May 8, 2015
On-Line Information Services, Inc., and Chief Justice Roy S. Moore
Amended July 9, 2015.
from Montgomery Circuit Court. (CV-12-901574).
Appellant: Joel E. Dillard, Baxley, Dillard, McKnight &
James, Birmingham; Charles E. Robinson, Jr., The Robinson Law
Firm, Ashville; M. Clay Ragsdale, Ragsdale, LLC, Birmingham.
Chief Justice Roy S. Moore, Appellee: Luther Strange, Atty.
Gen., John C. Neiman, Jr., Deputy Atty. Gen., William G.
Parker, Jr., Laura E. Howell, Asst. Attys. Gen.
On-Line Information Services, Inc., Appellees: Matthew H.
Lembke, R. Aaron Chastain, Bradley Arant Boult Cummings LLP,
Justice. Parker, Main, Wise, and Bryan, JJ., concur. Moore,
C.J., recuses himself.
Geeslin filed this action challenging a " convenience
fee" and " token fee" charged in connection
with his on-line electronic filing of a civil action -- fees
assessed in addition to the statutorily defined filing fee
that were mandated by a September 6, 2012, administrative
order issued by then Chief Justice Charles Malone. That order
purported to make mandatory the on-line, or electronic,
filing of all documents filed in civil actions in Alabama
circuit courts and district courts by parties represented by
an attorney. Alabama's on-line document-filing system,
known as " AlaFile," requires credit-card payment
of filing fees and charges users a " convenience
fee" in addition to the filing fees. Geeslin filed this
putative class action in the Montgomery
Circuit Court, naming as defendants Chief Justice Malone in
his official capacity and On-Line Information Services, Inc.
(" On-Line" ), the company that manages and
maintains the electronic-filing system for the Alabama
Administrative Office of Courts (" AOC" ). Geeslin
alleges that Chief Justice Malone's order was
unconstitutional and that the fees collected over and above
the statutorily defined filing fee amounted to an illegal
tax. Geeslin sought a judgment declaring the convenience fee
and another " token fee" unconstitutional and a
refund of the fees paid by him and the other putative class
members. The Chief Justice and On-Line moved to dismiss the
complaint. The trial court granted the motion to dismiss, and
Geeslin appeals. We affirm in part, reverse in part, and
render a judgment for Geeslin on his declaratory-judgment
the issuance of Chief Justice Malone's administrative
order of September 6, 2012, electronic filing was an optional
method of filing in civil cases in Alabama circuit and
district courts. Electronic filing in legal actions in
Alabama is of relatively recent origin. On July 29, 2005,
this Court issued an administrative order authorizing a pilot
program for electronic filing for civil matters in certain
Alabama counties. The order authorized the Administrative
Director of Courts (" the ADC" ) to promulgate
procedural rules for electronic filing and to issue any
administrative directives necessary to implement the pilot
program. Under the administrative regulations developed by
the ADC, attorneys who participated in voluntary electronic
filing could do so only by paying court fees associated with
electronically filed documents by credit card, for which they
were charged an additional 4% " convenience fee."
Because the electronic filing requiring this payment was
voluntary, however, so too, in effect, was the conveniencece
connection with this Court's authorization of the pilot
program, AOC began working with On-Line, a
software-development company, to develop a system for
electronic filing. On-Line and AOC eventually developed what
is now known as AlaFile and also developed related
document-storage and document-management systems. At all
times relevant to this appeal, On-Line has provided software
support and management and development services to AOC under
the terms of a licensing and services agreement. In the
agreement, On-Line is designated as a " limited agent of
the AOC" for the purpose of collecting all charges and
filing fees paid through use of AlaFile. On-Line collects all
statutory filing fees and convenience fees as a limited agent
of AOC and remits the statutory filing fees to AOC. The
agreement entitles On-Line to retain the convenience fees.
pilot program was successful and eventually was expanded
statewide so that all circuit and district courts could
participate in electronic filing through AlaFile. Effective
October 24, 2008, this Court amended Rule 5 of the Alabama
Rules of Civil Procedure to recognize electronic filing as an
optional means of filing and service in every county in
Alabama. See Rule 5(b) and (e), Ala. R. Civ. P. Indeed, the
Committee Comments to Amendments to Rule 5 Effective October
24, 2008, which were also approved by this Court, made clear
that electronic filing was an " optional" means of
filing and service. (" The additions to Rule 5(b) and
Rule 5(e) recognize that electronic filing is now an optional
means of filing and service in every county in Alabama."
