                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-27-2003

Anthony v. Council
Precedential or Non-Precedential: Precedential

Docket 01-2735




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PRECEDENTIAL

       Filed January 17, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2735

MICHAEL ANTHONY,
INDIVIDUALLY AND ON BEHALF OF
ALL PERSONS SIMILARLY SITUATED;
ANNE PASQUA; RAY TOLBERT

v.

GERALD COUNCIL, HON.; *LEE F. FORRESTER, HON.,
IN THEIR OFFICIAL CAPACITY AS A JUDGE OF THE
SUPERIOR COURT, AND ON BEHALF OF ALL SUPERIOR
COURT JUDGES OF THE STATE OF NEW JERSEY;
DEBORAH T. PORITZ, HON., IN HER OFFICIAL CAPACITY
AS CHIEF JUSTICE OF THE SUPREME COURT OF NEW
JERSEY, AND ON BEHALF OF ALL SUPERIOR COURT
JUDGES OF THE STATE OF NEW JERSEY;
RICHARD J. WILLIAMS, HON., IN HIS OFFICIAL
CAPACITY AS ADMINISTRATIVE DIRECTOR OF THE
COURTS OF THE STATE OF NEW JERSEY, AND ON
BEHALF OF ALL SUPERIOR COURT JUDGES OF THE
STATE OF NEW JERSEY

       Anne Pasqua, Ray Tolbert and
       Michael Anthony, individually and on
       behalf of all persons similarly situated,
       Appellants

*(Amended in accordance with Clerk’s Order
dated 8/22/01)

On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 00-cv-02418
(Honorable Garrett E. Brown, Jr.)




Argued April 23, 2002

Before: SCIRICA, RENDELL and NOONAN,*
Circuit Judges

(Filed: January 17, 2003)

       DAVID P. DAVIS, ESQUIRE
        (ARGUED)
       31 Jefferson Plaza
       Princeton, New Jersey 08540

        Attorney for Appellants
       BARBARA J. STOOP, ESQUIRE
        (ARGUED)
       Office of Attorney General of
        New Jersey
       Division of Law
       Richard J. Hughes Justice Complex
       25 Market Street, P.O. Box 112
       Trenton, New Jersey 08625

        Attorney for Appellees

OPINION OF THE COURT

SCIRICA, Circuit Judge:

This appeal arises out of a federal civil rights lawsuit
brought by persons under state court orders for failing to
support their children. Plaintiffs seek declaratory and
injunctive relief under 42 U.S.C. S 1983 contending the Due
Process Clause establishes a right to counsel, and, if
indigent, a right to appointed counsel. Defendants are New
Jersey state court judges and the administrative director of
the New Jersey courts.1 The District Court abstained under
Younger v. Harris, 401 U.S. 37 (1971). We will affirm.
_________________________________________________________________

*The Honorable John T. Noonan, Jr., United States Circuit Judge for
the Ninth Judicial Circuit, sitting by designation.

1. The District Court had jurisdiction under 28 U.S.C. SS 1331,
1343(a)(3). We have jurisdiction under 28 U.S.C.S 1291.

                                 2


I

Plaintiffs, Michael Anthony, Anne Pasqua and Ray
Tolbert, are all under child support orders issued by the
Superior Court of New Jersey, Chancery Division, Family
Part. Because they failed to meet their child support
obligations, they were arrested and incarcerated for civil
contempt of a court order.2

Plaintiffs allege violations of their due process rights
under the Fourteenth Amendment.3 Specifically, they
contend the presiding judges failed to inform them of their
right to counsel and, if indigent, to appointed counsel, and
moreover, the judges failed to appoint counsel for them.
Plaintiffs contend they were indigent at the time of their
hearings, continue to be indigent, and remain in arrears on
their support obligations. As such, they aver there is a
great likelihood they will again be deprived of their asserted
rights because in the future they will be obligated to appear
in similar contempt hearings.
_________________________________________________________________

2. Anthony was arrested on April 19, 2000 and incarcerated. He
appeared before defendant Superior Court Judge Gerald J. Council on
May 11, 2000, and was released that same day after paying $125.00
toward his arrears. Pasqua was arrested on May 15, 2000, and appeared
before defendant Superior Court Judge Lee F. Forrester on May 18,
2000. Pasqua was incarcerated until June 1, 2000, when she was
released without having made any payment towards her arrearage.
Tolbert was arrested on March 27, 2000, and held until April 13, 2000,
when he appeared before Judge Council. Tolbert was incarcerated until
June 7, 2000, when he was released "pursuant to[a] state appellate
court order which is not related to this suit." Pasqua v. Council, No. 00-
2418, at 3 (D.N.J. Mar. 9, 2001) (quotations omitted). On June 8, 2000,
another hearing was held on Tolbert’s arrearage and after being re-
incarcerated, he was soon released and placed in a work/training
program.

