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

Capitol Report

April 19, 2010

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. It is compiled by the government affairs department of the New Jersey State Bar Association. 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.

NJSBA ACTION IN TRENTON

NJSBA President Allen Etish is scheduled to testify before the Assembly Budget Committee on the FY2010 state budget. We are seeking adequate funding for the Department of Law and Public Safety (DLPS), the Office of the Public Defender and the Legal Services program in New Jersey (LSNJ). The DLPS is down over 100 attorneys, which raises serious concerns. Salaries for deputy attorney generals have been frozen, and as a result it is becoming difficult to retain and replace these professionals. While the NJSBA is sensitive to the state budget situation, these professionals are essential to the day-to-day operations of New Jersey state government.

An increase in revenue is critically needed to maintain staff and civil legal services for thousands of low-income New Jersey residents. The economic downturn has reduced one of LSNJ's primary revenue sources-the Interest on Lawyers Trust Account program (IOLTA). Declining interest rates and a deteriorating real estate market has reduced IOLTA funding to LSNJ, so it has become more dependent on state appropriations.

Mr. Etish will also be requesting the state maintain funding for the Office of the Public Defender, which unlike Legal Services of New Jersey handles criminal and quasi-criminal matters. The public defender plays a crucial role in the criminal justice system because 90 percent of all indictable criminal cases are handled by that agency. The Office of the Public Defender's criminal representation also includes requirements under Megan's Law for tier classification hearings, and civil commitment hearings after sex offenders have served their prison sentences. The office is also responsible for perhaps the most important, but also most complex and time-consuming matters-representing indigent parents and, through the Office of Law Guardian, neglected children in termination of parental rights cases. It is critical for that office to receive adequate funding to fulfill its vital role in all of those settings.

ABA Urges Support for Exemption from Consumer Financial Protection Act

The American Bar Association (ABA) is enlisting help from state bar associations in an attempt to convince the U.S. Senate to amend the Consumer Financial Protection Act to exempt lawyers from the regulatory powers that would be granted by the new Bureau of Consumer Financial Protection within the Federal Reserve. The ABA contends the bill would permit the new agency to regulate anyone who provides consumer financial services, including attorneys. It has the potential to interfere with the confidential attorney-client relationship, undermine state court regulation of the bar and discourage lawyers from representing certain consumer clients. A House of Representatives version of the bill (H.R. 3126) contains a broad exemption for lawyers engaged in the practice of law. The NJSBA Board of Trustees is expected to consider the ABA request at an upcoming meeting.

REGULATORY MATTERS

Below please find proposed regulations with a deadline for comment of June 4, unless otherwise noted:

Criminal Law

N.J.A.C. 10A:31-1.3, 8.3 through 8.7 and 22.2; 10A:34-1.3, 3.2 through 3.7, 3.10, 4.1 and 4.4; 10A:34-3.8 Provides notice that the Department of Corrections will hold a public hearing on April 20 at 10 a.m. to seek comments specific to proposed rule action published by the Department of Corrections in the Jan. 4, 2010, New Jersey Register at 42 N.J.R. 34(a), regarding searches of certain persons under the jurisdiction of adult county correctional facilities and municipal detention facilities. Written comments must be submitted or postmarked by April 30 and sent to Karen J. Wells, Supervisor, Administrative Rules Unit, Office of the Commissioner, New Jersey Department of Corrections, P.O. Box 863 in Trenton.

Government and Public Sector

N.J.A.C. 4A:2-2.5, 2.6, 2.8, 2.9, 2.10 and 2.12; 4A:2-2.13 Proposes amendments to P.L. 2009, c. 16, N.J.S.A. 40A:14-200 et seq., which established a 180-day time limit for the appeal process for terminations of certain law enforcement officers and firefighters. The Civil Service Commission amendments and a new rule, which established appeal procedures under this new law. These amendments and new rule are set to expire on July 1, 2010, and the commission now proposes to readopt the rules without change. Pursuant to N.J.S.A. 52:14B-5.1c, the expiration date of the special adopted amendments and new rule is extended 180 days, to Dec. 28, 2010. Although the law concerns law enforcement officers and firefighters in both civil service and non-civil service jurisdictions, the Civil Service Commission's proposed readoption of the amendments and new rule would apply only to certain law enforcement officers and firefighters employed in civil service jurisdictions.

Municipal Court Practice

N.J.A.C. 13:19-1 through 9 and 11; 13:19-10.1, 12.1, 12.2, 12.11, 12.12, 13.1 and 13.2 The Motor Vehicle Commission proposes to readopt, with amendments, the provisions of N.J.A.C. 13:19-1 through 9, and N.J.A.C. 13:19-11 concerning driver control service in accordance with the "sunset" and other provisions of Executive Order No. 66 (1978) and the Administrative Procedure Act at N.J.S.A. 52:14B-5.1. These rules expire on Jan. 5, 2010.

On June 29, 1994, the governor directed that the five-year sunset provision of Executive Order No. 66 (1978) be waived for subchapters 10, Point System and Driving During Suspension; 12, Motor Vehicle Insurance Surcharge; and 13, Motor Vehicle Insurance Surcharge: Supplemental Surcharges, of N.J.A.C. 13:19 until such time as the bonds, which funded a portion of the Market Transition Facility deficit have been retired. Surcharges collected by the Commission are transferred to the Market Transition Facility Revenue Fund for the purpose of discharging the bonds, notes and obligations of the Market Transition Facility.

The following rules were recently adopted:

Criminal Law

N.J.A.C. 10A:1-2.2 and 10A:5-5.1 through 5.5, 5.13 and 5.22; 10A:5-5.20 Provides changes to Department of Corrections rules proposed in the Dec. 21, 2009, New Jersey Register at 41 N.J.R. 4663(a) regarding inmates in protective custody.

Labor and Employment Law

N.J.A.C. 17:27 Provides changes to Division of Public Contracts Equal employment Opportunity Compliance rules regarding equal employment opportunity and affirmative action rules.

Newly adopted rules can be found online at http://www.lexisnexis.com/njoal/.

PUBLIC NOTICES

Election Law

The New Jersey Law Revision Commission met on April 15 to discuss the following agenda:

  1. Title 39 Consideration of an updated memorandum including language on which staff is seeking commission approval. The draft language contained in the memorandum was revised by staff in response to commission comments and guidance provided at the last commission meeting.
  2. Durable Power of Attorney-Consideration of a revised draft final report incorporating additional comments received.
  3. Title 2A Causes of Action-Consideration of a tentative report incorporating the addition of supplemental information resulting from additional research by staff and reflecting the changes requested by the commission at the March meeting.
  4. Title 9 Parentage-Consideration of a draft final report embodying changes made to meet recommendation of the Department of Human Services.

Material for the above agenda can be obtained online from the New Jersey Law Revision Commission's website at http://www.lawrev.state.nj.us/agenda.html.

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.