As 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
------------------------------

It's been pointed out to me by someone who asked to (/has to) remain anonymous that I'm actually missing (or didn't focus on) the biggest SNAFU's in this Catch-22.

When an initial warrant is issued for nonpayment, what is the purpose of that warrant?  To bring the obligor to court on an expedited basis and determined reason for nonpayment and conduct an ability to comply hearing, right?

So when that warrant is issued and we automatically suspend the driver's license, haven't we just made it far more difficult (sometimes impossible) for the obligor to appear in court?  Putting aside the inability to drive to a job interview and all the other self-defeating aspects of automatic DL suspensions... the whole purported reason for entering a warrant (to compel appearance) is frustrated by the effect of entry of the warrant.  Wow - the very definition of a Catch-22.


At this point, I'm thinking litigation.  As I recall from law school, a Driver's License is a hybrid right/privilege.  If there is no additional coercive effect to suspending a license over and above the entry of a warrant, and if the effect of the entry of a warrant is contrary to the expressed purpose of entering a warrant, and if all of this is done without a hearing ... civil rights are implicated and are being violated.  Bless 42 US 1983 and the NJ Civil Rights Act.


So, bottom line:  PLAINTIFF NEEDED. I'll start looking; preference would be -

1. Female (not a coincidence that Pasqua's first name is Anne.  Makes it harder for the press to turn it into a gender issue).

2. Facing a warrant for support and lacking ability to pay.

3. Needs license to find work, see children, attend court.

Suit will seek an injunction against court suspending driver's license of plaintiff (and plaintiff class), declaring that (in the absence of a showing that it has effective, additional coercive effect)  the automatic suspension of licenses without a hearing is violative of civil rights of class members.

As always, any thoughts (on list or off) appreciated.


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

David:
You are a tireless advocate for the poor but I respectfully disagree with you. The license suspension provision is neither stupid, racist or counter-productive.

Norman Epting, Esq.
Somerville, NJ


Original Message------

It's been pointed out to me by someone who asked to (/has to) remain anonymous that I'm actually missing (or didn't focus on) the biggest SNAFU's in this Catch-22.

When an initial warrant is issued for nonpayment, what is the purpose of that warrant?  To bring the obligor to court on an expedited basis and determined reason for nonpayment and conduct an ability to comply hearing, right?

So when that warrant is issued and we automatically suspend the driver's license, haven't we just made it far more difficult (sometimes impossible) for the obligor to appear in court?  Putting aside the inability to drive to a job interview and all the other self-defeating aspects of automatic DL suspensions... the whole purported reason for entering a warrant (to compel appearance) is frustrated by the effect of entry of the warrant.  Wow - the very definition of a Catch-22.


At this point, I'm thinking litigation.  As I recall from law school, a Driver's License is a hybrid right/privilege.  If there is no additional coercive effect to suspending a license over and above the entry of a warrant, and if the effect of the entry of a warrant is contrary to the expressed purpose of entering a warrant, and if all of this is done without a hearing ... civil rights are implicated and are being violated.  Bless 42 US 1983 and the NJ Civil Rights Act.


So, bottom line:  PLAINTIFF NEEDED. I'll start looking; preference would be -

1. Female (not a coincidence that Pasqua's first name is Anne.  Makes it harder for the press to turn it into a gender issue).

2. Facing a warrant for support and lacking ability to pay.

3. Needs license to find work, see children, attend court.

Suit will seek an injunction against court suspending driver's license of plaintiff (and plaintiff class), declaring that (in the absence of a showing that it has effective, additional coercive effect)  the automatic suspension of licenses without a hearing is violative of civil rights of class members.

As always, any thoughts (on list or off) appreciated.


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

Norman -

Thanks very much for responding.  In a situation likes this, as much as I may have been venting / soap-boxing by posting the message, I am also very much looking for someone to tell me where the ideas / legal theories are wrong.  I'd much rather find out here than in an adverse decision from Judge Jacobson (who would be the one to hear a civil rights challenge).

I'd very much appreciate it if you (or others) would advise as to specifically what holes you see in it.  Do you see DL suspensions as having an additional coercive effect over and above the entry of an arrest warrant?  If so, what's the belief based on?  Do you see a justification for the automatic suspension of a license when support isn't paid, rather than on a case-by-case basis that the suspension will have an additional coercive effect?

Is there some reason to believe that suspensions don't perpetuate a cycle of poverty and hopelessness by (1) depriving the obligor of the opportunity to drive to job interviews or work or court appearances for ability to comply hearings,  (2) driving up insurance rates to where an obligor absolutely can't afford to register a car via the increases when a license has been suspended and reinstated by DMV, (3) Render the obligor unemployable in any industry that requires use of a company vehicle since, even if they come up with the $100 restoration fee to have a license reinstated, the insurance rates to keep that obligor on payroll as a driver become too expensive for the employer.

Again- thanks for responding.  I would be most interested in hearing where this is wrong.




And, as far as the issue being racist, I was clear that I don't think it was designed that way; but that's how it shakes out.  Go sit in on the "pay or stay" hearings and look at the racial make-up.  6% of white people in NJ live under the poverty line (a whopping $224 per week for a single person, which pretty clearly isn�t enough for someone to survive on http://www.bls.gov/opub/mlr/1997/09/atissue.pdf).  45% of those under the poverty line are Black or Hispanic (http://kff.org/other/state-indicator/poverty-rate-by-raceethnicity/)  My unofficial anecdotal observations show that this extrapolates almost perfectly to those in the orange jumpsuits being subjected to jail "until they pay."  I'm sure no one designed it with race in mind, but the fact that it correlates with the racial breakdown on poverty says something pretty loudly about why these folks aren't paying..... that it's primarily due to poverty, not a refusal to pay.  My primarily criticism of the system isn't that it's intentionally racist, but that it is based on a completely blind "let them eat cake" mentality (that the problem is a refusal to pay, not an inability to both pay and to meet even minimal survival needs).  "If we automatically suspend a license in addition to entering an arrest warrant, then they'll pay!"  This attitude underlies so much of the system and is so out of touch with reality that it qualifies as the reincarnation of Marie Antoinette, in my humble opinion.

There's obviously bigger societal issues involved here.  While I don't think we're going to solve the poverty issues in our country, we can at least take our collective boot off the throats of defaulted support obligors by ending an aspect of the system that does nothing positive and hurts them, the custodial parents, and (ultimately) the kids who need the support that automatic DL suspensions make it harder (or impossible) to provide.

Sorry, jumped on the soapbox again.  A response to the questions would be very much appreciated.

BTW, the New Jersey Institute for Social Justice may co-counselling on a suit.  Still waiting to hear back from the NJ-ACLU.



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

David,

You incorrectly assumed that I am for license suspension. It is such a significant taking that due process requirements should be met. I think that you are going to win on a constitutional challenge. But that doesn't mean that license suspension is "stupid, racist or counterproductive Catch 22". The main point that I want to make is that it is just a short walk from the soap-box to the pulpit. Venting in this kind of forum is counterproductive.

Bench warrants for failure to appear and for failure to pay pursuant to court order seem reasonable. Litigants are given advance notice of these possibilities. There is a serious issue concerning the notice given on the possibility of suspension of license. And certainly doing anything on a case by case basis makes more sense that a blanket, automatic, or mechanized approach.



David you are a good trial and appellate lawyer but it is a little over the top to say "... suspensions...perpetuate a cycle of poverty and hopelessness".

The insurance implications doesn't seem like a compelling argument but the due process argument is a winner.





I also think you are "barking" up the wrong tree on the racist angle. I agree with you that most of the people appearing in child support court are poor. And I agree with you that most poor people are people of color. That's the nature of our reality.




I understand that you are passionate. But really, you want to ascribe a motivation to certain decision makers that they are reincarnations of Marie Antoinette. Wow. There is nothing humble in that opinion. Who are you? The reincarnation of St. Francis.



So to sum up, if you can tone down your rhetoric I think that you are going to win on your challenge. Good luck.





Norman Epting, Esq.


Somerville, NJ


Original Message------

Norman -

Thanks very much for responding.  In a situation likes this, as much as I may have been venting / soap-boxing by posting the message, I am also very much looking for someone to tell me where the ideas / legal theories are wrong.  I'd much rather find out here than in an adverse decision from Judge Jacobson (who would be the one to hear a civil rights challenge).

I'd very much appreciate it if you (or others) would advise as to specifically what holes you see in it.  Do you see DL suspensions as having an additional coercive effect over and above the entry of an arrest warrant?  If so, what's the belief based on?  Do you see a justification for the automatic suspension of a license when support isn't paid, rather than on a case-by-case basis that the suspension will have an additional coercive effect?

Is there some reason to believe that suspensions don't perpetuate a cycle of poverty and hopelessness by (1) depriving the obligor of the opportunity to drive to job interviews or work or court appearances for ability to comply hearings,  (2) driving up insurance rates to where an obligor absolutely can't afford to register a car via the increases when a license has been suspended and reinstated by DMV, (3) Render the obligor unemployable in any industry that requires use of a company vehicle since, even if they come up with the $100 restoration fee to have a license reinstated, the insurance rates to keep that obligor on payroll as a driver become too expensive for the employer.

Again- thanks for responding.  I would be most interested in hearing where this is wrong.




And, as far as the issue being racist, I was clear that I don't think it was designed that way; but that's how it shakes out.  Go sit in on the "pay or stay" hearings and look at the racial make-up.  6% of white people in NJ live under the poverty line (a whopping $224 per week for a single person, which pretty clearly isn�t enough for someone to survive on http://www.bls.gov/opub/mlr/1997/09/atissue.pdf).  45% of those under the poverty line are Black or Hispanic (http://kff.org/other/state-indicator/poverty-rate-by-raceethnicity/)  My unofficial anecdotal observations show that this extrapolates almost perfectly to those in the orange jumpsuits being subjected to jail "until they pay."  I'm sure no one designed it with race in mind, but the fact that it correlates with the racial breakdown on poverty says something pretty loudly about why these folks aren't paying..... that it's primarily due to poverty, not a refusal to pay.  My primarily criticism of the system isn't that it's intentionally racist, but that it is based on a completely blind "let them eat cake" mentality (that the problem is a refusal to pay, not an inability to both pay and to meet even minimal survival needs).  "If we automatically suspend a license in addition to entering an arrest warrant, then they'll pay!"  This attitude underlies so much of the system and is so out of touch with reality that it qualifies as the reincarnation of Marie Antoinette, in my humble opinion.

There's obviously bigger societal issues involved here.  While I don't think we're going to solve the poverty issues in our country, we can at least take our collective boot off the throats of defaulted support obligors by ending an aspect of the system that does nothing positive and hurts them, the custodial parents, and (ultimately) the kids who need the support that automatic DL suspensions make it harder (or impossible) to provide.

Sorry, jumped on the soapbox again.  A response to the questions would be very much appreciated.

BTW, the New Jersey Institute for Social Justice may co-counselling on a suit.  Still waiting to hear back from the NJ-ACLU.



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

From: "David Perry Davis via New Jersey State Bar Association" <[email protected]>
To: [email protected]
Subject: Family Law : Support related license suspensions / ending a stupid, racist, counter-productive Catch-22

As 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
------------------------------



From: "David Perry Davis via New Jersey State Bar Association" <[email protected]>
To: [email protected]
Subject: RE: Family Law : Support related license suspensions / ending a stupid, racist, counter-productive Catch-22

It's been pointed out to me by someone who asked to (/has to) remain anonymous that I'm actually missing (or didn't focus on) the biggest SNAFU's in this Catch-22.

When an initial warrant is issued for nonpayment, what is the purpose of that warrant?  To bring the obligor to court on an expedited basis and determined reason for nonpayment and conduct an ability to comply hearing, right?

So when that warrant is issued and we automatically suspend the driver's license, haven't we just made it far more difficult (sometimes impossible) for the obligor to appear in court?  Putting aside the inability to drive to a job interview and all the other self-defeating aspects of automatic DL suspensions... the whole purported reason for entering a warrant (to compel appearance) is frustrated by the effect of entry of the warrant.  Wow - the very definition of a Catch-22.


At this point, I'm thinking litigation.  As I recall from law school, a Driver's License is a hybrid right/privilege.  If there is no additional coercive effect to suspending a license over and above the entry of a warrant, and if the effect of the entry of a warrant is contrary to the expressed purpose of entering a warrant, and if all of this is done without a hearing ... civil rights are implicated and are being violated.  Bless 42 US 1983 and the NJ Civil Rights Act.


So, bottom line:  PLAINTIFF NEEDED. I'll start looking; preference would be -

1. Female (not a coincidence that Pasqua's first name is Anne.  Makes it harder for the press to turn it into a gender issue).

2. Facing a warrant for support and lacking ability to pay.

3. Needs license to find work, see children, attend court.

Suit will seek an injunction against court suspending driver's license of plaintiff (and plaintiff class), declaring that (in the absence of a showing that it has effective, additional coercive effect)  the automatic suspension of licenses without a hearing is violative of civil rights of class members.

As always, any thoughts (on list or off) appreciated.

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

For all interested, attached (and below, without attachment) is correspondence regarding upcoming suit on license suspension issue.   Just need a plaintiff at this point.

In Pasuqa, the SCT cited judicial immunity as as issue, especially as to the denial of the request for counsel fees under 42 USC 1983 and the New Jersey Civil Rights Act.  Ergo, the Commissioner of MVS is a non-judicial defendant.

Also, the SCT pointed out that the AOC had no notice that it was violating the civil rights of the obligors in Pasqua.  This letter also seeks to address that issue.

If the court eventually agrees that the Constitution was violated and orders reimbursement of all the restoration fees paid by those who sufferred an illegal license suspension, it would be several million dollars (roughly $2,200,000 per year in restoration fees) they'd have to repay.  I'd love think this would have some effect on the parents who would receive the refunds (although paid by the noncustodial parents, I think any refund would be legitimately attached by probation for unpaid CS), in all probability 90% of it would be paid to the Department of Social Services for welfare grants.

As always, any comments, thoughts, etc are most appreciated.

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

 

The Law Office of
David Perry Davis
COUNSELLOR AT LAW
112 West Franklin Ave
Pennington NJ 08534-9541
(609) 737-2222
Fax: (609) 737-3222
E-mail: [email protected]
------------------------------------------------------------------------------

January 26, 2015

Commissioner Raymond P. Martinez
New Jersey Motor Vehicle Commission
P.O. Box 160
Trenton, NJ 08666
Via Delivery Confirmation Mail, Item No. _________________________

Dear Mr. Martinez:

I'm an attorney in Pennington, New Jersey.  In conjunction with the New Jersey Institute for Social Justice, I am in the process of preparing a civil rights suit regarding the issue of the automatic suspension of driver's licenses when a support-related warrant is issued.

Currently, when an obligor fails to pay support (or make a required lump sum payment), an arrest warrant is issued.  The sole purpose of this warrant (pursuant to AOC Directive #02-14) "is to bring the obligor before the court on an expedited basis."  The system as it now operates issues a warrant requiring a support obligor's expedited physical appearance and, at the same time (by operation of law and without a hearing) suspends the person's ability to appear in court by suspending his/her driver's license.  The obligor also, of course, is then unable to drive to job interviews, drive to work, or hold any job that requires operating a motor vehicle, thus making the payment of support essentially impossible.

While self-defeating absurdity alone does not implicate civil rights, the suspension of a driver's license without a hearing does.  It has been well established by our Supreme Court that the suspension of a driver's license is a "consequence of magnitude" mandating a hearing and the appointment of counsel (without cost to one who is indigent).  See e.g., Pasqua v. Council, 186 N.J. 127 (2006), Rodriguez v. Rosenblatt, 58 N.J. 281 (1971).  The current system, where licenses are suspended based solely on a failure to pay without a hearing, without a contemporaneous finding of an ability to pay, and without counsel, is violative of the Constitutional rights of obligors / drivers.

While I understand that the MVS is following a court order when suspending a driver's license as a result of the issuance of a warrant, you took an oath upon entering office that you would uphold the Constitution and, in any case, are a state actor.  I
submit that compliance with this oath (and your duty as a state actor) requires that you cease and desist from illegally suspending driver's licenses where there is no evidence before the Division that the driver's Constitutional rights were adhered to.  Additionally, I respectfully request that you refund all license reinstatement charges that have been paid as a result of any unconstitutional license suspensions and (retroactively) remove those suspensions from the drivers' abstracts.

If there was any lack of knowledge as to the unconstitutional nature of these suspensions prior to your receipt of this letter, I respectfully submit that, at least from the date of your receipt of this letter onward, any such unconstitutional actions will be knowing and wilful.

Second, I write pursuant to the Open Public Records Act to request a copy of all information supplied that was used in the creation of the New Jersey Judiciary Report to the Legislature on the Suspension of Licenses Due to Child Support Arrears - State Fiscal Year 2006, a copy of which I attach for your reference.  If the information cited therein has been compiled (whether supplied to the Judiciary or not) since 2006, I request the more recent data instead of the 2006 data.

I thank you for attention to this matter.  Please feel free to contact me at the above email address or telephone number if there are any questions.

Respectfully,




David Perry Davis, Esq.

Cc:  Brenda Beacham (AOC)
<x-tab>        </x-tab>Joanne Dietrich (AOC)
<x-tab>        </x-tab>Liz Domingo (AOC)
<x-tab>        </x-tab>Hon. Glenn Grant, JAD (AOC)
<x-tab>        </x-tab>Chief Justice Stuart Rabner (Supreme Court of New Jersey)
<x-tab>        </x-tab>Scott Welfel, Esq., New Jersey Institute for Social Justice
<x-tab>        </x-tab>Edward Barocas, Esq., ACLU-NJ
<x-tab>        </x-tab>Various press 

Update on the status of the suit regarding licenses suspensions.  First... the amount of work involved in doing this, and hopefully doing it right, is just mind boggling.  Aside from reviewing cases, I've spoken with the ACLU, emailed more people than I can easily count, and am obtaining and reviewing pleadings including the State's motions to dismiss in the majority of all the New Jersey Civil Rights Act cases.  Trying to avoid pitfalls and anticipate the defenses and meet them up front.  Civil Rights is an intimidating area of the law.  The complaint is being drafted along with an order to show cause and brief.  Astounding amount of time.  Anyway, on the merits:

There are, apparently, two methods by which a driver's license can be suspended as a result of support arrears (set out in NJSA 2A:17-56.41-43 and R. 5:7-5). 

The first requires that probation notify an obligor that a license suspension is being considered when arrears in excess of six months accrue.  The obligor can request a hearing and, if they show hardship (or for any other number of reasons cited, including that DL suspension would be "inequitable"), the obligor's license will not be suspended.  Except in that it does not provide a mechanism for the appointment of counsel, it is a fair and just process, giving the obligor the ability to be heard.

The second suspension method is that a DL is suspended by operation of law when a "bring-to-court" CS warrant is issued.  If the obligor does not make the required payment by the established date, the DL is automatically suspended.  No hearing.  No further notice.  No opportunity to object.  No finding required as to (or even an inquiry into) the ability to pay and therefore whether non-payment is willful.  Obviously, no counsel is appointed.

I think (continuing to research) that the first method provides procedural due process, in that a hearing is held with an opportunity to be heard, but that it violates substantive due process in that no counsel is appointed in spite of a "consequence of magnitude" being on the table.  The second method violates both procedural and substantive due process.  My current question - if anyone wants to sound in (on-list or off):  To prevail under the New Jersey Civil Rights Act, we have to show that a substantive (not procedural) State right is at issue.  The Supreme Court has long held that the suspension of a driver's license is a "consequence of magnitude" requiring a proper hearing including the appointment of counsel, but at the proceeding where the orders are entered saying "pay $XX by XX date or a bring-to-court warrant will issue" (and the DL is then suspended automatically upon issuance of the warrant), no counsel is appointed, there is no finding required of an ability to pay, and there is no opportunity for a pre-suspension hearing.  When the first method is used and a hearing held, no counsel is appointed.  Does these procedures implicate substantive due process to the extent that we can obtain enforcement under the Civil Rights Act (CRA), citing the imposition of a "consequence of magnitude" without separately demonstrating a private cause of action?  Is there a danger that the complaint here really revolves around procedural due process (i.e., the failure to conduct a meaningful hearing), or does the resulting suspension of a driver's license (automatically or after a hearing with no counsel appointed) implicate substantive due process, thus authorizing an action under the CRA?  I don't want to lengthen this, but suffice it to say it would be better to stay away from procedural due process claims, which would require reliance on 42 USC � 1983 rather than the CRA.  Is there an overlap between procedural and substantive due process?  That is, can the deprivation of a hearing (the automatic suspensions on issuance of a warrant), which sounds like a procedural due process violation, also be a substantive due process violation?

Is seeking a refund of restoration fees paid as a result of unconstitutional suspensions the equivalent of seeking "damages"?  Seeking damages opens up a Pandora's box of immunity defenses, some of which I don't think can be overcome.  Is a refund = damages?

I want to get this right (for all the reasons in my original rants on the topic).  It's scary to see cases where what should have been a legitimate case where blown by lawyers' errors.

I appreciate all the comments (on-list and off).  If anyone has any thoughts or wants to contribute to any of the legwork still needed (locating an ideal plaintiff), please feel more than free to let me know.

I'd anticipate that the complaint and order to show cause are going to be filed in the next 3-4 weeks.  I'll probably post a draft here for comments when it's almost ready.

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

David,

This is a worthy cause and you are doing a great work in the pursuit of justice. But you continue to label this battle as ending "a stupid, racist, counter-productive Catch-22" practice. It is not "stupid" because the practice is authorized by statute and court rule. As you point out it is most probably unconstitutional and I completely agree. The practice though is not racist or sexist for that matter. It is applied universally on every race and gender of CS obligor. My guestimation is that 20,000 or more obligors statewide are currently under the shadow of this provision of their court orders. That's a conservative estimate; the actual number could be much higher. The Probation Divisions have the ability to come forward with the exact data on the number of obligors and cases with two-missed BW status who are supervised by Probation. The actual number of people damaged by the two-missed payment provision is a huge number.

