SUPREME COURT OF NEW JERSEY C-808 September Term 2012 072186
D.N.,
Plaintiff-Petitioner,
v.
K.M.,
Defendant-Respondent. ------------------------------------------- K.M.,
Plaintiff-Respondent,
Defendant-Petitioner.
PER CURIAM
D.N. filed a petition for certification in connection with
the Appellate Division judgment that is reported at D.N. v.
K.M., 429 N.J. Super. 592 (App. Div. 2013). Consistent with
current law, the Appellate Division concluded that “the
protections of due process do not require the appointment of
counsel for indigents presenting or defending a private party’s
civil domestic violence action.” Id. at 606. The dissent
recommends that the Court grant certification in this case and
examine whether counsel should be appointed for indigent
1 citizens in civil proceedings under the Prevention of Domestic
Violence Act (Act), N.J.S.A. 2C:25-17 to -35.
The Act itself does not authorize appointment of counsel
for the parties in a domestic violence action. In that regard,
New Jersey is not alone. Only one state provides for
appointment of counsel for both parties under comparable civil
domestic violence laws. See N.Y. CLS Fam. Ct. Act 262(a)(ii).
Thus, without any statutory authority, a directive from this
Court requiring appointment of counsel would rest on
constitutional grounds.
To be sure, such a ruling would affect thousands of cases
annually. For the last court year alone, from July 2012 through
June 2013, there were approximately 15,800 hearings for final
restraining orders, according to the Administrative Office of
the Courts (AOC). The AOC estimates that the vast majority of
plaintiffs and defendants in those hearings were not represented
by counsel. By way of comparison, there were a total of about
1200 Madden1 appointments for the year, and roughly two-thirds of
them were for contempt proceedings in domestic violence cases.
In any event, this case is not a good vehicle to embark on
a constitutional analysis of the issue presented because, based
on the record before us, petitioner did not assert that she was
1 Madden v. Delran, 126 N.J. 591 (1992) (upholding constitutionality of system of pro bono assignment of private counsel for indigent defendants). 2 indigent or ask the trial court to appoint counsel to represent
her. In a similar context in 2009, the Appellate Division
declined to consider the right to appointment of counsel in
connection with a final restraining order entered under the Act.
Crespo v. Crespo, 408 N.J. Super. 25, 45 (App. Div. 2009),
aff’d, 201 N.J. 207 (2010). The panel observed that “[t]he
record does not reflect that defendant ever sought the
appointment of counsel prior to or during the adjudication of
this domestic violence matter. Accordingly, in the present
setting, the issue is purely academic.” Ibid. The same is true
here.
The petition for certification is denied. See R. 2:12-4.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in this per curiam opinion. JUSTICE ALBIN filed a separate, dissenting opinion.
3 SUPREME COURT OF NEW JERSEY
C-808 September Term 2012
072186
Defendant-Respondent.
-----------------------------------------------
JUSTICE ALBIN, dissenting.
1 Today, my colleagues refuse to hear a case that raises
significant questions about the fairness of our civil justice
system -- a case that meets every criterion for the grant of
certification under our Court Rules. See R. 2:12-4. D.N. has
filed a petition for review of D.N. v. K.M., 429 N.J. Super. 592
(App. Div. 2013), in which the Appellate Division held that an
indigent defendant is not entitled to appointed counsel when
prosecuted for violations of the Prevention of Domestic Violence
Act (“Domestic Violence Act”), N.J.S.A. 2C:25-17 to -35. That
decision cuts against the grain of a long line of jurisprudence
in New Jersey guaranteeing the right to counsel to impoverished
defendants facing consequences of magnitude, even in civil
cases. The Appellate Division ruled that a poor defendant has
no right to appointed counsel in a domestic violence case
despite the enormity of consequences that flow from a violation
of the Domestic Violence Act. Thus, a defendant mother, who is
found to have violated the Act, could lose custody of her
children and possession of her house; could face crushing
financial penalties and placement of her name on an offender
registry, jeopardizing her ability to secure employment, credit
and housing; and could forfeit her right to possess a firearm.
