Boylan v. State
| Decision Date | 20 January 1988 |
| Docket Number | Nos. A-4578-86T5,A-4503-86T5,TREASURY--DIVISION,A-4578-86T5,A-5124-88T5,A-5124-86T5 and A-4833-86T5,A-4833-86T5,s. A-4578-86T5 |
| Citation | 536 A.2d 1283,222 N.J.Super. 313 |
| Parties | Edwin BOYLAN, John E. Butler, Dominic G. Ferlauto, Thomas Fitzpatrick, John W. Gardner, Edward J. Gray, William P. Hayes, John Hussey, James N. Karas, William N. Luck, Thomas W. Martin, William R. Nixon, Albert J. Shleeh, Plaintiffs-Appellants, v. STATE of New Jersey, City of Jersey City, Township of Irvington, Township of Montclair, City of Newark, Defendants-Respondents. () William J. COMER, Fire Chief of the City of Paterson; Kenneth Peterson, Fire Chief of the City of Passaic; George Sbarra, Fire Chief of Township of Belleville; James Houn, Fire Chief of the City of Hoboken, Edward Woods, Fire Chief of the City of Margate City; John W. Gardner, Fire Chief of the Township of Montclair; and, New Jersey Paid Fire Chiefs' Association, Plaintiff-Appellants, v. The CITY OF PATERSON, The City of Passaic, The Township of Belleville, The City of Hoboken, The City of Margate City, The Township of Montclair and all Municipalities of the State of New Jersey, Defendants-Respondents. () Alexander M. BEATTIE, Jr., Plaintiff-Appellant, v. CITY OF CLIFTON, and the State of New Jersey, Div. of Pensions, Defendants-Respondents. () Gioacchino FIORENTINO, Firemens Mutual Benevolent Association--Local 27; David Slaughter; and City of Ocean City, Plaintiffs-Appellants, v. NEW JERSEY DEPARTMENT OF theOF PENSIONS; Hon. Douglas R. Forrester, Director of the Division of Pensions; and The Police and Firemen's Retirement System of New Jersey, Defendants-Respondents. () Nos. , , A-5124-86T5 and . |
| Court | New Jersey Superior Court — Appellate Division |
Ernest G. Ianetti, for Edwin Boylan, et al in A-4578-86T5 (Ernest G. Ianetti on the brief); Brown & Brown, P.C., of counsel).
Patrice M. Connell, Deputy Atty. Gen., for respondents in A-4578-86T5 (Michael R. Clancy, Deputy Atty. Gen., of counsel; Patrice M. Connell, on the brief).
Arnold Steinhaus, Clinton, Irvington Tp. in A-4578-86T5.
Glenn A. Grant, Corp. Counsel, Newark, for City of Newark in A-4578-86T5 (Alison Brown Jones, Asst. Corp. Counsel, on the brief).
Schlesinger, Schlosser, Foy & Harrington, Mount Holly, on letter in lieu of amicus curiae brief on behalf of Firefighters' Ass'n of New Jersey in A-4578-86T5 (Thomas A. Gonzoph on letter in lieu of amicus curiae brief).
Segreto & Segreto, Haledon, for appellants William J. Comer, et al in A-5124-86T5 (James V. Segreto of counsel and on the brief).
Ralph L. DeLuccia, Jr. Corp. Counsel, Paterson, for respondent City of Paterson in A-5124-86T5 (Ralph L. DeLuccia on statement in lieu of brief).
John J. McKniff, Hawthorne, for respondent City of Passaic in A-5124-86T5 (John J. McKniff on letter of nonparticipation).
Frank J. Cozzarelli, Belleville, for respondent Belleville Tp. in A-5124-86T5 (Frank J. Cozzarelli on statement in lieu of brief).
Joseph C. Dickinson, for respondent Township of Montclair in A-5124-86T5 (Joseph C. Dickinson on statement in lieu of brief).
Mervyn R. Montgomery, Clifton, for appellant Alexander M. Beattie, Jr. in A-4833-86T5 (Mervyn R. Montgomery, on the brief).
Gorman & Goodkin, Rio Grande, for appellants Gioacchino Fiorentino, et al in A-4503-86T5 (Bruce M. Gorman, on the brief).
W. Cary Edwards, Atty. Gen., for respondents in A-5124-86T5, A-4833-86T5 and A-4503-86T5 (Michael R. Clancy, Deputy Atty. Gen., of counsel; Patrice M. Connell, Deputy Atty. Gen., on the brief).
Before Judges PETRELLA, DREIER and BAIME.
The opinion of the court was delivered by
PETRELLA, P.J.A.D.
