H.B. 374

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FRIVOLOUS LAWSUITS AMENDMENTS
2 1998 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: David L. Gladwell
5 AN ACT RELATING TO FEES; REQUIRING INMATES TO PAY THE FULL FEES FOR
6 FILING CIVIL ACTIONS; AND MAKING TECHNICAL CORRECTIONS.
7 This act affects sections of Utah Code Annotated 1953 as follows:
8 AMENDS:
9 21-7-4.5, as enacted by Chapter 161, Laws of Utah 1996
10 21-7-4.6, as enacted by Chapter 161, Laws of Utah 1996
11 21-7-4.7, as enacted by Chapter 161, Laws of Utah 1996
12 Be it enacted by the Legislature of the state of Utah:
13 Section 1. Section 21-7-4.5 is amended to read:
14 21-7-4.5. Effect of filing affidavit -- Prisoner.
15 (1) [For purposes of] As used in this section, "prisoner" means a person who has been
16 convicted of a crime and is incarcerated for that crime or is being held in custody for trial or
17 sentencing.
18 (2) (a) Upon receipt of the oath or affirmation filed with any Utah court by a prisoner, the
19 court shall immediately request the institution or facility where the prisoner is incarcerated to
20 provide an account statement detailing all financial activities in the prisoner's trust account for the
21 previous six months or since the time of incarceration, whichever is shorter.
22 (b) The incarcerating facility shall:
23 (i) prepare and produce to the court the prisoner's six-month trust account statement,
24 current trust account balance, and aggregate disposable income[. Aggregate]; and
25 (ii) calculate aggregate disposable income [is calculated] by totaling all deposits made in
26 the prisoner's trust account during the six-month period and subtracting all funds automatically
27 deducted or otherwise garnished from the account during the same period.

1 (3) The court shall:
2 (a) review both the affidavit of impecuniosity and the financial account statement; and
3 [make an independent determination]
4 (b) based [on] upon the [information] review, independently determine whether or not the
5 prisoner is financially capable of paying all the regular fees and costs associated with filing the
6 action.
7 (4) [Where] When the court concludes that the prisoner is unable to pay full fees and costs,
8 the court shall assess [a] an initial partial filing fee equal to 50% of the prisoner's current trust
9 account balance or 10% of the prisoner's six-month aggregate disposable income, whichever is
10 greater.
11 (5) (a) After payment of the initial partial filing fee, the court shall require the prisoner to
12 make monthly payments of 20% of the preceding month's aggregate disposable income until the
13 regular filing fee associated with the civil action is paid in full.
14 (b) The agency having custody of the prisoner shall:
15 (i) garnish the prisoner's account each month; and
16 (ii) once the collected fees exceed $10, forward payments to the clerk of the court until the
17 filing fees are paid.
17a S (c) NOTHING IN THIS SECTION MAY BE CONSTRUED TO PREVENT THE AGENCY HAVING
17b CUSTODY OF THE PRISONER FROM WITHDRAWING FUNDS FROM THE PRISONER'S ACCOUNT TO
17c PAY COURT-ORDERED RESTITUTION. s
18 (6) Collection of the filing fees continues despite dismissal of the action.
19 (7) The filing fee collected may not exceed the amount of fees permitted by statute for the
20 commencement of a civil action or an appeal of a civil action.
21 Section 2. Section 21-7-4.6 is amended to read:
22 21-7-4.6. Notice of filing fee -- Prisoner and nonprisoner.
23 (1) [Upon any filing fee assessment when] When an affidavit of impecuniosity has been
24 filed and the court assesses an initial filing fee, the court shall immediately notify the litigant in
25 writing of:
26 (a) the [partial or full] initial filing fee required as a prerequisite to proceeding with the
27 action [and];

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28 (b) the procedure available to challenge the initial filing fee assessment as provided in
29 Section 21-7-4.7[.]; and
30 (c) the inmate's ongoing obligation to make monthly payments until the entire filing fee
31 is paid.

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1 (2) The court may not authorize service of process or otherwise proceed with the action,
2 except as provided in Section 21-7-4.7, until the [assessed] initial filing fee[, whether partial or
3 full,] has been completely paid to the clerk of the court.
4 Section 3. Section 21-7-4.7 is amended to read:
5 21-7-4.7. Filing fee challenge -- Prisoner and nonprisoner.
6 (1) Within ten days of receiving court notice requiring [a partial or full] an initial filing
7 fee under Section 21-7-4.6, the litigant may contest the fee assessment by filing a memorandum
8 and supporting documentation with the court demonstrating inability to pay the fee.
9 (2) The court shall review the memorandum and supporting documents challenging the
10 fee assessment for facial validity.
11 (3) The court may reduce the [assessed] initial filing fee, authorize service of process, or
12 otherwise proceed with the action without prepayment of costs and fees if the memorandum shows
13 the litigant:
14 (a) has lost his source of income;
15 (b) has unaccounted nondiscretionary expenses limiting his ability to pay;
16 (c) will suffer immediate irreparable harm if the action is unnecessarily delayed; or
17 (d) will otherwise lose the cause of action by unnecessary delays associated with securing
18 funds necessary to satisfy the assessed filing fee.
19 (4) Nothing in this section shall be construed to relieve the litigant from the ongoing
20 obligation of monthly payments until the filing fee is paid in full.




Legislative Review Note
as of 2-11-98 1:52 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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