Georgia Citizens Rights to the Courts

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Georgia Mulls Citizens’ Right to Access Courts via E-File
Greg Land
10-25-2010

A DeKalb County judge expressed surprise Tuesday when an attorney representing the parent company of LexisNexis asserted that the public has no constitutional right of access to the courts. The exchange came in a hearing before DeKalb Superior Court Judge Robert J. Castellani on a motion for summary judgment in a case that seeks to have Fulton County’s e-filing system declared unconstitutional.

The case is the fourth iteration of a potential class action against Fulton County and its e-filing system, and charges that the Fulton court’s requirement that documents be filed via the fee-based LexisNexis File & Serve system declared an unconstitutional violation of citizens’ right to access the courts. The suit also says the Fulton court’s requirement violates Georgia law that stipulates the method by which legal documents must be filed and constitutes an “illegal scheme” between the county and LexisNexis’ parent company, Reed Elsevier, to “impose an unlawful mandatory e-filing system upon litigants in Fulton County State and Superior Court and to charge excessive and unauthorized fees in connection therewith.”

In a series of orders beginning in 1999, approved by the Fulton County Board of Commissioners and signed by then-State Court Chief Judge Albert L. Thompson, cases must be e-filed if they involve asbestos, Fen-Phen, mercury or lead, silicosis, welding rods, medical or legal malpractice, personal injury, cases with four or more plaintiffs or defendants, cases in which more than $50,000 in damages is being sought, torts cases, and those in which no specific dollar figure is demanded.

In Superior Court, certain asbestos and silicosis cases must e-file, and all filings in the criminal case against convicted Fulton County Courthouse shooter Brian Nichols also are required to be e-filed.

The complaint says that LexisNexis charges administrative fees of between $7 and $12 for each document filed in addition to the courts’ statutory filing fees, according to the complaint. A public access terminal at the courthouse allows pro se litigants to register and file documents without paying the fee.

The plaintiffs include three attorneys; a non-attorney who, as administrator of his father’s estate, “has been subjected to the Lexis fees”; and a corporate entity, Best Jewelry Manufacturing, which was a party to a suit in Fulton County State Court in 2008.

At one point, according to the complaint, Best’s attorney “was ‘locked out’ of defendant Lexis’ e-filing due to counsel’s alleged failure to pay fees,” and was thus unable to file a motion in the case.

The original eight-count complaint included charging Fulton County and Reed Elsevier with violating Georgia laws that require any court to accept paper filings, and forbidding “usage fees, interest, finance charges, administrative fees and other assessments not authorized by Georgia law.” Other counts allege violations of the rules governing state courts, and of the Georgia Constitution’s guarantee of access to the courts.

An amended complaint in March added counts of conversion and money had and received, which pertains to the fees already collected from the system’s users.

Atlanta attorney Steven J. Newton previously filed two similar suits in federal court; he voluntarily dismissed the first one in 2007, and the court dismissed the second last year. He also filed and voluntarily dismissed a 2007 suit in Fulton County Superior Court where the current suit, with two additional plaintiffs, was filed in January. The Fulton bench recused, and the case was assigned to Castellani.

At Tuesday’s hearing, the court heard arguments concerning Reed Elsevier’s motion to dismiss the suit. Paul, Hastings, Janofsky & Walker partner William K. Whitner, representing the company, argued that the dismissals of the earlier suits, and the submission of several amended complaints to them, indicated that the case has no merit and should be dismissed.

Further, he said, several of the allegations had no bearing on his client.

Reed “is a private party,” he said, and assertions that it could violate laws and regulations relating to the behavior of courts, clerks, or state agencies “have nothing to do with a contractual supplier like Reed Elsevier.”

Whitner pointed to the March 23, 2009, order dismissing the second federal case authored by U.S. District Judge William S. Duffey Jr., which includes the statement that “[p]laintiffs’ state law claims, to the extent they can be discerned at all, repeatedly allege violations of Georgia statutes and court rules that could be broken, if at all, only by the government defendants in this case.”

That order, said Whitner, “while not binding on this court, is certainly instructional.”

