STATE OF NEW JERSEY v. PHILIP D. ZACCHE

NOT FOR PUBLICATION WITHOUT THE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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      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.


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      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).


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      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


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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.


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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


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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.




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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


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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."


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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


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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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