SUMMARY
OF REPLY ARGUMENT
For the most part, appellee's brief simply
restates the District Court's reasoning without addressing the issues raised by
appellant. Two straightforward claims
of error are presented in this appeal.
The first question is whether a threatened proceeding is the legal
equivalent to an actual, pending proceeding.
The United States Supreme Court has answered this question in the
negative and made clear that no further consideration of Younger
abstention should have been undertaken by the District Court. In its simplest terms, when seeking to
determine whether there is a pending proceeding, a federal Court could ask
"when is the next scheduled date for a state court proceeding as to this
plaintiff?" When, as here, the
answer to that question is "never", there is no pending proceeding
and a Younger analysis should end.
Second, this Court is asked to address the
purely legal question of whether the District Court erred in failing to certify
the classes and issue the injunction sought below. Especially in view of the clear constitutional mandate handed
down by the Supreme Court in reference to whether indigent litigants are
entitled to representation at hearings wherein they face a loss of liberty, the
answer is yes.
This Court should reverse the District Court's
decision to abstain and remand for the immediate entry of the requested
injunction.
ARGUMENT
Point I
CONSIDERATION OF ABSTENTION PURSUANT TO YOUNGER
V. HARRIS ENDS WHEN NO PENDING PROCEEDING IS IMPLICATED.
In Younger v. Harris, 401 U.S.
37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and its progeny, the
Supreme Court held that federal courts should abstain from enjoining pending
state court proceedings. In their
brief, appellees urge this Court to accept the District court's extension of
this doctrine to include threatened proceedings as opposed to pending
proceedings. This exact concept has
already been argued and rejected by the United States Supreme Court. In Judice
v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376
(1977), the Supreme Court reached the Younger issue discussed therein
explicitly because "the existence of a pending, and not merely a
threatened, proceeding" permitted the Court to do so. Judice v. Vail, 430 U.S. at
333, 97 S.Ct at 1216.
As discussed in appellant's brief,
acceptance of the argument that a threatened proceeding permits further
analysis of abstention pursuant to Younger v. Harris would in effect
divest the federal courts of hearing any §
1983 claim against a state entity as a federal litigant's alleging the
requisite threat of "a likelihood that the complained of conduct will be
repeated" would then
mandate abstention under Younger.
The case law from this circuit as well as
from the Supreme Court of the United States is completely uniform in holding
that, in the absence of a pending proceeding, further consideration of Younger
abstention is inappropriate. A
threatened proceeding cannot substitute for a pending one. See Ankenbrandt v. Richards, 504 U.S.
689, 705, 112 S.Ct. 2206, 2216, 119 L.Ed.2d 468 (1992)
("Absent any pending proceeding in state tribunals, therefore, application
by the lower courts of Younger abstention was clearly erroneous."); Doran v. Salem Inn, Inc., 422 U.S.
922, 930, 95 S.Ct. 2561, 2567, 45 L.Ed.2d 648 (1974) (holding
that when there is no pending state proceeding, individuals may receive a
preliminary injunction); Hoover v.
Wagner, 47 F.3d 845, 848 (7th Cir.1995) ("The [Younger ]
doctrine is inapplicable here because none of the plaintiffs is
[presently ] being prosecuted for anything."); Parker v. Turner, 626 F.2d 1,
10 (6th Cir.1980) (Merritt, J., concurring) (stating that the existence of a
pending state proceeding is a crucial part of the Younger abstention
doctrine); Ealy v. Littlejohn,
569 F.2d 219, 232 (5th Cir.1978) (When there will be no interruption of
ongoing state proceedings, and thus no threat to proper federal-state
relations, Younger does not bar federal intervention); 17A Wright, Miller & Cooper,
§ 4253, at 212 ("Younger v. Harris and its
companion cases went to great pains to make it clear that the rules there laid
down applied only if there was a prosecution pending in state courts at the
time the federal proceeding was begun.")
Section 1983 reflects the "grave congressional concern that the
state courts had been deficient in protecting federal rights" and provides
for a "presumption" of a federal forum to vindicate such rights. Allen v. McCurry, 449 U.S. 90,
98‑99, 101 S.Ct. 411, 417, 66 L.Ed.2d 308 (1980).
In their brief, appellees exclusively focus
on case law discussing when, for purposes of Younger abstention, a case
in state court is deemed to have ended.
They accurately set forth the law established by the United States
Supreme Court in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct.
1200, 43 L.Ed.2d 482 (1975) holding that even the availability of state
court appellate review permits further consider of Younger
abstention. However, this argument
skips right over the controlling distinction upon which plaintiffs' argument
rests: in Huffman, Penzoil, Middlesex County Ethics Comm.,
Trainer, and every other case cited by appellees (Appellee's
Brief at page 15), there was a pending, not merely threatened, proceeding in
state court when the federal suit was filed.
