WARNING: DO NOT USE THESE PLEADINGS WITHOUT FIRST CONSULTING ME (EMAIL ME AT DPD@DPDLAW.COM). A LOT HAS BEEN LEARNED SINCE THE FILING OF THIS ACTION AND A LOT OF PROBLEMS COULD BE AVOIDED BY RESTRUCTURING THE COMPLAINT.

The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

(732) 274‑2050 (fax)

Attorney for plaintiff class

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Anne Pasqua, Ray Tolbert, and Michael Anthony, individually and on behalf of all persons similarly situated, Plaintiffs vs. Hon. Gerald J. Council and Hon. F. Lee Forrester, individually and in their official capacity as Judges of the Superior Court, and on behalf of all Superior Court Judges of the State of New Jersey who have in the past conducted Ability to Pay Hearings or who will in the future conduct Ability to Pay hearings, Hon. Deborah Poritz, individually and in her official capacity as Chief Justice of the Supreme Court of New Jersey Hon. Richard J. Williams, individually and in his official capacity as Administrative Director of the Courts of the State of New Jersey, Defendants

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SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION MERCER COUNTY DOCKET NO. Civil Action COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Class Action / Civil Rights)

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I. PRELIMINARY STATEMENT

1. This is the re‑filing of a Complaint originally docketed in the Federal District Court for the District of New Jersey (Docket No. 00CV‑2418) following the ruling of the United States Court of Appeals for the Third Circuit that, pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), this issue should be addressed by the State (as opposed to Federal) Courts (___ F.3d ___, 3d Cir.2003, 2003 WL 152737, Docket No. 01‑2735).

2. This is a class action brought by child support obligors who are in arrears under child support orders entered by the Superior Court of New Jersey, Chancery Division, Family Part. Plaintiffs have been deprived of their physical liberty and areunder a constant threat of incarceration through procedures which deprive them of rights guaranteed by the Fourteenth Amendment to the Federal Constitution. Plaintiffs are representative of a class of persons who are similarly situated.

3. This complaint requests declaratory and injunctive relief under 42 U.S.C. §1983 against the judges of the Superior Court of the State of New Jersey to prevent them from engaging in practices which abridge the substantive constitutional rights of plaintiffs and all those similarly situated.

II. JURISDICTION AND VENUE

4. Jurisdiction is conferred on this Court by Article 6 §1.2 of the New Jersey Constitution. This is an action arising under the Constitution and laws of the United States. The plaintiffs cause of action arises under 42 U.S.C. §1983.

5. Venue is appropriate under Rule 4:3‑2(a) as defendants are located or reside in this judicial district, and the alleged events giving rise to the claim occurred in this judicial district.

III. PARTIES

6. Plaintiff Anne Pasqua is a citizen of the United States and a resident of the State of New Jersey. She was compelled to attend a hearing wherein her constitutional right to liberty was placed at risk and where she was in fact incarcerated. She is indigent and was not informed of her right to counsel and her right to have counsel appointed to represent her if she was indigent. She was not appointed counsel. Plaintiff remains indigent, in arrears on her support obligation, and there is a great likelihood that she will again be deprived of her constitutional rights as alleged herein. 

7. Plaintiff Michael Anthony is a citizen of the United States and a resident of the State of New Jersey. In 2000, and again in 2003, he was compelled to attend a hearing wherein his constitutional right to liberty was placed at risk. He is indigent and was not informed of his right to counsel and his right to have counsel appointed if he was indigent. He was not appointed counsel. Plaintiff remains indigent and there is a great likelihood that he will again be deprived of his constitutional rights as alleged herein.

8. Plaintiff Ray Tolbert is a citizen of the United States and a resident of the State of New Jersey. He was compelled to attend a hearing wherein his constitutional right to liberty was placed at risk and where he was in fact incarcerated. He is indigent, in arrears on his support obligation, and was not informed of his right to counsel and his right to have counsel appointed to represent him if he was indigent. He was not appointed counsel. Plaintiff remains indigent and there is a great likelihood that he will again be deprived of his constitutional rights as alleged herein.

