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
(609)586-2311
FAX NO. (609)587-3599
E-mail: jjcourt@optonline.net
Audio Recorded
Audio Operator, M. Bethea
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
session, and that will sometimes necessitate a 72 hour if there's a holiday
weekend. But, Judge --
THE
COURT: What's your position on once a
determination has been made as to brining that obligor back to court?
MR.
DAVIS: Judge, the focus of this
complaint is what happens at those hearings.
They shouldn't be brought back --
THE
COURT: Well, you've also asked the
Court -- you've also asked the Court to require that there be a hearing within
a certain period of time.
MR.
DAVIS: That's correct, Judge.
THE
COURT: That's one of the things that
you're seeking relief on. And, so I'm
asking you, what's your position on bringing a obligor back to court every two
weeks?
MR.
DAVIS: If there is evidence that that
person has the ability to pay -- and that's the point that we're going light on
here, Judge, that I want to focus on -- if there's evidence that person has the
ability to pay, review them every two weeks and see if they have decided that
they will write the check. What I'm
concerned about, Judge, is the people who are in jail right now who can't write
the check, who don't have the money, who don't have the assets
who are sitting here on open-ended
civil commitments --
THE
COURT: But, those individuals can
effectuate an appeal.
MR.
DAVIS: Judge, how can they effectuate
an appeal? That's why this is a class
action. I went down to the jail because
I was -- I've been retained on eight -- on six cases -- two of these were pro
bono -- on six cases where I went down to the jail and I spoke with the person
and I got them out. The last case, who
is not a named plaintiff, a man named Ronald Sweeney -- when I went down to the
jail to visit him -- they now have all the child support obligors in one area
-- and I learned that the system is still the way it was a year and a half ago,
which surprised me -- that all of these people are sitting in here. Judge, in the courtroom right now is Todd
Logan --
THE
COURT: I --
MR.
DAVIS: -- and one of the other
plaintiffs and, Your Honor, these people were sitting in here with -- $10,000
release amounts. They don't have it,
and it's wrong, and it's a violation of their civil rights.
THE
COURT: But, they're now out. They filed an appeal, and --
MR.
DAVIS: Jude, one of them filed an
appeal, Judge, the other one has now put in 60 or 70 days. We could call him to testify if Your Honor
wanted to --
THE
COURT: I'm not going to take any
testimony today.
MR.
DAVIS: I understand you don't want to,
but these are people that were deprived for their liberty for -- the longest
was 93 days. Judge Council stated on
the record and it's quoted in our reply brief, "I have people who have sat
in jail for six months owing me a few thousand dollars." That's stated by Judge Council, and that is
wrong. That is a violation of the civil
rights of these people.
THE
COURT: I don't have that -- do I have
that transcript?
MR.
DAVIS: Yes, you -- no, Judge -- yes,
you do, Judge. That is Ray Tolbert, and
I can tell you that that --
THE
COURT: Ray Tolbert -- all right. Don't -- don't -- I have --
MR. DAVIS: I can tell you which exhibit number it is,
Judge.
THE
COURT: Well, that's -- okay.
MR.
DAVIS: Judge, these people have a civil
right not to be incarcerated "coercively" if they don't have the
ability to pay. And, I'm not asking
Your Honor to review any one of these individual -- to sit as a court of review
for Judge Hayser or Judge Blackburn or Judge Kelly, but what Your Honor needs
to see here is that there is a pattern, and it's an ongoing pattern. Judge, I'm a sole practitioner. I
don't have the resources to get a
thousand transcripts. What I've
presented you, I've testified as an officer of the court, is every transcript
I've had. I have yet to see an Ability
to Pay Hearing -- no that's not true -- I've seen very few Ability to Pay
Hearings where the person had the ability and they were appropriately
incarcerated.
THE
COURT: Well, you haven't reviewed all
the transcripts of the many thousands of child support hearings. MR.
DAVIS: Judge --
THE
COURT: All right. I understand your argument. Let me hear from the other side. React to his -- to Mr. Davis's request for
class action certification.
MS.
