Appendix — Murillo v. Bambrick

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 81-1786

DONNA M. MURILLO

W. LEWIS BAMBRICK, Clerk of the Superior

Court of New Jersey,

Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

C.A. No. 79-2345

Argued October 29, 1981

Before: ADAMS, ROSENN, and SLOVITER, Circuit Judges

(Filed June 17, 1982)

JAMES R. ZAZZALI

Attorney General of New Jersey

BERTRAM P. GOLTZ, JR. (Argued)

Attorney

JOSEPH RUSSO

‘OPINION OF THE. COURT

ADAMS, Circuit Judge.

In this appeal, we are asked to review an order of the

On June 18, 1979, plaintiff Donna Murillo, a resi-

matrimonial action, N.J.S.A. 2A:34-16 and N.J. Court

Rule 4:79-2 applied.' According to these provisions, di-

1. N.J.S.A. 2A:34-16 (West) (repealed 1960) provided thar

{e|xcept in actions in forma pauperis, before any matrimonial

action is approved for trial the plaintiff or counterciaimant shail

pay to the clerk of the superior court, for the use of the state,

the surn of $50 and in litigated actions the additional sum of

$10. N.J. Court Rule 4:79-2 (deleted 1980) elaborated upon

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int

default or the service of a

within 30 days of the entry of

Pleading contesting the action.

80. §4. The

fee

for che elimination of the matrimunial

compensate for inflationary pressures.” [d. at 271.

$60 to $75. in order “to

lees and to

Following the Legislature's action, the district court

the case and, after a two-day trial, concluded

arrangement equal

protection clause. Murillo v. Bambrick, 508 F. Supp. 830

(D. N.J. 1981). After determining that the

Rev. 341, 343-44 (1949); see also Martin v. Struthers, 319

;

state shal] “deny to any within its jurisdiction the

equal protection of the laws,” has been construed to set

out such a standard. This “equal protection clause” has

never been interpreted so as to strike down all legislative

efforts that do not apply “to all persons at all times and in

all places,” Trimble v. Gordon, 430 U.S. 762, 785 (1977)

” Fiss, Groups and the Equal Protection Clause,

& Pub. Aff 107, 109 (1976). Toward this end, in

several decades of constitutional

: i

ili

to achieve a compelling governmental interest.

while statutes in the economic, social welfare, or regula-

upheld unless not rationally related to legitimate public

ends.* With respect to a statute challenged on equal pro-

4 On occasion, the Supreme Court has employed an “interme-

diate” standard of equal protection review. Under this “middie-

. gitimacy — will be accepted if substandially related to important

_ state objectives. See, ¢.g., Craig v. Boren, 429 U.S. 190, 197 (1976);

see generally Blattner, The Supreme Court's “Intermediate” Equal

tection grounds therefore, a reviewing court is obligated

initially to determine the appropriate level of judicial re-

view, and then carefully to consider whether a sufficient

’ has been made under that test so as to override

validated a statute providing for compulsory sterilization

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No decision of the Supreme Court stands squarely

for the proposition that state restrictions on divorce must

strictions on, for example, the right to travel, the right to

Whatever the merits of this argument, it should be

recognized that any such “fundamental right” to secure

be evaluated under the same exacting standards as re-

if iii it % Ha

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ip Gat «2 tonne te Glo cme.

Jersey's statute did

of indivi

a divorce — whether a procedural “right” of access to a

judicial forum to sue for divorce or some substantive

ousiende tetdon

ture of divorce for equal protection purposess. See Developments in

the Law, supra note 7, at 1310. Under Zablocki, to be sure, the right

to marry is elevated to a “fundamental” status; the Zabiocki opinion

is silent, however, as to the presence of a fundamental nght to

Halt

terests,” 434 U.S. at 388).

Finally. it could be maintained that recognition of a fundamen-

tant state interests (nor| closely tailored to effectuate only those in-

10a

difficulties and costs that inhere in the nature of divorce.

Rather, New Jersey's statutory scheme provided for

ready access to divorce in appropriate cases, but deemed

divorce to be a service which should be paid for at least

in part by each individual who sought to obtain it. Such a

determination did not constitute an infringement on any

“right” to sue for or to obtain a divorce. Instead, it reflect

ed an apparent judgment that the costs of exercising

that right, like the costs of exercising many constitution-

not be

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11. Cf. Harris v. McRae, 448 U.S. 297, 316 (1980) (holding

that, even though Roe v. Wade, 410 U.S. 113 (1873), and its prog-

12 See N.J.S.A 2A:34-16 (repealed 1980). It is the presence of

13. At the Gme Murillo instituted these proceedings. “she

earned twenty-five to twenty-eight dollars per

sources to avail herself of the full range of protected choices”); see

also Maher v. Roe, 432 U.S. 464 (1977).

to the district court, New Jersey “had thus placed plainuff in a di-

lemma: etther she would have had to pay what was to her a substan-

Gal sum to sue for divorce; or she would have remained hostage to a

marriage which under the substantive iaw of the State she was enu-

ded to have dissolved.” Id.

conditions, “it simply does not follow that a woman's freedom of

choice carries with it a constitutional entitlement to the financial re-

eny recognized a woman's right to secure an abortion under certain

in Boddie v. Connecticut, 401 U.S. 371 (1971).