9. Defendant Hon. F. Lee Forrester is a Judge of the Superior Court, assigned at the time the cause of action herein arose by Order of the Supreme Court of New Jersey to the position of the Presiding Judge of the Chancery Division, Family Part. He presided over the hearing plaintiff Anne Pasqua attended.

10. Defendant Hon. Gerald J. Council is a Judge of the Superior Court, assigned by Order of the Supreme Court of New Jersey to the Chancery Division, Family Part. He presided over the hearing that plaintiffs Michael Anthony and Ray Tolbert attended.

11. Defendant Hon. Deborah Poritz is the Chief Justice of the New Jersey Supreme Court and as such is head of the judicial department and responsible for its administration. New Jersey Statutes Annotated Sec. 91:6‑7.1 (1999), New Jersey Constitution, Art. 6 §7 ¶1.

12. Defendant Hon. Richard J. Williams is the Administrative Director of the Courts of the State of New Jersey, appointed by Chief Justice Deborah Poritz and charged with the efficient operation of the judicial department and the prompt administration of judicial business of the State of New Jersey. New Jersey Statutes Annotated Sec. 91:6‑7.1 (1999), New Jersey Constitution, Art. 6 §7 ¶1.

IV. CLASS ACTION

13. The named plaintiffs bring this suit individually and, pursuant to Rule 4:32‑1(a) and 4:32‑1(b) of the Rules Governing the Courts of the State of New Jersey, on behalf of all residents of the State of New Jersey who: (1) have been, currently are, or will in the future be under support orders issued by the Chancery Division, Family Part of the Superior Court; (2) have been, are currently, or will in the future be indigent and unable to procure counsel to represent them at civil contempt and/or enforcement proceedings that potentially could result in a loss of their physical liberty and; (3) have been, are now, or may in the future be in arrears under these support orders and are thus under constant threat of incarceration.

14. This is a proper class action under Rule 4:32‑1(a) and 4:32‑1(b) of the Rules Governing the Courts of the State of New Jersey in that, as to the class: (1) the persons affected are so numerous that joinder of all parties is impracticable; (2) there are common questions of law and fact; (3) the claims and defenses of the representative plaintiffs are representative of those of the class; (4) the representative plaintiffs will fairly and adequately protect the interests of the class; and (b)(2) the parties opposing the class plaintiffs have acted on grounds generally applicable to the class, thereby making appropriate final injunctive relief to the class as a whole.

15. Defendants Hon. Gerald J. Council and Hon. F. Lee Forrester are sued individually and in their official capacities and, pursuant to Rule 4:32‑1(a) and 4:32‑1(b) of the Rules Governing the Courts of the State of New Jersey, as representative parties on behalf of a defendant class consisting of all the Superior Court Judges of the State of New Jersey who have in the past conducted Ability to Pay Hearings or who will in the future conduct Ability to Pay hearings.

16. This is a proper class action under Rule 4:32‑1(a) and 4:32‑1(b) in that: (1) the persons affected are so numerous that joinder of all parties is impracticable; (2) there are common questions of law and fact; (3) the claims and defenses of the representative defendants are representative of those of the class; (4) the representative defendants will fairly and adequately protect the interests of the class; and (b)(1)the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.

V. CAUSE OF ACTION

As to Plaintiff Anne Pasqua

17. Plaintiff Anne Pasqua was placed under a child support obligation in the amount of $160.00 per week for Nicholas Pasqua and Michael Pasqua on January, 10, 1999 by Order of the Superior Court of New Jersey, Chancery Division, Family Part.

18. Plaintiff Anne Pasqua became indigent and as a result was unable to comply with the child support obligation.

19. In or around January, 2000, plaintiff Anne Pasqua was found to be in arrears on said support obligation.

20. In or around April, 2000, a warrant for plaintiff's arrest was issued. Plaintiff was arrested on or about May 15, 2000.

21. On May 18, 2000, plaintiff appeared before the Hon. F. Lee Forrester, a Judge of the Superior Court of the State of New Jersey. A hearing was held on that date. A release amount of $3,400 was set for plaintiff. Plaintiff was not informed of her right to counsel. Plaintiff was not informed of her right to have counsel appointed to represent her if she was found to be indigent. Plaintiff was not appointed counsel.

