The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

(732) 274‑2050 (fax)

Attorney for plaintiff class

──────────────────────────────────────

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;

 

     Plaintiffs

 

         vs.

 

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

 

     Defendants

::::::::::::::::::::::::::::::::::

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION

GENERAL EQUITY PART

MERCER COUNTY

DOCKET NO.

 

 

 

 

     Civil Action

 

 

 

ORDER TO SHOW CAUSE

(Without temporary restraints)

 

 

 

 

 

 

──────────────────────────────────────

 

TO:  John J. Farmer, Jr.

     Attorney General of New Jersey

     Division of Law

     Hughes Justice Complex

     25 Market Street

     Trenton NJ 08625  

 

     THIS MATTER having been opened to the Court on application of plaintiff class, David Perry Davis, Esq., appearing, for an Order to Show Cause, and notice having been given to defendants, John J. Farmer, Esq., Attorney General, appearing, and the Court having read and considered the Certification annexed hereto, and it appearing therefrom that substantial and irreparable harm shall occur in the absence of such relief and before a formal Notice of Motion can be filed and heard,

     IT IS, on this         day of    November  ,   2001  , hereby Ordered that Plaintiff shall show cause on the            day of    November  ,  2001  , at     :      before the Hon.                     , J.S.C., located at the Superior Court of New Jersey, Chancery Division, why an Order should not be entered:

 

     1.  Certifying the proposed plaintiff class;

 

     2.  Certifying the proposed defendant class;

 

     3.  Enjoining the defendant class from incarcerating any member of plaintiff class absent a showing, based on substantial and credible evidence, that said member of plaintiff class has the ability to pay the release amount set;

 

     4.  Granting a Preliminary Injunction compelling the defendants to immediately release all currently incarcerated plaintiffs pending an ability to pay hearing, or, in the alternative, to conduct a proper ability to pay hearing within 24 hours.

 

IT IS FURTHER ORDERED:

 

     That a copy of the within Order to Show Cause be served upon defendants within             days hereof.

 

     That counsel for defendants shall file and serve any opposing papers no later than ____________, and plaintiff's reply, if any, shall be filed and served no later than              .

 

 

 

 

 

                                                                                              ______________________________

                                      Hon.              , JSC 


 The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

(732) 274‑2050 (fax)

Attorney for plaintiff class

──────────────────────────────────────

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;

 

     Plaintiffs

 

         vs.

 

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

 

     Defendants

::::::::::::::::::::::::::::::::::

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION

MERCER COUNTY

GENERAL EQUITY PART

DOCKET NO.

 

 

 

 

     Civil Action

 

 

 

 

 

 

 

 

 

 

 

──────────────────────────────────────

 

──────────────────────────────

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' APPLICATION FOR AN ORDER TO SHOW CAUSE

 

──────────────────────────────────────

 

                                      David Perry Davis, Esq.

                                                 On the brief


                      TABLE OF CONTENTS

 

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

 

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

 

Statement of facts......................................... 1

 

Argument

 

   Point I:   PLAINTIFF CLASS SHOULD BE CERTIFIED PURSUANT TO RULE 4:32-1(a)......................................... 4

 

   Point II:  DEFENDANT CLASS SHOULD BE CERTIFIED  PURSUANT TO RULE 4:32-1(a)........................................ 9

 

   Point III: THE COURT SHOULD ISSUE A PRELIMINARY INJUNCTION AGAINST THE UNCONSTITUTIONAL PRACTICES OF DEFENDANT CLASS.

 

Conclusion................................................ 11


                     TABLE OF AUTHORITIES

                           CASE LAW

Biddle v. Biddle, 150 N.J.Super. 185 (Ch.Div. 1977)........ 5

Cerro Metal Products v. Marshall, 620 F.2d 964, 972 (3d. Cir. 1980) 10

 

City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)................................................ 11, 12

 

Continental Group Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356‑57 (3d Cir. 1980)................................................ 10

 

Department of Health v. Roselle, 34 N.J. 331 (1961)........ 5

 

Doe v. Charleston Area Medical Center, Inc., C.A.4 (W.Va.) 1975, 529 F.2d 638........................................................ 4

 

Erdman v. Stevens, 458 F.2d 1205, 1208 (2nd Cir.1972), cert. denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972).............. 5

 

Federbush v. Federbush, 5 N.J.Super. 107, (App.Div.1949)... 5

 

Lake v. Speziale, 580 F.Supp. 1318 (D.Conn.1984)........... 9

 

Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981)...... 9

 

