When a litigant submits a completed IFP application, a Louisiana court has three options: (1) grant IFP status to the applicant, (2) “[d]en[y] the application with written reasons for such denial[,]” or (3) “[s]et[] the matter for a contradictory hearing.”1 As in every procedural stage, the court should liberally construe the IFP application and favor the litigant’s day in court.2 However, once made, the court’s determination is given great deference and is reviewed only for abuse of discretion.3 This standard favors deference towards the trial court in its application of the indigency balancing test.4 Nevertheless, if the trial court’s denial was procedurally defective (i.e., lacked written reasons or the opportunity for a contradictory hearing), the court of appeal should return the case to the trial court for reconsideration.5
If a trial court denies IFP status, an applicant can seek immediate review via a supervisory writ or wait and appeal the denial after a final judgment.6 As IFP denials cause irreparable injury, an applicant can properly appeal the interlocutory ruling as of right to the intermediate appellate court.7 Because the applicant has alleged indigency, the Louisiana Supreme Court has repeatedly ruled that an IFP applicant should be permitted to appeal a denial through a supervisory writ without paying the appellate filing fee.8 This exemption from filing fees also extends to appeals of IFP denials after final judgment; in that case, Louisiana courts address the IFP issue before considering the merits of the appeal.9 However, in order to appeal an IFP denial, the applicant must have actually applied for IFP status in the lower court.10
Significantly, in the case of a denial, the court renders the ruling, not the clerk of court. Because the Code of Civil Procedure leaves the choice of whether to require the recommendation to individual courts, a clerk’s recommendation of indigency status is not a pre-requisite for a court determination.11 Put another way, the clerk may sign off on the request but cannot deny it.12
- 1La. C.C.P. art. 5183(B)(1).
- 2See Benjamin v. Nat’l Super Markets, Inc., 351 So. 2d 138, 141 (La. 1977).
- 3See Ainsworth v. Ainsworth, 2003-1626 (La. App. 4 Cir. 10/22/03), 860 So. 2d 104, 108 (“The trial court is afforded wide discretion in determining whether to grant the privilege to litigate in forma pauperis. Such discretion must be exercised reasonably and is subject to review for abuse.”); Donley v. Hudson’s Salvage LLC, 2013-1499 (La. App. 1 Cir. 3/21/14), 2014 WL 1165871, at *3 (“In the absence of a clear abuse of that discretion, an appellate court will not disturb the trial court's finding.”).
- 4See, e.g., Howard v. W. Auto Supply Co., 192 So. 137, 137–38 (Orleans Ct. App. 1939). In Howard, the deferential standard of review proved controlling, as the appellate court affirmed an IFP denial even though the applicant had a “meager monthly income”: It is difficult, if not impossible, for us to believe that after plaintiff, from his meager monthly income of $57.19, which he receives only when he works full time, has paid the necessary cost of maintaining his family of five, there can be anything left for the payment of costs of litigation, and yet we realize that the income of plaintiff is probably more than is earned by countless thousands of other persons in the same social status and that many of these others are able, out of similar earnings, to pay the costs of such litigation as they may find it necessary to undertake. Still, we feel that our brother of the trial court must have fully satisfied himself in the premises, and it is well established that, in such matters, the trial judge has discretion which should not be disturbed or interfered with unless there is a showing of manifest error. Id.
- 5La. C.C.P. art. 5183(B)(1); see, e.g., Square v. Paynes, 2022-0385, p. 1 (La. App. 1 Cir. 7/18/22), 2022 WL 2802803 (“[Mover] did not receive any notice of the hearing on the motion . . . . Furthermore, the family court failed to give written reasons explaining why the presumption that the mover is entitled to proceed in forma pauperis was rebutted.”); Arvie v. Cullivan, 2018-1871, p. 1 (La. 1/18/19), 261 So. 3d 771, 772 (Hughes, J., dissenting) (“Respectfully, the trial court denied the motion to proceed in forma pauperis without a hearing and without reasons, by merely writing ‘denied’ on the motion . . . . The law is clear. It was error to deny the motion without a hearing and evidence to rebut the presumption.”). But see State in re A.C., 2020-0828, p. 7 (La. App. 1 Cir. 2/19/21), 2021 WL 651122 (finding, based on La. Ch.C. art. 321, that IFP applicant had no such right to a contradictory hearing because the Children’s Code “imposes no such requirement on the court in determining a party’s ability to pay court costs”).
- 6See A.C., 2020-0828, p. 3, 2021 WL 651122. Although both options are open to a denied applicant, Louisiana courts favor review through supervisory writ. See Starks v. Universal Life Ins. Co., 95-1003, p. 12 (La. App. 1 Cir. 12/15/95), 666 So. 2d 387, 394 n.4 (“We note that the more appropriate way to challenge the trial court’s denial of a request to proceed in forma pauperis is to invoke this court’s supervisory jurisdiction by applying for writs.”).
- 7See Faucheaux v. Commercial Union Ins. Co., 342 So. 2d 269, 269–70 (La. App. 3 Cir. 1977) (quoting Shaneville v. Toye Bros., 173 So. 464 (Orleans Ct. App. 1937)). Although intermediate appellate courts must review a trial court’s IFP denial, the Louisiana Supreme Court has the discretion whether to review an intermediate appellate court’s IFP ruling. See Rules of Supreme Court of Louisiana, Rule X (Writ Applications). The Supreme Court provides five possible grounds for writ consideration: (1) Conflicting Decisions, (2) Significant Unresolved Issues of Law, (3) Overruling or Modification of Controlling Precedents, (4) Erroneous Interpretation or Application of Constitution or Laws, and (5) Gross Departure from Proper Judicial Proceedings. Id.
- 8Richardson v. Say, 98-1094 (La. 5/29/98), 719 So. 2d 1271 (“Granted and transferred to the court of appeal for consideration on the merits without the payment of a filing fee.”); Kenner Reg’l Med. Ctr. v. Mensingh, 98-0186 (La. 1/22/98), 709 So. 2d 684, 685 (“Where relator is seeking review of the denial of an application to proceed in forma pauperis, the clerk of court shall allow the application to be filed without the payment of costs.”); Riebow v. Riebow, 97-3093 (La. 1/9/98), 705 So. 2d 1086 (same); Language v. Language, 96-1874 (La. 10/25/96), 681 So. 2d 350, 351 (same); Peterson v. Peterson, 97-0144 (La. 3/7/97), 691 So. 2d 664, 665 (same); Cook v. Cook, 98-0023 (La. 1/9/98), 705 So. 2d 1087 (same).
- 9See A.C., 2020-0828, p. 3, 2021 WL 651122.
- 10See Harrison v. Minardi, 2007-514, p. 4 (La. App. 3 Cir. 10/31/07), 968 So. 2d 1221, 1224 (affirming dismissal when IFP paperwork arrived three days after surety bond deadline, thereby preventing trial court from considering the application and appellate court from considering appeal of status); Clarkston v. Funderburk, 2016-681, p. 10 (La. App. 3 Cir. 2/1/17), 211 So. 3d 509, 514 (same, as litigant “failed to apply for pauper status and did nothing during the six weeks given for posting the bond, or during the thirty additional days that she received on her request for an extension, to improve her position”).
- 11La. C.C.P. art. 5183(B)(1) (“Upon the filing of the completed application and supporting affidavits, the court shall render an order . . . .”).
- 12See 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.”).