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Lassiter v. Department of Social Services,

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

Mireles v. Waco,

502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991).......

McKinstry v. Genesee County Circuit Judges,

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

Nollet v. Justices of the Trial Court of the Commonwealth of Massachusetts,

83 F.Supp.2d 204 (Mass. 2000).........................

Ridgeway v. Baker,

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

Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978).................................................

Sevier v. Turner,

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

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).......

Other State Case Law

County of Santa Clara v. Superior Court,

2 Cal.App.4th 1686, 5 Cal.Rptr.2d 7 (1992) ............ 9

Cox v. Slama,

355 N.W.2d 401 (Minn.1984)............................. 9

Jolly v. Wright,

265 S.E.2d 135 (N.C. 1980).......................... 8, 9

Mastin v. Fellerhoff,

526 F.Supp. 969 (S.D.Ohio 1981)........................ 9

McBride v. McBride,

334 N.C. 124, 431 S.E.2d 14 (1993)..................... 9

McNabb v. Osmundson,

315 N.W.2d 9 (Iowa 1982)............................... 9

Mead v. Batchlor,

435 Mich. 480, 460 N.W.2d 493 (1990)................... 9

North Dakota v. Gruchalla,

467 N.W.2d 451, 453 (N.D. 1991)........................ 9

Padilla v. Padilla,

645 P.2d 1327 (Colo.App.1982).......................... 9

Rutherford v. Rutherford,

296 Md. 347, 464 A.2d 228 (1983)....................... 9

Sanders v. Shephard,

185 Ill.App.3d 719, 133 Ill.Dec. 712 (1989)............ 9

Sword v. Sword,

249 N.W.2d 88 (Mich. 1976)............................. 8

Tetro v. Tetro,

86 Wash.2d 252, 544 P.2d 17 (1975).................... 10

Young v. Whitworth,

522 F.Supp. 759 (S.D.Ohio 1981)........................ 9

Scholarly Journals / Law Review Articles / Other Sources

An Overview of Judicial Immunity,

STATE CT. J., Summer 1977, Stafford................ 19

The Right to Appointed Counsel for Indigent Civil Litigants

William & Mary Law Review, 30 Wm. & Mary L. Rev. 627 (1989).............................................. 19

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). 19

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

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

The Twilight of Judicial Independence ‑‑ Pulliam v. Allen,

19 SUFFOLK U.L. REV. 537 (1985) .................... 19

Pulliam v. Allen: Delineating the Immunity of Judges from Prospective Relief

34 CATH. U.L. REV. 829 (1985)....................... 19

Judges ‑‑ Malpractice? Judicial Immunity, Injunctive Relief, and Attorney's Fees under the Civil Rights Statutes,

14 MEM. ST. U.L. REV. 588 (1984).................... 19

Index to Transcripts

Transcript 1 [1T] ‑

Oral Argument, July 11, 2003...... 1T (following appendix)

Table of Contents to Appendix

Notice of Motion ..................................... Pa 1-28

Certification of Services.......................... . Pa 29-63

Defendants' letter brief in opposition............... Pa 64-69

Plaintiffs' reply letter brief....................... Pa 70-79

Notice of Cross Appeal & Appellate CIS............... Pa 80-84

Order of the court dated 09/19/03.................... Pa 85-87

Order of the court dated 09/05/03.................... Pa 88-89

Order of the court dated 07/11/03.................... Pa 90-91

Order of the court dated 05/01/03.................... Pa 92-93

Leonard v. Blackburn, slip opinion, MER-L-3761-01... Pa 94-120

AOC Memorandum / Judicial manual on conduct of

Ability to Pay hearings in light of the trial

court's decision................................... Pa 121-139

Orders on Emergent applications.................... Pa 140-156[1]

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 in September of 2000. Plaintiffs filed a cross motion seeking a preliminary injunction and class certification in September of 2000. 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 granting defendants' abstention application was issued in March of 2001.

