May 27, 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.
P.L. 2013, c. 38. Authorizes release of sex offender registration information to the Department of Human Services and county welfare agencies.
P.L. 2013, c. 39. Prohibits minors under 14 years of age from using spray tanning in tanning facilities and prohibits minors under 17 years of age from using tanning beds.
P.L. 2013, c. 40. Allows certain business combinations between resident domestic corporations and interested stockholders.
The NJSBA Board of Trustees, Legislative Committee and Business Law Section voted to support this legislation, believing it provides flexibility in complying with the New Jersey Shareholder Protection Act.
P.L. 2013, c. 41. Allows corporate shareholder meeting participation by remote communication and clarifies remedies for dissenting shareholders.
The NJSBA Board of Trustees, Legislative Committee and Business Law Section voted to support this legislation, believing it modernizes New Jersey to expand shareholder participation and also clarifies the rights of dissenting shareholders.
P.L. 2013, c. 42. Revises the law concerning derivative proceedings and shareholder class actions.
The New Jersey State Bar Association’s Board of Trustees, Legislative Committee and Business Law Section all support this legislation, believing would bring clarity to the current law and that the dollar amount increase has been long overdue.
P.L. 2013, c. 43. Revises certain provisions of the farmland assessment law.
P.L. 2013, c. 44. Establishes the Anti-Big Brother Act.
P.L. 2013, c. 45. Creates the New Jersey Supplemental Nutrition Assistance Program Employment and Training Provider Demonstration Project Act.
P.L. 2013, c. 46. Creates the Opioid Antidote and Overdose Prevention Act.
P.L. 2013, c. 47. Establishes a process for renewal of Department of Education-issued authorization of certified educational facilities manager.
P.L. 2013, c. 48. Permits the chief administrator of the Motor Vehicle Commission to waive the commercial drivers license skills test for certain applicants with military experience operating commercial motor vehicles.
P.L. 2013, c. 49. Requires professional boards to provide credits toward requirements for licensure for veterans with substantially equivalent training.
P.L. 2013, c. 50. Requires health benefits coverage for refills of prescription eye drops under certain conditions.
P.L. 2013, c. 51. Creates the Human Trafficking Prevention, Protection, and Treatment Act.
P.L. 2013, c. 52. Requires school districts provide pupil directory information to county vocational schools upon request.
P.L. 2013, c. 53. Requires a homeowners insurance consumer information brochure to contain a one-page policy summary.
P.L. 2013, c. 54. Permits cancellation of municipal charges and fees under $10.
P.L.2013, c. 55. Clarifies a trustee’s discretionary authority concerning income tax liability.
The NJSBA Board of Trustees; Legislative Committee; and Real Property, Trust and Estate Law Section developed this legislation, which provides that existing law is inapplicable to trusts where the creator retains no beneficial interest in the trust, but that the trustee has discretionary authority to either reimburse the trust creator for income tax liability in the trust assets or pay taxes directly to the taxing authority on behalf of the trust creator. This provision is modeled after New York statute EPTL 7-3.1(d).
The NJSBA believes this is pro-New Jersey legislation, since it will provide citizens with estate-planning tax benefits while allowing New Jersey banks, which often manage trusts, more business in this regard. Presently, the neighboring states of Delaware and New York are receiving this business. Florida, where many New Jerseyans have a nexus, and Arizona have also enacted the changes sought here. Stated another way, the NJSBA believes the elimination of interstate mobility of trust domicile to Delaware, New York and Florida in order to obtain necessary protection and the establishment of those trusts in New Jersey is clearly in the best interests of the state and provided a compelling basis for the enactment of the legislation.
P.L. 2013, c. 56. Concerns dissolution of free public libraries.
P.L. 2013, c. 57. Permits mayors to appoint municipal emergency management coordinators from among residents of municipalities subject to a shared services agreement.
P.L. 2013, c. 58. Establishes Lieutenant Scott Jenkins’ Law; creates certain new criminal offenses aimed at theft from cargo carriers; amends theft statutes.
P.L. 2013, c. 59. Creates the School Bond Validating Act.
NJSBA RECENT ACTION IN TRENTON
A-2379 (Johnson) Establishes crimes of dog fighting and leader of a dog-fighting network; amends the Racketeer Influenced and Corrupt Organization Act (RICO) to add leader of a dog-fighting network. On May 20, 2013, the bill passed in the Assembly (78-0-0).
