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Key Legal Developments

 
 



COVID-19: Compilation of NJ Court Orders, Directives & Notices


08/30/21: Notice to the Bar - Directive #24-21 - Expungement of Certain Marijuana/Hashish Cases - On August 30, 2021, the Court announced new procedures for obtaining a certification of expungement for certain marijuana and hashish cases in accordance with the Marijuana Decriminalization Law.

08/02/21: New Jersey Division of Child Protection and Permanency v. D.H. and T.W. and J.K. and K.M. - These consolidated appeals concern a child, Dylan, who was born in February 2016 to Appellant D.H., the child’s father, and co-appellant T.W., the child's biological mother. The Family Part terminated the rights of defendant-parents after the most recent trial, and the parents appealed. (Read more).

07/28/21: P.L.2021, c.154 - NJ Assembly Bill 5598 was introduced to the Assembly Health Committee on May 12, 2021. The primary sponsors were Representatives Herbert Conaway, Gabriela Mosquera, and Christopher Tully. Co-sponsors were Representatives Valerie Huttle, Sterley Stanley, Lisa Swain, Verlina Reynolds-Jackson, Britnee Timberlake, Angela Mcknight, Shanique Speight, and Mila Jasey. The bill passed both houses on June 21, 2021, by 67-1-3. On July 2, 2021, P.L.2021, c.154. was approved and signed by Governor Murphy.

The law requires the Department of Children and Families or court to consider placement of children with relatives or kinship guardians when making placement decisions, and to change the current standards for initiating petitions to terminate parental rights. The long- and short-term effects of these changes cannot be understated. Kin placements not only decrease the risk of trauma to children and their families, they also expedite reunification. These changes are necessary to reduce the racial disparities in the system in New Jersey.

To achieve these goals, Law P.L.2021, c.154 modifies the term “caregiver” to be defined as a person over the age of 18, other than the person's parent, who has a kinship relationship with, and has been providing support services to, the child while the child has been residing in the person's home for either the last six consecutive months or nine of the last 15 months. The law also requires that the kinship caregiver assessment contain a certification from a caregiver that the caregiver has been providing care and support while the child has been residing in the caregiver's home.

The law removes the requirement that, in cases in which the Division of Child Protection and Permanency (DCPP) is involved with a child, the court needs to find that the adoption of the child is neither feasible nor likely in order to appoint a caregiver as a kinship legal guardian. The law also requires the court or DCCP to make reasonable efforts to place the child with a suitable relative or person who has a kinship relationship prior to placing the child with another suitable person when: (1) DCCP is informed that there has been an emergency removal of a child from the child's home; (2) the court finds that a child's continued removal is necessary to avoid an ongoing risk to the child's life, safety, or health; or (3) the court places a child with a relative, other suitable person, or DCCP for placement, upon a finding that DCCP has made reasonable efforts to prevent a child's placement or that reasonable efforts to prevent placement is not required.

The law requires that in any case in which the Department of Children and Families (DCF) accepts a child in its care or custody, the DCF is to consider placement of the child with a suitable relative or person who has a kinship relationship. The law requires DCF to initiate a search for persons with a kinship relationship with the child who may be willing to provide care and support to the child and assess their ability to do so, including placement. If it is determined that a person with a kinship relationship is unwilling or unable to assume the care of the child, DCF is to inform the person of its determination, the person's responsibility if there is a change in circumstances upon which DCF made its determination, the person's right to seek review of the DCF's determination, and the possibility that termination of parental rights may occur if the child remains in resource family care for more than six months.

Lastly, the law eliminates the provision that allows evidence that separating a child from the child's resource family parents would cause serious and enduring emotional or psychological harm to the child to be used in initiating a petition to terminate parental rights.

07/08/21: Mandatory Settlement Conferences in Residential Landlord Tenant Matters - Implementation of the Supreme Court's July 1, 2021 Order - Directive promulgating the Mandatory Settlement Conference Scheduling Notice form and Settlement Conference Information Sheet.

07/02/21: By way of a Notice to the Bar and Order of the Supreme Court, on July 1, 2021 the Court announced its new procedures for the automatic vacation, dismissal and expungement of certain marijuana-related indictable, disorderly persons and juvenile cases. While the automatic system is still in development it has been ordered to be completed “as expeditiously as possible,” and when in effect will result in the expungement of over 360,000 cases.

07/01/21: Notice to the Bar and Public—Landlord Tenant - Interim Process for Mandatory Settlement Conferences - Courts statewide will schedule mandatory settlement conferences in landlord tenant cases. Conferences will primarily be conducted in a remote format.

