- 5/25/21 - Notice to the Bar and Public – Dismissal of Nearly 300,000 Municipal Cases More than 27 Years Old and Recall of Driver’s License Suspensions
There is a site within this notice that links to a Q & A about cases which have been dismissed and, if not, the likely reason why:
Supreme Court Dismisses Thousands of Old Cases and License Suspensions
- 5/13/21 - New Law Helps Remove Barriers to Occupational and Professional Licensing for Those with Conviction Records
On May 11, 2021, Governor Murphy signed into law a bill that makes it unlawful for occupational and professional licensing boards to discriminate against applicants and licensees on the basis of criminal records or such conduct. The new law requires professional and occupational licensing boards under the Division of Consumer Affairs and other executive branch state agencies to consider whether an individual’s offense has a “direct and substantial” relationship to the activity regulated by the board or is inconsistent with public safety.
Previously, a board was permitted to suspend, revoke, or refuse to issue or refuse to admit a person to an examination for any certificate, registration, or license if they had been convicted of or engaged in acts considered a crime or offense of “moral turpitude” or “relating adversely” to the activity regulated by the board.
Under the new law, licensing boards are required to make individualized determinations in deciding whether to disqualify an applicant due to a conviction. The board must consider the nature and seriousness of the offense, including time passed since the conduct; the relationship of the crime or offense to the purposes of regulating the profession or occupation; any evidence of rehabilitation of the person since the prior conviction; and the relationship of the crime or offense to the ability, capacity, and fitness required to perform the duties and responsibilities of the occupation.
Licensing boards must also provide the applicant with written notice or “preliminary determination” of a disqualifying conviction, which explains how the crime or offense has a direct or substantial relationship to the regulated activity or that the certification, registration, or licensure would be inconsistent with public health, safety, or welfare. If the individual is denied after a hearing, they must be notified in writing of the grounds and reasons for the denial or disqualification, the earliest date they may be eligible to reapply, and that additional evidence of rehabilitation may be considered at that time.
Murder and any sex offense that requires registration, however, carries an automatic presumption that there is a direct or substantial relationship to the activity regulated by the board. Also, individuals convicted of embezzlement, fraud, or crimes involving public corruption or theft within the past five years preceding the application may be denied licensure by the Division of Local Government Services in the Department of Community Affairs.
The new law is effective August 9, 2021.
- 3/8/21 – Notice to the Bar – Guardianships of Incapacitated Adults – Exemption for Madden Requirements for Attorneys Who Provide Pro Bono Services in Adult Guardianship Matters; Relaxation of Rule 1:21-12
By Order dated March 1, 2021, the Supreme Court has relaxed R.1:21-12 to exempt from Madden mandatory pro bono requirements attorneys perform who are appointed by the court to serve as:
(i) attorney for an alleged incapacitated person;
To qualify for the exemption, lawyers must provide at least 25 hours of service in one calendar year which exempts the lawyer for the following year. Extension of the Madden exemption is designed to encourage more attorneys to represent individuals in these matters.
(ii) Guardian Ad Litem in a guardianship matter;
(iii) temporary pendente lite guardian;
(iv) permanent guardian of an adjudicated incapacitated person; or
(v) special medical guardian
- 2/23/21 - Marijuana Legalization Laws Passed with Youth Protections Against Law Enforcement Abuses and Prosecution
On Monday, February 22, Governor Murphy finally signed into law a set of bills that legalize possession and use of marijuana for those 21 and older, stops arrests for those legally possessing up to six ounces, and sets civil penalties for those under 21 who possess or use the drug.
Although voters approved a ballot measure to legalize possession and use of marijuana for those 21 and older in November, for months, the legislature could not come to a resolution on several issues, including taxation and licensing. The bill was further held up after the governor’s office pressed for provisions to address underage possession. Ultimately, a “clean-up” bill to address those issues was passed in voting sessions on February 22.
