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PURPOSES AND USES OF FEES Survey and The use of filing fees in this country had it.. origin in the English tradition of Analysis of compensating court officials from fees charged to litigants.s Since state and local governments started paying the Court Filing Fees salaries of judges and court clerks, how­ ever, two other justifications for the By E. Keith Stott. Jr., lind Richard N. Ross use of filing fees have been emphasized. III late 1975 tile National Cel/ter sta.!! Although the extent of judicial par­ The first is that filing fees deter frivo­ prepared a study of court }fling fees for ticipation in shaping the social order lous litigation, thereby controlling court tlte Missouri o'{lice of State Courts Ad­ and resolving private disputes has caseloads. Recent research has shown, ministrator. The study. a part oJ' a greatly increased during the past few however, that filing fees do not deter larger project to determine tile extent decades, adequate financing of state litigation because they are only a small alld Alaska Judicial Council, for ex­ Becal/se of the continuing illterest ill court services and facilities. The result ample, observed in a 1974 policy paper COllrt jillllg fees. tile Natiollal Cel/ter has often been justice rationed or de­ on court fees: conducted 1I lIew alld more t/W/'OUgtl layed, Or at worst denied.! One commonly recognized pur­ sllrl'ey (~(collrtJi/illgfees ill tile summer The growing interest in court filing pose of the filing fee is .. , for qJ' 1977. Tllis article summarizes the fees ("docket fees") as a source of rev­ limiting crank claims and friv­ IllqjOI' findil/gs of the earlier study al/d enue is a natural result of this situ­ olous lawsuits which might presents the complete results of the re­ ation. Available figures indicate that otherwise be filed .... But the cent surl'ey. It also cOl/tains WI analysis filing fees can generate substantial legitimacy of the claim that the q( the traditional and practical reasons amounts of money, although consider­ fee screens frivolous suits is con­ for tile elldurance qrfilillg fees ill state able variation exists from state to state. siderably more problematic. Cer­ cOllrt ~ystems and CI discussiO/l of the For example, during the 1976 fiscal tainly the working of such a price 11I((jOI' isslles tlial stumM be cOl/sidered year, the Idaho courts produced total mechanism in no way distin­ wllell del'eloping or altering policies re­ revenues of $4.5 million, of which ap­ guishes between the meritorious [CIted /ofiHngfees. proximately $757,000, or 17 percent, contract claims of less value than came from filing tees. 2 In the 1975-76 the filing fee, and the flippant fiscal year, Colorado courts collected claim of the litigious neurotic .... about $2.24 million from civil docket Perhaps for most people the more fees, or 44 percent of the niore than $5 active deterrent to filing of frivo­ million in court-generated revenues.' lous lawsuits is the cost of an at­ On the other hand, only 2.5 percent of torney.6 the $15.4 million of revenue produced A second reason for levying filing fees by the District of Columbia courts in is that they represent a proper charge 1976 came from filing fees. 4 The pOint for the use of civil courts by individuals is that filing fees can be, at the very seeking a private benefit. "User" fees least, a significant SOurce of revenue; have, in fact, become increasingly pop~ and that the issues surrounding them ular with local governments. After the ate therefore important to legisiatnres, property tax, they are the second most judges, COUlt administrators, and the productive source of local governrr,-'''~ public. l'evenue. 7 8 State Court Journal User fees can be an effective substi­ dueing, or that fees should ne(:es­ centage of the total cost of court tute for local non-property taxes. As ap­ sarily be commensurate wi th ben­ operation. plied to courts, however, this approach efits received. 8 - Court fees have constituted a de­ has generated a conflict of opinion. Othel'S reject the "private benefit" clining percentage of the payment Filing fees either become part of a rationale for the existence of filing fees for operating civil courts because state's general fund or are earmarked in much stronger terms. For I!xample: many of the fees have not been re­ by the state legislature for specific pur­ No one would ask the Executive vised to offset the spiraling costs of poses related in one degree or another Branch or the Legislative 13ranch court operations. to the administration of justice (for to justify itself as a self-liqui­ - In most cases the court fees consti­ example, judges' retirement, law li­ dating institution. The people are tute only a small fraction of a liti­ braries, court reporters, legal aid, police perfectly content to pay for those gant's expenses, and when court training, driver education, and night services by way of taxes. Why costs are compared with the expense courts). Some observers view these fees should not the people be equally of legal representation, it is clear as essentially another form of taxation, entitled to the services 'of the Ju­ that even a substantial increase in borne mainly by those who can afford dicial Branch of government with­ user fees would not be a burden in to pay it, since filing fees are often out being required to pay fees most cases. waived for indigents. One critic of this every time they turn al:ound or to - A number of state organizations, in­ view of filing fees has said: take a pauper's oath in order to cluding local counties, strongly sup­ [Tlhe court system as a social in­ get into the courthousl~. 