Demo: Ability to Pay Language Comparison

Notes

I'm looking for model ability to pay language. -Montana's provision seems to apply before imposition. -Michigan and Colorado have a useful list of factors. -Process in Idaho streamlined. -Wisconsin has language on presumptions, e.g. receipt of means tested benefits.

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25/05/2017
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Wisconsin
Ability to pay provision

Wis. Stat. § 814.29(1); Security for costs, service and fees for indigents

1) (a) Except as provided in sub. (1m), any person may commence, prosecute or defend any action or special proceeding in any court, or any writ of error or appeal therein, without beingrequired to give security for costs or to pay any service or fee, upon order of the court based on a finding that because of poverty the person is unable to pay the costs of the action or special proceeding, or any writ of error or appeal therein, or to give security for those costs. (b) A person seeking an order under par. (a) shall file in the court an affidavit in the form prescribed by the judicial conference, setting forth briefly the nature of the cause, defense or appeal and facts demonstrating his or her poverty. (c) The finding and order of the court under par. (a) shall be in the form prescribed by the judicial conference. The court may deny the request for an order if the court finds that the affidavit states no claim, defense or appeal upon which the court may grant relief. (d) The court shall make a finding of poverty and issue an order under par. (a) if the affidavit demonstrates any of the following: 1. That the person is a recipient of means?tested public assistance, including aid to families with dependent children, relief funded by a relief block grant under ch. 49, relief provided by counties under s. 59.53 (21), medical assistance, supplemental security income, food stamps or benefits received by veterans under s. 45.40 (1m) or under 38 USC 501 to 562 [38 USC 1501 to 1562]. 2. That the person is represented by an attorney through a legal services program for indigent persons, including, without limitation, those funded by the federal legal services corporation, the state public defender or volunteer attorney programs based on indigence. 3. That the person is otherwise unable, because of poverty, to pay the costs of the action, proceeding or appeal or to give security for those costs. In determining the person’s ability under this subdivision to pay or give security for fees and costs, the court shall consider the person’s household size, income, expenses, assets and debts and the federal poverty guidelines under 42 USC 9902 (2).
Statutory definition of ability to pay

In determining the person’s ability under this subdivision
to pay or give security for fees and costs, the court shall
consider the person’s household size, income, expenses, assets
and debts and the federal poverty guidelines under 42 USC 9902
(2).

Burden of Proof
Burden on defendant to show inability to pay
Hearing Requirements

The defendant or person seeking an order not to pay security for costs files an affidavit to the court stating briefly the nature of the cause and evidence of their indigence. The court, by judicial conference, then makes a determination of defendant's poverty

Method of Determination
Determined by judge without hearing
Timeline
Not provided
Remedies / alternatives
Not provided
Mandatory
No

When Does It Apply

Type of Court:
Other
Level of Offense:
Traffic
Type of Charge:
Fee
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Michigan
Type of opinion
State court rule
Citation
Mich. Court R. 6.425(E)(3)(a)-(c)
Incarceration for Nonpayment.
When does this apply
Ability to pay
Question
Not provided
Brief Answer
Not provided
Language from the Rule
(a) The court shall not sentence a defendant to a term of incarceration, nor revoke probation, for failure to comply with an order to pay money unless the court finds, on the record, that the defendant is able to comply with the order without manifest hardship and that the defendant has not made a good faith effort to comply with the order.(b) Payment Alternatives. If the court finds that a defendant is unable to comply with an order to pay money without manifest hardship, the court may impose a payment alternative, such as a payment plan, modification of any existing payment plan, or waiver of part or all of the amount of money owed to the extent permitted by law.(c) Determining manifest hardship. The court shall consider the following criteria in determining manifest hardship: (i) Defendant’s employment status and history. (ii) Defendant’s employability and earning ability. (iii) The willfulness of the defendant’s failure to pay. (iv) Defendant’s financial resources. (v) Defendant’s basic living expenses, including but not limited to food, shelter, clothing, necessary medical expenses, or child support. (vi) Any other special circumstances that may have bearing on the defendant’s ability to pay.
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Idaho
Ability to pay provision

