Senate Bill S5394

                                 BILL NUMBER:  S5394

 TITLE OF BILL :
An act to amend the civil practice law and rules, in relation to
certification of class actions in cases involving governmental
operations


 PURPOSE OR GENERAL IDEA OF BILL :
Section 902 of the Civil Practice Law and Rules is amended to provide
that a court may not deny or withhold class certification solely
because the action involves governmental operations. This bill will
not require the court to certify a class.  More importantly, this bill
will specify once the requirements of Article 9 are satisfied,
certification cannot be denied solely because the case involves
governmental operations.

 SUMMARY OF PROVISIONS :
The bill amends Civil Practice Law and Rules, Section 902(5) to
prevent the withholding of "class certification" by a court merely
because an action may involve governmental operations.

 JUSTIFICATION :
Legal Services for New York City, a not-for-profit organization that
provides legal service for low-income people, supports this bill.
Courts generally have been unwilling to certify a class when
              

governmental operations are involved. The courts reason that a class
action is not superior to other available methods (and thus fails to
satisfy the requirement of § 901 (a) (5)) because the doctrine of
STARE DECISIS provides adequate protection to putative class members.
JONES V. BERMAN. 37 N.Y. 2d 42,57 (1975). A judgement in favor of the
plaintiff may protect SUBSEQUENT or FUTURE litigants under the
doctrine of ST ARE DECISIS.ct.  However, it will have no effect
whatsoever on persons who already have been and will be adversely
affected by an agency's policies from the date the action was filed
until a final determination. SEE TINDELL V.  KOCH. 154 A.D. 2nd
689,565 N.Y.S. 2nd 789, 792 (1st Dep't 1991).  STARE DECISIS applies
only after the final determination has been reached in an action that
has not been certified as a class action.  Potential class members
already adversely affected by the agency's policy while the lawsuit is
still pending would obtain no relief at all, unless they commenced
individual actions before a final determination in order to preserve
their rights to the relief sought in a similar proceeding.

SEE ALSO LAMBOY V. GROSS. 129 Misc. 2nd 564, 493 N.Y.S. 2nd 709, AFF'D
126 A.D.  2nd 265, 513 N.Y.S. 2nd 393 (1 st Dep't 1987). Thus, class
certification is superior to this doctrine of STARE DECISIS to insure
relief to members of a proposed class who have already been or will be
affected by a governmental agency's policy before a final decision is
issued in a lawsuit.

Moreover, it is often the case that persons who are similarly situated
to the plaintiff in a lawsuit already filed are individuals who are
poor, elderly, or disabled, who would be hard pressed because of their
physical and financial condition to commence individual actions. Class
action is the best method to protect these potential class members.
Finally, even if poor, elderly, or disabled persons succeed in
obtaining free legal representation for their individual claims, the
multiplicity of lawsuits seeking the identical relief can give rise to
inconsistent rulings by various state courts. This results, in
unnecessary expenditure of energy and judicial resources, forcing the
legal service bar, the Attorney General's office and the courts
repeatedly to litigate and decide the same issues of law.

Despite the court's assumption that governmental agencies follow the
rules of law laid down by court decisions, potential class members
continually confront the reality that successes in non-class actions
are applied only to the individually named plaintiffs rather than to
all those similarly situated.

In sum, § 902 of the CPLR should be amended to specify that once the
requirements of the class action provisions of Article 9 are
satisfied, certification cannot be denied on the grounds that because
the case involves a governmental agency, the court's decision will be
applied to all individuals similarly situated.

 LEGISLATIVE HISTORY :
1995-1996 - A.4933 Held in Codes
1997-1998 - A.3289 Passed Assembly
1999-2000 - A.3299 Passed Assembly
2001-2002 - A.7700 Passed Assembly
2003-2004 - A.5942 Passed Assembly
2005-2006 - A.6929 Passed Assembly
2007-2008 - A.4131 Passed Assembly

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :
None.

 EFFECTIVE DATE :
This bill will take effect immediately upon enactment.