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Walter Babecki, et al.*Fn1 v. State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 28, 2011

WALTER BABECKI, ET AL.*FN1 , PLAINTIFFS-RESPONDENTS,
v.
STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL; DIVISION OF STATE POLICE; AND THE NEW JERSEY DIVISION OF PENSIONS, DEFENDANTS-APPELLANTS.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-537-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 4, 2011

Before Judges Yannotti, Espinosa and Skillman.

Plaintiffs, who are active or retired members of the State Police, filed a multi-count complaint challenging the section of the State Police Retirement System Act, N.J.S.A. 53:5A-1 to -47, that requires members of the State Police to retire at age fifty-five, N.J.S.A. 53:5A-8. Plaintiffs' complaint asserted that this mandatory retirement age violates the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49 (count one), the anti-discrimination guarantees of the New Jersey Constitution protected by the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (count two), and promises made to plaintiffs at the time they joined the State Police upon which they detrimentally relied (count three).*fn2

The defendants named in the complaint, which are the State of New Jersey, Office of Attorney General, the Division of State Police, and the Division of Pensions, filed a motion to dismiss plaintiffs' complaint for failure to state a cause of action.

The trial court granted defendants' motion with respect to plaintiffs' claims under counts two and three, asserting violations of the New Jersey Constitution and a breach of the alleged promises upon which they detrimentally relied. However, the court denied defendants' motion with respect to plaintiffs' claims under count one asserting a violation of the LAD.*fn3 The court subsequently denied defendants' motion for reconsideration.

Defendants filed a motion for leave to appeal from the denial of their motion to dismiss plaintiffs' LAD claim, which we granted. Plaintiffs did not cross-appeal from the dismissal of the other counts of their complaint. Consequently, the only issue before us on this appeal is the viability of plaintiffs' LAD claim. We reverse the trial court's denial of defendants' motion to dismiss that claim.

Except for a short hiatus between 1983 and 1985, since 1949 the Legislature has required members of the State Police to retire at age fifty-five. See L. 1949, c. 251, § 1 (enacting the age fifty-five retirement provision); L. 1983, c. 448 § 1, (repealing the provision in 1983); L. 1985, c. 175, § 1 (reenacting the age fifty-five retirement provision). That short hiatus occurred following the Supreme Court of the United States' decision in Equal Opportunity Employment Commission v. Wyoming, 460 U.S. 226, 235-44, 103 S. Ct. 1054, 1060-64, 75 L. Ed. 2d 18, 28-33 (1983), which upheld the validity of an amendment to the federal Age Discrimination and Employment Act (ADEA), 29 U.S.C.A. §§ 621-34, which extended its provisions to state and local government employees. The Attorney General subsequently issued a formal opinion to the Director of the Division of Pensions that mandatory retirement ages for members of the uniformed services, including the State Police, would be valid "only if the retirement ages established thereby are demonstrated to be bona fide occupational qualification (BFOQ)."

5 Op. N.J. Att'y Gen. (1983); see Boylan v. State, 116 N.J. 236, 240-41 (1989), cert. denied, 494 U.S. 1061, 110 S. Ct. 1539, 108 L. Ed. 2d 778 (1990). Based on this legal advice, the Legislature temporarily repealed the statute mandating the retirement of State Police officers at age fifty-five. L. 1983, c. 448.

In 1985, the Legislature again addressed the subject of mandatory retirement of public employees. In March of that year, the Legislature enacted chapter 73 of the Laws of 1985, which prohibited State agencies and local governments from adopting mandatory retirement ages. N.J.S.A. 10:3-1. However, this statute specifically exempted members "of the Division of State Police" from its provisions. Ibid.; see Boylan, supra, 116 N.J. at 250. Two months later, on May 31, 1985, following completion of a comprehensive study, the Legislature adopted an amended mandatory retirement provision for State Police officers through the enactment of N.J.S.A. 53:5A-8 in its current form.

L. 1985, c. 175, § 1. This legislation declared that the age fifty-five mandatory retirement provision "shall constitute a bona fide occupational qualification which is reasonably necessary to the normal operation of the State Police . . . ." N.J.S.A. 53:5A-8(a). The purpose of this legislation was to re-establish the age fifty-five mandatory retirement provision in compliance with the ADEA's bona fide occupational requirement exception. Senate State Government, Federal and Interstate Relations and Veterans Affairs Committee Statement to A. 3294, 201st Leg. (1985). N.J.S.A. 53:5A-8 and the LAD have both continued in substantially the same form since 1985.

