"[G]enerally, 'when the Legislature creates an exhaustive list, it is assumed to intend to exclude what is not enumerated unless it indicates by its language that the list or section is not meant to be exhaustive or exclusive.'" (quoting Borough of E. Rutherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190, 215 (2013))
How later courts described this case
- "[G]enerally, 'when the Legislature creates an exhaustive list, it is assumed to intend to exclude what is not enumerated unless it indicates by its language that the list or section is not meant to be exhaustive or exclusive.'" (quoting Borough of E. Rutherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190, 215 (2013))
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5997-12T2
L.C.,1
Appellant, APPROVED FOR PUBLICATION
v. March 16, 2015
APPELLATE DIVISION
BOARD OF REVIEW, DEPARTMENT
OF LABOR and LAKELAND BANK,
Respondent.
______________________________
Submitted January 21, 2015 – Decided March 16, 2015
Before Judges Messano, Ostrer and Hayden.
On appeal from the Board of Review,
Department of Labor, Docket No. 423,182.
L.C., appellant pro se.
John J. Hoffman, Acting Attorney General,
attorney for respondent Board of Review
(Lewis A. Scheindlin, Assistant Attorney
General, of counsel; Adam Verone, Deputy
Attorney General, on the brief).
Respondent Lakeland Bank has not filed a
brief.
1
As this appeal addresses plaintiff's claim she was a victim of
domestic violence, we refer to her and other parties by their
initials, consistent with our practice in cases involving
domestic violence complaints.
The opinion of the court was delivered by
OSTRER, J.A.D.
In this unemployment insurance appeal, we construe N.J.S.A.
43:21-5(j), which allows a person to receive unemployment
insurance benefits when he or she has quit work for reasons
related to domestic violence. L.C. claimed she quit her job at
Lakeland Bank and moved to Utah to flee an abusive ex-spouse.
Since 1961, our unemployment insurance laws have generally
disqualified claimants from receiving benefits if they "left
work voluntarily without good cause attributable to such work."
L. 1961, c. 43, §3, codified at N.J.S.A. 43:21-5(a). Personal
reasons for quitting unrelated to work, regardless of how
compelling, have not warranted benefits. Self v. Bd. of Review,
91 N.J. 453, 456-57 (1982). However, in 2000, the Legislature
created an exception for workers who leave work because they are
victims of domestic violence. L. 1999, c. 391, § 1 (1999 Law),
codified at N.J.S.A. 43:21-5(j).
L.C. argues that the Board of Review (Board) misapplied the
1999 Law in denying her claim for benefits. The Board affirmed
the determination of the Appeal Tribunal (Tribunal) that L.C.
had presented insufficient evidence that she was a victim of
domestic violence. The Board did not consider a letter from
L.C.'s divorce lawyer, identifying various acts of domestic
2 A-5997-12T2
violence by her estranged husband. As we conclude the Board
should consider a certification from L.C.'s attorney under the
1999 Law, we reverse and remand for a new hearing.
I.
In February 2013, after almost six years on the job, L.C.
gave Lakeland Bank two weeks' notice that she was resigning as a
loan processor. On March 17, 2013, she filed her unemployment
claim. The deputy denied her claim as a voluntary quit without
good cause attributable to work. L.C. appealed, claiming
protection under the 1999 Law.
The statute includes two essential elements. First, a
claimant must establish that he or she is a victim of domestic
violence as defined in the Prevention of Domestic Violence Act
(PDVA), N.J.S.A. 2C:25-19. Second, the claimant must establish
that the loss of employment, by quitting or discharge, was
causally related to being a victim. The key statutory provision
states: "Notwithstanding any other provisions of this chapter
. . . no otherwise eligible individual shall be denied benefits
because the individual left work or was discharged due to
circumstances resulting from the individual being a victim of
domestic violence as defined in section 3 of P.L.1991, c.261
(C.2C:25-19)." N.J.S.A. 43:21-5(j). Employers' accounts are
unaffected. Ibid.
3 A-5997-12T2
The statute identifies six categories of evidence that
suffice as proof of victimization. At issue in our case is the
sixth category, which refers to "documentation or certification"
from various professionals who have "assisted the individual in
dealing with the domestic violence." Ibid.
For the purposes of this subsection
(j), the individual shall be treated as
being a victim of domestic violence if the
individual provides one or more of the
following:
(1) A restraining order or other
documentation of equitable relief issued by
a court of competent jurisdiction;
(2) A police record documenting the
domestic violence;
(3) Documentation that the perpetrator
of the domestic violence has been convicted
of one or more of the offenses enumerated in
section 3 of P.L.1991, c.261 (C.2C:25-19);
(4) Medical documentation of the
domestic violence;
(5) Certification from a certified
Domestic Violence Specialist or the director
of a designated domestic violence agency
that the individual is a victim of domestic
violence; or
(6) Other documentation or
certification of the domestic violence
provided by a social worker, member of the
clergy, shelter worker or other professional
who has assisted the individual in dealing
with the domestic violence.
