47:1A-8 Construction of act.
9.Nothing contained in P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, shall be construed as limiting the common law right of access to a government record, including criminal investigatory records of a law enforcement agency.
Thursday, March 18, 2010
47:1A-7 Government Records Council.
47:1A-7 Government Records Council.
8. a. There is established in the Department of Community Affairs a Government Records Council. The council shall consist of the Commissioner of Community Affairs or the commissioner's designee, the Commissioner of Education or the commissioner's designee, and three public members appointed by the Governor, with the advice and consent of the Senate, not more than two of whom shall be of the same political party. The three public members shall serve during the term of the Governor making the appointment and until the appointment of a successor. A public member shall not hold any other State or local elected or appointed office or employment while serving as a member of the council. A public member shall not receive a salary for service on the council but shall be reimbursed for reasonable and necessary expenses associated with serving on the council and may receive such per diem payment as may be provided in the annual appropriations act. A member may be removed by the Governor for cause. Vacancies among the public members shall be filled in the same manner in which the original appointment was made. The members of the council shall choose one of the public members to serve as the council's chair. The council may employ an executive director and such professional and clerical staff as it deems necessary and may call upon the Department of Community Affairs for such assistance as it deems necessary and may be available to it.
b.The Government Records Council shall:
establish an informal mediation program to facilitate the resolution of disputes regarding access to government records;
receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government record by a records custodian;
issue advisory opinions, on its own initiative, as to whether a particular type of record is a government record which is accessible to the public;
prepare guidelines and an informational pamphlet for use by records custodians in complying with the law governing access to public records;
prepare an informational pamphlet explaining the public's right of access to government records and the methods for resolving disputes regarding access, which records custodians shall make available to persons requesting access to a government record;
prepare lists for use by records custodians of the types of records in the possession of public agencies which are government records;
make training opportunities available for records custodians and other public officers and employees which explain the law governing access to public records; and
operate an informational website and a toll-free helpline staffed by knowledgeable employees of the council during regular business hours which shall enable any person, including records custodians, to call for information regarding the law governing access to public records and allow any person to request mediation or to file a complaint with the council when access has been denied;
In implementing the provisions of subsections d. and e. of this section, the council shall: act, to the maximum extent possible, at the convenience of the parties; utilize teleconferencing, faxing of documents, e-mail and similar forms of modern communication; and when in-person meetings are necessary, send representatives to meet with the parties at a location convenient to the parties.
c.At the request of the council, a public agency shall produce documents and ensure the attendance of witnesses with respect to the council's investigation of any complaint or the holding of any hearing.
d.Upon receipt of a written complaint signed by any person alleging that a custodian of a government record has improperly denied that person access to a government record, the council shall offer the parties the opportunity to resolve the dispute through mediation. Mediation shall enable a person who has been denied access to a government record and the custodian who denied or failed to provide access thereto to attempt to mediate the dispute through a process whereby a neutral mediator, who shall be trained in mediation selected by the council, acts to encourage and facilitate the resolution of the dispute. Mediation shall be an informal, nonadversarial process having the objective of helping the parties reach a mutually acceptable, voluntary agreement. The mediator shall assist the parties in identifying issues, foster joint problem solving, and explore settlement alternatives.
e.If any party declines mediation or if mediation fails to resolve the matter to the satisfaction of all parties, the council shall initiate an investigation concerning the facts and circumstances set forth in the complaint. The council shall make a determination as to whether the complaint is within its jurisdiction or frivolous or without any reasonable factual basis. If the council shall conclude that the complaint is outside its jurisdiction, frivolous or without factual basis, it shall reduce that conclusion to writing and transmit a copy thereof to the complainant and to the records custodian against whom the complaint was filed. Otherwise, the council shall notify the records custodian against whom the complaint was filed of the nature of the complaint and the facts and circumstances set forth therein. The custodian shall have the opportunity to present the board with any statement or information concerning the complaint which the custodian wishes. If the council is able to make a determination as to a record's accessibility based upon the complaint and the custodian's response thereto, it shall reduce that conclusion to writing and transmit a copy thereof to the complainant and to the records custodian against whom the complaint was filed. If the council is unable to make a determination as to a record's accessibility based upon the complaint and the custodian's response thereto, the council shall conduct a hearing on the matter in conformity with the rules and regulations provided for hearings by a State agency in contested cases under the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), insofar as they may be applicable and practicable. The council shall, by a majority vote of its members, render a decision as to whether the record which is the subject of the complaint is a government record which must be made available for public access pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented. If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in section 12 of P.L.2001, c.404 (C.47:1A-11). A decision of the council may be appealed to the Appellate Division of the Superior Court. A decision of the council shall not have value as a precedent for any case initiated in Superior Court pursuant to section 7 of P.L.2001, c.404 (C.47:1A-6). All proceedings of the council pursuant to this subsection shall be conducted as expeditiously as possible.
f.The council shall not charge any party a fee in regard to actions filed with the council. The council shall be subject to the provisions of the "Open Public Meetings Act," P.L.1975, c.231 (C.10:4-6), except that the council may go into closed session during that portion of any proceeding during which the contents of a contested record would be disclosed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee.
g.The council shall not have jurisdiction over the Judicial or Legislative Branches of State Government or any agency, officer, or employee of those branches.
L.2001,c.404,s.8.
8. a. There is established in the Department of Community Affairs a Government Records Council. The council shall consist of the Commissioner of Community Affairs or the commissioner's designee, the Commissioner of Education or the commissioner's designee, and three public members appointed by the Governor, with the advice and consent of the Senate, not more than two of whom shall be of the same political party. The three public members shall serve during the term of the Governor making the appointment and until the appointment of a successor. A public member shall not hold any other State or local elected or appointed office or employment while serving as a member of the council. A public member shall not receive a salary for service on the council but shall be reimbursed for reasonable and necessary expenses associated with serving on the council and may receive such per diem payment as may be provided in the annual appropriations act. A member may be removed by the Governor for cause. Vacancies among the public members shall be filled in the same manner in which the original appointment was made. The members of the council shall choose one of the public members to serve as the council's chair. The council may employ an executive director and such professional and clerical staff as it deems necessary and may call upon the Department of Community Affairs for such assistance as it deems necessary and may be available to it.
b.The Government Records Council shall:
establish an informal mediation program to facilitate the resolution of disputes regarding access to government records;
receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government record by a records custodian;
issue advisory opinions, on its own initiative, as to whether a particular type of record is a government record which is accessible to the public;
prepare guidelines and an informational pamphlet for use by records custodians in complying with the law governing access to public records;
prepare an informational pamphlet explaining the public's right of access to government records and the methods for resolving disputes regarding access, which records custodians shall make available to persons requesting access to a government record;
prepare lists for use by records custodians of the types of records in the possession of public agencies which are government records;
make training opportunities available for records custodians and other public officers and employees which explain the law governing access to public records; and
operate an informational website and a toll-free helpline staffed by knowledgeable employees of the council during regular business hours which shall enable any person, including records custodians, to call for information regarding the law governing access to public records and allow any person to request mediation or to file a complaint with the council when access has been denied;
In implementing the provisions of subsections d. and e. of this section, the council shall: act, to the maximum extent possible, at the convenience of the parties; utilize teleconferencing, faxing of documents, e-mail and similar forms of modern communication; and when in-person meetings are necessary, send representatives to meet with the parties at a location convenient to the parties.
c.At the request of the council, a public agency shall produce documents and ensure the attendance of witnesses with respect to the council's investigation of any complaint or the holding of any hearing.
d.Upon receipt of a written complaint signed by any person alleging that a custodian of a government record has improperly denied that person access to a government record, the council shall offer the parties the opportunity to resolve the dispute through mediation. Mediation shall enable a person who has been denied access to a government record and the custodian who denied or failed to provide access thereto to attempt to mediate the dispute through a process whereby a neutral mediator, who shall be trained in mediation selected by the council, acts to encourage and facilitate the resolution of the dispute. Mediation shall be an informal, nonadversarial process having the objective of helping the parties reach a mutually acceptable, voluntary agreement. The mediator shall assist the parties in identifying issues, foster joint problem solving, and explore settlement alternatives.
e.If any party declines mediation or if mediation fails to resolve the matter to the satisfaction of all parties, the council shall initiate an investigation concerning the facts and circumstances set forth in the complaint. The council shall make a determination as to whether the complaint is within its jurisdiction or frivolous or without any reasonable factual basis. If the council shall conclude that the complaint is outside its jurisdiction, frivolous or without factual basis, it shall reduce that conclusion to writing and transmit a copy thereof to the complainant and to the records custodian against whom the complaint was filed. Otherwise, the council shall notify the records custodian against whom the complaint was filed of the nature of the complaint and the facts and circumstances set forth therein. The custodian shall have the opportunity to present the board with any statement or information concerning the complaint which the custodian wishes. If the council is able to make a determination as to a record's accessibility based upon the complaint and the custodian's response thereto, it shall reduce that conclusion to writing and transmit a copy thereof to the complainant and to the records custodian against whom the complaint was filed. If the council is unable to make a determination as to a record's accessibility based upon the complaint and the custodian's response thereto, the council shall conduct a hearing on the matter in conformity with the rules and regulations provided for hearings by a State agency in contested cases under the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), insofar as they may be applicable and practicable. The council shall, by a majority vote of its members, render a decision as to whether the record which is the subject of the complaint is a government record which must be made available for public access pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented. If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in section 12 of P.L.2001, c.404 (C.47:1A-11). A decision of the council may be appealed to the Appellate Division of the Superior Court. A decision of the council shall not have value as a precedent for any case initiated in Superior Court pursuant to section 7 of P.L.2001, c.404 (C.47:1A-6). All proceedings of the council pursuant to this subsection shall be conducted as expeditiously as possible.
f.The council shall not charge any party a fee in regard to actions filed with the council. The council shall be subject to the provisions of the "Open Public Meetings Act," P.L.1975, c.231 (C.10:4-6), except that the council may go into closed session during that portion of any proceeding during which the contents of a contested record would be disclosed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee.
g.The council shall not have jurisdiction over the Judicial or Legislative Branches of State Government or any agency, officer, or employee of those branches.
L.2001,c.404,s.8.
47:1A-6 Proceeding to challenge denial of access to record.
47:1A-6 Proceeding to challenge denial of access to record.
7. A person who is denied access to a government record by the custodian of the record, at the option of the requestor, may:
institute a proceeding to challenge the custodian's decision by filing an action in Superior Court which shall be heard in the vicinage where it is filed by a Superior Court Judge who has been designated to hear such cases because of that judge's knowledge and expertise in matters relating to access to government records; or
in lieu of filing an action in Superior Court, file a complaint with the Government Records Council established pursuant to section 8 of P.L.2001, c.404 (C.47:1A-7).
The right to institute any proceeding under this section shall be solely that of the requestor. Any such proceeding shall proceed in a summary or expedited manner. The public agency shall have the burden of proving that the denial of access is authorized by law. If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee.
L.2001,c.404,s.7.
7. A person who is denied access to a government record by the custodian of the record, at the option of the requestor, may:
institute a proceeding to challenge the custodian's decision by filing an action in Superior Court which shall be heard in the vicinage where it is filed by a Superior Court Judge who has been designated to hear such cases because of that judge's knowledge and expertise in matters relating to access to government records; or
in lieu of filing an action in Superior Court, file a complaint with the Government Records Council established pursuant to section 8 of P.L.2001, c.404 (C.47:1A-7).
The right to institute any proceeding under this section shall be solely that of the requestor. Any such proceeding shall proceed in a summary or expedited manner. The public agency shall have the burden of proving that the denial of access is authorized by law. If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee.
L.2001,c.404,s.7.
47:1A-5 Times during which records may be inspected, examined, copied; access; copy fees.
47:1A-5 Times during which records may be inspected, examined, copied; access; copy fees.
6. a. The custodian of a government record shall permit the record to be inspected, examined, and copied by any person during regular business hours; or in the case of a municipality having a population of 5,000 or fewer according to the most recent federal decennial census, a board of education having a total district enrollment of 500 or fewer, or a public authority having less than $10 million in assets, during not less than six regular business hours over not less than three business days per week or the entity's regularly-scheduled business hours, whichever is less; unless a government record is exempt from public access by: P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order. Prior to allowing access to any government record, the custodian thereof shall redact from that record any information which discloses the social security number, credit card number, unlisted telephone number, or driver license number of any person; except for use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf thereof, or any private person or entity seeking to enforce payment of court-ordered child support; except with respect to the disclosure of driver information by the Division of Motor Vehicles as permitted by section 2 of P.L.1997, c.188 (C.39:2-3.4); and except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited by State or federal law, regulation or order or by State statute, resolution of either or both houses of the Legislature, Executive Order of the Governor, rule of court or regulation promulgated under the authority of any statute or executive order of the Governor. Except where an agency can demonstrate an emergent need, a regulation that limits access to government records shall not be retroactive in effect or applied to deny a request for access to a government record that is pending before the agency, the council or a court at the time of the adoption of the regulation.
b.A copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation, or if a fee is not prescribed by law or regulation, upon payment of the actual cost of duplicating the record. Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall not exceed the following: first page to tenth page, $0.75 per page; eleventh page to twentieth page, $0.50 per page; all pages over twenty, $0.25 per page. The actual cost of duplicating the record shall be the cost of materials and supplies used to make a copy of the record, but shall not include the cost of labor or other overhead expenses associated with making the copy except as provided for in subsection c. of this section. If a public agency can demonstrate that its actual costs for duplication of a government record exceed the foregoing rates, the public agency shall be permitted to charge the actual cost of duplicating the record.
c.Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the foregoing rates shall be established in advance by ordinance. The requestor shall have the opportunity to review and object to the charge prior to it being incurred.
d.A custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium. If a request is for a record: (1) in a medium not routinely used by the agency; (2) not routinely developed or maintained by an agency; or (3) requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.
e.Immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.
f.The custodian of a public agency shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency. The form shall provide space for the name, address, and phone number of the requestor and a brief description of the government record sought. The form shall include space for the custodian to indicate which record will be made available, when the record will be available, and the fees to be charged. The form shall also include the following: (1) specific directions and procedures for requesting a record; (2) a statement as to whether prepayment of fees or a deposit is required; (3) the time period within which the public agency is required by P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, to make the record available; (4) a statement of the requestor's right to challenge a decision by the public agency to deny access and the procedure for filing an appeal; (5) space for the custodian to list reasons if a request is denied in whole or in part; (6) space for the requestor to sign and date the form; (7) space for the custodian to sign and date the form if the request is fulfilled or denied. The custodian may require a deposit against costs for reproducing documents sought through an anonymous request whenever the custodian anticipates that the information thus requested will cost in excess of $5 to reproduce.
g.A request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian. A custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record. If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor. The custodian shall sign and date the form and provide the requestor with a copy thereof. If the custodian of a government record asserts that part of a particular record is exempt from public access pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record. If the government record requested is temporarily unavailable because it is in use or in storage, the custodian shall so advise the requestor and shall make arrangements to promptly make available a copy of the record. If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.
h.Any officer or employee of a public agency who receives a request for access to a government record shall forward the request to the custodian of the record or direct the requestor to the custodian of the record.
i.Unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived. In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor. If the requestor has elected not to provide a name, address, or telephone number, or other means of contacting the requestor, the custodian shall not be required to respond until the requestor reappears before the custodian seeking a response to the original request. If the government record is in storage or archived, the requestor shall be so advised within seven business days after the custodian receives the request. The requestor shall be advised by the custodian when the record can be made available. If the record is not made available by that time, access shall be deemed denied.
j.A custodian shall post prominently in public view in the part or parts of the office or offices of the custodian that are open to or frequented by the public a statement that sets forth in clear, concise and specific terms the right to appeal a denial of, or failure to provide, access to a government record by any person for inspection, examination, or copying or for purchase of copies thereof and the procedure by which an appeal may be filed.
k.The files maintained by the Office of the Public Defender that relate to the handling of any case shall be considered confidential and shall not be open to inspection by any person unless authorized by law, court order, or the State Public Defender.
6. a. The custodian of a government record shall permit the record to be inspected, examined, and copied by any person during regular business hours; or in the case of a municipality having a population of 5,000 or fewer according to the most recent federal decennial census, a board of education having a total district enrollment of 500 or fewer, or a public authority having less than $10 million in assets, during not less than six regular business hours over not less than three business days per week or the entity's regularly-scheduled business hours, whichever is less; unless a government record is exempt from public access by: P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order. Prior to allowing access to any government record, the custodian thereof shall redact from that record any information which discloses the social security number, credit card number, unlisted telephone number, or driver license number of any person; except for use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf thereof, or any private person or entity seeking to enforce payment of court-ordered child support; except with respect to the disclosure of driver information by the Division of Motor Vehicles as permitted by section 2 of P.L.1997, c.188 (C.39:2-3.4); and except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited by State or federal law, regulation or order or by State statute, resolution of either or both houses of the Legislature, Executive Order of the Governor, rule of court or regulation promulgated under the authority of any statute or executive order of the Governor. Except where an agency can demonstrate an emergent need, a regulation that limits access to government records shall not be retroactive in effect or applied to deny a request for access to a government record that is pending before the agency, the council or a court at the time of the adoption of the regulation.
b.A copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation, or if a fee is not prescribed by law or regulation, upon payment of the actual cost of duplicating the record. Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall not exceed the following: first page to tenth page, $0.75 per page; eleventh page to twentieth page, $0.50 per page; all pages over twenty, $0.25 per page. The actual cost of duplicating the record shall be the cost of materials and supplies used to make a copy of the record, but shall not include the cost of labor or other overhead expenses associated with making the copy except as provided for in subsection c. of this section. If a public agency can demonstrate that its actual costs for duplication of a government record exceed the foregoing rates, the public agency shall be permitted to charge the actual cost of duplicating the record.
c.Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the foregoing rates shall be established in advance by ordinance. The requestor shall have the opportunity to review and object to the charge prior to it being incurred.
d.A custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium. If a request is for a record: (1) in a medium not routinely used by the agency; (2) not routinely developed or maintained by an agency; or (3) requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.
e.Immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.
f.The custodian of a public agency shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency. The form shall provide space for the name, address, and phone number of the requestor and a brief description of the government record sought. The form shall include space for the custodian to indicate which record will be made available, when the record will be available, and the fees to be charged. The form shall also include the following: (1) specific directions and procedures for requesting a record; (2) a statement as to whether prepayment of fees or a deposit is required; (3) the time period within which the public agency is required by P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, to make the record available; (4) a statement of the requestor's right to challenge a decision by the public agency to deny access and the procedure for filing an appeal; (5) space for the custodian to list reasons if a request is denied in whole or in part; (6) space for the requestor to sign and date the form; (7) space for the custodian to sign and date the form if the request is fulfilled or denied. The custodian may require a deposit against costs for reproducing documents sought through an anonymous request whenever the custodian anticipates that the information thus requested will cost in excess of $5 to reproduce.
g.A request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian. A custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record. If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor. The custodian shall sign and date the form and provide the requestor with a copy thereof. If the custodian of a government record asserts that part of a particular record is exempt from public access pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record. If the government record requested is temporarily unavailable because it is in use or in storage, the custodian shall so advise the requestor and shall make arrangements to promptly make available a copy of the record. If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.
h.Any officer or employee of a public agency who receives a request for access to a government record shall forward the request to the custodian of the record or direct the requestor to the custodian of the record.
i.Unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived. In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor. If the requestor has elected not to provide a name, address, or telephone number, or other means of contacting the requestor, the custodian shall not be required to respond until the requestor reappears before the custodian seeking a response to the original request. If the government record is in storage or archived, the requestor shall be so advised within seven business days after the custodian receives the request. The requestor shall be advised by the custodian when the record can be made available. If the record is not made available by that time, access shall be deemed denied.
j.A custodian shall post prominently in public view in the part or parts of the office or offices of the custodian that are open to or frequented by the public a statement that sets forth in clear, concise and specific terms the right to appeal a denial of, or failure to provide, access to a government record by any person for inspection, examination, or copying or for purchase of copies thereof and the procedure by which an appeal may be filed.
k.The files maintained by the Office of the Public Defender that relate to the handling of any case shall be considered confidential and shall not be open to inspection by any person unless authorized by law, court order, or the State Public Defender.
47:1A-3 Access to records of investigation in progress.
47:1A-3 Access to records of investigation in progress.
3. a. Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, where it shall appear that the record or records which are sought to be inspected, copied, or examined shall pertain to an investigation in progress by any public agency, the right of access provided for in P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest; provided, however, that this provision shall not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection, examination, or copying before the investigation commenced. Whenever a public agency, during the course of an investigation, obtains from another public agency a government record that was open for public inspection, examination or copying before the investigation commenced, the investigating agency shall provide the other agency with sufficient access to the record to allow the other agency to comply with requests made pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.).
b.Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, the following information concerning a criminal investigation shall be available to the public within 24 hours or as soon as practicable, of a request for such information:
where a crime has been reported but no arrest yet made, information as to the type of crime, time, location and type of weapon, if any;
if an arrest has been made, information as to the name, address and age of any victims unless there has not been sufficient opportunity for notification of next of kin of any victims of injury and/or death to any such victim or where the release of the names of any victim would be contrary to existing law or court rule. In deciding on the release of information as to the identity of a victim, the safety of the victim and the victim's family, and the integrity of any ongoing investigation, shall be considered;
if an arrest has been made, information as to the defendant's name, age, residence, occupation, marital status and similar background information and, the identity of the complaining party unless the release of such information is contrary to existing law or court rule;
information as to the text of any charges such as the complaint, accusation and indictment unless sealed by the court or unless the release of such information is contrary to existing law or court rule;
information as to the identity of the investigating and arresting personnel and agency and the length of the investigation;
information of the circumstances immediately surrounding the arrest, including but not limited to the time and place of the arrest, resistance, if any, pursuit, possession and nature and use of weapons and ammunition by the suspect and by the police; and
information as to circumstances surrounding bail, whether it was posted and the amount thereof.
Notwithstanding any other provision of this subsection, where it shall appear that the information requested or to be examined will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release, such information may be withheld. This exception shall be narrowly construed to prevent disclosure of information that would be harmful to a bona fide law enforcement purpose or the public safety. Whenever a law enforcement official determines that it is necessary to withhold information, the official shall issue a brief statement explaining the decision.
L.1963,c.73,s.3; amended 2001, c.404, s.5.
3. a. Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, where it shall appear that the record or records which are sought to be inspected, copied, or examined shall pertain to an investigation in progress by any public agency, the right of access provided for in P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest; provided, however, that this provision shall not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection, examination, or copying before the investigation commenced. Whenever a public agency, during the course of an investigation, obtains from another public agency a government record that was open for public inspection, examination or copying before the investigation commenced, the investigating agency shall provide the other agency with sufficient access to the record to allow the other agency to comply with requests made pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.).
b.Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, the following information concerning a criminal investigation shall be available to the public within 24 hours or as soon as practicable, of a request for such information:
where a crime has been reported but no arrest yet made, information as to the type of crime, time, location and type of weapon, if any;
if an arrest has been made, information as to the name, address and age of any victims unless there has not been sufficient opportunity for notification of next of kin of any victims of injury and/or death to any such victim or where the release of the names of any victim would be contrary to existing law or court rule. In deciding on the release of information as to the identity of a victim, the safety of the victim and the victim's family, and the integrity of any ongoing investigation, shall be considered;
if an arrest has been made, information as to the defendant's name, age, residence, occupation, marital status and similar background information and, the identity of the complaining party unless the release of such information is contrary to existing law or court rule;
information as to the text of any charges such as the complaint, accusation and indictment unless sealed by the court or unless the release of such information is contrary to existing law or court rule;
information as to the identity of the investigating and arresting personnel and agency and the length of the investigation;
information of the circumstances immediately surrounding the arrest, including but not limited to the time and place of the arrest, resistance, if any, pursuit, possession and nature and use of weapons and ammunition by the suspect and by the police; and
information as to circumstances surrounding bail, whether it was posted and the amount thereof.
Notwithstanding any other provision of this subsection, where it shall appear that the information requested or to be examined will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release, such information may be withheld. This exception shall be narrowly construed to prevent disclosure of information that would be harmful to a bona fide law enforcement purpose or the public safety. Whenever a law enforcement official determines that it is necessary to withhold information, the official shall issue a brief statement explaining the decision.
L.1963,c.73,s.3; amended 2001, c.404, s.5.
47:1A-2.2 Access to certain information by convict prohibited; exceptions.
47:1A-2.2 Access to certain information by convict prohibited; exceptions.
1. a. Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) or the provisions of any other law to the contrary, where it shall appear that a person who is convicted of any indictable offense under the laws of this State, any other state or the United States is seeking government records containing personal information pertaining to the person's victim or the victim's family, including but not limited to a victim's home address, home telephone number, work or school address, work telephone number, social security account number, medical history or any other identifying information, the right of access provided for in P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented shall be denied.
b.A government record containing personal identifying information which is protected under the provisions of this section may be released only if the information is necessary to assist in the defense of the requestor. A determination that the information is necessary to assist in the requestor's defense shall be made by the court upon motion by the requestor or his representative.
c.Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, or any other law to the contrary, a custodian shall not comply with an anonymous request for a government record which is protected under the provisions of this section.
1. a. Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) or the provisions of any other law to the contrary, where it shall appear that a person who is convicted of any indictable offense under the laws of this State, any other state or the United States is seeking government records containing personal information pertaining to the person's victim or the victim's family, including but not limited to a victim's home address, home telephone number, work or school address, work telephone number, social security account number, medical history or any other identifying information, the right of access provided for in P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented shall be denied.
b.A government record containing personal identifying information which is protected under the provisions of this section may be released only if the information is necessary to assist in the defense of the requestor. A determination that the information is necessary to assist in the requestor's defense shall be made by the court upon motion by the requestor or his representative.
c.Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, or any other law to the contrary, a custodian shall not comply with an anonymous request for a government record which is protected under the provisions of this section.
Wednesday, March 17, 2010
47:1A-1.2 Restricted access to biotechnology trade secrets.
47:1A-1.2 Restricted access to biotechnology trade secrets.
2. a. When federal law or regulation requires the submission of biotechnology trade secrets and related confidential information, a public agency shall not have access to this information except as allowed by federal law.
b.A public agency shall not make any biotechnology trade secrets and related confidential information it has access to under this act available to any other public agency, or to the general public, except as allowed pursuant to federal law.
L.1995,c.23,s.2; amended 2001, c.404, s.3.
2. a. When federal law or regulation requires the submission of biotechnology trade secrets and related confidential information, a public agency shall not have access to this information except as allowed by federal law.
b.A public agency shall not make any biotechnology trade secrets and related confidential information it has access to under this act available to any other public agency, or to the general public, except as allowed pursuant to federal law.
L.1995,c.23,s.2; amended 2001, c.404, s.3.
47:1A-1.1 Definitions
47:1A-1.1 Definitions.
1.As used in P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented:
"Biotechnology" means any technique that uses living organisms, or parts of living organisms, to make or modify products, to improve plants or animals, or to develop micro-organisms for specific uses; including the industrial use of recombinant DNA, cell fusion, and novel bioprocessing techniques.
"Custodian of a government record" or "custodian" means in the case of a municipality, the municipal clerk and in the case of any other public agency, the officer officially designated by formal action of that agency's director or governing body, as the case may be.
"Government record" or "record" means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.
A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented:
information received by a member of the Legislature from a constituent or information held by a member of the Legislature concerning a constituent, including but not limited to information in written form or contained in any e-mail or computer data base, or in any telephone record whatsoever, unless it is information the constituent is required by law to transmit;
any memorandum, correspondence, notes, report or other communication prepared by, or for, the specific use of a member of the Legislature in the course of the member's official duties, except that this provision shall not apply to an otherwise publicly-accessible report which is required by law to be submitted to the Legislature or its members;
any copy, reproduction or facsimile of any photograph, negative or print, including instant photographs and videotapes of the body, or any portion of the body, of a deceased person, taken by or for the medical examiner at the scene of death or in the course of a post mortem examination or autopsy made by or caused to be made by the medical examiner except:
when used in a criminal action or proceeding in this State which relates to the death of that person,
for the use as a court of this State permits, by order after good cause has been shown and after written notification of the request for the court order has been served at least five days before the order is made upon the county prosecutor for the county in which the post mortem examination or autopsy occurred,
for use in the field of forensic pathology or for use in medical or scientific education or research, or
for use by any law enforcement agency in this State or any other state or federal law enforcement agency;
criminal investigatory records;
victims' records, except that a victim of a crime shall have access to the victim's own records;
trade secrets and proprietary commercial or financial information obtained from any source. For the purposes of this paragraph, trade secrets shall include data processing software obtained by a public body under a licensing agreement which prohibits its disclosure;
any record within the attorney-client privilege. This paragraph shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove any information protected by the attorney-client privilege;
administrative or technical information regarding computer hardware, software and networks which, if disclosed, would jeopardize computer security;
emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;
security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software;
information which, if disclosed, would give an advantage to competitors or bidders;
information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position;
information which is a communication between a public agency and its insurance carrier, administrative service organization or risk management office;
information which is to be kept confidential pursuant to court order;
any copy of form DD-214, or that form, issued by the United States Government, or any other certificate of honorable discharge, or copy thereof, from active service or the reserves of a branch of the Armed Forces of the United States, or from service in the organized militia of the State, that has been filed by an individual with a public agency, except that a veteran or the veteran's spouse or surviving spouse shall have access to the veteran's own records; and
that portion of any document which discloses the social security number, credit card number, unlisted telephone number or driver license number of any person; except for use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf thereof, or any private person or entity seeking to enforce payment of court-ordered child support; except with respect to the disclosure of driver information by the New Jersey Motor Vehicle Commission as permitted by section 2 of P.L.1997, c.188 (C.39:2-3.4); and except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited by State or federal law, regulation or order or by State statute, resolution of either or both houses of the Legislature, Executive Order of the Governor, rule of court or regulation promulgated under the authority of any statute or executive order of the Governor.
A government record shall not include, with regard to any public institution of higher education, the following information which is deemed to be privileged and confidential:
pedagogical, scholarly and/or academic research records and/or the specific details of any research project conducted under the auspices of a public higher education institution in New Jersey, including, but not limited to research, development information, testing procedures, or information regarding test participants, related to the development or testing of any pharmaceutical or pharmaceutical delivery system, except that a custodian may not deny inspection of a government record or part thereof that gives the name, title, expenditures, source and amounts of funding and date when the final project summary of any research will be available;
test questions, scoring keys and other examination data pertaining to the administration of an examination for employment or academic examination;
records of pursuit of charitable contributions or records containing the identity of a donor of a gift if the donor requires non-disclosure of the donor's identity as a condition of making the gift provided that the donor has not received any benefits of or from the institution of higher education in connection with such gift other than a request for memorialization or dedication;
valuable or rare collections of books and/or documents obtained by gift, grant, bequest or devise conditioned upon limited public access;
information contained on individual admission applications; and
information concerning student records or grievance or disciplinary proceedings against a student to the extent disclosure would reveal the identity of the student.
"Public agency" or "agency" means any of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department; the Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch; and any independent State authority, commission, instrumentality or agency. The terms also mean any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions.
"Law enforcement agency" means a public agency, or part thereof, determined by the Attorney General to have law enforcement responsibilities.
"Constituent" means any State resident or other person communicating with a member of the Legislature.
"Member of the Legislature" means any person elected or selected to serve in the New Jersey Senate or General Assembly.
"Criminal investigatory record" means a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.
"Victim's record" means an individually-identifiable file or document held by a victims' rights agency which pertains directly to a victim of a crime except that a victim of a crime shall have access to the victim's own records.
"Victim of a crime" means a person who has suffered personal or psychological injury or death or incurs loss of or injury to personal or real property as a result of a crime, or if such a person is deceased or incapacitated, a member of that person's immediate family.
