Pasqua
v. Council
186
N.J. 127, 892 A.2d 663
N.J.,2006.
March
08, 2006 (Approx. 19 pages)
186
N.J. 127, 892 A.2d 663
Supreme
Court of New Jersey.
Anne
PASQUA, Ray Tolbert and Michael Anthony, individually and on behalf of all
persons similarly situated, Plaintiffs-Appellants, v.
Hon.
Gerald J. COUNCIL and Hon. F. Lee Forrester, individually and in their official
capacity as Judges of the Superior Court and on behalf of all Superior Court
Judges of the State of New Jersey who have in the past conducted Ability to Pay
Hearings or who will in the future conduct Ability to Pay Hearings, Hon.
Deborah Poritz, individually and in her official capacity as Chief Justice of
the Supreme Court of New Jersey and Hon. Richard J. Williams, individually and
in his official capacity as Administrative Director of the Courts of the State
of New Jersey, Defendants-Respondents.
Argued
Oct. 24, 2005.
Decided
March 8, 2006.
Background:
Indigent parents who were jailed after being held in civil contempt for
non-payment of child support following child support enforcement hearings
brought § 1983 action against state court judges and administrative director of
state courts, claiming that they had right to appointed counsel under the Due
Process Clause, and that they had been incarcerated in violation of that right.
The Superior Court, Law Division, Feinberg, J., concluded that the Due Process
Clause requires appointment of counsel for indigent child support obligors who
face incarceration. Plaintiffs and defendants appealed. The Superior Court,
Appellate Division, reversed. Plaintiffs filed petition for certification.
Holdings:
Upon grant of petition, the Supreme Court, Albin, J., held that: (1) Due
Process Clause mandates appointment of counsel to assist parents found to be
indigent and facing incarceration at child support enforcement hearings;
abrogating, Scalchi v. Scalchi, 347 N.J.Super. 493, 496, 790 A.2d 943; (2) due
process guarantee of the State Constitution compels assignment of counsel to
indigent parents who are at risk of incarceration at child support enforcement
hearings; (3) parents were not entitled to statutory “prevailing party”
attorney fees from judges who presided over enforcement proceedings; (4)
neither chief justice of the Supreme Court nor administrative director of state
courts was subject to liability in parents' § 1983 action against them.
Reversed.
West
Headnotes
[1]
KeyCite Notes Link to KeyCite Notes
Key
Symbol93 Contempt
Key Symbol93II Power to Punish, and
Proceedings Therefor
Key Symbol93k51 Summary Proceedings
Key Symbol93k51.1 k. In General. Most
Cited Cases
A
contempt proceeding under rule governing summary contempt proceedings on order
to show cause or order for arrest is essentially criminal in nature and is
instituted for the purpose of punishing a defendant who fails to comply with a
court order; at such proceeding, defendant is entitled to counsel and other
safeguards appropriate to criminal proceedings. R. 1:10-2.
[2]
KeyCite Notes Link to KeyCite Notes
Key
Symbol93 Contempt
Key Symbol93III Punishment
Key Symbol93k73 Indemnity to Party
Injured
Key Symbol93k79 k. Imprisonment to
Compel Performance of Act Required. Most Cited Cases
A
proceeding to enforce litigants' rights is essentially a civil contempt
proceeding to coerce defendant into compliance with the court's order for the
benefit of the private litigant, and incarceration may be ordered only if made
contingent upon defendant's continuing failure to comply with the order. R.
1:10-3.
[3]
KeyCite Notes Link to KeyCite Notes
Key
Symbol76E Child Support
Key Symbol76EIX Enforcement
Key Symbol76Ek488 Hearing
Key Symbol76Ek489 k. In General. Most
Cited Cases
At de
novo hearing before superior court judge following recommendations of hearing
officer in child support enforcement proceeding, the court, before ordering
coercive incarceration, must find that the parent was capable of providing the
required support, but willfully refused to do so. R. 5:25-3.
[4]
KeyCite Notes Link to KeyCite Notes
Key
Symbol110 Criminal Law
Key Symbol110XX Trial
Key Symbol110XX(B) Course and Conduct of
Trial in General
Key Symbol110k641 Counsel for Accused
Key Symbol110k641.6 Status and Competence
of Accused Affecting Rights and Waiver
Key Symbol110k641.6(3) k.
Indigence. Most Cited Cases
An
indigent defendant subject to imprisonment in a state criminal case has a right
to assigned counsel pursuant to the Sixth Amendment. U.S.C.A. Const.Amend. 6.
[5]
KeyCite Notes Link to KeyCite Notes
Key
Symbol92 Constitutional Law
Key Symbol92XII Due Process of Law
Key Symbol92k304 Civil Remedies and
Proceedings
Key Symbol92k317 Costs and Fees
Key Symbol92k317(2) k. Indigents;
Proceedings in Forma Pauperis. Most Cited Cases
Key
Symbol110 Criminal Law KeyCite Notes Link to KeyCite Notes
Key Symbol110XX Trial
Key Symbol110XX(B) Course and Conduct of
Trial in General
Key Symbol110k641 Counsel for Accused
Key Symbol110k641.2 Offenses,
Tribunals, and Proceedings Involving Right to Counsel
Key Symbol110k641.2(2) k. Criminal
Nature of Proceeding, in General. Most Cited Cases
Key
Symbol388 Trial KeyCite Notes Link to KeyCite Notes
Key Symbol388III Course and Conduct of
Trial in General
Key Symbol388k21 k. Presence of Parties
and Counsel. Most Cited Cases
The
right to assigned counsel does not depend solely on whether a case is
classified as criminal or civil; rather, it is the defendant's interest in
personal freedom, and not simply the special right to counsel under the Sixth
and Fourteenth Amendments in criminal cases, which triggers the right to
appointed counsel. U.S.C.A. Const.Amends. 6, 14.
[6]
KeyCite Notes Link to KeyCite Notes
Key
Symbol92 Constitutional Law
Key Symbol92XII Due Process of Law
Key Symbol92k251.5 k. Procedural Due
Process in General. Most Cited Cases
Due
process analysis under Mathews v. Eldridge requires consideration of the
private interests at stake, the government's interest, and the risk that the
procedures used will lead to erroneous decisions. U.S.C.A. Const.Amend. 14.
[7]
KeyCite Notes Link to KeyCite Notes
Key
Symbol92 Constitutional Law
Key Symbol92XII Due Process of Law
Key Symbol92k304 Civil Remedies and
Proceedings
Key Symbol92k317 Costs and Fees
Key Symbol92k317(2) k. Indigents;
Proceedings in Forma Pauperis. Most Cited Cases
Key
Symbol110 Criminal Law KeyCite Notes Link to KeyCite Notes
Key Symbol110XX Trial
Key Symbol110XX(B) Course and Conduct of
Trial in General
Key Symbol110k641 Counsel for Accused
Key Symbol110k641.6 Status and
Competence of Accused Affecting Rights and Waiver
Key Symbol110k641.6(3) k.
Indigence. Most Cited Cases
Key
Symbol388 Trial KeyCite Notes Link to KeyCite Notes
Key Symbol388III Course and Conduct of
Trial in General
Key Symbol388k21 k. Presence of Parties
and Counsel. Most Cited Cases
There is
a presumption that an indigent litigant has a right to appointed counsel only
when, if he loses, he may be deprived of his physical liberty; the due process
factors set forth in Mathews v. Eldridge must be weighed against the
presumptive right to appointed counsel that attaches when an indigent is
subject to incarceration. U.S.C.A. Const.Amend. 14.
