NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5118-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PHILIP D. ZACCHE,
Defendant-Appellant.
_______________________
Argued October 28, 2020 – Decided December 2, 2020
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).
PER CURIAM
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.
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2
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.
A-5118-18T1
3
On appeal, defendant presents the following arguments for our
consideration:
POINT I
N.J.S.A. 43:3.1 IS UNCONSTITUTIONAL AS A
DENIAL OF SUBSTANTIVE DUE PROCESS OF
LAW BECAUSE IT SETS AN ARBITRARY,
UNREASONABLE AND UNWORKABLE
THRESHOLD FOR THE IMPOSITION OF TOTAL
FORFEITURE OF ALL PENSION BENEFITS
IRRESPECTIVE OF THE CRIMINAL SANCTIONS
IMPOSED AS WELL AS THE AMOUNT OF THE
MEMBER'S SERVICE.
POINT II
N.J.S.A. 43:1-3.1 IS UNCONSTITUTIONAL AS A
VIOLATION OF [DEFENDANT'S] RIGHT TO
PROCEDURAL DUE PROCESS OF LAW.
POINT III
N.J.S.A. 43:1-3.1 IS UNCONSTITUTIONAL
BECAUSE IT DEPRIVES [DEFENDANT] OF HIS
RIGHT TO EQUAL PROTECTION OF THE LAW.
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).
A-5118-18T1
4
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.
N.J.S.A. 43:1-3.1(a) provides, in part:
A person who holds [a] or has held any public office,
position, or employment, elective or appointive, under
the government of this State . . . who is convicted of
any crime set forth in subsection b. of this section, or
of a substantially similar offense under the laws of
another state or the United States which would have
been such a crime under the laws of this State, which
crime or offense involves or touches such office,
position or employment, shall forfeit all of the pension
or retirement benefit earned as a member of any State
or locally-administered pension fund or retirement
system in which he participated at the time of the
commission of the offense and which covered the
office, position or employment involved in the offense.
As used in this section, a crime or offense that "involves
or touches such office, position or employment" means
that the crime or offense was related directly to the
person’s performance in . . . the specific public office
or employment held by the person.
[N.J.S.A. 43:1-3.1(a).]
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 legislative
A-5118-18T1
5
act 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 (the
due process clause bars a state from depriving "any person of life, liberty, or
property, without due process of law"); N.J. Const. art. I, ¶ 1 ("all persons . . .
have certain natural and unalienable rights . . . [such as] enjoying and defending
life and liberty, of acquiring, possessing, and protecting property"). "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.
A-5118-18T1
6
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 a
A-5118-18T1
7
police 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 pension forfeiture under
N.J.S.A. 43:1-3.1 are constitutionally adequate.
A-5118-18T1
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N.J.S.A. 43:1-3.1 delegates the function of determining forfeiture solely
to the judiciary. Whether the crime for which an individual is convicted falls
within those for which a forfeiture shall be required under N.J.S.A. 43:1 -3.1(a)
presents a legal issue for the court. In addition, the court must also determine
as a matter of fact and law whether the crime "involves or touches" the
individual's "office, position or employment." N.J.S.A. 43:1-3.1(a).
Here, we easily conclude defendant's offense fits within this statute.
Moreover, the pertinent facts supporting our conclusion were established when
defendant pled guilty. Subsequently, he was properly noticed and afforded an
opportunity to be heard before Judge Jacobson on the issue of his pension
forfeiture. As defendant pled guilty to one of the enumerated offenses under the
statute, and he does not dispute that his offense touched upon his employment
as a Jersey City police officer, defendant's due process rights were satisfied
without an evidentiary hearing.
In Point III, defendant contends there is no rational basis for either the
$10,000 threshold set forth in N.J.S.A. 43:1-3.1 or the complete forfeiture of his
pension benefits required by the statute. Again, we are not convinced.
The Fourteenth Amendment of the United States Constitution provides
that a state may not "deny to any person within its jurisdiction the equal
A-5118-18T1
9
protection of the laws." U.S. Const. amend. XIV, § 1. A "[f]ederal equal-
protection analysis employs different tiers of review: strict scrutiny when an act
involves a fundamental right or a suspect class; intermediate scrutiny when an
act involves a semi-suspect class; and minimal rational-basis scrutiny in all other
cases." Drew Assocs. of N.J., L.P. v. Travisano, 122 N.J. 249, 258 (1991) (citing
Brown v. City of Newark, 113 N.J. 565, 573 (1989)).
Equal protection requires that classifications not be arbitrary. Portiz, 142
N.J. at 91 (citing State v. Mortimer, 135 N.J. 517, 536 (1994)). "[W]here
individuals in the group affected by a law have distinguishing characteristics
relevant to interests the State has the authority to implement, . . . courts have
been very reluctant . . . to closely scrutinize legislative choices . . . . In such
cases, the Equal Protection Clause requires only a rational means to serve a
legitimate end." Id. at 91-92 (quoting City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 441-42 (1985)).
Employees who commit certain enumerated crimes warranting forfeiture
of their pension benefits are not within a suspect classification, so the statute is
reviewed for a legitimate rational basis. Such a rational basis is evident here.
Indeed, the legislative intent of the challenged statute is "to preclude those who
have once violated the public trust from [having] a second opportunity."
A-5118-18T1
10
McCann v. Clerk, City of Jersey City, 338 N.J. Super. 509, 517 (App. Div. 2001)
(quoting Cedeno, 163 N.J. at 477) (citations omitted). The Legislature created
the statute to protect the public and advance this objective, rather than protect
the offender. Ibid. (citing Pastore v. Cty. of Essex, 237 N.J. Super. 371, 377-78
(App. Div. 1989)).
Additionally, the $10,000 threshold set forth in the statute is rational. As
Judge Jacobson correctly observed, "the [L]egislature gets to draw lines. That's
part of what their responsibility is." Here, the Legislature decided that a breach
of the public trust involving misappropriation of funds in excess of $10,000 is
where the line should be drawn, and where the severe penalty of a total pension
forfeiture should be imposed. This statute rationally links the goals of crime
deterrence to the protection of public funds. Therefore, neither the statute nor
the $10,000 threshold violates defendant's right to equal protection.
We hasten to add that prior to the enactment of N.J.S.A. 43:1-3.1, the New
Jersey Supreme Court established a balancing test and relevant factors for courts
to apply when presented with a pension forfeiture claim. Uricoli v. Bd. of Trs.,
91 N.J. 62, 77-78 (1982). The Uricoli factors, which were later codified in
N.J.S.A. 43:1-3(c), apply "only to those claims for benefits where the specific
pension statute is silent respecting the effect of a conviction for a crime relating
A-5118-18T1
11
to the applicant's public office." Borrello v. Bd. of Trs., Pub. Emps. Ret. Sys.,
313 N.J. Super. 75, 77 (App. Div. 1998). Because defendant pled guilty to a
crime covered under N.J.S.A. 43:1-3.1, the Uricoli factors did not apply.
To the extent we have not addressed any remaining arguments, we are
satisfied they lack sufficient merit to warrant discussion in this opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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