director of the Massachusetts Law Reform Institute.
Ernest Winsor is a staff attorney at the Massachusetts Law Reform Institute. He drafted the Indigent Court Costs Law.
The Indigent Court Costs Law is a vital tool to obtain equal access to justice for those whom poverty would otherwise bar from the judicial system. The purpose of this article is familiarize practitioners with the basics of the law and describe recent developments that should facilitate its use.


When legal aid programs first came into being in the late 1960s, they found that many poor persons had difficulty accessing the courts because of their inability to pay the court fees or costs without forgoing necessities. To initiate a court action, a litigant not only had to pay the filing fee, but often a fee for service of process and, in some Probate and Family Court cases, the costs of newspaper publication of notice. Some poor persons had to post a bond before being able to appeal certain types of cases, such as summary process evictions. Others could not feasibly conduct litigation through discovery, subpoenaing witnesses and incurring similar costs because those costs were prohibitively expensive.

Some legal aid programs had funding in their budgets for litigation costs. However, covering these costs for most or all of their clients was well beyond their budgets and the trade-off for this expenditure was that they would have to represent fewer poor people.

To address these problems, in 1974, legal aid programs drafted and got put into law a comprehensive statute that requires or permits courts to waive or pay certain court costs of indigent persons. Chapter 261, ßß27A-G (referred to in this article as the Indigent Court Costs Law).

The following are the major features of this law.

a) Those eligible for waiver or state payment of court costs were divided, for ease of administration, into three groups:

i) Category A - Those who are receiving certain identified means-tested public benefit program payments, which makes them automatically eligible for waiver or state payment.

ii) Category B - Those not receiving a means-tested public benefit program payment but whose income is below 125 percent of the federal poverty line.

iii) Category C - Those in neither Categories A nor B but who nevertheless do not have the funds to pay for any court costs that a non-poor litigant would believe necessary to conduct the litigation.

b) The statute divides allowable costs into two categories:

i) Normal costs, including filing fees, service of process and similar costs that are assessed as a matter of course in litigation. The statute provides that a person presenting the need for help on these costs should have them waived or paid as a matter of course.

ii) Extra costs, including the costs of subpoenas and depositions, which are not normally assessed in each case but which are needed by a litigant to conduct his or her case with the same resources as litigants who can pay their own costs.

c) The chief justice of the Supreme Judicial Court is authorized by the statute to promulgate forms and to update the federal poverty line needed for Category B cases. The SJC chief has devised a comparatively simple Affidavit of Indigency for Categories A and B cases, and a longer Supplemental Affidavit, requiring much more extensive financial information, for Category C cases. The forms are available at all clerks' offices.

d) The statute does not provide an explicit source for funding these expenses. For such things as filing fees, which are assessed directly by the state to litigants, the state foregoes the payments, and so a separate funding source is not necessary. But other costs, such as those that are due third parties (sheriffs, newspapers, witnesses, stenographers, etc.), must be paid to these third parties out of state funds.

In the past, these expenses were taken out of court or the Committee for Public Council Services budgets without a particular earmarked amount. This meant that when budgets became tight, courts would sometimes slow down or not comply with the Indigent Court Costs Law. In more recent years, the Legislature has developed a separate budget item for indigent court costs (0321- 1530 for FY 2004, containing some $8 million). If the money in this budget item runs out before the end of the fiscal year, the difference is made up in a deficiency budget. As a result, there has been less backing and filling in the payment of indigent court costs when budgets are tight.

