Capitol Report

February 26, 2024

State Senate Committee Hears Concerns Tax Lien Foreclosures in Light of Tyler v. Hennepin  

The New Jersey Senate Community and Urban Affairs Committee recently considered bills related to tax lien foreclosures, addressing the U.S. Supreme Court’s ruling in Tyler v. Hennepin County, MN, 143 S. Ct. 1369 (2023). The New Jersey State Bar Association is closely monitoring the bills.

One measure, S2334 (Stack), was up for discussion only. It would revise the process for property tax lien holders to foreclose the right to redeem a property tax lien and allows the property owner to protect the remaining equity. Consistent with the holding in Tyler, the bill would clarify that a lien holder that holds the tax sale certificate to a property may not keep the equity in the property beyond the amount owed for overdue taxes and interest. The Supreme Court held that such equity is property and withholding it from the property owner would be inconsistent with the takings clause in the Fifth Amendment of the federalConstitution.

Speakers cautioned that amendments were needed to protect property owners, and municipalities that rely on third party tax lienholders to fund the tax deficits to meet the municipal budget goals. Those third party tax lienholders – often investors who pay interest to hold the notes – also expressed concerns that limiting their recovery of premiums would discourage further investment, putting municipalities at risk of losing money.

Among the speakers was David Deerson, of Pacific Legal Foundation, who was on the team of attorneys who litigated the Tyler matter. Testifying in opposition to the bill, Deerson expressed concern about what he termed the “you snooze you lose” provision of the bill. Under the current version of the bill, a property owner who believes there is equity must file a claim to preserve that equity.

The Supreme Court Working Group on Tax Sale Foreclosures issued a report recently making recommendations to update Judiciary forms, amend legislative provisions relative to tax lien foreclosures, amend Court Rules relative to tax lien foreclosures and raised questions for further discussion on the issue. That report is available at njcourts.gov.

The bill was not up for a vote and remains pending in the Senate Community and Urban Affairs Committee.

LLC Disclosure Bill Passes Out of Senate Committee

Also on the agenda of the Senate Community and Urban Affairs Committee was S276 (Stack), which requires limited liability companies (LLCs) to disclose ownership information when submitting a deed for recording. The NJSBA expressed concerns with the bill because of the potential impact on privacy rights of the members of LLCs.

Amendments to the bill would require identification of each beneficial owner, instead of the registered agent of an LLC when it files a deed for recording. Additional identification from a beneficial owner would be required and the measure would expand a temporary exemption from a notice requirement to an additional class of LLCs. The NJSBA has not yet taken a position on the amendments to the bill, and will continue to monitor its movement.

February 19, 2024

As Affordable Housing Bill Advances, NJSBA Urges Further Amendments

The Assembly passed A4(Lopez), which reforms municipal responsibilities concerning affordable housing, abolishes the Council on Affordable Housing and appropriates funding to the newly established Affordable Housing Dispute Resolution program and to the Department of Community Affairs (DCA) to proceed with the fourth round of affordable housing obligations. The New Jersey State Bar Association remains neutral on the policy underpinnings of the bill but offered three amendments to clarify elements of the bill with respect to implementation and attorney’s fees.

The three recommended amendments address the following:

  • Amending language requiring a report by the DCA to foster immediate review and ultimate predictability for the presentment of a Housing Element and Fair Share Plan (HEFSP). The Assembly version that was passed extends the DCA from Aug. 1, 2024, to within seven months following the effective date of the bill, or Dec. 1, 2024, whichever is earlier.
  • Extending the timelines for the adoption of a HEFSP beyond the 75- and 90-day timelines. Municipalities would now have 180 days to file such plans under the amended bill.
  • Removing the prohibition placed on municipalities from extending any portion of trust funds on attorneys’ fees in specific instances.

The NJSBA has raised concerns that the deadlines in the initial bill are unrealistic. The DCA is charged with issuing a report on the fourth-round calculations by a date certain, but language following this mandate specifically disclaims the veracity of the data and methodology currently used to make these calculations. “The crux of the litigation over the constitutional obligations established under the Mount Laurel Doctrine dating back over 30 years is the failure to resolve the issue of appropriate data and methodology,” said the NJSBA in its letter to Sen. Troy Singleton and Assemblywoman Yvonne Lopez, prime sponsors of the bill.

