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

Capitol Report

November 14, 2011

This is a status report on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers. The report may also include information about appearances of NJSBA representatives before legislative committees, and the involvement of the NJSBA as amicus in appellate court matters. The government affairs department of the association compiles the report. Following each bill number is the sponsor’s name, the NJSBA position, if any, bill description and status. Full and previous versions of the Capitol Report with links to related text are available online at www.njsba.com.

Regulatory Matters

Below please find proposed regulations with a deadline for comment of Jan. 6, 2012, unless otherwise noted:

CONSUMER PROTECTION

N.J.A.C. 13:45A-31.4 Proposes amendment to Division of Consumer Affairs rules that would require a towing company list the services provided as part of a private property tow or other non-consensual tow, and does not affect the charges for those services. A "basic tow" is defined in N.J.A.C. 13:45A-31.2 to include a bundle of specified towing services. N.J.A.C. 13:45A-31.4 permits a towing company engaged in non-consensual towing to charge a fee only for specific services, one of which is a basic tow. The Division of Consumer Affairs has received several complaints from consumers regarding bills received for towing services. Specifically, the bills did not explain the services provided to consumers as part of the basic tow, and consumers were not clear as to what services were actually provided as part of the basic tow. In order to ensure that a bill presented by a towing company is as clear as possible, the division proposes an amendment to N.J.A.C. 13:45A-31.4, to require that a bill provided to a consumer list all services provided as part of a private property tow or other non-consensual tow, and that the bill list the services actually provided as part of the basic tow.

CRIMINAL LAW

N.J.A.C. 10A:3-5.7 and 10A:18-8.6 (PDF) Proposes amendments to Department of Corrections rules regarding strip searches and legal telephone calls. N.J.S.A. 52:27EE-26 transferred the functions of the corrections ombudsperson in the Department of the Public Advocate to the corrections ombudsperson in, but not of, the Department of the Treasury, after the Department of the Public Advocate was abolished, pursuant to N.J.S.A. 52:27EE-86. In light of this transfer, the Department of Corrections is proposing a technical change to amend the existing rules to be consistent with the newly enacted provisions of N.J.S.A. 52:27EE-26.

ELDER AND DISABILITY LAW

N.J.A.C 8:89 Proposes new Department of Health and Senior Services rules under the Division of Aging and Community Services in the Senior Services and Health Systems Branch to implement the Adult Protective Services Act. The act would set forth the standards and establish a framework for administration of the Statewide Adult Protective Services Program to help abused, neglected and exploited adults who reside in community settings and are unable to protect themselves.

GOVERNMENT AND PUBLIC SECTOR

N.J.A.C. 4A:2-2.3 and 2.5 and 4A:4-2.11 (PDF) Proposes amendments to Civil Service Commission rules concerning appeals, discipline, and separations for persons hired under the New Jersey First Act. The act requires all public employees appointed on or after Sept. 1, 2011, to be New Jersey residents. While nonresident individuals employed prior to the effective date of the New Jersey First Act would not be subject to the law, should a nonresident employee sustain a break in public service of more than seven days, he or she would be subject to the law. A public hearing concerning the proposal is scheduled for Nov. 22 in Trenton. For more information, call Elizabeth Rosenthal at 609-984-7140.

N.J.A.C. 4A:3-3.7 and 4.5 (PDF) Proposes amendments to Civil Service Commission “trainee titles” rules by renaming the rules “trainee, apprentice, recruit and intern titles,” and codify existing standards and procedures for the advancement to the primary title of employees serving in apprentice, recruit, and intern titles, in addition to trainee titles, in both state and local service. A public hearing concerning the proposal is scheduled for Nov. 22 in Trenton. For more information, call Elizabeth Rosenthal at 609-984-7140.

LABOR AND EMPLOYMENT LAW

N.J.A.C. 12:60-2.1 and 12:62-1.2 Proposes amendments to Labor and Workforce Development, Division of Wage and Hour Compliance, rules to amend the definition of “public work” as used in the New Jersey Prevailing Wage Act to include construction, reconstruction, demolition, alteration, custom fabrication or repair work, done on any property or premises, whether or not the work is paid for from public funds, if, at the time of entering the contract, “the property or premises is owned by the public body.” This amendment will ensure that the statute and rules are consistent.

Amicus Matters

Gere v. Louis, Supreme Court Docket No. 66,926 – This case questions whether the plaintiff’s legal malpractice claim is barred under Puder v. Buechel, 183 N.J. 428 (2005), where the plaintiff resolved a property dispute with her former spouse by entering into a settlement agreement that included a reservation of rights to sue her former attorney. On Nov. 7, Christopher J. Carey presented oral argument before the Supreme Court on behalf of the NJSBA. The NJSBA argued that, pursuant to Puder, the suit is barred as a result of the settlement agreement.

Segal v. Lynch and Schofel, Supreme Court Docket No. 67,683 – This case questions whether a parenting coordinator, who also is an attorney, may be awarded fees for time spent responding to plaintiff’s motions and subpoenas, and to grievances against the coordinator under the Parenting Coordinator Pilot Program implementation guidelines. On Nov. 4, the Supreme Court granted the NJSBA’s motion for leave to participate as amicus curiae in the case. Bonnie C. Frost, Ronald G. Lieberman and Andrea Beth White drafted the NJSBA amicus brief, which argued that trial judges should retain the discretion to award fees to court-appointed parenting coordinators to respond to grievances filed against them.

Prime Accounting Dept. v. Township of Carney’s Point, Supreme Court Docket No. 68,380 – This case questions whether a taxpayer, to avoid dismissal for lack of standing, should be permitted to amend a complaint challenging a tax assessment to name the taxpayer as the sole plaintiff where the original complaint did not correctly identify the taxpayer and instead named a former tenant's accounting department, which never owned or leased the property but was listed on the municipal tax bill. On Nov. 4, the Supreme Court granted certification. The NJSBA participated in the matter in the Appellate Division and submitted a brief, drafted by Susan A. Feeney and Daniel P. Zazzali, urging the Court to accept certification to reverse the Appellate Division and permit taxpayers to rely on information in municipal tax lists when filing assessment challenges.

Note: "Under review by the NJSBA" means that the bill is currently being examined by NJSBA sections, committees and/or Board of Trustees and a final position has not yet been reached on the measure.