SUPERIOR COURT OF NEW JERSEY

LAW DIVISION, CIVIL PART    

MERCER COUNTY, NEW JERSEY

DOCKET NO. MER-L-3761-01

A.D. #_______________________

JASMINE LEONARD, et al. )

)

Plaintiffs)        TRANSCRIPT

)             OF

-v-           )           HEARING

)

AUDREY P. BLACKBURN,    )

et al.                  )

)

    Defendants.)

 

Place:  Mercer County Courthouse                                 175 South Broad Street

   Trenton, NJ 08650

 

Date:   January 11, 2002

 

BEFORE:

 

  HON. LINDA R. FEINBERG, J.S.C.

 

TRANSCRIPT ORDERED BY:

 

  DAVID PERRY DAVIS, ESQ. (Law Office of David Perry Davis)

 

APPEARANCES:

 

  DAVID PERRY DAVIS, ESQ. (Law Office of David Perry Davis)

  Attorney for the Plaintiffs                       

 

  BARBARA STOOP, Deputy Attorney General

  Attorney for the Defendant

 

 

Transcriber, Denise M. O'Donnell

J&J COURT TRANSCRIBERS, INC.

268 Evergreen Avenue

Hamilton, NJ 08619

(609)586-2311

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E-mail:   jjcourt@optonline.net

 

Audio Recorded

Audio Operator, M. Bethea


                        I N D E X

 

PAGE

WITNESSES FOR THE DEFENDANT

 

   CYNTHIA VANEK

Examination by the Court.........................   38

     Cross Examination by Mr. Davis...................   43

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


          THE COURT:  Good morning.  Please be seated.  All right the case -- the first case will be Leonard v. Blackburn.  It's MER-L-3767-01, and good morning.  Counsel, your appearances for the record?

MR. DAVIS:  Good morning, Judge.  David Perry Davis on behalf of the putative plaintiff class.

THE COURT:  Thank you.

MS. STOOP:  Good morning, Your Honor.  Deputy Attorney General Barbara Stoop here representing all of the judicial defendants.


THE COURT:  Thank you.  Counsel, I'm going to place on the record the facts in this case so sit back and let me set forth the procedural history.  Then I will give you sort of my tentative feelings and give you an opportunity argue.  


This matter comes before the Court by way of an order to show cause filed by the plaintiffs, Jasmine Leonard, David Chavez, Devonica Chavez, Tiana Logan and Ashley Lewis, and plaintiffs Jeffrey Leonard, Devon Square, Craig Williams, James Thompson, Cheyanne Johnson, David Chavez, Todd Logan, Jeffrey Jones, Gary Davis, Cleo Merritt, and also Jawan Cruz and Ronald Cohn are listed on a number of the papers, but are really not specifically identified as plaintiffs.  And that matter was filed on November 28th of 2001.  On that date the Court signed an order to show cause


requiring the defendants to show cause today, January 11th, 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 plaintiff has the ability to pay the release amount for granting a preliminary injunction compelling defendants to immediately release all currently incarcerated plaintiffs pending an Ability to Pay Hearing, or in the alternative to conduct an appropriate Ability to Pay Hearing within 24 hours.  The application is opposed.


The first set of plaintiffs in this matter consists of Jasmine Leonard, David Chavez, Devonica Chavez, Tiana Logan and Ashley Louis, plaintiff children, the children of incarcerated child support obligors.  The second set of plaintiffs consists of Jeffrey Leonard, Devon Square, Craig Williams, James Thompson, Cheyanne Johnson, David Chavez, Todd Logan, Jeffrey Jones, Gary J. Davis and Cleo Merritt, who are the plaintiff obligors. 


On November 28th of 2001, both sets of plaintiffs filed a complaint and order to show cause seeking declaratory and injunctive relief against the defendants Honorable Audrey P. Blackburn, Honorable F. Lee Forrester, presiding judge of the family part of Mercer County, the


Honorable Rosalie Cooper, and the Honorable Thomas Cavanagh, and the Honorable Louis Locascio, collectively referred to as "Defendant Judges" to prevent them from engaging in practices which allegedly abridge the constitutional rights of plaintiff.  Judge Blackburn and Forrester are Superior Court Judges in Mercer County; Rosalie Cooper is a Superior Court Judge in Ocean County; and Thomas Cavanagh and Louis Locascio are Superior Court Judges in Monmouth County. 


Plaintiffs assert that the parents of plaintiff children have been incarcerated by Defendant Judges and had either, 1) had release or purge amount set based not on their ability to pay, but on other impermissible factors such as the total amount of arrearages owed or completely arbitrary numbers, or 2) have been held for many days or weeks without having had any release amount set by way of a release amount or by bail. 


According to plaintiffs, plaintiffs' children have be unconstitutionally denied their fundamental right to a meaningful relationship with their incarcerated parent and have been denied their right to financial child support.  Plaintiffs also assert that the plaintiff obligors incarcerated by defendants have either, 1) had release or  purge amount set based not on their ability to pay, but on other impermissible factors such as the total amount of arrearages owed or arbitrary numbers, or have been held for


many days or weeks without having had any release amount set by way of a release amount or by bail.


More specifically, plaintiffs assert the following regarding each plaintiff obligor:  1) plaintiff obligor Devon Square does not have the present ability to pay the $3,500 release amount set by Judge Blackburn, and allegedly no inquiry was made regarding the ability of said plaintiff to pay; 2) plaintiff obligor Criag Williams has not been reviewed since August of 2001 and that his release amount is 8,000 which he cannot pay.  Plaintiff obligor James Thompson does not have the present ability to pay the $1,500 release amount set by Judge Blackburn, and allegedly no inquiry was made regarding his ability to pay; 4) plaintiff obligor Cheyanne Johnson, case has not been reviewed since November of 2001, and he remains unable to pay child support arrearages.  I'm not going to list all of the parties, but the allegation is the same for all of the plaintiff obligors. 


Plaintiff asserts that the obligors who have had their release amounts based not on their ability to pay, but on other impermissible factors, have been deprived of their physical liberty.  In addition, plaintiffs assert that if they are incarcerated for a period in excess of 24 hours without having a hearing, they have been deprived of their constitutional rights. 



Plaintiffs seek judgment in favor and against the defendants declaring that the constitutional rights of plaintiffs and all of those that are similarly situated have been violated; enjoining the defendant class from establishing a purge or a release amount for plaintiff obligors without first making specific findings based on substantial and credible evidence that plaintiff obligors have the ability to pay; 3) requiring the defendant class to immediately review all persons now incarcerated in violation of their constitutional rights; 4) requiring defendant class to prospectively review the cases of all plaintiff obligors within 12 hours of their arrest or incarceration, and set an amount -- release amount consistent with the ability of the payor to pay; and for counsel fees and costs. 


In addition, plaintiff contends that this is a proper class action suit and should be certified consistent with Rule 4:32-1(a).  Plaintiffs allege that the requirements under the rule have been satisfied.  Specifically, plaintiffs contend that the standard for establishing the numerosity requirement is traditionally relaxed when seeking injunctive or declaratory relief.  According to plaintiffs, the relaxed standard, coupled with the vast number of individuals like said plaintiffs has satisfied the requirement.  And, also, the plaintiffs allege that the other requirements set forth in 4:32 have been


satisfied. 

