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TABLE OF CONTENTS

Table of Authorities...................................... iii

Table of Contents to Exhibits............................... v

Reply to counter-statement of facts......................... 1

Argument

Point I: DEFENDANTS HAVE PRESENTED NO ARGUMENT SUFFICIENT TO DENY THE APPLICATION FOR A PRELIMINARY INJUNCTION COMPELLING DEFENDANT CLASS TO IMMEDIATELY BEGIN COMPLYING WITH THE UNITED STATES CONSTITUTION 4

A. The decision of the Appellate Division in Scalchi v. Scalchi that the Sixth Amendment does not require the appointment of counsel is irrelevant to the Fourteenth Amendment challenge raised here........................................ 4

B. Defendants' argument that the complaint should be dismissed as indigent litigants cannot be incarcerated absent a finding of an ability to pay must also fail........................ 6

C. The Determination of the Third Circuit that plaintiffs have standing should persuade this Court that plaintiffs have established sufficient "constitutional injury" to warrant the entrance of the requested injunction................... 12

D. Defendants' failure to address the mandate of Rule 5:3-4 must be viewed by the Court as a concession mandating the granting of the requested injunction............................... 14

Point II: DEFENDANTS HAVE PRESENTED NO ARGUMENT SUFFICIENT TO DENY THE APPLICATION TO CERTIFY THE CLASSES PURSUANT TO RULE 23(a) AND 23(b)(2) 15

A. As to the defendant class.......................... 15

B. As to the plaintiff class.......................... 16

C. As to the classes generally........................ 17

Conclusion................................................. 18

Table of Authorities

New Jersey Case law

In the Matter of the Civil Commitment of D.L.,

351 N.J. Super. 77 (App.Div.), cert granted 174 N.J. 185 (2002)................................................

Scalchi v. Scalchi,

347 N.J.Super. 493 (App.Div. 2002)............. 4, 5, 6

Saltzman v. Saltzman,

290 N.J.Super. 117 (App.Div. 1996)................... 8

Pierce v. Pierce,

122 N.J.Super. 359 (App.Div. 1973)................... 8

Federbush v. Federbush,

5 N.J.Super. 107, (App.Div.1949)..................... 8

Biddle v. Biddle,

150 N.J.Super. 185 (Ch.Div. 1977).................... 8

Department of Health v. Roselle,

34 N.J. 331 (1961)................................... 8

Wei v. Wei,

248 N.J.Super. 572, 574 (App.Div.1991)............... 8

Essex County Welfare Bd. v. Perkins,

133 N.J.Super. 189, (App.Div.) cert.denied, 68 N.J. 161 (1975)............................................... 8

Rules Governing the Courts of the State of New Jersey

23(a) .............................................. 13

23(b)(2)............................................ 13

4:52-2 .............................................. 4

5:3-4............................................... 14

Federal Case law

Anthony et al v. Council et al,

316 F.3d 412 (3d. Cir. 2003).................... 11, 12

Lake v. Speziale,

580 F.Supp. 1318 (D.Conn.1984)...................... 16

Lassiter v. Department of Social Services,

452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) passim

Lujan v. Defenders of Wildlife,

504 U.S. 555, 560‑61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).............................................. 11

Mastin v. Fellerhoff,

526 F.Supp. 969 (S.D.Ohio 1981)...................... 7

United States v. W. T. Grant Co.,

345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).... 11

United States v. Trans‑Missouri Freight Assn.,

166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897).... 11

United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)................................ 11

United States v. Trans‑Missouri Freight Assn., 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897)....................... 11