[Ibid.]
4 A-5997-12T2
The Tribunal hearing was conducted in two sessions on May
28 and May 30, 2013. The only witnesses were L.C.; her friend,
D.S.; and her former supervisor, M.M. They all appeared by
telephone.
The witnesses testified without dispute that L.C.'s husband
humiliated her, damaged her property, and physically assaulted
her. L.C. testified that she and her husband began living
separately in their home in late 2011 or early 2012. She often
stayed in the homes of friends. In February or March 2012, she
sought permission from the court to relocate with their teenage
children. Her husband responded a few months later by filing
for divorce. The proceedings that followed were contentious.
L.C. testified that her husband forced her to sleep in the
basement in a sleeping bag. She was also subjected to
demeaning, coarse, and insulting language from her husband and,
at her husband's instigation, her children. One morning, she
awoke to find all four of her tires flattened. She contended
she was too afraid to file a domestic violence complaint against
her husband. But, she asserted that police had to respond to
their home on multiple occasions because of their domestic
disputes.
She testified that she essentially surrendered to all her
husband's demands in the divorce action, including his request
5 A-5997-12T2
for sole custody of their children, and sole possession of the
marital home. The divorce was finalized on March 12, 2013, one
day after L.C.'s last day on the job at Lakeland Bank. L.C.
moved to Utah the following week. L.C. stated, "I left with
nothing but my clothes."
D.S. testified that while L.C.'s divorce action was
pending, L.C. would often sleep at her house, to flee
mistreatment by her husband. D.S. stated that L.C. lost about
thirty pounds, apparently related to her emotional distress.
Further, D.S. asserted that L.C.'s husband was mentally
unstable, and on one occasion, shoved L.C. around. As his
condition deteriorated, D.S. testified, "I was afraid that he
would snap and kill her."
M.M. testified that L.C. disclosed her ongoing difficulties
with her husband. M.M. confirmed that L.C. indicated to her
that she was a victim of domestic violence.
The evidence regarding the causal connection between L.C.'s
victimization, and her resignation, was more complicated. L.C.
asserted she resigned her job to flee her husband. She
testified she was homeless because of her divorce. L.C. also
stated, "I was leaving because I was scared." On the other
hand, she admitted her move out West was motivated in part by
financial considerations, a lower cost of living, and a desire
6 A-5997-12T2
to be near family. She initially arranged for employment in
Nevada, but that fell through. So, she moved to Utah, where she
resided with a boyfriend.
The appeals examiner asked D.S. about conversations with
L.C. regarding her plans for relocating after her divorce. D.S.
testified that L.C. was fighting for custody of her children,
but was frustrated by the delays in her divorce case. "I think
she just finally decided [at] that last Court hearing whether or
not they were divorced she had to go because like I said he did
shove her fairly recently before that Court date." D.S. stated
that L.C. could not afford to live on her own with her children
in New Jersey, and could get help from family out West.
M.M. testified that L.C. told her she was resigning in
order to relocate to Las Vegas. Her resignation letter did not
address her reasons for leaving. However, in her exit
interview, L.C. mentioned her dissatisfaction with her salary.
During the hearing on May 28, 2013, the appeals examiner
set forth his interpretation of the 1999 Law, and the proof
required to establish she was a victim of domestic violence. He
stated that L.C. was required to establish a "direct connection"
between being a victim and the separation from work.
[I]f somebody leaves their job voluntarily
in the State of New Jersey for any personal
reasons . . . unrelated to the working
conditions the person is held disqualified
7 A-5997-12T2
indefinitely because the quit is not related
to the . . . the working conditions,
basically. However if a person can show us
that they were officially a member [sic] of
domestic violence . . . those benefits could
potentially be approved if a person is
relocating after having shown a direct
connection to being . . . a victim of
domestic violence the benefits could
potentially be approved in those matters.
However the burden of proof still falls upon
the claimant yourself to show us physical
documentation that you were a legitimate
victim of domestic violence. That can come
about by either a domestic violence
specialist report, which you said you don't
have and/or police reports showing that you
were officially . . . a member [sic] of
domestic violence. If that happens and you
are approved for unemployment benefits the
employer still remains relieved of
unemployment benefit charges in those
situations.
[(Emphasis added).]
In response to L.C.'s inquiry, the appeals examiner stated that
"legitimate written documentation from a professional
psychologist or medical doctor" would also suffice, "[a]s long
as it is related to . . . you, being a potential member [sic] of
domestic violence . . . ." The appeals examiner gave L.C. until
June 4, 2013, to submit written evidence.
At the second telephonic hearing on May 30, L.C. stated
that based on conversations with police department personnel
from her former hometown in New Jersey, she would be unable to
obtain police reports, particularly those involving domestic
8 A-5997-12T2
violence, within five days. L.C. said she contacted the mental
health professional who counseled her family, but she could not
afford the counselor's $300 fee for preparing a report. After
completing oral testimony at the second session, the appeals
examiner "close[d] the hearing."
