The Law Office ofDavid Perry Davis112 West Franklin AvePennington NJ 08534(609) 737-2222(609) 737-3222 (fax)Attorney ID: 047451996Attorney for plaintiff class Andreana Kavadas, Alisha Grabowski, LaQuay Dansby, Paulo Arede, individually and on behalf of all persons similarly situated,

Plaintiffs

vs.

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

John Jay Hoffman, Esq., in his official capacity as Acting Attorney General of the State of New Jersey, and The State of New Jersey,

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

Defendants

SUPERIOR COURT OF NEW JERSEYLAW DIVISIONMERCER COUNTYDOCKET NO. MER-L-1004-15

Civil Action

MEMORANDUM OF LAW IN SUPPORT OF

PLAINTIFFS' APPLICATION

TABLE OF CONTENTSTABLE OF CONTENTS iiTABLE OF AUTHORITIES viTABLE OF CONTENTS TO EXHIBITS xiiPRELIMINARY STATEMENT 1STATEMENT OF FACTS

As to plaintiff Andreana Kavadas 3As to plaintiff Alisha Grabowski 8As to plaintiff LaQuay Dansby 10As to plaintiff Paulo Arede 13

BACKGROUND1. Overview: Poverty and support debtors 152. Legislative History of N.J.S.A. 2A:17-56.7a et seq 193. The constitutional license suspension process 244. The unconstitutional license suspension process 26

A. Automatic license suspension upon entry of a "bring to court" warrant under N.J.S.A. 2A:17-56.41 27

B. Insufficient notice of suspension upon failure to appear 28

C. Lack of a contemporaneous finding of an ability to comply 29

D. The effectiveness of the use of license suspensions to coerce compliance 30

LEGAL ARGUMENT

Point I: THE COURT SHOULD GRANT SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS 38

A. Plaintiffs have demonstrated their entitlement to summary judgment under the controlling legal standard 38

B. Plaintiffs have established their entitlement to declaratory and injunctive relief as set forth in the complaint 38

Remedies

1. The court should strike the provision of N.J.S.A. 2A:17-56.41(a) mandating the automatic suspension of licenses 40

2. In the alternative, the court should order defendants to proceed via the issuance of writs of capias ad satisfaciendum rather than arrest warrants 43

3. The court should order injunctive relief to remedy the other defects in the current license suspension process 45

Point II: THE LICENSE SUSPENSION PROCEDURES OF THE NEW JERSEY CHILD SUPPORT IMPROVEMENT ACT ARE UNCONSTITUTIONAL 49

A. The automatic license suspension procedures violate procedural due process 49

1. Plaintiffs have a protectable interest in their driver's licenses 50

2. The risk of erroneous deprivation under existing procedures is unconstitutionally high 51

3. There would be no additional burden on the government if adequate due process were afforded obligors 55

B. Notifying obligors of their right to file a modification motion does not satisfy defendant's burden to provide a Mathews-compliant hearing57

C. Procedural Due Process requires that obligors must be notified of a potential suspension via at least certified mail 61

D. Bench warrant status orders must be entered only after a finding of an ability to pay at the time of entry and must contain an expiration date 63

E. The automatic license suspension procedures violate substantive due process 65

F. The AOC exceeded its constitutional authority via the provision of Directive #15-08 permitting the issuance of a warrant "without further notice" when the result of a warrant is the suspension of an obligor's license 70

G. The provisions of N.J.S.A. 2A:17-56.43 requiring a set percentage of arrears be paid to avoid suspension and prohibiting a repayment plan from extending beyond the child's 18th birthday are irrational and violative of plaintiffs' substantive due process and equal protection rights as well as an invalid intrusion by the legislature into the judicial realm 74

1. The challenged provisions of N.J.S.A. 2A:17-56.43 are irrational and violative of plaintiffs' substantive due process and equal protection rights 75

2. The challenged provisions of N.J.S.A. 2A:17-56.43 constitute an invalid intrusion by the legislature into the judicial realm 76

Point III: THE SUSPENSION OF LICENSES EFFECTIVE AS OF THE DATE OF THE ISSUANCE OF A "BRING TO COURT" WARRANT VIOLATES PLAINTIFFS' STATUTORY RIGHTS UNDER N.J.S.A. 2A:17-56.44 78

Point IV. THE CURRENT LICENSE SUSPENSION PROCEDURES VIOLATE PLAINTIFFS' RIGHT TO FUNDAMENTAL FAIRNESS VIA THE FAILURE TO APPOINT COUNSEL FOR INDIGENT LITIGANTS FACING THIS CONSEQUENCE OF MAGNITUDE 84

Point V. THIS MATTER IS COGNIZABLE PURSUANT TO 42 U.S.C. § 1983 AND THE NEW JERSEY CIVIL RIGHTS ACT 87

A. Plaintiffs have established Constitutional violations entitling them to relief pursuant to the New

Jersey Civil Rights Act and 42 U.S.C. §1983 87

B. Plaintiffs have demonstrated statutory violations actionable under the NJCRA 88

C. Defendants are the proper parties and are not immune from injunctive relief 89

Point VI: THE COURT'S JULY 22, 2015 ORDER SHOULD BE AMENDED INSOFAR AS IT DENIED THE APPLICATION TO CERTIFY A PLAINTIFF CLASS CONSISTING OF CURRENTLY SUSPENDED OBLIGORS92

A. The court did not consider defendants' history of failing to adhere to test case decisions. 92

B. The court should certify a limited plaintiff class consisting of obligors Currently subject to unconstitutional suspension of their drivers' licenses 96

C. The court has the authority to revisit an order as to class certification at any time prior to the entry of judgment

98

D. The court's holding that class certification would unduly complicate the resolution of the case rested on an erroneous reading of Rule 4:32-1(b)

98

E. Plaintiffs have established the four required elements of 4:32-1(a) 100

1. Numerosity 100

2. Commonality 101

3. Typicality 104

4. Adequacy 105

5. R. 4:32-1(b) 106

Conclusion 107

TABLE OF AUTHORITIESFederal Case lawAnderson v. Creighton, 483 U.S. 635, 640 (1987) 38

Anthony v. Council, 316 F.3d 412, 421 (3d Cir.2003) 75

Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965))

49

Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971)). 49Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976) 106Blessing v. Freestone, 520 U.S. 329, 340-341 (1997) 89

Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397, 407 (1976)

64

Dixon v. Love, 431 U.S. 105, 112, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977)

49

Dusenbery v. United States, 534 U.S. 161, 168 61

Goldberg v. Kelly, 397 U.S. 254 (1970) 58

Hill v. Borough of Kutztown, 455 F.3d 225, 244 (3d Cir.2006)

92

Kansas v. United States, 214 F.3d 1196, 1197 (10th Cir.), cert. denied, 531 U.S. 1035, 121 S.Ct. 623, 148 L.Ed.2d 533 (2000)

21

Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976):

49

Minn. v. Clover Leaf Creamery Co., 449 U.S. 456, 461-66, 101 S.Ct. 715, 722-25, 66 L.Ed.2d 659, 667-69 (1981).

64

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950))

61

Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 732-33, 100 S.Ct. 1967, 1974-75, 64 L.Ed.2d 641 (1980)

90

W.P. v. Poritz, 931 F.Supp. 1187 (D.N.J. 1996) 101

Weiss v. York Hospital, 745 F.2d 786, 808 (3d Cir.), cert denied 105 S.Ct. 1777, 470 U.S. 1060, 84 L.Ed.2d 836 (1984).

101

Wood v. Strickland, 420 U.S. 308, 314 n. 6, 95 S.Ct. 992, 997 n. 6, 43 L.Ed.2d 214, 221 n. 6 (1975) 92

Federal Statutes

28 U.S.C. § 2241 90

42 U.S.C. § 666(a)(16) 21

42 U.S.C. §653 21

42 U.S.C. §1983 88

New Jersey Constitutional ProvisionsNew Jersey Constitution, ART. I, § 7 , 43

NEW JERSEY CONSTITUTION , ARTICLE VI, § 2, ¶ 3 78

New Jersey StatutesN.J.S.A. 2A:17-56.41 41

N.J.S.A. 2A:17-56.43 41

N.J.S.A. 2A:17-78 42

N.J.S.A. 2A:18-27 63

N.J.S.A. 2A:17-56.9a 63

N.J.S.A. 2A:17-56.41(a) 39

N.J.S.A. 2A:17-56.43 78

New Jersey Court RulesRule 1:10-3 43

Rule 4:46-2(c) 37

Rule 4:32-1(b)(3) 103

Rule 4:59-1 63

Rule 5:7-5 63

Rule 4:59-1(a) 42

Rule 4:46-1 37

Rule 5:25-3 63

New Jersey Case LawBarblock v. Barblock, 383 N.J.Super. 114 (App.Div. 2006)

57

Bechler v. Parsekian, 36 N.J. 242, 257 (1961) 90

Bechler v. Parsekian, 36 N.J. 242 (1961) 82

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)

37

Cornblatt v. Barow, 153 N.J. 218, 242 (1998) 82

Delgozzo v. Kenny, 266 N.J.Super. 169, 181 (App.Div.1993)

105, 106

Doe v. Poritz, 142 N.J. 1, 31 (1995) 84

Filippone v. Lee, 304 N.J.Super. 301, 308 (App. Div. 1997).

75

Franklin Estates v. Township of Edison, 142 N.J.Super. 179, 184 (App. Div.1976) aff'd, 73 N.J. 462 (1977).

41

Garden State Equality v. Dow, 216 N.J. 314 (2013) 90

Gormley v. Wood-Ed, 218 N.J. 72 (2014) 90, 92

Greenberg v. Kimmelman, 99 N.J. 552, 564 (1985) 76

Gross v. Johnson & Johnson - Merck Consumer Pharms. Co., 303 N.J.Super. 336, 342 (Law Div.1997)

104

Harrington v. Harrington, 281 N.J.Super. 39, 48 (App.Div.), certif. denied, 142 N.J. 455 (1995)

57

Hubbard v. Reed, 168 N.J. 387, 392 (2001) 40

Iliadis v. Wal - Mart Stores, Inc. , 191 N.J. 88 (2007) 106

In re S.L. , 94 N.J. 128, 142 (1983) 84

In re P.L. 2001, Chapter 362., 186 N.J. 368, 380 (2006)

71

In the Matter of the Civil Commitment of D.L., 351 N.J.   Super. 77 (App.Div. 2002)

86

In re Cadillac V8 - 6 - 4 Class Action , 93 N.J. 412 (1983)

104, 106

K.P. v. Albanese, 204 N.J.Super. 166 (App.Div.), cert denied, 102 N.J. 355 (1985)

102

Lepis v. Lepis, 83 N.J. 139 (1980) 57, 63

Marshall v. Matthei, 327 N.J.Super. 512 (App.Div. 2000)

43

Modan v. Modan, 327 N.J.Super. 44, 48 (App. Div. 2000),

61

Morgan v. Morgan, 1 Stew. 23, 28 Eq. 24 (1877) 43

New Jersey Builders, Owners, & Managers Ass'n. v. Blair, 60 N.J. 330, 338 (1972)

40

Newburgh v. Arrigo, 88 N.J. 529 (1982) 63, 75

No Illegal Points, Citizens For Drivers' Rights, Inc. v. Florio, 264 N.J.Super. 318, 329

41

(App.Div.1993), certif. denied 134 N.J. 479 (1993)O'Connor v. Altus, 67 N.J. 106, 126-27 (1975) 61

Palombi v. Palombi, 414 N.J. Super. 274 (App.Div. 2010)

58

Parsekian v. Cress, 75 N.J. Super. 405 (App. Div. 1962)

82

Pasqua v. Council, 186 N.J. 127, 141 (2006) 43, 58, 90

Perlmutter v. DeRowe, 58 N.J. 5 (1971) 42, 76

Pfeiffer v. Ilson, 318 N.J.Super. 13 (App.Div.1999) 57

Randolph Town Ctr., L.P. v. Cnty. of Morris, 186 N.J. 78, 80 (2006)

39

Right to Choose v. Byrne, 91 N.J. 287, 309 n.7 (1982)

64

Riley v. New Rapids Carpet Ctr., 61 N.J. 218, 223 (1972)

106

Rodriguez v. Rosenblatt, 58 N.J. 281 (1971) 84

Saldana v. City of Camden, 252 N.J. Super. 188 (1991)

103

Schochet v. Schochet, 435 N.J.Super. 542 (App.Div. 2014)

58

Sears, Roebuck & Co. v. Camp, 124 N.J. Eq. 403 (E. & A. 1938)

38

State v. Maurer, 438 N.J.Super. 402 (App.Div. 2014) 71

State v. Moran, 202 N.J. 311 (2010) 50, 85

State v. Wenof, 102 N.J.Super (Law Div. 1968) 82

State v. Jorn, 340 N.J.Super. 192, 196 (App.Div.2001)

41

State Dep't of Law & Pub. Safety v. Gonzalez, 142 N.J. 618, 627, (1995)

40

State v. Chippero, 201 N.J. 14, 28 (2009) 43

Tumpson v. Farina, 218 N.J. 450, 464 (2014) 38, 88, 90

Turner v. First Union Nat. Bank, 162 N.J. 75, 84, (1999)

40, 82

Twp. of Montville v. Block 69 Lot 10, 74 N.J. 1, 8 (1977)

62

U.S.A. Chamber of Commerce v. N.J., 89 N.J. 131, 157-58 (1982)

64

Union County Bd. of Chosen Freeholders v. Union County Park Comm'n, 41 N.J. 333, 337 (1964)

38, 75

Watt v. Mayor of Franklin, 21 N.J. 274, 278 (1956)) 82

Winberry v. Salisbury, 5 N.J. 240, 245-46, cert. 71, 78

denied, 340 U.S. 877 (1950)Young v. Schering Corp., 141 N.J. 16, 25 (1995) 40

Foreign State StatutesConnecticut General Statute §46b-231(m)(7)) (Connecticut)

43

General Law c. 215, §34A, c. 231, 6C (Massachusetts) 43

VA§19.2-123,-152.4:1,303.3 (Virginia). 43

§9-5-7, Ch. 784, § 1 (Rhode Island) 43

Foreign State Case LawBrown v. State, 109 Ala. 70, 20 So. 103 (1895)) 81

People v. Wood, 71 N.Y. 376 (1877) 81

People v. Smith, 926 P.2d 186 (Colo.App. 1996) 81

Shawnee County v. Carter, 2 Kan. 130 (1863) 81

State v. Beans, 965 P.2d 725 (Alaska 1998) 67

Unpublished Case LawDowe v. Chisea, 94

Fowler 96

Scholarly Journals / Law Review Articles / Other SourcesRonald K. Henry, Esq., CHILD SUPPORT AT A CROSSROADS: WHEN THE REAL WORLD INTRUDES UPON ACADEMICS AND ADVOCATES, Family Law Quarterly, Spring, (1999) (available at http://guidelineeconomics .com/files/ANCPR_FamLawQuart.htm (visited April 24, 2015)) 15Federal Office of Child Support Enforcement: preliminary data from the 2000 Census. "Child Support and Alimony: 1989 Series" P 23-60, No. 173. 20Kirsten D. Levingston and Vicki Turetsky, DEBTORS' PRISON PRISONERS' ACCUMULATION OF DEBT AS A BARRIER TO REENTRY, 41 Clearinghouse Rev. J. Poverty L. & Pol'y 187, 191 (2007) 15California Department of Child Support Services, EXAMINING CHILD SUPPORT ARREARS IN CALIFORNIA: THE COLLECTIBILITY STUDY (available at: www.cafcusa.org/ docs/DCSS_2003_ collectability_study.pdf at page 83 (visited March 30, 2015)) 18Mich. Sup. Ct., TASK FORCE REPORT: THE UNDERGROUND ECONOMY (2010) (available at http://courts.mi.gov/Administration/ SCAO/ Resources /Documents/Publications/Reports/UETF-2010.pdf (visited April 14, 2015)) 17

Edward J. Bloustein School of Planning and Public Policy, NEW JERSEY MOTOR VEHICLES AFFORDABILITY AND FAIRNESS TASK FORCE FINAL REPORT, 2006 (available at: http://www.state.nj.us/ MVC/pdf/About/AFTF_final_02.pdf) (visited April 11, 2015)) 30Philip Steven Fuoco, Robert F. Williams, Class Actions in New Jersey State Courts, 24 Rutgers L.J. 737, 752 (1993) 104House Ways and Means Committee Statement, CHILD SUPPORT ENFORCEMENT AND DRIVER'S LICENSE SUSPENSION POLICIES CRS R41762, April 11, 2011 (available at http://greenbook.waysandmeans.house.gov/sites/ greenbook.waysandmeans.house.gov/files/2012/documents/R41762_gb.pdf (visited April 4, 2015)) 22, 41Carly Q. Romalino, NEW JERSEY HOMELESS COUNT RISES, The Courier-Post June 14, 2014, (available at http://www.courierpostonline.com/ story/news/local/south-jersey/2014/06/09/new-jersey-homeless-count-rises/10264531/ (visited April 2, 2015)) 36NATIONAL CONFERENCE OF STATE LEGISLATURES, (available at http://www. ncsl.org/research/human-services/license-restrictions-for-failure-to-pay-child-support.aspx (visited March 31, 2015)) 69Galloway, Russell, BASIC SUBSTANTIVE DUE PROCESS ANALYSIS, 26 U.S.F.L.Rev. 625 (1992) 104Statement of Alisha Griffin, Assistant Director, Office of Child Support and Paternity Programs, New Jersey Division of Family Development, HEARING BEFORE THE SUBCOMMITTEE ON HUMAN RESOURCES OF THE COMMITTEE ON WAYS AND MEANS HOUSE OF REPRESENTATIVES, 106 Congress, September 23, 1999 (available at http://www.gpo.gov/fdsys/pkg/ CHRG-106hhrg64324/html/CHRG-106hhrg64324.htm) visited 3/2/2015)

20U.S. Dep't of Health & Human Servs., Admin. for Children and Families, Office of Child Support Enforcement, UNDERSTANDING CHILD SUPPORT DEBT: A GUIDE TO EXPLORING CHILD SUPPORT DEBT IN YOUR STATE 4-7 (2004), (available at http://www.acf.hhs.gov/sites/default/ files/ocse/dcl_04_28a.pdf (visited 10/22/2014))

15U.S. Dep't of Health & Human Servs., Admin. for Children and Families, Office of Child Support Enforcement, ALTERNATIVES TO INCARCERATION IM-12-01 (2012) (available at http://www.acf. hhs.gov/programs/css/ resource/alternatives-to-incarceration (visited April 24, 2015)) 15, 18

