This Tuesday was the three year anniversary of the filing of Kavadas v. Martinez / www.dpdlaw.com/Kavadas . Next month will be the three year anniversary of the court denying preliminary / emergent relief, but agreeing the issues are "important" and the case would be "expedited." Three years is not "expedited." It's been over 600 days (20 months / 1.7 years) since oral argument on the motion and cross-motion for summary judgment. During this time, 54,000 human beings have had their licenses taken with no Mathews-compliant hearing. At oral argument, the court pretty much acknowledged that this (along with the MVC ignoring the statute as to the effective date of suspensions) was wrong (transcript and audio are online). During this time, over 1,200 people have had their licenses erroneously suspended - wrong person, wrong order, wrong license number, support having been paid but not credited by probation, or some other error within the system. None of them were notified before the suspension was imposed (see above MVC violation of the law requiring notice before a suspension is effective), resulting in cars being towed, summonses issued, people wrongly arrested, etc.
I'm considering filing a notice of appeal along with a motion asking the Appellate Division to consider the trial court's failure to decide the motion to be a "de facto denial" permitting the Appellate Division to take it. There's decent law supporting this concept from the Third Circuit (for any interested, it's below). Both sides submitted the issue as one for summary judgment. Under the case law, "de facto denial review" is appropriate when there are no facts questions, a lot of people are being harmed by the status quo, and the delay can not be considered justified.
In the alternative, I'm considering asking the Appellate Division to permit a review as within time of the decision denying emergent relief from 2015 (the same order wherein the trial court said it would "expedite" the case - http://www.dpdlaw.com/Kavadas_Order1.pdf at paragraph 4).
If the Appellate Division won't take it, I could then file for review of that decision to the Supreme Court. Chief Justice Rabner has recently again affirmed that he cares about issues effecting justice, issuing a sua sponte report condemning similar unconstitutional practices ( https://www.app.com/story/news/investigations/watchdog/investigations/2018/04/17/nj-chief-justice-acknowledges-money-making-municipal-court-practices/525400002/ ).
I've held off, at first understanding the issues aren't simple, and then out of a concern that I'd aggravate the trial judge by doing anything about it, but we're now looking at delays running into the years and, frankly, I'm sick of getting the calls from victims, including one last week wherein a guy committed suicide. He was fired from his job as a result of his license having been suspended for child support. His firing rendered him once again unable to pay (and he never had a hearing wherein he could demonstrate how his firing would help no one). His depression cycled downward, and parents have lost a child and a child has lost her father. Can his death be directly related to the failure to decide this? While it's obviously complex, his family thinks so. As do I. And I sincerely doubt he's the first death - there's certainly been a lot of lives destroyed.
If anyone feels like sharing any thoughts on whether this would prevail and/or the plusses and minuses of proceeding this way, I'd appreciate hearing from you (on list or off).
Thanks.
<x-sigsep></x-sigsep> David Perry Davis, Esq.
----------------------------------------------------
www.FamilyLawNJ.pro
----------------------------------------------------
* * Please note our new address * *
57 Hamilton Avenue -- Suite 301
Hopewell, NJ 08525
Voice: 609-466-1222
Fax: 609-466-1223
------------------------------------------------------------------------------
January 6, 2018
Hon. Mary C. Jacobson, AJSC
Superior Court of New Jersey
Criminal Courthouse
400 South Warren Street
Trenton, NJ 08650-0068
Via fax (609) 571-4463 and PDF
Re: <x-tab> </x-tab>Kavadas, et al v. Martinez, et el
<x-tab> </x-tab>Docket No. MER-L-1004-15
Dear Judge Jacobson:
It has now been 500 days since oral argument in the above matter was held on August 23, 2016.
I write to respectfully inform the Court that, if counsel cannot be provided with a date certain by which a decision will be issued, this office will file an appeal, asking the Appellate Division to deem this court's failure to issue a decision to be a de facto denial subject to review.
There is significant case law that would support such an application. In June Med. Servs. LLC v. Kliebert, 158 F.Supp. 3d 473, 528 n. 64 (M.D.La. 2016), the Court, citing Khorrami v. Rolince, 539 F.3d 782, 786 (7th Cir. 2008) held a judicial delay can sometimes be "so long . . . that the delay becomes a "de facto denial." See also, Morgan v. Gandalf, Ltd., 165 Fed. Appx. 425, 431 (6th Cir. 2006) (district court's inaction constituted a "de facto denial"); Omnipoint Commc'ns Enters., L.P. v. Zoning Hearing Bd. of Easttown Twp., 331 F.3d 386, 393 (3d Cir. 2003); Alexander v. Local 496, Laborers' Int'l Union, 177 F.3d 394, 408-09 (6th Cir. 1999); Chevron USA, Inc. v. Sch. Bd. of Vermilion Parish, 294 F.3d 716, 720 (5th Cir. 2002).
When an appellate court is asked to deem judicial inaction as a de facto denial subject to review it should consider three factors: (1) Whether the delay is unjustifiable, (2) whether irreparable injury is demonstrated, and (3) whether questions of fact more appropriately determined by a trial court are present. IDS Life Ins. Co. v. SunAmerica, Inc., 103 F.3d 524, 526-527 (7th Cir.1996).
