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| Montana Administrative Register Notice 23-2-248 | No. 19 10/13/2017 | |
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BEFORE THE DEPARTMENT OF JUSTICE OF THE STATE OF MONTANA
TO: All Concerned Persons
1. The Department of Justice proposes to amend the above-stated rule.
2. The Department of Justice will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Justice no later than 5:00 p.m. on October 27, 2017, to advise us of the nature of the accommodation that you need. Please contact J. Stuart Segrest, Department of Justice, P.O. Box 201401, Helena, Montana, 59620-1401; telephone (406) 444-2026; fax (406) 444-3549; or e-mail [email protected].
3. The rule as proposed to be amended provides as follows: [following is the rule in its current form]
23.2.301 AFFIDAVIT OF INDIGENCE
AFFIDAVIT OF INDIGENCE AND ORDER
ANSWER ALL QUESTIONS. USE N/A IF NOT APPLICABLE
STATE OF MONTANA ) :ss. County of _______________________ )
I, _______________________ , being first duly sworn, depose and say: That I have a good cause of action or defense but am unable to pay the costs or get security to secure the cause of action or defense. I request the court or administrative tribunal to waive the costs and approve indigence status. I declare the following:
I. PERSONAL INFORMATION
Name Address Telephone _______________ Birthdate ________ Age ___ SSN Employed Yes ___ No ____ Self-Employed Yes _____ No Employer's name & address
Month last employed ________________ Job Single _____ Married ______ Divorced ____ Separated Dependents? Spouse _________ Number of children Spouse's name Spouse's birthdate ____________ Age _______ Spouse's SSN Spouse's employer & address
Are you sharing expenses with anyone? Yes ___________ No Explain Are you sharing income with anyone? Yes ________ No Explain
II. INCOME
Income available: My wages or salary $ ___________________ AFDC $ Other wages/salary $ ___________________ Unemployment $ Workers' Comp $ ___________________ SSI $ Food Stamps $ ___________________ Medicaid $ Pension $ ___________________ Retirement $ Child support $ ___________________ Other Income $ Total Household Income: Last month $ _____________ Previous 12 months $
III. ASSETS
A. Motor vehicles? Yes ___________ No _____________ How many? Spouse's motor vehicles Is/are vehicle(s) paid for? Yes ________ No If not, how much do you owe? $ Year, make and model
B. Do you or your spouse own any land or other real estate or are you or your spouse buying any? Yes __________ No What is the approximate value? How much did you pay for it? $________________ When? Is it paid for? Yes ________ No _________ If not, how much do you or your spouse owe?
C. Checking accounts? Yes _________ No ___________ $ Savings accounts? Yes _________ No ___________ $ Bank Stocks or bonds? Yes _________ No ___________ $ Wages due but not yet received $ Money owed to me or my spouse $ Guns, boats, sporting equipment, trailer, camper, or tools $ Stereo or TV $ Furniture & appliances $ Other personal property $ Specify:
IV. OBLIGATIONS/DEBTS
Do you or your spouse have any outstanding debts or obligations: (specify and list amount):
I further declare that I am the person named above, that I have read the foregoing questions and information and know the same to be true of my own knowledge, AND THAT IF ANY PART OF THE ABOVE IS MADE FALSELY I AM SUBJECT TO PROSECUTION FOR PERJURY.
Signature of Requestor
SUBSCRIBED AND SWORN TO before me this ______________ day of ______________________, 19___.
Notary Public for the State of Montana Residing at ________________, Montana My Commission expires
ORDER
Indigence status is hereby denied/granted.
DATED: _____________________________
Judge/Administrative Officer
[following is the rule in its proposed form]
23.2.301 STATEMENT OF INABILITY TO PAY COURT COSTS AND FEES
____________________________________ Name _____________________________________ Mailing Address _____________________________________ City State Zip Code _____________________________________ Phone Number _____________________________________ E-mail Address (optional) Appearing without a lawyer
☐ MONTANA ___________ JUDICIAL DISTRICT COURT, ___________ COUNTY ☐ IN THE JUSTICE COURT OF _____________ COUNTY, STATE OF MONTANA ☐ IN THE MUNICIPAL OR CITY COURT OF ______________, MONTANA
I have a good cause of action or defense but am unable to pay filing or other court fees. I request the court waive the costs and fees. I provide the following information about my income and expenses.
My full legal name is: ___________________________. I was born in this month _____________ and this year ___________.
☐ I am represented by an entity that provides free legal services to low-income persons.