9 port greater use of "user fees" in fi­ stitution must be conceived as a Another objection to the "private nancing the state's court system. "public service" in terms of costs benefit" rationale is that civil cases may - It is reasonable to expect that those and revenues. Like police pro­ provide public benefits at the same time who avail themselves of the dispute tection, ambulance services and they redress private wrongs or may, in settlement machinery of the state fire protection, the courts require fact, be brought in the pubHz interest bear a fair share of the cost In order such a broad economic base of to begin with. And other observers have to maintain that goal, fees should support that they cannot be con­ objected to filing fees because, in their undergo revision at least biennially.)O ceived as potentially self-suffic­ view, the activity of doing justice may The study also suggested that be- ient. The cost of mobilizing fire take on the appearance of a revenue­ cause of the public interest in having equipment and trained fire­ producing commercial enterprise. private disputes settled in an orderly fighters is far in excess of what Despite the existence of these view­ and peaceful manner, the remainder any citizen could afford to pay, or points, filing fees remain a fairly un­ of the total cost of civil court operation would be expected to pay if his controversial tradition, probably be­ should be financed through use of house caught fire. Similarly, the cause they are usually low in amount general tax revenues. Also, increases in cost of a court facility, a judge, (compared with other costs oflitigation) user fees should be subject to appropri­ the clerks of court, etc., could and are paid only on the rare occasion ate provisions for waiver of these costs never be offset by the users of the that a citizen files a lawsuit. The pre­ for indigents.lI process alone. Indeed, the basic valent attitude is that filing fees rep­ reason for having a community­ resent a ·legitimate charge levied by Setting the Filing wide tax base is to provide the legislatures to raise revenue to support Fee Amounts revenues necessary to finance ser­ the increased activities of government, vices which no one uses regularly even though the fees have only a sman In a much less complicated era, but everyone wants available, and relationship to the total cost of adminis­ courts developed itemized fee schedules services which no one can afford terinls justice. An example of this out­ that attempted to relate fees to the act­ but everyone needs the potential look was exprassed 1n a 1973 study of ual costs of services by charging sep­ benefit of. Hence, ... (this] policy the Wisconsin courts. The report con­ arately for each of the many different discussion does not presume in cluded that: court transactions. Fees and costs in the every case ~hat users should pay - Persons who make use of civil courts federal courts before 1944, for example, their own way, that the system for tbe purpose of settling private were charged on a basis similar to many should necessarily be revenue pro- disputes assume a very small per- state courts, with a $5 fee for docketing 9 , Spring 1978 ,~ the case, a $1 fee for transferring the filing fee that is representative of the case to the printed calendar, a 2S¢ fee actual minimum cost to the courts to for entering a continuance, a 2S¢ fee for commence litigation in the courts of the filing a motion, and so forth.12 state. Additional c03ts beyond those Since the 1940s, the federal coutts calculated as part of the filing fee are and many state and local courts have then incurred at no additional charge consolidated the variety of smaller as part of the services considered es­ charges into a single or "flat" fee. Many sential to good government,t4 While states that charge flat fees also main­ computing the minimum cost of gain­ tain itemized lists of additional fees or ing access to the forum is not an easy "step" costs; however, these lists are task, the effort at least may result in less detailed than those used by courts filing fees that have some rational basis. many years ago. The following method might be used Some courts have instituted variable to compute a less arbitrary minimum fee schedules that provide for unequal filing fee. The first step is to detail the charges for different types of cases. The procedure f?r opening a typical new same court may charge different fees case file. This step requires an analysis for personal injury cases, divorces, and of the procedures of the court clerk's probate matters, for example, although office for making docket entries, send­ the initial paperwork for each type of ing out notices, collecting fees, and any case may be substantially the same. In other essential tasks. Next, the usual addition, some states have successfully costs of personnel time (incI uding fri nge implemented different types of gradu­ benefits) and supplies needed to ac­ ated fee schedules, which usually pro­ complish each task must be deter­ vide that the filing fee increases as the mined. Indirect costs (overhead re­ claim or money judgment increases. covery) can be computed at a percent­ During the course of legislative hear­ age of personnel costs. The final step ings that preceded the federal change­ in the process requires adding alI costs over to a flat-fee system, the director of to arrive at a filing fee. If the resulting the Administrative Office of the U. S. fee seems excessive, courts or legisla­ Courts suggested tWo standards that tures can then determine what percent­ are generally considered as desirable age of the fee would be more equitable attributes of a schedule offees for court for the public. services: uniformity, so that the same The effects of increasing or decreas­ fees are charged in a11 districts, and ing filing fees have never been deter­ simplicity, to keep bookkeeping diffi­ mined. While several studies have con­ culties to a minimum. 13 Within this cluded that ~ourt usage would increase framework, there are several rational as the total cost of litigation is re­ alternative ways to set the actual filing duced,'s similar findings have not been fee amounts. One method for civil cases made with regard to the impact of is to average the most frequently im­ changes in docket fees. And, while flat posed filing fees to arrive at the base filing fees vary greatly among state filing fee for all civil cases. The new fee courts, there are no studies indicating might be based on traditional amounts that the amount of litigation varies as but would continue to be readjusted, a result of differences in the filing fees perhaps as frequently as every other charged. year, using some type of cost-of-living Filing fees, as we have observed, are index. a small part of the over alI eost of liti­ Another approach is to establish a gation, and it seems likely that these 10 State CourtJournal can be raised or lowered within a rela­ publishing notices, and "additional selected number of these courts. Al­ tively broad range with no significant costs in cases requiring extraordinary though very incomplete when compared impact on the number of cases filed. services" as determined by the court's with the other tables, the list does serve Obviously there is a threshold at which discretion. 