12a

file for a divorce might have been somewhat easier if

New Jersey subsidized a greater portion of the costs of

divorce. Again, however, we are not persuaded that any

fundamental right to a divorce carries with it what in es-

sence would have to be the right to a divorce that is free

ceed, therefore, as did the district court, to essess the

of the legislation under the “rational re-

lation” standard of equal protection review.

plaintiffs’ equal

tection challenge. See Schweiker v. Wilson, 450 U.S. 221

(1981). The rational basis test simply requires “that leg-

islation classify the persons it affects in a manner ration-

deemed to have infringed on the right to make that choice. See Har-

ris v. McRae, 448 U.S. 297 (1980) (holding that the federal govern-

ment may subsidize childbirth without also subsidizing abortion ):

see also Maher v. Roe, 432 U.S. 464 (1977).

15. The deference accorded legisiators under the rational basis

test was perhaps most strongly stated in McGowan v. Maryland, 366

U.S. 420 (1961): “A statutory discrimination will not be set aside if

any state of facts reasonably may be conceived to justify it.” Id. a

426 (emphasis added). See also Hodel v. Indiana, 452 U.S. 314

tiles |

U.S. 93, 97 (1979).

Continued )

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(1981), and City of Mesquite v.

.S.L.W. 4210, 4213 (U.S. Feb. 23,

The Rationality Require-

42 Ohio St. L.J. 639 (1981).

Bd. v. Fritz, 449 U.S. 166 (1980),

Creamery Co. 449 U.S. 456 (1981),

15.

The first task of a court in evaluating an equal pro-

tection claim under the rational relation test is to identify

with particularity the precise classification alleged to be

irrational. Obviously, it would constitute an irrational act

— and hence would offend the Constitution's promise of

suaded that the New Jersey Legislature did not proceed

16. For example, it would be difficul: to defend as “rational” a

state statute that extracted a $50 divorce fee from individuals with

surnames beginning with A to M. but collected only $20 from per-

sons whose names begin with N to Z — at least in the absence of

ary information that might reasonably distinguish members of the

first group from members of the second with respect to matters of

cohabitated for an eighteen-month period and that

17. In addition to the three existing “fault” grounds for divorce

— adultery, desertion. and extreme cruelty (the latter two of which

476. 479 (1971): see also Skoloff. The Divorce Reform Law: A Brief

Review. N.J. LJ.. Aue. 3. 1971. at-l-

of the Divorce Law Study Commission 6

(May 11, 1970). The 1971 reform legislation did not alter

or affect the previousily-established trial-fee arrange-

ment, however, and for the next nine years, those fees

continued to be collected from individuals who filed for

divorce pursuant to the requirements of the amended

The district court concluded that a “dramatic

newly enacted eighteen-month separation provision.

{

See Note, The 1971 New Jersey Divorce Law, supra note 17, at

495-96 & n.121 (discussing N.J.S.A. 2A:34-7 as amended). Neither

did the Legislature mean to suggest. as subsequent State court

reasonably could have believed that the increasing costs

to the judicial system as a whole justified the recovery of

additional monies and that an appropriate place to begin

would be in the divorce field, where the litigants had al-

position of this case, we see no reason to express an opinion as \o

argument.

19. The district court. condemned the cial fee arrangement on

the basis of actual events that transpired after 1971 — events which

demonstrated, in the district court's view, that “the Scate's belief

that it was collecting these fees to defray the higher cost of provid-

ing judicial services to matrimonial litigants was |in fact| false.” 508

F. Supp. at 836. Further attention is given to this portion of the dis-

islature retained the divorce fee arrangement. While such commen-

tary would of course be heipful were it available, see Schweiker v.

Wilson, 450 U.S. 221, 244 & n.6 (1981) (Powell, J., dissenting), a

state is under no obligation to “articulate its reasons for enacting a

in the absence of legislative history. suggestions as to possibile legis-

lative motivations must necessarily be advanced by counsel for the

State, we recently concluded that “(s/o long as we are careful not to

of more recent Supreme

e.g., Michael M. v. Supertor Court of Sonoma County.

