01-2735

In the United States Court of Appeals

For the Third Circuit

_______________

MICHAEL ANTHONY, individually and on behalf of all persons similar situated; anne pasqua; ray tolbert

v.

GERALD COUNSEL, HON,; LEE F. FORRESTER, HON., IN THEIR OFFICIAL CAPACITY AS JUDGES OF THE SUPERIOR COURT, AND ON BEHALF OF ALL SUPERIOR COURT JUDGES OF THE STATE OF NEW JERSEY; DEBORAH T. PORITZ, HON., IN HER OFFICIAL CAPACITY AS CHIEF JUSTICE OF THE SUPREME COURT OF NEW JERSEY, AND ON BEHALF OF ALL SUPERIOR COURT JUDGES OF THE STATE OF NEW JERSEY; RICHARD J. WILLIAMS, HON., IN HIS OFFICIAL CAPACITY AS ADMINISTRATIVE DIRECTOR OF THE COURTS OF THE STATE OF NEW JERSEY, AND ON BEHALF OF ALL SUPERIOR COURT JUDGES OF THE STATE OF NEW JERSEY

Anne Pasqua, Ray Tolbert and Michael Anthony, individually and on behalf of all persons similarly situated,

Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

BRIEF AND APPENDIX FOR APPELLANTS

David Perry Davis, Esq.

Attorney for Appellants

TABLE OF CONTENTS

COVER....................................................... i

TABLE OF CONTENTS.......................................... ii

TABLE OF AUTHORITIES ..................................... iii

INDEX TO APPENDIX.......................................... iv

CORPORATE DISCLOSURE STATEMENT.............................. 1

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

(A) BASIS FOR JURISDICTION IN THE DISTRICT COURT.......... 1

(B) BASIS FOR JURISDICTION IN THE COURT OF APPEALS........ 1

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW................ 2

STATEMENT OF WHERE ISSUE WAS RAISED AND RULED UPON.......... 3

STATEMENT OF THE STANDARD OR SCOPE OF REVIEW................ 3

STATEMENT OF RELATED CASES AND PROCEEDINGS.................. 3

STATEMENT OF THE CASE....................................... 3

(A) NATURE OF THE CASE.................................. 3

(B) COURSE OF PROCEEDINGS............................... 4

(C) DISPOSITION IN THE COURT BELOW...................... 4

STATEMENT OF FACTS.......................................... 5

SUMMARY OF ARGUMENT......................................... 6

ARGUMENT . . . . .......................................... 9

I. THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS' APPLICATION FOR ABSTENTION PURSUANT TO YOUNGER V. HARRIS................ 9

A. A potential court procedure is not the equivalent of a pending proceeding against plaintiffs. Without a pending proceeding, no further analysis of Younger abstention was appropriate 9

B. Defendants cannot assert any state interest more important than compliance with the United States Constitution.... 17

C. The Domestic Relations Exception does not apply 18

II. THE DISTRICT COURT ERRED IN FAILING TO CERTIFY THE PLAINTIFF AND DEFENDANT CLASSES PURSUANT TO FED.R.CIV.P. RULE 23(A) AND 23(B)(2) 19

A. As to Defendant class......................... 19

B. As to plaintiff class......................... 21

III. THE DISTRICT COURT ERRED IN FAILING TO ISSUE A PRELIMINARY INJUNCTION AGAINST THE UNCONSTITUTIONAL PRACTICES OF DEFENDANT CLASS 25

CONCLUSION . . . ......................................... 30

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION

U.S. Const. Art. 6 § 2................................... 19

U.S. Const. Amend. XIV................................... 26

Federal Statutes

28 U.S.C. § 1331.......................................... 1

28 U.S.C. § 1291.......................................... 1

28 U.S.C. § 1343 (3) ..................................... 1

28 U.S.C. § 1343 (4) ..................................... 1

Civil Rights Act of 1871

42 U.S.C. § 1983................................ passim

Federal Cases

Anastasi v. Anastasi,

532 F. Supp. 720, 723 (D.N.J. 1982)................. 17

Anderson v. Davila,

125 F.3d 148, 159 (3d Cir.1997).................... 24

Ankenbrandt v. Richards,

504 U.S. 689, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992) 18

Barber v. Barber,

21 How. 582, 16 L.Ed. 226 (1859).................. 18

Cerro Metal Products v. Marshall,

620 F.2d 964 (3d. Cir. 1980)....................... 25

City of Los Angeles v. Lyons,

461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)