22. Pursuant to court procedures, policies and rules promulgated by the Supreme Court of New Jersey and by Chief Justice Poritz and/or by Judge Williams, in his official capacity as Administrative Director of the Courts of the State of New Jersey, including but not limited to New Jersey Court Rules 1:10‑3, 5:7‑5, and 5:25‑3, plaintiff was incarcerated at the Mercer County Corrections Center. Plaintiff remained incarcerated and unable to pay the amount set for her release until she was released (without having made any payment) on or about June 1, 2000.

23. In the fall of 2000, plaintiff was represented by the Community Health Law Project as a result of her psychiatric disability. The Community Health Law Project filed an application to reduce Ms. Pasqua's support to $5.00 per week. As of January 24, 2003, Ms. Pasqua is in default on this obligation. The Community Health Law Project no longer represents Ms. Pasqua and are not counsel of record pursuant to Rule 1:11-3.

24. As of January 24, 2003, plaintiff Anne Pasqua remains $12,885.54 in arrears on said obligations, having remained unable to pay the required support. Plaintiff remains indigent and there is a great likelihood that she will again be deprived of her constitutional rights as alleged herein.

As to Plaintiff Ray Tolbert

25. Plaintiff Ray Tolbert was placed under a child support obligation in the amount of $209.00 per week for Erik and Erika Brookins in or about 1995. Additionally, plaintiff is under an obligation to pay $25.00 per week to an arrears‑only account.

26. Plaintiff Ray Tolbert became indigent and as a result was unable to comply with the child support obligation.

27. In or around February of 2000, a warrant for plaintiff's arrest was issued. Plaintiff was arrested on March 27, 2000. Plaintiff was held without any court review for 17 days.

28. On April 13, 2000 plaintiff Ray Tolbert was compelled to attend a hearing in front of Hon. Gerald J. Council, JSC. Plaintiff was found to be in arrears in the amount of $116,261.56 on said obligations. A release amount of $10,000 was set without any finding that plaintiff had the capacity to raise this amount. Plaintiff was not informed of his right to counsel. Plaintiff was not informed of his right to have counsel appointed to represent him at said hearing if he was found to be indigent. Plaintiff was not appointed counsel.

29. Pursuant to court procedures, policies and rules promulgated by the Supreme Court of New Jersey and by Justice Poritz, including but not limited to New Jersey Court Rules 1:10‑3, 5:7‑5, and 5:25‑3, plaintiff was incarcerated at the Mercer County Corrections Center.

30. On June 7, 2000 (after spending 73 days in jail) the state appellate court issued an order in an unrelated case releasing plaintiff on grounds not related to this suit.

31. On June 8, 2000, plaintiff Ray Tolbert was compelled to attend a hearing regarding his child support arrears. Plaintiff was not informed of his right to counsel. Plaintiff was not informed of his right to have counsel appointed to represent him at said hearing if he was found to be indigent. Plaintiff was not appointed counsel.

32. Plaintiff was originally re‑incarcerated during the June 9 hearing, however the Probation Department agreed on that same date that plaintiff should be released into a work/training program.

33. As of January 24, 2003, plaintiff Ray Tolbert remains $134,699.70 in arrears on said obligations, having remained unable to pay the required child support. Plaintiff remains indigent and there is a great likelihood that he will again be deprived of his constitutional rights as alleged herein.

As to Plaintiff Michael Anthony

34. Plaintiff Michael Anthony was placed under a child support obligation in the amount of $85 per week for Gina Powell in 1991, and $60 per week for Lisa Anthony in or around 1987.

35. Plaintiff Michael Anthony became indigent and as a result was unable to comply with the child support obligation.

36. In around the fall of 1999, plaintiff Michael Anthony was found to be in arrears in the amount of $49,234 on said obligations.

37. In or around the fall of 1999, a warrant for plaintiff's arrest was issued. Plaintiff was arrested on April 19, 2000.

