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
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UNITED STATES CONSTITUTION
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U.S. Const. Art. 6 § 2................................... 19
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U.S. Const. Amend. XIV................................... 26
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28 U.S.C. § 1331.......................................... 1
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28 U.S.C. § 1291.......................................... 1
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28 U.S.C. § 1343 (3) ..................................... 1
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28 U.S.C. § 1343 (4) ..................................... 1
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Civil
Rights Act of 1871
42 U.S.C. §
1983................................ passim
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Anastasi
v. Anastasi,
532 F. Supp. 720, 723 (D.N.J. 1982)................. 17
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Anderson
v. Davila,
125 F.3d
148, 159 (3d Cir.1997).................... 24
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Ankenbrandt
v. Richards,
504 U.S.
689, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992) 18
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Barber
v. Barber,
21 How. 582, 16 L.Ed. 226 (1859).................. 18
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Cerro
Metal Products v. Marshall,
620 F.2d
964 (3d. Cir. 1980)....................... 25
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City
of Los Angeles v. Lyons,
461 U.S.
95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)
........................................... 7,
16, 17
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Colorado
River Water Conservation Dist. v. United States,
424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).. 19
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Continental
Group,
Inc. v. Amoco Chemicals Corp.,
614 F.2d
351 (3d Cir. 1980)........................ 25
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Doe
v. Charleston Area Medical Center, Inc.,
529 F.2d 638 (W.Va. 1975)........................... 23
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Huffman
v. Pursue, Ltd.,
420 U.S.
592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).. 9
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In
re Gault,
387 U.S. 1, 87 S.Ct. 1428,
18 L.Ed.2d 527 (1967)... 26
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Johnson v. Zurz,
596
F.Supp. 39 (N.D.Ohio 1984)..................... 26
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Judice
v. Vail,
430 U.S.
327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). 10
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Lake
v. Speziale,
580
F.Supp. 1318 (D.Conn. 1984) 11,
12, 14, 18, 21, 26
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Lake
Carriers' Ass'n v. MacMullan,
406 U.S.
498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). 10
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Lassiter
v. Dept of Social Services,
452 U.S.
18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) 26,
27
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Patsy
v. Board of Regents,
457 U.S.
496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) 16
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Maldonado
v. Lucca,
157 F.3d
179 (3d Cir.1998)......................... 25
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Marks v. Stinson,
19 F.3d 873, 883 (3d Cir. 1994)..................... 16
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Mastin
v. Fellerhoff,
526
F.Supp. 969 (S.D.Ohio 1981).... 14,
15, 18, 21, 26
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McKinstry
v. Genesee County Circuit Judges,
669 F.Supp. 801
(E.D.Mich.1987)........ 14, 18,
26, 30
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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
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Mitchum
v. Foster,
407 U.S.
225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). 19
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Moorish
Science Temple of America, Inc. v. Smith,
693 F.2d 987 (2d Cir.1982)....................... 7, 16
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New
Jersey Hosp. Ass'n v. Waldman,
73 F.3d
509 (3d Cir.1995).......................... 25
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Pulliam
v. Allen,
466 U.S.
522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984) 25
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Ridgeway v. Baker,
720 F.2d
1409 (5th Cir. 1983).............. 14,
18, 26
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Scott
v. Illinois,
440 U.S.
367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). 26
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Sevier v. Turner,
742 F.2d
262 (6th Cir.1984)................ 14,
18, 26
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Snyder
v. Altman,
444
F.Supp. 1269 (N.D.Cal.1978).................... 16
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Solomon
v. Solomon,
516 F.2d
1018 (1975)............................... 17
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Steffel
v. Thompson,
415 U.S.
452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). 10
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Strasen
v. Strasen,
897 F.Supp. 1179, 1182 (E.D.Wis.1995)............... 18
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Trainor
v. Hernandez,
431 U.S.
434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). 10
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United
State v. Lewis,
936 F.Supp. 1093, 1108 (D.R.I. 1996)................ 19
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W.P.
v. Poritz,
931
F.Supp. 1187 (D.N.J. 1996)..................... 23
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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
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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
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Wooley
v. Maynard,
430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977).. 10
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Young v. Whitworth,
522 F.Supp. 759 (S.D.Ohio 1981)............. 14, 18, 26
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Young v. Pierce,
544 F.Supp. 1010 (E.D.Tex. 1982).................... 23
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Younger
v. Harris,
401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) 2, 3, 4, 9
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Uniform
Interstate Family Support Act,
N.J.S.A. 2A:4-30.65 et
seq. ("UIFSA")........ 7,
12, 13
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Revised
Uniform Reciprocal Enforcement of Support Act
N.J.S.A. 2A:4‑30.24 ("RURESA")...................... 13
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Uniform
Reciprocal Enforcement of Family Support Act,
N.J.S. 2A:4‑30.1 et seq. (repealed)
("URESA")....... 13
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Duties
of Public Defender
16 P.S. §
9960.6.................................... 28
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Black
v. Division of Child Support Enforcement,
686 A.2d 164 (Del. 1996), corrected, (Dec.
18, 1996) 27
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Commissioner v. Farmer,
466 A.2d
677, 319 Pa.Super. 542 (App.Div. 1983).... 28
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Commonwealth v. $9,847.00 U.S. CURRENCY,
161
Pa.Cmwlth. 548, 637 A.2d 736 (App.Div. 1994)... 28
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Peace
v. Peace,
325 N.J.
Super. 122, 127 (Ch.Div. 1999)............. 8
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Rittel
v. Rittel,
335
Pa.Super. 550, 485 A.2d 30 (App. Div. 1984).... 27
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Sharp
v. Sharp,
336 N.J.
Super. 492 (App.Div. 2001)................. 7
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Teare
v. Bromley,
332 N.J.
Super. 381 (Ch.Div. 2000) ................. 7
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New
Jersey Lawyers Diary,
2000 Edition, (pages 883-892)....................... 20
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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" 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 r