Advocates had long warned that legalization but allowing continued enforcement of drug laws against young people would further harm communities already damaged by decades of racism through a failed drug war, aggressive policing and over-incarceration. While drug usage rates are roughly consistent across racial groups, Blacks are three times more likely to be arrested.
Now, those under 21 who are found to possess or use marijuana will be subject to limited penalties. Those penalties will allow law enforcement officers to issue written warnings, and with subsequent warnings, to notify the parents of those under 18, and to provide community and substance abuse resources. Any records of written warning will be confidential and destroyed or deleted when the individual turns 21.
The bill also places further limitations on enforcement. Police may not initiate a stop without reasonable articulable suspicion or probable cause, initiate a search of an individual unable to give consent due to age, or detain a person for longer than required to issue a warning or write-up. Officers who violate these protections face criminal penalties depending on the nature of the deprivation of individual civil rights.
Law enforcement officers engaged with youth for the purposes of issuing written warnings would be required to record interactions using body-worn cameras. Officers would also be subject to training on interactions with underage users, including recognition of and methods to “address and avoid racial disparities and implicit bias” and interacting with vulnerable juvenile populations.
The new law stops arrests going forward, but those who have been subject to recent charges—which did not stop while the bills were considered by the legislature and prior to passage—do have some recourse. Earlier this year provisions were enacted downgrading past marijuana offenses for purposes of expungement, and providing for expedited expungement and sealing of marijuana-related offenses soon after conviction.
- 1/19/21 - State v. E.J.H. - In this published decision, the App Div panel held that where the defendant agreed to supervised parenting-time terms that included video cameras in the location of the visits, so that the plaintiff could observe the parenting-time. While the child was visiting defendant, he turned to the camera, made comments directed at the plaintiff followed by a lewd hand gesture. The criminal trial court held that defendant was entitled to first amendment freedom of speech in his own home, and that since he did not text or email her directly, the statements and hand gesture were not a prohibited communication (or at least he was not on notice that it was prohibited contact). The App Div, noting that defendant consented to the camera requirement in the FRO, and analogized the statements and hand gesture specifically directed at the protected party as a communication much like a video sent as an attachment to an email or text. That App Div, in holding that this was prohibited communication, pointed out that the defendant did this with knowledge that the cameras were on and working and that presumptively the protected party would receive the message.
- 1/7/21 - New Jersey Launches Electronic Filing System for Expungements
The New Jersey Courts recently announced the statewide launch of its eCourts Expungement System developed in accordance with recent amendments in the law to help increase efficiency of the expungement process. See N.J.S.A. 2C:52-10.1. The new system allows attorneys and pro se petitioners to create and file petitions for traditional, clean slate, and cannabis-related expungements, and introduces a number of efficiencies including accessibility of state records databases, document creation for expungement petitions, and automatic service of applications on numerous parties.
Attorneys can access the system through eCourts, and pro se users can create an account through the New Jersey Court’s Self-Help Center (“Submit Expungement Petition Online” under “COVID-19 Self-Help Resources”).
Users can enter a municipal or superior court case number, and the expungement system will search and pull the petitioner’s court records from criminal, municipal and family court databases. Petitioners will have the ability to enter additional information not captured by the expungement system database; review and upload additional or supportive documents; and select or deselect which cases should be included on the proposed final order.
Once the petition is submitted and verified by the petitioner, the system will automatically create an order for hearing and serve the necessary parties with the documentation. It will also serve those parties if a final order of expungement is entered, and will provide a copy of the order to the petitioner.
The expungement system does not provide eligibility advice or inform users as to whether any particular cases or any application is eligible for expungement. Users should consult with attorneys or advocates as to their eligibility prior to using the system or use other eligibility resources such as LSNJ’s CYRO eligibility interview. After filing, the prosecutor’s office will continue to be responsible for review of the petitioner’s application and to confirm eligibility and will object if it determines that an application is ineligible for expungement.
The Expungement System should make the expungement process easier for many who have access to computers and the internet. Previously, petitioners, even those who were filing through the JEDS system, were required to file several copies of their written or typed expungement applications and then serve copies on many other parties via certified mail, with return receipt requested, at a substantial cost. The court, however, will still accept paper expungement applications, important for those who may not have access to a computer or the internet.
