UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
: Docket No. 01-2735
MICHAEL
ANTHONY, et al., :
: United States Court House
vs. : Independence Mall West
: 601 Market Street
GERALD
COUNCIL, et al., : Philadelphia, PA 19106
:
Appellants : April 24, 2002
TRANSCRIPT OF ORAL ARGUMENT OF APPEAL
BEFORE THE HONORABLE ANTHONY J. SCIRICA,
THE HONORABLE
MARJORIE O. RENDELL AND THE HONORABLE JOHN
T. NOONAN, JR.
APPEARANCES:
For the
Plaintiff Class of
Appellants: DAVID PERRY DAVIS, ESQ.
31
Jefferson Plaza
Princeton,
NJ 08540
For the
Defendant Class of
Appellants: BARBARA J. STOOP, ESQ.
Deputy
Attorney General
P.O.
Box 112
Trenton,
NJ 08625
Proceedings recorded by electronic sound
recording, transcript produced by
transcription service.
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THE
COURT: Mr. Davis.
MR.
DAVIS: Your Honor, may it please the
Court, David Perry Davis on behalf of the putative plaintiff class of
appellants, Michael Anthony, Anne Pasqua and all persons similarly situated.
I would
like to reserve four minutes for rebuttal.
THE
COURT: Fine.
MR.
DAVIS: Judge, as the panel is aware,
our federal courts have [a virtually] unflagging obligation to exercise the
jurisdiction that's given to them.
Younger provides an exception to this general rule, and it is the
exception, not the rule, according to the United States Supreme Court. However, for Younger to be implicated there
must be a pending state proceeding.
I don't
believe that a fair reading of the record can leave even a question as to
whether there's a pending proceeding.
There's a threatened proceeding.
There is a possibility of a future proceeding, but there is no pending
proceeding in these cases.
The
district court rule that -- based on [UIFSA] which is an interstate child
support jurisdiction statute has created somehow a contest vis-à-vis the
federal state court as to who should have jurisdiction to enforce child support
rules.
Initially
I want to stress and keep a focus here that this is really not a child support
issue. It's an appointment of counsel
issue. The United States Supreme Court,
in a unanimous ruling, in Lassiter v. Department of Social Services stated that
we cannot incarcerate an indigent citizen in this country unless they are represented
by counsel at the hearing.
The
state that we're arguing this in today, Pennsylvania, will appoint
counsel. Every other state and
territory within the Third Circuit appoints counsel in child support
matters. New Jersey does not.
When I
say Lassiter is unanimous, I mean it was unanimous as to the point. The more liberal members of the court had
argued that the standard for appointing counsel should be lower, that any
consequence of magnitude or potential consequence of magnitude should trigger the
right to counsel being appointed for indigent litigants.
However,
everyone was for it, it was unanimous that if you're facing incarceration you
should have counsel.
THE
COURT: Let's assume -- let's assume we
agree with you. The question is what
court should this be litigated in?
MR.
DAVIS: Judge, Section 1983 provides a
presumption of the federal forum for a federal civil rights -- I would also ask
the court to notice that subsequent to the filing, my adversary had sent a case
to the court and that it be considered, and I had joined in that request. And I had submitted a transcript from a
state level civil report, Leonard v. Blackburn. In that case the Superior Court of New Jersey, the Assignment
Judge of Mercer County ruled that she did not have jurisdiction to entertain a
class action against her fellow sitting judges in the Superior Court.
The
decision that was submitted by my adversary, and I also submitted a copy, and I
understand how correct -- incorrectly it was submitted directly to Your Honors,
and I'm sorry about that. In state
court it's common practice when oral argument is on the horizon.
In that
case the Appellate Division of the State of New Jersey has directly
contradicted the mandate of the Supreme Court in Lassiter and indicated that
these indigent litigants who are facing incarceration can be compelled to
attend hearings where they face the loss of liberty without having counsel.
New
Jersey is, to the best of my research, one of three states in the entire
country that continues to do this, continues to cause people that are in
arrears in child support to be subjected to incarceration without having
counsel appointed.
