Child-Support
Contemnors Have Right to Counsel
Mercer County judge's ruling begs question of who provides
lawyers for indigent delinquents
Mary P. Gallagher
New Jersey Law Journal
04-28-2003
A Superior Court judge ruled last Thursday that judges can no longer lock up
poor people who fail to pay child support unless they are provided with a
lawyer.
"[T]he Fourteenth Amendment due process clause requires the appointment of
counsel for an indigent child support obligor who faces incarceration,"
Mercer County Assignment Judge Linda Feinberg wrote in Pasqua v. Council,
L-406-03.
Feinberg found clear federal and state authority for a right to counsel. Most
states, including New York, Connecticut and California, appoint counsel at
initial hearings, Feinberg pointed out.
But, she recognized, implementation of the right is far murkier. Still to be
resolved is who will provide lawyers for indigents since, as she noted, the
Office of the Public Defender has no statutory obligation to handle such cases.
Ensuring that every person arrested for child-support arrearages has a lawyer
could impose an enormous burden on the court system. Winnie Comfort, a
spokeswoman for the Administrative Office of the Courts, says that 35,531 arrest
warrants were outstanding against child support obligors as of April 18.
Another problem is how to get people arrested for nonpayment connected with
lawyers in time for their ability-to-pay hearing, which must be held within 72
hours. Given the short time frame, Feinberg did not think appointing private
attorneys was practical. "While the pro bono list maintained by each
Vicinage is available, the utilization of this list may be problematic due to
the quick turnaround time between the time of an arrest and the ability to pay
hearing," she wrote.
Feinberg suggested using attorneys employed by the Office of County Counsel or
hired specially for the purpose.
She outlined several possible procedures:
• One way is that before appointing counsel, a judge would decide whether a
defendant was likely to be incarcerated, and then ascertain that the defendant
desired counsel but could not afford it.
• Another approach would be to deny counsel without prejudice at the initial
hearing but if incarceration were ordered, to stay the order pending an
expedited appeal for which counsel would be appointed. To enable meaningful
appellate review, appointed counsel could supplement the record on appeal with
documentary evidence and obtain a remand to seek testimony. The appeal process
could be streamlined by having the trial court transmit paperwork directly to
the appeals court, eliminating the need for filing by the parent owing support.
• Still another suggested approach involves initial denial of counsel, with a
stay of any incarceration to allow a motion for reconsideration, instead of an
appeal, to be heard within 30 days.
Plaintiffs' attorney David Perry Davis, a Princeton solo practitioner, praises
Feinberg for finding a right to counsel but says she failed to address his
request that those now in jail for unpaid child support get a new hearing within
72 hours. He estimates there are 300 people statewide.
Davis' clients, Anne Pasqua, Ray Tolbert and Michael Anthony, are noncustodial
parents who owe back child support, have been arrested at least once and remain
subject to future arrest.
In 2000, Judge Gerald Council (a named defendant) sentenced Tolbert to six
months in jail. He spent 93 days behind bars before an appeals court ordered him
released, recalls Davis. Tolbert owes about $135,000 for six children by three
mothers.
Many child-support delinquents like Anthony, who works part-time at a car wash,
can barely support themselves, Davis says.
Lead plaintiff Pasqua spent three weeks at Trenton Psychiatric Hospital last
year and now lives in a shelter, says Davis. In 2001, the Community Health Law
Project got her support obligation knocked down to $5 a week from $160, which
she still cannot pay, says Davis.
EMERGENT RELIEF SOUGHT
Davis says Feinberg also did not discuss his request that all defendants be
advised of their right to have counsel at an ability-to-pay hearing. Last
Friday, he filed an application for emergent relief on that issue and to
expedite implementation.
Her proposed procedures also have Davis scratching his head.
On Friday, he wrote to Deputy Attorney General Diane Lamb, who represents the
judiciary, saying that "these matters must be assigned to the Public
Defender's office and that counsel must be assigned before any ability-to-pay
hearing is conducted before a judge."
Davis' letter also questioned whether Feinberg's alternative proposal for
staying orders of incarceration was workable. "As Judge Feinberg points
out, nearly half the defaulted obligors scheduled for ability-to-pay hearings do
not appear as it is; I would imagine that percentage would only increase if
incarceration was the probable outcome of a second hearing," he wrote.
Essex County Counsel Francis Giantomasi sees a conflict of interest problem with
Feinberg's suggestion that county counsel represent child support obligors.
"This does not appear to be an appropriate job for the county, since we
represent the obligees," says Giantomasi.
Cost is also an issue. "If someone tells county counsel that this becomes
our charge, then someone from the state is going to have to tell us where we get
the money," he says.
Feinberg's reluctance to appoint private counsel will likely be welcomed by
lawyers concerned about a possible increase in mandatory pro bono obligations.
Richard Badolato, the president of the New Jersey State Bar Association, says
the organization will closely watch any appeal in Pasqua and will weigh
in on the issue of who provides the legal services.
Chuck Davis, a spokesman for the attorney general, says only that the office has
not yet decided whether to appeal.
Assistant Public Defender Dale Jones does not see the ruling as requiring
anything from his office, especially absent a legislative appropriation for the
purpose. Jones calls "ingenious" Feinberg's idea to deny counsel
without prejudice and provide a speedy appeal where necessary.
AMPLE PRECEDENT
In her opinion, Feinberg relied mostly on Lassiter v. Department of Social
Services, 452 U.S. 18 (1981), where the U.S. Supreme Court created a
"presumption of a right to appointed counsel 'where the litigant may lose
his physical liberty if he loses the litigation.' "
She also found support in Rule 5:3-4, which she read as requiring that "an
indigent child support obligor who faces institutional commitment or another
consequence of similar magnitude is entitled to the appointment of
counsel."
In addition, New Jersey case law requires representation in cases of
incarceration under a writ of capias ad satisfaciendum cases, which is
"nearly identical to a coercive incarceration" to enforce child
support, except that it is based on contract, said Feinberg.
She also cited In the Matter of the Civil Commitment of D.L., 351 N.J.
Super. 77 (App. Div. 2002), which requires counsel for sex offenders who appeal
from civil psychiatric commitment under the Sexually Violent Predator Act. The
court there held that the potential infringement on liberty determines the right
to counsel, not whether it's a criminal or civil case.
Feinberg distinguished a 2002 Appellate Division decision, Scalchi v. Scalchi,
347 N.J. Super. 493, that appointment of counsel is not mandated in a
child-support enforcement hearing because it was based on the Sixth Amendment
right to counsel in criminal cases and not on due process grounds.