In re Kras

• Decision Date: 13 September 1971
• Docket Number: No. 71-B-972,71-B-972
• Citation: 331 F. Supp. 1207
• Parties: In the Matter of Robert William KRAS, Petitioner in Bankruptcy.
• Court: U.S. District Court — Eastern District of New York

331 F. Supp. 1207

In the Matter of Robert William KRAS, Petitioner in Bankruptcy.

No. 71-B-972

United States District Court, E. D. New York.

September 13, 1971.

Morton Dicker and Kalman Finkel, The Legal Aid Society, New York City, for petitioner.

L. Patrick Gray, III, Asst. Atty. Gen., Washington, D. C., Edward R. Neaher, U. S. Atty., Eastern District of New York, and Mary P. Maguire, Asst. U. S. Atty., Harland F. Leathers and Jeffrey F. Axelrad, Attys., Dept. of Justice, Washington, D. C., for the United States.

DECISION AND ORDER

TRAVIA, District Judge.

The petitioner moves for leave to file his petition in bankruptcy and proceed without prepayment of any of the filing fees¹ as a condition precedent to a discharge in bankruptcy. The motion comes directly to the Court before being referred to a Referee by the Clerk of the Court.

Under the Individual Assignment System presently operating in this District, new civil and criminal cases are filed in the Clerk's Office, given a docket number and then assigned, at random, to one Judge for all purposes. In a bankruptcy proceeding, "* * * the clerk shall, immediately upon the filing of a petition * * *, refer the case to a referee."² (Emphasis added). The issue in this proceeding is whether the Clerk shall file the petition without the payment of the filing fees. Since the Clerk has not filed the petition, the matter has not been referred to a referee and the issue is before this Court.³ A decision granting the motion will, in effect, direct the Clerk of the Court to file the petition, assign the same a docket number and refer the proceeding to a Referee in Bankruptcy. A decision denying the motion will end the proceeding without giving the petitioner an opportunity to an adjudication of his rights in a bankruptcy proceeding.⁴

According to his affidavit submitted in support of the motion,⁵ petitioner lives in a two and one-half room apartment with his wife, his two young children, his mother, and her young child. His younger child has cystic fibrosis and, at about the time the affidavit was prepared, was in Cumberland Medical Center. Except for some minor odd jobs, petitioner has been unemployed since May 1969. His last steady employment was as an insurance agent for Metropolitan Life Insurance Company (hereinafter "Metropolitan") from which he was discharged because premiums which he had collected were stolen from his home and he was unable to make up the amount. Petitioner has since attempted to secure employment but has been unsuccessful because of bad references given by Metropolitan. Petitioner's wife was employed until March 1970 when she had to stop working because of her pregnancy. She will be unable to work since all of her time will be spent caring for the younger child.

Petitioner's present financial picture is not pleasant, to say the least. He and his family, including his mother and her daughter, live on a public assistance allotment of $366.00 per month. All of this amount is required for rent and the necessities of life. Petitioner alleges he owns no non-exempt assets and that his only assets consist of $50.00 worth of essential household goods and clothing which are exempt from distribution under 11 U.S.C. § 24 and New York CPLR § 5205(a). Because of these circumstances, petitioner claims he is unable to pay the filing fee and cannot promise to pay the fee in installments.⁶ Neither the New York City Department of Social Services nor family, relatives, or friends have been able to help petitioner raise the money to meet the cost of filing the petition. Petitioner seeks a discharge in bankruptcy of his indebtedness in the amount of $6,428.69 and states as his reason, among other things, "* * * in order to get a new start in life."⁷ He especially seeks a discharge of his indebtedness to Metropolitan to improve his chances of securing employment elsewhere.

To secure relief, petitioner makes both statutory and constitutional arguments.⁸ In view of the long established practice of refraining from passing on the constitutionality of Acts of Congress unless compelled to do so, Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 80 L.Ed. 688 (1936, Brandeis, J. concurring), petitioner's statutory claim will be dealt with first.

I

Petitioner argues that the Bankruptcy Act should be liberally construed in view of its broad remedial purpose and that the federal in forma pauperis statute, 28 U.S.C. § 1915(a), should be applied to bankruptcy proceedings in accordance with such construction. On its face, petitioner's argument possesses some merit. Section 1915(a) provides:

"Any Court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that he is entitled to redress." (Emphasis added).

