Colorado § 13-16-103 - Costs of poor person.

§ 13-16-103. Costs of poor person.

(1) If the judge or justice of any court, including the supreme court, is at any time satisfied that any person is unable to prosecute or defend any civil action or special proceeding because he is a poor person and unable to pay the costs and expenses thereof, the judge or justice, in his discretion, may permit such person to commence and prosecute or defend an action or proceeding without the payment of costs; but, in the event such person prosecutes or defends an action or proceeding successfully, there shall be a judgment entered in his favor for the amount of court costs which he would have incurred except for the provision of this section, and this judgment shall be first satisfied out of any money paid into court, and such costs shall be paid to the court before any such judgment is satisfied of record.

(2) In determining whether a plaintiff in an action brought pursuant to article 4 of title 14, C.R.S., may be permitted to proceed without the payment of costs, the court shall take into account only those assets to which the plaintiff has direct access. The court shall not consider assets which the plaintiff is unable to directly access even though the plaintiff may have an ownership interest in those assets.

Source: R.S. p. 154, § 3. G.L. § 325. G.S. § 399. R.S. 08: § 1076. C.L. § 6592. CSA: C. 43, § 22. L. 47: p. 458, § 5. CRS 53: § 33-1-3. C.R.S. 1963: § 33-1-3. L. 64: p. 220, § 44. L. 79: Entire section amended, p. 600, § 21, effective July 1. L. 91: Entire section amended, p. 239, § 3, effective July 1.

ANNOTATION

I. General Consideration.

II. Habeas Corpus Proceedings.

III. Reporter's Transcript.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Motions in Forma Pauperis: The First Step in Access to Justice", see 28 Colo. Law. 29 (Apr. 1999).

This section requires a judicial officer of any court, trial or appellate, to permit an indigent plaintiff to exercise the statutory right to appeal without the payment of costs. Bell v. Simpson, 918 P.2d 1123 (Colo. 1996).

The plain language of subsection (1) requires a judicial officer of any court, trial or appellate, to permit an indigent plaintiff to exercise the right of appeal without payment of costs, and district court erred in dismissing plaintiff's appeal for failure to post an appeal bond in the amount of $250 ordered by the county court at the same time it found that he was indigent. Rodden v. Colo. State Penitentiary, 52 P.3d 223 (Colo. 2002).

The sole and only purpose of this section is to aid the indigent litigant in getting into court in effect, opening the courts of justice to the poor person. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970).

This section aids in administering justice "without sale". Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970).

To be entitled to a waiver of "costs", the litigant must not only be "a poor person" who is not able to pay the costs, but also is unable to pay the expenses of the civil action or proceeding. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970).

The inability to pay expenses is, in effect, a test of indigency under this section. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970).

"In forma pauperis". Although this section does not use the term "in forma pauperis", this phrase is commonly employed to describe the petition for waiver of costs authorized by this section. Cook v. District Court ex rel. County of Weld, 670 P.2d 758 (Colo. 1983).

Whether payment of costs may be deferred is a matter of judicial discretion. From an analysis of this section it appears that, in the first instance, whether a litigant may commence or defend an action or proceeding without the payment of costs rests within the sound judicial discretion of the judge. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970); Medina v. District Court, 177 Colo. 185, 493 P.2d 367 (1972); Collins v. Jaquez, 15 P.3d 299 (Colo. App. 2000).

Judge's discretion in reviewing petition to commence without payment of costs. In the absence of factors such as bad faith or a plainly frivolous claim, the general assembly intended that the judge's discretion in reviewing a petition to commence and prosecute an action without payment of costs be limited to determining whether the petitioning party has the financial resources to pay the costs and expenses incident to the litigation. Cook v. District Court ex rel. County of Weld, 670 P.2d 758 (Colo. 1983).

Where plaintiff acted promptly to submit his amended in forma pauperis (IFP) motion, the granting of the amended motion should relate back to the filing of the original IFP motion. Fraser v. Colo. Bd. of Parole, 931 P.2d 560 (Colo. App. 1996).

In determining whether a prisoner may proceed under this section without payment of costs, the court may consider the person's complete financial condition, including the timing and nature of the prisoner's spending in the weeks immediately preceding commencement of the action. Vance v. District Ct. of Fremont County, 908 P.2d 1189 (Colo. App. 1995).

But a prisoner need not be destitute to proceed without payment of costs, nor must a prisoner develop a savings plan to provide for the possibility that he or she may want to file an action while incarcerated. Prisoners need not deprive themselves of the small amenities that they are allowed to acquire in order to qualify to proceed without payment of costs. Vance v. District Ct. of Fremont County, 908 P.2d 1189 (Colo. App. 1995).

Court must abuse discretion to reverse its order. To reverse an order denying such a request to proceed in forma pauperis, the court must have "abused its discretion". Medina v. District Court, 177 Colo. 185, 493 P.2d 367 (1972).

