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Kavadas v. Martinez
MER-L-1004-15
Hon. Mary Jacobson, AJSC
New Criminal Courthouse
400 North Warren Street - 4th Floor
Trenton, NJ 08650
          
Kavadas v. Martinez challenges the automatic suspension of driver's licenses for nonpayment of child support without a reasonably recent hearing to determine if a default was willful. It does not challenge the ability of a court to suspend a license where there has been a recent showing that it would have a legitimate, coercive effect. The suit also seeks to have counsel appointed as the New Jersey Supreme Court has determined a license suspension to be a "consequence of magnitude" mandating this protection. Under the current system, an obligor never, at any point in the process, receives a Mathews-compliant hearing and is never appointed counsel. Finally, plaintiffs seek to end the practice whereby the MVC suspends an obligor's license but does not inform them of the suspension until afterwards (in violation of a specific statute mandating that suspensions are to be effective 20 days after imposed). New Jersey's counterproductive system of blatantly unfair automatic suspensions explains in large part why we, the third wealthiest State in the country, rank #16 in collections. Because the current scheme is blatantly unconstitutional and violative of statutory protections, and for the sake of the kids who need support (and fairness toward those required to pay it), this needs to change.


New---> On 10/30/18, the court indicated that, while it could not meet its previous 11/1/18 date estimate, "the decision is nearing completion." <--- New


WWOR story on suit (March, 2017):

Briefs / primary arguments
Discovery, correspondence to/from court, and other documents
The legal issues in a nutshell
Next scheduled events
Transcripts / audio
Orders
Events / Chronology
Pleadings (complaint, motions, etc)
Press Release (filing of complaint, 5/1/2015)
Stats on effect of current system (updated hourly)
Selected Media Coverage
Additional contacts for press
About the Law Office of David Perry Davis, PC
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           The effects of the current process since the May 1, 2015 filing of the complaint:


           "expedited." - wrong person, wrong order, wrong license number, support having been paid but not credited by probation, or some other error within the system. People like James Hines, who shares a name with a noncustodial parent and whose social became linked with a case in Essex. In spite of multiple orders affirming that it's a case of mistaken identity, he continues to have his license suspended without a hearing. None of those erroneously suspended received notice that the suspension was being imposed (they'll find out when they get pulled over and issued a $250-500 summons for Driving While Revoked, or when they get an after-the-fact suspension notice from the MVC). All of them face having their car towed, being issued a summons, being arrested and having to post bail. None of them did anything wrong whatsoever. It is disappointing that the State is fighting over the issue of providing people with the statutorily mandated notice before a suspension is effective - it would seem to be a simple issue of fairness. Instead of volunarily remedying at least this aspect, the State opposed a motion for partial summary judgment, instead submtting an affidavit from the MVC openly admitting it is violating the statute and essentially providing no excuse for doing so. There are an average of 400 erroneous suspensions per year At least some of these people will be unable to make the $500 bail for Driving While Revoked and will be jailed until the error is corrected. It is the Constitutional mandate of our Attorney General to protect the rights of the people. He should not be spending our tax dollars to fight this issue.

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Next scheduled events:

No events scheduled. Awaiting decision from August 23, 2016 oral argument.

           The effects of the current process since the August 23, 2016 argument of the motion / cross motion for summary judgment:

           years "expedited"

________ Briefs and attachments (primary arguments ) ________ 

Motion for summary judgment:

        Brief in support of Motion for Summary Judgment - PDF (December 15, 2015) (without exhibits: 138 pages)

        Brief in support of Motion for Summary Judgment - PDF (with exhibits: 1,466 pages)

        Brief in support of Motion for Summary Judgment - RTF

        Brief in support of Motion for Summary Judgment - Web page

        Brief in support of Motion for Summary Judgment - Word format

           Exhibit A        Exhibit B        Exhibit C        Exhibit D        Exhibit E       

           Exhibit F         Exhibit G        Exhibit H        Exhibit I         Exhibit J       

           Exhibit K        Exhibit L        Exhibit M       Exhibit N       Exhibit O       

           Exhibit P        Exhibit Q        Exhibit R        Exhibit S        Exhibit T       

           Exhibit U        Exhibit V        Exhibit W      Exhibit X        Exhibit Y


                 Links to all case law, studies, sources cited.


