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SUPREME COURT OF NEW JERSEY

No. 56,944

Anne Pasqua, Ray Tolbert, and Michael Anthony, individually and on behalf of all persons similarly situated,

Plaintiffs,

vs.

Hon. Gerald J. Council and Hon. F. Lee Forrester, individually and 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, individually and in her official capacity as Chief Justice of the Supreme Court of New Jersey,

Hon. Richard J. Williams, individually and in his official capacity as Administrative Director of the Courts of the State of New Jersey,

Defendants

Civil Action

PETITION FOR CERTIFICATION TO THE SUPREME COURT OF NEW JERSEY FROM A FINAL JUDGMENT OF THE SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION DOCKET NO. A-6875-02T3

SAT BELOW:

Hon. Barbara Boyd Wecker, JAD

Hon. Harvey Weissbard, JAD

Hon. Philip Carchman, PJAD

Hon. Linda R. Feinberg, AJSC

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.

On the petition

Table of Contents

Table of Authorities iii

Statement of the matter involved 1

The reasons why certification should be allowed 1

The questions presented 2

Errors complained of 3

Comments with respect to the Appellate Division opinion 9

Table of Contents to Appendix[1]

Notice of petition for certification Pa 1-8

Written opinions courts below

Trial court opinion, April 24, 2003 Pa 9-61

Trial court opinion, July 11, 2003 Pa 62-90

Appellate Division Opinion Pa 91-102

Transcript of any relevant oral opinions

Transcript of Oral argument March 28, 2003 Pa 103-127

Transcript of Oral argument July 11 2003 Pa 128-145

The Civil Rights Act of 2004, N.J.S.A. 10:6-1 et seq.

Pa 146-149

TABLE OF AUTHORITIES

*United States Constitution*
U.S. Const. Amend. XIV 8, 13
*Federal Statutes*
Civil Rights Act of 1871 42 U.S.C. � 1983 passim
42 U.S.C. � 1988 14
*State Statutes*
New Jersey Civil Rights Act of 2004 N.J.S.A. 10:6-1 12

Federal Case law

Anthony et al v. Council et al, 316 F.3d 412 (3d. Cir. 2003). 5, 6
Brooks v. New York State Supreme Court, 2002 WL 31528632, at 2 (E.D.N.Y. Aug.16, 2002) 11
Johnson v. Zurz, 596 F.Supp. 39 (N.D.Ohio 1984) 4
Kampfer v. Scullin, 989 F.Supp. 194, 201 (N.D.N.Y.1997) 10
Lake v. Speziale, 580 F.Supp. 1318 (D.Conn.1984) 4
Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) 1, 3
McKinstry v. Genesee County Circuit Judges, 669 F.Supp. 801 (E.D.Mich.1987) 4
Pulliam v. Allen, 466 U.S. 522 (1984) 10, 11, 12
Ridgeway v. Baker, 720 F.2d 1409 (5th Cir. 1983) 4
Sevier v. Turner, 742 F.2d 262 (6th Cir.1984) 4
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) 4
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) 5

New Jersey Case Law

Scalchi v. Scalchi,

347 N.J.Super. 493 (App.Div. 2002) 4, 7, 8, 9

In the Matter of the Civil Commitment of D.L.,

351 N.J. Super. 77 (App.Div. 2002) 3

Perlmutter v. DeRowe,

58 N.J. 5, 13‑14 (1971) 3

Other State Case Law

County of Santa Clara v. Superior Court, 2 Cal.App.4th 1686, 5 Cal.Rptr.2d 7 (1992) 4
Cox v. Slama, 355 N.W.2d 401 (Minn.1984) 4
Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981) 4
McBride v. McBride, 334 N.C. 124, 431 S.E.2d 14 (1993) 4
McNabb v. Osmundson, 315 N.W.2d 9 (Iowa 1982) 4
Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493 (1990) 4
North Dakota v. Gruchalla, 467 N.W.2d 451, 453 (N.D. 1991) 4
Padilla v. Padilla, 645 P.2d 1327 (Colo.App.1982) 5
Rutherford v. Rutherford, 296 Md. 347, 464 A.2d 228 (1983) 5
Sanders v. Shephard, 185 Ill.App.3d 719, 133 Ill.Dec. 712, 541 N.E.2d 1150 (1989) 4
Tetro v. Tetro, 86 Wash.2d 252, 544 P.2d 17 (1975) 5
Young v. Whitworth, 522 F.Supp. 759 (S.D.Ohio 1981) 4

[1]
The documents attached are those required by the Court Rules. The entire record in this matter, including the initial federal complaint, the district court's decision, the decision of the Third Circuit, and all motions and briefs filed are available online at http://www.dpdlaw.com/notable.htm .

