Mar 21 03 04:03p

BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S

COMPLAINT WITH PREJUDICE

Allison Accurso Assistant Attorney General Of Counsel

Diane M. Lamb Deputy Attorney General On the Brief

PETER C. HARVEY

ATTORNEY GENERAL OF NEW JERSEY

Attorney for Defendants

R.J. Hughes Justice Complex

P.O. Box 112

Trenton, New Jersey 08625

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 .......... 6

POINT II

PLAINTIFFS ARE NOT ENTITLED TO CLASS CERTIFICATION FOR EITHER THE PLAINTIFF OR DEFENDANT CLASS PURSUANT TO RULE 4:32 .......................... 13

CONCLUSION ......................... 18

FEDERAL CASES

Lassiter v. Department of Social Services, 452 LLJL_ 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) .........

STATE CASES Andrews v. Walton, 428 So.2d 663,665 (Fl. 1983) ...... 8, 9

Cashen v. Spann, 66 N.J. 541, 545-47 cert, denied,

423 U.S. 829, 96 S. Ct. 48, 46 L.Ed.2d 46 (1975) ....... 3

Department of Health v. Roselle. 34 N.J. 331, 339 (1961) ... 8

K.D. v. Bozarth, 313 N.J. Super.. 561, 568 (App.Div.1998) ... 3

Marshall v. Matthei, 327 N.J. Super. 512 (App.Div. 2000) ... 8

Matter_of__the Civil Commitment of D.L., 351 N.J. Super.

77 (App.Div. 2002) ..................... 11

Rodriquez v. Rosenblatt, 58 N.J. 281, 295 (1971) ...... 10

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

1996) ........................... 7, 9

Scalchi vs. Scalchi, 347 N.J. Super. 493 (App.Div.

2002) ...................... 1, 6, 7, 9, 10

Hawkins v. Harris, 141 N.J. 207, 214 (1995) .......... 3

STATE RULES

R. 1:10-2 ........................... 7

R. 1:10-3 ........................... 7

R. 4:32-1 .......................... 13

R_^ 4:32-l(a) ........................ 13

R. 4:32-l(lo) ........................ 13

R. 5:7-5 ........................... 7

PRELIMINARY STATEMENT

In this case, three individuals who have, for different reasons, failed to meet their child support obligations have petitioned this court for truly extraordinary relief. Although each plaintiff has been provided with all the process due them in the civil contempt proceedings instituted when they refused to make the court-ordered payments to their families, they now ask the court to order that they, and all other individuals who may fail to pay child support payments in the future, be provided with an attorney to represent them in any civil contempt proceeding that needs to be instituted to remedy their failure to pay.

However, the identical arguments plaintiffs raise in this action have already been thoroughly considered and firmly rejected by the Appellate Division. , Indeed, in Scalchi v. Scalchi, 347 N.J. Super. 493, 496 (App. Div. 2001), the court explicitly held that "[t]he current law in New Jersey . . . does not require that counsel be assigned to an indigent in a support enforcement preceding." This court is, of course, bound by the ruling of the Appellate Division and, accordingly, plaintiffs claims here must likewise be dismissed.

As this brief will demonstrate, plaintiffs have no cause of action. The Scalchi decision makes clear that plaintiffs in a child support payment proceeding do not have a constitutional right to counsel. In addition, plaintiffs' request that both a Plaintiff and a Defendant class be certified must fail because they have

p.5

failed to meet any of the requirements for established by the Rules of Court for such certification. Therefore, and for the reasons which follow, plaintiffs' Complaint should be dismissed.

STATEMENT OF FACTS

On February 14, 2003, Plaintiffs Anne Pasqua, Ray Tolbert, and Michael Anthony (collectively referred to as "Plaintiffs") filed a Complaint and Order to Show Cause in the Superior Court of New Jersey. In their Complaint, Plaintiffs named the Honorable Gerald J. Council, J.S.C., Honorable F. Lee Forrester, J.S.C., Honorable Deborah Poritz, Chief Justice of the New Jersey Supreme Court, and Honorable Richard J. Williams, Director of the Administrative Office of the Courts of the State of New Jersey, both in their official capacities and on behalf of all Superior Court Judges of the State of New Jersey* ". See Attorney Certification and Exhibit A {Complaint}.

