                                           SUPREME COURT OF NEW JERSEY
                                            C-808 September Term 2012
                                                      072186

D.N.,

    Plaintiff-Petitioner,

         v.

K.M.,

     Defendant-Respondent.
-------------------------------------------
K.M.,

    Plaintiff-Respondent,

         v.

D.N.,

    Defendant-Petitioner.


    PER CURIAM

    D.N. filed a petition for certification in connection with

the Appellate Division judgment that is reported at D.N. v.

K.M., 429 N.J. Super. 592 (App. Div. 2013).       Consistent with

current law, the Appellate Division concluded that “the

protections of due process do not require the appointment of

counsel for indigents presenting or defending a private party’s

civil domestic violence action.”       Id. at 606.   The dissent

recommends that the Court grant certification in this case and

examine whether counsel should be appointed for indigent



                                   1
citizens in civil proceedings under the Prevention of Domestic

Violence Act (Act), N.J.S.A. 2C:25-17 to -35.

     The Act itself does not authorize appointment of counsel

for the parties in a domestic violence action.    In that regard,

New Jersey is not alone.   Only one state provides for

appointment of counsel for both parties under comparable civil

domestic violence laws.    See N.Y. CLS Fam. Ct. Act 262(a)(ii).

Thus, without any statutory authority, a directive from this

Court requiring appointment of counsel would rest on

constitutional grounds.

     To be sure, such a ruling would affect thousands of cases

annually.   For the last court year alone, from July 2012 through

June 2013, there were approximately 15,800 hearings for final

restraining orders, according to the Administrative Office of

the Courts (AOC).   The AOC estimates that the vast majority of

plaintiffs and defendants in those hearings were not represented

by counsel.   By way of comparison, there were a total of about

1200 Madden1 appointments for the year, and roughly two-thirds of

them were for contempt proceedings in domestic violence cases.

     In any event, this case is not a good vehicle to embark on

a constitutional analysis of the issue presented because, based

on the record before us, petitioner did not assert that she was

1
   Madden v. Delran, 126 N.J. 591 (1992) (upholding
constitutionality of system of pro bono assignment of private
counsel for indigent defendants).
                                 2
indigent or ask the trial court to appoint counsel to represent

her.    In a similar context in 2009, the Appellate Division

declined to consider the right to appointment of counsel in

connection with a final restraining order entered under the Act.

Crespo v. Crespo, 408 N.J. Super. 25, 45 (App. Div. 2009),

aff’d, 201 N.J. 207 (2010).    The panel observed that “[t]he

record does not reflect that defendant ever sought the

appointment of counsel prior to or during the adjudication of

this domestic violence matter.    Accordingly, in the present

setting, the issue is purely academic.”    Ibid.   The same is true

here.

       The petition for certification is denied.   See R. 2:12-4.

     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, and
FERNANDEZ-VINA, and JUDGES RODRÍGUEZ and CUFF (both temporarily
assigned) join in this per curiam opinion. JUSTICE ALBIN filed
a separate, dissenting opinion.




                                  3
                                           SUPREME COURT OF NEW JERSEY

                                            C-808 September Term 2012

                                                     072186



D.N.,



        Plaintiff-Petitioner,



             v.



K.M.,



        Defendant-Respondent.

-----------------------------------------------

K.M.,



        Plaintiff-Respondent,



             v.



D.N.,



        Defendant-Petitioner.




    JUSTICE ALBIN, dissenting.

                                   1
    Today, my colleagues refuse to hear a case that raises

significant questions about the fairness of our civil justice

system -- a case that meets every criterion for the grant of

certification under our Court Rules.   See R. 2:12-4.   D.N. has

filed a petition for review of D.N. v. K.M., 429 N.J. Super. 592

(App. Div. 2013), in which the Appellate Division held that an

indigent defendant is not entitled to appointed counsel when

prosecuted for violations of the Prevention of Domestic Violence

Act (“Domestic Violence Act”), N.J.S.A. 2C:25-17 to -35.     That

decision cuts against the grain of a long line of jurisprudence

in New Jersey guaranteeing the right to counsel to impoverished

defendants facing consequences of magnitude, even in civil

cases.   The Appellate Division ruled that a poor defendant has

no right to appointed counsel in a domestic violence case

despite the enormity of consequences that flow from a violation

of the Domestic Violence Act.   Thus, a defendant mother, who is

found to have violated the Act, could lose custody of her

children and possession of her house; could face crushing

financial penalties and placement of her name on an offender

registry, jeopardizing her ability to secure employment, credit

and housing; and could forfeit her right to possess a firearm.

The loss of these rights and imposition of these penalties may

occur on an unlevel playing field where an inarticulate

defendant, ignorant of the law and courtroom procedures, is

                                 2
prosecuted by a well-trained, skilled, and experienced attorney

representing the opposing party.