[8]
KeyCite Notes Link to KeyCite Notes
Key
Symbol92 Constitutional Law
Key Symbol92XII Due Process of Law
Key Symbol92k299 Creation or Discharge of
Liability in General
Key Symbol92k299.3 k. Support of
Persons and Liability for Public Care. Most Cited Cases
The Due
Process Clause mandates the appointment of counsel to assist parents found to
be indigent and facing incarceration at child support enforcement hearings;
there is a strong government interest in enforcing support orders in
furtherance of state's parens patriae responsibility to protect the welfare of
children, and when indigent litigant is forced to proceed at enforcement hearing
without counsel, there is a high risk of an erroneous determination and
wrongful incarceration; abrogating, Scalchi v. Scalchi, 347 N.J.Super. 493,
496, 790 A.2d 943. U.S.C.A. Const.Amend. 14.
[9]
KeyCite Notes Link to KeyCite Notes
Key
Symbol76E Child Support
Key Symbol76EIX Enforcement
Key Symbol76Ek488 Hearing
Key Symbol76Ek491 k. Counsel. Most
Cited Cases
At
child support enforcement hearings, courts must advise litigants in jeopardy of
losing their freedom of their right to counsel under the Due Process Clause
and, if indigent, of their right to appointed counsel. U.S.C.A. Const.Amend.
14.
[10]
KeyCite Notes Link to KeyCite Notes
Key
Symbol92 Constitutional Law
Key Symbol92XII Due Process of Law
Key Symbol92k255 Deprivation of Life or
Liberty in General
Key Symbol92k255(5) k. Diseased and
Mentally Disordered Persons; Addicts. Most Cited Cases
Key
Symbol257A Mental Health KeyCite Notes Link to KeyCite Notes
Key Symbol257AIV Disabilities and Privileges
of Mentally Disordered Persons
Key Symbol257AIV(E) Crimes
Key Symbol257Ak469 Registration and
Community Notification
Key Symbol257Ak469(4) k. Proceedings.
Most Cited Cases
Under
the due process guarantee of the State Constitution, convicted sex offenders
must be notified of their right to retain counsel and, if indigent, appointed
counsel at Megan's Law tier classification hearings. N.J.S.A. Const. Art. 1,
par. 1; N.J.S.A. 2C:7-1 et seq.
[11]
KeyCite Notes Link to KeyCite Notes
Key
Symbol92 Constitutional Law
Key Symbol92XII Due Process of Law
Key Symbol92k299 Creation or Discharge of
Liability in General
Key Symbol92k299.3 k. Support of
Persons and Liability for Public Care. Most Cited Cases
The due
process guarantee of the State Constitution compels the assignment of counsel
to indigent parents who are at risk of incarceration at child support
enforcement hearings. N.J.S.A. Const. Art. 1, par. 1.
[12]
KeyCite Notes Link to KeyCite Notes
Key
Symbol227 Judges
Key Symbol227III Rights, Powers, Duties,
and Liabilities
Key Symbol227k36 k. Liabilities for
Official Acts. Most Cited Cases
Judicial
immunity has been fashioned for the benefit of the public, whose interest it is
that the judges should be at liberty to exercise their functions with
independence and without fear of consequences.
[13]
KeyCite Notes Link to KeyCite Notes
Key
Symbol227 Judges
Key Symbol227III Rights, Powers, Duties,
and Liabilities
Key Symbol227k36 k. Liabilities for
Official Acts. Most Cited Cases
A judge
will not be deprived of immunity because the action he took was in error, was
done maliciously, or was in excess of his authority; rather, he will be subject
to liability only when he has acted in the clear absence of all jurisdiction.
[14]
KeyCite Notes Link to KeyCite Notes
Key
Symbol78 Civil Rights
Key Symbol78III Federal Remedies in General
Key Symbol78k1372 Privilege or Immunity;
Good Faith and Probable Cause
Key Symbol78k1376 Government Agencies
and Officers
Key Symbol78k1376(8) k. Judges,
Courts, and Judicial Officers. Most Cited Cases
Key
Symbol78 Civil Rights KeyCite Notes Link to KeyCite Notes
Key Symbol78III Federal Remedies in General
Key Symbol78k1477 Attorney Fees
Key Symbol78k1482 k. Results of
Litigation; Prevailing Parties. Most Cited Cases
Indigent
parents were not entitled to statutory “prevailing party” attorney fees from
judges who presided over child support enforcement proceedings against parents,
for purposes of parents' § 1983 action against judges, though judges failed to
inform parents of their right to appointed counsel under Due Process Clause, as
judges were clothed with judicial immunity; in presiding over enforcement
proceedings, judges were acting within their jurisdiction and performing
functions normally performed by judges. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. §
1988(b).
[15]
KeyCite Notes Link to KeyCite Notes
Key
Symbol227 Judges
Key Symbol227III Rights, Powers, Duties,
and Liabilities
Key Symbol227k36 k. Liabilities for
Official Acts. Most Cited Cases
The
factors determining whether an act by a judge is a judicial one, for purposes
of conferring judicial immunity, relate to the nature of the act itself, i.e.,
whether it is a function normally performed by a judge, and to the expectations
of the parties, i.e., whether they dealt with the judge in his judicial
capacity.
[16]
KeyCite Notes Link to KeyCite Notes
Key
Symbol78 Civil Rights
Key Symbol78III Federal Remedies in General
Key Symbol78k1353 Liability of Public
Officials
Key Symbol78k1360 k. Other Particular
Cases and Contexts. Most Cited Cases
Neither
chief justice of the Supreme Court nor administrative director of state courts
caused indigent parents to be subjected to deprivation of their right to
appointed counsel in child support enforcement hearings, and, as such, neither
was subject to liability in parents' § 1983 action against them, alleging that
they had right to appointed counsel under the Due Process Clause, and that they
had been incarcerated in violation of that right. 42 U.S.C.A. § 1983.
[17]
KeyCite Notes Link to KeyCite Notes
Key
Symbol78 Civil Rights
Key Symbol78III Federal Remedies in General
Key Symbol78k1372 Privilege or Immunity;
Good Faith and Probable Cause
Key Symbol78k1376 Government Agencies
and Officers
Key Symbol78k1376(8) k. Judges,
Courts, and Judicial Officers. Most Cited Cases
Even if
chief justice of the Supreme Court and administrative director of state courts
violated indigent parents' right to counsel in child support enforcement
proceeding by failing to promulgate a court rule or issue an administrative
directive addressing parents' right to counsel under Due Process Clause in
enforcement proceedings, their failure to do so was a legislative act such that
they were entitled to absolute legislative immunity from liability in parents'
§ 1983 action against them, in which parents alleged that they had right to
appointed counsel and that they had been incarcerated in violation of that
right. U.S.C.A. Const.Amend. 14; N.J.S.A. Const. Art. 6, § 2, par. 3; 42
U.S.C.A. § 1983.
[18]
KeyCite Notes Link to KeyCite Notes
Key
Symbol106 Courts
Key Symbol106II Establishment,
Organization, and Procedure
Key Symbol106II(F) Rules of Court and
Conduct of Business
Key Symbol106k85 Operation and Effect
of Rules
Key Symbol106k85(1) k. In General.
Most Cited Cases
Court
rules serve the purpose of guiding judges and lawyers in the basic protocols
and procedures that apply in the judicial system.
