Brown v. State Dept. of Personnel

607 A.2d 1354, 257 N.J. Super. 84
CourtNew Jersey Superior Court Appellate Division
DecidedJune 12, 1992
StatusPublished
Cited by10 cases

This text of 607 A.2d 1354 (Brown v. State Dept. of Personnel) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. State Dept. of Personnel, 607 A.2d 1354, 257 N.J. Super. 84 (N.J. Ct. App. 1992).

Opinion

257 N.J. Super. 84 (1992)
607 A.2d 1354

DOUG BROWN, APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF PERSONNEL AND CITY OF ATLANTIC CITY, RESPONDENTS.

Superior Court of New Jersey, Appellate Division.

Submitted April 29, 1992.
Decided June 12, 1992.

*85 Before Judges KING, BROCHIN and CARCHMAN.

Goldenberg, Mackler & Sayegh, attorneys for appellant (Keith A. Bonchi, on the brief).

Robert J. Del Tufo, Atty. Gen., attorney for respondent, (Mary C. Jacobson, Deputy Atty. Gen., of counsel; Joann Fitzpatrick, Deputy Atty. Gen., on the brief).

Paul J. Gallagher, attorney for respondent City of Atlantic City joined in respondent State of New Jersey's brief.

The opinion of the court was delivered by CARCHMAN, J.S.C. (temporarily assigned).

Appellant, Douglas Brown (Brown), a veteran of the 1982 Lebanon peacekeeping mission, appeals from a final determination of Commissioner of the Department of Personnel (DOP) denying him a veteran's preference on the competitive list for the position of firefighter. The issue presented on this appeal is whether the recent amendments, L. 1991 c. 390 § 1, ("amendments"), to the veteran's preference statute, N.J.S.A. 11A:5-1(b), formerly N.J.S.A. 11:27-1(b), which includes in the definition of "veteran" persons who participated in the Lebanon Peacekeeping Mission, Grenada Peacekeeping Mission, Panama Peacekeeping Mission and Operation "Desert Shield/Desert Storm," should be applied retroactively. We conclude that the *86 amendment should be applied prospectively and affirm the decision of the Commissioner.

I.

In June, 1988 Brown had submitted documentation demonstrating his service in the United States Navy and his participation in the Lebanon Peacekeeping Mission. At the time of Brown's application, only veterans of World War I, World War II, the Korean conflict and the Vietnam conflict, as well as specified military engagements prior to World War I, were eligible for veteran's preference in accordance with the definition and terms of N.J.S.A. 11A:5-1(b). DOP had notified Brown on June 15, 1988 of his "non-veteran" status.

DOP announced an open-competitive examination for firefighter for Atlantic City with a closing date of February 28, 1991. Brown applied for the examination. The examination was conducted on June 22, 1991, and Brown was advised of the results in January, 1992. He ranked "116 non-veteran." If granted veteran status, Brown's rank would be elevated to tenth and virtually insure his appointment.

On January 16, 1992, Governor Florio signed L. 1991 c. 390 into law. This legislation, effective that same date, amended N.J.S.A. 11A:5-1(b) by adding to the definition of "veteran" those persons who served in the military during the Lebanon Peacekeeping Mission, the Grenada Peacekeeping Mission, the Panama Peacekeeping Mission and Operation "Desert Shield/Desert Storm" Mission. The amendments delineate the time periods of the military operations so that participation in the Lebanon Peacekeeping Mission refers to service on that mission during the period "on or after September 26, 1982."

Subsequent to the effective date of the amendments, Brown wrote to DOP asserting that because of the amendments, he should be recognized as a veteran on the list of qualified applicants. On February 26, 1992, Anthony J. Cimino, Commissioner of DOP, responded to Brown indicating that the benefits *87 extended by the new amendments would not be applied retroactively to the firefighter's list but assured Brown that he would be granted veteran's preference for all future exams.

On April 2, 1992, Brown improperly filed an action in the Law Division challenging DOP's decision. See, Pascucci v. Vagott, 71 N.J. 40, 53, 362 A.2d 566 (1976). The Law Division judge declined to hear the matter and determined that it should be transferred to and heard by this court. R. 2:2-3(a)(2); R. 1:13-4. Brown then correctly filed a notice of appeal from DOP's final determination denying Brown's veteran status. Brown also filed an application for emergent relief, R. 2:9-8, as appointments from the firefighter's list were about to be made. The application to stay appointments was denied but we accelerated the appeal. R. 2:9-2.

II.

The veteran's preference has long antecedents in the constitutional and statutory history of New Jersey. First enacted in 1932 as L. 1932 c. 122 § 3(29a), a supplement to legislation creating the merit system in New Jersey, L. 1908 c. 156, the early statute creating a veteran's preference was elevated to constitutional status by inclusion in the New Jersey Constitution of 1947 of this provision:

... preference in appointments by reason of active service in any branch of the military or naval forces of the United States in time of war may be provided by law. [N.J.Const. of 1947 art VII, § 1 para. 2].

In implementing this constitutional prerogative, the Legislature has from time to time amended N.J.S.A. 11A:5-1(b) to reflect United States involvement in military operations and conflicts, as well as other special circumstances warranting legislative recognition. See, e.g., the 1967 amendment which included as "veterans" persons who served as cadets or midshipmen at one of the service academies during the period of time relating to the Vietnam conflict. L. 1967 c. 312, § 1. In sum, the veteran's preference "rewards those whose military commitments ... were of such a nature and duration as to *88 interfere substantially with an individual's civilian status." McHale v. Civil Serv. Comm'n, 178 N.J. Super. 371, 380, 429 A.2d 373 (App.Div. 1981).

The legislative practice of incorporating a number of military operations in one legislative act is not unique to the present amendments. In fact, the earliest legislative creation of the veteran's preference in 1932 included an expanded list of military engagements in defining the term "veteran." Included in the definition were veterans of the Indian Wars and Uprising, Spanish American War, Philippine Insurrections and Expeditions, Peking Relief Expedition, Cuban Occupations (both 1898 and again in 1906), Mexican Punitive Expedition, Mexican Border Patrol and World War I. This 1932 amendment included United States military involvement from the late 19th Century to 1918. The recent amendments spanning a period of nine years and four military engagements follow the earlier pattern and reflect the legislative decision to extend the veteran's preference to veterans of Lebanon, Grenada, Panama Peacekeeping Missions and Operation Desert Shield/Desert Storm. Against this historical perspective, we examine the issues presented on this appeal.

III.

In determining whether a statute should receive retroactive application, we restate the general rule that statutes relating to substantive rights should be construed prospectively unless the legislature indicates otherwise. Twiss v. State, Dep't of Treasury, 124 N.J. 461, 591 A.2d 913 (1991); Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 95, 577 A.2d 1239 (1990); Gibbons v. Gibbons, 86 N.J. 515, 521, 432 A.2d 80 (1981); Carnegie Bank v. Shalleck, 256 N.J. Super. 23, 606 A.2d 389 (App.Div. 1992); Fasching v. Kallinger, 227 N.J. Super. 270, 546 A.2d 1094 (App.Div.

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Bluebook (online)
607 A.2d 1354, 257 N.J. Super. 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-state-dept-of-personnel-njsuperctappdiv-1992.