On January 2nd of 2002, defendants filed a motion to dismiss.  In support of the motion, the defendants contend that the allegations that are set forth in the complaint are incorrect and inaccurate.  Defendants dispute that the plaintiff obligors were incarcerated for


non-payment of child support without first being given an Ability to Pay Hearing.  According to the defendants, the plaintiff obligors were incarcerated for their failure to appear at scheduled Ability to Pay Hearings and that they are in on-compliance of the court order.  In addition, defendants indicate that purge amount set for plaintiffs release is akin to a fine for their failure to appear, and it is not necessary under the current system for the court to assess an ability to pay.

Defendants further dispute that the defendants Cavanagh and Locascio of Monmouth County were in any way involved in any of the plaintiffs' cases.  Apparently, according the defendant, the case of Mr. Cohn was actually presided over by Judge Hayser who, interestingly enough, is now sitting in Mercer. 


Defendants also contend that plaintiffs have failed to demonstrate any entitlement to injunctive relief.  Defendants submit that plaintiffs have failed to make a preliminary showing of a reasonable probability of success


on the merits, and that most of the information contained in the plaintiffs' moving papers are based on incorrect and inaccurate facts.


Lastly, the defendants contend that plaintiffs have failed to establish any entitlement to class certification for either the plaintiff or defendant class.  Defendants specifically represent that the plaintiff class are minors and unable to bring such litigation without proper authority, and also that the request for class certification is premature because of the motion now before the Court to dismiss.  Additionally, the defendants assert that the plaintiffs have failed to satisfy the requirements that are set forth in Rule 4:32.


Let me give you some of my tentative thoughts.  Number one, there is a process in New Jersey when individuals fail to pay child support.  There are a number of cases, Pierce v. Pierce, the Saltzman case that all stand for the proposition that when a defendant fails to pay child support, the court -- the probation department has the authority to initiate an action to enforce litigant's rights, under Rule 1:10-3.  They send out a notice directing the obligor to appear in court.  That notice is sent by regular and certified mail, and that's consistent with the court rule.  Based on the certifications from Ocean, Mercer and Monmouth County, if the court is satisfied that the


obligor has received notice -- and I assume that the court reviews the green return receipt card to verify service -- if the court is satisfied that the obligor has received notice and the obligor has not appeared, the court will issue a warrant for the defendant's arrest, not for the -- any other reason other than the fact that obligor has failed to appear.  That process is the appropriate process.  That is the process defined by court rule, affirmed by a number of court cases, and that's a rule that's been in place for probably well over two decades.


In this particular case, Mr. Davis, who is representing the plaintiffs, allege that the defendants were incarcerated for their failure to pay child support and that the court did not conduct an Ability to Pay Hearing.  According to the representation of the State, all of these obligors were arrested and held because they failed to appear at the hearing.  I don't really think that's probably in dispute, that they were -- Mr. Davis, you don't dispute that.

MR. DAVIS:  No, Judge.


THE COURT:  So, we have a situation here where an obligor -- a child support amount has been set -- an obligor has not paid child support, probation department has initiated a 1:10-3 action, and the defendant has failed to appear.  The defendant is then arrested.  He's arrested,


he's held, and brought before the court at various times.  In one of the counties -- I don't know if it's Ocean or Monmouth -- the defendant is generally brought before the court the next day.  In one of the other counties, the defendant is brought before the court generally within three to four days.  So, in two of the counties that are involved -- not Mercer, Ocean and Monmouth -- the hearing on the failure to appear occurs either the next day or within four days.  In Mercer County, those hearings on the failure to appear occur apparently twice a month on Thursday.  I believe it's either the first and third, or second and fourth Thursday of every month. 



I am not satisfied -- and I'm giving you my tentative thoughts -- and certainly these are my tentative thoughts, and certainly counsel should argue because I've been known to change my mind -- I don't think this is a class-action suit under 4:32.  These defendants and these plaintiffs, more specifically the plaintiffs, are individuals who have very different facts and very different cases and don't fall within the parameters of 4:32.  Second, the process that was followed in all of these cases in terms of brining in an obligor is established both by court rule and by case law, and an individual obligor who feels that their particular case has been handled inappropriately does have a mechanism of appeal.  In fact, the plaintiffs


apparently have filed appeals in a number of cases.  In the Cruz case -- Cruz is not a plaintiff in this action, but Cruz filed an appeal.  Mr. Cohn is not a plaintiff in this case, but filed an appeal.  Mr. Tolbert is not a plaintiff in this case, but filed an appeal.  Mr. Weinstein is not a plaintiff in this case, but filed an appeal.  Mr. Logan is a plaintiff in this case and filed an appeal, and Mr. Davis is a plaintiff in this case and filed an appeal. 


If a individual obligor feels that an individual judge has not properly conducted a child support enforcement hearing and that the judge has not complied with the standards in Pierce and the clear requirement that there be an Ability to Pay Hearing -- and the court has to make specific findings -- that obligor, like the obligors who have already filed appeals, have the right to initiate an appeal.  That decision is a final decision.  It's appealable to the Appellate Division, and the obligor has relief available. 


I don't think it's my role as judge of the Superior Court -- I am not an Appellate Division judge -- to look at the transcripts of child support hearings and pass on whether a particular judge handled that hearing properly.  I would indicate for the record that I have a number of transcripts that were submitted by Mr. Davis -- Poldwalk (phonetic) -- I have that transcript.  That individual's not



a plaintiff.  Mr. Cohn is not a plaintiff.  Mr. Vincent is not a plaintiff.  Mr. Tolbert is not a plaintiff.  Mr. Cruz is not a plaintiff, and Mr. Sweeney.  There are some plaintiffs where I do have the transcripts -- of Mr. Leonard, of Devon Square, of James Thompson, of Todd Logan, and of Gary Davis.  Mr. Logan filed an appeal and Mr. Davis filed an appeal.  So, there are Mr. Leonard, Mr. Square and Mr. Thompson and Mr. Merritt -- I have that transcript -- so, I have four transcripts of four plaintiffs in this case, and I don't believe it's my role to look at those transcripts and to pass on whether or not the judge in those cases properly conducted an Ability to Pay Hearing.  It really is an issue for an appellate court, and certainly there have been appeals -- and I'd have to indicate that there are hundreds, perhaps thousands, of child support hearings conducted throughout the State of New Jersey because of the large number of children who are being supported as a result of a divorce or parents who are not married, living separate and there is child support owed.  So, I am not convinced at this point that this is appropriate under 4:32, and I'm not convinced that it's appropriate for me to review the findings of another judge.


