Capitol Report


July 6, 2015


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. 


Judiciary Publishes List of Qualified Pro Bono Organizations


The Judiciary issued a list of organizations qualified for pro bono, fee waiver, or law school clinic status pursuant to new Court Rule 1:21-11 (Definitions and Certifications Requiring Pro Bono Practice), which became effective Jan. 1, 2015.


The new Court Rule requires that organizations that are already approved or that request certification file an annual renewal certification beginning April 30, 2016. R. 1:21-11(b)(1). The renewal form must include a list of attorneys, law students or law graduates who have provided pro bono services under the organization or program during the preceding calendar year. Additionally, the Judiciary has created an online resource for interested attorneys and law school students to more easily locate pro bono organizations and approved law school clinics. For more information on these organizations, go to


The NJSBA’s Military Legal Assistance Program (MLAP) is among the approved pro bono programs. MLAP is always looking for volunteers to provide free legal advice to veterans who encounter legal issues before their deployment or upon their return home. Members of the military who have served in active duty or in the reserve units can receive assistance with family law, debtor-creditor issues and employment law matters. Any attorney who annually volunteers 25 or more hours of pro bono service can earn a Madden exemption. To find out more, visit the New Jersey State Bar Association’s website at or email [email protected].


Governor Vetoes Gestational Carrier Act Again


Citing the “societal deprecation of the miracle of life” Governor Chris Christie again vetoed the Gestational Carrier Act, which would have provided guidelines for all gestational agreements. This is the second time the governor has been presented with the bill, which was sponsored by Senator Joseph F. Vitale and Assemblywoman Valerie Vainieri Huttle.


As written, the bill would have provided a statutory framework where a woman agrees to carry and give birth to a child using another woman’s egg so the child is not genetically related to the carrier. Currently unregulated in New Jersey, this legislation would have required that a written agreement address a number of issues and expressly state certain terms before any agreement can be made. It mandates medical and psychological evaluations be conducted by licensed professionals, and provides for an order addressing parentage and support obligations. Under current law, although the surrogate is not the biological parent the surrogate is considered the child’s parent.


A press release issued by the Governor’s Office regarding the veto noted the governor believed the bill presented “significant ethical and moral concerns.” In the press release, the governor said:


“In 2012, I vetoed this identical bill. I did so because of the significant ethical and moral concerns raised by a government-enforced system of agreements to procreate. I have repeatedly stated that every life is precious, and every human deserving of protection. I take seriously the need to guard against any societal deprecation of the miracle of life. Unfortunately, rather than work with interested parties to address concerns raised during the initial debate on this bill and craft a measure that could be supported by a wider coalition, the Legislature instead passed the same bill without making even a single change. It should therefore come as no surprise that I remain unconvinced that the Legislature has addressed the myriad social, moral, and ethical questions presented by this bill.


Palimony Bill Clears Senate


A bill that would require palimony agreements made prior to 2010 be put into writing within one year of the date of enactment of the legislation cleared the Senate. S-2553 (Scutari) drew a spirited debate among Democrats on the floor of the Senate after Senator Bob Smith read an opinion by the Office of Legislative Services stating that palimony agreements made prior to the 2010 statute requiring that these agreements be in writing were legally formed contracts, and that the bill was “susceptible to challenges unconstitutionally impairing contract obligations currently vested, recognized and enforceable” under existing law. Senator Smith called the bill “patently unfair.”


An exchange between the bill’s sponsor, Senator Nicholas Scutari and Senator Nia H. Gill resulted in the bill being compared to the Supreme Court’s recent decision on pension payments and marriage equality. Senator Scutari argued that New Jersey had never recognized common law marriage and that palimony was an example of “court overreach” and “judicial activism.” He criticized palimony as a creature of case law created by creative attorneys. He also pointed out that the contracts clause is the least enforceable aspect of the Constitution that is routinely differentiated by the Supreme Court, most recently in the Court’s decision in the pension payments challenge. He characterized the bill as an attempt to clarify what the law is. Senator Gill pointed out that the Supreme Court did not invalidate the contract in the pension payments matter, but rather the Court held that the contract was subject to superseding clauses of the Constitution. She further pointed out that gay marriage in New Jersey was also a right given by the Court because the legislation was never signed by the governor, and so there was no difference between gay marriage and palimony.


The NJSBA opposed this bill, arguing that it is unconstitutional per the Supreme Court’s dicta in Maeker v. Ross. The bill passed by a vote of 22-14 and now heads to the Assembly Judiciary Committee. There is no Assembly companion bill.


Juvenile Justice Bill Heads to the Governor


A sweeping reform of the juvenile justice system heads to the governor after passing both houses last week. The bill’s sponsor, Senator Nellie Pou, vowed to work with stakeholders despite its passage by the Senate Law and Public Safety Committee in March “without recommendation” for further movement in the Legislature. The bill went through several revisions and lengthy testimony before the Senate Budget and Appropriations Committee and the Assembly Law and Public Safety and Appropriations Committees.


The bill—S-2003 (Pou)/A-4299 (Sumter)—promises major reforms in key areas including waivers, which determines whether a juvenile case should be transferred to an adult criminal court. The bill contemplates a reverse waiver in certain circumstances. The bill also addresses the controversial use of room restriction, otherwise known as solitary confinement of juveniles.  The bill limits the situations in which a juvenile can be assigned to room restriction and requires that other less restrictive options have been exercised.


The governor has not yet signed the bill.