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TABLE OF CONTENTS

Table of Contents........................................... ii

Table of Authorities....................................... iii

Table of Contents to Exhibits............................... ix

Statement of facts........................................... 1

Argument

Point I: THE COURT SHOULD ENTER A PRELIMINARY INJUNCTION COMPELLING DEFENDANT CLASS TO IMMEDIATELY BEGIN COMPLYING WITH THE UNITED STATES CONSTITUTION............................................ 10

A. There exists a reasonable probability of eventual success on the merits as the United States Constitution mandates the appointment of counsel whenever a civil litigant's liberty is at stake in a hearing........ 11

B. Irreparable injury would result if the injunction is not granted. The unconstitutional deprivation of a fundamental right constitutes irreparable injury............... 19

C. A weighing of the equities favors the entrance of the requested preliminary injunction................... 21

Point II: THE CLASSES SHOULD BE CERTIFIED PURSUANT TO Rule 23(a) and 23(b)(2)............................................ 21

Conclusion.................................................. 30

Table of Authorities

New Jersey Case law

Crowe v. DeGioia,

90 N.J. 126 (1982) reh'g on remand 203 N.J. Super. 22 (App. Div. 1985)............................................... 10

Delgozzo v. Kenny,

266 N.J.Super. 169 (App.Div.1993)................ 24, 27, 28

Gross v. Johnson & Johnson‑Merck Consumer Pharms. Co.,

303 N.J.Super. 336 (Law Div.1997)..................... 24 26

In re Cadillac V8‑6‑4 Class Action,

93 N.J. 412 (1983)................................... 26, 27

In the Matter of the Civil Commitment of D.L.,

351 N.J. Super. 77 (App.Div.), cert granted 174 N.J. 185 (2002)................................................... 16

Paternoster v. Shuster,

296 N.J.Super. 544 (App.Div. 1997)....................... 10

Riley v. New Rapids Carpet Ctr.,

61 N.J. 218 (1972)....................................... 28

Saldana v. City of Camden,

252 N.J.Super. 188 (App.Div.1991)........................ 24

Scalchi v. Scalchi,

347 N.J.Super. 493 (App.Div. 2002)....................... 16

Rules Governing the Courts of the State of New Jersey

1:10-3.............................................. 14

1:13-2 (A).......................................... 30

1:36-3. ............................................. 7

23(a) .............................................. 21

23(b)(2)........................................ 21, 22

4:52-2 ............................................. 10

5:3-4............................................... 18

5:7-5............................................... 14

Federal Case law

Anthony et al v. Council et al,

2003 WL 152737, ____ F.3d ___ (3d. Cir. 2003).... 2, 20

Balgowan v. New Jersey,

115 F.3d 214, 217 (3d Cir. 1997).................... 19

Blackie v. Barrack,

524 F.2d 891 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976)............... 27, 28

Cerro Metal Products v. Marshall,

620 F.2d 964 (3d. Cir. 1980)........................ 10

City of Los Angeles v. Lyons,

461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).. 19

Doe v. Charleston Area Medical Center, Inc.,

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

Idaho v. Coeur d'Alene Tribe of Idaho,

521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) 19

In re Gault,

387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) 11

Johnson v. Zurz,

596 F.Supp. 39 (N.D.Ohio 1984)...................... 15

Lake v. Speziale,

580 F.Supp. 1318 (D.Conn.1984).................. 21, 24

Lassiter v. Department of Social Services,

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

Mastin v. Fellerhoff,

526 F.Supp. 969 (S.D.Ohio 1981)................. 21, 24

McKinstry v. Genesee County Circuit Judges,

669 F.Supp. 801 (E.D.Mich.1987)..................... 25

Pulliam v. Allen,

466 U.S. 522, 537, 104 S.Ct. 1970, 1977‑1982, 80 L.Ed.2d 565 (1984).......................................... 19

Ridgeway v. Baker,

720 F.2d 1409 (5th Cir. 1983)....................... 25

Scott v. Illinois,

440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979).. 11

Seminole Tribe of Fla. v. Florida,

517 U.S. 44, 63, 116 S.Ct. 1114, 1127, 134 L.Ed.2d 252 (1996).............................................. 19

Sevier v. Turner,

742 F.2d 262 (6th Cir.1984)......................... 25

United States v. McLeod,

385 F.2d 734 (CA5 1967)............................. 19

W.P. v. Poritz,

931 F.Supp. 1187 (D.N.J. 1996).................. 23, 24

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). 15, 24

Weiss v. York Hospital,

745 F.2d 786, 808 (3d Cir.) 105 S.Ct. 1777, 470 U.S. 1060, 84 L.Ed.2d 836 (1984) cert denied 105 S.Ct. 1777, 470 U.S. 1060, 84 L.Ed.2d 836 (1984)............ 23, 24

