HOD votes to file suit over anniversary fees

Issue Februray 2004

The MBA House of Delegates has voted to authorize a legal challenge to the state's new "anniversary fee" policy by filing an action in Superior Court on behalf of a number of plaintiffs against the Clerk of Courts.

The decision to pursue direct legal action was made by a unanimous vote following a recommendation from an MBA task force appointed in November by MBA President Richard C. Van Nostrand. The HOD meeting took place on Jan. 22 at the start of Annual Conference 2004.

Enacted during the last legislative session through Sections 497 and 502 of Chapter 26 of the Acts of 2003, the new fees of $90-$120 will be assessed on civil suits or petitions in the district, superior, and Boston Municipal courts that have not been resolved within a one-year period. Failure to pay the fee can result in a case being dismissed.

"The intent of this fee is to generate millions of dollars in new revenue for the state, however the fee system is riddled with troublesome issues," said Van Nostrand. "Not only is it a potential administrative disaster for our already overburdened courts, but it also unfairly singles out some litigants and petitioners to the exclusion of others.

"Most troubling, however, is the potential for denying access to justice for indigent individuals who face having their cases dismissed simply because they cannot afford to pay the fee."

According to task force co-chairs, David White-Lief and Mark Mason, "We are all mindful of the need of the courts for more funds, but this policy is just wrong."

In the MBA's legal action, the plaintiffs would represent the following category of claimants: indigent individuals who can't afford to pay the fee; individuals maintaining actions in the Superior Court that, by virtue of concurrent jurisdiction, could have filed in the Probate and Family Court and the Housing Court (such as Petition to Partition and lead paint actions); and individuals who cannot get a trial date. In this latter regard, the MBA believes that this class of claimants is arbitrary, in that individuals have no control over case flow in typically backlogged courts.

The MBA court action will be filed within the next few months. Former MBA president Michael Mone has agreed to lead the MBA's legal action on a pro bono basis, according to White-Lief.