You indicate that there are, apparently, two methods by which a driver's license can be suspended as a result of support arrears (set out in NJSA 2A:17-56.41-43 and R. 5:7-5). The third way occurs if a BW is issued for failure to appear. And it is not just driver's license but all state issued license that are affected.

I found that Probation initiated license suspensions were very rare.

Many times two-missed payment orders are the result of defaults as part of a failure to appear disposition.

I strongly believe that due process can only be served by providing counsel. However that is not the standard right now. I believe that this cause of action you are bringing will clarify this issue. I believe that everyone should be entitled to a full and complete ability to comply hearing before such a harsh sanction should be applied to their case.

I absolutely agree that the damages sought for all who had their license suspended should be a refund of the restoration fees paid as a result of unconstitutional suspensions.

I am really looking forward to seeing what you file.

Norman Epting
Somerville Solo
732-979-7279
[email protected]


Original Message------

Update on the status of the suit regarding licenses suspensions.  First... the amount of work involved in doing this, and hopefully doing it right, is just mind boggling.  Aside from reviewing cases, I've spoken with the ACLU, emailed more people than I can easily count, and am obtaining and reviewing pleadings including the State's motions to dismiss in the majority of all the New Jersey Civil Rights Act cases.  Trying to avoid pitfalls and anticipate the defenses and meet them up front.  Civil Rights is an intimidating area of the law.  The complaint is being drafted along with an order to show cause and brief.  Astounding amount of time.  Anyway, on the merits:

There are, apparently, two methods by which a driver's license can be suspended as a result of support arrears (set out in NJSA 2A:17-56.41-43 and R. 5:7-5). 

The first requires that probation notify an obligor that a license suspension is being considered when arrears in excess of six months accrue.  The obligor can request a hearing and, if they show hardship (or for any other number of reasons cited, including that DL suspension would be "inequitable"), the obligor's license will not be suspended.  Except in that it does not provide a mechanism for the appointment of counsel, it is a fair and just process, giving the obligor the ability to be heard.

The second suspension method is that a DL is suspended by operation of law when a "bring-to-court" CS warrant is issued.  If the obligor does not make the required payment by the established date, the DL is automatically suspended.  No hearing.  No further notice.  No opportunity to object.  No finding required as to (or even an inquiry into) the ability to pay and therefore whether non-payment is willful.  Obviously, no counsel is appointed.

I think (continuing to research) that the first method provides procedural due process, in that a hearing is held with an opportunity to be heard, but that it violates substantive due process in that no counsel is appointed in spite of a "consequence of magnitude" being on the table.  The second method violates both procedural and substantive due process.  My current question - if anyone wants to sound in (on-list or off):  To prevail under the New Jersey Civil Rights Act, we have to show that a substantive (not procedural) State right is at issue.  The Supreme Court has long held that the suspension of a driver's license is a "consequence of magnitude" requiring a proper hearing including the appointment of counsel, but at the proceeding where the orders are entered saying "pay $XX by XX date or a bring-to-court warrant will issue" (and the DL is then suspended automatically upon issuance of the warrant), no counsel is appointed, there is no finding required of an ability to pay, and there is no opportunity for a pre-suspension hearing.  When the first method is used and a hearing held, no counsel is appointed.  Does these procedures implicate substantive due process to the extent that we can obtain enforcement under the Civil Rights Act (CRA), citing the imposition of a "consequence of magnitude" without separately demonstrating a private cause of action?  Is there a danger that the complaint here really revolves around procedural due process (i.e., the failure to conduct a meaningful hearing), or does the resulting suspension of a driver's license (automatically or after a hearing with no counsel appointed) implicate substantive due process, thus authorizing an action under the CRA?  I don't want to lengthen this, but suffice it to say it would be better to stay away from procedural due process claims, which would require reliance on 42 USC � 1983 rather than the CRA.  Is there an overlap between procedural and substantive due process?  That is, can the deprivation of a hearing (the automatic suspensions on issuance of a warrant), which sounds like a procedural due process violation, also be a substantive due process violation?

Is seeking a refund of restoration fees paid as a result of unconstitutional suspensions the equivalent of seeking "damages"?  Seeking damages opens up a Pandora's box of immunity defenses, some of which I don't think can be overcome.  Is a refund = damages?

I want to get this right (for all the reasons in my original rants on the topic).  It's scary to see cases where what should have been a legitimate case where blown by lawyers' errors.

I appreciate all the comments (on-list and off).  If anyone has any thoughts or wants to contribute to any of the legwork still needed (locating an ideal plaintiff), please feel more than free to let me know.

I'd anticipate that the complaint and order to show cause are going to be filed in the next 3-4 weeks.  I'll probably post a draft here for comments when it's almost ready.

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

Norman -

I agree that I was a little overzealous in naming the thread.  As you may have noticed, I contacted the list admin and asked her to rename it, which she's done (thanks, Barbara).  Not the first time I went overboard, maybe it'll be the last, but I doubt it  :-)

I posted the original thread shortly after seeing the "New Jersey Judiciary Report to the Legislature on the Suspension of License Due to Child Support Arrears - State Fiscal year 2006" which contains the following: "as an indirect benefit, it has resulted in an additional revenue stream for the Motor Vehicle Commission."  That pushes my buttons in this as much as the overall self-defeating absurdity of it and the real damage it's doing to people's lives.  The census shows that better than 70% of people in arrears earn less than $8,000 per year.  These are the most vulnerable people out there - the poorest of the poor .... and their kids.  And to see it in black and white where they're gloating about "an indirect benefit" of "an additional revenue stream for the Motor Vehicle Commission" is aggravating.  Those $100 restoration fees would have been better spent on child support and as food on the table for the kids involved (with noncustodial parents who have the ability to drive to work, drive to interviews, drive to see their kids for parenting time, etc).

I certainly did not mean that any individual HO or judge was any of the things in the prior title of the thread.  I'm not being nice there - I'm not a nice guy on things like that.  If I thought it was the truth, I'd say so.  My vent is at the system, not the job that HO's and judges generally do.


I'd said that "there are, apparently, two methods by which a driver's license can be suspended as a result of support arrears (set out in NJSA 2A:17-56.41-43 and R. 5:7-5)."  You pointed out "The third way occurs if a BW is issued for failure to appear."  The "by operation of law" suspensions are in 2A:17-56.41 (the statute is below) and the Rule 5:7-5(e)(1) and Rule 5:7-5(e)(4) (also below). Is there a "third way" aside from these?  Please give me a cite if so.

You indicated that "And it is not just driver's license but all state issued license that are affected."  This is an excellent point.  What licenses would it include?  Contractors?  CPA's?  This may justify amendments to the complaint.

You also state you "found that Probation initiated license suspensions were very rare."  By this I assume you mean suspensions requested by Probation outside the context of a warrant are rare.  Please correct me if I'm wrong on that.

You also say that you "absolutely agree that the damages sought for all who had their license suspended should be a refund of the restoration fees paid as a result of unconstitutional suspensions."  The argument is going to have to be made that refunds of restoration fees aren't "damages" but are collateral consequences of rescinding warrants and, hopefully, reopening under Rule 4:50-1(f) the unconstitutional suspensions that have occurred.  If they're damages, there's a whole host of immunities that are going to make things difficult.  It's an issue we're still researching.

You say that you're really looking forward to seeing what I file.  I attach a draft to date of the brief and the "WHEREFORE" clause from the complaint.  Working on these, fine tuning them (and they both need more, and the brief is in outline form still) has taken the majority of this week...  I'll feel that pinch when the first comes around and I need to make the overhead for the month.  Anyway, any comments anyone wants to make are always welcome.  The ACLU and Larry Lustberg have spent time going over it all and answering questions on the phone this week, which has been a huge help.  As said - Civil Rights law is more complex than it seems, and blowing it would mean losing the chance to address the injustice.


BOTTOM LINE - as the WHEREFORE clause says, license suspensions need to happen only in the context of an Ability to Comply hearing, with appointed counsel, and only when the factors in the Rule have been proven, starting with 5:7-5(1)'s -- "(a) all appropriate enforcement methods have been exhausted..."  This iron-fisted nonsense that provides "an indirect benefit" of an "additional revenue stream for the Motor Vehicle Commission" needs to stop.  Ooopos, sorry, there I go again with the vent.  Don't take it personally this time.

My hope, btw, is that after it's filed, the defendants will agree to a settlement conference where we can make the needed changes and fix this.  I've been told that the points we've raised are valid and it needs to change, and that hopefully having a pending suit will make that happen without another fight like Pasqua was (6 years through 5 courts and 15 judges).

Finally... I was contacted by another Hearing Officer who is also supportive of this idea and shares the frustration, but who asked that her/his name not be used.  I salute you for saying what you have in public on this board.  People need to stand up and speak out when justice calls for it.


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



2A:17-56.41. Consequences of obligor's noncompliance, license suspension, revocation hearing.
  3. 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.

5:7-5. Failure to Pay; Enforcement by the Court or Party; Income Withholding for Child Support; Suspension and Revocation of Licenses for Failure to Support Dependents; Execution of Assets for Child Support; Child Support Judgments and Post-Judgment Interest

(e) Suspension and Revocation of Licenses for Failure to Support Dependents.

• (1) General Provisions. If a child support arrearage equals or exceeds the amount of child support payable for six months, or court-ordered health care coverage for a child is not provided within six months of the date that it is ordered, or the obligor fails to respond to a subpoena relating to a paternity or child support action, or a warrant for the obligor's arrest has been issued by the court due to the failure to pay child support as ordered, failure to appear at a hearing to establish paternity or child support, or failure to appear at a child support hearing to enforce a child support order, and said warrant remains outstanding, and the obligor is found to possess a license in the State of New Jersey, including a license to practice law, and attempts to enforce the support provisions through income withholding, withholding of civil lawsuit awards, and the execution of assets, when available, 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, stating that the obligor's licenses may be revoked or suspended unless, within 30 days of the postmark date of the notice, the obligor pays the full amount of past-due child support, 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. If a child support-related warrant exists, the license revocation or suspension will 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, or surrenders to the county sheriff or the Probation Division. 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. If the court issues a warrant for the obligor's arrest for failure to pay child support as ordered, or for failure to appear at a hearing to establish paternity or child support, or for failure to appear at a child support hearing to enforce a child support order, and said warrant remains outstanding, the Probation Division shall immediately notify the Motor Vehicle Commission of the warrant and the requirement to suspend the obligor's driving privileges pursuant to N.J.S.A. 2A:17-56.41.
• (4) License Suspension or Revocation Hearings. If the obligor requests a hearing, the Probation Division shall file a petition for a court hearing, which 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 proof that health care coverage for the child has been obtained or responds to the subpoena or surrenders to the county sheriff or the Probation Division, the license revocation process shall be terminated. The court shall suspend or revoke the obligor's licenses (if the obligor is an attorney licensed to practice law in New Jersey, the order shall notify the Supreme Court to suspend the obligor's license to practice law) if it finds that: (a) all appropriate enforcement methods have been exhausted, (b) the obligor is the holder of a license, (c) the requisite child support arrearage amount exists or health care coverage for the child has not been provided as ordered, (d) no motion to modify the child support order, filed prior to the date that the notice of the license suspension or revocation was sent by the Probation Division, is pending before the court, and (e) there is no equitable reason, such as involuntary unemployment, disability, or compliance with a court-ordered plan for the periodic payment of the child support arrearage amount, for the obligor's non-compliance with the child support order. If the court is satisfied that these conditions exist, it shall first consider suspending or revoking the obligor's driver's license prior to a professional or occupational license. If the obligor fails to appear at the hearing after being properly served with notice, the court shall order the suspension or revocation of all licenses held by the obligor except that if the obligor is an attorney licensed to practice law in New Jersey, the order shall notify the Supreme Court to suspend the obligor's license to practice law. In the case of a driver's license, if the court finds that the license revocation or suspension will result in a significant hardship to the obligor, to the obligor's legal dependents under 18 years of age living in the obligor's household, to the obligor's employees, or to persons, businesses, or entities to whom the obligor provides goods or services, the court may allow the obligor to pay 25% of the past-due child support amount within three working days of the hearing, establish a payment schedule to satisfy the remainder of the arrearages within one year, and require that the obligor comply with any current child support obligation. If the obligor agrees to this arrangement, no suspension or revocation of any licenses shall be ordered. Compliance with the payment agreement shall be monitored by the Probation Division. If the obligor has good cause for not complying with the payment agreement within the time permitted, the obligor shall immediately file a motion with the court and the Probation Division requesting an extension of the payment plan. The court may extend the payment plan if it is satisfied that the obligor has made a good faith effort to comply with the plan and is unable to satisfy the full amount of past-due support within the time permitted due to circumstances beyond the obligor's control. In no case shall a payment plan extend beyond the date that the dependent child reaches the age of 18. If the obligor fails to comply with the court-ordered payment schedule, the court shall, upon receipt of a certification of non-compliance from the Probation Division, and without further hearing, order the immediate revocation or suspension of all licenses held by the obligor. If the obligor is an attorney licensed to practice law in New Jersey, the order shall notify the Supreme Court to suspend the obligor's license to practice law. If required by existing law or regulation, the court shall order that the obligor surrender the license to the issuing authority within 30 days of the date of the order. 

It's been suggested by a more experienced mind than mine that the plaintiff class should include a child support recipient -- one of the legal theories involves who "directly benefits" from the statute and who is harmed by the current Due Process problems with the automatic license suspension upon entry of a "come to court" warrant.  Establishing jurisdiction under the Civil Rights Act is the most ...detailed... part of this, and, as opposed as I generally am to taking a "shotgun" approach, it's better safe than sorry on this aspect.

Several list members were very helpful in finding the existing plaintiffs; I've got four excellent ones now as class representatives.  In the hope that I can push my luck on this -- I need a child support recipient who is over 18 (obviously, f/t college or otherwise not emancipated).  Using an adult will avoid issues about a minor's standing to sue.  There need to be arrears owed on the case, preferably under a two-week warrant status or upcoming obligation to make a lump sum payment (thus under a threat of DL suspension).  "Child" needs to agree that it wouldn't help to get support paid for the paying parent to have no license and would agree to be a plaintiff.  In all probability, no time commitment other than getting me a copy of most recent CS order, reading and signing an affidavit.  There's always the chance that there will be an in-person hearing in Trenton, but neither Leonard v. Blackburn ("72 hour rule") nor Pasqua involved a fact-finding hearing with the plaintiffs testifying (there's no real facts questions, it's pretty much a purely legal issue).

THANKS

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

Sent from my Verizon Wireless 4G LTE smartphone


Original Message------

It's been suggested by a more experienced mind than mine that the plaintiff class should include a child support recipient -- one of the legal theories involves who "directly benefits" from the statute and who is harmed by the current Due Process problems with the automatic license suspension upon entry of a "come to court" warrant.  Establishing jurisdiction under the Civil Rights Act is the most ...detailed... part of this, and, as opposed as I generally am to taking a "shotgun" approach, it's better safe than sorry on this aspect.

Several list members were very helpful in finding the existing plaintiffs; I've got four excellent ones now as class representatives.  In the hope that I can push my luck on this -- I need a child support recipient who is over 18 (obviously, f/t college or otherwise not emancipated).  Using an adult will avoid issues about a minor's standing to sue.  There need to be arrears owed on the case, preferably under a two-week warrant status or upcoming obligation to make a lump sum payment (thus under a threat of DL suspension).  "Child" needs to agree that it wouldn't help to get support paid for the paying parent to have no license and would agree to be a plaintiff.  In all probability, no time commitment other than getting me a copy of most recent CS order, reading and signing an affidavit.  There's always the chance that there will be an in-person hearing in Trenton, but neither Leonard v. Blackburn ("72 hour rule") nor Pasqua involved a fact-finding hearing with the plaintiffs testifying (there's no real facts questions, it's pretty much a purely legal issue).

THANKS

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

Attached is the final version of Kavadas et al v. Martinez et al. being filed today.  The suit raises challenges the counter-productive and unconstitutional processes that have been used to automatically suspend the driver's licenses of defaulted child support obligors.

Since early January, the complaint and supporting legal theories have been built up and burnt to the ground at least three times.  The original theories (as in the initial draft I posted long ago) were not going to fly.  Substantive due process as a stand-alone (obligors' interest in their license) has already been shot down (but is included as NJ's automatic suspension system doesn't provide the "saving" procedures that the states shooting this down had).  So, started over.  Many, many hours on statutory interpretation issues and due process generally only to be shown when it was close to filing a second time that they were a no-go as well.  Third full version, focusing exclusively on due process, was ready to go when various structural problems in the brief were pointed out.  Now, the fourth and final version is done, out, and filed.  Nights, weekends, working Sundays.... something in the area of 175 hours, but it's gotten the thumbs-up from the many, many people who've helped (and criticized, proof read, etc). I'm told it will probably be heard by Judge Jacobson, but that's not certain.

My Shakespearean reference notwithstanding, I sincerely hope that we'll sit down and discuss a resolution to address the defects in the automatic license suspension process, leaving the possibility of coercive incarceration as a "tool in the box", but putting an end to the absurdly self-defeating (and blatantly unconstitutional) automatic suspensions upon non-payment (which our fine State -- and our State alone -- has used as an illegal end-run around procedural due process).

If anyone who could assist in getting this to settlement table wants to take a look at the attached, please feel more than free.  The current system is hurting a lot of people and depriving a lot of kids of support.  Hopefully, change is in the wind.

 ....and, if not and I get my a** handed to me, at least I tried!

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

 

.... And of course.  I was just advised that the previously posted file did not include Exhibit G-J, which included the stats showing that 99.429% of the suspensions were imposed automatically - without a hearing (page 190 of PDF) and the supporting certification from retired hearing officer Norman Epting (page 203 of PDF).

So, I'm re-posting and seeing if I can remove the previously version.

 (Also, saw the type in previous post - shouldn't have said "leaving the possibility of coercive incarceration as a "tool in the box", it should have said "leaving the possibility of coercive suspension as a "tool in the box")

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

I have a client who was a reporter for several years and who suggested I do a professional "press release" on the story.  A copy of it is below.  Never done one before, I hope it's a decent job.

I'm posting it in case anyone is called from the media - if so, please feel free to give me a call or shoot me an email if there are any questions about the issues raised in the suit.

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

The summary is followed (below) by contact information for the plaintiffs in the suit and others who might give a comment.



Class Action Suit Challenges Automatic Driver's License Suspensions In New Jersey

Trenton, N.J., May 4, 2015, A class action lawsuit, filed in the New Jersey Superior Court, challenges the automatic suspension of driver's licenses imposed on parents behind on child support payments. The suit claims that the automatic suspensions are unconstitutional, contrary to the "clearly expressed legislative intent" and "obviously counter-productive."

The suit names as defendants Raymond P. Martinez, in his official capacity as Chief Administrator of the New Jersey Motor Vehicle Commission, John Jay Hoffman, Esq., in his official capacity as Acting Attorney General Attorney General, and Natasha Johnson, in her official capacity as Director of the New Jersey Division of Family Development.

"New Jersey is the only state in the country that suspends license in this way," said David Perry Davis, a Pennington, New Jersey attorney who filed the class action civil rights matter. Most states suspend an average of 250 licenses per year. In 2014, the State of New Jersey suspended 20,498 driver's licenses.

Additionally, all other states provide a hearing before suspending a license, yet 20,381 of the 20,498 licenses suspended in New Jersey during 2014 (99.429%) were suspended automatically.

"It doesn't make sense. The idea that automatically suspending someone's driver's license because he is in arrears will force him to pay child support is an example of a well-intentioned but not well thought-out law. The suspension of a driver's license prevents a parent from going to work, applying for a job, or seeing his children. It's absurdly self-defeating. When one considers the devastating effects of suspending a license, it should be obvious that this should not be done casually," said Davis.

While the suit does not seek to prevent judges from suspending driver's licenses under any circumstances, it attempts to limit the practice so it would be allowed only when "all other enforcement options have been exhausted."

"If a taxi driver who earns cash is refusing to pay his support, threatening to suspend a license may be the only effective method of forcing him to pay. Judges should have this as an option, but only if the facts of a case justify it. But what makes zero sense is the practice of automatic suspensions when arrears exist," said Davis.

"This anomaly in our law occurred over 16 years ago. In a 2006 report on the effect of license suspensions, the New Jersey Motor Vehicle Commission has already publicly made recommendations to change the system, pointing out the devastating economic effect of suspensions on the average driver."

"Judge Glenn Grant, the Acting Administrative Director at the Administrative Office of the Courts has been a champion of bringing fairness to our judicial system. I don't think that there's a 'bad guy' in this case. Everyone involved ultimately wants the same thing: a system that is tough when it needs to be, but is fair rather than self-defeating and oppressive."

Davis said that, although he is confident that the courts would eventually rule in his favor, he is hopeful that when the law's absurdities are brought to light, the state will sit down and address the problems with the current law. "Constitutional litigation can drag on for years through the courts, and the situation cannot wait. Every month, roughly 1,700 people are being improperly deprived of their licenses. It is hurting a whole lot of people. It needs to be addressed sooner rather than later," Davis said.

"I sincerely hope that all involved will work together to reach a resolution that supports what this law originally set out to do: Increase the collection of support in a fair, non-self-defeating way."

"The ultimate decision as to whether the state will fight this or work to reach a fair and constitutional resolution rests with the governor and his staff," Davis said. "The basic issue here is really very simple. You can't take a parent's drivers license away, rendering him unable to work, and then punish him when he doesn't pay support. It's common sense. If nothing else, our Governor is a 'common sense guy' and this could not be more of a common sense issue'

The case has been assigned to Judge Mary Jacobson of the Superior Court in Trenton. A hearing on a requested preliminary injunction should be held within the next 10 days.