[19]
KeyCite Notes Link to KeyCite Notes
Key
Symbol106 Courts
Key Symbol106II Establishment,
Organization, and Procedure
Key Symbol106II(F) Rules of Court and
Conduct of Business
Key Symbol106k81 k. Making and
Promulgation of Rules. Most Cited Cases
The
promulgation of a court rule is a legislative act.
[20]
KeyCite Notes Link to KeyCite Notes
Key
Symbol106 Courts
Key Symbol106II Establishment,
Organization, and Procedure
Key Symbol106II(F) Rules of Court and
Conduct of Business
Key Symbol106k81 k. Making and
Promulgation of Rules. Most Cited Cases
Those
who draft and promulgate court rules, or omit to do so, are protected by
legislative immunity.
[21]
KeyCite Notes Link to KeyCite Notes
Key
Symbol30 Appeal and Error
Key Symbol30XVI Review
Key Symbol30XVI(A) Scope, Standards, and
Extent, in General
Key Symbol30k838 Questions Considered
Key Symbol30k843 Matters Not
Necessary to Decision on Review
Key Symbol30k843(2) k. Review of
Specific Questions in General. Most Cited Cases
Key
Symbol78 Civil Rights KeyCite Notes Link to KeyCite Notes
Key Symbol78I Rights Protected and
Discrimination Prohibited in General
Key Symbol78k1002 Constitutional and
Statutory Provisions
Key Symbol78k1006 k. Retrospective
Application. Most Cited Cases
Supreme
Court would not address on appeal issue of whether indigent parents were
entitled to counsel fees under New Jersey Civil Rights Act, in parents' § 1983
action, in which they prevailed, against state court judges and administrative
director of state courts, claiming that parents had right to appointed counsel
under the Due Process Clause; parents argued fee issue for first time on
appeal, Act went into effect on date Appellate Division rendered its opinion in
their case, and cause of action under Act did not exist when complaint was filed
or when argument was heard before Appellate Division. U.S.C.A. Const.Amend. 14;
42 U.S.C.A. § 1983; N.J.S.A. 10:6-1, 10:6-2.
**666
David Perry Davis , Princeton, argued the cause for appellants.
Patrick
DeAlmeida, Assistant Attorney General, argued the cause for respondents (Peter
C. Harvey, Attorney General of New Jersey, attorney; Michael J. Haas, Assistant
Attorney General, of counsel).
Melville
D. Miller, Jr., President, argued the cause for amicus curiae Legal Services of
New Jersey.
David
B. Rubin, Metuchen, argued the cause for amicus curiae New Jersey State Bar
Association (Stuart A. Hoberman, President, attorney, Woodbridge).
Justice
ALBIN delivered the opinion of the Court.
*133
The right to counsel is among our most precious of constitutional rights
because it is the necessary means of securing other fundamental rights. It has
long been recognized that the right to a fair trial would be an empty promise
without the right to counsel. In this appeal, we must determine whether
indigent parents charged with violating child support orders and subject to
coercive incarceration at ability-to-pay hearings have a right to appointed
counsel. We now hold that our Federal and State Constitutions guarantee that
right.
I
A
Plaintiffs
Anne Pasqua, Ray Tolbert, and Michael Anthony are parents who were arrested for
not complying with their court-ordered child support obligations. Following
their arrests, plaintiff Pasqua was brought before defendant Superior Court
Judge F. Lee Forrester, and plaintiffs Tolbert and Anthony were brought before
defendant Superior Court Judge Gerald J. Council. Those judges conducted
enforcement hearings pursuant to Rule 1:10-3 to determine plaintiffs' ability
to pay their support obligations. The essential purpose of those proceedings
was to determine whether plaintiffs were in willful disobedience of previously
entered court orders. At the hearings, plaintiffs were not represented by
counsel. They also were not advised of a right to counsel and, if indigent, of
a right to appointed counsel. Both Judge *134 Forrester and Judge Council set
an amount of support arrears to be paid by plaintiffs as a condition of their
release.
Plaintiff
Pasqua was ordered to pay $3,400 in child support arrears as a condition of her
release. She spent fifteen days in jail in addition to the three days she
served before her hearing until she was freed without making any payment. As of
January 2003, her child support obligations totaled $12,886.
Plaintiff
Tolbert was ordered to pay $10,000 of his arrears to secure his release. He
spent fifty-six days in jail in addition to the seventeen days he served
waiting for a hearing before he was freed, apparently without making a payment
toward his arrears. As of January 2003, Tolbert owed $134,700 in child support
obligations.
**667
Plaintiff Anthony served twenty-four days in jail before he appeared at an
enforcement hearing and was released after paying $125 toward his arrears of
$49,234. At the time of his release, he was warned that if he missed two future
support payments an arrest warrant would issue, and indeed, when Anthony
defaulted, one did. On that occasion, Anthony made another payment toward his
arrears and the warrant was vacated. As of January 2003, Anthony remained
unable to satisfy his $145 weekly support obligations.
In June
2000, plaintiffs filed a lawsuit in the United States District Court for the
District of New Jersey seeking relief under 42 U.S.C.A. § 1983 and naming as
defendants Judge Forrester; Judge Council; Deborah Poritz, Chief Justice of the
Supreme Court of New Jersey; and Richard Williams, former Administrative
Director of the Courts. In their complaint, plaintiffs sought a declaration
that the Due Process Clause of the Fourteenth Amendment guarantees the right to
appointed counsel to indigent parents facing the loss of their liberty at child
support enforcement proceedings. Plaintiffs also sought to enjoin defendants
from using incarceration as a means of coercing compliance with support orders
until indigent parents are provided appointed counsel. Plaintiffs asserted that
injunctive relief is required because*135 they still are indigent, cannot pay
their support obligations, and face the potential loss of their freedom at
future enforcement hearings without the assistance of counsel.
All
three plaintiffs alleged that they were incarcerated in violation of their
right to counsel due to policies and procedures promulgated by the Chief
Justice and the Administrative Director of the Courts. In addition to the
foregoing relief, plaintiffs also requested class certification for those
similarly situated parents facing coercive incarceration at child support
enforcement hearings.
The
federal district court dismissed the complaint, reasoning that federal courts
ordinarily should abstain from intervening in pending state cases, as explained
in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The
Third Circuit Court of Appeals affirmed, ruling that to grant “relief here
would address issues that plaintiffs can raise in their own cases currently
pending in the New Jersey courts.” FN1 Anthony v. Council, 316 F.3d 412, 421
(3d Cir.2003).
FN1.
The Third Circuit determined that plaintiffs retrospectively “had ample
opportunity to raise any constitutional claims at their state contempt
hearings” and “could have appealed any adverse decision to higher courts.”
Anthony v. Council, 316 F.3d 412, 420 (3d Cir.2003). The federal appeals court
also determined that plaintiffs prospectively could raise their constitutional
claims in pending state proceedings, noting that “[e]ach plaintiff here is
party to an open case that will not terminate until the child support order is
finally discharged.” Ibid. The court concluded that it was “confident that any
constitutional challenge to state court practice would receive proper
consideration by the New Jersey courts.” Id. at 423.
In
February 2003, plaintiffs filed the same complaint in the Superior Court, Law
Division, along with an order to show cause seeking preliminary restraints.
Judge Feinberg declined plaintiffs' request for emergent relief, but set the
matter down for oral argument. Defendants then filed a motion to dismiss the
complaint. Because there was no apparent dispute over the factual allegations
in the complaint, after hearing oral argument, Judge *136 Feinberg directly
addressed the legal issue raised. In doing so, she denied plaintiffs'
application for class certification.
