Table
of Contents
Cover Page.................................................. i
Table of Contents.......................................... ii
Table of Authorities...................................... iii
Index to Transcripts....................................... ii
Table of Contents to Appendix.............................. iv
Procedural History.......................................... 1
Statement of Facts.......................................... 4
Preliminary Statement...................................... 11
Legal Argument
I. THE TRIAL COURT ERRED IN FAILING TO CERTIFY
THE PLAINTIFF AND DEFENDANT CLASSES............................. 14
II. THE TRIAL COURT ERRED IN HOLDING THAT IT WAS
WITHOUT AUTHORITY TO ENTERTAIN A CIVIL RIGHTS SUIT NAMING THE JUDGES OF THE
SUPERIOR COURT AS DEFENDANTS............................... 22
III. THE TRIAL COURT ERRED IN FAILING TO AWARD
COUNSEL FEES AS PLAINTIFFS "PREVAILED" AS THAT TERM HAS BEEN DEFINED
BY THE NEW JERSEY SUPREME COURT AND NO "SPECIAL CIRCUMSTANCES"
EXISTED TO REBUT THE STRONG PRESUMPTION THAT A PREVAILING 42 USC § 1983
PLAINTIFF IS ENTITLED TO COUNSEL FEES AND COSTS.................................................. 24
IV. IF ANY ISSUE IS REMANDED, THIS MATTER SHOULD
BE HEARD BY A DIFFERENT JUDGE.............................. 29
Conclusion................................................. 30
Table of Authorities
New Jersey Case Law
|
African Council v. Hadge
255 N.J.Super. 4 (App.Div.1992)....................... 24, 28
|
|
Bolyard v. Berman
274 N.J.Super. 565 (App.Div. 1994)........................ 24
|
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Cesare v. Cesare
154 N.J. 394 (1998)....................................... 14
|
|
Delgozzo v. Kenny
266 N.J.Super. 169 (App.Div.1993)............. 16, 18, 19, 20
|
|
Frank's Chicken House
v. Mayor and Council
208 N.J.Super. 542 (App.Div.1986)..................... 24, 28
|
|
Gallo v. Gallo
66 N.J.Super. 1 (App.Div.1961)............................ 14
|
|
Gregg v. Township Comm.
232 N.J.Super. 34 (App.Div. 1989)..................... 24, 28
|
|
Gross v. Johnson &
Johnson‑Merck Consumer Pharms. Co.
303 N.J.Super. 336 (Law Div.1997)..................... 16, 18
|
|
In re Cadillac V8‑6‑4
Class Action
93 N.J. 412 (1983).................................... 18,
19
|
|
Manalapan Realty v.
Township Comm.
140 N.J. 366 (1995)....................................... 14
|
|
Pascale v. Pascale
113 N.J. 20 (1988)........................................ 14
|
|
Riley v. New Rapids
Carpet Ctr.
61 N.J. 218 (1972)........................................ 20
|
|
Rova Farms Resort, Inc.
v. Investors Ins. Co.,
65 N.J. 474 (1974)........................................ 14
|
|
Saldana v. City of
Camden
252 N.J.Super. 188 (App.Div.1991)......................... 16
|
|
Singer v. State
495 N.J. 487 (1984)............................... 25, 26,
27
|
|
Stockton v. Rhulen
302 N.J.Super. 236 (App. Div.
1997)................... 24, 28
|
Federal Case Law
|
Blackie v. Barrack
524 F.2d 891, 901 n. 17 (9th
Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d
75 (1976)................ 18, 20
|
|
Doe v. Charleston Area
Medical Center Inc.