3. Plaintiffs’ complaint also alleges defendants violated their rights under
the Fifth Amendment of the United States Constitution and under Article
I, paragraph 8 of the New Jersey Constitution. The District Court also
examined plaintiffs’ assertions under the Sixth Amendment of the United
States Constitution. Pasqua, No. 00-2418, at 2 n.1. But in plaintiffs’
appellate briefs, they do not mention these federal and state
constitutional provisions. Because claims not raised in their briefs are
waived, we will not consider these claims. See, e.g., Fed. Deposit Ins.
Corp. v. Deglau, 207 F.3d 153, 169 (3d Cir. 2000).

                                3


Based on the alleged deprivations and their fear of future
deprivations, plaintiffs sued certain New Jersey judges and
the administrative director of the New Jersey courts under
42 U.S.C. S 1983. See 42 U.S.C. S 1983 (creating liability for
individuals who, "under color of any statute, ordinance,
regulation, custom, or usage" of a state, subject others "to
the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws"). According to
plaintiffs, their constitutional deprivations occur under
court rules and procedures promulgated and followed by
defendants.

Plaintiffs seek the following declaratory and injunctive
relief: a declaration that defendants’ failure to inform them
of their right to counsel and to appointed counsel, as well
as defendants’ failure to provide counsel, violated their
constitutional rights; and an injunction preventing future
incarceration without notification of right to counsel and to
appointed counsel, and requiring appointed counsel
whenever a hearing might result in a deprivation of liberty.

Plaintiffs also seek certification of a plaintiff class
consisting of indigent New Jersey residents under child
support orders who may appear in similar contempt
hearings. The proposed defendant class would consist of all
New Jersey Superior Court Judges. Finally, plaintiffs seek
a preliminary injunction to immediately remedy the current
alleged failures of the New Jersey court system. 4

The District Court did not reach the merits of the suit.
After defendants filed a Motion to Dismiss in Lieu of
Answer, the District Court abstained citing Younger v.
Harris. Because it abstained, the District Court denied
plaintiffs’ motions for class certification and a preliminary
injunction. The plaintiffs appeal the decision to abstain and
the denial of their motions. Because this appeal comes to
us from a grant of a motion to dismiss under Fed. R. Civ.
P. 12(b)(6), "[w]e accept all factual allegations in the
complaints and all reasonable inferences to be drawn
_________________________________________________________________

4. In addition, plaintiffs ask that defendants be required to review the
cases of all persons currently incarcerated in violation of the
constitutional rights asserted in this suit. Plaintiffs request attorneys’
fees and costs.

                                4


therefrom in the light most favorable to the plaintiffs. We
may affirm only if it is certain that no relief could be
granted under any set of facts which could be proven."
Lorenz v. CSX Corp., 1 F.3d 1406, 1411 (3d Cir. 1993).

II

Before turning to the merits of abstention, we address
standing. Defendants did not contest plaintiffs’ standing
nor did the District Court address the issue. But we are
under an "independent obligation" to examine standing,
"even if the courts below have not passed on it, and even if
the parties fail to raise the issue before us." FW/PBS, Inc.
v. City of Dallas, 493 U.S. 215, 230-31 (1990) (citation
omitted). Upon review, we agree with the tacit
understanding of the parties and the District Court that
plaintiffs have standing in this matter.

As formulated by the Supreme Court, standing requires
the satisfaction of three elements:

       First, the plaintiff must have suffered an injury in fact
       --an invasion of a legally protected interest which is (a)
       concrete and particularized, and (b) actual or
       imminent, not conjectural or hypothetical. Second,
       there must be a causal connection between the injury
       and the conduct complained of . . . . Third, it must be
       likely, as opposed to merely speculative, that the injury
       will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(quotations, citations and footnote omitted). Plaintiffs here
meet all three prongs of the standing test.

