NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2885-05T12885-05T1

CHRISTOPHER V. DIETZ,

Plaintiff-Appellant,

v.

DAVID J. SOCOLOW, Acting

Commissioner, State of New

Jersey Department of Labor and

Workforce Development, and

BOARD OF TRUSTEES, NEW JERSEY

PUBLIC EMPLOYEES' RETIREMENT

SYSTEM,

Defendants-Respondents.

_________________________________________

Telephonically argued February 28, 2006 - Decided February 28, 2006

Before Judges Fall and C.S. Fisher.

On appeal from the final agency decision

of the Department of Labor.

Robert A. Goodsell argued for appellant (Post, Polak, Goodsell, MacNeill & Strauchler, P.A., attorneys; John N. Post, of counsel; Mr. Goodsell and Holly English, on the brief).

Eileen S. Den Bleyker argued for respondents (Zulima V. Farber, Attorney General, attorney; Lewis Scheindlin, Assistant Attorney General, of counsel; Ms. Den Bleyker, on the brief).

PER CURIAM

In this appeal, we reject the claims of plaintiff -- a former superior court judge receiving a judicial pension at the time he became a workers compensation judge -- that he was entitled to enrollment in the retirement system applicable to workers compensation judges and that he is entitled to remain on the bench beyond his 70th birthday.

I

Plaintiff Christopher V. Dietz (plaintiff) was appointed to the workers compensation bench in 1998, immediately following his completion of a seven-year term as a superior court judge. When he retired as a superior court judge, plaintiff elected to begin receiving a judicial pension from the Judicial Retirement System (JRS). Over the course of the years following plaintiff's appointment as a workers compensation judge, a dialogue occurred between plaintiff and the Attorney General's office regarding plaintiff's pension rights. Ultimately, the Commissioner of the New Jersey Department of Labor (Commissioner) took the position in these unusual circumstances that, by operation of law, plaintiff was not entitled to become a member of the retirement system available to workers compensation judges and that he is also not a workers compensation judge entitled to remain on the bench past his 70th birthday. We agree that the Commissioner's determinations were compelled by the law governing these circumstances.

The issues presented to this court not only appear to be unique, since we are unaware and have not been advised that there were any retired superior court judges sitting in the workers compensation court when the laws in question were enacted, but also regrettably arrived in this court at the last possible minute. Despite the passage of many years during which the parties discussed and debated these issues, it appears that nothing which could be fairly called a final agency decision was rendered until February 8, 2006, shortly before plaintiff's 70th birthday, which occurred on February 14, 2006. And, instead of filing a notice of appeal seeking our review of what has been deemed to be a final agency decision, plaintiff filed on February 6, 2006 an action in the Law Division seeking declaratory and injunctive relief thus further delaying our consideration of these issues. In a written opinion filed on Friday, February 10, 2006, the trial judge correctly recognized that venue should have been lodged in the Appellate Division, and, by order of the same date, pursuant to R. 1:13-4, transferred the action to this court. Plaintiff immediately sought, on an emergent basis, this court's stay of the final agency's determination. After hearing oral argument on February 10, 2006, we immediately ordered a stay but accelerated the consideration of the merits of the appeal. We now affirm.

II

The issues presented revolve around the meaning of various statutes, not only those in effect when plaintiff retired as a superior court judge, when he elected to receive pension benefits from the JRS, and when he became a workers compensation judge, but also those enacted during plaintiff's term as a workers compensation judge. The parties dispute the application of these statutes (a) to plaintiff's claimed right to be enrolled in the pension system applicable to workers compensation judges at the time he became a workers compensation judge, and (b) to plaintiff's claimed right to remain on the bench beyond his 70th birthday.

A

When plaintiff began serving as a workers compensation judge in 1998, he was not permitted enrollment in the Public Employees' Retirement System (PERS). The Commissioner apparently took the position, never clearly formalized in any decision, that because plaintiff was receiving a JRS pension, he was barred from enrolling in PERS.