38. Pursuant to court procedures, policies and rules promulgated by the Supreme Court of New Jersey and by Chief Justice Poritz, including but not limited to New Jersey Court Rules 1:10‑3, 5:7‑5, and 5:25‑3, plaintiff was incarcerated at the Mercer County Corrections Center.

39. On or about May 11, 2000, plaintiff appeared before the Defendant Hon. Gerald J. Council, a Judge of the Superior Court of the State of New Jersey. A hearing was held on that date. Plaintiff's liberty was endangered at said hearing. Plaintiff was not informed of his right to have counsel appointed to represent him at said hearing if he was found to be indigent. Plaintiff was not appointed counsel.

40. Plaintiff was released from the Mercer County Corrections Center on May 11 after paying $125.00 toward his arrears. Plaintiff was specifically instructed that if he missed two further payments, another warrant for his arrest would be issued and he would be compelled to attend another hearing wherein he potentially would face a loss of physical liberty.

41. In January of 2003, Plaintiff Michael Anthony appeared in court and made a payment on his arrears in order to have a warrant for his arrest vacated. He remains in arrears on said obligations, having remained unable to pay the required $145.00 per week.

As to all plaintiffs

42. Pursuant to court procedures, policies and rules promulgated by the Supreme Court of New Jersey and by Chief Justice Poritz, including but not limited to New Jersey Court Rules 1:10‑3, 5:7‑5, and 5:25‑3, there is a great likelihood that the constitutional rights of plaintiffs and all those similarly situated will again be violated by the defendant class.

43. The court procedures, policies and rules promulgated by the Supreme Court of New Jersey and by Chief Justice Poritz, including but not limited to New Jersey Court Rules 1:10‑3, 5:7‑5, and 5:25‑3, remain in full force and effect. These procedures, policies and rules are uniformly and routinely applied in like manner against the named plaintiffs and all those similarly situated.

44. At all relevant times, the defendants herein acted under color of statute, ordinance, regulation, custom, or usage of the State of New Jersey when they subjected, or caused to be subjected, the plaintiff and all those similarly situated to the deprivation of their rights, privileges, or immunities secured by the Constitution and laws of the United States of America.

COUNT I: FAILURE TO INFORM AS TO CONSTITUTIONAL RIGHTS

Failure to inform defendants as to right to counsel generally

45. At no point during the aforementioned hearings did Judge Council or Judge Forrester inform plaintiffs of their right to retain counsel prior to participating in a hearing which could result in the deprivation of their physical liberty.

46. The failure of Judge Council and Judge Forrester to inform plaintiffs of their right to counsel where the possible outcome of the proceeding was a deprivation of their physical liberty constituted a violation of plaintiffs' right to Due Process under the Fourteenth Amendment to the United States Constitution.

47. At no point during these hearings did Judge Council or Judge Forrester inform plaintiffs of their right to retain counsel prior to participating in a hearing which could result in "consequences of magnitude."

48. The failure of Judge Council and Judge Forrester to inform plaintiffs of their right to counsel where the possible outcome of the proceeding was a "consequence of magnitude" constituted a violation of plaintiffs' right to Due Process under the Fourteenth Amendment to the United States Constitution.

Failure to inform indigent plaintiffs

of right to appointed counsel

49. At no point during said hearings did Judge Council or Judge Forrester inform plaintiffs of their right to have counsel appointed to represent them without charge if plaintiffs were indigent and where the possible outcome of the proceeding was a deprivation of their physical liberty or other "consequence of magnitude."

50. The failure of Judge Council and Judge Forrester to inform plaintiffs of their right to have counsel appointed if plaintiffs were indigent and where the possible outcome of the proceeding was a deprivation of their physical liberty constituted a violation of plaintiffs' right to Due Process under the Fourteenth Amendment to the United States Constitution.

51. The failure of Judge Council and Judge Forrester to inform plaintiffs of their right to have counsel appointed without charge if plaintiffs were indigent and where the possible outcome of the proceeding was a "consequence of magnitude" constituted a violation of plaintiffs' right to Due Process under the Fourteenth Amendment to the United States Constitution.

52. All procedures employed by Judges Council and Forrester were promulgated by Chief Justice Poritz, in her official capacity as Chief Justice of the Supreme Court of New Jersey, and/or by Judge Williams, in his official capacity as Administrative Director of the Courts of the State of New Jersey.