Or
☐ I am represented by a volunteer/pro bono attorney, and am financially eligible for free legal services. (Attach a certificate of eligibility from legal aid organization.) [If you checked either box above, skip to the bottom of this form, and sign it. You don’t need to fill out pages 2, 3, and 4. If you did not check either box above, you may still qualify for a fee waiver—please continue to fill out pages 2, 3, and 4 of this form so the Court has the information it needs to decide if you qualify for the fee
waiver.] I. INCOME
Do you receive any of these benefits [check the box for each benefit you receive]? ☐ SNAP ☐ TANF ☐ SSI ☐ Medicaid ☐ WIC ☐ LIEAP
· If you checked a box, skip to the bottom of this form, and sign it. You don’t need to fill out the rest of this form. · If no, then fill in the chart below with the income you receive. · If you or your spouse don′t receive income from a listed source, put a "0" in the blank for that amount per month.
If you are unemployed, when were you last employed? _______________________ Your job?___________________________________________________________ How many persons, if any, depend on you financially? If none, then write ′N/A′ below. [Attach another page if needed.]
II. ASSETS
What property do you own, along with your spouse, if married and not separated and not filing for dissolution? Fill in the chart below, for each item that you could sell for $600 or more. If you don′t own an item listed, write "N/A" in the "Value" column for that item.
* Value is the amount the item would sell for less the amount you still owe on it, if anything
III. MONTHLY EXPENSES
What bills do you (and your spouse, if married) actually pay each month? Fill in the chart below. If you don’t have a monthly expense that′s listed in the chart, write "0" in the amount column for that expense.
IV. OTHER INFORMATION -- optional
If you have additional information that you want the court to consider about your inability to pay court costs, attach another page called "Additional Information." Check here if you attach another page: ☐
I declare under penalty of perjury and under the laws of the State of Montana that the information in this document is true and correct. I understand that it is a crime to give false information in this document.
Date: _______________ City __________________________ State ___________
Signature: _______________________________
☐ MONTANA ___________ JUDICIAL DISTRICT COURT, ___________ COUNTY ☐IN THE JUSTICE COURT OF _____________ COUNTY, STATE OF MONTANA ☐IN THE MUNICIPAL OR CITY COURT OF ______________, MONTANA
Warning! Read carefully the section checked below. It is a court order.
☐ Waiver of court costs is Granted. Declarant shall proceed without payment of court fees or costs. ☐ Temporary Waiver of court costs is Granted. Declarant may file without payment of court fees or costs, but the Court may determine at a later time that the declarant has the ability to pay all fees or costs and will require declarant to do so. ☐ Temporary Waiver of fees is Granted. Declarant may file without payment of court fees or costs, but must appear before the Court at ________ a.m/p.m. on the _____ day of ________________ and show cause why the declarant lacks the ability to pay all fees or costs. Warning! If this third box is checked, you must come to court on the date ordered above. If you don′t come, the judge will deny your request to waive court costs, and you will have to pay the court costs. ☐ Waiver of Fees and costs is Denied. Waiver is denied based on the following: __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ Ordered this _____ day of ______________________, 20_____. __________________________________ Presiding Judge
AUTH: 25-10-404, MCA IMP: 25-10-404, MCA
REASON: This rule amendment is reasonably necessary to address deficiencies with the current financial statement form, as requested by the Access to Justice Commission. As noted by the Access to Justice Commission, the current form is not uniformly used. The current form also does not provide a section to indicate that the person is represented by a legal services organization, and thus not required to file a financial statement under 25-10-404(3), MCA. The amended form is also easier to understand than the current form, which will facilitate its use by pro se litigants. Finally, the amended form provides a separate, standalone order, which will assist the court in timely addressing fee waiver applications.
4. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to: J. Stuart Segrest, Department of Justice, P.O. Box 201401, Helena, Montana, 59620-1401; telephone (406) 444-2026; fax (406) 444-3549; or e-mail [email protected], and must be received no later than 5:00 p.m., November 10, 2017.
5. If persons who are directly affected by the proposed action wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to J. Stuart Segrest at the above address no later than 5:00 p.m., November 10, 2017.
6. If the agency receives requests for a public hearing on the proposed action from either 10 percent or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those directly affected has been determined to be 25.
7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 4 above or may be made by completing a request form at any rules hearing held by the department.
8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
9. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rule will not significantly and directly impact small businesses.
/s/ Matthew T. Cochenour /s/ Timothy C. Fox Matthew T. Cochenour Timothy C. Fox Rule Reviewer Attorney General Department of Justice
Certified to the Secretary of State October 2, 2017.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
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