**668
B.
In a
comprehensive opinion, Judge Feinberg determined “that the Fourteenth Amendment
due process clause requires the appointment of counsel for an indigent child
support obligor who faces incarceration.” Judge Feinberg rested her decision
primarily on Lassiter v. Department of Social Services, 452 U.S. 18, 26-27, 101
S.Ct. 2153, 2159, 68 L.Ed.2d 640, 649 (1981), which held that in a civil
proceeding there is a “presumption” in favor of the right to counsel when an
indigent litigant is facing a “depriv[ation] of his physical liberty.” Judge
Feinberg distinguished her ruling from Scalchi v. Scalchi, 347 N.J.Super. 493,
496, 790 A.2d 943 (App.Div.2002), which held that indigent parents in arrears
in their child support obligations have no Sixth Amendment right to counsel at
enforcement hearings. The Scalchi panel reasoned that the Sixth Amendment's
right to counsel clause did not apply in a “non-criminal setting” and that
“current” New Jersey law did not “require that counsel be assigned to an
indigent in a support enforcement proceeding.” Ibid.
Judge
Feinberg did not feel bound by Scalchi because that decision did not premise
its denial of the right to counsel on Fourteenth Amendment due process grounds
or the Lassiter decision. Judge Feinberg noted that the federal circuit courts
that had “addressed this question have determined that due process requires an
automatic appointment of counsel for an indigent facing incarceration in a
civil contempt proceeding” and that many state courts had reached “the
identical conclusion.” As a result of her finding, Judge Feinberg ordered that
parents facing potential incarceration at enforcement proceedings for
noncompliance with child support obligations must be advised of their right to
counsel. Judge Feinberg also ordered that those parents determined to be
indigent must be appointed counsel upon their request. In addition, she ruled
that indigent parents arrested for *137 violating child support orders must be
brought before a court and assigned counsel within seventy-two hours of their
arrests.
Judge
Feinberg observed that the Public Defender's Office is not “required by statute
to represent indigent child-support obligors who face incarceration,” and that
funding for such representation “rests solely and exclusively with the
Legislature.” In all other respects, Judge Feinberg referred the implementation
of her opinion to the Administrative Office of the Courts.
Judge
Feinberg also denied plaintiffs' request for attorney's fees and costs pursuant
to 42 U.S.C.A. § 1988, finding that defendants were acting within their
judicial capacities and therefore clothed with judicial immunity. She found no
causal link between plaintiffs' right-to-counsel claims and any acts or
omissions of defendants Chief Justice Poritz and Director Williams. She
concluded that the complaint did not allege that those defendants “had any
direct personal participation in the decision not to appoint counsel” and that
there was no evidence that they had “developed or implemented any
administrative policies that compromised a child support obligor's right to the
appointment of counsel.” Pending appeals filed by both defendants and
plaintiffs, the Administrative Office of the Courts (AOC) prepared a protocol
putting into effect Judge Feinberg's ruling. The protocol provided that (1)
before the commencement of a child support enforcement hearing, the Probation
Division must determine whether “coercive incarceration is a reasonable
likelihood” and, if so, whether a parent charged with nonsupport is indigent;
(2) every parent must **669 be advised of his right to retain counsel; and (3)
if the court finds a parent to be indigent, it “may proceed with the hearing,
making appropriate findings and ordering appropriate relief,” but until
publicly funded counsel is made available, an indigent parent may not be
incarcerated to coerce compliance with a child support order. The AOC also
promulgated guidelines requiring that parents arrested for nonsupport be taken
before a *138 judge as soon as possible, but, in any event, within seventy-two
hours of their arrest.
C.
In an
unpublished opinion, the Appellate Division reversed, finding Judge Feinberg's
decision to be in direct conflict with Scalchi and therefore “contrary to
binding precedent.” According to the panel, Scalchi broadly “rejected the
contention that the United States Constitution requires that counsel be
appointed for indigent child support obligors who face the threat of
incarceration pursuant to R. 1:10-3.” Although the Scalchi court engaged in a
Sixth Amendment analysis and Judge Feinberg in a Fourteenth Amendment due
process analysis, the panel concluded that the issues in the two cases were the
same and, therefore, the results should have been the same. The panel declined
to address the merits of the constitutional issue, stating that to do so “would
be turning a blind eye to the very nature of precedent and encouraging trial
judges to ignore appellate decisions with which they disagree.” The panel
“perceive[d] no imminent danger to individual rights resulting from [its]
decision not to address the merits,” accepting “the frank admission of
plaintiffs' counsel, at oral argument, that a judge can adequately protect an
obligor by conducting a thorough and searching ability-to-pay hearing.”
Supposing that to be true, the panel reasoned that the “solution to plaintiffs'
perceived problem can be found readily through judicial education and training,
and need not implicate the right to appointed counsel.” In reversing, the panel
did not intend to “suggest any impediment to the voluntary adoption of the
provisions of the protocol” adopted by the AOC. In light of its decision, the
panel deemed plaintiffs' appeal from the denial of attorney's fees to be moot.
In a
concurring opinion, Judge Carchman determined that the constitutional issue did
not have to be addressed because of “plaintiffs' counsel's concession at oral
argument that a searching inquiry by a trial judge at the ability-to-pay
hearing protects an *139 obligor's rights.” Judge Carchman also framed the
issue as “implicating judicial performance rather than the constitutional right
to counsel.” We granted plaintiffs' petition for certification, 183 N.J. 587,
874 A.2d 1106 (2005), and plaintiffs' motion for a stay of the Appellate
Division decision. We also granted motions filed by the New Jersey State Bar
Association and Legal Services of New Jersey to participate as amici curiae.
II.
Plaintiffs
essentially claim that coercive incarceration was a futile exercise because
they were too destitute to pay their support obligations. Without the
assistance of counsel, they argue, they could not prove their inability to pay
their arrears and thus were denied a fair hearing. Fearing that they will be
arrested again for nonsupport, they ask that this Court require appointment of
counsel for any indigent parent facing a jail term at a child support
enforcement hearing.
Defendants,
on the other hand, insist that analyzing a parent's resources, expenses,**670
and ability to earn income is “rudimentary in nature” and therefore maintain
that an indigent does not require the assistance of counsel at a child support
enforcement hearing. Defendants are confident that “Superior Court Judges can
make a searching and detailed inquiry” at those hearings and provide indigent
parents “with sufficient protection from unwarranted coercive incarceration.” Any
shortcomings, defendants assure us, can be remedied through “judicial education
and training.” We cannot accept the regime suggested by defendants as an
acceptable constitutional safeguard for an indigent litigant facing
incarceration in a judicial proceeding. The good intentions and fair-mindedness
of a Superior Court judge are not an adequate constitutional substitute for a
defendant's right to counsel when a jail term is at stake. Moreover, we are not
convinced that child support enforcement proceedings are so “rudimentary” that
indigent parents would not benefit from the assistance of counsel. *140 Our
high level of confidence in our judiciary cannot be the basis for depriving an
indigent litigant exposed to imprisonment of his federal and state constitutional
right to counsel.
A.
We
begin with a brief discussion of the nature of child support enforcement
proceedings. That process begins when a parent fails to abide by a
court-ordered child support obligation. R. 5:7-5(a). When the parent's arrears
are equal to or greater than fourteen days of child support, the Probation
Division is required to “file a verified statement setting forth the facts
establishing disobedience of the [court's] order.” Ibid. The noncompliant
parent may be subject to either a criminal contempt proceeding pursuant to Rule
1:10-2, or a proceeding in aid of litigants' rights pursuant to Rule 1:10-3, or
both.
