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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 Reply Brief

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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

Reply to Counterstatement of Facts.......................... 1

 

Legal Argument

 

     I.   THE TRIAL COURT ERRED IN FAILING TO CERTIFY THE PLAINTIFF AND DEFENDANT CLASSES.............................. 3

 

     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................................ 8

 

     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.................................................. 10

 

Conclusion................................................. 13


                     Table of Authorities

New Jersey Case Law

African Council v. Hadge

     255 N.J.Super. 4 (App.Div.1992)........................... 11

Bolyard v. Berman

     274 N.J.Super. 565 (App.Div. 1994)........................ 12

Delgozzo v. Kenny

     266 N.J.Super. 169 (App.Div.1993).......................... 5

Frank's Chicken House v. Mayor and Council

     208 N.J.Super. 542 (App.Div.1986)......................... 11

Gregg v. Township Comm.

     232 N.J.Super. 34 (App.Div. 1989)......................... 12

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

     303 N.J.Super. 336 (Law Div.1997).......................... 5

In re Cadillac V8‑6‑4 Class Action

     93 N.J. 412 (1983)......................................... 5

Riley v. New Rapids Carpet Ctr.

     61 N.J. 218 (1972)......................................... 7

Singer v. State

     495 N.J. 487 (1984)....................................... 10

Stockton v. Rhulen

     302 N.J.Super. 236 (App. Div. 1997)....................... 11

 

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)..................... 5

Doe v. Charleston Area Medical Center Inc.

     529 F.2d 638 (W.Va. 1975).................................. 4

Hensley v. Eckerhart

     461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)........ 12

Jones v. Diamond

     519 F.2d 1090 (5th Cir.1975)............................... 4

W.P. v. Poritz

     931 F.Supp. 1187 (D.N.J. 1996)............................. 4

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)....................... 4

Young v. Pierce

     544 F.Supp. 1010 (E.D.Tex. 1982)........................... 4

New Jersey Court Rules

     Rule 4:32-1(a)................................................ 3

 

Federal Statutes

     42 U.S.C. § 1988............................................. 12

 

Other Sources

Class Actions in New Jersey State Courts

Phillip Steven Fuoco, Robert F. Williams,  24 Rutgers L.J. 737, 752 (1993)........................................................... 5


              Reply to Counterstatement of Facts

    Defendants do not dispute the salient facts leading to the filing of the complaint and order to show cause.  The plaintiffs, indigent child support obligors who either failed to make court-ordered child support payments or who failed to appear for scheduled enforcement hearings, were held for inordinate periods of time without any review of their incarceration.  The issue of the adequacy of the findings made at ability to pay hearings was not contested by defendants, and, in light of the admissions in the Ocean County Certification (Pa 100-104) and "concerns" of the trial court (1T 21-22 to 21-23, Pa 246), this issue could not reasonably be disputed.

    The first contested assertion by defendants that can be easily clarified is the claim:

    Contrary to the assertion in appellant's brief, the Complaint's allegations focused on the perceived inadequacy of the ability to pay hearings conducted by the New Jersey Judges and their setting of purge amounts at a level which appellants unable to afford, not on the length of time they were incarcerated before receiving a hearing (Db 1).

 

    This is not an issue requiring interpretation.  The Complaint and order to show cause speak for them self and clearly and repeatedly assert the issue of the length of time between arrest and an initial ability to pay hearing:

    4.  The second sub-set [of plaintiffs ] have been deprived of their physical liberty and have had not had a release or purge amount set at all in spite of their having been arrested days or even weeks ago (Pa 3-4, Complaint).

                              and

    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 (Pa 15, order to show cause).

 

    Insofar as defendants' combined procedural history and counterstatement of facts further contradict any other of the factual assertions made by plaintiffs in their Statement of Facts, plaintiffs rely on the record below and the statement of facts presented in their brief.


J                       LEGAL ARGUMENT

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

                       As to numerosity

    After restating the undisputed text of R. 4:32-1, defendants aver that "[t ]he court found that, based on the fact that over 50,000 child support enforcement hearings were conducted each year, appellant's submission of accusations against five Superior Court judges on the basis of ten transcripts in only three of the 21 counties in the State fell short of satisfying the numerosity requirement of the Rule." (Db 8).

    The Complaint was filed as a class action.  Its text does not raise claims "against five Superior Court judges . . . in only three of the 21 counties," it names five Superior Court judges "as representative parties on behalf of a defendant class consisting of all the Superior Court Judges of the State of New Jersey." (Pa 10, Complaint). 

    Defendants do not respond to the controlling law, as set forth in appellants' brief at length, that the trial court erred by 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.

                       As to commonality

    Defendants do not respond to plaintiffs' assertion that the trial court erred by focusing on the factual differences between class members rather than on 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, as a result of defendants' conduct, each plaintiff had been incarcerated (1) for an inordinate amount of time without an ability to pay hearing or (2) without having been afforded a constitutionally adequate hearing.  These allegations must be accepted as true when a court is asked to certify a class, and establish 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

    Defendants restate the trial court's ruling on this issue without addressing the claim of error.  A plaintiff's 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 (1983).

    Defendants then aver that, because two distinct causes of action were set forth in the complaint,[1] the trial court did not err in finding that there was no typicality sufficient to grant certification as to any issue.  No legal support is provided for this notion, which runs counter to the concept of judicial efficiency as well as the entire controversy doctrine as set forth in Circle Chevrolet v. Giordano, Halleran & Ciesla, 142 N.J. 280 (1995).

