The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

(732) 274‑2050 (fax)



January 16, 2002


Hon. Linda R. Feinberg, A.J.S.C.

Superior Court of New Jersey

175 South Broad Street

Trenton, NJ 08650-0068

Via Fax: 609-633-0746


Re:  Leonard, et al v. Blackburn, et al

     Docket No. MER-L-3761-01


Dear Judge Feinberg:

     Please accept this letter brief in lieu of a more formal submission in response to the Court's invitation for the parties to supplement their pleadings.

        As to class certification of plaintiff-obligors

I.  As to numerosity:

     1.  The Court's Ruling:

     THE COURT: ... I don't think there is numerosity.  You've identified -- there are thousands and thousands of cases every year, and you've extracted or identified a very small number.  There's no evidence before the Court that this is something that involves a large number of individuals. (T18-8 to 18-14).

     2.  The applicable law:

     Where, as here, only declarative and injunctive relief is sought, the standard for establishing the numerosity requirement for class certification has traditionally been significantly relaxed.  To establish the numerosity element,plaintiffs are notrequired 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) (Plaintiffs' reply brief at 17-18).

     Courts have held that the numerosity requirement, may be more liberally construed in civil rights cases in which injunctive relief is sought.  See, e.g., Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir.1975).

     In addition to the law set forth in plaintiffs' reply brief, the Court is respectfully referred to the following additional cases, all of which reaffirm the above law.  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).

     3. The facts in the record thus far:

     The complaint alleges that a routine, unconstitutional practice of setting release amounts based on factors other than the ability of the obligor to pay same has emerged at enforcement hearings.  It is the allegations of the complaint that the Court must focus on, not the evidence in the record at this early stage of the proceedings (See point II infra on commonality).  However, even if the Court focuses on the evidence in the record, the numerosity requirement was satisfied by the testimony adduced at the January 11 hearing.  According to Ms. VanEk and Ms. Desaw, there are (in Mercer County alone) about 350 enforcement hearings and 30 jail cases per month (T38-3 to 38-4 & T44-17 to 45-24).

     There are twenty-one counties in New Jersey.  Assuming Mercer County is average, the testimony of Ms. VanEk and Ms. DeSaw would indicate a total of approximately 100,000 enforcement hearing, and over 9,000 citizens "coercively" incarcerated per year.

     If the allegations of plaintiffs' complaint are accepted as true, as they must be at this juncture, these numbers more than satisfy the numerosity requirement.


II.  As to commonality

     1.  The Court's ruling:

     THE COURT:  But there -- the commonality is really -- every case is fact sensitive, is different (T18-8 to 18-12).

     2.  The law:

     The focus of the complaint in this matter is that a common practice has evolved that violates plaintiffs' civil rights.  On January 11, the court focused on what had been proved as far as commonality rather than focusing on the allegations of the complaint.  The Court referred to the transcripts that had been produced in support of the allegations and weighed them evidentially as to whether they supported the allegation that the lack of meaningful ability to pay hearings is a statewide problem (see, e.g., T13-9 to 13-12, 28-7 to 27-8).  The Court concluded that an insufficient showing had been made as to commonality because there are thousands of child support enforcement hearings and plaintiffs had provided only sixteen transcripts and six[1] appellate reversals.  (T22-5 to 23-10).  The underlying assumption of this ruling is that the remaining hearings would not support plaintiffs' allegations or that there was a burden on plaintiffs to prove their entire case on a motion for class certification  

     In sum, plaintiffs application appears to have been denied because all they did was prove beyond any doubt that the allegations as to each and every named plaintiff was true and that the situation was ongoing in at least Ocean County.  To certify the class, the Court would have required plaintiffs to prove that the allegations were true as to the entire class of tens of thousands.[2]

     It is respectfully suggested that this was error.  On a motion for class certification, "[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).  The applicable legal standard was inverted at the January 11 hearing when the court held that the substantive allegations had not been sufficiently proved.  Plaintiffs provided far more than the average putative class and exceeded the standard.

     The required "common nucleus of operative fact and law" is found in the proven facts that each member of the plaintiff class was (1) incarcerated as a result of their nonpayment or underpayment of child support, (2) subjected to a "coercive" incarceration without a constitutionally adequate "Ability to Pay" hearing, or (1) was incarcerated as a result of their failure to appear for an enforcement hearing nonpayment and was (2) held for an inappropriate amount of time prior to any review of their incarceration occurring.

     3.  The Facts:

     Although it was the centerpiece of plaintiffs' argument as to the facts, the Court on January 11 did not so much as reference the certification from Ocean County wherein Michelle Tierney admits the substantive allegations of the complaint are true.  During oral argument, the attorney for defendants also ignored this certification, stating "naming six Superior Court judges and throwing out transcripts from a very small number of hearings is inappropriate to support a class action suit." (T29-3 to 29-6).

