Remembering David Perry Davis

I was greatly saddened to learn a few weeks ago that David Perry Davis died unexpectedly on October 3, at the age of 55.

David was a passionate and principled advocate who, probably more than any other individual, improved the quality of justice in the New Jersey court system for poor people who fall behind on child support.

In addition to the countless clients and colleagues whose lives he touched and improved through his practice as a family lawyer, David won two landmark court decisions that protect parents who owe child support from being locked up or barred from driving just because they cannot afford to pay.

Pasqua v. Council, 186 N.J. 127, decided by the NJ Supreme Court in 2006, held that before judges can send parents to jail to coerce them to pay child support at ability-to-pay hearings – also referred to as ”pay or stay” – the government must provide them with a lawyer if they cannot afford one on their own. Because the government was unable or unwilling to provide lawyers for them, it stopped locking up indigent people who owe child support.

More recently, in Kavadas v. Martinez, MER-L-1004-15, decided just about a year ago, in December 2018, Mercer County Assignment Judge Mary Jacobson ruled that courts cannot automatically suspend a parent’s driver’s license over unpaid child support without providing advance notice, opportunity to be heard and for indigent obligors, appointed counsel. Once again, rather than appointing counsel, the court system ceased automatic suspensions as of April 1 of this year.

Some might think that it is okay for the court system to come down hard on parents who are not meeting their legal obligations to their children.  But, as David was well aware, indigent parents might lack the ability to pay and also be unable to prove that fact to a judge because they also cannot afford a lawyer. Even putting aside questions of fairness to the parents who owe the money, locking up poor people or taking away their right to drive in order to coerce them to pay defeats the purpose by interfering with their ability to earn the money they need to do so. It hurts them without benefiting their children.

I met David in November 2000, during my first year at the New Jersey Law Journal, in a federal court room in Trenton. He was there to argue before U.S. District Judge Garrett Brown Jr. in opposition to a motion to dismiss the Pasqua case, which he had filed earlier that year as a putative class action under federal civil rights law.

David was pretty new at his job too, having graduated law school (Rutgers-Camden) only four years earlier, after which he spent a year clerking for Superior Court Judge Donald de Cordova in Family Court.

So there he was, a solo practitioner, with only three years’ experience as an attorney, taking on the whole state court system. The named defendants were Chief Justice Deborah Poritz, Administrative Director of the Courts Richard Williams and Judge Gerald Council, sued as a family court judge and as stand-in for all the other judges. To say David was an underdog is an understatement.

He had made it a point to have the lead plaintiff be a woman, Anne Pasqua, because he hated the term “deadbeat dads” and did not want that term used to describe the planitiffs and thus diminish the importance of what was at stake in the lawsuit.  He himself had been a custodial parent of a child whose mother failed to pay child support.

David told me that he had brought the case because, in the course of visiting clients who were locked up over support arrears, he became aware of other individuals incarcerated for the same reason who had been jailed as long as a month or more even though they had no ability to pay and could not afford a lawyer.

David took on the issue pro bono because he could not abide the injustice of locking up poor people for essentially being poor, creating a type of modern-day debtors’ prison.

In addition, he felt the law was clearly on his side. The New Jersey Supreme Court had ruled almost 30 years earlier in Rodriguez v. Rosenblatt, 58 N.J. 281 (1971), that defendants faced with a “consequence of magnitude” had a constitutional right to appointed counsel under the due process clause of the state constitution. Incarceration is clearly a consequence of magnitude and as of 2000, that term had been interpreted to also encompasses loss of driving privileges for drunk driving, classification of sex offenders under Megan’s Law, involuntary civil commitment and situations in which a significant fine could be imposed.

The case was a long shot and took years and lots of effort.

Judge Brown never ruled. Instead, in March 2001, he dismissed it based on the doctrine of Younger abstention, which bars federal courts from involving themselves in ongoing state judicial proceedings that implicate important state interests where the state proceedings afford an adequate opportunity to raise the federal claims.

David appealed that ruling to the U.S. Third Circuit Court of Appeals which, in January 2003, upheld Brown’s decision in a precedential opinion.

One month later, David refiled the case in state court.

His efforts on behalf of indigent child support obligors had already made a difference. In another case he brought on their behalf, Leonard v. Blackburn, MER-L-3761-01, he won a ruling in January 2002, later affirmed by the Appellate Division, A-5007-01, that people arrested for defaulting on child support must have an ability-to-pay hearing within 72 hours of their arrest, a holding subsequently embodied in a court directive. (The hearings are actually supposed to take place within a day or two. The 72-hour maximum was intended for arrests that occur on the weekend when courts are not in session.)

In the Pasqua state court action, David won at the trial court level in April 2003.  Mercer County Assignment Judge Linda Feinberg, also the judge in Leonard, found a right to an attorney under the Due Process Clause of the Fourteenth Amendment and also under Court Rule 5:3-4, which provides a right to counsel in Family Court matters that may result in institutional commitment or other consequence of magnitude.

The Appellate Division reversed in September 2004 but David pursued the matter to the New Jersey Supreme Court, which agreed with Feinberg and reversed, 6-0, in March 2006. The Court found a right to counsel under both the Due Process Clause of both the federal and state Constitutions.

Despite the significance of David’s legal victory and the enormous effort and expense to him, especially as a solo practitioner, to litigate Pasqua over the course of six years, the Supreme Court refused his request for an award of legal fees as a prevailing party under federal civil rights law. The Court said the defendants were immune.

It also denied him fees under the New Jersey Civil Rights Act, a new law that took effect on September 10, 2004, the same day as the Appellate Division decision in Pasqua. Because the Pasqua suit predated the law, the Court declined to even consider if Davis was entitled to fees.