Idaho Code § 31-3220; Inability to pay fees — Definitions — Affidavit

(2) The court may authorize the commencement or defense of any action without prepayment of fees, costs or security, by any indigent person not a prisoner, providing: (a) The person files an affidavit that he is indigent as provided in subsection (3) of this section, and unable to pay fees, costs or give security; and (b) The court finds, after informal inquiry, that the person is indigent for the purpose of prepayment of fees, costs or security. (3) The affidavit shall contain complete information as to: (a) The person’s identity; (b) The nature and amount of his income; (c) His spouse’s income; (d) The real and personal property owned; (e) His cash or checking accounts; (f) His dependents; (g) His debts; (h) His monthly expenses; (i) The nature of the action; (j) The affiant’s belief that he is entitled to redress. The affidavit shall also contain the following statements: "I am unable to pay the court costs. I verify that the statements made in this affidavit are true and correct." The affidavit shall be sworn as required by law. (4) No fees, costs or security shall be waived at the commencement of an action if the court finds and certifies in writing that the action is frivolous, malicious or otherwise not taken in good faith. (5) Upon the filing of an affidavit as set forth in this section and a finding that the person is indigent, the court may direct that the expense of printing the record and/or transcript for use on appeal be paid out of the district court fund of the county in which the action was filed. (6) The officers of the court shall issue and serve all process, and perform all duties in cases in which the person is found by the court to be indigent. Witnesses shall attend as in other cases, and the same remedies shall be available in other civil cases. Payment of fees for service of process and witnesses, where required, shall be paid out of the district court fund of the county in which the action is filed. (7) The court may retroactively require payment for any fees, costs or security which may have been waived in the action if the court finds that any allegation contained in the affidavit of inability to pay fees is untrue, or if the court is satisfied that the action is frivolous or malicious. (8) Judgment may be entered for attorney fees and costs at the conclusion of the action as in other cases. If the cost of the transcript or printed record has been paid out of the district court fund for the prevailing party, that party may be taxed in favor of the district court fund.
Statutory definition of ability to pay

d) "Indigent" means a person who is not a prisoner, as defined in section 31-3220A, Idaho Code, and who is found by the court to be unable to pay fees, costs or give security for the purpose of prepayment of fees, costs or security in a civil action.

Burden of Proof
Burden on defendant to show inability to pay
Hearing Requirements

Files affidavit,

Method of Determination
Determined by judge after hearing
Timeline
At defendant's request before imposition of fine or fee
Remedies / alternatives

No prepayment of fees, costs or security required

Mandatory
Yes

When Does It Apply

Type of Court:
Other
Level of Offense:
Traffic
Type of Charge:
Fee
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Montana
Ability to pay provision

Mont. Code Ann. § 46-18-232; Payment of costs by defendant

The court may not sentence a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take into account the financial resources of the defendant, the future ability of the defendant to pay costs, and the nature of the burden that payment of costs will impose. A defendant who has been sentenced to pay costs and who is not in default in the payment may at any time petition the court that sentenced the defendant for remission of the payment of costs or of any unpaid portion of the costs. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may remit all or part of the amount due in costs or modify the method of payment.
Statutory definition of ability to pay
Not provided
Burden of Proof
Not provided
Hearing Requirements
Not provided
Method of Determination
Not provided
Timeline
Before imposition of fine or fee
Remedies / alternatives

Waive or reduce fee

Mandatory
Yes

When Does It Apply

Type of Court:
Other
Level of Offense:
Traffic
Type of Charge:
Fee
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Colorado
Ability to pay provision

Colo. Rev. Stat. § 18-1.3.702(4); Undue hardship considerations

In determining whether a defendant is able to comply with an order to pay a monetary amount without undue hardship to the defendant or the defendant's dependents, the court shall consider:(I) Whether the defendant is experiencing homelessness; (II) The defendant's present employment, income, and expenses; (III) The defendant's outstanding debts and liabilities, both secured and unsecured; (IV) Whether the defendant has qualified for and is receiving any form of public assistance, including food stamps, temporary assistance for needy families, Medicaid, or supplemental security income benefits; (V) The availability and convertibility, without undue hardship to the defendant or the defendant's dependents, of any real or personal property owned by the defendant; (VI) Whether the defendant resides in public housing; (VII) Whether the defendant's family income is less than two hundred percent of the federal poverty line, adjusted for family size; and (VIII) Any other circumstances that would impair the defendant's ability to pay.
Statutory definition of ability to pay

"the ability to comply with the court's order to pay a monetary amount due without undue hardship to the defendant or the defendant's dependents and that the defendant has not made a good-faith effort to comply with the order." " "a defendant or a defendant's dependents are considered to suffer undue hardship if he, she, or they would be deprived of money needed for basic living necessities, such as food, shelter, clothing, necessary medical expenses, or child support."

Burden of Proof
Not provided
Hearing Requirements
Not provided
Method of Determination
Determined by judge after hearing
Timeline
At enforcement of fine or fee
Remedies / alternatives
Not provided
Mandatory
Yes

When Does It Apply

Type of Court:
Other
Level of Offense:
Traffic
Type of Charge:
Supervision fee