State's Cross-motion for summary judgment:

State's Brief in opposition and in support of cross motion (July 1, 2016)

        Defendant's Statement of Material Facts

        Defendant's Response to Plaintiffs' Statement of Material Facts

        Defendant's Certification of DAG Francesco Ferrantelli and unpublished case

        Defendant's Certification of Patricia Risch (DFD) in support of cross motion

        Defendant's Certification of Carol Spisak (OIT) in support of cross motion

        Defendant's Certification of Dennis Maddalena (MVC) in support of cross motion



Plaintiffs' Reply Brief and attachments
Plaintiffs' Reply Brief (July 25, 2016) (PDF)

Plaintiffs' Reply Brief (July 25, 2016) (Web page)

Plaintiffs' Reply Brief (July 25, 2016) (MS Word)

Plaintiffs' Reply Brief (July 25, 2016) (RTF)

        Exhibit Z referenced in Reply Brief ("Dear Colleagues" letter from DOJ)

        Plaintiffs' Certification of counsel and unpublished cases

        Plaintiffs' Reply to Defendant's "statement of material facts."

        Plaintiffs' Reply to Certification of Patricia Risch (DFD)

        Plaintiffs' Reply to Certification of Carol Spisak (OIT)

        Plaintiffs' Reply to Certification of Dennis Maddalena (MVC)


                          Links to all case law, studies, sources cited.


Notice of Supplemental Authority in reference to In re Adoption of JEV , decided the day after filing of Reply Brief (August 5, 2016) ((PDF)


Motion to amend complaint


Links to all case law, studies, sources cited in summary judgment brief and appendix.




Motion for partial summary judgment:

Plaintiffs' motion for partial summary judgment (August 21, 2015)

                  Brief only (12 pgs), without exhibits (smaller download)


Sur-replies and responses:
Plaintiffs' Reply to defendants' sur-reply brief (July 19, 2015):

Defendants' Sur-reply brief (July 17, 2015):



Initial briefing / application for preliminary injunction:

Plaintiffs' Brief in support of preliminary injunction and attachments (May 1, 2015):

                  Brief only, without exhibits, etc (smaller download)

Defendants' Brief  in opposition  (June 26, 2015):

Plaintiffs' Reply Brief and attachments (July 13, 2015):


____________ Transcripts / audio ____________ 

Transcript of Oral Argument of motion and cross motion for summary judgment (August 23, 2016)

           Written summary of oral argument

Audio (MP3) of Oral Argument on application and cross-application for summary judgment (August 23, 2016)

Transcript of Deposition of retired Hearing Officer Norman Epting (September 3, 2015)
                                          Mini (4 pages to a page) format

Transcript of Deposition of Paulo Arede (September 22, 2015)
                                          Mini (4 pages to a page) format

Transcript of Deposition of LaQuay Daniels (September 22, 2015)
                                          Mini (4 pages to a page) format

Transcript of Deposition of Andreana Kavadas (September 15, 2015)
                                          Mini (4 pages to a page) format

Transcript of Deposition of Alisha Grabowski (September 15, 2015)
                                          Mini (4 pages to a page) format


Transcript of oral argument on defendant's motion to dismiss and plaintiffs' application for a preliminary injunction (July 22, 2015)



____________ Orders ____________ 


Consent Order Amending Caption (substitue Christopher Porrino for Robert Lougy as AG) (July 29, 2016)

Case Management Order (July 22, 2016)

Case Management Order (May 23, 2016)

Order granting motion to amend complaint (April 18, 2016)

Case Management Order (April 1, 2016)

Case Management Order (February 12, 2016)

Case Management Order (January 20, 2016)

Case Management Order (December 11, 2015)

Case Management Order (November 16, 2015)

Mediation Referral Order (November 9, 2015)

Case Management Order (October 28, 2015)

Case Management Order (October 9, 2015)

Order delaying partial summary judgment motion until final adjudication (August 27, 2015):

Case Management Order (August 3, 2015)

Protective Order as to plaintiffs' NJKiDS and FACTS records (July 31, 2015)

Order on defendant's motion to dismiss and plaintiffs' application for a preliminary injunction (July 22, 2015):
                                                                                                               Explanation / summary of order

Scheduling Order (July 9, 2015)

Scheduling Order (June 12, 2015)

Scheduling order (June 4, 2015):

____________ All other documents ____________

Letter from court: While it could not meet its previous 11/1/18 date estimate, "the decision is nearing completion." (10/31/2018)

