¶ 1 We granted certiorari to address the issue of whether inmates who seek to proceed as indigents or paupers, but who are required to prepay filing fees pursuant to 57 O.S. 2001 § 566.21 if they have filed three or more meritless civil lawsuits are statutorily denied due process or the constitutional right of access to courts guaranteed to all citizens by the Okla. Const. art 2, § 6.2 The statute in question provides in pertinent part:
"A. A prisoner who has, on three or more prior occasions, while incarcerated or detained in any facility, or while on probation or parole, brought an action or appeal in a court of this state or a court of the United States that has been dismissed on the grounds that the case was frivolous, or malicious, or failed to state a claim upon which relief could be granted, may not proceed in a matter arising out of a civil case, or upon an original action or on appeal without prepayment of all fees required by law, unless the prisoner is under immediate danger of serious physical injury. . . ."
We hold that the statute does not deprive inmates of the due process right to access to courts.
FACTS ¶ 2 On January 2, 2003, the appellant, Faramarz Mehdipour (Mehdipour), an inmate at the Mack Alford Correctional Facility in Stringtown, Oklahoma, filed a lawsuit in the district court of Atoka County, Oklahoma, against the appellants, the warden, and various employees of the prison and the Department of Corrections (collectively, prison officials). Mehdipour complained of violations of his civil rights, alleging that the prison officials: 1) improperly placed him in a segregation unit; 2) seized his legal materials and personal property; 3) forced him to live with a smoker in the same cell; 4) failed to properly train prison employees; and 5) forced him to work against his will. He did not allege that he was under any immediate *Page 548 danger of serious physical injury. Rather than pay the filing fee in the district court, Mehdipour filed a pauper's affidavit.3
¶ 3 The prison officials filed a motion for summary judgment on March 24, 2003. They argued that, pursuant to 57 O.S. 2001 § 566.2[57-566.2],4 the cause must be dismissed for failure to pay the filing fee because Mehdipour had, on at least three prior occasions, filed lawsuits that had been dismissed as frivolous or for failure to state a claim. The prison officials presented an order filed February 25, 2003, in the United States Court of Appeals for the 10th Circuit which dismissed a lawsuit filed by Mehdipour for failing to pay a filing fee after three or more prior meritless cases had been dismissed.5
¶ 4 On April 28, 2003, the trial court entered an order granting the prison officials' motion for summary judgment. It found that Mehdipour was incarcerated, he had not paid the filing fee, and he had, on at least three prior occasions, filed actions which had been dismissed as frivolous or for failure to state a claim. Mehdipour appealed, insisting that he had never filed a frivolous civil action. The Court of Civil Appeals affirmed the trial court. It determined that 57 O.S. 2001 § 566.26 applied as a matter of law, and required dismissal, without prejudice to refiling upon the proper payment of the filing fees. We granted certiorari on January 20, 2004, to address the constitutionality of the statute.
TITLE 57 O.S. 2001 § 566.2[57-566.2] DOES NOT DEPRIVE INMATES OF THE DUE PROCESS RIGHT TO ACCESS TO COURTS. ¶ 5 Mehdipour argues that a literal construction of 57 O.S. 2001 § 566.2[57-566.2],7 to require prepayment of fees even though he alleges that he is indigent, violates his right to access to the courts and due process guaranteed by the federal8 and state constitutions.9 *Page 549 He relies on our recent decision in Mehdipour v. Wise,2003 OK 3, 65 P.3d 271 in support of his argument. The prison officials contend that the statute in question does not prevent access to courts or deny due process, but merely requires prepayment of a filing fee rather than installment payments, under certain circumstances when an inmate has filed excessive, meritless lawsuits.
