Court fee hike staggers justice system

"I don't think anyone involved in the legislative process -- the lawmakers, the governor's office or even the lobbyists -- had any idea of the real draconian effect this would have," Chief Justice Carol Hunstein said on Tuesday. "It could really chill our litigants' access to the courts."

Lester Tate, a Cartersville attorney, offered this prediction, "All kinds of cases aren't going to be heard on appeal because of this. It's not just big business that's affected, it's small businesses and literally every sector of Georgia's economy. Everybody's still in shock over this."

Carrollton attorney T. Michael Flinn questioned whether one of his clients, a bank teller from Bremen, could afford the cost of her appeal.

Sheila Mauk filed suit against Pioneer Ford Mercury over a 2007 Mustang that she purchased and now said is unsafe to drive because of transmission problems. When the car dealer said the car was fine, and the noises she heard were normal, she filed suit to get Pioneer to buy back the Mustang. A judge recently dismissed some of her claims against Pioneer.

The cost of certifying Mauk's appeal could reach $2,000 to $2,500. "That's a lot of money for someone who's already making payments on a car she can't drive," Flinn said.

The Georgia Supreme Court recently adjusted its rules to give its litigants a way around the fee hike, but the Court of Appeals, which handles the vast majority of such appeals, has not. The court's judges, however, are meeting on Wednesday with state bar leaders to discuss the ramifications of the fee increase and might reconsider the proposed rule change, Chief Judge Yvette Miller said.

"We have a responsibility to follow the law and feel uncomfortable making a rule change that goes against a statute that was just passed by the Legislature and signed by the governor," Miller said. "But this fee is absolutely excessive and it makes me wonder how it would be voted on by the Legislature and signed by the governor."

More than 2,400 direct appeals have been filed to the state Court of Appeals during each of the past four years. The fees do not apply to litigants who are found to be indigent and cannot afford to pay them.

Appeals can be brought to the state Court of Appeals or Supreme Court before or after a case goes to trial. Before an appeal can be filed, the case record must be prepared, indexed, copied and certified by the local county clerk's office. For almost four decades, clerks have charged $1.50 per page to prepare and copy appellate records.

When lawmakers this year looked to increase court fees to generate revenue, the Association County Commissioners of Georgia (ACCG) researched dozens of filing fees charged by superior courts, probate courts and sheriffs. It went through the Georgia code and used the Consumer Price Index to determine any increases, Jim Grubiak, ACCG’s general counsel, said.

The $1.50-per-page copying fee had not changed since 1971 and, using the CPI, the commission proposed raising it to $8 per page. By the time the omnibus fee bill was enacted, the per-page rate was $10.

“It’s become a problem, obviously, from the reaction,” Grubiak said. “But we were just increasing fees by doing arithmetic calculations.”

Rep. Wendell Willard (R-Sandy Springs) acknowledged that lawmakers did not realize this was a per-page increase. “Now everybody is saying, ‘Whoa! Wait a minute,’ and I understand that,” Willard said.

Willard said he supports the state Supreme Court’s new rule. “I think it’s a great solution, and it could be a permanent one,” he said. “I hope the Court of Appeals will likewise see a benefit."

Rep. Richard Smith (R-Columbus), a key sponsor of the legislation, said the intent was to raise fees to cover the costs of the services or goods that were provided by state and local governments.

However, Smith said he now understands the fee hike for preparing appeals was excessive. "We don't want to infringe on anybody's rights to get their cases heard in court," he said. "We're probably going to adjust that this next session and get a more realistic fee for that. If there are mistakes, we'll fix them."

The Supreme Court's rule change allows the parties and lawyers on both sides of an appeal to work together to prepare the record, instead of having the party who lost at trial or is appealing an order to pay the clerk's office to do it. The trial judge must resolve disputes about the record.

The North Carolina Court of Appeals has a similar arrangement, though its rules do not require trial judges to settle record disputes. Once the lawyers send the record to the appeals court, it copies the record and legal briefs, charging $1.75 per page, a spokesman said. In South Carolina, parties pursuing appeals put together the court record and pay their own copying costs, Appeals Court Clerk Tanya Gee said.

Marietta lawyer John Bevis said he hopes something can be done to keep litigants from having to pay Georgia's new $10-per-page fee. In 2008, Bevis filed suit on behalf of Atlanta's Lise Wilson and Kent Lindsey, who believed their daughter suffered brain damage during her delivery. The couple is seeking damages from Obstetrics & Gynecology of Atlanta and Northside Hospital, both of which deny any liability, to cover their 9-year-old daughter's medical expenses until she turns 18.

After a Fulton State Court judge dismissed the parents' claims, the couple appealed to the Georgia Court of Appeals. On May 21, the appeals court overturned the judge's ruling and allowed the case to proceed toward trial.

If the appeal had been filed under the new $10-per-page rate, the cost of preparing the record could have been $17,650. "They couldn't have afforded that," Bevis said. "They're already struggling to provide medical care for a brain-damaged child."