RICHARD M. PESCATORE: . CHIEF JUSTICE RABNER: MAY WE PLEASE HAVE APPEARANCES
OF COUNSEL. RICHARD M. PESCATORE: GOOD AFTERNOON. RICHARD PESCATORE FOR
JAMES MEYERS. RAYMOND M. BALDINO: RAYMOND BALDINO APPEARING ON BEHALF OF THE
NEW JERSEY EDUCATION ASSOCIATION. DONNA ARONS: DONNA ARONS ASSISTANT GENERAL
GENERAL. CHIEF JUSTICE RABNER: GOOD AFTERNOON AND WELCOME. MR. PESCATORE,
PLEASE. RICHARD M. PESCATORE: MAY IT PLEASE THE COURT, CHIEF JUSTICE, JUSTICES,
COUNSEL. THE ALEXANDER SHALOM HAS CHANGED THEIR POSITION IN THIS CASE SEVERAL TIMES.
AND WHILE ORDINARILY I MAY ADDRESS THE NEWEST ISSUE THEY CAME FORWARD WITH IN THIS CASE,
I'M RELUCTANT TO DO SO BECAUSE IN ESSENCE I'M ACQUIESCING TO WHAT THEY'VE DESCRIBED THE
ISSUE TO BE. AND MY EXPERIENCE WHEN WE WIN AN ARGUMENT IS TO LET THE OTHER SIDE CRAFT
THE DEFINITION OF TERMS AND THEN YOU ARGUE THEIR DEFINITION AND I DISAGREE WITH THE FACT
THAT THIS IS A CASE ABOUT STATUTORY INTERPRETATION. THIS IS PURE AND SIMPLE, HAS
BEEN FROM THE BEGINNING, AN ESTOPPEL CASE. IN FACT, IT'S AN ESTOPPEL 2.0-CASE
IN A WAY. AND I THINK SOME OF THE FACTS ARE IMPORTANT TO ILLUSTRATE WHAT I'M -- THE POINT
I'M MAKING TO THE COURT. AND THAT IS THAT WHAT HAPPENED HERE IS WHEN MY CLIENT MR. MEYERS
RECEIVED THAT NOTICE FROM THE STATE HEALTH BENEFIT COMMISSION THAT THEY MADE A MISTAKE,
A UNILATERAL MISTAKE, HE WAS FLABBERGASTED AND THOUGHT TO HIMSELF THAT'S CLEARLY A MISTAKE,
I CAN FIX THIS. I'VE GOT THE DOCUMENTS. I'VE GOT THE COMMUNICATIONS WE HAD WITH THE
HUMAN RESOURCES, THE STATE HEALTH BENEFITS COMMISSION. THEY PAID ME FOR NEARLY TWO
YEARS. THIS IS A MISTAKE. SO HE APPEALED. AND HE WENT TO THE HEALTH BENEFITS COMMISSION
AND HE APPEALED. BUT THEY DIDN'T CHANGE THE DECISION. THEY UPHELD THE
DECISION AND THEY EXERCISED JURISDICTION OVER THE MATTER. THEY THEN SAID TO MR. MEYERS,
WELL, THIS DISPUTE IS GOING TO BE RESOLVED THIS WAY. THIS IS THE RULES OF THE GAME.
THIS IS THE WAY THIS MATTER WILL BE ENGAGED AND YOU WILL GO TO THE OFFICE OF ADMINISTRATIVE
LAW. YOU WILL GO CONSISTENT WITH THE ADMINISTRATIVE PROCEDURE ACT. AND WORK THIS
OUT WITH THE ADMINISTRATIVE LAW JUDGE. THIS IS HOW IT WILL BE DECIDED. ON THE
SOLE ISSUE OF ESTOPPEL, THEY SET THE RULES AND THE PARAMETERS. THE SOLE ISSUE. AND THEY
DID MORE. THEY SAID, YOU SHALL NOT -- YOU DO NOT BRING INTO THIS CASE THE ISSUE OF THE
STATUTORY MATTERS AT HAND. SO MY CLIENT TOOK OBVIOUSLY A FINANCIAL HIT. HE TOOK AN
ECONOMIC LOSS. HE'S LOSING MONEY DEDUCTED FROM HIS PENSION ON A MONTHLY BASIS. AND HE
HAS AN ECONOMIC HIT HE'S TAKEN. NOW HE'S BEFORE THE HEALTH COMMISSION. AND
HE'S GOT TO MAKE A DECISION. DOES HE EXPEND ADDITIONAL RESOURCES AND TIME TO DEAL WITH
THE ISSUE AND SOLVE THE MISTAKE THAT'S BEEN MADE. WELL, HE'S NOT GOING TO GO TO THE
ADMINISTRATIVE LAW JUDGE AND TRY A CASE ON HIS OWN. HE IS GOING TO SEEK AND OBTAIN COUNSEL
AND HE IS GOING TO PROCEED. AND WHAT'S HE GOING TO PROCEED ON? HE'S GOING TO PROCEED
ON THE ISSUE OF WHETHER OR NOT THERE'S PROMISSORY ESTOPPEL. THERE IS ESTOPPEL. WHETHER OR NOT
-- HE'S GOT ENOUGH. THE FACT THAT HE MOVED OUT OF STATE. BOUGHT A CONDO. BOUGHT A HOUSE.
MOVED HIS FAMILY. GAVE UP HIS RETIREMENT SITUATION THAT HE HAD WITH THE STATE POLICE
AND HIS ABILITY TO MOVE UP THE RANKS. DOES HE HAVE ENOUGH TO TICK THE BOX ON EQUITABLE
ESTOPPEL AND TO WIN. AND HIS DECISION TO EXPEND MORE RESOURCES AND TIME WAS, YES, BECAUSE
I AM -- AND HERE COMES THE SECOND ESTOPPEL, ESTOPPEL 2.0. I AM RELYING UPON THE FACT
THAT THE STATE HEALTH BENEFIT COMMISSION HAS SAID THAT THE SOLE ISSUE TO BE DECIDED WILL BE
DECIDED BY AN ADMINISTRATIVE LAW JUDGE AT TRIAL. SO HE TRIED THE CASE. HE DID VERY,
VERY WELL. IN FACT, THE ADMINISTRATIVE LAW JUDGE ACTUALLY DID ME SOMEWHAT OF A FAVOR
BY DENYING THE SUMMARY JUDGMENT APPLICATION, BECAUSE I THOUGHT THE RECORD WAS MORE THAN
ENOUGH TO NOT EVEN GO TO TRIAL. AND WE HAD A TRIAL, MUCH BETTER, A TRIAL ON THE MERITS,
WHERE HE HAD THE ABILITY TO CROSS-EXAMINE, PRODUCE WITNESSES. AND THE ONE WITNESS THAT
APPEARED FROM THE STATE HEALTH BENEFIT COMMISSION COULDN'T BE BETTER FOR OUR SIDE.
