Reply
to Counterstatement of Facts
Defendants do
not dispute the salient facts leading to the filing of the complaint and order
to show cause. The plaintiffs, indigent
child support obligors who either failed to make court-ordered child support
payments or who failed to appear for scheduled enforcement hearings, were held
for inordinate periods of time without any review of their incarceration. The issue of the adequacy of the findings
made at ability to pay hearings was not contested by defendants, and, in light
of the admissions in the Ocean County Certification (Pa 100-104) and
"concerns" of the trial court (1T 21-22 to 21-23, Pa 246), this issue
could not reasonably be disputed.
The first
contested assertion by defendants that can be easily clarified is the claim:
Contrary to
the assertion in appellant's brief, the Complaint's allegations focused on the
perceived inadequacy of the ability to pay hearings conducted by the New Jersey
Judges and their setting of purge amounts at a level which appellants unable to
afford, not on the length of time they were incarcerated before receiving a
hearing (Db 1).
This is not
an issue requiring interpretation. The
Complaint and order to show cause speak for them self and clearly and
repeatedly assert the issue of the length of time between arrest and an initial
ability to pay hearing:
4. The second sub-set [of plaintiffs ] have
been deprived of their physical liberty and have had not had a release or purge
amount set at all in spite of their having been arrested days or even weeks ago
(Pa 3-4, Complaint).
and
4. Granting a Preliminary Injunction compelling
the defendants to immediately release all currently incarcerated plaintiffs
pending an ability to pay hearing, or, in the alternative, to conduct a proper
ability to pay hearing within 24 hours (Pa 15, order to show cause).
Insofar as
defendants' combined procedural history and counterstatement of facts further
contradict any other of the factual assertions made by plaintiffs in their
Statement of Facts, plaintiffs rely on the record below and the statement of
facts presented in their brief.
J LEGAL
ARGUMENT
I. THE TRIAL COURT ERRED IN FAILING TO CERTIFY
THE PLAINTIFF AND DEFENDANT CLASSES.
As
to numerosity
After
restating the undisputed text of R. 4:32-1, defendants aver that
"[t ]he court found that, based on the fact that over 50,000 child support
enforcement hearings were conducted each year, appellant's submission of
accusations against five Superior Court judges on the basis of ten transcripts
in only three of the 21 counties in the State fell short of satisfying the
numerosity requirement of the Rule." (Db 8).
The Complaint
was filed as a class action. Its text
does not raise claims "against five Superior Court judges . . . in only
three of the 21 counties," it names five Superior Court judges "as
representative parties on behalf of a defendant class consisting of all the
Superior Court Judges of the State of New Jersey." (Pa 10,
Complaint).
Defendants do
not respond to the controlling law, as set forth in appellants' brief at
length, that the trial court erred by focusing on how many transcripts had been
produced or on the number of named plaintiffs. When considering whether a putative plaintiff class has
established numerosity, a court is to focus on the allegations of the
complaint, not how many named plaintiffs had firmly established their
entitlement to relief at a preliminary hearing on an order to show cause. The court's finding that there were over
50,000 hearings annually, in conjunction with a complaint naming 12 plaintiffs
"individually and on behalf of all persons similarly situated"
satisfies the numerosity requirement of the Rule. See, e.g. W.P. v. Poritz, 931 F.Supp. 1187
(D.N.J. 1996), 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).
Especially in
a civil rights context, even "speculative and conclusory
representations" as to the size of the class suffice as to the requirement
of many. 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), Jones v. Diamond, 519 F.2d 1090, 1100 (5th
Cir.1975).
Plaintiffs
exceeded the standard for establishing numerosity.
As
to commonality
Defendants do
not respond to plaintiffs' assertion that the trial court erred by focusing on
the factual differences between class members rather than on whether "the
class as a whole raises at least one common question of law or fact." Gross
v. Johnson & Johnson‑Merck Consumer Pharms. Co., 303 N.J.Super.
336, 342 (Law Div.1997). See also, In
re Cadillac V8‑6‑4 Class Action, 93 N.J. 412 (1983),
Phillip Steven Fuoco, Robert F. Williams, Class Actions in New Jersey State
Courts, 24 Rutgers L.J. 737, 752 (1993).
