NOT FOR PUBLICATION
WITHOUT
APPROVAL OF THE
COMMITTEE ON PUBLICATIONS
|
Anne Pasqua, Ray Tolbert, and Michael Anthony,
individually and on behalf of all persons similarly situated,
Plaintiffs
vs.
Poritz Council, et al Hon. Gerald J. Council and Hon. F. Lee Forrester, in their official
capacity as Judges of the Superior Court, and on behalf of all Superior Court
Judges of the State of New Jersey who have in the past conducted Ability to
Pay Hearings or who will in the future conduct Ability to Pay hearings,
Hon. Deborah Poritz, in her official
capacity as Chief Justice of the Supreme Court of New Jersey,
Hon. Richard J. Williams, in his official
capacity as Administrative Director of the Courts of the State of New
Jersey,,
Defendants
|
SUPERIOR COURT OF NEW
JERSEY
LAW DIVISION‑MERCER COUNTY
DOCKET NO. MER‑L‑406‑03
Civil
Action
OPINION
|
─────────────────
Decided: April 24, 2003
David Perry Davis, for the
plaintiffs (David Perry Davis,
Esquire, on the brief).
Peter C. Harvey, Acting
Attorney General of the State of
New Jersey, for the
plaintiffs (Diane M. Lamb, Deputy
Attorney General of the State
of New Jersey, on the brief).
FEINBERG, A.J.S.C.
1
BACKGROUND
In June of 2000,
plaintiffs, three child support obligors,
filed an action in the
United States District Court for the
District of New Jersey.
The complaint named two Superior Court
Judges assigned to the
Family Part; the Chief Justice,
individually and in her
capacity as Chief Justice of the Supreme
Court of New Jersey; and,
Richard Williams, individually and in
his official capacity as
Administrative Director of the Courts, as
defendants. In September
of 2000 the Attorney General, acting on
behalf of all named
defendants, filed a motion to dismiss on the
grounds of judicial
immunity. Plaintiffs opposed the motion to
dismiss and filed a cross‑motion
seeking a preliminary injunction
and class certification.
In October 2000, defendants filed a reply
and asserted the doctrine
of abstention pursuant to Younger v.
Harris, 401 U.S. 37
(1971). On November 16, 2000 oral argument was
held before the Honorable
Garret E. Brown, U.S.D.J.
In March 2001, Judge Brown
granted the application for
abstention. A Notice of
Appeal was filed with the United States
Court of Appeals for the
Third Circuit in June of 2001. On January
2
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 plaintiffs had not
demonstrated 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." Anthony v.
Council, 316 F.3d 412 (3d
Cir. 2003).
On February 14, 2003, the
plaintiffs re‑filed the complaint
along with an order to
show cause seeking preliminary restraints.
On February 24, 2003, this
court denied emergent relief,
established a briefing
schedule and listed the matter for oral
argument on March 28, 2003
at 9:00 a.m. On March 21, 2003,
defendants filed and
served a notice of motion to dismiss the
complaint. Based on issues
presented during the March 28, 2003
oral argument, the court
permitted the parties to submit
supplemental briefs.
It is undisputed that all
three named plaintiffs are under a
current order to pay child
support and that each of them, at
3
different times, has been
incarcerated for the failure to pay
outstanding child support
arrearages. Each of them, according to
counsel, were indigent at
the time of the enforcement hearings and
were entitled to the
appointment of counsel.
ANALYSIS
I.
CHILD SUPPORT ENFORCEMENT
PROCESS
Rule 5:7‑5 sets
forth the procedural mechanism for the
enforcement of child
support obligations and provides:
If a person fails to make
payments or provide health insurance coverage as directed by an order or
judgment, the Probation Division responsible for monitoring and enforcing
compliance shall notify such person by mail that such failure may result in the
institution of contempt proceedings. Upon accumulation of a support arrearage equal
to or in excess of the amount of support payable for 14 days or failure to
provide health insurance coverage as ordered, the Probation Division shall file
a verified statement setting forth the facts establishing disobedience of the
order or judgment. The court in the county in which the person resides ... may
then, in its discretion, institute contempt proceedings in accordance with Rule
1:10‑2, and an
aggrieved party or the
Probation Division on that party's behalf may apply to the court for relief in
accordance with Rule 1:10‑3.[R. 5:7‑5(a).]
