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June 30, 1975

DONALD R. MANES, MARLENE MANES and LAUREN MANES and ERIC MANES, infants by their Father and natural Guardian DONALD R. MANES; LAWRENCE BORGER; MARTIN JORICH; PAULA SUSAN JORICH, an infant by her Father and natural Guardian MARTIN JORICH; LEE B. AURELLO; KEVIN M. WILLIS; JAMES L. WILLIAMS; ROSENA JOHNSON; ROBERT C. PURVIS; BETTY NICHELSON; THEODORE H. KOSSE; ELAINE GARBATOW; IRA GARBATOW; THOMAS DeSHAZOR, individually, jointly, in behalf of themselves and others similarly situated; and JOHN G. HALL, individually and as President of the Richmond County Bar Association; and BROOKLYN BAR ASSOCIATION, Plaintiffs,
HARRISON J. GOLDIN, Comptroller of the City of New York; NORMAN GOODMAN, County Clerk of the County of New York; ANTHONY N. DURSO, County Clerk of the County of Kings; LEO LEVY, County Clerk of the County of the Bronx; John J. DURANTE, County Clerk of the County of Queens; AUGUSTINE B. CASEY, County Clerk of the County of Richmond; JOSEPH GOLDSTEIN, County Clerk of Albany County; and NEAL BRANDOW, County Clerk of Greene County, Defendants and LOUIS J. LEFKOWITZ, Attorney General of the State of New York, Intervenor-Defendant

The opinion of the court was delivered by: JUDD



 This action for an injunction against the enforcement of 1972 New York statutes which raised court filing fees and charges in New York City was heard on the merits by a three-judge court. Motions to dismiss or for judgment on the pleadings were argued and considered at the same time, as was also a request for a class action determination.


 The most serious attack in the complaint is on filing fees for the New York State Supreme Court in the five counties of New York City. These fees amount to $110 for a jury case in the Supreme Court, consisting of a $25 fee to obtain an index number when the first paper is filed, a $50 calendar fee when the notice of trial is filed, and a $35 jury fee if a demand is made for a six-man jury. There is no jury fee at all in some counties. Fees for similar proceedings in other counties range from $4 in rural upstate counties to $42.50 in Nassau County.

 Though the complaint primarily challenges fees necessary to obtain a jury trial of a civil action in the Supreme Court, it also contests disparity in fees for such things as filing a certificate as a notary public, filing a notice of pendency of action, or a notice of attachment against real estate, for certification, exemplification and copying of papers, searching court records, production of records pursuant to a subpoena duces tecum, or issuing certificates of various kinds, and for other services performed by the clerks of court.

 Facts concerning the impact of the fees, the use of the funds, and the differences between New York City and other parts of the state were developed by extensive interrogatories and depositions. Plaintiffs showed that there were substantially more blacks and other minority group members in New York City than in counties outside New York City, and that there were substantially more poor people in New York City than in the counties outside New York City. However, there was no particularized evidence of the impact of the fees on these persons.

 There was no substantial contested issue of fact at the hearing before the three-judge court.

 The individual plaintiffs here are primarily concerned as plaintiffs in tort negligence actions pending in the Supreme Court, Queens County. None has been prevented from prosecuting his or her action by reason of the filing fees of which they complain. In some cases, however, counsel advanced the filing fees because their clients said they were unable to afford the funds.

 Plaintiffs assert that the procedures for obtaining leave to prosecute actions in forma pauperis are so cumbersome for counsel that they sometimes deter representation, and thus fail to aid poor litigants. On the other hand, affidavits from attorneys in organizations which prosecute large numbers of matrimonial actions in the Supreme Court show that they have obtained leave to proceed in forma pauperis in 90 percent of the cases filed, and that they can obtain leave on mimeographed forms.