Additional contacts: Norman Epting, Esq., Retired child support hearing officer for the state of New Jersey. Mr. Epting participated in the creation of the suit and provided a certification from the perspective of a child support hearing officer. He can be reached at [email protected]

Plaintiff Andreana Kavadas can be reach at (856) 558-9179 or [email protected]

Plaintiff Alisha Grabowski can be reach at (267) 981-5002 or [email protected]

Plaintiff LaQuay Dansby can be reach at  (732) 807-5835 or [email protected]

Please note that none of the following people were involved in the suit.  They are not supporters of it and are not in any way associated with this office.  They are potential contacts as a result of their qualifications.  All have knowledge of the suit and its arguments:

Honorable Bradley Ferencz, JSC (retired). Judge Ferencz sat the Family Part of the Superior Court and presided over many ability to pay hearings. He is now a mediator with Hoagland Longo Moran Dunst in New Brunswick: (732) 545-4717

Honorable Thomas H Dilts, PJFP (retired). Judge Dilts also sat the Family Part of the Superior Court and presided over many ability to pay hearings. He is now a mediator in private practice at 20 N Bridge St, Somerville, NJ 08876.  (908) 231-7647

Shavar Jeffries, Esq.  Noted civil rights attorney  T 973.422.6432
Mr. Jeffreys led the constitutional law clinic at Seton Hall  Law School for several years and was involved in a similar matter, Dowe v Chisea, which raised a challenge to a provision in the same law that prevented people with support arrears from being awarded electrician licenses.

Barbara Moses, Esq., Director of the Civil Rights and Constitutional Litigation Clinic at Seton Hall Law School (973) 642-8700 / [email protected]

________ About David Perry Davis _________

David Perry Davis is an attorney in Pennington. He graduated from Rutgers Law School in 1996 and clerked for the Family Part of the Superior Court later that year.

This is the fifth civil rights matter that has been filed by his office. The first, Pasqua v. Council, resulted in the Supreme Court of New Jersey recognizing that an indigent parent facing jail at a support enforcement hearing has a right to have an attorney appointed.

Leonard v. Blackburn resulted in the Appellate Division affirming that people arrested for defaulting on child support must have an ability to pay hearing within 72 hours of their arrest.

In Ricks v. Fowler, Davis worked with the Rutgers Constitutional Law clinic in convincing the court to stop an unfair process whereby support paid for a child who was subject to the "welfare cap" was being taken by the state to repay a welfare grant for other children (meaning the child support paid by a parent wasn't benefiting his child).

W.M., K.N., et al v. Carchman, et al, et al (Law Div. 7/05) resulted in the Family Court removing the unconstitutional requirement that family court litigants be required to attend religion-based 12 step programs unless they are offered a non-religious alternative.

Following the decisions in both the Pasqua and Leonard cases, New Jersey's child support collection rate went up.   This will be the result of reinstating the 7,500 driver's licenses of parents who will now be able to pursue employment and have the ability to pay support

Update:

Judge Jacobson conducted a case management conference today and gave a briefing schedule.  She noted that the relief I'm seeking in the order to show cause / request for preliminary injunction is essentially the ultimate relief I'm seeking in the case, so she's not deciding that on a 10 day basis as requested.  The state's opposition which will be, as I expected, in the form of a Rule 4:6-2(e) motion to dismiss (same way the State went in Pasqua v. Council and Leonard v. Blackburn) is due in 30 days, my reply by June 19, and oral argument and a decision on the merits will be June 30.

Both the DAG and I were trying to see if any hints were be given as to which way she was leaning at this point (without, of course, having seen the opposition yet), but Judge Jacobson carefully dropped none.  It did appear she'd read it.

I'm hopeful that, before then, there will be at least an attempt to resolve it.  As I pointed out today, since the suit's filing last Friday, 384 people have had their licenses suspended - and a total of 2 of them will have had the constitutionally mandated hearing before this occurred.

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

As to the update requests --


The State requested an extra week to respond to the OSC for a preliminary injunction, thus nothing posted last Friday.

Only other update is that the complaint was amended so as to contain the required certification regarding personal identifiers and, correspondingly, a revised brief and attachments was filed removing personal identifiers (the online version has been fixed).

Docs attached for any who are really interested.

So, State's response (I anticipate a motion to dismiss and brief) are due Friday.  I'll put it online ASAP upon receipt.  I think I'll know within 10 minutes whether it's looking good and they've raised the anticipated arguments or if we missed something and are in trouble.

Oral argument is still on for June 30, 10:00 a.m., Judge Jacobson (new criminal courthouse in Trenton).  While I suppose there's always some "third way" outcome or other option, generally - if I lose 6/30, the case goes down (or goes up). If I win, roughly 7,500 license suspensions are rescinded (at which point, hopefully, the State will sit down and talk about a resolution).

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

 

Waiting for tomorrow with baited breath for the State's opposition in Kavadas v. Martinez?  Well - the State has now asked for another adjournment, another two weeks, and to push off the June 30 date for the hearing on the preliminary injunction.

I consented on the first request (agreeing to shorten the time for my reply, keeping the June 30 hearing).  For the following reasons, I'm not simply agreeing to a second adjournment, and not agreeing to put off the June 30 return date:

57 people per day are having their licenses taken unconstitutionally.  99.4% of them will not have received any hearing whatsoever - automatic suspension on the entry of a "bring to court" warrant for not being able to comply with a "two week warrant" status order that may have been entered a decade ago.  While it's the issue isn't settled, there's a question as to whether they can have their restoration fees refunded if the court determines the suspensions were unconstitutional.

Every other day (.5 per day), licenses are being suspended erroneously - wrong person, wrong order, some other error.  While they don't have to pay a restoration fee, MVS has immunity for the towing charges and other problems this type of error causes.  Many of these problems would be avoided if MVS complied with the explicit, unambiguous, straightforward and clear-cut mandate of 2A:17-56.44 that "upon receipt of an order requiring the suspension of a license, the licensing authority shall immediately notify the licensee of the effective date of the suspension or revocation, which shall be 20 days after the postmark of the notice."  Instead of complying, MVS suspends as of the date of the order and sends people a notice telling them that their license was suspended several days (or a week) earlier.  Did I mention there's no two ways to read this statute that I can see?  The three pages of the brief and sample notices are attached.  If someone sees a question about it, I'd love the hear it.

Additionally, my offers to sit down and try to resolve this and to mediate have been ignored - there's a con law professor who is well-respected who would attend.  I believe that a meet with the AOC and DFD would be productive, especially as I have yet to ever hear someone say that the current automatic suspension process is a good, productive idea.

Of course, it's up to Judge Jacobson whether to adjourn it, but I had a hard time believing a first adjournment request was justified.  If I as a solo (okay, with a lot of help from various con law clinics and projects) can get it together to do this, the AG's office with its unlimited resources can do likewise.

My inclination is to say I oppose the adjournment request unless:

1.  MVS begins complying with N.J.S.A. 2A:17-56.44.  If they want to turn the overall Constitutional issue into a debate instead of stopping these counterproductive, oppressive suspensions, I guess that's their right.  But N.J.S.A. 2A:17-56.44 is clear and needs to be complied with immediately.

2.  The State agrees to attend settlement negotiations in good faith as to all issues.

Until a final decision or agreement on the merits:

3.  The prosecution of all persons charged with driving while suspended due to a CS suspension is deferred.

4.  Reserving the right to address the issue of restoration fees for all past suspensions, any restoration fees paid since the date of the complaint shall be refunded.

5.  Two of the named plaintiffs (Andreana Kavadas and Alisha Grabowski) have reason to believe that they can get employment quickly once they get their licenses back.  Their lack of a license is preventing them from paying support, which in turn is resulting in warrant threats.  The States agrees to stay enforcement involving warrants or suspensions for them.

Do these requests look reasonable?  Anything else I'm missing?  Any thoughts at all would be appreciated - on-list or off.

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

1. Admire your gumption.

2. Why cut them any slack?

3. The judges will probably always cut the State slack when they need time.

------------------------------
David Molk Esq.
Ridgefield Park NJ
(201) 440-3400
------------------------------

Original Message:
Sent: 06-11-2015 12:07
From: David Perry Davis
Subject: Support related license suspensions / Civil Rights Action

 

Waiting for tomorrow with baited breath for the State's opposition in Kavadas v. Martinez?  Well - the State has now asked for another adjournment, another two weeks, and to push off the June 30 date for the hearing on the preliminary injunction.

I consented on the first request (agreeing to shorten the time for my reply, keeping the June 30 hearing).  For the following reasons, I'm not simply agreeing to a second adjournment, and not agreeing to put off the June 30 return date:

57 people per day are having their licenses taken unconstitutionally.  99.4% of them will not have received any hearing whatsoever - automatic suspension on the entry of a "bring to court" warrant for not being able to comply with a "two week warrant" status order that may have been entered a decade ago.  While it's the issue isn't settled, there's a question as to whether they can have their restoration fees refunded if the court determines the suspensions were unconstitutional.

Every other day (.5 per day), licenses are being suspended erroneously - wrong person, wrong order, some other error.  While they don't have to pay a restoration fee, MVS has immunity for the towing charges and other problems this type of error causes.  Many of these problems would be avoided if MVS complied with the explicit, unambiguous, straightforward and clear-cut mandate of 2A:17-56.44 that "upon receipt of an order requiring the suspension of a license, the licensing authority shall immediately notify the licensee of the effective date of the suspension or revocation, which shall be 20 days after the postmark of the notice."  Instead of complying, MVS suspends as of the date of the order and sends people a notice telling them that their license was suspended several days (or a week) earlier.  Did I mention there's no two ways to read this statute that I can see?  The three pages of the brief and sample notices are attached.  If someone sees a question about it, I'd love the hear it.

Additionally, my offers to sit down and try to resolve this and to mediate have been ignored - there's a con law professor who is well-respected who would attend.  I believe that a meet with the AOC and DFD would be productive, especially as I have yet to ever hear someone say that the current automatic suspension process is a good, productive idea.

Of course, it's up to Judge Jacobson whether to adjourn it, but I had a hard time believing a first adjournment request was justified.  If I as a solo (okay, with a lot of help from various con law clinics and projects) can get it together to do this, the AG's office with its unlimited resources can do likewise.

My inclination is to say I oppose the adjournment request unless:

1.  MVS begins complying with N.J.S.A. 2A:17-56.44.  If they want to turn the overall Constitutional issue into a debate instead of stopping these counterproductive, oppressive suspensions, I guess that's their right.  But N.J.S.A. 2A:17-56.44 is clear and needs to be complied with immediately.

2.  The State agrees to attend settlement negotiations in good faith as to all issues.

Until a final decision or agreement on the merits:

3.  The prosecution of all persons charged with driving while suspended due to a CS suspension is deferred.

4.  Reserving the right to address the issue of restoration fees for all past suspensions, any restoration fees paid since the date of the complaint shall be refunded.

5.  Two of the named plaintiffs (Andreana Kavadas and Alisha Grabowski) have reason to believe that they can get employment quickly once they get their licenses back.  Their lack of a license is preventing them from paying support, which in turn is resulting in warrant threats.  The States agrees to stay enforcement involving warrants or suspensions for them.

Do these requests look reasonable?  Anything else I'm missing?  Any thoughts at all would be appreciated - on-list or off.

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

Judge Jacobson granted the state's request for another adjournment, but made clear that "this is it" - no further adjournments will be given to the State.

The new dates are:
        June 26: State's opposition
        July 10:  Plaintiff's reply
        July 22:  Hearing on preliminary injunction (10:00 a.m., Trenton, JSC Jacobson, 400 Warren Street, Trenton)

State's letter requesting second adjournment: 

 http://dpdlaw.com/Kav_Mart_Req2ndAdj.pdf

Plaintiffs' opposition to request:

http://dpdlaw.com/Kav_Mart_Opp2ndAdj.pdf

New Scheduling Order:

   http://dpdlaw.com/Kav_NewSchdOrder.pdf




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


_________________________________________________________________

All previous documents:

Scheduling order (Jun 4, 2015)

                  http://dpdlaw.com/Kav_Mart_SchOrder_Jun_4_2015.pdf

State's letter requesting first adjournment:

 http://dpdlaw.com/Kav_Mart_Req1stAdj.pdf

Amended Complaint and cover letter

 http://dpdlaw.com/Kav_Mart_AmendedCompAndCoverLtr.pdf

Scheduling order (May 8, 2015)

 http://dpdlaw.com/Kav_Mart_SchOrder_May_8_2015.pdf

Track assignment:

 http://dpdlaw.com/Kav_Mart_TrackAssignment.pdf

Complaint, Brief, OSC, attachments

              http://dpdlaw.com/Kavadas_v_Martinez_Final.pdf

The state's opposition brief in Kavadas v. Martinez (due process challenge to automatic license suspension as a result of child support arrears) was filed today.

Update and link to State's brief:  http://dpdlaw.com/Kavadas.htm

I welcome (I heartily invite) any comments or thoughts.  I have a brief due in a complex appeal early next week, so I'm not going to be able to really dive in on this until at least Tuesday, but I'm obviously giving it a quick read now.  Thus far, I'm underwhelmed by it and (subject of course to thoroughly reading it), I'm encouraged. They simply ignore (don't address whatsoever) whole sections of the issues raised (including the right to counsel before the "consequence of magnitude" of a license suspension is imposed, the issue of MVS violating N.J.S.A. 2A:17 56.44 by not providing 20 days notice of a suspension, etc).  The reply brief is due July 10.

Note - this is the brief only, the attachments are being sent overnight mail and will be posted on http://dpdlaw.com/Kavadas.htm when they get here Monday.

Dpdlaw		remove preview
Kavadas v. Martinez is a class action civil rights suit pending in the Superior Court of New Jersey. The suit challenges the practice of automatically suspending the driver's licenses of child support obligors for nonpayment without a hearing as to whether the default was willful and as to whether the license suspension would be counterproductive. View this on Dpdlaw >

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

One point of immediate interest to anyone who is assisting someone in getting a license reinstated (it's not usually us as most of these folks can't afford counsel) -- I urged (as one small point) that more judges should vacate orders for a license suspension rather than issuing a new order reinstating the license.  The effect of this is a lot to someone's who is indigent: It means the $100 restoration fee is, in effect, waived (since the original order is vacated rather than a new order being entered).  One of plaintiffs (Andreana Kavadas) has a $44 per week obligation and is often faced with the issue of either getting her license back or paying two weeks worth of child support.


At page 13 of its opposition ( http://www.dpdlaw.com/kav_Mart_OppositionBrief.pdf ), the State isn't fighting this.  In fact, they reference the procedure:

If a license suspension is lifted, an electronic request allowing for restoration is sent to the MVC and the license is restored to the obligor in return for payment of a $100 restoration fee. The judge cannot waive the restoration fee. N.J.S.A. 2A:17-56.45. In some cases, a judge will vacate the license suspension order and no restoration fee is required. R. 4:50-1. A judge may vacate a license suspension order when he or she finds: (1) that the judgment or order has been satisfied, released or discharged; or (2) any other reason justifying relief from the operation of the judgment or order. R. 4:50-19(e)-(f).    (Emphasis added).

Please urge anyone in this situation to suggest this option to a judge - it may help get someone back to work.


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

The text of N.J.S.A. 2A:17-56.41(a) states "[i]f ... a child support-related warrant exists ... the Probation Division shall send a written notice  . . . advising the obligor that the obligor's license may be revoked or suspended unless, within 30 days, [a hearing is requested] . . . " in one sentence.

Then, literally in the next full sentence it states "the obligor's driver's license shall be suspended by operation of law upon the issuance of a child support-related warrant."

It can't be both. The legislature intended either one or the other.  Either the existence of a warrant is one factor that can trigger the requirement of a hearing wherein a license suspension may be imposed, or "the obligor's driver's license shall be suspended by operation of law upon the issuance of a child support-related warrant."  My preference, obviously, is for the first-stated provision as it comports with due process, provides for a hearing to ensure a license suspension is actually coercive and not just preventing every deadbroke parent from having any hope of getting a job...

Guess which section of the statute is responsible for 20,381 of the 20,498 (99.429%) suspensions last year?  If you guessed "the obligor's driver's license shall be suspended by operation of law upon the issuance of a child support-related warrant", you're right.

Anyone who has awake during statutory interpretation in law school know a helpful rule of law, or, God Bless you - a controlling case -- that might persuade a judge that the first section of the statue is what should survive here?

Thanks,

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

The Reply brief was filed today.  Anyone interested in reading it will find it (and the prior briefs and pleadings) here: http://dpdlaw.com/Kavadas.htm

Next event is oral argument on plaintiffs' application for a preliminary injunction, scheduled for July 22.  We're very, very strong on some issues - the state essentially (or completely) ignored them in its opposition brief (lack of appointment of counsel before the "consequence of magnitude" of a suspension is imposed, MVC not providing the mandatory 20 day period before a suspension is effect), but I would never say that anything is "for sure" in a courtroom. We're very strong on others (the due process claims), but, again, "never say never."  The state was also completely silent on the realities of poverty and support enforcement and the numbers that the Federal Office of Child Support Enforcement have given over the past few years (showing 73% of defaulted obligors earn $10,000 per year or less, etc), and were silent on the announced federal trend in favor of states being more circumspect in their use of potentially counter-productive coercive measures.  If the court really "gets it"... it's not unrealistic to hope something very good may happen. There are always counter-arguments on an issue, but if I've presented the realities to the court, it won't be looking for a way to shoot down the claims, it'll be looking for the best way to fix the system.

I continue to hope that the state will conference the case and discuss a settlement of the issues, but so far I'm talking to a wall at the AOC, DFD, and AG's office (or, more precisely, talking to people who say "yes, off the record, I agree it's obviously counter-productive, but it's not up to me...").  I'll keep trying to reach out.

282.4 hours since January on this, including the four all-nighters in the last week... I hope something comes of it all!

_______________________________________________

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

I had started to write previously as your postings have nothing to do with what this group shares or should be sharing. Frankly, you are turning this group into something of a captive audience for your own personal reasons. Examples - why do we need to know how many hours you have spent on your mission?
Why does anyone need to know what points in your brief were ignored?
Honestly, I get confused as there are times when you seem to be running for political office and then there are times when I get the feeling that you are making an acceptance speech for Man of the Year.
This site is not about you or anyone else - stop making it a self aggrandizing political arena.

Sent from my Verizon Wireless 4G LTE DROID


Original Message------

The Reply brief was filed today.  Anyone interested in reading it will find it (and the prior briefs and pleadings) here: http://dpdlaw.com/Kavadas.htm

Next event is oral argument on plaintiffs' application for a preliminary injunction, scheduled for July 22.  We're very, very strong on some issues - the state essentially (or completely) ignored them in its opposition brief (lack of appointment of counsel before the "consequence of magnitude" of a suspension is imposed, MVC not providing the mandatory 20 day period before a suspension is effect), but I would never say that anything is "for sure" in a courtroom. We're very strong on others (the due process claims), but, again, "never say never."  The state was also completely silent on the realities of poverty and support enforcement and the numbers that the Federal Office of Child Support Enforcement have given over the past few years (showing 73% of defaulted obligors earn $10,000 per year or less, etc), and were silent on the announced federal trend in favor of states being more circumspect in their use of potentially counter-productive coercive measures.  If the court really "gets it"... it's not unrealistic to hope something very good may happen. There are always counter-arguments on an issue, but if I've presented the realities to the court, it won't be looking for a way to shoot down the claims, it'll be looking for the best way to fix the system.

I continue to hope that the state will conference the case and discuss a settlement of the issues, but so far I'm talking to a wall at the AOC, DFD, and AG's office (or, more precisely, talking to people who say "yes, off the record, I agree it's obviously counter-productive, but it's not up to me...").  I'll keep trying to reach out.

282.4 hours since January on this, including the four all-nighters in the last week... I hope something comes of it all!

_______________________________________________

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

I am sorry to see this.  I feel fortunate that David is sharing his fine work.  It is easy enough to disregard.  The subject is one in which we are all interested as it effects many of our clients whether payors or payees.  I can only hope David won't be discouraged from continuing to keep us abreast of this suit.  I find his enthusiasm and passion for the law contagious.

------------------------------
Mary Jane Leland Esq.
Freehold NJ
(732)409-7777
------------------------------

Original Message:
Sent: 07-13-2015 23:45
From: W. S. Gerald Skey
Subject: Support related license suspensions / Civil Rights Action

I had started to write previously as your postings have nothing to do with what this group shares or should be sharing. Frankly, you are turning this group into something of a captive audience for your own personal reasons. Examples - why do we need to know how many hours you have spent on your mission?
Why does anyone need to know what points in your brief were ignored?
Honestly, I get confused as there are times when you seem to be running for political office and then there are times when I get the feeling that you are making an acceptance speech for Man of the Year.
This site is not about you or anyone else - stop making it a self aggrandizing political arena.

Sent from my Verizon Wireless 4G LTE DROID

I have known Dave for nearly 10 years when I clerked for Judge
LeWinn and his enthusiasm for those with no voice is second to none.  He
has kept us up to date with a substantial issue which should be of
interest to all family lawyers in New Jersey.  In the event that someone
is not interested, delete the e-mails.  I for one take pleasure in
seeing a fellow practitioner champion an issue as though he was provided
with an open-ended retainer that had unlimited capital.  Cheers Dave!
 
