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

February 18, 2013

February 18, 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 a complete copy of the Capitol Report and/or retrieve a former Capitol Report, please visit our website at www.njsba.com

 

NJSBA RECENT ACTION IN TRENTON

 

Administrative Law

S-2555 (Van Drew) 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 Feb. 7, 2013, the bill was introduced and referred to the Senate State Government, Wagering, Tourism and Historic Preservation Committee.

 

The NJSBA’s Board of Trustees, Legislative Committee, Elder and Disability Law Section, and Administrative Law Section all support this legislation empowering administrative law judges with authority to render a final decision, pursuant to the Administrative Procedures Act. The state bar feels it cannot support a system of justice where one party, in a contested matter, has the ability to overrule a judge once a decision has been rendered at the conclusion of a hearing. That is currently the situation for attorneys who practice before the OAL, and it unfairly limits an attorney’s ability to fully and properly represent and counsel his or her clients. Amendments made to the bill in the Assembly further its objectives by limiting those instances where agency heads can still retain final decision-making authority.

 

Business Law

A-3049 (Diegnan) Allows certain business combinations between resident domestic corporations and interested stockholders. On Feb. 7, 2013, the bill was substituted for S-2328 (Gill), which passed in the Senate (35-1) and was sent to the governor. 

 

The NJSBA Board of Trustees, Legislative Committee and Business Law Section voted to support this legislation because they believe it provides flexibility in complying with the New Jersey Shareholder Protection Act without undermining the specific purposes of this complex statute.

 

A-3050 (Diegnan) Allows corporate shareholder meeting participation by remote communication and clarifies remedies for dissenting shareholders. On Feb. 7, 2013, the bill was substituted for S-2327 (Gill), which passed in the Senate (34-1) and was sent to the governor. 

 

The NJSBA supports this legislation. The NJSBA Board of Trustees, Legislative Committee and Business Law Section voted to support this legislation because they believe it modernizes New Jersey to expand shareholder participation and also clarifies the rights of dissenting shareholders.

 

 A-3123 (Diegnan) Revises the law concerning derivative proceedings and shareholder class actions. On Feb. 7, 2013, the bill was substituted for S-2326 (Gill), which passed in the Senate (36-1) and was sent to the governor.

 

The NJSBA Board of Trustees, Legislative Committee and Business Law Section voted to support this legislation because they believe it brings clarity to the law governing derivative proceedings and shareholder class actions. In addition, the NJSBA believes the dollar amount increase is long overdue.

 

Criminal Law

A-3598 (Gusciora) Establishes a conditional dismissal program in municipal court. On Feb. 7, 2013, the bill was released from the Assembly Appropriations Committee and is awaiting Assembly vote.

 

The NJSBA’s Board of Trustees, Legislative Committee and Municipal Court Practice Section voted to support this legislation because it will fix a longstanding inequity in the municipal court system. Presently, pre-trial intervention (PTI) is only allowed for indictable offenses. The state bar strongly supports creating an alternative, such as conditional discharge, to address indictable offenses. Municipal Court Practice Section representatives Kenneth Vercammen and Michael Hoffman assisted in representing the NJSBA’s position by testifying in support of this bill.

 

In 2003, the American Bar Association adopted a report titled “Collateral Sanctions and Discretionary Disqualification of Convicted Persons,” which urged legislatures throughout the country to review their criminal code to ensure the penalties associated with violations are not so insurmountable that it becomes difficult for convicted individuals to reintegrate into society after serving their sentence or paying fines. The NJSBA embraced these findings as part of its longstanding position in opposition to arbitrary or excessive fees and surcharges for motor vehicle penalties. For this reason, the state bar strongly supports the present legislation, which provides an appropriate set of penalties.

 

S-2543 (Beach) Makes it a crime of the third degree to practice psychology, chiropractic or state-certified psychoanalysis without the appropriate license or certification. On Feb. 7, 2013, the bill was introduced and referred to the Senate Judiciary Committee.