The examiner mailed his decision the same day. He found
that L.C. left work voluntarily, without good cause attributable
to the work, citing N.J.S.A. 43:21-5(a) and N.J.A.C. 12:17-
9.1(e). The examiner rejected L.C.'s claim under the 1999 Law,
finding L.C. relocated because she "could not afford to live in
New Jersey any longer," and she had family members near her new
place of residence. He found that her claim she was a victim of
domestic violence was "not . . . credible," because she failed
to provide the requisite documentation to establish she was a
victim of domestic violence.
On June 4, 2013 — the date by which the appeals examiner
stated he would consider proof that L.C. was a victim of
domestic violence — L.C.'s former divorce attorney submitted a
letter to the Tribunal supervisor, supporting L.C.'s request for
unemployment benefits.2 He stated that L.C.'s husband repeatedly
"harass[ed]" and "degrade[ed]" her. "As a result, [L.C.]
2
The letter was sent by certified mail and was dated June 4,
2013. The record does not reflect the date of receipt.
9 A-5997-12T2
literally had to leave the State of New Jersey and left her
children, home and job behind her." L.C. was so desperate to
leave, she waived spousal support, rights to marital property,
and accepted limited contact with her children.
The attorney stated that local police, social service
agencies, and the Division of Youth and Family Services were all
involved in the family discord. He provided a detailed
chronology of events between February 2012 and March 2013. He
mentioned multiple acts of alleged criminal mischief, attributed
to L.C.'s husband, including: cutting telephone and cable wires
to the home; loosening the lug nuts on a car wheel; placing a
screw in a tire; smashing one of her cosmetic appliances; and
flattening all her tires. He also alleged L.C.'s husband
falsely accused L.C. of physical threats to him, child
molestation, and working in the pornography industry. L.C.
allegedly caught her husband stalking her on one occasion. The
attorney also identified instances of abusive language, and
other conduct apparently designed to annoy L.C., such as turning
off the heat while she was sleeping, throwing her belongings
into the basement, and rewarding the children when they insulted
their mother.
Contrary to L.C.'s testimony that she was too afraid to
seek restraining orders against her husband, the attorney wrote
10 A-5997-12T2
that L.C. twice sought domestic violence restraining orders,
"but she was turned down both times." The attorney stated that
L.C. sought a restraining order after her husband tampered with
her car in May 2012. He did not identify the date of the other
domestic violence complaint, nor did he disclose whether the
denial of a restraining order was by a court, after a full
evidentiary hearing.
There is no indication in the record that the Tribunal or
the Board considered the attorney's letter. In a decision
mailed July 2, 2013, the Board affirmed the Tribunal's decision
"[o]n the basis of the record below," after finding that L.C.
was given a full opportunity to present evidence and there was
"no valid ground for a further hearing."
L.C. appeals, arguing that she was entitled to benefits
under the 1999 Law, as she left New Jersey to escape an abusive
relationship. She asserts the appeals examiner set unreasonable
deadlines for the submission of proof she was a victim of
domestic violence. She also contends the letter from her
attorney should have been considered and deemed sufficient as
documentation from an "other professional who has assisted the
individual in dealing with the domestic violence" under N.J.S.A.
43:21-5(j)(6).
11 A-5997-12T2
Although neither the Tribunal nor the Board expressly
considered the attorney's letter, the Board does not argue the
letter was appropriately rejected as untimely. Rather, the
Board asserts an attorney is not an acceptable source of
documentation under paragraph (6), and, in any event, the
attorney's letter did not document acts of domestic violence.
Absent the requisite proofs under paragraphs (1) through (6),
the Board contends the 1999 Law did not apply, and L.C. was
disqualified because she left work voluntarily without good
cause attributable to work.
II.
Addressing the principal issue on appeal, we conclude an
attorney is an acceptable source of "documentation or [a]
certification of the domestic violence" under N.J.S.A. 43:21-
5(j)(6). However, we also determine that written evidence of
the domestic violence, if drafted for the purpose of supporting
the unemployment insurance claim, should be in the form of a
certification, consistent with Rule 1:6-6. We also address
other issues of statutory construction raised by the appeal.
A.
We begin with our standard of review. Although we afford
some deference to an agency's interpretation of a statute it is
charged with enforcing or applying, we are not bound by the
12 A-5997-12T2
agency's interpretation. Hargrove v. Sleepy's, LLC, 220 N.J.
289, 301-02 (2015). In reviewing an agency's adjudication,
"[a]n appellate tribunal is . . . in no way bound by the
agency's interpretation of a statute." Mayflower Sec. Co. v.
Bureau of Sec., 64 N.J. 85, 93 (1973). "Although deference is
due the interpretation of a regulatory scheme by the agency
charged with its enforcement, statutory interpretation is
ultimately the task of the judiciary." Mortg. Bankers Ass'n v.
