NOT FOR PUBLICATION
WITHOUT
APPROVAL OF THE
COMMITTEE ON PUBLICATIONS
|
Anne Pasqua, Ray Tolbert, and Michael Anthony,
individually and on behalf of all persons similarly situated,
Plaintiffs
vs.
Poritz Council, et al Hon. Gerald J. Council and Hon. F. Lee Forrester, in their official
capacity as Judges of the Superior Court, and 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,
Hon. Deborah Poritz, in her official
capacity as Chief Justice of the Supreme Court of New Jersey,
Hon. Richard J. Williams, in his official
capacity as Administrative Director of the Courts of the State of New
Jersey,,
Defendants
|
SUPERIOR COURT OF NEW
JERSEY
LAW DIVISION‑MERCER COUNTY
DOCKET NO. MER‑L‑406‑03
Civil
Action
OPINION
|
─────────────────
Decided: April 24, 2003
David Perry Davis, for the
plaintiffs (David Perry Davis,
Esquire, on the brief).
Peter C. Harvey, Acting
Attorney General of the State of
New Jersey, for the
plaintiffs (Diane M. Lamb, Deputy
Attorney General of the State
of New Jersey, on the brief).
FEINBERG, A.J.S.C.
1
BACKGROUND
In June of 2000,
plaintiffs, three child support obligors,
filed an action in the
United States District Court for the
District of New Jersey.
The complaint named two Superior Court
Judges assigned to the
Family Part; the Chief Justice,
individually and in her
capacity as Chief Justice of the Supreme
Court of New Jersey; and,
Richard Williams, individually and in
his official capacity as
Administrative Director of the Courts, as
defendants. In September
of 2000 the Attorney General, acting on
behalf of all named
defendants, filed a motion to dismiss on the
grounds of judicial
immunity. Plaintiffs opposed the motion to
dismiss and filed a cross‑motion
seeking a preliminary injunction
and class certification.
In October 2000, defendants filed a reply
and asserted the doctrine
of abstention pursuant to Younger v.
Harris, 401 U.S. 37
(1971). On November 16, 2000 oral argument was
held before the Honorable
Garret E. Brown, U.S.D.J.
In March 2001, Judge Brown
granted the application for
abstention. A Notice of
Appeal was filed with the United States
Court of Appeals for the
Third Circuit in June of 2001. On January
2
17, 2003, the Third
Circuit affirmed the abstention ruling,
reasoning that, as a
matter of first impression, the child support
enforcement system is
"a comprehensive and fluid system designed
to address the ever‑present
and ever‑changing realities of child
support orders [and] must
be viewed as a whole, rather than as
individual, discrete
hearings" and that plaintiffs had not
demonstrated that the
State was resistant to adjudicating the
constitutional issue. To
the limited extent that the Third Circuit
addressed the merits, the
Court held that it was "confident that
any constitutional
challenge to state court practice would receive
proper consideration by
the New Jersey courts." Anthony v.
Council, 316 F.3d 412 (3d
Cir. 2003).
On February 14, 2003, the
plaintiffs re‑filed the complaint
along with an order to
show cause seeking preliminary restraints.
On February 24, 2003, this
court denied emergent relief,
established a briefing
schedule and listed the matter for oral
argument on March 28, 2003
at 9:00 a.m. On March 21, 2003,
defendants filed and
served a notice of motion to dismiss the
complaint. Based on issues
presented during the March 28, 2003
oral argument, the court
permitted the parties to submit
supplemental briefs.
It is undisputed that all
three named plaintiffs are under a
current order to pay child
support and that each of them, at
3
different times, has been
incarcerated for the failure to pay
outstanding child support
arrearages. Each of them, according to
counsel, were indigent at
the time of the enforcement hearings and
were entitled to the
appointment of counsel.
ANALYSIS
I.
CHILD SUPPORT ENFORCEMENT
PROCESS
Rule 5:7‑5 sets
forth the procedural mechanism for the
enforcement of child
support obligations and provides:
If a person fails to make
payments or provide health insurance coverage as directed by an order or
judgment, the Probation Division responsible for monitoring and enforcing
compliance shall notify such person by mail that such failure may result in the
institution of contempt proceedings. Upon accumulation of a support arrearage equal
to or in excess of the amount of support payable for 14 days or failure to
provide health insurance coverage as ordered, the Probation Division shall file
a verified statement setting forth the facts establishing disobedience of the
order or judgment. The court in the county in which the person resides ... may
then, in its discretion, institute contempt proceedings in accordance with Rule
1:10‑2, and an
aggrieved party or the
Probation Division on that party's behalf may apply to the court for relief in
accordance with Rule 1:10‑3.[R. 5:7‑5(a).]
As noted in the rule, the
enforcement and collection
process commences upon the
failure of the child support obligor
4
to pay the court ordered
support or provide health insurance
coverage. It is the responsibility
of the Probation Division
responsible for monitoring
and enforcing the obligation, rather
than the office with which
the judgment or order is filed, to
provide notice to the
child support obligor that the continued
failure to provide the required
support may result in the
institution of a
proceeding in accordance with R. 1:10‑2 or an
application in accordance
with R. 1:10‑3.
While oftentimes, when
served with notice by the Probation
Division, a child support
obligor will satisfy the full
outstanding arrearages or
reach an amicable alternative
resolution, many obligors,
despite notice, do not contact the
Probation Division. In
those cases, the Probation Division will
initiate the enforcement
proceedings outlined in R. 5:7‑5 by
filing a motion to enforce
litigant's rights in accordance with
R. 1:10‑3.
In New Jersey, Child
Support Hearing Officers (Hearing
Officer) conduct child
support enforcement hearings. These
officers undergo extensive
training offered through the
Administrative Office of
the Courts (AOC). Based on statewide
statistical information
obtained for the period from July 2001
through June 2002, one‑half
of the matters scheduled before
hearing officers included
initial establishment cases,
5
applications for
modifications or periodic reviews. The
remaining cases were
comprised of enforcement matters initiated
by the Probation
Department. As noted in Leonard v. Blackburn,
MER‑L‑3761‑01,
slip. op. at 7 (Law Div. Jan. 22, 2002)
approximately 50,000
enforcement hearings are scheduled each
year before hearing
officers.
Notices to appear for
child support enforcement hearings
are forwarded by the
Probation Department by regular and
certified mail. Statewide,
the number of obligors who fail to
appear is significant. For
example, in the Mercer Vicinage, the
non‑appearance rate
is approximately sixty‑five percent. If the
hearing officer is
satisfied that notice has been made upon the
defaulting obligor, the
hearing officer will recommend the
issuance of a bench
warrant.1 Absent proof of service, the
matter will be rescheduled
or some other action taken.
Hearing officers assigned
to conduct enforcement hearings
may recommend the
following: (1) a lump sum payment by the
obligor on the day of the
hearing or at some future date
specified in the court
order; (2) the entry of an order that if
the obligor misses two
payments a bench warrant shall issue; (3)
the incarceration of the
defendant until payment is made; or (4)
1 The policy of the AOC is
that personal service is required
before the issuance of a
bench warrant.
6
that the obligor maintain
contact with, and cooperate with the
Probation Department
concerning the collection and enforcement
of child support arrears.2
In those cases in which
the Probation Department recommends
a specific payment plan,
and not incarceration, an obligor may
elect to appeal the
decision of the Hearing Officer. Based on
procedures and policies
established by the AOC, the obligor is
entitled to an immediate
hearing before a Judge in the Superior
Court‑Chancery Division,
Family Part. If the hearing officer has
recommended incarceration
until a specific payment is made, the
obligor is entitled to an
automatic appeal. Based on
statistical information
from the Mercer Vicinage, historically,
the number of appeals is less
than five percent. More
significantly,
recommendations to incarcerate an obligor for the
failure to pay support
represent less than one‑percent of the
recommendations. According
to the Chief of Child Support
Services in the Mercer
Vicinage, the number of recommendations
to incarcerate obligors
has dropped dramatically over the past
several years.
2 If approved by the
court, normally a judge assigned to the
Superior Court, Chancery
Division will sign the appropriate
child support orders or
warrants. In some counties only daytime
warrants are issued. In
others, the obligor may be arrested at
any time of the day.