Plaintiffs are all under child support orders issued by the Superior Court of New Jersey, Chancery Division, Family Part. Plaintiffs were arrested on civil contempt charges for failing to meet their child support obligations. See Exhibit A. Plaintiffs

"It should be noted that plaintiffs have named these judges incorrectly as defendants. The New Jersey State judges do not establish policy for the judicial system of New Jersey. Judicial policy issues are overseen and managed by the Administrative Office of the Courts ("AOC").

""It does not appear from the Complaint that plaintiffs seek monetary damages against these defendants. To the extent that any monetary damages are sought, these defendants would be entitled to judicial immunity for actions taken in their official capacities as judges of the State of New Jersey, Hawkins v. Harris, 141 N.J. 207, 214 (1995); Cashen v. Spann, 66 N.J. 541, 545-47, cert, denied. 423 U.S. 829, 96 S. Ct. 48, 46 L.Ed. 2 46 (1975); K.D. v. Bozarth, 313 N.J. Super. 561, 568 (App. Div. 1998). allege violations of their due process rights, contending that the judges failed to inform them of their right to counsel and, if indigent, to appoint such counsel at state expense. Plaintiffs assert that they were indigent at the time of their hearings,, continue to be indigent, and remain in arrears on their support obligations. See Exhibit A. As such, plaintiffs contend that there is a great likelihood that they will be obligated to appear in similar contempt hearings and may be deprived of their rights again. See Exhibit A.

Plaintiffs also seek certification of a plaintiff class consisting of indigent New Jersey residents under child support orders who may appear in similar contempt hearings. Plaintiffs further propose a defendant class consisting of all New Jersey Superior Court Judges. See Exhibit A.

In the Complaint, Plaintiffs ask for relief in the form of declaratory judgment that their constitutional rights to an attorney have been violated, and injunctive relief enjoining the Superior Court Judges from incarcerating Plaintiffs in the future; requiring Superior Court Judges to appoint counsel for Plaintiffs in the future, and requiring immediate review of cases of all persons presently incarcerated for non-payment of child support, as well as for payment of counsel fees and court costs. See Exhibit A.

-4-

p.8

The New Jersey Defendants now bring this Motion to Dismiss Plaintiffs' Complaint in Lieu of Answer and respond to Plaintiffs' Order to Show Cause.

-5-

p.3

ARGUMENT

POINT I

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

Plaintiffs' case is based in its entirety on their conclusion that due process entitles them to appointment of counsel at State expense. However, existing case law in New Jersey demonstrates that plaintiffs' contention is completely without merit. In civil contempt proceedings for the enforcement of child support, plaintiffs are not entitled to the appointment of counsel. Scalchi v. Scalchi, 347 N.J. Super. 493 (App. Div. 2002) . In Eicalclii, the defendant appealed from an order entered in an enforcement hearing resulting from an arrears for child and spousal support. Scalchi, 347 N.J. Super. at 495. Scalchi asserted he was indigent and entitled to the appointment of counsel. Scalchi claimed that he faced future incarceration due to his significant arrearages and, therefore, was entitled to a lawyer. Id. Thus, Scalchi raised the same arguments as plaintiffs do here. Significantly, the Appellate Division upheld the trial court's denial of Scalchi's request for counsel and concluded that there was no authority in the State of New Jersey in a civil proceeding for a right to counsel. Id. This same reasoning and result should apply in the case at hand.