Regarding where the lawyers were to come from to represent the parents, Judge Feinberg had suggested several possibilities, including assigned counsel from the pro bono list, lawyers from the  Office of County counsel and private attorneys.

The Supreme Court rejected the idea of assigning counsel, stating “We will not use our authority to impress lawyers into service without promise of payment to remedy the constitutional defect in our system.” Thus, in the absence of legislative funding to pay for such legal services, it said it would no longer use coercive incarceration on indigent support obligors.

That was how it was supposed to work but some judges apparently did not get the memo or would occasionally relapse into doing it the old way.  Following the Pasqua  ruling, I would hear every now and then from David that he had run across some judge who was still locking up poor parents without giving them lawyers and he was filing papers to put a stop to it. Just because he had not been paid did not mean he was off the job.

In May 2015, he took on the system once again, on the issue of license suspensions, filing the Kavadas case to protect the same vulnerable group of people—impoverished parents who had fallen behind on child support. They deserved lawyers and due process not just when the state wanted to lock them up to make them pay but when it took away their right to drive for that same purpose.

Kavadas was also a putative class action, brought under the New Jersey Civil Rights Act on behalf of parents who claimed they had their licenses suspended (and were subject to repeat suspensions) over outstanding child support, which they were unable rather than unwilling to pay.

David saw the automatic suspensions not only as unfair and counterproductive but as racist, in effect if not by design.

The Kavadas complaint cited figures from the federal Office of Support Enforcement showing that the license suspensions disproportionately impacted minorities and the poor. For example, 73% of child support arrears in New Jersey were owed by noncustodial parents who had no quarterly earnings (44%) or annual earnings of less than $10,000 (29%).  A mere 4% had annual earnings greater than $40,000.

And New Jersey was an outlier. Other states provided a hearing before suspending a driver’s license and, on average, handed out about 250 suspensions per year. In contrast, New Jersey had suspended 20,498 licenses in 2014, 20,381 (99.4%) of which were done automatically.

Once again, David’s lead plaintiff, Andreana Kavadas, was female. The defendants included the New Jersey Motor Vehicle Commission and its Chief Administrator Ray Martinez, along with Acting Attorney General John Jay Hoffman, and the Department of Human Services, which oversees child support.

I did not get to report on the case because I was gone from the Law Journal by the time it was commenced but David spoke with me about it and sought my opinion (I am a recovering lawyer) in the early stages, before we lost touch.

The case, which involved extensive discovery,  took more than three years to litigate. Most of that time was spent awaiting a decision after the parties argued cross motions for summary judgment in August 2016. Ever the optimist, David sent an email after the argument, expressing hope in the outcome and predicting it would take 45-60 days for a decision.

He saw the case as harder than Pasqua because it involved more “shades of gray.”  It was not just an either/or situation, to appoint counsel or not.  In an email sent out the night before the argument, he wrote “This one is about how much specificity must there be to a notice? Is general notice sufficient? How long is a determination at an Enforcement of Litigant’s Rights hearing valid? It’s not nearly so binary.” He added that he could “use any white-light / prayers / good thoughts that can be mustered tomorrow at 10:00.”

It took more than two years from oral argument before  Jacobson’s decision in December 2018. She held that license suspension was a consequence of magnitude requiring appointed counsel and directed the Motor Vehicle Commission, Probation Division (the part of the court system that enforces support) and the Division of Family Development in the Department of Human Services to work together to develop a process for providing advance notice of suspensions.

The case dragged on into 2019, in part due to a motion  for reconsideration filed by the Administrative Office of the Courts (AOC) on the ground that Jacobson lacked authority to direct the court system to provide mechanisms or procedures for appointing counsel, something only the Supreme Court could do. Jacobson agreed and vacated that part of her order on April 1, the same day automatic suspensions were halted.

The question of counsel fees also delayed a final resolution. David’s application for about $600,000 in fees and costs (for almost 900 hours of work at $400 per hour with a well-deserved 75% multiplier) described his thus-far uncompensated history of successful civil rights challenges and the “monumental burden” of  litigating Kavadas,  which interfered with his ability to take on paying clients. The fee issue was resolved by consent for an unknown amount and the parties stipulated to dismissal of the matter in late September, about 10 days before David’s death.

In addition to Pasqua, Kavadas and Leonard, David helped achieve at least two other protections with broad impact.

Ricks v. Fowler, No. FD-11-1012-06, in 2007, ended the unfair process whereby support paid for children subject to the “family cap” for welfare recipients was being taken by the state to repay welfare grants for other children in the household  (meaning the child support paid by a parent wasn’t benefiting his or her child).

In 2005, through the threat of a lawsuit, David got the Family Court to stop sending litigants to religion-based 12-step programs without offering them a non-religious alternative.

David didn’t confine his pursuit of justice to the New Jersey Family Court system. I remember hearing about his trips to Arkansas in support of the West Memphis Three, who were convicted as teenagers in 1994 in the murder of three young boys, supposedly as part of a Satanic ritual. After a series of documentaries raised serious doubts about  their guilt, the three were released in 2011, though were never officially cleared of the crimes.

It came as no surprise to read in David’s obituary that he was greatly concerned about how children were being treated at the U.S.-Mexico border and was planning to travel there to offer pro bono assistance.

I admired David’s idealism in believing in a more just world, his courage in taking on the powers that be to achieve that goal and his commitment in pursuing it over the years, without fanfare or financial reward.  And I was grateful for his unfailing courtesy and kindness to a reporter on deadline, no matter how busy he himself must have been.

Thank you, David, for fighting the good fight, for inspiring in me a renewed respect for the profession I abandoned and for trusting me to tell your story.  It was my privilege.