First, plaintiffs allege they have been injured because of
past constitutional deprivations and are likely to be injured
in future child support contempt hearings. Fears of future
injury are based on the likelihood that plaintiffs, who
allegedly remain indigent, will be summoned again before
the New Jersey courts for failing to meet their support
obligations. Plaintiffs contend they are unlikely to enjoy
their asserted rights in any future hearings. See Scalchi v.
Scalchi, 790 A.2d 943, 945 (N.J. Super. Ct. App. Div. 2002)
("The current law in New Jersey [does not] require that
                                5


counsel be assigned to an indigent in a support
enforcement proceeding."); Prob. Servs. Div., Admin. Office
of the Courts, Your Guide to Court Preparation: Answers to
Common Questions About Child Support Enforcement
Hearings (n.d.) ("A lawyer will not normally be court-
appointed for this type of hearing . . . .").

Furthermore, there is a causal connection between the
alleged deprivations of plaintiffs’ constitutional rights and
the complained-of conduct by the judges and administrator
who promulgate and follow the current court practice.
Finally, plaintiffs’ injuries could be redressed by a favorable
ruling of a federal court declaring the actions of the New
Jersey courts unconstitutional and issuing the appropriate
injunctions.

Our view on standing is in accord with most decisions
rendered in similar suits. In challenges to current child
support contempt hearings and to threatened future
hearings, courts have explicitly held that plaintiffs have
standing. E.g., Parker v. Turner, 626 F.2d 1, 5 n.11 (6th
Cir. 1980) (finding standing for plaintiffs demanding right
to appointed counsel and other due process rights in future
child support hearings); Johnson v. Zurz, 596 F. Supp. 39,
42-43 (N.D. Ohio 1984) (finding standing for plaintiffs
demanding right to appointed counsel in current and future
child support hearings); Lake v. Speziale, 580 F. Supp.
1318, 1326-28 (D. Conn. 1984) (similar to Parker ). Other
courts have assumed that plaintiffs have standing without
directly addressing the issue. E.g., Henkel v. Bradshaw,
483 F.2d 1386 (9th Cir. 1973); Mastin v. Fellerhoff, 526 F.
Supp. 969 (S.D. Ohio 1981).5
_________________________________________________________________

5. We are aware of only one similar case in which a court held a plaintiff
did not have standing, but that case, Mann v. Hendrian, 871 F.2d 51
(7th Cir. 1989), is distinguishable. Mann focused on prospective relief for
one individual to protect against alleged constitutional deprivations by a
single judge. The Court of Appeals for the Seventh Circuit believed the
plaintiff ’s alleged future injury was too speculative because he failed to
show he would likely appear before the judge in question in any future
hearing. Id. at 53. Moreover, the court believed the relief sought was, in
part, unnecessary because, at the time of his federal suit, Mann knew of
his right to counsel at state contempt hearings and thus did not need an
order forcing the state court judge to inform him of this right. Id. at 52-
53.

                                6


This suit focuses on a cognizable past injury for which
declaratory relief is sought. The suit also seeks to prevent
future injury for all indigents, notably those unaware of the
rights alleged here, who will appear in child support
contempt hearings before any New Jersey Superior Court
judge. Hence, the injury here is not conjectural or
hypothetical nor is the efficacy of the sought remedy
speculative.

III

Turning to the merits, "[w]e exercise plenary review over
the legal determinations of whether the requirements for
Younger abstention have been met." FOCUS v. Allegheny
County Court of Common Pleas, 75 F.3d 834, 843 (3d Cir.
1996). If the requirements have been met, "we review the
district court’s decision to abstain for abuse of discretion."
Id.

