January 20, 2020
The 2018–2019 session ended with some surprises, some wins and some disappointments. The overall results are yet to be seen, as the governor still has the power of the pocket veto at his disposal. Here is a snapshot of what the New Jersey State Bar Association (NJSBA) has followed, is following in the next few days, and will be following in the next session:
NJSBA-Supported Bills on the Governor’s Desk
A number of bills supported by the NJSBA were passed by both houses in the final hours of the legislative session and, as of this writing, are awaiting the governor’s signature. The measures include S-700 (Ruiz), which allows for eligible non-citizens to obtain financial aid for college; A-1796 (McKeon), which prohibits a “gay and transgender panic defense” to murder charges; and A-4699 (Moriarty), which requires certain disclosures to be made by companies offering to file annual governmental reports for businesses for a fee. The governor has seven days from the date of final passage to sign the bills or they are considered pocket vetoed.
Family Law/Child Welfare
Child support and child welfare were the focus of recent family law legislation. A cleanup bill was introduced late in the session to address an exception in the child support termination statute for children who suffer from a severe mental or physical incapacity that causes them to be financially dependent on a parent. S-4286 (Vitale)/A-5890 (Swain) awaits the governor’s signature over the objection of the NJSBA, which raised issues at the inception of the statute over this and other issues. NJSBA Family Law Section Chair Sheryl Seiden testified before the Assembly Judiciary Committee that judges and practitioners often misinterpret the bill as a presumptive emancipation statute that results in wrongful termination of child support and puts the onus on custodial parents to demonstrate a child’s entitlement to further support. The bill also terminates medical support.
Another family law bill that awaits the governor’s signature would permit prior statements by children to be admitted into evidence in child abuse and termination of parental rights cases. S-497 (Vitale)/A-4626 (Mosquera) ostensibly prevents a child from testifying in court by adding supplemental language to Title 30, similar to the language currently in Title 9 cases dealing with child abuse or neglect cases brought against parents for services. If signed into law, previous statements made by a child relating to any allegations of abuse or neglect would be admissible in evidence in any hearing to terminate parental rights, to provide judicial review and approval of a permanency plan, to determine care and supervision or custody, for guardianship, and in other proceedings. The NJSBA opposes the bill as written, arguing children rarely testify in open court and should be permitted to testify, if necessary, under appropriate circumstances and in an appropriate setting as currently exists today. Joining the NJSBA in its opposition is Legal Services of New Jersey and the American Civil Liberties Union.
The so-called independent contractor bill—S-4204 (Sweeney)/A-5936 (Coughlin)—did not make an appearance back in committee, but voters could see a new version of it in the upcoming session. The bill sought to amend the test to evaluate whether a person was an employee or an independent contractor, commonly known as the ABC test. The NJSBA opposed the bill because of the significant impact on not just attorneys, but professionals relied upon by attorneys, said former NJSBA Trustee Christine Amalfe in her testimony before the Senate Labor Committee.
A pair of auto insurance bills were the focus of the NJSBA—one that opened the door to bad faith litigation against claims adjusters who failed to timely pay claims and another that would shift the payment of claims to injured innocent third parties involved in accidents against fraudulent insureds.
• S-2144 (Scutari)/A-3850 (Quijano)—widely referred to as the “bad faith bill”—drew opposition from a swath of strange bedfellows, including insurance companies, insurance adjusters, and other interest groups who felt the bill was too broad in permitting a private right of action against claims adjusters for negligence. The NJSBA initially opposed the bill, but recommended amendments, many of which were made in recent versions of the bill. The bill stalled in the Assembly.
• S-1732 (Cryan)/A-2092 (Holley) was voted out of the Assembly Financial Institutions and Insurance Committee over the objection of the NJSBA, which cited to the Supreme Court’s decision in Citizens United Reciprocal Exchange v. Perez, 223 N.J. 143 (2015), for the premise that the bill was counter to public policy. The bill never made it to the voting floor.
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.