The loss of these rights and imposition of these penalties may
occur on an unlevel playing field where an inarticulate
defendant, ignorant of the law and courtroom procedures, is
2 prosecuted by a well-trained, skilled, and experienced attorney
representing the opposing party.
The issue before the Court is not “purely academic” as my
colleagues contend. D.N. v. K.M., __ N.J. __, __ (slip op. at
3) (quoting Crespo v. Crespo, 408 N.J. Super. 25, 45 (App. Div.
2009), aff’d o.b., 201 N.J. 207 (2010)). My colleagues rely on
Crespo, supra, 408 N.J. Super. at 45, a case in which the
Appellate Division declined to address the issue of the right to
appointed counsel in a domestic violence case. Unlike Crespo,
here the Appellate Division decided the issue, and its ruling
stands as the law of the State until this Court says otherwise.
My colleagues cannot expect that an uncounseled defendant,
such as D.N., would know to assert her right to appointed
counsel in a domestic violence case. It was the obligation of
the Family Court to advise her of that right, which did not
happen here. Importantly, D.N. argued on appeal (when
represented by counsel) that she was indigent and had the right
to appointed counsel, and the Appellate Division addressed the
issue in a published decision. I do not understand how my
colleagues can say that “this case is not a good vehicle to
embark on a constitutional analysis of the issue presented,”
D.N., supra, __ N.J. at __ (slip op. at 2), when the issue was
presented to and decided by the Appellate Division.
3 Last year marked the fiftieth anniversary of the landmark
ruling in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9
L. Ed. 2d 799 (1963), a case trumpeting the right to counsel for
the indigent in criminal cases. After Gideon, this Court took a
giant step forward -- far ahead of other courts in the nation --
to secure for the poor the opportunity for equal justice in
courtrooms throughout this State. See Rodriguez v. Rosenblatt,
58 N.J. 281 (1971). The right to counsel is an essential
attribute of a fair trial. The denial of this petition will
surely disappoint those who expect this Court to remain at the
forefront of ensuring a fair adversarial process for the poor
who face serious consequences of magnitude in civil cases.
For the reasons I have given and for those that follow, I
respectfully dissent.
I.
In Rodriguez, supra, this Court held that “as a matter of simple
Free access — add to your briefcase to read the full text and ask questions with AI
SUPREME COURT OF NEW JERSEY C-808 September Term 2012 072186
D.N.,
Plaintiff-Petitioner,
v.
K.M.,
Defendant-Respondent. ------------------------------------------- K.M.,
Plaintiff-Respondent,
Defendant-Petitioner.
PER CURIAM
D.N. filed a petition for certification in connection with
the Appellate Division judgment that is reported at D.N. v.
K.M., 429 N.J. Super. 592 (App. Div. 2013). Consistent with
current law, the Appellate Division concluded that “the
protections of due process do not require the appointment of
counsel for indigents presenting or defending a private party’s
civil domestic violence action.” Id. at 606. The dissent
recommends that the Court grant certification in this case and
examine whether counsel should be appointed for indigent
1 citizens in civil proceedings under the Prevention of Domestic
Violence Act (Act), N.J.S.A. 2C:25-17 to -35.
The Act itself does not authorize appointment of counsel
for the parties in a domestic violence action. In that regard,
New Jersey is not alone. Only one state provides for
appointment of counsel for both parties under comparable civil
domestic violence laws. See N.Y. CLS Fam. Ct. Act 262(a)(ii).
Thus, without any statutory authority, a directive from this
Court requiring appointment of counsel would rest on
constitutional grounds.
To be sure, such a ruling would affect thousands of cases
annually. For the last court year alone, from July 2012 through
June 2013, there were approximately 15,800 hearings for final
restraining orders, according to the Administrative Office of
the Courts (AOC). The AOC estimates that the vast majority of
plaintiffs and defendants in those hearings were not represented
by counsel. By way of comparison, there were a total of about
1200 Madden1 appointments for the year, and roughly two-thirds of
them were for contempt proceedings in domestic violence cases.
