Opinion
98-CV-0413E(F)
January 14, 2002
MEMORANDUM and ORDER
Plaintiffs commenced this action under 42 U.S.C. § 1983 by Complaint dated July 1, 1998 alleging that they had been deprived of their fundamental right to contract and of their property rights without due process of law. Presently before this Court are cross motions for summary judgment. For the reasons which follow, defendants' motion for summary judgment will be granted on the grounds that plaintiffs lack standing and, accordingly, plaintiffs' motion for summary judgment will be denied.
The plaintiffs are court reporters who operate as dual stenographers — i.e., (1) as employees of the courts during normal established working hours and (2) as independent contractors preparing private litigant transcripts on their own personal time. Section 108 of Title 22 of New York's Code of Rules and Regulations ("NYCRR") which governs the format of transcripts of court proceedings had provided, since its promulgation in 1984, that — unless otherwise agreed by a court reporter and a party seeking a transcript — "[f]or furnishing a transcript of court proceedings, or some portion thereof, a court reporter shall be paid at a rate of $1.375 per page." 22 NYCRR § 108.2(b); see also section 8002 of New York's Civil Practice Law and Rules ("CPLR") ("Unless otherwise provided by law, a stenographer is entitled *** to the fee set forth in the rules promulgated by the chief administrator of the courts").
On December 29, 1997 the Chief Administrative Judge of the Courts, defendant Lippman, issued an Administrative Order (the "Order") that amended said Part 108. Pls' Statement of Material Facts ("Pls' Statement") at ¶ 24. The amendment took effect February 1, 1998. Id. at ¶ 28. The Order was not the product of collective bargaining with union officials from the Civil Service Employees Association and no court reporters were consulted before the Order issued. Alweis Aff. at ¶ 6. The challenged amendments left intact the $1.375 — per-page so-called "default rate" but added the following language to Part 108:
"Where a court reporter and private party otherwise enter into an agreement pursuant to section 8002 of the CPLR for the furnishing of a transcript, the following maximum rates should be used a guidelines" "Expedited copy — $4.40 per page "Daily Copy — $5.50 per page "Expedited copy means production of the transcript within seven calendar days." 22 NYCRR § 108.2(b)(2).
Such amendment added the following:
"Each court reporter who furnishes a transcript of a court proceeding shall, at the time the transcript is requested, enter into a written agreement for its production with the person or party requesting the transcript. The agreement shall be made on a form prescribed by the Chief Administrator of the Courts and shall set forth the rate per page, the estimated number of pages, and the date by which such transcript shall be produced.
"Each court reporter who enters into such written agreement shall file a copy of that agreement in the office of the appropriate administrative judge, or his or her designee, no later than seven days after entering into the agreement." Id. § 108.4(a, b).
This Court Reporter Minute Agreement Form (the "Form") includes a section advising litigants of the suggested per-page rate to be charged for expedited or daily copies and transcripts and such are referred to as the rate maximums on the Form. Alweis Aff. at ¶ 18. The Form states: "[U]nless otherwise agreed, a court reporter shall be paid at a rate of $1.375 for furnishing a transcript." Ibid. The Form also requires court reporters to commit to a fixed delivery date for transcripts, which they had not been required to do prior to February 1, 1998. Pls' Statement at ¶¶ 35-36. In addition, court reporters now must file these completed forms with the Unified Court System ("UCS") within seven days. Id. at ¶ 38. Court reporters who did not comply were subject to disciplinary action by the UCS. Id. at ¶ 40.
There is an issue as to whether or not compliance with these forms was intended to be mandatory. Plaintiffs bring to this Court's attention a memorandum issued by UCS Deputy Chief Administrative Judge for Courts Outside New York City, Joseph J. Traficanti, dated March 30, 1998 in which he stated "that compliance with the language of the form `is not optional' and that willful noncompliance with the Rules would be considered insubordination `and dealt with accordingly'" — Pls' Statement at ¶ 43 — and a press release by Judge Lippman in which he states "that the Administrative Board of the Courts, composed of Chief Judge Judith S. Kaye and the four presiding Justices of the State's Appellate Divisions, has approved new guidelines for uniform rates to be charged by court reporters for expedited preparation of court records" — Id. at ¶ 45 — for the proposition that the Form was mandatory. However, whether such was in fact the case, as noted infra, the record shows that the Form requirement was routinely flaunted by plaintiffs without disciplinary action being taken. Therefore this Court deems use of the Form to be optional.