“As a result, this bill directs the DCA to do what so far has not been resolved in the courts to date and sets forth a hard deadline to do so without any guidance as to how that and future deadlines in reliance on this report are to be altered as a result of the failure to identify acceptable data and methodology to create such report,” the NJSBA said.

The Association urged a mandate to the DCA to post a preliminary report so that municipalities may proceed with developing their HEFSPs. The additional recommendation to extend their deadlines is a reality because “[t]hese timelines are simply not sustainable or reasonable to demand from municipal planning boards, which are comprised of volunteers who meet on a monthly basis and are required to consider pending development applications and other agenda items.”

In addition to accommodating planning board review, the Association points out that municipalities must also conduct a prior review and revision of the HEFSP, a public hearing and adoption as well as the review of an implementing ordinance or risk losing immunity from builder’s remedy lawsuits. “This is not an insignificant or inexpensive task,” said the NJSBA.

Finally, the Association cautioned that a complete ban on the use of trust fund monies on attorneys’ fees impacts municipalities, specifically smaller municipalities, which will likely be required to retain counsel with specialized knowledge to provide competent legal advice and counsel to municipalities to navigate both procedure and substantive issues from objections by developer intervenors, opponents to “overdevelopment” and affordable housing advocates.

In the amended bill, it appears that the prohibition has been removed, however conflicting language permits the use of trust funds to retain counsel in one section, but not in another. The Association offered additional amendments to clarify this language.

The bill remains pending in the Senate Budget and Appropriations Committee. The NJSBA continues to monitor the bill to urge clarity and predictability on these affordable housing mandates.

 

February 12, 2024

Attorney-Conducted Voir Dire Pilot Program Spreads to Four More Counties

The Supreme Court has announced the expansion of the Attorney-Conducted Voir Dire (ACVD) pilot program to criminal matters in Atlantic, Cape May, Burlington and Hudson counties on or after April 1. The New Jersey State Bar Association encouraged attorney participation in the voir dire process generally to increase juror participation and address implicit bias in jurors, but raised concerns about the program’s requirements that the parties  agree to a reduction in peremptory challenges to participate.

ACVD became available in Bergen, Camden and Middlesex counties as part of the Judiciary’s examination of the jury selection process with an aim toward preventing discrimination in the jury selection process. The program is limited to single defendant criminal matters and requires the consent of both the prosecuting attorney and defense counsel.

In the Court’s Judicial Conference on Jury Selection in November 2021, discussion focused on the efficacy of judge-led voir dires with concerns that they lead to implicit bias. The conference was called following the Supreme Court’s ruling in State v. Andujar, 247 N.J. 275 (2021), which held that a murder defendant was denied a fair trial when a prosecutor ran a background check on a Black prospective juror without judicial approval.

The NJSBA studied the issue and prepared an interim report, examining the role bias plays in the jury selection process, the function of for-cause and peremptory challenges in the justice system, and reforms to the process for jury selection. On judge-led voir dires, the NJSBA Working Group on Jury Selection raised concerns that jurors were not always willing to be truthful to judges who asked questions regarding potential biases and therefore found that judge-led voir dires had the potential to prevent the detection of implicit bias in jurors.

“In response to ongoing positive feedback, the Supreme Court has authorized further expansion of the ACVD pilot program for criminal judiciary trials,” said the Judiciary. To date, it is not known how many such trials have been conducted.

For more information on the NJSBA’s recommendations for jury reform, visit njsba.com; for information on the ACVD program or for the Judiciary’s plans for jury reforms, go to njcourts.gov, Notices to the Bar.

Supreme Court Seeks Comments on Civil Practice and Tax Court Committee Reports

The Supreme Court has requested comments by March 29 of the proposed rule amendments recommended for adoption by the Civil Practice Committee and the Tax Court Committee.

