BILL NUMBER: S5844

SPONSOR: COMRIE
 
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-ap-
pointed 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 guardi-
anship 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 seek-
ing leave to proceed as an indigent person were exempted from the
mandate. The fee was one of the measures established to provide addi-
tional 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, ultimate-
ly 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 guardi-
an, court-appointed attorney serves as a disincentive to accept such
appointments and to assist those most in need, and that such fees penal-
ize 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 "tile inevitable
result of requiring fees from a guardian, guardian adaitem, court evalu-
ators 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. 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 allo-
cated 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." There-
fore, an amendment to the Civil Practice Law and Rules (CPLR) S 8020
(a), the section of the statute incorporating the motion fee require-
ment, 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 imposed a financial penalty that burdens the very some 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 transfer of a person to a nursing. home, increase or
decrease of a bond, appointment o counsel, approval of medical treat-
ment, and settlement of final accounting. Many of the issues and deci-
sions 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.2106-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 incapaci-
tated 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.  Consequent-
ly, 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:

S 8626 COMRIE Same as A 5363 Titus

 
FISCAL IMPLICATIONS:

To Be Determined.

 
LOCAL FISCAL IMPLICATIONS:

To Be Determined.

 
EFFECTIVE DATE:
Immediately.