Donna M. MURILLO v.

W. Lewis BAMBRICK, Clerk of the Superior Court of New Jersey, Appellant.

No. 81-1786.

United States Court of Appeals, Third Circuit.

Argued Oct. 29, 1981. Decided June 17, 1982.

James R. Zazzali, Atty. Gen. of N. J., Bertram P. Goltz, Jr., Deputy Atty. Gen. (argued), Erminie L. Conley, Asst. Atty. Gen., Trenton, N. J., for appellant. Arthur Uscher (argued), Joseph Russo, Hackensack, N. J., for appellee.

Before ADAMS, ROSENN and SLOVITER, Circuit Judges.

OPINION OF THE COURT ADAMS, Circuit Judge.

In this appeal, we are asked to review an order of the district court holding unconstitutional a New Jersey statute and court rule, both now repealed, that assessed higher filing fees in matrimonial actions than in other civil cases. Unlike the district court, we conclude that the Constitution of the United States was not violated by the State's imposition of a "trial fee" upon individuals seeking divorces, but not upon other civil litigants. Whatever the wisdom of New Jersey's legislation, in our view the classification at issue here neither contravened a fundamental interest, so as to trigger heightened scrutiny, nor constituted an act devoid of rationality, so as to fall short of the minimal requirements for orderly government. Accordingly/we reverse.

I On June 18, 1979, plaintiff Donna Murillo, a resident of New Jersey, filed for a divorce in New Jersey Superior Court and paid the sixty-dollar filing fee required of all complainants in that court. Because hers was a matrimonial action, N.J.S.A. 2A:34-16 and N.J. Court Rule 4:79-2 applied.^{Footnote 1} According to these provisions, divorce actions commenced by litigants such as Murillo, even if uncontested, were not listed for trial until an additional fifty-dollar fee, applicable only to matrimonial actions, had been paid. If such an action were contested, an additional ten-dollar payment, designed to cover the cost of stenographic services, was necessary. Murillo, on behalf of herself and all others similarly situated, filed this suit in the district court, seeking a declaration that the special matrimonial litigation fee imposed by New Jersey violated the equal protection clause of the fourteenth amendment.

After certifying the case as a class action, the district court, at the suggestion of the State, stayed further proceedings in order to provide the New Jersey Legislature with an opportunity to review the matrimonial fee arrangement. So that the resulting delay would not prejudice the plaintiffs, however, the court ordered defendant W. Lewis Bambrick, Clerk of the Superior Court of New Jersey, to deposit all such fees collected after September 6, 1979, in a separate interest-bearing account. On August 1, 1980, the Legislature repealed N.J.S.A. 2A:34-16, effective September 1,1980,^{Footnote 2} and shortly thereafter, the State's Supreme Court deleted N.J. Court Rule 4:79-2. The Legislature's repeal of the matrimonial fee was prospective only, however: no provision was made for the return of the fees held in escrow pursuant to the district court's order. It is this fund, consisting of fees collected after the institution of this action and currently amounting to approximately $1.5 million, that is the subject of the present dispute.

Following the Legislature's action, the district court reopened the case and, after a two-day trial, concluded that the divorce trial-fee arrangement violated the equal protection clause. Murillo v. Bambrick, 508 F.Supp. 830 (D.N.J.1981). After determining that the applicable standard for evaluating the legislation was the rational basis test, the district judge held that the statute

was "not a rational means to further any articulated state interest." Id. at 833. Specifically, the court found that the first justification urged by the State, that "the additional fees helped pay for the additional court resources required for matrimonial cases," was empirically incorrect. Id. at 835-36. As to the State's second proffered justification, that the divorce fees "served the State's legitimate interest in 'not encouraging' divorces," the court found that, at least since New Jersey's adoption of a "no-fault" divorce system in 1971, "the purpose to discourage divorces has not existed." Id. at 835, 838. The district court therefore ordered that the fees held in escrow by defendant Bambrick be refunded with interest to the appropriate individuals, but stayed that directive pending the State's appeal.

Although the underlying dispute in this appeal may appear to involve a narrow and relatively unimportant statute, since repealed, we believe that the district court's decision raises important questions about the nature of judicial review under the equal protection clause. It is appropriate, therefore, to commence our analysis with a consideration of general principles. In large part, legislative acts classify; by their very nature, they draw distinctions between groups of individuals and among various forms of human endeavor.^{Footnote 3} A legislative act, therefore, cannot be deemed invalid merely because it treats different persons or different activities differently. Instead, some general standard as to the permissibility of legislative distinctions must be identified and applied, lest a considerable portion of our laws be disapproved in a relentlessly logical, but ultimately selfdefeating, pursuit of abstract equality.