An application for reconsideration was filed in March of 2001.

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

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 the State Court's decision in Scalchi v. Scalchi, 347 N.J.Super. 493 (App.Div. 2002), did not sufficiently demonstrate 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, 316 F.3d 412 (3d. Cir. 2003).

The complaint (Da 1-18), along with an order to show cause (Da 19-21) seeking emergent relief in the form of preliminary restraints, was re-filed in state court in February 2003.

On February 24, the trial court denied emergent relief, established a briefing schedule and set the matter down for oral argument on March 28. On March 21, defendants filed a motion to dismiss the complaint.

Oral argument was held March 28, 2003. On May 1, the trial Court issued a 52 page opinion (Da 22-74) on April 24 granting the substantive relief sought by plaintiffs but denying the application for class action status.

An application regarding the implementation of the Court's decision and seeking counsel fees and costs was filed on June 27.

An interlocutory order giving the State 60 days to implement a system for the appointment of counsel was filed July 11, 2003 (Pa 90-91) (and amended September 5, 2003). The same Order denied plaintiffs' application for counsel fees based on the provisions of the Federal Courts Improvement Act of 1996 (Pa 88-89).

On August 15, 2003, defendants moved for a stay of the Court's order pending appeal. While that motion was pending, defendants filed a Notice of Appeal on August 25 (Da 108-112).

An amended order was entered September 5, 2003 (Pa 88-89)

On September 19, 2003, a final order was entered that, inter alia, denied defendants' application for a stay and plaintiff's application for counsel fees and costs (Da 119-121).

Later that day, defendants applied for emergent relief from the Appellate Division seeking a stay of the lower court's order (Da 134). Plaintiffs filed a cross-application challenging the "implementation" portion of the trial Court's decision, which, after finding a constitutional mandate, made suggestions for implementation rather than ordering specific and appropriate relief.[2]

Plaintiffs' notice of cross appeal of the Court's September 19, 2003 Order was filed September 30, 2003. (Pa 80-84)

Statement of Facts

Every year in New Jersey, over 50,000 child support enforcement hearings are conducted. Many of those who are compelled to attend said hearings are indigent. As a result of these proceedings pursuant to R. 1:10-3 and 5:7-5 (hereinafter "Ability to Pay" hearings), hundreds of indigent litigants are incarcerated. Attorneys are not appointed to represent indigent at these hearings, and none of the attendees (regardless of their financial status) are informed of their right to an attorney.

The three named plaintiffs who brought this suit are indigent child support debtors, incarcerated as a result of their inability to comply with financial child support orders and threatened with future incarceration on the same basis.[3]

As explained above, the federal court spoke highly of the merits of the suit, but declined to address them, deferring to the state court. On February 14, 2003, plaintiffs re-filed the complaint under 42 U.S.C. § 1983 seeking declaratory and injunctive relief; namely, the appointment of counsel for all indigent litigants facing incarceration at Ability to Pay hearings, and counsel fees and costs.

On April 24, the Court issued an Opinion agreeing that the Federal Constitution demands the appointment of counsel for any person who may lose their liberty in a civil contempt hearing. The Court also found support for this proposition in the State Constitution. The Administrative Office of the Courts was ordered to implement a process for the appointment of counsel for all indigent litigants facing a potential loss of liberty at child support enforcement hearings.

Preliminary Statement: as to cross appeal (counsel fees)

The trial Court denied plaintiffs' application for counsel fees and costs as the Federal Courts Improvement Act of 1996, Pub.L. No. 104‑317, explicitly precludes such an award against "a judicial officer." (Da 77 - opinion issued July 11).

The same Act prohibits the issuance of injunctive relief against "a judicial officer" unless a declaratory judgment has been violated. No declarative judgment was violated in this matter.

When granting plaintiffs' application for an injunction requiring that counsel be appointed, the trial Court did not invoke the Act. Instead, the relief granted is directed toward the Administrative Office of the Courts, a named defendant who is not "a judicial officer."