529 F.2d 638 (W.Va. 1975)................................. 16
|
|
Hensley v. Eckerhart
461 U.S. 424, 103 S.Ct.
1933, 76 L.Ed.2d 40 (1983)........ 24
|
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Johnson v. Zurz
596 F.Supp. 39 (N.D.Ohio 1984)............................ 17
|
|
Jones v. Diamond
519 F.2d 1090 (5th Cir.1975).............................. 16
|
|
Lake v. Speziale
580 F.Supp. 1318 (D.Conn.1984)........................ 17, 23
|
|
Mastin v. Fellerhoff
526 F.Supp. 969 (S.D.Ohio 1981)....................... 17, 23
|
|
McKinstry v. Genesee
County Circuit Judges
669 F.Supp. 801 (E.D.Mich.1987)....................... 17, 23
|
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Nadeau v. Helgemoe
581 F.2d. 275 (1st Cir. 1978)............................. 25
|
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Ridgeway v. Baker
720 F.2d 1409 (5th Cir. 1983)......................... 17, 23
|
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Sevier v. Turner
742 F.2d 262 (6th Cir.1984)........................... 17, 23
|
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W.P. v. Poritz
931 F.Supp. 1187 (D.N.J. 1996)........................ 15, 16
|
|
Walker v. McLain
768 F.2d 1181 (10th Cir.App.
1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 805, 88 L.Ed.2d
781 (1986)............ 17, 23
|
|
Weiss v. York Hospital
745 F.2d 786, 808 (3d Cir.), certiorari
denied 105 S.Ct. 1777, 470 U.S. 1060, 84 L.Ed.2d 836 (1984).................. 15, 16
|
|
Young v. Pierce
544 F.Supp. 1010 (E.D.Tex. 1982).................. 16, 17, 23
|
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Young v. Whitworth
522 F.Supp. 759 (S.D.Ohio 1981)....................... 17, 23
|
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Younger v. Harris
401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669
(1971).......... 23
|
New Jersey Court Rules
R. 1:10-3.......................................................... 4
R. 5:7-5........................................................... 4
R. 4:32-1(a)...................................... 14,
15, 17, 19, 21
Federal Statutes
42 U.S.C. § 1983......................................... passim
42 U.S.C. § 1988......................................... passim
Other Sources
|
Class Actions in New Jersey State Courts
Phillip
Steven Fuoco, Robert F. Williams, 24 Rutgers
L.J. 737, 752 (1993).......................................................... 18
|
Index
to Transcripts
Transcript
1 [1T ] ‑ Jan 11, 2002 Also
attached as Pa 236-264
Transcript 2 [2T ] ‑ March 8, 2002 Also attached as Pa 265-273
Table of Contents to Appendix
Civil Case Information Statement................................ Pa 1
Complaint filed November 27, 2001 ........................... Pa 2-13
Order to Show Cause ("osc") filed November
28, 2001......... Pa 14-15
Summons ....................................................... Pa
16
Memorandum of law in support of osc......................... Pa 17-33
Orders on Emergent applications (Exhibit A to Pa
17-33)..... Pa 34-51
Affidavit in support of osc (Jeffrey Leonard)............... Pa 52-53
Affidavit in support of osc (Devin Square).................. Pa 54-55
Affidavit in support of osc (Craig Williams)................ Pa 56-57
Affidavit in support of osc (James Thompson)................ Pa 58-59
Affidavit in support of osc (Cheyanne Johnson).............. Pa 60-61
Affidavit in support of osc (David Chavis).................. Pa 62-63
Affidavit in support of osc (Todd Logan).................... Pa 64-65
Affidavit in support of osc (Jeffrey Jones)................. Pa 66-67
Affidavit in support of osc (Gary J. Davis)................. Pa 68-69
Affidavit in support of osc (Cleo Merritt).................. Pa 70-71
Defendants' Motion to Dismiss in Lieu of Answer
(1/2/02).... Pa 72-90
Affidavit Mercer Probation Dept in support of above......... Pa 91-96
Affidavit Monmouth Probation Dept in support of above....... Pa 97-99
Affidavit Ocean Probation Dept in support of above........ Pa 100-104
Plaintiffs' Reply (1/9/02)................................ Pa 105-124
Transcript of Ability to Pay Hearing (James Thompson)..... Pa 125-129
Transcript of Ability to Pay Hearing (Cleo Merritt)....... Pa 130-133
Transcript of Ability to Pay Hearing (Devin Square)....... Pa 134-138
Transcript of Ability to Pay Hearing (Jeffrey Leonard).... Pa 139-142
