Procedural
History
This matter
was originally filed in the United States District Court for the District of
New Jersey in June of 2000 under Docket No. 00CV‑2418. The federal complaint was amended in August
of 2000. Defendants filed a motion to
dismiss in September of 2000.
Plaintiffs filed a cross motion seeking a preliminary injunction and
class certification in September of 2000.
Defendants filed a reply raising abstention issues pursuant to Younger
v. Harris in October of 2000.
Plaintiffs filed a sur-reply addressing these new issues in October of
2000. Oral argument was held before
Hon. Garret E. Brown, USDJ, on November 16, 2000.
A written
decision granting defendants' abstention application was issued in March of
2001.
An
application for reconsideration was filed in March of 2001.
A written decision was issued in June of
2001 denying plaintiffs' application for reconsideration.
A Notice of
Appeal to the United States Court of Appeals for the Third Circuit was filed in
June of 2001 under Docket No. 01-2735.
Plaintiffs supporting brief was submitted in October of 2001. Defendants' brief in opposition was
submitted in October of 2001.
Plaintiffs' reply brief was submitted in November of 2001. Oral argument was held on April 24,
2002.
On January
17, 2003, the Third Circuit affirmed the abstention ruling, reasoning that, as
a matter of first impression, the child support enforcement system is "a
comprehensive and fluid system designed to address the ever‑present and
ever‑changing realities of child support orders [and ] must be
viewed as a whole, rather than as individual, discrete hearings" and that
the State Court's decision in Scalchi v. Scalchi, 347 N.J.Super.
493 (App.Div. 2002), did not sufficiently demonstrate that the State was resistant
to adjudicating the constitutional issue.
To the
limited extent that the Third Circuit addressed the merits, the Court held that
it was "confident that any constitutional challenge to state court
practice would receive proper consideration by the New Jersey courts,"
and, in its summation, "We do not intend to minimize the importance of the
rights asserted. But we believe this
constitutional challenge should be raised in the New Jersey courts." Anthony et al v. Council et al, 316
F.3d 412 (3d. Cir. 2003).
The
complaint (Da 1-18), along with an order to show cause (Da 19-21) seeking
emergent relief in the form of preliminary restraints, was re-filed in state
court in February 2003.
On February
24, the trial court denied emergent relief, established a briefing schedule and
set the matter down for oral argument on March 28. On March 21, defendants filed a motion to dismiss the complaint.
Oral
argument was held March 28, 2003. On
May 1, the trial Court issued a 52 page opinion (Da 22-74) on April 24 granting
the substantive relief sought by plaintiffs but denying the application for
class action status.
An
application regarding the implementation of the Court's decision and seeking
counsel fees and costs was filed on June 27.
An
interlocutory order giving the State 60 days to implement a system for the
appointment of counsel was filed July 11, 2003 (Pa 90-91) (and amended
September 5, 2003). The same Order
denied plaintiffs' application for counsel fees based on the provisions of the
Federal Courts Improvement Act of 1996 (Pa 88-89).
On August
15, 2003, defendants moved for a stay of the Court's order pending appeal. While that motion was pending, defendants
filed a Notice of Appeal on August 25 (Da 108-112).
An amended
order was entered September 5, 2003 (Pa 88-89)
On September
19, 2003, a final order was entered that, inter alia, denied defendants'
application for a stay and plaintiff's application for counsel fees and costs
(Da 119-121).
Later that
day, defendants applied for emergent relief from the Appellate Division seeking
a stay of the lower court's order (Da 134).
Plaintiffs filed a cross-application challenging the
"implementation" portion of the trial Court's decision, which, after
finding a constitutional mandate, made suggestions for implementation rather
than ordering specific and appropriate relief.
Plaintiffs'
notice of cross appeal of the Court's September 19, 2003 Order was filed
September 30, 2003. (Pa 80-84)
Statement
of Facts
Every year
in New Jersey, over 50,000 child support enforcement hearings are
conducted. Many of those who are
compelled to attend said hearings are indigent. As a result of these proceedings pursuant to R. 1:10-3 and
5:7-5 (hereinafter "Ability to Pay" hearings), hundreds of indigent
litigants are incarcerated. Attorneys
are not appointed to represent indigent at these hearings, and none of the
attendees (regardless of their financial status) are informed of their right to
an attorney.
