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

Capitol Report

July 1, 2013

 

This is a status report provided by the New Jersey State Bar Association (NJSBA) on legislation, regulations, gubernatorial nominations and appointments, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.

 

NJSBA RECENT ACTION IN TRENTON

 

Business Law

A-2405 (Quijano) (NJSBA opposes) Removes statute of limitations in certain civil actions for sexual abuse; expands categories of defendants liable in such actions. On June 20, the bill was substituted on the General Assembly floor and is awaiting its vote.

 

The NJSBA Board of Trustees and its Legislative Committee opposed this legislation because current law provides a sufficient basis to determine a defendant’s guilt. In addition, the legislation removes discretion from judges. Finally, the legislation could have a negative impact upon board members and trustees discouraging their future participation on various boards of directors.

 

Consumer Protection Law

S-2551 (Van Drew) (NJSBA supports) Permits real estate licensees to prepare broker price opinions and comparative market analyses. On June 20, the bill was amended on the Assembly floor and on June 24, the bill was substituted for A-3718 (Diegnan) and passed in the Assembly (76-0-0).

 

The NJSBA Board of Trustees, Legislative Committee and Consumer Protection Law Committee support this legislation to restore the prior practice of permitting real estate brokers and salespersons to provide valuation services for purposes other than marketing of real estate because, in New Jersey, homeowners have properly relied upon such persons in the past. These professionals offer competent services at reduced costs relative to those of an appraiser for such purposes as tax appeals, family law disputes and bankruptcy valuations for many years and the practice has not raised significant consumer protection concerns. This bill will reduce the cost of litigation for consumers and other affected parties.

 

Criminal Law

S-436 (Sacco) (NJSBA opposes) Expands DNA database to include samples from disorderly persons. On June 24, the bill passed in the Senate (35-3) and was received in the Assembly and referred to the its Law and Public Safety Committee.

 

The NJSBA Board of Trustees, Legislative Committee and Middlesex County Bar Association expressed concerns with this legislation that the bill may be unconstitutionally broad and intrusive of individual First Amendment rights. While the association supports efforts to protect the health and safety of New Jersey residents, this bill falls short.

 

Family Law

A-321 (Dancer) (NJSBA opposes) Establishes four-year pilot program in Ocean County for electronic monitoring of certain domestic violence offenders; designated as "Lisa's Law"; appropriates $1 million. On June 20, the bill passed in the Assembly (70-0-6). On June 25, the bill was held in the Senate Budget and Appropriations Committee.

 

The NJSBA Board of Trustees, Legislative Committee, and Family Law Section opposed this legislation because 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. At the time, that association applauded the sponsor amending this legislation to make the bill applicable only to persons who have been convicted of a domestic violence offense. However, the bill was amended to reinsert “charged” defendants into this legislation which again raises constitutional questions about whether someone only accused of a violation must be subject to monitoring and reporting of his or her whereabouts. The NJSBA continues to have concerns the risk associated with revealing the whereabouts of the domestic violence victim to the person convicted of the domestic violence offense and how the bill would function in such a densely populated state.

 

A-3472 (Albano) (NJSBA supports) Establishes the New Jersey Task Force on Domestic Violence and Abuse. On June 20, the bill passed in the Assembly (76-0-0).

 

The NJSBA Board of Trustees, Legislative Committee and Family Law Section supported this legislation provided that at least one member is a licensed New Jersey attorney who routinely handles domestic violence matters.

 

A-3544 (Dancer) (NJSBA supports) Requires notification of certain domestic violence victims through the Victim Information and Notification Everyday System (VINE). On June 24, the bill passed in the Assembly (76-0-0).

 

The NJSBA Board of Trustee, Legislative Committee, Family Law Section and Women in the Profession Section supported this legislation because it specifies the situations for notification and provides for a new automated system for notification. This would be helpful to prosecuting agencies without an automated system of notification. Additionally, it would assist in streamlining the automated system of notification.  