Pierce v. Pierce, 122 N.J.Super. 359 (App.Div. 1973)....... 5

 

Saltzman v. Saltzman, 290 N.J.Super. 117 (App.Div. 1996)... 5

 

W.P. v. Poritz, 931 F.Supp. 1187 (D.N.J. 1996)............. 4

 

Young v. Pierce, E.D.Tex. 544 F.Supp. 1010 (1982).......... 4

 

                       FEDERAL STATUTES 

 

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


                      STATEMENT OF FACTS

     This matter arises as a result of defendants' orders resulting in the incarceration of a group of noncustodial parents for their nonpayment or underpayment of court-ordered financial child support.  As explained herein, the incarcerations are alleged to be "coercive", yet in each case the incarcerated parent either has not had a release amount set at all or has had a release amount set without the constitutionally required finding that the obligor has the present ability to pay same.  In most of these cases, there was not even an inquiry as to the ability of the prisoner to pay the release amount set by the Court.  Accordingly, the jailings are not legitimate coercive incarcerations, but improper, punitive deprivations of liberty.

     There are two groups of plaintiffs.  The first consists of the children of said noncustodial parents.  These children have a constitutional right to a form of child support deeper than money - the love, care, and companionship of their parents.  This right is fundamental and is being violated by defendants class' arbitrary and improper establishment of release amounts for the children's parents.  Secondarily, these children have a right to financial child support from their parents.  While the legitimate goal of coercive incarceration serves this right, the illegitimate punitive incarcerations imposed by defendants deprives the noncustodial parents of the ability to earn money or seek employment to support said children.

     The second set of plaintiffs are the noncustodial parents who are in default on their court-ordered child support obligations.  Many of the named plaintiffs are now "coercively" incarcerated.  The incarceration itself is not challenged.  It is undisputed that coercive incarceration may in some instances be an appropriate and fully constitutional method of forcing a recalcitrant but able obligor to comply with a valid child support Order. 

     What is challenged herein is the defendant class' continuous abrogation of the law insofar as it requires the trial court to set a release amount actually tied to the ability to pay of the defaulting obligor.  All of the plaintiffs presented have had release amounts set that they are not able to pay, and all the plaintiffs whose cases have been reviewed were subjected to hearings where no meaningful inquiry into their ability to pay was made.[1]

     The issue of trial courts incarcerating child support obligors without first making a determination that the obligor possesses an ability to pay the release amount set has been visited on several occasions by the Appellate Division and Supreme Court, and more recently four appellate panels.[2]  Each case was presented as an emergent appeal.  In each case, the Appellate Division agreed that the violation of the constitutional right to liberty constituted emergent circumstances warranting immediate review.  In each case, the Appellate Division granted the requested relief and released the incarcerated defendant.[3]  The law is clear.  Nonetheless, the trial courts continue to incarcerate "deadbeat parents" without making so much as an inquiry into their ability to pay the release amounts set.

     The second sub-set of plaintiffs have been held without review of any type, for periods ranging from four to in excess of fifty days.  Were these plaintiffs charged with a criminal offense, they would be constitutionally entitled to a bail hearing within 12 hours of their arrest.  See, R. 3:4-1(b),  NJ Const. Art. 1, § 11.  These plaintiffs sit in legal limbo, without a release amount having been set and without their constitutional right to an immediate bail hearing being respected.

     As indicated, in the last 18 months, four appellate panels have addressed this issue in individual cases.  Nonetheless, the trial court continues to ignore the law and violate the civil rights of the plaintiff-obligors.  At this juncture, a class action is appropriate.  The plaintiff class should be certified, an immediate hearing should be scheduled, and the requested relief should be granted.


                           ARGUMENT

                           Point I

          PLAINTIFF CLASS SHOULD BE CERTIFIED PURSUANT TO RULE 4:32-1(a).

 

              A.  As to obligor plaintiffs

Plaintiff class should be certified without delay.  As set forth in the attached complaint, the named plaintiffs bring this suit individually and on behalf of all residents of the State of New Jersey who: (1) have been or currently are in arrears under support orders issued by the Chancery Division, Family Part of the Superior Court; (2) are presently incarcerated, will in the future be incarcerated and/or have in the past been incarcerated as a result of their failure to pay said child support; (3) have had their release (purge) amounts set without a meaningful inquiry as to their ability to pay same; and (4) have been incarcerated in spite of their inability to pay the release amounts set by the court.

     The Complaint names twelve plaintiffs, but there are many, many more.  According to the New Jersey Lawyer newspaper, there were 53,746 enforcement hearings last year.  See, New Jersey Lawyer, July 31, 2000, Page 1 (Exhibit B).

