January 5, 2022
Councilmember Charles Allen, Chairperson
Committee on the Judiciary and Public Safety
1350 Pennsylvania Avenue, N.W.
Washington, DC 20004
Re: Bill 24-0489, The “Expanding Fee Waivers for Low-Income Litigants Act of 2021”
Dear Chairperson Allen and members of the Committee on the Judiciary and Public Safety:
Washington Council of Lawyers, together with the organizations listed below, is pleased to submit the following testimony in support of Bill 24-0489, The Expanding Fee Waivers for Low-Income Litigants Act of 2021.” This legislation eases access to the courts for low-income individuals who cannot afford court filing fees and removes a significant impediment towards achieving the goal of equal access to the courts for all D.C. residents.
Joining our testimony are these organizations/individuals:
• Amara Legal Center
• Council for Court Excellence
• D.C. Bar Pro Bono Center
• DC Jail and Prison Advocacy Project
• Legal Counsel for the Elderly
• Network for Victim Recovery of DC (NVRDC)
• Washington Bar Association
• Andrew Budzinski, in his individual capacity (for informational purposes only: Assistant Professor of Law and Co-Director of the General Practice Clinic, UDC David A. Clarke School of Law)
Thank you for the opportunity to address this important issue.
With kind regards,
Christina H. Jackson
Testimony Before the District of Columbia Council
Committee on the Judiciary & Public Safety
On the Expanding Fee Waivers for Low-Income Litigants Act of 2021
January 6, 2022
The Washington Council of Lawyers, the public-interest bar association for the District of Columbia, submits this testimony in support of Bill B24-0489, the Expanding Fee Waivers for Low-Income Litigants Act of 2021. This legislation amends District of Columbia law to ease access to the courts for low-income individuals who cannot afford court filing fees. We thank Councilmember Allen for introducing this bill and the members of the Council who have co-sponsored this legislation and urge its swift enactment.
Since its founding in 1971, Washington Council of Lawyers has been the only voluntary bar association in the District of Columbia solely dedicated to promoting pro bono and public-interest law. We have over 550 dues-paying members. They are public-interest-minded lawyers, legal professionals and law students. Our members work at small and large law firms, corporate counsel offices, local and federal government agencies, law schools, legal services providers and policy organizations. They represent the private sector, including the participation of individuals from dozens of law firms, as well as the non-profit sector, including representatives from most of the legal services providers who benefit from the Access to Justice Initiative and Civil Legal Counsel Projects Program funded by the D.C. government with the support of the D.C. Council.
FILING FEES AND COMPLICATED FEE WAIVER APPLICATIONS AND PROCEDURES CONSTITUTE SIGNIFICANT BARRIERS FOR LOW-INCOME LITIGANTS SEEKING ACCESS TO OUR COURTS
Currently, to file a case without paying fees, low-income individuals filing actions in D.C. Superior Court must complete an In Forma Pauperis (“IFP”) application (See Superior Court Form 106A, In Forma Pauperis, attached). They then must wait for a court clerk or judge to approve the application. The process is unduly complicated and undoubtedly discourages many from going forward with their case. Fees in civil matters can be significant; in addition to initial filing fees, there are fees associated with numerous aspects of a civil case, such as fees for filing motions, seeking a jury demand, etc.
Although there are a few limited situations for which fee waiver applicants can “check a box” and get their application approved fairly quickly, for those applicants who do not fall into one of these categories, they must complete the lengthy Superior Court IFP form. As the attached form indicates, these litigants must estimate monthly expenses for their household in six categories, as well as listing other debts and expenses; and list all of their assets, including cash, bank accounts, cars, and homes. Completing this paperwork – a prerequisite to filing a complaint without a fee — creates a barrier that is overwhelming and intimidating for many litigants.
As one commentator has noted in the context of federal court fee waiver procedures:
Since these [federal court fee waiver] applications require a significant amount of information, the applications function as a tax on litigation by poor people. However, not all potential IFP litigants will be in a similar position to pay the tax. There will be some who find it easier to comply with the paperwork – whether through education, assistance from family or friends, or simply having more time. Others who lack those resources or face other obstacles (such as a language barrier) may not.
Andrew Hammond, Pleading Poverty in Federal Court, 128 Yale L.J. 1478, 1504 (2019).
In urging a proposed national standard for fee waivers in federal court similar to those outlined in Bill B24-0489, Hammond reasoned that his proposal:
urges judges to take back their time by streamlining a specific, fairly ministerial function. Judges’ skills are not always required to make IFP determinations. Federal law has created agencies that make poverty determinations as a matter of course. Those determinations are routine and regular. Federal practice should build on those means tests in making IFP determinations. Federal judges need not make complicated, arcane poverty determinations because such determinations do not necessarily demand adjudicatory expertise. It seems uncontroversial to assert that we should prefer that judges adjudicate disputes rather than compute a litigant’s resources . . . .
