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

Capitol Report

May 10, 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

The New Jersey State Legislature has resumed sessions after a six-week budget recess. The NJSBA has taken action on the following bill, which was posted for review by the Assembly Consumer Affairs Committee on May 6:

A-1064 (Gusciora) (NJSBA opposes) This bill provides that attorneys' fees, filing fees and the costs of the suit shall not be awarded for a technical violation of the Consumer Fraud Act. Under the Consumer Fraud Act, any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of another person's violation of the act shall be awarded reasonable attorneys' fees, filing fees and reasonable costs of suit. Further, the state's courts have held that if a person can establish a violation of the act's accompanying regulations, that person would be entitled to reasonable attorneys' fees, filing fees and reasonable costs of suit, even if there were no damages resulting from the violation.

The NJSBA agrees that there should be no award of counsel fees when there is a technical violation of the Consumer Fraud Act, when the term "technical violation" refers to a situation where there is no ascertainable loss. However, we believe that the term "technical violation" is difficult, if not impossible, to define because it may arise in many different situations. For example, if a contractor commits no actual fraud but fails to secure a signed/accepted written estimate, as required by Consumer Fraud Act regulations, this situation may appear to be a technical violation. This resulting ambiguity can skew the bill's actual intent, and might even discourage some parties from bringing actions under the Consumer Fraud Act.

The NJSBA concludes that there is no need for this legislation. There are already adequate safeguards to prevent, or limit, attorneys' fees and costs in 'nuisance' cases brought under the act. Further, judges have the discretion to adjust attorneys' fees in appropriate cases.

GOVERNOR APPOINTMENTS

On May 3, Governor Chris Christie nominated NJSBA member Anne Murray Patterson, of Riker, Danzig, Scherer, Hyland & Perretti, LLP of Morristown, as an associate justice of the New Jersey Supreme Court. In selecting Patterson, Governor Christie decided not to re-appoint Associate Justice John E. Wallace Jr., also an NJSBA member, whose seven-year initial appointment expires on May 20.

ON THE GOVERNOR'S DESK

S-82 (Rice) (NJSBA supports) Modifies the development application process under the Municipal Land Use Law. The NJSBA supports this bill because it would provide a much greater degree of certainty to the municipal land use process, by allowing applicants to rely on ordinances that were in effect at the time of the application, and with which the application complies. The bill would eliminate the fundamentally unfair and inequitable result of midstream or last-minute ordinance changes that undermine applications after the expenditure of significant time and funds in reliance on existing ordinances. On March 15, S-82 substituted for A-437, passed in the Assembly (51-14-11) and was sent to the governor.

S-895 (Gill) (NJSBA supports) Eliminates the 10-day advance notification of proposed effective date of certain shareholder action. The NJSBA supports this legislation because we believe the 10-day notice period required for certain shareholder actions under N.J.S.A. 14A:5-6 unnecessarily delays the ability to complete transactions not involving mergers and acquisitions, and should be eliminated. The NJSBA further believes that making the New Jersey statute similar to the comparable statute in Delaware is in the best interests of New Jersey corporations. On March 15, S-895 substituted for A-2420, passed in the Assembly (77-0) and was sent to the governor.

REGULATORY MATTERS

The following rules were recently adopted:

Environmental Protection

N.J.A.C. 7:1I; 7:1J; 7:8-5.4; 7:14A; 7:26B; 7:26C; 7:26E; and 7:38 Provides notice that the Department of Environmental Protection (DEP) discovered errors in the following rules: Processing of Damage Claims Pursuant to the Sanitary Landfill Facility Closure and Contingency Fund Act rules, Processing of Damage Claims Pursuant to the Spill Compensation and Control Act rules, stormwater rules, New Jersey Pollutant Discharge Elimination System, Industrial Site Recovery Act rules, Administrative Requirements for the Remediation of Contaminated Site, Technical Requirements for Site Remediation, and Highlands Water Protection and Planning Act rules.

The DEP is making administrative corrections to the technical rules to delete references to the priority pollutant list of contaminants from the technical rules; these amendments are obvious, easily recognizable, and apparent to the promulgating agency and the regulated public. A summary of the corrections can be found at http://www.nj.gov/dep/rules/adminchg/100419c.pdf.

N.J.A.C.7:27-14.3 Extends the deadline for diesel idling regulations and advises that after consulting with the New Jersey Department of Transportation and the New Jersey State Police, who determined that public safety may be adversely affected if the requirement in N.J.A.C. 7:27-14.3(b)7 were to take effect on May 1, 2010, the commissioner has decided to delay the operative date of N.J.A.C. 7:27-14.3(b)7 until May 1, 2011. Pursuant to N.J.A.C. 7:27-14.3(b)7i, no further extensions will be granted. Accordingly, on or before April 30, 2011, a diesel-powered motor vehicle that is manufactured with a sleeper berth may not idle for more than three consecutive minutes while the vehicle's operator is sleeping or resting, unless the vehicle is equipped with a functional auxiliary power system designed in whole or in part to maintain cabin or sleeper berth comfort or to mitigate cold weather start-up difficulties. This applies to all model-year engines. After April 30, 2011, only a diesel powered motor vehicle that is manufactured with a sleeper berth and is equipped with either a model year 2007 or newer engine or a properly functioning diesel particulate filter may idle for more than three consecutive minutes while the vehicle's operator is sleeping or resting. Full text of this rule can be found at
http://www.nj.gov/dep/rules/adminchg/100419b.pdf.

N.J.A.C. 7:27B-4.4 Provides notice that the Department of Environmental Protection discovered errors in N.J.A.C. 7:27B-4.4. Effective Nov. 16, 2009 (operative Dec. 18, 2009), N.J.A.C. 7:27-14.5(e) through (g) were recodified as N.J.A.C. 7:27-14.5(d) through (f) (see 41 N.J.R. 1606(a) and 4195(b)). N.J.A.C. 7:27B-4.4(c) contains a cross-reference to N.J.A.C. 7:27-14.5(f), and N.J.A.C. 7:27B-4.4(d) contains a cross-reference to N.J.A.C. 7:27-14.5(g), both of which predate the recodifying amendments and need to be corrected to reflect the current codification of the referenced subsections as N.J.A.C. 7:27-14.5(e) and (f). Full text of the corrected rule can be found at
http://www.nj.gov/dep/rules/adminchg/100419a.pdf.

The New Jersey State Bar Association is dedicated to the continuing education of lawyers and the public and to reforming and improving the legal system. It encourages involvement in voluntary pro bono activities and supports the fair administration of justice. Incorporated in 1899, it is the state's largest lawyers group. Visit the Association's website at www.njsba.com