May 6, 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 learn more, visit njsba.com.
NJSBA RECENT ACTION IN TRENTON
A-1521 (Burzichelli) (NJSBA supports) Modifies the process for contested case hearings by the Office of Administrative Law (OAL) regarding telephone and video conferences, delegation of final decision authority, oral decisions, checklist decisions, electronic filings, and settlements. On April 29, the bill passed in the Assembly (73-1-0).
The NJSBA’s Board of Trustees, Legislative Committee, Elder and Disability Law Section, and Administrative Law Section voted to support this legislation with amendments, believing it encourages the empowerment of administrative law judges (ALJ) with authority to render a final decision, pursuant to the Administrative Procedures Act (APA). The NJSBA has stated it can no longer 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. The state bar feels this is currently the situation for attorneys who practice before the OAL, and it limits an attorney’s ability to fully and properly represent and counsel their clients.
The amendments made to the bill in the Assembly further the purposes of the bill by limiting those instances where agency heads can still retain final decision-making authority.
Family Law/Lesbian, Gay, Bisexual and Transgender Rights
S-2151 (Scutari) Strengthens the enforceability of premarital and pre-civil union agreements. On April 29, the bill passed the Assembly despite an effort by the NJSBA Family Law Section, represented by Chair-elect Brian Schwartz and Second Vice Chair Amanda Trigg, to have the proposal modified. (61-12-1).
The NJSBA’s Board of Trustees; Legislative Committee; Family Law Section; and Gay, Lesbian, Bisexual and Transgender Rights Section voted to oppose this legislation, believing it provides an overhaul of New Jersey matrimonial and contract law that has been thoughtfully developed over the last 50 years. First, the NJSBA feels the legislative findings, which 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 disclosure 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 the required disclosure occurred. The New Jersey statute also incorporated elements of a uniform law that are vital to citizens, given the fact that people 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. The state bar believes this new proposed bill is contrary to all of the safeguards that were put in place.
Finally, the NJSBA believes this bill alters contract law in New Jersey by determining that a premarital or pre-civil union agreement must be "more than unconscionable" to fail. It is difficult enough for a court to quantify what is "unconscionable" without now requiring they discern what is "more than unconscionable." Thus, the state bar feels the likely impact of this legislation will be to create more litigation, rather than less. Further while an agreement may actually be unconscionable when signed, that is usually not the case, since most parties have the ability and belief that they can live with the terms of an agreement, and do not enter into agreements they know they cannot live with. The state bar association feels to link failure of an agreement on both pre- and post-agreement unconscionability will terribly prejudice one of the parties.
The NJSBA also feels there is 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, and the onus will now fall upon the state to support a spouse stripped of support or protections of a pre-marital agreement.
The state bar believes the problems with this legislation can be cured by making it fair to both parties. 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 might occur. Under the current bill, the bread winner 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.
Local Government Law
A-3598 (Gusciora) (NJSBA supports) Establishes a conditional dismissal program in municipal court. On April 29, the bill passed in the Assembly (76-0-1).
The NJSBA’s Board of Trustees, Legislative Committee and Municipal Court Practice Section voted to support this legislation, believing it will fix a longstanding inequity in the municipal court system. Presently, pre-trial intervention (PTI) is only allowed for indictable offenses. Therefore, for example, if an individual is charged with theft over $500 he or she qualifies for PTI, which allows the individual to be diverted from the criminal system before conviction. However, if the theft charge is less than $500 the individual does not qualify for PTI because it is not indictable. In some instances, such as in the case of public employees, acceptance into PTI can preserve employment, while a conviction would mean the loss of employment. Thus, the NJSBA strongly supports creating an alternative, such as conditional discharge, to address these circumstances.
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 a 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.
Professional Responsibility and Unlawful Practice
A-2512 (NJSBA supports) Prohibits notaries public from falsely representing themselves as attorneys in advertisements. On April 29, the bill passed in the Assembly (76-0-0).
The New Jersey State Bar Association Board of Trustees and Legislative Committee voted to support this legislation, believing that someone who practices law or falsely represents that they are someone who practices law with a license in the state of New Jersey is committing a crime to the fourth degree.