Utah Courts
UCJA Rule 4-508 (Code of Judicial Administration)
UCJA Rule 4-508 (Code of Judicial Administration)
Rule 4-508. Guidelines for Ruling on a Motion to Waive Fees.
Intent:
To promote statewide consistency in deciding motions to waive fees in civil cases and in the expungement of criminal records in which the moving party is not incarcerated.
Applicability:
This rule applies to all civil and small claims cases and in the expungement of criminal records in which the moving party is not incarcerated.
This rule applies to all juvenile court cases in which the moving party is not incarcerated.
As used in this rule “fee waiver” and similar phrases include waiving the court filing fee and any ancillary fees in full or in part, as may be ordered by the judge.
Statement of the Rule:
(1) Motion to waive fees.The moving party must complete a Motion to Waive Fees approved by the Judicial Council’s Standing Committee on Court Forms. If requested by the court, the moving party must provide supporting documentation of the claims made in the affidavit. In juvenile court, the minor or a minor’s parent, guardian or authorized representative may move to waive fees.
(1)(A) Upon the filing of a Motion to Waive Fees, the court, sheriff or any other provider of a service offered by or through a government entity shall do what is necessary and proper as promptly as if the fee had been fully paid.
(1)(B) A motion to waive fees may be decided without notice to the other parties, requires no response, request to submit for decision or hearing. The court will review the affidavit and make an independent determination whether the fees should be waived. The court should apply a common sense standard to the information and evaluate whether the information is complete, consistent and true. Section 78A-2-304 requires a party to pay a full or partial fee if the financial affidavit and any further questioning demonstrate the party is reasonably able to pay a fee.
(2) Ability to pay. A party is unable to pay a fee if the moving party:
(2)(A) receives gross monthly income that is at or below 150% of the poverty guidelines updated periodically in the Federal Register by the U.S. Department of Health and Human Services under the authority of 42 U.S.C. 9902(2);
(2)(B) receives benefits from a means-tested government program, including the Family Employment Program, Temporary Assistance to Needy Families, Supplemental Security Income, the Supplemental Nutrition Assistance Program, or Medicaid;
(2)(C) receives legal services from a nonprofit provider or a pro bono attorney through the Utah State Bar; or
(2)(D) has insufficient income or other means to pay the necessary fees and costs or security without depriving the individual’s family of food, shelter, clothing, or other necessities.
(3) Insufficient income. If the reason for the moving party’s inability to pay is insufficient income under paragraph (2)(D), the court must consider the moving party’s:
(3)(A) identity and residence;
(3)(B) amount of income, including any government financial support, alimony, or child support (but not government programs where it would be unlawful to do so, such as the Supplemental Nutrition Assistance Program under 7 CFR 272.1(a));
(3)(C) assets owned, including real and personal property;
(3)(D) business interests;
(3)(E) accounts receivable;
(3)(F) securities, checking and savings account balances;
(3)(G) debts; and;
(3)(H) monthly expenses.
(4) Inquiry. At the time of hearing the cause, the court must question the moving party as to the moving party’s ability to pay.
(5) Private counsel. If the moving party is represented by private counsel, the motion to waive fees may be granted in proportion to the attorney’s discount of the attorney fee. The moving party’s attorney must provide an affidavit describing the fee agreement and what percentage of the attorney’s normal, full fee is represented by the discounted fee.
(6) Ruling. A motion to waive fees should be ruled upon within ten days after being filed.
(6)(A) If the fee is fully waived, the court, sheriff or any other provider of a service offered by or through a government entity shall do what is necessary and proper as promptly as if the fee had been fully paid.
(6)(B) If the fee is not fully waived, the court, sheriff or any other provider of a service offered by or through a government entity may require payment of the fee before doing what is necessary and proper. If the service has already been performed, the court, sheriff or service provider may do what is necessary and proper to collect the fee, including dismissal of the case.
(6)(C) If the fee is not fully waived, the court shall notify the party in writing of the fee amount, the procedure to challenge the fee, and the consequences of failing to pay the fee.
(6)(D) If the motion is rejected because of a technical error, such as failure to complete a form correctly or to attach supporting documentation, the court shall notify the moving party, and the moving party may file a corrected motion and affidavit within 14 days after being notified of the decision.
(7) Review. In addition to any statutory remedies, an order granting a fee waiver may be reviewed at any time if the court has jurisdiction of the case. If the court determines, after waiving a fee, that the moving party is reasonably able to pay the fee, including from the proceeds of a judgment, the court may modify its previous order. The court may allocate the fee among the parties under Utah Rule of Civil Procedure 54, Utah Code Section 81-1-203, or as otherwise provided by law.
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