2017 Nebraska Revised Statutes
Chapter 25 - COURTS; CIVIL PROCEDURE
25-2301.02 Application; objection; hearing; appeal.

25-2301.02. Application; objection; hearing; appeal.

(1) An application to proceed in forma pauperis shall be granted unless there is an objection that the party filing the application (a) has sufficient funds to pay costs, fees, or security or (b) is asserting legal positions which are frivolous or malicious. The objection to the application shall be made within thirty days after the filing of the application or at any time if the ground for the objection is that the initial application was fraudulent. Such objection may be made by the court on its own motion or on the motion of any interested person. The motion objecting to the application shall specifically set forth the grounds of the objection. An evidentiary hearing shall be conducted on the objection unless the objection is by the court on its own motion on the grounds that the applicant is asserting legal positions which are frivolous or malicious. If no hearing is held, the court shall provide a written statement of its reasons, findings, and conclusions for denial of the applicant's application to proceed in forma pauperis which shall become a part of the record of the proceeding. If an objection is sustained, the party filing the application shall have thirty days after the ruling or issuance of the statement to proceed with an action or appeal upon payment of fees, costs, or security notwithstanding the subsequent expiration of any statute of limitations or deadline for appeal. In any event, the court shall not deny an application on the basis that the appellant's legal positions are frivolous or malicious if to do so would deny a defendant his or her constitutional right to appeal in a felony case.

(2) In the event that an application to proceed in forma pauperis is denied and an appeal is taken therefrom, the aggrieved party may make application for a transcript of the hearing on in forma pauperis eligibility. Upon such application, the court shall order the transcript to be prepared and the cost shall be paid by the county in the same manner as other claims are paid. The appellate court shall review the decision denying in forma pauperis eligibility de novo on the record based on the transcript of the hearing or the written statement of the court.

Source

• Laws 1999, LB 689, § 4;
• Laws 2004, LB 1207, § 15.

Annotations

• 1. General

• 2. Frivolous or malicious complaints

• 1. General

• Under subsection (1) of this section, a trial court cannot deny in forma pauperis status based on the frivolous or malicious nature of the appeal where a defendant has a constitutional right to appeal in a felony case, and a hearing is required on an objection to a party's application for in forma pauperis status, whether the objection is based on the applicant's ability to pay or the applicant is asserting a frivolous position, except where the objection is made on the court's own motion on the grounds that the legal positions asserted by the applicant are frivolous or malicious. State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (2015).

• An appellate court obtains jurisdiction over an appeal challenging the denial of an application to proceed in forma pauperis upon the filing of a proper application to proceed in forma pauperis and a poverty affidavit with the party's timely notice of appeal. State v. Carter, 292 Neb. 16, 870 N.W.2d 641 (2015).

• A district court’s denial of in forma pauperis status is reviewed de novo on the record based on the transcript of the hearing or the written statement of the court. Peterson v. Houston, 284 Neb. 861, 824 N.W.2d 26 (2012).

• An appellate court obtains jurisdiction over an appeal upon the timely filing of a notice of appeal and a proper in forma pauperis application and affidavit, without literal payment of the fees, costs, or security mentioned in subsection (1) of this section. Glass v. Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004).

• Following a denial of an application to proceed in forma pauperis, under subsection (1) of this section, a party may either proceed with the trial action or appeal the ruling denying in forma pauperis status. Glass v. Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004).

• Under this section, there is a statutory right of interlocutory appellate review of a decision denying in forma pauperis eligibility. Glass v. Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004).

• Pursuant to subsection (1) of this section, in order to perfect his appeal, the appellant had 30 days from the district court's denial of his application to proceed in forma pauperis in which to file a docket fee with the clerk of the district court. Martin v. McGinn, 267 Neb. 931, 678 N.W.2d 737 (2004).

• This section supersedes the requirement set forth in Flora v. Escudero, 247 Neb. 260, 526 N.W.2d 643 (1995), that a court provide a hearing before denying any application to proceed in forma pauperis. Moore v. Nebraska Bd. of Parole, 12 Neb. App. 525, 679 N.W.2d 427 (2004).

• 2. Frivolous or malicious complaints

• The trial court properly denied leave to proceed in forma pauperis on the basis that the party asserted only frivolous legal positions in the party's underlying motion for postconviction relief. State v. Carter, 292 Neb. 16, 870 N.W.2d 641 (2015).

• The filing of an action in an improper venue does not make the legal position asserted by a plaintiff "frivolous or malicious" for purposes of in forma pauperis status. Castonguay v. Retelsdorf, 291 Neb. 220, 865 N.W.2d 91 (2015).

• When, pursuant to this section, a trial court denies leave to proceed in forma pauperis on its own motion on the ground that the party seeking leave is asserting legal positions which are frivolous or malicious, its order shall include the court’s reasons for such conclusion. Peterson v. Houston, 284 Neb. 861, 824 N.W.2d 26 (2012).

• A frivolous legal position pursuant to this section is one wholly without merit, that is, without rational argument based on the law or on the evidence. Except in those cases where the denial of in forma pauperis status would deny a defendant his or her constitutional right to appeal in a felony case, this section allows the court on its own motion to deny in forma pauperis status on the basis that the legal positions asserted by the applicant are frivolous or malicious, provided that the court issue a written statement of its reasons, findings, and conclusions for denial. This section contains no requirement that the court grant leave to amend the underlying petition before denying a request to proceed in forma pauperis. Cole v. Blum, 262 Neb. 1058, 637 N.W.2d 606 (2002).

• A court may not immediately deny an application to proceed in forma pauperis on the ground the proposed complaint is illegible, as such does not fulfill the requirement of this section that the court find that the complaint was actually frivolous or malicious as a prerequisite to denying the application. Tyler v. Natvig, 17 Neb. App. 358, 762 N.W.2d 621 (2009).

• A frivolous legal position is one wholly without merit, that is, without rational argument based on the law or on the evidence. Tyler v. Nebraska Dept. of Corr. Servs., 13 Neb. App. 795, 701 N.W.2d 847 (2005).

• Principles of liberal construction apply to the review of a denial of a motion to proceed in forma pauperis upon the ground that the complaint was frivolous. Tyler v. Nebraska Dept. of Corr. Servs., 13 Neb. App. 795, 701 N.W.2d 847 (2005).

• A court is not required to conduct a hearing before denying an application to proceed in forma pauperis if the court has objected to the application on its own motion on the ground that the legal positions asserted therein are frivolous or malicious, and if the court provides a written statement of its reasons, findings, and conclusions for denying the application to proceed in forma pauperis. Moore v. Nebraska Bd. of Parole, 12 Neb. App. 525, 679 N.W.2d 427 (2004).