NJSBA Family Law Section

 View Only
Cosmo Lex
Back to discussions
Expand all | Collapse all

Support related license suspensions / Civil Rights Action

  • 1.  Support related license suspensions / Civil Rights Action

    Posted 01-05-2019 06:39 PM

    For all interested - the New Jersey Law Journal ran an editorial this week strongly supporting Judge Jacobson's decision and urging the State to expeditiously address the issues: https://www.dpdlaw.com/kavadas . I am hopeful that the decision-makers read it and we're able to make the changes the court found are necessary (and the other improvements she found would be a good idea but aren't Constitutionally mandated).

    We have a court appearance on Tuesday to review the status and the implementation of the decision. I'll keep folks posted.


    <x-sigsep></x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223






    Original Message:

    Sent: 01-13-2015 15:20As I think most of you know, when a warrant is issued in a child support matter, the obligor's driver's license is automatically suspended.

    Of all the frustrations in Family Law, this is one of the biggest.  The suspension prevents the obligor from going to work to pay support, from showing up at an ability to comply hearing, from seeing his/her kids, from applying for jobs, etc.  If, as often happens, an obligor drives anyway and is stopped, they then face municipal court fines of $250-500 and an additional punitive license suspension.  Even if the obligor pays enough toward arrears to life the suspension order, they must come up with $100 to have the license reinstated... $100 that would be better paid toward a support obligation.  Finally, every time a license is suspended and reinstated (for any reason, including for CS), the driver's insurance rates go up.  This renders people unemployable who need a license for work -- most employers aren't going to pay more insurance to their carrier for an employee who has suspensions and is a higher cost to insure.  It also makes it impossible for these people to register their own vehicle even if they come up with enough to pay toward arrears and come up with the $100 restoration fee ... They must then pay thousands more for basic minimum car insurance.

    I realize that most of the victims of this law aren't people we see every day - they generally can't afford counsel.  They're the ones who don't have $100 to get a license back, never mind funds toward a retainer.  This provision - this automatic suspension of licenses is stupid.  It is self-defeating.  It is racist in its application (although, I'm sure, not in it's design - but sit in on the next group brought in for "pay or stay" hearings and see what most defendants have in common).  The automatic suspension of licenses has zero additional coercive effect beyond the entry of an arrest warrant.  It is causing unnecessary human suffering to so many people - payors who get thrust into a cycle where they can't get a job, custodial parents who (as a result) don't get support, kids who don't get supported (and who lost contact with a parent who can't drive to see them).  This needs to change.

    I had the opportunity last night to speak with a legislator who is also a municipal court prosecutor, and was told there's a lot of support behind the idea of changing it.  The just need a bill.  It will have several co-sponsors very quickly.  However, as always, the devil is in the details.  Exactly what steps should be taken and what language proposed?  There's a receptive audience for this, but we need to speak up about it.

    Based on my notes from last night:

    First, I hope the FLEC and NJSBA FLS will support this, and will put forth the effort to make this happen, including using the NJSBA lobbyist resources.

    Second, any legislative history whizzes out there?  I know that it came about as part of a federal incentive.  42 U.S.C. 666(a)(16) holds that, in order to receive matching federal funds for child support enforcement, states must have "(16) Authority to withhold or suspend licenses.� Procedures under which the State has (and uses in appropriate cases) authority to withhold or suspend, or to restrict the use of driver�s licenses ... of individuals owing overdue support or failing, after receiving appropriate notice, to comply with subpoenas or warrants relating to paternity or child support proceedings."

    The problem here is the feds required that the State have this authority -- not that it be applied automatically when a warrant is issued.   Does anyone know how "may" and how "have this authority" was changed to "automatic suspension"?


    The specific changes that should be proposed (as far as I can see, I hope others will chime in):

    1.  A judge or Hearing Office will retain the authority to suspend a driver's license only when there is a finding that doing so, over and above the entry of a warrant, will have additional coercive effect.  (This should protect the federal matching funds issue).

    2. When an obligor pays an amount sufficient to remove a support-related suspension, the judge or HO should have the authority to waive the restoration fee, or require that the license be reinstated and the restoration fee recorded as a civil judgment if it is not paid within one year of the restoration (as is done with public defender fee cases).  The nonpayment of the restoration fee should not prevent the restoration of driving privileges.

    3. When an obligor pays an amount sufficient to satisfy a support-related suspension, the judge or HO should have the authority to vacate the order suspending the license ab initio (pursuant to Rule 4:50-1 or otherwise).  The effect would be that the suspension is removed from the driver's abstract, not simply that the license is reinstated. The difference would be that there would be no adverse insurance rate repercussions.

    I hope there's interest in making this happen.  Any thoughts on the above would be appreciated.


    ------------------------------
    David Perry Davis, Esq.
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax: 609-737-3222
    ------------------------------


  • 2.  RE: Support related license suspensions / Civil Rights Action

    Posted 01-08-2019 07:09 PM
    There was a postjudgment case management conference this morning as to implementation of the court's decision in Kavadas.

    I met with counsel for the AOC and DFD, and we later discussed on the record the issue of the appointment of counsel and where the attorneys would come from to handle these cases. My position (and Judge Jacobson's decision in the case) are consistent: The Madden list should not be utilized. Instead, if counsel are not available and the obligor is indigent, the option of license suspension (like incarceration) should be off the table as a sanction (instead ordering things like job searches with weekly reporting to probation under threat of contempt sanctions, etc).

    I opined that the Bar would probably have a position as to the possible use of the Madden list for these hearings. I believe it would impose an unreasonable burden on the bar, and wouldn't serve the interests of the obligors as these hearings require understanding of the sometimes complex area of arguing for or against enforcement remedies (as evidenced by a recent malpractice judgment against a firm who botched it, resulting in the client improperly going to jail for 10 days when the proper arguments weren't made).

    I offered during the conference that the Bar Association might want to be heard on the issue of potentially requiring pro bono representation from the Madden list. If someone wants to contact me, on list or off, and be heard on the issue on behalf of the Bar, please feel free to do so and I'll pass along the contact information for the attorney for the AOC.

    Of less direct interest -- the State indicated that it may take more time than Judge Jacobson allowed to implement her decision, that it couldn't be done. I of course pointed out that the key is their ability to comply and I wouldn't seek to suspend their driver's licenses. Luckily it went over well. Also, Senator Turner, in response to the decision, has introduced and is trying to fast-track a bill that removes the single sentence in the law calling for automatic suspensions upon the issuance of a support-related warrant (leaving the authority of the court intact to do so in any given case where it would be appropriate coercive and not counter-productive). If the bill is passed and signed, between it and the AOC coming up with a system for the appointment of attorneys, it'll all be resolved.


    <x-sigsep></x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223



    At 06:39 PM 1/5/2019, you wrote:

    For all interested - the New Jersey Law Journal ran an editorial this week strongly supporting Judge Jacobson's decision and urging the State to...
    36780eb.jpg
    For all interested - the New Jersey Law Journal ran an editorial this week strongly supporting Judge Jacobson's decision and urging the State to expeditiously address the issues: www.dpdlaw.com/kavadas . I am hopeful that the decision-makers read it and we're able to make the changes the court found are necessary (and the other improvements she found would be a good idea but aren't Constitutionally mandated).

    We have a court appearance on Tuesday to review the status and the implementation of the decision. I'll keep folks posted.

    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223






    Original Message:
    Sent: 01-13-2015 15:20As I think most of you know, when a warrant is issued in a child support matter, the obligor's driver's license is automatically suspended.

    Of all the frustrations in Family Law, this is one of the biggest.  The suspension prevents the obligor from going to work to pay support, from showing up at an ability to comply hearing, from seeing his/her kids, from applying for jobs, etc.  If, as often happens, an obligor drives anyway and is stopped, they then face municipal court fines of $250-500 and an additional punitive license suspension.  Even if the obligor pays enough toward arrears to life the suspension order, they must come up with $100 to have the license reinstated... $100 that would be better paid toward a support obligation.  Finally, every time a license is suspended and reinstated (for any reason, including for CS), the driver's insurance rates go up.  This renders people unemployable who need a license for work -- most employers aren't going to pay more insurance to their carrier for an employee who has suspensions and is a higher cost to insure.  It also makes it impossible for these people to register their own vehicle even if they come up with enough to pay toward arrears and come up with the $100 restoration fee ... They must then pay thousands more for basic minimum car insurance.

    I realize that most of the victims of this law aren't people we see every day - they generally can't afford counsel.  They're the ones who don't have $100 to get a license back, never mind funds toward a retainer.  This provision - this automatic suspension of licenses is stupid.  It is self-defeating.  It is racist in its application (although, I'm sure, not in it's design - but sit in on the next group brought in for "pay or stay" hearings and see what most defendants have in common).  The automatic suspension of licenses has zero additional coercive effect beyond the entry of an arrest warrant.  It is causing unnecessary human suffering to so many people - payors who get thrust into a cycle where they can't get a job, custodial parents who (as a result) don't get support, kids who don't get supported (and who lost contact with a parent who can't drive to see them).  This needs to change.