The three
named plaintiffs who brought this suit are indigent child support debtors,
incarcerated as a result of their inability to comply with financial child
support orders and threatened with future incarceration on the same basis.
As explained
above, the federal court spoke highly of the merits of the suit, but declined
to address them, deferring to the state court.
On February 14, 2003, plaintiffs re-filed the complaint under 42 U.S.C.
§ 1983 seeking declaratory and injunctive relief; namely, the appointment of
counsel for all indigent litigants facing incarceration at Ability to Pay
hearings, and counsel fees and costs.
On April 24,
the Court issued an Opinion agreeing that the Federal Constitution demands the
appointment of counsel for any person who may lose their liberty in a civil
contempt hearing. The Court also found
support for this proposition in the State Constitution. The Administrative Office of the Courts was
ordered to implement a process for the appointment of counsel for all indigent
litigants facing a potential loss of liberty at child support enforcement
hearings.
Preliminary
Statement: as to cross appeal (counsel fees)
The trial
Court denied plaintiffs' application for counsel fees and costs as the Federal
Courts Improvement Act of 1996, Pub.L. No. 104‑317, explicitly
precludes such an award against "a judicial officer." (Da 77 - opinion
issued July 11).
The same Act
prohibits the issuance of injunctive relief against "a judicial
officer" unless a declaratory judgment has been violated. No declarative judgment was violated in this
matter.
When
granting plaintiffs' application for an injunction requiring that counsel be
appointed, the trial Court did not invoke the Act. Instead, the relief granted is directed toward the Administrative
Office of the Courts, a named defendant who is not "a judicial
officer."
When
plaintiffs subsequently applied for counsel fees, the trial court ignored the
fact that it had granted relief against the AOC as a non-judicial defendant and
shifted its focus to the existence of judicial defendants in plaintiffs' complaint. It thereafter denied the application for
counsel fees, citing the FCIA.
Even in this
Court, defendants do not argue that the FCIA was applicable and should have
precluded the Court from entering the requested injunction. The AOC is not "a judicial
officer" protected by the FCIA from an injunction.
It cannot be
both ways. If the FCIA did not preclude
the entry of injunctive relief, it could not preclude an award of counsel fees.
If there was
a close call as to whether the Act applied in light of the fact that both
judicial and non-judicial defendants were involved, the strong public
policy (expressed by both the Federal and State courts) in favor of
compensating counsel who demonstrate a violation of Constitutional rights
should have persuaded the Court to award counsel fees and costs. New Jersey has a long and proud tradition of
thus ensuring that litigants (and especially indigent litigants) who would not
otherwise be able to assert and protect constitutional rights will have access
to our courts.
The trial
court's decision on the issue of counsel fees was inconsistent and contrary to
this well established public policy. It
should be reversed by this Court.
Statement
as to Amicus brief
Plaintiffs
agree that the pro bono pool should not be utilized to provide counsel
for indigent civil litigants facing potential incarceration at an enforcement
hearing.
Although
counsel for plaintiffs believe that attorneys have a unique duty to "give
back" to the justice system and disagree with the argument that it is
unfair to compel them to provide a reasonable amount of legal services to the
poor, plaintiffs are concerned that randomly assigned counsel would not have
the expertise necessary to properly conduct an Ability to Pay hearing.
It should
also be noted that, as a result of this litigation, the Administrative Office
of the Courts has promulgated new guidelines that prohibit the incarceration of
indigent litigants since no publicly funded pool of attorneys is currently
available (Pa 121-139). Indigent
litigants, by definition, should not be coercively incarcerated as the finding
of indigence doubles as a finding that they do not have the ability to post
money to secure their release.