(Emphasis added.)) The administrative regulations concerning
electronic filing developed by AOC continued to provide that
users were to pay a 4% convenience fee above the filing fees
and court costs paid. Furthermore, users of AlaFile can elect
to store their payment information for future use. Users who
elected to store such information were charged a $0.05 "
token fee." This charge, however, is purely voluntary.
See note 2, supra, and accompanying text.
September 6, 2012, Chief Justice Malone issued his
administrative order purporting to direct that, effective
October 1, 2012, all documents filed in civil actions in
Alabama circuit courts or district courts by a party
represented by an attorney must be filed electronically. The
order reads as follows:
" IN THE SUPREME COURT OF ALABAMA " ADMINISTRATIVE
" WHEREAS, pursuant to Article VI, Section 149, of the
Constitution of Alabama, the Chief Justice of the Supreme
Court of Alabama is the administrative head of the judicial
" WHEREAS, Section 12-2-30(b)(7), Code of Alabama 1975,
authorizes and empowers the Chief Justice, '[t]o take
affirmative and appropriate action to correct or alleviate
any condition or situation adversely affecting the
administration of justice within the state'; and
" WHEREAS, Section 12-2-30(b)(8), Code of Alabama 1975,
authorizes and empowers the Chief Justice '[t]o take any
such other, further or additional action as may be necessary
for the orderly administration of justice within the state,
whether or not enumerated [in the law],'
" IT IS THEREFORE ORDERED AND DIRECTED that effective
October 1, 2012, all documents filed by any party represented
by an attorney shall be filed electronically through the
AlaFile application in all civil divisions of the circuit and
district courts including: Circuit Civil (CV); District Civil
(DV); Small Claims (SM); Domestic Relations (DR); and, Child
Support (CS). Documents may still be filed in open court at
the trial judge's discretion. If documents are filed in
open court, the attorney filing the document is responsible
for filing the document electronically through AlaFile on the
same day. Additional details and instructions may be found in
the 'Administrative Policies and Procedures for
Electronic Filing in the
Civil Divisions of the Alabama Unified Judicial System.'
" Most documents that are filed in a case can be filed
electronically. Document types that are not available will be
listed on the http://efile.alacourt.gov/ website and should
be filed conventionally. As additional document types become
available for electronic filing, the Administrative Director
of Courts (ADC) may expand the scope of the mandate for
electronic filing by directive.
" A hardship exception allowing an attorney to file in
paper may be obtained for an attorney who cannot file
electronically due to exceptional circumstances. Requests for
an exception should be submitted to the ADC for consideration
and approval or disapproval by the ADC.
" Effective October 1, 2012, all orders rendered by the
judge assigned to a case in one of the civil divisions
including: Circuit Civil (CV); District Civil (DV); Small
Claims (SM); Domestic Relations (DR); and Child Support (CS)
shall be rendered electronically by the judge through the
" A hardship exception allowing a judge to file an order
in paper may be obtained for a judge who cannot file
electronically due to exceptional circumstances. Requests for
an exception should be submitted to the Administrative
Director of Courts for consideration and approval or
disapproval jointly by the Administrative Director of Courts
and the Chief Justice.
" This administrative order does not prevent the
Presiding Judge of a Judicial Circuit from entering an
administrative order requiring electronic filing of documents
by attorneys or electronic filing of orders by judges in
other divisions of the circuit or district courts in that
" Done this 6th day of September 2012.
" /s/ Charles R. Malone
" CHARLES R. MALONE
" CHIEF JUSTICE"
the fact that the mandatory nature of the order was contrary
to this Court's previous recognition that the electronic
filing was " optional," the order was issued solely
on the basis of Chief Justice Malone's authority as Chief
Justice, without the concurring vote of any other Justice.
alleges that after the effective date of Chief Justice
Malone's order, he filed, through his attorney, a
domestic-relations action in the St. Clair Circuit Court.