Recent issues regarding administration of the Indigent Court Costs Law

During the last few years, several changes have occurred that have tended to dilute the effectiveness of the Indigent Court Costs Law as it was conceived.

a) In Underwood v. Appeals Court, 427 Mass. 1012 (1998), the SJC decided the courts have the authority to assess partial fees as a "substitute" for normal fees under the statute. This appeal was brought by a pro se prisoner who was ordered by the Appeals Court to pay $6 of the normal Appeals Court $150 filing fee. No lawyer or other party was involved in the appeal. Legal aid lawyers believe that this case was wrongly decided, and they formally asked the court to reconsider it, albeit two years after it was issued. The court rejected that request, as related below.

b) Some judges and clerks insisted that applications for waiver or state payment of court costs, even under Categories A (recipient of means-tested public benefit program) and B (income below 125 percent of the federal poverty line), must be presented to judges, and consequently these cases have taken an undue amount of time from legal services advocates and litigants.

c) There has been a push from some of the courts to require the Supplemental Affidavit of Indigency (requiring detailed information about income, assets and other matters) in Category B cases. In the past it had been used only in Category C cases.

d) The Legislature passed a law imposing a different and stricter procedure for prisoners to get waiver or state payment, at least of normal costs, and explicitly endorsing the assessment of partial costs (see c.261, ß29).

e) The District Courts petitioned the SJC for approval of somewhat modified forms. They were approved by the SJC but raised a number of issues, and were not drafted in a particularly user-friendly manner.

Steps recently taken to address these issues

These events persuaded legal aid programs to form a work group, consisting of advocates from the Massachusetts Law Reform Institute, Cambridge and Somerville Legal Services, Western Mass. Legal Services and Mass. Correctional Legal Services, to recommend modifications to the Indigent Court Costs Law forms and for more comprehensive instructions to be issued by the SJC chief justice. This work group drafted and submitted to the Supreme Judicial Court Rules Committee a comprehensive set of revised forms, as well as instructions to litigants and to the courts about how the statute is to be administered. The group also tried to persuade the SJC to back away from its Underwood decision, arguing that it should be limited to its prisoner fact context, or should be countermanded under the court's power to make court-related administrative decisions through rule and in decided cases.

On March 25 of this year, Chief Justice Marshall issued to all court chief justices a package of revised forms and new instructions to take effect May 5. With the exception of the Underwood issue, the chief justice adopted all of the recommendations that the legal aid group had proposed.

a) The forms and instructions make clear that Categories A and B cases are to be approved by the clerk's office and are not to be sent to a judge unless the papers on their face raise a significant issue of eligibility.

b) The Supplemental Affidavit is only to be used in Category C cases (for a person who does not qualify under Categories A or B, but cannot pay the expenses of litigation without depriving themselves of necessities), and is not to be used in Category B cases, as some Trial Courts had urged.

c) They make clear that another party or its attorney or representative does not have access to Indigent Court Costs Law court papers except by explicit court order, and reaffirms that an indigent party does not need to send a copy of any of these papers to any other party in the case.

d) They make clear that a clerk's office reviewing a court complaint with a filing fee waiver request must docket the complaint that same day, or retroactively docket it to the day presented if a fee waiver is later granted. This will help in some cases where there is a time limit, such as a statute of limitations or a petition for judicial review appeal deadline. In the past, some clerks' offices have rejected these initial filings.

e) They confirm that the changes in the statute for prisoner applications apply only to normal costs, and not to extra costs.

f) They make clear that a petitioner need not put in the form an exact dollar amount of costs sought to be waived or paid by the state if the petitioner does not know them, and that the court should fill in these numbers when the application is granted. In the past, some courts had rejected petitions if they did not contain specific information about the amounts of the costs.

g) With respect to the assessment of partial fees or costs, the chief justice in her Instructions to Courts referred to the Underwood decision, implied that a judge should make this decision and said that the judge should "exercise reasonable discretion, considering the totality of the applicant's economic circumstances, before ordering payment of a partial fee." We interpret this language to require that the applicant must have a readily identifiable source of funds, as did the prisoner in the Underwood case, out of which he or she could pay the partial fee.

Because the court has addressed most of what we believe to be the major uncertainties in the implementation of the Indigent Court Costs Law, we hope that it will be better administered in accordance with its purpose and provisions. We remain concerned about the possible imposition of partial fees and costs, which we believe is inconsistent with the statute.

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