Capitol Report
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.
April 22, 2024
Supreme Court Declines to Adopt Regional or Statewide Madden Assignments, Updates Court-Appointed Attorney Form
The state Supreme Court will not regionalize or create a statewide model for assignment of Madden counsel, the Court announced in a Notice to the Bar addressing a recommendation by the Working Group on Pro Bono Assignments to examine how matters are assigned to attorneys. The Court also said it would refine data collection practices and statistical analysis regarding Madden assignments and would explore an Attorney Online Registration System to collect information to improve pro bono assignments.
The New Jersey State Bar Association made recommendations on Madden assignments, including that in anticipation of fully abolishing Madden assignments, the Court consider regionalizing assignment pools, rather than assigning attorneys by county; and publishing comprehensive data on right to counsel matters and assignments.
The Court noted recent developments impacting Madden assignments, including establishing a unit within the Office of the Public Defender to provide legal representation for anyone on parole charged with a violation of parole or who is under consideration for parole revocation. These matters were usually assigned to attorneys from the Madden list. The Court also recognized S2437 (Pou), which would direct the Office of the Public Defender to provide legal representation for contempt of domestic violence cases. These represent the highest percentage of Madden assignments.
“In light of these enacted and potential changes to the types and volume of cases handled by the Office of the Public Defender, as contrasted to those cases potentially requiring court assignment of Madden counsel, the Court has considered only certain portions of the Working Group’s report and recommendations,” said Judge Glenn A. Grant in the Notice to the Bar.
In addition to declining to regionalize Madden assignments and enhance data collection and analysis of Madden assignments, the Court promulgated a form to be used by defendants applying for Madden counsel. The Judiciary created a packet for litigants who want to apply for a Court Appointed Attorney and explained who is eligible.
The NJSBA drafted a comprehensive report – Achieving Effective Counsel in Right to Counsel Matters – that the Working Group relied upon in making its own recommendations to the Court. In addition to calling for the abolition of Madden assignments in favor of publicly compensated counsel, the Right to Counsel Committee of the NJSBA underscored the importance of providing effective counsel by pairing attorneys with expertise in a particular matter to the assignment. Those recommendations also included avenues for attorneys to provide pro bono work consistent with their skills. The NJSBA has advocated for S2437 to be passed into law and continues to work with stakeholders to abolish Madden assignments.
Here is a full copy of the Notice to the Bar and Pro Bono Attorney Application Packet
April 15, 2024
Expungement Process Needs Improvements, NJSBA Says
The New Jersey State Bar Association is calling for an end to the “genuine crisis with the expungement of criminal records.” In a letter to the Hon. Glenn A. Grant, Acting Administrative Director, and New Jersey Attorney General Matthew J. Platkin, NJSBA President Timothy F. McGoughran raised concerns about a process that “has been plagued by delays” impacting tens of thousands of individuals seeking employment, housing and other opportunities.
In 2019, cannabis reform led to an electronic system to process expungements, regrading certain marijuana convictions to allow for immediate expungements and reduced waiting periods to expunge both indictable and disorderly person’s convictions. In 2021, the New Jersey Supreme Court ordered the automatic expungement of over 360,000 records, specifically including those records for solely cannabis-related offenses.
“Nearly three years later, despite these changes, the handling of expungements remains a labyrinthine process, often differing from county to county,” McGoughran said. “As practitioners on all sides of the expungement system, our members continue to experience issues that frustrate the goals of the legislation and negatively impact residents and the newly created cannabis marketplace.”
Four main concerns outlined in the letter are:
Lack of Uniformity in Application of the Expungement Statute: Despite AOC Directive #05-23, which provides guidance on expungements — specifically the compelling circumstances standard, expedited expungements and eCourts — the expungement process varies widely county by county. Some counties interpret certain convictions as eligible for expungement and some do not. Furthermore, support for the new statutory standard of compelling circumstances may be met with a description of a petitioner’s rehabilitative journey in one county and a demand of actual evidence of rehabilitation in another county.
Clean Slate Expungement petitions suffer the same disparate treatment where some counties read the statute to preclude expungements where the application includes an indictable offense along with multiple disorderly persons and/or municipal ordinance violations. Finally, some counties will permit any balance due on fines and restitution, permitting such fines to be converted to a civil judgment and carrying on with the expungement, while other counties demand proof that non-payment was not willful.