16 to point out the diversity of filing fees the total cost of litigation negates the Table 1 is a complete list of the civil for small claims. potential benefits to the litigants; how­ filing fees for state courts of general ever, as long as fees remain small in jurisdiction. The list was compiled from Graduated Fee Schedules comparison with total costs or potential the responses to a questionnaire mailed Whether a graduated fee schedule return, they should have a minimal ef­ to alI state court administrators in should be used in a court is an import­ fect on that threshold. An exception to August 1977. Most of the states re­ ant policy question for judges and this observation may be that increasing sponded to the survey, but, for those legislators. A graduated fee system or decreasing filing fees will have an that did not, the information was ob­ typically levies higher filing fees wl1en impact on case volume in those courts tained from state codes. the potential resulting benefit, that is, in which the filing fee is the only or California, Colorado, Idaho, Illinois, the amount the plaintiff seeks to re­ major cost that litigants must pay, such and Virginia use gl'aduated fee sched­ cover, exceeds some predetermined as in small claims courts where lawyers ules. Table 2 is a summary of graduated limit. As shown in Table 2, five states are not permitted. civil filing fees used by these courts. have graduated fee schedules in their The survey was primarily des~gned to courts of general jurisdiction. Gradu­ Survey Results gather filing fee information for courts ated fees are more common for courts '/ Present systems of civil filing fees of general jurisdiction; however, it also of limited jurisdiction, and Table 4 in­ vary greatly from state to state. Several produced fragmentary data about civil dicates that eight states use very simple states have fees to commence litigation filing fees in coutts of limited jurisdic­ graduated fee schedules in these courts. by the filing of a complaint as low as $1. tion, which are reproduced in Tables 3 Some states have adopted a gradti­ Such fees are misleading, however, and 4. The filing fees in courts of limit­ ated or "vadable" fee schedule in which because most states with low filing fees ed jurisdiction are, as might be ex­ filing fees vary for different types of civil still use itemized fee schedules in which pected, one-third to one-half of the actions. Maryland District Court, for additional fees are charged for each fees in courts of general jurisdiction. A example, imposes a graduated fee in new pleading or filing in a case (each more precise comparison of fees in contract and tort actions based 011 the procedural "step" in the judicial pro­ courts of general and limited juris­ amount in controversy, and different cess requiring a document incurs a diction is impossible with the infor­ or vadable fees for replevin, summary charge). mation available through this survey. ejectment, and other civil actions. t 7 Many states have eliminated step After the survey was completed, we Graduated filing fee structures may costs in favor of flat filing fees. These decided to include information about initially appear attractive because they fees range from $6 to $70. States with civil filing fees in small claims courts. allow for increased court revenues and~ low flat filing fees wiI1 often have ad­ Table 5 is a list of civil filing fees for a can be developed on a rational basis. ditional fees for other types of plead­ ings, but fee schedules usuaIIy wiII not E. Keith Stott. Jr. .jormerly a se1lior staff attorney at the National Center for State Courts. is the be as detailed or complicated as those Deputy State Court Administrator ill the Colo­ for states using step costs. States with rado Judicial Departmellt. While at the National high fees wiII often have eliminated Center. Mr. Stott directed a study of court fili1lg most other types of basic fees. For ex­ fees that was prepared.for the Missouri O.ffice qf ample, the $70 Kentucky fee includes State Courts Administrator. Richard N. Ross is all attomey with Califomia Rural Legal Assist­ all of the minor fees usually associated alice. He lVas a stqffattorney at tt.eNutional Cen­ with civH cases. There are additional ter.for State COllrts during the preparation qftllis charges, however, for filing a third article alld the earlier study of court .filing fees. party complaint, certifications, pro­ The authors wish to acknowledge the assistance viding copies, attestations, issuing I:Ir­ ofJanet Argo ill compiling and revising much qf Stott Ross the survey in/ormation used in this article, and , del'S of attachment or gamishment after the help 0/ Wini/red Hepper/e in preparing parts judgment, juries, service of process, 0/ the original study.. Spring 1978 11 One author, for example, writing in a ment, preempt the right to dissolve this frequently the major cost of litigation national tax journal, has suggested that legal relationship without affording all because their attorneys are usually pro­ fee structures can be made more "luc­ citizens access to the means it has pre­ vided at no charge. Generally, relief rative" by charging for abnormal use scdbed for doing SO."20 for the poor who cannot afford filing of seli!ices or by imposing special This limited approach has been fees takes the form of motion to the c.harges for services not normally sup­ maintained. Just two months after de­ court to waive the fee under some type plied to the general public. le The wide­ ciding Boddie, the Supreme Court de­ of ill forma pauperis statute. The fed­ spread use of graduated filing fee nied certiorari in five other cases in­ eral government and about half of the schedules, however, may create an volving accesS to the courts. In 1973, the states provide by statute for fee waiver image of the courts as rtvenue pro­ Supreme Court reversed a federal dis­ for indigents. 