Response from court: Decision expected by November 1, 2018 (8/28/2018)

Email and correspondence to Senator Shirley Turner as to returning to mediation with ODR (8/28/2018)

(Second) letter regarding appealing the lack of a decision as a "de facto denial" on September 1, 2018 (8/23/2018)

Correspondence from court regarding status of decision (1/9/2018)

Correspondence regarding potentially appealing the lack of a decision as a "de facto denial" (1/6/2018)

Correspondence to court regarding status of decision (11/17/2017)

Correspondence to court regarding procedural dismissal letter as to service of Robert Lougy, Acting AG (1/25/2017) (Court called in response - notice sent in error)

Post-argument correspondence to court / Response regarding triennial review of support obligations (9/2/16)

Post-argument correspondence to court from Deputy Attorney General regarding triennial review of support obligations (8/29/16)

Post-argument correspondence to court correcting name of party cited (James Hines) as example of worst-case scenario of automatic suspension (8/24/16)

Correspondence from DAG as to extending time for submission of opposition (3/30/2016)

Correspondence to court agreeing to two week adjournment, not one month (1/15/2016)

Correspondence to court from DAG RE seeking one month adjournment (1/14/2016)

Correspondence to court from DAG RE discovery issues (10/6/2015)

Correspondence to court from plaintiffs RE discovery issues (10/6/2015)

Correspondence to DAG with proposed letter to judge as to discovery deficiencies (9/29/2015)     

Defendants' purported answers to plaintiffs' interrogatories (9/18/2015)

Defendants' purported responses to plaintiffs' Request for Admissions (9/18/2015)

Letter from defendants RE Depositions of plaintiffs on Wednesday, September 21, 2015

Plaintiffs' response to Notice to Produce (9/28/2015)

Plaintiff Paulo Arede interrogatory answers (9/28/2015)

Plaintiff LaQuay Dansby interrogatory answers (9/28/2015)

Plaintiff Andreana Kavadas interrogatory answers (9/28/2015)

Plaintiff Alisha Grabowski interrogatory answers (9/28/2015)

Letter from defendants RE discovery (9/1/2015)

Order delaying partial summary judgment motion until December (PDF) (August 27, 2015):

Defendants' letter objection to motion for partial summary judgment (PDF) (August 25, 2015):

Plaintiffs' motion for partial summary judgment (August 21, 2015)
                 Brief only (12 pgs), without exhibits (smaller download)

Defendants' interrogatories to Andreana Kavadas

Defendants' interrogatories to Paulo Arede

Defendants' interrogatories to Alisha Grabowski

Defendants' interrogatories to LaQuay Dansby

Defendants' Notice to Produce Documents

Defendants' Notice to take depositions of plaintiffs on September 15, 2015

Defendants' answer to complaint

Letter from defendants' counsel as to scheduling depositions

Plaintiffs' discovery requests - cover letter

Plaintiffs' discovery requests - Interrogatories

Plaintiffs' discovery requests - Request for Admissions

Case Management Order (August 3, 2015)

Plaintiffs' proposed stipulations (July 31, 2015)

Protective Order as to plaintiffs' NJKiDS and FACTS records (July 31, 2015)

Plaintiffs' position as to discovery and Proposed consent order to vacate the default entered July 29 (July 31, 2015)

Defendants' position as to discovery necessary for court to address the merits (July 30, 2015)

New Scheduling Order (July 15, 2015)

Plaintiffs' partial consent (as to statutory interpretation) and partial opposition (as to addressing other issues) (July 15, 2015)

Defendants' request to file sur-reply as to statutory interpretation and appointment of counsel issues

New Scheduling Order (July 9, 2015)

Plaintiffs' request to submit brief July 13 (rather than July 9, 2015)

New Scheduling Order (June 12, 2015)

Plaintiffs' opposition to request (June 12, 2015):    

State's letter requesting second adjournment (June 11, 2015):    

State obtains first adjournment of hearing for preliminary injunction:

Scheduling order (June 4, 2015):

State's letter requesting first adjournment (June 3, 2015):

Amended Complaint (identifiers removed - no substantive changes) (May 22, 2015)

First case management conference / scheduling order:

Scheduling order (May 8, 2015):

Case docketed in / assigned:

Track assignment (May 4, 2015)

Complaint, Brief, OSC, attachments (all in one file) (May 1, 2015)