Here, the Court has been presented with a motion and cross motion for summary judgment. Thus, neither party has alleged the existence of material fact questions. I do not believe an in-depth review of the harms being caused via the Constitutional and statutory violations is necessary. Finally, a delay of 500+ days is not reasonable.
There have been 24,500 automatic suspensions just since oral argument, 550 of which were erroneous (wrong person, wrong order, arrears actually paid, etc). As previously indicated, I appreciate the Court's workload and the time this matter requires. However, if the Court cannot provide counsel with a date by which a decision will be rendered, plaintiffs are left with no recourse but to seek review of the Court's de facto denial.
Respectfully,
David Perry Davis, Esq.
Cc: DAG Jacqueline Augustine, Esq (Via PDF and fax)
<x-tab> </x-tab>Andreana Kavadas, et al (Via PDF)
Original Message------
For those following it - statement regarding the story on News 12 broadcasted February 13, 2018 ( http://newjersey.news12.com/story/37499502/kiyc-lawsuit-filed-to-contest-states-child-support-license-suspension-laws )
As the attorney who brought this suit, I'm mightily disappointed in this coverage. It ignores the primary issue - that the automatic license suspensions are making it more difficult to collect child support and driving down New Jersey's collection rate. To frame this issue as an "aggressive crackdown on nonpayment of child support" is, to say the least, inaccurate. It's a false premise, implying that the automatic suspensions coerce payment, when all the evidence shows that they don't - they make payment impossible. Depriving people of the ability to pay support by yanking licenses with no warning and no hearing (causing people to lose jobs and be unable to obtain employment) is not an "aggressive crackdown", it's counter-productive in that it makes it impossible for kids to receive the support they're due.
That's not just my opinion, it's the facts. All the documents are online at www.dpdlaw.com/Kavadas . As the attachments to the motion for summary judgment show (Exhibit Y), New Jersey is the third wealthiest state and has the fourth lowest unemployment rate. Yet our child support collection ranking is an abysmal #16. There's a problem here. Another exhibit was the deposition testimony of retired Child Support Hearing Officer Norman Epting, who presided over 40,000 child support hearings during his 20 years of service. He specifically and directly discussed it and said the system was racist, discriminatory against the poor, and, most upsetting to him, it is killing New Jersey's collection rate as the automatic suspensions make it impossible for a lot of parents to dig their way out of arrears ( Exhibit S). How News 12 took facts and testimony like this (if, as I doubt, they spent any time reading the case file) and describe the system HO Epting was criticizing as an "aggressive crackdown on nonpayment of child support" is a mystery.
The choice to interview two attorneys from a white-shoe, boutique North Jersey law firm was a poor one. Attorneys Laurie Newmark and John Clancy, are well-respected Family Law attorneys who handle complex divorces and appeals. However, they know essentially nothing about poverty and those being crushed by an oppressive system nor the children being hurt by it, or they never would have made the statements they did. With all due respect, their underlying assumption - that these suspensions help collections - are completely ignorant of the realities of the system. This is a poverty issue. 75% of those in arrears earn $10,000 or less per year. Less than 2% earn over $50,000 per year. It would have made a lot more sense for News 12 to interview someone from Legal Services or, perhaps, the retired hearing officer who saw the day-to-day effect of this stupid and counter-productive policy, or either of the retired Superior Court judges who served in the Family Part and vocally support the suit. Their opinions, to say the least, would not mirror Newmark and Clancy's.
There were also factual errors in the reporting. The claim that other states don't provide a hearing, and, specifically, that Ohio also suspends license automatically is just wrong. The Ohio CS website ( https://support.franklincountyohio.gov/Support-Order-Enforcement/License-Suspension ) explains how a notice is mailed and hearing held where, if there's legitimate unemployment or disability, the license will not be suspended. New Jersey affords no such protection to parents and the kids end up not receiving support a parent can't earn. The National Conference of State Legislatures lists out the states and the process they grant before a suspension is imposed ( http://www.ncsl.org/research/human-services/license-restrictions-for-failure-to-pay-child-support.aspx ).
According to the National Conference of State Legislatures, New Jersey and New Jersey alone suspends licenses automatically without conducting a "Matthews compliant hearing." (E.g., a hearing where the harm caused by a license suspension is weighed against whether it is legitimately coercive). Other states that have move to "smart enforcement" policies that de-emphasize incarceration and license suspension have seen their collection rates skyrocket.
The still-undecided motion for summary judgment was not, as reported, filed in August 2016 - it was filed in December of 2015 (over two years ago). After the State sought and was granted multiple extensions, its opposition was filed in July 2016. The motion argued in August of 2016. The case itself was filed almost three years ago.
New Jersey's policy is stupid, counter-productive, unconstitutional, and brutal to all those affected by it. When the State acts this poorly, we count on the courts to step it and remedy it, and the press to shine light on the injustice. In this case, the courts have failed in not rendering a decision and the press, via this News 12 reporting, utterly failed in its duty to shine an accurate light on what is going on. If any decision-maker was affected by the story, its entire premise will end up hurting people - parents in poverty and, most important, the kids who need support.
<x-sigsep></x-sigsep> David Perry Davis, Esq.
----------------------------------------------------
www.FamilyLawNJ.pro
----------------------------------------------------
* * Please note our new address * *
57 Hamilton Avenue -- Suite 301
Hopewell, NJ 08525
Voice: 609-466-1222
Fax: 609-466-1223