When plaintiffs subsequently applied for counsel fees, the trial court ignored the fact that it had granted relief against the AOC as a non-judicial defendant and shifted its focus to the existence of judicial defendants in plaintiffs' complaint. It thereafter denied the application for counsel fees, citing the FCIA.

Even in this Court, defendants do not argue that the FCIA was applicable and should have precluded the Court from entering the requested injunction. The AOC is not "a judicial officer" protected by the FCIA from an injunction.

It cannot be both ways. If the FCIA did not preclude the entry of injunctive relief, it could not preclude an award of counsel fees.

If there was a close call as to whether the Act applied in light of the fact that both judicial and non-judicial defendants were involved, the strong public policy (expressed by both the Federal and State courts) in favor of compensating counsel who demonstrate a violation of Constitutional rights should have persuaded the Court to award counsel fees and costs. New Jersey has a long and proud tradition of thus ensuring that litigants (and especially indigent litigants) who would not otherwise be able to assert and protect constitutional rights will have access to our courts.

The trial court's decision on the issue of counsel fees was inconsistent and contrary to this well established public policy. It should be reversed by this Court.

Statement as to Amicus brief

Plaintiffs agree that the pro bono pool should not be utilized to provide counsel for indigent civil litigants facing potential incarceration at an enforcement hearing.

Although counsel for plaintiffs believe that attorneys have a unique duty to "give back" to the justice system and disagree with the argument that it is unfair to compel them to provide a reasonable amount of legal services to the poor, plaintiffs are concerned that randomly assigned counsel would not have the expertise necessary to properly conduct an Ability to Pay hearing.

It should also be noted that, as a result of this litigation, the Administrative Office of the Courts has promulgated new guidelines that prohibit the incarceration of indigent litigants since no publicly funded pool of attorneys is currently available (Pa 121-139). Indigent litigants, by definition, should not be coercively incarcerated as the finding of indigence doubles as a finding that they do not have the ability to post money to secure their release.

If the trial court's decision is affirmed and the currently operating system remains in place, the only time a conflict with the Constitution could develop would be in the instance that a litigant insists she is indigent in spite of a contrary finding by the Court and thus requires counsel to demonstrate this fact.

Competent and experienced counsel should be made available under these circumstances.

LEGAL ARGUMENT

I. THE TRIAL COURT'S RULING REQUIRING THE APPOINTMENT OF COUNSEL FOR INDIGENT CIVIL LITIGANTS FACING INCARCERATION SHOULD BE AFFIRMED.

A. The appointment of counsel for an indigent litigant is a constitutional mandate when incarceration is a potential outcome of the hearing.

In Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the United State Supreme Court drew a 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.[4]

Defendants urge this Court to accept the precise reasoning that persuaded the Supreme Courts of North Carolina in Jolly v. Wright, 265 S.E.2d 135 (N.C. 1980) and Michigan in Sword v. Sword, 249 N.W.2d 88 (Mich. 1976) and to find that the appointment of counsel is not a constitutional mandate in New Jersey. Both these cases have been overturned by subsequent rulings wherein the right to counsel was recognized as a federal constitutional mandate. 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) and Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493 (1990) overruling Sword v. Sword, 249 N.W.2d 88 (Mich. 1976).

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

State Courts to address the issue have also nearly uniformly granted relief. See, e.g. County of Santa Clara v. Superior Court, 2 Cal.App.4th 1686, 5 Cal.Rptr.2d 7 (1992); Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493 (1990); Sanders v. Shephard, 185 Ill.App.3d 719, 133 Ill.Dec. 712, 541 N.E.2d 1150 (1989); In re Marriage of Stariha, 509 N.E.2d 1117 (Ind.App. 1987); Hunt v. Moreland, 697 S.W.2d 326 (Mo.App. 1985); Cox v. Slama, 355 N.W.2d 401 (Minn.1984); Rutherford v. Rutherford, 296 Md. 347, 464 A.2d 228 (1983); McNabb v. Osmundson, 315 N.W.2d 9 (Iowa 1982); Padilla v. Padilla, 645 P.2d 1327 (Colo.App.1982); Tetro v. Tetro, 86 Wash.2d 252, 544 P.2d 17 (1975).