Young v. Pierce,

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

Young v. Whitworth,

522 F.Supp. 759 (S.D.Ohio 1981)..................... 25

Foreign State Case Law

Allen v. Casady,

511 N.W.2d 125, 127 (Neb. 1994)......... Chart: Exhibit F

Black v. Division of Child Support Enforcement,

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

........................................ Chart: Exhibit F

Brotzman v. Brotzman,

91 Wis.2d 335, 283 N.W.2d 600 (Wis.Ct.App.1979)... Chart: Exhibit F

Burrell v. Arkansas Dept. of Human Servs.,

850 S.W.2d 8 (Ark. App. 1993)........... Chart: Exhibit F

Camp v. East Fork Ditch Co.,Ltd.,

55 P.3d 304 (Idaho, 2002)............... Chart: Exhibit F

Choiniere v. Brooks,

163 Vt 625 (1995)....................... Chart: Exhibit F

Commissioner v. Farmer,

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

........................................ Chart: Exhibit F

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

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

........................................ Chart: Exhibit F

County of Santa Clara v. Superior Court,

2 Cal.App.4th 1686, 5 Cal.Rptr.2d 7 (1992) Chart: Exhibit F

In re Calhoun,

47 Ohio St.2d 15, 350 N.E.2d 665 (1976) Chart: Exhibit F, 16

Cox v. Slama,

355 N.W.2d 401 (Minn.1984).............. Chart: Exhibit F

Duval v. Duval,

114 N.H. 422 (1974)............. Chart: Exhibit F, 14, 15

Ex Parte Goodman,

742 S.W.2d 536, 539 (Tex. App. 1987).... Chart: Exhibit F

Hunt v. Moreland,

697 S.W.2d 326 (Mo.App. 1985)....... Chart: Exhibit F, 15

In re Marriage of Stariha,

509 N.E.2d 1117 (Ind.App. 1987)......... Chart: Exhibit F

In Re Shelby R.,

148 N.H. 237 (2002)................. Chart: Exhibit F, 15

Johnson v. Johnson,

721 P.2d 290, 294 (Kan. Ct. App. 1986).. Chart: Exhibit F

Jolly v. Wright,

265 S.E.2d 135 (N.C. 1980).......... Chart: Exhibit F, 15

Kreiger v. Commonwealth,

38 Va.App. 569 5-4 en banc (August 2002)................

................................ Chart: Exhibit F, 14, 16

McBride v. McBride,

334 N.C. 124, 431 S.E.2d 14 (1993).. Chart: Exhibit F, 15

McNabb v. Osmundson,

315 N.W.2d 9 (Iowa 1982)................ Chart: Exhibit F

Mead v. Batchlor,

435 Mich. 480, 460 N.W.2d 493 (1990) Chart: Exhibit F, 15

North Dakota v. Gruchalla,

467 N.W.2d 451, 453 (N.D. 1991)......... Chart: Exhibit F

Olevsky v. District of Columbia,

548 A.2d 78 (D.C.1988).................. Chart: Exhibit F

Otton v. Zaborac,

525 P.2d 537 (Alaska 1974).............. Chart: Exhibit F

Padilla v. Padilla,

645 P.2d 1327 (Colo.App.1982)........... Chart: Exhibit F

People ex rel. Lobenthal,

516 N.Y.S.2d 928, N.Y.A.D. (1 Dept., 1987) Chart: Exhibit F

Rutherford v. Rutherford,

296 Md. 347, 464 A.2d 228 (1983)........ Chart: Exhibit F

Sanders v. Shephard,

185 Ill.App.3d 719, 133 Ill.Dec. 712, 541 N.E.2d 1150 (1989)

........................................ Chart: Exhibit F

Smoot v. Dingess,

236 S.E.2d 468, 471 (W. Va. 1975)....... Chart: Exhibit F

State v. Broussard,

490 So.2d 273 (La. 1986)................ Chart: Exhibit F

State v. Pultz,

556 N.W.2d 708 (Wis.,1996).............. Chart: Exhibit F

State ex rel. Dep't of Human Services v. Rael,

97 N.M. 640, 642 P.2d 1099 (1982)....... Chart: Exhibit F

Sword v. Sword,

249 N.W.2d 88 (Mich. 1976).......... Chart: Exhibit F, 15

Tetro v. Tetro,

86 Wash.2d 252, 544 P.2d 17 (1975)...... Chart: Exhibit F

Unpublished case law (New Jersey) cited pursuant to R. 1:36-3.