........................................... 7, 16, 17

Colorado River Water Conservation Dist. v. United States,

424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).. 19

Continental Group, Inc. v. Amoco Chemicals Corp.,

614 F.2d 351 (3d Cir. 1980)........................ 25

Doe v. Charleston Area Medical Center, Inc.,

529 F.2d 638 (W.Va. 1975)........................... 23

Huffman v. Pursue, Ltd.,

420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).. 9

In re Gault,

387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)... 26

Johnson v. Zurz,

596 F.Supp. 39 (N.D.Ohio 1984)..................... 26

Judice v. Vail,

430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). 10

Lake v. Speziale,

580 F.Supp. 1318 (D.Conn. 1984) 11, 12, 14, 18, 21, 26

Lake Carriers' Ass'n v. MacMullan,

406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). 10

Lassiter v. Dept of Social Services,

452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) 26, 27

Patsy v. Board of Regents,

457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) 16

Maldonado v. Lucca,

157 F.3d 179 (3d Cir.1998)......................... 25

Marks v. Stinson,

19 F.3d 873, 883 (3d Cir. 1994)..................... 16

Mastin v. Fellerhoff,

526 F.Supp. 969 (S.D.Ohio 1981).... 14, 15, 18, 21, 26

McKinstry v. Genesee County Circuit Judges,

669 F.Supp. 801 (E.D.Mich.1987)........ 14, 18, 26, 30

Meyer v. Frank,

550 F.2d 726 (2d Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977)..................... 16

Mitchum v. Foster,

407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). 19

Moorish Science Temple of America, Inc. v. Smith,

693 F.2d 987 (2d Cir.1982)....................... 7, 16

New Jersey Hosp. Ass'n v. Waldman,

73 F.3d 509 (3d Cir.1995).......................... 25

Pulliam v. Allen,

466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984) 25

Ridgeway v. Baker,

720 F.2d 1409 (5th Cir. 1983).............. 14, 18, 26

Scott v. Illinois,

440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). 26

Sevier v. Turner,

742 F.2d 262 (6th Cir.1984)................ 14, 18, 26

Snyder v. Altman,

444 F.Supp. 1269 (N.D.Cal.1978).................... 16

Solomon v. Solomon,

516 F.2d 1018 (1975)............................... 17

Steffel v. Thompson,

415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). 10

Strasen v. Strasen,

897 F.Supp. 1179, 1182 (E.D.Wis.1995)............... 18

Trainor v. Hernandez,

431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). 10

United State v. Lewis,

936 F.Supp. 1093, 1108 (D.R.I. 1996)................ 19

W.P. v. Poritz,

931 F.Supp. 1187 (D.N.J. 1996)..................... 23

Walker v. McLain,

768 F.2d 1181 (10th Cir.App. 1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986) 14, 18, 26

Weiss v. York Hospital,

745 F.2d 786 (3d Cir.), certiorari denied 105 S.Ct. 1777, 470 U.S. 1060, 84 L.Ed.2d 836 (1984).......... 23

Wooley v. Maynard,

430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977).. 10

Young v. Whitworth,

522 F.Supp. 759 (S.D.Ohio 1981)............. 14, 18, 26

Young v. Pierce,

544 F.Supp. 1010 (E.D.Tex. 1982).................... 23

Younger v. Harris,

401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) 2, 3, 4, 9

State statutes

Uniform Interstate Family Support Act,

N.J.S.A. 2A:4-30.65 et seq. ("UIFSA")........ 7, 12, 13

Revised Uniform Reciprocal Enforcement of Support Act

N.J.S.A. 2A:4‑30.24 ("RURESA")...................... 13

Uniform Reciprocal Enforcement of Family Support Act,

N.J.S. 2A:4‑30.1 et seq. (repealed) ("URESA")....... 13

Duties of Public Defender

16 P.S. § 9960.6.................................... 28

State Cases

Black v. Division of Child Support Enforcement,

686 A.2d 164 (Del. 1996), corrected, (Dec. 18, 1996) 27

Commissioner v. Farmer,

466 A.2d 677, 319 Pa.Super. 542 (App.Div. 1983).... 28

Commonwealth v. $9,847.00 U.S. CURRENCY,

161 Pa.Cmwlth. 548, 637 A.2d 736 (App.Div. 1994)... 28

Peace v. Peace,

325 N.J. Super. 122, 127 (Ch.Div. 1999)............. 8

Rittel v. Rittel,

335 Pa.Super. 550, 485 A.2d 30 (App. Div. 1984).... 27

Sharp v. Sharp,

336 N.J. Super. 492 (App.Div. 2001)................. 7

Teare v. Bromley,

332 N.J. Super. 381 (Ch.Div. 2000) ................. 7

Other Sources

New Jersey Lawyers Diary,

2000 Edition, (pages 883-892)....................... 20

CORPORATE DISCLOSURE STATEMENT

Pursuant to F.R.A.P. 28 and 3rd Cir. LAR 28.0, counsel for appellants certifies that there are no relevant corporate disclosure issues. This is an appeal from a District Court's decision to abstain pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), from hearing a class action civil rights matter regarding the appointment of counsel for indigent contemnors facing a loss of liberty. By definition, none of the indigent child support obligors who constitute the plaintiff class have any corporate holdings.

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

(A) BASIS FOR JURISDICTION IN THE DISTRICT COURT:

This is an action alleging that defendants, under color of "statute, ordinance, regulation, custom, or usage," have subjected plaintiffs to the deprivation of "rights, privileges, or immunities secured by the Constitution and laws." The District Court is vested with jurisdiction pursuant to 28 U.S.C. §1331, and 28 U.S.C. §1343(3) and (4), since this is an action arising under the Constitution and laws of the United States. The plaintiffs cause of action arises under 42 U.S.C. §1983 et seq.

(B) BASIS FOR JURISDICTION IN THE COURT OF APPEALS:

This court has jurisdiction under 28 U.S.C. § 1291 (1988) of the district court's grant of defendants' application for abstention. The appeal is from a final order or a final judgment that disposes of all claims with respect to all parties.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

1. Whether it was an abuse of discretion for the district court to hold that the mere possibility of future enforcement proceedings and the existence of an interstate child custody jurisdiction statute constituted a pending proceeding for purposes of a Younger abstention analysis.