Foreign State Case Law

Bishop v. Bishop,

90 N.C.App. 499, 369 S.E.2d 106 (1988)................. 7

Brower v. Brower,

70 N.C.App. 131, 318 S.E.2d 542 (1984)................. 8

Cox v. Cox,

10 N.C.App. 476, 179 S.E.2d 194 (1971)................. 8

Frank v. Glanville,

45 N.C.App. 313, 262 S.E.2d 677 (1980)................. 8

Hodges v. Hodges,

64 N.C.App. 550, 307 S.E.2d 575 (1983)................. 8

Jolly v. Wright,

265 S.E.2d 135 (N.C. 1980)........... Chart: Exhibit F, 6

Jones v. Jones,

62 N.C.App. 748, 303 S.E.2d 583 (1983)................. 7

Lee v. Lee,

78 N.C.App. 632, 337 S.E.2d 690 (1988)................. 7

Mauney v. Mauney,

268 N.C. 254, 150 S.E.2d 391 (1966).................... 7

McBride v. McBride,

334 N.C. 124, 431 S.E.2d 14 (1993) Chart: Exhibit F, 6, 7

McMiller v. McMiller,

77 N.C.App. 808, 336 S.E.2d 134 (1985)................. 7

Smoot v. Dingess,

236 S.E.2d 468, 471 (W. Va. 1975)....... Chart: Exhibit F

Sword v. Sword,

249 N.W.2d 88 (Mich. 1976)........ Chart: Exhibit F, 6, 7

Teachey v. Teachey,

46 N.C.App. 332, 264 S.E.2d 786 (1980)................. 8

Unpublished case law (New Jersey) cited pursuant to R. 1:36-3.

Leonard v. Blackburn ................. 1, 9, 10, 13, 14, 15

Scholarly Journals / Law Review Articles / Other Sources

Judges Journal of the American Bar Association,

Judges Journal of the American Bar Association, Rodgers, Hon. Frederick B., JSC, 40 NO. 1 Judges' J. 22, 22‑23 (1989).............................................. 16

Table of Contents to Exhibits

Transcripts of ability to pay hearings, February and March 2003; Wilbur Street (Monmouth), Augustus Petties (Middlesex), Delores Johnson (Middlesex), Nicholas Ianucci (Middlesex), Paul Guenther (Middlesex)............. Exhibit A

Certification for Ocean County Probation Department of Michelle Tierney, Child Support Enforcement Probation Officer ..................... Exhibit B

REPLY TO COUNTER-STATEMENT OF FACTS

In opposition to plaintiffs' application to certify the classes and enter a preliminary injunction, the State alleges that plaintiffs seek certification of a defendant class consisting of "all Superior Court Judges of the State of New Jersey."

This is not the proposed defendant class. The complaint indicates that the class should consist of the named parties "on behalf of all Superior Court Judges of the State of New Jersey who have in the past conducted Ability to Pay Hearings or who will in the future conduct Ability to Pay hearings" (Complaint at page 6 ¶ 15, emphasis added). In January of 2002, this Court denied an application for class certification in Leonard v. Blackburn, a case somewhat similar to this matter. In Leonard, the Court denied class certification. Each of the reasons given for said denial - including the scope of the defendant class - has been addressed and remedied in the matter now before this Court.

Next, defendants allege 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)." 42 U.S.C. § 1983 requires that defendants be named individually and in their official capacity, and that the named parties have taken action in reference to the named plaintiffs. The named judicial defendants who conducted the hearings are therefore mandatory, appropriate parties. The AOC and Chief Justice are properly, separately named as the parties responsible for the creation and implementation of judicial policies.

It is undisputed that monetary damages are not sought and that immunity issues are therefore irrelevant.[1]

Defendants then allege that plaintiffs are seeking the appointment of counsel "at state expenses." Plaintiffs have never and do not demand that counsel be appointed at "state expense." New Jersey has a mandatory pro-bono counsel rule and the Supreme Court is contemplating the implementation of an opt-out fund into which attorneys would contribute so as to provide further legal services to the indigent. Plaintiffs take no position as to the source of the appointed attorneys, arguing only that counsel must be appointed.

Defendants next claim that plaintiffs seek an injunction preventing the future incarceration of child support obligors. This is completely false. To the contrary, plaintiffs have argued that incarceration can be a completely constitutional method of coercing an able but recalcitrant obligor to comply with a child support obligation.

The order to show cause indicates that plaintiffs seek an injunction compelling the defendant class to comply with the mandate of the United States Constitution that all litigants facing potential incarceration be notified of their right to counsel and their right to appointed counsel if they are indigent, the appointment of counsel for indigent litigants facing incarceration, and the expeditious review of all obligors who are currently incarcerated in violation of the Fourteenth Amendment to the United States Constitution.

Yes, this relief is "extraordinary." And the relief should be granted because the United States Constitution is an extraordinary document.