Transcript of Ability to Pay Hearing (Gary J. Davis)...... Pa 143-146
Transcript of Ability to Pay Hearing (Logan and Davis).... Pa 147-160
Affidavit from Mary Gayle (Mercer County Workhouse)........... Pa 161
Commitment Slip (Gary Davis / MCCC)........................... Pa 162
Transcript of Ability to Pay Hearing (Ronald Cohen)....... Pa 163-169
January 28, 2002 Order.................................... Pa
170-171
Memorandum Opinion in support of 1/28/02 Order............ Pa 172-198
Memorandum from AOC.............................................. 199
Notice of Motion for counsel fees and costs............... Pa 200-211
Certification of Services................................. Pa 212-220
Defendants' opposition.................................... Pa
221-228
Plaintiffs' reply......................................... Pa
229-233
March 25, 2002 Order...................................... Pa
234-235
Transcript of proceedings below (January 11, 2002 -
1T)... Pa 236-264
Transcript of proceedings below (March 8, 2002 - 2T)...... Pa 265-273
Procedural
History
On November
28, 2001, plaintiffs filed a complaint in the Chancery Division, General Equity
Part, pursuant to 42 U.S.C. §1983 (The Civil Rights Act) (Pa 2-13) along with
an order to show cause (Pa 14-15) and several affidavits from the named
plaintiffs (Pa 52-71). The gravamen of
the complaint and order to show cause was a claim that indigent child support
obligors were being detained for long periods of time without an ability to pay
hearing being conducted, and that the due process rights of the plaintiffs were
being violated by the trial court habitually failing to make a meaningful
inquiry into the ability of incarcerated obligors to pay the release amounts
set. Procedurally, the complaint sought class
action status and counsel fees and costs pursuant to 43 U.S.C. § 1988.
The complaint
was sua sponte transferred from the chancery division to the Law
Division and the order to show cause was executed by Hon. Linda R. Feinberg,
AJSC, and set down for a hearing on January 11, 2002.
On January 2,
2002, defendants filed a motion to dismiss the complaint along with opposition
to plaintiffs' order to show cause (Pa 72-90).
On January 9, 2002, plaintiffs filed a reply (Pa 105-124).
The Court
heard oral argument on the return date (1T, Pa 236-264) and placed its decision
on the record, subject to counsel submitting any additional documentation by
January 16.
An Order was
entered January 28, 2002, granting the majority of the substantive relief
sought by plaintiffs. Specifically, the
Order compelled defendants to hold initial ability to pay hearings within 72
hours of an obligor's arrest and to review said incarcerations no more than
once every two weeks thereafter. While
expressing grave concerns as to the sufficiency of the findings being made at
said ability to pay hearings, the trial court held that it was without
authority to certify the proposed defendant class and to address whether the
actions of fellow trial court judges were violative of the plaintiffs' civil
rights (1T 21-22 to 21-23, Pa 246).
Procedurally, the court held that class action status was not
appropriate (Pa 172-198).
On February
11, 2002, plaintiffs filed a motion for counsel fees and costs pursuant to 42
U.S.C. § 1988 (Pa 200-211). Defendants
opposed the motion (Pa 221-228).
Plaintiffs replied to the opposition on February 28, 2002 (Pa
229-233). The Court held oral argument
on March 8, 2002 (2T, Pa 265-273) and issued an order denying plaintiffs'
request for counsel fees and costs on March 25, 2002.
The appeal
was filed along with a motion to extend time to file same on May 31, 2002. A subsequent motion to extend the time to
file this brief was granted on November 13, 2002.
Statement
of Facts
Each year in
New Jersey, there are over 50,000 child support enforcement hearings scheduled
by county probation departments. (Pa 179).
Pursuant to R. 5:7-5, the court is authorized to issue an arrest
warrant for obligors who fail to appear for said hearings. If at an enforcement hearing a court
determines that an obligor has the current ability to make a lump-sum payment
toward support arrears, the court is authorized pursuant to R. 1:10-3
to order the coercive incarceration of the obligor until payment is made.
