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Superior Court of New Jersey

Appellate Division

DOCKET NO. A-5007-01T3

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Jasmine Leonard, David Chavis, Davonica Chavis, Tionoa Logan, Ashley Lewis, individually and on behalf of all similarly situated children of unconstitutionally incarcerated parents;

 

Jeffrey Leonard, Devin Square, Craig Williams, James Thompson, Cheyanne Johnson, David Chavis, Todd Logan, Jeffrey Jones, Gary J. Davis, Cleo Merritt, Juan Cruz, Ronald Cohen, individually and on behalf of all persons similarly situated;

 

vs.

 

Hon. Audrey P. Blackburn, AJSC, Hon. F. Lee Forrester, Hon. Rosalie B. Cooper, AJSC, Hon. Thomas W. Cavanaugh, Jr. AJSC, Hon. Louis Locascio, AJSC, 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

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Civil Action

 

On Appeal from a Final Judgment of the Superior Court of New Jersey, Law Division, Mercer County

 

 

 

 

Sat below:

 

Hon. Linda R. Feinberg, AJSC

 

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Appellant's Brief and Appendix

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The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

Attorney for plaintiffs

 

David Perry Davis, Esq.

On the Brief

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Table of Contents

 

Cover Page.................................................. i

Table of Contents.......................................... ii

Table of Authorities...................................... iii

Index to Transcripts....................................... ii

Table of Contents to Appendix.............................. iv

Procedural History.......................................... 1

Statement of Facts.......................................... 4

Preliminary Statement...................................... 11

 

Legal Argument

 

I. THE TRIAL COURT ERRED IN FAILING TO CERTIFY THE PLAINTIFF AND DEFENDANT CLASSES............................. 14

 

II. THE TRIAL COURT ERRED IN HOLDING THAT IT WAS WITHOUT AUTHORITY TO ENTERTAIN A CIVIL RIGHTS SUIT NAMING THE JUDGES OF THE SUPERIOR COURT AS DEFENDANTS............................... 22

 

III. THE TRIAL COURT ERRED IN FAILING TO AWARD COUNSEL FEES AS PLAINTIFFS "PREVAILED" AS THAT TERM HAS BEEN DEFINED BY THE NEW JERSEY SUPREME COURT AND NO "SPECIAL CIRCUMSTANCES" EXISTED TO REBUT THE STRONG PRESUMPTION THAT A PREVAILING 42 USC § 1983 PLAINTIFF IS ENTITLED TO COUNSEL FEES AND COSTS.................................................. 24

 

IV. IF ANY ISSUE IS REMANDED, THIS MATTER SHOULD BE HEARD BY A DIFFERENT JUDGE.............................. 29

 

Conclusion................................................. 30


Table of Authorities

New Jersey Case Law

African Council v. Hadge

255 N.J.Super. 4 (App.Div.1992)....................... 24, 28

Bolyard v. Berman

274 N.J.Super. 565 (App.Div. 1994)........................ 24

Cesare v. Cesare

154 N.J. 394 (1998)....................................... 14

Delgozzo v. Kenny

266 N.J.Super. 169 (App.Div.1993)............. 16, 18, 19, 20

Frank's Chicken House v. Mayor and Council

208 N.J.Super. 542 (App.Div.1986)..................... 24, 28

Gallo v. Gallo

66 N.J.Super. 1 (App.Div.1961)............................ 14

Gregg v. Township Comm.

232 N.J.Super. 34 (App.Div. 1989)..................... 24, 28

Gross v. Johnson & Johnson‑Merck Consumer Pharms. Co.

303 N.J.Super. 336 (Law Div.1997)..................... 16, 18

In re Cadillac V8‑6‑4 Class Action

93 N.J. 412 (1983).................................... 18, 19

Manalapan Realty v. Township Comm.

140 N.J. 366 (1995)....................................... 14

Pascale v. Pascale

113 N.J. 20 (1988)........................................ 14

Riley v. New Rapids Carpet Ctr.

61 N.J. 218 (1972)........................................ 20

Rova Farms Resort, Inc. v. Investors Ins. Co.,

65 N.J. 474 (1974)........................................ 14

Saldana v. City of Camden

252 N.J.Super. 188 (App.Div.1991)......................... 16

Singer v. State

495 N.J. 487 (1984)............................... 25, 26, 27

Stockton v. Rhulen

302 N.J.Super. 236 (App. Div. 1997)................... 24, 28

 


Federal Case Law

Blackie v. Barrack

524 F.2d 891, 901 n. 17 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976)................ 18, 20

Doe v. Charleston Area Medical Center Inc.

529 F.2d 638 (W.Va. 1975)................................. 16

Hensley v. Eckerhart

461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)........ 24

Johnson v. Zurz

596 F.Supp. 39 (N.D.Ohio 1984)............................ 17

Jones v. Diamond

519 F.2d 1090 (5th Cir.1975).............................. 16

Lake v. Speziale

580 F.Supp. 1318 (D.Conn.1984)........................ 17, 23

Mastin v. Fellerhoff

526 F.Supp. 969 (S.D.Ohio 1981)....................... 17, 23

McKinstry v. Genesee County Circuit Judges

669 F.Supp. 801 (E.D.Mich.1987)....................... 17, 23

Nadeau v. Helgemoe

581 F.2d. 275 (1st Cir. 1978)............................. 25

Ridgeway v. Baker

720 F.2d 1409 (5th Cir. 1983)......................... 17, 23

Sevier v. Turner

742 F.2d 262 (6th Cir.1984)........................... 17, 23

W.P. v. Poritz

931 F.Supp. 1187 (D.N.J. 1996)........................ 15, 16

Walker v. McLain

768 F.2d 1181 (10th Cir.App. 1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986)............ 17, 23

Weiss v. York Hospital

745 F.2d 786, 808 (3d Cir.), certiorari denied 105 S.Ct. 1777, 470 U.S. 1060, 84 L.Ed.2d 836 (1984).................. 15, 16

