SUPERIOR COURT OF NEW JERSEY
LAW DIVISION, CIVIL PART
MERCER COUNTY, NEW JERSEY
DOCKET NO. MER-L-406-03
A.D. #_______________________
ANNE PASQUA, RAY TOLBERT, )
AND MICHAEL ANTHONY, )
INDIVIDUALLY AND ON BEHALF)
OF ALL PERSONS SIMILARLY )
SITUATED, )
)
Plaintiffs, ) TRANSCRIPT
)
OF
v. ) ORAL ARGUMENT
)
HON. GERALD J. COUNCIL )
AND HON. F. LEE FORRESTER,)
ET ALS. )
Defendants.)
Place: Mercer County Courthouse
175 South Broad Street
Trenton, NJ 08650
Date: March 28, 2003
BEFORE:
THE HON. LINDA R. FEINBERG, J.S.C.
TRANSCRIPT ORDERED BY:
DAVID PERRY DAVIS, ESQ. (Law Offices of David Perry Davis)
APPEARANCES:
DAVID PERRY DAVIS, ESQ. (Law Offices of David Perry Davis)
Attorney for the Plaintiffs
DIANE M. LAMB, ESQ., Deputy Attorney General
Attorney for the Defendants
Transcriber, Gina M. Cermak
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, Bethea
I N D E X
PAGE
ARGUMENT
:
By Mr.
Davis 19
By Ms.
Lamb 28
By Mr.
Davis 33
By Ms.
Lamb 37
THE
COURT: This is the matter of Pasqua
versus Council, and theres a number of other plaintiffs and defendants. Its MER-L-406-03. Counsel, your appearance for the record.
MR.
DAVIS: Good morning, Judge. David Perry Davis on behalf of the putative
plaintiff class.
MS.
LAMB: Good morning, Your Honor. Diane Lamb, Deputy Attorney General on
behalf of the judicial defendants.
THE
COURT: Okay. Thank you. All
right. Im going to set forth the
procedural history on the record, its somewhat long so sit back and relax, and
try to articulate the arguments that have been raised by counsel, and then
provide the opportunity for argument.
This
matter comes before the Court by way of an order to show cause. All parties have been noticed and opposition
has been filed. The matter was
originally filed in the U.S. District Court for the District of New Jersey in
June of 2000. The federal complaint was
amended in August of the same year and defendants filed a motion to dismiss on
the grounds of judicial immunity in September of 2000. Plaintiffs filed a cross motion seeking a
preliminary injunction and class certification in September of 2000 and opposed
the immunity defense asserted by defendants.
Defendants
filed a reply raising abstention pursuant to Younger v. Harris in
October of 2000. And plaintiffs
responded to that in October of 2000 as well.
Oral argument was heard before Judge Garrett Brown on November 16th of
2000. A written decision was issued
granting the defendants abstention application in March of 2001. An application for reconsideration was filed
in March of 2001, and a written decision was issued in June of 2001 denying the
application for reconsideration.
A
notice of appeal to the U.S. Court of Appeals for the Third Circuit was filed
in June of 2001 and there were briefs filed by both sides. And oral argument was heard on April 24th of
2002. On January 17th of 2003 the Third
Circuit affirmed the abstention ruling reasoning that as a matter of first
impression the child support enforcement system is a comprehensive and fluid
system designed to address the ever-present and ever-changing realities of
child support orders and must be viewed as a whole rather than as individual discrete
hearings and that plaintiffs had not demonstrated that the State was resistant
to adjudicating that Constitutional issue.
To the limited extent that the Third Circuit addressed the merits, the
Court held that it was confident that any Constitutional challenge to State
Court practice would receive proper consideration by the New Jersey Courts.
This
complaint, the complaint in lieu of prerogative writ, seeking preliminary
restraint and an order to show cause was filed in this State Court on February
10th of 2003. On February 24th of 2003,
and I believe we had a telephonic conference, the Court actually signed an
order denying the restraints requested by the plaintiffs and discussed with
counsel the issue of the filing of briefs.
And, in fact, the Court entered a case management order establishing a
briefing schedule. I believe there was
one request to carry that date by the attorney general, which I gladly
granted. And as a result I also granted
counsel for the plaintiff an opportunity to submit a reply. I think it was submitted on Wednesday and
the matter was scheduled for oral argument today. Plaintiffs are also seeking class certification pursuant to Rule
4:32-1.
Just as
background, Anne Pasqua, whose the primary plaintiff, lost custody of her two
children in 1999. She was required to
pay child support in the amount of $160 per week. And by 2000 she was in arrears and a warrant was issued. She was apprehended as a result of a raid
for child support obligors and brought before Judge Forrester, who sits in
Mercer County, and who at that time was the presiding judge in April of the
same year. There was ultimately a
determination by Judge Forrester that she should be incarcerated until she was
able to, in fact, come up with $3,400 in arrears. She apparently was released two weeks later not having made any
payments. And shortly thereafter the
Community Health Law Project, on her behalf, filed a motion to reduce
support. That application was granted
and she was ordered to pay $5 per week.
In 2002 she apparently was committed for three months to the Trenton
Psychiatric Hospital. She currently
lives in Trenton in a shelter. And
according to the plaintiff, she remains unable to pay the child support
payment.
Ray
Tolbert is the father of six children by three different mothers. As a result, he also owes child
support. There was also a hearing
before Judge Council. And Judge Council
ordered that Mr. Tolbert be incarcerated for failure to pay. He ordered him to pay a purge figure of
$10,000. Mr. Tolbert apparently
testified he only had $1,500.
The
other individual who is specifically named is Michael Anthony who is the father
of two children and under child support orders. He was brought again before Judge Council in May of 2000. He was finally released after being
incarcerated and he remains in arrears and subject to arrest if he misses
payments.
Plaintiffs
argue that the issue before the Court is a Constitutional challenge to the
procedure involved in Ability to Pay hearings.