"Victims' rights agency" means a public agency, or part thereof, the primary responsibility of which is providing services, including but not limited to food, shelter, or clothing, medical, psychiatric, psychological or legal services or referrals, information and referral services, counseling and support services, or financial services to victims of crimes, including victims of sexual assault, domestic violence, violent crime, child endangerment, child abuse or child neglect, and the Victims of Crime Compensation Board, established pursuant to P.L.1971, c.317 (C.52:4B-1 et seq.).
L.1995,c.23,s.1; amended 2001, c.404, s.2; 2005, c.170.
1.As used in P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented:
"Biotechnology" means any technique that uses living organisms, or parts of living organisms, to make or modify products, to improve plants or animals, or to develop micro-organisms for specific uses; including the industrial use of recombinant DNA, cell fusion, and novel bioprocessing techniques.
"Custodian of a government record" or "custodian" means in the case of a municipality, the municipal clerk and in the case of any other public agency, the officer officially designated by formal action of that agency's director or governing body, as the case may be.
"Government record" or "record" means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.
A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented:
information received by a member of the Legislature from a constituent or information held by a member of the Legislature concerning a constituent, including but not limited to information in written form or contained in any e-mail or computer data base, or in any telephone record whatsoever, unless it is information the constituent is required by law to transmit;
any memorandum, correspondence, notes, report or other communication prepared by, or for, the specific use of a member of the Legislature in the course of the member's official duties, except that this provision shall not apply to an otherwise publicly-accessible report which is required by law to be submitted to the Legislature or its members;
any copy, reproduction or facsimile of any photograph, negative or print, including instant photographs and videotapes of the body, or any portion of the body, of a deceased person, taken by or for the medical examiner at the scene of death or in the course of a post mortem examination or autopsy made by or caused to be made by the medical examiner except:
when used in a criminal action or proceeding in this State which relates to the death of that person,
for the use as a court of this State permits, by order after good cause has been shown and after written notification of the request for the court order has been served at least five days before the order is made upon the county prosecutor for the county in which the post mortem examination or autopsy occurred,
for use in the field of forensic pathology or for use in medical or scientific education or research, or
for use by any law enforcement agency in this State or any other state or federal law enforcement agency;
criminal investigatory records;
victims' records, except that a victim of a crime shall have access to the victim's own records;
trade secrets and proprietary commercial or financial information obtained from any source. For the purposes of this paragraph, trade secrets shall include data processing software obtained by a public body under a licensing agreement which prohibits its disclosure;
any record within the attorney-client privilege. This paragraph shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove any information protected by the attorney-client privilege;
administrative or technical information regarding computer hardware, software and networks which, if disclosed, would jeopardize computer security;
emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;
security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software;
information which, if disclosed, would give an advantage to competitors or bidders;
information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position;
information which is a communication between a public agency and its insurance carrier, administrative service organization or risk management office;
information which is to be kept confidential pursuant to court order;
any copy of form DD-214, or that form, issued by the United States Government, or any other certificate of honorable discharge, or copy thereof, from active service or the reserves of a branch of the Armed Forces of the United States, or from service in the organized militia of the State, that has been filed by an individual with a public agency, except that a veteran or the veteran's spouse or surviving spouse shall have access to the veteran's own records; and
that portion of any document which discloses the social security number, credit card number, unlisted telephone number or driver license number of any person; except for use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf thereof, or any private person or entity seeking to enforce payment of court-ordered child support; except with respect to the disclosure of driver information by the New Jersey Motor Vehicle Commission as permitted by section 2 of P.L.1997, c.188 (C.39:2-3.4); and except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited by State or federal law, regulation or order or by State statute, resolution of either or both houses of the Legislature, Executive Order of the Governor, rule of court or regulation promulgated under the authority of any statute or executive order of the Governor.
A government record shall not include, with regard to any public institution of higher education, the following information which is deemed to be privileged and confidential:
pedagogical, scholarly and/or academic research records and/or the specific details of any research project conducted under the auspices of a public higher education institution in New Jersey, including, but not limited to research, development information, testing procedures, or information regarding test participants, related to the development or testing of any pharmaceutical or pharmaceutical delivery system, except that a custodian may not deny inspection of a government record or part thereof that gives the name, title, expenditures, source and amounts of funding and date when the final project summary of any research will be available;
test questions, scoring keys and other examination data pertaining to the administration of an examination for employment or academic examination;
records of pursuit of charitable contributions or records containing the identity of a donor of a gift if the donor requires non-disclosure of the donor's identity as a condition of making the gift provided that the donor has not received any benefits of or from the institution of higher education in connection with such gift other than a request for memorialization or dedication;
valuable or rare collections of books and/or documents obtained by gift, grant, bequest or devise conditioned upon limited public access;
information contained on individual admission applications; and
information concerning student records or grievance or disciplinary proceedings against a student to the extent disclosure would reveal the identity of the student.
"Public agency" or "agency" means any of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department; the Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch; and any independent State authority, commission, instrumentality or agency. The terms also mean any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions.
"Law enforcement agency" means a public agency, or part thereof, determined by the Attorney General to have law enforcement responsibilities.
"Constituent" means any State resident or other person communicating with a member of the Legislature.
"Member of the Legislature" means any person elected or selected to serve in the New Jersey Senate or General Assembly.
"Criminal investigatory record" means a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.
"Victim's record" means an individually-identifiable file or document held by a victims' rights agency which pertains directly to a victim of a crime except that a victim of a crime shall have access to the victim's own records.
"Victim of a crime" means a person who has suffered personal or psychological injury or death or incurs loss of or injury to personal or real property as a result of a crime, or if such a person is deceased or incapacitated, a member of that person's immediate family.
"Victims' rights agency" means a public agency, or part thereof, the primary responsibility of which is providing services, including but not limited to food, shelter, or clothing, medical, psychiatric, psychological or legal services or referrals, information and referral services, counseling and support services, or financial services to victims of crimes, including victims of sexual assault, domestic violence, violent crime, child endangerment, child abuse or child neglect, and the Victims of Crime Compensation Board, established pursuant to P.L.1971, c.317 (C.52:4B-1 et seq.).
L.1995,c.23,s.1; amended 2001, c.404, s.2; 2005, c.170.
47:1A-1 Legislative findings, declarations.
47:1A-1 Legislative findings, declarations.
1.The Legislature finds and declares it to be the public policy of this State that:
government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded by P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, shall be construed in favor of the public's right of access;
all government records shall be subject to public access unless exempt from such access by: P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law, federal regulation, or federal order;
a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy; and nothing contained in P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, shall be construed as affecting in any way the common law right of access to any record, including but not limited to criminal investigatory records of a law enforcement agency.
L.1963,c.73,s.1; amended 2001, c.404, s.1.
1.The Legislature finds and declares it to be the public policy of this State that:
government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded by P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, shall be construed in favor of the public's right of access;
all government records shall be subject to public access unless exempt from such access by: P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law, federal regulation, or federal order;
a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy; and nothing contained in P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, shall be construed as affecting in any way the common law right of access to any record, including but not limited to criminal investigatory records of a law enforcement agency.
L.1963,c.73,s.1; amended 2001, c.404, s.1.
2010 SUPPLEMENTAL REPORT OF THE SUPREME COURT COMMITTEE ON SPECIAL CIVIL PART PRACTICE
2010 SUPPLEMENTAL REPORT
OF THE SUPREME COURT COMMITTEE
ON SPECIAL CIVIL PART PRACTICE
MARCH 12, 2010
i
TABLE OF CONTENTS
____________________________________
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION ........... 1
A. Proposed Amendments to Rules 4:17-5 and 4:18-1 – Amendments
Proposed by the Civil Practice Committee That Will Affect
Special Civil Part Practice ................................................................ 1
B. Proposed Amendment to R. 6:4-3(f) - Discovery in Actions
Cognizable But Not Filed in Small Claims ..................................... 8
C. PROPOSED AMENDMENTS TO APPENDIX VI – NOTICE TO
DEBTOR ..............................................................................................10
D. PROPOSED AMENDMENT TO R. 6:2-3(B) – SERVICE OF ORIGINAL
PROCESS IN TENANCY ACTIONS ....................................................... 12
II. RULE AMENDMENTS CONSIDERED AND REJECTED ................. 15
A. PROPOSED AMENDMENTS TO R. 6:3-3 – MOTION PRACTICE .......... 15
B. PROPOSED AMENDMENT TO R. 6:6-7 – DOCUMENTATION OF
JUDGMENT SATISFACTION .................................................................16
III. OTHER RECOMMENDATIONS – NONE ............................................ 17
IV. LEGISLATION – NONE .......................................................................... 18
ii
V. MATTERS HELD FOR CONSIDERATION ......................................... 19
A. USE OF CREDIT CARDS TO PAY FEES AND POST DEPOSITS ............. 19
B. “SHOTGUN” BANK LEVIES ................................................................ 20
C. PROPOSED AMENDMENT TO R. 6:7-2(B)(2) - ELIMINATE
REQUIREMENT OF SERVING DEFENDANT WITH INFORMATION
SUBPOENA BEFORE SERVING BANKS ............................................... 21
VI. CONCLUSION .......................................................................................... 22
1
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendments to Rules 4:17-5 and 4:18-1 – Amendments Proposed
by the Civil Practice Committee That Will Affect Special Civil Part Practice
In its 2010 Report to the Supreme Court, the Civil Practice Committee has proposed
amendments to two rules that will affect practice in the Special Civil Part. The first involves
amending R. 4:17-5 so as to clarify the rule by expressly prohibiting the use of general, nonspecific
objections to interrogatories and requiring that any objections be addressed to specific
questions. The second involves a similar amendment to R. 4:18-1 that would prohibit the use of
general, non-specific objections to requests for the production of documents and require a
certification that all documents relevant to the request were produced. Both rules apply to the
Special Civil Part by virtue of R. 6:4-3(a) and (e). The Special Civil Part Practice Committee
supports the changes proposed by the Civil Practice Committee. The proposed amendments
follow.
2
4:17-5. Objections to Interrogatories
(a) [Objections to Questions; Motions. A party upon whom interrogatories are served
who objects to any questions propounded therein may either answer the question by stating, “The
question is improper” or may, within 20 days after being served with the interrogatories, serve a
notice of motion, to be brought on for hearing at the earliest possible time, to strike any question,
setting out the grounds of objection. The answering party shall make timely answer, however, to
all questions to which no objection is made. Interrogatories not stricken shall be answered
within such unexpired period of the 60 days prescribed by R. 4:17-4(b) as remained when the
notice of motion was served or within such time as the court directs. The propounder of a
question answered by a statement that it is improper may, within 20 days after being served with
the answers, serve a notice of motion to compel an answer to the question, and, if granted, the
question shall be answered within such time as the court directs.]
General Objections. General objections to the interrogatories as a whole are not
permitted and shall be disregarded by the court and adverse parties.
(b) Specific Objections. A party served with interrogatories who objects to any
specific question propounded therein may either state with specificity the ground of objection
and answer the question subject to the stated objection, or, within 20 days after being served with
the interrogatories, serve a notice of motion returnable at the earliest possible time to strike any
question setting forth the grounds of the objection. The answering party shall, however, answer
all questions not objected to as herein provided. The propounder of the question objected to
may, within 20 days after service of the answer, move to strike the objection and compel an
answer. Questions not stricken or to which an answer is compelled shall be answered within the
time fixed by the court.
3
[(b)](c) …no change.
[(c)](d) …no change.
[(d)](e) [Costs and Fees] Award of Expenses on Motion. [If the court finds that a
motion made pursuant to this rule was made frivolously or for the purpose of delay or was
necessitated by action of the adverse party that was frivolous or taken for the purpose of delay,
the court may order the offending party to pay the amount of reasonable expenses, including
attorney's fees, incurred by the other party in making or resisting the motion.] The provisions of
R. 4:23-1(c) apply to expenses incurred on motions made pursuant to this rule.
Note: Source — R.R. 4:23-8 (first, second, third, fourth and seventh sentences).
Paragraph (c) adopted July 14, 1972 to be effective September 5, 1972; paragraphs (a) and (b)
amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended, new
paragraph (b) added, former paragraph (b) becomes new paragraph (c), former paragraph (c)
becomes new paragraph (d), and former paragraph (d) becomes new paragraph (e) as amended
to be effective .
4
4:18-1. Production of Documents, Electronically Stored Information, and Things and
Entry Upon Land for Inspection and Other Purposes; Pre-Litigation Discovery
(a) …no change.
(b) Procedure; Continuing Obligation; Failure to Respond; Objections; Motions.
(1) Procedure for Request. The request may, without leave of court, be served on the
plaintiff after commencement of the action and on any other party with or after service of the
summons and complaint on that party. A copy of the request shall also be simultaneously served
on all other parties to the action. The request shall set forth the items to be inspected either by
individual item or by category, and describe each item and category with reasonable
particularity. The request shall specify a reasonable time, place, and manner of making the
inspection and performing the related acts. The request may specify the form or forms in which
electronically stored information is to be produced.
(2) Procedure for Response. The party on whom the request is served shall serve a
written response within 35 days after the service of the request, except that a defendant may
serve a response within 50 days after service of the summons and complaint on that defendant.
On motion, the court may allow a shorter or longer time. The written response[, without
documentation annexed but which shall be made available to all parties on request, shall be
served by the party to whom the request was made on all other parties to the action. The
response shall state, with respect to each item or category, that inspection and related activities
will be permitted as requested, unless the request is objected to, including an objection to the
requested form or forms for producing electronically stored information, stating the reasons for
objection. If objection is made to part of an item or category, the part shall be specified and
inspection permitted of the remaining parts. If objection is made to the requested form or forms
5
for producing electronically stored information or if no form was specified in the request, the
responding party shall state the form or forms it intends to use. The party submitting the request
may move for an order of dismissal or suppression or an order to compel pursuant to R. 4:23-5
with respect to any objection to or other failure to respond to the request or any part thereof or
any failure to permit inspection as requested. If a party who has furnished a written response to a
request to produce or who has supplied documents in response to a request to produce thereafter
obtains additional documents that are responsive to the request, an amended written response and
production of such documents, as appropriate, shall be served promptly.] shall be made by the
party upon whom it is served if an individual, or, if a governmental, commercial, or charitable
entity, by an officer or agent thereof. The person making the response shall swear or certify in
the form prescribed by paragraph (c) of this rule that it is complete and accurate based on
personal knowledge and/or upon information if provided by others, whose identity and source of
knowledge shall be disclosed. The written response shall be served on the requesting party and a
copy on all other parties. The written response shall either include the requested documents or
other material or state, with respect to each item or category, that inspection and related activities
will be permitted as requested. If the written response provides documents to the requesting
party, those documents shall be provided to or made available to any other party upon request.
Unless the parties otherwise agree, or the court otherwise orders:
[(1)](A) a party who produces documents for inspection shall produce them as they
are kept in the usual course of business or shall organize and label them to correspond with the
categories in the request;
6
[(2)](B) if a request does not specify the form or forms for producing electronically
stored information, a responding party shall produce the information in a form or forms in which
it is ordinarily maintained or in a form or forms that are reasonably usable; and
[(3)](C) a party need not produce the same electronically stored information in
more than one form.
(3) Continuing Obligation. If a party who has furnished a written response to a
request to produce or who has supplied documents in response to a request to produce thereafter
obtains additional documents that are responsive to the request, a supplemental written response
and production of such documents, as appropriate, shall be served promptly.
(4) Objections; Failure to Respond; Motions. General objections to the request as a
whole are not permitted and shall be disregarded by the court and adverse parties. The party
upon whom the request is served may, however, object to a request on specific grounds and, if on
the ground of privilege or accessibility of electronically stored information, the objection shall be
made in accordance with R. 4:10-2(e) and (f) respectively. The requesting party may move for
an order of dismissal or suppression or an order to compel pursuant to R. 4:23-5 with respect to
any objection to or other failure to respond to the request or any part thereof or any failure to
permit inspection as requested. The provisions of R. 4:23-1(c) apply to the award of expenses
incurred in relation to motions made pursuant to this rule.
(c) Certification or Affidavit of Completeness. The person responding to the request
shall submit with the response a certification stating or affidavit averring as follows:
I hereby certify (or aver) that I have reviewed the document production request and that I
have made or caused to be made a good faith search for documents responsive to the request. I
further certify (or aver) that as of this date, to the best of my knowledge and information, the
7
production is complete and accurate based on ( ) my personal knowledge and/or ( ) information
provided by others. The following is a list of the identity and source of knowledge of those who
provided information to me:
(d) Persons Not Parties. This rule does not preclude an independent action against a
person not a party for production of documents and things and permission to enter upon land.
Pre-litigation discovery within the scope of this rule may also be sought by petition pursuant to
R. 4:11-1.
Note: Source — R.R. 4:24-1. Former rule deleted and new R. 4:18-1 adopted July 14,
1972 to be effective September 5, 1972; rule caption and paragraph (c) amended July 14, 1992 to
be effective September 1, 1992; paragraphs (a) and (b) amended July 13, 1994 to be effective
September 1, 1994; paragraph (b) amended July 10, 1998 to be effective September 1, 1998;
paragraph (b) amended July 5, 2000 to be effective September 5, 2000; paragraph (b) amended
July 12, 2002 to be effective September 3, 2002; caption and paragraphs (a) and (b) amended
July 27, 2006 to be effective September 1, 2006; paragraph (b) amended, new paragraph (c)
added, and former paragraph (c) becomes new paragraph (d) to be effective .
8
B. Proposed Amendment to R. 6:4-3(f) - Discovery in Actions Cognizable But
Not Filed in Small Claims
Rule 6:4-3(a) provides that interrogatories are not permitted in Small Claims, but
members of the Committee reported that some litigants and attorneys have expressed the view,
over the years, that discovery is permitted in Small Claims and they rely on the title to R. 6:4-
3(f), which reads, “Actions Cognizable in Small Claims Section, Discovery.” They insist that
the title of this rule clearly permits discovery in Small Claims and they have quoted Judge
Pressler's comment 2.1 to the rule which says, in relevant part: "In Small Claims Actions,
defined as actions within the monetary limit of the Small Claims Section, whether or not
pending, interrogatories are permitted only as provided by Paragraph (e) of this rule."
The Committee believes that the first sentence of paragraph (a) of the rule clearly excludes
actions filed or pending in the Small Claims Section from the use of interrogatories otherwise
permitted by the rule. It states:
Except as otherwise provided by R. 6:4-3(b) interrogatories may be served pursuant to
the applicable provisions of R. 4:17 in all actions except forcible entry and detainer
actions, summary landlord and tenant actions for the recovery of premises, and actions
commenced or pending in the Small Claims Section.
A minor editing of the title and body of paragraph (f) should remove the cause of any ambiguity
that may currently exist. The proposed amendments follow.
9
6:4-3. Interrogatories; Admissions; Production
(a) ... no change.
(b) ... no change.
(c) ... no change.
(d) ... no change.
(e) ... no change.
(f) Actions Cognizable But Not Pending in Small Claims Section, Discovery. Any
action filed in the Special Civil Part that is cognizable but not pending in the Small Claims
Section [of the Special Civil Part shall] may proceed with [without] discovery, [except that] but
each party is limited to serving [may serve] interrogatories consisting of no more than five
questions without parts. Such interrogatories shall be served and answered within the time limits
set forth in R. 6:4-3(a). Additional interrogatories may be served and enlargements of time to
answer may be granted only by court order on timely notice of motion for good cause shown.
Note: Source – R.R. 7:6-4A (a) (b) (c), 7:6-4B, 7:6-4C. Caption amended and paragraph (c)
adopted July 7, 1971 to be effective September 13, 1971; caption amended, paragraph (a)
amended, and paragraph (d) adopted July 29, 1977 to be effective September 6, 1977; paragraph
(a) amended July 24, 1978 to be effective September 11, 1978; paragraph (e) adopted July 15,
1982 to be effective September 13, 1982; paragraph (e) amended July 22, 1983 to be effective
September 12, 1983; paragraphs (a), (c), (d) and (e) amended November 7, 1988 to be effective
January 2, 1989; paragraph (a) amended, paragraph (b) adopted and former paragraphs (b), (c),
(d) and (e) redesignated as (c), (d), (e) and (f) respectively, June 29, 1990 to be effective
September 4, 1990; paragraph (b) amended August 31, 1990, to be effective September 4, 1990;
paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (c)
caption and text amended, and paragraph (f) amended July 12, 2002 to be effective September 3,
2002; former paragraph (b) deleted and paragraphs (c), (d), (e) and (f) redesignated as paragraphs
(b), (c), (d) and (e), respectively, July 28, 2004, to be effective September 1, 2004; paragraph (b)
amended, new paragraph (c) adopted, and former paragraphs (c), (d), (e) redesignated as
paragraphs (d), (e), (f) July 27, 2006 to be effective September 1, 2006; paragraph (a) amended
August 1, 2006 to be effective September 1, 2006; paragraph (f) caption and text amended
, 2010 to be effective , 2010.
10
C. Proposed Amendments to Appendix VI – Notice to Debtor
The Special Civil Part Management Committee (composed of the Assistant Civil
Division Managers responsible for supervising the Special Civil Part Clerk's Office in each
county) and the Conference of Civil Division Managers proposed revisions to the Notice to
Debtor set forth in Appendix VI to the court rules. The Notice to Debtor advises the judgmentdebtor
of a levy on assets to satisfy a judgment and the steps that can be taken to contest the levy.
The Special Civil Part Practice Committee agrees with the proposed revisions, which are
intended to provide the debtor with more information in a single document about efforts to
collect the judgment by listing all the bank accounts and/or other items of personal property that
have been levied upon by the Special Civil Part Officer. The current form has space for only one
account or item of property. The levying Officer thus has to mail several different Notices when
levying on multiple accounts, as they often do, and this can be confusing for judgment-debtors.
The revisions would also eliminate, from the Certification of Service, the statement that a copy
has been mailed to the clerk of the court, in keeping with this Committee's proposed amendment
to R. 6:7-1(b), which would eliminate this requirement if approved by the Supreme Court (see
2010 Report of the Supreme Court Committee on Special Civil Part Practice, item I.E. on pages
13-15). Please note that the Notice to Debtor set forth in Appendix VI to the rules applies to
Civil Part actions as well as Special Civil Part actions, by virtue of R. 4:59-1(g). The proposed
amendments to the Notice to Debtor follow.
11
APPENDIX VI. NOTICE TO DEBTOR, (Rules 4:59-1(g) and 6:7-1(b))
Re:
_______________________________________
v.
Superior Court of New Jersey
Law Division, Special Civil Part
____________________County
Docket No: ___________________
Notice to Debtor
To: _______________________________________________, designated defendant:
Your asset, in an amount not to exceed $ _____________ has been levied upon at the instruction of:
_______________________________________to satisfy in whole or in part the judgment against you in the above
matter. Some property may be exempt from execution by Federal and State law, including but not limited to clothing
and a total of $1,000.00 of cash and personal property, except for goods purchased as part of the transaction, which led
to the judgment in this case. In addition, welfare benefits, social security benefits, S.S.I. benefits, V.A. benefits,
unemployment benefits, workers' compensation benefits and child support you receive are exempt, even if the funds
have been deposited in a bank account.
If the levy is against a bank account, the bank has already been notified to place a hold on your account. However,
the funds will not be taken from your account until the court so orders. You may claim your exemption by notifying the
clerk of the court and the person who ordered this levy of your reasons why your property is exempt. This claim must be
in writing and if it is not mailed within 10 days of service of this notice, your property is subject to further proceedings for
execution. The address of the court is: ________________________________________________________.
A Levy has been served on the following:
1.
2.
3.
4.
5.
The name and address of the person who ordered this levy is:
CERTIFICATION OF SERVICE
I mailed a copy of this notice to the defendant(s) and the person who requested the levy on , 20 , the same
day this levy was made. I certify that the foregoing statements made by me are true. I am aware that if the foregoing
statements made by me are willfully false, I am subject to punishment.
Date: (Signature)
(Court Officer)
[Note: Amended July 14, 1992, effective September 1, 1992; amended July 13, 1994, effective September 1, 1994;
amended July5, 2000, effective September 5, 2000; amended July 27, 2006 to be effective September 1, 2006; amended
,2010 to be effective , 2010.]
12
D. Proposed Amendment to R. 6:2-3(b) – Service of Original Process in Tenancy
Actions
The Committee has proposed, in its 2010 Report to the Supreme Court, to amend R. 6:2-
3(b) so as to require personal service of original process (summons and complaint) in tenancy
actions, but permit attachment to the door of the defendant’s unit if the Special Civil Part Officer
is unable to personally deliver it to the defendant or a member of the defendant’s household over
the age of 14 years. This is intended to resolve a perceived discrepancy between the statute and
the court rule governing service of original process in tenancy actions. N.J.S.A. 2A:18-54
provides for service of the summons and complaint by posting in those situations where
admission to the subject premises is refused or no person above the age of 14 is present. Rule
6:2-3(b), on the other hand, currently requires service by mail and by either personal delivery or
posting. In other words, there is no requirement in the rule that the Special Civil Part Officer
first attempt personal service before posting. The Committee noted that, if adopted, this rule
change will require a modification of the Officer’s return of service on the summons and this was
addressed in the next section of the Report.
At a recent meeting of the Committee AOC staff advised the members that comments
expressing serious concerns about the new rule's impact on the Special Civil Part Officers and
court calendars should be expected to be filed with the Supreme Court by the Conference of
Civil Division Managers, the Conference's Special Civil Part Management Committee and the
Committee of Special Civil Part Supervising Judges. The Committee then considered whether
its members wished, at this time, to modify the proposal and decided, by an evenly divided vote
that was broken by the chair, to leave the proposal in its current form. The text of the proposed
amendment to the rule follows.
13
6:2-3. Service of Process
(a) By Whom Served. ... no change.
(b) Manner of Service. Service of process within this State shall be made in accordance
with R. 6:2-3(d) or as otherwise provided by court order consistent with due process of law, or in
accordance with R. 4:4-5. Substituted service within this State shall be made pursuant to R. 6:2-
3(d). Substituted or constructive service outside this State may be made pursuant to the
applicable provisions in R. 4:4-4 or R. 4:4-5.
In summary actions for the recovery of premises [landlord and tenant actions], service of
process shall be by ordinary mail and by [either] delivery personally pursuant to R. 4:4-4. When
the person serving process is unable to effectuate service by delivering process personally,
service may be effectuated [or] by affixing a copy of the summons and complaint on the door of
the unit occupied by the defendant [subject premises]. When the plaintiff-landlord has reason to
believe that service may not be made at the subject premises, the landlord shall also request
service at an address, by certified and regular mail addressed to the tenant, where the landlord
believes that service will be effectuated. The landlord shall furnish to the clerk two additional
copies of the summons and complaint for each defendant for this purpose.
(c) Notice of Service. ... no change.
(d) Service by Mail Program. ... no change.
(e) General Appearance; Acknowledgement of Service. ... no change.
Note: Source--R.R. 7:4-6(a)(b) (first three sentences), 7:4-7. Paragraph (a) amended July 7,
1971 effective September 13, 1971; paragraph (a) amended July 14, 1972 to be effective
September 5, 1972; paragraph (b) amended November 27, 1974 to be effective April 1, 1975;
paragraphs (a)(b) amended July 17, 1975 to be effective September 8, 1975; paragraph (a)
amended July 16, 1979 to be effective September 10, 1979; paragraph (a) amended July 21, 1980
to be effective September 8, 1980; paragraph (b) amended July 16, 1981 to be effective
September 14, 1981; paragraphs (a) and (b) amended and paragraph (d) adopted November 5,
14
1986 to be effective January 1, 1987; paragraph (c) amended November 7, 1988 to be effective
January 2, 1989; paragraphs (b) and (d) amended June 29, 1990 to be effective September 4,
1990; paragraph (d) amended July 17, 1991 to be effective immediately; paragraph (e) adopted
July 14, 1992 to be effective September 1, 1992; paragraphs (a) and (e) amended July 13, 1994
to be effective September 1, 1994; paragraph (d)(4) amended July 5, 2000 to be effective
September 5, 2000; paragraphs (a), (b), (d), (d)(2), and (e) amended July 12, 2002 to be effective
September 3, 2002; paragraphs (b), d(4) and (5) amended July 28, 2004 to be effective
September 1, 2004; paragraph (b) amended__________, 2010 to be effective___________,2010.
15
II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Proposed Amendments to R. 6:3-3 – Motion Practice
The Committee considered a letter from a judge in which he discussed two problems with
the current motion practice in the Special Civil Part. The first involved needless motions that are
filed when counsel are careless and, for example, file motions that are moot and he suggested
that provision should be made in the rules for sanctions in these situations. In the second he
suggested that the rules should require the moving party to apprise the court in the moving
papers of any pending trial date or the fact that a date has not been set. The Committee believes
that the provisions of Rules 1:2-4 and 4:6-4(b), the latter of which is applicable to the Special
Civil Part pursuant R. 6:3-1, are sufficient to deal with those instances of procedural impropriety
that are committed by attorneys in the conduct of their cases. The Committee also notes that
because the Special Civil Part is up to date with its trial calendars, it is rare to have an open case
that does not have a trial date. Court staff can discern immediately if there is a trial date and a
variety of mechanisms for apprising the judge of a trial date were discussed. In short, the
Committee did not believe that this additional burden should be imposed on attorneys.
16
B. Proposed Amendment to R. 6:6-7 – Documentation of Judgment Satisfaction
The Committee considered correspondence from a member stating that while N.J.S.A.
2A:16-46 requires the party who receives full satisfaction of a judgment to either file a warrant to
satisfy the judgment or furnish the warrant to the party who made satisfaction, the court rules do
not explicitly require this. The problem could be corrected in Special Civil, he averred, by
adding a provision to R. 6:6-7 to that effect. Rule 6:6-7 provides a mechanism for the party
making satisfaction to obtain a certificate of satisfaction from the Special Civil Part Clerk in
situations where the judgment-creditor has failed to provide a warrant for satisfaction and no
execution issued on the judgment has been returned fully paid. The Committee rejected the
proposal because R. 4:48-1 already requires the party receiving satisfaction to either file a
warrant with the Clerk or provide one to the party making satisfaction, and this rule is applicable
to actions in the Special Civil Part by virtue of R. 6:6-1.
17
III. OTHER RECOMMENDATIONS – NONE
18
IV. LEGISLATION – NONE
19
V. MATTERS HELD FOR CONSIDERATION
A. Use of Credit Cards to Pay Fees and Post Deposits
In its 2010 Report to the Supreme Court the Committee endorsed the idea of permitting
the payment of filing fees and posting of deposits by credit card but recognizes that formulation
of the language for the rule change should await completion of the AOC’s work on this project.
Staff informed the Committee that the Information Technology Office, Office of Management
Services and the Civil Practice Division of the Office of Trial Court Services have not yet
completed their work.
20
B. “Shotgun” Bank Levies
The Committee indicated in its 2010 Report to the Supreme Court that it had discussed
and held for further consideration the practice of some Special Civil Part Officers using a
“shotgun” approach by serving copies of writs of execution on a number of banks, not knowing
whether the judgment-debtor in fact has an account at any of them. The Committee stated in the
Report that it had asked for advice from the Conference of Civil Division Managers, the Special
Civil Part Management Committee and the Committee of Special Civil Part Supervising Judges
as to the extent of the practice and the problems, if any, that it raises. After the Committee filed
its 2010 Report it received input from all of these groups and decided that more time is needed to
discuss the subject and formulate recommendations to the Supreme Court.
