NJ Constitution Enlarges Right To Appointed Counsel In Civil Cases

Anne Pasqua, et al. v. Hon. Gerald J. Council, et al. (A-131-04)
New Jersey Supreme Court
March 8, 2006
http://lawlibrary.rutgers.edu/courts/supreme/a-131-04.opn.html

The New Jersey Constitution guarantees the right to appointed counsel for indigent people in numerous situations, including in civil cases where the person does not face the theat of incarceration. Could the New Jersey Constitution be used to secure the right to appointed counsel in immigration court?

In the Pasqua case, the New Jersey Supreme Court ruled that under both the US Constitution and the New Jersey Constitution, indigent parents facing the threat of incarceration at child support enforcement hearings have the right to appointed counsel.

The New Jersey Constitution also guarantees the right to appointed counsel for indigent people facing the substantial loss of driving privileges, significant monetary sanctions, temporary loss of parental rights, and tier classifcation in a Megan's Law proceeding. The NJ Supreme Court saw no principled reason why the right to appointed counsel is guaranteed in each of those situations but would not also be provided to parents who face jail for allegedly refusing to pay child support willingly. The right arises out of Article I, Paragraph 1 of the NJ Constitution regarding due process rights.

Can we not also argue that the harsh consequence of deportation (often permanent separation from one's family and children) also triggers a right to appointed counsel under the New Jersey Constitution? This is not the only area where rights under the New Jersey Constitution might offer possibilities for defenses in immigration court -- it is possible that a motion to suppress evidence can be pursued based on the rights embodied in the NJ Constitution.

Aggravated Felony Case Discussions

Divisibility: Canada v. Gonzales, No. 03-40051 (2d Cir. May 18, 2006): can divide statute for assault of peace officer to be a crime of violence by separating out portions of the statute, even if those portions were not separately numbered subsections.

Crime of Violence: Vargas-Sarmiento v. DOJ, No. 04-0241, (2d Cir. May 8, 2006): under section 16(b), crime of violence includes felonies that, by their nature, involve a substantial risk of using physical force during the crime. The risk must be intentional, not merely a negligent act. Burglary, hiring a hit man, unlawful imprisonment, statutory rape, and escape have been held by various courts to be crimes of violence. DWI is not a crime of violence. In this case, the Second Circuit held that NY first-degree manslaughter is a crime of violence. Physical force can include placing poison where it'd be eaten or wearing away car brake pads so that the force of an accident will hurt the driver.

New Video On Immigrants Rights Now In Production

A group of people are working with non-profit and community organizations in New Jersey (along with contacting others in New York) to create a short documentary video to help immigrants learn their rights if stopped by the police or by immigration authorities! The project is in production and is scheduled to produce the video in English and Spanish. Please let us know if you can help us produce it in other languages!

Keep tuned here or comment on this posting if you would like more information or updates on the video. The goal is to help immigrants understand how to protect themselves, especially when many immigrants are afraid of immigration-related raids due to rumors (many of the rumors are probably unfounded, but communities are still very anxious).

Kyl/Cornyn: three measley misdemeanors disqualifies earned legalization

It is horrible to hear that a Kyl-Cornyn amendment would automatically reject without any exception people who have three small misdemeanor fines on their record. This is much too harsh, especially when you consider how difficult it is to qualify for earned legalization. The people who can somehow achieve all the other requirements for earned legalization should not be thrown away just for three small misdemeanor fines.

This means someone who jumped a turnstile three times will be blocked without any discretion from earned legalization even if the person paid taxes for decades and was otherwise law-abiding. Or someone who got a small fine for vague disorderly conduct, fare jumping, or three card monte a total of three times. This kind of pettiness to make an absolute block on earned legalization is horrible public policy.

Bizarrely, the language ignores the penalty imposed for the misdemeanors. So, two eleven-month prison terms for two misdemeanors is considered by the Senate to be fine, but three misdemeanors that led to no prison time and $50 in fines is considered completely unacceptable to the Senate, with no discretion. Ignoring the penalty imposed seems to be a wrong-headed approach.