Citing Lassiter v. Department of Social Services, 452 U.S. 18, a
Supreme Court decision in 1981, plaintiffs contend that the Supreme Court of
the United States declared that as a matter of due process under the
Fourteenth Amendment, no person should
be deprived of their fundamental Constitutional right to liberty unless they
are first notified of their right to counsel and given an opportunity to have
counsel appointed if they are indigent.
Plaintiff
further asserts that the test is not whether a State labels the proceeding
civil or criminal, but rather whether there is a potential loss of
liberty. Plaintiff submits that Lassiter,
albeit it a civil matter, established a bright-line rule that while due process
may require the appointment of counsel in certain types of matters, that no
indigent litigant should be compelled to attend a hearing where their liberty
is at stake unless they are represented by appointed counsel.
Plaintiffs
argue that an overwhelming majority of courts have applied the Lassiter
holding in the context of appointing counsel for indigent child support
obligors facing potential incarceration.
Plaintiff includes a list of many jurisdictions that as a result of
either state or federal litigation require the appointment of counsel. They include, and Im not going to list
them, a number of different states.
Plaintiff
submits that Florida and Massachusetts appoint attorneys, but not as a result
of litigation. In Florida, according to
the plaintiff, in spite of case law holding that the appointment of counsel is
not required, thats Andrews v. Walton, 428 South 2d. 663 of Florida, a
case in 1983. According to the
plaintiffs, the Office of the Public Defender, in fact, provides
representation. And plaintiff submits
that in the State of Massachusetts that counsel has always been appointed as a
matter of due process; although theres
no case law thats ever evolved out of that jurisdiction.
Plaintiffs
contend that a small minority of states have held that the Fourteenth Amendment
does not require the appointment of counsel for indigent in child support
hearings reasoning that if the litigant is indigent, and therefore unable to
comply, they will not be incarcerated, and as a result no liberty is at
stake. No liberty interest. And therefore, the Lassiter
presumption does not apply. According
to the plaintiff notably the states that have accepted these reasonings -- this
reasoning tends to be extremely conservative.
Plaintiffs argue that the overwhelming majority of states and that every
appellate court that has addressed the issue has rejected the reasoning in Andrews. And that the critical decision is whether or
not the persons liberty is at stake.
Plaintiffs
also argue that this is an area of law thats evolving almost -- very rapidly
and cites that although in 1974 in New Hampshire, in the Duvale case,
where the Court ruled that counsel was not required, that in the last -- recent
history, the supreme court has now taken a different position and ruled that
the right to counsel does apply.
Counsel
also cites the McBride case which is a North Carolina case that
overruled a prior case, the Jolly case.
McBride took the position that the language and reasoning in Andrews
was really -- really faulty inasmuch as the party who faces incarceration and a
loss of liberty should be appointed counsel.
The
argument goes on by the plaintiff. They
basically argue that the recent case by the Court in D.L. which dealt
with the designation of a sexually
violent predator, under the Sexually Violent Predator Act, where the
Court decided that the appointment of counsel was appropriate in those kinds of
proceedings. Plaintiff argues that that
case is really relevant because it dealt with the issue of a civil proceeding
in that particular case. And argues
that particular case.
Defendants
have filed a motion to dismiss and argue, basically, the Scalchi case,
347 N.J. Super. 493 which is an Appellate Division case in 2002. In that particular case the Appellate
Division decided that a child support obligor facing incarceration, although
entitled to an Ability to Pay hearing, did not have the right to the
appointment of counsel under the Sixth Amendment. Defendants argue that that particular case is controlling in this
particular jurisdiction. They also cite
the Andrews v. Walton case. And
they also indicate in their judgment that In the Matter of Civil Commitment
of D.L., 351 N.J. Super. 77, an active case in 2003, that case is clearly
distinguishable because it involved actually a commitment proceeding which is
different than this case. Defendants
argue that this is not a punitive proceeding; this is a proceeding under 1:10-3
to enforce litigants rights. Its not
punitive; its coercive. The party who
is ultimately held has the keys to their own cell and they need to do is to pay
the child support amount and they will be released.
It can
be my tentative thoughts on this, I have some problems with the notion of
classifying this as a class action for a couple of reasons. Number one, with regard to the numerosity,
in looking at the data in Mercer County it appears that there are approximately
six obligors who are apprehended per week on bench warrants. Under the 72-hour hearing rule those
hearings are held within 72 hours. It
appears that presently, from September of 2002 to February of 2003, of those,
approximately six obligors who are apprehended on warrants per week, less then
about 20 percent are remanded. And of
course its impossible to determine of the 20 percent who are remanded, those
individuals who would have been entitled to the appointment of counsel. So its a relatively small number.
The
other issue is that I plan on making a decision in this case within the next
seven to 10 days. And if this matter
was classified as a class action theres all kinds of procedural mechanisms
that would have to be, in fact, put in place.
And that the class action is really an inferior method of
resolution. This is not a case that involves
discovery, monetary damages, different theories of liability. This is a sole legal issue. Let me talk about the legal issue.
I read Scalchi. And Scalchi is very clear on the
Sixth Amendment. I think this case is
broader than the Sixth Amendment. I
think theres -- I think theres a legitimate Fourteenth Amendment issue here. I really do. Ive looked at every case I think thats ever been published in
this -- in the United States. Ive done
a national search. Ive also looked at
all the federal cases. Every federal
case I could find. But more
significantly, I looked at Lassiter.
Lassiter is a 1981 decision by the U.S. Supreme Court. It dealt with the termination of parental
rights. But Lassiter -- in Scalchi
they dont mention Lassiter. In
fact, theres not one reference to the due process clause. All they mentioned is the Sixth
Amendment. But in Lassiter they
talk about the Fourteenth Amendment.
That every law review article in federal case and state case says this
is not a Sixth Amendment issue when youre talking about the right of an
appointment of an attorney in a child support case.
