UNITED
STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANNE PASQUA, RAY TOLBERT, and :
MICHAEL ANTHONY, Individually and :
on behalf of all persons similarly situated, :
: Civ. No. 00-2418 (GEB)
Plaintiffs, :
:
v. :
: MEMORANDUM OPINION
HONORABLE GERALD J. COUNCIL, :
HONORABLE F. LEE FORRESTER, :
HONORABLE DEBORAH PORITZ, and :
HONORABLE RICHARD J. WILLIAMS :
:
Defendants. :
:
BROWN, District Judge
This matter comes before the Court upon defendants' motion to dismiss plaintiffs' complaint, and upon plaintiffs' cross-motions for class certification and a preliminary injunction. Plaintiffs raise claims pursuant to 42 U.S.C. § 1983 alleging a deprivation of the right to counsel in state court child support enforcement proceedings. For the reasons discussed below, this Court denies defendants' motion to dismiss. Instead this Court will abstain pursuant to the Younger doctrine. In light of this Court's abstention from rendering a decision on the merits, plaintiffs' cross-motions for certification of plaintiff and defendant classes; and for a preliminary injunction are denied.
I.
BACKGROUND
Plaintiffs
are all currently in arrears for child support payments in amounts that have
already been determined by the Superior Court of New Jersey Chancery Division. See
Plaintiffs' Amended Complaint (“Pls.' Compl.”) ¶ 1. Plaintiffs claim that being
in arrears places them under a “constant threat of incarceration through
procedures which deprive them of rights guaranteed by the Fifth and Fourteenth
Amendments of the United States Constitution.”See
footnote 11 See id.
Plaintiffs also allege a violation of Article I, paragraph 8 of the New Jersey
State Constitution. See id. ¶ 49. Plaintiffs claim they are members of a
class of similarly situated persons. See id. ¶ 2. This Court has
jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3). See id. ¶ 3.
A. Parties
1. Anne Pasqua
On January 10, 1999, the Superior
Court of New Jersey, Chancery Division, ordered child support in the amount of
$160.00 per week for Nicholas Pasqua, the child of plaintiff, Anne Pasqua. See
id. ¶ 16. At some point, plaintiff Pasqua became indigent and unable to
meet her weekly child support obligation. See id. ¶ 17. Plaintiff
alleges she was unaware that she could apply to the court in order to have her
support obligations modified. See id. In January 2000, plaintiff Pasqua
was found to be in arrears with respect to her support obligations. See id.
¶ 18. In April 2000, a warrant was issued for plaintiff's arrest, and she was
arrested on May 15, 2000. See id. ¶ 19. On May 18, 2000, Superior Court
Judge F. Lee Forrester presided over plaintiff's hearing, setting a “release
amount” totaling $3,400. See id. ¶ 20. Plaintiff alleges she was never
informed of her right to have counsel appointed for her when and if she was
found to be indigent. See id. Plaintiff was incarcerated at the Mercer
County Corrections Center, and was released on June 1, 2000 without making
payment toward her arrearage. See id. ¶ 21. Plaintiff is still in
arrears on her child support obligations, and also alleges she remains
indigent. See id. ¶ 22. Finally, plaintiff alleges there is a “great
likelihood that she will again be deprived of her constitutional rights.” See
id.
2. Ray Tolbert
Plaintiff Ray Tolbert is subject
to a child support obligation, established in 1995, in the amount of $200 per
week for his children Erik and Erika Brookins. See id. ¶ 23. Plaintiff
Tolbert is also required to pay $25.00 per week to an arrears-only account. See
id. Plaintiff alleges he became indigent and therefore unable to comply
with his child support obligations. See id. ¶ 24. Plaintiff alleges he
was unaware of his ability to petition the Superior Court of New Jersey for
modification of his child support obligations. See id. A warrant for
plaintiff's arrest was issued in February 2000, and he was arrested on March
27, 2000. See id. ¶ 25. On April 13, 2000, Superior Court Judge Gerald
J. Council presided over plaintiff's hearing, and found plaintiff to be in
arrears in the amount of $116,261.56. A “release amount” of $10,000 was set at
that time, and plaintiff alleges he was not informed of his right to have
counsel appointed for him, if he was found to be indigent. See id. ¶ 26.
