to appear.
Plaintiffs have not claimed an illegal arrest was involved. In fact, the only claim relating to the time
spent in jail between arrest (for whatever reason) and review before a Family
Part judge is that plaintiff's constitutional rights are being violated when,
for example, it takes seventy-one (71) days from the time of arrest until their
first review. A criminal defendant is entitled to review
and at least a preliminary bail within 12 hours of arrest. R. 3:4-1(2). By contrast, child support detainees have
been held for as long as 93 days without having any review of whether their
incarceration continues to serve a legitimate coercive goal.
Defendants'
legal arguments, claims and the contents of the supporting certifications from
the probation department are unsupported by any cited legal authority
and are at best confusing. Under the
system defendants appear to be alleging is in place, when an obligor is
arrested for failing to appear for an enforcement hearing, a purge amount is
set and the obligor is held indefinitely (subject to review "every two
weeks"). No explanation of the factors allegedly used
to determine the "purge" amount is provided. If this is a bail, the factors pursuant
to State v. Johnson, 61 N.J.
351 (1972) must be applied. If it is a
coercive incarceration, the amount must be tied to the ability of the obligor
to pay. There is no other form of
constitutionally permissible incarceration in New Jersey. Defendants' attempt to create some
mysterious new form of constitutionally permissible incarceration based on a
failure to appear is invalid on its face.
Defendants provide absolutely no support for the assertion that
the Constitution, the provisions of R. 1:10-3 and all the supporting
caselaw completely vanish when a litigant is arrested for failing to
appear. Failure to appear can be
prosecuted as criminal contempt and is a legitimate factor to be considered
when setting a bail. State v.
Johnson, 61 N.J. at 354. It
is not a legitimate factor when establishing the amount required to
purge a contempt order and cannot justify the system defendants seem to assert
is in place.
Moreover,
the remedies available to the Court when a litigant is adjudged to be in
contempt as a result of a failure to appear are very specifically enumerated in
R. 1:2‑4 (a). In
spite of the case law provided with plaintiffs' original application and in
spite of the ongoing series of summary reversals, defendants inexplicably
continue to assert that a purge amount can be legitimately established, during
a court appearance with the obligor present,
without tying the release amount to the ability of the obligor to pay
same. This issue is well settled and
has been discussed at length in volumes of case law dating back to the origins
of our system of jurisprudence. See,
e.g., Nussbaum v. Hetzer, 1 N.J. 171(1948), Lathrop v.
Lathrop, 57 N.J.Super. 532
(App.Div. 1959) ("Effect should be given to the saying . . . that he who is guilty of civil
contempt has the keys of his prison in his own pocket."), Ex Parte
Clark, 20 N.J.L. 648, 45 Am.Dec. 394 (1894).
The remedies
a court may impose on a litigant to purge themselves of contempt do not include
the system of imprisonment "without regard to the ability to comply"
that defendants seem to claim exists.
A purge
amount established at "full arrears" is permissible only
during what should be the very brief period between arrest and appearance at
the first ability to pay hearing.
Amazingly,
Ms. VanEk and Ms. DeSaw certify (the "Mercer Certification") in
paragraph nine that "none of the Mercer Plaintiffs was incarcerated for
failure to pay child support." This
completely specious claim is directly contradicted by the transcripts of the
proceedings involving the Mercer Plaintiffs and cannot be described as having
been made in good faith. It is a
complete inversion of what is occurring.
Exhibit D is
the November 15, 2001 appearance of named plaintiff Gary Davis, before Hon.
