The Law Office of
David Perry Davis
31 Jefferson Plaza
Princeton, NJ 08540
(732) 274‑9444
(732) 274‑2050
(fax)
Attorney for plaintiff
class
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|
Jasmine Leonard, David Chavis, Davonica Chavis,
Tionoa Logan, Ashley Lewis, individually and on behalf of all similarly
situated children of unconstitutionally incarcerated parents; Jeffrey Leonard, Devin Square, Craig Williams, James
Thompson, Cheyanne Johnson, David Chavis, Todd Logan, Jeffrey Jones, Gary J.
Davis, Cleo Merritt, Juan Cruz, Ronald Cohen, individually and on behalf of
all persons similarly situated; Plaintiffs vs. Hon. Audrey P. Blackburn, JSC, Hon. F. Lee
Forrester, Hon. Rosalie B. Cooper, JSC, Hon. Thomas W. Cavanaugh, Jr., JSC,
Hon. Louis Locascio, JSC, 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, Defendants |
:::::::::::::::::::::::::::::::::: |
SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION GENERAL EQUITY PART MERCER COUNTY DOCKET NO. Civil Action ORDER TO SHOW CAUSE (Without
temporary restraints) |
──────────────────────────────────────
TO: John J.
Farmer, Jr.
Attorney
General of New Jersey
Division of
Law
Hughes
Justice Complex
25 Market
Street
Trenton NJ
08625
THIS MATTER
having been opened to the Court on application of plaintiff class, David Perry
Davis, Esq., appearing, for an Order to Show Cause, and notice having been
given to defendants, John J. Farmer, Esq., Attorney General, 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 November , 2001
, hereby Ordered that Plaintiff shall show cause on the day of November , 2001 , at :
before the Hon. ,
J.S.C., located at the Superior Court of New Jersey, Chancery Division, why an
Order should not be entered:
1. Certifying the proposed plaintiff class;
2. Certifying the proposed defendant class;
3. Enjoining the defendant class from
incarcerating any member of plaintiff class absent a showing, based on
substantial and credible evidence, that said member of plaintiff class has the
ability to pay the release amount set;
4. Granting a Preliminary Injunction compelling
the defendants to immediately release all currently incarcerated plaintiffs
pending an ability to pay hearing, or, in the alternative, to conduct a proper
ability to pay hearing within 24 hours.
IT IS FURTHER ORDERED:
That a copy
of the within Order to Show Cause be served upon defendants within
days hereof.
That counsel
for defendants shall file and serve any opposing papers no later than
____________, and plaintiff's 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
──────────────────────────────────────
|
Jasmine Leonard, David Chavis, Davonica Chavis,
Tionoa Logan, Ashley Lewis, individually and on behalf of all similarly
situated children of unconstitutionally incarcerated parents; Jeffrey Leonard, Devin Square, Craig Williams, James
Thompson, Cheyanne Johnson, David Chavis, Todd Logan, Jeffrey Jones, Gary J.
Davis, Cleo Merritt, Juan Cruz, Ronald Cohen, individually and on behalf of
all persons similarly situated; Plaintiffs vs. Hon. Audrey P. Blackburn, JSC, Hon. F. Lee
Forrester, Hon. Rosalie B. Cooper, JSC, Hon. Thomas W. Cavanaugh, Jr., JSC,
Hon. Louis Locascio, JSC, 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, Defendants |
:::::::::::::::::::::::::::::::::: |
SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION MERCER COUNTY GENERAL EQUITY PART 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
Statement of facts......................................... 1
Argument
Point I: PLAINTIFF CLASS SHOULD BE CERTIFIED PURSUANT
TO RULE 4:32-1(a)......................................... 4
Point II: DEFENDANT CLASS SHOULD BE CERTIFIED PURSUANT TO RULE 4:32-1(a)........................................
9
Point III: THE COURT SHOULD ISSUE A PRELIMINARY INJUNCTION
AGAINST THE UNCONSTITUTIONAL PRACTICES OF DEFENDANT CLASS.
Conclusion................................................ 11
TABLE OF AUTHORITIES
CASE
LAW
Biddle v. Biddle, 150 N.J.Super. 185 (Ch.Div. 1977)........ 5
Cerro Metal Products v. Marshall, 620 F.2d 964, 972 (3d. Cir. 1980) 10
City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675
(1983)................................................ 11,
12
Continental Group Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356‑57 (3d Cir. 1980)................................................ 10
Department of Health v. Roselle, 34 N.J. 331 (1961)........ 5
Doe v. Charleston Area Medical Center, Inc., C.A.4 (W.Va.) 1975, 529 F.2d 638........................................................ 4
Erdman v. Stevens, 458 F.2d 1205, 1208 (2nd Cir.1972), cert. denied, 409 U.S.