The NJSBA Board of Trustees, Legislative Committee and Animal Law Committee all voted to support this legislation as amended, believing it will strengthen animal protection laws, provide additional means with which prosecutors may pursue perpetrators and assist attorneys who represent clients and animal organizations with the victims of animal cruelty.
The NJSBA feels passage of A-2379 will be critical in providing the means with which to improve the welfare of both animals and humans affected by animal fighting and aid in punishing the perpetrators of this criminal enterprise. Animal fighting and baiting is closely connected to other crimes, including illegal drugs and weapons, gambling, aggravated assaults and gang violence. This bill allows prosecutors to use the RICO Act to aid in pursuing additional charges to animal fighting, and thus better protect the victims of these criminal acts.
A-4023 (Burzichelli) Makes certain technical corrections to the Revised Uniform Limited Liability Company Act. On May 6, 2013, the bill was released from the Assembly Regulatory Oversight and Gaming Committee and is awaiting Assembly vote.
The NJSBA Board of Trustees, Legislative Committee and Business Law Section strongly support this legislation, believing these changes are essential to make certain the provisions within the law are well understood and implementation is seamless. At this time, the state bar does not believe it is appropriate to consider further substantive changes to the legislation, which should be reviewed and evaluated in due course in consultation with all interested parties, including the New Jersey Law Revision Commission and the business community.
Consumer Protection Law
A-3718 (Diegnan) Permits real estate licensees to prepare broker price opinions and comparative market analyses. On May 20, 2013, the bill was amended on the Assembly floor and is awaiting Assembly voice vote.
The NJSBA Board of Trustees, Legislative Committee and Consumer Protection Law Committee all vote to 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. State bar support is based on the fact that in New Jersey homeowners have relied upon such persons 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.
S-2151 (Scutari) (NJSBA opposes) Strengthens the enforceability of premarital and pre-civil union agreements. On May 13, 2013, the bill passed in the Senate (34-1) and was sent to the governor.
The NJSBA’s Board of Trustees; Legislative Committee; Family Law Section; and Lesbian, Gay, Bisexual and Transgender Rights Section voted to oppose this legislation at this time because it provides an overhaul of New Jersey matrimonial and contract law that has been thoughtfully developed over the last 50 years. First, the state bar believes the legislative findings that presaged New Jersey's pre-nuptial statute are as important now as they were at its creation. This statute was based upon the holding in Marschall v. Marschall, which established specified criteria for the enforceability of prenuptial agreements. It came with the endorsement of the New Jersey Commission on Sex Discrimination in the Statutes. Full disclosure by the parties concerning their independent assets and financial status was mandated, and must include any and all items that might influence the other party’s decision concerning the ultimate fairness of the agreement.
To enforce the agreement in the future, the party seeking enforcement has the burden of proving that the required disclosure occurred. In addition, the New Jersey statute also incorporated elements of a uniform law that are vital to citizens, given the fact that individuals move from state to state. The layered protections of the statute acknowledge there frequently exists a significant imbalance of power and bargaining positions at the time of the execution of a prenuptial agreement. This new proposed bill, the NJSBA believes, is contrary to the safeguards that were put in place.
The bill also alters contract law in New Jersey by determining that a premarital or pre-civil union agreement must be "more than unconscionable" to fail. The NJSBA believes it is difficult enough for a court to quantify what is "unconscionable" without requiring it discern what is "more than unconscionable." Thus, the likely impact of this legislation will be to create more litigation, rather than less.
The state bar feels there is also an adverse impact on the state associated with removing the provisions that define unconscionability as an agreement that would leave someone destitute or seriously decrease the lifestyle of the dependent partner. The onus would fall upon the state to support a spouse stripped of support or protections of a pre-marital agreement.
The NJSBA’s amendment would allow for a court to intervene in even more limited circumstances than under present law—only when a substantial hardship to one of the parties occurs. The state bar believes this is important because under the current bill the breadwinner would be required to meet his or her obligations under the prenuptial agreement regardless of whether or not he or she could afford them. Current law requires the court take into account changes in circumstances affecting either party. The present proposal does not. Thus, the NJSBA believes its amendment protects the interests of both parties.
Municipal Court Practice
A-1844 (Diegnan) (NJSBA supports) Makes discretionary the suspension of a driver's license for a first offense of driving without motor vehicle liability insurance. On May 20, 2013, the bill was released from the Senate Transportation Committee with amendments and is awaiting Senate vote.
