Casey Piatt v. Police and Firemen's Retirement

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5504-12T1

CASEY PIATT, BRUCE DAVIS,

TAMMY DAVIS, MICHAEL CORTES,

JOHN R. FALZONE, MADELINE McKENZIE,

TERRY BOWEN, FRED SIENA, BRUCE

VANMETER, KEVIN CARTER, MARK

APPROVED FOR PUBLICATION

MEZIS, STEVEN DAVIS, FRED

PIERCE, JR., JONATHAN JESTER, November 18, 2015

VINCENT WOODRUFF, EDWARD POMPPER,

ROBERT BROBST, CHESTER OGDEN, APPELLATE DIVISION

BRIAN TRUXTON, DAWN COSSABOON,

ANTHONY MADDEN, JAMES ROSS,

JAMES PITTMAN, JOSE L.

DeLaTORRE, JOHN L. MURRAY,

GREGORY W. WILLIAMS, DENNIS

TURNER, GERALDINE COX, EVA SOOY,

JOSEPH KARKOCHA, LINDA SCYTHES,

ALICE B. POYNTOS, CHARLES BURKHART,

BRIAN HORNER, JAMES SMITH, FARZIN

AFSHARKHAH, JOSEPH RAWS, SAMUEL

CROWE, CHRIS CLINE, RAY DILKS,

FRANK SPENCE, ROBERT W. MUSSO,

RONALD DOWNS, ANNIE STREET, JERE

GRIFFITH, RICARDO S. BASA,

BILLY WHILDON, JOHN CALDWELL,

MICHELLE DEVITO, EDMOND READ,

MICHAEL POLOFF, EDWIN DIAZ,

WAYNE PEARSON, CLYDE KOERNER,

GWENDOLYN STREET, LORENZO L. HARRIS,

BRIAN K. HILL, JAMES H. WILDEN, JR.,

DARLENE HOLT, EDWARD C. LeMATTY, III,

ALFRED PIERCE, RICHARD HAWN, ANGELO

GALARZA, DONNIE TOMLIN, MARVIN L.

JOHNSON, BILL FOWLER, JACK B.

SIMPKINS, DOUG DelCOLLO, RON SLADE,

RICK ROBBINS, WILLIAM WHILDIN, JOE

CAMBURN, DAN HAYES, THOMAS PLUTA,

MARK LATTANZI, MICHAEL SCATES,

DANIEL PIATT, CHRIS LEE, L.

SANFILIPPO, LAWRENCE DUSKI, DENNIS A.

GUNN, RIGOBERTO GONZALEZ, DAVID

PRICE, PAMELA BROWN-DAIRSOW,

PATRICIA WHITE, RANDELL BYERS,

LISA WRIGHT, ALBERT RIVERA, JAMES

HARROLD, GEORGE O. McCONNELL,

LARRY SAUL, GLENN CHAPMAN, ESTTE

KINZEL, ROBERT BRENNER, ISRAEL

REYES, EDWIN M. ZAYAS, EVEANNE M.

STINSON, and FRANK MANTEGNA,

Plaintiffs-Appellants,

v.

POLICE AND FIREMEN'S RETIREMENT

SYSTEM, NEW JERSEY DEPARTMENT

OF CORRECTIONS, and STATE OF NEW

JERSEY,

Defendants-Respondents.

_______________________________________

Argued April 13, 2015 – Decided November 18, 2015

Before Judges Sabatino, Guadagno and Leone.

On appeal from the Superior Court of New

Jersey, Law Division, Mercer County, Docket

No. L-44-11.

Mario A. Iavicoli argued the cause for

appellants.

Jeff S. Ignatowitz, Deputy Attorney General,

argued the cause for respondents (John J.

Hoffman, Acting Attorney General, attorney;

Melissa H. Raksa, Assistant Attorney General,

of counsel; Mr. Ignatowitz, on the brief).

The opinion of the court was delivered by

LEONE, J.A.D.

2 A-5504-12T1

Plaintiffs are State corrections officers employed by

defendants, the New Jersey Department of Corrections and the

State of New Jersey (collectively "NJDOC"). NJDOC hired

plaintiffs as corrections officers after they turned thirty-five

years old. As a result, plaintiffs were enrolled in the Public

Employees Retirement System (PERS). Plaintiffs filed a

complaint claiming they should be transferred to defendant, the

Police and Firemen's Retirement System (PFRS), which has

generally higher benefits but which also restricts initial

enrollment to those not over thirty-five. N.J.S.A. 43:16A-3;

N.J.A.C. 17:4-2.5(a). Judge Phillip S. Carchman dismissed

plaintiffs' complaint with prejudice.

Plaintiffs appeal, claiming that the PFRS thirty-five-year

age limitation cannot be applied to State corrections officers.