 

S-789 (Weinberg) (Under review by the NJSBA) Codifies in statute case law developed legal standards for establishing grandparent and sibling visitation with a child when visitation objected to by child's parent, guardian, or legal custodian. On June 20, the bill passed in the Senate (38-1), was received in the Assembly and referred to the its Judiciary Committee.

 

The NJSBA’s Board of Trustees, Legislative Committee and Family Law Section opposed this bill because although we believe this legislation was intended to address recent federal and state Supreme Court rulings that have curbed the rights of grandparents to visit with their grandchildren. The association has had concerns regarding the original bill, which appears to be vague and overbroad and as a result may be susceptible to a constitutional challenge. The association is reviewing amendments to the bill.

 

S-2814 (Vitale) (NJSBA opposes) Permits adoptees and certain others to obtain adoptee's original birth certificate and other related information. On June 20, the bill passed in the Senate (30-8), received in the Assembly and referred to its Women and Children Committee.

 

The NJSBA Board of Trustees, Legislative Committee and Family Law Section opposed this legislation because this bill amends the law to allow adult adopted persons access to their birth certificate through a rather administratively convoluted process. In addition, the bill fails to allow the birth parent that places the child for adoption prior to the date of enactment adequate opportunity to prevent disclosure of the name(s) of the birth parent.

 

The NJSBA has reviewed this and other prior versions of the bill over many years. Historically, the association has supported mutual consent adoption registries and supported adult adoptee access to the original birth certificate, if made prospective in its application. Given the provisions in this latest bill, the NJSBA has strong objections listed as follows: the bill disregards the psychology of adoption; the bill conflicts with the Safe Haven Infant Protection Act; although the bill continuously refers to birth "parents" its requirements clearly impact birth mothers much more so than birth fathers; the bill may inadvertently encourage abortions; the bill may encourage women to keep babies that may be best cared for by an adoptive family; the bill's requirements are difficult to follow, would invade the birth mother's privacy, and are unrealistic; the obligation to report an address change to the state registrar's office is unreasonable; there is no sunset clause; it is not realistic that a birth parent who lives outside the state of new jersey will comply with our state's laws in order to avoid such invasion of privacy; it is almost impossible for every person whom this bill applies to, particularly those who have already placed their babies up for adoption, to learn about the details of such a new law in time to protect their privacy; and the bill provides inadequate funding to inform birth parents of the change in the law.

 

A more balanced approach is to create a confidential intermediary who can protect the interests of the birth parent and the adoptee as they work toward building a relationship on mutually agreed upon terms. This is why alternative legislation, like A-3746 sponsored by Assemblyman Peter Barnes, III, is a better way to address this issue.

 

Health Law

S-2052 (Singer) (NJSBA supports) Establishes bill of rights for continuing care retirement community residents. On June 20, the bill was amended on the Assembly floor and on June 24, 2013, the bill passed in the Assembly (78-0-0).

 

The New Jersey State Bar Association’s Board of Trustees, Legislative Committee and Elder and Disability Law Section assisted in developing this position. The association feels it is important for seniors who live in Continuing Care Retirement Community’s (CCRC) in New Jersey to know that they have rights that can be monitored and enforced through the Long Term Care Ombudsman regardless of what “setting” the resident is residing in.

 

Currently, if you are in the independent living section of a CCRC, the Ombudsman would not be able to get involved in your 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 and this Bill gives a voice to the reasons

 

Judicial Administration

A-581 (Spencer) (NJSBA supports) Authorizes the court to credit a person in default of a court-imposed financial obligation under certain circumstances. On June 20, passed in the Assembly (66-6-0).

 

The NJSBA Board of Trustees, Legislative Committee and Judicial Administration Committee supported this legislation because it is appropriate to allow the person to be credited with time served if they are an indigent and can not afford to pay a fine. This is a particularly important issue given that New Jersey’s prisons continue to be overcrowded.

