PRELIMINARY STATEMENT

PRELIMINARY STATEMENT

Plaintiffs have asked this Court to create a right to the appointment of counsel for all indigent child support obligors who are in arrears on previously court-ordered child support payments, and who as a result of such delinquency have been brought before a court following issuance of a warrant. It is respectfully submitted that this precise question has already been fully considered and answered in the case of Scalchi v. Scalchi, 347 N.J.Super. 493 (App. Div. 2002). In that case, the Appellate Division firmly rejected the identical claim of entitlement to the appointment of counsel, finding instead that “[t]he current law in New Jersey ... does not require that counsel be assigned to an indigent in a support enforcement proceeding.” Id. at 495. That decision is, of course, binding on this Court.

Faced with the undeniable fact that Scalchi is directly on point, plaintiffs have fallen back on the argument that the Scalchi court in its analysis considered only the applicability of the Sixth Amendment, and that the issue of a right to counsel under the Fourteenth Amendment has not yet been passed on. However, that argument is simply untenable, as implicit in any analysis of the State's obligations under the Sixth Amendment is a review of the Fourteenth Amendment as well. Furthermore, a fair reading of Scalchi indicates that, apart from any review under the Sixth Amendment, the court did in fact cite to case law analyzing the issue of the appointment of counsel based solely on Fourteenth Amendment principles. Plaintiffs’ proposed reading of Scalchi should thus be rejected.

Even if Scalchi is not controlling, plaintiffs can establish no due process violation under the Fourteenth Amendment. That is because under the procedures currently utilized by the courts of this State, indigent child support obligors do not face incarceration. Rather, courts in such cases will first provide an ability-to-pay hearing in order to ascertain whether a child support obligor is in fact indigent; if the court answers that question in the affirmative, then no incarceration can or will be ordered. Incarceration is an option only for those non-indigent obligors who refuse to comply with previously issued court orders to pay child support. Such a proceeding accords with fundamental fairness and does not violate due process.

Finally, any consideration of the issue of the right to the appointment of counsel demanded by plaintiffs requires a recognition of the nature of the proceeding for which such appointment of counsel is sought. An ability to pay hearing, unlike other civil proceedings where the courts of this State have previously found that a right to the appointment of counsel exists, does not place a child support obligor in the position of being forced to address sophisticated issues of fact or law, and thus appointment of counsel is not warranted.

For all these reasons plaintiffs’ arguments must be rejected, and their complaint dismissed accordingly.

STATEMENT OF FACTS

Defendants rely on the Statement of Facts previously submitted in their brief in support of the Cross Motion to Dismiss.

ARGUMENT

POINT I

PURSUANT TO THE APPELLATE DIVISION’S DECISION IN SCALCHI v. SCALCHI THERE IS NO RIGHT TO THE APPOINTMENT OF COUNSEL FOR INDIGENT CHILD SUPPORT OBLIGORS AT SUPPORT ENFORCEMENT HEARINGS.

The current case law in New Jersey is clear: under

Scalchi, supra, in civil proceedings for the enforcement of child support, plaintiffs are not entitled to the appointment of counsel. Scalchi is not distinguishable from the present case and, contrary to plaintiffs’ argument, is controlling here.

The appellant in Scalchi, like plaintiffs here, was a child support obligor who was the subject of a support enforcement proceeding. Scalchi alleged that he was indigent, and argued that he was thus entitled to the appointment of counsel. The trial court judge denied that application and Scalchi appealed. In affirming the trial court’s ruling, the Appellate Division first reviewed the procedures applicable to such enforcement proceedings in New Jersey. The court noted that before any incarceration can occur, “a hearing must by held to determine if the defendant has the ability to pay and is presently capable of complying with the order.” Id. at 495 (citing Saltzman v. Saltzman, 290 N.J.Super. 117 (App. Div. 1996)). If the court determines that the defendant has the ability to pay but is unwilling to do so, the court may order incarceration as “a coercive means to require payment, but not as a punitive measure.” Ibid.