STOOP: Your Honor, obviously, I find it
completely inappropriate not only for the reasons that Your Honor has stated,
but in reviewing Mr. Davis's reply brief, I realized that Mr. Davis makes a
statement at the end, "It is the system that is being challenged, not the
character of any of the defendants, named or otherwise." And, the relief that Mr. Davis is seeking --
he's named the wrong -- the wrong defendants, Your Honor. Suing Superior Court judges in order to try
to get this system changed, is not appropriate. The Superior Court judges don't establish policy for the judicial
system of New Jersey. That is left to
the Administrative Office of the Courts, otherwise known as the AOC. If Mr. Davis is looking for a change in the
system, he should be suing or bring
to court the AOC, not six Superior Court judges.
As you
pointed out, in addition, naming six Superior Court judges and throwing out
transcripts from a very small number of hearings is inappropriate to support a
class action suit. So, not only has he
named the wrong defendants, including by the way Judge Locascio and Judge
Cavanagh in Monmouth who never even dealt with any of these plaintiffs'
incarcerations, he's also trying to bring a class action suit based on an
infinitesimal number of cases, which is inappropriate under the requirements of
the rule.
THE
COURT: Do you know how many child
support cases are heard every year in New Jersey?
MS.
STOOP: I would hate to even guess, Your
Honor.
THE
COURT: There's probably at least
30,000, but I don't know that for a fact.
But, anyway, go on.
MS.
STOOP: So, he's -- number one, he's
named the wrong party to try to gain the relief that he is seeking. He is -- has -- he has alleged inadequate
hearings, but in reviewing the transcripts that he did supply, I think it's
difficult for him to show that every judge is not inquiring because if you look
at the transcripts some of the judges do indeed ask about, do you have a job,
you know, did you have a job, how long did you work, when did you stop -- this
kind
of thing. Perhaps Mr. Davis finds that inadequate, but there was not a lack
of any kind of inquiry in many of these transcripts as to a person's ability to
come up with some kind of payment.
As you had
mentioned, Your Honor, just as an aside, the children that he is trying to
bring in as plaintiff class is completely inappropriate. Minors are not permitted to bring a lawsuit
unless they have some kind of authority or authority figure representing them
or looking after their interests. And,
this is not present in this case.
That really is basically what I would argue in addition
to the arguments Your Honor has already made regarding the class action.
THE
COURT: Now, let me ask you this. You've heard the Court's comments with
reference to the concern when an individual is brought back on a failure to
appear --
MS.
STOOP: Yes.
THE
COURT: -- and in trying to structure a
time period that might be appropriate, I've come up with this concept of 72
hours and then a two-week review thereafter.
What's your reaction to that?
MS.
STOOP: Well, my initial reaction, Your
Honor, to the two-week review is that it's my understanding that in Mercer
County this is what occurs.
THE
COURT: They're doing that --
MS.
STOOP: They're doing that.
THE
COURT: Yes, but not the initial one --
MS.
STOOP: No, not the --
THE
COURT: I'm concerned about the initial
-- right.
MS.
STOOP: That's correct. The initial one -- it's my understanding
that -- and I have to plead -- I'm just learning this as we go along, Judge --
THE
COURT: Okay, but -- right, but there
are --
MS.
STOOP: -- but, it's my -- oh, I'm
sorry.
THE COURT: There are -- are there people here --
MS.
STOOP: Yes, Your Honor.
THE
COURT: -- from any of the
counties? Okay. It's my understanding that people are
brought in -- that they do hearings twice a month -- so, if somebody's brought
in on a failure to appear and they just had a hearing, that person could sit
for another 14 days. That's my
understanding.
MS.
STOOP: My understanding, Your Honor,
may be a little different. My
understanding is that on the first -- and I have people out here from probation
waiting to answer any questions you might have, Your Honor --
THE
COURT: All right. Well, I'd like to know what --
MS.
STOOP: It's my understanding that on
the first and third Thursdays there are videotaped interviews with people at
the jail, and then there are in addition to that official hearings before the
court on the second and fourth Thursday of the month.
THE
COURT: Right, but they're not seeing a
judge potentially for 14 days?
MS.
STOOP: That's correct. They would be interviewed by a court
official of some kind on the first and --
THE
COURT: A probation person, I assume.
