NJ: Ruling on indigent parents reversed

http://www.courierpostonline.com/app...603090381/1006

Ruling on indigent parents reversed
Thursday, March 9, 2006


By LAUREN O. KIDD
Gannett State Bureau

TRENTON, NJ
The federal and state constitutions guarantee that indigent "deadbeat"
parents have the right to a lawyer when facing jail time at child support
hearings, the state Supreme Court ruled Wednesday.

The 6-0 reversal of an appeals court ruling is the latest decision in a
legal matter that began in 2000, when three Mercer County residents were
jailed, for periods ranging from 15 to 73 days, for not paying child
support. Anne Pasqua, Ray Tolbert and Michael Anthony, who combined owed
nearly $200,000, were not offered or told they had the right to
court-appointed attorneys.

At future child support hearings "all parents charged with violating a court
order must be advised of their rights to counsel. Those parents facing
potential incarceration must be advised of their rights to appointed counsel
if they are indigent and, on request and verification of indigency, must be
afforded counsel," Justice Barry Albin wrote in the 33-page opinion.

Pennington-based lawyer David Perry Davis, who won the case for Pasqua,
Tolbert, Anthony and others in their situation, said the case wasn't about
people who "actually had the money and were driving around in the Porsche,
flipping off the ex-wife."

"My concern is the people who cannot afford to pay, not the few out there
who are willfully disregarding their obligations," Davis said.

Davis said incarceration aimed at getting poor people to pay back child
support was a "futile exercise." He also argued that without the assistance
of counsel, they could not prove they lack the means to pay.

Lawyers for the state said attorneys are not needed in such cases because
Superior Court judges have the ability to analyze the resources, expenses
and earning ability of parents.

Here's the case if anyone wants it:

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.

A-131-04

SUPREME COURT OF NEW JERSEY

2006 N.J. LEXIS 171


October 24, 2005, Argued
March 8, 2006, Decided

PRIOR HISTORY: [*1] On certification to the Superior Court, Appellate
Division. Pasqua v. Council, 183 N.J. 587, 874 A.2d 1106, 2005 N.J.
LEXIS 806 (2005)
Anthony v. Council, 316 F.3d 412, 2003 U.S. App. LEXIS 936 (3d Cir.
N.J., 2003)


DISPOSITION: The judgment of the Appellate Division is REVERSED.

SYLLABUS:

(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, et al. v. Hon. Gerald J. Council, et al. (A-131-04)

Argued October 24, 2005--Decided March 8, 2006

ALBIN, J., writing for the Court.

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 [*2] to appointed counsel. Both judges set an
amount of support arrears to be paid as a condition of release.

Pasqua was ordered to pay $ 3,400 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. [*3] 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 [*4] 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 [*5] , 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 [*6] 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 [*7] 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
[*8] 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)

COUNSEL: David Perry Davis 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 argued the cause for amicus curiae New Jersey State Bar
Association (Stuart A. Hoberman, President, attorney).

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

OPINIONBY: ALBIN

OPINION: JUSTICE ALBIN delivered the opinion of the Court.

The right to counsel is among our most precious of constitutional
rights because it is the necessary means [*9] 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 [*10] 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 [*11] 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. [*12]

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." n1 Anthony v. Council, 316 F.3d 412, 421 (3d Cir.
2003).

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n1 The Third Circuit determined that plaintiffs retrospectively "had
ample opportunity to raise any constitutional claims at their state
contempt hearings" and "could have appealed any adverse decision to
higher courts." Anthony v. Council, 316 F.3d 412, 420 (3d Cir. 2003).
The federal appeals court also determined that plaintiffs prospectively
could raise their constitutional claims in pending state proceedings,
noting that "each plaintiff here is party to an open case that will not
terminate until the child support order is finally discharged." Ibid.
The court concluded that it was "confident that any constitutional
challenge to state court practice would receive proper consideration by
the New Jersey courts." Id. at 423.


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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.

B.

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 "deprivation 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), [*14] 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 [*15] 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 [*16] "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 whether "coercive incarceration is a
reasonable likelihood" and, if so, whether a parent charged with
nonsupport is indigent; (2) every parent must be advised of his right
to retain counsel; and (3) if the court finds a parent to be indigent,
it "may proceed with the hearing, making appropriate findings and
ordering appropriate relief," but until publicly funded counsel is made
available, an indigent parent may not be incarcerated to coerce
compliance with a child support order. The AOC also promulgated
guidelines requiring that parents arrested for nonsupport be taken
before a judge as soon as possible, but, in any event, within
seventy-two hours of their arrest.

C.