The Scalchi court then provided an overview of the history of the appointment of counsel in New Jersey. The court stated that New Jersey has given longstanding recognition to a defendant’s right to counsel in a criminal matter entailing “imprisonment in fact or other consequences of magnitude...” (citing Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971)). The Court then distinguished the treatment of that issue in civil matters. As stated by the Court, there is a “vast difference” between a criminal contempt proceeding and a civil proceeding to enforce litigants rights. “The latter is essentially a proceeding to coerce the defendant into compliance with the court’s order for the benefit of [a] private litigant.” Id. at 496. In such cases, before ordering the imposition of a sanction, the court must determine whether the defendant has the ability to comply with the order. Ibid. (citing Essex County Welfare Bd. v Perkins, 133 N.J.Super. 189 (App. Div. 1975), certif. denied 68 N.J. 161 (1975)).

Thus, faced with the identical issue that plaintiffs now argue before this Court, raised by a party whose status is indistinguishable from that of plaintiffs here, the Appellate Division in Scalchi concluded that no right to the appointment of counsel exists in New Jersey. There is no credible way to distinguish Scalchi from the present matter, and that case is thus dispositive. A trial court is “privileged to disagree with the pronouncement of appellate courts” but “may not disobey them.” Petrusky v. Maxfli Dunlop Sports Corp., 342 N.J.Super. 77, 81 (App. Div.), certif. denied, 170 N.J. 388 (2001). The Appellate Division has spoken on the issue before this Court, thereby mandating the denial of counsel in this matter.

Plaintiffs do not dispute that Scalchi addresses the same issue they raise here, nor do they question that the court in that case rejected the argument they put forward in this case. Their sole reply is that the Scalchi court failed to properly analyze the issue of their entitlement to the appointment of counsel under the Fourteenth Amendment, but instead limited itself to a consideration of the impact of the Sixth Amendment on that question. Plaintiffs thus argue that Scalchi is not binding on this court. This argument is meritless and must be rejected.

Any analysis under the Sixth Amendment includes, by definition, an examination of the Fourteenth Amendment. For example, in Mastin v. Fellerhoff, 526 F.Supp. 969, 970 (S.D.Ohio 1981), plaintiff was incarcerated for contempt for nonpayment of child support. The District Court found the Ohio Supreme Court, in holding that the Sixth Amendment right to counsel did not apply to a civil contempt hearing for non-payment of child support, necessarily rejected the argument that appointed counsel is required by the Due Process Clause of the Fourteenth Amendment. Id. at 971. As the Mastin court noted, it is a fundamental principle of constitutional law that it is only through the Fourteenth Amendment that the Sixth Amendment is binding on the states, and the Ohio Supreme Court would never have reached the Sixth Amendment issue without consideration of the Fourteenth Amendment. Ibid. Similarly, the Scalchi court could not have reached its decision without consideration of the Fourteenth Amendment.

Moreover, in the course of analyzing the issue of appointment of counsel, the Scalchi court cited to two cases from other jurisdictions, both of which addressed the issue of appointment of counsel solely in terms of the Fourteenth Amendment. In McBride v. McBride, 431 S.E.2d 14 (N.C. 1993), the North Carolina Supreme Court was faced with the issue of a child support obligor who argued that he was entitled to appointment of counsel due to his indigency. The court unequivocally reviewed that question in the context of the Fourteenth Amendment. As stated by the court, “the source of any right to counsel in a civil contempt action is the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, while the Sixth and Fourteenth Amendments are the source of a criminal defendant’s right to counsel.” Id. at 16. The McBride court also cited to the United States Supreme Court’s decision in Lassiter v. Department of Social Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), and stated that the issue as framed by the Lassiter Court was whether appointed counsel was required “by virtue of the Due Process Clause of the Fourteenth Amendment.” Ibid. Similarly, in Young v. Whitworth, 522 F.Supp. 759 (S.D. Ohio 1981), a case also cited in Scalchi, the District Court, facing the issue of the appointment of counsel, began its analysis by stating that “we now undertake to determine whether the due process clause of the fourteenth amendment requires the provision of counsel in this case.” Id. at 762.