MS.
STOOP: -- on the first and the third.
THE
COURT: Because I know that often times
the Probation Department will try to negotiate and try to see if they can resolve
the matter.
MS.
STOOP: As far as the 72 hour -- as the
72 hour --
THE
COURT: Hearing --
MS.
STOOP: -- limitation period is
concerned, I'm not quite sure how to address that. The -- my problem is that I'm trying to represent three -- at
this point, people from three separate counties who do things in three
different ways.
THE
COURT: In one of the counties, they
bring the person in the next day according to the certification.
MR.
DAVIS: Middlesex, Judge.
MS.
STOOP: I believe that was Middlesex
County, Your Honor.
MR.
DAVIS: I'm not sure if she had a
certification, but I know that in Middlesex they bring them in every day --
every morning that the court --
THE
COURT: Okay. Well, I don't have Middlesex.
I only have Monmouth, Mercer and Ocean.
Those are the only counties that are involved in this. But, here we go, in Ocean County, it's the
next business day or the next -- usually the next business day, so that's
Ocean. And Monmouth must be -- they say
four days. Okay, that's --
MS.
STOOP: The only problem I see with --
THE
COURT: It's the other way around? Okay, let me see what we've got here. This is Ocean County. This is a little confusion (sic). If the obligor does not pay the purge
amount, he or she will remain incarcerated until the next court day, which is
usually the next business day.
Therefore, the longest possible period of time that an obligor would be
incarcerated on his Failure to Appear Warrant is three non-business days.
MS.
STOOP: I think they mean like a holiday
weekend, Your Honor.
UNIDENTIFIED
SPEAKER: That's Ocean.
THE
COURT: Yes, that's Ocean.
UNIDENTIFIED
SPEAKER: I --
THE
COURT: Now, I think -- is Carpenter
from Monmouth?
MS.
STOOP: Carpenter is from Monmouth
County.
THE
COURT: Oh, okay, Carpenter is from
Monmouth. So, Monmouth is generally one
day, and Ocean County -- thank you -- Ocean County is four days, the longest
possible period of time, because they review in Ocean Tuesday, Wednesday and Thursday.
MS.
STOOP: Yes. The only problem that I see as a possible problem, Your Honor, is
the availability of court personnel. As
I'm sure you're well aware, Family Court is very, very busy.
THE
COURT: Well, but -- yes, I understand
that, but that's still no excuse for not -- to have somebody sit in jail for 14
days before being brought before the court.
I know the argument that's made is that it's a failure to appear so that
they've sort of given up --
MS.
STOOP: Right, we waited for them, Your
Honor. They didn't show up.
THE COURT:
I understand.
MS.
STOOP: We gave them the opportunity to
come in and talk to us --
THE
COURT: I understand that, but --
MS.
STOOP: -- and they thumbed their nose.
THE
COURT: Even somebody picked up on a
warrant in a criminal case goes before the court before 14 days. It would seem that somebody on a child
support should be brought before the court sooner than that, it would seem to
me.
MS.
STOOP: I guess -- I guess, Your Honor,
what I would say would be that I understand Your Honor's concern and that they
-- that these obligors be brought within a reasonable period of time. I'm just not sure what the reasonable period
of time would be given the --
THE
COURT: Well, let me --
MS.
STOOP: -- the court situation.
THE
COURT: Yes, well, I'm more concerned
about the rights of the obligors than I am about the resources of the court
because I think that that's a significant issue. My sense is that this may be something that the Family Practice
Committee should be taking a look at and making a recommendation to the Supreme
Court, and perhaps what the Court should do is set a 72 hour review standard
subject to this matter being considered by the Family Practice Committee and
recommendations being made to the Supreme Court.
MS.
STOOP: May I ask, Your Honor, I just
want to make sure that I'm clear. When
you're speaking about the 72 hour window, you're addressing that solely to
people who are
picked up --
THE
COURT: Picked up on a warrant.
MS.
STOOP: -- only on failure to appear
charges --
THE COURT: And only in those --
MS.
STOOP: -- and do not have other --
THE
COURT: Other -- that's correct, that's
correct.