N.J. Real Estate Comm'n, 102 N.J. 176, 191 (1986).
Deference to an agency's interpretation is particularly
compelling when the agency's interpretation is grounded in its
technical or specialized expertise. See In re Freshwater
Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004) (stating
"deference is appropriate because . . . agencies have the
specialized expertise necessary to enact regulations dealing
with technical matters") (internal quotation marks and citation
omitted); A.Z. ex rel. B.Z. v. Higher Educ. Student Assistance
Auth., 427 N.J. Super. 389, 394 (App. Div. 2012). Deference is
also justified when the agency's interpretation has persisted
for an extended period of time without legislative interference.
That is because "the practical administrative construction of a
statute over a period of years without interference by the
legislature is evidence of its conformity with the legislative
13 A-5997-12T2
intent . . . ." Body-Rite Repair Co. v. Dir., Div. of Taxation,
89 N.J. 540, 545-46 (1982) (internal quotation marks and
citation omitted).
These considerations do not apply here. The determination
of whether a person is a victim of domestic violence does not
fall within the technical expertise of the Division of
Unemployment Insurance (Division). The interpretation of the
PDVA, and the adjudication of claims of domestic violence have
been a judicial function. Pursuant to the PDVA, judges and
judicial staff receive specialized training in the handling of
domestic violence cases. N.J.S.A. 2C:25-20(b).
Although the Division has adopted regulations to implement
the 1999 Law, the regulations essentially repeat verbatim the
relevant statutory language, with minor renumbering changes.
See N.J.A.C. 12:17-9.12.3 We are unaware of any prior, consistent
administrative interpretation of the statute as it pertains to
whether "other professional[s]" includes attorneys, and the
Board has not identified any. In this case, neither the Board
3
The regulations deviate from the statutory language only with
respect to clarifying that non-profit and public employers
"electing the reimbursable method pursuant to N.J.S.A. 43:21-
7.2" are also shielded from charges to their account for
benefits paid under the 1999 Law. N.J.A.C. 12:17-9.12(b).
14 A-5997-12T2
nor the Tribunal expressly stated in their decisions that an
attorney was not an acceptable professional under paragraph (6).4
B.
Turning to the 1999 Law, our interpretation is guided by
well-established principles. Our mission is to ascertain and
implement the Legislature's intent as embodied in the statutory
4
Although the regulations do not define "other professional,"
the Division recognized the 1999 Law's salutary effect in its
social impact statement accompanying its rule-making:
The proposed new rule will have a
positive social impact in that it will
prevent economic concerns from causing
victims of domestic violence to hesitate in
taking all appropriate actions in order to
protect their personal safety in what may
potentially be life-threatening situations.
Domestic violence affects victims, their
families, and the communities in which they
live. Victims bear the physical and
psychological burdens of abuse, with a
severely decreased quality of personal and
professional life. Many victims remain in
abusive relationships because they do not
have available to them sufficient
alternatives. Among the factors which often
finally contribute to the important decision
of victims of domestic violence to separate
from their abusers and begin lives of
independence, is a sense of financial
security. The State can assist in providing
that financial security to these individuals
by permitting them to collect unemployment
benefits when they have left work or been
discharged due to circumstances resulting
from their having been the victims of
domestic violence.
[32 N.J.R. 1699(a) (May 15, 2000).]
15 A-5997-12T2
language. See, e.g., In re Kollman, 210 N.J. 557, 568 (2012).
"We ascribe to the statutory words their ordinary meaning and
significance, and read them in context with related provisions
so as to give sense to the legislation as a whole." DiProspero
v. Penn, 183 N.J. 477, 492 (2005) (citations omitted). "If the
language is clear, our task is complete; if it is not, we may
turn to extrinsic evidence." Myers v. Ocean City Zoning Bd. of
Adjustment, 439 N.J. Super. 96, 100 (App. Div. 2015) (citing
Kollman, supra, 210 N.J. at 568).
We may also turn to extrinsic materials if a literal
interpretation would lead to a result that is absurd, or "at
odds with the overall statutory scheme." Wilson ex rel. Manzano
v. City of Jersey City, 209 N.J. 558, 572 (2012). Extrinsic
materials may include the legislative history, committee
reports, and sponsor statements. Ibid. We are guided in our
task "by the legislative objectives sought to be achieved by
enacting the statute." Ibid.
Based on its plain language, paragraph (6) includes
attorneys as an acceptable source of a "documentation or
certification of the domestic violence." N.J.S.A. 43:21-
5(j)(6). The paragraph refers to "a social worker, member of
the clergy, shelter worker or other professional who has
assisted the individual in dealing with the domestic violence."
16 A-5997-12T2
Ibid. (emphasis added). Certainly, an attorney assists a person
in dealing with domestic violence when counseling a client as to
his or her rights and remedies in a case of domestic violence,
or in representing a client in seeking relief. That is so
whether the attorney represents a client in an action under the
PDVA, or in a matrimonial or non-dissolution action.