In Younger, which involved a First Amendment-based
challenge to California’s Criminal Syndicalism Act, the
Supreme Court held that, unless there were extraordinary
circumstances, federal courts should not enjoin pending
state criminal prosecutions. 401 U.S. 37. The ruling was
based on traditional principles of equity and on
considerations of comity. Id. at 43-44. Younger defined
comity as "a proper respect for state functions, a
recognition of the fact that the entire country is made up of
a Union of separate state governments, and a continuance
of the belief that the National Government will fare best if
the States and their institutions are left free to perform
their separate functions in their separate ways." Id. at 44.6

Since Younger, the Supreme Court has extended the
doctrine to bar federal interference in other types of state
proceedings. Younger has been applied to civil enforcement
_________________________________________________________________

6. In Samuels v. Mackell, a case decided on the same day as Younger, the
Court held that "the same equitable principles relevant to the propriety
of an injunction must be taken into consideration by federal . . . courts
in determining whether to issue a declaratory judgment, and that where
an injunction would be impermissible under these principles, declaratory
relief should ordinarily be denied as well." 401 U.S. 66, 73 (1971).

                                7


proceedings and to other civil proceedings "involving certain
orders that are uniquely in furtherance of the state courts’
ability to perform their judicial functions." New Orleans
Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350,
368 (1989) (listing Court cases that have expanded the
doctrine). Younger has also been applied to certain state
administrative proceedings. See Ohio Civil Rights Comm’n v.
Dayton Christian Sch., Inc., 477 U.S. 619 (1986); Middlesex
County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.
423 (1982). The boundaries for the application of the
doctrine remain somewhat elusive. But from its inception,
it has been clear that Younger abstention only comes into
play when an important state interest is implicated.

We have framed a test to determine when Younger
abstention is appropriate. In order for a federal court to
abstain under the Younger doctrine:

       (1) there [must be] ongoing state proceedings that are
       judicial in nature; (2) the state proceedings [must]
       implicate important state interests; and (3) the state
       proceedings [must] afford an adequate opportunity to
       raise federal claims. Even if the necessary three
       predicates exist, however, Younger abstention is not
       appropriate if the federal plaintiff can establish that (1)
       the state proceedings are being undertaken in bad faith
       or for purposes of harassment or (2) some other
       extraordinary circumstances exist . . . such that
       deference to the state proceeding will present a
       significant and immediate potential for irreparable
       harm to the federal interests asserted.

Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989) (citing
Middlesex County Ethics Comm., 457 U.S. at 432, 435).

All three predicates exist here. Moreover, there is no
showing of bad faith, harassment or some other
extraordinary circumstance, which might make abstention
inappropriate. As such, we conclude the District Court was
correct in abstaining in this suit.

A. Pending Proceeding

Ensuring the provision of child support is a function
particular to the states. New Jersey law provides New

                                8


Jersey courts with the authority to order and direct the
payment of child support. In part, the statute reads:

       Pending any matrimonial action brought in this State
       or elsewhere, or after judgment of divorce or
       maintenance, whether obtained in this State or
       elsewhere, the court may make such order . . . as to
       the care, custody, education and maintenance of the
       children, or any of them, as the circumstances of the
       parties and the nature of the case shall render fit,
       reasonable and just . . . .

N.J. Stat. Ann. S 2A:34-23.

Each plaintiff here is under a child support order. Each
order requires continual involvement by the New Jersey
courts. Under New Jersey law, parents are obligated to
provide support until a child is emancipated. Newburgh v.
Arrigo, 443 A.2d 1031, 1037 (N.J. 1982).7 As such,
plaintiffs have been, and will remain, under their child
support orders for many years. Throughout the duration of
the order, the New Jersey courts are charged with
monitoring, enforcing and modifying the child support
obligations. See N.J. Stat. Ann. S 2A:17-56.9a (providing for
review and modification of child support orders); N.J.R. 5:7-
5 (providing for monitoring and enforcement of child
support orders, including the institution of contempt
hearings if obligors fail to make payments); N.J.R. 5:25-3
(explaining the jurisdiction, duties, powers and
responsibilities of Child Support Hearing Officers). As is
apparent, the New Jersey courts have performed their
delegated functions with respect to plaintiffs’ child support
orders.

Plaintiffs contend that, because they are not currently
appearing or scheduled to appear in any particular child
_________________________________________________________________

7. Emancipation can occur upon a variety of events taking place. The
"[a]ttainment of age [eighteen] establishes prima facie, but not
conclusive, proof of emancipation." Newburgh , 443 A.2d at 1037. As
such, parents may be required to provide for a child who is older than
eighteen, including contributing toward the costs of higher education. Id.
at 1038-39; see also Gac v. Gac, 796 A.2d 951, 955-58 (N.J. Sup. Ct.
App. Div. 2002) (explaining that a father may have to contribute toward
the costs of his daughter’s college education).