21
C. Proposed Amendment to R. 6:7-2(b)(2) - Eliminate Requirement of Serving
Defendant With Information Subpoena Before Serving Banks
The Committee also stated in its 2010 Report to the Supreme Court that it was
considering a proposed amendment to R. 6:7-2(b)(2) that would eliminate the requirement,
presently in the rule, of serving a judgment debtor with an information subpoena and getting no
response, before the judgment-creditor can serve an information subpoena on a bank to find out
if the debtor has an account there. The Committee will consider this issue together with the
subject of "shotgun" bank levies.
22
VI. CONCLUSION
The members of the Supreme Court Committee on Special Civil Part Practice appreciate
the opportunity to have served the Supreme Court in this capacity.
Respectfully submitted,
Hon. Joseph R. Rosa, J.S.C., Chair
Mary Braunschweiger, Civ. Div. Mgr.
Felipe Chavana, Esq.
I. Mark Cohen, Esq.
Gregory G. Diebold, Esq.
JoAnn Ezze, Asst. Civ. Div. Mgr.
Gerard J. Felt, Esq.
Eric H. Fields, Court Officer
Lloyd Garner, Esq., Asst. Civ. Div. Mgr.
Joanne Gottesman
Linda G. Hampton, Esq.
Hon. John E. Harrington, J.S.C.
Kennon Jenkins
Hon. Fred H. Kumpf, J.S.C.
Adolfo L. Lopez, Esq.
David G. McMillin, Esq.
Jonathan Mehl, Esq.
Raymond F. Meisenbacher, Jr., Esq.
Hon. David W. Morgan, J.S.C.
Anshu Pathak, Esq.
W. Peter Ragan, Sr., Esq.
Daniel I. Rubin, Esq.
Stephen E. Smith, Esq.
Hon. Jerome M. St. John, J.S.C.
William A. Thompon, II, Esq.
Andrew R. Wolf, Esq.
Robert J. Piscopo, AOC Staff
Robert D. Pitt, Esq., AOC Staff
OF THE SUPREME COURT COMMITTEE
ON SPECIAL CIVIL PART PRACTICE
MARCH 12, 2010
i
TABLE OF CONTENTS
____________________________________
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION ........... 1
A. Proposed Amendments to Rules 4:17-5 and 4:18-1 – Amendments
Proposed by the Civil Practice Committee That Will Affect
Special Civil Part Practice ................................................................ 1
B. Proposed Amendment to R. 6:4-3(f) - Discovery in Actions
Cognizable But Not Filed in Small Claims ..................................... 8
C. PROPOSED AMENDMENTS TO APPENDIX VI – NOTICE TO
DEBTOR ..............................................................................................10
D. PROPOSED AMENDMENT TO R. 6:2-3(B) – SERVICE OF ORIGINAL
PROCESS IN TENANCY ACTIONS ....................................................... 12
II. RULE AMENDMENTS CONSIDERED AND REJECTED ................. 15
A. PROPOSED AMENDMENTS TO R. 6:3-3 – MOTION PRACTICE .......... 15
B. PROPOSED AMENDMENT TO R. 6:6-7 – DOCUMENTATION OF
JUDGMENT SATISFACTION .................................................................16
III. OTHER RECOMMENDATIONS – NONE ............................................ 17
IV. LEGISLATION – NONE .......................................................................... 18
ii
V. MATTERS HELD FOR CONSIDERATION ......................................... 19
A. USE OF CREDIT CARDS TO PAY FEES AND POST DEPOSITS ............. 19
B. “SHOTGUN” BANK LEVIES ................................................................ 20
C. PROPOSED AMENDMENT TO R. 6:7-2(B)(2) - ELIMINATE
REQUIREMENT OF SERVING DEFENDANT WITH INFORMATION
SUBPOENA BEFORE SERVING BANKS ............................................... 21
VI. CONCLUSION .......................................................................................... 22
1
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendments to Rules 4:17-5 and 4:18-1 – Amendments Proposed
by the Civil Practice Committee That Will Affect Special Civil Part Practice
In its 2010 Report to the Supreme Court, the Civil Practice Committee has proposed
amendments to two rules that will affect practice in the Special Civil Part. The first involves
amending R. 4:17-5 so as to clarify the rule by expressly prohibiting the use of general, nonspecific
objections to interrogatories and requiring that any objections be addressed to specific
questions. The second involves a similar amendment to R. 4:18-1 that would prohibit the use of
general, non-specific objections to requests for the production of documents and require a
certification that all documents relevant to the request were produced. Both rules apply to the
Special Civil Part by virtue of R. 6:4-3(a) and (e). The Special Civil Part Practice Committee
supports the changes proposed by the Civil Practice Committee. The proposed amendments
follow.
2
4:17-5. Objections to Interrogatories
(a) [Objections to Questions; Motions. A party upon whom interrogatories are served
who objects to any questions propounded therein may either answer the question by stating, “The
question is improper” or may, within 20 days after being served with the interrogatories, serve a
notice of motion, to be brought on for hearing at the earliest possible time, to strike any question,
setting out the grounds of objection. The answering party shall make timely answer, however, to
all questions to which no objection is made. Interrogatories not stricken shall be answered
within such unexpired period of the 60 days prescribed by R. 4:17-4(b) as remained when the
notice of motion was served or within such time as the court directs. The propounder of a
question answered by a statement that it is improper may, within 20 days after being served with
the answers, serve a notice of motion to compel an answer to the question, and, if granted, the
question shall be answered within such time as the court directs.]
General Objections. General objections to the interrogatories as a whole are not
permitted and shall be disregarded by the court and adverse parties.
(b) Specific Objections. A party served with interrogatories who objects to any
specific question propounded therein may either state with specificity the ground of objection
and answer the question subject to the stated objection, or, within 20 days after being served with
the interrogatories, serve a notice of motion returnable at the earliest possible time to strike any
question setting forth the grounds of the objection. The answering party shall, however, answer
all questions not objected to as herein provided. The propounder of the question objected to
may, within 20 days after service of the answer, move to strike the objection and compel an
answer. Questions not stricken or to which an answer is compelled shall be answered within the
time fixed by the court.
3
[(b)](c) …no change.
[(c)](d) …no change.
[(d)](e) [Costs and Fees] Award of Expenses on Motion. [If the court finds that a
motion made pursuant to this rule was made frivolously or for the purpose of delay or was
necessitated by action of the adverse party that was frivolous or taken for the purpose of delay,
the court may order the offending party to pay the amount of reasonable expenses, including
attorney's fees, incurred by the other party in making or resisting the motion.] The provisions of
R. 4:23-1(c) apply to expenses incurred on motions made pursuant to this rule.
Note: Source — R.R. 4:23-8 (first, second, third, fourth and seventh sentences).
Paragraph (c) adopted July 14, 1972 to be effective September 5, 1972; paragraphs (a) and (b)
amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended, new
paragraph (b) added, former paragraph (b) becomes new paragraph (c), former paragraph (c)
becomes new paragraph (d), and former paragraph (d) becomes new paragraph (e) as amended
to be effective .
4
4:18-1. Production of Documents, Electronically Stored Information, and Things and
Entry Upon Land for Inspection and Other Purposes; Pre-Litigation Discovery
(a) …no change.
(b) Procedure; Continuing Obligation; Failure to Respond; Objections; Motions.
(1) Procedure for Request. The request may, without leave of court, be served on the
plaintiff after commencement of the action and on any other party with or after service of the
summons and complaint on that party. A copy of the request shall also be simultaneously served
on all other parties to the action. The request shall set forth the items to be inspected either by
individual item or by category, and describe each item and category with reasonable
particularity. The request shall specify a reasonable time, place, and manner of making the
inspection and performing the related acts. The request may specify the form or forms in which
electronically stored information is to be produced.
(2) Procedure for Response. The party on whom the request is served shall serve a
written response within 35 days after the service of the request, except that a defendant may
serve a response within 50 days after service of the summons and complaint on that defendant.
On motion, the court may allow a shorter or longer time. The written response[, without
documentation annexed but which shall be made available to all parties on request, shall be
served by the party to whom the request was made on all other parties to the action. The
response shall state, with respect to each item or category, that inspection and related activities
will be permitted as requested, unless the request is objected to, including an objection to the
requested form or forms for producing electronically stored information, stating the reasons for
objection. If objection is made to part of an item or category, the part shall be specified and
inspection permitted of the remaining parts. If objection is made to the requested form or forms
5
for producing electronically stored information or if no form was specified in the request, the
responding party shall state the form or forms it intends to use. The party submitting the request
may move for an order of dismissal or suppression or an order to compel pursuant to R. 4:23-5
with respect to any objection to or other failure to respond to the request or any part thereof or
any failure to permit inspection as requested. If a party who has furnished a written response to a
request to produce or who has supplied documents in response to a request to produce thereafter
obtains additional documents that are responsive to the request, an amended written response and
production of such documents, as appropriate, shall be served promptly.] shall be made by the
party upon whom it is served if an individual, or, if a governmental, commercial, or charitable
entity, by an officer or agent thereof. The person making the response shall swear or certify in
the form prescribed by paragraph (c) of this rule that it is complete and accurate based on
personal knowledge and/or upon information if provided by others, whose identity and source of
knowledge shall be disclosed. The written response shall be served on the requesting party and a
copy on all other parties. The written response shall either include the requested documents or
other material or state, with respect to each item or category, that inspection and related activities
will be permitted as requested. If the written response provides documents to the requesting
party, those documents shall be provided to or made available to any other party upon request.
Unless the parties otherwise agree, or the court otherwise orders:
[(1)](A) a party who produces documents for inspection shall produce them as they
are kept in the usual course of business or shall organize and label them to correspond with the
categories in the request;
6
[(2)](B) if a request does not specify the form or forms for producing electronically
stored information, a responding party shall produce the information in a form or forms in which
it is ordinarily maintained or in a form or forms that are reasonably usable; and
[(3)](C) a party need not produce the same electronically stored information in
more than one form.
(3) Continuing Obligation. If a party who has furnished a written response to a
request to produce or who has supplied documents in response to a request to produce thereafter
obtains additional documents that are responsive to the request, a supplemental written response
and production of such documents, as appropriate, shall be served promptly.
(4) Objections; Failure to Respond; Motions. General objections to the request as a
whole are not permitted and shall be disregarded by the court and adverse parties. The party
upon whom the request is served may, however, object to a request on specific grounds and, if on
the ground of privilege or accessibility of electronically stored information, the objection shall be
made in accordance with R. 4:10-2(e) and (f) respectively. The requesting party may move for
an order of dismissal or suppression or an order to compel pursuant to R. 4:23-5 with respect to
any objection to or other failure to respond to the request or any part thereof or any failure to
permit inspection as requested. The provisions of R. 4:23-1(c) apply to the award of expenses
incurred in relation to motions made pursuant to this rule.
(c) Certification or Affidavit of Completeness. The person responding to the request
shall submit with the response a certification stating or affidavit averring as follows:
I hereby certify (or aver) that I have reviewed the document production request and that I
have made or caused to be made a good faith search for documents responsive to the request. I
further certify (or aver) that as of this date, to the best of my knowledge and information, the
7
production is complete and accurate based on ( ) my personal knowledge and/or ( ) information
provided by others. The following is a list of the identity and source of knowledge of those who
provided information to me:
(d) Persons Not Parties. This rule does not preclude an independent action against a
person not a party for production of documents and things and permission to enter upon land.
Pre-litigation discovery within the scope of this rule may also be sought by petition pursuant to
R. 4:11-1.
Note: Source — R.R. 4:24-1. Former rule deleted and new R. 4:18-1 adopted July 14,
1972 to be effective September 5, 1972; rule caption and paragraph (c) amended July 14, 1992 to
be effective September 1, 1992; paragraphs (a) and (b) amended July 13, 1994 to be effective
September 1, 1994; paragraph (b) amended July 10, 1998 to be effective September 1, 1998;
paragraph (b) amended July 5, 2000 to be effective September 5, 2000; paragraph (b) amended
July 12, 2002 to be effective September 3, 2002; caption and paragraphs (a) and (b) amended
July 27, 2006 to be effective September 1, 2006; paragraph (b) amended, new paragraph (c)
added, and former paragraph (c) becomes new paragraph (d) to be effective .
8
B. Proposed Amendment to R. 6:4-3(f) - Discovery in Actions Cognizable But
Not Filed in Small Claims
Rule 6:4-3(a) provides that interrogatories are not permitted in Small Claims, but
members of the Committee reported that some litigants and attorneys have expressed the view,
over the years, that discovery is permitted in Small Claims and they rely on the title to R. 6:4-
3(f), which reads, “Actions Cognizable in Small Claims Section, Discovery.” They insist that
the title of this rule clearly permits discovery in Small Claims and they have quoted Judge
Pressler's comment 2.1 to the rule which says, in relevant part: "In Small Claims Actions,
defined as actions within the monetary limit of the Small Claims Section, whether or not
pending, interrogatories are permitted only as provided by Paragraph (e) of this rule."
The Committee believes that the first sentence of paragraph (a) of the rule clearly excludes
actions filed or pending in the Small Claims Section from the use of interrogatories otherwise
permitted by the rule. It states:
Except as otherwise provided by R. 6:4-3(b) interrogatories may be served pursuant to
the applicable provisions of R. 4:17 in all actions except forcible entry and detainer
actions, summary landlord and tenant actions for the recovery of premises, and actions
commenced or pending in the Small Claims Section.
A minor editing of the title and body of paragraph (f) should remove the cause of any ambiguity
that may currently exist. The proposed amendments follow.
9
6:4-3. Interrogatories; Admissions; Production
(a) ... no change.
(b) ... no change.
(c) ... no change.
(d) ... no change.
(e) ... no change.
(f) Actions Cognizable But Not Pending in Small Claims Section, Discovery. Any
action filed in the Special Civil Part that is cognizable but not pending in the Small Claims
Section [of the Special Civil Part shall] may proceed with [without] discovery, [except that] but
each party is limited to serving [may serve] interrogatories consisting of no more than five
questions without parts. Such interrogatories shall be served and answered within the time limits
set forth in R. 6:4-3(a). Additional interrogatories may be served and enlargements of time to
answer may be granted only by court order on timely notice of motion for good cause shown.
Note: Source – R.R. 7:6-4A (a) (b) (c), 7:6-4B, 7:6-4C. Caption amended and paragraph (c)
adopted July 7, 1971 to be effective September 13, 1971; caption amended, paragraph (a)
amended, and paragraph (d) adopted July 29, 1977 to be effective September 6, 1977; paragraph
(a) amended July 24, 1978 to be effective September 11, 1978; paragraph (e) adopted July 15,
1982 to be effective September 13, 1982; paragraph (e) amended July 22, 1983 to be effective
September 12, 1983; paragraphs (a), (c), (d) and (e) amended November 7, 1988 to be effective
January 2, 1989; paragraph (a) amended, paragraph (b) adopted and former paragraphs (b), (c),
(d) and (e) redesignated as (c), (d), (e) and (f) respectively, June 29, 1990 to be effective
September 4, 1990; paragraph (b) amended August 31, 1990, to be effective September 4, 1990;
paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (c)
caption and text amended, and paragraph (f) amended July 12, 2002 to be effective September 3,
2002; former paragraph (b) deleted and paragraphs (c), (d), (e) and (f) redesignated as paragraphs
(b), (c), (d) and (e), respectively, July 28, 2004, to be effective September 1, 2004; paragraph (b)
amended, new paragraph (c) adopted, and former paragraphs (c), (d), (e) redesignated as
paragraphs (d), (e), (f) July 27, 2006 to be effective September 1, 2006; paragraph (a) amended
August 1, 2006 to be effective September 1, 2006; paragraph (f) caption and text amended
, 2010 to be effective , 2010.
10
C. Proposed Amendments to Appendix VI – Notice to Debtor
The Special Civil Part Management Committee (composed of the Assistant Civil
Division Managers responsible for supervising the Special Civil Part Clerk's Office in each
county) and the Conference of Civil Division Managers proposed revisions to the Notice to
Debtor set forth in Appendix VI to the court rules. The Notice to Debtor advises the judgmentdebtor
of a levy on assets to satisfy a judgment and the steps that can be taken to contest the levy.
The Special Civil Part Practice Committee agrees with the proposed revisions, which are
intended to provide the debtor with more information in a single document about efforts to
collect the judgment by listing all the bank accounts and/or other items of personal property that
have been levied upon by the Special Civil Part Officer. The current form has space for only one
account or item of property. The levying Officer thus has to mail several different Notices when
levying on multiple accounts, as they often do, and this can be confusing for judgment-debtors.
The revisions would also eliminate, from the Certification of Service, the statement that a copy
has been mailed to the clerk of the court, in keeping with this Committee's proposed amendment
to R. 6:7-1(b), which would eliminate this requirement if approved by the Supreme Court (see
2010 Report of the Supreme Court Committee on Special Civil Part Practice, item I.E. on pages
13-15). Please note that the Notice to Debtor set forth in Appendix VI to the rules applies to
Civil Part actions as well as Special Civil Part actions, by virtue of R. 4:59-1(g). The proposed
amendments to the Notice to Debtor follow.
11
APPENDIX VI. NOTICE TO DEBTOR, (Rules 4:59-1(g) and 6:7-1(b))
Re:
_______________________________________
v.
Superior Court of New Jersey
Law Division, Special Civil Part
____________________County
Docket No: ___________________
Notice to Debtor
To: _______________________________________________, designated defendant:
Your asset, in an amount not to exceed $ _____________ has been levied upon at the instruction of:
_______________________________________to satisfy in whole or in part the judgment against you in the above
matter. Some property may be exempt from execution by Federal and State law, including but not limited to clothing
and a total of $1,000.00 of cash and personal property, except for goods purchased as part of the transaction, which led
to the judgment in this case. In addition, welfare benefits, social security benefits, S.S.I. benefits, V.A. benefits,
unemployment benefits, workers' compensation benefits and child support you receive are exempt, even if the funds
have been deposited in a bank account.
If the levy is against a bank account, the bank has already been notified to place a hold on your account. However,
the funds will not be taken from your account until the court so orders. You may claim your exemption by notifying the
clerk of the court and the person who ordered this levy of your reasons why your property is exempt. This claim must be
in writing and if it is not mailed within 10 days of service of this notice, your property is subject to further proceedings for
execution. The address of the court is: ________________________________________________________.
A Levy has been served on the following:
1.
2.
3.
4.
5.
The name and address of the person who ordered this levy is:
CERTIFICATION OF SERVICE
I mailed a copy of this notice to the defendant(s) and the person who requested the levy on , 20 , the same
day this levy was made. I certify that the foregoing statements made by me are true. I am aware that if the foregoing
statements made by me are willfully false, I am subject to punishment.
Date: (Signature)
(Court Officer)
[Note: Amended July 14, 1992, effective September 1, 1992; amended July 13, 1994, effective September 1, 1994;
amended July5, 2000, effective September 5, 2000; amended July 27, 2006 to be effective September 1, 2006; amended
,2010 to be effective , 2010.]
12
D. Proposed Amendment to R. 6:2-3(b) – Service of Original Process in Tenancy
Actions
The Committee has proposed, in its 2010 Report to the Supreme Court, to amend R. 6:2-
3(b) so as to require personal service of original process (summons and complaint) in tenancy
actions, but permit attachment to the door of the defendant’s unit if the Special Civil Part Officer
is unable to personally deliver it to the defendant or a member of the defendant’s household over
the age of 14 years. This is intended to resolve a perceived discrepancy between the statute and
the court rule governing service of original process in tenancy actions. N.J.S.A. 2A:18-54
provides for service of the summons and complaint by posting in those situations where
admission to the subject premises is refused or no person above the age of 14 is present. Rule
6:2-3(b), on the other hand, currently requires service by mail and by either personal delivery or
posting. In other words, there is no requirement in the rule that the Special Civil Part Officer
first attempt personal service before posting. The Committee noted that, if adopted, this rule
change will require a modification of the Officer’s return of service on the summons and this was
addressed in the next section of the Report.
At a recent meeting of the Committee AOC staff advised the members that comments
expressing serious concerns about the new rule's impact on the Special Civil Part Officers and
court calendars should be expected to be filed with the Supreme Court by the Conference of
Civil Division Managers, the Conference's Special Civil Part Management Committee and the
Committee of Special Civil Part Supervising Judges. The Committee then considered whether
its members wished, at this time, to modify the proposal and decided, by an evenly divided vote
that was broken by the chair, to leave the proposal in its current form. The text of the proposed
amendment to the rule follows.
13
6:2-3. Service of Process
(a) By Whom Served. ... no change.
(b) Manner of Service. Service of process within this State shall be made in accordance
with R. 6:2-3(d) or as otherwise provided by court order consistent with due process of law, or in
accordance with R. 4:4-5. Substituted service within this State shall be made pursuant to R. 6:2-
3(d). Substituted or constructive service outside this State may be made pursuant to the
applicable provisions in R. 4:4-4 or R. 4:4-5.
In summary actions for the recovery of premises [landlord and tenant actions], service of
process shall be by ordinary mail and by [either] delivery personally pursuant to R. 4:4-4. When
the person serving process is unable to effectuate service by delivering process personally,
service may be effectuated [or] by affixing a copy of the summons and complaint on the door of
the unit occupied by the defendant [subject premises]. When the plaintiff-landlord has reason to
believe that service may not be made at the subject premises, the landlord shall also request
service at an address, by certified and regular mail addressed to the tenant, where the landlord
believes that service will be effectuated. The landlord shall furnish to the clerk two additional
copies of the summons and complaint for each defendant for this purpose.
(c) Notice of Service. ... no change.
(d) Service by Mail Program. ... no change.
(e) General Appearance; Acknowledgement of Service. ... no change.
Note: Source--R.R. 7:4-6(a)(b) (first three sentences), 7:4-7. Paragraph (a) amended July 7,
1971 effective September 13, 1971; paragraph (a) amended July 14, 1972 to be effective
September 5, 1972; paragraph (b) amended November 27, 1974 to be effective April 1, 1975;
paragraphs (a)(b) amended July 17, 1975 to be effective September 8, 1975; paragraph (a)
amended July 16, 1979 to be effective September 10, 1979; paragraph (a) amended July 21, 1980
to be effective September 8, 1980; paragraph (b) amended July 16, 1981 to be effective
September 14, 1981; paragraphs (a) and (b) amended and paragraph (d) adopted November 5,
14
1986 to be effective January 1, 1987; paragraph (c) amended November 7, 1988 to be effective
January 2, 1989; paragraphs (b) and (d) amended June 29, 1990 to be effective September 4,
1990; paragraph (d) amended July 17, 1991 to be effective immediately; paragraph (e) adopted
July 14, 1992 to be effective September 1, 1992; paragraphs (a) and (e) amended July 13, 1994
to be effective September 1, 1994; paragraph (d)(4) amended July 5, 2000 to be effective
September 5, 2000; paragraphs (a), (b), (d), (d)(2), and (e) amended July 12, 2002 to be effective
September 3, 2002; paragraphs (b), d(4) and (5) amended July 28, 2004 to be effective
September 1, 2004; paragraph (b) amended__________, 2010 to be effective___________,2010.
15
II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Proposed Amendments to R. 6:3-3 – Motion Practice
The Committee considered a letter from a judge in which he discussed two problems with
the current motion practice in the Special Civil Part. The first involved needless motions that are
filed when counsel are careless and, for example, file motions that are moot and he suggested
that provision should be made in the rules for sanctions in these situations. In the second he
suggested that the rules should require the moving party to apprise the court in the moving
papers of any pending trial date or the fact that a date has not been set. The Committee believes
that the provisions of Rules 1:2-4 and 4:6-4(b), the latter of which is applicable to the Special
Civil Part pursuant R. 6:3-1, are sufficient to deal with those instances of procedural impropriety
that are committed by attorneys in the conduct of their cases. The Committee also notes that
because the Special Civil Part is up to date with its trial calendars, it is rare to have an open case
that does not have a trial date. Court staff can discern immediately if there is a trial date and a
variety of mechanisms for apprising the judge of a trial date were discussed. In short, the
Committee did not believe that this additional burden should be imposed on attorneys.
16
B. Proposed Amendment to R. 6:6-7 – Documentation of Judgment Satisfaction
The Committee considered correspondence from a member stating that while N.J.S.A.
2A:16-46 requires the party who receives full satisfaction of a judgment to either file a warrant to
satisfy the judgment or furnish the warrant to the party who made satisfaction, the court rules do
not explicitly require this. The problem could be corrected in Special Civil, he averred, by
adding a provision to R. 6:6-7 to that effect. Rule 6:6-7 provides a mechanism for the party
making satisfaction to obtain a certificate of satisfaction from the Special Civil Part Clerk in
situations where the judgment-creditor has failed to provide a warrant for satisfaction and no
execution issued on the judgment has been returned fully paid. The Committee rejected the
proposal because R. 4:48-1 already requires the party receiving satisfaction to either file a
warrant with the Clerk or provide one to the party making satisfaction, and this rule is applicable
to actions in the Special Civil Part by virtue of R. 6:6-1.
17
III. OTHER RECOMMENDATIONS – NONE
18
IV. LEGISLATION – NONE
19
V. MATTERS HELD FOR CONSIDERATION
A. Use of Credit Cards to Pay Fees and Post Deposits
In its 2010 Report to the Supreme Court the Committee endorsed the idea of permitting
the payment of filing fees and posting of deposits by credit card but recognizes that formulation
of the language for the rule change should await completion of the AOC’s work on this project.
Staff informed the Committee that the Information Technology Office, Office of Management
Services and the Civil Practice Division of the Office of Trial Court Services have not yet
completed their work.
20
B. “Shotgun” Bank Levies
The Committee indicated in its 2010 Report to the Supreme Court that it had discussed
and held for further consideration the practice of some Special Civil Part Officers using a
“shotgun” approach by serving copies of writs of execution on a number of banks, not knowing
whether the judgment-debtor in fact has an account at any of them. The Committee stated in the
Report that it had asked for advice from the Conference of Civil Division Managers, the Special
Civil Part Management Committee and the Committee of Special Civil Part Supervising Judges
as to the extent of the practice and the problems, if any, that it raises. After the Committee filed
its 2010 Report it received input from all of these groups and decided that more time is needed to
discuss the subject and formulate recommendations to the Supreme Court.
21
C. Proposed Amendment to R. 6:7-2(b)(2) - Eliminate Requirement of Serving
Defendant With Information Subpoena Before Serving Banks
The Committee also stated in its 2010 Report to the Supreme Court that it was
considering a proposed amendment to R. 6:7-2(b)(2) that would eliminate the requirement,
presently in the rule, of serving a judgment debtor with an information subpoena and getting no
response, before the judgment-creditor can serve an information subpoena on a bank to find out
if the debtor has an account there. The Committee will consider this issue together with the
subject of "shotgun" bank levies.
22
VI. CONCLUSION
The members of the Supreme Court Committee on Special Civil Part Practice appreciate
the opportunity to have served the Supreme Court in this capacity.
Respectfully submitted,
Hon. Joseph R. Rosa, J.S.C., Chair
Mary Braunschweiger, Civ. Div. Mgr.
Felipe Chavana, Esq.
I. Mark Cohen, Esq.
Gregory G. Diebold, Esq.
JoAnn Ezze, Asst. Civ. Div. Mgr.
Gerard J. Felt, Esq.
Eric H. Fields, Court Officer
Lloyd Garner, Esq., Asst. Civ. Div. Mgr.
Joanne Gottesman
Linda G. Hampton, Esq.
Hon. John E. Harrington, J.S.C.
Kennon Jenkins
Hon. Fred H. Kumpf, J.S.C.
Adolfo L. Lopez, Esq.
David G. McMillin, Esq.
Jonathan Mehl, Esq.
Raymond F. Meisenbacher, Jr., Esq.
Hon. David W. Morgan, J.S.C.
Anshu Pathak, Esq.
W. Peter Ragan, Sr., Esq.
Daniel I. Rubin, Esq.
Stephen E. Smith, Esq.
Hon. Jerome M. St. John, J.S.C.
William A. Thompon, II, Esq.
Andrew R. Wolf, Esq.
Robert J. Piscopo, AOC Staff
Robert D. Pitt, Esq., AOC Staff
2010 Supplemental Report of the Supreme Court Civil Practice Committee
2010 Supplemental Report
of the Supreme Court
Civil Practice Committee
March 1, 2010
TABLE OF CONTENTS
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION................................. 1
A. PROPOSED AMENDMENTS TO R. 1:21-7 — CONTINGENT FEES ............................................ 1
B. PROPOSED AMENDMENTS TO R. 4:64-9 — MOTIONS IN UNCONTESTED MATTERS .............. 4
II. MATTERS HELD FOR CONSIDERATION................................................................ 7
A. PROPOSED AMENDMENTS TO R. 1:5-6 — FILING ................................................................. 7
B. PROPOSED AMENDMENTS TO R. 1:8-8 — MATERIALS TO BE SUBMITTED TO THE JURY;
NOTE-TAKING; JUROR QUESTIONS....................................................................................... 8
C. PROPOSED AMENDMENTS TO R. 1:21-7 — CONTINGENT FEES ............................................ 9
D. PROPOSED AMENDMENTS R. 4:4-7 — RETURN.................................................................. 10
— 1 —
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendments to R. 1:21-7 — Contingent Fees
Rule 1:21-7(c) sets the percentages of contingent fee recovery. Subsection (c)(6) states
that where the amount recovered is for the benefit of a minor or incapacitated individual, the
amount is limited to 25% if the fee is recovered by settlement without trial. A Committee
member requested that the Committee clarify what is meant by the phrase “recovered by
settlement without trial….” In the absence of a definition of the phrase, attorneys may be
tempted to pursue trial to a point where the greater fee would be permitted. It was proposed that
clarification of the phrase would avoid inconsistent rulings by trial judges, unintentional but
potentially unethical behavior by counsel, and the needless risk to a client as a result of the
establishment arbitrary stages in a proceeding that trigger a higher fee. The Committee agreed
that the rule should be amended to clarify that the 25% rate would apply to any settlement that
occurred prior to the close of evidence. At the conclusion of the trial, the attorney will have the
right to apply for an enhancement, under subsection (f) of the rule, and the enhancement would
be limited to the standard rate of recovery, that is 33⅓%. Such clarification will foster
uniformity in the application of the rule and will also encourage settlement at earlier stages of the
proceeding.
See Section II.C. of this Report for proposed amendments to R. 1:21-7 that are being held
for consideration.
The proposed amendments to R. 1:21-7 follow.
— 2 —
1:21-7. Contingent Fees
(a) …no change.
(b) …no change.
(c) In any matter where a client's claim for damages is based upon the alleged
tortious conduct of another, including products liability claims and claims among family
members that are subject to Part V of these Rules but excluding statutorily based discrimination
and employment claims, and the client is not a subrogee, an attorney shall not contract for,
charge, or collect a contingent fee in excess of the following limits:
(1) 33⅓% on the first $500,000 recovered;
(2) 30% on the next $500,000 recovered;
(3) 25% on the next $500,000 recovered;
(4) 20% on the next $500,000 recovered; and
(5) on all amounts recovered in excess of the above by application for reasonable fee
in accordance with the provisions of paragraph (f) hereof; and
(6) where the amount recovered is for the benefit of a client who was a minor or
mentally incapacitated when the contingent fee arrangement was made, the foregoing limits shall
apply, except that the fee on any amount recovered by settlement prior to the close of evidence at
[without] trial shall not exceed 25%, provided that the fee may be enhanced pursuant to
paragraph (f) of this rule subject, however, to the maximum fee allowed by paragraph (c) of this
rule.
(d) …no change.
(e) …no change.
(f) …no change.
— 3 —
(g) …no change.
(h) …no change.
(i) …no change.