 

The NJSBA Board of Trustees, Legislative Committee, Family Law Section, Health Law Section and Women in the Profession Section voted to support this legislation with amendments because they believe the bill would protect vulnerable patients seeking treatment for very personal and emotional problems from unlicensed professionals who have the potential to inflict significant harm on them. However, the NJSBA has suggested the legislation be amended to exclude attorneys, clergy, and court mediation professionals from coverage under the bill. Otherwise, persons who are authorized by law to engage in activities that might constitute the practice of “marriage and family therapy,” for instance a lawyer giving advice having to do with divorce or custody to a client, may be accused of practicing family therapy even though clients are often simply looking for someone to talk to about their family problems.

 

Also, the NJSBA feels the legislation is vague and overbroad. As a result, the definition of what constitute the act of “practicing” marriage, family therapy, psychology or chiropractic medicine without state certification must be more properly defined in the legislation.

 

Elder and Disability Law

S-1034 (Allen) Concerns special needs trusts for individuals with developmental disabilities. On Feb. 7, 2013, the bill passed in the Senate (37-0), was received in the Assembly and referred to the Assembly Human Services Committee.

 

The NJSBA's Board of Trustees and Legislative Committee voted to support this legislation. The Division of Developmental Disabilities currently has a policy by which it places a child in a group home if the child's parent donates an agreed-upon residence or cash to purchase a residence. The bill would give trustees the same option. At present, trustees are unwilling to exercise this option because of the liability concerns. The person establishing the residence would have the right under this bill to authorize the trustee to exercise the option of a placement.

 

Health Law

A-3132 (Vainieri Huttle)/S-2052 (Singer) Establishes a bill of rights for continuing care retirement community residents. On Feb. 7, 2013, the bill was released from the Assembly Health and Senior Services Committee with amendments and is awaiting Assembly vote.

 

The NJSBA Board of Trustees, Legislative Committee and Elder Law Section support the Continuing Care Retirement Community (CCRC) Bill of Rights. It is important for seniors who live in CCRCs in New Jersey to know they have rights that can be monitored and enforced through the long-term care ombudsman regardless of the ‘setting’ in which the resident resides. Currently, residents in the independent living section of a CCRC are not entitled to ombudsman involvement in their case, even though there may be inappropriate pressure from the community to move to a higher level of care within the CCRC, such as assisted living or nursing home care. CCRC contracts are complicated, and the programs themselves are expensive and fraught with financial uncertainty. This bill gives a voice to the reasons for their uncertainty.

 

PENDING LEGISLATION

 

Banking Law

S-2144 (Gill)/A-3613 (Schaer) Repeals and replaces Chapters 1 and 7 of the Uniform Commercial Code and revises various additional provisions of the code. On Feb. 7, 2013, the bill was released from the Assembly Financial Institutions and Insurance Committee and is awaiting Assembly vote.

 

Civil Trial Bar

A-1831 (Conaway) Concerns liability and insurance coverage for medical malpractice actions. On Feb. 7, 2013, the bill was released from the Assembly Health and Senior Services Committee with amendments and is awaiting Assembly vote.

 

Criminal Law

A-2131 (Burzichelli) Authorizes the release of sex offender registration information to the Department of Human Services and county welfare agencies. On Feb. 7, 2013, the bill was substituted for S-1946 (Greenstein), which passed in the Senate (37-0) and was sent to the governor.

 

S-2092 (Pennacchio)/A-3003 (Casagrande) Creates Lieutenant Scott Jenkins' Law; creates certain new criminal offenses aimed at theft from carriers; amends theft statutes. On Feb. 7, 2013, A-3003 was released from the Assembly Appropriations Committee and is awaiting Assembly vote. On Feb. 7, 2013, S-2092 passed in the Senate (35-0), was received in the Assembly and referred to the Assembly Appropriations Committee.

