Both parties seek a declaratory judgment. Although the action might have been brought in the Law Division, there has been no motion to transfer. In all respects counsel have cooperated admirably to bring the case on quickly for pretrial conference and final hearing. The question presented for judgment is whether defendant, a judge of the Essex County Juvenile and Domestic Relations Court, is or is not required to retire upon reaching the age of 70. Defendant contends he was appointed to a five-year term on June 9, 1965 and is entitled to hold office and carry on his judicial work until June 9, 1970. Plaintiff's position is that the age of 70 is a compulsory retirement age for defendant.
The facts have been supplied by stipulation and exhibits. Judge Lindeman was first appointed a judge of the Juvenile Court in March 1945 and has served continuously since then. November 25, 1968 will be his seventieth birthday. In 1955 he applied for membership in, and became a member of, the Public Employee's Retirement System of New Jersey (quite commonly called PERS). The application filed at that time shows that he had been a member of the New Jersey Assembly in 1924, a councilman of the City of East Orange in 1929 and 1930, and judge of the East Orange District Court from April 1930 to March 1945:
Judge Lindeman relies primarily upon N.J.S. 2 A:4-7:
"The judges [of the Juvenile and Domestic Relations Courts in the various counties] appointed under sections 2A:4-4 to 2A:4-6 of this title shall each hold office for a term of 5 years and until his successor is appointed and confirmed."
His current appointment, as noted, was made in June 1965 and he holds a commission signed by the Governor certifying that he is to hold the office "for and during legal time." Title 2A was adopted by chapter 344 of the Laws of 1951.
Primary reliance is placed by plaintiff upon sub-section (b) of N.J.S. 43:15 A -47. That section is part of the legislation
establishing PERS which was enacted as chapter 84 of the Laws of 1954. It reads as follows:
"Retirement from service shall be as follows:
a. A member who shall have reached 60 years of age may retire from service by filing with the board of trustees a written statement, duly attested, stating at which time subsequent to the execution and filing thereof he desires to be retired. The board of trustees shall retire him at the time specified or at such other time within 30 days after the date so specified as the board finds advisable.
b. A member who shall have reached 70 years of age shall be retired by the board for service forthwith, or at such time within 90 days thereafter as it deems advisable, except that an employee reaching 70 years of age may be continued in service from time to time upon written notice to the ...