469-70 (1981) (plurality opinion) (“the search for the ‘actual’

mary’ purpose of a statute is likely to be elusive”); Fritz, supra,

U.S. at 179(“Where. . . there are plausible reasons for (legislative)

action, our inquiry is at an end. It is, of course, ‘constitutionally ir-

relevant whether this reasoning in fact underiay the legislative deci-

sion’ ” (quoting Flemming v. Nestor. 363 U.S. 603. 612 (1960))):

but see Minnesota v. Clover Leaf Creamery Co.. 449 U.S. 456. 463

n.7 (1981). Compare Kassel v. Consolidated Freightways Corp.. 450

U.S. 662, 682 n.3 (1981) (Brennan. J.. concurring in the judgment)

with id. at 703 n.13 (Rehnquist, J., dissenting): see also G. Gunther.

wee ncn) ea Cae

ed in law as though they were the same.” Tigner v. Tex-

ill an it

atl lif Hi ale

have adopted a trial fee system in other areas, such as class actions.

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508 F. Supp. at 836 (footnotes omitted).™ Carrying this

line of thought to its logical point of termination, the dis-

trict court held that, because “the State's belief that it

was collecting these fees to defray the higher cost of pro-

viding judicial services to matrimonial litigants was |de-

monstrably] false,” id., New Jersey's statute could not be

23. Whereas divorce fees provided 53% of the costs of operat-

ing the matrimonial trial system. sve note 10 supra, litigants ac-

counted for 30% ($4.90 million in revenues out of $16.41 million in

’ eosts) of the monies spent by the State in providing courts to adjudi-

cate general civil law and equity matters.

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sey's on becomes no less rational simply because

the State has chosen to collect from other civil litigants a

Second, even were we persuaded that the divorce

Ppp iy eye tame nna

different percentage of the costs of their respective judi-

cial services.

tit

that a State’s license “fee” arrangement wes in reality a tax “raised

to defray the general expenses of government”).

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Retvead Retirement Beard °. Fritz, 449 U.S. 166, 179

n. 12 (1980) (quoting Vance v. Bradley, supra, 440 U.S.

at 97). All that is required in either instance — whether

at the time of enactment or at the time of oversight — is

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mants as to the reasons for or the worth of a previously enacted stat-

ute might weil iniibs the free exchange of ideas within a iegisiative

body, and indeed could discourage any legislative action whatsoever

to correct the problem perceived here — retention of (allegedly)

anachronistic laws. After all, it cannot be doubted that the report of

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between the constitution and the law

“ ‘The burden is on the

negative every conceivable basis which might support it~

Lehnhausen v. Lake Shore Auto Parts Co.. 410 U.S. 356. 364

(1973) (quoting Madden v. Kentucky. 309 U.S. 83. 88 ( 1940).

holding with respect to the $50 tri tee

ute with the United States Constitution, we hold that the

State’s trial fee was not inconsistent with the require-

ments of “the equal protection of the laws.” Accordingly,

the judgment of the district court will be reversed, and

the matter will be remanded to that court for further pro-

ceedings consistent with this opinion.

SLOVITER, Circuit Judge, dissenting.

tutional analysis. Murillo v. Bambrick, 508 F. Supp. 830,

833 (D.N.J. 1981). The district court correctly held that

no suspect classification is involved in this case. Howev-

er, | conclude from the line of Supreme Court precedent

holding that the right to marry is fundamental that the

correlative right to obtain a divorce is fundamental, that

therefore the classification imposed in the statute before

us is subject to heightened judicial scrutiny, and that it

cannot survive such scrutiny.

In Boddie v. Connecticut, 401 U.S. 371 (1971), the

right to obtain a divorce. In United States v. Kras, 409

The denial of access to the judicial forum in

Boddie touched directly, as has been noted, on the

marital relationship and on the associational inter-

ests that surround the establishment and dissolu-

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met by statutory classifications affecting

other fundamental rights.

In Dunn v. Blumstein, 405 U.S. 330, 337 (1972)

the Court invoked strict scrutiny in invalidating a

durational residency requirement for voting which di-

impinged on two fundamental rights, the right to

vote and the right to interstate travel. In explaining its

use of that standard even though the Tennessee statute

me ee

differences are irrelevant for present purposes. Sha-

piro [v. Thompson, 394 U.S. 618 (1969)) implicitly

realized what this Court has made explicit

Id. at 341 (citation omitted). See L. Tribe, American Con-

stitutional Law 1005 n.18 (1978). This approach is

equally applicable to burdens on the right of

and divorce, for, as the Court stated in Zablocki, “[E]ven

those who can be persuaded to meet the statute's re-

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415 U.S., at 262-263; San Antonio Independent School

