On certification to the Superior Court, Appellate Division, whose opinion is reported at 245 N.J. Super. 418 (1991).
O'hern, Wilentz, Handler, Pollock, Garibaldi, Stein, Clifford
The opinion of the court was delivered by
In Phillips v. State, 98 N.J. 235 (1985) (Phillips I), we held that a member of the New Jersey National Guard injured in the line of duty could sue fellow guard members for those injuries if attributable to the fellow guard members' negligence, unless the defendants were complying with a lawful order. Id. at 250. Recognizing the inconsistency that the fellow guard members might be held liable while the State is immune (and yet possibly liable for indemnification), we "invited the Legislature to consider the seemingly anomalous and conflicting policies that have resulted from * * * the elimination of immunity for members of the military." Id. at 250-51. The Legislature responded in 1987 by restoring immunity to the fellow guard members and made its law applicable to "all actions and proceedings that accrue, are pending or are filed after June 1, 1986." L. 1987, L. 217, § 6 (emphasis added). The effect of that law is to bar recovery by any New Jersey National Guard member against a fellow member on account of injury sustained in the line of duty.
The question now is whether that legislative enactment retroactively applies to Phillips I. Because the legislative history does not suggest that the Legislature intended that the 1987 amendment apply retroactively to claims instituted before its effective date, we cannot sustain the statute's retroactive application to plaintiff's cause of action.
For purposes of this appeal, we accept plaintiff's version of the facts and procedural history.
On August 17, 1978, Walter Phillips, then a New Jersey National Guard member, suffered a paralyzing injury while on military-training maneuvers at Fort Drum, New York. Phillips sustained that injury from an accident that occurred while riding within an M-113 armored personnel carrier that was operated by defendant Charles Watson and commanded by defendant Mark Curiale. As the M-113 traveled at high speeds through rough terrain, Phillips was thrown from his seat and fractured his spine. That injury rendered him permanently quadriplegic.
Walter Phillips filed suit in 1980, naming Charles Watson, Mark Curiale, the State of New Jersey (the National Guard), and FMC Corporation (the manufacturer of the M-113) as defendants. The Law Division granted the Attorney General's motion for summary judgment and dismissed the complaint against defendants Watson, Curiale, and the State of New Jersey. The Appellate Division affirmed in an unreported opinion, and we granted plaintiff's petition for certification. Phillips v. State, 96 N.J. 279 (1984).
In Phillips I, supra, 98 N.J. at 250-51, we held that although Walter Phillips could not maintain a direct action against the State of New Jersey, he could sue his fellow guard members, Curiale and Watson, for line-of-duty injuries attributable to their negligence. On July 29, 1987, the Legislature enacted N.J.S.A. 38A:13-1.2, which eliminated the liability of the State, National Guard, and National Guard members for injury or death sustained in the line of duty, except for injury or death caused by an intentionally-wrongful act of a co-member. The Legislature made that law applicable to all actions or proceedings that "accrue, are pending or are filed after June 1, 1986." L. 1987 c. 217, § 6.
In September 1987, following a painful nine-year struggle against depression and other residuals of quadriplegia, Walter Phillips took his own life. His mother, as administratrix of his estate, wishes to continue the suit against defendants Curiale and Watson. (We shall continue to refer to the plaintiff as though it were Walter Phillips.)
In August 1988, Curiale and Watson renewed their motion for summary judgment, arguing that plaintiff's exclusive remedy is the compensation provisions of the Military and Veterans Law, N.J.S.A. 38A:13-1 to -9 (the military compensation law). Relying on N.J.S.A. 38A:13-1.2, the Attorney General argued that because Phillips' action was "pending" after June 1, 1986, the cause of action against his fellow guard members should be dismissed.
