Troy and Wendy Hadley nearly became homeless because they couldn’t come up with $35 in court fees.
The trouble started while they were both waiting to find out whether they would be approved for Social Security disability benefits. Their disabilities mean neither is capable of holding down a job, so as they waited, they survived on food stamps to eat and relied on a local agency that helps low-income people pay rent to stay housed. But the program only covered Wendy at first, so half the rent went unpaid.
Their landlord filed an eviction notice. But just to respond to that notice, they had to find $35 within 10 days or prove that they were too poor to pay, according to the law in their home state of Montana.
Montana law says that indigent litigants shouldn’t have to pay court fees. But determining who is poor and who is not is another matter. For anyone trying to access the courts without the help of a civil legal aid group, it’s entirely up to a judge’s discretion. And there are just 0.34 legal aid attorneys in the state for every 10,000 low-income people, making the chances of getting their help almost like winning the lottery.
The judge denied the Hadleys’ affidavit of indigency — the paperwork saying they couldn’t afford to pay court fees — despite the fact that they stated that they had zero income.
If they didn’t respond in time to the eviction notice, the landlord could have gotten a default judgment against them and tossed them out without any opportunity for the Hadleys to defend themselves. But they couldn’t respond without coming up with money they didn’t have.
“We would have been summarily evicted, period,” Troy Hadley said.
Then the Hadleys hit a patch of luck: They got connected to the civil legal aid group Montana Legal Services Association, which took their case over the court fee to the Montana Supreme Court. The court decided in their favor that the judge shouldn’t have charged the couple a fee. Eventually, the organization worked with the agency that was covering Wendy’s rent and got it to cover Troy’s as well, and they avoided being evicted.
But the hurdles that the Hadleys had to clear to get back to their lives spring up in front of the poor all the time, all across the country.
A National Shakedown
All 50 states and Washington, D.C. have laws that say filing fees should be waived for indigent litigants — anyone too poor to afford them — so that they can still access the courts. “It’s a very universally accepted notion that if a person can’t afford even to get into court, that’s a significant barrier to justice,” said Martha Bergmark, executive director of Voices for Civil Justice.
But there’s a lot of disagreement about who counts as “poor.”
Five states have the clearest boundaries: anyone who receives government benefits and/or is represented by a legal aid group — given that legal aid organizations only represent people who meet certain financial criteria — is automatically considered too poor to pay, while another seven and Washington, D.C. give the presumption just for those on public benefits.
In another 13 states, including Montana, only those represented by a legal aid attorney are automatically assumed to be low-income. But given the dearth of legal aid groups, those are going to be pretty rare cases.
Offices across the country have had to try to do more with less in recent years as Congress has repeatedly cut funding for the Legal Services Corporation, which gives grants to programs across the country. Many have had to lay off attorneys or eliminate offices altogether. At the same time, more and more low-income people have been trying to access the courts by representing themselves. There are just 0.24 legal aid attorneys for every 10,000 poor people across the country.
In 25 states, there are no rules at all about who will automatically be deemed too poor to pay.
In those cases, it’s entirely up to a judge’s opinion as to who will be allowed to have their fees waived. Amy Hall, an attorney at Montana Legal Services Association who worked with the Hadleys, has seen lots of questionable thinking.
“We hear of fee waiver affidavits being denied for all kinds of reasons,” she said. “If a client put down that they paid per month for Cablevision, the judge thought it was a reason to deny. If they could afford cable, they could just cancel it and pay the court filing fees.”
A different judge admitted to relying on whether someone had tattoos or smelled like cigarette smoke to make the call.
Given how much discretion is left in judges’ hands, things can quickly go wrong for poor people trying to exercise their constitutional right to access the civil courts.
“To be stopped at the very threshold, at the courthouse door, with a financial barrier…seems like the most elementary of barriers to access to justice,” Bergmark said.
Everything’s Messier In Texas
Things went particularly haywire in one Texas county.