Dist. v. Rodriguez, 411 U.S., at 16-17; Bullock v. Carter,

405 U.S. 134, 144 (1972).” Zablocki v. Redhail, 434 U.S.

. at 388. Burdens which operate directly upon fundamen-

tal rights, including the right to marry or to obtain a di-

vorce, are not necessarily constitutionally infirm. “{A]

state may legitimately say that no one can marry his or

her sibling, that no one can marry who is not at least 14

years old, that no one can marry without first passing an

Court found that because the Constitution permits other

states to disregard a finding of domicile entered in an ex

parte proceeding in the face of “cogent evidence” to the

safeguard against

would a requirement of bona fice residence alone.” /d. at

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2 The State's suggestion that because this is an equal provec-

don case, the cial court must consider any conceivable rationale.

whether or not it was raised, and that we in turn have an obligation

to consider the State's contentions, whether or not raised beiow, is

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majority's hypothetical rationale for the special mat-

should be preferred over that given by the legislature

1980 N.J. Sess. Law Serv., ch. 80, at 271 (emphasis added). | see no

reason why the

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42a

APPENDIX B

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civil Action No. 79-2345

DONNA M. MURILLO

vs.

W. LEWIS BAMBRICK, Clerk of the

Superior Court of New Jersey,

Defendant.

Newark, New Jersey

Pebruary 20, 1980

FEBRUARY 20, 1980 OPINION

OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

APPEARANCES :

ARTHUR USCHER, ESQUIRE

435 Summit Avenue

Hackensack, New Jersey 07601

Attorney for Plaintiff

JOHN J. DEGNAN, Attorney General of

New Jersey

By: Mark I. Siman, Deputy Attorney

General

Department of Law and Public Safety

Division of Law

Banking, Insurance and Public Securi-

ties Section .

43a

35 West State Street

Trenton, New Jersey 08625

Attorney for Defendant

STERN, District Judge

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 liti-

garts, and only matrimonial litigants, to pay

a fifty- or sixty-dollar trial fee in addi-

tion 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 Amend-

ment. In addition, plaintiff requests a re-

fund 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

44a

legislation on September 1, 1980.

I. Facts and Procedural History

On June 18, 1979, plaintiff Donna

Murillo commenced a divorce against her hus-

band 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 husbanu

45a

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 siete

av Jesuey Count Bale 4:79-2 provided:

Except as otherwise provided by R. 1:' 2

[actions by indigents], before any mesxci-

monial action is approved for trial the

46a

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 sub-

stantial 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 di olved.

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 matri-

monial 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

47a

restraining order, we found that Mrs. Murillo

had demonstrated immediate and irreparable

itl” ai te likelihood of success on the

merits. The Court, pursuant to Rule 23, Fed.

R.Civ.P., provisionally certified a class con-

sisting 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 re-

quired 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.

48a

During hearings conducted in late Sep-

tember 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 legis-

lative action. The stay would afford the New

Jersey Supreme Court a reasonable time to

evaluate the fee structure of the court sys-

tem, to make whatever recommendations it

deemed appropriate to the Governor and legis-

lature, and would permit the legislature a

reasonable time to act on the Supreme Court's

recommendations. The parties agreed to con-

tinue the restraints in the interim: all

matrimonial fees would be collected from liti-

gants seeking divorces and deposited in the

interest-bearing escrow account created by

order of the Court. None of these actions

49a

would prejudice the rights of the parties to

the fund.

In the summer of 1980 the anticipated

reforms finally came to pass. The state legis-

lature abolished the special trial and steno-

grapher's fees exacted from matrimonial liti-

gants and created a uniform system for all

categories of civil ‘etenmeal” The legis-

lation 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 ac-

commodate the State's request for an opportun-

ity to resolve this matter on its own, we were

reguired to conduct a trial and reach a deter-

mination on the merits of plaintiff's consti-

tutional 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 articu-

lated state interest, and held that the scheme

violated the equal protection clause of the

Pourteenth 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

S5la

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 dis-

advantage 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 fundamen-

tal interests have been limited to the right

to vote, the right to interstate travel, the

rigit to appeal in criminal cases, and the

52a

right of access to the courts in certain civil

cases.

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. l, 17

1973). The rational basis test has

traditionally beer highly deferential. As

4/ Plaintiffs do not contend that their “right of

access” to the state courts to cbtain a divorce has

ee eee -

53a

the Court stated in Dandridge v. Williams, 397

U.S. 471, 485 (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." Lin issee v.

Natural Carbonic Gas Co.,

U.S. 61, 78. “The problems of

government are practical ones and

may justify, if they do not re-

quire, rough accommodations --

illogical, it may be, and un-

scientific." Meeropolis Theatre

Co. v. City o s23e: + 3

° -70. statutory dis-

crimination will not be set

aside if any state of facts

reasonably may be conceived to

justify it.” McGowan v. Mary-

land, 366 U.S. ’ .

