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New fees stress clerks, litigants and lawyers

Legislature tacks on extra court costs, then keeps the money in the state’s general fund

Notice of fee increases greets visitors to the Wake County Clerk of Court office. At right, cashier Michael Stephenson processes fee payments. Photos by Jim Sleeper

An increase in the fee for filing motions in civil cases is expected to generate millions of dollars a year, but many court clerks say it has already created confusion, delays and more work at a time when staffs are stretched too thin.

The motion fee, which became effective July 1 along with a number of other fee hikes, is the result of a mutual effort between the legislature and the North Carolina Administrative Office of the Courts, said Judge John W. Smith II, the AOC’s executive director.

Because lawmakers declined to raise taxes to offset the budget deficit, Smith said he was forced to choose one of two unappealing options: help raise revenue for the court or lay off dozens of court employees. He opted for the first.

“We didn’t resist fees because we can’t lose people. … The court has lost 600 positions in the last two and a half years,” Smith said in a recent interview at his Raleigh office. “Resisting fees would mean cutting our own throats.”

The AOC proposed an array of court fee increases to the General Assembly, which accepted the bulk of the ideas and enacted a few additional increases of its own. In the end, lawmakers passed about $61 million in new and higher court fees.

Raising those fees saved at least 160 court jobs, including 100 positions at district attorney offices across the state, according to Smith.

But some of the new fees are creating angst among litigants and clerks.

Of particular concern is the motion fee, which requires lawyers to pay $20 each time they file motions in a civil case in the district or superior courts. The AOC had proposed a new fee for motions, but only on filings that required court action. Then the legislature decided on a blanket fee for nearly all civil motions, Smith said.

“I didn’t see any other alternative,” he said. “I’m always reluctant to increase any fees, but it was an easy choice when it came down to proposing fees to the General Assembly or losing positions.”

No more easy visits

Gone are the days when litigants paid a simple flat fee to initiate a suit and did not have to worry about paying another filing fee for the duration of the case. And attorneys can no longer pop into the clerk’s office and drop off a date- and time-stamped motion without filling out additional paperwork.

Now everyone must wait in line for a clerk to review their filings and figure out how much is owed. That has become a head-scratching task, said New Hanover County Superior Court Clerk Jan G. Kennedy.

“The biggest burden is assessing what fee goes with what, and the motion fee is more obscured,” she said. “We have attorneys come in with a blank check and papers and they’ll say, ‘What do I owe?’”

Raleigh attorney Catharine B. Arrowood, a partner at Parker Poe, agreed that the motion fee exemptions and rules are murky. For instance, it is unclear how or if the fees would apply to motions filed by third parties in a case, such as appointed mediators.

“Who pays the fee? Or is one even due?” Arrowood said. “I think it just reflects that this was not as well thought out as it could have been.”

Smith acknowledges that the fees were rushed into practice – this was the first time in recent history that a new fee has been rolled out so quickly – but contends that there was no other choice. If the fees were postponed for study and to get word of the changes out to litigants, the court would not have been able to balance its budget, he said.

“We know that people aren’t aware of the new fees until they walk into court. We are aware of the confusion, the disruption. And we knew it would be burdensome and fewer people would be carrying the burden,” Smith said. “Despite the hardships, the job is still getting done. They’re doing whatever they have to do to collect these fees.”

Clerk Nancy Lorrin Freeman said her “woefully understaffed” office at Wake County Superior Court deals with hundreds of motion filings every week. Now they have to assess fees, create receipts and enter every fee payment into the computer system using 20-year-old DOS-based software.

“It’s been cumbersome. I don’t know that the requisite workload associated with these fees was fully considered,” she said. “Sometimes the lines can be seven to eight people long and you might be waiting for 20 minutes to file a perfunctory motion to extend time or respond to a discovery request. It’s been a difficult transition.”

Clerks and litigants in rural areas also are struggling to adapt to the new fees, said John I. Satterfield, clerk of the Caswell County Superior Court. Satterfield has seven employees in his office while clerks in most metropolitan areas have about three times as many staffers.

“I think that statewide it’s slowed down operations quite a bit,” he said. “We’ve also seen some attorneys who were unprepared for the increase and it’s causing them to go back and figure out how they’re going to pay for these increases.”

Expensive justice

While a few clerks suggested that the motion fee might cut down on frivolous or serial filings, Smith, the AOC’s executive director, said that was not the intent. He is more worried that higher costs could eventually push regular people out of the courts.

“I am concerned that North Carolina is moving toward a fee-based court system,” he said, adding that there seems to be “no light at the end of the tunnel” when it comes to budget woes and climbing court fees.

Aside from the motion fee, the General Assembly also enacted a new $15 charge for extending the life of a summons. The cost of having the sheriff issue a summons also recently doubled to $30. And the filing fee for counterclaims and cross-claims just went from $100 to $150 in District Court and from $145 to $200 in Superior Court.

The motion fee is anticipated to raise at least $3.5 million annually and protect 70 jobs, Smith said. The new summons fee could bring in about $850,000 a year and could save up to 17 positions.

But contrary to popular belief, court fees are not tucked away in the judiciary’s coffers. The money actually ends up in the state’s general fund and is doled out by legislators as they see fit. That irks some court employees.

“I’m increasingly concerned that we are on a slippery slope of increasing court fees, which potentially limits individuals’ access to the judicial system and which add to the courts’ workload without a guarantee that the monies collected really do come back for the operation of the court,” said Freeman, the Wake County clerk.

Meanwhile, Guilford County Superior Court Clerk David L. Churchill and Satterfield, the Caswell County clerk, said they will not turn away litigants who want to file motions without paying the new fees. They’re even accepting motions that were mailed in without the proper fees.

Indigent litigants can fill out a petition to sue and file motions without paying court costs. But Churchill and Satterfield are letting others who are unaware of the fees or unsure about how much they owe go ahead and file without handing over cash. They note the non-payment of fees in the case and let the judge handling the matter sort it out.

If a litigant doesn’t return with the payment, the judge could toss out the filing because the fee has not been paid, or an opposing party could move to dismiss the filing based on non-payment.

“You’re supposed to collect the fees at the time of filing, but it’s really discretionary,” Churchill said. “After these fees have been in effect for a while we will probably end that practice.”

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