Plaintiff was incarcerated in the Mercer County Corrections Center, and
released on June 7, 2000 pursuant to state appellate court order which is “not
related to this suit.” See id. ¶¶ 27, 28. On June 8, 2000, a hearing was
held regarding plaintiff's arrearage on his child support payments. See id.
¶ 29. Plaintiff contends he was not informed of his right to have counsel
appointed to him, should he be found to be indigent. See id. Although
plaintiff was originally re-incarcerated at the June 9, 2000 hearing, the
Probation Department agreed to place plaintiff in a work/training program.See
footnote 22 See id. ¶ 30. Plaintiff continues to be in
arrears on his child support obligation, and alleges “there is great likelihood
that he will again be deprived of his constitutional rights.” See id. ¶
31.
3. Michael Anthony
In 1991, plaintiff incurred a
support obligation in the amount of $85 per week for his child Gina Powell, in
addition to a 1987 obligation in the amount of $60 per week for his child Lisa
Anthony. See id. ¶ 32. Plaintiff alleges he has become indigent and
consequently is unable to meet his child support obligations. See id. ¶
33. In the fall of 1999, plaintiff was found to be in arrears in the amount of
$49,234 and a warrant issued for plaintiff's arrest. See id. ¶¶ 34, 35.
Plaintiff was arrested on April 19, 2000 and incarcerated at the Mercer County
Corrections Center. See id. ¶¶ 35, 36. Plaintiff appeared before the
Honorable Gerald J. Council on May 11, 2000 and alleges he was not informed at
that time that if he was found to be indigent, he was entitled to appointed
counsel. See id. ¶ 37. Plaintiff was released on May 11, 2000 after
payment of $125.00 toward his arrears, Judge Council instructed if plaintiff
missed two further payments, another warrant would be issued for his arrest. See
id. ¶ 38. Plaintiff alleges he is still in arrears because he is unable to
pay the court ordered $145.00 per week. See id. ¶ 39.
B. Claims
All plaintiffs claim they
continue to be in arrears of their child support payments, and that pursuant to
the New Jersey Court Rules promulgated by the New Jersey Supreme Court, all
plaintiffs and the members of the proposed class, “will again be violated by
the defendant class.” See id. ¶ 40. Plaintiffs allege New Jersey Court
Rules including 1:10-3, 5:7-5, and 5:25-3 are in full force and effect, and
they are uniformly and routinely applied in a similar manner to plaintiffs and
all other members of the proposed class. See id. ¶ 41. Further,
plaintiffs allege the proposed defendant class acted pursuant to “statute,
ordinance, regulation, custom or usage of the
State of New Jersey” when they ordered the incarceration
of the plaintiffs. See id. ¶ 42.
1. Failure to Inform as to
Constitutional Rights
Plaintiffs allege that Judges
Council and Forrester failed to inform plaintiffs of their right to retain
counsel prior to their appearance at the hearings held after their arrests
pursuant to warrants for failure to make child support payments. See id.
¶ 43. Plaintiffs claim this failure to inform plaintiffs of their right to
counsel constituted “a violation of plaintiffs' right [sic] to Due Process
under the Fifth and Fourteenth Amendments to the United States Constitution.” Id.
¶ 44. Plaintiffs also allege this failure to inform constituted a violation of
plaintiffs rights secured by Article I, paragraph 8 of the New Jersey
Constitution. See id. ¶ 46. Included under Count One, is a claim related
to the failure of Judges Council and Forrester to advise plaintiffs of their
rights to have counsel appointed to them if they were indigent and if a
possible result of the hearing was deprivation of their liberty. See id.