In an unpublished opinion, the Appellate Division reversed, finding
Judge Feinberg's [*17] decision to be in direct conflict with Scalchi
and therefore "contrary to binding precedent." According to the panel,
Scalchi broadly "rejected the contention that the United States
Constitution requires that counsel be appointed for indigent child
support obligors who face the threat of incarceration pursuant to R.
1:10-3." Although the Scalchi court engaged in a Sixth Amendment
analysis and Judge Feinberg in a Fourteenth Amendment due process
analysis, the panel concluded that the issues in the two cases were the
same and, therefore, the results should have been the same. The panel
declined to address the merits of the constitutional issue, stating
that to do so "would be turning a blind eye to the very nature of
precedent and encouraging trial judges to ignore appellate decisions
with which they disagree."

The panel "perceived no imminent danger to individual rights resulting
from [its] decision not to address the merits," accepting "the frank
admission of plaintiffs' counsel, at oral argument, that a judge can
adequately protect an obligor by conducting a thorough and searching
ability-to-pay hearing." Supposing that to be true, [*18] the panel
reasoned that the "solution to plaintiffs' perceived problem can be
found readily through judicial education and training, and need not
implicate the right to appointed counsel." In reversing, the panel did
not intend to "suggest any impediment to the voluntary adoption of the
provisions of the protocol" adopted by the AOC. In light of its
decision, the panel deemed plaintiffs' appeal from the denial of
attorney's fees to be moot.

In a concurring opinion, Judge Carchman determined that the
constitutional issue did not have to be addressed because of
"plaintiffs' counsel's concession at oral argument that a searching
inquiry by a trial judge at the ability-to-pay hearing protects an
obligor's rights." Judge Carchman also framed the issue as "implicating
judicial performance rather than the constitutional right to counsel."

We granted plaintiffs' petition for certification, 183 N.J. 587 (2005),
and plaintiffs' motion for a stay of the Appellate Division decision.
We also granted motions filed by the New Jersey State Bar Association
and Legal Services of New Jersey to participate as amici curiae.

II.

Plaintiffs essentially claim that coercive incarceration was [*19] a
futile exercise because they were too destitute to pay their support
obligations. Without the assistance of counsel, they argue, they could
not prove their inability to pay their arrears and thus were denied a
fair hearing. Fearing that they will be arrested again for nonsupport,
they ask that this Court require appointment of counsel for any
indigent parent facing a jail term at a child support enforcement
hearing.

Defendants, on the other hand, insist that analyzing a parent's
resources, expenses, and ability to earn income is "rudimentary in
nature" and therefore maintain that an indigent does not require the
assistance of counsel at a child support enforcement hearing.
Defendants are confident that "Superior Court Judges can make a
searching and detailed inquiry" at those hearings and provide indigent
parents "with sufficient protection from unwarranted coercive
incarceration." Any shortcomings, defendants assure us, can be remedied
through "judicial education and training."

We cannot accept the regime suggested by defendants as an acceptable
constitutional safeguard for an indigent litigant facing incarceration
in a judicial proceeding. The good intentions and fair-mindedness [*20]
of a Superior Court judge are not an adequate constitutional
substitute for a defendant's right to counsel when a jail term is at
stake. Moreover, we are not convinced that child support enforcement
proceedings are so "rudimentary" that indigent parents would not
benefit from the assistance of counsel. Our high level of confidence in
our judiciary cannot be the basis for depriving an indigent litigant
exposed to imprisonment of his federal and state constitutional right
to counsel.

A.

We begin with a brief discussion of the nature of child support
enforcement proceedings. That process begins when a parent fails to
abide by a court-ordered child support obligation. R. 5:7-5(a). When
the parent's arrears are equal to or greater than fourteen days of
child support, the Probation Division is required to "file a verified
statement setting forth the facts establishing disobedience of the
[court's] order." Ibid. The noncompliant parent may be subject to
either a criminal contempt proceeding pursuant to Rule 1:10-2, or a
proceeding in aid of litigants' rights pursuant to Rule 1:10-3 [*21] ,
or both.

A contempt proceeding under Rule 1:10-2 is "essentially criminal" in
nature and is instituted for the purpose of punishing a defendant who
fails to comply with a court order. Essex County Welfare Bd. v.
Perkins, 133 N.J. Super. 189, 195, 336 A.2d 16 (App. Div.) (citing In
re Reeves, 60 N.J. 504, 291 A.2d 369 (1972); In re Carton, 48 N.J. 9,
222 A.2d 92 (1966); N.J. Dep't of Health v. Roselle, 34 N.J. 331, 169
A.2d 153 (1961); Pierce v. Pierce, 122 N.J. Super. 359, 300 A.2d 568
(App. Div. 1973)), certif. denied, 68 N.J. 161, 343 A.2d 449 (1975). At
such a proceeding, the "defendant is entitled to counsel and other
safeguards appropriate to criminal proceedings." Ibid.