Thus, a fair reading of Scalchi indicates that the court did in fact analyze the issue of appointment of counsel in the context of the Fourteenth Amendment. This is demonstrated, first, because any analysis under the Sixth Amendment implicitly requires consideration of the Fourteenth Amendment, and second, because the court reviewed and considered cases which were based solely on the Fourteenth Amendment. In order to indulge plaintiffs’ argument, this Court would have to conclude that the Scalchi court failed to properly apply Sixth Amendment analysis, and further that its citation to McBride and Young was meaningless. It is submitted that plaintiffs’ narrow reading of the decision is unreasonable and should be rejected.

POINT II

THE PROCEDURES EMPLOYED AT SUPPORT ENFORCEMENT HEARINGS IN NEW JERSEY FULLY COMPLY WITH FUNDAMENTAL FAIRNESS.

At oral argument in this matter, the Court raised the issue of whether Lassiter, supra, is controlling in the present case. As set forth in Point I, supra, defendants submit that this court does not need to reach this issue, as the Appellate Division has previously addressed the issue of appointment of counsel in Scalchi. However, assuming arguendo that Scalchi is not controlling here, application of the principles set forth in Lassiter does not support plaintiffs’ position. Rather, the provision of an ability to pay hearing by New Jersey courts fully comports with the fundamental fairness required by Lassiter.

Lassiter involved a proceeding to terminate parental rights. The Supreme Court analyzed the question of whether there was a right to the appointment of counsel in that case under the Fourteenth Amendment. In the course of that analysis, the Court stated that due process “has never been, and perhaps can never be, precisely defined”. Id., 452 U.S. at 24, 101 S.Ct. at 2158, 68 L.Ed.2d 640. However, the Court went on to state that the phrase expresses the requirement of ”fundamental fairness”. Ibid. Reviewing what fundamental fairness means in the context of the right to appointed counsel, the Court stated that a presumption exists that an indigent litigant has a right to such counsel only when, if they lose, they may be deprived of their liberty. Id., 452 U.S. at 26-27, 101 S.Ct. at 2159, 68 L.Ed.2d 640. Having said that, the Court proceeded to reaffirm the three part test previously announced in Mathews v Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, as the appropriate standard for ascertaining whether due process requires the appointment of counsel in a given case. Lassiter, supra, 452 U.S. at 27, 101 S.Ct. at 2159, 68 L.Ed.2d 640. That test requires the court to balance the private interest at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions. Ibid.

At oral argument, an issue was raised as to the proper interpretation of Lassiter and the standard to be applied under that case to the review of the issue currently before this Court. Specifically, the Court indicated that one interpretation of Lassiter is that it stands for the proposition that counsel must be provided in all cases where a person may lose their liberty. However, a review of the Supreme Court’s language indicates that the Court merely creates a presumption that a potential loss of liberty will create the entitlement to appointment of counsel. That presumption can be rebutted by a review of the actual procedures utilized by a State in a particular situation, and an application of the balancing test set forth in Mathews. In effect, the bottom line remains that procedures that provide the necessary fundamental fairness do not offend due process. The case of Young, supra, is instructive in this regard. As noted above, the court in that case was faced with the same issue faced here, and thus the plaintiff in that case faced a potential loss of liberty. The court did not, however, simply announce that the plaintiff had an automatic right to the appointment of counsel under Lassiter. Rather, it proceeded to do the necessary balancing of the various interests. 522 F. Supp. at 762. Thus, the fact that a child support obligor may potentially lose their liberty, does not in and of itself answer the question as to whether New Jersey’s procedures comply with fundamental fairness; the court must still review those procedures and balance the interests involved, including analyzing the nature of the proceeding itself.