7
While a bench warrant will
be ordered when an obligor does
not appear for a scheduled
child support enforcement hearing, a
warrant may also be issued
when an obligor appears at an
enforcement hearing, is
given a specific time period to pay
outstanding arrearages, is
advised that the failure to comply
will result in the
issuance of a warrant and the obligor,
nonetheless, does not pay
the required amount due. In these
situations, the Probation
Division will issue a warrant upon the
default of the obligor.
Consistent with the
decision in Leonard, an obligor who is
arrested for the failure
to pay child support must be brought
before the court for an ability
to pay hearing within 72 hours
of the arrest. At the
ability to pay hearing, the Probation
Division must establish
that the obligor violated the court's
child support order. The
obligor then has the burden of showing
an inability to pay. If
the obligor fails to meet the burden,
the court may find him in
willful violation of the order and,
determine the appropriate
means by which to ensure compliance
with the order.
For the most part, child
support enforcement hearings are
initiated when the
Probation Division files a notice of motion
to enforce litigant's
rights. Rule 1:10‑3, provides that
"notwithstanding that
an act or omission may also constitute
8
contempt of court, a
litigant in any action may seek relief by
application in the
action." Significantly, absent a finding
that the debtor has assets
that have been secreted or otherwise
placed beyond the reach of
execution, the rule prohibits the
commitment to enforce a
money judgment; however permits the
commitment to compel the
payment of child support. In pertinent
part, the rule provides:
If an order entered on
such an application
provides for commitment,
it shall specify
the terms of release
provided, however, that
no order for commitment
shall be entered to
enforce a judgment or
order exclusively for
the payment of money,
except for orders and
judgments based on a claim
for equitable
relief including orders
and judgments of the
Family Part and except if
a judgment
creditor demonstrates to
the court that the
judgment debtor has assets
that have been
secreted or otherwise
placed beyond the
reach of execution. In
family actions, the
court may also grant
additional remedies
provided by R. 5:3‑7.
An application by a
litigant may be tried with
a proceeding
under R. 1:10‑2(a)
only with the consent of
all parties and subject to
the provisions of
R. 1:10‑2(c).
[R. 1:10‑3.]
The comments to the rule
recognize that the purpose of the
1994 amendment was to
"make clear that enforcement by
incarceration was never
intended to create a so‑called debtor's
prison, except as to
Family Part orders, general equity orders,
and those instances in
which the debtor is defeating the normal
9
discovery, and execution
process, it is that process and not
incarceration of the
debtor that is to provide the appropriate
collection remedy."
R. 1:10‑3, Comment 5.
The significant
distinction between proceedings pursuant to
R. 1:10‑3 and
proceedings pursuant to R. 1:10‑1 and R. 1:10‑2 is
that, an order of
confinement may not be for a specific
duration; instead the
confinement must be terminable upon the
party's compliance with
the order. Essex County Welfare Bd. v.
Perkins, 133 N.J. Super.
189 (App. Div. 1975), cert. denied, 68
N.J. 161 (1975); Pierce v.
Pierce, 122 N.J. Super. 359 (App.
Div. 1973)(reversing an order
entered pursuant to R. 1:10‑3
which imposed a thirty‑day
jail sentence upon a defendant for
failure to comply with a
support order in a matrimonial cause,
the court holding that the
term must be related to the
continuance of the
noncompliance). Furthermore, a monetary
sanction intended to be
entirely punitive rather than coercive
may not be imposed absent
proceedings under R. 1:10‑2. See
Ridely v. Dennison, 298
N.J. Super. 373, 381 (App. Div. 1997).
As early as 1949 the
courts in New Jersey recognized the
continuous obligation of
parents to support their minor
children. Federbush v.
Federbush, 5 N.J. Super. 107 (App. Div.
1949). Recognizing the
obligation to pay on‑going child support,
the Federbush court
acknowledged that only obligors who had the
10
ability to pay the
outstanding support, but who had willfully
refused to pay risked
incarceration. In Federbush, the court
noted:
The judgment of contempt
must have been
founded upon the court's
conclusion from the
evidence that in
conjunction with
defendant's disobedience
of the order he
clearly possessed the
financial means, but
not the willingness, to
meet the order...
The contempt was civil in
nature and
defendant's instant
ability to respond to
the order was inherent in
the adjudication
of contempt, otherwise the
judgment must
amount to imprisonment for
debt.
Incarceration in civil
contempt is part of
equitable process to
enforce judgment, but
it is available only
against a resistive
suitor capable of meeting
the judgment. His
ability to satisfy the
judgment is his means
of freedom.
[Id. at 112.]
In New Jersey, as in all
states, a child support obligor
cannot be incarcerated for
the failure to pay a child support
obligation until the court
determines that the obligor has the
ability to pay on the
basis of evidence adduced at a hearing at
which he has had the
opportunity to testify. Pierce, supra, 122
N.J. Super. 359;
Federbush, supra, 5 N.J. Super. 107; Saltzman
v. Saltzman, 290 N.J.
Super. 117 (App. Div. 1996). If the court
determines, based on the
evidence adduced at the hearing,
including defendant's
testimony, that a defendant has the
ability to pay but is
unwilling to do so, incarceration may be
11
ordered as a coercive
means to require payment, but not as a
punitive measure.
At issue is not whether
the obligor is entitled to an
ability to pay hearing.
Rather, the issue before this court is
whether an indigent child
support obligor who faces
incarceration is entitled
to the appointment of counsel.
II.
THE RIGHT TO COUNSEL
A. SIXTH AMENDMENT
ANALYSIS
The Sixth Amendment to the
United States Constitution
provides that "in all
criminal prosecutions the accused shall
enjoy the right to have
the assistance of Counsel for his
defense." U.S. Const.
Amend VI. The text of the amendment
guarantees criminal
defendants the right to the assistance of
counsel "in all
criminal prosecutions." It was not until 1963
that the Supreme Court
first applied the Sixth Amendment right
to counsel to the states,
through the Fourteenth Amendment.
Overruling its 1942
holding in Betts v. Brady, 316 U.S. 455
(1942)3 the Court in
Gideon v. Wainwright, 372 U.S. 335 (1963),
held that the right to
counsel for a criminal defendant is
3 In Betts, when
confronted with the quandary of whether due
process mandated the
appointment of counsel for every indigent
criminal defendant, the
Court refused to hold that the due
process clause of the
Fourteenth Amendment incorporated the
Sixth Amendment right to
counsel. Betts, 316 U.S. 455.
12
"fundamental,"
and that "any person haled into court, who is too
poor to hire a lawyer,
cannot be assured a fair trial unless
counsel is provided for
him." Id. at 344. While the Gideon Court
clearly addressed the
issue of due process and the Sixth
Amendment, it did not
ultimately determine what constituted a
"criminal
prosecution" for entailing Sixth Amendment coverage.
In 1972 the court answered
that question with its holding
in Argersinger v. Hamlin,
407 U.S. 25 (1972). Charged in
Florida with carrying a
concealed weapon, a crime punishable by
up to six months
imprisonment, and/or $1,000 fine, plaintiff was
tried, convicted, and
sentenced to ninety days in jail. Upon
these facts the Court held
that a defendant threatened with
imprisonment, regardless
of length of potential sentence, is
entitled to the assistance
of counsel and further, that a
defendant is entitled to
the appointment of counsel when he
cannot afford his own.
Ibid. The Court specifically stated that,
under the Sixth Amendment,
"no person may be imprisoned for any
offense, whether
classified as petty, misdemeanor or felony,
unless he was represented
by counsel at trial." Id. at 37. The
court made clear that the
right to counsel in a criminal case is
not dependent on the
character of the charge, but rather on the
potential loss of liberty.
13
The Court clarified its
position in Scott v. Illinois, 440
U.S. 367 (1979), by
holding that the Sixth Amendment's right to
counsel extended only to
criminal defendants that were faced
with "actual
imprisonment" and that its boundaries did not
include defendants that
were threatened with fines or "the mere
threat of
imprisonment." In Scott, the Court refused to extend
the Sixth Amendment's
right to counsel to include prosecutions
that were criminal, but
did not result in any loss of liberty.
Ibid. Importantly,
Scott leaves undisturbed
the underlying
premise of Argesinger
that, when the state
uses its vast resources to
deprive an
accused of his liberty,
the due process of
the fourteenth amendment
requires that the
accused be represented by
counsel in order
to ensure a fair trial.