User guides are available on the Court’s website. LSNJ’s eligibility tools and resources are available at LSNJLAW's Clearing Your Record Online.
- 1/5/21 - Order – Further Revisions to the List of Municipal Court Judges Authorized to Handle CJP/First Appearances – Twelfth Supplemental Order to the Omnibus Authorization Order
- 12/30/20 - Order - Further Amendments to the Omnibus Order Designating Municipal Court Judges Authorized to Handle Civil Commitment Hearings – Camden Authorized Judges
- 12/24/20 - Notice to the Bar – Modification of Method of Making Madden Pro Bono Assignments to Attorneys to Represent Parolees in Parole Revocation Hearings – Statewide Pilot Program
- 12/10/20 - Retired Attorneys – Permission to Provide Pro Bono Services; Exemptions From Annual Assessment Fee and Continuing Legal
- 10/21/20 - Notice and Order - Continuing Legal Education – Requirement of Two Hours (Per Two Hour Reporting Cycle) of Courses in Diversity, Inclusion, and Elimination of Bias; Judiciary to Offer Real-Time Virtual Courses on Implicit Bias and Elimination of Bias
- 10/21/20 - Notice and Order - Landlord/Tenant – Exemption from Madden Requirements for Attorneys Providing Pro Bono Representation in Residential Eviction Actions; Relaxation of Rule 1:21-12
- 5/8/20 - The N.J. Supreme Court has issued an emergency Order temporarily allowing attorneys licensed in another United States jurisdiction to provide pro bono legal services to individuals and small businesses affected by the public health crisis caused by COVID-19.The Order provides that such attorneys who are not disbarred, suspended from practice, or otherwise restricted from practice in any jurisdiction, may seek admission to practice. Additionally, the Order requires supervision by an attorney licensed and in good standing in New Jersey, either through a legal services or public interest organization or law school clinical or pro bono program certified under R. 1 :21-11 (b)(1) or (b)(3), or independent of any such organization or program.
- 4/28/20 - In the Matter of the Adoption of a Child by C.J. — In a reported decision involving a stepparent adoption, the Appellate Division held that a pro bono lawyer, assigned off the Madden list, has an obligation to inform the court if he or she is not able to handle an assigned matter professionally due to a lack of expertise and inability to obtain sufficient knowledge to represent the client effectively, and is also unable to retain a substitute attorney knowledgeable in the area. Sua sponte, the court determined that appellate counsel was ineffective and new appellate counsel must be assigned. The court adjourned the appeal to allow for appointment of substitute counsel.
- 4/16/20 - Morales-Hurtado v. Reinoso – The NJ Supreme Court affirmed a decision of the Appellate Division that that the cumulative effect of many errors in a personal injury action deprived plaintiff/appellant of a fair trial. The Court did not issue a plenary opinion but rather affirmed the judgment of the Appellate Division substantially for the reasons expressed in that court’s opinion. 457 N.J. Super 170 (App. Div. 2018).
Among those reasons was defense counsel’s cross-examination of plaintiff regarding when plaintiff came to the United States, his citizenship, whether he had been in the United States continually since his arrival, and his need for an interpreter. The Appellate Division determined that those questions raised the same concerns expressed in State v. Sanchez-Medina, 231 N.J. 452, 463 (2018), where the Court noted that “evidence of a defendant’s undocumented immigration status could appeal to prejudice, inflame certain jurors, and distract them from their proper role in the justice system.” The appellate court found that plaintiff’s attorney did not open the door to those questions, which were irrelevant. The App. Div. noted that, even if the questions could be considered relevant, their probative value was substantially outweighed by the risk of undue prejudice. See 457 N.J. Super. at 192.