-6-

p.3

ARGUMENT

POINT I

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

-6-

p.3

ARGUMENT

POINT I

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

-6-

p.3

ARGUMENT

POINT I

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

-6-

p. 10

Pursuant to R. 5:7-5, if an obligor fails to make support payments as directed by an order or judgment, the Probation Division responsible for monitoring and enforcing compliance shall notify the obligor that such failure may result in the institution of contempt proceedings. R. 5:7-5. If the failure continues, the court, in its discretion, may institute contempt proceedings in accordance with R. 1:10-2 and relief may be sought in accordance with R.__1:10-3 . _Id_._ The court may issue a warrant for failure to pay support. However, before a defendant can actually be incarcerated, a hearing must be held to determine if the defendant has the ability to pay and is presently capable of complying with the order. Scalchi, 347 N.J Super, at 495, citing Saltzman__v. Saltzman, 290 N.J. Super. 117 (App. Div. 1996}. If, based on the evidence adduced at the hearing, the court determines that a defendant has the ability to pay but is unwilling to do so, incarceration may be ordered as a coercive means to require payment, but not as a punitive measure. Id.

In Lassiter v. Department of__Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the United States Supreme Court refused to adopt a per se rule that due process requires appointed counsel for indigents in parental termination cases and reemphasized the principle that the right to due process is the right to judicial processes which are "fundamentally fair."

-7-

p. 11

Anyone facing contempt charges, either criminal or civil, is under threat of imprisonment. However, a distinction has historically been drawn between criminal contempt, which is punitive in nature, and civil contempt, which is remedial or coercive. Department of Health v. Roselle, 34 N.J. 331, 339 (1961) . In a criminal matter, "judgment must be a finite sentence, whereas if the proceeding is civil, incarceration ends when the need for coercion ceases, i.e. upon defendant's compliance with the order." Roselle, 34 N. J. at 339. It is well established that the legal justification for commitment for civil contempt is to secure compliance- Once it appears that the commitment has lost its coercive power, the legal justification for it ends and further confinement cannot be tolerated. Marshall v. Matthei, 327 N. J. Super. 512 (App. Div. 2000). Essentially, the obligor in a civil contempt holds the key to his own jail cell. The Sixth Amendment provides constitutional protections to a defendant in a criminal contempt proceeding because of its punitive nature. On the other hand, a defendant in a civil contempt proceeding is guaranteed a proceeding which is ''fundamentally fair' under the due process clause of the Fourteenth Amendment. Andrews v. Walton, 428 So. 2d 663, 665 (Fl. 1983). This is true in all civil contempt cases, not just those involving persons in arrears on their child support payments.

p. 12

In a footnote, Plaintiffs argue that the Appellate Division's decision in Scalchi is not binding here because it was allegedly limited to a finding that the Sixth Amendment did not require the appointment of counsel (Pbl6). Even if this were true, however, plaintiffs "14th Amendment" arguments must also fail. This is so because fundamental fairness is already incorporated into the criteria which serves as a prerequisite to imprisonment for non-payment of child support. To satisfy due process, a person can not be adjudicated guilty of failing to pay child support and sentenced to imprisonment unless the trial court finds that the person has the ability to make the payments. Saltzman, supra. An indigent parent cannot be imprisoned for failure to pay child support because, upon a showing of indigency, the trial court cannot make the essential finding that the indigent parent has the ability to pay. Since the parent who is unable to acquire the necessary funds will not be subject to imprisonment, "fundamental fairness" is satisfied and due process does not give rise to the right to appointed counsel. Andrews v. Walton 428 So.2 d 663, 665 (Fl. 1983) . In Andrews, the Florida court held that there are no circumstances in which a parent is entitled to court-appointed counsel in a civil contempt proceeding for failure to pay child support because if the parent has the ability to pay, there is no indigency, and if the parent is indigent, there is no threat of imprisonment. Id.

-9-

p. 13

Consistent with this distinction, New Jersey recognizes a defendant's right to counsel in a criminal matter entailing imprisonment. Rodriquez v. Rosenblatt, 58 N. J. 281, 295 (1971). However, the current law in New Jersey has not extended the Roctricruez case to require that counsel be assigned an indigent in a support enforcement. Scalchi, 347 N.J. Super. at 496. And, the fact that certain other states may require the appointment of counsel in such proceedings, a fact cited by plaintiffs in their brief, in not determinative here. The Scalchi court noted that the "fact alone that other states have imposed an obligation to appoint counsel in certain civil contempt proceedings for non-support is an insufficient basis for this court to do so, absent direction from our Supreme Court." Scalchi, 347 N.J. Super, at 496-497.