The NJSBA Board of Trustees, Legislative Committee and Municipal Court Practice Section voted to support this bill as amended, because 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. Additionally, it also provides that the court may reduce or eliminate the sentence if the person provides satisfactory proof of insurance at the time of the hearing.
Special Civil Part
A-3851 (Coughlin) (NJSBA no longer opposes as amended) Requires landlords to pay attorney's fees for successful tenants if a lease reserves the landlord the same right. On May 20, 2013, the bill was amended on the Assembly floor with NJSBA amendments and is awaiting Assembly voice vote.
The NJSBA Board of Trustee’s, Legislative Committee and Special Civil Part Committee all voted to oppose this legislation, believing 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 were the fault of the tenant or if the tenant cured the breach prior to the rendering of final judgment.
The NJSBA supports the adopted amendments, which attempt to broker a compromise between the current legislation by reducing the onerous nature of the legislation. Those amendments include eliminating the recovery of expenses, the language for allowing for attorney’s fees to be provided when a tenant cures a breach of a lease and the awarding of attorney fees in a cause of action if a landlord could not receive an award of attorney fees. The NJSBA believes this is a balanced approach.
A-3423 (Egan) (NJSBA opposes) Authorizes establishment through collective bargaining of alternative workers' compensation program and group self-insurance plans. On May 20, former Workers’ Compensation Section Chair Arthur Kravitz was present to express the NJSBA’s concerns to the Assembly Labor Committee. The bill was held, but the chair and bill sponsor, Assemblyman Joseph Egan, indicated it would again be considered by the committee.
The NJSBA Board of Trustee’s, Legislative Committee and Workers’ Compensation Section all voted to oppose this legislation, believing it is aimed to create a self-made system; however, a self-made system lacks a court or a judge to ensure the protection of both parties and to grant a fair resolution of dispute. Another advantage to having a court system conduct hearings is that witnesses can be presented and transcripts can be made available for both parties. Also, the bill does not compel both the claimant and the employer to obtain legal representation, potentially placing both parties at a disadvantage.
Further, the state bar feels the legislation is overly broad when it comes to whether or not New Jersey’s workers’ compensation law can be applied. It does not define how the self-insured entity does or does not differ from employers with insurance policies within this alternate system. Additionally, it does not address the costs of the alternate system as being derived from assessments on policy premiums.
The NJSBA believes this bill is a carve-out scheme, taking some claimants out of the present system and treating those individuals and employers differently, contrary to the intent of the present system of spreading the risk over as many claimants and employers as possible to enhance the economic integrity of the compensation system.
S-1778 (Greenstein) (NJSBA opposes) Creates the Thomas P. Canzanella Twenty First Century First Responders Protection Act; concerns workers' compensation for public safety workers. On May 13, 2013, the bill passed in the Senate (21-13) and on May 20, 2013, the bill was substituted for A-1196 (Stender), passed in the Assembly (53-19-4) and sent to the governor.
The NJSBA Board of Trustees, Legislative Committee and Workers’ Compensation Section all voted to oppose this legislation, believing the cost factors associated with it are unknown. While the NJSBA supports first responders and is sensitive to the potential risks they face, funding was first made available through other pieces of legislation, for example special legislation for 9/11 victims, and with this bill no such funding information has been forthcoming.
The legal burdens of proof and rebuttable presumptions are changed for the group of individuals defined in this bill. The workers' compensation statute and system already has defined burdens of proof that must be met with respect to all petitioners, which are fair and equal, so that a highly skilled workers' compensation bench may weigh all factors and reach a fair conclusion. The NJSBA believes this bill may upset such well-established procedures.
RECENT GUBERNATORIAL ACTION
S-1219 (Codey) Increases compensation for wrongful imprisonment. On March 21, 2013, the bill was substituted for A-1640 (Watson Coleman)/A-3066 (Watson Coleman), passed in the Assembly (52-22-2) and was sent to the governor. On May 9, 2013, the governor’s conditional veto was received in the Senate.
The New Jersey State Bar Association Board of Trustees, Legislative Committee and Criminal Law Section all voted to support this legislation with amendments, since there are cases where people are wrongfully imprisoned because of false evidence and other factors.
S-1303 (Kean) Revises penalties for animal cruelty, increasing the degree of certain offenses; designated as Patrick's Law. On May 20, 2013, the bill passed in the Assembly (76-0-0).