¶ 47. Plaintiffs claim this failure constituted a violation of their “right to
Due Process under the Fifth and Fourteenth Amendments,” as well as plaintiffs
rights secured by Article I, paragraph 8 of the New Jersey Constitution. Id.
¶ 48, 49. Plaintiffs allege the procedures employed by Judges Council and
Forrester were promulgated by Chief Justice Poritz of the Supreme Court of New
Jersey, “and/or by Judge Williams, in his official capacity as Administrative
Director of the Courts.” Id. ¶ 50.
2. Subjecting to Potential
Incarceration Without Appointing Counsel
Plaintiffs claim they were
subject to hearings that could have resulted in a deprivation of their liberty
without being notified of their right to appointed counsel if they were found
indigent. See id. ¶ 51. Plaintiffs allege this conduct violated their
rights to Due Process under the Fifth and Fourteenth Amendments to the United
States Constitution. See id.
3. Subjecting to Consequence
of Magnitude Without Appointing Counsel
Plaintiffs charge they were
compelled to participate in hearings which could have resulted in “a
consequence of magnitude” and pro bono counsel was not appointed to
represent any of the plaintiffs during these proceedings. See id. ¶ 52.
Plaintiffs claim this deprivation violated their “substantive rights under
Article I, paragraph 8 of the New Jersey Constitution.” Id.
C. Relief
Plaintiffs request declaratory
relief acknowledging their rights were violated upon the failure of the
defendants to inform them of their right to counsel and for failure to appoint
counsel. See id. at 14-15. Plaintiffs request injunctive relief
encompassing the following:
1) preventing the incarceration
of plaintiffs and all those similarly
situated without first notifying
them of their right to counsel;
2) preventing the incarceration
of plaintiffs and all those similarly
situated without informing them
of their right to appointed counsel
if they are indigent;
3) requiring the appointment of
counsel for indigent child support obligors whenever the possible outcome is
incarceration or a “consequence
of magnitude;”
4) requiring the “defendant class
to immediately review the cases
of all persons now incarcerated
in violation of their constitutional rights.”
See id. at 16-17.
Finally, plaintiffs request attorney's fees and reimbursement for the cost of
the lawsuit. See id. at 17.
II. DISCUSSION
A. Standard for Motion to Dismiss
A motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6) may be granted only if, accepting all well pleaded
allegations in the complaint as true, and viewing them in the light most
favorable to plaintiff, plaintiff is not entitled to relief. See Bartholomew
v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986); Angelastro v.
Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir.), cert.
denied, 474 U.S. 935 (1985). The Court may not dismiss a complaint unless
plaintiff can prove no set of facts that would entitle the plaintiff to relief.
See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Angelastro,
764 F.2d at 944. “The issue is not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to support the claims.” Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974). In setting forth a valid claim, a
party is required only to plead “a short plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).
Under Rule 12(b)(6), the Court
must accept the allegations in the complaint as true, and draw all reasonable
factual inferences in favor of the plaintiff, thus a motion to dismiss may only
be granted] only if no relief could be granted under any set of facts that
plaintiff could prove. See Unger v. National Residents Matching Program,
928 F.2d 1392, 1394-95 (3d Cir. 1991)); see also Dykes v. Southeastern
Pennsylvania Transp. Auth., 68 F.3d 1564, 1565, n. 1 (3d Cir. 1995); Piecknick
v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255 (3d Cir. 1994); Jordan
v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.
1994). A complaint may be dismissed for failure to state a claim where it
appears beyond any doubt that no relief could be granted under any set of facts
which could be proved consistent with the allegations. See Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984). However, legal conclusions
made in the guise of factual allegations are given no presumption of
truthfulness. See Papasan v. Allain, 478 U.S. 265, 286 (1986); see
also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d
Cir.1997) ("[A] court need not credit a complaint's 'bald assertions' or
'legal conclusions' when deciding a motion to dismiss").
A district court reviewing the
sufficiency of a complaint has a limited role. "The issue is not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to offer
evidence to support his [or her] claims." Scheuer, 416 U.S. at 236.
