SENATE, No. 2184

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED JULY 1, 2010

 


 

Sponsored by:

Senator  GERALD CARDINALE

District 39 (Bergen)

Senator  NICHOLAS J. SACCO

District 32 (Bergen and Hudson)

 

 

 

 

SYNOPSIS

     Establishes judicial pre-litigation screening panels for certain actions.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act establishing judicial pre-litigation screening panels in certain types of actions, amending P.L.1988, c.46 and supplementing Title 2A of the New Jersey Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    (New section) The Legislature finds and declares that:

     a.     Frivolous claims are often dismissed or settled after a considerable amount of time and money have been expended in defending them;

     b.    Frivolous lawsuits against public entities are especially egregious since the public entities are forced into expending a great deal of their limited resources in defending such claims;

     c.     The time and money expended on these claims usually results in higher insurance premiums for municipalities with the costs ultimately being passed on to homeowners by means of higher property taxes;

     d.    It is in the public interest to provide procedures for timely resolution of frivolous claims against public entities which overburden our limited judicial resources and to enhance the current sanctions against those attorneys who file such lawsuits by implementing these procedures in order to address this issue; and

     e.     Therefore, it is necessary and appropriate for the State to take prompt action in stemming the rise of frivolous lawsuits brought against public entities by providing an effective dispute resolution mechanism early in the process wherein certain lawsuits which may be frivolous can be diverted to judicial pre-litigation screening panels composed of retired Justices and judges who would hear arguments, review evidence and identify and dispense of those claims which may be frivolous as early in the process as possible.

 

     2.    (New section) a. There shall be established judicial pre-litigation screening panels for certain actions, in accordance with Rules of Court adopted by the Supreme Court of New Jersey, from a list compiled by the Chief Justice, to be comprised of retired Justices and Superior Court judges to be recalled by the Court for temporary service. Upon such recall the retired Justice or judge shall have all the powers of a Justice or judge of that court to which he is assigned and shall be paid a per diem allowance fixed by the Supreme Court in accordance with its rules, provided however that in no event shall he receive a salary which together with his pension or retirement allowance exceeds the current salary of a Justice or judge of the court from which he retired.  In addition, the recalled Justice or judge shall be reimbursed for reasonable expenses actually incurred by him in connection with his assignment and shall be provided with such facilities as may be required in the performance of his duties.  Such per diem compensation and expenses shall be paid by the State.

     b.    The Chief Justice of the Supreme Court shall choose the chair of the panel.

     c.     Judicial pre-litigation screening panels shall review any cause of action against a public entity to determine whether the cause of action is frivolous.

     d.    The panel may, at its initiative or at the request of a public entity, issue subpoenas for attendance of witnesses and the production of books, records, documents and other evidence.

 

     3.    (New section) a. Any cause of action against a public entity may be referred to a judicial pre-litigation screening panel 30 days after the date of filing of the answer to the complaint.

     b.    Pursuant to P.L.1988, c.46 (C.2A:15-59), the panel may issue a finding on the basis of the pleadings, discovery or the evidence presented that the action was commenced or continued in bad faith, solely for the purpose of harassment, delay or malicious injury and that the complaint was frivolous.  In making its determination, the panel shall consider the pleadings, supporting documents and opposing affidavits stating the facts upon which the liability or defense is based.

     c.     In addition to the relief authorized by P.L.1988, c.46 (C.2A:15-59.1), a panel may, in accordance with the court rules, impose sanctions against an attorney representing a party in the action if it finds that the action was commenced or continued in bad faith, solely for the purpose of harassment, delay or malicious injury.  The sanctions may consist of an order to pay a civil penalty or an order directing the party to pay all or some of the reasonable attorneys’ fee and other expenses incurred.

     d.    After a public entity receives notice of the decision, the public entity may file a summary action with the court for an order confirming the decision, at which time the court shall issue a confirming order. The court may confirm, modify or vacate the decision of the panel.  Upon granting an order confirming, vacating, or correcting the order, the court shall enter a judgment in conformity with the order.  The judgment may be recorded, docketed, and enforced as any other judgment in a civil action.

 

     4.    Section 1 of P.L.1988, c.46 (C.2A:15-59.1) is amended to read as follows:

     1.    a.  (1)  A party who prevails in a civil action, either as plaintiff or defendant, against any other party may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim or defense of the nonprevailing person was frivolous.

