A
writ of capias ad satisfaciendum is nearly identical to a coercive
incarceration under R. 1:10-3.
In fact, the only distinguishing characteristic is that the writ
involves debts based on contracts (which potentially could be discharged in
bankruptcy) whereas R. 1:10-3 is employed in Family Part matters and
under the Court's general equitable powers to enforce compliance with its
orders. N.J.S.A. 2A:17‑78.
In
discussing a coercive incarceration in connection with a writ of capias ad
satisfaciendum, 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.
The
scope of the due process rights of a civil contemnor facing incarceration upon
a writ of capias ad satisfaciendum have been 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 capias ad
satisfaciendum") and Fidelis Factors Corp. v. Du Lane Hatchery,
Ltd., 47 N.J.Super. 132, 139‑40 (App.Div. 1957).
In
Perlmutter, the Supreme Court of New Jersey held that "civil arrest
under a capias ad satisfaciendum 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 capias ad satisfaciendum 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). This holding is in line with the determination of several courts
that, when considering whether the appointment of counsel is constitutionally
mandated, a Court should look the effect on a defendant's liberty interests,
not the label attached to the proceedings.
See, e.g., Argersinger v. Hamlin, 407 U.S. 25, 32,
92 S.Ct. 2006, 2010, 32 L.Ed.2d 530 (1972) (it is the result, not
the nature of the particular offense, that requires appointment of counsel), 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), Walker v. McLain, 768 F.2d
1181, 1183 (10th Cir. 1985) ("[F]rom the perspective of the person
incarcerated, the jail is just as bleak no matter which label [civil or
criminal contempt] is used.")
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 D.L.
(citing Lassiter), this Court should hold that the Appellate
Division's application of the safeguards of R. 1:10-3 to capias ad
satisfaciendum proceedings also mandates the inverse, or that (as far as
the right to counsel is concerned), "a defendant should have all the same
procedural rights and protections as if he were arrested on a criminal charge
for the same contempt upon which the civil action and the R. 1:10-3
incarceration are based."
In
sum, there is already solid case law from the New Jersey Supreme Court
mandating the appointment of counsel in civil matters where incarceration under
a writ of capias ad satisfaciendum
is involved. This Court should apply
the same reasoning in the context of child support obligors facing
incarceration at enforcement hearings.
II.
SCALCHI V. SCALCHI SHOULD NOT BE READ AS HAVING IMPLICITLY ADDRESSED THE
FOURTEENTH AMENDMENT ISSUES NOT EXAMINED THEREIN.
A. Contrary to the State's position at oral
argument, Scalchi explicitly relies on the Sixth Amendment only.
During
argument of this matter on March 28, the State argued that this Court should
consider Scalchi v. Scalchi, 347 N.J.Super. 493 (App.Div. 2002)
as having implicitly addressed the Fourteenth Amendment issues raised by
plaintiffs.
Scalchi
is silent as to the Fourteenth Amendment and does not so much as contain the
phrase "due process." Had the Scalchi Court intended to
address Lassiter, it would have done so explicitly. Moreover, the Appellate Division in Scalchi
could not have considered Lassiter nor the Due Process arguments raised
here as consideration of these issues would have mandated a different result
than the one reached in Scalchi.
Scalchi correctly decided the Sixth Amendment issues that it
addressed.
During
oral argument in this matter, defendants stated that the Appellate Division
judges in Scalchi "don't come right out and say this is based on
the Sixth Amendment." In fact, the
Appellate Division was clear as to the authority it was considering in reaching
its decision and did "come right out and say this is based on the Sixth
Amendment":
The Sixth Amendment to the United States
Constitution, however, does not provide for counsel in a non‑criminal
setting . . . 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, 431 S.E.2d
14 (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). Id.
at 497.
The
Court in Scalchi based its decision on the Sixth Amendment only. It was not asked, and did not consider, the
Fourteenth Amendment constitutional issues before this Court.
B.
This Court should reject the defendants' request to elevate the form of
the Mastin v. Fellerhoff ruling over its substance.
Defendants
point to Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981),
where a Federal District Court in Ohio held that it "recognize[s ] that [In
re Calhoun, 47 Ohio St.2d 15, 350 N.E.2d 665 (1976) ]
expressly relied on the Sixth Amendment only, but implicit in that holding is a
rejection of any Fourteenth Amendment right to counsel under the same
circumstances."
Initially,
a District Court opinion from Ohio is far from binding on this Court, and, as
this opinion conflicts with the Third Circuit's more explicit examination of
the topic,
same should not persuade this Court to find an implicit rejection of Lassiter
within the Scalchi opinion.