As noted in the rule, the
enforcement and collection
process commences upon the
failure of the child support obligor
4
to pay the court ordered
support or provide health insurance
coverage. It is the responsibility
of the Probation Division
responsible for monitoring
and enforcing the obligation, rather
than the office with which
the judgment or order is filed, to
provide notice to the
child support obligor that the continued
failure to provide the required
support may result in the
institution of a
proceeding in accordance with R. 1:10‑2 or an
application in accordance
with R. 1:10‑3.
While oftentimes, when
served with notice by the Probation
Division, a child support
obligor will satisfy the full
outstanding arrearages or
reach an amicable alternative
resolution, many obligors,
despite notice, do not contact the
Probation Division. In
those cases, the Probation Division will
initiate the enforcement
proceedings outlined in R. 5:7‑5 by
filing a motion to enforce
litigant's rights in accordance with
R. 1:10‑3.
In New Jersey, Child
Support Hearing Officers (Hearing
Officer) conduct child
support enforcement hearings. These
officers undergo extensive
training offered through the
Administrative Office of
the Courts (AOC). Based on statewide
statistical information
obtained for the period from July 2001
through June 2002, one‑half
of the matters scheduled before
hearing officers included
initial establishment cases,
5
applications for
modifications or periodic reviews. The
remaining cases were
comprised of enforcement matters initiated
by the Probation
Department. As noted in Leonard v. Blackburn,
MER‑L‑3761‑01,
slip. op. at 7 (Law Div. Jan. 22, 2002)
approximately 50,000
enforcement hearings are scheduled each
year before hearing
officers.
Notices to appear for
child support enforcement hearings
are forwarded by the
Probation Department by regular and
certified mail. Statewide,
the number of obligors who fail to
appear is significant. For
example, in the Mercer Vicinage, the
non‑appearance rate
is approximately sixty‑five percent. If the
hearing officer is
satisfied that notice has been made upon the
defaulting obligor, the
hearing officer will recommend the
issuance of a bench
warrant.1 Absent proof of service, the
matter will be rescheduled
or some other action taken.
Hearing officers assigned
to conduct enforcement hearings
may recommend the
following: (1) a lump sum payment by the
obligor on the day of the
hearing or at some future date
specified in the court
order; (2) the entry of an order that if
the obligor misses two
payments a bench warrant shall issue; (3)
the incarceration of the
defendant until payment is made; or (4)
1 The policy of the AOC is
that personal service is required
before the issuance of a
bench warrant.
6
that the obligor maintain
contact with, and cooperate with the
Probation Department
concerning the collection and enforcement
of child support arrears.2
In those cases in which
the Probation Department recommends
a specific payment plan,
and not incarceration, an obligor may
elect to appeal the
decision of the Hearing Officer. Based on
procedures and policies
established by the AOC, the obligor is
entitled to an immediate
hearing before a Judge in the Superior
Court‑Chancery Division,
Family Part. If the hearing officer has
recommended incarceration
until a specific payment is made, the
obligor is entitled to an
automatic appeal. Based on
statistical information
from the Mercer Vicinage, historically,
the number of appeals is less
than five percent. More
significantly,
recommendations to incarcerate an obligor for the
failure to pay support
represent less than one‑percent of the
recommendations. According
to the Chief of Child Support
Services in the Mercer
Vicinage, the number of recommendations
to incarcerate obligors
has dropped dramatically over the past
several years.
2 If approved by the
court, normally a judge assigned to the
Superior Court, Chancery
Division will sign the appropriate
child support orders or
warrants. In some counties only daytime
warrants are issued. In
others, the obligor may be arrested at
any time of the day.
7
While a bench warrant will
be ordered when an obligor does
not appear for a scheduled
child support enforcement hearing, a
warrant may also be issued
when an obligor appears at an
enforcement hearing, is
given a specific time period to pay
outstanding arrearages, is
advised that the failure to comply
will result in the
issuance of a warrant and the obligor,
nonetheless, does not pay
the required amount due. In these
situations, the Probation
Division will issue a warrant upon the
default of the obligor.
Consistent with the
decision in Leonard, an obligor who is
arrested for the failure
to pay child support must be brought
before the court for an ability
to pay hearing within 72 hours
of the arrest. At the
ability to pay hearing, the Probation
Division must establish
that the obligor violated the court's
child support order. The
obligor then has the burden of showing
an inability to pay. If
the obligor fails to meet the burden,
the court may find him in
willful violation of the order and,
determine the appropriate
means by which to ensure compliance
with the order.