In Lassiter
you dont even get to that three part.
Theres that three part test in Lassiter. That youve got to look at the interest and
so forth. You dont get to that if what
the person that the alleged condemner, or the person whose facing some loss is
facing physical liberty loss. You never
get to that three part test. You only
get to that three part test if its something other than physical liberty that
is potentially in jeopardy. But Lassiter
-- I mean, Lassiter says that if youre facing physical loss of liberty
youre entitled to the appointment of counsel if youre indigent. And they -- and the distinction between
civil and criminal is just a fiction.
Now,
when I read Scalchi I said to myself, how in the world can I reach a
different decision? I mean, Im not an
appellate court. Im a trial
court. And when I first looked at it I
said this is a no brainer; until I started to do the research. And I said the only problem with Scalchi
is that they didnt go far enough. It
was a pro se litigant. The Appellate
Division did a great job on the Sixth Amendment. I cant disagree with anything they said on the Sixth
Amendment. There is no Sixth Amendment
right to counsel in a Child Support Ability to Pay hearing. But I think -- I think theres a legitimate
right to the appointment of counsel for
an indigent on the Fourteenth Amendment.
Now,
this has incredible implications. I
understand that. I was a family part
judge for five years. I think New
Jersey has the finest judicial system in the country. I am proud to be part of this.
Its going to have -- it would have incredible implications. But I cant think about that. Thats -- you know theres -- whats the
case that I read? The Russell versus --
MR.
DAVIS: Armitage (phonetic).
THE
COURT: Right. What is it? Russell v.
Armitage? Thats a great case
because in that case they talk about -- they actually talk about who is going
to represent these people. You know, is
it going to be the public defender? I
remember when I was a municipal court judge and we, of course, Argersinger
v. Hamlin. And you know, the Rodriguez
case -- Rosenblatt case. And,
you know if theres a consequence of magnitude youve got to appoint a
lawyer. And there was a big discussion
about whether the public defenders should, in fact, represent these municipal
defendants. And the public defender
declined. I dont know if that was ever
litigated. But if it was Im sure the
State would have lost.
But in
that Armitage case they raised that issue about the public
defender. And the Court affirmed the
notion that the public defender didnt have to represent these child support
obligors. So is it the private bar and
how does that happen because its so quick?
You see, I dont think youre entitled -- Im going to give you plenty
of opportunity to argue, Im just sort of going through my thought
process. I dont think that youre
entitled to a lawyer -- theres two ways that an obligor gets picked up: one is that they dont appear at a child
support enforcement hearing under 5:75.
And I know the process having been presiding judge of family. I know the process well. They send a notice to the obligor and the
obligor is directed to contact probation to try to the resolve the
problem. They try to do it
informally. And if the person doesnt
respond, and theres no amicable resolution, then they would schedule it for an
enforcement hearing before a hearing officer.
And the hearing officers resolve most of these cases.
So when
I said in Leonard v. Blackburn that there are 50,000 hearings, I mean
thats -- hearing officers resolve, luckily, most of those cases. But if a person doesnt appear before the
hearing officer, and were satisfied that service has been made -- Ive always
said, you know, make sure that before you issue a warrant that youre satisfied
that service has been made. But service
has been made, then we issue a warrant.
And I dont think you have to appoint -- if the guy is picked up on
Tuesday night or Saturday morning, you dont have to appoint a lawyer before
you put them in jail. They failed to
appear. And theyre told, you know -- I
think the point where the attorney comes in is at the ability to pay
hearing. I mean, thats where it is.
The
other way that somebody gets a warrant issued is if the person comes in for the
enforcement hearing and theres actually a resolution. The hearing officer says you have to pay
$500 within two weeks or a warrant will issue and they dont pay that and then
theyre picked up. I dont think they
have to -- theres no entitled to a lawyer at the time theyre picked up. Once again, its at the ability to pay
hearing. And how do you do that
logistically? I mean, the private bar
is so -- Im not so sure its going to be that many cases because I think once
maybe judges understand that you have to appoint counsel that there might be
more resolutions that are reached between -- I mean, what I used to do in
municipal court because I knew I had to appoint counsel if I was going to put somebody
in jail, I would say the prosecutor, is this the kind of case where you would
be asking for a jail term? And if the
prosecutor said yes Id make sure that defendant had a lawyer. And if the prosecutor said no, this is a
first offense, you know, were not going to ask for jail then fine I dont
appoint a lawyer. It might encourage
greater communication and resolution of these cases. And I actually asked my -- the probation person in Mercer who
handles child support matters, when this person is picked up do you attempt to
negotiate something? And the answer is
no. And apparently it varies
statewide. They dont work on weekends,
so if somebody is picked up on Friday it would be nice if probation could see
if they could work something out. I
always used to say to probation, you know, talk to the person. But -- and everything is handled differently
statewide. I understand the
implications to the bar.
I will
tell you that in thinking about this
-- what
I will tell you -- we have domestic violence contempt cases where defendants
are picked upon domestic violence contempt and we lock them up and then we have
a hearing. And what was happening in
Mercer County because if the county has to hold these people at like $50 or $75
a day, they want to get them -- they want to get them in court. So -- and when we appoint a
lawyer
it takes time. So what the county did
was they hired somebody. They have one
of their welfare lawyers who part-time does these hearings. Well, maybe part-time thats what they do this
too. And then whats the standard in
terms of the appointment of counsel? I
assume it would be the same thing under the 5a. The 5a standards would have to apply. It would probably be the 5a standards.
But I
dont think theres any way to get around Lassiter. I dont -- you dont even get to that three
part test if liberty is at stake. I
think hes got a legitimate Fourteenth Amendment argument. And I dont think Scalchi is
controlling because Scalchi, although it is a very good law and very
well written as to the Sixth Amendment, it did not explore the Fourteenth
Amendment.
Anyway
those are my initial feelings, just to let you know. I know the consequences.