                                9


support hearing, including a contempt hearing, there is no
"ongoing" or "pending" proceeding.8 This argument may
carry weight in other types of suits. But given plaintiffs’
specific claims here and the particular nature of child
support orders, the argument is unavailing.9

In seeking declaratory and injunctive relief, plaintiffs
focus retrospectively and prospectively. To the extent
plaintiffs address past contempt proceedings, review is
barred by Younger. Once a party has appeared in state
court and has had "an opportunity to present [its] federal
claims in the state proceedings," a federal court normally
should refrain from hearing the claims. Juidice v. Vail, 430
U.S. 327, 337 (1977) (emphasis in original). The"party . . .
must exhaust his state appellate remedies before seeking
relief in the District Court, unless he can bring himself
within one of the exceptions specified in Younger." Huffman,
420 U.S. at 608.10 Plaintiffs here had ample opportunity to
raise any constitutional claims at their state contempt
hearings. They also could have appealed any adverse
decision to higher courts. See infra Section III.C. Instead,
they impermissibly attempted to bypass the state system
and to seek relief in federal court.

Addressing prospective injunctive relief, plaintiffs’
requested remedies will undeniably interfere with pending
_________________________________________________________________

8. The adjectives "ongoing" and "pending" are used interchangeably in
the caselaw. References to "ongoing" or "pending" proceedings are meant
"to distinguish state proceedings which have already commenced from
those which are merely incipient or threatened." Huffman v. Pursue, Ltd.,
420 U.S. 592, 607 (1975).

9. In contrast to child support orders, which endure for many years and
require continual state court involvement, most criminal and civil actions
are single, discrete matters, which have easily identifiable starting and
endpoints. That state courts continually monitor, enforce and modify
child support orders makes these particular procedures unique.
10. Similarly, the Rooker-Feldman doctrine restricts lower federal court
review of state-court judgments and evaluation of constitutional claims
that are "inextricably intertwined with the state court’s [decision] in a
judicial proceeding." D.C. Court of Appeals v. Feldman, 460 U.S. 462,
483 n.16 (1983); see also Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923). Because here we affirm abstention under Younger, we do not
address whether the Rooker-Feldman doctrine applies.

                                10


state proceedings. In New Jersey, child support orders and
the mechanisms for monitoring, enforcing and modifying
them comprise a unique system in continual operation.
Each plaintiff here is party to an open case that will not
terminate until the child support order is finally
discharged. The New Jersey courts retain continuing,
exclusive jurisdiction over these matters, whether the
claims are intrastate or interstate, see N.J. Stat. Ann.
S 2A:4-30.65 et seq., and the state courts constantly
monitor plaintiffs’ compliance with their orders. The New
Jersey Probation Division, an arm of the state judiciary, is
charged with oversight and reporting failures in meeting
support obligations. N.J.R. 5:7-5. The Probation Division
and the New Jersey courts are conferred with authority to
ensure that payments are made and to remedy any failures
to pay. Id.11 A New Jersey Superior Court judge may
_________________________________________________________________

11. The extent of the state courts’ involvement in child support matters
is exemplified in New Jersey Court Rule 5:7-5. The Rule is entitled:

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

N.J.R. 5:7-5. As the title suggests, the Rule provides for various means
by which the New Jersey courts, and the Probation Division in specific,
can secure the payment of child support obligations.

Of particular note is the continual monitoring by the Probation
Division, which may lead to the institution of contempt hearings if a
failure to pay is not quickly remedied. In part, the Rule reads:

       (a) Contempt and Relief in Aid of Litigant’s Rights. If a person fails
       to make payments or provide health insurance coverage as directed
       by an order or judgment, the Probation Division responsible for
       monitoring and enforcing compliance shall notify such person by
       mail that such failure may result in the institution of contempt
       proceedings. Upon the accumulation of a support arrearage equal to
       or in excess of the amount of support payable for 14 days or failure
       to provide health insurance coverage as ordered, the Probation
       Division shall file a verified statement setting forth the facts
       establishing disobedience of the order or judgment. The court . . .
       may then, in its discretion, institute contempt proceedings . . . and
       an aggrieved party, or the Probation Division on that party’s behalf,
       may apply to the court for relief . . . .
N.J.R. 5:7-5.

