Thursday, December 22, 2011

Courts Are Not Revenue Centers

As foreshadowed recently, the COSCA Policy Paper for 2011, "Courts Are Not Revenue Centers," is now available online.  My thanks to the Policy & Liaison Committee of COSCA, and the always helpful and skilled staff of the National Center for State Courts.

When I became director of OCA in April 2005, we were in the middle of legislative session, and it was all about money, what a surprise. My small agency's part in the drama, accounting for the first several meetings I attended, was about legislation to require large jurisdictions to follow a model collection improvement program that OCA had devised for voluntary adoption. The program was aimed at collecting the myriad costs that are imposed on conviction of a criminal offense. Of course, the purpose of the legislation was to maximize state revenue, and I only learned later about the conversations behind the scenes, where the expected additional revenue was being earmarked for various purposes, some more appropriate than others. This was my introduction to the world of court costs and fees in our state, a topic that has necessarily become much more familiar over time, leading up to my keen interest in developing this newest Policy Paper (formerly "White Paper") for COSCA.

The paper has six parts, including an introduction, definitions and a conclusion, so I am going to focus here on the meaty middle three parts. Two of them are devoted to case law from the states, and I confess that is one thing that appealed to me about this topic; both chiefs and administrators share in this issue. The first of these, Part Three of the paper, addresses the open courts problem of creating too high a barrier to filing a case by imposing filing fees in civil cases, citing cases from Texas, Louisiana, Oklahoma, Alabama, Florida, Arizona and Illinois. As stated by my favorite court, the theme of that section is "If the right to obtain justice freely is to be a meaningful guarantee, it must preclude the legislature from raising general welfare through charges assessed to those who would utilize our courts."

Part Four addresses the corollary problem, a separation of powers problem, of heaping costs and surcharges upon those convicted. Cases from Wyoming, Michigan, Virginia, Arkansas and Missouri are added to the mix. Most courts agree that costs imposed must bear a reasonable relationship to the expenses of prosecution, but courts vary widely in their application of this test.

In Part Five, we have refined and reasserted as principles a set of standards governing court costs and fees, ostensible standards that were adopted by COSCA thirty years ago. In your handout, the last page is a restatement of just those seven standards, couched as statements of policy, so you can take a look if you haven't had a chance to digest the paper. A couple are uncontroversial or so clearly based on constitutional law that they are incontestable. Others you may find more challenging, particularly as you get into the specific history and system in a given state. The committee clearly acknowledges the tension between principles and the realities we all face, but offers the policy statements as guideposts to direct reasoned conversation and the balance of competing interests.

The bottom line: Courts are not revenue centers. That is the title of this year's policy paper, and it goes to the heart of the aspiration that the Policy and Liaison Committee espouses. Because people are compelled to use the courts on occasion, there is a strong pull toward a user fee mentality, and we all feel it. But there are several problems that flow from viewing the courts as revenue centers. The three major ones are unfathomable complexity, unfair financial burdens on those unable to meet them, and inappropriate, even unconstitutional, fund allocation.

I first experienced the unfathomable complexity of the Texas regime back in 2005. That's when I learned that one of my lawyers, Ted Wood, understands the system and publishes guides for clerks, available on Texas Courts Online under the topic "For Trial Courts." Take a look at the documents under Filing Fees and Costs, to get an idea of one state's complexity.

But here in Texas I get the sense that the complexity is less of a concern to legislators than the growing impact on those who pay, and the growing sense that these are taxes by another name. Last session we tried to save indigent defense and legal services with new court costs and fees, and were rejected on that basis.

What I propose is to take this paper to our Judicial Council, and begin to formulate a new cost and fee system, built from the ground up. I want to focus on the clearly legitimate court funds that are fed by costs and fees, and work our way out in both directions from there. See what fees feed into those funds and simplify their structure and administration. And, see what court services are funded, and what else is funded with court revenue, to see if we can provoke a consensus on finding other money to take care of the executive branch programs that currently feed off the courts.

Last session I told the appropriations committee that the courts in Texas generate $450 million for the state, and the state spends $300 million on the courts. Next session I hope we can bring those numbers into a better alignment, but without tying the courts to revenue they generate. It is a difficult and dicey proposition, but as our paper advocates, state court leaders should each try to take on this problem in our respective states.


  1. Bravo. Well thought out and well said.

  2. Carl, the way that I see it, coming to the Appropriations Committee with those figures only plays into the Legislature's desire, by and large, for a cost-benefit analysis (i.e. how much income is produced from the outgo dollar for dollar). This may work for a business, but government has to be treated differently.

    A better method in my mind would be to emphasis item by item what has been done with the judiciary appropriation and how effective that appropriation was at acheiving stated goals (things like CIP, TRIP and other far reaching initiatives, where statistics on program use can inform decisions versus a balance sheet). It is "difficult and dicey" as you say, but I believe it is possible.