However, the long history of PFRS makes clear that the

Legislature intends to restrict PFRS membership to a person who

is "not over 35 years" when he or she becomes a "policeman" or

"fireman." N.J.S.A. 43:16A-3. The Legislature has expanded the

definition of "policeman" to include a State corrections officer

and, with only brief exceptions not applicable here, has

mandated that they meet the age requirement for eligibility set

for all PFRS members. That requirement serves the Legislature's

goals of using PFRS's heightened benefits to encourage persons

3 A-5504-12T1

to become officers while young and relatively fit, and to retire

at a relatively early age. Moreover, the PFRS Board, by

regulation, has properly applied this construction of the PFRS

Act for more than forty years. See N.J.A.C. 17:4-2.5(a).

Finally, we reject plaintiffs' constitutional challenges for

substantially the same reasons given by Judge Carchman.

Accordingly, we affirm.

I.

In 2003, plaintiff Casey Piatt and sixty-two other

plaintiffs filed a complaint in federal district court,

challenging the application of the age restriction to

corrections officers under the federal Employee Retirement

Income Security Act (ERISA), 29 U.S.C.A. §§ 1001-1461, the New

Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,

and contract law. Akers, et al. v. State of New Jersey, et al.,

Civ. No. 03-3920 (D.N.J.).1 The court dismissed Piatt's ERISA

claim because ERISA did not apply to governmental pension plans,

and dismissed without prejudice his remaining state-law claims.

Ibid. (Aug. 26, 2005).2

1

The court dismissed all plaintiffs except for Piatt for failure

to prosecute their claims after their counsel died while the

federal lawsuit was pending. Ibid. (Jun. 27, 2005).

2

See 29 U.S.C.A. § 1002(32), 1003(b)(1); see also N.J.S.A. 10:5-

2.1 (providing that New Jersey's LAD does not "interfere with

(continued)

4 A-5504-12T1

In 2010, Piatt and ninety-seven other plaintiffs filed a

complaint in the Law Division in Camden County. Plaintiffs

complained that when they were hired as corrections officers by

NJDOC, they were enrolled in PERS rather than PFRS because they

exceeded the maximum age limit for admittance into PFRS. They

claimed the age limit of thirty-five in N.J.S.A. 43:16A-3 and

N.J.A.C. 17:4-2.5(a) did not apply to them and, even if it did,

was arbitrary, capricious, unreasonable, void, and

unconstitutional. They demanded they be transferred into PFRS

retroactive to the first day of their employment, with no

assessment of the additional contributions they would have paid

if they had been in PFRS during that period.

After defendants answered the complaint, the action was

transferred to Mercer County.3 Plaintiffs filed a motion for

partial summary judgment. Defendants filed a cross-motion for

summary judgment.

After hearing two days of oral argument, Judge Carchman

issued a twenty-five-page oral opinion on May 29, 2013. In the

(continued)

the operation of the terms or conditions and administration of

. . . any State or locally administered public retirement

system").

3

Prior to Judge Carchman's involvement, a Law Division judge

dismissed thirty-seven plaintiffs, finding res judicata based on

their dismissal from the federal lawsuit for failure to

prosecute.

5 A-5504-12T1

course of his opinion, Judge Carchman pointed out that the

pension benefits of PFRS are greater than those of PERS in part

because employees must contribute more per paycheck to PFRS than

PERS. The court found at least two reasons why the public

interest would require corrections officers to be appointed

before age thirty-five in order to enroll in PFRS:

First, restricting enrollment in this way

benefits the public fiscally as fewer

individuals are permitted to enroll, and

secondly, and perhaps more importantly, this

restriction benefits public safety as it

provides an incentive for individuals to

become corrections officers earlier in their

career and to be able to retire earlier[,]

allowing for what has been statistically

established as a more fit and higher energy

workforce.

By order dated June 5, 2013, Judge Carchman denied plaintiffs'

motion, granted defendants' motion for summary judgment, and

dismissed the complaint with prejudice.

II.

Plaintiffs appeal the grant of summary judgment. Summary

judgment must be granted if the court determines "that there is

no genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of

law." R. 4:46-2(c); accord Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 539-40 (1995). The summary judgment motions

here addressed the applicability of the age limit in N.J.S.A.

6 A-5504-12T1

43:16A-3, and the validity of the age limit in N.J.A.C. 17:4-

2.5(a). "A ruling on summary judgment is reviewed de novo. We

thus 'apply the same standard governing the trial court,' and do

not defer to the trial court's . . . interpretation of 'the

meaning of a statute'" or the validity of a regulation. Davis

v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014)

(citations omitted). We must hew to that standard of review.

III.

To properly address plaintiffs' claims, we review the

statutory and regulatory history of the age limit, and of the

inclusion of corrections officers as "policemen" under the PFRS

Act, N.J.S.A. 43:16A-1 to -68.

The PFRS Act was originally adopted in 1944. L. 1944, c.

255. It established a retirement system "for policemen and

firemen." N.J.S.A. 43:16A-2. The PFRS Act originally required

applicants to PFRS to be appointed to their position by age

thirty. Seire v. Police & Fire Pension Comm'n, 6 N.J. 586, 590

(1951); Bashwiner v. Police & Firemen's Ret. Sys., 68 N.J.