I know this is a big case. And
Im not going to keep it on my desk too long.
And thats why I have serious concerns about a class because Id like to
resolve this, maybe even within the next three or four days. Counsel?
MR.
DAVIS: Judge, briefly, on the class
certification issue. My concern is that
the other cases that have addressed this, and as Your Honor indicated there are
many, many of them, from the federal circuit courts of appeal and from all
across the country, in all of those cases they granted class certification.
THE
COURT: Yes, but theyre not -- they
dont sit in my court. I have a clean
desk syndrome. I get these cases in and
out very quick. I noticed some of these
cases took a year and a half.
MR.
DAVIS: But, Judge, this one -- I mean,
if you look at -- since it was originally filed in the district courts, its
been pending almost three years.
THE
COURT: Yes. Well --
MR.
DAVIS: The issue thats been --
THE
COURT: Yes. But then theres notice, and they youve got to organize it, the
judicial management and all of that.
And whether thats a superior means of resolution. I dont even know if you meet the new
veracity requirements. All of the other
cases I looked at were pretty significant.
I was surprised in Mercer County that we only -- on average from
September of 2002 to February of 03, on average, six people a week and less
than 20 percent of them get remanded.
And I dont know what percentage of them would be entitled to
counsel. So its not a big number. But a lot -- theres a lot of hearings, but
not specifically with this issue.
MR.
DAVIS: Judge, I dont have direct
knowledge of exactly how many people are in the jails, but the last time I
checked, in February, I think there were five or six people who were in the
jail for child support and thats just through somebody I know who works
there. Thats not --
THE
COURT: Yes, I dont know how many. But I dont know over what period of time
and I dont know how many of them would have qualified for the appointment of
counsel.
MR.
DAVIS: If there were five at any one
time, times 21 counties, that would be 100 people that were at issue here. My concern, Judge, is that the matter be
addressed. As Your Honor has indicated
Im obviously not going to argue anything about your holding from the law. I think theyre whats mandated. I know it may not be whats popular but its
what mandated, I believe, by Lassiter and by In re D.L.. But as -- what if we dont do this as a
class action if Your Honor -- and I would assume as the assignment judge that
you have the authority to curtail any of the usual case management requirements
that would be involved in a class action suit.
And --
THE
COURT: I dont know about that.
MR.
DAVIS: -- my concern arises from Leonard
v. Blackburn where Your Honor did not grant class certification.
THE
COURT: Yes, but then they immediately
the -- throughout the state -- I mean, that flew like that. My decision came out and boom. I mean like immediately. There was like a working group to study to
child support, Judge Williams issued a directive requiring these hearings was
in 72 hours. I mean, I never saw
anything happen in the judiciary so fast.
MR.
DAVIS: Judge ---
THE
COURT: Well, I imagine what would
happen here, quite frankly, is that if I grant this relief its going to be
appealed by the State. And I dont know
-- I dont know, there might be a stay.
The Appellate Division might issue -- I dont know. This is not a case where theres damages or
theres discovery. Its -- in fact, I
had a case not too long ago involving fees for gun permits. They were charging -- they were charging
fees for mental health exams and this -- really if you read the statute we
really couldnt charge the fees. Some
counties were charging, some were not.
And I had a lot. I had like
12,000 people. But it was a single
legal issue that I was going to resolve like that. And the case won up on appeal and it was affirmed as the class
certification. If -- thats the
problem. and judicial management is a
consideration whether this is a superior method of resolution. I dont disagree with you on the law on the
Fourteenth Amendment at all.
MR.
DAVIS: Judge, I dont have any, you
know, emotional attachment to class certification. I want to see the issue resolved. My concern -- from what Your Honor just indicated concerning the
AOC, I attached as Exhibit A to my reply a number of transcripts which are from
February -- from last month, February of 2003, over a year -- over 14 months --
13 months after the AOC issued its directive in these transcripts. And they are from --
THE
COURT: Yes, but that -- my decision
dealt with the 72 hour hearing.
MR.
DAVIS: In the transcripts, Judge,
theres three week recalls being ordered.
Theres four week recalls.
Theres indications that the people who are first time coming before the
Court have been in for longer than 72 hours.
This is one of -- this Judge, Judge Ferencz, is one of the -- I appear
before him regularly. Hes an excellent
Judge. Hes a member --
THE
COURT: I --
MR.
DAVIS: -- I believe, of the child
support committee.
THE
COURT: Now, see they -- when they
initially bring them in then theres an issue as to when they have to bring
them back. But theyre holding these
here, Ill tell you, Ive been told theyre holding them within 72 hours like
that. In fact, the worst offender, I
understand, used to be Mercer. And
weve resolved that.
MR.
DAVIS: I think Monmouth, Judge -- I
think Monmouth has always been worse than Mercer --
THE
COURT: Well, see, now Ive talked --
MR.
DAVIS: -- just to stick up for my home
county.
THE
COURT: Ive talked to Judge Lawson in
Monmouth and Ive been told they bring them in generally within 24 hours.
MR.
DAVIS: Okay.
THE
COURT: Yes. And with regard to the ability to pay, you know, I can make a
decision about 72 hours. And I can make
a decision, if thats what I decide to do, that youre entitled to the
appointment of counsel if you meet the indigentcy (sic) standards. And youre going to go to jail because, you
know. The judge may say to probation
person, are you requesting jail time?
And they may say no and just work -- you know, working something out at
a reduced rate. I think what happens is
sometimes the entire amount is required and theres no effort to modify that
amount. I can decide that youre
entitled to the appointment of counsel, but I can never monitor whether the
judge properly conducts the ability to pay hearing. Thats something that no matter what I do; if I had all the power
in the world. And I think the judges
are, I think, much more sensitive to those issues today than theyve ever
been. And theres a wonderful training
thats offered to judges at a number of different levels. But your argument about that there might be
a case where a judge didnt do that, youre always going to have to appeal
that. Thats your only relief. Theres nothing anybody can do thats ever
going to make the system perfect.