The
incarceration itself is not challenged.
It is undisputed that coercive incarceration may in some instances be an
appropriate, fully constitutional method of forcing a recalcitrant but able
obligor to comply with a valid child support Order. What is challenged is the violation of the plaintiffs' due process
right to have a hearing reviewing their incarceration within a reasonable time
period, and defendants' continuous abrogation of the law (and, therefore,
plaintiff's civil rights) insofar as it requires the trial court to set a
release amount actually tied to the ability to pay of the defaulting obligor.
Prior to the
January 28, 2002 Order in this matter, many defaulted child support obligors
were being arrested and held without review for periods that the trial court
found violated due process (2T 13-23,
Pa 272). Others were given hearings
that were "ability to pay hearings" in name only and where no inquiry
whatsoever was made into their ability to pay the release amount set by the
court (Pa 125-160).
Beginning in
September of 2001, the named plaintiffs in this matter were arrested as a
result of their failure to pay court-ordered child support or for their failure
to appear at an enforcement hearing (Pa ).
On November 23, 2001 when affidavits were executed by the plaintiffs,
the named plaintiffs had been incarcerated for an average of 48 days each. Half of them had never been provided an
ability to pay hearing (Pa 62-63, 66-67, 60-61).
Those who had
been granted ability to pay hearings were having their incarcerations reviewed
on a sporadic basis at best. Exactly
how regularly the reviews occurred was a contested question below. Although a representative from the Mercer
County Probation Department testified that reviews occurred every two weeks (1T
38-17 to 39-10. Pa 255), the affidavits filed by plaintiffs indicated far
longer periods (Pa 52-71). At the
hearing on plaintiffs' application for an order to show cause, the trial court
refused to take testimony from the plaintiffs who were present in Court,
permitting only witnesses brought by the defense to speak.
Subsequent to
oral argument on January 11, on the court's invitation to supply further
documentation, plaintiffs obtained and supplied transcripts from enforcement
hearings involving the named plaintiffs.
The testimony of the probation officers at those enforcement hearings
demonstrated unequivocally that it was at least a month between reviews. Nonetheless, the court found that plaintiffs
were only held "for as long as two weeks" without review (1T 41-4 to
41-6, Pa 256).
Of more
importance, at the "ability to pay" hearings, there was no inquiry
into the ability of the defaulted obligors to pay the release amounts set by
the court, thus removing the constitutional justification for a
"coercive" incarceration (Pa
52-71, 125-160).
The issue of whether the plaintiffs were
even incarcerated as a result of their failure to pay support was also
contested below. The Mercer County
Probation Department filed a certification stating
that "No Obligor is incarcerated for non-payment of child support without
first having an ability to pay hearing" (Pa 95, ¶8 and Pa 96 ¶9) and
claiming that all the named plaintiffs were being held as a result of their
failure to appear, not their inability to pay the release amount set (Pa 94-96,
¶7 and 8).
When the
court invited additional submissions following the hearing, plaintiffs obtained
and submitted the transcripts of the Ability to Pay hearings conducted in
Mercer. Each and every transcript
reveals plaintiffs who were held for lengthy periods of time (well in excess of
two weeks) and each hearing results in the establishment of a release amount
without a scintilla of evidence that the obligor had the ability to pay same
(Pa 125-160).
The Monmouth
County probation department filed a similar certification stating that Ronald
Cohen was arrested after failing to appear for a child support enforcement
hearing scheduled by probation, and not as a result of his failure to pay child
support (Pa 98). This was simply
false. Plaintiffs submitted the
transcript from the hearing wherein Mr. Cohen was incarcerated, which
demonstrated that he was in Court that day to argue a motion he filed to
reduce his support (Pa 164 and Pa 38)
and that he was incarcerated for nonpayment, in direct contradiction to the
statement that "Mr. Cohen was not incarcerated for non-payment of child
support" (Pa 99 at ¶7). Mr. Cohen never failed to appear for a
hearing. In spite of this indisputable
evidence that the Monmouth certification was incorrect, the trial court relied
on it as well.