Young v. Pierce

544 F.Supp. 1010 (E.D.Tex. 1982).................. 16, 17, 23

Young v. Whitworth

522 F.Supp. 759 (S.D.Ohio 1981)....................... 17, 23

Younger v. Harris

401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).......... 23

 

 

 

New Jersey Court Rules

R. 1:10-3.......................................................... 4

R. 5:7-5........................................................... 4

R. 4:32-1(a)...................................... 14, 15, 17, 19, 21

 

Federal Statutes

42 U.S.C. § 1983......................................... passim

42 U.S.C. § 1988......................................... passim

 

Other Sources

Class Actions in New Jersey State Courts

Phillip Steven Fuoco, Robert F. Williams, 24 Rutgers L.J. 737, 752 (1993).......................................................... 18

 

Index to Transcripts

 

Transcript 1 [1T ] ‑ Jan 11, 2002 Also attached as Pa 236-264

 

Transcript 2 [2T ] ‑ March 8, 2002 Also attached as Pa 265-273


Table of Contents to Appendix

Civil Case Information Statement................................ Pa 1

Complaint filed November 27, 2001 ........................... Pa 2-13

Order to Show Cause ("osc") filed November 28, 2001......... Pa 14-15

Summons ....................................................... Pa 16

Memorandum of law in support of osc......................... Pa 17-33

Orders on Emergent applications (Exhibit A to Pa 17-33)..... Pa 34-51

Affidavit in support of osc (Jeffrey Leonard)............... Pa 52-53

Affidavit in support of osc (Devin Square).................. Pa 54-55

Affidavit in support of osc (Craig Williams)................ Pa 56-57

Affidavit in support of osc (James Thompson)................ Pa 58-59

Affidavit in support of osc (Cheyanne Johnson).............. Pa 60-61

Affidavit in support of osc (David Chavis).................. Pa 62-63

Affidavit in support of osc (Todd Logan).................... Pa 64-65

Affidavit in support of osc (Jeffrey Jones)................. Pa 66-67

Affidavit in support of osc (Gary J. Davis)................. Pa 68-69

Affidavit in support of osc (Cleo Merritt).................. Pa 70-71

Defendants' Motion to Dismiss in Lieu of Answer (1/2/02).... Pa 72-90

Affidavit Mercer Probation Dept in support of above......... Pa 91-96

Affidavit Monmouth Probation Dept in support of above....... Pa 97-99

Affidavit Ocean Probation Dept in support of above........ Pa 100-104

Plaintiffs' Reply (1/9/02)................................ Pa 105-124

Transcript of Ability to Pay Hearing (James Thompson)..... Pa 125-129

Transcript of Ability to Pay Hearing (Cleo Merritt)....... Pa 130-133

Transcript of Ability to Pay Hearing (Devin Square)....... Pa 134-138

Transcript of Ability to Pay Hearing (Jeffrey Leonard).... Pa 139-142

Transcript of Ability to Pay Hearing (Gary J. Davis)...... Pa 143-146

Transcript of Ability to Pay Hearing (Logan and Davis).... Pa 147-160

Affidavit from Mary Gayle (Mercer County Workhouse)........... Pa 161

Commitment Slip (Gary Davis / MCCC)........................... Pa 162

Transcript of Ability to Pay Hearing (Ronald Cohen)....... Pa 163-169

January 28, 2002 Order.................................... Pa 170-171

Memorandum Opinion in support of 1/28/02 Order............ Pa 172-198

Memorandum from AOC.............................................. 199

Notice of Motion for counsel fees and costs............... Pa 200-211

Certification of Services................................. Pa 212-220

Defendants' opposition.................................... Pa 221-228

Plaintiffs' reply......................................... Pa 229-233

March 25, 2002 Order...................................... Pa 234-235

Transcript of proceedings below (January 11, 2002 - 1T)... Pa 236-264

Transcript of proceedings below (March 8, 2002 - 2T)...... Pa 265-273


Procedural History

On November 28, 2001, plaintiffs filed a complaint in the Chancery Division, General Equity Part, pursuant to 42 U.S.C. §1983 (The Civil Rights Act) (Pa 2-13) along with an order to show cause (Pa 14-15) and several affidavits from the named plaintiffs (Pa 52-71). The gravamen of the complaint and order to show cause was a claim that indigent child support obligors were being detained for long periods of time without an ability to pay hearing being conducted, and that the due process rights of the plaintiffs were being violated by the trial court habitually failing to make a meaningful inquiry into the ability of incarcerated obligors to pay the release amounts set.[1] Procedurally, the complaint sought class action status and counsel fees and costs pursuant to 43 U.S.C. § 1988.

The complaint was sua sponte transferred from the chancery division to the Law Division and the order to show cause was executed by Hon. Linda R. Feinberg, AJSC, and set down for a hearing on January 11, 2002.

On January 2, 2002, defendants filed a motion to dismiss the complaint along with opposition to plaintiffs' order to show cause (Pa 72-90). On January 9, 2002, plaintiffs filed a reply (Pa 105-124).