25 In the states where this ducers that could eventually work to trict court decision invalidating a ref­ form of relief is not available, clear pro­ their detriment in the state budgeting eree's fee in voluntary bankruptcy. In cedures for allowing access to the court process. that case, United States v. Kras, 21 the frequently do not exist. court held that Boddie did not control, INDIGENT ACCESS because access to the courts was not the EARMARKING FILING FEES TO THE COURTS sale source of relief available to bank­ rupts. As recently as June 1975, a fed­ The practice of earmarking filing fees Whatever the amounts of fees or eral district court in New York upheld for specific purposes is prevalent among types of systems used, potential litigants a fee schedule adopted by the New York state courts.2. It is receiving more at­ must not be barred from courts because State Legislature in 1973 that set higher tention as local governments encounter of prohibitive filing fees where use of court fees for the five counties of New difficulties in raising adequate rt?v­ the courts is the sale remedy available. York than for counties elsewhere in the enues. While some states are consider­ In Boddie v. COllnecticut, I9 the leading sta.te.2l The legislation had been chal­ ing eliminating all filing fee "add-ons" case on this point, the United States lenged in a class action on the grounds used to support judicial retirement or Supreme Court held unconstitutional that the fee schedule violated equal pro­ other court programs,27 other states a state statute requiring payment of tection rights because of its dispropor­ have recently revised or implemented fees for filing and service of process be­ tional impact on residents of metro­ earmarking programs.28 fore a divorce action could be com­ politan New York City. Citing a 1973 Although the origin of earmarking is menced in the Connecticut courts. In United States Supreme COUli decision unclear, it probably developed as a re­ this class action, the indigent peti­ that upheld in-state geographical dif­ sult of the historical practice of using tioners were effectively barred from ferences in school financing methods, filing fees to pay court officials for their court since Connecticut had no statute the New York District Court decision work. It is also possible that earmark­ permitting waiver of fees for indigent upheld the territorial classification. ing resulted from inadequate financing litigants, and the Connecticut courts "(A)11 persons suing in the courts of of the activities of the judicial branch did not accept the common-law theory New York City pay the same fees by state and local funding agencies. that the courts have inherent power to whether they are citizens of New York State and local officials are usually sen­ waive fees. City or some other state."23 The court sitive to increasing taxes; earmarking Crucial to the court's ruling was the further pointed out that while the court revenues is a way to accomplish fact that marriage and divorce were plaintiffs "showed that there were sub­ court and coutt-related funding without regulated by the state. In Boddie, the stantially more poor people in New appearing to increase taxes. One author parties had no alternative way to dis­ York City than in the counties outside has characterized this approach as solve the marriage if denied entry New York City ... there was no par­ "monetary buck-passing engaged in by to the courts because of a filing fee they ticularized evidence of the impact of the the legislature in distributing the bur­ could not pay. The Supreme Court's fees on these persons."24 den of expense of administering the ju­ ruling was narrowly limited to that fact There is no way to predict whether dicial branch.' '29 pattern: "Thus we hold only that a the court would have decided the case The importance of earmarking to State may not, consistent with the obli­ differently if the plaintiffs had shown .. ecipient agencies cannot be ignored. gations imposed on it by the Due Pro­ the fees created an adverse impact on Earmarking allows the regular legis­ cess Clause of the Fourteenth Amend- the poor. For indigents, the filing fee is lative budgeting process to be circum- State Court Journal vented and, while the practice may the courts and is not to be taxed as serve the needs of the recipient of the 'costs' against individual litigants. "32 funds, it also prevents regulat review In support of his position, the au thor of expenditures for the services pro­ cites a 1953 opinion of the Oklahoma vided. Earmarking also becomes an Criminal Court of Appeals in which the attractive altemative to courts and court held that a statute providing for other government agencies that too fre­ the assessment of a two-dollar fee for quently find themselves near the bot· a policemen's pension and retirement tom of the list of legislative priorities system fund was unconstitutional in for funding from general tax revenues. that the assessment was not a necessary Yet courts that are considering seeking item of cost incident to the actual dis­ legislative approval of earmarking or position of the case. The court, in re­ that already have earmarked fees might affirming a prior decision to the effect consider some of the potential draw­ that court costs taxed in criminal pro­ backs involved. ceedings must bear a true relation to One criticism of earmarking is that it the expenses of the prosecution, said, can seriously complicate administra­ We regret we ate unable to hold tion. 30 Earmarking can easily become otherwise, but the law does not part of "piecemeal financing pro­ permit us to so hold. However, if cedl';res that erode court efficiency the funds thus collected are neces­ when multiple court units must seek sary as a supplement for the operating funds from an even larget· main tenance of the "Police Pen· number of funding units, and funds sian Fund" as provided, it is the available for improvements vary from duty of the legislature to provide court to court. "31 This is especially true an adequate and legal means for where earmarked fees in populous dis­ raising such funds. The reason is tricts wil1 result in higher revenue than obvious, that under our inad­ in smaller districts. equate salary schedules for police In addition, earma:king strengthens officers, aside from persona1 in­ the impression that courts are sources tegrity, pensions are one of the of revenue for general government op­ best inducements fot'long, honest, erations. Of course, the very existence and efficient service as a peace of filing fees means that courts are officer. Lawful means for pro­ revenue sources. Down-playing this viding such funds are available to function, however, is likely to increase the legislature. but encumbering the chalices of securing improved fund­ the administration of justice as a \ng during the budgeting process and tax-gathering agency is not one enhancing the public image of the of them. Our Constitution pro­ courts as halls of justice. The latter is vides the right of justice shall be particularly true where the funds are administered without sale, denial, earmarked for a purpose that may have