The
above statement was made by the District Court in Mastin in the course
of denying Ohio's abstention application pursuant to Younger v. Harris,
401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and was
the justification asserted to reach the merits, thus abrogating the holding of
the Ohio Supreme Court In re Calhoun, 47 Ohio St.2d 15, 350 N.E.2d
665 (1976) that the appointment of counsel was not required.
The
Federal Court in Mastin was confronted with a situation where the
unambiguous Constitutional mandate of Lassiter was not being applied
and, rather than entering an order that would have resulted in more delay, it
chose to adhere to its duty and address the Constitutional issue placed before
it rather than abstain. Defendants now
ask this Court to invert this reasoning and ignore the unambiguous mandate of the
United States Supreme Court and, in effect, to elevate the form of the Mastin
ruling over its substance. Mastin
provides no authority for its conclusion that the Ohio Supreme Court implicitly
addressed the Fourteenth Amendment when it issued a decision based on the Sixth
Amendment.
If
Mastin is viewed as binding or even persuasive on this Court, the aspect
of the case that should be followed is its conclusion "that plaintiffs in
this case stand to be deprived of their physical liberty is without dispute. The only question is whether the Fourteenth
Amendment requires appointment of counsel in civil, as well as criminal
proceedings, where the litigants are indigent and may be deprived of their
physical liberty. The answer to this
question must necessarily be yes and, although we have some reluctance to
impose such a burden on the state system, the federal Constitution requires no
less."
Defendants
ask this Court to put off for another day and another judge a difficult but
Constitutionally mandated decision. The
Court should not do so.
C. The Third
Circuit's decision in Anthony v. Council necessarily rejects the notion
that Scalchi v. Scalchi addresses the Fourteenth Amendment issue before
this Court.
The
Third Circuit in Anthony v. Council, 316 F.3d 412 (3d.Cir. 2003) sua
sponte examined plaintiff's standing and held that sufficient injury is
alleged under the Fourteenth Amendment to prosecute this matter in Federal
Court. Id. at 416. See also Plaintiffs' Reply Brief at
12-13.
In
upholding the District Court's abstention decision, the Court noted Scalchi'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 "this statement does not demonstrate that the
New Jersey courts are resistant to adjudicating indigent parents'
constitutional rights." Anthony v. Council, 316 F.3d
at 423 (3d.Cir. 2003). If Scalchi is read as having addressed
the Fourteenth Amendment, it is in direct conflict with Lassiter and
would indeed have demonstrated that "New Jersey courts are resistant to
adjudicating indigent parents' constitutional rights."
As
the Third Circuit found standing to pursue this issue under the Fourteenth
Amendment and found that New Jersey is not "resistant to adjudicating
indigent parents' constitutional rights," Scalchi cannot be read as
having addressed the Fourteenth Amendment.
D.
Even if Scalchi is deemed to have addressed the Fourteenth
Amendment, the result is a conflict within the Appellate Division between Scalchi
and D.L.. The Appellate Divisions
decision in D.L. should control.
Defendants'
argument is that Scalchi v. Scalchi, by a thrice-removed implication,
addressed the Due Process Clause of the Fourteenth Amendment (Scalchi
addressing McBride addressing Lassiter addressing the Fourteenth
Amendment). As discussed above, Scalchi
explicitly states that it rests on Sixth Amendment considerations and does not
directly speak to the Fourteenth Amendment nor Lassiter.
Three
months after Scalchi was decided, the Appellate Division decided D.L.,
which explicitly addressed both the Fourteenth Amendment and Lassiter. The only defense the State offered to the
explicit holding of D.L. was that civil psychiatric commitments under
the SVPA differ from contempt proceedings.
However, the Appellate Division explicitly held that "the label
affixed to a case ... is not the dispositive consideration. Rather, we look to the infringement upon the
person's due process rights to guide our decision." Id. at 88-91 (emphasis added).
Directly
citing Lassiter and the Fourteenth Amendment, the Court in D.L.
held that the appointment of counsel is Constitutionally mandated whenever a
defendant's liberty interests are at stake.
CONCLUSION
For
the above reasons, this Court should enter the injunction sought by
plaintiffs. In the event this Court
finds no material fact questions exist warranting further proceedings, the
Court should enter a final Judgment granting plaintiffs' requested declarative
and injunctive relief.
Respectfully
submitted this 4 day of April, 2003
____________________________
David
Perry Davis, Esq.