The Civil Practice Committee recommended several amendments to the court rules on a number of issues that include manner of service, withdrawal and substitution, and attorneys’ fees on appeals. Additionally, the committee proposed amendments to the discovery rules and guardianships. A full report may be found here.

The Tax Committee also recommended amendments to discovery rules and corrected a typographical error. A full report may be found here.

Comments must be submitted in writing and may be mailed to:

Administrative Director Glenn A. Grant

Administrative Office of the Courts

Attn: Rules Comments

Hughes Justice Complex

Post Office Box 037

Trenton, New Jersey 08625-0037

Comments may also be emailed to [email protected].

The committee reports are currently being reviewed by the NJSBA for comments.

 

February 5, 2024

Capitol Report: DCPP Child Support Bill Advances

The Senate Health, Human Services and Senior Citizens Committee voted favorably on a bill that would remove provisions in the law that require the Department of Children and Families (DCF) to collect child support on behalf of children. The Equitable Outcomes in Child Support Collection Act, S2331 (Ruiz), attempts to align New Jersey with the revised policies issued in 2022 by the Children’s Bureau, an office of the federal Administration for Children and Families. The NJSBA signaled its support of this policy in a letter to the Administrative Office of the Courts supporting recommendations not to collect child support for children in the care of the Department of Child Protection & Permanency (DCPP).

The bill establishes new procedures for the collection of child support from legally responsible persons to offset costs of maintenance incurred by DCPP on behalf of children in DCPP’s care and custody. It stipulates that any current child support obligation or any unpaid outstanding arrears balance, unsatisfied civil judgments, all warrants, or any current outstanding liens entered on any property by the obligor – all obtained as a result of enforcing a child support obligation – would be deemed null and void and would be vacated and discharged.

In 2022, the Children’s Bureau revised its policy to allow and encourage state Title IV-E agencies – of which DCF is – to define more narrowly where it is appropriate to seek child support from legally responsible persons. In a joint statement by Aysha E. Schomburg, Associate Commissioner of the Children’s Bureau, and Tanguler Gray, Commissioner of the Office of Child Support Enforcement, the Administration for Children and Families highlighted the plight of parents who are hampered by foster care maintenance payments imposed by child welfare agencies while the child is in the agency’s care and custody.

“Many parent(s) of children who receive foster care maintenance payments are living in poverty and are too often required to pay child support to the state to offset the cost of their child placed in foster care,” said Schomburg and Gray. “This can negatively impact a family that is trying to develop and maintain familial and economic stability to reunify with their child. It is not in the best interest of any family to be pursued for child support when they have already been whipsawed by economic insecurity, family instability, and separation.”

The NJSBA is reviewing the bill. Just last month, it joined in the recommendations of Legal Services of New Jersey (LSNJ) advocating for policy and child support regulation changes. “We believe the measures proposed by LSNJ will help to ensure that parents who are working to reunify with their children will not be precluded from achieving the goals of reunification and stabilization due to state imposed child support obligations,” said NJSBA President Timothy F. McGoughran in a letter to the AOC. Specific recommendations include:

-Child support should not be ordered when collecting same would directly impede family reunification efforts or the parent’s ability to support the child after reunification;

-Support should not be ordered when the parent has been deemed financially eligible for appointment of legal representation, has been deemed eligible for Title IV-E funding, or has been deemed eligible for other means-tested public assistance;

-Where a parent is deemed of sufficient financial ability to meet or exceed the full costs of maintenance of the child incurred by DCPP, that parent may be ordered to pay support up to the full cost of maintenance of the child;

-Where a parent is not of sufficient financial ability to pay the full cost of maintenance for the child, the court may order the parent to pay their income shares of the sole-parenting award to that agency;

-Imputation of income for a parent whose child is in foster care should take into consideration limitations on the parent’s time and ability to work due to obligations required by DCPP or a court as a condition to achieve reunification, as well as a parent’s ability to work related to circumstances that caused the child to be placed in out-of-home care.

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.

