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The New Jersey Supreme Court heard arguments recently on whether indigent child support obligors who face jail for nonpayment are entitled to court-appointed counsel. But judging by their questions, the justices were already past the issue of whether — and more interested in how to ensure such people are represented. The plaintiffs in Pasqua v. Council, A-131-04, all Mercer County, N.J., residents jailed for not making support payments, sued the court system, claiming state and federal constitutional rights violations. Assignment Judge Linda Feinberg ruled in their favor in early 2003, saying no obligor could be incarcerated without a lawyer. In September 2004, the Appellate Division reversed, prompting their appeal. In the interim, in March 2004, Acting Administrative Director of the Courts Richard Williams issued Directive No. 2-04, titled, “Use of Warrants and Incarceration in the Enforcement of Child Support Orders.” It set forth statewide standards and procedures recommended by the Conference of Family Presiding Judges and approved by the Judicial Council — among them that incarceration is generally not an option if counsel is unavailable but is an option if there is evidence the obligor can pay support but chooses not to do so. The directive’s indigency-review provisions were stricken after the Appellate Division reversal, and two weeks ago, plaintiffs lawyer David Perry Davis argued for reinstatement of Feinberg’s original ruling. Justice Barry Albin asked Davis how long one of the obligors was locked up. “Seventy-three days,” said Davis. “What?” exclaimed Albin. “Seventy-three days? That’s outrageous.” Justice James Zazzali asked where the courts were going to find all the lawyers. Davis suggested enlisting the public defender’s office and calling on the private bar only as the need arose. He said the solution should not be to assign cases randomly — lest an indigent obligor finds himself represented by a “brilliant” bond attorney who is “incompetent” on matters of child support enforcement. Justice Virginia Long was not convinced, saying that such issues are “not particularly complex.” “The cases are ones that lawyers should be able to handle with relative ease,” she said. “I have seen them botched, your honor,” Davis replied. Deputy Attorney General Patrick DeAlmeida said there was no need for the Court to create a pool of lawyers to represent indigent child support obligors. “The keys to the jailhouse are in the obligors’ hands,” he said. DeAlmeida suggested that judges themselves could determine fairly whether an obligor is truly indigent and not able to pay or is secreting assets. “Our judges are just so good that they [indigent obligors] don’t need attorneys,” a skeptical Zazzali teased. DeAlmeida said judges can ensure fairness, if given proper training and guidelines. That did not satisfy Zazzali. “The judges are well trained, but the litigants are not,” he said. “They are the poorest of the poor. Many are uneducated. Many are impaired. They can’t do the job. They need someone advocating for them.” DeAlmeida said mechanisms are in place for judges to appoint counsel if needed. “In a perfect world, every indigent person would get counsel. But we don’t live in a perfect world.” David Rubin, appearing on behalf of the amicus State Bar Association, argued only one issue: the Bar’s worry about additional mandatory pro bono service. “We’re here to register our long-standing opposition to the pro bono solution to the state’s own failure to solve a constitutional problem,” said the Metuchen solo. “If there are no resources [to retain counsel], then the hearing should not go forward. Period. End of story.” Chief Justice Deborah Poritz, who is among the named defendants, recused herself from the case.

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