MS.
STOOP: My other concern, then, is
notification and whether or not the Family Part would be notified in a timely
manner.
THE COURT: Well, the jail would just notify the Family
Court. That's -- that happens all the
time. That happens all the time. You have some people from probation?
MS.
STOOP: I do, Your Honor.
THE
COURT: I'd like to ask just a couple of
questions.
MS. STOOP: May I go and get them, Your Honor?
THE
COURT: Yes, please.
(Pause)
MS.
STOOP: Your Honor, this is Ms. Nancy
Desaw (phonetic).
THE
COURT: Yes.
MS.
STOOP: -- who's a supervisor of the
Bench Warrant Unit and Ms. Cynthia Vanek (phonetic) who is the
Assistant Probation Officer in
charge of child support enforcement.
THE
COURT: All right. I just have a couple questions. Come on up here, and Mr. Davis I'll give you
an opportunity to ask any questions that you'd like, as well. I just want to get some information.
MS.
STOOP: Where would you like them Your
Honor?
THE
COURT: They can just come right up
here.
MS.
STOOP: Thank you, Your Honor.
MR.
DAVIS: We have a seat for them, Judge,
if they'd like it.
THE
COURT: Pardon me?
MR. DAVIS:
We have a seat for them if they'd like
it. Judge, I would prefer if they're in
front of a microphone.
THE
COURT: Yes, I'm going to have them sit
right here. Ms. Vanek, why don't you go
to the microphone right here?
MS.
VANEK: Sure.
THE
COURT: And, I'm just going to ask you a
-- these are just procedural questions.
MS.
VANEK: Sure.
THE
COURT: I have -- when a defendant --
when an obligor is picked up on a -- let me swear you in first. I don't want to take a lot of testimony, I
-- these are just
procedural questions, but let me
swear you in. Will you raise your right
hand?
C Y N T H I A V A N E K, DEFENSE WITNESS, SWORN
N A N C Y D E S A W, DEFENSE WITNESS, SWORN
THE
WITNESS: Yes, I do.
THE
COURT: And, your full name?
THE
WITNESS: Cynthia Vanek.
THE
COURT: And, your full name?
THE
WITNESS: Nancy Desaw.
EXAMINATION BY THE COURT:
Q Ms. Vanek, you're employed by the
Probation Department?
A
Yes, I am.
Q And, how long have you been with the
Probation Department?
A
Twenty-six years.
Q Okay.
When an obligor is picked up on a Failure to Appear Warrant and that
person is held, it's my understanding that it's -- the hearings are held twice
a month before a judge, is that correct?
A
That's correct, that's correct.
Q Is that the first and third or second and
fourth Thursday?
A
Second and fourth Thursday.
Q So, if a defendant were picked up -- if
the
hearings were today at let's say
nine o'clock in the morning, and an obligor was picked up this afternoon, it's
possible that that obligor wouldn't see a judge for 14 days?
A
That's correct.
Q Is that correct?
A
Um-hum.
Q Okay.
And, you have video conferences on the --
A
Conferencing --
Q -- first and third Thursday?
A
First and third of each month.
Q What does that entail?
A
We have an investigator from the bench warrant, they appear and they ask
the obligor a series of questions. We
have a form here with all the questions on it if you need to know the
questions.
Q That's just a dialogue between somebody
from probation and the obligor, correct?
A Yes.
Q Okay.
Now, when the obligor who's picked up this afternoon is not going to
have that hearing for two weeks, when that person goes before the judge, that
hearing is in the context of why didn't you appear, and then I guess there's a
review of their ability to pay the child support amount?
Q So, it's really two-fold; why didn't you
come to court, and then there is, I guess, an Ability to Pay Hearing?
A Um-hum.
Q Is that correct?
A
I would say so, yes.
Q Okay.
All right. Do you have any
questions because she's a -- Ms. Vanek has established what I thought was the
case, and just so that you know, my concern is having an obligor sit for two
weeks without going before a judge.
When that -- let me ask you this -- when the failure to appear person is
picked up, and they have that hearing in two weeks, is that person reviewed
again two weeks later?