- 4/6/20 - July 2020 Bar Exam Cancelled; R. 1:21-3 Temporarily Relaxed (from NJ Courts) - The Court has issued an Order cancelling the July 2020 bar exam. The Court and will reschedule the exam for a later date in the Fall (to be determined). In the interim “[o]n a temporary basis, Rule 1:21-3 is relaxed and expanded for 2020 law school graduates who have not previously taken a bar examination. Those graduates may be authorized to practice law under the supervision of a licensed attorney who has been licensed to practice for at least three years.”
- 3/30/20 - Operational Adjustments for Several Aspects of Civil and Criminal Practice (from NJ Courts)
- 3/27/20 - Current COVID Operational Adjustments Announced on Vicinage Webpages Compiled March 27, 2020
- 3/25/20 - New interim process for filing emergent applications in court - The Supreme Court has approved interim procedures for use during the COVID-19 crisis to support prompt filing and handling of certain emergent applications that cannot be filed electronically, including making available the option of submitting such emergent applications by email.
- 3/23/20 - New Jersey Passes Law to Temporarily Allow Remote Notarization
Governor Murphy recently signed legislation to allow notary publics and certain other authorized officials the ability to notarize documents electronically, in light of the COVID-19 epidemic. (In New Jersey, attorneys, judges, mayors, commissioners, sheriffs, clerks of the court, legislators, and certified court reporters, are authorized to administer oaths or validate affidavits and affirmations, and therefore fall in the “other authorized officials” category. See N.J.S.A. 41:2-1.) Under the new law, an individual need not be physically present before a notary to have a document notarized, as long as they can provide satisfactory evidence of their identity.
“Satisfactory evidence” means:
a passport, driver’s license, or government issued nondriver identification card, which is current or expired not more than three years before performance of the notarial act; another form of government identification issued to an individual, which is current or expired not more than three years before performance of the notarial act, contains the signature or a photograph of the individual, and is satisfactory to the notary public or officer authorized to take oaths, affirmations, and affidavits, or authorized to take acknowledgements; or a verification on oath or affirmation of a credible witness personally appearing before the notary public or officer and known to the notary public or officer or whom the notary public or officer can identify on the basis of a passport, driver’s license, or government issued nondriver identification card, which is current or expired not more than three years before performance of the notarial act.
Additional conditions must be met if the remote individual is located outside the U.S.
Notarial acts may be provided using communication technology for a remotely located individual if:
The notary public or officer or a person acting on their behalf must create an audio-visual recording (for example, through Zoom or Skype) of the performance of the notarial act.
- the notary public or officer
- has personal knowledge of the identity of the individual appearing before the notary public or officer, which is based upon dealings with the individual sufficient to provide reasonable certainty that the individual has the identity claimed;
- has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public or officer; or
- has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing;
- the notary public or officer is reasonably able to confirm that a record before the notary public or officer is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature.
The new law does not apply to documents that must be notarized and are related to adoption, divorce or other matters of family law.
It is effective immediately and will be withdrawn when the emergency public health order is rescinded.
- 3/16/20 - Notice - New Jersey Court Operations – COVID-19 CORONAVIRUS: Rescheduling of In-Court Proceedings Scheduled for the Week Beginning Monday, March 16, 2020; Continuation of All Critical Functions
- 3/13/20 - Judiciary Actions in Response to Coronavirus - Chief Justice Rabner suspended New Jury trials in response to the coronavirus. Court vicinages are also taking immediate steps to stagger schedules for landlord/tenant, small claims, and other non-jury court proceedings to avoid bringing together large numbers of people in confined areas.
- 3/11/20 - Continuing Legal Education -The NJ Supreme Court has issued an order relaxing the requirement that at least 12 CLE credits be earned through live classroom instruction. Until further notice, all twenty four credit hours for a compliance period can be earned through alternative verifiable learning formats. Attached is the link to the Court’s order.
- 1/17/20 - State v. Luis Melendez (A-22/23-18) – In an opinion issued on January 8, 2020, the N.J. Supreme Court held that a defendant’s answer to a civil forfeiture complaint cannot be introduced against that defendant in a related criminal trial.