On the other hand, a proceeding to enforce litigants' rights under Rule
1:10-3 "is essentially a civil proceeding to coerce the defendant into
compliance with the court's order for the benefit of the private
litigant" and "incarceration may be ordered only if made contingent
upon defendant's continuing failure to comply with the order. [*22] "
Ibid. In this case, we are concerned with enforcement proceedings under
Rule 1:10-3, which are commonly instituted to bring defaulting parents
in compliance with child support orders. Judicial Council, Use of
Warrants and Incarceration in the Enforcement of Child Support Orders 1
(Feb. 26, 2004). n2

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n2 When the Probation Division moves to enforce a child support order
pursuant to Rule 1:10-3, the parent in arrears typically will receive
notice to appear before a Child Support Hearing Officer, who is charged
with the initial responsibility of enforcing the court's order. R.
5:25-3(b), (c). At the proceeding, the parent is given the opportunity
to present testimony and evidence concerning his or her ability to pay
the support required. R. 5:25-3(c)(2). The Hearing Officer evaluates
the evidence presented, determines whether the parent failed to comply
with the child support order, and, if so, the extent of noncompliance,
and then makes a recommendation to the Presiding Judge of the Family
Part for enforcement of the order. R. 5:25-3(c)(8), (d)(1); Judicial
Council, Use of Warrants and Incarceration in the Enforcement of Child
Support Orders, 1-2 (Feb. 26, 2004). The Hearing Officer may recommend
that the court issue a warrant for a party who has failed to appear in
response to a notice. R. 5:25-3(c)(11). That officer also may recommend
that a parent who has failed to comply with a support order be
incarcerated. R. 5:25-3(c)(10)(B). The interested parties may object to
the recommendations, which will result in an immediate de novo hearing
(not based on the record below) before a Superior Court judge pursuant
to Rule 5:25-3(d)(2). At that hearing, before ordering coercive
incarceration, the court must find that the parent was capable of
providing the required support, but willfully refused to do so. See
Pierce v. Pierce, 122 N.J. Super. 359, 361, 300 A.2d 568 (App. Div.
1973).


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B.

We now address whether the Federal Constitution requires the
appointment of counsel for an indigent parent facing incarceration at a
child support enforcement hearing. The Due Process Clause of the
Fourteenth Amendment to the United States Constitution provides that no
state shall "deprive any person of life, liberty, or property, without
due process of law." U.S. Const. amend. XIV, § 1. It is well
established that an indigent defendant subject to imprisonment in a
state criminal case has a right to assigned counsel pursuant to the
Sixth Amendment as applicable to the states through the Fourteenth
Amendment's Due Process Clause. See Argersinger v. Hamlin, 407 U.S. 25,
92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972); Gideon v. Wainwright, 372 U.S.
335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). The right to assigned
counsel, however, does not depend solely on whether a case is
classified as criminal or civil. Lassiter v. Dep't of Soc. Servs.,
supra, 452 U.S. at 25, 101 S. Ct. at 2159, 68 L. Ed. 2d at 648 (citing
In re Gault, 387 U.S. 1, 41, 87 S. Ct. 1428, 1451, 18 L. Ed. 2d 527,
554 (1967)). It is "the defendant's [*24] interest in personal
freedom, and not simply the special Sixth and Fourteenth Amendments
right to counsel in criminal cases, which triggers the right to
appointed counsel." Id. at 25, 101 S. Ct. at 2158, 68 L. Ed. 2d at 648.
After all, the adverse consequences of a particular civil proceeding
can be as devastating as those resulting from the conviction of a
crime.

In Lassiter, the United States Supreme Court considered whether the Due
Process Clause afforded an indigent litigant the right to assistance of
appointed counsel at termination of parental rights hearings. Id. at
24, 101 S. Ct. at 2158, 68 L. Ed. 2d at 647-48. While not finding an
absolute right to counsel at such hearings and leaving to the trial
courts to determine when counsel should be assigned on a case-specific
basis, the Court addressed the constitutional underpinnings of the
right to counsel in civil actions. Id. at 31-32, 101 S. Ct. at 2162, 68
L. Ed. 2d at 652. The Court began by recognizing that "due process" is
nothing more than affording "fundamental fairness" to a litigant in a
particular situation. Id. at 24, 101 S. Ct. at 2158, 68 L. Ed. 2d at
648. [*25] In assessing whether the Fourteenth Amendment guaranteed
the right to counsel at termination hearings, the Court turned to the
analysis propounded in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.
Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976). The Mathews "due process"
analysis requires consideration of "the private interests at stake, the
government's interest, and the risk that the procedures used will lead
to erroneous decisions." Lassiter, supra, 452 U.S. at 27, 101 S. Ct. at
2159, 68 L. Ed. 2d at 649 (citing Mathews, supra, 424 U.S. at 335, 96
S. Ct. at 903, 47 L. Ed. 2d at 33).