We recognize that "other professional[s]" must share some
common attributes with the persons that the statute specifically
identifies. "'[W]here general words follow specific words in a
statutory enumeration, the general words are construed to
embrace only objects similar in nature to those objects
enumerated by the preceding specific words.'" Gallenthin Realty
Dev., Inc. v. Borough of Paulsboro, 191 N.J. 344, 367 (2007)
(quoting 2A Norman J. Singer, Sutherland Statutory Construction
§ 47:17 (6th ed. 2000)).
The three specifically identified sources of documentation
or certification in paragraph (6) are not restricted to a single
category of professional, such as those licensed to practice in
the mental health field. Indeed, members of the clergy and
shelter workers are not professionals in the sense of being
licensed by the State.5 They are professionals in the sense that
5
We need not address, in this case, who would qualify as
"clergy" under the statute. See In re Murtha, 115 N.J. Super.
(continued)
17 A-5997-12T2
they have received specialized training that may include the
capacity to counsel or assist a victim of domestic violence.
Nor do the three identified sources necessarily provide the
same kind of services. A social worker may provide mental
health counseling, or may restrict his or her services to
assisting a victim in accessing governmental services and
support programs. It is unclear from the statute what services
a shelter worker may provide to a victim. A "shelter worker" is
obviously distinct from a "certified domestic violence
specialist," who may provide a certification under paragraph (5)
that a person is a domestic violence victim. Although "shelter
worker" is undefined, "domestic violence specialist" is defined
to mean "a person who has fulfilled the requirements of
certification as a Domestic Violence Specialist established by
the New Jersey Association of Domestic Violence Professionals."
N.J.S.A. 43:21-5(j). Given the breadth of skills, education,
and assistance provided by the three persons named in the
statute, "other professional[s]" reasonably may include an
(continued)
380, 384-86 (App. Div.) (holding that a nun in a teaching order
was not "a clergyman, minister or other person or practitioner
authorized to perform similar functions" under former Evidence
Rule 29, governing clergy-penitent privilege) (internal
quotation marks and citation omitted), certif. denied, 59 N.J.
239 (1971); see also State v. Cary, 331 N.J. Super. 236, 240-47
(App. Div. 2000) (discussing whether a Baptist Deacon qualifies
as a cleric or spiritual advisor under N.J.R.E. 511).
18 A-5997-12T2
attorney providing legal services to assist a client in "dealing
with . . . domestic violence."
Our interpretation is consistent with the legislative
purpose of the 1999 Law, and its legislative history. The
sponsor's expressed purpose was to "prevent economic concerns
from causing a victim to hesitate in taking all appropriate
actions to increase personal safety in what may potentially be a
life-threatening situation." Sponsor's Statement to Senate Bill
No. 869, 208th Legislature (March 19, 1998). The statute's
legislative history does not otherwise address the specific
question before us, that is, the breadth of the category of
"other professional[s]" in paragraph 6.6
We are aware that many states, prompted by the federal
incentives offered in a provision of the American Recovery and
Reinvestment Act of 2009, 42 U.S.C.A. § 1103(f)(3)(B)(i)(I),
have adopted legislation to assure unemployment insurance
benefits to persons who quit work for a "compelling family
reason" such as domestic violence or sexual assault. See The
6
In the year prior to the 1998 introduction of the legislation
that would become the 1999 Law, we affirmed the Board's denial
of benefits to a claimant who quit her job and moved to
California, to flee an abusive husband after obtaining a final
restraining order against him. Pagan v. Bd. of Review, 296 N.J.
Super. 539, (App. Div.), certif. denied, 150 N.J. 24 (1997).
However, we are unaware of any evidence that the Legislature's
purpose was to respond in some way to the Pagan decision.
19 A-5997-12T2
Women's Legal Defense & Educ. Fund, ARRA: Extending the
Unemployment Insurance Safety Net to Victims of Domestic
Violence, at 3 (identifying states that have adopted legislation
pursuant to the federal law), available at http://www.
legalmomentum.org/sites/default/files/reports/arra-extending-ui-
dv.pdf (last visited February 25, 2015). The federal law
requires verification "by such reasonable and confidential
documentation as the State law may require." 42 U.S.C.A. §
1103(f)(3)(B)(I).
