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E-Filing Fee Group Rejects "Per Use" Fee

The VBA Alternative E-Filing Fee Group, formed as a result of Act 120, which requires the Judiciary to  meet with court users to examine alternatives to the “per use/per envelope” e-filing fee, met on September 23 with a consultant whom the Judiciary retained in response to Act 120.  See below for a summary of the meeting, during which the group rejected the per envelope fee, an annual subscription fee and a per document fee. Click HERE for other Bar News stories about the e-filing fee issues.  

Summary of Alternative E-Filing Fee Group/ Berry Dunn Meeting on 9/23/20

Doug Rowe from Berry Dunn Consulting opened the Microsoft Teams meeting with the VBA Alternative E-Filing Fee Group in attendance at 10:00 a.m. on September 23. Mr. Rowe provided an agenda that included five items. Each of the agenda items is listed below, with a synopsis of the discussion related to each item. The Alternative E-FiIing Fee Group provided an outline for discussion in advance of the meeting, linked HERE. The outline includes a proposal for an alternative per case e-filing fee that was discussed in conjunction with item 4.  

1. Project Introduction – Act 120 Review

Mr. Rowe briefly referenced the requirement in Act 120 that the Judiciary meet with Odyssey court users to examine alternatives to the per envelope e-filing fee charges, and to listen to and respond to court users’ experience with the Odyssey system. He noted that the Judiciary is also required to report to the Legislature regarding improving court users’ experience with the system, including costs, before October 30.

2. Workshop Purpose

Mr. Rowe explained that the purpose of the meeting was to discuss advantages and disadvantages of different e-filing fee options. He will share the discussion during other meetings that he has set up with various court user groups. Today’s meeting is the first he has held with court users. The Alternative E-Filing Fee Group is also scheduled to meet with Mr. Rowe on October 15, and he will report then on what he has gathered from the other court user meetings. Reference was made to the on-line surveys that court users were encouraged to complete by September 7. Data from the surveys is being compiled. Members requested the survey responses. Mr. Rowe indicated that he isn’t at liberty to provide the responses to the group; he suggested requesting the survey responses directly from the Judiciary. Members will do so.

3. Confirm desire for e-filing capabilities

Mr. Rowe assumes that everyone is in agreement regarding the over-all benefits of a modern e-filing system. Members discussed the fact that not all litigants can take advantage of a modern e-filing system if they lack internet connections or the technology to otherwise access e-filing. Even though self-represented litigants aren’t required to e-file and may paper file, they can’t take advantage of the benefits of e-filing by paper filing. Paper filing allows access to justice, but not the “higher tier” access to justice that e-filing does. An ideal e-filing system would need to be equally available to all court users.

4. Cost Discussion

Mr. Rowe referred to a memo that CAO Pat Gabel submitted to the Senate Judiciary Committee on April 28, 2020 that included brief information about eight states’ e-filing fee funding sources. Mr. Rowe indicated that this is the sole information he has about e-filing fee models in other states. It appears that only two of the eight states charge a per envelope e-filing fee. Andrew Manitsky emailed members additional details he had located on the Tyler website about other e-filing fee models. Members will review that information and will gather additional information about e-filing fee models in other states.

Members asked if the Judiciary anticipates cost savings as a result of implementing an e-filing system and Mr. Rowe indicated that it does. He isn’t aware of the exact cost savings but agreed it would be worth pursuing. It was suggested that the Judiciary’s cost savings should be factored into the e-filing fee analysis.

Mr. Rowe asked for advantages and disadvantages of the following e-filing fee options:

- Fee per envelope. Members cited the numerous disadvantages of the fee per envelope model detailed in the E-Filing Fee Study Committee Report submitted on May 15, 2020 to the Senate Judiciary Committee and summarized in the outline submitted to Mr. Rowe in advance of today’s meeting. Additional disadvantages were cited, including the fact that many filings are court mandated, filings are sometimes necessary due to a court’s scheduling errors, and litigants have the ability to weaponize a fee per envelope model.  Basic principles that should govern a court filing fee are that the fee should be predictable, simple, fair and not an impediment to access to justice. Specific examples were given regarding family, civil and probate cases where the fee per envelope model is neither predictable, simple nor fair and it impedes access to justice on a variety of fronts. Members could not cite any advantages of a fee per envelope model.

