Oklahoma Bar Journal
The Cost of Access to the Courts: Considering Court Fees, Costs and Other Financial Barriers to the Courts in the Context of Article II, Section 6
By Melanie Wilson Rughani
Access to justice is not just a lofty ideal. In Oklahoma, at least, it is a constitutional imperative. Article II, Section 6 of the Constitution provides:
The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.
While Oklahoma courts are “open to every person” at least in theory, there is much work to be done to ensure that this is a practical reality as well. From a lack of accessibility for individuals with disabilities, to language barriers, to a dearth of lawyers in rural and underserved areas, to under-resourced courts and crowded dockets, Oklahomans can face many different barriers to accessing the courts.
For most Oklahomans, the greatest barrier is the extraordinary cost of litigation. Other articles in this issue of the Oklahoma Bar Journal discuss various measures being taken to ensure that those who cannot afford a lawyer nevertheless have access to legal representation. This article will focus on the cost of civil litigation itself – primarily, fees and costs.
CONSTITUTIONAL LIMITS ON FEES AND COSTS
Although courts are to be open to every person and justice must be “administered without sale,” the court has held that a reasonable judicial filing fee does not violate Article II, Section 6. As the Oklahoma Supreme Court has explained, the right of litigants to access the courts does not mean they are entitled to access those courts at no cost. Thus, users of the court system can be required to pay reasonable fees to help fund the maintenance and support of that court system.
Judicial filing fees that are used for other purposes, however, have been held to present an unconstitutional burden on access to the courts. Thus, judicial filing fees imposed to fund laudable but merely court-adjacent executive branch services – such as an adoption registry, a program to coordinate between agencies on cases involving child abuse and neglect or the Office of the Attorney General Victim Services Unit – have been held to violate Article II, Section 6. “While litigants should certainly have to bear a portion of the costs of operating the courts, they should not bear the burden of funding unrelated state programs.”
Judicial filing fees must also be reasonable. In Barzellone v. Presley, the court addressed a claim that a $349 jury fee was prohibitive and, thus, violated Article II, Section 6. After a lengthy analysis, the court ultimately found this fee to be permissible. It was careful to make clear, however, that there were limits, and a $349 fee was awfully close:
This opinion should not be read as a rubber stamp for any decision the Legislature might make on the amount of fees levied in association with jury trials. The Oklahoma Constitution does not anticipate that litigants will be burdened with the entire bill for maintenance of the court system. ... The constitutional right to a jury trial is a personal right, which the Legislature cannot waive through creating a fiscal barrier so unreasonable as to eliminate the right itself. When comparing the jury fee charge with a jury proceeding utilizing 6 jurors, it would appear that the $349.00 fee charge approaches the barrier beyond which the charge could not survive constitutional scrutiny.
Along with ensuring the reasonableness of filing fees, the Legislature must refrain from creating other artificial financial barriers to access the courts as well. In Zeier v. Zimmer, Inc., the court addressed a provision in a sweeping tort reform bill, passed in 2003, that required plaintiffs wishing to pursue a claim of medical negligence to first engage a qualified medical expert, obtain a written opinion that the plaintiff’s claim had merit and then file an “affidavit of merit” as a prerequisite to filing a lawsuit. This requirement was not a “fee” per se. But the plaintiff provided evidence that the cost to obtain a professional's opinion to support such an affidavit could range from $500 to $5,000 – an amount well above the $349 jury fee the court had said was “approach[ing] the barrier” of an unreasonable financial burden in Barzellone. The court in Zeier thus held that the costly “affidavit of merit” requirement crossed the line and violated Article II, Section 6.
Similarly, Article II, Section 6’s constitutional requirements limit the use of costs and fee awards as a means of barring access to the courts. Accordingly, litigants cannot be required to pay outstanding legal fee awards before being allowed to proceed in another case. And fee-shifting provisions must be construed narrowly to ensure that the threat of an attorney fee award does not chill or impede access to the courts.
Most legislative efforts to ensure that judicial fees and costs do not create unconstitutional barriers to access focus on exceptions for litigants who can show they are indigent. Thus, several indigency exceptions are scattered throughout the Oklahoma statutes.
The most important of these is the in forma pauperis statute. This statute allows litigants who are unable to afford fees and costs in civil actions to proceed in district court without payment. A litigant seeking to make use of this procedure must complete and file a pauper’s affidavit. (Sample forms for this affidavit are available through Legal Aid Services of Oklahoma and may also be available from the particular court or tribunal at issue.) If the opposing party challenges the assertion of the pauper’s status with their own affidavit, the court will then hold a hearing to determine eligibility to proceed without payment of fees or costs.