¶ 6 There are two sources of the right to access the courts and due process. Oklahoma's Constitution, art 2, § 6 specifically guarantees citizens' access to courts.10 Although the United States Constitution does not have a specific access to courts provision like the Oklahoma Constitution, the United States Supreme Court has recognized that indigent inmates have a fundamental constitutional right to meaningful access to the courts, arising from several constitutional provisions.11 However, this right in the civil context, is not absolute or unconditional, except in cases where an indigent litigant has a fundamental interest at stake.12 Due process is guaranteed by the Okla. Const., art 2, § 7 and the 14th Amendment of the United States Constitution.13
¶ 7 The United States Supreme Court has issued orders denying petitioners from proceeding in forma pauperis when seeking extraordinary relief for filing excessive, frivolous and/or abusive petitions in the Court.14 Similarly, the Oklahoma Court of Criminal Appeals has also denied in forma pauperis status for future extraordinary relief filings based on past excessive, frivolous, and *Page 550 duplicitous filings.15 Other courts, relying on their inherent powers have also imposed similar restrictions on litigants who have demonstrated a pattern of excessive filings.16
¶ 8 This Court has previously determined that § 6 of the Oklahoma Constitution17 was intended to guarantee that the judiciary would be open and available for the resolution of disputes, but not to guarantee that any particular set of events would result in court-awarded relief.18 We have also determined that prisoners have a constitutional right to reasonable access to the courts.19 Last year, inMehdipour v. Wise, 2003 OK 3, 65 P.3d 271, we recognized that our courts have consistently declined to interpret our statutory provisions in a manner which would deprive prisoners access to civil judicial process.
¶ 9 Wise involved the issue of whether inmates were statutorily deprived of the capacity to file any civil action against a third party which does not involve the asserted violation of constitutional rights.20 In determining that they were not and could not be deprived of such capacity, we also noted that our rulings have long recognized the fundamental policy considerations and constitutional implications which would arise from a holding that prisoners may be deprived of their right to seek protection of the courts to guarantee their personal and property rights.21 *Page 551
¶ 10 If this cause were about the abolition of the right to seek redress for every type of injury or complaint of any civil case that required a filing fee, we would agree that Mehdipour v. Wise, 2003 OK 3, 65 P.3d 271, and its progeny would be dispositive. However, it is not about the abolishment of a right to seek redress, but rather, whether the conditions imposed which limit the right to seek redress are constitutional. We have not addressed the issue of whether withholding the right of an indigent prisoner to seek redress for a civil complaint that requires a filing fee, until the filing fee is prepaid, violates access to the courts or due process.22
¶ 11 Title 28 U.S.C.A. § 1915(g)(1996) of the Federal Prison Litigation Reform Act (the Act) has a provision which is similar to Oklahoma's 57 O.S. 2001 § 566.2.23 Section 1915(g) provides:
"In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury."
Under the Act, federal courts may also exempt non-prisoner indigents from prepaying filing fees.24 However, the federal courts may not exempt prisoner indigents from prepaying filing fees. Instead, prisoner indigents must prepay at least a partial filing fee followed by monthly payments until the fees are paid.25 A limited exception exists for prisoners with no assets and no means to pay the initial partial filing fee.26 *Page 552
¶ 12 The United States Supreme Court has not addressed the constitutionality of 28 U.S.C.A. § 1915(g)(1996) as it relates to access to the courts or due process. Our research does not reveal any persuasive authority for holding the statute unconstitutional. However, the federal circuit courts have addressed the constitutionality of the statute and agree that it is constitutional and does not deny access to courts, due process, or violate the equal protection clause.27
¶ 13 The courts which have determined that the "three strikes" rule does not block a prisoner's access to courts do so because, by its terms, it does not prevent prisoners from filing civil actions, it merely prohibits them from enjoying in formapauperis status.28 The rationale is that: 1) prisoners aren't prohibited from accessing the courts to protect their rights — they merely must pay the filing fees; 2) it only precludes prisoners with a history of abusing the legal system from continuing to misuse it while enjoying in forma pauperis status; and 3) only after demonstrating an inability to function within the judicial system is an indigent inmate asked to pay the filing fee.29
¶ 14 These courts also recognize that the United States Supreme Court has never required an unlimited rule that indigents, at all times, in all cases, have the right to relief without payment of fees or that Congress is compelled to provide unlimited access to *Page 553 courts.30 While fee waivers are required in criminal cases, in the civil context the United States Supreme Court has only required a waiver of fees in a narrow category of cases where the litigant has a fundamental interest at stake.31
