A Proposed Solution To The “Right To Counsel” In New Jersey Domestic Violence Litigation

Jason Scott Kanterman
Tuesday, October 27, 2015

 As a Student-Intern in the Rutgers Domestic Violence Clinic, I have had the opportunity and pleasure of learning about the New Jersey Prevention of Domestic Act[1] (the “Act”), the ways in which the Act is applied by the New Jersey Courts, and the consequences the  Act has on litigants.  One of the first things I noticed during my time in court was the number of parties proceeding pro se in what is certainly a complicated legal process.  I have watched plaintiffs and defendants alike proceed to trial without even the most basic understanding of what the process would entail, let alone an understating of how to present their case in accordance with the rules of procedure and evidence.  This worried me; it worried me because of what I knew to be the consequences at stake for both parties.  The potential for severe and lasting consequences of domestic violence litigation without the assistance of counsel is the focus of this article.  This Article will begin with a presentation of the possible statutory ramifications of a Final Restraining Order (“FRO”), followed by a brief discussion of the collateral consequences that may also occur. In conclusion, the article will suggest a possible solution to the concerns of uncounseled domestic violence litigation.        

       I.         FRO Granted: Now What? Statutory Remedies

            Upon a court granting an FRO, the Act provides for numerous “remedies”[2] that may be imposed, including:

  • Restraining the defendant from subjecting the victim to further acts of domestic violence;[3]
  • Granting the plaintiff exclusive possession of the residence regardless of whether the residence is jointly or solely owned or leased by the parties, and, if it is not possible for the victim to remain in the residence, the court may order the defendant to pay the victim’s rent at a residence other than the one previously shared by the parties if the defendant is found to have a duty to support the victim and the victim requires alternative housing;[4]
  • If there are children, an order providing for parenting time with an eye toward protecting the safety and well-being of the plaintiff and minor children, which may include a requirement that third-party supervision of parenting time occur;[5]
  • An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence, which may include compensatory losses for:
·  Loss of earnings or other support—including child or spousal support;
·  Out-of-pocket losses for injuries sustained;
·  Cost of repair or replacement of real or personal property damaged, destroyed or taken by the defendant;
·  Cost of counseling for the victim;
·  Moving or other travel expenses;
·  Reasonable attorney’s fees;
·  Court costs; and
·  Compensation for pain and suffering.[6]
  • Requiring the defendant to pay punitive damages in addition to compensatory damages;[7]
  • Requiring the defendant to receive professional domestic violence counseling and, in some circumstances, to pay out of pocket for private professional counseling;[8]
  • Restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members;[9]
  • Restraining the defendant from making contact, either personally or through an agent, with the plaintiff or others, including but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or others with whom communication would be likely to cause annoyance or alarm to the victim;[10]
  • Requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members;[11]
  • Granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, an identification document, a key, and other personal effects;[12]
  • Awarding emergency monetary relief, including emergency support for minor children, to the victim and other dependents;[13]
  • Awarding temporary custody of a minor child;[14]
  • Granting any other appropriate relief for the plaintiff and dependent children;[15]
  • Requiring the defendant report to the intake unit of the Family Part of the Chancery Division of the Superior Court for monitoring;[16]
  • Prohibiting the defendant from possessing any firearm or other weapon;[17]
  • Prohibiting the defendant from stalking or following, or threatening to harm, to stalk or to follow, the complainant or any other person named in the order;[18]
  • Requiring the defendant to undergo a psychiatric evaluation;[19]
  • Directing the possession of any animal owned, possessed, leased, kept, or held by either party or a minor child residing in the household.[20]

            In addition to the aforementioned remedies, the Act provides that “the court shall grant any relief necessary to prevent further abuse,”[21] and

            The court shall bar the defendant from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S. 2C:58-3 during the period in which the restraining order is in effect or two years whichever is greater. . . .”[22]

    II.         The Problem: Harsh Remedies Imposed Without the Assistance of Counsel

            All parties involved in New Jersey domestic violence litigation face the same reality; the ramifications of pursuing an FRO have significant, lasting consequences.  For plaintiffs, being granted an FRO may provide a legal means to escape the harsh confines of an abusive relationship; alternatively, failure to successfully present their case and receive the protections of an FRO may force them back into the hell from which they are fleeing, thereby exposing them to continued physical and emotional harm.  For defendants, the imposition of an FRO may expose them to the remedies discussed above, along with the lasting social stigma of being labeled a domestic violence abuser.  For both, the ramifications and consequences are real, and to proceed without even the most basic understanding of these consequences is unwise.  I believe it is our duty to ensure that there are alternative options to proceeding pro se in such consequential litigation. One solution is to provide parties in domestic violence matters a means to pursue reduced-cost counsel if they so desire.  The law, in its present state, does not provide for such an option.[23]

            As a general rule, the assistance of appointed counsel guaranteed by the Sixth Amendment for criminal matters applies to civil proceedings, if the defendant’s personal freedom is at stake.[24]  The New Jersey Supreme Court addressed this issue in Rodriguez v. Rosenblatt, holding, “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.”[25]  The key language, “fact or other consequence of magnitude” becomes the focal point for our analysis.

