Pasqua v. Council
| Decision Date | 08 March 2006 |
| Citation | 186 N.J. 127,892 A.2d 663 |
| Parties | Anne PASQUA, Ray Tolbert and Michael Anthony, individually and on behalf of all persons similarly situated, Plaintiffs-Appellants, v. 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 and Hon. Richard J. Williams, individually and in his official capacity as Administrative Director of the Courts of the State of New Jersey, Defendants-Respondents. |
| Court | New Jersey Supreme Court |
David Perry Davis, Princeton, argued the cause for appellants.
Patrick DeAlmeida, Assistant Attorney General, argued the cause for respondents (Peter C. Harvey, Attorney General of New Jersey, attorney; Michael J. Haas, Assistant Attorney General, of counsel).
Melville D. Miller, Jr., President, argued the cause for amicus curiae Legal Services of New Jersey.
David B. Rubin, Metuchen, argued the cause for amicus curiae New Jersey State Bar Association (Stuart A. Hoberman, President, attorney, Woodbridge).
The right to counsel is among our most precious of constitutional rights because it is the necessary means of securing other fundamental rights. It has long been recognized that the right to a fair trial would be an empty promise without the right to counsel. In this appeal, we must determine whether indigent parents charged with violating child support orders and subject to coercive incarceration at ability-to-pay hearings have a right to appointed counsel. We now hold that our Federal and State Constitutions guarantee that right.
Plaintiffs Anne Pasqua, Ray Tolbert, and Michael Anthony are parents who were arrested for not complying with their court-ordered child support obligations. Following their arrests, plaintiff Pasqua was brought before defendant Superior Court Judge F. Lee Forrester, and plaintiffs Tolbert and Anthony were brought before defendant Superior Court Judge Gerald J. Council. Those judges conducted enforcement hearings pursuant to Rule 1:10-3 to determine plaintiffs' ability to pay their support obligations. The essential purpose of those proceedings was to determine whether plaintiffs were in willful disobedience of previously entered court orders. At the hearings, plaintiffs were not represented by counsel. They also were not advised of a right to counsel and, if indigent, of a right to appointed counsel. Both Judge Forrester and Judge Council set an amount of support arrears to be paid by plaintiffs as a condition of their release.
Plaintiff Pasqua was ordered to pay $3,400 in child support arrears as a condition of her release. She spent fifteen days in jail in addition to the three days she served before her hearing until she was freed without making any payment. As of January 2003, her child support obligations totaled $12,886.
Plaintiff Tolbert was ordered to pay $10,000 of his arrears to secure his release. He spent fifty-six days in jail in addition to the seventeen days he served waiting for a hearing before he was freed, apparently without making a payment toward his arrears. As of January 2003, Tolbert owed $134,700 in child support obligations.
Plaintiff Anthony served twenty-four days in jail before he appeared at an enforcement hearing and was released after paying $125 toward his arrears of $49,234. At the time of his release, he was warned that if he missed two future support payments an arrest warrant would issue, and indeed, when Anthony defaulted, one did. On that occasion, Anthony made another payment toward his arrears and the warrant was vacated. As of January 2003, Anthony remained unable to satisfy his $145 weekly support obligations.
In June 2000, plaintiffs filed a lawsuit in the United States District Court for the District of New Jersey seeking relief under 42 U.S.C.A. § 1983 and naming as defendants Judge Forrester; Judge Council; Deborah Poritz, Chief Justice of the Supreme Court of New Jersey; and Richard Williams, former Administrative Director of the Courts. In their complaint, plaintiffs sought a declaration that the Due Process Clause of the Fourteenth Amendment guarantees the right to appointed counsel to indigent parents facing the loss of their liberty at child support enforcement proceedings. Plaintiffs also sought to enjoin defendants from using incarceration as a means of coercing compliance with support orders until indigent parents are provided appointed counsel. Plaintiffs asserted that injunctive relief is required because they still are indigent, cannot pay their support obligations, and face the potential loss of their freedom at future enforcement hearings without the assistance of counsel.