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 leg-

islation is intended to further a "legitimate,

articulated state purpose.” Weinberger v.

54a

Wiesenfeld, 420 U.S. 636, 648 (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 leg-

islative 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.

See also Minnesota v. Clover Leaf Creamery Co.,

49 U.S.L.W. 4111, 4113 n.7 (January 21, 1981).

III. The Pifty-dollar “Trial Fee"

A. Background

To determine whether the challenged

provisions rationally serve a legitimate, ar-

ticulated state interest it is important to

understand the evolution of the substantive

and procedural law of divorce in New Jersey.

55a

Until recently, New Jersey recognizei

only three grounds for divorce: adultery,

desertion, and extreme cruelty. N.J. Rev.

Stat. §2A:34-2 (1952). The State considered

divorce a remedy reserved only for the most un-

usual circumstances, not merely for every sit-

uation in which both parties agreed they wanted

to dissolve their marriage.

In accordance with the State's deter-

mination to scrutinize all divorce cases care-

fully, a system developed as early as the turn

of the century whereby special masters were ap-

pointed to review each divorce case before it

went to trial. These special or advisory

masters screened every file and reported to

the chancellors, who ultimately heard only

non consensual, non-fraudulent matrimonial

cases. Originally, the esvisssy masters were

compensated pursuant to rules promulgated by

the Chancery Court. For example, under Rule

266, Revised Chancery Rules (1928), matrimon-

ial litigants seeking a hearing before an

56a

advisory master and a subsequent trial were re-

quired to deposit fifty dollars with the clerk

of the court. Since the State had an interest

in preventing divorces on grounds other than

those explicitly permitted, it considered it-

self a party, albeit not in name, to every suit

for divorce. The State was omnipresent,

standing over the shoulders of the litigants --

in the body of the advisory master -- to pre-

vent collusive divorces.

Although the State eventually phased

out the office of advisory master, it still

intended the judicial system to exercise par-

ticularly careful oversight of divorce suits.

In 1948, the legislature created the system of

matrimonial trial fees at issue in this case.

‘No legislative history of the act exists, but

testimony introduced at trial indicates that

the legislature intended that, as the system

of advisory masters was abolished, the exist-

ing judicial structure would be required to

perform tasks previously executed by the

57a

masters. The fee system created by the newly-

enacted statute would institutionalize finan-

cial support for a category of cases requiring

closer judicial scrutiny and a greater alloca-

tion of court resources. Although the exact

purpose of the legislature in 1948 is now en-

shrouded in the mists of time, the fees fixed

by the statute were the same as those formerly

awarded to the masters by court rule. Thus,

the 1948 statute represented a change only in

procedure, not in substantive state policy.

In 1971, New Jersey's substantive law

of divorce underwent a dramatic change. The

state legislature, for the first time, adopted

a provision which permitted divorces on con-

sent of the parties. The Divorce Act was

amended, effective September 13, 1971, to per-—

mit as grounds for divorce:

Separation, provided that the husband

and wife have lived separate and

apart in different habitations for a

period of at least 18 or more consecu-

tive months and there is no reasonable

prospect of reconciliation. Provided,

further, that after the 18-month

period there shall be a presumption

that there is no reasonable prospect

for reconciliation.

N.J. Stat. Ann §2A:34-2(d). Whereas the State

had previously sought scrupulously to prevent

the consummation of collusive divorces, it now

provided that a divorce would be granted sole-

ly on a showing that a husband and wife had

lived separate and apart, either voluntarily

or involuntarily, for 18 months.

The purpose of this "no-fault" divorce

provision was evinced by the New Jersey

Divorce Study Commission which recommended

the passage of the legislation:

In such cases the parties should

not be required to resort to the

hypocrisy of accusing one or the

other of a marital wrong recog-

nized by our present statutes,

or the remedy of migratory .

divorce, which may in any event

be beyond their financial re-

sources. Similarly, the Com-

mission is equally convinced

that where both parties are

guilty of offenses against one

another, mutuality of fault

should not be a bar to divorce.

This can be viewed only as the

infliction of punishment by the

State. It cannot be justified.

Pinal Report to the Governor and the Legis-

lature of the Divorce Law Study Commission,

6 (May 11, 1970). More succintly, the

Superior Court announced shortly thereafter

that the rationale of the recent amendments to

the Divorce Act (L. 1971, 212) was “to termi-

nate dead marriages regardless of fault or

lack of fault." Quinn v. Quinn, 118 N.J.

Super. 413, 414, 288 A.2d 51, 52 (Ch. Div.

1972). See also Painter v. Painter, 65 N.J.