-  Fee per case (upon initial filing). Members proposed a $13.50 fee per case model in the outline provided in advance of the meeting. The rationale for the $13.50 figure is as follows: The Tyler contract projects total e-filing fees of $13.50 per case. This is based in part on Tyler’s estimation and the Judiciary’s acceptance of a 2.5 average filings per case projection. Multiplying the $5.40 per envelope fee that the Judiciary and Tyler currently require by the 2.5 average filings per case yields $13.50 per case. A primary advantage of the $13.50 per case model is that none of the disadvantages associated with the fee per envelope model would apply. A disadvantage is it will increase the cost to non-exempt litigants of e-filing a case in the family, civil and probate dockets

- Annual Subscription Model. Mr. Rowe indicated that he was not aware of this model being used anywhere but asked for the group’s reaction to it in concept. The model would involve a firm paying an annual subscription fee for the ability to e-file that year. Members had a negative reaction to the concept, inasmuch as it would violate the predictability, simplicity, fairness and access to justice principles in ways very similar to the ways that the fee per envelope model does.

- Fees paid using the General Fund – Mr. Rowe inquired where the funding would come from if General Funds monies were used to pay for all or a portion of the e-filing fees. Members questioned whether it is necessary to identify specific sources of General Fund monies. They pointed out that one of the responsibilities of state government is to provide a court system to its citizens and that funding a court system is consistent with the responsibility. Whether the Judiciary has effectively advocated in the Legislature for adequate funding for the court system was raised. Dire projections about the state of the General Fund were also noted.

- Fees generated using alternate methods (e.g., raising service fees for traffic citations) – Mr. Rowe did not solicit specific advantages or disadvantages of this method. In general, members pointed out that if the purpose of the e-filing fee is to cover Tyler’s Annual Subscription Fee of $450,000, then using Tyler and the Judiciary’s own figures in the contract, a new case fee of $13.50 should cover the entire cost. If the figures in the contract prove to be inaccurate, one of the ways the difference could be made up is through a fund dedicated to that purpose based on a modest addition to traffic fines. If the difference is in the Judiciary’s favor, the difference should be returned to the Judiciary.

- Fees dependent on document type (i.e., “simple” documents have a lower fee) – Members uniformly rejected this model as violating the, simplicity, fairness and access to justice principles, particularly the “simplicity” principle. The disadvantages of a fee per document approach would be very similar to all the disadvantages of the fee per envelope approach.

-Increase current filing fees to cover the cost of e-filing -  The advantage of incorporating an e-filing fee into the court filing fees is that the Legislature would be involved in the process and there would not be a repeat of unilateral decision-making about e-filing fees that didn’t involve the Legislature or court user stakeholders. The disadvantage is that only some court users would be paying Tyler’s Annual Subscription Fee – non-exempt litigants in family, civil and probate cases. The current per envelope model has the same disadvantage.

- Combination of these - Members clearly and uniformly rejected the fee per envelope and the fee dependent on document type models. If the purpose of the e-filing fees is to pay on-going operational costs of the e-filing system, members suggested that the bulk of the costs should either come entirely out of the General Fund as a cost of state government providing a modern e-filing system to its citizens, or come out of either a per case fee in the range of $12 - $15 per new case, or the same amount added to the court filing fee for new cases. If the actual operational costs prove to be higher than the collected projected fees, a special fund funded by, for example, a very modest amount added to traffic fines, could be slated to cover the difference. Whatever the funding source or combination of sources is, appropriate legislative oversight, with appropriate input from the bar and other relevant stakeholders, should be required before the Judiciary contracts for any future e-filing fees. Any cost savings that are anticipated for the Judiciary should also be factored into the computations.

5. Review and next steps – The Alternative E-Filing Fee Study Group is scheduled to meet with Mr. Rowe on October 15 from 10 am – 12 pm. Mr. Rowe will share the information he gathers from the court user groups that he’s scheduled to meet with between now and then. The meeting ended at 11:50 a.m.