(2) In forma pauperis means the permission given by the court for a party to proceed without prepayment of fees and costs or security.

Annotations

The "fees" specified in subsection (2) of this section do not include a party's attorney fees. State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
The plain language of the in forma pauperis statutes, taken as a whole, does not excuse a litigant who seeks the status of a pauper from paying the cost of a premium for a replevin bond pursuant to section 25-1098. Jacob v. Schlichtman, 261 Neb. 169, 622 N.W.2d 852 (2001).
Although jurisdiction is vested in an appellate court upon timely filing of a notice of appeal and an affidavit of poverty, some duties are still required of the lower court. This section requires the lower court to act if it determines that the allegations of poverty are untrue. In re Interest of Noelle F. & Sarah F., 249 Neb. 628, 544 N.W.2d 509 (1996).
Generally, in the absence of good cause evident in the record, it is necessary for a party appealing to personally sign the affidavit in support of her or his motion to proceed in forma pauperis. Mere absence from the jurisdiction of the court from which the appeal is being taken, without more, does not show good cause for a party's failure to sign a poverty affidavit. In re Interest of T.W. et al., 234 Neb. 966, 453 N.W.2d 436 (1990).
As an alternative to depositing a docket fee, a person who is unable to pay the required fee may file an affidavit of poverty and proceed with an appeal in forma pauperis. State v. Hunter, 234 Neb. 567, 451 N.W.2d 922 (1990).
In order to perfect an appeal in forma pauperis, all that is necessary to confer jurisdiction on the Supreme Court is to file a notice of appeal and an affidavit signed by the appellant, as required by this section. In re Interest of N.L.B., 234 Neb. 280, 450 N.W.2d 676 (1990).
Courts must make specific findings of fact that establish the expected fees and costs and the ability of the appellant to pay those costs within the time required before denying the appellant in forma pauperis status for an appeal under this section. Fine v. Fine, 4 Neb. App. 101, 537 N.W.2d 642 (1995).
Where, after petitioner's appeal was dismissed by Nebraska Supreme Court for failure to deposit cash or bond and United States Supreme Court granted certiorari, sections 25-2301 to 25-2307 were enacted permitting appeal in forma pauperis, judgment was vacated, and cause remanded for reconsideration. Huffman v. Boersen, 406 U.S. 337 (1972).

Any county or state court, except the Nebraska Workers' Compensation Court, may authorize the commencement, prosecution, defense, or appeal therein, of a civil or criminal case in forma pauperis. An application to proceed in forma pauperis shall include an affidavit stating that the affiant is unable to pay the fees and costs or give security required to proceed with the case, the nature of the action, defense, or appeal, and the affiant's belief that he or she is entitled to redress.

Annotations

The timing of the appellant's execution of the poverty affidavit is not, like an "affiant" personally signing the "affidavit," fundamental to the concept of an "affidavit" set forth in this section. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
By obtaining permission to proceed in forma pauperis, a party is not granted the payment of his or her attorney fees. State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
In a juvenile’s appeal from a delinquency proceeding, the poverty affidavit of the juvenile’s parent may be filed in support of the juvenile’s request to proceed in forma pauperis, and a parent is a party who may state a belief that the juvenile is entitled to relief. In re Interest of Edward B., 285 Neb. 556, 827 N.W.2d 805 (2013).
The filing of a poverty affidavit, properly confirmed by oath or affirmation, serves as a substitute for the docket fee for an appeal. An in forma pauperis appeal is perfected when the appellant timely files a notice of appeal and an affidavit of poverty. In re Interest of Edward B., 285 Neb. 556, 827 N.W.2d 805 (2013).
Failure to file an application separate from the poverty affidavit under this section does not divest the court of jurisdiction. State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001).
This section does not require that a separate application to proceed in forma pauperis be filed in addition to the poverty affidavit as long as the poverty affidavit itself contains some indication that a defendant is requesting or applying for in forma pauperis status. State v. Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001).
If a request to proceed in forma pauperis is granted by the district court, an appellate court obtains jurisdiction when the notice of appeal is timely filed, and any failure of the affidavit to state the nature of the action or that the affiant is entitled to redress under this section will not divest the court of jurisdiction. State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000).
The absence of language in a poverty affidavit indicating the nature of the action being appealed and that the affiant is entitled to redress will not divest an appellate court of jurisdiction over the appeal where the district court has already granted the application for in forma pauperis status on appeal. State v. Grant, 9 Neb. App. 919, 623 N.W.2d 337 (2001).

(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.

Annotations

1. General

2. Appeals

3. 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).
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).
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. In re Change of Name of Pattangall, 23 Neb. App. 131, 868 N.W.2d 816 (2015).
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, or upon objection by an interested party, to deny in forma pauperis status on the basis that the legal positions asserted by the applicant are frivolous or malicious. Gray v. Kenney, 22 Neb. App. 739, 860 N.W.2d 214 (2015).
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. Appeals

