March 4, 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
Civil Trial Bar
A-101 (Handlin) (NJSBA supports) Creates a civil rape shield law. On Feb. 11, 2013, the bill was released from the Assembly Judiciary Committee with amendments and is awaiting Assembly vote.
The NJSBA supports the intent of this bill, recognizing the privacy of plaintiffs in these types of cases should be protected. If a person is claiming he or 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 does have some concerns with the legislation as drafted in its present form. The association is concerned with Section 1a, which 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, the court rules concerning discovery are broadly interpreted so parties are entitled to obtain information even though that information is not admissible at trial. Under this legislation a party apparently needs "specific" facts before even asking questions at a deposition, which may be an extremely difficult standard to meet in such cases. Furthermore, the phrase "discovery of information" could possibly implicate the 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 manner.
Also, 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 a year before the offense charged.
Nevertheless, 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 his or her personal life. Therefore, the association supports the legislation, although it would prefer that some attempt be made to amend it to respond to the concerns expressed above.
Elder and Disability Law
The NJSBA Board of Trustees, Legislative Committee and Elder Law Section all support the Continuing Care Retirement Community (CCRC) Bill of Rights, recognizing 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 what setting the resident is residing in. Currently, if someone is in the independent living section of a CCRC, the ombudsman would not be able to get involved 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 concerns.
A-321 (Dancer) (NJSBA opposes) Establishes a four-year pilot program in Ocean County for electronic monitoring of domestic violence offenders; appropriates $1 million; designated as Lisa's Law. On Feb. 14, 2013, the bill was substituted on the Assembly floor and is now waiting Assembly vote.
The NJSBA Board of Trustees, Legislative Committee, and Family Law Section voted to oppose 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. The association applauds the fact that the sponsor amended this legislation to make the bill applicable only to persons who have been convicted of a domestic violence offense. This eliminates constitutional questions about whether someone only accused of a violation must be subject to monitoring and reporting of his or her whereabouts. However, the NJSBA continues to have concerns regarding a lack of a funding mechanism to accomplish its goals. In addition, concerns have been raised about 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 with amendments) Establishes the New Jersey Task Force on Domestic Violence and Abuse. On Feb. 11, 2013, the bill was released from the Assembly Women and Children Committee with amendments and is awaiting Assembly vote.
The NJSBA Board of Trustees, Legislative Committee and Family Law Section all support the creation of the task force, provided at least one member is a licensed New Jersey attorney who routinely handles domestic violence matters.
A-732 (Eustace) (NJSBA supports) Makes it a crime of the third degree to practice psychology, chiropractic or state-certified psychoanalysis without the appropriate license or certification. On Feb. 14, 2013, the bill was amended on the Assembly floor and is awaiting Assembly vote.
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 it would protect vulnerable patients seeking treatment for very personal and emotional problems from unlicensed professionals who have the potential to inflict significant harm on such patients. However, the NJSBA respectfully requests the legislation be amended to exclude attorneys, clergy, and court mediation professionals from coverage under the bill.
A-581 (Spencer) (NJSBA supports) Authorizes the court to credit an indigent person with time served under certain circumstances. On Feb. 11, 2013, the bill was released from the Assembly Judiciary Committee with amendments and referred to the Assembly Appropriations Committee.
The NJSBA Board of Trustees, Legislative Committee and Judicial Administration Committee voted to support this bill because they believe it is appropriate to allow the person to be credited with time served if they are indigent and cannot afford to pay a fine. This is a particularly important issue given that New Jersey's prisons continue to be overcrowded.
A-798 (Munoz) (Under review by the NJSBA) Revises penalties for animal cruelty, increasing the degree of certain offenses; designated as Patrick's Law. On Feb. 21, 2013, the bill was substituted for S-1303 (Kean).
Civil Trial Bar
A-531 (DiMaio) Allows a commercial farmer to recover reasonable costs and attorney fees of defending against unreasonable complaints under the Right to Farm Act. On Feb. 11, 2013, the bill was released from the Assembly Agriculture and Natural Resources Committee with amendments and is awaiting Assembly vote.
S-2165 (Bateman) (Under review by the NJSBA) Clarifies that first aid, ambulance or rescue squads, as entities, have immunity from civil damages in certain circumstances. On Feb. 21, 2013, the bill was released from the Senate Law and Public Safety Committee with amendments and is awaiting Senate vote.