THE
COURT: Why should you not go up to the
New Jersey Supreme Court in the Appellate Division --
MR.
DAVIS: I agree that that may be an
option. I also believe that under
Section 1983 the federal court is also an option, and I -- again, the case law
is clear that the federal forum is available for the vindication of federal
rights.
THE
COURT: Well, is this an odd -- you
know, if we look at the factors for abstention, particularly whether this is an
ongoing proceeding or not, can a good argument be made that in these kinds of
support proceedings that they are ongoing?
Not perhaps for some of the reasons that the district judge gave, but
because the nature of it. I mean,
sometimes they're initiated in other states.
Even if they're initiated within the State of New Jersey they continue
until -- they continue to the age of majority for the young person or can
include college education as well.
They're subject to many modifications, changed circumstances. There's -- you know, there's one file. The file stays open. At least -- I'm not familiar with New
Jersey, but I was a state court judge in Pennsylvania, and I know that there's
one file and it continues, and it gets changed a lot. Why is it that different from the ordinary kind of civil case?
MR.
DAVIS: I would say that that would be
to extend Younger, Judge, because there has to be a pending proceeding. Yes, the Superior Court retains
jurisdiction, but again, I -- we're now focusing on child support and we're now
focusing on family law. These should
not be the focus of this courtroom -- issue of appointment of counsel when incarceration
is at issue. It's not a child support
issue.
The
Supreme Court has said when a -- does not seek in any way divorce or
alimony. We could add child support
into there. It is not -- it does not
fall within the domestic relations exception.
I'm not sure that Your Honor is exactly arguing with the domestic
relations exception.
THE
COURT: I'm not. I'm purposely staying away from it.
MR.
DAVIS: I would stand firmly on -- it
would be incorrect to focus on whether or not this is a family court issue, a
child support issue, an alimony issue.
It's an incarceration issue.
And the
United States Supreme Court has issued a unanimous mandate that it was going on
-- what's going on today, right now, in New Jersey cannot happen
constitutionally in this country.
There
was an article that I had enclosed from a newspaper that indicated that the
AOC, the Administrative Office of the Courts in New Jersey states that there's
over 50,000 enforcement hearings going on every year in the State of New
Jersey.
THE
COURT: But don't you, in fact, argue
the point that Judge Scirica is making, and that is that your clients are very
likely to be hauled back into this system again so that they face that threat,
if you will, which means that it is an ongoing -- an ongoing situation. I assume you're trying to get yourself into
the most prospective relief category. But by doing so aren't you also
nullifying or annulling existing state court system which seems to be what the
-- what the pending action element is aimed at?
MR.
DAVIS: It causes the appellants to walk
something of a fine line --
THE
COURT: Right.
MR.
DAVIS: -- because under Lyons we must
allege that there's a probability of a recurrence.
THE
COURT: Right.
MR.
DAVIS: And --
THE
COURT: And by doing so --
MR.
DAVIS: -- it turns it into a Catch-22,
because if we don't allege the possibility of probability of a recurrence, then
we can't get an injunction. And if we
do allege it, then there's an ongoing system.
The
Court has been explicit that it's not the existence of a system, it's a pending
proceeding. I proposed a very simple
test that you should ask as to the plaintiffs.
When is the next court date as to these --
In this
case the answer to that question is never, potentially never.
THE
COURT: Well, it's -- it all depends on
whether there's a changed circumstance or whether the defendant doesn't pay his
monthly payment or -- then he's back into court the next month.
There's
not a fixed date certainly, but it could happen at any particular time.
MR.
DAVIS: It could happen and from the
record in this case it's clear that in one of these cases the arrears had
developed over a period of a couple of years.
THE
COURT: What would be your strongest
case assuming there is jurisdiction and there's no certainty that they will be
-- come up again in New Jersey?
MR.
DAVIS: I would say, Judge Noonan, that
there's several of the cases that are cited, and they're -- transcripts, so the
arrears had gone on for a long time.