Generally, when conducting such an inquiry, material beyond the pleadings
should not be considered. See In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir.1997); Pension Benefit Guar. Corp. v. White
Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.), cert. denied, 510
U.S. 1042 (1994); Gannon v. Continental Ins. Co., 920 F. Supp. 566, 574
(D.N.J.1996).
Defendants have raised several
grounds in support of their motion to dismiss plaintiffs' complaint. First,
defendants argue the complaint should be dismissed because the suit is barred
by Eleventh Amendment Immunity. See Memorandum of Law in Support of
Defendants' Motion to Dismiss (“Defs.' Mem.”) at 2. Second, defendants contend
they are absolutely immune from suit through the doctrine of judicial immunity.
See id. at 4. Finally, defendants argue that the claims raised against
Chief Justice Poritz and the Honorable Richard J. Williams should be dismissed
under the doctrine of qualified immunity. Further, in their reply brief in
further support of the motion to dismiss, defendants raised the applicability
of abstention. See Memorandum of Defendants in Reply (“Defs.' Reply”) at
1. Plaintiffs simply argue that abstention is not appropriate for the reasons
expressed in the Lake v. Speziale, 580 F. Supp. 1318 (D. Conn. 1984), Johnson
v. Zurz, 596 F. Supp. 39 (N.D. Ohio 1984), and Mastin v. Fellerhoff, 526
F. Supp. 969 (S.D. Ohio 1981) opinions.
B. Applicability of Younger Abstention
In Younger v. Harris, 401
U.S. 37, 44 (1971), the Supreme Court held that a federal court should not
restrain a pending state criminal prosecution when the criminal defendant has
an adequate state vehicle through which to assert his federal rights.” Younger
v. Harris . . . and its progeny espouse a strong federal policy against
federal-court interference with pending state judicial proceedings absent
extraordinary circumstances.” Middlesex County Ethics Comm. v. Garden State
Bar Assoc., 457 U.S. 423, 431 (1982). This policy is based on notions of
“comity” and counsels a “proper respect for state functions.” See id.
(quoting Younger, 401 U.S. at 44). Specifically, the Younger
Court, although dealing with a contested criminal matter, dictated the federal
court should abstain “so that the state is afforded the opportunity to
interpret its rules in the face of a constitutional challenge.” Middlesex
County Ethics Comm., 457 U.S. at 429. Essentially, abstention is based upon
the theory that a litigant should first present and rely upon any federal
arguments made in the state court, unless it plainly appears that the state
courts would not afford the litigant adequate protection. See id. at
435.
The Younger abstention has
been extended to include certain pending civil and administrative proceedings,
as well as criminal proceedings. See Pennzoil Co. v. Texaco, Inc., 481
U.S. 1, 11-13 (1987) (applying Younger abstention to civil action
brought to enjoin enforcement of state court judgment); Middlesex County
Ethics Comm., 457 U.S. at 437 (applying Younger abstention to state
bar disciplinary proceedings); Trainor v. Hernandez, 431 U.S. 434, 447
(1977) (applying Younger abstention to state civil enforcement
proceeding); Nernberg v. City of Pittsburgh, 50 F. Supp.2d 437, 440
(W.D. Pa. 1999) (applying Younger abstention to civil enforcement
proceeding); Weinstein v. Lasover, Civ. Nos. 93-1552 and 93- 4223, 1993
WL 475505 (E.D. Pa. Nov. 12, 1993) (applying Younger abstention to civil
action challenging pending state domestic relations action).
The United States Court of
Appeals for the Third Circuit enumerated three elements that must be present
before a court can apply Younger abstention to an action. See FOCUS
v. Allegheny County Court of Common Pleas, 75 F.3d 834, 843 (3d Cir. 1996).
First, there must be an ongoing state judicial proceeding. See Port Auth.