[1]
Link to KeyCite Notes A contempt proceeding under Rule 1:10-2 is “essentially
criminal” in nature and is instituted for the purpose of punishing a defendant
who fails to comply with a court order. Essex County Welfare Bd. v. Perkins,
133 N.J.Super. 189, 195, 336 A.2d 16 (App.Div.) (citing In re Reeves, 60 N.J.
504, 291 A.2d 369 (1972); In re Carton, 48 N.J. 9, 222 A.2d 92 (1966); N.J.
Dep't of Health v. Roselle, 34 N.J. 331, 169 A.2d 153 (1961); Pierce v. Pierce,
122 N.J.Super. 359, 300 A.2d 568 (App.Div.1973)), certif. denied,68 N.J. 161,
343 A.2d 449 (1975). At such a proceeding, the “[d]efendant is entitled to
counsel and other safeguards appropriate to criminal proceedings.” Ibid.
[2]
Link to KeyCite Notes[3] Link to KeyCite Notes On the other hand, a proceeding
to enforce litigants' rights under Rule 1:10-3 “is essentially a civil
proceeding to coerce the defendant into compliance with the court's order for
the benefit of the private litigant” and “incarceration may be ordered only if
made contingent upon defendant's continuing failure to comply with the order.”
Ibid. In this case, we are concerned with enforcement proceedings under Rule
1:10-3, which are commonly instituted to bring defaulting parents in compliance
with child *141 support orders. Judicial Council, Use of Warrants and
Incarceration in the Enforcement of Child Support Orders 1 (Feb. 26, 2004).FN2
FN2. When the Probation Division moves to enforce a child support order
pursuant to Rule 1:10-3, the parent in arrears typically will receive notice to
appear before a Child Support Hearing Officer, who is charged with the initial
responsibility of enforcing the court's order. R. 5:25-3(b), (c). At the
proceeding, the parent is given the opportunity to present testimony and
evidence concerning his or her ability to pay the support required. R.
5:25-3(c)(2). The Hearing Officer evaluates the evidence presented, determines
whether the parent failed to comply with the child support order, and, if so,
the extent of noncompliance, and then makes a recommendation to the Presiding
Judge of the Family Part for enforcement of the order. R. 5:25-3(c)(8), (d)(1);
Judicial Council, Use of Warrants and Incarceration in the Enforcement of Child
Support Orders, 1-2 (Feb. 26, 2004). The Hearing Officer may recommend that the
court issue a warrant for a party who has failed to appear in response to a
notice. R. 5:25-3(c)(11). That officer also may recommend that a parent who has
failed to comply with a support order be incarcerated. R. 5:25-3(c)(10)(B). The
interested parties may object to the recommendations, which will result in an
immediate de novo hearing (not based on the record below) before a Superior
Court judge pursuant to Rule 5:25-3(d)(2). At that hearing, before ordering
coercive incarceration, the court must find that the parent was capable of
providing the required support, but willfully refused to do so. See Pierce v.
Pierce, 122 N.J.Super. 359, 361, 300 A.2d 568 (App.Div.1973).
**671
B.
[4]
Link to KeyCite Notes[5] Link to KeyCite Notes We now address whether the
Federal Constitution requires the appointment of counsel for an indigent parent
facing incarceration at a child support enforcement hearing. The Due Process
Clause of the Fourteenth Amendment to the United States Constitution provides
that no state shall “deprive any person of life, liberty, or property, without
due process of law.” U.S. Const. amend. XIV, § 1. It is well established that
an indigent defendant subject to imprisonment in a state criminal case has a
right to assigned counsel pursuant to the Sixth Amendment as applicable to the
states through the Fourteenth Amendment's Due Process Clause. See Argersinger
v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The right to *142
assigned counsel, however, does not depend solely on whether a case is
classified as criminal or civil. Lassiter v. Dep't of Soc. Servs., supra, 452
U.S. at 25, 101 S.Ct. at 2159, 68 L.Ed.2d at 648 (citing In re Gault, 387 U.S.
1, 41, 87 S.Ct. 1428, 1451, 18 L.Ed.2d 527, 554 (1967)). It is “the defendant's
interest in personal freedom, and not simply the special Sixth and Fourteenth
Amendments right to counsel in criminal cases, which triggers the right to
appointed counsel.” Id. at 25, 101 S.Ct. at 2158, 68 L.Ed.2d at 648. After all,
the adverse consequences of a particular civil proceeding can be as devastating
as those resulting from the conviction of a crime.
[6]
Link to KeyCite Notes In Lassiter, the United States Supreme Court considered
whether the Due Process Clause afforded an indigent litigant the right to
assistance of appointed counsel at termination of parental rights hearings. Id.
at 24, 101 S.Ct. at 2158, 68 L.Ed.2d at 647-48. While not finding an absolute
right to counsel at such hearings and leaving to the trial courts to determine
when counsel should be assigned on a case-specific basis, the Court addressed
the constitutional underpinnings of the right to counsel in civil actions. Id.
at 31-32, 101 S.Ct. at 2162, 68 L.Ed.2d at 652. The Court began by recognizing
that “due process” is nothing more than affording “fundamental fairness” to a
litigant in a particular situation. Id. at 24, 101 S.Ct. at 2158, 68 L.Ed.2d at
648. In assessing whether the Fourteenth Amendment guaranteed the right to
counsel at termination hearings, the Court turned to the analysis propounded in
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33
(1976). The Mathews “due process” analysis requires consideration of “the
private interests at stake, the government's interest, and the risk that the
procedures used will lead to erroneous decisions.” Lassiter, supra, 452 U.S. at
27, 101 S.Ct. at 2159, 68 L.Ed.2d at 649 (citing **672 Mathews, supra, 424 U.S.
at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33).
[7]
Link to KeyCite Notes With that construct in mind, the Court explained that
“[t]he pre-eminent generalization that emerges from [the] Court's precedents on
an indigent's right to appointed counsel is that such *143 a right has been
recognized to exist only where the litigant may lose his physical liberty if he
loses the litigation.” Id. at 25, 101 S.Ct. at 2158, 68 L.Ed.2d at 648. Thus,
there is a “presumption that an indigent litigant has a right to appointed
counsel only when, if he loses, he may be deprived of his physical liberty.”
Id. at 26-27, 101 S.Ct. at 2159, 68 L.Ed.2d at 649. The Mathews factors must be
weighed against the presumptive right to appointed counsel that attaches when
an indigent is subject to incarceration. Id. at 27, 101 S.Ct. at 2159, 68
L.Ed.2d at 649.
Although
the United States Supreme Court has yet to address the issue before us, several
United States Courts of Appeals have held that due process requires appointed
counsel for indigent litigants facing incarceration at support enforcement
proceedings. See Walker v. McLain, 768 F.2d 1181, 1185 (10th Cir.1985) (holding
that “due process does require, at a minimum, that an indigent defendant
threatened with incarceration for civil contempt for nonsupport, who can
establish indigency under the normal standards for appointment of counsel in a
criminal case, be appointed counsel to assist him in his defense”), cert.
denied,474 U.S. 1061, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986); Sevier v. Turner,
742 F.2d 262, 266-67 (6th Cir.1984) (holding that father incarcerated for
failure to pay child support was entitled to counsel during civil contempt
proceeding); Ridgway v. Baker, 720 F.2d 1409, 1415 (5th Cir.1983) (holding that
unrepresented father imprisoned for contempt for failure to pay child support
had right to appointed counsel because “defendant who is threatened with jail has
the right to a lawyer”).