The in forma pauperis provision provides important and necessary relief for individuals with “no means” and who are thus “unable to pay the fees and costs provided for in this section and is financially unable to employ counsel.”  It is important to note, however, that this procedure applies only in limited circumstances. A litigant must be determined to have “no means” of affording the costs of pursuing litigation. While this provision does not require a party to demonstrate “absolute destitution” and courts have some discretion both in determining whether pauper status is appropriate and in requiring partial fees, the process is not designed to assist the many Oklahomans with some, but limited, means. Further, incarcerated individuals are governed by a different statutory scheme aimed at regulating prisoner lawsuits, and the “privilege” of proceeding in forma pauperis can be lost if a litigant demonstrates a pattern of excessive, frivolous or abusive filings.
Accordingly, while exceptions for indigent litigants are necessary, they are not always sufficient. As discussed above, filing fees must be reasonable in all cases – for indigent and nonindigent litigants alike. As the Supreme Court put it:
The Oklahoma Constitution does not anticipate that litigants will be burdened with the entire bill for maintenance of the court system. The Oklahoma courts were never intended to be self-funded, and the increasing degree to which they have become so is disturbing. … The Okla. Const. art. 2, § 6, guarantees the right of individuals to access the courts, and while litigation does not have to be free and entirely at the public expense, at the very least the provision means that justice cannot be for sale. The idea that money cannot be used as a bar to deny justice … is one of the fundamental values of our legal system.
Further, where the Legislature imposes financial barriers to entry to the courts, it cannot always solve the problem by creating indigency exceptions. Indeed, the Legislature attempted to resurrect its “affidavit of merit” requirement this way twice, without success. The second time, the Legislature added a provision that allowed an indigent plaintiff to forego the affidavit of merit if they requested an exemption from the court clerk. But the court held that this provision failed “to fully remedy the[ ] ills” it had identified in Zeier because, among other things, such an exemption still required a nonrefundable application fee of $40, and “$40.00 is still a hurdle to the indigent.” And even when this $40 fee was removed in a third iteration and, thus, an indigent could proceed thereunder without any additional cost, the affidavit requirement remained for everyone else “a costly, meaningless and arbitrary barrier to court access” and was held unconstitutional. The court admonished the Legislature: “To be clear: whether in the context of a medical liability, professional liability, or – as in this case – expert liability, court access cannot be conditioned upon a plaintiff's ability or inability to pay ‘some liability or conditioned coercive collection devices.’”
OTHER MEASURES TO REDUCE THE COST OF LITIGATION
The Oklahoma Legislature has taken some steps outside the indigency context to reduce the cost of litigation, at least in some areas. For example, the Protection from Domestic Abuse Act, 22 O.S. §60 et seq., enacted a number of measures to facilitate access to the courts for victims of domestic violence. It requires the Administrative Office of the Courts to prepare a standard form petition for a protective order, it requires that pre-printed petitions be available in the court clerk’s office, and it requires the clerk or a victim-witness coordinator to assist in the completion of the petition. It also prohibits the imposition of filing fees, service of process fees and attorney fee awards upon the plaintiff unless the court finds that the petition was “filed frivolously.”
The Legislature has also enacted some larger structural changes designed to reduce the cost of litigation. For example, the Small Claims Procedure Act provides for lower fees and streamlined court procedures for certain types of actions, including cases where the amount in controversy does not exceed $10,000. And recent changes to the Oklahoma Discovery Code, such as the imposition of a “proportionality” requirement, have attempted to reduce the cost of discovery for civil litigants.
Nevertheless, the cost of litigation in Oklahoma remains, in many cases, prohibitively expensive. When considering proposals for judicial reform, we must all keep in mind the dictates of Article II, Section 6 of the Oklahoma Constitution: “The courts of justice of the State shall be open to every person,” and “right and justice shall be administered without sale, denial, delay, or prejudice.”
ABOUT THE AUTHOR
Melanie Wilson Rughani is a shareholder and director at Crowe & Dunlevy PC, where she serves as co-chair of both the Appellate and Initiative Petitions practice groups. She regularly handles appeals and original actions in the Oklahoma Supreme Court.
 There are, of course, innumerable barriers to access justice in criminal proceedings as well. Because the rights of criminal defendants are governed primarily by other constitutional provisions and statutes unique to the criminal context, such issues are outside the scope of this article.
 Barzellone v. Presley, 2005 OK 86, 126 P.3d 588.