The Complaint
alleged that, as a result of defendants' conduct, each plaintiff had been
incarcerated (1) for an inordinate amount of time without an ability to pay
hearing or (2) without having been afforded a constitutionally adequate
hearing. These allegations must be
accepted as true when a court is asked to certify a class, and establish the
required commonality for class certification.
Delgozzo v. Kenny, 266 N.J.Super. 169, 181
(App.Div.1993)(quoting Blackie v. Barrack, 524 F.2d 891, 901 n.
17 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct.
57, 50 L.Ed.2d 75 (1976)).
As
to typicality
Defendants
restate the trial court's ruling on this issue without addressing the claim of
error. A plaintiff's claim satisfies
the typicality requirement for purposes of class certification if it arises
from the same event or course of conduct which has given rise to claims of
other class members. In re Cadillac
V8‑6‑4 Class Action, 93 N.J. 412, 425 (1983).
Defendants
then aver that, because two distinct causes of action were set forth in the
complaint,
the trial court did not err in finding that there was no typicality sufficient
to grant certification as to any issue.
No legal support is provided for this notion, which runs counter to the
concept of judicial efficiency as well as the entire controversy doctrine as
set forth in Circle Chevrolet v. Giordano, Halleran & Ciesla, 142
N.J. 280 (1995).
The Supreme
Court of New Jersey has set forth the test for whether a claim meets the
typicality requirement for class certification. As the claims of the plaintiffs herein "arise from the same
event or course of conduct which has given rise to claims of other class
members", In re Cadillac V8‑6‑4 Class Action, 93 N.J.
412, 425 (1983), the trial Court erred in finding the typicality requirement
was not met.
As
to adequacy
Again,
defendants repeat the trial Court's conclusion without addressing the claim of
error and the case law regarding adequacy.
"Adequacy is presumed in New Jersey courts, and the burden is on
the opposing party to demonstrate that the proposed representation will be
inadequate." Delgozzo v. Kenny,
266 N.J.Super. 169, 181 (App.Div.1993).
Defendants did not address their burden to rebut the presumption of
adequacy, either below or in this Court, and the trial Court's ruling on this
issue constituted reversible error.
As
to certification generally
Finally,
defendants argue repeatedly that plaintiffs "failed to produce
evidence" as to several of the claims made in support of the application
for class certification. This argument
seeks to shift the burden to plaintiffs in spite of the direction of the New
Jersey and United States Supreme Courts that the court was to focus on the allegations
of the complaint, not what had been proved immediately upon the filing of a
complaint or at a preliminary hearing on an order to show cause. Delgozzo v. Kenny, 266 N.J.Super.
169, 181 (App.Div.1993)(quoting Blackie v. Barrack, 524 F.2d 891,
901 n. 17 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct.
57, 50 L.Ed.2d 75 (1976)). The
Court below erred in failing to give plaintiffs "every favorable
view" of the Complaint and the record.
Riley v. New Rapids Carpet Ctr., 61 N.J. 218, 223 (1972).
II. THE TRIAL COURT ERRED IN HOLDING THAT IT WAS
WITHOUT AUTHORITY TO ENTERTAIN A CIVIL RIGHTS SUIT NAMING THE JUDGES OF THE
SUPERIOR COURT AS DEFENDANTS.
Defendants
argue that plaintiffs' application for an injunction was denied as
"appellants had no cognizable claim for relief regarding the procedures
and standards for enforcing child support through enforcement hearings and that
the defendant judges followed the established procedures." (Db 11).
Compliance
with a procedure that is unconstitutional does not negate a civil rights
claim. Defendants' claim has always
been that the "established procedure" (both as to the timing of the
hearings and as to the adequacy of the findings made at the hearings) was constitutionally
inadequate, not that defendants had departed from it.
In response
to the case law establishing that the trial court erred in holding it could not
entertain a class action against fellow Superior Court judges, defendants now
argue "[t ]he court did not hold that it lacked authority to hear
civil rights cases against fellow judges." (Db 12). Defendants make no effort to reconcile this
claim against the relevant statement of the trial Court:
THE
COURT: Yes, but let me ask you
this. I've reviewed those transcripts,
and I have some concerns about the level of inquiry by the judges. I don't dispute that. But, I'm not an appellate court. I'm not an appellate court. And, I don't know what authority that I have
to look at that and say that the judge misapplied the law .... because I don't
believe that I have the authority to look at that transcript and say, I am
going to reverse the -- I don't have the authority, I'm not an appellate court. (T21-8 to 21-23).