“It’s clear that, even if the e-filing were instituted improperly — which we do not believe — Reed has no control,” he said.

But it was Whitner’s statement on the constitutional claims that got Castellani’s attention.

“On the constitutional claims,” said Whitner, “they repeatedly refer to it as a ‘right to access to the courts.’ … The Georgia Supreme Court has repeatedly held that there is no constitutional right to access to the courts.”

“Did you just say there’s no right of access to the courts?” asked Castellani.

“No constitutional right,” said Whitner.

“So a court could establish a filing fee of $1,000, and if somebody didn’t have it, that would be OK?” asked the judge.

“It’s not even a close call,” said Whitner, citing Article 1 of the state Constitution, which states that “no person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.”

“This provides a right to representation,” he said. “That’s the what the case law says; I’m not saying it’s right or wrong.”

“I hope that’s not what your case rests on,” replied Castellani.

Newton’s co-counsel, associate Shuli L. Green, rose for the plaintiffs, first arguing that Georgia’s voluntary dismissal doctrine clearly allows a case to be voluntarily dismissed and refiled, and that the addition of the new plaintiffs meant that they should certainly have their chance in court.

“Does that mean that no class action could ever be subject to the voluntary dismissal doctrine” as long as new plaintiffs were added? asked Castellani.

“Not until the putative class members are certified by the court,” Green replied.

“That makes sense,” she added, “since we don’t even know who the class members are yet.”

As to Reed’s assertions that it could not be held responsible for the actions of state actors, Green replied that the company is “the functional equivalent of Fulton County as far as setting these filing fees.”

But she saved her harshest critique for the defense argument that the state Constitution affords no right to access to the courts.

She cited the Georgia Supreme Court’s ruling in Nelms v. Georgia Manor Condo Association (253 Ga. 410), which held that while the right to access to the courts is not unfettered, “it is axiomatic that an individual must have access to the courts in order to assert the right of self-representation provided by [the right to the courts provision].”

The requirement that all attorneys pay the fees and may not file by mail or in person is onerous enough, she said, but the burden on pro se filers — who have to either sign up with Lexis to pursue their case, or make their way to the Fulton County Courthouse, perhaps at considerable expense, to use the free PAT terminals creates a hardship that breaches constitutional strictures, she said.

Further, she said, the necessity to make that choice itself impacts a citizen’s right to select his or her choice of representation.

She also noted that, under the defense interpretation, there is no limit as to what fees can be charged.

“That proposition does concern me a little bit,” said Castellani, although “I don’t think it’s relevant here. There are alternatives available.”

“Their argument is that you don’t have to pay [to use the PATs],” she said, “but if you do have a lawyer your only option is to either have your lawyer file orders and pay him for his time, or pay a lawyer to use the free terminal, so it’s not free.”

Castellani did not issue any rulings, nor did he indicate when he might do so.

In response to an inquiry, a Reed Elsevier spokesman provided an e-mailed statement.

“LexisNexis has worked with the Fulton County courts since 1999 to provide court personnel and legal professionals with an efficient way to handle the exchange of legal documents through File & Serve,” it said. “The service allows for increased control over case file management, quicker and more cost effective filing and service, improved access to information and enhanced case monitoring. We believe the residents of Fulton County also benefit by the Court’s ability to more efficiently manage documents and reduce costs for document storage and administration.”

The case is McCurdy v. Fulton County, No. 2010CV179757.

A similar case is proceeding in federal court in Texas, where a class action was filed earlier this year against a judge, court clerk and county. In 2003, Montgomery County District Court Judge Frederick E. Edwards issued an order requiring that civil case documents be filed only through LexisNexis, exempting only filings filed by the state, Child Protective Services, adoptive actions, and new divorce and annulment cases that are resolved within 90 days, according to the complaint.

The Texas suit alleges constitutional equal protection and due process violations, and asserts that the arrangement between the company and county constitutes a violation of the federal Racketeer Influenced and Corrupt Organizations law.

The case in U.S. District Court for the Southern District of Texas is McPeters v. Edwards, No. 4:10-CV-1103.

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