November 11, 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 find out more, visit njsba.com.
NJSBA LAME DUCK PRIORITY LEGISLATION
Below is a continuation of a list of legislation the New Jersey State Bar Association has taken a position on, and which may be considered in the post-election (lame duck) session that began last week.
A-1551 (Wisniewski) Adverse Possession Statute Revisions: This bill concerns the time frames for establishing or enforcing property rights related to adverse possession. On May 9, the bill was received in the Senate and referred to the Senate Judiciary Committee.
The New Jersey State Bar Association Board of Trustees, Legislative Committee and Real Property, Trust and Estate Law Section all voted to support this legislation to eliminate longstanding confusion in the law about the requirements for title to vest through adverse possession. Currently, New Jersey’s adverse possession law allows an adverse possessor to acquire title to land after 30 years of uninterrupted possession of the property, or 60 years for woodlands or uncultivated land. However, New Jersey has a 20-year statute of limitations applicable to actions concerning real property, such as an action to recover possession of property by a record owner. Courts have generally allowed title to vest after 20 years of adverse possession. More recently, however, the New Jersey Supreme Court, in J&M Land Company v. First Union National Bank, held that an adverse possessor does not acquire title after 20 years, although an adverse possessor may defeat an action by a record owner to recover possession.
This bill, therefore, was developed to clarify that title in land vests after 20 years of adverse possession in most cases, and 30 years for woodlands and uncultivated land. The positive impact of the bill includes encouraging the productive and diligent use of land in New Jersey to prevent barren wasteland, ensuring the New Jersey adverse possession statute is in compliance with other states’ adverse possession laws and promoting appropriate title transfer.
A-1848 (Diegnan) Imposes limits on fees charged for discovery in municipal court matters. On Oct. 25, 2012, the bill was received in the Senate and referred to the Senate Judiciary Committee.
The NJSBA Board of Trustees, Legislative Committee, Criminal Law Section, Consumer Protection Law Committee, and Municipal Court Practice Section voted to support this legislation based upon statewide findings that problems exist with disparate municipal discovery costs.
The fees for discovery in municipal court are not universal and can vary greatly throughout the state, ranging from $10 in some municipalities for basic paper discovery to $100 in others for the duplicating of videotapes. The NJSBA is concerned that this arbitrary discovery fee setting interferes with the administration of justice in New Jersey’s municipal courts because clients are discouraged from advancing claims due to the costs associated with preparing a defense. Further, the cost of justice should not be dependent upon the municipality in which one receives a summons.
Accordingly, the NJSBA believes there should be uniform standards for municipalities to follow in setting municipal court discovery fees, such as in the cities of Newark and Lakewood, which track the New Jersey Right to Know Law. That law establishes copying charges of $.75 per page for the first 10 pages; $.50 per page for the next 10 pages; and $.25 per page thereafter. The NJSBA supports this fee schedule, but acknowledges there is no specific authority on the subject.
This bill seeks to establish that authority by supplementing the Open Public Records Act. That legislation retained authority for determining discovery fees within the executive branch of government. A-1848 would supplement the act by limiting discovery fee charges to the fees established for other government documents.
The NJSBA believes justice demands that municipalities not be permitted to impose fees in excess of what is fair and reasonable, and that defendants not be saddled with arbitrary fees. The Legislature has already determined fair and reasonable fees for state government public records. Therefore, the state bar believes there is no reason why such fees should not also extend to municipalities. This is the goal A-1848 seeks to accomplish.
SJR-41 (Singer)/SJR-34 (Scutari)/AJR-32-36 (Kean) Creates a commission to study alimony/; creates the Blue Ribbon Commission to Study Alimony Reform. On July 26, 2012, the bill was transferred to the Senate Judiciary Committee.
The NJSBA Board of Trustees and Family Law Section voted to support this joint resolution as amended because it provides for a survey of New Jersey’s present alimony statutes, a charge which is not predisposed to a set final outcome, and a more balanced commission membership to achieve these goals.
S-2207/S-2062/S-3002 (Sweeney)/A-763/A-3308 (Barnes) Authorizes the Judiciary to revise and supplement court filing fees, subject to limitations to fund e-court information system and Legal Services of New Jersey (LSNJ), and further requires review and reporting on fees and expenditures of such fees. On June 10, the bill was released from the Assembly Judiciary Committee with amendments and referred to the Assembly Budget Committee.
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 voted to support this legislation because the breadth of the fee increases have been reduced from previous proposals, 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 come directly from the general treasury, and urges that future funding increases be paid for in this manner. However, the NJSBA understands the difficult economic circumstances facing the state of 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 also contains safeguards to assure 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 to make certain the increases remain tied to economic circumstances. These safeguards have made this a stronger piece of legislation.
A-1521 (Burzichelli)/S-2555 (Van Drew) 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 decision, electronic filings, and settlements.
On May 9, the bill was received in the Senate and referred to the Senate State Government, Wagering, Tourism and Historic Preservation Committee.