Since Gideon, the
focus in determining the
right to appointed
counsel remains on the
deprivation of
liberty ‑ an element
inextricably linked to
the concept of fundamental
fairness.
[Robert S. Catz & Nancy
Lee Firak, The Right
to Appointed Counsel in
Quasi‑Criminal
Cases: Towards an
Effective Assistance of
Counsel Standard, 19 Harv.
C.R.‑C.L. L. Rev.
397, 406 (1984).]
One year prior to the
Argersinger decision, the New Jersey
Supreme Court in Rodriquez
v. Rosenblatt, 58 N.J. 281 (1971),
referring to the Sixth
Amendment right to counsel held:
When the very charge and
the attendant
circumstances indicate
that the indigent
defendant will be in need
of the assistance
of assigned counsel, he
should of course
14
have it. Indeed, whenever
the particular
nature of the charge is
such that
imprisonment in fact or
other consequence of
magnitude is actually
threatened or is a
likelihood on conviction,
the indigent
defendant should have
counsel assigned to
him unless he chooses to
proceed pro se with
his plea of guilty or his
defense at trial.
In those rare instances
where there is a
plea or trial proceeds
without any tender or
assignment of counsel and
actual
imprisonment or other
consequence of
magnitude looms appropriate
to the municipal
judge despite the
preindications to the
contrary, the defendant
should be given the
option of starting anew
with suitable
safeguards including,
where necessary, trial
before a substituted
municipal judge.
[
Id. at 295.]
B. THE SCALCHI v. SCALCHI
DECISION
In Scalchi v. Scalchi, 347
N.J.Super. 493 (App. Div. 2002),
the defendant, Frank
Scalchi, appealed an order entered pursuant
to an enforcement hearing
resulting from arrears of child and
spousal support. At the
hearing before the trial court, defendant
asserted that he was
indigent and was entitled to the appointment
of counsel. Ibid. The
trial court denied the request. Ibid. On
appeal, the defendant,
appearing pro se, raised the identical
issue. Ibid. Affirming the
decision of the trial court, the
Appellate Division held
that the court is not required to appoint
counsel for an indigent
child support obligor at a support
enforcement hearing. Ibid.
15
In a two and one‑half‑page
opinion, the Appellate Division
reasoned that the enforcement
hearings are "civil" in nature and
not "criminal."
Citing Essex County Welfare Bd., supra, 133 N.J.
Super. at 195, the court
recognized previous observations made
regarding child support
enforcement hearings and possible
incarceration, stating:
There is no doubt that
there is a vast
difference between a
[criminal] contempt
proceeding...and a [civil]
proceeding to
enforce litigants rights
...The latter is
essentially a civil
proceeding to coerce the
defendant into compliance
with the court's
order for the benefit of
the private
litigant. In such
proceeding the judge,
before ordering any
sanction, must determine
that the defendant has the
ability to comply
with the order which he
has violated, and
incarceration may be
ordered only if made
contingent upon
defendant's continuing
failure to comply with the
order. Release
must be available
immediately upon
defendant's compliance.
Defendant may not
be sentenced to a specific
jail time.
[
Scalchi, supra, 347 N.J.
Super. at 495‑96.]
Relying on the distinction
between civil contempt and
criminal contempt, the
Appellate Division went on to state that:
In an ideal world with
unlimited resources,
it would be preferable and
appropriate to
assign an attorney who
desired such
representation and could
not afford to pay
for it. The Sixth
Amendment to the United
States Constitution,
however, does not
provide for counsel in a
non‑criminal
setting. The current law
in New Jersey has
not extended the Rodriquez
case to require
that counsel be assigned
to an indigent in a
16
support enforcement
proceeding. The fact
alone that other states
have imposed an
obligation to appoint
counsel in certain
civil contempt proceedings
for nonsupport is
an insufficient basis for
this court to do
so, absent direction from
our Supreme Court.
See, e.g., McBride v.
McBride, 334 N.C. 124
(1993) (citing cases from
Alaska,
Connecticut, Indiana,
Iowa, Maryland,
Michigan, Minnesota,
Nebraska, Texas and
Washington); Young v.
Whitworth, 522 F. Supp.
759 (S.D.Ohio 1981).
[Scalchi, supra, 347 N.J.
Super. at 496‑97.]
Rejecting the notion that
a child support obligor in a
proceeding to enforce
payment is entitled to the appointment of
counsel, the court,
nonetheless in a footnote recognized that in
civil proceedings related
to Title 9 Abuse and Neglect actions,
N.J.S.A. 9:6‑3
(statutorily permitting the respondent parent or
guardian to apply for an
attorney through the Department of
Public Advocate and
requiring the court to appoint a law
guardian for the child)
and termination of parental rights
actions, N.J.S.A. 30:4C‑11
to 24, "that justice demands nothing
less in light of the
magnitude of the consequences involved"
(citing Rodriquez, supra,
58 N.J. at 281 ‑ 95), and therefore
the appointment of counsel
is required.
C. ENTITLEMENT TO COUNSEL BASED
ON THE FOURTEENTH AMENDMENT
The Sixth Amendment is not
the only source of a right to
counsel. The due process
clause of the Fourteenth Amendment
17
affords a second
constitutional basis for the right to counsel.
Therefore, the right to
appointed counsel for an indigent child
support obligor must also
be evaluated under the Fourteenth
Amendment due process
clause. The Fourteenth Amendment to the
United States Constitution
provides that "no person shall be
deprived of life, liberty
or property without due process of law
and equal protection of
the laws." U.S. Const. Amend. XIV.
As noted heretofore, the
defendants filed a motion to
dismiss the complaint for
failure to state a claim relying, for
the most part, on three
arguments. First, defendants assert that
the precise issue before
this court has already been fully
considered and answered
and that the Appellate Division firmly
rejected the identical
claim of entitlement to the appointment
of counsel. Furthermore,
defendants argue that implicit in the
analysis of the State's
obligation under the Sixth Amendment,
the court in Scalchi
analyzed and considered the issue of the
appointment of counsel
based solely on the Fourteenth Amendment.
Second, defendants submit
that regardless of whether this
court finds that Scalchi
is controlling, plaintiffs have failed
to establish any due
process violation under the Fourteenth
Amendment. To support this
position, the defendants argue that
every child support
obligor is entitled to an ability to pay
hearing in order to ascertain
whether a child support obligor is
18
in fact indigent and that
if the court answers that question in
the affirmative, then no
incarceration can or will be ordered.
This process, according to
the defendants, accords with
fundamental fairness and does
not violate due process.
Finally, defendants
represent that 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.
In response, plaintiffs
submit that, while the court in
Scalchi correctly held
that the Sixth Amendment does not require
the appointment of counsel
in a civil contempt proceeding, it did
not evaluate an obligor's
entitlement to the appointment of
counsel based on the
Fourteenth Amendment. Relying on the
Fourteenth Amendment,
plaintiffs argue that an indigent child
support obligor facing
incarceration is entitled to the
appointment of counsel.
For the reasons set forth
herein, the court rejects the
arguments offered by the
defendants and finds that the
Fourteenth Amendment due
process clause requires the appointment
of counsel for an indigent
child support obligor who faces
incarceration. While the
practical implications of such a
19
decision may be cumbersome
and burdensome, the constitution
demands no less.
The Deputy Attorney
General at the March 28, 2003 oral
argument, noted that the
appellate court in Scalchi makes
reference to other
jurisdictions that, pursuant to the
Fourteenth Amendment's due
process requirements, have recognized
a right to counsel in
civil contempt proceedings: McBride v.
McBride, 334 N.C. 124
(1993) decided by the Supreme Court of
North Carolina, and Young
v. Whitworth, 522 F. Supp. 759 (D.C.
Ohio 1981). Both of these
cases reach the conclusion that the
Fourteenth Amendment
requires appointment of counsel to an
indigent defendant who is
faced with contempt charges for
nonsupport.4 The Attorney
General asserts that reference to
these cases demonstrates
that the court considered the
4 In McBride, the
defendant was held in civil contempt for
failing to pay child
support, and he appealed alleging that his
right to due process was
violated because he was not appointed
counsel for his contempt
hearing. The Court of Appeals affirmed
and remanded, and on
appeal, the Supreme Court of North
Carolina, overruling prior
North Carolina precedent, held that
the principles of due
process embodied in the Fourteenth
Amendment requires the
appointment of counsel to indigents in
civil contempt proceedings
for nonsupport. McBride, supra, 334
N.C. at 132. In Young, an
indigent father filed an application
for a writ of habeas
corpus alleging that his due process rights
were violated when he was
incarcerated for contempt of court in
a nonsupport hearing, but
was not advised of his right to
appointed counsel in such
a case. On respondent's motion to
dismiss, the District
Court held that the Fourteenth Amendment
required that when an
indigent father is faced with imprisonment
on contempt charges for
nonsupport counsel must be provided to
him. Young, supra, 522 F.
