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

Capitol Report

September 29, 2014

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 learn more, visit njsba.com

NJSBA ACTIVITY IN TRENTON 

The age at which judges should be required to retire under the state constitution was open for debate again last week in Trenton, as the Assembly Judiciary Committee considered a number of bills that would potentially affect Supreme Court, superior court, administrative law, tax court and workers’ compensation judges, as well as county prosecutors. Ultimately, the committee released a number of committee substitutes that would make changes to the relevant statutes and propose a constitutional amendment to raise the mandatory retirement age to 75 for all but Supreme Court justices. NJSBA First Vice President Thomas H. Prol, of Laddey, Clark & Ryan, LLP, offered the association’s general support of the proposals in testimony before the committee. He noted the measures would not only be cost effective, but would allow the judicial system to benefit from the knowledge and experience judges have gained during their tenure on the bench. He also questioned whether the proposals would have any impact on the number of current judicial vacancies, as statistics show that judges are retiring even before the current mandatory age of 70, in part due to the recent healthcare and pension changes. The measures now await Assembly vote.

The Uniform Trust Code also received favorable action last week by the Assembly Judiciary Committee. The association assisted in crafting A-2915, which is sponsored by Assemblymen Joseph A. Lagana and John F. McKeon, and has been actively seeking to obtain passage of the legislation. Glenn Henkel, of Kulzer & DiPadova, PA, testified on behalf of the NJSBA before the committee in support of the bill. Amendments were added to the bill to provide for the use of directed trusts, as well. In a statement distributed to committee members, the association noted that the measure is important because it will provide concise, flexible and easily accessible rules concerning the use of trusts in New Jersey. Currently, without a comprehensive trust code in New Jersey, there is only minimal statutory and case law to guide attorneys, trustees, beneficiaries and others in the interpretation of trusts and execution of the responsibilities associated therein. The uniform code, already adopted in many other states, is expected to help eliminate many disputes or ambiguities that currently arise in connection with the creation and administration of a trust. Furthermore, the directed trust provisions, previously embodied in a separate bill also sponsored by Assemblymen Lagana and McKeon (A-2914), will also provide clarity to donors, benefit financial institutions, and help reduce trust management fees. The amended bill was released from the Assembly Judiciary Committee and is awaiting Assembly vote. 

Another bill being monitored by the association, which was previously pocket vetoed by the governor, was once again considered by the Assembly Agriculture and Natural Resources Committee. The association has expressed concerns about the potentially broad consequences of A-2389, sponsored by Assemblyman Troy Singleton. The bill would impose a lifetime ban on employment for animal cruelty violators in a wide range of employment settings. It would also eliminate the court’s discretion in imposing sentences on such violators that are appropriate to their specific violation. This bill was released from the committee with amendments and is awaiting Assembly vote. The NJSBA continues to monitor the measure. 

For more information about a bill or a bill status, please visit the Legislature’s website, njleg.state.nj.us.org.

NJSBA AMICUS ACTIVITY

Last week, the New Jersey State Bar Association participated in oral argument in State v. Revie, where the Court is considering whether a defendant, who is convicted of a third offense of driving while intoxicated (DWI) more than 10 years after his second DWI conviction, is entitled to a second step-down in sentencing after having already received one for his second DWI. Jeffrey Evan Gold, of Gold and Associates, presented argument on behalf of the association. He argued that the Appellate Division had misinterpreted the plain language of the “step-down” provision provided by statute, and held that only one step-down was permitted, instead of two. He further argued that the Court’s holding in State v. Laurick should apply to provide the defendant in this case with relief from the custodial portions of a third-offender sentence, since one of the defendant’s previous DWI convictions occurred without counsel. The Court took the arguments under advisement.

The Supreme Court also issued its decision last week in the matrimonial case of Maeker v. Ross. At issue in that matter was whether the Legislature had intended a recent amendment to the statute of frauds requiring palimony agreements to be in writing to apply to oral palimony agreements that predated the amendment. Brian M. Schwartz, of the Law Office of Brian Schwartz, had presented oral argument on behalf of the association, and co-authored the brief submitted by the association with Brian G. Paul, of Szaferman, Lakind, Blumstein & Blader, PC, and Elizabeth M. Vinhal, of the Law Office of Brian Schwartz. The NJSBA argued that the amendment should not be applied retroactively. The Court agreed, holding that the Legislature did not intend for such application. The Court did not decide, however, whether equitable forms of relief would still be available to such claims, as the NJSBA had also urged. It saved that determination for another day.

The NJSBA’s argument in an Appellate Division matter, Conley v. Guerrero, will be considered by the Court, as the association’s application for amicus curiae status in the case has been granted. The Court will consider whether actual notice of a termination notice sent by fax or e-mail in a real estate transaction satisfies the required contractual clause mandating such notices be sent by certified mail, telegram or personal delivery. Stuart J. Lieberman, of Lieberman & Blecher, PC; F. Bradford Batcha, of Batcha & Batcha, LLC; and Heather G. Suarez, of Walder Hayden, P.A., drafted the NJSBA’s submission in the matter. The association is urging the court to conclude that actual knowledge should prevail over any technical mechanical deficiencies in the transmission or a termination notice and suggesting that consideration be given to revisiting the transmission requirements currently mandated in real estate contracts in light of the technological advancements since the requirements were put in place.

COURT NOTICES

The Supreme Court has requested comments about proposed fee increases pursuant to a recently enacted bail reform bill, which, among other things, authorizes the Judiciary to revise fees for certain legal programs and services. Comments are sought from the bar before Oct. 15. 

Under the new law, the authorized fee increases are limited to no more than $50 per fee. The proceeds from the increases are to be used solely as follows:

-           $22 million appropriated annually to the Judiciary to be used to fund the development, maintenance and administration of a statewide pretrial services program;

-      $10 million appropriated annually to the Judiciary to be used to fund the development, maintenance and administration of a statewide digital e-court information system;

-           $10.1 million appropriated annually to Legal Services of New Jersey and its affiliates; and

-           any amount remaining shall be retained by the Judiciary for the purpose of developing, maintaining, and administering the pretrial services program or for court information technology.

To read the full notice to the bar and access the proposed fee increases, visit njcourts.com.

 

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