    I had the opportunity last night to speak with a legislator who is also a municipal court prosecutor, and was told there's a lot of support behind the idea of changing it.  The just need a bill.  It will have several co-sponsors very quickly.  However, as always, the devil is in the details.  Exactly what steps should be taken and what language proposed?  There's a receptive audience for this, but we need to speak up about it.

    Based on my notes from last night:

    First, I hope the FLEC and NJSBA FLS will support this, and will put forth the effort to make this happen, including using the NJSBA lobbyist resources.

    Second, any legislative history whizzes out there?  I know that it came about as part of a federal incentive.  42 U.S.C. 666(a)(16) holds that, in order to receive matching federal funds for child support enforcement, states must have "(16) Authority to withhold or suspend licenses.� Procedures under which the State has (and uses in appropriate cases) authority to withhold or suspend, or to restrict the use of driver�s licenses ... of individuals owing overdue support or failing, after receiving appropriate notice, to comply with subpoenas or warrants relating to paternity or child support proceedings."

    The problem here is the feds required that the State have this authority -- not that it be applied automatically when a warrant is issued.   Does anyone know how "may" and how "have this authority" was changed to "automatic suspension"?


    The specific changes that should be proposed (as far as I can see, I hope others will chime in):

    1.  A judge or Hearing Office will retain the authority to suspend a driver's license only when there is a finding that doing so, over and above the entry of a warrant, will have additional coercive effect.  (This should protect the federal matching funds issue).

    2. When an obligor pays an amount sufficient to remove a support-related suspension, the judge or HO should have the authority to waive the restoration fee, or require that the license be reinstated and the restoration fee recorded as a civil judgment if it is not paid within one year of the restoration (as is done with public defender fee cases).  The nonpayment of the restoration fee should not prevent the restoration of driving privileges.

    3. When an obligor pays an amount sufficient to satisfy a support-related suspension, the judge or HO should have the authority to vacate the order suspending the license ab initio (pursuant to Rule 4:50-1 or otherwise).  The effect would be that the suspension is removed from the driver's abstract, not simply that the license is reinstated. The difference would be that there would be no adverse insurance rate repercussions.

    I hope there's interest in making this happen.  Any thoughts on the above would be appreciated.


    ------------------------------
    David Perry Davis, Esq.
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax: 609-737-3222
    ------------------------------
      Recommend   Forward   Post New Message via Email  
     
    You are subscribed to "Family Law" as [email protected]. To change your subscriptions, go to My Subscriptions. To unsubscribe from this community discussion, go to Unsubscribe.
     




    Original Message


  • 3.  RE: Support related license suspensions / Civil Rights Action

    Posted 01-09-2019 12:20 AM
    David, please let me know the name of the attorney at the AOC. I absolutely think that the NJSBA will want to weigh in on this. Family lawyers are already being asked to carry a very heavy load relative to pro bono work and this would just add to that ever expanding list. Thank you. 

     

    Jeralyn Lawrence | Attorney at Law

    Treasurer, New Jersey State Bar Association

    Past Chair of the Family Law Section of the NJSBA

    Second Vice-President, American Academy of Matrimonial Lawyers


    776 Mountain Boulevard, Suite 202
    Watchung, NJ 07069
    D: 908-279-0090 | T: 908-645-1000 | F: 908-645-1001
    www.lawlawfirm.com

     

    Pursuant to Treasury Regulations, any U.S. Federal tax advice contained in this communication, unless otherwise stated, is not intended and cannot be used for the purpose of avoiding tax-related penalties.

    Notice: Unless explicitly and conspicuously designated as 'E-Contract Intended', this e-mail does not constitute a contract offer, a contract amendment, or an acceptance of a contract offer. This e-mail does not constitute consent to the use of sender's contact information for direct marketing purposes or for transfers of data to third parties.

    Notice: This message and any attached file is intended for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. Nothing in this e-mail message should be construed as a legal opinion. If you have received this communication in error, please notify me immediately by reply e-mail and delete all copies of the original message. Thank you.





    Original Message


  • 4.  RE: Support related license suspensions / Civil Rights Action

    Posted 01-09-2019 12:56 PM
    Jeralyn -
    <x-tab>        </x-tab>The attorney for the AOC (at least the one handling the Kavadas issues) is Robert McGuire - "Robert McGuire" <[email protected]>. Could you Cc me? I'm sure we're on the same page on this.
    <x-tab>        </x-tab>One clarification of my email yesterday: I know most of us on this list could properly handle an Ability to Comply hearing and know what alternate remedies could be argued for (and how to argue against counterproductive coercive ones when there's no evidence in the record as to an ability to comply). My concern is that a Real Estate (or whatever) attorney assigned from the Madden list may not have a clue and believe that the proper way to proceed is simply to negotiate a payment when there's no ability to pay - thus resulting in someone being incarcerated rather than nudged into seeking employment (etc). It would not only burden the bar, but wouldn't serve litigants to have inexperienced counsel on these cases.
    <x-tab>        </x-tab>The AOC should just follow the Pasqua model and take license suspension off the table absent a specific hearing, with counsel, as to whether it makes sense to go that route.


    <x-sigsep></x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223




    Original Message


  • 5.  RE: Support related license suspensions / Civil Rights Action

    Posted 01-11-2019 12:48 PM
    A case management order was received today from Tuesday's appearance. It's online here: http://dpdlaw.com/kavadas.htm#10 .

    At paragraph 6, Judge Jacobson indicates that a consent order as to the implementation of the right to counsel holding should be submitted by my office and the AOC by February 8, 2019 (I'm Cc'ing counsel for the AOC on this email). Everyone's okay with just throwing these out to the Madden list, right? Kidding...

    As previously indicated, if anyone (NJSBA, etc) wants to participate in the drafting of the consent order with the AOC, please let me know, on-list or off. I know some counties have contracted with counsel to represent obligors in Ability to Comply hearings. In the absence of that (or rare, case-by-case appointments of counsel by judges with pro bono credit given, as I know has happened occasionally), my position as far as the consent order remains the same - that the Pasqua model should be used.

    My preference, although this hasn't been discussed, would be for each county to provide some specific funding to Legal Services to represent indigent obligors facing incarceration or license suspension (with a "Chinese Wall" if there's a conflict). When properly trained counsel are appointed, compliance rates go up. There are excellent stats on this in the amicus briefs submitted in Turner v. Rogers (http://www.scotusblog.com/case-files/cases/turner-v-price/), especially in the "Brief for Elizabeth G. Patterson and the South Carolina Appleseed Legal Justice Center." That's been the experience on the issue across the country. I'd like to see it in NJ.


    <x-sigsep></x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223




    Original Message


  • 6.  RE: Support related license suspensions / Civil Rights Action

    Posted 02-22-2019 11:12 AM
    The State has filed a motion for reconsideration as to the issue of appointing counsel.

    It's online here:  https://www.dpdlaw.com/kavadas.htm#4 (Notice of Motion for Reconsideration as to appointment of counsel (2/22/2019))

    It's frivolous and I've done with believing the State will do anything to move this forward.

    The history:

    In 2014-2015, prior to filing the complaint, I spent upwards of a year writing and trying to get the issue of these unconstitutional suspensions addressed by consent. I got nothing back but, in essence, "thanks for your suggestions and have a nice day."

    In 2015, after filing the complaint, I suggested we attend mediation as to the merits during oral argument of the application for a preliminary injunction.

    The State indicated it needed a long date before it could attend mediation in order to gather all the necessary participants.

    On the first date, the assigned DAG indicated it couldn't proceed without the AOC as a party/defendant (not actually true, there's a "cooperative agreement" between the AOC and the DFD, who were defendants).

    They said they needed counsel for the AOC present.

    I then filed a motion to join the AOC in its administrative role only.

    A month later, the motion was granted.

    The State said it needed another long date before we could return to mediation.

    On the second date, when we returned to mediation, the State had no additional attorney present - same DAG - in contrast to its position it needed another attorney their for the AOC.

    The DAG then said there was no settlement authority as to any issue. Obviously, if they had no authority, they could have said this in the first place, but the agreement to mediate delayed everything by seven months.

    They then asked for a long date to get their brief / opposition filed. They got it.

    ___________

    On December 7, 2018, the court issued its opinion on the merits.

    The AOC needed extensions as to the date when they'd supply guidelines as to the appointment of counsel: Who would do it and how. I was obliging and signed a consent order extending the date to today (2/22/19).

    The State claimed it needed until August 1, 2019 to implement the judge's decision. I was dubious, but obliged and agreed (I've since learned from the Chief of Technology at Princeton University that they could have stopped the unconstitutional suspensions within 24 hours or less - it's a very basic and quick coding issue).

