E-Filing Challenge Crawls Toward Conclusion

Though defendants claim that anyone can avoid paying the fees by filing a complaint in person, plaintiffs say there is a "Catch-22" to that assertion.

"The filing fees are not separate from the mandated fees that the clerks charge litigants. Defendants concede that the only way to avoid paying the illegal fees is to file in-person in Fulton County using the court's public access terminals ("PATs")," the brief states.

"Filing in person, however, is so costly and burdensome so as to constitute no alternative to e-filing at all.2 (Vol. 1, R-24). In fact, the PATs are often inoperable for days or weeks at a time. (Vol. 5, R -1482, ~ 11 ). Thus, litigants are forced to use File and Serve and the pay the illegal fees. (Vol. 1, R-24). Accordingly, the trial court erroneously held that the illegal filing fees are not mandated by the clerks and that§ 15-6-77 does not apply to e-filing."

In response to Fulton County's claim that it is not responsible for collecting the "illegal fees," plaintiff counterclaims that Lexis Nexis and Fulton County share in setting fees and pocketing the profits.

"Fulton attempts to distance itself from its e-filing scheme by arguing that the Lexis is responsible for collecting the illegal fees. Fulton ignores the fact that Lexis acts as its authorized agent in assessing and collecting the fees," the latest brief states.

It adds: "Each party derives a benefit therefrom and is unjustly enriched. Lexis collects revenue from the illegal and excessive fees. Fulton unlawfully passes off its operating costs to the public."

The brief claims that even though Lexis is an independent contractor, hired by Fulton County, that is no reason that the public should pay for the independent contractor.

"This is a distinction without a difference. Fulton is prohibited from passing these costs off to the public, either directly or indirectly," the brief states.

"It is no different than if Fulton hired a private contractor to make improvements to the courthouse and, rather than paying the contractor, authorized the contractor to charge a toll to the public to enter the courthouse. Absurd as this may sound, this is precisely what defendants are doing. Lexis operates a tollgate to file pleadings in Fulton County. Thus, the trial court erred in holding that the fees are not shared."

Only if a private or state contractor is engaged in a public works project can it claim immunity from damages, according to the Abercrombie rule, used by the trial court to show Fulton County has sovereign immunity, according to the plaintiffs.

"File and Serve is not a structure built by the government nor is it paid for by public funds. Thus, the rule does not apply," the brief states.

"Lexis has not made even a colorable argument that this rule applies. Lexis is liable to plaintiff for a refund of illegal filing fees because: a) File and Serve is not a public works project; b) Plaintiff does not allege trespass resulting in damage to private property; c) Defendants committed willful torts; d) Fulton does not direct or control File and Serve; and e) Defendants' contract is ultra vires and void. ...

"Lexis is equally accountable for its illegal acts as any other private entity doing business in this State. Lexis is not above the law because it provides electronic filing services."

Finally, plaintiffs claim that Fulton County's assertion that its court-mandated e-filing orders trump the state's "paper filing statute," and that the statute prohibits court clerks from refusing filings, is erroneous.

"A trial court order does not supersede a legislative act. Brown v. Hutcheson, 167 Ga. 451 ( 1928)," the brief states.

It adds: "According to Fulton, the statute prohibits the clerks from refusing filings for the reason that they are on 'letter sized paper,' but permits them to refuse filings for the reason that they are on paper (letter size included). Thus, according to Fulton, the statute permits the very thing it prohibits. Rules of statutory construction preclude this nonsensical interpretation."

Oral arguments are scheduled for July 17.

Fulton County is represented by Larry W. Ramsey Jr., Kaye Woodard Burwell and Kristen B. Williams of the Office of the Fulton County Attorney.

The putative class is represented by Steven Newton and Shuli Green of Atlanta.

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