Backlogs and State Police Access to eCourts: There is a significant backlog in processing expungement petitions across the state. While the statute requires a hearing date be set no more than 60 days after the filing of a petition for expungement, delays of up to 24 months are not unheard of, NJSBA said. Pointing to a class action lawsuit by the Office of the Public Defender, the NJSBA points out that the State Police’s lack of access to a petitioner’s file in order to review and/or file any objections before an expungement is granted would address this delay and avoid an unnecessary and potentially costly secondary review.
State Police Secondary Review Process: The NJSBA points out that the secondary review of expungements petitions following a court order not only conflicts with the plain language of the expungement statute, but also raises potential constitutional concerns. . The NJSBA said the secondary review process may implicate the separation of powers clause because determining eligibility for expungement is a function of the Judiciary and has already been completed by the time an expungement petition is granted.
Expungements of Foreign Nationals: Immigration courts and immigration agencies do not recognize or extend comity to state expungements for foreign nationals. As a result, the entry of a plea at any time — even if the matter has been dismissed, vacated, and expunged — equates to a conviction unless there is explicit language that the plea itself has been vacated. Those with automatic expungements are forced to apply to the Superior Court to vacate the expungement in order to obtain these records in support of immigration relief from removal or an immigration benefit. The resulting burden adds delays and significant expense for foreign nationals.
The NJSBA set forth seven recommendations to improve the expungement process, including ending the secondary review by the State Police, issuing a directive to adopt a uniform application of the expungement process, and granting State Police access to eCourts so that they can more timely object to a petition prior to the grant of an expungement. A full copy of the letter may be found here.
April 8, 2024
NJSBA Submits Comments on Supreme Court Civil Practice Rules
The New Jersey State Bar Association submitted comments mostly in support of the recommendations of the Supreme Court Civil Practice Committee in its January 2024 Report. The recommendations include updates to the rules to formalize electronic service of motions and discovery, discovery issues generally, and arbitrations.
“The NJSBA recognizes the importance of ensuring our rules are clear, establish procedures that are fair to all parties, and, most importantly, advance the interests of and access to justice,” NJSBA President Timothy F. McGoughran said in his letter to the Administrative Office of the Courts.
Specifically, the Association commented:
- 1:5-2 and R. 1:11-2: Manner of Service; Withdrawal or Substitution
The NJSBA supports the proposed amendments to R. 1:5-2, which addresses service by email of discovery demands and motions – but not original process. The proposed amendment formalizes the general practice post-COVID of electronic service of motions and discovery demands. Counsel would be permitted to serve one or all of the email addresses designated in eCourts, which eliminates the potential for emails being sent to a general mailbox to help ensure the email reaches the intended recipient.
The proposed amendment would also limit the rule amendment for service only between attorneys to protect self-represented litigants who may otherwise have limited access to technology.
Regarding withdrawal or substitution, the Committee proposed amendments to address two issues. Rule 1:11-2 is proposed to be amended to address missing contact information for non-lawyer parties where an attorney is withdrawing or seeking to be relieved from a matter and a non-lawyer is being substituted into the case. The proposed amendments would require the full name of the party or parties who will be self-represented, the current mailing address(es), and telephone numbers to be included with an application to be relieved as counsel.
The second proposed amendment would codify a prior rule relaxation that established confidentiality standards for certain landlord-tenant actions arising out of non-payment or habitually late payment of rent owed during the pandemic. This amendment addresses legislation that became effective Dec. 1, 2021.
The NJSBA pointed out that these proposals “reflect practical, reasonable amendments to Court Rules, will help to streamline communications among counsel, and will provide attorneys with critically needed information in pro se matters.”
- 2:11-4: Attorney’s Fees on Appeal
The Association suggest language to expand the scope of this proposed amendment, which provides a mechanism by which a party who prevailed on its appeal but is not yet a “prevailing party” is entitled to attorney’s fees and costs under a relevant fee-shifting statute. The amendment directs the party to apply for fees and costs after the remanded matter ends in the trial court.
