December 23, 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 learn more visit njsba.com.
RECENT NJSBA ACTION IN TRENTON
A-1521 (Burzichelli)/S-2555 (Van Drew) (NJSBA supports) Modifies the process for contested case hearings by the Office of Administrative Law (OAL) with regard to telephone and video conferences, delegation of final decision authority, oral decisions, checklist decisions, electronic filings, and settlements. On Dec. 9, members of the Administrative Law Section, including Chair Paul Josephson, testified in opposition to the amendments (which deleted providing administrative law judges with final decision authority), but in support of the bill overall. Testimony was presented before the Senate State Government, Wagering, Tourism and Historic Preservation Committee. The bill was held. On Dec. 12, the bill was released from the Senate State Government, Wagering, Tourism and Historic Preservation Committee with amendments and is awaiting Senate vote.
The New Jersey State Bar Association’s Board of Trustees, Legislative Committee, Elder and Disability Law Section, and Administrative Law Section strongly support empowering administrative law judges with authority to render a final decision, pursuant to the Administrative Procedures Act. The association cannot support a system of justice where a department head, in a contested matter, has the ability to overrule a judge once a decision has been rendered at the conclusion of a hearing. This is currently the situation for attorneys who practice before the OAL, and the NJSBA believes it unfairly limits an attorney’s ability to fully and properly represent and counsel clients.
S-2556 (Sarlo) NJSBA DRAFTED BILL (NJSBA supports) Makes certain technical corrections to the Revised Uniform Limited Liability Company Act (RULLCA). On Dec. 5, the bill was released from the Senate Commerce Committee with amendments and is awaiting Senate vote.
The New Jersey State Bar Association’s Executive Committee; Legislative Committee and Real Property, Trust & Estate Law Section support this legislation, believing the changes proposed are essential to ensure that the provisions in the existing RULLCA are well understood and implementation is seamless. The association supports recent amendments, which address concerns that the 2012 law permits creditors to liquidate limited liability company (LLC) interests and reduce certain tax benefits afforded under the previous law.
These amendments maintain the previous statutory assurance that an LLC interest, gifted to a child, will not be foreclosed upon or liquidated and would reinstate the previous tax benefits by addressing problems with the current law’s application to estate and gift taxes. The tax law requires the “fair market value” of a transferred interest be utilized for such purposes. Under the previous law, the "non-transferability" of the asset increased the marketability discount of that asset for valuation purposes. Presently, the asset is less transferable because it can be liquidated by a creditor, which diminishes marketability for valuation purposes. Furthermore, the present law prohibits the modification of an LLC’s operating agreement to guard against creditor liquidation. Thus, the NJSBA believes the high creditor protection once afforded by New Jersey law was inadvertently lost in RULLCA’s enactment in 2012.
A-3254 (Coughlin)/S-2309 (Vitale) (NJSBA supports) Permits a municipal court to order certain offenders to perform community service in lieu of payment of penalty. On Dec. 12, the bill was released from the Senate Judiciary Committee and is awaiting Senate vote.
The New Jersey State Bar Association’s Board of Trustees, Legislative Committee, Criminal Law Section and Municipal Court Practice Section all voted to support this legislation, believing the bill will allow the defendants the opportunity to give back to their community by receiving restorative justice. This will allow an opportunity for judges to avoid putting a defendant in jail if they cannot pay a penalty, based upon hardship or other unanticipated circumstances. Additionally, the bill will spare defendants their time and money by not having to continually travel back and forth to the courthouse.
A-321 (Dancer)/S-2910 (Sweeney) (NJSBA opposes) Establishes a four-year pilot program in Ocean County for electronic monitoring of certain domestic violence offenders; designated as Lisa's Law; appropriates $1 million. On Dec. 12, the bill was released from the Senate Budget and Appropriations Committee and is awaiting Senate vote.
The New Jersey State Bar Association’s Board of Trustees, Legislative Committee, and Family Law Section voted to oppose this legislation, believing the bill, as originally drafted, anticipated ordering electronic monitoring of a defendant based solely upon an arrest, not a conviction, for violating a temporary restraining order or final restraining order. The state bar applauded the fact that the sponsor in the Assembly Judiciary Committee had amended this legislation to make the bill applicable only to persons who had been convicted of a domestic violence offense. However, the latest version of the bill impacts persons charged and convicted, which the NJSBA believes is unacceptable. As a result, the current version reopens constitutional questions about whether someone only accused of a violation must be subject to monitoring and reporting of his or her whereabouts. In addition, there are concerns that have been raised about the risks associated with revealing the whereabouts of the domestic violence victim to the person charged/convicted of the underlying domestic violence offense and how the bill would function in such a densely populated state. The state bar does wish to acknowledge the sponsor for providing funding for the legislation.
S-1567 (Turner) (Under review by the NJSBA) Clarifies factors used to determine when child support orders can be terminated. On Dec. 16, the bill was released from the Senate Judiciary Committee with a committee substitute and is awaiting Senate vote.
The New Jersey State Bar Association’s Board of Trustees, Legislative Committee and Family Law Section all voted to oppose this legislation, believing public policy is best served when applications for termination orders are made by the parties involved, directly to the court, in a public, adversarial forum, and that the right to apply for such orders should not be delegated to the Probation Division. However, the latest bill has been substantially amended addressing NJSBA concerns and is currently under review.
A-700 (Ramos)/S-315 (Whelan) (NJSBA supports) Authorizes the Office of Public Defender to provide legal representation for a child in proceedings after parental rights have been terminated. On Dec. 9, the bill was heard before the Senate Judiciary Committee. On Dec. 12, the bill was released from the Senate Judiciary Committee and referred to the Senate Budget and Appropriations Committee where it is awaiting vote.
The New Jersey State Bar Association Board of Trustees, Legislative Committee and Family Law Section support this legislation, recognizing that a number of children are awaiting permanent placement, and unfortunately, after termination of parental rights, children are legal orphans until adopted. This legislation will allow legal guardians to assist with protecting the child’s interest of formalizing placement even if an appeal is taken or new legal issues arise while pending placement.