BAR REPORT April 17, 2017

New Jersey Law Journal

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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. To learn more, visit njsba.com.

 

NJSBA Weighs in on Several Supreme Court Rules Committee Reports

 

The New Jersey State Bar Association submitted comments on several reports and recommendations issued by the Supreme Court Complementary Dispute Resolution, Family Practice, Municipal Court Practice, and Rules of Evidence committees.

 

Complementary Dispute Resolution

 

The association’s comments on the report of the Complementary Dispute Resolution Committee focused on recommended amendments to Rule 1:40 regarding mediation and arbitrators. Specifically, it noted concerns with the proposal to Rule 1:40-4(b) to require mediators, including economic mediators, who make an application for fees for a litigant’s failure to pay fees to start an action in the Law Division, Special Civil Part. The current procedure is to file an application directly with the judge who appointed the mediator, which the association noted is effective and efficient because it moves “many cases off of the courts’ burdened calendars.” It was further noted that several counties already have a policy where the court will enter a one-page order to show cause requiring litigants to appear at a return date if the fees have not been paid, which puts a litigant on notice and provides the litigant an opportunity to respond. This often results in prompt payment before the court is called upon to rule on the fee application. For these reasons, the NJSBA recommended that a provision be added to permit a mediator to apply to the court of appointment for a summary disposition regarding the reasonableness of the fee and an order of payment.

 

The association further noted that while no specific amendment is proposed to Rule 1:40-12(b)(1) establishing qualifications for mediators and arbitrators in court-annexed programs, there are inconsistent training requirements between civil mediators who want to serve in the Family Part and other mediators. Civil mediators are exempt from additional specialized training if they want to serve in the Family Part, but Family Part mediators are required to take a supplemental civil mediation course. The association recommended that the qualifications for mediators in the Family Part should align with the qualifications for mediators in other divisions under Rule 1:40-12.

 

Family Practice Committee

 

The NJSBA generally agreed with and supported several of the recommendations issued in the Family Practice Committee Report, with specifically noted comments or objections to issues related to the confidentiality of Family Part pleadings and documents, the treatment of causes of action related to civil unions or domestic partnerships, and termination of child support obligations.

 

The association reiterated its comments in an earlier letter with respect to Rule 1:38 regarding access to Family Part records. It acknowledged the committee’s willingness to expand confidentiality of Family Part pleadings and other documents, but highlighted the need to expand this confidentiality even further to eliminate or greatly reduce “the potential of immeasurable harm to children and the destruction of families in transition that could arise from the dissemination of personal information contained in those records.” As such, recommendations to expand these recommendations include:

 

  • redacting personal identifiers, information culled from case information statements, or personal information regarding children from non-consensual orders and court rulings;
  • narrowing the exceptions with respect to access of these documents further than ‘named parties’ to account for those named parties who are only named for discovery purposes (e.g., business partners or entities in which a party may have an interest) and the co-respondent named as a result of pleading adultery as a cause of action.

 

With respect to dissolutions or terminations of civil unions or domestic partnerships, the association lauded the proposal to specifically address each legal union, which may include more than one because of the evolution of the ability of same-sex couples to enter into a form of legal marital status equivalent. The association suggested a modification to Rule 5:4-2 to provide a final and sweeping mechanism for same-sex couples to conclude all existing relationships by way of the final order, including those they may have forgotten to disclose, or which may not have been terminated as a matter of law in New Jersey or in another state when they entered into a subsequent statutory or other union. The association also supported a proposed amendment to Rule 5:7-1 to allow out-of-state couples seeking to dissolve a New Jersey civil union to file an action in New Jersey. The proposed rule change would remedy an “inequity” resulting from the current inability of non-resident civil union couples to dissolve their civil union if their state of residence does not provide them with a forum to do so.

 

The association relied upon its earlier letter to Judge Glenn Grant in response to a recent notice to the bar establishing an interim protocol regarding the termination of child support obligations in response to proposed rule changes to Rule 5:6-9. The letter outlined concerns that the proposal generates confusion and misstates the law with respect to same, specifically taking issue with notices sent out that led obligees to believe that child support was terminated at age 19, regardless of a prior court order or judgment stating otherwise. Other issues include an apparent misstatement that child support may not continue past age 23, a reference to healthcare coverage that does not exist in the enabling statute and an ambiguous procedure to decide issues of the status of child support. The association is awaiting a response to this letter, but reiterated its concerns in its comments on the report.