2. Whether the Court erred in its denial of plaintiffs' application to certify the classes and for a Preliminary Injunction requiring defendants to comply with the undisputed mandate of the Due Process Clause of the Fourteenth Amendment to the United States Constitution that unrepresented indigent citizens cannot be compelled to attend a hearing where they face a loss of liberty without having counsel appointed to represent them.

STATEMENT OF WHERE ISSUE WAS RAISED AND RULED UPON

(1) 1. The issue of abstention was initially raised in defendants' reply brief (J.A. XXXX). As the issue was not raised in defendants' original motion to dismiss, plaintiffs filed a sur-reply brief (J.A. XXXX). The issue was also thoroughly explored during oral argument of the motion J.A. at XXXX. All issues on appeal were ruled on in the district court's March 9 and May 30 Orders.

STATEMENT OF THE STANDARD OR SCOPE OF REVIEW

On all issues on appeal, the trial court erred in formulating or applying legal precepts. Therefore, this court's review is plenary.

STATEMENT OF RELATED CASES AND PROCEEDINGS

Other than a series of applications for joinder and other relief by Barry Weinstein, a pro se litigant, plaintiffs are aware of no other case or proceeding that is in any way related, completed, pending or about to be presented before this Court or any other court or agency, state or federal.

STATEMENT OF THE CASE

(A) NATURE OF THE CASE

This is an appeal challenging the district court's decision to abstain pursuant to Younger v. Harris from hearing a case brought pursuant to 42 U.S.C. § 1983 et seq.

This Court is also asked to reverse the denial of plaintiff's application to certify the classes and its denial of a preliminary injunction.

(B) COURSE OF PROCEEDINGS

The matter under appeal was filed in May 2000 as a Complaint for declarative and injunctive relief pursuant to 42 U.S.C. §1983. J.A. 1-XX. The Complaint was amended on July 18, 2000. J.A. XXXX.

In August, 2000, defendants filed a motion to dismiss the complaint, raising only immunity issues (J.A. XXXX). On October 13, 2000, Plaintiffs filed a motion opposing this relief and cross-moved for certification of the proposed classes and seeking a preliminary injunction.

In their reply brief, defendants for the first time raised the abstention issue (J.A. XXXX). As this issue had not been raised in defendant's original motion to dismiss, plaintiffs filed a sur-reply addressing the abstention issue.

On November 16, 2000 the Honorable Garrett E. Brown, Jr., U.S.D.J. heard oral argument.

On March 9, 2001, the district court issued a decision denying defendants' motion to dismiss on immunity grounds, but granting their application for abstention pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (J.A. XXX). A motion to reconsider this decision was filed on March 19 (J.A. XXX) and was denied on May 30 (J.A. XXX). The notice of appeal was timely filed on June 28.

(C) DISPOSITION IN THE COURT BELOW

On March 9, 2001, the Honorable Garrett E. Brown, Jr. granted defendants' application for abstention (J.A. XXXX). On May 30, 2001, the Court denied plaintiffs' application for reconsideration (J.A. XXXX).

STATEMENT OF FACTS

In early 2000, each member of the plaintiff class was compelled to attend a hearing in state court as a result of her or his inability to comply with orders requiring the payment of child support. Plaintiffs were unrepresented at said hearings because they could not afford counsel. The state court did not advise plaintiffs of their right to be represented at said hearings, nor of their right to have counsel appointed for them without cost should they be unable to afford an attorney. Counsel was not appointed to represent them (J.A. XXXX, Complaint).

The result of these hearings in state court was the incarceration of plaintiffs. Although each was eventually released (after having served between 1 and 73 days in jail), they remain indigent, in arrears on their support obligations, unable to afford counsel and subject to future enforcement proceedings where they again risk losing their liberty. No enforcement proceedings are pending (nor were any pending at any point since the filing of the complaint in this matter) against the named plaintiffs; however there have been more than 50,000 enforcement hearings in state court since the complaint in this matter was filed.

SUMMARY OF ARGUMENT

The district court erred in finding the first prong of Younger abstention (the existence of a pending state proceeding) had been satisfied. The putative classes should have been certified, and plaintiffs are entitled to a preliminary injunction compelling defendants to comply with the United States Constitution.

In finding that the requirement of a pending proceeding had been satisfied, the Court made two errors.

First, it held that a procedure where constitutional claims "may"^[1] be raised was the same thing as an actual, pending "proceeding," agreeing with defendants' assertion that a pending proceeding existed "in the form of continuing jurisdiction over the matter" by the state court. (J.A. XXXX [stoop reply], XXXX decision).

The central focus of the complaint is a challenge to the state court's procedure of incarcerating indigent child support obligors without appointing counsel to represent them. Without this procedure remaining in place, plaintiffs would not be able to allege that they would be subject again to the challenged conduct. Under the rule announced in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), plaintiffs would therefore lack standing to seek injunctive relief.

The district court's equating of an existing procedure with an actual, pending proceeding as to plaintiffs amounts to a requirement that plaintiffs exhaust their state remedies, which is not required in a §1983 action. Moorish Science Temple of America, Inc. v. Smith, 693 F.2d 987, 989 (2d Cir.1982).