The NJSBA suggest that in section (b) where the proposed amendment directs the timing and jurisdiction of a motion for attorney’s fees, that it be amended to read that if a motion for reconsideration is filed with any appellate court, a motion for fees shall be filed 10 days after the ruling on the motion for reconsideration by the last appellate court to rule on a reconsideration motion.
- 4:14-2: Notice of Examination; General Requirements
The Association urges clarification to the proposed amendments, which address issues that arise where the incorrect individual appears for a deposition as a corporate designee and does not possess relevant information. The NJSBA points out that the amendments are meant to reflect Federal Rule 30(b)(6) regarding organization depositions regarding the ability of parties to confer with non-party organizations about those individuals who will appear at a deposition on behalf of the organization to ensure that they possess information about the matters that will be examined.
The suggested change to the proposal would be to move reference to “conferring in good faith about the matters for examination” from subparagraph (d), which addresses “production of things” to subparagraph (c) regarding the examination of a witness.
“This language also reinforces the intent of the proposed changes that all parties have an opportunity to participate in any pre-deposition discussions with a non-party about the scope of the non-party’s deposition in order to prevent any biased manipulation of the testimony,” the NJSBA said.
- 4:19-1, -2: Physical and Mental Examination of Persons and Observation and Recording of Physical and Mental Examination of Persons
The Association recommends additional revisions to these proposed amendments, which clarifies the procedure regarding who may attend a defense independent medical examination (IME) as well as whether and how such examinations may be recorded.
The amendments suggested by the Association include eliminating a reference to matters pending solely in the Law Division, Civil Part to ensure the provisions apply to any matter to which the Part IV Rules apply and not just civil matters filed in the Law Division; removing the reference to “business” address to account for single individuals acting as an observer not affiliated with a business; clarifying that a curriculum vitae is only required from individuals who will serve as an expert witness; and clarifying the reference to the parties in last sentence of the Rule to be the party serving notice of the exam.
- 4:21-5 and -6: Arbitration Award, Entry of Judgment De Novo
The Association suggests a minor edit to the proposed amendment to these rules, which clarifies that the uploading of an arbitration award into the court’s electronic filing system (eCourts) constitutes filing and service by the court of the award under the Rule.
“To avoid confusion about when an arbitrator’s report is actually filed, the NJSBA recommends changing the first reference to the term “file” to “transmit” so that it is clear the award is only transmitted from arbitrator to civil division manager, not filed,” the NJSBA said.
- 4:22-1: Request for Admission
The NJSBA supports the proposed amendments to this rule, which would permit requests for admissions to extend to opinions as well as facts. The amendments are consistent with previous comments submitted by the NJSBA on this rule.
- 6.1-2, 6:3-4 and 6:4-3: Cognizability; Summary Actions for Possession of Premises; Interrogatories; Admission; Production
The NJSBA opposes these proposed amendments that seek to limit the available relief in an ejectment action to possession of the premises only and requiring a separate action to be filed for damages. Among the concerns raised is that the statutes that govern these actions permit both possession and monetary actions to be awarded at the same time in a summary action.
The Association argues that requiring a separate action to recover monetary damages goes against judicial economy. Furthermore, in trespasser/squatter situations, the defendant is oftentimes unknown and therefore it would be difficult to file a subsequent action for damages if the plaintiff does not know the party’s identity and cannot properly serve them. The proposed amendments give “a tremendous advantage to the trespasser/squatter and a landlord who illegally evicts” by placing additional hurdles on the plaintiff, rather than the wrongdoer.
Finally, the Association points out that unlike landlord-tenant actions, there is no separate docket for ejectment actions and therefore both the possession action and the action for money damages would be designated as DC Dockets. This could lead to confusion for everyone involved.
A full copy of the 2024 Report of the Supreme Court Civil Practice Committee may be found here. A copy of NJSBA’s comments may be found here.
April 1, 2024
NJ Law Revision Commission, NJSBA to Review Withholding of Gets
The New Jersey Law Revision Commission has agreed to collaborate with the New Jersey State Bar Association to study the issue of withholding a get in a religious divorce. In a public meeting last week, the commissioners heard from past Chair of the Family Law Section, Sheryl L. Seiden, on recent case law relative to gets and the impact on withholding a get from a woman seeking a divorce in the Jewish faith.
