Commentary: Just say NO to mandatory efiling in Cook County -- unless....

Today's Law Bulletin carries the chilling story of Cook County Circuit Court Clerk Dorothy E. Brown's request to the Illinois Supreme Court to mandate efiling in Cook County by 2016 (subscription required).

Marc Karlinsky's Law Bulletin article quotes CBA President J. Timothy Eaton as saying a committee on e-filing is meeting with the CBA Board of Managers on Thursday and will likely recommend that the association support mandatory e-filing:

“Those of us who practice in the federal system, we like it,” Eaton said. “It’s efficient, it’s quicker and I hope that’s where the state system heads.

Mr. Eaton is right when he says efiling in the District Court here is efficient and quick. If the Circuit Court of Cook County was really intent on emulating the federal system, efiling in the Circuit Court would be a great idea.

But, as things stand now, efiling in the Circuit Court of Cook County is a terrible idea and this proposal must be turned aside.

PACER is great.

But the Clerk of the Circuit Court does not have PACER.

It has instead a fee-generating monster.

With PACER a lawyer can see and download any document filed in his or her case for free, at least the first time around. The lawyer can look at any pleading in any federal court for no more than ten cents a page. Nothing in the proposed mandatory Cook County efiling scheme gives lawyers or the public access to true copies of filed documents at any price. The Clerk's current electronic docket system is better than nothing -- especially since no files ever seem to be available at the counter for inspection these days -- but it sure isn't PACER.

There are fees associated with case filings, with PACER or over the counter. It is understandable that, where filing fees would ordinarily be permitted, any efiling system might require some additional charge for credit card use: Though most of us never think about it, merchants pay for the privilege of accepting credit card payments. MasterCard or Visa or Discover or American Express pays the merchant almost as soon as the card is swiped. The merchant pays a premium, however, for the risk of default assumed by the card issuer -- a discount on the customer's price of up to 6%, if I recall correctly, depending on the card issuer and the merchant's negotiating leverage. Whether credit card issuers could be induced (or required) to waive that premium in the case of government entities accepting credit card payments -- at the risk of jeopardizing some miniscule portion of their obscene profits -- is a matter of policy I leave to others. (Clerks of Illinois Circuit Courts are free to negotiate fees with credit card issuers in cases of credit card payments tendered for payment of fines or court costs by persons convicted of an offense. See, 705 ILCS 105/27.3b.)

But, even if an additional fee is considered politically acceptable for credit card usage, why would direct draws from the efiler's bank account be charged similarly? If I bring an Appearance or a new Complaint to the Clerk's office to file, there is no charge, over and above the statutorily-authorized filing fee, for taking my office check. If my office account has insufficient funds to cover the check, I will be subject to the wildly imaginative fees and penalties imposed by my bank. (That's a strong incentive never to bounce a check. And if the bounced check came from my client fund account, I would in addition draw the unwanted attention of the ARDC.) As a practical matter, in most cases, the bank will pay the check and chase its customer for the deficiency. The Clerk is paid. If the bank does not also cover the check, the Clerk would dun the would-be filer for the fee, and rightly so. See, 705 ILCS 105/27.2a(gg) (imposing escalating penalties for delinquent fees); see also, 705 ILCS 105/27.2b (allowing interception of State income tax refunds to satisfy delinquent fees). Either way, the Clerk is paid. And, if the Clerk is not paid, the would-be filer may find him or herself in serious trouble with the court.

But, as things stand now, the Clerk of the Circuit Court charges a standard 3.59% fee for credit card or checking account usage alike:

Electronic Payment Fee

A fee of 3.59% of the amount of the transaction is added to each eFiling transaction (credit card, debit card, or ACH) to administer and report the electronic payment. The minimum Electronic Payment Fee per transaction is $1.00.

The amount is automatically added and displayed prior to financial commitment by the filer. The amount will also display on the eFile receipt.

Electronic Payment Fees are non-refundable once the electronic filing transaction has been submitted, and will not be refunded in the event of rejection by the Clerk.

But increased filing fees are only the tip of the iceberg.

There appear to be no "free filings" in the current Cook County efiling scheme.