Best,
 
Eric

 
 
 
On Mon, Jul 13, 2015 at 06:20 PM, David Perry Davis via New Jersey State
Bar Association wrote:
 
 







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Jul 13, 2015 6:21 PM
David Perry Davis, Esq
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The Reply brief was filed today.  Anyone interested in reading it will
find it (and the prior briefs and pleadings) here:
http://dpdlaw.com/Kavadas.htm
<http: dpdlaw.com/kavadas.htm=""> Next event is oral argument on
plaintiffs' application for a preliminary injunction, scheduled for July
22.  We're very, very strong on some issues - the state essentially (or
completely) ignored them in its opposition brief (lack of appointment of
counsel before the "consequence of magnitude" of a suspension is
imposed, MVC not providing the mandatory 20 day period before a
suspension is effect), but I would never say that anything is "for sure"
in a courtroom. We're very strong on others (the due process claims),
but, again, "never say never."  The state was also completely silent on
the realities of poverty and support enforcement and the numbers that
the Federal Office of Child Support Enforcement have given over the past
few
years (showing 73% of defaulted obligors earn $10,000 per year or
less, etc), and were silent on the announced federal trend in favor of
states being more circumspect in their use of potentially
counter-productive coercive measures.  If the court really "gets it"...
it's not unrealistic to hope something very good may happen. There are
always counter-arguments on an issue, but if I've presented the
realities to the court, it won't be looking for a way to shoot down the
claims, it'll be looking for the best way to fix the system.
I continue to hope that the state will conference the case and discuss
a settlement of the issues, but so far I'm talking to a wall at the AOC,
DFD, and AG's office (or, more precisely, talking to people who say
"yes, off the record, I agree it's obviously counter-productive, but
it's not up to me...").  I'll keep trying to reach out.


282.4 hours since January on this, including the four all-nighters in
the last week... I hope something comes of it all!
_______________________________________________
------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
www.FamilyLawNJ.pro
Voice: 609-737-2222
Fax: 609-737-3222
------------------------------








 
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Original Message------

The Reply brief was filed today.  Anyone interested in reading it will find it (and the prior briefs and pleadings) here: http://dpdlaw.com/Kavadas.htm

Next event is oral argument on plaintiffs' application for a preliminary injunction, scheduled for July 22.  We're very, very strong on some issues - the state essentially (or completely) ignored them in its opposition brief (lack of appointment of counsel before the "consequence of magnitude" of a suspension is imposed, MVC not providing the mandatory 20 day period before a suspension is effect), but I would never say that anything is "for sure" in a courtroom. We're very strong on others (the due process claims), but, again, "never say never."  The state was also completely silent on the realities of poverty and support enforcement and the numbers that the Federal Office of Child Support Enforcement have given over the past few years (showing 73% of defaulted obligors earn $10,000 per year or less, etc), and were silent on the announced federal trend in favor of states being more circumspect in their use of potentially counter-productive coercive measures.  If the court really "gets it"... it's not unrealistic to hope something very good may happen. There are always counter-arguments on an issue, but if I've presented the realities to the court, it won't be looking for a way to shoot down the claims, it'll be looking for the best way to fix the system.

I continue to hope that the state will conference the case and discuss a settlement of the issues, but so far I'm talking to a wall at the AOC, DFD, and AG's office (or, more precisely, talking to people who say "yes, off the record, I agree it's obviously counter-productive, but it's not up to me...").  I'll keep trying to reach out.

282.4 hours since January on this, including the four all-nighters in the last week... I hope something comes of it all!

_______________________________________________

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

</http:></http:></http:></http:></http:></http:></http:></http:></http:></http:></http:></mailto:[email protected]></http:></http:></http:>

Thanks for the replies and support, on-list, off-list, and calls.


It'd be a little hypocritical for me of all people to say someone shouldn't speak their mind, even if they're a little cranky.

Not running for office... Haven't heard the call of the people for me to serve yet.  :-)

The only thing that bugged me a bit -- I do hope that nothing I've ever said implies that I don't recognize and respect that the vast majority of us do more with our profession than striving to fill a timesheet (a goal that sent exactly zero of us to law school). I think all of us give of our time and talents by trying to bring justice to the world, in everything from volunteering as an ESP panelist to carrying the occasional case where we know we may not be getting paid at the end but it's the right thing to do. It's certainly nowhere in my heart to think I'm unusual in that regard.

Anyway, on the merits:  The state filed a sur-reply today which is now on the site ( http://dpdlaw.com/kavadas.htm ).  Oral argument is Wednesday.

If anyone wants to shoot me over some questions, please think of the hardest ones -- the reasons plaintiffs should not prevail, any holes seen in the arguments.  That's obviously what I need to be better prepared for.  Even if you haven't reviewed all the briefs, any thoughts along these lines would be appreciated.  Although I generally think it's a better idea to post things on the list so others who are interested can learn from and benefit from the discussion (or delete them if they don't see any value on a topic), well, on this issue, I'd obviously prefer off-list.... I think there's an answer to all the opposition points and that system is counter-productive and needs to change, but no need to advertise weak points more than necessary. I'm aware that just because something is wrong and counter-productive doesn't automatically make it unconstitutional, which is where the risk is and where I've got to focus the argument.

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

Good luck David. I appreciate all of the hard work you are doing. Pat Martin


Patricia Speake Martin
[email protected]


Patricia Speake Martin, Esq.
One University Plaza
Suite 400
Hackensack NJ 07601
201-487-1199
201-487-9109 (fax)


Original Message------

Thanks for the replies and support, on-list, off-list, and calls.


It'd be a little hypocritical for me of all people to say someone shouldn't speak their mind, even if they're a little cranky.

Not running for office... Haven't heard the call of the people for me to serve yet.  :-)

The only thing that bugged me a bit -- I do hope that nothing I've ever said implies that I don't recognize and respect that the vast majority of us do more with our profession than striving to fill a timesheet (a goal that sent exactly zero of us to law school). I think all of us give of our time and talents by trying to bring justice to the world, in everything from volunteering as an ESP panelist to carrying the occasional case where we know we may not be getting paid at the end but it's the right thing to do. It's certainly nowhere in my heart to think I'm unusual in that regard.

Anyway, on the merits:  The state filed a sur-reply today which is now on the site ( http://dpdlaw.com/kavadas.htm ).  Oral argument is Wednesday.

If anyone wants to shoot me over some questions, please think of the hardest ones -- the reasons plaintiffs should not prevail, any holes seen in the arguments.  That's obviously what I need to be better prepared for.  Even if you haven't reviewed all the briefs, any thoughts along these lines would be appreciated.  Although I generally think it's a better idea to post things on the list so others who are interested can learn from and benefit from the discussion (or delete them if they don't see any value on a topic), well, on this issue, I'd obviously prefer off-list.... I think there's an answer to all the opposition points and that system is counter-productive and needs to change, but no need to advertise weak points more than necessary. I'm aware that just because something is wrong and counter-productive doesn't automatically make it unconstitutional, which is where the risk is and where I've got to focus the argument.

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

Time change:   Judge Jacobson's chambers just called.  The time for oral argument on the application for a preliminary injunction / cross application to dismiss has been moved from 10:00 to 9:30 a.m.

New documents - The State filed a sur-reply on Friday, I filed a response to it this morning.  These should be the last documents before oral argument on Wednesday.  Documents available:  http://dpdlaw.com/Kavadas.htm

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

If any Con Law experts feel like donating 2.5 minutes... 17 hours to oral argument and chugging away on at outline for it.

1.  When the license suspension statute (at section 43) provides all the protections it does (ensuring no unemployment or disability is at issue, that no hardship would be caused by a suspension, mandating a hearing upon request before a suspension is imposed, etc) and then the AOC comes along (via Directive #15-08) and says that a simple default will result in a suspension (as the automatic side effect of the entry of a warrant) with no further inquiry and "without further notice", has the AOC ventured into substantive law rather than "practice and procedure"?

2. (Related) Is there an argument that the state providing all the protections it does in section .43 establishes what process the obligors are entitled to for purposes of a Mathews v. Eldridge analysis?

Stated another way -- how can the AOC promulgate a Directive that effects substantive rights (as in a license) and, in so doing, provide far lesser due process protections than the legislature did in a duly enacted law? How does this not violate Article VI of the NJ Constitution restricting the AOC to "practice and policy"?



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

To the extent defendants are arguing here that court Rules permitting the issuance of warrants (and resulting suspensions) "without further notice" override the legislative scheme for notice and an opportunity to be heard before a suspension is imposed, it would constitute a conflict between Directive #15-08 and N.J.S.A. 2A:17 56.41. The suspension of a license is a matter of substance, not procedure. The clear legislative intent is that a suspension be imposed only on notice and only as the result of a hearing wherein its coercive effect is explored. For a Directive to instead provide for the issuance of a warrant "without further notice" upon a mere default on a two week warrant status order is an intrusion into substantive law as the Directive provides less process than the statute.

When there is a conflict between a Directive and a statute on an area of substantive law, the former must yield to the latter. See State v. Maurer, 438 N.J.Super. 402 (App.Div. 2014) (in a conflict between AOC Directive as to admission to Drug Court program and a revision to the statute, the Directive must yield as substantive rights implicated). See also, New Jersey Constitution, Article VI, � 2, � 3 ("the Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts."), Winberry v. Salisbury, 5 N.J. 240, 245 46, cert. denied, 340 U.S. 877 (1950) (Emphasis added), In re P.L. 2001, Chapter 362., 186 N.J. 368, 380 (2006) (defining "pleading and practice" as opposed to substance).

While the legislature did not establish criteria for when a warrant should issue, it was abundantly clear that the consequence of magnitude of a suspension should not be imposed casually. It entrusted the responsibility for determining when warrants as opposed to summonses should be issued to the AOC. Rather than promulgating a Directive that adheres to the clearly expressed legislative intent that a suspension be ordered only after notice and a reasonably contemporaneous hearing to explore the reason for a default and to establish that this action would be coercive, Directive #15-08 established a process whereby a warrant can be entered on nothing more than a belief "that bringing an obligor before the court on an expedited basis will be necessary"(Exhibit A at page 6). For the Directive to permit the entry of a warrant (and, therefore a suspension) "without further notice" upon a mere default is an improper intrusion into the legislature's exclusive authority to determine such substantive policies

And the outcome is:

Change is coming.... but not today.

Class certification: Plaintiffs were encouraged to agree that class certification is only needed in order to ensure that any relief granted would apply systemically, not just to the named plaintiffs. The court determined that, if it takes action, it would most likely be directed at a Directive or statute and would thus be binding on all, not just the named plaintiffs. Accordingly, class certification is denied, but "without prejudice" - should it appear that it would be necessary in order to grant complete relief, plaintiffs may reapply for it.

Preliminary Injunction: On the issue of whether plaintiffs have shown "a probability of eventual success on the merits", the court stated it had "very serious concerns" about the current suspension process, and "plaintiffs may ultimately success on the merits", but that at this stage, "as [the Court is] required to apply the standard applicable to a request for a preliminary injunction - especially an injunction that changes rather than preserves the status quo - I can't find by clear and convincing evidence that the threshold has been met ... this is not a summary judgment application. ... There is a reasonable chance the plaintiffs will succeed, but not via clear and convincing evidence at this stage for this purposes" "especially as the relief requested via injunction is essentially the ultimate relief plaintiffs seek in the case."

The court "is sufficiently concerned about the issues raised" that it will proceed on an "expedited schedule." Counsel are to indicate to the court by July 30 what documents or additional information they feel would be relevant to the court addressing the primarily legal Constitutional issues. A case management conference will be held August 3 to resolve the exchange of documents. 

And (wasn't said directly, but several times indirectly:) The court expects a motion and cross motion for summary judgment shortly thereafter.

The court would like additional briefing as to what remedy is appropriate.  (<--- a request, I'd say, that is a favorable indicator as to which way the court is leaning).

All docs (order to be added when received): http://dpdlaw.com/Kavadas.htm

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

WELL DONE! DAVID MOLK, Esq.71 Mount Vernon StreetRidgefield Park, New Jersey 07660(201) 440-3400; Fax (201) 440-4347 This e-mail and any attachments contains information which may be confidential, privileged an/or proprietary. If you are not the addressee(s) (or authorized to receive for the intended recipient(s), you may not use, copy, or disclose to anyone the information contained in or attached to this e-mail. If you have received this e-mail in error, please notify the sender and delete this e-mail and all attachments. On 07/22/15, David Perry Davis via New Jersey State Bar AssociationConnectedCommunity.org> wrote: <http: community.njsba.com/familylawsection=""> Family Law <http: community.njsba.com/viewdiscussions/digestviewer/?groupid="1291"> Post New Message Online <http: community.njsba.com/participate/postmessage/?groupid="1291"> Post New Message via Email <[email protected]> Re: Support related license suspensions / Civil Rights Action <http: community.njsba.com/communities/community-home/digestviewer/viewthread/?groupid="1291&MID=24514&tab=digestViewer"> Reply All Online <http: community.njsba.com/communities/all-discussions/postreply/?mid="24514&GroupId=1291"> Reply All Email <njsba_familylaw_51cab228-99f7-4e18-92cc-82e5d370d082@connectedcommunity.org?subject=re: support="" related="" license="" suspensions="" civil="" rights="" action=""> Reply to Sender <http: community.njsba.com/communities/all-discussions/postreply/?groupid="1291&SenderKey=679a86af-d472-43af-a81d-922d6adc4700&MID=24514"> Email Sender <[email protected]?subject=re: support="" related="" license="" suspensions="" civil="" rights="" action=""> <http: community.njsba.com/network/members/profile/?userkey="679a86af-d472-43af-a81d-922d6adc4700"> Jul 22, 2015 2:32 PMDavid Perry Davis, Esq <http: community.njsba.com/network/members/profile/?userkey="679a86af-d472-43af-a81d-922d6adc4700">
And the outcome is:

Change is coming.... but not today.

Class certification: Plaintiffs were encouraged to agree that class certification is only needed in order to ensure that any relief granted would apply systemically, not just to the named plaintiffs. The court determined that, if it takes action, it would most likely be directed at a Directive or statute and would thus be binding on all, not just the named plaintiffs. Accordingly, class certification is denied, but without prejudice - should it appear that it would be necessary in order to grant complete relief, plaintiffs may reapply for it.

Preliminary Injunction: On the issue of whether plaintiffs have shown a probability of eventual success on the merits, the court stated it had very serious concerns about the current suspension process, and plaintiffs may ultimately success on the merits, but that at this stage, as [the Court is] required to apply the standard applicable to a request for a preliminary injunction - especially an injunction that changes rather than preserves the status quo - I can't find by clear and convincing evidence that the threshold has been met ... this is not a summary judgment application. ... There is a reasonable chance the plaintiffs will succeed, but not via clear and convincing evidence at this stage for this purposes especially as the relief requested via injunction is essentially the ultimate relief plaintiffs seek in the case.

The court is sufficiently concerned about the issues raised that it will proceed on an expedited schedule. Counsel are to indicate to the court by July 30 what documents or additional information they feel would be relevant to the court addressing the primarily legal Constitutional issues. A case management conference will be held August 3 to resolve the exchange of documents.

And (wasn't said directly, but several times indirectly:) The court expects a motion and cross motion for summary judgment shortly thereafter.

The court would like additional briefing as to what remedy is appropriate. (<--- a request, I'd say, that is a favorable indicator as to which way the court is leaning).

All docs (order to be added when received): http://dpdlaw.com/Kavadas.htm <http: dpdlaw.com/kavadas.htm="">

---------------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
www.FamilyLawNJ.pro <http: www.familylawnj.pro/="">
Voice: 609-737-2222
Fax: 609-737-3222
---------------------------------------


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Original Message------

And the outcome is:

Change is coming.... but not today.

Class certification: Plaintiffs were encouraged to agree that class certification is only needed in order to ensure that any relief granted would apply systemically, not just to the named plaintiffs. The court determined that, if it takes action, it would most likely be directed at a Directive or statute and would thus be binding on all, not just the named plaintiffs. Accordingly, class certification is denied, but "without prejudice" - should it appear that it would be necessary in order to grant complete relief, plaintiffs may reapply for it.

Preliminary Injunction: On the issue of whether plaintiffs have shown "a probability of eventual success on the merits", the court stated it had "very serious concerns" about the current suspension process, and "plaintiffs may ultimately success on the merits", but that at this stage, "as [the Court is] required to apply the standard applicable to a request for a preliminary injunction - especially an injunction that changes rather than preserves the status quo - I can't find by clear and convincing evidence that the threshold has been met ... this is not a summary judgment application. ... There is a reasonable chance the plaintiffs will succeed, but not via clear and convincing evidence at this stage for this purposes" "especially as the relief requested via injunction is essentially the ultimate relief plaintiffs seek in the case."

The court "is sufficiently concerned about the issues raised" that it will proceed on an "expedited schedule." Counsel are to indicate to the court by July 30 what documents or additional information they feel would be relevant to the court addressing the primarily legal Constitutional issues. A case management conference will be held August 3 to resolve the exchange of documents. 

And (wasn't said directly, but several times indirectly:) The court expects a motion and cross motion for summary judgment shortly thereafter.

The court would like additional briefing as to what remedy is appropriate.  (<--- a request, I'd say, that is a favorable indicator as to which way the court is leaning).

All docs (order to be added when received): http://dpdlaw.com/Kavadas.htm

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

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Congratulations, David. Well done!!!



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Original Message------

And the outcome is:

Change is coming.... but not today.

Class certification: Plaintiffs were encouraged to agree that class certification is only needed in order to ensure that any relief granted would apply systemically, not just to the named plaintiffs. The court determined that, if it takes action, it would most likely be directed at a Directive or statute and would thus be binding on all, not just the named plaintiffs. Accordingly, class certification is denied, but "without prejudice" - should it appear that it would be necessary in order to grant complete relief, plaintiffs may reapply for it.

Preliminary Injunction: On the issue of whether plaintiffs have shown "a probability of eventual success on the merits", the court stated it had "very serious concerns" about the current suspension process, and "plaintiffs may ultimately success on the merits", but that at this stage, "as [the Court is] required to apply the standard applicable to a request for a preliminary injunction - especially an injunction that changes rather than preserves the status quo - I can't find by clear and convincing evidence that the threshold has been met ... this is not a summary judgment application. ... There is a reasonable chance the plaintiffs will succeed, but not via clear and convincing evidence at this stage for this purposes" "especially as the relief requested via injunction is essentially the ultimate relief plaintiffs seek in the case."

The court "is sufficiently concerned about the issues raised" that it will proceed on an "expedited schedule." Counsel are to indicate to the court by July 30 what documents or additional information they feel would be relevant to the court addressing the primarily legal Constitutional issues. A case management conference will be held August 3 to resolve the exchange of documents. 

And (wasn't said directly, but several times indirectly:) The court expects a motion and cross motion for summary judgment shortly thereafter.

The court would like additional briefing as to what remedy is appropriate.  (<--- a request, I'd say, that is a favorable indicator as to which way the court is leaning).

All docs (order to be added when received): http://dpdlaw.com/Kavadas.htm

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

The order from oral argument with Judge Jacobson on July 22 is now online:  http://dpdlaw.com/Kavadas.htm

________________________

In the off chance the State would like to discuss resolving it (which they have done occasionally on civil rights matters - my almost-filed case regarding compelling people to attend religion-based 12 step programs resulted in a change without the suit being filed and the ACLU's challenge to TRU-ID program resulted in a quick resolution)...

Even if the state were interested in addressing the issues and fixing the "automatic suspension" issue, we would be kind of "stuck" because of the mandatory language in the statute requiring the suspension of licenses "by operation of law" upon the entry of a warrant that has caused the majority of the problems over the years.

So if we cannot get away from a statute that says that a license shall be suspended automatically upon entry of the warrant, the answer is to stop using warrants.

No, I'm not suggesting that arrest for willful nonpayment is a solution....  Just start using a writ of Capias Ad Satisfaciendum. It's a civil writ, not a warrant.  It would accomplish the goal of keeping alive the much-needed threat of arrest without automatically suspending licenses. The AOC via Directive #15-08 created the current system, they could fix it this way without violating the statute's language. A Hearing Officer or Judge could issue a warrant (and thus suspend a license) when proper notice was given, but would have discretion.  (Retired Hearing Officer) Norman Epting described the frustration of being forced to either not take action and just rescheduling a case when an obligor didn't appear, or issuing a warrant that would probably cost someone their job and ability earn. Using a capias instead of a warrant would fix that -- someone doesn't appear, he issues a capias and the person can still drive to court to answer it. If a capias has been in place for a period of time without effect, or the obligor is out of state and not likely to be extradited on a warrant, or other good cause, then he could request a warrant.

Obviously, the rest of the issues (adequate notice, appointment of counsel, etc) are things that hopefully could be talked about, and there could be wording issues, but this was a sort of "out-of-the-box" idea I'd like to suggest that would tackle the biggest hurdle to a voluntary settlement.  Any thoughts on it, anyone?

________________________

Also, the one aspect that should bother everyone the most is the failure of MVC to provide notice that a license has been suspended before the suspension is effective. If an order is issued suspending a license, MVC is to notify the person and the effective date of the suspension shall be 20 days after the postmark of the notice.  Under current procedures, the AOC doesn't consider a warrant to constitute an "order" and thus if a license is automatically suspended via the issuance of a warrant (even if the violation of "2 week bench warrant status" results in the suspension years after the default), the obligor gets a notice days AFTER the suspension is effective.  Three of the four named plaintiffs thus found out about a suspension by getting a ticket for Driving While Revoked and having his/her car towed.  Andreana Kavadas' "two week bench warrant" status was entered seven years earlier.

It's just... offensive to every notion of fundamental fairness and due process that we would impose criminal penalties on someone without giving them notice beforehand and only extend this "20 day warning" to stop driving to people who are suspended via a hearing (all 109 of them last year), but not people who are suspended as a result of a warrant (that'd be 20,498 last year).

Anyway, more to come on this. The system needs to change, but this aspect is outrageous and should have been changed by consent.

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

Update:

I've added a very abbreviated version of the stipulations being proposed to Judge Jacobson.