Super. 1, 5 (App. Div. 1961). In 1968, that limit was raised to

not over thirty-five years old. Simon v. Bd. of Trs., Police &

Firemen's Ret. Sys., 233 N.J. Super. 186, 190 (App. Div.),

certif. denied, 177 N.J. 652 (1989). Since 1968, the PFRS Act

has provided that "any person becoming a full-time policeman or

7 A-5504-12T1

fireman . . . shall become a member of this retirement system as

a condition of his employment; he will be enrolled provided,

that his age at becoming such full-time policeman or fireman is

not over 35 years[.]" N.J.S.A. 43:16A-3(1).4

The PFRS Act allows the PFRS Board of Trustees to establish

rules and regulations. N.J.S.A. 43:16A-13(a)(7). In 1971, the

PFRS Board of Trustees adopted a regulation, entitled "age

requirements," providing that "[a]pplicants are subject to a

maximum age requirement which is 35 years." N.J.A.C. 17:4-

2.5(a) (1971). Since 1983, the regulation has provided that all

applicants to PFRS "must be appointed to an eligible title on or

prior to their 35th birthday." N.J.A.C. 17:4-2.5(a); see

Sellers v. Bd. of Trs. of the Police & Firemen's Ret. Sys., 399

N.J. Super. 51, 53 (App. Div. 2008) (applying N.J.A.C. 17:4-

2.5(a)).

The Legislature repeatedly amended the definitions of

"policeman" and "fireman" in N.J.S.A. 43:16A-1 to make

additional titles covered by PFRS. Kossup v. Bd. of Trs.,

Police & Fireman's Ret. Sys., 372 N.J. Super. 468, 475 (App.

Div. 2004). For many years, the definition of "policeman" did

not include State corrections officers. See Koschker v. Bd. of

4

The same limitation appears in N.J.S.A. 43:16A-3(2), which

governs a "county, municipality, or political subdivision

thereof" that adopts PFRS by referendum.

8 A-5504-12T1

Trs., Police & Firemen's Ret. Sys., 233 N.J. Super. 209, 211

(App. Div. 1989). The Legislature passed a supplementary act in

1973 allowing certain State corrections officers to enroll in

PFRS by adding their titles to N.J.S.A. 43:16A-1. See id. at

212 (citing L. 1973, c. 156, § 1); Allen v. Bd. of Trs., Police

& Firemen's Ret. Sys., 233 N.J. Super. 197, 200 (App. Div. 1989)

(same). The 1973 supplementary act also added N.J.S.A. 43:16A-

62, which states:

Eligibility for membership in the Police and

Firemen's Retirement System of New Jersey

shall be extended to all active, permanent

and full-time officer employees of the State

of New Jersey with police powers and holding

one of the titles cited in section 1 of

P.L.1944, c. 255 ([N.J.S.A.] 43:16A-1) who

are otherwise eligible in accordance with

the provisions of this act.

Also under the 1973 supplementary act, State corrections

officers "then enrolled in PERS were offered a one-time

opportunity to transfer their retirement fund membership to PFRS

without cost and without regard to age" if they did so within

ninety days. Koschker, supra, 233 N.J. Super. at 212 (citing L.

1973, c. 156, § 4 (codified at N.J.S.A. 43:16A-63(a))).

The 1973 supplementary act "did not, however, abolish the

35 year entry-age limitation; it was merely suspended. After

the 90 day 'window of opportunity' elapsed, enrollment in PFRS

was again limited to employees 35 years old or younger." Ibid.

9 A-5504-12T1

Indeed, a 1975 amendment to the 1973 supplementary act provided

that:

Each new officer who begins employment

following the effective date of this 1975

amendatory and supplementary act, shall be

required to enroll in the Police and

Firemen's Retirement System of New Jersey as

a condition of employment, provided he is

otherwise eligible for membership by meeting

the appointment, age, and health

prescriptions required of all members.

[N.J.S.A. 43:16A-63(b) (emphasis added).]

A confused period of changing laws and interpretations

followed the application to the States of the federal Age

Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621-34.

See Sellers, supra, 399 N.J. Super. at 55-57 & n.1; Koschker,

supra, 233 N.J. Super. at 214-15. However, first temporarily

and then permanently, ibid., Congress amended the ADEA to allow

States to use age as a criteria for hiring "law enforcement

officer[s]." 29 U.S.C.A. § 623(j). This resulted in the

renewed enforcement of the thirty-five-year age limit for

eligibility for PFRS. Sellers, supra, 399 N.J. Super. at 56.

Indeed, in Allen and Koschker, we premised our decisions on

the applicability of the thirty-five-year age limit to

corrections officers. In Allen, we noted that, although Allen

was appointed to a PFRS-eligible position as a State corrections

officer, he "was not age-eligible to join PFRS because employees

10 A-5504-12T1

over 35 were not permitted to join PFRS." Allen, supra, 233

N.J. Super. at 202 (citing N.J.S.A. 43:16A-3).5 In Koschker, we

similarly noted that the plaintiffs' positions as State

corrections officers were made eligible for PFRS in the 1973

supplementary act because they "were over 35 at the time of the

1973 enactment." Koschker, supra, 233 N.J. Super. at 212.