With that construct in mind, the Court explained that "the pre-eminent
generalization that emerges from [the] Court's precedents on an
indigent's right to appointed counsel is that such a right has been
recognized to exist only where the litigant may lose his physical
liberty if he loses the litigation." Id. at 25, 101 S. Ct. at 2158, 68
L. Ed. 2d at 648. Thus, there is a "presumption that an indigent
litigant has a right to appointed counsel only when, if he loses, he
may be deprived of his physical liberty." Id. at 26-27, 101 S. Ct.
[*26] at 2159, 68 L. Ed. 2d at 649. The Mathews factors must be
weighed against the presumptive right to appointed counsel that
attaches when an indigent is subject to incarceration. Id. at 27, 101
S. Ct. at 2159, 68 L. Ed. 2d at 649.

Although the United States Supreme Court has yet to address the issue
before us, several United States Courts of Appeals have held that due
process requires appointed counsel for indigent litigants facing
incarceration at support enforcement proceedings. See Walker v. McLain,
768 F.2d 1181, 1185 (10th Cir. 1985) (holding that "due process does
require, at a minimum, that an indigent defendant threatened with
incarceration for civil contempt for nonsupport, who can establish
indigency under the normal standards for appointment of counsel in a
criminal case, be appointed counsel to assist him in his defense"),
cert. denied, 474 U.S. 1061, 106 S. Ct. 805, 88 L. Ed. 2d 781 (1986);
Sevier v. Turner, 742 F.2d 262, 266-67 (6th Cir. 1984) (holding that
father incarcerated for failure to pay child support was entitled to
counsel during civil contempt proceeding); Ridgway v. Baker, 720 F.2d
1409, 1415 (5th Cir. 1983) [*27] (holding that unrepresented father
imprisoned for contempt for failure to pay child support had right to
appointed counsel because "defendant who is threatened with jail has
the right to a lawyer").

Relying on the Fourteenth Amendment Due Process Clause, many state
courts likewise have concluded that indigent litigants facing
incarceration at support hearings have a right to appointed counsel. n3
Those jurisdictions recognize the strong government interest in
enforcing support orders in furtherance of a state's parens patriae
responsibility to protect the welfare of children--one of the Mathews
factors. Nonetheless, when weighing that factor against the other
Mathews factors--the private interest in personal freedom and the need
to ensure accurate proceedings--the presumption in favor of the right
to appointed counsel cannot be overcome.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n3 See, e.g., Ex parte Parcus, 615 So. 2d 78, 84 (Ala. 1993) (per
curiam) (holding "that in a contempt proceeding for nonsupport an
indigent defendant may not be incarcerated if the defendant has not
been informed of the right to counsel or has been denied counsel");
Black v. Div. of Child Support Enforcement, 686 A.2d 164, 168 (Del.
1996) (holding that "due process requires counsel be appointed for the
indigent obligor" who "faces the possibility of incarceration"); McNabb
v. Osmundson, 315 N.W.2d 9, 10, 14 (Iowa 1982) (holding that "counsel
must be appointed" to "indigent facing a jail sentence in a contempt of
court proceeding" for nonpayment of child support); Rutherford v.
Rutherford, 296 Md. 347, 464 A.2d 228, 237 (Md. 1983) (holding that
"under the Due Process Clause of the Fourteenth Amendment and Article
24 of the Maryland Declaration of Rights, an indigent defendant in a
civil contempt proceeding cannot be sentenced to incarceration unless
he has been afforded the right to appointed counsel"); Mead v.
Batchlor, 435 Mich. 480, 460 N.W.2d 493, 504-05 (Mich. 1990) (holding
that "Due Process Clause of the Fourteenth Amendment precludes
incarceration of an indigent defendant in a contempt proceeding for
nonpayment of child support if the indigent has been denied the
assistance of counsel"); Cox v. Slama, 355 N.W.2d 401, 403 (Minn. 1984)
(holding that "counsel must be appointed for indigent defendants facing
civil contempt for failure to pay child support"); Allen v. Sheriff of
Lancaster County, 511 N.W.2d 125, 127 (Neb. 1994) (noting that "court
has held that under the U.S. Constitution, an indigent litigant has a
right to appointed counsel when, as a result of the litigation, he may
be deprived of his physical liberty"); McBride v. McBride, 334 N.C.
124, 431 S.E.2d 14, 19 (N.C. 1993) (holding that "principles of due
process embodied in the Fourteenth Amendment require that, absent the
appointment of counsel, indigent civil contemnors may not be
incarcerated for failure to pay child support arrearages"); State ex
rel. Gullickson v. Gruchalla, 467 N.W.2d 451, 453 (N.D. 1991) (holding
"that indigent defendants in civil contempt proceedings should be
granted counsel at state expense when, if they lose, they will likely
be deprived of their physical liberty"); Tetro v. Tetro, 86 Wn.2d 252,
544 P.2d 17, 19 (Wash. 1975) (holding that "whatever due process
requires when other types of deprivation of liberty are potentially
involved, when a judicial proceeding may result in the defendant being
physically incarcerated, counsel is required regardless of whether the
trial is otherwise 'criminal' in nature"); Smoot v. Dingess, 160 W. Va.
558, 236 S.E.2d 468, 471 (W. Va. 1977) ("Regardless of whether a
contempt proceeding is civil or criminal, a defendant has the right to
be represented by counsel, and if he is indigent counsel must be
appointed to represent him."); State v. Pultz, 206 Wis. 2d 112, 556
N.W.2d 708, 715 (Wis. 1996) (holding that "a defendant in a remedial
contempt proceeding, if indigent, is entitled to appointed counsel at
public expense").


