Ruth Anne Robbins, Clinical Professor of Law*
Brian J. Foley, Esquire**
October 15, 2015
Sometimes a small decision demonstrates a large principle. That happened in late August when the Appellate Division released their unpublished decision of C.H. v J.S. The case caused enough of a stir for the New Jersey Law Journal to cover it, and for people to add reader comments to the online version. In the C.H. opinion, the Appellate Division vacated the granting of a Final Restraining Order and remanded the matter, colorfully castigating a trial judge, “The judge's abrupt ending to this 'hearing' curtailed the evidential presentations of both plaintiff and defendant. Even more important, we conclude defendant's fundamental rights to be heard were trampled on by the hearing procedures employed.”
The appellate court’s strong reaction was understandable. The trial judge had granted the restraining order based on an allegation of harassment contained in six or seven text messages. The plaintiff neither testified about the messages nor showed them to the judge as documentary evidence, and they were never entered into evidence. In addition, the appellate court concluded that the defendant was denied any meaningful ability to cross-examine the plaintiff. When he told the judge that there were several questions he would like to have asked the defendant, the judge told him to wait until after he finalized the restraining order. Shortly afterward, the judge then denied any further questioning, telling the defendant, “I’ve ruled on the case . . . I’m sorry.”
We trust that the true facts of these parties’ relationship will become clear during the remanded hearing. That the story was interesting enough for the New Jersey Law Journal to publish suggests that there was something to be learned from the case. We agree. But, if we are to point to a villain in this story, put aside for a moment that the easy conclusion that it was the trial judge and consider what may have gone unnoticed in this story: the empty attorney chairs. Those are all too common a sight at many New Jersey restraining order hearings, because the system presumes parties may adequately represent themselves pro se. To place this in perspective, to prepare their cases for trial, parties have only seven to ten days between the time of the initial filing of the complaint and the time of the hearing.
In other words, the results in the C.H. case demonstrate the principle that having lawyers in the courtroom could have helped this trial judge avoid this due process disaster. The Appellate Division’s ruling on the lack of due process could have been avoided with the location of counsel in the courtroom. Any competent lawyer would have objected properly and timely, giving the trial judge a chance to see the due process flaws, and to correct the errors at that moment.
Having an attorney in the courtroom is an easy guard against scenarios like that in C.H. In those cases, however, in which parties may want but cannot afford an attorney, judges are left on their own to sort out the facts, the law, and the procedure all at once. It is easy to see how a judge might make the type of errors that happened in the C.H. case. A trial judge hearing a restraining order case without the benefit of attorneys in the courtroom must shoulder some of the work of those attorneys. In those cases the judges will pay attention to the testimonial and documentary evidence, sometimes asking the parties questions to fill in the gaps needed to understand the circumstances while simultaneously paying attention to evidentiary standards. Simultaneously the judges must mentally review the intricacies of the existing statutory scheme and growing body of interpretive case law, make decisions about credibility draw reasonable inferences, and analyze those facts and inferences against the backdrop of that applicable law. Trial judges usually do so without the opportunity to even leave the bench, as most of these hearings take place in under an hour.
Certainly, the outcome in the C.H. case needed to be reversed and remanded. But the appeal and second hearing could have been avoided if New Jersey prioritized the importance of the civil right to counsel in domestic violence cases. Under New Jersey standards for creating that right, domestic violence cases certainly qualify. Case law in New Jersey already guarantees that right in civil cases where there are “consequences of magnitude” involved. This right exists independent of any other constitutional arguments. In New Jersey a consequence of magnitude includes things that might surprise you, such as the suspension of a driver’s license or a fine in a municipal court over $800. Fundamental denials of due process in restraining order hearings such as discussed in the C.H. case highlighted are consequential in significant ways that exceed municipal fines and driver’s license suspensions. Among other things, a defendant could lose access to home and family, the ability to possess weapons including those needed for jobs, and see professional licenses suspended. And a plaintiff who is not granted a restraining order is at a most vulnerable point in a relationship and could become exposed to physical and psychological dangers. A retaliatory defendant could deny the plaintiff access to the home or to children or pets.