Finding by trial court of nonindigency not supported by record. Medina v. District Court, 177 Colo. 185, 493 P.2d 367 (1972).

This section does not apply to appeals from justice to county courts. Spain v. Murry, 77 Colo. 197, 235 P. 338 (1925).

Nor does it apply to the prosecution of writs of error. In Ferrara v. Auric Mining Co. (20 Colo. App. 411, 79 P. 302 (1905)) it is stated that the rulings of the supreme court are to the effect that this section does not apply to the prosecution of writs of error. Spain v. Murry, 77 Colo. 197, 235 P. 338 (1925).

The court is not confined to any particular stage in the progress of a case, after it is instituted, either before or after the trial is begun, in granting this permission; and certainly in the absence of any showing of an abuse by the trial court of its discretion under this section, or of injury or prejudice to the defendant, neither of which is made to appear in this case, a court of review will not interfere. Peck v. Farnham, 24 Colo. 141, 49 P. 364 (1897).

Security required under § 13-16-102 may not be excused or deferred under this section. Lewis v. Keim, 883 P.2d 610 (Colo. App. 1994) (disapproved of by supreme court in Walcott v. District Ct., 2nd Jud. Dist., 924 P.2d 163 (Colo. 1996)).

This section provides judges with the authority to waive cost requirements under §§ 13-16-101 and 13-16-102 and, therefore, provides sufficient authority to permit a plaintiff to proceed when the plaintiff is a poor person and unable to pay costs and expenses. Walcott v. District Ct., 2nd Jud. Dist., 924 P.2d 163 (Colo. 1996).

II. HABEAS CORPUS PROCEEDINGS.

While habeas corpus may, of course, be found to be a civil action for procedural purposes, it does not follow that its availability in testing the state's right to detain any indigent prisoner may be subject to the payment of a filing fee. Williams v. District Court, 160 Colo. 348, 417 P.2d 496 (1966).

This section guarantees it to poor persons. The legal device existing in the state which provides this equal protection in the postconviction civil remedy of habeas corpus is contained in and governed by this section, which allows a poor person to proceed without the payment of costs in a civil action on his making a showing of poverty. Williams v. District Court, 160 Colo. 348, 417 P.2d 496 (1966).

In the administration of criminal justice the indigent must be afforded access to established channels of appellate review in such manner that he is freed from the "invidious discriminations" which attach when proceeding in penury. Williams v. District Court, 160 Colo. 348, 417 P.2d 496 (1966).

There is no higher duty than to maintain the federal writ of habeas corpus unimpaired and unsuspended save only in the cases specified in the federal constitution. When an equivalent right is granted by a state, financial hurdles must not be permitted to condition its exercise. Williams v. District Court, 160 Colo. 348, 417 P.2d 496 (1966).

Judges have restricted discretion when habeas corpus is sought. Federal constitutional standards require consideration of the "freedom writ" in a quasi-criminal light when state procedures are tested for equal protection, and the discretion normally allowed the court under this section is restricted by very tangible federal limitations. Williams v. District Court, 160 Colo. 348, 417 P.2d 496 (1966).

Courts cannot saddle defendant with costs even when habeas petition is denied. The supreme court sees no difference of substance save subtlety between the "invidious discrimination" worked by a fee imposed upon an indigent before he is allowed to petition, which he cannot pay, and a fee saddled upon him after dismissal, which he also cannot pay. Both practices are effective deterrents. Williams v. District Court, 160 Colo. 348, 417 P.2d 496 (1966).

Invidious discrimination. To fasten a financial burden only upon those unsuccessful appellants who are confined in state institutions is to make an invidious discrimination. Williams v. District Court, 160 Colo. 348, 417 P.2d 496 (1966).

III. REPORTER'S TRANSCRIPT.

Section does not give a right to a free transcript. This section does not give an individual, found to be a pauper within the meaning of the statute, a right to a trial transcript without cost in order to prosecute an appeal. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970).

Transcript is not, by definition, a writ, process, or proceeding. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970).

The fees for the preparation of a transcript by a reporter are not payable to the court and the court cannot waive them. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970).

This section only permits the waiver by the judge of costs chargeable by the court. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970).

The supreme court may find other means of affording adequate and effective appellate review to indigent defendants than through a reporter's transcript. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970).

Section does not violate § 6 of art. II, Colo. Const. Although this section does not require that a trial transcript without cost be provided, § 13-16-103 is not violative of § 6 of art. II, Colo. Const. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970).

A transcript is not an absolute necessity in the reviewing court. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970).

Colorado, under its rule-making power, has augmented the waiver of costs by simplifying the requirements for a record. The supreme court, consonant with the spirit of this section to ease the burden on litigants, adopted C.A.R. 10. A discussion of this rule should dispel any implications that Colorado denies an effective review of trial court judgments by not providing free reporters' transcripts. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970).