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New Jersey Practice
Rutgers University, Newark School of Law
Rothman, Andrew James

New Jersey Practice Outline – Fall 2013
Professor Andrew Rothman
Chapter 1 Introduction: Supreme Court Rulemaking Power, Construction and Hierarchy of the Courts
1)      The Supreme Court of New Jersey:
a.       Plenary Power: The Supreme Court of New Jersey has plenary rule-making power over practice and procedure
2)      The Court’s Rulemaking Power:
a.       Constitution Article 6, Section 2: The Supreme Court shall make rules governing the administration of all courts in the state and, subject to law, the practice and procedure in all courts
b.      Winberry v Salisbury on Procedure: The Supreme Court has primacy regarding the administration of the courts, practice and procedure and admission to and discipline of those admitted to the bar.
c.       Biennial Cycle of Review: The process developed by the Court to permit other stakeholders, particularly the bar, input into the process of amending the Rules
                                                               i.      Beginning Review: The cycle of review begins during even-numbered years, when the Court appoints members to its various rules committees, which are charged with the task of reviewing the existing rules and recommending change to the Supreme Court
                                                             ii.      Representation of Committee: Each committee represents a division of the NJ Court system or a special interest that has application across multiple courts
                                                            iii.      Report of Committee: Each rules committee generates a report that includes its recommendations to the Supreme Court
3)      Construction of the Rules
a.       Applicability Under R. 1:1-1:  Unless otherwise stated, the rules in Part 1 are applicable to the Supreme Court, the Superior Court, the Tax Court, the surrogate’s courts and the municipal courts
                                                               i.      Specific Rule Governance: A specific rule controls a general rule
                                                             ii.      Federal Precedents: If a New Jersey rule parallels a federal rule, these courts may draw on federal precedent as an aid to construction.
b.      Construction Under R. 1:1-2:  The rules in Part 1 through Part VIII, inclusive, shall be construed to follow four purposes.
                                                              i.      Construction’s Purposes
1.       Secure a just determination
2.       Simplicity in procedure
3.       Fairness in administration and
4.       The elimination of unjustifiable expense and delay
                                                             ii.      Importance of Substantial Justice: The fundamental role must prevail and procedure adherence must give way to substantial justice
                                                            iii.      Relaxation of Rules: Unless otherwise stated (i.e. – timing rules such as SOL), any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice.
1.       Discretionary: The Supreme Court provides the lower courts discretion to relax or dispense rules in individual cases where necessary to fulfill the construction’s purposes.
a.       Examples:
                                                                                                                                      i.      Discretion Allowed
1.       Amended Complaint Example: Where a defendant’s non-compliance with a rule induces a plaintiff incorrectly to discontinue the fictitious party designation required by 4:26-4, justice demands that the rule be relaxed so that an amended complaint related back to the original complaint may be filed.
2.       Prejudgment Interest: A jury can indicate that it has increased a damage award to account for prejudgment interest.
3.       Motion Filing: A judge can enlarge the 30-day period for the filing of a motion for a trial de novo after mandatory non-binding arbitration due to extenuating circumstances
4.       Reinstating an Appeal: Under circumstances of probable merit of appeal and serious default of representation, an appeal that was dismissed by failure to prosecute may be properly reinstated.
                                                                                                                                    ii.      Abuse of Discretion
1.       Prejudgment Interest: Discretion should not be used to suspend prejudgment interest (4:42-11(b)), where delay of the action was caused by the defendant’s late notification of filing and service. 
2.       Denial of Unopposed Motion: A denial of a defendant’s unopposed motion to permit the late filing of an answer
                                                           iv.      Absence of Rule: In the absence of rule, the court may proceed in any manner compatible with these purposes and, in civil cases, consistent with the case management/trial management guidelines set forth in Appendix XX of these rules.
1.       Local Rules of General Applicability: If local rules of general applicability by assignment judges are contrary to the specific provision of the rules promulgated by the Supreme Court, they are prohibited.
