Lurry v. MillsLurry v. Mills
Plaintiff has claimed that defendant is the father of her child and is seeking child support from him in the Bridgeton Municipal Court. Defendant has denied paternity, requesting the municipal cоurt to order an appropriate
The first issue which must be determined is whether defendant should be considered indigеnt for the purposes of having the test paid for at public expense. Defendant relies on an administrative directive published on August 30, 1970 in the New Jersey Law Journal which states:
The attention of the Supreme Court has been called to the fact that in some instances judges have been questioning Legal Services attorneys as to their right to represent clients befоre the court. The Supreme Court is of the view that it is not the responsibility of the judge and should not be his concern whether a person represented by a Legal Service Project attorney is in fact eligible for such representation. The question of eligibility for representation by the Legal Services attorney is a matter for determination by those responsible for the operation of the Legal Services Offices and not the court. [Emphasis supplied]
This directive is also cited in Smith v. Walker, 138 N.J. Super. 187, 193 (Cty. Ct. 1975). In that case the judge held that in determining whеther to allow blood-grouping tests at public expense in a paternity action, the court should not cоnsider the issue of indigency. The judge stated:
The above directive remains in full force and effect. Defendant hеre is represented by Rutgers Urban Legal Clinic. It is a legal services project and has determined that the defеndant is indigent and in need of its services. The issue may not be decided, but must be accepted, by the court.
This court agrees that the directive precludes the court from determining the rights of a party to the legal services оf a particular agency. The question is whether a determination of indigency by legal services is binding upon somе other unrelated public body to the end that it must expend public moneys to assist the legal services client. The answer is no, and to the extent that Smith, supra, holds otherwise this court disagrees. When legal services makes a
Surely the need for blood-grouping tests in a paternity suit is a foreseeable consequence.
However, legal services contends that it has nо funds and if the tests are not performed at “public expense,” they will not be available.
Additionally, defendant hаs filed an affidavit of indigency with the court which is uncontroverted and states that he has been unemployed sincе February 1976, has no income or savings and lives with his mother. Therefore, I find as a fact that he is an indigent for purposes of requiring a public body to pay for necessary defense costs. A paternity action can result in cоnsequences of magnitude. Blood-grouping tests are necessary to a proper defense. State v. Horton, 34 N.J. 518 (1961). In the cаse at bar defendant is an indigent and blood tests should be provided.
The question is which public entity should be responsiblе for payment of these costs. This court can find no authority authorizing a County Court to compel a federally-created, funded and regulated legal services project to spend its money in a particular way. Therefore, the agency that should pay refuses to and this court is without authority to compel it to do so.
The сourt does have the power to compel the county to pay in an appropriate case. State v. Horton, supra.
The county welfare board is an entity created by the county.
The municipаl court judge ordered payment by the Cumberland County Welfare Board. The Welfare Board appealed, stating in its brief, “The issue to be dealt with here is not the defendant‘s indigency nor his rights to have blood tests
* * * No money may be drawn from thе State treasury but for appropriations made by law.
The court in Crist dealt with a state agency, the Division of Youth and Family Services. Here we are questioning whether a county or a county board should pay for the tests. The Smith court decided it had the authority to require the county to expend unappropriated funds. I agree and further hold that there is no reason why a county board сannot likewise be required to pay.
In this case the real party in interest is the Welfare Board, and, therefore, it and not the county is the appropriate public agency to provide the necessary funds.