Last October, the Association requested that the NJLRC review the issue in light of two recent matters involving the withholding of gets. In Satz v. Satz, the Appellate Division held that where there was language in the marital settlement agreement that the parties agreed to submit to the jurisdiction of the beis din (“Jewish court”) and accept its judgment, the civil court had jurisdiction over the husband to issue sanctions if the husband did not cooperate with the decision of the beis din.
Less than a month after the Satz decision, in S.B.B. v. L.B.B., the Appellate Division reversed the issuance of a final restraining order resulting from the husband’s complaint of harassment. The wife created and disseminated a video asking Jewish community members to “press” her husband to deliver a get after he refused to do so. In S.B.B., the Appellate Division held that such speech was protected under the First Amendment, which “protects the right to coerce action by ‘threats of vilification or social ostracism.’”
At its meeting last week, commissioners discussed the issue and the potential Constitutional issues. The NJLRC agreed to collaborate with the NJSBA to explore the issue further to ascertain whether it should recommend amendments to New Jersey statutes to address the issue of withholding gets.
A full copy of the NJLRC’s memo outlining the issue may be found here.
NJSBA Signals Crisis of Expungement of Criminal Records, Urges Clarification
In a letter to the Administrative Office of the Courts and to the Attorney General’s Office, the NJSBA outlined an expungement process “plagued by delays” and urged efforts to clarify the process. It identified areas of concern rooted in lack of uniformity, backlogs, unnecessary secondary reviews, and other issues.
“Members of the NJSBA are concerned about a genuine crisis with the expungement of criminal records, particularly the swift expungement of records that was anticipated as part of cannabis reform,” said NJSBA President Timothy F. McGoughran. He pointed out that the problematic expungement process “has negatively affected employment, housing and a host of other potential opportunities and benefits for those the new law was meant to assist.”
Numerous examples of inconsistencies regarding the application and interpretation of the new expungement statute are evident across counties, said the NJSBA. Those examples include various interpretations of convictions eligible for expungement; differing requirements for meeting the new statutory standard in different counties when considering an expungement of a third- or fourth-degree controlled dangerous substance conviction; and inconsistencies and outdated proof requirements that exist in some counties.
Clean Slate Expungements also require clear guidance as counties treat differently those cases where a person has an indictable offense along with multiple disorderly persons offenses and municipal ordinance violations. The payment of fines has also been treated differently county by county, with some counties converting the fines to a civil judgment and others requiring testimony that nonpayment was not willful. The latter poses an unnecessary burden to the applicant and is not required under the statute.
The NJSBA also identified as an issue the “enormous backlog” in processing expungement petitions. The statute requires a hearing date no more than 60 days after the filing of a petition. Some counties are processing expungements in a timely manner, while others face delays of up to 24 months due to lack of sufficient resources to comply with the statute.
The timeframe for the New Jersey State Police to process expungement orders and seal an individual’s criminal record can take up to two years after an order is granted. While there is a class action lawsuit filed by the Office of the Public Defender, the NJSBA has recommendations to eliminate some of this delay by providing the state police’s attorneys access to the state’s online expungement portal.
The Association learned that the NJSP conducts a secondary review of expungement petitions after the receipt of a signed court order granting the petition before sealing the record. The NJSBA questioned this practice as the current statute does not allow for a secondary level of review by the NJSP.
The Association also noted that the immigration courts and immigration agencies do not recognize or extend comity to state expungements for foreign nationals, where such pleas equate to a conviction unless there is explicit language to the contrary. Foreign nationals who have had their records expunged must apply to the Superior Court to vacate the expungement in order to obtain records in support of immigration relief, causing delays and significant expense to foreign nationals.
A full copy of the NJSBA’s letter may be found at njsba.com.
March 25, 2024
NJSBA to Argue before State Supreme Court as Amicus in DWI Sentencing Case
The New Jersey State Bar Association will continue its work as a friend of the court in a case that involves more than 20,000 breath samples from driving while intoxicated (DWI) cases.
Jeffrey Evan Gold will argue the Association’s amicus position in State v. Zingis on Tuesday, March 26, when the New Jersey Supreme Court hears arguments in Trenton.