The Court agreed with the Appellate Division that criminal defendants served with a civil forfeiture complaint should receive enhanced notice about certain issues. Defendants should be advised of the following: (1) they may wish to consult with a lawyer about how best to proceed; (2) the State may not use any statements made in an answer to a forfeiture complaint in its case in chief in a related criminal case; and (3) defendants may file a motion to stay the civil forfeiture action under N.J.S.A. 2C:64-3(f). Whenever practicable, the Stateshould also serve a courtesy copy of the forfeiture complaint on defense counsel when a companion criminal case is pending, so that counsel can offer basic legal advice or make a referral. The Court also referred the matter to the Clerk of the Superior Court to consider any changes to the standard form summons now in use. It also referred these issues to the Civil and Criminal Practice Committees for their consideration.
Nevertheless, the Court upheld the conviction deciding, in part, that introduction of this defendant’s answer in the criminal proceeding was harmless error given the other strong evidence against him.
- 1/10/20 - Expungement Reform Law Brings Sweeping Changes - On December 18, 2019, Governor Murphy signed into law a much-anticipated expungement reform bill (A5981/ S4154) that will bring sweeping changes to expungement eligibility and the expungement process. (Read more)
- 12/9/19 - In the Matter of the Expungement of C.P.M., Docket No. A-4210-18T3– Approved for Publication (December 6, 2019) – The Appellate Division reversed a trial court decision which granted a “crime spree” expungement under N.J.S.A. 2C:52-2(a) because it concluded that the petitioner’s convictions were not “closely related in circumstances.” (Read more)
10/15/19 - New Jersey Supreme Court Amends Rule to Expand Appearances By Law Graduates.
Effective October 8, 2019, R.1:21-3 now permits law graduates who are employed by law school affiliated nonprofit organizations to provide a greater range legal assistance to low and moderate income individuals served by those organizations. Specifically, such law graduates (not law students) are now permitted to appear without in-court attorney supervision in the Appellate Division, trial courts, and administrative agencies to represent clients if the matter does not involve possible incarceration of the client for more than six months, or a potential monetary award for or against the client of more than $100,000. Under prior rule, R.1:21-1(a), law graduates were limited to court appearances only to answer the calendar call on behalf of the organization’s clients. Permission for individual law graduates to make court and agency appearances concludes if the graduate fails to sit for and pass the first bar exam scheduled after graduation. Pursuant to the prior rule, a law graduate could not appear after failing to pass the New Jersey bar exam for a third time or after two years of employment following graduation, whichever was sooner.
9/10/19 - Notice to the Bar: Judiciary Adds Chatbot to Its Website - Launching the Judiciary Information Assistant (JIA) - Expanding the Use of Technology to Provide Quality Service - The New Jersey Judiciary has a new added a feature on the its website, the Judiciary Information Assistant (JIA). It is a “chatbot” that provides answers to commonly asked questions.
Customers can access JIA on the Judiciary's web page by selecting the "Chat" icon at the bottom right portion of the page.
JIA uses artificial intelligence to interpret customers’ inquiries and provides the best predefined answers to over 10,000 commonly asked questions.
- 6/17/19 - N.J. Dept. of Children & Families, D.C.P.P. v. L.O. - In a published opinion, the Appellate Division held that there is a right to counsel for an indigent parent or guardian – substantiated for child abuse or neglect – when exercising the right to an administrative hearing. The court held that “[c]ounsel should be made available for indigent parents and guardians both at the administrative level and in any appeal of right to the appellate division”. Specifically, the court agreed with appellant and amicus, ACLU, that:
(1) the consequences of a child-abuse substantiation are of sufficient magnitude to warrant the appointment of counsel for an indigent defendant; (2) that right attaches not only to the administrative proceedings commenced when the government agency provides the parent or guardian with written notice that an investigation has substantiated abuse or neglect, but also when a final agency decision has been appealed to this court as of right and it further includes the right to free transcripts; and (3) until such time as the Legislature makes provision, the right to counsel shall be enforced by courts and agencies through the appointment of pro bono counsel from the Madden list.
