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Pasqua v. Council

March 8, 2006

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 ONDUCTED 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.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Anne Pasqua, Ray Tolbert, and Michael Anthony are parents who were arrested in Mercer County for not complying with their court-ordered child support obligations. In April and May of 2000, Pasqua was brought before Superior Court Judge F. Lee Forrester and Tolbert and Anthony were brought before Superior Court Judge Gerald J. Council. The judges conducted enforcement hearings to determine each person's ability to pay his or her support obligations. The three were neither represented by counsel at the hearing nor advised of their right to counsel and, if indigent, of a right to appointed counsel. Both judges set an amount of support arrears to be paid as a condition of release.

Pasqua was ordered to pay $3,40 in child support arrears. She spent fifteen days in jail (in addition to three days she served before her hearing) and was released without making any payment toward arrears that totaled $12,886 as of January 2003.

Tolbert was ordered to pay $10,000 in arrears. He spent fifty-six days in jail (in addition to seventeen days he served before his hearing) and was released, apparently without making any payment toward his arrears that totaled $134,700 as of January 2003.

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. As of January 2003, Anthony remained unable to satisfy his $145 weekly support obligations.

In June 2000, Pasqua, Tolbert, and Anthony filed suit in United States District Court seeking relief under

42 U.S.C.A. § 1983. They named Judges Council and Forrester as defendants, along with Chief Justice Deborah Poritz and Richard J. Williams, the then Administrative Director of the Courts. The federal court dismissed the action on the ground that it should not intervene in pending state court actions.

In February 2003, plaintiffs filed suit in Superior Court, Mercer County. Assignment Judge Linda Feinberg heard the matter. After determining that there were no material facts in dispute, Judge Feinberg heard oral argument and filed a written opinion. Relying on Fourteenth Amendment due process grounds, she held that an indigent child support obligor who faces incarceration is entitled to appointed counsel. In so holding, she distinguished an Appellate Division case that had concluded, on Sixth Amendment grounds, that the right to counsel did not apply to a non-criminal setting such as a child support enforcement hearing. She also concluded that plaintiffs were not entitled to counsel fees, defendants having acted within the scope of their judicial duties, and that funding for attorney representation of indigent obligors rested solely with the Legislature.

Both sides to the case appealed to the Appellate Division. In the meantime, the Administrative Office of the Courts issued a protocol implementing Judge Feinberg's rulings. The protocol specifically provided that indigent parents could not be incarcerated to coerce compliance with a child support order. In an unpublished opinion, the Appellate Division reversed, finding Judge Feinberg's decision to be in direct conflict with binding precedent (the Appellate Division case that concluded parents were not entitled to appointed counsel in a child-support hearing context). The Supreme Court granted the petition for certification filed by Pasqua, Tolbert, and Anthony.

HELD: The Fourteenth Amendment Due Process Clause mandates the appointment of counsel to assist parents found to be indigent and facing incarceration at child support enforcement hearings. The due process guarantee of the New Jersey Constitution compels the same result.

1. When a parent's arrears amount to at least fourteen days of child support, the Probation Department is required to file a verified statement setting forth the facts that constitute the disobedience of the court's order. The noncompliant parent may be subject to either a criminal contempt proceeding under Rule 1:10-2 or a proceeding in aid of litigants' rights under Rule 1:10-3, or both. In this case, the matters have proceeded civilly under the latter Rule, which is the approach commonly taken for enforcement hearings. (pp. 12-14)

2. The right to assigned counsel under the federal Constitution does not depend solely on whether a case is classified as criminal or civil. The United States Supreme Court has held that "due process" is nothing more than affording fundamental fairness to a litigant in a particular situation. There is a presumption that an indigent litigant has a right to appointed counsel only when he or she may be deprived of physical liberty. Although the U.S. Supreme Court has not decided the issue presented in the within matter, several United States Courts of Appeals and many state courts have held that assigned counsel are required for indigent litigants facing incarceration at support enforcement hearings. (pp. 14-19)

3. The Court rejects the contention that a judge can adequately protect an indigent parent by conducting a thorough and searching ability-to-pay hearing. However well intentioned and scrupulously fair a judge may be, when a litigant is threatened with the loss of his or her liberty, process is what matters. Although requiring counsel may complicate court order enforcement proceedings, it protects important constitutional values, including the fairness of our civil justice system. (pp. 19-21)

4. Although the text of the New Jersey Constitution does not contain an express "due process" clause, the Court has found that the right to due process is implicit in Article I, Paragraph 1. In other contexts, the Court has determined that indigent parties are entitled to assigned counsel when facing termination of parental rights, tier classification under Megan's Law, or the imposition of a substantial fine and loss of motor vehicle privileges in municipal court. There is no principled reason why indigent parent facing incarceration for an alleged willful refusal to pay child support should be treated differently. (pp. 22-26)

5. Plaintiffs are not entitled to counsel fees. Judges Council and Forrester were acting within the scope of their jurisdiction and performing functions normally performed by judges. They are immune. Further, neither Chief Justice Poritz nor Director Williams caused plaintiffs to be subjected to the deprivation of their right to appointed counsel. Neither committed or omitted any act -- either in their judicial or administrative capacities -- that can properly be found to trigger counsel fee liability under §1983 of the federal statute. They are absolutely immune on a claim for counsel fees under that statute. (pp. 26-31)

6. In the future, at child support enforcement hearings, all parents charged with violating a court order must be advised of their right to counsel. Those parents facing potential incarceration must be advised of their right to appointed counsel if they are indigent and, on request and verification of indigency, must be afforded counsel. Otherwise incarceration may not be used as an option to coerce compliance with support orders. Those parents arrested on warrants for violating their support orders must be brought before a court as soon as possible, but, in any event, within seventy-two hours of their arrest. (p.32)

7. We realize that unless there is a funding source for the provision of counsel to indigent parents in Rule 1:10-3 proceedings, coercive incarceration will not be an available sanction. We will not use our authority to impress lawyers into service without promise of payment to remedy the constitutional defect in our system. The benefits and burdens of our constitutional system must be borne by society as a whole. In the past, the Legislature has acted responsibly to provide funding to assure the availability of constitutionally mandated counsel to the poor. We trust that the Legislature will address the current issue as well. (pp. 32-33)

The judgment of the Appellate Division is REVERSED.

ASSOCIATE JUSTICES LONG, LaVECCHIA, ZAZZALI, WALLACE, and RIVERA-SOTO join in JUSTICE ALBIN's opinion. CHIEF JUSTICE PORITZ did not participate.

The opinion of the court was delivered by: Justice Albin

Argued October 24, 2005

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.

I.

A.

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 ...


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