SUPERIOR COURT OF NEW JERSEY

LAW DIVISION, CIVIL PART

MERCER COUNTY, NEW JERSEY

DOCKET NO. MER-L-3761-01

A.D. #_______________________

JASMINE LEONARD, et al. )

)

Plaintiffs) TRANSCRIPT

) OF

-v- ) HEARING

)

AUDREY P. BLACKBURN, )

et al. )

)

Defendants.)

Place: Mercer County Courthouse 175 South Broad Street

Trenton, NJ 08650

Date: January 11, 2002

BEFORE:

HON. LINDA R. FEINBERG, J.S.C.

TRANSCRIPT ORDERED BY:

DAVID PERRY DAVIS, ESQ. (Law Office of David Perry Davis)

APPEARANCES:

DAVID PERRY DAVIS, ESQ. (Law Office of David Perry Davis)

Attorney for the Plaintiffs

BARBARA STOOP, Deputy Attorney General

Attorney for the Defendant

Transcriber, Denise M. O'Donnell

J&J COURT TRANSCRIBERS, INC.

268 Evergreen Avenue

Hamilton, NJ 08619

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Audio Recorded

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I N D E X

PAGE

WITNESSES FOR THE DEFENDANT

CYNTHIA VANEK

Examination by the Court......................... 38

Cross Examination by Mr. Davis................... 43

THE COURT: Good morning. Please be seated. All right the case -- the first case will be Leonard v. Blackburn. It's MER-L-3767-01, and good morning. Counsel, your appearances for the record?

MR. DAVIS: Good morning, Judge. David Perry Davis on behalf of the putative plaintiff class.

THE COURT: Thank you.

MS. STOOP: Good morning, Your Honor. Deputy Attorney General Barbara Stoop here representing all of the judicial defendants.

THE COURT: Thank you. Counsel, I'm going to place on the record the facts in this case so sit back and let me set forth the procedural history. Then I will give you sort of my tentative feelings and give you an opportunity argue.

This matter comes before the Court by way of an order to show cause filed by the plaintiffs, Jasmine Leonard, David Chavez, Devonica Chavez, Tiana Logan and Ashley Lewis, and plaintiffs Jeffrey Leonard, Devon Square, Craig Williams, James Thompson, Cheyanne Johnson, David Chavez, Todd Logan, Jeffrey Jones, Gary Davis, Cleo Merritt, and also Jawan Cruz and Ronald Cohn are listed on a number of the papers, but are really not specifically identified as plaintiffs. And that matter was filed on November 28th of 2001. On that date the Court signed an order to show cause

requiring the defendants to show cause today, January 11th, why an order should not be entered, 1) certifying the proposed plaintiff class, 2) certifying the proposed defendant class, 3) enjoining the defendant class from incarcerating any member of plaintiff class absent a showing based on substantial and credible evidence that said plaintiff has the ability to pay the release amount for granting a preliminary injunction compelling defendants to immediately release all currently incarcerated plaintiffs pending an Ability to Pay Hearing, or in the alternative to conduct an appropriate Ability to Pay Hearing within 24 hours. The application is opposed.

The first set of plaintiffs in this matter consists of Jasmine Leonard, David Chavez, Devonica Chavez, Tiana Logan and Ashley Louis, plaintiff children, the children of incarcerated child support obligors. The second set of plaintiffs consists of Jeffrey Leonard, Devon Square, Craig Williams, James Thompson, Cheyanne Johnson, David Chavez, Todd Logan, Jeffrey Jones, Gary J. Davis and Cleo Merritt, who are the plaintiff obligors.

On November 28th of 2001, both sets of plaintiffs filed a complaint and order to show cause seeking declaratory and injunctive relief against the defendants Honorable Audrey P. Blackburn, Honorable F. Lee Forrester, presiding judge of the family part of Mercer County, the

Honorable Rosalie Cooper, and the Honorable Thomas Cavanagh, and the Honorable Louis Locascio, collectively referred to as "Defendant Judges" to prevent them from engaging in practices which allegedly abridge the constitutional rights of plaintiff. Judge Blackburn and Forrester are Superior Court Judges in Mercer County; Rosalie Cooper is a Superior Court Judge in Ocean County; and Thomas Cavanagh and Louis Locascio are Superior Court Judges in Monmouth County.

