BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S
COMPLAINT WITH PREJUDICE
Allison Accurso Assistant Attorney General Of Counsel
Diane M. Lamb Deputy Attorney General On the Brief
PETER C. HARVEY
ATTORNEY GENERAL OF NEW JERSEY
Attorney for Defendants
R.J. Hughes Justice Complex
P.O. Box 112
Trenton, New Jersey
08625
TABLE OF CONTENTS
PAGE PRELIMINARY STATEMENT ..................... 1
STATEMENT OF FACTS
...................... 3
LEGAL ARGUMENT: POINT I
IN A CIVIL CONTEMPT PROCEEDING, PLAINTIFFS ARE NOT ENTITLED
TO THE APPOINTMENT OF COUNSEL .......... 6
POINT II
PLAINTIFFS ARE NOT ENTITLED TO CLASS CERTIFICATION FOR
EITHER THE PLAINTIFF OR DEFENDANT CLASS PURSUANT TO RULE 4:32
.......................... 13
CONCLUSION
......................... 18
FEDERAL CASES
Lassiter v. Department of Social Services, 452 LLJL_ 18, 101
S.Ct. 2153, 68 L.Ed.2d 640 (1981) .........
STATE CASES Andrews v. Walton, 428 So.2d 663,665 (Fl. 1983)
...... 8, 9
Cashen v. Spann, 66 N.J. 541, 545-47 cert, denied,
423 U.S. 829, 96 S. Ct. 48, 46 L.Ed.2d 46 (1975) ....... 3
Department of Health v. Roselle. 34 N.J. 331, 339 (1961) ...
8
K.D. v. Bozarth, 313 N.J. Super.. 561, 568 (App.Div.1998)
... 3
Marshall v. Matthei, 327 N.J. Super. 512 (App.Div. 2000) ...
8
Matter_of__the Civil Commitment of D.L., 351 N.J. Super.
77 (App.Div. 2002)
..................... 11
Rodriquez v. Rosenblatt, 58 N.J. 281, 295 (1971) ......
10
Saltzman v. Saltzman, 290 N.J. Super. 117 (App.Div.
1996) ........................... 7, 9
Scalchi vs. Scalchi, 347 N.J. Super. 493 (App.Div.
2002) ...................... 1, 6, 7, 9, 10
Hawkins v. Harris, 141 N.J. 207, 214 (1995) .......... 3
STATE RULES
R. 1:10-2 ........................... 7
R. 1:10-3 ........................... 7
R. 4:32-1 .......................... 13
R_^ 4:32-l(a)
........................ 13
R. 4:32-l(lo)
........................ 13
R. 5:7-5
........................... 7
PRELIMINARY STATEMENT
In this case, three individuals who have, for different
reasons, failed to meet their child support obligations have petitioned this
court for truly extraordinary relief. Although each plaintiff has been provided
with all the process due them in the civil contempt proceedings instituted when
they refused to make the court-ordered payments to their families, they now ask
the court to order that they, and all other individuals who may fail to pay
child support payments in the future, be provided with an attorney to represent
them in any civil contempt proceeding that needs to be instituted to remedy
their failure to pay.
However, the identical arguments plaintiffs raise in this
action have already been thoroughly considered and firmly rejected by the
Appellate Division. , Indeed, in Scalchi v. Scalchi, 347 N.J. Super. 493, 496
(App. Div. 2001), the court explicitly held that "[t]he current law in New
Jersey . . . does not require that counsel be assigned to an indigent in a
support enforcement preceding." This court is, of course, bound by the
ruling of the Appellate Division and, accordingly, plaintiffs claims here must
likewise be dismissed.
As this brief will demonstrate, plaintiffs have no cause of
action. The Scalchi decision makes clear that plaintiffs in a child support
payment proceeding do not have a constitutional right to counsel. In addition,
plaintiffs' request that both a Plaintiff and a Defendant class be certified
must fail because they have
p.5
failed to meet any of the requirements for established by
the Rules of Court for such certification. Therefore, and for the reasons which
follow, plaintiffs' Complaint should be dismissed.
