1.11Waiver of Fees

Generally, filing fees are required in all cases.¹ The trial court fee schedules are available here.

When properly requested, MCR 2.002 requires a trial court to relieve an indigent person of his or her obligation to pay filing fees and assures that a person will not be denied access to the courts on the basis of indigence. See MCR 2.002. “Notwithstanding any other provision of [MCR 2.002], courts must enable a litigant who seeks a fee waiver to do so by an entirely electronic process.” MCR 2.002(L).

Except as provided in MCR 2.002(I),² for purposes of MCR 2.002, fees applies only to fees required by MCL 600.857, MCL 600.880–MCL 600.880c, MCL 600.1027, MCL 600.1986, MCL 600.2529, MCL 600.5756, MCL 600.8371, MCL 600.8420, MCL 700.2517, MCL 700.5104, and MCL 722.717. MCR 2.002(A)(2).

A.Who Qualifies for Waiver or Suspension

“Only an individual is eligible for the waiver of fees under [MCR 2.002].” MCR 2.002(A)(1). “A private or public organization is not eligible for a waiver of fees unless an applicable statue provides that no fee(s) shall be required.” Id.

Assuming a proper request has been made, see MCR 2.002(B),³ certain individuals are entitled to the waiver of fees, see MCR 2.002(C)-(D) and MCR 2.002(F). “Notwithstanding any other provision of [MCR 2.002], courts must enable a litigant who seeks a fee waiver to do so by an entirely electronic process.” MCR 2.002(L). “If a party shows that he or she is receiving any form of means-tested public assistance,^[4] the clerk of the court must waive payment of fees as to that party on a form approved by the State Court Administrative Office.” MCR 2.002(C). “If a party is represented by a legal services program that is a grantee of the federal Legal Services Corporation or the Michigan State Bar Foundation, or by a law school clinic that provides services on the basis of indigence, the clerk of the court must waive payment of fees as to that party on a form approved by the State Court Administrative Office.” MCR 2.002(D).

“If the clerk of the court is unable to waive fees under [MCR 2.002(C) or MCR 2.002(D)], the clerk shall immediately submit the request for judicial review.” MCR 2.002(E).

“If an individual shows that he or she is unable because of indigence to pay fees, the court shall order those fees waived.” MCR 2.002(F). “The court must waive fees when the individual lives in a household with gross income under 125% of the federal poverty guidelines. The court must also waive fees when gross household income is above 125% of the federal poverty guidelines if the payment of fees would constitute a financial hardship on the individual.” Id.

MCR 2.002 “places the initial burden of establishing indigence on the petitioner requesting a waiver of filing fees.” Lewis v Dep’t of Corrections, 232 Mich App 575, 579 (1998) (construing MCR 2.002(F))⁵.

B.Proper Request to Waive Filing Fees

“Notwithstanding any other provision of [MCR 2.002], courts must enable a litigant who seeks a fee waiver to do so by an entirely electronic process.” MCR 2.002(L). “Waiver of filing fees for prisoners who are under the jurisdiction of the Michigan Department of Corrections [(MDOC)] is governed by MCL 600.2963 and as provided in [MCR 2.002].” MCR 2.002(A)(3).

The individual requesting a waiver of fees under MCR 2.002(C)-(D) or MCR 2.002(F) must file SCAO’s fee waiver request form.⁶ MCR 2.002(B). “If the request is being made by a prisoner under the jurisdiction of the [MDOC], the prisoner must also file a certified copy of their institutional account showing the current balance and a 12-month history of any deposits and withdrawals.” Id. “The request must be verified in accordance with MCR 1.109(D)(3)(b) and may be signed either (1) by the individual in whose behalf the request is made; or (2) by a person having knowledge of the facts required to be shown, if the individual in whose behalf the request is made is unable to sign it because of minority or other disability.” MCR 2.002(B). If the court finds that the form is incomplete or has a reasonable belief that the request is inaccurate, “the court may conduct further inquiries reasonably necessary to prove indigence or financial hardship.” MCR 2.002(K). Any hearing on these inquiries must be held on the record, and the notice of hearing must indicate the issues subject to further inquiry. Id.

C.Domestic Relations Cases

“If a party entitled to relief in an action for divorce, separate maintenance, annulment, or affirmation of marriage is qualified for a waiver of filing fees under [MCR 2.002(C)-(D) or MCR 2.002(F)] and is also entitled to an order requiring the other party to pay attorney fees, the court shall order waiver of payment of those fees and shall require the other party to pay them, unless the other party is also qualified to have filing fees waived under [MCR 2.002(C)-(D) or MCR 2.002(F)]. MCR 2.002(H).