CHIEF JUSTICE RABNER: COUNSEL, COULD YOU TELL US WHAT YOU PERCEIVE THE LEGAL ISSUE TO BE
BEFORE THE COURT TODAY? RICHARD M. PESCATORE: THE LEGAL ISSUE BEFORE THE
COURT TODAY IS SPECIFICALLY WHETHER OR NOT THE APPELLATE DIVISION IMPROPERLY REFUSED TO
CONSIDER OR REVIEW THE FULLY TRIED ISSUE OF ESTOPPEL ON APPEAL IN CONTRAVENTION OF HIS
COURT'S PRECEDENCE AND WHETHER THE DEPARTURE BY THE STATE HEALTH BENEFIT COMMISSION WHICH
THE SHBC LIMITED MEYERS TO VIOLATED DUE PROCESS. CHIEF JUSTICE RABNER: YOU'VE
SAID TWICE NOW THAT THE SOLE AND EXCLUSIVE ISSUE IN THE CASE THAT WAS SENT TO THE L J
WAS ESTOPPEL. BUT THE HEALTH BENEFITS COMMITTEE SPECIFICALLY SAID SHE TRANSMITTED THIS
QUESTION ON ESTOPPEL TO THE AOL TO MAKE A DETERMINATION BECAUSE THERE WAS A FACTUAL
DISPUTE AND THE NEED FOR A FACTUAL RECORD TO BE DEVELOPED. TRANSMITTAL TO DETERMINE AN
ISSUE DOESN'T MEAN THAT'S THE ONLY ISSUE IN THE CASE AND THAT ANY LEGAL QUESTION NO LONGER
HAS A ROLE. DO YOU DISAGREE WITH THAT? RICHARD M. PESCATORE:
I DO, WITH ALL DUE RESPECT, BECAUSE THAT WAS ACTUALLY BROACHED BEFORE THE JUDGE AND THAT
STARTED -- IT WAS ACTUALLY BROUGHT UP BY THE DAG WHO WAS TRYING THE CASE. AND SHE HAD
SPECIFICALLY RULED, NO, WE'RE NOT HERE TODAY FOR THE STATUTE. WE'RE HERE TODAY ON THE
SOLE ISSUE OF ESTOPPEL. CHIEF JUSTICE RABNER: RIGHT. AND THAT'S BECAUSE --
AND I'M LOOKING AT THE LANGUAGE FROM THE STATE HEALTH BENEFITS FINAL ADMINISTERED
DETERMINATION, WHICH SAYS -- I'M LOOKING AT PAGE FOUR. SOLE QUESTION TRANSMITTED TO THE
AOL FOR DETERMINATION WAS WHETHER THE COMMISSION WAS EQUITABLY ESTOPPED. BECAUSE THAT
WAS IN DISPUTE. RICHARD M. PESCATORE: THAT WAS THE ONLY MATTER THAT WAS TO GO
BEFORE THE AOL. WHICH WAS, ESSENTIALLY, LET ME HEAR THE TESTIMONY AND SEE THE EVIDENCE
WHETHER OR NOT HE JUSTIFIABLY RE-LIED UPON THE MISTAKE. CHIEF JUSTICE RABNER:
ARE YOU SAYING THIS COURT SHOULD NOT AND THE APPELLATE DIVISION SHOULD NOT LOOK AT THE
STATUTE AT ALL. RICHARD M. PESCATORE: ABSOLUTELY NOT. THEY SHOULD NOT HAVE.
CHIEF JUSTICE RABNER: WHY IS THAT? RICHARD M. PESCATORE: BECAUSE
THAT WASN'T WHAT WAS AGREED TO AND WHAT MY CLIENT RE-LIED UPON IN EXPENDING ADDITIONAL
MONEYS AND EXPENDING ADDITIONAL RESOURCES TO COMBAT THE ISSUE AND TO FOLLOW UP ON HIS
APPEAL WHICH THEY EXERCISED JURISDICTION OVER. AND I NEVER HAD AN OPPORTUNITY TO DEVELOP
ANY OF THE RECORD, CONDUCT DISCOVERY DO ANYTHING ON THE STATUTORY ISSUE BELOW.
CHIEF JUSTICE RABNER: WHAT KIND OF DISCOVERY ON A STATUTORY ISSUE WOULD YOU HAVE CONDUCTED.
RICHARD M. PESCATORE: WELL, MORE ABOUT THE LEGISLATIVE HISTORY. CHIEF
JUSTICE RABNER: THAT'S A LEGAL ISSUE THAT COURTS DETERMINE THAT AND THAT WE CAN ADDRESS
IF APPROPRIATE. RICHARD M. PESCATORE: I UNDERSTAND. MORE ABOUT WHAT WAS GOING
ON IN TERMS OF THE THOUGHT PROCESSES OF OTHER TROOPERS AND WHAT WAS GOING ON IN THE CONTEXT
OF SECTION 87. CHAPTER 87. CHIEF JUSTICE RABNER: YOUR UNDERSTANDING OF THE
STATUTE? OTHER TROOPER's UNDERSTANDING OF THE STATUTE IS WHAT YOU'RE SUGGESTING WAS
MISSING? RICHARD M. PESCATORE: YES. IN THE SENSE THAT OTHER TROOPERS -- YES.
BECAUSE IT DOES BOOTSTRAP INTO THE ESTOPPEL ISSUE. IN OTHER WORDS, OTHER TROOPERS
BELIEVED THAT CHAPTER 87, WHICH CAME INTO EFFECT IN 2013 WHEN MY CLIENT BOUGHT HIS MILITARY
SERVICE CREDIT, GAVE YOU FREE HEALTH BENEFITS. CHIEF JUSTICE RABNER: LET ME
CUT TO THE CHASE AND TELL ME IF YOU HAVE A DIFFERENT VIEW. YOUR POSITION TODAY IS YOUR
CLIENT IS ENTITLED TO THESE BENEFITS AND THE AGENCY SHOULD BE EQUITILY ESTOPPED. THE
APPELLATE DIVISION, RIGHT OR WRONG, SAID, NO, WE'RE LOOKING AT THE LAW. WE DON'T NEED
TO GO FURTHER. ISN'T YOUR ARGUMENT TO US TODAY THAT THE APPELLATE DIVISION WAS WRONG,
NOT AS A MATTER OF DUE PROCESS, BUT THAT YOU'RE ENTITLED TO THESE BENEFITS, FOR WHATEVER
LEGAL ARGUMENTS INCLUDING THE ARGUMENT OF EQUITABLE ESTOPPEL THAT YOU CAN PRESENT TO
THIS COURT. RICHARD M. PESCATORE: YES. I THINK THAT'S WELL PUT. I THINK WE'RE
ENTITLED TO IT, ONE, BECAUSE OF THE EQUITABLE ESTOPPEL ISSUE. ONE BECAUSE THEY NEVER
LOOKED AT THE EQUITABLE ESTOPPEL ISSUE AT ALL. IN FACT SAID WE'RE NOT GOING TO SCRUTINIZE
THIS UNDER THE LENZO OF EQUITABLE ESTOPPEL. CHIEF JUSTICE RABNER: NO ONE'S
STOPPING YOU ARGUING ESTOPPEL TO US AND YOU CAN ARGUE THE APPELLATE DIVISION WAS WRONG.
SO LET'S START IF I COULD WITH THE FIRST QUESTION WITH RESPECT TO THE
DISTINCTION THAT'S DRAWN IN THE CASE LAW BETWEEN AN AGENCY TAKING AN ACTION THAT IS BEYOND
ITS JURISDICTION, WHICH IS ULTRA VIRES IN THE PRIMARY SENSE AND VOID, AND ENACTED AS A
REGULAR EXERCISE OF ITS AUTHORITY WHICH IS ULTIMATE VIRUS IN THE SECOND SENTENCE AND CAN
BE ESTOPPEL. DOES THE AGENCY HERE HAVE THE POWER, DID IT HAVE THE JURISDICTIONAL POWER
TO GIVE HEALTHCARE BENEFITS FREE OF CHARGE FOR AN INDIVIDUAL WHO DID NOT HAVE 20 YEARS
OF SERVICE IN JUNE OF 2011? RICHARD M. PESCATORE: IT DID HAVE JURISDICTIONAL
POWER AND IT EXERCISED THAT POWER TO SEND MY CLIENT TO THE AOL. IT HAS JURISDICTIONAL
POWER AND HAD THE AUTHORITY WHICH I BELIEVE THE. CHIEF JUSTICE RABNER: TO
SOMEONE WITH LESS THAN 20 YEARS. RICHARD M. PESCATORE: I WOULD RELY UPON
CHAPTER 87 AND I WOULD SAY THAT CHAPTER 87 AND YOU LOOK AT ALSO 53 I THINK IT'S COLON 5A-SIX
PARENS C WHICH DEALS WITH SERVICE CREDITS AND HOW MANY YOU CAN EXPEND IN ONE YEAR WHEN
YOU PUTHS IT. I THINK IF YOU LOOK AT CHAPTER 87 AND YOU LOOK AT THE LANGUAGE AND THAT'S
ON THE BRIEF ON PAGE SEVEN OF -- I'M LOOKING -- IT SAYS -- I'M JUST TAKING THE LANGUAGE
OUT OF 87. NOTWITHSTANDING ANY PROVISION OF THIS ACT TO THE CONTRARY, A MEMBER SHALL
NOT BE LIABLE TO ANY COSTS ASSOCIATED WITH THE HEALTH BENEFITS FOR IN THE ARMED FORCES
OF THE UNITED STATES. PARENTHESIS READING READING PARENTHESIS. AS A FULL TIME
COMMISSION OFFICER, NON-COMMISSIONED OFFICER OR TROOPER RENDERED AS A MEMBER.