Relying
on the Fourteenth Amendment Due Process Clause, many state courts likewise have
concluded that indigent litigants facing incarceration at support hearings have
a right to appointed counsel.FN3 **673 Those jurisdictions recognize the strong
government interest in enforcing support orders in furtherance of a state's
*144 parens patriae responsibility to protect the welfare of children-one of
the Mathews factors. Nonetheless, when weighing that factor against the other
Mathews factors-the private interest in personal freedom and the need to ensure
accurate proceedings-the presumption in favor of the right to appointed counsel
cannot be overcome.
FN3.
See, e.g., Ex parte Parcus, 615 So.2d 78, 84 (Ala.1993) (per curiam) (holding
“that in a contempt proceeding for nonsupport an indigent defendant may not be
incarcerated if the defendant has not been informed of the right to counsel or
has been denied counsel”); Black v. Div. of Child Support Enforcement, 686 A.2d
164, 168 (Del.1996) (holding that “due process requires counsel be appointed
for the indigent obligor” who “faces the possibility of incarceration”); McNabb
v. Osmundson, 315 N.W.2d 9, 10, 14 (Iowa 1982) (holding that “counsel must be
appointed” to “indigent facing a jail sentence in a contempt of court
proceeding” for nonpayment of child support); Rutherford v. Rutherford, 296 Md.
347, 464 A.2d 228, 237 (1983) (holding that “under the Due Process Clause of
the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights,
an indigent defendant in a civil contempt proceeding cannot be sentenced to
incarceration unless he has been afforded the right to appointed counsel”);
Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493, 504-05 (1990) (holding that
“Due Process Clause of the Fourteenth Amendment precludes incarceration of an
indigent defendant in a contempt proceeding for nonpayment of child support if
the indigent has been denied the assistance of counsel”); Cox v. Slama, 355
N.W.2d 401, 403 (Minn.1984) (holding that “counsel must be appointed for
indigent defendants facing civil contempt for failure to pay child support”);
Allen v. Sheriff of Lancaster County, 245 Neb. 149, 511 N.W.2d 125, 127 (1994)
(noting that “court has held that under the U.S. Constitution, an indigent
litigant has a right to appointed counsel when, as a result of the litigation,
he may be deprived of his physical liberty”); McBride v. McBride, 334 N.C. 124,
431 S.E.2d 14, 19 (1993) (holding that “principles of due process embodied in
the Fourteenth Amendment require that, absent the appointment of counsel,
indigent civil contemnors may not be incarcerated for failure to pay child
support arrearages”); State ex rel. Gullickson v. Gruchalla, 467 N.W.2d 451,
453 (N.D.1991) (holding “that indigent defendants in civil contempt proceedings
should be granted counsel at state expense when, if they lose, they will likely
be deprived of their physical liberty”); Tetro v. Tetro, 86 Wash.2d 252, 544
P.2d 17, 19 (1975) (holding that “[w]hatever due process requires when other
types of deprivation of liberty are potentially involved, when a judicial
proceeding may result in the defendant being physically incarcerated, counsel
is required regardless of whether the trial is otherwise ‘criminal’ in nature”);
Smoot v. Dingess, 160 W.Va. 558, 236 S.E.2d 468, 471 (1977) ( “Regardless of
whether a contempt proceeding is civil or criminal, a defendant has the right
to be represented by counsel, and if he is indigent counsel must be appointed
to represent him.”); State v. Pultz, 206 Wis.2d 112, 556 N.W.2d 708, 715 (1996)
(holding that “a defendant in a remedial contempt proceeding, if indigent, is
entitled to appointed counsel at public expense”).
*145
When an indigent litigant is forced to proceed at an ability-to-pay hearing
without counsel, there is a high risk of an erroneous determination and
wrongful incarceration. However seemingly simple support enforcement
proceedings may be for a judge or lawyer, gathering documentary evidence,
presenting testimony, marshalling legal arguments, and articulating a defense
are probably awesome and perhaps insuperable undertakings to the uninitiated
layperson. The task is that much more difficult when the indigent must defend
himself after he has already been deprived of his freedom. See, e.g., Walker,
supra, 768 F.2d at 1184 (“The issues in a proceeding for wilful nonsupport are
not so straightforward that counsel will not be of assistance in insuring the
accuracy and fairness of the proceeding. This is particularly true where the
petitioner is indigent and is attempting to prove his indigency as a defense to
wilfulness.”).
Defendants
argue that plaintiffs possessed the keys to the jailhouse door. That makes
sense only if one accepts the notion that plaintiffs had the wherewithal to pay
their child support arrears. It is the purpose of the child support hearing to
establish that very point. It is at that hearing that an indigent parent
untrained in the law, and perhaps anxious and inarticulate, needs the guiding
hand of counsel to help prove that his failure to make support payments was not
due to willful disobedience of a court order but rather to his impecunious
circumstances. See Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77
L.Ed. 158, 170 (1932) (“Even the intelligent and educated layman has small and
sometimes no skill in the science of law···· He lacks both the skill and
knowledge adequately to prepare his defense, even though he had a perfect
one.”).
We
reject the Appellate Division's contentions that “a judge can adequately
protect an [indigent parent] by conducting a thorough and searching
ability-to-pay hearing” or that the “solution to plaintiffs' perceived problem
can be found readily through judicial education and training, and need not
implicate the right to appointed counsel.” However well intentioned and
scrupulously fair *146 a judge may be, when a litigant is threatened with the
loss of his liberty, process is what matters. A person of impoverished means
caught within the tangle of our criminal or **674 civil justice system and
subject to a jail sentence is best protected by an adversarial hearing with the
assistance of a trained and experienced lawyer. Although requiring counsel may
complicate the procedures pertaining to enforcement of court orders, it
protects important constitutional values, including the fairness of our civil
justice system.
[8]
Link to KeyCite Notes[9] Link to KeyCite Notes Accordingly, we conclude that
the Fourteenth Amendment Due Process Clause mandates the appointment of counsel
to assist parents found to be indigent and facing incarceration at child
support enforcement hearings. At such hearings, courts must advise litigants in
jeopardy of losing their freedom of their right to counsel and, if indigent, of
their right to appointed counsel.FN4 FN4. Although not addressed by the
parties, § 1983 may not have been the proper vehicle for seeking injunctive
relief. Section 1983 provides “that in any action brought against a judicial
officer for an act or omission taken in such officer's judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated
or declaratory relief was unavailable.” 42 U.S.C.A. § 1983 (emphasis added).
The plain language of the statute might suggest that plaintiffs were not allowed
to seek injunctive relief. Defendants, however, did not object to plaintiffs'
suit on that ground. The issues raised in plaintiffs' complaint have been fully
briefed, argued, and are ripe for our determination. Moreover, we are deciding
this case not only on the basis of the Federal Constitution, but also on an
independent state ground. To avoid unnecessarily delaying the adjudication of
an issue of paramount constitutional importance, we address not only the merits
of plaintiffs' constitutional claim, but the remedies as well. See Kelley v.
Curtiss, 16 N.J. 265, 269-70, 108 A.2d 431 (1954).
C.
We
reach the same result under our State Constitution. Article I, Paragraph 1 of
the New Jersey Constitution provides: “All persons are by nature free and
independent, and have certain natural and unalienable rights, among which are
those of enjoying and defending life and liberty, of acquiring, possessing, and
protecting*147 property, and of pursuing and obtaining safety and happiness.”
