eFiling for free - well, maybe

A move by the IRS to broaden taxpayer participation in e-filing by providing free tax preparation software (to those who qualify) has me thinking about the status of electronic filing in the courts. Through the IRS Free File Program, the federal agency has actively sought partnerships with 17 software companies who have agreed to provide software for free.

Through a public-private partnership between the IRS and the tax software industry (i.e., Free File Alliance, LLC), taxpayers will be able to access free, online tax preparation and electronic filing services through irs.gov. Eligible taxpayers will be able to prepare and file their federal income tax returns using online software provided by the Free File Alliance members - not the IRS.

However, to access the free software, taxpayers must meet certain eligibility requirements. According to the FAQs: "Each participating software company has set its own eligibility requirements. Generally, those requirements will be based on: Age; Adjusted Gross Income (AGI); Eligibility to file Form 1040EZ; Eligibility to claim the Earned Income Credit; State residency; and Active duty military status (if applicable)."

I wish we could vigorously pursue this model for e-filing in the courts, but there may be one slight problem: the constitutional right of open access to the courts. For example, Article III, Section 17 of the West Virginia Constitution provides: "The courts of the State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay." In my view, this provision would prevent a court from imposing mandatory e-filing, unless a mechanism were in place to allow all potential filers to participate. In other words, mirror the paper requirement that if you cannot pay the filing fee, you can ask the court for leave to proceed in forma pauperis. Of course, the IRS hasn't imposed mandatory e-filing, but it has set up barriers to participation that may not be appropriate in the court context.

That is, unless you are the DC Superior Court, which in 2001 established by administrative order a mandatory e-filing requirement in certain civil cases. The order mandates that parties "must become participants" in a single vendor system, which charges a per transaction plus a per-page fee, and additional fees for official service, all of which are in addition to any filing fee required by the court. I question the wisdom of mandatory e-filing, especially with a single vendor, unless the court can underwrite the cost. I may have missed it, but I don't see any provision in the order that permits parties to apply for a fee waiver.

I have spoken to many vendors over the past two years about the electronic filing market in the courts. The prevailing business model had been to offer the requisite middleware to courts for free, and produce revenue by charging filers transaction fees. I have some experience with this approach, having signed an agreement with a vendor about 18 months ago to implement voluntary electronic filing of workers' compensation appeals in the court where I serve as Clerk. I spent hours on the technical requirements, mapping our business rules carefully so that the vendor's middleware could be properly configured. What happened? Nothing. The vendor went south. After all that work on the specs, I simply never heard from them again. And now I'm wondering whether any small firm can make a buck in this market.

Meanwhile, xml standards work continues for court filing, contracts, integrated justice, lawful intercept (this is a new one on me, and worth exploring further), legislation, online dispute resolution and transcripts. And other courts, like the US District Court, District of New Mexico, have developed home-grown open xml interfaces for electronic court filing. (Aside: Seems like some people will markup anything: there's MRML - Mind Reading Markup Language, Jigsaw XML format, and Human Markup.) Amid this swirl of markup, standards development, and push toward efficiencies in eGovernment, it's difficult for a court manager with limited funds to push forward. Do I:

• Keep waiting for the standards to mature
• Put aside my reservations about going with a single-vendor system and pursue another pilot project
• Dive in (with a nod to Mark Pilgrim) and try to build a home-grown open system

The bottom line is that I'm stumped, but nevertheless want to move forward, but not at the expense of open access to the courts.

  11:55:27 AM  [Permanent Link]