    The issue before the Court is not “purely academic” as my

colleagues contend.   D.N. v. K.M., __ N.J. __, __ (slip op. at

3) (quoting Crespo v. Crespo, 408 N.J. Super. 25, 45 (App. Div.

2009), aff’d o.b., 201 N.J. 207 (2010)).   My colleagues rely on

Crespo, supra, 408 N.J. Super. at 45, a case in which the

Appellate Division declined to address the issue of the right to

appointed counsel in a domestic violence case.   Unlike Crespo,

here the Appellate Division decided the issue, and its ruling

stands as the law of the State until this Court says otherwise.

    My colleagues cannot expect that an uncounseled defendant,

such as D.N., would know to assert her right to appointed

counsel in a domestic violence case.   It was the obligation of

the Family Court to advise her of that right, which did not

happen here.   Importantly, D.N. argued on appeal (when

represented by counsel) that she was indigent and had the right

to appointed counsel, and the Appellate Division addressed the

issue in a published decision.   I do not understand how my

colleagues can say that “this case is not a good vehicle to

embark on a constitutional analysis of the issue presented,”

D.N., supra, __ N.J. at __ (slip op. at 2), when the issue was

presented to and decided by the Appellate Division.



                                   3
     Last year marked the fiftieth anniversary of the landmark

ruling in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9

L. Ed. 2d 799 (1963), a case trumpeting the right to counsel for

the indigent in criminal cases.         After Gideon, this Court took a

giant step forward -- far ahead of other courts in the nation --

to secure for the poor the opportunity for equal justice in

courtrooms throughout this State.        See Rodriguez v. Rosenblatt,

58 N.J. 281 (1971).   The right to counsel is an essential

attribute of a fair trial.     The denial of this petition will

surely disappoint those who expect this Court to remain at the

forefront of ensuring a fair adversarial process for the poor

who face serious consequences of magnitude in civil cases.

     For the reasons I have given and for those that follow, I

respectfully dissent.



                                    I.

     In Rodriguez, supra, this Court held that “as a matter of simple

justice, no indigent defendant should be subjected to a conviction

entailing imprisonment in fact or other consequence of magnitude

without first having had due and fair opportunity to have counsel

assigned without cost.”   58 N.J. at 295 (emphasis added).    In

Rodriguez, we recognized that, in our adversarial system, defendants

untrained in the complexities of the law are disadvantaged and in no

position to represent themselves.   Ibid.    Because the practicalities

of life did not permit for “a universal rule for the assignment of

                                    4
counsel to all indigent defendants,” we accepted that the denial of

counsel “may be tolerable” in cases where litigants face no “serious

consequence.”   Ibid.   But we were unwilling to abide the denial of

counsel to an indigent defendant who faced a “consequence of

magnitude.”   Ibid.


     In the wake of Rodriguez, the landscape of the law changed in New

Jersey, and our Court Rules reflect this new reality.    Now, under Rule

7:3-2(b), if an indigent defendant is facing a “consequence of

magnitude” in a municipal court case, he or she must be assigned a

municipal public defender.   In the municipal court setting, the

potential imposition of a sentence of imprisonment, a period of

license suspension, or even a monetary sanction of $750 or greater,

each individually, constitutes a “consequence of magnitude” entitling

a defendant to the appointment of counsel.    Guidelines for

Determination of Consequence of Magnitude, Pressler & Verniero,

Current N.J. Court Rules, Appendix to Part VII at 2503 (2014).


     In deciding Rodriguez, we did not hinge our decision on the

number of defendants who might be entitled to appointed counsel.     We

did not suggest that for defendants facing consequences of magnitude,

the right to appointed counsel -- and therefore the right to a fair

trial -- depended on a cost analysis.    Had the United States Supreme

Court taken the cost-analysis approach, Gideon would not be on the

books today, nor would Rodriguez.   My colleagues note in their per

curiam opinion that “last court year alone, from July 2012 through

June 2013, there were approximately 15,800 hearings for final


                                     5
restraining orders, according to the Administrative Office of the

Courts (AOC).”   D.N., supra, __ N.J. at __ (slip op. at 2).   However,

during that same period, according to the AOC, our court system

disposed of 35,641 driving-while-intoxicated cases, and in every one

of those cases involving an indigent defendant, the right to appointed

counsel was guaranteed.   Our approach has not been that if too many

indigent defendants require counsel, we will provide counsel to none.


     Appointed counsel, moreover, is provided to many thousands of

criminal defendants, and to a multitude of defendants in civil cases,

as is evident below.




                                  II.


     An indigent defendant must be assigned counsel in civil cases if

he is facing imprisonment for failure to pay child support, Pasqua v.

Council, 186 N.J. 127, 149 (2006); termination of parental rights,

N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306-07

(2007); tier classification for community-notification purposes in a

Megan’s Law case, Doe v. Poritz, 142 N.J. 1, 31 (1995); involuntary

civil commitment, In re S.L., 94 N.J. 128, 142 (1983); and contempt

proceedings for violating a restraining order, State v. Ashford, 374

N.J. Super. 332, 337 (App. Div. 2004).