889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972).............. 5
Federbush v. Federbush, 5 N.J.Super. 107, (App.Div.1949)... 5
Lake v. Speziale, 580 F.Supp. 1318 (D.Conn.1984)........... 9
Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981)...... 9
Pierce v. Pierce, 122 N.J.Super. 359 (App.Div. 1973)....... 5
Saltzman v. Saltzman, 290 N.J.Super. 117 (App.Div. 1996)... 5
W.P. v. Poritz,
931 F.Supp. 1187 (D.N.J. 1996)............. 4
Young v. Pierce, E.D.Tex. 544 F.Supp. 1010 (1982).......... 4
FEDERAL
STATUTES
42 U.S.C. § 1983...................................... passim
STATEMENT
OF FACTS
This matter
arises as a result of defendants' orders resulting in the incarceration of a
group of noncustodial parents for their nonpayment or underpayment of
court-ordered financial child support.
As explained herein, the incarcerations are alleged to be
"coercive", yet in each case the incarcerated parent either has not
had a release amount set at all or has had a release amount set without the
constitutionally required finding that the obligor has the present ability to
pay same. In most of these cases, there
was not even an inquiry as to the ability of the prisoner to pay the release
amount set by the Court. Accordingly,
the jailings are not legitimate coercive incarcerations, but improper, punitive
deprivations of liberty.
There are
two groups of plaintiffs. The first
consists of the children of said noncustodial parents. These children have a constitutional right
to a form of child support deeper than money - the love, care, and
companionship of their parents. This
right is fundamental and is being violated by defendants class' arbitrary and
improper establishment of release amounts for the children's parents. Secondarily, these children have a right to
financial child support from their parents.
While the legitimate goal of coercive incarceration serves this right,
the illegitimate punitive incarcerations imposed by defendants deprives the
noncustodial parents of the ability to earn money or seek employment to support
said children.
The second
set of plaintiffs are the noncustodial parents who are in default on their
court-ordered child support obligations.
Many of the named plaintiffs are now "coercively"
incarcerated. The incarceration itself
is not challenged. It is undisputed
that coercive incarceration may in some instances be an appropriate and fully
constitutional method of forcing a recalcitrant but able obligor to comply with
a valid child support Order.
What is challenged
herein is the defendant class' continuous abrogation of the law insofar as it
requires the trial court to set a release amount actually tied to the ability
to pay of the defaulting obligor. All
of the plaintiffs presented have had release amounts set that they are not able
to pay, and all the plaintiffs whose cases have been reviewed were subjected to
hearings where no meaningful inquiry into their ability to pay was made.[1]
The issue of
trial courts incarcerating child support obligors without first making a
determination that the obligor possesses an ability to pay the release amount
set has been visited on several occasions by the Appellate Division and Supreme
Court, and more recently four appellate panels.[2] Each case was presented as an emergent
appeal. In each case, the Appellate
Division agreed that the violation of the constitutional right to liberty
constituted emergent circumstances warranting immediate review. In each case, the Appellate Division granted
the requested relief and released the incarcerated defendant.[3] The law is clear. Nonetheless, the trial courts continue to incarcerate
"deadbeat parents" without making so much as an inquiry into their
ability to pay the release amounts set.
The second
sub-set of plaintiffs have been held without review of any type, for periods
ranging from four to in excess of fifty days.
Were these plaintiffs charged with a criminal offense, they would be
constitutionally entitled to a bail hearing within 12 hours of their
arrest. See, R. 3:4-1(b), NJ Const.
Art. 1, § 11. These plaintiffs
sit in legal limbo, without a release amount having been set and without their
constitutional right to an immediate bail hearing being respected.
As
indicated, in the last 18 months, four appellate panels have addressed this
issue in individual cases. Nonetheless,
the trial court continues to ignore the law and violate the civil rights of the
plaintiff-obligors. At this juncture, a
class action is appropriate. The
plaintiff class should be certified, an immediate hearing should be scheduled,
and the requested relief should be granted.
ARGUMENT
Point
I
PLAINTIFF
CLASS SHOULD BE CERTIFIED PURSUANT TO RULE 4:32-1(a).
A. As to obligor plaintiffs
Plaintiff class should be certified without
delay. As set forth in the attached
complaint, the named plaintiffs bring this suit individually and on behalf of
all residents of the State of New Jersey who: (1) have been or currently are in
arrears under support orders issued by the Chancery Division, Family Part of
the Superior Court; (2) are presently incarcerated, will in the future be
incarcerated and/or have in the past been incarcerated as a result of their
failure to pay said child support; (3) have had their release (purge) amounts
set without a meaningful inquiry as to their ability to pay same; and (4) have
been incarcerated in spite of their inability to pay the release amounts set by
the court.
