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Hamilton County: New law prevents having plaintiffs pay in domestic cases

By: Monica Mercer
(Contact)

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Judge Neil Thomas

Seeking court-ordered protection against domestic violence in Hamilton County carries a price tag — $220, to be exact — for a sheriff’s deputy to deliver the order to someone accused of hurting their spouse or partner.

But an amendment to a state law passed in May now makes some in the legal community wonder if courts will be able to collect any money to help litigate civil domestic cases.

The amendment — which Rep. Sherry Jones, D-Nashville, explained had to pass to comply with a federal mandate — makes it illegal to require people seeking orders of protection to pay for any of the costs.

Hamilton County Circuit Court issued 352 civil orders of protection in 2007, according to Court Clerk Paula Thompson, so the county could have collected a little more than $77,000 to help with its cost of doing business. Ms. Thompson said fees in civil domestic cases usually are not collected anyway because people seeking orders of protection tend to be declared indigent by judges.

Rep. Jones told House members that without the amendment, Tennessee would lose $5.5 million in federal funds for things such as victim services and other domestic-violence-related issues.

Local defense attorney Clay Whittaker said he believes the fallout from the law change is that the people with orders of protection against them could end up bearing the burden of court costs in all instances, even if the plaintiffs’ complaints eventually are found to have no merit.

“I think what we’ll be faced with, particularly in smaller counties, is: Can they continue to process these kinds of cases and do so without getting some kind of money out of it?” Mr. Whittaker said. “They can’t charge the person (filing the order of protection), so there’s only one other place to get the money from.”

Before the amendment was passed, judges could determine who was responsible for paying court costs, although state law already stipulated the defendant always had to pay if orders of protection were granted.

A civil domestic case is one of very few types of lawsuits filed in circuit court in which fees do not have to be paid until the case is resolved. Fees for most other civil lawsuits must be paid up front.

While Mr. Whittaker said he didn’t believe judges automatically would assess costs against defendants, he said the law certainly “is not a very fair position” in which to put judges.

In a recent case, Circuit Court Judge Neil Thomas dealt with the issue when a woman who filed for an order of protection did not show up on the scheduled court date. Judge Thomas dismissed the case, but there was still the question of who would pay.

Judge Thomas said he ultimately waived all court costs in the case, adding he is critical of any federal mandate “that allows anyone to file a case, not even show up, and then not have to pay a price for it.”

“I’m reluctant to criticize the (Tennessee) Legislature, because I don’t think they had a choice in the matter,” Judge Thomas said.

Rep. Jones, who sponsored the House bill, echoed the same sentiment. “We have to do this whether we want to or not” because of the federal mandate, she said.

Many programs would have been affected had Tennessee not changed its law because of the potential loss of $5.5 million in federal handouts, Rep. Jones said. Many courts across the state already were not collecting fees with regard to domestic lawsuits, she said.

But Ms. Thompson said any law against collecting a certain type of court fee is not a good course of action.

“It’s a no-win situation,” she said.

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