The Court heard oral argument on the return date (1T, Pa 236-264) and placed its decision on the record, subject to counsel submitting any additional documentation by January 16.

An Order was entered January 28, 2002, granting the majority of the substantive relief sought by plaintiffs. Specifically, the Order compelled defendants to hold initial ability to pay hearings within 72 hours of an obligor's arrest and to review said incarcerations no more than once every two weeks thereafter. While expressing grave concerns as to the sufficiency of the findings being made at said ability to pay hearings, the trial court held that it was without authority to certify the proposed defendant class and to address whether the actions of fellow trial court judges were violative of the plaintiffs' civil rights (1T 21-22 to 21-23, Pa 246). Procedurally, the court held that class action status was not appropriate (Pa 172-198).

On February 11, 2002, plaintiffs filed a motion for counsel fees and costs pursuant to 42 U.S.C. § 1988 (Pa 200-211). Defendants opposed the motion (Pa 221-228). Plaintiffs replied to the opposition on February 28, 2002 (Pa 229-233). The Court held oral argument on March 8, 2002 (2T, Pa 265-273) and issued an order denying plaintiffs' request for counsel fees and costs on March 25, 2002.

The appeal was filed along with a motion to extend time to file same on May 31, 2002. A subsequent motion to extend the time to file this brief was granted on November 13, 2002.


Statement of Facts

Each year in New Jersey, there are over 50,000 child support enforcement hearings scheduled by county probation departments. (Pa 179). Pursuant to R. 5:7-5, the court is authorized to issue an arrest warrant for obligors who fail to appear for said hearings. If at an enforcement hearing a court determines that an obligor has the current ability to make a lump-sum payment toward support arrears, the court is authorized pursuant to R. 1:10-3 to order the coercive incarceration of the obligor until payment is made.

The incarceration itself is not challenged. It is undisputed that coercive incarceration may in some instances be an appropriate, fully constitutional method of forcing a recalcitrant but able obligor to comply with a valid child support Order. What is challenged is the violation of the plaintiffs' due process right to have a hearing reviewing their incarceration within a reasonable time period, and defendants' continuous abrogation of the law (and, therefore, plaintiff's civil rights) insofar as it requires the trial court to set a release amount actually tied to the ability to pay of the defaulting obligor.

Prior to the January 28, 2002 Order in this matter, many defaulted child support obligors were being arrested and held without review for periods that the trial court found violated due process (2T 13-23[2], Pa 272). Others were given hearings that were "ability to pay hearings" in name only and where no inquiry whatsoever was made into their ability to pay the release amount set by the court (Pa 125-160).

Beginning in September of 2001, the named plaintiffs in this matter were arrested as a result of their failure to pay court-ordered child support or for their failure to appear at an enforcement hearing (Pa ). On November 23, 2001 when affidavits were executed by the plaintiffs, the named plaintiffs had been incarcerated for an average of 48 days each.[3] Half of them had never been provided an ability to pay hearing (Pa 62-63, 66-67, 60-61).

Those who had been granted ability to pay hearings were having their incarcerations reviewed on a sporadic basis at best. Exactly how regularly the reviews occurred was a contested question below. Although a representative from the Mercer County Probation Department testified that reviews occurred every two weeks (1T 38-17 to 39-10. Pa 255), the affidavits filed by plaintiffs indicated far longer periods (Pa 52-71). At the hearing on plaintiffs' application for an order to show cause, the trial court refused to take testimony from the plaintiffs who were present in Court,[4] permitting only witnesses brought by the defense to speak.[5]

Subsequent to oral argument on January 11, on the court's invitation to supply further documentation, plaintiffs obtained and supplied transcripts from enforcement hearings involving the named plaintiffs. The testimony of the probation officers at those enforcement hearings demonstrated unequivocally that it was at least a month between reviews.[6] Nonetheless, the court found that plaintiffs were only held "for as long as two weeks" without review (1T 41-4 to 41-6, Pa 256).

Of more importance, at the "ability to pay" hearings, there was no inquiry into the ability of the defaulted obligors to pay the release amounts set by the court, thus removing the constitutional justification for a "coercive" incarceration (Pa 52-71, 125-160).

The issue of whether the plaintiffs were even incarcerated as a result of their failure to pay support was also contested below. The Mercer County Probation Department filed a certification stating[7] that "No Obligor is incarcerated for non-payment of child support without first having an ability to pay hearing" (Pa 95, ¶8 and Pa 96 ¶9) and claiming that all the named plaintiffs were being held as a result of their failure to appear, not their inability to pay the release amount set (Pa 94-96, ¶7 and 8).

When the court invited additional submissions following the hearing, plaintiffs obtained and submitted the transcripts of the Ability to Pay hearings conducted in Mercer. Each and every transcript reveals plaintiffs who were held for lengthy periods of time (well in excess of two weeks) and each hearing results in the establishment of a release amount without a scintilla of evidence that the obligor had the ability to pay same (Pa 125-160).

The Monmouth County probation department filed a similar certification stating that Ronald Cohen was arrested after failing to appear for a child support enforcement hearing scheduled by probation, and not as a result of his failure to pay child support (Pa 98). This was simply false. Plaintiffs submitted the transcript from the hearing wherein Mr. Cohen was incarcerated, which demonstrated that he was in Court that day to argue a motion he filed to reduce his support (Pa 164 and Pa 38) and that he was incarcerated for nonpayment, in direct contradiction to the statement that "Mr. Cohen was not incarcerated for non-payment of child support" (Pa 99 at ¶7). Mr. Cohen never failed to appear for a hearing. In spite of this indisputable evidence that the Monmouth certification was incorrect, the trial court relied on it as well.