A-1271 (Coughlin) Allows corporation business tax credit and gross income tax credit for certain wages paid to qualified interns in tax years 2013 and 2014. On May 20, 2013, the bill passed in the Assembly (66-12-0).
A-3818 (Singleton) Clarifies that the Uniform Electronic Transactions Act applies to real estate transactions. On May 20, 2013, the bill passed in the Assembly (76-1-0).
A-3659 (Barnes)/S-2178 (Lesniak) Revises the definition of destructive device to include certain weapons of 50 caliber or greater. On May 5, 2013, the bill was released from the Senate Law and Public Safety Committee with amendments at the preliminary committee meeting and on May 13, 2013, the bill was amended on the Senate floor (21-0) and is awaiting Senate vote.
A-4039 (Bramnick) Revises various provisions of Megan's Law and enhances penalties for certain violations. On May 6, 2013, the bill was introduced and referred to the Assembly Law and Public Safety Committee.
S-2177 (Madden) Creates the New Jersey Security and Financial Empowerment Act to assist victims of domestic violence and sexual assault. On May 20, 2013, the bill was substituted for A-2919 (Fuentes), passed in the Assembly (77-0-0) and was sent to the governor.
S-2456 (Turner) Criminalizes the purchase or possession of firearms ammunition by persons convicted of certain crimes. On May 1, 2013, the bill was combined with S-2723 (Sweeney)/A-657 (Rumpf) and A-2465 (Conaway) at the preliminary committee meeting.
S-2163 (Lesniak) Concerns arbitration for certain non-teaching school staff. On May 20, 2013, the bill was substituted for A-3696 (Mosquera), passed in the Assembly (51-26-1) and was sent to the governor.
S-2177 Creates the New Jersey Security and Financial Empowerment Act to assist victims of domestic violence and sexual assault. On May 13, 2013, the bill passed in the Senate (38-0).
A-4101 (Wimberly)/S-2291 Eliminates the requirement that full-time students at an institution of higher education in New Jersey maintain health insurance coverage. On May 6, 2013, the bill was introduced and referred to the Assembly Higher Education Committee and on May 13, 2013, the bill passed in the Senate (33-0) and was sent to the governor.
A-1665 (Johnson)/S-1253 (Vitale) Revises statutory mental health coverage requirements and requires all health insurers and State Health Benefits Program (SHBP) to cover treatment for alcoholism and other substance-use disorders under the same terms and conditions as for other diseases or illnesses. On May 6, 2013, the bill was released from the Pension and Health Benefits Review Commission and referred to the Assembly Appropriations Committee.
Labor and Employment Law
A-4014 (Rumana) Concerns proof of workers' compensation coverage with certain legally required annual reports of employers. On May 6, 2013, the bill was released from the Assembly Regulatory Oversight and Gaming Committee and is awaiting Assembly vote.
Land Use Law
A-1851 (Diegnan) Refines certain review and approval responsibilities under the Municipal Land Use Law and the map filing law. On May 6, 2013, the bill was released from the Assembly Regulated Professions Committee with amendments and is awaiting 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, 2013, the bill passed in the Assembly (77-0-0).
Municipal Court Practice
S-69 (Codey) Increases the fine and imposes license suspension for talking or texting on hand-held device while driving. On May 13, 2013, the bill passed in the Senate (35-0) and was sent to the governor.
A-2878 (Burzichelli)/S-1915 (Sweeney)/S-1898 (O’Toole) Prohibits the requirement to disclose user name, password, or other means of accessing an account or service through electronic communications device by employers. On May 6, 2013, the governor’s conditional veto was received in the Assembly and on May 20, 2013, the bill passed in the Assembly (77-0-0).
Renewable Energy, Cleantech and Climate Change
A-1383 (Chivukula) Concerns energy efficiency and renewable energy requirements. On May 20, 2013, the bill was amended on the Assembly floor and is awaiting Assembly voice vote.
A-946 (Riley) Permits a farm income averaging credit under the New Jersey gross income tax. On May 13, 2013, the bill was released from the Assembly Agriculture and Natural Resources Committee and referred to the Assembly Appropriations Committee.
S-1657 (Van Drew) Authorizes property tax deferment for deployed military personnel. On May 20, 2013, the bill was released from the Senate Community and Urban Affairs Committee and is awaiting Senate vote.