This is a proper class action.  Rule 4:32-1(a) requires 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.

     Where, as here, only injunctive and declarative relief is sought, the standard for establishing the numerosity requirement for class certification has traditionally been relaxed.  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).  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).

     It is respectfully submitted that plaintiffs satisfy the numerosity requirement for class certification.

     As with the defendant class, there are common questions of law and fact.  While the precise underlying facts surrounding each case may differ, the common fact is what is relevant: each person in arrears has had a release amount set by the Court which is not based on their ability to pay.  This violates well-settled case law as restated by the Appellate Division in Weinstein v. Weinstein:

     An order incarcerating a debtor-spouse in aid of litigant's rights which contains an amount to be paid as a condition for release presupposes that the judgement debtor has assets that have been secreted or otherwise placed beyond the reach of execution. . . the purpose of such an order, and its legal justification, is to induce compliance with a lawful order.  In such cases, the incarcerated party has the key to freedom in his/her hands because the debtor-spouse has the ability to comply with the order as a condition for release.  The record before us is devoid of any evidence that defendant has assets that can be used to satisfy the release amount ordered by the court. . .

 

     Without a scintilla of evidence that an obligor has the "key to freedom in his hands," a party cannot be incarcerated for defaulting on a child support obligation.  Saltzman v. Saltzman, 290 N.J.Super. 117 (App.Div. 1996), Pierce v. Pierce, 122 N.J.Super. 359 (App.Div. 1973); Federbush v. Federbush, 5 N.J.Super. 107, (App.Div.1949); Biddle v. Biddle, 150 N.J.Super. 185 (Ch.Div. 1977); Department of Health v. Roselle, 34 N.J. 331 (1961), Commentary to R. 1:10-3, Current New Jersey Court Rules.

     The claims and defenses of the representative plaintiffs are identical to those of the class as a whole.

     The representative plaintiffs will fairly and adequately protect the interests of the class.  The claims are typical of those raised by defendants in child support matters and the adjudication sought by the plaintiff class, if granted, would protect all the affected plaintiffs. 

     Finally, the parties opposing the class plaintiffs have acted on grounds generally applicable to the class as a whole, thereby making appropriate injunctive relief to the class as a whole.  The judges of the Superior Court of New Jersey preside over hearings wherein they are called on to establish release amounts for obligors who have defaulted on their child support obligations.

     Plaintiff class should be certified by this Court.

              B.  As to child plaintiffs

     The right to a meaningful and loving relationship between a parent and child is so well-rooted in our nation's jurisprudence as to be considered fundamental by the New Jersey and United States Supreme Courts.  See, e.g., Watkins v. Nelson,  163 N.J. 235 (2000);  Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L. Ed.2d 599 (1982);  Stanley v. Illinois, 405 U.S. 645, 651‑652, 92 S.Ct. 1208, 1212‑1213, 31 L.Ed.2d 551 (1972) (and cases cited); In re Guardianship of Dotson, 72 N.J. 112, 122, 367 A.2d 1160 (1976) (Pashman, J., concurring).

     Children also have a right to food and clothing.  The incarceration of a parent who has willfully defaulted on a child support obligation may be a completely constitutional and appropriate method of coercing compliance with a court's Order.  But for an incarceration to be coercive rather than punitive, the incarcerated party must "have the key to freedom in his hands."  See, e.g.  Saltzman v. Saltzman, 290 N.J.Super. 117 (App.Div. 1996).  In the event punitive measures are justified, the trial court remains able to refer a matter to the prosecutor's office for proceedings under N.J.S.A. 2C:24-5 (willful non-support).  Weinstein v. Weinstein, April 7, 2000 (Exhibit A at page 7).

     Moreover, while a coercive incarceration serves to force a recalcitrant noncustodial parent to provide support for his or her child (by forcing them to "use the key to freedom" by paying the set release amount), a punitive incarceration, or the establishment of a release amount above the ability of the incarcerated parent to pay, has the exact opposite result.  The noncustodial parent who cannot hope to pay the release amount set cannot earn money to pay child support and cannot pursue employment while in jail.  Neither the child's right to love and parenting nor his or her right to child support is served by defendants' illegitimate incarceration of plaintiff-obligors.

     For every plaintiff-obligor, there is (at least) one plaintiff child.  Plaintiff class of the children of improperly incarcerated obligors should be certified.


                           Point II

          DEFENDANT CLASS SHOULD BE CERTIFIED PURSUANT TO R. 4:32-1(a).

