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Found money

Lawyer Timothy Kelley fought for nearly 10 years to halt a $30 filing fee.
Mark Graham

Timothy Kelley's 10-year battle with Dallas County over court fees wasn't so much about the money the county overcharged the public -- it was only $30, after all -- but the principle.

In the end, that principle and that $30 could end up costing the county around $3 million, thanks to settlements reached in lawsuits Kelley filed to recover the fees. Kelley himself stands to make up to $1 million from the cases.

The hefty payday for Kelley and other lawyers involved in the lengthy litigation comes in part because the county fought every effort to halt the fees, for several years even ignoring a court order prohibiting them.

The battle began in 1990, when discount divorce lawyer H. Averil Sweitzer discovered that the courts were charging his clients sheriff's and court reporter's fees in addition to regular filing fees when their cases were filed. The $30 sheriff's fee was intended to cover any process serving or courtroom work by deputies. The court reporter's fee was $15.

Bill Long, the district clerk at the time, contended that the state's local government code permitted the fees. But Long's office charged the sheriff's fee up front -- before any services were rendered and regardless of whether the sheriff's office had performed any services -- which was illegal. The court reporter's fee wasn't even approved by the state Legislature until April 1995.

Sweitzer called Kelley, who agreed to sue the Dallas County District Clerk's Office. To sweeten the deal, Sweitzer told Kelley that a 19th-century statute provided for quadruple damages in the event that the district clerk's office illegally charged the public.

In 1992, state District Judge John Marshall ruled in favor of Sweitzer and divorce lawyer Walter Kowalski, who joined Sweitzer in the suit. Marshall awarded nearly $2.5 million in damages to their clients who had paid both fees. (The court reporter's fee eventually would be dropped from the litigation.) In 1994, however, the Texas 5th Court of Appeals threw out the award but left intact an injunction Marshall had issued that prohibited the county from collecting the fees.

While the appeals court found that the plaintiffs were not eligible for quadruple damages, it "essentially remained silent on the question of the illegal fees," Kelley says. He took the court's silence as an opportunity to try another case. In 1993, Kelley filed a similar suit on behalf of Dallas attorneys Randy Essenburg, John Mallios, and Leona Stone. Sweitzer and Kowalski's case would eventually be joined with Essenburg's.

Marshall again ruled in favor of the lawyers, awarding the plaintiffs a total of $428,871. Again the county appealed and won -- in October 1997.

"The reason that was appealed was because some bright soul had discovered a statute that they said told all the lawyers that they could not sue the county unless they first made demands on the commissioners court," Kelley says. Only if the commissioners court refused to settle would the county have to pay out damages.

But Kelley wasn't finished yet.

He appealed to the Texas Supreme Court, which in January sided with him and ordered Marshall to award damages.

And still Kelley wasn't finished.

Despite the injunction against the fees that Marshall had issued in 1992, the county continued to collect the sheriff's fee -- even after a ruling by Judge Bill Stephens in April 1996 that the county was in contempt of Marshall's original injunction.

Bill Long's office disregarded Marshall's injunction and Stephens' contempt order, which fined the District Clerk's Office $500 for each day it remained in contempt.

"They didn't care about a fine of $500 a day when they were making $3,000 a day in fees," Essenburg says. "The county was supposed to represent the people and the best interest of the people's money."

So, in 1998, Kelley filed yet another suit -- this one on behalf of attorneys Raymond Wayne Phillips and James Bauer against the county, the district clerk, the county clerk, and the county probate clerk. Their suit demanded that the county refund the sheriff's fee -- now called a bailiff's fee -- to anyone who filed a civil case between September 28, 1996, and July 27, 1998, the day the county stopped charging the fee.

Last August, Judge David Godbey ruled in favor of Phillips and his co-plaintiffs. As many as 80,000 people may be due refunds of the $30 fee plus interest -- about $44 -- says Assistant District Attorney John Long, who represented the county. The county estimates that only 20,000 people will actually file for the refunds. In the Phillips case, Kelley will receive one-third of the total amount of money that the county refunds -- but no more than $1 million in total fees from all the various lawsuits he filed.

In the meantime, the case that started all the litigation was under settlement negotiations between Kelley and John Long. An original agreement the pair reached was rejected by the commissioners court earlier this year, and the haggling continued until last month. In October, Marshall signed a final judgment after the commissioners approved a settlement. Essenburg and Mallios will receive about $167,000; roughly $67,000 of that will be set aside for refunds for their clients. Kelley will receive nearly $240,000 in legal fees. Settlements with Kowalski, as well as with the estates of Stone and Sweitzer, who died while the cases were pending, are still being negotiated and could total another $260,000, with the lion's share going to Kelley.

The contempt fines, which totaled $137,000, plus the attorneys' fees, the settlements, and the refunds, could add up to around $3 million -- all because the county collected a $30 fee.

In the Essenburg case, any money set aside for refunds that has not been returned to the public within a year will go toward purchasing computers for the courthouse.

Essenburg will receive $90,000, but after nearly 10 years of litigation, he says he's not sure it was worth the effort. He says he settled because the commissioners court appeared ready to fight the judgments indefinitely.

Essenburg says the county wasted time and money in trying to avoid giving the public its money back and in painting the lawyers as bad guys, when in reality the commissioners court had no regard for the law.

"They were the ones doing things illegally. To extend out the litigation for that length of time and disregard orders of contempt...that was surprising," Essenburg says.

John Long says the district clerk's office didn't flout the law, but that it was advised to disregard Marshall's injunction because the county believed it eventually would prevail. "It was probably not such a good idea for Bill Long to take that advice," John Long says.

Thus far Kelley and Dallas County have made a collaborative effort to get the money back to the public. John Long says that the county ran several ads in The Dallas Morning News and some Spanish-language newspapers. Kelley sent out a letter to 2,000 members of the Dallas Bar Association explaining the settlement and urging attorneys to make claims for their clients. All claims must be filed with the District Clerk's Office by November 24. So far, only 354 claims have been filed.

"The problem is that those people filed their divorces years ago, so finding them is practically impossible for lots of reasons," Kelley says. "It's only $30, and nobody wants to go through all of the bullshit of paying back $30." But nevertheless, Kelley says he's happy the public is getting the money back.

Kelley estimates he spent at least $250,000 in expenses while fighting the county. He also owes an Austin attorney a $150,000 fee for appealing the Essenburg case. So Kelley doesn't think $1 million is much to ask considering how long he's been working on getting the public's money back. "It's really not much, when you think about all of the hours and expenses fees I put into this," Kelley says. "About $100,000 a year."

Judge Marshall says the lawyers should be commended for the time and effort they put into the case. "These lawyers have really gone to bat for the private citizens," Marshall says.


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