The one issue I am concerned about, however -- the one issue that raises some questions to the Court is the issue of when these hearings are held.  When a -- and I know




what the argument is -- the argument is -- and it's the argument that I would make if I was in the position of the Deputy Attorney General, and Ms. Stoop has made this argument -- that there's a difference, that these are individuals -- actually there's two classes of individuals  -- there are those individuals who have failed to appear for their hearing and a warrant has been issued, and Ms. Stoop, the Deputy Attorney General, would argue that that's different than an Ability to Pay Hearing.  These are people who have failed to appear in court, and there in a different status.  There are also those people who have failed to appear who have warrants on other things, and the position is there's no need to bring that -- there are actually two classes; those people who have failed to appear, and the only reason that they're being held is because of their failure to appear, that's one class.  Then there is another class of people who have failed to appear, but they've got warrants against them, and having been a judge long enough I know that, you know, often times when you pick a defendant up and you run him through the computer, there are other things.  And, I think the policy has been -- and I don't particularly have any problems with this position -- that if you have a defendant who's been picked up on a Failure to Appear Warrant for failure to pay child support, and that defendant has other warrants, that there's really no urgency


to have that obligor brought before the court for a hearing when that defendant's going to be held on other things, and it's probably a criminal matter. 



But, I am somewhat troubled by the notion that a person who has failed to appear, and there's nothing else holding that defendant, that if that person would have to wait potentially two weeks to come before the court.  I am concerned about that.  And, I know that Mr. Davis suggests that the court adopt the standard set forth in Rule 3:4-1 -- I believe that's the rule -- where criminal defendants where bail has not been set are required to come before the court within 12 hours.  I'm not convinced that that's the proper standard, 12 hours.  But, my sense is 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 a reasonable period of time.  And, my sense is that it probably should be within 72 hours.  It probably should be within 72 hours.  Now, that's a number I've -- you could say that I've arbitrarily taken it, but I have given some thought to it particularly in light of the fact that if a person is picked up on Friday that that -- it's impossible to have probation and all the other people available to participate in a hearing over the weekend.  It's just logistically -- and because of the failure to appear, I think there is some justification for waiting a certain


period of time, and I think 72 hours is probably the right period of time because that encompasses if you pick somebody up on a Friday that the hearing would be on Monday. 

So, that's where I am right now.  I do have some concerns about not having a hearing for a period of two weeks, and I would indicate that that is apparently the practice in Mercer County.  It may very well be the practice in other counties.  I don't know whether that is the practice. 



And, then there is the issue of review hearings.  In other words, once you have a defendant who appears in court on a Failure to Appear Warrant -- you pick him up on a Friday, you bring him to court -- or her, although most of these cases involve men, there certainly are women also who have child support obligations -- when you bring that obligor to court on Monday morning, and then you have an Ability to Pay Hearing, which clearly the Ability to Pay Hearing has to involve a very fact sensitive specific inquiry as to the ability of this obligor to pay, and that's the case law.  And, there's an established remedy if an obligor feels that they have not been treated properly.  And, I don't even have any problem in the context of an order saying very specifically what the standard is.  But, it would seem to me that there should be some sort of standardized review of these cases, and that it probably



should be every two weeks because circumstances may change.  You may have an obligor who a court decides that they have the ability to pay $1,500 and in two weeks the obligor comes back and says to the judge, judge I've tried hard and I have $1,000.  I think there should be some type of a review after two weeks.  I don't think that that's unreasonable.  And, it's interesting because I did -- I contacted a judge in criminal to find out whether they review bails, you know, how do they review bails in criminal?  And, apparently, they don't review the bails unless there's a motion to review bail.  But, I think that child support's a little different.  I don't know if we need to put the onus on the child support obligor to file a motion.  I just think probably there's something to be said for bringing an obligor back in a

two-week period to review his or her status.  Economic circumstances change, and I think that's probably an appropriate period of time to review. 


So, those are my initial thoughts.  I have read every affidavit and every certification.  With reference to the four plaintiffs who have not filed appeals to which I have transcripts for, I would encompass them within the 72 hour review, and those are -- actually I would encompass all of the plaintiffs that have been identified by Mr. Davis -- I think there's ten of them -- who have not filed an appeal -- I would encompass them within the 72 hour review.  So,


those are my initial thoughts.  Mr. Davis?

MR. DAVIS:  Judge, taking in order -- initially, Your Honor has indicated that you don't feel this is a -- an appropriate class-action.  Well, Your Honor didn't give any reasons.  Perhaps I can ask this as a question and then respond.  There are requirements of numerosity, technicality, commonality --


THE COURT:  But there -- the commonality is really -- every case is fact sensitive, is different.  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.


MR. DAVIS:  Judge, initially, in a civil rights context, the Third Circuit has certified a class of one when there's a credible allegation that civil rights are being violated, a class of one.  Here we have at least ten.  Your Honor, each one of these plaintiff's civil rights was violated.  That's indisputable because there are reversals from the Appellate Division.  I'm not asking you to review the trial court, I'm asking you to see the pattern that is going on, and the pattern is the consistent failure at the Ability to Pay Hearing to make any inquiry into the assets that are available -- any.  Your Honor --


THE COURT:  The Appellate Division has made a decision in a few cases.  There are thousands of cases every year to which there are no appeals.

MR. DAVIS:  Judge, the Appellate Division has ruled in 100 percent of the appeals brought, and there are now eight summary reversals from 12 respected appellate judge, all of whom -- at this point, Judge, it's a two-page  standard form.  If Your Honor looks at the later reversals, they see these coming, they just issue the standard form that says there was no inquiry made in the assets of obligor, the order incarcerating him is, therefore, reversed.  Your Honor has copies --


THE COURT:  Well, you know, there are cases in civil cases where probably judges have a different opinion about verbal threshold.  Do you then join all plaintiffs who have filed lawsuits in the Civil Division who because of judge's perhaps misapplication of the verbal threshold, do you certify that as a class?


MR. DAVIS:  Judge, we're not talking about somebody's "right to pursue pain and suffering" from an automobile accident, we're talking about liberty.  We're talking about the second most severe punishment outside of death that the State can impose on a person.  Every constitutional protection has to be honored when you're talking about taking somebody's liberty away.  Judge, I want


to pursue this, but just very quickly, as far as the commonality, I cited case law, Vargas v. Calabrese, 634 F.Supp. 910 from the Third Circuit that says there must be some questions of law or fact in common, some.  And, that emphasis -- the, either the bold or the italics, is in the original case.  Some -- we don't have to have exact.  Obviously, you're not going to have --


THE COURT:  The four standards that are articulated in 4:32 and the three other criteria that are specified in the second part of the rule are collective.  They're not either, or.  You need to have all of them.  And, I don't know how you convince the Court that there's numerosity.


MR. DAVIS:  Judge, there was 53,000 child support enforcement hearings last year.  In a civil rights context as I indicated, a class of one, and I'll provide that case to the Court if it would be helpful.  But we have at least ten.  We have ten people that sat, some of whom for 45 days, the longest one for 93 days without any kind of review of his child support obligation.  That's a person that had I believe four children.  Those children were deprived not only of the financial child support that this person could have provided if they had been out and working, they were provided (sic) of the love and companionship that every child's entitled to.


THE COURT:  All right.  I don't want to hear about the love and companionship; these are also people who blatantly failed to pay child support.  But, I'll let the State respond and, if you want reasons, I have a tentative write-up.  I'd be happy to set forth the reasons.