Brief in support of preliminary injunction and attachments (May 1, 2015):

____________ Pleadings ____________

Complaint (May 1, 2015):

Application for preliminary injunction / order to show cause (May 1, 2015):

First Amended Complaint (identifiers removed - no substantive changes) (May 22, 2015)

Second Amended Complaint (Adds AOC as defendants in non-judicial role and individual probation officers) (April 26, 2016)
(Although no new amended complaint was filed, a stipulation of dismiss as to the individual probations officers was filed in May, 2016)



____________ Events / chronology ____________

January 26, 2014: Correspondence to MVS and other defendants pointing out the issue and seeking to avoid litigation (pre-suit)

June 17, 2014: (Non) Response from Administrative Office of the Courts

April 21, 2014: Correspondence to AOC on counterproductive enforcement measures (DL issue discussed page 15-17)

January, 2015: Research in earnest begins.

May 1, 2015: The suit, along with an application for a preliminary injunction, is filed.

June 26, 2015: Defendants filed a motion to dismiss and deny class certification.

July 13, 2015: Plaintiffs filed a reply brief.

July 17, 2015: Defendant filed a sur-reply brief.

July 22, 2015: Oral argument was held and an order issued denying preliminary injunction and setting schedule for discovery.

August 21, 2015: Plaintiffs filed a motion for partial summary judgment as to the "20 day notice" issue or (brief only, without exhibits - smaller download) .

September 3, 2015: Norman Epting, Esq., (retired hearing officer supporting the suit), is deposed.

September 4, 2015: The Division of Family Development provides information as to the racial breakdown
of those subjected to automatic driver's license suspensions (70% of those subject to automatic suspensions are people of color).

September 15, 2015: Plaintiffs Andreana Kavadas and Alisha Grabowski deposed.

September 22, 2015: Plaintiffs Paulo Arede and LaQuay Dansby deposed.

October 19, 2015: Discovery concluded / closed.

December 15, 2015: Plaintiffs' motion for summary judgment filed.

January - March 2016: The parties attend mediation through the Office of Dispute Resolution. Defendants assert that mediation cannot produce results as the AOC is not a defendant.

April 2016: Plaintiffs file a motion to amend the complaint to include the AOC (in its non-judicial role) as a defendant.

May 2016: With the AOC now added as defendants, the parties return to mediation -- only to have defendants assert that there is no settlement authority to even discuss any changes to the automatic suspension process.

July 1, 2016: Defendants file a cross motion for summary judgment and supporting brief.

July 25, 2016: Plaintiffs file a reply brief.

August 23, 2016: Oral argument was held (Audio file (MP3) / Transcript)

November 17, 2017: A letter is sent to the court pointing out that its been 15 months since argument and inquiring into the status of receiving a decision.

January 6, 2018: A letter is sent to the court pointing out that its been 18 months since argument and indicating an appellate action will be filed under the "de facto denial" doctrine

January 9, 2018: The court responds that the case is under consideration, but no date certain for a decision can be provided

January 11, 2018: The New Jersey Law Journal publishes an article regarding the lack of a decsion 500 days after argument

August 18, 2018: Senator Shirley Turner (D - Mercer) writes an Op Ed regarding the injustice of financial-related license suspensions

August 23, 2018: On the second anniversary of oral argument, a letter is sent to the court inquiring into the status

August 26, 2018: An email is sent to the Attorney General's office inquiring about returning to mediation in light of the change of governors

August 28, 2018: Correspondence is sent to Senator Turner asking her to reach out to the Attorney General's office to ask them to return to mediation


____________ Selected Media Coverage ____________

New Jersey Law Journal Article on delays in case (January 11, 2018)

New Jersey Law Journal Article on delays in case (January 8, 2018)

Chasing News | WWOR story on suit:




