HOUSTON (CN) – A class action filed this week accuses LexisNexis and a Texas presiding judge of violating the Texas and U.S. constitutions by forcing private litigants to use only LexisNexis in order to file court documents in Montgomery County. “It is a violation of the Texas Constitution that requires access to open courts,” said lawyer Robert Mays, who filed the action. “If it was an option, I would have no problem. But the way it is implemented, if you hand documents or mail them to the district clerk, she returns them unfiled.”
The order mandating the use of LexisNexis, a division of the English-Dutch conglomerate Reed Elsevier, has forced at least 5,000 people to pay fees higher than those allowed by state law, according to Mays, who practices in San Antonio.
The class action says the order by Judge Frederick Edwards requiring the use of LexisNexis results in higher fees than allowed by Texas statute and discriminates by allowing government employees to avoid the fees altogether.
“Everybody who files a lawsuit is entitled to be treated the same and charged the same fee for filing and that’s not what’s happening in Montgomery County,” Mays said.
The lawsuit names Edwards as a defendant, along with Montgomery County District Court clerk Barbara Gladden Adamick and Reed Elsevier dba LexisNexis.
Lead plaintiff Karen McPeters claims Adamick based her e-filing mandate on an order that Judge Edwards signed on Feb. 10, 2003, an order that “was signed with a blank line on the first page of the order” where the case number is supposed to be. The clerk then used the order to force everyone to use LexisNexis, according to the complaint.
“Judge Frederick Edwards required Karen McPeters, as a party to a civil lawsuit, to exclusively use LexisNexis fileandserve, an online electronic filing service, to file and serve documents and pleadings in her lawsuit,” the complaint states.
“Since then, Adamick has directed many civil litigants, including Karen McPeters, that each is required to exclusively use LexisNexis on-line e-filing. … Barbara Adamick’s direction to civil litigants is based on Judge Edward’s 2003 e-filing order.
“For each new civil lawsuit that qualifies under the provisions of the 2003 order, the District Court Clerk apparently is supposed to enter the new cause number in the blank on a copy of Judge Edward’s 2003 e-filing order,” according to the complaint.
But McPeters claims “[t]here is no standing order, signed by all of the District Judges in Montgomery County, establishing e-filing requirements for one, or more, of the courts of Montgomery County.”
The complaint continues: “Barbara Gladden Adamick, the District Court Clerk of Montgomery County, Texas, enforced the requirement for Karen McPeters, and other similarly situated civil litigants, to use online E-filing by:
“(a) refusing to file a document tendered to her in person;
“(b) returning unfiled any document tendered to her by mail for filing, and
“(c) returning a document tendered and filed, with a purported cancellation of the District Court Clerk file mark, and a letter directing the preparer of the document to file the document through LexisNexis.”
McPeters claims Adamick “disregarded the known and obvious consequences of her actions,” and LexisNexis has billed her for more than $444, which she paid.
McPeters claims that the plan “has been in place since 1997,” and that LexisNexis “fees and charges are not authorized by law.”
The complaint adds that LexisNexis and Montgomery County have profited financially from their exclusive deal, and that LexisNexis has billed more than 5,000 civil litigants in Montgomery County.
The dispute started last fall with the clerk allegedly exerting power beyond that normally given to court clerks. McPeters filed a Rule 202 petition in November 2009, seeking “to investigate and determine the administrative remedies for refund of the LexisNexis fees’ and charges.”
The petition was assigned to Judge Edwards, but Edwards’ staff allegedly told McPeters that the case would be reassigned, the lawsuit states. Adamick then returned the petition, stamped “VOID,” even though McPeters had filed it electronically, according to the complaint.
Under Edwards’ 2003 order, state of Texas, Child Protective Services, people involved in adoption actions, and some divorce and annulment litigants do not have to pay LexisNexis to file, according to the complaint.
The complaint adds: “Judge Edwards’ 2003 order was objectively unreasonable in light of clearly established law at the time he entered the order, to wit: One may not discriminate against certain classes of civil litigants in deciding who must use online e-filing. One may not discriminate in favor of all criminal litigants, and other classes of civil litigants. Doing so violates Karen McPeters’ rights, and other similarly situated persons’ equal protection rights.”
McPeters wants Montgomery County enjoined from requiring that court documents be filed electronically through LexisNexis. She calls the process a RICO conspiracy that unconstitutionally violates due process and equal protection.
She seeks exemplary damages.