The Fort Wayne Journal Gazette has an editorial calling for a study of how court user fees affect access to justice. The General Assembly dramatically raised (among other things) small claims filing fees in large part to fund a judicial pay increase. The Journal Gazette expresses a concern that the fee increases may price average and poorer citizens out of justice.
By way of disclosure, this issue affects me directly. I represent clients who file a lot of small claims suits against debtors who owe in most cases between $300 and $2,000. On their behalf, I probably file something on the order of 600 cases per year. The small claims fees jumped from $46 to $70 plus $10 per additional defendant plus $10 per garnishee-defendant. Ignoring the additional defendant fees, the General Assembly has essentially assessed a tax of $14,400 on my clients. They’ll be able to recover some of that from the debtors — but, keep in mind, most of these individuals are debtors not because they dispute the debt, but simply because they didn’t have enough money to go around. So, a lot of this fee increase is on the backs of the folks who have the least.
More irritating to me, however, is the garnishee-defendant fee. For those of you unfamiliar with the term. A garnishee-defendant is anyone who owes a judgment debtor money. Typically, it’s an employer who owes the debtor a wage. If you hold a judgment against an individual, you can serve the individual’s employer with court papers that bring them within the court’s jurisdiction. If the court concludes that the judgment debtor is employed, it will order the debtor’s wages garnished and the employer is obliged to honor the court’s order. Debtors typically aren’t the most stable employees, they move from job to job, creating a need to name several employers as garnishee defendants. Now, these aren’t defendants in the traditional sense. They don’t take up anything close to the same judicial resources as a traditional defendant. They simply get some mail, answer it, and possibly send garnishment checks into the Clerk. And yet, to add them to the case, a plaintiff has to pay the same $10 they would have to pay to name a defendant who would present an array of defenses and require a week long jury trial.
The garnishee-defendant issue should produce some interesting litigation. Apparently, the trial rules apparently refer to just a “garnishee” without the term “defendant”. (I’m going off of a second hand statement on this, so don’t take it as gospel.) The term is, however, commonly used in the business. The statute creating the fees just refers to “defendant”. Apparently the Clerks association told the county clerks to collect the fee out of an abundance of caution. If they guess wrong, the county clerk potentially becomes personally liable for the uncollected fees. But, not all counties are interpreting the statute to require fees for garnishee-defendants. At least one judge in Carroll County has issued an order with his interpretation that the statute doesn’t require a fee for garnishee-defendants. (Bless you, sir!) So, we’ll see.
Leave a Reply