Police Benevolent Assoc. v. Port Auth. of New York and New Jersey Police Dep't,
973 F.2d 169, 173 (3d Cir. 1992) (quoting Shall v. Joyce, 885 F.2d 101,
106 (3d Cir. 1989)). Second, the pending state proceeding must implicate
important state interests. See Port Auth. Police Benevolent Assoc.,
973 F.2d at 173. Finally, the state proceedings must afford an adequate
opportunity to assert federal claims. See id. In fact, the appropriate
focus of inquiry upon consideration of abstention pursuant to Younger,
is whether “the state proceeding provides an adequate forum for the resolution
of the federal claims that have been asserted.” Ford Motor Co. v. Insurance
Com'r of Penn, 874 F.2d 926, 932 (3d Cir. 1989). Abstention is not
appropriate if the plaintiff can establish that “(1) the state proceedings are
being undertaken in bad faith or for the purposes of harassment or (2) some
other extraordinary circumstances exist, such as proceedings pursuant to a
flagrantly unconstitutional statute.” See Schall, 885 F.2d at 106. A
district court's decision to exercise or decline jurisdiction based on the
invocation of a Younger abstention is reviewed for an abuse of
discretion. See id. In determining whether this Court should abstain
pursuant to the Younger doctrine, the Court must accept as true
plaintiff's allegations in the complaint. See id.
1. Pending
Plaintiffs allege that they
remain indigent and are still unable to pay the required child support. See Pls.'
Compl. ¶¶ 5-7. Plaintiffs also allege that state law provides them the right to
apply to the issuing court to have the support orders modified, although they
were not aware of such procedures at the time of their contempt hearings. See
id. ¶ 17. Plaintiffs acknowledge they are “under support orders issued by
the Chancery Division, Family Part of the Superior Court,” and that all three
named plaintiffs are currently in arrears on those child support orders. See
id. ¶¶ 12, 22, 31, 39. Defendants contend the continuing operation of the
New Jersey State Court child support orders constitutes “on-going judicial
procedures.” Defs.' Reply at 5. Pursuant to statutory law, a state that issues
a child support order retains continuing, exclusive jurisdiction over that
order. See Teare v. Bromley, 332 N.J. Super. 381, 386 (Ch. Div. 2000)
(discussing jurisdictional elements of the Uniform Interstate Family Support
Act adopted March 5, 1998). Given plaintiffs admission that the state court may
once again seek to enforce its own order with respect to the plaintiffs'
continued arrears, and the statutory jurisdiction granted the state courts over
child support orders, it appears plaintiffs are subject to pending state court
procedures. Therefore the first prong of the Younger abstention test has
been satisfied.
2. Implication of Important
State Interests
The United States Supreme Court
has already decided a highly analogous case to the one at bar. As such, Judice
v. Vail, 430 U.S. 327 (1977) provides the most relevant application of the Younger
doctrine for the purposes of the instant motion. The Judice plaintiffs
were also state court litigants who were subject to coercive contempt
proceedings for failure to comply with duly issued court orders. See id.
at 329-30. The plaintiffs alleged the contempt procedures employed by the state
court judges, which led to imprisonment, violated the Fourteenth Amendment to
the Constitution. See id. at 330. Without raising their concerns for the
constitutionality of the procedures before the state courts, the plaintiffs
sought an injunction against the enforcement proceedings. See id. The
United States Supreme Court applied the Younger abstention doctrine in
that case because the plaintiffs sought to enjoin an important state interest,
the regular operation of the judicial system. See id. at 335. Although
the contempt proceedings in Judice served to vindicate the rights of
private litigants, the Court clarified that the procedure “stands in aid of the
authority of the judicial system.” Id. at 336, n.12. The Court cautioned
that enjoining the state's contempt procedures “can readily be interpreted 'as
reflecting negatively upon the state courts' ability to enforce constitutional
principles.'” Id. (quoting Huffman v. Pursue, Ltd., 420 U.S. 592,
604 (1975)).