delay, or prejudice. Unreasonable Uttle public appeal. costs encumbrances should not The practice of earmarking filing be permitted to shackle the feet fees also raises significant legal issues. of justice. We cannot open the One author has concluded that: "If the door to such in the administration (earmarked] item of expense would be of cdminal jurisprudence.33 incurred regardless of whether any par­ The author goes on to attack judicial ticular case were being tried, then it is retirement funds as one of the more ob­ a general ~xpense of administration of continued Oil page 38 Spril1g:1978 13 Supreme Court of Arizona; prepared by tlJe Court Fiiing Fees colit'd. assessments are charges related to crim­ American Judicature Society. jectionable ways filing fees can be ear­ inal cases, costs and fees are typically "These states are: Georgia, Idaho, Iowa, Min­ marked. associated with civil cases, although nesota, Missouri, New Jersey, New Mexico, Ore­ [T]he benefit derived from the some criminal courts also assess court gon, South Dak?ta, Tennessee, and Wyoming. uSee, Report of the "Iudicial Inquiry Board. efficient administration of justice costs against defendants. Fees are State ofIllinois," December 31,1975. For a back­ is not limited to those who utilize charged for a variety of court services, ground account of the resistance of the Illinois the system for litigation, but is including case filing, probating estates, bench to the disciplinary procedures see, "Recent enjoyed by all those who would marriages, support payment, transcript Cases," Harvard Law Review 84 (February 1971): suffer if there were no such system preparation, and recording of titles. 1002-1012. HMichigan Judicial Tenure Commission, 1972 -the entire body politic. It makes However, in order to simplify the issues Annual Report. no more sense to burden litigants related to court fees, this article has "Wisconsin Judicial Commission, 1972 Annual with paying for judicial retirement considered only the case filing or docket Report. than it would to install a turnstile fees that are charged in all state courts "Edward Schoenbaum, ed., Resource Materi­ at the door to the governor's of­ als for 511t Natiollal COllference of Judicial Dis­ to initiate civil lawsuits. ciplillary CommissiO/ls (Chicago: American Judi­ fice and to pay his salary with Filing fees can be classified or char­ cature Society, 1976): 134-5. admission fees charged to those acterized by the methods used to com­ "Stevens v. Commission on Iudicial Qualifi­ who seek his counsel. If no one pute the total fee. Itemized fees or step cations. were to utilize the court system in costs, which are charges computed for "Note, "Remedies for Judicial Misconduct and Disability: Removal and Discipline of any given terms, the judges' sal­ each separate paper processed or func­ Judges," Nell' York Ulliversity Law Review 41 aries would stilI have to be paid, tion performed by the court, have been (Mar~h 1966): 175. and the retirement system would used by state and local courts since the still require funding. 34 founding of the nation. The trend in It is also suggested that the constitu­ most states, however, is to consolidate tional infirmity in assessing costs not itemized fees into a single filing or flat truly related to the conduct of a par­ fee, with additional costs or fees as­ ticular case is that the assessment rep­ sessed only for extraordinary court ser­ resents a tax that the courts should be vices. A very few courts now use gradu­ constitutionally barred from collecting. ated fee schedules in which the filing The main case cited as authority for fees vary according to the amount this position is a 1951 Oklahoma case claimed or, in one state, the amount of in which the court ruled that the col­ judgment. Even fewer states use vari­ lection of one dollar as costs for the able systems in which different types parole fund was not a r,3cessary ex­ of cases are assessed different fees. pense incident to the prosecution and Filing fees vary greatly throughout the trial of criminal cases and that it was country, and it is not unusual to find repugnant to the concept of separation differences in fee structures in similar of powers. 35 Although the case involved courts within individual states. a cost assessed i.n a criminal case, not The use of filing fees in state courts a civil case filing fee, the court's reason­ in this country is based on traditions ing in arriving at its conclusion cleady inherited from English courts where suggests a potential legal pitfall in ex­ all court functionaries were compen­ tensive earmarking of filing fees. sated from fees collected for their ser­ vices. As in England, fee system court~ CONCLUSIONS in this country gradually decreased. and most if not all judges are now paid by Many types of monelary charges are state or local governments.36 However, imposed by courts, usually pursuant to the use of filing fees in courts continues statutory requirements or guidelines. to be looked upon as a way to offset the While fines, fOlfeitures, and penalty costs of maintaining judicial systems. 38 State CourtJounzal ------~

Several arguments are frequently on the basis of private benefits, it is used to support filing fee increases. The better to acknowledge that filing fees most common is that filing fees are represent charges levied by legislative necessary to deter frivolous litigation bodies to raise revenue to offset the or to channel different types of cases to costs of operating courts, and that they appropriate courts or other nonjudicial have only marginal relationships to the dispute resolution forms, such as coun­ actual costs of administering justice. seling, mediation, or arbitration. Also From this perspective, filing fees are heard is the argument that litigants more like sales taxes than user fees; if should be charged fees for the private you purchase certain goods, you will benefits they derive from the court sys­ be required to pay taxes for the general tem. And some courts and legislatures support of the government. It is the have used fee increases as the justifi­ same with fees. "It may be assumed cation for obtaining needed improve­ that the administration of justice is a ments in judicial services or increasing state function to be furnished at the judicial compensation. state expense, but that the use made of It is doubtful that filing fees now the court by individuals is a proper serve to deter litigation. Filing fees are source of revenue, not related to the