The Vermont Bar Association has called on lawmakers to scrap a new fee imposed through the judiciary’s new electronic filing system that it says represents a “radical departure” from fees of the past. In addition, a legislative attorney has raised questions about the legality of the contract with the vendor providing that service.
The judiciary launched its new electronic filing system in April in the three counties of Orange, Windham and Windsor. That new filing system imposes a $5.25 fee for each “envelope” filing, or documents submitted at one time, in cases including civil, family court, and probate courts.
Criminal cases are exempt from the fee, and there are others exemptions, including for people representing themselves who can still submit paper filings and avoid the electronic filing fee.
The new fee has met with opposition from attorneys across the state, with several saying they had no warning about the upcoming imposition of the fee. They also expressed concern that it would limit access to justice by adding a cost each time submitting a filing.
The bar association has submitted a memo to the Senate Judiciary Committee calling for a suspension of the fee until December while alternative methods can be considered for the judiciary to pay for the continual servicing and support of the new electronic filing system.
“The frequency and cumulative effects of the per-use e-filing fee, a separate charge each time an efiling party makes a separate electronic filing in a civil, family, probate, small claims, environmental and Supreme Court case,” the memo stated, “is a radical departure from court fees historically charged in Vermont state courts.”
The Senate Judiciary Committee has held several hearings on the matter in recent weeks, debating whether the judiciary had the authority in the first place to negotiate with its e-filing service provider such as a fee on users.
The Senate panel took no action on the request by the bar association during a Wednesday session.
Instead, Sen. Dick Sears, D-Bennington and committee chair, said the panel would look for funding sources that could be tapped to cover the money that would be lost if the filing fees were suspended for several months.
One proposal had been to use funds from the $1.25 billion in federal CARES Act money, which comes with the string that it only be used to cover expenses associated with responding to the Covid-19 pandemic.
Pat Gabel, Vermont’s court administrator, told the committee Wednesday that she didn’t think providing the judiciary with CARES Act funding to cover the filing fees expenses met the federal requirements.
Sears suggested that perhaps a nonprofit legal organization aimed at providing access to court matters could be a more appropriate recipient of the CARES Act funding, covering the filing fees until a more permanent solution is found.
The senator said he didn’t believe lawmakers would want to use money from the general fund to cover such an expense, given the already massive costs to the state in responding to the coronavirus pandemic.
The filing fee payment now goes to Plano, Texas-based Tyler Technologies. That’s the firm contracted by the state court system to provide Odyssey, the electronic court records management system.
That fee, according to Gabel, helps cover that company’s 24/7 software support as well as the maintenance of the infrastructure associated with the system.
Theresa Corsones, executive director of the Vermont Bar Association, said that the organization supports proposed legislation that would suspend the filings fee until Dec. 30.
That legislation also calls for the judiciary to meet with representatives of the bar and other court users to come with options other than the current filing fee with the purpose of the judiciary renegotiating its contract with Tyler.
Also, according to the proposal, “any type or amount” of an electronic filing charge would require legislative approval.
Sears, as the hearing Wednesday drew to a close, said while there may be differences over whether the judiciary had the authority to impose the fee, he didn’t believe that is a matter that should be retroactively addressed through legislation.
“I’m hoping that whatever legislation we do would ban either the executive or the judicial branch from instituting fees on Vermonters that didn’t go through a legislative process,” he said. “It’s going in the future, it’s not going backwards.”
He added, “I think in the future this should serve as a reminder that we need to be clear on how we approach these things.”
Earlier in the Wednesday hearing, Michele Childs, legislative counsel, told the committee that the agreements with Tyler that users must sign-off on to submit a filing appear to be “unenforceable” under Act 74, a consumer protection bill approved by the Legislature last year.
“I believe the user agreement contains presumptively unconscionable contract terms as identified in Act 74,” Childs wrote in a memo to the panel, “and the contract could be considered unenforceable once the act takes effect on October 1, 2020.”
The potential violations in the agreement flagged by Childs included a provision that calls for arbitration to settle disputes between users and the firm, which require users to waive the right to a jury trial or to bring a class-action lawsuit as provided in Act 74.
In addition, according to Childs and her memo, the user agreement requires that the arbitrator be a person from Plano, Texas, and that the arbitration hearing take place there.
That appears to be an “unconscionable” contract term under Act 74, according to the memo, because it would occur in an “inconvenient venue,” or a “place other than the state in which the individual resides or the contract was consummated.”
The matter would be up to a court to decide and if Tyler were found to have committed “unfair and deceptive practice in commerce,” according to the memo, the company could be ordered to pay $1,000 per violation.
The Senate committee is expected to continue discussing the electronic court filing system next week.