            In State v. Moran, the New Jersey Supreme Court held, “[t]he loss of driving privileges for a reckless-driving conviction constitutes a consequence of magnitude that triggers certain rights, such as the right to counsel."[26]  The Court explained that the inclusion of traffic offenses affecting a license to drive was a consequence of magnitude because a license “‘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.”[27]

            Additionally, New Jersey has provided guidelines for defining “consequences of magnitude” in the municipal court context, which, if applied in the domestic violence context, would likely implicate a right to counsel.  In addition to possible incarceration and loss of driving privileges, the municipal court guidelines direct judges to consider “[a]ny monetary sanction imposed by the [municipal] court of $800 or greater in the aggregate, . . . including fines, costs, restitution, penalties and/or assessments.”[28]

            The concerns articulated by the municipal court guidelines are present in domestic violence cases.  Domestic violence litigation may result in monetary consequences of significantly greater than $800 in the aggregate,[29] and may constructively result in the loss of driving privileges—while a party may not lose their license, they may lose access to their vehicle.[30]  Additionally, defendants could lose access to their home, their pets, could face restrictions on their ability to carry a weapon for personal and work purposes, and may be exposed to any other “[consequences of the imposition of additional] relief necessary to prevent further abuse.”[31]

            As both a matter of law and of public policy, it appears that courts presiding over domestic violence matters should consider, as is already done by the municipal courts throughout the state, the global effect that remedies or sanctions will have on an individual when deciding whether counsel is necessary.

            In deciding whether parties in domestic violence matters had a right to counsel, the New Jersey Appellate Division in D.N. v. K.M., 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.”[32]  The Appellate Division appears to condition that statement however, noting that it does “not minimize the serious consequences accompanying a finding of domestic violence.”[33] These statements, considered in light of New Jersey’s “consequence of magnitude” test, appear directly at odds with each other.

            That said, I do not fault the Appellate Division for reaching the conclusion that it did.  I myself am not wholly convinced that establishing a “right” to counsel in domestic violence litigation is the most preferable or beneficial outcome from a policy standpoint.  Notwithstanding, domestic violence litigation certainly presents the possibility for “consequences of magnitude” to all involved.  I am confident that there is a better way to address and resolve the Appellate Division’s competing propositions, that there is no right to counsel in domestic violence litigation, but that the consequences of domestic violence litigation are “serious.”

  III.         What To Do: Adopt the Municipal Court Public Defender System Structure—Provide Parties with the Right To Make Application For Counsel

            Many have discussed this issue, but few have suggested viable solutions to the problem.[34]  One possible solution has been actively implemented within our state for nearly 20 years—the municipal court public defender system.[35]  Enacted in 1997, the municipal court public defender system offers indigent parties the ability to make application for reduced-cost counsel, thereby providing an avenue to representation without establishing an unfettered affirmative right to counsel.  Similarly, what I advocate for is providing indigent parties involved in domestic violence litigation—both plaintiffs and defendants—the “right” to make application for discounted counsel. Such a system will provide a means to representation, without creating an affirmative, unrestricted right to counsel.

            An application for counsel, like in the municipal court system, can be designed to carry a small monetary fee; those with insufficient financial means,[36] as can be defined by the legislature, may be awarded counsel for a fee of between $50 and $200,[37] a fee that can be waived by the judge in situations that so require.  Those with sufficient financial resources, as can be defined by the legislature, will be denied access to reduced-cost counsel, and will have to acquire private representation should they seek counsel.[38]

            Like the municipal court public defender system, the state can employ a small number of attorneys to represent plaintiffs and defendants[39] on a per diem or part-time basis,[40] their cost of employment offset by the fees collected by applicants. Additionally, by mirroring the municipal court system and allowing attorneys to maintain a private practice in addition to their part-time court service, the system may encourage participation by skilled practitioners, negating the concern that participating lawyers will lack the competency to adequately represent parties.[41]  By implementing such a system, we can provide for discounted legal services for those in need, while not implementing an unfettered right to counsel—a compromised resolution of the competing concerns articulated in D.N. v. K.M.

            In many ways, a review of the theories behind the municipal public defender system supports implementation of a similar system in domestic violence litigation.  The legislature, in implementing the municipal court system, explicitly found:

  • Municipal public defenders are a critical component of New Jersey’s system for the administration of justice and the effective, fair and equal representation of the poor.[42]
  • As the New Jersey Supreme Court stated in Rodriguez v. Rosenblatt[43], “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.”[44]
  • The appointment of municipal public defenders increases the efficiency and effectiveness of the system and the professionalism of the municipal courts.[45]

            Each concern enumerated by the legislature with regard to municipal court practice  is present in the domestic violence context.

   IV.         Conclusion

            By implementing a “municipal public defender–like” system in the domestic violence context, we can resolve the Appellate Division’s competing concerns: hesitation to find a legal “right” to counsel and recognizing the seriousness of domestic violence litigation.  The legislature has an already existing structure that appears easily adaptable to this context, and the financial burden of implementing such a system appears manageable. While not perfect, the solution appears to be a step in the right direction.