Many states expressly include attorneys as an acceptable
source of substantiation that a victim sought assistance for
domestic violence. See, e.g., Colo. Rev. Stat. § 8-73-108(r)
(2014) (allowing unemployment benefits for claimants separated
from a job due to domestic violence upon presenting
documentation, including "from a qualified professional from
whom the [claimant] has sought assistance for the domestic
violence, such as a counselor, shelter worker, member of the
clergy, attorney, or health worker") (emphasis added).7 The law
7
See also Del. Code Ann. tit. 19, § 3314(1) (2015) (requiring
documentation that may include "a police or court record, or
documentation of the domestic violence from a shelter worker,
attorney, member of the clergy or medical or other professional
from whom the employee has sought assistance in addressing
domestic violence and its effects"); D.C. Code § 51-132
(LexisNexis 2015) (requiring documentation that may include a
written report affirming the claimant sought assistance for
(continued)
20 A-5997-12T2
of at least one state, like New Jersey, does not identify
attorneys, but refers to documentation from other professionals,
which is not further defined. N.C. Gen. Stat. § 96-14.8(2)
(2014) (allowing "[d]ocumentation from a religious, medical, or
(continued)
domestic violence "from the signatory," from a "(i) [s]helter
official; (ii) [s]ocial worker; (iii) [c]ounselor; (iv)
[t]herapist; (v) [a]ttorney; (vi) [m]edical doctor; or (vii)
[c]leric"); 820 Ill. Comp. Stat. Ann. 405/601(B)(6)(a)
(LexisNexis 2014) (allowing "evidence of domestic violence from
a member of the clergy, attorney, counselor, social worker,
health worker or domestic violence shelter worker"); Kan. Stat.
Ann. § 44-706(a)(12) (Supp. 2013) (allowing "a statement
provided by a counselor, social worker, health care provider,
clergy, shelter worker, legal advocate, domestic violence or
sexual assault advocate or other professional who has assisted
the individual in dealing with the" domestic violence and its
effects); Mass. Ann. Laws ch. 151A, § 1(g1/2) (LexisNexis 2014)
(allowing "a statement provided by a counselor, social worker,
health worker, member of the clergy, shelter worker, legal
advocate or other professional who has assisted the individual
in addressing the effects of the abuse"); Minn. Stat. §
268.095(9) (2014) (allowing a "written statement" that the
applicant "is a victim of domestic abuse, provided by a social
worker, member of the clergy, shelter worker, attorney at law,
or other professional who has assisted the applicant in dealing
with the domestic abuse"); R.I. Gen. Laws § 28-44-17.1(b) (2014)
(requiring documentation that may include "but [is] not limited
to, police or court records, or other documentation of domestic
abuse from a shelter worker, attorney, member of the clergy, or
medical or other professional from whom the individual has
sought assistance"); S.C. Code Ann. § 41-35-125(A)(2) (2013)
(allowing "documentation of domestic abuse such as police or
court records or other documentation of abuse from a shelter
worker, attorney, member of the clergy, or medical or other
professional from whom the individual has sought assistance");
Vt. Stat. Ann., tit. 21, § 1253 (2014) (allowing a sworn
statement from the individual, court records, "or other
documentation from an attorney or legal advisor, member of the
clergy, or health care provider").
21 A-5997-12T2
other professional from whom the individual has sought
assistance in dealing with the alleged domestic violence"). The
treatment of this issue by other states demonstrates that
including attorneys is a reasonable interpretation of "other
professionals" who assist domestic violence victims.
Having concluded that an attorney is an acceptable source
of proof under paragraph (6), we turn to address the form of
proof required. The words "documentation" and "certification"
are both used in a paragraph (6), which refers to "[o]ther
documentation or certification of the domestic violence"
provided by the enumerated persons who assisted the individual.
We conclude that the manner in which the words are used in
paragraphs (1) through (5) imply that "documentation" consists
of a writing that was created independently of the person's
claim for unemployment benefits, in the course of the person's
response to domestic violence. By contrast, a "certification"
consists of a statement prepared for the purpose of establishing
the claimant was a victim.
Paragraph (1) refers to a restraining order or other
"documentation of equitable relief" granted by a court. Police
records that "document[] the domestic violence" can serve as
proof under paragraph (2). The statute refers to conviction
records of the perpetrator of domestic violence as
22 A-5997-12T2
"[d]ocumentation." N.J.S.A. 43:21-5(j)(3). Similarly, the
statute refers to "medical documentation" of the domestic
violence. N.J.S.A. 43:21-5(j)(4). On the other hand, a
statement of a certified domestic violence specialist or a
domestic violence agency director that a person is a domestic
violence victim must be provided in the form of a
"[c]ertification." N.J.S.A. 43:21-5(j)(5). Thus, "documentation
. . . of the domestic violence" provided by the professional may
consist of contemporaneous records of the assistance provided.
On the other hand, a statement made for the purpose of
supporting the unemployment insurance claim should be in the
form of a certification.
C.
Other issues of interpretation warrant our attention. We
conclude that one of the six forms of proof is a prerequisite to
establishing the right to benefits under the 1999 Law,
notwithstanding that the plain language may be read to consider
one of the forms of proof sufficient, but not mandatory. We
also conclude that the causation element does not require a
direct causal connection between the domestic violence and the
claimant's unemployment.
23 A-5997-12T2
1.