Plaintiffs assert that the parents of plaintiff children have been incarcerated by Defendant Judges and had either, 1) had release or purge amount set based not on their ability to pay, but on other impermissible factors such as the total amount of arrearages owed or completely arbitrary numbers, or 2) have been held for many days or weeks without having had any release amount set by way of a release amount or by bail.

According to plaintiffs, plaintiffs' children have be unconstitutionally denied their fundamental right to a meaningful relationship with their incarcerated parent and have been denied their right to financial child support. Plaintiffs also assert that the plaintiff obligors incarcerated by defendants have either, 1) had release or purge amount set based not on their ability to pay, but on other impermissible factors such as the total amount of arrearages owed or arbitrary numbers, or have been held for

many days or weeks without having had any release amount set by way of a release amount or by bail.

More specifically, plaintiffs assert the following regarding each plaintiff obligor: 1) plaintiff obligor Devon Square does not have the present ability to pay the $3,500 release amount set by Judge Blackburn, and allegedly no inquiry was made regarding the ability of said plaintiff to pay; 2) plaintiff obligor Criag Williams has not been reviewed since August of 2001 and that his release amount is 8,000 which he cannot pay. Plaintiff obligor James Thompson does not have the present ability to pay the $1,500 release amount set by Judge Blackburn, and allegedly no inquiry was made regarding his ability to pay; 4) plaintiff obligor Cheyanne Johnson, case has not been reviewed since November of 2001, and he remains unable to pay child support arrearages. I'm not going to list all of the parties, but the allegation is the same for all of the plaintiff obligors.

Plaintiff asserts that the obligors who have had their release amounts based not on their ability to pay, but on other impermissible factors, have been deprived of their physical liberty. In addition, plaintiffs assert that if they are incarcerated for a period in excess of 24 hours without having a hearing, they have been deprived of their constitutional rights.

Plaintiffs seek judgment in favor and against the defendants declaring that the constitutional rights of plaintiffs and all of those that are similarly situated have been violated; enjoining the defendant class from establishing a purge or a release amount for plaintiff obligors without first making specific findings based on substantial and credible evidence that plaintiff obligors have the ability to pay; 3) requiring the defendant class to immediately review all persons now incarcerated in violation of their constitutional rights; 4) requiring defendant class to prospectively review the cases of all plaintiff obligors within 12 hours of their arrest or incarceration, and set an amount -- release amount consistent with the ability of the payor to pay; and for counsel fees and costs.

In addition, plaintiff contends that this is a proper class action suit and should be certified consistent with Rule 4:32-1(a). Plaintiffs allege that the requirements under the rule have been satisfied. Specifically, plaintiffs contend that the standard for establishing the numerosity requirement is traditionally relaxed when seeking injunctive or declaratory relief. According to plaintiffs, the relaxed standard, coupled with the vast number of individuals like said plaintiffs has satisfied the requirement. And, also, the plaintiffs allege that the other requirements set forth in 4:32 have been

satisfied.

On January 2nd of 2002, defendants filed a motion to dismiss. In support of the motion, the defendants contend that the allegations that are set forth in the complaint are incorrect and inaccurate. Defendants dispute that the plaintiff obligors were incarcerated for

non-payment of child support without first being given an Ability to Pay Hearing. According to the defendants, the plaintiff obligors were incarcerated for their failure to appear at scheduled Ability to Pay Hearings and that they are in on-compliance of the court order. In addition, defendants indicate that purge amount set for plaintiffs release is akin to a fine for their failure to appear, and it is not necessary under the current system for the court to assess an ability to pay.

Defendants further dispute that the defendants Cavanagh and Locascio of Monmouth County were in any way involved in any of the plaintiffs' cases. Apparently, according the defendant, the case of Mr. Cohn was actually presided over by Judge Hayser who, interestingly enough, is now sitting in Mercer.

Defendants also contend that plaintiffs have failed to demonstrate any entitlement to injunctive relief. Defendants submit that plaintiffs have failed to make a preliminary showing of a reasonable probability of success

on the merits, and that most of the information contained in the plaintiffs' moving papers are based on incorrect and inaccurate facts.