For the most part, child
support enforcement hearings are
initiated when the
Probation Division files a notice of motion
to enforce litigant's
rights. Rule 1:10‑3, provides that
"notwithstanding that
an act or omission may also constitute
8
contempt of court, a
litigant in any action may seek relief by
application in the
action." Significantly, absent a finding
that the debtor has assets
that have been secreted or otherwise
placed beyond the reach of
execution, the rule prohibits the
commitment to enforce a
money judgment; however permits the
commitment to compel the
payment of child support. In pertinent
part, the rule provides:
If an order entered on
such an application
provides for commitment,
it shall specify
the terms of release
provided, however, that
no order for commitment
shall be entered to
enforce a judgment or
order exclusively for
the payment of money,
except for orders and
judgments based on a claim
for equitable
relief including orders
and judgments of the
Family Part and except if
a judgment
creditor demonstrates to
the court that the
judgment debtor has assets
that have been
secreted or otherwise
placed beyond the
reach of execution. In
family actions, the
court may also grant
additional remedies
provided by R. 5:3‑7.
An application by a
litigant may be tried with
a proceeding
under R. 1:10‑2(a)
only with the consent of
all parties and subject to
the provisions of
R. 1:10‑2(c).
[R. 1:10‑3.]
The comments to the rule
recognize that the purpose of the
1994 amendment was to
"make clear that enforcement by
incarceration was never
intended to create a so‑called debtor's
prison, except as to
Family Part orders, general equity orders,
and those instances in
which the debtor is defeating the normal
9
discovery, and execution
process, it is that process and not
incarceration of the
debtor that is to provide the appropriate
collection remedy."
R. 1:10‑3, Comment 5.
The significant
distinction between proceedings pursuant to
R. 1:10‑3 and
proceedings pursuant to R. 1:10‑1 and R. 1:10‑2 is
that, an order of
confinement may not be for a specific
duration; instead the
confinement must be terminable upon the
party's compliance with
the order. Essex County Welfare Bd. v.
Perkins, 133 N.J. Super.
189 (App. Div. 1975), cert. denied, 68
N.J. 161 (1975); Pierce v.
Pierce, 122 N.J. Super. 359 (App.
Div. 1973)(reversing an order
entered pursuant to R. 1:10‑3
which imposed a thirty‑day
jail sentence upon a defendant for
failure to comply with a
support order in a matrimonial cause,
the court holding that the
term must be related to the
continuance of the
noncompliance). Furthermore, a monetary
sanction intended to be
entirely punitive rather than coercive
may not be imposed absent
proceedings under R. 1:10‑2. See
Ridely v. Dennison, 298
N.J. Super. 373, 381 (App. Div. 1997).
As early as 1949 the
courts in New Jersey recognized the
continuous obligation of
parents to support their minor
children. Federbush v.
Federbush, 5 N.J. Super. 107 (App. Div.
1949). Recognizing the
obligation to pay on‑going child support,
the Federbush court
acknowledged that only obligors who had the
10
ability to pay the
outstanding support, but who had willfully
refused to pay risked
incarceration. In Federbush, the court
noted:
The judgment of contempt
must have been
founded upon the court's
conclusion from the
evidence that in
conjunction with
defendant's disobedience
of the order he
clearly possessed the
financial means, but
not the willingness, to
meet the order...
The contempt was civil in
nature and
defendant's instant
ability to respond to
the order was inherent in
the adjudication
of contempt, otherwise the
judgment must
amount to imprisonment for
debt.
Incarceration in civil
contempt is part of
equitable process to
enforce judgment, but
it is available only
against a resistive
suitor capable of meeting
the judgment. His
ability to satisfy the
judgment is his means
of freedom.
[Id. at 112.]
In New Jersey, as in all
states, a child support obligor
cannot be incarcerated for
the failure to pay a child support
obligation until the court
determines that the obligor has the
ability to pay on the
basis of evidence adduced at a hearing at
which he has had the
opportunity to testify. Pierce, supra, 122
N.J. Super. 359;
Federbush, supra, 5 N.J. Super. 107; Saltzman
v. Saltzman, 290 N.J.