THE
COURT: No, but what Supreme Court case
would say we have jurisdiction in this -- in these circumstances?
MR.
DAVIS: Section 1983 is where I would
begin --
THE
COURT: No, I would think we'd need a
case saying that under these circumstances there's an actual controversy.
MR.
DAVIS: I actually set out in my brief
to the District Court about a page and a half of citations where Federal
District Courts and Federal District Courts of Appeal have addressed this
issue.
THE
COURT: Well, how about a Third Circuit
or Supreme Court case?
MR.
DAVIS: Supreme Court case I would have
to say Lassiter is most on point if we focus on the issue of incarceration
without counsel.
THE
COURT: Well, that's the merits
issue. We're talking about saying that
-- a real proceeding has to be actually pending. In fact, the District Court relied on the Utigy (phonetic) case,
which didn't say that, which said opportunity to raise the constitutional
claims in the procee -- in the system is sufficient for us to examine comity so
I think what Judge Noonan's getting at is a lot of the Supreme Court cases seem
to not be drawing the line that you're drawing.
MR.
DAVIS: Before we even get into the
issue of comity, I think we have to have a pending proceeding, and I think when
there's no pending proceeding, when there is no scheduled court date as to the
plaintiffs, we shouldn't even move on.
It sounds like Your Honor is moving to the second set of --
THE
COURT: Well, that -- but no, before we
get to Younger the question is do we have jurisdiction? Is there an actual controversy? And when there's no pending proceeding what
Supreme Court case tell us we have an actual controversy?
MR.
DAVIS: Again, it comes to the fine line
of having to allege this under Lyons out of alleged probability of future
proceedings versus an actual pending proceeding.
I would
argue that anybody that's under arrears is subject to at any time receiving
notice from Probation saying, "You must -- hearing," whereas you may
not -- as the judges -- "Bring your toothbrush." That could happen at any time if someone is
in arrears on a child support obligation.
THE
COURT: Well, I say under some order to
keep up payments they're not going to go back and get the whole amount. They just have to keep up with whatever
they're being ordered to pay; isn't that right?
MR.
DAVIS: In many of these cases there's a
legitimate question of the ability of the payer to keep up.
THE
COURT: Well, that's -- that's one of
those contingencies of what's out there.
We don't know whether A, B or C is going to keep up the order. It's not an actual or even pending threat.
MR.
DAVIS: I would -- I would submit that
the record as it was submitted for District Court even on the preliminary -- as
a preliminary state is such that we can determine that there's a probability of
a future occurrence, 'cause -- procedure.
THE
COURT: And how would we go about
fulfilling the probability?
MR.
DAVIS: The fact that they're under
arrears. There was a court rule cited
in 535, I believe it is, in my reply brief that sets out that at any time that
someone's in arrears they may receive a notice from probation.
THE
COURT: But once they -- once they come
in. They owe $100,000, and they're
ordered to pay 100 a week or something.
Now, presumably that order was set with some attention to what they're
earning.
MR.
DAVIS: Counsel reported -- Your Honor's
referring to the one person who actually did have $100,000 in arrears, he was
the father of four children by three different mothers, and he, as a
non-attorney, didn't know that he could have --
There's
no way -- he never earned enough to keep up with all three orders. If counsel had been appointed I believe
there either would have been malpractice or there would have been an
appropriate application.
THE
COURT: Well, that may -- I mean, I
don't think anybody questions the need for counsel. The question is whether we've got a current controversy. And the question is how do we know if
somebody is going to be called back in?
MR.
DAVIS: Again, it's a fine line between
Lyons and there being a lack of a controversy.
They're all in arrears, and therefore, they all remain subject to --
THE
COURT: But it isn't the fact that
they're being in arrears that would produce this. They're back in court is they're failing to pay a current order;
isn't that right?
MR.
DAVIS: Perhaps their inability to pay.
THE
COURT: So then we -- what we really
have to know is are they unable to pay the current court order.