Thus, in those cases, further consideration of Younger abstention
was appropriate.
As set forth in appellant's brief, UIFSA,
the latest in a string of interstate child support jurisdiction laws, is
completely inapplicable when no interstate child support questions are
raised. Neither UIFSA, nor its
predecessors (RURESA
and URESA)
address intrastate child support enforcement and the District Court's
interpretation of this statute as creating a jurisdiction issue between the
state of federal court was plainly erroneous.
Except to restate the District Court's position, appellees did not
address this argument. See, Sharp
v. Sharp, 336 N.J. Super. 492 (App.Div. 2001); Teare v. Bromley, 332 N.J. Super. 381 (Ch.Div. 2000).
Except to restate the District Court's
reasoning, appellees do not address nor attempt to distinguish the controlling
difference between the case at bar and Judice v. Vail, 430 U.S.
327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). In Judice, there was a "pending,
and not merely a threatened, proceeding."
Judice v. Vail, 430 U.S. at 333, 97 S.Ct at
1216. Here, there is only a threatened
proceeding.
A.
No pending state proceedings were implicated in the case before the
District Court.
Generally, an application to enforce
litigants rights is filed in state court pursuant to Rule 1:10-3. A separate Rule, 5:7-5(a), is specific to
the failure of a Family Court obligor to make court ordered support
payments. That Rule states, in relevant
part:
If a person fails to make payments . . . 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.
. . . The court . . . may then, in its discretion, institute
contempt proceedings . . . and an aggrieved party . . . may apply
to the court for relief in accordance with Rule 1:10-3. R. 5:7-5(a) (Emphasis added).
Appellees did not and cannot allege that any
such application was pending at the time of the filing of the complaint in the
District Court. None of the named
plaintiffs have a court date in the state system; no proceedings are
pending. Therefore, further analysis of
abstention pursuant to Younger v. Harris was completely
inappropriate. In their brief,
appellees go on to argue the other factors a District Court must consider when
asked to abstain pursuant to Younger v. Harris (important state
interest, availability of state forum to raise constitutional claims,
etc). Younger does not present
an "either/or" option, permitting a further inquiry when no pending
proceeding is present. The analysis
should end when, as here, the first prerequisite of a pending proceeding is
missing.
"Abstention from the exercise of
federal jurisdiction is the exception, not the rule." Colorado River Water Conservation Dist.
v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d
483 (1976). Federal courts have a
"virtually unflagging obligation ... to exercise the jurisdiction given to
them." United State v. Lewis,
936 F.Supp. 1093, 1108 (D.R.I. 1996).
In the absence of a pending proceeding, this Court should reverse the
District Court's decision to abstain from hearing this matter.
Point II
THE THIRD CIRCUIT SHOULD ADDRESS THE DENIAL
OF PLAINTIFFS' REQUEST FOR CLASS CERTIFICATION AND A PRELIMINARY INJUNCTION AS
NO FACTUAL DETERMINATION IS NECESSARY TO ADDRESS THE ISSUE.
Plaintiff's complaint more than adequately
alleged the prerequisites for certification of both the plaintiff and defendant
classes under Fed.R.Civ.P. 23(a).
Plaintiffs rely on the arguments contained at page 20 in their brief to
this Court, the argument presented in their brief submitted to the District
Court (JA 83-88), and the attachments submitted below (JA 97-100).
Appellees state repeatedly that plaintiffs
have supplied "no proof" as to their allegations. This argument ignores the well-settled rule
that, at this stage of the proceedings, all the allegations of the complaint
must be taken as true. It should
further be noted that, as the application to dismiss was filed in lieu of an
answer, plaintiffs allegations have not even been denied. Finally, plaintiffs certainly did provide
proof, including transcripts of state court proceedings subject to judicial
notice, official information distributed by the state Administrative Office of
the Courts, and other similar documentation (JA 101-144). The District Court erred in failing to certify
the classes.
The District Court erred in failing to issue
the requested injunction compelling appellees to adhere to the mandate of the
United State Constitution as unambiguously interpreted by the Supreme Court of
the United States. Appellees must
notify indigent obligors facing incarceration of their right to counsel and
must appoint counsel to represent them at hearings where they face a loss of
their liberty. Every federal court to
address the issue has found this to be a constitutional mandate. The result is not, as appellees imply, an
undue interference with the ability of the state to coerce compliance with its
orders. The real-world result is to
ensure that capable but recalcitrant obligors are incarcerated but those, like
the plaintiffs herein, are not. With
the assistance of counsel, the state court will be able to determine which
obligors can and should be deprived of their liberty as a legitimate instrument
of coercion.