STATEMENT OF FACTS
On February 14, 2003, Plaintiffs Anne Pasqua, Ray Tolbert,
and Michael Anthony (collectively referred to as "Plaintiffs") filed
a Complaint and Order to Show Cause in the Superior Court of New Jersey. In
their Complaint, Plaintiffs named the Honorable Gerald J. Council, J.S.C.,
Honorable F. Lee Forrester, J.S.C., Honorable Deborah Poritz, Chief Justice of
the New Jersey Supreme Court, and Honorable Richard J. Williams, Director of
the Administrative Office of the Courts of the State of New Jersey, both in
their official capacities and on behalf of all Superior Court Judges of the
State of New Jersey* ". See Attorney Certification and Exhibit A
{Complaint}.
Plaintiffs are all under child support orders issued by the
Superior Court of New Jersey, Chancery Division, Family Part. Plaintiffs were
arrested on civil contempt charges for failing to meet their child support
obligations. See Exhibit A. Plaintiffs
"It should be noted that plaintiffs have named these
judges incorrectly as defendants. The New Jersey State judges do not establish
policy for the judicial system of New Jersey. Judicial policy issues are
overseen and managed by the Administrative Office of the Courts ("AOC").
""It does not appear from the Complaint that
plaintiffs seek monetary damages against these defendants. To the extent that
any monetary damages are sought, these defendants would be entitled to judicial
immunity for actions taken in their official capacities as judges of the State
of New Jersey, Hawkins v. Harris, 141
N.J. 207, 214 (1995); Cashen v. Spann, 66 N.J. 541, 545-47, cert, denied. 423
U.S. 829, 96 S. Ct. 48, 46 L.Ed. 2 46 (1975); K.D. v. Bozarth, 313 N.J. Super.
561, 568 (App. Div. 1998). allege
violations of their due process rights, contending that the judges failed to
inform them of their right to counsel and, if indigent, to appoint such counsel
at state expense. Plaintiffs assert that they were indigent at the time of
their hearings,, continue to be indigent, and remain in arrears on their
support obligations. See Exhibit A. As such, plaintiffs contend that there is a
great likelihood that they will be obligated to appear in similar contempt
hearings and may be deprived of their rights again. See Exhibit A.
Plaintiffs also seek certification of a plaintiff class
consisting of indigent New Jersey residents under child support orders who may
appear in similar contempt hearings. Plaintiffs further propose a defendant
class consisting of all New Jersey Superior Court Judges. See Exhibit A.
In the Complaint, Plaintiffs ask for relief in the form of
declaratory judgment that their constitutional rights to an attorney have been
violated, and injunctive relief enjoining the Superior Court Judges from
incarcerating Plaintiffs in the future; requiring Superior Court Judges to
appoint counsel for Plaintiffs in the future, and requiring immediate review of
cases of all persons presently incarcerated for non-payment of child support,
as well as for payment of counsel fees and court costs. See Exhibit A.
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p.8
The New Jersey Defendants now bring this Motion to Dismiss
Plaintiffs' Complaint in Lieu of Answer and respond to Plaintiffs' Order to
Show Cause.
-5-
p.3
ARGUMENT
POINT I
IN A CIVIL CONTEMPT PROCEEDING, PLAINTIFFS ARE NOT ENTITLED
TO THE APPOINTMENT OF COUNSEL
Plaintiffs' case is based in its entirety on their
conclusion that due process entitles them to appointment of counsel at State
expense. However, existing case law in New Jersey demonstrates that plaintiffs'
contention is completely without merit. In civil contempt proceedings for the
enforcement of child support, plaintiffs are not entitled to the appointment of
counsel. Scalchi v. Scalchi, 347 N.J. Super. 493 (App. Div. 2002) . In
Eicalclii, the defendant appealed from an order entered in an enforcement
hearing resulting from an arrears for child and spousal support. Scalchi, 347
N.J. Super. at 495. Scalchi asserted he was indigent and entitled to the
appointment of counsel. Scalchi claimed that he faced future incarceration due
to his significant arrearages and, therefore, was entitled to a lawyer. Id.
Thus, Scalchi raised the same arguments as plaintiffs do here. Significantly,
the Appellate Division upheld the trial court's denial of Scalchi's request for
counsel and concluded that there was no authority in the State of New Jersey in
a civil proceeding for a right to counsel. Id. This same reasoning and result
should apply in the case at hand.
