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M. v. S.

November 20, 1978

M., ON BEHALF OF T., A MINOR, PLAINTIFF,
v.
S., DEFENDANT



Kleiner, J.c.c. (temporarily assigned).

Kleiner

This is a bastardy proceeding in which defendant, claiming indigency, was assigned counsel. An order was entered, pursuant to the procedure outlined in Smith v. Walker , 138 N.J. Super. 187 (Cty. Ct. 1975), and as further delineated in State v. Horton , 34 N.J. 518 (1961), that all pretrial and trial expenses, judicially determined to be necessary, would be reimbursable to assigned defense counsel by the county, provided the application for payment was on notice to the county treasurer. State v. Horton, supra at 535.

This court, in a letter opinion rendered in this matter, as a companion case with two other bastardy proceedings, distinguished this payment requirement by the county from the decision in Lurry v. Mills , 152 N.J. Super. 127 (Cty. Ct. 1977), insofar as there is no nexus in the case at bar between the party litigants and the county welfare board and due to this court's interpretation of the limitation of judicial power by the doctrine of separation of powers.

Following that holding, defendant's assigned counsel filed a notice of motion on notice to the county treasurer seeking the entry of an order requiring the county to pay for blood grouping tests and the costs of obtaining medical records respecting plaintiff's hospitalization at the time of the birth of her illegitimate child.

On the return day of the motion the county solicitor appeared and challenged the remedy sought, on essentially three grounds:

(1) The county did not receive prior notice that defendant claimed indigency and therefore was precluded from examining defendant on this issue. The crux of this argument is that insofar as the county may be called upon to pay necessary trial and pretrial discovery expenses of an indigent defendant's assigned counsel, it should have the opportunity to investigate the issue of claimed indigency by serving interrogatories upon defendant who claims indigency, and the right to participate in any judicial proceeding where an indigency adjudication is at issue.

(2) Even if a defendant is declared indigent so as to receive assigned counsel, such determination does not require that all necessary expenses are to be paid by the county insofar as the defendant may have the ability to pay for certain necessary expenses.

In response to these two points defendant's assigned counsel raised the issue as to whether he would be entitled to withdraw as counsel if it is determined that a defendant can pay some of the expenses of his defense, insofar as no provision is made to partially compensate him for his services.

(3) The prior court order, which was entered without the participation of county counsel, failed to provide for a procedure for reimbursement to the county of any costs expended, from defendant at some future date.

On the original date of this bastardy proceeding defendant denied paternity and requested the appointment of counsel due to indigency. The court, after questioning defendant under oath, determined he was 17 years old, unemployed and residing with his mother and four other siblings. His mother is receiving welfare assistance and is unable to contribute to the cost of retained counsel, per R. 5:3-3(a).

The court declared defendant indigent and assigned him counsel from the rotating alphabetical list of the private bar. R. 3:27-2. This oral finding, however, was not reflected in the court's minutes of that date, and county counsel therefore sought the right to reinquire into the indigency issue by questioning the juvenile under oath in open court.

Inasmuch as a transcript of the original court proceedings had not been produced, and to test this issue, the court permitted the procedure requested. As of that date of the motion the juvenile defendant had been employed for a ten-day period as a farm laborer in a local seasonal food processing factory, but expected that his employment would be of short duration. He had no other available assets other than his ...


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