Audrey P. Blackburn, JSC. In direct
contradiction to the claims made in the Mercer Certification, Mr. Davis was
incarcerated on September 28 - far more than "two weeks" prior to
November 15. At the hearing, he was
jailed as a result of his failure to pay child support. A $1,000 release amount was set without any
inquiry whatsoever into Mr. Davis' ability to pay same. See Exhibit D at Page 6. Exhibit E is Mr. Davis' second court appearance,
on December 14, 2001 (again, far more than the claimed "two weeks"
elapsed between hearings). On this
date, Mr. Davis appeared before Hon. Thomas P. Kelly, JSC, and was again
incarcerated as a result of his failure to pay child support and, once again,
the Court set a release amount without any evidence Mr. Davis had the ability
to pay same. See Exhibit E at 7. Not incidentally, Mr. Davis is the father of
five children, all of whom were deprived of his non-financial child support
during the nearly 90 days he spent in jail, unable to secure his release. The Court's December 14 Order jailing Mr.
Davis was summarily reversed upon an emergent application to the Appellate
Division. See Exhibit W.
Exhibit F is
the December 14, 2001 appearance of Todd Logan. He had been arrested on October 9. The trial court set a release amount without inquiring into his
ability to pay same (See Exhibit F) and was summarily reversed on
December 20.
Exhibit G is
the November 15, 2001 ability to pay hearing of named plaintiff Jeffrey
Leonard. The transcript indicates he
had last been reviewed on October 11 - again far more than the claimed
"two weeks" (See Exhibit G at Page 4, Line 4). A release amount was set without any inquiry
into his ability to pay same (See Exhibit G at Page 6).
The
remainder of the transcripts (all transcripts, from Ocean, Mercer and Monmouth
Counties)
and the summary reversals tell the same story.
It cannot in good faith be represented to this Court that these people
were kept in jail for "failing to appear." They may originally have been arrested for this reason, but the
subsequent ability to pay hearings were Constitutionally and legally
inadequate.
The Monmouth
County Probation Department's certification is also inaccurate. The attached transcripts and summary
reversals contradict the bad faith claim that no one is incarcerated as a
result of a failure to pay child support.
The transcripts of Mr. Cohen's hearing also proves that he did not, as
directly claimed in the certification, fail to appear. He was in fact incarcerated as a result of
his failure to pay child support. The
transcript of his court appearance is attached hereto as Exhibit A.
The
Certification from Michelle Tierney of Ocean County (received at 11:14 a.m.
Wednesday, January 9, 2002, and requiring the reprinting of this brief) is the
only certification that honestly recounts the system now in place. At paragraph two, the affiant crossed out
the words supplied by the certification's author and corrected same to reflect
the truth:
2. ... a child support obligor .... is summoned
to court to explain ... why payments have not been made. It is at this time that a determination of
an obligor's ability to pay be is may be made. The obligor is may be
given the opportunity at this hearing to present evidence ... If a
legitimate inability to pay is demonstrated, the Obligor would may not be incarcerated but rather some accommodation would may be fashioned to fit the situation. (The Court should
note the initials of the affiant next to each change. Emphasis added.)
Each and
every transcript (Exhibits A-P) verifies that the inconsistent and
unconstitutional process now admitted to by Ocean County is in fact ongoing
throughout the state. Each transcript
demonstrates a judge setting a purge amount based on two impermissible factors:
the payment history of the obligor and the total arrears owed, and in every
case the trial court makes no inquiry into whether the obligor has assets
available to pay the purge amount set.
In the transcripts attached hereto, not once does a judge indicate that
the purge amount is being set based on the obligor's failure to appear.
Defendants'
claim, even if true, would provide no defense.
The record
unequivocally demonstrates that plaintiffs have been held under allegedly
coercive incarcerations as a result of trial courts' failure to make the
required findings that plaintiffs have the current ability to pay whatever
release amount is set, thereby legitimatizing a "coercive"
incarceration. This is not an
"allegation." The enclosed
transcripts and summary reversals, which the Court can take judicial notice of,
establish this as an indisputable fact.
