New Jersey State Bar Association - The voluntary Bar Association of New Jersey, serving members since 1899.

Capitol Report

August 26, 2013

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To obtain a complete copy of the Capitol Report and/or retrieve a former Capitol Report, please visit our website at www.njsba.com

CHANGE TO ATTORNEY IDENTIFICATION NUMBER 

Please note, there has been an update to the requirement of using attorney identification numbers. The new rule will become effective on Nov. 1, 2013.  

Again, all attorneys will be required to use their attorney identification number on the first page of any paper filed with the court. This requirement is part of a series of court rule amendments adopted by the Supreme Court; specifically, Rule 1:41

Attorney identification numbers can be found on the Court’s website:

http://www.njcourtsonline.com

·        Under the heading Legal, select Attorney Index

·        Type in your name and click Search

·        ID will be shown in blue on the left-hand side

2012–2013 AMICUS ACTIVITY

Below is a list of pending cases before the Court, where an issue was believed to have affected the legal profession or the system of justice, in which the New Jersey State Bar Association participated as amicus curiae.

 

D&D Associates, Inc. v. North Plainfield Board of Education (PDF) 

Third Circuit Case No.: 12-2236

At issue in the case is whether an attorney can be sued for defamation and tortious interference for statements in pre-litigation letters sent to a contractor's attorneys and performance bond surety terminating the parties’ contractual relationship. On Aug. 1, 2013, the NJSBA filed a motion and proposed amicus curiae brief, drafted by Thomas H. Prol, arguing that such communication should be protected by the litigation privilege.  Oral argument and a decision in the case are pending.

Acupuncture Society of NJ v. NJ Department of Banking and Insurance (PDF) 

Appellate Division Docket No. A-1792-12

NJ Healthcare Coalition v. NJ Department of Banking and Insurance (PDF) 

Appellate Division Docket No. A-1038-12

NJ Coalition for Quality Health Care v. NJ Department of Banking and Insurance (PDF) 

Appellate Division Docket No. A-1445-12

NJ Association of Justice in NJ v. NJ Department of Banking and Insurance (PDF) 

Appellate Division Docket No. A-1636-12

The issue in this consolidated case is whether the Department of Banking and Insurance exceeded its authority in adopting new regulations governing personal injury protection benefits provided in the aftermath of auto accidents. On April 25, 2013, the NJSBA filed a proposed amicus curiae brief drafted by Anthony Murgatroyd, disputing the validity of the regulations adopted by the Department of Banking and Insurance.  The NJSBA focused on four specific areas, as follows: 1) deprivation of due process rights by requiring that all disputes under $1,000 must be decided by a personal injury protection dispute resolution specialist on the papers only; 2) assignment of benefits subjecting doctors not only to the rights of the insured under an insurance policy, but also the obligations, thus, potentially being subject to depositions and other discovery requirements of the insured to the insurer; 3) instituting evidence-based medicine standards, which have been peer-reviewed, instead of utilizing evidence standards based upon the New Jersey Rules of Evidence; and 4) usurping the power of the Supreme Court in its exclusive jurisdiction over the practice of law by establishing standards for counsel fees that conflict with the standards expressed in the Rules of Professional Conduct and by the courts. Oral argument and a decision in the case are pending. 

Martin O'Boyle v. Borough of Longport (PDF) 

Supreme Court Docket No.: 070999

At issue in this case is whether or not certain documents requested from the borough are protected from access under the Open Public Records Act by the attorney work-product privilege and common law interest doctrine. On March 15, 2013, the NJSBA filed a proposed amicus curiae brief drafted by Thomas H. Prol, supporting the Appellate Division’s decision reinforcing the broad protections and guidelines that allow attorneys to freely assist clients and those with concordant legal defenses to present the best arguments before the New Jersey courts. Oral argument and a decision in this case are pending. 

State v. William O'Driscoll (PDF) 

Supreme Court Docket No.: 070438

The issue in this case is whether the defendant was “informed” of the consequences of refusing to submit to a breath test as required to sustain a conviction for refusal under N.J.S.A. 39:4-50.4a(a) and whether the officer read to the defendant an outdated version of the New Jersey Motor Vehicle Commission standard statement that did not reflect the current increased penalties for refusal. On Dec. 21, 2012, the NJSBA filed an amicus curiae brief drafted by Jeffrey Evan Gold and Kimberly Yonta Aronow, affirming the lower court decision arguing that the proper form was not read and correct penalties were not conveyed. Oral argument and a decision in this case are pending. 

To obtain a complete copy of the briefs listed above, please visit the NJSBA website at:

 http://www.njsba.com/resources/legal-affairs/amicus/amicus-cases.html 

NJSBA RECENT ACTION IN TRENTON

Consumer Protection Law

S-2551 (Van Drew) (NJSBA supports) Permits real estate licensees to prepare broker price opinions and comparative market analyses. On Aug. 19, 2013, the governor’s veto was received in the Senate.

The New Jersey State Bar Association Board of Trustees, Legislative Committee and Consumer Protection Law Committee voted to support this legislation to restore the prior practice of permitting real estate brokers and salespersons to provide valuation services for purposes other than marketing of real estate, believing that in New Jersey homeowners have properly relied upon such persons in the past. These professionals have offered competent services at reduced costs, relative to those of an appraiser, for such purposes as tax appeals, family law disputes and bankruptcy valuations for many years, and the practice has not raised significant consumer protection concerns. The state bar believes this bill will reduce the cost of litigation for consumers and other affected parties.

