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February 20, 1981

Donna M. MURILLO, Plaintiff,
W. Lewis BAMBRICK, Clerk of the Superior Court of New Jersey, Defendant

The opinion of the court was delivered by: STERN

Plaintiff Donna Murillo, on behalf of herself and all others similarly situated, brings this action pursuant to 42 U.S.C. § 1983 challenging the constitutionality of a New Jersey law which required matrimonial litigants, and only matrimonial litigants, to pay a fifty- or sixty-dollar trial fee in addition to the filing fee required of all civil litigants. Plaintiff seeks a declaration that these laws, which were abolished by the New Jersey state legislature during the pendency of this suit, violated the equal protection clause of the Fourteenth Amendment. In addition, plaintiff requests a refund of all matrimonial trial fees collected from class members, but held in escrow by order of the Court, from the inception of the lawsuit until the demise of the challenged legislation on September 1, 1980.

I. Facts and Procedural History

 On June 18, 1979, plaintiff Donna Murillo commenced a divorce against her husband in the New Jersey Superior Court. She paid a sixty-dollar filing fee, the same fee required for all actions brought in the Superior Court, and her husband was served with a summons and complaint. When he did not appear to contest the action, plaintiff sought the entry of a default judgment. In most actions indeed, in any state court action in New Jersey except a matrimonial action Mrs. Murillo's case would have been ready for trial and she could have obtained a default judgment without delay. Because her action was for divorce, however, she could not obtain a default judgment until she paid an additional fee, a so-called "trial fee," of fifty dollars. This fee applied even though the matter was uncontested. Had Mrs. Murillo paid this fee, and had her husband later contested the divorce, plaintiff would have been required to pay an additional "stenographer's fee" of ten dollars before the matter could be tried. Like the trial fee, the stenographer's fee was imposed only on matrimonial litigants. *fn1"

 If Mrs. Murillo had been an indigent, she could have applied to have all fees waived. N.J.Court Rules 1:13-2(a), 4:79-2. At the time she instituted the proceedings, however, she earned twenty-five to twenty-eight dollars per day as a domestic, and did not qualify as an indigent. The State of New Jersey had thus placed plaintiff in a dilemma: either she would have had to pay what was to her a substantial sum to sue for divorce; or she would have remained hostage to a marriage which under the substantive law of the State she was entitled to have dissolved.

 Mrs. Murillo filed suit in August 1979 in federal court seeking a declaration that the state statutes under which additional trial fees were collected only from matrimonial litigants, N.J.Stat.Ann. § 2A:34-16 and N.J.Court Rule 4:79-2, violated the equal protection clause of the Fourteenth Amendment. On September 26, 1979, at an initial hearing on plaintiff's application for a temporary restraining order, we found that Mrs. Murillo had demonstrated immediate and irreparable harm *fn2" and the likelihood of success on the merits. The Court, pursuant to Rule 23, Fed.R.Civ.P., provisionally certified a class consisting of all matrimonial litigants in the State of New Jersey who had not yet paid their trial or stenographic fees and entered a temporary restraining order. The order required defendant W. Lewis Bambrick, Clerk of the Superior Court of New Jersey, to deposit all fees collected pursuant to N.J.Stat.Ann. § 2A:34-16 and N.J.Court Rule 4:79-2 in an interest-bearing bank account rather than transfer the funds to the general state treasury, as was the usual procedure.

 During hearings conducted in late September and early October 1979, it came to the Court's attention that the provisions under attack by Mrs. Murillo were also the subject of review by the New Jersey Supreme Court and the state legislature. At the suggestion of the State, and with plaintiff's consent, the Court stayed this action to permit the State to resolve this matter, if possible, by legislative action. The stay would afford the New Jersey Supreme Court a reasonable time to evaluate the fee structure of the court system, to make whatever recommendations it deemed appropriate to the Governor and legislature, and would permit the legislature a reasonable time to act on the Supreme Court's recommendations. The parties agreed to continue the restraints in the interim: all matrimonial fees would be collected from litigants seeking divorces and deposited in the interest-bearing escrow account created by order of the Court. None of these actions would prejudice the rights of the parties to the fund.

 In the summer of 1980 the anticipated reforms finally came to pass. The state legislature abolished the special trial and stenographer's fees exacted from matrimonial litigants and created a uniform system for all categories of civil litigation. *fn3" The legislation was made effective September 1, 1980, but matrimonial litigants were afforded only prospective relief. Thus, the rights of Mrs. Murillo and her fellow class members were still at issue. From September 27, 1979, through September 1, 1980, all of the fees generated under the former system had been collecting in the escrow account, a sum now estimated at $ 1.3 million. Although the state legislature had abolished the dual fee system for all future litigants, defendant Bambrick maintained that the State was entitled to keep the funds it had already collected and held in escrow. Despite the Court's efforts to accommodate the State's request for an opportunity to resolve this matter on its own, we were required to conduct a trial and reach a determination on the merits of plaintiff's constitutional claim. The trial took place on September 9 and 10, 1980. At its conclusion, we found that the New Jersey scheme under which matrimonial litigants were required to pay special trial and stenographic fees was not a rational means to further any articulated state interest, and held that the scheme violated the equal protection clause of the Fourteenth Amendment. Accordingly, we ruled that plaintiffs were entitled to a refund of the monies paid into the escrow account with interest. This opinion is intended to explain and supplement that decision.

 II. Standard of Review

 The Supreme Court has established two standards for evaluating whether legislation satisfies the equal protection clause. If the challenged classification operates to the disadvantage of a suspect class or impinges upon a fundamental right under the Constitution, the statute will be invalidated unless the state can demonstrate a compelling interest in making the classification. This is a very heavy burden, and the determination that a statute creates a suspect classification or impinges on a fundamental interest has usually been fatal. Thus far, the Supreme Court has limited suspect classifications to race, national origin, and alienage, and fundamental interests have been limited to the right to vote, the right to interstate travel, the right to appeal in criminal cases, and the right of access to the courts in certain civil cases. *fn4"

 If, as in this case, no suspect class or fundamental interest is present, the statute must still pass the "rational basis" test that is, the classification must rationally further "some legitimate, articulated state purpose." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17, 93 S. Ct. 1278, 1288, 36 L. Ed. 2d 16 (1973). *fn5" The rational basis test has traditionally been highly deferential. As the Court stated in Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 1161, 25 L. Ed. 2d 491 (1970):

In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality." Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 340, 55 L. Ed. 369. "The problems of government are practical ones and may justify, if they do not require, rough accommodations illogical, it may be, and unscientific." Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S. Ct. 441, 443, 57 L. Ed. 730. "A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. 420, 426, 81 S. Ct. 1101, 1105, 6 L. Ed. 2d 393.

 On the other hand, the Court has made clear that it will no longer uphold a statute on any basis that the state happens to put forth. The state must establish that its legislation is intended to further a "legitimate, articulated state purpose." Weinberger v. Wiesenfeld, 420 U.S. 636, 648, 95 S. Ct. 1225, 1233, 43 L. Ed. 2d 514 (1975). The mere recitation by the state of a benign purpose in discriminatory legislation "is not an automatic shield which protects against inquiry into the actual purposes underlying a statutory scheme." Id. The Court in that case observed that "(the) Court need not in equal protection cases accept at face value assertions of legislative purposes when an examination of the legislative scheme and its history demonstrate that the asserted purpose could not have been a goal of the legislation." Id. at 648 n. 16, 95 S. Ct. at 1233 n. 16. See also Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S. Ct. 715, 66 L. Ed. 2d 659 (1981).

 III. The Fifty-dollar ...

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