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.

Senate Judiciary Committee OKs DWI/interlock bill

The Senate Judiciary Committee voted out a bill that would overhaul New Jersey’s driving while intoxicated (DWI) penalties to focus more on the use of interlock devices and less on license suspensions. The New Jersey State Bar Association has voiced concerns about similar bills and is closely monitoring this proposal, which was heavily revised from the legislation that was introduced.

“This bill would move New Jersey away from driver’s license suspensions as the default penalty for offenders charged with drunken driving in favor of the use of ignition interlock devices,” said Senator Nicholas Scutari, a prime sponsor of S-824 and chair of the Senate Judiciary Committee. He referenced statistics showing that interlock devices prove far better at reducing drunk driving.

The NJSBA has reviewed the bill and remains concerned about the costs associated with the installation of the interlock device, and obtaining a report from the interlock companies. The substituted bill provides for three levels of penalties on a first-time driving offense, and offers different penalties for those who own, lease or operate a vehicle from those who do not own a car.

The association remains committed to working with the sponsors to address their concerns.

Court hears argument on the fair treatment of arbitration clauses

New Jersey’s longstanding public policy favoring informed consent in agreements to arbitrate, as in any other contract, is still good law following the United States Supreme Court decision in Kindred Nursing Center, L.P. v. Clark, 581 U.S. ___, 137 S. Ct. 1421 (2017), argued the New Jersey State Bar Association before the Supreme Court in Kernahan v. Home Warranty Administrator of Florida, Inc., et als., Docket No. 079680. The policy stems from a long line of cases focusing on general contract principles and does not impose a particular burden on arbitration, said George Conk who argued for the association and who co-authored the NJSBA brief in the matter with Timothy Dinan.

In Kernahan, the Appellate Division refused to enforce a clause that is so confusing on its face that a reasonable consumer could not be expected to understand its import. In particular, the Appellate Division concluded the clause was inadequate because it did not “at least in some general and sufficiently broad way convey that parties are giving up their right to bring claims in court or in front of a jury.”

Requiring such a statement, however, is at odds with the Federal Arbitration Act and the U.S. Supreme Court opinions interpreting it, claimed the defendant’s attorney, Lori Grifa, pointing to the Court’s action in overturning a clear statement rule articulated by the Kentucky Supreme Court in Kindred Nursing Center.

New Jersey’s general contract principles, espoused in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014), and its predecessor cases, ensure that all parties to a contract are on equal footing, said plaintiff’s attorney, John E. Keefe Jr. Carving out arbitration clauses from those principles would unfairly provide better than equal footing to those seeking arbitration.