Note: Source — R. 1:21-6(f), as adopted July 7, 1971 to be effective September 13,
1971 and deleted December 21, 1971 to be effective January 31, 1972. Adopted December 21,
1971 to be effective January 31, 1972. Amended June 29, 1973 to be effective September 10,
1973. Paragraphs (c) and (e) amended October 13, 1976, effective as to contingent fee
arrangements entered into on November 1, 1976 and thereafteR. Closing statements on all
contingent fee arrangements filed as previously required between January 31, 1972 and January
31, 1973 shall be filed with the Administrative Office of the Courts whenever the case is closed;
paragraph (c) amended July 29, 1977 to be effective September 6, 1977; paragraph (d) amended
July 24, 1978 to be effective September 11, 1978; paragraph (c) amended and new paragraphs
(h) and (i) adopted January 16, 1984, to be effective immediately; paragraph (d) amended July
26, 1984 to be effective September 10, 1984; paragraph (e) amended June 29, 1990 to be
effective September 4, 1990; paragraphs (b) and (c)(5) amended July 13, 1994 to be effective
September 1, 1994; paragraph (c) amended June 28, 1996 to be effective September 1, 1996;
paragraph (c) amended January 21, 1999 to be effective April 5, 1999; paragraphs (g) and (h)
amended July 5, 2000 to be effective September 5, 2000; paragraph (c) amended July 12, 2002 to
be effective September 3, 2002; paragraphs (d) and (f) amended July 9, 2008 to be effective
September 1, 2008; paragraph (c)(6) amended to be effective .
— 4 —
B. Proposed Amendments to R. 4:64-9 — Motions in Uncontested Matters
To encourage the filing of responsive and specific objections to motions in foreclosure
matters, the Office of Foreclosure recommended the addition of language to R. 4:64-9 to clarify
that, for motions to be heard by a judge, the objections must address the subject of the motion
and state the basis of the objection with specificity. The Committee supported the Office of
Foreclosure’s recommendation. Legal Services expressed concern that litigants’ responses to
motions using less than precise legal terminology will not be heard by a judge. It was explained
that the amendment was proposed to encourage more specific responses and to avoid the
necessity of sending motions to judges where the objection presented is unexplained or unrelated
to the subject of the motion. It is intended that any objection, if it is related to the subject of the
motion, will be forwarded to a judge regardless of any drafting irregularities.
The proposed amendments to R. 4:64-9 follow.
— 5 —
4:64-9. Motions in Uncontested Matters
A notice of motion filed with the Office of Foreclosure shall not state a time and place for
its resolution. The notice of motion shall state the address of the Office of Foreclosure and that
the order sought will be entered in the discretion of the court unless the attorney or pro se party
on whom it has been served notifies in writing the Office of Foreclosure and the attorney for the
moving party or the pro se party within ten days after the date of service of the motion that the
responding party objects to the entry of the order. On receipt of a[n] specific objection or at the
direction of the court, the Office of Foreclosure shall deliver the foreclosure case file to the judge
in the county of venue, who shall schedule such further proceedings and notify the parties or
their attorneys of the time and place thereof.
Every notice of motion in a foreclosure action shall include the following language:
“IF YOU WANT TO OBJECT TO THIS MOTION YOU MUST DO SO IN WRITING
WITHIN 10 DAYS AFTER THE DAY YOU RECEIVED THIS MOTION. ANY OBJECTION
MUST ADDRESS THE SUBJECT OF THE MOTION AND DETAIL WITH SPECIFICITY
THE BASIS OF THE OBJECTION. YOU MUST FILE YOUR OBJECTION WITH THE
OFFICE OF FORECLOSURE, P.O. BOX 971, 25 MARKET STREET, TRENTON, NEW
JERSEY 08625, AND SERVE A COPY ON THE MOVING PARTY. THE OFFICE OF
FORECLOSURE DOES NOT CONDUCT HEARINGS. YOUR PERSONAL APPEARANCE
AT THE OFFICE WILL NOT QUALIFY AS AN OBJECTION. IF YOU FILE A[N]
SPECIFIC OBJECTION, THE CASE WILL BE SENT TO A JUDGE FOR RESOLUTION.
YOU WILL BE INFORMED BY THE JUDGE OF THE TIME AND PLACE OF THE
HEARING ON THE MOTION.”
— 6 —
Note: Adopted July 9, 2008 to be effective September 1, 2008; amended
to be effective .
— 7 —
II. MATTERS HELD FOR CONSIDERATION
A. Proposed Amendments to R. 1:5-6 — Filing
The Conference of General Equity Presiding Judges recommended a change to
R. 1:5-6(c)(2). Pursuant to the rule as currently constituted, answers submitted for filing by
defendants against whom default has been entered in mortgage or tax foreclosure actions are
exempt from being stamped “received but not filed” and returned to the filer. The Conference
recommended that the exemption be removed, thus requiring answers presented by defendants in
default in foreclosure cases to be treated as in other cases where a party is in default, i.e.,
returned marked “received but not filed” with notice that the defendant may move to vacate the
default. This proposal was not discussed by the Committee and so will be carried over to the
next rules cycle.
— 8 —
B. Proposed Amendments to R. 1:8-8 — Materials to be Submitted to the Jury;
Note-taking; Juror Questions
The Supreme Court in State v. O’Brien, 199 N.J. 127 (2009) asked both the Civil and
Criminal Practice Committees to consider whether there should be a more detailed standard to
guide judges in exercising their discretion to submit a copy of written instructions to a jury under
R. 1:8-8(a). Specifically, the Court said
The purpose underlying Rule 1:8-8 is to authorize the judge to
provide the jury with written instructions where it would be helpful.
Deciding what to do requires an exercise of discretion based on the
particular facts of the case. That does not include the adoption of a
blanket rule regarding the provision of written instructions that the judge
applies in every case. Thus, at trial, a judge should make an
individualized decision regarding the submission of written instructions to
the jury on the basis of what is before him and not on any preconceived
policy rationale.
Because the rule is silent regarding the kinds of considerations that
should inform such a determination, we refer the matter to the Civil and
Criminal Practice Committees for consideration of a more detailed
standard to guide judges in exercising their discretion. By way of
example, but not limitation, the committees should consider whether, if
there is a request, there should be a presumption that instructions that are
immediately available will be provided; whether there should be a
contrary presumption that instructions that are not immediately available
will not be provided; whether a definition of “immediately available”
should be adopted; and what kinds of considerations regarding the nature
of the case should factor into the judge’s Rule 1:8-8 calculus.
Slip Opinion at 40 and 41.
This matter will be considered by the Committee at the first meeting of the next rules
cycle.
— 9 —
C. Proposed Amendments to R. 1:21-7 — Contingent Fees
In the course of discussing a proposed amendment to R. 1:21-7, the Committee members
also questioned whether the recovery percentages should be raised or if there were some other
way to enhance recovery, e.g. by raising the caps on the recovery amounts. A subcommittee was
established to consider this issue. The recommendations of the subcommittee will be considered
by the Committee at its first meeting of the next rules cycle.
See Section I.A. of this Supplemental Report for an amendment to R. 1:21-7 that the
Committee recommends.
— 10 —
D. Proposed Amendments R. 4:4-7 — Return
The Committee agreed to propose an amendment to R. 4:4-7 to provide that where
service of process in the Law Division - Civil Part is made by registered or certified mail and
simultaneously by regular mail, the return receipt card or the printout of the electronic
confirmation of delivery by the U.S. Postal Service shall be filed as part of the proof of service.
The Conference of General Equity Presiding Judges suggested that the rule be further amended
to allow a photocopy of the return receipt card to be filed as part of the proof of service. The
judges would like to give the party the option of submitting a copy if, for whatever reason, the
original is misplaced. This issue will be presented to the Committee during the next rules cycle.
See Section I.A. of the 2010 Report of the Supreme Court Civil Practice Committee for
an amendment to R. 4:4-7 that the Committee recommends.
— 11 —
The Civil Practice Committee notes with deep sadness the passing of the Honorable
Sylvia B. Pressler, our longtime chair. We shall miss the intelligence, efficiency and wit with
which she presided over our meetings, as well as her unparalleled knowledge of the rules and her
sensitive insights into the policies behind them. We send our deepest sympathy and condolences
to her family.
Respectfully submitted,
Hon. Sylvia B. Pressler (Ret.), Chair
Hon. Stephen Skillman, P.J.A.D., Vice-Chair
Hon. Allison E. Accurso, P.J.Cv.
Dean John S. Beckerman
Hon. Eugene J. Codey, Jr., P.J.Cv.
Risa M. David, Esq.
Dawn M. DuVerney, Esq.
Hon. Faustino J. Fernandez-Vina, P.J.Cv.
Stacy A. Fols, Esq.
Amos Gern, Esq.
William S. Greenberg, Esq.
Robert B. Hille, Esq.
Craig S. Hilliard, Esq.
Kenneth S. Javerbaum, Esq.
Hon. John C. Kennedy, J.S.C.
Linda Lashbrook, Esq.
Gary J. Lesneski, Esq.
Howard J. McCoach, Esq.
Hon. Anne McDonnell, P.J.Cv.
Melville D. Miller, Esq.
Hon. Elijah L. Miller, Jr., P.J.Cv.
Vincent J. Nolan, III, Esq.
Hon. Thomas P. Olivieri, P.J.Ch.
John R. Parker, Esq.
Hon. Edith K. Payne, J.A.D.
Gary Potters, Esq.
Arthur J. Raimon, Esq.
Dean Andrew J. Rothman
James A. Schragger, Esq.
Willard C. Shih, Esq.
Jonathan D. Weiner, Esq.
Jane F. Castner, Esq., AOC Staff
Mary F. Rubinstein, Esq., AOC Staff
Dated: March 1, 2010
LMJG
S:\CPC-RPT-2010\Supplemental-Report-2010.doc
of the Supreme Court
Civil Practice Committee
March 1, 2010
TABLE OF CONTENTS
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION................................. 1
A. PROPOSED AMENDMENTS TO R. 1:21-7 — CONTINGENT FEES ............................................ 1
B. PROPOSED AMENDMENTS TO R. 4:64-9 — MOTIONS IN UNCONTESTED MATTERS .............. 4
II. MATTERS HELD FOR CONSIDERATION................................................................ 7
A. PROPOSED AMENDMENTS TO R. 1:5-6 — FILING ................................................................. 7
B. PROPOSED AMENDMENTS TO R. 1:8-8 — MATERIALS TO BE SUBMITTED TO THE JURY;
NOTE-TAKING; JUROR QUESTIONS....................................................................................... 8
C. PROPOSED AMENDMENTS TO R. 1:21-7 — CONTINGENT FEES ............................................ 9
D. PROPOSED AMENDMENTS R. 4:4-7 — RETURN.................................................................. 10
— 1 —
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendments to R. 1:21-7 — Contingent Fees
Rule 1:21-7(c) sets the percentages of contingent fee recovery. Subsection (c)(6) states
that where the amount recovered is for the benefit of a minor or incapacitated individual, the
amount is limited to 25% if the fee is recovered by settlement without trial. A Committee
member requested that the Committee clarify what is meant by the phrase “recovered by
settlement without trial….” In the absence of a definition of the phrase, attorneys may be
tempted to pursue trial to a point where the greater fee would be permitted. It was proposed that
clarification of the phrase would avoid inconsistent rulings by trial judges, unintentional but
potentially unethical behavior by counsel, and the needless risk to a client as a result of the
establishment arbitrary stages in a proceeding that trigger a higher fee. The Committee agreed
that the rule should be amended to clarify that the 25% rate would apply to any settlement that
occurred prior to the close of evidence. At the conclusion of the trial, the attorney will have the
right to apply for an enhancement, under subsection (f) of the rule, and the enhancement would
be limited to the standard rate of recovery, that is 33⅓%. Such clarification will foster
uniformity in the application of the rule and will also encourage settlement at earlier stages of the
proceeding.
See Section II.C. of this Report for proposed amendments to R. 1:21-7 that are being held
for consideration.
The proposed amendments to R. 1:21-7 follow.
— 2 —
1:21-7. Contingent Fees
(a) …no change.
(b) …no change.
(c) In any matter where a client's claim for damages is based upon the alleged
tortious conduct of another, including products liability claims and claims among family
members that are subject to Part V of these Rules but excluding statutorily based discrimination
and employment claims, and the client is not a subrogee, an attorney shall not contract for,
charge, or collect a contingent fee in excess of the following limits:
(1) 33⅓% on the first $500,000 recovered;
(2) 30% on the next $500,000 recovered;
(3) 25% on the next $500,000 recovered;
(4) 20% on the next $500,000 recovered; and
(5) on all amounts recovered in excess of the above by application for reasonable fee
in accordance with the provisions of paragraph (f) hereof; and
(6) where the amount recovered is for the benefit of a client who was a minor or
mentally incapacitated when the contingent fee arrangement was made, the foregoing limits shall
apply, except that the fee on any amount recovered by settlement prior to the close of evidence at
[without] trial shall not exceed 25%, provided that the fee may be enhanced pursuant to
paragraph (f) of this rule subject, however, to the maximum fee allowed by paragraph (c) of this
rule.
(d) …no change.
(e) …no change.
(f) …no change.
— 3 —
(g) …no change.
(h) …no change.
(i) …no change.
Note: Source — R. 1:21-6(f), as adopted July 7, 1971 to be effective September 13,
1971 and deleted December 21, 1971 to be effective January 31, 1972. Adopted December 21,
1971 to be effective January 31, 1972. Amended June 29, 1973 to be effective September 10,
1973. Paragraphs (c) and (e) amended October 13, 1976, effective as to contingent fee
arrangements entered into on November 1, 1976 and thereafteR. Closing statements on all
contingent fee arrangements filed as previously required between January 31, 1972 and January
31, 1973 shall be filed with the Administrative Office of the Courts whenever the case is closed;
paragraph (c) amended July 29, 1977 to be effective September 6, 1977; paragraph (d) amended
July 24, 1978 to be effective September 11, 1978; paragraph (c) amended and new paragraphs
(h) and (i) adopted January 16, 1984, to be effective immediately; paragraph (d) amended July
26, 1984 to be effective September 10, 1984; paragraph (e) amended June 29, 1990 to be
effective September 4, 1990; paragraphs (b) and (c)(5) amended July 13, 1994 to be effective
September 1, 1994; paragraph (c) amended June 28, 1996 to be effective September 1, 1996;
paragraph (c) amended January 21, 1999 to be effective April 5, 1999; paragraphs (g) and (h)
amended July 5, 2000 to be effective September 5, 2000; paragraph (c) amended July 12, 2002 to
be effective September 3, 2002; paragraphs (d) and (f) amended July 9, 2008 to be effective
September 1, 2008; paragraph (c)(6) amended to be effective .
— 4 —
B. Proposed Amendments to R. 4:64-9 — Motions in Uncontested Matters
To encourage the filing of responsive and specific objections to motions in foreclosure
matters, the Office of Foreclosure recommended the addition of language to R. 4:64-9 to clarify
that, for motions to be heard by a judge, the objections must address the subject of the motion
and state the basis of the objection with specificity. The Committee supported the Office of
Foreclosure’s recommendation. Legal Services expressed concern that litigants’ responses to
motions using less than precise legal terminology will not be heard by a judge. It was explained
that the amendment was proposed to encourage more specific responses and to avoid the
necessity of sending motions to judges where the objection presented is unexplained or unrelated
to the subject of the motion. It is intended that any objection, if it is related to the subject of the
motion, will be forwarded to a judge regardless of any drafting irregularities.
The proposed amendments to R. 4:64-9 follow.
— 5 —
4:64-9. Motions in Uncontested Matters
A notice of motion filed with the Office of Foreclosure shall not state a time and place for
its resolution. The notice of motion shall state the address of the Office of Foreclosure and that
the order sought will be entered in the discretion of the court unless the attorney or pro se party
on whom it has been served notifies in writing the Office of Foreclosure and the attorney for the
moving party or the pro se party within ten days after the date of service of the motion that the
responding party objects to the entry of the order. On receipt of a[n] specific objection or at the
direction of the court, the Office of Foreclosure shall deliver the foreclosure case file to the judge
in the county of venue, who shall schedule such further proceedings and notify the parties or
their attorneys of the time and place thereof.
Every notice of motion in a foreclosure action shall include the following language:
“IF YOU WANT TO OBJECT TO THIS MOTION YOU MUST DO SO IN WRITING
WITHIN 10 DAYS AFTER THE DAY YOU RECEIVED THIS MOTION. ANY OBJECTION
MUST ADDRESS THE SUBJECT OF THE MOTION AND DETAIL WITH SPECIFICITY
THE BASIS OF THE OBJECTION. YOU MUST FILE YOUR OBJECTION WITH THE
OFFICE OF FORECLOSURE, P.O. BOX 971, 25 MARKET STREET, TRENTON, NEW
JERSEY 08625, AND SERVE A COPY ON THE MOVING PARTY. THE OFFICE OF
FORECLOSURE DOES NOT CONDUCT HEARINGS. YOUR PERSONAL APPEARANCE
AT THE OFFICE WILL NOT QUALIFY AS AN OBJECTION. IF YOU FILE A[N]
SPECIFIC OBJECTION, THE CASE WILL BE SENT TO A JUDGE FOR RESOLUTION.
YOU WILL BE INFORMED BY THE JUDGE OF THE TIME AND PLACE OF THE
HEARING ON THE MOTION.”
— 6 —
Note: Adopted July 9, 2008 to be effective September 1, 2008; amended
to be effective .
— 7 —
II. MATTERS HELD FOR CONSIDERATION
A. Proposed Amendments to R. 1:5-6 — Filing
The Conference of General Equity Presiding Judges recommended a change to
R. 1:5-6(c)(2). Pursuant to the rule as currently constituted, answers submitted for filing by
defendants against whom default has been entered in mortgage or tax foreclosure actions are
exempt from being stamped “received but not filed” and returned to the filer. The Conference
recommended that the exemption be removed, thus requiring answers presented by defendants in
default in foreclosure cases to be treated as in other cases where a party is in default, i.e.,
returned marked “received but not filed” with notice that the defendant may move to vacate the
default. This proposal was not discussed by the Committee and so will be carried over to the
next rules cycle.
— 8 —
B. Proposed Amendments to R. 1:8-8 — Materials to be Submitted to the Jury;
Note-taking; Juror Questions
The Supreme Court in State v. O’Brien, 199 N.J. 127 (2009) asked both the Civil and
Criminal Practice Committees to consider whether there should be a more detailed standard to
guide judges in exercising their discretion to submit a copy of written instructions to a jury under
R. 1:8-8(a). Specifically, the Court said
The purpose underlying Rule 1:8-8 is to authorize the judge to
provide the jury with written instructions where it would be helpful.
Deciding what to do requires an exercise of discretion based on the
particular facts of the case. That does not include the adoption of a
blanket rule regarding the provision of written instructions that the judge
applies in every case. Thus, at trial, a judge should make an
individualized decision regarding the submission of written instructions to
the jury on the basis of what is before him and not on any preconceived
policy rationale.
Because the rule is silent regarding the kinds of considerations that
should inform such a determination, we refer the matter to the Civil and
Criminal Practice Committees for consideration of a more detailed
standard to guide judges in exercising their discretion. By way of
example, but not limitation, the committees should consider whether, if
there is a request, there should be a presumption that instructions that are
immediately available will be provided; whether there should be a
contrary presumption that instructions that are not immediately available
will not be provided; whether a definition of “immediately available”
should be adopted; and what kinds of considerations regarding the nature
of the case should factor into the judge’s Rule 1:8-8 calculus.
Slip Opinion at 40 and 41.
This matter will be considered by the Committee at the first meeting of the next rules
cycle.
— 9 —
C. Proposed Amendments to R. 1:21-7 — Contingent Fees
In the course of discussing a proposed amendment to R. 1:21-7, the Committee members
also questioned whether the recovery percentages should be raised or if there were some other
way to enhance recovery, e.g. by raising the caps on the recovery amounts. A subcommittee was
established to consider this issue. The recommendations of the subcommittee will be considered
by the Committee at its first meeting of the next rules cycle.
See Section I.A. of this Supplemental Report for an amendment to R. 1:21-7 that the
Committee recommends.
— 10 —
D. Proposed Amendments R. 4:4-7 — Return
The Committee agreed to propose an amendment to R. 4:4-7 to provide that where
service of process in the Law Division - Civil Part is made by registered or certified mail and
simultaneously by regular mail, the return receipt card or the printout of the electronic
confirmation of delivery by the U.S. Postal Service shall be filed as part of the proof of service.
The Conference of General Equity Presiding Judges suggested that the rule be further amended
to allow a photocopy of the return receipt card to be filed as part of the proof of service. The
judges would like to give the party the option of submitting a copy if, for whatever reason, the
original is misplaced. This issue will be presented to the Committee during the next rules cycle.
See Section I.A. of the 2010 Report of the Supreme Court Civil Practice Committee for
an amendment to R. 4:4-7 that the Committee recommends.
— 11 —
The Civil Practice Committee notes with deep sadness the passing of the Honorable
Sylvia B. Pressler, our longtime chair. We shall miss the intelligence, efficiency and wit with
which she presided over our meetings, as well as her unparalleled knowledge of the rules and her
sensitive insights into the policies behind them. We send our deepest sympathy and condolences
to her family.
Respectfully submitted,
Hon. Sylvia B. Pressler (Ret.), Chair
Hon. Stephen Skillman, P.J.A.D., Vice-Chair
Hon. Allison E. Accurso, P.J.Cv.
Dean John S. Beckerman
Hon. Eugene J. Codey, Jr., P.J.Cv.
Risa M. David, Esq.
Dawn M. DuVerney, Esq.
Hon. Faustino J. Fernandez-Vina, P.J.Cv.
Stacy A. Fols, Esq.
Amos Gern, Esq.
William S. Greenberg, Esq.
Robert B. Hille, Esq.
Craig S. Hilliard, Esq.
Kenneth S. Javerbaum, Esq.
Hon. John C. Kennedy, J.S.C.
Linda Lashbrook, Esq.
Gary J. Lesneski, Esq.
Howard J. McCoach, Esq.
Hon. Anne McDonnell, P.J.Cv.
Melville D. Miller, Esq.
Hon. Elijah L. Miller, Jr., P.J.Cv.
Vincent J. Nolan, III, Esq.
Hon. Thomas P. Olivieri, P.J.Ch.
John R. Parker, Esq.
Hon. Edith K. Payne, J.A.D.
Gary Potters, Esq.
Arthur J. Raimon, Esq.
Dean Andrew J. Rothman
James A. Schragger, Esq.
Willard C. Shih, Esq.
Jonathan D. Weiner, Esq.
Jane F. Castner, Esq., AOC Staff
Mary F. Rubinstein, Esq., AOC Staff
Dated: March 1, 2010
LMJG
S:\CPC-RPT-2010\Supplemental-Report-2010.doc
Tuesday, March 16, 2010
2010 REPORT OF THE SUPREME COURT COMMITTEE ON SPECIAL CIVIL PART PRACTICE
2010 REPORT
OF THE SUPREME COURT COMMITTEE
ON SPECIAL CIVIL PART PRACTICE
JANUARY 21, 2010
i
TABLE OF CONTENTS
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION .......................1
A. Proposed Amendment to R. 6:2-3(b) – Service of Original Process
in Tenancy Actions ........................................................................................1
B. Proposed Amendment to Appendix XI-B – Return of Service on
Tenancy Summons ........................................................................................4
C. Proposed Amendments to R. 6:7-1 – Protection of Exempt Funds
From Levy......................................................................................................7
D. Proposed Amendments to Appendix XI-H to Protect Exempt
Funds From Levy – Execution Against Goods and Chattels ..................11
E. Proposed Amendment to R. 6:7-1(b) – Filing Notice to Debtor
With the Clerk .............................................................................................13
II. RULE AMENDMENTS CONSIDERED AND REJECTED............................16
A. Proposed Amendment to R. 6:1-2 – Monetary Limits Increase .............16
B. Proposed Amendment to Appendix XI-X – Verified Tenancy
Complaint.....................................................................................................19
C. Proposed Amendments to Appendix XI-J – Wage Execution ................20
D. Proposed Amendment to R. 6:6-6 - Provision of Notice to
Judgment Creditors of Applications for Post-Judgment Relief
From Levies..................................................................................................21
E. Proposed Amendment to R. 6:7-2(a) – Elimination of
Requirement to Show Good Cause for Issuance of Order to Take
Post Judgment Discovery............................................................................22
F. Proposed Amendments to Rule 6:7-2 and Appendices XI-M and
XI-O - “Shall” vs. “May”...........................................................................23
ii
III. OTHER RECOMMENDATIONS - NONE........................................................26
IV. LEGISLATION - NONE ......................................................................................27
V. MATTERS HELD FOR CONSIDERATION ....................................................28
A. Use of Credit Cards to Pay Fees and Post Deposits .................................28
B. “Shotgun” Bank Levies...............................................................................29
C. Proposed Amendment to R. 6:7-2(b)(2) - Eliminate Requirement
of Serving Defendant With Information Subpoena Before Serving
Banks ............................................................................................................30
VI. CONCLUSION......................................................................................................31
APPENDIX – Excerpts From 1992 Report of the Special Civil Part Practice
Committee to the Supreme Court (Pages 51-59 and 101-122)…………………... 32
1
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendment to R. 6:2-3(b) – Service of Original Process in Tenancy
Actions
During the 2006-2008 Committee term a member had proposed to amend R. 6:2-3(b) so
as to resolve a perceived discrepancy between the statute and the rule regarding service in
tenancy actions. N.J.S.A. 2A:18-54 provides for service of the summons and complaint by
posting in those situations where admission to the subject premises is refused or no person above
the age of 14 is present. Rule 6:2-3(b), on the other hand, requires service by mail and by either
personal delivery or posting. In other words, there is no requirement in the rule that the Special
Civil Part Officer first attempt personal service before posting. The Committee decided, by a
vote of 16-4, to recommend amending the rule so as to require personal service, but permit
attachment to the door of the defendant’s unit if the Officer is unable to personally deliver it to
the defendant or a member of the defendant’s household over the age of 14 years. Note that, if
adopted, this rule change will require a modification of the Officer’s return of service on the
summons and this is addressed in the next section of the Report. The text of the proposed
amendment to the rule follows.
2
6:2-3. Service of Process
(a) By Whom Served. ... no change.
(b) Manner of Service. Service of process within this State shall be made in accordance
with R. 6:2-3(d) or as otherwise provided by court order consistent with due process of law, or in
accordance with R. 4:4-5. Substituted service within this State shall be made pursuant to R. 6:2-
3(d). Substituted or constructive service outside this State may be made pursuant to the
applicable provisions in R. 4:4-4 or R. 4:4-5.
In summary actions for the recovery of premises [landlord and tenant actions], service of
process shall be by ordinary mail and by [either] delivery personally pursuant to R. 4:4-4. When
the person serving process is unable to effectuate service by delivering process personally,
service may be effectuated [or] by affixing a copy of the summons and complaint on the door of
the unit occupied by the defendant [subject premises]. When the plaintiff-landlord has reason to
believe that service may not be made at the subject premises, the landlord shall also request
service at an address, by certified and regular mail addressed to the tenant, where the landlord
believes that service will be effectuated. The landlord shall furnish to the clerk two additional
copies of the summons and complaint for each defendant for this purpose.
(c) Notice of Service. ... no change.
(d) Service by Mail Program. ... no change.
(e) General Appearance; Acknowledgement of Service. ... no change.
Note: Source--R.R. 7:4-6(a)(b) (first three sentences), 7:4-7. Paragraph (a) amended July 7,
1971 effective September 13, 1971; paragraph (a) amended July 14, 1972 to be effective
September 5, 1972; paragraph (b) amended November 27, 1974 to be effective April 1, 1975;
paragraphs (a)(b) amended July 17, 1975 to be effective September 8, 1975; paragraph (a)
amended July 16, 1979 to be effective September 10, 1979; paragraph (a) amended July 21, 1980
to be effective September 8, 1980; paragraph (b) amended July 16, 1981 to be effective
September 14, 1981; paragraphs (a) and (b) amended and paragraph (d) adopted November 5,
3
1986 to be effective January 1, 1987; paragraph (c) amended November 7, 1988 to be effective
January 2, 1989; paragraphs (b) and (d) amended June 29, 1990 to be effective September 4,
1990; paragraph (d) amended July 17, 1991 to be effective immediately; paragraph (e) adopted
July 14, 1992 to be effective September 1, 1992; paragraphs (a) and (e) amended July 13, 1994
to be effective September 1, 1994; paragraph (d)(4) amended July 5, 2000 to be effective
September 5, 2000; paragraphs (a), (b), (d), (d)(2), and (e) amended July 12, 2002 to be effective
September 3, 2002; paragraphs (b), d(4) and (5) amended July 28, 2004 to be effective
September 1, 2004; paragraph (b) amended__________, 2010 to be effective___________,2010.
4
B. Proposed Amendment to Appendix XI-B – Return of Service on Tenancy
Summons
Having agreed to recommend amending R. 6:2-1, as described above in Section I.A. of
this Report, the Committee turned its attention to the Special Civil Part Officer’s return of
service on the summons, which is a mandated form set forth in Appendix XI-B to the court rules.
Members of the Committee debated the degree of detail that should be required if the officer is
unsuccessful in making personal service. Concerns ranged from fear of imposing unreasonable
requirements on the officers when they are unable to gain access to the door of the tenant’s unit
in a large apartment building, on the one hand, to a need for specifics when service of process is
challenged by the defendant, on the other. Included was the thought that the court officers
should have a clear understanding of what is expected of them by the court. Ultimately, the
Committee decided (by a vote of 9 in favor and 7 opposed) to recommend amending the return
of service on the summons by adding a line for the court officer to describe the efforts made to
personally serve the defendant, if that effort was unsuccessful, and to retain the current line for
the officer to describe the premises when the summons has been posted. It will be up to the
judge to determine the adequacy of service if that issue is raised in the litigation. The proposed
amendments to Appendix XI-B follow.
5
APPENDIX XI-B. TENANCY SUMMONS
AND RETURN OF SERVICE (R. 6:2-1)
Plaintiff or Plaintiff’s Attorney Information: Superior Court of New Jersey
Name: _____________________________ Law Division, Special Civil Part
Address: ___________________________ __________________ County
___________________________________ ___________________________
Phone: (___)_________________________ ___________________________
(____)______________________
______________________________, Plaintiff(s) Docket Number: LT - _____________
(to be provided by the court)
versus
Civil Action
______________________________, Defendant(s) SUMMONS
LANDLORD/TENANT
Defendant Information:
Name: __________________________ ___Nonpayment
Address: _________________________ ___Other
_________________________________
Phone:(___)_______________________
NOTICE TO TENANT: The purpose of the attached complaint is to permanently remove you and your
belongings from the premises. If you want the court to hear your side of the case you must appear in
court on this date and time: _____________ at ________ a.m./p.m., or the court may rule against you.
REPORT TO: ___________________________________
If you cannot afford to pay for a lawyer, free legal advice may be available by contacting Legal Services at
________________. If you can afford to pay a lawyer but do not know one, you may call the Lawyer Referral
Services of your local county Bar Association at _______________.
You may be eligible for housing assistance. To determine your eligibility, you must immediately contact the
welfare agency in your county at __________________, telephone number ____________________.
If you need an interpreter or an accommodation for a disability, you must notify the court immediately.
Si Ud. no tiene dinero para pagar a un abogado, es posible que pueda recibir consejos legales gratuitos si se
comunica con Servicios Legales (Legal Services) al ____________. Si tiene dinero para pagar a un abogado
pero no conoce ninguno puede llamar a Servicios de Recomendación de Abogados (Lawyer Referral Services)
del Colegio de Abogados (Bar Association) de su condado local al_________________.
Es posible que pueda recibir asistencia con la vivienda si se comunica con la agencia de asistencia publica
(welfare agency) de su condado al _____________________________________, telefono ___________.
Si necesita un interprete o alguna acomodación para un impedimento fisico, tiene que notificárselo
inmediatamente al tribunal.