Plaintiff argued that the Legislature's inclusion of the retroactivity clause in the military compensation law was suspect because in his view it was totally unnecessary. His investigation disclosed that his case was the only pending military-tort case in New Jersey that represented financial exposure for the State because of a 1981 Congressional amendment to the Federal Tort Claims Act, 28 U.S.C.A. § 2671 to § 2680, that included within the definition of a federal employee members of the National Guard engaged in federalized duty. See 28 U.S.C.A. § 2671. Pursuant to that provision, the United States has assumed responsibility for tort claims asserted by National Guard members that accrued after the 1981 enactment. Because almost all National Guard duty is federalized duty, the Attorney General has routinely removed military-tort claims to the federal courts. In plaintiff's view, there were simply no pending cases in 1987 that could reach the State treasury other than the Phillips case because plaintiff's cause of action accrued before the enactment of the federal amendment.
Plaintiff challenged the retroactive application of N.J.S.A. 38A:13-1.2 to his cause of action on four grounds: (1) as a matter of statutory construction the retroactivity provision does not apply to plaintiff's cause of action; (2) the application of that statute to plaintiff's case is "manifestly unjust" because of the time, expense, and effort invested in bringing the case to trial; (3) retroactive application is particularly harsh and oppressive here because it destroys plaintiff's cause of action, thus denying him due process of law; and (4) the retroactivity clause denies him the equal protection of the law and constitutes "special legislation" prohibited by article 4, section 7, paragraphs 7 and 8 of the New Jersey Constitution because the insertion of that clause into the military amendment was a "conscious plan to eliminate Walter Phillips' claim."
The Law Division rejected those arguments and granted the State's motion for summary judgment, dismissing the complaint with prejudice against defendants Watson and Curiale. The court reasoned that the Legislature specifically intended that the amendment be retroactively applied to the pending litigation. Next, the trial court held that to apply the amendment retroactively would not be manifestly unjust because the public interest in the uniform application of compensation laws and protection of the State from unnecessary financial burdens outweighed plaintiff's right to sue in tort. The court concluded that to give the amendment retroactive effect would not constitute a violation of due process or equal protection of law, nor would it constitute special legislation in violation of the New Jersey Constitution. The Appellate Division affirmed substantially for the reasons expressed by the Law Division. 245 N.J. Super. 418 (1991). We granted plaintiff's petition for certification, 127 N.J. 545 (1991), and now reverse.
We begin our analysis with the general principle of statutory construction that courts favor the prospective application of statutes. Twiss v. State, 124 N.J. 461, 466 (1991) (citing Gibbons v. Gibbons, 86 N.J. 515, 521 (1981)).
It is a fundamental principle of jurisprudence that retroactive application of new laws is usually unfair. There is general consensus that notice or warning of the rule should be given in advance of the actions whose effects are to be Judged. The hackneyed maxim that everyone is held to know the law, itself a principle of dubious wisdom, nevertheless presupposes that the law is at least susceptible of being known. But this is not possible concerning law that has yet to exist.
[Norman J. singer, 2 Sutherland on Statutes and Statutory Construction § 41.02 at 340 (4th rev. 1986) (Sutherland) (footnote omitted).]
On the other hand, courts are not free to disregard legislative intent. In Bradley v. School Board of Richmond, 416 U.S. 696, 94 S. Ct. 2006, 40 L. Ed 2d 476 (1974), the Supreme Court held that "a court is to apply the law in effect at the time it renders its decision." Id. at 711, 94 S. Ct. at 2016, 40 L. Ed. at 488 (citing Thorpe v. Housing Auth. of Durham, 393 U.S. 268, 281, 89 S. Ct. 518, 526, 21 L. Ed. 2d 474, 484 (1969)). The Court based that holding on a broad reading of United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L. Ed. 49 (1801), in which Chief Justice Marshall explained the origin and justification for that rule:
If, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, * * * I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns, * * * the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.
[Id. at 110, 2 L. Ed. at 51.]
The Court in Bradley recognized two exceptions to the principle that a court is to apply the law in effect at the time it renders its decision: when doing so 'would result in manifest inJustice or there is statutory direction or legislative history to the ...