In addition, federal courts are
very reluctant to become involved in domestic relations matters. See
Anastasi v. Anastasi, 532 F. Supp. 720, 723 (D.N.J. 1982) (reviewing the
history of application of the “domestic relations exception” to a diversity
case alleging breach of a quasi- marital contract). State courts have an
important interest in matters involving “divorce, alimony, child custody and
support for spouse and child.” See id. at 724. Specifically, child
support arrangements, which are often subject to modification upon changed
conditions, should be handled by state courts because they have developed an
expertise in such areas. See id. at 722 (quoting Solomon v. Solomon,
516 F.2d 1018, 1025 (1975)); see also New Jersey Court Rule 5:6A
(setting forth specific guidelines for determining child support obligations).
There is no doubt that aside from the state court's interest in vindicating its
authority, New Jersey also has a particularly strong interest in maintaining
jurisdiction over the entire scope of its child support orders, including their
enforcement. See Teare, 332 N.J. Super. at 390. Therefore, it is clear
that New Jersey has two important state interests which are implicated by
plaintiffs' lawsuit, and thus the second prong of Younger has been met.
3. Adequate Opportunity in
State Proceedings to Raise Federal Claims
New Jersey Courts are authorized
to modify child support orders “'as the circumstances of the parties and the
nature of the case require.” Halliwell v. Halliwell, 326 N.J. Super.
442, 448 (App. Div. 1999). Child support obligations are always subject to
review upon a showing of “changed circumstances.” Id. Plaintiffs do not
allege that the argument for modification due to “changed circumstances” cannot
be raised at an enforcement hearing. Instead they argue that at the time of
their contempt hearings, they were unaware of their ability to seek such
modification. See Pl.'s Compl. ¶ 17. It is also clear that “state courts
have the solemn responsibility equally with the federal courts to safeguard
constitutional rights.” See Trainor, 431 U.S. at 443. There is no
allegation in plaintiffs' complaint to indicate that New Jersey Courts would be
unwilling or unable to justly evaluate plaintiffs' federal constitutional
claims. In fact, as acknowledged in plaintiffs' complaint, the Supreme Court of
New Jersey has clearly indicated its support for providing indigent defendants
counsel “whenever the particular nature of the charge is such that imprisonment
in fact or other consequence of magnitude is actually threatened or is a
likelihood of conviction.” Rodriguez v. Rosenblatt, 58 N.J. 281, 295
(1971). There is no evidence that the New Jersey Courts would not fairly
provide an opportunity for plaintiffs to raise and adjudicate all of their
constitutional claims, both state and federal, in the course of the state
enforcement proceedings. Further, New Jersey case law indicates that the courts
would be receptive to plaintiffs allegations, thus the third prong for
abstention under Younger has been met.
Plaintiffs argue this Court
should not abstain; although the cases upon which plaintiffs rely involved
class action preliminary injunctions against state court child support contempt
proceedings, they are factually and legally distinct from the instant case. The
courts in Mastin v. Fellerhoff, and Johnson v. Zurz, were asked
to abstain in light of a Ohio Supreme Court case which clearly delineated the
line for the right to counsel between criminal and civil matters. See
Johnson, 596 F. Supp. at 44; Mastin, 526 F. Supp. at 971. Given the
direct state court precedent denying pro bono counsel to the obligors, the district
courts believed plaintiffs would be unable to rely on the Ohio state courts to
effectively adjudicate the claims of the plaintiffs in those cases, and thus
abstention was not appropriate. See id. This Court is not faced with any
such precedent, as already noted, New Jersey law appears amenable to
adjudicating plaintiffs' claims.
The court in Lake v. Speziale,
did not feel compelled to abstain under Younger because it did not find
any pending state court action. See Lake, 580 F. Supp. at 1329. However,
the decision in Lake was rendered approximately fourteen years before
the adoption of the Uniform Interstate Family Support Act (“UIFSA”) which
endorses the concept of “continuing, exclusive jurisdiction” with the court
that issued the support order. See Teare, 332 N.J. Super. at 385.
