In addition to affidavits from the litigant and a knowledgeable third party, an IFP applicant must obtain a “recommendation from the clerk of court’s office as to whether or not it feels the litigant is in fact indigent, and thus unable to pay the cost of court in advance, or as they accrue, or to furnish security therefor, if required by local rule of the court.”1 This is a nonbinding recommendation solely as to the fact of indigency; the court must ultimate decide whether or not to grant IFP status.2
Although no district court in the New Orleans area currently requires a clerk’s recommendation,3 clerks of court have sometimes increased procedural hurdles for a litigant by treating the request for a recommendation as an occasion for a contradictory hearing or extensive factfinding. Rather than creating obstacles at the recommendation stage, La. C.C.P. art. 5184 allows the clerk of court to traverse the facts asserted by the affidavits. As a result, any procedure for obtaining the clerk’s recommendation should adhere to the admonition of the Louisiana courts that IFP statutes be “interpreted liberally in favor of giving indigent persons their day in court.”4
La. C.C.P. art. 5183 does not spell out the level of affidavit detail or even the precise steps needed to secure the clerk of court’s recommendation. In the face of any apparent difference in law and practice, the Uniform Rules details the proper standard: “[A] conflict between a Rule and legislation should be resolved by following the legislation.”5 Nonetheless, courts have been called on to determine whether local requirements have gone too far.
Two cases help trace the edges. In Wilson v. Willis, the First Circuit found local affidavit requirements in line with legislative principles.6 The district court required an IFP applicant “set[] forth a list of his property and its value, his earnings for the preceding two years, the indebtedness, and his needs or those dependent upon him . . . .”7 Although this local rule was more specific than Article 5183, the court held that a clerk “may inquire into the facts at the time the motion is presented to him, either of the applicant’s attorney or (presumably) through a questionnaire required of the litigant . . . .”8
As its authority, the Wilson court cited Futch v. Coumes, a case that resulted in the opposite conclusion.9 Reviewing the refusal of IFP status by a district court in Lafayette Parish, the Louisiana Supreme Court determined that the local rules exceeded what was authorized by the statutes.10 The trial court required both the applicant and third-party witness to “appear in person at the clerk’s office to execute the affidavits” together, with both then being “subject to interrogation by a deputy clerk (a non-judicial officer) concerning the litigant’s lack of means.”11 The Supreme Court found the practice riddled with overreaches.12 An initial application presentation to a clerk did not in itself render the rule invalid, but a “quasi-judicial hearing” before a deputy clerk, who has the authority to deny an application, combined with the “mandatory personal appearance for a mini-hearing at the courthouse . . . of all litigants [ran] contrary to the statutes establishing the procedures by which poor litigants are permitted to proceed in forma pauperis.”13 The Supreme Court suggested that the clerk’s authority might be limited to inquiry into the applicant’s financial means “on the basis of the affidavits, inquiry personally (or by telephone) of the litigant’s attorney, or possibly by examination of a reasonable questionnaire (if required by a court rule).”14
- 1La. C.C.P. art. 5183(A)(3) (stating the office bases its recommendation on “whether or not it feels the litigant is in fact indigent . . .”).
- 2La. C.C.P. art. 5183(B)(1) (“Upon the filing of the completed application and supporting affidavits, the court shall render an order . . . .”). But see La. C.C.P. art. 283(A)(4) (“The clerk of a district court may sign any of the following orders or judgments: . . . (4) An order to permit a party to institute and prosecute, or to defend, a suit without the payment of costs, under the provisions of Articles 5181 through 5188.”).
- 3See Appendices - Rules for Louisiana District Courts, (local rules for district courts of Orleans, Jefferson, St. Tammany, Washington, and St. Charles Parishes).
- 4Benjamin v. Nat’l Super Markets, Inc., 351 So. 2d 138, 141 (La. 1977).
- 5La. Dist. Ct. Rules, Rule 1.0 cmt. (a).
- 6Wilson v. Willis, 404 So. 2d 529 (La. App. 1 Cir. 1981).
- 7Id. at 530.
- 8Id. (internal citation omitted).
- 9Futch v. Coumes, 347 So. 2d 1121 (La. 1977).
- 10Id. at 1123.
- 11Id. at 1123–24.
- 12Id. at 1123.
- 13Id. at 1124.
- 14Id.