In 2001, the Legislature enacted L. 2001, c. 259, which created the Workers Compensation Judges Part (WCJP) of PERS. This law gave workers compensation judges already enrolled in PERS new second accounts in the WCJP and allowed them to transfer their existing PERS services into this new account. Again, it appears there were numerous communications between the parties concerning plaintiff's enrollment in this new pension system. Despite the position taken by the Attorney General that plaintiff was not permitted enrollment in the WCJP because he was receiving a JRS pension, it appears that no final agency decision in that regard was rendered. In any event, since plaintiff was not permitted to enroll in PERS when he was appointed to the workers compensation bench in 1998, and was not permitted to enroll in WCJP when it was created in 2001, no contributions toward the plan were ever deducted from plaintiff's salary.

Plaintiff argues that the Legislature provided for the enrollment of all workers compensation judges in the WCJP, citing that portion of N.J.S.A. 43:15A-143, which states "all workers compensation judges shall be members" of the WCPJ. The Commissioner argues, however, that this statute is subject to N.J.S.A. 43:3C-1, which prohibits a former member of any retirement system, who has been granted a pension, from enrolling in another pension system:

Notwithstanding any other law to the contrary, if a former member of any pension fund or retirement system, contributory or noncontributory, established under any law of this State, who has been granted a pension or retirement allowance for any cause other than vesting or deferred retirement, becomes employed again in a position which makes him eligible to be a member of another pension fund or retirement system established under any law of this State, such person shall not be enrolled in such other pension fund or retirement system if he is eligible to receive such pension or retirement allowance.

In response, plaintiff claims that N.J.S.A. 43:3C-1 is inapplicable because the Legislature intended that he and all other workers compensation judges be enrolled in the WCJP regardless of whether that judge was receiving a pension under some other system. To support that assertion, plaintiff refers to N.J.S.A. 43:15A-143, and particularly attempts to deflect the broad mandate of N.J.S.A. 43:3C-1 by referring to the initial portion of the statute which we hereafter emphasize:

Notwithstanding the provisions of any other law, all workers compensation judges shall be members of the [WCJP] . . . and shall be subject to the same membership and benefit provisions as State employees, except as provided by P.L. 2001, c. 259. Membership in the retirement system shall be a condition of employment for service as a judge of compensation.

[N.J.S.A. 43:15A-143 (emphasis added).]

In determining whether plaintiff was entitled to be enrolled in the WCJP, we are obligated to discern the Legislature's intent. State v. Sutton, 132 N.J. 471, 479 (1993). In searching for that intent, we initially consider the plain language of the statute and, if it is clear, the statute must be interpreted according to its terms. U.S. Sportsmen's Alliance Foundation v. N.J. Dep't of Envtl. Prot., 182 N.J. 461, 469 (2005); Sheeran v. Nationwide Mutual Ins. Co., 80 N.J. 548, 556 (1979). In championing the clarity of the plain language of N.J.S.A. 43:15A-143, plaintiff argues that a literal reading of the statute -- where it is said that "all workers compensation judges shall be members" of the WCPJ "notwithstanding the provisions of any other law" -- renders unfettered his right to enrollment in the WCJP.

In pressing his claim to a right to be enrolled in the WCPJ, plaintiff has largely discounted the fatal impact of N.J.S.A. 43:3C-1, which also -- when literally read -- precludes the result urged by plaintiff. That is, our acceptance of plaintiff's reliance upon the literal language of N.J.S.A. 43:15A-143 would require that we overlook the similar "notwithstanding" language in N.J.S.A. 43:3C-1 ("Notwithstanding any other law to the contrary . . ."). Thus, although it is fair to say that as a general matter a clause in a statute that contains such "notwithstanding" language would appear to convey the Legislature's desire to avoid any overriding or limitation on the statute by other statutes, such delusive clarity must give way when one of the "other laws" which the statute would ostensibly render irrelevant states that it too should govern "notwithstanding any other law to the contrary." As a result, the "notwithstanding" clause of N.J.S.A. 43:15A-143 yields little to our understanding of the statute's meaning when that statute is confronted by the similar "notwithstanding" clause in N.J.S.A. 43:3C-1.

To harmonize the language of these statutes, we must consider not only their purposes, A.R. Criscuolo & Associates v. N.J. Dep't of Envtl. Prot., 249 N.J. Super. 290, 298-99 (App. Div. 1991), but also the entire legislative scheme of which they are parts, Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 129 (1987)), any relevant legislative history, In re Adoption of N.J.A.C. 7:7A-1.4, 118 N.J. 552, 555 (1990), related or similar legislation, Loboda v. Clark Tp., 40 N.J. 424, 435 (1963), and the common sense of the situation, Morich v. N.J.Dep't of Envtl. Prot., 269 N.J. Super. 240, 244 (App. Div.), certif. denied, 133 N.J. 428 (1992). This requires that we consider not only the provisions of the laws enacted in 1999 and 2001, which specifically relate only to workers compensation judges, but also N.J.S.A. 43:3C-1, which created a general standard applicable to all public employees that prohibits the relief plaintiff seeks.