If the trial
court's decision is affirmed and the currently operating system remains in
place, the only time a conflict with the Constitution could develop would be in
the instance that a litigant insists she is indigent in spite of a contrary
finding by the Court and thus requires counsel to demonstrate this fact.
Competent
and experienced counsel should be made available under these circumstances.
LEGAL ARGUMENT
I. THE TRIAL COURT'S RULING REQUIRING THE APPOINTMENT OF COUNSEL
FOR INDIGENT CIVIL LITIGANTS FACING INCARCERATION SHOULD BE AFFIRMED.
A.
The appointment of counsel for an indigent litigant is a constitutional
mandate when incarceration is a potential outcome of the hearing.
In Lassiter
v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d
640 (1981), the United State Supreme Court drew a bright line rule that, while
due process might require the appointment of counsel in other civil matters, no
indigent litigant should be compelled to attend a hearing where their liberty
is at stake unless they are represented by appointed counsel.
Defendants
urge this Court to accept the precise reasoning that persuaded the Supreme
Courts of North Carolina in Jolly v. Wright, 265 S.E.2d 135 (N.C.
1980) and Michigan in Sword v. Sword, 249 N.W.2d 88 (Mich. 1976)
and to find that the appointment of counsel is not a constitutional mandate in
New Jersey. Both these cases have been
overturned by subsequent rulings wherein the right to counsel was recognized as
a federal constitutional mandate. See
McBride v. McBride, 334 N.C. 124, 431 S.E.2d 14 (1993) overruling
Jolly v. Wright, 265 S.E.2d 135 (N.C. 1980) and Mead v.
Batchlor, 435 Mich. 480, 460 N.W.2d 493 (1990) overruling Sword
v. Sword, 249 N.W.2d 88 (Mich. 1976).
Every
Federal District Court to apply the Lassiter holding to the issue of
incarcerating a child support obligor has held that obligors must be notified
of their right to counsel and, if the obligor is indigent, counsel must be
appointed to represent them. See,
e.g. Walker v. McLain, 768 F.2d 1181 (10th Cir.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); Lake
v. Speziale, 580 F.Supp. 1318 (D.Conn.1984); Young v. Whitworth, 522 F.Supp.
759 (S.D.Ohio 1981); Mastin v.
Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981).
State Courts
to address the issue have also nearly uniformly granted relief. See, e.g. County of Santa Clara v. Superior Court, 2 Cal.App.4th
1686, 5 Cal.Rptr.2d 7 (1992); Mead
v. Batchlor, 435 Mich. 480, 460 N.W.2d 493 (1990); Sanders v. Shephard, 185 Ill.App.3d
719, 133 Ill.Dec. 712, 541 N.E.2d 1150 (1989); In re Marriage of Stariha, 509 N.E.2d
1117 (Ind.App. 1987); Hunt v.
Moreland, 697 S.W.2d 326 (Mo.App. 1985); Cox v. Slama, 355 N.W.2d 401 (Minn.1984); Rutherford v. Rutherford, 296 Md.
347, 464 A.2d 228 (1983); McNabb
v. Osmundson, 315 N.W.2d 9 (Iowa 1982); Padilla v. Padilla, 645 P.2d 1327
(Colo.App.1982); Tetro v. Tetro,
86 Wash.2d 252, 544 P.2d 17 (1975).
Similarly,
law review and scholarly articles uniformly conclude that counsel must be
appointed for an indigent confronted with a potential loss of liberty at a
child support enforcement hearing. See,
e.g., The Right to Appointed Counsel
in Quasi Criminal Cases: Towards an Effective Assistance of Counsel
Standard, Harvard Civil Rights & Civil Liberties Law Review, 19
Harv. C.R.C.L.L. Rev. 397 ("Courts have used the due process clauses to
provide indigent litigants the right to appointed counsel in defense of their
liberty interests in such 'quasi criminal' matters as . . . civil contempt
. . . " Id. at 399-400. "The characterization of a proceeding
as 'civil' should not frustrate the constitutional mandate of appointed counsel
where an indigent litigant is threatened with confinement. The [United States Supreme ] Court took
this step in Lassiter v. Department of Social Services, erecting a
presumption of a right to appointed counsel "where the litigant may lose
his physical liberty if he loses the litigation." Id. at
409-410. See also, The Right to Appointment of Counsel for the
Indigent Civil Contemnor Facing Incarceration for Failure to Pay Child Support
─ McBride v. McBride, 16 Campbell L. Rev. 127; The
Right to Appointed Counsel for Indigent Civil Litigants, 30 Wm. &
Mary L. Rev. 627, 639 (1989).