The statement
that "I have some concerns about the level of inquiry by the judges. I don't dispute that" can only be
interrupted as a recognition of a "cognizable claim" and the
statements concerning the trial Court's belief that it "lacked
authority" to address the claims, in spite of the trial court's
"concerns", speaks for itself.
The only
other basis asserted by defendants to justify the trial Court's improper denial
of class certification is the legally irrelevant issue of whether the trial
Court complied with the constitutionally inadequate procedures.
III. THE TRIAL COURT ERRED IN FAILING TO AWARD
COUNSEL FEES AS PLAINTIFFS "PREVAILED" AS THAT TERM HAS BEEN DEFINED
BY THE NEW JERSEY SUPREME COURT AND NO "SPECIAL CIRCUMSTANCES" EXISTED
TO REBUT THE STRONG PRESUMPTION THAT A PREVAILING 42 USC § 1983 PLAINTIFF IS
ENTITLED TO COUNSEL FEES AND COSTS.
Singer v.
State, 495 N.J. 487 (1984) sets out two factors that a trial Court
must apply when considering an application for counsel fees in a civil rights
action. When these factors are met,
counsel fees must be awarded absent "special circumstances."
Both Singer
factors were met. The first factor
requires a Court to find a factual nexus between the litigation and the result
obtained. Prior to this litigation,
incarcerated child support obligors were held without an initial ability to pay
hearing for time periods in excess of two weeks. Obligors are now reviewed within 72 hours of
their arrest and every two weeks thereafter.
(Pa 199-201).
Defendants
admit in their brief that appellants' case "may have been what brought the
direction from the Court" (Db 15).
This understates the actual statement of the Court: "as a result,
there is a nexus between the litigation and the relief ultimately
achieved." (2T 14-6 to 14-8).
The first
factor was therefore established.
The second
factor requires that the relief granted had a basis in law. Defendants repeat the trial Court's
incongruent reasoning that compliance with an unconstitutional procedure
negates a civil rights claim and assert that "there was no legal basis for
this direction." (Db 15). In its
findings, the trial Court stated that "in reaching its decision and in
developing the 72 hour time period, [the Court ] did premise its
conclusion on procedural due process." (2T 14-22 to 14-24).
It is
indisputable that a ruling premised on procedural due process is a "legal
basis for a ruling" for purposes of a civil rights claim. See, e.g., Doe v. Poritz, 142 N.J.
1 (1995).
The second
factor was therefore established.
Once the two
factors are established, a trial Court is required to award counsel fees and
costs "unless special circumstances would make the award unjust." Stockton
v. Rhulen, 302 N.J.Super. 236, 241 (App. Div. 1997), citing Frank's
Chicken House v. Mayor and Council, 208 N.J.Super. 542, 545
(App.Div.1986), African Council v. Hadge, 255 N.J.Super. 4,
11-12, (App.Div.1992). Both the United
States and New Jersey Supreme Courts have held that "a prevailing
plaintiff 'should ordinarily recover an attorney's fee unless special
circumstances would render such an award unjust.'" Bolyard v. Berman,
274 N.J.Super. 565 (App.Div. 1994), citing Hensley v.
Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d
40 (1983). See also, Gregg v.
Township Comm., 232 N.J.Super. 34, 39 (App.Div. 1989).
Defendants
did not allege, and the trial Court did not find, that any "special
circumstances" exist warranting a denial of counsel fees. Moreover, the record would not have
supported such a finding. As the
Appellate Division stated in Gregg v. Township Comm., 232 N.J.Super.
34, 39 (App.Div. 1989), "it was the intent of Congress in enacting section
1988 to require an award of fees in all but exceptional cases in order to
encourage litigants to vindicate civil rights violations.... Thus, unless the trial judge advances a
viable reason for the denial of fees, a denial must be reversed."
Conclusion
For the
reasons stated herein, this Court should reverse those portions of the trial
court's January 28, 2002 and March 25, 2002 orders that (1) denied class action
status (2) held that a trial court cannot entertain a civil rights suit where
the defendant class consists of fellow trial court judges, and (3) denied
plaintiffs' application for counsel fees and costs.
The matter
should be remanded for entry of an order granting plaintiffs' application for
attorneys fees and costs and certifying the defendant class, thus making the
relief ordered as to the named defendants applicable across the State.
Respectfully submitted,
David Perry Davis, Esq.