MR.
DAVIS: Judge, again, Im coming back to
whether or not class action is the best way to deal with it. And again, if theres another way to deal
with it, if theres some sort of a binding directive on the AOC perhaps, then
we wouldnt have to certify it a class.
But Your Honor did make a decision and the AOC did issue a directive. And the directive is not always being
followed, even by the top family court judges in this State at times. So if theres another way to do it -- I
certainly dont have any attachment to --
THE
COURT: Well, I dont think theres
anything more important than a directive from Director Williams. And if you know theres a place thats not
complying with that. And if you called
him on the phone -- let me tell you something, this is not for negotiation,
this is required. This is -- this is a
mandated policy. I think thered
probably be a civil rights claim. But I
dont want to go there. Thats a
separate issue. Regardless of whether
its classified as a class or not, if theres an appeal and theres a stay, you
know, this is -- I mean, theres a lot -- theres a bunch of logistical issues
that have to be resolved as well.
MR.
DAVIS: I understand, Judge. If this gets farmed out to the pro bono
pool, I understand Im not making myself very popular with attorneys, but --
THE
COURT: If I -- Yes, well, I think that
ultimately there might have to be a different way of handling it, just like the
domestic violence contempt cases.
MR.
DAVIS: And Im sure Your Honors
opinion that there wont be as many as the initial numbers would indicate. When you look at it and see there were
50,000 enforcement hearings, I dont think theres going to be 50,000 instances
in which counsel need to be appointed.
THE
COURT: Oh, God. Oh, no.
No. I mean, quite frankly, the
hearing officers are really trying to work this out. I think there would probably be a greater effort to work out
suitable arrangements. I mean, on the
other side of it theres a tremendous problem with child support and people not
paying. And, you know, a decision that
I may make with regard to the appointment of counsel, it doesnt in any way
diminish that significant problem. So,
you know, theres got to be way. But of
course theres no debtors prison. I
mean, you can only incarcerate somebody if they have the ability to pay. And thats the critical decision. And if the purge is $10,000 they may have
the ability to pay $500, they may not have the ability to pay the total
amount. And I would imagine that if I
made a decision about the appointment of counsel and if that was upheld on
appeal, that the institution would hopefully develop some methods to attempt to
resolve these child support matters.
And that probation would take an active role in that. Well, let me hear from the other side. I know what all your argument -- yes,
go on,
anything else?
MR.
DAVIS: Just minor, Judge. But Your
Honor
didnt even reference the Court rule which also, aside from Lassiter and
D.L. --
THE
COURT: Right.
MR.
DAVIS: -- that the Court rule already
exists. And I didnt realize this even
at the beginning at this litigation --
THE
COURT: Yes, Im --
MR.
DAVIS: -- but it kind of hit me like a
ton of bricks.
THE
COURT: Ill have counsel address
that. Im not sure that the
applicability to that rule to these particular kinds of cases, but Ill have
the A.G. respond to that. Counsel?
MS.
LAMB: Thank you, Your Honor. The State would respectfully disagree with the
Courts analysis of Scalchi. I
dont think Scalchi is as narrow as just the Sixth Amendment. In Scalchi the Court considers other
jurisdictions and it finds in McBride v. McBride, the North Carolina
case, that the Court has already discussed.
That case was based purely on the Fourteenth Amendment. So obviously the Scalchi court had to
have considered that because they considered the McBride case.
THE
COURT: It might have been in a brief, I
dont know. They dont talk about Lassiter
at all.
MS.
LAMB: I dont know they dont talk
about it.
THE
COURT: They dont talk about Lassiter
at all. And Lassiter is the
case. But see Lassiter -- Lassiter
says, unequivocally, that if the defendant faces a loss of liberty, the
Fourteenth Amendment requires the appointment of counsel, whether its a civil
or criminal matter. Lassiter was
a termination of parental rights case so they said it was a case by case basis,
but they used that three prong test. I
mean I read Lassiter to stand for the proposition that -- you know, this
is -- you know, somebody might say well then you have a money judgment and
somebody doesnt pay. But theres no
question you cant incarcerate someone for a money judgment order under Article
1, Paragraph 13. So you know, the
notion that this is going to get so big, I think, and theres an exception in
our court rules for -- under 1:10-3, theres an exception with regard to
incarcerating child support obligors.
So the first question I asked is, am I opening the entire box? And I dont think I am because I think the
box is pretty -- its already been defined.
But I cant get away from Lassiter.
MS.
LAMB: I just think that they had to
have considered the Fourteen Amendment.
I know its not in the opinion.
THE
COURT: Its not in it.
MS.
LAMB: But in Mastin v. Fellerhoff,
which is an Ohio case which the plaintiffs did cite to, the Court -- the
federal court said that the Ohio Supreme Court in deciding that there was no
Sixth Amendment right to counsel in civil contempt hearing. Also necessarily rejected the argument that
appointed counsel is required by the due process clause of the Fourteenth
Amendment as it is only through the due process clause that the Sixth Amendment
gets to the State.
THE
COURT: No, I understand that. I thought about that argument too. I thought about that argument too.
MS.
LAMB: But I think that would be our
position that Scalchi had to have considered the Fourteenth
Amendment. And had said that absent a direction
from the Supreme Court that were going to appoint counsel in these cases that
were not -- were not going to do that.
Theres no case law in New Jersey currently that allows for the
appointment of counsel in civil matters.
The only cases, and Scalchi cites to those cases, are in parental
rights, parental termination cases, or abuse and neglect cases under Title
9. And under those cases thats
appointed by statute. And so there is
no case law -- theres no -- theres never been an exception carved out for
child support obligors in this state.
And I dont think Scalchi is limited to the Sixth Amendment. I think they had to have considered the
Fourteenth Amendment they when made this -- they dont come right out and say
this is based on the Sixth Amendment.