The New Jersey courts have complied with the fundamental fairness standard established in Lassiter. Pursuant to a January 23, 2002 directive from Judge Williams, each of the State's thirteen vicinages were advised that hearings for incarcerated child support obligors should be conducted within 72 hours and were reminded that ability to pay determinations must be made contemporaneously with any decision to incarcerate a child support obligor. See January 23, 2002 Memorandum from Judge Williams to Assignment Judges, attached as Exhibit B to the Certification of Diane M. Lamb. Further, the Administrative Office of the Courts is currently drafting a best practice for State-wide implementation on

-10-

p. 14

these issues. See Certification of John P. McCarthy, Jr. Plaintiffs cite anecdotal evidence of cases where individuals were allegedly incarcerated despite their indigency. These cases predate the directive referred to above. Further, without review of the facts of each case, it is not possible to determine if the parties were truly indigent.*

Plaintiffs cite the Appellate Division case, In the Matter of the Civil Commitment of D.L., 351 N.J. Super. 77 (App. Div. 2003) for the proposition that indigent persons have a due process right to appointed counsel. However, D. L. is clearly distinguishable from the present matter. In D.L., indigent persons appealed orders of the Superior Court requiring commitment under the Sexually Violent Predator Act (SVPA) . The court held that indigent persons have a due process right to appointed counsel on appeal. Although D.L. is a civil, rather than criminal matter, it was not a contempt proceeding, but a commitment proceeding. Both proceedings can result in the curtailment of liberty, however, the distinction is that in the present matter, if the obligor does not have the ability to pay, he or she is not incarcerated. If the obligor does have an ability to pay, he or she is incarcerated as a coercive measure. There is no coercive considerations with respect to civil commitments, and thus D.L. is inapposite.

*0f course, any person who disputes, in an individual case, the court's determination that they are not in fact indigent, has the opportunity to appeal that decision.

In summary, the Scalchi decision makes clear that plaintiffs in a child support payment proceeding do not have a constitutional right to counsel. Therefore, plaintiffs' Complaint should be dismissed.

POINT II

PLAINTIFFS ARE NOT ENTITLED TO CLASS CERTIFICATION FOR EITHER THE PLAINTIFF OR DEFENDANT CLASS PURSUANT TO RULE 4:32._______

Plaintiffs have moved to have both the Plaintiff Class and the Defendant Class certified in this matter. Plaintiffs have no evidence to substantiate their claims as to numerosity, commonality, typicality or adequacy of representation. They have presented only conclusory statements in their brief with no proof of the veracity of their claims. Accordingly, Plaintiffs' motion for class certification for the Plaintiff Class and the Defendant Class must be denied.

Class actions are governed by R. 4:32-1 et seq, ("Rule"). The Rule sets forth a two-step process for determining if a lawsuit may proceed as a class action. First, plaintiffs must satisfy the four predicates for certification contained in R. 4 : 32-1(a) concerning (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Second, plaintiffs must demonstrate that their case complies with one of the subparts to R. 4:32-1fb). The Rule requires the court to perform an inquiry and analyze the elements of the substantive claims in order to evaluate whether the requirements of the Rule have been met. The court should look beyond the allegations in the complaint to determine whether plaintiff has satisfied the requirements of the Rule.

-13-

p. 17

Plaintiffs have failed to establish numerosity, commonality, typicality, or adequacy of representation for either the proposed Plaintiff Class or the proposed Defendant Class. In their brief, Plaintiffs offer only conclusory statements as to the satisfaction of each requirement with no substantive proof offered to verify the statements. An examination of the requirements with respect to each proposed class will demonstrate that Plaintiffs have failed to meet their burden of showing that the classes should be certified.