The fourteenth amendment, in providing that no state shall "deny to any person 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, 97 S.Ct. 1459, 1472, 52 L.Ed.2d 31 (1977) (Rehnquist, J., dissenting). Rather, "recognition of the inevitability and indeed the justice of some line-drawing [has made] the central task of equal protection theory one of determining which lines or distinctions are permissible." Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107, 109 (1976). Toward this end, in the course of several decades of constitutional litigation, the equal protection standard has come to be thought of as primarily two-tiered: enactments that discriminate against suspect classes or trench upon fundamental rights are disfavored, and will be tolerated only if necessary to achieve a compelling governmental interest, while statutes in the economic, social welfare, or regulatory fields are subjected to far lesser scrutiny, and will be upheld unless not rationally related to legitimate public ends. ^{Footnote 4}

With respect to a statute challenged on equal protection grounds, therefore, a reviewing court is obligated initially to determine the appropriate level of judicial review, and then carefully to consider whether a sufficient showing has been made under that test so as to override the presumption of constitutionality ordinarily accorded

to legislative pronouncements. The purpose of such an analysis is not to replace legislative judgments with judicial views of effective or salutary public policy; rather, it is to ensure that a legislative majority adheres to its constitutional obligation to govern its citizens fairly.

Given this backdrop, we first consider the matter of the appropriate standard of equal protection review applicable to the controversy before us today. The district court concluded that, "in this case, no suspect class or fundamental interest is present," and that therefore the rational basis test was applicable. 508 F.Supp. at 833. ^{Footnote 5}

Inasmuch as the Supreme Court thus far has declined to deem classifications based on factors other than race and national origin'and, arguably, sex, alienage, and illegitimacy, see note 4 supra'as inherently "suspect," we agree with the holding of the district court that the interests of no suspect class are involved here. Whether or not New Jersey's legislation trespasses upon a "fundamental right" is a more difficult question, however, and requires a more extended discussion.

The fundamental rights component of the equal protection clause can be traced to Skinner v. Oklahoma,  316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), in which the Supreme Court invalidated a statute providing for compulsory sterilization of "habitual" criminals, on the ground that such a rule impermissibly interfered with "one of the basic civil rights of man," id. at 541, 62 S.Ct. at 1113. Over the years, the Court has applied the fundamental interests doctrine to strike down various legislative "infringements" involving a number of "rights," such as voting, interstate travel, and access to the criminal appellate process. ^{Footnote 6}

Most recently, in Zablocki v. Rcdhail,  434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), a majority of the Justices, relying on a line of cases dating back to the landmark anti-miscegenation case, Loving v. Virginia,  388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), declared that "the right to marry is of fundamental importance," and held that any "statutory classification [that] significantly interferes with the exercise of [this] right ... cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." 434 U.S. at 383, 388, 98 S.Ct. at 679, 682.

No decision of the Supreme Court stands squarely for the proposition that state restrictions on divorce must be evaluated under the same exacting standards as restrictions on, for example, the right to travel, the right to vote, or the right to

riteasfi81F.2d898 O982) marry. ^{Footnote 7}

Drawing upon Zablocki and its predecessors, it might be argued that the relevant Supreme Court cases recognize that, for purposes of equal protection analysis, some sort of heightened scrutiny is appropriate with respect to legislation impinging on the availability of divorce. ^{Footnote 8}

Whatever the merits of this argument, ^{Footnote 9} should be recognized that any such "fundamental right" to secure a divorce'whether a procedural "right" of access to a judicial forum to sue for divorce or some substantive "right" to divorce per se'is not at issue in this case. Quite simply, New Jersey's statute did not "significantly," "directly," or "substantially" infringe upon the right of individuals to obtain dissolutions of their marriages (quoting Zablocki, 434 U.S. at 386-87, 98 S.Ct. at 681). By. imposing a fifty-dollar filing fee, New Jersey obviously did not prohibit its citizens from attempting to obtain a divorce in accordance with the State's standards and requirements. Nor did the fee constitute an extra obstacle to it divorce, erected by the State, in addition to those 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 determi-

nation did not constitute an infringement on any "right" to sue for or to obtain a divorce. Instead, it reflected an apparent judgment that the costs of exercising that right, like the costs of exercising many constitutionally protected rights, would not be borne entirely by the State merely because a constitutional right was alleged to be present. ^{Footnote 10}

To challenge such an arrangement'that is, to contend that the imposition of a fifty-dollar trial fee transgressed per se an individual's right to seek a divorce'is to assert, in effect, that a constitutional right to a divorce would necessarily entail a concomitant constitutional obligation on the part of a state to subsidize the full costs of providing applicants with divorces. The argument, reduced to its essence, amounts to an assertion that individuals have not only a fundamental right to divorce, but a fundamental right to a free divorce despite the very real costs to the State of providing that service. Even if we assume arguendo that there exists a fundamental right to divorce, we do not believe, and we are aware of no case suggesting, that a state is constitutionally required not only to grant divorces to its citizens upon request, but to do so without collecting from those persons a portion of the expenses realized in making available to them such a service. ^{Footnote 11}

