NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiff Christina Baals was arrested and held in jail on a warrant for failure to appear for a child support enforcement hearing for five days without a court appearance until she paid her child support arrears. She filed a complaint alleging violations of the federal Civil Rights Act (CRA), 42 U.S.C. § 1983, and the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to-2. She now appeals from the order of December 21, 2012, dismissing her complaint, which was stayed until the order of April 5, 2013, which did not allow her to amend the complaint to add as individual defendants Acting Director Glenn A. Grant, J.A.D. and then Chief of Child Support Enforcement Services Richard R. Narcini.1 We affirm.

On Sunday, July 3, 2011, plaintiff was stopped by police in Monroe Township for a traffic violation. After an outstanding child support enforcement non-appearance warrant2 was discovered, she was taken to the Burlington County Jail. Due to overcrowding, she was later transferred to the Camden County Jail. She was released on Friday, July 8 after she paid $3,095 in arrearages.

Plaintiff was arrested and detained pursuant to Administrative Office of the Court (AOC) Directive #15-083 (Directive) that permits the court to issue an arrest warrant for obligors who fail to appear for an enforcement of litigants rights (ELR) hearing. The warrant must include the arrearage amount, identified as a "release payment" that may be paid to secure immediate release from custody.

If a delinquent obligor fails to appear for a scheduled enforcement hearing, the court may issue a warrant to arrest the obligor to compel her "expedited" appearance. After arrest, the obligor must be brought before a judge immediately, but in no event "later than 72 hours after [her] apprehension." This seventy-two-hour time-limit, not adhered to in plaintiff's case, was established by our Supreme Court in Pasqua v. Council, 186 N.J. 127, 153 (2006).

Plaintiff originally filed a complaint against the State of New Jersey alleging that she was entitled "to release on recognizance, or alternatively a bail to secure [her] appearance at the missed hearing." The complaint sought to certify a class of "hundreds if not thousands" of plaintiffs who were "held without bail after being arrested for failure to appear" in order to "vindicate the clear and unnecessary violation of their civil rights. . . ." Plaintiff alleged violations of substantive due process, equal protection and privileges and immunities under the federal constitution as well as violations under the CRA and NJCRA.

At oral argument on the State's dismissal motion, plaintiff agreed to voluntarily dismiss the CRA count,4 and the judge granted the State's motion to dismiss the complaint in its entirety because the State is not a person subject to suit pursuant to the NJCRA. The judge suspended his order dismissing the complaint for thirty days pending plaintiff's motion to amend the complaint. Plaintiff moved to amend the complaint to add Grant and Narcini. The judge denied the motion to add defendants because they were immune from suit.

I

Our review of the motion judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

Plaintiff claims that the State is a "person" capable of being sued under NJCRA. The NJCRA states that

The NJCRA was modeled after the CRA and is interpreted analogously. Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011) (finding that the District of New Jersey has "repeatedly interpreted [the NJCRA] analogously to § 1983"). For an entity to be liable under either the federal or state statute, it is necessary for a plaintiff to show that the defendant acted under color of state law. Wilson v. County of Gloucester, 256 F.R.D. 479, 488 n.13 (D.N.J. 2009).

The United States Supreme Court has held that the states, and state officials acting in their official capacities, are not "persons" within the meaning of the federal statute. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L. Ed. 2d 45 (1989). Analogously, the NJCRA cannot be interpreted to include the State of New Jersey. This is particularly true in light of the statutory definition of "person" set forth in N.J.S.A. 1:1-2 that excludes the State as a "person" except "when used to designate the owner of property which may be the subject of an offense. . . ."

II

Both Grant and Narcini are entitled to qualified immunity and legislative immunity. Unlike the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, the text of the NJCRA does not refer to any specific immunities. But, like the CRA, the NJCRA has been interpreted to contain the affirmative defense of qualified immunity. Ramos v. Flowers, 429 N.J.Super. 13, 24 (App. Div. 2012). Qualified immunity applies because plaintiff has failed to demonstrate that either defendant acted outside the scope of his duties or violated a clear constitutional mandate.