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Archived Capitol Reports from 2024

January

January 29, 2024

State Bar Continues Advocacy in Faulty DWI Prosecutions Case, Monitors COAH Bill

The New Jersey State Bar Association continued its involvement as amicus curiae in the matter of State v. Zingis, which focuses on the admissibility of information and documentation in matters involving those convicted of driving while intoxicated (DWI) using breath samples involving former State Police Sgt. Marc Dennis. Dennis was charged with misconduct for failing to properly calibrate Alcotest machines, calling into question 20,000 tests produced in DWI stops where it was verified that the machines were calibrated by Dennis. The brief was authored by Jeffrey Evan Gold. Gold participated in special master hearings in the matter, along with NJSBA members John Menzel and Michael Troso.

In this latest round of briefing focused on addressing the Special Master recommendations submitted to the Supreme Court last fall, the parties addressed the issue of a subsequent DWI offense and enhanced sentencing where the person had a prior conviction that may have been affected by faulty  Dennis calibrated equipment. The Association filed a brief with the Supreme Court urging it to follow the Special Master’s recommendation to use an index and an NJSBA-created repository containing calibration certificates for all machines known to have been calibrated by Dennis as a resource to determine if a prior conviction may have been tainted.  The Association urged the Supreme Court to make the index and repository widely available, with certain protections, to provide notice to potentially aggrieved defendants and quickly obtainable evidence for active prosecutions. The Association further stressed the importance of the information being available for those contemplating post-conviction relief motions – rather than those already seeking post-conviction relief. It also urged the Supreme Court to require notice be provided to the Association regarding any modification of the repository with an opportunity to be heard before any modification be accepted by the Court.

The NJSBA awaits the Supreme Court’s ruling on this issue.

Focus on Affordable Housing Draws Concerns

The Senate Community and Urban Affairs Committee heard extensive comments on a bill that would abolish the Council on Affordable Housing (COAH) and transfer rulemaking authority to the Department of Community Affairs (DCA) and the New Jersey Housing and Mortgage Finance Agency (HMFA) to establish a process to determine present and prospective fair share affordable housing obligations. Assemblywoman Yvonne Lopez and Senator Troy Singleton introduced A4/S50 at the end of the last session, drawing the attention of many stakeholders who are concerned about the bill’s implementation. The Association is reviewing this legislation in anticipation of this heavily debated discussion.

Sponsors of the bill touted their objective on the issue to provide opportunities to providing affordable housing opportunities for residents with varying means.

“Our objective here today is to bring that full circle so that everyone, no matter where they live, no matter where they come from, can find a home here in New Jersey,” said Senator Singleton.

At the hearing on Thursday, the committee took testimony on the bill, including Senator Holly Schepisi who voiced concerns about the bill’s impact on municipalities trying to meet their fair share obligations. Senator Brian Stack, who is also mayor of West New York, commented that the bill is a “start in the right direction” and acknowledged the bill needs work. In addition to the senators, members of municipal councils spoke of their own experiences struggling to meet the affordable housing obligations only to have them challenged following approval.

Connie Mercer, CEO of the NJ Coalition to End Homelessness and Executive Director of HomeFront, testified in support of the bill stating that “S50 must pass to set a firm course for the creation of much needed affordable housing.” She testified that there is a “tremendous shortage of affordable housing in New Jersey.”

The bill passed along party lines. Senator Singleton pledged to work with stakeholders to address concerns on the bill. NJSBA members are currently reviewing the bill.

January 22, 2024

Governor Acts on Lame Duck Legislation

Governor Phil Murphy acted on several pieces of legislation of interest to the New Jersey State Bar Association. Throughout the last session, members worked with the Association to draft amendments, meet with legislators and testify and provide comments on a number of bills. Below is the status of the last bills of the session, which ended on January 8th.

A1739 (McKeon)S2989 (Pou) – Makes for profit debt adjusters eligible for licensing to conduct business in the State

The Governor pocket-vetoed this bill, which permits licensing of for-profit debt adjusters and eases restrictions for for-profit debt adjustors to provide services in New Jersey. Nonprofit organizations provide these services at low to no cost and consumers are already able to do this without the involvement of a debt adjuster. The Association urged the sponsors to consider recommendations contained in a New Jersey Law Revision Commission report in 2012, which examined debt services in New Jersey.