An additional consideration might be present if it were demonstrated that the fee arrangement discouraged indigents from obtaining a divorce by imposing a financial requirement that they would find impossible to satisfy. Such is not the case here: the statute in question contained an explicit exemption for persons unable to afford the fee. ^{Footnote 12}

Moreover, nothing in the record indicates that any member of the class represented by Murillo was prevented from becoming divorced or remarried by reason of the State's divorce-fee system. To be sure, even non-indigent individuals may have found that the divorce fee required them to forego other uses to which they would have put their limited financial resources. ^{Footnote 13}

But this hardship, although unfortunate, falls short of establishing that such persons have been precluded from obtaining divorces. It does show that the choice to 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 essence would have to be the right to a divorce that is free to the litigant. Furthermore, if the burden of the fifty-dollar

divorce fee were deemed an encroachment on a non-indigent's right to obtain a divorce, there is no reason why a similar objection could not be registered against the seventy-five-dollar filing fee currently required of all litigants, including matrimonial litigants, who seek resolution of their disputes in New Jersey's Superior Courts. Indeed, it is difficult to understand why the fifty-dollar fee would constitute any more of a "significant," "substantial," or "direct" encumbrance on an individual's "right" to a divorce than does the very fact that New Jersey requires every party to a divorce to submit to public, sometimes lengthy, and occasionally burdensome legal proceedings in the first place.

Finally, it might be maintained that New Jersey trespassed upon its citizens' fundamental right to divorce'assuming, once again, that such a right exists'by imposing the supplemental trial fee on matrimonial litigants, but not on other civil litigants. This contention suffers from a logical flaw, however. A divorce action and, for example, a tort or contract action, obviously are not interchangeable alternatives. The higher cost for a divorce, as opposed to other civil actions, would hardly encourage those seeking a divorce to abandon their efforts in favor of other, less expensive forms of litigation. The level of the fee charged for, say, a tort action, therefore, is irrelevant to the presence of any burden on the right to obtain a divorce. ^{Footnote 14}

Rather, the dispositive question' having nothing to do with a state's overall posture in regard to the imposition of filing fees'is whether a fundamental right is infringed when a state charges an individual at least some amount of money in order to defray the costs of terminating his or her marital relationship. And this question we have answered in the negative. Accordingly, we hold that the statute under attack in this proceeding need not be evaluated under the heightened standard appropriate for legislation that infringes on fundamental constitutional rights. We proceed, therefore, as did the district court, to assess the constitutionality of the legislation under the "rational relation" standard of equal protection review.

B Having determined that New Jersey's statute poses no interference with a fundamental right sufficient to invoke rigorous scrutiny, the rational basis test becomes, in our view, the appropriate standard by which to measure the legislation for purposes of plaintiffs' equal protection challenge. See Schweiker v. Wilson,  450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981). The rational basis test simply requires "that legislation classify the persons it affects in a manner rationally related to legitimate governmental objectives." Id. at 230, 101 S.Ct. at 1080. ^{Footnote 15}

According to the

district court, the supplemental trial fee previously imposed by New Jersey on divorce litigants does not pass constitutional muster even under the rational relation standard of review. We disagree; we do not believe that "the varying treatment of different groups or persons" challenged here "is so unrelated to the achievement of any combination of legitimate purposes that [a court] can only conclude that the legislature's actions were irrational," Vance v. Bradley,  440 U.S. 93, 97, 99 S.Ct. 939, 942, 59 L.Ed.2d 171 (1979). The first task of a court in evaluating an equal protection 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 "equal protection of the laws"'were a state to impose differing burdens upon individuals who are, in all relevant respects, indistinguishable. ^{Footnote 16}

Plaintiffs are here challenging a New Jersey law that assessed a fifty-dollar fee against all non-indigent litigants in divorce proceedings, but not against litigants in other civil proceedings, such as tort, contract, or property actions. We must determine, therefore, whether or not persons who brought divorce actions in New Jersey were similarly situated to persons who pressed other civil complaints in the State's courts. Or, to phrase the same question somewhat differently, we must decide whether or not the New Jersey Legislature rationally could have chosen, for example, to impose higher financial obligations upon divorce litigants than on contract litigants.

After reviewing the record in this case, we are persuaded that the New Jersey Legislature did not proceed irrationally, both when it instituted the divorce fee arrangement, and when it retained that arrangement over the course of a number of decades. In light of the evidence available to it, we believe it would not have been unreasonable for the Legislature to have been of the opinion that the State's divorce system imposed financial as well as non-financial demands upon the judiciary, thereby justifying additional monetary support from the users of that system. In this connection, it is instructive to consider the origins of the supplemental fee and the place of that fee in the overall framework of New Jersey's divorce-related legislation.

For nearly the entire first half of this century, all divorce actions filed in New Jersey were referred for initial review to special masters. These masters were