Lastly, the defendants contend that plaintiffs have failed to establish any entitlement to class certification for either the plaintiff or defendant class. Defendants specifically represent that the plaintiff class are minors and unable to bring such litigation without proper authority, and also that the request for class certification is premature because of the motion now before the Court to dismiss. Additionally, the defendants assert that the plaintiffs have failed to satisfy the requirements that are set forth in Rule 4:32.

Let me give you some of my tentative thoughts. Number one, there is a process in New Jersey when individuals fail to pay child support. There are a number of cases, Pierce v. Pierce, the Saltzman case that all stand for the proposition that when a defendant fails to pay child support, the court -- the probation department has the authority to initiate an action to enforce litigant's rights, under Rule 1:10-3. They send out a notice directing the obligor to appear in court. That notice is sent by regular and certified mail, and that's consistent with the court rule. Based on the certifications from Ocean, Mercer and Monmouth County, if the court is satisfied that the

obligor has received notice -- and I assume that the court reviews the green return receipt card to verify service -- if the court is satisfied that the obligor has received notice and the obligor has not appeared, the court will issue a warrant for the defendant's arrest, not for the -- any other reason other than the fact that obligor has failed to appear. That process is the appropriate process. That is the process defined by court rule, affirmed by a number of court cases, and that's a rule that's been in place for probably well over two decades.

In this particular case, Mr. Davis, who is representing the plaintiffs, allege that the defendants were incarcerated for their failure to pay child support and that the court did not conduct an Ability to Pay Hearing. According to the representation of the State, all of these obligors were arrested and held because they failed to appear at the hearing. I don't really think that's probably in dispute, that they were -- Mr. Davis, you don't dispute that.

MR. DAVIS: No, Judge.

THE COURT: So, we have a situation here where an obligor -- a child support amount has been set -- an obligor has not paid child support, probation department has initiated a 1:10-3 action, and the defendant has failed to appear. The defendant is then arrested. He's arrested,

he's held, and brought before the court at various times. In one of the counties -- I don't know if it's Ocean or Monmouth -- the defendant is generally brought before the court the next day. In one of the other counties, the defendant is brought before the court generally within three to four days. So, in two of the counties that are involved -- not Mercer, Ocean and Monmouth -- the hearing on the failure to appear occurs either the next day or within four days. In Mercer County, those hearings on the failure to appear occur apparently twice a month on Thursday. I believe it's either the first and third, or second and fourth Thursday of every month.

I am not satisfied -- and I'm giving you my tentative thoughts -- and certainly these are my tentative thoughts, and certainly counsel should argue because I've been known to change my mind -- I don't think this is a class-action suit under 4:32. These defendants and these plaintiffs, more specifically the plaintiffs, are individuals who have very different facts and very different cases and don't fall within the parameters of 4:32. Second, the process that was followed in all of these cases in terms of brining in an obligor is established both by court rule and by case law, and an individual obligor who feels that their particular case has been handled inappropriately does have a mechanism of appeal. In fact, the plaintiffs

apparently have filed appeals in a number of cases. In the Cruz case -- Cruz is not a plaintiff in this action, but Cruz filed an appeal. Mr. Cohn is not a plaintiff in this case, but filed an appeal. Mr. Tolbert is not a plaintiff in this case, but filed an appeal. Mr. Weinstein is not a plaintiff in this case, but filed an appeal. Mr. Logan is a plaintiff in this case and filed an appeal, and Mr. Davis is a plaintiff in this case and filed an appeal.

If a individual obligor feels that an individual judge has not properly conducted a child support enforcement hearing and that the judge has not complied with the standards in Pierce and the clear requirement that there be an Ability to Pay Hearing -- and the court has to make specific findings -- that obligor, like the obligors who have already filed appeals, have the right to initiate an appeal. That decision is a final decision. It's appealable to the Appellate Division, and the obligor has relief available.

