by Bob Vinik –
Original Writ to Scotus –
Editors Note: For those fighting in the Anti-Family Courts against biased Judges – as is usually the case if you are the Male in a divorce – this may be of use.
Resisting & rebelling against Judicial oppression and tyranny has a very long history. It has existed throughout the ages. It has existed in America and still exists right now, as of 3.12.2016. The issue is that the Judges refuse to uphold their Oaths to the Constitution and its plain an ordinary, clear and concise meaning.
They are activist Judges that left to their own devices would turn America into their own controlled State Of Tyranny.
The rebels are usually referred to as either Pro Se or they refer to themselves as ‘In Propria Persona Sui Juris’ – = In My Own Proper Person.
Those that fight against a corrupt judiciary today reap retaliation and go unrewarded and receive no recognition, except here at the
NationalWritersSyndicate.com. Yet, they fight on and it usually unrecognized by the general public that actually benefits from the efforts of the few courageous warriors.
Mr. Bob Vinik is such a person whom I have had the fortune to meet and work with.
This following 60-page Writ was filed in the SCOTUS in 1991 and yet is still relevant today.
Submitted by an associated of Vinik
Mr. Bob Vinik allowed me to review this writ to the Untied States Supreme Court (SOTUS) that was submitted in 1991 (This writ is about 25 years old.)
What is amazing is that Mr. Vinik submitted this writ in 1991 and it took SCOTUS 20 years to reach some of the same conclusions. Mr. Vinik is not a lawyer which makes one wonder about all those statutes related to the Unauthorized Practice of law [UPL]. In Florida, he would have been locked up for UPL for assisting others even though he was not paid for his efforts.
A summary of this writ of certiorari – it has some interesting points and what is not surprising is that some of the positons taken in it are now followed by decisions of the Supreme Court of the United States (SCOTUS).
At this time, SCOTUS has determined that a person should not be put in jail without first having an ability to pay hearing. See Rogers v. Turner 564 U.S. __ (2011) is a case decided by the United States Supreme Court on June 20, 2011, that held that a state must provide safeguards to reduce the risk of erroneous deprivation of liberty in civil contempt cases such as child support cases. The decision, however, stopped short of requiring that a state provide counsel to indigent defendants in civil contempt child support cases in all cases. In an earlier case Bearden v. Georgia, 461 U.S. 660 (1983), the Court determined that a person who could not pay a fine should not be jailed for failure to pay after a reasonable hearing.
Many states also require that when liberty is at issue, then the courts must assign counsel. The New Jersey Supreme Court decided this issue in 2006, 15 years after it was raised by this writ. See Pasqua v. Council 186 N.J. 127, 892 A.2d 663
N.J.,2006. March 08, 2006 (Approx. 19 pages).
In almost all instances, contempt is applied against fathers but not mothers. That still appears to violate the 14th amendment.
Many of the other questions presented raise novel issues that many courts refuse to address. (I am sure that Justice Scalia would have approved of many of these questions as an originalist.)
In several instances, SCOTUS has questioned local governments that lock individuals up when they cannot pay debt or cannot afford the trip to the courthouse. Recently, *2016, January, the Justice department has brought suit against several cities based upon practices that lock individuals up when they were not able to afford fines or even the trip to court.
This is interesting because every now and then, SCOTUS has to remind state courts that they have to follow decisions by SCOTUS. See James v. City Of Boise, Idaho, Et Al., 577 U. S.—– (2016), the Supreme Court once again expressed that state courts must follow the rulings of the Supreme Court when it relates to the interpretation of the constitution and federal law. This issue is not new and the court went back in history for one of the earlier cases that supported this legal theory. The Court said:
. As Justice Story explained 200 years ago, if state courts were permitted to disregard this Court’s rulings on federal law, “the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of things would be truly deplorable.” Martin v. Hunter’s Lessee, 1 Wheat. 304, 348 (1816).
It appears that Mr. Vinik understands the deficiencies in state court systems that fail to follow or take judicial notice of higher authorities. That is one of the basis of Stare Decisis. What happens when state courts use stare decisis but ignore higher authorities? It happens all the time without any consequences. What happens when stare decisis is overturned but it takes a very long time? See Plessy v Ferguson, and Brown v Board of education. This is just one example where courts have reversed themselves based upon the impact of bad, incorrect determinations by other courts. Stare Decisis is a legal rule that in my opinion is used to support fictional determinations by many lower courts and even some of the higher federal courts and the highest state Courts.
Frequently, courts fail to write down their opinions or the reasons for their opinions so it is very difficult for higher courts to determine why a particular decision was made. I have been involved in several states where the facts justifying a decision appear to be fictional. That is pretty bad, but it is worse when the appellate courts refuse to review many appeals. This is especially so when the party bringing the action is a non-attorney. As an example, the State of Florida uses a “per curium affirmed” decision in more than 60 % of all appellate cases. This type of determination results in a denial by the Florida Supreme Court to review a decision. Imagine what a lawyer has to tell a client. After charging 15,000+ for an appeal, the court found that his appeal did not deserve an opinion. The Florida Courts are not unique in this action. However, Florida issues at least three times as many per curium affirmed decisions than any other state.
When I went to law school, one of my professors told the class that one of his jobs as an appellate clerk was to determine how actions could be thrown out on procedural grounds. He was implying that federal appellate courts want to reduce their workload. Sometime in the future, modern technology will allow courts to save papers from both sides of a case. Reflecting back, one can see how judicial fiction results in bad determinations that are impossible to reverse in the future.
Lots of judges make bad decisions and these determinations result in the majority of individuals questioning our entire legal system. (Hopefully sometime in the future, the accuracy of fMRI lie detector tests will improve to about 90% and the abuses by prosecutors and hanging judges can be reversed before individuals serve sentences that are unwarranted. (See Connick v. Thompson, 563 U.S. ___ (2011)). In Connick, the Majority appeared to use a fictional account to reverse a large jury award that was based upon prosecutorial misconduct. The dissent in this 5-4 case suggested that the majority failed to account for repeated prosecutorial misconduct. Frequently, in state courts where judges are elected, many judges appear to rule in favor of the government entities to protect them.
(The SCOTUS only hears 65-85 cases a year. The court says that they only receive about 10,000 writs or requests for review. However, that is a fiction because many writs are thrown out based upon form or procedural errors. I would estimate that the odds of a non-lawyer’s case being heard by SCOTUS is greater than 1/40,000.
In my opinion, many of the requests that are rejected are because state courts fail to follow past rulings of the SCOTUS. The SCOTUS does not want to issue a ruling that is already contained in an earlier case. The result is that many state determinations that violate the rulings of SCOTUS are never reviewed and/or overturned.
One of the issues raised by Vinik is the right to counsel if one is threatened with jail based upon inability to make child support payments. This type of process certainly does not enable the Respondent to do any type of work. Additionally, it adds a debt to the county and State when they have to pay for the “room and board” of the parties locked in jail.
There are so many issues with this court practice – first there is no civil Gideon available to assign counsel. Next, it places a respondent in a position where the court places a burden on the respondent where he must beg, borrow or steal money or borrow it from others to pay an unjust amount.
In other states, when child support is excessive and a party cannot pay it based upon disability and/or public subsidies, it prevents a party from claiming a rebuttable presumption as is required by the controlling federal statute. Here, again, it appears that when child support is due, the state courts throw out the Supremacy Clause and controlling federal law that must be used under the IVD program, a federal program. See Matter of Rose v. Moody, 83 N.Y.2d 65 (1993), 629 N.E.2d 378, 607 N.Y.S.2d 906.
It appears that the highest court in New York State said that New York must follow the controlling legislation and that the Federal determination is controlling (See the Supremacy Clause, Article VI. ¶ 1.)
At this time in New Jersey, courts and the Sheriff’s department issued and enforced bench warrants. Individuals were arrested and jailed without first having an ability to pay hearing. If this sounds unconstitutional, it is because most likely it is unconstitutional. It is a way for the courts to extort money from the friends and relatives of those who were arrested. It also allowed the Sheriff’s department to make a claim for reimbursement by the federal government for holding those who could not afford to pay in jail. If it looks like a rat, and walks like a rat, and smells like a rat, guess what?
When reimbursement is not justified, it is possible that a smart attorney could bring a false claims action against state actors who function under color of law. See The False Claims Act (31 U.S.C. §§ 3729–3733, also called the “Lincoln Law”
Other issues raised in this writ include the issue of classifying the non-payment of debt as actionable as a contempt of court. It is classified as criminal and appears to be sex based when the large majority of awards of custody go to women over men. This frequently is done using either the best interest of the child or the tender years doctrine.
