January 20, 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 the association’s website at www.njsba.com.
RECENT AMICUS ACTIVITY
The New Jersey State Bar Association sometimes acts as amicus curiae in pending cases before New Jersey and federal courts where issues are believed to affect the legal profession or the system of justice.
State of New Jersey v. James J. Revie
Supreme Court Docket No.: 072600
On Jan. 14, the New Jersey State Bar Association filed a proposed amicus curiae brief in the Supreme Court of New Jersey. The case focuses on the following question: Is a defendant who is convicted of a third offense of driving while intoxicated (DWI) more than 10 years after his second DWI conviction entitled to a second step-down in sentencing under N.J.S.A. 39:4-50(a)(3) after having already received a step-down in sentencing on his second DWI conviction?
The brief was drafted by Jeffrey Evan Gold of Gold & Associates, PA. To obtain a copy of the brief, please visit the association’s website.
D & D Associates v. Board of Education of North Plainfield
United States Court of Appeals for the Third Circuit Docket Nos. 12-2046 & 12-2236
On Jan. 8, the Third Circuit issued its decision in this case, where the NJSBA had argued in a brief, drafted by Thomas H. Prol, urged the Court to dismiss claims of tortious interference and defamation against an attorney representing the board of education by virtue of the absolute protections afforded by the litigation privilege. The Third Circuit affirmed the district court’s dismissal without prejudice.
NJSBA DRAFTED LEGISLATION
A-4023 (Burzichelli) (NJSBA supports) Modifies the rights of a judgment creditor of a limited liability company (LLC) member; makes certain technical corrections to the Revised Uniform Limited Liability Company Act (RULLCA). On Jan. 13, the bill was substituted for S-2556 (Sarlo) before it passed in both the Senate (39-0) and the Assembly (73-0-0) and was sent to the governor.
The New Jersey State Bar Association initiated this legislation, believing the proposed changes are essential to ensure the provisions in the existing RULLCA are well understood and implementation is seamless. The association believes the Senate amendments are also necessary to address concerns raised by NJSBA trust and estate attorneys that the 2012 law permits creditors to liquidate LLC interests and reduces certain tax benefits afforded under the previous law.
These amendments have been adopted to 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, though, 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 high creditor protection once afforded by New Jersey law was inadvertently lost in RULLCA’s enactment in 2012. Accordingly, the NJSBA believes the present law may have negative results on the formation of LLCs in New Jersey and, the issue will be addressed by amendments to the bill.
NJSBA RECENT ACTION IN TRENTON
A-1521 (Burzichelli) (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 Jan. 13, the bill was substituted for S-2555 (Van Drew). The bill then passed in both the Senate (38-0) and the Assembly (71-0-0) and was sent to the governor.
The New Jersey State Bar Association strongly supports empowering administrative law judges (ALJ) with authority to render a final decision, pursuant to the Administrative Procedures Act (APA). The state bar does not believe in supporting 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. That is currently the situation for attorneys who practice before the OAL, and the NJSBA believes it unfairly limits an attorneys’ ability to fully and properly represent and counsel clients. While the association would have preferred final decision authority remain with the administrative law judge, it continues to support the legislation as amended by the Senate State Government, Wagering, Tourism and Historic Preservation Committee.
A-3303 (Singleton) (NJSBA opposes) Prohibits animal cruelty violators from owning domestic companion animals and from working at animal-related enterprises; designated as Moose's Law. On Jan. 8, Gina Calogero, chair of the New Jersey State Bar Association Animal Law Committee, testified before the Senate Economic Growth Committee regarding the bill, which was later released from the committee. On Jan. 13, the bill was substituted for S-2220 (Allen), was passed in both the Senate (38-0) and the Assembly (70-0-0) and was sent to the governor.
The New Jersey State Bar Association expressed concerns with this legislation, because the bill defines animal cruelty violation as "any crime or disorderly persons offense under chapter 22 of Title 4 of the Revised Statutes, or any civil violation under R.S. 4:22-26, or in any other state or jurisdiction, conduct which, if committed in New Jersey, would constitute a crime or disorderly persons offense under chapter 22 of Title 4 of the Revised Statutes, or a civil violation under R.S. 4:22-26." The wide-ranging sweep of the proposed law defines an animal-related enterprise as virtually any employment or volunteer endeavor that involves working with an animal in any manner.
The definition of animal cruelty is largely determined by a subjective opinion of the individual officer, who in many cases is not a sworn law-enforcement officer, filing the criminal charges. This legislation would impose its mandatory sentence if a person had been convicted of an animal cruelty offense in any other jurisdiction without knowing whether or not such offenses were consistent with New Jersey law. This bill would also strip the courts of any discretion in imposing a sentence for criminal conviction of an animal cruelty offense regardless of the seriousness of the violation, which, in essence, could be a disorderly person’s offense. The New Jersey State Bar Association has traditionally opposed mandatory minimum sentences, given that they eliminate judicial discretion to impose the proper penalty for the particular facts involved.