Date: ___________________ _________________________________________
Clerk of the Special Civil Part
6
COURT OFFICER’S RETURN OF SERVICE (FOR COURT USE ONLY)
Docket Number: ________________________Date: __________________Time: ______________
WM ___ WF ___ BM ___ BF OTHER _____ HT ____ WT _____ AGE ___ MUSTACHE ___ BEARD ___ GLASSES___ NAME:
____________________________RELATIONSHIP: __________
Efforts Made to Personally Serve __________________________________________________________________________
_____________________________________________________________________________________________________
Description of Premises if Posted __________________________________________________________________________
_____________________________________________________________________________________________________
I hereby certify the above to be true and accurate: _________________________________________________________
Special Civil Part Officer
[Note: Former Appendix XI-B, consisting of model tenancy complaint and summons forms, deleted, and new tenancy
summons and return of service form adopted July 12, 2002 to be effective September 3, 2002; amended July 27, 2006 to be
effective September 1, 2006: amended_____________, 2010 to be effective___________, 2010.]
7
C. Proposed Amendments to R. 6:7-1 – Protection of Exempt Funds From Levy
The Committee stated in its 2008 report to the Supreme Court that it was holding for
further consideration the idea of going beyond the provision of a speedy remedy when bank
accounts are levied upon that contain funds that are exempt from levy under federal or state law
to find a mechanism that can prevent it from happening in the first place. The funds in question
come from a variety of sources, such as Social Security, S.S.I., V.A., unemployment, workers’
compensation, welfare and child support payments. The Committee noted that in 2006 the
Supreme Court accepted the its recommendation to provide a speedy mechanism in the court
rules for recipients of exempt funds to seek their release from levy (see, R. 6:6-6(a)), but
concluded that more should be done to prevent such levies in the first place because it is often
difficult to undo the damage they cause to those members of society least able to afford it. These
consequences include bank fees for checks that have bounced, bank fees for freezing the debtor’s
account pursuant to the levy, evictions for nonpayment of rent and deprivation of life’s
necessities.
The Committee was well aware of the danger of intruding on the legislative realm if it
sought to create new substantive rights, but it became clear that the rights in question had already
been defined in both federal and state legislation and the question is one of how best to
implement those legislative determinations in the judicial context. The mechanism
recommended by the Committee consists of limiting the scope of any levy on bank accounts so
that it conforms to established law and so that it can be easily implemented by the third-party
garnishee banks. The Committee was informed that several large banks are already doing this
voluntarily and that other jurisdictions have pursued similar efforts along these lines.
8
The easiest scenario to address is one in which the deposits into a judgment-debtor’s
account have been made electronically on a recurring basis and have come exclusively from an
exempt source. This is not difficult for banks to discern from their electronic records. Some
accounts, however, have been in existence for many years and it could be difficult to determine
which funds are exempt when they have been commingled with non-exempt funds if the bank
has to look at the entire deposit history of an account. As a practical matter the Committee
concluded, as most judges have when called upon to rule in these matters, that if nothing but
exempt funds have been electronically deposited into an account for 90 days, the account almost
certainly consists exclusively of those exempt funds and the entire amount should be protected
from levy. It is also the period of time that is of most interest to judgment-creditors, as reflected
in Question #11 in the mandatory form for the Information Subpoena contained in Appendix XIL
to the court rules. Question #11 asks the judgment-debtor for copies of the three most recent
bank statements for any accounts containing funds from seven exempt sources.
With regard to situations where funds from exempt and non-exempt sources have been
commingled within the 90 days preceding the levy, the Committee concluded that funds
deposited electronically on a recurring basis by exempt sources within the last 45 days should be
presumed by the garnishee bank to be exempt from levy. Again, this should be easily
discernable by the bank from its electronic records.
These recommendations have been incorporated into proposed amendments to R. 6:7-1,
as set forth infra. They will comprise a new paragraph (b), divided into two parts that address
the situations described above. The implementation of the rule amendments would be
accomplished by corresponding modifications to the form of the writ of execution against goods
and chattels contained in Appendix XI-H to the rules (see Section I.D. of this Report, below).
9
Note that the addition of a new paragraph (b) will require the redesignation of the current (b), (c),
and (d) as paragraphs (c), (d) and (e), respectively.
It should be noted that the Committee was divided on the question of whether to include
the statutory $1,000 exemption (regardless of source) in the rule amendments. Some members
felt that doing so would effectively preclude the judgment-debtor from choosing to exempt
$1,000 worth of tangible property or cash from levy rather than the $1,000 in the bank account
when the debtor might prefer to use the money in the account to pay the judgment. Others
thought that funds necessary to meet immediate basic needs (an amount at least equal to the
$1000 general exemption) can and must be protected from judicial restraint in all consumers’
bank accounts in order to achieve a minimum level of basic fairness --- and protection from
extreme hardship --- for low-income New Jerseyans. Ultimately the Committee decided to leave
to the debtor the choice of which funds to protect by using the statutory $1,000 exemption and
focus instead on protecting the funds that are exempt by statute in their entirety. The proposed
amendments follow.
10
6:7-1. Requests for Issuance of Writs of Execution; Contents of Writs of Execution and Other
Process for the Enforcement of Judgments; Notice to Debtor; Claim for Exemption;
Warrant of Removal; Enforcement of Consent Judgments and Stipulations of Settlement
in Tenancy Actions
(a) Requests for Issuance; Intention to Return. ... no change.
(b) Contents of Writs of Execution and Other Process for the Enforcement of
Judgments. All writs of execution and other process for the enforcement of judgments shall
provide that any levy pursuant thereto shall exclude:
(1) all funds in an account of the debtor with a bank or other financial institution, if all
deposits into the account during the 90 days immediately prior to service of the writ were
electronic deposits, made on a recurring basis, of funds identifiable by the bank or other financial
institution as exempt from execution, levy or attachment under New Jersey or federal law, and
(2) all funds deposited electronically in an account of the debtor with a bank or other
financial institution during the 45 days immediately prior to service of the writ that are
identifiable by the bank or other financial institution as exempt from execution, levy or
attachment under New Jersey or federal law.
(c) [ (b) ] Notice to Debtor. ... no change to text.
(d) [ (c) ] Warrant of Removal; Issuance, Execution. ... no change to text.
(e) [ (d) ] Enforcement of Consent Judgments and Stipulations of Settlement in Tenancy
Actions. ... no change to text.
Note: Source – R.R. 7:11 1; former rule redesignated as paragraph (a) and paragraph (b) adopted and caption
amended July 16, 1981 to be effective September 14, 1981; paragraph (b) amended November 1, 1985 to be
effective January 2, 1986; caption amended and paragraph (c) adopted November 7, 1988 to be effective January 2,
1989; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; caption and paragraph (c),
caption and text, amended July 13, 1994 to be effective September 1, 1994; paragraph (a) caption and text amended
June 28, 1996 to be effective September 1, 1996; caption amended and paragraph (d) adopted July 18, 2001 to be
effective November 1, 2001; paragraph (c) amended September 14, 2004 to be effective immediately; paragraph (a)
amended July 27, 2006 to be effective September 1, 2006; paragraph (b) adopted and former paragraphs (b), (c), and
(d) redesignated as (c), (d), and (e) respectively ______________, 2010 to be effective____________, 2010.
11
D. Proposed Amendments to Appendix XI-H to Protect Exempt Funds From
Levy – Execution Against Goods and Chattels
To effectuate the protection of exempt funds from levy as set forth in the proposed
amendments to R. 6:7-1 in Section I.C. of this Report, above, the Committee recommends that
the form for the writ of execution against goods and chattels set forth in Appendix XI-H to the
court rules be amended accordingly. All the writs issued by the Special Civil Part statewide will
contain these provisions since the form is generated by the Automated Case Management System
(ACMS). It is important for the garnishee bank to know that the levy pursuant to the writ should
not include those funds in the judgment-debtor’s account that the bank can identify as being
exempt under federal or state law and so the amended form of the writ would be explicit in this
regard. As noted in the previous section of this Report, several banks are already doing this
voluntarily, utilizing their electronic record keeping capability to identify the exempt funds. The
proposed amendments to Appendix XI-H follow.
12
APPENDIX XI-H EXECUTION AGAINST GOODS AND CHATTELS
DOCKET NO.: ___ DC-______-__ SUPERIOR COURT OF NEW JERSEY
JUDGMENT NO.: ___ VJ-_______-__ SPECIAL CIVIL PART
WRIT NUMBER: ____ _______________ COUNTY
STATE OF NEW JERSEY
EXECUTION AGAINST GOODS AND CHATTELS
PLAINTIFF(S)
VS.
DEBTORS: __________________________
DEFENDANT(S) __________________________
ADDRESS OF FIRST DEBTOR:
STREET ADDRESS
CITY NJ ZIP
TO: ___________________________________________
COURT OFFICER OF THE SPECIAL CIVIL PART
YOU ARE ORDERED to levy on the property of any of the debtors designated herein; your actions may include,
but are not limited to, taking into possession any motor vehicle(s) owned by any of the debtors, taking possession of
any inventory and/or machinery, cash, bank accounts, jewelry, electronic devices, fur coats, musical instruments,
stock certificates, securities, notes, rents, accounts receivable, or any item(s) which may be sold pursuant to statute
to satisfy this execution in full or in part. Any levy pursuant to this writ shall exclude (1) all funds in an account of
the debtor with a bank or other financial institution, if all deposits into the account during the 90 days immediately
prior to service of the writ were electronic deposits, made on a recurring basis, of funds identifiable by the bank or
other financial institution as exempt from execution, levy or attachment under New Jersey or federal law, and (2) all
funds deposited electronically in an account of the debtor with a bank or other financial institution during the 45
days immediately prior to service of the writ that are identifiable by the bank or other financial institution as exempt
from execution, levy or attachment under New Jersey or federal law. All proceeds are to be paid to the court officer
who shall pay them to the creditor or the attorney for the creditor, or, if this is not possible, to the court. This order
for execution shall be valid for two years from this date.
Local police departments are authorized and requested to provide assistance, if needed, to the officer executing
this writ. This does not authorize entry to a residence by force unless specifically directed by court order.
Judgment Date _________ Date: ________________
Judgment Amount................................................. $________
Costs and Atty. Fees .............................................$________ _________________________________
Subsequent Costs ..................................................$________ Judge
Total......................................................................$________
Credits, if any .......................................................$________
Subtotal A.............................................................$________ _________________________________
Interest .................................................................. $________ Clerk of the Special Civil Part
Execution costs and mileage................................. $________
Subtotal B ............................................................. $________ I RETURN this execution to the Court
Court officer fee....................................................$________
Total due this date................................................. $________ ( ) Unsatisfied ___________________
Date: ________________.................................... ( ) Satisfied ( ) Partly Satisfied
Property to be Levied Amount Collected. . ____________
Upon and Location of Same:
Fee Deducted. . . . . . ____________
Amount Paid to Atty.____________
CITY ST ZIP
CREDITOR’S ATTORNEY AND ADDRESS: Date: ______________
______________________________________
______________________________________
______________________________________ ______________________________
CITY NJ ZIP Court Officer
Telephone: ___-__________
13
E. Proposed Amendment to R. 6:7-1(b) – Filing Notice to Debtor With the Clerk
Rule 4:59-1(g) requires a levying officer (Sheriff’s Officer for writs emanating from the
Civil Part of the Law Division; Special Civil Part Officer for writs issued by the Special Civil
Part of the Law Division) to mail copies of the Notice to Debtor (as set forth in Appendix VI to
the rules) to the judgment-debtor and judgment-creditor and to file a copy with the clerk. Rule
6:7-1(b) makes R. 4:59-1(g) applicable to actions in the Special Civil Part. The vast majority of
the 140,000 writs of execution against goods and chattels issued by the Special Civil Part each
year are used to levy against bank accounts owned by judgment-debtors and the clerks thus
receive two separate copies of the Notice to Debtor: the first one from the levying officer and
the second with the supporting papers submitted by the judgment-creditor when moving for a
turnover order. A member of the Committee explained, on behalf of the Civil Division
Managers and Assistant Managers, that the volume of these documents has become impossible to
keep up with and the Conference of Civil Division Managers thus recommended in its Report on
Workload Reduction Through Operational Efficiencies that the rule be amended to eliminate the
requirement that the officer file a copy when making a bank levy since the creditor is required to
submit a copy with the motion for a turnover order.
The provision in question was adopted by the Supreme Court in 1985 on the joint
recommendation of the Civil and Special Civil Part Practice Committees. The rationale for
requiring the Court Officer to file a copy of the Notice to Debtor with the clerk, however, was
not discussed in either committee's 1985 report to the Supreme Court.
This Committee decided to recommend an amendment to R. 6:7-1(b) that would require
filing of a copy of the Notice to Debtor by the Special Civil Part Officer only in cases involving
a levy on tangible physical property; a copy of the Notice would still be required with the
14
judgment-creditor’s motion for a turnover order in cases involving a bank levy. The purpose of
the amendment is to eliminate the duplicative filings in connection with executions on bank
accounts. The Committee proposes that R. 6:7-1(b) be amended, rather than R. 4:59-1(g),
because the number of bank levies is so much greater in the Special Civil Part and the
Committee is not aware of a comparable problem in Civil Part actions. The text of the proposed
rule amendment follows. Please note that paragraph (b) will become paragraph (c) if the
Supreme Court approves the amendment to the rule for the purpose of protecting exempt funds
from levy, as proposed in section I.C. of this Report, above.
15
6:7-1. Requests for Issuance of Writs of Execution; Notice to Debtor; Claim for Exemption;
Warrant of Removal; Enforcement of Consent Judgments and Stipulations of Settlement in
Tenancy Actions
(a) Requests for Issuance; Intention to Return. ... no change.
(b) Notice to Debtor. The provisions of R. 4:59-1(g) respecting notice to debtor,
exemption claims and deferment of turnover and sales of assets shall apply to all writs of
execution issued by the Law Division, Special Civil Part, except that a copy of the Notice to
Debtor shall not be filed by the levying officer with the clerk of the court after a levy on a bank
account. The notice to debtor shall be in the form prescribed by Appendix VI to these rules.
(c) Warrant of Removal; Issuance, Execution. ... no change.
(d) Enforcement of Consent Judgments and Stipulations of Settlement in Tenancy
Actions. ... no change.
Note: Source – R.R. 7:11 1; former rule redesignated as paragraph (a) and paragraph (b)
adopted and caption amended July 16, 1981 to be effective September 14, 1981; paragraph (b)
amended November 1, 1985 to be effective January 2, 1986; caption amended and paragraph (c)
adopted November 7, 1988 to be effective January 2, 1989; paragraphs (b) and (c) amended July
14, 1992 to be effective September 1, 1992; caption and paragraph (c), caption and text,
amended July 13, 1994 to be effective September 1, 1994; paragraph (a) caption and text
amended June 28, 1996 to be effective September 1, 1996; caption amended and paragraph (d)
adopted July 18, 2001 to be effective November 1, 2001; paragraph (c) amended September 14,
2004 to be effective immediately; paragraph (a) amended July 27, 2006 to be effective
September 1, 2006; paragraph (b) amended__________, 2010 to be effective________, 2010.
16
II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Proposed Amendment to R. 6:1-2 – Monetary Limits Increase
During the 2006-2008 term, the Committee discussed the possibility of raising the
monetary limits for small claims and regular Special Civil Part cases. At the request of the
Chair, staff had researched the effect of inflation on those limits and reported back to the
Committee. The results of that research are set forth below in an excerpt taken from the
Committee’s 2008 Report to the Supreme Court (pages 40-41). In 2008 the Committee
concluded that there should be no increase in the limits at that time because of the recent large
increases in the volume of collection cases and the fact that the current monetary limits were still
within the boundaries set in 1994 when adjusted for inflation.
Those two factors retain their validity today. In fact, contract filings increased from
Court Year 2007 to 2008 by an even greater margin than had been predicted in the Committee’s
2008 Report; the projection was for a 20% increase, from 299,438 to 361,647, while the actual
number of filings for 2008 turned out to be 383,154, which represents an increase of 28% over
2007. The number of contract filings in Court Year 2009 came to 378,068, which is 1% less
than 2008, but still a 26% increase over 2007. This indicates that the higher level of contract
filings will be sustained and was not a one-time phenomenon. After a lengthy discussion this
Committee decided, by a vote of 14-5, with one abstention, not to recommend any increase in the
current monetary limits. The excerpt from the Committee’s 2008 Report follows.
17
EXCERPT FROM 2008 REPORT OF THE SPECIAL CIVIL PART PRACTICE
COMMITTEE TO THE SUPREME COURT – PAGES 40-41
The Committee discussed the possibility of raising the monetary limits for small claims
and regular Special Civil Part cases. The Chair asked staff to research the effect of inflation on
those limits and report back to the Committee.
A history of the Special Civil Part monetary limits over the last quarter century shows the
following progression:
Year Regular SCP Limit Small Claims Limit
1981 $5,000.00 $1,000.00
1992 $7,500.00 $1,500.00
1994 $10,000.00 $2,000.00
2002 $15,000.00 $3,000.00
Note that the ratio of the two limits has always been maintained at 5 to 1.
Taking into account changes in the Consumer Price Index for Urban Wage Earners and
Clerical Workers, published by U.S. Department of Labor’s Bureau of Labor Statistics for New
York City and Northeastern New Jersey, the cost of living increased by 17.8% between
September 2002 (the last time the Special Civil Part monetary limits were raised) and September
2007. This would appear to justify an increase in the monetary limits from $15,000.00 to
$17,600.00 and from $3,000.00 to $3,534.00 for regular Special Civil Part cases and small
claims, respectively.
Taking a look at inflation from a longer perspective, however, raises the question of
whether such a change would be appropriate at this time. The value of the 1994 limits
($10,000.00 and $2,000.00) was $12, 030.00 and $2,406.00 in 2002, and those values projected
to September 2007 come out at $14,171.00 and $2874.00, respectively. This indicates that we
have not yet exceeded the 1994 limits when they are adjusted for inflation.
An examination of changes in the contracts caseload since 2002 suggests a need for
caution when considering another increase in the monetary limits. The chart below indicates that
the contracts caseload increased by 20% in Court year 2003, which is when the last monetary
limit increase took effect. Between Court Year 2003 and Court Year 2007 there was another
20% increase in the caseload, despite a 12% decline in 2005. For Court Year 2008 the AOC has
figures for the first 5 months and when they are projected for the entire year we can expect
another 20% increase in the contacts caseload. Note: When that 5 month period is compared to
the same period in Court Year 2006, we see an increase of almost 27%.
The most recent contract caseload increase may be due to the confluence of an economic
slowdown and changes in the bankruptcy laws that preclude discharge of the debts that now
appear in the contracts caseload. Whatever the cause, we know from past experience that an
increase in the Special Civil Part monetary limits results in a significant increase in the caseload.
18
This, coupled with the fact that we have not yet exceeded the 1994 monetary limits (when
adjusted for inflation) suggests that this would not be a good time to raise the monetary limits
again. Note that while the volume of tenancy actions and small claims has remained relatively
static over the years, these cases and the greatly increased number of contract cases are being
handled by 30% fewer staff than the Special Civil Part had in 1994. During the next Term, the
Committee plans to explore the possibility of raising the limits for collection actions and small
claims, neither of which involves the extent of discovery required for tort actions.
Court Year Contract Filings % Increase
2002 208,259 ---
2003 249,934 20%
2004 269,989 8%
2005 236,670 -12%
2006 270,692 14%
2007 299,438 11%
2008 361,647* 20%*
*Projections based on contract filings during the first 5 months of Court Year 2008
19
B. Proposed Amendment to Appendix XI-X – Verified Tenancy Complaint
The Committee considered correspondence between AOC Staff and an attorney regarding
the clarity (or asserted lack thereof) in paragraph 9A and a problem with paragraph 9B of the
Verified Complaint – Non payment of Rent form contained in Appendix XI-X to the Rules. It
was noted during the discussion of this item that the language of the Verified Complaint had
been crafted through a lengthy process of discussion that included this Committee, the
Committee of Special Civil Part Supervising Judges and the Special Civil Part Management
Committee. It was also noted that the request for more clarity was not specific as to what
changes should be made to achieve that goal. The Committee decided to take no further action
on the matter.
20
C. Proposed Amendments to Appendix XI-J – Wage Execution
The Committee considered correspondence between the Acting Administrative Director
of the Courts, and an attorney who proposed amending the model Wage Execution form, set
forth in Appendix XI-J to the Rules, to make clear that the judge has discretion to order that an
amount less than 10% be withheld from the judgment-debtor’s earnings. In his view, the current
form implies that the court has no discretion to order an amount less than 10% and he pointed out
that there is no such provision in N.J.S.A. 2A:17-56, the statute that authorizes wage withholding
to satisfy civil judgments. In discussing the question, the Committee had before it copies of the
Wage Execution form and the statute. Some members favored the proposal, while others
opposed it. Ultimately the Committee decided to recommend no further action, principally
because both the Notice of Application for Wage Execution and the Execution itself make clear
that the judgment-debtor has a continuing right to object to the execution and request a reduction,
even after the judge has signed the order. Moreover, there simply was no basis to conclude that
the judges who handle these matters are not familiar with the law that governs them.
21
D. Proposed Amendment to R. 6:6-6 - Provision of Notice to Judgment
Creditors of Applications for Post-Judgment Relief From Levies
A member of the Committee complained that judgment-creditors often do not get
adequate notice of applications for relief from levies to be able to appear and protect their
clients’ rights. The attorney suggested that there should be a requirement of 48 hours notice or
that a hearing be held on the judgment-debtor’s application at 3:00 p.m. on the date of
application. This would require an amendment to R. 6:6-6 which governs post-judgment
applications for relief in tenancy actions and to claims of exemption from levy in other Special
Civil Part actions. Because applications brought pursuant to the rule are emergent in nature, the
Committee felt that there should be no time barrier to immediate relief, assuming that the rights
of all parties to the litigation are protected, and decided to refer the matter to the Committee of
Special Civil Part Supervising Judges for further discussion.
22
E. Proposed Amendment to R. 6:7-2(a) – Elimination of Requirement to Show
Good Cause for Issuance of Order to Take Post Judgment Discovery
The Committee considered a request from a member of the Civil Practice Committee for
an amendment to R. 6:7-2(a) that would either remove any "good cause" requirement from the
rule or set forth in the rule that the existence of an unpaid judgment is sufficient "good cause" for
the court to order supplementary proceedings to discover assets that could be used to satisfy a
judgment. The Committee concluded that it is up to the judge to decide on a case by case basis
what set of circumstances constitute good cause to warrant entry of an order for supplementary
proceedings and thus rejected the proposed amendments.
23
F. Proposed Amendments to Rule 6:7-2 and Appendices XI-M and XI-O -
“Shall” vs. “May”
This Committee considered correspondence from one of its mambers and a member of
the Supreme Court Civil Practice Committee on behalf of the New Jersey Creditors Bar
Association, complaining that some judges routinely modify orders to enforce litigant’s rights by
changing the word “shall” to “may,” in reference to the issuance of a warrant for arrest if the
target of a post-judgment information subpoena fails to obey the court’s order. They pointed out
that R. 6:7-2(f) mandates the use of the form of order set forth in Appendix XI-O and that the
form uses the term “shall.” The end result, they said, is the development of local practices and
they proposed the addition of a paragraph (j) to the rule that would make the relaxation rule (R.
1:1-2) inapplicable to R. 6:7-2(d) through (i) and the forms set forth in Appendices XI-M
through XI-Q.
This Committee was advised that the Civil Practice Committee had tentatively approved
proposed amendments to Appendices XI-M (Notice of Motion for Order Enforcing Litigant’s
Rights) and XI-O (Order to Enforce Litigant’s Rights) that would change the word “shall” to
“may” in reference to whether a warrant will issue and attorney’s fees be awarded if the
respondent fails to comply with the order. The Civil Practice Committee was waiting for advice
from this Committee before deciding whether to recommend the changes to the Supreme Court.
This Committee had before it copies of the proposed amendments being considered by the Civil
Practice Committee.
During this Committee’s discussion it was pointed out that while the form of the order set
forth in Appendix XI-O uses the word “shall,” and while use of the form is mandatory under R.
6:7-2(f), there are occasions on which a judge would, in the exercise of his or her discretion,
substitute the word “may” for “shall” as, for example, when the target of the order is known to be
24
an 85-year old with a heart condition. It was thus clear that the rule should not be modified so as
to preclude the court’s ability to relax the rule pursuant to R. 1:1-2. On the other hand, it was
also apparent to the Committee that such a change to the form of the order in every case or on a
regular and routine basis would both (1) weaken the perception of the court’s determination to
compel answers to the questions in the information subpoena and (2) lead to inconsistent
practices from county to county. It should also be clear that the use of the word “shall” in the
prescribed form of the Notice of Motion for Order Enforcing Litigant’s Rights (Appendix XI-M)
simply tells the judgment-debtor what relief the creditor is seeking. The Order to Enforce
Litigant’s Rights (Appendix XI-O) tells the judgment-debtor what ultimately will happen if s/he
continues to defy the subpoena and the court’s order to comply with it. In no way does use of
the word “shall” in the two Appendices impair the discretion of the judge to refuse to sign the
arrest warrant when asked to do so.
One of the members of this Committee, who is a judge, stated that in the past he had
often substituted the word “may” for the imperative “shall,” but stopped the practice after
carefully re-reading the rule and the forms provided for its enforcement in the Appendices to the
Rules, the use of which is mandated by the Supreme Court. Considering the text of R. 6:7-2 and
the implementing Appendices in their entirety, he concluded that the protections built into the
mechanism for the judgment-debtor were so extensive that by the time the arrest warrant is
actually issued it is indeed the last resort to force compliance with the information subpoena and
the court’s order to enforce it. These protections include:
(1) A statement in the required form of the Information Subpoena itself (Appendix XI-L)
warning the judgment-debtor that failure to comply with it “may result in your arrest and
incarceration.”
(2) A requirement in R. 6:7-2(c) that the Information Subpoena be served personally or
simultaneously by regular and certified mail return-receipt-requested.
25
(3) Requirements in R. 6:7-2(e) that the notice of motion to enforce litigant’s rights (a) be in
the form set forth in Appendix XI-M, (b) warn the debtor that s/he may be arrested and held until
s/he has complied with the Information Subpoena, (c) state that a court appearance can be
avoided by compliance with the Information Subpoena and (d) be served either personally or
simultaneously by regular and certified mail return-receipt-requested.
(4) Requirements in R. 6:7-2(f) that the order to enforce litigant’s rights be in the form set
forth in Appendix XI-O, be served personally or simultaneously by regular and certified mail
return-receipt-requested and warn the debtor that upon failure to comply with the Information
Subpoena within 10 days, “the court will issue an arrest warrant.”
(5) Requirements in R. 6:7-2(g) that in order to get an arrest warrant the judgment-creditor
must certify that the debtor has not complied with the order to enforce litigant’s rights, that the
warrant be executed only between the hours of 7:30 a.m. and 3:00 p.m. on a day when court is in
session, that if the debtor was served with the notice of motion and order by mail the warrant
must be executed only at the address to which they were sent and that the debtor be brought
before a judge forthwith and released immediately upon completion of the Information
Subpoena.
For these reasons the Committee member who had originally suggested the modification
to circumscribe the court’s discretion moved to recommend that the rule and forms be left as they
are. The motion was seconded by a representative of Legal Services of New Jersey (LSNJ) and
the motion was adopted by a vote of 19 in favor and one abstention.
It should be noted that the reasoning of the Special Civil Part Practice Committee in
originally proposing this enforcement mechanism is explained in the Committee’s 1992 Report
to the Supreme Court at pages 51 – 59 and 101-122. An excerpt containing those pages is
attached as an appendix to this Report.
26
III. OTHER RECOMMENDATIONS - NONE
27
IV. LEGISLATION - NONE
28
V. MATTERS HELD FOR CONSIDERATION
A. Use of Credit Cards to Pay Fees and Post Deposits
The Committee endorses the idea of permitting the payment of filing fees and posting of
deposits by credit card but recognizes that formulation of the language for the rule change should
await completion of the AOC’s work on this project. Staff informed the Committee that the
Information Technology Office, Office of Management Services and the Civil Practice Division
of the Office of Trial Court Services are already deeply involved in this project.
29
B. “Shotgun” Bank Levies
The Committee discussed the practice of some Special Civil Part Officers using a
“shotgun” approach by serving copies of writs of execution on a number of banks, not knowing
whether the judgment-debtor in fact has an account at any of them. The Committee asked for
advice from the Conference of Civil Division Managers, the Special Civil Part Management
Committee (composed of the Assistant Civil Division Managers responsible for running the
clerks’ offices in the counties) and the Committee of Special Civil Part Supervising Judges as to
the extent of the practice and the problems, if any, that it raises. The Supervising Judges will
discuss the matter at their February meeting and this Committee will then transmit its
recommendations to the Supreme Court in the form of a supplemental report.
30
C. Proposed Amendment to R. 6:7-2(b)(2) - Eliminate Requirement of Serving
Defendant With Information Subpoena Before Serving Banks
A member of the Committee, has proposed an amendment to R. 6:7-2(b)(2) that would
eliminate the requirement, presently in the rule, of serving a judgment debtor with an information
subpoena and getting no response, before the judgment-creditor can serve an information
subpoena on a bank to find out if the debtor has an account there. The Committee will report on
this proposal in its supplemental report to the Supreme Court.
31
VI. CONCLUSION
The members of the Supreme Court Committee on Special Civil Part Practice appreciate
the opportunity to have served the Supreme Court in this capacity.
Respectfully submitted,
Hon. Joseph R. Rosa, J.S.C., Chair
Mary Braunschweiger, Civ. Div. Mgr.
Felipe Chavana, Esq.
I. Mark Cohen, Esq.
Gregory G. Diebold, Esq.
JoAnn Ezze, Asst. Civ. Div. Mgr.
Gerard J. Felt, Esq.
Eric H. Fields, Court Officer
Lloyd Garner, Esq., Asst. Civ. Div. Mgr.
Joanne Gottesman
Linda G. Hampton, Esq.
Hon. John E. Harrington, J.S.C.
Kennon Jenkins
Hon. Fred H. Kumpf, J.S.C.
Adolfo L. Lopez, Esq.
David G. McMillin, Esq.
Jonathan Mehl, Esq.
Raymond F. Meisenbacher, Jr., Esq.
Hon. David W. Morgan, J.S.C.
Anshu Pathak, Esq.
W. Peter Ragan, Sr., Esq.
Daniel I. Rubin, Esq.
Stephen E. Smith, Esq.
Hon. Jerome M. St. John, J.S.C.
William A. Thompon, II, Esq.
Andrew R. Wolf, Esq.
Robert J. Piscopo, AOC Staff
Robert D. Pitt, Esq., AOC Staff
APPENDIX – Excerpts From 1992 Report of the Special Civil Part
Practice Committee to the Supreme Court (Pages 51-59 and 101-122)
32
51
M. Proposed Amendments to R. 6:7-2--Administration of
Oath During Post-Judgment Discovery Proceedings;
Enforcement of Discovery Orders and Information
Subpoenas
The Committee proposes two kinds of amendments to
R. 6:7-2, which deals with post-judgment orders for discovery
and information subpoenas. The first is a simple amendment to
R. 6:7-2(a) that will make clear that the attorney for the
judgment-creditor can administer the oath to the judgmentdebtor
who has been ordered to appear for post-judgment
discovery. The second category of amendments deals with the
enforcement of discovery orders and information subpoenas,
which the Committee has found to be increasingly troublesome.
Enforcement problems may be increasing because more creditors,
including those who proceed pro se, are using post-judgment
discovery since the information subpoena became available in
1990. Whatever the cause, the Committee proposes a comprehensive
overhaul and codification of the enforcement procedures.