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p.3
ARGUMENT
POINT I
IN A CIVIL CONTEMPT PROCEEDING, PLAINTIFFS ARE NOT ENTITLED
TO THE APPOINTMENT OF COUNSEL
Plaintiffs' case is based in its entirety on their
conclusion that due process entitles them to appointment of counsel at State
expense. However, existing case law in New Jersey demonstrates that plaintiffs'
contention is completely without merit. In civil contempt proceedings for the
enforcement of child support, plaintiffs are not entitled to the appointment of
counsel. Scalchi v. Scalchi, 347 N.J. Super. 493 (App. Div. 2002) . In
Eicalclii, the defendant appealed from an order entered in an enforcement
hearing resulting from an arrears for child and spousal support. Scalchi, 347
N.J. Super. at 495. Scalchi asserted he was indigent and entitled to the
appointment of counsel. Scalchi claimed that he faced future incarceration due
to his significant arrearages and, therefore, was entitled to a lawyer. Id.
Thus, Scalchi raised the same arguments as plaintiffs do here. Significantly,
the Appellate Division upheld the trial court's denial of Scalchi's request for
counsel and concluded that there was no authority in the State of New Jersey in
a civil proceeding for a right to counsel. Id. This same reasoning and result
should apply in the case at hand.
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p.3
ARGUMENT
POINT I
IN A CIVIL CONTEMPT PROCEEDING, PLAINTIFFS ARE NOT ENTITLED
TO THE APPOINTMENT OF COUNSEL
Plaintiffs' case is based in its entirety on their
conclusion that due process entitles them to appointment of counsel at State expense.
However, existing case law in New Jersey demonstrates that plaintiffs'
contention is completely without merit. In civil contempt proceedings for the
enforcement of child support, plaintiffs are not entitled to the appointment of
counsel. Scalchi v. Scalchi, 347 N.J. Super. 493 (App. Div. 2002) . In
Eicalclii, the defendant appealed from an order entered in an enforcement
hearing resulting from an arrears for child and spousal support. Scalchi, 347
N.J. Super. at 495. Scalchi asserted he was indigent and entitled to the
appointment of counsel. Scalchi claimed that he faced future incarceration due
to his significant arrearages and, therefore, was entitled to a lawyer. Id.
Thus, Scalchi raised the same arguments as plaintiffs do here. Significantly, the
Appellate Division upheld the trial court's denial of Scalchi's request for
counsel and concluded that there was no authority in the State of New Jersey in
a civil proceeding for a right to counsel. Id. This same reasoning and result
should apply in the case at hand.
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p.3
ARGUMENT
POINT I
IN A CIVIL CONTEMPT PROCEEDING, PLAINTIFFS ARE NOT ENTITLED
TO THE APPOINTMENT OF COUNSEL
Plaintiffs' case is based in its entirety on their
conclusion that due process entitles them to appointment of counsel at State
expense. However, existing case law in New Jersey demonstrates that plaintiffs'
contention is completely without merit. In civil contempt proceedings for the
enforcement of child support, plaintiffs are not entitled to the appointment of
counsel. Scalchi v. Scalchi, 347 N.J. Super. 493 (App. Div. 2002) . In
Eicalclii, the defendant appealed from an order entered in an enforcement
hearing resulting from an arrears for child and spousal support. Scalchi, 347
N.J. Super. at 495. Scalchi asserted he was indigent and entitled to the
appointment of counsel. Scalchi claimed that he faced future incarceration due
to his significant arrearages and, therefore, was entitled to a lawyer. Id.
Thus, Scalchi raised the same arguments as plaintiffs do here. Significantly,
the Appellate Division upheld the trial court's denial of Scalchi's request for
counsel and concluded that there was no authority in the State of New Jersey in
a civil proceeding for a right to counsel. Id. This same reasoning and result should
apply in the case at hand.
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p. 10
Pursuant to R. 5:7-5, if an obligor fails to make support
payments as directed by an order or judgment, the Probation Division
responsible for monitoring and enforcing compliance shall notify the obligor
that such failure may result in the institution of contempt proceedings. R.