Under Lassiter, the question that must be answered in a case raising the issue of the right to appointment of counsel is whether the particular procedures provided by the State afford the necessary fundamental fairness and thus comport with due process. The procedures currently used by the Judiciary in New Jersey in order to handle cases of delinquent child support obligors do not offend fundamental fairness. As noted above, in all cases in which a support enforcement hearing is held, the court will first conduct an ability to pay hearing in order to ascertain whether the individual can comply with the prior court order (in other words, whether he or she is indigent). The issue of the person’s ability to comply with the court order is the same issue faced by a court in any case in which there is non-compliance with a prior court order and thus the potential that the party is in contempt of that previous order. If the court determines, following the hearing, that the person is in reality indigent, then he or she will not be subject to incarceration, as that would constitute a punitive, rather then coercive, measure. Thus, an indigent child support obligor does not face incarceration. On the other hand, a finding that an obligor is not indigent will obviate his or her entitlement to appointed counsel. The threshold determination of indigency, the hearing for which plaintiffs seek appointed counsel, does not pose a threat of incarceration.

The same conclusion was reached by the court in Andrews v. Walton, 428 So.2d 663 (Fla. 1983). In that case, a father was held in contempt of court for failure to pay child support. He alleged that he was faced with incarceration and thus a fundamental deprivation of his liberty, and was thus entitled to counsel. Id. at 665. The Andrews Court found that Lassiter emphasized the principle that the right to due process is the right to judicial processes which are “fundamentally fair.” Ibid. The court held that the due process doctrine of “fundamental fairness” must be incorporated into the criteria which serve as a prerequisite to imprisonment for non-payment of child support. Id. at 666. Specifically, before an obligor can be incarcerated, a court must determine the obligor’s ability to pay or whether the obligor is willfully refusing to pay. Accordingly, an indigent parent cannot be imprisoned for failure to pay child support because, upon a showing of indigency, the obligor will not be incarcerated. Ibid. Because the obligor will not be subject to a loss of liberty, the fundamental fairness requirement of the Fourteenth Amendment is satisfied.

Moreover, the process afforded to all child support obligors who appear before the court is sufficient to satisfy notions of fundamental fairness. In New Jersey, a court cannot order plaintiff incarcerated for failure to pay his support obligation until the court has determined that he has the ability to pay on the basis of evidence adduced at a hearing at which he has had the opportunity to testify. Saltzman v. Saltzman, supra; Pierce v. Pierce, 122 N.J. Super. 359, 361 (App. Div. 1973).

The parameters of an ability to pay hearing are narrowly circumscribed, dealing as the hearing does with the single issue of the obligor’s current financial situation. All of the information involved in that hearing is readily understandable and by definition uniquely within the possession of the child support obligor - for example, income, nature of expenses, and current assets. And, all of this information can be elicited by relatively rudimentary questioning by the trial court judge. It is not a situation where the pro se party is required to confront the necessity of understanding sophisticated legal principles, analyzing difficult factual materials or countering expert testimony. Rather, the only issue is one of the obligor’s own basic financial situation, a factual complex that can readily be obtained by simple questioning from the court.

By way of comparison, this type of proceeding contrasts sharply with other situations where the courts in New Jersey have found that there is a need for appointment of counsel in civil matters. For example, in Crist v. New Jersey Div. of Youth and Family Servs., 128 N.J.Super. 402 (Law Div. 1974), the court considered the issue of whether a right to appointment of counsel existed for indigent parents in custody actions. The court concluded that such a right existed, a decision that was subsequently affirmed by the Appellate Division. In the course of its analysis the court focused on the type of proceeding involved, and stated that “[i]n some instances it is necessary to deal with a compendium of sociological, psychological, or medical data, well beyond the ken of the ordinary layman.” Id. at 415. This is not true for the straight-forward inquiry before the court in child support enforcement hearings.

More recently, in In re Civil Commitment of D.L., 351 N.J.Super. 77 (App. Div. 2002), the court addressed the issue of the right to appointment of counsel in the context of a case brought under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24. Appellant D.L., who was indigent, argued that he was entitled to appointment of counsel to handle his appeal of an order of commitment under the SVPA. As part of its analysis the court examined the nature of the proceeding at issue. The court stated that:

Evidence considered at a commitment hearing under the SVPA may be difficult for the average person, let alone someone who suffers from a mental abnormality or personality disorder. The hearings generally consist of extensive psychological or psychiatric testimony, as well as evidence of actuarial risk assessments. Not unlike the sophisticated testimony presented at a typical abuse and neglect proceeding, the evidence may be ‘difficult to refute for an uneducated and unsophisticated layman.’ [Id. at 90 (citing Crist, supra).]