 The bills which increased fees and gave rise to this litigation were passed on Messages of Necessity from the Governor, during the closing days of the 1972 Legislative Session. The messages dispensed with the requirement that bills lie on the desks of the legislators for three days before passage. Although there were no requests for the legislation by the City Council of New York City, the bills were requested by the Mayor. His legislative representative stated, for instance, in connection with the bill to increase fees and costs in the Supreme Court,

"While the fees would not cover the full cost of civil adjudication, it is only equitable to require those who use the courts to pay their fair share. The proposed fee schedules attempt to restore this principle by reflecting the combination of inflation and increased personnel costs that have made it more expensive for the city to provide these necessary services.
Accordingly, the Mayor urges upon the legislature the earliest possible favorable consideration of this proposal."

 The President of the Richmond County Bar Association, plaintiff Hall, asserts that Richmond County is essentially a suburban community, that almost 90 percent of its residences consist of one and two family dwellings, and that it should be treated differently from the rest of New York City. He asserts that the demographic, social, and economic characteristics of Richmond County are not substantially different from those of other suburban counties in the state, and that its population density is within 3 percent of the figure of Nassau County. Fees of jurors in Richmond County are the same as in the rest of the City. Supreme Court Justices in Richmond County receive the same salary supplements from the City as Justices from the other four counties.

 The bills under attack originally changed court fees statewide, with different rates in New York City than in other counties, but the fees in "upstate" counties were immediately restored to their old levels. Review of the statute required a consideration of the statewide fee policy. Therefore, at the outset of the litigation Judge Weinstein, to whom the case was originally assigned, directed that the county clerks of three representative upstate counties be added as parties defendant. The New York Attorney General later requested Judge Weinstein to disqualify himself, and he did so. The representative counties which were chosen were Albany, an upstate urban county, Greene, a rural county, and Nassau, a suburban county adjoining New York City. Index number fees are $5.00 in Nassau, and $3.00 in Albany and Greene. Calendar fees are $5.00 in Albany, $1.00 in Greene, and $25.00 in Nassau. Jury demand fee is $12.50 in Nassau, with no fee charged in Albany or Greene.

 The number of civil cases filed in the Supreme Court in New York City has apparently not been diminished by the increased fees; for the year 1970-71, before any fee increase, the intake was 86,026 cases, and for 1972-73, the year after the fee increases, it was 95,762 cases.

 All the money received as filing fees is deposited in the City's general fund, from which all City expenses are paid, whether they be court costs, garbage collection, park maintenance, or any other items. The total fees collected from litigants represent only a small fraction of the City's costs of operating courts. Specifically, with respect to the Supreme Court in New York City, the City's expenditures in fiscal 1972 were $38,010,339 and its revenues from fees were $1,063,121. A major part of the Supreme Court costs is allocable to criminal parts, but the plaintiffs were unable to show that the City made a profit on the operation of the civil parts of the Supreme Court in any county.

 Jurors in New York City receive $12.00 per day, a higher figure than is paid in any other county. The jury fee of $35.00 in New York City is less than half the cost to the City of supplying a six-man jury for one day.

 Constitution and Statutes

 Article VI, Section 1(a) of the New York Constitution provides:

"There shall be a unified court system for the state. The state-wide courts shall consist of the court of appeals, the supreme court including the appellate divisions thereof, the court of claims, the county court, the surrogate's court, and the family court, as hereinafter provided. The legislature shall establish in and for the city of New York, as part of the unified court system for the state, a single, city-wide court of civil jurisdiction and a single, city-wide court of criminal jurisdiction . . . ."

 With respect to county clerks, the Constitution, Article VI, Section 6(e), specifies:

"The clerks of the several counties shall be clerks of the supreme court with such powers and duties as shall be prescribed by law."

 The challenged statutes are Sections 8018, 8020, and 8021, as amended, of the Civil Practice Law and Rules. Although due to some drafting errors during the 1972 legislative amendments one bill was captioned as intended to " reduce rates of various fees and costs in counties outside N Y City" and the other as intended to increase such fees in the city, in fact the result was to increase New York City fees virtually across the ...

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