A
The obligor is picked up --
Q The obligor is picked up --
A
We have the video conferencing before he --
Q Well, let's assume he's picked up, there's
a hearing today -- hearings are today.
Let's assume that we're having hearings the -- what's the date today --
this is the second Friday of the month?
UNIDENTIFIED
SPEAKER: The eleventh.
Q Today's the eleventh. It's the second Friday of the month. Let's assume that in Mercer County you have
hearings the second and fourth Friday of the month, and we've now had our
hearing for those individuals who were
entitled to hearings, but we've
picked up somebody this afternoon who failed to appear --
A
Um-hum.
Q -- on a requirement to come to court. They're not going to have -- go before a
judge for two weeks, correct?
A
That's correct.
Q Okay.
Now, they're going to have their video conference next week --
A
Right.
Q -- with the Probation Department, and the
purpose of that is to update information?
A
Yes.
Q -- so, that you can then provide
information to the court when you go before the judge?
A
Correct.
Q Okay.
Now, you -- this person's had their hearing two weeks from now, which is
the 25th.
A
Um-hum.
Q Is that person going to be seen
again? When is that person going to be
seen again?
A
If the person is remanded?
Q Yes.
A
In two weeks.
Q In two weeks -- so the first hearing
potentially is two weeks, and then the next hearing is two weeks. Okay.
And, how do we know whether those
people are being reviewed in two weeks?
There's a representation that those people are not being reviewed.
A
We keep a tracking record of everyone that has appeared in court and if
they're remanded. Everything's kept on
a data base.
Q Okay.
And, are there defendants who are picked up -- excuse me, please -- I
don't want -- not you. You're pointing,
you're talking -- no talking -- no pointing, no talking. Be seated.
Now, I lost where I am.
MR.
DAVIS: You were asking about how long
they're held with prior -- in between reviews, Judge.
THE
COURT: All right, that's right.
Q Now, are there individual obligors who are
picked up and have detainers for other things?
A
Yes, there are.
Q Okay.
And, is there a different standard for review for those individuals?
A
Yes, there are.
Q Okay.
And, if a person -- if all the other detainers are taken care of, is
there a way that you know so you can bring that person to court?
A
Yes. The Bench Warrant
Supervisor, Nancy Desaw, keeps in close contact with the jail.
Q So, she would know when a person is being
released
--
A
Right.
Q -- or when they're eligible for release?
A
Um-hum.
Q Is that correct?
A
Definitely, yes.
Q All right. Do you have any questions of Ms. Vanek?
MR.
DAVIS: Judge, briefly.
CROSS EXAMINATION BY MR. DAVIS:
Q You indicated that you've worked for
Probation for 26 years?
A
Um-hum.
THE
COURT: You're going to have to say yes
or no.
A
Oh, I'm sorry. Yes.
Q How long -- what's your capacity been for
26 years, have you been in the same position?
A
No. I started as an
investigator, promoted to probation officer, to senior probation officer, to
supervising probation officer, to assistant chief.
Q Okay.
So, you're now the assistant chief?
A
Um-hum. In child support, yes.
Q Okay.
Now, you've testified that people are reviewed every two weeks?
Q Let me ask you this. Do you personally attend the hearings for
judges -- set release amounts for child support violators?
A
Do I personally attend? No, I do
not.
Q Okay.
A
We have a court liaison that attends the hearings.
Q Okay.
Then, what's the basis of your knowledge that they're reviewed every two
weeks after they're remanded to the jail?
A
The basis of my knowledge is I oversee the entire division, and I meet
with my supervisors on a monthly basis, and we go over procedures.
Q So, it's just from a procedural
standpoint, it isn't that you see orders in individual cases? That's not within --
A
Do I see orders in individual cases?
No, I do not.
Q Okay.
How many hearings would you estimate have occurred, how many child
support enforcement hearings where somebody was remanded to the jail in the --
say in the time that you've been in your present position?
THE COURT: Let's do it on a -- how many child support
hearings are held every month?
THE
WITNESS: Just for the -- you mean jail
cases, correct?
THE
WITNESS: We're speaking of --
THE
COURT: No, all enforcement hearings.
THE
WITNESS: All enforcement hearings?