Administrative DirectivesAOC Directive #15-08, Use of Warrants and Incarceration in the Enforcement of Child Support Orders Exhibit A pages 1-29AOC Directive #02-14, Enforcement of Child Support (1) Revised "Order for Relief to Litigant - Enforcement of Litigants Rights" and (2) Hearing to Determine Ability to Comply with Current Child Support Obligation (modifies dir. #15-08)

Exhibit A pages 30-33AOC Directive #02-14 supplement, Enforcement of Child Support Revised Order for Relief to Litigants Enforcement of Litigants Rights (CN 11213) (Supplement to Dir. #02-14)

Exhibit A pages 34-38AOC Child Support Hearing Officers Enforcement Operations Manual Exhibit B

Table of Contents to Appendix / Exhibits

VOLUME IExhibit Document

A AOC Directive #15-08 1-29Directive #02-14 30-33Supplement to Directive #02-14 34-38

B Selected sections from New Jersey Child Support Hearing Officer Program Operations Manual (entire manual is 314 pages)

C New Jersey Motor Vehicles Affordability and Fairness Task Force Final Report

D Articles:The New York Times / skip CS go jail 1-5 Driver's License Suspensions Create Cycle of Debt 6-10 Inside the world of 'deadbeat dads' 11-15

E Request to the AOC as to data to support conclusion that there is an additional coercive effect in suspending driver's licenses over and above arrest warrant issuance and AOC response 1-2

OPRA request to the Division of Family Development and response ("no documents") 3

F Response from MVC to an Open Public Records Act request C93813Number of suspensions 1,3Explanation of data / erroneous suspensions 2

G Document demonstrating that last year, the DFD transmitted orders for the suspension of 20,498 driver's licenses suspended via the automatic process

1

Open Public Records Act request to the Division of Family Development, as to percent of driver's suspended automatically and percent of drivers

suspended after hearing2

H New Jersey Judiciary Report to the Legislature on the Suspension of Licenses Due to Child Support ArrearsFY 2006 1-3FY 2007 / 2008 4-6FY 2014 7-9

I Interoffice communication dated May 4, 2015 containing actual numbers as to collections resulting from warrants and automatic suspensions (DFD Bates Stamped DFD213)

J Andreana KavadasChart of suspensions, notices, warrants 1-6Certification 7-9Attachments: Reduction motion 10-13Attachments: Food Stamps / WIC / Medical 14-19Social Security Earnings Statement 20-23Release amount ($150) receipt 24DFD Summary of actions 25-27Sample USSO Notices to Obligors 28-29Orders 30-83Came Comments / NJKIDS Screen Shot 84-85Post-dated suspension notices from MVC 86-99Year End CS Statements 100-105Abstract 106-111Answers to Interrogatories 112-129

K Alisha Grabowski affidavit and attachmentsCertification 1-2Warning Notices / ELR motions 3-15All Orders 16-38End of Year Payment Statements 39-44Answers to Interrogatories 45-57

L LaQuay DansbyChart as to warning notices and suspensions 1-5Certification 6-8Attachments (Food Stamps eligibility) 9DFD Chart: notices, warrants and orders 10-11All Orders 12-89End of Year Statements 90-93Abstract 94-104Answers to Interrogatories 105-121

M Paulo AredeChart 1-4Certification 5-8Attachments: SSI Award Letter 9-23Attachments: Prescriptions 24-25DFD Chart: orders 26-27Sample USSO Notices to Obligors 28-29Orders 30-93MVC Post-dated suspensions notice 94-96End of Year Payment Statements 97-101Abstract 102-106Answers to Interrogatories 107-125

VOLUME IIExhibit Document

N Chart as to racial disparity in suspensionsSummary of racial breakdown on suspensions 1

Race as to each year suspensions 2-7US Census on race in New Jersey 8-9

O Notice of Motion Proposed License Suspension, with certification, form to return for hearing

P OPRA response from DFD / 80% of those who appear are placed on warrant statusNumber of enforcement proceedings (98,548) 1Number of BW status (78.697) 2Percent of BW for FTA 2

Q Trial court and appellate emergent application decision in Dowe v. ChiseaTrial court order 1-2Order on emergent motion 3-5

R Sample / form notices from AOC/DFD

S Deposition of Retired Hearing Officer Norman EptingAttachments 141-155

T Deposition of Andreana Kavadas 1-134

U Deposition of Alisha GrabowskiAttachments 105-112

VOLUME IIIExhibit Document

V Deposition of LaQuay Dansby 1-108

W Deposition of Arede 1-113Attachments 114-131

X Transcript of Oral Argument on application for preliminary injunction / July 22, 2015 1-145

Y Child Support collection rates / Data from US Census on Poverty in New Jersey / Summary of Collected Statistics

Summary: State rankings on collection rate 1

The United States Department of Health & Human Services, Office of Child Support Enforcement Preliminary Report for FY 2014 2-3

Summary Rankings of each state overall wealth 4-6

Rankings of each state median income 7-11

PRELIMINARY STATEMENT

This court is asked to grant summary judgment and remedy the

unconstitutional processes utilized to suspend the driver's

licenses of defaulted child support obligors. As explained

herein, the current process is violative of both procedural and

substantive due process, has a racially disparate impact, is

violative of state and federal laws, and is contrary to the

legislative and congressional intent, ultimately depriving

children of support.

In compliance with a Federal mandate that States develop

procedures to suspend the licenses of those wilfully in default

on a child support obligation, New Jersey enacted the New Jersey

Child Support Program Improvement Act. However, in spite of both

a congressional and legislative intent that suspensions be

imposed only as a last resort and only after a proper hearing is

conducted and where an obligor has the opportunity to be heard

and a there is evidence that a suspension will be coercive,

99.429% of the 20,498 suspensions in New Jersey last year were

imposed automatically with no inquiry as to whether the default

was willful.

When accomplished in this fashion, license suspensions have

the opposite effect of that intended and cause extreme economic

hardship to both the obligor and, by extension, to the children

entitled to support. It is also a blatant violation of the United

States and New Jersey Constitutions.

Closely aligning with the breakdown of racial statistics as

to those who live in poverty, the vast majority of those

suspended are non-whites (Exhibit M).

Norman Epting sat as a Child Support Hearing Officer for 19

years. He attended monthly meetings with the AOC and underwent

constant training. During the course of his nearly two decades of

service, he presided over approximately 40,000 child support

enforcement hearings. As he testified, the ability to suspend a

driver's license "should remain a tool in the box," but the way

it is currently being used is counterproductive and has serious

due process concerns (Exhibit S1, 48:22-49:2).

Plaintiffs moved for a preliminary injunction in May. On

July 22, 2015, the court determined that it required a more

thorough factual record before addressing the legal and

constitutional issues. Discovery, which was extensive, has been

completed. There are no relevant, material fact issues at this

juncture which would preclude the court from addressing the

merits as a matter of summary judgment.

As set forth herein, the granting of the relief urged by

plaintiffs will result in the legislative intent of the New

Jersey Child Support Program Improvement Act being furthered and

the vindication of the Constitution and fundamental fairness.

STATEMENT OF FACTS

Andreana Kavadas

1 Exhibit S: Deposition of Norman Epting, followed by his certification.

Named plaintiff Andreana Kavadas ("Andreana") lives far

below the poverty line. She receives means-tested benefits

including food stamps, Medicaid, and WIC (Exhibit J2 14-19,

Exhibit T3 82:21-82:23). She is the parent of five children

ranging in age from 17 years to 21 months: Phoenix Zander Kavadas

Pietrangelo (17), Lily Magdalen O'Donnell (10), Evangeline Grace

Andrews, Dillinger Brian Andrews (4), and Julian Saint Andrews

(21 months) (Exhibit T, 11:10-11:21).

Andreana has changed addresses often and has been homeless

on a number of occasions, often staying with various friends and

relatives (Exhibit T 16:14-17:13). Her youngest child, Julian,

was born in a homeless shelter in Philadelphia in 2013 (Exhibit

T, 17:14-17:18). Although her Social Security Earnings Statement

demonstrates that the maximum she has ever earning in one year is

less than $5,000 (Exhibit J 20-23), Andreana is the sole source

of support for Dillinger and Julian.

Her only court ordered support obligation is for Phoenix.

In 2011, Andreana's parental rights to Lily were

terminated.4 She gave birth to Evangeline during the pendency of

the DYFS action regarding Lily. The Division removed Evangeline

2 Exhibit J: Certification of Andreana Kavadas and attachments.3 Exhibit T: Deposition of Andreana Kavadas.4 Andreana was not accused of abuse, but of maintaining a highly dysfunctional relationship with Lily's father, having psychological issues, and having a home that was messy to the point of being unsuitable for a child. The appellate decision is available at dpdlaw.com/Exhibits.html (visited December 4, 2015).

from the hospital (after Andreana had spent two days with her)

based solely on Andreana having an open DYFS case at that time

(Exhibit T, 24:8 to 24:16). Sadly, Evangeline died on July 19,

2009 while in the care of her paternal relatives (Exhibit T,

24:24 to 25:25). Andreana retains custody of Julian and

Dillinger. She is separated from their father, but receives no

child support as a result of their father having personal issues

affecting his ability to pay (Exhibit T, 16:7-16:13).

Andreana has been required to pay on three support orders

for Phoenix - one to his paternal grandfather, Daniel

Pietrangelo, one to Phoenix's father, David Pietrangelo, and one

for William Gerry. None of the orders referenced the others and,

in spite of her pro se requests to do so, the cases are not

consolidated for enforcement purposes in the county where she

resides (Exhibit J 5-7). Judges in two and sometimes three

counties have entered enforcement orders and warrants - sometimes

within days of each other (Exhibit J 1-7). Before the case to

William Gerry was closed, Andreana was subject to three separate

warrants for arrears to him which totalled less than $200,

posting release amounts of $66.67 (07/9/10), $50 (06/30/11), and

$89.90 (07/24/12) - all amounts less than the license restoration

fee. She remains unemployed as she cannot afford daycare for

Julian and Dillinger (Exhibit T 90:1-92:3).

As a result of default, Andreana has been compelled to

attend Enforcement of Litigant's Rights hearings that determine,

among other things, whether to subject her to the suspension of

her license without further notice or process if she fails to

comply with the support order in the future, without further

inquiry into whether she has the ability to do so (e.g., J 32-33,

48-49).

Andreana has been unable to remain current and has fallen

into arrears. She has been arrested several times and remains on

two week bench warrant status. There have been 13 arrest warrants

entered. On many of these occasions her license was already

suspended as she had been unable to pay the $100 restoration fees

from a previous suspension (Exhibit J 1-6, 106-111). She was not

notified of her right to an attorney nor provided with counsel as

to of any of these suspensions in spite of being indigent and

facing this consequence of magnitude.

Her most recent arrest was in the presence of her then 14

month old and three year old (Exhibit J 77). The arrest was

traumatizing to both children. The jail receipt indicates that

her mother paid $150 to secure her release (J 24). Andreana

remains under threat of a license suspension without any further

process and without a recent finding that she is in willful

violation of the orders rather than being unable to comply.

On at least one of the occasions that a warrant (and

resulting automatic driver's license suspension) was issued,

Andreana was homeless and her failure to appear was the result of

having no address at which she could receive mail.

The result of the loss of Andreana's license has been harsh.

She certifies that she was denied a job because it required that

the applicant possess a valid driver's license (Exhibit T, 41:18-

41:23, 42:15-43:18). As a result of her continuing unemployment

and inability to pay, she remains subject to a warrant and

automatic license suspension. Whether it again occurred in their

presence or not, her arrest would require that Julian and

Dillinger be placed with a third party.

When her license has been automatically suspended, the

suspension notices from the Motor Vehicle Commission all indicate

that her license was suspended prior to the date the notice was

mailed (Exhibit J 86-89) and she was thus not advised that she

should stop driving or would be subject to criminal penalties for

Driving While Revoked. Andreana has learned of suspensions

directly from the police (Exhibit T, 81:1-81:3).

Andreana has received warning notices on a random basis over

the years (Exhibit J 1-6). In 2011, she received a notice of

intent to terminate probation services on one of the accounts

(which carried an arrears balance of $199, Exhibit J 40) and, on

the same date, a notice of delinquency on the same account.

All the notices she received were sent via regular rather

than certified mail. While the notices and orders contain a

generic threat that her license may be suspended for failure to

pay support and remind her of her right to file a motion seeking

a modification of her obligation, she has never received a notice

informing her that she has the right to a hearing specifically

tailored to determine whether the suspension of her license would

be coercive rather than counterproductive. She has never received

specific notice informing her as to the date of an impending

suspension. Although she remains on active bench warrant status,

the majority of the orders she has received have the "check box"

provision reflecting the existence of bench warrant status (and

indicating how many missed payments will result in the issuance

of a warrant) left unchecked. One such order directly states "the

stipulation that if two payments are missed on this account, a

bench warrant will be issued for the NCP's arrest is still an

active remedy on this account." The "bench warrant status" box is

unchecked, incorrectly implying that she is not subject to bench

warrant status (J 70).

Sometimes, a Notice of Delinquency or Intent to Issue Bench

Warrant is sent and a warrant (and resulting license suspension)

issued days later. Other times, there is a lapse of many months

between the notice and suspension (Exhibit J 1-6). Receiving

contradictory, irregular general warnings from probation does not

constitute constitutionally adequate, specific notice as to a

pending state action as serious as suspending a license.

Alisha Grabowski

Following an injury that left her unable to care for her

children Sabrina and Garret, named plaintiff Alisha Grabowski

("Alisha") agreed to transfer residential custody to her former

husband. He applied for child support. Alisha was then working as

a legal secretary and earned a good salary. A support order of

$242 per week was entered (Exhibit K5). She later lost this

employment as a result of issues with PTSD related to the injury

as well as depression (Exhibit U6, 32:9-32:13, 69:12-62:19).

Shortly thereafter, she became pregnant with her third child,

Callie. With little savings, Alisha soon fell into arrears.

In 2008, while six months pregnant, she attended an

Enforcement of Litigant's Rights hearing before a Child Support

Hearing Officer (Exhibit U, 51:8-51:22).

Alisha was ordered to make a lump sum payment toward arrears

or an arrest warrant would be issued, which would have resulted

in her license being automatically suspended without further

hearing (Exhibit U, 51:16-51:20). She required her license to see

care providers for her pregnancy and to drive her ailing

grandmother (for whom she was caring at the time) to doctor's

appointments (Exhibit U, 85:14-85:25).

5 Exhibit K: Certification of Alisha Grabowski and attachments.6 Exhibit U: Deposition of Alisha Grabowski and attachments.

Under the challenged procedures, she was never afforded the

opportunity to explain how the suspension of her license would

cause a hardship to her unborn child - the suspension would be

automatic upon the issuance of a warrant based solely on her

failure to pay, with no contemporaneous inquiry whatsoever into

whether this default was willful. Although her former husband

eventually agreed to reduce her support obligation to $100 per

week plus $50 toward arrears (Exhibit K 28-30), Alisha has been

unable to maintain even this obligation and remains in arrears.

She borrowed the funds to make the $5,000 lump sum payment from

her grandmother (Exhibit U, 84:20-85:24), but has been unable to

earn sufficient income or borrow sufficient money to remain

current and therefore remains in arrears (Exhibit U, 50:1-50:6,

Exhibit K 44).

Since the entry of that order, Alisha had another child,

Ethan, who is now 29 months old. She is unemployed and struggles

to make ends meet. Unsurprisingly, she has not been able to

maintain her support obligation. She remains on "two week warrant

status" and thus under the threat of a license suspension without

any further process and without a contemporaneous inquiry into

whether any default is a result of a refusal to comply rather

than her inability to do so. Her arrest and the loss of her

license would result in Ethan being separated from his mother for

the first time in his life. Additionally, she does not receive

child support from Callie's father, so she is Callie's only means

of support (Exhibit U, 48:23-48:24).

Alisha has received notices identical to those received by

Andreana and the other plaintiffs. They are all sent via regular

mail only.

LaQuay Dansby

Plaintiff LaQuay Dansby ("LaQuay") was an officer in the

United State Marine Corps. At the end of a failing marriage, he

committed an act of Domestic Violence. Because the incident

occurred on a military base, LaQuay was charged with a federal

offense. He was discharged from the Marine Corps and carries a

federal felony conviction (Exhibit V7, 7:17-7:21).

Even though this was LaQuay's only criminal conviction in

his life, because it was a federal offense, it is not subject to

expungement. Although he has a degree in international economics

from Stockton University (Exhibit V, 24:11-24:23), his discharge

from the Marines and the conviction have made it essentially

impossible for him to obtain employment at anything approaching

his level of education, experience and intelligence.

7 Exhibit V: Deposition of LaQuay Dansby and attachments thereto.

LaQuay is under a child support order requiring him to pay

$105 per week plus $30 toward arrears and currently carries

approximately $20,000 in arrears (Exhibit L order). He has had

his license suspended nine times (Exhibit L 10-11, 94-104). All

of these suspensions were imposed automatically as the result of

a child support warrant being issued. He has been charged with

driving while suspended as the result of an automatic suspension

of his license. In at least one instance, LaQuay testified that

he learned of the suspension as a result of the issuance of a

summons for driving while revoked (Exhibit V, 58:15-58:22).

LaQuay remains in arrears and unable to make the required

payments. He is therefore under the threat of a warrant and

resulting automatic license suspension at any time (Exhibit V,

Exhibit L). Although he was appointed counsel in 2013 when found

to be indigent and facing jail at an Ability to Comply hearing,

he was not provided with counsel at any hearing between 2008 and

2013.

Like Andreana, LaQuay has received standardized warning

notices (Exhibit R) on a random basis over the years (Exhibit L,

1-3). While the notices (and orders) contain a generic threat

that his license may be suspended for failure to pay support and

remind him of his right to file a motion seeking a modification,

he has never received a notice offering him a hearing

specifically tailored to determine whether the suspension of his

license would be coercive rather than counterproductive, nor that

he has a right to counsel at such a hearing. He has never

received a specific notice informing him as to the date of an

impending suspension.

Sometimes, a notice will be sent and a warrant and resulting

automatic license suspension issued days later. Other times,

there will be months between the notice and the actual

suspension:8

Document DatedDays between notice and warrant / automatic suspension

8 The chart contained here is abbreviated to show only the warning or notice most recently provided before a warrant for Failure To Pay was issued. A complete chart containing all notices, probation-generated ELR motions, Notices of Intent to Issue Bench Warrant, and Notices of Delinquency follows Mr. Dansby's certification at Exhibit L.

