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The Patsy and the Company

May 11, 2021

When a powerful company has a state court administration under its control, naturally it will take full advantage.

Bill Girdner

By Bill Girdner

Editor of Courthouse News Service.

A contract is kind of like a book in that you can understand the story if you read it carefully.

In Maine the court bureaucracy is hiding behind a contract with a vendor that is onerous indeed, and should serve as a lesson to other state courts. I keep bringing it up in Maine because the judiciary’s deal is so bad. Public servants are getting into bed with a huge and highly profitable company and they are being abused.

One of our bureau chiefs, Adam Angione in New York, has long been designated as our special projects editor, which primarily meant staying ahead of the ongoing technological changes in the courts.

He has seen quite a few contracts. But there are still some things he misses, partly because they are so astonishing they don’t quite register. So I was reading through the contract between Maine’s judiciary and Texas software giant Tyler Technologies that he had analyzed when I saw something he missed.

“Once re:SearchMaine’s Production site is available for end-user access it will be the sole electronic access point for document access and document purchasing.”

So this term requires only a small amount of explanation. The re:Search sites are set up by Tyler to control and profit from access to the public record of the courts. Local clerks jump into these deals because they can make some outside-the-budget money to spend on special projects and conferences and the like. 

There is an argument in favor of such a statewide consolidation of access where each local court has a different docket system. And in Texas, for example, where that is the case, each local court is still selling its own documents locally while also taking money from the statewide consolidated system.

But it is unusual and unnecessary where the statewide system is unified, because the state itself with very little programming can offer public access to the court record statewide. In other words, the judiciary does not need to pay an outside corporation large sums of money for what can easily be done with a turnkey contract or a small IT staff.

What the term quoted above means is that Tyler will have monopoly control of the court record in Maine. The local courts are not allowed to provide access to their local records --- it all has to go through the company’s site.

So naturally, when a power has a patsy under control, it will take full advantage. It will, for example, extract a monopoly from the patsy and then demand to be paid for its monopoly.

“Base Fee. Maine Judiciary Branch shall pay Tyler an annual base fee of two hundred thousand dollars ($200,000) for access to the re:SearchMaine portal for the first three years of this Agreement.”

No explanation needed. The judiciary in a state of 1.3 million people must pay a hefty 200k per year for access to its own records.

The contract then takes us to year three. Here is where the state administrators think they get the payoff. They get to split the income with Tyler at that point.

Compare the deal in Maine to the deal in Texas where Tyler is based and has been cozy with the court administrative office for close to a decade. The Texas deal is that local clerks get all the money from copy fees online but the company gets all the income from what it calls “value-added features,” meaning just about any use of the database. The deal in Georgia is very similar to the Texas deal.

But that is not the case with Maine. In Maine, it is a partnership where the two parties are “revenue sharing.” Except one partner has revenue guarantees. Easy to guess which one.

“Revenue Sharing. Tyler and MJB shall share in revenue from value-added features and/or services and document purchases beginning in Year 3 of this Agreement. In Year 3 of this Agreement, Tyler has a revenue floor of $250,000.00 and a revenue ceiling of $600,000.00. The floor and ceiling shall increase 5% per year.”

What that means is that they share income from exploitation of the court record but in fact Tyler gets the first quarter-million dollars, because that is its guaranteed minimum. The corporate then tops out at $600,000.

So those figures seem high for income from the court record in a small state, but, get this, they charge $2 for the first page of a document and $1 per page thereafter, no matter how long the document. Compare to the federal courts: ten cents a page, maxing out at $3 per document.

If, however, that exorbitant charge were to change, to, say, become more reasonable, less crazy high, ah, well then the company would need some compensation, would it not. If the rates change, according to the contract, then “a renegotiation of re:SearchMaine payment terms may ensue.”

That means Maine would have to pay even more money to the 13 billion dollar, Texas corporation. Which is why the director of court administration said in an affidavit that if he were to allow the press to review new filings on receipt, Maine would have to pay “on the order of tens to hundreds of thousands of dollars — under the contract with its vendor.”

He did add that the media and public were free to help him solve his problem by dropping notes into an online suggestion box.

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