ANDREANA KAVADAS, ALISHA GRABOWSKI,

LAQUAY DANSBY, and PAULO AREDE,

Plaintiffs,

v.

RAYMOND P. MARTINEZ, THE NEW JERSEY

MOTOR VEHICLE COMMISSION, JOHN JAY

JOFFMAN, ESQ., THE STATE OF NEW

JERSEY, NATASHA JOHNSON, and THE

DEPARTMENT OF OF HUMAN SERVICES,

DIVISION OF FAMILY DEVELOPMENT,

OFFICE OF CHILD SUPPORT SERVICES,

Defendants.

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION MERCER COUNTY

Docket No. MER-L-1004-15

CIVIL ACTION

BRIEF IN OPPOSITION TO PLAINTIFFS' ORDER TO SHOW CAUSE

John J. Hoffman

ACTING ATTORNEY GENERAL OF NEW JERSEY

R.J. Hughes Justice Complex

P.O. Box 116

Trenton, New Jersey 08625

Attorney for Defendants

LISA A. PUGLISI

Assistant Attorney General

Of Counsel

JACQUELINE AUGUSTINE

Deputy Attorney General

Of Counsel

SHANA BELLIN

Deputy Attorney General

On the Brief

TABLE OF CONTENTS

TABLE OF CONTENTS .....................................

TABLE OF AUTHORITIES .........................

.......................................................................................... i

.......................................................................... i i i

PRELIMINARY STATEMENT ............................................................................................................................1

FACTUAL AND LEGAL BACKGROUND .......................................................................................................4

I. The License Revocation Process ...................................................................4

II. Hearings to Enforce Litigants' Rights ..............................................6

III. Bench Warrants ...............................................................................................................10

IV. License suspension by operation of law upon the

issuance of a child support related bench warrant ....11

V. Plaintiffs ............................................................................................................................13

ARGUMENT

POINT I

THE PRELIMINARY INJUNCTION SHOULD BE DENIED BECAUSE

PLAINTIFFS HAVE NOT DEMONSTRATED THE CRITERIA REQUIRED FOR

THE GRANTING OF SUCH EXTRAORDINARY RELIEF .......... .................................. 15

A. Plaintiffs have not demonstrated a reasonable probability

of success on the merits . ................................................................................. 16

i. New Jersey's license suspension procedures do not

violate Plaintiffs' substantive due process rightsunder the Federal Constitution. ................................................ 16

ii. Even under the heightened protection offered by the

New Jersey Constitution, the State's license

suspension procedures do not violate Plaintiffs'

substantive due process rights . ......................................................20

iii. -New Jersey's license suspension procedures do not

violate Plaintiffs' procedural due process rights...23

B. Irreparable injury will not result if this Court denies

Plaintiffs' request for a preliminary injunction . .............26

i

C. The weighing of the equities favors the denial of the

injunction. .............................................................................................................................. 3 0

POINT II

THIS COURT SHOULD DENY PLAINTIFFS' REQUEST TO BE CERTIFIED

AS A CLASS BECAUSE PLAINTIFFS CANNOT MEET THE REQUIREMENTS

NECESSARY FOR CLASS CERTIFICATION .................................................................. 32

A. Plaintiffs have failed to establish the existence of

questions of law or fact in common to the class ............. 33

B. Plaintiffs have failed to establish that Plaintiffs'

claims or defenses are typical of the claims or defenses

of the class . ................................................................................................................... 36

C. Plaintiffs have failed to demonstrate that a class action

_is superior to alternative methods of adjudication ....... 37

CONCLUSION .......................................................................................................................................................39

ii

TABLE OF AUTHORITIES

Federal Cases

Amunrud v. Board of Appeals, 158 Wn.2d 208 (Wash. 2004) ............... 19

Amunrud v. Department of Soc. & Health Servs.-, 124 Wash. App.

884 (2004) ...................................................................................................................................................... 19

Armstrong v. Manzo, 380 U.S. 545 (1965) ............................................................... 23

Bell v. Burson, 402 U.S. 535 (1971) ............................................................... 18, 24

Benn v. Universal Health Sys. , 371 F.3d 165 (3d Cir. 2004) ...... 22

Chainey v. Street, 523 F.3d 200 (3d Cir. 2008) .......................................... 22

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) 21

Clark v. Jeter, 486 U.S. 456 (1988) ........................................................................... 17

Congrats Assn of E. Pa. v. City of Phila., 6 F.3d 990 (3d Cir.

19 9 3) ..................................................................................................................................................................... 21

Dixon v. Love, 431 U.S. 105 (1977) .......................................... 18, 27, 28, 30

Ferguson v. Skrupa, 372 U. S . 726 (1963) ............................................................... 18

Griswold. v. Connecticut, 381 U.S. 479 (1965) ................................................ 17

Heller v. Doe, 509 U.S. 312 (1993) .................................................................. 19, 21

Irvine v. California, 347 U.S. 128 (1954) ......................................................... 22

Lawrence v. Texas, 539 U.S. 558 (2003) .................................................................. 17

Mackey v. Montrym, 443 U.S. 1 (1979) .................................... 26, 27, 29, 30

Mathews v. Eldridge, 424 U.S. 319 (1976) ................................................ 23, 30

Nebbia v. New York, 291 U.S. 502 (1934) .................................................................. 21

Parratt v. Taylor, 451 U.S. 527 (1981) .................................................................. 29

River Nile Invalid coach & Ambulance, Inc. v. Velez, 601 F.

Supp. 2d 609 (D.N.J. 2009) ............................................................................................ ...... 22

Roe v . Wade , 410 U . S . 113 (19 7 3) .................................................................................... 17

Sammon v. New Jersey Bd. Of Med. Exam'rs., 66 F.3d 639 (3d Cir.

19 9 5) ..................................................................................................................................................................... 21

State v. Beans, 965 P.2d 7225 (Alaska 1998) ................................................... 20

Thompson v. Ellenbecker, 935 F. Supp. 1037 (D.S.D. 1995) ...............

........................................................................................................................................................................ 19 , 2 0

Tolces v. Trask, 76 Cal. App. 4th 285 (1999) ................................................ 20

United States v. Caroline Prods., 304 U.S. 144 (1938) ..................... 21

United States v. Virginia, 581 U.S. 515 (1996) .......................................... 17

Wash. v. Glucksberg, 521 U.S. 702 (1997) ............................................................ 16

Williamson v. Lee Optical of Oklahoma, 348 U.S. 482 (1955) ...... 21

State Cases

Crowe v. DeGioia, 90 N.J. 126 (1982) ..................................................................... 15

Doe v. Poritz, 142 N.J. 1 (1995) ............................:....................................................... 23

Greenberg v. Kimmelman, 99 N.J. 552 (1985) ..............:....................................... 21

Gross v. Johnson & Johnson-Merck Consumer Pharms. Co.,

303 N.J. Super. 336 (Law Div. 1997) ............................................................ 34, 36

In Re Cadillac, 193 N.J. 412 (1983) ........................................................................... 36

Lewis v. Harris, 188 N.J. 415 (2006) ........................................................................ 22

iii

Mackenzie v. Corzine, 396 N.J. Super. 126 (Law Div. 1982) ......... 15Pascua v. Council, 186 N.J. 127 (2006) .................................................................. 13

Right to Choose v. Byrne, 91 N.J. 287 (1982) ................................................ 20Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352

(1996) ......................................................................................................................................................... 22, 29

Saldana v. City of Camden, -252 N.J. Super. 188-, 196-99 (App.