Further, the Lake Court was faced with a factually different situation
in which the defendant judges admitted to a state practice of declining legal
aid to indigent obligors. See Lake, 580 F. Supp. at 1328. No such
admission has been made in the present case. The Court is not persuaded by the
aforementioned cases, and given the current uniform landscape for continuing
jurisdiction for the enforcement of child support orders, this Court believes
there is pending state court action. See supra, II B 1. Further,
plaintiff does not indicate any extraordinary circumstances which require this
Court to interpose itself in state court proceedings, nor can plaintiff allege
any of these enforcement proceedings were undertaken in bad faith.
Therefore, in light of the
satisfaction of all three prongs for abstention under the Younger
doctrine, and because there are no extraordinary circumstances which would
warrant intrusion on state court proceedings, and in the spirit of comity and
federalism, this Court will abstain from entertaining plaintiffs' complaint,
and the complaint will be dismissed.
C.. Cross-motions for Class Certification and a
Preliminary Injunction
Since plaintiffs' complaint will
be dismissed, plaintiffs' requests for certification of plaintiff and defendant
classes; and for a preliminary injunction must be denied.
III CONCLUSION
For the reasons
discussed above, defendants' motion to dismiss is granted on grounds of the Younger
abstention doctrine. Further, plaintiffs' cross-motions for class
certifications and a preliminary injunction are denied.
GARRETT
E. BROWN, JR., U.S.D.J.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANNE PASQUA, RAY TOLBERT, and :
MICHAEL ANTHONY, Individually and
:
on behalf of all persons similarly
situated, :
: Civ.
No. 00-2418 (GEB)
Plaintiffs, :
:
v.
:
:
ORDER
HONORABLE GERALD J. COUNCIL, :
HONORABLE F. LEE FORRESTER, :
HONORABLE DEBORAH PORITZ, and :
HONORABLE RICHARD J. WILLIAMS :
:
Defendants. :
:
This matter having come before
the Court upon defendants' motion to dismiss and upon plaintiffs' cross-motions
for class certification and a preliminary injunction; and the Court having
considered the submissions and the arguments of the parties; and for the
reasons expressed in the Memorandum Opinion issued herewith; and for good cause
shown;
IT IS THIS 8th day of March, 2001
ORDERED that defendants' motion
to dismiss be and hereby is GRANTED; and
IT IS FURTHER ORDERED
that plaintiffs' cross-motions for certification of plaintiff and defendant
classes be and hereby are DENIED; and plaintiffs' motion for a preliminary
injunction be and hereby is DENIED.
_______________________________
GARRETT
E. BROWN, JR., U.S.D.J.
Footnote: 1 1Plaintiffs
allege violations of their civil rights based on the Fifth Amendment right
against self-incrimination, a right which arises in the circumstances of
custodial interrogation. See Dickerson v. United States, 530 U.S. 428, __, 120
S.Ct. 2326, 2334 (2000). Although plaintiffs allege they were compelled to
attend the hearings in question, there is no allegation that they were not
informed of their right to remain silent, which is guaranteed by the Fifth
Amendment. See U.S. Const. amend. V. Further, the Due Process Clause of the
Fourteenth Amendment, not the Fifth, applies to the actions of the states. See Gideon
v. Wainwright, 372 U.S. 335 (1963) cited in Argersinger v. Hamlin, 407 U.S. 25,
44 (1972) (Powell, J. concurring). Therefore, the Court will examine
plaintiffs' assertions under the Fourteenth Amendment right to due process and
Sixth Amendment right to counsel which provides the right to representation
when a litigant will be incarcerated. See Lassiter v. Dep't. of Social Services
of Durham County, 452 U.S. 18, 26 (1981).
Footnote: 2 2It
is unclear if plaintiff was ordered incarcerated on June 8, or June 9, because
plaintiffs' complaint alleges the hearing was held on June 8, 200 but then
refers in a later paragraph to the June 9 hearing. See Pls.' Compl. ¶¶ 29, 30.
This distinction does not impact on the outcome of this motion and the Court
only notes the discrepancy to prevent any possible confusion.
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