Ultimately, the court concluded that due process required appointment of counsel.^*

The limited nature of those proceedings where the courts of this State have found a right to the appointment of counsel underscores the general rule in New Jersey, that appointment of counsel is not required in civil cases. And, the proceedings where such a right has been found to exist differ dramatically from the type of proceeding involved in this case, as detailed above. The proceedings at issue in Crist and D.L., dealing as they do with the issues of child custody and involuntary civil commitment, bear no resemblance to the ability to pay hearing held in child support enforcement actions. A determination that a right to appointment of counsel exists in this case would mark an extraordinary expansion of the principle, and would raise the possibility of its applicability in numerous other scenarios.

It must be remembered that the State also has a vital interest in the child support enforcement proceedings - the interest is insuring that dependent children are provided with essential support payments. The importance of this interest cannot be overstated. Without a serious and credible effort at enforcement of a court’s prior support payment order, there will be limited success in obtaining these funds. The cost of replacing these funds will devolve upon the State, or worse, will not be made up at all. The real threat of incarceration for non-indigent delinquent obligors is the only real form of enforcement available to the State.

POINT III

RULE 5:3-4 IS INAPPLICABLE HERE BECAUSE THERE IS NO CONSTITUTIONAL PROVISION OR LAW IN NEW JERSEY WHICH PERMITS THE APPOINTMENT OF COUNSEL IN CIVIL MATTERS OF THIS NATURE.

Rule 5:3-4 provides that in all matters the parties shall have the right to be represented by counsel. If counsel is not otherwise provided for the family and if the matter may result in the institutional commitment or other consequence of magnitude to any family member, or if any family member is constitutionally or by law entitled to counsel, the court shall refer the family member to the Office of the Public Defender or assign other counsel to represent the juvenile or family member. The Rule further provides that the court may order a family member to pay the fee of assigned counsel, depending on financial circumstances. Ibid. The Court shall also assign counsel to represent indigents in family actions where a party is by constitution or by law entitled to counsel and there is no publicly funded source of representation available. R. 5:3-4(a).

According to Comment 2.2 to this rule, the constitutional right of an indigent to assigned counsel in civil family actions is of less clear and definitive a scope than is the case with juvenile delinquency actions. The Comment states that the extent of that right is generally a matter to be developed by case law applying the standard of entitlement to counsel by constitution, state or federal law. The Comment further states that by law, New Jersey has appointed counsel in termination of parental rights cases, see Crist v N.J. Div. Youth & Family Services, 135 N.J. Super. 573 (App.Div. 1975); N.J. Div. of Youth & Family Serv. v. Wandell, 155 N.J. Super. 302 ( Juv. & Dom. Rel. Ct. 1977).

At oral argument, plaintiffs alleged that capias ad satisfaciendum cases apply to this matter. Plaintiffs’ position is incorrect. A capias ad satisfaciendum is a “body execution” that enables a judgment creditor in certain types of cases to cause the judgment debtor to be arrested until the debtor either pays the judgment or is discharged as insolvent. Marshall v. Matthei, 327 N.J. Super. 512, 525-26 (App.Div. 2000) (citing Perlmutter v. DeRowe, 58 N.J. 5, 13 (1971)). It is similar to a civil contempt against a judgment debtor who has the ability to pay the judgment but refuses to do so. Id. at 526. The significant difference between a writ of capias ad satisfaciendum (referred to as ca. sa. writ) and R. 1:10-3 is that the ca. sa. writ is available only where the defendant is shown to have committed a fraud. Bona v. Wynn, 311 N.J. Super. 257, 264 (Law. Div. 1997). No showing of fraud is necessary pursuant to R. 1:10-3, nor has the Legislature determined that non-payment of child support is a criminal matter. Therefore, to the extent that due process considerations apply to a ca. sa. writ, they are clearly not applicable here.