ARGUMENT

Point I

DEFENDANTS HAVE PRESENTED NO ARGUMENT SUFFICIENT TO DENY THE APPLICATION FOR A PRELIMINARY INJUNCTION COMPELLING DEFENDANT CLASS TO IMMEDIATELY BEGIN COMPLYING WITH THE UNITED STATES CONSTITUTION

This application for emergent relief was submitted pursuant to R. 4:52-2, which provides for the application of such relief during the pendency of an action.

Defendants addressed only the first factor (there exists a reasonable probability of eventual success on the merits), apparently conceding that, should this Court find that the Constitution requires the appointment of counsel (and notification of the right to counsel), the remaining two factors (Irreparable injury would result if the injunction is not granted [as the Constitution is being violated] and that a balance of equities supports the entrance of the injunction) have been satisfied.

A. The decision of the Appellate Division in Scalchi v. Scalchi that the Sixth Amendment does not require the appointment of counsel is irrelevant to the Fourteenth Amendment challenge raised here.

Defendants' opposition rests primarily on the decision of this Court being controlled by the opinion of the Appellate Division in Scalchi v. Scalchi, 347 N.J.Super. 493 (App.Div. 2002).

Scalchi was brought by a pro se litigant and the decision correctly held that the Sixth Amendment does not require the appointment of counsel in a civil matter. Scalchi was properly relegated to a footnote in plaintiffs' moving papers as the case has no relevance to the matter before this Court, which is brought on Fourteenth Amendment grounds, not the Sixth Amendment challenge properly rejected in Scalchi.[2] See also Judges Journal of the American Bar Association, ("...the right to court‑appointed counsel at government expense is not grounded in the Sixth Amendment right to effective assistance, but rather in the Fourteenth Amendment's Due Process Clause...") Hon. Frederick B. Rodgers, JSC, 40 NO. 1 Judges' J. 22, 22‑23 (1989). Defendants' statement that "Scalchi raised the same the arguments that defendants do here" is completely insupportable.

As discussed in plaintiffs' original memorandum of law, the New Jersey Appellate Division has only once examined this issue in the Fourteenth Amendment context and the relief granted was in accordance with the relief this Court is asked to grant. See In the Matter of the Civil Commitment of D.L., 351 N.J. Super. 77 (App.Div.), cert granted 174 N.J. 185 (2002).

Defendants attempt to distinguish this matter as D.L. was a commitment rather than a contempt proceeding. However, the explicit text of D.L. addresses liberty interests and the Fourteenth Amendment. Nowhere does that Court even imply that its decision relies on the nature of the proceeding.. To the contrary, the Appellate Division explicitly held that "the label affixed to a case ... is not the dispositive consideration. Rather, we look to the infringement upon the person's due process rights to guide our decision." Id. at 88-91 (emphasis added).

As defendants point out, an on-point ruling of the Appellate Division is binding on this Court. Scalchi discussed the Sixth Amendment and is irrelevant.[3] D.L. and Lassiter discuss the Fourteenth Amendment and their holdings should persuade this Court to grant the requested injunction.

B. Defendants' argument that the complaint should be dismissed as indigent litigants cannot be incarcerated absent a finding of an ability to pay must also fail.

In McBride v. McBride, 334 N.C. 124, 431 S.E.2d 14 (1993) overruling Jolly v. Wright, 265 S.E.2d 135 (N.C. 1980), the Supreme Court of North Carolina was confronted with the argument that no indigent litigant could be incarcerated absent a finding that they had the ability to pay any release amount set. Therefore, a truly indigent litigant was not in danger of incarceration.

This was the reasoning previously adopted by the Supreme Court of North Carolina in Jolly v. Wright, 265 S.E.2d 135 (N.C. 1980), and overturned by the same Court thirteen years later in McBride v. McBride, 334 N.C. 124, 431 S.E.2d 14 (1993). See also, Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493 (1990) overruling Sword v. Sword, 249 N.W.2d 88 (Mich. 1976), and was the reasoning steadfastly maintained by several states when the Federal Courts intervened. See, Walker v. McLain, 768 F.2d 1181 (10th Cir.App. 1985), cert.denied, 474 U.S. 1061, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986) abrogating State ex rel. Dep't of Human Services v. Rael, 97 N.M. 640, 642 P.2d 1099 (1982), Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981) abrogating In re Calhoun, 47 Ohio St.2d 15, 350 N.E.2d 665 (1976) ("That plaintiffs in this case stand to be deprived of their physical liberty is without dispute. The only question is whether the Fourteenth Amendment requires appointment of counsel in civil, as well as criminal proceedings, where the litigants are indigent and may be deprived of their physical liberty. The answer to this question must necessarily be yes and, although we have some reluctance to impose such a burden on the state system, the federal Constitution requires no less.").

