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Anne Pasqua, Ray Tolbert, and Michael Anthony, individually and on behalf of all persons similarly situated,   Plaintiffs   vs.   Hon. Gerald J. Council and Hon. F. Lee Forrester, individually and in their official capacity as Judges of the Superior Court, and on behalf of all Superior Court Judges of the State of New Jersey who have in the past conducted Ability to Pay Hearings or who will in the future conduct Ability to Pay hearings;   Hon. Deborah Poritz, individually and in her official capacity as Chief Justice of the Supreme Court of New Jersey;   Hon. Richard J. Williams, individually and in his official capacity as Administrative Director of the Courts of the State of New Jersey   Defendants   ───────────────────

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SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION MERCER COUNTY DOCKET NO.   Civil Action           MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' APPLICATION FOR AN ORDER TO SHOW CAUSE

 

 

David Perry Davis, Esq.

On the brief

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.

 

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.

Twenty-two 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, no person should be deprived of their fundamental, constitutional right to liberty unless they were first notified of their right to counsel, notified of their right to appointed counsel if indigent, and appointed counsel if indigent.  Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).

   The test is not whether a State labels the proceeding "civil" or "criminal." A criminal proceeding that cannot result in a loss of liberty does not trigger the right to be notified nor the right to appointed counsel.  Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

Lassiter was a civil matter and unanimously established the bright line rule that, while due process might require the appointment of counsel in other civil matters, no indigent litigant should be compelled to attend a hearing where their liberty is at stake unless they are represented by appointed counsel.[5]

The overwhelming majority of courts to reach the merits and address the issue have applied the Lassiter holding in the context of appointing counsel for indigent civil contemnors facing potential incarceration. The following jurisdictions, as a result of either state or federal litigation, require the appointment of counsel for indigent contemnors facing incarceration at an enforcement hearing: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, DC, Washington, West Virginia, Wisconsin, and Wyoming.[6]

Florida and Massachusetts appoint attorneys, but not as a result of litigation. In Florida, in spite of case law holding that the appointment of counsel is not required, Andrews v. Walton, 428 So.2d 663 (Fla.1983), the Office of the Public Defender in fact provides representation. See Exhibit F, G. In Massachusetts, counsel have always been appointed as a matter of due process, therefore there is no case law establishing this right nor reviewing the issue. See Exhibit F, G.

Similarly, law review and scholarly articles uniformly conclude that counsel must be appointed for an indigent confronted with a potential loss of liberty at an enforcement hearing. See, e.g., 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 ("Courts have used the due process clauses to provide indigent litigants the right to appointed counsel in defense of their liberty interests in such 'quasi criminal' matters as . . . civil contempt . . . " Id. at 399-400. "The characterization of a proceeding as 'civil' should not frustrate the constitutional mandate of appointed counsel where an indigent litigant is threatened with confinement. The [United States Supreme ] Court took this step in Lassiter v. Department of Social Services, erecting a presumption of a right to appointed counsel "where the litigant may lose his physical liberty if he loses the litigation." Id. at 409-410. See also, The Right to Appointment of Counsel for the Indigent Civil Contemnor Facing Incarceration for Failure to Pay Child Support ─ McBride v. McBride, 16 Campbell L. Rev. 127; The Right to Appointed Counsel for Indigent Civil Litigants, 30 Wm. & Mary L. Rev. 627, 639 (1989).

A small minority of states have held that the Fourteenth Amendment does not require the appointment of counsel for indigents in child support enforcement hearings, reasoning that if a litigant is indigent (and therefore unable to comply with a support order), they will not be incarcerated and, as a result, no liberty interest is at stake and Lassiter's presumption does not apply. Notably, the states to accept this reasoning are generally considered to be extremely conservative. See, Andrews v. Walton, 428 So.2d 663 (Fla.1983) ("There are no circumstances in which a parent is entitled to court‑appointed counsel in a civil contempt proceeding for failure to pay child support because if parent has ability to pay, there is no indigency, and if parent is indigent, there is no threat of imprisonment since trial court cannot make essential finding that indigent parent has ability to pay."), Meyer v. Meyer, 414 A.2d 236 (Me.1980) (same), Duval v. Duval, 114 N.H. 422, 322 A.2d 1 (1974), Kreiger v. Commonwealth, 38 Va.App. 569 (2002) (6-5 en banc decision declining to appoint appellate counsel and discussing Lassiter).