For anyone with some familiarity with the issues who is not 100% clear as to the basis for the suit and why the current procedures for automatic suspensions deny due process, I am attaching a greatly abbreviated version of the stipulations being proposed. With some background understanding of Constitutional law, reading these (none of which can be denied) should make clear in just a few pages what the suit is about and why the current process is unfair, counter-productive, and does not pass Constitutional muster:  http://dpdlaw.com/Kavadas.htm

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

Updates:

A case management conference will be held on Monday August 3 at 10:00 a.m.. Plaintiffs will also ask the court to address their proposed stipulations on various factual and legal issues in order to determine what additional discovery is needed.

Defendants never filed an answer to the complaint and default was entered on July 29. At the case management conference, the parties will address plaintiffs' offer to vacate default via a consent order contingent on an agreement that The New Jersey Motor Vehicle Commission immediately begin complying with the requirement of N.J.S.A. 2A:17-56.44 that any license suspension under N.J.S.A. 2A:17-56.41 or N.J.S.A. 2A:17-56.43 (whether via the entry of a warrant or directly via a court order) will only be effective 20 days after the postmark of the notice from the MVC.

All the associated documents are online:  http://dpdlaw.com/Kavadas.htm

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

Update: A motion was filed today seeking partial summary judgment as to the issue of providing people whose licenses are suspended with the "20 day warning" provided by N.J.S.A. 2A:17-56.44 so they can stop driving and address the issue without incurring a criminal charge for Driving While Revoked (along with being towed, paying fines, incurring surcharges, etc).

The State has thus far adopted the position that (1) only people who already receive notice of a suspension (those suspended by an order after a hearing) are entitled to notice from the MVC. Those suspended automatically "without further notice" (via the issuance of a warrant) are not entitled to the notice set out in the statute, and (2) there's no due process or basic fairness issue with such people receiving a letter from MVC telling them their license was suspended (past tense) several days ago, or by their learning of a suspension by being arrested for Driving While Revoked. No, that's not a typo, folks -- that's the argument your tax dollars are funding.

As of today, since the May 1 filing of the complaint, $616,992 has been paid to the MVC by defaulted obligors (73% of whom earn less than $10,000 per year). But, hey, the MVC needs those funds much more than the children of the poorest of the poor, right? A small price to pay for the State to defend a counter-productive process that blatantly violates due process.

A copy of the partial summary judgment motion is online: http://dpdlaw.com/Kavadas.htm

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

Am I correct that motor vehicle was privatized
Maybe the AG should not have a dog in this fight


Sent from my iPhone


Original Message------

Update: A motion was filed today seeking partial summary judgment as to the issue of providing people whose licenses are suspended with the "20 day warning" provided by N.J.S.A. 2A:17-56.44 so they can stop driving and address the issue without incurring a criminal charge for Driving While Revoked (along with being towed, paying fines, incurring surcharges, etc).

The State has thus far adopted the position that (1) only people who already receive notice of a suspension (those suspended by an order after a hearing) are entitled to notice from the MVC. Those suspended automatically "without further notice" (via the issuance of a warrant) are not entitled to the notice set out in the statute, and (2) there's no due process or basic fairness issue with such people receiving a letter from MVC telling them their license was suspended (past tense) several days ago, or by their learning of a suspension by being arrested for Driving While Revoked. No, that's not a typo, folks -- that's the argument your tax dollars are funding.

As of today, since the May 1 filing of the complaint, $616,992 has been paid to the MVC by defaulted obligors (73% of whom earn less than $10,000 per year). But, hey, the MVC needs those funds much more than the children of the poorest of the poor, right? A small price to pay for the State to defend a counter-productive process that blatantly violates due process.

A copy of the partial summary judgment motion is online: http://dpdlaw.com/Kavadas.htm

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

Good thought, Judge... But we "went there" early on. Some agency functions have been privatized, but suspending licenses is a governmental function and the MVC itself is a government agency.  Not even the AG's office, who seem to want to argue over what time of day it is (in an attempt to tap dance a distraction  from the simple due process issues) have admitted that the MVC is a government agency and that Chief Administrator Martinez is a state actor for purposes of the NJ Civil Rights Act and s 1983.  From their answer to the complaint: 14. Admitted that Defendant Raymond P. Martinez ("Chief Martinez") is the Chief Administrator of the New Jersey Motor Vehicle Commission ("MVC") and that he is a "State Actor" Defendants deny the remaining allegations of this paragraph. ( www.dpdlaw.com/Kavadas.htm - "Answer to Complaint").

When I say tap dance over ridiculous issues, I'm not kidding.  Note how the AG's office "deny the remaining allegations of this paragraph"?  Here's the paragraph:

14. Defendant Raymond P. Martinez is the Chief Administrator of the New Jersey Motor Vehicle Commission. He is a state Actor. As a state actor generally, and specifically pursuant to N.J.S.A. 39-2-2, he has a duty to uphold the Constitution of the United States and of the State of New Jersey. His duties include suspending and reinstating driver's privileges.

So - they admit he's the Chief Administrator and he's a state actor. But they "deny" -

1 - "As a state actor generally, and specifically pursuant to N.J.S.A. 39-2-2, he has a duty to uphold the Constitution of the United States and of the State of New Jersey."

N.J.S.A. 39:2-2. (Director of division of motor vehicles; appointment; term; salary; bond; oath) says "The director shall take an oath before one of the supreme court justices or superior court judges, in form similar to that now required by the State Treasurer, which oath shall be filed with the Secretary of State."  We know that oath.... that one about "upholding and defending the Constitution of the United States and the State of New Jersey"... the one we all took when being sworn in - and the one the AG took when being sworn in as AG... the one that's not getting a lot of mileage by their avoidance of the Constitutional issues here by doing things like denying this while a lot of the most vulnerable people (noncustodial parents unable to pay with no license, custodial parents, and the kids who need support) in our State get hurt by an absurdly unconstitutional process.

2 - And "His duties include suspending and reinstating driver's privileges."

Certainly that one needed to be "denied" and everyone's acting in good faith here.... not.  N.J.S.A. 39:5-30. says "a. Every ... every license ...  may be suspended or revoked .... by the director .... "  So it's denied exactly why??


When I filed this and made the statement about how I was sure it would get resolved when the right people realized what was going on, I believed it. I thought 200 hours spread out over five months would be it. The system wasn't set up by those currently running it and once those now running things saw the problem, it would be addressed. Our state doesn't generally enact or maintain policies that are stupid, counter-productive, and unconstitutional (not to mention in contravention to the current policy from the Federal Office of Child Support Enforcement). It goes back to either AOC Director Judge James Ciancia or Judge Richard Williams... and even then, the blame isn't clear. AOC Directive #10-95 doesn't say warrants must issue on default "without further notice", somehow it was policy by #02-04. Anyway, at this point, the State's choice not to address the legal issues - appointment of counsel before the "consequence of magnitude" of a license suspension is imposed as per the NJ SCT in State v. Moran, the issue of whether a notice included with a Title IV-D order and a later threat letter (neither of which instruct an obligor that she is entitled to a hearing) complies with Due Process as per Mathews v. Eldridge... this what should have been argued via a motion to dismiss as the State did in Pasqua (appointment of counsel) and Leonard (72 hour rule), or they should have consented like they did in W.M. (compelling attendance at religious 12 step groups without offering a secular alternative).  Instead, they are denying things in bad faith, serving roggs, and deposing all the plaintiffs as well as dragging Norman Epting in. My original sentiments on this case were correct, that it's a stupid, counter-productive, racist (in practice if not design) system that is hurting a whole of people. Judge Jacobson offered the name an alternate dispute resolution professional when we were last on the record in court... the State didn't want to hear it. And the fact that none of this bothers those with the power to change it says a whole lot.

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

I don't get it
Do you know who in the AG 's office
Is calling the shots

Sent from my iPhone


Original Message------

Good thought, Judge... But we "went there" early on. Some agency functions have been privatized, but suspending licenses is a governmental function and the MVC itself is a government agency.  Not even the AG's office, who seem to want to argue over what time of day it is (in an attempt to tap dance a distraction  from the simple due process issues) have admitted that the MVC is a government agency and that Chief Administrator Martinez is a state actor for purposes of the NJ Civil Rights Act and s 1983.  From their answer to the complaint: 14. Admitted that Defendant Raymond P. Martinez ("Chief Martinez") is the Chief Administrator of the New Jersey Motor Vehicle Commission ("MVC") and that he is a "State Actor" Defendants deny the remaining allegations of this paragraph. ( www.dpdlaw.com/Kavadas.htm - "Answer to Complaint").

When I say tap dance over ridiculous issues, I'm not kidding.  Note how the AG's office "deny the remaining allegations of this paragraph"?  Here's the paragraph:

14. Defendant Raymond P. Martinez is the Chief Administrator of the New Jersey Motor Vehicle Commission. He is a state Actor. As a state actor generally, and specifically pursuant to N.J.S.A. 39-2-2, he has a duty to uphold the Constitution of the United States and of the State of New Jersey. His duties include suspending and reinstating driver's privileges.

So - they admit he's the Chief Administrator and he's a state actor. But they "deny" -

1 - "As a state actor generally, and specifically pursuant to N.J.S.A. 39-2-2, he has a duty to uphold the Constitution of the United States and of the State of New Jersey."

N.J.S.A. 39:2-2. (Director of division of motor vehicles; appointment; term; salary; bond; oath) says "The director shall take an oath before one of the supreme court justices or superior court judges, in form similar to that now required by the State Treasurer, which oath shall be filed with the Secretary of State."  We know that oath.... that one about "upholding and defending the Constitution of the United States and the State of New Jersey"... the one we all took when being sworn in - and the one the AG took when being sworn in as AG... the one that's not getting a lot of mileage by their avoidance of the Constitutional issues here by doing things like denying this while a lot of the most vulnerable people (noncustodial parents unable to pay with no license, custodial parents, and the kids who need support) in our State get hurt by an absurdly unconstitutional process.

2 - And "His duties include suspending and reinstating driver's privileges."

Certainly that one needed to be "denied" and everyone's acting in good faith here.... not.  N.J.S.A. 39:5-30. says "a. Every ... every license ...  may be suspended or revoked .... by the director .... "  So it's denied exactly why??


When I filed this and made the statement about how I was sure it would get resolved when the right people realized what was going on, I believed it. I thought 200 hours spread out over five months would be it. The system wasn't set up by those currently running it and once those now running things saw the problem, it would be addressed. Our state doesn't generally enact or maintain policies that are stupid, counter-productive, and unconstitutional (not to mention in contravention to the current policy from the Federal Office of Child Support Enforcement). It goes back to either AOC Director Judge James Ciancia or Judge Richard Williams... and even then, the blame isn't clear. AOC Directive #10-95 doesn't say warrants must issue on default "without further notice", somehow it was policy by #02-04. Anyway, at this point, the State's choice not to address the legal issues - appointment of counsel before the "consequence of magnitude" of a license suspension is imposed as per the NJ SCT in State v. Moran, the issue of whether a notice included with a Title IV-D order and a later threat letter (neither of which instruct an obligor that she is entitled to a hearing) complies with Due Process as per Mathews v. Eldridge... this what should have been argued via a motion to dismiss as the State did in Pasqua (appointment of counsel) and Leonard (72 hour rule), or they should have consented like they did in W.M. (compelling attendance at religious 12 step groups without offering a secular alternative).  Instead, they are denying things in bad faith, serving roggs, and deposing all the plaintiffs as well as dragging Norman Epting in. My original sentiments on this case were correct, that it's a stupid, counter-productive, racist (in practice if not design) system that is hurting a whole of people. Judge Jacobson offered the name an alternate dispute resolution professional when we were last on the record in court... the State didn't want to hear it. And the fact that none of this bothers those with the power to change it says a whole lot.

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

Judge... I would love to know. Of the three DAG's the State has assigned to fight it, I could guess which one of them is a "true believer", but I don't think she's the ultimate decision maker. It reminds me of one of those cases where DNA clears someone, but they sit in prison while the State fights it, with everyone scratching their heads as to why.... It appears that sometimes the AG's office is more concerned with "winning" than with doing the right thing, regardless of how many people (here, kids in poverty who can't get support when a parent can't drive to work) - that's my only guess.


Update: The State wrote Judge Jacobson today and (surprise! surprise!) wants to delay the motion until Christmas. They researched the law on putting off a partial summary judgment motion when there's no material facts at issue and thus didn't provide any legal authority to the court. But, not to worry, I grabbed it for them and included it. Keeping fingers crossed that it'll be calendared on an expedited basis and not bumped.


Update on numbers (the website updates every hour): As of today, since the May 1 filing of the complaint, $639,729  has now been paid to the MVC. 5,714 licenses have been suspended, with 5,710 occurring automatically (no contemporaneous hearing). In 117 days, New Jersey has suspended more drivers' licenses than the next 14 states combined... and we remain the only state in the country to do this without a contemporaneous hearing to see whether it's justified or would be counterproductive ( http://www.ncsl.org/research/human-services/license-restrictions-for-failure-to-pay-child-support.aspx ). Jersey proud all the way!


A copy of the correspondence and partial summary judgment motion is online: http://dpdlaw.com/Kavadas.htm

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

David
Can you contact me either by email
[email protected]<mailto:[email protected]>
Or
[email protected]<mailto:[email protected]>
Or text

I don't know how the family law site
Works and prefer to contact you directly
And give me an email to send to or a text
Number


Sent from my iPhone

Original Message------

Judge... I would love to know. Of the three DAG's the State has assigned to fight it, I could guess which one of them is a "true believer", but I don't think she's the ultimate decision maker. It reminds me of one of those cases where DNA clears someone, but they sit in prison while the State fights it, with everyone scratching their heads as to why.... It appears that sometimes the AG's office is more concerned with "winning" than with doing the right thing, regardless of how many people (here, kids in poverty who can't get support when a parent can't drive to work) - that's my only guess.


Update: The State wrote Judge Jacobson today and (surprise! surprise!) wants to delay the motion until Christmas. They researched the law on putting off a partial summary judgment motion when there's no material facts at issue and thus didn't provide any legal authority to the court. But, not to worry, I grabbed it for them and included it. Keeping fingers crossed that it'll be calendared on an expedited basis and not bumped.


Update on numbers (the website updates every hour): As of today, since the May 1 filing of the complaint, $639,729  has now been paid to the MVC. 5,714 licenses have been suspended, with 5,710 occurring automatically (no contemporaneous hearing). In 117 days, New Jersey has suspended more drivers' licenses than the next 14 states combined... and we remain the only state in the country to do this without a contemporaneous hearing to see whether it's justified or would be counterproductive ( http://www.ncsl.org/research/human-services/license-restrictions-for-failure-to-pay-child-support.aspx ). Jersey proud all the way!


A copy of the correspondence and partial summary judgment motion is online: http://dpdlaw.com/Kavadas.htm

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

Update: Not good.

The court ordered that the application for partial summary judgment on the issue of whether obligors suspended as the result of a warrant will be heard at the same time as the rest of the case - in December http://dpdlaw.com/kavadas.htm .

Putting aside the issue of fairness to all obligors who default on a two week warrant status order as the result of an inability (not refusal) to comply and who should be receiving notice of a suspension before it happens under the text of the statute, the uncontested evidence before the court included an OPRA response from the MVC showing that an average of 400 drivers per year are suspended erroneously - wrong person completely, or they had in fact appeared to answer a summons, or some other error. Holding this motion until December means that roughly 130 completely innocent people wrongfully suspended (and roughly 1,600 others) will be subject to arrest, towing, having to go to court, etc without having had notice of the suspension. The MVC has immunity from damages, so none of them get repaid for towing fees, legal fees to answer the ticket, potentially having to sit in jail if the court imposed bail for an erroneous Driving While Revoked charge.

Question: Does anyone see any chance that the App Div would consider (it would obviously be interlocutory) a challenge to the order delaying this until December? On the one hand, it's a pure question of law and it's hurting a lot of people, on the other it's not that long considering that the statute has been in place since 1998.

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

I didn't explain that well.

The only issue presented to the court for partial summary judgment was whether obligors are entitled to notice of a suspension before it is imposed. 2A:17-56.44 states that "upon receipt of an order requiring the suspension of a license, the licensing authority shall immediately notify the licensee of the effective date of the suspension or revocation, which shall be 20 days after the postmark of the notice." 

This does not happen. All the plaintiffs submitted documentation from MVS showing that the suspension at issue was imposed and effective prior to the date of the notice. Three of the plaintiffs recounted being pulled over and informed they had a suspended license, and being charged with Driving While Revoked. Two of them had a car towed as a result. All of them ended up taking pleas bargains and paying fines. When one is charged with Driving While Revoked, a court can set bail and, if the person doesn't have it, they sit in the County jail. The statute is clear and unambiguous and this should never be happening.

The State ignored that issue in their initial response and then argued in a sur-reply... well, I'll post the letter brief below. It's not long. The State's argument was lacking in merit and shouldn't have been snuck into a sur-reply submitted days before oral argument.

This was the only issue the court was asked to rule on in the partial summary judgment motion, which should have been scheduled for September 18 but, via a letter request from the State, will now continue until December (barring, of course, the inevitable adjournment requests the state will make). So, as per my previous message, roughly 130 people will be suspended in error, and 1600+ who default on a two-week warrant status order will be suspended and then notified by the MVC. I am disappointed that, with no facts contested (everything coming from MVC and the DFD), a court wouldn't consider this important enough to review on a motion for partial summary judgment. The Rule says such a motion may be filed at any time - apparently, this doesn't apply if irrelevant discovery requests are outstanding (State didn't so much as allege that any of the facts were in issue).


Same question, though....  Does anyone see any chance that the App Div would consider (it would obviously be interlocutory) a challenge to the order delaying this until December? On the one hand, it's a pure question of law and it's hurting a lot of people, on the other it's not that long considering that the statute has been in place since 1998.

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


Dear Judge Jacobson:
        Please accept this letter brief in lieu of a more formal submission in support of plaintiffs' application.
        Relevant procedural history
        Plaintiffs filed a complaint and application for an order to show cause on May 1, 2015. Defendants filed opposition to the application on June 26. Although it was included with plaintiffs' application and thoroughly briefed, the State did not address the issue of requiring the Motor Vehicle Commission to begin complying with the mandate of N.J.S.A. 2A:17-56.44 that support-related license suspensions be effective 20 days after the postmark of the notice informing the obligor of the suspension. Plaintiffs filed a reply on July 13.
        Defendants sought leave to file a surreply brief on July 15. Because plaintiffs had addressed new issues in their reply relief regarding statutory construction and whether the AOC had greatly exceeded its constitutional authority in the issuance of Directive #15-08 by providing insufficient due process before warrants (with resulting automatic license suspensions) issue, plaintiffs consented to a surreply as to those issues.
        In its surreply, for the first time, defendants addressed plaintiff's argument as to providing the statutorily required 20 days notice to obligors whose licenses are suspended. Defendants' surreply brief was filed and served five days before oral argument. Plaintiffs' attempted to file a response two days later on July 17, but did not have leave of the Court to do so as there had been no time to request same. Defendants should not have presented a new argument in a surreply to which plaintiffs had no right to respond.
        Plaintiffs now file this application seeking partial summary judgment as to the singular issue of compelling the New Jersey Motor Vehicle Commission to provide fair notice to all persons facing a license suspension as the result of support arrears.
        Statement of Facts
        A Statement of Material Facts is attached. These are the only relevant facts. They are not in dispute and cannot be challenged:
  1.    Plaintiffs are child support obligors.
  2.    Plaintiffs are subject to "two week warrant status" orders.
  3.    Plaintiffs have, for periods of at least two years each, been in arrears that exceed that amount of support due for two weeks.
  4.    Plaintiffs' licenses are subject to automatic suspension as the result of the issuance of a child support-related warrant.
  5.    Pursuant to Directive #15-08, plaintiffs are not entitled any notice prior to the issuance of a warrant.

        Legal Argument

        I. THE COURT SHOULD GRANT PARTIAL SUMMARY JUDGMENT AND ENJOIN THE MVC FROM CONTINUING TO VIOLATE THE NOTICE PROVISIONS OF N.J.S.A. 39:5-30 AND N.J.S.A. 2A:17-56.44.
                A.      Summary judgment is appropriate when, as here, there are no genuine issues of material fact.
        Rule 4:46-1 permits a party seeking affirmative relief to move for partial summary judgment at any time after the expiration of 35 days from the service of the pleading claiming such relief.
        Summary judgment may be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See, R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
        While plaintiffs maintain that all the issues before this court are legal and not factual, the issue of obligors receiving adequate notice of a suspension is not contingent on any matters beyond those set forth in the annexed Statement of Material Facts (Exhibit G).
                 B.     Background as to suspension of licenses as the result of an obligor defaulting on a support order.
        There are two primary methods by which driver's licenses can be suspended as the result of child support arrears.
        After a certain level of arrears develop, probation may schedule a hearing pursuant to N.J.S.A. 2A:17-56.43. The statute provides criteria that must be addressed in the context of a hearing as to whether a suspension would be justified and coercive rather than counterproductive and as to whether there is any equitable reason, such as involuntary unemployment or disability, that would mitigate against a license suspension. In 2014, 109 obligor's licenses were suspended as the result of a such hearing (See Exhibit A-1).
        Although otherwise only addressing the procedure to be employed when a license suspension is at issue, N.J.S.A. 2A:17-56.41(3)(a) contains a single line mandating the suspension of an obligor's license "by operation of law upon the issuance of a child support-related warrant."  The Administrative Office of the Courts has instructed that when an obligor defaults, "the order may provide that if future payments are missed, a warrant may be issued without any additional notice to the obligor." AOC Directive #15-08 at page 3-4. In 2014, 20,381 [FN 1] licenses were suspended via this method - without a hearing and without the obligors receiving any notice that they had lost their license.
        Additionally, an OPRA request revealed that the Motor Vehicle Commission erroneously suspends an average of 400 obligors per year (Exhibit A-2, A-3). An erroneous suspension means that the license was not held by the support obligor, the order at issue had been vacated, the obligor had in fact appeared to answer a summons, or some other error occurred in the system. None of these people received notice that their license was being suspended.
        The statute that permits the MVC to suspend licenses makes clear that this can never occur without notice. N.J.S.A. 39:5-30 states, in relevant part:
        a. Every . . . privilege to drive motor vehicles . . . may be suspended or revoked by the director for a violation of any of the provisions of this Title or on any other reasonable grounds, after due notice in writing of such proposed suspension, revocation, disqualification or prohibition and the ground thereof." (Emphasis added).
        More specifically, N.J.S.A. 2A:17-56.44 states that "upon the receipt of an order requiring the suspension or revocation of a license, the licensing authority shall immediately notify the licensee of the effective date of the suspension, which shall be 20 days after the postmark of the notice."
        Suspending licenses without notice is thus violative of the text of two statutes, of explicit case law, of every basic notion of procedural due process, and is fundamentally unfair. This Court is asked to grant partial summary judgment in plaintiff's favor and enjoin the MVC from continuing it.