As petitioner states, "By its own terms this statute is as applicable to bankruptcy proceedings as to any other proceedings in federal court."⁹ And since the filing fee in bankruptcy, $50.00,¹⁰ is much greater than that in other civil litigation, generally $15.00,¹¹ the need for the application of § 1915 to bankruptcy proceedings is obvious. Petitioner further argues that nothing in the Bankruptcy Act or the General Orders—

"specifically requires that persons must pay the filing fee as a prerequisite to discharge even if they are so poor that they do not have at the time of filing and cannot hope to have over 9 months enough non-essential assets to pay any part of the filing fees."¹²

Except for evidence that Congress intended to require payment of filing fees as a condition precedent to discharge in bankruptcy, this Court might be inclined to grant petitioner's motion on the ground that § 1915(a) is applicable to bankruptcy proceedings. That evidence, however, compels this Court to reject petitioner's statutory argument.

The Bankruptcy Act of 1898 provided for a waiver of fees at the time of the filing of the petition on an affidavit of inability to pay.¹³ In 1946, Congress passed the Referees' Salary Bill¹⁴ which did away with bankruptcy petitions in forma pauperis. The Senate Report on that Bill stated:

"Under the existing statutory provisions a bankrupt is permitted to file a petition without the payment of any filing fees where he accompanies it with an affidavit indicating his inability to pay them. In such instances, however, many of the referees have later collected the filing fees in installments from the bankrupts. It is deemed desirable, in lieu of the present widespread practice of demanding payment ultimately, to abolish pauper petitions. It seems more advisable to provide for installments in meritorious cases and to leave the exact procedure for incorporation in the general orders of the Supreme Court."¹⁵

Although the Senate's reasoning has been criticized,¹⁶ it is difficult for this Court to say that Congress was unaware of the effect its action would have upon paupers' petitions. Congress knowingly deleted from the new law the former paupers' provision and substituted the requirement that a bankrupt who asserts contemporaneously with the filing of his petition that he cannot pay the fee, may pay in installments, but must pay ultimately as a condition precedent to discharge. 11 U.S.C. §§ 32(b), 32(c) (8), 68(c)(1), 95(g); General Orders in Bankruptcy 35(4), 331 U.S. 873, 877.

A similar conclusion has been reached in the two other cases which have considered this issue. In re Garland and In Matter of Smith, both supra, at note 3. Chief Judge Aldrich stated in the opinion of the Court, In re Garland, "Of more basic importance, Section 1915(a) provides for waiver of prepayment only, not for forgiveness. See section 1915(e). It cannot be read to eliminate a requirement of ultimate payment phrased as a condition precedent."

This Court agrees with the reasoning of the Garland and Smith cases on this issue.

II

Having disposed of petitioner's statutory claims, the Court now turns to the more difficult constitutional questions petitioner raises.

First, petitioner argues that the provisions of the Bankruptcy Act which condition a discharge in bankruptcy upon payment of a filing fee¹⁷ deprive him of his Fifth Amendment rights to due process and equal protection of the laws.

This issue is one of first impression in this Circuit.¹⁸ However, two other federal courts have faced the constitutional questions. In In re Garland¹⁹ decided on July 8, 1970, the First Circuit, in a unanimous decision, held that the constitutional requirement of payment of a filing fee before receiving a discharge in bankruptcy does not amount to a denial of due process. More recently, on February 24, 1971, the Colorado District Court in In Matter of Smith²⁰ disagreed with the conclusion of the First Circuit and found that the filing fee requirement of the Bankruptcy Act as applied to an indigent petitioner constituted a denial of equal protection. Thus, this Court is faced with conflicting judicial decisions, and since neither the Supreme Court nor our own Court of Appeals has ruled directly on the question, it is free to adopt that solution which it feels the Constitution requires.

At the outset, it should be noted that neither the Garland nor the Smith courts had the benefit of the Supreme Court's opinions in Boddie v. Connecticut,²¹ decided on March 2, 1971. In Boddie, a majority of the Supreme Court relied on the Due Process Clause to strike down a Connecticut statute which had the effect of denying individuals access to its divorce courts solely because of the inability of an individual to pay filing fees and process costs. Since there was no dispute as to appellants' inability to pay or their "good faith" in...