DOROTHY AMOS, APPELLANT,
v.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DISTRICT IV, COUNTY DUVAL, UNIT 13, APPELLEE
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Dorothy Amos appealed the denial of her motion to proceed in forma pauperis (without paying court costs) based on indigency. The court held that the Department of Health and Rehabilitative Services improperly denied her motion by requiring information not mandated by statute or court rules, and quashed the denial order.
An attorney's affidavit need not include a statement about whether the attorney's employer, agency, or association has funds available to pay filing fees, as such a requirement is not mandated by statute or court rules and improperly expands the procedural requirements for obtaining in forma pauperis status.
[1] A statute defining the substantive right of indigents to proceed without payment of costs is properly enacted by the Legislature.
[2] The Florida Supreme Court has exclusive authority to formulate procedures for availing oneself of the right to proceed in forma pauperis, pursuant to its rule-making auth…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The existence of the right of indigents to proceed without payment of costs is a substantive one, and is therefore properly defined by the Legislature. Formulating procedures for availing oneself of the right is the exclusive province of the Florida Supreme Court pursuant to the rule-making authority vested in it by Article V, Section 2(a) of the Florida Constitution.”
Establishes the distinction between substantive rights (legislature) and procedural rules (Florida Supreme Court), the core reasoning for rejecting HRS's additional requirement.
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Join FLexlaw to unlock all legal intelligenceDorothy Amos filed a motion to proceed in forma pauperis accompanied by her insolvency affidavit and an attorney's affidavit stating the attorney had …
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PER CURIAM.
Appellant filed a Motion for Permission to Proceed in Forma Pauperis with the Department of Health and Rehabilitative Services (HRS) pursuant to § 57.081 Fla. Stat. (Supp.1980) and Florida Rule of Appellate Procedure 9.430. The motion was accompanied by an insolvency affidavit executed by Ms. Amos and an attorney’s affidavit executed by her counsel. The attorney’s affidavit stated that he had made an investigation to ascertain the truth of appellant’s affidavit and believed it to be true; that he had investigated the nature of her position and in his opinion it was meritorious; and that he had not been paid or promised payment or remuneration and intended to act as attorney without compensation.
HRS denied the motion solely because the attorney’s affidavit did not include a statement indicating whether the attorney’s employer, agency, or association had funds available to pay a filing fee. As authority for the denial, HRS cited Chappell v. Florida Department of Health and Rehabilitative Services, 391 So. 2d 358, 361 (Fla. 5th DCA 1980), in which the Court stated:
The attorney should include in his affidavit a statement of whether or not, to the best of his knowledge, his employer, association or agency has funds available to pay appellate filing fees, and the lower court or agency may consider those matters in determining whether or not the applicant is able to pay the filing fees.
We disagree with the above-stated portion of the Chappell decision. The existence of the right of indigents to proceed without payment of costs is a substantive one, and is therefore properly defined by the Legislature. Formulating procedures for availing oneself of the right is the exclusive province of the Florida Supreme Court pursuant to the rule-making authority vested in it by Article V, Section 2(a) of the Florida Constitution. The requisite content of the attorney’s affidavit or certificate accompanying a motion for a certificate of indigency is specified in § 57.081(1) Fla.Stat. (Supp.1980), and the procedure for obtaining a certificate of indigency is found in Rule 9.430. Neither the rule nor the statute require or even suggest that the attorney must affirm that his or her employer, association or agency does not have funds available to pay filing fees.
We certify that this decision is in direct conflict with Chappell v. Florida Department of Health and Rehabilitative Services, 391 So. 2d 358, 361 (Fla. 5 DCA 1980), review granted Case No. 60,838 (Fla. November 19, 1981).
The order denying the motion to proceed in forma pauperis is QUASHED with instructions to issue a certificate of indigency,
ROBERT P. SMITH, Jr., C. J., and McCORD and ERVIN, JJ., concur.
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Jackson v. Fla. Dep't OF Corr., 790 So. 2d 381 (Fla. 2001)…rmed the long-standing proposition that the existence of a right for [*384] indigents to proceed without payment of costs is a substantive one and is properly provided for by the Legislature. See Amos v. Department of Health & Rehabilitative Servs., 416 So. 2d 841 (Fla. 1st DCA 1982). We also noted that the right could be properly limited by the Legislature, including a requirement that inmates contribute toward the costs of their lawsuits and ultimately pay for the lawsuits in full if they subsequently becom…
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Kalway v. State, 730 So. 2d 861 (Fla. 1st DCA 1999)…undoubtedly substantive. The parties agree that the right of indigents to proceed without payment of court costs and fees is a matter of substantive law properly defined by the legislature. See Amos v. Department of Health & Rehabilitative Services, 416 So. 2d 841, 842 (Fla. 1st DCA), review dismissed, 421 So. 2d 517 (Fla.1982). A decision whether to subject a prisoner’s trust account to payment of court costs and fees is clearly a subjective determination appropriately made by the legislature. Nevertheless…
Authorities Cited
- Am. Home Assurance Co. v. Fredrikson, 391 So. 2d 358 (Fla. 2d DCA 1980)
- Chappell v. Fla. Dep't of Health & Rehabilitative Servs., 391 So. 2d 358 (Fla. 5th DCA 1980)