MR. DAVIS:  Judge, I would ask the Court to more carefully scrutinize the transcripts that were presented.  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.  As a result -- I mean, because of the concerns by the Court and

-- my initial impression is to encompass those individuals within the 72 hour review in order to deal with that, 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.

MR. DAVIS:  I'm not asking you to, Judge. 


THE COURT:  I mean -- yes.


MR. DAVIS:  I'm very clearly not asking you to.

THE COURT:  So, that my thought in terms of how the court deals with what may be potentially a problem is to require that those individuals -- and I have the transcript of four of the plaintiffs.  There are certain plaintiffs that you've listed who have not appealed that I don't have the transcript for, but I would include those plaintiffs, as well, within a 72 hour review.


MR. DAVIS:  Judge, it sounds like Your Honor's granting relief as to the plaintiff class at least as to one of the areas of relief sought which is a more quick review.  Judge, from my own personal knowledge I can represent that in Middlesex they do it every single day that court is in session.  Ocean -- different counties do it two or three times.  Mercer is among --

THE COURT:  That's not before me.  I don't have -- I mean --

MR. DAVIS:  Your Honor, if I can clarify that the point you have stated several times that you -- you're not an appellate court, and I'm not asking you to be one.  What I'm asking you to do is to look at the overwhelming evidence presented before you -- and, Judge, as an officer of the court, this is every transcript I have and every transcript is wrong.  I'm asking you to look at the fact that it --


THE COURT:  Well, I don't know whether every


transcript is wrong.  You have appealed a number of cases.  There are one, two, three, four, five, six appeals.

MR. DAVIS:  Eight, Judge.

THE COURT:  Now, there are thousands and thousands of child support hearings every year in the State of New Jersey, and I would suspect that there would be a number of appeals and that there would be a number of individuals who would prevail on appeal.  That happens in child support cases.  It happens in divorce cases.  It happens in termination of rights.  It happens in a number of cases. 


MR. DAVIS:  Judge, in most appeals it's not 100 percent reversal rate.  I think the present reversal rate on average is 28 percent.

THE COURT:  Yes, but I don't know how many other appeals have been filed.  You've given me six appeals where you have prevailed.  There may have been hundreds of other appeals where there weren't --

MR. DAVIS:  Judge, just for the record, I see my reply brief sitting on the bench, and Your Honor has referred to some of the attachments in the exhibits, but none of the arguments that are contained in the reply brief.          THE COURT:  I've read -- well --

MR. DAVIS:  I'm sure -- you haven't just -- you haven't referred to them in any way, Judge, and --


THE COURT:  I've referred to each and every one. 


I don't know how far you want me to go.

MR. DAVIS:  Okay.  Judge --

THE COURT:  What other argument do you have?  Tell -- give me your best argument on when a person should be reviewed once they've been picked up on a Failure to Appear Warrant.

MR. DAVIS:  Judge, I want to be clear for the record that there's no challenge to the present procedure of picking somebody up who fails to appear who was properly noticed.  That's not challenged


THE COURT:  All right.  So what does the court do?  You've got a defendant who has been served.  There is proof of service with a green return receipt card, you have a defendant.  What's your reaction to the practice of having a review hearing twice a month?

MR. DAVIS:  Judge, I would submit that that is long.  If the criminal standard of 12 hours, which I understand may not be appropriate, that this person -- there is evidence that they failed to appear -- it's not a criminal standard --

THE COURT:  What's your reaction to a 72 hour review hearing?


MR. DAVIS:  That would certainly, Judge -- I mean, that's adequate.  I believe that that's appropriate especially if you consider -- I would think it should be


done every day the court is in session, and that will sometimes necessitate a 72 hour if there's a holiday weekend.  But, Judge --

THE COURT:  What's your position on once a determination has been made as to brining that obligor back to court?

MR. DAVIS:  Judge, the focus of this complaint is what happens at those hearings.  They shouldn't be brought back --

THE COURT:  Well, you've also asked the Court -- you've also asked the Court to require that there be a hearing within a certain period of time.


MR. DAVIS:  That's correct, Judge.

THE COURT:  That's one of the things that you're seeking relief on.  And, so I'm asking you, what's your position on bringing a obligor back to court every two weeks?


MR. DAVIS:  If there is evidence that that person has the ability to pay -- and that's the point that we're going light on here, Judge, that I want to focus on -- if there's evidence that person has the ability to pay, review them every two weeks and see if they have decided that they will write the check.  What I'm concerned about, Judge, is the people who are in jail right now who can't write the check, who don't have the money, who don't have the assets


who are sitting here on open-ended civil commitments --

THE COURT:  But, those individuals can effectuate an appeal.


MR. DAVIS:  Judge, how can they effectuate an appeal?  That's why this is a class action.  I went down to the jail because I was -- I've been retained on eight -- on six cases -- two of these were pro bono -- on six cases where I went down to the jail and I spoke with the person and I got them out.  The last case, who is not a named plaintiff, a man named Ronald Sweeney -- when I went down to the jail to visit him -- they now have all the child support obligors in one area -- and I learned that the system is still the way it was a year and a half ago, which surprised me -- that all of these people are sitting in here.  Judge, in the courtroom right now is Todd Logan --

THE COURT:  I --

MR. DAVIS:  -- and one of the other plaintiffs and, Your Honor, these people were sitting in here with -- $10,000 release amounts.  They don't have it, and it's wrong, and it's a violation of their civil rights. 

THE COURT:  But, they're now out.  They filed an appeal, and --


MR. DAVIS:  Jude, one of them filed an appeal, Judge, the other 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.

MR. DAVIS:  I understand you don't want to, but these are people that were deprived for their liberty for -- the longest was 93 days.  Judge Council stated on the record and it's quoted in our reply brief, "I have people who have sat in jail for six months owing me a few thousand dollars."  That's stated by Judge Council, and that is wrong.  That is a violation of the civil rights of these people.

THE COURT:  I don't have that -- do I have that transcript?


MR. DAVIS:  Yes, you -- no, Judge -- yes, you do, Judge.  That is Ray Tolbert, and I can tell you that that --

THE COURT:  Ray Tolbert -- all right.  Don't -- don't -- I have --

MR. DAVIS:  I can tell you which exhibit number it is, Judge.

THE COURT:  Well, that's -- okay.


MR. DAVIS:  Judge, these people have a civil right not to be incarcerated "coercively" if they don't have the ability to pay.  And, I'm not asking Your Honor to review any one of these individual -- to sit as a court of review for Judge Hayser or Judge Blackburn or Judge Kelly, but what Your Honor needs to see here is that there is a pattern, and it's an ongoing pattern.  Judge, I'm a sole practitioner.  I


don't have the resources to get a thousand transcripts.  What I've presented you, I've testified as an officer of the court, is every transcript I've had.  I have yet to see an Ability to Pay Hearing -- no that's not true -- I've seen very few Ability to Pay Hearings where the person had the ability and they were appropriately incarcerated.

THE COURT:  Well, you haven't reviewed all the transcripts of the many thousands of child support hearings.       MR. DAVIS:  Judge --

THE COURT:  All right.  I understand your argument.  Let me hear from the other side.  React to his -- to Mr. Davis's request for class action certification.



