Judge Hears Arguments on Mandatory E-Filing

     ATLANTA (CN) - No decision was reached in a hearing on a slew of motions in the class action against LexisNexis Courtlink and Fulton County, challenging mandatory electronic filings of lawsuits through the private company.
     Filings at the heart of the Feb. 21 hearing were Fulton County's request for summary judgment based on sovereign immunity, and plaintiffs' attorney Steven Newton's requests to add Fulton County clerks to the list of defendants, and to add three class representatives as plaintiffs.
     Newton's co-counsel, representing The Best Jewelry Manufacturing Co. and Kenneth Clowdus, were Shuli L. Green and Irwin Stolz.
     Fulton County was represented by Nwakaego Nkumeh, LexisNexis by Tameka Phillips.
     The slow-moving lawsuit, which was transferred to the DeKalb County Courthouse last year after Fulton's entire bench was recused by DeKalb Superior Court Judge Robert Castellani, challenges the legality of the mandatory e-filing system that LexisNexis runs for the Fulton County courthouse. Plaintiffs demand, among other things, a refund of the efiling fees.
     
     Sovereign Immunity
     DeKalb Superior Court Judge Clarence Seeliger heard conflicting arguments on the circumstances by which Fulton County's sovereign immunity might be waived.
     Seeliger asked if the act of filing a case implied a contract between a plaintiff and Fulton County, as such a contract could nullify Fulton's sovereign immunity.
     "There is nothing that Fulton has done, nothing, to waive sovereign immunity," Nkumeh replied.
     "There is no issue of contract between the plaintiffs and the county," Nkumeh said, adding that circumstances under which immunity waivers apply are strictly defined.
     "In none of the statutes at issue is there an implied waiver or an express waiver," Nkumeh said.
     Plaintiffs' attorney Shuli Green disagreed. She said that O.C.G.A. 15-6-77, which dictates filing fees and refund requirements, points to the presence of a waiver.
     "The only reasonable interpretation of that provision is that the General Assembly intends litigants to be able to recoup overpayment of filing fees in excess of the $15," Green said. "That's a specific refund provision, and a refund is a limited waiver of the county's sovereign immunity."
     Fulton's defense claimed that no law specifically strips Fulton of its immunity, and that the county contract with LexisNexis is backed by a court order on how it is to be carried out.
     But the plaintiffs questioned the legality of the court order itself, and the Georgia Supreme Court's approval of the e-filing contract with Fulton County.
     "The e-filing fees that have been charged are filing fees not authorized by any authority, from the General Assembly or by statute," Green said.
     "Did the supreme court approval of the use of e-filing address this?" Seeliger asked.
     "No," Green replied. "The supreme court simply approved the filing scheme. [It] was not authorized to approve it. It should have been done via General Assembly."
     
     New Defendants?
     Newton's team sought to overturn a 2010 order by DeKalb Superior Court Judge Robert Castellani which barred the addition of Fulton clerks as defendants. Castellani assumed that both sides would agree that any court order against Fulton County would be binding on the county's employees and agents.
     "There was no sovereign=immunity case asserted by Fulton at that time," said Irwin Stolz, Newton's co-counsel. "Castellani said [Fulton] had not claimed immunity, so there was no point in adding clerks, because it was not needed. Now sovereign immunity has been claimed, and we need it."
     Stolz said the importance of adding Fulton clerks as plaintiffs stems from their obligations to accept paper filings under O.C.G.A. 15-5-40, and to make the refund mandated by O.C.G.A. 15-6-77.
     "Sovereign immunity does not apply to clerks in their individual administrative capacities," Shuli Green added.
     "The clerks still had a duty to accept paper filings. If they had not, we would not be here," Green said.
     Seeliger countered: "If they did [accept paper filings] they would be violating a court order by Judge Thompson."
     Seeliger postulated that the plaintiffs might assign some liability to Fulton County State Court Chief Judge Albert L. Thompson, for approving the use of LexisNexis at Fulton in 2006.
     "I would say this scheme has been in place since [1999]. It was upon the clerks to inquire into an act of the supreme court that excuses a ministerial duty," Green said.
     Seeliger asked: "Does the order by Thompson and approval by the supreme court of Georgia somehow make them liable because they approved the order of a local judge?"
     Green replied: "The clerk's job is not to blindly follow directions that controvert his duty."
     Seeliger: "You are arguing the clerks would be liable to pay damages?"
     Green: "Yes, but I would imagine there is an indemnification clause between Fulton and the clerks, so I don't think that would happen, but yes."
     Fulton attorney Nkumeh directed the argument back to Castellani's 2010 order against adding Fulton clerks as defendants.
     "Nothing has changed since then," Nkumeh said. "Fulton has filed sovereign immunity on punitive damages, but at the end of the day, we're talking about the clerks being accused of [following] the orders of the court. To hold the clerks individually liable would prejudice the clerks. Fulton has no indemnification agreement; nothing has changed to Castellani's order as to their individual capacity."
     Nkumeh said that Fulton's sovereign immunity status and quasi-judicial immunity should extend to the clerks in their official capacity as they follow discretionary, not ministerial, official duties ordered by the court.
     Newton seeks to add past and present Fulton County State and Superior Court clerks, including Mark Harper, Stefani Lacour, Juanita Hicks and Cathelene "Tina" Robinson in their individual and official capacities.
     Fulton County State Court and Fulton County Superior Court are different courts.
     