Next, the district court opined that the enactment of the Uniform Interstate Family Support Act, N.J.S.A. 2A:4-30.65 ("UIFSA") constituted a retention of jurisidction by the state (vis-a-vis the federal court) and justified further analysis of defendants' application for the district court to abstain. (J.A. XXXX, Memorandum Opinion at XX). UIFSA, controls which state (in a contest between two states) has jurisdiction to enforce or modify a child support Order. It has no applicability or relevance to purely intrastate child support enforcement actions. See, Sharp v. Sharp, 336 N.J. Super. 492 (App.Div. 2001), Teare v. Bromley, 332 N.J. Super. 381, 386 (Ch.Div. 2000), Peace v. Peace, 325 N.J. Super. 122, 127 (Ch.Div. 1999).

In sum, defendants asserted below that a pending procedure (the contempt process being challenged by the complaint) was the equivalent of a pending proceeding for purposes of the first prong of Younger abstention. In response to plaintiffs' application for reconsideration on this point, defendants argued that a pending proceeding existed "in the form of continuing jurisdiction over the matter" by the state court (J.A. XXXX). The District Court's acceptance of this argument constitutes reversible error.

The issue properly before the district court was whether consistent with the Due Process Clause of the Fourteenth Amendment ─ as it has been applied by every federal and state court to consider the issue ─ a citizen can be deprived of liberty without being afforded counsel.

In their complaint, plaintiffs sought declarative and injunctive relief. While a declaration that defendants were in violation of the United States Constitution involves fact-finding and therefore is not properly before this court, no fact-finding is required for this Court to issue a preliminary injunction which simply compels compliance with the United States Constitution without declaring whether it has been violated in the past.

The required elements for certification of the classes and for the issuance of a preliminary injunction compelling defendants to comply with the mandate of the United States Constitution were satisfied and the district court should have certified the classes and issued the preliminary injunction. This Court should reverse and remand for entry of an order certifying the classes, issuing a preliminary injunction, and requiring a hearing as to whether the injunction should be made permanent and a declarative judgement should issue.

ARGUMENT

I. THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS' APPLICATION FOR ABSTENTION PURSUANT TO YOUNGER V. HARRIS.

A. A potential court procedure is not the equivalent of a pending proceeding against plaintiffs. Without a pending proceeding, no further analysis of Younger abstention was appropriate.

In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) the Supreme Court held that principles of equity, comity and federalism prevent federal courts from enjoining pending state criminal proceedings. Subsequently, the Supreme Court expanded the doctrine of Younger to areas beyond that of pending state criminal proceedings. See, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Judice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977).

Where, as here, there was no pending state action at the time the federal suit was filed, the Supreme Court has declared that "the relevant principles of equity, comity and federalism have little force." Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257 (1972). Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 1217, 39 L.Ed.2d 505 (1974). See also, Wooley v. Maynard, 430 U.S. 705, 709‑10, 97 S.Ct. 1428, 1432‑33, 51 L.Ed.2d 752 (1977).

The issue of whether there was a pending proceeding was discussed at length at oral argument on the motion and cross motion below. See, J.A. XXXX (Transcript of Oral Argument, at T12-15 to T14-L15). During oral argument, defendants did not assert that there was a pending proceeding as to any of the named plaintiffs, but rather that the state court retained jurisdiction to enforce its orders. The District Court inquired into whether there was any support for the proposition that a retention of jurisdiction to conduct theoretical future enforcement hearings equated an actual, pending proceeding for purposes of Younger abstention. The defendants were unable to offer any support for this notion (either at oral argument or in their brief), and the Court abruptly moved on from discussing the topic (J.A. XXXX, T13-12 to 13-16).^[2]

In their briefs below, plaintiffs relied strongly on the discussion of Younger abstention contained in Lake v. Speziale, 580 F.Supp. 1318 (D.Conn. 1984). In Lake, the district court initially noted that, as here, there was no pending proceeding. Lake 580 F.Supp. at 1339.

The Lake Court easily distinguished Judice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) from a challenge to the incarceration of indigent, unrepresented child support obligors when no proceeding is pending:

. . . . As to the two plaintiffs in Vail whom the Court found had standing, the Court stated that "since their standing . . . is predicated on the existence of a pending, and not merely threatened, proceeding, we deal with appellants' Younger contentions." Id. Thus, in Vail, it was the crucial element of the plaintiffs' standing being based on a pending proceeding that allowed the Court to reach the Younger issues. The clear import of the Court's above‑quoted statement in Vail is that, had the plaintiffs' standing been predicated on merely the existence of a threatened proceeding, the Court would not reach the Younger issues which could require abstention. The theory of Vail is that Younger abstention simply is not appropriate when plaintiff's action in federal court is not directed against a pending state action. This latter situation is precisely that which is currently before the Court. Lake v. Speziale, 580 F.Supp. 1329.

In this matter, the district court purported to distinguish Lake since, after the Lake decision, New Jersey enacted the Uniform Interstate Family Support Act (UIFSA), N.J.S.A. 2A:4-30.65 to 30.123. (J.A. XXXX, Memorandum Opinion at 14).

As the statute's title implies, UIFSA concerns itself with the "interstate establishment, modification, and enforcement of child support," and "provides a comprehensive framework for dealing with the jurisdictional problems between states."

