The opinion of the court was delivered by: Parsons, District Judge.
MEMORANDUM OPINION AND ORDER
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
It is to be remembered that petitioner's claim of indigence is
subject to continuous review during the course of the bankruptcy
proceeding, and should her financial condition improve
sufficiently, she would be required to pay to the extent possible
all or part of the filing fee.
The Referee could well fashion an order resembling a judgment
for costs which would provide that petitioner's obligation to pay
the filing fee is not permanently discharged but would rise again
when she was no longer indigent and could pay the fee without
undue hardship as was the case with the orders fashioned by the
Smith and Kras Courts.
Accordingly, it is hereby adjudged, ordered and decreed that
the Referee's decision is reversed and the case is remanded to
the Referee to enter a discharge order consistent with this
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