Similarly, law review and scholarly articles uniformly conclude that counsel must be appointed for an indigent confronted with a potential loss of liberty at a child support 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).

In its only discussion of the merits of this matter, the Third Circuit specifically found that plaintiffs herein had established standing by alleging they would again be compelled to attend a hearing without being provided counsel:

... plaintiffs allege they have been injured because of past constitutional deprivations and are likely to be injured in future child support contempt hearings. Fears of future injury are based on the likelihood that plaintiffs, who allegedly remain indigent, will be summoned again before the New Jersey courts for failing to meet their support obligations. Plaintiffs contend they are unlikely to enjoy their asserted rights in any future hearings. See Scalchi v. Scalchi, 347 N.J.Super. 493, 790 A.2d 943, 945 (N.J.Super.Ct.App.Div.2002) ("The current law in New Jersey [does not] require that counsel be assigned to an indigent in a support enforcement proceeding."); Prob. Servs. Div., Admin. Office of the Courts, Your Guide to Court Preparation; Answers to Common Questions About Child Support Enforcement Hearings (n.d.) ("A lawyer will not normally be court‑appointed for this type of hearing....") Anthony v. Council, 316 F.3d at 417.

Next, defendants allege that injunctive relief was inappropriate "as plaintiffs do not allege a threat of future contempt proceedings" (Db at 10). This is simply false; the complaint expressly alleges a threat of future contempt proceedings (Da 9-12, Complaint at ¶¶ 24,33,40).

Finally, defendants aver that counsel is not necessary as the proceedings involved are simple inquiries into the ability of the incarcerated obligor to pay and therefore not prone to error. No support is offered for the proposition that a "simple" proceedings that could result in a loss of liberty to the litigant is an exception to the mandate that counsel be appointed in such cases. Moreover, this statement is belied by the record below and the series of emergent reversals that initially led to the filing of this action (Pa 140-156).

B. The lower court's opinion distinguishing Scalchi v. Scalchi from the Fourteenth Amendment challenge at issue herein was correct and should be affirmed.

Scalchi v. Scalchi, 347 N.J.Super. 493 (App.Div. 2002) was a Sixth Amendment case and did not reference the Due Process clause of the Fourteenth Amendment. The lower court was correct in distinguishing it from the Due Process issue before this Court.

Defendants do not address the solid reasoning of the trial Court on this issue, instead simply repeating the arguments rejected below. Scalchi is silent as to the Fourteenth Amendment and does not so much as contain the phrase "due process." As the trial court explained in detail, it's "e.g." citation to cases that reference the Fourteenth Amendment cannot be read as implying that the Scalchi Court addressed those issues in detail.

Finally, Scalchi was decided while this matter was awaiting oral argument before the Third Circuit. That Court noted the decision's holding that "[t]he current law in New Jersey [does not] require that counsel be assigned to an indigent in a support enforcement proceeding", yet held that "but this statement does not demonstrate that the New Jersey courts are resistant to adjudicating indigent parents' constitutional rights. We are confident that any constitutional challenge to state court practice would receive proper consideration by the New Jersey courts." Anthony v. Council, 316 F.3d 412, 418 (3d.Cir. 2003). As pointed out above, the Third Circuit's finding of standing to allege a constitutional injury was based on the Scalchi decision. If Scalchi is read as having addressed the Fourteenth Amendment issue, it is in direct conflict with Lassiter as well as every Federal Court to address the issue. The only justification for the Third Circuit's determination that Scalchi "does not demonstrate that the New Jersey courts are resistant to adjudicating indigent parents' constitutional rights" is if Scalchi does not address the Fourteenth Amendment.

