Long road leads to anniversary fee defeat

Issue September 2004

In a major victory for members of the bar and for all citizens of the commonwealth, the state legislature on July 30 voted to defeat Gov. Mitt Romney's final attempt at imposing so-called "anniversary fees" on court cases pending across the state.

Under the governor's "anniversary fees" plan, which was passed at the height of the state's fiscal crisis in 2003, plaintiffs were to be charged an additional $120 in the Superior Court and $90 in the District Courts for each year in which the court failed to dispose of their case. Plaintiffs would be charged even when the delay was caused by the defendant or by the courts themselves. Failure to pay the fee could have resulted in the plaintiff being thrown out of court.

Following more than a year of work spearheaded by the Massachusetts Bar Association, the legislature overrode the governor's veto of an MBA-backed amendment to the FY05 budget that would have repealed the fees. That amendment was filed in April by Rep. Eugene O' Flaherty (D-Chelsea) and was approved by both the Massachusetts House and Senate.

Romney first attempted to negate the repeal through amendments and then through a veto. These efforts failed as the legislature overrode both the proposed amendments and then the veto.

"Not only was this an administrative disaster for our already overburdened courts, but it unfairly singled out some litigants and petitioners to the exclusion of others," said then-MBA President Richard C. Van Nostrand on the day of the veto override. "Given that most litigants, particularly those in Superior Court, cannot obtain a trial within one, two, three or even more years, these fees unjustly penalized them for something beyond their control.

"This was an experiment that the legislature, to its great credit, soon realized was unfair in practice and stood in the way of access to justice. We appreciated the legislature's initial support of the efforts to repeal these unusual fees, and we thank them again for their leadership and wisdom in rejecting the governor's attempt to keep fees in place through a veto," Van Nostrand said.

The legislature's override vote was the culmination of months of effort to eliminate the fees, beginning in Sept. 2003 with a directive to the Civil Litigation and Access to Justice Sections to study the issue from Van Nostrand. At the Nov. 2003 House of Delegates meeting in Worcester, the sections jointly recommended that the MBA actively oppose and work to repeal the anniversary fee through legislative action, and immediately establish a task force to recommend other methods of opposition, including leading or joining a challenge to the fee in the courts. The Delegates approved that recommendation by unanimous vote.

Co-chaired by MBA Vice President Mark Mason of Springfield and David White-Lief of Boston, the task force included David Bikofsky, Roy Bourgeois, Lisa Brodeur-McGan, Thomas Carey, Martin Healy, Patrick Clendenen, Michael Conley, Adam Bemporad, Edward McIntyre, Chris Milne, Michael Mone, Denise Murphy, James Van Buren, Kim Winter and Al Zabin.

In January 2004, the task force presented its findings and the House of Delegates unanimously approved its recommendation to continue the legislative action and to pursue litigation to block the fees if necessary. At the time, White-Lief told the delegates, "We are all mindful of the need of the courts for more funds, but this policy is just wrong."

With the House of Delegates blessing, the task force went to work on the lawsuit.

"Everyone on the committee was asked to look for possible clients with an appropriate case," White-Lief recalled. "First, we identified the types of cases we wanted. We were looking for a mix of cases to show discrimination in a lot of different directions - cases in Superior Court that could have been in Housing Court, or cases in Probate Court that could have been in Superior Court…"

White-Lief praised Prof. Thomas Carey, who took the lead in drafting the suit, which he termed "really a complex and involved brief." He also is proud of the entire task force. "It was a really hardworking committee - everyone had a hand at editing the brief. It was really gratifying, because there was some really involved legal research that was delivered. And there were a lot of technical things. Just where to file was a difficult thing to decide."

In late June, following the governor's proposed amendments, the MBA filed suit, asking the Supreme Judicial Court to declare the fees an unconstitutional deprivation of due process and equal protection.

"The anniversary fee task force was organized in response to our membership's outcry to repeal the anniversary fee statutes," Mason said. "The work of the task force exemplifies the importance of bar associations in meeting the needs of the bar, the public and the administration of justice in general."

The MBA's legal action was filed on behalf of a diverse group of plaintiffs, including a plaintiff in a medical malpractice action whose case was delayed by the bankruptcy of one of the defendant physicians and the failure of an insurance company, a child who suffered brain damage from lead paint in his apartment, the estate of a child killed by a hit-and-run driver who delayed matters by refusing to answer questions about the case, and a van and storage company seeking to recover damages for breach of contract. In each instance, the plaintiffs were prepared but were unable to obtain a trial from the court where their cases were pending and were assessed the anniversary fee nonetheless.

Upon filing of the MBA lawsuit, Van Nostrand stated: "While the intent of these fees is to generate much-needed new revenue for the state, the fee system is riddled with troublesome issues. We must now resort to the courts to attempt on behalf of the citizens of Massachusetts to block this misguided policy."

Although the fees have been eliminated by the legislature, the MBA's suit has not yet been dismissed.

"We know that the effective date from the statue is July 1," White-Lief said. "The court could decide it still intends to collect the money on bills that were issued during the roughly eight months the fees were in place."

So what's next? White-Lief predicts that the anniversary fees "will just fizzle away and soon be a bad memory."

The most unfortunate aspect, he said, "is that the governor's office didn't seek the input of the courts or of the organized bar before making this part of the budget.

"It was doomed to fail, and it was unfair - in addition to being unconstitutional," he said. "We all know the courts need to be funded, but not in such a haphazard way."

One other hallmark of the failure of the fees concept, White-Lief noted, is that "there is no indication that any case was settled any sooner because of the fees. Nothing moved - the speed of disposition of cases did not vary as a result of enactment of the anniversary fees. We're waiting just as long."