     It is respectfully submitted that the Ocean County certification is dispositive on this issue.  Ms. Tierney, the assistant chief of child support enforcement for Ocean County, states "... If a legitimate inability to pay is demonstrated, the Obligor  would may  not be incarcerated."[3] (Exhibit Y with plaintiffs' Reply Brief).  If an obligor without the ability to pay "may not" be incarcerated, she also "may" be incarcerated - in violation of the constitution and laws of our state.  What more could possibly be asked from plaintiffs beyond an incriminating admission of this magnitude?

     If the answer to that query is further proof as to the case of the named plaintiffs, the transcripts and orders indisputably provide that proof.  The Constitutional rights of each and every named plaintiff were openly violated; none of them were granted so much as a pretense of an actual "Ability to Pay" hearing.

III.  As to typicality, adequacy of representative.

     No law was provided to the Court in opposition to that provided by plaintiffs and there was no discussion of this issue during oral argument.  It is respectfully submitted that these requirements were met.


        As to class certification of plaintiff children

     In their opposition, and again at oral argument, defendants asserted that a minor cannot bring a civil rights action in their own name (T30-7 to 30-10).  No legal citation nor support was provided for this proposition as none exists.  While children cannot contract, they remain "persons" under the Constitution and are free to pursue their civil rights, under their own names, through the court.  See, e.g.,  Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (Minor students permitted to wear armbands in protest of Vietnam policies), In re Rebecca H., 227 Cal.App. 3d 825, (Cal.App. 1991), In Interest of J.A.T., 590 So.2d 524, 16 Fla. L. Weekly D3065 (Fla.App. 1991), In re Rebecca K., 101 Wash.App. 309, 2 P.3d 501 (Wash.App. Div. 3, Jun 20, 2000).

     The only comment the court made as to the merits of certifying the class of plaintiff-children was "I don't want to hear about the love and companionship; these are also people who blatantly failed to pay child support." (T21-1 to 21-3).

     There is no correlation in the law between parenting time, parental love, and the payment of financial child support.  The two are separate and distinct entities.  A parent cannot avoid a child support obligation by surrendering her parental rights, and vice-versa.  Martinetti v. Hickman, 261 N.J.Super. 508 (App.Div. 1993), R.H. v. M.K., 254 N.J.Super. 480 (Ch.Div. 1991).[4]

          As to certification of the defendant class

     On January 11, the Court noted that it had carefully scrutinized the transcripts and recognized that there was problem with the adequacy of the "Ability to Pay" hearings:

     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).

     This Court is not being asked to sit as a court of review in the matter of McClean versus Leonard, FD-11-2011-95, nor Janeil Crawley v. Jeffrey Leonard, FD-03-1611-93 nor Daneen Billingsly v. James Thompson, FD-11-3947-93 nor any of the other matters involving the named plaintiffs.  Plaintiffs agree with the Court's analysis that this would clearly be asking this Court to exceed its authority.

     That said, it should be stressed that Leonard et al v. Blackburn et al MER-L-3761-01, is a completely collateral matter.  This Court absolutely has both the authority and the duty to address a civil rights complaint for injunctive and declarative relief, and judges have no immunity to a complaint that is not seeking monetary damages.  Were it possible to sue "the system" as a nameless entity, plaintiffs would have done so.  It should again be stressed that the published case law and the individual appellate reversals are obviously having no effect on the system.

     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.  Anne Pasqua, et al v. Hon. Gerald Council, Civil Action No. 00CV-2418, Third Circuit Docket No. 01-2735.[5]  Plaintiffs had no choice but to bring this matter in state court.

    As to 72 hour review of persons not subject to detainer

     On January 11, the Court ruled that "a person who's been picked up on a Failure to Appear Warrant and has no other detainers, that person should be brought before the court within . . . 72 hours" (T15-13 to 15-18).  In it's colloquy with the representatives from probation, the court discussed having child support obligors subject to detainers reviewed within 72 hours of said detainers being lifted (T42-20 to 42-24).

     Although there does not appear to be a statute requiring this (it may be an administrative rule), the procedure is that municipalities will not review a prisoner held on a county warrant until said warrant is satisfied.  If the probation department waits for municipal detainers[6] to be removed, the child support incarceration will never be reviewed by the Probation Department.  The county warrant or detainer for child support must be addressed first.  In other words, all persons arrested (or subject to detainer) as a result of their nonpayment or underpayment of child support or following a failure to appear at an enforcement hearing should be reviewed within 72 hours, regardless of the existence of other detainers.

            As to defendants supplemental arguments

     In their response brief, defendants provided three claims in opposition to plaintiffs' application.  Initially, they claimed that no one was incarcerated in the State for nonpayment or underpayment of child support.  This claim was not pursued at oral argument and was not referred to in the court's decision.