    The State also agreed to my suggestion that we mediate the issue of counsel fees, but said it needed over two months "to get the necessary approvals."

    So, after getting their long date for mediation, we went on 2/19 and mediated with Judge Anklowitz. And..... "I have no settlement authority. Can we get another date in March and delay the motion in the meantime?" At this point, for the first time, I objected to the request for a long date for the motion to be heard. (May 5!)

    ___________

    Today was the date by which the State was to supply its memo as to the procedure for the appointment of counsel (or the application of the "Pasqua rule" - no counsel = can't impose the consequence).

    Instead of supplying its plan, the State filed a motion claiming the AOC doesn't have the power to implement Judge Jacobson's order. Don't laugh. That's seriously what they're arguing.

    ___________

    I have agreed to every accommodation, sought mediation at every turn, compromised, accepted on their face any representations the State has made. I'm now done agreeing to anything. The State has done nothing in good faith, instead signalling that it will fight tooth and nail to keep in place a racist (in practice if not by design), counterproductive, brutal policy that is destroying lives. The claim that they need eight months to stop the automatic suspensions was a fraud upon the court. The agreements to mediate have been nothing but bad-faith delay tactics where they stretch out dates and then say "gosh, it turns out we have no authority."

    I'm done agreeing to anything with these people.



    <x-sigsep></x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223




    Original Message


  • 7.  RE: Support related license suspensions / Civil Rights Action

    Posted 02-24-2019 01:46 PM

    Dave you are right and their obstructionist tactics cannot control – keep up the good fight!

     

    C. Megan Oltman

    Oltman Law & Mediation

    475 Wall St

    Princeton, NJ 08540

    http://moltmanlaw.com

    (609) 924-2044

     

    This communication is privileged and confidential. If you are not the intended recipient please delete the email.

    A telephone or in person consultation does not mean I am retained as your attorney. I am only retained if we have both signed a retainer agreement, and I have received the agreed upon retainer deposit from you. Consultation sessions are payable at the time services are rendered.
     
    FEDERAL TAX NOTICE - IRS rules restrict tax advice by attorneys. I am not an accountant. No advice in this correspondence is intended to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer under federal tax laws. Please consult with an accountant for tax advice.
     
    I appreciate your referrals!

     




    Original Message


  • 8.  RE: Support related license suspensions / Civil Rights Action

    Posted 02-26-2019 01:03 PM
    The bill to remove the single problematic sentence requiring the automatic, no-notice, no-hearing suspension of driver's licenses as a result of defaulting on a child support obligation has been formally introduced and referred to the Judiciary Committee (both Senate and Assembly). It's sponsored by Sen. Shirley Turner in the Senate, and Asm Anthony Verrelli and Asw Verlina Reynolds-Jackson in the Assembly.

    This change in the law would address the Constitutional defects found by Judge Jacobson in http://www.dpdlaw.com/Kavadas and is in line with the recommendations in the recent New Jersey Law Journal editorial.

    The text of the bill is below. There's only one change from the current law. The relevant sentence is in the final sentence of the statement: "This bill would eliminate the provision authorizing suspension of the obligor’s driver’s license by operation of law. The effect of this bill would be to allow the obligor an opportunity for a court hearing on the issue of whether the obligor’s driver’s license should be suspended."

    The Bill number is S3424 and A5061.

    Please reach out to your legislators, to Senator Scutari (Chair of the Committee) and to Assemblywoman Annette Quijano, who will have to bring the bill before the Judiciary Committee for it to move.

    You can email your reps at:  "Last, First" <[email protected]> 

    And/or call the Committee chairs, express support for the bill, and ask that it be heard ASAP:
    <x-tab>        </x-tab>Assemblywoman Annette Quijano  (908) 327-9119  (A 5061)
    <x-tab>        </x-tab>Senator Nicholas P. Scutari (908) 587-0404 (S 3423)

    I also hope the FLEC/Legislative Committee, Bar Association, and everyone else will express support for its rapid passage of the bill into law.

    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223

    ASSEMBLY, No. 5061
    SENATE, No. 3423
    STATE OF NEW JERSEY
    218th LEGISLATURE
     
    INTRODUCED FEBRUARY 14, 2019

    Sponsored by:
    Assemblyman  ANTHONY S. VERRELLI
    District 15 (Hunterdon and Mercer)

    Assemblywoman  VERLINA REYNOLDS-JACKSON
    District 15 (Hunterdon and Mercer)
     
    SYNOPSIS
         Provides that driver’s license may not be suspended on grounds of failure to pay child support unless obligor is given opportunity for court hearing.

    CURRENT VERSION OF TEXT
         As introduced.

    An Act concerning driver’s license suspensions and amending P.L.1996, c.7.
         Be It Enacted by the Senate and General Assembly of the State of New Jersey:
             Section 3 of P.L.1996, c.7 (C.2A:17-56.41) is amended to read as follows:
           a.  If the child support arrearage equals or exceeds the amount of child support payable for six months or court-ordered health care coverage for the child is not provided for six months, or the obligor fails to respond to a subpoena relating to a paternity or child support action, or a child support-related warrant exists, and the obligor is found to possess a license in the State and all appropriate enforcement methods to collect the child support arrearage have been exhausted, the Probation Division shall send a written notice to the obligor, by certified and regular mail, return receipt requested, at the obligor's last-known address or place of business or employment, advising the obligor that the obligor's license may be revoked or suspended unless, within 30 days of the postmark date of the notice, the obligor pays the full amount of the child support arrearage, or provides proof that health care coverage for the child has been obtained, or responds to a subpoena, or makes a written request for a court hearing to the Probation Division. [The obligor's driver's license shall be suspended by operation of law upon the issuance of a child support-related warrant.] If a child support-related warrant for the obligor exists, the professional, occupational, recreational or sporting license revocation or suspension shall be terminated if the obligor pays the full amount of the child support arrearage, provides proof that health care coverage for the child has been obtained as required by the court order, or surrenders to the county sheriff or the Probation Division.
         b.    If the obligor fails to take one of the actions in subsection a. of this section within 30 days of the postmark date of the notice and there is proof that service on the obligor was effective, the Probation Division shall file a certification with the court setting forth the obligor's non-compliance with the support order and the obligor's failure to respond to the written notice of the potential license suspension or revocation.  If, based on the papers filed by the Probation Division, the court is satisfied that service on the obligor was effective as set forth in this section, it shall without need for further due process or hearing, enter a court order suspending or revoking all licenses held by the obligor.  Upon the entry of the order, the Probation Division shall forward a copy to the obligor and all appropriate licensing authorities.
         For the purposes of this section, the court may deem procedural due process requirements for notice and service of process to be met with respect to a party thereto upon delivery of written notice to the most recent residential or employer address filed with the Probation Division for that party. If a party fails to respond to a notice and no proof is available that the party received the notice, the Probation Division shall document to the court that it has made a diligent effort to locate the party by making inquiries that may include, but are not limited to: the United States Postal Service, the Division of Motor Vehicles in the Department of Transportation, the Division of Taxation in the Department of the Treasury and the Departments of Labor and Corrections.  The Probation Division shall provide an affidavit to the court presenting such documentation of its diligent effort, which certifies its inability to locate the party, before any adverse action is taken based upon the party's failure to respond to the notice.
         c.     If the obligor requests a hearing, the Probation Division shall file a petition for a judicial hearing in accordance with section 5 of P.L.1996, c.7 (C.2A:17-56.43).  The hearing shall occur within 45 days of the obligor's request.  If, at or prior to the hearing, the obligor pays the full amount of the child support arrearage or provides health care coverage as ordered, or responds to the subpoena or surrenders to the county sheriff or the Probation Division, the license revocation process shall be terminated.  No license revocation action shall be initiated if the Probation Division has received notice that the obligor has pending a motion to modify the child support order if that motion was filed prior to the date that the notice of the license suspension or revocation was sent by the Probation Division.  The court shall consider the Probation Division's petition to revoke or suspend a license in accordance with section 5 of P.L.1996, c.7 (C.2A:17-56.43).
         2.    This act shall take effect immediately.

    STATEMENT
         This bill would eliminate a provision in current law requiring the automatic suspension of the driver’s licenses of certain delinquent child support obligors.
         Currently, the driver’s license or professional license of a delinquent child support obligor may be revoked or suspended under certain circumstances. If the arrearage equals or exceeds the amount of child support payable for six months, if the obligor fails to respond to a subpoena, or if a child support-related warrant exists, and all appropriate enforcement methods to collect the child support arrearage have been exhausted, the Probation Division is required to send a written notice to the obligor advising him that the license may be revoked or suspended unless the obligor pays the full amount of the arrearage within 30 days, or responds to a subpoena, or makes a written request for a court hearing to the Probation Division.
         The statute also specifies that the obligor's driver’s license will be suspended by operation of law upon the issuance of a child support-related warrant. This bill would eliminate the provision authorizing suspension of the obligor’s driver’s license by operation of law. The effect of this bill would be to allow the obligor an opportunity for a court hearing on the issue of whether the obligor’s driver’s license should be suspended.



