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Regardless of Wealth, Are Filing Fees Constitutional In A Civil Case?

Consider a wealthy plaintiff debt collector who has chosen to sue a middle-class American. Courts allow indigent (poor) individuals to defend themselves without paying court fees. But what about non-ingents making up the bulk of the middle class? Why must a nonindigent defendant have to pay a filing fee (or any court fees for that matter) to defend himself in court, especially where he asserts constitutional defenses? The California Constitution, Article I, section 1 reads “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." And section 7a states, “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws…" The California Supreme Court has often affirmed a court's inherent power to waive its own fees and costs, and simply invites courts to consider the risk of litigiousness if deciding otherwise. See e.g., Martin v. Superior Court (1917) 176 Cal. 289 (the right to remit fees originates from the English courts, independent of statute); Earls v. Superior Court (1971) 6 Cal. 3d 109, 113; Ferguson v. Keays (1971) 4 Cal.3d 649, 652; Isrin v. Superior Court (1965) 63 Cal.2d 153, 165. In regards to non-indigents, we find California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 331 (“We agree with the trial court and Court of Appeal that this cost provision [for a teacher to pay one-half the cost of an administrative law judge] is unconstitutional. The imposition upon such a teacher of the open-ended cost of the adjudicator conflicts with the centuries-old common law tradition that the salaries of judges are to be borne by the state, and not by the litigants.") So it appears that where “substantial rights" are involved, the party need not be indigent to be “worthy" of fee waiver. See e.g., Majors v. Superior Court of Alameda Co. (1919) 181 Cal. 270, 276, where the court stated regarding waiver of jury fees and judicial discretion that “such discretion should be used with the utmost care, to the end that unworthy persons who are neither indigent nor possessed of substantial rights may not enjoy this privilege." Note however that the Majors case focused on a case of indigence and discussed the doctrine heavily, so it is difficult to discern its holding apart from indigence. California courts have found filing fees to be unconstitutional applied to non-indigents in the election cases as well, following the U.S. Supreme Court opinion in Lubin v. Panish (1974) 415 U.S. 709 (declaring unconstitutional provisions of the California Elections Code which required all candidates for public office to pay a filing fee in order to obtain a place on the ballot). See e.g., Knoll v. Davidson (1974) 12 Cal.3d 335, 345-349, which involved the same sections of the Elections Code as the United States Supreme Court considered in Lubin, and where the court stated, "It is not our province to dictate what statutory system the Legislature should enact as a replacement but we emphasize that nothing that we have said herein should be deemed to preclude it from establishing a system which includes the requirement of a filing fee, so long as such system also includes a reasonable alternative means of access to the ballot, available to all candidates indigent and nonindigent alike." See also, Donovan v. Brown (1974) 11 Cal.3d 571 (accepting the petitioner’s argument that non-indigent need not pay filing fee to be place on election ballot). So, it appears that two goals are being balanced here by courts: (1) the need to responsibly manage the court system’s financial administration, and (2) fairness, law, and logic that prevents a court from “selling justice." Indeed, as the Supreme Court of New Hampshire explained, some courts of antiquity charged “fixed fees… to expedite or delay law proceeding and procure favor," so modern judicial systems outlawed this practice. LaMarche v. McCarthy, 965 A.2d 992, 998 (2008). In addition to the indigency exemption, the California government code recognizes other exemptions/limits to the filing fee requirements in civil cases. See e.g., California Govt Code 70614(c) (“The fees in this section do not apply to papers filed for the purpose of making disclaimer.")

But is a list of exemptions the ultimate authority? It is well established that "a statute does not trump the Constitution." See e.g., People v. Ortiz, (1995) 32 Cal.App.4th 286, 292, fn. 2; Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163. So the primary question is whether Cal. Const. Article I should be allowed to trump any government code filing fee provision to the extent that it would seek to require payment of a fee in order to exert a fundamental right. According to LaMarche, supra, it appears the law is unsettled in this area. However, the court stated, “Our prior decisions have generally affirmed the validity of administrative or filing fees in the absence of the appearance of impropriety or the deprivation of a fundamental right." According to my research, the focus of courts appears to be whether it would deprive a defendant of any fundamental right (i.e., the right to property and to assert a constitutional defense in court) by requiring payment of funds before a court will even recognize the defendant to prevent default judgment. Is it not a form of ‘buying justice’ when a court recognizes a defendant just just enough to issue a binding default judgment against them (because the plaintiff paid his filing fees), but not enough to hear the defendant's defenses unless he also pays fees? And let's examine the practical financial side as well. Is it realistic in America that lenders would abuse the judicial system by suing middle-class debtors ad naseum in superior courts across the country in order to win automatically in every case where the defendant was not willing to divest himself of $300+ dollars for every responsive pleading fee? Maybe not likely. But together with motion fees, any summary judgment fee, and jury fees, the sum of court fees alone can cost a defendant nearly $1,000 per case. On CNN recently, a 2011 poll was presented that most Americans are ill-equipped to pay for a single $1,000 emergency expense. But again, the issue of our question is not indigence -- we began our question "regardless of wealth". Indeed, focusing on the indigence of the defendant would be missing the point here because there is a traditional and fundamental right to due process and property in California, irrespective of net worth or class. Moreover, there is a right to equal protection of the laws. Generally, a state may not impose a charge for the enjoyment of a right granted by the constitution. Obviously, and simply for the point of illustration, the court cannot charge a fee for breathing the air in the courtroom, because there is a fundamental right to breathe. Why then can the court charge defendant a filing fee to defend his property and assert a rightful constitutional defense in court? Another helpful summary of the law in this area can be found in the Oklahoma Supreme Court case of Fent v. State of Oklahoma, Case No. 107116 (January 19, 2010). Would a logical and fair rule not be that filing fees across the nation should only be required for plaintiffs, because they are the ones utilizing the court system, and only where the filing fees are specifically earmarked for the administration of justice in the courts? The latter earmarking requirement has already been upheld by courts across the country. Id. In Murdock vs. Pennsylvania, 319 US 105 (1942), which was a case invalidating a license fee charged to ‘Jehovah’s Witnesses’ before they could go door-to-door. The Murdock court found the state cannot impose a license, tax or fee on a constitutionally protected right because: "The power to tax the exercise of a privilege is the power to control or suppress its enjoyment. It is true that the First Amendment, like the commerce clause, draws no distinction between license taxes, fixed sum taxes, and other kinds of taxes. But that is no reason why we should shut our eyes to the nature of the tax and its destructive influence. The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down." Moreover, as the Supreme Court stated in Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969), "It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -- as by requiring a permit or license which may be granted or withheld in the discretion of such official -- is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. Staub v. Baxley, 355 U. S. 313, [] 322. And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license." See also, Follett vs. Town of McCormick, S.C., 321 U.S. 573 (1944) (requiring licensing or registration of any constitutional right is itself unconstitutional). It is often difficult to say that any debt collection matter is merely a commercial case, because civil law cases often weigh very important and fundamental rights relating to property, citizenship, and more. But the defendant cannot even explain himself unless he presents himself at a courthouse window with $300 cash. Is that justice? Is that equal treatment in the eyes of the law?

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