UIFSA addresses only interstate child support issues. See, e.g., Sharp v. Sharp, 336 N.J. Super. 492 (App.Div. 2001), Teare v. Bromley, 332 N.J. Super. 381, 386 (Ch.Div. 2000), Peace v. Peace, 325 N.J. Super. 122, 127 (Ch.Div. 1999). Obviously, UIFSA has no relevance when, as here, the constitutional issue of improperly incarcerating citizens arises out of an intrastate child support enforcement hearing. Neither defendants nor the Court's Memorandum Opinion makes any connection between these two distinct subjects.^[3]

Next, the court noted "plaintiffs admission that the state court may once again seek to enforce its own orders with respect to the plaintiffs' continued arrears" (J.A. XXXX Memorandum Opinion, Page 11). It is respectfully but emphatically urged that the correct standard is not whether there "may" be a future "proceeding"; the issue is whether there "is" a "pending proceeding." As the state conceded at oral argument, there is no pending proceeding. Since this fundamental threshold was admittedly not met, further consideration of Younger abstention is plainly inappropriate.

In opposition to defendants' application for Younger abstention, plaintiffs supplied the Court with eight federal cases from around the country with identical factual and legal scenarios to the one before the district court. See, Lake v. Speziale, 580 F.Supp. 1318 (D.Conn.1984); Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981); Walker v. McLain, 768 F.2d 1181 (10th Cir.App. 1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984); Ridgeway v. Baker, 720 F.2d 1409 (5th Cir. 1983); McKinstry v. Genesee County Circuit Judges, 669 F.Supp. 801 (E.D.Mich.1987); Johnson v. Zurz, 596 F.Supp. 39 (N.D.Ohio 1984); Young v. Whitworth, 522 F.Supp. 759 (S.D.Ohio 1981).

The District Court below noted only two of these cases, Johnson v. Zurz, 596 F.Supp. 39 (N.D.Ohio 1984) and Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981), and improperly distinguished them. In Johnson and Mastin, federal district courts found "extraordinary circumstances" and declined requests to abstain, in spite of the fact that there were pending proceedings at the time the federal action was filed. See Johnson, 596 F.Supp at 42 ("Two days before the scheduled [state court ] contempt hearing Johnson filed this class action for injunctive and declaratory relief") and Mastin, 526 F.Supp. at 969 (". . . plaintiff was told to return to the Domestic Relations Court on August 17, 1981 . . . [He ] requested the [state ] Court appoint [counsel ] for him . . . Because he was not able to afford counsel for the hearing scheduled August 17, plaintiff came to this Court requesting a preliminary injunction against the Domestic Relations Court").

In both these cases, it was undisputed that there was a pending proceeding at the time the Court undertook a Younger analysis. In sharp contrast, here it is undisputed that there is no pending proceeding, only the unconstitutional procedure being employed by defendants.

The District Court's determination that Younger abstention was appropriate because a state court procedure exists wherein the constitutional challenges could be raised amounts to a holding that plaintiffs did not exhaust their state remedies before filing their §1983 action in Federal Court. There is no question that plaintiffs did not exhaust their state remedies. It is also clear that there is no requirement that they do so. Marks v. Stinson, 19 F.3d 873, 883 (3d Cir. 1994) citing Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), Moorish Science Temple of America, Inc. v. Smith, 693 F.2d 987, 989 (2d Cir.1982); Meyer v. Frank, 550 F.2d 726, 729 (2d Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977); Snyder v. Altman, 444 F.Supp. 1269, 1270 (N.D.Cal.1978).

In order to sustain an application for injunctive relief again state officials, a plaintiff must allege a likelihood that the complained of conduct will be repeated. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Here, the district court ruled that the mere existence of a process by which future contempt proceedings "may" be brought against plaintiffs constitutes a pending proceeding permitting abstention under Younger. Under this Catch-22 reasoning, no application for injunctive relief against state officials could ever be sustained, since the allegation required by Lyons would support abstention under Younger.

B. Defendants cannot assert any state interest more important than compliance with the United States Constitution.

In further support of its decision, the district court noted that the contempt process implicates an important state interest, citing Judice v. Vail. (J.A. XXXX, Memorandum Opinion at 11). However, the district court erred in failing to distinguish Judice in the same manner as the Court in Lake v. Speziale did. See, infra. at Page 12, Point I(a).

The issue presented to the district court was the ongoing violation of the United States Constitution by the defendants. Even if there were a pending proceeding that permitted further analysis of Younger abstention, it is axiomatic that there can be no state interest that exceeds the mandate of the Federal Constitution. U.S. Const. Art. VI, § 2 (The Supremacy Clause). See also, Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (suits brought under 42 U.S.C. § 1983 are exempt from the flat ban against the issuance of injunctions directed at state court proceedings).

C. The Domestic Relations Exception does not apply

In addition, the district court noted the long-standing reluctance of federal courts to become involved in domestic relations matters. Anastasi v. Anastasi, 532 F. Supp. 720, 723 (D.N.J. 1982), Solomon v. Solomon, 516 F.2d 1018, 1025 (1975) (J.A. XXXX, Memorandum Opinion at 12).

This argument misses the mark. Simply put, child support is not the issue; the Constitutional prohibition against depriving an unrepresented citizen of liberty is.