Because the plaintiffs failed to take advantage of the

opportunity provided by the 1973 supplementary act to transfer

into PFRS regardless of age, we held they were ineligible for

PFRS because "enrollment in PFRS was again limited to employees

35 years old or younger." Id. at 218-19.

In 1989, the Legislature "eliminated the prior definition

of policeman [under N.J.S.A. 43:16A-1] which consisted of a list

of diverse job titles, and replaced it with 'prescribed

fundamental criteria.'" Matter of Eligibility of Certain

Assistant Union County Prosecutors to Transfer to PFRS under

N.J.S.A. 43:16A-1 et seq., 301 N.J. Super. 551, 559 (App. Div.

1997) [hereinafter "Prosecutors"] (quoting Senate State Gov't

Comm., Statement to S. 2602, at 1 (June 23, 1988)). The 1989

amendment rewrote N.J.S.A. 43:16A-1 to provide only two eligible

5

Because Allen was appointed during one of the periods where the

age limit was considered invalid under the ADEA, he was entitled

to relief provided such persons under the former N.J.A.C. 17:1-

12.7. Allen, supra, 233 N.J. Super. at 208-09; see Simon,

supra, 233 N.J. Super. at 191.

11 A-5504-12T1

titles, "policeman" and "fireman." N.J.S.A. 43:16A-2(a)(2).

The 1989 amendment also made clear that to be a "member" of

PFRS, a person had to be a "policeman or fireman included in the

membership of the retirement system pursuant to this amendatory

and supplementary act." N.J.S.A. 43:16A-1(3).6

The 1989 amendment provided a functional definition of a

"policeman" which logically if not explicitly would include a

State corrections officer:

"Policeman" shall mean a permanent, full-

time employee of a law enforcement unit as

defined in section 2 of P.L.1961, c.56

(C.52:17B-67) or the State, other than an

officer or trooper of the Division of State

Police whose position is covered by the

State Police Retirement System, whose

primary duties include the investigation,

apprehension or detention of persons

suspected or convicted of violating the

criminal laws of the State and who:

(i) is authorized to carry a firearm

while engaged in the actual performance of

his official duties;

(ii) has police powers;

(iii) is required to complete

successfully the training requirements

prescribed by P.L.1961, c.56 (C.52:17B-66 et

seq.) or comparable training requirements as

determined by the board of trustees; and

6

The 1989 amendment also required the Board to "review the

positions of all members" to determine if each "position shall

continue to be covered under the retirement system based upon

the definitions of 'policeman' and 'fireman' in this act."

N.J.S.A. 43:16A-1.2(a), (b).

12 A-5504-12T1

(iv) is subject to the physical and

mental fitness requirements applicable to

the position of municipal police officer

established by an agency authorized to

establish these requirements on a Statewide

basis, or comparable physical and mental

fitness requirements as determined by the

board of trustees.

[N.J.S.A. 43:16A-1(2)(a) (emphasis added).]

Finally, the 1989 amendment made clear that "[n]othing in

this amendatory and supplementary act shall be construed as

authorizing" the "enrollment in the retirement system of any

person who was ineligible for membership" previously. N.J.S.A.

43:16A-1.2(c).

The 1989 amendment "was part of a series of amendatory laws

intended to increase the retirement allowance of police officers

and firefighters[,] and restrict and reduce membership in PFRS"

to pay for those increased benefits. Prosecutors, supra, 301

N.J. Super. at 559. To meet that goal, the Legislature stressed

the importance of the requirement that persons seeking to enroll

in PFRS be appointed by the age of thirty-five:

The articulated objective was to encourage

police officers and firefighters to

"retire[] at a younger age, in order to

protect the public." It was said in the

legislative hearings that police officers

and firefighters were to be given enhanced

benefits "because the nature of [their]

duties . . . requir[ed] a level of physical

attributes [and energy] which [are] found,

statistically speaking, among younger

members." The underlying idea was to

13 A-5504-12T1

"facilitate" early retirement and "turnover

within the system" by "giv[ing] better

benefits."

[Id. at 559-60 (quoting Hearing on S. 2602

Before the Assembly State Gov't Comm., 203rd

Legis., 2d Sess., at 18 (Feb. 6, 1989)

(Statement of Douglas Forrester, Director,

Div. of Pensions)) (alterations in

original).]

We have found that the 1989 amendment's "acknowledged

purpose [was] to restrict eligibility and to reserve to the

young and the fit active roles in police and firefighter

activities." Id. at 560. Indeed, the 1989 amendment, like the

1973 supplementary act, required that a person employed in a

position subsequently "covered by the retirement system is

required to enroll in the retirement system as a condition of

employment, provided the person is otherwise eligible for

membership by meeting the appointment, age and health

requirements prescribed for all members." N.J.S.A. 43:16A-

1.2(b) (emphasis added); see N.J.S.A. 43:16A-63(b).