The case focuses on the state’s obligation, in a prosecution for a second DWI offense, to prove that a prior DWI conviction was not based on Alcotest breath sample results involving former State Police Sgt. Marc Dennis. Dennis was charged with misconduct for failing to properly calibrate Alcotest machines. That has called into question thousands of tests produced in DWI stops where Dennis calibrated the machines.
The Association has been part of the case during briefing and throughout special master hearings. Gold and NJSBA members John Menzel and Michael Troso wrote the NJSBA briefs.
“The Zingis questions are on discovery and burdens of proof. How does the State satisfy its discovery obligations, when seeking an enhanced sentence, to disclose to a defendant that Dennis calibrated a subject test they took during the arrest which ultimately convicted?” the Association stated in a brief. “What is the burden of proof on the State when it knows (collectively) that a Dennis calibration was associated with the prior arrest, versus when it knows he was not?”
The Association has urged the Supreme Court to follow the Special Master’s recommendation to use an index to track the cases in question 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 said the Supreme Court should 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 could be accepted by the Court.
Arguments begin at 10 a.m. To watch live, visit njcourts.gov.
March 18, 2024
Open Public Records Act Needs Amendments, Says NJSBA
Two New Jersey legislative committees heard lengthy testimony on S2930 (Sarlo)/A4045 (Danielsen), which would make significant changes to the state’s Open Public Records Act (OPRA). The New Jersey State Bar Association did not take a position on the bill, but proposed three amendments to suggest ways to ensure attorneys who use OPRA for the benefit of their clients don’t face unnecessary hurdles or issues.
“We appreciate your concerns with the current law and certainly understand the intention to balance the equities,” said the NJSBA to the bill’s sponsors. It urged amendments to clarify that attorneys are not commercial requestors and to remove the prohibition that attorneys may not seek documents that are part of a discovery request or a court order. The Association also signaled concerns about the ability for a government entity to reject a request for a document that is “maintained by another public agency.”
The bill amends the definition of “commercial purpose” to include the “direct or indirect use of a government record for sale, resale, solicitation, rent or lease of a service, or any use by which the user expects a profit either through commission, salary or fee.” There are exemptions for media and educational uses. The Association argued that this definition unwittingly sweeps in attorneys who use OPRA for a number of purposes. In addition, the bill would require a requestor who is making the request on behalf of a third party to disclose the name of the person on whose behalf the request is being made. NJSBA argued this could potentially violate attorney confidentiality in some circumstances.
The bill also prohibits an attorney’s request for documents “if the record sought is the subject of a court order in the legal proceeding or if compliance would otherwise be unreasonable, oppressive or duplicative of an already pending discovery request made in that legal proceeding.” That same clause requires the attorney to certify whether the government record is being sought in connection with a legal proceeding and identify the proceeding, including disclosing a party of interest, that party’s attorney and any person acting as an agent for or on behalf of that party. The Association said that the Supreme Court has already held that documents that do not have to be disclosed due to a court ruling does not translate into a prohibition on obtaining the same document through OPRA.
Finally, the Association urged removing the section involving other public agency documents because it raises concerns that it unduly burdens not just the requestor who has to go to another agency for the record, but also the other public agencies.
The NJSBA continues to review the bill and any amendments and asked to work with the sponsors on these and other issues that were raised during that review.
March 11, 2024
Seven Get Nod for State Superior Court Bench
The New Jersey Senate Judiciary Committee advanced seven nominees for appointment to the state Superior Court bench. Six are from Bergen County and one is from Ocean County. Pending a vote of the Senate later this month, if the hopeful jurists are approved judicial vacancies would go down to 41.
“We’re getting where we should be and I think the court systems are a lot more normalized now,” said NJSBA President Timothy F. McGoughran in an interview with NJ Spotlight News.
The nominations were announced days after the New Jersey Supreme Court said it was lifting the moratorium on conducting civil and matrimonial trials in the Somerset/Hudson/Warren Vicinage. While the nominations are helping to stem current backlogs, many counties are still working to get through the backlog of matters.
Passaic County is the only vicinage currently under a moratorium on civil and matrimonial matters. Passaic County Bar Association President-Elect Toni Belford Damiano expressed frustration at the mounting caseloads, which she says impacts families seeking divorces, in particular.