Leonard v. Blackburn (Exhibit I) ............ 7, 18, 22, 23

Scholarly Journals / Law Review Articles / Other Sources

Child Support at a Crossroads: When the Real World Intrudes upon Academics and Advocates,

Family Law Quarterly, Henry, Ronald K., Esq., (1999). 6

Fathers Behind Bars: the Right to Counsel in Civil Contempt Proceedings,

New Mexico Law Review, 14 NMLR 275 (1984) Chart: Exhibit F

Federal Department of child support enforcement: Preliminary data from the United States Census, 2000, US Govt Printing Office (2002)............................................. 9

Judges Journal of the American Bar Association,

Judges Journal of the American Bar Association, Rodgers, Hon. Frederick B., JSC, 40 NO. 1 Judges' J. 22, 22‑23 (1989).............................................. 16

The Right to Appointed Counsel for Indigent Civil Litigants

William & Mary Law Review, 30 Wm. & Mary L. Rev. 627 (1989)

.................................................... 13

The Right to Appointment of Counsel for the Indigent Civil Contemnor Facing Incarceration for Failure to Pay Child Support: McBride v. McBride

Campbell Law Review, 16 Campbell L. Rev. 127 (1989). 13

The Right to Appointed Counsel in Quasi Criminal Cases: Towards an Effective Assistance of Counsel Standard

Harvard Civil Rights & Civil Liberties Law Review, 19 Harv. C.R.C.L.L. Rev. 397........................... 13

Table of Contents to Exhibits

Written decision from District Court granting defendants' abstention application and June 2001 decision denying plaintiffs' application for reconsideration (Judge Garret E. Brown)................................ Exhibit A

Anthony et al v. Council et al, 2003 WL 152737, ____ F.3d ____ (3d. Cir. 2003), transcript of oral argument in Third Circuit................ Exhibit B

Transcripts of ability to pay hearings:

Anne Pasqua, James Thompson, Cleo Merritt, Devon Square, Jeffrey Leonard, Gary Davis, Todd Logan, Ronald Cohen, Barry Weinstein, Tolbert, Juan Cruz, Howard Sweeny.......................................... Exhibit C

Emergent appeals............................................ Exhibit D

Transcript of oral argument: Leonard v. Blackburn........... Exhibit E

Chart containing the applicable legal citations for each jurisdiction's determination on the constitutional necessity of appointing counsel for indigent civil contemnors facing incarceration at an enforcement hearing........................................................ Exhibit F

Affidavit of counsel in the Kreiger case, memo from Virginia Supreme Court, affidavit from Massachusetts counsel ....................... Exhibit G

Notice of Hearing: computer-generated notices from the State of New Jersey containing an admission that attorneys are not appointed to represent indigent obligors. .................................... Exhibit H

Leonard v. Blackburn decision............................... Exhibit I

PROCEDURAL HISTORY

This matter was originally filed in the United States District Court for the District of New Jersey in June of 2000 under Docket No. 00CV‑2418. The federal complaint was amended in August of 2000. Defendants filed a motion to dismiss on judicial immunity grounds in September of 2000. Plaintiffs filed a cross motion seeking a preliminary injunction and class certification in September of 2000, and opposing the immunity defense asserted by defendants as only injunctive and declarative relief (not monetary damages) was sought. Defendants filed a reply raising abstention issues pursuant to Younger v. Harris in October of 2000. Plaintiffs filed a sur-reply addressing these new issues in October of 2000. Oral argument was held before Hon. Garret E. Brown, USDJ, on November 16, 2000.

A written decision was issued granting defendants' abstention application in March of 2001 (Exhibit A).

An application for reconsideration was filed in March of 2001.

A written decision was issued in June of 2001 denying plaintiffs' application for reconsideration (Exhibit A).

A Notice of Appeal to the United States Court of Appeals for the Third Circuit was filed in June of 2001 under Docket No. 01-2735. Plaintiffs supporting brief was submitted in October of 2001. Defendants' brief in opposition was submitted in October of 2001. Plaintiffs' reply brief was submitted in November of 2001. Oral argument was held on April 24, 2002.

On January 17, 2003, the Third Circuit affirmed the abstention ruling, reasoning that, as a matter of first impression, the child support enforcement system is "a comprehensive and fluid system designed to address the ever‑present and ever‑changing realities of child support orders [and ] must be viewed as a whole, rather than as individual, discrete hearings" and that plaintiffs had not demonstrated that the State was resistant to adjudicating the constitutional issue.