C. Civil litigants at child support contempt proceedings are entitled to the same protections as defendants subjected to a writ of capias ad satisfaciendum

The trial Court correctly found additional support for its ruling in the cases discussing the protections due a litigant in capias ad satisfaciendum cases.

In Marshall v. Matthei, 327 N.J.Super. 512 (2000), the Appellate Division was asked to review a writ issued as a result of the defendant's refusal to comply with a judgment entered against him by his former attorney, in spite of evidence that he had the ability to do so. In incarcerating the defendant, the trial Court found, based on defendant's admissions, he had the ability to pay at least $20,000 toward his arrears. Id. at 519.

The Appellate Division noted that it could "discern no reason why the same standards as have developed to govern civil contempt and proceedings in relief of litigants' rights should not apply, as appropriate, to capias ad satisfaciendum commitments." Id. at 526. Defendants offer the unsupported and illogical statement that this statement does not include the most fundamental right, the right to counsel when a litigant's liberty is at stake.

The fact that Mr. Matthei was pro se cannot reasonably read as a ruling on whether he was entitled to counsel. More relevantly, Mr. Matthei was incarcerated based on his own admissions that he had access to $20,000 but refused to pay the judgment at issue. There is no relevance between the facts of this case and the appointment of counsel for indigent civil litigants.

The scope of the due process rights of a civil contemnor facing incarceration upon a writ of capias ad satisfaciendum have been clearly defined by the New Jersey Supreme Court. In discussing these rights, the Marshall Court cites to Perlmutter v. DeRowe, 58 N.J. 5, 13‑14 (1971) (discussing the "function and place of ca. sa.") and Fidelis Factors Corp. v. Du Lane Hatchery, Ltd., 47 N.J.Super. 132, 139‑40 (App.Div. 1957). Perlmutter holds that "civil arrest under a Ca.re. is substantially analogous to arrest under a criminal complaint and a defendant should have all the same procedural rights and protections as if he were arrested on a criminal charge for the same fraud upon which the civil action and the Ca. re. are based." Id. at 17, citing In re Harris, 69 Cal.2d 486, 72 Cal.Rptr. 340, 446 P.2d 148 (1968); Cf. Desmond v. Hachey, 315 F.Supp. 328 (D.Me.1970).

Especially when viewed in conjunction with the holding of the United States Supreme Court in Lassiter v. Department of Social Services, 452 U.S. 18, 31‑34, 101 S.Ct. 2153, 2161‑2163, 68 L.Ed.2d 640 (1981) and of the New Jersey Appellate Division In the Matter of the Civil Commitment of D.L., 351 N.J. Super. 77 (App.Div.), cert granted 174 N.J. 185 (2002) (citing Lassiter), this Court should affirm the trial Court's holding that the Appellate Division's application of the safeguards of R. 1:10-3 to capias ad satisfaciendum proceedings also mandates the inverse ─ defendants in child support contempt proceedings are entitled to the same procedural due process rights as a defendant in a capias ad satisfaciendum proceedings. This includes the right to competent, effective counsel at the hearing where the contemnor's liberty is at stake.

The trial court's ruling on this issue should be affirmed.

III. THE TRIAL COURT'S RULING THAT THE FEDERAL COURTS IMPROVEMENT ACT OF 1996 PRECLUDES AN AWARD OF COUNSEL FEES SHOULD BE REVERSED.

Plaintiffs, indigent child support litigants who were facing unconstitutional incarceration, sued for injunctive and declarative relief pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983. As they could not afford to retain counsel to assert these rights, plaintiffs sought counsel fees and costs pursuant to 42 U.S.C. § 1988.

In Pulliam v. Allen, 466 U.S. 522, 541‑42, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984), the United States Supreme Court interpreted the Civil Rights Act to permit suits for injunctive relief against individual judges. The decision also permitted an award of counsel fees and costs when the Constitution was vindicated through such a suit.

