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Commentary: Filing Fee Waivers Create Unequal Access To Courts
The Connecticut Law Tribune
A well-intended state statute, Connecticut General Statutes § 52-259b allows Connecticut courts to waive filing fees and service of process fees for indigents with no income, or income falling below the poverty level, but despite the laudable intent, it gives rise to unequal court access and encourages an avalanche of frivolous litigation. State Rep. Timothy Bowles (D-Preston), has proposed a bill to address the flaws in the statute by requiring community service in lieu of fee waivers in situations where an indigent seeks a fee waiver for lawsuits involving money damages.
The flaws in the fee waiver statute are readily apparent in the face of widespread abuses at the hands of serial filers who are encouraged to file largely frivolous lawsuits because they simply have nothing to lose. The unintended consequence of the fee waiver is that it has created a class of people who will literally sue at the "drop of a hat."
In New Britain, Cecelia Lebby has received fee waivers for 78 lawsuits, against some 200 defendants, and 44 appeals. In one lawsuit, Lebby sued the Bret Michaels fan club for $22 million because she was only sent one Christmas card and expected more mailings from the fan club throughout the year. Bret Michaels was the singer for the 1980s hair metal band Poison and wrote its signature ballad, "Every Rose Has Its Thorn."
Cecelia Lebby is one of many serial filers who are thorns in the side of the Judicial Branch.
Another litigious indigent is Judith K. Fusari who has received fee waivers for 136 lawsuits, in New Britain and Hartford, and 58 appeals. The waived filing fees in Fusari's cases alone total $55,300.
The intent of a fee waiver is to promote equal access to the courts which is required by the Connecticut Constitution. Despite the laudable intent, fee waivers create unequal access to the courts. Indigent litigants can file any number of lawsuits against an unlimited number of defendants simply because they have nothing to lose. Working poor litigants do not have such unrestricted access to the courts because they have to pay the fees.
A litigant even with a modest middle-class income, at the national average of $40,000 a year, would not be entitled to a fee waiver and would be required to pay a $300 filing fee for each lawsuit and $30 to $40 to serve each defendant. Such a litigant could not afford the nearly $40,000 in filing and service of process fees that would be required to finance Cecelia Lebby's avalanche of litigation since 2007.
In the absence of eligibility for a fee waiver, a middle class litigant has to self-regulate by balancing whether the lawsuit is worth the fees to file it. Fees associated with filing a lawsuit serve a dual purpose of funding the court and, at the same time, discourage frivolous litigation by encouraging serious evaluation of whether a lawsuit is worth the fees to file it.
The impact of frivolous lawsuits is not just in lost fees and wasted state resources. When a business has to retain the services of an attorney to defend against frivolous litigation, that business then has less money to reinvest in new technology, to hire new employees, develop new products, and upgrade buildings and equipment. The resources wasted by businesses to defend against frivolous litigation would be better allocated toward resources that make such a business more competitive in an increasingly competitive market. Keeping businesses competitive in Connecticut should be a priority since a 2011 survey of 500 corporate CEO's listed Connecticut nearly last, 44th place, in the states most friendly to do business in.
If frivolous lawsuits are directed at doctors and insurance companies, then the impact is equally felt outside of court. The expenses of litigation are usually passed on to the consumer in the form of higher insurance rates and service costs.
A proposed reform to the fee waiver system is to require community service in situations where an indigent is seeking a fee waiver for a lawsuit involving money damages. Rep. Bowles has recently put such a bill up for consideration, authored by myself, to require such community service. The amount of community service would be measured by state minimum wage in an amount of hours necessary to finance the fees for which an indigent seeks a waiver. Additionally, if the indigent recovers a judgment, all court fees waived should be repaid to the state.
The wisdom of the proposed reform is to put indigents on an equal footing with all others who do not have such unrestricted access to the courts as indigents have under the present system. A community service requirement will encourage self-regulation and self-reflection before filing a lawsuit. It provides a disincentive to file frivolous lawsuits. The proposed bill will benefit local communities and charities. It will ensure that the courts and state businesses are better directing their limited resources and not wasting them.
The fee waiver will still be available to litigants seeking it in cases where they want to file for money damages. If the community service requirement presents a hardship to an indigent litigant, there is a provision for a hardship waiver of the community service.
A prior bill to reform fee waivers failed when it was put up by the Judicial Branch last year. That bill would have allowed a judge to weigh the merits of the case before making a decision on a fee waiver application. The present proposal is superior to the one put up by the Judicial Branch because it places the burden of evaluating a case on the litigant. Those who have to pay the filing fees already have to self-regulate and evaluate the merits of their own cases by virtue of the fact that they have to pony something up.
The proposed reform puts indigents in that same position. In that sense the proposed reform advances equal access to the courts.
Wyatt Kopp, a graduate of Western New England University School of Law, is a former temporary employee of New London Superior Court and authored the proposed bill which is supported by state Rep. Timothy Bowles, D-Preston.