Bergen Dispatch (December 19, 2015)
        (PDF version)
               Please note that I didn't say, nor do I believe, that the Division of Family Development "lied" to the legislature. The DFD's
       funding is based on what percentage of support they collect - they have no motivation to maintain a
       counter-productive system. So "cui bono from the current counter-productive system?" The current system coerces the statistically small
       portion of obligors who can but won't pay. It thus crushes those in poverty (only 1% of those in default on a support obligation earned in
       excess of $40,000 the year preceding default) in favor of squeezing those who are able to pay.
       This was a policy decision: throw the poor (primarily non-white) obligors under the bus in order to squeeze out a few bucks for
       middle-class obligees. It's clear that one Director of the AOC several years ago (not the
       current staff of the AOC) is responsible for the current "no notice" warrants and the reduction of due process (by, for example, ordering
       that delinquincy notices be served by regular rather than certified mail with a nonsense check of "databases" that would reflect address
       changes by middle-class obligors, but not those in poverty).
                 The MVC also benefits from the current system, but it has been in place long before Chief Adminstrator Martinez took over and
       there is nothing in his history or charectar that would suggest he is intentionally supporting a system that takes millions out of the mouths
       of children in poverty to enrich the MVC.
               Research is continuing and eventually there will be an update on this issue.


New Jersey Law Journal (December 18, 2015):
        (PDF version)

Media Coverage: Bergen Dispatch (January 28, 2015):

Media Coverage: New Jersey Law Journal (January 26, 2015):

Media Coverage: CBS Philadelphia (May 4, 2015):

____________ Press Release ____________

Class Action Suit Challenges Automatic Driver's License Suspensions In New Jersey

Trenton, N.J., May 4, 2015, A class action lawsuit, filed in the New Jersey Superior Court, challenges the automatic suspension of driver's licenses imposed on parents behind on child support payments. The suit claims that the automatic suspensions are unconstitutional, contrary to the "clearly expressed legislative intent" and "obviously counter-productive."

The suit names as defendants Raymond P. Martinez, in his official capacity as Chief Administrator of the New Jersey Motor Vehicle Commission, John Jay Hoffman, Esq., in his official capacity as Acting Attorney General Attorney General, and Natasha Johnson, in her official capacity as Director of the New Jersey Division of Family Development.

"New Jersey is the only state in the country that suspends license in this way," said David Perry Davis, a Pennington, New Jersey attorney who filed the class action civil rights matter. Most states suspend an average of 250 licenses per year. In 2014, the State of New Jersey suspended 20,498 driver's licenses.

Additionally, all other states provide a hearing before suspending a license, yet 20,381 of the 20,498 licenses suspended in New Jersey during 2014 (99.429%) were suspended automatically.

"It doesn't make sense. The idea that automatically suspending someone's driver's license because he is in arrears will force him to pay child support is an example of a well-intentioned but not well thought-out law. The suspension of a driver's license prevents a parent from going to work, applying for a job, or seeing his children. It's absurdly self-defeating. When one considers the devastating effects of suspending a license, it should be obvious that this should not be done casually," said Davis.

While the suit does not seek to prevent judges from suspending driver's licenses under any circumstances, it attempts to limit the practice so it would be allowed only when "all other enforcement options have been exhausted."

"If a taxi driver who earns cash is refusing to pay his support, threatening to suspend a license may be the only effective method of forcing him to pay. Judges should have this as an option, but only if the facts of a case justify it. But what makes zero sense is the practice of automatic suspensions when arrears exist," said Davis.

"This anomaly in our law occurred over 16 years ago. In a 2006 report on the effect of license suspensions, the New Jersey Motor Vehicle Commission has already publicly made recommendations to change the system, pointing out the devastating economic effect of suspensions on the average driver."

Davis said that, although he is confident that the courts would eventually rule in his favor, he is hopeful that when the law's absurdities are brought to light, the state will sit down and address the problems with the current law. "Constitutional litigation can drag on for years through the courts, and the situation cannot wait. Every month, roughly 1,700 people are being improperly deprived of their licenses. It is hurting a whole lot of people. It needs to be addressed sooner rather than later," Davis said.

"I sincerely hope that all involved will work together to reach a resolution that supports what this law originally set out to do: Increase the collection of support in a fair, non-self-defeating way."

"The ultimate decision as to whether the state will fight this or work to reach a fair and constitutional resolution rests with the governor and his staff," Davis said. "The basic issue here is really very simple. You can't take a parent's drivers license away, rendering him unable to work, and then punish him when he doesn't pay support. It's common sense.

The case has been assigned to Judge Mary Jacobson of the Superior Court in Trenton. A hearing on a requested preliminary injunction should be held within the next 10 days.