Supp. at 766.
20
implications of the Fourteenth
Amendment in reaching its
decision not to appoint
counsel.
The Attorney General's
assertion, while plausible, is not
persuasive. The court's
citations to McBride and Young were
announced by the
introductory signals "See, e.g." and followed
the court's statement that
"[t]he fact alone that other states
have imposed an obligation
to appoint counsel in certain civil
contempt proceedings for
nonsupport is an insufficient basis for
this court to do so,
absent direction from our Supreme Court."
Scalchi, supra, 347 N.J.
Super. at 496‑97. Clearly, the court was
citing these cases as
representative of jurisdictions that have
imposed the obligation to
appoint counsel in civil contempt
proceedings for
nonsupport, and does not support the notion that
the court addressed the
Fourteenth Amendment as part of its
analysis.5
This court rejects the
notion asserted by the Deputy Attorney
General that the mere
citation to other jurisdictions' holdings
means that the court
considered, but rejected, the Due Process
5 The signal "See,
e.g." is used where the "cited authority
states the
proposition...[and] other authorities also state the
proposition, but citation
to them would not be helpful or is not
necessary." THE
BLUEBOOK: A UNIFORM SYSTEM OF CITATION R. 1.2,
at 22 (Columbia Law Review
Ass'n et al. eds., 17th ed. 2000).
The citation, pursuant to
Bluebook Rule 1.2 commands that the
ensuing citations state
the preceding proposition. Here, the
preceding proposition
discussed the conclusion the courts made,
not the analysis they used
in doing so.
21
Clause of the Fourteenth
Amendment as providing a right to counsel
in civil contempt
proceedings for nonsupport. Significantly, the
court never mentioned or
included the Fourteenth Amendment nor
made any reference to the
United States Supreme Court's
examination of the issue
in Lassiter v. Dep't of Soc. Serv., 452
U.S. 18 (1981).
Furthermore, the court cites the Sixth Amendment
as the basis for providing
counsel and then cites the McBride and
Young cases. Implicit in
that sequence is the notion that the
court limited its analysis
to the Sixth Amendment. (emphasis
added.)
As the history of the
right to counsel in criminal cases
reveals, the Supreme Court
is most solicitous of an indigent
defendant confronted with
the threat of incarceration. Indeed,
it is the deprivation of
physical liberty, and not the
characterization of the
alleged offense as a felony or
misdemeanor, that entitles
a defendant to appointed counsel. It
is but a short step from
this to the proposition that the
characterization of the
proceedings as "civil" should not
frustrate the
constitutional mandate of appointed counsel where
an indigent litigant is
threatened with confinement.
The Court took this step
in Lassiter, by erecting a
presumption of a right to
appointed counsel "where the litigant
may lose his physical
liberty if he loses the litigation." Id.
22
at 25. Where physical
liberty is not at stake, the Court held,
no such presumption
exists. The potential loss of "physical
liberty" therefore becomes
the critical factor determining the
right to counsel; Lassiter
made clear that the labels "civil"
and "criminal"
are no longer important.
In Lassiter, the United
States Supreme Court held that the
right to appointed counsel
arises "only where the litigant may
lose his physical liberty
if he loses the litigation." Ibid. In
Lassiter the Supreme Court
stated:
The Court's precedent
speaks with one voice
about what
"fundamental fairness" has meant
when the Court has
considered the right to
appoint counsel, and we
thus draw from them
the presumption that the
indigent litigant
has a right to counsel
only when, if he
loses, he may be deprived
of his physical
liberty. It is against
this presumption
that all the other
elements in the due
process decision must be
measured.
[
Id. at 26‑27.]
In Lassiter, the state of
North Carolina had terminated the
petitioner's parental
rights due to her lack of concern for her
child's care and welfare.
Petitioner argued that, because she
was indigent, the
Fourteenth Amendment required the state to
appoint counsel to
represent her at the termination hearing.
The Court found that there
is a presumption "that an indigent
litigant has a right to
appointed counsel only when, if he
23
loses, he may be deprived
of his physical liberty." Id. at 18.
Because the petitioner was
not threatened with the loss of her
physical liberty, the
Court found that the factors set forth in
Mathews v. Eldridge, 424
U.S. 319 (1976), should be considered
and then weighed against
the presumption to determine whether
the Fourteenth Amendment
requires the state to appoint counsel
in parental termination
hearings. Lassiter, supra, 452 U.S. at
27.
Mathews v. Eldridge sets
out three factors which must be
considered in determining
what due process requires in a
particular case: (1) the
private interests at stake; (2) the
government's interest; (3)
and the risk that the procedures used
will lead to an erroneous
decision. Mathews, supra, 424 U.S. at
335. The Lassiter court
found that these factors balanced in
favor of a right to
appointed counsel, but did not overcome the
presumption that a
litigant is not entitled to appointed counsel
unless threatened with the
loss of physical liberty.
Thus, in a case like the
present one, where a person is
being held in contempt for
failure to pay child support, it
appears that we must first
determine whether a defendant's
physical liberty is at
stake. If not, then according to
Lassiter, a court must
analyze the three factors set forth in
24
Mathews and then balance
these with the presumption against
appointing counsel.
The Lassiter approach has
been strictly adhered to in the
federal courts in other
jurisdictions. In Mastin v. Fellerhoff,
526 F. Supp. 969 (D.C.
Ohio), the court addressed the threshold
issue of jurisdiction and then
proceeded to address the merits.
On June 29, 1981,
plaintiff, James Mastin, was found in contempt
of an order of the
Hamilton County Court of Common Pleas,
Division of Domestic
Relations for the non‑payment of child
support. Id. at 970.
Pursuant to that order, plaintiff was
incarcerated for three
days. Ibid. At the conclusion of the
June 29, 1981 hearing,
plaintiff was told to return to the
Domestic Relations Court
on August 17, 1981. Ibid. Plaintiff was
advised that he would be
incarcerated for ten more days if he
could not make support
payments at that time. Ibid. At the
hearing, plaintiff was not
represented by counsel. Ibid.
Plaintiff advised the
court that he was unable to afford a
lawyer and requested the
appointment of counsel. Ibid. The
request was refused on the
grounds that, because the proceeding
was not
"criminal," plaintiff had no right to appointed counsel.
Ibid.
Unable to afford counsel
for the hearing scheduled for
August 17, 1981, plaintiff
filed a complaint and application for
25
emergent relief with the
United States District Court. Ibid. The
application for emergent
relief sought a preliminary injunction
against the Domestic
Relations Court prohibiting it from
incarcerating plaintiff or
any other indigent person found in
contempt of court for
failure to pay support without first
advising them of their
right to have counsel appointed. Ibid.
Defendants agreed to stay
proceedings until the case was
decided on the merits.
Inasmuch as there was no genuine issue of
fact, the case was decided
on cross‑motions for summary
judgment. The sole issue
before the court was whether the
practice of the Domestic
Relations Court of holding contempt
proceedings, and of
incarcerating class members found in
contempt without providing
counsel violated their constitutional
rights guaranteed under
the Fourteenth Amendment to the United
States Constitution.
Before the District Court,
defendant first argued that the
court should sustain from
interfering with the proceeding of the
state court under the
principles articulated in Younger, that in
the absence of
extraordinary circumstances, federal courts may
not intervene in state
court proceedings if the plaintiff has
the opportunity to raise
his federal claim in the state
proceeding. Younger, 401
U.S. at 41. According to the
defendants, the Ohio
Supreme Court never ruled on the question
26
whether an indigent
defendant in a civil contempt hearing was
entitled to appointed
counsel under the Fourteenth Amendment,
and therefore the District
Court should abstain under Younger so
as to give the state
courts an opportunity to decide the merits
of plaintiffs'
constitutional claim.
Plaintiffs argued that the
Ohio Supreme Court decision in
In re Calhoun, 47 Ohio St.