Defendant class should be certified.  Rule 4:32-1(a) requires: (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.

     That the persons affected are so numerous that joinder of all parties is impracticable is beyond debate.  This Court can take judicial notice of the fact that there are well in excess of the required number of parties who are sitting Judges of the Superior Court of the State of New Jersey. See, New Jersey Lawyers Diary, 2001 Edition, pages 883-892 (listing over 500 state court judges).

There are common questions of law and fact, and the claims and defenses of the representative defendants are representative of those of the class.  The factual and legal issues as to all defendants are identical.

     The representative defendants will fairly and adequately protect the interests of the class.  All New Jersey Judges are represented by the Attorney General's office, experienced litigators who will fairly and adequately protect the interests of the class.

     The prosecution of separate actions by or against individual members of the class would create a risk of 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.

     Judges of the Superior Court have been certified as a class under the same circumstances in other jurisdictions.  See, e.g.  Lake v. Speziale, 580 F.Supp. 1318 (D.Conn.1984), Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981).

     The defendant class should be certified.

                          Point III

     THE COURT SHOULD ISSUE A PRELIMINARY INJUNCTION AGAINST THE UNCONSTITUTIONAL PRACTICES OF DEFENDANT CLASS

     To support a preliminary injunction, the moving party must show irreparable injury and a reasonable probability of eventual success on the merits.  Additionally, the court must weigh the possibility of harm to the non-moving party and, when relevant, harm to the public.  See  Crowe v. DeGioia, 90 N.J. 126 (1982) reh'g on remand 203 N.J. Super. 22 (App. Div. 1985);  Cherry Hill Township v. Oxford House, 263 N.J.Super. 25, 43 (App.Div.1993); Morris Cty. Tsfr. v. Frank's Sanitation, 260 N.J.Super. 570, 574-576 (App.Div.1992), Cerro Metal Products v. Marshall, 620 F.2d 964, 972 (3d. Cir. 1980), citing Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356‑57 (3d Cir. 1980).

     Plaintiffs' probability of success on the merits is high and there is a clear showing, if not res judicata, as to the irreparable injury they are suffering.  Within the last eighteen months, seven appellate judges[4] in four separate cases, relying on well-established case law[5] have determined that unconstitutional incarceration constitutes sufficient irreparable injury to warrant the granting of emergent relief.  In those cases, the longest any single plaintiff had been incarcerated was seventy-three days.[6]  In the matter now before this Court, plaintiff Craig Williams has been incarcerated for eighty-five (85) days - since September 3, 2001.[7]  The appellate division in Bachman v. Cohen set a benchmark of twelve days before a trial court should assume that a defendant's incarceration is no longer "coercive"[8] and they do not possess "the key to freedom in his/her hands."

     In this matter, there is no possible harm to the non-moving party.  There is no challenge raised to the authority of the court to enforce child support orders.  The issue is the defendants' persistent and repetitive failure to establish release amounts based on the ability of plaintiffs to pay same and secure their release.  Defendants are not in any way benefitting from plaintiffs' release amounts being based on a factor other than their ability to pay and can therefore allege no harm.

     As this matter is brought under § 1983, plaintiffs must allege a probability that the complained of conduct will be repeated before a preliminary injunction can issue.  City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).  In the matter before this Court, plaintiffs have alleged systematic conduct of establishing release amounts based on considerations other than the ability to pay of the obligor, or in failing to provide plaintiffs with any type of review of their incarceration.  The enclosed affidavits indicate a consistent pattern of conduct sufficient to satisfy the Lyons requirement.

     All the factors required for an injunction having been met, the Preliminary Injunction should issue forthwith.

                          CONCLUSION

     For the above listed reasons, the classes should be certified and the requested preliminary injunction should issue forthwith.

 

 

 

 

      Respectfully submitted this       day of November, 2001

 

 

                                                                                                  ____________________________

                                       David Perry Davis, Esq.



          [1] See affidavits of currently incarcerated named plaintiffs, attached as Exhibit C.

          [2] A fifth case is now pending before the appellate division.

          [3] Those cases are attached as Exhibit A.

          [4] Judges Collester, Cuff, Lessemann, Keefe, Newman, Skillman, and Havey.

          [5] Exhibit A.

          [6] See Williams v. Tolbert, Exhibit A.

          [7] See affidavit attached hereto as Exhibit C.

          [8] ". . .  defendant's continued incarceration after twelve days may suggest that he has exhausted that source of funds."  Bachman v. Cohen, (Exhibit A).