____________ Additional contacts for press: ____________

Please note that none of the following people were involved in the suit. They are not supporters of it and are not in any way associated with this office. They are potential contacts as a result of their qualifications. All have knowledge of the suit and its arguments:

Honorable Bradley Ferencz, JSC (retired). Judge Ferencz sat the Family Part of the Superior Court and presided over many ability to pay hearings. He is now a mediator with Hoagland Longo Moran Dunst in New Brunswick: (732) 545-4717

Honorable Thomas H Dilts, PJFP (retired). Judge Dilts also sat the Family Part of the Superior Court and presided over many ability to pay hearings. He is now a mediator in private practice at 20 N Bridge St, Somerville, NJ 08876. (908) 231-7647

Shavar Jeffries, Esq. Noted civil rights attorney T 973.422.6432

Mr. Jeffries led the constitutional law clinic at Seton Hall Law School for several years and was involved in a similar matter, Dowe v Chisea, which raised a challenge to a provision in the same law that prevented people with support arrears from being awarded electrician licenses.

Barbara Moses, Esq., Director of the Civil Rights and Constitutional Litigation Clinic at Seton Hall Law School (973) 642-8700 / Barbara.Moses@shu (dot) edu


____________ Legal issues: the five minute summary ____________

         This is just a summary that hopefully explains the issues quickly and simply. It doesn't address all the issues nor does it cover them in depth. There's more detail in the briefs.

I. Right to counsel
         Under the New Jersey Constitution, a person is entitled to representation if they face a "consequence of magnitude" in a court proceeding, including a loss of a driver's license. This is a separate analysis from a right to counsel under the Due Process clause of the New Jersey Constitution. Under the current process, counsel is never appointed for an indigent obligor facing a loss of license.

II. Statutory violation:
         New Jersey law (N.J.S.A. 2A:17-56.44) requires that anyone who has his/her license suspended is entitled to receive 20 days warning before the suspension is effective. This gives drivers the opportunity to stop driving and if (as occurs roughly 400 times per year ) there is a mistake as to the order and the person shouldn't be suspended (wrong person, wrong order, support was paid but not credited by probation ), to address the issue with the court and correct the error without being issued a summons or arrested for Driving While Revoked.
         The Motor Vehicle Commission does not ever comply with this statute when a child support warrant is issued. Even though there is a specific statute instructing it to do so, the MVC has adopted the position that license suspension orders are effective immediately (a proposition that has no support anywhere in the record). The MVC thus suspends the license, then notifies the driver of the suspension (as in this sample, where a license is suspended 12/16/2008 and the driver notified on 12/21/2008. As explained in more detail below, an obligor is not entitled to (and does not receive) any specific notice as to when a suspension is coming.
         As all plaintiffs carry arrears in excess of the amount due for two weeks support, all of them (as well as over 50,000 other New Jersey citizens) live under the threat that a warrant and licnese suspension may be issued "at any time" and "without additional notice." Two of the four plaintiffs have received tickets for Driving While Revoked based on suspensions imposed without notice.

III. Statutory Interpretation:
         The purpose of the license suspension statute / option is to increase the collection of child support. Warrants being entered "without further notice" (as per Directive #15-08 , see top of page 4) on an unpredictable basis is obviously counter-productive to this purpose. Like nuclear war, it is the threat of a suspension that coerces. When there is only an open-ended threat without a specific date that it will occur, and without providing an opportunity to be heard before a suspension is imposed, it impedes rather than furthers the legitimate goal (See Deposition of retired Hearing Officer Norman Epting at pages 45-47).
         The law sets out a detailed procedure and factors that need to be explored before a license is suspended. Such a hearing is held in .057 percent of cases. 108 people suspended last year received a proper hearing - 20,498 did not. This system is not operating as the legislature intended. Suspensions without notice are contrary to the overall legislative intent. A threat is what works: A solid threat saying that on a date certain something will happen unless a hearing is requested or a payment is made not only makes sense, it's what the legislature obviously intended.

