The New Jersey State Bar Association (NJSBA) is expected to testify before the state Supreme Court on Tuesday regarding several rule amendments and committee reports on complementary dispute resolution; criminal practice; diversity, inclusion and community engagement; rules of evidence; family practice; and municipal court practice. The Court will also address the recently released report of the Special Committee on Landlord Tenant. The NJSBA submitted comments to a number of reports, and members will be appearing virtually on its behalf in support of its comments.
Report of the Committee on Rules of Evidence
Former NJSBA Trustee Craig Hubert and President-elect Jeralyn L. Lawrence are expected to testify on behalf of the NJSBA regarding N.J.R.E. 803(c) (27) and the collaborative law privilege. The NJSBA generally supports the proposed rule change, which seeks to clarify that a prior statement by a child must be found trustworthy by a preponderance of the evidence to be admitted. The rule change amends the current standard that is based on probability. There is a concern, however, that the rule’s prohibition against disqualification of a child witness by virtue of any of the competency requirements of Rule 601, without delineating any of its subsections, should remain intact and not be limited to just subsection (b) of Rule 601.
Lawrence will testify regarding the collaborative law privilege. The NJSBA objects to the committee’s rejection of this privilege. The NJSBA submitted this section to the committee to codify into the evidence rules, which have been enacted by statute. The proposed section follows the model of the mediator privilege, which was codified following the enactment of the Uniform Mediation Act in 2004. The Collaborative Law Act was enacted in 2014 to recognize the dispute resolution method known as family collaborative law. An evidentiary privilege was included in the statute to protect participants from the disclosure of any communication during this process, similar to a mediator’s privilege. The NJSBA seeks to incorporate a similar privilege that would “allow participants to engage candidly in the process to facilitate resolution.”
Report of the Committee on Diversity, Inclusion and Community Engagement
NJSBA Trustee Jeffrey Fiorello is expected to testify regarding the comments on several recommendations contained within this report.
- Recommendation 2021:05 – The NJSBA strongly supports this recommendation to provide a means for attorneys to self-report diversity and other demographic data as part of the attorney registration process. It further recommends that the information include gender identity and expression.
- Recommendation 2021:08 – The NJSBA supports this recommendation to expand professional development opportunities for law clerks across various dimensions of access to the courts and procedural fairness, including basic LGBTQ+ inclusive courtroom practices and quality services.
- Recommendation 2021:10 – The committee recommends the establishment of a working group to support and expand current internal efforts to enhance the administration of justice, procedural fairness and public confidence in the FD docket. The NJSBA supports this recommendation and urges consideration of previously submitted comments regarding the issue, including requiring parties to serve all filed documents on the other party, permitting a plenary hearing for appropriate matters, including additional or clarifying language in certain standard FD forms, routinely allowing resolution by consent order and standardizing the handling of emergent applications.
- Recommendation 2021:11 – This recommendation classifies name change court filings as non-public records under Rule 1:38. The NJSBA strongly supports this recommendation as a measure to protect transgender and non-binary individuals who are seeking a name change from harassment, intimidation, discrimination and violence.
- Recommendation 2021:12 – The NJSBA also supports this recommendation to make name change judgments effective immediately upon entry. As the Judiciary has eliminated the publication requirements for name changes, the 30-day waiting period reflected in Rule 4:72-4 serves no purpose. The NJSBA further recommends that Rule 4:72-4 be amended to remove the gendered language contained in its current form, which has the effect of unintentionally excluding non-binary individuals.
Family Practice Committee
NJSBA Trustee Amy Vasquez is expected to testify generally with respect to both the initial and supplemental report to recommend consideration of two additional clarifications to Rule 5:6-9 to ensure fairness and consistency. She will encourage confirming that child support obligations cease upon the termination of parental rights and that child support obligations for children placed outside of the home by the Division of Child Protection & Permanency be terminated or continued in the same manner and for the same reasons as child support obligations for children not outside the home.
Municipal Court Practice Committee
Past Municipal Court Practice Section Chair John Menzel is expected to testify on Rule 7:6-3(c)(1)(D) and –(d)(3). Regarding the former, he will suggest that defendants who are represented by an attorney should be permitted to submit verification of the information sought with their plea in lieu of a signed certification. The NJSBA noted that this would streamline the submission process and ensure that all defendants are subject to the same requirements. Regarding the latter, the NJSBA suggested a modification to the proposed rule to require that attorneys representing any of the parties in the matter receive a copy of the court’s decision, in addition to their clients, and to require that notice of the court’s decision be provided in three different ways. Notice would include ordinary mail, to overcome any unknown or unanticipated technological limitations and provide the best opportunity to ensure that notice of the court’s decision is actually received.
Report of the Judiciary Special Committee on Landlord Tenant
Former Trustee Diane K. Smith is expected to testify in support of the NJSBA’s comments to several recommendations contained in the report. The Association noted that the procedures set forth by the special committee will facilitate representation by attorneys, particularly pro bono attorneys, who often require more information and time to enable them to provide representation to tenants. It supports the recommendations and offers suggestions in an effort to further improve the process and procedures, and ensure fairness for all parties involved in landlord tenant eviction cases.
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.