There are many other interesting aspects that are raised in this writ. Sometimes, as a non-lawyer, it is difficult to assess what the Supreme Court is looking for when selecting cases for review. It is even more difficult for a non-attorneys who has been exposed to so many errors in law and procedure that it is frequently difficult to narrow the questions presented to no more than three.
The Supreme Court is frequently looking to review actions where there are splits in decisions from appellate courts. It may also be looking for very narrow specific questions to review. This action raises interesting issues like how can poor people have an attorney appointed who will take on a social issue that contains a class action.
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
xxxxxxxxxxxxxxxxxxxx, On Behalf Of Himself
And A Class Of Persons Similarly Situated
Middlesex County Probation Department And
Lymon O’Neill, In His Official Capacity As
Chief Probation Officer, Middlesex County,
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Robin Kenneth Vinik, Pro Se
and Propria persona
3424 Route 27, Apt. 83
Kendall Park, N.J. 08824
QUESTIONS PRESENTED FOR REVIEW
1. Whether an indigent accused of nonpayment of support debt may be threatened with the loss of liberty or may lose his liberty without benefit of court appointed counsel.
2. Whether incarceration can be imposed as a punishment for nonpayment of debt for the expressed purpose of collecting that debt, not withstanding the fact that said incarceration is claimed to be for contempt of court.
3. Whether a punitive State Statute that is arbitrary, and is not capable of strict construction, and is enforced only against a sex based class of persons, violates the Due Process and Equal Protection clauses of the 14th Amendment.
4. Whether the right to trial by jury is guaranteed by the Fifth Amendment whether the case is civil or criminal in nature and incarceration for an indeterminate period is contemplated to secure payment of a support debt.
5. Whether the Seventh Amendment right to estoppel of a re-trial of fact is maintained if a jury trial was not had in the first trial and a jury trial was not available.
6. Whether the right to invoke the fifth amendment prohibition against double jeopardy is maintained if a jury trial was not had in the first trial and a jury trial was not available.
7. Whether the right to liberty may be threatened or taken without due process for the purpose of collecting a child support debt.
8. Whether the right to appeal may be denied by not entering Court decisions on the record thus foreclosing right of appeal to a higher Court.
Middlesex County Probation Department And Lymon O’Neill, In His Official Capacity As Chief Probation Officer, Middlesex County,
TABLE OF CONTENTS
OPINIONS BELOW 2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 3
STATEMENT OF THE CASE 4
REASONS FOR GRANTING THE WRIT 11
Reason 1 13
Reason 2 18
Reason 3 23
Reason 4 27
Reason 5 30
Reason 7 32
Reason 8 34
NEW QUESTION NOT PRESENTED BELOW 35
Orders of dismissal from Federal District Court. . . . . . . . . . . . . . A1
July 2, 1895 Order of N.J. Superior Court. . . . . . . . . . . . . . . . . A2
January 16, 1990 Motion and letters. . . . . . . . . . . . . . . . . . . . A3
January 17 & February 21,1990 Letters requesting reappointment of Counsel. A4
Secret Contract between Sheriffs, County, DEA . . . . . . . . . . . . . . A5
Statement of Enforcement Collections . . . . . . . . . . . . . . . . . . . A6
Newspaper Articles of Mass Arrests and Intent to Continue. . . . . . . . . A7
Appeal of Erich Sturn. . . . . . . . . . . . . . . . . . . . . . . . . . . A8
TABLE OF AUTHORITIES
Argersinger v Hamlin, 407 US 25; 92 S Ct 2006;
32 L Ed 2d 530 (1972) 13-15, 18, 33, 34
Bloom v. Illinois, 88 S.Ct. 1477 (1968) 29
Colson v. Joyce, 646 F.Supp. 102 (D .Me. 1986) 18, 24, 33
Craig v. Boren, 97 S.Ct. 451; 429 U.S. 190 (1976) 25
Dimick v. Schiedt, 293 US 474 (1935); 304 US at 464 33
Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963) 13
Harris v. McRae, 100 S.Ct. 2671, 448 U.S. 297, 65 L.Ed.2d 784, rehearing denied 101 S.Ct. 39, 448 U.S. 917, 65 L.Ed.2d 1180 (1980) 3
In re Buehrer, 50 N.J. 501; 236 A.2d 592 (1967) 27
Johnson v Zurz. 596 F Supp 39 (ND Ohio, 1984) 14
Johnson v. Zerbst, 304 U.S. 458 (1937) 17
Lake v Speziale, 580 F Supp 1318 (D Conn, 1984) 14, 16
Lassiter v Durham Co. North Carolina, Dep’t of Social
Services, 452 US 18, 24; 101 S Ct 2153; 68 L Ed 2d 640 (1981) 14
Mann v. Hendrian, 871 F.2d 51 (U.S. Ct. App. – 7th Cir. 1989) 33
Mastin v Fellerhoff, 526 F Supp 969 (SD Ohio, 1981) 14
McKinstry v Genesee Co Circuit Judges. 669 F Supp 801 (ED Mich, 1987) 14
N.J. Dept. of Health v. Roselle, 34 N.J. 331, 169 A.2D 153 (1961) 19
Offut v. United States, 348 U.S. 11, 14. 29
Orr v. Orr, 99 S.Ct. 1102, 440 U.S. 268 (1979) 24
Pierce v. Vision Investments, Inc., 765 F.2d 539 (U.S. Ct. App. 5th Circ. Texas – 1985) 22
Ridgway v. Baker, 720 F.2d 1409 U.S. Ct. App. 5th Circ. Texas – (1983) 17
Rochin v. People of Cal., 72 S.Ct. 205, 342 U.S. 165, 96 L.Ed. 183, 25 A.L.R.2d 1396 (1952) 24
Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) 3
Sanchez v. Mondragon, 858 F.2d 1462 (U.S. Ct. App. – 10th Cir. 1988 18
Skinner v. White, 505 F.2d 685 (1974) 22
State of New Jersey v. Madewell, 63 N.J. 506 (1973) 21
U.S. v. Mitchell, 246 F. Supp. 874, 877 (1965) 16
U.S. v. Rylander, 714 F.2d 996 (1983); 103 S.Ct. 1548 (1983) 20
Walker v. McLain, 768 F.2d 1181 (10th Cir. U.S. Ct. App. (1985) 18, 34
Wise v. Bravo, 666 F.2d 1328 (1981) 3
Yick Wo v. Hopkins, 118 U.S. 356 (1886) 12, 37
Young v Whitworth, 522 F Supp 759 (SD Ohio, 1981) 14
28 U.S.C. § 1331 2
28 U.S.C. § 1343(3) 2
28 U.S.C. § 2007(a) 21
28 U.S.C. § 1254(1) 2
28 U.S.C. § 1291 2
Amendment 5 of the Constitution 29, 30, 32, 37
Amendment 6 of the Constitution 13, 17, 18
Amendment 7 of the Constitution 30, 32
Amendment 9 of the Constitution 3
Amendment 13 of the Constitution 24
Amendment 14, of the Constitution 3, 12-14, 17, 20, 23, 24, 27, 29, 32, 33
N.J. 2A:10-5 19, 20, 32
N.J. 2C:62-1(a) 20, 23
New Jersey Constitution, Article 1, Paragraph 9 28
New Jersey Constitution, Article 1, Paragraph 13 3, 21
Family Law Practical Skills Series, ICLE 35
WEST NEW JERSEY PRACTICE Vol. 4A 19
WEST NEW JERSEY PRACTICE Vol. 3 35
IN THE SUPREME COURT
UNITED STATES OF AMERICA
OCTOBER TERM, 1991
Robin Kenneth Vinik, On Behalf Of Himself
And A Class Of Persons Similarly Situated
Middlesex County Probation Department And
Lymon O’Neill, In His Official Capacity As
Chief Probation Officer, Middlesex County,
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Petitioner, Robin Kenneth Vinik, respectfully prays that a writ of certiorari issue to review the judgement-order of the United States Court of Appeals for the Third Circuit affirming the dismissal of the complaint of petitioner Vinik in the United States District Court for the District of New Jersey.
This judgment-order is in direct conflict to well settled case law of other Districts, Circuits and this Court for three of the issues raised:
`RIGHT TO COUNSEL’ and `IMPRISONMENT FOR DEBT’ and `RIGHT OF APPEAL’.
The other issues raised are unsettled and are important questions of federal law that should be settled by this Court.
Neither the District Court nor the Third Circuit issued an opinion with their respective orders to dismiss and to affirm the dismissal. The District Court’s orders of dismissal and the Third Circuit’s the Judgement-Order of affirmation appears in appendix A1
The United States District Court, for the District of New Jersey, had jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3).