196, 205, 320 A.2d 484, 489 (1974); Babushik

v. Babushik, 157 N.J. Super. 128, 130, 384

A.2d 574, 575 (Ch. Div. 1978) ("The-public

policy of New Jersey is to terminate dead

marriages"). While the no-fault provision did

not represent an abdication of any interest

the State had in overseeing the divorce pro-

cess, see Manion v. Manion, 143 N.J. Super.

499, 502, 363 A.2d 921, 923 (Ch. Div. 1976),

it clearly represented a much more liberal

60a

conception of divorce than had theretofore

existed.

B. State Interests Involved

Defendant, represented by the Attorney

General of the State of New Jersey, has con-

tended that the vestigial statutes imposing

higher fees on matrimonial litigants remained,

at the time this suit was filed, a rational

means to further two objectives. First, and

it seemed at the time foremost, defendant ar-

gued that the additional fees helped pay for

the additional court resources required for

matrimonial me Second, defendant conten-

ded that the statutes served the State's legi-

timate interest in “not encouraging” divorces. _2/

6la

While it cannot be disputed that a state may

have a legitimate interest in regulating

domestic relations, Sosna v. Iowa, 419 U.S.

393, 404 (1975), and in financing its court

system, Manes v. Goldin, 400 F.Supp. 23, 30-31

(E.D.N.¥. 1975), aff'd, 423 U.S. 1068 (1976),

plaintiff contends that by the time this suit

was commenced, the extra charges placed on

matrimonial litigants could no longer be

justified on either of these bases.

lL. Added Costs

We turn first to the argument defendant

relied on principally throughout the proceed-

ings until the second day of trial. Defendant

contended that the matrimonial fees provided a

means of supporting the additional court costs

required to give divorce cases the high degree

of scrutiny required under New Jersey law. In

support of its contention, defendant pointed

to the following characteristics of matrimonial

litigation: (1) matrimonial judges review

62a

each file to see that service of process has

been properly made before trial approval is

granted; (2) seven judges in New Jersey have

been assigned exclusively to matrimonial mat-

ters and eleven others are temporarily assigned

to matrimonial matters in addition to other

duties; (3) judges from the Superior Court,

Law Division, must sometimes be assigned to

hear uncontested matrimonial matters on a

part-time basis; (4) the clerk's office

examines each file in matrimonial cases to de-

termine if there has been a responsive plead-

ing filed and to determine whether a default

has been properly entered; (5) the clerk's

office employs four persons full-time to send

out approval notices; (6) the court rules re-

_ quire a hearing with the plaintiff present in

every matrimonial action, even in those cases

which are uncontested; and (7) in child cus-

tody matters, the judge often requests a report

from the county probation department or the

state Bureau of Child Welfare on the family

63a

living conditions. In addition, defendant ar-

gued that the State is a third party, albeit

unnamed, in every matrimonial litigation. ‘This,

too, ostensibly results in added expenses, al-

though most likely, if at all, to the executive

branch rather than the court system. These

features of the matrimonial litigation system,

defendant contended, required the imposition

of fees which amounted between September 1979

and September 1980 to approximately $1.3

million.

The Court finds that the matrimonial

litigation system in New Jersey is not a par-

ticularly autonomous process and does not re-

quire additional monies to operate in conform-

ity with state law. The process by which a

case is reviewed to ensure that a complaint

and answer have been properly filed and that

service was proper is purely ministerial, and

could not occupy a significant portion of the

time of even the clerk's office relative to

other types of cases. The fact that certain

64a

judges are assigned exclusively or in part to

matrimonial matters in no way indicates that

more total judicial time is spent on these

matters.

It is clear that the additional fee

was intended not to finance the additional

clerical time spent on matrimonial cases, but

the extra time which a judge was formerly re-

quired to spend on such cases. The trial fee

had its genesis in the fifty-dollar fee paid

to the omnipresent advisory masters. In 1948,

when judges assumed the duties formerly

carried out by the masters, the fee was re-

tained to cover the new burden on the

judicial system. If it were true that prior

to New Jersey's institution of no-fault di-

vorce, matrimonial cases took up more of a

judge's time than other types of cases, it is

readily apparent that this is no longer the

case. The no-fault divorce statute provides

that there shall be a presumption of irrecon-

Cilable differences if the parties to a

65a

marriage are separated for at least eighteen

months; in practice the mere passage of time

is sifficient to obtain a divorce. The major-

ity of all divorce cases are now uncontested , 2/

and plaintiffs in such cases are rarely before

the judge for more than a few moments.2/ “!~

though a minority of actions, filed on the

basis of fault, may still require special

judicial scrutiny, most matrimonial litigants

require ab eumpeen@innsy judicial supervision.

Indeed, it was demonstrated at trial that the

average cost of disposing of a matrimonial

case was significantly less than the avera

cost of adjudicating other civil actions.