THE
COURT: All enforcement hearings?
THE
WITNESS: There's 350 a month just for
enforcement hearings, and then with the jail cases vary. And, they can be --
THE
COURT: So, 350 a month, so there's over
say about four or 5,000 a year?
THE
WITNESS: Um-hum.
THE
COURT: Is that correct?
THE
WITNESS: Yes, that's correct.
Q And, how many of those are jail cases?
A
Jail cases, I'd say approximately about 15 a hearing, so maybe 30 a
month. Does that sound correct to you,
approximately?
MS.
DESAW: In some instances.
A
In some instances -- it varies.
MS.
DESAW: It varies.
THE
COURT: About 30 a month? All right.
THE
WITNESS: It varies.
THE
COURT: So, maybe 500 a year?
THE
WITNESS: Yeah.
THE
COURT: Four or 500 a year? All right.
Q In those jail cases, does each of the
defendants
-- are they asked how much of a
release amount can you pay?
A
The judge asks --
Q They are asked that?
A
I believe so.
MS.
DESAW: Excuse me -- yes --
THE
COURT: I don't -- no, no. They don't -- they can't testify. She's not at the hearings. How does she know what the judge might --
and I want to go -- my question was about the two weeks. I wanted to verify the two weeks. I don't want to get too far from this.
Q Would you be -- let me ask you one other question before I ask
you that one. You said that a data base
is maintained by probation?
A
Um-hum. That's correct.
Q And, is that a -- do you know whether or
not that's a duty that's imposed on probation by statute or by the
Administrative Office of the Courts?
Who has determined that probation --
A
We have prepared that on our own just as a tracking system.
Q And, according to this tracking system
somebody is flagged every two weeks and brought back to court if they're being
held solely on a child support warrant?
A
We try to --
Q Or -- I'm sorry, on an inability to pay a
release
amount?
A
We check our -- yes, we check the cases every two weeks to make sure,
you know, if they're still in there, you know, what the status is of the case
--
Q And, how many people are --
A
-- and update our records.
Q If you know, approximately how many people
are in the jail right now as -- who
were not able or have not paid the release amount that was set?
A
Nancy would know that. I do not
know that amount.
THE
COURT: I'm not going to allow
that. Quite frankly, I called her for a
very limited purpose and if you want to question her with reference to the two
weeks or the review that's fine. I
don't want to go beyond. I've got a
full motion calendar this morning. Do
you have any other questions with her with reference to the issues that I
raised, with reference to the two weeks and the review?
Q Would you be surprised to hear that Judge
Council told somebody that he was going to leave them in for six months if they
didn't pay $10,000?
THE
COURT: That's absolutely inappropriate
to ask this witness that question.
Q Okay.
Have you ever heard of the court -- does the court always follow the
two-week remand rule, or do judges sometimes set their own?
A
No, we follow that.
Q And, you have no knowledge of anybody ever
being sent for six months?
A No.
THE
COURT: They may have been held, but
they've got other detainers?
THE WITNESS: Yes.
Q Without other detainers, with absolutely
nothing else holding them?
A
Not to my knowledge.
Q How -- what is the longest that you've
ever heard of a person being kept in a jail for failure to pay a release
amount?
A
Six weeks, the longest -- that's what I've heard.
THE
COURT: Six weeks? All right.
Q Not 73 days -- you've never heard of --
THE
COURT: All right.
MR.
DAVIS: I'm sorry, Judge.
THE
COURT: Once again, I don't want to go
-- all right. Thank you, thank you. All right.
Anything else from the attorney general's position?
MS.
STOOP: Excuse me.
THE
COURT: You were talking about the
class. I had asked you about the --
your response to a 72 hour rule that would require probation to bring a person
before the
court within 72 hours rather than
two weeks and having other reviews for two weeks. You've now had the benefit of hearing some review of procedures
from Mercer County. Anything you want
to add to what you indicated before?
MS.
STOOP: No, I don't think so, Your
Honor. I think I would just reiterate
that a reasonable period, I think, is understandable based on what Your Honor
has said. I think it's just a problem
determining what a reasonable time period would be based on logistical problems
as much as anything else, Your Honor.