In 1993, the Legislature passed another supplementary act

providing that "any correction officer . . . employed on the

effective date of this supplementary act in the Department of

Corrections who is enrolled in PERS" was "eligible, regardless

of age," to "transfer membership from PERS to PFRS . . . by

waiving, within 90 days of the effective date of this

supplementary act, all" PERS benefits. N.J.S.A. 43:16A-3.8(a),

14 A-5504-12T1

(a)(4), (b). "If an eligible person does not file a timely

waiver of PERS benefits, the person's pension status shall

remain unchanged and the person's membership shall not be

transferred to PFRS." N.J.S.A. 43:16A-3.8(b).

This 1993 supplementary act was an exception that proves

the rule governing current State corrections officers such as

plaintiffs. The language and history of the PFRS Act shows that

the thirty-five-year age limit long enshrined in N.J.S.A.

43:16A-3 and N.J.A.C. 17:4-2.5(a) applies to all persons

eligible for PFRS because they fall within N.J.S.A. 43:16A-1's

definitions of "policeman" and "fireman." That includes State

corrections officers, as we indicated in Allen and Koschker.

IV.

Plaintiffs argue that there is no statute that explicitly

requires that State corrections officers, when appointed, must

be no older than thirty-five to be eligible for PFRS. To the

contrary, that limitation is set forth in the same operative

provision of the PFRS Act which makes any qualifying person "a

member in this retirement system," namely N.J.S.A. 43:16A-3.

As set forth above, PFRS pensions are available only to a

"policeman or fireman." N.J.S.A. 43:16A-3; see N.J.S.A. 43:16A-

2 (creating a retirement system for "policemen and firemen").

Because N.J.S.A. 43:16A-3 only allows a person to enroll in PFRS

15 A-5504-12T1

"provided, that his age at becoming such full-time policeman or

fireman is not over 35 years," a State corrections officer is

barred by statute from enrolling unless he meets that limit.

Plaintiffs argue that they are law enforcement employees,

and that it is "[t]he definition of 'policeman' in N.J.S.A.

43:16A-1(2) [which] identifies those law enforcement employees

who are to be admitted to the PFRS." N.J.S.A. 43:16A-1(2) does

identify which persons hold a position that is eligible for

admission to PFRS. Ibid. (providing, after the 1989 amendment,

only two eligible titles: "policeman" and "fireman"); see also

N.J.S.A. 43:16A-62 (requiring that a State officer must be

"holding one of the titles cited in" N.J.S.A. 43:16A-1 to be

eligible for PFRS). However, it is N.J.S.A. 43:16A-3 that

provides that a "policeman or fireman . . . shall become a

member of this retirement system." Thus, a State corrections

officer, like any other "policeman," must meet the age

requirement of N.J.S.A. 43:16A-3 to be enrolled in PFRS.

Moreover, both the 1975 and 1989 amendments expressly

provided that each new officer must be "otherwise eligible for

membership by meeting the . . . age . . . requirements

prescribed for all members." N.J.S.A. 43:16A-1.2(b); see

N.J.S.A. 43:16A-63(b). Both the 1993 amendment and the 1973

supplementary act confirmed that the age limit applies to State

16 A-5504-12T1

corrections officers by providing one-time exceptions allowing

"any correction officer . . . in the Department of Corrections"

to transfer to PFRS "regardless of age." N.J.S.A. 43:16A-

3.8(a)(4), (b); see Koschker, supra, 233 N.J. Super. at 212. As

Judge Carchman found, these provisions "indicate a legislative

intent" that the thirty-five-year-old age limit applies "to a

broader swath of PFSR individuals than local police and

firemen."

Plaintiffs cite language in N.J.S.A. 43:16A-3(1) that

provides PFRS membership to any person who is a full-time

policeman or fireman "in a county or municipality or fire

district located in a township," without mentioning State

officers. N.J.S.A. 43:16A-3(1). However, the Legislature has

not opted to change who is eligible for PFRS by amending the

quoted language from N.J.S.A. 43:16A-3, which has gone unchanged

since 1944. See Seire, supra, 6 N.J. at 590. Rather, as set

forth above, the Legislature has chosen to change who is

eligible for PFRS membership by amending the definitions of

"policeman" and "fireman" in N.J.S.A. 43:16A-1.

The Legislature repeatedly, over many decades, added State

job titles to those definitions, and then in 1989 included any

law enforcement employee of "the State" as a "policeman," and

any employee of a firefighting unit of "the State" as a

17 A-5504-12T1

"fireman." N.J.S.A. 43:16A-1(2)(a), (b). To read N.J.S.A.

43:16A-3 to apply only to a "policeman" or "fireman" employed by

a county, municipality, or fire district would improperly render

all of those amendments a nullity. State v. Terry, 218 N.J.

224, 237 (2014). "[I]t is well-established that a statute

should not be construed in a manner that renders any portion of

it a nullity." Smith v. Dir., Div. of Taxation, 108 N.J. 19, 27

(1987).