     (2)   When a public entity is required or authorized by law to provide for the defense of a present or former employee, the public entity may be awarded all reasonable litigation costs and reasonable attorney fees if the individual for whom the defense was provided is the prevailing party in a civil action, and if there is a judicial determination by the judge or a judicial pre-litigation screening panel at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim, or defense of the nonprevailing party was frivolous.

     b.    In order to find that a complaint, counterclaim, cross-claim or defense of the nonprevailing party was frivolous, the judge or a judicial pre-litigation screening panel shall find on the basis of the pleadings, discovery, or the evidence presented that either:

     (1)   The complaint, counterclaim, cross-claim or defense was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or

     (2)   The nonprevailing party knew, or should have known, that the complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

     c.     A party or public entity seeking an award under this section or a public entity seeking an award pursuant to P.L.   , c.    (C.    )(pending before the Legislature as sections 1 through 2 of this bill) shall make application to the court or a judicial pre-litigation screening panel which heard the matter. The application shall be supported by an affidavit stating in detail:

     (1)   The nature of the services rendered, the responsibility assumed, the results obtained, the amount of time spent by the attorney, any particular novelty or difficulty, the time spent and services rendered by secretaries and staff, other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, an itemization of the disbursements for which reimbursement is sought, and any other factors relevant in evaluating fees and costs; and

     (2)   How much has been paid to the attorney and what provision, if any, has been made for the payment of these fees in the future.

     d.    The judge or the judicial pre-litigation screening panel in a case involving a public entity may, in accordance with court rules, impose sanctions against an attorney and the party bringing the action if it finds that the attorney has unreasonably extended any proceeding in the action involving a public entity.  The sanction may consist of an order to pay a penalty into court or an order directing the party to pay all or some of the reasonable attorneys’ fee and other expenses incurred.

(cf: P.L.1995,c.13, s.1)

     5.    This act shall take effect immediately and shall apply to any civil action against a public entity filed on or after the effective date.

 

 

STATEMENT

 

     This bill establishes judicial pre-litigation screening panels to determine whether certain causes of action against public entities are frivolous in an expeditious manner. This bill expands the current statutory provisions concerning frivolous lawsuits and codifies certain court rules concerning frivolous action sanctions with regard to cases involving public entities.

     Frivolous claims are often dismissed or settled after a considerable amount of time and money has been expended in defending them.  Such lawsuits against public entities are especially egregious since the public entities are forced into expending a great deal of their limited resources in defending such claims. It is the sponsor’s intent to provide procedures for timely resolution of such frivolous claims against public entities.

     Under the provisions of the bill, judicial pre-litigation screening panels would be established from a list compiled by the Chief Justice.  The panel would be comprised of retired Justices and Superior Court judges who would be recalled by the Court for temporary service. The Justice or judges would be paid a per diem allowance fixed by the Court, provided however that in no event could the judge receive a salary which together with his pension or retirement allowance exceeds the current salary of a judge of the court from which he retired.  In addition, the recalled judge would be reimbursed for reasonable expenses actually incurred by him in connection with his assignment and would be provided with such facilities as may be required in the performance of his duties. The bill provides that the chair of the panel would be chosen by the Chief Justice.

     The panels would be authorized to review any cause of action against a public entity to determine whether the cause of action is frivolous.  The panel may, at its initiative or at the request of a public entity, issue subpoenas for attendance of witnesses and the production of books, records, documents and other evidence.

     Any cause of action against a public entity may be referred to a judicial pre-litigation screening panel 30 days after the date of filing of the answer to the complaint.

     The panel may issue a finding on the basis of the pleadings, discovery or the evidence presented that the action was commenced or continued in bad faith, solely for the purpose of harassment, delay or malicious injury and that the complaint was frivolous in accordance with the frivolous lawsuit statute, N.J.S.A.2A:15-59.1. In making its determination, the panel would consider the pleadings, supporting documents and opposing affidavits stating the facts upon which the liability or defense is based.

     After a public entity receives notice of the decision, the party or public entity may file a summary action with the court for an order confirming the decision, at which time the court would issue a confirming order. The court may confirm, modify or vacate the decision of the panel.  Upon granting an order confirming, vacating, or correcting the order, the court would enter a judgment in conformity with the order.  The judgment may be recorded, docketed, and enforced as any other judgment in a civil action.  In addition, the bill would authorize the panel to impose sanctions against the attorney if it finds that the attorney has unreasonably extended any proceeding in the action involving a public entity.  The sanctions may consist of an order to pay a civil penalty or an order directing the party to pay all or some of the reasonable attorneys’ fee and other expenses incurred.

     The sponsor is aware that the frivolous lawsuit statute N.J.S.A.2A:15-59.1 and current Court Rule R.1:4-8 now authorize the court to provide damages and sanctions against individuals and attorneys who file frivolous lawsuits.  However, it is the sponsor’s belief that by codifying the court rule with respect to lawsuits against public entities this bill enhances the current procedures and establishes an effective dispute resolution mechanism early in the process wherein frivolous lawsuits can be dispensed with in a consistent and uniform manner which ensures fairness and justice and fosters comity and respect between the branches of government.