Rule 23-114 - Free process in civil casesA.Eligibility. In any civil matter, if the court finds that a party is indigent or otherwise unable to pay a fee or fees payable to the court or the cost of service of process, the court may waive such fee or fees and the cost of service of process shall be paid by the state. (1) An applicant is presumed indigent if the applicant is the current recipient of aid from a state or federally administered public assistance program such as Temporary Assistance for Needy Families (TANF), General Assistance (GA), Supplemental Security Income (SSI), Disability Security Income (DSI), Department of Health, Case Management Service (DHMS), Food Stamps, Medicaid, or public assisted housing.(2) An applicant who is not presumptively indigent can nevertheless establish indigency by showing in the application that the applicant's annual gross income does not exceed one hundred eighty-five percent (185%) of the current federal poverty guidelines established by the United States Department of Labor.(3) A presumption of indigency under this rule does not require the court to grant free process if it appears from the application that the applicant is otherwise able to pay.(4) Even if an applicant cannot establish indigency, the court may still grant full or partial free process if, in the court's discretion, the court finds that the applicant is not reasonably able to pay fees or costs. B.Procedure.(1) A party seeking free process shall file with the court clerk an application for free process with an attached affidavit of indigency and a proposed order for free process. The application, affidavit and proposed order shall be in the form set forth in Forms 4-222 and 4-223 NMRA. The court may decide an application for free process ex parte and without hearing. If an application for free process is denied, the court clerk shall, upon the request of the applicant, schedule a hearing on the application.(2) Upon the filing of an attorney certificate in the form set forth in Form 4-224 NMRA, certifying that a party (a) is represented by (i) an attorney pursuant to a referral from a local pro bono committee for a judicial district created pursuant to Supreme Court order, (ii) a legal services organization,(iii) a nonprofit organization, a department of which has as its primary purpose the furnishing of legal services to indigent persons, (iv) private counsel working on behalf of or under the auspices of such organization, or (b) has met the income qualifications of a legal services organization and attended a training program designed and presented by the legal services organization to assist self-represented litigants in filing their own action in court, the court shall enter an order providing that all fees and costs relating to filing the action and service of process shall be waived without the necessity of an application for free process or affidavit of indigency from the party. In the court's discretion, the order may provide that any applicable alternative dispute resolution fee is not waived.(3) Upon the award of any judgment to a party allowed free process, the court may order the party to pay court fees and costs. If a pro se party becomes represented subsequent to being allowed free process, the party shall submit another application for free process along with an affidavit and proposed order. If a case is closed and reinstatement or reopening sought, the party shall submit another application, affidavit and proposed order.(4) An attorney representing a party allowed free process must also file a certificate stating that no fee has been received, and promising that in case any fee is paid for legal services, the attorney shall first deduct court fees and service of process costs and pay them to the court administrator. (5) If at any time the court discovers that information in an application for free process was false, misleading, inaccurate, or incomplete at the time the application was submitted, and that an order of free process was improvidently granted, the court may require the applicant or other appropriate party to pay for any costs or fees that were waived. The court may exercise its discretion to impose sanctions for failure to comply with an order of the court issued pursuant to this subparagraph, up to and including dismissal. Approved by Supreme Court Order 07-8300-44, effective 2/25/2008; as amended by Supreme Court Order 08-8300-30, effective 11/17/2008; by Supreme Court Order No. 10-8300-043, effective 2/9/2011. ANNOTATIONS The 2010 amendment, approved by Supreme Court Order No. 10-8300-043, effective February 9, 2011, in Paragraph A(1), after "(SSI)", deleted "Social Security Disability Income (SSDI)"; in Paragraph A(2), after "applicant's annual", added "gross" and after "income does not exceed", deleted "one hundred-fifty percent (150%)" and added "one hundred eighty-five percent (185%)"; and in Paragraph B(2), added Subparagraph (b). The 2008 amendment, approved by Supreme Court Order No. 08-8300-30, effective November 17, 2008, in Subparagraph (2) of Paragraph B, added "Upon the filing of an attorney certificate in the form set forth in Form 4-224 NMRA, certifying that"; added "an attorney pursuant to a referral from a local pro bono committee for a judicial district created pursuant to Supreme Court order"; deleted "a legal aid society"; added the provision that upon the filing of an attorney certificate, "the court shall enter an order providing that" all fees and costs shall be waived without the necessity of an application "for free process or affidavit of indigency from the party", and added the last sentence; and in Subparagraph (4) of Paragraph B, changed "affidavit" to "certificate" and deleted the sentence which provided that the affidavit should provide that the attorney is satisfied as to the truth contained in the client's affidavit of indigency.