In 1996 the Federal Courts Improvement Act (FCIA) was enacted by Congress as a specific legislative abrogation of the Pulliam decision, and "to restore judicial immunity."

FCIA amends 42 U.S.C. § 1983 to state "in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."

In this matter, no declaratory decree was violated, yet the Court ordered injunctive relief, requiring the Administrative Office of the Courts (AOC) to implement a plan for the appointment of counsel. In so ruling, the Court implicitly acknowledged that the AOC was not acting "in a judicial capacity" but in an administrative one, and the issuance of an injunction under 42 U.S.C. § 1983 was thus not precluded by FCIA.

Plaintiffs then filed an application for counsel fees and costs.

Section 722(b) of 42 U.S.C. 1988, as amended by FCIA, states "(b) Attorney's fees. In any action or proceeding to enforce a provision of section ... 1983 ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction."

In denying plaintiffs' application, the trial Court pointed to this statute and held that an award of counsel fees was prohibited by the Act as other defendants named in the complaint (aside from the AOC) were acting in a judicial capacity.

The trial Court cited to its unpublished opinion in Leonard v. Blackburn, MER‑L‑3761‑01, A-5007-01T3 (Pa 94-120) in support of its conclusion. In Leonard, the trial court was presented with a challenge to the adequacy of the inquiry being made by individual judges at purported "Ability to Pay" hearings and to the timing of those hearings. The named defendants were only the Superior Court Judges who had entered rulings in ability to pay hearings that had been reversed on emergent applications to the Appellate Division (Pa 140-156).[5]

In Leonard, the gravamen of the complaint was a challenge to individual judicial decisions and the FCIA was properly applied to deny plaintiffs' application for counsel fees.

By contrast, the challenge brought in the instant case was against the systemic unconstitutional conduct of compelling indigent litigants to attend hearings wherein their liberty was at stake without first appointing counsel. In contrast to the facts in Leonard, individual judges do not determine whether, on a system wide basis, counsel will be appointed. This is within the purview of the AOC (and the Supreme Court in its rule making capacity). The trial court's opinion in this matter recognizes this distinction by directing the injunctive relief granted toward the AOC, but ignores it by denying the application for counsel fees.

FCIA was never intended to prohibit such systemic challenges. The text of the statute speaks to a prohibition against injunctive relief being ordered against "a judicial officer." A successful challenge to systemic conduct where the relief granted was an injunction against the AOC does not impinge upon judicial discretion and does not have a chilling effect on the ability of "a judicial officer" to rule in any individual case without being concerned that they will end up as defendants in a §1983 action.

Neither the text of the FCIA nor the underlying policy rationale supports the trial court's extension of "a judicial officer" to include the non-judicial functions performed by the Administrative Office of the Courts and the Supreme Court when promulgating guidelines for the appointment of counsel at hearings when a litigant's liberty is at stake. See, e.g., Stafford, An Overview of Judicial Immunity, STATE CT. J., Summer 1977, at 3 (discussing the doctrine of judicial immunity); Weisberger, The Twilight of Judicial Independence ‑‑ Pulliam v. Allen, 19 SUFFOLK U.L. REV. 537 (1985) (examining early American case law on judicial independence); Note, Pulliam v. Allen: Delineating the Immunity of Judges from Prospective Relief, 34 CATH. U.L. REV. 829 (1985) (reviewing both the origin and purpose of the judicial immunity doctrine); Case Comment, Judges ‑‑ Malpractice? Judicial Immunity, Injunctive Relief, and Attorney's Fees under the Civil Rights Statutes, 14 MEM. ST. U.L. REV. 588 (1984) (discussing the history of judicial immunity and the Supreme Court's decision in Pulliam v. Allen).

FCIA is irrelevant where, as here, the cause of action arises from nonjudicial actions, i.e., actions taken in an administrative capacity. See, e.g., Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991), Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985); Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980).

The United States Supreme Court clarified what constitutes "judicial actions" in Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978): "whether an act by a judge is a judicial one relate[s ] to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they