The Ocean County certification (Pa 100-104) was edited by the affiant before being faxed back and submitted to the court. It does not even claim that Ocean County was only holding obligors who had failed to appear (Pa 103). Instead, the Certification actually admits the allegations of plaintiffs' Complaint that members of the plaintiff class are incarcerated without the existence of evidence that the obligors had the ability to pay, stating:

... The obligor would may be given the opportunity at this hearing to present evidence and testimony concerning his or her ability pay .... If a legitimate inability to pay is demonstrated, the Obligor would may not be incarcerated.[8]

Following the brief hearing on January 11, the trial Court entered an order requiring that, prospectively, all arrested child support obligors would be initially reviewed within 72 hours of their arrest and no more than every two weeks thereafter. The court "didn't dispute that" there is a problem with the adequacy of the inquiry being made at ability to pay hearings (1T 21-14, PA 246), but held that it was without authority to certify the proposed defendant class and to address the issue (1T 21-16 to 21-24, Pa 246).

Having prevailed on the central issues of the complaint, plaintiffs filed an application for counsel fees and costs. Same was denied by the court on March 25, 2002.

Plaintiffs appeal those portions of the trial court's January 28, 2002 and March 25, 2002 orders that (1) denied class action status (2) held that a trial court cannot entertain a civil rights suit where the defendant class consists of fellow trial court judges, and, (3) denied plaintiffs' application for counsel fees and costs.


Preliminary Statement

This Court is asked to reverse the trial court's determination that class action status was not appropriate, to certify the classes, and to make the relief ordered by the trial Court as to the timing of hearings applicable to the entire defendant class. The record before this Court also establishes that the plaintiff class has not received meaningful ability to pay hearings. This Court should order that indigent child support obligors receive a hearing that is an ability to pay hearing in more than name only.

For this Court to so order requires no factual inquiry that would take this court outside its role as a court of review.

As noted above, many of the factual findings of the trial court (as to the length of time obligors were held without a hearing and the length of time between hearings) were not based in substantial, credible evidence in the record. They were, in fact, contradicted by the record. However, even without disturbing the factual findings made below, it is urged that the trial Court was correct that a "bright-line rule" (2T 14-17, Pa 272) should exist whereby defaulted child support obligors are reviewed within 72 hours of their initial arrest and every two weeks thereafter to ensure that any incarcerations remain "coercive." As requested, the Court should have reinforced that, both at an initial enforcement hearing where incarceration is considered, and on a subsequent review, the burden is on the party seeking to incarcerate a judgment debtor to "demonstrate to the court that the judgment debtor has assets that have been secreted or otherwise placed beyond the reach of execution."[9]

As the classes should have been certified, the relief granted by the trial court on January 28, 2002 should be made applicable to the entire defendant class.

Second, the record demonstrates that the level of inquiry into the ability of plaintiffs to pay the release amounts being set was constitutionally inadequate. Again, the trial court did not find otherwise, expressing "I've reviewed those transcripts, and I have some concerns about the level of inquiry by the judges. I don't dispute that" (1T 21-14 to 21-17, Pa 246).

It is the trial court's subsequent legal conclusion that it could not entertain a class action where the defendant class consists of the named Judges "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" that is challenged herein. As discussed below, this defendant class has been certified in a great number of published cases brought under 42 U.S.C. § 1983 and, contrary to the opinion expressed below, it does not require a trial court "to act as an appellate court." (1T 21-14 to 21-17, Pa 246).

Finally, this Court is asked to reverse the trial court's determination that an award of counsel fees was inappropriate. Even without addressing the issue of the certification of the classes, plaintiffs' suit resulted in the "bright line rule" of 72 hour review and review of incarcerations every two weeks thereafter, and the trial Court found that this rule was required "as a matter of procedural due process." (2T 14-23 to 14-24, Pa 272). There is a strong public policy in our State in favor of the vindication of civil rights especially when, as here, the plaintiff class by definition is indigent and otherwise unable to pursue a remedy to a civil rights violation.


J LEGAL ARGUMENT

I. THE TRIAL COURT ERRED IN FAILING TO CERTIFY THE PLAINTIFF AND DEFENDANT CLASSES.

The general rule is that findings of a trial Court are binding on appeal when supported by adequate, substantial and credible evidence. Pascale v. Pascale, 113 N.J. 20, 33, (1988) (citing Gallo v. Gallo, 66 N.J.Super. 1, 5, (App.Div.1961)), Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). It is not the role of the Appellate Division to re‑weigh the factual determinations of the trial court, which alone has the opportunity to view the demeanor of and judge the credibility of witnesses. Cesare v. Cesare, 154 N.J. 394, 416 (1998).

However when, as here, the issue on appeal concerns an issue of law and not a question of fact, review by the Appellate Division is de novo. Manalapan Realty v. Township Comm., 140 N.J. 366, 378 (1995).

The certification of class actions is controlled by R. 4:32‑1(a), which requires that a class should be certified when the requirements of numerosity, typicality, and adequacy of the named representatives are met. The record demonstrates that the putative class satisfies each and every requirement of the Rule.