2d 15 (1976), was dispositive and
plaintiffs therefore had
no remedy in state court.6 Ruling on
defendant's habeas corpus
petition, the Ohio Supreme Court in
Calhoun held that the
Sixth Amendment right to counsel as
articulated by the United
States Supreme Court in Argesinger,
did not apply to a civil
contempt hearing for non‑payment of
child support. Calhoun,
supra, 47 Ohio St. 2d at 17.
As to the abstention
doctrine the court held:
The abstention doctrine,
however, is not an
invitation to state courts
to avoid the
mandate of the United States
Constitution,
and it only applies if the
plaintiffs have
an opportunity to fairly
press their
constitutional claims in
the state court.
Lack of opportunity to
fairly assert a
constitutional claim in
state court
therefore would direct
this Court to decide
6 In a separate order,
plaintiff's motion to certify this case as
a class action was
granted. The class consists of: all
individuals who have been
or will be summoned to appear in the
Hamilton County Court of
Common Pleas, Division of Domestic
Relations to answer
charges that they are in contempt of court
by failing to pay child
support, and who face incarceration by
reason thereof, and who
are unable to afford counsel to
represent them in such
proceedings.
27
the issue rather than
abstain. The question
is whether plaintiffs have
an opportunity to
pursue this claim in the
sate court or
whether the federal court
is the only viable
forum.
[
Mastin, supra, 526 F.
Supp. at 971
(citations omitted).]
The District Court
proceeded to decide the case on the
merits and rejected the
abstention argument raised by the
defendants. The court
recognized that Calhoun expressly relied
on the Sixth Amendment
alone, but held that "implicit in that
holding is a rejection of
any Fourteenth Amendment right to
counsel under the same
circumstances." Id. at 971. As a result
the District Court held
that "it would be unjust to require
plaintiffs in this case to
pursue a futile appeal through the
state courts when the
issue has already been ruled upon by the
highest court in Ohio.
Where plaintiffs have no adequate means
of redress in the state
courts, 'extraordinary circumstances'
envisioned by Younger
exist and the federal courts need not
abstain. Id. at 971,
quoting Parker v. Turner, 626 F.2d 1, 10
(6th Cir. 1980).
Significantly, the United
States District Court rejected
the defendant's argument
that the right to counsel at contempt
hearings should be
determined on a case‑by‑case basis by stating
"it is clear to this
Court that a state may not deprive a person
of his physical liberty
unless that person is represented by
28
counsel, no matter what
the nature of the proceeding." Mastin,
supra, 526 F. Supp. at
973. The court added:
To characterize a
proceeding as civil rather
than criminal is a
distinction without a
difference if the end
result is loss of
physical liberty.
Appointment of counsel is
an absolute requirement of
due process
whenever the proceeding
may result in
imprisonment of that
defendant. We believe
in the balancing factors
set forth in
Eldridge apply only in cases
where the right
is not absolute, and the
court must
determine whether there is
a right to
counsel under a particular
set of facts...
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.
[Ibid.]
Defendants in the case at
bar, assert that the language in
Mastin, "we recognize
that Calhoun expressly relied on the Sixth
Amendment only, but
implicit in that holding is a rejection of
any Fourteenth Amendment
right to counsel under the same
circumstances," is
binding and that the holding by the appellate
division in Scalchi by
necessity incorporated a Fourteenth
Amendment analysis. Mastin,
supra, 536 F. Supp. at 971. There
are several reasons to
reject the position advanced by the
29
defendants. First, a
District Court opinion from Ohio is not
binding on this court.
Second, the decision in Mastin, conflicts
with the Third Circuit's decision
to permit the State court to
examine the constitutional
issue and to therefore abstain from
exercising jurisdiction.
Third, the decision that implicit in
the holding in Calhoun was
a rejection of the Fourteenth
Amendment right to counsel
under the same circumstances, was
made by the District Court
in the course of denying Ohio's
abstention application
pursuant to Younger, supra, 401 U.S. 37,
and was the justification
asserted to reach the merits, thus
abrogating the holding of
the Ohio Supreme Court in Calhoun,
that the appointment of
counsel was not required. Fourth, the
District Court in Mastin
was confronted with a situation where
the unambiguous
Constitutional mandate of Lassiter was not being
applied and, rather than
entering an order that would have
resulted in more delay, it
chose to adhere to its duty and
address the Constitutional
issue placed before it rather than
abstain.
Defendant's reliance on
Mastin for the proposition that the
court in Scalchi
implicitly decided the Fourteenth Amendment is
misplaced. Mastin provides
no authority for its conclusion that
the Ohio Supreme Court
implicitly addressed the Fourteenth
30
Amendment when it issued a
decision based on the Sixth
Amendment.
Notably absent from
Scalchi, however, is any reference by
the court to the
Fourteenth Amendment or the phrase "due
process."7 Had the
Scalchi Court intended to address Lassiter,
it would have done so
explicitly. Moreover, the Appellate
Division in Scalchi could
not have considered Lassiter nor the
due process arguments
raised, inasmuch as consideration of these
issues would have mandated
a different result than the one
reached in Scalchi.
During oral argument, the
defendants asserted that the
court in Scalchi
"didn't come right out and say this is based on
the Sixth Amendment,"
implying that the court considered all of
the legal basis on which
the appointment of counsel could be
based. To the contrary,
the court was quite clear as to the
authority it was
considering in reaching its decision. The
court explicitly relied on
the Sixth Amendment and held:
The Sixth Amendment to the
United States
Constitution, however,
does not provide for
counsel in a non‑criminal
setting . . . The
fact alone that other
states8 have imposed an
7 The Appellate Division
in Scalchi also did not address the New
Jersey Supreme Court case
law requiring that a defendant in a
capias ad satisfaciendum
proceeding receive the same "procedural
rights and protections as
if he were arrested on a criminal
charge" nor did it
address R. 5:3‑4(a).
8 Notably, the Appellate
Division referred only to "other
31
obligation to appoint
counsel in certain
civil contempt proceedings
for nonsupport is
an insufficient basis for
this court to do
so, absent direction from
our Supreme Court.
[
Scalchi, supra, 347 N.J.
Super. at 496‑97
(citations omitted).]
The Court in Scalchi based
its decision on the Sixth Amendment
only. It was not asked,
and did not consider, the Fourteenth
Amendment constitutional
issues before this Court.
In Anthony, the Third Circuit
examined plaintiff's standing
and held that sufficient
injury was alleged under the Fourteenth
Amendment to prosecute
this matter in Federal Court. Anthony,
316 F.3d at 416. In
upholding the District Court's abstention
decision, the Court noted
Scalchi's holding that "[t]he current
law in New Jersey [does
not] require that counsel be assigned to
an indigent in a support
enforcement proceeding," yet held that
"but this statement
does not demonstrate that the New Jersey
courts are resistant to
adjudicating indigent parents'
constitutional
rights." Anthony, supra, 316 F.3d at 423. The
court also noted:
Plaintiffs have offered no
reason why their
claims could not be fully
heard by New
Jersey courts. Moreover,
defendants contend
plaintiffs would encounter
no difficulty
adjudicating their claims
in the New Jersey
courts. Defendants'
contentions are
undisputed by plaintiffs
and we find no
states", not the
Federal Constitutional challenge raised here.
32
reason to doubt them.
Plaintiffs have the
opportunity to raise their
claims in any
child support hearing and
to appeal adverse
decisions through the
state appellate system
and eventually to the
United States Supreme
Court.
[
Id. at 422.]
Most importantly, the
Third Circuit recognized the
difference between the
Sixth Amendment right to counsel and the
separate and independent
right to counsel afforded under the due
process clause. This
distinction is apparent as the court
stated:
The New Jersey Supreme
Court has suggested
indigent defendants should
be afforded
counsel "whenever the
particular nature of
the charge is such that
imprisonment in fact
or other consequence of
magnitude is
actually threatened or is
a likelihood of
conviction."
Rodriquez, supra, 58 N.J. 281.
Moreover, after the New
Jersey Supreme Court
decision, the United
States Supreme Court
expressed a similar
sentiment when it stated
there is a
"presumption that an indigent
litigant has a right to
appointed counsel .
. . when, if he loses, he
may be deprived of
his physical
liberty."
[
Id. at 423 (citations
omitted).]