The overwhelming majority of states and every federal appellate court to address the issue have rejected this reasoning. Those courts that specifically address and reject the rationale of Andrews have correctly noted that its reasoning is defective in that it assumes that indigent, unsophisticated litigants will have the legal acumen to understand that this defense must be raised, that the burden under R. 1:10-3 and R. 5:7‑5 is on the party seeking incarceration, and will have the ability to present evidence to demonstrate that they are in fact indigent. Proving these factual and legal issues are precisely why counsel is necessary.

Andrews also relied on a distinction between civil and criminal contempt actions, a distinction specifically disapproved of in New Jersey. See, In the Matter of the Civil Commitment of D.L., 351 N.J. Super. 77 (App.Div.), cert granted 174 N.J. 185 (2002).

Even within the above states, the case law continues to evolve in favor of requiring the appointment of counsel to represent indigent civil litigants facing potential incarceration at an enforcement hearing. Although in 1974 the New Hampshire ruled in Duval that counsel need not be appointed, six months ago their Supreme Court ruled that counsel must be appointed to represent an indigent litigant accused of abuse or neglect under Child Protection Act, a restraint of liberty that is lesser than incarceration. In Re Shelby R., 148 N.H. 237 (2002). Several states that once followed the reasoning of Andrews have since overruled those decisions and now appoint counsel. See McBride v. McBride, 334 N.C. 124, 431 S.E.2d 14 (1993) overruling Jolly v. Wright, 265 S.E.2d 135 (N.C. 1980), Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493 (1990) overruling Sword v. Sword, 249 N.W.2d 88 (Mich. 1976).

Where a state adamantly refused to adhere to Lassiter's mandate, the federal courts have stepped in.[7] See 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) abrogating State ex rel. Dep't of Human Services v. Rael, 97 N.M. 640, 642 P.2d 1099 (1982), Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981) abrogating In re Calhoun, 47 Ohio St.2d 15, 350 N.E.2d 665 (1976). Notably, there are no cases which overrule prior law that establishes a right to court appointed counsel for indigent civil litigants facing incarceration.

New Jersey has never ruled on the issue before this Court in the Fourteenth Amendment context.[8] In the closest case, In the Matter of the Civil Commitment of D.L., 351 N.J. Super. 77 (App.Div.), cert granted 174 N.J. 185 (2002) the Appellate Division rejected the State's argument that counsel need not be appointed on appeal as the matter was civil and not criminal, and concluded that the Fourteenth Amendment requires the appointment of appellate counsel in a civil appeal brought under the Sexually Violent Predator's Act (SVPA). Id. at 88. In so ruling, the Court held:

What distinguishes this case from those mentioned is that a ... classification hearing is a civil, not a criminal, proceeding . . . in civil proceedings where the individual interests at stake ... are both particularly important and more substantial than mere loss of money, due process places a higher burden on the state ... The label affixed to a case, whether it be civil or criminal, is not the dispositive consideration. Rather, we look to the infringement upon the person's due process rights to guide our decision. The importance of counsel in these cases should not be minimized. Id. at 88-91 (internal quotations and citations omitted).

The logical extension of the Court's holding in D.L. is the appointment of counsel at the trial level when the same interests are involved.

Finally, R. 5:3‑4[9] of the Rules Governing the Courts of the State of New Jersey already requires the Court to appoint counsel in a family proceeding "...if the matter may result in the institutional commitment or other consequence of magnitude to any family member... The court shall also assign counsel to represent indigents in family actions where a party is by constitution, state or federal, or by law entitled to counsel..."

Plaintiffs are not asking this Court to extend case law nor to apply a federal constitutional mandate against a backdrop of contrary instructions from the New Jersey Supreme Court. They are not even asking this Court to go as far as the Court in Leonard v. Blackburn went, where a new rule was imposed as a matter of procedural due process. They request nothing more than the enforcement of a right already announced by the Supreme Court in the Court Rules.

In Leonard, the Court denied a portion of the relief sought by plaintiffs as there "was no showing that the defendants departed from established procedure."[10] Here, defendants have deviated from a federal constitutional mandate as interpreted by the Supreme Court in the explicit text of the Rules Governing the Courts of the State of New Jersey.

In sum, plaintiffs' probability of success on the merits is sufficiently high so as to warrant the entry of the requested injunction.

 

 

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

Plaintiffs have been incarcerated in violation of the Fourteenth Amendment to the United States Constitution and remain at risk of again having their federal constitutional rights violated. The unconstitutional deprivation of a fundamental right constitutes irreparable injury. Pulliam v. Allen, 466 U.S. 522, 537, 104 S.Ct. 1970, 1977‑1982, 80 L.Ed.2d 565 (1984), United States v. McLeod, 385 F.2d 734 (CA5 1967).

