An Anniversary in Supreme Court Certified Questions

In recent years, acceptance by the Supreme Court of questions certified to it by the Third Circuit Court of Appeals under Rule 2:12A has become somewhat more frequent, though still not a regular occurrence.  Today, May 16, however, is the anniversary of the Court’s first opinion answering a certified question under Rule 2:12A.  Musikoff v. Jay Parrino’s The Mint, 172 N.J. 133 (2002).  Justice Verniero wrote the opinion for a unanimous Court.

The question in that case was “Whether under New Jersey law, in order to enforce a lien under [N.J.S.A.] 2A:13-5, an attorney must file a petition to acknowledge and enforce the lien prior to any settlement or final judgment in the underlying matter in which the attorney provided services giving rise to the lien?  In other words, is the last sentence of [N.J.S.A. 2A:13-5] (‘The court in which the action or other proceeding is pending, upon the petition of the attorney or [counselor] at law, may determine and enforce the lien’) intended to control the forum where the petition is brought or the timing of the petition?”

Justice Verniero traced the evolution of attorneys’ liens (actually, “the charging (or special) lien and the retaining lien) from the common law through the Attorney’s Lien Act, N.J.S.A. 2a:13-5.  Applying “familiar canons of construction,” with a particular emphasis on the “critical” final sentence of the statute, as foreshadowed by the language of the certified question itself, the Court found an ambiguity that required resort to factors beyond the plain language of the statute.  Caselaw too was mixed, with cases after 1959 moving in a different direction than those decided earlier.

The Court sided with the earlier line of cases.  Its conclusion was that “the Act’s last sentence controls the forum in which a petition is brought, not the timing of the petition.  Stated differently, we conclude that the Act does not require an attorney to file a petition to acknowledge and enforce an attorney’s lien prior to settlement or judgment in the matter that has given rise to the lien itself.”  The Court carefully disclaimed any intent to decide, however, the outcome in that particular case, or to opine about the time period in which a petition must be filed, though the Court did say that “attorneys should not delay in asserting their liens under the Act.”