As defendant admitted on the second day of

trial, the State's belief that it was collect-

8/ Approximately 60% of all divorce matters are un-

Contested. Plaintiff's Trial Exh. P-l.

9/ Transcript of 9/9/80, at 31-33.

The estimated ratio of reverwe to expense for mat-

cases is 52.9% compared with 29.8% for general

civil law and general equity cases. See Defendant's

Trial Exh. D-l.

ing these fees to defray the higher cost of

providing judicial services to matrimonial

litigants was false. In fact, following

plaintiff's submission of proof, defendant

1l/

withdrew its first suggested rational basis.

2. Not Encouraging Divorces

As a legal matter, then, the State

was left with one legal leg on which to

stand. It still claimed that it could col-

lect higher fees from matrimonial litigants

as a rational means of furthering a state

policy of “not encouraging” that particular

67a

Defendant contends that

12/

kind of litigation.

quota

was

erdant

ying

vorce

as one

, the

and

tion

dis-

that

, that

tion

if ead! ay Ma

ih is:

relationship that requires if A sues B it

68a

the State has had a longstanding policy of

"not encouraging” divorces, and that this

policy continued at least through September

1980.

Solely because the defendant in this

case is an officer of the State of New Jersey,

12 continued - costs $60 unless A is Mr. or Mrs. B.

MR. SIMAN: The rational relationship is

the State's interest in the matrimonial re-

lationship.

THE COURT: You mean they want to dis-

courage such lawsuits?

MR. SIMAN: I don't know if that's the

- I think they want to — this is

a solem relationship that has been en-

tered into.

Transcript of 9/17/79 at 5-6.

represented by the Attorney General of New

Jersey, does not mean that the Court is bound

to accept his every contention as to the ar-

ticulated purposes of the State. Although de-

fendant may be cloaked in the mantle of the

State of New Jersey when he appears before this

Court, he does so with the same burdens and re-

sponsibilities as any other litigant. Defen-

dant's avowals of New Jersey state policy are

not sacrosanct. This Court is empowered --

indeed, it is required «- to pierce the sur-

face of defendant's assertions and to examine

the actual purposes underlying the statute in

question. Weinberger v. Weisenfeld, supra,

420 U.S. at 648. )

An examination of the legislative

scheme, including the history of its enactment

and demise, indicates clearly that at least

since passage of the no-fault divorce law, the

purpose of the matrimonial fee system has not

been to discourage divorces. As has been

pointed out earlier, testimony adduced at

70a

trial showed that the primary purpose of N.J.

Stat. Ann §2A:34-16 was to subsidize the gen-

eral state court system financially for assum-

ing the duties of heightened scrutiny once per-

formed by the advisory masters in divorce

cases. Implicit in the requirement that mat-

rimonial cases be specially reviewed may have

been the notion that the State sought to dis-

courage collusive or consensual divorces; if

so, the legislature abandoned this policy when

it passed the no-fault divorce law in 1971.

No longer did it cost more to process matri-~-

monial cases; no longer could the State say

that it sought not to encourage divorces. In-

deed, the State had said just the opposite.

Once the State determined that its citizens

could have a divorce, as a matter of right,

after an 18-month separation, it could not

continue to make it more expensive for its

citizens to assert those rights, based on a

policy which it discredited and set aside. It

would be a most unfair inconsistency to

7la

litigants such as Mrs. Murillo on the one hand

to encourage the termination of dead marriages

and on the other to raise substantial financial

barriers to obtaining a divorce. See, e.g.,

Quinn v. Quinn, supra, 113 N.J. Super. at 414,

288 A.2d at 52.

Consideration of the recent legislative

action deleting N.J. Stat. Ann. §2A:34-16 sheds

further light on this question. In a statement

appended to Assembly Bill No. 1073, which

abolished the matrimonial fee system, the

Assembly Judiciary, Law, Public Safety and

Defense Committee stated:

In the past, the $50.00 or $60.00

differential required for matri-

monial cases was justified by an

additional review provided in

such cases by a standing master

who determined whether or not the

matter was fit for trial. Today,

no similar review exists to

justify any such differential in

fees.

This statement, made by a committee of the

state legislature in a non-adversarial posture,

is persuasive corroboration of the testimony

72a

at trial that the fee system was not designed

to discourage divorces but was merely a

carryover from the days of the standing mas-

ters. The Assembly Committee concluded that

"(t]he elimination of these fees would thus

serve to eliminate an anachronism from the

court's fee structure." These remarks were

echoed by the Senate Judiciary Committee,

which pointed specifically to 1971 and the

divorce law revision as the juncture at which

N.J. Stat. Ann. §2A:34-16 became an

anachronism. Sen. Jud. Comm. Statement to

Assembly, No. 1073 (June 26, 1980). These

statements strongly suggest that the trial fee

was probably never intended to discourage

divorces; rather, it was a means of genera-

ting support for a more expensive category of

litigation. However, such a finding is un-

necessary to our decision. It is sufficient

that we find that, after 1971, the purpose to

discourage divorces has not existed, despite

defendant's contentions to the contrary, and

73a

the State has no other legitimate interest ety,

discriminating against matrimonial litigants.