The United States Court of Appeals had jurisdiction pursuant to 28 U.S.C. § 1291 to hear the appeal of the decision of the Federal District Court. A timely motion for appeal was filed in the Court of Appeals for the Third Circuit. The Court of Appeal’s Judgement-Order in this matter was filed on January 28, 1991.
This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). Therefore this petition is within the jurisdiction of this Court and it is timely.
The Federal District Court questioned jurisdiction of the federal judiciary in matters that are from the states “family court” systems. However, this issue of parental rights as a protected liberty interest was settled by this Court:
State’s power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial and visitation rights, is subject to scrutiny by federal judiciary within reach of due process and/or equal protection clauses of Fourteenth Amendment. . . Fourteenth Amendment applies to states through specific rights contained in first eight amendments of Constitution which declare fundamental personal rights. . . Fourteenth Amendment encompasses and applies to states those preexisting fundamental rights recognized by Ninth Amendment. The Ninth Amendment acknowledged the prior existence of fundamental rights when it said: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Constitutional Amendment IX. In a long line of decisions, the Supreme Court has recognized that matters involving marriage, procreation, and the parent-child relationship are among those fundamental “liberty” interests protected by the Constitution. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), was recently described by the Supreme Court as founded on the “constitutional underpinning of . . . a recognition that the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life.” The noncustodial divorced parent has no way to implement the constitutionally protected right to maintain a parental relationship with his child except through visitation. To acknowledge the protected status of the relationship as the majority does, and yet deny protection under Title 42 U.S.C., section 1983, to visitation, which is the exclusive means of effecting that right, is to negate the right completely. Wise v. Bravo, 666 F.2d 1328 (1981) See also: Harris v. McRae, 448 U.S. 297, 312, and n. 18, 100 S.Ct. 2671, 2686 (1980)
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
New Jersey Constitution, Article 1, Paragraph. 9 . . . . . . Page
The right of trial by jury shall remain inviolate; but the legislature may authorize the trial of civil causes by a jury of six persons when the matter in dispute does not exceed fifty dollars. The legislature may provide that in any civil cause a verdict may be rendered by not less than five-sixths of the jury. The legislature may authorize the trial of the issue of mental incompetency without a jury.
New Jersey Constitution, Article 1, Paragraph 13 . . . . . . Page
No person shall be imprisoned for a debt in any action, or on any judgement founded upon contract, unless in case of fraud. Nor shall any person be imprisoned for a militia fine in time of peace.”
N.J. 2A:10-5 . . . . . . . . . . . . . . . . . . . . . . . . Page
NJ 2A:10-5 CIVIL CONTEMPT “Civil contempt is a MISDEMEANOR. Punishment in summary prosecution for contempt may not exceed six(6) months imprisonment or $1000 fine or both, subject to statutory probation provisions.”
N.J. 2C:62-1(a). . . . . . . . . . . . . . . . . . . . . . . Page
N.J. 2C:62-1(a) “Any time after a sworn complaint is made charging an offense under 2C:24-52 and BEFORE TRIAL, the court may enter such temporary order as may seem just, providing for the support of the spouse or children, or both pendente lite, and may PUNISH A VIOLATION of such order as for contempt 3.” (emphasis added).
STATEMENT OF THE CASE
Petitioner Vinik has been unable, due to changed financial circumstances to pay the entire amount due under a support order. The changes in his financial circumstances are due to a physical disability preventing him from engaging in gainful employment. He is residing in United States Government funded housing for the disabled and the elderly at no personal cost. His four motions, one with an attorney and three pro se, to modify the Support Order to comply with the guide lines established by the Supreme Court of New Jersey were denied by the Superior Court of New Jersey, Chancery Division. These denials contradicted, and were far in excess of, the support amount guide lines established by the New Jersey State Supreme Court for use by the Superior Courts of New Jersey in setting support amounts.
On March 27, 1984 a hearing was held before the Honorable James A. Kennedy, on the question of the ability of petitioner Vinik to comply with the Support Order. At the time of this hearing, petitioner Vinik requested counsel and was unrepresented by counsel and was unable to afford counsel due to his indigence. Judge Kennedy denied petitioner Vinik’s request for court appointed counsel.
On March 28, 1984, Judge Kennedy ordered that petitioner Vinik pay $1,000 arrearages on or before May 5, 1984 and thereafter $65.00 per week plus $20.00 on arrearages.
Since the March 28, 1984 order, petitioner Vinik has made support payments of approximately $1645.00.
On or about January 23, 1985 a bench warrant was obtained on an ex parte basis. And, in the resultant hearing an order was obtained by the respondents that the respondents were to make ex parte application for the issuance of a bench warrant if petitioner did not make support payments for three weeks.
On or about May 31, 1985, petitioner Vinik was incarcerated in the Middlesex County jail pursuant to a warrant, which was obtained on an ex parte basis by the respondent Middlesex County Probation Department because of the arrearages under the Support Order. Petitioner Vinik was then ordered imprisoned for contempt4 at the resultant hearing without benefit of counsel. Petitioner Vinik could neither afford counsel nor to make the ordered payments. He requested the court to appoint counsel but none was appointed.
At the time the aforementioned arrest warrant was issued and petitioner Vinik was incarcerated and during the resultant hearing of petitioner Vinik’s contempt, petitioner Vinik was unrepresented by counsel and was unable to afford counsel due to his indigence. The only persons in the court for the hearing were the Judge, the respondent probation officer, petitioner Vinik, and the sheriff who took petitioner Vinik to jail. The hearing lasted two minutes.
On or about July 2, 1985 petitioner Vinik was released from custody, although he made no payment and, although his assertion of indigency was still uncontroverted. He was ordered to pay $65.00 per week plus $20.00 per week toward arrears on the Support Order. The order of release further provided that respondent Middlesex County Probation Department may make an ex parte application for a bench warrant if petitioner missed three payments. A copy of this order is attached hereto as Appendix A2.
Due to lack of income and financial resources, petitioner Vinik has been unable to comply with the payment requirements of the order of July 2, 1985.
In or about September or October 1985, the respondents obtained an arrest warrant for petitioner’s arrest for his failure to make payment under the Support Order. On information and belief, the respondents rescinded that arrest warrant when petitioner Vinik began receiving public assistance in October 1985.
Petitioner Vinik was removed from public assistance in February 1986. It was reported by petitioner Vinik’s ex-wife that he was not disabled.
On July 1986 petitioner was again arrested and brought before the Superior Court of New Jersey for non-support on an ex parte motion by the respondents. Petitioner Vinik again requested an attorney. His request was again denied, and he was remanded to the County Jail. After two months of jail and being brought back to the court on two week intervals and each time requesting a court appointed attorney, and each time being denied, petitioner Vinik petitioned the Federal District Court for a WRIT OF HABEAS CORPUS. His petition in forma pauperis was assigned to Honorable H. Lee Sarokin and Middlesex County was allowed twenty days to respond. During this time petitioner was released and the County argued that the Habeas Corpus was moot. Petitioner Vinik argued, persona propria, that the threat of jail was still imminent and it was not moot. The Federal Court did not consider it moot. The Federal Court reiterated its request for a response from the county, advising that it would issue the Habeas Corpus if the county didn’t respond promptly and properly. The County stonewalled by not responding until finally a pro bono attorney was appointed. The County repeated its requested dismissal arguing, again, that the application for the Great Writ had become moot. This was the only assignment of pro bono counsel to an accused of contempt for non-payment of support in the Superior Court of New Jersey. And it was only accomplished under threat of a Habeas Corpus action in the Federal Court. The stated purpose was to thwart the aforementioned Habeas Corpus. There was no intent to insure the Constitutional rights of petitioner Vinik. The Habeas Corpus action then indeed became moot and was justly dismissed without prejudice. It is now proved no longer moot.
In the subsequent hearing, with assigned counsel, petitioner Vinik was able to prove to the Court’s satisfaction his disability and inability to earn support as ordered. Petitioner was released and no further action was taken until the following.
On January 16, 1990 Respondent O’Neill caused his department to enter a Motion for Enforcement of Litigants Rights before the Superior Court of New Jersey, Chancery Division. A copy of this motion was served on the petitioner Vinik with a cover letter and printed form letter with the signature line of the respondent LYMON O’NEILL. This document advises petitioner Vinik that:
“ACCORDINGLY, IF YOU ARE UNABLE TO PAY THE FULL ARREARAGE WHEN YOU APPEAR IN COURT YOU SHOULD ANTICIPATE THE POSSIBILITY THAT YOU MAY BE IMMEDIATELY ARRESTED AND PLACED IN THE COUNTY JAIL.”
