FISHER, KRYSTAL AND DAVID VS. CITY OF MILLVILLE (TAX COURT OF NEW JERSEY)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3351-15T3

FISHER, KRYSTAL and DAVID,

Plaintiffs-Appellants, APPROVED FOR PUBLICATION

v. JULY 7, 2017

CITY OF MILLVILLE, APPELLATE DIVISION

Defendant-Respondent.

_______________________________

Argued May 10, 2017 - Decided July 7, 2017

Before Judges Lihotz, Hoffman and Whipple.

On appeal from the Tax Court of New Jersey,

Docket Nos. 14080-2014 and 7736-2015, whose

opinion is reported at 29 N.J. Tax 91 (Tax

2016).

Todd W. Heck argued the cause for appellants

(Testa Heck Scrocca & Testa, P.A.,

attorneys; Mr. Heck, on the briefs).

Brock D. Russell argued the cause for

respondent.

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

Plaintiff Krystal Fisher appeals from a Tax Court order

denying a personal residence real estate tax exemption, granted

by the Legislature to certain disabled veterans.1 In a written

opinion, Tax Court Judge Mark Cimino reviewed the statute and

concluded defendant, the City of Millville, correctly denied

plaintiff's request for exemption. Fisher v. Millville, 29 N.J.

Tax 91, 101-02 (Tax 2016). The judge found, although plaintiff

is completely disabled as a result of her military service, her

injuries did not occur "in direct support" of military

operations in Afghanistan, which was required to claim the

disabled veterans personal residence tax exemption.

On appeal, plaintiff challenges the judge's statutory

interpretation as "incorrect." We are not persuaded and affirm.

The Tax Court's review resulted from cross-motions for

summary judgment. Id. at 92. The parties submitted a joint

statement of stipulated material facts. Ibid.

In October 2002, plaintiff suffered injuries during an Army

training exercise, when she fell from a two-story building at

Fort Leonard Wood, Missouri. Ibid. The injuries did not

preclude her continued military service, and plaintiff was

transferred to Fort Stewart, Georgia, in March 2003, where she

was assigned to a unit scheduled to deploy to Afghanistan. Id.

at 93. However, in light of her injuries, plaintiff was not

1

For ease, we refer solely to Krystal Fisher as plaintiff;

however, we understand and recognize David Fisher, Krystal's

husband, is also a plaintiff and has joined in the appeal.

2 A-3351-15T3

sent overseas. Instead, she remained at Fort Stewart, assigned

to the "Rear Detachment" for her unit in Afghanistan. Ibid. In

this role, plaintiff's duties included

shipping weapons, food, clothing and

processed supplies for the overseas portion

of her unit; keeping inventory logs of

weapons utilized by her unit, including

checking in and out each weapon; retrieving,

processing, and formalizing reports for her

unit overseas as to their military police

activities; assembling protective shield

units for Humvee military vehicles utilized

in overseas combat; performing military

police duties at Fort Stewart, a staging

base; and participating in prisoner of war

camp studies and simulations at Fort Stewart

along with the development of prisoner camp

protocols to be utilized overseas.

Moreover, while stationed at Fort Stewart,

plaintiff continued to train for potential

deployment to Afghanistan as part of the

military police.

[Ibid.]

The Army honorably discharged plaintiff on December 20,

2003. On May 21, 2014, she was declared 100 percent disabled by

the United States Department of Veterans Affairs.2

Plaintiff submitted an application to defendant, claiming a

disabled veteran's property tax exemption, pursuant to N.J.S.A.

54:4-3.30. Ibid. The Millville City Tax Assessor issued a

2

There is no explanation for the eleven-year gap between

plaintiff's discharge, and the disability certification. The

parties agree, and the trial court found, plaintiff's disability

was a result of her military service. Ibid.

3 A-3351-15T3

notice of disallowance on June 26, 2014. Ibid. Plaintiff

appealed to the Cumberland County Board of Taxation, which

concluded the exemption was properly denied. Id. at 94.

Plaintiff appealed to the Tax Court, which conducted a hearing

on the parties' respective motions for summary judgment.

Analyzing the requirements for exemption, the judge concluded

plaintiff's injury was not suffered "in direct support" of

military operations in Afghanistan. Id. at 101. He denied

plaintiff's motion and granted defendant's motion for summary

judgment. Id. at 102.