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

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); Young v. Whitworth, 522 F.Supp. 759 (S.D.Ohio 1981)Young v. Whitworth, 522 F.Supp. 759 (S.D.Ohio 1981) (federal). McBride v. McBride, 334 N.C. 124, 431 S.E.2d 14 (1993); County of Santa Clara v. Superior Court, 2 Cal.App.4th 1686, 5 Cal.Rptr.2d 7 (1992)County of Santa Clara v. Superior Court, 2 Cal.App.4th 1686, 5 Cal.Rptr.2d 7 (1992); Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493 (1990)Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493 (1990); Sanders v. Shephard, 185 Ill.App.3d 719, 133 Ill.Dec. 712, 541 N.E.2d 1150 (1989)Sanders v. Shephard, 185 Ill.App.3d 719, 133 Ill.Dec. 712, 541 N.E.2d 1150 (1989); In re Marriage of Stariha, 509 N.E.2d 1117 (Ind.App. 1987)In re Marriage of Stariha, 509 N.E.2d 1117 (Ind.App. 1987); Hunt v. Moreland, 697 S.W.2d 326 (Mo.App. 1985)Hunt v. Moreland, 697 S.W.2d 326 (Mo.App. 1985); Cox v. Slama, 355 N.W.2d 401 (Minn.1984)Cox v. Slama, 355 N.W.2d 401 (Minn.1984); Rutherford v. Rutherford, 296 Md. 347, 464 A.2d 228 (1983)Rutherford v. Rutherford, 296 Md. 347, 464 A.2d 228 (1983); McNabb v. Osmundson, 315 N.W.2d 9 (Iowa 1982)McNabb v. Osmundson, 315 N.W.2d 9 (Iowa 1982); Padilla v. Padilla, 645 P.2d 1327 (Colo.App.1982)Padilla v. Padilla, 645 P.2d 1327 (Colo.App.1982); Tetro v. Tetro, 86 Wash.2d 252, 544 P.2d 17 (1975)Tetro v. Tetro, 86 Wash.2d 252, 544 P.2d 17 (1975) (state).

Prior to Judge Feinberg's exhaustive analysis of this issue, New Jersey was one of only four states that continued to incarcerate indigent, unrepresented litigants at child support enforcement hearings.

This suit was originally filed in federal court in May of 2000. In the last four and a half years, the question has been presented to four tribunals. The only decision to address the merits recognized this constitutional mandate and ordered appropriate relief.

In 2001, the United States District Court for the District of New Jersey did not address the merits, abstaining under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

In 2003, the United State Court of Appeals for the Third Circuit, in a published decision, affirmed the abstention decision. The Third Circuit also (sua sponte) raised the issue of standing and determined that plaintiffs' suit does present a constitutional injury sufficient to grant standing. The Third Circuit stated that its abstention ruling was "not intend [ed ] to minimize the importance of the rights asserted. But we believe this constitutional challenge should be raised in the New Jersey courts." Anthony v. Council, 316 F.3d 412, 424 (3d. Cir. 2003).

In 2003, the trial court addressed the merits, issued a detailed and exhaustive opinion, and granted judgment in plaintiffs' favor.[4] In so doing, she discussed and thoroughly distinguished Scalchi v. Scalchi, 347 N.J.Super. 493 (App.Div. 2002), a case brought by a pro se litigant that sought the same ultimate relief (appointment of counsel), but did so on the defective legal theory that the Sixth Amendment controlled the issue.