A copy of the motion and letters are attached hereto as Appendix A3.
This document published by respondent is clearly indicative of respondent’s and those acting in concert’s willful abuse of the innocent (“unable to pay”) members of the petitioner class’ Constitutional Rights as well as the Constitutional Rights of the unwilling and recalcitrant, under color of State law, statute, regulation, custom or usage.
On January 17, 1990 petitioner Vinik sent Judge Berman, the assigned Superior Court Judge, a request for a replacement of his Court Appointed Lawyer. On January 31, 1990 petitioner telephoned Judge Berman’s Chambers and was told by the Judge Berman’s secretary that the Judge would not reassign a pro bono attorney. The secretary further advised petitioner that his letter was forwarded to another department. A copy of the letter is attached hereto as Appendix A4.
Respondent and those acting in concert have adopted and carry out a policy and practice of causing: a. Court proceedings without due process, many ex parte, that result in jailing, and: b. Ex parte arrest warrants, seeking to incarcerate and incarcerating indigent persons who are under orders to pay child support even though such persons have been unable to pay the ordered amounts and have been unable to afford counsel. Pursuant to this practice and policy respondent and those acting in concert with respondent intend to prosecute and obtain an arrest warrants in ex parte hearings and to move for incarceration of petitioner Vinik and members of the petitioner class in ex parte hearings and thereby cause their incarceration without due process. The respondent and those acting in concert have announced their intent to continue their unconstitutional practice in the press. They admit that they regularly arrest and imprison those not in arrears by error and have not taken any action to abate unconstitutionally arresting the innocent and guilty alike(see appendix A7).
The amount of arrears in the aforementioned motion to enforce litigants rights before the Superior Court includes Part of the amount already litigated in 1984 and 1986.
The January 12, 1990 Motion by respondents states that the arrears as of January 12, 1990 is $21,793.97. However, the number of calendar weeks from the $1,000.00 plus $65.00 per week October 5, 1984 Order Quoted is 274. The most arrearages for that time (274 weeks) possible is 274 weeks X $65.00 = $17,810.00 plus the $1000.00 ordered. The amount in excess of the court order, if no payments were made, is $2983.97. This is another instance of respondent and those acting in concert unconstitutionally causing the re-litigation of arrears that were litigated and settled in the previous hearings referred to above.
On 5 February, 1990 petitioner Vinik filed a Class Action Civil Rights complaint with the Federal District Court in forma pauperis for redress of his denial of due process. Petitioner Vinik requested appointment of counsel to represent him in The Federal District Court. The Federal District Court entered the complaint on the docket and caused the Federal Marshal to serve the complaint on the respondent, Middlesex County Chief Probation Officer Lymon O’Neill, but did not appoint counsel. Petitioner Vinik requested emergent relief from the Federal District Court, for the appointment of an attorney and a stay of the Superior Court of New Jersey hearing. An attorney was appointed by the state Court three days before the scheduled Federal District Emergent motion hearing. It was a deliberate move to forestall the complaint and to make it moot.
It is apparent that respondents intend to continue with business as usual and will do the least possible to enforce the Constitutional rights of the petitioner Vinik and members of the petitioner class and only when threatened by review from the Federal Courts. Petitioner Vinik did not have an appointed attorney in Federal District Court. The Federal Court Judge, Hon. H. Lee Sarokin, said in court that his Court lacked jurisdiction and that Petitioner Vinik must exhaust state court remedy. Petitioner Vinik stated there were no other state court remedy. The Federal District Court denied petitioner Vinik’s motion for emergent relief and indicated that the Court lacked jurisdiction. The order, submitted by the Court on February 28, 1990 denied petitioner Vinik’s motion, and on its own motion, dismissed the complaint without prejudice.
The Federal District Court did in fact assert its jurisdiction by its very order of dismissal. If the Court lacked jurisdiction it could not establish whether to dismiss with or without prejudice. To complicate this even more the Federal District Court Dismissed the already dismissed case again on March 19, 1990.
On April 9, 1990 petitioner Vinik appealed to the United States Court of Appeals for the Third Circuit. The Court of Appeals issued a Judgement-Order affirming the District Court’s order on January 28, 1991.
REASONS FOR GRANTING THE WRIT
The eight underlying reasons for granting certiorari are enumerated below individually. Three of those reasons were decided in conflict with other Circuits of United States Courts of appeals and this court. The other reasons are important questions of federal law that should be settled by this court. Moreover, the fundamental reasoning for granting the Writ is that the eight individual reasons together are allegorical of a violative and unlawful attitude and practice of consummate indifference of the Constitutional Rights due petitioner Vinik and members of the petitioner class by the respondents and those acting in concert. In light of this broad based disregard of petitioner Vinik’s and the petitioner class’s Constitutional Rights by the respondents and those acting in concert, petitioner asks this Court to consider this petition in toto as exemplary of prejudicially based denial of Constitutional Rights as well as eight individual Constitutional Rights violations. The conspiratorially prejudicial treatment of petitioner Vinik and members of the petitioner class is exemplified by the pervasive disregard of their Constitutional Rights. The state support enforcement enterprise earns over one hundred million dollars a year under a secret contract. A copy of the contract in its unsigned form is attached in appendix A5.5
The attitudes of a government or Court system are difficult to document. It is by inference based on its sagacity and the observance of it’s paradigm of dogmatic prejudice that we are able to discern that a court acts with an evil eye or heavy hand.
Laws and court procedures that are “fair on their faces” but administered “with an evil eye or a heavy hand” was discriminatory and violates the Equal Protection Clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356 (1886)
In the instant case, even though the state court has temporarily abated the petitioner’s probability of facing a hearing that may result in incarceration without benefit of counsel the finding of contempt has not been rescinded, and he faces possible adverse consequences and a repetition of the previous adverse consequences. Where a court’s judgment adverse to a defendant may have collateral legal consequences, the issue is not necessarily moot unless it is shown that there is no possibility of any collateral legal consequences. But alternatively a court may decide a moot case or determine a moot question where it is in the public interest, as guidance for future cases.
Petitioner Vinik argued before the Court of Appeals for the Third Circuit that three issues had been raised a number of times in other Circuits and this Court and are well settled. The Appellate Court erred in not considering the well settled case law in the `Imprisonment for debt’ the `Right to counsel’ and the `Right to appeal’ issues. The remaining issues raised by petitioner Vinik are important questions of law that should be settled by this Court.
WHETHER AN INDIGENT ACCUSED OF NONPAYMENT OF SUPPORT DEBT MAY BE THREATENED WITH THE LOSS OF LIBERTY OR MAY LOSE HIS LIBERTY WITHOUT BENEFIT OF COURT APPOINTED COUNSEL.
It is well settled that the right to counsel, at public expense if necessary, is well established with respect to proceedings that are criminal in nature. The Sixth Amendment’s guarantee of counsel in criminal prosecutions has been applicable, through the Due Process Clause of the Fourteenth Amendment of the federal constitution, in all state felony trials since Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), and to indigents who, if they lose, could be incarcerated for petty or misdemeanor offenses since Argersinger v Hamlin, 407 US 25; 92 S Ct 2006; 32 L Ed 2d 530 (1972).
The Due Process Clause of the Fourteenth Amendment precludes incarceration of an indigent defendant in a contempt proceeding for nonpayment of child support if the indigent has been denied the assistance of counsel.
In Argersinger Supra, this Court explicitly ruled:
“UNDER THE RULE WE ANNOUNCE TODAY, EVERY JUDGE WILL KNOW WHEN THE TRIAL OF A MISDEMEANOR STARTS THAT NO IMPRISONMENT MAY BE IMPOSED, EVEN THOUGH LOCAL LAW PERMITS IT, UNLESS THE ACCUSED IS REPRESENTED BY COUNSEL.”
Significantly, New Jersey statute 2A:10-5 defines civil contempt as a misdemeanor.