Following the amendment of N.J.S.A. 53:5A-8 reinstating age fifty-five as the mandatory retirement age for members of the State Police, the Equal Employment Opportunity Commission brought an action in federal district court claiming that this amendment violated the ADEA. In Equal Employment Opportunity Commission v. New Jersey, 631 F. Supp. 1506 (D.N.J. 1986), aff'd, 815 F.2d 694 (3d Cir. 1987), the District Court rejected this challenge and upheld the validity of the age fifty-five mandatory retirement age as a bona fide occupational qualification within the intent of the ADEA.

Shortly after this decision, Congress amended the ADEA to expressly exempt state or municipal police officers from its purview. 29 U.S.C.A. § 623(j). Based on this amendment, the New Jersey Attorney General issued a second formal opinion which concluded that the statutes providing for mandatory retirement of members of the uniformed services, including N.J.S.A. 53:5A-8, were consistent with the ADEA. 12 Op. N.J. Att'y Gen. (1987).

Plaintiffs' complaint does not claim that N.J.S.A. 53:5A-8 violates the ADEA or the United States Constitution, and plaintiffs did not cross-appeal from the dismissal of their claim under the New Jersey Constitution. Thus, this appeal only involves plaintiffs' claim that N.J.S.A. 53:5A-8 violates the LAD.

Statutes that deal with the same or related subject matter must be "construed together as a unitary and harmonious whole." St. Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 15 (2005) (quoting In re Adoption of a Child by W.P. and M.P., 163 N.J. 158, 182 (2000) (Poritz, C.J., dissenting)). This rule of construction "has the greatest probative force in the case of statutes relating to the same subject matter passed at the same session of the Legislature. . . ." Perez v. Rent-A-Center, Inc., 186 N.J. 188, 214 (2006) (quoting Norman J. Singer, 2A Sutherland, Statutes and Statutory Construction § 51.3 (6th ed. 2000)).

The Legislature dealt with mandatory retirement age of members of the State Police twice during its 1985 session. By enactment of chapter 73, the Legislature generally prohibited mandatory retirement of public employees upon attainment of a specific age, but expressly exempted certain specified public employees, including "member[s] of the Division of State Police," from this prohibition. L. 1985, c. 73, § 1 (codified as N.J.S.A. 10:3-1). By enactment of chapter 175 during the same legislative session, the Legislature specifically reestablished age fifty-five as the mandatory retirement age for all members of the State Police except the Superintendent. L. 1985, c. 175, § 1 (codified as N.J.S.A. 53:5A-8). As a result of that amendment, N.J.S.A. 53:5A-8(a) provides:

The Legislature finds and declares that the public health, safety and welfare require the ongoing health and fitness of all members of the New Jersey State Police so that they may safely and efficiently protect the public. The Legislature further finds and declares that such continued health and fitness cannot be determined except with reference to age, and therefore finds and concludes that retirement of all members of the State Police at age 55 . . . shall constitute a bona fide occupational qualification which is reasonably necessary to the normal operation of the State Police, which qualification the legislature hereby promulgates and establishes.

In addition, N.J.S.A. 53:5A-8(c) now provides in pertinent part:

Except for the Superintendent of State Police, any member of the retirement system . . . who has attained the age of 55 years, shall be retired forthwith on the first day of the next calendar month

These provisions have not been changed in any material respect since their enactment in 1985. Furthermore, there has not been any amendment of the LAD during this period that could possibly raise any question concerning the continuing effectiveness of N.J.S.A. 53:5A-8. See Boylan, supra, 116 N.J. at 250.

Plaintiffs argue that even if "retirement of all members of the State Police at age 55 . . . [constituted] a bona fide occupational qualification which is reasonable to the normal operation of the State Police" in 1985 when N.J.S.A. 53:5A-8(a) was amended in its present form,*fn4 it is no longer such a "bona fide occupational qualification." However, that is not a judgment for this court to make. The Legislature has specifically found that mandatory retirement at age fifty-five "shall constitute" a bona fide occupational qualification for members of the State Police. We do not sit as a "superlegislature" with authority to overturn this legislative finding. See White v. Twp. of N. Bergen, 77 N.J. 538, 555 (1978).

Accordingly, the order of the trial court denying defendants' motion to dismiss plaintiffs' LAD claim is reversed.


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