The NJSBA’s Board of Trustees, Legislative Committee, Elder and Disability Law Section, and Administrative Law Section voted to strongly support empowering administrative law judges (ALJ) with authority to render a final decision, pursuant to the Administrative Procedures Act (APA). The state bar believes it can no longer support 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 state bar believes it unfairly limits an attorney’s ability to fully and properly represent and counsel clients.
S-761 (Scutari)/A-788 (Munoz)/A-801 (Munoz) Restricts access to motor vehicle accident reports under certain circumstances. On Oct. 25, 2012, the bill was received in the Senate without committee references and is awaiting the Senate vote.
The NJSBA Board of Trustees and its Ad Hoc Committee on Direct Solicitation voted to support this legislation as amended because it offers a balanced approach to addressing problems associated with insurance fraud and direct solicitation of clients involved in motor vehicle accidents by attorneys. The NJSBA has long been concerned about the practice of attorneys purchasing addresses from data-mining services and distributing solicitations via mass mailings. This legislation will help to eliminate this practice. The NJSBA would also support an extension of the bill to cover traffic summonses issued by law enforcement officers.
S-2427 (Scutari) / A-3835 (Stender) Revises the penalties for certain drunk driving offenses, including mandating installation of an ignition interlock device, and creates restricted use driver's license. On June 27, the bill was received in the Assembly and referred to the Assembly Judiciary Committee.
The NJSBA’s Board of Trustees, Legislative Committee and Municipal Court Practice Section voted to support this legislation because the interlock law, as it now stands, has created confusion and consternation among the bench, bar and public. It currently requires an interlock during suspension. The NJSBA’s position on the original law was that it is not rational unless related to a work license. This amendment would cure what the state bar believes are the two problem areas of the law: 1) the requirement that an interlock must be installed even though the defendant’s license is suspended, and 2) the application of the law to vehicles a defendant does not own. This amendment imposes the interlock only after suspension and only upon vehicles owned or leased by the defendant.
A-3909 (Mainor) /S-2750 (Cunningham) Revises alimony laws, including eliminating permanent alimony and establishing guidelines for the amount and duration of alimony awards. On May 13, the bill was introduced and referred to the Senate Judiciary Committee.
The NJSBA’s Board of Trustees, Judicial Administration Committee and Family Law Section all voted to oppose this legislation, believing it fails to recognize the reality that each divorce case is unique, and further, it eliminates the discretion of the court to ensure a fair and equitable resolution by taking into account the distinct facts of each individual case. Additionally, the bill provides for a complete overhaul of New Jersey’s existing alimony law when proposing an alimony award. The bill would mandate the implementation of a generic formula, which, in essence, would fix the alimony amount and duration without any consideration, of any kind, for the majority of the essential statutory factors (i.e., age of the parties, health of the parties, absence from the job market, etc.) that justly weigh on a determination of alimony under the present law.
The state bar believes that when providing an alimony award, there are many factors to consider, such as whether the parties have children, the ages of the children, career sacrifices made by one party for the benefit of the family, the equal distribution of property, domestic history, etc. The fact that parties in one marriage earn the same income and have been married for the same length of time as parties in another marriage, does not mean the parties in both marriages should be considered the same, or even comparable for the purposes of determining alimony. Each individual marriage creates a unique factual situation, and each warrants a unique analysis with regard to alimony. The inevitable result of the eradication of fact-based analysis in each case is inequity, and unfair to divorcing parties.
The NJSBA believes alimony awards cannot be uniform when the facts and circumstances of divorcing couples in each case are not identical, and it is illogical to promote predictability while sacrificing fairness and equity. Due to this fact, matrimonial matters filed in New Jersey courts are filed not in the Law Division, but rather the Chancery Division, which also includes courts of general equity. The state bar believes each individual party should rely on the specific factors currently enumerated in the law to ensure alimony awards are fair and equitable, and that the proposed guidelines are not based on empirical data or statistical research and are unfair to the parties.
S-1388 (Scutari)/A-685 (Kean, S.) Provides for modification of child support and certain alimony payments due to changed circumstances. On Feb. 16, 2012, the bill was referred to the Senate Budget and Appropriations Committee.
The NJSBA Board of Trustees, Legislative Committee and Family Law Section all voted to oppose this legislation. While the NJSBA agrees with the concept of the bill, the state bar takes issue with the fact that, as written, it would permit a modification based on temporary disability. The state bar believes the six-month time frame contained in this bill is too short. People entering into agreements would know they could try to modify their obligations after six months.
The NJSBA is concerned that the bill would change the law concerning limited duration alimony and is unclear about whether or not the “unusual circumstances” standard required to convert a term alimony award to permanent alimony still applies as set forth in Gordon v. Rozenwald, 380 N.J. Super 55 (App. Div. 2005). The NJSBA has drafted amendments which, if adopted, would address these concerns.