Two Week BW status order 3/19/10Note: Title IV-D Orders entered 4/30/10, 5/10/10, 6/29/10 - do not indicate BW status activeWarrant / automatic suspension 7/6/10 109

Title IV-D Order entered 9/13/10 with Two week BW status showing active

9/13/10

Title IV-D Orders entered 10/1/10 does not indicate BW status active / No other notices or warnings issued

10/1/10

Warrant / automatic suspension 10/4/10 21

Notice of intent of Bench Warrant 10/26/12

Warrant / automatic suspension - FM docket - not included

11/29/12 34

Notice of Delinquency 5/1/13

Notice of Intent of Warrant 9/20/13

Warrant / automatic suspension 9/23/13 3

Paulo Arede

Paulo Arede ran a small truck driving business. Working with

two other drivers, he drove heavy trucks delivering import-export

container goods in Newark (Exhibit W9, M10).

Following the breakdown of his marriage in 2006, he began to

demonstrate symptoms of Major Depressive Disorder, severe,

recurrent Panic Disorder and General Anxiety Disorder (Exhibit W,

including 9:6-9:25, 27:23-28-13, 35:9-36:3). He has been

prescribed a variety of psychotropic medications, including

Escitalopram (depression and generalized anxiety disorder),

9 Deposition of Paulo Arede.10 Certification of Paulo Arede and attachments thereto.

Gabapentin (bipolar disorder, anxiety), Venlafaxine (depression,

generalized anxiety disorder, panic disorder, and social anxiety

disorder). Paulo became unable to work as a result of these

disorders and he fell into arrears. His driver's license has been

suspended numerous times as the result of his failure to make

required payments.

Paulo was initially found not to be indigent by a Family

Court judge in 2010, however orders entered in 2012 specifically

found him indigent. He was declared disabled by the Social

Security Administration effective in 2013 and receives

Supplemental Security Income benefits of $741.25 per month

(Exhibit M 9-23). In spite of the SSA determination, he remains

subject to a support order based on imputed income. Although

there is no allegation that he earns the amount imputed to him

and can actually pay it, he remains on bench warrant status and

the suspension of his license without further notice or hearing.

Almost all of the orders Paulo has received have checkbox 18 left

unchecked, incorrectly implying that he is not on bench warrant

status (Exhibit M 38-39).

Mr. Arede struggles with the English language. Although he

has some degree of literacy, in his deposition, he described

(through an interpreter) his level of fluency in English as very

poor (Exhibit W, 83:7-83:9). He took college courses in English,

with significant help from bilingual friends, passing Algebra and

Calculus courses, but failing writing courses as a result of his

English skills (Exhibit W, 83:13-83:19). He has a translator

appointed for court appearances, although he will sometimes

answer in English. Notwithstanding this recognition by at least

one segment of the Judiciary as to his language limitations, the

limited communications he has received have all been in English,

with no attempt to verify his literacy or his English skills.

Paulo has received irregular notices and warnings from

probation. On at least two occasions (Exhibit M-411), a warrant

was issued without his having received any warning notices. He

has never received a notice that informed him of a specific right

to a hearing to determine if a license suspension would be

counterproductive.

BACKGROUND

1. Overview: Poverty and support debtors.

In contrast to the "deadbeat parent" stereotype that has

traditionally been portrayed in the media, the overwhelming

majority of defaulted obligors in child support enforcement

hearings are indigent parents akin to the plaintiffs herein.

Whereas research into this issue was sparse when the New

Jersey Child Support Program Improvement Act was introduced and

signed into law, these statistics are no longer debatable, having

been compiled and relied on by scholars, government agencies, and

courts. See, e.g., Ronald K. Henry, Esq., CHILD SUPPORT AT A

CROSSROADS: WHEN THE REAL WORLD INTRUDES UPON ACADEMICS AND ADVOCATES,

Family Law Quarterly,(1999); Kirsten D. Levingston and Vicki

Turetsky, DEBTORS' PRISON PRISONERS' ACCUMULATION OF DEBT AS A BARRIER TO

REENTRY, 41 Clearinghouse Rev. J. Poverty L. & Pol'y 187, 191

11 Warrants issued 7/30/10 and 4/21/14.

(2007).

The federal Office of Child Support Enforcement (OCSE) has

now similarly acknowledged that the vast majority of child

support arrearages nationally are owed by indigent obligors. U.S.

Dep't of Health & Human Servs., Admin. for Children and Families,

Office of Child Support Enforcement, UNDERSTANDING CHILD SUPPORT DEBT:

A GUIDE TO EXPLORING CHILD SUPPORT DEBT IN YOUR STATE 4-7 (2004),

(available at

http://www.acf.hhs.gov/sites/default/files/ocse/dcl0428a.pdf12

(visited 10/22/2014)).

The media has also begun to recognize that many aspects of

the current child support enforcement schemes across the country

are in practice oppressive and ultimately self-defeating.

Spurred by the death of Walter Scott on April 19, 2015, who

was shot and killed while running from a South Carolina police

officer to avoid what would have been his sixth incarceration as

the result of child support arrears, the New York Times explored

the issue and noted the correlation between poverty and child

support, questioning many of the self-defeating aspects of

current enforcement techniques. See, Robles, Frances and Dewan,

Shalia, SKIP CHILD SUPPORT. GO TO JAIL. LOSE JOB. REPEAT. The New York

Times, April 19, 2015 (reviewing additional statistics generally

as to poverty and support debtors) (Exhibit D 1-5). See also,

12 As many of the internet addresses are extremely long, for convenience all addresses and websites referenced are assembled with forwarding links on www.dpdlaw.com/exhibits.html (accessed December 6, 2015).

Diskin, Colleen, INSIDE THE WORLD OF "DEADBEAT DADS": IN AND OUT OF JAIL,

UNABLE OR UNWILLING TO PAY, Bergen Record, July 26, 2014 (quoting

Richard Narcini, former Chief of Child Support Enforcement for

the State of New Jersey "In the last few years, there is more

understanding that there are people out there who are really

trying to pay but have fallen on hard times.") (Exhibit D 11-15).

The statistics that are contrary to the rising tide of

evidence do not withstand scrutiny. In one study cited by the

United States Supreme Court in Turner v. Rogers, 546 U.S. ____,

131 S.Ct. 2507, 2520, 180 L.Ed.2d 452, 466 (2011), Supreme Court

Justice Clarence Thomas cited a study finding "42 percent of

nonresident [noncustodial parents ] who did not pay formal child

support had no apparent financial reason to shirk this

responsibility." Citing Elaine Sorensen & Chava Zibman, GETTING TO

KNOW POOR FATHERS WHO DO NOT PAY CHILD SUPPORT, 75 Soc.Serv.Rev. 420,

422 (2001). Even accepting this dubious claim arguendo, it would

also suggest that 58% percent of the obligors in that study did

have an "apparent financial reason" for defaulting.

Similarly, Justice Thomas cited to "The Underground

Economy", a report by a Michigan Supreme Court Task Force, for

the prospect that "many deadbeat [parents ] opt to work in the

underground economy to shield their earnings from child support

enforcement efforts." Once again, a review of the study cited

gives a very different picture. While the task force did make

that statement, it was noted several pages later that this often

occurs because "many child support obligors flee into the

underground economy to avoid an overwhelming support debt." The

study's conclusion urged reforms including ensuring that support

be tied to the actual ability to pay of the obligor and "[c ]hild

support agencies must intervene before non-modifiable arrearages

become so large that noncustodial parents can't possibly catch

up." See, Mich. Sup. Ct., TASK FORCE REPORT: THE UNDERGROUND ECONOMY

(2010) (available at

http://courts.mi.gov/Administration/SCAO/Resources/Documents

/Publications/Reports/UETF-2010.pdf (visited April 14, 2015)

(visited April 14, 2015)).

The federal Office of Child Support Enforcement findings for

New Jersey are similar. 73% of child support arrears in New

Jersey are owed by noncustodial parents who have either no

quarterly earnings (44%) or annual earnings of less than $10,000

(29%). UNDERSTANDING CHILD SUPPORT DEBT, supra at 6. Just 4% of

arrears are owed by parents who had annual earnings above

$40,000. Ibid. The OCSE has recently added to its website a host

of studies and statistics reporting findings consistent with

those set forth above. See, U.S. Dep't of Health & Human Servs.,

Admin. for Children and Families, Office of Child Support

Enforcement, ALTERNATIVES TO INCARCERATION IM-12-01 (2012), (reviewing

statistical ties between poverty and child support debt)

(available at (available at http://www.acf.

hhs.gov/programs/css/resource/alternatives-to-incarceration

(visited April 24, 2015) (visited April 24, 2015)). See also,

EXAMINING CHILD SUPPORT ARREARS IN CALIFORNIA: THE COLLECTIBILITY STUDY,

California Department of Child Support Services (finding 73% of

support debtors earn $15,000 or less, while a quarter have no

reported income and only 1% have recent net incomes over $50,000

(www.cafcusa.org/docs/DCSS _2003_ collectability_study.pdf at

page 83 (visited March 30, 2015)).

Closely aligning with the breakdown of racial statistics as

to those who live in poverty, the vast majority of those

suspended are minorities (Exhibit N). If the system was

functioning as intended and only taking coercive action against

those who can pay but are refusing to do so, one would expect

that the racial breakdown would be the precise opposite and would

align with wealth, not poverty.13

None of this is intended to imply that there are not capable

parents who willfully resist support obligations and who will

only respond to coercive methods to compel the payment of

support. However, the court must make the effort to separate the

unwilling to pay from the unable to pay and employ coercive

measures such as license suspension only when appropriate and

constitutional to do so. This can only occur when the statutory

protections are adhered to, the constitutional mandate of an

individuated hearing is respected, and indigent obligors are

provided counsel as per the mandate of the New Jersey Supreme

Court.

The named plaintiffs are all subject to the provisions of

The New Jersey Child Support Program Improvement Act, N.J.S.A.

2A:17-56.7a to -56.66. Plaintiffs explain in their certifications

and deposition testimony that the automatic suspension of their

13 See also, Deposition of retired Hearing Officer Norman Epting, Exhibit S, 76:20-77:20 ("It's black and brown court or it's a black and Hispanic court.")

licenses made it more difficult to get to court to address a

warrant, to pursue employment, and to see their children.14 They

did not have the means to comply when "all" they faced was the

issuance of a warrant and their physical arrest and

incarceration. None suddenly became able to do so because the

loss of a license was also automatically imposed.

2. Legislative History of N.J.S.A. 2A:17-56.7a et seq.

To understand how the system evolved to its current state,

it is necessary to briefly review the legislative history of the

federal Personal Responsibility and Work Opportunity

Reconciliation Act ("PRWORA") and the resulting New Jersey Child

14 While the inability of an obligor to drive to see his or her child as a result of a license suspension raises humanitarian concerns, it also effects the payment of support. Maintaining a bonded relationship between a noncustodial parent and her or his child remains the most effective means of ensuring the payment of support. 90.2% of non-custodial parents with joint residential custody and 79.1% of non-custodial parents with shared parenting pay child support on time and in full; only 44.5% of non-custodial parents with no contact with their children reliably pay child support. U.S. Dep't of Health & Human Servs., Admin. for Children and Families, Office of Child Support Enforcement, PRELIMINARY DATA FROM THE 2000 CENSUS.See also, Testimony of Alisha Griffin, New Jersey Division of Family Development, House Ways And Means Committee Hearing, 106 Congress (Importance of encouraging involvement by noncustodial parents with their children as key to obtaining voluntary compliance with support obligations. "We have to access the desire that most people have to care for their children.") (available at http://www.gpo.gov /fdsys/pkg/ CHRG-106hhrg64324/html/CHRG-106hhrg64324.htm) (visited 3/2/2015).

Support Improvement Act ("the Act").

In 1996, the PRWORA, 42 U.S.C. §653 was signed into law by

President Bill Clinton. A key component of the PRWORA was a

requirement that states toughen their child support enforcement

procedures in order to receive a federal block grant under the

Temporary Assistance to Needy Families Program and federal funds

to assist in collecting child support. Under PRWORA, states must

operate a child support enforcement program that meets federal

requirements or face a loss of these federal funds. See Kansas v.

United States, 214 F.3d 1196, 1197 (10th Cir.), cert. denied, 531

U.S. 1035, 121 S.Ct. 623, 148 L.Ed.2d 533 (2000). Among the

mandatory new provisions that States were required to adopt were

"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, professional and occupational licenses, and

recreational 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." 42 U.S.C. § 666(a)(16) (Emphasis added).

The Congressional intent was also clear that the provisions

regarding both the limiting of suspensions to "appropriate cases"

and the mandate that license suspensions be imposed "after

receiving appropriate notice" are requirements, not options,

under the PRWORA. As the Congressional Research Service recently

confirmed:

With respect to child support, review hearing

provisions are based on the premise that a

noncustodial parent has a right to know what

action is being taken and deserves an opportunity

to be heard. Federal law requires that appropriate

notice be given to noncustodial parents who are

about to be subject to driver's license suspension

policies. See CHILD SUPPORT ENFORCEMENT AND DRIVER'S

LICENSE SUSPENSION POLICIES CRS R41762, April 11, 2011

(http://greenbook.waysandmeans.house.gov/sites/

greenbook.waysandmeans.house.gov/files/2012/docume

nts/R41762_gb.pdf (visited April 4, 2015)).

On January 6, 1998, A1645 and S460, "The New Jersey Child

Support Program Improvement Act" was introduced. Its stated

intent was "the efficient establishment of paternity and support

obligations, and the effective enforcement and collection of

child support obligations pursuant to the provisions of [the

PRWORA ]" and "to implement requirements which the State must

adopt under the federal [PRWORA ] of 1996."

Among other modifications and additions to the existing

statute addressing the enforcement of support and allegedly in

furtherance of the federal mandate, the Act proposed a list of

factors (now codified in N.J.S.A. 2A:17-56.41(3)(a)) to be

considered on an individuated basis at support enforcement

hearings when a license suspension was being considered.

The legislative history of the Act is silent as to the issue

of automatically suspending licenses.15 To the contrary, the

Senate Judiciary Committee Statement notes that license

suspensions under the bill will be imposed on "obligors who have

failed to make a required, current obligation of child support

payment for six months." See

http://www.njleg.state.nj.us/9899/Bills/a2000/1645_r1. pdf

(accessed December 3, 2015). During extensive hearings on the

bill, the only reference at all to licenses was a statement that

the CSIA would "deny professional and driver's licenses to people

seriously delinquent and add recreational licenses such as

boating and fishing, hunting to that list."

http://repo.njstatelib.

org/bitstream/handle/10929.1/20025/CHAP1.HTM?

sequence=1&isAllowed=y (accessed November 3, 2015).

On March 5, 1998, the Act was signed into law by Governor

Christine Todd Whitman. The signing statement accompanying the

Act reaffirmed the legislative intent was to "collect more child

support and collect it more quickly."

Pursuant to this law, there are two general methods by which

an obligor's license can be suspended as a result of support

arrears in New Jersey:

15 As set forth above, the clear intent of the legislature was to comply with the requirements of the PRWORA. Automatic suspensions are contrary to the direct text of the Act, which requires States to adopt license suspension or restriction procedures to be applied to obligors who "fail ... to comply with subpoenas or warrants . . . "42 U.S.C. § 666(a)(16) (Emphasis added). If a license is suspended automatically upon the entry of a warrant, it cannot be seen as a reaction to an obligor "failing to comply" with a warrant.

a. The constitutional license suspension process

When a parent required to pay child support falls into

arrears, or fails to respond to a subpoena relating to a

paternity or child support action, or court-ordered health care

coverage is not provided, an obligor can be notified that his or

her driver's license shall be suspended unless, within 30 days of

the postmark date of the notice, the obligor cures the arrears or

makes a written request for a hearing to the Probation Division.

N.J.S.A. 2A:17-56.41 and Rule 5:7-5(e).

If a hearing is requested, a Child Support Hearing Officer

(CSHO) is required to determine whether a license should be

suspended as a means of coercing compliance. Pursuant to § 1731.2

of the Child Support Hearing Officer Program Operations Manual

(Exhibit B), which essentially mirrors the factors set forth in

N.J.S.A. 2A:17-56.43, a CSHO may recommend the suspension of a

license only after finding:

Other appropriate enforcement methods have been exhausted

The obligor holds a license

Child support arrears (six months or more) exist

Health-care coverage has not been provided for six

months or more

No motion to modify the order was filed before the date of

the notice to suspend or revoke the license

No equitable reason exists (involuntary unemployment,

disability) for the obligor's noncompliance.

Additionally, the obligor may contest the license suspension

based on hardship to the obligor, his or her legal dependents

under age 18 in the obligor's household, or the obligor's

employees (Exhibit B).

Like any determination by a CSHO, the obligor has the right

to seek immediate de novo review of a decision before a Superior

Court Judge (Exhibit A, AOC Directive #15-08 at Page 4). If a

litigant disagrees that there is sufficient evidence in the

record to justify an order for a suspension, he can seek emergent

review from the Appellate Division and seek a stay pending the

outcome of an appeal. Rule 2:9-5.

Discovery revealed that the Division of Family Development

has developed a specialized, standardized "Notice of Proposed

License Suspension" form that informs a defaulted obligor of a

scheduled suspension, providing specific notice of a date certain

(30 days from the mailing of the notice) that a suspension shall

be imposed unless the obligor either satisfies the arrears or

completes and returns an attached, simple form requesting a

hearing and explaining the basis of the request (Exhibit O).

If a hearing is requested, a Child Support Hearing Officer

(CSHO) is required to determine whether a license should be

suspended as a means of coercing compliance.

This is the process described in detail by defendants in

every submission since the filing of this case. It advances a

legitimate state interest in coercing the payment of support and

provides both substantive and procedural due process.

Other than its failure to provide counsel and that the forms

are sent only in English, no objection to this process is raised.

It requires that notice be provided and that a formal hearing

must be held where the statutory factors will be reviewed. It

recognizes that the suspension of a driver's license is a tool of

last resort to coerce compliance by a recalcitrant obligor and is

to be considered only when "other appropriate enforcement methods

have been exhausted." When a case-by-case determination is made

at a hearing that the threat of a license suspension will serve a

legitimate coercive goal, it is constitutional and furthers the

legislative intent behind the Act.

4. The unconstitutional license suspension process

New Jersey has established another process by which

defaulted obligors' licenses are suspended. This is the process

essentially ignored by defendants in every submission since the

filing of this case. It provides neither substantive nor

procedural due process and is fundamentally unfair. It is

counterproductive to the goal of increasing support collections.