In any event, this case is not a good vehicle to embark on
a constitutional analysis of the issue presented because, based
on the record before us, petitioner did not assert that she was
1 Madden v. Delran, 126 N.J. 591 (1992) (upholding constitutionality of system of pro bono assignment of private counsel for indigent defendants). 2 indigent or ask the trial court to appoint counsel to represent
her. In a similar context in 2009, the Appellate Division
declined to consider the right to appointment of counsel in
connection with a final restraining order entered under the Act.
Crespo v. Crespo, 408 N.J. Super. 25, 45 (App. Div. 2009),
aff’d, 201 N.J. 207 (2010). The panel observed that “[t]he
record does not reflect that defendant ever sought the
appointment of counsel prior to or during the adjudication of
this domestic violence matter. Accordingly, in the present
setting, the issue is purely academic.” Ibid. The same is true
here.
The petition for certification is denied. See R. 2:12-4.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in this per curiam opinion. JUSTICE ALBIN filed a separate, dissenting opinion.
3 SUPREME COURT OF NEW JERSEY
C-808 September Term 2012
072186
Defendant-Respondent.
-----------------------------------------------
JUSTICE ALBIN, dissenting.
1 Today, my colleagues refuse to hear a case that raises
significant questions about the fairness of our civil justice
system -- a case that meets every criterion for the grant of
certification under our Court Rules. See R. 2:12-4. D.N. has
filed a petition for review of D.N. v. K.M., 429 N.J. Super. 592
(App. Div. 2013), in which the Appellate Division held that an
indigent defendant is not entitled to appointed counsel when
prosecuted for violations of the Prevention of Domestic Violence
Act (“Domestic Violence Act”), N.J.S.A. 2C:25-17 to -35. That
decision cuts against the grain of a long line of jurisprudence
in New Jersey guaranteeing the right to counsel to impoverished
defendants facing consequences of magnitude, even in civil
cases. The Appellate Division ruled that a poor defendant has
no right to appointed counsel in a domestic violence case
despite the enormity of consequences that flow from a violation
of the Domestic Violence Act. Thus, a defendant mother, who is
found to have violated the Act, could lose custody of her
children and possession of her house; could face crushing
financial penalties and placement of her name on an offender
registry, jeopardizing her ability to secure employment, credit
and housing; and could forfeit her right to possess a firearm.
The loss of these rights and imposition of these penalties may
occur on an unlevel playing field where an inarticulate
defendant, ignorant of the law and courtroom procedures, is
2 prosecuted by a well-trained, skilled, and experienced attorney
representing the opposing party.
The issue before the Court is not “purely academic” as my
colleagues contend. D.N. v. K.M., __ N.J. __, __ (slip op. at
3) (quoting Crespo v. Crespo, 408 N.J. Super. 25, 45 (App. Div.
2009), aff’d o.b., 201 N.J. 207 (2010)). My colleagues rely on
Crespo, supra, 408 N.J. Super. at 45, a case in which the
Appellate Division declined to address the issue of the right to
appointed counsel in a domestic violence case. Unlike Crespo,
here the Appellate Division decided the issue, and its ruling
stands as the law of the State until this Court says otherwise.
My colleagues cannot expect that an uncounseled defendant,
such as D.N., would know to assert her right to appointed
counsel in a domestic violence case. It was the obligation of
the Family Court to advise her of that right, which did not
happen here. Importantly, D.N. argued on appeal (when
represented by counsel) that she was indigent and had the right
to appointed counsel, and the Appellate Division addressed the
issue in a published decision. I do not understand how my
colleagues can say that “this case is not a good vehicle to
embark on a constitutional analysis of the issue presented,”
D.N., supra, __ N.J. at __ (slip op. at 2), when the issue was
presented to and decided by the Appellate Division.