And they dont come right out and say its based on the Fourteenth
Amendment. But they had to have
considered those.
THE
COURT: Ive been where youve
been. I know.
MR.
DAVIS: May I have two sentences, Judge?
THE
COURT: Yes, let me just have her
finish. Yes?
MS.
LAMB: Do you want me to address the
5:3-4?
THE
COURT: Yes.
MS.
LAMB: Okay.
THE
COURT: Yes.
MS.
LAMB: In that case it says where -- it
says that it will be appointed where its constitutionally, or theres a person
who is legally entitled to it. And once
again, we go back to there is no constitutional provision in this state, or
legal entitlement to counsel in these particular circumstances.
THE
COURT: All right. Okay.
have you given any thought to if you lost what -- how this -- that would
-- the issue would be handled?
MS.
LAMB: I have no idea. I think the public defenders office -- I
spoke to someone there just off, you know, not --
THE
COURT: Yes, they wouldnt get involved.
MS.
LAMB: They do not want to get involved
in it at all.
THE
COURT: Oh, no. They wouldnt get involved. No.
MS.
LAMB: And I -- honestly I dont know
how the pro bono -- a lot of these people are not family matters. I dont know even how much of a help that
turns out to be to people. So I dont
have any idea how this would be addressed.
THE
COURT: It would certainly be a
logistical nightmare. I understand
that.
MS.
LAMB: It certainly would be.
THE
COURT: I understand that. But you understand I cant consider that.
MS.
LAMB: I understand.
THE
COURT: Yes. Counsel?
MR.
DAVIS: Briefly, Judge. The text of Rule 5:3-4 doesnt say only
where its constitutionally required. I
had thumbed to it and then dropped it as I was standing up. Its pretty clear. It says that counsel must appointed in a family proceeding,
quote, If the matter may result in an institutional commitment or other
consequence of magnitude to any family member. That -- thats clear. Thats
to the point. Thats -- it doesnt just
say -- it goes on to say, or when required by the State or Federal Constitution
or by Constitution or whoever words it.
But the text of the rule, Insofar as it says shall be appointed if the
matter may result in an institutional commitment. And then the commentary indicates that, Its applicable to
juvenile delinquency actions as well as civil family actions. Since there is no specific provision made
for the representation by chapter 4 of --
THE
COURT: Where are you reading?
MR.
DAVIS: The commentary to Rule 5:3-4,
Judge.
THE
COURT: Yes. Which particular paragraph to the comment?
MR.
DAVIS: Oh, 5:3-4 -- subsection? Oh.
THE
COURT: Yes. Youre looking at the comments, right?
MR.
DAVIS: Judge, Im --
MS.
LAMB: Its on 17 -- 1959. Page.
THE
COURT: 1959. Okay, thats what Ill --
MS.
LAMB: That paragraph. That right there.
THE
COURT: Civil 2.2?
MS.
LAMB: Yes. But that --
THE
COURT: The -- to assign counsel is of
--
MS.
LAMB: Right. I was just going to point that out.
THE
COURT: Yes, it seems like its talking
about juveniles.
MS.
LAMB: I think so.
THE
COURT: Yes. Thats why when I first read that -- although, I have to say that
5:3-4 comes right after 5:3-3 which is appointment of experts. And the juvenile court rule is separate.
MS.
LAMB: I know, I was confused by that.
THE
COURT: Yes, well I was confused by that
also. So were all confused by it
because I -- thats -- yes, The Court shall also assign counsel to represent
indigents in family actions where a party is by --
MR.
DAVIS: And, Judge --
THE
COURT: Yes, I mean, I had some problems
with that too because it seems to connect it to juvenile and yet juvenile is an
entirely separate court rule and it comes right after a rule that deals with FM
dissolution cases.
MS.
LAMB: I know. I --
MR.
DAVIS: Judge, and it also says
specifically that Paragraph (a) of this rule, and this is the commentary
subsection (a), Paragraph (a) of this rule dealing with the right to counsel is
applicable to juvenile delinquency actions as well as civil family actions
since there is no specific provision.
THE
COURT: Ill have to take a look at
that.
MR.
DAVIS: And going backwards, Judge, Mastin,
the case that was cited by my adversary.
It did hold that by rejecting the Sixth Amendment, the Court had also
rejected the Fourteenth Amendment challenge.
Your Honor should look at the context in which that holding was
made. The federal court was making a
holding that the state had dug its heels in and was not going to apply the
Fourteenth Amendment. And so the
federal court was saying Im -- were going to reach the merits here.
THE
COURT: Whats the cite on that again?
MR.
DAVIS: Mastin v. Fellerhoff,
Judge. Its 526 F.Supp. 969.
THE
COURT: How do you respond to the
argument by the Deputy Attorney General that there is a reference to McBride
in the Scalchi case? And McBride,
in fact, if I was writing an opinion I could probably plagiarize that entire
thing because, I mean, its -- you know, it talks about the Fourteenth
Amendment. It talks about the Sixth
Amendment really doesnt apply. But
they do cite McBride. And McBride
certainly was a Fourteenth Amendment case.
How do you respond to her argument that they must have implicitly
considered it if they quoted it?
MR.
DAVIS: Judge, if they were going to
consider it I think they would do more than implicitly consider it. That they would have to explicitly consider
it. I dont think one mention of a case
that turns on it should lead to the conclusion that they have thoroughly
considered the argument, especially since theres -- the arguments are the
diametric opposite of what Scalchi holds. I would also point out that In re Commitment D.L., which
just for the record, Your Honor, you cited as a 2003 case, its a 2002
case. But it is after Scalchi.
THE
COURT: Yes, I thought that was wrong
when I saw 2003. But --
MR.
DAVIS: Oh did I do that? I dont think I did that.
MS.
LAMB: No, 2003.
MR.
DAVIS: Okay.