A4723 (McKeon)/S2740 (Codey) – Requires motor vehicle dealer to offer to delete personal information in motor vehicles in certain situations

The Governor signed this bill into law, which would require motor vehicle dealers to offer to remove personally identifiable information that is stored on the motor vehicle’s computer systems upon sale or lease of a vehicle. The Association supported the bill and offered amendments to strengthen consumer protections. The bill was revised to reflect some of those amendments, but the Association vowed to encourage further protections moving forward.

A5235 (Lampitt)/S3627 (Vitale) – Revises health insurance coverage requirements for treatment of infertility

The Governor signed this bill into law, which expands access to treatment of infertility by requiring insurance companies to provide coverage for such treatment when a person has been determined by their physician to need medical intervention to achieve a pregnancy. The bill also revises the definition for the disease of infertility to include individuals who cannot achieve a pregnancy without assistance of reproductive medicine because they are either a same-sex couple or single. The NJSBA supported this bill as a necessary measure to apply fertility treatments equitably without consideration of the person’s relationship status.

A3837 (Jaffer)/S2459 (Ruiz) – Requires State government entities to provide vital documents and translation services in 15 most common non-English languages

The Governor signed this bill into law, which the Association supported as an important measure that provides accessibility for New Jerseyans who are eligible for state benefits and/or services, but are unable to complete the forms because of limited-English proficiency. The NJSBA also encouraged expanding this access to other languages if necessary.

A4292 (Carter)/S2841 (Scutari) – Raises minimum amount of liability coverage for commercial motor vehicles and autocabs

The Governor signed this bill into law, which would increase the minimum bodily injury coverage for commercial vehicles as a New Jersey consumer-friendly provision that results in fairness in the administration of justice. The NJSBA pointed out that minimum coverage has remained stagnant for many years and commercial vehicle incidents most often result in significant damages. This increase – the first since 1972 – would reflect compensation more in line with actual damages. The Association further supports the amendment to create higher minimums for certain types of vehicles that can result in a bigger risk or more damages.

January 15, 2024

Lame Duck Session Roundup

The New Jersey State Bar Association vigorously advocated on several measures considered by the Legislature in the waning days of the recent legislative session. Guided by the knowledge, expertise and practical experience of its members, the Association issued position statements, spoke with legislators, collaborated with other interest groups and offered testimony on many bills considered in both the Senate and the Assembly.

Several bills supported by the Association now head to the Governor’s desk, along with a measure where the Association has expressed concerns. Here is a look at what is happening:

 A4723 (McKeon)/S2740 (Codey) – Requires motor vehicle dealer to offer to delete personal information in motor vehicles in certain situations.

The Association supports this legislation and has urged the addition of language to strengthen the consumer protections in this bill. The bill would require motor vehicle dealers to offer to remove personally identifiable information that is stored on the motor vehicle’s computer systems upon sale or lease of the vehicle. The bill was amended to require the dealer to disclose a fee to the consumer prior to removing the data so that the consumer can choose to remove it or go somewhere else to remove it.

 A5235 (Lampitt)/S3627 (Vitale) – Revises health insurance coverage requirements for treatment of infertility.

The NJSBA supports this bill, which expands access to treatment of infertility by requiring insurance companies to provide coverage for such treatment when a person has been determined by their physician to need medical intervention to achieve a pregnancy. The bill also revises the definition for the disease of infertility to include individuals who cannot achieve a pregnancy without assistance of reproductive medicine because they are either a same-sex couple or single.

 A3837 (Jaffer)/S2459 (Ruiz) – Requires State government entities to provide vital documents and translation services in 15 most common non-English languages.

The Association supports this bill as an important measure that provides much-needed accessibility for New Jersey residents who are eligible for state benefits and services, but are unable to complete the forms because of limited-English proficiency. The NJSBA also encouraged expanding this access to other languages, if necessary.

 A4292 (Carter)/S2841 (Scutari) – Raises minimum amount of liability coverage for commercial motor vehicles and autocabs.