Aside from the intervening decision of the United States Supreme Court in Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the McBride Court cited numerous cases from that State's Appellate Division which "indicate[] that the failure of trial courts to make a determination of a contemnor's ability to comply is not altogether infrequent." McBride v. McBride, 334 N.C. at 131, 124, 431 S.E.2d 14 at 19 (1993), citing Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966), Bishop v. Bishop, 90 N.C.App. 499, 369 S.E.2d 106 (1988), Lee v. Lee, 78 N.C.App. 632, 337 S.E.2d 690 (1988), McMiller v. McMiller, 77 N.C.App. 808, 336 S.E.2d 134 (1985), Brower v. Brower, 70 N.C.App. 131, 318 S.E.2d 542 (1984), Hodges v. Hodges, 64 N.C.App. 550, 307 S.E.2d 575 (1983), Jones v. Jones, 62 N.C.App. 748, 303 S.E.2d 583 (1983), Teachey v. Teachey, 46 N.C.App. 332, 264 S.E.2d 786 (1980), Frank v. Glanville, 45 N.C.App. 313, 262 S.E.2d 677 (1980), Cox v. Cox, 10 N.C.App. 476, 179 S.E.2d 194 (1971).

New Jersey has a similar history of cases where the Appellate Division has had to remind the trial Courts of the requirement of contemporaneous findings of an ability to pay prior to ordering the incarceration of an indigent litigant facing incarceration at enforcement hearings. See, e.g., 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), Wei v. Wei, 248 N.J.Super. 572, 574 (App.Div.1991), Essex County Welfare Bd. v. Perkins, 133 N.J.Super. 189, (App.Div.), cert.denied, 68 N.J. 161 (1975).

A substantial body of unpublished case law beginning in 2000 and continuing through last month also supports the argument that the inquiry made into the ability of a litigant to pay a purge amount is often inadequate.[4] See Weinstein v. Weinstein, (App. Div., 3/27/00 [Monmouth ]), Weinstein v. Weinstein, (App. Div., 4/7/00), Bachman v. Cohen, (App.Div. 4/12/00), Williams & Brookins v. Tolbert, (App.Div. 6/7/00 [Mercer ]), Cruz v. Cruz (App. Div. 2001 [Ocean ]), Wade v. Sweeney (App.Div. 2001), Littlejohn v. Davis (App.Div. 2002), Logan v. Logan ([Mercer ]App.Div 2002), In Re Ability to Pay of Augustus Petties (Ch.Div. [Middlesex ], 2/19/03), In Re Ability to Pay of Delores Johnson (Ch.Div. 2/19/03), In Re Ability to Pay of Nicholas Ianucci (Ch.Div. 2/19/03), In Re Ability to Pay of Paul Guenther (Ch.Div. 2/19/03), In Re Ability to Pay of Wilbur Street (Ch.Div. [Monmouth ], 2/19/03). See also, transcripts attached to plaintiffs' original brief in this matter.

Moreover, in Leonard v. Blackburn, the Court reviewed a certification from the Ocean County Probation Department (Exhibit B) that admitted that obligors are still incarcerated in violation of the applicable standard (stating, in a hand-written modification by the affiant, that an ability to pay determination "may" be made prior to incarceration being ordered). The Court also reviewed transcripts from numerous ability to pay hearings and made a specific finding that the correct standard is not being applied, or at least is not being consistently applied. See Exhibit E, 1T 21-14 to 21-17.

The Andrews reasoning that defendants urge on this Court remains defective for the above reasons and should be rejected.