5:7-5. If the failure continues, the court, in its discretion, may institute
contempt proceedings in accordance with R. 1:10-2 and relief may be sought in
accordance with R.__1:10-3 . _Id_._ The court may issue a warrant for failure
to pay support. However, before a defendant can actually be incarcerated, a
hearing must be held to determine if the defendant has the ability to pay and
is presently capable of complying with the order. Scalchi, 347 N.J Super, at
495, citing Saltzman__v. Saltzman, 290 N.J. Super. 117 (App. Div. 1996}. If,
based on the evidence adduced at the hearing, the court determines that a
defendant has the ability to pay but is unwilling to do so, incarceration may
be ordered as a coercive means to require payment, but not as a punitive
measure. Id.
In Lassiter v. Department of__Social Services, 452 U.S. 18,
101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the United States Supreme Court refused
to adopt a per se rule that due process requires appointed counsel for
indigents in parental termination cases and reemphasized the principle that the
right to due process is the right to judicial processes which are
"fundamentally fair."
-7-
p. 11
Anyone facing contempt charges, either criminal or civil, is
under threat of imprisonment. However, a distinction has historically been
drawn between criminal contempt, which is punitive in nature, and civil
contempt, which is remedial or coercive. Department of Health v. Roselle, 34
N.J. 331, 339 (1961) . In a criminal matter, "judgment must be a finite
sentence, whereas if the proceeding is civil, incarceration ends when the need
for coercion ceases, i.e. upon defendant's compliance with the order."
Roselle, 34 N. J. at 339. It is well established that the legal justification
for commitment for civil contempt is to secure compliance- Once it appears that
the commitment has lost its coercive power, the legal justification for it ends
and further confinement cannot be tolerated. Marshall v. Matthei, 327 N. J.
Super. 512 (App. Div. 2000). Essentially, the obligor in a civil contempt holds
the key to his own jail cell. The Sixth Amendment provides constitutional
protections to a defendant in a criminal contempt proceeding because of its
punitive nature. On the other hand, a defendant in a civil contempt proceeding
is guaranteed a proceeding which is ''fundamentally fair' under the due process
clause of the Fourteenth Amendment. Andrews v. Walton, 428 So. 2d 663, 665 (Fl.
1983). This is true in all civil contempt cases, not just those involving
persons in arrears on their child support payments.
p. 12
In a footnote, Plaintiffs argue that the Appellate
Division's decision in Scalchi is not binding here because it was allegedly
limited to a finding that the Sixth Amendment did not require the appointment
of counsel (Pbl6). Even if this were true, however, plaintiffs "14th
Amendment" arguments must also fail. This is so because fundamental
fairness is already incorporated into the criteria which serves as a
prerequisite to imprisonment for non-payment of child support. To satisfy due
process, a person can not be adjudicated guilty of failing to pay child support
and sentenced to imprisonment unless the trial court finds that the person has
the ability to make the payments. Saltzman, supra. An indigent parent cannot be
imprisoned for failure to pay child support because, upon a showing of
indigency, the trial court cannot make the essential finding that the indigent
parent has the ability to pay. Since the parent who is unable to acquire the
necessary funds will not be subject to imprisonment, "fundamental
fairness" is satisfied and due process does not give rise to the right to
appointed counsel. Andrews v. Walton 428 So.2 d 663, 665 (Fl. 1983) . In
Andrews, the Florida court held that there are no circumstances in which a
parent is entitled to court-appointed counsel in a civil contempt proceeding
for failure to pay child support because if the parent has the ability to pay,
there is no indigency, and if the parent is indigent, there is no threat of
imprisonment. Id.
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p. 13
Consistent with this distinction, New Jersey recognizes a
defendant's right to counsel in a criminal matter entailing imprisonment. Rodriquez
v. Rosenblatt, 58 N. J. 281, 295 (1971). However, the current law in New Jersey
has not extended the Roctricruez case to require that counsel be assigned an
indigent in a support enforcement. Scalchi, 347 N.J. Super. at 496. And, the
fact that certain other states may require the appointment of counsel in such
proceedings, a fact cited by plaintiffs in their brief, in not determinative
here. The Scalchi court noted that the "fact alone that other states have
imposed an obligation to appoint counsel in certain civil contempt proceedings
for non-support is an insufficient basis for this court to do so, absent
direction from our Supreme Court." Scalchi, 347 N.J. Super, at 496-497.