The
Complaint names twelve plaintiffs, but there are many, many more. According to the New Jersey Lawyer
newspaper, there were 53,746 enforcement hearings last year. See, New Jersey Lawyer, July 31, 2000, Page
1 (Exhibit B).
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; (2) there are common questions of law and fact; (3) the claims
and defenses of the representative plaintiffs are representative of those of
the class; (4) the representative plaintiffs will fairly and adequately protect
the interests of the class; 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.
Where, as
here, only injunctive and declarative relief is sought, the standard for
establishing the numerosity requirement for class certification has
traditionally been relaxed. 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.),
certiorari 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).
It is
respectfully submitted that plaintiffs satisfy the numerosity requirement for
class certification.
As with the
defendant class, there are common questions of law and fact. While the precise underlying facts
surrounding each case may differ, the common fact is what is relevant: each
person in arrears has had a release amount set by the Court which is not based
on their ability to pay. This violates
well-settled case law as restated by the Appellate Division in Weinstein v.
Weinstein:
An order
incarcerating a debtor-spouse in aid of litigant's rights which contains an
amount to be paid as a condition for release presupposes that the judgement
debtor has assets that have been secreted or otherwise placed beyond the reach
of execution. . . the purpose of such an order, and its legal justification, is
to induce compliance with a lawful order.
In such cases, the incarcerated party has the key to freedom in his/her
hands because the debtor-spouse has the ability to comply with the order as a
condition for release. The record
before us is devoid of any evidence that defendant has assets that can be used
to satisfy the release amount ordered by the court. . .
Without a
scintilla of evidence that an obligor has the "key to freedom in his
hands," a party cannot be incarcerated for defaulting on a child support
obligation. Saltzman v. Saltzman, 290
N.J.Super. 117 (App.Div. 1996), Pierce v. Pierce, 122 N.J.Super. 359 (App.Div.
1973); Federbush v. Federbush, 5 N.J.Super. 107, (App.Div.1949); Biddle v.
Biddle, 150 N.J.Super. 185 (Ch.Div. 1977); Department of Health v. Roselle, 34
N.J. 331 (1961), Commentary to R. 1:10-3, Current New Jersey Court Rules.
The claims
and defenses of the representative plaintiffs are identical to those of the
class as a whole.
The
representative plaintiffs will fairly and adequately protect the interests of
the class. The claims are typical of
those raised by defendants in child support matters and the adjudication sought
by the plaintiff class, if granted, would protect all the affected
plaintiffs.
Finally, the
parties opposing the class plaintiffs have acted on grounds generally
applicable to the class as a whole, thereby making appropriate injunctive
relief to the class as a whole. The
judges of the Superior Court of New Jersey preside over hearings wherein they
are called on to establish release amounts for obligors who have defaulted on
their child support obligations.
Plaintiff
class should be certified by this Court.
B. As to child plaintiffs
The right to
a meaningful and loving relationship between a parent and child is so
well-rooted in our nation's jurisprudence as to be considered fundamental by
the New Jersey and United States Supreme Courts. See, e.g., Watkins v. Nelson, 163 N.J. 235 (2000);
Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L. Ed.2d
599 (1982); Stanley v. Illinois, 405
U.S. 645, 651‑652, 92 S.Ct. 1208, 1212‑1213, 31 L.Ed.2d 551 (1972)
(and cases cited); In re Guardianship of Dotson, 72 N.J. 112, 122, 367 A.2d
1160 (1976) (Pashman, J., concurring).
Children
also have a right to food and clothing.
The incarceration of a parent who has willfully defaulted on a child
support obligation may be a completely constitutional and appropriate method of
coercing compliance with a court's Order.
But for an incarceration to be coercive rather than punitive, the
incarcerated party must "have the key to freedom in his hands." See, e.g. Saltzman v. Saltzman, 290 N.J.Super. 117 (App.Div. 1996). In the event punitive measures are
justified, the trial court remains able to refer a matter to the prosecutor's
office for proceedings under N.J.S.A. 2C:24-5 (willful non-support). Weinstein v. Weinstein, April 7, 2000
(Exhibit A at page 7).
Moreover,
while a coercive incarceration serves to force a recalcitrant noncustodial
parent to provide support for his or her child (by forcing them to "use
the key to freedom" by paying the set release amount), a punitive
incarceration, or the establishment of a release amount above the ability of
the incarcerated parent to pay, has the exact opposite result. The noncustodial parent who cannot hope to
pay the release amount set cannot earn money to pay child support and cannot
pursue employment while in jail.
Neither the child's right to love and parenting nor his or her right to
child support is served by defendants' illegitimate incarceration of
plaintiff-obligors.
For every
plaintiff-obligor, there is (at least) one plaintiff child. Plaintiff class of the children of
improperly incarcerated obligors should be certified.
Point II
DEFENDANT
CLASS SHOULD BE CERTIFIED PURSUANT TO R. 4:32-1(a).