    Original Message


  • 9.  RE: Support related license suspensions / Civil Rights Action

    Posted 03-06-2019 02:00 PM

    A friendly reminder that any position of the NJ State Bar Association must be approved by the Board of Trustees. This bill is currently being reviewed by relevant sections. You are certainly able to reach out in your personal capacities, but you may not represent your position as being that of the Family Law Section of the NJSBA or the NJSBA.

     

    I appreciate your continued involvement in the legislative activities of the NJSBA. Our voices are strong because of our members! Please reach out to me if you have any questions or would like further information.

     

    Thanks!

    Lisa



    Disclaimer

    The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful.

    This email has been scanned for viruses and malware, and may have been automatically archived by Mimecast Ltd, an innovator in Software as a Service (SaaS) for business. Providing a safer and more useful place for your human generated data. Specializing in; Security, archiving and compliance. To find out more Click Here.




    Original Message


  • 10.  RE: Support related license suspensions / Civil Rights Action

    Posted 02-26-2019 09:02 PM
    Hopefully the last filing (ha!) in www.dpdlaw.com/kavadas . This is opposing the State's ridiculous "motion to reconsider under R 4:50-1."

    If anyone feels like donating a quick read, this is near-final draft, to be filed Thursday. It's not long (14 pages double-spaced). I'm really, really surprised that the State doesn't know court rules (R. 4:50-1 only applies to final orders, etc) and...just generally that they'd file this and make me waste many hours researching this minutia on who has authority to make the changes Judge Jacobson found are required and who doesn't.... when they damned well know the answers. This is a bad-faith delay tactic.

    If folks can only read one thing, the certification of counsel (     http://www.dpdlaw.com/Kavadas_PlaCertCounselOppRecon26Feb2019.pdf ) is where I feel my blood pressure rise, but it's all true and accurate and...
    unless I'm told it'll hurt the case, I'm comfortable filing it. But if it's too angry and the "vent" isn't worth the possible harm to the case, please let me know. It's toned down about 500 x from the first draft.

    Plaintiffs (my) response:

    <x-tab>        </x-tab>http://www.dpdlaw.com/Kavadas_PlaOppReconBrief22Feb2019.pdf

    <x-tab>        </x-tab>http://www.dpdlaw.com/Kavadas_PlaCertCounsel26Feb2019.pdf

    <x-tab>        </x-tab>(And below).

    Defendants' / State's brief:

    <x-tab>        </x-tab>http://www.dpdlaw.com/Kavadas_DefReconBrief22Feb2019.pdf

    <x-tab>        </x-tab>http://www.dpdlaw.com/Kavadas_DefNoticeOfMotionAttachments22Feb2019.pdf 



    <x-sigsep>

    Please confirm that you received this email and referenced attachments (if any).

    - Dave

    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223









    The Law Office of
    David Perry Davis
    57 Hamilton Ave - Suite 301
    Hopewell, NJ 08525
    (609) 4661222
    (609) 466-1223 (fax)
    Attorney ID: 047451996
    Attorney for plaintiffs
                                          
    Andreana Kavadas, Alisha Grabowski, LaQuay Dansby, Paulo Arede,

    Plaintiffs

             vs.

    Raymond P. Martinez, in his official capacity as Chief Administrator of the New Jersey Motor Vehicle Commission, and The New Jersey Motor Vehicle Commission,

    Gurbir S. Grewal, Esq., in his official capacity as Acting Attorney General of the State of New Jersey, and The State of New Jersey,

    Natasha Johnson, in her official capacity as Director of the Department of Human Services, Division of Family Development, Office of Child Support Services, and Department of Human Services, Division of Family Development, Office of Child Support Services,

    Hon. Glenn Grant, JAD, in his official capacity as Acting Director of the Administrative Office of the Courts, The Administrative Office of the Courts, and the Probation Division,

    Defendants    <x-tab>      </x-tab>::::::::::::::::::::::::::::::<x-tab>  </x-tab>SUPERIOR COURT OF NEW JERSEY
    CHANCERY DIVISION
    MERCER COUNTY
    DOCKET NO. MER-L-1004-15

    Civil Action






    MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' CROSS APPLICATION









    David Perry Davis, Esq.
    On the brief

    TABLE OF CONTENTS
    Table of Contents<x-tab>       </x-tab>ii
    Table of Authorities<x-tab>    </x-tab>iii
    Preliminary Statement<x-tab>   </x-tab>1
    Statement of facts<x-tab>      </x-tab>1
    Argument
      I.<x-tab>    </x-tab>DEFENDANTS' MOTION SHOULD BE DENIED<x-tab>     </x-tab>1

      A.<x-tab>    </x-tab>Rule 4:50-1 does not apply to interlocutory orders<x-tab>      </x-tab>1

      B.<x-tab>    </x-tab>Defendants are estopped from challenging the authority of the Court to require action from the AOC after insisting they be joined as parties<x-tab>    </x-tab>3

      C.<x-tab>    </x-tab>Even if defendant's motion is viewed as an application for reconsideration pursuant to Rule 4:49-2, it remains defective<x-tab>        </x-tab>5

      D.<x-tab>    </x-tab>On its merits, the assertion that the AOC cannot act without a directive from the New Jersey Supreme Court is unsupported and false<x-tab>     </x-tab>8

     II.<x-tab>    </x-tab>DEFENDANTS MUST CEASE THE UNCONSTITUTIONAL AUTOMATIC SUSPENSIONS NO LATER THAN APRIL 7, 2019<x-tab>    </x-tab>12

    Conclusion<x-tab>      </x-tab>14
    Table of Authorities
    Federal Case law
    Forrester v. White, 484 U.S. 219 (1987)9
    In re WhitneyForbes, Inc., 770 F.2d 692 (7th Cir.1985) 3
    Stump v. Sparkman, 435 U.S. 349 (1978)9

    New Jersey Case law
    Baumann v. Marinaro, 95 N.J. 380, 395 (1984)3
    Bhagat v. Bhagat, 217 N.J. 22 (2014)5
    Brown v. City of Bordentown,348 N.J.Super. 143 (App. Div. 2002)7
    Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996)5
    Greco v. Zecchino,285 N.J.Super. 418 (App.Div. 1995)2
    In Re Adoption of J.E.V.,226 N.J. 90 (2016)8
    Johnson v. Strapping Corp., 220 N.J. Super. 250 (App.Div. 1987)2
    Kimball Int'l, Inc. v. Northfield Med. Prods.,334 N.J. Super. 596 (App. Div. 2000)5
    Lahue v. Pio Costa, 263 N.J.Super. 575 (App. Div.), certif. denied. 134 N.J. 477 (1993)6
    State v. Luthe383 N.J.Super. 512, 514 (App.Div.2006)8
    Medina v. Pitta, 442 N.J. Super. 1 (App.Div.),certif.den. 223 N.J. 555 (2015)5
    O'Connor v. Abraham Altus, 67 N.J. 106, 126 (1975)2
    Pasqua v. Council 186 N.J. 127 (2006)1, 3, 8, 9
    Rosa v. Araujo, 260 N.J. Super 458 (App. Div. 1992)2
    New Jersey Court Rules
    Rule 4:49-2<x-tab>     </x-tab>6
    Rule 4:50-1<x-tab>     </x-tab>2, 3, 4, 6

    New Jersey Administrative Code
    N.J.A.C. 10:110-2<x-tab>       </x-tab>4
    N.J.A.C. 10:110-3<x-tab>       </x-tab>4
    N.J.A.C. 10:110-4<x-tab>       </x-tab>4

    PRELIMINARY STATEMENT
    <x-tab>        </x-tab>Defendants' motion is procedurally and substantively deficient and should be denied. This court instructed the AOC to develop procedures and instructed that, in the interim, the "the Pasqua method" (not imposing the consequence at issue if no appointed counsel are available) would apply. As other courts (including the Supreme Court and Appellate Division) have done in similar cases, the issue of a more permanent resolution was referred to the AOC. The court's decision was correct in all regards.
    <x-tab>        </x-tab>Plaintiffs' cross application to compel defendants to cease the conduct found by this court to be unconstitutional should be granted.

    STATEMENT OF FACTS
    <x-tab>        </x-tab>Plaintiffs incorporate the facts as found by the Court in its December 7, 2018 decision.