“Notwithstanding any other provision of [MCR 2.002], courts must enable a litigant who seeks a fee waiver to do so by an entirely electronic process.” MCR 2.002(L).

D.Grant or Denial of a Request to Waive Fees

Waivers processed by the clerk of the court do not require an order by the judge. See MCR 2.002(C)-(D); MCR 2.002(G) (only requiring an order when the judge decides the waiver request). Waiver requests reviewed by the court, see MCR 2.002(E)-(F), require entry of an order granting or denying the request within three business days, and the order must be nonpublic. MCR 2.002(G). “If required financial information is not provided in the waiver request, the judge may deny the waiver.” Id. Alternatively, if the court finds the waiver request incomplete or reasonably believes it is inaccurate, it may conduct further inquiries, including a hearing on the record. MCR 2.002(K).

“An order denying [the request] shall indicate the reason for denial. [An] order granting [the] request must include a statement that the person for whom fees are waived is required to notify the court when the reason for the waiver no longer exists.” MCR 2.002(G).

“Except as otherwise provided in [MCR 2.002(G)(2)(a)], if the court denies a request for fee waiver, the individual may file a request for de novo review within 14 days of the notice denying the waiver.” MCR 2.002(G)(2)(a). “A prisoner under the jurisdiction of the Michigan Department of Corrections may file the de novo review request within 21 days of the notice denying the waiver.” Id. “There is no motion fee for the request. A request for de novo review automatically stays the case or preserves the filing date until the review is decided. A de novo review must be held within 14 days of receiving the request.” Id. The de novo review must be conducted by someone other than the judge who made the original decision. See MCR 2.002(G)(2)(c)(i) (requiring either the chief judge or another judge assigned by the state court administrator to conduct the de novo review).

“If the court holds a hearing on the request for de novo review, it shall be closed and held on the record. The clerk of the court shall serve notice of the review at least 9 days before the time set for the hearing if served by mail, or at least 7 days before the time set for the hearing if served by delivery under MCR 2.107(C)(1) or [MCR 2.107(C)(2).⁷ The Michigan Rules of Evidence do not apply at this hearing.” MCR 2.002(G)(2)(b)(i). “If a hearing is held, the individual shall bring documents to verify the statements made in the fee waiver request and request for de novo review. The court may question the individual regarding the statements made in the requests.” MCR 2.002(G)(2)(b)(ii).

“The court shall enter an order reflecting its decision on the de novo review. If the court denies the request, it shall explain its reasoning in the order.” MCR 2.002(G)(2)(c)(ii).

E.Payment of Service Fees and Costs of Publication

“If payment of fees has been waived for an individual and service of process must be made by an official process server or by publication, the court shall order the service fees or costs of publication paid by the county or funding unit in which the action is pending, if the individual files an ex parte affidavit stating facts showing the necessity for that type of service of process. If known at the time, the affidavit may be included in or with the request to waive fees.” MCR 2.002(I).

F.Reinstatement of Requirement for Payment of Fees

Note: The cases discussed in this subsection were published before MCR 2.002 was amended by ADM File No. 2002-37 and 2018-20, effective January 1 and 23, 2019, respectively. Reference to suspensions have been removed from the case summaries, as well was references to costs. In addition, the amendment to MCR 2.002 included amendments regarding reinstating the requirement to pay fees. It is unclear if these amendments (which now specifically require a finding of fact before reinstating the obligation to pay) impact the analysis in the cases discussed.

“If the payment of fees has been waived under [MCR 2.002], the court may on its own initiative order the individual for whom the fees were waived to pay those fees when, upon a finding of fact, the court determines the reason for the waiver no longer exists.” MCR 2.002(J).

Before reinstating the requirement to pay the waived fees, the “trial court must determine whether the litigant is indigent at the time of the revocation of the waiver[.]” Martin v Dep’t of Corrections (On Remand), 201 Mich App 331, 335 (1993). A trial court reinstating the obligation to pay filing fees is not required to establish a petitioner’s indigency in any particular manner. Lewis v Dep’t of Corrections, 232 Mich App 575, 582 (1998) (holding that it was “proper that the court attempted to ascertain petitioner’s financial status by requiring him to supply the relevant information”).

