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Rule 3.1 – Waiver of Filing Fee and Service Costs

May 14, 2021 | Civil Procedure, Vermont

(a)Application. Any person who intends to bring an action or is a party to a pending action may, without fee, file an application in the court in which such action is to be brought or is pending for waiver of the filing fee and service costs. The application shall be accompanied by an affidavit setting forth (i) the source and monthly amount of any public assistance which is received by the applicant, (ii) the amount of monthly income received from any other source by the applicant, (iii) any nonexempt assets owned by the applicant and (iv) the monthly expenses necessarily incurred for the support of the applicant and all persons who are dependent upon the applicant. The application and affidavit shall be made on forms furnished by the court administrator.
(b)Waiver of Filing Fee and Payment of Service Costs. The determination whether an applicant is unable to pay the filing fee or costs of service of process shall be made by the clerk of the court or the clerk’s designee.

(1) If the affidavit sets forth that the applicant is a recipient of any public assistance or is a person whose gross income is at or below 150% of the poverty income guidelines for nonfarm families established under the Community Services Act of 1974, the entire filing fee and costs of service shall be waived.
(2) If the affidavit sets forth that the applicant is unable to pay either the filing fee or the costs of service without expending household income or liquid resources necessary for the maintenance of the applicant and all dependents, the entire filing fee or costs of service or both shall be waived.
(3) The method of service shall be in the discretion of the clerk, who shall order service to be made by the appropriate method provided in Rule 4.
(4) Within seven days of issuance of the decision on the application towaive the filing fee and costs of service, the applicant may appeal the decision to the presiding judge of the court.
(c)Costs; Reimbursement. If the applicant prevails in the action, all fees or service costs paid under subdivision (b) of this rule may be taxed as costs against the opposing party in favor of the state, if the court finds that that party is able to pay such fees or costs. Before accepting a complaint for filing with the fee waived or disbursing funds for service costs, the clerk shall cause the applicant to sign an agreement to reimburse all fees or service costs so waived or paid, if at any time during the pendency of the action the applicant becomes or is discovered to be financially able to make such reimbursement according to the standards applied in determining inability to pay under subdivision (b) of this rule. The several clerks are authorized to proceed by execution or action to recover all fees or costs which defendant or plaintiff becomes liable to pay or reimburse under this paragraph, if such payment or reimbursement is not made voluntarily upon demand.
(d) If an application to waive the filing fee and service costs is denied, the clerk shall forthwith serve a notice of the denial, together with notice of the right to appeal to the presiding judge within 7 days, and a statement that the filing fee must be paid within thirty days or the action will be subject to dismissal. Failure to pay the filing fee within thirty days of the date the denial is entered shall be ground for dismissal of the action by the court or on motion of a party.

V.R.C.P. 3.1

Added Nov. 25, 1986, eff. July 1, 1987; amended Nov. 9, 1987, eff. March 1, 1988; March 21, 1996, eff. March 21, 1996; October 19, 1999, eff. December 31, 1999; March 31, 2004, eff. July 1, 2004; October 11, 2006, eff. December 11, 2006; amended June 12, 2020, eff. August 18, 2020.

Reporter’s Notes-2020 Amendment

Rule 3.1 is amended to eliminate ambiguous, inconsistent, or obsolete language, including the time-honored but unspecific label “in forma pauperis,” and to simplify the process. Simultaneous conforming amendments are being made to V.R.A.P. 24 and V.R.P.P. 3.1.

The inclusion of the income of the applicant’s “cohabiting family members” in determining the applicant’s income is eliminated from both subdivisions (a) and (b). The phrase is ambiguous and overbroad. In the calculation of the applicant’s need for a waiver, it is not appropriate to consider the income of someone who may have no obligation to support the applicant or no stake in the outcome of the litigation. To the extent that paragraph (b)(2), covering an applicant who is not an aid recipient, requires consideration of more than the applicant’s resources, “household income” is a more specific phrase. The language in paragraph (b)(1) limiting qualifying public assistance to that constituting “a major portion of subsistence” has been eliminated because of its breadth and ambiguity and the burden of calculation that it imposes on the clerk or designee.

Because the first sentence of Rule 3.1(b) makes clear that the waiver eligibility determination is made by the clerk or designee, the remainder of the subdivision is simplified and made uniform in style, by eliminating the reference to the clerk or designee from paragraph (2) and combining that paragraph with former paragraph (3). Former paragraphs (4) and (5) are renumbered (3) and (4).

Rule 3.1(d) is amended to require the clerk to give notice to the applicant of the right to appeal the denial of an application provided by amended Rule 3.1(b)(4).