Were the issue a domestic relations matter, no federal Court would have addressed it. By contrast, every federal court that has considered the problem raised in this case has found the issue to center on the unconstitutional deprivation of liberty, and every federal court to address the merits has granted relief. See, e.g. Lake v. Speziale, 580 F.Supp. 1318 (D.Conn.1984); Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981); Walker v. McLain, 768 F.2d 1181 (10th Cir.App. 1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984); Ridgeway v. Baker, 720 F.2d 1409 (5th Cir. 1983); McKinstry v. Genesee County Circuit Judges, 669 F.Supp. 801 (E.D.Mich.1987); Johnson v. Zurz, 596 F.Supp. 39 (N.D.Ohio 1984); Young v. Whitworth, 522 F.Supp. 759 (S.D.Ohio 1981).

The United States Supreme Court explicitly affirmed that the federal court is to focus on the relief at the heart of a controversy and that the domestic relations exception should not apply when a "lawsuit in no way seeks a divorce, alimony, or child custody decree." Ankenbrandt v. Richards, 504 U.S. 689, 703, 112 S.Ct. 2206, 2214, 119 L.Ed.2d 468 (1992); Barber v. Barber, 21 How. 582, 16 L.Ed. 226 (1859); Strasen v. Strasen, 897 F.Supp. 1179, 1182 (E.D.Wis.1995).

Jurisdiction in the district court was solidly conferred by the Civil Rights Act of 1964, 42 U.S.C.A. §1983. "Abstention from the exercise of federal jurisdiction is the exception, not the rule." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). Federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given to them." United State v. Lewis, 936 F.Supp. 1093, 1108 (D.R.I. 1996). This Court should reverse the district court's decision to abstain from hearing this matter.

II. THE DISTRICT COURT ERRED IN FAILING TO CERTIFY THE PLAINTIFF AND DEFENDANT CLASSES PURSUANT TO FED.R.CIV.P. RULE 23(A) AND 23(B)(2)

A. As to Defendant class

Fed.R.Civ.P. 23(a) and 23(b)(2) requires: (1) the persons affected are so numerous that joinder of all parties is impracticable; (2) there are common questions of law and fact; (3) the claims and defenses of the representative defendants are representative of those of the class; (4) the representative defendants will fairly and adequately protect the interests of the class; and (b)(1)the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.

That the persons affected are so numerous that joinder of all parties is impracticable is beyond debate. The District Court should have taken judicial notice of the fact that there are more than 500 sitting Judges of the Superior Court of the State of New Jersey (J.A. XXXX, New Jersey Lawyers Diary, 2000 Edition, pages 883-892).

Without a doubt, there are common questions of law and fact, and the claims and defenses of the representative defendants are representative of those of the class. The defendant class uniformly applies the rules as promulgated by the Supreme Court of New Jersey. The factual and legal issues as to all defendants are identical (J.A. XXXX, Plaintiffs' Amended Complaint).

The representative defendants will fairly and adequately protect the interests of the class. All New Jersey Judges are represented by the Attorney General's office, experienced Federal Court litigators who will fairly and adequately protect the interests of the class.

Judges of the Superior Court have been certified as a class under the same circumstances in other jurisdictions. See, e.g. Lake v. Speziale, 580 F.Supp. 1318 (D.Conn.1984), Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981).

There are no factual questions required prior to the defendant class being certified. This Court should order the certification of the defendant class.

B. As to plaintiff class

The district court also erred in failing to certify the plaintiff class. As stated in the Amended Complaint, the named plaintiffs bring this suit individually and on behalf of all residents of the State of New Jersey who (1) are suject to support orders issued by the Chancery Division, Family Part of the Superior Court and/or (2) are indigent and unable to procure counsel to represent them at civil contempt and/or enforcement proceedings that potentially could result in a loss of their physical liberty and (3) are in arrears under these support orders and are thus under constant threat of again being incarcerated. (J.A. XXXX, Amended Complaint).

As with the defendant class, there is no doubt that this is a proper class action under Rule 23(a) of the Federal Rules of Civil Procedure. The Rule requires that, as to the class: (1) the persons affected are so numerous that joinder of all parties is impracticable; (2) there are common questions of law and fact; (3) the claims and defenses of the representative plaintiffs are representative of those of the class; (4) the representative plaintiffs will fairly and adequately protect the interests of the class; and (b)(2) the parties opposing the class plaintiffs have acted on grounds generally applicable to the class, thereby making appropriate final injunctive relief to the class as a whole.

Where, as here, only declarative and injunctive relief is sought, the standard for establishing the numerosity requirement for class certification has traditionally been significantly relaxed. To establish the numerosity element, plaintiffs are not required to show that it would be "impossible" to join all members, but only that such joinder would be "difficult", "inconvenient" or "impracticable." See, e.g., W.P. v. Poritz, 931 F.Supp. 1187 (D.N.J. 1996), Weiss v. York Hospital, 745 F.2d 786, 808 (3d Cir.), certiorari denied 105 S.Ct. 1777, 470 U.S. 1060, 84 L.Ed.2d 836 (1984). Even "speculative and conclusory representations" as to the size of the class suffice as to the requirement of many. Doe v. Charleston Area Medical Center, Inc.,, 529 F.2d 638 (W.Va. 1975), Young v. Pierce, 544 F.Supp. 1010 (E.D.Tex. 1982).

It is respectfully submitted that plaintiffs satisfy the numerosity requirement for class certification (See J.A. XXXX, Amended Complaint).

