Minn. R. Civ. App. P. 109.05
As amended through October 28, 2024
The time periods for a party to pay the filing fee, post a cost bond if required under Rule 107 or Rule 116, and file a transcript certificate are suspended during the pendency of that party's timely motion to proceed in forma pauperis.
Minn. R. Civ. App. P. 109.05
Rule 109 is a new rule, adopted in 2000. It is intended to collect and harmonize various provisions that apply to the procedure for in forma pauperis appeals. It is not intended to establish or modify any substantive rights to proceed in forma pauperis.
The rule requires that the application to proceed in forma pauperis in the Court of Appeals be submitted to the trial court for appropriate factual determinations. This requirement is consistent with the long-standing practice of the Court of Appeals. See, e.g., Maddox v. Department of Human Servs., 400 N.W.2d 136, 139 n.1 (Minn. App. 1987). This requirement is consistent with the general preference of having trial courts, rather than appellate courts, make factual findings, and also obviates any appearance that the appellate court has prejudged the merits of the appeal before the transcript, record and briefs have been prepared. Even without a transcript or briefs, the trial court will be familiar with the issues raised by the parties and may be familiar with their financial resources, and is, therefore, better able to make the required findings early in the appellate process. MINN. STAT. § 563.01, subd. 3 defines "indigence" to include those receiving public assistance, being represented by a legal services attorney or volunteer attorney program on the basis of indigence, or having an annual income not greater than 125% of the poverty level. See 42 U.S.C. § 9902(2).
The requirement that a party seeking in forma pauperis relief establish that his or her appeal (or position on appeal, if such relief is being sought by a respondent) is "not frivolous" does not require a showing that the party is likely to prevail on appeal and does not require the trial court to evaluate the likelihood of success on appeal. In forma pauperis status in civil commitment and juvenile proceedings is based solely on indigency, and an indigent party is not required to establish that the position to be taken in the appellate court is not frivolous.
Rule 109.04 establishes procedures for seeking leave to proceed in forma pauperis in the Supreme Court. It permits a motion based on an order granting in forma pauperis status from the court whose decision is to be reviewed if accompanied by an affidavit that the party remains indigent.
Rule 109.05provides for the suspension of the time periods to pay the filing fee, post a bond and file the transcript certificate while the trial court considers a motion to proceed in forma pauperis. A party who has made a timely motion to proceed in forma pauperis must file a copy of that motion with the appeal papers. The trial court must rule on the motion promptly and the party must inform the appellate court of the ruling, so that the appeal can proceed without delay.
Advisory Committee Comment - 2016 Amendments
Rule 109 is amended to clarify that, although the rules do not require the posting of a cost bond for most appeals, a bond may be required by the trial court upon motion, and is required by statute and Rule 116 for appeal proceedings seeking review of decisions of the Workers' Compensation Court of Appeals. In these circumstances where a bond may be required, the granting of an in forma pauperis motion would exempt the party from having to pay for the required bond.