Class Action / Civil Rights under 42 U.S.C. § 1983
New Jersey Law Journal
October 25, 2004
Precedential Overkill
By Martin L. Haines
New Jersey Law Journal
October 25, 2004
In Pasqua v. Council, A-6875-02T3, the Appellate Division chastised an
assignment judge for her failure to follow precedent. It appears,
however,
that the appeals court was wrong; the case it relied on as precedent was
not
precedential.
Pasqua involved three indigent plaintiffs who had failed to comply with
court orders requiring them to pay child support. All of them were
substantially in arrears and had been incarcerated as a result of their
failure to satisfy the order - a contempt of court if their failure to
pay
was willful.
The three named plaintiffs represented all indigent child support
contemnors
facing incarceration at enforcement hearings. The case was filed as a
class
action under the Civil Rights Act, 42 U.S.C. 1983. It relied on the
Fourteenth Amendment in arguing that the plaintiffs were entitled to the
assignment of counsel.
The assignment judge, relying on the Fourteenth Amendment, agreed.
According
to the Appellate Division, she failed to follow binding precedent,
Scalchi
v. Scalchi, 347 N.J. Super. 493 (App. Div. 2002), which barred the
appointment of counsel.
Scalchi involved an indigent pro se party who had failed to pay
court-ordered support monies and who, facing imprisonment, requested the
appointment of counsel to represent him. The Scalchi court denied the
request on the ground that it was not required by the right-to-counsel
provisions of the Sixth Amendment.
The Appellate Division said the issue raised in Pasqua "is the same
issue
that another panel of this court addressed in Scalchi." It reversed
the
assignment judge's decision, saying "[d]isagreement with an
appellate
court's reasoning, . . . or the view that its analysis was flawed, is
not a
sufficient basis for deciding a case contrary to a direct appellate
holding
on the same issue."
The problem: good law but misapplied law; Scalchi and Pasqua did not
involve
the "same issue"; the appellate court defined precedent
incorrectly.
Allegheny County General Hospital v NLRB, 608 F.2d 965, 969 (3d Cir.
1979),
provides a reliable definition of precedent: "A judicial precedent
attaches
a specific legal consequence to a detailed set of facts in an adjudged
case,
or judicial decision, which is then considered as furnishing the rule
for
the determination of a subsequent case involving identical or similar
material facts and arising in the same court or a lower court in the
judicial hierarchy."
Dissimilar Facts
In Scalchi, the court considered the effect of the Sixth Amendment on
the
right to counsel. It is a fact that it did not consider the effect of
the
Fourteenth Amendment on that right. It therefore did not involve
"identical
or similar material facts" to those in Pasqua.
Henry Campbell Black, the author of Black's Law Dictionary and other
books,
made the point directly in his book, Law of Judicial Precedents (1912):
"A
decision is not authority as to any questions of law which were not
raised
or presented to the court, and were not considered and decided by it,
even
though they were logically present in the case and might have been
argued,
and even though such questions, if considered by the court, would have
caused a different judgment to be given."
Thus, the assignment judge was free to apply the Fourteenth Amendment in
this case.
Note also that the Appellate Division did not compare the Pasqua record
with
the Scalchi record - the sound way to determine whether the two cases
involved identical facts. A possible factual difference: The Pasqua
plaintiff's ability to pay, a required premise when incarceration is at
issue, was not considered by the Appellate Division; it was considered
in
Scalchi.
The Appellate Division limited its decision in Pasqua to the issue of
precedent. It never considered the right to counsel. The Supreme Court
should do so.
No reasonable argument can refute the value of an attorney to a
defendant
charged with contempt of court and facing imprisonment, possibly long
imprisonment. Our Supreme Court, in Rodrigues v. Rosenblatt, 58 N.J. 281
(1971), recognized the right to counsel in criminal matters involving
"imprisonment in fact or other consequences of magnitude."
Prison is prison.
It matters little whether a defendant gets there in a criminal matter or
a
civil matter; the very same loss of liberty follows.
The Supreme Court should hear the Pasqua appeal. It raises two important
issues: the right to counsel and the rules of precedent. The plaintiffs
should prevail on both.
The author is a retired Burlington County assignment judge and former
president of the State Bar Association whose column appears monthly
in the
Law Journal.
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