The New Jersey Supreme Court had the opportunity to address this issue last year, but it declined. In a rare published opinion, the majority decision outlined a concern about the numbers of cases and the stress on the Madden system of assigning pro bono counsel. Justice Albin wrote a dissent, cautioning, “Had the United States Supreme Court taken the cost-analysis approach, Gideon would not be on the books today . . ..” Money has not stopped three nearby states from acknowledging domestic violence matters as one of the key types of cases that needs a civil right to counsel; nor has money prevented meaningful conversation among the judiciary, the practicing bar and the legislature in those states. New York already has a statute granting the civil right to counsel to both parties in restraining order hearings; the New York Legislature fortified it this summer with a concurrent resolution calling for legal assistance for all persons in need of “the essentials of life.” A legislative task force report in Maryland, released less than a year ago, recommended the civil right to counsel in domestic violence cases and included information about a four-year implementation plan. This summer, the Chief Justice of the Connecticut Supreme Court announced in June that the high court is exploring the issue of a civil right to counsel in all matters, and in particular in cases that involve housing, family matters, access to health care, education, and subsistence income. In a later interview, the president of the Connecticut Bar Association stated support for the initiative, promising to work towards finding ways to funding.
Providing counsel to indigent parties in domestic violence cases actually saves money overall, as research collected by the National Coalition for a Civil Right to Counsel suggests. Lawyers can also improve efficiency, helping judges move proceedings along and focus on the proper arguments. The C.H. appeal involved the efforts of a panel of appellate judges, their law clerks, and chambers’ and courthouse staff. Other cases were delayed while this one was decided. The remanded hearing will take up additional time and resources.
New Jersey has the beginnings of the outline of a system that could start a dialogue for change that would help us catch up with New York, Maryland, Connecticut, and the twenty-five other states plus the District of Columbia that have Access to Justice Commissions. The Prevention of Domestic Violence Act provides for a specified surcharge in domestic violence cases that could be used to help fund appointed counsel. The lead domestic violence agency in each county, which now maintains a legal advocate, could be supplemented or re-imagined as a system that trains and employs an attorney in each county to represent the plaintiffs, while the public defender program could be funded to include domestic violence hearing representation for defendants. The other legal service providers and the state’s two law schools could also support this type of infrastructure.
Moreover, every time the law is changed, the risk increases that parties may suffer a fundamental denial of due process. The Prevention of Domestic Violence Act has become more complex in the past several weeks and over the past few years. Two of the four recent additions to the definitions of predicate acts of domestic violence in the Act have us perplexed—and to put that in perspective, one of us co-authors a treatise on domestic violence practice while the other is in private practice having previously taught criminal law and evidence as a tenured professor. If two seasoned attorneys and academics who use their free time to write a blog entry about domestic violence cannot understand the statute, it seems unlikely that a pro se litigant will. Another example why parties should be represented: One element judges must consider in deciding whether to enter a restraining order is the “need analysis.” This element isn’t contained in the language of the Act but is the result of judicial interpretation.  Googling won’t apprise a pro se litigant that this is a crucial part of the analysis. (We’ve tried.) The New Jersey court website does not provide this information. The only reliable method is access to a practitioner guide or to a legal database, with high subscription costs.
Tellingly, the state’s two law schools find the work challenging enough that third-year law students may represent parties as part of a supervised clinical course. The inability of parties to competently represent themselves certainly isn’t going to get better; it will become more pronounced. What was once a relatively straightforward statute and procedure when it was passed in 1991 has become increasingly intricate and specialized. To expect that the system imagined in 1991 is still simple enough that every indigent party is able to represent him or herself adequately is an unreasonable assumption. The C.H. case demonstrates the further unreasonableness of asking trial judges to try to juggle the various roles in these cases.
Protecting civil rights takes resolve and often costs money. New Jersey has not shied away from protecting civil rights in the past, and domestic violence cases should not be the place to draw the line. The New Jersey Supreme Court’s rationale in deciding not to hear this issue on appeal was that acknowledging a right to counsel “would affect thousands of cases annually.” But the high number of cases is precisely why there should be a right to counsel – to reduce the risk that the sort of errors and deprivations in C.H. could routinely infect domestic violence proceedings involving thousands of New Jerseyans every year.
**Foley is a former law professor who recently opened a practice in Philadelphia focusing on civil rights, criminal, and employment law. He is a consultant to other attorneys about brief writing, evidentiary issues, and legal storytelling and strategy. http://brianjfoleylaw.com/
 No. A-5846-13-T1 2015 N. J. Super. LEXIS 2048 (Ct. App. Aug. 25, 2015).