                                11


"revise[ ] and alter" orders "from time to time as
circumstances may require." N.J. Stat. Ann. S 2A:34-23.
Any party, including plaintiffs here, at any time, may
request modification of a support order. See N.J. Stat. Ann.
S 2A:17-56.9a.

For purposes of Younger, such a comprehensive and fluid
system designed to address the ever-present and ever-
changing realities of child support orders must be viewed
as a whole, rather than as individual, discrete hearings.
Plaintiffs have acknowledged as much. Their request for
prospective injunctive relief acknowledges that because of
their indigency and continued arrearages, they will be
subject to future ongoing contempt proceedings. Thus their
request for federal court intervention to prevent alleged
future constitutional violations constitutes impermissible
interference with pending state proceedings.

This holding is in accord with Younger. As the Supreme
Court has explained, part of the purpose of Younger
abstention is to avoid "duplicative legal proceedings" and
the "disruption of the state . . . justice system." Steffel v.
Thompson, 415 U.S. 452, 462 (1974); see also Juidice, 430
U.S. at 336. Federal court ruling and relief here would
address issues that plaintiffs can raise in their own cases
currently pending in the New Jersey courts. Federal ruling
and relief also would interfere with and disrupt the New
Jersey court system, especially if the federal court must
monitor and enforce the state courts’ compliance with a
federal order. See Parker, 626 F.2d at 8 (stating that a
federal order requiring state courts to provide appointed
counsel and other asserted due process rights would
necessitate continual federal court monitoring of the state
courts). Moreover, a federal court ruling could be
"interpreted as reflecting negatively upon the state court’s
ability to enforce constitutional principles," a suggestion the
Younger doctrine seeks to avoid. Steffel, 415 U.S. at 462.

B. Important State Interest

New Jersey has an overriding interest in ordering,
monitoring, enforcing and modifying child support
obligations. Any ruling in this action would surely affect
this interest. As such, the second predicate of our Younger
test is satisfied.

                                12


Two Supreme Court cases in particular illuminate our
analysis. In Juidice v. Vail, the Supreme Court concluded
that abstention under Younger was appropriate with
respect to pending contempt hearings. 430 U.S. at 328-30.
According to the Court, a "State’s interest in the contempt
process, through which it vindicates the regular operation
of its judicial system, so long as that system itself affords
the opportunity to pursue federal claims within it, is surely
an important interest. . . . [W]e think it is of sufficiently
great import to require application of the principles" in
Younger and its progeny. Id. at 335. After Juidice, the Court
applied the Younger framework to determine whether
abstention was appropriate when a corporation challenged
the legality of certain post-judgment procedures in Texas.
Pennzoil Co. v. Texaco Inc., 481 U.S. 1 (1987). In Pennzoil,
the Court recognized "the importance to the States of
enforcing the orders and judgments of their courts." Id. at
13.

Juidice and Pennzoil underline a state’s interest in the
proper functioning of its court system, especially its
procedures for enforcing court orders. This case implicates
the operation of the New Jersey judicial system. Contempt
hearings are an integral part of child support enforcement.
As the Supreme Court has highlighted a state’s interest in
judicial administration generally, and in the coercive effect
of contempt hearings specifically, we believe that New
Jersey’s interest here is of "sufficiently great import" to
satisfy the second prong of the Younger test. Juidice, 430
U.S. at 335.

Other Supreme Court cases provide an alternative
rationale to support our conclusion. Under the Younger
doctrine, when a state seeks to vindicate its own policies as
a party to a pending state proceeding, an important state
interest often is implicated. Although Younger itself involved
a criminal prosecution, the doctrine has been applied to
restrict federal interference with state civil proceedings. See,
e.g., Moore v. Sims, 442 U.S. 415 (1979) (state instituted a
child abuse proceeding); Trainor v. Hernandez , 431 U.S.
434 (1977) (state sought to use prejudgment attachment
procedures to collect money allegedly owed to it); Huffman,
420 U.S. 592 (state sought to close down a movie theater

                                13


through a nuisance suit). Here, New Jersey may act as a
party in state court proceedings to ensure that children
under its jurisdiction receive proper support,12 thereby
vindicating its own state policies.