         C.     A "license" includes a driver's license and a warrant is an order.
        In its surreply, defendants argued that a warrant is fundamentally different from an order and that the statute requiring  notification be provided to obligors suspended via a warrant does not apply as the definition of "license" does not include a "driver's license."
        The idea that a "license" does not include a driver's license is belied not only by common sense, but by the "definitions" section of the New Jersey Child Support Improvement Act ("the Act.")
        N.J.S.A. 2A:17-56.52 provides that, for purposes of the Act (which would obviously include but not be limited to N.J.S.A. 2A:17-56.44): "License" means any license, registration or certificate issued by the State or its agencies or boards that is directly necessary to provide a product or service for compensation, to operate a motor vehicle, or for recreational or sporting purposes. (Emphasis added).
        Therefore, a license includes a driver's license and is subject to the statute.
        Defendants next argued "The Legislature was clear in its language that the 20 days' notice given by the licensing authority, here the MVC, applies when the Court orders the suspension of a license, not when a warrant is issued suspending a license." (Exhibit B at 13).
        The underlying premise of this argument - that a warrant and an order are legally distinguishable - is erroneous. A warrant is an order.
        The word "order" is clearly defined in the law. Black's Law Dictionary defines an order as "A mandate. precept; a command or direction authoritatively given ..." http://thelawdictionary. org/order/ (visited 8/9/15). There is no definition of the word "order" that excludes a command or direction authoritatively given to a third party.
        A warrant is "1. A writ or precept from a competent authority in pursuance of law, directing the doing of an act, and addressed to an officer or person competent to do the act, and affording him protection from damage, if he does it. People v. Wood, 71 N.Y. 376 (1877). 2. Particularly, a writ or precept issued by a magistrate, justice, or other competent authority, addressed to a sheriff, constable, or other officer, requiring him to arrest the body of a person therein named, and bring him before the magistrate or court... 3. A warrant is an order by which the drawer authorizes one person to pay a particular sum of money" citing Shawnee County v. Carter, 2 Kan. 130 (1863) (Emphasis added). Other legal dictionaries provide essentially identical definitions for this common word, all of which affirm that a warrant is an order. "A warrant is an order giving law enforcement authorization to take a particular action." http://dictionary.reference.com/browse /warrant (Emphasis added) (visited 8/9/15). See also, http:// thelawdictionary.org/warrant-of-arrest/ (visited 8/9/15) (an arrest warrant is " [a ] written order. . . " citing Brown v. State, 109 Ala. 70, 20 So. 103  (1895)); People v. Smith, 926 P.2d 186 (Colo.App.1996) ("An arrest warrant is an order from a court directed to any peace officer commanding the arrest of the person named or described in the order.) (Emphasis added); People v. Kempner, 208 N.Y. 16 (1913); ("Arrest Warrant: A written order issued by authority of the state and commanding the seizure of the person named") http://legal-dictionary.thefreedictionary.com /Arrest+Warrant (visited 8/9/15).
        Unquestionably, a warrant is an order. [FN 2] That is, it is a command signed by a judge requiring that some act occur. From as far back as legal authority goes, every definition of the term confirms that a warrant is therefore a type of order.
        Additionally, every warrant originates with an order. As Directive #15-08 notes, "The Court has discretion to order the issuance of a warrant ..." Id. at 6. [FN 3] Even if they were legally distinguishable, every warrant originates with an order. Legal semantics that do not withstand scrutiny should not serve to perpetuate the ongoing violation of plaintiffs' basic right to be notified before this "consequence of magnitude" is imposed.
        Finally, defendants' position as to this issue defies common sense. When an obligor is suspended via an in-court order, he or she is obviously present and advised of the suspension. No additional notice from the MVC would therefore be required. Conversely, when a warrant is issued "without further notice", the obligor has no notice of the suspension. Defendants' position -- that the legislature intended that only obligors who have already received notice at a hearing are covered by the statute, and those who are suspended "without additional notice" via the issuance of a warrant are not -- simply makes no sense. A statute should never be construed in a manner which leads to such a manifestly absurd result. Turner v. First Union Nat. Bank, 162 N.J. 75, 84, (1999) (citing Watt v. Mayor of Franklin, 21 N.J. 274, 278 (1956)); Cornblatt v. Barow, 153 N.J. 218, 242 (1998).

         D.     This matter is cognizable under the New Jersey Civil Rights Act.
        In its surreply, defendants argued "[a ]lthough the issue complained of by Plaintiffs appears to be enforcement related and not aimed at the constitutionality of the Act, no enforcement issue exists." (Exhibit B at page 12).
        In relevant part, plaintiffs' complaint asserts a cause of action under The New Jersey Civil Rights Act of 2004 (NJCRA). N.J.S.A. 10:6-1 to -2. N.J.S.A. 10:6-2(c) specifically provides jurisdiction to seek enforcement of state statutory rights. The NJCRA protects against the deprivation of and interference with "substantive rights, privileges or immunities secured by the Constitution or laws of this State" (Emphasis added). The NJCRA is thus a vehicle to protect and vindicate both constitutional and statutory rights and the bald claim that "there is no enforcement issue" is without support.
        To determine whether a statutory violation is actionable under the NJCRA, plaintiffs must establish that the statute at issue was intended to confer a benefit on plaintiffs...; (2) whether the benefit is not "so 'vague [or] amorphous' that its enforcement would strain judicial competence"; and (3) whether the law unambiguously imposes a binding obligation on defendants. See Tumpson v. Farina, 218 N.J. 450, 473 (2014), citing Blessing v. Freestone, 520 U.S. 329, 340-341 (1997).
        The existence of these factors here should be self-evident. The purpose for the notice requirement of N.J.S.A. 39:5-30 and 2A:17-56.44 is to provide fairness, due process, to alert suspended obligors so they will cease driving, and to provide an opportunity for those erroneously suspended to rectify the error. This (1) provides a direct benefit to plaintiffs, (2) is not in any way "vague [or] amorphous", and (3) imposes a binding obligation on the MVC to provide fair notice before a suspension is effective.
        In addition to the direct text of the statute requiring that the "20 day window" be provided, every case to address the issue has affirmed what would appear to be a common sense fairness and due process issue: It is mandatory that the State provide adequate notice before suspending a license, rather than leaving a driver to discover the suspension by being arrested, issued a summons, having his/her vehicle towed, and incurring criminal penalties for Driving While Revoked. See, e.g., Bechler v. Parsekian, 36 N.J. 242 (1961); Parsekian v. Cress, 75 N.J. Super. 405 (App. Div. 1962); State v. Wenof, 102 N.J.Super. (Law Div. 1968).
        The text of two statutes, along with basic notions of fundamental fairness, dictate that no person should learn of a suspension by being charged criminally, incurring fines and penalties that make it more difficult to pay support, incurring an additional punitive license suspension as a result of a Driving While Revoked conviction, and having their vehicle towed.
        As set forth in the annexed certifications, all of the named plaintiffs are on two week bench warrant status. All of them have arrears that exceed the amount of support due for two weeks. Therefore, any of them could be suspended pursuant to the procedures in Directive #15-08 "without additional notice." [FN 4]
        Leaving for another day the overall constitutionality of this process, there can be no question that all of them have a cognizable right under the NJCRA to receive the statutorily-mandated 20 day notice before a suspension is effective.
        Conclusion
        For the above reasons, plaintiffs respectfully aver that there are no material fact questions relevant to the singular issue now before the Court. The Court should enter partial summary judgment and require the MVC to immediately begin complying with N.J.S.A. 39:5-30 and N.J.S.A. 2A:17-56.44 by providing 20 days notice to obligors before a license suspension is effective.

Respectfully,


David Perry Davis, Esq.

Cc:     Shana Bellin, DAG, Esq. (Via hand delivery and PDF)
        Named plaintiffs (Via PDF)


[FN 1] The data provided by the Division of Family Development as to the number of licenses suspended last year (20,498, Exhibit A, page 1) differs significantly from the information provided by the Motor Vehicle Commission (45,634, Exhibit A, page 2). Counsel is continuing to pursue some explanation for the significant divergence. For purposes of this application, plaintiffs utilize the numbers supplied by the DFD, however the court should be aware that the number of suspensions may be more than double this amount.

[FN 2]  Citing not only to case law but to law review articles, attorney websites, and other general reference materials, a Google search of the phrase "an arrest warrant is an order" provides 14,400 results bearing that exact phrase.

[FN 3]  See also, box 17, page 2 of the form Title IV-D order, "ordering" the issuance of a warrant (E.g., Exhibit C-13).

[FN 4]  Directive #15-08 actually permits the issuance of a warrant based on the existence of any arrears whatsoever at any time - it does not restrict this to only those cases where an obligor has defaulted on a two week warrant status order: "B-1. Two Types of Hearings. To coerce payment from an obligor who has become delinquent . . . the court may conduct a hearing to enforce litigant's rights under R. 1:10-3. The obligor's appearance for an Expedited ELR hearing may be compelled by either the issuance of a warrant or a notice to appear." Directive #15-08 at page 4.



NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO RULE 4:46-1

        PLEASE TAKE NOTICE that, on _________________, at 9:00 a.m., or as soon thereafter as may be heard, the undersigned shall move in the Superior Court of New Jersey, Chancery Division, located at Mercer County Superior Court, New Criminal Courthouse, 400 North Warren Street, Trenton, before the Honorable Mary C. Jacobson, A.J.S.C. for an Order:

         A.     Granting partial summary judgment and enjoining the New Jersey Motor Vehicle Commission from continuing to violate the mandate of N.J.S.A. 39:5-30 and N.J.S.A. 2A:17-56.44 requiring that support-related license suspensions be effective 20 days after the postmark of the notice informing the obligor of a suspension;

        B.      For such further relief as the Court may deem equitable and just.

        Plaintiff shall rely on the enclosed certifications, letter brief, and attachments. Oral argument is requested.

Update: Discovery is ongoing. The State deposed Norman Epting this week. I've gathered over 500 pages of documents they're seeking.

And, well here's the real shocker ..... not. Numbers finally released by the Division of Family Development today (Friday, September 4, 2015) show a huge racial disparity in suspensions as the result of child support arrears. While non-whites make up roughly a quarter of the state's population, roughly 7 in 10 people suspended for arrears are people of color.  Wow, no one saw that one coming, eh?

In January, I used the "R" word when describing this system. Because there are now real-live attorneys on the other side of the case, I won't toss it out again -- at least not until this report has been provided to them and they have had the chance to ponder it and further consider what it's doing.

I remain surprised that the State has not only dug its heels in on fighting issues like having the decency to give people notice before a suspension is effective (rather than, as now, informing them after the fact - often by being pulled over and issued a Driving While Suspended ticket, which can require that $500 bail be posted) but it appears that no matter what is revealed as to all the reasons the current process needs to change and is wrong, counter-productive, and contrary to basic notions of equality, it's "scorch the earth"...

Show them that it's counter-productive and hurting collections? Doesn't matter.

Show them that automatic suspensions have devastating economic effects - thus making it harder to pay support? Doesn't matter.

Show them that $2 million per year is going to the MVC instead of kids in dire poverty? Doesn't matter (or...maybe that's all matters - and not in a good way?).

Show them that 99%+ of these people aren't even getting the notice that the statute says they're entitled to before a suspension is effective? Doesn't matter.

Show them that the federal government has explicitly encouraged states to rethink these policies? Doesn't matter.

Show them that states that have rethought them are seeing a jump in collections? Doesn't matter.

Show them that, in practice if not by design, there's a hugely disproportionate racial impact? Well... let's see and hope.

Judge Jacobson gave the name of an ADR professional she's worked with, and two retired judges have offered to assist in mediation. So far.... Doesn't matter.

A copy of the OPRA response documents and report / numbers on race are online: http://dpdlaw.com/Kavadas.htm

And my question for the week.... Do I need to amend the complaint to allege a disparate racial affect, or can it just be included under the already-alleged "unconstitutional practices" already in the complaint?

Oh, and to bug those of you who don't want to hear this stat -- I just crossed the 400 hour mark on this, and the stats (updated hourly on the site) are now:
        As of September 4, 2015, at 10:36 PM:
             � 3046 hours (127 days) have passed since the filing of the complaint.
             � 6214 defaulted obligors have had their license suspended.
             � 6207 (99.429%) were suspended automatically (no contemporaneous hearing).
             � 38 people (.529%) received a contemporaneous hearing.
             � At $100 per restoration fee, $695514 has been paid to the MVC - instead of to children in desperate poverty.
             � 4951 (73%) of those suspended earned less than $10,000 last year.
             � 140 people have had their licenses erroneously suspended - wrong person, wrong order, wrong license number, or some other error within the system. None of them received notice that the suspension was being imposed ... They'll find out when they get pulled over and issued a $250-500 summons for Driving While Revoked, or when they get an after-the-fact suspension notice from the MVC (and the State just delayed this single issue being heard on partial summary judgment until December). All of them faced having their car towed, being issued a summons, being arrested and having to post bail. None of them did anything wrong whatsoever - these were erroneous suspensions.

         We'll cross the $700,000 mark (paid to MVC instead of kids in poverty since the filing of the complaint) over the weekend at some point.

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

Update:  Retired Hearing Officer Norman Epting's deposition transcript is now online - http://www.dpdlaw.com/kavadas.htm . Makes for some good reading, an insider's perspective.

Bigger "wow" is the responses from the state as to discovery. Mind-boggling bad faith like I've never seen. Cutsey games that plain English words aren't understood. Words like "warrant" are "undefined and ambiguous." Denying (in response to Request for Admissions) things that are quotes from a statute. The below aren't even the greatest hits, just some that jump out. The italics are my comments.  Answers to roggs (also on the website) are similarly crap -- the MVC says that roughly 45,000 licenses per year are being suspended, the DFD says 21,000. So, since the AG represents both, I asked in roggs "How many driver's licenses have been suspended each year since 1997 as the result of child support related orders of any type (including warrants, direct orders, etc)?" and why the discrepancy exists. Even though they're the only ones in control of the information, they respond "Defendant objects to this interrogatory as it calls for speculation. Defendant further objects to this interrogatory as it calls for an interpretation of numbers outside of the knowledge of the Division of Family Development � Office of Child Support Services ("OCSS"). The request is also unduly burdensome. Accordingly, no response is given."

The mystery is why they are fighting so hard to maintain a system that the Federal Government has acknowledged needs to change as it's counter-productive. So, to keep $2 million per year ($770,936 since the filing of the complaint as of today) coming in from restoration fees - instead of going to support the children of the poorest of the poor.



"Responses to Request for Admissions":

Request for admission 2. Plaintiffs are facing or have already incurred a suspension of their driver's license.

"Answer" - 2. Defendants object to the use of the term "facing". The term "facing" is not defined or placed in any context and is therefore ambiguous. Thus, Defendants can neither admit nor deny.


Request for admission 4. Chief Administrator Raymond P. Martinez is a State Actor.
"Answer" - 4. This request asserts a question of law and accordingly no response is given.

Request for admission 5. Chief Administrator Raymond P. Martinez's duties include suspending and reinstating driver's licenses.
"Answer" - 5. Denied that Chief Administrator Raymond P. Martinet's personal duties include suspending and reinstating driver's licenses.  (Notice how they added the word "personal" before denying it.)

Request for admission 11. Natasha Johnson's duties include ensuring that the state's Child Support Program is operating constitutionally, properly, efficiently, and effectively.
"Answer" - 11. Denied
        (Note that this is a direct quote from the statute).

Request for admission 12. The stated intent of The New Jersey Child Support Improvement Act was "the efficient establishment of paternity and support obligations, and the effective enforcement and collection of child support obligations pursuant to the provisions of Personal Responsibility and Work Opportunity Reconciliation Act (the PRWORA)" and "to implement requirements which the State must adopt under the federal (PRWORA) of 1996."

"Answer" - 12. Defendants object to the term "stated intent". Plaintiffs do not indicate the source upon which stated the intent for purposes of this paragraph. The term is therefore ambiguous. This request asserts a question of law and accordingly no response is given.


Request for admission 17. If a state does not provide adequate procedures to guard against an erroneous deprivation, the suspension of a license is not rationally related to a legitimate state interest and is not a constitutional method of coercing obligors to pay child support.
"Answer" - 17. Defendants object to this request as it is argumentative and calls for a legal conclusion. Defendants object to the use of the term "license" as undefined, out of context and therefore ambiguous. Accordingly, no response is given.

Request for admission 20. Approximately 80% of obligors attending ELR hearings are placed on "two week warrant status", meaning that an order (or "stipulation") is entered providing that a warrant may be issued without any additional notice if an amount equal to two future payments are missed.
"Answer" - 20. Defendants object to the use of the included statistic as undefined, out of context, and argumentative. Defendants further object to this request to the extent that it interprets an order of the Administrative Office of the Courts and therefore is a question of law. Defendants are without sufficient information to admit or deny.  (Defendant, DFD, are the ones who keep the statistics).

Request for admission 29. The issuance of a warrant results in the automatic suspension of the obligor's driver's license.
"Answer" - 29. Defendants object to the use of the terms "warrant" and "automatic suspension" as undefined, out of context and therefore, ambiguous. Subject to and without waiving the foregoing objections, Defendants deny.

Request for admission 36.  There is no evidence that the issuance of a warrant alone is insufficient to ensure the obligor's attendance at the hearing.
"Answer" - 36. Defendants object to this request as not likely to lead to the discovery of admissible evidence, prejudicial, improper, and argumentative and calling for a legal conclusion. Defendants object to the use of the terms "evidence" and "alone as undefined, out of context, and therefore ambiguous. Defendants further object to this request as it is not directed at these defendants and/or to information in their possession or control. Subject to and without waiving the foregoing objections, Defendants deny.

Request for admission 71. At no point does any obligor receive a notice specifically informing him/her that his/her license will be suspended on a specific date unless a hearing is requested.
"Answer" - 71. Defendants object to this request as overly broad and calling for proof of a negative. Defendants further object to this request as it is not directed at these defendants and/or to information in their possession or control. Defendants are without sufficient information to either admit or deny. Accordingly, no response is given.

Request for admission 72. At no point does an obligor receive a notice specifically informing him/her that he/she has the right to a hearing to determine whether coercive action against him/her would be justified.
"Answer" - 72. Defendants object to the use of the terms "coercive action" and "justified" as undefined and therefore ambiguous. Defendants further object to this request on the basis that it calls for a legal conclusion. Accordingly, no response is given.

Request for admission 73. There is no standard procedure by which obligors are notified after a warrant is issued that a warrant has been issued.
"Answer" - 73. Defendants object to this request as overly broad and calling for proof of a negative. Defendants further object to this request as it is not directed at these defendants and/or to information in their possession or control. Defendants are without sufficient information to either admit or deny. Accordingly, no response is given.

Request for admission 76. The stated intent of The New Jersey Child Support Improvement Act was "the efficient establishment of paternity and support obligations, and the effective enforcement and collection of child support obligations pursuant to the provisions of Personal Responsibility and Work Opportunity Reconciliation Act (the PRWORA)" and "to implement requirements which the State must adopt under the federal (PRWORA) of 1996."
"Answer" - 76. Defendants object to this request on the basis that it calls for a legal conclusion. Accordingly, no response is given.


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

Original Message------

Update:  Retired Hearing Officer Norman Epting's deposition transcript is now online - http://www.dpdlaw.com/kavadas.htm . Makes for some good reading, an insider's perspective.

Bigger "wow" is the responses from the state as to discovery. Mind-boggling bad faith like I've never seen. Cutsey games that plain English words aren't understood. Words like "warrant" are "undefined and ambiguous." Denying (in response to Request for Admissions) things that are quotes from a statute. The below aren't even the greatest hits, just some that jump out. The italics are my comments.  Answers to roggs (also on the website) are similarly crap -- the MVC says that roughly 45,000 licenses per year are being suspended, the DFD says 21,000. So, since the AG represents both, I asked in roggs "How many driver's licenses have been suspended each year since 1997 as the result of child support related orders of any type (including warrants, direct orders, etc)?" and why the discrepancy exists. Even though they're the only ones in control of the information, they respond "Defendant objects to this interrogatory as it calls for speculation. Defendant further objects to this interrogatory as it calls for an interpretation of numbers outside of the knowledge of the Division of Family Development � Office of Child Support Services ("OCSS"). The request is also unduly burdensome. Accordingly, no response is given."

The mystery is why they are fighting so hard to maintain a system that the Federal Government has acknowledged needs to change as it's counter-productive. So, to keep $2 million per year ($770,936 since the filing of the complaint as of today) coming in from restoration fees - instead of going to support the children of the poorest of the poor.



"Responses to Request for Admissions":

Request for admission 2. Plaintiffs are facing or have already incurred a suspension of their driver's license.

"Answer" - 2. Defendants object to the use of the term "facing". The term "facing" is not defined or placed in any context and is therefore ambiguous. Thus, Defendants can neither admit nor deny.