¶ 15 The courts which have determined that the statute does not violate due process or equal protection recognize that unless a classification involved is a fundamental right or is drawn upon an inherently suspect distinction such as race, religion, or alienage, the constitutionality of statutory discrimination is presumed and requires only that the classification challenged be rationally related to a legitimate state interest.32 After determining that neither prisoners nor indigents are a suspect class, the provisions of the Act do not implicate fundamental rights, and the provisions are rationally related to the legitimate governmental interest of deterring frivolous prisoner lawsuits, they held that due process was not impeded by the statute.33
¶ 16 In upholding the constitutionality of the statute, the courts reason that: 1) proceeding in forma pauperis is a privilege, not a right — fundamental or otherwise; 2) rather than prohibiting the filing of civil actions, it merely prohibits the privilege of proceeding in forma paueris; and 3) its function is not to place burdens on prisoners, but to put them in the same position as other litigants who have to weigh their resources and determine whether a lawsuit or an appeal is worth the expense. Ultimately, application of the statute is entirely within an inmate's control if meritless lawsuits are not filed.34
¶ 17 In Higgins v. Carpenter, 258 F.3d 797 (8th Cir. 2001)cert. denied by Early v. Harmon, 535 U.S. 1040,122 S.Ct. 1803, 152 L.Ed.2d 659 (2002), the Court, in upholding the "three strikes" statute as constitutional recognized that the statute does not close the courthouse doors to "frequent filer" prisoners, it merely prohibits them from enjoying in formapauperis status and makes them pay the full filing fee sooner rather than later. It noted that:
"It is true that some indigent inmates — who, like Higgins and Early, have no prison jobs or other income sources and cannot save the full filing fee — may be effectively prevented from pursuing valid constitutional claims after receiving three strikes. Yet, a `constitutional requirement to waive court fees in civil cases is the exception, not the general rule.' . . . The Supreme Court has recognized only a few civil matters in which fee waivers are required . . . (termination of parental rights) . . . (divorce proceedings). If fee waivers are not constitutionally required in prisoner § 1983 cases, it follows that inmates do not have a constitutional right to pay court fees for civil cases by the installment method. . . . To be sure, proceeding IFP in a civil case is a privilege, not a right — fundamental or otherwise." (Citations omitted.)
¶ 18 While pronouncement of a federal law question by an inferior federal court is not binding on this Court, it is persuasive,35 as well as instructive, in providing guidance on similar state law questions.36 Given the *Page 554 Federal precedent and overwhelming agreement in rejecting constitutional challenges to similar legislative enactments, we agree with the rationale of the federal courts.37
¶ 19 Under the current statutory scheme, Oklahoma courts may exempt non-prisoner indigents from prepaying filing fees.38 If an applicant for in forma pauperis is an indigent prisoner, the prisoner is required to prepay partial filing fees followed by monthly payments until the fees are paid.39 An exception exists for prisoners with no means and no assets to pay the fees.40 Inmates are also prohibited from filing patently frivolous pleadings.41 Pursuant to 57 O.S. 2001 § 566.2[57-566.2],42 a prisoner who has previously filed three or more meritless lawsuits must save up and prepay the full fees when filing a new lawsuit, rather than make a partial payment or installment payments.
¶ 20 The Okla. Const. art. 2, § 6,43 was not intended to guarantee the right to litigate entirely without expense to the litigants, nor to impose upon the public the entire burden of the expense of the maintenance of courts.44 Requiring partial payments was a response to a flood of pro se claims by prisoners. The partial payment requires a prisoner to weigh the validity of a lawsuit against the cost of pursuing it.45 This Court has already upheld the practice of requiring prisoners to pay filing fees, as long as the payment of a partial filing fee in any month would not completely deplete a prisoner's account with the Department of Corrections.46
¶ 21 Because prisoners are not a suspect class, and the provisions of 57 O.S. 2001 § 566.247 do not implicate fundamental rights, and are rationally related to the legitimate *Page 555 governmental interest of deterring frivolous prisoner lawsuits,48 we hold that the challenged provision is constitutional under both the federal and state constitutions.49 Although the effect of our holding is similar to the effect of the Federal Act, we base our holding on Oklahoma law.50 Under the current statutory scheme, inmates are not barred from filing lawsuits if there are no funds.51 However, inmates who continue to file meritless lawsuits have been on notice since 57 O.S. 2001 § 566.252 became effective in November of 2001,53 that continuing to file frivolous lawsuits will result in its application and require prepayment of filing fees.