CHIEF JUSTICE RABNER: DID YOUR CLIENT HAVE CREDIBLE SERVICE THAT HE HAD BOUGHT BACK IN
2011 WHEN CHAPTER 78 WENT INTO EFFECT. RICHARD M. PESCATORE: NO. THAT'S ONE
OF THE ISSUES. IN OTHER WORDS, IS THE SERVICE CREDIT CREDITED -- AND MY COLLEAGUE ON
THE AMICUS IS GOING TO ADDRESS THAT AS WELL. BUT IS THE SERVICE CREDIT CREDITED WHEN
PAYMENT IS MADE OR WHEN THE SERVICE IS RENDERED. RICHARD M. PESCATORE:
JUSTICE WAINER APTER: THE ISSUE HERE IS THAT THE STATUTE THAT ALLOWED YOUR CLIENT TO COLLECT
THE MILITARY SERVICE CREDIT AT ALL WAS NOT ENACTED UNTIL AFTER THE HEALTH BENEFITS
CHANGE WAS ENACTED, RIGHT? SO IN 2011 THERE WAS A LAW YOU HAVE TO PAY FOR HEALTH BENEFITS
AND IT'S ONLY IN 2013 THAT MEMBERS OF THE NEW JERSEY STATE POLICE CAN NOW GET THIS MILITARY
SERVICE CREDIT. RICHARD M. PESCATORE: THAT IS CORRECT. IN FACT THE RECORD
REFLECTS WHEN MY CLIENT FIRST GOT INTO THE STATE POLICE IT WASN'T AVAILABLE TO STATE TROOPERS
BUT IN 2013 WHEN IT BECAME AVAILABLE THERE WAS A HAPPY DANCE, IF YOU WILL, AMONG STATE
TROOPERS. AND THAT WAS WHAT WAS THE UNDERSTANDING OF STATE TROOPERS, THE SHBC,
THE HR DEPARTMENT FOR THE STATE POLICE. JUSTICE WAINER APTER: WHAT IS THERE
IN THAT 2013 LAW THAT SAYS THAT IT'S RETROACTIVE? BECAUSE IF THE LAW DIDN'T CHANGE UNTIL
2013 THEN HE OBVIOUSLY COULDN'T HAVE HAD THE MILITARY CREDITS IN 2011 BECAUSE SHE WAS
STATUTORILY PROHIBITED FROM GETTING THEM IN 2011. SO WHEN THE LAW CHANGES IN 2013 TO
ALLOW STATE POLICE MEMBERS TO GET THESE CREDITS, WHERE IT SAY IT'S RETROACTIVE AND THAT
THE CREDIT WILL APPLY AS OF THE DATE OF THE ACTUAL MILITARY SERVICE RATHER THAN AS OF
2013 OR WHETHER THEY'RE BROUGHT BACK. RICHARD M. PESCATORE: WELL, IT DOESN'T
AND THAT'S THE PROBLEM AND THAT'S PART OF THE AMBIGUITY AND PART OF THE FACT THAT IT'S
DEBATABLE. CHIEF JUSTICE RABNER: IS IT AMBIGUOUS -- I THINK WE NEED TO START
AT THE STATUTE ITSELF. 17.28 D B THREE, EMPLOYEES WHO HAVE 20 OR MORE YEARS OF CREDIT
TABL SERVICE ON THE EFFECTIVE DATE SHALL NOT BE SUBJECT TO THE PROVISIONS OF THIS SUBSECTION.
HOW DO YOU GET AROUND THAT? RICHARD M. PESCATORE: WELL, GET AROUND IT BY
YOU HAVE TO READ CHAPTER 87 WITH CHAPTER 78 AND YOU HAVE TO LOOK AT THEM TOGETHER AND
SAY TO YOURSELF, WELL, ALTHOUGH IT CAME IN, JUSTICE, AFTER CHAPTER 78, IT'S STILL A LAW
THAT CAME IN IN 2013 THAT DIRECTLY IMPACTS HEALTH BENEFITS FOR STATE TROOPERS THAT MUST BE
READ IN CONJUNCTION WITH 78. AND AT THE VERY LEAST, AND I UNDERSTAND IT IS A QUESTION
THAT IS DIFFICULT ON THE STATUTORY COMPONENT. IT'S A DIFFICULT QUESTION. BUT IT'S
DEBATABLE. IT IS A DEBATABLE QUESTION AND THAT GOES TO YOUR INITIAL QUESTION.
CHIEF JUSTICE RABNER: WHAT'S DEBATABLE? I DIDN'T READ ONE OF THE KEYWORDS HERE. IT'S
ON THE EFFECTIVE DATE OF P L 11 CHAPTER 78. WHAT'S THE DEBATABLE PORTION TO THAT PHRASE?
RICHARD M. PESCATORE: THERE IS THO DEBATABLE ASPECT OF THAT. IT'S A PLAIN
READING. WHEN YOU LOOK AT 87 HOWEVER AND YOU LOOK AT WHERE IT REFERENCES THAT NO BENEFITS
AT NO COST, THAT IS SOMETHING THAT'S BEING RE-LIED UPON THAT IS CLEARLY TO ESCAPE TO
SOME DEGREE THE HEALTH BENEFITS COMMISSION EXPERTISE THAT THEY SAY THEY HAVE AND THEIR
REG AUDITS. SO IT GOT BY THAT. SO IN GOING TO YOUR ORIGINAL QUESTION YOU ASKED ME ABOUT
THE NARROW ISSUE OF ULTIMATE VIRUS AND SECONDARY FIRSZ PRIMARY, THE CASE LAW THAT EVEN
MY ADVERSARILY LIES UPON INDICATES IT HAS TO BE A SLAM-DUNK TYPE STATUTE. NO QUESTION
WHATSOEVER ABOUT THE FACT THAT -- ITS PLAIN MEANING. AND I DISAGREE. I THINK IT IS A
DEBATABLE INTERPRETATION WHEN YOU LOOK AT CHAPTER 87. SO -- JUSTICE
PIERRE-LOUIS: SO CHAPTER 87 DIDN'T ONLY -- DOESN'T ONLY REFER TO HEALTH BENEFITS.
CHAPTER 87 ALLOWING STATE TROOPERS TO PURCHASE THEIR MILITARY TIME ALSO ALLOWED FOR
POTENTIAL EARLY RETIREMENT BECAUSE THEN THE YEARS THAT THOSE STATE TROOPERS WERE ABLE TO
PULTH WERE ADDED ONTO THEIR YEARS OF SERVICE WITH THE STATE POLICE SO THAT WAS A BENEFIT
OF CHAPTER 87 AS WELL. RICHARD M. PESCATORE: IT WAS A BENEFIT.