THE
COURT: All right.
MR.
DAVIS: Judge, I would like to briefly
close if I have that opportunity?
THE
COURT: Sure, absolutely.
MR.
DAVIS: First, Judge, if I can inquire
-- is Your Honor certifying the defendant class if you're going to impose the
72 hour rule on judges across the State?
THE
COURT: If I impose a 72 hour rule, that
certainly would impact Monmouth County, Ocean County, and Mercer County.
MR.
DAVIS: Judge, are people in Essex
County less worthy or do they have less rights?
THE
COURT: Well, to the extent that this --
if I issue a written opinion that's published, it -- I don't know the impact on
other counties, quite frankly.
MR.
DAVIS: Judge, at least as to class
certification, I would ask that Your Honor order that probation produce a list
of how many people are presently in the jail.
I think that that impacts directly on whether or not there is sufficient
numerosity if that's what Your Honor is denying defendant class status on.
THE
COURT: You've -- go on.
MS.
STOOP: I would object, Your Honor. As I tried to point out earlier, the
defendant class cannot be certified because they are not the correct plaintiff
-- I mean -- I'm sorry, the correct defendant in this. The named defendants, the five judges who
are named here, represent only three counties in the State, and they are not
the policy makers for the judicial system in the State of New Jersey. They are inappropriate defendants for the
relief that Mr. Davis is seeking.
MR.
DAVIS: Judge, if I may very briefly --
there is no --
THE
COURT: And all of them had Ability to
Pay Hearings. The representation or
challenge by counsel is that the judge didn't handle the hearing properly.
MS.
STOOP: Correct. He is only challenging the adequacy of --
THE
COURT: Of the findings --
MS.
STOOP: -- these five judges, and that
is far
from what is required for a class
certification.
MR.
DAVIS: Judge, initially, if I can
address --
THE
COURT: Anything further before --
MR.
DAVIS: Yes, Judge, I'll --
THE
COURT: I can give you about three
minutes, and I've got to move on.
MR.
DAVIS: I'll do this as quickly as
possible, Judge. I don't want to give
the transcriber a nightmare, though.
Judges Locascio and Cavanagh did not commit any acts as to the list of
plaintiffs that committed the acts as to the plaintiff class. There's transcripts that demonstrate
that. As to whether the AOC or the
judges are responsible and are the proper defendants, it is -- the duty is on
the judges. The duty is on the
judiciary to hold these hearings correctly and to not violate the civil rights
of the obligors that come before them.
Minors, Judge, have civil rights.
They can't contract, they can't sue in a contract, but there are plenty
of cases all the way up to the United States Supreme Court -- I'm sorry, I
didn't write the cite down -- but the black arm bands during the Vietnam War,
that was a case that was brought by minors to the United States Supreme Court
in their own name. It's only in a
contract action that you have to do it through an adult.
Judge, let
me finish -- first of all, I know right now unless they were released yesterday
at their hearings,
Samuel Tucker and James Pool are two
people right now in the jail with multi-thousand dollar release amounts who
don't have it. I don't know which judge
reviewed them -- I guess I'm going from here to the --
THE
COURT: They may have been -- who's to
say that the judge didn't properly conduct an Ability to Pay Hearing?
MR.
DAVIS: Judge, finally, let me close
with this, and I realize it's a loaded statement, if I were to show you a dozen
transcripts from around the State where judges were saying to people, you're
African-American so I'm going to throw you in jail, how many of those would you
need before you would say, this is a violation --
THE
COURT: That's totally -- why are you
saying that? There's no --
MR.
DAVIS: Because it is a violation of
civil rights.
THE
COURT: But, there's no evidence that
that occurred in this case.
MR.
DAVIS: Judge --
THE
COURT: If you want to argue a
particular premise or proposition in this courtroom --
MR.
DAVIS: Yes --
THE
COURT: for -- in this particular case,
don't give me examples that are not part of the record.
MR.
DAVIS: Judge, it's a perfect analogy.
THE
COURT: It's not a perfect analogy.
MR.