There is, rather, a $2.95 convenience fee imposed on each efiling transaction -- even (apparently) the ones on which the efiler has already paid a 3.59% fee over and above the permitted statutory fee:

Convenience Fee

There is a $2.95 convenience fee imposed on each electronic filing transaction to pay for computer system usage and electronic service (if applicable).

The amount is automatically added and displayed prior to financial commitment by the filer. The amount will also display on the eFile receipt.

The convenience fee is waived for CLSP and granted 298 Petition filings. The convenience fee is non-refundable once the electronic filing transaction has been submitted, and will not be refunded in the event of rejection by the Clerk.

Can you imagine having to fork over an additional $3 ($4 if the $1 minimum Electronic Payment fee is also added in) every time you need to file anything? That makes the present efiling system wholly indefensible.

Ah, the naive may say, but progress must come at a price. It will cost money to update and automate and implement any efiling system.

Here's a newsflash: The Clerk already receives money for automation. Lawyers, look at any receipt in any file for an Appearance or Complaint in any of your files. You will see that the receipts show separate charges for both an "automation" fee and a "document storage" fee.

The document storage fee is specifically authorized by §27.3c of the Clerks of Court Act, 705 ILCS 105/27.3c, and there can be no doubt that this fee is meant to defray the cost of conversion to electronic record storage -- you know, the digital files where efilings go. Section 27.3c(a) specifically provides, in pertinent part, "The expense of establishing and maintaining a document storage system in the offices of the circuit court clerks in the several counties of this State shall be borne by the county. To defray the expense in any county that elects to establish a document storage system and convert the records of the circuit court clerk to electronic or micrographic storage, the county board may require the clerk of the circuit court in its county to collect a court document fee of not less than $1 nor more than $15, to be charged and collected by the clerk of the court. The fee shall be paid at the time of filing the first pleading, paper, or other appearance filed by each party in all civil cases."

And the separate "automation" fee is authorized by §27.3a of the Clerk of Courts Act, 705 ILCS 105/27.3a. Section 27.3a states, in pertinent part, "The expense of establishing and maintaining automated record keeping systems in the offices of the clerks of the circuit court shall be borne by the county. To defray such expense in any county having established such an automated system or which elects to establish such a system, the county board may require the clerk of the circuit court in their county to charge and collect a court automation fee of not less than $1 nor more than $15 to be charged and collected by the clerk of the court. Such fee shall be paid at the time of filing the first pleading, paper or other appearance filed by each party in all civil cases...."

I may have missed a fee or two, but every party is already paying at least $30 in every case to establish this new efiling Nirvana. So why should we ask our clients to pay more? How can we justify this?

It is significant to note that U.S. Courts, the vendor with whom the Clerk of the Circuit Court is working in setting up this efiling regime, advertises:

E-Filing is the center of court technology for the 21st century. Without e-filing, a court system falls short of the expectations of today's practicing bar. More importantly, it fails to capitalize on the many benefits of modern electronic technology: paper management, increased efficiency of workflow, improved use of manpower (no double entry, fewer documents to handle, fewer counter and telephone inquiries), and lower costs associated with notifications (postage, paper and manpower).

Efiling should save money: Automated filing should mean no more (or at least substantially fewer) clerks stamping pages and operating cash registers -- fewer salaries and pensions -- and no more (or far fewer) clerks with giant stacks of paper sitting on their desks, waiting to be filed.

Using an efiling system should save the county money. Charging more money, therefore, to use efiling makes about as much sense as allowing banks to charge more money to use ATMs than for presenting checks at the counter. Yes, I know. Banks get away with it. They shouldn't. But, regardless, the robber-baron business practices of our banks should not provide the template or inspiration for the provision of government services.

Kalinsky's story today quotes Clerk Brown's spokesperson as saying that "Brown would consider adjusting the fee structure if the Supreme Court mandates e-filing."

That's not good enough. Not nearly good enough.

The Supreme Court, we are told, wants efiling. That's fine. But PACER should be the standard, not the eventual ideal. It is a starting point, not an ultimate goal. The present efiling regime promises nothing like PACER at outrageous cost. I hope the Circuit Court and the Supreme Court (and the bar associations who may consider the current proposal) will just say no to mandatory efiling in Cook County unless and until it equals or exceeds the quality offered by PACER.

Updated 2/26/14 to incorporate reader-provided corrections.