Rule 6:7-2(c) provides, in pertinent part, that "...the
failure to comply with an information subpoena shall be
treated as a failure to comply with an order for discovery
entered in accordance with paragraph (a) of this rule." The
question then arises as to whether the judgment creditor
should seek to enforce litigant's rights pursuant to R. 1:10-5
by way of order to show cause or motion. Papers submitted to
52
the Committee by one attorney, who is a member, indicated that
he uses the motion procedure. The Special Civil Part Clerk's
office in Atlantic County, on the other hand, supplies a form
petition for an order to show cause, together with a form of
order, to the litigant whose information subpoena has been
unanswered. In a letter and memorandum to the Committee,
another member contended that the proper procedure is by way
of motion. Others use the order to show cause.
The Committee concluded that either procedure is permitted
by the applicable court rule, Supreme Court opinion and
according to other published authorities on the subject.
Rule 1:6-2 states that "[a]n application to the court for an
order shall be by motion, or in special cases, by order to
show cause." The Supreme Court stated, in N.J. Dept. of
Health v. Roselle, 34 N.J. 331, 343 (1961), that either
procedure can be used by a litigant seeking supplemental
relief in a civil matter. The same conclusion is reached in
4A N.J. Practice (Walzer, Civil Practice Forms) 4th ed.,
1991) § 84.2 at 438. The skills training course materials
distributed to new attorneys in 1976-77 advocated use of the
order to show cause procedure. See: Nudelman and Rosenberg,
Collection Practice in New Jersey (I.C.L.E., 1976) at pp.
31-35.
The real question, if either procedure is permissible, is
which is best for accomplishing the purpose of the discovery
53
order and information subpoena while promoting the efficient
handling of the applications for supplemental relief. Another
question is the type of notice to the debtor, mail or personal
service, that the court will require before issuing an arrest
warrant; most judges require personal service so as to ensure
that notice and an opportunity to be heard are given before a
judgment-debtor is deprived of liberty for however brief a
period of time.
These questions arise in a context of one year's experience
with the information subpoena. One attorney reported
that of 100 cases in which he used the subpoena, 3 defendants
answered the questions, 4 defendants moved and 93 made no
response. The 93 cases were all brought to the court's
attention by orders to show cause and this meant that a judge
had to read the papers and sign the order in each and every
case. The volume raises questions regarding the effectiveness
of the information subpoena and the administrative burden for
the court. The Committee concluded that certain steps could
be taken to increase the likelihood of compliance with the
information subpoena.
First, the Committee decided that the information subpoena
itself, contained in Appendix XI-K to the Rules, should
contain words warning the debtor that failure to comply may
result in the debtor's arrest and incarceration. The warning
should be placed at the top of the subpoena in bold letters.
54
The form of the subpoena, as amended, is set forth in Section
III of this Report.
Second, the Committee decided that R. 6:7-2 should be
amended, by adding a new subparagraph (d), to specify that the
motion procedure, rather than the order to show cause, should
be used when a debtor fails to answer the subpoena and the
creditor seeks to enforce litigant's rights. The motion procedure
should also be used to enforce discovery orders in the
Committee's view. This will avoid the court's involvement at
the earliest stage of the enforcement procedure and defer such
involvement to a point, hopefully, after the debtor has
complied with the subpoena or discovery order and the involvement
is no longer required. The motion procedure in this
context requires a return day and this will be an exception to
the general motion practice under R. 6:3-3(c). The Committee
felt the motion should be returnable no sooner than 10 days
following service and filing so that there is adequate time
for the debtor to comply with the subpoena or order in
response to the notice of motion. Note that in the case of an
information subpoena, the debtor can avoid a court appearance
by furnishing answers to the subpoena at least 3 days before
the return date.
Third, the Committee believes that the current confusion
surrounding the enforcement procedure can be attenuated by
specifying in the rule the contents of the notice of motion,
55
the resulting order and the eventual arrest warrant and by
prescribing mandatory forms for each in the Appendices to the
Rules. Particularly, the new subparagraph (d) requires the
notice of motion to advise the debtor that if she or he fails
to appear on the return date of the motion, an order for his
or her arrest will be sought, together with an order to pay
the creditor's attorney fees in connection with the motion to
enforce litigant's rights. A new subparagraph (e) prescribes
the contents of an order, to be entered in the event that the
debtor fails to appear on the return date, for the debtor's
arrest, without further notice, if he or she fails to comply
with the discovery order or information subpoena within 10
days. A new subparagraph (f) provides for the issuance of an
arrest warrant in the event of further non-compliance, which
is to be executed between the hours of 7:30 a.m. and 3:00 p.m.
on a court day. For good cause shown, the warrant may be
executed at another time subject to such terms as the court
directs. Further, to ensure due process, if the motion and
order for arrest were served by mail, the arrest warrant can
be executed only at the address to which they were sent.
The proposed rule amendments follow. The mandatory forms
are set forth in Section III of this Report.
56
6:7-2.Orders for Discovery; Information Subpoenas
(a) Order for Discovery. The court may, upon the filing
by the judgment creditor or a successor in interest (if that
interest appears of record) of a petition verified by the
judgment creditor or the creditor's agent or attorney stating
the amount due on the judgment, make an order, upon good cause
shown, requiring any person who may possess information
concerning property of the judgment debtor to appear before
the attorney for the judgment creditor or any other person
authorized to administer an oath and make discovery under oath
concerning said property at a time and place therein specified.
The location specified shall be in the county where the
judgment debtor lives or works.
No more than one appearance of any such person may be
required without further court order. The time and place
specified in the order shall not be changed without the
written consent of the person to be deposed or upon further
order of the court.
(b) ...no change
(c) ...no change
(d) Enforcement by Motion. Proceedings to enforce
litigant's rights pursuant to R. 1:10-5, when a judgmentdebtor
fails to obey an order for discovery or an information
subpoena, shall be commenced by notice of motion supported by
affidavit or certification. The notice of motion and certifi
57
cation shall be in the form set forth in Appendices XI-L and
M to these Rules. The notice of motion shall contain a return
date and shall be served on the judgment-debtor and filed with
the clerk of the court not later than 10 days before the time
specified for the return date. The moving papers shall be
served on the judgment-debtor either in person or simultaneously
by regular and certified mail, return receipt
requested. The notice of motion shall state that the relief
sought will include an order:
(1) adjudicating that the judgment-debtor has violated
the litigant's rights of the judgment-creditor by failing to
comply with the order for discovery or information subpoena,
(2) compelling the judgment-debtor to immediately
furnish answers as required by the order for discovery or
information subpoena,
(3) directing that if the judgment-debtor fails to
appear in court on the return date or to furnish the required
answers, he or she shall be arrested and confined to the
county jail until he or she has complied with the order for
discovery or information subpoena,
(4) directing the judgment-debtor, if he or she fails to
appear in court on the return date, to pay the judgmentcreditor's
attorney fees, if any, in connection with the
motion to enforce litigant's rights, and
(5) granting such other relief as may be appropriate.
58
The notice of motion shall also state, in the case of an
information subpoena, that the court appearance may be avoided
by furnishing to the judgment-creditor written answers to the
information subpoena and questionnaire at least 3 days before
the return date.
(e) Order for Arrest. If the judgment-debtor has failed
to appear in court on the return date and the court enters an
order for his or her arrest, it shall be in the form set forth
in Appendix XI-N to these Rules and shall state that upon the
judgment-debtor's failure, within 10 days of the certified
date of mailing or personal service of the order, to comply
with the information subpoena or discovery order, the court
will issue a warrant for his or her arrest. The judgmentcreditor
shall serve a copy of the signed order upon the
judgment-debtor either personally or by mailing it simultaneously
by regular and certified mail, return receipt
requested. The date of mailing or personal service shall be
certified on the order.
(f) Warrant for Arrest. Upon the judgment-creditor's
certification, in the form set forth in Appendix XI-O to these
Rules, that a copy of the signed order for arrest to enforce
litigant's rights has been served upon the judgment-debtor as
provided in this rule, that 10 days have elapsed and that
there has been no compliance with the information subpoena or
discovery order, the court may issue an arrest warrant. The
59
warrant shall be in the form set forth in Appendix XI-P to
these Rules and, except for good cause shown and upon such
other terms as the court may direct, shall be executed by a
Special Civil Part Officer or Sheriff only between the hours
of 7:30 a.m. and 3:00 p.m. on a day when the court is in
session. If the notice of motion and order for arrest were
served on the judgment-debtor by mail, the warrant may be
executed only at the address to which they were sent. In all
cases the arrested judgment-debtor shall promptly be brought
before a judge of the Superior Court and released upon
compliance with the order for discovery or information
subpoena.
Note: Source -- R.R. 7:11-3(a)(b), 7:11-4. Paragraph
(a) amended June 29, 1973 to be effective September 10, 1973;
paragraph (a) amended July 17, 1975 to be effective September
8, 1975; amended July 21, 1980 to be effective September
8, 1980; caption amended, paragraph (a) caption and text
amended, paragraph (b) adopted and former paragraph (b)
amended and redesignated as paragraph (c) June 29, 1990 to be
effective September 4, 1990; paragraph (a) amended and
paragraphs (d)(e) and (f) adopted to be
effective .
101
F. Proposed Revision of Appendix XI-K--Information
Subpoena and Written Questions
The Committee proposes in Section I. M. of this Report to
amend R. 6:7-2 so as to improve the procedures for enforcing
discovery orders and information subpoenas. This effort also
involves the revision of the information subpoena itself so as
to advise judgment-debtors in large print at the top of the
form that failure to comply with the subpoena may result in
the debtor's arrest and incarceration. At the same time, the
Committee perceives a two-fold need to revise the written
questions attached to the subpoena.
First, the questions addressed to an individual judgmentdebtor
need to cover personalty in greater detail if there is
a possibility of later seeking to enforce a lien against
realty. Two New Jersey bankruptcy cases were brought to the
attention of the Committee in which levies on real estate were
successfully attacked because the interrogatories served on
the debtor did not inquire as to the debtor's cash on hand and
ownership of furniture, appliances and other household goods.
See Kellman v. Palese (In re Italiano), 66 Bankr. 468 (Bankr.
D. N.J. 1986) and Genz v. Hallmark Cards, Inc. (In re
Silverman), 6 Bankr. 991, 995-96 (D. N. J. 1980). The
additional questions proposed by the Committee would require
the judgment-debtor to list cash on hand and details regarding
other personal property, but only if the debtor owns real
102
estate and has cash and other personalty worth more than the
statutory exemption of $1,000.
Second, the present questions do not adequately inquire
about the finances and assets of judgment-debtors who happen
to be corporations, partnerships or other business entities.
The Committee proposes a set of 18 questions for this purpose,
which will be denominated "Questions for Business Entity."
The original questions, augmented as explained above, will be
called "Questions for Individuals." The judgment-creditor
will select the set that is appropriate for the particular
case.
The revised information subpoena, questions for
individual and questions for business entity follow. Together
they will comprise Appendix XI-K to the Rules.
103
APPENDIX XI-K
INFORMATION SUBPOENA AND WRITTEN QUESTIONS
IMPORTANT NOTICE - PLEASE READ CAREFULLY
FAILURE TO COMPLY WITH THIS INFORMATION SUBPOENA
MAY RESULT IN YOUR ARREST AND INCARCERATION
NAME:
ADDRESS:
TELEPHONE NO.:
Attorneys for:
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: SPECIAL CIVIL PART
Plaintiff, COUNTY
-vs- DOCKET NO.
Defendant, CIVIL ACTION
INFORMATION SUBPOENA
THE STATE OF NEW JERSEY, to:
Judgment has been entered against you in the Superior Court of
New Jersey, Law Division, Special Civil Part, County,
on , 19 , in the amount of $ plus costs,
of which $ together with interest from , 19 ,
remains due and unpaid.
Attached to this Information Subpoena is a list of questions
that court rules require you to answer within 14 days from the date
you receive this subpoena. If you do not answer the attached
questions within the time required, the opposing party may ask the
court to conduct a hearing in order to determine if you should be
held in contempt. You will be compelled to appear at the hearing
and explain your reasons for your failure to answer.
If this judgment has resulted from a default, you may have the
right to have this default judgment vacated by making an
appropriate motion to the court. Contact an attorney or the clerk
of the court for information on making such a motion. Even if you
dispute the judgment you must answer all of the attached questions.
104
You must answer each question giving complete answers,
attaching additional pages if necessary. False or misleading
answers may subject you to punishment by the court. However, you
need not provide information concerning the income and assets of
others living in your household unless you have a financial
interest in the assets or income. Be sure to sign and date your
answers and return them to the address in the upper left hand
corner within 14 days.
Dated: , 19
_______________________________
Attorney for Clerk
105
QUESTIONS FOR INDIVIDUALS
1. Full name ____________________________________________________
2. Address ______________________________________________________
3. Birthdate ____________________________________________________
4. Social Security # ____________________________________________
5. Driver's license # and expiration date _______________________
______________________________________________________________
6. Telephone # __________________________________________________
7. Full name and address of your employer _______________________
______________________________________________________________
(a) Your weekly salary: Gross Net __________
(b) If not presently employed, name and address of last
employer. _______________________________________________
_________________________________________________________
8. Is there currently a wage execution on your salary?
Yes No _____
9. List the names, addresses and account numbers of all bank
accounts on which your name appears.
10. If you receive money from any of the following sources, list
the amount, how often, and the name and address of the source:
Type Amount & Frequency Name & Address of Sources
Alimony
Loan Payments
Rental Income
Pensions
Bank Interest
Stock Dividends
106
11. Do you receive Social Security benefits?
Yes No _____
12. Do you own the property where you reside?
Yes No If yes, state the following:
(a) Name of the owner or owners _____________________________
(b) Date property was purchased _____________________________
(c) Purchase price __________________________________________
(d) Name and address of mortgage holder __________________________
______________________________________________________________
(e)Balance due on mortgage ________________________________________
13.Do you own any other real estate?
Yes No If yes, state the following
for each property:
(a) Address of property _____________________________________
(b) Date property was purchased _____________________________
(c) Purchase price __________________________________________
(d) Name and address of all owners________________________________
______________________________________________________________
(e) Name and address of mortgage holder __________________________
______________________________________________________________
(f) Balance due on mortgage ______________________________________
______________________________________________________________
(g) Names and address of all tenants and monthly rental paid
by each tenant _______________________________________________
______________________________________________________________
107
14. If you answered "yes" to either question 12 or 13, does the
present value of your personal property, which includes
automobiles, furniture, appliances, stocks, bonds, and cash on
hand, exceed $1,000?
Yes No If the answer is "yes,"
you must itemize all
personal property owned by
you.
Cash on hand: $ _______
Other personal property: (Set forth make, model and serial
number. If financed, give name and address of party to whom
payments are made).
If Financed
Date Purchase Balance Still Present
Item Purchased Price Due Value
15. Do you own a motor vehicle?
Yes No If yes, state the
following for each vehicle owned:
(a) Make, model and year of motor vehicle
(b) If there is a lien on the vehicle, state the name and
address of the lienholder and the amount due to the
lienholder
(c) License plate #
(d) Vehicle identification #
16. Do you own a business?
Yes No If Yes, state the
following:
108
(a) Name and address of the business ________________________
_________________________________________________________
(b) Is the business a Corporation , sole proprietorship
_____ or partnership ?
(c) The name and address of all stockholders, officers and/or
partners ________________________________________________
_________________________________________________________
(d) The amount of income received by you from the business
during the last twelve months ___________________________
_________________________________________________________
17. Set forth all other judgments that you are aware of that have
been entered against you and include:
Creditor's Creditor's Amount Name of
Name Attorney Due Court Docket #
I hereby certify that the foregoing statements made by me are
true. I am aware that if any of the foregoing statements made by
me are willfully false, I am subject to punishment.
Date: ____________________________________
109
QUESTIONS FOR BUSINESS ENTITY
1. Name of business including all trade names. __________________
______________________________________________________________
2. Addresses of all business locations. _________________________
______________________________________________________________
3. If the judgment-debtor is a corporation, the names and
addresses of all stockholders, officers and directors.
______________________________________________________________
______________________________________________________________
______________________________________________________________
4. If a partnership, list the names and addresses of all
partners.
______________________________________________________________
______________________________________________________________
______________________________________________________________
5. If a limited partnership, list the names and addresses of all
general partners.
______________________________________________________________
______________________________________________________________
______________________________________________________________
6. Set forth in detail the name, address and telephone number of
all businesses in which the principals of the judgment-debtor
now have an interest and set forth the nature of the interest.
______________________________________________________________
______________________________________________________________
7. For all bank accounts of the judgment-debtor business entity,
list the name of the bank, the bank's address, the account
number and the name in which the account is held.
______________________________________________________________
______________________________________________________________
110
8. Specifically state the present location of all books and
records of the business, including checkbooks. _______________
______________________________________________________________
9. State the name and address of the person, persons, or entities
who prepare, maintain and/or control the business records and
checkbooks. __________________________________________________
______________________________________________________________
10. List all physical assets of the business and their location.
If any asset is subject to a lien, state the name and address
of the lienholder and the amount due on the lien.
______________________________________________________________
______________________________________________________________
______________________________________________________________
11. Does the business own any real estate? Yes______ No ______
If yes, state the following for each property:
(a) Name(s) in which property is owned ______________________
(b) Address of property _____________________________________
(c) Date property was purchased _____________________________
(d) Purchase price __________________________________________
(e) Name and address of mortgage holder ____________________
________________________________________________________
(f) Balance due on mortgage _________________________________
(g) The names and addresses of all tenants and monthly
rentals paid by each tenant.
NAME AND ADDRESS OF TENANT MONTHLY RENTAL
111
12. List all motor vehicles owned by the business, stating the
following for each vehicle:
(a) Make, model and year ___________________________________
________________________________________________________
(b) License plate number ___________________________________
(c) Vehicle identification number __________________________
(d) If there is a lien on the vehicle, the name and address
of the lienholder and the amount due on the lien
________________________________________________________
________________________________________________________
13. List all accounts receivable due to the business, stating the
name, address and amount due on each receivable.
NAME AND ADDRESS AMOUNT DUE
14. For any transfer of business assets that has occurred within
six months from the date of this subpoena, specifically
identify:
(a) The nature of the asset _________________________________
_________________________________________________________
(b) The date of transfer ____________________________________
(c) Name and address of the person to whom the asset was
transferred _____________________________________________
_________________________________________________________
(d) The consideration paid for the asset and the form in
which it was paid (check, cash, etc.) ___________________
_________________________________________________________
112
(e) Explain in detail what happened to the consideration paid
for the asset ___________________________________________
_______________________________________________________
15. If the business is alleged to be no longer active, set forth:
(a) The date of cessation ___________________________________
(b) All assets as of the date of cessation __________________
_________________________________________________________
(c) The present location of those assets ____________________
_________________________________________________________
(d) If the assets were sold or transferred, set forth:
(1) The nature of the assets __________________________
___________________________________________________
(2) Date of transfer __________________________________
(3) Name and address of the person to whom the assets
were transferred __________________________________
___________________________________________________
(4 )The consideration paid for the assets and the form
in which it was paid ______________________________
___________________________________________________
(5) Explain in detail what happened to the consideration
paid for the assets _________________________
___________________________________________________
16. Set forth all other judgments that you are aware of that have
been entered against the business and include the following:
Creditor's Creditor's Amount Name of Docket
Name Attorney Due Court Number
113
17. For all litigation in which the business is presently
involved, state:
(a) Date litigation commenced _______________________________
(b) Name of party who started the litigation ________________
_________________________________________________________
(c) Nature of the action ____________________________________
_________________________________________________________
(d) Names of all parties and the names, addresses and telephone
numbers of their attorneys ________________________
_________________________________________________________
_________________________________________________________
(e) Trial date ______________________________________________
(f) Status of case __________________________________________
(g) Name of the court and docket number _____________________
_________________________________________________________
18. State the name, address and position of the person answering
these questions. _____________________________________________
______________________________________________________________
I hereby certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
willfully false, I am subject to punishment.
Date: __________________ ____________________________________
114
G. Proposed Appendices XI-L, M, N, O, P--Mandatory
Forms for Enforcing Discovery Orders and Information
Subpoenas
As explained in Sections I. M. and III. F. of this
Report, the Committee proposes to amend R. 6:7-2 and revise
the information subpoena so as to improve the procedures for
enforcing both the subpoena and orders for discovery. The
Committee is recommending that a motion procedure be
prescribed for this purpose, rather than an order to show
cause procedure, and the proposed amendments to R. 6:7-2 refer
to forms which the Committee feels should be mandatory. The
amendments to R. 6:7-2 and the forms are discussed in detail
in Section I. M. of this Report. The forms would be set forth
in the Appendices to the Rules as follows:
Appendix XI-L Notice of Motion for Order Enforcing
Litigant's Rights
Appendix XI-M Certification In Support of Motion for
Order Enforcing Litigants Rights
Appendix XI-N Order for Arrest
Appendix XI-O Certification In Support of Application
for Arrest Warrant
Appendix XI-P Warrant for Arrest
The proposed appendices follow.
115
APPENDIX XI-L
NOTICE OF MOTION FOR ORDER ENFORCING LITIGANT'S RIGHTS
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
Notice of Motion for Order
, Defendant Enforcing Litigant's Rights
PLEASE TAKE NOTICE that on ____________, 19__ at ______ __.m.,
I will apply to the above-named court, located at ________________
________________________________________, New Jersey, for an Order:
(1) Adjudicating that you have violated the litigant's rights of
the plaintiff by failure to comply with the (check one)
order for discovery, information subpoena served upon you;
(2) Compelling you to immediately furnish answers as required by
the (check one) order for discovery, information subpoena;
(3) Directing that, if you fail to appear in court on the date
written above, you shall be arrested by an Officer of the
Special Civil Part or the Sheriff and confined in the county
jail until you comply with the (check one) order for
discovery, information subpoena;
(4) Directing that, if you fail to appear in court on the date
written above, you shall pay the plaintiff's attorney fees in
connection with this motion;
(5) Granting such other relief as may be appropriate.
If you have been served with an information subpoena, you may avoid
having to appear in court by sending written answers to the questions
attached to the information subpoena to me no later than
three (3) days before the court date.
I will rely on the certification attached hereto.
Date: _______________________ __________________________
Attorney for Plaintiff or
Plaintiff, Pro Se
116
APPENDIX XI-M
CERTIFICATION IN SUPPORT OF MOTION FOR ORDER
ENFORCING LITIGANT'S RIGHTS
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
Certification In Support of Motion
, Defendant for Order Enforcing Litigant's Rights
The following certification is made in support of plaintiff's
motion for an order enforcing litigant's rights:
1. I am the plaintiff or plaintiff's attorney in this matter.
2. On _____________, 19__, plaintiff obtained a judgment against
the defendant ___________________________________________ for
$ _______________ damages, plus costs.
3. (Check applicable box below)
a. On _______________, 19___, an Order was entered by
this Court ordering defendant _____________________
to appear at ______________________________________
on _______________, 19___, at ______ __.m. and make
discovery on oath as to the defendant's property and
on _______________, 19___, a copy of the Order was
served upon ___________________________________
(check one) personally, by sending it simultaneously
by ordinary and certified mail, return
receipt requested to _____________________'s last
known address.
b. On _______________, 19___, I served an information
subpoena and attached questions as permitted by
Court Rules on the defendant _____________________
(check one) personally, by sending it simultaneously
by regular and certified mail, return
receipt requested to defendant's last known address.
117
4. _______________________ has failed to comply with (check one)
the order, the information subpoena.
5. I request that the Court enter an order enforcing litigant's
rights.
6. On _______________, 19___, I served copies of this motion and
certification on ___________________ (check one) personally,
by sending them simultaneously by regular and certified
mail, return receipt requested.
I certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
willfully false, I am subject to punishment.
Date: _________________ _______________________________
118
APPENDIX XI-N
ORDER FOR ARREST
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
ORDER FOR ARREST
, Defendant
This matter being opened to the court by ____________________
on plaintiff's motion for an order enforcing litigant's rights and
the defendant having failed to appear on the return date and having
failed to comply with the (check one) order for discovery previously
entered in this case, information subpoena;
It is on the ____________ day of ____________, 19___, ORDERED
and adjudged:
1. Defendant _______________ has violated plaintiff's rights as a
litigant;
2. Defendant _______________ shall immediately furnish answers as
required by the (check one) order for discovery, information
subpoena
3. If defendant _______________ fails to comply with the (check
one) order for discovery, information subpoena within ten
(10) days of the certified date of personal service or mailing
of this order, a warrant for the defendant's arrest shall
issue out of this Court without further notice;
____________________________________
, J.S.C.
PROOF OF SERVICE
119
On ____________, 19___, I served a true copy of this Order on
defendant _______________ (check one) personally, by sending
it simultaneously by regular and certified mail, return receipt
requested to:
(Set forth address) _______________________________________________
________________________________________________
I certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
wilfully false, I am subject to punishment.
Date: _______________ ____________________________________
120
APPENDIX XI-O
CERTIFICATION IN SUPPORT OF APPLICATION
FOR ARREST WARRANT
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
COUNTY
Telephone No.
Docket No.
, Plaintiff CIVIL ACTION
Certification in Support of
v. Application for Arrest Warrant
, Defendant
The following certification is made in support of plaintiff's
application for an arrest warrant:
1. I am the plaintiff or plaintiff's attorney in this matter.
2. On _____________, 19__, plaintiff obtained a judgment against
the defendant ___________________________________________ for
$ _______________ damages, plus costs.
3. (Check applicable box below)
a. On _______________, 19___, an Order was entered by
this Court ordering defendant _____________________
to appear at ______________________________________
on _______________, 19___, at ______ __.m. and make
discovery on oath as to the defendant's property and
on _______________, 19___, a copy of the Order was
served upon ___________________________________
(check one) personally, by sending it simultaneously
by ordinary and certified mail, return
receipt requested to _____________________'s last
known address.
b. On _______________, 19___, I served an information
subpoena and attached questions as permitted by
Court Rules on the defendant _____________________
(check one) personally, by sending it simultaneously
by regular and certified mail, return
receipt requested to defendant's last known address.
121
4. _______________________ has failed to comply with (check one)
the order, the information subpoena.
5. On , 19 , the Court entered an Order for Arrest
when defendant failed to appear on the return day of my motion
for order enforcing litigant's rights.
6. On , 19 , I served a true copy of the Order for
Arrest on (check one) personally, by
sending it simultaneously by regular and certified mail,
return receipt requested.
7. Ten days have passed since I served a copy of the Order for
Arrest on defendant and defendant has not complied with the
(check one) information subpoena, order for discovery.
8. I request that the Court issue a warrant for the arrest of
defendant.
I certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
willfully false, I am subject to punishment.
Date: ____________________________________
122
APPENDIX XI-P
WARRANT FOR ARREST
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
WARRANT FOR ARREST
, Defendant
TO: A Court Officer of the Special Civil Part or the Sheriff of
________________________ County
You are hereby commanded to arrest _________________________,
at (check one) any location, the address set forth in the
annexed order for arrest between the hours of 7:30 a.m. and
3:00 p.m. on a day when the court is in session, and bring him or
her forthwith before a Judge of the Superior Court to await the
further order of the Court in this matter.
Date: ________________ WITNESS: _______________________________
Judge of the Superior Court
_______________________________
Clerk of the Special Civil Part
OF THE SUPREME COURT COMMITTEE
ON SPECIAL CIVIL PART PRACTICE
JANUARY 21, 2010
i
TABLE OF CONTENTS
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION .......................1
A. Proposed Amendment to R. 6:2-3(b) – Service of Original Process
in Tenancy Actions ........................................................................................1
B. Proposed Amendment to Appendix XI-B – Return of Service on
Tenancy Summons ........................................................................................4
C. Proposed Amendments to R. 6:7-1 – Protection of Exempt Funds
From Levy......................................................................................................7
D. Proposed Amendments to Appendix XI-H to Protect Exempt
Funds From Levy – Execution Against Goods and Chattels ..................11
E. Proposed Amendment to R. 6:7-1(b) – Filing Notice to Debtor
With the Clerk .............................................................................................13
II. RULE AMENDMENTS CONSIDERED AND REJECTED............................16
A. Proposed Amendment to R. 6:1-2 – Monetary Limits Increase .............16
B. Proposed Amendment to Appendix XI-X – Verified Tenancy
Complaint.....................................................................................................19
C. Proposed Amendments to Appendix XI-J – Wage Execution ................20
D. Proposed Amendment to R. 6:6-6 - Provision of Notice to
Judgment Creditors of Applications for Post-Judgment Relief
From Levies..................................................................................................21
E. Proposed Amendment to R. 6:7-2(a) – Elimination of
Requirement to Show Good Cause for Issuance of Order to Take
Post Judgment Discovery............................................................................22
F. Proposed Amendments to Rule 6:7-2 and Appendices XI-M and
XI-O - “Shall” vs. “May”...........................................................................23
ii
III. OTHER RECOMMENDATIONS - NONE........................................................26
IV. LEGISLATION - NONE ......................................................................................27
V. MATTERS HELD FOR CONSIDERATION ....................................................28
A. Use of Credit Cards to Pay Fees and Post Deposits .................................28
B. “Shotgun” Bank Levies...............................................................................29
C. Proposed Amendment to R. 6:7-2(b)(2) - Eliminate Requirement
of Serving Defendant With Information Subpoena Before Serving
Banks ............................................................................................................30
VI. CONCLUSION......................................................................................................31
APPENDIX – Excerpts From 1992 Report of the Special Civil Part Practice
Committee to the Supreme Court (Pages 51-59 and 101-122)…………………... 32
1
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendment to R. 6:2-3(b) – Service of Original Process in Tenancy
Actions
During the 2006-2008 Committee term a member had proposed to amend R. 6:2-3(b) so
as to resolve a perceived discrepancy between the statute and the rule regarding service in
tenancy actions. N.J.S.A. 2A:18-54 provides for service of the summons and complaint by
posting in those situations where admission to the subject premises is refused or no person above
the age of 14 is present. Rule 6:2-3(b), on the other hand, requires service by mail and by either
personal delivery or posting. In other words, there is no requirement in the rule that the Special
Civil Part Officer first attempt personal service before posting. The Committee decided, by a
vote of 16-4, to recommend amending the rule so as to require personal service, but permit
attachment to the door of the defendant’s unit if the Officer is unable to personally deliver it to
the defendant or a member of the defendant’s household over the age of 14 years. Note that, if
adopted, this rule change will require a modification of the Officer’s return of service on the
summons and this is addressed in the next section of the Report. The text of the proposed
amendment to the rule follows.
2
6:2-3. Service of Process
(a) By Whom Served. ... no change.
(b) Manner of Service. Service of process within this State shall be made in accordance
with R. 6:2-3(d) or as otherwise provided by court order consistent with due process of law, or in
accordance with R. 4:4-5. Substituted service within this State shall be made pursuant to R. 6:2-
3(d). Substituted or constructive service outside this State may be made pursuant to the
applicable provisions in R. 4:4-4 or R. 4:4-5.
In summary actions for the recovery of premises [landlord and tenant actions], service of
process shall be by ordinary mail and by [either] delivery personally pursuant to R. 4:4-4. When
the person serving process is unable to effectuate service by delivering process personally,
service may be effectuated [or] by affixing a copy of the summons and complaint on the door of
the unit occupied by the defendant [subject premises]. When the plaintiff-landlord has reason to
believe that service may not be made at the subject premises, the landlord shall also request
service at an address, by certified and regular mail addressed to the tenant, where the landlord
believes that service will be effectuated. The landlord shall furnish to the clerk two additional
copies of the summons and complaint for each defendant for this purpose.
(c) Notice of Service. ... no change.
(d) Service by Mail Program. ... no change.
(e) General Appearance; Acknowledgement of Service. ... no change.
