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Key Developments

  • 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.

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