In City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the United States Supreme Court declared that, in most cases, a plaintiff seeking injunctive relief under � 1983 must allege that he or she will be subject again to the challenged conduct. Absent such allegations, the Court held that a plaintiff does not have standing to seek an injunction and thus, that aspect of the case is not justiciable. Id. at 105.

Exhibit H (standard Notice of Hearing generated by the State of New Jersey) contain an admission that attorneys are not appointed to represent indigent obligors. See also Exhibit C (transcripts of enforcement hearings wherein the court does not inform the obligors of their right to counsel nor are counsel appointed to represent indigent obligors). The constitutional violation is clear and there exists at least the threshold announced in Lyons warranting the issuance of a preliminary

injunction. The constitutional violation is clear and there exists at least the standing threshold announced in Lyons warranting the issuance of a preliminary injunction. See also, Anthony et al v. Council et al, ____ F.3d ____ (3d. Cir. 2003) (Exhibit B at *2-3, Page 7-9, finding that plaintiffs have standing to raise this issue in federal court but abstaining on Younger v. Harris abstention grounds).

In the matter before this Court, plaintiffs have alleged systematic conduct of incarcerating indigent child support obligors in violation of the Fourteenth Amendment to the United States Constitution. Unlike the conduct complained of in Lyons, defendants herein are subject to established procedures which compel them to attend hearings which can result in their incarceration.

Exploring the identical issue (under the same fact pattern), courts have issued injunctions identical to the one sought herein under the standard set forth by the Supreme Court in Lyons. See Lake v. Speziale, 580 F.Supp. 1318 (D.Conn.1984), Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981).

 

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

No interest asserted by defendants can outweigh the constitutional mandate that the Fourteenth Amendment to the United States Constitution be adhered to.

The only possible countervailing interest would be if there were evidence that appointing counsel for indigent civil litigants caused a reduction in the child support collection rate. This has not been the experience of other jurisdictions who adhere to the Constitution and appoint counsel when a possible deprivation of liberty is involved. See footnote 4 infra, Federal Office of Child Support Enforcement: preliminary data from the 2000 Census.

The Preliminary Injunction should issue forthwith.

 

Point II

THE CLASSES SHOULD BE CERTIFIED PURSUANT TO RULE 23(A) AND 23(B)(2).

 

The classes should be certified. The named plaintiffs bring this suit individually and on behalf of all residents of the State of New Jersey who have been, currently are, or will in the future be in arrears under support orders issued by the Superior Court and, as a result, are subject to being compelled to attend an enforcement hearing where their liberty will be in jeopardy. See complaint. The named defendants represent a class of all Superior Court judges who (as to declarative relief) have in the past conducted Ability to Pay Hearings or who (as to injunctive relief) will in the future conduct Ability to Pay hearings, the Supreme Court of New Jersey and the Administrative Office of the Courts.

This is a proper class action. Rule 4:32-1(a) requires that, as to the class: (1) the persons affected are so numerous that joinder of all parties is impracticable (numerosity); (2) there are common questions of law and fact (commonality); (3) the claims and defenses of the representative plaintiffs are representative of those of the class (typicality); (4) the representative plaintiffs will fairly and adequately protect the interests of the class (adequacy); 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.

In Leonard v. Blackburn, the Court denied class certification under analogous circumstances. The matter before this Court can be distinguished from Leonard on the elements required for class certification.

 

1. Numerosity

A. As to numerosity of plaintiff class

The complaint names three plaintiffs "individually and on behalf of all persons similarly situated." In Leonard v. Blackburn, relying on a representation by the Mercer County Probation Department, the trial Court found that there were in excess of 50,000 enforcement hearings last year (Exhibit I at 7-8).

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.), cert 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).

As to numerosity, the Court in Leonard stated during oral argument:

You've identified -- there are thousands and thousands of cases every year, and you've extracted or identified a very small number. There's no evidence before the Court that this is something that involves a large number of individuals. (Exhibit E, 1T 21-8 to 21‑23).

In the matter now before this Court, the complaint identifies not "a very small number" of plaintiffs, but a class consisting of all 50,000 citizens who will find themselves the subject of enforcement hearings.

It is respectfully submitted that plaintiffs satisfy the numerosity requirement for class certification.