Request for admission 4. Chief Administrator Raymond P. Martinez is a State Actor.
"Answer" - 4. This request asserts a question of law and accordingly no response is given.

Request for admission 5. Chief Administrator Raymond P. Martinez's duties include suspending and reinstating driver's licenses.
"Answer" - 5. Denied that Chief Administrator Raymond P. Martinet's personal duties include suspending and reinstating driver's licenses.  (Notice how they added the word "personal" before denying it.)

Request for admission 11. Natasha Johnson's duties include ensuring that the state's Child Support Program is operating constitutionally, properly, efficiently, and effectively.
"Answer" - 11. Denied
        (Note that this is a direct quote from the statute).

Request for admission 12. The stated intent of The New Jersey Child Support Improvement Act was "the efficient establishment of paternity and support obligations, and the effective enforcement and collection of child support obligations pursuant to the provisions of Personal Responsibility and Work Opportunity Reconciliation Act (the PRWORA)" and "to implement requirements which the State must adopt under the federal (PRWORA) of 1996."

"Answer" - 12. Defendants object to the term "stated intent". Plaintiffs do not indicate the source upon which stated the intent for purposes of this paragraph. The term is therefore ambiguous. This request asserts a question of law and accordingly no response is given.


Request for admission 17. If a state does not provide adequate procedures to guard against an erroneous deprivation, the suspension of a license is not rationally related to a legitimate state interest and is not a constitutional method of coercing obligors to pay child support.
"Answer" - 17. Defendants object to this request as it is argumentative and calls for a legal conclusion. Defendants object to the use of the term "license" as undefined, out of context and therefore ambiguous. Accordingly, no response is given.

Request for admission 20. Approximately 80% of obligors attending ELR hearings are placed on "two week warrant status", meaning that an order (or "stipulation") is entered providing that a warrant may be issued without any additional notice if an amount equal to two future payments are missed.
"Answer" - 20. Defendants object to the use of the included statistic as undefined, out of context, and argumentative. Defendants further object to this request to the extent that it interprets an order of the Administrative Office of the Courts and therefore is a question of law. Defendants are without sufficient information to admit or deny.  (Defendant, DFD, are the ones who keep the statistics).

Request for admission 29. The issuance of a warrant results in the automatic suspension of the obligor's driver's license.
"Answer" - 29. Defendants object to the use of the terms "warrant" and "automatic suspension" as undefined, out of context and therefore, ambiguous. Subject to and without waiving the foregoing objections, Defendants deny.

Request for admission 36.  There is no evidence that the issuance of a warrant alone is insufficient to ensure the obligor's attendance at the hearing.
"Answer" - 36. Defendants object to this request as not likely to lead to the discovery of admissible evidence, prejudicial, improper, and argumentative and calling for a legal conclusion. Defendants object to the use of the terms "evidence" and "alone as undefined, out of context, and therefore ambiguous. Defendants further object to this request as it is not directed at these defendants and/or to information in their possession or control. Subject to and without waiving the foregoing objections, Defendants deny.

Request for admission 71. At no point does any obligor receive a notice specifically informing him/her that his/her license will be suspended on a specific date unless a hearing is requested.
"Answer" - 71. Defendants object to this request as overly broad and calling for proof of a negative. Defendants further object to this request as it is not directed at these defendants and/or to information in their possession or control. Defendants are without sufficient information to either admit or deny. Accordingly, no response is given.

Request for admission 72. At no point does an obligor receive a notice specifically informing him/her that he/she has the right to a hearing to determine whether coercive action against him/her would be justified.
"Answer" - 72. Defendants object to the use of the terms "coercive action" and "justified" as undefined and therefore ambiguous. Defendants further object to this request on the basis that it calls for a legal conclusion. Accordingly, no response is given.

Request for admission 73. There is no standard procedure by which obligors are notified after a warrant is issued that a warrant has been issued.
"Answer" - 73. Defendants object to this request as overly broad and calling for proof of a negative. Defendants further object to this request as it is not directed at these defendants and/or to information in their possession or control. Defendants are without sufficient information to either admit or deny. Accordingly, no response is given.

Request for admission 76. The stated intent of The New Jersey Child Support Improvement Act was "the efficient establishment of paternity and support obligations, and the effective enforcement and collection of child support obligations pursuant to the provisions of Personal Responsibility and Work Opportunity Reconciliation Act (the PRWORA)" and "to implement requirements which the State must adopt under the federal (PRWORA) of 1996."
"Answer" - 76. Defendants object to this request on the basis that it calls for a legal conclusion. Accordingly, no response is given.


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

Original Message------

Update:  Retired Hearing Officer Norman Epting's deposition transcript is now online - http://www.dpdlaw.com/kavadas.htm . Makes for some good reading, an insider's perspective.

Bigger "wow" is the responses from the state as to discovery. Mind-boggling bad faith like I've never seen. Cutsey games that plain English words aren't understood. Words like "warrant" are "undefined and ambiguous." Denying (in response to Request for Admissions) things that are quotes from a statute. The below aren't even the greatest hits, just some that jump out. The italics are my comments.  Answers to roggs (also on the website) are similarly crap -- the MVC says that roughly 45,000 licenses per year are being suspended, the DFD says 21,000. So, since the AG represents both, I asked in roggs "How many driver's licenses have been suspended each year since 1997 as the result of child support related orders of any type (including warrants, direct orders, etc)?" and why the discrepancy exists. Even though they're the only ones in control of the information, they respond "Defendant objects to this interrogatory as it calls for speculation. Defendant further objects to this interrogatory as it calls for an interpretation of numbers outside of the knowledge of the Division of Family Development � Office of Child Support Services ("OCSS"). The request is also unduly burdensome. Accordingly, no response is given."

The mystery is why they are fighting so hard to maintain a system that the Federal Government has acknowledged needs to change as it's counter-productive. So, to keep $2 million per year ($770,936 since the filing of the complaint as of today) coming in from restoration fees - instead of going to support the children of the poorest of the poor.



"Responses to Request for Admissions":

Request for admission 2. Plaintiffs are facing or have already incurred a suspension of their driver's license.

"Answer" - 2. Defendants object to the use of the term "facing". The term "facing" is not defined or placed in any context and is therefore ambiguous. Thus, Defendants can neither admit nor deny.


Request for admission 4. Chief Administrator Raymond P. Martinez is a State Actor.
"Answer" - 4. This request asserts a question of law and accordingly no response is given.

Request for admission 5. Chief Administrator Raymond P. Martinez's duties include suspending and reinstating driver's licenses.
"Answer" - 5. Denied that Chief Administrator Raymond P. Martinet's personal duties include suspending and reinstating driver's licenses.  (Notice how they added the word "personal" before denying it.)

Request for admission 11. Natasha Johnson's duties include ensuring that the state's Child Support Program is operating constitutionally, properly, efficiently, and effectively.
"Answer" - 11. Denied
        (Note that this is a direct quote from the statute).

Request for admission 12. The stated intent of The New Jersey Child Support Improvement Act was "the efficient establishment of paternity and support obligations, and the effective enforcement and collection of child support obligations pursuant to the provisions of Personal Responsibility and Work Opportunity Reconciliation Act (the PRWORA)" and "to implement requirements which the State must adopt under the federal (PRWORA) of 1996."

"Answer" - 12. Defendants object to the term "stated intent". Plaintiffs do not indicate the source upon which stated the intent for purposes of this paragraph. The term is therefore ambiguous. This request asserts a question of law and accordingly no response is given.


Request for admission 17. If a state does not provide adequate procedures to guard against an erroneous deprivation, the suspension of a license is not rationally related to a legitimate state interest and is not a constitutional method of coercing obligors to pay child support.
"Answer" - 17. Defendants object to this request as it is argumentative and calls for a legal conclusion. Defendants object to the use of the term "license" as undefined, out of context and therefore ambiguous. Accordingly, no response is given.

Request for admission 20. Approximately 80% of obligors attending ELR hearings are placed on "two week warrant status", meaning that an order (or "stipulation") is entered providing that a warrant may be issued without any additional notice if an amount equal to two future payments are missed.
"Answer" - 20. Defendants object to the use of the included statistic as undefined, out of context, and argumentative. Defendants further object to this request to the extent that it interprets an order of the Administrative Office of the Courts and therefore is a question of law. Defendants are without sufficient information to admit or deny.  (Defendant, DFD, are the ones who keep the statistics).

Request for admission 29. The issuance of a warrant results in the automatic suspension of the obligor's driver's license.
"Answer" - 29. Defendants object to the use of the terms "warrant" and "automatic suspension" as undefined, out of context and therefore, ambiguous. Subject to and without waiving the foregoing objections, Defendants deny.

Request for admission 36.  There is no evidence that the issuance of a warrant alone is insufficient to ensure the obligor's attendance at the hearing.
"Answer" - 36. Defendants object to this request as not likely to lead to the discovery of admissible evidence, prejudicial, improper, and argumentative and calling for a legal conclusion. Defendants object to the use of the terms "evidence" and "alone as undefined, out of context, and therefore ambiguous. Defendants further object to this request as it is not directed at these defendants and/or to information in their possession or control. Subject to and without waiving the foregoing objections, Defendants deny.

Request for admission 71. At no point does any obligor receive a notice specifically informing him/her that his/her license will be suspended on a specific date unless a hearing is requested.
"Answer" - 71. Defendants object to this request as overly broad and calling for proof of a negative. Defendants further object to this request as it is not directed at these defendants and/or to information in their possession or control. Defendants are without sufficient information to either admit or deny. Accordingly, no response is given.

Request for admission 72. At no point does an obligor receive a notice specifically informing him/her that he/she has the right to a hearing to determine whether coercive action against him/her would be justified.
"Answer" - 72. Defendants object to the use of the terms "coercive action" and "justified" as undefined and therefore ambiguous. Defendants further object to this request on the basis that it calls for a legal conclusion. Accordingly, no response is given.

Request for admission 73. There is no standard procedure by which obligors are notified after a warrant is issued that a warrant has been issued.
"Answer" - 73. Defendants object to this request as overly broad and calling for proof of a negative. Defendants further object to this request as it is not directed at these defendants and/or to information in their possession or control. Defendants are without sufficient information to either admit or deny. Accordingly, no response is given.

Request for admission 76. The stated intent of The New Jersey Child Support Improvement Act was "the efficient establishment of paternity and support obligations, and the effective enforcement and collection of child support obligations pursuant to the provisions of Personal Responsibility and Work Opportunity Reconciliation Act (the PRWORA)" and "to implement requirements which the State must adopt under the federal (PRWORA) of 1996."
"Answer" - 76. Defendants object to this request on the basis that it calls for a legal conclusion. Accordingly, no response is given.


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

Original Message------

Update: A sua sponte order was entered November 9 referring the matter to mediation (!)

If there is any hope this will be succesful (i.e., if the DAG gets actual settlement authority), it could be the best possible resolution. All kinds of things could be done via consent that might be more difficult for Judge Jacobson to order -- things that would dramatically improve both the fairness of the system and, based on the experience of other states, would boost the State's overall support collection rate.

The deadline for the final brief (for summary judgment) was thus moved to December 7 - this is a "real" deadline. Makes it tough as its still got to be worked on in the interim - if there is no resolution, there won't be much time before it's due.

Stats at this point -- 203 days have passed since the filing of the complaint. 9,914 defaulted obligors have had their license suspended without any notice that the suspension was immindent. At $100 per restoration fee, $1,110,838 has been paid to the MVC since the filing of the complaint - instead of to children in desperate poverty. 223 people have had their licenses erroneously suspended (based on 2014 record of 400 erroneous suspensions per year) - wrong person, wrong order, wrong license number, or some other error within the system. None of them received notice that the suspension was being imposed until after it happened. None of them did anything wrong whatsoever.


New orders entered on www.dpdlaw.com/kavadas.htm -  (1) Mediation order and (2) case management order.




<x-sigsep>

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

</x-sigsep>

Original Message------

Update: A sua sponte order was entered November 9 referring the matter to mediation (!)

If there is any hope this will be succesful (i.e., if the DAG gets actual settlement authority), it could be the best possible resolution. All kinds of things could be done via consent that might be more difficult for Judge Jacobson to order -- things that would dramatically improve both the fairness of the system and, based on the experience of other states, would boost the State's overall support collection rate.

The deadline for the final brief (for summary judgment) was thus moved to December 7 - this is a "real" deadline. Makes it tough as its still got to be worked on in the interim - if there is no resolution, there won't be much time before it's due.

Stats at this point -- 203 days have passed since the filing of the complaint. 9,914 defaulted obligors have had their license suspended without any notice that the suspension was immindent. At $100 per restoration fee, $1,110,838 has been paid to the MVC since the filing of the complaint - instead of to children in desperate poverty. 223 people have had their licenses erroneously suspended (based on 2014 record of 400 erroneous suspensions per year) - wrong person, wrong order, wrong license number, or some other error within the system. None of them received notice that the suspension was being imposed until after it happened. None of them did anything wrong whatsoever.


New orders entered on www.dpdlaw.com/kavadas.htm -  (1) Mediation order and (2) case management order.




<x-sigsep>

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

</x-sigsep>

Original Message------

Update - the State has agreed to attend mediation. Rather than using the mediator assigned in the referral order, we will be using Eric Max, director of the NJ Office of Dispute Settlement. I'd never heard of this group before, but it (as well as Eric Max) seem to be highly regarded (or so says MrGoogle).  We don't have dates yet.

Original Message------

Coming soon????

James J. Gluck, J.M.C.

Berkeley Township Municipal Court 

South Toms River Municipal Court

Original Message------

Car booting in New Jersey is permitted, but very infrequently used. There was something on it in the 5000+ pages of paperwork that went back and forth - it was tried and found to be inefficient.Aside from direct pay, the most successful methods are: (1) Wage garnishment, (2) Unemployment garnishment, (3) Tax intercepts (check out https://www.acf.hhs.gov/sites/default/files/programs/css/chapter5_0.pdf ).

But you since you raise the topic generally.... Discovery has produced a couple of bombshells. The biggest is that the AOC has been.... well, I said early on that I was going to try to be "nicer" about everything, not voice frustration - but this is a tough one. One of the provisions of the 1998 Child Support Improvement Act was a requirement that the AOC prepare an annual report to the legislature on the effectiveness of license suspensions. And, well, let's be nice and say that some rather large "mistakes" have been made to justify the jack-booted provisions of Directive #15-08 that permit the entry of a warrant when any arrears exist and "without notice." (Yes - the AOC grants itself the authority to issue a warrant upon the existence of any arrears - $1 for one day and they say they can do it).

All tad frustrating because there have been bills introduced almost every session to change and improve the license suspension program, but those that made it to a committee hearing died. A legislator's aide said to me early on that one of the reasons was that the AOC stats showed that license suspension accounted for 3% of collections - about $33,000,000 per year in New Jersey. Too large a number to turn one's back on when we're talking about a billion per year collected overall in New Jersey. Break it out per suspension and it's over $1,700 for each suspension.

Discouraging news. And, it turns out, it was propaganda of the first order (there I go again). After pushing and pushing on it, it turns out (1) there is NO evidence - not a single document - that says license suspension is $1 more effective than bring-to-court-warrants alone, and (2) the $33,000,000 number was pulled from the ether. No one knows where it came from. The actual number is about $5,000,000 - or less than 1/2 of 1% of all CS collected in New Jersey. And that's what is collected via warrants, which, in NJ (and in NJ alone), act to automatically suspend a driver's license without further hearing, inquiry, or notice. There remains NO proof that suspensions increased that number.

So, rather than $1700 per suspension, its actually an average of $268 per suspension. Not even close to overcoming the damage that suspensions do as far as causing job loss, lack of employment prospects, etc. See, I'm not yelling about a racist (70% of those suspended non-white), classist (74% of arrears owed by people earning less than $10,000 per year), brutal program applied in open defiance of Constitutional processes like "notice and an opportunity to be heard" and fundamental fairness like complying with N.J.S.A. 2A:17-56.44, which says a suspension will be effective 20 days after a suspension order is entered (instead, MVC sends a notice saying an obligor was suspended days before the notice issued - which has resulted in many people finding out they're suspended by being pulled over).

Draft of brief section is below for any really interested....





<x-tab>        </x-tab>Presumably aware of how serious a step it is to suspend a license, the legislature required that the coercive effect of license suspensions be justified and verified annually. Pursuant to N.J.S.A. 2A:1756.50 (Annual report), the AOC "shall submit an annual report to the Governor and the Legislature regarding the number and type of licenses suspended or revoked . . . and the total amount of child support collected due to 2A:1756.40 et seq."
<x-tab>        </x-tab>In 2006, 2007, and 2008, the AOC has submitted a "New Jersey Judiciary Report to the Legislature on the Suspension of Licenses Due to Child Support Arrears." (Exhibit H). Its representations to the legislature have been less than reliable.
<x-tab>        </x-tab>The report speaks in glowing terms as to the coercive effect of suspending driver's licenses (Exhibit E, page 1). The 2006 report states "The suspension of drivers' licenses as a coercive tool has been a successful, frequently employed method of collecting child support ... Clearly the implementation of this program has positively impacted families that rely upon receiving support."
<x-tab>        </x-tab>The report first lists out in detail the statutory criteria that the legislature painstakingly developed before a license should be suspended. It then notes in a single sentence that "the majority of licenses suspended are by operation of law." (Exhibit H at page 3). As set forth above, licenses suspensions by operation of law (upon the entry of a warrant) completely circumvent the statutory process and weighing of interests, occurring upon a simple default and "without any additional notice to the obligor." Ibid.
<x-tab>        </x-tab>The use of the word "majority" in the claim that "the majority of licenses suspended are by operation of law" is a drastic understatement. Pursuant to Open Public Records Act Request W95220 to the Division of Family Development (Exhibit E page 3), the Division initially claimed that "100% of the driver license suspensions were the result of the automatic process." Upon a request for confirmation of this somewhat surprising statement, the Division of Family Development corrected it and clarified that it is not true that 100% of suspensions are via the automatic process. In fact, "only" 20,381 of the 20,498 (99.429%) suspensions last year were imposed without a hearing. 108 (.0057%, one half of one percent) were suspended as the result of either a hearing or a combination of a hearing and the automatic process (Exhibit G, page 1).
<x-tab>        </x-tab>When 99.429% of the suspensions occur automatically and without a hearing, it would seem impossible to segregate what percentage of support collection is the result of license suspensions from what percentage is attributable to warrants alone.
<x-tab>        </x-tab>In response to a request to the Administrative Office of the Courts that it provide the data to support its conclusion that (contrary to what logic would seem to dictate) there is "clearly" an additional coercive effect in suspending driver's licenses over and above simply issuing a warrant requiring an obligor to appear (ExhibitE, page 1), the AOC replied that this data is maintained by the Division of Family Development (Exhibit E, page 2). Pursuant to Open Public Records Act Response W95220 to the Division of Family Development, the DFD admitted that there in fact are no documents to support this claim. (Exhibit E, page 3).
<x-tab>        </x-tab>The claim that the suspension of drivers' licenses as a coercive tool has "successful" and has "positively impacted families that rely upon receiving support" was also somewhat less than forthcoming.
<x-tab>        </x-tab>The reports submitted to the legislature in 2006 (-2010 XX?) contain impressive numbers related to support collections resulting from license suspensions. The report claims:

In the past state fiscal year ending June 30, 2006, 19,843 drivers' licenses were suspended and 22,626 were restored resulting in collections of $35,492,677 directly attributable to these actions. The drivers' license suspension/restoration project has made a significant impact in the child support arena as illustrated by its continued growth over the past few years. The state fiscal year 2006 figures exceeded the previous state fiscal year 2005 in which a total of 18,204 licenses were suspended and 20,035 were restored, resulting in $32,494,593 being collected for support.

<x-tab>        </x-tab>At an average of $33,000,000 (Thirty-Three million dollars) collected per year as the result of the suspension of an average of 19,000 licenses annually, each suspension would have brought in $1,737 per suspension. $33,000,000 accounts for just over 3% of all the child support collected in in New Jersey in 2010 (Exhibit XX, page 9).
<x-tab>        </x-tab>In discovery, plaintiffs pursued evidence of the claim that this amount of support was collected as the result of suspensions. The DFD responded by downwardly adjusting the claims as to how much support was collected as the result of suspensions by almost ninety percent:
<x-tab>        </x-tab>

	Year 2010	Year 2011	Year 2012	Year 2013	Year 2014
Driver's
Licenses
#Suspensions	18,668	21,037	20,483	22,024	20,498
Amount
Collected	$4,729,765.48	$6,108,163.74	$5,333,498.32	$6,087,718.50	$4,333,543.39

<x-tab>        </x-tab>The corrected figures show that, in fact, license suspensions have brought in an average of $5,300,000 (Five Million Three Hundred Thousand) per year or a mere $259 per suspension or roughly 15% of the amounts claimed by the AOC in its reports to the legislature - when it chose to comply with N.J.S.A. 2A:1756.50 at all. The revised figures also demonstrate that support-related warrants in fact account for less than one-half of one percent (.43%) of all collections. There is no justification for economic damage being done to over 20,000 obligors each year via the current suspension process.
<x-tab>        </x-tab>The conclusion of the "Report to the Legislature on the Suspension of Licenses Due to Child Support Arrears" that "The suspension of drivers' licenses as a coercive tool has been a successful, frequently employed method of collecting child support ... that has positively impacted families that rely upon receiving support" was less than accurate.
<x-tab>        </x-tab>In sum, the facts demonstrate that the current license suspension system is tremendously ineffective, denies obligors of constitutionally guaranteed due process and is counterproductive. The State has no cognizable interest in maintaining the current suspension program. This court must act to remedy it.