Defendants'
next point claims that plaintiffs "have been incarcerated for ... their
failure to comply with a court order issued after their ability to pay had
already been determined." This
precise argument - that a sufficient determination of "ability to pay";
is made when a child support obligation is imposed (or a request to reduce same
is denied) - has been soundly rejected by the Appellate Division. The law is clear that there must be a contemporaneous
finding of an ability to pay to justify a "coercive"
incarceration. See, e.g., R.
1:10-3 and commentary, Acceturo v. Acceturo, 242 N.J. Super. 281,
287 (App.Div.), certif. denied, 127 N.J. 324 (1990). A finding that a litigant has not shown
changed circumstances sufficient to warrant modification of an Order is not
synonymous - and cannot replace - a finding that the litigant has the current
ability to pay a release amount set by the Court. See also Bachman v. Cohen.
Next,
defendants claim "if a legitimate inability to pay is demonstrated, the
Obligor would not be incarcerated but rather some method of payment appropriate
to the situation would be ordered." In fact, R. 1:10-3 explicitly
requires that, prior to the incarceration of a litigant for a Family Part
obligation, the obligee (or the probation department as the assignee of the
obligee) must "demonstrate to the court that the judgment debtor has
assets that have been secreted or otherwise placed beyond the reach of
execution." In contrast to
defendants' assertion, there is no burden on the obligor to show an inability
to pay. Before the extreme relief of
depriving a citizen of his or her liberty can be justified, the burden is
rightly on the obligee to demonstrate to the Court that assets exist justifying
a coercive incarceration. The
transcripts and reversals demonstrate that defendants routinely do not make any
findings as to the ability of the obligor to pay the release amounts set.
At least on
a provisional basis, the classes should be certified. The injunctive relief sought in plaintiffs'
order to show cause should be granted forthwith.
REPLY
TO COUNTER-STATEMENT OF FACTS
1. Defendants claim that, at an enforcement
hearing, a hearing officer or judge, upon a finding of an inability to pay, can
modify a child support order. This is
procedurally and legally incorrect.
Procedurally, enforcement and modification are separate and distinct
issues and an application to modify must be brought separately. See R. 1:10-3, 5:7-5. Legally, the standard applied on an
application to modify support is not "an inability to pay," it is
"a substantial change in circumstances warranting modification" of
the obligation. Lepis v. Lepis,
83 N.J. 139, 154 (1980).
2. The second half of defendants' #2 is true
and contradicts the first defense raised.
Defendants state:
Again, the obligor would appear before a judge to have the purge
amount set. If the Obligor does not pay
the "purge" amount, he or she would remain incarcerated until the
next scheduled ability to pay hearings or hearings for review are conducted.
This is the
heart of the application before this Court.
Nowhere do defendants claim that an inquiry is made into the ability to
pay of the obligor during their appearance before a judge. Again - plaintiffs admit that the arrests
are justified; they have never challenged same. The challenge is to (1) the time period between arrest and review
and (2) the failure of the court to make contemporaneous findings of a current
ability to pay before setting a "purge" amount and imposing or
continuing a coercive incarceration.
3. Plaintiffs agree that obligors may be
arrested on other matters and held prior to their review in Family Court on a
child support warrant (or detainer).
The reply made to paragraph 2 applies equally here.
4. The purge amount is neither "bail"
nor a "fine," both of which are criminal law terms. Again, if defendants are implying that
plaintiffs are being held as a result of a criminal offense, plaintiffs'
constitutional rights as criminal defendants have been completely ignored.
The
"purge" amount is more akin to ransom (albeit a legitimate ransom
when the obligor has the ability to pay it) than "bail" or a
"fine." It is the required
payment toward arrears that will result in a litigant having their liberty
returned. The money is not "not
returned", which implies it is retained by the entity to which it is paid
(the state). In fact, it is turned over
either to the custodial parent or the county Board of Social Services.
5. It is agreed that an initial purge amount
set at the time of the issuance of a warrant for failure to appear can be any
amount up to the full arrears owed.
Again, this is not the issue.