A government official is entitled to qualified immunity from liability for civil damages under the CRA, and by extension the NJCRA, unless his conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982). A right is clearly established when it is "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L. Ed. 2d 523, 531 (1987). See Schneider v. Simonini, 163 N.J. 336, 353-54 (2000) (applying this analysis to the NJCRA). This requirement has a temporal component that "obligates a court to judge an official's conduct based on the state of the law and facts that existed at the time of the alleged statutory or constitutional violation." Id. at 355.

Plaintiff argues that defendants violated her right to bail as well as her due process right to appear before a judge immediately after arrest. No case in New Jersey, reported or otherwise, identifies a right to bail for those confined for failure to appear at an ELR hearing. A "release amount," comparable to but not the same as bail, is listed on the warrant. As the State correctly notes, the relevant inquiry for both of these named defendants is whether, at the time the Directive was promulgated, they were aware of and willfully disregarded a clearly established right to bail in this civil confinement context. At the time the Directive was promulgated, as is true today, there was no express right to bail for those confined for failure to appear at an ELR hearing.

To be sure, our Court in Pasqua, supra, 186 N.J. at 141 n.2, outlined the procedures for those held pursuant to Rule 1:10-3 for failing to pay child support or failing to appear at an ELR hearing. The Court stated that when the probation department moves to enforce a support order, the parent is informed of the proceeding and a warrant may be issued for non-appearance at the hearing. Ibid. Pasqua contains no language affording a noncomplying parent the right to bail pending a hearing on ability to comply with the support order. Pending an appearance before the court, the parent will be released upon payment of the total arrears. Alternatively, with the approval of a judge, the parent and the probation department may also agree to payment of an amount to secure release that is less than the total arrears. AOC Directive #15-08.

The second right plaintiff identifies, the due process right to appear before a judge immediately, is in fact one guaranteed by our Court in Pasqua. The Court stated that incarcerated obligors must "be brought before a court as soon as possible within seventy-two hours of their arrest." Pasqua, supra, 186 N.J. at 153.

Pasqua does not entitle an obligor to a hearing prior to incarceration after an arrest has been made for failing to appear at an ELR hearing.5 The decision expressly states that an obligor shall be brought before a judge as soon as possible, but in any event within seventy-two hours of arrest. The Directive implements Pasqua; it does not expand it.

Although plaintiff established the violation of a right to appear before a judge immediately, we nevertheless find that the named defendants are immune from suit.6 The record is devoid of any suggestion that either named defendant engaged in any conduct that deprived plaintiff of her right to appear timely before a judge. See Schneider, supra, 163 N.J. at 353-54. It was a failure to follow the dictates of the Directive that caused the delay, not the promulgation of the Directive.7

Qualified immunity is an immunity from suit rather than a defense to liability; the immunity is lost if the case is allowed to go to trial. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L. Ed. 2d 411, 425 (1985). "Unless the plaintiffs' allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before commencement of discovery." Ibid. Because both defendants are entitled to qualified immunity, the judge properly rejected plaintiff's motion to add them as defendants.

Both defendants are also shielded by legislative immunity in their capacity as judicial officers promulgating rules and procedures. Pasqua, supra, 186 N.J. at 152. The New Jersey Constitution invests the Supreme Court with authority to make rules for "the practice and procedure" of the courts. N.J. Const. art. VI, § 2, ¶ 3. Pasqua extended legislative immunity to both the Chief Justice and the Director of the AOC in setting forth rules, procedures and directives. Pasqua, supra, 186 N.J. at 152. The Court stated that the judiciary's function of guiding judges and lawyers "in the basic protocols and procedures that apply in our judicial system" is a "legislative act." Ibid. The Acting Director of the AOC and the Chief of Child Support Enforcement,8 are granted absolute legislative immunity for acting in their capacity as judicial officers in promulgating directives to protect against violations of constitutional rights.

Due to this immunity, plaintiff cannot sustain a claim against defendants pursuant to the NJCRA. Plaintiff's suit was properly dismissed for failure to state a claim upon which relief can be granted. R. 4:46-2(c).

Affirmed.