As with the defendant class, there are common questions of law and fact. While the precise underlying facts surrounding each case may differ, the common facts are what is relevant: Each person in arrears is being compelled to attend enforcement hearings and being subjected to potential incarceration without notification of their right to counsel, without notification of their right to appointed counsel if indigent, and without having counsel appointed to represent them if they are indigent.

The claims and defenses of the representative plaintiffs are identical to those of the class as a whole.

The representative plaintiffs will fairly and adequately protect the interests of the class. The claims are typical of those raised by defendants in child support matters and the adjudication sought by the plaintiff class, if granted, would protect all the affected plaintiffs.

Finally, the parties opposing the class plaintiffs have acted on grounds generally applicable to the class as a whole, thereby making appropriate injunctive relief to the class as a whole. The judges of the Superior Court of New Jersey preside over hearings that potentially could result in incarceration, Chief Justice Poritz promulgates the rules that control the decisions of the Superior Court judges, and Hon. Richard J. Williams administers the court procedures whereby the incarcerations occur. As with the defendant class, there are no genuine fact questions preventing this court from directly deciding this issue.

Plaintiff class should have been certified below.

III. THE DISTRICT COURT ERRED IN FAILING TO ISSUE A PRELIMINARY INJUNCTION AGAINST THE UNCONSTITUTIONAL PRACTICES OF DEFENDANT CLASS.

When considering a federal district court's denial of a preliminary injunction, the Court of Appeals reviews legal conclusions de novo, findings of fact for clear error, and its ultimate decision to grant or deny the preliminary injunction for an abuse of discretion. Maldonado v. Lucca, 157 F.3d 179 (3d Cir.1998); Anderson v. Davila, 125 F.3d 148, 159 (3d Cir.1997); New Jersey Hosp. Ass'n v. Waldman, 73 F.3d 509, 512 (3d Cir.1995).

To support a preliminary injunction, the moving party must show irreparable injury and a reasonable probability of eventual success on the merits. Additionally, the court must weigh the possibility of harm to the non-moving party and, when relevant, harm to the public. Cerro Metal Products v. Marshall, 620 F.2d 964, 972 (3d. Cir. 1980), citing Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356‑57 (3d Cir. 1980).

Plaintiffs have been incarcerated in violation of the Fourteenth Amendment to the United States Constitution. The unconstitutional deprivation of a fundamental right constitutes the requisite "irreparable injury" to support a preliminary injunction. Pulliam v. Allen, 466 U.S. 522, 537, 104 S.Ct. 1970, 1977‑1982, 80 L.Ed.2d 565 (1984).

Twenty years ago, the Supreme Court of the United States declared that, as a matter of due process under the Fourteenth Amendment to the United States Constitution, persons should never be deprived of their fundamental, constitutional right to liberty unless he or she is first notified of the right to counsel, notified of their right to appointed counsel if indigent, and afforded the right to appointed counsel if indigent. Lassiter v. Department of Social Services, 452 U.S. 18, 31‑34, 101 S.Ct. 2153, 2161‑2163, 68 L.Ed.2d 640 (1981), U.S. Const. Amend. XIV.

The test is not whether a State labels the proceeding "civil" or "criminal" but whether the possible result of the hearing is a loss of liberty. See, e.g., Scott v. Illinois, 440 U.S. 367, 369, 373‑374, 99 S.Ct. 1158, 1159‑1160, 1162, 59 L.Ed.2d 383 (1979), In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 1451, 18 L.Ed.2d 527 (1967).

While this is an issue of first impression in the Third Circuit, every Federal Court to apply this holding to the issue of incarcerating an indigent, unrepresented child support obligor has held that obligors must be notified of their right to counsel and, if the obligors are indigent, counsel must be appointed to represent him or her. See, e.g. Lake v. Speziale, 580 F.Supp. 1318 (D.Conn.1984); Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981); Walker v. McLain, 768 F.2d 1181 (10th Cir.App. 1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984); Ridgeway v. Baker, 720 F.2d 1409 (5th Cir. 1983); McKinstry v. Genesee County Circuit Judges, 669 F.Supp. 801 (E.D.Mich.1987); Johnson v. Zurz, 596 F.Supp. 39 (N.D.Ohio 1984); Young v. Whitworth, 522 F.Supp. 759 (S.D.Ohio 1981).

Further, while this issue has never been addressed by the State Courts of New Jersey, the two other states in the Third Circuit have addressed the issue and are now in compliance with the Federal Constitution.

Neither Pennsylvania nor Delaware incarcerates indigent child support obligors without appointing them counsel.

In Delaware, the State Supreme Court (relying on Lassiter and its progeny) ruled definitively that counsel must be appointed to represent indigent child support obligors who are facing incarceration and that it is within the discretion of the trial court to order that counsel be appointed when less serious consequences are at stake. Black v. Division of Child Support Enforcement, 686 A.2d 164 (Del. 1996), corrected, (Dec. 18, 1996).