In its only
discussion of the merits of this matter, the Third Circuit specifically found
that plaintiffs herein had established standing by alleging they would again be
compelled to attend a hearing without being provided counsel:
... plaintiffs allege they have been injured because of past
constitutional deprivations and are likely to be injured in future child
support contempt hearings. Fears of
future injury are based on the likelihood that plaintiffs, who allegedly remain
indigent, will be summoned again before the New Jersey courts for failing to
meet their support obligations.
Plaintiffs contend they are unlikely to enjoy their asserted rights in
any future hearings. See Scalchi
v. Scalchi, 347 N.J.Super. 493, 790 A.2d 943, 945
(N.J.Super.Ct.App.Div.2002) ("The current law in New Jersey [does not]
require that counsel be assigned to an indigent in a support enforcement
proceeding."); Prob. Servs. Div., Admin. Office of the Courts, Your Guide to Court Preparation; Answers to Common Questions About Child
Support Enforcement Hearings (n.d.) ("A lawyer will not normally be court‑appointed
for this type of hearing....") Anthony v. Council, 316 F.3d at 417.
Next,
defendants allege that injunctive relief was inappropriate "as plaintiffs
do not allege a threat of future contempt proceedings" (Db at 10). This is simply false; the complaint
expressly alleges a threat of future contempt proceedings (Da 9-12, Complaint
at ¶¶ 24,33,40).
Finally,
defendants aver that counsel is not necessary as the proceedings involved are
simple inquiries into the ability of the incarcerated obligor to pay and
therefore not prone to error. No
support is offered for the proposition that a "simple" proceedings
that could result in a loss of liberty to the litigant is an exception to the
mandate that counsel be appointed in such cases. Moreover, this statement is belied by the record below and the
series of emergent reversals that initially led to the filing of this action
(Pa 140-156).
B.
The lower court's opinion distinguishing Scalchi v. Scalchi from
the Fourteenth Amendment challenge at issue herein was correct and should be
affirmed.
Scalchi
v. Scalchi, 347 N.J.Super. 493 (App.Div. 2002) was a Sixth
Amendment case and did not reference the Due Process clause of the Fourteenth
Amendment. The lower court was correct
in distinguishing it from the Due Process issue before this Court.
Defendants
do not address the solid reasoning of the trial Court on this issue, instead
simply repeating the arguments rejected below.
Scalchi is silent as to the Fourteenth Amendment and does not so
much as contain the phrase "due process." As the trial court explained in detail, it's "e.g."
citation to cases that reference the Fourteenth Amendment cannot be read as
implying that the Scalchi Court addressed those issues in detail.
Finally, Scalchi
was decided while this matter was awaiting oral argument before the Third
Circuit. That Court noted the
decision's holding that "[t]he current law in New Jersey [does not]
require that counsel be assigned to an indigent in a support enforcement
proceeding", yet held that "but this statement does not demonstrate
that the New Jersey courts are resistant to adjudicating indigent parents'
constitutional rights. We are confident
that any constitutional challenge to state court practice would receive proper
consideration by the New Jersey courts."
Anthony v. Council, 316 F.3d 412, 418 (3d.Cir. 2003). As pointed out above, the Third Circuit's
finding of standing to allege a constitutional injury was based on the Scalchi
decision. If Scalchi is read as having addressed the Fourteenth
Amendment issue, it is in direct conflict with Lassiter as well as every
Federal Court to address the issue. The
only justification for the Third Circuit's determination that Scalchi
"does not demonstrate that the New Jersey courts are resistant to
adjudicating indigent parents' constitutional rights" is if Scalchi
does not address the Fourteenth Amendment.
