A Stitch in Haste

It’s an issue I had not contemplated before:

Court fees around the country are on the rise. In some states, including Florida and Kentucky, the increases are prompted by state fiscal crises.
…
Faced with a budget crisis, Florida has raised its filing fees to among the highest in the country: $300 for most civil cases, $397.50 for divorce and $270 for eviction actions. Florida does not, as do other states, waive civil filing fees for indigent litigants. Instead, court clerks negotiate payment plans with those unable to pay up front — and add a surcharge for paying over time.

Florida is also putting the squeeze on criminal defendants, most of whom are indigent. Those who cannot afford their own lawyer must pay $50 to apply for a constitutionally mandated public defender. If convicted, they face assessments for the costs of prosecution and defense regardless of their ability to pay. These charges are added to other assessments.
…
Perhaps the worst feature of Florida’s court fees is the fact that only 61% of the new fee collections will go toward funding courts, prosecutors and public defenders, according to a recent news report. The rest will go to the state’s general revenue fund.

I think we can set some outer bounds on the question: All user fees — including court fees — should be exactly that: user fees. They should fund the office or agency imposing them — and nothing more. It is wholly illegitimate to use a courthouse — or a DMV or a business permit bureau or a dog licensing office or any other fee-based part of government — to raise revenue for any other purpose than itself. A traffic ticket is a penalty; a drivers license is not. The former can legitimately exceed the cost of the apparatus behind it; the latter cannot.

In the case of court fees, Florida’s “39% going to the treasury” is indisputably illegitimate and immoral. On that I do not think reasonable minds can disagree.

As for the 61% that stays in the courthouse, I think some mechanism for guaranteeing access is absolutely mandatory. “Loser pays” might be one approach, at least in the civil context. Likewise, a criminal defendant who is never convicted of anything surely cannot be required, in a just society, to actually pay the government anything. A guilty defendant, on the other hand, should be required to contribute, to whatever extent is not unduly burdensome, to the cost of the justice administered to him.

Finally, regarding that $50 “public defender application fee,” I can’t possibly imagine how such a fee is constitutional. I realize that criminal procedure is peppered with exceptions to traditional constitutional protections for minor offenses (e.g., no jury trial for a traffic infraction), but in those circumstances where you have a constitutional right to a public defender, then it follows axiomatically that you have a right to a free public defender. Otherwise the whole concept — “Can you afford your free lawyer?” — becomes a Kafkaesque absurdity.

“Taxation without representation” is a principle of history, not constitutional law. Point conceded. Still, if it is fundamentally wrong to charge people who seek redress at the polling place, then does it not follow that it is fundamentally wrong to charge people to seek redress at the courthouse?

(Via Tax Policy Blog.)

—

A quick sidebar, sorta kinda related:

Can we stop it with this “voluntary tax” nonsense already? If you put your groceries in an unapproved bag, the government forces you to pay the fee, so it’s not voluntary. By Conlin’s logic, sales tax also is voluntary (you don’t have to buy stuff), as are alcohol and tobacco taxes (you don’t have to drink or smoke), air travel taxes (you don’t have to fly), gas taxes (you don’t have to drive), property taxes (you don’t have to own a house), and income taxes (you don’t have to make money).

And I suppose you don’t have to go to court to seek a civil remedy when you believe you have been illegally harmed by another. But shouldn’t you be able to do so without worrying whether the price of justice is beyond your means?