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*28]

When an indigent litigant is forced to proceed at an ability-to-pay
hearing without counsel, there is a high risk of an erroneous
determination and wrongful incarceration. However seemingly simple
support enforcement proceedings may be for a judge or lawyer, gathering
documentary evidence, presenting testimony, marshalling legal
arguments, and articulating a defense are probably awesome and perhaps
insuperable undertakings to the uninitiated layperson. The task is that
much more difficult when the indigent must defend himself after he has
already been deprived of his freedom. See, e.g., Walker, supra, 768
F.2d at 1184 ("The issues in a proceeding for wilful nonsupport are not
so straightforward that counsel will not be of assistance in insuring
the accuracy and fairness of the proceeding. This is particularly true
where the petitioner is indigent and is attempting to prove his
indigency as a defense to wilfulness.")

Defendants argue that plaintiffs possessed the keys to the jailhouse
door. That makes sense only if one accepts the notion that plaintiffs
had the wherewithal to pay their child support arrears. It is the
purpose of the child support hearing to establish [*29] that very
point. It is at that hearing that 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
impecunious circumstances. See Powell v. Alabama, 287 U.S. 45, 69, 53
S. Ct. 55, 64, 77 L. Ed. 158, 170 (1932) ("Even the intelligent and
educated layman has small and sometimes no skill in the science of law
.. . . He lacks both the skill and knowledge adequately to prepare his
defense, even though he had a perfect one.")

We reject the Appellate Division's contentions that "a judge can
adequately protect an [indigent parent] by conducting a thorough and
searching ability-to-pay hearing" or that the "solution to plaintiffs'
perceived problem can be found readily through judicial education and
training, and need not implicate the right to appointed counsel."
However well intentioned and scrupulously fair a judge may be, when a
litigant is threatened with the loss of his liberty, process is what
matters. A person of impoverished means caught within the tangle of our
criminal or civil justice [*30] system and subject to a jail sentence
is best protected by an adversarial hearing with the assistance of a
trained and experienced lawyer. Although requiring counsel may
complicate the procedures pertaining to enforcement of court orders, it
protects important constitutional values, including the fairness of our
civil justice system.

Accordingly, we conclude that 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. At such hearings, courts must advise litigants in jeopardy of
losing their freedom of their right to counsel and, if indigent, of
their right to appointed counsel. n4

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n4 Although not addressed by the parties, § 1983 may not have been the
proper vehicle for seeking injunctive relief. Section 1983 provides
"that in any action brought against a judicial officer for an act or
omission taken in such officer's judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable." 42 U.S.C.A. § 1983 (emphasis
added). The plain language of the statute might suggest that plaintiffs
were not allowed to seek injunctive relief. Defendants, however, did
not object to plaintiffs' suit on that ground. The issues raised in
plaintiffs' complaint have been fully briefed, argued, and are ripe for
our determination. Moreover, we are deciding this case not only on the
basis of the Federal Constitution, but also on an independent state
ground. To avoid unnecessarily delaying the adjudication of an issue of
paramount constitutional importance, we address not only the merits of
plaintiffs' constitutional claim, but the remedies as well. See Kelley
v. Curtiss, 16 N.J. 265, 269-70, 108 A.2d 431 (1954).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*31]

C.