    ARGUMENT
      <x-tab>      </x-tab>I.<x-tab>      </x-tab>DEFENDANTS' MOTION SHOULD BE DENIED
    <x-tab>        </x-tab>Defendants' application is procedurally and substantively deficient and should be denied in whole.
    <x-tab>        </x-tab>A. Rule 4:50-1 does not apply to interlocutory orders.
    <x-tab>        </x-tab>Defendants' application is premised on the application of Rule 4:50-1. The rule states, in relevant part:
    On motion, with briefs, and upon such terms as are just, the Court may relieve a party or the party's legal representative from a final judgment or order for the following reasons... (Emphasis added).
    <x-tab>        </x-tab>The Court's December 7, 2018 order permits plaintiffs to apply for counsel fees and costs, a motion that remains pending.
    <x-tab>        </x-tab>An interlocutory order is one that does not dispose of "all issues as to all parties." The Appellate Division has been clear that if even a counsel fee determination is reserved, an order remains interlocutory, Greco v. Zecchino, 285 N.J.Super. 418 (App.Div. 1995); Johnson v. Strapping Corp., 220 N.J. Super. 250 (App.Div. 1987); Pressler & Verniero, Current N.J. Court Rules, comment 2 (Applicability) at 2087 (2019 Edition).
    <x-tab>        </x-tab>Additionally, defendants seek relief under both sub-sections (d) and (f) of Rule 4:50-1. Neither subsection is applicable. An order is "void" for purposes of the rule if there is a fundamental defect in the procurement of a judgment. Most commonly, an order has been held to be void when there was a lack of proper service resulting in a party being deprived of the opportunity to represent its interests, Rosa v. Araujo, 260 N.J. Super 458, 462 (App. Div. 1992) or when there was a lack of personal jurisdiction over a defendant. O'Connor v. Abraham Altus, 67 N.J. 106, 126 (1975). An order is not void as a result of a court's purported error (even assuming, arguendo, that one occurred here, which did not happen). "Even gross errors committed by a court in reaching a decision do not render the court's judgment or order void." In re WhitneyForbes, Inc., 770 F.2d 692, 696 (7th Cir.1985) ("A judgment is not void merely because it is erroneous."). Even if (arguendo) there were a legitimate issue as to the AOC's authority to comply with the court's directive, this would not render the order void. An ability to comply would serve as a defense if a motion to enforce litigant's rights were filed as to this issue, Pasqua v. Council, 186 N.J. 127 (2006), which obviously has not occurred.
    <x-tab>        </x-tab>Defendants additionally cite to subsection (f) of the rule. Relief under 4:50-1(f) is available only when a court is presented with a reason not included among any of the reasons subject to the one year limitation. Baumann v. Marinaro, 95 N.J. 380, 395 (1984). A movant cannot seek relief under both subsection (f) and another sub-section of the rule.
    <x-tab>        </x-tab>As Rule 4:50-1 does not apply to interlocutory orders and, in any case, the order at issue is not "void" as defined by law, defendants' application must be denied.

      B.<x-tab>    </x-tab>Defendants are estopped from challenging the authority of the Court to require action from the AOC after insisting they be joined as parties.
    <x-tab>        </x-tab>The original complaint did not include the Administrative Office of the Courts (AOC) as a defendant. Plaintiffs reasoned that, as a result of the shared responsibility between the AOC and DFD pursuant to the Cooperative Agreement, it was unnecessary to do so and had the potential to unnecessarily complicate the issues.
    <x-tab>        </x-tab>Pursuant to N.J.A.C. 10:110-3.1, the responsibilities of the DFD include "ensur[ing] a process is established and maintained for the denial, suspension or revocation of driver's ... licenses for obligors owing past-due support." N.J.A.C. 10:110-3.1(u)(6).
    <x-tab>        </x-tab>Specifically as to the AOC,  N.J.A.C. 10:110-1.2 requires that "...the Division of Family Development ... shall oversee the delivery of child support services involving ... the Judiciary's Administrative Office of the Courts ..." The DFD is thus ultimately responsible for implementing procedures and making changes (such as ending automatic suspensions and devising a procedure for the appointment of counsel) and is required to "supervise and monitor the Child Support Program." Id.
    <x-tab>        </x-tab>Additionally, N.J.A.C. 10:110-3.4 ("Monitoring of the Administrative Office of the Courts' (AOC) responsibilities") specifically holds that the DFD (via the OCSS) is "responsible for monitoring the activities included in the Cooperative Agreement between the Division and AOC, which shall include, but is not limited to, the following activities: 1. Developing standard operating procedures ... which shall be reviewed by the Department prior to adoption and implementation to ensure compliance with requirements under Title IV-D of the Social Security Act."
    <x-tab>        </x-tab>Pursuant to the referenced Cooperative Agreement between the DFD and AOC:
    3.21. Any standard operating procedures, practices, guidelines ... policies ... promulgated or proposed by the Judiciary with regard to the Title IVO program must be developed with DFD representation and/or consultation, as appropriate, depending upon the magnitude and potential impact of the issue, and provided to DFD for review and recommendation prior to adoption as a Court Rule or issuance as Administrative Policy. If any are later found to be noncompliant with Federal/State law ... the Judiciary will expeditiously take any and all action necessary to correct the noncompliance. (Emphasis added).
    <x-tab>        </x-tab>Thus, it was determined that the DFD was the appropriate party to be sued and instructed to implement procedures necessary to bring defendants into compliance with the Constitution and statutes.
    <x-tab>        </x-tab>At oral argument of plaintiffs' application for a preliminary injunction, defendants insisted not only that the AOC was a necessary party, but that they were the liable parties as they issued directives that were vital to the functioning of the system:
    MS. AUGUSTINE:... I just briefly would point out too that the
    named defendants in this matter are  appear not to be
    the proper parties.
    <x-tab>        </x-tab>I mean, plaintiff is questioning what the
    Probation Division, the AOC is doing, and they're not
    defendants here. A lot of the argument has been made
    about Probation and the AOC issuing certain guidelines
    or not having certain procedures in place. But, they
    were things that  the enforcement is conducted by the
    Probation Division, and the AOC issues the directives. (Excerpt of transcript of oral argument, Exhibit B, 89:14-20)

    <x-tab>        </x-tab>Additionally, defendants represented in writing that, while they were interested in attending mediation in good faith and reaching a resolution as to the merits, they could not do so without the participation of the "necessary party" AOC, who would have to be named as defendants (Exhibit A).
    <x-tab>        </x-tab>As defendants were refusing to proceed with mediation without the AOC being named, and section 3.21 of the Cooperative Agreement requires that "[i]f any [procedures] are later found to be noncompliant with Federal/State law ... the Judiciary will expeditiously take any and all action necessary to correct the noncompliance", plaintiffs reluctantly amended the complaint and added the AOC as a defendant.
    <x-tab>        </x-tab>Aside from being false, defendants' claim to this court that the "AOC lacks authority unilaterally to develop and implement a procedure for the appointment of counsel for indigent child support obligors facing potential license suspensions" absent specific instruction from the Supreme Court directly contradicts the earlier assertion that the AOC was not only a necessary party, but the only proper party for plaintiffs to sue.
    <x-tab>        </x-tab>Although judicial estoppel most often arises when a party takes inconsistent positions in different litigation, it can be equally applicable where an inconsistent legal positions are asserted in different proceedings in the same litigation. "The purpose of the judicial estoppel doctrine is to protect `the integrity of the judicial process.'" Kimball Int'l, Inc. v. Northfield Med. Prods., 334 N.J. Super. 596, 606 (App. Div. 2000) (quoting Cummings v. Bahr, 295 N.J. Super. 374, 387 (App. Div. 1996)); see also Bhagat v. Bhagat, 217 N.J. 22, 37 (2014).
    <x-tab>        </x-tab>After (albeit incorrectly) arguing that the inclusion of the AOC in the complaint was mandatory for relief to be granted, defendants are estopped from asserting that the AOC lacks the authority to enact Directives that would bring it into compliance with the New Jersey and United States Constitutions.

      C.<x-tab>    </x-tab>Even if defendant's motion is viewed as an application for reconsideration pursuant to Rule 4:49-2, it remains defective.
    <x-tab>        </x-tab>Although defendants pled and argued their application under Rule 4:50-1, which does not apply to interlocutory orders, the Notice of Motion page indicates that it "will apply to court for an order reconsiering [sic] its decision of December 7, 2018."
    <x-tab>        </x-tab>In addition to the above reasons, defendants' application would also fail if presented as an application for reconsideration. In spite of the volume of briefing done in this case, defendants never previously raised the issue of the authority of this court to direct the AOC to implement procedures. A motion for reconsideration is not the proper vehicle to present new legal arguments that could have been raised earlier. Medina v. Pitta, 442 N.J. Super. 1,18 (App.Div.), certif. den. 223 N.J. 555 (2015); Pressler & Verniero, Current N.J. Court Rules, comment 2 (Applicability) at 2085 (2019 Edition). To the extent defendants are asserting an immunity or affirmative defense, these also are not subject to revival via a motion for reconsideration. Lahue v. Pio Costa, 263 N.J.Super. 575 (App. Div.), cert. denied. 134 N.J. 477 (1993).