COUNT II:

SUBJECTING TO POTENTIAL INCARCERATION WITHOUT APPOINTING COUNSEL

53. Plaintiffs were compelled to participate in hearings which potentially could have resulted in a deprivation of their fundamental constitutional right to liberty. Plaintiffs were indigent. Counsel was not appointed to represent them. The failure of Judge Council and Judge Forrester to appoint counsel for plaintiffs constituted a violation of plaintiffs' right to Due Process under the Fourteenth Amendment to the United States Constitution.

COUNT III:

SUBJECTING TO CONSEQUENCE OF MAGNITUDE WITHOUT APPOINTING COUNSEL

54. Plaintiffs were compelled to participate in hearings which potentially could have resulted, and in the cases of plaintiffs Pasqua and Tolbert actually did result, in a "consequence of magnitude" as this term has been defined by the New Jersey Supreme Court. Plaintiffs were indigent. Counsel was not appointed to represent any of them without charge. The failure of Judge Council and Judge Forrester to appoint counsel for plaintiffs constituted a violation of plaintiffs' substantive rights under the Fourteenth Amendment to the United States Constitution.

WHEREFORE, plaintiffs and all those similarly situated pray that this Court enter a judgment in its favor and against the defendants and the class they represent:

(Notification of right to counsel generally)

1. Declaring that the constitutional rights of plaintiffs and all those similarly situated were violated by defendants' failure to notify them of their right to counsel where the possible outcome of the proceeding was a deprivation of physical liberty;

2. Declaring that the constitutional rights of plaintiffs and all those similarly situated were violated by the defendants' failure to notify them of their right to counsel where the possible outcome of the proceeding was a "consequence of magnitude";

(Notification of right to appointed counsel if indigent)

3. Declaring that the constitutional rights of plaintiffs and all those similarly situated were violated by the defendants' failure to notify them of their right to have counsel appointed to represent them without charge if they are indigent and the possible outcome of the proceeding was the deprivation of their physical liberty; 

4. Declaring that the constitutional rights of plaintiffs and all those similarly situated were violated by the defendants' failure to notify them of their right to have counsel appointed to represent them without charge if they are indigent and the possible outcome of the proceeding was a "consequence of magnitude";

(Failure to appoint counsel)

5. Declaring that the constitutional rights of plaintiffs and all those similarly situated were violated by the defendants' failure to appoint counsel to represent them without charge during any proceeding where the possible outcome of the proceeding was the deprivation of their physical liberty;

6. Declaring that the constitutional rights of plaintiffs and all those similarly situated were violated by the defendants' failure to appoint counsel to represent them without charge during any proceeding where possible outcome of the proceeding was a "consequence of magnitude";

(Compelling prospective appointment of counsel)

7. Enjoining the defendant class from incarcerating plaintiffs and all those similarly situated without first notifying them of their right to counsel;

8. Enjoining the defendant class from incarcerating plaintiffs and all those similarly situated without first notifying them of their right to have counsel appointed to represent them without charge if they are indigent and where the possible outcome of the proceeding is the deprivation of their physical liberty;

9. Enjoining the defendant class from incarcerating plaintiffs and all those similarly situated without first notifying them of their right to have counsel appointed to represent them without charge if they are indigent and the possible outcome of the proceeding is a "consequence of magnitude";

10. Requiring defendant class to hereafter appoint counsel for indigent child support obligors whenever the possible outcome of a proceeding could result in a deprivation of liberty;

11. Requiring defendant class to hereafter appoint counsel for indigent child support obligors whenever the possible outcome of a court proceeding could result in a consequence of "magnitude";

12. Requiring defendant class to immediately review the cases of all persons now incarcerated in violation of their constitutional rights as alleged herein;

13. For counsel fees and costs of suit.

Respectfully submitted this 14^th day of February, 2003

_________________________

David Perry Davis, Esq.

David Perry Davis, Esq. (DPD 4553)

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444 (voice)

(732) 274‑2050 (fax)

dpd@dpdlaw.com (e‑mail)