CONCLUSION

Based on the foregoing, plaintiffs’ Complaint and Order to Show Cause must be dismissed.

Respectfully submitted,

PETER C. HARVEY

ACTING ATTORNEY GENERAL OF NEW JERSEY

By: _____________________________

Diane M. Lamb

Deputy Attorney General

Dated:

TABLE OF CONTENTS

PAGE

PRELIMINARY STATEMENT....................................... 1

STATEMENT OF FACTS.......................................... 3

LEGAL ARGUMENT

POINT I

IN A CIVIL CONTEMPT PROCEEDING, PLAINTIFFS ARE NOT ENTITLED TO THE APPOINTMENT OF COUNSEL............................................ 3

POINT I

PURSUANT TO THE APPELLATE DIVISION’S DECISION IN SCALCHI v. SCALCHI THERE IS NO RIGHT TO THE APPOINTMENT OF COUNSEL FOR INDIGENT CHILD SUPPORT OBLIGORS AT SUPPORT ENFORCEMENT HEARINGS............................... 3

POINT II

THE PROCEDURES EMPLOYED AT SUPPORT ENFORCEMENT HEARINGS IN NEW JERSEY FULLY COMPLY WITH FUNDAMENTAL FAIRNESS.......................... 9

POINT III

RULE 5:3-4 IS INAPPLICABLE HERE BECAUSE THERE IS NO CONSTITUTIONAL PROVISION OR LAW IN NEW JERSEY WHICH PERMITS THE APPOINTMENT OF COUNSEL IN CIVIL MATTERS OF THIS NATURE....................................... 16

POINT IV

THE CAPIAS AD SATISFACIENDUM CASES ARE INAPPLICABLE TO THE CURRENT PROCEEDINGS.................................................. 18

CONCLUSION................................................. 19

CASES

Scalchi v. Scalchi, 347 N.J.Super. 493 (App. Div. 2002)

.................................... 1, 2, 3, 4, 5, 6, 7, 8, 9

Andrews v. Walton, 428 So.2d 663 (Fla. 1983)........... 12, 13

Bona v. Wynn, 311 N.J. Super. 257, 264 (Law. Div. 1997).... 18

Crist v N.J. Div. Youth & Family Services, 135 N.J.

Super., 573 (App.Div. 1975)................................ 17

Crist v. New Jersey Div. of Youth and Family Servs.,

128 N.J.Super. 402 (Law Div. 1974)..................... 14, 15

Essex County Welfare Bd. v Perkins, 133 N.J.Super. 189

(App. Div. 1975), certif. denied 68 N.J. 161 (1975)...... 4, 5

McBride v. McBride, 431 S.E.2d 14 (N.C. 1993)............... 7

In re Civil Commitment of D.L., 351 N.J.Super. 77

(App. Div. 2002)........................................... 14

Lassiter v. Department of Social Servs., 452 U.S. 18,

101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)................... 7, 10

Marshall v. Matthei, 327 N.J. Super. 512, 525-26

(App.Div. 2000)............................................ 18

Mastin v. Fellerhoff, 526 F.Supp. 969, 970

(S.D.Ohio 1981).......................................... 6, 7

Mathews v Eldridge, 424 U.S. 319, 96 S.Ct. 893,

47 L.Ed.2d 18............................................. 10

N.J. Div. of Youth & Family Serv. v. Wandell, 155 N.J.

Super. 302 ( Juv. & Dom. Rel. Ct. 1977)................... 17

Petrusky v. Maxfli Dunlop Sports Corp., 342 N.J.Super. 77,

81 (App. Div.), certif. denied, 170 N.J. 388 (2001)........ 6

Pierce v. Pierce, 122 N.J. Super. 359, 361

(App. Div. 1973)........................................... 13

Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971)........... 4

Saltzman v. Saltzman, 290 N.J.Super. 117 (App. Div. 1996)

....................................................... 4, 13

Young v. Whitworth, 522 F.Supp. 759 (S.D. Ohio 1981).... 8, 11