Interestingly, the Third
Circuit acknowledged that a few federal
courts "held that
abstention was inappropriate in the particular
cases due to
'extraordinary circumstances,' which denied
plaintiffs the ability to press
their claims adequately in state
court. Id. at 423, citing
Mastin, supra, 526 F. Supp. 969;
Johnson v. Zurz, 596 F.
Supp. 39 (D.C. Ohio 1984).
33
If Scalchi is read as
having addressed the Fourteenth
Amendment, it is in direct
conflict with Lassiter and would
indeed have demonstrated
that "New Jersey courts are resistant
to adjudicating indigent
parents' constitutional rights."
Anthony, supra, 316 F.3d
at 423. The Third Circuit found
standing to pursue this
issue under the Fourteenth Amendment and
stated that New Jersey is
not "resistant to adjudicating
indigent parents'
constitutional rights". Ibid. Therefore
Scalchi cannot be read as
having addressed the Fourteenth
Amendment.
If Mastin is viewed as
binding, or even persuasive to this
court, the case would be
followed for the proposition
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.
[
Mastin, supra, 526 F.
Supp. at 973.]
Additionally, many Federal
district and circuit courts
addressing this issue have
repeated the same holding; that due
process does require the
appointment of counsel in civil
contempt proceedings where
incarceration is a possible
34
consequence. The circuits
of the United States Court of Appeals
that have addressed this
question have determined that due
process requires an
automatic appointment of counsel for an
indigent facing
incarceration in a civil contempt proceeding.
See Wilson v. State of
N.H., 18 F.3d 40 (1st Cir. 1994); United
States v. Bobart Travel
Agency, 699 F.2d 618 (2d Cir. 1983); In
re Kilgo, 484 F.2d 1215
(4th Cir. 1973); Ridgway v. Baker, 720
F.2d 1409 (5th Cir. 1983);
Sevier v. Turner, 742 F.2d 262 (6th
Cir. 1984); Matter of
Grand Jury Subpoena, 739 F.2d 1354 (8th
Cir. 1984); United States
v. Anderson, 553 F.2d 1154 (8th Cir.
1977); Henkel v. Bradshaw,
483 F.2d 1386 (9th Cir. 1973); Walker
v. McClain, 768 F.2d 1181
(10th Cir. 1985).
Civil contempt hearings
are examples of proceedings which
are civil in form but
which can nevertheless result in
incarceration. The Supreme
Court in Lassiter was unequivocal in
stating that an indigent
civil litigant has a right to appointed
counsel if he may be
incarcerated as a result of an adverse
outcome. It is the
defendant's interest in personal freedom and
not the Sixth Amendment
right to counsel in criminal cases that
trigger the right to
appointed counsel in theses situations.
Thus, Lassiter provides the
standard by which the right to
counsel in civil contempt
cases is to be determined.
35
Following the Supreme
Court's decision in Lassiter, the
North Carolina Supreme
Court revisited the issue of appointing
counsel in these types of cases.9
In McBride, the court held that
principles of due process
embodied in the
Fourteenth Amendment
require that, absent
the appointment of
counsel, indigent civil
contemnors may not be
incarcerated for
failure to pay child
support arrearages...At
the outset of a civil
contempt proceeding
for nonsupport, the trial
court should
assess the likelihood that
the defendant may
be incarcerated. If the
court determines
that the defendant may be
incarcerated as a
result of the proceeding,
the trial court
should, in the interest of
judicial economy,
inquire into the
defendant's desire to be
represented by counsel and
into his ability
to pay for legal
representation. If such a
defendant wishes
representation but is
unable due to his
indigence to pay for such
representation, the trial
court must appoint
counsel to represent him.
[
McBride, supra, 334 N.C.
at 131 ‑ 32.]
Significantly, in McBride
the court recognized the
constitutional infirmity
in making a distinction between
criminal and civil
proceedings by noting:
A defendant who is found
in civil contempt
and incarcerated for
nonsupport does not
"hold the keys to the
jail" if he cannot pay
9 In Jolly v. Wright, 300
N.C. 83 (1980), the North Carolina
Supreme Court considered
the question of whether an indigent
defendant facing
incarceration in a civil contempt proceeding
brought to compel
compliance with a child support order had a
statutory or
constitutional right to be represented by appointed
counsel. In Jolly, the
court rejected the claim that the
obligor had either a Sixth
Amendment or Due Process Clause of
the Fourteenth Amendment
right to appointed counsel.
36
the child support
arrearage which will
procure his release. Under
such
circumstances, the
deprivation of liberty
that occurs is tremendous
and may not be
diminished by the fact
that a civil contempt
order contains a purge
clause providing for
the contemnor's release
upon payment of
arrearages. While it is
true that a
defendant in a civil
contempt action should
not be fined or
incarcerated for failing to
comply with a court order
without a
determination by the trial
court that the
defendant is capable of
complying, the facts
of the present case
illustrate that trial
courts do not always make
such a
determination before
ordering the
incarceration of a civil contemnor...
When a
truly indigent defendant
is jailed pursuant
to a civil contempt order
which calls upon
him to do that which he
cannot do ‑ to pay
child support arrearage
which he is unable
the pay ‑ the
deprivation of his physical
liberty is no less than
that of a criminal
defendant who is
incarcerated upon
conviction of a criminal
offense.
[
Id. at 130 ‑ 31
(citations omitted).]
Importantly, the court
held that "[i]n light of the Supreme
Court's opinion in
Lassiter, we now hold that principles of due
process embodied in the
Fourteenth Amendment require that,
absent the appointment of
counsel, indigent civil contemnors may
not be incarcerated for
failure to pay child support
arrearages." Id. at
131. As noted heretofore, the Court in
Lassiter emphasized that,
in determining whether due process
requires the appointment
of counsel for an indigent litigant in
a particular proceeding, a
court must first focus on the
37
potential curtailment of
the indigent's personal liberty rather
than on the "civil or
criminal label placed on the proceeding.
Where due process is
concerned it is the defendant's interest in
personal freedom that
triggers the right to appointed counsel."
Id. at 127, citing
Lassiter, supra, 452 U.S. at 25.
Similarly, many states
have reached the identical
conclusion as the federal
courts in holding that due process
requires the appointment
of counsel for an indigent facing
incarceration in civil
contempt proceedings. See Alabama, Ex
Parte Parcus, 615 So.2d 78
(Ala. 1993); Alaska, Otton v.
Zaborac, 525 P.2d 537
(Alaska 1974); California, County of Santa
Clara v. Santa Clara
County Superior Court, 5 Cal.Rptr.2d 7
(Cal. Ct. App 1992);
Colorado, Padilla v. Padilla, 645 P.2d 1327
(Colo. Ct. App. 1982);
Connecticut, Emerick v. Emerick, 613 A.2d
1351 (Conn. App. Ct.
1992); Delaware, Black v. Div. of Child
Support Enforcement, 686
A.2d 164 (Del. 1996); Indiana, In Re
Marriage of Stariha, 509
N.E.2d 1117 (Ind. Ct. App. 1987);
Iowa, McNabb v. Osmundson,
315 N.W.2d 9 (Iowa 1982); Kansas,
Johnson v. Johnson, 721
P.2d 290 (Kan. Ct. App. 1986); Maryland,
Rutherford v. Rutherford,
464 A.2d 228 (Md. 1983); Michigan,
Mead v. Batchlor, 460
N.W.2d 493 (Mich. 1990); Minnesota, Cox v.
Slama, 355 N.W.2d 401
(Minn. 1984); Missouri, Hunt v. Moreland,
697 S.W.2d 326 (Mo. Ct.
App. 1985); Nebraska, Carroll v. Moore,
38
423 N.W.2d 757 (Neb.
1988); New York, 516 N.Y.S.2d 928 (N.Y.
Sup. 1987); North
Carolina, McBride, supra, 334 N.C. 124; Ohio,
Renshaw v. Renshaw, 2000
WL 1528635 (Oh. Ct. App. 2000);
Tennessee, Bradford v.
Bradford, 1986 WL 2874 (Tenn. Ct. App.
1986); Vermont, Choiniere
v. Brooks, 660 A.2d 289 (Vt. 1995);
Washington, Tetro v.
Tetro, 544 P.2d 17 (Wash. 1975); West
Virginia, Smoot v.
Dingess, 236 S.E.2d 468 (W.Va. 1977); and
Wisconsin, Brotzman v.