We reach the same result under our State Constitution. Article I,
Paragraph 1 of the New Jersey Constitution provides: "All persons are
by nature free and independent, and have certain natural and
unalienable rights, among which are those of enjoying and defending
life and liberty, of acquiring, possessing, and protecting property,
and of pursuing and obtaining safety and happiness." N.J. Const. art.
I, P1. Although the text of the New Jersey Constitution does not
contain a due process clause in language comparable to the Fifth and
Fourteenth Amendments of the Federal Constitution, we have found that
the right to due process of law is implicit in Article I, Paragraph 1.
State v. Feaster, 184 N.J. 235, 250 n.3, 877 A.2d 229 (2005); see also
Greenberg v. Kimmelman, 99 N.J. 552, 568, 494 A.2d 294 (1985) ("Article
1, paragraph 1, like the fourteenth amendment, seeks to protect against
injustice and against the unequal treatment of those who should be
treated alike. To this extent, article 1 safeguards values like those
encompassed by the principles of due process and equal protection.").
n5

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n5 Generally, the right to appointed counsel for indigent litigants has
received more expansive protection under our state law than federal
law. Compare Lassiter, supra, 452 U.S at 31-32, 101 S. Ct. at 2162, 68
L. Ed. 2d at 652 (declining to adopt holding that "Constitution
requires . . . appointment of counsel [to indigents] in every parental
termination proceeding"), with Crist v. N.J. Div. of Youth & Family
Servs., 135 N.J. Super. 573, 575, 343 A.2d 815 (App. Div. 1975) (per
curiam) (affirming decision that courts "should assign counsel without
cost to indigent parents who are subjected to proceedings which may
result in either temporary loss of custody or permanent termination of
their parental rights"); and compare Scott v. Illinois, 440 U.S. 367,
369, 99 S. Ct. 1158, 1160, 59 L. Ed. 2d 383, 386 (1979) (holding that
defendant charged with misdemeanor has no constitutional right to
counsel where no sentence of imprisonment is imposed), with State v.
Hrycak, 184 N.J. 351, 362, 877 A.2d 1209 (2005) (providing for right to
counsel in DWI cases, regardless of whether sentence of imprisonment is
imposed, because defendant "faces a 'consequence of magnitude'"
(quoting Rodriguez v. Rosenblatt, 58 N.J. 281, 295, 277 A.2d 216
(1971))).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*32]

Under the due process guarantee of the New Jersey Constitution, the
right to counsel attaches even to proceedings in which a litigant is
not facing incarceration. For example, under our State Constitution,
convicted sex offenders must be notified of their right to retain
counsel and, if indigent, appointed counsel at Megan's Law tier
classification hearings. Doe v. Poritz, 142 N.J. 1, 30-31, 106, 662
A.2d 367 (1995). At those hearings, the court determines the scope of
community notification of such information as a sex offender's name,
and home and work address, by assigning the offender to one of three
tiers. Id. at 23-25, 662 A.2d 367. Although sex offenders are subject
only to expanded stigmatization of their reputations in their
communities depending on their tier classification, they have a due
process "liberty interest" protected under Article I, Paragraph 1,
triggering the right to counsel. Id. at 30-31, 104-06, 662 A.2d 367.

In addition, without referencing our State Constitution, we held in
Rodriguez v. Rosenblatt that "as a matter of simple justice, no
indigent defendant should be subjected to a conviction entailing
imprisonment in fact or other [*33] consequence of magnitude without
first having had due and fair opportunity to have counsel assigned
without cost." 58 N.J. 281, 295, 277 A.2d 216 (1971); see also R.
7:3-2(b) ("If the court is satisfied that the defendant is indigent and
that the defendant faces a consequence of magnitude . . . the court
shall assign the municipal public defender to represent the
defendant.") In Rodriguez, we considered "the substantial loss of
driving privileges" as one type of "serious consequence" that would
warrant assigning counsel to an indigent defendant. 58 N.J. at 295, 277
A.2d 216. We acknowledged "the importance of counsel in an accusatorial
system," underscoring that in a case with "any complexities, the
untrained defendant is in no position to defend himself," and that in a
case without "complexities, his lack of legal representation may place
him at a disadvantage." Rodriguez, supra, 58 N.J. at 295, 277 A.2d 216.
Relying on the principle of "simple justice" enunciated in Rodriguez,
the Appellate Division in Crist v. New Jersey Division of Youth &
Family Services ruled that the temporary loss or permanent termination
of an indigent [*34] parent's rights to his or her child in a judicial
proceeding is a consequence of magnitude requiring the assignment of
counsel. 135 N.J. Super. 573, 575, 343 A.2d 815 (App. Div. 1975); see
also State v. Hermanns, 278 N.J. Super. 19, 29, 650 A.2d 360 (App. Div.
1994) (holding that significant monetary sanctions "give rise to the
right to counsel under Rodriguez").

