|
State Court Is the Right Forum for Seeking
Counsel in Support Cases
.gif)
Federal court invokes Younger
abstention in declining jurisdiction
Mary P. Gallagher
New Jersey Law Journal
01-27-2003
A suit to force New
Jersey to appoint lawyers for indigent parents before jailing them for
skipped child support belongs in state court, the 3rd U.S. Circuit Court of
Appeals ruled on Jan. 17.
The court found that
the trial judge properly abstained under Younger v. Harris, 401 U.S. 37 (1971), by
which a federal court can decline jurisdiction when it would interfere with
an ongoing state-court proceeding involving an important state interest and
when that proceeding affords an opportunity to raise the federal claim.
Though the
plaintiffs had not been scheduled to appear in state court, it is possible
they could be called to do so in an enforcement proceeding, wrote Judge
Anthony Scirica, joined by Judges Marjorie Rendell and John Noonan Jr.
"For purposes
of Younger, such a comprehensive and
fluid system designed to address the ever-present and ever-changing
realities of child support orders must be viewed as a whole, rather than as
individual, discrete hearings," the court said in Anthony v. Council, 01-2735.
The plaintiffs also
had failed to show that their claims could not be fully heard in state
court, the panel found. "Child support obligors are free to raise
their issues at any time at any child support hearing or contempt
hearing" and to appeal an adverse decision, Scirica said.
Nor did the
plaintiffs show bad faith, harassment or other extraordinary circumstances
that would render abstention inappropriate, he continued.
The ruling affirms
the decision of Judge Garrett Brown Jr. in the class action, civil rights
suit that accuses the state of violating due process by not appointing
counsel.
As a result of the
appeals ruling, plaintiffs' counsel David Perry Davis says he plans to
re-file the suit this week in Mercer County Superior Court. Davis says he
will not ask for a rehearing because he does not want to lose more time on
top of what he has spent litigating the issue in federal court. He will
also file an order to show cause, he says.
Davis, a Princeton
solo, argued that New Jersey courts would not be hospitable to the
plaintiffs' claims, based on Scalchi v. Scalchi, 347 N.J. Super. 493
(2002), which held that New Jersey law does not mandate assigned counsel
for indigents in child-support cases.
The 3rd Circuit
answered that Scalchi does not demonstrate that New Jersey courts are
resistant to adjudicating indigent parents' constitutional rights. "We
are confident that any constitutional challenge to state court practice
would receive proper consideration by the New Jersey courts," wrote
Scirica.
While unhappy with
the 3rd Circuit's decision, Davis is heartened by the "proper
consideration" comment and the last two sentences of the opinion,
which he sees as supportive of plaintiffs' claims on the merits.
"We do not
intend to minimize the importance of the rights asserted. But we believe
this constitutional challenge should be raised in the New Jersey
courts," Scirica wrote in closing.
Though Davis expects
to lose at the trial level and probably in the Appellate Division after an
emergent appeal, he hopes the Supreme Court will hear the issue in tandem
with another appeal on the right to counsel to be heard this term. In that
case, In re Civil Commitment of D.L., 351 N.J. Super. 77, the Appellate Division held
that convicted sex offenders who are civilly committed at the end of their
jail terms under the Sexually Violent Predator Act have a right to
appellate counsel.
Davis already has
one state court victory under his belt on behalf of child support obligors.
His suit on behalf of parents jailed for nonpayment of support without a
hearing on their ability to pay, Leonard v. Blackburn, MER-L-3761-01, resulted
in a Jan. 23, 2002, memorandum from Richard Williams, acting administrative
director of the courts, directing assignment judges to hold hearings within
72 hours.
Williams is a
defendant in Anthony, along with Chief Justice Deborah Poritz, and
Mercer Family Part Judges Gerald Council and F. Lee Forrester.
The named plaintiffs,
Anne Pasqua, Ray Tolbert and Michel Anthony, allege that their nonpayment
of court-ordered child support landed them in jail for contempt and that
their inability to pay places them at continued risk.
They contend that
they cannot afford a lawyer and so the state must provide one under Lassiter v. Dept. of
Social Services, 452 U.S. 18 (1981), and Rodriguez. v.
Rosenblatt, 58 N.J. 281 (1971), rulings that recognize a right to counsel for
indigents facing possible imprisonment.
The plaintiffs allege
that Council and Forrester violated the 14th, 5th and 6th amendments by
failing to provide counsel or to inform them of their right to counsel.
The defense lawyer
in Anthony, Deputy Attorney General
Barbara Stoop, did not return a call seeking comment.
|
|
 
|
|
.gif){kind=spacer}