The New Jersey courts have complied with the fundamental
fairness standard established in Lassiter. Pursuant to a January 23, 2002
directive from Judge Williams, each of the State's thirteen vicinages were
advised that hearings for incarcerated child support obligors should be
conducted within 72 hours and were reminded that ability to pay determinations
must be made contemporaneously with any decision to incarcerate a child support
obligor. See January 23, 2002 Memorandum from Judge Williams to Assignment
Judges, attached as Exhibit B to the Certification of Diane M. Lamb. Further,
the Administrative Office of the Courts is currently drafting a best practice
for State-wide implementation on
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p. 14
these issues. See Certification of John P. McCarthy, Jr.
Plaintiffs cite anecdotal evidence of cases where individuals were allegedly
incarcerated despite their indigency. These cases predate the directive
referred to above. Further, without review of the facts of each case, it is not
possible to determine if the parties were truly indigent.*
Plaintiffs cite the Appellate Division case, In the Matter
of the Civil Commitment of D.L., 351 N.J. Super. 77 (App. Div. 2003) for the
proposition that indigent persons have a due process right to appointed
counsel. However, D. L. is clearly distinguishable from the present matter. In
D.L., indigent persons appealed orders of the Superior Court requiring
commitment under the Sexually Violent Predator Act (SVPA) . The court held that
indigent persons have a due process right to appointed counsel on appeal.
Although D.L. is a civil, rather than criminal matter, it was not a contempt
proceeding, but a commitment proceeding. Both proceedings can result in the
curtailment of liberty, however, the distinction is that in the present matter,
if the obligor does not have the ability to pay, he or she is not incarcerated.
If the obligor does have an ability to pay, he or she is incarcerated as a
coercive measure. There is no coercive considerations with respect to civil
commitments, and thus D.L. is inapposite.
*0f course, any person who disputes, in an individual case,
the court's determination that they are not in fact indigent, has the
opportunity to appeal that decision.
In summary, the Scalchi decision makes clear that plaintiffs
in a child support payment proceeding do not have a constitutional right to
counsel. Therefore, plaintiffs' Complaint should be dismissed.
POINT II
PLAINTIFFS ARE NOT ENTITLED TO CLASS CERTIFICATION FOR
EITHER THE PLAINTIFF OR DEFENDANT CLASS PURSUANT TO RULE 4:32._______
Plaintiffs have moved to have both the Plaintiff Class and
the Defendant Class certified in this matter. Plaintiffs have no evidence to
substantiate their claims as to numerosity, commonality, typicality or adequacy
of representation. They have presented only conclusory statements in their
brief with no proof of the veracity of their claims. Accordingly, Plaintiffs'
motion for class certification for the Plaintiff Class and the Defendant Class
must be denied.
Class actions are governed by R. 4:32-1 et seq,
("Rule"). The Rule sets forth a two-step process for determining if a
lawsuit may proceed as a class action.
First, plaintiffs must satisfy the four
predicates for certification contained in R. 4
: 32-1(a) concerning (1) numerosity; (2) commonality; (3) typicality; and (4)
adequacy of representation. Second,
plaintiffs must demonstrate that their case complies with one of the subparts
to R. 4:32-1fb). The Rule requires the court to perform an inquiry and analyze
the elements of the substantive claims in order to evaluate whether the requirements
of the Rule have been met. The court
should look beyond the allegations in the complaint to determine whether
plaintiff has satisfied the requirements of the Rule.
-13-
p. 17
Plaintiffs have failed to establish numerosity, commonality,
typicality, or adequacy of representation for either the proposed Plaintiff
Class or the proposed Defendant Class. In their brief, Plaintiffs offer only
conclusory statements as to the satisfaction of each requirement with no
substantive proof offered to verify the statements. An examination of the
requirements with respect to each proposed class will demonstrate that
Plaintiffs have failed to meet their burden of showing that the classes should
be certified.
Plaintiffs contend that the Defendant Class should consist
of all New Jersey Superior Court judges. With respect to numerosity, Plaintiffs
offer the fact that there are over 500 Superior Court Judges in New Jersey, and
of these judges more than 150 judges are assigned to the Family Part.