To the limited extent that the Third Circuit addressed the merits, the Court held that it was "confident that any constitutional challenge to state court practice would receive proper consideration by the New Jersey courts," and, in its summation, "We do not intend to minimize the importance of the rights asserted. But we believe this constitutional challenge should be raised in the New Jersey courts." Anthony et al v. Council et al, 2003 WL 152737, ____ F.3d ____ (3d. Cir. 2003) (Exhibit B, opinion and transcript of oral argument in Third Circuit).

The complaint, along with an order to show cause seeking preliminary restraints, was re-filed in State Court on February 14, 2003.

STATEMENT OF FACTS

Plaintiffs incorporate the facts as alleged in the annexed complaint.

Anne Pasqua suffers from severe, disabling mental illness. As a result of her disease, she lost custody of her two children in 1999. She was required to pay child support in the amount of $160.00 per week. By 2000, she was in arrears and a warrant was issued for her arrest. She was picked up in a deadbeat parent raid in April and brought before Hon. F. Lee Forrester, PJFP. At the hearing (Exhibit C), Ms. Pasqua initially testified that she was supposed to be receiving and not paying child support. Judge Forrester concluded that Ms. Pasqua was proceeding in bad faith and, without so much as inquiring into her ability to pay, ordered Ms. Pasqua incarcerated until she came up with $3,400 toward her arrears. Two weeks later, Ms. Pasqua was released without having made any payment. Shortly thereafter, on a referral from the undersigned, the Community Health Law Project represented Ms. Pasqua in a motion to have her support reduced. This application was granted in 2001 and she was ordered to pay $5.00 per week. Ms. Pasqua remains disabled. In 2002, she was committed for three months to the Trenton State Psychiatric Hospital. She currently lives in a shelter in Trenton. She remains indigent and unable to pay even the nominal $5.00 per week she was ordered to pay. She has made no payments since December of 2002 and is subject to a warrant being issued at any time.

Had counsel been appointed to represent Ms. Pasqua, the issue of her competence and disability would have been raised. The issue of her inability to pay the release amount set would have been raised. She would not have been subjected to the indignity of jail for two weeks as a result of having been deprived of her right to counsel who could have raised the competency and ability to pay issues.

Ray Tolbert is the father of six children by three different mothers. The children are: Ray Tolbert Jr., age 10, Ray Williams, age 18, Erika & Erik Brookins (twins) age 16, Jasmine Williams, 16, and Ashley Williams, 14. None of the child support orders took the prior existing support obligations into account. As a result of their mother passing away from a drug overdose, Ray Tolbert Jr., and Ray Williams reside with and are supported by Mr. Tolbert. Nonetheless, the child support case as to Ray Tolbert, Jr., and Ray Williams remains open as Mr. Tolbert is unaware of the procedure necessary to close it. He does not have a high school diploma and suffers from severe, chronic asthma. He has been on various forms of public assistance and disability his entire adult life. On March 27, 2000, after accumulating arrears in excess of $100,000 and failing to appear for a child support enforcement hearing, Mr. Tolbert was arrested when he was pulled over for a traffic offense. The Hon. Gerald J. Council, JSC, ordered him to pay $10,000 to secure his release in spite of Mr. Tolbert's testimony that he had access to only $1,500. Judge Council ordered that Mr. Tolbert would be again reviewed in six months and, in the interim, would remain committed to the Mercer County Corrections Center. On June 7, 2000, following an emergent appeal in a matter not related to the instant suit, Mr. Tolbert was released without having made any payment toward his arrears, with the Appellate Division terming his incarceration "manifest error" (Exhibit D). During his incarceration, his fiance took care of the two minor children for whom Mr. Tolbert is responsible. As of January 24, 2003, Mr. Tolbert's arrears total $134,699.70 and he is subject to arrest at any time.

Michael Anthony is the father of two children under child support orders, Gina Powell and Lisa Anthony. He was unable to maintain his child support payments. He does not have a high school diploma and has worked, for example, in a car wash in Trenton. He married in 1998 and his new wife gave birth to Michael Anthony, Jr. in 1999. Struggling to support himself, his wife, and their infant child, Mr. Anthony fell into arrears. A warrant was issued for his arrest and he was brought before the Hon. Gerald J. Council in May of 2000. He was released after posting $125.00 toward his arrears. In the fall of 2002, a warrant was again issued for Mr. Anthony's arrest as a result of his failure to pay child support. The warrant was executed on January 3, 2003, when Mr. Anthony appeared and made a payment toward his arrears. He remains indigent, in arrears and is subject to re-arrest if he misses two payments.

There can be no question that Mr. Anthony and Mr. Tolbert, as is the case with many members of the putative plaintiff class, were not responsible in their parenting decisions. The issue of

what to do under these circumstances is a vexing and socially important one, but the solution is not to disregard the constitutional protections we are all entitled to.