As to numerosity

Initially, as to the class, it was not disputed that, as to both the putative plaintiff and defendant class the "(1) the persons affected are so numerous that joinder of all parties is impracticable." The trial Court noted on the record that, as to a plaintiff class of defaulted child support obligors, "there are thousands and thousands of cases every year" (1T 18-8 to 18-14, Pa 245), and in its written decision that "there are over 50,000 child support enforcement hearings each year." (Pa 180-181).

A. As to numerosity of the proposed defendant class

In finding that plaintiffs had not alleged sufficient numerosity to warrant class action status, the court held that "production of transcripts from approximately ten child support enforcement hearings falls short of satisfying the numerosity requirement set forth in R. 4:32-1(a)."

The trial court erred in focusing on how many transcripts had been produced or on the number of named plaintiffs. When considering whether a putative plaintiff class has established numerosity, a court is to focus on the allegations of the complaint, not how many named plaintiffs had firmly established their entitlement to relief at a preliminary hearing on an order to show cause. The court's finding that there were over 50,000 hearings annually, in conjunction with a complaint naming 12 plaintiffs "individually and on behalf of all persons similarly situated" satisfies the numerosity requirement of the Rule. See, e.g. W.P. v. Poritz, 931 F.Supp. 1187 (D.N.J. 1996), Weiss v. York Hospital, 745 F.2d 786, 808 (3d Cir.), certiorari denied 105 S.Ct. 1777, 470 U.S. 1060, 84 L.Ed.2d 836 (1984).

Especially in a civil rights context, even "speculative and conclusory representations" as to the size of the class suffice as to the requirement of many. Doe v. Charleston Area Medical Center, Inc.,, 529 F.2d 638 (W.Va. 1975), Young v. Pierce, 544 F.Supp. 1010 (E.D.Tex. 1982), Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir.1975).

Plaintiffs exceeded the standard for establishing numerosity.

B. As to numerosity of the proposed defendant class

As to defendant class, the trial court noted that there were, as of January 14, 2002, "126 judges assigned to the Family Part." (Pa 181).

While it might be possible to serve each and every sitting Family Part judge individually, to establish the numerosity element, plaintiffs are not required to show that it would be "impossible" to join all members, but only that such joinder would be "difficult", "inconvenient" or "impracticable." See, e.g., W.P. v. Poritz, 931 F.Supp. 1187 (D.N.J. 1996), Weiss v. York Hospital, 745 F.2d 786, 808 (3d Cir.), certiorari denied 105 S.Ct. 1777, 470 U.S. 1060, 84 L.Ed.2d 836 (1984, Saldana v. City of Camden, 252 N.J.Super. 188, 193 (App.Div.1991) (potential class of 81 members sufficient to establish numerosity), Gross v. Johnson v. Johnson, 303 N.J.Super. 336 (Law.Div. 1997), Delgozzo v. Kenny, 266 N.J.Super. 169, 181, (App.Div.1993).

Moreover, where, as here, the defendants would in any case be represented by the same entity (the office of the Attorney General), a class action is the appropriate vehicle for raising a civil rights challenge to an ongoing practice. Finally, civil rights challenges to judicial practices have routinely been certified as a class in a wide variety of contexts. See, e.g., Lake v. Speziale, 580 F.Supp. 1318 (D.Conn. 1984), Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981), Walker v. McLain, 768 F.2d 1181 (10th Cir.App. 1985), cert.denied, 474 U.S. 1061, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984), Ridgeway v. Baker, 720 F.2d 1409 (5th Cir. 1983), McKinstry v. Genesee County Circuit Judges, 669 F.Supp. 801 (E.D.Mich.1987), Johnson v. Zurz, 596 F.Supp. 39 (N.D.Ohio 1984), Young v. Whitworth, 522 F.Supp. 759 (S.D.Ohio 1981).

In its written decision, the trial court again focused on the number of named defendants, holding that "naming only five judges in three counties" was insufficient to satisfy the numerosity requirement, again ignoring that the complaint named the judges "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." (Pa 2-13).

The trial Court erred in holding that the putative defendant class did not satisfy the numerosity requirement of R. 4:32-1(a).

As to commonality

In order to be certified as a class, the complaint must allege that "there are common questions of law and fact." R. 4:32-1(a)(2). The trial court did not address this factor as to the putative defendant class and found that it did not exist as to the putative plaintiff class.

In finding that the plaintiff class had not satisfied the commonality requirement of the Rule, the court stated "But there -- the commonality is really -- every case is fact sensitive, is different" (T18-8 to 18-12), and in its written decision:

With respect to commonality, the plaintiffs acknowledge "the precise underlying facts surrounding each case may differ." As result, there is no commonality amongst the proposed plaintiff class.

When determining whether a putative class has established sufficient commonality, the focus should not be on whether there are differences between individual cases. There will always be factual differences between different cases; the question is whether the class as a whole raises "at least one common question of law or fact." Gross v. Johnson & Johnson‑Merck Consumer Pharms. Co., 303 N.J.Super. 336, 342 (Law Div.1997). See also, In re Cadillac V8‑6‑4 Class Action, 93 N.J. 412 (1983), Phillip Steven Fuoco, Robert F. Williams, Class Actions in New Jersey State Courts, 24 Rutgers L.J. 737, 752 (1993).

The complaint alleged that each and every plaintiff had either been incarcerated without an ability to pay hearing at all or without having been afforded a constitutionally adequate hearing. This allegation must be accepted as true when a court is asked to certify a class, and establishes the required commonality for class certification. Delgozzo v. Kenny, 266 N.J.Super. 169, 181 (App.Div.1993)(quoting Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976)).