      D.<x-tab>    </x-tab>On its merits, the assertion that the AOC cannot act without a directive from the New Jersey Supreme Court is unsupported and false.
    <x-tab>        </x-tab>Defendants' argument on this point boils down to an outrageous claim that the AOC, in its administrative capacity, is immune from the mandates of the Constitution. A duly appointed Superior Court judge, in an exhaustive 187 page opinion, correctly found that the Constitutional and Statutory rights of the plaintiffs have been violated and that remedial action is required to prevent this from recurring. Pursuant to Article VI, Section III, paragraph 1 of the New Jersey Constitution, this court has authority to "...exercise the powers of the Court..." and is sworn to uphold and defend the Constitution. See, New Jersey Constitution, N.J. Const. Art. VI,     § 3, ¶ 1.
    <x-tab>        </x-tab>Defendants argument - that, in effect, only the Supreme Court can address a Constitutional violation and mandate it be cured - is specious. This court has both the duty and the authority to protect, defend, and uphold the Constitutions of the State of New Jersey and the United States.
    <x-tab>        </x-tab>Issues such as this are precisely why plaintiffs did not include the AOC as a defendant when the complaint was initially filed, but reluctantly amended the complaint when defendants indicated they could not continue in mediation absent its inclusion.
    <x-tab>        </x-tab>Defendants' argument boils down to a claim of immunity - that a Superior Court judge does not the authority to instruct the AOC to take administrative action. No legal authority is presented for this proposition as none exists. While AOC employees are judicial personnel and considered "an arm of the court." In Re P.L., 186 N.J. 368 (2006), a judicial or quasi-judicial officer is entitled to immunity only for actions taken within their judicial capacity.  The law is clear that there exists a distinction between judicial and non-judicial functions. "Administrative decisions, even though they may be essential to the very functioning of the courts, have not ... been regarded as judicial acts" and, as such, do not give rise to immunity. Acts taken in an executive or administrative capacity are not entitled to immunity from a claim for injunctive relief." Forrester v. White, 484 U.S. 219, 227 (1987), Stump v. Sparkman, 435 U.S. 349, 362 (1978), Brown v. City of Bordentown, 348 N.J.Super. 143, 14849 (App. Div. 2002).
    <x-tab>        </x-tab>Here, the AOC is in a dual role, as both an "arm of the court" and acting in an administrative capacity. This dual role has not prevented courts from referring matters to it for action. Although the Court in Pasqua v. Council, 186 N.J. 127 (2006) and In Re Adoption of J.E.V., 226 N.J. 90 (2016) referred the specifics of how counsel would be appointed to Supreme Court committees, it in no way reserved the ability to do so to itself.
    <x-tab>        </x-tab>In other contexts, courts other than the Supreme Court have referred matters to the AOC for action. In State v. Luthe, 383 N.J.Super. 512, 514 (App.Div.2006), the Appellate Division, after noting inconsistencies in sentencing policies in DWI matters across the State, "refer[ed] the matter to the Administrative Director of the Courts for consideration of the need for such directives as may be appropriate to ensure uniform compliance with the statute." Id. at 514. There was no appeal in Luthe claiming that the Appellate Division overstepped its authority in taking this action.
    <x-tab>        </x-tab>Nor did this court instruct specifically how the AOC was to bring itself into compliance with the Constitution. To the contrary, the Court stated during the January 8 case management conference that it "certainly didn't intend to step on the toes of the Supreme Court in terms of choosing what mechanism would be best." (Emphasis added). Although it would have had the authority to do so, this court did not instruct the AOC as to how to proceed. Rather, it ordered simply that it take whatever action is necessary and develop procedures to bring itself in line with the Constitution.
    <x-tab>        </x-tab>All persons, and especially the defendants herein who have sworn an oath to do so, must comport their conduct with the State and Federal Constitutions, the Supreme Law of the Land. See, e.g., Jackman v. Bodine, 43 N.J. 453, 457, 46871 (1964); McNeil v. Legislative Apportionment Comm'n, 177 N.J. 364, 388, 828 A.2d 840 (2003), cert. denied, 540 U.S. 1107, 124 S.Ct. 1068, 157 L.Ed.2d 893 (2004).
    <x-tab>        </x-tab>The supposition that only the Supreme Court can instruct the AOC to take action is further undermined by the previously cited Administrative Code provisions and the Cooperative Agreement between the AOC and the DFD (which was entered into without an instruction from the Supreme Court that it do so). The AOC, when acting in its administrative capacity, is an administrative body, subject to the dictates of statutes, administrative codes, its own prior agreements and, of course, the Constitution.
    <x-tab>        </x-tab>To the extent any question exists as to whether the court's order should have been directed toward the DFD rather than the AOC, it could and should have been resolved without a motion being filed. Had defendants simply reached out to plaintiffs' counsel, a consent order would have been agreed to and submitted, along with an appropriate cover letter explaining to the court why such a change was sought, changing the terms of the court's order to state that "the DFD (rather than the AOC) shall develop and implement a procedure for the appointment of counsel for indigent child support obligors facing potential license suspensions" (Db at 5). Instead, as has been its practice since before this litigation was filed, defendants chose a litigious and legally insupportable course of action. In the meantime, 54 people per day continue to be harmed by an illegal, counter-productive, and unconstitutional system.
    <x-tab>        </x-tab>Defendants had the option of acting before litigation was ever filed when plaintiffs' counsel wrote extensive, well-sourced correspondence outlining how the process was violative of plaintiffs' Constitutional and statutory rights. Defendants had the option of settling this matter in good faith after it was filed. It is no longer an option: The Court has ruled that defendants must take steps to adhere to the rule of law.
    <x-tab>        </x-tab>The challenge to this court's authority to enter the order it did is preposterous and must fail.

      <x-tab>      </x-tab>II.<x-tab>     </x-tab>DEFENDANTS MUST CEASE THE UNCONSTITUTIONAL AUTOMATIC SUSPENSIONS NO LATER THAN APRIL 7, 2019.
    <x-tab>        </x-tab>The Court's decision found both that the current process is unconstitutional and noted that, even under the currently existing statute, suspensions "by operation of law" does not require the automatic, no-notice suspension of driver's licenses. Numerous changes were thus required to the process and procedures currently in place.
    <x-tab>        </x-tab>Counsel for plaintiffs, in an effort to be sensitive to the magnitude of the tasks involved in re-writing notices, reprogramming the systems used by Probation and the DFD, and providing training to staff, did not oppose or question defendants' unsworn representation that accomplishing these tasks would take until August 1, 2019. These issues were discussed at length during the case management conference held on January 8. A consent order to this effect was signed.
    <x-tab>        </x-tab>The terms of the Court's Case Management Order contained, in a separate paragraph, a requirement that a report be made to the Court and plaintiffs' counsel as to ceasing the automatic suspension of licenses:
    2. On or before January 31, 2019, counsel for Defendant, DFD, shall notify Plaintiff's counsel and the Court as to whether DFD will cease the practice of automatically suspending driver's licenses when a warrant for non-payment of child support issues.
    <x-tab>        </x-tab>While the issue of the bureaucratic changes and the mechanism for the appointment of counsel was discussed at length, the only reference by defendants to ceasing automatic suspensions was:
    MR. SULLIVAN: I want to thank plaintiff's
    counsel for his flexibility. We had, I think, a
    fruitful discussion. Here's what we propose. At the
    end of the month, I'll make a representation  this
    won't go into any order, but I'm happy to make this
    representation on the record that I will hear from the
    agency and I will contact counsel about the issue of
    discontinuing automatic suspensions. We don't know
    whether that's possible or not. We have to look into
    the mechanics of that. But we  and so we will. And
    he will know one way or the other by the end of the
    month.
    THE COURT: And that's by, we'll say, January
    31st. (Plaintiff's Exhibit B, 30:5-18).
    <x-tab>        </x-tab>The end of the month came and went, and neither the Court nor plaintiffs' counsel was advised as to whether immediately ceasing the automatic suspension process is "possible."
    <x-tab>        </x-tab>As of the return date of this motion, it will have been three and a half months since the Court correctly found that this brutal, counter-productive and illegal process violates the Constitutional and Statutory rights of the plaintiffs. At 54 suspensions per day, approximately 5,000 (five thousand) people will have been subjected to it since this court unambiguously found (in a ruling defendants do not question) it to be illegal and unconstitutional.
    <x-tab>        </x-tab>If defendants cannot report on the return date of this application that it has already occurred, the automatic suspensions need to stop now. If they have not, plaintiffs ask this court to compel defendants to, within seven days, provide a sworn certification, under oath and penalty of perjury, that they were "unable" to do so - that it was "impossible."


    Conclusion
    <x-tab>        </x-tab>For the above reasons, defendants' application should be denied and plaintiff's cross application granted.

    Respectfully submitted,



    David Perry Davis, Esq.