G.Prisoners

Fee waiver issues frequently arise in the context of litigation initiated by prisoners. “Waiver of filing fees for prisoners who are under the jurisdiction of the Michigan Department of Corrections [(MDOC)] is governed by MCL 600.2963 and as provided in [MCR 2.002].” MCR 2.002(A)(3).

 MCL 600.2963 addresses claims of indigency in connection with prisoners’ civil actions. “MCL 600.2963 requires that a prisoner pursuing a civil action be liable for filing fees.” Johnson v Lakeland Correctional Facility Warden, 501 Mich 920 (2017). “If the request is being made by a prisoner under the jurisdiction of the [MDOC], the prisoner must also file a certified copy of their institutional account showing the current balance and a 12-month history of any deposits and withdrawals.” MCR 2.002(B); MCL 600.2963(1). MCL 600.2963 sets out requirements for payment of filing fees based on the prisoner’s financial records. MCL 600.2963(2)-(6). Incarceration cannot be the “sole basis” for a determination of indigency, but a prisoner must be permitted to commence a civil action or file an appeal even if he or she has no assets and no means by which to pay the initial partial filing fee, and the court may suspend or waive the filing fees and costs under MCL 600.2963(1). MCL 600.2963(7). However, if the reason for waiver no longer exists, the court must reinstate the order to pay the fees. Id. A trial court’s “discretion regarding the claim of indigency is limited to whether the prisoner must pay the filing fee in full immediately, in part, over a period, or at a later time.” Keenan v Dep’t of Corrections, 250 Mich App 628, 635 (2002), citing MCL 600.2963(2), MCL 600.2963(3), MCL 600.2963(5), and MCL 600.2963(7). If the court denies a request for a fee waiver from a prisoner under the jurisdiction of the MDOC, “the clerk’s notice shall indicate that the prisoner must pay the full or partial payment ordered by the court within 21 days after the date of the order, or the filing will be rejected.” MCR 2.002(G)(1).

“A prisoner who has failed to pay outstanding fees and costs as required under this section shall not commence a new civil action or appeal until the outstanding fees and costs have been paid.” MCL 600.2963(8). However, “MCL 600.2963(8) cannot constitutionally be applied to bar a complaint for superintending control over an underlying criminal case if the bar is based on outstanding fees owed by an indigent-prisoner plaintiff from an earlier case and the prisoner-plaintiff lacks funds to pay those outstanding fees.” In re Jackson (On Remand), 326 Mich App 629, 631-632 (2018). When dealing with “criminal cases,” there is a “’flat prohibition’ . . . against making access to ‘appellate processes’ turn on the ability to pay.” Id. at 635, citing MLB v SLJ, 519 US 102, 112 (1996). “[A] complaint for superintending control over an underlying criminal case must reasonably be recognized as an ‘appellate process,’ . . . even though it is an original civil action, and not formally an appeal, under Michigan procedural law.” Jackson, 326 Mich App at 637 (although the claim for superintending control was “recognized as criminal in nature for purposes of the federal constitutional right of access to the courts,” the claim remained classified “as an original civil action subject to the fee-related requirements of MCL 600.2963 (apart from an unconstitutional application of MCL 600.2963(8))”).

While it is possible “[c]ases might arise in which a prisoner-plaintiff in a civil action could establish entitlement to an exception to MCL 600.2963(8),” Jackson did not apply where prisoner-plaintiff’s lawsuit sounded in tort and was not seeking mandamus or superintending control. Grabinski v Governor, 330 Mich App 268, 275 (2019). “The holding in Jackson was based on the heightened protection given to criminal defendants for access to the courts in criminal cases for purposes of securing the federal constitutional right to the appellate process, . . . [whereas i]n a general civil action, the state is not acting to take away a party’s rights.” Id. at 274 (quotation marks and citation omitted). “[A] civil litigant’s status as a prisoner, without more, does not transform a civil action into a criminal matter entitled to heightened protection.” Id. Furthermore, “MCL 600.2963(8) has a rational basis in deterring frivolous prisoner litigation by requiring a prisoner to complete payment of outstanding fees to [the Michigan Court of Appeals] for a prior civil case before being allowed to proceed with a new civil case in [that court].” Grabinski, 330 Mich at 275.

The agency with custody of a prisoner must remove required amounts from the institutional account. MCL 600.2963(9). See also MCL 791.268, requiring withdrawal from prisoner accounts if installment payments are ordered under MCL 600.2963.

H.Standard of Review

A trial court’s decision to reinstate previously waived fees is reviewed for an abuse of discretion. See Lewis v Dep’t of Corrections, 232 Mich App 575, 584 (1998).