The Ocean
County certification (Pa 100-104) was edited by the affiant before being faxed
back and submitted to the court. It
does not even claim that Ocean County was only holding obligors who had failed
to appear (Pa 103). Instead, the
Certification actually admits the allegations of
plaintiffs' Complaint that members of the plaintiff class are incarcerated
without the existence of evidence that the obligors had the ability to pay,
stating:
... The
obligor would may be given the opportunity at this hearing to
present evidence and testimony concerning his or her ability pay .... If a legitimate inability to pay is
demonstrated, the Obligor would may not be
incarcerated.
Following the
brief hearing on January 11, the trial Court entered an order requiring that,
prospectively, all arrested child support obligors would be initially reviewed
within 72 hours of their arrest and no more than every two weeks thereafter. The court "didn't dispute that"
there is a problem with the adequacy of the inquiry being made at ability to
pay hearings (1T 21-14, PA 246), but held that it was without authority to
certify the proposed defendant class and to address the issue (1T 21-16 to 21-24,
Pa 246).
Having
prevailed on the central issues of the complaint, plaintiffs filed an
application for counsel fees and costs.
Same was denied by the court on March 25, 2002.
Plaintiffs
appeal those portions of the trial court's January 28, 2002 and March 25, 2002
orders that (1) denied class action status (2) held that a trial court cannot
entertain a civil rights suit where the defendant class consists of fellow
trial court judges, and, (3) denied plaintiffs' application for counsel fees
and costs.
Preliminary Statement
This Court is
asked to reverse the trial court's determination that class action status was
not appropriate, to certify the classes, and to make the relief ordered by the
trial Court as to the timing of hearings applicable to the entire defendant
class. The record before this Court
also establishes that the plaintiff class has not received meaningful ability
to pay hearings. This Court should
order that indigent child support obligors receive a hearing that is an ability
to pay hearing in more than name only.
For this
Court to so order requires no factual inquiry that would take this court
outside its role as a court of review.
As noted
above, many of the factual findings of the trial court (as to the length of
time obligors were held without a hearing and the length of time between
hearings) were not based in substantial, credible evidence in the record. They were, in fact, contradicted by the
record. However, even without
disturbing the factual findings made below, it is urged that the trial Court
was correct that a "bright-line rule" (2T 14-17, Pa 272) should exist
whereby defaulted child support obligors are reviewed within 72 hours of their
initial arrest and every two weeks thereafter to ensure that any incarcerations
remain "coercive." As
requested, the Court should have reinforced that, both at an initial
enforcement hearing where incarceration is considered, and on a subsequent
review, the burden is on the party seeking to incarcerate a judgment debtor to
"demonstrate to the court that the judgment debtor has assets that have
been secreted or otherwise placed beyond the reach of execution."
As the
classes should have been certified, the relief granted by the trial court on
January 28, 2002 should be made applicable to the entire defendant class.
Second, the
record demonstrates that the level of inquiry into the ability of plaintiffs to
pay the release amounts being set was constitutionally inadequate. Again, the trial court did not find
otherwise, expressing "I've reviewed those transcripts, and I have some
concerns about the level of inquiry by the judges. I don't dispute that" (1T 21-14 to 21-17, Pa 246).
It is the
trial court's subsequent legal conclusion that it could not entertain a class
action where the defendant class consists of the named Judges
"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" that is challenged herein.
As discussed below, this defendant class has been certified in a great
number of published cases brought under 42 U.S.C. § 1983 and, contrary to the
opinion expressed below, it does not require a trial court "to act as an
appellate court." (1T 21-14 to
21-17, Pa 246).
Finally, this
Court is asked to reverse the trial court's determination that an award of
counsel fees was inappropriate. Even
without addressing the issue of the certification of the classes, plaintiffs'
suit resulted in the "bright line rule" of 72 hour review and review
of incarcerations every two weeks thereafter, and the trial Court found that
this rule was required "as a matter of procedural due process." (2T 14-23 to 14-24, Pa 272). There is a strong public policy in our State
in favor of the vindication of civil rights especially when, as here, the
plaintiff class by definition is indigent and otherwise unable to pursue a
remedy to a civil rights violation.
