Monday, July 22, 2013

Why E-filing Fees are Not a Tax

Recent news prompts a response on the need for court E-filing Fees.

Recently we heard about an objection to a state legislature bill that would allow for E-filing fees to be charged is that it represented a tax.  We however believe that it should be viewed as an investment; and here’s why.

1. Users Pay.  E-filing fees are not a tax because the user’s who use the system and can pay, pay for it.  This is no different than a person who uses a government parking garage to pay a fee (that likely pays for the bond to build the garage) to enter.  And as we wrote previously in the CTB, we have the history lesson from the English Courts, passed on to the state courts, that the tradition from the time of the Magna Carta that the King expected them to charge fees to support their operation.

2. Cost displacement.  Just as in other new technologies costs and revenues are displaced from the prior historic technology.  In this case the E-filing system is displacing funds from, billable time to “walk the file” to the court, mail, and courier services as that form of the information movement is not as efficient or useful to all involved.  That is simply a fact in today’s internet connected world.  The point is that this transport cost is being spent in the economy with or without E-filing.  Unfortunately resistance to change is not a new phenomenon as history teaches.

3. Government Cost and Efficiency Benefits. The issue here is that a great number of parties involved in the courts are other government agencies such as law enforcement, prosecutors, and public defense.  Now if the courts could get them to “chip in” from their government tax funded budget for the good of all, then that would be a positive approach.  But again because of budgetary competition most often it does not benefit them to do so from a political standpoint. I only know of a few somewhat successful integrated criminal justice projects where this is tried.  Thus courts have increasingly used E-filing fees to expand their services to support other connections who those who cannot pay.

But the bigger benefit is in overall justice system efficiency.  Going electronic can reduce costs by from 100 to 400%.  These savings are across the board to attorneys and businesses once they make the electronic transition. No business would walk away from such a cost savings and yet, because of political views, we see a legislature doing this.

4. Investment.  It is very difficult for courts to acquire funds from their political bodies to invest in new technology innovations in today’s political environment.  E-filing requires software, networks, and computer hardware that all cost money.  While businesses can go to the banks for loans or sell stock into the market for development investment funding, except in the rare cases where government bonds are issued, court and government technology development has not received benefits from this kind of approach.  So many courts have entered into private/public partnerships because the private partner can get loan and investment funding in order to overcome this cost hurdle. And of course either the bonds or private investment have to be repaid somehow.  But if the government is willing to use their tax resources for these investments they are free to do so.  It would be good if they did.

5. Sustainability.  Many courts struggle to fund their ongoing technology costs.  Software systems must be maintained, hardware replace, and network connections paid for.  Some courts have technology fees built into the normal court filing and payment fees and surcharges.  E-filing is a new technology that no doubt requires more resources as it extends change outside of the courthouse walls to all involved.  This means more engagement, communication, and support that require both staff and technological resources.  Again the E-filing fees are aimed at sustaining the system for the benefit of all the participants so that over time it can evolve and gain ever increasing capabilities and efficiencies.

Penny wise, pound foolish. (Burton—Anatomy of Melancholy. Democritus to the Reader. P. 35. (Ed. 1887)


  1. I would happily pay a nominal court fee to support such a program. Paying a middle-man an exorbitant fee for this "service" which, in my experience, is poorly executed, seems not like justifiable efficiency, but creating a bar between he who would and should have access to the courts, and the system that should be there to serve him in the interest of justice.
    This is a money-making scam and nothing more.

  2. Thank you for your comment. Your key issue seems to be the quality of service. There are strategic approaches that courts can take that will allow the consumer to have a choice in services thus creating a competitive environment just as happens in courier services as an example. I'm also sorry that you didn't follow the point that the courts do not have the revenue to stand up and implement these services without private investment because the general government does not want to make that investment.

  3. Since access to the courts is not a commodity--but a constitutional right--what happens to the person who needs a decision from a judge and the efiling system does not allow for a waiver of e-filing fees--even if a waiver of fees and costs is granted based on indigency? If fees are a barrier to accessing the courts, then they they are problematic to our democracy. Only those who pay get access to the courts and those who do not--"good luck--You can't e-file"? I hope not.

    I like the point made in #3--could you share some examples of how efiling fees have been used to help those in need?

    I do agree that fees are necessary to support robust, user friendly systems--after all to keep improving and providing a strong infrastructure you need a long term source of revenue. But I think we need to be careful when making analogies. Courts have monopoly power in making final decisions and if to get that remedy--fees could be a barrier--then we might be watering the rights that started out w/the Magna Carta.

  4. Thank you for your comment. While access to the courts is guaranteed by the constitution for criminal and juvenile matters, it isn't (although it should be) for civil matters. The civil courts have a significant amount of their caseload involved in institutional related matters such as collections and eviction/rent cases. So in many ways the courts serve the commercial interests over the individual litigant. Regarding point #3 we had a plan in place for a state where the funding from these institutional filers would be used to build the self represented system. Unfortunately other interests have resulted in a delay in this approach.
    Regarding fees as a barrier. The answer is yes, they are. But what I am arguing is that e-filing is no different than traditional court fees. And in that, the courts can find a way to create waivers or mechanisms that reduce the barrier when appropriate.