N.J. Const. art. I, ¶ 1. Although the text of the New Jersey Constitution does
not contain a due process clause in language comparable to the Fifth and
Fourteenth Amendments of the Federal Constitution, we have found that the right
to due process of law is implicit in Article I, Paragraph 1. State v. Feaster,
184 N.J. 235, 250 n. 3, 877 A.2d 229 (2005); see also Greenberg v. Kimmelman,
99 N.J. 552, 568, 494 A.2d 294 (1985) ( “[A]rticle 1, paragraph 1, like the
fourteenth amendment, seeks to protect against injustice and against the
unequal treatment of those who should be treated alike. To this extent, article
1 safeguards values like those encompassed by the principles of due process and
equal protection.”).FN5 FN5. Generally, the right to appointed counsel for
indigent litigants has received more expansive protection under our state law
than federal law. Compare Lassiter, supra, 452 U.S at 31-32, 101 S.Ct. at 2162,
68 L.Ed.2d at 652 (declining to adopt holding that “Constitution requires ···
appointment of counsel [to indigents] in every parental termination
proceeding”), with Crist v. N.J. Div. of Youth & Family Servs., 135
N.J.Super. 573, 575, 343 A.2d 815 (App.Div.1975) (per curiam) (affirming
decision that courts “should assign counsel without cost to indigent parents
who are subjected to proceedings which may result in either temporary loss of
custody or permanent termination of their parental rights”); and compare Scott
v. Illinois, 440 U.S. 367, 369, 99 S.Ct. 1158, 1160, 59 L.Ed.2d 383, 386 (1979)
(holding that defendant charged with misdemeanor has no constitutional right to
counsel where no sentence of imprisonment is imposed), with State v. Hrycak,
184 N.J. 351, 362, 877 A.2d 1209 (2005) (providing for right to counsel in DWI
cases, regardless of whether sentence of imprisonment is imposed, because
defendant “faces a ‘consequence of magnitude’ ” (quoting Rodriguez v.
Rosenblatt, 58 N.J. 281, 295, 277 A.2d 216 (1971))).
**675
[10] Link to KeyCite Notes Under the due process guarantee of the New Jersey
Constitution, the right to counsel attaches even to proceedings in which a
litigant is not facing incarceration. For example, under our State
Constitution, convicted sex offenders must be notified of their right to retain
counsel and, if indigent, appointed counsel at Megan's Law tier classification
hearings. Doe v. Poritz, 142 N.J. 1, 30-31, 106, 662 A.2d 367 (1995). At those
hearings, the court determines the scope of community notification of such
information as a sex offender's name, and home and work address, by *148 assigning
the offender to one of three tiers. Id. at 23-25, 662 A.2d 367. Although sex
offenders are subject only to expanded stigmatization of their reputations in
their communities depending on their tier classification, they have a due
process “liberty interest” protected under Article I, Paragraph 1, triggering
the right to counsel. Id. at 30-31, 104-06, 662 A.2d 367.
In
addition, without referencing our State Constitution, we held in Rodriguez v.
Rosenblatt that “as a matter of simple justice, no indigent defendant should be
subjected to a conviction entailing imprisonment in fact or other consequence
of magnitude without first having had due and fair opportunity to have counsel
assigned without cost.” 58 N.J. 281, 295, 277 A.2d 216 (1971); see also R.
7:3-2(b) (“If the court is satisfied that the defendant is indigent and that
the defendant faces a consequence of magnitude ···, the court shall assign the
municipal public defender to represent the defendant.”). In Rodriguez, we
considered “the substantial loss of driving privileges” as one type of “serious
consequence” that would warrant assigning counsel to an indigent defendant. 58
N.J. at 295, 277 A.2d 216. We acknowledged “[t]he importance of counsel in an
accusatorial system,” underscoring that in a case with “any complexities[,] the
untrained defendant is in no position to defend himself,” and that in a case
without “complexities, his lack of legal representation may place him at a
disadvantage.” Rodriguez, supra, 58 N.J. at 295, 277 A.2d 216. Relying on the
principle of “simple justice” enunciated in Rodriguez, the Appellate Division
in Crist v. New Jersey Division of Youth & Family Services ruled that the
temporary loss or permanent termination of an indigent parent's rights to his
or her child in a judicial proceeding is a consequence of magnitude requiring
the assignment of counsel. 135 N.J.Super. 573, 575, 343 A.2d 815
(App.Div.1975); see also State v. Hermanns, 278 N.J.Super. 19, 29, 650 A.2d 360
(App.Div.1994) (holding that significant monetary sanctions “give[ ] rise to
the right to counsel under Rodriguez”).
We also
have held that due process guarantees the assignment of counsel to indigents in
involuntary civil commitment proceedings.*149 In re S.L., 94 N.J. 128, 136-37,
462 A.2d 1252 (1983); see also N.J.S.A. 30:4-27.11 (affording patient
involuntarily committed to psychiatric facility who is “unable to afford an
attorney, the right to be provided with an attorney paid for by the appropriate
government agency”). Cf. Perlmutter v. DeRowe, 58 N.J. 5, 17, 274 A.2d 283
(1971) (observing that civil arrest pursuant to writ of capias ad
respondendum“is substantially analogous to arrest under a criminal complaint
and a defendant should have all the same procedural rights and protections as
if he were arrested on a criminal charge for the same fraud upon which the
civil action and the [ capias ad respondendum] are based”).
**676
[11] Link to KeyCite Notes We can find no principled reason why an indigent
facing loss of motor vehicle privileges or a substantial fine in municipal
court, termination of parental rights in family court, or tier classification
in a Megan's Law proceeding would be entitled to counsel under state law but an
indigent facing jail for allegedly willfully refusing to pay a child support
judgment would not. Moreover, the indigent subject to incarceration for failure
to pay support can hardly be distinguished from the indigent conferred with the
right to counsel in an involuntary civil commitment hearing. We are persuaded
that the due process guarantee of the New Jersey Constitution compels the
assignment of counsel to indigent parents who are at risk of incarceration at
child support enforcement hearings.
III.
A.
We now
consider plaintiffs' contention that because they are prevailing parties under
42 U.S.C.A. § 1988(b), they are entitled to recover their reasonable attorney's
fees and costs. Section 1988(b) provides that the court, in its discretion, may
allow the prevailing party [in a § 1983 action], other than the United States,
a reasonable attorney's fee as part of the costs, except that in any action
brought against a judicial officer for an act or omission taken in such
officer's judicial capacity such officer shall not be held liable for any *150
costs, including attorney's fees, unless such action was clearly in excess of
such officer's jurisdiction.
[42
U.S.C.A. § 1988(b) (emphasis added).] As earlier determined, indigent parents
at child support enforcement hearings must be advised of their right to
appointed counsel. It is undisputed that Judges Council and Forrester omitted
to inform plaintiffs of that right. The question remains whether Judges Council
and Forrester were acting within their judicial capacities and therefore are
shielded by judicial immunity.
[12]
Link to KeyCite Notes[13] Link to KeyCite Notes Judicial immunity has been
fashioned “for the benefit of the public, whose interest it is that the judges
should be at liberty to exercise their functions with independence and without
fear of consequences.” Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218,
18 L.Ed.2d 288, 294 (1967) (internal quotation marks omitted). “If judges were
personally liable for erroneous decisions, the resulting avalanche of suits,
most of them frivolous but vexatious, would provide powerful incentives for
judges to avoid rendering decisions likely to provoke such suits.” Forrester v.