As to typicality

A plaintiffs claim satisfies the typicality requirement for purposes of class certification if it arises from the same event or course of conduct which has given rise to claims of other class members. In re Cadillac V8‑6‑4 Class Action, 93 N.J. 412, 425 (183.

The complaint alleges a course of conduct - that plaintiffs were either not granted timely ability to pay hearings, that they were not granted ability to pay hearings at all, or that, when a hearing was held, the release amount set was not tied to the ability of plaintiffs to pay same, thus depriving the resulting incarcerations of their coercive nature and removing its legal justification (Pa 2-13).

Again, at what should have been an early stage of the process, plaintiffs were entitled to every reasonable inference that could be drawn from their complaint. Delgozzo v. Kenny, 266 N.J.Super. at 181. It is respectfully suggested that, considering the transcripts, affidavits, and admissions contained in the Probation Department's certifications, plaintiffs far exceeded the minimum requirement for typicality.

As to adequacy

The last requirement of R. 4:32‑1(a) is a showing that the parties will fairly and adequately represent the interests of the class. "Adequacy is presumed in New Jersey courts, and the burden is on the opposing party to demonstrate that the proposed representation will be inadequate." Delgozzo v. Kenny, 266 N.J.Super. 169, 181 (App.Div.1993).

There was no discussion as to adequacy during oral argument, and defendants written opposition asserted only:

Plaintiffs offer only conclusory statements with no substantive proof. This also speaks to Plaintiffs' ability to represent all the members of the proposed Plaintiff Class . . . Without discovery, Plaintiffs have no evidence to support their contention that they can adequately represent the proposed Plaintiff Class. (Pa 88-89).

The trial court decision comments only briefly on adequacy, stating:

Plaintiffs cannot simply generalize that all parents have had the same experience as the named plaintiffs. As a result, it is impossible to ascertain whether or not the representative parties will fairly and adequately represent the interests of the class (Pa 182).

The standard on these issues has been clearly established by case law. The burden to disprove adequacy was on defendants, and "[t ]he court is bound to take the substantive allegations of the complaint as true". Delgozzo v. Kenny, 266 N.J.Super. 169, 181 (App.Div.1993)(quoting Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976)). The court is required to give plaintiffs "every favorable view" of plaintiffs' complaint and the record. Riley v. New Rapids Carpet Ctr., 61 N.J. 218, 223 (1972).

Again, in light of the transcripts, affidavits, and admissions contained in the record, it is respectfully suggested that plaintiffs far exceeded the minimum requirement for adequacy.

 

As to 4:32-1(b)

Finally, R. 4:32-1(b) requires that, in addition to satisfying the four requirements discussed above, a putative class must satisfy at least one of the requirements contained in subsection (b) of the Rule. Plaintiffs maintain that they satisfy all of the provisions contained in 4:32-1(b), not simply one of requirements. Certainly, plaintiffs met the standard that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."

The complaint alleged that the plaintiff class had either been incarcerated without an ability to pay hearing at all or without having been afforded a constitutionally adequate hearing. The trial Court did not address section (b)(2), presumably as it found that proceeding as a class action was not appropriate under 4:32-1(a).

This is a question of law, not fact. In view of the allegations of the complaint and the proofs thus far adduced, it is respectfully suggested that R. 4:32-1(b) was satisfied.


II. THE TRIAL COURT ERRED IN HOLDING THAT IT WAS WITHOUT AUTHORITY TO ENTERTAIN A CIVIL RIGHTS SUIT NAMING THE JUDGES OF THE SUPERIOR COURT AS DEFENDANTS.

 

The trial Court held that it was without authority to address the adequacy of ability to pay hearings as doing so would require the court to sit as an appellate court over fellow trial court judges:

MR. DAVIS: ... 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 .... 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. (T21-8 to 21-23).

The trial Court was not being asked to sit as a court of review in any of the other matters involving the named plaintiffs. Plaintiffs conceded that this would clearly be asking the trial Court to exceed its authority.

Leonard et al v. Blackburn et al MER-L-3761-01, is a completely collateral matter to any of the cases involving the named plaintiffs. The trial Court did have the authority to address a civil rights complaint for injunctive and declarative relief. Collateral suits challenging ongoing court practices are a commonplace method of bringing a civil rights challenge and judges are routinely certified as a class. See, e.g., Lake v. Speziale, 580 F.Supp. 1318 (D.Conn.1984), Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981), Walker v. McLain, 768 F.2d 1181 (10th Cir.App. 1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984), Ridgeway v. Baker, 720 F.2d 1409 (5th Cir. 1983), McKinstry v. Genesee County Circuit Judges, 669 F.Supp. 801 (E.D.Mich.1987), Johnson v. Zurz, 596 F.Supp. 39 (N.D.Ohio 1984), Young v. Whitworth, 522 F.Supp. 759 (S.D.Ohio 1981).

Almost parenthetically, it should be noted that this matter could not be filed in federal court as there are pending proceedings as to the named plaintiffs which would require the district court to abstain under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

Even if there were no pending proceedings, there is presently an unpublished opinion holding that the mere existence of UIFSA and the family court contempt process warrants abstention from any issue regarding the enforcement of child support. Anne Pasqua, et al v. Hon. Gerald Council, Civil Action No. 00CV-2418, Third Circuit Docket No. 01-2735.[10]

Plaintiffs had no choice but to bring this matter in state court; for the trial Court to hold that it could not address the civil rights issues raised in the complaint literally leaves the plaintiffs with no forum to press their claim.