We review an order granting summary judgment applying the

same standard guiding the trial judge. Conley v. Guerrero, 228

N.J. 339, 346 (2017). "[S]ummary judgment will be granted if

there is no genuine issue of material fact and 'the moving party

is entitled to a judgment or order as a matter of law.'" Ibid.

(quoting R. 4:46-2(c)).

The issue presented here is a legal question requiring

examination of statutory interpretation. "An appellate court

interprets . . . statutes . . . de novo." Meehan v.

Antonellis, 226 N.J. 216, 230 (2016) (quoting Mort. Grader, Inc.

v. Ward & Olivio, L.L.P., 225 N.J. 423, 435 (2016)).

It is well settled that the goal of

statutory interpretation is to ascertain and

effectuate the Legislature's intent. Murray

v. Plainfield Rescue Squad, 210 N.J. 581,

4 A-3351-15T3

592 (2012) (citing DiProspero v. Penn, 183

N.J. 477, 492 (2005)). "In most instances,

the best indicator of that intent is the

plain language chosen by the Legislature."

State v. Gandhi, 201 N.J. 161, 176 (2010)

(citing DiProspero, supra, 183 N.J. at 492).

"[W]hen the language of a statute is clear

on its face, 'the sole function of the

courts is to enforce it according to its

terms.'" Hubbard v. Reed, 168 N.J. 387, 392

(2001) (quoting Sheeran v. Nationwide Mut.

Ins. Co., 80 N.J. 548, 556, 404 A.2d 625

(1979)). In carrying out that function, an

appellate court must read words "with[in]

their context" and give them "their

generally accepted meaning." N.J.S.A. 1:1-

1. A court "may neither rewrite a plainly-

written enactment of the Legislature nor

presume that the Legislature intended

something other than that expressed by way

of the plain language." O'Connell v. State,

171 N.J. 484, 488 (2002).

[Cashin v. Bello, 223 N.J. 328, 335 (2015).]

The Legislature provides a tax exemption for

[t]he dwelling house and the lot . . . of

any citizen and resident of this State . . .

. honorably discharged . . . from active

service, in time of war, in any branch of

the Armed Forces. . . who has been or shall

be declared by the United States Veterans

Administration . . . from other service-

connected disability declared by the United

States Veterans Administration . . . to be a

total or 100% permanent disability . . . .

[N.J.S.A. 54:4-3.30(a).]

The statute's enactment embodies the State Constitution's

authorization to adopt statutes granting veterans tax

exemptions. See N.J. Const. art. VIII, § 1, ¶3 (1947). The

5 A-3351-15T3

Legislature has provided for two types of property tax benefits

for veterans; a partial deduction for veterans, honorably

discharged, who served in "active service in time of war,"

N.J.S.A. 54:4-8.11; and a total exemption for veterans,

honorably discharged, who served in "active service in time of

war," and who have been declared disabled as a result of their

service, N.J.S.A. 54:4-3.30(a). The term "active service in

time of war," defined in N.J.S.A. 54:4-8.10(a), is used to

determine eligibility for both the ordinary and disabled

veterans exemptions.

Under N.J.S.A. 54:4-3.30(2), entitlement to an exemption

from real property taxes for a dwelling requires a party to

prove:

(1) "[a] citizen and resident of this

State"; (2) "now or hereafter honorably

discharged or released under honorable

circumstances"; (3) "from active service, in

time of war"; (4) "in any branch of the

Armed Forces of the United States"; (5) "who

has been or shall be declared by the United

States Veterans Administration or its

successor to have a service-connected

disability . . . declared by the United

States Veterans Administration or its

successor to be a total or 100% permanent

disability . . . sustained through enemy

action, or accident, or resulting from

disease contracted while in such active

service . . ."

[Wellington v. Twp. of Hillsborough, 27 N.J.

Tax 37, 48 (Tax 2012) (quoting N.J.S.A.

54:4-3.30(a)).]

6 A-3351-15T3

Here, the only question is whether plaintiff satisfies

element three: whether her disability resulted "from active

service, in time of war." On this issue we remain mindful

"taxation is the rule, and the claimant bears the burden of

proving an exemption." N.J. Carpenters Apprentice Training &

Educ. Fund v. Borough of Kenilworth, 147 N.J. 171, 177 (1996),

cert. denied, 520 U.S. 1241, 117 S. Ct. 1845, 137 L. Ed. 2d 1048

(1997).