Again, it should be stressed that it is not the actual incarceration of a litigant the triggers the right to appointed counsel, it is the risk that this may occur that triggers the right ("The pre‑eminent generalization that emerges from this Court's precedents on an indigent's right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation." Lassiter 452 U.S. at 25, 101 S.Ct. at 2158) (emphasis added).

Insofar as Andrews conflicts with this holding (by reasoning that litigants can be compelled to attend a hearing where their liberty is at risk but will not be incarcerated if proved to be indigent), it has not been followed by the overwhelming majority of jurisdictions and should not be followed by this Court.

In their brief and certifications, defendants state that there has been a dramatic change in the nature of ability to pay proceedings as a result of this Court's ruling in Leonard v. Blackburn and point out that the transcripts attached to plaintiffs' brief predate that decision. Attached as Exhibit A are more recent transcripts, all of which postdate both the Leonard decision and the dates referenced in defendants' certifications.[5] While some judges in some counties may have improved the level of inquiry being made, many obviously have not, and the appointment of counsel would make this uniform across the state and is mandated by the United States Constitution as interpreted by the Supreme Court in Lassiter and the New Jersey Appellate Division In the Matter of the Civil Commitment of D.L.

Finally, defendants state that the AOC is currently drafting a best practices for statewide implementation on this issue that may address the adequacy of the inquiry being made at hearings and the appointment of counsel. Even if the representations made by the AOC were read as addressing the issue before this Court, it is well settled law that a defendant's voluntarily cessation of unconstitutional conduct does not defeat a civil rights action, as what is done voluntarily can be un-done voluntarily. United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953), United States v. Trans‑Missouri Freight Assn., 166 U.S. 290, 308‑‑310, 17 S.Ct. 540, 546‑‑547, 41 L.Ed. 1007 (1897).

This matter was originally filed in the Federal District Court in May of 2000. It has been pending in one form or another since that time, with the defendants' consistently urging the Courts to avoid the merits. After nearly a third of a decade of litigation, this Court should address the merits and issue the requested injunction.

In Anthony v. Council, 316 F.3d 412 (3d.Cir. 2003), the Third Circuit sua sponte examined plaintiffs' standing and determined that plaintiffs have standing to raise this issue in State Court. The Federal Court did not dismiss the matter pursuant to Rule 12(b)(6) ("Failure to State a Claim") in spite of the State's request that it do so.

The Court first briefly reviewed the factors necessary to establish standing. "First, the plaintiff must have suffered an injury in fact‑‑an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Anthony v. Council, 316 F.3d at 416 (3d.Cir. 2003), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560‑61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). After reviewing the facts and law, the Court determined that plaintiffs meet all three prongs of the standing test.

If, as defendants urge, the current system "affords plaintiffs all the due process to which they are entitled," they would not have suffered a constitutional injury and the Third Circuit would have been bound to dismiss the matter as plaintiffs would have lacked standing.

The Court's sua sponte examination of standing, along with its expressing both "confidence [that ] any constitutional challenge to state court practice would receive proper consideration by the New Jersey courts" and that "[the Third Circuit does ] not intend to minimize the importance of the rights asserted" are clear indications that the current system does not "afford plaintiffs all the due process to which they are entitled."

D. Defendants' failure to address the mandate of Rule 5:3-4 must be viewed by the Court as a concession mandating the granting of the requested injunction.

Defendants do not address - at all - the mandate of R. 5:3‑4[6] that counsel must be appointed in a Family Proceeding "...if the matter may result in the institutional commitment or other consequence of magnitude to any family member..."[7]

The issue was ignored because the text of the Rule is explicit, binding on this Court, and should control the Court's decision. The requested injunction should issue forthwith.

Point II

DEFENDANTS HAVE PRESENTED NO ARGUMENT SUFFICIENT TO DENY THE APPLICATION TO CERTIFY THE CLASSES PURSUANT TO RULE 23(a) AND 23(b)(2)

A. As to the defendant class.

Defendants' error as to the scope of the class underlies its opposition to the certification of the classes. As a result of this Court's ruling in Leonard v. Blackburn, the class of Superior Court judicial defendants in this matter is limited to those judges "who have in the past conducted Ability to Pay Hearings or who will in the future conduct Ability to Pay hearings." Every argument raised in opposition to the certification of the defendant class is predicated on the misreading of what judges constitute the defendant class.

