
    John F. TATRO v. Francis FEE, Clerk, Chittenden Superior Court
    [535 A.2d 783]
    No. 87-250
    September 22, 1987.
   John F. Tatro, proceeding pro se, sought to bring a civil action in forma pauperis in the Chittenden Superior Court. The filing was denied because the trial court determined the cause to be “frivolous.” Mr. Tatro next brought what he labeled an “appeal” to this Court challenging the decision of the trial court. We treated Mr. Tatro’s proceeding in this Court as an original action for extraordinary relief in the nature of mandamus. See Miserak v. Terrill, 130 Vt. 7, 285 A.2d 753 (1971). The relief sought by the petitioner is an order from this Court directing the clerk of the Chittenden Superior Court to accept his complaint without payment of the entry fee required by 32 V.S.A. § 1431 and further that the clerk make proper service thereof without expense to him.

We are not willing to accept frivolity as a ground on which leave to proceed in forma pauperis can be denied. See Forester v. California Adult Authority, 510 F.2d 58, 60 (8th Cir. 1975). A trial court may not summarily refuse such a filing without the benefit of a hearing merely because the cause appears weak or lacking in merit. See V.R.C.P. 3.1(b). Rather, the complaint should be filed and, if subsequently deemed appropriate, dismissed on the same basis as an action for which fees have been paid.

For the foregoing reasons, if the petitioner satisfies the financial eligibility requirements for in forma pauperis status, as described in V.R.C.P. 3.1, the clerk of the Chittenden Superior Court shall allow his complaint to be filed without the required fee and shall make proper service without cost to the petitioner. Further, any and all fees paid into the Chittenden Superior Court by the petitioner for the purpose of bringing the action below shall be refunded forthwith.  