We also have held that due process guarantees the assignment of counsel
to indigents in involuntary civil commitment proceedings. In re S.L.,
94 N.J. 128, 136-37, 462 A.2d 1252 (1983); see also N.J.S.A. 30:4-27.11
(affording patient involuntarily committed to psychiatric facility who
is "unable to afford an attorney, the right to be provided with an
attorney paid for by the appropriate government agency"). Cf.
Perlmutter v. DeRowe, 58 N.J. 5, 17, 274 A.2d 283 (1971) (observing
that civil arrest pursuant to writ of capias ad respondendum "is
substantially analogous to arrest under a criminal complaint and a
defendant should have all the same procedural rights and protections as
if he were arrested on a criminal charge for the same fraud [*35] upon
which the civil action and the [capias ad respondendum] are based").

We can find no principled reason why an indigent facing loss of motor
vehicle privileges or a substantial fine in municipal court,
termination of parental rights in family court, or tier classification
in a Megan's Law proceeding would be entitled to counsel under state
law but an indigent facing jail for allegedly willfully refusing to pay
a child support judgment would not. Moreover, the indigent subject to
incarceration for failure to pay support can hardly be distinguished
from the indigent conferred with the right to counsel in an involuntary
civil commitment hearing. We are persuaded that the due process
guarantee of the New Jersey Constitution compels the assignment of
counsel to indigent parents who are at risk of incarceration at child
support enforcement hearings.

III.

A.

We now consider plaintiffs' contention that because they are prevailing
parties under 42 U.S.C.A. § 1988(b), they are entitled to recover
their reasonable attorney's fees and costs. Section 1988(b) provides
that
the court, in its discretion, may allow the prevailing party [in a §
1983 [*36] action], other than the United States, a reasonable
attorney's fee as part of the costs, except that in any action brought
against a judicial officer for an act or omission taken in such
officer's judicial capacity such officer shall not be held liable for
any costs, including attorney's fees, unless such action was clearly in
excess of such officer's jurisdiction.I

[42 U.S.C.A. § 1988(b) (emphasis added).]


As earlier determined, indigent parents at child support enforcement
hearings must be advised of their right to appointed counsel. It is
undisputed that Judges Council and Forrester omitted to inform
plaintiffs of that right. The question remains whether Judges Council
and Forrester were acting within their judicial capacities and
therefore are shielded by judicial immunity.

Judicial immunity has been fashioned "for the benefit of the public,
whose interest it is that the judges should be at liberty to exercise
their functions with independence and without fear of consequences."
Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1218, 18 L. Ed. 2d
288, 294 (1967) (internal quotation marks omitted). "If judges were
[*37] personally liable for erroneous decisions, the resulting
avalanche of suits, most of them frivolous but vexatious, would provide
powerful incentives for judges to avoid rendering decisions likely to
provoke such suits." Forrester v. White, 484 U.S. 219, 226-27, 108 S.
Ct. 538, 544, 98 L. Ed. 2d 555, 565 (1988). Accordingly, "a judge will
not be deprived of immunity because the action he took was in error,
was done maliciously, or was in excess of his authority; rather, he
will be subject to liability only when he has acted in the 'clear
absence of all jurisdiction.'" Stump v. Sparkman, 435 U.S. 349, 356-57,
98 S. Ct. 1099, 1105, 55 L. Ed. 2d 331, 339 (1978) (quoting Bradley v.
Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L. Ed. 646, 651 (1872)).

"The factors determining whether an act by a judge is a 'judicial' one
relate to the nature of the act itself, i.e., whether it is a function
normally performed by a judge, and to the expectations of the parties,
i.e., whether they dealt with the judge in his judicial capacity." Id.
at 362, 98 S. Ct. at 1107, 55 L. Ed. 2d at 342. In presiding over
plaintiffs' enforcement proceedings, [*38] both defendants were acting
within their jurisdiction and performing functions normally performed
by judges, despite their failure to inform plaintiffs of their right to
appointed counsel.

Plaintiffs do not argue that Judges Council and Forrester were not
acting in their judicial capacities when they presided at plaintiffs'
ability-to-pay hearings. Rather, plaintiffs claim that it is "the
strong policy of New Jersey that prevailing § 1983 plaintiffs should
be awarded counsel fees and costs." Contrary to plaintiffs' suggestion,
New Jersey courts must interpret federal statutes, such as § 1988(b),
consistent with the intent of Congress, not with plaintiffs' conception
of state policy. Accordingly, Judges Council and Forrester are clothed
with judicial immunity.

