Mercer County Superior Court Assignment Judge Mary Jacobson/photo by Carmen Natale Mercer County Superior Court Assignment Judge Mary Jacobson/photo by Carmen Natale

A New Jersey judge has ruled the state violates procedural due process rights of parents when it suspends driver’s licenses for nonpayment of child support without providing advance notice of the action and an opportunity to be heard.

The state Probation Department, Department of Human Services and Motor Vehicle Commission have been ordered to implement new procedures that would give advance notice of a suspension to a parent who faces loss of driving privileges due to unpaid child support. The agencies are ordered to give parents facing such suspensions the opportunity to be heard and to provide legal counsel to parents who are indigent.

Mercer County Assignment Judge Mary Jacobson ordered the changes in a 187-page ruling Dec. 7 in Kavadas v. Martinez. The case was filed on behalf of parents who owe child support and who claim their due process rights are violated under the current system, where the parent is not notified their license is suspended until after the fact.

The practice at issue stems from a 1996 federal law, the Personal Responsibility and Work Opportunity Reconciliation Act, which requires states to toughen their child support procedures in order to qualify for certain types of federal aid.

Hopewell attorney David Perry Davis filed the suit in May 2015, claiming that automatic suspensions of licenses for parents who are behind on child support are unconstitutional.

Davis claimed that New Jersey wrongly concluded that the federal law required it to automatically revoke licenses in such circumstances. “Somehow, the state of New Jersey interpreted ‘may’ as ‘shall.’ They need to do it on a case-by-case basis,” he said in a 2015 interview. The MVC had asserted that it is merely following the law as written.

That law requires states to have the authority to withhold, suspend or restrict the use of driver’s licenses, professional and occupational licenses, and recreational licenses of people who owe past-due support or fail to comply with court orders regarding child support.

Davis asserted that the state suspends more than 20,000 licenses per year for nonpayment of child support, and that the threat of suspension will not cause parents to pay child support on a timely basis.

Jacobson cited data from the federal government showing that New Jersey’s child support collection rate was 65.4 percent in 2014, which was the 16th highest rate among the states, and 67.5 percent in 2017, which ranked 13th nationwide. Meanwhile, the cost-effectiveness of New Jersey’s child support enforcement expenses ranked 39th among the states in both 2014 and 2017.

Davis said that obligors would have the opportunity to demonstrate at their hearings that they failed to keep up with payments for legitimate reasons, including failure to find a job. He cited a federal report which found that in 2004, 73 percent of unpaid child support is owed by parents who report earnings of less than $10,000 per year.

“I’m sure New Jersey’s collection rate [for child support] is going to go up” as a result of the ruling, Davis said. “New Jersey’s collection rate is abysmal because of these unthinking, hit-it-with-a-hammer types of solutions,” he said.

Davis filed the Kavadas case after scoring a victory before the state Supreme Court in 2006 with Pasqua v. Council. There, the Supreme Court ruled that poor people cannot be sent to jail for nonpayment of child support without being provided with a lawyer.

Jacobson’s ruling granted the plaintiffs’ motions for partial summary judgment on their procedural due process claims, directing defendants to provide advance notice of driver’s license suspensions, a date certain when the license will be suspended if no action is taken, and an opportunity to be heard. She granted in part their motion claiming a right to counsel, ordering the Administrative Office of the Courts to provide counsel to any indigent child support obligor at a hearing where a driver’s license may be suspended. But she ruled that no such right to counsel should be extended if suspension of a driver’s license is not among the potential remedies.

Jacobson also granted the defendants’ motion to dismiss one of the five plaintiffs, Alisha Grabowski, for lack of standing. As a resident of Pennsylvania, she did not experience the suspension of a New Jersey driver’s license, unlike the other members of the putative class, Jacobson said.

Jacobson conducted a hearing on cross-motions for summary judgment in August 2016, and the ruling on those motions was pending for more than two years, prompting complaints from Davis in January to equate the long wait with a de facto dismissal of the case.

The judge conceded to Davis in a letter Jan. 9 that her ruling was taking longer than expected.

“The complexity and importance of the many issues you have brought before the court in the above referenced lawsuit require careful consideration. I regret that I have not completed my review of the pending motions, but I am not able to provide you with a date certain by which the decisions on the motions will be rendered,” Jacobson wrote last January in response to Davis’s questions about when the ruling would be finished.

Deputy Attorney General Gregory Sullivan represented the state defendants. A spokesman for the Attorney General’s Office, Lee Moore, declined to comment on the ruling.