Based on its plain language, the statute is unclear whether
one of the six forms of proof is not only sufficient, but
necessary to establish that a claimant is a victim of domestic
violence. The statute provides that "the individual shall be
treated as being a victim of domestic violence if the individual
provides one or more of the following" forms of proofs; but it
does not expressly exclude proof through other means. N.J.S.A.
43:21-5(j). However, we conclude, based on an accepted canon of
statutory interpretation, as well as clear legislative history,
that at least one of the six forms of proof is essential to
establishing a claim under the 1999 Law.
First, one of the forms of proof is necessary if we apply
the maxim expressio unius est exlusio alterius, that is, "the
express mention of one thing implies the exclusion of another."
Gangemi v. Berry, 25 N.J. 1, 11 (1957). The maxim should not be
applied arbitrarily. Ibid. Nonetheless, generally, "[w]hen the
Legislature creates an exhaustive list, it is assumed to intend
to exclude what is not enumerated unless it indicates by its
language that the list or section is not meant to be exhaustive
or exclusive." Borough of E. Rutherford v. E. Rutherford PBA
Local 275, 213 N.J. 190, 215 (2013).
24 A-5997-12T2
The legislative history reflects the intention that one of
the six forms of proof shall be a prerequisite to establishing
that a person was a domestic violence victim. "The committee
amended the bill to require that in order for an individual to
be treated as a victim of domestic violence under the provisions
of the bill, the individual shall provide one or more of" the
six categories of proof ultimately included in the statute.
Senate Women's Issues, Children and Family Servs. Comm.
Statement to Senate Bill No. 869, 208th Legislature (May 20,
1999) (emphasis added). See also Senate Budget and
Appropriations Comm. Statement to Senate Bill No. 869, 208th
Legislature (First Reprint) (November 8, 1999) ("The bill
requires that for an individual to be treated as a victim of
domestic violence under the provisions of the bill, the
individual shall provide at least one of the . . . forms of
documentation . . . ."); Assembly Labor Comm. Statement to
Assembly Bill No. 2366, 208th Legislature (First Reprint)
(December 6, 1999) ("Benefits are prohibited unless an
individual provides at least one of the forms of documentation
of domestic violence enumerated in the bill.").
Based on its plain language, the Legislature also
determined that only one of the forms of proof was required, in
order to "be treated as being a victim of domestic violence."
25 A-5997-12T2
N.J.S.A. 43:21-5(j). The individual must "provide[] one or
more" of the specified forms of proof. Ibid. Upon doing so,
the individual "shall be treated as being a victim of domestic
violence." Ibid. In other words, the submission of one of the
forms of proofs is dispositive. Apparently, the Legislature did
not want to assign to the Division the task of conducting trials
within trials — that is, a full-blown trial on whether a person
was a victim of domestic violence, before reaching the issues
pertaining to separation from work. Rather, the Legislature
identified forms of acceptable proof that would determine the
issue.8 Consequently, so long as a claimant produces at least
one form of proof, the failure to produce another identified
form of proof should bear no weight in determining whether to
treat the claimant as a victim.9
8
The Legislature could have provided that submission of one of
the forms of proof was essential, but not necessarily
sufficient. Such an approach is apparently found, for example,
in the D.C. Code, which states, "A claimant may be eligible to
receive benefits for separation from employment due to domestic
violence provided that one of the following is submitted to
support the claim of domestic violence . . . ." D.C. Code. §
51-132. Thus, unlike N.J.S.A. 43:21-5(j), the D.C. Code does
not expressly compel a finding of victimization upon submission
of one of the designated forms of proof.
9
We recognize that L.C.'s attorney asserted that L.C. was twice
turned down for domestic violence restraining orders. However,
particularly on this record, that would not preclude L.C.'s
claim of victimization in the context of her unemployment
insurance claim. We have previously held that a plaintiff who
(continued)
26 A-5997-12T2
2.
As enacted, the 1999 Law requires an indirect, two-stage
causation analysis. The legislation's drafters recognized that
being a victim of domestic violence will create circumstances
(stage one), which in turn may lead to separation from work
(stage two). Also, the focus is not on the act of domestic
violence as the initiating cause, but, one step removed, the
claimant's "being a victim of domestic violence." N.J.S.A.
43:21-5(j). The claimant need prove that he or she left work,
or was discharged, "due to circumstances" which in turn
"result[ed] from . . . being a victim." Ibid. By its plain
language, the causal connection may be indirect. Thus, one
would interpret the statute too narrowly to conclude that a quit
for financial reasons is necessarily insufficient. Financial
reasons may arise out of being a victim of domestic violence —
(continued)
has prevailed in a domestic violence action may not apply the
doctrine of collateral estoppel to bar the relitigation of the
issues in a subsequent personal injury action against the same
defendant. L.T. v. F.M., 438 N.J. Super. 76, 86-89 (App. Div.