Div. 1991) .......................................................................................................................................... 34, 37

State v. Clark, 162 N.J. 201 (2000) .................................................................................7

State v. McNamara, 212 N.J. Super. 102 (App. Div. 1986) .................. 7State v. Nunez, 139 N.J. Super. 28 (Law Div. 1976) ................................. 22State v. Saunders, 75 N.J. 200 (1977) ..................................................................... 20

State v. Schmid, 84 N.J. 535 (1980) ........................................................................... 20

Strawn v. Canuso, 140 N.J. 43 (1995) ........................................................................ 34

Federal Statutes

42 U.S.C. 666 (a) (16) ........................................................................................................................ 11

State Statutes

N. J. S.A. 2A:17-56.41(3)(a) ...................................................................................................... 35

N.J. S.A. 2A: 17-56.7 through N. J. S.A. 2A: 16-56.8 ........................... passimN. J. S.A. 2A: 17-56.41(a) .......................................................................................4-5, 11, 12

N.J.S.A. 2A: 17-56.43 ..............................................................................................................................4

N . J. S .A. 2A: 17-56.45 ........................................................................................................................ 13N. J. S.A. 2A:17-56.7(b) ...................................................................................................... 19, 31

Other Authorities

Administrative Office of the Courts Directive #15-08 ...... 7, 9, 10Certification in Support of ELR Motion ................................................................... 7

Failure to Appear Warrant ......................................................................................................... 10

Failure to Pay Warrant .................................................................................................................. 11

Instructions for Compliance with a Support Order ....................................... 6Notice of Delinquency ........................................................................................................................ 7

Notice of Motion to Enforce Litigants Rights ................................................ 7

Probation Child Support Enforcement Operations Manual ..................... 8

Uniform Summary Support Order .................................................................................... 6 , 12

Rules

R. 1 : 1-1 ............................................................................................................................................................... 7

R.

1:10-3 ...............................................................................................:.................................... 6, 10, 13

R . 4 :32 (a) ...................................................................................................................................................... 36R

.

4 :32-1 (a) ...........................................................................................................:.................................... 32R

.

4:32-1 (b) (2) ..................... ... ................................................... 32R

. 4: 3 2- 3 .................................................................:..................................................:.................................... 3 3R . 4 : 5 0 -1 ......................................................................................................................................................... 13R

.

4:50-19 (e) - (f) .................................................................................................................................... 13R . 5: 3- 7 ................................................................................................................................................................6

iv

R. 5: 5- 4 ............................................................................................................................................................... 8

R. 5 25 3 d 2 .................................................................................................... 10

Constitutional Provisions

U. S . Const . Amend. XIV, ~ 1 ................................................................................................... 16

v

PRELIMINARY STATEMENT

Before this Court is a request by various non-custodial

parents in New Jersey to invalidate the provisions of the New

Jersey Child Support Program Improvement Act (the "Act").

On August 22, 1996, President Bill Clinton signed into law

the Personal Responsibility and Work Opportunity Act (the

"PRWOA") Among the provisions of the PRWOA were those sections

directed to strengthen child support enforcement actions in the

states.

The Act not only advances the policy goals of the state and

federal government of collecting child support payments, but

also provides ample procedural due process to any non-custodial

parent (also known as an "obligor") in arrears on those

payments. Plaintiffs have mischaracterized the procedure

afforded to non-custodial parents when the Motor Vehicle

Commission suspends their drivers' licenses upon the issuance of

a warrant for failure to pay child support after an extended

period of time.

Non-custodial parents are advised at multiple points

throughout their time as obligors of the consequences of not

paying child support, including the suspension of a driver's

license in the event of non-payment. Furthermore, the - New

Jersey Court Rules and the Act afford the obligor multiple

opportunities to either explain nonpayment, apply for

1

modification of the payment or make late payments in accordance

with special schedules.

In light of the substantial interest New Jersey has in

enforcing child support, as well as the various procedures

afforded to non-custodial parents in arrears on payments,

Plaintiffs cannot succeed in obtaining a preliminary injunction

to invalidate the license suspension provisions. of the Act.

Further, because the procedures at issue offer almost immediate

post-deprivation relief to any license holder who has been

temporarily deprived, Plaintiffs cannot demonstrate irreparable

harm. Lastly, a balancing of the equities demonstrates that the

interests served in denying the injunction and upholding the

provisions of the Act far outweigh the temporary inconvenience

to individuals who have knowingly violated court orders and

failed to come into compliance.

Furthermore, Plaintiffs have not demonstrated the

prerequisites set forth in the New Jersey Court Rules necessary

to succeed in obtaining certification as a class. Plaintiffs

have not shown that questions of law and fact are common as to

all class members, that their claims or defenses are typical of

the claims or defenses of the putative class, nor that a class

action is superior to alternative methods of adjudication.

2

For these reasons, the Court should deny Plaintiffs'

request for temporary injunctive relief, deny Plaintiffs'

request for certification as a class and dismiss all counts of

the Verified Complaint.

[c3

FACTUAL AND LEGAL BACKGROUND

I. The License Revocation Process

The Act is codified at N.J.S.A. 2A:17-56.7 through N.J.S.A.

2A:17-56.8 and sets forth the standards and procedures by and

through which the State may suspend or revoke a child support

obligor's driver's license if that obligor is in arrears of his

or her child support payments. The Act states, in pertinent

part:

The court shall suspend or revoke a licenseif - it finds that: a. all appropriateenforcement methods have been exhausted, b.the obligor is the holder of a license, c.the requisite child support arrearage amountexists, health care coverage has not beenprovided as ordered pursuant to section 3 ofP.L. 1995, c.7[] or there has been noresponse to a subpoena, d. no motion tomodify the child support order, filed priorto the date that the notice of the licensesuspension or revocation was sent by theProbation Division, is pending before thecourt, and e. there is no equitable reason,such as involuntary unemployment,disability, or compliance with a court-ordered plan for the periodic payment of thechild support arrearage amount, for theobligor's non-compliance with the childsupport order.

N.J.S.A. 2A:17-56.43. (internal citationsomitted) .

Plaintiffs' arguments focus on the driver's licenses

suspension triggered by the issuance of a warrant. The

procedures for the licenses revocation are set out in N.J.S.A.