The Association supports this bill, which raises the minimum bodily injury coverage for commercial vehicles. Its support centers on the fact that it is a New Jersey consumer-friendly provision that results in fairness in the administration of justice. The NJSBA pointed out that minimum coverage has remained stagnant for many years and commercial vehicle incidents most often result in significant damages. This increase – the first since 1972 – would reflect compensation more in line with actual damages. The Association further supports the amendment to create higher minimums for certain types of vehicles that can result in a bigger risk or more damages.

A1739 (McKeon)S2989 (Pou) – Makes for profit debt adjusters eligible for licensing to conduct business in the State.

The Assembly voted this bill out of the Legislature, and it now awaits the Governor’s signature. The NJSBA strongly opposes this bill, which permits licensing of for-profit debt adjusters, easing restrictions for for-profit debt adjustors to provide services in New Jersey. Nonprofit organizations now provide this service at no cost and provide counseling services to provide the same tools to consumers to reduce debt without paying a debt adjuster to do the same.

January 8, 2024

Mental Health Diversion Bill Signed Into Law

Gov. Phil Murphy signed into law S524 (Ruiz)/A1700 (Quijano), which creates Mental Health Diversion Programs to divert eligible persons away from the criminal justice system and into appropriate case management and mental health services. The New Jersey State Bar Association supported the bill and actively testified for its passage.

“Our communities and families do not benefit when individuals are arrested and incarcerated for symptoms of their mental illness,” said Senate Majority Leader M. Teresa Ruiz, the prime Senate sponsor of the bill. “The growing mental health crisis in New Jersey requires a comprehensive mental health solution. With the signing of this bill, we will ensure that those individuals with serious mental health challenges get the treatment, supervision, and the services that they need, rather than being trapped in the criminal justice system.”

The bill was conditionally vetoed by the governor with recommendations to remove from eligibility those who are charged with Megan’s Law triggering crimes. As enacted, the bill would create three regions in the state and assign one vicinage per region to begin the implementation of a Mental Health Diversion Program. Eligible people are defined as having committed nonviolent crimes in the third and fourth degree, with prosecutorial discretion to admit others in the program on a case-by-case basis. First-degree crimes and Megan’s Law triggering second-degree crimes are not eligible for the program.

“The law underwent many revisions and much debate to balance fairness to criminal defendants with the public’s interest for justice. Thanks to the careful consideration of the Legislature and governor – and the hard work of Sen. Teresa Ruiz, Assemblywoman Annette Quijano and their staffs – this law accomplishes both. It will do wonders to improve the health and well-being of those with mental health disorders, while creating a safer society and reducing the cost of incarceration borne by the taxpayer,” said NJSBA President Timothy F. McGoughran.

Under the new law, mental health professionals will evaluate and create treatment plans and the cases will be overseen by judges throughout the process through regularly scheduled Mental Health Team Meetings. The Attorney General’s office will be responsible for establishing the services and treatment professionals.

For-Profit Debt Adjusters Get the Nod for Licensure in Assembly Committee

A bill that would permit for-profit debt adjusters to be eligible for licensing to conduct business in the state was voted out of the Assembly State and Local Government Committee on Thursday. The NJSBA opposes A1739 (McKeon)/S2989 (Pou) over concerns that the bill would ease restrictions on for-profit debt adjustors and create opportunities for these companies to prey on vulnerable citizens by charging fees for what nonprofit organizations can guide them to do for free.

“We are aware that these entities are permitted to obtain licenses in 34 states, but we urge consideration of the fact that by not permitting for profit debt adjusters in this state, New Jersey remains a consumer-friendly state because the entities helping those most vulnerable are non-profits driven to assist – and not profit from – individuals already in dire straits,” said the NJSBA in its written statement.

The bill passed the Senate and awaits a full vote in the Assembly.

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Founded in 1899, the NJSBA is the largest organization of attorneys, judges and legal professionals in New Jersey. At the core of our mission is improving the lives of our members, advancing the rule of law and serving as the voice of the profession. With 85 sections and committees, the NJSBA allows attorney to benefit from being part of the most wide-reaching legal association in the state, while still cultivating expertise and building networks within specialized practice areas.

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