In his written opinion, Judge Cimino detailed the historic

changes in the constitutional provisions directed to veterans

tax benefits and the Legislature's adaptation to these

amendments. Fisher, supra, 29 N.J. Tax at 94-97. In doing so,

the judge reviewed amendments to taxation statutes, which align

with the constitutional amendment, allowing relief to veterans

who suffered 100 percent disability "in time of war or other

emergency as, from time to time, defined by the Legislature

. . . ." Id. at 94 (citing N.J. Const. art. VIII, § 1, ¶ 3).

The phrase "[a]ctive service in times of war" as used in

N.J.S.A. 54:4-3.30(a), is a defined term, which means the

"periods of time set forth in [N.J.S.A. 54:4-8.10]." N.J.S.A.

54:4-3.33(a). The Legislature listed sixteen separate military

conflicts, starting with the Civil War up to Operation Iraqi

Freedom, encompassed within the definition of "[a]ctive service

7 A-3351-15T3

in time of war," to discern eligibility of disabled veterans

seeking tax exemptions and deductions.3 N.J.S.A. 54:4-8.10(a).

Many of these periods of war or conflict are defined

temporally — with a beginning and end date during which the

disabling injury must occur, regardless of cause or location.

See Fisher, supra, 29 N.J. Tax at 95 (describing treatment of

service and disability during the Vietnam and Korean conflicts

as an "all-encompassing approach, which only required service

during a conflict."). However, recent military conflicts are

more narrowly circumscribed.

Applicable to plaintiff's time of service is the following:

Operation "Enduring Freedom", on or after

September 11, 2001, who served in a theater

of operation and in direct support of that

operation for a period, continuously or in

the aggregate, of at least 14 days in such

active service commencing on or before the

date the President of the United States or

the United States Secretary of Defense

designates as the termination date of that

operation; provided, that any person

receiving an actual service-incurred injury

or disability while engaged in such service

3

Specifically, the statute lists these conflicts: the Civil

War, the Spanish American War, World War I, World War II, the

Korean conflict, the Lebanon crisis, the Vietnam conflict, the

Lebanon peacekeeping mission, the Grenada peacekeeping mission,

the Panama peacekeeping mission, Operation "Desert Shield/Desert

Storm," Operation "Northern Watch" and Operation "Southern

Watch," Operations "Joint Endeavor" and "Joint Guard" in the

Republic of Bosnia and Herzegovina, Operation "Restore Hope" in

Somalia, Operation "Enduring Freedom," and Operation "Iraqi

Freedom."

8 A-3351-15T3

shall be classed as a veteran whether or not

that person has completed the 14 days'

service as herein provided[.]

[N.J.S.A. 54:4-8.10(a).]

This definition of "[a]ctive service in times of war"

requires (1) service after September 11, 2001; (2) service in "a

theater of operation and in direct support of that operation";

and (3) a "service-incurred injury or disability while engaged

in such service." Ibid. (emphasis added). The statute, by its

clear terms, requires service in the specified geographic area,

an issue we discuss below, as well as a proof the disability

results from "such service" in the geographic area.4

Plaintiff first refutes the judge's conclusion the

statutory definition is more constrictive and maintains the

series of amendments adding various conflicts over time was

intended to expand to availability of relief for military

missions and engagements, not just declared wars. Further, she

urges the Legislature "abandoned" the requirement the military

service occur "in expressly-defined geographic locales." While

it is true the amendments expanded benefits to veterans disabled

4

Because we conclude plaintiff's service in Georgia is

incompatible with the statute's requirements for service "in a

theater of operation and in direct support of that operation,"

we take no position on what proofs would establish the causal

linkage between a plaintiff's "service incurred injury or

disability" and "such service."

9 A-3351-15T3

in designated military conflicts, keeping step with the

Constitution's amendment to authorize Legislation covering

events "in time of war or other emergency," N.J. Const. art.

VIII, § 1, ¶ 3, we reject the suggestion benefits were intended

to be extended without regard to geographic limitations.

