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

Capitol Report

December 20, 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

S-1 (Lesniak) (Under review by the NJSBA) Reforms procedures concerning provision of affordable housing. On Dec. 13, Henry L. Kent-Smith of Fox Rothchild, LLP testified before the Assembly Housing and Local Government Committee on behalf of the NJSBA to express serious concerns about constitutional issues surrounding the bill. The NJSBA strongly opposed the bill as it was introduced and is currently reviewing the amended bill. As amended, this bill would modify the Fair Housing Act, P.L.1985, c.222, and other laws related to affordable housing development in New Jersey. If enacted, this legislation would abolish the Council on Affordable Housing and would permit municipalities to control planning for affordable housing within their boundaries while ensuring that municipalities "make realistically possible an appropriate variety and choice of housing" Mt. Laurel I, 67 N.J. 168, 174 (1973).

On Dec. 13, the bill substituted for A-3447, passed in the Assembly (43-32) and is awaiting vote in the Senate to concur with Assembly amendments.

On the Governor's Desk

S-191 (Scutari) (Under review by the NJSBA) Concerns priority of claims against certain insured tortfeasors as between an insurer paying personal injury protection (PIP) benefits and an injured party. The amendment made by the bill provides that any recovery by the insurer, health maintenance organization or governmental agency from the tortfeasor's insurer shall be subject to any claim by the injured party and shall be paid only after satisfaction of that claim, up to the limits of the insured tortfeasor's motor vehicle or other liability insurance policy. On Dec. 13, the bill substituted for A-793, passed in the Assembly (75-0) and was sent to the governor.

S-725 (Sacco) (Under review by the NJSBA) Concerns lost or stolen E-ZPass transponders. This bill would make the theft of an electronic vehicle identification system transponder a disorderly persons offense, with a fine of not less than $500 nor more than $10,000 upon conviction. This bill further provides that a customer who has an account with an operator of a New Jersey electronic toll collection system (E-ZPass) and who reports the loss or theft of a transponder in a timely manner shall not be liable for unauthorized charges of $50 or more that were incurred before the loss or theft was reported or for any charges after the loss or theft is reported. On Dec. 13, the bill substituted for A-3478, passed in the Assembly (74-1) and was sent to the governor.

A-407 (Diegnan) (Under review by the NJSBA) Prohibits the use of wireless telephones or electronic communication devices by operators of public transit vehicles in certain situations. On Dec. 13, the bill passed in the Assembly (74-0-1) and was sent to the governor.

Pending Legislation

CONSUMER PROTECTION

A-2538 (Conaway) (Under review by the NJSBA) Establishes the Anti-Phishing Act. The term "phishing" refers to an activity characterized by attempts to fraudulently acquire an individual's personal information by masquerading as a trustworthy business. This bill prohibits such activity and is modeled after similar legislation introduced in New York and California, among other states. On Dec. 13, the bill passed in the Assembly (74-0), was received in Senate and referred to the Senate Commerce Committee.

ELDER AND DISABILITY LAW

S-125 (Connors) (Under review by the NJSBA) Establishes the New Jersey Alzheimer's Disease Study Commission. On Dec. 13, the bill passed in the Senate (38-0), was received in Assembly and referred to the Assembly Health and Senior Services Committee.

FAMILY LAW

A-2258 (Spencer) (Under review by the NJSBA) Creates self-defense justification for victims of domestic violence. The bill would make evidence surrounding a domestic violence restraining order admissible and relevant to a determination whether the use of force was justifiable where the use of force at issue was directed by an actor protected under a domestic violence restraining order upon or toward the person who was subject to that restraining order. On Dec. 13, the bill passed in the Assembly (75-0), was received in Senate and referred to the Senate Judiciary Committee.

INDIVIDUAL RIGHTS

S-1791 (Turner) (Under review by the NJSBA) Prohibits an employer from requiring a credit check on a current or prospective employee, unless the employer is required to do so by law, or reasonably believes an employee has engaged in a specific activity that is financial in nature and constitutes a violation of law. The Senate amendments reduce the maximum penalties from $5,000 to $2,000 for a first violation of the provisions of the bill, and reduce the maximum penalties from $10,000 to $5,000 for subsequent violations. On Dec. 13, the bill was amended on the Senate floor and is awaiting Senate vote.

INSURANCE LAW

A-1997 (Conaway) (Under review by the NJSBA) Permits a person covered by certain managed care plans to receive covered services from a network provider without obtaining written referral from a primary care provider. This bill, which supplements the Health Care Quality Act, is intended to reduce the administrative burden and delay, both for primary care providers who are health maintenance organization (HMO) or other managed care network providers and their patients, which is associated with the process of providing written patient referrals to specialist network providers, while still retaining the gatekeeper role for primary care physicians that is common to HMOs and certain other managed care plans. On Dec. 13, the bill passed in the Assembly (63-10-1), was received in Senate and referred to the Senate Commerce Committee.

MILITARY LAW AND VETERANS' AFFAIRS

A-161 (McHose) (Under review by the NJSBA) Establishes a task force to study the treatment of veterans diagnosed with post-traumatic stress disorder in judicial proceedings. On Dec. 13, the bill was amended on the Assembly floor and is awaiting Assembly vote.

Amicus Matters

Aronberg v. Tolbert -This case questions whether N.J.S.A. 39:6A-4.5(a), which bars a lawsuit for automobile accident damages by an individual who was operating an uninsured vehicle, also precludes a wrongful death claim by the estate of that individual. On Dec. 7, the NJSBA filed a motion for leave to participate as amicus curiae. Anthony Murgatroyd drafted the NJSBA's substantive brief arguing that a wrongful death claim brought for the benefit of a decedent's heirs is separate and distinct from a survivorship claim brought on behalf of the decedent.

Nominations

The following nominations received advice and consent by the Senate on Dec. 13:

JUDGE OF THE SUPERIOR COURT
George Leone, of Haddonfield, NJSBA member

COLLEGE OF NEW JERSEY-BOARD OF TRUSTEES
Christopher R. Gibson, of West Deptford, NJSBA member

DIRECTOR OF THE DIVISION OF RISK MANAGEMENT
William M. Mayo, of Cherry Hill

CAPE MAY COUNTY PROSECUTOR
Robert Taylor, of Stone Harbor, NJSBA member

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.