Super. 117 (App. Div. 1996). If the court
determines, based on the
evidence adduced at the hearing,
including defendant's
testimony, that a defendant has the
ability to pay but is
unwilling to do so, incarceration may be
11
ordered as a coercive
means to require payment, but not as a
punitive measure.
At issue is not whether
the obligor is entitled to an
ability to pay hearing.
Rather, the issue before this court is
whether an indigent child
support obligor who faces
incarceration is entitled
to the appointment of counsel.
II.
THE RIGHT TO COUNSEL
A. SIXTH AMENDMENT
ANALYSIS
The Sixth Amendment to the
United States Constitution
provides that "in all
criminal prosecutions the accused shall
enjoy the right to have
the assistance of Counsel for his
defense." U.S. Const.
Amend VI. The text of the amendment
guarantees criminal
defendants the right to the assistance of
counsel "in all
criminal prosecutions." It was not until 1963
that the Supreme Court
first applied the Sixth Amendment right
to counsel to the states,
through the Fourteenth Amendment.
Overruling its 1942
holding in Betts v. Brady, 316 U.S. 455
(1942)3 the Court in
Gideon v. Wainwright, 372 U.S. 335 (1963),
held that the right to
counsel for a criminal defendant is
3 In Betts, when
confronted with the quandary of whether due
process mandated the
appointment of counsel for every indigent
criminal defendant, the
Court refused to hold that the due
process clause of the
Fourteenth Amendment incorporated the
Sixth Amendment right to
counsel. Betts, 316 U.S. 455.
12
"fundamental,"
and that "any person haled into court, who is too
poor to hire a lawyer,
cannot be assured a fair trial unless
counsel is provided for
him." Id. at 344. While the Gideon Court
clearly addressed the
issue of due process and the Sixth
Amendment, it did not
ultimately determine what constituted a
"criminal
prosecution" for entailing Sixth Amendment coverage.
In 1972 the court answered
that question with its holding
in Argersinger v. Hamlin,
407 U.S. 25 (1972). Charged in
Florida with carrying a
concealed weapon, a crime punishable by
up to six months
imprisonment, and/or $1,000 fine, plaintiff was
tried, convicted, and
sentenced to ninety days in jail. Upon
these facts the Court held
that a defendant threatened with
imprisonment, regardless
of length of potential sentence, is
entitled to the assistance
of counsel and further, that a
defendant is entitled to
the appointment of counsel when he
cannot afford his own.
Ibid. The Court specifically stated that,
under the Sixth Amendment,
"no person may be imprisoned for any
offense, whether
classified as petty, misdemeanor or felony,
unless he was represented
by counsel at trial." Id. at 37. The
court made clear that the
right to counsel in a criminal case is
not dependent on the
character of the charge, but rather on the
potential loss of liberty.
13
The Court clarified its
position in Scott v. Illinois, 440
U.S. 367 (1979), by
holding that the Sixth Amendment's right to
counsel extended only to
criminal defendants that were faced
with "actual
imprisonment" and that its boundaries did not
include defendants that
were threatened with fines or "the mere
threat of
imprisonment." In Scott, the Court refused to extend
the Sixth Amendment's
right to counsel to include prosecutions
that were criminal, but
did not result in any loss of liberty.
Ibid. Importantly,
Scott leaves undisturbed
the underlying
premise of Argesinger
that, when the state
uses its vast resources to
deprive an
accused of his liberty,
the due process of
the fourteenth amendment
requires that the
accused be represented by
counsel in order
to ensure a fair trial.
Since Gideon, the
focus in determining the
right to appointed
counsel remains on the
deprivation of
liberty ‑ an element
inextricably linked to
the concept of fundamental
fairness.
[Robert S. Catz & Nancy
Lee Firak, The Right
to Appointed Counsel in
Quasi‑Criminal
Cases: Towards an
Effective Assistance of
Counsel Standard, 19 Harv.
C.R.‑C.L. L. Rev.
397, 406 (1984).]
One year prior to the
Argersinger decision, the New Jersey
Supreme Court in Rodriquez
v. Rosenblatt, 58 N.J. 281 (1971),
referring to the Sixth
Amendment right to counsel held:
When the very charge and
the attendant
circumstances indicate
that the indigent
defendant will be in need
of the assistance
of assigned counsel, he
should of course
14
have it. Indeed, whenever
the particular
nature of the charge is
such that
imprisonment in fact or
other consequence of
magnitude is actually
threatened or is a
likelihood on conviction,
the indigent
defendant should have
counsel assigned to
him unless he chooses to
proceed pro se with
his plea of guilty or his
defense at trial.
