D.N. filed a petition for certification in connection with the Appellate Division judgment that is reported at D.N. v. K.M., 429 N.J.Super. 592 (App. Div. 2013). Consistent with current law, the Appellate Division concluded that "the protections of due process do not require the appointment of counsel for indigents presenting or defending a private party's civil domestic violence action." Id. at 606. The dissent recommends that the Court grant certification in this case and examine whether counsel should be appointed for indigent citizens in civil proceedings under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35.
The Act itself does not authorize appointment of counsel for the parties in a domestic violence action. In that regard, New Jersey is not alone. Only one state provides for appointment of counsel for both parties under comparable civil domestic violence laws. See N.Y. CLS Fam. Ct. Act 262(a)(ii). Thus, without any statutory authority, a directive from this Court requiring appointment of counsel would rest on constitutional grounds.
To be sure, such a ruling would affect thousands of cases annually. For the last court year alone, from July 2012 through June 2013, there were approximately 15, 800 hearings for final restraining orders, according to the Administrative Office of the Courts (AOC). The AOC estimates that the vast majority of plaintiffs and defendants in those hearings were not represented by counsel. By way of comparison, there were a total of about 1200 Madden appointments for the year, and roughly two-thirds of them were for contempt proceedings in domestic violence cases.
In any event, this case is not a good vehicle to embark on a constitutional analysis of the issue presented because, based on the record before us, petitioner did not assert that she was indigent or ask the trial court to appoint counsel to represent her. In a similar context in 2009, the Appellate Division declined to consider the right to appointment of counsel in connection with a final restraining order entered under the Act. Crespo v. Crespo, 408 N.J.Super. 25, 45 (App. Div. 2009), aff'd, 201 N.J. 207 (2010). The panel observed that "[t]he record does not reflect that defendant ever sought the appointment of counsel prior to or during the adjudication of this domestic violence matter. Accordingly, in the present setting, the issue is purely academic." Ibid. The same is true here.
The petition for certification is denied. See R. 2:12-4.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in this per curiam opinion. JUSTICE ALBIN filed a separate, dissenting opinion.
JUSTICE ALBIN, dissenting.
Today, my colleagues refuse to hear a case that raises significant questions about the fairness of our civil justice system -- a case that meets every criterion for the grant of certification under our Court Rules. See R. 2:12-4. D.N. has filed a petition for review of D.N. v. K.M., 429 N.J.Super. 592 (App. Div. 2013), in which the Appellate Division held that an indigent defendant is not entitled to appointed counsel when prosecuted for violations of the Prevention of Domestic Violence Act ("Domestic Violence Act"), N.J.S.A. 2C:25-17 to -35. That decision cuts against the grain of a long line of jurisprudence in New Jersey guaranteeing the right to counsel to impoverished defendants facing consequences of magnitude, even in civil cases. The Appellate Division ruled that a poor defendant has no right to appointed counsel in a domestic violence case despite the enormity of consequences that flow from a violation of the Domestic Violence Act. Thus, a defendant mother, who is found to have violated the Act, could lose custody of her children and possession of her house; could face crushing financial penalties and placement of her name on an offender registry, jeopardizing her ability to secure employment, credit and housing; and could forfeit her right to possess a firearm. The loss of these rights and imposition of these penalties may occur on an unlevel playing field where an inarticulate defendant, ignorant of the law and courtroom procedures, is prosecuted by a well-trained, skilled, and experienced attorney representing the opposing party.
The issue before the Court is not "purely academic" as my colleagues contend. D.N. v. K.M., N.J.__, (slip op. at 3) (quoting Crespo v. Crespo, 408 N.J.Super. 25, 45 (App. Div. 2009), aff'd o.b., 201 N.J. 207 (2010)). My colleagues rely on Crespo, supra, 408 N.J.Super. at 45, a case in which the Appellate Division declined to address the issue of the right to appointed counsel in a domestic violence case. Unlike Crespo, here the Appellate Division decided the issue, and its ruling stands as the law of the State until this Court says otherwise.
My colleagues cannot expect that an uncounseled defendant, such as D.N., would know to assert her right to appointed counsel in a domestic violence case. It was the obligation of the Family Court to advise her of that right, which did not happen here. Importantly, D.N. argued on appeal (when represented by counsel) that she was indigent and had the right to appointed counsel, and the Appellate Division addressed the issue in a published decision. I do not understand how my colleagues can say that "this case is not a good vehicle to embark on a constitutional analysis of the issue presented, " D.N., supra, N.J. at (slip op. at 2), when the issue was presented to and decided by the Appellate Division.
Last year marked the fiftieth anniversary of the landmark ruling in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), a case trumpeting the right to counsel for the indigent in criminal cases. After Gideon, this Court took a giant step forward -- far ahead of other courts in the nation --to secure for the poor the opportunity for equal justice in courtrooms throughout this State. See Rodriguez v. Rosenblatt, 58 N.J. 281 (1971). The right to counsel is an essential attribute of a fair trial. The denial of this petition will surely disappoint those who expect ...