I don't think it's my role as judge of the Superior Court -- I am not an Appellate Division judge -- to look at the transcripts of child support hearings and pass on whether a particular judge handled that hearing properly. I would indicate for the record that I have a number of transcripts that were submitted by Mr. Davis -- Poldwalk (phonetic) -- I have that transcript. That individual's not

a plaintiff. Mr. Cohn is not a plaintiff. Mr. Vincent is not a plaintiff. Mr. Tolbert is not a plaintiff. Mr. Cruz is not a plaintiff, and Mr. Sweeney. There are some plaintiffs where I do have the transcripts -- of Mr. Leonard, of Devon Square, of James Thompson, of Todd Logan, and of Gary Davis. Mr. Logan filed an appeal and Mr. Davis filed an appeal. So, there are Mr. Leonard, Mr. Square and Mr. Thompson and Mr. Merritt -- I have that transcript -- so, I have four transcripts of four plaintiffs in this case, and I don't believe it's my role to look at those transcripts and to pass on whether or not the judge in those cases properly conducted an Ability to Pay Hearing. It really is an issue for an appellate court, and certainly there have been appeals -- and I'd have to indicate that there are hundreds, perhaps thousands, of child support hearings conducted throughout the State of New Jersey because of the large number of children who are being supported as a result of a divorce or parents who are not married, living separate and there is child support owed. So, I am not convinced at this point that this is appropriate under 4:32, and I'm not convinced that it's appropriate for me to review the findings of another judge.

The one issue I am concerned about, however -- the one issue that raises some questions to the Court is the issue of when these hearings are held. When a -- and I know

what the argument is -- the argument is -- and it's the argument that I would make if I was in the position of the Deputy Attorney General, and Ms. Stoop has made this argument -- that there's a difference, that these are individuals -- actually there's two classes of individuals -- there are those individuals who have failed to appear for their hearing and a warrant has been issued, and Ms. Stoop, the Deputy Attorney General, would argue that that's different than an Ability to Pay Hearing. These are people who have failed to appear in court, and there in a different status. There are also those people who have failed to appear who have warrants on other things, and the position is there's no need to bring that -- there are actually two classes; those people who have failed to appear, and the only reason that they're being held is because of their failure to appear, that's one class. Then there is another class of people who have failed to appear, but they've got warrants against them, and having been a judge long enough I know that, you know, often times when you pick a defendant up and you run him through the computer, there are other things. And, I think the policy has been -- and I don't particularly have any problems with this position -- that if you have a defendant who's been picked up on a Failure to Appear Warrant for failure to pay child support, and that defendant has other warrants, that there's really no urgency

to have that obligor brought before the court for a hearing when that defendant's going to be held on other things, and it's probably a criminal matter.

But, I am somewhat troubled by the notion that a person who has failed to appear, and there's nothing else holding that defendant, that if that person would have to wait potentially two weeks to come before the court. I am concerned about that. And, I know that Mr. Davis suggests that the court adopt the standard set forth in Rule 3:4-1 -- I believe that's the rule -- where criminal defendants where bail has not been set are required to come before the court within 12 hours. I'm not convinced that that's the proper standard, 12 hours. But, my sense is that a person who's been picked up on a Failure to Appear Warrant and has no other detainers, that person should be brought before the court within a reasonable period of time. And, my sense is that it probably should be within 72 hours. It probably should be within 72 hours. Now, that's a number I've -- you could say that I've arbitrarily taken it, but I have given some thought to it particularly in light of the fact that if a person is picked up on Friday that that -- it's impossible to have probation and all the other people available to participate in a hearing over the weekend. It's just logistically -- and because of the failure to appear, I think there is some justification for waiting a certain

period of time, and I think 72 hours is probably the right period of time because that encompasses if you pick somebody up on a Friday that the hearing would be on Monday.

So, that's where I am right now. I do have some concerns about not having a hearing for a period of two weeks, and I would indicate that that is apparently the practice in Mercer County. It may very well be the practice in other counties. I don't know whether that is the practice.

And, then there is the issue of review hearings. In other words, once you have a defendant who appears in court on a Failure to Appear Warrant -- you pick him up on a Friday, you bring him to court -- or her, although most of these cases involve men, there certainly are women also who have child support obligations -- when you bring that obligor to court on Monday morning, and then you have an Ability to Pay Hearing, which clearly the Ability to Pay Hearing has to involve a very fact sensitive specific inquiry as to the ability of this obligor to pay, and that's the case law. And, there's an established remedy if an obligor feels that they have not been treated properly. And, I don't even have any problem in the context of an order saying very specifically what the standard is. But, it would seem to me that there should be some sort of standardized review of these cases, and that it probably