IV. Constitutional / Procedural Due Process:
        Both the United States and New Jersey constitutions hold that, as a matter of due process, a license cannot be taken away unless the process provided to the licensee is compliant with the Supreme Court's decision in
Mathews v. Eldridge. Mathews requires, in relevant part:
        That a licensee receive adequate notice and an opportunity to be heard before a license is suspended. It requires that, at a hearing, the State show that its purpose (here, to increase support collections) will be served by suspension.
         In New Jersey, when a child support obligor falls into arrears, for whatever reason, they are required to attend an "enforcement of litigant's rights" hearing. At this hearing, roughly 80% of obligors are placed on "two week bench warrant status."
         There is no requirement that the state examine whether a license suspension would be helpful in coercing payment before "two week bench warrant status" is imposed.
        Once on "two week bench warrant status", if an obligor ever develops arrears that exceed the amount of support due for two weeks, an arrest warrant can be issued.
         When an arrest warrant is issued, the obligor's license is suspended automatically.
        Under directives issued by the Supreme Court, this warrant is issued "without further notice."
         Therefore, when an obligor falls into arrears at any time, a warrant can issue resulting in a license suspension.
        Like tens of thousands of others, all four plaintiffs in the suit are indigent. They have carried arrears for years that exceed the amount due for two weeks support.
         The state sends out, on an apparently random basis, a "Notice of Delinquency" or a "Notice of Intent to Issue Bench Warrant." Sometimes they come every month. Sometimes they come every six months. In one case (Andreana's), probation issued a "Notice of Intent to Issue Bench Warrant" on the very same day that they issued a warrant and suspended her license. Sometimes they're not sent at all. Plaintiff Paulo Arede has never received either notice (or any other warning notice).
                 The notices do not contain a specific date that a suspension will be imposed / warrant issued.
                 The notices do not advise the obligor they have a right to a hearing before his/her license is suspended.
         All of the plaintiffs have testified that they have, at one time or another, contacted probation and indicated that they are unable to pay. All of them were given, at best, generic "file a motion" suggestions and, more usually, a more gruff "pay up immediately or else - I don't care what your situation is." None of them were told they have the right to a hearing before a license suspension was imposed.
         Additionally, the entire concept of notice rests on the assumption that an obligor is both literate and speaks English. Plaintiff Paulo Arede is one of the 17% of the New Jersey Population who are functionally illiterate, and, like every other obligor, at no point in the process are the repercussions of failing to pay (nor actions to take if an inability to pay arises) individually explained. While he has been provided with a translator for some court appearances, the few notices he has received are all in English.
        So - The bottom line is, under the current process:
                  • An obligor never at any point in the process receives a Mathews-compliant hearing where the State has to show that suspending an individual's license will serve the state's interest in collecting support rather than being counter-productive.
                • An obligor is never advised that they have the right to a hearing before a suspension is imposed.
                 • An obligor is never provided with a specific date that the suspension will be imposed - once on "two week bench warrant" status and in arrears for an amount in excess of the amount due for two weeks' support, they are in a legal grey zone where a suspension can come at any time.
                 • There absolutely no effort to ensure that an obligor has even a minimal understanding of the process nor of his/her right to a hearing before a license is suspended.
         Whether by reason of illiteracy, or lack of education, or intimidation from interacting with our legal system - the existing process explains why none of the plaintiffs understood their basic rights, and why the suspension of the licenses of LaQuay, Andreana, and Paulo were counter-productive.          The procedure for license suspension in New Jersey does not satisfy the Federal Constitutional minimum set out in Mathews v. Eldridge - without even addressing the higher level of protection our State Constitution provides.


V. Constitutional / Substantive Due Process:
        The courts have been clear (in six published cases), that even though the suspension of a driver's license intrudes on a person's "right" to a license, the State's interest in enforcing child support outweighs the driver's interest.
        However, no State to address this issue has encountered a situation where licenses are suspended without specific notice that a suspension is imminent nor a hearing. And, most importantly, no court has addressed the issue of automatic suspensions -- because no other State in the country automatically suspends driver's licenses. New Jersey bears the dubious distinction of being the only State to do so. As a result, there is and can be no evidence that suspensions have lead to the collection of support over and above that collected via warrants. It is absurd to believe that a person is somehow more motivated to get out of jail (the result of a warrant being issued) because their license has also been taken.
         With this key distinction, New Jersey cannot demonstrate that there is a counterveiling interest that outweighs a driver's interest in her license.
        New Jersey's process therefore violates substantive Due Process.

VI. AOC and legislature both exceeding their authority (separate points in brief)
        The New Jersey Constitution permits the AOC to "legislate" (via promulgating Court Rules) limited to matters of "practice and procedure." Case law has been abudentily clear that it cannot take action that affects substantive rights, and, where there is a conflict, a Directive must yield to a statute.
         By promulgating a Directive that permits the entry of warrants, when doing so will result in the automatic suspension of a license, without a reasonably recent finding of ability to pay, and without any notice to the obligor, the AOC has provided less protection than the statute (which requires specific notice and a chance to request a hearing wherein an obligor's financial circumstances can be explored). The AOC has thus improperly ventured into the realm of the legislature.