Defendants point out that any judge can be temporarily assigned to the Family Part. This fact supports the necessity of able counsel being appointed as history has shown that even experienced, competent Family Part judges with the best of intentions err and fail to apply correct standard at enforcement hearings, or at least do not apply the correct standard on a consistent basis.

It is absolutely not disputed that "each judge in the state who does hear this type of matter conceivably may have her or his own method of proceeding in these matters." Again, this fact supports the necessity of able counsel being appointed for the same reasons as set forth above.

B. As to the plaintiff class.

Defendants acknowledge that the Court can take judicial notice of the findings in Leonard v. Blackburn as to numerosity, but oppose numerosity as "plaintiffs cannot show that all of those who participated in enforcement hearings are indigent, or, indeed, the exact nature of each litigant's financial status."

Again, this argument involves a misreading of the Complaint. The complaint urges that all litigants, regardless of their financial status, must be notified of their right to counsel and their right, if indigent, to appointed counsel. The distinction as to indigent litigants is that they must have counsel appointed.

Next, defendants argue that each matter is case-specific and fact sensitive, citing an alleged admission by plaintiffs that "the precise underlying facts surrounding each case may differ." This admission was made in Leonard as to the issue of the adequacy of the findings being made at enforcement hearings.[8] It is not made here, as the underlying differing facts do not outweigh the common one: litigants are being compelled to attend hearings wherein they may be deprived of their liberty without being notified as to their right to counsel and their right to appointed counsel if indigent. It is the overall procedure that is challenged here, not (as in Leonard) the substance of each hearing.

The reasons given for the denial of class certification in Leonard simply do not apply in this matter, and defendants have provided no new arguments warranting the denial of class certification, at least on a preliminary basis.

C. As to the classes generally.

Although this is an issue of first impression in New Jersey, many, many other courts have addressed the precise issue of the appointment of counsel for indigent civil litigants facing incarceration at enforcement hearings. The majority of those cases were brought as class actions under 42 U.S.C. § 1983, and there is not a single case (even in those few, older cases where the ultimate relief was denied) where the Court denied class certification. The facts, parties, and law before this Court are identical to those in the prior cases addressing the issue. See, e.g., Lake v. Speziale, 580 F.Supp. 1318 (D.Conn. 1984), McKinstry v. Genesee County Circuit Judges, 669 F.Supp. 801 (E.D.Mich.1987), Johnson v. Zurz, 596 F.Supp. 39 (N.D.Ohio 1984).

The classes should be certified by the Court.

CONCLUSION

Defendants argue that the relief being requested of this Court is extraordinary and discuss the public policy implications of the issuance of the requested injunction. In the event defendants believe that public policy considerations would warrant it, they are certainly able to argue on March 28 for a stay of the court's ruling pending review. However, for the above reasons, the classes should be certified, and the requested injunction should issue forthwith.

In the event the Court finds no material fact questions exist necessitating further proceedings, the declarative relief sought should also be granted.

Respectfully submitted this 26 day of March, 2003

____________________________

David Perry Davis, Esq.

Proof of Service

DAVID PERRY DAVIS, of full age, hereby certifies as follows:

1. I am the attorney for the putative plaintiff class in this matter.

2. On this date, I caused a copy of the enclosed documents and this Proof of Service to be served upon the following:

1.	Diane Lamb, Esq., DAG Dept of the Attorney General Hughes Justice Complex 25 West Market Street / PO Box 112 Trenton NJ 08625 By FedEx / Next day delivery

3. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements are willfully false, I am subject to punishment.

___________________________

David Perry Davis, Esq.

DATED: March 25, 2003

[1] When this matter was originally filed in the Federal District Court, the State raised judicial immunity defenses.

[2] Pro se litigants have also filed eccentric challenges to the child support enforcement system based on the Thirteenth Amendment (Involuntary Servitude). They are of no more relevance than Scalchi's rejection of a Sixth Amendment challenge.

[3] Although not apparent on a first reading of the decision, in retrospect this may explain the Third Circuit's determination in Anthony v. Council that Scalchi v. Scalchi "does not demonstrate that the New Jersey courts are resistant to adjudicating indigent parents'