Note: Source--R.R. 7:4-6(a)(b) (first three sentences), 7:4-7. Paragraph (a) amended July 7,
1971 effective September 13, 1971; paragraph (a) amended July 14, 1972 to be effective
September 5, 1972; paragraph (b) amended November 27, 1974 to be effective April 1, 1975;
paragraphs (a)(b) amended July 17, 1975 to be effective September 8, 1975; paragraph (a)
amended July 16, 1979 to be effective September 10, 1979; paragraph (a) amended July 21, 1980
to be effective September 8, 1980; paragraph (b) amended July 16, 1981 to be effective
September 14, 1981; paragraphs (a) and (b) amended and paragraph (d) adopted November 5,
3
1986 to be effective January 1, 1987; paragraph (c) amended November 7, 1988 to be effective
January 2, 1989; paragraphs (b) and (d) amended June 29, 1990 to be effective September 4,
1990; paragraph (d) amended July 17, 1991 to be effective immediately; paragraph (e) adopted
July 14, 1992 to be effective September 1, 1992; paragraphs (a) and (e) amended July 13, 1994
to be effective September 1, 1994; paragraph (d)(4) amended July 5, 2000 to be effective
September 5, 2000; paragraphs (a), (b), (d), (d)(2), and (e) amended July 12, 2002 to be effective
September 3, 2002; paragraphs (b), d(4) and (5) amended July 28, 2004 to be effective
September 1, 2004; paragraph (b) amended__________, 2010 to be effective___________,2010.
4
B. Proposed Amendment to Appendix XI-B – Return of Service on Tenancy
Summons
Having agreed to recommend amending R. 6:2-1, as described above in Section I.A. of
this Report, the Committee turned its attention to the Special Civil Part Officer’s return of
service on the summons, which is a mandated form set forth in Appendix XI-B to the court rules.
Members of the Committee debated the degree of detail that should be required if the officer is
unsuccessful in making personal service. Concerns ranged from fear of imposing unreasonable
requirements on the officers when they are unable to gain access to the door of the tenant’s unit
in a large apartment building, on the one hand, to a need for specifics when service of process is
challenged by the defendant, on the other. Included was the thought that the court officers
should have a clear understanding of what is expected of them by the court. Ultimately, the
Committee decided (by a vote of 9 in favor and 7 opposed) to recommend amending the return
of service on the summons by adding a line for the court officer to describe the efforts made to
personally serve the defendant, if that effort was unsuccessful, and to retain the current line for
the officer to describe the premises when the summons has been posted. It will be up to the
judge to determine the adequacy of service if that issue is raised in the litigation. The proposed
amendments to Appendix XI-B follow.
5
APPENDIX XI-B. TENANCY SUMMONS
AND RETURN OF SERVICE (R. 6:2-1)
Plaintiff or Plaintiff’s Attorney Information: Superior Court of New Jersey
Name: _____________________________ Law Division, Special Civil Part
Address: ___________________________ __________________ County
___________________________________ ___________________________
Phone: (___)_________________________ ___________________________
(____)______________________
______________________________, Plaintiff(s) Docket Number: LT - _____________
(to be provided by the court)
versus
Civil Action
______________________________, Defendant(s) SUMMONS
LANDLORD/TENANT
Defendant Information:
Name: __________________________ ___Nonpayment
Address: _________________________ ___Other
_________________________________
Phone:(___)_______________________
NOTICE TO TENANT: The purpose of the attached complaint is to permanently remove you and your
belongings from the premises. If you want the court to hear your side of the case you must appear in
court on this date and time: _____________ at ________ a.m./p.m., or the court may rule against you.
REPORT TO: ___________________________________
If you cannot afford to pay for a lawyer, free legal advice may be available by contacting Legal Services at
________________. If you can afford to pay a lawyer but do not know one, you may call the Lawyer Referral
Services of your local county Bar Association at _______________.
You may be eligible for housing assistance. To determine your eligibility, you must immediately contact the
welfare agency in your county at __________________, telephone number ____________________.
If you need an interpreter or an accommodation for a disability, you must notify the court immediately.
Si Ud. no tiene dinero para pagar a un abogado, es posible que pueda recibir consejos legales gratuitos si se
comunica con Servicios Legales (Legal Services) al ____________. Si tiene dinero para pagar a un abogado
pero no conoce ninguno puede llamar a Servicios de Recomendación de Abogados (Lawyer Referral Services)
del Colegio de Abogados (Bar Association) de su condado local al_________________.
Es posible que pueda recibir asistencia con la vivienda si se comunica con la agencia de asistencia publica
(welfare agency) de su condado al _____________________________________, telefono ___________.
Si necesita un interprete o alguna acomodación para un impedimento fisico, tiene que notificárselo
inmediatamente al tribunal.
Date: ___________________ _________________________________________
Clerk of the Special Civil Part
6
COURT OFFICER’S RETURN OF SERVICE (FOR COURT USE ONLY)
Docket Number: ________________________Date: __________________Time: ______________
WM ___ WF ___ BM ___ BF OTHER _____ HT ____ WT _____ AGE ___ MUSTACHE ___ BEARD ___ GLASSES___ NAME:
____________________________RELATIONSHIP: __________
Efforts Made to Personally Serve __________________________________________________________________________
_____________________________________________________________________________________________________
Description of Premises if Posted __________________________________________________________________________
_____________________________________________________________________________________________________
I hereby certify the above to be true and accurate: _________________________________________________________
Special Civil Part Officer
[Note: Former Appendix XI-B, consisting of model tenancy complaint and summons forms, deleted, and new tenancy
summons and return of service form adopted July 12, 2002 to be effective September 3, 2002; amended July 27, 2006 to be
effective September 1, 2006: amended_____________, 2010 to be effective___________, 2010.]
7
C. Proposed Amendments to R. 6:7-1 – Protection of Exempt Funds From Levy
The Committee stated in its 2008 report to the Supreme Court that it was holding for
further consideration the idea of going beyond the provision of a speedy remedy when bank
accounts are levied upon that contain funds that are exempt from levy under federal or state law
to find a mechanism that can prevent it from happening in the first place. The funds in question
come from a variety of sources, such as Social Security, S.S.I., V.A., unemployment, workers’
compensation, welfare and child support payments. The Committee noted that in 2006 the
Supreme Court accepted the its recommendation to provide a speedy mechanism in the court
rules for recipients of exempt funds to seek their release from levy (see, R. 6:6-6(a)), but
concluded that more should be done to prevent such levies in the first place because it is often
difficult to undo the damage they cause to those members of society least able to afford it. These
consequences include bank fees for checks that have bounced, bank fees for freezing the debtor’s
account pursuant to the levy, evictions for nonpayment of rent and deprivation of life’s
necessities.
The Committee was well aware of the danger of intruding on the legislative realm if it
sought to create new substantive rights, but it became clear that the rights in question had already
been defined in both federal and state legislation and the question is one of how best to
implement those legislative determinations in the judicial context. The mechanism
recommended by the Committee consists of limiting the scope of any levy on bank accounts so
that it conforms to established law and so that it can be easily implemented by the third-party
garnishee banks. The Committee was informed that several large banks are already doing this
voluntarily and that other jurisdictions have pursued similar efforts along these lines.
8
The easiest scenario to address is one in which the deposits into a judgment-debtor’s
account have been made electronically on a recurring basis and have come exclusively from an
exempt source. This is not difficult for banks to discern from their electronic records. Some
accounts, however, have been in existence for many years and it could be difficult to determine
which funds are exempt when they have been commingled with non-exempt funds if the bank
has to look at the entire deposit history of an account. As a practical matter the Committee
concluded, as most judges have when called upon to rule in these matters, that if nothing but
exempt funds have been electronically deposited into an account for 90 days, the account almost
certainly consists exclusively of those exempt funds and the entire amount should be protected
from levy. It is also the period of time that is of most interest to judgment-creditors, as reflected
in Question #11 in the mandatory form for the Information Subpoena contained in Appendix XIL
to the court rules. Question #11 asks the judgment-debtor for copies of the three most recent
bank statements for any accounts containing funds from seven exempt sources.
With regard to situations where funds from exempt and non-exempt sources have been
commingled within the 90 days preceding the levy, the Committee concluded that funds
deposited electronically on a recurring basis by exempt sources within the last 45 days should be
presumed by the garnishee bank to be exempt from levy. Again, this should be easily
discernable by the bank from its electronic records.
These recommendations have been incorporated into proposed amendments to R. 6:7-1,
as set forth infra. They will comprise a new paragraph (b), divided into two parts that address
the situations described above. The implementation of the rule amendments would be
accomplished by corresponding modifications to the form of the writ of execution against goods
and chattels contained in Appendix XI-H to the rules (see Section I.D. of this Report, below).
9
Note that the addition of a new paragraph (b) will require the redesignation of the current (b), (c),
and (d) as paragraphs (c), (d) and (e), respectively.
It should be noted that the Committee was divided on the question of whether to include
the statutory $1,000 exemption (regardless of source) in the rule amendments. Some members
felt that doing so would effectively preclude the judgment-debtor from choosing to exempt
$1,000 worth of tangible property or cash from levy rather than the $1,000 in the bank account
when the debtor might prefer to use the money in the account to pay the judgment. Others
thought that funds necessary to meet immediate basic needs (an amount at least equal to the
$1000 general exemption) can and must be protected from judicial restraint in all consumers’
bank accounts in order to achieve a minimum level of basic fairness --- and protection from
extreme hardship --- for low-income New Jerseyans. Ultimately the Committee decided to leave
to the debtor the choice of which funds to protect by using the statutory $1,000 exemption and
focus instead on protecting the funds that are exempt by statute in their entirety. The proposed
amendments follow.
10
6:7-1. Requests for Issuance of Writs of Execution; Contents of Writs of Execution and Other
Process for the Enforcement of Judgments; Notice to Debtor; Claim for Exemption;
Warrant of Removal; Enforcement of Consent Judgments and Stipulations of Settlement
in Tenancy Actions
(a) Requests for Issuance; Intention to Return. ... no change.
(b) Contents of Writs of Execution and Other Process for the Enforcement of
Judgments. All writs of execution and other process for the enforcement of judgments shall
provide that any levy pursuant thereto shall exclude:
(1) all funds in an account of the debtor with a bank or other financial institution, if all
deposits into the account during the 90 days immediately prior to service of the writ were
electronic deposits, made on a recurring basis, of funds identifiable by the bank or other financial
institution as exempt from execution, levy or attachment under New Jersey or federal law, and
(2) all funds deposited electronically in an account of the debtor with a bank or other
financial institution during the 45 days immediately prior to service of the writ that are
identifiable by the bank or other financial institution as exempt from execution, levy or
attachment under New Jersey or federal law.
(c) [ (b) ] Notice to Debtor. ... no change to text.
(d) [ (c) ] Warrant of Removal; Issuance, Execution. ... no change to text.
(e) [ (d) ] Enforcement of Consent Judgments and Stipulations of Settlement in Tenancy
Actions. ... no change to text.
Note: Source – R.R. 7:11 1; former rule redesignated as paragraph (a) and paragraph (b) adopted and caption
amended July 16, 1981 to be effective September 14, 1981; paragraph (b) amended November 1, 1985 to be
effective January 2, 1986; caption amended and paragraph (c) adopted November 7, 1988 to be effective January 2,
1989; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; caption and paragraph (c),
caption and text, amended July 13, 1994 to be effective September 1, 1994; paragraph (a) caption and text amended
June 28, 1996 to be effective September 1, 1996; caption amended and paragraph (d) adopted July 18, 2001 to be
effective November 1, 2001; paragraph (c) amended September 14, 2004 to be effective immediately; paragraph (a)
amended July 27, 2006 to be effective September 1, 2006; paragraph (b) adopted and former paragraphs (b), (c), and
(d) redesignated as (c), (d), and (e) respectively ______________, 2010 to be effective____________, 2010.
11
D. Proposed Amendments to Appendix XI-H to Protect Exempt Funds From
Levy – Execution Against Goods and Chattels
To effectuate the protection of exempt funds from levy as set forth in the proposed
amendments to R. 6:7-1 in Section I.C. of this Report, above, the Committee recommends that
the form for the writ of execution against goods and chattels set forth in Appendix XI-H to the
court rules be amended accordingly. All the writs issued by the Special Civil Part statewide will
contain these provisions since the form is generated by the Automated Case Management System
(ACMS). It is important for the garnishee bank to know that the levy pursuant to the writ should
not include those funds in the judgment-debtor’s account that the bank can identify as being
exempt under federal or state law and so the amended form of the writ would be explicit in this
regard. As noted in the previous section of this Report, several banks are already doing this
voluntarily, utilizing their electronic record keeping capability to identify the exempt funds. The
proposed amendments to Appendix XI-H follow.
12
APPENDIX XI-H EXECUTION AGAINST GOODS AND CHATTELS
DOCKET NO.: ___ DC-______-__ SUPERIOR COURT OF NEW JERSEY
JUDGMENT NO.: ___ VJ-_______-__ SPECIAL CIVIL PART
WRIT NUMBER: ____ _______________ COUNTY
STATE OF NEW JERSEY
EXECUTION AGAINST GOODS AND CHATTELS
PLAINTIFF(S)
VS.
DEBTORS: __________________________
DEFENDANT(S) __________________________
ADDRESS OF FIRST DEBTOR:
STREET ADDRESS
CITY NJ ZIP
TO: ___________________________________________
COURT OFFICER OF THE SPECIAL CIVIL PART
YOU ARE ORDERED to levy on the property of any of the debtors designated herein; your actions may include,
but are not limited to, taking into possession any motor vehicle(s) owned by any of the debtors, taking possession of
any inventory and/or machinery, cash, bank accounts, jewelry, electronic devices, fur coats, musical instruments,
stock certificates, securities, notes, rents, accounts receivable, or any item(s) which may be sold pursuant to statute
to satisfy this execution in full or in part. Any levy pursuant to this writ shall exclude (1) all funds in an account of
the debtor with a bank or other financial institution, if all deposits into the account during the 90 days immediately
prior to service of the writ were electronic deposits, made on a recurring basis, of funds identifiable by the bank or
other financial institution as exempt from execution, levy or attachment under New Jersey or federal law, and (2) all
funds deposited electronically in an account of the debtor with a bank or other financial institution during the 45
days immediately prior to service of the writ that are identifiable by the bank or other financial institution as exempt
from execution, levy or attachment under New Jersey or federal law. All proceeds are to be paid to the court officer
who shall pay them to the creditor or the attorney for the creditor, or, if this is not possible, to the court. This order
for execution shall be valid for two years from this date.
Local police departments are authorized and requested to provide assistance, if needed, to the officer executing
this writ. This does not authorize entry to a residence by force unless specifically directed by court order.
Judgment Date _________ Date: ________________
Judgment Amount................................................. $________
Costs and Atty. Fees .............................................$________ _________________________________
Subsequent Costs ..................................................$________ Judge
Total......................................................................$________
Credits, if any .......................................................$________
Subtotal A.............................................................$________ _________________________________
Interest .................................................................. $________ Clerk of the Special Civil Part
Execution costs and mileage................................. $________
Subtotal B ............................................................. $________ I RETURN this execution to the Court
Court officer fee....................................................$________
Total due this date................................................. $________ ( ) Unsatisfied ___________________
Date: ________________.................................... ( ) Satisfied ( ) Partly Satisfied
Property to be Levied Amount Collected. . ____________
Upon and Location of Same:
Fee Deducted. . . . . . ____________
Amount Paid to Atty.____________
CITY ST ZIP
CREDITOR’S ATTORNEY AND ADDRESS: Date: ______________
______________________________________
______________________________________
______________________________________ ______________________________
CITY NJ ZIP Court Officer
Telephone: ___-__________
13
E. Proposed Amendment to R. 6:7-1(b) – Filing Notice to Debtor With the Clerk
Rule 4:59-1(g) requires a levying officer (Sheriff’s Officer for writs emanating from the
Civil Part of the Law Division; Special Civil Part Officer for writs issued by the Special Civil
Part of the Law Division) to mail copies of the Notice to Debtor (as set forth in Appendix VI to
the rules) to the judgment-debtor and judgment-creditor and to file a copy with the clerk. Rule
6:7-1(b) makes R. 4:59-1(g) applicable to actions in the Special Civil Part. The vast majority of
the 140,000 writs of execution against goods and chattels issued by the Special Civil Part each
year are used to levy against bank accounts owned by judgment-debtors and the clerks thus
receive two separate copies of the Notice to Debtor: the first one from the levying officer and
the second with the supporting papers submitted by the judgment-creditor when moving for a
turnover order. A member of the Committee explained, on behalf of the Civil Division
Managers and Assistant Managers, that the volume of these documents has become impossible to
keep up with and the Conference of Civil Division Managers thus recommended in its Report on
Workload Reduction Through Operational Efficiencies that the rule be amended to eliminate the
requirement that the officer file a copy when making a bank levy since the creditor is required to
submit a copy with the motion for a turnover order.
The provision in question was adopted by the Supreme Court in 1985 on the joint
recommendation of the Civil and Special Civil Part Practice Committees. The rationale for
requiring the Court Officer to file a copy of the Notice to Debtor with the clerk, however, was
not discussed in either committee's 1985 report to the Supreme Court.
This Committee decided to recommend an amendment to R. 6:7-1(b) that would require
filing of a copy of the Notice to Debtor by the Special Civil Part Officer only in cases involving
a levy on tangible physical property; a copy of the Notice would still be required with the
14
judgment-creditor’s motion for a turnover order in cases involving a bank levy. The purpose of
the amendment is to eliminate the duplicative filings in connection with executions on bank
accounts. The Committee proposes that R. 6:7-1(b) be amended, rather than R. 4:59-1(g),
because the number of bank levies is so much greater in the Special Civil Part and the
Committee is not aware of a comparable problem in Civil Part actions. The text of the proposed
rule amendment follows. Please note that paragraph (b) will become paragraph (c) if the
Supreme Court approves the amendment to the rule for the purpose of protecting exempt funds
from levy, as proposed in section I.C. of this Report, above.
15
6:7-1. Requests for Issuance of Writs of Execution; Notice to Debtor; Claim for Exemption;
Warrant of Removal; Enforcement of Consent Judgments and Stipulations of Settlement in
Tenancy Actions
(a) Requests for Issuance; Intention to Return. ... no change.
(b) Notice to Debtor. The provisions of R. 4:59-1(g) respecting notice to debtor,
exemption claims and deferment of turnover and sales of assets shall apply to all writs of
execution issued by the Law Division, Special Civil Part, except that a copy of the Notice to
Debtor shall not be filed by the levying officer with the clerk of the court after a levy on a bank
account. The notice to debtor shall be in the form prescribed by Appendix VI to these rules.
(c) Warrant of Removal; Issuance, Execution. ... no change.
(d) Enforcement of Consent Judgments and Stipulations of Settlement in Tenancy
Actions. ... no change.
Note: Source – R.R. 7:11 1; former rule redesignated as paragraph (a) and paragraph (b)
adopted and caption amended July 16, 1981 to be effective September 14, 1981; paragraph (b)
amended November 1, 1985 to be effective January 2, 1986; caption amended and paragraph (c)
adopted November 7, 1988 to be effective January 2, 1989; paragraphs (b) and (c) amended July
14, 1992 to be effective September 1, 1992; caption and paragraph (c), caption and text,
amended July 13, 1994 to be effective September 1, 1994; paragraph (a) caption and text
amended June 28, 1996 to be effective September 1, 1996; caption amended and paragraph (d)
adopted July 18, 2001 to be effective November 1, 2001; paragraph (c) amended September 14,
2004 to be effective immediately; paragraph (a) amended July 27, 2006 to be effective
September 1, 2006; paragraph (b) amended__________, 2010 to be effective________, 2010.
16
II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Proposed Amendment to R. 6:1-2 – Monetary Limits Increase
During the 2006-2008 term, the Committee discussed the possibility of raising the
monetary limits for small claims and regular Special Civil Part cases. At the request of the
Chair, staff had researched the effect of inflation on those limits and reported back to the
Committee. The results of that research are set forth below in an excerpt taken from the
Committee’s 2008 Report to the Supreme Court (pages 40-41). In 2008 the Committee
concluded that there should be no increase in the limits at that time because of the recent large
increases in the volume of collection cases and the fact that the current monetary limits were still
within the boundaries set in 1994 when adjusted for inflation.
Those two factors retain their validity today. In fact, contract filings increased from
Court Year 2007 to 2008 by an even greater margin than had been predicted in the Committee’s
2008 Report; the projection was for a 20% increase, from 299,438 to 361,647, while the actual
number of filings for 2008 turned out to be 383,154, which represents an increase of 28% over
2007. The number of contract filings in Court Year 2009 came to 378,068, which is 1% less
than 2008, but still a 26% increase over 2007. This indicates that the higher level of contract
filings will be sustained and was not a one-time phenomenon. After a lengthy discussion this
Committee decided, by a vote of 14-5, with one abstention, not to recommend any increase in the
current monetary limits. The excerpt from the Committee’s 2008 Report follows.
17
EXCERPT FROM 2008 REPORT OF THE SPECIAL CIVIL PART PRACTICE
COMMITTEE TO THE SUPREME COURT – PAGES 40-41
The Committee discussed the possibility of raising the monetary limits for small claims
and regular Special Civil Part cases. The Chair asked staff to research the effect of inflation on
those limits and report back to the Committee.
A history of the Special Civil Part monetary limits over the last quarter century shows the
following progression:
Year Regular SCP Limit Small Claims Limit
1981 $5,000.00 $1,000.00
1992 $7,500.00 $1,500.00
1994 $10,000.00 $2,000.00
2002 $15,000.00 $3,000.00
Note that the ratio of the two limits has always been maintained at 5 to 1.
Taking into account changes in the Consumer Price Index for Urban Wage Earners and
Clerical Workers, published by U.S. Department of Labor’s Bureau of Labor Statistics for New
York City and Northeastern New Jersey, the cost of living increased by 17.8% between
September 2002 (the last time the Special Civil Part monetary limits were raised) and September
2007. This would appear to justify an increase in the monetary limits from $15,000.00 to
$17,600.00 and from $3,000.00 to $3,534.00 for regular Special Civil Part cases and small
claims, respectively.
Taking a look at inflation from a longer perspective, however, raises the question of
whether such a change would be appropriate at this time. The value of the 1994 limits
($10,000.00 and $2,000.00) was $12, 030.00 and $2,406.00 in 2002, and those values projected
to September 2007 come out at $14,171.00 and $2874.00, respectively. This indicates that we
have not yet exceeded the 1994 limits when they are adjusted for inflation.
An examination of changes in the contracts caseload since 2002 suggests a need for
caution when considering another increase in the monetary limits. The chart below indicates that
the contracts caseload increased by 20% in Court year 2003, which is when the last monetary
limit increase took effect. Between Court Year 2003 and Court Year 2007 there was another
20% increase in the caseload, despite a 12% decline in 2005. For Court Year 2008 the AOC has
figures for the first 5 months and when they are projected for the entire year we can expect
another 20% increase in the contacts caseload. Note: When that 5 month period is compared to
the same period in Court Year 2006, we see an increase of almost 27%.
The most recent contract caseload increase may be due to the confluence of an economic
slowdown and changes in the bankruptcy laws that preclude discharge of the debts that now
appear in the contracts caseload. Whatever the cause, we know from past experience that an
increase in the Special Civil Part monetary limits results in a significant increase in the caseload.
18
This, coupled with the fact that we have not yet exceeded the 1994 monetary limits (when
adjusted for inflation) suggests that this would not be a good time to raise the monetary limits
again. Note that while the volume of tenancy actions and small claims has remained relatively
static over the years, these cases and the greatly increased number of contract cases are being
handled by 30% fewer staff than the Special Civil Part had in 1994. During the next Term, the
Committee plans to explore the possibility of raising the limits for collection actions and small
claims, neither of which involves the extent of discovery required for tort actions.
Court Year Contract Filings % Increase
2002 208,259 ---
2003 249,934 20%
2004 269,989 8%
2005 236,670 -12%
2006 270,692 14%
2007 299,438 11%
2008 361,647* 20%*
*Projections based on contract filings during the first 5 months of Court Year 2008
19
B. Proposed Amendment to Appendix XI-X – Verified Tenancy Complaint
The Committee considered correspondence between AOC Staff and an attorney regarding
the clarity (or asserted lack thereof) in paragraph 9A and a problem with paragraph 9B of the
Verified Complaint – Non payment of Rent form contained in Appendix XI-X to the Rules. It
was noted during the discussion of this item that the language of the Verified Complaint had
been crafted through a lengthy process of discussion that included this Committee, the
Committee of Special Civil Part Supervising Judges and the Special Civil Part Management
Committee. It was also noted that the request for more clarity was not specific as to what
changes should be made to achieve that goal. The Committee decided to take no further action
on the matter.
20
C. Proposed Amendments to Appendix XI-J – Wage Execution
The Committee considered correspondence between the Acting Administrative Director
of the Courts, and an attorney who proposed amending the model Wage Execution form, set
forth in Appendix XI-J to the Rules, to make clear that the judge has discretion to order that an
amount less than 10% be withheld from the judgment-debtor’s earnings. In his view, the current
form implies that the court has no discretion to order an amount less than 10% and he pointed out
that there is no such provision in N.J.S.A. 2A:17-56, the statute that authorizes wage withholding
to satisfy civil judgments. In discussing the question, the Committee had before it copies of the
Wage Execution form and the statute. Some members favored the proposal, while others
opposed it. Ultimately the Committee decided to recommend no further action, principally
because both the Notice of Application for Wage Execution and the Execution itself make clear
that the judgment-debtor has a continuing right to object to the execution and request a reduction,
even after the judge has signed the order. Moreover, there simply was no basis to conclude that
the judges who handle these matters are not familiar with the law that governs them.
21
D. Proposed Amendment to R. 6:6-6 - Provision of Notice to Judgment
Creditors of Applications for Post-Judgment Relief From Levies
A member of the Committee complained that judgment-creditors often do not get
adequate notice of applications for relief from levies to be able to appear and protect their
clients’ rights. The attorney suggested that there should be a requirement of 48 hours notice or
that a hearing be held on the judgment-debtor’s application at 3:00 p.m. on the date of
application. This would require an amendment to R. 6:6-6 which governs post-judgment
applications for relief in tenancy actions and to claims of exemption from levy in other Special
Civil Part actions. Because applications brought pursuant to the rule are emergent in nature, the
Committee felt that there should be no time barrier to immediate relief, assuming that the rights
of all parties to the litigation are protected, and decided to refer the matter to the Committee of
Special Civil Part Supervising Judges for further discussion.
22
E. Proposed Amendment to R. 6:7-2(a) – Elimination of Requirement to Show
Good Cause for Issuance of Order to Take Post Judgment Discovery
The Committee considered a request from a member of the Civil Practice Committee for
an amendment to R. 6:7-2(a) that would either remove any "good cause" requirement from the
rule or set forth in the rule that the existence of an unpaid judgment is sufficient "good cause" for
the court to order supplementary proceedings to discover assets that could be used to satisfy a
judgment. The Committee concluded that it is up to the judge to decide on a case by case basis
what set of circumstances constitute good cause to warrant entry of an order for supplementary
proceedings and thus rejected the proposed amendments.
23
F. Proposed Amendments to Rule 6:7-2 and Appendices XI-M and XI-O -
“Shall” vs. “May”
This Committee considered correspondence from one of its mambers and a member of
the Supreme Court Civil Practice Committee on behalf of the New Jersey Creditors Bar
Association, complaining that some judges routinely modify orders to enforce litigant’s rights by
changing the word “shall” to “may,” in reference to the issuance of a warrant for arrest if the
target of a post-judgment information subpoena fails to obey the court’s order. They pointed out
that R. 6:7-2(f) mandates the use of the form of order set forth in Appendix XI-O and that the
form uses the term “shall.” The end result, they said, is the development of local practices and
they proposed the addition of a paragraph (j) to the rule that would make the relaxation rule (R.
1:1-2) inapplicable to R. 6:7-2(d) through (i) and the forms set forth in Appendices XI-M
through XI-Q.
This Committee was advised that the Civil Practice Committee had tentatively approved
proposed amendments to Appendices XI-M (Notice of Motion for Order Enforcing Litigant’s
Rights) and XI-O (Order to Enforce Litigant’s Rights) that would change the word “shall” to
“may” in reference to whether a warrant will issue and attorney’s fees be awarded if the
respondent fails to comply with the order. The Civil Practice Committee was waiting for advice
from this Committee before deciding whether to recommend the changes to the Supreme Court.
This Committee had before it copies of the proposed amendments being considered by the Civil
Practice Committee.
During this Committee’s discussion it was pointed out that while the form of the order set
forth in Appendix XI-O uses the word “shall,” and while use of the form is mandatory under R.
6:7-2(f), there are occasions on which a judge would, in the exercise of his or her discretion,
substitute the word “may” for “shall” as, for example, when the target of the order is known to be
24
an 85-year old with a heart condition. It was thus clear that the rule should not be modified so as
to preclude the court’s ability to relax the rule pursuant to R. 1:1-2. On the other hand, it was
also apparent to the Committee that such a change to the form of the order in every case or on a
regular and routine basis would both (1) weaken the perception of the court’s determination to
compel answers to the questions in the information subpoena and (2) lead to inconsistent
practices from county to county. It should also be clear that the use of the word “shall” in the
prescribed form of the Notice of Motion for Order Enforcing Litigant’s Rights (Appendix XI-M)
simply tells the judgment-debtor what relief the creditor is seeking. The Order to Enforce
Litigant’s Rights (Appendix XI-O) tells the judgment-debtor what ultimately will happen if s/he
continues to defy the subpoena and the court’s order to comply with it. In no way does use of
the word “shall” in the two Appendices impair the discretion of the judge to refuse to sign the
arrest warrant when asked to do so.
One of the members of this Committee, who is a judge, stated that in the past he had
often substituted the word “may” for the imperative “shall,” but stopped the practice after
carefully re-reading the rule and the forms provided for its enforcement in the Appendices to the
Rules, the use of which is mandated by the Supreme Court. Considering the text of R. 6:7-2 and
the implementing Appendices in their entirety, he concluded that the protections built into the
mechanism for the judgment-debtor were so extensive that by the time the arrest warrant is
actually issued it is indeed the last resort to force compliance with the information subpoena and
the court’s order to enforce it. These protections include:
(1) A statement in the required form of the Information Subpoena itself (Appendix XI-L)
warning the judgment-debtor that failure to comply with it “may result in your arrest and
incarceration.”
(2) A requirement in R. 6:7-2(c) that the Information Subpoena be served personally or
simultaneously by regular and certified mail return-receipt-requested.
25
(3) Requirements in R. 6:7-2(e) that the notice of motion to enforce litigant’s rights (a) be in
the form set forth in Appendix XI-M, (b) warn the debtor that s/he may be arrested and held until
s/he has complied with the Information Subpoena, (c) state that a court appearance can be
avoided by compliance with the Information Subpoena and (d) be served either personally or
simultaneously by regular and certified mail return-receipt-requested.
(4) Requirements in R. 6:7-2(f) that the order to enforce litigant’s rights be in the form set
forth in Appendix XI-O, be served personally or simultaneously by regular and certified mail
return-receipt-requested and warn the debtor that upon failure to comply with the Information
Subpoena within 10 days, “the court will issue an arrest warrant.”
(5) Requirements in R. 6:7-2(g) that in order to get an arrest warrant the judgment-creditor
must certify that the debtor has not complied with the order to enforce litigant’s rights, that the
warrant be executed only between the hours of 7:30 a.m. and 3:00 p.m. on a day when court is in
session, that if the debtor was served with the notice of motion and order by mail the warrant
must be executed only at the address to which they were sent and that the debtor be brought
before a judge forthwith and released immediately upon completion of the Information
Subpoena.