JUSTICE PIERRE-LOUIS: SO IT'S NOT SOLELY -- BECAUSE I KNOW YOU'RE SAYING WE NEED TO READ
THESE TOGETHER AND I THINK YOU SAID READING THOSE TWO STATUTES TOGETHER SHOWS THERE WAS
A CLEAR -- THERE WAS AN INTENT FOR A CHANGE IN THE HEALTH -- THERE WOULD BE HEALTH BENEFITS
AT NO COST. BUT THE OTHER BENEFIT WAS BEING ABLE TO ADD ON POSSIBLY A SIGNIFICANT AMOUNT
OF TIME TO THEIR TIME WITH THE STATE POLICE THAT COULD LEAD TO THE BENEFIT OF BEING ABLE
TO RE-TIRE EARLY. RICHARD M. PESCATORE: I AGREE. IN ADDITION, THE
THOUGHT, WHEN IT WAS PURCHASED IN 2013, WAS THAT IT IS WHEN THE SERVICE WAS RENDERED, NOT
WHEN THE PAYMENT WAS MADE. MEANING THAT HE WOULD THEN -- DOING THE MATH, HE WOULD THEN
BE WITHIN 20 YEARS. HE WOULD MAKE THAT 20-YEAR MILEPOST AND HE WOULD THEN BE ENTITLED
TO THE FREE BENEFITS. HE WOULD MEET THE STANDARD. JUSTICE WAINER APTER:
THE BENEFIT HE GOT WHEN HE WAS PURCHASING IN 2/0/13, DIDN'T THAT COME WITH THOSE NOTICES
THAT SPECIFICALLY SAID PURCHASE APPLICATIONS RECEIVED AFTER 6/28/11 ARE SUBJECT TO THE
RE-VISIONS. RICHARD M. PESCATORE: THAT WAS ONE OF THE PUBLICATIONS IN PLACE
ALONG WITH OTHER PUBLICATIONS IN PLACE AT THE TIME AS WELL AND ESSENTIALLY THE ACTUAL
PLAIN LANGUAGE OF CHAPTER 87 WHICH WAS RE-LIED UPON BY MY CLIENT AND OTHER STATE TROOPERS
IN PURCHASING THE SERVICE CREDITS. SO I THINK GOING BACK TO THE ORIGINAL QUESTION
YOU ASKED, CHIEF JUSTICE, IF YOU'RE FOCUSING IN ON SECONDARY VERSUS PRIMARY AND ULTRA
VIRES, WHATEVER, AGAIN FROM WHAT I START M.D. THE BEGINNING, REPUGNANT TO OUR POSITION
IN THIS CASE IN THE SENSE THAT THAT WASN'T THE ISSUE BECAUSE YOU EXERCISED JURISDICTION,
HEALTH COMMISSION, OVER MY CLIENT. YOU TOOK THIS APPEAL. YOU THEN SAID THAT ONLY --
WE'RE GOING ONLY USING THE ADMINISTRATIVE PROCEDURE ACT BEFORE AN ADMINISTRATIVE LAW
JUDGE ON THE ESTOPPEL ISSUES. AND WE SATISFIED THAT. WE WENT THROUGH THAT AND WE GAVE
UP. JUSTICE PATTERSON: ISN'T THAT RE-LATED TO THE FACT THAT THAT'S A VERY
FACT SPECIFIC ISSUE VERSUS THE STATUTORY INTERPRETATION ISSUE IS AN ISSUE OF LAW. I
MEAN, ISN'T THAT SOMETHING YOU SEE THAT AGENCIES DO, FIND THAT THERE IS A FACTUAL DISPUTE
AND SEND IT TO THE -- TO AN A L J FOR A DETERMINATION AS A CONTESTED CASE. ISN'T
THAT A NORMAL KIND OF PROCEDURE FOR AN AGENCY? RICHARD M. PESCATORE: YEAH,
IT IS VERY NORMAL. THAT'S THE POINT -- ONE OF THE POINTS. A NORMAL PROCEDURE THAT YOU
PUT US IN AND SAID THAT IF YOU PREVAIL, THAT'S THE OBVIOUS INFERENCE WE DRAW FROM PUTTING
US IN WITH THE SOLE ISSUE OF ESTOPPEL, IF YOU PREVAIL BEFORE AN ADMINISTRATIVE LAW JUDGE,
UNDER THE NATURAL SEQUENCE OF EVENTS WHEN YOU TRY A CASE BEFORE AN ADMINISTRATIVE LAW
JUDGE, UNLESS IT'S REVIEWED LATER, UNLESS THE JUDGE IS ESSENTIALLY MAKING CONCLUSIONS
THAT ARE UN-SUPPORTED AND SHE'S JUDGING CREDIBILITY ON THAT ISSUE OF ESTOPPEL.
JUSTICE PATTERSON: YOU WERE SORT OF SAYING YOU LIKE THEY SAID SOMETHING TO YOU,
INDICATING THE ONLY ISSUE IN THIS CASE IS THE ISSUE OF ESTOPPEL. DID THEY EVER REPRESENT
THAT TO YOU? RICHARD M. PESCATORE: YES. IT'S IN THE WRITINGS AND IT'S IN
THE APPENDIX -- JUSTICE PATTERSON: NO. NO. DID THE COMMISSION EVER SAY THAT
IF YOU PREVAIL ON ESTOPPEL YOU HAVE WON THE CASE? RICHARD M. PESCATORE: NO,
THEY DIDN'T SAY -- I WISH THEY WOULD HAVE. JUSTICE PATTERSON: OR ANYTHING
LIKE THAT? RICHARD M. PESCATORE: WELL, THEY SENT A NOTICE AND A LETTER SAYING
-- AND THEY USED IT -- THE SOLE ISSUE OF ESTOPPEL. THEY SAID THAT IN THEIR LETTER AND
IN THE TRIAL -- JUSTICE PATTERSON: I THOUGHT THE ONLY ISSUE GOING TO THE A
O J WAS ESTOPPEL. RICHARD M. PESCATORE: THAT'S RIGHT. THAT'S WHAT THEY
SAID IN WRITING. JUSTICE PATTERSON: THEY DIDN'T SAY THE SOLE ISSUE IN THIS
ENTIRE CASE IS HE IS TOPPLE, DID THEY? RICHARD M. PESCATORE: I MEAN, THAT WAS
WHAT EVERYONE ASSUMED AND TOOK AS THE SITUATION, INCLUDING THE A G TRYING THE CASE.
JUSTICE WAINER APTER: EVEN IF WE AGREED WITH YOU THAT THE SOLE ISSUE IN THE CASE WAS ESTOPPEL,
DOESN'T OUR CASE LAW SAY THAT IN ORDER TO APPLY ESTOPPEL YOU FIRST HAVE TO FIND THAT IT WAS
ONLY ULTRA VIRES IN THE SECONDARY SENSE AS THE CHIEF JUSTICE EXPLAINED AND NOT IN THE
PRIMARY SENSE? SO EVEN IF WE AGREED THAT ENTIRE ISSUE IN THE CASE WAS ESTOPPEL, WOULDN'T
WE STILL BE REQUIRED UNDER OUR CASE LAW TO LOOK INTO CAN WE EVEN APPLY ESTOPPEL AT ALL
HERE AGAINST A PUBLIC AGENCY OR WAS THIS ULTRA VIRES IN THE PRIMARY SENSE SUCH THAT THERE IS
NO SUCH THING AS ESTOPPEL AGAINST A STATE AGENCY IF IT WAS ULTRA VIRES IN THE PRIMARY
SENSE. RICHARD M. PESCATORE: I THINK THE CASE LAW THAT OBVIOUSLY PRE-DATES
THE 2013 AMENDMENT AND SOME GOES TO 54 AND THEN 75 AND THEN THE 80S. THAT'S WHAT IT SAYS.
IT SAYS WE'RE MAKING THIS DISTINCTION. WHICH BY THE WAY WE'RE SEEING FOR THE FIRST TIME
IN THE SUPPLEMENTAL BRIEF TO THE SUPREME COURT HERE BY THE ATTORNEY GENERAL'S OFFICE.
THAT'S THE FIRST TIME WE'RE SEEING THIS ARGUMENT IN A SUPPLEMENTAL BRIEF OF THE SECONDARY
PRIMARY. WE HADN'T SEEN IT UNTIL RECENTLY AND THE CORNERSTONE OF THAT TO TAKE OFF OF
YOUR QUESTION IS, WELL, WE DON'T HAVE JURISDICTION. WE CAN'T MAKE THIS DECISION.
WE CAN'T -- WE'RE FORECLOSED FROM MAKING THE DECISION ABOUT ESTOPPEL TO BEGIN WITH. BUT
YOU DID -- THAT'S THE PUBLIC IMPORTANCE PART OF THIS CASE. THAT'S WHEN -- THAT MAY --
IF THAT'S THE CASE, YOU WENT AHEAD AND WHY AM I HERE? YOU WENT AHEAD AND PUT ME IN THE
ADMINISTRATIVE LAW JUDGE SETTING. I THEN WAITED BEYOND MY THREE YEARS WHEN I CAN RETURN
BACK AS A STATE TROOPER. THAT'S WHEN WE TRIED THE CASE IN NOVEMBER OF 2020. AND I WENT
THROUGH ALL OF THAT BECAUSE YOU EXERCISED YOUR JURISDICTION OVER THE CASE THAT YOU SAY
NOW YOU DON'T HAVE. JUSTICE SOLOMON: TWO QUESTIONS. WELL, MAYBE ONE. WHAT ABOUT
CHAPTER 87 MAKES THE INTERPRETATION OF CHAPTER 78 REASONABLY DEBATABLE? THAT INTERPRETATION
MEANING THAT YOU HAD TO HAVE 20 YEARS OF SERVICE BY THE TIME THAT 78 BECAME EFFECTIVE.
