Testing the line between mandatory court costs and discretionary processing fees, litigants in expungement cases have had restricted recourse to IFP status through legislative silence and, more recently, application by local officials. The availability of fee waivers in expungement cases was not entirely clear prior to 2014.1 The 2014 reworking of expungement procedures standardized fee-waiver requirements specific to expungements.2 Seeking to expand these narrow fee-waiver options, the Louisiana Legislature in 2018 added an even more specific provision: “Notwithstanding any provision of law to the contrary, an applicant for the expungement of a record . . . may proceed in forma pauperis in accordance with the provisions of Code of Civil Procedure Article 5181 et seq.”3
This incorporation of the civil IFP status into the Code of Criminal Procedure means that a person seeking an expungement may proceed in forma pauperis. However, if the expungement is unsuccessful, “appeal costs may be assessed against him.”4 Nevertheless, and despite the clear language of the 2018 amendment, courts, advocates, and expungement seekers have struggled to make use of IFP status in expungement cases.5
- 1See La. R.S. 44:9, repealed by Act No. 145, 2014 La. Acts 1; State ex rel. Thompson v. State, 2009-1731, p. 1 n.2 (La. App. 1 Cir. 4/1/10), 2010 WL 1254715 (litigant proceeding with IFP status in pre-2014 expungement case).
- 2Act No. 145, 2014 La. Acts 19–20.
- 3Act No. 404, 2018 La. Acts 1.
- 4See Thompson, 2009-1731, p. 1 n.2, 2010 WL 1254715.
- 5For a more detailed discussion of the IFP process in expungement proceedings, see Section 6.4 of this manual’s chapter on expungements in Louisiana. For litigation surrounding fee waivers and IFP status, see E.B. v. Landry (E.B. I), CV 19-862-JWD-SDJ, 2021 WL 1201667 (M.D. La. Mar. 30, 2021); E.B. v. Landry (E.B. II), CV 19-862-JWD-SDJ, 2022 WL 1144834 (M.D. La. Apr. 18, 2022).