N.J.S.A. 54:4-8.10(a) circumscribes the definition of "active

service in time of war," and thus limits eligibility to those

injured "in a theater of operation and in direct support of that

operation." Inclusion of this geographic requirement was

purposeful.5

As noted by the Tax Court in Wellington:

It is too plain to require extended

discussion that members of the military who

are physically present on the battlefield

during a military conflict serve in the

5

The language used is "a theater of operation" versus "the

theater of operation," which the Tax Court has concluded does

not necessarily require presence on the battlefield. See

Galloway Twp. v. Duncan, 29 N.J. Tax 520, 527-28 (Tax 2016)

(extending benefits to doctor disabled during service while

treating soldiers wounded in combat, who were flown to Andrews

Air Force Base in Maryland).

We also note the Legislature has varied the width and

breadth of the geographic requirements. Whereas the definition

of "Active service in time of war" relating to "Operation

'Restore Hope' in Somalia" required "serv[ice] in Somalia or on

board any ship actively engaged in patrolling the territorial

waters of that nation for a period," the definition for

"Operation Enduring Freedom," required, as we have noted,

service "in a theater of operation and in direct support of that

operation," a more flexible geographic requirement. N.J.S.A.

54:4-8.10(a).

10 A-3351-15T3

theater of operation of that conflict within

the meaning of N.J.S.A. 54:4-8.10. Their

health and life are endangered by exposure

to enemy action, weapons and resistance, as

well as numerous other dangers inherent in

warfare. It is this exposure to risk for

the benefit of national security that

warrants a property tax exemption for

veterans who are 100% permanently disabled

as the result of their military service.

[Wellington, supra, 27 N.J. Tax at 50.]

Plaintiff next asserts her unit was stationed in a combat

zone, and her service was in direct support of that combat unit,

although performed stateside. She relies on prior Tax Court

cases she believes are "more typical" of the "modern

requirement," determining "direct support" can occur far from

the actual battlefield.

"N.J.S.A. 54:4-8.10(a) does not define 'theater of

operation.'" Wellington, supra, 27 N.J. Tax at 50. Nor does

the statute define "direct support."

Citing Wellington, plaintiff urges a "more balanced"

interpretation of the statute than the one provided by the Tax

Court. She contends she was exposed to the experiences of war

and, being disabled as a consequence of such service, as a

matter of policy, should result in entitlement to the claimed

tax relief. See Galloway, supra, 29 N.J. Tax at 532 ("With

modern warfare, it defies reality to claim that one has be on

the battlefield to experience war.").

11 A-3351-15T3

We find these arguments unavailing. We remain mindful

"[t]ax-exemption statutes are strictly construed against those

claiming exemption because of the compelling public policy that

all property should bear its fair share of the burden of

taxation." Kenilworth, supra, 147 N.J. at 177 (quoting

Princeton Univ. Press v. Borough of Princeton, 35 N.J. 209, 214

(1961)). Further, the court in Wellington acknowledged "the

unusual circumstances of th[e] case," which extended the

exemption to the plaintiff, who

although in the United States during his

military service, was directly exposed to

the dangers of the battlefield. Enemy

chemical agents intended to harm members of

the United States military were recovered

from the battlefield in Iraq and transported

to the United States for testing. The

purpose of the testing was to protect

American soldiers and Marines engaged in

military operations in the Arabian

Peninsula, Persian Gulf and elsewhere. As a

result of his exposure to actual, physical

enemy weapons, plaintiff suffered 100%

permanent disabilities.

[Wellington, supra, 27 N.J. Tax at 50.]

The facts here are distinguishable from those presented in

Wellington. We cannot agree plaintiff's injury experienced in a

fall during her Missouri basic training or her role performing

the Rear Detachment services outlined above in Georgia satisfy

the statutory requisites of service "in a theater of operations

12 A-3351-15T3

and in direct support of that operation . . . ." N.J.S.A. 54:4-

8.10(a).

We concur with Judge Cimino's analysis of the Legislature's

intent, concluding the determination turns on the exposure of

the service member to the harms of war, an experience not

visited upon plaintiff. Accordingly, plaintiff's disabling

injuries were not suffered in a theater of operation or in

direct support of a theater of operation, and thus, were not the

result of "active service in time of war," as defined in

N.J.S.A. 54:4-8.10(a).

Finally, plaintiff asserts the statutory scheme amounts to

an equal protection violation, as up until recently, certain

military positions were closed to women. The parties stipulated

plaintiff remained in Georgia because of her injury, not because

of any policy discriminating against female soldiers. R. 2:11-

3(e)(1)(E).

Affirmed.

13 A-3351-15T3