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A suit to force New Jersey to appoint lawyers for indigent parents before jailing them for skipped child support belongs in state court, the 3rd U.S. Circuit Court of Appeals ruled on Jan. 17. The court found that the trial judge properly abstained under Younger v. Harris, 401 U.S. 37 (1971), by which a federal court can decline jurisdiction when it would interfere with an ongoing state-court proceeding involving an important state interest and when that proceeding affords an opportunity to raise the federal claim. Though the plaintiffs had not been scheduled to appear in state court, it is possible they could be called to do so in an enforcement proceeding, wrote Judge Anthony Scirica, joined by Judges Marjorie Rendell and John Noonan Jr. “For purposes of Younger, such a comprehensive and fluid system designed to address the ever-present and ever-changing realities of child support orders must be viewed as a whole, rather than as individual, discrete hearings,” the court said in Anthony v. Council, 01-2735. The plaintiffs also had failed to show that their claims could not be fully heard in state court, the panel found. “Child support obligors are free to raise their issues at any time at any child support hearing or contempt hearing” and to appeal an adverse decision, Scirica said. Nor did the plaintiffs show bad faith, harassment or other extraordinary circumstances that would render abstention inappropriate, he continued. The ruling affirms the decision of federal Judge Garrett Brown Jr. of the District of New Jersey in the class action, civil rights suit that accuses the state of violating due process by not appointing counsel. As a result of the appeals ruling, plaintiffs’ counsel David Perry Davis said he plans to refile the suit this week in Mercer County Superior Court. Davis says he will not ask for a rehearing because he does not want to lose more time on top of what he has spent litigating the issue in federal court. He will also file an order to show cause, he says. Davis, a Princeton solo, argued that New Jersey courts would not be hospitable to the plaintiffs’ claims, based on Scalchi v. Scalchi, 347 N.J. Super. 493 (2002), which held that New Jersey law does not mandate assigned counsel for indigents in child support cases. The 3rd Circuit answered that Scalchi does not demonstrate that New Jersey courts are resistant to adjudicating indigent parents’ constitutional rights. “We are confident that any constitutional challenge to state court practice would receive proper consideration by the New Jersey courts,” wrote Scirica. While unhappy with the 3rd Circuit’s decision, Davis is heartened by the “proper consideration” comment and the last two sentences of the opinion, which he sees as supportive of plaintiffs’ claims on the merits. “We do not intend to minimize the importance of the rights asserted. But we believe this constitutional challenge should be raised in the New Jersey courts,” Scirica wrote in closing. Though Davis expects to lose at the trial level and probably in the Appellate Division after an emergent appeal, he hopes the Supreme Court will hear the issue in tandem with another appeal on the right to counsel to be heard this term. In that case, In re Civil Commitment of D.L., 351 N.J. Super. 77, the Appellate Division held that convicted sex offenders who are civilly committed at the end of their jail terms under the Sexually Violent Predator Act have a right to appellate counsel. Davis already has one state court victory under his belt on behalf of child support obligors. His suit on behalf of parents jailed for nonpayment of support without a hearing on their ability to pay, Leonard v. Blackburn, MER-L-3761-01, resulted in a Jan. 23, 2002, memorandum from Richard Williams, acting administrative director of the courts, directing assignment judges to hold hearings within 72 hours. Williams is a defendant in Anthony, along with Chief Justice Deborah Poritz, and Mercer Family Part Judges Gerald Council and F. Lee Forrester. The named plaintiffs, Anne Pasqua, Ray Tolbert and Michel Anthony, allege that their nonpayment of court-ordered child support landed them in jail for contempt and that their inability to pay places them at continued risk. They contend that they cannot afford a lawyer and so the state must provide one under Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981), and Rodriguez. v. Rosenblatt, 58 N.J. 281 (1971), rulings that recognize a right to counsel for indigents facing possible imprisonment. The plaintiffs allege that Council and Forrester violated the 14th, 5th and 6th Amendments by failing to provide counsel or to inform them of their right to counsel. The defense lawyer in Anthony, Deputy Attorney General Barbara Stoop, did not return a call seeking comment.

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