dissenting.
Because retroactive legislation undermines the ability of individuals to act in their own interests, to avoid acting in ways that will harm them, and “to plan [their] conduct with reasonable certainty of the legal consequences,” it has always been considered unfair. Charles B. Hochman, The Supreme Court And The Constitutionality of Retroactive Legislation, 73 Harv. L.Rev. 692, 692 (1960). Indeed, “[t]he bias against retroactive laws is an ancient one.” Elmer E. Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn. L.Rev. 775, 775 (1936). The Greeks opposed retroactivity as unjust and Roman law contained the same admonition. Ibid. It was in connection with that view of retroactivity that the doctrine of manifest injustice developed in English common law where it took the form of a rule of interpretation. Id. at 776. The doctrine provided essentially that courts will not interpret a statute in a way that attributes an *580unjust intention to the Legislature. Id. at 778. Because retroac-tivity was viewed as fundamentally unjust, where there was room for statutory interpretation, courts would invoke the doctrine of manifest injustice and apply statutes prospectively.
[Y]et it was not applied as a rule of limitation on the power of the legislature. The courts and commentators viewed it as a rule to guide the courts, but that Parliament, if it desired, could pass a statute to apply to a past time was always cleai-. [Evidence] showed that the Prince could make a law operate retrospectively if he made it expressly clear that such was his will, and the common law followed this interpretation of the rule. Thus, this principle in the English common law meant that the courts, in the exercise of their function of interpreting the law in the cases which came before them, viewed themselves as bound by the rule of construction that no law should be given an operation from a time prior to its enactment unless Parliament had expressly provided that it should have such an effect or unless the words of the Act could have no meaning except by application to this past time. Because a retroactive law was unjust the judges insisted that they would not assume that Parliament meant a statute in general terms to be applied retrospectively.
[Ibid. (footnotes omitted).]
Thus there has always been a clear line of demarcation regarding the applicability of the principle of manifest injustice — it can only apply to the interpretation of a statute but cannot affect the outcome where a clear statute requires retroactivity.
When the principle of manifest injustice found its way into the law of the United States, it took the same form as in England, as a rule of interpretation. Id. at 776. In the 1801 case of United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801), Chief Justice Marshall recognized the principle, acknowledging that although “a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights or parties,” no court may contest its obligation, if the law is constitutional, to enforce Congress’s intent to apply a statute retroactively. Id. at 110, 2 L.Ed. at 51. See also United States v. Heth, 7 U.S. (3 Cranch.) 399, 413, 2 L.Ed. 479 (1806) (“Words in a statute ought not be given retrospective operation, unless they are so clear, strong, and imperative, that no other meaning can be annexed to them, or unless the intention of the Legislature cannot be otherwise satisfied.”).
*581Later case law from the United States Supreme Court entrenched the rule as one of construction and fleshed out its contours. In Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964), the Court denied retroactivity to a regulation, that was “not explicitly so requiring” such application because “the first rule of construction” requires a court to avoid retroactive operation of a statute that interferes with “antecedent rights ... unless such be ‘the unequivocal and inflexible import of the terms and the manifest intention of the legislature.’ ” Id. at 160, 84 S.Ct. at 622, 11 L.Ed.2d at 584 (quoting Union Pac. R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 34 S.Ct. 101, 103, 58 L.Ed. 179, 182 (1913)) (citing in footnote Claridge Apartments Co. v. Comm’r, 323 U.S. 141, 164, 65 S.Ct. 172, 185 89 L.Ed. 139, 153 (1944); Smead, supra, 20 Minn. L.Rev. at 775-81).
Relying on Greene, the United States Supreme Court in Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476, 488 (1974) reiterated the notion that where legislative intent is clear, the legislation should be applied as written and that manifest injustice is not a part of the analysis. See also Mark Strasser, Constitutional Limitations and Baehr Possibilities: On Retroactive Legislation, Reasonable Expectations, and Manifest Injustice, 29 Rutgers L.J. 271, 300 (1998) (“[The Bradley Court] suggested] that where legislative intent is clear, the legislation should be applied as intended.”).
Somehow, with the passage of time, and despite citing the previously outlined United States Supreme Court precedents, our courts came to misunderstand the rule of manifest injustice as one empowering them to rewrite clear legislative enactments regarding retroactivity. See, e.g., Nobrega v. Edison Glen Assocs., 167 N.J. 520, 772 A.2d 368 (2001); Nelson v. Bd. of Educ. of Old Bridge, 148 N.J. 358, 689 A.2d 1342 (1997); In re D.C., 146 N.J. 31, 679 A.2d 634 (1996); Phillips v. Curiale, 128 N.J. 608, 608 A.2d 895 (1992); Edgewater Inv. Assocs. v. Borough of Edgewater, 103 N.J. 227, 510 A.2d 1178 (1986); N.J. Dep’t of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 468 A.2d 150 (1983); Gibbons v. *582Gibbons, 86 N.J. 515, 432 A.2d 80 (1981). The source of the mistake was likely misconstruing manifest injustice as an “equitable” doctrine rather than as an interpretative yardstick. To be sure, the rule has equitable overtones insofar as it declines to attribute unjust intentions to the Legislature in statutory interpretation cases. That is quite different, however, from suggesting that courts have power to disregard clear legislative enactments because they are not in conformity with the court’s view of what is fair.
I do not fault my colleagues for recognizing our prior precedent, only for failing to repudiate it. Our Constitution provides for the separation of powers. N.J. Const. art. III, § 1. Although the notion of separation of powers does not require “an absolute division among the three branches of government,” Gilbert v. Gladden, 87 N.J. 275, 281 n. 3, 432 A.2d 1351 (1981) (citation omitted), we have recognized that “[i]ts purpose is to safeguard the ‘essential integrity’ of each branch of government.” Id. at 281, 432 A.2d 1351 (citing Massett Bldg. Co. v. Bennett, 4 N.J. 53, 57, 71 A.2d 327 (1950)). Here, by applying the mistaken interpretation of the doctrine of manifest injustice adopted in our prior ease law, my colleagues have infringed upon the “essential integrity” of the legislative process by substituting their own judgment for that of the Legislature and in so doing have continued us on the wrong path.
In my view, aside from a declaration of unconstitutionality, only two dispositions are available in this case. If the Court determines that N.J.S.A. 54:38-1 is either silent or ambiguous regarding retroactive effect, it can interpret the statute to avoid manifest injustice. On the contrary, if the Court declares the statute to unambiguously require retroactive application, there is no room for interpretation and the statute must be applied as written. Because we cannot both conclude that the Legislature has spoken clearly and unambiguously about its intentions and at the same time rely on our view of equity to achieve a different result, I *583would affirm the judgment of the Appellate Division. I therefore respectfully dissent.
Justice HOENS join in this opinion. For affirmance in part/reversal in part/remandment — Justices LaVECCHIA, ALBIN, WALLACE and RIVERA-SOTO — 4. For dissent — Justices LONG and HOENS — 2.