McPeters’ claims are based on a 2003 order from 9th Montgomery County District Court Judge Frederick Edwards, who ordered private litigants in his court to file records online through LexisNexis.
Montgomery County is just north of Houston.
In the federal case, McPeters says Montgomery County District Clerk Barbara Gladden-Adamick enforced the e-filing requirement by refusing to file any document given to her in person; by returning unfiled any document mailed to her office for filing; and by returning a document filed in person with a “Void” mark over the clerk’s file stamp, with a letter instructing the litigant to file through LexisNexis.
“It is a violation of the Texas Constitution that requires access to open courts,” McPeter’s attorney Robert Mays said.
“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.”
McPeters filed the federal class action in April 2010 against Montgomery County, Barbara Gladden-Adamick, Judge Edwards, and Netherlands-based Reed Elsevier dba LexisNexis.
McPeters claimed Judge Edwards’ order restricts litigants’ access to court by forcing them to “pay illegal filing fees, services, charges and taxes, not authorized by statute, and exceeding the amounts required by statute.”
“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.
Lawsuits filed by the State of Texas, Child Protective Services, adoptions and new divorce and annulment cases are exempt from the order – and from LexisNexis fees.
LexisNexis conceals that it charges almost $16 for every document filed in a case, while a competing e-file provider, Texas On-Line, for example, charges $7.24 to file a document and “shows the charge at the time of filing,” according to McPeters’ state complaint.
McPeters filed a discrimination complaint against Montgomery County in 2007 and it came under Judge Edwards’ order when it was transferred to his court.
But since neither Montgomery County nor LexisNexis gives litigants a list of the e-filing charges, McPeters says, she did not learn about the e-filing rates until the company billed her lawyer, in March 2009.
U.S. District Judge Keith Ellison heard Montgomery County’s motion to dismiss McPeters’ case in December 2010.
The county argued that Edwards’ order is legal because it is based on a 1997 miscellaneous order from the Texas Supreme Court, which said that a district court in the county could “from time to time, by written order, select and designate those cases which shall be assigned to the electronic filing system.”
McPeters’ attorney particularly objected to the clerk’s refusing to accept documents that are hand-delivered.
McPeters, who as of April 2010 had paid LexisNexis $444, also claims that LexisNexis’ fees duplicate part of the clerk’s charges when each lawsuit is filed.
In her federal complaint, McPeters wants Montgomery County enjoined from requiring that court documents in its 9th District Court be filed electronically with LexisNexis. She says the order violates her constitutional rights to due process and equal protection.
In the December hearing, Judge Ellison said he was worried about an “issue of standing, as the Supreme Court has found that filing fees don’t necessarily violate due process or equal protection laws.”
The judge said that three federal courts “have held that filing fees are not a violation of due process.” He told Mays his client’s case may be better suited for state court.
So on Jan. 25, in San Antonio Mays filed a state class action under the Texas Deceptive Trade Practices-Consumer Protection Act, claiming that Lexis Nexis’ failure to disclose its charges, and its threats of unlawful collection measures, including reporting nonpaying litigants’ attorneys to the Texas State Bar and presiding judge, violate state law.
LexisNexis is also violating the Texas Consumer Protection Act by passing off its goods or services as those of the Montgomery County District Clerk, and confusing its affiliation with the clerk, McPeters says in her complaint in Bexar County Court.
More than 16,000 Montgomery County litigants have been subject to LexisNexis’ filing fees since 2000, McPeters says.
“LexisNexis charges are an unconstitutional barrier to open courts according to authority from both the Texas Supreme Court and the Texas Attorney General,” McPeters says in her state complaint. “There is no precedent for this barrier. The charges are like a poll tax. Minorities, the poor, elderly and the less educated are likely to be denied their day in court. Is it reasonable to require them to be computer literate? Payment for justice is now a fact of life, but should it be?”
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