 

Family Law

A-2984 (Vainieri/Huttle) Directs a portion of the Unclaimed Child Support Trust Fund to be used to balance unpaid receivables resulting from federal income tax refund offset reversals. On Feb. 7, 2013, the bill was released from the Assembly Appropriations Committee and is awaiting Assembly vote.

 

Health Law

A-3328 (Burzichelli) Creates the New Jersey Death with Dignity Act; permits a qualified patient to self-administer medication to end his or her life in a humane and dignified manner, subject to voter approval. On Feb. 7, 2013, the bill was released fro the Assembly Health and Senior Services Committee and is awaiting Assembly vote.

 

Higher Education

A-748 (Barnes) Directs the Higher Education Student Assistance Authority to forgive certain student loans in the event of the borrower's death. On Feb. 7, 2013, the bill was released from the Assembly Appropriations Committee and is awaiting Assembly vote.

 

Judicial Administration

S-1219 (Codey)/A-1640 (Watson-Coleman) Increases compensation for persons wrongfully imprisoned. On Feb. 7, 2013, the bill was released from the Assembly Appropriations Committee with a committee substitute and is awaiting Assembly vote. 

 

Labor and Employment Law

S-1263 (Vitale) Allows corporation business tax credit and gross income tax credit for certain wages paid to qualified interns in tax years 2013 and 2014. On Feb. 7, 2013, the bill was substituted for A-1271 (Coughlin).

 

Lesbian, Gay, Bisexual and Transgendered Rights

S-2399 (Scutari) Provides, under certain circumstances, for immediate issuance of marriage and civil union licenses at the time license application is made. On Feb. 7, 2013, the bill passed in the Senate (24-10), was received in the Assembly and referred to the Assembly Judiciary Committee.

 

Military Law and Veterans’ Affairs

A-1898 (Coughlin) Extends burial of indigent veterans to those who did not serve in time of war; clarifies the role of the Department of Military and Veterans Affairs in identifying deceased veterans; provides additional funding for burial of indigent veterans. On Feb. 7, 2013, the bill was released from the Assembly Appropriations Committee with amendments and is awaiting Assembly vote.

 

Professional Responsibility and Unlawful Practice

A-2512 (Prieto) Mandates notaries public under certain circumstances to advertise information to the public regarding limitations on their scope of authority. On Feb. 7, 2013, the bill was transferred to the Assembly Judiciary Committee from the Assembly Regulated Professions Committee. On Feb. 11, 2013, the bill was released from the Assembly Regulated Professions Committee with amendments and is awaiting Assembly vote.

 

S-2545 (O’Toole) Prohibits notaries public from falsely representing themselves as attorneys in advertisements. On Feb. 7, 2013, the bill was introduced and referred to the Senate Judiciary Committee.

 

Real Property, Trust and Estate Law

A-563 (Wagner) Requires a multiple dwelling owner advised of structural safety issues discovered during private inspection to advise the Department of Community Affairs (DCA); requires the DCA to schedule an emergency inspection of the multiple dwelling within 24 hours. On Feb. 7, 2013, the bill was withdrawn from the files.

 

Solo and Small Firms

S-2473 (Whelan) Establishes the small business loan guarantee program in the Economic Development Authority (EDA) to support capital purchases and operating expenses, and permits certain qualified businesses in regional centers to qualify for certain EDA loans. On Feb. 7, 2013, the bill passed in the Senate (23-13), was received in the Assembly without committee reference and is awaiting Assembly vote.

 

Taxation Law

A-1271 (Coughlin) Allows corporation business tax credit and gross income tax credit for certain wages paid to qualified interns in tax years 2012 and 2013. On Feb. 7, 2013, the bill was substituted for S-1263 (Vitale), which passed in the Senate (22-14) and was sent to the governor.

