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Memorandum of Support

Empire Justice Memo of Support: Provide that class action status should not be denied

A.2334 (Rivera)

This bill would amend the CPLR to provide that class action status should not be denied or withheld in a case “solely because the case involves governmental operations.”   

The bill would:

  • Conform the law to the principal that all litigants stand equally before the courts;
  • Allow redress to all citizens who are harmed when government agencies act illegally; and
  • Reduce litigation expenses and the filing of multiple lawsuits challenging the same illegal conduct.

Under current case law, Jones v. Berman, 37 N.Y.2d 42, 57 (1975), state courts often[1] refuse to certify class actions against government officials saying that in actions against government officials the doctrine of stare decisis provides protection for other similarly situated individuals.  The doctrine of stare decisis, is a doctrine of precedent that requires courts to follow prior decisions in subsequently decided cases.  Stare decisis only provides protection to those who are harmed by illegal government actions after the date of the final judgment in the case.  In a case which is appealed this will be several years after the illegal policy begins. 

One of the most cherished principals of our law is that all litigants, rich and poor, government and private citizen, stand equally before the courts.  The government operations rule places governments in a preferred position and citizens in an inferior position.  The U.S. Supreme Court rejected an attempt to establish a similar rule for Federal class actions.  Califano v. Yamasaki, 442 U.S. 682 (1979).

The current rule allows government agencies to promulgate illegal policies without making those harmed by those policies whole.  Only after the policy is found to be illegal, usually after years of litigation and appeals, does the government have to conform its conduct to the law.  The governmental unit that adopted the illegal policy only has to provide retroactive redress to the named plaintiffs in the law suit.  All others who were harmed, often thousands, only have their benefits calculated prospectively in accord with law, usually beginning several months after the final judgment is entered in the case due to the need to reprogram computers.  This means they are never made whole as redress for the illegal conduct, and the governmental unit that acted illegally benefits financially from its illegal conduct.

The current rule unnecessarily drives up the cost of litigation.  In many of the suits we handle against government policies no facts are real dispute.  The parties should be able to stipulate to the elements of class certification but the government operations doctrine almost always forces the filing of a class certification motion.  If class certification is denied it forces multiple motions for intervention or the filing of other suits to protect full relief for individuals harmed by the illegal policy who are able to obtain counsel.  

The bill would remedy these problems by providing that class action status would not be denied solely because the action involves governmental operations.  It does not mandate class certification but rather simply requires the courts to use the same factors for all litigants.

Empire Justice Center strongly supports this legislation. 

End Note

[1]   The refusal to certify class actions based on governmental operations is applied in some cases and not applied in others that appear identical in terms of types of litigants and whether stare decisis would actually provide full relief to the members of the putative class.  Compare Doe v. Doar, 26 A.D.3d 787 (4th Dep’t ), (order granting class action and declaring OTDA budgeting policy of cash assistance illegal affirmed), with Matter of Graves v Doar, Index No. 10218/06, 2007 NY Slip Op 33147(U) (Sup. Ct. Nassau Co. October 1, 2007) [available at:] (which denied class certification in a decision finding an OTDA Food Stamp budgeting policy was illegal).

This memo was prepared by:

Bryan D. Hetherington

Empire Justice Center
Telesca Center for Justice
One West Main Street, Suite 200
Rochester, NY  14614 

(585) 454-4060
(585) 454-2518