* Business Editor, Rutgers University Law Review; Candidate for Juris Doctor, Rutgers Law School, 2016. With much appreciation to both Professor Ruth Anne Robbins and Professor Victoria Chase, whose continued patience, encouragement, and support were invaluable throughout the writing process.

[1]N.J. Stat. §§ 2C:25-17–2C:25-35.

[2] While the term “remedy” is used, the difference between remedial sanctions and affirmative fines and penalties—an important difference in determining whether counsel should be appointed—appears to be a narrow difference.  While it appears that the legislature expected the remedies be used to protect and benefit victims as opposed to punish offenders, in many ways, the solutions provided both benefit victims and punish offenders. I encourage readers to consider the effect each remedy has on both parties to visualize this reality.

[3] N.J. STAT. ANN. § 2C:25-29 (b)(1) (West 2012).

[4] § 2C:25-29(b)(2) (emphasis added).

[5] § 2C:25-29(b)(3) (emphasis added).

[6] § 2C:25-29(b)(4) (emphasis added).

[7] § 2C:25-29(b)(4).

[8] § 2C:25-29(b)(5).

[9] § 2C:25-29(b)(6).

[10] § 2C:25-29(b)(7).

[11] § 2C:25-29(b)(8).

[12] § 2C:25-29(b)(9).

[13] § 2C:25-29(b)(10).

[14] § 2C:25-29(b)(11).

[15] § 2C:25-29(b)(14).

[16] § 2C:25-29(b)(15).

[17] § 2C:25-29(b)(16).

[18] § 2C:25-29(b)(17).

[19] § 2C:25-29(b)(18).

[20] § 2C:25-29(b)(19).

[21] § 2C:25-29(b) (emphasis added).

[22] Id. (emphasis added).

[23] See D.N. v. K.M., 216 N.J. 587, 594 (2014) in which New Jersey Supreme Court Justice Barry T. Albin wrote an impassioned dissent on the New Jersey Supreme Court’s decision to deny certification on a case which, in large part, concerned itself with the appointment of counsel in domestic violence matters.

[24] D.N. v. K.M., 429 N.J. Super. 592, 600­–01 (Super. Ct. App. Div. 2013) (citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981)) (noting the right to appointed counsel “has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation”).

[25] 277 A.2d 216, 223 (N.J. 1971) (emphasis added).

[26] 997 A.2d 210, 219 (N.J. 2010).

[27] Id. (quoting State v. Hamm, 577 A.2d 1259 (N.J. 1990), cert. denied, 499 U.S. 947 (1991)). See also State v. Hrycak, 877 A.2d 1209, 1215–16 (N.J. 2005) (holding defendants in DWI cases have a right to counsel because they face a “consequence of magnitude”). See D.N. v. K.M., 429 N.J. Super. at 601.

[28] See Guidelines for Determination of Consequences of Magnitude in Municipal Court, Second Appendix to Part VII to N.J. CT. R. 7:3–2(b) (September 1, 2014), available at  https://www.judiciary.state.nj.us/rules/r7-2nd_appendix.htm (last visited October 25, 2015).

[29] See N.J. Stat. § 2C:25-29(b) (West 2012).

[30] See § 2C:25-29(b)(9).

[31] § 2C:25-29(b).

[32] 429 N.J. Super. at 606.

[33] Id.

[34] See Ruth Anne Robbins & Brian J. Foley, A Cautionary Tale Showing the Need for a Civil Right to Counsel in Domestic Violence Cases, RUTGERS J.L. & PUB. POL’Y REGION IN REV. BLOG (October 15, 2015), http://rutgerspolicyjournal.org/cautionary-tale-showing-need-civil-right...

[35] Codified at N.J. STAT. ANN. § 2B:24 (West 1999).

[36] For reference, see § 2B:24-9.

[37] See § 2B:24-17(a) (“A municipality may require by ordinance a person applying for representation by a municipal public defender or court approved counsel to pay an application fee of not more than $200.00, but only in an amount necessary to pay the costs of municipal public defender services.  In accordance with guidelines promulgated by the Supreme Court, the municipal court may waive any required application fee, in whole or in part, only if the court determines, in its discretion, upon a clear and convincing showing by the applicant that the application fee represents an unreasonable burden on the person seeking representation.  The municipal court may permit a person to pay the application fee over a specific period of time not to exceed four months.”).

[38] See § 2B:24-9.

[39] Employing attorneys on both sides can help avoid conflicts of interest.

[40] A detailed analysis of the economic feasibility of this system is beyond the scope of this article. That said, like the municipal public defender system, attorneys can be employed at part-time rates. See § 2B:24-5 (“[a] municipal public defender shall receive compensation, either on an hourly, per diem, annual or other basis as the municipality may provide.”).

[41] See § 2B:24-4(f) (“[t]he municipal public defenders [may] represent private clients in any municipality, including the municipality where they act as a municipal public defender.”).

[42] § 2B:24-1(a) (emphasis added).

[43] 58 N.J. 281, 295 (N.J. 1971).

[44] § 2B:24-1(b) (emphasis added).

[45] § 2B:24-1(c) (emphasis added).