Criminal Law

A-732 (Eustace) (NJSBA supports w/amendments) Makes it a crime of the third degree to practice or represent oneself to others concerning certain licensed or certified healthcare-related professions. On Aug. 19, 2013, the bill passed (36-0) in the Senate and was sent to the governor.

The New Jersey State Bar Association Board of Trustees, Legislative Committee, Family Law Section, Health Law Section and Women in the Profession Section voted to support this legislation as amended, believing the bill would protect vulnerable patients seeking treatment for personal and emotional problems from unlicensed professionals who have the potential to inflict significant harm on such patients. The NJSBA supported amendments to the bill that deleted penalties for practicing “marriage and family therapy” that may have unintentionally applied to attorneys and others. 

Elder and Disability Law

S-2052 (Singer) (NJSBA supports) Establishes a bill of rights for continuing cares retirement community residents. On Aug. 19, 2013, the bill passed (37-0) in the Senate and was sent to the governor.

The New Jersey State Bar Association Board of Trustees, Legislative Committee and Elder and Disability Law Section voted to support this legislation, believing it is important for seniors who live in continuing care retirement communities (CCRC) in New Jersey to know they have rights that can be monitored and enforced through the long-term care ombudsman regardless of what “setting” the resident is residing in. Currently, if an individual is in the independent living section of a CCRC, the ombudsperson would not be able to get involved in their case, even though there may be inappropriate pressure from the community to move to a higher level of care within the CCRC, such as assisted living or nursing home care. CCRC contracts are complicated, and the programs themselves are expensive and fraught with financial uncertainty. This legislation gives a voice to seniors facing decisions relating to levels of care.

Privacy Law

A-2878 (Burzichelli) (NJSBA supports) Prohibits an employer from requiring an employee to disclose his or her user name, password, or other means for accessing an account or service through an electronic communications device. On Aug. 19, 2013, the bill passed (36-0) in the Senate and was sent to the governor.

The New Jersey State Bar Association Board of Trustees and Labor and Employment Law Section voted to support this legislation, believing it is necessary to protect the privacy rights of all employees in an emerging technologically connected era. Employees’ personal social network accounts contain personal information—information an employer is prohibited from asking about (i.e., marital status, religion, sexual orientation, etc.). The NJSBA believes gaining access to this information through social media accounts could lead to discriminatory decisions during the hiring process. Additionally, this bill protects employees’ rights in the current job market. It ensures that employees are not put in the unfair situation of being forced to give up their privacy rights in return for a certain job.

Workers’ Compensation

S-1778 (Greenstein) (NJSBA opposes) Creates the Thomas P. Canzanella Twenty First Century First Responders Protection Act; concerns workers' compensation for public safety workers. On Aug. 19, 2013, the bill was vetoed and defeated in the Senate (22-14). 

The New Jersey State Bar Association Board of Trustees, Legislative Committee and Workers’ Compensation Section voted to oppose this legislation, believing the cost factors associated with the bill are unknown. While the NJSBA supports first responders and is sensitive for the potential risks they face, the state bar feels this bill misses the mark. Funding was made available for other pieces of legislation, such as special legislation for 9/11 victims, but with this bill, no such funding information has been forthcoming.

The legal burdens of proof and rebuttable presumptions are changed for the group of individuals defined in this bill. The workers' compensation statute and system already has defined burdens of proof that must be met with respect to all petitioners, which are fair and equal, so that a highly skilled workers' compensation bench may weigh all factors and reach a fair conclusion.

 

PENDING LEGISLATION

Higher Education

S-1191 (Lesniak)/A-2974 (Mosquera) Allows establishment of a county-wide purchasing system for certain school district services; offers employment protections for certain food or custodial services employees; and regulates subcontracting by districts and public higher education institutions. On Aug. 19, 2013, the governor’s veto was received in the Senate.

Insurance Law

S-1253 (Vitale)/A-1665 (Johnson) Requires the State Health Benefits Program (SHBP) and the School Employees Health Benefits Program (SHEBP) to cover treatment for alcoholism, other substance-use disorders, and non-biologically based mental illnesses under the same terms and conditions as other diseases or illnesses. On Aug. 19, 2013, the governor’s veto was received in the Senate.

Real Property, Trust and Estate Law

A-2596 (Wisniewski) Removes the requirement that one- and two-family residences be equipped with a portable fire extinguisher. On Aug. 19, 2013, the bill passed (31-3) in the Senate and sent to the governor, who conditionally vetoed the bill and recommended the Department of Community Affairs undertake a study of fire extinguishment requirements in homes. 

Taxation Law

S-2912 (Oroho)/A-946 (Riley) Permits a farm income-averaging credit under the New Jersey gross income tax. On July 29, 2013, the bill was introduced and referred to the Senate Budget and Appropriations Committee. 

CHAPTER BILLS: RECENT LEGISLATION SIGNED INTO LAW 

P.L.2013, c.136 Revises statutes and enhances penalties for offenses involving child pornography; makes the crime of causing a child to engage in a prohibited sexual act subject to the No Early Release Act. On June 24, 2013, the bill passed (40-0) in the Senate and was sent to the governor. On Aug. 14, 2013, the bill was signed into law.  (S-2493 O’Toole/A-3735 Mainor)

P.L.2013, c.137 Creates the crime of threatening the life of certain animals; designated as Dano and Valder’s Law. On June 27, the bill passed (74-0-0) in the Assembly and was sent to the governor. On Aug. 14, 2013, the bill was signed into law. (S-79 Sarlo/A-495 Albano)