C. Adequate Opportunity To Raise Federal Claims

Addressing the third predicate, "the burden on this point
rests on the federal plaintiff to show that state procedural
law barred presentation of [its] claims." Pennzoil, 481 U.S.
at 14 (quotations omitted). Plaintiffs have offered no reason
why their claims could not be fully heard by New Jersey
courts. Moreover, defendants contend plaintiffs would
encounter no difficulty adjudicating their claims in the New
Jersey courts. Defendants’ contentions are undisputed by
plaintiffs and we find no reason to doubt them. Therefore
we hold the third predicate of the Younger test is also
satisfied.
Plaintiffs have the opportunity to raise their claims in any
child support hearing and to appeal adverse decisions
through the state appellate system and eventually to the
United States Supreme Court, see 28 U.S.C.S 1257. Under
New Jersey law, child support matters are heard in the
Superior Court of New Jersey, Chancery Division, Family
Part. See N.J.R. 5:1-1, 1983 explanatory note (The "Family
Part of the Chancery Division [is] a co-equal unit of the
Superior Court . . . [and is part of] a single integrated
statewide trial court of general jurisdiction."); N.J.R. 5:1-2
(listing "actions . . . cognizable in the Family Part"). As a
consequence, there is a continuing, open and available
forum to raise any issues. Child support obligors are free to
raise their issues at any time at any child support hearing
or contempt hearing. Obligors can appeal, as of right,
decisions of the Family Part to the Appellate Division.
N.J.R. 2:2-3(a)(1) ("[A]ppeals may be taken to the Appellate
Division as of right . . . from final judgments of the Superior
Court trial divisions . . . ."); see also N.J.R. 5:1-1, 1983
explanatory note ("[A]ll rules . . . applicable to Superior
_________________________________________________________________

12. Acting as a party includes appearances by the Probation Division
seeking enforcement of orders on behalf of aggrieved individuals. See
N.J.R. 5:7-5 ("[A]n aggrieved party, or the Probation Division on that
party’s behalf, may apply to the court for relief . . . .").

                                14


Court actions continue applicable to actions cognizable in
the Family Part unless otherwise provided . . . ."). Appeal to
the New Jersey Supreme Court is available as of right or on
certification depending on the specifics of the case. N.J.R.
2:2-1.

D. No Bad Faith, Harassment or Other Extraordinary
Circumstance

Plaintiffs have not directly challenged the District Court’s
finding of no bad faith, harassment or other extraordinary
circumstance, which might make abstention inappropriate.
We have no reason to disturb the District Court’s holding.
See Middlesex County Ethics Comm., 457 U.S. at 437
(agreeing with district court’s ruling when respondents did
not challenge "the findings of the District Court that there
was no bad faith or harassment . . . and no other
extraordinary circumstances [were] presented to indicate
that abstention would not be appropriate").

Plaintiffs cite one New Jersey decision from the Appellate
Division, but it does not change our analysis. In Scalchi v.
Scalchi, the New Jersey Superior Court, Appellate Division
stated that "[t]he current law in New Jersey[does not]
require that counsel be assigned to an indigent in a support
enforcement proceeding." 790 A.2d 943, 945 (N.J. Super.
Ct. App. Div. 2002). But this statement does not
demonstrate that the New Jersey courts are resistant to
adjudicating indigent parents’ constitutional rights. We are
confident that any constitutional challenge to state court
practice would receive proper consideration by the New
Jersey courts.13
_________________________________________________________________

13. The New Jersey Supreme Court has suggested indigent defendants
should be afforded counsel "whenever the particular nature of the charge
is such that imprisonment in fact or other consequence of magnitude is
actually threatened or is a likelihood on conviction." Rodriguez v.
Rosenblatt, 277 A.2d 216, 223 (N.J. 1971). Moreover, after the New
Jersey Supreme Court decision, the United States Supreme Court
expressed a similar sentiment when it stated there is a "presumption
that an indigent litigant has a right to appointed counsel . . . when, if he
loses, he may be deprived of his physical liberty." Lassiter v. Dep’t of Soc.
Servs. of Durham County, 452 U.S. 18, 26-27 (1981).