MR.
DAVIS: I would think that that's a
factual determination that would have to be made in each case.
THE
COURT: Well, I should think so, before
you had a controversy.
MR.
DAVIS: I would submit that the record
has been submitted in the District Court and the transcripts that are there
indicate that these issues have been discussed -- most of the cases that come
up.
THE
COURT: Is there any reason to believe
that this cannot be properly litigated in the state court system?
MR.
DAVIS: Yes, the two opinions that were
submitted, one by my adversary and one by myself, indicate first of all that
the Superior Court of New Jersey has held that it cannot entertain class action
against its own judges. And secondly,
the -- opinion which was the New Jersey Appellate Division, which indicates
that -- which ignores Lassiter.
THE
COURT: Well, it may be wrong, but it's
capable of being litigated through the system, and it can go to the New Jersey
Supreme Court, and it can go to the United States Supreme Court from there.
MR.
DAVIS: I would also submit that this is
an issue, obviously, of constitutional magnitude. It goes to the most fundamental constitutional rights that our
citizens enjoy. Despite the fact that
possibly go through another appellate case and application for -- and then
perhaps back to the District Court.
It's already been a year and a half since this case -- it was two years,
I believe, since this case was filed.
This is an issue that's -- of some importance, and it does implicate the
constitution in a way that there should be some kind of emergent --
THE
COURT: The New Jersey Supreme Court is
a certiorari court?
MR.
DAVIS: Yes, I believe so. It's a certification.
THE
COURT: Certification.
THE
COURT: They haven't been asked to take
this issue?
MR.
DAVIS: To the best of my knowledge, no.
THE
COURT: 'Cause it seems like maybe
that's at least a step.
MR.
DAVIS: I've never disputed that this
issue -- well, up until Leonard v. Blackburn (phonetic) and Judge Feinberg
holding that she can't entertain a class action against other Superior Court
judges, I have never disputed that it could also be brought in state court. But the 1983 -- also federal court.
THE
COURT: Well, you know what made it
class action, if you've got the Supreme Court of New Jersey saying the rules
are invalid.
THE
COURT: Well, that's true. There's also, I would say, the possibility
at least that counsel would be compensated with a class action, and I think
that's -- public policy -- when the -- in a section 1983. If you bring this as a civil rights action
and prevail, that counsel be compensated.
If you bring it as a habeas corpus or just a -- through the system, it's
a lot of work.
THE
COURT: No compensation, yeah.
MR.
DAVIS: -- no chance.
THE
COURT: Mr. Davis, thank you very much.
MR.
DAVIS: Thank you.
THE
COURT: We'll have you back.
Ms.
Stoop?
MS.
STOOP: Good morning, Your Honors. I am Barbara Stoop. I am a Deputy Attorney General with the
Division of Law of the State of New Jersey, and I'm here representing the four
appellees.
The
appellant tries very hard to convince the Court that there is no pending
proceeding, pending state proceeding.
However, upon a reading of Huffman v. Pursue Limited it's clear that
there is a pending proceeding in this case.
As the
Court --
THE
COURT: That would -- excuse me. That would satisfy the federal jurisdiction;
is that correct?
MS.
STOOP: I think --
THE
COURT: Are you conceding that there's
federal jurisdiction here?
MS.
STOOP: I am -- I am conceding that
there is possibly federal jurisdiction here; however, this is an issue that
should be --
THE
COURT: Abstained.
MS.
STOOP: -- abstained.
THE
COURT: All right.
MS.
STOOP: And should be brought in the
state court. This is an issue of
tantamount import to the State of New Jersey.
It's dealing with how they conduct their child support and their child
support enforcement hearings.
I
believe that the District Court properly recognized that the child support area
is a unique area of the law, and it has laws unto itself, unlike any other
area.
One of
those laws is the ability of a person, a child support obligor, to appeal at
any time, come to the court at any time with any child support issues and bring
them before the state court, the -- at the trial level, at the appellate level
and finally to the Supreme Court.