MS. STOOP:  Your Honor, obviously, I find it completely inappropriate not only for the reasons that Your Honor has stated, but in reviewing Mr. Davis's reply brief, I realized that Mr. Davis makes a statement at the end, "It is the system that is being challenged, not the character of any of the defendants, named or otherwise."  And, the relief that Mr. Davis is seeking -- he's named the wrong -- the wrong defendants, Your Honor.   Suing Superior Court judges in order to try to get this system changed, is not appropriate.  The Superior Court judges don't establish policy for the judicial system of New Jersey.  That is left to the Administrative Office of the Courts, otherwise known as the AOC.  If Mr. Davis is looking for a change in the


system, he should be suing or bring to court the AOC, not six Superior Court judges. 

As you pointed out, in addition, naming six Superior Court judges and throwing out transcripts from a very small number of hearings is inappropriate to support a class action suit.  So, not only has he named the wrong defendants, including by the way Judge Locascio and Judge Cavanagh in Monmouth who never even dealt with any of these plaintiffs' incarcerations, he's also trying to bring a class action suit based on an infinitesimal number of cases, which is inappropriate under the requirements of the rule.


THE COURT:  Do you know how many child support cases are heard every year in New Jersey?

MS. STOOP:  I would hate to even guess, Your Honor.          

THE COURT:  There's probably at least 30,000, but I don't know that for a fact.  But, anyway, go on.


MS. STOOP:  So, he's -- number one, he's named the wrong party to try to gain the relief that he is seeking.  He is -- has -- he has alleged inadequate hearings, but in reviewing the transcripts that he did supply, I think it's difficult for him to show that every judge is not inquiring because if you look at the transcripts some of the judges do indeed ask about, do you have a job, you know, did you have a job, how long did you work, when did you stop -- this kind


of thing.  Perhaps Mr. Davis finds that inadequate, but there was not a lack of any kind of inquiry in many of these transcripts as to a person's ability to come up with some kind of payment. 

As you had mentioned, Your Honor, just as an aside, the children that he is trying to bring in as plaintiff class is completely inappropriate.  Minors are not permitted to bring a lawsuit unless they have some kind of authority or authority figure representing them or looking after their interests.  And, this is not present in this case. 


          That really is basically what I would argue in addition to the arguments Your Honor has already made regarding the class action.

THE COURT:  Now, let me ask you this.  You've heard the Court's comments with reference to the concern when an individual is brought back on a failure to appear --

MS. STOOP:  Yes.

THE COURT:  -- and in trying to structure a time period that might be appropriate, I've come up with this concept of 72 hours and then a two-week review thereafter.  What's your reaction to that?


MS. STOOP:  Well, my initial reaction, Your Honor, to the two-week review is that it's my understanding that in Mercer County this is what occurs.


THE COURT:  They're doing that --

MS. STOOP:  They're doing that.

THE COURT:  Yes, but not the initial one --

MS. STOOP:  No, not the --

THE COURT:  I'm concerned about the initial --  right.

MS. STOOP:  That's correct.  The initial one -- it's my understanding that -- and I have to plead -- I'm just learning this as we go along, Judge --

THE COURT:  Okay, but -- right, but there are --

MS. STOOP:  -- but, it's my -- oh, I'm sorry.

THE COURT:  There are -- are there people here --


MS. STOOP:  Yes, Your Honor. 

THE COURT:  -- from any of the counties?  Okay.  It's my understanding that people are brought in -- that they do hearings twice a month -- so, if somebody's brought in on a failure to appear and they just had a hearing, that person could sit for another 14 days.  That's my understanding.

MS. STOOP:  My understanding, Your Honor, may be a little different.  My understanding is that on the first -- and I have people out here from probation waiting to answer any questions you might have, Your Honor --


THE COURT:  All right.  Well, I'd like to know what --


MS. STOOP:  It's my understanding that on the first and third Thursdays there are videotaped interviews with people at the jail, and then there are in addition to that official hearings before the court on the second and fourth Thursday of the month.

THE COURT:  Right, but they're not seeing a judge potentially for 14 days?

MS. STOOP:  That's correct.  They would be interviewed by a court official of some kind on the first and --

THE COURT:  A probation person, I assume.

MS. STOOP:  -- on the first and the third.


THE COURT:  Because I know that often times the Probation Department will try to negotiate and try to see if they can resolve the matter. 

MS. STOOP:  As far as the 72 hour -- as the 72 hour --

THE COURT:  Hearing --

MS. STOOP:  -- limitation period is concerned, I'm not quite sure how to address that.  The -- my problem is that I'm trying to represent three -- at this point, people from three separate counties who do things in three different ways.


THE COURT:  In one of the counties, they bring the person in the next day according to the certification.


MR. DAVIS:  Middlesex, Judge.

MS. STOOP:  I believe that was Middlesex County, Your Honor. 

MR. DAVIS:  I'm not sure if she had a certification, but I know that in Middlesex they bring them in every day -- every morning that the court --

THE COURT:  Okay.  Well, I don't have Middlesex.  I only have Monmouth, Mercer and Ocean.  Those are the only counties that are involved in this.  But, here we go, in Ocean County, it's the next business day or the next -- usually the next business day, so that's Ocean.  And Monmouth must be -- they say four days.  Okay, that's --


MS. STOOP:  The only problem I see with --

THE COURT:  It's the other way around?  Okay, let me see what we've got here.  This is Ocean County.  This is a little confusion (sic).  If the obligor does not pay the purge amount, he or she will remain incarcerated until the next court day, which is usually the next business day.  Therefore, the longest possible period of time that an obligor would be incarcerated on his Failure to Appear Warrant is three non-business days. 

MS. STOOP:  I think they mean like a holiday weekend, Your Honor.

UNIDENTIFIED SPEAKER:  That's Ocean. 


THE COURT:  Yes, that's Ocean.


UNIDENTIFIED SPEAKER:  I --

THE COURT:  Now, I think -- is Carpenter from Monmouth?

MS. STOOP:  Carpenter is from Monmouth County.

THE COURT:  Oh, okay, Carpenter is from Monmouth.  So, Monmouth is generally one day, and Ocean County -- thank you -- Ocean County is four days, the longest possible period of time, because they review in Ocean Tuesday, Wednesday and Thursday.


MS. STOOP:  Yes.  The only problem that I see as a possible problem, Your Honor, is the availability of court personnel.  As I'm sure you're well aware, Family Court is very, very busy. 

THE COURT:  Well, but -- yes, I understand that, but that's still no excuse for not -- to have somebody sit in jail for 14 days before being brought before the court.  I know the argument that's made is that it's a failure to appear so that they've sort of given up --

MS. STOOP:  Right, we waited for them, Your Honor.  They didn't show up.

THE COURT:  I understand.

MS. STOOP:  We gave them the opportunity to come in and talk to us --

THE COURT:  I understand that, but --


MS. STOOP:  -- and they thumbed their nose.


THE COURT:  Even somebody picked up on a warrant in a criminal case goes before the court before 14 days.  It would seem that somebody on a child support should be brought before the court sooner than that, it would seem to me. 