Pursuant to the policy mandated by Chief Justice Malone's
administrative order, Geeslin's action was filed
electronically, and Geeslin paid a $194.00 filing fee, plus a
" convenience fee" and a " token fee."
November 21, 2012, Geeslin filed this action against On-Line
and Chief Justice Malone in his official capacity as Chief
Justice. He sought, among other things, an injunction
permanently restraining the Chief Justice and On-Line from
continuing to collect the convenience fee and the token fee.
one of Geeslin's complaint sought a judgment under
Alabama's declaratory-judgment act, § 6-6-220 et
seq., Ala. Code 1975, declaring that the " convenience
fee" and " token fee" paid by Geeslin
constitute an illegal and unlawful taking. Geeslin
subsequently amended count one to assert that the Chief
Justice's order was without effect, because, he argued,
the Chief Justice had no power to issue the administrative
order unilaterally, i.e., without the
concurring votes of the majority of the Supreme Court.
Geeslin also requested that the case be certified as a class
action and that he be named the representative of a class of
similarly situated litigants who have been forced to pay the
convenience and token fees. Geeslin demanded that all such
payments be refunded to him and the other members of the
count two of his complaint, Geeslin alleged that the
convenience fee and the token fee were collected in violation
of his due-process rights as guaranteed by the Fourteenth
Amendment to the United States Constitution, and he asserted
a claim against Chief Justice Malone and On-Line under 42
U.S.C. § 1983. Geeslin requested that the court enter an
order requiring the Chief Justice and On-Line to "
disgorge themselves of, restore, and refund" the fees
Geeslin and the other members of the putative class had paid.
Chief Justice and On-Line jointly moved to dismiss
Geeslin's complaint. As part of their motion, the Chief
Justice and On-Line argued that Geeslin's State-law claim
for money damages against the Chief Justice in his official
capacity was barred by the doctrine of sovereign immunity.
Likewise, Geeslin's § 1983 claim was barred, they
argued, because the State of Alabama and its officials acting
in their official capacities are not considered "
persons" for the purposes of an action seeking damages
under § 1983. On-Line argued that the State-law claim
for money damages against On-Line, a limited State agent for
the purpose of collecting the complained-of fees, was barred
by the doctrine of Stateagent immunity and that that part of
the § 1983 claim seeking money damages against On-Line
asserted in count two was barred by the doctrine of qualified
immunity. The Chief Justice and On-line further argued that
Geeslin's claims for money damages were also barred by
the voluntary-payment doctrine. The Chief Justice and On-Line
further argued that, to the extent Geeslin sought injunctive
relief, he had failed to allege or to plead the elements
necessary for the court to issue an injunction under Rule 65,
Ala. R. Civ. P., because, they argued, Geeslin had an
adequate remedy at law -- he could have challenged or sought
exemption from the fees in his underlying civil action. The
Chief Justice and On-Line also correctly argued that
Geeslin's request for declaratory relief concerning the
propriety of the administrative order mandating electronic
filing failed to state a claim against On-Line, which had no
ability to create, amend, or repeal the administrative
regulation in question. The Chief Justice and On-Line argued
that the § 1983 claim was due to be dismissed because
the collection of the convenience fee and the token fee did
not deprive Geeslin of his due-process rights under the
Federal Constitution. Finally, the Chief Justice argued that
Geeslin's claims were due to be dismissed because, as a
matter of law, the Chief Justice, as the administrative head
of Alabama's unified judicial system, had the power to
issue the September 6, 2012, order, and that the convenience
fee and token fee were not illegal or unconstitutional taxes,
but were " user fees" authorized by State law. Each
of the above arguments was briefed by the Chief Justice and
On-Line and was argued before the trial court.
motion to dismiss was argued before the trial court on
February 7, 2013. That same day the trial court entered an
order granting the Chief Justice and On-Line's motion and
dismissing Geeslin's complaint.
appeal, Geeslin argues that the trial court erred in
dismissing the complaint because: (1) the Chief Justice,
Geeslin argues, acting alone and without the concurring votes
of a majority of the Supreme
Court, lacked the authority to issue the September 6, 2012,
administrative order; and (2) the convenience fee and token
fee paid by users of AlaFile, he argues, constitute illegal
and unconstitutional taxes. He makes these arguments,
however, only in the context of his claim for a declaratory
judgment, which involves only the Chief Justice. " In
order to secure a reversal, 'the appellant has an
affirmative duty of showing error upon the record.'"