3 Last year marked the fiftieth anniversary of the landmark
ruling in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9
L. Ed. 2d 799 (1963), a case trumpeting the right to counsel for
the indigent in criminal cases. After Gideon, this Court took a
giant step forward -- far ahead of other courts in the nation --
to secure for the poor the opportunity for equal justice in
courtrooms throughout this State. See Rodriguez v. Rosenblatt,
58 N.J. 281 (1971). The right to counsel is an essential
attribute of a fair trial. The denial of this petition will
surely disappoint those who expect this Court to remain at the
forefront of ensuring a fair adversarial process for the poor
who face serious consequences of magnitude in civil cases.
For the reasons I have given and for those that follow, I
respectfully dissent.
I.
In Rodriguez, supra, this Court held that “as a matter of simple
justice, no indigent defendant should be subjected to a conviction
entailing imprisonment in fact or other consequence of magnitude
without first having had due and fair opportunity to have counsel
assigned without cost.” 58 N.J. at 295 (emphasis added). In
Rodriguez, we recognized that, in our adversarial system, defendants
untrained in the complexities of the law are disadvantaged and in no
position to represent themselves. Ibid. Because the practicalities
of life did not permit for “a universal rule for the assignment of
4 counsel to all indigent defendants,” we accepted that the denial of
counsel “may be tolerable” in cases where litigants face no “serious
consequence.” Ibid. But we were unwilling to abide the denial of
counsel to an indigent defendant who faced a “consequence of
magnitude.” Ibid.
In the wake of Rodriguez, the landscape of the law changed in New
Jersey, and our Court Rules reflect this new reality. Now, under Rule
7:3-2(b), if an indigent defendant is facing a “consequence of
magnitude” in a municipal court case, he or she must be assigned a
municipal public defender. In the municipal court setting, the
potential imposition of a sentence of imprisonment, a period of
license suspension, or even a monetary sanction of $750 or greater,
each individually, constitutes a “consequence of magnitude” entitling
a defendant to the appointment of counsel. Guidelines for
Determination of Consequence of Magnitude, Pressler & Verniero,
Current N.J. Court Rules, Appendix to Part VII at 2503 (2014).
In deciding Rodriguez, we did not hinge our decision on the
number of defendants who might be entitled to appointed counsel. We
did not suggest that for defendants facing consequences of magnitude,
the right to appointed counsel -- and therefore the right to a fair
trial -- depended on a cost analysis. Had the United States Supreme
Court taken the cost-analysis approach, Gideon would not be on the
books today, nor would Rodriguez. My colleagues note in their per
curiam opinion that “last court year alone, from July 2012 through
June 2013, there were approximately 15,800 hearings for final
5 restraining orders, according to the Administrative Office of the
Courts (AOC).” D.N., supra, __ N.J. at __ (slip op. at 2). However,
during that same period, according to the AOC, our court system
disposed of 35,641 driving-while-intoxicated cases, and in every one
of those cases involving an indigent defendant, the right to appointed
counsel was guaranteed. Our approach has not been that if too many
indigent defendants require counsel, we will provide counsel to none.
Appointed counsel, moreover, is provided to many thousands of
criminal defendants, and to a multitude of defendants in civil cases,
as is evident below.
II.
An indigent defendant must be assigned counsel in civil cases if
he is facing imprisonment for failure to pay child support, Pasqua v.
Council, 186 N.J. 127, 149 (2006); termination of parental rights,
N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306-07
(2007); tier classification for community-notification purposes in a
Megan’s Law case, Doe v. Poritz, 142 N.J. 1, 31 (1995); involuntary
civil commitment, In re S.L., 94 N.J. 128, 142 (1983); and contempt
proceedings for violating a restraining order, State v. Ashford, 374
N.J. Super. 332, 337 (App. Div. 2004).