WHAT MAKES IT REASONABLY DEBATABLE. RICHARD M. PESCATORE: I WOULD SAY THE
LANGUAGE I HAD READ SAYS THAT SUCH CREDITS SHALL BE CONSIDERED THE SAME AS CREDITABLE
SERVICE AS A FULL TIME COMMISSIONED TROOPER. SO WE'RE SAYING THAT WHEN YOU
LOOK AT THE PURCHASE SERVICE CREDITS AND YOU ALSO LOOK AT N.J.S.A. 53:5A-SIX LITTLE C,
THAT SAYS YOU CAN'T PURCHASE MORE THAN ONE SERVICE CREDIT IN A YEAR. OKAY? IT SAYS
THAT. YOU CAN'T PURCHASE MORE THAN ONE SERVICE -- JUSTICE SOLOMON: BUT THAT'S
NOT WHAT HAPPENED HERE AND THAT'S NOT WHAT HAPPENS UNDER 78. THEY PURCHASED THEIR
CREDITS FOR THOSE YEARS ALL AT THE SAME TIME. IN OTHER WORDS, THEY ONLY GOT A YEAR'S
CREDIT FOR A YEAR'S SERVICE. BUT THEY PURCHASED THOSE CREDITS FOR THE TIME THEY HAD SERVED
AT ONE TIME. I'M JUST TRYING TO FIGURE OUT, WHAT -- SINCE CHAPTER 78 SAYS YOU NEED TO HAVE
20 YEARS OF SERVICE AS OF JUNE 28TH, 2011, AND YOU'RE ARGUING THAT WHETHER THAT WAS
SATISFIED BECAUSE HIS MILITARY SERVICE PRE-DATES THAT AND -- PRE-DATES THAT AND THAT'S
THE TIME THAT YOU COUNT -- THAT SHOULD BE COUNTED, WHAT ABOUT CHAPTER 87 SAYS THAT?
WHERE IN CHAPTER 87 DOES IT SAY THAT? I THINK JUSTICE WAINER ASKED YOU ABOUT RETROACTIVITY.
WHERE DOES IT SAY THAT AND -- RICHARD M. PESCATORE: IT DOESN'T EXPRESSLY
SAY P AND IT DOES SAY RETRO ACTIVE AS THE JUSTICE INQUIRED OF ME. IT JUST SAYS IT SHALL
BE CONSIDERED THE SAME AS CREDITABLE SERVICE AS A FULL TIME OFFICER OR TROOPER RENDERED
AS A MATTER. SO THE QUESTION THEN BECOMES, WELL, WHEN YOU PURCHASE THAT SERVICE
CREDIT, IS IT WHEN YOU MAKE THE PAYMENT AND THAT'S WHEN IT IS AND THEN YOU WOULDN'T MEET
THE CHAPTER 78 OR YOU GET THAT RETROACTIVE APPROACH -- JUSTICE SOLOMON: YOU
WANT US TO PRESUME RETROACTIVITY. RICHARD M. PESCATORE: MY CLIENT DID.
JUSTICE SOLOMON: YOU'RE MAKING THE ARGUMENT -- RICHARD M. PESCATORE: YES.
JUSTICE SOLOMON: -- THAT WE SHOULD PRESUME RETROACTIVITY FOR THE SERVICE TIME.
RICHARD M. PESCATORE: YES. AND IF YOU DON'T, IT'S REASONABLY DEBATABLE TAKEN
INTO THE SECONDARY TYPE OF STATUTORY SCHEME. SO THE ANSWER IS, YES, I SAY YES TO YOUR
QUESTION, AND THEN I SAY, SECONDARILY IF YOU DON'T, WE'RE HAVING THIS DISCUSSION, WE'RE
HAVING THESE BRIEFS, WE'RE HAVING THESE ARGUMENTS ABOUT IT. IT'S DEBATABLE. JUSTICE
SOLOMON: BUT YOU DON'T DISPUTE THAT THE EFFECTIVE DATE OF CHAPTER 87 IS LATER THAN CHAPTER --
THE EFFECTIVE DATE IS LATER AND THERE'S NOTHING IN THE LANGUAGE OF THE STATUTE THAT SAYS
OR IMPLIES THAT IT'S RETRO ACTIVE. RICHARD M. PESCATORE: WELL, I DON'T KNOW
ABOUT -- IT DOESN'T SAY. AND I HAVE TO BE -- I CAN'T BE DISINGENUOUS. IT DOESN'T SAY
THAT. BUT I BELIEVE THAT TO ANSWER YOUR QUESTION, I SAID, YES, IT SHOULD BE
CONSIDERED TO BE IN EFFECTIVE RENDERED SERVICE, NOT PAYMENT. AND THEN -- JUSTICE
SOLOMON: BASED ON WHAT? RICHARD M. PESCATORE: BASED ON N.J.S.A. 53:5A-SIX
C. WHICH SAYS YOU CAN HAVE ONE SERVICE CREDIT -- YOU CAN ONLY PULTS ONE YEAR OF SERVICE
CREDIT IN ANY YEAR. SO IF YOU'RE PURCHASING IT THAT YEAR, YOU'RE GIVING HIM FIVE YEARS
OF SERVICE CREDIT FOR THAT YEAR. YOU CAN'T DO THAT. THAT'S AT LEAST IN-CONSISTENT WITH
THAT STATUTE I JUST GAVE YOU. AND I ALSO REFER TO JAMES VERSUS P.E. R S WHERE IT SAYS
DEFENDANT HAS TO SHOW A LONGSTANDING ADMINISTRATION OF INTERPRETATION OF RELEVANT
STATUTES. THERE'S NO HISTORY HERE. THERE'S NO LONGSTANDING INTERPRETATION OF 87 AND 78
TO DRAW FROM. AND THAT WAS PART OF THE LINE OF CASES, CHIEF JUSTICE, YOU WERE REFERRING
TO ABOUT SECONDARY AND PRIMARY. THAT WAS ONE OF THE THINGS THAT THEY LOOKED AT AND THEY
ALSO LOOKED AT THE CLARITY OF THE UNDERLYING STATUTE AS WELL. AND IT HAS TO BE IS IT
SUBJECT TO FAIR DEBATE. AND I'M GOING TO SAY -- CHIEF JUSTICE RABNER:
MR. PESCATORE, ON JUNE 28, 2011, DID YOUR CLIENT HAVE 20 OR MORE YEARS OF CREDITABLE SERVICE?
RICHARD M. PESCATORE: NO. CHIEF JUSTICE RABNER: SO THAT LANGUAGE
SEEMS CLEAR LOOKING AT CHAPTER 78, WHAT THE REQUIREMENT THERE IS. RICHARD M.
PESCATORE: AGREED. CHIEF JUSTICE RABNER: FOR IT TO SOMEHOW BECOME DEBATABLE,
YOU HAVE TO POINT US TO SPECIFIC LANGUAGE THAT UNDERMINES THAT. AND I'M STRUGGLING TO
FIND WHERE THAT IS IN CHAPTER 87. RICHARD M. PESCATORE: I'M READING THAT
SEBZ OF CHAPTER 87 THAT SAYS THAT SHALL NOT BE LIABLE FOR ANY COSTS ASSOCIATED WITH THE
FINANCING OF THE PENSION ADJUSTMENT BENEFITS OR HEALTHCARE BENEFITS AND IF SUCH CREDIT
IS ESTABLISHED, MILITARY SERVICE CREDITS, SHALL BE CONSIDERED THE SAME AS CREDITABLE SERVICE,
FULL TIME COMMISSION, TROOPER OF A FULL TIME COMMISSIONED TROOPER. JUSTICE
WAINER APTER: WHAT'S THE CITATION? RICHARD M. PESCATORE: THAT'S CHAPTER 87.