In 2004, the Appellate Division reversed the trial court, citing the Scalchi decision. The court's opinion does not address the merits or criticize (or even reference) Judge Feinberg's analysis of why Scalchi did not control. The Appellate Division specifically refused to address the underlying constitutional issue, finding that to do so "would be turning a blind eye the very nature of precedent and encouraging trial judges to ignore appellate decisions with which they disagree."[5]

This Court should address the merits and vindicate Judge Feinberg's analysis of why Scalchi did not control as well as her exhaustive and detailed opinion on the constitutional issue.

There are two final, important points that should be considered from a public policy perspective.

Initially, the rights asserted by this suit protect only indigent litigants who are unable to pay child support arrears and who therefore should not be incarcerated at an ability to pay hearing. It does not seek to protect anyone who has the ability but not the inclination to support her or his children.

Second, the states that appoint attorneys for indigent litigants facing incarceration at support enforcement hearings do not have a lower rate of child support collection than New Jersey. In fact, it was uncontested in the trial court that several of them have higher rates.[6]

[1] See Cross-Appellant's Appellate Brief at pages 9-10.

[2] Pa 9-61

[3] Dissenting in Lassiter, Justices Blackmun, Brennan and Marshall argued that the right to appointed counsel should extend to hearings where indigent citizens face consequences less severe than a loss of physical liberty. Lassiter v. Department of Social Services, 452 U.S. at 35, 101 S.Ct. at 2163. Even the most conservative members of the Court agreed that a potential loss of physical liberty triggers the right to appointed counsel.

[4] Pa 9-61.

[5] Although the appellate division stated it was avoiding the merits, it holds in footnote 5 on page 9 that "There are, to date, only three areas of civil litigation in which the [United States ] Supreme Court has concluded that an indigent litigant has a right to appointed counsel. One is where the termination of parental rights is sought. Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)."

This directly misstates the holding of Lassiter. The direct text of Lassiter on this point in fact reads "[t]he pre‑eminent generalization that emerges from this Court's precedents on an indigent's right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation." Lassiter, 452 U.S. at 25.

[6] Pa 125

Once again, this Court is respectfully referred to Judge Feinberg's 52 page opinion on this issue[1] and the arguments presented to the Appellate Division. The opinion spends several pages specifically discussing and distinguishing the Scalchi decision. Aside from the direct analysis found at pages 15-17, Judge Feinberg cites Scalchi over 25 times.

In summary, the trial court's opinion convincingly demonstrates that Scalchi was decided on Sixth Amendment grounds only and was therefore not precedent. The matter before this Court rests on the Fourteenth Amendment to the United States Constitution and state constitutional provisions as interpreted by the New Jersey Supreme Court and New Jersey Appellate Division.

The rule of precedent is not violated when a trial court judge is presented with a different legal theory than the one in the previously decided higher court case.

[1] Pa 9-61.

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?

In Pulliam v. Allen, 466 U.S. 522 (1984), the United States Supreme Court held that injunctive relief could be granted against judicial defendants in a collateral civil rights action such as the case before this Court. "[T ]he absolute judicial immunity doctrine does not insulate judges from suits for prospective relief [under 42 U.S.C. � 1983 ]" Id. at 540-42. The Supreme Court also affirmed that an award of attorney's fees and costs pursuant to 42 U.S.C. � 1988 was appropriate when it was shown that a judicial defendant had violated � 1983. Id. at 543.

Twelve years later, the Federal Courts Improvement Act of 1996 ("FCIA"), Pub.L. No. 104‑317 was enacted. FCIA modified the Civil Rights Act of 1871, 42 U.S.C. � 1983 and 42 U.S.C. � 1988 in two important respects. Initially, it explicitly precluded the issuance of an injunction against a defendant acting in a judicial capacity unless a declarative judgment had been violated. Second, it precluded an award of counsel fees against a defendant acting in a judicial capacity.

In sum, FCIA legislatively abrogated the Supreme Court's decision in Pulliam. See, e.g., Kampfer v. Scullin, 989

F.Supp. 194, 201 (N.D.N.Y.1997) (observing that the FCIA legislatively overruled Pulliam in several important aspects), Brooks v. New York State Supreme Court, Appellate Division, 2002 WL 31528632, at 2 (E.D.N.Y. Aug.16, 2002) (dismissing plaintiff's claim for injunctive relief against the New York State Supreme Court and the Bar Disciplinary Committee and holding that the FCIA "effectively reversed the Court's ruling in Pulliam.")

