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

Capitol Report

September 24, 2012

 

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.

 

Special Edition

This special edition of the Capitol Report is the eighth of a series of reports summarizing the progress of NJSBA priority legislation since the beginning of the current legislative session.

 

PROFESSIONAL MALPRACTICE

A-1806 (PDF) (Conaway) (NJSBA opposes) Concerns liability, standards of care, and insurance coverage for medical malpractice actions. The NJSBA has serious concerns about this drastic revision to medical malpractice suits. Although the bill provides many useful changes (specifically Section 5 and Section 8 of the bill), the criminalization of certain aspects of affidavits of merit and expert testimony is likely to have a chilling effect on the ability of both plaintiff and defense attorneys to obtain responsible physicians to sign affidavits of merit and render expert opinions. The requirement that experts be New Jersey licensed professionals is unduly provincial and narrow. Frequently, the most objective opinions can be obtained from out-of-state professionals.

Status:
The bill is pending review in the Assembly Health and Senior Services Committee.

A-2553 (PDF) (Prieto) (NJSBA supports) (NJSBA-drafted) Focuses on professional malpractice reform; requires legal action against certain licensed persons to be brought within two years. New Jersey’s statute of limitations is substantially greater than those in New York, Connecticut, Pennsylvania, and Delaware. The current statute of limitations in N.J.S.A. 2A:14-1 applies to most professional malpractice and professional negligence claims, with the notable exception of claims for medical malpractice. There is a two-year statute of limitations for medical malpractice claims set forth in N.J.S.A. 2A:14-2. A reduction in the statute of limitations period will provide businesses offering professional services the ability to predict with greater certainty potential liabilities, and to plan for such liabilities.

Status:
This bill is pending review in the Assembly Judiciary Committee.

 

REAL PROPERTY TRUST AND ESTATE LAW

 

S-80 (PDF) (Bateman) (NJSBA supports) Establishes the Uniform Trust Code. This bill, based on the uniform state laws, is a precise and comprehensive guide on trust law questions. Greater use of trusts in recent years, both in family estate planning and in commercial transactions, has given rise to an increasing number of day-to-day questions involving trusts. This Uniform Trust Code provides clarity in areas of New Jersey trust law that are unclear and creates certainty by codifying areas where New Jersey trust law has gaps, while generally adhering to existing New Jersey trust case law.

Status:
The bill is pending review in the Senate Judiciary Committee.

S-493 (PDF) (Bucco) (NJSBA opposes) Provides for attachment of real property relating to terrorism. The NJSBA opposes this legislation, believing it is unnecessary and lacks due process protections for real property owners provided by the U.S. and New Jersey constitutions.

Status:
The bill is pending review in the Senate Judiciary Committee.

S-765 (PDF) (Scutari)/A-1086 (PDF) (Quijano) (NJSBA supports) (NJSBA-drafted) 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 to amend the existing provisions of N.J.S.A. 3B:11-1, so they would be renumbered as subparagraph (a) with the addition of a new paragraph (b). The proposed amendment would be declarative 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). This proposed amendment is revenue-neutral, and should be enacted both prospectively and retroactively.

Status: S-765 is awaiting vote in the Senate and A-1086 is pending review in the Assembly Judiciary Committee.

 

S-1213 (PDF) (Van Drew)/A-1591 (PDF) (Benson) (NJSBA opposes) Establishes a real property assessment demonstration program. The NJSBA opposes this legislation because of the significant injury the bill could do to attorneys and their clients who practice in the property tax field. The legislation would create an overlap between county tax board hearings in the demonstration county and the filing of appeals in the state tax court. The loss of statewide uniformity with regard to appeals filing deadlines and jurisdiction poses a significant problem. If this proposal was ever expanded on a statewide basis, practitioners would be dealing with county tax board appeals and the April 1 tax court filing deadline simultaneously. Under existing law, the county tax boards have the power to review and revise assessments between Jan. 10 and April 1. County tax boards that are truly concerned with certain ratables distorting a tax rate can already fix the problem before the tax rate is struck.

 

Status: Both bills are pending review in the Senate Budget and Appropriations Committee and Assembly Housing and Local Government Committee, respectively.

S-1621 (PDF) (Bucco) (NJSBA opposes) Establishes a process by which a fiduciary is discharged. The NJSBA opposes this bill because the language in the proposed new statute should be unambiguous so there is clarity and uniformity in practice.

Status:
The bill is pending review in the Senate Judiciary Committee.

A-1551 (Wisniewski) (NJSBA supports) (NJSBA-drafted) Revises New Jersey’s adverse possession law. The NJSBA drafted this legislation to eliminate longstanding confusion in the law by clarifying that title in land vests after 20 years of adverse possession in most cases, and 30 years for woodlands and uncultivated land.

Status
: The bill is now pending review in the Assembly Appropriations Committee

REGULATED PROFESSIONS

S-761 (PDF) (Scutari)/A-788 (PDF) (Munoz)/A-801 (PDF) (Munoz) (NJSBA supports) Bars direct solicitation letters from licensed professionals to accident victims and other persons. The NJSBA supports A-801, as amended on June 25, 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.

Status:
S-761 and A-801 are both awaiting Senate and Assembly vote. A-788 is currently pending review in the Assembly Judiciary Committee.