In considering all these enactments, we adhere to the Commissioner's position. Although we recognize that N.J.S.A. 43:15A-143 -- when literally read with a conscious disregard of N.J.S.A. 43:3C-1 -- lends support for the conclusion urged by plaintiff, we must remain mindful of the public policy that pre-existed the adoption of N.J.S.A. 43:15A-143. That public policy, clearly reflected in the language of N.J.S.A. 43:3C-1, thoroughly disapproves and ultimately prohibits a person receiving a pension through public employment from being enrolled in another public pension system. See, e.g., Bierne v. Jersey City Emp. Retirem. Sys., 176 N.J. Super. 146, 150-51 (App. Div. 1980). Absent a clearer statement from the Legislature than the amorphous "notwithstanding" clause seized upon by plaintiff, we are disinclined to assume that the Legislature intended to allow a person receiving a JRS pension to be enrolled in another public pension system. We decline the invitation to broadly read the "notwithstanding" clause of N.J.S.A. 43:15A-143 as to require our rejection of the well-established policies embedded and clearly described in N.J.S.A. 43:3C-1. See, e.g., Loboda, supra, 40 N.J. at 435 ("Isolated expressions cannot be invoked to defeat a reasonable construction."); see also Oregon Nat'l Resources Council v. Thomas, 92 F.3d 792, 796 (9th Cir. 1996) ("notwithstanding any other law" provisions should not always be given literal construction when to do so would create illogical disharmony with other laws). Instead, we view the parameters of the "notwithstanding" clause in N.J.S.A. 43:15A-143 to extend no further than necessary to address the particulars of the retirement of workers compensation judges and their pension rights, without reaching or serving to impinge on the broader and important limits on the receipt of public pension funds contained in N.J.S.A. 43:3C-1.

B

Plaintiff also contends he is entitled to remain on the workers compensation bench beyond his 70th birthday and appeals the determination made by the Commissioner on January 9, 2006, which was memorialized in a letter to plaintiff dated February 8, 2006, that plaintiff was no longer eligible to be a workers compensation judge beyond the close of business on February 14, 2006. We reject plaintiff's argument except to the extent that we interpret the applicable statutes as permitting plaintiff to remain a workers compensation judge until close of business on February 28, 2006.

Prior to 1999, workers compensation judges were not required to retire at any particular age. In 1999, however, the Legislature enacted a law that required the retirement of "[a]ll judges of compensation . . . upon attaining the age of 70 years." N.J.S.A. 34:15-49(a). In 2001, the Legislature enacted L. 2001, c. 259, effective December 6, 2001, which declared in a provision codified at N.J.S.A. 43:15A-145(a), that workers compensation judges reaching "the age of 70 years shall be retired forthwith on the first day of the next calendar month."

The initial question raised by these statutes is whether the Commissioner is correct that plaintiff's last day of employment should have been February 14, 2006 or whether it should be February 28, 2006. The conflict between these two statutes as to the precise date upon which a workers compensation judge is required to step down is problematic. Nevertheless, we conclude that such a judge's retirement must commence no later than the first day of the month following the month in which the judge attains the age of 70. We reach this result because, while both statutes require retirement at the age of 70, the specific date upon which that retirement must take effect is not definitively described in N.J.S.A. 34:15-49(a), but it is described in N.J.S.A. 43:15A-145 as the first day of the following calendar month.

Although we thus disagree with the Commissioner's determination as to the precise date upon which plaintiff must retire, we do agree with the Commissioner that plaintiff may not further stay on the workers compensation bench. In this regard, plaintiff relies upon an unwarranted interpretation of N.J.S.A. 43:15A-145(b), which provides an exception to mandatory retirement at the age of 70:

Notwithstanding the provisions of [N.J.S.A. 43:15A-145(a)] or any other law to the contrary, a workers compensation judge who is 60 years of age or older on [January 14, 2000] shall be permitted to continue service as a judge until attaining 10 years of service credit under the [WCJP] of the retirement system.