In March of 2011, Bettye Merritt was jobless and filing for divorce. Given her financial situation, she filled out an affidavit of indigency to waive the court fees she would have otherwise faced. “I didn’t have the money to actually pay the fees that were necessary,” she said. “It really would have been hard for me to pay at that point.”
Unlike the Hadleys, Merritt’s affidavit was approved and she successfully got a divorce from her husband by early September of 2011 without having to scrounge up money that she didn’t have. The story should have ended there.
But it didn’t. In May of the next year, Merritt received a bill for $374 in supposedly unpaid court fees related to her divorce. “I get this letter saying that I owed these fees,” she said. “I was surprised.” She hadn’t gotten any payout from the divorce, so it wasn’t as if she had any more money to pay fees. But the back of the bill said that if she didn’t pay in 10 days, a sheriff or constable would come to collect the money.
“The way I understood it, it was something that it was in my best interest to do it,” she said. “My thing was, how do I pay something that I don’t technically owe?”
She called up a court clerk, who reiterated that even though Merritt had been told she didn’t owe anything at the time of the divorce, she had to pay the bill now. Without the money to pay the full $374, she worked out a plan to pay it off over eight months.
As with the Hadleys, Merritt was eventually lucky enough to be connected with an attorney. That attorney, Lee A. DiFilippo, filed a lawsuit on Merritt’s behalf, along with a number of other plaintiffs who had similarly been charged court fees after the fact even though they got the court to recognize at the time that they were too poor to pay. It eventually went all the way to the Texas Supreme Court, where they won a ruling saying that anyone in the state who filed an affidavit of indigency that wasn’t contested shouldn’t have to pay fees later on.
Merritt ended up paying the court $75, plus a filing fee, before it was all stopped by the lawsuit. She still hasn’t gotten that money back.
“His pocket is getting fat off of those people who are not able to actually pay that kind of money.”
Of the judge on her divorce case, she fumed, “His pocket is getting fat off of those people who are not able to actually pay that kind of money… You’re stepping on folks and you really don’t care that you’re hurting them, just so long as what you’re doing is benefitting you.”
“He was kind of duping them,” DiFilippo said. “They would still be billed after filing out affidavits and not even having the affidavits contested.”
And it wasn’t just happening in Tarrant County where Merritt lived. The practice had cropped up in other counties as well, including Hale, Swisher, Castro, Motley, and Lamb. The court ruling should in theory halt the practice anywhere else, but the word still has to get out. “I can’t be available for all the poor people to fight,” DiFilippo noted.
Other practices that keep Texas’s poor from accessing the courts almost certainly continue unabated.
In 2014, Texas Access to Justice documented a number of problems plaguing low-income litigants in counties throughout the state. Judges routinely denied affidavits of indigency to people on public benefits, the group found, and delayed case proceedings when the person involved had filed an affidavit. They automatically contested all affidavits that are filed no matter the merits. Poor litigants were also required to pay extra for things like translators, e-filing fees, or processing services.
The legal aid group also found that when affidavits were contested, rather than holding a hearing before a judge they were hashed out in front of staff attorneys, often in a hallway. Different criteria was being used to determine who counts as indigent from county to county and even within the same court.
These practices “prevent people from legitimately using this affidavit,” said Trish McAllister, executive director of Texas Access to Justice. While the review of practices hasn’t been updated since it was last collected, she said, “I’m pretty confident those things are still happening.”
Some of the problems may sound small. But they can end up having a huge impact for a poor litigant. Take the cases that are delayed only because they’re accompanied by an affidavit. “Think about family law cases where there’s an accusation of domestic violence,” McAllister pointed out. Any delays could mean a victim continuing to be abused. “That’s just horrific.”
“If you cannot pay court costs, you can’t get into court.”
“If you cannot pay court costs, you can’t get into court,” she said. “It’s the only avenue people have to get into the courthouse.”