MS. STOOP:  I guess -- I guess, Your Honor, what I would say would be that I understand Your Honor's concern and that they -- that these obligors be brought within a reasonable period of time.  I'm just not sure what the reasonable period of time would be given the --

THE COURT:  Well, let me --

MS. STOOP:  -- the court situation.


THE COURT:  Yes, well, I'm more concerned about the rights of the obligors than I am about the resources of the court because I think that that's a significant issue.  My sense is that this may be something that the Family Practice Committee should be taking a look at and making a recommendation to the Supreme Court, and perhaps what the Court should do is set a 72 hour review standard subject to this matter being considered by the Family Practice Committee and recommendations being made to the Supreme Court.


MS. STOOP:  May I ask, Your Honor, I just want to make sure that I'm clear.  When you're speaking about the 72 hour window, you're addressing that solely to people who are


picked up --

THE COURT:  Picked up on a warrant.

MS. STOOP:  -- only on failure to appear charges  --

THE COURT:  And only in those --

MS. STOOP:  -- and do not have other --

THE COURT:  Other -- that's correct, that's correct.

MS. STOOP:  My other concern, then, is notification and whether or not the Family Part would be notified in a timely manner.


THE COURT:  Well, the jail would just notify the Family Court.  That's -- that happens all the time.  That happens all the time.  You have some people from probation?

MS. STOOP:  I do, Your Honor. 

THE COURT:  I'd like to ask just a couple of questions.

MS. STOOP:  May I go and get them, Your Honor?

THE COURT:  Yes, please.

                         (Pause)

MS. STOOP:  Your Honor, this is Ms. Nancy Desaw (phonetic).

THE COURT:  Yes.


MS. STOOP:  -- who's a supervisor of the Bench Warrant Unit and Ms. Cynthia Vanek (phonetic) who is the


Assistant Probation Officer in charge of child support enforcement.

THE COURT:  All right.  I just have a couple questions.  Come on up here, and Mr. Davis I'll give you an opportunity to ask any questions that you'd like, as well.  I just want to get some information.

MS. STOOP:  Where would you like them Your Honor?

THE COURT:  They can just come right up here.

MS. STOOP:  Thank you, Your Honor. 

MR. DAVIS:  We have a seat for them, Judge, if they'd like it.

THE COURT:  Pardon me?


MR. DAVIS:  We have a seat for them if they'd like it.  Judge, I would prefer if they're in front of a microphone.

THE COURT:  Yes, I'm going to have them sit right here.  Ms. Vanek, why don't you go to the microphone right here?

MS. VANEK:  Sure.

THE COURT:  And, I'm just going to ask you a -- these are just procedural questions.

MS. VANEK:  Sure.


THE COURT:  I have -- when a defendant -- when an obligor is picked up on a -- let me swear you in first.  I don't want to take a lot of testimony, I -- these are just


procedural questions, but let me swear you in.  Will you raise your right hand?

C Y N T H I A   V A N E K, DEFENSE WITNESS, SWORN

N A N C Y   D E S A W, DEFENSE WITNESS, SWORN

THE WITNESS:  Yes, I do.

THE COURT:  And, your full name?

THE WITNESS:  Cynthia Vanek.

THE COURT:  And, your full name?

THE WITNESS:  Nancy Desaw.

EXAMINATION BY THE COURT:

Q    Ms. Vanek, you're employed by the Probation Department?


A    Yes, I am.

Q    And, how long have you been with the Probation Department?

A    Twenty-six years.

Q    Okay.  When an obligor is picked up on a Failure to Appear Warrant and that person is held, it's my understanding that it's -- the hearings are held twice a month before a judge, is that correct?

A    That's correct, that's correct.

Q    Is that the first and third or second and fourth Thursday?

A    Second and fourth Thursday.


Q    So, if a defendant were picked up -- if the


hearings were today at let's say nine o'clock in the morning, and an obligor was picked up this afternoon, it's possible that that obligor wouldn't see a judge for 14 days?

A    That's correct.

Q    Is that correct?

A    Um-hum.

Q    Okay.  And, you have video conferences on the --

A    Conferencing --

Q    -- first and third Thursday?

A    First and third of each month.

Q    What does that entail?


A    We have an investigator from the bench warrant, they appear and they ask the obligor a series of questions.  We have a form here with all the questions on it if you need to know the questions.

Q    That's just a dialogue between somebody from probation and the obligor, correct?

A    Yes.

Q    Okay.  Now, when the obligor who's picked up this afternoon is not going to have that hearing for two weeks, when that person goes before the judge, that hearing is in the context of why didn't you appear, and then I guess there's a review of their ability to pay the child support amount?


A    That's correct.


Q    So, it's really two-fold; why didn't you come to court, and then there is, I guess, an Ability to Pay Hearing?

A    Um-hum.

Q    Is that correct?

A    I would say so, yes.


Q    Okay.  All right.  Do you have any questions because she's a -- Ms. Vanek has established what I thought was the case, and just so that you know, my concern is having an obligor sit for two weeks without going before a judge.  When that -- let me ask you this -- when the failure to appear person is picked up, and they have that hearing in two weeks, is that person reviewed again two weeks later?

A    The obligor is picked up --

Q    The obligor is picked up --

A    We have the video conferencing before he --

Q    Well, let's assume he's picked up, there's a hearing today -- hearings are today.  Let's assume that we're having hearings the -- what's the date today -- this is the second Friday of the month?

UNIDENTIFIED SPEAKER:  The eleventh.


Q    Today's the eleventh.  It's the second Friday of the month.  Let's assume that in Mercer County you have hearings the second and fourth Friday of the month, and we've now had our hearing for those individuals who were


entitled to hearings, but we've picked up somebody this afternoon who failed to appear --

A    Um-hum.

Q    -- on a requirement to come to court.  They're not going to have -- go before a judge for two weeks, correct?

A    That's correct.

Q    Okay.  Now, they're going to have their video conference next week --

A    Right.

Q    -- with the Probation Department, and the purpose of that is to update information?

A    Yes.


Q    -- so, that you can then provide information to the court when you go before the judge?

A    Correct.

Q    Okay.  Now, you -- this person's had their hearing two weeks from now, which is the 25th.

A    Um-hum.

Q    Is that person going to be seen again?  When is that person going to be seen again?

A    If the person is remanded?

Q    Yes.

A    In two weeks.


Q    In two weeks -- so the first hearing potentially is two weeks, and then the next hearing is two weeks.  Okay.


And, how do we know whether those people are being reviewed in two weeks?  There's a representation that those people are not being reviewed.

A    We keep a tracking record of everyone that has appeared in court and if they're remanded.  Everything's kept on a data base. 

Q    Okay.  And, are there defendants who are picked up -- excuse me, please -- I don't want -- not you.  You're pointing, you're talking -- no talking -- no pointing, no talking.  Be seated.  Now, I lost where I am. 

MR. DAVIS:  You were asking about how long they're held with prior -- in between reviews, Judge.


THE COURT:  All right, that's right.

Q    Now, are there individual obligors who are picked up and have detainers for other things?

A    Yes, there are.

Q    Okay.  And, is there a different standard for review for those individuals?