A streamlined, shorter form also makes the process more sophisticated and more accurate while preserving the dignity of poor people. A truly poor movant would not need to divulge every detail of her financial situation (and other details like schooling) to receive IFP status. . . . [T]his article suggests that access to justice should include the ways in which poor litigants are treated once they enter the civil adjudicatory system. . . . IFP determinations are yet another barrier in the realm of access to justice but one that scholars have failed to see as such. Id. 1533-34.
This legislation will greatly expand the number of litigants who would be able to bypass the cumbersome process now in place. Although current law (D.C. Code section 15-712) creates a presumption of eligibility to proceed without payment of fees for individuals receiving a limited number of forms of public assistance, Bill B24-0489 would add several additional benefit programs to that list, including Medicaid, Supplemental Nutrition Assistance Program and Special Supplemental Nutrition Program for Women, Infants and Children. Importantly, the legislation changes the presumption of eligibility to a guarantee. A guarantee of eligibility for the recipients of these programs will make it significantly easier for numerous individuals to have their day in court. It also eases the burden to the courts, who will be saved the task of examining applications when litigants receiving these new programs (i.e., TANF) would most certainly qualify after the financial review. This guarantee will also reduce the amount of time attorneys will need to spend drafting fee waiver requests for low-income clients, permitting these lawyers to concentrate on substantive legal issues instead.
As noted above, the exercise of discretion in granting fee waivers can at times create a humiliating experience for the litigant, especially when a judge embarks on an interrogation about how the litigant spends available limited income. Expanding the number of fee waivers that are automatically or presumptively granted will spare many litigants a potentially mortifying and intrusive inquiry into their finances, expenses, and life choices.
We have noted concerns that this bill may reduce fees received by the court. In our view, the vast majority of the litigants who will be presumptively eligible under the new law would be eligible in any event when their case is reviewed by a judge for financial hardship. And if more fee waivers are eventually granted, this may simply be because more eligible individuals will apply for the waiver, undeterred by the onerous procedure – which advances access to justice and is consistent with the court’s goals to ensure they are “open to all.”
MANY OTHER JURISDICTIONS HAVE ADOPTED EXPANDED FEE WAIVER LEGISLATION AND POLICIES
This legislation would grant a fee waiver on several new grounds, including if a litigant’s monthly income does not exceed 200% of the federal poverty guidelines issued by the United States Department of Health and Human Services or if the litigant is represented by a legal services organization. This approach has already been utilized in numerous states. According to a 2019 study, twenty-six states have adopted a means test tied to the federal poverty guidelines to their fee waiver procedures. Hammond, at 1512, 1540, Table 5. Most of them use an income threshold set at 125% of the federal poverty line or higher. Several states permit litigants who receive other means-tested public benefits (such as TANF, SSI, Medicaid and SNAP) to receive a fee waiver. And eighteen states allow litigants represented by legal aid attorneys to automatically qualify for fee waivers. Hammond at 1512-13 and Appendix A, Table 5 – In Forma Pauperis Rules in the State Courts (attached). For example, Minnesota permits any litigant represented by a civil legal services lawyer or a volunteer pro bono attorney to proceed without paying filing fees. Minn. Stat. section 563.01 (2016). Courts in South Carolina have a similar provision pursuant to a court rule. S.C.R. Civ. P. 3(b)(2).
In enacting a fee waiver policy for low-income individuals represented by a legal services organization, the Justice of the Peace Court of Delaware offered a straightforward, persuasive rationale:
Indigent service agencies . . . regularly represent civil clients through their poverty programs who are unable financially to cover court costs. Because these clients have qualified for representation under the financial guidelines set forth by the various agencies, they would also qualify for approval of an in forma pauperis application at the Court. As such, it is duplicative to ask that the agency prepare the additional paperwork necessary for the in forma pauperis filing.
State of Delaware, Justice of the Peace Court, Policy Directive 18-258 (September 19, 2018).
The Washington Council of Lawyers enthusiastically urges the enactment of this legislation. We are grateful to the many members of the Council who have indicated their support for this bill through their co-sponsorship.
As the D.C. Court of Appeals has stated, the District’s fee waiver statute “effectuates the fundamental principle that every litigant should be provided equal access to the courts without regard to financial ability.” Green v. Green, 562 A.2d 1214, 1215 (D.C. 1989). This legislation enhances this concept by creating an equitable, streamlined process to effectuate this important goal and turn this principle into a reality.