Federated States of Micronesia v Moses [2004] FMSC 50; 12 FSM Intrm. 619 (Chk. 2004) (2 September 2004)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as FSM v Moses, [2004] FMSC 50; 12 FSM Intrm 619 (Chk 2004)

FEDERATED STATES OF MICRONESIA
Plaintiff

vs.

KIMIS MOSES
Defendant.

CRIMINAL CASE NO. 2002-1500

ORDER AND MEMORANDUM

Martin G. Yinug
Associate Justice

Decided: September 2, 2004

APPEARANCE:

For the Defendant:
Joey J. Sapelalut, Esq.
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

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HEADNOTES

Appellate Review - In Forma Pauperis
A general court order that provides that when an indigent party is represented by the Office of the Public Defender in in forma pauperis proceedings, the transcript fee will be reduced to $1.25 per page (payable by the public agency and not by the defendant personally) has no effect on Appellate Procedure Rule 24(a). It merely establishes a reduced transcript fee to be paid by the Office of the Public Defender when it represents an indigent party. It does not automatically classify every client of that office as an indigent party. FSM v. Moses, [2004] FMSC 50; 12 FSM Intrm. 619, 621 (Chk. 2004).

Appellate Review - In Forma Pauperis
In order to proceed in forma pauperis on appeal, an appellant must file an affidavit showing his inability to pay fees and costs or give security, his belief that he is entitled to redress, and a statement of the issues he intends to present on appeal. FSM v. Moses, [2004] FMSC 50; 12 FSM Intrm. 619, 621 (Chk. 2004).

Appellate Review - In Forma Pauperis
To show that a party is indigent the affidavit of a person seeking in forma pauperis status must contain more detail than a mere recitation that the affiant is poor and cannot pay. The affidavit should, at minimum, outline the affiant’s income, necessary expenditures and liabilities, savings, the value of any real or personal property the affiant owns individually, and the value of the affiant’s ownership interest in any real or personal property in which the affiant shares ownership with others. FSM v. Moses, [2004] FMSC 50; 12 FSM Intrm. 619, 621 (Chk. 2004).

Appellate Review - In Forma Pauperis
When seeking in forma pauperis status, a party’s affidavit, besides containing a financial statement, must also contain the party’s belief that the party is entitled to redress, and a statement of the issues which the party intends to present on appeal. This is because for a litigant to proceed on appeal in forma pauperis, not only must the litigant be economically eligible, the appeal must be made in good faith and not be frivolous. For an issue not to be frivolous, it does not have to be meritorious. The issue only has to be colorable. FSM v. Moses, [2004] FMSC 50; 12 FSM Intrm. 619, 621 (Chk. 2004).

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COURT’S OPINION

MARTIN G. YINUG, Associate Justice:

On August 16, 2004, defendant Kimis Moses filed and served his Motion for Proceeding in Forma Pauperis and Memorandum in Support. No supporting affidavit is attached. No response has been filed.

The motion asks that Moses be granted in forma pauperis status for his pending appeal and asserts that General Court Order 1985-7, § 4(a), which states tha]here]here the indigent party is represented by the Office of the Public Defender . . . in formperisperis pri> proceedings, the transcript fee she reduced to $1.25 per page, payable by the public agency rncy rendering legal representation, and not by the defendant personally," rs unsary the affidaviidavit reqt required by Appellate Procedure Rule 24(a) concerning the applicant’s inability to pay.

Moses misunderstands the General Court Order’s import and application. First, General Court Order 1985-7, § 4(s been superseded by an i an identical provision in General Court Order 1991-3, § 4(a). Secneither General Coal Court has any effect on Appellate Procedure Rule 24(a). The General Court Orders merely establisablish a reduced transcript fee to be paidhe Office of the Public Defender when it represents an indi indigent party. It does not automatically classify every client of that office as an indigent party. Such certification can only be done in compliance with Appellate Rule 24(a). Furthermore, the affidavit required by that rule must contain more than just a statement about the affiant’s inability to pay.

Appellate Rule 24(a) requires that an in forma pauperis applicant’s affidavit show "in the detail prescribed by Form 2 of the Appendix of Forms, the party’s inability to pay fees and costs or to give security therefor, the party’s belief that the party is entitled to redress, and a statement of the issues which the party intends to present on appeal." As previously noted by this court,

there is currently no Form 2 attached to the Appellate Rules. If there were, it presumably would resemble the Form 4 (Affidavit to Accompany Motion for Leave to Appeal in Forma Pauperis) attached to the U.S. Federal Rules of Appellate Procedure current in 1991, which was when the present FSM Rules of Appellate Procedure (largely derived from the similar U.S. federal rules) were adopted.

Lebehn v. Mobil Oil Micronesia, Inc., [2002] FMSC 8; 10 FSM Intrm. 515, 517 (Pon. 2002). More detail is required than a mere recitation that the affiant is poor and cannot pay. See id. at 517-18. An affidavit of a person seeking in forma pauperis status should, at minimum, outline the affiant’s income, necessary expenditures and liabilities, savings, the value of any real or personal property the affiant owns individually, and the value of the affiant’s ownership interest in any real or personal property in which the affiant shares ownership with others.

The affidavit must also contain "the party’s belief that the party is entitled to redress, and a statement of the issues which the party intends to present on appeal." FSM App. R. 24(a). This is because for a litigant to proceed on appeal in forma pauperis, not only must the litigant be economically eligible, the appeal must be made in good faith and not be frivolous. Lebehn, 10 FSM Intrm. at 517 ("To proceed on appeal in forma pauperis, a litigant must be economically eligible, and his appeal must not be frivolous."). "For an issue not to be frivolous, it does not have to be meritorious. The issue only has to be colorable." Id. (citations omitted).

The motion to proceed in forma pauperis is therefore denied without prejudice. It may be renewed with a proper supporting affidavit.