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.
Changes Abound in Court’s omnibus rules and appendices amendments changes go into effect Sept. 1
The Supreme Court issued its omnibus amendments to the Rules of Court, which become effective on Sept. 1. The New Jersey State Bar Association commented extensively on the various rules amendments. While the Court adopted many of the recommendations supported by the association, a number of recommendations remained unaddressed or rejected. The association continues to work with the Administrative Office of the Courts to address these concerns.
A majority of the changes are contained within Section 3, dealing with the Appellate Division, and Section 5, dealing with the family part.
Chapter 1 Amendments
Section 1 changes include an addition to what constitutes nonconforming papers in family part actions; the inclusion of law guardian subpoenas in actions brought by the Division of Child Protection and Permanency to be noticed as not requiring the prepayment of a witness fee in certain circumstances; and limiting the compensation of special masters for opinion preparation.
An amendment to Rule 1:11-2 now clarifies that an attorney who appears for a client who previously appeared pro se needs to file a notice of appearance, and not a substitution of attorney, and pay the appropriate notice of appearance fee.
The Court also added Rule 1:32-2A(d) to address metadata, specifically requiring anyone who filed a document without removing metadata to file a motion to remove it or to replace the document with a version that does not contain the metadata. Metadata submitted to the Judiciary is subject to public disclosure.
The Court expanded the universe of family part records that will be kept confidential under Rule 1:38, which the association considered a step in the right direction. But the Court declined to adopt specific recommendations to keep confidential certain other records. The Court amended the rule to generally require that records deemed confidential by statute, rule or case law will continue to be kept confidential unless the court finds good cause to permit access. Additionally, the association recommended that restrictions to access of family part records not apply to parties in any litigation and that unfettered access by third-party plaintiffs or defendants be limited to documents or information concerning the cause of action directly related to the case. However, the Court declined to incorporate these recommendations.
In recommending such restrictions, the association reiterated the concerns Judge Jack Sabatino outlined in Smith v. Smith, 379 N.J. Super. 447 (Ch. Div. 2005), that efiling would make documents “far easier to retrieve by outsiders” and that “such broadcasted diatribe has the capacity to defame not only celebrities and public officials, but also average citizens whose backgrounds could be researched” on the internet by prospective employers, business associates, and the like. Judge Sabatino concluded that efiling “may warrant the judiciary to reconsider, prospectively, the current balance of interests in favor of open court proceedings.”
With respect to compensation and payment of mediators under Rule 1:40(b), the Court amended the rules so a family mediator will now be permitted to file an action in either the family part or special civil part (or civil part if the amount exceeds the jurisdictional limit of the special civil part). The NJSBA made this recommendation to clarify the point.
While the rule explicitly permits the filing of an order to show cause, which has already been instituted in several counties, the Court did not accept the NJSBA’s recommendation that a mediator be permitted to apply to the court of appointment for a summary disposition regarding the reasonableness of the fee and an order for payment. The NJSBA argued that the proposed rule requires mediators to expend two hours in free mediation and, therefore, requiring mediators to expend additional hours to file suit in order to collect payment for court-ordered mediation would discourage individuals from serving in this role and further crowd the court’s calendar.
Finally, the association pointed out that in Rule 1:40(b)(1), civil mediators are exempt from additional specialized training if they want to serve in the family part, but that family part mediators are required to take a supplemental civil mediation course. It recommended a change to align the qualifications for all mediators similarly and not require the additional course. That change was not accepted by the Court.
Chapter 3 Amendments
A number of rules were amended to accommodate changes resulting from bail reform. The Court also updated the rules to remove references to capital punishment, including the deletion of Rule 3:13-4, additional discovery in capital cases, and Rule 3:21-4A, addressing sentences for murder. A newly created rule addresses the disclosure of pretrial services programs, clarifying that they are not to be used by the prosecution to prove any crime or offense alleged in the pending case and enumerating instances where disclosure may be made.
Chapter 5 Amendments
In addition to the general recommendations made in Chapter 1 relative to the family part, the changes in Chapter 5 deal with a new change in the child support termination law and addresses specific forms of relief in same-sex dissolution actions.
With respect to the dissolution or termination of a civil union or domestic partnership, Rule 5:4-2 requires a separate cause of action for each relationship. The association supported this recommendation because it encourages that each official relationship be specifically addressed and serves the purpose of better educating the bar regarding the multiple relationship statuses many same-sex couples have acquired over the years. It also helps define the party’s rights and obligations relative to the different types of relationships that exist.
Similarly, Rule 5:7-1 ameliorates concerns where an out-of-state couple seeks dissolution of a New Jersey civil union, but lives in a state where civil unions are not recognized. They will now be permitted to file an action in New Jersey, a rule that the association supported to remedy this inequity in the law.
Rule 5:7A addresses domestic violence restraining orders and was amended to include, in the first reference, that an application for a temporary restraining order may be made before a judge or domestic violence hearing officer. The NJSBA supported this recommendation, and urged the Court to include the term “hearing officer” throughout the rule, but it was not adopted.
With respect to the submission of a parenting time/visitation plan following an unsuccessful mediation, the Court amended Rule 5:8-5 to include a 14-day timeframe to file the plan. The association suggested this could be a difficult timeline to meet, and recommended it be extended to 30 days. The amendment was not accepted.
The newly drafted Rule 5:6-9 was highly contested by the association because of what it deemed underlying inconsistencies between the Court’s interim protocol and the statute. The rule addresses termination of child support obligations to reflect the recently passed legislation terminating child support unless certain proofs are provided by the custodial parent. N.J.S.A. 2A:17-56.67, et seq., was amended and the Administrative Office of the Courts issued interim protocol to comply with this change in the law until a new rule could be drafted. The association objected to several parts of the interim protocol in a letter to Acting Administrative Director of the Courts Judge Glenn A. Grant.
The association cautioned that it believes the language of the rule is misleading and implies that a child is emancipated.
Two of the association’s recommendations were incorporated—language explicitly stating that the rule applies “unless otherwise provided in a court order” and clarifying that only a judge, and not a hearing officer, can terminate child support obligations. But the association took issue with the fact that the language stating: “In no case shall a child support obligation extend beyond the date the child reaches the age of 23” remains in the current rule. Furthermore, the Court kept language in the rule that healthcare coverage would also be terminate by operation of law, but the association pointed out that requirement is not contained in the statute. Finally, the association suggested that Section g, dealing with child support orders after age 23, be made more prominent in the rule and that there be a clarification regarding how such maintenance would continue when applicable. The association continues to work with the Administrative Office of the Courts to remedy these concerns.
Other Amendments
Other amendments include an amendment to Rule 4:21A-2 regarding arbitrators. The rule was amended to increase the experience requirement from seven to 10 years for individuals seeking to be arbitrators and to provide that certified civil trial attorneys with requisite experience are entitled to automatic inclusions of the roster. The association opposed—and the Court did not approve—an increase in the trial de novo fee and the arbitrator compensation per diem rate.
The Court also amended Rule 7:4-5 regarding bail forfeiture.
The rule changes are available at judiciary.state.nj.us under “Notices.”