- 6/7/19 - Daedalus, a quarterly publication of the American Academy of Arts and Sciences, has devoted its Winter 2019 volume to identifying and critically examining the range of issues confronting low income individuals seeking civil legal assistance. Entitled “Access to Justice”, the significance of this overall problem is highlighted by the fact that the Academy has made this volume its first open access publication. Go to the Daedalus Access to Justice page to read any of its 24 articles.
- 5/7/19 - In the Matter of the State Parole Board’s Decision to Revoke Joe Brown’s Mandatory Supervision Status - A pro bono attorney, David G. Murphy (Reed Smith), won the release of his client after the Appellate Division reversed the State Parole Board’s decision to revoke parole. In an unreported opinion, the three judge panel found various procedural irregularities in the Board’s action and directed the Board to exercise “due haste to effect the appellant’s release.” The court acknowledged that Mr. Murphy was assigned counsel in the matter, appointed pursuant to Madden v. Delran, 126 N.J. 591 (1992).
4/8/19 - Under a legislative policy to avoid voter disenfranchisement, in 1974 N.J.S.A. 19:23-22.4 was amended to include Spanish as a primary language in sample ballots for 10% of registered voters for the election district in that county. In Correa v. Gross (Decided 4/8/19), the Appellate Division had the novel issue before them of whether sample primary ballots must be printed in Spanish and English for mail-in ballots and the larger question of whether the sample ballot intended to mirror the official ballot requires the official ballot to conform to the bilingual sample ballot. The Appellate Division noted the confusion between the various voting statutes but looked at the legislative intent and found that “it is clear that the Legislature has expressed a strong policy interest in protecting Spanish-speaking voters from being disenfranchised” and has “adopted a panoply of protections in voting districts where the primary language of at least ten percent of registered voters is Spanish.” The Appellate Division agreed with the plaintiff that there would be an absurd result if the sample ballot was accessible to Spanish-speaking voters but the official ballot was not. If the Appellate Division’s interpretation of the legislative intent was incorrect, the Court noted that the Legislature is free to amend the statutes to clarify its intent. The matter was remanded to the trial court for an order conforming with this opinion.
3/26/19 - State of New Jersey v. Finneman (decided March 22, 2019) - In a reported decision, the Appellate Division reversed and vacated the municipal court conviction of the indigent defendant for the petty disorderly offense of harassment. The defendant was represented by a public defender in that proceeding. On his appeal de novo, the defendant had two separate pro bono assigned counsel, each of whom petitioned the court and were allowed to withdraw from the representation. The conviction was affirmed by the Law Division despite the defendant being unrepresented and requesting counsel. In that latter proceeding there was no argument by anyone on the defendant’s behalf. He was summarily found guilty and sentenced to a thirty-day suspended sentence, probation for six months, required to undergo a psychiatric evaluation, and to pay a $150 fine. The judge also refused to stay the sentence.
After the second counsel was granted the withdrawal , the defendant asked the judge if he would be appointed new counsel. The judge did not answer but the withdrawing lawyer said that he thought the judge would do so. At his final trial three months later the defendant did not have counsel . When he asked about it, the prosecutor said that she thought he “was going to proceed on his own.”
Recognizing that the public service required of assigned counsel creates certain difficulties, and particularly with this defendant, the App. Div. nevertheless determined that the defendant was he was entitled to representation as he faced “consequences of magnitude.” Here, the “defendant never expressed an interest in representing himself” and so the trial court should have taken further steps before promptly relieving the second counsel from representation. As for the first attorney’s withdrawal, it was done without notice to the client and was based on a claim that the defendant had wanted him to act in violation of the RPCs. The App. Div. agreed that that would be a sound basis for withdrawal, but wrote that assigned counsel’s further claim that he lacked experience was not a “meritorious argument.” The opinion noted that “the pro bono assignment system works because attorneys familiarize themselves with the relevant area of law” and so endeavor to “competently represent the client to the best of their ability.” With regard to the defendant’s purported waiver of his right to counsel and to represent himself, the opinion (citing State v. Reddish) stated that before granting such a request trial courts must ascertain that the defendant understands the nature and consequences of such a waiver. It then specified the elements of that inquiry. Finally, the court recognized while that a defendant’s own conduct could result in the forfeiture of representation that did not happen here.