2A:17-56.41(a) which states:

4

If the child support arrearage equals orexceeds the amount of child support payablefor six months or court-ordered health carecoverage for the child is not provided forsix months, or the obligor fails to respondto a subpoena relating to a paternity orchild support action, or a child support-related warrant exists, and the obligor isfound to possess a license in the State andall appropriate enforcement methods tocollect the child support arrearage havebeen exhausted, the Probation Division shallsend a written notice to the obligor, bycertified and regular mail, return receiptrequested, at the obligor's last-knownaddress or place of business or employment,advising the obligor that the obligor'slicense may be revoked or suspended unless,

within 30 days of the postmark date of thenotice, the obligor pays the full amount ofthe child support arrearage, or providesproof that health care coverage for thechild has been obtained, or responds to a

subpoena, or makes a written request for a

court hearing to the Probation Division. The

obligor's driver's license shall be

suspended by operation of law upon theissuance of a child support-related warrant.If a child support-related warrant for theobligor exists, the professional,occupational, recreational ar sportinglicense revocation or suspension shall beterminated if the obligor pays the fullamount of the child support arrearage,provides proof that health care coverage forthe child has been obtained as required bythe court order, or surrenders to the countysheriff or the Probation Division.

N.J.S.A. 2A:17-56.41. (emphasis added).

The Division of Family Development ("DFD") Office of Child

Support Services ("OCSS") is the agency charged with the

oversight and administration of the Child Support Program and

the Vicinage Probation Divisions ("Probation Division") are

responsible for the enforcement of court orders. Once a court

imposes a child support obligation upon a noncustodial parent,

the obligor receives two notices: 1) a Uniform Summary Support

Order ("USSO" (Form CS526)); and (2) Instructions for Compliance

with a Support Order (Form CS002).

Provision 13 of the USSO states that the obligor's- license

shall be denied, suspended or revoked if a child support bench

warrant is issued. See USSO, attached as Exhibit A. The

Instructions for Compliance state that payment must begin

immediately and that failure to pay could result in enforcement

measures. See Instructions for Compliance with a Support Order,

attached as Exhibit B.

If an obligor fails to pay child support, he or she may be

summoned to appear for hearing to enforce litigant's rights.

II. Hearings to Enforce Litigant's Rights

The State courts utilize hearings to Enforce Litigant's

Rights ("ELR Hearings") to enforce provisions of court orders on

behalf of obligees/custodial parents or County Welfare Agencies.

R. 1:10-3; R. 5:3-7. Both a party to the specific child support

action and the Probation Division may file a motion for an ELR

Hearing when an obligor has accumulated support axrears equal to

or greater than the amount of support due for fourteen days. R.

D

Forty-five days from the first instance that an obligor is

delinquent past fourteen days, New Jersey's automated child

support system, NJKiDS, automatically sends out a Notice of

Delinquency (Form CS022) See Notice of Delinquency, attached

as Exhibit C. The Notice of Delinquency advises the obligor

that he or she must comply with the Court's initial Child

Support Order and that continued non-compliance may result in

the suspension of his or her driver's license.

If, after receipt of the Notice of Delinquency, an obligor

remains noncompliant, the Probation Division performs a review

of the case and may request an ELR hearing. R. 5:7-5(a). See

Notice of Motion to Enforce Litigants Rights (Form CSO40),

attached as Exhibit D and Certification in Support of Motion

(Form CSO41), attached as Exhibit E; See also Administrative

Office of the Courts, Directive #15-08, (November 17, 2008), p.

4 ("Directive #15-08")l, attached as Exhibit F.

The Notice of Motion2 advises the obligor that failure to

appear at the hearing may result in the issuance of a warrant

1 An Administrative Directive by the Chief Justice of the New

Jersey Supreme Court is equivalent to a rule of court and

binding on bench and bar. State v. Clark, 162 N.J. 201, 205

(2000). -Such a directive .has the force of law. State v.

McNamara, -212 N.J. Super. 102, 109 .(App. Div. 1986), certif.

denied, 108 N.J. 210 (1987). See R. 1:1-1; Pressler, Current

N.J. Court Rules, comment 3 on R. 1:1-1 (2006).

2 "Simultaneous certified and regular mailing of the written

notice shall constitute effective service. The court may deem

procedural due process requirements for notice and service of

7

and provides information regarding retaining the services of an

attorney. These forms are sent to the obligor by regular and

certified mail in accordance with R. 5:5-4, R. 5:4-4 (c) and R.

5:25-3 (e) .

If the obligor becomes current on payments during the

forty-five day period, the ELR Hearing is canceled. If not,

however, the ELR Hearing proceeds before a Child Support Hearing

Officer ("CSHO") If the obligor appears, he or she has an

opportunity to either present any defenses to the allegations of

noncompliance, including inability to pay, or comply with the

initial Child Support Order. The Probation division issues a

recommendation to the CSHO presiding over the ELR Hearing. This

recommendation takes into consideration such factors as: prior

compliance with court orders of a period of time, the age of the

child support order with a self-executing warrant provision,

whether an obligor has paid regularly since the issuance of the

child support order, the amount of the order and unpaid support,

the age of the children covered by the order, the enforcement

process to be met with respect to a party thereto upon delivery

of written notice to the most recent residential or employer

address filed with the Probation Division for that party." R.

5:7-5(e)(3) In lieu of a signed return receipt from the

certified mail, a Certification of Diligent Efforts may be

provided,. which establishes that diligent efforts have been made

to locate the obligor through inquiries to the U.S. Postal

Service, the Motor Vehicle Commission, the Department of Labor,

and the Department of Corrections. R. 5:4-4(c) See Probation

Child Support Enforcement Operations Manual, Court Enforcement

Procedures, Section 1604, attached as Exhibit G.

~~'

history of the case, and pending civil settlement's through

which the obligor expects a monetary award. Thus, the Probation

Division's recommendation for methods to enforce the Child

Support Order is very much conditioned on the facts of an

individual obligor's case. The CSHO takes into consideration

circumstances affecting ability to pay such as disability,

public assistance and employment in order to determine whether

the obligor has complied with the Child Support Order or the

extent of any non-compliance. Directive #15-08(B)(1) Upon

finding that the obligor has violated the Child Support Order,

the CSHO will grant one of the following remedies, singularly or

in combination, in accordance with R. 5:3-7(b):

1. Fixing the amount of arrearages and entering a judgment

upon which interest accrues;

2. Requiring payment of arrearages on a periodic basis;

3. Suspension of an occupational license or driver's license

consistent with law;4. Economic sanctions;

5. Participation in an approved community service;

6. Incarceration with or without work release;

7. Issuance of a warrant to be executed upon further

violation of the judgment for order; and

8. Any other equitable remedy.

Directive #15-08, p. 11 at Exhibit F.