Plaintiffs claim in their brief that "any Superior Court judge can be
temporarily assigned to any division of the Superior Court on the directive of
the Supreme Court". (Pb23). This effects Plaintiffs' contention that the
Defendant Class has commonality. The fact that not all New Jersey Superior
Court judges conduct child support enforcement hearings means that there would
be many judges in the Defendant Class who did not belong there because
Plaintiffs' claims do not apply to them. Those temporarily assigned to the Family
Part may not be as familiar with enforcement proceedings as a judge regularly
assigned. In addition, each judge in the State who does
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p. 18
hear this type of matter conceivably may have his or her own
method of proceeding in these matters. Therefore, it is conceivable that
Plaintiffs' claims would not even apply to all of the Superior Court judges who
do hear these types of matters. Thus there are not common questions of law and
fact as to the proposed Defendant Class. Plaintiffs are making assumptions and
presenting conclusory statements rather than presenting evidence. The fact that
all judges do not hear these types of matters and that different judges may
conduct these matters differently would also speak to a lack of typicality in
the Defendant Class.
Finally, with regard to the adequacy of representation of
the Defendant Class by the named defendants, Plaintiffs have failed to
establish that the defenses of all the Superior Court judges would be the same
as those named to represent the Class. While the judges named do hear child
support enforcement matters, not all Superior Court judges do. The named
defendants' defenses to Plaintiffs' claims will be different from each other
and from those Superior Court judges who do not hear such matters at all.
Therefore it cannot be said that the defendants named as representatives will
adequately represent the class of Superior Court judges because their interests
as judges who hear child support enforcement hearings or those who supervise the
court system are different than other Superior Court judges who do neither.
Clearly Plaintiffs have failed to carry their burden of
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p. 13
demonstrating that the four requirements of class
certification have been satisfied as to the Defendant Class.
Likewise, Plaintiffs have failed to offer substantive proof
to support their contention that the Plaintiff Class should be certified. With
respect to numerosity, Plaintiffs do not have proof of the numbers relating to
the proposed Plaintiff Class and would have to obtain those numbers through
discovery in this matter. Plaintiffs assert that, in Leonard v. Blackburn, this
Court found that there were in excess of 50,000 enforcement hearings last year.
(Pb22). However, plaintiffs cannot show that all of those who participated in
enforcement proceedings are indigent, or, indeed, the exact nature of each
litigant's financial status'. With respect to commonality, Plaintiffs admit
"the precise underlying facts surrounding each case may differ." See Court's
Opinion in Leonard, dated January 22, 2002. Again each plaintiff's case here is
fact sensitive. Thus, there is no commonality amongst the proposed Plaintiff
Class. There are only many individual decisions by numerous judges and
case-specific experiences of an indeterminate number of parents. Thus,
mini-hearings would be required in order to determine whether a proposed class
member was indigent, was subjected to incarceration, was provided with an
ability to pay hearing, or was incarcerated for some other legal problem.
Therefore, Plaintiffs have failed to satisfy the commonality requirement as
well as the numerosity requirement.
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p.20
For the same reasons that Plaintiffs have failed to prove
commonality, they have also failed to demonstrate typicality. Each proposed
Plaintiff Class member has a unique, case-specific experience based on which
judge he or she appeared before, the reasons for this failure to pay child
support, and the specific facts regarding the ability to pay hearing that is
not necessarily the same experience encountered by the named Plaintiffs in this
case. Plaintiffs cannot simply generalize that all parents have had the same
experience as the named Plaintiffs without some kind of substantiation.
Plaintiffs offer only conclusory statements with no substantive proof. This
also speaks to Plaintiffs' ability to represent all the members of the proposed
Plaintiff Class. With each member having an individual, case-specific
experience, all members may not have the same claims and/or defenses. Thus,
Plaintiffs have not presented any evidence to support their contention that
they can adequately represent the proposed Plaintiff Class.
Accordingly, Plaintiffs' request for certification of the
Defendant Class and the Plaintiff Class in this matter must be denied.
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p.21
CONCLUSION
Based on the foregoing, Defendants' Motion to Dismiss
Plaintiffs' Complaint should be granted.
Respectfully submitted
PETER C. HARVEY
ATTORNEY GENERAL OF NEW JERSEY
By:
Diane M. Lamb
Deputy Attorney General
DATED:
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