THE
COURT: No, I when I read it in my write
up I thought 2003 was wrong. But --
yes, D.L. is a little bit different.
I mean, D.L. deals with a commitment. But --
MS.
LAMB: Judge, can I speak?
THE
COURT: Yes. Go on.
MS.
LAMB: In D.L. the Court said
that because of the complex nature of the commitment proceeding they felt that
a attorney should be appointed. I dont
think in this type of hearing where its about how much money you have in the
bank, or dont have in the bank, its not a very complex issue. So they appointed counsel based on the fact
that it was a difficult issue. And that
people that had a mental disability, it would make it even more difficult for
them to be able to represent themselves.
MR.
DAVIS: Like Anne Pasqua. Judge, I --
THE
COURT: Well --
MR.
DAVIS: Judge, I --
MS.
LAMB: Thats a whole separate --
MR.
DAVIS: The text out of D.L. is,
quote, The label affixed to a case is not the dispositive consideration. Rather we look to the infringement upon the
persons due process rights to guide our decision. And Judge King was
referring right there to Lassiter.
He cites Lassiter immediately after that. I think that D.L. discusses the
Fourteenth Amendment. Im sure that D.L.
discusses the Fourteenth Amendment. And
Scalchi, as you indicated, was brought by a pro se litigant. I have seen, obviously, unpublished cases
where pro se litigants raised the Thirteenth Amendment, Involuntary Servitude
--
THE
COURT: And you know --
MR.
DAVIS: -- where all sorts of other
crazy things --
THE
COURT: But you know, Lassiter
talks about a case by case analysis on the termination of parental rights. And weve decided in New Jersey under the Kriss
(phonetic) case that were going -- every single case were going to appoint
counsel. And thats purposely a civil
case. It doesnt involve any loss of
freedom. If we do that then how can we
logically say that we dont give somebody an attorney? You know, I know that it involves a child
and I know that theres some sense that, you know, somebody who hasnt paid
child support, you know, they -- but there may be -- the whole purpose of the
appointment of counsel is to protect the rights of an individual who may be
facing incarceration from a wrong decision.
And to make sure that their due process rights are protected. And I understand that there may be some
fundamental concern that you have somebody who hasnt paid anything. And Ive been there. But, you know, you cant ignore the
Constitutional -- its funny, I was talking about this case to my son whose 17,
and we were in the car and I just happened to be talking to him about it, and
explaining the issue to him. And, you
know, this is just, you know, a 17 year old kid who happens to be very, very
smart. He says, well, mom, any time
youre going to incarcerate somebody, you know, shouldnt you give that person
a lawyer if they cant afford it? And
thats sort of -- and its a really -- its a simple concept.
If
youre going to incarcerate somebody and they cant afford a lawyer -- now a
lot of these people can. They can
afford a lawyer. So if they -- I bet
you that the majority of -- I dont know about the majority, but a significant
number of individuals they fill out a 5a form when theyre picked up and if
they dont qualify then theyre going to proceed without counsel unless their
family or somebody makes an effort to secure counsel.
I mean,
I guess you could even, for the people who have failed to appear -- the people
who have failed to appear you could even develop a mechanism that if a guy said
yeah, you know, I want a week, I want to talk to a lawyer, you can actually, I
guess, develop a mechanism where you
could require the guy to post money with the understanding that if they failed
to appear it be applied to child support.
MS.
LAMB: Like a purging amount.
THE
COURT: Like a purge amount. And --
MR.
DAVIS: I think more of a bond is what
Your Honor is describing.
MS.
LAMB: Its a bail, but its --
THE
COURT: Well, but you see I dont want
to call it bail.
MS.
LAMB: Right.
THE
COURT: Because if I call it bail then
--
MR.
DAVIS: No, a bond.
MS.
LAMB: It doesnt get applied to child
support.
MR.
DAVIS: A bond ensuring compliance. Ive seen matrimonial courts --
THE
COURT: Right. So for example, if mom puts up $1,500 and, you know, Johnny gets
out of jail and he wants to talk to a lawyer, and he can afford a lawyer, but
he has no time to make the arrangements.
Of course if mom has $1,500 she ought to be able to get the lawyer. But anyway, I mean, theres all different
kinds of logistical things that conceivably be worked out.
I
happen to think that hes right that if they -- if they really -- McBride
may have been in a brief. I dont know
how McBride got into Scalchi. Lassiter didnt and Lassiter
was the critical case. And I happen to
agree with the -- with counsel for -- Mr. Davis that if they were really going
to talk about the Fourteenth Amendment, they really should have explicitly
mentioned it. And I initially said,
well, you only get to the Sixth Amendment through the States -- through the
Fourteenth Amendment. And, therefore,
implicit in this decision is the Fourteenth Amendment. I said that. And I said that until I read all the cases. And the cases said its a separate
constitutional entitlement separate than the Sixth Amendment. And I tend to agree with them. They would have been -- they would have been
much more specific.
MR.
DAVIS: Judge, if I can just very
briefly on this topic? If Scalchi
is read as referencing McBride, McBride
references the U.S. Supreme Court in Lassiter. If we follow this train then were saying
that Judge -- that the Appellate Division overturned the United States Supreme
Court. If were going to say that
raising something by inference is --
THE
COURT: Well --
MR.
DAVIS: -- is to address that issue in
its entirety.
MS.
LAMB: I think that cuts against you
because then they did consider Lassiter in a way because they considered
McBride --
THE
COURT: Right.
MS.
LAMB: -- and Lassiter was --
THE
COURT: Right.
MS.
LAMB: -- in McBride.
THE
COURT: Right.
MR.
DAVIS: But you cant consider Lassiter
and come out the way this --
MS.
LAMB: I think they do.
THE
COURT: Yes. Well.
MS.
LAMB: I mean, they dont consider Lassiter
in the case. But, I mean, thats a
fundamentally fair standard. And I
guess the thing here is you have an Ability to Pay hearing. And thats -- thats the fairness thats
being provided to you.
