Right to counsel

In Pasqua v. Council, 892 A.2d 663, 674 n.5 (N.J. 2006), the New Jersey Supreme Court held that the due process guarantee of the New Jersey Constitution requires the assignment of counsel to indigent parents who are at risk of incarceration at child support enforcement hearings.

In its federal due process analysis, the court noted that Lassiter created a “presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.”  However, the court distanced itself from Lassiter by observing that, “[g]enerally, the right to appointed counsel for indigent litigants has received more expansive protection under our state law than federal law.”  The court acknowledged that the right to counsel is necessary in ability-to-pay hearings because of the “high risk of . . . wrongful incarceration,” but also stressed that in other non-contempt contexts, “[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.”

The court also stated:

We can find no principled reason why an indigent facing loss of motor vehicle privileges or a substantial fine in municipal court, termination of parental rights in family court, or tier classification in a Megan’s Law proceeding 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.

The Pasqua court declined to require appointed attorneys in enforcement cases to work without pay, saying that it was certain the legislature would provide funding in response to the court’s decision.