Petition for certification and appendix

        The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

Attorney for petitioners

David Perry Davis, Esq.

Statement of the matter involved

     This case asserts that indigent child support obligors are entitled to appointed counsel at support enforcement hearings where they face potential incarceration. 

     In support of their claim, plaintiffs rely on the decision of the United States Supreme Court in Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).  Additionally, there are over a dozen federal and state court decisions that cite Lassiter in this precise context and uniformly agree that the Constitution demands this relief.[1]

     Plaintiffs also rely on the New Jersey Constitution as interpreted by this Court in Perlmutter v. DeRowe, 58 N.J. 5, 13‑14 (1971) and by the Appellate Division in In the Matter of the Civil Commitment of D.L., 351 N.J. Super. 77 (App.Div. 2002).

     The Supreme Court should allow certification in this matter as it poses a significant constitutional question of great public importance.

Questions presented

I.  Was the trial court correct in finding that the United States and New Jersey Constitutions require the appointment of counsel for indigent litigants facing potential incarceration at support enforcement hearings?

II.  Did the Appellate Division misapply the rule of precedent when it held that the trial court erred in not applying the Sixth Amendment analysis of Scalchi v. Scalchi to the Fourteenth Amendment challenge in the case before this Court?

III.  Should plaintiffs be awarded counsel fees and costs, either as a matter of reviewing and reversing the trial court's decision on this issue or based on the New Jersey Civil Rights Act of 2004?

Errors complained of

I.  Was the trial court correct in finding that the United States and New Jersey Constitutions require the appointment of counsel for indigent litigants facing potential incarceration at support enforcement hearings?

     Rather than repeating the arguments on this issue at length, petitioners rely on the trial court's well reasoned and thorough decision[2] and the arguments contained in petitioners' appellate brief, both of which have already been submitted to this Court. 

     In sum, in Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the United State Supreme Court drew a bright line rule that, while due process might require the appointment of counsel in other civil matters where significant liberty interests are at stake, no indigent litigant can constitutionally be compelled to attend a hearing where her or his physical liberty is at stake unless she or he is represented by appointed counsel.  The ruling was unanimous and unambiguous.  Over a dozen subsequent federal court decisions and an equal number of state court cases specifically affirm that Lassiter applies in the context of child support obligors facing coercive incarceration at enforcement hearings.[3] See, e.g., Lake v. Speziale, 580 F.Supp. 1318 (D.Conn.1984);  Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981)Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981);  Walker v. McLain, 768 F.2d 1181 (10th Cir.1985)Walker v. McLain, 768 F.2d 1181 (10th Cir.App. 1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986);  Sevier v. Turner, 742 F.2d 262 (6th Cir.1984)Sevier v. Turner, 742 F.2d 262 (6th Cir.1984);  Ridgeway v. Baker, 720 F.2d 1409 (5th Cir. 1983)Ridgeway v. Baker, 720 F.2d 1409 (5th Cir. 1983);  McKinstry v. Genesee County Circuit Judges, 669 F.Supp. 801 (E.D.Mich.1987)McKinstry v. Genesee County Circuit Judges, 669 F.Supp. 801 (E.D.Mich.1987);  Johnson v. Zurz, 596 F.Supp. 39 (N.D.Ohio 1984)Johnson v. Zurz, 596 F.Supp. 39 (N.D.Ohio 1984);