                                15


E. Similar Cases

In concluding that abstention is appropriate here, we are
in general accord with most decisions in similar suits. At
the same time, we recognize that, because of different fact
patterns and legal rationales, there is some variance in the
opinions. In Parker v. Turner, the Court of Appeals for the
Sixth Circuit held that abstention was appropriate when
plaintiffs sought certain due process rights, including right
to appointed counsel, in future child support hearings. 626
F.2d 1. In part, the Sixth Circuit reached its holding by
relying on the principles enunciated in O’Shea v. Littleton,
414 U.S. 488 (1974).14 Parker , 626 F.2d at 8 ("We find
O’Shea controlling. The relief which the plaintiffs seek in
this case would necessarily require monitoring of the
manner in which the state juvenile judges conducted
contempt hearings in non-support cases."). While we need
not rely on the rationale of O’Shea, we agree with Parker
that federal courts should avoid improper interference with
state proceedings. See 626 F.2d at 6, 8. In Henkel v.
Bradshaw, the Court of Appeals for the Ninth Circuit held
that abstention under Younger was appropriate when a
child support "contempt proceeding [was] still pending and
[would] not be set for a hearing on the merits until the
resolution of [the federal] action." 483 F.2d at 1388 n.5.
Also, in Johnson v. Zurz, 596 F. Supp. 39, and Mastin v.
Fellerhoff, 526 F. Supp. 969, federal trial courts suggested
that abstention might normally be appropriate when
plaintiffs sought due process rights in child support
hearings. Those courts, however, held that abstention was
_________________________________________________________________

14. In O’Shea, plaintiffs sought to enjoin allegedly discriminatory state
court practices. The Supreme Court held that plaintiffs failed to allege an
actual case or controversy. 414 U.S. at 493. But even if the complaint
presented a case or controversy, the Court said it would conclude
plaintiffs failed to state "an adequate basis for equitable relief." Id. at
499. The Court suggested that any relief would impermissibly require
"unwarranted anticipatory interference in the state criminal process by
means of continuous or piecemeal interruptions of the state proceedings
by litigation in the federal courts." Id. at 500. Such interference would be
"nothing less than an ongoing federal audit of state criminal proceedings
which would indirectly accomplish the kind of interference that Younger
. . . and related cases sought to prevent." Id.

                                16


inappropriate in the particular cases due to "extraordinary
circumstances," which denied plaintiffs the ability to press
their claims adequately in state court. Johnson , 596 F.
Supp. at 44; Mastin, 526 F. Supp. at 971. 15

IV

Having decided to abstain under Younger, the District
Court stated that "[s]ince plaintiffs’ complaint will be
dismissed, plaintiffs’ requests for certification of plaintiff
and defendant classes; and for a preliminary injunction
must be denied." Pasqua, No. 00-2418, at 14. Because we
agree that abstention is appropriate, we will affirm the
denial of the motions.

V

Because all three predicates of the Younger test exist and
because there is no bad faith, harassment or other
extraordinary circumstance, which might make abstention
inappropriate, we will affirm the District Court’s judgment
to abstain. We do not intend to minimize the importance of
the rights asserted. But we believe this constitutional
challenge should be raised in the New Jersey courts.
_________________________________________________________________

15. The Court of Appeals for the Fourth Circuit also held, in an
unpublished opinion, that Younger abstention was appropriate when a
party alleged in federal court that a child custody and support award
issued in Virginia violated the First, Fifth, Thirteenth, and Fourteenth
Amendments. See Etlin v. Robb, 458 U.S. 1112 (1982) (discussing Etlin
v. Dalton, 673 F.2d 1309 (4th Cir. 1981), in dissent from denial of
certiorari).

We are aware of only one case with which there is significant discord.
In Lake v. Speziale, 580 F. Supp. 1318, the federal trial court held, after
conducting a Younger test, that abstention was not appropriate when a
plaintiff sought right to counsel and appointed counsel in future child
support contempt hearings. This decision was based on the conclusion
that there were no ongoing state proceedings at issue. Id. at 1331. But
as noted, we believe that given the unique ongoing nature of child
support orders and the particular mechanisms for monitoring, enforcing,
and modifying these orders, plaintiffs’ request for relief impermissibly
asks the federal courts to interfere with pending state proceedings.

                                17


We will affirm the District Court’s denial of plaintiffs’
motions for class certification and a preliminary injunction.

A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit

                         18