 

Other issues addressed in these comments included a recommendation that the term “hearing officer” be included wherever the term “judge” is used in Rule 5:7A related to domestic violence hearing officers hearing applications for temporary restraining orders; a recommendation to reorganize the list of documents required for disputes of college and postsecondary expenses to group the categories into pre-college expenses, college expenses, college status, proof of payment and source of funds (parent and child); and reiterating its position related to collecting unpaid mediator’s bills, similar to those in the Complementary Dispute Resolution Committee, and adding clarifying language regarding guidelines for compensation of mediators.

 

Municipal Court Practice Report

 

The association supported the recommendation to allow plea bargaining in drug cases, contained in the recommendation to amend the Appendix to the Part VII Court Rules. However, it opposed a ban on a plea agreement where an individual “allows another to drive” under the influence of alcohol. The association pointed out that the requirement creates a mens rea requirement that would be difficult to establish, and would lead to an increase in trials challenging a prosecutor’s ability to prove this element. Rather, the NJSBA proposed that prosecutors should continue to have discretion to dismiss “allowing” offenses when a defendant is charged with the underlying offense of driving while intoxicated.

 

The association opposed the proposed amendment to Rule 7:8-12(a) regarding a municipal court judge’s authority to impose monetary and other sanctions on attorneys who, without cause, do not appear or fail to timely make penalty payments. It pointed out that it believes the rule is duplicative of Rule 1:2-4(a), creates an unintended distinction between prosecutor and defense attorneys, and will cause confusion. The proposal is ambiguous and overarching, the NJSBA believes, and places an undue burden on attorneys who will worry about being sanctioned when reasonable adjournment requests are denied or they arrive to a sequent court late. The state bar supported the recommendation to Rule 7:8-12(b) regarding a defendant’s failure to appear, because it believes it provides a measure of protection to defendants that did not previously exist by placing limits on the sanctions that can be issued against them.

 

Finally, the NJSBA supported the rule change to Rule 7:9-5, placing limits on monetary assessments for contempt of court. The association pointed out that the proposed change provides protection against unreasonable sanctions for failure to pay fines, but preserves a judge’s discretion to impose lessor or no sanctions, as circumstances may dictate.

 

Rules of Evidence Report

 

The association supported two rules changes regarding changing oaths to a non-religious-based statement and permitting electronically scanned documents to be considered ‘originals.’ The rules changes to N.J.R.E. 603, 604 and 803(a)(1)(B) eliminating the use of religious oaths for witnesses places New Jersey in line with other jurisdictions. The change to N.J.R.E. 1001(c) and (d) is “practical and appropriate,” according to the NJSBA.

 

The association took issue with the proposed change to N.J.R.E. 530 regarding anti-waiver agreements regarding inadvertently disclosed information, citing concerns with the creation of an affirmative step to protect a privilege that otherwise exists. “This essentially creates a presumption that an inadvertent disclosure operates as a waiver of privilege, unless an advance agreement provides otherwise.” The association proposed following the approach adopted by the federal courts, which provides more predictability and greater protection to attorneys without requiring them to take steps in advance. Under F.R.E. 502, the disclosure would not operate as a waiver in a federal or state proceeding if: 1) the disclosure is inadvertent; 2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and 3) the holder promptly took reasonable steps to rectify the error.

 

Minority Concerns Report

 

The Committee on Minority Concerns also issued a report focusing on the inclusion of implicit bias training as a routinely offered mandatory component of training for all Judiciary stakeholders; the inclusion of sexual orientation and gender identity training as a regular mandatory component of training for all Judiciary stakeholder and that it be added to the current diversity and inclusion training provided as part of new judges’ orientation; the inclusion of continuing legal education involving specified diversity requirements; the development of a set of introductory, self-guided videos posted to the InfoNet to provide newly assigned judges with an introductory overview of and orientation to the Judiciary’s diversity and inclusion philosophy and internal diversity and inclusion resources; and the establishment on a working group on reentry issues to address relevant court-related procedural matters. The NJSBA had no comments regarding this report.

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