In contrast to the "deadbeat parent" image popularly portrayed in the mainstream media, the overwhelming majority of defendants in child support enforcement hearings are akin to the plaintiffs herein. See, e.g., Child Support at a Crossroads: When the Real World Intrudes upon Academics and Advocates, Family Law Quarterly, Ronald K. Henry, Esq., Spring, 1999. Regardless of their popularity, all litigants are entitled to the protections of our Federal Constitution as well as the fair application of the Rules Governing the Courts of the State of New Jersey.

PRELIMINARY STATEMENT

In Leonard v. Blackburn,[1] Hon. Linda Feinberg, AJSC, was confronted with a suit similar to the matter presented to this Court. In Leonard, the Court was asked to address the incarceration of arrested child support obligors for inordinate periods of time without any review of their incarceration, and to find that the level of inquiry made at "ability to pay hearings" was so inadequate that it violated plaintiffs' due process rights.

In Leonard, the Court, in sum, addressed the procedural defect concerning the timing of the hearings and announced a new rule that all persons arrested for failing to pay child support or failing to appear at an enforcement hearing must be reviewed initially within 72 hours of their arrest and then every two weeks thereafter to determine if their incarceration remained coercive.

On the issue of the substance of what occurred at those hearings, the trial court acknowledged that the problem exists, holding "I've reviewed those transcripts, and I have some concerns about the level of inquiry by the judges. I don't dispute that" (Exhibit E, 1T 21-14 to 21-17). However, the Court then found that it was without authority to address the substance of a hearing conducted by a fellow Superior Court judge, stating "I'm not an appellate court. And, I don't know what authority that I have to look at that and say that the judge misapplied the law ...." (Exhibit E, 1T 21-8 to 21‑23).

Although the trial Court never explicitly drew the "procedural vs. substantive" distinction in its decision, its ruling in fact addressed the procedural defect and denied relief that required it to in effect decide whether the substance of the hearings was constitutionally defective.

The issue now before this court is a constitutional challenge to the procedure involved in Ability to Pay hearings. By granting the injunction sought via this order to show cause and addressing the issue of the appointment of counsel for indigent contemnors facing jail, the court would be addressing a procedural issue but curing a substantive defect as appointed counsel would presumably ensure that the proper standard is applied at Ability to Pay hearings.[2]It is axiomatic that the Court has the authority, indeed the obligation, to utilize its contempt powers to compel compliance with its orders, and especially with child support orders. Neither this suit nor the requested injunction seeks to deprive the Court of this authority.[3]

Children have a right to food and clothing and the Court has the obligation to aggressively protect that right. The incarceration of a parent who has the ability to pay may be a completely constitutional and appropriate method of coercing compliance with a court's Order.

Plaintiffs seek only to have this Court enjoin defendants from disregarding the United States Constitution in the process. The appointment of counsel for defaulted child support obligors facing jail will simply ensure that those who are subjected to a loss of liberty are proper targets for this extreme relief.

Notably, several states that comply with the mandate of the Fourteenth Amendment and appoint counsel have a child support collection rate that meets or exceeds that of New Jersey's.[4]

The classes should be certified and the preliminary injunction should issue forthwith.

ARGUMENT

Point I

THE COURT SHOULD ENTER A PRELIMINARY INJUNCTION COMPELLING DEFENDANT CLASS TO IMMEDIATELY BEGIN COMPLYING WITH THE UNITED STATES CONSTITUTION.

This application for emergent relief is submitted pursuant to R. 4:52-2, which provides for the application of such relief during the pendency of an action.

The standards for the granting or withholding of emergent relief are well established. Generally, the moving party must demonstrate that:

A. There exists a reasonable probability of eventual success on the merits;

B. Irreparable injury would result if the injunction is not granted;

C. a balance of equities in which the damage to the moving party and the absence of an injunction is weighed against the harm to the respondent if the relief is granted. See Crowe v. DeGioia, 90 N.J. 126 (1982) reh'g on remand 203 N.J. Super. 22 (App. Div. 1985) citing Citizens Coach Co. v. Camden Horse R.R. Co., 29 N.J.Eq. 299, 303 (E. & A. 1878); Paternoster v. Shuster, 296 N.J.Super. 544 (App.Div. 1997); Cerro Metal Products v. Marshall, 620 F.2d 964, 972 (3d. Cir. 1980).

It is respectfully submitted that when applying the above standards to this case, particularly when considering the importance of the constitutional issues raised, the Court should grant plaintiffs' request for a preliminary injunction.