 

 

NOMINATIONS

*Designates NJSBA members

 

On Feb. 4, 2013, the following persons were released from the Senate Judiciary Committee and received advice and consent from the state Senate:


JUDGE OF THE SUPERIOR COURT:
Arthur Bergman, of East Brunswick
Sherry A. Hutchins-Henderson, of West Orange
Robert J. Mega, of Clark
Bonnie J. Mizdol, of Paramus*
Kenneth J. Slomienski, of Wallington

SOUTH JERSEY TRANSPORTATION AUTHORITY:

Peter C. Elco, of Absecon, to replace Louis Toscano, resigned

 

SUSSEX COUNTY SURROGATE:

Gary R. Chiusano, of Augusta, to replace Nancy D. Fitzgibbons, resigned

 

On Feb. 7, 2013, the following persons were referred to the Senate Judiciary Committee for consideration:

 

JUDGE OF THE SUPERIOR COURT:

Carlia M. Brady, of Woodbridge*

Maritza B. Byrne, of Towaco

Mitzy Galis-Menendez, of Cliffside Park*

Jeffrey R. Jablonski, of Kearny*

Alan G. Lesnewich, of New Providence

Kathleen A. Sheedy, of Cream Ridge*

Thomas J. Shusted, of Cherry Hill*

Stephen J. Taylor, of Montgomery*

 

OCEAN COUNTY PROSECUTOR:

Joseph D. Coronato, of Toms River*

 

On Feb. 7, 2013, the following persons were reported by the Senate Judiciary Committee

 

JUDGES OF THE SUPERIOR COURT

Peter A. Bogaard, of Chester

Bradford M. Bury, of Watchung*

J. Randall Corman, of Sayreville

Angela White Dalton, of Howell*

Katie A. Gummer, of Rumson*

Daniel R. Lindemann, of Wayne*      

Arnold L. Natali, of Little Silver*

Michael F. O'Neill, of Branchburg*

Joseph W. Oxley, of Red Bank

Christopher D. Rafano, of South River

Nesle A. Rodriguez, of Jersey City*

Donald J. Stein, of Haddon Heights

James P. Wilson, of Roselle

Mara E. Zazzali-Hogan, of Shrewsbury*

 

ADMINISTRATIVE LAW JUDGE:

Joseph A. Ascione, of Westfield*

 

PASSAIC COUNTY DEPUTY SUPERINTENDENT OF ELECTIONS:

Shona L. Mack-Pollock, of Wanaque, to replace Robert J. DeMers Jr.

 

PASSAIC COUNTY SUPERINTENDENT OF ELECTIONS:

Sherine El-Abd, of Clifton

 

On Feb. 7, 2013, the following persons received advise and consent from the full Senate

 

JUDGE OF THE SUPERIOR COURT:
Arthur Bergman, of East Brunswick
J. Randall Corman, of Sayreville
Angela White Dalton, of Howell*
Katie A. Gummer, of Rumson*
Sherry A. Hutchins- Henderson, of West Orange
Daniel R. Lindemann, of Wayne*
Linda E. Mallozzi, of Union*
Robert J. Mega, of Clark
Bonnie J. Mizdol, of Paramus*
Arnold L. Natali, of Little Silver*
Michael F. O'Neill, of Branchburg*
Joseph W. Oxley, of Red Bank
Christopher D. Rafano, of South River
Nesle A. Rodriguez, of Jersey City*
Kenneth J. Slomienski, of Wallington
Donald J. Stein, of Haddon Heights
James P. Wilson, of Roselle
Mara E. Zazzali-Hogan, of Shrewsbury*

ADMINISTRATIVE LAW JUDGE:
Joseph A. Ascione, of Westfield*

 

PASSAIC COUNTY DEPUTY SUPERINTENDENT OF ELECTIONS:

Shona L. Mack-Pollock, of Wanaque, to replace Robert J. DeMers Jr.

 

PASSAIC COUNTY SUPERINTENDENT OF ELECTIONS:

Sherine El-Abd, of Clifton