All three plaintiffs alleged that they were incarcerated in violation of their right to counsel due to policies and procedures promulgated by the Chief Justice and the Administrative Director of the Courts. In addition to the foregoing relief, plaintiffs also requested class certification for those similarly situated parents facing coercive incarceration at child support enforcement hearings.
The federal district court dismissed the complaint, reasoning that federal courts ordinarily should abstain from intervening in pending state cases, as explained in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The Third Circuit Court of Appeals affirmed, ruling that to grant "relief here would address issues that plaintiffs can raise in their own cases currently pending in the New Jersey courts."1 Anthony v. Council, 316 F.3d 412, 421 (3d Cir.2003).
In February 2003, plaintiffs filed the same complaint in the Superior Court, Law Division, along with an order to show cause seeking preliminary restraints. Judge Feinberg declined plaintiffs' request for emergent relief, but set the matter down for oral argument. Defendants then filed a motion to dismiss the complaint. Because there was no apparent dispute over the factual allegations in the complaint, after hearing oral argument, Judge Feinberg directly addressed the legal issue raised. In doing so, she denied plaintiffs' application for class certification.
In a comprehensive opinion, Judge Feinberg determined "that the Fourteenth Amendment due process clause requires the appointment of counsel for an indigent child support obligor who faces incarceration." Judge Feinberg rested her decision primarily on Lassiter v. Department of Social Services, 452 U.S. 18, 26-27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640, 649 (1981), which held that in a civil proceeding there is a "presumption" in favor of the right to counsel when an indigent litigant is facing a "depriv[ation] of his physical liberty." Judge Feinberg distinguished her ruling from Scalchi v. Scalchi, 347 N.J.Super. 493, 496, 790 A.2d 943 (App. Div.2002), which held that indigent parents in arrears in their child support obligations have no Sixth Amendment right to counsel at enforcement hearings. The Scalchi panel reasoned that the Sixth Amendment's right to counsel clause did not apply in a "non-criminal setting" and that "current" New Jersey law did not "require that counsel be assigned to an indigent in a support enforcement proceeding." Ibid.
Judge Feinberg did not feel bound by Scalchi because that decision did not premise its denial of the right to counsel on Fourteenth Amendment due process grounds or the Lassiter decision. Judge Feinberg noted that the federal circuit courts that had "addressed this question have determined that due process requires an automatic appointment of counsel for an indigent facing incarceration in a civil contempt proceeding" and that many state courts had reached "the identical conclusion."
As a result of her finding, Judge Feinberg ordered that parents facing potential incarceration at enforcement proceedings for noncompliance with child support obligations must be advised of their right to counsel. Judge Feinberg also ordered that those parents determined to be indigent must be appointed counsel upon their request. In addition, she ruled that indigent parents arrested for violating child support orders must be brought before a court and assigned counsel within seventy-two hours of their arrests.
Judge Feinberg observed that the Public Defender's Office is not "required by statute to represent indigent child-support obligors who face incarceration," and that funding for such representation "rests solely and exclusively with the Legislature." In all other respects, Judge Feinberg referred the implementation of her opinion to the Administrative Office of the Courts.
Judge Feinberg also denied plaintiffs' request for attorney's fees and costs pursuant to 42 U.S.C.A. § 1988, finding that defendants were acting within their judicial capacities and therefore clothed with judicial immunity. She found no causal link between plaintiffs' right-to-counsel claims and any acts or omissions of defendants Chief Justice Poritz and Director Williams. She concluded that the complaint did not allege that those defendants "had any direct personal participation in the decision not to appoint counsel" and that there was no evidence that they had "developed or implemented any administrative policies that compromised a child support obligor's right to the appointment of counsel."
Pending appeals filed by both defendants and plaintiffs, the Administrative Office of the Courts (AOC) prepared a protocol putting into effect Judge Feinberg's ruling. The protocol provided that (1) before the commencement of a child support enforcement hearing, the Probation Division must determine...
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