Since plaintiff would have been a workers compensation judge for only seven years upon reaching the age of 70, plaintiff contends he is authorized to remain on the bench at least until he reaches the age of 73. We disagree. The plain language and the obvious meaning of N.J.S.A. 43:15A-145(b) demonstrates that it applies only to those workers compensation judges who were enrolled in the WCJP. The enactment of N.J.S.A. 43:15A-145(b) clearly recognized that an existing workers compensation judge who had commenced service after age 60 would be ineligible for a pension if required to retire at age 70 by reason of the 1999 amendment to N.J.S.A. 34:15-49(a), since pension eligibility required ten years of service. Therefore, to accommodate that inequity, the Legislature's enactment of N.J.S.A. 43:15A-145(b) permitted "a workers compensation judge who is 60 years of age or older on the effective date of P.L. 1999, c. 380 [to] be permitted to continue service as a judge until attaining 10 years of service credit" in the WCPJ. Since plaintiff, by electing to receive his JRS pension, was not entitled to be enrolled in the WCJP, the exception to mandatory retirement contained in N.J.S.A. 43:15-145(b) is not applicable to him.

III

For these reasons, we affirm the final agency decision in this matter and conclude that plaintiff was not entitled to be enrolled in the WCPJ and is ineligible to sit as a workers compensation judge beyond the close of business on February 28, 2006. As a result, we will dissolve the stay of plaintiff's cessation of duties as a result of our disposition of this appeal. However, because of the late date of the February 8, 2006 agency determination and the adverse impact on plaintiff's benefits that an immediate dissolution of the stay might cause, and to also accord plaintiff a reasonable opportunity to bring closure to any pending matters, we deem it appropriate to allow the stay to remain in effect until it shall automatically dissolve at the close of business on Friday, March 10, 2006. See Boylan v. State, 222 N.J. Super. 313, 336 (App. Div. 1988), rev'd on other grounds, 116 N.J. 236 (1989).

When plaintiff's seven-year term as a superior court judge ended in July, 1998, he elected to begin collecting a lifetime judicial pension from the JRS of approximately $5,100 per month. That same month, plaintiff began serving as a workers compensation judge, at a salary in the present amount of $119,000 per year.

On February 8, 2006, the Department of Labor issued a letter that declared plaintiff could not continue service as a workers compensation judge "beyond February 14, 2006." That letter does not express any opinion as to whether plaintiff had a right to be enrolled in the pension system applicable to workers compensation judges, and although it is perhaps arguable that a final agency determination in that regard was made, through either action or inaction, at a date that would render this appeal untimely, we observe that defendants have not made that argument. As a result, we proceed on the assumption that plaintiff has timely appealed both of the issues raised.

We suspect that the Legislature simply did not contemplate, when adopting the 1999 and 2001 laws in question, that one of the then fifty-one workers compensation judges was already collecting a public service pension. We are not dissuaded from this view by an October 17, 2005 letter included in the record on appeal which was sent to the Attorney General by an assemblyman, who identified himself as "a drafter and Prime sponsor" of L. 2001, c. 259. The assemblyman stated that he was "puzzled and distressed" that plaintiff was deemed to be ineligible for enrollment in the WCPJ and unauthorized to remain on the bench past the age of 70. He asserted that the "amendment establishing the WCPJ was intended to fully protect all workers' compensation judges, including Judge Dietz, with such pension participation." Since the legislative history contains no evidence that plaintiff's particular status was actually considered by the entire deliberative body, we find that this letter -- written after enactment of the laws in question and submitted in support of one party to an existing dispute -- is not necessarily representative of the legislative intent and entitled to little, if any, weight. See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 354 n.39, 97 S. Ct. 1843, 1864 n.39, 52 L. Ed.2d 396, 426 n.39 (1977); International Union of Elec. v. Westinghouse Elec. Corp., 631 F.2d 1094, 1103 (3rd Cir. 1980); Morton Intern., Inc. v. A.E. Staley Mfg. Co., 106 F. Supp.2d 737, 756 (D.N.J. 2000).

The effective date of L. 1999, c. 380, which, as codified in N.J.S.A. 34:15-49(a), requires the retirement of workers compensation judges upon attaining the age of 70.

(continued)

(continued)

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A-2885-05T1

February 28, 2006