Defendant class should be certified. Rule 4:32-1(a) requires: (1) the persons
affected are so numerous that joinder of all parties is impracticable; (2)
there are common questions of law and fact; (3) the claims and defenses of the
representative defendants are representative of those of the class; (4) the
representative defendants will fairly and adequately protect the interests of
the class; and (b)(1)the prosecution of separate actions by or against
individual members of the class would create a risk of (A) inconsistent or
varying adjudications with respect to individual members of the class which
would establish incompatible standards of conduct for the party opposing the
class, or (B) adjudications with respect to individual members of the class
which would as a practical matter be dispositive of the interests of the other
members not parties to the adjudications or substantially impair or impede
their ability to protect their interests.
That the
persons affected are so numerous that joinder of all parties is impracticable
is beyond debate. This Court can take
judicial notice of the fact that there are well in excess of the required
number of parties who are sitting Judges of the Superior Court of the State of
New Jersey. See, New Jersey Lawyers Diary, 2001 Edition, pages 883-892 (listing
over 500 state court judges).
There are common questions of law and fact, and the
claims and defenses of the representative defendants are representative of
those of the class. The factual and
legal issues as to all defendants are identical.
The
representative defendants will fairly and adequately protect the interests of
the class. All New Jersey Judges are
represented by the Attorney General's office, experienced litigators who will
fairly and adequately protect the interests of the class.
The
prosecution of separate actions by or against individual members of the class
would create a risk of adjudications with respect to individual members of the
class which would as a practical matter be dispositive of the interests of the
other members not parties to the adjudications or substantially impair or
impede their ability to protect their interests.
Judges of
the Superior Court have been certified as a class under the same circumstances
in other jurisdictions. See, e.g. Lake v. Speziale, 580 F.Supp. 1318 (D.Conn.1984),
Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981).
The
defendant class should be certified.
Point
III
THE COURT
SHOULD ISSUE A PRELIMINARY INJUNCTION AGAINST THE UNCONSTITUTIONAL PRACTICES OF
DEFENDANT CLASS
To support a
preliminary injunction, the moving party must show irreparable injury and a
reasonable probability of eventual success on the merits. Additionally, the court must weigh the
possibility of harm to the non-moving party and, when relevant, harm to the
public. See Crowe v. DeGioia, 90 N.J. 126 (1982) reh'g on remand 203
N.J. Super. 22 (App. Div. 1985); Cherry
Hill Township v. Oxford House, 263 N.J.Super. 25, 43 (App.Div.1993); Morris
Cty. Tsfr. v. Frank's Sanitation, 260 N.J.Super. 570, 574-576 (App.Div.1992), Cerro Metal Products v. Marshall, 620 F.2d 964, 972
(3d. Cir. 1980), citing Continental Group, Inc. v. Amoco Chemicals Corp., 614
F.2d 351, 356‑57 (3d Cir. 1980).
Plaintiffs'
probability of success on the merits is high and there is a clear showing, if
not res judicata, as to the irreparable injury they are suffering. Within the last eighteen months, seven
appellate judges[4] in four
separate cases, relying on well-established case law[5]
have determined that unconstitutional incarceration constitutes sufficient
irreparable injury to warrant the granting of emergent relief. In those cases, the longest any single
plaintiff had been incarcerated was seventy-three days.[6] In the matter now before this Court,
plaintiff Craig Williams has been incarcerated for eighty-five (85) days
- since September 3, 2001.[7] The appellate division in Bachman v. Cohen
set a benchmark of twelve days before a trial court should assume that a
defendant's incarceration is no longer "coercive"[8]
and they do not possess "the key to freedom in his/her hands."
In this
matter, there is no possible harm to the non-moving party. There is no challenge raised to the
authority of the court to enforce child support orders. The issue is the defendants' persistent and
repetitive failure to establish release amounts based on the ability of
plaintiffs to pay same and secure their release. Defendants are not in any way benefitting from plaintiffs'
release amounts being based on a factor other than their ability to pay and can
therefore allege no harm.
As this
matter is brought under § 1983, plaintiffs must allege a probability that the
complained of conduct will be repeated before a preliminary injunction can
issue. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct.
1660, 75 L.Ed.2d 675 (1983). In the
matter before this Court, plaintiffs have alleged systematic conduct of
establishing release amounts based on considerations other than the ability to
pay of the obligor, or in failing to provide plaintiffs with any type of review
of their incarceration. The enclosed
affidavits indicate a consistent pattern of conduct sufficient to satisfy the
Lyons requirement.
All the
factors required for an injunction having been met, the Preliminary Injunction
should issue forthwith.
CONCLUSION
For the
above listed reasons, the classes should be certified and the requested
preliminary injunction should issue forthwith.
Respectfully
submitted this day of November,
2001
____________________________
David
Perry Davis, Esq.