 

A-3308 (Ramos) (NJSBA supports) Authorizes the Judiciary to revise or supplement fees, subject to limitations, to fund Legal Services of New Jersey and e-court information system; requires review and reporting on fees and expenditures of such fees. On June 20, the bill was amended in the Assembly Budget Committee. On June 24, the bill passed in the Assembly (45-26-6).

 

The NJSBA Board of Trustees, Legislative Committee, Consumer Protection Law Committee, Dispute Resolution Section, Family Law Section, Insurance Defense Committee, Lesbian, Gay, Bisexual, and Transgender Rights Section, and Pro Bono Committee supported this legislation because the breadth of the fee increases have been reduced, and the focus of such increases has been squarely placed upon its purpose - funding both the Judiciary’s e-court expansion and increased funding for legal services. The NJSBA would prefer that funding for these enterprises would come directly from the General Treasury. The association would hope and urge that future funding increases would be paid for in this manner. However, we understand the difficult economic circumstances facing New Jersey, the dire financial needs confronting the Judiciary and LSNJ and the adverse consequences attendant to failing to act at this time.

 

This bill, in addition to safeguards built into the legislation to assure that the funds are used for the purposes for which they are dedicated, that a regular update is provided to the Legislature, that a public hearing is held to gauge the impact of proposed fee increases, and that the continued need for the fees is periodically examined by the Supreme Court and the Legislature making certain that the increases remain tied to economic circumstances have made this a stronger piece of legislation.

 

The NJSBA takes no position on the Assembly Budget Committee’s June 17 amendments that switch funding priority from the New Jersey Judiciary to Legal Services of New Jersey.

Special Civil Part

S-2018 (Stack) (NJSBA opposes) Authorizes award of attorney's fees and expenses in landlord-tenant actions under certain circumstances. On June 20, the bill was amended on the Assembly floor and was awaiting Assembly vote. On June 24, the bill was substituted for A-3851 (Coughlin) and passed in the Assembly (69-5-3).

 

The NJSBA Board of Trustees, Legislative Committee and Special Civil Part Committee opposed this legislation because the association feels, if enacted, the bill would create an uneven playing field between landlords and tenants by requiring that landlords pay attorney’s fees even when a breach of contract was the fault of the tenant or if the tenant cured the breach prior to the rendering of final judgment.

 

While it is the NJSBA’s preference that the legislation not advance, the NJSBA supports the floor amendments which attempt to broker a compromise by reducing the onerous nature of the legislation. Those amendments include eliminating the recovery of expenses, the language for allowing attorney’s fees to be provided when a tenant cures a breach of a lease, and the awarding of attorney’s fees in a cause of action if a landlord could not receive an award of attorney fees. We believe this is a balanced approach.

 

Women in the Profession

A-101 (Handlin) (NJSBA supports) Creates a civil "rape shield" law. On June 20, the bill passed in the Assembly (78-0-0).

 

The NJSBA’s Board of Trustees, Legislative Committee, Insurance Defense Committee, Judicial Administration Committee and Women in the Profession Section supported the intent of this bill because the privacy of plaintiffs in these types of cases should be protected.

 

If a person is claiming that he/she is being sexually harassed that person's private sexual conduct, as defined in the proposed bill, should not be an issue. However, since there are certain rare instances when a person's sexual conduct may be a valid issue, the NJSBA did have some concerns with the legislation as drafted in its present form. 

 

First, Section 1a seeks to prevent any inquiries at depositions unless one has established specific facts showing good cause for that discovery.This would seem to require a pre-deposition application to the Court for leave to ask any questions in this subject area. Normally, discovery issues are broadly interpreted under our court rules so that parties are entitled to obtain information even though that information is not admissible at trial. Under this legislation a party now needs "specific" facts before even asking questions at a deposition. This may be an extremely difficult standard to meet in such cases. Furthermore, the phrase "discovery of information" could possibly implicate defendant's attorney hiring an investigator to question potential witnesses about the "sexual conduct" of the plaintiff. It is unclear if Section 1a is intended to be construed in such a matter.