- 1/28/19 - The New Jersey Supreme Court recently ordered the dismissal of more than 780,000 minor municipal court matters older than 15 years, including parking tickets and some minor traffic violations. The effort was designed in part to help address the problem of mounting court debt or fines and fees which have created access to justice issues for many, most particularly those of low-income statewide.
1/8/19 - In the Matter of Expungement of the Arrest/Charge Records of T.B. (A-18/19/20-17) (079813) (decided January 8, 2019), the New Jersey Supreme Court held that successful drug court graduates presumptively meet the “public interest” when the court considers their expungement applications under N.J.S.A. 2C:35-14(m). Additionally, they are not required to provide copies of all relevant transcripts and reports otherwise required under In re Kollman for those convicted of third or fourth degree drug sale or distribution offenses.
In these consolidated cases, three separate drug court graduates sought review of appellate division determinations which denied their applications for expungement under N.J.S.A. 2C:35-14(m). The applicants had all previously pled guilty to third degree drug sale offenses, and the appellate courts held that they were required to meet the “public interest” -- a standard which applies to petitioners with such convictions before their petitions could be granted. This standard is imported into the drug court expungement statute by explicit language. As per N.J.S.A. 2C:35-14(m), “a person shall not be eligible for expungement . . . if the records include a conviction for any offense barred from expungement pursuant to subsection b or c of N.J.S.A. 2C:52-2.”
Under subsection c of N.J.S.A. 2C:52-2, “in the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes involve . . . any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner's character and conduct since conviction.” (emphasis added).
To be sure, meeting the “public interest” is an additional burden on applicants, and can be a heavy lift for drug court graduates who may have multiple such offenses and would otherwise have been entitled to an “expedited” expungement process. The Supreme Court in Kollman previously held that applicants bear the burden of proof in public interest expungements and that they are additionally required to submit pre-sentence investigation reports and trial and sentencing transcripts to the expungement court in addition to their petitions.
Before the Supreme Court, petitioners and amicus argued that the additional requirement of meeting the public interest was an undue additional burden on drug court expungement petitioners who had already been through an unusually rigorous court-ordered program of rehabilitation and that the statute could be interpreted to not require as drug offenses are not completely “barred” from expungement and therefore not subject to the expungement prohibition.
Ultimately, given the additional burden on what should be an expedited application, the exceptional nature and the rigor of the drug court program, the likelihood that the court is already very familiar with and has ready access to criminal case records of drug court graduates, the Supreme Court held that it shall be presumed that expungement is consistent with the public interest if the person seeking expungement has been discharged upon graduation from a term of drug court and that they are not required to provide additional documents per in re Kollman.
- 10/20/17 - The 2017 National Celebration of Pro Bono begins this Sunday (October 22). Continuing through October 28, this celebration is a series of opportunities and events highlighting the wide range of pro bono activities cooperatively undertaken by legal service providers, law firms, corporations, individual lawyers and others helping those in need of legal assistance.
For many attorneys in New Jersey, pro bono is not limited to one annual, weekly celebration, but is a long term commitment of their energy, enthusiasm, talent, training and time. They understand the professional responsibility of RPC 6.1, “to render public interest legal service” and have incorporated it into their practice. Their contributions to secure equal justice for those who are not otherwise able to afford legal help is exemplary, upholding the highest ideals of our profession.
For those new to pro bono, the National Celebration is the perfect opportunity to discover what so many of your colleagues already have, the sense of satisfaction and accomplishment derived from providing pro bono legal assistance. By doing so, you can help close the “justice gap”, the gap between low income individuals who need and financially qualify for legal assistance and those who actually receive such help. That gap is widening; too many individuals and families cannot have their legal needs met because there are too few lawyers and other resources available to meet them.
