On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Winkelstein.
Appellant John S. Redden appeals from a final decision of respondent Board of Trustees of the Public Employment Retirement System (PERS Board), which dismissed his petition seeking full credit in the Prosecutors Part for his prior service in the PERS.
In early 2002, chapter 366 of the Laws of 2001, later codified at N.J.S.A. 43:15A-155 to -161, was enacted into law. Chapter 366 established a separate Prosecutors Part within PERS, with the intention of providing prosecutors enhanced pension benefits.
This statute raised various issues of interpretation. The PERS Board addressed many of those issues by the adoption on June 21, 2004 of administrative regulations. N.J.A.C. 17:2-8.1 to -8.16.
Redden and various other deputy attorneys general and assistant prosecutors filed an appeal challenging the validity of those regulations. We upheld the challenged regulations in an unpublished opinion. Ouslander v. Pub. Employees Ret. Sys., No. A-6287-03 (App. Div. June 22, 2005). However, we preserved the right of any PERS member affected by the regulations to challenge their validity "as applied if that member could show that the circumstances of the particular case warrant it." (slip op. at 35.) The Supreme Court subsequently denied the appellants' petition for certification. 185 N.J. 595 (2005). Following the issuance of our opinion and the Court's denial of certification, Redden continued to pursue his petition to have his prior PERS service credits transferred to the Prosecutors Part. The matter was presented to an Administrative Law Judge (ALJ) based on stipulated facts. The critical stipulated fact was that Redden was not an assistant prosecutor on the effective date of chapter 366, January 7, 2002. Under the regulations of the PERS Board interpreting chapter 366, a PERS member had to be an assistant prosecutor on that date to be entitled to transfer prior PERS service credits into Prosecutors Part service credits. Based on this interpretation of chapter 366, the amount of the pension Redden was entitled to receive upon his anticipated retirement on January 31, 2007 at the age of fifty-five was the same amount he would have received if chapter 366 had not been enacted, that is, $66,181 annually. The ALJ determined that the issues to be resolved were whether Redden could transfer his PERS service credit to the Prosecutors Part and, if not, whether he was entitled to a refund of the part of his pension contributions to the Prosecutor's Part that exceeded the contributions he would have been required to make as a regular PERS member. The ALJ concluded in a written decision that both of these issues had been decided adversely to Redden by our opinion in Ouslander, and that even though Redden characterized his petition as an "as-applied" challenge to the regulations, it was in actuality "a facial attack on the validity of the regulations, a matter already addressed in Ouslander[.]" Accordingly, the ALJ recommended dismissal of Redden's petition. The PERS Board adopted the ALJ's recommended initial decision.
On appeal, Redden presents the following arguments:
I. AS APPLIED TO THIS CASE, THE PERS REGULATION (N.J.A.C. 17:2-8.11(c)) PROHIBITING A REFUND OF EXCESS CONTRIBUTIONS WHEN A RETIRING PROSECUTOR IS FORCED TO ELECT REGULAR PERS BENEFITS IS INVALID BECAUSE IT IS CONTRARY TO THE LEGISLATIVE INTENT AND VIOLATES THE STATE AND FEDERAL CONSTITUTIONS.
A. The regulation is invalid because it is contrary to the legislative intent of providing enhanced pension benefits to a retiring prosecutor.
B. As applied in this case N.J.A.C. 17:2-8.11(c) violates the contract clauses of the United States and New Jersey Constitutions.
C. As applied in this case N.J.A.C. 17:2-8.11(c) violates principles of substantive due process and ...