 Fent v. State ex rel. Dep't of Hum. Servs., 2010 OK 2, ¶¶16-17, 23-25, 236 P.3d 61, 68.
 Id. ¶25.
 Barzellone v. Presley, 2005 OK 86, 126 P.3d 588.
 Barzellone, 2005 OK 86, ¶39 (internal citations omitted).
 Zeier v. Zimmer, Inc., 2006 OK 98, ¶19, 152 P.3d 861.
 Id. The court also concluded that this affidavit of merit requirement, applicable only to medical negligence claims, constituted an impermissible special law.
 See Moses v. Hoebel, 1982 OK 26, ¶¶1-2, 10-11, 646 P.2d 601, 602 (“The judge's attempted use of the unsatisfied obligation adjudicated in the dismissed case to prevent Moses from pursuing his claim in the refiled case plainly contravenes both the Open-Court-of-Justice Clause of our own constitution as well as the federal and state minimum standards of due process. … The state's power cannot hence be invoked to exact from Moses a tribute in one case in order to pursue his claim in the refiled cause.”).
 See Head v. McCracken, 2004 OK 84, ¶14, 102 P.3d 670, 680.
 See, e.g., 21 O.S. §1109 (directing the appointment of counsel in deprived child or termination of parental rights cases if parent or guardian is indigent); 10 O.S. §7503-2.4 (directing appointment of counsel in adoption cases where parent or guardian is indigent); Oklahoma Rule of Professional Conduct 1.8(e) (allowing counsel to pay fees and costs for indigent clients).
 Legal Aid Services of Oklahoma helpfully provides a sample pauper’s affidavit form on its website, which may be used in district court. See https://bit.ly/3R5kuIX. Some tribunals provide their own forms for these affidavits. See, e.g., https://bit.ly/3R9fBi7 (Oklahoma Supreme Court); https://bit.ly/3RgHqEW (Workers’ Compensation Commission). Last accessed Sept. 6, 2023.
 28 O.S. §152(H).
 The fact that a petitioner is represented by counsel “does not in and of itself foreclose his right to proceed in forma pauperis.” Regan v. Gurich, 1995 OK 110, ¶2, 905 P.2d 796, 796. It is highly unlikely, however, that a party who is paying their counsel will be deemed to have “no means” and thus entitled to proceed under this statute.
 28 O.S. §152(H).
 See, e.g., Foust v. Pearman, 1992 OK 135, ¶¶1-13, 850 P.2d 1047, 1048-50; Smith v. Moore, 2002 OK 49, ¶¶5-8, 50 P.3d 215, 217-18.
 See 57 O.S. §§564-566.4.
 See, e.g., 57 O.S. §566.2 (prohibiting an incarcerated individual who “has, on three or more prior occasions, while incarcerated or detained in any facility, or while on probation or parole, brought an action or appeal in a court of this state or a court of the United States that has been dismissed on the grounds that the case was frivolous, or malicious, or failed to state a claim upon which relief could be granted, may not proceed in a matter arising out of a civil case, or upon an original action or on appeal without prepayment of all fees required by law, unless the prisoner is under immediate danger of serious physical injury”); Mehdipour v. State ex rel. Dep't of Corr., 2004 OK 19, ¶1, 14-16, 90 P.3d 546, 547 (upholding the constitutionality of such statutes under Article II, Section 6, and noting that “[w]hile fee waivers are required in criminal cases, in the civil context the United States Supreme Court has only required a waiver of fees in a narrow category of cases where the litigant has a fundamental interest at stake,” and thus in most cases, proceeding in forma pauperis is a privilege, not a right).
 Wall v. Marouk, 2013 OK 36, ¶24, 302 P.3d 775, 784–87.
 See Wall v. Marouk, 2013 OK 36, 302 P.3d 775 (striking down the second iteration as an impermissible special law as well as a violation of Article II, Section 6); John v. Saint Francis Hosp., 2017 OK 81, 405 P.3d 681 (holding that the third iteration, too, constituted an impermissible special law and was a “costly, meaningless and arbitrary barrier to court access”).
 Wall, 2013 OK 36, ¶23.
 John, 2017 OK 81, ¶18.
 See 22 O.S. 60.2.
 Id.; see also Alford v. Garzone, 1998 OK CIV APP 105, ¶¶14-15, 964 P.2d 944, 948.
 See 12 O.S. §1751 et seq.
 See 12 O.S. §3226(B)(1)(a).
Originally published in the Oklahoma Bar Journal – OBJ 95 Vol 8 (October 2023)
Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.