In Pennsylvania, the appellate court in Rittel v. Rittel, 335 Pa.Super. 550, 485 A.2d 30 (App. Div. 1984) ruled that an indigent child support contemnor was not entitled to counsel where no deprivation of liberty was involved. Id. at 557, fn5. While Rittel^[4] stopped short of expressly holding that indigent child support obligors must be appointed counsel when facing incarceration, the Pennsylvania legislature subsequently amended 16 P.S. §9960.6 to provide that the Office of the Public Defender shall represent any person "(11) In any other situations were representation is constitutionally required" and Pennsylvania now routinely assigns these matters to the Public Defenders Office. (J.A. XXXX). See also, Commonwealth v. $9,847.00 U.S. CURRENCY, 161 Pa.Cmwlth. 548, 637 A.2d 736 (App.Div. 1994); Commissioner v. Farmer, 466 A.2d 677, 319 Pa.Super. 542 (App.Div. 1983) (Appointing counsel in civil proceeding as a matter of due process even where no deprivation of liberty threatened). See also J.A. XXXX (Exhibit G below), a standard notice issued by the Bucks County, Pennsylvania, Domestic Relations Court that indicates the availability of the public defender for indigent child support obligors, versus J.A. XXXX (Exhibit H below), a standard scheduling notice issued by the State of New Jersey, which references the possibility of incarceration but does not provide notice of the right to appointed counsel and does not indicate that counsel will be made available, and J.A. XXXX (Exhibit I below), an official New Jersey Administrative Office of the Courts pamphlet regarding child support enforcement hearings, which explicitly states "a lawyer will not normally be court-appointed for this type of hearing."

Plaintiffs' probability of success on the merits is extremely high.

Finally, the court should weigh the possibility of harm to the non-moving party and, when relevant, harm to the public. As was stressed below, this suit does not challenge the use of incarceration as a tool to coerce compliance with a child support order by a recalcitrant obligor. Incarceration may in some instances be an appropriate and fully constitutional method of coercing compliance. Adherence to the mandate of the United States Constitution that counsel first be appointed for indigent, unrepresented child support obligors will do nothing more than ensure that this extreme relief is warranted in any given case. The granting of the requested injunction would pose no risk of harm to the non-moving party or the public.

The district Court erred in failing to issue a Preliminary Injunction. As with certification of the classes, there is no material fact question involved that would prevent this Court from immediately compelling the defendant class to comply with the undipsuted mandate of the United States Consitution.

CONCLUSION

When applying the mandate of his oath to uphold and defend the Constitution of the United States to an identical factual pattern in McKinstry v. Genesee County Circuit Judges, 669 F.Supp. 801 (E.D.Mich.1987), Judge Newblatt described the ongoing incarceration of indigent, unrepresented obligors in state court as "unremedied unconstitutional deprivations" and held this to be "a situation that cannot be tolerated."

The order of the district court should be reversed, a preliminary injunction should issue, and the matter should be remanded for a determination of whether a declarative judgment and permanent injunction should be entered. In the alternative to this Court reaching the injunction issue, that issue should be remanded for immediate, expedited review in the district court.

Respectfully submitted this 9 Day of October, 2001 ,

David Perry Davis, Esq.

Certification of Bar Membership (3rd Cir. LAR 46.1)

I, David Perry Davis, Esq., certify that I am a member in good standing of the bar of the State of New Jersey, and am duly admitted to practice before the Federal District Court and before the Third Circuit Court of Appeals.

Certification of Compliance

I, David Perry Davis, Esq., hereby certify pursuant to F.R.A.P. 28(g) that the within Appellant's Brief is in compliance with the Rule in that it contains a total of 7,806 words inclusive of title, table of contents, and table of authorities.

Certification of Service

I, David Perry Davis, Esq., hereby certify that I served three copies of the enclosed Appellant's Brief and Appendix upon: John J. Farmer, Jr., (personally served on Barbara J. Stoop, DAG,) Attorney General of New Jersey, at the Hughes Justice Complex, 25 West Market Street, Trenton New Jersey, via hand delivery on October 8, 2001.

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements are willfully false, I am subject to punishment.

___________________________

David Perry Davis, Esq.

DATED:

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^[1] The word "may" occurs in the tenth line down from the top, near the end of the first paragraph (J.A. XXXX).

^[2] THE COURT: The fact that the Court -- do you have any support for the position that the Court having entered a final judgment, but not having brought -- proceedings brought to enforce it implicates Younger . . .

MS. STOOP: The only --

THE COURT: If not, any time there was ever any final judgment, Younger would apply, wouldn't it? And where is your impending [sic ] proceeding? . . . you always must have a pending action as to the Court. So, query whether a final judgment as to which there are no enforcement proceedings then pending would satisfy Younger.

MS. STOOP: I guess what I'm looking at, Your Honor, is the divorce proceedings from which the order emanated. That is -- that remains under the jurisdiction of the Court. And I -- I am looking at that as the ongoing matter before the Court.

THE COURT: Let's move on . . . (J.A. XXXX).

^[3] Although UIFSA was enacted in 1998, fourteen years after the Lake decision, the statute does not embody a new concept. New Jersey has had some form of interstate child support jurisdiction statute on its books since at least 1965. UIFSA replaced the Revised Uniform Reciprocal Enforcement of Support Act, N.J.S.A. 2A:4‑30.24 ("RURESA") (Repealed), which replaced the Uniform Reciprocal Enforcement of Support Act, N.J.S. 2A:4‑30.1 et seq. ("URESA") (Repealed).

^[4] It should be noted that Rittel was submitted for decision prior to the decision in Lake v. Speziale and the majority of the case law addressing the issue of appointing counsel for indigent child support obligors.