DAVIS: I'm not saying that that's what
happened, although ten of the 11 plaintiffs do happen to be African-American,
that' not what I'm -- the premise that I'm bringing now, that's for a later
day. But, what I'm saying, Judge, is if
I show you egregious violations of civil rights from the trial court, how many
do you need before you decide it's a class action, Judge?
THE
COURT: All right. Mr. Davis, thank you. Thank you.
All right, let me indicate for the record, I think I'm going to -- I'm
sort of tempted to issue an opinion today from the bench, but there have been a
number of issues raised, and I think I want to take some time, outline the
arguments that have been made, particularly the class. I'm going to give you my tentative thoughts
right now.
As I
indicated before, I am not satisfied that there's been a proper showing of
class certification for a host of reasons.
There's no showing, really, of commonality. Each case is fact sensitive and different. There's not showing of numerosity. There are thousands and thousands of child
support hearings every year. The other
standards that are articulated in 4:32, I can mention them now, but I've got a
whole courtroom of people, and I've got
to be done today by 12:30 and it's
now a quarter after ten. But in a
written opinion I will outline the four factors in 4:32 and the three
additional factors that are the second part of the rule because I'm not
satisfied that there is a class as to the plaintiff or the defendant.
With
reference to the court reviewing these particular cases and making any
findings, I have some concerns from some of the transcripts, and as a result of
that I think there's some propriety of the Court ordering that the persons who are
plaintiffs in these cases who have not filed an appeal because of the question
as to whether they had a hearing within 72 hours -- order that those cases be
reviewed. I am not going to serve as an
Appellate Court in this case.
The one
issue that's been raised by counsel that does cause me some concern is the
possibility of an obligor who is picked up in Mercer County on a day that
hearings have been held, and that person is picked up after these hearings and
would have to wait for 14 days. My
initial thoughts are that anybody picked up on a Failure to Appear Warrant
should go before a judge within 72 hours.
That judge should address the issue of the failure to appear and the
ability to pay and go through all the standards that are part of established
case law under Pierce v. Pierce and Saltzman v. Saltzman, and
that those obligors be subject to
another review every two weeks that
they remain incarcerated. Now, I don't
know what other counties do, but my intention would be to write an opinion and
to distribute it to counsel and probably submit this for publication because I
think it's an issue that's significant enough, that's important enough that
every obligor have the right to have a hearing within 72 hours. And, I would also indicate that I will leave
the record open until Wednesday, so if either Mr. Davis or Ms. Stoop wants to
supplement the record and convince me as to any issue which is before the
Court, I will give you until Wednesday.
I would generally give you longer, but quite frankly I think it's
important to move this matter forward rather than to delay. So, I will give you until Wednesday. My hope would be to issue a written opinion
probably on Friday or perhaps the following Monday. All right.
MR.
DAVIS: Judge, I want the Court to be
aware that I am going to seek emergent review, obviously not now until next
Wednesday because it's now become interlocutory -- but before
THE
COURT: You can -- you can file whatever
relief you want.
MR.
DAVIS: I understand, Judge. I just -- I wanted the Court to be aware of
that before you wrote a written opinion that might be subject to --
THE
COURT: Mr. Davis, you take whatever
action you think is appropriate.
MR.
DAVIS: Of course, Judge.
THE
COURT: I'm going to make my findings
and put them in writing under Rule 1:7-4 --
MR.
DAVIS: Thank you, Judge.
THE
COURT: If you want to file an appeal or
take emergent relief, certainly you have the right to do that.
MR.
DAVIS: Of course, Judge.
THE
COURT: Thank you.
MS.
STOOP: Thank you, Your Honor.
* * * * *
C E R T I
F I C A T I O N
I, DENISE
M. O'DONNELL, the assigned transcriber, do hereby certify the foregoing
transcript of proceedings on tape number CI7-02-LRF, index number from 01 to
4657, is prepared in full compliance with the current Transcript Format for
Judicial Proceedings and is a true and accurate compressed transcript of the
proceedings as recorded, to the best of my ability.
_______________________________
DENISE M. O'DONNELL
Approved by:
_________________________________
JOHANNA LiMATO AOC # 179
J&J COURT TRANSCRIBERS, INC. Date: ______________________
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