August 1, 2011
This is a status report on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers. The report may also include information about appearances of NJSBA representatives before legislative committees, and the involvement of the NJSBA as amicus in appellate court matters. The government affairs department of the New Jersey State Bar Association prepared the information. Following each bill number is the sponsor's name, the NJSBA position, if any, bill description and status. Full and previous versions of the Capitol Report with links to related text are available online at www.njsba.com.
This Special Edition of the Capitol Report provides the status of NJSBA-drafted legislation as well as a brief summary of the NJSBA’s position on each bill.
NJSBA Position: The NJSBA strongly supports the creation of a business court within the Law Division of the Superior Court of New Jersey. We believe the expeditious enactment of this legislation will improve the economic climate in New Jersey. One of the primary reasons why the NJSBA endorsed the creation of a Commercial and Technology Part was to create a cadre of judges with experience in handling not just complex litigation, but commercial litigation of all types. Such action is necessary to expedite review of these matters. The enactment of this bill will enable New Jersey to begin the process of establishing greater predictability in decisions affecting business issues while also streamlining the case management, reducing delay, and promoting the resolution of this type of litigation.
S-2944 (Sarlo) (NJSBA supports) Revised Uniform Limited Liability Act (RULLCA) urges New Jersey to adopt RULLCA.
Status: The bill is pending review by the Senate Commerce Committee.
NJSBA Position: New Jersey’s current LLC law treats derivative actions in a somewhat cursory manner. By contrast, RULLCA’s provisions are well organized and more comprehensive. RULLCA permits an LLC to appoint a special litigation committee of independent and disinterested persons. In short, adopting a modern statute such as RULLCA will help New Jersey resurrect its reputation as a good state to do business in, and without any cost to its taxpayers.
Status: Both bills are pending review by the Senate Health, Human Services and Senior Citizens Committee and Assembly Human Services Committee; however many of the provisions in this legislation were included in the Governor’s conditional veto of S-799/S-1399, which would also provide adoptee access to birth records, but does not include the privacy safeguards found in this bill. That bill is currently awaiting Senate action on the Governor’s recommendations.
NJSBA Position: This legislation was developed with the Family Law Section lending technical advice to the New Jersey Coalition for Privacy in Adoption of which the NJSBA was a member. The bill was created as an alternative to S-799/S-1399which would provide adoptee access to birth records, but the original bill made no provision for protecting the privacy of birth parents who gave up their children with an expectation of privacy. Governor Christie conditionally vetoed S-799/S-1399 and recommended incorporating the provisions of this legislation, including the use of a confidential intermediary to contact the birth parent(s). The NJSBA now fully supports S-799/S-1399 with the governor’s recommendations.
MILITARY LAW AND VETERANS’ AFFAIRS
S-1963/A-3096 (Beach/Conners) and S1965/A2821 (Connors/Gove) (NJSBA supports) Concerns custody and parenting time issues for military parents.
Status: S-1963 is pending review by the Senate Judiciary Committee and on Sept. 16, 2010, A-3096 was released from the Assembly Military and Veterans’ Affairs Committee with a substitute and is awaiting Assembly vote.
NJSBA Position: From a family law perspective, this legislation corrects a number of perceived ambiguities which we believe would create complex and expensive litigation in the family court realm, and thus establish a tremendous burden to military members and their families attempting to retain custody of their children. The current draft combines the best of the North Carolina, Washington State and Virginia statutes, while insuring that the statue reflects the substantive provisions of our own state law and practice.
MUNICIPAL COURT PRACTICE
A-401 (Diegnan) (NJSBA supports) Imposes limits on fees charged for discovery in municipal court matters.
Status: The bill is pending review by the Assembly Judiciary Committee.
NJSBA Position: This legislation was drafted based upon statewide findings that disparate problems existed with municipal discovery costs. In many cases, municipal prosecutors exact from defendants exorbitant fees for discovery. Fees range from $10.00 to $35.00. For the duplicating of videotapes, the fee can be up to one hundred dollars. While such fees are common, they are not universal. The NJSBA is concerned that this arbitrary discovery fee setting is hurting the administration of justice in New Jersey’s municipal courts because clients are discouraged from advancing claims because of the costs associated with preparing a defense. Further, justice should not be more expensive based upon the municipality in which one receives a summons.
REAL PROPERTY TRUST AND ESTATE LAW
Status: S-2979 is pending review by the Senate Judiciary Committee and A-3723 passed in the Assembly (76-0).
NJSBA Position: This legislation would modify New Jersey’s Spendthrift Trust Provisions by clarifying New Jersey law in a fashion comparable to a change made by the State of New York in 2005 (EPTL 7-3.1(d)).The proposed amendment would be declarative that existing law is inapplicable to trusts where the creator retains no beneficial interest in the trust, but that the trustee has discretionary authority to either reimburse the trust creator for income tax liability in the trust assets or pay taxes directly to the taxing authority on behalf of the trust creator. This is pro-New Jersey legislation since it will provide citizens with estate planning tax benefits while allowing New Jersey banks which often manage trusts more business in this regard.
A-1451 (Scutari/Wisniewski) (NJSBA supports) Revises New Jersey’s adverse possession law.
Status: The bill is pending review by the Assembly Judiciary Committee.
NJSBA Position: New Jersey’s adverse possession law allows an adverse possessor to acquire title to land after 30 years uninterrupted possession of the property or sixty years in the case of woodlands or uncultivated land. However, New Jersey has a 20-year statute of limitations applicable to actions concerning real property, such as an action to recover possession of property by a record owner. This conflict between the 20-year statute of limitations and the 30 years of possession required for title to vest through adverse possession has resulted in conflict and confusion. This bill seeks to eliminate that confusion.
A-3929 (Prieto/Mainor) (NJSBA supports) Requires certain civil actions against certain licensed persons to be brought within two years.
Status: The bill is pending review by the Assembly Regulated Professions Committee.
NJSBA Position: New Jersey’s statute of limitations is substantially greater than those in New York, Connecticut, Pennsylvania, and Delaware. The current statute of limitations in N.J.S.A. 2A:14-1 applies to most professional malpractice and professional negligence claims with the notable exception of claims for medical malpractice. A reduction in the statute of limitations period will provide businesses offering professional services the ability to predict with greater certainty potential liabilities and to plan for such liabilities.
Note: "Under review by the NJSBA" means that the bill is currently being examined by NJSBA sections, committees and/or Board of Trustees and a final position has not yet been reached on the measure.