We cannot ignore the Legislature's inclusion of State

employees in the definition of "policeman" and "fireman" in

N.J.S.A. 43:16A-1(2), and the Legislature's use of those defined

terms to determine membership in PFRS under N.J.S.A. 43:16A-

3(1). While it would have been clearer for the Legislature also

to add the words "the State" to the quoted language in N.J.S.A.

43:16A-3 to reflect the addition of State employees through the

defined terms, the absence of those clarifying words cannot

thwart the Legislature's obvious intent to include eligible

State officers as members in PFRS, provided they meet its

criteria.

Thus, we read N.J.S.A. 43:16A-3(1) to include as members of

PFRS all qualified persons who fall within the definition of

"policeman" and "fireman" in N.J.S.A. 43:16A-1(2), whether they

are employed by the State, county, municipality, or fire

18 A-5504-12T1

district in a township. This reading prevents from being

surplusage the language in N.J.S.A. 43:16A-1(2) including State

officers within those definitions.

Moreover, our reading does not render redundant the quoted

language in N.J.S.A. 43:16A-3(1), because it differentiates its

two subsections. N.J.S.A. 43:16A-3(1) makes PFRS membership

available in "a county or municipality or fire district located

in a township" where a pension for policemen and firemen had

been established "prior to the date [the PFRS] act takes

effect," whereas N.J.S.A. 43:16A-3(2) makes PFRS membership

available in "any county, municipality or political subdivision

thereof" where the PFRS act subsequently becomes effective

pursuant to a referendum.

"'When interpreting different statutory provisions, we are

obligated to make every effort to harmonize them, even if they

are in apparent conflict.'" St. Peter's Univ. Hosp. v. Lacy,

185 N.J. 1, 14 (2005) (quoting In re Gray-Sadler, 164 N.J. 468,

485 (2000) (finding one statute's instruction to provide a

benefit qualified by a proviso in another statute)). We have

"'an affirmative duty to reconcile them, so as to give effect to

both expressions of the lawmakers' will.'" Ibid. (citation

omitted).

19 A-5504-12T1

Here, for more than seventy years, it has been the purpose

of the PFRS Act to restrict membership to a person becoming a

"policeman" or "fireman" when they are youthful, and currently

"not over 35 years." N.J.S.A. 43:16A-3(1). The Legislature has

been constant in enforcing that rule, with only brief exceptions

when it allowed short windows for transfer when PFRS was

extended to new classes of employees under the 1973, 1989, and

1993 supplementary acts.

The obvious reasons for restricting the age of enrollment

were reiterated by the Legislature in its 1989 amendment, which

incorporated State corrections officers into the current

definition of "policeman." The Legislature's "acknowledged

purpose [was] to restrict eligibility and to reserve to the

young and the fit active roles in police and firefighter

activities." Prosecutors, supra, 301 N.J. Super. at 560

(upholding the exclusion of assistant county prosecutors from

PFRS).

The Legislature's purpose is achieved by reading the

Legislature's acts and amendments as making eligible for PFRS

only those persons who become State corrections officers when

they are not over thirty-five. As Judge Carchman observed, the

Legislature imposed this requirement to encourage persons to

become State corrections officers when they have "'a level of

20 A-5504-12T1

physical attributes [and energy] which [are] found,

statistically speaking, among younger members.'" Id. at 559

(quoting Hearing on S. 2602 Before the Assembly State Gov't

Comm., 203rd Legis., 2d Sess., at 18 (Feb. 6, 1989) (Statement

of Douglas Forrester, Director, Div. of Pensions)). Thus

encouraging persons to start their career as State corrections

officers earlier also serves "to 'facilitate' early retirement

and 'turnover within the system.'" Id. at 560 (same). See

N.J.S.A. 43:16A-5 (permitting PFRS members to retire at age

fifty-five if they have twenty or more years of service). 7

Finally, by restricting PFRS benefits to those who become State

corrections officers earlier in life, it restricts eligibility,

thus both "'protect[ing] the public'" fiscally and "giv[ing]

better benefits" to those persons who begin their service at a

younger age. Id. at 559-60 (same).

Plaintiffs argue that municipal firefighters and police

officers cannot be hired if they are "over 35 years of age,"

N.J.S.A. 40A:14-12, -127, and that they have more vigorous jobs

than corrections officers, who can be hired without such an age

restriction. However, those arguments support refusing to make

all corrections officers eligible for PFRS, and restricting PFRS

7

Plaintiffs note PFRS members are not required to retire until

they turn sixty-five. N.J.S.A. 43:16A-5(1). That does not

alter the legislative purpose to encourage earlier retirement.

21 A-5504-12T1

eligibility to those persons who become corrections officers at

a young age, bringing to the position the youthful vitality for

which PFRS's higher benefits provide compensation, and

encouraging the early retirement and turnover that PFRS seeks to

elicit. Moreover, the Legislature can chose to limit PFRS

eligibility even if it does not preclude the hiring of older

persons.

