In re Smith, 71 B 7497.
| Citation | 341 F. Supp. 1297 |
| Decision Date | 28 April 1972 |
| Docket Number | No. 71 B 7497.,71 B 7497. |
| Parties | In the Matter of Callie M. SMITH, Bankrupt. |
| Court | United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois) |
David P. Schneider, Burton S. Terry, Legal Aid, Chicago, Ill., for Bankrupt.
On December 16, 1971, petitioner Smith, widow and mother of four minor children, sought leave of the Bankruptcy Court to proceed in forma pauperis. In an affidavit accompanying her motion, she alleged the facts of her indigence, and, in a legal memorandum supporting her motion, she raised both statutory and constitutional arguments for her contention that she be permitted to proceed in bankruptcy without prepayment of filing fees as a condition precedent to her discharge.
Relying on In re Garland, 428 F.2d 1185 (1st Cir. 1970), the Referee refused to grant petitioner a discharge without a payment of fees. Petitioner seeks review of the Referee's decision. The decision of the Referee is reversed.
It is first argued by petitioner that the Bankruptcy Act does not prohibit the application of the in forma pauperis proceeding provided for in 28 U.S.C. § 1915(a). However, recent Federal Court pronouncements on the subject are to the contrary. The Federal in forma pauperis statute does not apply to bankruptcy proceedings. In re Kras, 331 F.Supp. 1207 (E.D.N.Y.1971); In re Smith, 323 F.Supp. 1082 (D.Colo.1971); In re Garland, 428 F.2d 1185 (1st Cir. 1970).
This Court agrees with the reasoning of the Kras, Smith, and Garland cases on this issue.
Having disposed of petitioner's statutory argument, the Court now turns to petitioner's twofold constitutional argument, to wit, that provisions of the bankruptcy law which condition discharge upon payment of the filing fee effectively impose a bar to petitioner's "fundamental right" of access to the judicial process, and, in the absence of an overriding governmental interest in the fee requirement, deny petitioner her Fifth Amendment rights to due process and equal protection of the laws.
These constitutional questions were presented before the Garland, Smith, and Kras Courts. This Court has chosen to reject the approach taken by the Garland Court and shall follow the better reasoned decisions of the Smith and Kras Courts. Reiteration of the Smith and Kras legal analysis is not necessary. It is sufficient to state that both Courts found the statutory requirement compelling an indigent person filing a petition in bankruptcy to pay the filing fee as a condition precedent to being entitled to an order of discharge violative of the equal protection principle embodied in Fifth Amendment due process.
It is to be remembered that petitioner's claim of indigence is subject to continuous review during...
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United States v. Kras
...and In re Smith, 323 F.Supp. 1082, 1084—1085 (Colo.1971), the reasoning of which the District Court adopted. So also is In re Smith, 341 F.Supp. 1297, 1298 (ND Ill.1972). The appellee may well have abandoned the argument on this appeal. Tr. of Oral Arg. 44—45. In any event, we agree, for th......
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...1970), cert. denied, 402 U.S. 966, 91 S.Ct. 1624, 29 L.Ed.2d 130 (1971); In re Smith, 323 F.Supp. 1082 (D.Colo.1971); and In re Smith, 341 F.Supp. 1297 (N.D.Ill.1972), the Court ruled that despite the seeming facial application of that section to a bankruptcy proceeding, the Referees' Salar......