White, 484 U.S. 219, 226-27, 108 S.Ct. 538, 544, 98 L.Ed.2d 555, 565 (1988).
Accordingly, “[a] judge will not be deprived of immunity because the action he
took was in error, was done maliciously, or was in excess of his authority;
rather, he will be subject to liability only when he has acted in the ‘clear
absence of all jurisdiction.’ ” Stump v. Sparkman, 435 U.S. 349, 356-57, 98
S.Ct. 1099, 1105, 55 L.Ed.2d 331, 339 (1978) (quoting Bradley v. Fisher, 80
U.S. (13 Wall.) 335, 351, 20 L.Ed. 646, 651 (1872)).
[14]
Link to KeyCite Notes[15] Link to KeyCite Notes “[T]he factors determining
whether an act by a judge is a ‘judicial’ one relate to the nature of the act
itself, i.e., whether it is a function normally performed by a judge, and to
the expectations of the parties, i.e., whether they dealt with the judge in his
judicial capacity.” Id. at 362, 98 S.Ct. at 1107, 55 L.Ed.2d at 342. In presiding
over plaintiffs' enforcement proceedings, both defendants were acting within
their jurisdiction and performing functions normally performed by judges, **677
despite their failure to inform plaintiffs of their right to appointed counsel.
*151
Plaintiffs do not argue that Judges Council and Forrester were not acting in
their judicial capacities when they presided at plaintiffs' ability-to-pay
hearings. Rather, plaintiffs claim that it is “the strong policy of New Jersey
that prevailing § 1983 plaintiffs should be awarded counsel fees and costs.”
Contrary to plaintiffs' suggestion, New Jersey courts must interpret federal
statutes, such as § 1988(b), consistent with the intent of Congress, not with
plaintiffs' conception of state policy. Accordingly, Judges Council and
Forrester are clothed with judicial immunity.
[16]
Link to KeyCite Notes We also find that plaintiffs do not have a § 1983 cause
of action against Chief Justice Poritz and Director Williams. Section 1983
provides, in pertinent part: Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured···· [42 U.S.C.A. § 1983 (emphasis added).]
Neither
Chief Justice Poritz nor Director Williams “cause[d] [plaintiffs] to be subjected”
to the deprivation of their right to appointed counsel. Indeed, neither
committed or omitted any act-either in their judicial or administrative
capacities-that can properly be found to trigger liability under § 1983.
Before
the commencement of this lawsuit, no rule of court or administrative directive
intimated that Superior Court judges should not appoint counsel for indigent
parents at child support enforcement hearings. The complaint suggests that
Chief Justice Poritz should have adopted a rule or Director Williams should
have issued a directive that anticipated the constitutional issue before us and
provided counsel for indigent parents at such hearings. Court rules and
directives cannot anticipate every constitutional issue that may be raised outside
the context of a contested case. Constitutional issues are ordinarily raised,
litigated, and resolved in cases before Superior Court judges, and then are
subject to appellate review. The Chief Justice and Administrative Director of
the Courts cannot be held liable for not *152 forecasting those issues in
advance of a party raising them in a contested case. On that basis, Chief
Justice Poritz and Director Williams did not violate plaintiffs' constitutional
right to counsel under § 1983.
[17]
Link to KeyCite Notes[18] Link to KeyCite Notes[19] Link to KeyCite Notes[20]
Link to KeyCite Notes Even if we were to accept plaintiffs' claim that those
defendants had the obligation of foreseeing the constitutional issue and
adopting an anticipatory remedy by way of a court rule or directive, we would
find that the failure to do so was a legislative act shielded by legislative
immunity. Article VI, Section 2, Paragraph 3 of the New Jersey Constitution
invests the Supreme Court with the authority to make rules for the “practice
and procedure” of the courts. Court rules serve the purpose of guiding judges
and lawyers in the basic protocols and procedures that apply in our judicial
system. The promulgation of a court rule is a legislative act. See Supreme
Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 731,
734, 100 S.Ct. 1967, 1974, 1976, 64 L.Ed.2d 641, 653, 655 (1980). Those who
draft and promulgate such rules, or omit to do so, are protected by legislative
immunity. See id. at 731-34, 100 S.Ct. at 1974-76, 64 L.Ed.2d at 653-55
(granting legislative immunity in § 1983 action to Virginia Supreme Court
exercising “legislative power” in promulgating set of rules governing Virginia
State Bar); see also **678 Abick v. Michigan, 803 F.2d 874, 877-78 (6th
Cir.1986) (holding that justices of Michigan Supreme Court “act[ ] in their
legislative capacity” in promulgating court rules of practice and procedure).
Thus, even if Chief Justice Poritz and Director Williams violated plaintiffs'
right to counsel by failing to promulgate a court rule or issue an
administrative directive, they would be absolutely immune from any liability.
B.
[21]
Link to KeyCite Notes For the first time, plaintiffs argue before this Court
that they are entitled to counsel fees under the New Jersey Civil Rights Act,
N.J.S.A. 10:6-1 and -2. That Act went into effect on September 10, 2004, the
day that the Appellate Division rendered *153 its opinion in this case. A cause
of action under N.J.S.A. 10:6-2 did not exist when the complaint was filed or
when argument was heard before the Appellate Division. Under such
circumstances, we decline to address whether plaintiffs are entitled to counsel
fees under N.J.S.A. 10:6-2.
IV.
For the
reasons expressed, the complaint against defendants Chief Justice Poritz and
Director Williams must be dismissed because they did nothing to cause
plaintiffs to be subjected to a violation of their constitutional rights.
Judges Council and Forrester are entitled to judicial immunity from any claim
for counsel fees. We reverse the Appellate Division and enter judgment in favor
of plaintiffs to the following extent.
In the
future, at child support enforcement hearings, all parents charged with
violating a court order must be advised of their right to counsel. Those
parents facing potential incarceration must be advised of their right to
appointed counsel if they are indigent and, on request and verification of
indigency, must be afforded counsel. Otherwise incarceration may not be used as
an option to coerce compliance with support orders. Those parents arrested on
warrants for violating their support orders must be brought before a court as
soon as possible, but, in any event, within seventy-two hours of their arrest.
We
realize that unless there is a funding source for the provision of counsel to
indigent parents in Rule 1:10-3 proceedings, coercive incarceration will not be
an available sanction. We will not use our authority to impress lawyers into
service without promise of payment to remedy the constitutional defect in our
system. The benefits and burdens of our constitutional system must be borne by
society as a whole. In the past, the Legislature has acted responsibly to
provide funding to assure the availability of constitutionally mandated counsel
to the poor. See, e.g., N.J.S.A. 2B:24-7 (providing for representation of
indigent municipal defendants charged with crimes specified in N.J.S.A.
2B:12-18 *154 or likely to be “subject to imprisonment or other consequence of
magnitude”); N.J.S.A. 30:4C-15.4(a) (providing in termination of parental
rights cases that if indigent parent “requests counsel, the court shall appoint
the Office of the Public Defender to represent the parent”). We trust that the
Legislature will address the current issue as well.
We
refer to the Supreme Court Family Practice Committee consideration of
appropriate rules and procedures for the implementation of this decision.
The
judgment of the Appellate Division is reversed.
For
reversal-Justices LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO-6.
Opposed-None.
N.J.,2006.
Pasqua
v. Council
186
N.J. 127, 892 A.2d 663
END OF
DOCUMENT