Often, a CSHO will enter a Compliance Schedule, at which

point- NJKiDs will monitor the case for compliance.. The

Compliance Schedule may include a bench warrant _stipulation,

which provides that if the obligor misses a further payment

ordered by the court, a bench warrant may be issued. The bench

warrant stipulation can remain on an order for an indefinite

period of time in order to ensure timely payment is made.

A party who appears before a CSHO has the right to object,

or "appeal" a CSHO's recommended decision and be heard

immediately (usually on the same day) before a Family Part

Judge. R. 5:25-3 (d) (2) If an obligor fails to appear for an

ELR Hearing, a judge can, upon recommendation by the CSHO, sign

a bench warrant authorizing a Sheriff to bring the obligor to

court.

III. Bench Warrants

Two circumstances exist that can form the basis for the

issuance of a warrant: (1) Failure to Appear for an ELR Hearing

(an "FTA Warrant"); and (2) Failure to Make One or More Child

Support Payments after an ELR hearing has been conducted and a

new support order is issued (an "FTP Warrant").

If an obligor fails to appear at the ELR hearing, and the

court is satisfied that the obligor was properly noticed, the

court will issue an FTA Warrant which the Sheriff must execute

within 72 hours. (Form CS594 - A) See FTA Warrant attached as

Exhibit H; R. 1:10-3; Directive #15-08 at Exhibit F. The purpose

of the F'TA warrant is to expeditiously bring the- obligor in

front of a judge to explain his or her noncompliance with the

Child Support Order. R. 5:4-1(c).

to

If an obligor appears at the ELR hearing, the CSHO orders a

bench warrant stipulation or a compliance schedule. The bench

warrant stipulation provides that a bench warrant will issue

without further notice if the regularly scheduled payments

(generally following two payments) or a lump sum payment is not

made by a certain date. This enforcement mechanism is

memorialized in the USSO sent upon establishing the child

support order. NJKiDS tracks the obligor's payments and alerts

the assigned case worker if the obligor fails to comply with the

ordered schedule. Upon this violation, the system alerts the

case worker to review the case and request issuance of an FTP

Warrant from the judge. See FTP Warrant (Form CS594B), attached

as Exhibit I. The FTP Warrant states that the obligor's

driver's license "will be suspended by operation of law upon the

issuance of a child support related warrant." See also N.J.S.A.

2A:17-56.41(a).

IV. License suspension by operation of law upon the

issuance of a child support related bench

warrant.

The Social Security Act mandates that states promulgate

laws and procedures that withhold or suspend various licenses,

including driver's licenses, for purposes of child support

enforcement in appropriate cases. 42 U.S.C. 666(a)(16).

License suspension for failure to pay child support in New

Jersey is codified at N.J.S.A. 2A:17-56.41 through 2A:17-56.60.

11

One method of driver's license suspension is suspension by

operation of law upon the issuance of a bench warrant. If a

child support-related warrant exists, and the State has

exhausted all appropriate enforcement methods, the Probation

Division sends a notice to the obligor that the obligor's

license may be revoked or suspended unless the obligor pays the

full arrearage amount within thirty days responds to a subpoena

or makes a written request for a court hearing to the Probation

Division. N.J.S.A. 2A:17-56.41(a) The driver's license shall

be suspended by operation of law upon the issuance of a child

support-related warrant. Ibid.

This information is also contained in each USSO, which

states:

"The driver's license held or applied for by

the obligor shall be denied, suspended, or

revoked if the court issues a warrant for

the obligor's arrest for failure to pay

child support as ordered, or for failure to

appear at a hearing to establish paternity

or child support, or for failure to appear

at a child support hearing to enforce a

child support order and said warrant remains

outstanding. R. 5:7-4(e)."

USSO, Exhibit A.

On the same day the bench warrant is issued, an electronic

file is transmitted to the Motor Vehicle Commission ("MVC")

containing all obligors subject to license suspension. The MVC

is then responsible for effectuating the actual suspension. The

12

Probation Division also sends a notice to the obligor of the

revocation or suspension of the license.

when the obligor appears before the court to address a

bench warrant, the judge conducts an Ability to Pay Hearing and

makes an indigency determination as required by Directive #15-

08. Pursuant to Pasqua v. Council, an indigent child support

obligor facing incarceration must be afforded the appointment of

counsel pursuant to R. 1:10-3. 186 N.J. 127 (2006).

If the obligor pays the amount in arrears or another amount

decided upon by the court, the judge can either vacate or lift

the license suspension. If a license suspension is lifted, an

electronic request allowing for restoration is sent to the MVC

and the license is restored to the obligor in return for payment

of a $100 restoration fee. The judge cannot waive the

restoration fee. N.J.S.A. 2A:17-56.45. In some cases, a judge

will vacate the license suspension order and no restoration fee

is required. R. 4:50-1. A judge may vacate a license

suspension order when he or she finds: (1) that the judgment or

order has been satisfied, released or discharged; or (2) any

other reason justifying relief from the operation of the

judgment or order. R. 4:50-19(e)-(f).

V. Plaintiffs

Plaintiffs Andreana Kavadas, Alisha Grabowski, LaQuay

Dansby, and Paulo Arede ("Plaintiffs") in this action are all

13

non-custodial parent obligors that have at least one open case

with active child support obligations. In all four cases, the

Probation Division filed and served Notices of Motion to Enforce

Litigants' Rights and issued bench warrants either for failure

to appear or failure to make further payments.

14

ARGUMENT

POINT I

THE PRELIMINARY INJUNCTION SHOULD BE DENIED

BECAUSE PLAINTIFFS HAVE NOT DEMONSTRATED THE

CRITERIA REQUIRED FOR THE GRANTING OF SUCH

EXTRAORDINARY RELIEF.

The Court should deny Plaintiffs' requested injunctive

relief because they are unable to satisfy the factors necessary

to prevail. A party seeking a preliminary injunction must show

that: (1) the legal right underlying the claim is well-settled

and there is a reasonarle likelihood of ultimately prevailing on

the merits; (2) there is a likelihood that immediate and

irreparable injury will occur if relief is not granted; and (3)

on balance, that the benefits of the relief granted would

outweigh any harm such relief will cause other interested

parties. Crowe v. DeGioia, 90 N.J. 126, 132-134 (1982); See

also Mckenzie v. Corzine, 396 N.J. Super. 126, 132-34 (1982)

(stating that where plaintiffs do not seek to preserve the

status quo and instead would have the court significantly alter

the status quo, the correct approach is to determine whether all

the so-called Crowe factors are present).

The court should deny injunctive relief in this matter

because. Plaintiffs fail tb estab.lish _either a reasonable

likelihood of success on the merits or irreparable harm.

15

Moreover, the public interest weighs strongly against any form

of relief in this matter.