     Where does the money go?
     Arguments on the legality of e-filing fees concerned multiple subsections of O.C.G.A. 15-6-77, which governs fees and fee provisions, including whether e-filing fees might be justified as "costs for service of process" under subsection 77b, or under subsection 77e5 on allowance of fees for services.
     "[O.C.G.A.] 15-6-77e5 says the collection of any other fees for services shall not be inhibited," Nkumeh said.
     Green disagreed, questioning again the lawfulness of the court order approving e-filing.
     "This provision says nothing shall be inhibited that is 'authorized by law," Green said.
     Stolz said that 77b rendered the LexisNexis contract unlawful.
     "According to [O.C.G.A.] 15-6-77b, the fees belong to the county," Stolz said. "We have this illegal contract between Lexis on one hand and Fulton on the other that allows Lexis to charge fees."
     Seeliger asked Nkumeh: "Where does the money Lexis charges go?"
     Nkumeh: "To Lexis, apart from statutory fees. This was done as per Judge Thompson's order."
     Seeliger: "Is the county compensated in any way? Let me understand this. Lexis charges the fees, but the clerks aren't compensated in any way
     Nkumeh: "It costs $100 to file. You pay $107, Lexis keeps the $7 and the county gets $100."
     Nkumeh cited O.C.G.A. 15-6-77e5 again, asserting that e-filing fees are not prohibited. She cited O.C.G.A. 15-6-71 to claims that the plaintiffs could have filed a motion for contempt against any clerk who did not perform properly, but the plaintiffs have not done so.
     "It says nothing in the statue is a waiver, or that refunds specifically must be paid. Nothing in it talks about e-filing. We argue again there's no waiver," Nkumeh said.
     Green disagreed with Nkumeh's claim about Fulton's cut of the e-filing fees collected by LexisNexis.
     "Fulton says they don't receive any portion other than the statutory fees. We have documents suggesting Fulton [also] gets a portion of the user fees collected by Lexis," Green said. She did not specify the amount.
     
     Ten More Days
     Newton's legal team sought add class representatives as plaintiffs to maintain the integrity of the class, should a class representative die or forfeit his or her claim in the suit. Prospective plaintiffs include Christy Gail Humber aka Christy Gail Breeland, individually and as administratrix of the estate of Sam Breeland, Lincoln Trucking Inc., and Garth Barnett.
     LexisNexis filed its own sovereign immunity claim, as a contractor, seeking to avoid monetary liability in conjunction with Fulton's immunity-based motion to dismiss. That motion was stayed pending Seeliger's decision on Fulton County's claim.
     Neither of the defendants' sovereignty motions apply to injunctive relief aimed at stopping the use of the LexisNexis e-filing system at Fulton County.
     All parties were given 10 days from the date of the hearing to provide Seeliger with written arguments.