Court: Clark County judges exceed authority in pilot program

Wednesday, Jan. 5, 2005 | 9:34 a.m.

CARSON CITY -- The Nevada Supreme Court says that those involved in construction defect cases in Clark County should not be required to file their documents electronically and pay an extra fee.

And two of the justices said the extra fee of $10 per document was excessive, resulting in $4 million a year going to the private firm WizNet of Del Rey Beach, Fla., that established and operates the electronic system.

The court, in a divided opinion Monday, overturned the decision of District Judge Allan Earl who ruled that Capital Pacific Homes, Inc., and Coleman Homes Inc., must participate in the pilot program and pay the extra fee.

The two firms were sued in construction defect cases.

The Supreme Court issued a writ of prohibition stopping Earl from enforcing the electronic filing requirement. While the court praised the Clark County judges for looking for technology advances, it said they exceeded their authority in making the program mandatory.

It said it has not yet adopted formal rules for the establishment and management of an electronic court system. Justices Bob Rose, Nancy Becker and Michael Douglas signed the majority opinion.

Former Chief Justice Miriam Shearing, writing in a concurring and dissenting opinion, said the $10 fee assess "appears per se unreasonable." Shearing and Justice Bill Maupin said based on the number of cases filed in Las Vegas in the last fiscal year and assuming a minimum of five documents per case, the fees collected by the vendor would be over $4 million.

Shearing said the district judges should look at the fees charged to determine if they are reasonable. "Litigants may be required to pay the cost of e-filing but not to provide huge profits for a private vendor that is performing court functions."

Shearing said the district judges argue the use of private vendors provides cost savings to the parties in the suit. If that is so, there would be no reason to requirement payment to the private vendor. "Obviously some litigants do not agree that the mandated system offers advantages to them," she wrote.

Users of the system are also required to pay an upfront fee of $95, according to court records.

Justice Mark Gibbons dissented saying the law "expressly empowers the district court to determine how it will process electronic records." Under the law, he said the "district court can order parties to participate in electronic filing based upon a pilot program."

If there was a problem with the program, Gibbons said, the chief judge in Clark County could make changes.

Gibbons also rejected a suggestion made in a concurring and dissenting opinion by former Justice Deborah Agosti that the county experiment setting up its own electronic filing system rather than hire a private company.

Gibbons said that might require Clark County to spend hundreds of thousands of dollars and there could be a lengthy time delay in getting the system working.

In this case, Gibbons said the county chose a company that has had experience since 1995 and WizNet has "provided a cost-effective solution for complex cases with numerous parties."