A. Plaintiffs have not demonstrated a

reasonable probability of success on the

merits.

i. New Jersey's license suspension

procedures do not violate Plaintiffs'

substantive due process rights under

the Federal Constitution.

The Fourteenth Amendment provides that "no State shall .

. deprive any person of life, liberty, or property, without due

process of law ." U.S. Const. Amend. XIV, ~ 1.

A Fourteenth Amendment due process analysis often requires:

1) protection of those "fundamental rights and liberties which

are, objectively, `deeply rooted in this Nation's history and

tradition,' ~] and `implicit in the concept of ordered liberty,'

such that `neither liberty nor justice would exist if they were

sacrificed, "' ; and 2) a "careful description" of the fundamental

liberty interest. Wash. v. Glucksberg, 521 U.S. 702, 720-21,

(1997) (internal citations omitted). While fundamental liberty

interests require that state infringement of fundamental rights

be "narrowly tailored to serve a compelling state interest,"

state actions that implicate anything less than a fundamental

right require only that the government show "a reasonable

relation to a legitimate state interest to justify the action."

Id. at 722.

16

Fundamental rights are those rights that bear a relation to

the right of autonomy or privacy. These rights include the

right to marry, procreate, use birth control, refuse medical

treatment, vote, freedom of speech, freedom of association,

freedom of religion and freedom to travel freely among the

states. See e•g• Griswold v. Connecticut, 381 U.S. 479 (1965)

(striking down an 1879 law providing that "any person who uses

any drug, medicinal article or instrument for the purpose of

preventing contraception shall be fined. or imprisoned. .

."); See also Roe v. Wade, 410 U.S. 113 (1973) (striking down

Texas' abortion laws under certain circumstances); Lawrence v.

Texas, 539 U.S. 558 (2003) (striking down Texas' anti-sodomy

statute, which made engaging in "deviant sexual intercourse with

another individual of the same sex" a Class C misdemeanor). The

fundamental rights are specifically delineated by caselaw and

the United States Constitution. The right to a driver's license

is not within these rights and is not afforded strict srutiny.

Plaintiffs' argument that intermediate scrutiny should. apply is

unsupported by law. The Supreme Court has only held

intermediate .scrutiny to apply to gender, United States v.

Virginia, 518 U.S. 515 (1996), and possibly illegitimacy, Clark

v. Deter, 486 U.S. 456 (1988).

17

The United States Supreme Court has ruled that the

Fourteenth Amendment applies to deprivation of an issued

driver's license by a state. Dixon v. Love, 431 U.S. 105, 112

(1977). "Suspension of issued licenses... involves state action

that adjudicates important interests of the licensees. In such

cases the licenses are not to be taken away without that

procedural due process required by the Fourteenth

Amendment." Bell v. Burson, 402 U.S. 535, 539 (1971).

However, the Supreme Court has made clear that the

suspension of a driver's license, while partially protected by

the Fourteenth Amendment, is only unconstitutional in the

absence of sufficient due process. Further, because the right

to a driver's license is not a fundamental right, it is

Plaintiffs' burden to show that New Jersey's suspension of their

drivers' licenses is not rationally related to a legitimate

state interest. Ferguson v. Skrupa, 372 U.S. 726 (1963) (holding

that "the burden is on one complaining of a due process

violation to establish that the legislature has acted in an

arbitrary and irrational way.").

Here, Plaintiffs argue that disqualifying them from

driving, regardless of their ability to pay, contravenes the.

Act's purpose of -increasing child-support payments, and thus is

not reasonably related to the state's legitimate interest in

enacting the statute. However, the "burden is on the one

E~3

attacking the legislative arrangement

conceivable basis which might support it."

U.S. 312, 320 (1993).

to negate every

Heller v. Doe, 509

Our Legislature has recognized that "the timely payment of

child support promote [s] the best interests of all families with

children[.]" N.J.S.A. 2A:17-56.7b. To that end, the statute

provides an incentive for holders of drivers' licenses to

satisfy past due child support obligations. See, e.g., Thompson

v. Ellenbecker, 935 F. Supp. 1037 (D.S.D. 1995) (holding that a

law, which placed restrictions on an obligor's license to drive

due to the non-payment of child support is not arbitrary or

irrational). See also Amunrud v. Department of Soc. & Health

Servs., 124 Wash. App. 884, 893(2004) (reasoning that, as a

sanction, driver's license suspensions are so effective as to

justify their severity). As such, there is a rational

relationship between the revocation of a driver's license under

N.J.S.A. 2A:17-56.44 and the State's interest in enforcing child

support orders. Nor is the statute arbitrary or irrational.

For those reasons, the provisions of the Act providing for

license suspension by operation of law survive rational basis

review.

Other courts - considering legislation similar to the Act

have reached a similar conclusion. See Amunrud v. Board of

Appeals, 158 Wn.2d 208, 224 (Wash. 2005); State v. Beans, 965

Fes'

P.2d 725, 727 (Alaska 1998); Tolces v. Trask, 76 Cal. App. 4th

285, 291-92 (1999); Thompson v. Ellenbecker, 935 F. Supp. 1037,

1040 (D. S.D. 1995).

Therefore, any claims that Plaintiffs' substantive due

process rights under the federal Constitution have been violated

must be dismissed because the revocation of a driver's license

does not implicate a fundamental right and it is rationally

related to the State's interest in enforcing child support

orders.

ii. Even under the heightened protection

offered by the New Jersey Constitution,

the State's license suspension

procedures do nat violate Plaintiffs'

substantive due process rights.

"Although the federal Constitution may remain as the basic

charter, state Constitutions may serve as a supplemental source

of fundamental liberties." Right to Choose v. Byrne, 91 N.J.

287, 300, (1982). State constitutions, thus, can provide

additional freedoms and restrictions on a state legislature's

power. See State v. Schmid, 84 N.J. 535, 553 (1980); State v.

Saunders, 75 N.J. 200, 225-26(1977) (Schreiber, J., concurring).

However, even with the heightened protections offered under the

New Jersey Constitution, Plaintiffs' claims are meritless.

A "state statute does not violate substantive due process

if [it] reasonably relates to a legitimate legislative purpose

and is not arbitrary or discriminatory." Greenberg v.

20

Kimmelman, 99 N.J. 552, 563 (1985) (citing Nebbia v. New York,

291 U.S. 502, 537 (1934)). Therefore, a statute will survive a

substantial due process challenge if it is supported by any

conceivable rational basis. Id. (citing Williamson v. Lee

Optical of Oklahoma, 348 U.S. 483, 488 (1955); United States v.

Carolene .Prods., 304 U.S. 144, 152 (1938). See also Heller v.

Doe, 509 U.S. 312, 320 (1993) ("A statute is presumed

constitutional and the `burden is on the one attacking the

legislative arrangement to negate every conceivable basis which

might support it."') (citations omitted); Sammon v. New Jersey

Bd. of Med. Exam'rs, 66 F.3d 639, 645 (3d Cir. 1995) ("A court

engaging in rational basis review is not entitled to second

guess the legislature on the factual assumptions or policy

considerations underlying the statute."); Congrats Assn of E.