The issue is how long plaintiffs are held prior to review and what
happens at the review hearing(s).
Defendants acknowledge in paragraph five that the plaintiffs are
incarcerated for "failure to comply with a court order" yet they again
ignore the issue - that incarceration for such failure is only legitimate if
the obligor has the ability to comply with said order.
Defendants
appear to be alleging that once a litigant does not show up for an enforcement
hearing, they lose all their constitutional rights and are no longer entitled
to the protection of any law whatsoever:
Not charged with a crime, they have no right to counsel nor to
bail. Not being held "coercively"
(as a result of failure to pay support), they are not entitled to the
protection of R. 1:10-3 that a current ability to pay be shown. Under defendants' declaration of the facts,
a person could conceivably spend life without the possibility of parole in jail
for a single missed enforcement hearing.
6. Again, defendants' factual allegations as to
the reason for plaintiffs' initial arrest are generally correct and, more
importantly, they are completely irrelevant.
Not all the named plaintiffs (and certainly not all members of the plaintiff
class) were arrested for failing to appear.
Named plaintiff Ronald Cohen walked into a child support hearing and
left in handcuffs. He did not fail to
appear (Exhibit A). Jeffrey Jones was
arrested under a child support warrant; he did not fail to appear.
As to the
other named plaintiffs, defendants curiously state plaintiffs were arrested
"... for failing to comply with a court Order, not for non-payment of
child support." The court orders
at issue require the payment of child support.
It was by the nonpayment or underpayment of support that the Order was
violated.
7. In their paragraph seven, defendants again
confuse an enforcement proceeding with a modification proceeding. Moreover, it is untrue that "none of
the plaintiffs petitioned for a change in their child support amount or
voluntarily came to court to explain why their payments were not being
made." Plaintiff Ronald Cohen did
exactly that, and the vast majority of plaintiffs desperately attempted to
explain their nonpayment at the enforcement hearing where they were incarcerated.
8. Defendants repetitively state (including in
their paragraph 8) that "no Obligor is incarcerated for non-payment of
child support without first having an ability to pay hearing." Again, this is not the issue at hand. The issue is what occurs at said
"ability to pay" hearings; no findings are made, and in fact no
inquiry is made, into the ability of the obligor to pay the release amount
set. The resulting incarcerations are
therefore improper (see transcripts, summary reversals).
9. Each of the defendants committed the acts
alleged in the complaint. That is, each
has conducted ability to pay hearings and has incarcerated members of the
plaintiff class (whether named or otherwise) without making the required
findings.
Most
importantly, plaintiffs do not claim that defendants "are guilty of
wrong-doing" and this inflammatory language is inappropriate. "Guilty" is a term applicable to
criminal law and there has never been any allegation but that each member of
the defendant class has at all times acted with complete integrity in the
performance of their judicial duties.
It is the system that is being challenged, not the character of any of
the defendants, named or otherwise.
ARGUMENT
Point
I
DEFENDANTS' MOTION TO DISMISS PURSUANT
TO R. 4:5-2 MUST BE DENIED.
Initially,
this issue is not properly before the Court.
Pursuant to R. 1:6-3(b), a cross application can only be listed
for hearing if it relates to the subject matter of the original motion. This issue is outside the scope of the order
to show cause and therefore should not be considered.
Substantively,
when ruling on a motion to dismiss, all fact questions are resolved in favor of
the non-moving party. Brill v.
Guardian Life Ins. Co., 142 N.J. 520, 540 (1995), Horby v. King,
13 N.J.Super. 395 (Law Div.1951).
However,
even if the burden was on plaintiffs to prove their case at this early stage of
the proceedings, that burden has been met and exceeded.
Throughout
their pleadings, defendants make conclusory and unsupported factual
allegations. They provide
certifications which are (1) not evidential and (2) in direct contradiction to
the contents of the transcripts attached hereto. Outside these inadmissible documents, they provide absolutely
nothing; not a single exhibit nor a single case that supports their claims.