Brotzman, 283 N.W.2d 600 (Wis. Ct. App.
1979).
Additionally, various
jurisdictions that have not mandated
appointment of counsel as
a result of litigation, require
appointment by statute or
some other means. For example, in
Florida, the office of the
Public Defender provides
representation at Ability
to Pay hearings pursuant to
Fla.R.Crim.P. 3.840(a). In
Kentucky, appointment of counsel is
mandated by statute, and
in Massachusetts it is provided as a
matter of right. The
Virginia Supreme Court has issued a
memorandum instructing
trial courts that they have the
discretion to appoint
counsel for indigent contemnors facing
incarceration, and as a
result certain counties appoint counsel
regularly.
Only a handful of
jurisdictions currently hold that there
is no right to counsel for
indigent contemnors in nonsupport
39
hearings. See Louisianna,
State v. Walker, 386 So.2d 908 (La.
1980); Maine, Meyer v.
Meyer, 414 A.2d 236 (Me. 1980); New
Hampshire, Duval v. Duval,
322 A.2d 1 (N.H. 1974); New Mexico,
State ex. rel. Dept. of
Human Services v. Rael, 642 P.2d 1099
(N.M. 1982).
Interestingly, of the three jurisdictions listed,
only one has revisited the
issue of providing a right to counsel
after the Lassiter
decision.
Additionally, several of
the states that hold that due
process does not require
automatic appointment of counsel,
declare that indigent
civil contemnors, who are unable to pay
the amount of support
owed, can not be incarcerated for their
failure to pay, and as
such are not being denied any liberty
protected by the due
process provisions. Kurt F. Hausler, The
right to appointment of
counsel for the indigent civil contemnor
facing incarceration for
failure to pay child support, McBride
v. McBride, 16 Campbell L.
Rev. 127 (1994).
Three months after Scalchi
was decided, the Appellate
Division decided In the
Matter of the Civil Commitment of D.L.,
351 N.J. Super. 77 (App.
Div. 2002), which explicitly addressed
both the Fourteenth
Amendment and the Lassiter decision. The
only defense offered by
the State to explain the holding of
I/M/O D.L. was that civil
psychiatric commitments under the
Sexually Violent Predators
Act differ from contempt proceedings.
40
However, 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. Directly
citing Lassiter and the
Fourteenth Amendment, the Court in I/M/O
D.L. held that the
appointment of counsel is Constitutionally
mandated whenever a
defendant's liberty interests are at stake.
The courts in the State of
New Jersey have a long‑standing
reputation of protecting
the constitutional rights of its
citizens. Adhering to that
tradition, the Fourteenth Amendment
of the United States
Constitution requires that no indigent
child support obligor be
incarcerated without being afforded the
opportunity of assigned
counsel.
D. WRIT OF CAPIAS AD
SATISFACIENDUM.
In Marshall v. Matthei,
327 N.J.Super. 512 (App. Div.
2000), the Appellate
Division was asked to review a writ of
capias ad satisfaciendum
issued as a result of the defendant's
refusal to comply with a
judgment entered against him by his
former attorney, in spite
of evidence that he had the ability to
comply with the order. In
incarcerating the defendant, the
trial court found, based
on defendant's admissions, that he had
the ability to pay at
least $20,000 toward his arrears but was
openly and belligerently
refusing to do so. Id. at 519
41
A writ of capias ad
satisfaciendum is nearly identical to a
coercive incarceration
under R. 1:10‑3. In fact, the only
distinguishing
characteristic is that the writ involves debts
based on contracts (which
potentially could be discharged in
bankruptcy) whereas R.
1:10‑3 is employed in Family Part matters
and under the Court's
general equitable powers to enforce
compliance with its
orders. N.J.S.A. 2A:17‑78.
In discussing a coercive
incarceration in connection with a
writ of capias ad
satisfaciendum, the Appellate Division noted
that it could
"discern no reason why the same standards as have
developed to govern civil
contempt and proceedings in relief of
litigants' rights should
not apply, as appropriate,10 to capias
ad satisfaciendum
commitments." Id. at 526. In discussing these
rights, the Marshall court
cites to Perlmutter v. DeRowe, 58
N.J. 5, 13‑14 (1971)
(discussing the "function and place of
10 In Marshall, the
Appellate Division holds that review hearings
must be held no less
frequently than every 18 months, "the
maximum term that may be
imposed for criminal contempt under
N.J.S.A. 2C:29‑9a
and 2C:43‑6a(4)." In Leonard, this Court held
that Due Process requires
incarceration reviews every two weeks
under R. 1:10‑3.
These different reviews do not represent a
conflict, as a debt for
which one is imprisoned under a writ of
capias ad satisfaciendum
is subject to discharge in bankruptcy;
thus, unlike a child
support contemnor, an incarcerated litigant
always has "the key
to the prison" in his possession as he can
always file for bankruptcy
and be released from confinement.
Marshall, supra, 327 N.J.
Super. at 528, citing Perlmutter v.
DeRowe, 58 N.J. 5, 14
(1971). A child support debtor does not
have this option and the
more frequent reviews are thus
justified.
42
capias ad
satisfaciendum") and Fidelis Factors Corp. v. Du Lane
Hatchery, Ltd., 47 N.J.
Super. 132, 139‑40 (App. Div. 1957).
In Perlmutter, the Supreme
Court of New Jersey held that
"civil arrest under a
Ca. re. [capias ad satisfaciendum] is
substantially analogous to
arrest under a criminal complaint and
a defendant should have
all the same procedural rights and
protections as if he were
arrested on a criminal charge for the
same fraud upon which the
civil action and the Ca. re. are
based." Id. at 17,
citing In re Harris, 446 P.2d 148 (Ca. 1968);
Cf. Desmond v. Hachey, 315
F. Supp. 328 (D.Me.1970). This
holding is in line with
the determination of several courts
that, when considering
whether the appointment of counsel is
constitutionally mandated,
a Court should lookat the effect on a
defendant's liberty
interests, not the label attached to the
proceedings. See, e.g.,
Argersinger, supra, 407 U.S. at 32
(stating it is the result,
not the nature of the particular
offense, that requires
appointment of counsel); I/M/O D.L., 351
N.J. Super. 77; Walker v.
McLain, 768 F.2d 1181, 1183 (10th
Cir. 1985) (stating that
"from the perspective of the person
incarcerated, the jail is
just as bleak no matter which label
[civil or criminal
contempt] is used.")
When viewed in conjunction
with the holding of the United
States Supreme Court in
Lassiter, and that of the New Jersey
43
Appellate Division in
I/M/O D.L. this Court is satisfied that
the Appellate Division's
application of the safeguards of R.
1:10‑3 to capias ad
satisfaciendum proceedings also mandate the
inverse, or that (as far
as the right to counsel is concerned),
"a defendant should
have all the same procedural rights and
protections as if he were
arrested on a criminal charge for the
same contempt upon which
the civil action and the R. 1:10‑3
incarceration are
based."
As noted herein, there is
already case law from the New
Jersey Supreme Court
mandating the appointment of counsel in
civil matters where
incarceration under a writ of capias ad
satisfaciendum is
involved. This Court is satisfied the court
should apply the same
reasoning in the context of child support
obligors facing
incarceration at enforcement hearings.
E. APPOINTMENT OF COUNSEL
UNDER R. 5:3‑4
Plaintiffs argue that R.
5:3‑4 supports their position that
an indigent child support
obligor facing incarceration is
entitled to the
appointment of counsel. The defendants assert
that R. 5:3‑4 is
inapplicable because there is no constitutional
provision or law that
permits the appointment of counsel in
civil matters of this
nature. In light of the court's decision
in this matter, as set
forth above, resolution of this issue is
not necessary. However,
based on the plain language of the
44
Rule, this court finds that
an indigent child support obligor
who faces institutional
commitment or another consequence of
similar magnitude is
entitled to the appointment of counsel.
While the defendants may
assert that a period of incarceration
pending the payment of
child support does not equate to
institutional commitment,
i.e., for a criminal offense, without
doubt a period of
incarceration for any period of time is a
consequence of magnitude.
III.
IMPLEMENTATION
As part of its research,
this court conducted an exhaustive
review of all of the state
and federal courts that have
addressed the appointment
of counsel for indigent child support
obligors subject to
incarceration for nonpayment. The results
outlined in this opinion
are self‑explanatory. Significantly,
all of these states have
developed procedures to ensure the
timely appointment of
counsel.
