BILL NUMBER:  S5651

 TITLE OF BILL :
An act to amend the civil practice law and rules, in relation to
certain fees payable to the county clerk

 PURPOSE :
To exempt a fiduciary, court evaluator, guardian ad litem,
court-appointed attorney or a court examiner from a $45.00 filing fee
for civil motions in any guardianship matter under article eighty-one
of the mental hygiene law.

 SUMMARY OF PROVISIONS :
Adds a new Subsection 2 to Subdivision (a) of Section 8020 of the
Civil Practice Law and Rules (CPLR), as amended by Section 25 of Part
J of Chapter 62 of the Laws of 2003, to exempt principals involved in
guardianship cases from the $45.00 filing fee for civil motions.

 JUSTIFICATION :
In 2003, as part of the State Budget Bill S.1406-B/A.2106-B, New York
State implemented a $45 fee for filing civil motions. Only motions
seeking leave to proceed as an indigent person were exempted from the
mandate. The fee was one of the measures established to provide
additional revenue to support hourly rate increases for assigned
counsel appointed under Article 18-B of the County Law, the Court
Facilities Incentive Aid Fund, as well as to provide fiscal relief to
              

the "Big Six" cities and the General Fund. While the revenue-raising
objective of motion fees is clearly justifiable, a fair case can be
made that such fees should not apply to motions filed by those
appointed by the court in guardianship cases under New York State
Mental Hygiene Law Article 81.

In the memorandum in support of Budget Bill S.1406-B/A.2106-B,
ultimately codified as Section 25 of Part J of Chapter 62 of the Laws
of 2003, one of the arguments for the establishment of a motion fee is
"those who consume more of the judicial system's resources should pay
accordingly."  However, that rationale appears inapplicable to
guardianship cases under Article 81 of the New York State Mental
Hygiene Law. Since New York State has an interest in ensuring that its
most vulnerable citizens' needs are met, a party appointed as a
fiduciary in a guardianship matter is performing a valuable service,
not just to the incapacitated person or subject of the guardianship
proceeding, but also to the State.  There is a strong case that the
requirement of a fee for a motion by a guardian, court-appointed
attorney serves as a disincentive to accept such appointments and to
assist those most in need, and that such fees penalize incapacitated
persons, those whom Article 81 was enacted to protect.

In  MATTER OF RICHTER , NYLJ, Nov. 14, 2003, at 19, col 1 (Supreme
Court, Queens County), Justice Charles J. Thomas reasoned that "the
inevitable result of requiring fees from a guardian, guardian ad
litem, court evaluators or other individuals performing similar
functions, would be the wholesale refusal.. .to accept such
appointments, causing the entire guardianship part to grind to a
frightening halt. This cannot be allowed to happen." In that decision,
Justice Thomas ruled that"...all motions or cross motions made by a
Guardian, Guardian ad Litem, court appointed attorney, or court
evaluator must be exempt from the payment of fees" and that "the Clerk
of Queens County is directed to accept for filing any such motions,
cross motions or stipulations of settlement, without the payment of
any fee imposed by Chapter 62 of the Laws of 2003."

However, a subsequent case by another Queens County Supreme Court
Justice, Janice A. Taylor, overruled  RICHTER .ct.   IN MATTER OF
FICALORA , 2003 NY Slip Op 23873 (December 1, 2003, Supreme Court,
Queens County), Justice Taylor ruled that"...carving a substantive and
categorical exclusion out of the statute, no matter what the practical
or policy motivations behind it, is simply  ULTRA VIRES , beyond this
Court's allocated role in the distribution of lawmaking authority, and
is...the functional equivalent of lawmaking." In that case, an
attorney appointed as Special Guardian solely to apply for Medicaid
for an incapacitated person sought to be discharged. In reliance upon
the  RICHTER  decision, she filed a motion seeking discharge without
payment of the $45 motion fee. She was ultimately required to pay, as
the Court found that "the acceptance for filing of motions in
guardianship proceedings, such as that at bar, without the payment of
a requisite fee contravenes the express language of the statute..."

Not only was the waiver of fees by the Court in Article 81
guardianship cases deemed by  FICALORA  to be beyond the judicial
branch's scope of authority, the decision went on to say that "if an
exception for court-appointed fiduciaries in guardianship proceedings
was intended, or is desired, by the legislature, then this Court calls
upon the legislature to act to amend CPLR §8020 (a) to provide for
such exemptions." Therefore, an amendment to the Civil Practice Law
and Rules (CPLR) §8020 (a), the section of the statute incorporating
the motion fee requirement, is proposed in this legislation. The
instant bill expressly exempts motions by the fiduciary, court
evaluator, guardian ad litem, court-appointed attorney or by the court
examiner in any guardianship matter under Mental Hygiene Law (MHL),
Article 81 proceeding.

A case can be made that requiring court appointees in MHL Article 81
matters, especially guardians and court examiners, to pay a fee for
each motion imposes a financial penalty that burdens the very same
people the court proceeding seeks to protect--incapacitated persons,
e.g., elderly, disabled, and infants. After the appointing process,
the incapacitated person becomes a ward of the Court for his or her
lifetime. There are myriad motions that must be regularly made,
including those requesting increase and/or decrease of guardianship
powers, purchase or sale of real property, the appointment of a
successor guardian, approval of a budget, purchase of a van for a
handicapped person, payment of an extraordinary bill, transfer of a
person to a nursing home, increase or decrease of a bond, appointment
of counsel, approval of medical treatment, and settlement of final
accounting. Many of the issues and decisions that most of us make in
the course of our daily living require filing motions for Court
involvement in the case of incapacitated persons.

In addition, many court appointees must expend time and effort filing
the motion in person. The cost for such time and effort is often
passed to the incapacitated person's estate, further affecting the
financial impact to these most vulnerable individuals.

The memorandum in support of the legislation implementing motion fees
(Budget Bill S.1406-B/A.21O6-B of 2003), points out that a number of
other states impose such fees. However, at least one state, Minnesota,
specifically excludes guardianship and child support cases. That
state's motion fee requirement, which became effective on July 1,
2003, thirteen days before New York State's, was also established to
address budgetary issues. However, the Minnesota legislature clearly
considered cases involving residents most needing protection, i.e.,
incapacitated persons and children, to require exclusion from the
motion fee statute.

A similar exemption is in order in New York State. Those who are
appointed by the Court to protect the interests of the State's
incapacitated persons are performing a valuable function, and should
not be deemed to be among those who must "pay accordingly" for use of
Court resources when their duties require that a motion be filed.
Consequently, an amendment to the CPLR exempting fiduciaries, court
evaluators, guardians ad litem, court-appointed attorneys and court
examiners from motion fees would be good law based on sound public
policy.

 LEGISLATIVE HISTORY :
New Proposal.

 FISCAL IMPLICATIONS :
To Be Determined.

 LOCAL FISCAL IMPLICATIONS :
To Be Determined.

 EFFECTIVE DATE :
Immediately.