The
issue -- the case is open. Any time a
child support enforcement is brought in any of the -- these appellants' cases,
it is brought under the Family Court matter.
These
cases are considered open as far child support issues are concerned. And these courts provide an adequate
opportunity for these appellants to bring these issues, these constitutional
issues, and I believe that what the Supreme Court was trying to say in Huffman
was that when you initiate a case or you have a case initiated in the state,
finish it in the state. Don't come to
the federal court until you've finished it in the state. Once you've finished it in the state and you
receive no satisfaction there, then bring it to us.
Younger
--
THE
COURT: Well, are you saying there has
-- there's a form of exhaustion that they have to go through? I didn't think that that was required.
MS.
STOOP: I believe, Your Honor, that the
cases that were referred to by my adversary as not requiring exhaustion of
state remedies were referring to cases where there was not a case already
initiated in the state.
I -- my
reading of those was that you don't have to exhaust state remedies, meaning you
don't have to have a case in the state first.
You can come right to us with 1983 cases. But Huffman says if you already have something started in the
state, then you need to finish it in the state. After you've finished it in the state and exhausted your state
remedies, your state appellate remedies there, then come to us.
THE
COURT: What about the -- this decision
that says that the New Jersey courts won't entertain class actions against
other New Jersey judges?
MS.
STOOP: Your Honor, the case that Mr.
Davis was referring to was Leonard v. Blackburn, which he and I had in the
state court. The issue of
representation was not addressed in that matter. Mr. Davis had brought a case having to do with ability-to-pay
hearings in New Jersey.
We --
the issue of representation was not addressed in that case. What the judge had indicated in that case
was that Mr. Davis was requesting that she, as a trial level judge, rule on
whether or not other trial level judges were, in fact, conducting
ability-to-pay hearings that were sufficient to satisfy state policy. And as a trial level judge, the trial judge
said she was not -- she did not have the authority to make that kind of a
ruling, and she advised Mr. Davis that that issue should be taken before the
New Jersey Appellate Division.
THE
COURT: Well, has the issue before us
been litigated in a trial court and then gone to an appellate court?
MS.
STOOP: Yes, it has, Your Honor. It was, as cited by Mr. Davis, the case of
Scalchi v. Scalchi. And in that -- in
that decision the Appellate Division indicated that because the New Jersey
Supreme Court had not yet acted upon this, and because at this point there was
no direction that people, such as appellants, should be represented or have appointed
counsel, that they could not reverse the trial court's decision.
However,
I believe that this case also issues an open invitation to someone to bring
this to the New Jersey Supreme Court and let them deal with it. The Appellate Division basically didn't say
there's absolutely on way that New Jersey is ever going to appoint counsel in
these types of cases, but merely indicated that it was awaiting direction from
the New Jersey Supreme Court.
THE
COURT: Mr. Davis says that we are --
we're missing the point here if we look at this as a domestic relations
issue. This is simply a right to
counsel issue and fits neatly under 1983 and ought to be in federal court.
MS.
STOOP: I'm afraid I disagree. Although it does have implications of
constitutional questions, there is also the right or the need for New Jersey to
be able to enforce their child support and the need for them to develop their
system for enforcing child support.
I think
it's also important for this court to understand that Mr. Davis makes it sound
like everyone who comes before the Family Court ends up in jail. And I want to make it very clear that New
Jersey state policy is that no indigent, no indigent will be imprisoned or
incarcerated. The state policy is that
there must be an ability-to-pay hearing before any child support obligor is
incarcerated.
So, if
you look at it that way, under Lassiter, these appellants would not really be
entitled to appointment of counsel, because there's no way if they are indeed
indigent that they face a risk of loss of liberty.
THE
COURT: Well, I think that -- you know,
I think that depends on which side you're standing.
MS.
STOOP: Obviously.
THE
COURT: You're right. If you're a litigant you would prefer to
have a lawyer in most cases to help you convince the factfinder that you don't
have the ability to pay.
MS.