J LEGAL
ARGUMENT
I. THE TRIAL COURT ERRED IN FAILING TO CERTIFY
THE PLAINTIFF AND DEFENDANT CLASSES.
The
general rule is that findings of a trial Court are binding on appeal when
supported by adequate, substantial and credible evidence. Pascale v. Pascale, 113 N.J.
20, 33, (1988) (citing Gallo v. Gallo, 66 N.J.Super. 1, 5,
(App.Div.1961)), Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J.
474, 484 (1974). It is not the role of
the Appellate Division to re‑weigh the factual determinations of the
trial court, which alone has the opportunity to view the demeanor of and judge
the credibility of witnesses. Cesare
v. Cesare, 154 N.J. 394, 416 (1998).
However when,
as here, the issue on appeal concerns an issue of law and not a question of
fact, review by the Appellate Division is de novo. Manalapan Realty v. Township Comm., 140 N.J. 366,
378 (1995).
The
certification of class actions is controlled by R. 4:32‑1(a),
which requires that a class should be certified when the requirements of
numerosity, typicality, and adequacy of the named representatives are met. The record demonstrates that the putative
class satisfies each and every requirement of the Rule.
As
to numerosity
Initially, as
to the class, it was not disputed that, as to both the putative plaintiff and
defendant class the "(1) the persons affected are so numerous that joinder
of all parties is impracticable."
The trial Court noted on the record that, as to a plaintiff class of
defaulted child support obligors, "there are thousands and thousands of
cases every year" (1T 18-8 to 18-14, Pa 245), and in its written decision
that "there are over 50,000 child support enforcement hearings each
year." (Pa 180-181).
A. As to numerosity of the proposed defendant
class
In finding that
plaintiffs had not alleged sufficient numerosity to warrant class action
status, the court held that "production of transcripts from approximately
ten child support enforcement hearings falls short of satisfying the numerosity
requirement set forth in R. 4:32-1(a)."
The trial
court erred in focusing on how many transcripts had been produced or on the
number of named plaintiffs. When
considering whether a putative plaintiff class has established numerosity, a
court is to focus on the allegations of the complaint, not how many named
plaintiffs had firmly established their entitlement to relief at a preliminary
hearing on an order to show cause. The
court's finding that there were over 50,000 hearings annually, in conjunction
with a complaint naming 12 plaintiffs "individually and on behalf of all
persons similarly situated" satisfies the numerosity requirement of the
Rule. See, e.g. W.P. v.
Poritz, 931 F.Supp. 1187 (D.N.J. 1996), Weiss v. York Hospital, 745 F.2d 786,
808 (3d Cir.), certiorari denied 105 S.Ct. 1777, 470 U.S.
1060, 84 L.Ed.2d 836 (1984).
Especially in
a civil rights context, even "speculative and conclusory
representations" as to the size of the class suffice as to the requirement
of many. Doe v. Charleston Area Medical Center, Inc.,,
529 F.2d 638 (W.Va. 1975), Young v. Pierce, 544 F.Supp. 1010
(E.D.Tex. 1982), Jones v. Diamond, 519 F.2d 1090, 1100 (5th
Cir.1975).
Plaintiffs
exceeded the standard for establishing numerosity.
B. As to numerosity of the proposed defendant
class
As to
defendant class, the trial court noted that there were, as of January 14, 2002,
"126 judges assigned to the Family Part." (Pa 181).
While it
might be possible to serve each and every sitting Family Part judge
individually, to establish the numerosity element, plaintiffs are not required
to show that it would be "impossible" to join all members, but only
that such joinder would be "difficult", "inconvenient" or
"impracticable." See, e.g., W.P. v. Poritz, 931 F.Supp. 1187 (D.N.J.
1996), Weiss v. York Hospital, 745 F.2d 786,
808 (3d Cir.), certiorari denied 105 S.Ct. 1777, 470 U.S.
1060, 84 L.Ed.2d 836 (1984, Saldana v. City of Camden, 252 N.J.Super.