C. Civil litigants at child support contempt
proceedings are entitled to the same protections as defendants subjected to a
writ of capias ad satisfaciendum
The trial Court correctly found additional
support for its ruling in the cases discussing the protections due a litigant
in capias ad satisfaciendum cases.
In Marshall
v. Matthei, 327 N.J.Super. 512 (2000), the Appellate Division was
asked to review a writ issued as a result of the defendant's refusal to comply
with a judgment entered against him by his former attorney, in spite of
evidence that he had the ability to do so.
In incarcerating the defendant, the trial Court found, based on
defendant's admissions, he had the ability to pay at least $20,000 toward his
arrears. Id. at 519.
The
Appellate Division noted that it could "discern no reason why the same standards
as have developed to govern civil contempt and proceedings in relief of
litigants' rights should not apply, as appropriate, to capias ad
satisfaciendum commitments." Id.
at 526. Defendants offer the
unsupported and illogical statement that this statement does not include the
most fundamental right, the right to counsel when a litigant's liberty is at
stake.
The fact
that Mr. Matthei was pro se cannot reasonably read as a ruling on
whether he was entitled to counsel.
More relevantly, Mr. Matthei was incarcerated based on his own
admissions that he had access to $20,000 but refused to pay the judgment at
issue. There is no relevance between
the facts of this case and the appointment of counsel for indigent civil
litigants.
The scope of
the due process rights of a civil contemnor facing incarceration upon a writ of
capias ad satisfaciendum have been clearly defined by the New Jersey
Supreme Court. In discussing these
rights, the Marshall Court cites to Perlmutter v. DeRowe, 58 N.J.
5, 13‑14 (1971) (discussing the "function and place of ca.
sa.") and Fidelis Factors Corp. v. Du Lane Hatchery, Ltd., 47 N.J.Super.
132, 139‑40 (App.Div. 1957). Perlmutter
holds that "civil arrest under a Ca.re. 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 Ca. re. are based."
Id. at 17, citing In re Harris, 69 Cal.2d 486, 72 Cal.Rptr.
340, 446 P.2d 148 (1968); Cf. Desmond v. Hachey, 315 F.Supp.
328 (D.Me.1970).
Especially
when viewed in conjunction with the holding of the United States Supreme Court
in Lassiter v. Department of Social Services, 452 U.S.
18, 31‑34, 101 S.Ct. 2153, 2161‑2163, 68 L.Ed.2d 640
(1981) and of the New Jersey Appellate Division In the Matter of the Civil
Commitment of D.L., 351 N.J. Super. 77 (App.Div.), cert
granted 174 N.J. 185 (2002) (citing Lassiter), this
Court should affirm the trial Court's holding that the Appellate Division's
application of the safeguards of R. 1:10-3 to capias ad
satisfaciendum proceedings also mandates the inverse ─ defendants in
child support contempt proceedings are entitled to the same procedural due
process rights as a defendant in a capias ad satisfaciendum
proceedings. This includes the right to
competent, effective counsel at the hearing where the contemnor's liberty is at
stake.
The trial
court's ruling on this issue should be affirmed.
III. THE TRIAL
COURT'S RULING THAT THE FEDERAL COURTS IMPROVEMENT ACT OF 1996 PRECLUDES AN
AWARD OF COUNSEL FEES SHOULD BE REVERSED.
Plaintiffs,
indigent child support litigants who were facing unconstitutional
incarceration, sued for injunctive and declarative relief pursuant to the Civil
Rights Act of 1871, 42 U.S.C. § 1983.
As they could not afford to retain counsel to assert these rights,
plaintiffs sought counsel fees and costs pursuant to 42 U.S.C. § 1988.
In Pulliam
v. Allen, 466 U.S. 522, 541‑42, 104 S.Ct. 1970, 80 L.Ed.2d
565 (1984), the United States Supreme Court interpreted the Civil Rights Act to
permit suits for injunctive relief against individual judges. The decision also permitted an award of
counsel fees and costs when the Constitution was vindicated through such a
suit.