A. Automatic, no-notice license

suspension upon entry of a "bring

to court" warrant under N.J.S.A.

2A:17-56.41

Directive #15-08 instructs that if an obligor develops any

arrears, or fails to appear for a proceeding, or fails to make a

lump-sum payment, or fails to pay support for a specified number

of weeks, or fails to provide proof of ordered health insurance

coverage, a warrant may be issued "to ensure the obligor's

expedited appearance." Exhibit A at pages 3-4. The Directive

provides that this warrant may issue "without any additional

notice to the obligor." Ibid.

There is no requirement of a reasonably recent determination

of an obligor's ability to comply (Exhibit A).

N.J.S.A. 2A:17-56.41 provides that a driver's license "shall

be suspended by operation of law upon the issuance of a child

support-related warrant." Id. Thus, pursuant to this section, the

same stroke of a pen that issues a "bring to court" warrant

pursuant to Directive #15-08 also removes the obligor's ability

to legally operate a motor vehicle to drive to court to address

non-compliance, to drive to work, to drive to job interviews, to

maintain a job that requires a valid driver's license, and to

drive to have parenting time. The license cannot be restored

until the court so orders and the obligor (regardless of whether

he or she is indigent) pays a $100 restoration fee.

In cases where an obligor fails to appear, this provision of

the law is especially counterproductive and contrary to the

legislative intent of increasing support collections. A hearing

officer in this situation is not empowered to seek only the

issuance of a "bring to court" warrant without causing a license

suspension. The hearing officer is thus faced with a dilemma:

Either he will decline to seek a warrant at all when there is a

failure to appear, or he will take an action that is self-

defeating if there is evidence in the record that an obligor is

employed in a capacity that requires a license (See Exhibits S

and J).

B. Insufficient notice of suspension upon

failure to appear.

N.J.S.A. 2A:17-56.43 provides that "[i ]f 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." In spite of the requirement set

forth in N.J.S.A. 2A:17-56.41 that the notice be sent "by

certified and regular mail, return receipt requested", the

notices are sent via regular mail. Probation is required only to

certify that the notice was mailed and then to make inquiries as

to whether an obligor has updated her address with government

agencies or is incarcerated.

C. Lack of a contemporaneous finding of an ability to comply.

Directive #15-08 permits the issuance of a warrant upon the

accumulation of any arrears existing for any amount of time based

on nothing more than a finding that "bringing an obligor before

the court on an expedited basis will be necessary" (Exhibit A,

passim, including at Page 4). As set forth above, the entry of a

warrant results in the automatic suspension of the obligor's

license.

N.J.S.A. 2A:17-56.43 provides that "[i ]f the obligor fails

to comply with the court-ordered payment schedule, the court

shall, upon receipt of a certification of non-compliance from the

obligee or Probation Division, and without further hearing, order

the immediate revocation or suspension of all licenses held by

the obligor."

There is no time limitation on this provision, and no

requirement of a reasonably recent inquiry into the obligor's

ability to pay or as to the reason for a nonpayment. As

emancipation in New Jersey does not occur until a child has

"moved beyond the sphere of parental influence" (generally - is

no longer a full-time student), an order can theoretically remain

in place for 22 years and a default in year 21 based on an order

entered when a child was one year old can result in the

suspension of a license "without further hearing."

As explained below, these methods are constitutionally

infirm.

D. The effectiveness of the use of license suspensions to

coerce compliance.

In February 2006, the New Jersey Motor Vehicles

Affordability and Fairness Task Force Final Report was released.

It notes that license suspensions as a result of a failure to pay

child support are ten times more common in lower income areas

than in middle or high income areas (Exhibit C at page 29).

The study also addressed in detail the economic effects of a

license suspension and concluded that the suspension of driver's

licenses almost universally results in a decrease in economic

prospects. Specifically, the report found:

42 percent of survey respondents with a history of

suspension lost their jobs when they had their driving

privileges suspended. Job loss was experienced across all

income and age groups; however it was most significant among

low-income and younger drivers.

45 percent of those that lost their job because of a

suspension could not find another job. This was true across

all income and age groups but most pronounced among low-

income and older drivers.

Of those that were able to find another job, 88 percent

reported a decrease in income. This was true in all income

and age groups but most significant among low-income drivers

(Exhibit C at page 38).

See also, Dewan, Shalia, DRIVER'S LICENSE SUSPENSIONS CREATE

CYCLE OF DEBT. The New York Times, April 14, 2015 (reviewing

additional statistics as to the effect of debt-related license

suspensions on earning ability, especially among the poor

(Exhibit D 6-10)).

Mr. Epting similarly described the overall effect of

suspensions on obligors:25 Q. In your experience when you had people

1 come in who had their license suspended, what was 2 the effect of actual license suspension generally 3 and people's ability to pay support? 4 A. It's devastating. It's devastating 5 because they can't -- one of the number one things, 6 I don't have the money to go get the license 7 reinstated. I can't go to the job interview. I 8 can't get to the job. 9 And you would have to see people how 10 forlorn and really desperate they would appear.

11 [They ] would be like trapped. It's sad (Exhibit S at 75:25-76:11).

Presumably aware of the serious repercussions of a license

suspension, the legislature required that the coercive effect of

license suspensions be justified and verified annually. Pursuant

to N.J.S.A. 2A:17-56.50 (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:17-56.40 et

seq."

In 2006, 2007 / 2008 (single report), and 2014 the AOC

submitted a "New Jersey Judiciary Report to the Legislature on

the Suspension of Licenses Due to Child Support Arrears" (Exhibit

H).

The representations in the 2006, 2007, and 2008 reports were

less than accurate. The reports speak in glowing terms as to the

coercive effect of suspensions (Exhibit H). 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."

The report first lists out in detail the statutory criteria

that the legislature painstakingly developed before a license

should be suspended. However, it then concedes in a single

sentence that "the majority of licenses suspended are by

operation of law" (Exhibit E 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.

The use of the word "majority" in the claim that "the

majority of licenses suspended are by operation of law" is also a

drastic understatement. Pursuant to Open Public Records Act

Request W95220 to the Division of Family Development (Exhibit G),

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 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 20,49816 (99.429%)

suspensions last year were imposed without a hearing. 108

(.0057%, one half of one percent) were as the result of either a

hearing or a combination of a hearing and the automatic process

(Exhibit G, page 1).

When 99.429% of suspensions occur automatically pursuant to

the issuance of a warrant, it is obviously impossible to know

whether collections are due to the issuance of the arrest warrant

alone, or due to the license suspension that accompanies it.

In response to a request to the Administrative Office of the

Courts that it provide the data to support its conclusion that

there is "clearly" an additional coercive effect in suspending

driver's licenses over and above simply issuing a warrant

requiring an obligor to be arrested (Exhibit E, page 1), the AOC

16 The Motor Vehicle Commission indicates a much higher number of suspensions (37,455 suspensions in 2014). In spite of multiple requests for an explanation of the discrepancy in discovery, neither counsel were able to determine the reason for it beyond a verbal representation that the higher number from the MVC may include out-of-state suspensions implemented via the Uniform Interstate Family Support Act. The DFD represents that they transmitted 20,498 suspension orders to the MVC and this is the number plaintiffs rely on herein.

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 3).

The claim that the suspension of drivers' licenses as a

coercive tool has been "successful" and has "positively impacted

families that rely upon receiving support" was also inaccurate.

The reports submitted to the legislature in 2006, 2007, and

2008 contained seemingly impressive numbers related to support

collections resulting from license suspensions. The 2007 / 2008

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.

At an average of $33,000,000 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.

$33,000,000 accounts for just over 3% of all the child support

collected in New Jersey in 2010.17

After questions were raised by counsel about the collection

numbers in the prior reports, the AOC submitted its FY 2014

report, the first such report submitted in six years. It showed

total collections via suspensions were about 90 percent less than

previously claimed, with a total collected amount of

$4,333,543.39 - $28,666,456.61 less than the amount represented

to the legislature.

This precipitous drop was revealed in an internal memo

(Exhibit I) supplied by the DFD during discovery:18

Year 2010 Year 2011 Year 2012 Year 2013 Year 2014

Driver's Licenses #Suspensions

18,668 21,037 20,483 22,024 20,498

AmountCollected

$4,729,765.48 $6,108,163.74 $5,333,498.32 $6,087,718.50 $4,333,543.39

The new numbers show that, in fact, license suspensions have

brought in an average of $5,300,000 (not $33,000,000) per year or

a mere $259 (not $1,737) per suspension,19

17 Exhibit Y: U.S. Dep't of Health & Human Servs., Admin. for Children and Families, Office of Child Support Enforcement, Preliminary Report for FY 2014 at page 9: Total distributed collections for New Jersey: $1,091,574,116 ÷ 33,000,000 = 0.03.18 The Report to the Legislature for FY 2014 provided correct information for 2014, but did not mention that all previous reports submitted had massively overstated the amounts collected, nor did it supply the correct amounts for previous years.19

Year Suspensions Amount collected Average per suspension

2010 18,668 $4,729,765.48 $253.36

2011 21,037 $6,108,163.74 $290.35

2012 20,483 $5,333,498.32 $260.39

2013 22,024 $6,087,718.50 $276.41

2014 20,498 $4,333,543.39 $211.41

TOTAL 102,710 $26,592,689.43 $258.91

AVERAGE 20,542 $5,318,537.89 $258.91

or roughly 15% of the amount claimed by the AOC in its reports

to the legislature. The newer figures also demonstrate that

support-related warrants in fact account for less than one-half

of one percent (.43%20) of all collections.

While the 2014 report to the legislature shows significantly

less success in using suspensions for collections, it still fails

to accurately describe the reality of license suspension

practice. The report states that "[o ]nce a case has been

selected based upon above mentioned criteria,21 the NJKiDS system

20 Ibid. Total distributed collections for New Jersey: $1,091,574,116 ÷ 5,300,000 = 0.0043.21 Prior to seeking a license suspension or revocation, all appropriate enforcement methods, when available, such as income withholding, withholding of civil lawsuit awards, and the seizure of assets, must be exhausted. The selection criteria for the suspension of drivers' and professional licenses are as follows: 1) The child support arrearages equals or exceed the amount of child support payable for six months and the obligor is not paying the arrearage through an income withholding or in accordance with a court ordered payment schedule; or 2) Court ordered health care coverage is not provided; or 3) If the obligor fails to respond to a subpoena relating to a paternity or child support action. All attempts to enforce the support provisions through income withholding, withholding of civil lawsuit awards, and the execution of assets, when available, must

will generate a notice of proposed license suspension for child

support, giving the obligor three payment options... If none of

the payment plans are feasible, or if the recipient alleges an

error has been made, he or she can contest the proposed

suspension and request a hearing." In fact, this process was not

utilized in 99.429% of the suspensions imposed and falsely

implies that the system is proceeding in a just manner that

provides individuated hearings. Although removing the words

"successful, frequently employed method", the 2014 report still

claims "driver's license suspension continues to be an effective

tool in enforcing child support obligations."22 With a total

of 494,293 suspensions since the enactment of the CSIA in 1998

(Exhibit F), this "additional revenue stream for the MVC"

constituted $49,429,300 paid to the MVC rather than to

children in poverty since 1998.

As of December 6, 2015 (based on 2014 suspension numbers),

$1,200,474 has been diverted to the MVC since the filing of this

suit on May 1.

In sum, the facts demonstrate that the current license

suspension system is tremendously ineffective, denies obligors of

constitutionally guaranteed due process and is counterproductive.

Defendant have no cognizable interest in maintaining the current

be exhausted before license suspension is attempted. 22 The 2014 report also removed the notation appearing in previous years' reports that "as an indirect benefit, [the suspension process ] has resulted in an additional revenue stream for the Motor Vehicle Commission."

scheme. This court must act to remedy it.

Legal Argument

Point I: THE COURT SHOULD GRANT SUMMARY JUDGMENT

IN FAVOR OF PLAINTIFFS.

A. Plaintiffs have demonstrated their

entitlement to summary judgment

under the controlling legal

standard.

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).

Pursuant to Rule 4:46-2, a Statement of Material Facts is

attached. The application of the facts set forth therein to the

legal principles argued below should persuade the court that

summary judgment should be granted.

B. Plaintiffs have established their

entitlement to declaratory and

injunctive relief as set forth in

the complaint.

When a constitutional or statutory right is violated, a

plaintiff is entitled to injunctive relief. Although the rights

at issue here were plain, this rule holds true "even if the right

was not sufficiently clear that a reasonable official would

understand that what he [was ] doing violate[d ] that right,"

Tumpson v. Farina, 218 N.J. 450, 464 (2014), citing Anderson v.

Creighton, 483 U.S. 635, 640 (1987), Sears, Roebuck & Co. v.

Camp, 124 N.J. Eq. 403 (E. & A. 1938). Plaintiffs are entitled to

injunctive relief.

Declaratory relief is appropriate when a party seeks to end

uncertainty about legal rights and duties in controversies which

have not yet reached the stage at which the parties may seek a

coercive remedy. Union County Bd. of Chosen Freeholders v. Union

County Park Comm'n, 41 N.J. 333, 337 (1964). A declaratory

judgment may be rendered whenever there is an actual controversy

between the parties which involves differing views on the meaning

of applicable statutory provisions, Id at 336.

As set forth herein at length, plaintiffs have established

their right to a declaratory judgment ordering that these defects

be remedied.

Not all of the plaintiffs have directly suffered all of the

unconstitutional aspects of the current process. However, all

remain obligors and all remain in arrears. All remain

involuntarily subject to the enforcement mechanisms of the law.

They each seek to "end uncertainty about legal rights and duties

in controversies which" although not all of them have reached the

stage at which the parties may seek a coercive injunctive remedy.

Remedies

1. The court should strike the provision of N.J.S.A.

2A:17-56.41(a) mandating the automatic suspension of

licenses.

The easiest way to remedy the majority of the defects with

the current process is to enjoin the automatic suspension of

licenses pursuant to N.J.S.A. 2A:17-56.41(a).23 Addressing this

issue as a matter of statutory interpretation would permit the

court to avoid a constitutional question, which it should do

"unless its resolution is imperative to the disposition of

litigation." Randolph Town Ctr., L.P. v. Cnty. of Morris, 186

N.J. 78, 80 (2006).

The purpose of the New Jersey Child Support Program

Improvement Act is to increase the collection of child support.

The legislature specifically stated that it sought "to implement

requirements which the State must adopt under the federal

[PRWORA ] of 1996." The PRWORA requires States to enact

"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 . . ." 42 U.S.C. §

23 Specifically, this would moot Point III in its entirety and moot Points II, A, B, C, E and F.

666(a)(16) (Emphasis added)." Federal law requires that

appropriate notice be given to noncustodial parents who are about

to be subject to a driver's license suspension. CHILD SUPPORT

ENFORCEMENT AND DRIVER'S LICENSE SUSPENSION POLICIES CRS R41762, April

11, 2011 (http://greenbook.

waysandmeans.house.gov/sites/greenbook.waysandmeans.house.gov/fil

es/2012/documents/R41762_gb.pdf, (visited April 4, 2015)).

Suspending licenses pursuant to procedures that explicitly occur

"without further notice" when there is a default (Exhibit A) does

not comply with this mandate.

When a court is asked to decide a statutory construction

issue, its "overriding goal must be to determine the

Legislature's intent." State Dep't of Law & Pub. Safety v.

Gonzalez, 142 N.J. 618, 627, (1995) (citing Young v. Schering

Corp., 141 N.J. 16, 25 (1995)). In light of the damage they

cause, automatic suspensions without inquiry or hearing is

directly at odds with the expressed legislative goal and creates

a manifestly absurd result. See, Hubbard v. Reed, 168 N.J. 387,

392 (2001), quoting Turner v. First Union Nat'l Bank, 162 N.J.

75, 84 (1999); New Jersey Builders, Owners, & Managers Ass'n. v.

Blair, 60 N.J. 330, 338 (1972).

The single sentence in N.J.S.A. 2A:17-56.41 requiring that

"[t ]he obligor's driver's license shall be suspended by

operation of law upon the issuance of a child support-related

warrant" is the root of many of the problems before this court.

"[A ]t times our courts have determined that the Legislature's

use of the word 'shall' does not always carry an imperative, but

sometimes a directory, connotation. If "shall" is interpreted as

having a permissive rather than mandatory connotation here, and

"by operation of law" interpreted as "pursuant to the procedures

set forth in N.J.S.A. 2A:17-56.43", many of the defects would be

remedied. Our courts have concluded that 'may' and 'shall'

sometimes 'have been held to be interchangeable when necessary to

implement legislative intent." State v. Jorn, 340 N.J.Super. 192,

196 (App.Div.2001); No Illegal Points, Citizens For Drivers'

Rights, Inc. v. Florio, 264 N.J.Super. 318, 329 (App.Div.1993),

certif. denied 134 N.J. 479 (1993). "The significant

consideration is whether the provision in question relates to the

essence of the law or merely to the form and manner in which it

is to be carried out. If no public benefit ensues and no private

right is insured by according the word `shall' an imperative

meaning, it is to be construed as directory rather than

mandatory." Franklin Estates v. Township of Edison, 142

N.J.Super. 179, 184 (App. Div.1976) aff'd, 73 N.J. 462 (1977).

The court should not presume that the legislature intended

to short-circuit all of the procedures and process contained in

the remainder of the statute and to create an exception that

would swallow the rule, thus granting constitutionally mandatory

due process to less than one-half of one percent of defaulted

obligors and "inflict[ing ] counterproductive economic damage on

impecunious child support obligors." (Exhibit Q, page 2, ¶3). The

provision of the statute mandating the automatic suspension of

licenses should be excised.

2. In the alternative, the court should order defendants to

proceed via the issuance of writs of capias ad satisfaciendum

rather than arrest warrants.

In the alterative to performing judicial surgery on the

statute, the court should order defendants to proceed via the

issuance of writs of capias ad satisfaciendum rather than arrest

warrants. This also would put an end to automatic suspensions

without impeding the ability of the Family Court to enforce

orders. This could be accomplished by the use of writs of capias

ad satisfaciendum (ca. sa.) rather than warrants as N.J.S.A.

2A:17-56.41 requires the automatic suspension of a driver's

license only "upon the issuance of a child support-related

warrant."

The origins of the writ capias ad satisfaciendum predate New

Jersey's 1844 constitution. It is codified at N.J.S.A. 2A:17-78

and promulgated in Rule 4:59-1(a). The writ permits the arrest of

a judgment debtor and bring him or her before the court to secure

payment if there is evidence the debtor has the ability but not

inclination to comply. See Perlmutter v. DeRowe, 58 N.J. 5, 13-14

(1971) (Discussing background and history of the writ).