Plaintiffs contend that the Defendant Class should consist of all New Jersey Superior Court judges. With respect to numerosity, Plaintiffs offer the fact that there are over 500 Superior Court Judges in New Jersey, and of these judges more than 150 judges are assigned to the Family Part. Plaintiffs claim in their brief that "any Superior Court judge can be temporarily assigned to any division of the Superior Court on the directive of the Supreme Court". (Pb23). This effects Plaintiffs' contention that the Defendant Class has commonality. The fact that not all New Jersey Superior Court judges conduct child support enforcement hearings means that there would be many judges in the Defendant Class who did not belong there because Plaintiffs' claims do not apply to them. Those temporarily assigned to the Family Part may not be as familiar with enforcement proceedings as a judge regularly assigned. In addition, each judge in the State who does

-14-

p. 18

hear this type of matter conceivably may have his or her own method of proceeding in these matters. Therefore, it is conceivable that Plaintiffs' claims would not even apply to all of the Superior Court judges who do hear these types of matters. Thus there are not common questions of law and fact as to the proposed Defendant Class. Plaintiffs are making assumptions and presenting conclusory statements rather than presenting evidence. The fact that all judges do not hear these types of matters and that different judges may conduct these matters differently would also speak to a lack of typicality in the Defendant Class.

Finally, with regard to the adequacy of representation of the Defendant Class by the named defendants, Plaintiffs have failed to establish that the defenses of all the Superior Court judges would be the same as those named to represent the Class. While the judges named do hear child support enforcement matters, not all Superior Court judges do. The named defendants' defenses to Plaintiffs' claims will be different from each other and from those Superior Court judges who do not hear such matters at all. Therefore it cannot be said that the defendants named as representatives will adequately represent the class of Superior Court judges because their interests as judges who hear child support enforcement hearings or those who supervise the court system are different than other Superior Court judges who do neither. Clearly Plaintiffs have failed to carry their burden of

-15-

p. 13

demonstrating that the four requirements of class certification have been satisfied as to the Defendant Class.

Likewise, Plaintiffs have failed to offer substantive proof to support their contention that the Plaintiff Class should be certified. With respect to numerosity, Plaintiffs do not have proof of the numbers relating to the proposed Plaintiff Class and would have to obtain those numbers through discovery in this matter. Plaintiffs assert that, in Leonard v. Blackburn, this Court found that there were in excess of 50,000 enforcement hearings last year. (Pb22). However, plaintiffs cannot show that all of those who participated in enforcement proceedings are indigent, or, indeed, the exact nature of each litigant's financial status'. With respect to commonality, Plaintiffs admit "the precise underlying facts surrounding each case may differ." See Court's Opinion in Leonard, dated January 22, 2002. Again each plaintiff's case here is fact sensitive. Thus, there is no commonality amongst the proposed Plaintiff Class. There are only many individual decisions by numerous judges and case-specific experiences of an indeterminate number of parents. Thus, mini-hearings would be required in order to determine whether a proposed class member was indigent, was subjected to incarceration, was provided with an ability to pay hearing, or was incarcerated for some other legal problem. Therefore, Plaintiffs have failed to satisfy the commonality requirement as well as the numerosity requirement.

-16-

p.20

For the same reasons that Plaintiffs have failed to prove commonality, they have also failed to demonstrate typicality. Each proposed Plaintiff Class member has a unique, case-specific experience based on which judge he or she appeared before, the reasons for this failure to pay child support, and the specific facts regarding the ability to pay hearing that is not necessarily the same experience encountered by the named Plaintiffs in this case. Plaintiffs cannot simply generalize that all parents have had the same experience as the named Plaintiffs without some kind of substantiation. Plaintiffs offer only conclusory statements with no substantive proof. This also speaks to Plaintiffs' ability to represent all the members of the proposed Plaintiff Class. With each member having an individual, case-specific experience, all members may not have the same claims and/or defenses. Thus, Plaintiffs have not presented any evidence to support their contention that they can adequately represent the proposed Plaintiff Class.

Accordingly, Plaintiffs' request for certification of the Defendant Class and the Plaintiff Class in this matter must be denied.

-17-

p.21

CONCLUSION

Based on the foregoing, Defendants' Motion to Dismiss Plaintiffs' Complaint should be granted.

Respectfully submitted

PETER C. HARVEY

ATTORNEY GENERAL OF NEW JERSEY

By:

Diane M. Lamb

Deputy Attorney General

DATED:

-18-