Wednesday, February 19, 2003

TRENTON - A Princeton lawyer is continuing his quest to have lawyers appointed for parents who face jail time for not paying child support.

In a class action lawsuit filed Friday in Superior Court, lawyer David Perry Davis said because these parents face possible incarceration it is unconstitutional for them to go to court without legal representation.

The lawsuit against family court Judges Gerald J. Council and F. Lee Forrester, Supreme Court Chief Justice Deborah Poritz and Richard J. Williams, the administrative director of the courts, was originally filed in federal court in 2000. Davis refiled the suit in state court after losing an appeal to the U.S. Third Circuit Court last month.

Davis said his three lead plaintiffs are a mentally ill Hamilton woman and two minimally employed Trenton men who all owe back child support. Davis claims two of the three were jailed for some time following hearings on their ability to pay.

All three remain in arrears and could be sent to jail, Davis said in the lawsuit.

"The plaintiffs have been incarcerated in violation of the 14th Amendment to the U.S. Constitution," he said in the suit. "And remain at risk of again having their federal constitutional rights violated. The unconstitutional deprivation of a fundamental right constitutes irreparable injury."

"What good does it do to throw Anne Pasqua in jail when she's mentally ill?" Davis asked. "An attorney would have (told the judge) there's a competence issue but the judge thought she was playing games and had made no attempt to comply."

Pasqua, 39, is now in a halfway house for mental patients, he said. Ray Tolbert, 49, of Trenton is $139,699 in arrears and remains too poor to pay, said Davis. The third plaintiff, Michael Anthony, 28, of Trenton also owes about $50,000 in child support but is indigent, said Davis.

"If you go to the jails, where is the doctor with the trophy wife who won't pay his child support?" asked Davis. "You don't see it."

Davis asked the court order requiring indigent parents who owe back child support be told of their right to an attorney, that lawyers be appointed for them and that the court review all cases of indigent parents currently jailed within 72 hours. About 100 people are in county jails statewide currently for nonpayment of child support, said Davis.

Winnie Comfort, a spokeswoman for the courts, declined to comment on the suit yesterday.

However, Rutgers Law professor Sally Goldfarb said the courts have judicial immunity from such lawsuits. Further, Goldfarb said, the U.S. Supreme Court held in an earlier case that civil litigants, unlike those facing criminal charges, do not have a right to a court-appointed attorney. In civil contempt-of-court cases the "incarcerated person holds the key to the jail cell in their own pocket." The person must comply with the court's order to be released.*

But Davis argued that his clients have no means of support, so they cannot pay court-ordered back child support.

New Jersey is one of six states that do not appoint counsel to parents who owe back child support, he said. And studies have found that legal representation does not lower the child-support collection rate, Davis added. A hearing has not been scheduled in the matter.

* Click here for my response to Professor Goldfarb's comments *