A number of decisions by the United States Supreme Court and federal courts of appeal settle the significance of incarceration as the principal factor in determining whether and when the Due Process Clause of the Fourteenth Amendment requires that counsel be appointed for an indigent in a civil proceeding. Alternatively, the right to appointed counsel is enlarged if the proceeding is criminal and it is enlarged even further if the proceeding is a civil-criminal dichotomy. The judicial hearings opposed by this petitioner are in fact a dichotomy of civil-criminal procedure. The presence of an attorney most assuredly would dampen the unconstitutional spirit that prevails. The federal district courts uniformly have mandated the right to counsel in support enforcement proceedings. See: McKinstry v Genesee Co Circuit Judges. 669 F Supp 801 (ED Mich, 1987); Johnson v Zurz. 596 F Supp 39 (ND Ohio, 1984); Lake v Speziale, 580 F Supp 1318 (D Conn, 1984); Young v Whitworth, 522 F Supp 759 (SD Ohio, 1981); Mastin v Fellerhoff, 526 F Supp 969 (SD Ohio, 1981)
“For all its consequence, ‘due process’ has never been, and perhaps can never be, precisely defined. . [T]he phrase expresses the requirement of ‘fundamental fairness,’ a requirement whose meaning can be as opaque as its importance is lofty.” Lassiter v Durham Co. North Carolina, Dep’t of Social Services, 452 US 18, 24; 101 S Ct 2153; 68 L Ed 2d 640 (1981). Although application of the Due Process Clause is an “uncertain enterprise,” this Court has counseled that its meaning in a particular case is discovered “by first considering any relevant precedents and then by assessing the several interests that are at stake.” Id. at 25.
It is well settled that one cannot be denied the benefit of counsel simply because the proceeding is considered to be civil in nature if incarceration may be considered. Moreover, the New Jersey contempt statute eliminates civil contempt6 and can therefore only attach a greater need for the presence of an attorney in these proceedings. See N.J. Dept. of Health v. Roselle, 34 N.J. 331, 169 A.2D 153 (1961) and 2A:10-5.
In Argersinger Supra, the Supreme Court held that absent a knowing and intelligent waiver, a defendant may not be imprisoned, no matter how petty the criminal offense, unless represented by counsel at trial. The rationale supporting such a rule turned on the deprivation of physical liberty by incarceration, even if it were for only a brief period. 407 US 32-33, 41 (Burger, C.J., concurring).
N.J. 2A:10-5 specifies that contempt is a misdemeanor. This Court’s language in Argersinger Supra is so clear and so concise that to misinterpret it must be presumed deliberate. The right to counsel is well settled. The citations herein of some of the many cases on record make clear the well settled status of the right to counsel in support debt litigation falsely called civil contempt litigation.7 The right to counsel is very precious and must not be arbitrarily denied. “The constitutional right of assistance of counsel is too precious for such degenerate subversion.” U.S. v. Mitchell, 246 F. Supp. 874, 877 (1965)
This Court has been clear as have the circuits and districts. That it is time consuming or cumbersome or expensive or based on judicial prejudice is not reason enough to deny constitutionally mandated rights.
In a case analogous to the instant case in circumstance and fact the Federal District Court for the District of Connecticut clearly stated that it was the responsibility of the state’s Superior Court Judges to advise members of the class of their rights and that these Judges were responsible for the enforcement of those rights.
“Accordingly, the defendants, Chief Justice John Speziale and Chief Court Administrator Maurice Sponzo, and members of the defendant class, the Superior Court Judges of the State of Connecticut, are hereby required to advise all members of the plaintiff class of their right to counsel and their right to court-appointed counsel if found to be indigent, and to appoint counsel to assist such class members found to be indigent, in civil contempt proceedings concerning child support orders. . . . in which members of the plaintiff class face potential incarceration. . . .” Lake v. Speziale, 580 F.Supp. 1318 (1984)
In the instant case the New Jersey Superior Court Judges are acting in concert with respondent O’Neill.
The Court also ruled in a Federal Court case that it was a prerequisite to jurisdiction that an attorney represent the accused, the Court said:
“Since the Sixth Amendment constitutionally entitles one charged with a crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court’s authority to deprive an accused of his life or liberty.” Johnson v. Zerbst, 304 U.S. 458 (1937) If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. If this requirement of the Sixth Amendment is not complied with, the Court no longer has jurisdiction to proceed. Id. at 468
The Fifth Circuit clarified the right to counsel further by ruling that: “A father who had failed to comply with a Texas state judgment ordering him to pay child support and who was in prison for contempt in a proceeding in which he was not represented by counsel, despite his request for same and his uncontroverted assertion of indigency, was entitled to habeas corpus relief; the indigent who appears without counsel can be charged neither with knowledge that he has the burden of proving that his failure to pay was not contemptuous nor with an understanding of how to satisfy that burden.” Ridgway v. Baker, 720 F.2d 1409 U.S. Ct. App. 5th Circ. Texas – (1983)
The 10th circuit considered this issue a number of times and also supported the right to counsel when it ruled:
“. . . .[A] Father who was held in contempt for failure to pay support obligations sought federal writ of habeas corpus. The United States District Court for the Western District of Oklahoma, Ralph G. Thompson, Jr., denied writ, and father appealed. The Court of Appeals, McKay, Circuit Judge, held that contempt conviction was obtained in violation of father’s due process rights, where father was held in contempt in jail without assistance of counsel and without being informed of his right to appointed counsel if indigent, and very issue in contempt proceeding was father’s alleged inability to pay his support obligations.
Right to counsel, as aspect of due process, turns not on whether proceeding may be characterized as criminal or civil, but on whether proceeding may result in deprivation of liberty. Due process requires, at a minimum, that indigent defendant threatened with incarceration for civil contempt for non-support, who can establish indigency under normal standards for appointments of counsel in a criminal case, be appointed counsel to assist him in his defense (U.S.C.A. Constitutional Amendment 14). Indigent’s right to appointed counsel imposes on courts an obligation to inform him of that right. In the absence of notice by a court of right to appointed counsel, the indigent defendant cannot be said to have waived his right to counsel. A contempt conviction was obtained in violation of the father’s due process rights, where father was held in contempt and jailed without assistance of counsel and without being informed of his right to appointed counsel if he was indigent, and the very issue in the contempt proceeding was the father’s alleged inability to pay his support allegations.” Walker v. McLain, 768 F.2d 1181 (10th Cir. U.S. Ct. App. 1985)
Standard for determining whether habeas petitioner knowingly and intelligently waived his right to counsel and exercised his right to proceed at trial pro se was the same in habeas proceedings as it was on direct appeal. In a habeas corpus proceeding, when the record demonstrates that a defendant was not adequately informed of his rights to self-representation, the state must prove that a defendant voluntarily and intelligently waived his right to counsel. In order for a defendant to invoke the right to represent himself, he must waive his Sixth Amendment right to counsel, and the trial judge has a duty to determine whether a proper waiver has been made, bearing in mind strong presumption against a waiver of this constitutional right. Defendant’s choice to proceed pro se cannot be voluntary in a constitutional sense when the defendant is faced with a choice between incompetent or unprepared counsel and appearing pro se. (U.S.C.A. Const. Amend. 6) Sanchez v. Mondragon, 858 F.2d 1462 (U.S. Ct. App. – 10th Cir. 1988)
In Argersinger Supra, the general rule is that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” In all Circuit Courts of Appeals that have considered the question of right to counsel, have found that there is such a right in civil contempt proceedings at which incarceration can be imposed. Colson v. Joyce, 646 F.Supp. 102 (D .Me. 1986)
Therefore the Third Circuit erred in affirming the District since the Right to counsel is well settled in contempt litigation that may result in incarceration notwithstanding that it may be falsely called civil or that it may be criminal.
WHETHER INCARCERATION CAN BE IMPOSED AS A PUNISHMENT FOR NONPAYMENT OF DEBT FOR THE EXPRESSED PURPOSE OF COLLECTING THAT DEBT, NOTWITHSTANDING THE FACT THAT SAID INCARCERATION IS CLAIMED TO BE FOR CONTEMPT OF COURT.
It is well settled that incarceration for debt is no longer permitted by law. The question raised here is whether a continuing practice of recurring incarceration of Petitioner Vinik and members of the petitioner class for civil contempt as a divisive means to collect support debt is in fact a punitive imprisonment for debt. New Jersey law is clear that civil contempt is criminal:
NJ 2A:10-5 CIVIL CONTEMPT “Civil contempt is a misdemeanor. Punishment in summary prosecution for contempt may not exceed six(6) months imprisonment or $1000 fine or both, subject to statutory probation provisions.”
Volume 4A of West Publishing Company’s NEW JERSEY PRACTICE substantiates the fact that there is no civil contempt in this state as does the contempt law. Since all contempt is punitive in nature in New Jersey, all imprisonment for contempt of a support order is punitive imprisonment for debt, since it cannot be called civil or coercive.
Volume 4A of West’s says on page 139:
“Historically, there were two kinds of contempt, criminal and civil. However, the distinction was eradicated by the Supreme Court of New Jersey in N.J. Dept. of Health v. Roselle, 34 N.J. 331, 169 A.2D 153 (1961)”
It is then unequivocally and insuperably impossible to impose a civil contempt “Coercive incarceration” to compel relief (payment of debt) to the opposing party in a civil matter in a state where civil contempt does not legally exist. N.J. 2A:10-5 is clear that, “Civil contempt is a misdemeanor. . . .”
