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

Capitol Report

September 5, 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 association compiles the report. 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.

New Laws

P.L.2011, c. 121 (Vitale) Restores the income eligibility level for the AIDS Drug Distribution Program to 500 percent of the federal poverty level. On August 22, S-2214 was signed by the governor.

P.L.2001, c. 122 (Lesniak) Extends the moratorium on the imposition of statewide nonresidential development fees and requires return of fees paid subsequent to June 30, 2010. These fees were enacted as part of a revision of the Fair Housing Act, pursuant to P.L.2008, c.46. The bill requires the return of any monies paid during the period from July 1, 2010, to the present, as a result of the previous expiration of the moratorium. Municipalities that are eligible to collect nonresidential development fees would not be required to refund monies that have been spent on affordable housing projects. The bill also clarifies that the Fair Housing Act does not require the imposition of an affordable housing obligation as a result of nonresidential construction, but rather provides that, should the court rule in that manner, or should regulations be adopted to that effect, any obligation so imposed is suspended whenever the imposition of statewide nonresidential fees is suspended. On August 24, S-2974 was signed by the governor.

On the Governor’s Desk

A-2366 (Vainieri Huttle) Concerns contracting and licensing procedures for certain organizations under contract with Department of Human Services and the Department of Children and Families. The requirements would include, but not be limited to, uniform reporting procedures and uniform audit schedules. On August 25, the bill passed in the Senate (39-0) and was sent to the governor.

A-3195 (Greenstein) Requires the Department of State to create a uniform application form for use by small businesses to apply for certain state financial assistance programs. On August 25, the bill passed in the Senate (38-0) and was sent to the governor.

Pending Legislation

ANIMAL LAW

S-2923 (Under review by the NJSBA) Establishes a pilot program concerning sterilization of cats and dogs released for adoption from various facilities and updates the law concerning impoundment. On August 25, the governor’s conditional veto passed in the Senate (36-2). The governor conditionally vetoed the bill, citing the need to maintain a seven-day hold period before dogs and cats received by animal shelters can be offered for adoption, transferred, or euthanized in New Jersey. Under existing law, any animal captured by an animal control officer must be held for seven days before it can be offered for adoption, transferred to a more suitable shelter, or euthanized. This bill would change this standard, and permit these animals to be transferred or euthanized before seven days if the shelter determines that the age, health, or behavior of the animal warrants such action. Unfortunately, this exception would create the potential that older or mildly injured animals could be euthanized immediately, and before a diligent search by an owner could locate a lost pet.

ELDER AND DISABILITY LAW

S-2197 (Ruiz) (NJSBA supports) Establishes the Physician Orders for Life-Sustaining Treatment Act; provides for use of physician orders for life-sustaining treatment forms and requires physicians and advanced practice nurses to pursue continuing education in end-of-life care. On August 25, the governor’s conditional veto was received in the Senate. The governor cited concerns with the provisions of the bill that would effectively allow a patient's wishes to be overridden by the patient's physician or healthcare representative without the patient's prior consent, and that would mandate an alternative dispute resolution as a prerequisite to a patient's or his or her representative's right to go to court to protect a patient's wishes. The governor recommended changes to further protect a patient's healthcare wishes.

HEALTH AND HOSPITAL LAW

S-2239 (Weinberg) Establishes the New Jersey Health Care Reform Implementation Council. On August 25, the bill passed in the Senate (22-17).

S-2707 (Weinberg) Permits an attending advanced practice nurse to determine the cause of death and execute a death certification when a physician is not available. On August 25, the bill passed in the Senate (39-0).

RENEWABLE ENERGY, CLEANTECH AND CLIMATE CHANGE
S-2811 (Smith) Revises the definition of Class I renewable energy to include energy produced by certain geothermal heat pumps. On August 25, the bill was released from the Senate Environment and Energy Committee with a substitute and is awaiting Senate vote. This substitute bill amends the definition of “Class I renewable energy” contained in the Electric Discount and Energy Competition Act, P.L.1999, c.23 (C.48:3-49 et al.), to include energy produced within the state by geothermal heat pumps, provided the percentage of renewable energy generated by the geothermal heat pumps meets standards established by the Department of Environmental Protection, in consultation with the Board of Public Utilities. The substitute bill also adds the requirement that the geothermal energy be produced within the state and reflects the latest text of Section 3 of P.L.1999, c.23 (C.48:3-51), as amended by P.L.2011, c.9.

SCHOOL LAW

S-1858 (Lesniak) Permits high-performing nonpublic schools located in failing school districts to convert to charter schools. On August 25, the bill was released from the Senate Budget and Appropriations Committee with amendments and is awaiting Senate vote. The amended bill limits the conversion of nonpublic schools to charter school status to those nonpublic schools that are high-performing and located in failing school districts; defines a high-performing nonpublic school as a nonpublic school that ranked in the 66th percentile or higher on a norm-referenced achievement test in the school year prior to the school year in which a conversion application is submitted; defines a norm-referenced achievement test as the California Achievement Test, the Metropolitan Achievement Test, Stanford Achievement Test, or the Comprehensive Test of Basic Skills (CTBS) or one of the tests within the CTBS; and defines a failing school district as a district in need of improvement under the federal No Child Left Behind Act of 2001, Pub.L.107-110.

Nominations

The following nominations were referred to the Senate Judiciary Committee on August 25:

ELLIS ISLAND ADVISORY COMMISSION

Norman A. Feinstein, of Caldwell

NEW JERSEY SCHOOLS DEVELOPMENT AUTHORITY

Richard L. Elbert, of Westfield

NORTH JERSEY DISTRICT WATER SUPPLY COMMISSION

Donald C. Kuser, of Wayne

POLICE AND FIREMENS' RETIREMENT SYSTEM OF NEW JERSEY BOARD OF TRUSTEES

Steven K. Brisgel, of Short Hills

STATE BOARD OF PHYSICAL THERAPY EXAMINERS

Beth Sarfaty, of West Long Branch

STATE MOSQUITO CONTROL COMMISSION

Kenneth W. Bruder, of Toms River

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.