<x-tab>        </x-tab>

Year	Suspensions	Amount collected
2006	18,668	$4,729,765.48
2007	21,037	$6,108,163.74
2008	20,483	$5,333,498.32
2009	22,024	$6,087,718.50
2010	20,498	$4,333,543.39
2011	102,710	$26,592,689.43
TOTAL	20,542	$5,318,537.89
AVERAGE		$258.91

<x-sigsep>

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

</x-sigsep>

Original Message------

And some of us thought our last all-nighter would when were in High School! And then, certainly while undergrads! And then the "last round of exams" in law school....... and then cramming for the bar.... and then "as soon as I get used to this clerkship"...  And then the day hits when you realize there ain't no finish line on this stuff. Whether's its an overdue App Div brief or a "little" project that's taken an hour or two of work and is due next Monday, there's more all-nighters on the way.


Anyway, for anyone who's joined in thinking about these issues, the court wants very specific suggestions as to what remedies should be imposed - what changes the Constitution and law demand (and, as an aside, to make the system more effective)

Why they're appropriate is the 74 pages of brief preceding this, but any thoughts, on-list, off-list, whatever. Anything appreciated.

"Remedies" section (part of the "fun" is tagging the relief to the defendant, can't just list out what should be done - Natahsa Johnson is head of the DFD, Raymond Martinez is Chief Administrator of the MVC, for any who didn't know).

Thanks as always.




To remedy the defects in the current license suspension, the court should order:

A. Natasha Johnson should be precluded from transmitting any suspension orders, and Chief Administrator Martinez should be precluded from implementing and orders to suspend the driver's licenses of obligors, absent:

1. A contemporaneous finding having been made that an obligor has the current ability to comply with an order requiring payment of support and that a license suspension would thus be coercive. "Contemporaneous" should be defined for this purpose as a finding, based on evidence in the record, made within 90 days of the imposition of a license suspension.


2. That, in the absence of an ability to pay determination having been made within the preceding 90 days, an arrest warrant was issued only following an obligor having failed to respond to a summons to appear.


3. The obligor having received notice of his or her right to counsel, and having had counsel appointed for any indigent obligor. As per the procedure established by the Supreme Court in Pasqua v. Council, 186 N.J. 127 (2006), an Ability to Comply hearing may proceed if an obligor is found to be indigent, however, in the absence of counsel being appointed, license suspension shall not be available as a method of coercing compliance.


4. The obligor having received notice, via certified mail, RRR, that his/her license suspension shall be suspended on a specific date as a method of coercing compliance and that the obligor may avoid the suspension by satisfying outstanding arrears, providing ordered health insurance, or requesting a hearing wherein he or she will be permitted to present evidence as to whether there is an equitable reason, such as involuntary unemployment, disability, or compliance with a court ordered plan for the periodic payment of the child support arrearage amount, for the obligor's non compliance with the child support order (such as (DFD 188-197 XX)).


4. Reasonable efforts having been made to ensure that an obligor is literate and has received any notices and/or information related to the suspension process in his/her native language.

5. While a formula may be considered (such as 25% of outstanding arrears, and/or a payment plan that would satisfy arrears before a child is emancipated), a CSHO or judge shall be permitted discretion to determine an amount to be paid toward arrears consistent with the obligor's ability to pay.


B. Chief Administrator Martinez should be precluded:

1. From imposing a license suspension that is effective less than 20 days after the date of a notice informing an obligor of the impending suspension is mailed.



<x-sigsep>

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

</x-sigsep>

Original Message------

Car booting in New Jersey is permitted, but very infrequently used. There was something on it in the 5000+ pages of paperwork that went back and forth - it was tried and found to be inefficient.Aside from direct pay, the most successful methods are: (1) Wage garnishment, (2) Unemployment garnishment, (3) Tax intercepts (check out https://www.acf.hhs.gov/sites/default/files/programs/css/chapter5_0.pdf ).

But you since you raise the topic generally.... Discovery has produced a couple of bombshells. The biggest is that the AOC has been.... well, I said early on that I was going to try to be "nicer" about everything, not voice frustration - but this is a tough one. One of the provisions of the 1998 Child Support Improvement Act was a requirement that the AOC prepare an annual report to the legislature on the effectiveness of license suspensions. And, well, let's be nice and say that some rather large "mistakes" have been made to justify the jack-booted provisions of Directive #15-08 that permit the entry of a warrant when any arrears exist and "without notice." (Yes - the AOC grants itself the authority to issue a warrant upon the existence of any arrears - $1 for one day and they say they can do it).

All tad frustrating because there have been bills introduced almost every session to change and improve the license suspension program, but those that made it to a committee hearing died. A legislator's aide said to me early on that one of the reasons was that the AOC stats showed that license suspension accounted for 3% of collections - about $33,000,000 per year in New Jersey. Too large a number to turn one's back on when we're talking about a billion per year collected overall in New Jersey. Break it out per suspension and it's over $1,700 for each suspension.

Discouraging news. And, it turns out, it was propaganda of the first order (there I go again). After pushing and pushing on it, it turns out (1) there is NO evidence - not a single document - that says license suspension is $1 more effective than bring-to-court-warrants alone, and (2) the $33,000,000 number was pulled from the ether. No one knows where it came from. The actual number is about $5,000,000 - or less than 1/2 of 1% of all CS collected in New Jersey. And that's what is collected via warrants, which, in NJ (and in NJ alone), act to automatically suspend a driver's license without further hearing, inquiry, or notice. There remains NO proof that suspensions increased that number.

So, rather than $1700 per suspension, its actually an average of $268 per suspension. Not even close to overcoming the damage that suspensions do as far as causing job loss, lack of employment prospects, etc. See, I'm not yelling about a racist (70% of those suspended non-white), classist (74% of arrears owed by people earning less than $10,000 per year), brutal program applied in open defiance of Constitutional processes like "notice and an opportunity to be heard" and fundamental fairness like complying with N.J.S.A. 2A:17-56.44, which says a suspension will be effective 20 days after a suspension order is entered (instead, MVC sends a notice saying an obligor was suspended days before the notice issued - which has resulted in many people finding out they're suspended by being pulled over).

Draft of brief section is below for any really interested....





<x-tab>        </x-tab>Presumably aware of how serious a step it is to suspend a license, the legislature required that the coercive effect of license suspensions be justified and verified annually. Pursuant to N.J.S.A. 2A:1756.50 (Annual report), the AOC "shall submit an annual report to the Governor and the Legislature regarding the number and type of licenses suspended or revoked . . . and the total amount of child support collected due to 2A:1756.40 et seq."
<x-tab>        </x-tab>In 2006, 2007, and 2008, the AOC has submitted a "New Jersey Judiciary Report to the Legislature on the Suspension of Licenses Due to Child Support Arrears." (Exhibit H). Its representations to the legislature have been less than reliable.
<x-tab>        </x-tab>The report speaks in glowing terms as to the coercive effect of suspending driver's licenses (Exhibit E, page 1). The 2006 report states "The suspension of drivers' licenses as a coercive tool has been a successful, frequently employed method of collecting child support ... Clearly the implementation of this program has positively impacted families that rely upon receiving support."
<x-tab>        </x-tab>The report first lists out in detail the statutory criteria that the legislature painstakingly developed before a license should be suspended. It then notes in a single sentence that "the majority of licenses suspended are by operation of law." (Exhibit H at page 3). As set forth above, licenses suspensions by operation of law (upon the entry of a warrant) completely circumvent the statutory process and weighing of interests, occurring upon a simple default and "without any additional notice to the obligor." Ibid.
<x-tab>        </x-tab>The use of the word "majority" in the claim that "the majority of licenses suspended are by operation of law" is a drastic understatement. Pursuant to Open Public Records Act Request W95220 to the Division of Family Development (Exhibit E page 3), the Division initially claimed that "100% of the driver license suspensions were the result of the automatic process." Upon a request for confirmation of this somewhat surprising statement, the Division of Family Development corrected it and clarified that it is not true that 100% of suspensions are via the automatic process. In fact, "only" 20,381 of the 20,498 (99.429%) suspensions last year were imposed without a hearing. 108 (.0057%, one half of one percent) were suspended as the result of either a hearing or a combination of a hearing and the automatic process (Exhibit G, page 1).
<x-tab>        </x-tab>When 99.429% of the suspensions occur automatically and without a hearing, it would seem impossible to segregate what percentage of support collection is the result of license suspensions from what percentage is attributable to warrants alone.
<x-tab>        </x-tab>In response to a request to the Administrative Office of the Courts that it provide the data to support its conclusion that (contrary to what logic would seem to dictate) there is "clearly" an additional coercive effect in suspending driver's licenses over and above simply issuing a warrant requiring an obligor to appear (ExhibitE, page 1), the AOC replied that this data is maintained by the Division of Family Development (Exhibit E, page 2). Pursuant to Open Public Records Act Response W95220 to the Division of Family Development, the DFD admitted that there in fact are no documents to support this claim. (Exhibit E, page 3).
<x-tab>        </x-tab>The claim that the suspension of drivers' licenses as a coercive tool has "successful" and has "positively impacted families that rely upon receiving support" was also somewhat less than forthcoming.
<x-tab>        </x-tab>The reports submitted to the legislature in 2006 (-2010 XX?) contain impressive numbers related to support collections resulting from license suspensions. The report claims:

In the past state fiscal year ending June 30, 2006, 19,843 drivers' licenses were suspended and 22,626 were restored resulting in collections of $35,492,677 directly attributable to these actions. The drivers' license suspension/restoration project has made a significant impact in the child support arena as illustrated by its continued growth over the past few years. The state fiscal year 2006 figures exceeded the previous state fiscal year 2005 in which a total of 18,204 licenses were suspended and 20,035 were restored, resulting in $32,494,593 being collected for support.

<x-tab>        </x-tab>At an average of $33,000,000 (Thirty-Three million dollars) collected per year as the result of the suspension of an average of 19,000 licenses annually, each suspension would have brought in $1,737 per suspension. $33,000,000 accounts for just over 3% of all the child support collected in in New Jersey in 2010 (Exhibit XX, page 9).
<x-tab>        </x-tab>In discovery, plaintiffs pursued evidence of the claim that this amount of support was collected as the result of suspensions. The DFD responded by downwardly adjusting the claims as to how much support was collected as the result of suspensions by almost ninety percent:
<x-tab>        </x-tab>

	Year 2010	Year 2011	Year 2012	Year 2013	Year 2014
Driver's
Licenses
#Suspensions	18,668	21,037	20,483	22,024	20,498
Amount
Collected	$4,729,765.48	$6,108,163.74	$5,333,498.32	$6,087,718.50	$4,333,543.39

<x-tab>        </x-tab>The corrected figures show that, in fact, license suspensions have brought in an average of $5,300,000 (Five Million Three Hundred Thousand) per year or a mere $259 per suspension or roughly 15% of the amounts claimed by the AOC in its reports to the legislature - when it chose to comply with N.J.S.A. 2A:1756.50 at all. The revised figures also demonstrate that support-related warrants in fact account for less than one-half of one percent (.43%) of all collections. There is no justification for economic damage being done to over 20,000 obligors each year via the current suspension process.
<x-tab>        </x-tab>The conclusion of the "Report to the Legislature on the Suspension of Licenses Due to Child Support Arrears" that "The suspension of drivers' licenses as a coercive tool has been a successful, frequently employed method of collecting child support ... that has positively impacted families that rely upon receiving support" was less than accurate.
<x-tab>        </x-tab>In sum, the facts demonstrate that the current license suspension system is tremendously ineffective, denies obligors of constitutionally guaranteed due process and is counterproductive. The State has no cognizable interest in maintaining the current suspension program. This court must act to remedy it.

<x-tab>        </x-tab>

Year	Suspensions	Amount collected
2006	18,668	$4,729,765.48
2007	21,037	$6,108,163.74
2008	20,483	$5,333,498.32
2009	22,024	$6,087,718.50
2010	20,498	$4,333,543.39
2011	102,710	$26,592,689.43
TOTAL	20,542	$5,318,537.89
AVERAGE		$258.91

<x-sigsep>

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

</x-sigsep>

Original Message------

Car booting in New Jersey is permitted, but very infrequently used. There was something on it in the 5000+ pages of paperwork that went back and forth - it was tried and found to be inefficient.Aside from direct pay, the most successful methods are: (1) Wage garnishment, (2) Unemployment garnishment, (3) Tax intercepts (check out https://www.acf.hhs.gov/sites/default/files/programs/css/chapter5_0.pdf ).

But you since you raise the topic generally.... Discovery has produced a couple of bombshells. The biggest is that the AOC has been.... well, I said early on that I was going to try to be "nicer" about everything, not voice frustration - but this is a tough one. One of the provisions of the 1998 Child Support Improvement Act was a requirement that the AOC prepare an annual report to the legislature on the effectiveness of license suspensions. And, well, let's be nice and say that some rather large "mistakes" have been made to justify the jack-booted provisions of Directive #15-08 that permit the entry of a warrant when any arrears exist and "without notice." (Yes - the AOC grants itself the authority to issue a warrant upon the existence of any arrears - $1 for one day and they say they can do it).

All tad frustrating because there have been bills introduced almost every session to change and improve the license suspension program, but those that made it to a committee hearing died. A legislator's aide said to me early on that one of the reasons was that the AOC stats showed that license suspension accounted for 3% of collections - about $33,000,000 per year in New Jersey. Too large a number to turn one's back on when we're talking about a billion per year collected overall in New Jersey. Break it out per suspension and it's over $1,700 for each suspension.

Discouraging news. And, it turns out, it was propaganda of the first order (there I go again). After pushing and pushing on it, it turns out (1) there is NO evidence - not a single document - that says license suspension is $1 more effective than bring-to-court-warrants alone, and (2) the $33,000,000 number was pulled from the ether. No one knows where it came from. The actual number is about $5,000,000 - or less than 1/2 of 1% of all CS collected in New Jersey. And that's what is collected via warrants, which, in NJ (and in NJ alone), act to automatically suspend a driver's license without further hearing, inquiry, or notice. There remains NO proof that suspensions increased that number.

So, rather than $1700 per suspension, its actually an average of $268 per suspension. Not even close to overcoming the damage that suspensions do as far as causing job loss, lack of employment prospects, etc. See, I'm not yelling about a racist (70% of those suspended non-white), classist (74% of arrears owed by people earning less than $10,000 per year), brutal program applied in open defiance of Constitutional processes like "notice and an opportunity to be heard" and fundamental fairness like complying with N.J.S.A. 2A:17-56.44, which says a suspension will be effective 20 days after a suspension order is entered (instead, MVC sends a notice saying an obligor was suspended days before the notice issued - which has resulted in many people finding out they're suspended by being pulled over).

Draft of brief section is below for any really interested....





<x-tab>        </x-tab>Presumably aware of how serious a step it is to suspend a license, the legislature required that the coercive effect of license suspensions be justified and verified annually. Pursuant to N.J.S.A. 2A:1756.50 (Annual report), the AOC "shall submit an annual report to the Governor and the Legislature regarding the number and type of licenses suspended or revoked . . . and the total amount of child support collected due to 2A:1756.40 et seq."
<x-tab>        </x-tab>In 2006, 2007, and 2008, the AOC has submitted a "New Jersey Judiciary Report to the Legislature on the Suspension of Licenses Due to Child Support Arrears." (Exhibit H). Its representations to the legislature have been less than reliable.
<x-tab>        </x-tab>The report speaks in glowing terms as to the coercive effect of suspending driver's licenses (Exhibit E, page 1). The 2006 report states "The suspension of drivers' licenses as a coercive tool has been a successful, frequently employed method of collecting child support ... Clearly the implementation of this program has positively impacted families that rely upon receiving support."
<x-tab>        </x-tab>The report first lists out in detail the statutory criteria that the legislature painstakingly developed before a license should be suspended. It then notes in a single sentence that "the majority of licenses suspended are by operation of law." (Exhibit H at page 3). As set forth above, licenses suspensions by operation of law (upon the entry of a warrant) completely circumvent the statutory process and weighing of interests, occurring upon a simple default and "without any additional notice to the obligor." Ibid.
<x-tab>        </x-tab>The use of the word "majority" in the claim that "the majority of licenses suspended are by operation of law" is a drastic understatement. Pursuant to Open Public Records Act Request W95220 to the Division of Family Development (Exhibit E page 3), the Division initially claimed that "100% of the driver license suspensions were the result of the automatic process." Upon a request for confirmation of this somewhat surprising statement, the Division of Family Development corrected it and clarified that it is not true that 100% of suspensions are via the automatic process. In fact, "only" 20,381 of the 20,498 (99.429%) suspensions last year were imposed without a hearing. 108 (.0057%, one half of one percent) were suspended as the result of either a hearing or a combination of a hearing and the automatic process (Exhibit G, page 1).
<x-tab>        </x-tab>When 99.429% of the suspensions occur automatically and without a hearing, it would seem impossible to segregate what percentage of support collection is the result of license suspensions from what percentage is attributable to warrants alone.
<x-tab>        </x-tab>In response to a request to the Administrative Office of the Courts that it provide the data to support its conclusion that (contrary to what logic would seem to dictate) there is "clearly" an additional coercive effect in suspending driver's licenses over and above simply issuing a warrant requiring an obligor to appear (ExhibitE, page 1), the AOC replied that this data is maintained by the Division of Family Development (Exhibit E, page 2). Pursuant to Open Public Records Act Response W95220 to the Division of Family Development, the DFD admitted that there in fact are no documents to support this claim. (Exhibit E, page 3).
<x-tab>        </x-tab>The claim that the suspension of drivers' licenses as a coercive tool has "successful" and has "positively impacted families that rely upon receiving support" was also somewhat less than forthcoming.
<x-tab>        </x-tab>The reports submitted to the legislature in 2006 (-2010 XX?) contain impressive numbers related to support collections resulting from license suspensions. The report claims:

In the past state fiscal year ending June 30, 2006, 19,843 drivers' licenses were suspended and 22,626 were restored resulting in collections of $35,492,677 directly attributable to these actions. The drivers' license suspension/restoration project has made a significant impact in the child support arena as illustrated by its continued growth over the past few years. The state fiscal year 2006 figures exceeded the previous state fiscal year 2005 in which a total of 18,204 licenses were suspended and 20,035 were restored, resulting in $32,494,593 being collected for support.

<x-tab>        </x-tab>At an average of $33,000,000 (Thirty-Three million dollars) collected per year as the result of the suspension of an average of 19,000 licenses annually, each suspension would have brought in $1,737 per suspension. $33,000,000 accounts for just over 3% of all the child support collected in in New Jersey in 2010 (Exhibit XX, page 9).
<x-tab>        </x-tab>In discovery, plaintiffs pursued evidence of the claim that this amount of support was collected as the result of suspensions. The DFD responded by downwardly adjusting the claims as to how much support was collected as the result of suspensions by almost ninety percent:
<x-tab>        </x-tab>

	Year 2010	Year 2011	Year 2012	Year 2013	Year 2014
Driver's
Licenses
#Suspensions	18,668	21,037	20,483	22,024	20,498
Amount
Collected	$4,729,765.48	$6,108,163.74	$5,333,498.32	$6,087,718.50	$4,333,543.39

<x-tab>        </x-tab>The corrected figures show that, in fact, license suspensions have brought in an average of $5,300,000 (Five Million Three Hundred Thousand) per year or a mere $259 per suspension or roughly 15% of the amounts claimed by the AOC in its reports to the legislature - when it chose to comply with N.J.S.A. 2A:1756.50 at all. The revised figures also demonstrate that support-related warrants in fact account for less than one-half of one percent (.43%) of all collections. There is no justification for economic damage being done to over 20,000 obligors each year via the current suspension process.
<x-tab>        </x-tab>The conclusion of the "Report to the Legislature on the Suspension of Licenses Due to Child Support Arrears" that "The suspension of drivers' licenses as a coercive tool has been a successful, frequently employed method of collecting child support ... that has positively impacted families that rely upon receiving support" was less than accurate.
<x-tab>        </x-tab>In sum, the facts demonstrate that the current license suspension system is tremendously ineffective, denies obligors of constitutionally guaranteed due process and is counterproductive. The State has no cognizable interest in maintaining the current suspension program. This court must act to remedy it.

<x-tab>        </x-tab>

Year	Suspensions	Amount collected
2006	18,668	$4,729,765.48
2007	21,037	$6,108,163.74
2008	20,483	$5,333,498.32
2009	22,024	$6,087,718.50
2010	20,498	$4,333,543.39
2011	102,710	$26,592,689.43
TOTAL	20,542	$5,318,537.89
AVERAGE		$258.91

<x-sigsep>

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

</x-sigsep>

Original Message------

One point of immediate interest to anyone who is assisting someone in getting a license reinstated (it's not usually us as most of these folks can't afford counsel) -- I urged (as one small point) that more judges should vacate orders for a license suspension rather than issuing a new order reinstating the license.  The effect of this is a lot to someone's who is indigent: It means the $100 restoration fee is, in effect, waived (since the original order is vacated rather than a new order being entered).  One of plaintiffs (Andreana Kavadas) has a $44 per week obligation and is often faced with the issue of either getting her license back or paying two weeks worth of child support.


At page 13 of its opposition ( http://www.dpdlaw.com/kav_Mart_OppositionBrief.pdf ), the State isn't fighting this.  In fact, they reference the procedure:

If a license suspension is lifted, an electronic request allowing for restoration is sent to the MVC and the license is restored to the obligor in return for payment of a $100 restoration fee. The judge cannot waive the restoration fee. N.J.S.A. 2A:17-56.45. In some cases, a judge will vacate the license suspension order and no restoration fee is required. R. 4:50-1. A judge may vacate a license suspension order when he or she finds: (1) that the judgment or order has been satisfied, released or discharged; or (2) any other reason justifying relief from the operation of the judgment or order. R. 4:50-19(e)-(f).    (Emphasis added).

Please urge anyone in this situation to suggest this option to a judge - it may help get someone back to work.


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