 

B. As to numerosity of defendant class

As with the plaintiff class, the defendant class consists of the named defendants "individually and on behalf of all superior court judges of the state of New Jersey." As the Court noted in Leonard, there are well over 150 Superior Court judges assigned to the Family Part. Moreover, any Superior Court judge can be temporarily assigned to any division of the Superior Court on the directive of the Supreme Court.

While it might be possible to serve each and every sitting Family Part judge individually, to establish the numerosity element, the Court is not required to find 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), Saldana v. City of Camden, 252 N.J.Super. 188, 193 (App.Div.1991) (potential class of 81 members sufficient to establish numerosity), Gross v. Johnson v. Johnson, 303 N.J.Super. 336 (Law.Div. 1997), Delgozzo v. Kenny, 266 N.J.Super. 169, 181 (App.Div.1993).

Moreover, where, as here, the defendants enjoy individual immunity and are represented by the same entity (the office of the Attorney General), a class action is the appropriate vehicle for raising a civil rights challenge to an ongoing practice.

Finally, civil rights challenges to judicial practices have routinely been certified as a class in a wide variety of contexts and, specifically, in the State and Federal cases that address the precise issue before this Court. See, e.g., Lake v. Speziale, 580 F.Supp. 1318 (D.Conn. 1984), 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).

 

2. Commonality (both as to plaintiff and defendant classes)

The relevant questions of law and fact are common as to all class members: each member of the plaintiff class, both named and un-named, has been deprived of rights granted them by the United States Constitutions. Each Superior Court judge has acted in like manner pursuant to procedures promulgated by the New Jersey Supreme Court.

In Leonard, the Court found that there was no commonality amongst the proposed plaintiff class. Again, the case now before this Court is distinguishable. In Leonard, the Court stated "But there -- the commonality is really -- every case is fact sensitive, is different" (T18-8 to 18-12), and in its written decision, "With respect to commonality, the plaintiffs acknowledge 'the precise underlying facts surrounding each case may differ.' As a result, there is no commonality amongst the proposed plaintiff class."

In order to find commonality, the court need find only that "there are common questions of law and fact." When determining whether a putative class has established sufficient commonality, the focus should not be on whether there are differences between individual cases but on whether the class as a whole raises "at least one common question of law or fact." Gross v. Johnson & Johnson‑Merck Consumer Pharms. Co., 303 N.J.Super. 336, 342 (Law Div.1997) (Emphasis added). See also, In re Cadillac V8‑6‑4 Class Action, 93 N.J. 412 (1983), Philip Steven Fuoco, Robert F. Williams, Class Actions in New Jersey State Courts, 24 Rutgers L.J. 737, 752 (1993).

In finding a lack of commonality in Leonard, the Court was faced with a situation where it was being asked to address the substance of what occurred at individual ability to pay hearings and whether the proper legal standard was being applied. Although acknowledging serious concerns as to the level of inquiry at Ability to Pay hearings, the Court opined that it would be exceeding its authority were it to judge the adequacy of the inquiry made by fellow Superior Court Judges (Exhibit E, 1T 21-14 to 21-17). Hence, the Court focused on the differences between the individual cases and found that these differences outweighed the common questions of law and fact.

By contrast, the challenge in the matter before this Court is to the procedure being employed and there is a complete commonality of interest among both the proposed plaintiff and defendant classes.

 

3. Typicality (both as to plaintiff and defendant classes)

A claim satisfies the typicality requirement for purposes of class certification if it arises from the same event or course of conduct which has given rise to claims of other class members. In re Cadillac V8‑6‑4 Class Action, 93 N.J. 412, 425 (1983).

The complaint alleges a course of conduct - that plaintiffs are being systematically denied rights guaranteed to them by the United States Constitution. Plaintiffs are entitled to every reasonable inference that could be drawn from the complaint. Delgozzo v. Kenny, 266 N.J.Super. 169, 181 (App.Div.1993) (quoting Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976)). The Court is required to accept the allegations as true when determining this issue.

It is respectfully suggested that both the proposed plaintiff and defendant classes have exceeded the minimum requirement for typicality.

 

4. Adequacy (both as to plaintiff and defendant classes)

The last requirement of R. 4:32‑1(a) is a showing that the parties will fairly and adequately represent the interests of the class. "Adequacy is presumed in New Jersey courts, and the burden is on the opposing party to demonstrate that the proposed representation will be inadequate." Delgozzo v. Kenny, 266 N.J.Super. 169, 181 (App.Div.1993).