Pa. v. City of Phila., 6 F.3d 990 (3d Cir. 1993) ("A

classification will pass the rational basis test if it is

`rationally related to a legitimate government purpose."')

(quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432

(1985)) .

Where a "fundamental right" is implicated, courts apply a

more exacting standard. Id. at 564. "`[O]nly fundamental

rights and liberties which are deeply rooted in this Nation's

history and tradition and implicit in the concept of ordered

liberty "' are afforded substantive due process protection.

21

River Nile Invalid Coach & Ambulance, Inc. v. Velez, 601 F.

Supp. 2d 609, 621 (D.N.J. 2009) (quoting Chavez v. Martinez, 538

U.S. 760, 775 (2003)); Lewis v. Harris, 188 N.J. 415, 422

(2006). Once a fundamental right is identified, a plaintiff

must allege a deprivation by government conduct that "shocks the

conscience." Chainey v. Street, 523 F.3d 200, 219 (3d Cir.

2008). Whether an incident "shocks the conscience" is a matter

of law for the courts to decide. Benn v. Universal Health Sys.,

371 F.3d 165, 174 (3d Cir. 2004). "With the exception of

certain intrusions on an individual's privacy and bodily

integrity, the collective conscience of the United States

Supreme Court is not easily shocked." Rivkin v. Dover Twp. Rent

Leveling Bd., 143 N.J. 352, 366 (1996) (citing Irvine v.

California, 347 U.S. 128, 133 (1954)). The same two step

inquiry governs the substantive due process analysis under

Article I,. Paragraph 1 of the New Jersey Constitution. Lewis,

188 N.J. at 434 (adopting "the general standard followed by the

United States Supreme Court in construing the Due Process of the

Fourteenth Amendment").

With regard to the threshold inquiry, Plaintiffs do not

have any protected right to a driver's license. Courts have

repeatedly held that- the ability to operate a vehicle in New

Jersey "is a privilege, not a right." State v. Nunez, 139 N.J.

Super. 28, 30 (Law Div. 1976). Thus, it is clear that the

22

ability to operate a motor vehicle is not a fundamental right

requiring heightened scrutiny. For the same reasons stated in

section T.A.i. above, revocation of a driver's license is

rationally related to the State's interest in enforcing child

support orders. Therefore, Plaintiffs' substantive due process

rights under the New Jersey Constitution have not been violated.

iii. New Jersey's license suspension

procedures do not violate Plaintiffs'

procedural due process rights.

Procedural due process requires "the opportunity to be

heard `at a meaningful time and in a meaningful manner."'

Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong

v. Manzo, 380 U.S. 545, 552 (1965)). In order to establish that

a governmental entity has violated procedural due process,

Plaintiffs must (1) identify a private interest affected by the

official action; (2) the risk of erroneous deprivation of this

interest v.ia the procedures used; and (3) the government's

interest and burdens that additional or substitute procedural

requirements would entail. Mathews, 424 U.S. at 335.

Plaintiffs must receive ample due process, including

hearings at a meaningful time and in a meaningful manner. Doe

v. Poritz, 142 N.J. 1, 12 (1995). Thus, the minimum

requirements of due process, are notice and the opportunity to.

be heard. Ibid. This process protects against a possible risk

of "erroneous deprivation".

23

When a driver's license is the interest at stake,

procedural due process requires only an opportunity for a fair

hearing prior to suspension. Bell v. Burson, 402 U.S. 535

(1971) .

A suspension that occurs "by operation of law" is not

synonymous with failure to provide a hearing, contrary to what

Plaintiffs assert. By the time an obligor is summoned to court

upon the issuance of a "bring to court" warrant and his or her

driver's license is simultaneously suspended, the opportunity

for a fair hearing has already occurred and the obligor has

either availed himself or herself of that opportunity or not.

Thus, all appropriate enforcement methods to collect have

already been exhausted.

Here, Plaintiffs had an opportunity to be heard but either

(1) failed to appear necessitating a warrant to bring them into

court or (2) appeared, had a hearing, and then failed to comply

with the court-ordered child support obligation necessitating a

warrant. Plaintiffs contend that the court should issue the

"bring to court" warrant without an automatic suspension of the

obligor's driver's license. However, if the obligor failed to

appear for the hearing initially or failed to comply with the

court-ordered child support plan, there is little incentive for

the obligor to appear in court unless he/she may face the

suspension of his/her driving privileges.

24

In the case of "bring to court" warrants, the obligor is

notified almost immediately of the suspension and generally has

an opportunity, within three days, to either pay to restore the

driver's license or prove either extenuating circumstances or

compliance to a judge who can then choose to vacate the license

suspension order. Due to the brief nature of the license

suspension, the hardship to the obligor is minimal.

In this case, Plaintiffs are deemed to have received were

notice of the possibility of a license suspension at multiple

points in time and in various forms upon the establishment of a

child support order. Plaintiffs had multiple opportunities to

contest arrearages, ask for modifications, set up payment plans,

and receive Ability-to-Pay determinations by the CSHO and

subsequently a judge. A driver's license suspension only occurs

if an obligor fails to appear for an ELR hearing or fails to pay

following the ELR hearing. In being summoned to an ELR hearing,

obligors have received adequate notice of the hearing and the

consequences of not attending.

Thus, Plaintiffs due process rights have not been violated

here, and Plaintiffs cannot succeed in demonstrating a

likelihood of success on the merits.

25

B. Irreparable injury will not result if this

Court denies Plaintiffs' request for a

preliminary injunction.

Plaintiffs will not suffer irreparable injury if the Court

does not grant Plaintiffs' request for injunctive relief.

The United States Supreme Court examined the question of

irreparable injury in the context of driver's license

suspensions in Mackey v. Montrym, 443 U.S. 1 (1979). In that

case, the petitioner, state registrar of motor vehicles in

Massachusetts, suspended the respondent's driver's license based

on the respondent's refusal to take a breathalyzer test upon his

arrest under suspicion of driving while intoxicated, pursuant to

that state's implied consent law. The respondent denied a "same

day" hearing before the petitioner, and sued in court alleging

that Massachusetts' implied consent law was unconstitutional

because it authorized the suspension of the respondent's

driver's license without providing an opportunity for a pre-

suspension hearing.