4)      Changes in the Court
a.       Constitution Article 6, Section 1:
                                                               i.      Source of Judicial Power: Judicial power shall be vested in a Supreme Court, Superior Court, County Courts, and inferior courts of limited jurisdiction
                                                             ii.      Establishment of Inferior Courts: The inferior courts and their jurisdiction may from time to time be established, altered or abolished by law.
b.      Courts Under Article 6 Judiciary:
                                                              i.      Supreme Court
                                                            ii.      Superior Court
1.       Superior Court Division: The Superior court consists of two main courts-
a.       Appellate Division
b.      Trial Courts: The trial courts comprise of four functional units
                                                                                                                                       i.      Civil Court
                                                                                                                                     ii.      Criminal Court
                                                                                                                                    iii.      Family Court
                                                                                                                                   iv.      General Equity Parts
2.       Chancery Division: The Chancery Division consists of the General Equity Parts
a.       Family Part
b.      Probate Part
3.       Law Division: The Law Division consists of three Parts
a.       Criminal Part
b.      Civil Part
c.       Special Civil Part
                                                                                                                                       i.      Small Claims Division: The Special Civil Part has a small claims division
                                                            iii.      Inferior Courts: There are three inferior courts
1.       Tax Court
a.       Small Claims Division: The Tax Court contains a small claims division.
2.       Municipal Courts
3.       Surrogate’s Court
c.       Administrative Departments: The judiciary has two administrative departments, each of which has extensive administrative staff and a variety of quasi-legislative and quasi-judicial boards and committees that recommended action to the Supreme Court in its legislative and disciplinary aspect
                                                              i.      Two Departments:
1.       Administrative Office of the Courts
2.       Office of Attorney Ethics
d.      Executive Branch’s Quasi-Judicial Agencies: The executive branch maintains two quasi-judicial agencies.
                                                               i.      Division of Worker’s Compensation in the Department of Labor: The Workers Compensation Act is administered by this division
1.       Courts of Compensation: The Courts of Compensation are within this Division.
5)      Challenges to the Supreme Court’s Rulemaking Power
a.       Winberry on “Subject to Law”: The word subject to law in Article 6, Section 2, paragraph 3 of the Constitution means that the rule-making power of the Supreme Court is not subject to over-riding legislation
                                                               i.      Completeness of Procedural Laws: The Supreme Court’s authority is complete with regar

ssignment Judge also shall include all such matters affecting county and municipal governments, including but not limited to budgets, personnel, and facilities.
d.      Duties Directing Vicinage Judges: The Assignment Judge shall be responsible for the supervision and efficient management of all court matters filed in the vicinage and for the supervision, superintendence and allocation of all judges and personnel having a judicial support function within the vicinage.
                                                                                                                                       i.      Appointment and Discharge of Vicinage Judges: Subject to uniform minimum standards and conditions promulgated by the Administrative Director, the Assignment Judge may appoint and discharge judicial support personnel within the vicinage.
e.      Administrative Duties: The Assignment Judge shall have full responsibility for the administration of all court units within the vicinage, including those of the Surrogate and the Deputy Clerk of the Superior Court.
f.        Additional Duties: The Assignment Judge shall perform such additional duties as shall be assigned by the Chief Justice or by rule of the Supreme Court.
3.       Presiding Judge: Each functional unit shall be supervised by a Presiding Judge who shall be appointed by the Chief Justice, after consultation with the Assignment Judge, and who shall serve at the pleasure of the Chief Justice.
a.       Not Limited to One Unit: A Presiding Judge may supervise more than one functional unit.
b.      Directed by Assignment Judges: The Presiding Judge shall report directly and be responsible to the Assignment Judge.
c.       Assignment Judge as Presiding Judge: The Chief Justice may appoint the Assignment Judge to serve as the Presiding Judge for one or more functional units within the vicinage.
d.      Tax Court Presiding Judge: The Chief Justice shall designate a judge of the Tax Court as presiding judge, to serve at the pleasure of the Chief Justice.
e.      Delegation of Assignment Judge Power (1:33-6a): Except as provided by the Chief Justice or by the Supreme Court, the Assignment Judge may delegate to the Presiding Judge of each functional unit within the vicinage, judicial duties and responsibilities allocated to the Assignment Judge by these rules.
f.        Duties of a Presiding Judge (1:33-6(b): In addition to judicial duties, the Presiding Judge of each functional unit within the vicinage shall be responsible for the expeditious processing to disposition of all matters filed within that unit.
                                                                                                                                       i.      Budget and Personnel Duties: The Presiding Judge annually shall submit to the Trial Court Administrator and Assignment Judge, budget and personnel needs and recommendations for the unit at such times and in such format and in accordance with such procedures as shall be prescribed by the Administrative Director.
                                                                                                                                     ii.      Additional Administrative Duties: The Presiding Judge shall perform such additional administrative duties as shall be assigned by the Assignment Judge and shall be responsible for the implementation and enforcement within the court of all administrative rules, policies and directives of the Supreme Court, the Chief Justice, the Administrative Director and the Assignment Judge.