The punishment of imprisonment for debt results in collection of about 10% of the outstanding debt owed (see appendix A7, p4). If it were coercive as is argued, it is not working. It is therefore punitive imprisonment for debt. The major portion (90%) of those arrested are indigent and unable to pay.
The law states that punishment of imprisonment is imposed for the contempt of not paying a debt and is defined by the clear language of the law to be imprisonment for debt. This is irrefutably contravening the letter and intent of the Constitutions of both New Jersey and the United States.
It is common practice under N.J. 2C:62-1(a) that imprisonment is ordered without even the benefit of a trial, much less a fair trial. This statute also empowers the same judge who issued the support order to order punitive imprisonment for debt without a trial in violation of the due process clause of the Fourteenth Amendment.
The New Jersey civil contempt law, 2A:10-5 says civil contempt is a crime (misdemeanor) therefore any imprisonment for the civil contempt “crime of nonpayment of support debt” even if it is furtively called civil, is in fact defined as punitive imprisonment for debt by the same law that perniciously calls it civil contempt.
The argument of the respondents and those acting in concert that imprisonment for contempt is coercive or compensatory rather than punitive is simply a smoke screen. This Court said plainly:
“Punishment for civil contempt is intended to be either coercive or compensatory, whereas purpose of criminal contempt punishment is punitive. U.S. v. Rylander, 714 F.2d 996 (1983); 103 S.Ct. 1548 (1983)
The United States Constitution is clear that Federal imprisonment for debt has been abolished in any state that has abolished it:
28 U.S.C. § 2007(a) “A person shall not be imprisoned for a debt on a writ of execution or any other process issued from a Court of the United States in any state where imprisonment for debt has been abolished.”
And it is abundantly clear that imprisonment for debt has been abolished by the Constitution of the State New Jersey:
New Jersey Constitution, Article I, Paragraph 13
states: “No person shall be imprisoned for a debt in any action, or on any judgement founded upon contract, unless in case of fraud. Nor shall any person be imprisoned for a militia fine in time of peace.”
The Supreme Court of New Jersey ruled that the state legislature may not enact laws to circumvent the prohibition of imprisonment for debt:
State of New Jersey v. Madewell, 63 N.J. 506 (1973) “Statutes or ordinances, designed as debt collecting devices under the guise of penal laws, contravene the constitutional prohibition against imprisonment for debt. Thus the legislature may not circumvent the prohibition by rendering criminal a simple breach of contract, the nonpayment of debt, or the failure to use one’s own money for a purpose other than for payment of debts. However, statutes against false pretenses, frauds, cheats, and the like are sustained as against the constitutional objection that such statutes impose imprisonment for debt, on the theory that one who violates the act is punished for the crime he has committed, although civilly the acts may also constitute a breach of contract or nonpayment of a debt.
Both the law and the practice of respondent and those acting in concert in support debt collection enforcement are unconstitutional. The state and counties of New Jersey have developed a support collection enterprise that is paid enormous sums of money to prostitute the rights of it’s citizens.8
The District Court erred in dismissing and the Third Circuit erred in affirming its dismissal of petitioner’s complaint. Although imprisonment for debt has been abolished by law, it still exists in New Jersey and must be abrogated.
This issue was also confirmed by the Fifth Circuit in Pierce v. Vision Investments, Inc., 765 F.2d 539 (U.S. Ct. App. 5th Circ. Texas – 1985).
“Civil contempt judgment for failure to comply with payment terms of a consent order violated the prohibition against imprisonment for debt of this federal statute and the Texas Constitution, Article I, Paragraph 18, since the consent order was a `money judgment’ or debt under federal law, since the use of contempt sanctions constituted imprisonment for debt under federal law. . .”
That the respondents and those acting in concert are also violating the petitioner Vinik’s and members of the petitioner class’ Constitutional Rights by commingling civil and criminal considerations in one proceeding is abundantly clear and this is also well settled.
“Contempt judgment was invalid where proceeding demonstrated traits of both criminal and civil contempt and it was not possible to determine the true character of the proceeding.” Skinner v. White, 505 F.2d 685 (1974)
The laws under which the incarceration complained of herein are imposed says that the incarceration is punitive for not paying a money debt or judgement, that the punishment may be ordered without trial and the same laws commingle civil and criminal traits in the same proceeding in direct conflict to well settled law. Therefore the Third Circuit Court erred in affirming the District Court’s dismissal.
WHETHER A PUNITIVE STATE STATUTE THAT IS ARBITRARY, AND IS NOT CAPABLE OF STRICT CONSTRUCTION, AND IS ENFORCED ONLY AGAINST A SEX BASED CLASS OF PERSONS, VIOLATES THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE 14TH AMENDMENT.
N.J. 2C:62-1(a) explicitly allows the courts to punish non-payment of support debt by punitive imprisonment for debt without a trial. This law is deliberately and explicitly violative of the due process clause of the Fourteenth Amendment.
“Any time after a sworn complaint is made charging an offense under 2C:24-5 and BEFORE TRIAL, the court may enter such temporary order as may seem just, providing for the support of the spouse or children, or both pendente lite, and may PUNISH A VIOLATION of such order as for contempt.” (emphasis added).
It is abundantly apparent that a law granting authority for punitive imprisonment for debt without a trial is in violation of the Due Process Clause of the Fourteenth Amendment of the Constitution. It is an insult to the citizens of New Jersey of such outrageous magnitude that it cries out to the Federal Judiciary to intervene in the petitioner class’ behalf.
Moreover, the intent of such a law, no matter that it is in best interests of a sex based segment of the citizenry, must be to seen by this court to blatantly circumvent the constitutional guarantees of equal protection(see appendix A7, Newspaper reports of Non-support arrests 97% male).
Quite apart from the guarantee of equal protection, if a law impinges on a fundamental right explicitly or implicitly secured by the Constitution it is presumptively unconstitutional. Harris v. McRae, 100 S.Ct. 2671, 448 U.S. 297, 65 L.Ed.2d 784, rehearing denied 101 S.Ct. 39, 448 U.S. 917, 65 L.Ed.2d 1180 (1980)
As it has been shown in the foregoing that the collection of support debt in New Jersey by a contempt proceeding is a criminal proceeding although falsely called civil contempt. It is also shown that the respondent and those acting in concert do not afford petitioner Vinik and members of the petitioner class due process and a fair trial in accord with the provisions of the Fourteenth Amendment. It is also the manner in which the respondent and those acting in concert enforce the law, which nonetheless on its face is unconstitutional, that is violative of petitioner Vinik’s and the petitioner class’ Constitutional Rights. This law is enforced in over 95% of the cases on male parents (see appendix A7). This is not indicative of mass feloniousness of male divorced parents but of gender bias in the manner in which the support enforcement industry enforces these penal codes. This court said:
“In the main, the limitations contained in the constitutional provision relating to bills of attainder and ex post facto laws and the Thirteenth and Fourteenth Amendments concern not restriction upon the power of the states to define crime, except in the restricted area where federal authority has preempted the field, but restrictions upon the manner in which the states may enforce their penal codes. Rochin v. People of Cal., 72 S.Ct. 205, 342 U.S. 165, 96 L.Ed. 183, 25 A.L.R.2d 1396 (1952)
It appears on its face that the law is not gender specific but it is so obdurately gender predisposed in its application as to be directly in opposition to the court’s position as stated in Orr v. Orr, 99 S.Ct. 1102, 440 U.S. 268 (1979):
“Legislative classifications which distributes benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the proper place of women and their need for special protection; thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination against women must be carefully tailored. The state cannot be permitted to classify on the basis of sex.” And:
The United States Supreme Court held that the “old notion” that “generally it is the man’s primary responsibility to provide a home and its essentials,” can no longer justify a statute that discriminates on the basis of gender. “No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.” Stanton v. Stanton, 421 U.S. 7, 10; 95 S.Ct. 1373, 1376 (1975)
Classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Craig v. Boren, 97 S.Ct. 451; 429 U.S. 190 (1976)
Although the receipt of many millions of dollars from the Federal Government under the secret contract (see appendices A6-A7) heretofore described is an important governmental objective, surely this Court was not considering that in Craig Supra
The gender bias complained of is rampant throughout the family court system of New Jersey. It begins as soon as a Father v. Mother case enters the docket. It is here that the first decision casts the die for inequality. Before any trial the court enters its first order. This is methodically a pendente lite award of custody, support, and the marital home to the mother. The father is de-homed and de-monied and his right to parent his children is rescinded without a trial. He is now reduced by an Ex Post Facto application of the law to visitor of his children. There is no legal foundation for this kind of an order. Each parent has the right to the presumption of equality of right and ability to parent9 their children and the equal obligation to pay for their children’s support. This being the case and barring any showing of parental inadequacy by either parent the custody, visitation and obligation should be equally divided. It is not, the courts find against the male parent in over 95% of the cases.