Under the Massachusetts' statute, the respondent could have

contested the suspension at a hearing before the registrar at

any time after surrendering his license. Id. at 7. Upon filing

suit, the respondent claimed violations of his due process and

sought a temporary restraining order enjoining the suspension of

his license. The District Court granted the injunction,

reasoning that the respondent was entitled to some form of pre-

26

suspension hearing. Id. at 8. The United States Supreme Court

reversed and remanded, holding that the statute was not

violative of due process. Upon appeal, the Court used the

balancing factors in Eldridge to examine the property interest

at issue and the possibility of irreparable harm without a pre-

suspension issue. Ibid. The Court found that the property

interest was not substantial enough to require a pre-suspension

hearing. Ibid. In doing so, the Court relied on Dixon v. Love,

another United States Supreme Court case wherein a similar

statute suspending driver's licenses for up to a year was

contested in Illinois. Dixon v. Love, 431 U.S. 105 (1977). In

Love, hardship relief was only available to a driver after a

driver's license was suspended and a hardship determination was

made. The Mackey Court stated that "[t]he duration of any

potentially wrongful deprivation of a property interest is an

important factor in assessing the impact of official action on

the private interest involved" and that "when prompt

postdeprivation review is available for correction of

administrative error, [courts] have generally required no more

than that the predeprivation procedures used be designed to

provide a reasonably reliable basis for concluding that the

facts justifying the official action are as a responsible

governmental official warrants them to be. Id. at 12-13.

27

While Mackey held that irreparable injury could result from

suspension of a driver's license, the Court elaborated by

stating that such injury only resulted upon the passage of a

certain amount of time. Integral to this decision was the

Supreme Court's examination of the "appropriate timing of the

legal process due to a licensee". The Love Court analyzed the

property interest in possession of a driver's license and the

procedural due process afforded to a license holder facing

suspension in the context of Eldridge, supra

Unlike the social security recipients

in Eldridge, who at least could obtain

retroactive payments if their claims were

subsequently sustained, a licensee is not

made entirely whole if his suspension or

revocation is later vacated. On the other

hand, a driver's license may not be so vital

and essential as are social insurance

payments on which the recipient may depend

for his very subsistence. [] The Illinois

statute includes special provisions for

hardship and for holders of commercial

licenses, who are those most likely to be

affected by the deprival of

driving privileges. [] We therefore conclude

that the nature of the private interest here

is not so great as to require us "to depart

from the ordinary principle, established by

our decisions, that something less than an

evidentiary hearing is sufficient prior to

adverse administrative action."

Dixon v. Love, 431 U.S. 105, 113(1977)

(internal citations omitted) (emphasis

added)

m

The Mackey Court, relying on Dixon, found that the risk of

irreparable harm would be minimized in both cases through the

imposition of a post-deprivation hearing and reasoned that:

[t]he duration of any potentially wrongful

deprivation of a property interest is an

important factor in assessing the impact of

official action on the private interest

involved. (] ... [F) allure to consider the

relative length of the suspension periods

involved in Love and the case at bar, as

well as the relative timeliness of the

postsuspension review available to a

suspended driver, was erroneous. Neither the

nature nor the weight of the private

interest involved in this case compels a

result contrary to that reached in Love.

Mackey v. Montrym, 443 U.S. 1, 12 (1979).

New Jersey courts have also stated that deprivation of a

property or liberty interest pursuant to an established state

procedure is constitutional even without a pre-deprivation

hearing if a post-deprivation remedy is available. Rivkin v.

Dover Tp. Rent Leveling Bd., 277 N.J. Super. 559, 563, (App.

Div. 1994). In these cases, exigency or "the impracticality of

providing any meaningful pre-deprivation process can, when

coupled with the availability of some meaningful" post-

deprivation review satisfies the requirement of procedural due

process. Ibid. (quoting Parratt v. Taylor, 451 U.S. 527

(1981))

Thus, as in Mackey and Love, the interest at issue is not

so vital as to require a pre-deprivation hearing. Even absent

29

this requirement, however, New Jersey provides the opportunity

for a hearing prior to the deprivation of the driver's license.

Further, as in Love, the statutes and procedures challenged here

provide notice, opportunity for a hearing and immediate post-

deprivation relief to the obligor. The process provided to

Plaintiffs here was consistent with the requirements set forth

in Mackey and Love and thus Plaintiffs and the putative class

are not subject to irreparable harm if the preliminary

injunction is granted.

C. The weighing of the equities favors the

denial of the injunction.

Plaintiffs offer no authority to support their argument

that a weighing of the equities favors the entry of the

preliminary injunction. However, ample case law and facts exist

in support of denying the injunction.

In Love, the Court found that the due process provided by

establishing pretermination hearings in every case prior to

suspension was outweighed by the substantial public interest in

administrative efficiency. Love, 431 U.S. at 114. "Giving

licensees the choice thus automatically to obtain a delay in the

effectiveness of a suspension or revocation would encourage

drivers routinely to request full. administrative hearings."

Ibid. (relying on Mathews v. Eldridge, 424 U.S. at 347. The

procedures in use by the New Jersey courts already provide

obligors ample opportunities to contest child support orders,

request modifications and exceptions based on hardship, and to

challenge a license suspension. Any additional process would

certainly burden the judicial system of this state and would be

contrary to the public interest. Further, as in Love, a far

more important public interest is at stake here in which New

Jersey has expressed a serious interest: the enforcement of

child support payments by the parents responsible for those

payment. N.J.S.A. 2A:17-56.7b. Further, invalidation of the

license-suspension provisions in the Act will require a change

in policy in practice in New Jersey that is less punitive and

more closely aligned with federal trends. The invalidation

could also lead to a drastic reduction in the amount of monies

collected without the consequence of license suspension.

Thus, the public interests present here favor denial of the

preliminary injunction.

31

POINT II

THIS COURT SHOULD DENY PLAINTIFFS' REQUEST

TO BE CERTIFIED AS A CLASS BECAUSE

PLAINTIFFS CANNOT MEET THE REQUIREMENTS

NECESSARY FOR CLASS CERTIFICATION.

Plaintiffs seek certification as a class under R. 4:32-

1(b)(2) Plaintiffs ultimately bear the burden of demonstrating

that they can meet each of the requirements of R . 4 : 3 2 -1 (b) (2) .

In order to maintain a class action, Plaintiffs must show that

Defendants opposing the class have "acted or refused to act on

grounds generally applicable to tie class, thereby making

appropriate final injunctive relief or corresponding declaratory

relief with respect to the class as a whole." Ibid.

that:

New Jersey Court Rule 4:32-1(a) requires Plaintiffs to show

(1) the class is so numerous that j oinder ofall members is impracticable, (2) there arequestions of law or fact common to theclass, (3) the claims or defenses of therepresentative parties are typical of theclaims or defenses of the class, and (4) therepresentative parties will fairly andadequately protect the interests of theclass.

New Jersey Court Rule 4:32(3) also requires that:

[T] he questions of law or fact common to the

members of the. class predominate over any

questions affecting only individual members,

and that a class action is superior to other

available methods for the fair and efficient

adjudication of the controversy. The factors

pertinent to the findings include:

32

(A) the interest of members of the class inindividually controlling the prosecution ordefense of separate actions;(B) the extent and nature of any litigationconcerning the controversy already commencedby or against members of the class;(C) the desirability or undesirability inconcentrating the litigation of the claimsin the particular forum; and(D) the difficulties likely to beencountered in the management of a classaction.