Montana has even more variation in how justice is applied. It’s not just up to most judges to determine who’s poor; nearly all of them also come up with their own forms with different questions for people to file an affidavit of indigency. “There’s no accountability. No one in Montana has made the judges use the same form and use the same criteria in evaluating that form,” said Montana Legal Services Association’s Hall. “There’s really no oversight.”
There’s also usually no recourse if a judge tells someone they’re not poor enough to get court fees waived. “There’s no appeal process, there’s no request for consideration,” she said. Short of filing a lawsuit the way the Hadleys did, the only other option is to find some way to pay the fees. And as the Hadleys experienced, in some states, court fees aren’t just assessed for someone starting a case, but anyone who is responding to one. Anyone can file a lawsuit against you and force you to pay a court fee. Many are higher than the $35 to respond to an eviction notice, stretching up toward $100.
And judges don’t have to explain why they deny waivers. Hall worked with another client who struggled with mental illness and had zero income or even personal property. He lived in a home where he paid nothing in rent and meals were provided. He refused to sign up for public benefits because he didn’t believe in them. His sole possessions were some mismatched shoes and cans of food from a pantry.
Yet he wasn’t impoverished enough for the judge. “The judge never inquired” into his finances, Hall said. “He just looked at the paper and said yes or no.” He didn’t state why on the denial.
It wasn’t until her group filed a motion on the man’s behalf that it came out that the judge had denied the waiver because he thought the client had lied about not having anything. “I know it happens often,” she said.
Even when the laws on the books are strong, however, the poor can fare badly. Wisconsin, for example, is one of the five states whose laws define anyone on public benefits or represented by legal aid as poor enough to have court fees waived.
But according to Korey Lundin, a staff attorney with civil legal aid group Legal Action of Wisconsin, Inc., courts are still often unwilling to waive his clients’ fees, will require additional documentation, or will flat out deny the affidavits when they shouldn’t.
“In most counties the system works well,” he said. “But we do have problems cropping up more recently.”
Lundin has started to find himself in prolonged paperwork battles, sending letters back and forth to judges explaining that the law presumes that his clients are poor enough that they shouldn’t be charged fees. That uses up his time and delays often time-sensitive proceedings for his clients. In one case where it took him an extra half hour to respond to a judge, he noted, “That was a half hour of my time that I wasn’t able to use to represent people in family court.”
As is the case in so many states, there are just 0.37 legal aid attorneys for every 10,000 low-income people in Wisconsin.
Things are probably worse for those who don’t find themselves in his office. “I don’t know what’s going on when somebody doesn’t have an attorney at all,” he said. “I suspect they don’t know what to do… They may pay the fee because they think they have to.”
Cash Rules Everything In Court
So why are courts becoming more and more reluctant to waive fees for poor people or to make them jump through extra hoops before they will?
Lundin wonders if some courts think clients need to have “skin in the game” to have a serious interest in their own cases, and the fees can act as that skin. But, he noted, “Our clients in family court often have quite literally skin in the game in that the case is involving their children. Whether they pay a little bit for a fee or not is probably not going to make them more or less interested in the state of their children.”
More likely, he said, is that it’s all about money. “The court system is pretty strapped financially, so any money they can get they’d like to keep,” he said. “It’s an understandable pressure, but also one that ends up hurting the people who need those waivers the most.”
This has become a larger and larger problem as many states have adopted austerity measures, cutting back on government money, either in the face of the recent recession or anti-tax sentiments. Court systems have felt the knife.
As has been uncovered in places like Ferguson, MO, many jurisdictions have ramped up fines and fees — often levied on poor residents — to keep courts afloat. St. Louis County, home to Ferguson, has drowned its poorest residents in tickets for minor traffic violations, which have generated tens of millions of dollars in revenue. Court filing fees are the other side of the same coin.
“When I started practicing law, court fees were tiny by comparison to what they are today,” Voices for Civil Justice’s Bergmark said. “Court fees have become…a very accepted way of doing business to pay for court systems across America.”