In the instant matter, the trial court granted the injunction plaintiffs sought and directed the (non judicial) Administrative Office of the Courts to implement procedures to carry out its ruling. Defendants did not argue that the FCIA was applicable.

However, when plaintiffs subsequently applied for counsel fees and costs, the trial court shifted its focus to the existence of judicial defendants in plaintiffs' complaint. It denied the application, citing the FCIA.

Although acknowledging that plaintiffs had prevailed below, the Appellate Division did not address this issue, holding that their reversal had mooted the issue.

The trial court's ruling on this issue was inconsistent, flawed, and contrary to the strong public policy of New Jersey that prevailing � 1983 plaintiffs should be awarded counsel fees and costs. It should be reversed by this Court.

Even without reversing the trial court on this issue, this Court should review the applicability of the newly enacted New Jersey Civil Rights Act of 2004, 10:6-1 et seq., ("the Act") to plaintiffs' application for counsel fees and costs.

The Act, signed into law September 10, 2004, is nearly identical to 42 U.S.C. � 1983 and contains a specific fee shifting provision permitting an award of attorney's fees to a prevailing party. A comparison of the federal and state civil rights statutes demonstrates that New Jersey has sought to be more protective of civil rights than the federal government. Counsel fee awards to prevailing civil rights plaintiffs furthers this legislative intent in that it permits those who cannot afford counsel to seek redress when their civil rights are violated.

Although the New Jersey legislature presumably was aware of FCIA, the New Jersey Civil Rights Act of 2004 does not contain FCIA's language immunizing judicial defendants from injunctive relief and does not prohibit a counsel fee award to a prevailing civil rights plaintiffs when a judicial defendant is involved.

Accordingly, the reasoning applied by the United States Supreme Court in Pulliam should apply and provides independent grounds on which this Court should vindicate the public policy of New Jersey and award plaintiffs counsel fees and costs.

Comments with respect to the Appellate Division opinion

The Appellate Division should not have avoided the constitutional issue. Even if the rule of precedent applied and mandated reversal, the Appellate Division could have admonished the trial court and gone on to fulfill its duty to rule on the trial court's interpretation of the explicit mandate of the United States Supreme Court.

Plaintiffs respectfully but adamantly disagree with the holding of the Appellate Division that plaintiffs' counsel made "frank concessions at oral argument" that an inquiry by trial court judges could satisfy the Constitutional right of an indigent litigant to appointed counsel at an ability to pay hearing. Plaintiffs' counsel did, as noted in the Appellate decision, cite two trial court judges (Hon. Thomas Dilts in Somerset and Hon. Jane Grall in Mercer) who demonstrated extraordinary fairness and who closely adhered to the February 26, 2004 AOC directive[1] issued as a result of the trial court's opinion.

However, plaintiffs next statement at oral argument was that Judges Dilts and Grall were the exception and that (based on the limited anecdotal evidence that plaintiffs' counsel was aware of), many more trial court judges were continuing to conduct ability to pay hearings improperly and, even with the

AOC directive in place, were improperly incarcerating unrepresented litigants (stating on the record, for example, "If you were indigent, this child support obligation would never have been ordered"). Plaintiffs pointed to the string of reversals issued on emergent applications to the Appellate Division as further evidence that trial courts were routinely conducting improper ability to pay hearings.[2]

Plaintiffs' counsel has been adamant that no relief short of appointing counsel for indigent obligors facing jail would satisfy the Constitution and ensure that the only obligors coercively incarcerated at ability to pay hearings are those who actually had the ability to secure their own release.

Certification of Counsel

I hereby certify that the petition for certification in this matter presents a substantial question and is filed in good faith and not for purposes of delay. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements are willfully false, I am subject to punishment.

___________________________

David Perry Davis, Esq.

DATED:

[1] Cross-Appellant's Appellate Appendix at Pa 121-139.

[2] Cross-Appellant's Appellate Appendix at Pa 140-155.

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