The NJSBA signaled a judicial vacancy crisis two years ago as vacancies increased following the pandemic. Vacancies were as high as 69 at the end of 2022. The slowdown in nominations compelled the Supreme Court to halt civil and matrimonial trials months later while the vacancy rate continued to hold steady during 2023. At the end of 2023, there was still a 12%shortage of judges in the Superior Court with retirements on the horizon.
Several candidates remain in the pipeline for judicial nomination, which – if confirmed – would bring the vacancy rate to more manageable numbers. The NJSBA continues to monitor the issue and urges “state leaders – the governor and the state Senate – to fulfill their Constitutional duties and act swiftly to approve more qualified candidates to the Judiciary
COAH Up for Consideration Again Before Senate Committee
On March 11 the New Jersey Senate Budget and Appropriations Committee will consider A4 (Lopez)/S50 (Singleton), which abolishes the Council on Affordable Housing and significantly overhauls municipal responsibilities regarding affordable housing. The NJSBA did not take a policy position on the issue, but recommended amendments to address the obligations imposed on municipalities to meet deadlines and the use of trust fund monies for attorney’s fees.
In its latest round of amendments, the bill expanded some of the timelines relative to the Housing Element and Fair Share Plan. However, the bill still restricts the use of municipal development trust funds on attorney’s fees to obtain a Judgment of Repose, contest a determination of the municipality’s fair share obligation, or on costs of any challenger in connection to a challenge to the municipality’s obligation, housing element or faire share plan.
The NJSBA raised concerns that such a prohibition would undoubtedly impact smaller municipalities that may be required to hire special counsel to address these complex issues. A recommendation was made to amend the bill to remove the prohibition to ensure that municipalities have the resources to appropriately address any such challenges.
Sponsors publicly anticipated amendments to address concerns raised at prior hearings. New language is anticipated to be made available next week.
March 4, 2024
State Supreme Court Rescinds Directive Prohibiting Pleas for DUIs
In a turnabout, the New Jersey Supreme Court issued an order earlier this week rescinding a directive that would prohibit plea deals for driving under the influence (DUI) matters. The New Jersey State Bar Association supported the legislation which, among other things, extended the deadline to permit the installation of ignition interlock devices (IID) and permitted plea agreements for certain DUI or refusal charges. The Association did not take a position on the issue of the directive, but were urged by members to review the issue in light of its support of the legislation.
On Dec. 21, 2023, Gov. Phil Murphy signed the bill into law, representing a significant change in the way DUI matters are handled in municipal court. Following enactment of the new law, the Administrative Office of the Courts issued a memorandum to assignment judges and municipal court presiding judges announcing that Guideline 4 for Operation of Plea Agreements in the Municipal Courts of New Jersey remained in effect, in contradiction to the law.
The memo drew strong criticism from municipal court practitioners and from Senate President Nicholas Scutari, who sponsored the bill.
However, last week the Supreme Court reversed course and issued an order withdrawing Guideline 4. After recounting the case law on Guideline 4 and the parameters of governing pleas by the other branches of government, Chief Justice Stuart Rabner concluded that cooperation among the branches of government outweighed a “test of the limits of their power.”
“Accordingly, in the interest of comity, the Court adopts the statement of policy in the amendment to N.J.S.A. 39:4-50 and withdraws Guideline 4,” said Chief Justice Rabner. The order is effective immediately.
A full copy of the order can be found here.
Court Issues Notice On Rule Relaxation in Auto Theft Offenses Ahead of Legislative Efforts
The state Supreme Court issued a Notice to the Bar announcing that the Court Rules relative to certain auto theft offenses and violations of pretrial monitoring conditions have been relaxed. The order establishes a presumption that a complaint-warrant, not a complaint-summons, would issue upon a finding of probable cause that a defendant has committed certain auto theft offenses or certain violations of the conditions of pretrial release. The order implements two recommendations of the Reconvened Joint Committee on Criminal Justice regarding public safety concerns about car thefts and the high rate of repeat offenses. The Court noted that these amendments “aligns with legislative efforts to support public safety through tougher enforcement of those offenses.”
A full copy of the order is available here.
Archived Capitol Reports from 2024
February
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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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.