Yet, a defendant who is prosecuted for an act of domestic
violence is not entitled to counsel even though he faces a host of
consequences of magnitude, including an order expelling him from his
6 home, N.J.S.A. 2C:25-29(b)(2); barring him from having contact with
his children, N.J.S.A. 2C:25-29(b)(3)(b), or suspending his custodial
rights to his children, N.J.S.A. 2C:25-29(b)(11); compelling him to
pay compensatory and punitive damages, N.J.S.A. 2C:25-29(b)(4), or
emergency monetary relief, N.J.S.A. 2C:25-29(b)(10); seizing his
firearms, N.J.S.A. 2C:25-29(b)(16), and suspending his right to own a
firearm or retain a firearms permit, N.J.S.A. 2C:25-29(b); restraining
him from entering places frequented by the plaintiff or the
plaintiff’s family or household members, N.J.S.A. 2C:25-29(b)(6);
requiring him to undergo a psychiatric evaluation, N.J.S.A. 2C:25-
29(b)(18), or professional counseling, N.J.S.A. 2C:25-29(b)(5);
dispossessing him of an automobile, N.J.S.A. 2C:25-29(b)(9), or a
family animal, such as a dog, N.J.S.A. 2C:25-29(b)(19); mandating that
he submit to fingerprinting, N.J.S.A. 53:1-15; placing his name on a
central registry for domestic violence offenders, N.J.S.A. 2C:25-34;
requiring him to report to the intake unit of the Family Court for
monitoring, N.J.S.A. 2C:25-29(b)(15), and imposing other restrictions
on his liberty and property interests.
This catalogue underscores that “[t]he issuance of a final
domestic violence restraining order ‘has serious consequences to the
personal and professional lives of those who are found guilty of what
the Legislature has characterized as a serious crime against
society.’” Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div.
2005) (quoting Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App.
Div. 2004)). The inescapable reality is that a finding that one has
committed an act of domestic violence, in addition to everything else,
7 brands that person as a “batterer.” The stigma of that branding is
recorded in the Domestic Violence Registry, N.J.S.A. 2C:25-34, and has
far-reaching effects.
How can our jurisprudence reconcile the right of appointed
counsel to a defendant facing a $750 fine or a one-day license
suspension in municipal court with the denial of that right to a
defendant who is facing much more serious consequences in Superior
Court in a domestic violence case? Yet, the appellate panel in this
case held that “[t]he entry of a domestic violence [final restraining
order], along with an order granting the additional relief available
under N.J.S.A. 2C:25-29b, does not result in a ‘consequence of
sufficient magnitude’ to warrant the mandatory appointment of
counsel.” D.N., supra, 429 N.J. Super. at 604. The appellate panel’s
decision does not appear to reflect the holdings or the spirit of our
jurisprudence.
In Pasqua, supra, we made clear that “[u]nder 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.” 186 N.J. at 147. We acknowledged that “the adverse
consequences of a particular civil proceeding can be as devastating as
those resulting from the conviction of a crime.” Id. at 142. The
assistance of counsel is an indispensable component of the right to a
fair trial in an adversarial proceeding. “A person of impoverished
means caught within the tangle of our criminal or civil justice
8 system” who is facing a consequence of magnitude should have “the
assistance of a trained and experienced lawyer.” See id. at 146.
In Pasqua, we could “find no principled reason why an indigent
facing loss of motor vehicle privileges or a substantial fine in
municipal court . . . 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.” Id. at 149. What principled
reason can be found to deny an indigent defendant, facing so many
consequences of magnitude in a domestic violence case, the right to
appointed counsel, when counsel is provided to a municipal court
defendant who may be fined $750? Certainly, this is an issue worthy
of review.
III.
The petition before us meets every ground for certification under
Rule 2:12-4. The petition “presents a question of general public
importance” that has not been settled by this Court, the appellate
panel’s holding and reasoning “is in conflict with” decisions of this
Court, and, last, it is in the “interest of justice” that this Court
determine whether indigent citizens can be deprived of significant
rights in a domestic violence hearing without the assistance of
counsel. See R. 2:12-4.
With Gideon and Rodriguez as our guides, it is difficult to
imagine a case presenting a more compelling issue for review: the
9 right of indigent defendants, who are facing calamity, to a fair shake
in our civil justice system. I am not willing to turn away from this
important issue. Because I would grant certification, I respectfully
dissent.