THE
COURT: Yes. But the whole argument that McBride makes is that if you
have individual -- the whole reason for the appointment of counsel is that
people are not always very sophisticated about their arguments in court;
theyre scared, theyre unsophisticated.
Some of them may not mentally be -- I mean, there are all kinds of
mental health issues and so forth.
MS.
LAMB: But, Your Honor, the person is
given an opportunity to appear before an enforcement officer, a hearing
officer, and given a chance at that point to explain their circumstances; their
finances and such. A lot of these
people dont even bother to show up at those.
THE
COURT: They dont. They dont.
MS.
LAMB: And now were going to give them
an attorney. It doesnt seem -- its
like they do hold the key to their own cell.
They could go to the enforcement hearing and say, look, I cant afford
this and this is why I cant afford it.
But they dont even do that. So
it seems like theyre now reaping a benefit that they shouldnt be entitled to
because they dont even participate in the system.
THE
COURT: Well, its a complex issue, I
dont disagree with that. And there is,
you know, some sort of initial reaction if you dont appear and you dont
cooperate, you know, then why should why go to the trouble and expense? I understand that reaction. And I -- you know it is offensive. But on the other hand, I think if youre
going to take somebodys freedom away, even though theyve been, you know,
irresponsible -- I mean, certainly -- you know, I mean, a person that --
MS.
LAMB: But we wont take your freedom
away -- if youre truly indigent were not going to put you in jail.
MR.
DAVIS: Judge, not everybody that
appears in an enforcement hearing did not show up. There are people that did show up. There are people that are informed by a hearing officer you have
to make a payment; that they then cant make.
The
only significant factual issue that I would disagree with Your Honor on,
respectfully, is that you were to contact the jail and look at whose there, in
my experience and I understand its anecdotal, but I have been to a number of
the jails in connection with this suit and with Leonard, youre going to
find overwhelming is inner city men who have too many kids by too different --
too many different relationships. They
have never supported themselves in life and theyre not supporting their
children. And its a tremendously
difficult social issue. Im not making
light of it. Its a serious issue. I mean, we can go back to L.B.J.s
(phonetic) war on poverty and somehow provide --
THE
COURT: Yes. All right.
MR.
DAVIS: -- an economic whatever. But the
answer that the State has arrived at by default in its zealousness and its
proper zealousness in enforcing child support is to just to lock these people
up repeatedly, over and over. I think
if an attorney is there, for one thing, the experience of other states, and
again this is anecdotal, but its --
THE
COURT: Well, I think, quite frankly, if
you have a lawyer present you might have a better system.
MR.
DAVIS: I believe so, Judge.
THE
COURT: And negotiate. You know, you pay X number of --
MR.
DAVIS: And especially when your own
attorney is telling you, look, youre going to have to get a job or youre
going to have to show the applications.
When your own attorney is saying that to you, and this is again
anecdotal from other states, theres -- the compliance rates go up. If we look at Maryland, if we look at the
other states that appoint counsel they have higher compliance rates than New
Jersey.
THE
COURT: Yes, well, thats --
MR.
DAVIS: I dont think that theres a
legitimate argument thats going to hurt the enforcement system.
THE
COURT: All right. Anything else?
(No
audible response)
THE
COURT: I would -- if youd like an
opportunity supplement on the Fourteenth Amendment issue, if you want --
MS.
LAMB: Thatll be good.
THE
COURT: I will give you that
opportunity.
MR.
DAVIS: Judge, if I can supplement --
just --
THE
COURT: Sure.
MR.
DAVIS: In literally five pages that
there is something that was just brought up to my attention, the whole concept
of capius ad (sic), that is the --
THE
COURT: Right. I tried a case on that the other day. Judge Whitken --
MR.
DAVIS: Theres a whole --
THE
COURT: Judge Whitkens case.
MR.
DAVIS: I feel like I missed the -- like
I dropped the ball in not realizing that this line -- now I understand that
separate because its separate from a contempt, which is what this is. But I still think that the line of cases
that come down here out of the capius cases would be applicable and they are
100 percent clear that you must every procedural due process right to the
criminal defendant --
THE
COURT: Well, why dont you brief that
issue if you think its, you know, a comparable kind of a situation. I actually read a case on that, Judge
Whitken from Union County.
MR.
DAVIS: Right.
THE
COURT: I came across that case.
MR.
DAVIS: I know the case that youre
referring to.
THE
COURT: I cant think of it. Okay.
I want to get this done quickly, but I want to give you enough -- can
you do -- do you want to supplement by next Friday?
MS.
LAMB: Certainly.
THE
COURT: Is that --
MR.
DAVIS: Simultaneous submissions, Judge,
on the --
THE
COURT: Yes, do simultaneous --
MR.
DAVIS: -- Fourteenth Amendment from the
State?
THE
COURT: Yes, simultaneous submissions.
MS.
LAMB: Okay.
MR.
DAVIS: Page limit, Judge?
THE
COURT: No page limit.
MR.
DAVIS: Thank you, Judge.
THE
COURT: No page limit. I dont like page limits. I mean, I chair the supreme court committee
that imposed page limits. But not in
these kinds of cases. All right. Next Friday then. If you can get it to me like at noon that would be great. If you also give it to me on disk, that
would be great. And Ill probably make
a decision with it probably within a week thereafter. Okay?
MS.
LAMB: All right. Thank you, Your Honor.
THE
COURT: Very well. Thank you.
MR.
DAVIS: Thank you, Judge.
(Tape
off)
* * * *
*
CERTIFICATION
I, GINA
M. CERMAK, the assigned transcriber, do hereby certify the foregoing transcript
of proceedings on tape number CI38-03-LRF, index number 28 to 3128, 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, and to the best of my ability.
___________________________ Date:
______________
GINA M.
CERMAK, AOC #508
J&J
COURT TRANSCRIBERS, INC.
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