There is already a substantial body of case law addressing

the use of capias writs. For example, in Marshall v. Matthei, 327

N.J.Super. 512 (App.Div. 2000) the Appellate Division noted that

the standards applicable to a R. 1:10-3 contempt incarceration

and an application for a writ of capias ad satisfaciendum are

essentially identical and that there is "no reason why the same

standards as have developed to govern civil contempt and

proceedings in relief of litigants' rights should not apply, as

appropriate, to ca. sa. commitments..." Pasqua v. Council, 186

N.J. 127, 141 (2006).

Capias writs have long been utilized to coercively

incarcerate when there is evidence of an ability but not

inclination to comply with a support order. See, e.g. Morgan v.

Morgan, 1 Stew. 23, 28 Eq. 24 (1877) (Application for writ of

capias ad satisfaciendum denied where movant's papers failed to

allege debtor's ability to comply). Many states still utilize

capias writs and distinguish them from arrest warrants. See,

e.g., General Law c. 215, §34A, c. 231, 6C (Massachusetts);

§9-5-7, Ch. 784, § 1 (Rhode Island); Connecticut General Statute

§46b-231(m)(7)) (Connecticut); VA§19.2-123,-152.4:1,303.3

(Virginia).

Additionally, as an order for coercive incarceration is

based on a civil finding of a wilful failure to pay and not

probable cause, the use of writs rather than warrants would

address the glaring constitutional defect arising from the

requirement that an arrest warrant cannot issue unless "there be

probable cause to believe that a crime has been committed and

that the person sought to be arrested committed the offense" See,

N.J. CONST. ART. I, § 7 , State v. Chippero, 201 N.J. 14, 28 (2009)

(exploring the difference between probable cause for a search

warrant and probable cause for an arrest warrant).

Requiring that contempt arrests be initiated via the

issuance of writs rather than warrants would moot many of the

legal arguments contained herein as the automatic, no-notice

suspension of a license is required only upon "the issuance of a

child support related warrant." With no automatic suspensions,

defendants would revert to the process set out by the legislature

N.J.S.A. 2A:17-56.43 before a license is suspended.24

3. The court should order injunctive relief to remedy the

defects in the current license suspension process.

For the reasons set forth here, and to the extent it would

not be rendered moot if relief is granted pursuant to Point I(C)

(1) or (2) above, the court should order the following injunctive

and declarative relief:

1. Natasha Johnson and the DFD should be precluded from

transmitting any suspension orders, and Chief Administrator

Martinez from acting on any such transmitted orders that act

to suspend the driver's licenses of obligors absent

compliance with the constitution and laws of the United

States and the State of New Jersey. Specifically:

A. In the event the relief argued for in Point I(C)(1) or (2)

above is not granted, no suspension should be imposed as the

result of the issuance of a child-support related warrant (and

thus the automatic suspension) absent evidence that the warrant

was issued only after an obligor was provided with the same

procedural due process that would have applied had a direct

24 Specifically, it would moot Points II(A)1-3 (procedural due process), II(E) (substantive due process), II(F) (constitutional issue of the AOC exceeding it constitutional mandate), III(E) failing to provide statutorily-required 20 day period before suspension is effective.

license suspension been ordered, including a contemporaneous,

Mathews-compliant hearing (not simply notice of the right to file

a motion25).

B. No licenses should be suspended unless the obligor received

notice, via certified mail, RRR, that his/her license suspension

was to be suspended on a specific date as a method of coercing

compliance and that the notice such as (the forms developed by

the DFD and annexed hereto as Exhibit O) was otherwise in

compliance with N.J.S.A. 2A:17-56.41(3).26

C. No license should be suspended absent a finding having been

made at a hearing in the preceding 90 days that an obligor has

the current ability to comply.27

D. No licenses should be suspended absent (1) the obligor having

received notice of his or her right to counsel prior to the

suspension of a license, and (2) counsel was appointed for any

indigent obligor.28

25 See Point II(3)(B).26 See Point II. This point of relief would be rendered moot since this is the general suspension process outlined in N.J.S.A. 2A:17-56.41.27 See Point II(D) below.28 See Point IV.

E. No licenses should be suspended unless reasonable efforts are

made to ensure that an obligor is literate and has received any

notices and/or information related to the suspension process in a

language the obligor understands.29

F. Obligors must receive Title-IV / USSO orders that accurately

reflect whether a bench warrant status is active (i.e., if said

status is active, Box 18 on the current USSO form must be checked

and the number of missed payments that would trigger a warrant

must be indicated).30

2. Chief Administrator Martinez and The New Jersey Motor Vehicle

Commission:

A. Should be enjoined from imposing a license suspension

effective less than 20 days after the date of a notice is mailed

informing an obligor of the impending suspension.31

B. Should be ordered to rescind, without fee, the outstanding

suspension of all obligors whose Constitutional or statutory

rights as set forth herein were violated.32

3. Acting Attorney General Hoffman:

A. Acting Attorney General Hoffman should be enjoined from

29 See point III.30 See point III.31 See Point III. This issue would also become moot if licenses are not longer suspended via warrants.32 See Point VI.

enforcing the provisions of N.J.S.A. 2A:17-56.43 that deprive a

CSHO or court from making an individuated determination of what

amount an obligor should be required to pay toward arrears to

retain or restore his or her license. A court should be permitted

to use its discretion to determine an amount to be paid toward

arrears to avoid a suspension consistent with the obligor's

ability to pay and all the facts of a case.33

4. Acting Attorney General Hoffman and/or Chief Administrator Martinez:

A. Shall refund restoration fees paid by obligors whose licenses

were automatically suspended since the filing of the complaint on

May 1, 2015.

33 See Point III(G)(1) and III(G)(2) below.

Point II: THE LICENSE SUSPENSION PROCEDURES OF THE NEW JERSEY CHILD SUPPORT IMPROVEMENT ACT ARE UNCONSTITUTIONAL.

A. The automatic license suspension

procedures violate procedural due

process.

The sole purpose of a "bring to court" warrant is to compel

an obligor's expedited appearance (Exhibit A, pages 6-7).

Assuming an obligor is given adequate notice that a warrant is

going to be issued, there is a reasonably recent determination of

ability to pay, and the default is willful, the issuance of a

"bring to court" warrant compelling an obligor's expedited

appearance to explain a failure to comply, is constitutional.

There is no harm to a private interest in simply compelling a

litigant to appear to provide a reason for noncompliance and to

face the possible repercussions if this noncompliance is found to

be willful. There is no "taking" involved. There is no

consequence imposed beyond requiring an obligor's appearance.

However, when the issuance of such a warrant automatically

carries with it the consequence of magnitude of the suspension of

a driver's license, the low standard that may pass muster to

simply issue a "bring to court" warrant does not suffice and

plaintiffs' right to procedural due process is therefore

violated.

As a matter of federal constitutional law, it is well

settled that a driver's license may not be suspended or revoked

"without that procedural due process required by the Fourteenth

Amendment." Dixon v. Love, 431 U.S. 105, 112, 97 S.Ct. 1723, 52

L.Ed.2d 172 (1977) (quoting Bell v. Burson, 402 U.S. 535, 539, 91

S.Ct. 1586, 29 L.Ed.2d 90 (1971)). Though the procedures may vary

according to the interest at stake, "[t ]he fundamental

requirement of due process is the opportunity to be heard `at a

meaningful time and in a meaningful manner.'" Mathews v.

Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)

(quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14

L.Ed.2d 62 (1965)).

To determine whether existing procedures are adequate, a

court must consider the factors set out in the seminal case of

Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d

18 (1976):

1. Plaintiffs have a protectable interest in their driver's

licenses.

The first Mathews factor requires identification of the

nature and weight of the private interest affected by the

official action challenged. The private interest in this case is

in the continued use and possession of a driver's license, with

all that implies.

The Supreme Court of New Jersey has been more protective of

a citizen's due process interest in her license than the U.S.

Supreme Court. In State v. Moran, 202 N.J. 311, 325-26 (2010),

our Supreme Court noted:

However a license to drive is denominated, either

as a right or a privilege, a license suspension

may not be imposed arbitrarily . . . . The

suspension of a driver's license is a consequence

of magnitude because a license to drive in this

State "is nearly a necessity," as it is the

primary means that most people use to travel to

work and carry out life's daily chores . . . No

one would suggest that a court can take away one's

driving privileges on a whim or capriciously. . .

The need for standards governing license

suspensions touches on core constitutional

principles. Id. at 325-326.

The interest at stake is a substantial one, mandating that

due process be provided.

2. The risk of erroneous deprivation under existing procedures

is unconstitutionally high.

The second Mathews factor is the risk of erroneous

deprivation of the interest at stake through the procedures used

and the probable value, if any, of additional or substitute

safeguards. 424 U.S. at 335.

As described above, an obligor who fails to pay child

support is statistically very likely to be indigent and thus

unable rather than unwilling to be able to pay support. Those

statistics back the opinion Mr. Epting expressed during his

deposition that 80% of those appearing before him for enforcement

hearings were legitimately unable to pay rather than being

capable but unwilling (Exhibit S, 67:24-68:6).

Defendants argued an obligor has already had a fair hearing

by the time a warrant is issued. This is incorrect. First, the

decision to place an obligor on warrant status at an ELR hearing

does not require a finding of an ability to pay, but only that a

CSHO "believes that bringing an obligor before the court on an

expedited basis will be necessary" (Exhibit A, Directive #15-08

at page 6) As a result, 80% of those who appear are placed on

warrant status (Exhibit P).34 Because the threshold for issuing a warrant is low, the risk is

high that an automatic suspension resulting from a violation of a

bench warrant status order will be erroneous.

Second, as the time between an ELR hearing and an automatic

suspension increases, so does the likelihood that the obligor has

undergone a change in circumstances. The failure of Directive

#15-08 to provide for an expiration time period for "two week

warrant status" provisions, meaning that if the obligor ever

develops arrears - weeks, months, or even years later - she is

subject to an immediate warrant and resulting automatic license

suspension without any contemporaneous hearing regarding ability

to pay.

Named plaintiff Andreana Kavadas was subjected to a warrant,

and therefore automatically had her license suspended, as

recently as March of 2015 (Exhibit J 76-77) based on an order

placing her on bench warrant status entered eight years earlier

34 When asked what due process defects in the system he considered most serious, Mr. Epting's first stated concern was the overuse of bench warrant status (Exhibit S, 69:5-70:8).

in 2007 (Exhibit J 32-33).35 To the contrary, the order placing

Andreana on bench warrant status in August 2007 stated "def on

TANF in Cumberland ... seeking employment and has no other source

of income.. strict probation is in effect so long as TANF is

closed." The most recent order to reflect bench warrant status

was entered in June, 2015 (J 82-83. This order was entered by

default when Andreana (who was homeless) did not appear (J 83).

Without her there, it would not have been possible to make a

finding as to her ability to pay.

She received a Notice of Intent to Issue Bench Warrant issued

November 24, 2015, remains the sole caretaker for two very young

children and perpetually in arrears, and may again be subject to

a warrant and license suspension based on the same 2007

determination. A warrant for LaQuay Dansby was entered in July

2010 based on an order entered 29 months earlier in February

2008, and for Paulo in April 2014, two years after he was

approved for means-tested SSI benefits. Like most obligors in

this situation, all of them are unable, not unwilling, to pay

support.36

35 Even at this long-ago hearing, there was no finding of an ability to pay, as this is not that standard to place an obligor on bench warrant status.36 The second point Mr. Epting asserted is required to bring the system into compliance with the mandate of due process is that bench warrant status orders must expire after a period of time. A finding that an obligor has the ability to pay at the time of an ELR hearing (assuming such a finding is made) cannot establish this as a permanent fact for the (potentially 22 year) duration of a case (Exhibit S, 73:2-73:21). Mr. Epting suggested

All the named plaintiffs were subjected to the entry of a

"two week warrant status" order. Andreana Kavadas, LaQuay Dansby,

and Paulo Arede were thereafter subjected to a warrant and

resulting license suspension. At no point in the entire process

were any of them afforded a hearing to consider the statutory

factors nor constitutionally mandated analysis as to whether they

should be deprived of a license.

In light of the weight of the interest involved, suspensions

cannot be imposed without a contemporaneous finding that the

coercive effect of doing so outweighs the probable devastating

effect of a license suspension. Yet as explained above, 99.429%

of obligors receive essentially no due process and do not receive

a hearing "at a meaningful time and in a meaningful manner.'" The

lack of a hearing at a meaningful time (contemporaneously to the

proposed suspension) and in a meaningful manner deprives obligors

of the opportunity to present the primary expected defense - that

he or she was unable, not unwilling to make the payment at issue

at the time that the warrant is entered and their license

suspended. In sum, the risk of erroneous deprivation is far too

high to pass constitutional muster.

3. There would be no additional burden on the government if

adequate due process were afforded obligors.

that a six month "sunset" provision on warrant status would be constitutionally adequete (Exhibit S, 73:13-73:20).

The final prong of Mathews is "the Government's interest,

including the function involved and the fiscal and administrative

burdens that the additional or substitute procedural requirement

would entail" must be considered. Mathews, 424 U.S. at 335, 96

S.Ct. 893 (1976), 47 L.Ed.2d 18 (1976).

There would be no additional procedural burden in providing

the constitutionally required due process. There would be no

change in the number of hearings. The only difference is that

obligors responding to a "bring to court" warrant would not be

walking into an enforcement hearing with a license that was

already suspended, and they would only walk out with a suspended

license if there was evidence that doing so was appropriate after

considering all the equities and statutory factors.

Additionally, automatic suspension upon the entry of a

warrant impedes rather than furthers the stated legislative

purpose of collect[ing ] more child support. Not only has the

Division of Family Development acknowledged that there is no

proof that license suspensions have a positive coercive effect on

collections (Exhibit E), but there is significant evidence, as

described above, that these suspensions cause great economic

hardship and impede the ability of obligors to pay: 42 percent

facing suspension experienced job loss, and of those 45 percent

of those with job loss could not find other work while 88 percent

of those finding other work experienced a decrease in income

(Exhibit C).

Defendants cannot argue that there is any government

interest that serves to justify the deprivation of obligors

interest in a license when its indisputable net effect is so

destructive to the ability of an obligor to contribute toward his

child's support. As suspensions result in collections of only

$259 each (less than one-half of one percent of all collections),

there is no justification for the economic damage being done to

over 20,000 obligors each year via the current suspension process

and the granting of the relief sought by plaintiffs would further

the interest in collecting support.

In past opposition, defendants have asserted that because a

suspension is of a brief duration, post-deprivation process can

substitute for providing adequete hearings. Initially, in cases

where the United States Supreme Court has found post-deprivation

process a sufficient substitute for pre-deprivation process in

the context of license suspension, there has been a state

interest involved in proceeding immediately rather than first

providing a hearing (e.g., keeping dangerous or drunken drivers

off the road). Second, in the context of license suspension, the

limited instances where pre-deprivation process was permitted

involved no material fact question (e.g., a calculation of how

many driving points were accumulated, or the sworn testimony of

an officer and witness that a drunk driver refused to take a

breathalyzer test). Here, the purpose of a suspension is to

coerce an able but unwilling obligor to pay support and,

therefore, a wrongful deprivation works against the state's

interest as much as the obligors. Finally, because a license

restoration requires the payment of a non-waivable $100 fee,37

there is no guarantee that a suspension will be of a brief

duration; it could well become a permanent one.

A weighing of the Mathews factors demonstrates that, via

their failure to be afforded an individuated hearing wherein a

specific finding is made that a license suspension will have a

coercive effect, the named plaintiffs and the class of similarly

situated persons they represent have been denied procedural due

process. This court should act to address this violation by

granting the relief sought below.

B. Notifying obligors of their right to file a

modification motion does not satisfy

defendants' burden to provide a Mathews-

compliant hearing.

Defendants have previously argued that the repeated notices

given to obligors informing him or her of the right to file a

modification motion satisfies its obligation to provide a

hearing. This is incorrect.

Filing a motion results in a hearing being ordered only if

the movant demonstrates both a material fact question and that a

hearing is required to address it. Harrington v. Harrington, 281

37 While some judges have in effect waived the $100 restoration fee by vacating the original suspension order pursuant to R. 4:50-1, this is an anomaly. N.J.S.A. 2A:17-56.45 is clear that "[t ]he obligor shall pay all fees associated with the revocation, suspension or reinstatement of a license..."

N.J.Super. 39, 48 (App.Div.), certif. denied, 142 N.J. 455

(1995); Barblock v. Barblock, 383 N.J.Super. 114 (App.Div.

2006), Pfeiffer v. Ilson, 318 N.J.Super. 13 (App.Div.1999). The

right to file a motion is not akin to the right to ask that a

fact be proven in an adversarial hearing before a right is taken.

Moreover, filing a motion involves the payment of a $50

filing fee and is a process that requires a level of literacy and

sophistication that most defaulted obligors lack, especially

without counsel.

Furthermore, the modification of an obligation is a separate

issue from its enforcement. While an enforcement action can be

dismissed by a demonstration that the obligor lacks a present

ability to pay, a modification hearing is governed by a different

analysis that may not provide relief. For instance, if an obligor

subject to two week warrant status who has no savings loses her

job and immediately applies for a support adjustment, the motion

would not be granted as obtaining a modification requires a

showing of a substantial and permanent change in circumstances.

Lepis v. Lepis, 83 N.J. 139 (1980).

By contrast, for enforcement, the court must find that the

obligor possessed (in the past tense) the ability to comply and

any failure to do so was therefore willful, Schochet v. Schochet,

435 N.J.Super. 542 (App.Div. 2014), and second, that the obligor

has the ability (in the current tense) to comply. Pasqua v.

Council, 186 N.J. 127 (2006). Whether an obligor has established

a right to a modification of support thus does not address

whether the deprivation of a protected right would be erroneous.

A motion is a written submission to a court. Aside from a

litigant being required to make a threshold showing to obtain a

hearing, there is no guarantee that a litigant will be provided

with the opportunity to stand before a court and engage even in

oral argument, much less be afforded an adversarial hearing.

Palombi v. Palombi, 414 N.J. Super. 274 (App.Div. 2010) (Family

Part Judges now have wide discretion as to when oral argument

will be permitted). In Goldberg v. Kelly, 397 U.S. 254 (1970),

the United State Supreme Court made clear that where a protected

interest is at stake, limiting a litigant seeking written

submissions is an inadequate substitute for oral presentation

because written submissions do not provide an effective means for

communicating one's case to a decision maker. Written submissions

are generally considered as an unrealistic option, as many

litigants in poverty lack the "educational attainment necessary

to write effectively" and cannot afford professional assistance.