should be every two weeks because circumstances may change. You may have an obligor who a court decides that they have the ability to pay $1,500 and in two weeks the obligor comes back and says to the judge, judge I've tried hard and I have $1,000. I think there should be some type of a review after two weeks. I don't think that that's unreasonable. And, it's interesting because I did -- I contacted a judge in criminal to find out whether they review bails, you know, how do they review bails in criminal? And, apparently, they don't review the bails unless there's a motion to review bail. But, I think that child support's a little different. I don't know if we need to put the onus on the child support obligor to file a motion. I just think probably there's something to be said for bringing an obligor back in a

two-week period to review his or her status. Economic circumstances change, and I think that's probably an appropriate period of time to review.

So, those are my initial thoughts. I have read every affidavit and every certification. With reference to the four plaintiffs who have not filed appeals to which I have transcripts for, I would encompass them within the 72 hour review, and those are -- actually I would encompass all of the plaintiffs that have been identified by Mr. Davis -- I think there's ten of them -- who have not filed an appeal -- I would encompass them within the 72 hour review. So,

those are my initial thoughts. Mr. Davis?

MR. DAVIS: Judge, taking in order -- initially, Your Honor has indicated that you don't feel this is a -- an appropriate class-action. Well, Your Honor didn't give any reasons. Perhaps I can ask this as a question and then respond. There are requirements of numerosity, technicality, commonality --

THE COURT: But there -- the commonality is really -- every case is fact sensitive, is different. I don't think there is numerosity. You've identified -- there are thousands and thousands of cases every year, and you've extracted or identified a very small number. There's no evidence before the Court that this is something that involves a large number of individuals.

MR. DAVIS: Judge, initially, in a civil rights context, the Third Circuit has certified a class of one when there's a credible allegation that civil rights are being violated, a class of one. Here we have at least ten. Your Honor, each one of these plaintiff's civil rights was violated. That's indisputable because there are reversals from the Appellate Division. I'm not asking you to review the trial court, I'm asking you to see the pattern that is going on, and the pattern is the consistent failure at the Ability to Pay Hearing to make any inquiry into the assets that are available -- any. Your Honor --

THE COURT: The Appellate Division has made a decision in a few cases. There are thousands of cases every year to which there are no appeals.

MR. DAVIS: Judge, the Appellate Division has ruled in 100 percent of the appeals brought, and there are now eight summary reversals from 12 respected appellate judge, all of whom -- at this point, Judge, it's a two-page standard form. If Your Honor looks at the later reversals, they see these coming, they just issue the standard form that says there was no inquiry made in the assets of obligor, the order incarcerating him is, therefore, reversed. Your Honor has copies --

THE COURT: Well, you know, there are cases in civil cases where probably judges have a different opinion about verbal threshold. Do you then join all plaintiffs who have filed lawsuits in the Civil Division who because of judge's perhaps misapplication of the verbal threshold, do you certify that as a class?

MR. DAVIS: Judge, we're not talking about somebody's "right to pursue pain and suffering" from an automobile accident, we're talking about liberty. We're talking about the second most severe punishment outside of death that the State can impose on a person. Every constitutional protection has to be honored when you're talking about taking somebody's liberty away. Judge, I want

to pursue this, but just very quickly, as far as the commonality, I cited case law, Vargas v. Calabrese, 634 F.Supp. 910 from the Third Circuit that says there must be some questions of law or fact in common, some. And, that emphasis -- the, either the bold or the italics, is in the original case. Some -- we don't have to have exact. Obviously, you're not going to have --

THE COURT: The four standards that are articulated in 4:32 and the three other criteria that are specified in the second part of the rule are collective. They're not either, or. You need to have all of them. And, I don't know how you convince the Court that there's numerosity.

MR. DAVIS: Judge, there was 53,000 child support enforcement hearings last year. In a civil rights context as I indicated, a class of one, and I'll provide that case to the Court if it would be helpful. But we have at least ten. We have ten people that sat, some of whom for 45 days, the longest one for 93 days without any kind of review of his child support obligation. That's a person that had I believe four children. Those children were deprived not only of the financial child support that this person could have provided if they had been out and working, they were provided (sic) of the love and companionship that every child's entitled to.