06/17/21: In the Matter of the Expungement of the Criminal Records of S.M.U.

In the Matter of the Expungement of the Criminal Records of S.M.U., the New Jersey Appellate Division panel upheld the denial of a petitioner’s expungement under N.J.S.A. 2C:52-14(b) because of his previous sexual offense involving a hospital patient and the trial court’s finding that such institutions should be made aware of his record if he sought employment in the medical field.

The lower court denied the expungement even though petitioner had met presumptive eligibility under the statute, finding that the “need for the availability” of the criminal record “outweighed the desirability” of granting the expungement pursuant N.J.S.A. 2C:52-14(b).

The petitioner worked at a hospital at the time of his arrest for sexual assault of a patient. In 2007, he plead guilty to fourth degree criminal sexual contact, and was sentenced to five years of probation. Twelve years later in 2019, the petitioner filed for expungement and included a psychological evaluation completed by a doctor. The evaluation reported that the petitioner was unlikely to present a danger to the community. The evaluation also reported that the petitioner graduated from college where he completed coursework that allowed him to go to medical school, and also spent time volunteering as an Emergency Medical Technician (EMT). The petitioner’s attorney offered that he no longer had the desire to attend medical school or become a doctor. The trial court held that it would be necessary to keep the petitioner’s criminal records on file, because, if the petitioner wished to pursue any career in the medical field in the future, the institution should be aware of the criminal history due to vulnerability of future patients. The Appellate Division agreed, and found no abuse in the exercise of the trial court’s discretion.

06/10/21: NJ Legislature Passes Fair Chance in Housing Bill to Combat Criminal Record Discrimination

On June 3, the legislature passed a bill aimed at preventing landlords in New Jersey from discriminating against applicants on the basis of past criminal records.

The bill A1919/S250 was amended a number of times as it progressed through the legislature, as advocates called for stronger protections for housing applicants.

It prevents landlords from considering applicants’ criminal records in most cases until after a conditional offer of housing has been made, and also includes a limited look-back provision which prevents consideration of criminal convictions which are older than a certain timeframe depending on the degree of the offense. There is no limited look-back period for certain serious offenses, and it provides no protections for those convicted of producing methamphetamine on the premises of federally assisted housing and Megan’s Law sex offenses.

Additionally, landlords are required to provide notice to applicants of their rights if their criminal records are being considered; individualized consideration of criminal records (no categorical denials); and a detailed written explanation if they deny housing based on such information. They must also notify applicants of their right to file a complaint with the Division on Civil Rights, which is the agency tasked with enforcement of the law.

Landlords found in violation are subject to escalating monetary sanctions for each violation from $1,000 for a first violation up to $10,000 for two or more within a seven year period. The bill, however, precludes private actions in court. The bill also requires the Division on Civil Rights to publish data on complaints filed against landlords.

The bill is expected to be signed by the Governor shortly.

05/25/21: Dismissal of Nearly 300,000 Municipal Cases More than 27 Years Old and Recall of Driver’s License Suspensions

The New Jersey Supreme Court has begun a lengthy process to dismiss approximately 1.7 million minor, unresolved municipal court cases. To that end, the court has issued its first dismissal order dismissing nearly 300,000 unresolved, minor municipal court cases that are more than 27 years old. The dismissed cases are those in which driver’s license suspensions had been issued to defendants for a failure to appear prior to January 1, 1994, which were still active on May 21, 2021. These cases include parking offenses, motor vehicle offenses, municipal ordinances, and other minor municipal matters. For these dismissed matters, all driver’s license suspensions will be lifted, and, if an arrest warrant had been issued, it will be cancelled. The court’s order does not dismiss more serious municipal court cases, including driving while intoxicated, reckless driving, and refusal to submit to a chemical test.

A Notice to the Public announcing the first dismissal order can be found at https://njcourts.gov/notices/2021/n210525a.pdf?c=OLb. The Judiciary has also created a webpage to assist the public in identifying what matters are included in this dismissal order: www.njcourts.gov/courts/mcs/dismissals.html. It includes a database that can be searched for a particular case; details on charges that are included in the order and a list of charges that are not included; a set of frequently asked questions; and an explanation of how an individual can, if necessary, contact the Motor Vehicle Commission to restore a suspended license.

05/13/21: 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.

02/23/21: 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.

01/19/21: 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.

01/07/21: 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.