Again, the interests asserted by the putative class are identical, and the named plaintiffs present compelling examples of why the constitutional requirement of appointed counsel must be adhered to.

The standard on this issue has been clearly established by case law. The burden to disprove adequacy is on defendants, who will have to rebut the presumption of adequacy, with "[t ]he court taking the substantive allegations of the complaint as true". Delgozzo v. Kenny, 266 N.J.Super. 169, 181 (App.Div.1993) (quoting Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976)). In the event adequacy is contested, the court is required to give plaintiffs "every favorable view" of plaintiffs' complaint and the record. Riley v. New Rapids Carpet Ctr., 61 N.J. 218, 223 (1972). Again, in light of the transcripts, affidavits, and admissions contained in the record, it is respectfully suggested that plaintiffs far exceeded the minimum requirement for adequacy.

 

5. R. 4:32-1(b)

After examining the requirements of numerosity, commonality, typicality, and adequacy, the court is required to examine whether the putative classes satisfy at least one of the requirements contained in subsection (b) of the Rule. Plaintiffs maintain that they satisfy all of the provisions contained in 4:32-1(b), not simply one of requirements.

Certainly, plaintiffs have sufficiently alleged that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."

The classes should be certified by the Court.

CONCLUSION

For the above reasons, the classes should be certified, the filing fee should be waived, and the requested preliminary injunction should issue forthwith.

 

 

 

 

Respectfully submitted this day of February, 2003

 

 

 

____________________________

David Perry Davis, Esq.

 

The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

(732) 274‑2050 (fax)

Attorney for plaintiff class

─────────────────────

Anne Pasqua, Ray Tolbert, and Michael Anthony, individually and on behalf of all persons similarly situated,   Plaintiffs   vs.   Hon. Gerald J. Council and Hon. F. Lee Forrester, in their official capacity as Judges of the Superior Court, and on behalf of all Superior Court Judges of the State of New Jersey who have in the past conducted Ability to Pay Hearings or who will in the future conduct Ability to Pay hearings,   Hon. Deborah Poritz, in her official capacity as Chief Justice of the Supreme Court of New Jersey,   Hon. Richard J. Williams, in his official capacity as Administrative Director of the Courts of the State of New Jersey,   Defendants   ───────────────────	:::::::::::::::::::::::::::::::::::	SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION MERCER COUNTY DOCKET NO.   Civil Action                     ORDER TO SHOW CAUSE

THIS MATTER having been opened to the Court on application of plaintiff class, David Perry Davis, Esq., appearing, for an orderto show cause, and notice having been given to defendants, Attorney General of the State of New Jersey, attorney for defendants, Diane Lamb, Esq., DAG, appearing, and the Court having read and considered the certification annexed hereto, and it appearing therefrom that substantial and irreparable harm shall occur in the absence of such relief and before a formal Notice of Motion can be filed and heard,

IT IS, on this day of , 2003 , hereby Ordered that defendants shall show cause on the          day of             , 2003 , at : before the Hon.                       , J.S.C., located at the Superior Court of New Jersey, 175 South Broad Street, Trenton, why an Order should not be entered:

1. Enjoining the defendant class from compelling any member of plaintiff class to attend a hearing where they face a potential loss of liberty without first notifying plaintiffs of their right to counsel;

 

2. Enjoining the defendant class from compelling plaintiff class to attend any hearing where they face a potential loss of liberty without first notifying indigent plaintiffs of their right to appointed counsel;

 

3. Enjoining the defendant class from compelling any indigent member of plaintiff class to attend any hearing where they face a potential loss of liberty without first appointing counsel to represent them;

 

4. Granting a preliminary injunction compelling the defendants to review, within 72 hours, all currently incarcerated plaintiffs pending (1) plaintiff class being notified of their right to counsel, (2) indigent members of plaintiff class being notified of their right to appointed counsel, (3) indigent members of plaintiff class being appointed counsel;

 

5. Certifying the proposed classes;

 

 

 

 

IT IS FURTHER ORDERED that, pending the return date of the within order to show cause:

 

1. The plaintiff and defendant classes are provisionally certified;

 

2. The defendant class is hereby enjoined from compelling any member of plaintiff class to attend any hearing where they face a potential loss of liberty without first notifying plaintiffs of their right to counsel;

 

3. The defendant class is hereby enjoined from compelling indigent members of plaintiff class to attend any hearing where they face a potential loss of liberty without first notifying indigent members of plaintiff class of their right to appointed counsel;

 

3. The defendant class is hereby enjoined from compelling indigent members of plaintiff class to attend any hearing where they face a potential loss of liberty without first appointing counsel to represent them;

 

4. Defendants shall, within 72 hours, immediately review the cases of all currently incarcerated members of plaintiff class and shall comply with the above injunctions during said hearings;

 

IT IS FURTHER ORDERED:

 

That defendants may move to modify or dissolve the within restrains on             days notice to counsel for plaintiff class.