 

In addition, Section 1b(1) reiterates procedures that attorneys and judges should be following. Our Rules of Evidence provide for a preliminary hearing on sensitive matters before attempts are made to introduce evidence to a jury. One would hope that attorneys for both plaintiffs and defendants would be seeking guidance from the Court before delving into sensitive matters in these types of cases.

 

Finally, Section 1b(2) raises the standard to "clear and convincing proof" for evidence of the victim's sexual conduct occurring more than one year before the offense charged. In those rare instances in which a victim's/plaintiff's sexual conduct is relevant to the matter at issue, it seems arbitrary to impose such a standard on conduct occurring more than one year before the offense charged.

 

As stated above, the NJSBA supports the intent of the legislation since a victim of sexual assault or sexual harassment should not be reluctant to file an action because of the fear of intrusive questions into her/his personal life. The NJSBA would, however, prefer that some attempts be made to amend the bill to address the concerns noted herein.

 

PENDING LEGISLATION

 

Animal Law

S-1303 (Kean) Revises penalties for animal cruelty, increasing degree of certain offenses; designated as Patrick's Law.  On June 20, the bill passed in the Senate (39-0) and was sent to Governor Chris Christie.  

 

Business Law

A-3310 (Eustace) (Under review by the NJSBA) Concerns payment of independent contractors.  On June 20, the bill was amended on the Assembly floor and on June 24, the bill passed in the Assembly (46-32-0).

 

A-3818 (Singleton) Clarifies that the "Uniform Electronic Transactions Act" applies to real estate transactions. On June 24, the bill was substituted for S-2242, passed in the Senate (40-0) and was sent to Christie. 

 

S-1441 (Weinberg) Requires cemetery companies to file annual financial report. On June 24, the bill passed in the Senate (39-0), was received in the Assembly and referred to its Regulated Professions Committee.

 

Consumer Protection Law

S-779 (Weinberg) Prohibits cemetery company from charging additional fee for rendering certain services on Sunday.  On June 24, the bill was amended on the Senate floor and is awaiting a vote.

 

Criminal Law

A-3659 (Barnes) Revises definition of "destructive device" so that it includes weapons of 50 caliber or greater. On June 24, the bill was passed in the Assembly (41-33-3) and sent to Christie. 

 

S-1279 (Turner) Upgrades penalty for unlawfully transferring a firearm to an underage person; permits transfer for instruction and training. On June 20, the bill was substituted for A-4179 (Mainor), passed in the Assembly (73-0-2) and sent to Gov. Christie

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Elder and Disability Law

A-2737 (Coughlin) Clarifies intent of Legislature to protect certain senior tenants; aligns housing age restrictions with federal law. On June 20, the bill passed in the Assembly (45-25-3) and was sent to Christie. However, on June 24, the bill was reconsidered for Assembly vote and the Assembly voted to concur with amendments (41-30-4).

 

Environmental Law

A-1312 (Greenwald) Requires report and public hearing prior to DEP recommendation of site for inclusion on Superfund list. On June 20, the bill passed in the Assembly (75-0-0). 

 

Family Law

S-2399 (Scutari) Provides, under certain circumstances, for immediate issuance of marriage and civil union licenses at the time license application is made. On June 13, Christie’s veto was received in the Senate.

 

S-2493 (O’Toole) Revises statutes and enhances penalties for offenses involving child pornography; makes crime of causing a child to engage in a prohibited sexual act subject to "No Early Release Act." On June 20, the bill was substituted for A-3735 (Mainor) and A-3740 (Russo), they passed in the Assembly (75-0-0) and on June 24, the bills passed in the Senate (40-0) and was sent to Christie. 