Finally, plaintiffs argue that excluding from PFRS those

persons who become State corrections officers when over thirty-

five is contrary to the requirement that a "policeman" or

"fireman" become a member of PFRS "as a condition of his

employment." N.J.S.A. 42:16A-3(1). However, the Legislature

qualified that phrase in N.J.S.A. 42:16A-3(1) with the proviso

that "his age at becoming such full-time policeman or fireman is

not over 35 years." Ibid. The Legislature similarly qualified

the "condition of his employment" phrase in N.J.S.A. 43:16A-

1.2(b) and -63(b) with the proviso that "the person is otherwise

eligible for membership by meeting the . . . age" requirements.

Ibid. As we stated in Allen, a person who becomes a State

corrections officer after age thirty-five, "[a]lthough job-

22 A-5504-12T1

eligible, [is] not age eligible" for PFRS. Allen, supra, 233

N.J. Super. at 208.8

V.

"Our construction of the statute is also supported by the

long-standing administrative practice and interpretation of the

Division of Pensions." Prosecutors, supra, 301 N.J. Super. at

561. For more than four decades, the PFRS Board's regulation

interpreting these statutes has provided that all applicants for

PFRS membership must be no older than thirty-five. N.J.A.C.

17:4-2.5(a). The Board's longstanding regulation that

applicants "must be appointed to an eligible title on or prior

to their 35th birthday," ibid., adopts the interpretation which

best fits the statutory history, language, and purpose, as set

forth above. The Board's interpretation particularly accords

with the Legislature's directions in the 1975 and 1989

amendments that a person in a position covered by PFRS is

eligible for PFRS only if the person meets the "age"

requirements prescribed "for all members." N.J.S.A. 43:16A-

1.2(b); N.J.S.A. 43:16A-63(b).

8

Because we find persons who become State corrections officers

over age thirty-five are statutorily ineligible for membership

in PFRS, we need not address defendants' argument that this

interpretation is also supported by consideration of mandatory

retirement ages.

23 A-5504-12T1

"'An administrative agency's interpretation of a statute it

is charged with enforcing is entitled to great weight.'"

Prosecutors, supra, 301 N.J. Super. at 561 (quoting In re Saddle

River, 71 N.J. 14, 24 (1976)); accord In re Freshwater Wetlands

Prot. Act Rules, 180 N.J. 415, 431 (2004). "'[W]e must give

great deference to an agency's interpretation and implementation

of its rules enforcing the statutes for which it is

responsible.'" St. Peter's, supra, 185 N.J. at 13 (quoting In

re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489

(2004)). Such deference has been specifically extended to state

agencies that administer pension statutes. See, e.g.,

Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192

N.J. 189, 196 (2007). "This deference comes from the

understanding that a state agency brings experience and

specialized knowledge to its task of administering and

regulating a legislative enactment within its field of

expertise." In re Election Law Enf't Comm'n Advisory Op. No.

01-2008, 201 N.J. 254, 262 (2010) (citing Kasper v. Bd. of Trs.

of the Teachers' Pension & Annuity Fund, 164 N.J. 564, 580-81

(2000)).

Our deference is even greater because the Board has

followed this interpretation for more than four decades. "Such

continued interpretation and practice by the agency which

24 A-5504-12T1

administers a statute is entitled to great weight." Szczepanik

v. State, Dept. of Treasury, Div. of Pensions, Public Emps.'

Ret. Sys., 232 N.J. Super. 491, 504 (App. Div. 1989). Moreover,

"the fact that the Legislature has not acted in response to an

agency's interpretation or practice is 'granted great weight as

evidence of its conformity with the legislative intent.'" Klumb

v. Bd. of Educ. of Manalapan-Englishtown Reg'l High Sch. Dist.,

199 N.J. 14, 24-25 (2009) (citation omitted). Indeed, as Judge

Carchman pointed out, the regulation's age limit "has been

impliedly accepted by the Legislature in its temporary

suspension[s] of the age limit" in 1973, 1989, and 1993. We

give "'great weight'" to "the Legislature's apparent

acquiescence" in, and "longstanding acceptance" of, the Board's

interpretation. Matturri v. Bd. of Trs. of the Judicial Ret.

Sys., 173 N.J. 368, 382 (2002) (citation omitted).

Plaintiffs challenge the validity of the Board's

regulation. However, "regulations promulgated by an agency in

furtherance of a statutory scheme it is charged with enforcing

are presumed to be valid." Election Law Enf't Comm'n, supra,

201 N.J. at 262. "'[T]he agency's interpretation of the

operative law is entitled to prevail, so long as it is not

plainly unreasonable.'" Prosecutors, supra, 301 N.J. Super. at

25 A-5504-12T1

561 (quoting Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J.

313, 327 (1984)).

