The New Jersey Supreme Court ruled yesterday that indigent
parents facing jail for failing to pay child support have a
constitutional right to a court-provided lawyer.
The court called on the state Legislature to find the
money to hire those lawyers. Until it does, those too poor
to hire their own lawyer may not be jailed for falling
behind on their child support obligations, the high court
ruled.
"In the future, at child support enforcement
hearings, all parents charged with violating a court order
must be advised of their right to counsel," Justice
Barry Albin wrote in a 6-0 ruling. Chief Justice Deborah
Poritz, who as administrator of state courts was named as a
defendant in the lawsuit, did not take part.
"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," Albin continued. "Otherwise,
incarceration may not be used as an option to coerce
compliance with support orders."
Albin acknowledged that no money has been appropriated to
hire lawyers and he ruled out a practice that has sometimes
been used: drafting the nearest available lawyer to take the
case for free.
"The benefits and burdens of our constitutional
system must be borne by society as a whole," Albin
wrote. "In the past, the Legislature has acted
responsibly to provide funding to assure the availability of
constitutionally mandated counsel to the poor."
Yesterday's ruling would not prevent judges from
jailing delinquents who had the chance to argue their cases
with the help of lawyers.
The ruling was a victory for Pennington lawyer David
Perry Davis, who has argued for almost six years that
locking up poor people to force them to pay child support
was both "a futile exercise" and, unless they were
given a lawyer, a violation of their constitutional rights.
"I'm obviously pleased," Davis said.
"Hopefully the only ones who will be in jail will be
those who can pay but are refusing to pay."
Davis said New Jersey had been one of only four states
that did not consistently provide lawyers in these cases.
Yesterday's ruling leaves only Pennsylvania, Virginia
and New Hampshire, he said.
The high court's ruling vindicated Mercer County
Assignment Judge Linda Feinberg, who ruled in 2003 that the
constitution requires court-appointed counsel for indigent
parents facing jail. Her ruling was overturned by a state
appeals court in 2004, but the Supreme Court stayed the
practice of jailing indigent parents while it considered the
case.
The Attorney General's Office had argued that judges
are trained to determine whether a parent who is behind on
child support can afford to pay, and therefore
court-appointed lawyers were unnecessary.
The justices disagreed.
"An indigent parent untrained in the law, and
perhaps anxious and inarticulate, needs the guiding hand of
counsel to help prove that his failure to make support
payments was not due to willful disobedience of a court
order but rather to his (destitute) circumstances,"
Albin wrote. He added that without a lawyer, there was
"a high risk of an erroneous determination and wrongful
incarceration."
Davis said Anne Pasqua, the lead plaintiff in the lawsuit
he brought, was an example. Rounded up in a sweep of
deadbeat parents, she told a judge she should be collecting
child support -- not paying it -- because she had custody of
her children, Davis said. He said the judge checked his
records, concluded that Pasqua was "playing games"
and sent her to the Mercer County workhouse.
Davis said that when he interviewed Pasqua there,
"it was obvious she was having a psychiatric
crisis." She was "promptly released" when
that was reported to the judge, he added.
Melville D. Miller Jr., president of Legal Services of
New Jersey, said that in this tight budget year, finding
money to hire lawyers will "probably not" be a
priority, but it may not matter.
Miller said that despite the temporary moratorium on
jailing indigent parents, "we saw no observable drop in
the collection rate." At oral arguments last October,
Miller told the justices there are other ways to get
deadbeat parents to pay, such as suspending their
driver's licenses and intercepting their tax refunds.
Provided by NJ.com
