Capitol Report

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April 8, 2019

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.

Legislative round up: Key legislation sent to governor before budget hearings

The governor has been busy with significant legislation that impacts foreclosures, employment settlements and physician-assisted suicide.

S-1244 (Rice)/A-664 (Jasey)—Foreclosure Mediation Program

A bill that codifies the Judiciary’s Foreclosure Mediation Program and makes some adjustments to the program to afford homeowners an opportunity to mediate after receiving a notice of intention to foreclose awaits the governor’s signature. The New Jersey State Bar Association supported the bill with amendments to ensure good faith mediation by ensuring that both parties come to the table with authorization to settle.

If signed into law, a homeowner has to be given written notice of the option to participate in the Foreclosure Mediation Program when the homeowner receives a notice of intention to foreclose. Another notice must be issued upon the filing of a mortgage foreclosure complaint against the eligible property. No fees would be required for the homeowner to participate in the program and both parties are expected to mediate in good faith with the authority to reach a mutually acceptable loan modification, loan workout, refinancing agreement, or other resolution. The failure to mediate in good faith could lead to penalties on the defaulting party.

The bill was sent to the governor on March 25.

S-1072 (Scutari)/A-1504 (Burzichelli)—Medical Aid in Dying for the Terminally Ill Act

A controversial bill that permits physician-assisted suicide for the terminally ill was presented to the governor on March 25. The NJSBA supported the bill because it gives people in the end stages of terminal illness the option to avoid suffering with the assistance of healthcare providers. A strong opposition to the bill remained concerned that it could lead to a slippery slope towards euthanasia. The bill is expected to be signed by the governor.

Under the bill, an adult with the capacity to make healthcare decisions, who has been determined by his or her physician to be terminally ill, may obtain medication he or she may self-administer to terminate his or her life. A number of safeguards were put into place to address concerns about the safety and integrity of the process, including:

-          The patient must have a prognosis of six months or less in order to request and be prescribed the medication under the bill.

-          A ‘terminal disease’ is defined under the bill as an irreversible disease that has been medically confirmed and will result in a patient’s death within six months.

-          The bill requires patients suffering from a terminal disease to first verbally request a prescription from an attending physician, followed by a second verbal request at least 15 days later.

-          The attending physician would have to offer a chance to rescind the request. 

S-121 (Weinberg)/A-1242 (McKeon)—Banning Nondisclosure Agreements

The governor signed into law a bill that would ban provisions in employment contracts that wave the right to conceal the details relating to discrimination, retaliation or harassment claims. The NJSBA voiced strong concerns about the bill’s efficacy in protecting victims and offered a number of amendments to address these concerns. The bill that was signed into law does not contain these amendments.

The bill voids nondisclosure agreements as against public policy and unenforceable. It further deems confidentiality provisions unenforceable against an employer if the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable. The NJSBA offered “Employee Choice Amendments” to give the victim the choice to enter into a confidentiality agreement, citing to concerns that a victim may not want any disclosure of the facts leading to such a claim. Other concerns raised by interest groups relate to the ban on arbitration of such claims, which they believe is unconstitutional in light of recent United States Supreme Court decisions.