Bedford v. Riello

Justice ALBIN,

concurring in part, dissenting in part.

This Court has been charged with interpreting the simple words of N.J.S.A. 45:9-14.5: “the practice of chiropractic is defined as ... ‘[a] system of adjusting the articulations of the spinal column by manipulation thereof.’ ” Those words clearly restrict the scope of chiropractic care in New Jersey to manipulations of spinal joints. Nevertheless, the board governing the practice of chiropractic promulgated a regulation broadening the scope of chiropractic to “the adjustment and/or manipulation of the articulations of the spine and related structures.” N.J.A.C. 13:44E-1.1(a) (emphasis added).1 In effect, the board arrogated to chiropractors a power not authorized by the statute. Through the guise of a regulation, the board may not rewrite a statute. Cooper Univ. *228Hosp. v. Jacobs, 191 N.J. 125, 141, 922 A.2d 731 (2007) (explaining that when agency interprets statute, it “ ‘may not ... give the statute any greater effect than its language allows’” (quoting Saint Peter’s Univ. Hosp. v. Lacy, 185 N.J. 1, 13, 878 A.2d 829 (2005))). In doing so here, the board has manipulated the words of the statute to allow chiropractors to manipulate every joint throughout the body. Because the majority upholds the board’s errant interpretation, I cannot join in Part V of its opinion.

Nowhere in the statute is there any suggestion that chiropractors are permitted to manipulate “related structures” of the spine. Although we give considerable weight to an administrative agency’s interpretation of a statute it is charged with enforcing, ultimately we are not bound by an agency’s misinterpretation of the law. Utley v. Bd. of Review, 194 534, 551, 946 A.2d 1039, 1048-49 (2008); see also Shim v. Rutgers, 191 N.J. 374, 390, 924 A.2d 465 (2007) (“[I]f a regulation is ‘plainly at odds with the statute, [the Court] must set it aside.’” (second alteration in original) (quoting In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489, 852 A.2d 1083 (2004))).

I disagree with the majority’s view that the definition of chiropractic in N.J.S.A. 45:9-14.5, which was adopted in its current form in 1953, see L. 1953, c. 233, § 3, was superseded by the later enactment of the Chiropractic Board Act in 1989, L. 1989, c. 153 (codified at N.J.S.A. 45:9-41.17 to -41.27). See ante at 224-25, 948 A.2d 1281-82. While the 1989 Act makes several references to what chiropractors may do, it did not purport to alter the 1953 definition of chiropractic. That is clear because the 1989 Act specifically provides that “[t]he scope of practice of chiropractic shall remain as defined in existing statutes.” N.J.S.A. Thus, the definition contained in the pre-existing statute— N.J.S.A. not altered by the 1989 Act’s passage and remains legally binding.

I realize that chiropractors throughout the state have come to rely on the Board’s interpretation of the scope of chiropractic, and that it would be unfair to expose them to liability on the basis of *229that reliance. For that reason, I would invalidate N.J.AC. 13:44E-l.l(a) prospectively. See Reuter v. Borough Council of Fort Lee, 167 N.J. 38, 41-43, 768 A.2d 769 (2001) (holding that ordinance ran afoul of statute, but applying decision prospectively because of “long-term interpretation of the law” and “reliance” on that interpretation). Moreover, I would stay the effect of the invalidation for ninety days to allow the Legislature, if it wished, to enact supplemental legislation expanding the scope of chiropractic to conform with current practices. Cf. Lewis v. Harris, 188 N.J. 415, 463, 908 A.2d 196 (2006) (giving Legislature 180 days to “either amend the marriage statutes or enact an appropriate statutory structure” providing “committed same-sex couples ... the full rights and benefits enjoyed by heterosexual married couples”); N.J. Coal. Against War in the Middle E. v. J.M.B. Realty Corp., 138 326, 332, 379, 650 A.2d 757 (1994) (concluding that defendant shopping centers violated plaintiffs’ free speech rights, but staying judgment for sixty days to allow defendants “time to prepare regulations and procedures concerning applications to leaflet and the activity itself’), cert. denied, 516 U.S. 812, 116 S.Ct. 62, 133 L.Ed.2d 25 (1995). If the Legislature erred in limiting the scope of chiropractic in 1953, the this say so.

I agree with the result the majority reaches regarding the application of the regulation to the parties before us. I therefore respectfully concur in Parts I through IV and Parts VI and VII of the majority’s opinion, and in the judgment of the Court.

Justice RIVERA-SOTO joins in this opinion. For affirmance as LONG, LaVECCHIA, WALLACE and Concurrence in Part/Dissent in ALBIN and

As the majority notes, originally the State Board of Medical Examiners governed chiropractic in New Jersey, but the State Board of Chiropractic Examiners has since taken over that role. Ante at 217, 218, 948 A.2d 1272.