Monday, May 29, 2006

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

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.


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