188, 193 (App.Div.1991) (potential class of 81 members sufficient to establish
numerosity), Gross v. Johnson v. Johnson, 303 N.J.Super. 336
(Law.Div. 1997), Delgozzo v. Kenny, 266 N.J.Super. 169, 181, (App.Div.1993).
Moreover,
where, as here, the defendants would in any case be represented by the same
entity (the office of the Attorney General), a class action is the appropriate
vehicle for raising a civil rights challenge to an ongoing practice. Finally, civil rights challenges to judicial
practices have routinely been certified as a class in a wide variety of
contexts. See, e.g., Lake v.
Speziale, 580 F.Supp. 1318 (D.Conn. 1984), Mastin v. Fellerhoff,
526 F.Supp. 969 (S.D.Ohio 1981), Walker v. McLain, 768 F.2d
1181 (10th Cir.App. 1985), cert.denied, 474 U.S. 1061, 106 S.Ct.
805, 88 L.Ed.2d 781 (1986); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984), Ridgeway v. Baker, 720 F.2d 1409 (5th
Cir. 1983), McKinstry v. Genesee County Circuit Judges, 669
F.Supp. 801 (E.D.Mich.1987), Johnson v. Zurz, 596 F.Supp. 39
(N.D.Ohio 1984), Young v. Whitworth, 522 F.Supp. 759
(S.D.Ohio 1981).
In its
written decision, the trial court again focused on the number of named
defendants, holding that "naming only five judges in three counties"
was insufficient to satisfy the numerosity requirement, again ignoring that the
complaint named the judges "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." (Pa 2-13).
The trial
Court erred in holding that the putative defendant class did not satisfy the
numerosity requirement of R. 4:32-1(a).
As
to commonality
In order to
be certified as a class, the complaint must allege that "there are common
questions of law and fact." R. 4:32-1(a)(2). The trial court did not address this factor
as to the putative defendant class and found that it did not exist as to the
putative plaintiff class.
In finding
that the plaintiff class had not satisfied the commonality requirement of the
Rule, the court stated "But there -- the commonality is really -- every
case is fact sensitive, is different" (T18-8 to 18-12), and in its written
decision:
With respect
to commonality, the plaintiffs acknowledge "the precise underlying facts
surrounding each case may differ."
As result, there is no commonality amongst the proposed plaintiff class.
When
determining whether a putative class has established sufficient commonality,
the focus should not be on whether there are differences between individual
cases. There will always be factual
differences between different cases; the question is whether the class as a
whole raises "at least one common question of law or fact." Gross
v. Johnson & Johnson‑Merck Consumer Pharms. Co., 303 N.J.Super.
336, 342 (Law Div.1997). See also, In
re Cadillac V8‑6‑4 Class Action, 93 N.J. 412 (1983),
Phillip Steven Fuoco, Robert F. Williams, Class Actions in New Jersey State
Courts, 24 Rutgers L.J. 737, 752 (1993).
The complaint
alleged that each and every plaintiff had either been incarcerated without an
ability to pay hearing at all or without having been afforded a
constitutionally adequate hearing. This
allegation must be accepted as true when a court is asked to certify a class,
and establishes the required commonality for class certification. Delgozzo v. Kenny, 266 N.J.Super.
169, 181 (App.Div.1993)(quoting Blackie v. Barrack, 524 F.2d 891,
901 n. 17 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct.
57, 50 L.Ed.2d 75 (1976)).
As
to typicality
A plaintiffs
claim satisfies the typicality requirement for purposes of class certification
if it arises from the same event or course of conduct which has given rise to
claims of other class members. In re
Cadillac V8‑6‑4 Class Action, 93 N.J. 412, 425 (183.
The complaint
alleges a course of conduct - that plaintiffs were either not granted timely
ability to pay hearings, that they were not granted ability to pay hearings at
all, or that, when a hearing was held, the release amount set was not tied to
the ability of plaintiffs to pay same, thus depriving the resulting
incarcerations of their coercive nature and removing its legal justification
(Pa 2-13).