2014). In L.T., we considered, among other factors, the summary
nature of the domestic violence proceeding, the lack of
discovery, and lack of counsel, as weighing against application
of the doctrine. Id. at 87-89. In this case, the record does
not reflect whether L.C. was turned down after a hearing;
whether the denial of the restraining order was based on an
adverse determination on the issue of whether a predicate act
was committed, or was based on other considerations pertaining
to relief; or, whether L.C. alleges acts of domestic violence
committed after the prior adverse determinations.
27 A-5997-12T2
for example, where a domestic violence victim is compelled to
terminate a financially supportive but abusive relationship.
We draw some support for this interpretation from the
legislative history. As introduced in the Senate and Assembly,
the legislation consisted of only the first two sentences of the
statute ultimately enacted, with one significant difference
pertaining to the causation element. The bill stated:
Notwithstanding any other provisions of this
chapter (R.S.43:21-1 et seq.), no otherwise
eligible individual shall be denied benefits
because the individual left work or was
discharged due to circumstances directly
resulting from the individual being a victim
of domestic violence as defined in section 3
of P.L.1991, c.261 (C.2C:25-19). No
employer's account shall be charged for the
payment of benefits to an individual who
left work due to circumstances directly
resulting from the individual being a victim
of domestic violence.
[Senate Bill No. 869, 208th Legislature,
(March 19, 1998) (emphasis added).]
See also Assembly Bill No. 2366, 208th Legislature (September
14, 1998). As amended, the word "directly" was removed. The
committee statement explained the amendment was intended "to
delete the requirement for qualification under the bill that the
circumstances 'directly' result from domestic violence . . . ."
Senate Women's Issues, Children and Family Servs. Comm.
Statement to Senate Bill No. 869, 208th Legislature (May 20,
1999).
28 A-5997-12T2
A person may quit a job for multiple causes, including, but
not limited to, being a victim of domestic violence. For
example, as a result of being a victim of domestic violence, a
person may decide to move some distance from the abuser; but, as
a result, the commute to work may become burdensome, leading the
person to quit his or her job. Consistent with the remedial
purpose of the statute, we conclude that being a victim of
domestic violence need not be the sole factor in the quit or
discharge. Rather, it suffices if being a victim of domestic
violence resulted in circumstances that were a substantial
factor in causing a claimant's decision to resign. See E.C. v.
RCM of Wash., Inc., 92 A.3d 305, 309 (D.C. 2014) (stating that
domestic violence must be a "substantial factor" to satisfy the
causation element of D.C. Code § 51-131(a), which authorizes
benefits when an "individual was separated from employment by
discharge or voluntary or involuntary resignation due to
domestic violence against the individual").
D.
In light of the foregoing principles, we conclude L.C.'s
attorney was qualified to provide documentation or certification
of domestic violence, since he assisted her in dealing with
multiple acts of domestic violence. Contrary to the Board's
argument that counsel's letter "makes no mention of domestic
29 A-5997-12T2
violence," counsel catalogued various incidents that satisfy the
definition of acts of domestic violence under the PDVA, N.J.S.A.
2C:25-19. These include criminal mischief, see N.J.S.A. 2C:25-
19(a)(10), N.J.S.A. 2C:17-3, based on L.C.'s husband's damage to
her domestic appliance, and her vehicle; and stalking, see
N.J.S.A. 2C:25-19(a)(14), N.J.S.A. 2C:12-10. Counsel also
described acts of harassment, see N.J.S.A. 2C:25-19(a)(13),
N.J.S.A. 2C:33-4, based on her husband's repeated communications
in an "offensively coarse language . . . likely to cause
annoyance or alarm," N.J.S.A. 2C:33-4(a), and his repeated acts
designed "to alarm or seriously annoy" her, N.J.S.A. 2C:33-4(c),
such as turning off the heat, cutting telephone and cable wires,
throwing her clothes, making false accusations, and promoting
disrespectful behavior by their children.
In view of our clarification of the form of proof to be
provided under N.J.S.A. 43:21-5(j)(6), L.C. should have the
opportunity on remand to provide a "certification of the
domestic violence" from her attorney instead of the unsworn
letter she submitted to the Tribunal. Alternatively, she may
submit writings provided by her attorney and created during his
representation, if they document domestic violence.
It is also apparent that the Tribunal applied a more
demanding standard of causation than prescribed by the 1999 Law.
30 A-5997-12T2
The appeals examiner advised L.C. that she needed to demonstrate
a "direct connection" between her relocation and domestic
violence. As we have discussed, the connection between domestic
violence and the separation from work may be indirect, so long
as being a victim of domestic violence resulted in circumstances
that were a substantial factor in causing a claimant's decision
to resign. On remand, assuming L.C. provides satisfactory proof
of victimization, the Board shall apply this standard of
causation to determine whether L.C. "left work . . . due to
circumstances resulting from . . . [her] being a victim of
domestic violence . . . ." See N.J.S.A. 43:21-5(j).
Reversed and remanded. We do not retain jurisdiction.
31 A-5997-12T2