III. THE TRIAL COURT ERRED IN FAILING TO AWARD COUNSEL FEES AS PLAINTIFFS "PREVAILED" AS THAT TERM HAS BEEN DEFINED BY THE NEW JERSEY SUPREME COURT AND NO "SPECIAL CIRCUMSTANCES" EXISTED TO REBUT THE STRONG PRESUMPTION THAT A PREVAILING 42 USC § 1983 PLAINTIFF IS ENTITLED TO COUNSEL FEES AND COSTS.

Once a plaintiff in a civil rights action "is successful on any significant issue," fees are ordinarily granted as a matter of course "unless special circumstances would make the award unjust." Stockton v. Rhulen, 302 N.J.Super. 236, 241 (App. Div. 1997), citing Frank's Chicken House v. Mayor and Council, 208 N.J.Super. 542, 545 (App.Div.1986), African Council v. Hadge, 255 N.J.Super. 4, 11-12, (App.Div.1992). Both the United States and New Jersey Supreme Courts have held that "a prevailing plaintiff 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" Bolyard v. Berman, 274 N.J.Super. 565 (App.Div. 1994), citing Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). See also, Gregg v. Township Comm., 232 N.J.Super. 34, 39 (App.Div. 1989).

In Gregg v. Township Comm., 232 N.J.Super. 34, 39 (App.Div. 1989), the Appellate Division held "it was the intent of Congress in enacting section 1988 to require an award of fees in all but exceptional cases in order to encourage litigants to vindicate civil rights violations.... Thus, unless the trial judge advances a viable reason for the denial of fees, a denial must be reversed."

The trial Court's January 28, 2002 Order held, in relevant part, "...it is further ordered that Plaintiffs' application for declaratory judgment is PARTIALLY GRANTED..." The Order then imposed a new requirement that all defaulted child support obligors be reviewed within 72 hours of their arrest and every two weeks thereafter. In the matter before the court, the trial judge did not advance any exceptional circumstances warranting the denial of plaintiffs' subsequent application for counsel fees and reimbursement of the out-of-pocket costs.

In denying plaintiffs' application for counsel fees, the court found that plaintiffs had not prevailed under the two-pronged test set forth by the New Jersey Supreme Court in Singer v. State, 495 N.J. 487 (1984). The record below unequivocally demonstrates that both prongs of Singer were satisfied, that no exceptional circumstances existed, and, therefore, plaintiffs request for reasonable counsel fees and reimbursement of out-of-pocket costs should have been granted.

1. Plaintiffs satisfied the first prong of Singer v. State

The first prong of Singer requires a plaintiff to demonstrate a nexus between the litigation and the relief ultimately achieved, "meaning that plaintiffs' case was a necessary and important factor in achieving the relief granted." (2T 11-XX to 11-XX), Singer v. State, 495 N.J. at 495 quoting Nadeau v. Helgemoe, 581 F.2d. 275, (1st Cir. 1978).

The transcript from oral argument is somewhat confusing on this point. The trial Court makes contradictory findings, first concluding that "plaintiffs have failed to satisfy the first prong of Singer." (2T 12-XX to 12-XX). To support this legal conclusion, the trial court found that "the named defendants did not deviate from established procedure." (2T ).

Initially, neither prong of the Singer test requires a trial court to determine if a court deviated from established procedure. The complaint in this matter claimed that the established procedure (whereby defaulted child support obligors were held for weeks or months without being afforded an ability to pay hearing) was violative of due process (Pa 2-13). The trial court apparently agreed, ordering that due process required that an initial ability to pay hearing occur within 72 hours, and that reviews of coercive incarcerations occur at least every two weeks thereafter (Pa 170-171).

The issue was not whether defendants had deviated from the established procedure, it was whether the established procedure comported with due process. In granting the relief sought by plaintiffs and imposing the 72 hour review rule as a matter of due process, the court found that the "established procedure" was improper. The named defendants "compliance with the standard procedure" was irrelevant.

In direct contradiction to its conclusion that plaintiffs failed to satisfy the first prong of Singer, the court held:

It is undisputed that as to Mercer County, the litigation filed by the plaintiffs changed the timing of the hearings for those obligors arrested in Mercer County on failure to appear warrants. As a result, there is a nexus between the litigation and the relief ultimately achieved (2T ).

 

The court correctly found that "there is a nexus between the litigation and the relief ultimately achieved." This finding, (the only finding that the record supports) satisfies the first prong of Singer and requires reversal of the court's contrary legal conclusion.

2. Plaintiffs satisfied the second prong of Singer v. State

The second prong of Singer requires that, to be awarded counsel fees and costs, the plaintiffs "must establish that the relief granted had some basis in law." Singer at 419. In this matter, the Complaint was brought under the Civil Rights Act, 42 USC § 1983 and asserted a violation of the due process clause (Pa 2-13).

When granting plaintiffs' request that the court address the failure of the defendants to schedule ability to pay hearings within a reasonable time following a defaulted obligors arrest, the court relied on plaintiffs' due process rights:

Prior to this decision, there was no rule or court rule, or any other regulation that set forth those specific requirements and although the court did in reaching its decision and in developing the 72 hour time period, did premise its conclusion on procedural due process. (2T ).

 

The court correctly found that the court's ruling was "premised on procedural due process." This finding, (the only finding that the record supports) satisfies the second prong of Singer and requires reversal of the court's contrary legal conclusion.