 

That counsel for defendants shall file and serve any opposing papers no later than ____________, and plaintiffs' reply, if any, shall be filed and served no later than              .

 

 

 

 

______________________________

Hon. , JSC

 

The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

(732) 274‑2050 (fax)

Attorney for plaintiff class

─────────────────────

Anne Pasqua, Ray Tolbert, and Michael Anthony, individually and on behalf of all persons similarly situated,   Plaintiffs   vs.   Hon. Gerald J. Council and Hon. F. Lee Forrester, in their official capacity as Judges of the Superior Court, and on behalf of all Superior Court Judges of the State of New Jersey who have in the past conducted Ability to Pay Hearings or who will in the future conduct Ability to Pay hearings,   Hon. Deborah Poritz, in her official capacity as Chief Justice of the Supreme Court of New Jersey,   Hon. Richard J. Williams, in his official capacity as Administrative Director of the Courts of the State of New Jersey,   Defendants   ───────────────────	:::::::::::::::::::::::::::::::::::	SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION MERCER COUNTY DOCKET NO.   Civil Action                     ORDER TO SHOW CAUSE

THIS MATTER having been opened to the Court on application of plaintiff class, David Perry Davis, Esq., appearing, for an orderto show cause, and notice having been given to defendants, Attorney General of the State of New Jersey, attorney for defendants, Diane Lamb, Esq., DAG, appearing, and the Court having read and considered the certification annexed hereto, and it appearing therefrom that substantial and irreparable harm shall occur in the absence of such relief and before a formal Notice of Motion can be filed and heard,

IT IS, on this 24 day of February , 2003 , hereby Ordered that defendants shall show cause on the    28   day of    March  , 2003 , at 9 : 00 a.m. before the Hon.   Linda R. Feinberg,  , A.J.S.C., located at the Superior Court of New Jersey, 175 South Broad Street, Trenton, why an Order should not be entered:

1. Enjoining the defendant class from compelling any member of plaintiff class to attend a hearing where they face a potential loss of liberty without first notifying plaintiffs of their right to counsel;

 

2. Enjoining the defendant class from compelling plaintiff class to attend any hearing where they face a potential loss of liberty without first notifying indigent plaintiffs of their right to appointed counsel;

 

3. Enjoining the defendant class from compelling any indigent member of plaintiff class to attend any hearing where they face a potential loss of liberty without first appointing counsel to represent them;

 

4. Granting a preliminary injunction compelling the defendants to review, within 72 hours, all currently incarcerated plaintiffs pending (1) plaintiff class being notified of their right to counsel, (2) indigent members of plaintiff class being notified of their right to appointed counsel, (3) indigent members of plaintiff class being appointed counsel;

 

5. Certifying the proposed classes;

 

 

 

IT IS FURTHER ORDERED that, pending the return date of the within order to show cause:

 

1. The plaintiff and defendant classes are provisionally certified;

 

2. The defendant class is hereby enjoined from compelling any member of plaintiff class to attend any hearing where they face a potential loss of liberty without first notifying plaintiffs of their right to counsel;

 

3. The defendant class is hereby enjoined from compelling indigent members of plaintiff class to attend any hearing where they face a potential loss of liberty without first notifying indigent members of plaintiff class of their right to appointed counsel;

 

3. The defendant class is hereby enjoined from compelling indigent members of plaintiff class to attend any hearing where they face a potential loss of liberty without first appointing counsel to represent them;

 

4. Defendants shall, within 72 hours, immediately review the cases of all currently incarcerated members of plaintiff class and shall comply with the above injunctions during said hearings;

 

IT IS FURTHER ORDERED:

 

That defendants may move to modify or dissolve the within restrains on             days notice to counsel for plaintiff class.

 

That counsel for defendants shall file and serve any opposing papers no later than March 17, 2003 , and plaintiffs' reply, if any, shall be filed and served no later than    March 24, 2003 and oral argument shall be held on    March 28, 2003 , at 9:00 a.m.

 

 

 

_________________________________

Hon. Linda R. Feinberg AJSC