The right to interlocutory appeal of the denial of in forma pauperis status in subsection (1) of this section applies only to denials made pursuant to the two bases for denial set forth in that subsection. Robinson v. Houston, 298 Neb. 746, 905 N.W.2d 636 (2018).
A petitioner for habeas corpus relief whose initial motion to proceed in forma pauperis was denied and who takes a timely interlocutory appeal from that denial, accompanied by a motion to proceed in forma pauperis on appeal, is not required to file a second appeal where the district court erroneously denies the second in forma pauperis motion in order to obtain appellate review of the initial denial. Campbell v. Hansen, 298 Neb. 669, 905 N.W.2d 519 (2018).
When an in forma pauperis application is denied and the applicant seeks leave to proceed in forma pauperis in order to obtain appellate review of that denial, the trial court does not have authority to issue an order that would interfere with such appellate review. Campbell v. Hansen, 298 Neb. 669, 905 N.W.2d 519 (2018).
A trial court does not have authority to deny an in forma pauperis application once an in forma pauperis application is denied and the applicant wishes to seek interlocutory appellate review of the denial. Mumin v. Frakes, 298 Neb. 381, 904 N.W.2d 667 (2017).
A trial court has the authority to deny an in forma pauperis application requested to commence, prosecute, defend, or appeal a case if the court finds the applicant has sufficient funds or the legal positions being asserted therein are frivolous or malicious. Mumin v. Frakes, 298 Neb. 381, 904 N.W.2d 667 (2017).
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); In re Change of Name of Pattangall, 23 Neb. App. 131, 868 N.W.2d 816 (2015); Gray v. Kenney, 22 Neb. App. 739, 860 N.W.2d 214 (2015).
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).
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).

3. 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 frivolous legal position is one wholly without merit, that is, without rational argument based on the law or on the evidence. In re Change of Name of Pattangall, 23 Neb. App. 131, 868 N.W.2d 816 (2015); Gray v. Kenney, 22 Neb. App. 739, 860 N.W.2d 214 (2015); Tyler v. Nebraska Dept. of Corr. Servs., 13 Neb. App. 795, 701 N.W.2d 847 (2005).
For the purposes of the statute governing applications to proceed in forma pauperis, a "frivolous legal position" is one wholly without merit, that is, without rational argument based on the law or on the evidence. Lenz v. Hicks, 20 Neb. App. 431, 824 N.W.2d 769 (2012).
The former clients' action against the attorney was not frivolous, and thus, the denial of their petition to proceed in forma pauperis for the failure to plead a cause of action was not warranted; liberally construed, the former clients' action alleged that the attorney committed legal malpractice in his representation of them in a bankruptcy case. Lenz v. Hicks, 20 Neb. App. 431, 824 N.W.2d 769 (2012).
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).
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).

In any civil or criminal case in which a party is permitted to proceed in forma pauperis, the court shall direct the responsible officer of the court to issue and serve all the necessary writs, process, and proceedings and perform all such duties without charge.

In any civil or criminal case in which a party is permitted to proceed in forma pauperis, the court shall direct that the expense of process by publication, if such process is required by the court, be paid by the county in the same manner as other claims are paid.

In any civil or criminal case in which a party is permitted to proceed in forma pauperis, the court may order witnesses to be subpoenaed if the court finds that they have evidence material and necessary to the case and that they are within the judicial district in which the court is held or within one hundred miles of the place of trial. In such case the process and the fees of the witnesses shall be paid by the county in the same manner as other claims are paid.

In civil or criminal cases in which a party is permitted to proceed in forma pauperis, the court shall direct that the expenses of printing the record on appeal, if such printing is required by the appellate court, be paid by the county in the same manner as other claims are paid.

Annotations

To be effective, a poverty affidavit must show on its face, by the certificate of an authorized officer before whom it is taken, evidence that it was duly sworn to by the party making the affidavit. State v. Hunter, 234 Neb. 567, 451 N.W.2d 922 (1990).

In any civil or criminal case in which a party is permitted to proceed in forma pauperis, the court shall order transcripts to be furnished without cost if the suit or appeal is not frivolous but presents a substantial question and if the transcript is needed to prepare, present, or decide the issue presented by the case or appeal. Such costs shall be paid by the county in the same manner as other claims are paid.

In any civil or criminal case in which a party is permitted to proceed in forma pauperis, on appeal the court shall direct that the expense of printing of the appellate briefs, if such printing is required by the court, be paid by the county in the same manner as other claims are paid.

Annotations

The expense of photocopying is included in the expense of "printing", which is required under this section to be paid by the county when a party has been permitted to proceed in forma pauperis. Heathman v. Kenney, 263 Neb. 966, 644 N.W.2d 558 (2002).
A district court has jurisdiction to hear a motion for reimbursement of costs sought under this section, and an order entered thereon is appealable as a summary application in an action after judgment. State v. Patterson, 18 Neb. App. 255, 778 N.W.2d 756 (2010).
Neither this section nor Heathman v. Kenney, 263 Neb. 966, 644 N.W.2d 558 (2002), support a conclusion that a request for reimbursement of printing costs must be made during the pendency of the appeal. State v. Patterson, 18 Neb. App. 255, 778 N.W.2d 756 (2010).
The words "on appeal" in this section follow the requirement that a party be permitted to proceed in forma pauperis and precede the requirement that the county pay for printing of the appellate briefs; therefore, the logical interpretation is that the expense of printing of appellate briefs is to be reimbursed to a party who is allowed to proceed in forma pauperis on appeal. State v. Patterson, 18 Neb. App. 255, 778 N.W.2d 756 (2010).

In the event any person prosecutes or defends a case in forma pauperis successfully, any and all cost deferred by the court under sections 25-2301 to 25-2310 shall be first satisfied out of any money paid in satisfaction of judgment.

Anyone who fraudulently fails to disclose material assets or income for the purpose of invoking the privileges of sections 25-2301 to 25-2310 is guilty of perjury and shall, upon conviction thereof, be punished as provided in section 28-915.