The National Celebration is a time when the entire legal community can join together in a mutually supportive effort to offer legal assistance to those otherwise unable to afford it. To this end, Legal Services of New Jersey invites you to partner with programs in the statewide Legal Services network to provide pro bono assistance to our respective clients. Doing so can be a life affirming professional experience, and a life changing event for a client in need. All are beneficiaries.
- 4/20/17 - The New Jersey Administrative Office of the Courts has issued Directive #03-17 establishing a process and criteria for waivers of filing fees. A Supreme Court Order accompanying the Directive specifies that fees are waivable for indigent litigants whose household income does not exceed 150% of the federal poverty level and who have no more than $2500 in liquid assets. The Directive contains a uniform fee waiver application that is to be used for all fee waiver requests in the Supreme Court, Appellate Division, Superior Court and Tax Court.
The Directive further specifies that Legal Services of New Jersey, its associated regional legal services programs, and other public interest organizations and programs certified pursuant to R. 1:21-11 for fee waiver status are exempt from filing fees. Accordingly, neither they nor their clients are required to file for a fee waiver in individual cases.
- 8/9/16 - The New Jersey Supreme Court has revised the Code of Judicial Conduct, effective September 1, 2016. In a Notice to the Bar issued by the AOC, the revisions “set more clearly defined guidelines for avoiding the appearance of impropriety in both judicial and personal conduct” and “a more detailed guide for judicial disqualifications.” Of particular significance to the pro bono community is new Canon 4, Rule (D) (4) - A judge may encourage lawyers to provide pro bono legal services. There is no official commentary to this rule.
- 7/26/16 - In the Matter of the Adoption of a Child by J.E.V. and D.G.V. - In a case of first impression in New Jersey, the N.J. Supreme Court has determined that indigent parents who face termination of parental rights in contested proceedings under the Adoption Act, N.J.S.A. 9:3-37 to -56, are entitled to counsel under Article I, Paragraph 1 of the State Constitution. The Court held that an indigent parent who faces termination of parental rights in a contested private adoption proceeding has a right to appointed counsel under the due process guarantee of the New Jersey Constitution. In so holding, the Court reaffirmed earlier decisions that the termination of one’s parental rights plainly “implicates a fundamental liberty interest” by completely and permanently severing the tie between parent and child. The Court recognized that without the assistance of counsel to prepare for and participate in the hearing, the risk of an erroneous outcome is high. Accordingly, the parties are best served when both sides present arguments with the help of able attorneys; the outcome not only protects the parent’s rights and the child’s welfare, but also helps bring finality to an adoption proceeding. The Court’s decision follows other states which have also found that an indigent parent is entitled to counsel in a private adoption matter, based on either due process principles under their state constitutions or applicable statutes. With regard to when the appointment of counsel arises, the Court said the critical event in the timeline occurs when the parent formally objects to the adoption agency’s decision to proceed toward adoption. Finally, because of the complicated nature of termination proceedings the Court emphasized the need for the appointment of attorneys with the experience to handle these matters, such as those in the Office of Parental Representation in the Public Defender’s Office. But noting that office’s current lack of funding, the Court declined to order it to take on these cases calling instead on the Legislature to address this issue. In the interim, however, the Court said it would turn to private counsel for assistance, inviting pro bono organizations to offer their services and suggesting that it “may need to assign counsel through the Madden list,” although that “is not an ideal solution.”
- 5/27/16 - The Administrative Office of the Courts has promulgated new procedures to implement changes in the expungement law which cover Drug Court expungements and expungement of arrests that did not lead to conviction.
- 2/3/16 - All certified pro bono service organizations must annually file a renewal certification with the New Jersey Judiciary by April 30th. For currently certified organizations, the online renewal application is now available on the pro bono portal of the Judiciary’s website. There is a link to the renewal application from the site; it can also be directly accessed at the Judiciary's Pro Bono Search Organization page. As noted, the renewal date is no later than April 30, 2016.