Appeal Says LexisNexis Blocks Court Access

     (CN) – The 5th Circuit will hear arguments as to whether a Texas county created an unconstitutional barrier to court access by requiring some litigants to file court documents electronically through LexisNexis.
     The case stems from a 2003 order signed by Montgomery County Judge Frederick Edwards, mandating e-filing through LexisNexis for all lawsuits in his court. The only cases exempt from the order – and LexisNexis’ fees – are those brought by the Texas or Child Protective Services, as well as adoption, new divorce and annulment cases.
     More than 16,000 litigants in Montgomery, a county just north of Houston, have been subject to LexisNexis’ filing fees since 2000, according to the federal class action filed by Karen McPeters.
     McPeters became subject to this order when the 2007 discrimination complaint she had filed against Montgomery County was transferred to Edwards’ court. In Montgomery County LexisNexis charges $7 for filing fees, $8 for service charges for any document filed online and at least $10 for providing a paper invoice, according to court documents.
     In a 2010 class action, McPeters said the county clerk, Barbara Gladden-Adamick, forced her to e-file using the LexisNexis system by threatening to return her documents unfiled.
     The clerk allegedly refuses to file any document given to her in person; returns unfiled any document mailed to her office for filing; and returns a document filed in person with a “void” mark over the clerk’s file stamp, along with a letter instructing the litigant to file through LexisNexis.
     U.S. District Judge Keith Ellison dismissed the suit on Jan. 27, declining to exercise supplemental jurisdiction over the state-law claims after finding that McPeters had failed to substantiate her federal claims.
     Since Montgomery offers alternatives to e-filing, McPeters did not suffer any violation to her due-process and equal-protection rights, according to the ruling. LexisNexis and Montgomery County had said litigants may choose to bring computer disks to the clerk’s office in the city of Conroe, or they can upload court documents themselves through a free computer terminal office.
     The county also said its e-filing rules also give litigants the option of filing a motion to file documents conventionally with a judge.
     Though Ellison dismissed McPeters’ lawsuit in January 2011, and rejected McPeters’ subsequent motion for reconsideration in April, the federal judge did express concerns about Montgomery County’s e-filing system through a private contractor.
     “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,” Ellison wrote. “It is not clear that the e-filing system, and the accompanying fees, were properly adopted within the bounds of applicable Texas law. The Texas Government Code provides that rules and procedures regulating the use of electronic filing systems, including local rules, must be approved by the Texas Supreme Court.
     “Although the Montgomery County Local Rules were approved in 1997, the fees charged by LexisNexis were not specifically approved,” he added.
     Having rejected two of McPeters’ amended complaints, Ellison declined to let her amend a third time and dismissed the case without prejudice in favor of state court.
     McPeters asked the Atlanta-based federal appeals court for review in July 2011, and LexisNexis replied on Aug. 30.
     The company says Ellison properly dismissed McPeters’ federal claims since neither the county’s e-filing system nor its e-filing charges impose an unconstitutional burden of access to the courts.
     Though McPeters complained of “unauthorized” and “unreasonable” electronic filing fees, she never used the public-access computer and never asked the court’s permission to file her documents conventionally, LexisNexis says.
     McPeters had claimed that she incurred several hundred dollars in filing and service expenses through the course of litigating two lawsuits in Montgomery County, but LexisNexis says those very payments prove she had access to the court.
     LexisNexis says it is Montgomery County’s legal vendor under a 2007 Court Servicing and Licensing Agreement.
     “It is undisputed that nothing in the court service agreement sets the amount of charges for civil litigants who opt to file and serve documents by subscription agreement with LexisNexis, as contemplated by the Local Rule,” LexisNexis wrote (italics in original).
     That agreement expressly governs the relationship between LexisNexis, the Montgomery County courts and the court’s authorized users, made up of employees and authorized agents, according to LexisNexis.
     “The court service agreement does not govern the relationship between LexisNexis and civil litigants,” the brief states.
     “It is also undisputed that nothing in the court service agreements require the County commissioners to ‘review or regulate the charges’ in subscription agreements between LexisNexis and civil litigants,” LexisNexis wrote. “That is because, as plaintiff acknowledges, the LexisNexis charges at issue are not statutory ‘filing fees.’ Plaintiff appears to assume that, because the Texas Legislature regulates ‘filing fees,’ it must also regulate the charge imposed by LexisNexis pursuant to subscription agreements with civil litigants. However, she cites no law requiring contracts between private parties to be regulated by the state.”
     Montgomery County and district clerk Barbara Gladden-Adamick filed their reply brief with the 5th Circuit on August 31. They say Judge Ellison did not abuse his discretion as McPeters had failed to state a plausible claim of unconstitutional burden to court access.
     They also point to the alternatives presented in the county’s Local Rule for its e-filing system.
     The county also denies liability since Judge Edwards signed the local electronic e-filing rules and order, and Edwards is not a policymaker for the county.
     Gladden-Adamick claimed has derivative judicial immunity because, in enforcing the e-file requirements, “she acted in accordance with a facially valid written court order signed by Judge Edwards and/or in accordance with his directions given while he acted in a judicial capacity.”
     Judge Edwards filed his reply brief with the 5th Circuit on Aug. 30. Edwards echoed the sentiments of the other defendants, saying McPeters lacks a case since his order explicitly gives litigants options to file court documents outside of the LexisNexis system.
     McPeters requested oral arguments for the appeal, but each of the defendants claims the case can be resolved based on the briefings and record.

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