In addition, such submissions do not provide the "flexibility of

oral presentations" or "permit the recipient to mold his argument

to the issues the decision maker appears to regard as important."

Id. at 397 U.S. at 269.

The experience of the plaintiffs makes plain that this

distinction is not an academic one. Proceeding pro se, Andreana

Kavadas filed in 2014 to reduce her support obligation and to

consolidate her arrears-only case and active case into one county

(as should have occurred automatically38). Andreana explained

38 Although Andreana remains unrepresented in her Family Part matters, counsel contacted probation after reviewing her file in

"...I would like the stipulation that I will be arrested if

payments are missed lifted. I have a breastfeeding infant and 3

year old in my care. I would like the venue for enforcement to be

Cumberland County..." (Exhibit J 13). The court denied that

application, holding "Her application for modification of the

current order is denied without prejudice as the current order of

$40/week is minimal. Obligor provided documentation that she

currently receives food stamps, but does not receive any TANF.

She provided no proof of her efforts to find employment. Prior

order of $40/week plus $25/week towards arrears is to

continue...." Multiple modification motions were also filed by

Paulo, Alisha and LaQuay and were also denied. Whether those

denials were correct or erroneous is not the issue. What is

relevant is that providing obligors with notice as to the

existence of the motion process does not provide nor lead to the

Mathews-compliant hearing that obligors are entitled to before a

license is suspended.

September, 2015 to inquire why she would have three open probation cases in three separate counties, rather than enforcement occurring in her county of residence, and pointing out the problems it has caused to have three different probation departments enforcing orders without any apparent awareness of what others have been doing. Case notes with her file (J 84-85) indicate a probation supervisor reviewed the file on 10/5/2015 and notated "I'm not sure what happened." A warrant issued in June was administratively vacated and venue for all cases is being consolidated in Cumberland County. Had a Family Law attorney ever viewed this file, this issue would have been addressed years ago.

Providing an obligor with "repeated notices" of the right to

file a motion for modification seeking a hearing does not satisfy

procedural due process.

C. Procedural Due Process requires that obligors

must be notified of a potential suspension via

at least certified mail.

N.J.S.A. 2A:17-56.41 requires that the process to suspend a

license begin with the obligor being notified via certified mail

that his license will be suspended unless a payment is made or a

hearing requested. This level of service is mandated by

N.J.S.A. 2A:17-56.43 and by the requirement set forth in the

PRWORA that obligors receive "appropriate notice" before a

license suspension is imposed. See 42 U.S.C. § 666(a)(16).

Ensuring that notice actually reaches an obligor facing this

consequence of magnitude is a fundamental aspect of due process.

While what constitutes diligent efforts has no fixed standard,

Modan v. Modan, 327 N.J.Super. 44, 48 (App. Div. 2000), it "must

meet the constitutional requirements of due process." O'Connor v.

Altus, 67 N.J. 106, 126-27 (1975). Namely, the "elementary and

fundamental requirement of due process" is that there be "notice

reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them

an opportunity to present their objections." Id. at 126. (quoting

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950));

See also Dusenbery v. United States, 534 U.S. 161, 168.

Both LaQuay and Andreana claimed that they never received

notices as to hearings or warrant threats. LaQuay testified that,

even though he reliably receives mail at his mother's home (his

listed address), he has not received many of the notice that were

produced in discovery and claimed to have been sent to him

(Exhibit V, 42:13-42:16). Andreana made the same claim, pointing

out that homeless shelters do not permit residents to use the

shelter's address to receive mail (Exhibit T, 16:14-18:17).

N.J.S.A. 2A:17-56.41(b) requires that an obligor be advised

of an enforcement action by "delivery of written notice." It does

not specify whether this notice must be via certified mail. If an

obligor does not respond and no proof is available that the party

received the notice, "the Probation Division shall document to

the court that it has made a diligent effort to locate the party

by making inquiries that may include, but are not limited to: the

United States Postal Service, the Division of Motor Vehicles in

the Department of Transportation, the Division of Taxation in the

Department of the Treasury and the Departments of Labor and

Corrections."

If a notice is sent via regular mail and is not received due

to an error with the postal service, the inquiries probation is

required to make would not reveal the problem. If the obligor no

longer lives at that address, but does not yet have a new

address, none of these searches would reveal the problem.

The Supreme Court has addressed the issue of certified mail

and its adequacy when the issue is foreclosure on a property,

holding that "[P ]rocedural due process applies where state law

does not entirely extinguish the taxpayers' property interest

until foreclosure." Twp. of Montville v. Block 69 Lot 10, 74 N.J.

1, 8 (1977). Here, although the interest at stake (loss of

license and arrest for failing to appear) is equally weighty,

obligors are not even provided with the minimum notice

requirements the court has found barely adequate when the issue

is a loss of property.

The court should require that, where the failure to respond

to a notice will result in a loss of a driver's license or the

arrest of an obligor, notice via certified mail is the minimum

acceptable process. D. Bench warrant status orders must be

entered only after a finding of an ability to pay at the time of entry and must contain an expiration date.

The reliability of a determination that an obligor has the

ability to pay and that a warrant status order is thus justified

dissipates over time. To ensure they are serving a coercive goal,

warrant status orders must be based on an explicit finding of an

ability to pay, and must contain a sunset provision. The concept

that writs expire after a set period is embodied in other area of

the court rules and statutes. See N.J.S.A. 2A:18-27, R. 4:59-1.

Support orders, especially, are subject to modification after a

period of time has elapsed. See Lepis v. Lepis, 83 N.J. 139

(1980). All the named plaintiffs herein were subject to bench

warrant status for years, and their initial implementation did

not require a finding of an ability to pay. This process raises

the risk of an erroneous deprivation of a license to an

unacceptably high level and is fundamentally unfair.

Bench warrant status orders should be required to expire

after a period of 90 days. Cf. N.J.S.A. 2A:34-23 (providing a 90

days period of changed circumstances before an obligor may move

to modify a support obligation). After a period of 90 days has

expired, a summons rather than a warrant should issue upon

default and a proper ability to comply hearing conducted.

E. The automatic license suspension procedures violate

substantive due process.

A driver's interest in her license is a substantial one.

Plaintiffs do not allege a suspect class or infringement on a

fundamental right, which would require the state establish that a

compelling state interest supports the classification and that no

less restrictive alternative is available. Minn. v. Clover Leaf

Creamery Co., 449 U.S. 456, 461-66, 101 S.Ct. 715, 722-25, 66

L.Ed.2d 659, 667-69 (1981).

However, the Supreme Court of New Jersey has recognized a

middle-tier, or intermediate level, of scrutiny. Right to Choose

v. Byrne, 91 N.J. 287, 309 n.7 (1982); U.S.A. Chamber of Commerce

v. N.J., 89 N.J. 131, 157-58 (1982). Under this standard, where a

substantial right is affected indirectly or a semi-suspect class

is involved, the state interest must "serve important

governmental objectives and must be substantially related to the

achievement of those objectives." Craig v. Boren, 429 U.S. 190,

197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397, 407 (1976).

While the state has accurately pointed out that an obligor's

interest in a driver's license has never been found to constitute

a fundamental right, neither is it of so little weight that only

standard rational basis review is appropriate. In light of the

weight our Supreme Court has attached to a citizen's interest in

a license, it is respectfully submitted that this court apply

intermediate scrutiny to the issue of whether the current

suspension process violates plaintiffs' substantive due process

rights.

As the State has asserted the issue extensively in all its

submissions and during oral argument, it bears repeating that

there is no substantive due process challenge to the basic

concept of suspending the license of a child support obligor.

It is only when, as here, the process is arbitrary and

irrational that substantive due process is implicated. As

described above, the automatic license suspension process is

counterproductive and ineffective in achieving its goal of

coercing the payment of support. By not holding a contemporaneous

hearing on ability to pay, the scheme increases the likelihood

that obligors will be unable to pay because the State is removing

a license they need to work or seek employment.

There are six published cases that address substantive due

process challenges to the suspension of licenses as a tool to

coerce compliance with support orders. Each of these cases

recognizes that while the loss of a license does indeed infringe

on an obligor's constitutional rights, the state's interest in

enforcing support, when this interest is in fact being furthered,

outweighs this interest.

Amunrud v. Bd. of Appeals , 158 Wash. 2d 208, 143 P.3d 571

(2006), which is relied on by the State, is easily

distinguishable from the process at issue herein. In Amunrud, the

obligor was held in contempt several times and was then sent a

notice that his license would be suspended. Amunrud, 158 Wash. 2d

at 214. After granting a hearing and permitting him three levels

of administrative and appellate review before the suspension was

actually imposed, the State followed through on its threat and

suspended his license. Id. at 213-214. Mr. Amunrud appealed,

claiming that the infringement on his right to a license violated

his substantive due process rights. Id. at 215. The Supreme Court

of Washington, En Banc, rejected this contention, relying on a

rational basis review and commenting that it is reasonable for

the legislature to believe that Washington's license suspension

scheme will provide a powerful incentive to those in arrears in

their child support payments to come into compliance. Id. at 224.

The situation is New Jersey is distinguishable from Amunrud

in numerous ways. First, unlike in Amunrud, where the court

emphasized that it needed only find any rational reason to

support the law, New Jersey affords driver's licenses more weight

requiring a higher level of scrutiny. Second, even under a

rational basis analysis, the New Jersey collection statistics

cited earlier refute any notion that license suspension has

served as a 'powerful incentive to obligors. The funds paid as

the result of the execution of an arrest warrant are paid so an

obligor can obtain release from jail. The idea that arrested

obligors are somehow more motivated to obtain their release from

jail because their license had been automatically suspended is

absurd. This is why the Division of Family Development was

compelled to eventually admit that there are no documents

supporting the representation that automatic suspensions from any

incentive. Finally, the scheme evaluated in Amunrud was license

suspension pursuant to a hearing, to which the plaintiffs in the

instant case do not object. Rather, it is the automatic nature of

the license suspension process in New Jersey that is irrational

and counterproductive.

In State v. Beans, 965 P.2d 725, 727 (Alaska 1998), the

court, finding that the selection of a nonfunctional approach

would not be rational, focused, quite reasonably, on whether the

system the state chose to use was actually working.

As the Beans court reasoned, [t ]he threat of driver's

license suspension is a particularly effective enforcement tool

against those obligors who resist income withholding . . .

[which ] Beans has not disproved.' Beans, 965 P.2d at 727.

Further, the Beans court reasoned that "[w ]hether there is a

direct relationship between Beans's underlying conduct and the

potential sanction has little or nothing to do with whether the

sanction is particularly effective against a certain class of

delinquent obligors. It is this particular effectiveness that

makes the sanction of losing a driver's license rational." Id.

Again, as explained earlier and even putting aside whether

it meets the higher standard in New Jersey, the State's system is

not effective and therefore is not rational.

The other substantive due process cases relied on by the

State applied a rational basis review, not an elevated analysis,

and did not evaluate an automatic suspension scheme, and so are

distinguishable on those bases. Although in every substantive due

process challenge brought, there was evidence that the state's

suspension program was having a positive impact on coercing the

payment of support, no state has a scheme similar to New Jersey's

that suspends licenses "without further notice," automatically,

or without a contemporaneous hearing. See NATIONAL CONFERENCE OF

STATE LEGISLATURES,

http://www.ncsl.org/research/human-services/license-restrictions-

for-failure-to-pay-child-support.aspx (reviewing and summarizing

license suspension law in all 50 states and noting that only New

Jersey suspends licenses automatically (visited March 31,

2015)).39

Moreover, the plaintiffs in these cases focused their

challenges on the very idea of suspending licenses for failure to

pay child support, which again the plaintiffs in the instant case

do not challenge. Rather, plaintiffs argue that where the

suspension is carried out in a way that is irrational and

counterproductive - as is the case where it is automatic -

substantive due process is infringed.

39 Although New Jersey ranks third highest in the nation in both median household income and per capita income, and (depending on source) either lowest or second to lowest in poverty rate, it ranks 13th in overall collection rate of child support. See Exhibit Y.

F. The AOC exceeded its constitutional authority via the

provision of Directive #15-08 permitting the issuance of a

warrant "without further notice" when the result of a warrant is

the suspension of an obligor's license.

The detailed legislative scheme under N.J.S.A. 2A:17-56.43

for a license suspension requires careful notice, a hearing, and

a weighing of a driver's interest in her license before it is

suspended. These are substantive provisions, not matters of

practice and procedure and thus within the exclusive realm of the

legislature.

A Directive from the AOC, in contrast to legislation, is not

subject to any type of public process. The promulgation of a

Directive is not even subject to the internal process involved in

the enactment of a court Rule. As noted in the commentary to

R. 1:1-1 of the Rules Governing the Courts of the State of New

Jersey, Directives should thus be "limited to internal court

matters that do not have a capacity generally to affect practice

and procedure vis-a-vis the bar and pro se litigants ... [since ]

there is no opportunity for the bench and bar to be heard before

they take effect." See Pressler, Current N.J. Court Rules, at 31

(2016 Edition).

As noted above, Directive #15-08 permits the issuance of a

warrant upon nothing more than the existence of any arrears or a

default on a bench warrant status order, with no arrears

threshold, no minimum amount of time that arrears need to exist,

and no requirement of a reasonably recent finding as to an

obligor's ability to comply (Exhibit A). The issuance of a

warrant acts to automatically suspend a license.

This net effect of this process - or lack thereof - is to

override the legislative scheme for notice and an opportunity to

be heard before a suspension is imposed, and constitutes a direct

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 reasonably contemporaneous notice and only as the

result of a hearing wherein its coercive effect is explored. A

Directive that permits the issuance of a warrant upon nothing

more than an unexplained default on a two week warrant status

order, where such issuance will automatically result in the

suspension of an obligors's license "without additional notice,"

is an intrusion into substantive law, the exclusive providence of

the legislature.

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), 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 a suspension

should not be imposed as casually as Directive #15-08 permits.

The Legislature entrusted to the AOC the responsibility for

determining when a warrant as opposed to a summons should be

issue, but did not authorize it to disregard all the protections

built into the statute. Rather than promulgating a Directive that

adheres to the clearly expressed legislative intent that a

suspension be ordered only after reasonably contemporaneous

notice and a hearing "at a meaningful time" to establish that

this action would be coercive, Directive #15-08 establishes a

process whereby 80% of obligors are placed on warrant status

based on nothing more than a CSHO believing that bringing him or

her before the court on an expedited basis will be necessary,

followed by a failure to pay which may occur years later (Exhibit

A at page 6).

To the extent it explains itself at all, Directive #15-08

claims its legal authority "is in R. 1:10-3 and R. 5:4-1(c)"

(Exhibit A at 6). While Rule 1:10-3 does review and the affirm

the ability of a court to enforce its orders, it permits rights

to be enforced "by application in the action", not via an ex-

parte arrest warrant and resulting imposition of a license

suspension without notice or an opportunity to be heard.

Rule 5:4-1(c) states that a warrant may issue "... where

provided by rule or otherwise appropriate to compel appearance."

The commentary to the rule notes that subpart (c) is intended to

apply in "criminal and quasi-criminal family actions." See

Pressler, Current N.J. Court Rules, commentary to R. 5:4-1(c), at

2222 (2016 Edition). A default on a support order cannot be

considered a "criminal [or ] quasi-criminal family action." It

could be (as recognized by N.J.S.A. 2A:17-56.43(5)(e)) the result

of disability, a job loss or other justified situation beyond the

control of the obligor. The second comment to R. 5:4-1(c) refers

to the "application provisions of R. 3:3." Rule 3:3-1(a) in turn

requires that probable cause be found prior to the issuance of a

warrant. Rule 3:3-1(c) specifically requires a summons rather

than a warrant should issue unless certain circumstances (none of

which apply to non-payment) apply. See Pressler, Current N.J.

Court Rules, at 828-829 (2016 Edition).

Nothing in our court rules, statutes, Constitution nor

concepts of fundamental fairness imply that R. 1:10-3 or R. 5:4-

1(c) were intended to provide a shortcut around the basic

constitutional requirement of a notice and an opportunity to be

heard before the consequence of magnitude of a license suspension

is imposed and none serve to justify the AOC exceeding its

Constitutional bounds via its intrusion into the realm of the

legislature via the promulgation of a Directive that permits the

entry of a no-notice warrant (and, therefore a suspension) upon a

mere default.

G. The provisions of N.J.S.A. 2A:17-56.43 requiring a

set percentage of arrears be paid to avoid suspension and

prohibiting a repayment plan from extending beyond the child's

18th birthday are irrational and violative of plaintiffs'

substantive due process and equal protection rights as well as an

invalid intrusion by the legislature into the judicial realm.

To obtain injunctive relief, a plaintiff in a civil rights

action need show that they are under threat of the harm at issue.

All the named plaintiffs remain in arrears and thus subject to

enforcement actions. All of them have suffered a constitutional

injury via the application of the current statute. Although

standing is not a requirement in State court, the Third Circuit

pointed out in Anthony v. Council, 316 F.3d 412, 421 (3d

Cir.2003) that even under the heightened standard imposed by the

standing requirement, an allegation of a violation of

constitutional rights as part of the support enforcement

mechanisms "is not conjectural or hypothetical" Id. at 417. When

brought to the court's attention, a statute that stands in

violation of the constitution, of the separation of the proper

realm of the legislature vis-a-vis the court, of a manifestly

clear overall legislative intent, and of fundamental fairness

should not be ignored. Finally, as argued above, declaratory

relief is appropriate when, as here, a party seeks to end

uncertainty about legal rights and duties in controversies which

have not yet reached the stage at which the parties may seek a

coercive remedy. Union County Bd. of Chosen Freeholders v. Union

County Park Comm'n, 41 N.J. 333, 337 (1964). The court can

and should address this defect in the CSIA.

1. The challenged provisions of N.J.S.A. 2A:17-56.43 are

irrational and violative of plaintiffs' substantive due process

and equal protection rights.

As explored above, intermediate scrutiny is appropriate here

in light of the weight our Supreme Court has attached to a

citizen's interest in a license. The provisions of N.J.S.A.

2A:17-56.43 making the avoidance of a license suspension

contingent on meeting financial conditions without considering

the ability of an obligor to meet them is a violation of

substantive due process.

Even if an obligor shows that a license suspension would

impose a significant hardship pursuant to N.J.S.A. 2A:17-

56.43(e), a suspension can be avoided only if the "obligor

[pays ] 25% of the past-due child support amount within three

working days of the hearing." Additionally, "[i ]n no case shall

a payment plan extend beyond the date the dependent child reaches

the age of 18."