small in comparison to the overall costs cost of administration, but simply de­ of litigation, and it is likely that they signed to bring money into the state can be raised or lowered within a rela­ treasury. "38 tively broad range with no significant Although courts should not be looked impact on the number of cases filed. upon as sources of revenue, filing fees However, increasing or decreasing fees are and will likely continue to be signifi­ may have an impact on case volume in cant sources of income for local and those courts where filing fees are the state governments. Judicial decisions most significant costs that litigants pay, have upheld the right of courts to such as small claims courts where law­ charge fees, as long as access is not yers are not permitted or bankruptcy completely barred to those who cannot courts in which fees are not waived. pay them, especially where use of the Filing fees have also been used to chan­ courts is mandatory. With increasing nel cases to different courts within the frequency, filing fees are waived for same jurisdiction. This practice has indigents, so the effect of larger filing been criticized as being unresponsive fees probably will be felt most by Iower­ to public needs because different in­ to middle-income groups with relatively come classes may not have access to the modest claims. same courts, or litigation for lower in­ Given the durability of filing fees, come groups may in fact be diverted legislatures should use more rational away from the judicial system. bases to determine the proper amount Court systems provide private as well of filing fees. There are several alterna­ as public benefits, and it is difficult, if tives for computing fees, any of which not impossible, to separate the two would provide a more consistent and types of benefits so that a "fair share" logical basis than many existing arbi­ of court expenses can be assessed trary methods. Obviously, filing fees against litigants in the ferm of filing coul0\be established on the same basis fees. Certainly justice is a general gov­ as taxes, that is, by considering the ernmental function that benefits those revenue needed to maintain or increase who may not ever be litigants.J7 Rather government services and calculating than trying to increase or readjust fees the amount that must be produced

Spring 1978 39 ------

from all tax sources to meet the sCl-vice through the courts, should be dis­ l·equirements. However, this method cOUl·aged. could be easily abused and lead to the The appropriate method of allocating appearance of rationing justice. court revenues must involve a balancing Filing fees could be set by averaging of thc goals of the financing plan and the most frequently occurring fees and the practical and political reaHties of periodically readjusting the resulting the state involved. Judges and court ad­ average fee, using some type of cost-of­ ministrators should be on guard for living index. Although the initial aver­ proposals to increase filing fees that age fee might be based on trauitional would improperly limit public access amounts, a base fee would be estab­ to the courts or negatively affect the lished that would assure local and state image of the judicial system. In this re­ governments that court-generated rev­ gard, the practice of earmarking court enues would continue to be readjust­ revenues for programs totally unrelated ed on a regular basts. to courts is inappropriate. Moreover, Filing fees can also represent the the disadvantages and potential con­ actual minimum cost to local or state stitutional problems associated with governments to commence litigation earmarking strongly suggest that this in their court systems. Thb Alabama Judicial System. for example, fees, that is, fees assessed of govern­ recently faced a serious crisis when the legislature restricted judicial expenditures to the amount of ment agencies which will eventually revenues coUected by the courts through fines flow back to the same government units and fees. Before the situation was resolved, civil 40 State CourtJoumal jury cases had to be delayed. The Deliver Post. diciary, Fees lIlId Costs ill the United Statcs lOAmerican Judicatul'e Society, supra note 26, May 31. 1977. Courts. Hearings before Subcommittee No.4 of p.82. lAdminis-trative Office of the Courts, 1976 AI/­ the Committee on the Judiciary. Public Document ltMichigan Supreme Court, State FilllJllcil/g IIl/al RepOl't of the Idaho Courts (Boise, Idaho), No. 20, 78th Congress, First Session, November lIlId Mllnagement Reorgallizatioll qf the Mich­ p.17. 1943. igan Court System (Lansing, Michigan: February 'State of Colorado, Office of the State Cout't "This docs not mean that jury fees, witness 1973), p.6. Administrator, Allllual Statistical Report of tile fees, service of process fees, and other fee,~ that "Haysc,slI[lm no\c29, p. 94. Colo/'CIdoJudiciary, September 28, 1976, p. 33. vary with a case should not continue to bechnrgcd "E.t parte MlIIer, 263 P.2d523 (l95:3). 'An additional $372,659 was raised by filing separately. This is a separate policy question that "Hayse,slIpra notc29, pp. 96-97. fees to the Court of Appeals, and $13.7 million, we have not addressed in this report. 'SEx parte Cql,felt. 228 P.2d 199 (951). or about 98 percent, of the total fees was at­ "See American Bar Foundation, supra I/ote 9, "Justice of the Peace Courts have been among tributable to traffic tines. An adjustment for these p. 9; and Phillip L. Spector, "Financing the the last to discontinue compensating judges with amounts would substantially change the civil fee Courts Fees: Incentives and Equity in Civil Liti­ filing fees. In TUllley v. Ohio. 273 U.S. 510 (1927), percentage. The Joint Committee on Judicial gation," Judicature 58 (Fcbruar:r 1975), p. 330. the U. S. Supreme Court declared unconstltu­ Administration in the District of Columbia and 16Kentucky Revised Statutes 23A.200 (2). ti,mal fee compensation systems for justices of the Executive Officer, 1976 Allllual Report qf "Lawrence H, Sharf and Frederic M. Shulman, the peace where payment depended upon a lind­ the District ofColumbia Courts. p. 95. How Much Should We Charge.forJustice? Fees ing of guilt. Despite this ruling, fee compensation 5However, the early English law had no system alld Statutory Costs Paid by Litigallts in NelV still exists in some states - for example, Atkan­ of costs or court fees, and sta tutory fees first came York State (New York: National Center for State sas and Mississippi - though payment is made into existence in the thirteenth century. "Costs Courts, New York State Court Financing Project, based on the number of cases regardless of the have existed so long that there is a general dis­ November 1977), justice's finding. position to regard them as fundamental, as im­ "Alice John Vandermeulen, "Reform of a State "David J, Sanri, "An Overview of Financing mutably bound up with our legal institutions. Fee Structure: Principles, Pitfalls, and Proposals Justice in America," Judicature SO (May 1967), This is a mistake; costs are not established by our for Increasing Revenue," National Tax JOl/mal pp.299-300. constitutions, they are not the product of common 17 (Del!em ber 1964), p. 402. lliKenneth Dayton, "Costs, Fees, and Expenses law, they exist solely and entirely as creatures of "Boddie v. COllllecticut. 