For these reasons the Committee member who had originally suggested the modification
to circumscribe the court’s discretion moved to recommend that the rule and forms be left as they
are. The motion was seconded by a representative of Legal Services of New Jersey (LSNJ) and
the motion was adopted by a vote of 19 in favor and one abstention.
It should be noted that the reasoning of the Special Civil Part Practice Committee in
originally proposing this enforcement mechanism is explained in the Committee’s 1992 Report
to the Supreme Court at pages 51 – 59 and 101-122. An excerpt containing those pages is
attached as an appendix to this Report.
26
III. OTHER RECOMMENDATIONS - NONE
27
IV. LEGISLATION - NONE
28
V. MATTERS HELD FOR CONSIDERATION
A. Use of Credit Cards to Pay Fees and Post Deposits
The Committee endorses the idea of permitting the payment of filing fees and posting of
deposits by credit card but recognizes that formulation of the language for the rule change should
await completion of the AOC’s work on this project. Staff informed the Committee that the
Information Technology Office, Office of Management Services and the Civil Practice Division
of the Office of Trial Court Services are already deeply involved in this project.
29
B. “Shotgun” Bank Levies
The Committee discussed the practice of some Special Civil Part Officers using a
“shotgun” approach by serving copies of writs of execution on a number of banks, not knowing
whether the judgment-debtor in fact has an account at any of them. The Committee asked for
advice from the Conference of Civil Division Managers, the Special Civil Part Management
Committee (composed of the Assistant Civil Division Managers responsible for running the
clerks’ offices in the counties) and the Committee of Special Civil Part Supervising Judges as to
the extent of the practice and the problems, if any, that it raises. The Supervising Judges will
discuss the matter at their February meeting and this Committee will then transmit its
recommendations to the Supreme Court in the form of a supplemental report.
30
C. Proposed Amendment to R. 6:7-2(b)(2) - Eliminate Requirement of Serving
Defendant With Information Subpoena Before Serving Banks
A member of the Committee, has proposed an amendment to R. 6:7-2(b)(2) that would
eliminate the requirement, presently in the rule, of serving a judgment debtor with an information
subpoena and getting no response, before the judgment-creditor can serve an information
subpoena on a bank to find out if the debtor has an account there. The Committee will report on
this proposal in its supplemental report to the Supreme Court.
31
VI. CONCLUSION
The members of the Supreme Court Committee on Special Civil Part Practice appreciate
the opportunity to have served the Supreme Court in this capacity.
Respectfully submitted,
Hon. Joseph R. Rosa, J.S.C., Chair
Mary Braunschweiger, Civ. Div. Mgr.
Felipe Chavana, Esq.
I. Mark Cohen, Esq.
Gregory G. Diebold, Esq.
JoAnn Ezze, Asst. Civ. Div. Mgr.
Gerard J. Felt, Esq.
Eric H. Fields, Court Officer
Lloyd Garner, Esq., Asst. Civ. Div. Mgr.
Joanne Gottesman
Linda G. Hampton, Esq.
Hon. John E. Harrington, J.S.C.
Kennon Jenkins
Hon. Fred H. Kumpf, J.S.C.
Adolfo L. Lopez, Esq.
David G. McMillin, Esq.
Jonathan Mehl, Esq.
Raymond F. Meisenbacher, Jr., Esq.
Hon. David W. Morgan, J.S.C.
Anshu Pathak, Esq.
W. Peter Ragan, Sr., Esq.
Daniel I. Rubin, Esq.
Stephen E. Smith, Esq.
Hon. Jerome M. St. John, J.S.C.
William A. Thompon, II, Esq.
Andrew R. Wolf, Esq.
Robert J. Piscopo, AOC Staff
Robert D. Pitt, Esq., AOC Staff
APPENDIX – Excerpts From 1992 Report of the Special Civil Part
Practice Committee to the Supreme Court (Pages 51-59 and 101-122)
32
51
M. Proposed Amendments to R. 6:7-2--Administration of
Oath During Post-Judgment Discovery Proceedings;
Enforcement of Discovery Orders and Information
Subpoenas
The Committee proposes two kinds of amendments to
R. 6:7-2, which deals with post-judgment orders for discovery
and information subpoenas. The first is a simple amendment to
R. 6:7-2(a) that will make clear that the attorney for the
judgment-creditor can administer the oath to the judgmentdebtor
who has been ordered to appear for post-judgment
discovery. The second category of amendments deals with the
enforcement of discovery orders and information subpoenas,
which the Committee has found to be increasingly troublesome.
Enforcement problems may be increasing because more creditors,
including those who proceed pro se, are using post-judgment
discovery since the information subpoena became available in
1990. Whatever the cause, the Committee proposes a comprehensive
overhaul and codification of the enforcement procedures.
Rule 6:7-2(c) provides, in pertinent part, that "...the
failure to comply with an information subpoena shall be
treated as a failure to comply with an order for discovery
entered in accordance with paragraph (a) of this rule." The
question then arises as to whether the judgment creditor
should seek to enforce litigant's rights pursuant to R. 1:10-5
by way of order to show cause or motion. Papers submitted to
52
the Committee by one attorney, who is a member, indicated that
he uses the motion procedure. The Special Civil Part Clerk's
office in Atlantic County, on the other hand, supplies a form
petition for an order to show cause, together with a form of
order, to the litigant whose information subpoena has been
unanswered. In a letter and memorandum to the Committee,
another member contended that the proper procedure is by way
of motion. Others use the order to show cause.
The Committee concluded that either procedure is permitted
by the applicable court rule, Supreme Court opinion and
according to other published authorities on the subject.
Rule 1:6-2 states that "[a]n application to the court for an
order shall be by motion, or in special cases, by order to
show cause." The Supreme Court stated, in N.J. Dept. of
Health v. Roselle, 34 N.J. 331, 343 (1961), that either
procedure can be used by a litigant seeking supplemental
relief in a civil matter. The same conclusion is reached in
4A N.J. Practice (Walzer, Civil Practice Forms) 4th ed.,
1991) § 84.2 at 438. The skills training course materials
distributed to new attorneys in 1976-77 advocated use of the
order to show cause procedure. See: Nudelman and Rosenberg,
Collection Practice in New Jersey (I.C.L.E., 1976) at pp.
31-35.
The real question, if either procedure is permissible, is
which is best for accomplishing the purpose of the discovery
53
order and information subpoena while promoting the efficient
handling of the applications for supplemental relief. Another
question is the type of notice to the debtor, mail or personal
service, that the court will require before issuing an arrest
warrant; most judges require personal service so as to ensure
that notice and an opportunity to be heard are given before a
judgment-debtor is deprived of liberty for however brief a
period of time.
These questions arise in a context of one year's experience
with the information subpoena. One attorney reported
that of 100 cases in which he used the subpoena, 3 defendants
answered the questions, 4 defendants moved and 93 made no
response. The 93 cases were all brought to the court's
attention by orders to show cause and this meant that a judge
had to read the papers and sign the order in each and every
case. The volume raises questions regarding the effectiveness
of the information subpoena and the administrative burden for
the court. The Committee concluded that certain steps could
be taken to increase the likelihood of compliance with the
information subpoena.
First, the Committee decided that the information subpoena
itself, contained in Appendix XI-K to the Rules, should
contain words warning the debtor that failure to comply may
result in the debtor's arrest and incarceration. The warning
should be placed at the top of the subpoena in bold letters.
54
The form of the subpoena, as amended, is set forth in Section
III of this Report.
Second, the Committee decided that R. 6:7-2 should be
amended, by adding a new subparagraph (d), to specify that the
motion procedure, rather than the order to show cause, should
be used when a debtor fails to answer the subpoena and the
creditor seeks to enforce litigant's rights. The motion procedure
should also be used to enforce discovery orders in the
Committee's view. This will avoid the court's involvement at
the earliest stage of the enforcement procedure and defer such
involvement to a point, hopefully, after the debtor has
complied with the subpoena or discovery order and the involvement
is no longer required. The motion procedure in this
context requires a return day and this will be an exception to
the general motion practice under R. 6:3-3(c). The Committee
felt the motion should be returnable no sooner than 10 days
following service and filing so that there is adequate time
for the debtor to comply with the subpoena or order in
response to the notice of motion. Note that in the case of an
information subpoena, the debtor can avoid a court appearance
by furnishing answers to the subpoena at least 3 days before
the return date.
Third, the Committee believes that the current confusion
surrounding the enforcement procedure can be attenuated by
specifying in the rule the contents of the notice of motion,
55
the resulting order and the eventual arrest warrant and by
prescribing mandatory forms for each in the Appendices to the
Rules. Particularly, the new subparagraph (d) requires the
notice of motion to advise the debtor that if she or he fails
to appear on the return date of the motion, an order for his
or her arrest will be sought, together with an order to pay
the creditor's attorney fees in connection with the motion to
enforce litigant's rights. A new subparagraph (e) prescribes
the contents of an order, to be entered in the event that the
debtor fails to appear on the return date, for the debtor's
arrest, without further notice, if he or she fails to comply
with the discovery order or information subpoena within 10
days. A new subparagraph (f) provides for the issuance of an
arrest warrant in the event of further non-compliance, which
is to be executed between the hours of 7:30 a.m. and 3:00 p.m.
on a court day. For good cause shown, the warrant may be
executed at another time subject to such terms as the court
directs. Further, to ensure due process, if the motion and
order for arrest were served by mail, the arrest warrant can
be executed only at the address to which they were sent.
The proposed rule amendments follow. The mandatory forms
are set forth in Section III of this Report.
56
6:7-2.Orders for Discovery; Information Subpoenas
(a) Order for Discovery. The court may, upon the filing
by the judgment creditor or a successor in interest (if that
interest appears of record) of a petition verified by the
judgment creditor or the creditor's agent or attorney stating
the amount due on the judgment, make an order, upon good cause
shown, requiring any person who may possess information
concerning property of the judgment debtor to appear before
the attorney for the judgment creditor or any other person
authorized to administer an oath and make discovery under oath
concerning said property at a time and place therein specified.
The location specified shall be in the county where the
judgment debtor lives or works.
No more than one appearance of any such person may be
required without further court order. The time and place
specified in the order shall not be changed without the
written consent of the person to be deposed or upon further
order of the court.
(b) ...no change
(c) ...no change
(d) Enforcement by Motion. Proceedings to enforce
litigant's rights pursuant to R. 1:10-5, when a judgmentdebtor
fails to obey an order for discovery or an information
subpoena, shall be commenced by notice of motion supported by
affidavit or certification. The notice of motion and certifi
57
cation shall be in the form set forth in Appendices XI-L and
M to these Rules. The notice of motion shall contain a return
date and shall be served on the judgment-debtor and filed with
the clerk of the court not later than 10 days before the time
specified for the return date. The moving papers shall be
served on the judgment-debtor either in person or simultaneously
by regular and certified mail, return receipt
requested. The notice of motion shall state that the relief
sought will include an order:
(1) adjudicating that the judgment-debtor has violated
the litigant's rights of the judgment-creditor by failing to
comply with the order for discovery or information subpoena,
(2) compelling the judgment-debtor to immediately
furnish answers as required by the order for discovery or
information subpoena,
(3) directing that if the judgment-debtor fails to
appear in court on the return date or to furnish the required
answers, he or she shall be arrested and confined to the
county jail until he or she has complied with the order for
discovery or information subpoena,
(4) directing the judgment-debtor, if he or she fails to
appear in court on the return date, to pay the judgmentcreditor's
attorney fees, if any, in connection with the
motion to enforce litigant's rights, and
(5) granting such other relief as may be appropriate.
58
The notice of motion shall also state, in the case of an
information subpoena, that the court appearance may be avoided
by furnishing to the judgment-creditor written answers to the
information subpoena and questionnaire at least 3 days before
the return date.
(e) Order for Arrest. If the judgment-debtor has failed
to appear in court on the return date and the court enters an
order for his or her arrest, it shall be in the form set forth
in Appendix XI-N to these Rules and shall state that upon the
judgment-debtor's failure, within 10 days of the certified
date of mailing or personal service of the order, to comply
with the information subpoena or discovery order, the court
will issue a warrant for his or her arrest. The judgmentcreditor
shall serve a copy of the signed order upon the
judgment-debtor either personally or by mailing it simultaneously
by regular and certified mail, return receipt
requested. The date of mailing or personal service shall be
certified on the order.
(f) Warrant for Arrest. Upon the judgment-creditor's
certification, in the form set forth in Appendix XI-O to these
Rules, that a copy of the signed order for arrest to enforce
litigant's rights has been served upon the judgment-debtor as
provided in this rule, that 10 days have elapsed and that
there has been no compliance with the information subpoena or
discovery order, the court may issue an arrest warrant. The
59
warrant shall be in the form set forth in Appendix XI-P to
these Rules and, except for good cause shown and upon such
other terms as the court may direct, shall be executed by a
Special Civil Part Officer or Sheriff only between the hours
of 7:30 a.m. and 3:00 p.m. on a day when the court is in
session. If the notice of motion and order for arrest were
served on the judgment-debtor by mail, the warrant may be
executed only at the address to which they were sent. In all
cases the arrested judgment-debtor shall promptly be brought
before a judge of the Superior Court and released upon
compliance with the order for discovery or information
subpoena.
Note: Source -- R.R. 7:11-3(a)(b), 7:11-4. Paragraph
(a) amended June 29, 1973 to be effective September 10, 1973;
paragraph (a) amended July 17, 1975 to be effective September
8, 1975; amended July 21, 1980 to be effective September
8, 1980; caption amended, paragraph (a) caption and text
amended, paragraph (b) adopted and former paragraph (b)
amended and redesignated as paragraph (c) June 29, 1990 to be
effective September 4, 1990; paragraph (a) amended and
paragraphs (d)(e) and (f) adopted to be
effective .
101
F. Proposed Revision of Appendix XI-K--Information
Subpoena and Written Questions
The Committee proposes in Section I. M. of this Report to
amend R. 6:7-2 so as to improve the procedures for enforcing
discovery orders and information subpoenas. This effort also
involves the revision of the information subpoena itself so as
to advise judgment-debtors in large print at the top of the
form that failure to comply with the subpoena may result in
the debtor's arrest and incarceration. At the same time, the
Committee perceives a two-fold need to revise the written
questions attached to the subpoena.
First, the questions addressed to an individual judgmentdebtor
need to cover personalty in greater detail if there is
a possibility of later seeking to enforce a lien against
realty. Two New Jersey bankruptcy cases were brought to the
attention of the Committee in which levies on real estate were
successfully attacked because the interrogatories served on
the debtor did not inquire as to the debtor's cash on hand and
ownership of furniture, appliances and other household goods.
See Kellman v. Palese (In re Italiano), 66 Bankr. 468 (Bankr.
D. N.J. 1986) and Genz v. Hallmark Cards, Inc. (In re
Silverman), 6 Bankr. 991, 995-96 (D. N. J. 1980). The
additional questions proposed by the Committee would require
the judgment-debtor to list cash on hand and details regarding
other personal property, but only if the debtor owns real
102
estate and has cash and other personalty worth more than the
statutory exemption of $1,000.
Second, the present questions do not adequately inquire
about the finances and assets of judgment-debtors who happen
to be corporations, partnerships or other business entities.
The Committee proposes a set of 18 questions for this purpose,
which will be denominated "Questions for Business Entity."
The original questions, augmented as explained above, will be
called "Questions for Individuals." The judgment-creditor
will select the set that is appropriate for the particular
case.
The revised information subpoena, questions for
individual and questions for business entity follow. Together
they will comprise Appendix XI-K to the Rules.
103
APPENDIX XI-K
INFORMATION SUBPOENA AND WRITTEN QUESTIONS
IMPORTANT NOTICE - PLEASE READ CAREFULLY
FAILURE TO COMPLY WITH THIS INFORMATION SUBPOENA
MAY RESULT IN YOUR ARREST AND INCARCERATION
NAME:
ADDRESS:
TELEPHONE NO.:
Attorneys for:
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: SPECIAL CIVIL PART
Plaintiff, COUNTY
-vs- DOCKET NO.
Defendant, CIVIL ACTION
INFORMATION SUBPOENA
THE STATE OF NEW JERSEY, to:
Judgment has been entered against you in the Superior Court of
New Jersey, Law Division, Special Civil Part, County,
on , 19 , in the amount of $ plus costs,
of which $ together with interest from , 19 ,
remains due and unpaid.
Attached to this Information Subpoena is a list of questions
that court rules require you to answer within 14 days from the date
you receive this subpoena. If you do not answer the attached
questions within the time required, the opposing party may ask the
court to conduct a hearing in order to determine if you should be
held in contempt. You will be compelled to appear at the hearing
and explain your reasons for your failure to answer.
If this judgment has resulted from a default, you may have the
right to have this default judgment vacated by making an
appropriate motion to the court. Contact an attorney or the clerk
of the court for information on making such a motion. Even if you
dispute the judgment you must answer all of the attached questions.
104
You must answer each question giving complete answers,
attaching additional pages if necessary. False or misleading
answers may subject you to punishment by the court. However, you
need not provide information concerning the income and assets of
others living in your household unless you have a financial
interest in the assets or income. Be sure to sign and date your
answers and return them to the address in the upper left hand
corner within 14 days.
Dated: , 19
_______________________________
Attorney for Clerk
105
QUESTIONS FOR INDIVIDUALS
1. Full name ____________________________________________________
2. Address ______________________________________________________
3. Birthdate ____________________________________________________
4. Social Security # ____________________________________________
5. Driver's license # and expiration date _______________________
______________________________________________________________
6. Telephone # __________________________________________________
7. Full name and address of your employer _______________________
______________________________________________________________
(a) Your weekly salary: Gross Net __________
(b) If not presently employed, name and address of last
employer. _______________________________________________
_________________________________________________________
8. Is there currently a wage execution on your salary?
Yes No _____
9. List the names, addresses and account numbers of all bank
accounts on which your name appears.
10. If you receive money from any of the following sources, list
the amount, how often, and the name and address of the source:
Type Amount & Frequency Name & Address of Sources
Alimony
Loan Payments
Rental Income
Pensions
Bank Interest
Stock Dividends
106
11. Do you receive Social Security benefits?
Yes No _____
12. Do you own the property where you reside?
Yes No If yes, state the following:
(a) Name of the owner or owners _____________________________
(b) Date property was purchased _____________________________
(c) Purchase price __________________________________________
(d) Name and address of mortgage holder __________________________
______________________________________________________________
(e)Balance due on mortgage ________________________________________
13.Do you own any other real estate?
Yes No If yes, state the following
for each property:
(a) Address of property _____________________________________
(b) Date property was purchased _____________________________
(c) Purchase price __________________________________________
(d) Name and address of all owners________________________________
______________________________________________________________
(e) Name and address of mortgage holder __________________________
______________________________________________________________
(f) Balance due on mortgage ______________________________________
______________________________________________________________
(g) Names and address of all tenants and monthly rental paid
by each tenant _______________________________________________
______________________________________________________________
107
14. If you answered "yes" to either question 12 or 13, does the
present value of your personal property, which includes
automobiles, furniture, appliances, stocks, bonds, and cash on
hand, exceed $1,000?
Yes No If the answer is "yes,"
you must itemize all
personal property owned by
you.
Cash on hand: $ _______
Other personal property: (Set forth make, model and serial
number. If financed, give name and address of party to whom
payments are made).
If Financed
Date Purchase Balance Still Present
Item Purchased Price Due Value
15. Do you own a motor vehicle?
Yes No If yes, state the
following for each vehicle owned:
(a) Make, model and year of motor vehicle
(b) If there is a lien on the vehicle, state the name and
address of the lienholder and the amount due to the
lienholder
(c) License plate #
(d) Vehicle identification #
16. Do you own a business?
Yes No If Yes, state the
following:
108
(a) Name and address of the business ________________________
_________________________________________________________
(b) Is the business a Corporation , sole proprietorship
_____ or partnership ?
(c) The name and address of all stockholders, officers and/or
partners ________________________________________________
_________________________________________________________
(d) The amount of income received by you from the business
during the last twelve months ___________________________
_________________________________________________________
17. Set forth all other judgments that you are aware of that have
been entered against you and include:
Creditor's Creditor's Amount Name of
Name Attorney Due Court Docket #
I hereby certify that the foregoing statements made by me are
true. I am aware that if any of the foregoing statements made by
me are willfully false, I am subject to punishment.
Date: ____________________________________
109
QUESTIONS FOR BUSINESS ENTITY
1. Name of business including all trade names. __________________
______________________________________________________________
2. Addresses of all business locations. _________________________
______________________________________________________________
3. If the judgment-debtor is a corporation, the names and
addresses of all stockholders, officers and directors.
______________________________________________________________
______________________________________________________________
______________________________________________________________
4. If a partnership, list the names and addresses of all
partners.
______________________________________________________________
______________________________________________________________
______________________________________________________________
5. If a limited partnership, list the names and addresses of all
general partners.
______________________________________________________________
______________________________________________________________
______________________________________________________________
6. Set forth in detail the name, address and telephone number of
all businesses in which the principals of the judgment-debtor
now have an interest and set forth the nature of the interest.
______________________________________________________________
______________________________________________________________
7. For all bank accounts of the judgment-debtor business entity,
list the name of the bank, the bank's address, the account
number and the name in which the account is held.
______________________________________________________________
______________________________________________________________
110
8. Specifically state the present location of all books and
records of the business, including checkbooks. _______________
______________________________________________________________
9. State the name and address of the person, persons, or entities
who prepare, maintain and/or control the business records and
checkbooks. __________________________________________________
______________________________________________________________
10. List all physical assets of the business and their location.
If any asset is subject to a lien, state the name and address
of the lienholder and the amount due on the lien.
______________________________________________________________
______________________________________________________________
______________________________________________________________
11. Does the business own any real estate? Yes______ No ______
If yes, state the following for each property:
(a) Name(s) in which property is owned ______________________
(b) Address of property _____________________________________
(c) Date property was purchased _____________________________
(d) Purchase price __________________________________________
(e) Name and address of mortgage holder ____________________
________________________________________________________
(f) Balance due on mortgage _________________________________
(g) The names and addresses of all tenants and monthly
rentals paid by each tenant.
NAME AND ADDRESS OF TENANT MONTHLY RENTAL
111
12. List all motor vehicles owned by the business, stating the
following for each vehicle:
(a) Make, model and year ___________________________________
________________________________________________________
(b) License plate number ___________________________________
(c) Vehicle identification number __________________________
(d) If there is a lien on the vehicle, the name and address
of the lienholder and the amount due on the lien
________________________________________________________
________________________________________________________
13. List all accounts receivable due to the business, stating the
name, address and amount due on each receivable.
NAME AND ADDRESS AMOUNT DUE
14. For any transfer of business assets that has occurred within
six months from the date of this subpoena, specifically
identify:
(a) The nature of the asset _________________________________
_________________________________________________________
(b) The date of transfer ____________________________________
(c) Name and address of the person to whom the asset was
transferred _____________________________________________
_________________________________________________________
(d) The consideration paid for the asset and the form in
which it was paid (check, cash, etc.) ___________________
_________________________________________________________
112
(e) Explain in detail what happened to the consideration paid
for the asset ___________________________________________
_______________________________________________________
15. If the business is alleged to be no longer active, set forth:
(a) The date of cessation ___________________________________
(b) All assets as of the date of cessation __________________
_________________________________________________________
(c) The present location of those assets ____________________
_________________________________________________________
(d) If the assets were sold or transferred, set forth:
(1) The nature of the assets __________________________
___________________________________________________
(2) Date of transfer __________________________________
(3) Name and address of the person to whom the assets
were transferred __________________________________
___________________________________________________
(4 )The consideration paid for the assets and the form
in which it was paid ______________________________
___________________________________________________
(5) Explain in detail what happened to the consideration
paid for the assets _________________________
___________________________________________________
16. Set forth all other judgments that you are aware of that have
been entered against the business and include the following:
Creditor's Creditor's Amount Name of Docket
Name Attorney Due Court Number
113
17. For all litigation in which the business is presently
involved, state:
(a) Date litigation commenced _______________________________
(b) Name of party who started the litigation ________________
_________________________________________________________
(c) Nature of the action ____________________________________
_________________________________________________________
(d) Names of all parties and the names, addresses and telephone
numbers of their attorneys ________________________
_________________________________________________________
_________________________________________________________
(e) Trial date ______________________________________________
(f) Status of case __________________________________________
(g) Name of the court and docket number _____________________
_________________________________________________________
18. State the name, address and position of the person answering
these questions. _____________________________________________
______________________________________________________________
I hereby certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
willfully false, I am subject to punishment.
Date: __________________ ____________________________________
114
G. Proposed Appendices XI-L, M, N, O, P--Mandatory
Forms for Enforcing Discovery Orders and Information
Subpoenas
As explained in Sections I. M. and III. F. of this
Report, the Committee proposes to amend R. 6:7-2 and revise
the information subpoena so as to improve the procedures for
enforcing both the subpoena and orders for discovery. The
Committee is recommending that a motion procedure be
prescribed for this purpose, rather than an order to show
cause procedure, and the proposed amendments to R. 6:7-2 refer
to forms which the Committee feels should be mandatory. The
amendments to R. 6:7-2 and the forms are discussed in detail
in Section I. M. of this Report. The forms would be set forth
in the Appendices to the Rules as follows:
Appendix XI-L Notice of Motion for Order Enforcing
Litigant's Rights
Appendix XI-M Certification In Support of Motion for
Order Enforcing Litigants Rights
Appendix XI-N Order for Arrest
Appendix XI-O Certification In Support of Application
for Arrest Warrant
Appendix XI-P Warrant for Arrest
The proposed appendices follow.
115
APPENDIX XI-L
NOTICE OF MOTION FOR ORDER ENFORCING LITIGANT'S RIGHTS
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
Notice of Motion for Order
, Defendant Enforcing Litigant's Rights
PLEASE TAKE NOTICE that on ____________, 19__ at ______ __.m.,
I will apply to the above-named court, located at ________________
________________________________________, New Jersey, for an Order:
(1) Adjudicating that you have violated the litigant's rights of
the plaintiff by failure to comply with the (check one)
order for discovery, information subpoena served upon you;
(2) Compelling you to immediately furnish answers as required by
the (check one) order for discovery, information subpoena;
(3) Directing that, if you fail to appear in court on the date
written above, you shall be arrested by an Officer of the
Special Civil Part or the Sheriff and confined in the county
jail until you comply with the (check one) order for
discovery, information subpoena;
(4) Directing that, if you fail to appear in court on the date
written above, you shall pay the plaintiff's attorney fees in
connection with this motion;
(5) Granting such other relief as may be appropriate.
If you have been served with an information subpoena, you may avoid
having to appear in court by sending written answers to the questions
attached to the information subpoena to me no later than
three (3) days before the court date.
I will rely on the certification attached hereto.
Date: _______________________ __________________________
Attorney for Plaintiff or
Plaintiff, Pro Se
116
APPENDIX XI-M
CERTIFICATION IN SUPPORT OF MOTION FOR ORDER
ENFORCING LITIGANT'S RIGHTS
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
Certification In Support of Motion
, Defendant for Order Enforcing Litigant's Rights
The following certification is made in support of plaintiff's
motion for an order enforcing litigant's rights:
1. I am the plaintiff or plaintiff's attorney in this matter.
2. On _____________, 19__, plaintiff obtained a judgment against
the defendant ___________________________________________ for
$ _______________ damages, plus costs.
3. (Check applicable box below)
a. On _______________, 19___, an Order was entered by
this Court ordering defendant _____________________
to appear at ______________________________________
on _______________, 19___, at ______ __.m. and make
discovery on oath as to the defendant's property and
on _______________, 19___, a copy of the Order was
served upon ___________________________________
(check one) personally, by sending it simultaneously
by ordinary and certified mail, return
receipt requested to _____________________'s last
known address.
b. On _______________, 19___, I served an information
subpoena and attached questions as permitted by
Court Rules on the defendant _____________________
(check one) personally, by sending it simultaneously
by regular and certified mail, return
receipt requested to defendant's last known address.
117
4. _______________________ has failed to comply with (check one)
the order, the information subpoena.
5. I request that the Court enter an order enforcing litigant's
rights.
6. On _______________, 19___, I served copies of this motion and
certification on ___________________ (check one) personally,
by sending them simultaneously by regular and certified
mail, return receipt requested.
I certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
willfully false, I am subject to punishment.
Date: _________________ _______________________________
118
APPENDIX XI-N
ORDER FOR ARREST
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
ORDER FOR ARREST
, Defendant
This matter being opened to the court by ____________________
on plaintiff's motion for an order enforcing litigant's rights and
the defendant having failed to appear on the return date and having
failed to comply with the (check one) order for discovery previously
entered in this case, information subpoena;
It is on the ____________ day of ____________, 19___, ORDERED
and adjudged:
1. Defendant _______________ has violated plaintiff's rights as a
litigant;
2. Defendant _______________ shall immediately furnish answers as
required by the (check one) order for discovery, information
subpoena
3. If defendant _______________ fails to comply with the (check
one) order for discovery, information subpoena within ten
(10) days of the certified date of personal service or mailing
of this order, a warrant for the defendant's arrest shall
issue out of this Court without further notice;
____________________________________
, J.S.C.
PROOF OF SERVICE
119
On ____________, 19___, I served a true copy of this Order on
defendant _______________ (check one) personally, by sending
it simultaneously by regular and certified mail, return receipt
requested to:
(Set forth address) _______________________________________________
________________________________________________
I certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
wilfully false, I am subject to punishment.
Date: _______________ ____________________________________
120
APPENDIX XI-O
CERTIFICATION IN SUPPORT OF APPLICATION
FOR ARREST WARRANT
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
COUNTY
Telephone No.
Docket No.
, Plaintiff CIVIL ACTION
Certification in Support of
v. Application for Arrest Warrant
, Defendant
The following certification is made in support of plaintiff's
application for an arrest warrant:
1. I am the plaintiff or plaintiff's attorney in this matter.
2. On _____________, 19__, plaintiff obtained a judgment against
the defendant ___________________________________________ for
$ _______________ damages, plus costs.
3. (Check applicable box below)
a. On _______________, 19___, an Order was entered by
this Court ordering defendant _____________________
to appear at ______________________________________
on _______________, 19___, at ______ __.m. and make
discovery on oath as to the defendant's property and
on _______________, 19___, a copy of the Order was
served upon ___________________________________
(check one) personally, by sending it simultaneously
by ordinary and certified mail, return
receipt requested to _____________________'s last
known address.
b. On _______________, 19___, I served an information
subpoena and attached questions as permitted by
Court Rules on the defendant _____________________
(check one) personally, by sending it simultaneously
by regular and certified mail, return
receipt requested to defendant's last known address.
121
4. _______________________ has failed to comply with (check one)
the order, the information subpoena.
5. On , 19 , the Court entered an Order for Arrest
when defendant failed to appear on the return day of my motion
for order enforcing litigant's rights.
6. On , 19 , I served a true copy of the Order for
Arrest on (check one) personally, by
sending it simultaneously by regular and certified mail,
return receipt requested.
7. Ten days have passed since I served a copy of the Order for
Arrest on defendant and defendant has not complied with the
(check one) information subpoena, order for discovery.
8. I request that the Court issue a warrant for the arrest of
defendant.
I certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
willfully false, I am subject to punishment.
Date: ____________________________________
122
APPENDIX XI-P
WARRANT FOR ARREST
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
WARRANT FOR ARREST
, Defendant
TO: A Court Officer of the Special Civil Part or the Sheriff of
________________________ County
You are hereby commanded to arrest _________________________,
at (check one) any location, the address set forth in the
annexed order for arrest between the hours of 7:30 a.m. and
3:00 p.m. on a day when the court is in session, and bring him or
her forthwith before a Judge of the Superior Court to await the
further order of the Court in this matter.
Date: ________________ WITNESS: _______________________________
Judge of the Superior Court
_______________________________
Clerk of the Special Civil Part
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