In 1996 the
Federal Courts Improvement Act (FCIA) was enacted by Congress as a specific
legislative abrogation of the Pulliam decision, and "to restore
judicial immunity."
FCIA amends
42 U.S.C. § 1983 to state "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."
In this
matter, no declaratory decree was violated, yet the Court ordered injunctive
relief, requiring the Administrative Office of the Courts (AOC) to implement a
plan for the appointment of counsel. In
so ruling, the Court implicitly acknowledged that the AOC was not acting
"in a judicial capacity" but in an administrative one, and the
issuance of an injunction under 42 U.S.C. § 1983 was thus not precluded by
FCIA.
Plaintiffs
then filed an application for counsel fees and costs.
Section
722(b) of 42 U.S.C. 1988, as amended by FCIA, states "(b)
Attorney's fees. In any action or
proceeding to enforce a provision of section ... 1983 ... the court, in its
discretion, may allow the prevailing party, 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
costs, including attorney's fees, unless such action was clearly in excess of
such officer's jurisdiction."
In denying
plaintiffs' application, the trial Court pointed to this statute and held that
an award of counsel fees was prohibited by the Act as other defendants named in
the complaint (aside from the AOC) were acting in a judicial capacity.
The trial
Court cited to its unpublished opinion in Leonard v. Blackburn, MER‑L‑3761‑01,
A-5007-01T3 (Pa 94-120) in support of its conclusion. In Leonard, the trial court was presented with a challenge
to the adequacy of the inquiry being made by individual judges at purported
"Ability to Pay" hearings and to the timing of those hearings. The named defendants were only the
Superior Court Judges who had entered rulings in ability to pay hearings that
had been reversed on emergent applications to the Appellate Division (Pa
140-156).
In Leonard,
the gravamen of the complaint was a challenge to individual judicial decisions
and the FCIA was properly applied to deny plaintiffs' application for counsel
fees.
By contrast,
the challenge brought in the instant case was against the systemic
unconstitutional conduct of compelling indigent litigants to attend hearings
wherein their liberty was at stake without first appointing counsel. In contrast to the facts in Leonard,
individual judges do not determine whether, on a system wide basis, counsel
will be appointed. This is within the
purview of the AOC (and the Supreme Court in its rule making capacity). The trial court's opinion in this matter
recognizes this distinction by directing the injunctive relief granted toward
the AOC, but ignores it by denying the application for counsel fees.
FCIA was
never intended to prohibit such systemic
challenges. The text of the
statute speaks to a prohibition against injunctive relief being ordered against
"a judicial officer." A
successful challenge to systemic conduct where the relief granted was an
injunction against the AOC does not impinge upon judicial discretion and does
not have a chilling effect on the ability of "a judicial officer" to
rule in any individual case without being concerned that they will end up as
defendants in a §1983 action.
Neither the
text of the FCIA nor the underlying policy rationale supports the trial court's
extension of "a judicial officer" to include the non-judicial
functions performed by the Administrative Office of the Courts and the Supreme
Court when promulgating guidelines for the appointment of counsel at hearings
when a litigant's liberty is at stake. See,
e.g., Stafford, An Overview of Judicial Immunity, STATE CT. J.,
Summer 1977, at 3 (discussing the doctrine of judicial immunity); Weisberger, The
Twilight of Judicial Independence ‑‑ Pulliam v. Allen, 19
SUFFOLK U.L. REV. 537 (1985) (examining early American case law on judicial
independence); Note, Pulliam v. Allen: Delineating the Immunity of Judges
from Prospective Relief, 34 CATH. U.L. REV. 829 (1985) (reviewing both the
origin and purpose of the judicial immunity doctrine); Case Comment, Judges ‑‑
Malpractice? Judicial Immunity, Injunctive Relief, and Attorney's Fees under
the Civil Rights Statutes, 14 MEM. ST. U.L. REV. 588 (1984) (discussing the
history of judicial immunity and the Supreme Court's decision in Pulliam v. Allen).