     Second, the State claimed that two of the six named defendants had not conducted proceedings as to any of the named plaintiffs.  Plaintiffs replied that said defendant had committed the acts complained of as to the plaintiff class and there was no requirement that every named defendant "line up" with a named plaintiff.  No rebuttal to this argument was presented at oral argument.

     Finally, the State claimed that the complaint itself had to be dismissed with prejudice because plaintiffs had not established (prior to any discovery, trial, hearings, etc) they were entitled to injunctive relief.

     During oral argument, the State for the first time raised the issue of whether the complaint should have also named the Administrative Office of the Courts as a defendant, at least as to the issue of the amount of time an obligor is held before review (and between reviews if she or he remains incarcerated to determine if the incarceration is still serving a legitimate coercive goal). (T28-22 to 29-1).  While plaintiffs maintain that the ultimate responsibility rests with the judiciary, it is respectfully suggested that, should the Court find merit to the defendants argument in this regard, plaintiffs should be permitted to amend their complaint.[7]

             As to ongoing emergent circumstances

     As the court is reading this, Perry Rhodes, a thirty-seven year old impoverished African American Trenton resident, sits in the Mercer County Corrections Center. He has been incarcerated since before Christmas (December 4), unable to produce the $400.00 release amount set for him, unable to earn money, unable to spend time with either Perry Rhodes Jr. (the child subject to the child support order at issue), nor Anthony Rhodes, his 18 month old son from his subsequent marriage.  Both Anthony and Perry Junior are being deprived of non financial child support from their father, who spent significant time with both his sons.  There was no showing at the hearing that Mr. Rhodes had $400.00 to obtain his release and, frankly, the idea that someone would stay in jail for nine weeks if they had the ability to post $400 and go free is absurd.  Mr. Rhodes is, in a word, typical of the hundreds of incarcerated child support obligors whose civil rights were completely disregarded.

     If Mr. Rhodes had $1000 and his release amount was more than $1000, he could retain this office for an emergent appeal and be released.  This is the system that exists and will continue to exist if the court declines to address this matter as a class action.  The concept of "justice for sale" should be offensive to the Court.

     It is beyond debate that child support orders need to be enforced.  The threat of incarceration is unfortunately necessary in some cases and would remain an inspiration to those who would selfishly and contemptuously disregard their financial obligations to their children while having the ability to comply with the Court's Orders.  But the present system of open-ended "coercive" incarcerations for months on end accomplishes nothing, targets those most vulnerable in our society, and in the process does great harm to the obligors, their children, and the laws and Constitution of our state.


     For the above reasons, this Court should certify the classes and grant the requested injunctions.


Respectfully submitted,





David Perry Davis, Esq.



                               Proof of Service


      Joell Zahn, of full age, hereby certifies as follows:

      1.  I am a paralegal employed by the Law Office of David Perry Davis, attorney for  in this matter.

      2.  On this date, I caused a copy of the enclosed supplemental letter brief and this Proof of Service to be served upon the following:


Barbara  Stoop, DAG, Esq.

Office of the Attorney General

Division of Law

25 Market Street

Trenton NJ 08625

By Hand delivery


      3.  I certify that the foregoing statements made by me are true.  I am aware that if any of the foregoing statements are willfully false, I am subject to punishment.     




                                                                    Joell Zahn     

DATED:  January 16, 2002

     [1] As was disclosed in plaintiffs' reply brief, there have actually been eight reversals, not six.  There were only six reversals as of the filing of plaintiffs' complaint in this matter.

     [2] It should be stressed that plaintiffs are seeking only an injunction; not a complete and final adjudication on the merits.  Those judges who are properly applying the law would be unaffected by such an injunction and therefore would not be damaged by it in any way.

     [3] Also relevant to all the certifications provided by defendants is that the legal standard for the showing of an ability to pay was inverted.  The burden is not on the obligor, it is on the party seeking incarceration.  Accordingly, each and every certification submitted by defendants contains an admission of plaintiffs' allegation that the hearings are not being properly conducted.  See, e.g. unpublished opinions and published case law and Court Rules referenced therein.

     [4]  Perhaps more importantly, in the overwhelming majority of the cases involving the named plaintiffs herein and improperly incarcerated obligors generally, (i.e. those who live in perpetual poverty in our inner cities) the money is not owed to the custodial parent but to social services (see transcripts supplied with reply brief).

     [5] Oral argument in the Third Circuit Court of Appeals is pending for early this Spring.

     [6] as opposed to county detainers, which apparently are not held pending the resolution of a child support detainer.

     [7] Naming the AOC as defendants would also open the issue of damages, which has thus far not been pursued.