Consumer Protection Law
S-2018 (Stack) (NJSBA supports) Authorizes the award of attorney's fees and expenses in landlord-tenant actions under certain circumstances. On Jan. 9, the bill passed in the Senate (27-11) and was sent to the governor.
The New Jersey State Bar Association supports the bill as amended in attempting to broker a compromise by reducing the onerous nature of the original legislation and providing that a tenant may only recover attorney fees if the tenant prevails in an action arising out of the lease. The state bar favors the Senate amendments to the bill, which provide judicial discretion in awarding attorney fees for a tenant, rather than subjecting the award of attorney fees to a judge’s discretion for both a landlord and a tenant, as provided in the Assembly amendments.
A-3254 (Coughlin) (NJSBA supports) Permits a municipal court to order certain offenders to perform community service in lieu of payment of a penalty. On Jan. 13, the bill was substituted for S-2309 (Vitale), passed in the Senate (38-0) and sent to the governor.
The New Jersey State Bar Association supports this legislation, believing it will allow defendants an opportunity to give back to their community in a positive fashion. This bill will further provide an opportunity for judges to avoid putting a defendant in jail if they cannot pay a penalty, based upon hardship or other unanticipated circumstances, and thus, spare defendants time and money by not having to continually travel back and forth to the courthouse. The New Jersey State Bar Association acknowledges a concern that municipalities will not have the manpower or funding to oversee this program, which could be problematic. Thus, the state bar believes the issue is worthy of further consideration.
S-436 (Sacco) (NJSBA opposes) Expands the DNA database to include samples from disorderly persons. On Jan 13, the bill was substituted for A-468 (Jimez), passed in the Assembly (53-18-0) and sent to the governor.
The New Jersey State Bar Association opposes this legislation, believing the bill is unconstitutionally broad and intrudes upon an individual’s First Amendment rights. While the state bar supports the efforts to protect the health and safety of all citizens of New Jersey, it believes this bill falls short of the type of offense for which the retrieval of a DNA sample should be required.
A-321 (Dancer) (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 Jan. 14, the bill passed in the Senate (28-0) and was sent to the governor.
The New Jersey State Bar Association opposes 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 association applaud the fact that the sponsor in the Assembly Judiciary Committee 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 state bar 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, the NJSBA has concerns 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.
A-735 (Eustace) (NJSBA supports) Permits a child who moves out of a school district due to a family crisis to remain enrolled in that district until the end of the school year. On Jan. 13, the bill was substituted for S-1438 (Ruiz). The bill later passed in both the Senate (38-0) and the Assembly (71-0-0) and was sent to the governor.
The New Jersey State Bar Association supports this legislation as amended, believing it will have a minimal impact on the student/child who is going through a transition.
A-2128 (Burzichelli) (NJSBA supports)Permits certain former mayors to solemnize marriage and civil union ceremonies. On Jan. 9, the bill was substituted for S-2209 (Weinberg). The bill then passed in both the Senate (36-2) and the Assembly (76-3-1) and was sent to the governor.
The New Jersey State Bar Association supports any legislation that would allow for more people to perform marriage and civil union ceremonies.
Municipal Court Practice
A-1844 (Diegnan) (NJSBA supports) Makes discretionary a driver's license suspension for a first offense of driving without motor vehicle liability insurance. On Jan. 13, the bill passed in both the Senate (38-0) and the Assembly (70-0-0) and was sent to the governor.
The New Jersey State Bar Association supports this bill as amended, believing the amendments provide that a penalty for a first offense of driving without required motor vehicle liability insurance coverage is to be a period of license suspension of one year from the date of conviction. The bill further provides that the court may reduce or eliminate the sentence if proof of insurance is provided at the time of the hearing.
S-613 (Sweeney) (NJSBA opposes) Concerns certain workers' compensation supplemental benefits. On Jan. 9, the bill passed in the Senate (23-14), was received in the Assembly and was referred to the Assembly Labor Committee.
The New Jersey State Bar Association opposes this legislation in order to preserve the “reverse offset” provision in New Jersey, vis-a-vis Social Security, which provides for a reduction of the workers' compensation benefit of a worker also receiving disability insurance. The state bar believes enacting this legislation has the potential of harming the economic integrity of New Jersey’s current cost-effective system by allowing for a double recovery of disability benefits and workers’ compensation benefits, which will in turn increase the cost of doing business in New Jersey. A potential alternative that would limit these adverse consequences would be to limit the application of the bill to survivor/death benefits.