The selection of the age of 18 as a cut-off date is

arbitrary as New Jersey does not emancipate children at 18, but

upon their "moving beyond the sphere of parental influence",

permitting adult children who are full-time students or disabled

to continue receiving support. Newburgh v. Arrigo, 88 N.J. 529

(1982), Filippone v. Lee, 304 N.J.Super. 301, 308 (App. Div.

1997).

A system that is supposed to be coercive when necessary and

has the socially critical goal of ensuring children receive

support should not engage in self-defeating measures that

virtually guarantee an obligor cannot have a license reinstated

so as to bring herself into compliance with an order. If the

issue did not involve rights as important as a driver's license

and a child's basic right to support, granting relief might be

said to require a prohibited second-guessing of the wisdom (or

lack thereof) of the legislature. Greenberg v. Kimmelman, 99 N.J.

552, 564 (1985). However, when, as here, the infringement on an

obligor's right to a license -- and a child's right to be

supported -- is based on arbitrarily selected condition without

reference to whether there is evidence it would be coercive, it

is a textbook example of a denial of substantive due process.

Additionally, these provisions of the statute are a denial

of equal protection in that only those who are not in poverty can

obtain relief otherwise available under the statute, and there is

no rational basis to support this distinction.

It is respectfully submitted that these provisions survive

no level of scrutiny. The Attorney General should be enjoined

from its further enforcement.

2. The challenged provisions of N.J.S.A. 2A:17-56.43 constitute

an invalid intrusion by the legislature into the judicial

realm.

In Perlmutter v. DeRowe, 58 N.J. 5 (1971), the Supreme Court

was asked to consider whether the legislature had exceeded its

bounds via a statutory enactment requiring that the amount of

bail to be posted when a capias ad respondendum writ was executed

should be fixed at double the amount of the judgment at issue.

Citing multiple analogous circumstances, the Supreme Court

unequivocally found that this statute constituted an

impermissible intrusion by the legislature into the judicial

realm:

We conceive that the amount of bail falls within the

judicial rather than the legislative realm as a matter

of practice and procedure, pursuant to CONST.1947, ART.

VI, § II, ¶ 3. Analogies are found in the matter of a

bond for stay of judgment on appeal, now covered by R.

2:9-5 and 2:9-6 and formerly the subject of statute,

N.J.S.A. 2:27-369 to 375.2, and for release of attached

property, now encompassed by R. 4:60-13 and previously

prescribed by statute, N.J.S.A. 2:42-37 to 41. The

amount of bail should be determined upon a

consideration of all the circumstances, much as in a

criminal case. Upon the same thesis, the bond furnished

need not be in the now anachronistic sum of double the

amount of the bail fixed, again despite the provision

of N.J.S.A. 2A:15-43.

Likewise, the legislative dictate contained in N.J.S.A.

2A:17-56.43 deprives judges and hearing officers of discretion as

to the amount of an arrears payment necessary to retain a

driver's license when an obligor has shown its suspension would

cause a hardship.

Decisions of this nature are the very heart of why our

system uses judges and does not simply relegate substantive

decisions to bureaucrats. After conducting a hearing, a judge

should be able to insist and obligor pay more than 25% if the

evidence and a judge's feel of the case make that appropriate. A

judge should also be able to determine when it is appropriate to

set a payment lower, perhaps recognizing in some cases that an

obligor with a license will be able to obtain or retain

employment and thus provide more support in the long run. While

determining an appropriate amount of bail or determining an

appropriate arrears payment may address different factors, they

are the same essential function: placing the public trust in the

hands of a decision maker who can weigh the evidence and do

justice.

The tasks of setting bail and setting arrears cannot be

meaningfully distinguished. They "fall within the judicial rather

than the legislative realm as a matter of practice and

procedure." See, New Jersey Constitution, ARTICLE VI, § 2, ¶ 3,

Winberry v. Salisbury, 5 N.J. 240, 245-46, cert. denied, 340 U.S.

877 (1950).

As it represents an impermissible intrusion by the

legislature into the judicial realm, this court should hold these

provisions of N.J.S.A. 2A:17-56.43 to be invalid and enjoin their

further enforcement.

Point III: THE SUSPENSION OF LICENSES EFFECTIVE AS OF THE DATE OF THE ISSUANCE OF A "BRING TO COURT" WARRANT VIOLATES PLAINTIFFS' STATUTORY RIGHTS AS ESTABLISHED BY N.J.S.A. 2A:17-56.44.

N.J.S.A. 2A:17-56.44 requires, in relevant part:

The Probation Division shall provide the licensing

authority with a copy of the order requiring the

suspension or revocation of a license. Upon 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 or revocation, which shall be 20 days after

the postmark of the notice.. (emphasis added).

The Motor Vehicle Commission has not complied with this

requirement. Instead, it suspends licenses effective the date of

the court's order (Exhibit J 86-99, M 94-96, L 7 at ¶4) and

informs the obligor that his or her license was suspended days

prior to the notice being issued. As Directive #15-08 provides

that a support-related warrant is to issue without notice

(Exhibit A 3-4), obligors are notified only after the fact that

their license has been suspended.

In past opposition, defendants have asserted 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 have also averred that the statute does not apply

when a license is suspended as the result of the issuance of a

warrant rather than a direct court order, based on the theory

that a warrant is fundamentally different from an order. The

underlying premise of this argument - that a warrant and an order

are legally distinguishable - is erroneous. A warrant is an

order.40

40 If defendants are accurate in the assertion that a warrant is not an order, defendant MVC would be open to claims for damages that might well pierce its limited immunity. N.J.S.A. 2A:17-56.44(6)(a) specifically provides that "[n ]o liability shall be imposed on a licensing authority for suspending or revoking a license if the action is in response to a court 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 writing 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. 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...'

Blacks Law Dictionary (4th ed. 1951) p. 1756. 3. [A ]n order by

which the drawer authorizes one person to pay a particular sum of

money." 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)

issued in accordance with [the CSIA ]." If a warrant is not an order, MVC could be liable for damages caused by all the suspensions imposed in violation of obligors' constitutional and statutory rights that occurred within the statute of limitations.

(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).

Additionally, every warrant originates with an order (see,

e.g., J 1-6, L 1-5, M 1-5, R 8). As Directive #15-08 notes, "The

Court has discretion to order the issuance of a warrant ..." Id.

at 6.41 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

the 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's license is suspended via an order when

she is in court, he or she is obviously present and advised of

the suspension personally by the judge and no additional notice

from the MVC would therefore be required. Conversely, when a

warrant is explicitly issued "without further notice", the

obligor has no notice of the suspension. Defendants' position --

41 See also, box 17, page 2 of the form Title IV-D order, "ordering" the issuance of a warrant (see, e.g., Exhibit L-89), and the charts recounting the plaintiffs' histories, in which warrants are entered only upon an order signed by a judge (J 1-4, L 1-5, M 1-4).

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).

In addition to the direct text of the statute requiring that

the "20 day window" be provided, there is a well developed body

of case law addressing the issue of every litigant's entitlement

to notice before a suspension is imposed. As a matter of

fundamental 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).

Since the year 2000, the Motor Vehicle Commission has

erroneously suspended a total of 5,686 child support obligors

an average of over 400 per year (See Exhibit F, Response from MVC

to Open Public Records Act request C93813).42 This has happened to

42 At least one of the warrants entered against one of the named plaintiffs appears to have been erroneous. The 11/29/2012 warrant for the arrest of LaQuay Dansby does not appear in the

39 obligors in 2015 as of April 22, 2015. Ibid. An erroneous

suspension means that the license was not held by the obligor,

the order at issue had been vacated, an obligor had in fact

appeared to answer a warrant, or some other error occurred in the

system. Although these suspensions could eventually be removed,

the obligors would not have had to incur the time and

inconvenience involved in doing so had the statute been complied

with. Additionally, as the MVC enjoys statutory immunity from

damages, these totally innocent people who had their license

erroneously suspended cannot seek compensation for towing fees,

cab fees, time lost from work, legal fees, or any other expense

associated with being improperly issued a summons for driving

while revoked and having a vehicle towed. Providing them with a

20 day window is a matter of basic fairness.

The text of two statutes, along with basic notions of

fundamental fairness, dictate that no person can be suspended

without notice.

This court should act to address this violation by granting

the relief set forth below.

Point IV. THE CURRENT LICENSE SUSPENSION PROCEDURES

VIOLATE PLAINTIFFS' RIGHT TO FUNDAMENTAL

FAIRNESS VIA THE FAILURE TO APPOINT

records of the Division of Family Development, nor of the AOC, nor (in contrast to every other warrant in every plaintiff's file) does an order exist that instructs that a warrant be issued.

COUNSEL FOR INDIGENT LITIGANTS FACING

THIS CONSEQUENCE OF MAGNITUDE.

It is well established that, as a matter of fundamental

fairness, a litigant is entitled to counsel whenever faced with a

"potential consequence of magnitude" at a court proceeding. See,

e.g., Doe v. Poritz, 142 N.J. 1, 31 (1995); In re S.L. , 94 N.J.

128, 142 (1983); Rodriguez v. Rosenblatt, 58 N.J. 281 (1971).

In State v. Moran, 202 N.J. 311 (2010), a case specifically

focused on the constitutional nature of driving privileges, the

Supreme Court held "the suspension of a driver's license is a

consequence of magnitude because a license to drive in this State

is nearly a necessity . . . The need for standards governing

license suspensions touches on core constitutional principles."

Id. at 325-26. The Court did not in any way suggest that the

necessity' of having a license would somehow be less if the

license was suspended in contexts other than the reckless driving

conviction at issue in Moran. Moreover, the "Appendix to Part VII

Guidelines for Determination of Consequence of Magnitude" states,

"In determining if an offense constitutes a consequence of

magnitude in terms of municipal court sentencing, the judge

should consider the following: "Any period43 of driver's license

43 In contrast to defendants' past assertion on this issue, neither Moran nor the Guidelines suggest that the driver's license suspension must be "substantial", as mentioned in Rodriguez v. Rosenblatt, 58 N.J. 281 (1971), in order for the right to counsel to be triggered. However, the suspension at issue in this matter is substantial, given the poverty status of most obligors.

suspension."

It is of no moment, as the State has argued, that a support-

related suspension is not imposed for a definite period of time,

as would be the case in a criminal or disorderly persons matter.

Plaintiffs' entire argument is that license suspensions are

imposed automatically even when they lack the ability to pay (an

argument supported by the undisputed data showing that the vast

majority of defaulted obligors live in abject poverty), so the

power to end the suspension is an illusory one. Yet they need

counsel to make this very point. Although stated in the context

of a child support incarceration / due process claim, and not a

child support license suspension / consequence of magnitude

claim, Justice Albin has explained why a litigant without counsel

cannot actually choose to avoid the negative consequence:

That makes sense only if one accepts the notion that

plaintiffs had the wherewithal to pay their child

support arrears. It is the purpose of the child support

hearing to establish that very point. It is at that

hearing that an indigent parent untrained in the law,

and perhaps anxious and inarticulate, needs the guiding

hand of counsel to help prove that his failure to make

support payments was not due to willful disobedience of

a court order but rather to his impecunious

circumstances. Pasqua v. Council, 186 N.J. 127 (2006).

It also makes no difference that the nature of the

proceeding at issue is civil rather than criminal. As the

Appellate Division noted In the Matter of the Civil Commitment of

D.L., 351 N.J.   Super. 77 (App.Div. 2002), "The label affixed to a

case, whether it be civil or criminal, is not the dispositive

consideration. Rather, we look to the infringement upon the

person's due process rights to guide our decision." Id. at 91.

The appointment of counsel in order to ensure that a license

suspension is coercive would impose no significant structural

burden. The structure to conduct a proper hearing with appointed

counsel is already fully in place in Ability to Comply hearings.

The net change would be that suspensions could only be imposed in

the context of an Ability to Comply hearing rather than as the

eventual result of an inadequate ELR hearing. This would not be a

monumental change.

With the exception of LaQuay Dansby, who was found to be

indigent and appointed counsel following numerous incarcerations

and license suspensions, the named plaintiffs certify that they

were never advised of their right to counsel at any stage of the

process that resulted in the eventual imposition of this

consequence of magnitude. Although indigent, none of them were

appointed counsel. There is no provision in the AOC directives,

the Child Support Hearing Officer Program Operations Manual nor

the statute itself that makes reference to notifying litigants as

to their right to counsel when the loss of a license is at stake,

and there is no provision for the appointment of counsel for an

indigent obligor at any point in the process.44

44 See also, FN 39 supra. Had competent counsel been made aware years ago of the procedural errors in Andreana's case that lead to multiple enforcement actions taking place in multiple

This court should act to address this violation of the New

Jersey Constitution by granting the relief sought herein.

Point V. THIS MATTER IS COGNIZABLE PURSUANT TO 42 U.S.C. § 1983 AND THE NEW JERSEY CIVIL RIGHTS ACT.

A. Plaintiffs have established Constitutional

violations entitling them to relief pursuant

to the New Jersey Civil Rights Act and 42

U.S.C. §1983.

42 U.S.C. §1983 provides, in pertinent part, that every

person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State . . . subjects, or causes to be

subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured. Ibid. Section 1983 permits

plaintiffs to seek only the vindication of Federal Constitutional

or Federal statutory rights, not rights arising under a State

Constitution.

counties rather than enforcement venue being move to her county of residence, as should have occurred automatically, the actions finally taken by a supervisor in probation would have occurred long ago, before a probation employee had to express the surprise reflected in the NJKIDS screen shots (J 84-85).

The New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c) (NJCRA)

protects against the deprivation of and interference with

"substantive rights, privileges or immunities secured by the

Constitution or laws of this State." The NJCRA is a vehicle to

protect and vindicate substantive and statutory rights that arise

from the State Constitution or state laws.

Neither the NJCRA and 42 U.S.C. §1983 are themselves a

source of substantive rights, but rather are vehicles by which

rights conferred by the Federal Constitution and federal laws (as

to plaintiffs' §1983 claims), or State substantive or statutory

rights (as to plaintiffs' NJCRA claims) may be vindicated.

Tumpson v. Farina, 218 N.J. 450, 464 (2014).

B. Plaintiffs have demonstrated statutory

violations actionable under the NJCRA.

Plaintiffs have been denied specific protections written

into the New Jersey Child Support Program Improvement Act.

N.J.S.A. 2A:17-56.47 states "all actions taken to suspend or

revoke a license in accordance with [this law ] shall be carried

out in full compliance with due process laws and the Rules

Governing the Courts of the State of New Jersey."

As set forth above, the current procedures violate the

general requirement under N.J.S.A. 39:5-30 that "every . . .

privilege to drive motor vehicles . . . may be suspended or

revoked ... after due notice in writing" and the specific

requirement of N.J.S.A. 2A:17-56.44 that a "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..."

The statutory rights of Ms. Kavadas, Mr. Dansby, Mr. Arede,

and 20,000 other New Jersey citizens per year have been violated.

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. 2A:17-56.44 is

to provide fairness, due process, to alert suspended obligors so

they will cease driving, as well as 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.

Plaintiffs have established a violation of federal and state

Constitutional rights, and of state statutes.

C. Defendants are the proper

parties and are not immune from

injunctive relief.

The challenges raised herein are the result of statutes

enacted by the Legislature and directives promulgated by the

Administrative Office of the Courts. Members of legislative

bodies, whether national, state, or local, enjoy absolute

immunity from suit based on their actions undertaken as part of

the legislative process. See Supreme Court of Virginia v.

Consumers Union of the United States, 446 U.S. 719, 732-33, 100

S.Ct. 1967, 1974-75, 64 L.Ed.2d 641 (1980), Pasqua v. Council,

186 N.J. 127 (2006). The promulgation of a Directive or court

rule is a legislative act, extending absolute legislative

immunity to the AOC. Pasqua v. Council, 186 N.J. 127 (2006).

Thus, this suit asserts its causes of action against those

who have carried out the laws and rules at issue. These are the

proper defendants. See, e.g., Tumpson v. Farina, 218 N.J. 450,

464 (2014) (asserting a cause of action against City Clerk who

refused to accept referendum seeking to challenge ordinance),

Garden State Equality v. Dow, 216 N.J. 314 (2013) (suing Attorney

General, Commissioner of the New Jersey Department of Human

Services, and Commissioner of the New Jersey Department of Health

and Senior Services), Gormley v. Wood-Ed, 218 N.J. 72 (2014)

(suing Chief Executive Officer of State psychiatric hospital),

Bechler v. Parsekian, 36 N.J. 242, 257 (1961) (suing Acting

Director of New Jersey Division of Motor Vehicles). See also, 28

U.S.C. § 2241 (Habeas corpus actions to be brought against warden

holding prisoner).

While it is clear that the named defendants enjoy immunity

from any claim for damages, it is equally clear that none of them

have immunity from the declarative and injunctive relief sought

by plaintiffs.

As a State actor, Chief Administrator Martinez has violated

plaintiffs' procedural and substantive rights by acting on orders

entered in the absence of due process and which were otherwise

unconstitutional as detailed herein. That he is required to act

on suspension orders issued by the courts is of no moment; his

higher duty is to uphold the Federal and State Constitutions and

he remains liable for any violation of the supreme law of the

land. Additionally, Chief Administrator Martinez violated

plaintiffs' statutory rights by suspending plaintiffs' licenses

without complying with his duty to provide a 20 day window before

making a suspension effective as per N.J.S.A. 2A:17-56.44.

Attorney General Hoffman has enforced unconstitutional laws

in violation of the substantive and procedural rights of the

plaintiff class and in derogation of the clearly expressed

legislative intent.

Defendants Natasha Johnson and the Division of Family

Development are part of the executive branch. Ms. Johnson has a

duty to refrain from transmitting suspension orders to the MVC

unless the process is operating in a manner consistent with

Federal and State law as well as the Constitutions of the State

of New Jersey and of the United States.

As the Supreme Court recently affirmed, qualified immunity

does not bar actions for injunctive relief. Gormley v. Wood-El,

218 N.J. 72, 115 (2014). See also, Wood v. Strickland, 420 U.S.

308, 314 n. 6, 95 S.Ct. 992, 997 n. 6, 43 L.Ed.2d 214, 221 n. 6

(1975) (Immunity from damages does not bar equitable relief as

well.); Hill v. Borough of Kutztown, 455 F.3d 225, 244 (3d

Cir.2006) ("[T ]he defense of qualified immunity is available

only for damages claims and not for claims requesting injunctive

relief.").