STOOP: But there are -- there are ways
of getting an attorney, Your Honor, other than having them appointed.
Mr.
Davis works with indigent -- indigent clients.
There are other people in New Jersey who work with indigent
clients. There's also a lawyer
service. And, in fact, on the notice
that's sent out -- on the notice that is sent out there is a phone number listed. "If you cannot afford an attorney and
you want one, call this number."
And
people can call and take advantage of that.
It's not -- it's not like they cannot have an attorney there.
THE
COURT: That is, they are pro bono
lawyers that --
MS.
STOOP: I beg your pardon?
THE
COURT: The number that is cited, is
that for pro bono lawyers or --
MS.
STOOP: That is for Lawyer Services.
THE
COURT: Lawyer Services, which is
volunteer on the part of the organized part?
MS.
STOOP: Correct.
THE
COURT: Okay.
MS.
STOOP: Correct.
THE
COURT: Has an appeal been filed in
Scalchi?
MS.
STOOP: I do not know, Your Honor. It
was --
THE
COURT: Just earlier this month.
MS.
STOOP: Yes. It was just recently released, and I am not aware whether an
appeal was --
THE
COURT: Let me ask you this. It may be that it would be better for the
New Jersey Supreme Court to make this decision, but why is a federal court
prohibited from making this decision?
Why is abstention required in a situation like this?
MS.
STOOP: I think for several of the
reasons that we've already discussed, as well as the fact that there is -- my
understanding of the reasons for Younger is to make sure that there is an
opportunity to be heard. And there's no
reason for the federal court to intervene in a matter where there is an
opportunity for the appellant --
THE
COURT: Well, we have -- we're -- you
know, we have concurrent jurisdiction in many areas. We have dual court systems, and sometimes people can face us in
state court and sometimes in federal court.
And it's appropriate in many cases to make that election.
MS.
STOOP: But this is something that is
very important to the State of New Jersey.
This is something that is integral to their judicial system. And the federal court, under comity, has
many times abstained from hearing something that affects the state's judicial processes. And this is one of those -- this is one of those issues. This is the state's judicial process that
Mr. Davis is asking this panel to deal with or to rule on. This is something that the State of New
Jersey should deal with and rule on.
THE COURT: Seeing the operation of the state courts and
our third circuit, one would have thought that the New Jersey Supreme Court
would have been the first of the supreme courts to provide for this legal
representation. And I was a bit
surprised to find out it was not.
MS.
STOOP: I'm not sure the issue has ever
been put before it, Your Honor. I'm
sure that if it had been put before it, it would have ruled. But if -- they can only rule on what's
brought before them. And as I indicated
before, there is -- there is not a denial of the right to representation in
child support hearings.
The
notice specifically indicates that if you would like to have an attorney
present you may bring one. If you
cannot afford an attorney you may call this number and, you know, and see if
you quality for an attorney from Lawyer Services.
So, I
don't know why it's never come up before.
Perhaps because no one has ever had this problem before. Also, they all have the right to appeal pro
se if they wish. And several of them do
appeal pro se.
THE
COURT: Any other questions?
Okay,
thank you very much, Ms. Stoop.
MS.
STOOP: Thank you.
THE
COURT: Mr. Davis?
MR.
DAVIS: Initially I had indicated -- I
made a passing reference to my reply brief on the issue that seemed to be the
center of the question. Page 7 of the
reply brief quotes the New Jersey Court Rule, "If a person fails to make
payments, the Probation Division responsible to monitor and enforce the
compliance may re -- shall notify such person by mail that such failure may
result in the institution of contempt proceedings. The Court may then, in its discretion, institute contempt
proceedings, and the aggrieved party may apply for relief." That is the process under which a contempt
hearing is scheduled by the Court. Any
person in arrears is subject to this rule at any time. They may -- "may" being the key
word -- be brought into court and subjected to incarceration.