IV. The Ten-dollar “Stenographer's Fee”

Pinally, the additional ten dollar

"“stenographer's fee" required of matrimonial

litigants whose cases are contested is imposed

without any articulated ee ad Any liti-

gated case is more expensive for the State than

cases which are uncontested, but matrimonial

litigants alone were forced to pay this

special stenographer's fee. In oral argument

defendant contended that the State's interest

13/ We need not decide whether, assuming New Jersey

sought to discourage divorces, the imposition of a

higher filing or trial fee would be a permissible means

of achieving that objective. We note, however, that

any attempt to discourage lawsuits which seek pro-

tect rights granted by the substantive law of the

State inherently discriminates against litigants, like

Mrs. Murillo, who are not wealthy.

14/ It is doubtful that this fee would have been

74a

in the marital relationship was the only justi-

fication for the fee:

THE COURT: Can you explain a

rational basis, any rational basis,

for treating those two sets of

litigants differently in respect

to the $10 court reporter fee?

MR. SIMAN: Assuming the money

goes to the upkeep of the court

reporter?

THE COURT: It does not. It

goes to the general state treasury.

The court reporter ts the same

salary whether he sits in matri-

monial disputes or in an inter-

section accident dispute.

MR. SIMAN: I would just rest

on the fact that the state has an

additional interest in the matri-

monial area that it doesn't have --

THE COURT: Why does it mean

that the litigants have to pay

money in respect to a court re-

porter fee? You have explained to

me that took care of the filing

fee. You have explained to me

the filing fee is higher because

all matrimonial cases are in ef-

fect litigated because the judge

has to do something extraordinary.

He can't take the settlement. But

having already exacted that fee

once, for that reason, why is it

that if they actually go into

litigation, that they have to pay

$10 for the services of a court

75a

reporter who is furnished for free

in every other kind of case? What

is the rational basis for dis-

tinguishing between those people

who litigate depending on whether

they litigate in matrimonial ac-

tions versus any other kind of

actions....?

MR. SIMAN: I'm frankly, other

than the fact that it's the state's

interest, the way you phrased the

question, I'm at a loss to submit

something at the present time.

Transcript of 9/26/79, at 82-84.

Nothing has been presented to this

Court subsequently to justify the imposition

of the “stenographer's fee." This fee,

clearly a vestige from the days when every

divorce case required special scrutiny, serves

no present state purpose.

Accordingly, the Court holds that the

entire matrimonial fee system contained in N.J.

Ann. §2A:34-16 and N.J. Court Rule 4:79-2,

now abolished by legislative enactment, was

an unconstitutionally discriminatory scheme

which violated plaintiff's rights under the

equal protection clause of the Fourteenth

76a

Amendment. All monies contained in the in-

terest-bearing bank account created pursuant

to Court order and representing all of the

matrimonial fees illegally collected between

September 27, 1979, and August 31, 1980, will

be returned with interest to the individuals

who deposited them. Counsel will please sub-

mit an order in ten days.

s/ Herbert J. Stern

United States District Judge

DATED: February 20, 1981

(B.C. Civil Be. 792345)

Cet AFPRAL FROM THE UNITED STATES DISTRICT COURT

vos THE = perescr oF 4a JEnsET

Present: asene, tecemn, ond Sloviser, Cizmuss Judeee

JUDGMENT

Tin cone commen 10 be haart the eset from Unio Seen Disses Come et

and wes argued by counsel Gsteber 29, 1961. .

judqmens of the said Distriet Coutt encored March 31, 1981,

ba, and the same is hereby reverend ané the conse remanded for further

peocesdings consistent vith the epinicn of this Court. Cests .amed ageiast

attest:

june 17, 1962

Cestifies as « true qppy and iemued tn lice oGF

of « temas .

a the Thire Cirents

77a

demtaton of thie court and te aij the other svasiabie circuit judges of the cireuit ia reguiar

active carvien, aad «> fedge whe comsurred is the éeristen ‘ering ceted for “uhearing

and o majority of the ctreutt judges of the creuit in reguier sative carvies ast having

voted fer rynenrtng by the court i= Dama the petition fey rehearing is denied.

Jagees Gibbons, figginbothem emi Sloviter wuld heve grants

rehearing.

Dased: UL 1 * Set Cizeuit Jedee

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