D.N. v. K.M.

PER CURIAM.

D.N. filed a petition for certification in connection with the Appellate Division judgment that is reported at D.N. v. KM., 429 N.J.Super. 592, 61 A.3d 150 (App.Div.2013). Consistent with current law, the Appellate Division concluded that “the protections of due process do not require the appointment of counsel for indigents presenting or defending a private party’s civil domestic violence action.” Id. at 606, 61 A.3d 150. The dissent recommends that the Court grant certification in this case and examine whether counsel should be appointed for indigent citizens in civil proceedings under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35.

The Act itself does not authorize appointment of counsel for the parties in a domestic violence action. In that regard, New Jersey is not alone. Only one state provides for appointment of counsel for both parties under comparable civil domestic violence laws. See N.Y. CLS Fam. Ct. Act 262(a)(ii). Thus, without any statutory authority, a directive from this Court requiring appointment of counsel would rest on constitutional grounds.

To be sure, such a ruling would affect thousands of cases annually. For the last court year alone, from July 2012 through June 2013, there were approximately 15,800 hearings for final restraining orders, according to the Administrative Office of the Courts (AOC). The AOC estimates that the vast majority of plaintiffs and defendants in those hearings were not represented by counsel. By way of comparison, there were a total of about 1200 Madden1 appointments for the year, and roughly two-thirds of them were for contempt proceedings in domestic violence cases.

In any event, this case is not a good vehicle to embark on a constitutional analysis of the issue presented because, based on the record before us, petitioner did not assert that she was indigent or ask the trial court to appoint counsel to represent her. In a similar context in 2009, the Appellate Division declined to consider the right to appointment of counsel in connection with a final restraining order entered under the Act. Crespo v. Crespo, 408 N.J.Super. 25, 45, 972 A.2d 1169 (App.Div.2009), aff'd, 201 N.J. 207, 989 A.2d 827 (2010). The panel observed that “[t]he record does not reflect that defendant ever sought the appointment of counsel prior to or during the adjudication of this domestic violence matter. Accordingly, in the present setting, the issue is purely academic.” Ibid. The same is true here.

The petition for certification is denied. See R. 2:12-4.

Chief Justice RABNER and Justices LaVECCHIA, PATTERSON, and FERNANDEZ-VINA, and Judges RODRÍGUEZ and CUFF (both temporarily assigned) join in this per curiam opinion.

Justice ALBIN filed a separate, dissenting opinion.

1 Madden v. Delran, 126 N.J. 591, 601 A.2d 211 (1992) (upholding constitutionality of system of pro bono assignment of private counsel for indigent defendants).