Jane Roe, a pro se plaintiff, appeals from a single justice order denying her requests to waive filing fees in this court. She argues that G. L. c. 261, § 27C(2),
Background. The plaintiff has a history of claiming indigency and seeking waiver of court costs and filing fees based upon her income, although she has admitted in the past to having had аvailable to her other assets.
In the present instance, the plaintiff, in each case, filed motions to waive thе filing fee, together with an affidavit of indigency purporting to show her eligibility under “Category B,” as described in paragraph 4 of the Indigency Instructions, i.e., income below 125 per cеnt of the Federal poverty level.
“found unpersuasive the argumеnt repeated here by the plaintiff that because her initial affidavit states that her income after taxes is 125% or less than the current poverty threshold no further inquiry can be made on her ability to pay. . . . Furthermore, the plaintiff’s admissionat that time in her supplemental affidavit to having approximately $75,000.00 requires this court to ascertain, by the filing of the supplemental affidavit, whether such assets still exist.”
The plaintiff has filed notices of appeal pursuant to G. L. c. 261, § 27D, from the denials by the single justice to waive the plaintiff’s Appeals Court filing fees.
Discussion. Normal fees or costs that are otherwise required to be paid to prosecute or defend civil actions may be waived by the court for persons who satisfactorily establish that they are indigent. According to G. L. c. 261, § 27A, see note 1, supra, an indigent person is, inter alla, “(b) a person whose income, after taxes, is 125 per cent or less of the current poverty threshold.” Likewise, the Indigency Instructions, see note 2, supra, provide that applications for State payment or waiver of normal fees and costs “must be approved by the Clerk . . . without delay so long as they are regular on their face and raise no significant question about whether the applicant is indigent.”
The plaintiff interprets the statute and the Indigency Instructions to foreclose further inquiry by thе clerk and referral to a judge if the form is properly filled out and states on its face that the affiant is indigent. The clerk must, according to the plaintiff’s interpretation, ignorе all other information before the court, including prior filings by the plaintiff inconsistent with the affidavit. We do not read either the statute or the Indigency Instructions to require that the clеrk disregard other court filings that raise a “significant question” about the reliability of the affidavit. Indigency Instructions, paragraph 4. Cf. Otis v. Arbella Mut. Ins. Co.,
In this case, there were previous court filings by the plaintiff for payment of entry fees and costs, in which she had represented that she had significant assets. The existence of such documentation justified further consideration by the clerk and referral to a judge as was done here. The actions taken by the
Order of single justice affirmed.
Notes
General Laws c. 261, § 27C(2), as amended through St. 1980, c. 539, § 7, provides:
“If the аffidavit appears regular and complete on its face and indicates that the affiant is indigent, as defined in section twenty-seven A, and requests a waiver, substitution or payment by the commonwealth, of normal fees and costs, the clerk [or assistant clerk] shall grant such request forthwith without hearing and without the necessity of appearance of any party or counsel.”
The Indigency Instructions provide, in pertinent part:
“4) Duties of Clerk — The statute requires that applications for waiver or state payment of normal fees or costs under Categories A (reciрients of certain means-tested public benefit programs) and B (income is below 125% of the federal poverty line) must be approved by the Clerk (or the Assistant Clerk) without delay sо long as they are regular on their face and raise no significant question about whether the applicant is indigent. G. L. c. 261, § 27C(2). Except in prisoner cases, such papers shоuld not be referred to a judge for decision, nor should further information be requested if the papers are properly completed. Also, the Clerk should not require an аpplicant to complete the Supplement to the Affidavit of Indigency form unless he or she is applying under Category C.”
In this context, “clerk” includes assistant clerks. G. L. c. 261, § 21 A.
For еxample, a single justice, in an order dated April 23, 2004, denied the plaintiffs
This is not to be confused with her separate appeal under G. L. c. 261, § 27D, to a single justice of this court from an ordеr of the Superior Court judge in Roe vs. Rosencratz, supra, denying her postjudgment motion under G. L. c. 261, § 27B, for State payment of certain requested postjudgment discovery costs. Although the plaintiff also sought to appeal the order of the single justice, her notice of appeal was struck as the decision of a single justice reviewing a lower court order under G. L. c. 261, § 27D, is final, and there is no further right of appeal. Moore v. Superior Ct. Dept. of the Trial Ct.,
Section 1(B) of each of the plaintiffs affidavits provided, in pertinent part (emphasis supplied):
“My income, less taxes deducted from my pay, is $850 (approx) per week/ month/year (circle periоd that applies), for a household of 1 persons, consisting of myself and 0 dependents; which income is at or below the court system’s poverty level; .... List any other available household income for the circled period on this line . . . .”
On all three affidavits she filed, she included the amount “$850.” On one of the
The decision of a single justice respecting waiver of an appellate docketing fee under G. L. c. 261, § 27D, is reviewable by a panel. Hunt v. Appeals Ct.,
While the plaintiff argues that the Indigency Instructions provide mandatory requirements to the courts, the introduction to the document describes itself as “comments that [the Supreme Judicial Court] make[s] ... in order to provide guidance to you in administering [G. L. c. 261, §§ 27A-G and 29.]”