A    Yes, there are.

Q    Okay.  And, if a person -- if all the other detainers are taken care of, is there a way that you know so you can bring that person to court?

A    Yes.  The Bench Warrant Supervisor, Nancy Desaw, keeps in close contact with the jail.


Q    So, she would know when a person is being released


--

A    Right.

Q    -- or when they're eligible for release?

A    Um-hum.

Q    Is that correct?

A    Definitely, yes.

Q    All right.  Do you have any questions of Ms. Vanek?

MR. DAVIS:  Judge, briefly.

CROSS EXAMINATION BY MR. DAVIS:

Q    You indicated that you've worked for Probation for 26 years?


A    Um-hum.

THE COURT:  You're going to have to say yes or no.

A    Oh, I'm sorry.  Yes.

Q    How long -- what's your capacity been for 26 years, have you been in the same position?

A    No.  I started as an investigator, promoted to probation officer, to senior probation officer, to supervising probation officer, to assistant chief.

Q    Okay.  So, you're now the assistant chief?

A    Um-hum.  In child support, yes.

Q    Okay.  Now, you've testified that people are reviewed every two weeks?


A    That's correct.


Q    Let me ask you this.  Do you personally attend the hearings for judges -- set release amounts for child support violators?

A    Do I personally attend?  No, I do not.

Q    Okay.

A    We have a court liaison that attends the hearings.

Q    Okay.  Then, what's the basis of your knowledge that they're reviewed every two weeks after they're remanded to the jail?

A    The basis of my knowledge is I oversee the entire division, and I meet with my supervisors on a monthly basis, and we go over procedures.


Q    So, it's just from a procedural standpoint, it isn't that you see orders in individual cases?   That's not within --

A    Do I see orders in individual cases?  No, I do not.

Q    Okay.  How many hearings would you estimate have occurred, how many child support enforcement hearings where somebody was remanded to the jail in the -- say in the time that you've been in your present position?

THE COURT:  Let's do it on a -- how many child support hearings are held every month?

THE WITNESS:  Just for the -- you mean jail cases, correct?


MR. DAVIS:  Jail cases.


THE WITNESS:  We're speaking of --

THE COURT:  No, all enforcement hearings.

THE WITNESS:  All enforcement hearings?

THE COURT:  All enforcement hearings?

THE WITNESS:  There's 350 a month just for enforcement hearings, and then with the jail cases vary.  And, they can be --

THE COURT:  So, 350 a month, so there's over say about four or 5,000 a year?

THE WITNESS:  Um-hum.

THE COURT:  Is that correct?

THE WITNESS:  Yes, that's correct.


Q    And, how many of those are jail cases?

A    Jail cases, I'd say approximately about 15 a hearing, so maybe 30 a month.  Does that sound correct to you, approximately?

MS. DESAW:  In some instances.

A    In some instances -- it varies.

MS. DESAW:  It varies.

THE COURT:  About 30 a month?  All right.

THE WITNESS:  It varies.

THE COURT:  So, maybe 500 a year?

THE WITNESS:  Yeah.

THE COURT:  Four or 500 a year?  All right.


Q    In those jail cases, does each of the defendants 


-- are they asked how much of a release amount can you pay?

A    The judge asks --

Q    They are asked that?

A    I believe so.

MS. DESAW:  Excuse me -- yes --

THE COURT:  I don't -- no, no.  They don't -- they can't testify.  She's not at the hearings.  How does she know what the judge might -- and I want to go -- my question was about the two weeks.  I wanted to verify the two weeks.  I don't want to get too far from this.


Q    Would you be -- let me ask you one other question before I ask you that one.  You said that a data base is maintained by probation?

A    Um-hum.  That's correct.

Q    And, is that a -- do you know whether or not that's a duty that's imposed on probation by statute or by the Administrative Office of the Courts?  Who has determined that probation --

A    We have prepared that on our own just as a tracking system.

Q    And, according to this tracking system somebody is flagged every two weeks and brought back to court if they're being held solely on a child support warrant?

A    We try to --


Q    Or -- I'm sorry, on an inability to pay a release


amount?

A    We check our -- yes, we check the cases every two weeks to make sure, you know, if they're still in there, you know, what the status is of the case --

Q    And, how many people are --

A    -- and update our records.

Q    If you know, approximately how many people are in the jail right now as  -- who were not able or have not paid the release amount that was set?

A    Nancy would know that.  I do not know that amount.


THE COURT:  I'm not going to allow that.  Quite frankly, I called her for a very limited purpose and if you want to question her with reference to the two weeks or the review that's fine.  I don't want to go beyond.  I've got a full motion calendar this morning.  Do you have any other questions with her with reference to the issues that I raised, with reference to the two weeks and the review?

Q    Would you be surprised to hear that Judge Council told somebody that he was going to leave them in for six months if they didn't pay $10,000?

THE COURT:  That's absolutely inappropriate to ask this witness that question.


Q    Okay.  Have you ever heard of the court -- does the court always follow the two-week remand rule, or do judges sometimes set their own?


A    No, we follow that.

Q    And, you have no knowledge of anybody ever being sent for six months?

A    No.

THE COURT:  They may have been held, but they've got other detainers?

THE WITNESS:  Yes.

Q    Without other detainers, with absolutely nothing else holding them?

A    Not to my knowledge.


Q    How -- what is the longest that you've ever heard of a person being kept in a jail for failure to pay a release amount?

A    Six weeks, the longest -- that's what I've heard.

THE COURT:  Six weeks?  All right.

Q    Not 73 days -- you've never heard of --

THE COURT:  All right.

MR. DAVIS:  I'm sorry, Judge.

THE COURT:  Once again, I don't want to go -- all right.  Thank you, thank you.  All right.  Anything else from the attorney general's position?

MS. STOOP:  Excuse me.


THE COURT:  You were talking about the class.  I had asked you about the -- your response to a 72 hour rule that would require probation to bring a person before the


court within 72 hours rather than two weeks and having other reviews for two weeks.  You've now had the benefit of hearing some review of procedures from Mercer County.  Anything you want to add to what you indicated before?

MS. STOOP:  No, I don't think so, Your Honor.  I think I would just reiterate that a reasonable period, I think, is understandable based on what Your Honor has said.  I think it's just a problem determining what a reasonable time period would be based on logistical problems as much as anything else, Your Honor. 

THE COURT:  All right.


MR. DAVIS:  Judge, I would like to briefly close if I have that opportunity?

THE COURT:  Sure, absolutely.

MR. DAVIS:  First, Judge, if I can inquire -- is Your Honor certifying the defendant class if you're going to impose the 72 hour rule on judges across the State?

THE COURT:  If I impose a 72 hour rule, that certainly would impact Monmouth County, Ocean County, and Mercer County.

MR. DAVIS:  Judge, are people in Essex County less worthy or do they have less rights?


THE COURT:  Well, to the extent that this -- if I issue a written opinion that's published, it -- I don't know the impact on other counties, quite frankly.


MR. DAVIS:  Judge, at least as to class certification, I would ask that Your Honor order that probation produce a list of how many people are presently in the jail.  I think that that impacts directly on whether or not there is sufficient numerosity if that's what Your Honor is denying defendant class status on.