     Yet, a defendant who is prosecuted for an act of domestic

violence is not entitled to counsel even though he faces a host of

consequences of magnitude, including an order expelling him from his


                                    6
home, N.J.S.A. 2C:25-29(b)(2); barring him from having contact with

his children, N.J.S.A. 2C:25-29(b)(3)(b), or suspending his custodial

rights to his children, N.J.S.A. 2C:25-29(b)(11); compelling him to

pay compensatory and punitive damages, N.J.S.A. 2C:25-29(b)(4), or

emergency monetary relief, N.J.S.A. 2C:25-29(b)(10); seizing his

firearms, N.J.S.A. 2C:25-29(b)(16), and suspending his right to own a

firearm or retain a firearms permit, N.J.S.A. 2C:25-29(b); restraining

him from entering places frequented by the plaintiff or the

plaintiff’s family or household members, N.J.S.A. 2C:25-29(b)(6);

requiring him to undergo a psychiatric evaluation, N.J.S.A. 2C:25-

29(b)(18), or professional counseling, N.J.S.A. 2C:25-29(b)(5);

dispossessing him of an automobile, N.J.S.A. 2C:25-29(b)(9), or a

family animal, such as a dog, N.J.S.A. 2C:25-29(b)(19); mandating that

he submit to fingerprinting, N.J.S.A. 53:1-15; placing his name on a

central registry for domestic violence offenders, N.J.S.A. 2C:25-34;

requiring him to report to the intake unit of the Family Court for

monitoring, N.J.S.A. 2C:25-29(b)(15), and imposing other restrictions

on his liberty and property interests.


     This catalogue underscores that “[t]he issuance of a final

domestic violence restraining order ‘has serious consequences to the

personal and professional lives of those who are found guilty of what

the Legislature has characterized as a serious crime against

society.’”   Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div.

2005) (quoting Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App.

Div. 2004)).   The inescapable reality is that a finding that one has

committed an act of domestic violence, in addition to everything else,

                                    7
brands that person as a “batterer.”       The stigma of that branding is

recorded in the Domestic Violence Registry, N.J.S.A. 2C:25-34, and has

far-reaching effects.


     How can our jurisprudence reconcile the right of appointed

counsel to a defendant facing a $750 fine or a one-day license

suspension in municipal court with the denial of that right to a

defendant who is facing much more serious consequences in Superior

Court in a domestic violence case?        Yet, the appellate panel in this

case held that “[t]he entry of a domestic violence [final restraining

order], along with an order granting the additional relief available

under N.J.S.A. 2C:25-29b, does not result in a ‘consequence of

sufficient magnitude’ to warrant the mandatory appointment of

counsel.”   D.N., supra, 429 N.J. Super. at 604.       The appellate panel’s

decision does not appear to reflect the holdings or the spirit of our

jurisprudence.


     In Pasqua, supra, we made clear that “[u]nder the due process

guarantee of the New Jersey Constitution, the right to counsel

attaches even to proceedings in which a litigant is not facing

incarceration.”   186 N.J. at 147.    We acknowledged that “the adverse

consequences of a particular civil proceeding can be as devastating as

those resulting from the conviction of a crime.”        Id. at 142.   The

assistance of counsel is an indispensable component of the right to a

fair trial in an adversarial proceeding.       “A person of impoverished

means caught within the tangle of our criminal or civil justice




                                      8
system” who is facing a consequence of magnitude should have “the

assistance of a trained and experienced lawyer.”       See id. at 146.


     In Pasqua, we could “find no principled reason why an indigent

facing loss of motor vehicle privileges or a substantial fine in

municipal court . . . would be entitled to counsel under state law but

an indigent facing jail for allegedly willfully refusing to pay a

child support judgment would not.”       Id. at 149.   What principled

reason can be found to deny an indigent defendant, facing so many

consequences of magnitude in a domestic violence case, the right to

appointed counsel, when counsel is provided to a municipal court

defendant who may be fined $750?   Certainly, this is an issue worthy

of review.




                                   III.


     The petition before us meets every ground for certification under

Rule 2:12-4.   The petition “presents a question of general public

importance” that has not been settled by this Court, the appellate

panel’s holding and reasoning “is in conflict with” decisions of this

Court, and, last, it is in the “interest of justice” that this Court

determine whether indigent citizens can be deprived of significant

rights in a domestic violence hearing without the assistance of

counsel.   See R. 2:12-4.


     With Gideon and Rodriguez as our guides, it is difficult to

imagine a case presenting a more compelling issue for review:        the


                                     9
right of indigent defendants, who are facing calamity, to a fair shake

in our civil justice system.   I am not willing to turn away from this

important issue.   Because I would grant certification, I respectfully

dissent.




                                   10