CONCLUSION ¶ 22 A legislative act is presumed to be constitutional and will be upheld until the contrary is shown.54 Because prisoners are not a suspect class, and the provisions of 57 O.S. 2001 § 566.255 do not implicate fundamental rights, and are rationally related to the legitimate governmental interest of deterring frivolous prisoner lawsuits,56 no showing has been made that the statute is unconstitutional under either the federal or the state constitution. The Court is duty-bound to give effect to legislative acts, not to amend, repeal or circumvent them.57 Under the current statutory scheme, inmates are not barred from filing lawsuits if there are no funds.58 However, pursuant to 57 O.S. 2001 § 566.2[57-566.2],59 unless an inmate is under immediate danger of serious physical injury, inmates who continue to file frivolous lawsuits will be required to prepay the full filing fees.
CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINIONVACATED; TRIAL COURT AFFIRMED.
WATT, C.J., HODGES, LAVENDER, HARGRAVE, KAUGER, BOUDREAU, WINCHESTER, EDMONDSON, J.J., concur.
OPALA, V.C.J., concurs in result.
"A. A prisoner who has, on three or more prior occasions, while incarcerated or detained in any facility, or while on probation or parole, brought an action or appeal in a court of this state or a court of the United States that has been dismissed on the grounds that the case was frivolous, or malicious, or failed to state a claim upon which relief could be granted, may not proceed in a matter arising out of a civil case, or upon an original action or on appeal without prepayment of all fees required by law, unless the prisoner is under immediate danger of serious physical injury.
B. The court administrator of the Oklahoma courts shall maintain a registry of those prisoners who have had any cases dismissed as frivolous or malicious or for failure to state a claim upon which relief can be granted. The Attorney General, the General Counsel of the Department of Corrections, the district attorneys and general counsels of the various state agencies shall forward to the court administrator copies of all orders in which there was a finding the case filed by a prisoner was dismissed as frivolous or malicious or for failure to state a claim upon which relief can be granted."
"The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay or prejudice."
". . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
"No person shall be deprived life, liberty, or property, without due process of law."
Mehdipour also insists, for the first time on appeal and offers no explanation why, that the statute as applied by the trial court conflicts with the Okla. Const. art 2, § 15, 12 O.S.Supp. 2002 § 2003.1[12-2003.1](A) and violates 21 O.S. 2001 § 68.[21-68]. The Okla. Const. art 2, § 15 provides:
"No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed. No conviction shall work a corruption of blood or forfeiture of estate: Provided, that this provision shall not prohibit the imposition of pecuniary penalties."
Title 12 O.S.Supp. 2002 § 2003.1[12-2003.1](A) provides in pertinent part:
"Petitions, motions, or other pleadings filed by an inmate as defined in paragraph 2 of subsection B of Section 566[57-566] of Title 57 of the Oklahoma Statutes appearing pro se shall be on forms approved by the district court and supplied without charge by the clerk of the district court upon request . . ."
Title 21 O.S. 2001 § 68[21-68] provides:
"No conviction of any person for crime works any forfeiture of any property, except in the cases of any outlawry for treason, and other cases in which a forfeiture is expressly imposed by law."
Because these arguments were raised for the first time on appeal, we need not address them. Fulsom v. Fulsom, 2003 OK 96, ¶ 5, n. 5, 81 P.3d 652; Niemeyer v. United States Fidelityand Guaranty Co., 1990 OK 32, ¶ 12, 789 P.2d 1318;Mothershed v. Mothershed, 1985 OK 23, ¶ 23, 701 P.2d 405.
"A sentence of imprisonment under the Department of Corrections suspends all the civil rights of the person sentenced . . ."
"Subject to subsection (b), 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 or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress."
"(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of —(A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.
(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid."
"In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."
"A. 1. If an applicant for in forma pauperis is a prisoner and the prisoner brings an action of any kind, upon filing, the court shall order the prisoner to pay, as a partial payment of any court costs required by law, before the commencement of the action, a first-time payment of twenty percent (20%) of the deposits of the preceding six (6) months to the trust account of the prisoner administered by the confining agency and thereafter monthly payments of twenty percent (20%) of the deposits of the preceding month to the account, but only if the prisoner does not have enough funds to pay the total costs required by law at the time of filing. In those cases where the prisoner has sufficient funds available, the prisoner shall be ordered to pay the required costs before the action may commence . . .
4. If a prisoner is found to be indigent and totally without any funds pursuant to this section at the time of filing, the case may proceed without prepayment of fees or partial fees. Even in those cases where the court finds the prisoner is without funds, the court shall assess costs against the prisoner, establish a payment schedule and order the costs paid when the prisoner has funds. . . ."