In April 2010, Karen McPeters filed a federal class action complaint against Montgomery County, Texas, and LexisNexis seeking to enjoin the county from requiring litigants to file all documents with the court through LexisNexis File & Serve. In the complaint, she alleged that the fees amounted to a poll tax and a denial of due process and equal protection. The Court dismissed her federal claims and declined to exercise supplemental jurisdiction to hear her state claims, suggesting that they are more properly heard by the state courts. We have pulled the filings for the federal case and posted them to Justia Dockets & Filings. (For free! The irony.) McPeters filed in state court on January 25, 2011, according to Courthouse News.

Courthouse News and 3 Geeks and Law Blog (see also their April post) posted about this case this week, and they have done a great job covering the details and legal analysis—so I’ll leave that to them. I decided to post on about this anyway because I think it’s important that this issue get as much coverage as possible. It highlights the current problems with our pay-to-play legal system in a way that everyone—lawyers and consumers—can understand.

Based on the allegations in the complaint, McPeters tried to file a civil rights complaint in the County court and the Clerk refused to accept a paper filing presented to her. She also returned a mailed complaint back to the Plaintiff marked “VOID,” based on the Judge’s 2003 ruling requiring that all civil filings (with some exceptions) be filed through the LexisNexis product. The federal court found that she did have two alternatives to e-filing on her own: (1) seek leave of the Court to file a hard copy and (2) use the public access terminal at the Courthouse. However, they expressed concerns about the e-filing system, in general:

“Although no federal statutory or constitutional claim is available in this case, the Court is indeed troubled by certain aspects of the e-filing system at issue. It is not clear that the e-filing system, and the accompanying fees, were properly adopted within the bounds of applicable Texas law.” (at 19) …. “It is a bedrock principle of federal and state courts that they should be accessible to persons seeking remedies for their grievances. Charging litigants more than is necessary to subsidize the operation of the courts and other vital government functions is contradictory to the basic idea of access to courts. To give to a private company the authority to profit by setting rates and charging litigants for each court filing seriously endangers that principle and sets forth on a dangerous path. That is particularly so where it is not clear under state law that the district clerk has the power to delegate authority in such a way. Still, the right of access to courts is not absolute, and no federal remedy is available under the facts presented in this case. Plaintiffs claims under the constitution and laws of Texas may or may not have merit, but as no federal question remains in this case, they are properly decided by a state court.” (at 20)

I don’t know the judge’s motivation for issuing the original e-filing order. Plaintiff McPeters asserts that the County is benefitting financially from this deal with Lexis, but I’m going to give Judge Edward the benefit of the doubt and assume that he wanted to save trees and streamline the process to improve court efficiency, which helps all litigants and is a worthy ideal. But turning litigants away when they show up with a paper filing? Allowing a private company to charge $444 for e-filing services, in addition to the court fees? In its dismissal, the Court discusses the fees charged under the contract between Lexis and the County:

“LexisNexis charges $7.00 for filing fees, $8.00 for services charges for any document filed online, and a charge of at least $10.00 for providing a paper invoice. Plaintiff alleges that LexisNexis pays $1.00 of each filing and service charge to Montgomery County.” (3)

$10 for a paper invoice? What the hell? Each filing could cost up to $25, in that case.

I didn’t find any direct reference to this in the filings in my quick review, but based on Lexis’ statement on the Court site, this filing fee is in addition to those collected by the court for the administrative process (the standard court filing fees).

What if you are indigent and qualify for fee waiver? Texas, like most states, provides fee waivers for litigants who cannot afford to pay filing costs in civil lawsuits. (Texas Rules of Civil Procedure, Rule 145). I assume that an indigent litigant or his or her pro bono/Legal Aid attorney will have to petition the judge to allow a paper filing. After all, the terminal is free in the courthouse, but you’ll still get a bill from Lexis.

I’m all for moving to a paperless solution for the legal system. I understand that companies like Lexis are not going to just provide this for free, but I think there needs to be some debate about who exactly is going to pay for it. As Greg points out in his post, e-filing is convenient for lawyers, and most already have an account with LexisNexis and just add this to the client’s bill. I wonder if this issue has been quiet until McPeters took it on because few litigants even know about it. They get a bill from their attorney for “filing fees” and they just assume the money is going to the Courts. And maybe it’s well spent, since you do not want to pay billable time for your lawyer to walk to the courthouse and file papers.

However, I think most Americans know that they have a fundamental right of access to their courts and expect that they are being dealt with fairly when they interact with such systems. Imagine you went to pay a parking ticket, file taxes, or apply for a permit and were sent to a private site that charged you $25 for the privilege, while the government refused to take your check for the fees directly?

I think there’s a better way to do this. I recently heard about the WeJudicate project, which is building an opensource e-filing system for state courts. In the words of David Colarusso, the programmer/law student behind it,

“I hope that by providing a robust open source solution for electronic filing, we can encourage courts to adopt it, thereby increasing judicial efficiency and public accessibility to these records. By releasing the software under an open source-open API license, I also hope to foster the development of a rich ecosystem of tools for the court system.”

I would add: and replace or improve the cost structure for existing privately sourced models, such as LexisNexis File & Serve.

Want to help? WeJudicate is looking for funding. For $25, the price of one filing + an invoice from Lexis in Texas, you can back a project that will help increase access to courts all over the United States.