In those rare instances
where there is a
plea or trial proceeds
without any tender or
assignment of counsel and
actual
imprisonment or other
consequence of
magnitude looms appropriate
to the municipal
judge despite the
preindications to the
contrary, the defendant
should be given the
option of starting anew
with suitable
safeguards including,
where necessary, trial
before a substituted
municipal judge.
[
Id. at 295.]
B. THE SCALCHI v. SCALCHI
DECISION
In Scalchi v. Scalchi, 347
N.J.Super. 493 (App. Div. 2002),
the defendant, Frank
Scalchi, appealed an order entered pursuant
to an enforcement hearing
resulting from arrears of child and
spousal support. At the
hearing before the trial court, defendant
asserted that he was
indigent and was entitled to the appointment
of counsel. Ibid. The
trial court denied the request. Ibid. On
appeal, the defendant,
appearing pro se, raised the identical
issue. Ibid. Affirming the
decision of the trial court, the
Appellate Division held
that the court is not required to appoint
counsel for an indigent
child support obligor at a support
enforcement hearing. Ibid.
15
In a two and one‑half‑page
opinion, the Appellate Division
reasoned that the enforcement
hearings are "civil" in nature and
not "criminal."
Citing Essex County Welfare Bd., supra, 133 N.J.
Super. at 195, the court
recognized previous observations made
regarding child support
enforcement hearings and possible
incarceration, stating:
There is no doubt that
there is a vast
difference between a
[criminal] contempt
proceeding...and a [civil]
proceeding to
enforce litigants rights
...The latter is
essentially a civil
proceeding to coerce the
defendant into compliance
with the court's
order for the benefit of
the private
litigant. In such
proceeding the judge,
before ordering any
sanction, must determine
that the defendant has the
ability to comply
with the order which he
has violated, and
incarceration may be
ordered only if made
contingent upon
defendant's continuing
failure to comply with the
order. Release
must be available
immediately upon
defendant's compliance.
Defendant may not
be sentenced to a specific
jail time.
[
Scalchi, supra, 347 N.J.
Super. at 495‑96.]
Relying on the distinction
between civil contempt and
criminal contempt, the
Appellate Division went on to state that:
In an ideal world with
unlimited resources,
it would be preferable and
appropriate to
assign an attorney who
desired such
representation and could
not afford to pay
for it. The Sixth
Amendment to the United
States Constitution,
however, does not
provide for counsel in a
non‑criminal
setting. The current law
in New Jersey has
not extended the Rodriquez
case to require
that counsel be assigned
to an indigent in a
16
support enforcement
proceeding. The fact
alone that other states
have imposed an
obligation to appoint
counsel in certain
civil contempt proceedings
for nonsupport is
an insufficient basis for
this court to do
so, absent direction from
our Supreme Court.
See, e.g., McBride v.
McBride, 334 N.C. 124
(1993) (citing cases from
Alaska,
Connecticut, Indiana,
Iowa, Maryland,
Michigan, Minnesota,
Nebraska, Texas and
Washington); Young v.
Whitworth, 522 F. Supp.
759 (S.D.Ohio 1981).
[Scalchi, supra, 347 N.J.
Super. at 496‑97.]
Rejecting the notion that
a child support obligor in a
proceeding to enforce
payment is entitled to the appointment of
counsel, the court,
nonetheless in a footnote recognized that in
civil proceedings related
to Title 9 Abuse and Neglect actions,
N.J.S.A. 9:6‑3
(statutorily permitting the respondent parent or
guardian to apply for an
attorney through the Department of
Public Advocate and
requiring the court to appoint a law
guardian for the child)
and termination of parental rights
actions, N.J.S.A. 30:4C‑11
to 24, "that justice demands nothing
less in light of the
magnitude of the consequences involved"
(citing Rodriquez, supra,
58 N.J. at 281 ‑ 95), and therefore
the appointment of counsel
is required.
C. ENTITLEMENT TO COUNSEL BASED
ON THE FOURTEENTH AMENDMENT
The Sixth Amendment is not
the only source of a right to
counsel. The due process
clause of the Fourteenth Amendment
17
affords a second
constitutional basis for the right to counsel.