401 U.S. 371 (1971). in Litigation," Allnals of the American Academy statutes." Reginald Heber Smith, Justice mid the '"Ibid.• p. 383. qf Political alld Social Sciellce, Vol. 167 (May Poor. 3rd ed. (Montclair, New Jersey; Paterson "Ullited States v. Kras. 409 U.S. 434 (1973). 1933), pp. 44-45. Smith, 1972). p. 20. l'Malles I'. Goldin, 400 F. Supp. 23 (1975). "Reginald Heber Smith, JU$tice lIlId the Poor, 6Alaska JUdicial Council, Report 011 Policy u. S. District Court, Eastern District Court of 3d. ed. (Montclair, New Jersey: Paterson Smith, COllsideratiolls for Court Fee Structures (Anchor­ New York. 1972), p. 21. age, Alaska: February 1974), p. 2. "Ibid.. p. 30. 'Arthur D. Lynn, Jr., "Financing Modernized "Ibid.. p. 25. and Unmodernized Local Government in the Age W'Indigent Access to Civil Courts: The Tiger of Aquarius," Utah Law Review 1971, p. 30. is at the Gates," Vanderbilt LC/I\' Review 26 'Alaska Judicial Council, Sllpra note 6. p. 2. (1973), p. 29. See also American Bar Foundation, For a more detailed discussion of the concept of supra, pp. 11-12. pUblic-private benefits, we recommend Phillip Spector's article cited in the bibliography. '6American Judicature Society, Final/cillg Massachusetts Courts (Chicago: American Judi­ 'Judge Justin Miller, quoted in American Bar cature Society, 1974), p. 81. Foundation, Public Provisioll Jor Costs and Ex­ pellses of Civil Litigatiol! (Chicago: June 1966), 21California Legislature. Joint Committee on pp.10·21. the Structure of the Judiciary. Minlltes of the Ad­ visory' Commissioll, September 9, 1975. IOCitizens Study Committee on Judicial Or­ ganization, Report to Governor Patrlck J. Lucey "For example, Utah enacted a Judicial Retire­ (Madison, Wisconsin: January 1973), pp. 104-105. ment Act in 1971 that provided for an earmarked "Ibid.. p. 105. fee on alI complaints, counter claims, and other U"It is difficult to say with any degree of el\act­ selected pleadings. Utah Code Annot\lted 49-7a- 15. Also, when South Dakot~ recently imple­ nes.~ how much it costs the taxpayer for the dis­ mented a new judicial article creating a unified position of each case, and any effort to do so must of necessity be a mere approximation. Again, court system, the legislature provided specific figures to compute even a rough guess are not allocations of court revenues. Public Adminis­ conveniently available for any but the federal tration Services, Thp Implementatioll of the system ...." Leland L. Tolman, "The Tax­ South Dakota Ullified Judicial System (Cu!cago: 1974), pp. 9-4i. .. payer's Stake in the COUtts," A/l/lals of tlte Americall Academy of Political alld Social "Richard F. Hayse, "Kansas Court Costs: Science, Vol. 287, pp. 132-133. The Quality of Mercy is Strained," Washburn "U. S. Congress, House Committee on the Ju· Law Journal 9 (1969), p. 95. Spring 1978 41 Table 1 Civil Filing Fees for Courts of General Jurisdiction (Compiled September 1977)

Filing Answer Filing Answer State Fee Fee State Fee Fee

Alabama 35.00 -0- Mississippi Alaska 50.00 -0- Chancery Court 2.00 .05p Arizona 30.00 20.00 Circuit Court 1.00 .1Oq Arkansas 20.00" -0- Missouri 25.00 -0- California * Montana 20.00 10.00 Five major countiesb 49.50 34.50 Nebraska 30.00 -0- -S5.S0c -40. SOd Nevada 32.00 25.00 All other counties 29.00 14.00 New Hampshire 14.00r -0- -54.00' -39.00r New Jersey 60.00 30.00 Colorado* 40.00 20.00 New Mexico 20.00' .SO Connecticut SO. 00 -0- New York Delaware Counties within NYC 50.00 -0- Superior 1.00e 1.00 Counties outside NYC 25.00 --0- Chancery .SO" .50 North CaiOlina 34.00 -0- District of Columbia 20.00 -{)- North Dakota 15.00 -0- Florida 22.00i -0- Ohio 7.50' -0- Georgia 4.oOi 1.00 Oklahoma 25.00 -0- Hawaii 30.00 -0- Oregon 24.00 12.50 Idaho* 35.00 16.00 Pennsylvania Illinois* Philadelphia and counties 15.00" -0- Cook County 14.00 5.00 of second class All other counties 25.00 10.00 Counties ofthird to 5.00 -0- eighth class -40.00" Indiana 19.00 -0- Rhode Island 10.00 -0- Iowa 7.00k -0- South Carolina 12.15 -0- Kansas 35.00 -0- South Dakota 20.00v -0- Kentucky 70.00 -0- Tennessee 1.00"' 1.00 Louisiana Texas 25.00 -0- Parish of Orleans 60.00 45.00 Utah 25.00 1 10.00 All other parishes 1.00 1.00 Vermont 25.00 -0- Maine 10.00'" -0- Virginia* 15.00 -0- Maryland 40.00 -0- Washington 45.00 -0- Massachusetts 5.00" -0- West Virginia 10.00 -0- Michigan 30.00 0 -0- Wisconsin 6.00 -0- Minnesota 15.00 10.00 Wyoming 5.00x .50

*These states have graduated civil filing fee mons or subpoena; $.60 for every motion, rule, library fee and reporter fee vary by county. schedules which are described in Table 2. The answer, interrogatory or other miscellaneous dThese figures represent the range in answer fees calculated and shown in this table are based filing; $3.00 for entering each judgment; $2.00 fees for these five counties. The clerk's fee. which on claims of$2,ooO. for swearing jury; and $1.00 for trial before court. includes a $3 Judges' Retirement Fund fee, is "Minimum filing fee is $20. In lengthy cases hAlameda, Los Angeles. Orange, Santa Clara, uniformly $18 regardless of the amount claimed. whcl'e this uniform advance fee is inadequate to and San Diego. Th~ law library fee and reporter fee vlry by cover the schedule of fees· ,set forth in the Arkansas 'These figures represent the range in filing fees county. Statutes, additional fees may be as5essed. The for these five counties. The clerk's fee, which in­ 'These figures represent the range in filing schedule includes some >of the following fces: cludes a $3 Judges' Retirement Fund fee, is uni­ fees for all clmntie.s. excluding the five major $2.50 for drawing, issuing, and sealing any sum- formly $33 when chims exceed $1,000. The law