Anne Pasqua, et al v. Hon. Gerald J. Council, et al

186 N.J. 127 (2006) (March 2006)A-6875-02T3 (Superior Court, Appellate Division) (September 2005) MER-L-406-03 (Superior Court, Law Division, 2003)
(April 2003) 316 f.3d 412 (3d Cir. 2003) (United States Court of Appeals for the Third Circuit, 2003) (January 2003) Case No. 00CV-2418 (District Court, 2000)
(October 2000)

Pasqua v. Council
successfully challenged New Jersey’s failure to appoint attorneys for indigent child support obligors at enforcement hearings where they face incarceration. In Lassiter v. Department of Social Services, 452 U.S. 18 (1981), the United States Supreme Court held that “an indigent litigant has a right to appointed counsel … when, if he loses, he may be deprived of his physical liberty.” The right to appointed counsel when a (civil or criminal) litigant’s liberty is at stake was also established by the Supreme Court of New Jersey in Perlmutter v. DeRowe, 58 N.J. 5 (1971), by the New Jersey Appellate Division in In the Matter of the Civil Commitment of D.L., 351 N.J. Super. 77 (App.Div. 2002), and via New Jersey Court Rule 5:3-4. Until April 24, 2003, New Jersey was one of approximately a half dozen states that incarcerated unrepresented, indigent litigants at enforcement hearings without providing counsel.The AOC issued Directive #15-08 (along with follow-up Directive #02-14) discussing when warrants should (and should not) be issued and the correct way to conduct an ability to pay hearing so as to do all that’s possible to ensure that only those who are willfully refusing to pay are “coercively incarcerated.”

As a result of this suit, trial courts are to diligently inquire into the indigence of anyone facing incarceration applying the same standard used when a defendant requests a public defender in a criminal matter. As no pool of attorneys exists to represent indigent Family Court litigants (pending further legislative action), incarceration is not available as an option at ability to pay hearings.

In 2011, The United State Supreme Court decided the case of Turner v. Rogers, which held that the Federal Constitution does not always mandate the appointment of counsel under these circumstances. This ruling does not negatively impact the Pasqua decision.

Initially, Pasqua was decided under the State Constitution. States are free to grant more rights than the Federal Constitution. Second, the United States Supreme Court distinguished cases where both parties are proceeding without counsel from those where the full weight of the State is brought against a pro se litigant facing jail. Under New Jersey’s process, essentially all
proceedings seeking to incarcerate a child support debtor are brought by the Probation Department. Finally, the Supreme Court specifically “did not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody.” These cases constitute roughly 58% of all enforcement proceedings.

Oral argument Supreme Court of New Jersey (right click and Save As) (Oct 2005)
Brief of Amicus Curiae Legal Services of New Jersey (Oct 2005)
Defendants’ opposition to Plaintiff’s petition for certification NJ Supreme Court (Apr 2005)
Petition for certification NJ Supreme Court (Oct 2004)
Appellate Division Decision (reversal: avoids the merits) (Sep 2004)
Plaintiff / respondent / cross-appellant’s Brief (Apr 2004)
Defendants’ Appellate Brief-(Dec 2003)
(view online)
(download tif file)
Appellate stay denial, Judge Feinberg’s Sep 19 memo, AOC Directive (Sep 2003)
Opinion (WordPerfect) (Apr 2003)
Plaintiffs’ supplemental Brief (Apr 2003)
Defendants’ supplemental Brief (Apr 2003)
Transcript of Oral Argument (Mar 2003)
Reply brief (Mar 2003)
Defendants’ Brief in Opposition (Mar 2003) Brief in support of order to show cause (Feb 2003)
Order to show cause (Feb 2003)
Complaint (State Court) (Feb 2003)

Federal Court pleadings and court decisions (May 2000-January 2003)

Selected Press Coverage