Therefore, the right to
appointed counsel for an indigent child
support obligor must also
be evaluated under the Fourteenth
Amendment due process
clause. The Fourteenth Amendment to the
United States Constitution
provides that "no person shall be
deprived of life, liberty
or property without due process of law
and equal protection of
the laws." U.S. Const. Amend. XIV.
As noted heretofore, the
defendants filed a motion to
dismiss the complaint for
failure to state a claim relying, for
the most part, on three
arguments. First, defendants assert that
the precise issue before
this court has already been fully
considered and answered
and that the Appellate Division firmly
rejected the identical
claim of entitlement to the appointment
of counsel. Furthermore,
defendants argue that implicit in the
analysis of the State's
obligation under the Sixth Amendment,
the court in Scalchi
analyzed and considered the issue of the
appointment of counsel
based solely on the Fourteenth Amendment.
Second, defendants submit
that regardless of whether this
court finds that Scalchi
is controlling, plaintiffs have failed
to establish any due
process violation under the Fourteenth
Amendment. To support this
position, the defendants argue that
every child support
obligor is entitled to an ability to pay
hearing in order to ascertain
whether a child support obligor is
18
in fact indigent and that
if the court answers that question in
the affirmative, then no
incarceration can or will be ordered.
This process, according to
the defendants, accords with
fundamental fairness and does
not violate due process.
Finally, defendants
represent that an ability to pay
hearing, unlike other
civil proceedings where the courts of this
State have previously
found that a right to the appointment of
counsel exists, does not
place a child support obligor in the
position of being forced
to address sophisticated issues of fact
or law, and thus
appointment of counsel is not warranted.
In response, plaintiffs
submit that, while the court in
Scalchi correctly held
that the Sixth Amendment does not require
the appointment of counsel
in a civil contempt proceeding, it did
not evaluate an obligor's
entitlement to the appointment of
counsel based on the
Fourteenth Amendment. Relying on the
Fourteenth Amendment,
plaintiffs argue that an indigent child
support obligor facing
incarceration is entitled to the
appointment of counsel.
For the reasons set forth
herein, the court rejects the
arguments offered by the
defendants and finds that the
Fourteenth Amendment due
process clause requires the appointment
of counsel for an indigent
child support obligor who faces
incarceration. While the
practical implications of such a
19
decision may be cumbersome
and burdensome, the constitution
demands no less.
The Deputy Attorney
General at the March 28, 2003 oral
argument, noted that the
appellate court in Scalchi makes
reference to other
jurisdictions that, pursuant to the
Fourteenth Amendment's due
process requirements, have recognized
a right to counsel in
civil contempt proceedings: McBride v.
McBride, 334 N.C. 124
(1993) decided by the Supreme Court of
North Carolina, and Young
v. Whitworth, 522 F. Supp. 759 (D.C.
Ohio 1981). Both of these
cases reach the conclusion that the
Fourteenth Amendment
requires appointment of counsel to an
indigent defendant who is
faced with contempt charges for
nonsupport.4 The Attorney
General asserts that reference to
these cases demonstrates
that the court considered the
4 In McBride, the
defendant was held in civil contempt for
failing to pay child
support, and he appealed alleging that his
right to due process was
violated because he was not appointed
counsel for his contempt
hearing. The Court of Appeals affirmed
and remanded, and on
appeal, the Supreme Court of North
Carolina, overruling prior
North Carolina precedent, held that
the principles of due
process embodied in the Fourteenth
Amendment requires the
appointment of counsel to indigents in
civil contempt proceedings
for nonsupport. McBride, supra, 334
N.C. at 132. In Young, an
indigent father filed an application
for a writ of habeas
corpus alleging that his due process rights
were violated when he was
incarcerated for contempt of court in
a nonsupport hearing, but
was not advised of his right to
appointed counsel in such
a case. On respondent's motion to
dismiss, the District
Court held that the Fourteenth Amendment
required that when an
indigent father is faced with imprisonment
on contempt charges for
nonsupport counsel must be provided to
him. Young, supra, 522 F.
Supp. at 766.
20
implications of the Fourteenth
Amendment in reaching its
decision not to appoint
counsel.
The Attorney General's
assertion, while plausible, is not
persuasive. The court's
citations to McBride and Young were
announced by the
introductory signals "See, e.g." and followed
