State Con Law Case of the Week: An Unreasonable Fee

This week there was big news out of Missouri, where its Supreme Court declared a three dollar fee violated the state constitution. This important ruling on such a seemingly unimportant charge is a reminder of the protections that state constitutions provide to those seeking justice, and the need for judicial engagement in making that justice a reality.

Any lawyer who has handled a case in state court—and certainly any normal person who has tried to navigate the court system without an attorney—knows about the pain of court fees. There’s, of course, a filing fee, but then there can be a few other fees that you either need to pay to file a case, or that are assessed against your client if you lose. This can be true in both civil and criminal cases, but they’re sometimes especially bad in criminal matters in certain states. In Georgia, for example, municipal courts impose numerous fees that fund all kinds of projects, including jail construction and prosecutor training, tangentially related to the actual court. When these fees (and the often-accompanying larger fines) aren’t paid, a defendant’s finances can spiral out of control as unpaid relatively small amounts escalate into much bigger amounts due to late charges, interest, and further fines.

And at a certain point court fees go beyond paying for anything close to the court system itself (an arguable “user fee” or “cost of justice”) and simply become a tax financing unrelated government expenditures which those unlucky enough to lose a case have to pay. This not only makes a fee of constitutionally questionable status under the Due Process Clause of the U.S. Constitution, but also under another clause that many state constitutions contain: an “open courts clause.”

Open courts clauses come in a few varieties, but most have their roots in Magna Carta’s “Golden Passage.” As I wrote about earlier this year when discussing the right to a remedy, Article 40 of the original Magna Carta of 1215 stated—in the voice of the King’s Royal We—“To no one will We sell, to no one will We deny or delay, right or justice.” Magna Carta of 1215 famously only lasted 10 weeks, but the language from its Article 40 was incorporated into Article 29 of the revised version adopted in 1225. That stood the test of time in England, and centuries later the language found its way into colonial charters, and later state constitutions.

Missouri’s Open Courts Clause (Article I, Section 14 of its Constitution) very much tracks the language of Magna Carta: “That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.” What does that mean in the context of a court fee? Can a fee be said to “sell” justice, for instance?

Well, in 1986, in Harrison v. Monroe County, the Missouri Supreme Court found a four dollar fee assessed on all civil and criminal cases to violate Article I, Section 14. That fee went toward the compensation of various county officials, including prosecutors, commissioners, and clerks. It was so unrelated to reasonable expenses in the administration of justice, held the court, that the fee was essentially “selling” justice. The court relied on similar cases with similar open courts clauses from North Dakota (invalidating a five dollar fee for every $1,000 of an estate a court administers) and Florida (declaring a $10 fee for cases worth more than $500 to be an invalid tax).

Interestingly, for those who think the current concern with fines and fees reflects a pretty recent phenomenon, one judge who joined the unanimous Harrison opinion wrote separately to highlight court fees as a general barrier to justice at that time, and quoted extensively from a recent report by the National Conference of State Court Administrators. In that discussion the judge mentioned other fees that might pose a constitutional problem, including a three dollar fee assessed on Missouri litigants which helps pay for sheriff pensions.

It took a while, but 35 years later it was that sheriff-pension fee that was before the court in Fowler v. Missouri Sheriff’s Retirement System, and for which the court issued its decision yesterday (June 1, 2021). Parties in Missouri cases had to pay three dollars so that sheriffs had a better retirement. A couple citizens who had paid the fee as part of their speeding tickets sued. Following Harrison, the court said there was a “bright-line rule” that fees could not go toward compensation for executive branch officials and therefore the fee wasn’t “reasonably related to the expense of the administration of justice.”

The ruling may only mean three dollars for each plaintiff, but the case is a class action that, after it’s remanded, could extend to millions of dollars in fees going back years. And that’s a drop in the bucket compared with all the other fees charged across the country that aren’t “reasonably related” to providing justice. We at the Center for Judicial Engagement will be watching that carefully, including the Institute for Justice’s work with municipal courts and excessive fines and fees.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.