The effect which the Order and the Form requirement had on each plaintiff can be summarized as follows:
Aaron Alweis was able to recall only one instance in which his bargaining position was compromised by the amendment, although he claims to have heard of instances in which others were affected. Alweis Dep. at 62-66. However, Alweis admitted that this person might have been entitled to the lower rate by the regulations before they were amended. Id. at 66-67. Donald Lynskey was approached by a litigant who inquired about the lower rate; however, Lynskey never indicated that such lower rate was demanded or even agreed to. Lynskey Dep. at 17-18. He later goes on to state that there has never been an instance where he was not able to negotiate the rate he wanted because of the Form which had to be filled out. Id. at 39. David Mayo gives the Form to anyone who requests a transcript but only twenty percent actually complete it and he does nothing to seek compliance from those who do not. Mayo Dep. at 20. He has admitted that his right to enter into private agreements has not been interfered with. Ibid. Since the promulgation of the Order he has been able to set the rates for all transcripts he has sold. Id. at 24. Gloria Brown was able to recall an instance where another court reporter had been forced by a litigant to produce transcripts at the lower rate, but the only impairment to her rights which she could recall was that she was sometimes forced to track down an attorney at their office in order to get them to sign the agreement. Brown Dep. at 19-22. Marcia Langer chooses to ignore the Form. Rains Dep. at 34.
This was the default rate which could have been sought anyway.
Langer had her surname changed to Rains between the filing of the Complaint and her deposition.
Federal courts are not to rule on issues of Constitutional law if the case can be decided on other grounds. Communist Party v. Control Board, 367 U.S. 1, 71-72 (1961); Ashwander v. TVA, 297 U.S. 288, 346 (1936) (Brandeis, J., concurring). Constitutional standing "is the threshold question in every federal case, determining the power of the court to entertain the suit." Warth v. Seldin, 422 U.S. 490, 498 (1975). "In order to satisfy Art. III, the plaintiff must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone, Realtors v. Villiage of Bellwood, 441 U.S. 91, 99 (1979). This Court holds that plaintiffs have not met the standing requirement.
Plaintiffs argue that they do have standing because, under the Order and its Form requirement, they have suffered both an actual and an imminent injury. Specifically they claim that Judge Lippman's Order deprived them of their right to negotiate freely with private litigants for the production of transcripts. In support of their argument they cite to Clinton v. City of New York, 524 U.S. 417 (1998), wherein Article III standing was found for municipalities who alleged injuries as a result of then President Clinton's exercise of his right, pursuant to the Line Item Veto Act, to cancel legislatively enacted provisions. Id. at 428-436. This Court finds such argument unpersuasive. Plaintiffs have not alleged that the Office of Court Administration ("OCA") has ever exercised its rights to discipline attorneys for not complying with the Order; they contend only that the Order remains outstanding and that the OCA may one day chose to enforce it.
Just because a regulation has not yet been enforced does not necessarily mean that a party who could be affected by its enforcement is without standing to challenge it. Standing will be found where the state has not disavowed any intention of enforcing the law. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 302 (1979). See also Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383 (1988). If, however, the law has not been enforced in the face of common and notorious violations, standing will be lacking. Poe v. Ulman, 367 U.S. 497, 502 (1961); San Francisco Democratic Central Committee v. Eu, 826 F.2d 814, 822 (9th Cir 1987). As plaintiffs admit, the OCA has not disciplined a single reporter under the new guidelines and plaintiffs themselves routinely flaunt the guidelines and the requirement for the form; yet they have never been disciplined. Plaintiffs can point to only one instance where one of them agreed to perform the work at the $1.375 price but this plaintiff admitted that the particular litigant might have been entitled to this price notwithstanding the Order. Plaintiffs also refer to instances where they may have heard of other reporters who gave litigants the default rate but they do not allege that the reason why this rate may have been given was because of the Order.
Plaintiffs try to get around this by arguing that, in the absence of this lawsuit, the OCA would enforce such requirement and the terms of the Order. Pls' Reply at 10. This Court is unconvinced. The Order became effective on February 1, 1998 and this lawsuit was filed July 1, 1998. No action was taken during this five-month period and plaintiffs have pointed to nothing to indicate that anything would have been done.
Plaintiffs' gripe with the Order is basically that the Form requirement forces reporters to give such forms to litigants which inform them of the default rates which were already in effect. The only right this takes away from the reporters is the right to negotiate with litigants who are oblivious to their right to demand a lower price if they don't care about the timing of delivery. It thereby brings more light into the bargaining process and removes the disadvantages which go hand-in-hand with lack of information. Plaintiffs' characterization of this as a loss of a bargaining chip so as to bring it within the ambit of Clinton at 432-433 is flawed. Pls' Reply Mem. of Law in Opp'n to Defs' Mot. for Summ. J. at 1-2. Therefore and because plaintiffs have not shown an injury as a result of the Order and the Form requirement, defendants' motion for summary judgment dismissing the case for lack of standing will be granted and plaintiffs' motion for summary judgment will be denied.
Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted, that plaintiffs' motion for summary judgment is denied and that this case be closed in this Court.