This Court must deny class certification to Plaintiffs

because Plaintiffs cannot demonstrate (1) that there are

questions of law or fact common to the class; (2) that their

claims or defenses are typical of the claims or defenses of the

class; and (3) that a class action is superior to other

available methods for the fair and efficient adjudication of

this case.

A. Plaintiffs have failed to establish theexistence of questions of law or fact incommon to the class.

Plaintiffs assert here that commonality exists because each

member of the putative class allegedly "has been deprived of

rights granted them by the United States and New Jersey

Constitutions and the laws of this State." Pl. Br., p. 63.

Plaintiffs offer no further explanation in support of this

argument other than "there is commonality of interest- among the

members of the putative plaintiff class." Id. Plaintiffs have

not established that their rights under the United States and

33

New Jersey Constitutions as well as the laws of New Jersey have,

in fact, been violated. Even if those rights have been

violated, Plaintiffs have not met the basic standard required

for showing commonality through their blanket assertions.

"In order to ascertain whether or not common questions

predominate, [a court] must analyze the legal issues and the

proofs needed to sustain them." Gross v. Johnson & Johnson-

Merck Consumer Pharms. Co., 303 N.J. Super. 336, 343 (Law Div.

1997). Individual issues of causation, reliance and damages do

not preclude class certification. Strawn v. Canuso, 140 N.J.

43, 67(1995). However, common questions of law or fact must

outweigh individual questions in order to satisfy the

predominance requirement. See Saldana v. City of Camden, 252

N.J. Super. 188, 196-99 (App. Div. 1991).

"In considering the issue of

predominance under 4:32-1(b)(3), the goal isto `save time and money for the parties and

the public and to promote consistent

decisions for people with similarclaims.' [] Also, all issues need not be

identical among all members of the class;common questions must simply

predominate. [] "If a 'common nucleus of

operative facts' is present, predominance

may be found . " [ ] .

Id. at 586-587(internal citations omitted).

Although each Plaintiff here is an obligor who has faced

license suspension "by operation of law", a high degree of

34

individuality exists among the four named Plaintiffs as to the

procedures used leading to the eventual license suspension.

The child support enforcement process is a highly

individualized one, often taking into account the details of a

single obligor's life in determining the most appropriate

enforcement mechanism. Plaintiffs acknowledge such in their

brief by stating that the court must have an "individuated

hearing" so the court can separate the unwilling from the unable

to pay obligor. P1 . Br. , p. 12. Plaintiffs also note that the

court must consider the factors listed in N.J.S.A. 2A:17-

56.41(3)(a) on an "individuated basis" at support enforcement

hearings when a license suspension is being considered. P1.

Br., p. 16.

Given that the crux of Plaintiffs' allegations surrounding

the procedure leading to issuance of a "bring to court warrant"

and concurrent license suspension, Plaintiffs should identify a

single procedure that is defective to obtain relief. However,

no such single procedure exists because the road to a "bring to

court" warrant can be different for every individual. Thus,

individual issues of law and fact predominate here and

Plaintiffs cannot establish .commonality.

Because Plaintiffs have failed to establish questions of

law or fact common to the class, this Court should deny their

motion for class certification.

35

B. Plaintiffs have failed to establish that

Plaintiffs' claims or defenses are typical

of the claims or defenses of the class.

Class certification also must be denied because Plaintiffs

have not satisfied the typicality requirement of R. 4:32(a) A

plaintiff's claim is typical of the claims of the class if it

arises from the same event or course of conduct which has given

rise to the claims of the other class members. Gross, 303 N.J.

Super., supraat342.

Plaintiffs assert that typicality exists because

"[P]laintiffs are being systematically denied procedural,

substantive, and statutory rights guaranteed to them by the

United States and New Jersey Constitution and laws." Pl. Br.,

p. 64. However, the relief that Plaintiffs seek here will not

necessarily resolve the alleged harm suffered by all class

members. The claims of each putative class member do not arise

from the same event or course of conduct of the claims of other

putative class members. Plaintiffs complain of a particular

procedure - the driver's license suspension that occurs when the

enforcing court issues a bench warrant. The license suspension

process varies for each person on a case-by-case basis,

considering individual case-specific compliance and enforcement

history, the personal financial -circumstances of each obligor,

and the need perceived by judges and CSHO's to issue a bench

warrant. Invalidating the automatic license suspension will not

36

necessarily protect other putative class members from any and

all license suspension unless the exact same circumstances as to

those individual considerations also exist for that specific

class member.

Because Plaintiffs have failed to establish that the claims

or defenses of Plaintiffs are typical to the claims or defenses

of the putative class, their motion for class certification

should be denied.

C. Plaintiffs have failed to demonstrate that aclass action is superior to_ alternativemethods of adjudication.

Plaintiffs have not addressed the final prong of R. 4:32,

requiring that a class action is superior to alternative methods

of adjudication.

The word "superior" implies a "comparison with alternative

procedures such as a test case or joinder of claims."

Saldana, supra, at 199, quoting In re Cadillac, 193 N.J. 412,

436 (1983). The comparison requires:

(1) an informed consideration of alternativeavailable methods of adjudication of eachissue, (2) a comparison of the fairness toall whose interests may be involved betweensuch alternative methods and a class action,and (3) a comparison of the efficiency ofadjudication of each method.

In. re Cadillac, 93 N.J. at .436.

This action is different from other cases where parties

sought class certification, such as In re Cadillac and Saldana.

37

Plaintiffs seek only injunctive relief and counsel fees if

successful in their suit. The putative class in both In re

Cadillac and Saldana sought monetary relief that was only

granted to each member of the class as a result of the class

certification. Here, if Plaintiffs succeed and the court grants

an injunction and/or ultimately strikes down portions of the

Act, obligors statewide will no longer face license suspension

via "bring to court" warrants. Relief is not just specific to

the putative class. Thus, a class action is not necessary here

because if the Court grants the requested relief, it would apply

to all obligors navigating the child support enforcement

process.

Because certification of the class is simply not necessary,

the potential procedural delays that may apply to a class

action, such as locating and serving all class members, could

hinder judicial efficiency, not promote it. The interests of

fairness and efficiency are thus both adequately served through

a disposition of the case without class certification.

As Plaintiffs have failed to demonstrate that a class

action is superior to alternative methods of adjudication, their

motion for class certification should be denied.

CONCLUSION

For the foregoing reasons, this Court should deny

Plaintiffs' request for injunctive relief, deny Plaintiffs'

motion for class certification and dismiss Plaintiffs' verified

complaint with prejudice.

Dated: Cp~~,~ /.JI

Shana Bellin

Deputy Attorney General

K~%]