Plaintiff Anne Pasqua lost custody of her
children as a result of mental illness.
She was unaware that she had a child support obligation to her former
husband when she appeared before the state court and was incarcerated in the
Mercer County Corrections Center when she could not come up with the $3,400
purge figure set by the Court (JA 27, 101-105). Ray Tolbert is the custodial parent of two young children and
noncustodial parent of four more children.
His child support orders were not prorated and the state court was
apparently unaware that he had children in his custody (ages 6 and 8) whom he
is responsible for. He was incarcerated
for seventy-three (73) days as he did not have anything close to the $10,000
release figure set by the Court (JA 28, 121-133). Michael Anthony, an inner-city Trenton resident with minimal job
skills, had become unemployed and was trying to provide for his spouse and
their five month old child when he was arrested on a child support warrant (JA
28). Had plaintiffs been represented,
counsel would have been able to distinguish these cases from those where
coercive incarceration was warranted.
It may not be enough to argue that ethereal
notions of fairness and justice demand the appointment of counsel for any
citizen, including "deadbeat parents", prior to their being compelled
to participate in a hearing wherein, if they lose, they face a loss of
liberty. It should be more than enough to demonstrate that the United States
Supreme Court has explicitly and unambiguously mandated it.
Appellees' claim that the United States
Supreme Court has not addressed this issue (Appellee's Brief at page 26) is
inexplicable. As pointed out repeatedly
below and in appellants' brief, in Lassiter v. Department of Social Services,
452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), a
unanimous
Supreme Court held that counsel must be appointed to represent citizens who
face a loss of liberty at a hearing:
... a right to appointed counsel exists
where the litigant may lose his physical liberty if he loses the litigation.
(452 U.S. at 25, 101 S.Ct. at 2158). . . even though proceedings may be styled
"civil" and not "criminal" . . . (452 U.S. at 26, 101 S.Ct.
at 2159) . . . In sum, the Court's
precedents speak with one voice about what "fundamental fairness" has
meant when the Court has considered the right to appointed counsel, and we thus
draw from them the presumption that an indigent litigant has a right to appointed
counsel only when, if he loses, he may be deprived of his physical liberty (452
U.S. at 25-26, 101 S.Ct. at 2159).
See also, e.g., In re
Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Walker v. McLain, 768 F.2d
1181 (10th Cir.1985), cert. denied, 474 U.S. 1061, 106 S.Ct.
805, 88 L.Ed.2d 781 (1986); Sevier
v. Turner, 742 F.2d 262 (6th Cir.1984); Ridgeway v. Baker, 720 F.2d 1409 (5th
Cir.1983); 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); Lake v. Speziale,
580 F.Supp. 1318 (D.Conn.1984); Young
v. Whitworth, 522 F.Supp. 759 (S.D.Ohio 1981); Mastin v. Fellerhoff, 526 F.Supp.
969 (S.D.Ohio 1981); County of Santa
Clara v. Superior Court, 2 Cal.App.4th 1686, 5 Cal.Rptr.2d 7
(1992); Mead v. Batchlor, 435
Mich. 480, 460 N.W.2d 493 (1990); Sanders
v. Shephard, 185 Ill.App.3d 719, 133 Ill.Dec. 712, 541 N.E.2d
1150 (1989); In re Marriage of
Stariha, 509 N.E.2d 1117 (Ind.App.1987); Hunt v. Moreland, 697 S.W.2d 326
(Mo.App.1985); Cox v. Slama, 355
N.W.2d 401 (Minn.1984); Rutherford
v. Rutherford, 296 Md. 347, 464 A.2d 228 (1983); McNabb v. Osmundson, 315 N.W.2d
9 (Iowa 1982); Padilla v. Padilla,
645 P.2d 1327 (Colo.App.1982); Tetro
v. Tetro, 86 Wash.2d 252, 544 P.2d 17 (1975).
The arguments presented by appellees on this
issue are the same as those that would be considered below and the question is
a purely legal one. As distinguished
from a declaration as to past injuries to the Constitutional rights of plaintiff
class, no fact-finding is required prior to the issuance of an injunction
requiring the defendant class to immediately prospectively comply with the
United States Constitution and clarifying what said compliance requires in
light of the Supreme Court's having "spok[en ] with one voice" as to
the substantive allegations of the complaint.
Lassiter v. Department of Social Services, 452 U.S. 18,
26, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640 (1981). This Court should remand for the immediate
entry of the constitutionally mandated injunction.
Conclusion
For the above-stated reasons, the Order of
the District Court should be reversed in all respects. The classes should be certified and the
preliminary injunction should issue forthwith.
Respectfully submitted this 12 Day of November, 2001 ,
___________________________
David Perry Davis, Esq.
DPD4553