These Pendente Lite awards are rarely changed except to increase the support amounts to mother. The order of divorce then makes the Pendente Lite order permanent. This is accomplished by delaying the divorce for as much as a year or two but rarely less than six months. This delay, habitually, caused by the Court, is then used to make the Pendente Lite award permanent since a change now would be “disruptive of the children’s lives.”
In no other area of law is the outcome so predictable. This statutory scheme is not based on any known study or facts that indicate women are the preferred custodial parent but on the unconstitutional “Tender years doctrine” and judicial bias. There is no known moral or legal rationale to base this sexually discriminatory application of the law on.10
“Classifications based upon sex, like classifications based upon race, alienage or national origin are inherently suspect and must be subjected to strict judicial scrutiny. . . Any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands dissimilar treatment for men and women who are similarly situated and therefore involves the very kind of arbitrary legislative choice forbidden by the Constitution.” Frontiero v. Richardson, 93 S.Ct. 1764; 411 U.S. 677 (1973)
It can be deduced that an equal number of men and women are litigating divorces by the fact that marriages are of one man and one woman by law. It therefore follows that if men and women were treated with a presumption of equality the distribution of custodial parents might approach fifty percent. Since it is more than ninety five percent in favor of one sex (mother) it can only be paradigmatic of outrageously severe repressive gender bias in the treatment of male litigants in the state family courts. This court has ruled that gender bias cannot exist on this basis.
A classification must be reasonable, not arbitrary, and must rest upon some ground of differences having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. Johnson v. Robinson, 94 S.Ct. 1160, 415 U.S. 361 (1974)
Thus N.J. 2A:62-5 is on its face violative of the due process clause of the Fourteenth Amendment and the application of it by respondent and those acting in concert is violative of the due process clause of the Fourteenth Amendment. Therefore the Third Circuit Court erred in affirming the District Court’s dismissal.
WHETHER THE RIGHT TO TRIAL BY JURY IS GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES WHETHER THE CASE IS CONSIDERED TO BE CIVIL OR CRIMINAL IN NATURE AND INCARCERATION FOR AN INDETERMINATE PERIOD IS CONTEMPLATED TO SECURE PAYMENT OF A SUPPORT DEBT.
Since civil contempt is a misdemeanor (crime), it is within the constitutional guarantees of indictment and trial by jury. See In re Buehrer, 50 N.J. 501; 236 A.2d 592 (1967)
Both the New Jersey Constitution and the Federal Constitutions insure the right to a jury trial in matters that may result in a severe penalty.
Imprisonment for debt is an outrageously severe penalty. The probation for many years that automatically follows is also a severe penalty.
New Jersey Constitution, Article 1, Paragraph 9 states:
“THE RIGHT TO TRIAL BY JURY SHALL REMAIN INVIOLATE.”
Under the present state constitution (1947), this right has continued un-annulled, un-altered and un-repealed, from our first state constitution of 1776 through the present. The absolute predominance of this right of jury trial was clearly demonstrated by the original framers of our 1776 state constitution who required, that all legislators swear on their oath of office that they would not assent to any law, vote or proceeding that shall annul or repeal the right of trial by jury. By such action, these framers intended to forever prohibit future lawmakers from every denying New Jersey citizens of their fundamental right of trial by jury. The 1776 framers used as a basis for our first state constitution a document named: “The Concessions and Agreements of the Proprietors, Freeholders and Inhabitants of the Providence of West Jersey,” dated March 3, 1676. This stated, at Chapter XXII, “That the tryalls of all Causes Civill and Criminal shall be heard and decided by the verdict of twelve honest men of the neighborhood.” Chapter XIX of this 1676/1677 compact also mandated that judges be “directed by said twelve men in whom only the Judgment resides and not otherwise.” This chapter also went on to indicate that if any other person or persons (judges included) rendered such a judgment, the decision was null and void and “the person or persons soe presuming to give Judgment shall be severely fined and upon complaint made to the general Assembly by them be declared incapable of any office or trust within this Province.” In 1776, our founding fathers ordained “that the inestimable right of tryal by jury shall remain, confirmed, as a part of the law of this colony, without repeal, forever.”
Bloom v. Illinois, 88 S.Ct. 1477 (1968) “Fifth and Fourteenth Amendments forbid both federal government and state from depriving any person life, liberty, or property without due process of law. When serious punishment for contempt is contemplated, rejecting the demand for jury trial cannot be squared with Constitution or justified by considerations of efficiency or desirability of vindicating authority of Court . . .”
Offut v. United States, 348 U.S. 11, 14. Article III,Section 2, of the US Constitution provides that “The trial of all Crimes, except in cases of impeachment, shall be by jury.”
It is quite obvious that since all contempt is criminal in New Jersey the right to a jury trial is mandated by the Constitutions of New Jersey and the United States as well as case law. Therefore the Third Circuit erred in affirming the dismissal by the District Court.
WHETHER THE SEVENTH AMENDMENT RIGHT TO ESTOPPEL OF A RE-HEARING OF FACT IS MAINTAINED IF A JURY TRIAL WAS NOT HAD IN THE FIRST TRIAL AND A JURY TRIAL WAS NOT AVAILABLE.
Reasons four and five are similar and argued concurrently. Although they are violative of different Amendments the violations of rights are commingled by the New Jersey criminal code and case law which abolished the distinction between civil and criminal contempt in the New Jersey Courts.
WHETHER THE RIGHT TO INVOKE THE FIFTH AMENDMENT PROHIBITION AGAINST DOUBLE JEOPARDY IS MAINTAINED IF A JURY TRIAL WAS NOT HAD IN THE FIRST TRIAL AND A JURY TRIAL WAS NOT AVAILABLE.
The Seventh Amendment prohibits the rehearing of facts in a civil trial if the facts were decided by a jury in a previous trial. The Fifth Amendment prohibits the exposure to double jeopardy in a criminal trial. It is petitioner Vinik’s argument that the denial of a jury trial is used to defeat the Seventh and Fifth Amendment prohibitions of double jeopardy and prohibition of retrying the facts twice in a civil matter. The practice of respondent and those acting in concert in New Jersey Superior Court is to continue the case on the docket as a civil case until the child(ren) are emancipated. All orders then issued are then called civil and interlocutory.
All non-custodial parents are placed automatically on probation11 and their pay is garnished, if there is a support order in place against them. This is done by rule without a trial and is therefore an unconstitutional “Bill of Attainder.” The garnishment and probation continue until the child(ren) reach age eighteen and sometimes longer12. This practice of continuing the case on the docket without final decision forecloses many rights, such as: the right to a speedy trial, and the right to estoppel the re-hearing of the same facts over and over again13 and the right to immunity from double jeopardy and the right to an attorney. The entire proceeding is blatantly lacking of due process.
At any time the respondent and those acting in concert may and often do bring a motion to enforce litigants rights for the entire debt including that which had been disposed of in the previous hearing. By this unconstitutional practice of continuing the case on the docket for many years and the unavailability of a jury trial the petitioner and members of the petitioner class are foreclosed from enforcing their rights. This argument is based on the stated position of the respondents and those acting in concert that child support debt collection is purely a civil matter. However, it is the position of petitioner Vinik that the collection of child support should be civil but is treated as and is in fact defined as criminal prosecution for debt by N.J.2A:10-5 and court practice.
The practice of re-trying petitioner Vinik and members of the petitioner class over and over again for non-payment of support debt is a violation of the Fifth Amendment right to immunity from double jeopardy. This re-trying is done by the scheme of calling the litigation civil and converting it to criminal as the trial progresses. The civil case is never settled14 and the issue is re-tried by bringing motions for litigant’s rights in the same case and issue over and over again. The case in which the motion against petitioner Vinik was filed has been on the docket since 1981. This is an obdurate scheme to contravene the Fifth Amendment prohibition against double jeopardy and the Seventh Amendment prohibition against retying the same facts as well as the Fourteenth Amendment right to due process. Therefore the Third Circuit erred in affirming the dismissal by the District Court.
WHETHER THE RIGHT TO LIBERTY MAY BE THREATENED OR TAKEN WITHOUT DUE PROCESS FOR THE PURPOSE OF COLLECTING CHILD SUPPORT DEBT.
