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A shift in the Court’s IFP policy?

Buried in this morning’s order list is an order that may be of special interest to members of the Supreme Court bar who represent indigent parties in the Court.  The Court denied the motion for leave to proceed in forma pauperis (IFP) and for appointment of counsel in Sossamon v. Texas, No. 08-1438, a case being argued in November.  The denial may signal a change in the Court’s criteria for granting IFP status at the merits stage in some cases.

In general, the Court grants IFP status and appoints counsel on the merits for parties with limited income.  The Court then pays for the cost of printing the party’s merits briefs and covers some costs associated with appointed counsel’s trip to Washington to argue the case.  Ordinarily, if the lower courts granted a litigant IFP status, the Court would do so as well.

Today’s denial seems to reflect a shift from that former practice, at least to some degree.  I took notice of it because I filed the motion the Court denied.  We represent Mr. Sossamon in association with the Stanford Supreme Court Litigation Clinic.

Until today, the Court had routinely granted IFP status to the Clinic’s indigent clients and appointed Clinic instructors as counsel at the merits stage.  I am fairly confident that the Court did not deny our motion because it concluded that this particular client was not indigent – the lower courts had granted our client (a prison inmate) IFP status and appointed him counsel in the court of appeals.  I am also reasonably confident that I did not simply botch the motion – the motion is fairly pro forma, and the one in this case followed a template that the Clinic has successfully used in the past.

As a result, I believe that the Court has changed its policy and that the Clinic’s involvement in the case was a critical factor.  There seem to be two possible explanations.

First, the Court may have determined that parties represented by clinics (and, presumably, law firms or other similarly well-funded organizations) do not merit IFP status because their counsel are able (and presumably willing) to bear the costs the Court would otherwise pay.  That would be a fairly radical shift in practice and could result in some difficult line-drawing problems – for example, will the Court apply that rule to public defender offices or less well-funded public interest organizations?

The second possibility would reflect a more modest change in practice (and, therefore, seems more likely to me).  The Stanford Clinic, as a matter of practice, files its cert. petitions as “paid” cases – we pay the filing fee, have the petition printed in booklet form, and do not seek IFP status at the cert. stage.  Our basic thinking is that IFP petitions tend to get buried in a sea of other, mostly meritless, pauper petitions.  The Court may have decided that if a party is able, and indeed chooses, to forgo IFP status at the cert. stage, the Court will not entertain a request to switch status once the petition is granted.

Perhaps the Court will amend its rules to provide definitive guidance, but in the meantime, members of the bar can take whatever lessons they can from the Court’s action today.