 

Health Law

S-1253 (Vitale) Requires SHBP and SHEBP to cover treatment for alcoholism, other substance-use disorders, and non biologically-based mental illnesses under same terms and conditions as for other diseases or illnesses. On June 20, the bill was substituted for A-1665 (Johnson), passed in the Assembly (51-20-3) and sent to Christie. 

 

Higher Education

S-1191 (Lesniak) Allows establishment of county-wide purchasing system for certain school district services; offers employment protections for certain food or custodial services employees; and regulates subcontracting by districts and public higher education institutions.  On June 13, the bill was transferred to the Assembly Budget Committee, on June 17, the bill was released from that committee, with amendments and was awaiting the Assembly vote. However, on June 24, the bill was substituted for A-2974 and passed in the Assembly (50-27-1).

 

Judicial Administration

A-3329 (Wisniewski)/S-2184 (Van Drew) Authorizes special Ancient Order of Hibernians license plate. On June 13, the bill was released from the Senate Transportation committee and is awaiting the Senate vote.

 

Labor and Employment Law

A-1273 (Coughlin) Requires SHBP to provide certain information to participating public employers. On June 20, the bill passed in the Senate (31-8) and was sent to Christie. 

 

Land Use Law

A-1851 (Diegnan) (Under review by the NJSBA) Refines certain review and approval of licensed surveyors responsibilities under the "Municipal Land Use Law" and the "map filing law."  On May 6, the bill was released from the Assembly Regulated Professions Committee with amendments and is awaiting the Assembly vote.

 

Local Government Law

S-316 (Whelan) Permits certain county boards of chosen freeholders to publish notices of proposed or amended ordinances by title and summary. On May 20, the bill passed in the Assembly (77-0-0) and on June 20, the bill passed the Senate (40-0) and was sent to Christie. 

 

 

Military Law and Veterans Affairs

A-1898 (Albano) Extends burial of indigent veterans to those who did not serve in time of war; clarifies role of DMVA in identifying deceased veterans; provides additional funding for burial of indigent veterans. On June 20, the bill passed in the Assembly (75-0-0).

 

Municipal Court Practice

S-69 (Codey) Increases fine and imposes license suspension for talking or texting on hand-held device while driving. On May 13, the bill passed the Senate (35-0) and was sent to Christie. 

 

S-2547 (Madden) (Under review by the NJSBA) Creates Task Force on Distracted Driving. On June 24, the bill passed in the Senate (40-0), was received in the Assembly and referred to its Transportation and Public Works Committee.

 

Real Property, Trust and Estate Law

A-2596 (Wisniewski) Removes requirement for one and two-family residences to be equipped with a portable fire extinguisher. On June 20, the bill passed the Assembly (74-1-0). 

 

Renewable Energy, Cleantech and Climate Change

A-1383 (Chivukula) Concerns energy efficiency and renewable energy requirements.  On May 20, the bill was amended, and on June 20, the bill passed in the Assembly (42-28-4).

 

S-2700 (Smith) Expands State's energy efficiency and renewable energy standards. On June 3, the bill was released from the Senate Environment and Energy Committee with amendments and awaits a Senate vote.

 

Taxation

A-946 (Riley) Permits a farm income averaging credit under the New Jersey gross income tax. On May 13, the bill was released from the Assembly Agriculture and Natural Resources Committee and referred to the Assembly Appropriations Committee.

 

A-3857 (Singleton) Requires the state to reimburse certain municipalities for foregone property tax revenue resulting from veterans' property tax exemption. On June 20, , the bill was withdrawn. 

 

S-1657 (Van Drew) Authorizes property tax deferment for deployed military personnel.  On May 20, the bill was released from the Senate Community and Urban Affairs Committee and is awaiting Senate vote.

 

Workers’ Compensation

A-4014 (Rumana) Concerns proof of workers' compensation coverage with certain legally required annual reports of employers. On June 20, the bill passed the Assembly (75-0-0).