THE COURT: All right. I don't want to hear about the love and companionship; these are also people who blatantly failed to pay child support. But, I'll let the State respond and, if you want reasons, I have a tentative write-up. I'd be happy to set forth the reasons.

MR. DAVIS: Judge, I would ask the Court to more carefully scrutinize the transcripts that were presented. Your Honor indicated that each one of these must include a fact sensitive case-by-case inquiry of the ability to pay. These hearings are 30 seconds each. The transcripts are two pages each.

THE COURT: Yes, but let me ask you this. I've reviewed those transcripts, and I have some concerns about the level of inquiry by the judges. I don't dispute that. But, I'm not an appellate court. I'm not an appellate court. And, I don't know what authority that I have to look at that and say that the judge misapplied the law. As a result -- I mean, because of the concerns by the Court and

-- my initial impression is to encompass those individuals within the 72 hour review in order to deal with that, because I don't believe that I have the authority to look at that transcript and say, I am going to reverse the -- I don't have the authority, I'm not an appellate court.

MR. DAVIS: I'm not asking you to, Judge.

THE COURT: I mean -- yes.

MR. DAVIS: I'm very clearly not asking you to.

THE COURT: So, that my thought in terms of how the court deals with what may be potentially a problem is to require that those individuals -- and I have the transcript of four of the plaintiffs. There are certain plaintiffs that you've listed who have not appealed that I don't have the transcript for, but I would include those plaintiffs, as well, within a 72 hour review.

MR. DAVIS: Judge, it sounds like Your Honor's granting relief as to the plaintiff class at least as to one of the areas of relief sought which is a more quick review. Judge, from my own personal knowledge I can represent that in Middlesex they do it every single day that court is in session. Ocean -- different counties do it two or three times. Mercer is among --

THE COURT: That's not before me. I don't have -- I mean --

MR. DAVIS: Your Honor, if I can clarify that the point you have stated several times that you -- you're not an appellate court, and I'm not asking you to be one. What I'm asking you to do is to look at the overwhelming evidence presented before you -- and, Judge, as an officer of the court, this is every transcript I have and every transcript is wrong. I'm asking you to look at the fact that it --

THE COURT: Well, I don't know whether every

transcript is wrong. You have appealed a number of cases. There are one, two, three, four, five, six appeals.

MR. DAVIS: Eight, Judge.

THE COURT: Now, there are thousands and thousands of child support hearings every year in the State of New Jersey, and I would suspect that there would be a number of appeals and that there would be a number of individuals who would prevail on appeal. That happens in child support cases. It happens in divorce cases. It happens in termination of rights. It happens in a number of cases.

MR. DAVIS: Judge, in most appeals it's not 100 percent reversal rate. I think the present reversal rate on average is 28 percent.

THE COURT: Yes, but I don't know how many other appeals have been filed. You've given me six appeals where you have prevailed. There may have been hundreds of other appeals where there weren't --

MR. DAVIS: Judge, just for the record, I see my reply brief sitting on the bench, and Your Honor has referred to some of the attachments in the exhibits, but none of the arguments that are contained in the reply brief. THE COURT: I've read -- well --

MR. DAVIS: I'm sure -- you haven't just -- you haven't referred to them in any way, Judge, and --

THE COURT: I've referred to each and every one.

I don't know how far you want me to go.

MR. DAVIS: Okay. Judge --

THE COURT: What other argument do you have? Tell -- give me your best argument on when a person should be reviewed once they've been picked up on a Failure to Appear Warrant.

MR. DAVIS: Judge, I want to be clear for the record that there's no challenge to the present procedure of picking somebody up who fails to appear who was properly noticed. That's not challenged

THE COURT: All right. So what does the court do? You've got a defendant who has been served. There is proof of service with a green return receipt card, you have a defendant. What's your reaction to the practice of having a review hearing twice a month?

MR. DAVIS: Judge, I would submit that that is long. If the criminal standard of 12 hours, which I understand may not be appropriate, that this person -- there is evidence that they failed to appear -- it's not a criminal standard --

THE COURT: What's your reaction to a 72 hour review hearing?

MR. DAVIS: That would certainly, Judge -- I mean, that's adequate. I believe that that's appropriate especially if you consider -- I would think it should be

done every day the court is in sess