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

Capitol Report

May 25, 2015

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.

Standing-Room-Only Crowd at NJSBA’s Inside Trenton Program

The NJSBA’s 2015 Annual Meeting was a success among the capitol crowd, drawing a number of legislators to speak on various topics important to the practice of law and the future of New Jersey. A featured legislative program—the Inside Trenton program—drew a standing-room-only crowd to hear about the legislative priorities of four key legislators. Senators Peter Barnes III and Linda Greenstein and Assemblymen Anthony Bucco and Michael Patrick Carroll presented a bipartisan report of their thoughts on priority legislation and the legislative process. Their insights ran the gamut from limiting the number of bills a legislator can introduce to how to pass legislation when in the minority party. The program was moderated by lobbyist William Maer of Public Strategies Impact.

The association welcomed a number of legislators who spoke on a variety of topics, including women breaking through the glass ceiling, medical marijuana, judicial independence, clean energy, dealing with abandoned property, and the gaming industry. In addition to the esteemed Inside Trenton panelists, Senate President Stephen Sweeney, Senator Kevin O’Toole, Senator Loretta Weinberg, Senator Bob Smith, Senator Raymond Lesniak, Senator Nicholas Scutari, Assemblyman Jon Bramnick, Assemblyman John Wisniewski, and Assemblyman Raj Mukherji participated in this year’s Annual Meeting.

NJSBA President Testifies at Court Rules Hearing

Miles S. Winder III, president of the NJSBA, last week addressed several proposed changes to court rules at a hearing in Trenton. The New Jersey Supreme Court’s annual rules hearing offered a public venue for members of the legal community and public to discuss the dozens of proposed changes to how business is conducted in the state’s courts. Winder called the hearing an “important practice that… allows a free and open exchange between the organized legal community, the public and the Court.”

Winder’s comments covered several topics, including urging the Court to maintain the current pre-trial intervention rules and guidelines; support the unified mental health service provider evidentiary privilege; maintain the bona fide office rule; and endorse the plan to amend a rule to allow municipal court judges to hear certain motions.

Amanda Trigg, chair of the association’s Family Law Section, addressed additional proposals related to family court matters and complementary dispute resolution issues, urging the Court to adopt changes “that will enhance efficiency and confidence in the court system.”

Additionally Robyn Gigl, the immediate past chair of the association’s Lesbian, Gay, Bisexual and Transgender Rights Section, urged the Court to collect additional demographic information about the attorneys licensed to practice in New Jersey. 

Measure Permitting Gestational Carrier Agreements Proceeds to Governor

The Gestational Carrier Agreement Act heads to the governor’s desk after passing the Assembly last week. Sponsored by Senator Joseph F. Vitale and Assemblywoman Valerie Vainieri Huttle, this legislation is a national model and the first of its kind in New Jersey. It authorizes certain gestational carrier agreements, codifies the process for implementation of gestational surrogacy agreements, and offers reimbursement of expenses that mirror what is permissible under the current adoption statute. Presently, there are no statutory protections for intended parents or gestational carriers in New Jersey, nor does the state law differentiate between genetic and non-genetic gestational carriers. 

This measure addresses both of those gaps in the current law. The association believes this bill offers a comprehensive legal framework for all parties involved prior to any agreed arrangement that will lead the parties to be educated about their rights and obligations. This will help alleviate confusion.

This legislation drew an absolute veto in the last session from the governor, who criticized the Legislature for not sufficiently studying the bill. The bill has since been amended.  

Legislation Criminalizing Dog Fighting and Amending RICO Clears Senate Hurdle

The Senate passed legislation, sponsored by Senator Thomas H. Kean, criminalizing dog fighting and amending the current Racketeer Influenced and Corrupt Organization (RICO) Act to include the leader of a dog-fighting network under its provisions. S-736 would increase convictions and fines for those who participate in dog-fighting activities by establishing dog fighting as a third-degree crime, punishable by three to five years in prison and up to a $15,000 fine. Those who lead a dog-fighting network would face a charge of a second-degree crime, punishable by five to 10 years in prison and up to a $150,000 fine.

The legislation also includes provisions to protect dog-fighting survivors. Those convicted could be mandated to pay restitution to cover the cost of housing and medical treatment for the animals harmed as a result of dog fighting. Any property relating to the criminal enterprise could also be seized and those convicted could be prohibited from having future custody of any animal.

The association supports this measure, believing the bill will strengthen animal protection laws and provide prosecutors with another statute that can be used to charge perpetrators.

Guardianship Bill Passes Senate

A measure expanding the materials provided for guardianship of a person receiving services from the Division of Developmental Disabilities to include the person’s individualized educational program (IEP) passed the Senate. Guardianship represents the transfer of an individual’s civil rights who cannot represent him or herself to another person, through legal proceedings, and should generally be considered as a last resort solution.

The association supports A-2936, sponsored by Assemblywoman Gabriela M. Mosquera, with the amendments proposed in the bill, as it will help ease the paperwork burden on families filing a guardianship application by allowing them to file documents already in their possession or documents that are easily obtainable in support of the application. The bill heads to the governor. 

NJSBA Asks Appellate Division to Affirm Holding Expanding Notice of Disapproval Modality in Real Estate Transactions

The association urged the Appellate Division to affirm a trial court decision holding that actual notice by way of oral communication within the three-day attorney review period sufficiently terminated a real estate contract. Arguing before the Appellate Division in Jersey City in the matter of Conley v. Guerrero, the NJSBA asked the court to dismiss the technically deficient termination of the real estate contract “because ‘form’ should not prevail over ‘substance.’” The association submitted an amicus curiae brief, authored by Stuart J. Lieberman, Heather G. Suarez, and F. Bradford Batcha. Batcha, of Batcha and Batcha, argued the matter on behalf of the association.

In Conley, after executing the initial contract of sale, the seller received additional, higher offers on the property. The seller’s attorney orally notified the buyer’s attorney that their offer was rejected within the three-day attorney review period and confirmed this rejection in an email and facsimile to the buyer’s attorney five days later. The buyer’s attorney argued that the rejection delivered orally was not compliant with the terms of N.J.A.C. 11:5-6.2(g)(2), which state that notice of disapproval must be made by mail, telegram or personal delivery within the three-day attorney review period.

This regulation was promulgated after a settlement agreement arising from the matter of NJSBA v. NJ Association of Realtor Boards, 93 N.J. 470 (1983). The NJSBA pointed out that this agreement, which predates email and other more current modes of communication, was designed to meet three objectives—the real estate contract was initially drafted by a real estate professional; even though drafted by a real estate professional, it was reviewed by a licensed New Jersey lawyer; and, that lawyer provided timely notice to the other party and the realtors that the contract had been rejected. It argued that those objectives had been met here, and therefore should not be voided because the rejection as “technically deficient.” “In other words, in the interest of consumer protection, the modality in which an attorney can terminate a real estate contract should be simple and not require burdensome means of delivery, such as certified mail, personal delivery, or a telegram.” 

The association further urged the court to overturn and/or amend N.J.A.C. 11:5-6.2(g)(2) to consider updated methods of communications, specifically electronic communications.

 

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