THAT'S IN THE BRIEF AND IT'S ON PAGE SEVEN OF OUR SUBMISSION. I DON'T HAVE THAT EXACTLY
HANDY, THE EXACT CITE. BUT THAT'S RIGHT OUT OF CHAPTER -- 53:5A-ONE IS THE STATUTE.
I DON'T KNOW IF IT'S 78 OR WHATEVER, BUT 53:5A. CHIEF JUSTICE RABNER: SO THE
LEGISLATURE DREW A HARD LINE IN 78. THE LANGUAGE THAT YOU READ TO US, DOES THAT OVERRIDE
THAT IN SOME WAY SNICHLT OUR POSITION IS IT DOES. CHIEF JUSTICE RABNER: HOW?
RICHARD M. PESCATORE: IT DOESN'T SAY ANYTHING OTHER THAN MY CLIENT -- SOMEBODY
WHO PURCHASES THEIR SERVICE CREDITS GETS FREE HEALTHCARE, GETS THE BENEFITS AS THOUGH
-- IF THEY PURCHASE -- CREDITABLE SERVICE AS A FULL TIME TROOPER. IT SAYS THAT IN CHAPTER
87. AND THAT -- IT WAS WHAT MY CLIENT BASED HIS DECISION. RIGHT AFTER IT WAS PASSED
IS WHEN HE PURCHASED HIS SERVICE KRETS. THAT'S WHAT HE BASED HIS DECISION ON ON PURCHASING
THESE SERVICE KRETS. YES. SERVICE KRETS. AND HE RECEIVED HIS BENEFITS FROM THE HEALTHCARE
COMMISSION FOR ALMOST TWO YEARS. UNTIL THE ERROR WAS MADE. AGAIN, I WANT
TO DRIVE HOME ONE POINT THAT DOESN'T NECESSARILY RING TRUE FROM THE PAPERS. AND THAT IS,
WHEN MY CLIENT WAS FACED WITH THE DECISION OF WHAT TO DO NEXT, HE SAID, I'M GOING TO GO
THROUGH THE A L J PROCESS. I'M GOING TO PARTICIPATE AND I AM GOING TO RELY UPON THE
STATE HEALTH BENEFIT FRAMING THE SOLE ISSUE, BECAUSE I BELIEVE I CAN WIN THIS ISSUE, WHICH
HE DID. AND THEY EXERCISED JURISDICTION OVER THAT, WHICH THEY DO TO THIS DAY. THEY STILL
HAVE JURISDICTION OVER THIS MATTER THAT THEY CONTEND THEY DON'T HAVE. BECAUSE --
JUSTICE PATTERSON: THEY BEING THE COMMISSION? RICHARD M. PESCATORE: YES.
HOW SO? JUSTICE PATTERSON, THEY MADE THE DECISION NOT TO HAVE MY CLIENT REIMBURSED. THAT IS A DECISION EXERCISING AUTHORITY AND JURISDICTION. SO ON THE ONE HAND THEY SAY
OF THE UNDERLYING TRIAL WHICH IS PART OF THE EXHIBITS HERE. FROM THE DAG.
JUSTICE PATTERSON: I THOUGHT THEIR POSITION IS THAT THEY DO NOT HAVE THE LEGAL AUTHORITY
TO GRANT THE BENEFITS THAT YOUR CLIENT IS CLAIMING. I DID NOT UNDERSTAND THAT THEY ARE
SAYING WE SHOULD NEVER HAVE EXERCISED JURISDICTION IN THIS CASE. RICHARD
M. PESCATORE: YEAH, THAT'S RIGHT OUT OF THEIR SUPPLEMENTAL BRIEF. THEY SAY THEY DIDN'T
HAVE JURISDICTION TO DO SO AND THEREFORE -- JUSTICE PATTERSON: TO GRANT --
RICHARD M. PESCATORE: RIGHT. JUSTICE PATTERSON: THEY DID NOT
HAVE THE AUTHORITY TO GRANT THE BENEFITS. RICHARD M. PESCATORE: RIGHT. WHICH
TAKES OFF FROM THE QUESTION WHICH IS BASICALLY, WELL, IF WE DON'T HAVE AUTHORITY, BECAUSE
THE STATUTE IS SO CLEAR. IT'S PRIMARY. IT CLEARLY IS A PRIMARY TYPE STATUTE.
JUSTICE PATTERSON: IF THEY DON'T HAVE THE LEGAL AUTHORITY TO GRANT THE BENEFITS, DON'T
THEY STILL HAVE THE LEGAL AUTHORITY TO DENY THE BENEFITS? IN OTHER WORDS, DENY YOUR CLIENT'S
APPLICATION FOR THE BENEFITS. IN OTHER WORDS, IF THE STATUTE SAYS THEY CAN'T GRANT THE
BENEFITS BECAUSE YOUR CLIENT IS NOT ELIGIBLE, WHY WERE THEY OUT OF LINE BY DENYING THEM?
RICHARD M. PESCATORE: WELL, HERE'S THE RUB. I MEAN, YEAH, IF THEY'RE MAKING
THIS ARGUMENT NOW, THAT'S AN ARGUMENT THEY SHOULD HAVE MADE DAY ONE. WHY DID I GO TO
THE ADMINISTRATIVE LAW JUDGE. YOU SHOULD HAVE MADE THAT ARGUMENT FROM DAY ONE. YOU
EXERCISED THE JURISDICTION OVER THIS MATTER YOU CLAIM YOU DON'T HAVE TODAY AND YOU STILL
ARE EXERCISING THAT JURISDICTION TO THIS VERY DAY BY SAYING NO REIMBURSEMENT. YOU MADE
THAT DECISION. PAGE 54 OF THE TRANSCRIPT FROM DAG KELLY. SAYING THAT. WE'RE JUST GOING
TO FORGET THE 20 MONTHS OR WHATEVER. THAT'S EXERCISING AUTHORITY AND JURISDICTION. SO
WE HAVE THIS INCONSISTENCY HERE THAT I CAN'T ABIDE AS A PRACTITIONER. JUSTICE
PATTERSON: IS IT POSSIBLE THEY HAVE THE JURISDICTIONAL AUTHORITY TO DECIDE YOUR
CLIENT'S APPLICATION FOR BENEFITS BUT THEY DON'T HAVE THE LEGAL AUTHORITY POST CHAPTER
78 TO GRANT THE BENEFITS IN THIS CASE ON THE BASIS OF ELIGIBILITY. THOSE ARE TWO DISTINCT
CONCEPTS, ARE THEY NOT? RICHARD M. PESCATORE: I DON'T KNOW THAT THEY ARE.