They
are not now facing these hearings, thus giving a Younger no applicability here;
however, they may at any time, according to this rule, be brought into court,
thus satisfying the test --
To very
briefly respond, my understanding of Younger is that it's with respect -- it's
the concepts of federalism and it's to minimize the interference with ongoing
state proceedings by the federal court when there is something going on in the
state court. Originally criminal and
then it was expanded -- extended to civil and administrative proceedings.
When we
had a situation where, as the rule that I just cited, it's a may situation,
there's on strong enough statement to convince the District Court correctly
that Section 1983 should not apply.
THE
COURT: There is an active case
considering this very issue on its way up in the New Jersey court system.
MR.
DAVIS: I believe -- I'm certain that
the time for certiorari -- to apply for certiorari has expired in that case, in
Scalchi.
THE
COURT: But don't we look as whether
there's an opp -- do we look at an opportunity for appeal? Don't we -- well, don't we see that at least
there was that opportunity and it was forgone.
MR.
DAVIS: I never disputed that this could
have been filed in the state court.
Realistically, let's say that this court holds the abstention. We go back, refile in the state court. It's in Mercer County. That's the appropriate venue, because that's
where the defendants are located. It
would go back before Judge Feinberg, the Assignment Judge of Mercer who just
two months ago, three months ago, ruled that she cannot entertain a class
action against other sitting Superior Court judges.
THE
COURT: Well, but I'm looking at
Scalchi. That's a different issue from
what was before her.
MR.
DAVIS: Again, if there was a litigant
out there who was simultaneously indigent and able to fund an appeal under the
United States -- of the New Jersey Supreme Court --
THE
COURT: Getting back to fees again, huh?
MR.
DAVIS: It could go to that. It could go that way, yes, but it has not
gone that way, and Section 1983 doesn't contain a requirement that if you can
litigate this in state court, do it there.
It says that if you have a valid federal claim you may file it in
federal court.
THE
COURT: Yes.
MR.
DAVIS: If I may just very briefly
respond to a couple of the other comments that my adversary -- Leonard v.
Blackburn was about whether the ability-to-pay hearings were adequate that were
being held, whether or not there was an inquiry. There were several transcripts closed in there actually in with
the submission to this court as well, where the state could would say, "You
owe $10,000 in arrears. Do you have
5,000?" The person says,
"Judge, I've never seen $5,000."
And they'll say, "Well, you'll go to jail until you see it."
And
that is a shortening of it, but it really is an extension of what goes on in
the state court proceedings. And it's
-- again, the transcripts, there are actual -- this Court can take judicial
notice of -- were included to the district court.
Yes,
there's a public policy, a need for New Jersey to enforce its child support
orders; however, that ignores that every state that does appoint counsel,
including Pennsylvania, Delaware, every other state that I know of that does
it, doesn't have a lower child support collection rate. Some of them have higher child support
collection percentages than New Jersey.
The appointment of counsel doesn't mean that child support's not going
to be, in the real world, not collected.
I think
all of us as former practicing attorneys and the experience with the system
knows that when the litigant hears from their own attorney -- they're going to
have to pay --
THE
COURT: We'd rather hear from -- deal
with the lawyer than with the pro se litigant.
MR.
DAVIS: Pro se's, as my adversary
indicated, can appeal, but generally -- there were some emergent appeals that
were brought. There were manifest
errors according to New Jersey Appellate Division. Every single person was let out.
Legal Services, by its charter, does not handle defendants in child
support actions. I can tell you that as
well, the Court having spoken to them.
The case Huffman as cited by my adversary was in 1975; all of the civil
rights I cited were subsequent to that on Page 15 of my brief.
Does
the Court have any further questions or
--
THE
COURT: Good. Well done by both sides.
MR.
DAVIS: Thank you, all.
THE
COURT: Take the case under advisement.
(Recording ends)
* * *
C E R T I F I C A T I O N
I,
Betsy Wolfe, certify that the foregoing is a correct transcript from the
electronic sound recording of the proceedings in the above-entitled matter.
______________________________ ____________________________
Betsy
Wolfe Date
J&J
COURT TRANSCRIBERS, INC.