      The Law Office of
    David Perry Davis
    57 Hamilton Avenue  Suite 301
    Hopewell, NJ 08525
    (609) 4661222
    (609) 4661223 (fax)
    Attorney ID: 047451996
    Attorney for plaintiffs
                                          
    Andreana Kavadas, et al,

    Plaintiff

             vs.

    Raymond P. Martinez, et al,

    Defendant<x-tab>       </x-tab>::::::::::<x-tab>      </x-tab>SUPERIOR COURT OF NEW JERSEY
    LAW DIVISION - MERCER COUNTY
    DOCKET NO. MER-L-1004-15

    Civil Action


    CERTIFICATION OF COUNSEL
    in lieu of oral argument
                                          

    <x-tab>        </x-tab>David Perry Davis, of full age, hereby certifies as follows:
    1. I am the attorney for plaintiffs in this matter. I am personally familiar with all the facts alleged herein. I submit this certification as there was no request for oral argument, to summarize the pleadings and state plainly this office's position as to the issues as would have been done at oral argument.
    <x-tab>        </x-tab>2. The Court instructed in paragraph six of its January 8, 2019 order that counsel for the AOC was to confer with plaintiffs' counsel as to a proposed mechanism for appointing counsel for indigent child support obligors by February 8, 2019. Counsel for the AOC requested an extension on this date, which plaintiff's counsel agreed to.
    <x-tab>        </x-tab>3. Beyond asking for this extension, there was no "conferring" whatsoever as to this issue. Instead, on the adjourned date, defendants filed a completely frivolous motion, lacking in any legal or equitable basis.
    <x-tab>        </x-tab>4. Even accepting as true defendants' false premise - that the AOC lacks the authority to draft procedures to bring defendants into compliance with the Constitution - the issue could have been remedied by an email or call wherein we could have agreed to modify the court's order to require that the DFD, rather than the AOC, draft out the procedures.
    <x-tab>        </x-tab>5. As explained in the brief, this was the initial position asserted by plaintiffs when the complaint was filed, until defendants strenuously asserted at oral argument that the AOC was the correct party, and then refused to move forward with mediation if the AOC were not made a party. Plaintiffs reluctantly agreed to amended the complaint to include the AOC. Defendants now ask this court to hold that the AOC in fact is powerless to implement the changes the court correctly held are required.
    <x-tab>        </x-tab>6. As a result of this motion being filed, I had to put aside work for clients who need my services, and spend a day and half getting out the boxes of discovery, review the Cooperative Agreement between the AOC and DFD, review 124 pages of the Administrative Code, and do intensive legal research to sort out exactly who has the authority to implement the changes this court correctly ruled are necessary.
    <x-tab>        </x-tab>7. It is not a close question, and it is very hard to accept that anything explored in the annexed brief was news to defendants. I believe at this point that defendants only goal is to delay the implementation of the court's decision, just as they refused to address the issues without suit being filed in the first place, then delayed the adjudication of the suit by attending mediation when there was no settlement authority, then sought long dates and adjournments on every submission. I will not go into what occurred at the most recent mediation session, which defendants "required" over six weeks to prepare for, but at some point "good faith" and "bad faith" have to matter. Prior to this motion being filed and after mediation, defendants requested an additional 30 days over and above what the rules provide to answer the pending counsel fee application. This office, for the first time, objected to an extension request. I then received this motion which, as the court will see upon review of the briefs, had no basis but required an intensive time commitment to respond to.
    As to DAG's
    <x-tab>        </x-tab>8. As I have stated at every frustrating turn, I in no way blame the assigned Deputy Attorneys General who have represented defendants. They have been friendly, professional, and reasonable. Their explanations that they are "only following orders" are completely sincere and credible.
    <x-tab>        </x-tab>9. I don't know who the decision-makers are or what the motivation is, but the bottom line is that this matter, which should have resolved based on well-sourced correspondence in 2014, is being heavily resisted and fought at every turn, to the detriment of human beings and the Constitution.
    As to cross motion
    <x-tab>        </x-tab>10. As set forth in the brief, plaintiff's cross application should be granted. Every day that goes by sees 54 more people harmed by current unconstitutional, illegal system. For some of those people, the economic damage will be lifelong.
    <x-tab>        </x-tab>11. The above-referenced Case Management Order contained a requirement that a report be made to the Court and plaintiffs' counsel as to ceasing the automatic suspension of licenses no later than January 31, 2019. As with the failure to confer as to a proposed mechanism for appointing counsel, the date came and went with no action and no communication. This is contempt.
    <x-tab>        </x-tab>12. Aside from its negative effect on our state's support collection rate, the current counterproductive and illegal system is causing real devastation to innocent people. I have sat in courtrooms and watched the pain and humiliation of people who are being hamstrung from being able to support their children by having their licenses unfairly and unconstitutionally taken without a hearing. The vast majority are poor and powerless souls in depressing situations. Over three quarters of them are people of color. They are, in sum, the people our court system should be protecting, not persecuting. And, months after the court's recognition of the flawed nature of the current procedures, it is precisely the same today as it was on December 6, 2018.
    <x-tab>        </x-tab>13. This is distressing. While human suffering doesn't control a court's decision as to whether a process is lawful and constitutional, it is disheartening that those with the power to change it have, for reasons unknown, dug their heels in and refused to expeditiously take the actions this court has held are mandatory in spite of what it is doing to human beings.
    <x-tab>        </x-tab>14. When in court in January, I imagined this case was essentially over and those in power would do what needs to be done to quickly address the issues and there would be rapid, systemic improvement. I accepted without question the defendants' representation that it would be impossible to make the changes the court has ordered more quickly than August 1.
    <x-tab>        </x-tab>15. Having spoken to several computer professionals and system administrators, I do not now believe those representations, at least insofar as they speak to promptly ending the automatic suspension process. I believe the DFD has the power to stop the transmission of automatic suspension orders within 48 hours (leaving only suspension orders arrived at after a hearing where there was a finding it would be coercive). On its end, I believe the MVC could decline to implement those orders as doing so has been held to be illegal and unconstitutional.
    <x-tab>        </x-tab>16. I am now convinced that this is not a situation where the defendants can't do this - it's that, for whatever reasons, they refuse to do it. I ask the court to take whatever steps are necessary to compel defendants to comply and implement its decision without further delay.
    <x-tab>        </x-tab>17. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements are willfully false, I am subject to punishment.

         </x-sigsep>



    Original Message


  • 11.  RE: Support related license suspensions / Civil Rights Action

    Posted 02-28-2019 12:04 AM
    The opposition and cross motion are done and filed. For those with interest in the issue of counsel being appointed (who will do it, how the system will be set up, etc), the motion and cross motion are online at www.dpdlaw.com/kavadas . Thank you for the comments and suggestions. Not sure why they're always off-list.

    When I filed Pasqua 18 years ago, I got a call from another lawyer named David Davis (there's six of us), saying I needed to distinguish myself somehow, as he didn't want to be confused with some nut who was suing the system.

    I called him back after I won in 2006 and asked if my winning changed his mind on that.

    He said no.


    Well, to each his own - thanks for the support and comments.


    <x-sigsep></x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223




    Original Message


  • 12.  RE: Support related license suspensions / Civil Rights Action

    Posted 03-05-2019 11:05 AM
    Is it permissible to reveal to a court that an adversary came to mediation with $0 settlement authority? I realize that any offer made would not be admissible, but is having "no authority" different?

    The decision was issued 12/7/2018. In a case management conference in early January, Judge Jacobson urges us to talk and see if we can resolve the counsel fee issue. We try, but there's "no authority" to settle.

    Judge Anklowitz was asked to mediate it. The State said they needed until late February to meet (?). We meet and Judge Anklowitz had obviously read and digested the entire 187 page decision as well as the motion for fees with letter brief and 60 pages of time sheets and attachments. He'd researched the law himself on some of the issues, and did an excellent job meeting with us together and individually, pointing out the strengths and weaknesses, etc. He made a suggestion, a lot less than I'm asking for, and I was amenable to it. The DAG says "there's "no authority" and asks for an adjournment into March.

    The adjourned second meeting was this morning. Surprise, surprise, there's still "no authority."

    Judge Anklowitz was displeased, to put it lightly. He offered that he will not again volunteer to mediate cases with the AG's office involved. So, the net effect of mediation is a four month delay, with the motion now scheduled for mid-April.

    Not incidentally, this is exactly what the AG's office did on the merits. I offered to attend mediation. The state agreed. Needed a long date. Then needed a second date, at which it announced it couldn't move forward without the AOC being joined as a defendant and having its own counsel present. I file a motion to amend and it's joined. We return to mediation. There's no new counsel was there for the AOC - same DAG. Who then says there's "no authority" to discuss and resolve the merits. So, the net effect of mediation was a seven month delay.

    Not incidentally, after insisting that the AOC be joined as a necessary party, defendants have now filed a motion claiming Judge Jacobson doesn't have the authority to refer the issue of developing a system for appointing counsel to it: http://www.dpdlaw.com/kavadas . Aside from the obvious estoppel issue, it's utterly frivolous.