I THINK THEY'RE TIED TO ONE ANOTHER. I THINK IF YOU HAVE JURISDICTION OVER THE MATTER,
WHICH YOU DO, YOU'RE SAYING YOU DON'T IN YOUR SUPPLEMENTAL BRIEF, BUT YOU DO, BECAUSE
YOU GRANTED THE APPEAL. YOU TOLD ME WHERE TO GO FOR THE APPEAL. YOU TOLD ME WHAT THE
ISSUES WOULD BE. YOU STIPULATED TO FACTS AND YOU TOLD ME NO ARGUING STATUTES. YOU DID
ALL THAT. AND I PLAYED BY THE RULES OF ENGAGEMENT AND I WON AND NOW YOU'RE TELLING
ME, YOU'RE TELLING ME NOW, WE DIDN'T HAVE JURISDICTION AND -- JUSTICE
SOLOMON: LET'S ASSUME FOR A MINUTE THEY HAD JURISDICTION TO HEAR THE CASE. BUT THEY
DIDN'T HAVE THE STATUTORY AUTHORITY TO PROVIDE THE BENEFITS. THE LEGISLATURE SAID YOU
CAN'T DO THIS. SO THEY'RE THE PENSION BOARD. THEY CAN HEAR AND REVIEW AND RESOLVE AND
DECIDE WHETHER TO SEND IT TO THE A L J, WHETHER TO ACCEPT OR NOT ACCEPT THE A L J's REASONING
FOR WHATEVER REASON. BUT THE PROBLEM THAT WE'RE TRYING TO GRAPPLE WITH IS WHEN YOU GET
HERE AND WE'VE GOT TO DECIDE WHETHER IN FACT THEY HAD THE LEGAL AUTHORITY, IN THAT SENSE
OF THE JURISDICTION, THE LEGAL AUTHORITY. BECAUSE THE LEGISLATURE MAYBE SAID THEY
DIDN'T. TO DO WHAT THEY DID AND IF THEY DIDN'T HAVE THE LEGAL AUTHORITY, THEN IT'S ULTRA
VIERZ IN THE PRIMARY SENSE. BUT IF THEY DO HAVE THAT LEGAL AUTHORITY OR ARGUABLY COULD HAVE
THAT LEGAL AUTHORITY OR JUST IMPROPERLY EXERCISED THE LEGAL AUTHORITY THEY HAD, THAT'S
DIFFERENT. THAT'S -- EQUITABLE ESTOPPEL MAY APPLY. SO THAT'S WHAT WE'RE DEALING WITH
NOW. ASSUME THEY HAD JURISDICTION TO DECISION PENSION ISSUES AND HEAR THIS CASE BUT THEY
DON'T HAVE THE LEGAL AUTHORITY TO GRANT YOUR CLIENT BENEFITS. THAT'S THE ARGUMENT THE
PENSION BOARD IS MAKING. THAT'S THE ARGUMENT WE HAVE IN FRONT OF US. YOU'VE GOT TO TELL
US WHY THEY HAVE THE LEGAL AUTHORITY, THE LEGISLATURE IMPARTED TO THEM SOMEHOW THE
LEGAL ARGUMENT TO DO WHAT YOU'RE ASKING THEM TO DO. RICHARD M. PESCATORE:
I UNDERSTAND HOW YOU FRAMED IT. AND I STILL TAKE THE POSITION THAT THEY'RE INEXTRICABLY
TIED TO ONE ANOTHER. BUT MY POSITION IS THAT ONCE YOU -- IF YOU DON'T HAVE THE LEGAL
AUTHORITY BUT YOU HAVE THE JURISDICTION TO PUT ME DOWN THIS PATH OVER HERE AND ENGAGE
IN THIS -- JUSTICE SOLOMON: THE LEGISLATURE SAID THEY CAN'T. THEY CAN'T DO
THAT. WE CAN'T DO WHAT THE LEGISLATURE SAID THEY CAN'T DO. THEY CAN'T DO WHAT THE LEGISLATURE
SAID THEY CAN'T DO. NOW WHAT'S THE ARGUMENT? HOW DO YOU GET IT OUTSIDE OF THAT STATUTORY
PROHIBITION INTO SOMETHING WE CAN CONSIDER? RICHARD M. PESCATORE: WELL, I WOULD
HAVE HAD TO HAVE BACK THEN GO BACK IN TIME AND SAID, WELL, NO -- I CAN'T. I CAN'T GO BACK
IN TIME AND SAY, LOOK, IT'S CHAPTER 87 -- JUSTICE PATTERSON: IS THE HEART
OF YOUR ARGUMENT THAT YOU SHOULD NEVER HAVE BEEN PUT THROUGH THE EXPENSE OF A REFERRAL
OF A CASE TO THE A L J FOR A HEARING? RICHARD M. PESCATORE: THAT IS ONE OF THE
-- THAT'S MY SORT OF PET PEEVE IF YOU WILL HERE, TO GET RIGHT TO THE POINT.
JUSTICE PATTERSON: VERY DESCRIPTIVE TERM. RICHARD M. PESCATORE: IT'S NOT JUST
THAT. LOOK WHAT HAPPENED THOUGH WHEN I WAITED. I WAITED. I HAD THREE YEARS TO GET BACK
IN AS A TROOPER AND I WAITED. I'M SITTING PRETTY. I'VE GOT A GREAT ESTOPPEL ARGUMENT.
I'M GOING TO WIN THIS. AND HE DOES. BUT NOW IT'S PAST THE THREE YEARS. I CAN'T GO BACK
AND BE A STATE TROOPER ANYMORE. JUSTICE SOLOMON: WHAT'S THE REMEDY FOR THAT?
MAYBE THAT'S A SEPARATE ISSUE. RICHARD M. PESCATORE: WHAT'S THE RPD FOR --
WELL, IT'S AN ESTOPPEL REMEDY. MAKE THE PERSON WHOLE. I WOULD NOT HAVE DONE -- IT'S
NOT LET'S FORGIVE THE 20 MONTHS. THAT'S NOT THE ONLY REMEDY. THAT'S EXERCISING JURISDICTION
OVER THE MATTER WHICH THEY SAID THEY DON'T HAVE. JUSTICE PATTERSON: I'M JUST
WONDERING IF YOU'RE BLURRING THE DISTINCTION BETWEEN JURISDICTION TO AWARD OR NOT AWARD
A PARTICULAR OR GRANT OR DENY A PARTICULAR APPLICATION BECAUSE THEY'RE THE AGENCY
CHARGED WITH DOING THAT AND LEGAL AUTHORITY TO GRANT THE PARTICULAR RELIEF WHICH THE
LEGISLATURE HAS IN CHAPTER 78 IN A VERY BLACK LETTER CUT-OFF DATE WAY SUGGESTS THAT THEY
DID NOT HAVE AUTHORITY TO DO. THAT'S WHY I'M WONDERING IF YOU'RE MELDING TWO TERMS THAT IS
REALLY DISTINCT. RICHARD M. PESCATORE: I'D BE REPEATING MYSELF TO SAY I STILL
THINK THEY'RE TIED TOGETHER. I THINK THAT JURISDICTION INVOLVES YOUR POWER AND
AUTHORITY TO ACT. TO ACT AND TO AWARD OR NOT AWARD. AND AGAIN THEY CERTAINLY HAVE
JURISDICTION TO PUT ME DOWN THAT PATH. JUSTICE PATTERSON: WELL, THEY HAVE
JURISDICTION TO AWARD THE BENEFITS TO AN ELIGIBLE INDIVIDUAL. THEY CLEARLY ARE THE AGENCY
CHARGED WITH AWARDING THE BENEFITS TO AN ELIGIBLE INDIVIDUAL. BUT WHEN THEY MAKE A
DETERMINATION THAT SAYS A PARTICULAR INDIVIDUAL IS NOT ELIGIBLE UNDER STATUTORY CRITERIA,
THAT I WOULD RESPECTFULLY SUGGEST IS DISTINCT FROM SAYING WE ARE THE WRONG AGENCY. WE HAVE
NO JURISDICTION OVER THIS APPLICATION. AND I KNOW YOU'RE SAYING THEY'RE IN-EXTRICABLY
INTERTWINED, BUT JURISDICTION IS A VERY DISTINCT CONCEPT IN THE LAW THAT IS DIFFERENT
FROM APPLYING A STATUTE TO SAY THIS PARTICULAR INDIVIDUAL DOESN'T HAVE THE AUTHORITY.