By great
contrast, attached hereto are transcripts of a number of proceedings. As these are certified transcripts of the
proceedings of another court, this Court can take judicial notice of them. They prove, beyond any doubt whatsoever,
that plaintiffs claims are meritorious and defendants' portrayal of plaintiffs'
incarcerations are disingenuous.
The
defendant class continues to violate the clear text of the Constitution of the
State of New Jersey. Pursuant to
Article 1, 12, "no person shall be imprisoned for debt in any action or
on any judgment founded upon contract, unless in cases of fraud; nor shall any
person be imprisoned for a militia fine in time of peace." In sum, if the Court were to address the
merits beyond the certification and injunction issues in order to consider a
summary disposition of the complaint at this juncture, it could only be in
plaintiffs' favor.
Defendants
claim that all of the emergent appeals were heard on an uncontested basis is
similarly false. The opinion in Bachman
v. Cohen (Exhibit R) reflects Ed Frankin, Esq. as opposing counsel. As the Court is undoubtedly aware, Mr.
Frankin is a partner at Jacobwitz Grabelle Defino McGouhran & Latimer, a
premiere family law firm
in Monmouth County. Wade v. Sweeney
(Exhibit X) was opposed by John A. Hartmann III, a senior partner at
Princeton's Pellettieri, Rabstein and Altman and a family law practitioner with
over 30 years experience.
It should be
noted that neither of these firms (nor the Appellate Division sua sponte)
pursued defendants' claim that the obligors were not incarcerated as a result
of their failure to pay child support, as this claim cannot be supported by any
reading the facts. The attached
transcripts show unequivocally that the plaintiffs were incarcerated for no
reason other than their nonpayment or underpayment of child support and that no
inquiry was made into their ability to pay the release amounts set.
Point
II
PLAINTIFFS ARE ENTITLED TO INJUNCTIVE
RELIEF
Defendants
are accurate that the power to issue an injunction of the magnitude sought by
plaintiffs is an awesome one. It is,
however, no more awesome than the duty placed on this Court to support and
defend the Constitution and laws of our state.
The injunction should issue.
The
transcripts are properly before this Court and via the exercise of judicial
notice they prove that there are no material facts at issue requiring the Court
to refrain from issuing the requested emergent injunctive relief.
Although not
raised by defendants, plaintiffs wish to stress that the injunction issue is
not mooted by the release of the named plaintiffs from incarceration. Under
City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct.
1660, 75 L.Ed.2d 675 (1983), a plaintiff in a civil rights action is entitled
to injunctive relief where they allege a probability that the complained of
conduct will be repeated. Moreover,
although the named plaintiffs may not now be incarcerated, other members of the
plaintiff class are in jail.
Point
III
THE CLASSES SHOULD BE CERTIFIED AT
LEAST ON A PROVISIONAL BASIS SO AS TO GRANT INJUNCTIVE RELIEF.
Class
actions are liberally construed, and such actions are permitted unless there is
clear showing that they are inappropriate or improper. There is a strong preference in the law for
class certification when the requirements of R. 4:32-1 have been satisfied. Carrol v. Cellco Partnership, 313 N.J.Super. 488 (App.Div. 1998).
Defendants
have not shown that class certification under the allegations presented to this
Court would be "inappropriate or improper." In fact, no legitimate reason whatsoever has been presented.
Initially,
defendants' claim that class certification should be denied because a motion to
dismiss is pending is offered without any support in the law. This is because there is no support for this
proposition.
Defendants'
claim that class certification should be denied because plaintiffs' have not
provided proof of their allegations is similarly offered without support. Initially, this is not the standard
applicable to an application for class certification. "While the merits of a putative class representative's
substantive allegations should not factor into the court's decision regarding
class certification, the court should rigorously analyze the allegations
of the complaint relating to the maintainability of the action as a class action." Osgood v. Harrah's Entertainment, Inc., 202
F.R.D. 115, 120 (D.N.J. 2001) citing Gen. Tel. Co. of the Southwest v.
Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Second and more importantly, it is
plaintiffs who have offered admissible and convincing proof of their claims via
the transcripts attached hereto and the series of summary reversals from the
Appellate Division. Defendants have
offered nothing by way of rebuttal and their claims that plaintiffs have failed
to provide proof ring hollow.
As to
numerosity, plaintiffs enclosed an article from the New Jersey Lawyer
indicating that there were in excess of 50,000 child support enforcement
hearings last year. In the absence of
proper discovery, which can only occur after class certification is granted,
this neutral documentary evidence exceeds the "speculative and conclusory
representation" standard as to the requirement of many. W.P. v. Poritz, 931 F.Supp. 1187 (D.N.J. 1996), 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).
While it is
true that less than 500 judges are assigned to the Family Part, the number
exceeds 120. Also, new judges are
routinely assigned to the Family Part and judges on other assignments are
sometimes asked to "fill in" when needed in the Family Part. Plaintiffs are obligated to show only that
joinder would be "difficult", "inconvenient" or
"impracticable." See, e.g., 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). Moreover, judges of the Superior Court have
been certified as a class in many similar cases. See, e.g., Lake v. Speziale, 580 F.Supp. 1318
(D.Conn.1984), Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981).
Parenthetically,
plaintiffs enthusiastically agree with defendants' assertion that "each
judge in the state who does hear this type of matter conceivably may have his
or her own method of proceeding in these matters." Plaintiffs will stipulate to this
allegation. It is why a class action is
necessary and appropriate.
In their
moving papers, plaintiffs asserted that "the precise underlying facts
surrounding each case may differ."
Defendants' claim, again with no legal citation, that this deprives the
plaintiff class of commonality. This is
completely false. In fact, "the
commonality prerequisite requires only that there be some questions
of law or fact common to the class. It
is not necessary that all the factual or legal issues raised by the case
concern each class member." Vargas v. Calabrese, 634 F.Supp. 910, 918
(D.N.J. 1986), citing 7 C. Wright & A. Miller, Federal Practice
& Procedure Section 1763 at 603 (1972) (Emphasis on "some"
in original).
Defendants'
opposition to typicality is similarly made without legal citation and is
similarly flawed. "The Third
Circuit has adopted the test for typicality advanced in 7 Wright and Miller, supra
Section 1763 at 614 . . . [P]laintiff has satisfied [the typicality
requirement] if the claims or defenses of the representatives and the members
of the class stem from a single event or are based on the same legal or
remedial theory." Id. at 919, citing Weiss v. York Hospital,
745 F.2d 786, 806 n. 36 (3rd Cir.1984).
Finally,
when emergent injunctive relief is sought, the Court is authorized to
provisionally certify the classes for the purpose of addressing the application
for injunctive relief, without prejudice to defendants' right to later seek
decertification of the classes. See,
e.g. Murillo v. Bambrick, 508
F.Supp. 830 (D.N.J. 1980).
Plaintiffs
respectfully submit that the allegations of the complaint, especially when
considered in conjunction with the proofs thus far submitted, justify the
entrance of an Order certifying the defendant and plaintiff classes.
Point
IV
THE CLASS OF CHILDREN OF IMPROPERLY INCARCERATED PLAINTIFFS
SHOULD ALSO BE CERTIFIED BY THE COURT.
Defendants
offered no opposition nor discussion of this issue. Plaintiffs respectfully ask the Court to consider this portion of
the application to be unopposed and to grant same for the reasons set forth in
plaintiffs' supporting brief.
CONCLUSION
For the
above listed reasons, the classes should be certified and the requested
preliminary injunction should issue forthwith.
Respectfully
submitted this 9 day of January 2002
____________________________
David Perry Davis, Esq.