We also find that plaintiffs do not have a § 1983 cause of action
against Chief Justice Poritz and Director Williams. Section 1983
provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction [*39] thereof to
the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured . . .

[42 U.S.C.A. § 1983 (emphasis added).]


Neither Chief Justice Poritz nor Director Williams "caused [plaintiffs]
to be subjected" to the deprivation of their right to appointed
counsel. Indeed, neither committed or omitted any act--either in their
judicial or administrative capacities--that can properly be found to
trigger liability under § 1983.

Before the commencement of this lawsuit, no rule of court or
administrative directive intimated that Superior Court judges should
not appoint counsel for indigent parents at child support enforcement
hearings. The complaint suggests that Chief Justice Poritz should have
adopted a rule or Director Williams should have issued a directive that
anticipated the constitutional issue before us and provided counsel for
indigent parents at such hearings. Court rules and directives cannot
anticipate every constitutional issue that may be raised outside the
context of a contested case. Constitutional issues are ordinarily
raised, litigated, and resolved [*40] in cases before Superior Court
judges, and then are subject to appellate review. The Chief Justice and
Administrative Director of the Courts cannot be held liable for not
forecasting those issues in advance of a party raising them in a
contested case. On that basis, Chief Justice Poritz and Director
Williams did not violate plaintiffs' constitutional right to counsel
under § 1983.

Even if we were to accept plaintiffs' claim that those defendants had
the obligation of foreseeing the constitutional issue and adopting an
anticipatory remedy by way of a court rule or directive, we would find
that the failure to do so was a legislative act shielded by legislative
immunity. Article VI, Section 2, Paragraph 3 of the New Jersey
Constitution invests the Supreme Court with the authority to make rules
for the "practice and procedure" of the courts. Court rules serve the
purpose of guiding judges and lawyers in the basic protocols and
procedures that apply in our judicial system. The promulgation of a
court rule is a legislative act. See Supreme Court of Virginia v.
Consumers Union of United States, Inc., 446 U.S. 719, 731, 734, 100 S.
Ct. 1967, 1974, 1976, 64 L. Ed. 2d 641, 653, 655 (1980). [*41] Those
who draft and promulgate such rules, or omit to do so, are protected by
legislative immunity. See id. at 731-34, 100 S. Ct. at 1974-76, 64 L.
Ed. 2d at 653-55 (granting legislative immunity in § 1983 action to
Virginia Supreme Court exercising "legislative power" in promulgating
set of rules governing Virginia State Bar); see also Abick v. Michigan,
803 F.2d 874, 877-78 (6th Cir. 1986) (holding that justices of Michigan
Supreme Court "act in their legislative capacity" in promulgating court
rules of practice and procedure). Thus, even if Chief Justice Poritz
and Director Williams violated plaintiffs' right to counsel by failing
to promulgate a court rule or issue an administrative directive, they
would be absolutely immune from any liability.

B.

For the first time, plaintiffs argue before this Court that they are
entitled to counsel fees under the New Jersey Civil Rights Act,
N.J.S.A. 10:6-1 and -2. That Act went into effect on September 10,
2004, the day that the Appellate Division rendered its opinion in this
case. A cause of action under N.J.S.A. 10:6-2 did not exist when the
complaint [*42] was filed or when argument was heard before the
Appellate Division. Under such circumstances, we decline to address
whether plaintiffs are entitled to counsel fees under N.J.S.A. 10:6-2.

IV.

For the reasons expressed, the complaint against defendants Chief
Justice Poritz and Director Williams must be dismissed because they did
nothing to cause plaintiffs to be subjected to a violation of their
constitutional rights. Judges Council and Forrester are entitled to
judicial immunity from any claim for counsel fees. We reverse the
Appellate Division and enter judgment in favor of plaintiffs to the
following extent.

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, [*43] but, in any event, within seventy-two hours of
their arrest.

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. See, e.g., N.J.S.A. 2B:24-7 (providing for representation
of indigent municipal defendants charged with crimes specified in
N.J.S.A. 2B:12-18 or likely to be "subject to imprisonment or other
consequence of magnitude"); N.J.S.A. 30:4C-15.4(a) (providing in
termination of parental rights cases that if indigent parent "requests
counsel, the court shall appoint the Office of the Public Defender to
represent the parent"). We trust that the [*44] Legislature will
address the current issue as well.

We refer to the Supreme Court Family Practice Committee consideration
of appropriate rules and procedures for the implementation of this
decision.

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.