The appeals we consider in this opinion involve challenges to the enforcement of early mandatory retirement provisions for law enforcement officers and firefighters who are enrolled in the Police and Firemen's Retirement System (P & FRS) or the Public Employees Retirement System (PERS). 1
The facts are not disputed in any of these appeals. All plaintiffs were advised by a February 19, 1987 directive issued by the Division of Pensions (Division) in the State Department of the Treasury, based on legal advice from the Attorney General, that they had to retire because they were over age 65. In the appeal brought by Edward Boylan and others, all of the plaintiffs serve as officers in various positions in police and fire departments. The plaintiffs include one police chief, four deputy chiefs, three police captains and one detective. They also include one fire chief, two battalion chiefs and two captains from fire departments. An additional plaintiff named in the complaint is one superintendent Nixon. Each plaintiff is between the age of 65 and 70 years and is a member of either the P & FRS or the PERS.
In the Comer appeal plaintiffs, paid fire chiefs in their respective municipalities, are between ages 65 and 70, and are members of the P & FRS. In the third appeal Beattie is a deputy fire chief who is 68 years of age. In the Fiorentino appeal the plaintiffs include a fire captain, the City of Ocean City, a collective bargaining representative and Firemen's Mutual Benevolent Association, Local 27.
The plaintiffs in each of these matters, with the exception of the Beattie appeal, instituted suit seeking injunctive relief against the enforcement of the mandatory retirement requirement. The matters were transferred to the Appellate Division in three of the appeals on orders entered by the trial court. Beattie took a direct appeal to this court from the mandatory retirement directive issued by the Division of Pensions and sought and obtained injunctive relief pending disposition of the appeal.
We hold that supervisory law enforcement officers who are not directly involved in law enforcement and supervisory firefighters who are not directly and primarily involved in firefighting are not subject to the federal exception to the allowed mandatory retirement of certain law enforcement officers and firefighters authorized by the 1986 federal amendments to the Age Discrimination in Employment Act and its general prohibitions against age discrimination.
Although mandatory retirement, particularly for policemen and firemen, is not an unusual requirement, clouds of uncertainty arose as a result of competing concepts. On the one hand, employees and their unions through the collective bargaining process sought pension and retirement programs with greater benefits and the flexibility for earlier retirement. On the other hand, as life expectancies have grown, there has been concern expressed about refusals to hire people because of advancing age as well as forced early retirements. Out of this competition between employer and employee and old and young arose several other issues: the interest of some employees in early mandatory retirement for supervisors and people with greater seniority to create vacancies for younger people, as well as objections to forced retirement based on age without a reasonable and bonafide occupational requirement. 2
New Jersey's Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (L.A.D.), and its amendments since its original adoption in 1945, illustrates the competing interests of the young and the old. N.J.S.A. 10:5-2.1 provides that:
Nothing contained in this act or in the act to which this is a supplement shall be construed to require or authorize any act prohibited by law ... nor to prohibit the establishment and maintenance of bonafide occupational qualifications or the establishment and maintenance of apprenticeship requirements based upon a reasonable minimum age nor to prevent the termination or change of the employment of any person who in the opinion of his employer, reasonably arrived at, is unable to perform adequately his duties, nor to preclude discrimination among individuals on the basis of competence, performance, conduct or any other reasonable standard, nor to interfere with the operation of the terms or conditions and administration of any bonafide retirement, pension, employee benefit or insurance plan or program. [emphasis supplied.]
New Jersey's enactments, discussed infra, were affected in various ways by developments with respect to the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA), which became effective in 1968, and which was the subject of subsequent conflicting amendments. The ADEA made findings that arbitrary discrimination in employment because of age "burdens commerce and the free flow of goods and commerce." 29 U.S.C. § 621(a)(4). It barred discrimination in hiring or discharge on the basis of age, except where there either was "a bonafide occupational qualification" (BFOQ), or a pension or retirement plan was not a subterfuge to evade the purposes of the ADEA. 29 U.S.C. § 623(f)(1) and (2).
In 1974 the ADEA expanded its definition of the term "employer" to include "a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency...." 29 U.S.C. § 630(b)(2). Nevertheless, the states, including New Jersey, did not feel the impact of the ADEA at that time. This law was not considered applicable to the states because of a Tenth Amendment question, or at least that was an unresolved question. While the issues were being challenged in various federal courts, federal firefighters and law enforcement personnel were essentially exempt from the coverage of the act by virtue of the federal Civil Service Laws. Cf. 5 U.S.C. § 8335(b) and 5 C.F.R. § 831.09 et seq. (regulations relating to 5 U.S.C. § 8335(b)).
In 1983 the United States Supreme Court decided EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), which held that the extension of the ADEA to the states and local governments was not violative of the Tenth Amendment, but constituted a valid exercise of federal authority under the Commerce Clause. Essentially in response to that opinion...
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