Alabama Dep't of Transp. v. Reid, 74 So.3d 465,
469 (quoting Tucker v. Nichols, 431 So.2d 1263, 1264
(Ala. 1983)). We therefore limit our review of the trial
court's judgment to the issue of the viability of
Geeslin's declaratory-judgment claim.
declaratory-judgment claim seeks a declaration that Chief
Justice Malone's September 6, 2012, order was "
illegal and unconstitutional ... because it was not concurred
in by at least four additional Justices of the Supreme Court
of Alabama." Geeslin contends that, because the order
mandated the electronic filing in all civil actions in which
a party was represented by counsel, the associated fees
charged in addition to the filing fee were a " tax
levied by judicial fiat."
response, the Chief Justice contends that Art. VI, §
149, Alabama Const. 1901, together with §
12-2-30(b)(7)-(8), Ala. Code 1975, give the Chief Justice
broad administrative authority to issue the types of orders
made the basis of this appeal. Furthermore, he argues that
the " convenience fee" is not a " tax"
and is expressly authorized by § 41-1-60, Ala. Code
1975, and Rule 41, Ala. R. Jud. Admin.
first to the Chief Justice's power to issue to the
September 6, 2012, order without the concurrence of a
majority of the Supreme Court. Section 149 establishes that
" [t]he chief justice of the supreme court shall be the
administrative head of the judicial system."
The Alabama Code further defines the administrative authority
of the Chief Justice. Section 12-2-30(b), Ala. Code 1975,
provides that, among other things, " the Chief Justice
is authorized and empowered" :
" (7) To take affirmative and appropriate action to
correct or alleviate any condition or situation adversely
affecting the administration of justice within the state.
" (8) To take any such other, further or additional
action as may be necessary for the orderly administration of
justice within the state, whether or not enumerated in this
section or elsewhere."
the above provisions, the Chief Justice's broad powers to
effectuate his or her role as administrative head of the
court system are not unlimited. Although the Alabama
Constitution provides that the Chief Justice is the
administrative head of the judicial system, the Constitution
vests the Supreme Court with the power to promulgate rules
governing the administration of all courts. Section 150, Ala.
Const. 1901, provides: " The supreme court shall make
and promulgate rules governing the administration of all
courts and rules governing practice and procedure in all
courts ...." Furthermore, the legislature, in §
12-2-19(a), Ala. Code 1975, expressly recognized that "
the Supreme Court now has the initial primary duty to make
and promulgate rules governing
practice and procedure in all courts, as well as rules of
administration for all courts ...."
Ex parte State ex rel. James, 711 So.2d 952 (Ala.
1998), a three-Justice plurality discussed the Chief
Justice's authority to act unilaterally. In that case,
which concerned whether the Chief Justice had the power to
order a circuit judge to remove a Ten Commandments display
from his courtroom, the main opinion reasoned, in part, as
" Authority to issue such 'order as may be necessary
[for] general supervision and control of courts of inferior
jurisdiction,' is vested by Amendment 328, 6.02 [now
§ 140, Ala. Const. 1901 (Off. Recomp.)], in the Supreme
Court. Similarly, it is the Supreme Court that is charged by
Amendment 328, 6.08 [now § 147, Ala. const. 1901 (Off.
Recomp.)], with 'adopt[ing] rules of conduct and canons
of ethics ... for the judges of all courts of this
State.' Again, it is the Supreme Court that is charged by
Amendment 328, 6.11 [now § 150, Ala. Const. 1901 (Off.
Recomp.)], with the duty to 'make and promulgate rules
governing the administration of all courts and rules
governing practice and procedure in all courts.'
" The significance of the term 'supreme court'
in 6.02, 6.08, and 6.11 is illustrated by Ala. R. App. P.