    The Supreme Court of New Jersey has set forth the test for whether a claim meets the typicality requirement for class certification.  As the claims of the plaintiffs herein "arise 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 (1983), the trial Court erred in finding the typicality requirement was not met.

                        As to adequacy

    Again, defendants repeat the trial Court's conclusion without addressing the claim of error and the case law regarding adequacy.  "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).  Defendants did not address their burden to rebut the presumption of adequacy, either below or in this Court, and the trial Court's ruling on this issue constituted reversible error.

                 As to certification generally

    Finally, defendants argue repeatedly that plaintiffs "failed to produce evidence" as to several of the claims made in support of the application for class certification.  This argument seeks to shift the burden to plaintiffs in spite of the direction of the New Jersey and United States Supreme Courts that the court was to focus on the allegations of the complaint, not what had been proved immediately upon the filing of a complaint or at a preliminary hearing on an order to show cause.  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 below erred in failing to give plaintiffs "every favorable view" of the Complaint and the record.  Riley v. New Rapids Carpet Ctr., 61 N.J. 218, 223 (1972).


    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.

 

    Defendants argue that plaintiffs' application for an injunction was denied as "appellants had no cognizable claim for relief regarding the procedures and standards for enforcing child support through enforcement hearings and that the defendant judges followed the established procedures." (Db 11).

    Compliance with a procedure that is unconstitutional does not negate a civil rights claim.  Defendants' claim has always been that the "established procedure" (both as to the timing of the hearings and as to the adequacy of the findings made at the hearings) was constitutionally inadequate, not that defendants had departed from it.[2] 

    In response to the case law establishing that the trial court erred in holding it could not entertain a class action against fellow Superior Court judges, defendants now argue "[t ]he court did not hold that it lacked authority to hear civil rights cases against fellow judges." (Db 12).  Defendants make no effort to reconcile this claim against the relevant statement of the trial Court:

 

    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 statement that "I have some concerns about the level of inquiry by the judges.  I don't dispute that" can only be interrupted as a recognition of a "cognizable claim" and the statements concerning the trial Court's belief that it "lacked authority" to address the claims, in spite of the trial court's "concerns", speaks for itself.

    The only other basis asserted by defendants to justify the trial Court's improper denial of class certification is the legally irrelevant issue of whether the trial Court complied with the constitutionally inadequate procedures.


    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.

    Singer v. State, 495 N.J. 487 (1984) sets out two factors that a trial Court must apply when considering an application for counsel fees in a civil rights action.  When these factors are met, counsel fees must be awarded absent "special circumstances."

    Both Singer factors were met.  The first factor requires a Court to find a factual nexus between the litigation and the result obtained.  Prior to this litigation, incarcerated child support obligors were held without an initial ability to pay hearing for time periods in excess of two weeks.[3]  Obligors are now reviewed within 72 hours of their arrest and every two weeks thereafter.  (Pa 199-201). 

    Defendants admit in their brief that appellants' case "may have been what brought the direction from the Court" (Db 15).  This understates the actual statement of the Court: "as a result, there is a nexus between the litigation and the relief ultimately achieved." (2T 14-6 to 14-8).

    The first factor was therefore established.

    The second factor requires that the relief granted had a basis in law.  Defendants repeat the trial Court's incongruent reasoning that compliance with an unconstitutional procedure negates a civil rights claim and assert that "there was no legal basis for this direction." (Db 15).  In its findings, the trial Court stated that "in reaching its decision and in developing the 72 hour time period, [the Court ] did premise its conclusion on procedural due process." (2T 14-22 to 14-24).

    It is indisputable that a ruling premised on procedural due process is a "legal basis for a ruling" for purposes of a civil rights claim.  See, e.g., Doe v. Poritz, 142 N.J. 1 (1995).

    The second factor was therefore established.

    Once the two factors are established, a trial Court is required to award counsel fees and costs "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).

    Defendants did not allege, and the trial Court did not find, that any "special circumstances" exist warranting a denial of counsel fees.  Moreover, the record would not have supported such a finding.  As the Appellate Division stated in Gregg v. Township Comm., 232 N.J.Super. 34, 39 (App.Div. 1989), "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."


                          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.

    The matter should be remanded for entry of an order granting plaintiffs' application for attorneys fees and costs and certifying the defendant class, thus making the relief ordered as to the named defendants applicable across the State.

 

Respectfully submitted,

 

 

David Perry Davis, Esq.



     [1]

(1) plaintiffs not receiving timely ability to pay hearings,

(2) plaintiffs not receiving adequate ability to pay hearings wherein evidence was adduced that they had the ability to pay whatever release amount was set.

     [2]   3.  In regard to both sets of plaintiffs, defendants' aforesaid actions are violative of the New Jersey Constitution and are part of a policy, practice or custom adopted, either formally or in fact.  (Pa 4, Complaint, emphasis added).

     [3]  The record actually establishes that arrested child support obligors were held in periods in excess of 30 days on a regular basis and in some cases for periods in excess of 90 days, Pa 52-71, 139, 155.  However, the two week time period that the Court found violative of due process is sufficient to establish plaintiff's satisfaction of the first prong of Singer.