The actions set forth above constitute a violation of both

State and Federal rights. In sum, plaintiffs have demonstrated a

sufficient basis to proceed under both 42 U.S.C. § 1983 and under

the New Jersey Civil Rights Act.

Point VI: THE COURT'S JULY 22, 2015 ORDER SHOULD BE AMENDED INSOFAR AS IT DENIED THE APPLICATION TO CERTIFY A PLAINTIFF CLASS CONSISTING OF CURRENTLY SUSPENDED OBLIGORS.

On May 1, 2015, plaintiffs filed an application seeking,

among other things, that a plaintiff class be certified

consisting of "obligors in arrears under child support orders due

to an inability (not unwillingness) to comply and who are facing

or have already incurred a suspension of their driver's licenses

through procedures which deprive them of rights guaranteed by the

Constitutions of the United States and the State of New Jersey,

and by Federal and State statutes."

Defendants opposed the application for certification,

arguing that plaintiffs could not demonstrate that they had met

the prerequisites for class certification nor shown that it would

be a superior method of adjudication.

On July 22, 2015, the court entered an order denying the

application for class certification, holding that the procedural

complexities of a class action were too onerous, that issues as

to commonality existed, and that the challenges raised herein

could be addressed as a test case.

The order was specifically entered without prejudice.

This court has the authority to alter or amend this

provision at any time prior to the entry of judgment. As set

forth below, now that a full factual record exists, the court

should and can certify a plaintiff class, at least consisting of

persons who are current suspended and would otherwise find no

redress.

A. The court did not consider defendants'

history of failing to adhere to test case

decisions.

The court is asked to revisit the holding that a test case

will adequately protect the rights of a putative class, at least

as to a class consisting of obligors whose licenses are currently

under suspension as the result of actions which are

unconstitutional or violative of their statutory rights.

There has already been a test case on essentially the same

issue before this court, albeit in the form of an order from a

different trial court and a decision on a resulting emergent

application to the Appellate Division. In Dowe v. Chisea, Hon.

Dennis Carey III, JSC, ruled that certain provisions of the New

Jersey Child Support Improvement Act are unconstitutional (Dowe

v. Chisea, (F-616-13, Exhibit Q) and enjoined enforcement of the

Act insofar as it barred Mr. Dowe from receiving an electrician's

license as the result of arrears. The order permitted Mr. Dowe to

obtain his license and support his children. Rather than

accepting this laudable decision as a test case and modifying its

conduct, the Attorney General's office filed an emergent

application, seeking to defend the Act in cold disregard of the

effect a reversal would have on the children Mr. Dowe was to

support.45

While denying the request for a stay as to Mr. Dowe, the

Appellate Panel did modify the provision of the trial court's

order that restrained the Attorney General from enforcement of

the CSIA against persons similarly situated to Mr. Dowe. The

Appellate Judges held "We also consider the scope of the trial

court's order to be overbroad at this time. In particular, this

is an application by an individual plaintiff, rather than a class

action, and a statewide injunction ... appears premature."

(Exhibit Q).

Similarly, in Ricks v. Fowler, FD-11-1012-06, Judge Mitchell

Ostrer, then sitting in the Family Part, authored a detailed 64

page decision invalidating on constitutional grounds the

mandatory assignment of child support paid to the Board of Social

Services paid by custodial parents for children subject to the

"welfare cap." See www.dpdlaw.com/Fowler.pdf. The State complied

with Judge Ostrer's ruling in Mr. Fowler's case and the funds he

45 This is in no way a disparagement of counsel. As Deputy Attorneys General, counsel has a duty to zealously represent their client and to pursue all ethical actions within the law to attain their client's goals. Counsel have acted with integrity and professionalism at all times and this argument is not intended to imply anything to the contrary.

paid were provided to the custodial parent and used for his

daughter's benefit. However, the Board of Social Services has

continued to enforce assignments in other cases in spite of Judge

Ostrer's well-reasoned decision.

Dowe served as a test case. It has caused no changes in the

system. Fowler served as a test case and contained an

exhaustively researched Constitutional analysis. It has caused no

systemic changes. But for the representation of the Deputy

Attorney General at oral argument on July 22 that "if the Court

found that a law was unconstitutional, it would apply to

everybody"46 (Exhibit X 95:1-95:3), there would be absolutely no

basis to believe a test case would address the great harm being

caused in spite of its ignoring of test cases in the past.47

Transcript of oral argument, July 22, 2015 (Exhibit X).48

46 Plaintiffs assert that this representation in open court is binding and that judicial estoppel should preclude a future attempt to limit any relief this court grants to the four named plaintiffs.47 At oral argument, the trial court sua sponte raised the decision of the United States Court of Appeals for the First Circuit in Dionne v. Bouley, 757 F.2d 1344 (1st.Cir. 1985) (Exhibit X48 , 124:17-124:18). There was no evidence in Dionne of a history of test cases having been decided and the defendants nonetheless continuing the actions prohibited by the court in other similar cases. To the contrary, the Dionne court noted that the defendants therein had ceased the complained of conduct by the time the decision was rendered. Additionally, the Supreme Court of Rhode Island has never expressed a public policy in favor of proceeding via a class action on par with the holdings of the New Jersey Supreme Court favoring the class action mechanism. See, e.g., In Re Cadillac V8 - 6 - 4 Class Action , 93 N.J. 412 (1983).

B. The court should certify a limited plaintiff class

consisting of Obligors Currently subject to unconstitutional

suspension of their drivers' licenses

Even assuming arguendo that defendants would accept a test

case as binding and make systemic changes, in the absence of

class certification or an individual order in each case, the

hands of defendant MVC and Chief Administrator Martinez would be

tied from taking the primary relief that equity cries out for:

The recision of the currently outstanding suspensions imposed in

derogation of obligor's rights. Pursuant to N.J.S.A. 2A:17-

56.44(6)(a), the MVC "shall not have jurisdiction to modify,

remand, reverse, vacate or stay a court order to restrict,

suspend or revoke a license for non-payment of child support."

Via this action, 20,000 people, the vast majority of whom

are in dire poverty and have been deeply harmed by a

counterproductive, unconstitutional system, have reached out to

this Court for redress via the vehicle of a class action. The

court should not turn away 19,996 of them.

If the court proceeds as a class action rather than a test

case, it will have broader authority to address the issues raised

herein. Whereas to constitute a class, the claims of the

representative parties be "typical" of the class, every member of

a class need not be suffering the precise harm at issue so long

as the claims of the representatives "have the essential

characteristics common to the claims of the class." In Re

Cadillac V8 - 6 - 4 Class Action , 93 N.J. 412 (1983). In Cadillac, a

class was certified wherein "all plaintiffs claim that through

GM's misrepresentation they bought defective automobiles and that

they have suffered the same breach of the same warranty." Here, a

broad class is proposed and the court is asked to remedy several

aspects of the New Jersey Child Support Improvement Act that are

both unconstitutional and counterproductive. If limited to

addressing the precise harms suffered by the plaintiffs, the

court may not have the authority to make larger changes that may

be needed to bring the act into compliance with the law,

constitution, and intent of the legislature.

The ability to apply broad remedies against broad harms and

to vindicate the constitutional and statutory rights of the

people is precisely why the class actions mechanism exists and

why our Supreme Court has expressed such a strong public policy

in favor of it.

At a minimum, the court should certify a class consisting of

those who are suffering the ongoing harms associated with having

an improperly suspended license.

C. The court has the authority to revisit an order as to class

certification at any time prior to the entry of judgment.

The Court has the authority to alter or amend an order as to

the certification of a class at any time prior to the entry of

judgment. In re Cadillac, 93 N.J. 412 (1983). The Rule does not

require a showing of the heightened standard applicable to a

reconsideration application pursuant to R. 4:49-2.

D. The court's holding that class

certification would unduly

complicate the resolution of the

case rested on an erroneous reading

of Rule 4:32-1(b).

As to whether class certification would unduly complicate

the resolution of the case, it is respectfully asserted that the

Court misread the requirements of Rule 4:32-1(b). In sum, because

the complaint seeks only injunctive and declarative relief, this

Court has more discretion over its management than it thinks it

does.

To be certified, a putative class must establish all of the

prerequisites set forth in 4:32-1(a) and at least one (not all)

of the provisions of R. 4:32-1(b). A class can be certified

pursuant to 4:32-1(b)(1), 4:32-1(b)(2), or 4:32-1(b)(3). See,

Pressler, Current N.J. Court Rules, page 1774, comment 2.2.1 on

R. 4:32-1 (2016) ("...the class action is maintainable only if it

also meets one of the alternative conditions of paragraph (b))."

(Emphasis added.). Each provision of subsection (b) employs an

"or" test, requiring a demonstration of only one of the three

alternative requirements.

Rule 4:32-1(b)(2) controls applications for injunctive or

declarative relief such as that sought here. Plaintiffs have met

the requirements under 4:32-1(b)(2) as "the party opposing the

class has acted or refused to act on grounds generally applicable

to the class, thereby making appropriate final injunctive relief

or corresponding declaratory relief with respect to the class as

a whole."

When a class is certified pursuant to R. 4:32-1(b)(2), the

burdensome notice requirements of under R. 4:32-2(b) become

discretionary. Rule 4:32-2(1) holds "(1) If a class is certified

pursuant to R. 4:32-1(b)(1) or (b)(2), the court may direct

appropriate notice to the class." In contrast, R. 4:32-2(2)

states "If a class is certified pursuant to R. 4:32-1(b)(3), the

court shall direct ...."

Proceeding under R. 4:32-1(b)(2) does not require the court

to complicate the issues or the management of the case. It can

proceed on its current track to summary judgment. The primary

purpose of providing notice to class members is so that any who

wish to do so may opt out of the class and pursue separate

(financial) recourse. Here, the proposed plaintiff class is

limited to those persons currently suspended by the automatic

process. Obviously, no member of the putative class would seek to

opt out and thus volunteer to be treated unfairly via an

automatic, no-notice suspension. The procedural burdens that

concerned the court are nonexistent when, as here, the issue is

limited to the type of injunctive relief sought herein.

Nothing more is required by the rules and nothing less will

vindicate the rights of a great number of people looking to this

court to remedy a system that has acted unfairly and done much

harm both to their rights and to their children's right to

receive support.

E. Plaintiffs have established the four

required elements of 4:32-1(a).

Regardless of whether the relief sought is damages or

equitable relief, an application to certify a class must

demonstrate all the prerequisites of Rule 4:32-1(a).

1. Numerosity.

There is no question that plaintiffs exceed the threshold to

establish sufficient numerosity. Defendants have not previously

asserted a challenge based on numerosity. There are over 7,000

outstanding suspensions pursuant to currently exists procedures

(Exhibit G).

To establish numerosity, plaintiffs are not required to show

that it would be "impossible" to join all members, but only that

such joinder would be "difficult", "inconvenient" or

"impracticable." See, e.g., W.P. v. Poritz, 931 F.Supp. 1187

(D.N.J. 1996), Weiss v. York Hospital, 745 F.2d 786, 808 (3d

Cir.), cert denied 105 S.Ct. 1777, 470 U.S. 1060, 84 L.Ed.2d 836

(1984).

2. Commonality.

Whether plaintiffs established the requisite commonality was

disputed by defendants and, along with the above-discussed

concerns as to manageability, formed the basis of the court's

July 22 order denying the application to certify the plaintiff

class.

The court is respectfully asked to revisit the legal

authority it cited sua sponte during oral argument. The Court

first cited K.P. v. Albanese, 204 N.J.Super. 166 (App.Div.), cert

denied, 102 N.J. 355 (1985).49 In K.P., psychiatric patients who

were found to be eligible for "discharge pending appropriate

placement" (DPP) challenged whether rules provided them with the

least restrictive environment consistent with their rights and

treatment needs, and whether those rules had been properly

adopted in accordance with the Administrative Procedures Act. Id.

at 170.

Noting that "the clinical needs and the individual

capabilities of patients awaiting placement vary considerably",

the court found that the putative class lacked commonality and

typicality and that class certification was therefore "not

superior to other available methods for the fair and efficient

adjudication of the controversy." Id. at 178.

Whereas in K.P., the putative plaintiff class consisted of

patients with widely varying clinical needs and individual

capabilities, no two of whom may have been the same, here the

49 Although there is some discussion of class action issues and commonality in K.P., the case primarily concerns itself with the Administrative Procedures Act ("APA"). The decision notes that it thus was "unnecessary to pursue at length the objections to Judge Levy's rulings concerning class certification or the necessity of exhausting administrative remedies." Id. at 180. K.P. has been cited by fourteen subsequent cases for its discussion of the APA. It has never been cited for its holding as to commonality.

issue is far more binary: either plaintiffs received

constitutionally adequete process or they did not. Unlike in

K.P., here there should be no question that 20,498 people share

in common that they were subjected to a process that disregarded

their rights and greatly hampered their ability to support their

children.

Discovery has confirmed what plaintiffs alleged since the

filing of the complaint - that they did not receive specific

notice of a proposed suspension and were denied their due process

right to show that this action would not be coercive but would be

counterproductive. They were informed only of an amorphous right

to file a motion for modification rather than being provided with

the simple process that was developed by the DFD and then

withheld (Exhibit O). They were not provided with a Mathews-

compliant hearing as to a license suspension and were not

appointed counsel in spite of a consequence of magnitude being

imposed. There is no possible difference between the plaintiffs'

individual circumstances that would overcome these commonalities.

Unlike the challenge in K.P. as to whether the administrative

process was functioning correctly, here the challenge is as to

the complete deprivation of their rights, both statutory and

constitutional.

Similarly, the court cited Saldana v. City of Camden, 252

N.J. Super. 188 (1991). Saldana is also clearly distinguishable.

Initially, the plaintiffs sought monetary damages and sought

certification under R. 4:32-1(b)(3), thus mandating a more

complex action than that proposed here. Next, complex factual

claims existed as to whether the City of Camden was taking

adequete measures to ensure that fires in abandoned houses did

not spread to neighboring homes. The Appellate Division correctly

noted that the circumstances surrounding each plaintiff's claims

and the City's defenses would be different. Additionally, the

court noted that the plaintiffs would not be left without

recourse as each could pursue their individual damage claims. As

homeowners, they were undoubtedly better able to pursue court

action to vindicate their rights than indigent child support

obligors.

When determining whether a putative class has established

sufficient commonality, the focus should not be (as urged by

defendants) on whether there are some differences between

individual cases but on whether the class as a whole raises "at

least one common question of law or fact." Gross v. Johnson &

Johnson - Merck Consumer Pharms. Co. , 303 N.J.Super. 336, 342 (Law

Div.1997) (Emphasis added). See also, In re Cadillac V8 - 6 - 4 Class

Action, 93 N.J. 412 (1983), Philip Steven Fuoco, Robert F.

Williams, Class Actions in New Jersey State Courts, 24 Rutgers

L.J. 737, 752 (1993). It is respectfully asserted that there is

sufficient commonality to justify certification of the plaintiff

class.

C. Typicality.

A claim satisfies the typicality requirement for purposes of

class certification if it arises from the same event or course of

conduct which has given rise to claims of other class members. In

re Cadillac V8 - 6 - 4 Class Action , 93 N.J. 412, 425 (1983).

The complaint alleges a very specific course of conduct -

that rather than affording them the procedural due process

guaranteed by the Federal and State Constitutions and expressed

by the legislature via the factors set forth in 2A:17-56.43(5),

they have been subject to automatic license suspensions without

notice and without a reasonably recent inquiry into their ability

to pay. They thus allege, and the record before this court now

shows, that they have been systematically denied procedural,

substantive, and statutory rights. Additionally, defendants have

now acknowledged that the MVC, via an extraordinarily convoluted

interpretation of the definition of the word "order" that

excludes "warrants", they have systemically denied every obligor

(including but not limited to the 400+ person erroneously

suspended per year who did absolutely nothing wrong) of receiving

notice before a suspension is effective. These claims are not

just typical, they are uniform.

It is respectfully suggested that the proposed plaintiff

class exceeds the minimum requirement for typicality.

D. Adequacy.

The last requirement of R. 4:32-1(a) is a showing that the

parties will fairly and adequately represent the interests of the

class. "Adequacy is presumed in New Jersey courts, and the burden

is on the opposing party to demonstrate that the proposed

representation will be inadequate." Delgozzo v. Kenny, 266

N.J.Super. 169, 181 (App.Div.1993). Defendants have not thus far

raised a challenge to plaintiffs' assertion of adequacy.

The interests asserted by the putative class are identical,

and the named plaintiffs present compelling examples of why the

constitutional and statutory protections must be vindicated.

The standard on this issue has been clearly established by

case law. The burden to disprove adequacy is on defendants, who

will have to rebut the presumption of adequacy, with "[t ]he

court taking the substantive allegations of the complaint as

true". Delgozzo v. Kenny, 266 N.J.Super. 169, 181 (App.Div.1993)

(quoting Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th

Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75

(1976)). In the event adequacy is contested, the court is

required to give plaintiffs "every favorable view" of the

complaint and the record. Riley v. New Rapids Carpet Ctr., 61

N.J. 218, 223 (1972). Again, in light of the record, it is

respectfully suggested that plaintiffs far exceed the minimum

requirement for adequacy.

E. R.   4:32 - 1(b)

In order to have a putative class certified, common

questions of law or fact must "predominate over any questions

affecting only individual members" and the class action mechanism

must be "superior to other available methods for the fair and

efficient adjudication of the controversy." See, Iliadis v.

Wal - Mart Stores, Inc. , 191 N.J. 88 (2007); In re Cadillac V8 - 6 - 4

Class Action, 93 N.J. 412 (1983).

Here, there is a "common nucleus of operative facts" in that

the plaintiffs in the proposed class were compelled to (and the

class they seek to represent) have been denied statutory rights,

procedural due process, and substantive due process via the same

procedures. Accordingly, common issues of fact and law

predominate over any individual issue.

When it is considered that plaintiffs seek only injunctive

and declarative relief, thus invoking simpler and more

discretionary procedures than a more complex financial class

action, it becomes apparent that a class action is the superior

method of resolving the issues before the court and will foster

economies of time, effort, and expense.

For the above reasons, the court should revisit the issue of

the certification of the plaintiff class. Class certification, at

least as to those currently suspended, is not only a superior

method of adjudication R. 4:32(3), it would be the only way to

address the ongoing harm being suffered by over 20,000 people per

year.

CONCLUSION

For the above reasons, summary judgment in plaintiff's favor

should be granted and the court should revisit the issue of

certification of the plaintiff class.

Respectfully submitted this day of December, 2015

____________________________ David Perry Davis, Esq.