WRIT GRANTED
Relator, Karonna Young, seeks review of the trial courts denial of her motion for rehearing of the denial of in forma pauperis status. Relator argues that the denial of in forma pauperis status was erroneous in consideration with the trial courts subsequent waiver of the expungement fees.
On June 17, 1996, Relator pleaded guilty to theft over $500 in violation of La. R.S. 14:67. On the same date, the trial court sentenced Relator to a term of three years imprisonment at hard labor, but suspended the sentence and placed relator on five years active probation. Following completion of her sentence, Relator sought an expungement under La. C.Cr.P. art. 983. In doing so, on June 14, 2022, Relator filed an in forma pauperis affidavit and supporting documentation requesting to proceed in forma pauperis pursuant to La. C.C.P. art. 5183. On June 14, 2022, the trial court denied Relators in forma pauperis application but waived the $550.00 Clerk of Court expungement filing fee. The trial court also stated that Relator “remains responsible for paying the State Police fee.” Relator subsequently filed a motion for rehearing, which was set for August 11, 2022.
On August 11, 2022, the trial court again denied Relators in forma pauperis application with a notation in the minute entry stating: “Defendant is able bodied and voluntarily employed with a degree, the defendant lives with a family member.” After Relators counsel made an oral notice of intent, the trial court set a return date for September 8, 2022. In the meantime, on August 23, 2022, the trial court issued its Reasons for Judgment Pursuant to La. C.C.P. art. 5183(B)(2). The instant writ application followed.
In forma pauperis status is a “privilege, not a luxury or a right.” Martin v. Martin, 39,631 (La. App. 2 Cir. 5/18/05), 903 So.2d 619, 625, writ denied, 05-1606 (La. 6/22/05), 904 So.2d 714. The privilege, codified in La. C.C.P. art. 5181(A), provides that “an individual who is unable to pay the costs of court because of his poverty and lack of means may prosecute or defend a judicial proceeding in any trial or appellate court without paying the costs in advance or as they accrue or furnishing security therefor.” La. C.C.P. art. 5182 further provides that the privilege of in forma pauperis status shall be restricted to litigants who are clearly entitled to it, with due regard to the nature of the proceeding, the court costs which otherwise would have to be paid, and the ability of the litigant to pay them or to furnish security therefor, so that the fomentation of litigation by an indiscriminate resort thereto may be discouraged, without depriving a litigant of its benefits if he is entitled thereto.
The procedure for the filing of an application to proceed in forma pauperis is set out in La. C.C.P. art. 5183, which provides, in pertinent part:
A. A person who wishes to exercise the privilege granted in this Chapter shall apply to the court for permission to do so in his first pleading, or in an ex parte written motion if requested later, to which the applicant shall annex the following:
(1) The applicants affidavit that the applicant is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor, because of the applicants poverty and lack of means, accompanied by any supporting documentation.
(2)The affidavit of a third person other than the applicants attorney that he knows the applicant, knows the applicants financial condition, and believes that the applicant is unable to pay the costs of court in advance, or a they accrue, or to furnish security therefor.
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(2)The submission by the applicant of supporting documentation that the applicant is receiving public assistance benefits or that the applicants income is less than or equal to one hundred twenty-five percent of the federal poverty level shall create a rebuttable presumption that the applicant is entitled to the privilege granted in this Chapter. If the court finds that the presumption has been rebutted, it shall provide written reasons for its finding.
A trial court is afforded wide discretion in determining whether or not to grant the privilege to litigate in forma pauperis. In the absence of a clear abuse of that discretion, an appellate court does not disturb the trial courts finding. Benjamin v. National Super Markets, Inc., 351 So.2d 138, 142 (La. 1977), writ denied, 366 So.2d 561 (La. 1979). In determining a litigants qualification to proceed as an indigent, the courts have taken a realistic view as to the litigants actual ability to advance or secure court costs out of net income available for that purpose, after payment of reasonable living expenses and debts, and in view of encumbered property other than a modest family residence. Id. at 141. In order to fulfill the purpose of the privilege of enabling indigent individuals to assert their claims in court, the jurisprudence has liberally construed the privilege. Id. at 140.
In the instant case, Relator submitted an in forma pauperis affidavit, stating she was 49 years old with no children or other dependents. According to the affidavit, Relator, who is a college graduate, had been unemployed for five years following her last job at Honey Baked Ham, where she earned approximately $1500-$2000 a month. Relator also indicated that she received $250 in food stamp assistance each month with no monthly expenses, such as rent, credit cards, or loans. In addition, a third-party affidavit, signed by Rosa Young, declared that the affiant knew Relator “well,” and that because of relators “poverty and want of means,” she was unable to pay the costs of court in advance or as they accrued. A summary of Relators Supplemental Nutrition Assistance Program (SNAP) benefits confirmed that Relator became eligible for food stamp assistance on February 1, 2020, and currently receives $250 a month.
In its written reasons for judgment, the trial court determined that Relator has no income by choice, and her lack of income was based on her decision to forgo employment in her desired field of education until her expungement was complete. The trial court further found that the absence of any living expenses, as stated in Relators affidavit, weighed against a finding of in forma pauperis status as “any job would allow [Relator] discretionary income to pay the filing fees at issue.” Under Relators circumstances, the trial court found that allowing Relator to proceed in forma pauperis would be an abuse of the privilege.
After considering the intended liberal application of the status, we find that the trial court abused its discretion in denying Relators request for in forma pauperis status in this matter. Despite the trial judges opinion of whether Relator can obtain employment to pay for the expenses associated with her expungement process, there was no evidence presented at the hearing to rebut Relators assertion that she is currently an indigent and is unable to pay court costs. Denial of in forma pauperis status on the bases found by the trial court could prevent Relator from accessing the judicial process of expunging the theft conviction for the unforeseeable future, which was not the intention of the Legislature or jurisprudence.
Accordingly, in the interest of justice, we grant the writ application, grant Relator in forma pauperis status, and remand the matter for further proceedings.
Gretna, Louisiana, this 14th day of October, 2022.
MEJ
RAC
SMC
FIFTH CIRCUIT
101 DERBIGNY STREET (70053)
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054
www.fifthcircuit.org
SUSAN M. CHEHARDY CHIEF JUDGE
FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON STEPHEN J. WINDHORST HANS J. LILJEBERG JOHN J. MOLAISON, JR. JUDGES
CURTIS B. PURSELL CLERK OF COURT
SUSAN S. BUCHHOLZ INTERIM CHIEF DEPUTY CLERK
LINDA M. WISEMAN FIRST DEPUTY CLERK
MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF
(504) 376-1400
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NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 10/14/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
CURTIS B. PURSELL CLERK OF COURT
22-KH-454
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Ellen Shirer Kovach (DISTRICT JUDGE)
Thomas J. Butler (Respondent)
MAILED
Joilynn Hollies (Relator)
Attorney at Law
4035 Washington Avenue
New Orleans, LA 70125