Plaintiffs claim that N.J.A.C. 17:4-2.5(a)'s thirty-five-

year limitation is invalid because it is inconsistent with

N.J.S.A. 43:16A-3.6. That section is part of an amendment

effective in 1984 which added "county sheriff" to the now-

deleted list of titles in N.J.S.A. 43:16A-1, and "permit[ted] an

incumbent county sheriff to transfer from PERS to PFRS under

some circumstances." Simon, supra, 233 N.J. Super. at 188

(citing L. 1983, c. 439). That amendment allowed such a

transfer within ninety days by "[a]ny officer eligible to become

a member pursuant to the amendatory provisions of this act."

N.J.S.A. 43:16A-3.7. One eligibility requirement for such

transfer was that "[n]o county sheriff shall qualify for

membership in [PFRS] pursuant to this amendatory and

supplementary act if he has reached the age of 37 years on the

date of his application for membership." N.J.S.A. 43:16A-3.6.

We have already found that the 1984 amendment only created

"a 37-year entry-age on transferees from PERS during the 90-day

period allowed by N.J.S.A. 43:16A-3.7," and that the "general

35-year entry-age limit on membership for new employees" in

N.J.S.A. 43:16A-3 would govern henceforth. Simon, supra, 233

N.J. Super. at 190. Thus, N.J.S.A. 43:16A-3.6 is just another

26 A-5504-12T1

one-time transfer provision. It provides no basis for

invalidating the otherwise-applicable thirty-five-year limit

under N.J.S.A. 43:16A-3 and N.J.A.C. 17:4-2.5(a).

Therefore, as Judge Carchman ruled, "N.J.A.C. 17:4-2.5 must

be recognized as reasonable and entitled to deference." As

plaintiffs note, "'administrative regulations are not binding on

the courts,'" St. Peter's, supra, 185 N.J. at 15 (citation

omitted), and

the deference afforded regulations does not

go so far as to permit an administrative

agency under the guise of an administrative

interpretation to give a statute any greater

effect than is permitted by the statutory

language. Nor can agency regulations alter

the terms of a legislative enactment or

frustrate the policy embodied in the

statute. If a regulation is plainly at odds

with the statute, the court must set it

aside.

[Lourdes Med. Ctr. of Burlington Cty. v. Bd.

of Review, 197 N.J. 339, 376 (2009)

(citation omitted).]

However, plaintiffs have not carried their "'burden of proving

the rule is at odds with the statute.'" St. Peter's, supra, 185

N.J. at 13 (citation omitted). Indeed, N.J.A.C. 17:4-2.5(a) is

"entirely consistent with the statutory scheme," and precludes

plaintiffs' demand for eligibility under the PFRS Act. Id. at

17. It is plaintiffs' argument, not the regulation, that seeks

27 A-5504-12T1

to "extend [the PFRS] statute to include persons not intended."

See Serv. Armament Co. v. Hyland, 70 N.J. 550, 563 (1976).

VI.

Plaintiffs also contend that the thirty-five-year

limitation violates the Equal Protection Clause of the United

States and New Jersey Constitutions. However, "age is not a

suspect classification under the Equal Protection Clause."

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83, 120 S. Ct. 631,

646, 145 L. Ed. 2d 522, 542 (2000) (citing Gregory v. Ashcroft,

501 U.S. 452, 470, 111 S. Ct. 2395, 2406, 115 L. Ed. 2d 410, 430

(1991)); Boylan v. State, 116 N.J. 236, 250 (1989), cert.

denied, 494 U.S. 1061, 110 S. Ct. 1539, 108 L. Ed. 2d 778

(1990). "Nor is the right to membership in PFRS rather than in

PERS a fundamental right." Simon, supra, 233 N.J. Super. at

197. Thus, "States may discriminate on the basis of age without

offending the Fourteenth Amendment if the age classification in

question is rationally related to a legitimate state interest."

Kimel, supra, 528 U.S. at 83, 120 S. Ct. at 645, 145 L. Ed. 2d

at 542; In re C.V.S. Pharm. Wayne, 116 N.J. 490, 502 (1989).

As Judge Carchman found, granting increased pension

benefits to persons who become corrections officers when thirty-

five years old or younger has a rational basis. See Boylan,

supra, 116 N.J. at 250-51. We reject plaintiffs' constitutional

28 A-5504-12T1

claims substantially for the reasons set forth in Judge

Carchman's thorough opinion.

Plaintiffs argue that turning thirty-five has not prevented

them from being hired or performing their duties. Nonetheless,

the Legislature could rationally have chosen to encourage

younger persons to become State corrections officers with the

incentive of a more generous pension.

Accordingly, Judge Carchman's grant of summary judgment was

proper, because it is appropriate and constitutional for

N.J.S.A. 43:16A-3 and N.J.A.C. 17:4-2.5(a) to limit PFRS

eligibility to persons who become State corrections officers

when they are not over thirty-five years old.9

Affirmed.

9

Therefore, we need not address the merits of plaintiffs' claim

that res judicata did not justify the dismissal of thirty-seven

plaintiffs by the Law Division based on their dismissal from the

federal lawsuit. Even if the dismissal by the Law Division was

inappropriate, summary judgment would also have been granted

against those plaintiffs for the reasons set forth above.

29 A-5504-12T1