It is the right of petitioner Vinik and the members of the petitioner class to due process at any time a state or federal agency or court is considering a civil or criminal matter that may result in the deprevation of liberty.
Only once in New Jersey was an attorney appointed for an indigent accused of non-support15. This was done in the instant case when the federal judiciary was examining petitioner’s right to habeas corpus. It was the declared purpose of the court while appointing counsel that the federal litigation not set a precedent requiring an attorney for all accused of non-payment of support debt.
The Districts, Circuits and this Court have held that the denial of effective counsel in a civil or criminal contempt proceeding if the proceeding may result in the deprevation of liberty is a denial of due process:
“. . .whether the contempt proceeding in this case began as a civil contempt proceeding or as a hybrid civil-criminal contempt proceeding (the record does not indicate which); it ended with a criminal rather than a civil sanction.” Mann v. Hendrian, 871 F.2d 51 (U.S. Ct. App. – 7th Cir. 1989)
“In Argersinger v. Hamlin, 407 U.S. 25, 37, (1972), the general rule is that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” In all Circuit Courts of Appeals that have considered the question of right to counsel, have found that there is such a right in civil contempt proceedings at which incarceration can be imposed.” Colson v. Joyce, 646 F.Supp. 102 (D .Me. 1986)
“Courts (must) indulge every reasonable presumption against waiver of fundamental constitutional rights, and. . .not presume acquiescence in the loss of fundamental rights.” Dimick v. Schiedt, 293 US 474 (1935); 304 US at 464
“Right to counsel, as [an] aspect of due process, turns not on whether proceeding may be characterized as criminal or civil, but on whether proceeding may result in deprivation of liberty. Due process requires, at [a] minimum, that indigent defendant threatened with incarceration for civil contempt for non-support, who can establish indigency under normal standards for appointments of counsel in criminal case, be appointed counsel to assist him in his defense (U.S.C.A. Constitutional Amendment 14). Indigent’s right to appointed counsel imposes on court obligation to inform him of that right. In absence of notice by [a] court of [a] right to appointed counsel, indigent defendant cannot be said to have waived his right to counsel. Contempt conviction was obtained in violation of father’s due process rights, where father was held in contempt and jailed without assistance of counsel and without being informed of his right to appointed counsel if he was indigent, and very issue in contempt proceeding was father’s alleged inability to pay his support allegations.” Walker v. McLain, 768 F.2d 1181 (10th Cir. U.S. Ct. App. (1985)
In Argersinger Supra The Supreme Court proclaimed that: “Under a rule we announce today, every trial judge will know, when the trial of a misdemeanor starts, that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel.” Since N.J. 2A:10-5 defines civil contempt as a misdemeanor the denial of effective counsel is indicative of the premeditated and pervasive denial of due process throughout the support debt collection process. Therefore, the Third Circuit erred in affirming the dismissal by the District.
WHETHER THE RIGHT TO APPEAL MAY BE DENIED BY NOT ENTERING COURT DECISIONS ON THE RECORD THUS FORECLOSING THE RIGHT TO APPEAL TO A HIGHER COURT.
It is the practice of the appellate division to deal with appeals brought by petitioner Vinik and members of the petitioner class by calling the hearing Judge on the phone and asking what’s going on and sometimes admonishing the hearing Judge to protect the respondent’s rights. This “Old boy network” form of justice is swift. It is not, however, on the record, nor is it due process(one case was recorded, see appendix A8).
Without a record of an appeal to the Appellate Division of the Superior Court the New Jersey Supreme Court would not hear an appeal. This scheme prevents appeal to higher state Courts and the Federal Courts since it unfoundedly appears that the litigant did not exhaust his state remedies when in fact none exist.
“An appeal to the Supreme Court of New Jersey may be taken as a matter of right from a FINAL JUDGEMENT. . . .” West Publishing Company’s NEW JERSEY PRACTICE Vol. 3, page 3.(emphasis added)
It is well known that the state appellate courts do not hear appeals of support enforcement orders. The New Jersey Bar Association’s Institute for Continuing Legal Education (ICLE) holds seminars and classes for newly admitted lawyers. Their Family Law Practical Skills Series publication says on page one:
“The following material is designed to give the new attorney the necessary tools to handle a relatively uncomplicated divorce case. . .” On page two it says, “Only final judgements are routinely appealable. (Final judgements are those judicial actions which dispose of all claims in an action as to all parties).”
The practice of the respondent and those acting in concert is to continue matrimonial cases on the docket from the divorce until the emancipation of the children. Accordingly, there are no final orders and no right to appeal exists. Therefore the Third Circuit erred in affirming the dismissal by the District Court.
NEW QUESTION NOT PRESENTED BELOW
Petitioner Vinik moved for Court appointed counsel in the United States Court of Appeals for the Third Circuit. His motion was denied. Based on Rule 23, the absence of counsel forecloses the right to class action relief. This Rule requires the representation of the litigant that he will “adequately represent the class.” Since pro se litigants are presumed not to have adequate legal expertise to represent a class, this presents a “Catch 22” situation. While it can not be presumed that every litigant claiming he represents a class is in court with a frivolous cause, neither can the reverse be presumed. If, however, a complaint is placed on the docket and is within jurisdiction of the court, petitioner Vinik avers the court has an obligation to extend more consideration to a motion for appointed counsel by a complainant also moving for maintenance as a class because the rights of many are at stake. Perhaps petitioner Vinik’s complaint would have been maintained as a class action and prevailed below if presented with the legal expertise of an attorney. The absence of counsel is likely to legally disenfranchise many.
In the instant case, the rights petitioner Vinik is asking to be enforced are some of the most basic rights conveyed by the Constitution. The denial of these rights are some of the same reasons this country was begot and the Constitution was conceived. If the law could not grow and change we might still have the dunking stool and stocks, and perhaps even flogging.
Research by petitioner Vinik has not revealed decisions of courts of this argument.
The respondent and those acting in concert have for a long time taken an aggressive stand on the issue of child support and rightfully so. There are custodial parents struggling along with not enough money. The collection of child support monies from recalcitrant fathers is a serious societal and legal problem. It is not, however, serious enough to violate the basic protections of our Constitution and our system of jurisprudence. The broad based implementation of onerous and unconstitutional support debt collection methods on the willing and unable payers and the recalcitrant alike puts the willing and the unable in unreasonable jeopardy in order to make up for the inability of the system to expose and penalize the recalcitrant. Although the recalcitrant customarily are not found and litigated against the respondents and those acting in concert nonetheless argue that the system works by showing the amount collected from the willing as the example. This is done as a deliberate scheme to obtain funding for their enterprise from the Federal Government(see appendix A5, A6).
By grouping all obligors of support debt in a single special category from other debtors the state has enacted ex post facto rules and laws. This places all support debtors under threat of prosecution and actual prosecution without due process or trial by a Bill of Attainder
It is a human failing of great concern that those charged with upholding the law often fail to stay within the law, themselves, while over zealously enforcing the law. This is what is happening in child support enforcement litigation in New Jersey. The regular steam-rolling of single non-custodial male parent litigants in the New Jersey Superior Court system is epidemic. It was held in Yick Wo v. Hopkins 118 U.S. 356 (1886) that “Laws and Court procedures that are “fair on their faces” but administered “with an evil eye or a heavy hand” was discriminatory and violates the Equal Protection Clause of the Fifth Amendment.” The Constitutions of the United States and the State of New Jersey speak to these issues with clarity but so far no one in New Jersey has listened.
It is also important to note that these practices are federally mandated through the devisive back door of administrative fund allocation and denial(see CONSEQUENCES OF NOT ENTERING INTO AGREEMENT, appendix A5). The Federal Government does not have the constitutional authority to rule to the states in these matters, however by the device of offering the states money and then denying that money for not complying with Federal “Mandates” the Federal Government is nonetheless ruling and enacting state laws in these matters in much the same way as it enacted the 55 mile per hour speed limit in all the states. However, the speed limit enactment was not by way of a secret compact to deny civil rights and due process. These allocations amount to many millions of dollars.(See appendix A6)
The right to due process is clear, decisive and well settled as is the elimination of imprisonment for debt, clear, decisive and well settled. It was not said imprisonment for debt is hereby abolished, except for support debt. The unequivocal abolishment of imprisonment for debt was explicit, unreserved, and unconditional. It is long past time to insure the ecumenical implementation of these rights throughout the several states’ legal systems throughout the land. Imprisonment for debt must be put in the same skeletal closet as the dunking stool and stocks.
Dated: March____,1991 ____________________________
Petitioner Pro Se