THE COURT:  You've -- go on.


MS. STOOP:  I would object, Your Honor.  As I tried to point out earlier, the defendant class cannot be certified because they are not the correct plaintiff -- I mean -- I'm sorry, the correct defendant in this.  The named defendants, the five judges who are named here, represent only three counties in the State, and they are not the policy makers for the judicial system in the State of New Jersey.  They are inappropriate defendants for the relief that Mr. Davis is seeking.

MR. DAVIS:  Judge, if I may very briefly -- there is no --

THE COURT:  And all of them had Ability to Pay Hearings.  The representation or challenge by counsel is that the judge didn't handle the hearing properly.

MS. STOOP:  Correct.  He is only challenging the adequacy of --

THE COURT:  Of the findings --


MS. STOOP:  -- these five judges, and that is far


from what is required for a class certification.

MR. DAVIS:  Judge, initially, if I can address --

THE COURT:  Anything further before --

MR. DAVIS:  Yes, Judge, I'll --

THE COURT:  I can give you about three minutes, and I've got to move on.


MR. DAVIS:  I'll do this as quickly as possible, Judge.  I don't want to give the transcriber a nightmare, though.  Judges Locascio and Cavanagh did not commit any acts as to the list of plaintiffs that committed the acts as to the plaintiff class.  There's transcripts that demonstrate that.  As to whether the AOC or the judges are responsible and are the proper defendants, it is -- the duty is on the judges.  The duty is on the judiciary to hold these hearings correctly and to not violate the civil rights of the obligors that come before them.  Minors, Judge, have civil rights.  They can't contract, they can't sue in a contract, but there are plenty of cases all the way up to the United States Supreme Court -- I'm sorry, I didn't write the cite down -- but the black arm bands during the Vietnam War, that was a case that was brought by minors to the United States Supreme Court in their own name.  It's only in a contract action that you have to do it through an adult.


Judge, let me finish -- first of all, I know right now unless they were released yesterday at their hearings,


Samuel Tucker and James Pool are two people right now in the jail with multi-thousand dollar release amounts who don't have it.  I don't know which judge reviewed them -- I guess I'm going from here to the --

THE COURT:  They may have been -- who's to say that the judge didn't properly conduct an Ability to Pay Hearing?


MR. DAVIS:  Judge, finally, let me close with this, and I realize it's a loaded statement, if I were to show you a dozen transcripts from around the State where judges were saying to people, you're African-American so I'm going to throw you in jail, how many of those would you need before you would say, this is a violation --

THE COURT:  That's totally -- why are you saying that?  There's no --

MR. DAVIS:  Because it is a violation of civil rights.

THE COURT:  But, there's no evidence that that occurred in this case. 

MR. DAVIS:  Judge --

THE COURT:  If you want to argue a particular premise or proposition in this courtroom --

MR. DAVIS:  Yes --


THE COURT:  for -- in this particular case, don't give me examples that are not part of the record.


MR. DAVIS:  Judge, it's a perfect analogy.  

THE COURT:  It's not a perfect analogy.

MR. DAVIS:  I'm not saying that that's what happened, although ten of the 11 plaintiffs do happen to be African-American, that' not what I'm -- the premise that I'm bringing now, that's for a later day.  But, what I'm saying, Judge, is if I show you egregious violations of civil rights from the trial court, how many do you need before you decide it's a class action, Judge?


THE COURT:  All right.  Mr. Davis, thank you.  Thank you.  All right, let me indicate for the record, I think I'm going to -- I'm sort of tempted to issue an opinion today from the bench, but there have been a number of issues raised, and I think I want to take some time, outline the arguments that have been made, particularly the class.  I'm going to give you my tentative thoughts right now. 


As I indicated before, I am not satisfied that there's been a proper showing of class certification for a host of reasons.  There's no showing, really, of commonality.  Each case is fact sensitive and different.  There's not showing of numerosity.  There are thousands and thousands of child support hearings every year.  The other standards that are articulated in 4:32, I can mention them now, but I've got a whole courtroom of people, and I've got


to be done today by 12:30 and it's now a quarter after ten.  But in a written opinion I will outline the four factors in 4:32 and the three additional factors that are the second part of the rule because I'm not satisfied that there is a class as to the plaintiff or the defendant.


With reference to the court reviewing these particular cases and making any findings, I have some concerns from some of the transcripts, and as a result of that I think there's some propriety of the Court ordering that the persons who are plaintiffs in these cases who have not filed an appeal because of the question as to whether they had a hearing within 72 hours -- order that those cases be reviewed.  I am not going to serve as an Appellate Court in this case. 


The one issue that's been raised by counsel that does cause me some concern is the possibility of an obligor who is picked up in Mercer County on a day that hearings have been held, and that person is picked up after these hearings and would have to wait for 14 days.  My initial thoughts are that anybody picked up on a Failure to Appear Warrant should go before a judge within 72 hours.  That judge should address the issue of the failure to appear and the ability to pay and go through all the standards that are part of established case law under Pierce v. Pierce and Saltzman v. Saltzman, and that those obligors be subject to



another review every two weeks that they remain incarcerated.  Now, I don't know what other counties do, but my intention would be to write an opinion and to distribute it to counsel and probably submit this for publication because I think it's an issue that's significant enough, that's important enough that every obligor have the right to have a hearing within 72 hours.  And, I would also indicate that I will leave the record open until Wednesday, so if either Mr. Davis or Ms. Stoop wants to supplement the record and convince me as to any issue which is before the Court, I will give you until Wednesday.  I would generally give you longer, but quite frankly I think it's important to move this matter forward rather than to delay.  So, I will give you until Wednesday.  My hope would be to issue a written opinion probably on Friday or perhaps the following Monday.  All right.

MR. DAVIS:  Judge, I want the Court to be aware that I am going to seek emergent review, obviously not now until next Wednesday because it's now become interlocutory  -- but before

THE COURT:  You can -- you can file whatever relief you want.


MR. DAVIS:  I understand, Judge.  I just -- I wanted the Court to be aware of that before you wrote a written opinion that might be subject to --


THE COURT:  Mr. Davis, you take whatever action you think is appropriate.

MR. DAVIS:  Of course, Judge.

THE COURT:  I'm going to make my findings and put them in writing under Rule 1:7-4 --

MR. DAVIS:  Thank you, Judge.

THE COURT:  If you want to file an appeal or take emergent relief, certainly you have the right to do that.

MR. DAVIS:  Of course, Judge.

THE COURT:  Thank you.

MS. STOOP:  Thank you, Your Honor.

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C E R T I F I C A T I O N   

 

 

I, DENISE M. O'DONNELL, the assigned transcriber, do hereby certify the foregoing transcript of proceedings on tape number CI7-02-LRF, index number from 01 to 4657, is prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate compressed transcript of the proceedings as recorded, to the best of my ability.

 

_______________________________


DENISE M. O'DONNELL

 

Approved by:

 

_________________________________

JOHANNA LiMATO          AOC # 179

 

J&J COURT TRANSCRIBERS, INC. Date: ______________________