ones. The clerk's fee, which includes a $3 Judges' 42 State Court Joum'll Retirement Fund fee, is uniformly $28 when the ($1 is charged for endorsing, registel'ing, and for issuing each writ, order, or notice, except claim exceeds $1,000. The law library and re­ filing the petition with the clerk of court. The fol­ subpoena; $.75 for each name for issuing sub­ porter fees vary by county. lowing fees are some of the step costs (range $.50 poena, swearing witnesses, entering attendance I These figures represent the range in answer to $10) charged for other services: $1 for en­ and certifying fees; and $6 for calling a jury in fees for all counties excluding the five major ones. dorsing, registering, and filing supplemental or each cause. The clerk's fee, which includes a $3 Judges' Re­ amended petitions; $1 for issuing subpoena or • According to the Administrative Office of tirement Fund fce, is uniformly $13 regardless of summons with seal; $1 for issuing notice of judg­ Pennsylvania Courts, passage of a bill to change the amount claimed. The law library and reporter mentwith seal; and $1 for swearing jury, these fees is expected in the fall of 1977, fees vary by county. m The $10 fee covers entry of an action or enter­ • Includes $10 paid when case is filed and $10 ~A deposit of $75 is required before any suit, ing up and recording the judgment. Step costs paid when case goes to trial by judge or by jury. action, or proceeding is instituted. This deposit ($.50 to $5) are charged for other services! $.50 "'The $1 initial fee covers the filing of each is applied to step costs which range from $.50 to for every blank writ of attachment with a sum­ bond, bill, complaint, motion, or other pleadings, $25. Some of these costs include: $1 for filing mons or an original summons; $.50 for entry of documents, exhibits, or articles, affidavit, record reply to counter claim; $15 for issuing writ of a rule of court upon parties submitting a cause or papers. Court clerks for both circuit and summons; $15 for drawing jury and all services to referees; $.50 for a subpoena or a subpoena chancery courts may charge the following step in respect to trial; $5 for entering judgment in duces tecum: and $2 for a writ of protection or costs which range from $.5:> to $35: $1.50 for is­ docket, except when confessed under warrant of habeas corpus. suing subpoena for each witness; $4 for taking attorney; $1 for tiling and giving written notice "Step costs are charged for the following: $.10 a deposition; $1 for empaneling a jury; $4 for of interrogatories and making entry of such for a blank writ of attachment and summons or examining a party in interrogatories; and $2 fur actions; and $1 for issuing a subpoena for each an original summons; $.10 for a subpoena; and entering judgment. witness. $.06 for vellirefacias for jurors. x The initial fee of $5 is charged for a case with hThe initial fee of $.50 covers the filing of any .. Step costs are charged for the following: $10 five defendants or less and $.25 for each addi­ paper. Step costs, which range from $.50 to $10, for each trial, with or without a jury, in counties tional defendant. Step costs which range from include the following: $.50 for taking an affidavit; having a population of less than 100,000; $15 for $.7.5 to $10 include: $.75 fot issuing a commission $1 for issuing subpoena or citation to give evi­ each trial without a jury and $30 for each trial to take deposition; $.50 for taking, certifying, and dence; $1 for filing interrogatories, giving notice, with II jury in counties having a population of sealing an ~ffir\avit; and $,50 for each certificate anel making entries; and $3.50 for issuing com­ 100,000 or more; and $10 for the entry of any and seal. mission to take depositions. final Judgment in all counties. 'F!orida has a two-part general trial court filing P Step costs, which range from $.05 to $3, in­ fee consisting of mandatory and optional filing clude: $2 for docketing each case; $.10 for setting fees. There are two mandatory fees in a civil down cause for hearing; $.25 for administering action: a $20 statutory dvil filing fee, which the and certifying each oath; $.10 for swearing each clerk remits to the county general fund, and a $2 witness; $1 for each subpocna; and $.05 for filing statutory general service fee, which goes to the each bill, answer, or other paper. state general fund, Optional filing fees such as qStep costs, which range from $.10 to $10, in­ those charged in Dade County ($1 docket fee for clude: $1 for docketing a case; $.25 for entering the publication of legal notices for indigents; each appearance of a defendant; $1 for entering $4.75 for law library system; $2.50 for legal aid each motion or rule on the docket; $.10 for swear­ program; and $15.25 for county capital outlay ing each witness; $.50 for receiving an~ entering account for court facilities) can boost the total verdict; $1 for recording each judgment; $1 for civil filing fee to as much as $45.50. each $ubpoena; and $.10 for filing each bill, fA deposit of $20 is required from which step answer, or other paper. costs are drawn, The step costs range from $,25 , Step costs, which range from $.20 to $10, in­ to $15, which includes some of the following: $4 clude some of the following: $1 for each addi­ for copying and issuing process of summons; $2 tional party, plaintiff, or defendant; $10 for for entering verdict or judgment on minutes; $.50 petition to attach, e.r, parle: $5 for petition to for issuing subpoena or summons; and $1 for the attach with notice; $3 for executions; and $.20 filing of each pleading or instrument subsequent for an original writ. to the complaint, 'This $20 initial fee is computed as follows: lIn counties having a population of 100,000 or $13.75 base rate; $2.75 for compilation fund; more, an additional fee of $1 is charged for a and $3.50 for Supreme Court building addition "journal publication" fee. Step costs range from fund. $.50 to $5 and are charged for other services, I This initial fee of $7.50 includes docketing in such as $2 for every attachment; $5 for every the appearance docket. filing and noting the filing cause tried by jury; $2.50 fot every cause tried by of necessary documents except subpoenas, enter­ the court; $1 for entering any rule or order; and ing caase on trial and motion dockets, and in­ $2 for issuing writ or order, not including sub­ dexing pending ~uits and living judgments. Step poenas. costs which range from $.35 to $6 include: $.75 Spring 1978 43