Capitol Report: NJ Supreme Court issues rules recommendations, seeks comments

By NJSBA Staff posted 02-18-2021 10:03


The state Supreme Court released a series of written comments on the 2019-2021 reports of six committees recommending amendments and non-rule administrative actions. The reports of the Complementary Dispute Resolution Committee; Criminal Practice Committee; Committee on Diversity, Inclusion, and Community Engagement; Committee on the Rules of Evidence; Family Practice Committee and Municipal Court Practice Committee are available for review and comments, which must be submitted by March 26. The New Jersey State Bar Association (NJSBA) will review the proposals and expects to submit comments.

Complementary Dispute Resolution Committee Report

The committee recommended proposed rule amendments to promote wider use of the virtual training platforms, modify the six-hour course requirement for applicants who received their 40-hour training out of state or more than five years prior to application to the roster; and to amend the Completion of Mediation Form XIX to include instructions on how and to whom it should be submitted and to remove questions from the form regarding standards of conduct. It also made a non-rule amendment to the Order of Referral to Post Matrimonial Early Settlement Panel Mediation Program to include the contact information of the court staff to whom the form is to be submitted.

Criminal Practice Committee

Recommendations from this committee include the electronic processing of search warrants in the Judiciary’s Search and Data Warrant System. The recommendations were made following the Supreme Court’s April 1, 2020, order that relaxed and supplemented some of the rules. The committee recognized the efficiency of the electronic system. The amendments do not incorporate the rule that governs search warrants issued by municipal court judges; however, it is recommended that if they are later authorized to issue search warrants in the computerized system, this rule be amended as well.

Additional amendments are proposed to remove language regarding the prosecutor’s discovery being delivered to the criminal division manager’s office in light of the electronic exchange of this information between parties. If it cannot be done electronically, the language provides for discovery to be made available at the prosecutor’s office. Similar language is proposed for defense counsel, as well.

With regard to R. 3:14-4, the proposal is to remove the requirement to transmit documents when cases are transferred to another county in light of eCourts.

Finally, amendments are proposed to R. 3:21-4 in accordance with the Supreme Court’s holding in State v. Courtney, 243 N.J. 77 (2020). The rule implements procedures to resolve extended term eligibility disputes where there exists a negotiated disposition under N.J.S.A. 2C:35-12.

The committee made a non-rule recommendation to modify the presentence investigation report format regarding arrests that do not result in convictions, which it felt could lead sentencing courts to “unconsciously” consider these arrests. The proposal is a separate new section for arrests not resulting in conviction.

Committee on Diversity, Inclusion, and Community Engagement

Recommendations were made “in its advisory role to the Court… to facilitate the administration of justice through equitable and bias-free courts.” Its recommendations include:

  • A continuation of the use of virtual proceedings to expand access to the courts;
  • Updated style guides to provide guidance about diversity-inclusive communication practices;
  • A review of public information to ensure material is conveyed in plain language and in understandable formats;
  • Collecting demographic data as part of the annual attorney registration process;
  • An expansion of diversity and inclusion training for law clerks; and
  • Allowing name changes to be effective immediately and excluded from public access.

Committee on the Rules of Evidence

The committee proposed an amendment to the tender years hearsay exception, or N.J.R.E. 803(c)(27), regarding statements by a child relating to a sexual offense. The recommendations are a result of deliberations following the Supreme Court’s request in State in the Interest of A.R., 234 N.J. 82 (2016) regarding the competence of a child witness. The committee recommends clarification of the standard of proof for finding a probability of the prior statement’s trustworthiness by a “preponderance of the evidence” rather than the current finding that “there is a probability that the statement is trustworthy.”

With regard to the Sixth Amendment confrontation clause limiting the admissibility of an incompetent child’s out-of-court statement, the committee voted that the incompetency proviso would apply in civil cases, but not criminal cases. The proposal specifically permits the child to testify when the child’s incompetence is due to an inability to understand the duty to tell the truth and not due to an incapacity to express himself or herself so as to be understood.

Family Practice Committee

A number of proposals were recommended, including:

  • Revisions to the rules governing name change applications for minors to streamline the process when possible and to protect the minor’s privacy;
  • Clarifications that post-judgment dissolution matters can be placed on the arbitration track and clarification of prerequisites and time goals for arbitration track matters;
  • Amendments to implement the Automated Juvenile Delinquency Complaint Process and the Juvenile Detention Risk Screening Tool;
  • A new rule for co-parent adoption;
  • Modifications to clarify the duration of child and medical support obligations to conform to recent statutory changes;
  • The elimination of automatic suspension of driver licenses for non-payment of child support, consistent with recent statutory changes;
  • Amendments to limit the venue choices for adoption actions;
  • Updates to the notice requirements for adoption proceedings, consistent with the E.V. case; and
  • Confirmatory language that self-represented parties are entitled to discovery in Division of Child Protection and Permanency (DCP&P) cases, and proposed processes to provide it.

Municipal Court Committee

The proposed changes in this report relate to rules regarding pleas by mail, which the NJSBA has been closely monitoring. There is also a recommendation to conform the rules to the recent statutory changes eliminating the ability of municipal judges to suspend driving privileges for certain offenses, such as disorderly persons or municipal violation offenses.

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