        By contrast, issues such as determining the amount of bail someone must pay cannot be controlled by legislation and the Supreme Court has struck down laws that limit judicial discretion. N.J.S.A. §2A:17-56.43 permits an obligor who has proven a hardship to avoid a suspension, but requires that he or she must pay 25% of the past-due child support amount within three working days and establish a payment plan that will satisfy all arrears before the child is 18. (Note that New Jersey doesn't even emancipate at the age of 18). This deprives judges and hearing officers of their essential role in the process -- is more than 25% of arrears possible and appropriate? Is less? If less, will getting the person back to work with a driver's license result in an increased ability to pay support? By placing hard and fast rules into the statute, a judge is reduced to a clerk, and the legislature improperly ventured into the judicial realm and these provisions are therefore unconstitutional.

        There has already been a "test case" on this issue. In Dowe v. Chisea, the trial court ruled that these provisions were unconstitutional. Dowe had become an electrician while incarcerated, yet was not permitted to take the test to earn his license as he had accumulated $30,000 during his ten years in prison. He was thus unable to work and pay support. The trial court struck the provision and an emergent appellate decision affirmed, noting that the purpose of the NJ Child Support Improvement Act is "to increase child support payments, not to inflict counterproductive economic damage on impecunious child support obligors." Unfortunatly, even though the ruling was clear, because it was a test case and not a class action, the State has refused to comply with it and continues to enforce every aspect of the CSIA, even when absurdly counterproductive.


____________ About the Law Office of David Perry Davis, PC ____________

Initially, I cannot accept all the credit for the tremendous amount of research and writing that went into this suit. While working on this has been the largest undertaking of my life (involing more "all-nighters" than I can count and already exceeding the time commitment involved in Pasqua v. Council, , counsel from the National Coalition for a Civil Right to Counsel (NCCRC) were practically law professors on the case, providing invaluable knowledge, research, editing and suggestions. Both the NCCRC and the Public Justice Center gave generously of their time, effort, and considerable talent. Please consider donating to them.

Law students from Rutgers Law School pro bono project were similarly of tremendous help, along with professors from the law school. Others, both private attorneys and non-attorneys, also volunteered to help address a system that is both perpetuating poverty and harming parents and children entitled to support.


David Perry Davis is an attorney in Pennington. He graduated from Rutgers Law School in 1996 and clerked for the Family Part of the Superior Court later that year.

This is the sixth civil rights matter that has been filed by his office. The first, Pasqua v. Council, resulted in the Supreme Court of New Jersey recognizing that an indigent parent facing jail at a support enforcement hearing has a right to have an attorney appointed.

Leonard v. Blackburn resulted in the Appellate Division affirming that people arrested for defaulting on child support must have an ability to pay hearing within 72 hours of their arrest (Order)

In Ricks v. Fowler, Davis worked with the Rutgers Constitutional Law clinic in convincing the court to stop an unfair process whereby support paid for a child who was subject to the "welfare cap" was being taken by the state to repay a welfare grant for other children (meaning the child support paid by a parent wasn't benefiting his child) (Ricks v. Fowler decision)

W.M., K.N., et al v. Carchman, et al, et al (Law Div. 7/05) resulted in the Family Court removing the unconstitutional requirement that family court litigants be required to attend religion-based 12 step programs unless they are offered a non-religious alternative (New Jersey Law Journal write-up on case ).

Following the decisions in both the Pasqua and Leonard cases, New Jersey's child support collection rate went up. This will be the result of reinstating the 7,500 driver's licenses of parents who will now be able to pursue employment and have the ability to pay support.

Davis also participated as a cooperating attorney with the New Jersey ACLU in Occupy Trenton v. Zawacki (Occupy Trenton page at ACLU-NJ, Cover letter, Complaint, order to show cause Supporting Brief, State's Notice of Motion to Transfer matter to the Appellate Division, Video of State Trooper refusing to ID himself to counsel, Video of David Perry Davis on legality of police conduct (pre-lawsuit), Reply Brief from State Certification of Capt Brosnan (Witness for State) State's certification and exhibits State's cover letter Certification of Lougy (Witness for State) State's Brief Certification of Zawacki (State witness) )