State v. Zacche
| Decision Date | 02 December 2020 |
| Docket Number | DOCKET NO. A-5118-18T1 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. PHILIP D. ZACCHE, Defendant-Appellant. |
| Court | New Jersey Superior Court – Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Vernoia and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0594-19.
Samuel J. Halpern argued the cause for appellant.
Lauren Bonfiglio, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Lauren Bonfiglio, of counsel and on the brief).
Defendant Philip D. Zacche appeals from the June 27, 2019 Law Division order compelling the forfeiture of his retirement pension in accordance with N.J.S.A. 43:1-3.1. We affirm, substantially for the reasons set forth in Judge Mary C. Jacobson's cogent oral opinion.
Defendant was a Jersey City police officer from December 1979 until he retired in June 2017. He held the position of Chief of Police from October 2014 to June 2017. Accordingly, he qualified to participate in the New Jersey Police and Fireman's Retirement System (PFRS) and received a monthly retirement benefit of $11,915, as well as partially subsidized health insurance following his retirement.
From 2010 to 2014, defendant worked off duty and provided security for the Jersey City Housing Authority (JCHA). In the federal information detailing the allegations against defendant, the United States Attorney for the District of New Jersey asserted that defendant submitted timesheets to the JCHA for shifts he never worked, and accepted $31,713 in payments for work he did not perform.
On January 5, 2018, defendant pled guilty to a violation of 18 U.S.C. § 666(a)(1)(A). He was ordered to pay $52,856 in reimbursement, fines, and forfeiture, and sentenced to a two-year probationary term.
On March 26, 2019, the State filed a verified complaint and order to show cause seeking, among other relief, defendant's permanent disqualification from any public position. The complaint alleged defendant's federal conviction was for a crime substantially similar to the crimes enumerated under N.J.S.A. 43:1-3.1(b), which required the complete forfeiture of all benefits he earned as a PFRS member. Defendant objected to the requested forfeiture of his pension and retirement benefits, but did not contest the State's request for his permanent disqualification from holding a public position.
Judge Jacobson granted the State's application to proceed summarily and heard oral argument. During the argument, defendant contended forfeiture of his pension and retirement benefits violated his substantive and procedural due process rights, as well as his right to equal protection of the law. Judge Jacobson disagreed. Even though the judge acknowledged defendant suffered significant penalties due to his criminal conduct, she ordered that defendant: (1) forfeit any public employment, office, or position held by him, including his position as a Jersey City police officer; (2) be forever disqualified from holding any office or position of honor, trust, or profit under this State; and (3) forfeit all pension or retirement benefits earned as a member of a State-administered pension fund or retirement system.
On appeal, defendant presents the following arguments for our consideration:
We review questions of law de novo. State v. Steele, 420 N.J. Super. 129, 133 (App. Div. 2011) (citing In re Liquidation of Integrity Ins. Co., 193 N.J. 86, 94 (2007)). We accord no special deference to a trial court's interpretation of the law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted).
Legislative intent is the primary concern in interpreting a statute, and "the best indicator of that intent is the statutory language." Steele, 420 N.J. Super. at 133 (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). Courts do not "engage in conjecture or surmise which will circumvent the plain meaning" of a statute. Ibid.
Like all statutes, N.J.S.A. 43:1-3.1 is presumed constitutional. Whirlpool Props., Inc. v. Dir., Div. of Taxation, 208 N.J. 141, 175 (2011). A legislativeact will only be declared void if "its repugnancy to the Constitution is clear beyond a reasonable doubt." Harvey v. Bd. of Chosen Freeholders, 30 N.J. 381, 388, (1959) (citing Gangemi v. Berry, 25 N.J. 1, 10 (1957)). The "heavy burden" of establishing invalidity rests with the party challenging the statute. State v. Trump Hotels & Casino Resorts, 160 N.J. 505, 526 (1999). Here, defendant has not met his heavy burden.
Both the United States Constitution and the New Jersey Constitution guarantee due process to individuals. See U.S. Const. amend. XIV, § 1 (); N.J. Const. art. I, ¶ 1 (). "Insofar as most rights are concerned, a state statute does not violate substantive due process if the statute reasonably relates to a legitimate legislative purpose and is not arbitrary or discriminatory." Greenberg v. Kimmelman, 99 N.J. 552, 563 (1985). A statute survives a substantive due process attack if it is "supported by a conceivable rational basis." Ibid. (citations omitted).
Here, the Legislature intended to compel a total forfeiture of a person's pension when that individual commits a crime specifically listed under N.J.S.A.43:1-3.1(b). It is undisputed defendant committed such a crime, i.e., "theft by deception, [where] the amount involved exceeds $10,000." N.J.S.A. 43:1-3.1(b)(2).
Forfeiture of a pension has long been a legitimate and appropriate consequence for dishonorable conduct. See Corvelli v. Bd. of Trs., 130 N.J. 539, 550 (1992); Eyers v. State, Bd. of Trs., 91 N.J. 51, 56 (1982). Based on defendant's admitted dishonorable conduct, and the straightforward language of N.J.S.A. 43:1-3.1(a), Judge Jacobson had no discretion to deviate from the statute by limiting or declining to enforce its provisions, including its provisions for forfeiture. See Steele, 420 N.J. Super. at 134. That is so because "[t]he statute plainly and unambiguously requires forfeiture of 'all of the pension or retirement benefit earned.'" Id. at 134-35.
Although complete forfeiture is a significantly punitive consequence in response to defendant's criminal conviction, it does not constitute a substantive due process violation, nor is it arbitrary. As Judge Jacobson noted when citing to Cedeno v. Montclair State Univ., 163 N.J. 473, 478 (2000) (citation omitted), it is "a harsh response to a problem serious enough to justify its harshness." The judge recognized defendant's forfeiture of his pension benefits was a consequence contemplated by the Legislature, since he used his status as apolice officer for approximately four years to obtain security work from the JCHA and engineered receipt of over $30,000 in unearned payments. N.J.S.A. 43:1-3.1's forfeiture requirement was intended to deter this type of criminal conduct. Therefore, the statute is legitimately tied to a rational basis and is constitutional. As applied to defendant, it does not violate his substantive due process rights.
In Point II, defendant argues that his procedural due process rights were violated, as he was not afforded a full evidentiary hearing. Again, we are not persuaded.
"In examining a procedural due process claim, we first assess whether a liberty or property interest has been interfered with by the State, and second, whether the procedures attendant upon that deprivation are constitutionally sufficient." Doe v. Poritz, 142 N.J. 1, 99 (1995) (citing Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994)). In that regard, we do not question that public employees have a protected property interest in their pension benefits. See Gauer v. Essex Cty. Div. of Welfare, 108 N.J. 140, 150 (1987). However, we also are satisfied the procedures associated with a...
To continue reading
Request your trial