While this court also
holds that indigent child support
obligors who face
incarceration are entitled to the appointment
of counsel, many
logistical and practical questions remain
unanswered. One of these
is what standard should apply to
determine whether an
obligor is indigent. This question is
easily answered inasmuch
as there are already standards
45
established by the Office
of the Public Defender to determine
whether an individual
qualifies for the appointment of counsel.
See N.J.S.A. 2A:158A‑14
and N.J.S.A. 2A:158A‑15. The 2003 Income
Eligibility Guidelines are
based on the Poverty Index developed
and periodically updated
by the United States Department of
Health and Human Services
published in the Federal Register.
See, 68 Fed. Reg. 26, page
6456‑58. These guidelines are based
on annual gross income
based on a household size of one to
eight.
Although the standards
employed by the Office of the Public
Defender are appropriate
to apply to child support obligors who
apply for the appointment
of counsel, the Office of the Public
Defender has no statutory
obligation to provide representation
in a civil contempt
proceeding to determine the ability to pay.
See Madden v. Delran, 126
N.J. 591 (1992) (holding that while
municipal court indigent
defendants are statutorily entitled to
the appointment of
counsel, the failure of the Legislature to
fund its statutory imposed
obligation properly resulted in a
finding by the trial court
that the obligation was therefore
unenforceable). See also
In re Spann Contempt, 183 N.J. Super.
62 (App. Div. 1982);
Norton v. State, 167 N.J. Super. 212 (App.
Div. 1979).
46
Absent representation
through the services of the Office of
the Public Defender, the
court has the inherent power to require
private attorneys to serve
and protect the vital interests of
indigent litigants, where
circumstances demand it. While this
authority exists, this
court appreciates the practical
implications involved in
the selection and appointment of
counsel to provide
representation at a hearing held within 72
hours after the arrest of
the obligor. See Leonard, supra, MERL‑
3761‑01 (holding
that the ability to pay hearing must be held
within 72 hours after the arrest
of the obligor).
Given the strict time
requirements set forth above, and the
logistical problems
related to the appointment of counsel from
the private legal
community, it may be appropriate to utilize
the services of attorneys
who are employed by the Office of the
County Counsel or to
secure the services of private counsel on a
regular basis to provide
these services. In many Vicinages, like
Mercer, private counsel
has been hired part‑time to provide
services to indigent
defendants charged with domestic violence
contempt orders that are
cognizable before the Family Part.
Regardless of the method
employed to provide services, it
is incumbent that
procedures be established to determine the
eligibility for services
and that a system be developed to
provide for the
appointment of counsel in a timely fashion. From
47
a best practices
perspective, a standardized eligibility form
and set of procedures
should be developed to ensure that
applicants statewide are
evaluated by the same guidelines. The
protocol developed should
incorporate the current operating
guidelines employed by the
Office of the Public Defender in
determining the
eligibility for Public Defender services.
The more difficult issue,
of course, will be the actual
appointment of counsel.
While the pro bono list maintained by
each Vicinage is
available, the utilization of this list may be
problematic due to the
quick turnaround time between the time of
an arrest and the ability
to pay hearing. As a result, some
counties may choose to
utilize the services of the Office of
County Counsel while
others may elect to secure, by contract,
the services of private
attorneys to represent those entitled to
the appointment of
counsel.
Importantly, an indigent
child support obligor is only
entitled to the appointment
of counsel if the obligor may be
incarcerated. Hopefully,
this decision will encourage Probation
Departments across the
State to develop mediation methods to
resolve child support
obligations and to attempt to negotiate
settlements in order to secure
the payment of outstanding
arrears and to eliminate
the possibility of incarceration,
thereby not requiring the
appointment of counsel. Furthermore,
48
judges may over time
develop alternative ways to secure child
support payments without
the need for incarceration.
At the outset of a civil
contempt proceeding for
nonsupport, the trial
court should assess the likelihood that
the defendant may be
incarcerated. If the court determines that
the defendant may be
incarcerated as a result of the proceeding,
the trial court should, in
the interest of judicial economy,
inquire into the
defendant's desire to be represented by counsel
and into his ability to
pay for legal representation. If such a
defendant wishes
representation, but is unable to secure
representation due to his
indigence, the trial court must
appoint counsel to
represent him.
This court understands,
all too well, the practical
implications of a decision
that requires the appointment of
counsel within 72 hours.
In fact, this problem is exacerbated
when, in most vicinages,
an ability to pay hearing is held
within 24 hours.
Recognizing the time
constraints noted herein, this court
has considered the
development of an alternative process
designed to preserve and
protect the due process rights of an
indigent obligor facing
incarceration while at the same time
minimizing the practical
difficulties related to the appointment
of counsel. The
alternative approach, in many respects, would
49
resemble the current
system, inasmuch the appointment of counsel
would not be provided at
the initial ability to pay hearing.
Instead, the ability to
pay hearing would proceed and any
application for the
appointment of counsel would be denied
without prejudice pending
the outcome of the hearing. In the
event that the court made
a finding that the obligor had the
ability to pay and second,
that the obligor faced a period of
incarceration pending the
payment of those funds, then the court
would be required to stay
the execution of the period of
incarceration pending an
expedited appeal before the Appellate
Division and appoint
counsel for purposes of the appeal.
In order to provide
meaningful appellate review, counsel
for the child support
obligor would be permitted to supplement
the record on appeal by
providing written documentation. In the
event that counsel desired
to provide testimonial evidence to
supplement the record,
then the appellate court would have the
authority to remand the
matter to the trial court for purposes
of expanding the record.11
11 In lieu of an appeal to
the Superior Court, Appellate
Division, it may be
appropriate for the Court to consider the
adoption of a procedure
requiring the trial court to
automatically schedule a
motion for reconsideration to permit
appointed counsel the
opportunity to appear on behalf of the
obligor and to supplement
the record. Pending the motion for
reconsideration, the trial
court would be directed to stay the
imposition of
incarceration and schedule the motion for
consideration within
thirty days.
50
If this approach were
adopted, it would be incumbent for
the court to establish an
expedited appeal process, i.e., within
30 days, to review these
matters. While the rights of the
obligor must be protected,
it is also important that the issue
of child support be
resolved expeditiously so as to protect the
rights of children who are
entitled to support from their
parents. Additionally, in
order to minimize the paperwork and
technical rules normally
part of the appellate process, this
court recommends that the
trial court be required to transmit
the paperwork directly to
the appellate court without any
separate filing
requirements on the part of the obligor.
It is anticipated that
this approach may result in a
decreased number of
ability to pay findings and therefore fewer
appeals. While the
majority of the Family Part judges in this
State apply the
appropriate standards when conducting ability to
pay hearings, a review of
recent transcripts in some counties
disclose that, at times,
some do not. And, while an appellate
process is always
available to an obligor who is dissatisfied,
many lack the resources to
pursue an appeal. This alternative
approach, if adopted, may
improve the administration of justice.
This alternative approach
is not without problems. First,
many times an obligor is
in jail due to a failure to appear at a
child support enforcement
hearing. Therefore, a stay of the
51
execution of the period of
incarceration, will release the
obligor into the community
without any assurance that they will
appear at a later time. In
order to address this potential
problem, the child support
obligor must be advised in open court
of their obligation to:
(1) provide a current address; (2)
notify the court of any
change of address; (3) cooperate with
assigned counsel and
provide all documentation or information
that may be requested by
counsel; and (4) appear, as required,
for all future court
appearances regarding the pending matter.
The aforementioned
obligations should be set forth in a
standardized written
document to be signed by the obligor with
copies provided to the
court, the obligor and to appointed
counsel.
In the event that the
obligor failed to meet any of the
requirements imposed as a
condition of the stay, then the court
would have the authority
to enter a self‑executing order
vacating the stay.
IV.
CONCLUSION
For the reasons set forth
herein, the motion to dismiss the
complaint filed by the
defendants is denied and judgment is
entered in favor of the
plaintiffs.12 The application for counsel
fees is reserved pending
the filing of supplemental briefs to
address the award of
counsel fees in this action.13
application for class
certification is denied.
13 The documentation
submitted by counsel for the plaintiffs
shall include a
certification of services.
12 For the reasons set
forth on the record on March 28, 2003, the
52