    I would, obviously, like to tell Judge Jacobson what happened. I think "no authority" is different from even a ridiculously low off. Am I right?

    (And in the meantime with all these delays, 54 people, 48 of whom are indigent, are having their license suspended every day with no hearing and no notice.)



    <x-sigsep></x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223




    Original Message


  • 13.  RE: Support related license suspensions / Civil Rights Action

    Posted 03-05-2019 11:33 AM

    I agree David.  In my opinion, that is not mediating in good faith and I do not think that you are precluded by confidentiality from revealing this to the judge.  There are many mediators who refuse to accept cases in which the Attorney General's office is involved because of this very reason.  They come to the table with no authority. Yes, it is a bureaucracy they are representing, but there should be an individual at the mediation who can meaningfully discuss options for settlement. 

     

     

     

    Lynn B. Norcia Esq.

    Starr Gern Davison & Rubin, PC

    105 Eisenhower Pkwy.

    Roseland, NJ 07068

    Tel. 973-403-9200

    Fax. 973-226-0031

    [email protected]

     




    Original Message


  • 14.  RE: Support related license suspensions / Civil Rights Action

    Posted 03-05-2019 08:55 PM

    David,

    I think I jumped the gun with my immediate response to your initial question about revealing whether the State sent someone to the mediation who had some settlement authority.  It might not be as clear cut as my initial reaction led me to state.  As to court referred mediations pursuant to Court R. 1:40-4(g) "Attorneys and parties have an obligation to participate in the mediation process in good faith and with a sense of urgency in accordance with program guidelines."  Additionally, the mediator, Judge Anklowitz in this case, "may require the participation of persons with negotiating authority." Id.

     

    Evidentiary Privilege in court referred mediations is governed by R. 1:40-4(c) and states that "A mediation communication is not subject to discovery or admissible in evidence in any subsequent proceeding except as provided by the New Jersey Uniform Mediation Act, N.J.S.A. 2A: 23C-1 to 13. A party may, however, establish the substance of the mediation communication in any such proceeding by independent evidence."  Therefore, one option is to show their lack of good faith negotiations, and failure to send anyone with settlement authority,  by independent evidence if you can. 

     

    This issue is one about which I feel strongly since I used to mediate for the Essex Superior Court in Children in Court Cases all the time.  The AG's office, representing DCPP, was famous for sending the case worker on a case who had no "settlement authority."  In those cases the settlement authority did not deal with dollars and cents, but rather about whether the Division would accept a resolution of Kinship Legal Guardianship with a relative rather than pressuring a relative to support termination of parental rights followed by adoption, or whether the Division would agree to reconsider its review of a potential relative caretaker, etc.  We had to write it into the policies and protocol that they had to come to the table with someone who had some authority to consent to the mediation agreement.     

    I hope this helps.  Now that I am not longer a DAG, I can see why people get so frustrated with them!

     

    Lynn B. Norcia Esq.

    Starr Gern Davison & Rubin, PC

    105 Eisenhower Pkwy.

    Roseland, NJ 07068

    Tel. 973-403-9200

    Fax. 973-226-0031

    [email protected]

     




    Original Message


  • 15.  RE: Support related license suspensions / Civil Rights Action

    Posted 03-05-2019 11:48 AM
    Dave -

    It is the content of settlement negotiations ("statements or conduct...in settlement negotiations") that is protected - I think what you are describing is basically a refusal to engage in the negotiation. I would reveal it to the judge.

    - Megan

    ------------------------------
    C. Megan Oltman Esq.
    Princeton NJ
    (609) 924-2044
    ------------------------------

    Original Message


  • 16.  RE: Support related license suspensions / Civil Rights Action

    Posted 03-05-2019 04:05 PM

    David,

    "No More Mr. Nice Guy!"

                Alice Cooper, 1973

     

    Regards,

    Ed

     

    * * *

    Edward J. Zohn, Attorney at Law

    Zohn & Zohn, LLP; 7 Mount Bethel Road, Warren NJ 07059

    908.791.0312 office; 908.428.7988 direct; 908.660.4866 fax

    "Leges sine moribus vanae" (Laws without morals are useless) - U. of Penna. Motto

    www.zohnlaw.com

     




    Original Message


  • 17.  RE: Support related license suspensions / Civil Rights Action

    Posted 03-05-2019 06:26 PM

    I don't think this all that simple.  David is talking about what is essentially a civil case and the rules may be different but I doubt it.  We all know there is case law that you cannot reveal what happened at an ESP because it is settlement negotiations.  Mandatory economic mediation is mediation.  It is confidential and privileged.  We all  have cases where the other side does not act in good faith (and it may be in a private mediation but that doesn't matter) and we have an issue with the costs and all of the related issues.  If someone can find an evidence rule that lets you put that in or some case that establishes a policy exemption, I would love to see it because I haven't been able to find it.

     

    Dale E. Console

    4478 Route 27

    P.O. Box 363

    Kingston, NJ 08528

    (609) 683-0003

    Best Lawyers   Best Lawyers   aacfl_logo-1-300x231   AAML logo with circle R (002)

     




    Original Message


  • 18.  RE: Support related license suspensions / Civil Rights Action

    Posted 03-05-2019 07:12 PM
    N.J.R.E. 408 makes settlement offers inadmissible "to prove liability for, or invalidity of, or amount of the disputed claim." I'm not trying to do any of those (e.g., not saying "hey, they offered a certain amount, so the claim must be valid!")

    Here, the issue isn't whether the claim is valid, it's whether people are acting in good faith. That there's a pattern of it only strengthens the argument that its been done repeatedly in this case for the purpose of delay.

    Absent some other provision that renders the failure to even have settlement authority inadmissible, I agree with the majority here that it comes in and I can mention it. Is there another such provision?

    I'd think public policy would be in favor of being able to reveal this. Judge Anklowitz spent hours reading the complex 187 page decision, the motion and letter brief on fees, and he'd obviously spent time going through the time sheets. He was prepared and met with each of us privately, going over the strengths and weaknesses of our cases (I assume that's what he did when he met with the DAG anyway). If a party is going to agree to mediation (and seek months to "prepare" and "discuss it with higher ups" when in fact there's no settlement authority... that should be known. They had no business going if it was a non-starter.


    <x-sigsep></x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223

    ____________________________

    N.J.R.E.
    408. Settlement Offers and Negotiations
    When a claim is disputed as to validity or amount, evidence of statements or conduct by parties or their attorneys in settlement negotiations, with or without a mediator present, including offers of compromise or any payment in settlement of a related claim, shall not be admissible to prove liability for, or invalidity of, or amount of the disputed claim. Such evidence shall not be excluded when offered for another purpose; and evidence otherwise admissible shall not be excluded merely because it was disclosed during settlement negotiations.




    Original Message


  • 19.  RE: Support related license suspensions / Civil Rights Action

    Posted 03-05-2019 07:24 PM

    For once in my life I am actually not disagreeing with you.  408 deals with settlements and does not rule out bad faith settlement negotiations.  But I think we have a different issue with mediation which is privileged under different law and different policy issues.  So 408 doesn't cover this (or at least I don't think it does).  So how do we, as a practical matter, get this stuff into evidence?

     

    Any one have a bright idea?

     

     

    Dale E. Console

    4478 Route 27

    P.O. Box 363

    Kingston, NJ 08528

    (609) 683-0003

    Best Lawyers   Best Lawyers   aacfl_logo-1-300x231   AAML logo with circle R (002)

     




    Original Message


  • 20.  RE: Support related license suspensions / Civil Rights Action

    Posted 03-05-2019 07:23 PM
    David,
    "No More Mr. Nice Guy!"
                Alice Cooper, 1973
    Regards,
    Ed

    Yeah, I'm not sure I had to go into the estoppel argument in opposing the defendants' motion claiming Judge Jacobson can't refer an issue to the AOC for implementation ( https://www.dpdlaw.com/kavadas.htm#Recon ) . The other legal proofs (the Administrative Code, the DFD-AOC Cooperative Agreement, etc) establish that she was well within her authority.

    The estoppel argument -- pointing out that the AOC is only there because the defendants insisted on their inclusion -- was more than icing, it was to show in no uncertain terms that the entire argument they're raising is premised on bad faith. As you said... "no more Mr. Nice Guy"... and the current DAG, former DAG, and the judge have all noted on the record how accommodating I   am  was.

    I'm no longer flabbergasted trying to understand why they're fighting something so hard that is hurting so many of the most powerless people out there and driving down NJ's collection rate. I now understand, having had some very off-the-record conversations -- it's all about the hubris of one or two decision-makers. They don't want a single judge or what they see as some wiseguy lawyer telling them what to do and they'll fight it to the end, regardless of who it hurts. Still tough to swallow that they'd do this, but at least I know what it is.


    <x-sigsep></x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223




    Original Message