Both prongs of Singer having thus been satisfied, and no exceptional circumstances having even been alleged to justify the denial of plaintiffs' application, this Court should reverse the lower Court's denial of plaintiffs' reasonable request for counsel fees and reimbursement of out-of-pocket costs. Gregg v. Township Comm., 232 N.J.Super. 34, 39 (App.Div. 1989), Stockton v. Rhulen, 302 N.J.Super. 236, 241 (App. Div. 1997), citing Frank's Chicken House v. Mayor and Council, 208 N.J.Super. 542, 545 (App.Div.1986), African Council v. Hadge, 255 N.J.Super. 4, 11-12, (App.Div.1992).


IV. IF ANY ISSUE IS REMANDED, THIS MATTER SHOULD BE HEARD BY A DIFFERENT JUDGE

While not strictly a matter of disqualification, the appellate court has the authority to direct on a remand by it that a different judge consider the matter in order to preserve the appearance of a fair and unprejudiced hearing. See, e.g., Carmichael v. Bryan, 310 N.J. Super. 34, 49, (App. Div. 1998). Although not as a result of a full and fair hearing, the lower Court made findings that indicate that a "fresh judicial examination." is warranted. See R. 1:12‑1(f).

In In re Baby M., 109 N.J. 396, 463, (1988), reversing 217 N.J.Super. 313, (Ch. Div. 1987), the Supreme Court cited the trial judge's "potential 'commitment to its findings'" to support a determination that a different should hear a matter on remand. The Appellate Division also has remanded cases to be heard by a different judge on several occasions. See, e.g., P.T., A.T. and H.T. v.M.S., 325 N.J.Super. 193, 222 (App. Div. 1999); New Jersey Division of Youth and Family Services. v. A.W., 103 N.J. 591, 617, (1986); J.L. v. J.F., 317 N.J.Super. 418, 438, (App. Div. 1999); Carmichael v. Bryan, 310 N.J.Super. 34, 49 (App.Div.1998).

It is respectfully requested that, in light of the trial court's potential commitment to its findings, that (should any issue in this matter be remanded), same should be heard by a different judge.


Conclusion

For the reasons stated herein, this Court should reverse those portions of the trial court's January 28, 2002 and March 25, 2002 orders that (1) denied class action status (2) held that a trial court cannot entertain a civil rights suit where the defendant class consists of fellow trial court judges, and (3) denied plaintiffs' application for counsel fees and costs.

 

Respectfully submitted,

 

 

David Perry Davis, Esq.



[1] The complaint also asserted that the rights of the children of the incarcerated parents to a relationship with their parents was being infringed. As any relief granted to the parents would also address the interests of the children, that issue is not pursued on appeal.

[2] THE COURT: ... the Court did in reaching its decision and in developing the 72 hour time period, did premise its conclusion on procedural due process (2T 14-23 to 14-24, Pa 272).

[3] Summary of plaintiffs' affidavits in support of order to show cause (Pa 52-71) and transcripts of ability to pay hearings 125-160, 163-169):

 

Name of obligor

Arrest date

Days in jail as of filing of complaint

Review(s)

Release amount set

Jeffrey Leonard

9/19

65

2

500

Devin Square

9/30

54

1

3500

Craig Williams

9/3

81

0

8000

James Thompson

9/28

56

1

2000

Cheyanne Johnson

11/13

10

0

None set

David Chavis

10/26

28

0

None set

Todd Logan

10/3

51

0

2000

Jeffrey Jones

10/5

49

0

None set

Gary J. Davis

9/28

56

1

2000

Cleo Merritt

10/15

39

1

1000

 

[4] MR. DAVIS: Judge, in the courtroom right now is Todd Logan . . . and one of the other [named ] plaintiffs and, Your Honor, these people were sitting in here with -- $10,000 release amounts . . . and 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 (1T 26-14 to 27-2, Pa 249).

[5] THE COURT: . . . You have some people from probation?

MS. STOOP: I do, Your Honor.

THE COURT: I'd like to ask just a couple of questions . . . Come on up here, and Mr. Davis I'll give you an opportunity to ask any questions that you'd like, as well (1T 36-14 to 37-5, Pa 254).

[6] "This is a remand matter and Mr. Leonard was last heard before Your Honor October 11, 2001." Transcript of November 15, 2001 hearing (34 days), Pa 139.

 

"This is a remand hearing, Your Honor. Mr. Davis was last heard before Judge Blackburn . . . on November 15th." Transcript of December 14 2001 hearing (29 days), Pa 155.

[7] All the certifications submitted by defendants focus strongly on plaintiffs having been arrested for their failure to appear rather than for failing to pay. The transcripts from the actual Ability to Pay hearings demonstrate why each was being held (Pa 125-160) and contradict the claims made in the certifications from Probation. More importantly, this issue is completely irrelevant. The issues raised by the complaint and order to show cause are (1) whether the findings made in support of "coercive" incarceration orders are constitutionally adequate, and (2) how long it takes to have an ability to pay hearing scheduled, both initially after arrest and then to review whether the incarcerations remain "coercive"(Pa 2-13). The complaint raises no issue concerning the reason for initial arrest.

[8] This statement again inverts the correct legal standard by placing the burden on the obligor to show an inability to pay a release amount.

[9] In an unpublished opinion, the Appellate Division established that, "after twelve days" of incarceration, it could be presumed that a jailed obligor did not have the ability to secure his own release (Pa 41).

[10] Oral argument in the Third Circuit Court of Appeals was held in April of 2002, but no decision has been issued.