16(b), which provides:
" 'The concurrence of five justices in the
determination of any cause shall be necessary ..., except
when, by reason of disqualification the number of justices
... is reduced, in which event the concurrence of a majority
of the justices sitting shall suffice; but, in no event, may
a cause be determined unless at least four justices sitting
shall concur therein.'
" (Emphasis added.) Indeed, as a 'hornbook'
principle of practice and procedure, no appellate
pronouncement becomes binding on inferior courts unless it
has the concurrence of a majority of the Judges or Justices
qualified to decide the cause. Simply stated, action by the
Chief Justice is not synonymous with action by the
711 So.2d at 963-64.
method by which filing and service must be accomplished is
inherently a rule of practice, procedure, and administration,
see Rule 5, Ala. R. Civ. P., the promulgation of which the
Alabama Constitution vests solely in the Supreme Court.
§ 150, Ala. Const. 1901. Consistent with that
understanding, a majority of this Court concurred to
authorize the use of electronic-document filing in the courts
of this State and authorized the ADC to implement and
administer the electronic-filing system. This Court, however,
has never authorized mandatory electronic filing. To the
contrary, in adopting the Committee Comments to the
Amendments to Rule 5 of the Alabama Rules of Civil Procedure
Effective October 24, 2008, this Court expressly recognized
electronic filing as an " optional" means of filing
and service. Chief Justice Malone's September 6, 2012,
administrative order requiring mandatory electronic filing by
all parties represented by an attorney in a civil action had
the effect of modifying the existing rules of filing and
service established by this Court. Accordingly, we hold that,
in issuing the September 6, 2012, administrative order, the
Chief Justice exceeded his administrative authority. That
order shall no longer be of any force or effect.
on the foregoing, we pretermit discussion of Geeslin's
additional argument that the convenience fee and the token
fee amount to unconstitutional " taxes."
affirm the judgment of dismissal as it relates to all claims
against On-Line, to
all claims seeking monetary relief and injunctive relief, and
to the action asserted against the Chief Justice under §
1983. As to the declaratory-judgment claim against the Chief
Justice, we reverse the trial court's judgment of
dismissal and render a judgment in favor of Geeslin.
IN PART; REVERSED IN PART; AND JUDGMENT RENDERED.
Main, Wise, and Bryan, JJ., concur.
C.J., recuses himself.
Chief Justice Roy Moore, upon assuming the
office of Chief Justice, was automatically substituted for
Chief Justice Malone. See Rule 43, Ala. R. App. P.
Section 41-1-60(a), Ala. Code 1975,
provides that " any officer or unit of state government
required or authorized to receive or collect any payments
[for] state government may accept a credit card payment of
the amount that is due." Section 41-1-60 further
" (e) An officer or board or other body
authorizing acceptance of credit card payments may impose a
surcharge or convenience fee upon the person making a
payment by credit card to wholly or partially offset, but
not to exceed[,] the amount of any discount or
administrative fees charged to state government. The
surcharge or convenience fee shall be applied only when
allowed by the operating rules and regulations of the
credit card involved. When a party elects to make a payment
to state government by credit card and a surcharge or
convenience fee is imposed, the payment of the surcharge or
convenience fee shall be deemed voluntary by the party and
shall not be refundable."
(Emphasis added.) Rule 41(A), Ala. R. Jud. Admin.,
permits payment of court fees by credit card and provides
that " [t]he process for accepting payments by credit
card must comply with § 41-1-60." Rule 41(B)
provides that " [c]onvenience fees and other
administrative fees levied for the privilege of paying
assessments, fees, costs, fines, or forfeitures by credit
card shall be taxed as costs when costs are taxed by the
court." (Emphasis added.)
Geeslin's complaint alleges that the
convenience fee of 4% was $13.84 and that the additional
token fee was $0.05. We note that 4% of $194.00 is
Section 149 provides:
" The chief justice of the supreme court shall
be the administrative head of the judicial system. He shall
appoint an administrative director of courts and other
needed personnel to assist him with his administrative
tasks. The chief justice may assign appellate justices and
judges to any appellate court for temporary service and
trial judges, supernumerary justices and judges, and
retired trial judges and retired appellate judges for
temporary service in any court. ..."