RICHARD M. PESCATORE: MAYBE I'LL ADDRESS IT WITH A QUESTION IN A WAY
RHETORICALLY AND SAY IF HE HAD JURISDICTION, DID THEY HAVE THE LEGAL AUTHORITY BACK WHEN
TO SAY, WELL, WE'VE GOT CHAPTER 87 HERE AND I'VE GOT CHAPTER 78 AND I'M HEARING WHAT YOU'RE
SAYING ABOUT YOU APPLYING WHATEVER, WE'RE GOING TO EXERCISE OUR JURISDICTION AND RULE
AND ACTUALLY MAKE A DECISION THAT WE HAVE LEGAL AUTHORITY AND SAY THAT CHAPTER 87 DOES
IN FACT -- IF I LOOK AT THAT, I LOOK AT THE CREDITABLE SERVICE ISSUE. WE'RE GOING TO GO
AHEAD AND WE'RE GOING TO AWARD YOU THOSE BENEFITS. JUSTICE PATTERSON: ARE
YOU ASKING ME? RICHARD M. PESCATORE: NO, I MEAN, I'M SAYING -- YEAH, THEY COULD
HAVE DONE THAT BUT THEY DIDN'T DO THAT. ALL THEY DID WAS SAY, YOU'RE GOING DOWN THIS
PATH FOR ESTOPPEL AND THAT'S WHAT WE DID. WE HAD NO OTHER CHOICE. WE HAD NO REMEDY OR
CHOICE OTHER THAN THAT. JUSTICE NORIEGA: JUSTICE NORIEGA:
COUNSEL, IN AUGUST OF 2013, WHAT WAS THE LEGAL NORT IN WHICH YOUR CLIENT RELIED ON TO
PURCHASE BACK THE SERVICE CREDITS TO BELIEVE IT WOULD RETROACTIVELY APPLY? WHAT WAS THE
THOUGHT THEN. RICHARD M. PESCATORE: UN-QUESTIONABLY, ESPECIALLY IF YOU LOOK
AT THE TRANSCRIPT WHEN HE DESCRIBES DURING THE TRIAL WITH THE JUDGE ABOUT WHAT WAS GOING
ON WITH THE TROOPERS AND I THINK THAT'S PAGE 11 OF MY SUBMISSION, BUT WHAT WAS GOING ON,
CHAPTER 87 CAME IN, EVERYONE WAS DOING A HAPPY DANCE. NOW WE CAN BY. WE'LL BE RETROACTIVE
BACK BEFORE CHAPTER 78. THAT'S THE BASIS -- JUSTICE NORIEGA: BUT WHERE DID
THAT COME FROM? IS IS THERE SOMETHING THAT TRIGGERED THAT OPINION THAT IT WAS
RETROACTIVE AT THE TIME. RICHARD M. PESCATORE: JUST THE READING OF THE STATUTE
AND THAT THAT WAS -- I HAVE TO BE CAREFUL. THERE WAS ARTICLES, THERE WAS PUBLICATIONS.
THERE WAS -- THAT WAS THE SCUTTLEBUTT, IF YOU WILL, AMONG THE TROOPERS AND AMONG THE
CLOSE KNIT GROUP OF TROOPERS THAT FREE HEALTH BENEFITS IS AVAILABLE TO US. MY CLIENT
WASN'T THE ONLY ONE. THE RECORD DOES REFLECT -- LOOK AT HIS AFFIDAVIT AND HIS TESTIMONY.
ALL THE OTHER TROOPERS THAT DID THE SAME THING. JUSTICE NORIEGA: CHAPTER
78 CONTAINS A SUNSET PROVISION BEGINNING ON JUNE 28, 2011. AND IT'S SUPPOSED TO SET AND
EXPIRE FOUR YEARS LATER. DID THAT FORM ANY PART OF YOUR CLIENT'S POSITION? IS THAT ANY
PART OF YOUR ARGUMENT AS FAR AS HOW THIS COULD POSSIBLY APPLY. RICHARD M.
PESCATORE: YES. ALL OF THAT CAME INTO MY CLIENT'S THINKING. AND THE RECORDS REPLETE
OF HOW HE RESEARCHED THIS IN DETAIL AD NAUSEAM AND HOW HE LOOKED AT THE LAWS AND HOW HE
DISCUSSED WITH OTHER TROOPERS. IN FACT, ONE OF THE TROOPERS THAT'S MENTIONED THERE, THEY
MADE THE SAME MISTAKE WITH HIM THE YEAR BEFORE AND THEY ENDED UP GIVING HIM BENEFITS.
SO HE HAD A SIMILAR MISTAKE THAT WAS MADE AND THEY ENDED UP GIVING HIM THE BENEFITS.
OKAY, THEY MADE A MISTAKE, THEY'RE REINSTATING HIS BENEFITS. ALL OF THAT WENT INTO HIS
THINKING WHICH HE EXPLAINED JUST BY WAY OF BACKGROUND, NOT TO TALK ABOUT THE STATUTES,
BECAUSE WE WERE FORBIDDEN FROM DOING THAT DOWN BELOW, BUT TO TALK ABOUT IT TO JUSTIFY
HIS RELIANCE UPON THE FACT THAT HE WAS JUSTIFIABLY RELYING UPON HIS ABILITY TO
PURCHASE THOSE BENEFITS. JUSTICE PIERRE-LOUIS: WHEN HE RECEIVED THE PURCHASE
QUOTE AND OTHER COMMUNICATIONS FROM THE DECISION OF PENSIONS AND BENEFITS, THOSE QUOTES
AND THOSE LETTERS DID STATE THAT THE PURCHASE OF THOSE CREDITS WOULD BE SUBJECT TO THAT.
ANY APPLICATIONS THAT COME IN AFTER JUNE 28, 2011, ARE SUBJECT TO THE PROVISIONS OF
CHAPTER 78. RICHARD M. PESCATORE: AND THE DAG MADE THAT LOUD AND CLEAR WHEN
HE TRIED THE CASE BELOW. THE JUDGE SAID THAT'S NOT PART OF THIS CASE, ET CETERA. BUT,
YES, IT DOES SAY THAT. BUT IT HAS TO AGAIN BE READ IN CONJUNCTION WITH CHAPTER 87 WHICH
DEALS WITH HEALTH BENEFITS FOR STATE TROOPERS. JUSTICE SOLOMON: CAN I ASK YOU
ONE QUESTION ABOUT THE DATES HERE. HE RE-TIRED IN 2015, RIGHT? RICHARD M.
PESCATORE: RIGHT. JUSTICE SOLOMON: AND HE'S GETTING THE BENEFITS UNTIL 2017
WHEN HE GOT THE LETTER TELLING HIM WHAT THE REIMBURSEMENT RATE WAS FOR THE AMOUNT OF
HEALTHCARE BENEFITS HE HAD RECEIVED BUT SHOULDN'T HAVE RECEIVED. RICHARD M.
PESCATORE: RIGHT. JUSTICE SOLOMON: YOU ARGUED AND YOU MADE A STATEMENT THAT
HE LOST THE OPPORTUNITY TO GO BACK TO THE STATE POLICE AND EARN THAT ADDITIONAL TIME.
HE ONLY HAD THREE YEARS TO DO THAT. RICHARD M. PESCATORE: RIGHT.
JUSTICE SOLOMON: SO HE HAD THREE YEARS TO RETURN. 2017 IS WITHIN THREE YEARS OF THE DATE
OF HIS RETIREMENT. DID HE MAKE ANY ATTEMPTS ORIGIN THE PROCESS TO GO BACK TO THE STATE
POLICE WITHIN THE THREE YEARS TO EARN THAT TIME TO GET THE HEALTH BENEFITS?
RICHARD M. PESCATORE: NO. BUT THAT'S AN EXCELLENT QUESTION FOR THIS REASON.
JUSTICE SOLOMON: THANK YOU. RICHARD M. PESCATORE: WELL, LOOK AT THE
REASONABLENESS BEHIND WHAT HE DID KNOW. HE KNOWS HE'S GOING TO PREVAIL AND HE'S RIGHT.
HE KNOWS HE'S GOING TO PREVAIL. THIS IS EASY. I'M GOING TO WIN EASY AND SURE ENOUGH
HE DOES. JUSTICE WAINER APTER: JUST TO CLARIFY, EVEN HAD HE GONE BACK, IT
WOULD HAVE NEVER ALLOWED HIM TO GET THE FREE HEALTH BENEFITS. THE MORE TIME YOU PUT
IN, THE MORE MONEY YOU GET, THE HIGHER YOUR SALARY IS. BUT THE HEALTH BENEFITS ISSUE WAS
DECIDED IN 2011. GOING BACK IN 2017 WOULD NOT HAVE DONE ANYTHING RE-LATED TO FREE HEALTH
BENEFITS, CORRECT? RICHARD M. PESCATORE: YES. AND THE HEALTH BENEFITS
COMMISSION, DAG, POINTED OUT HE COULD HAVE GOT MORE BENEFITS LATER. JUSTICE
SOLOMON: IS THERE A PERIOD OF SERVICE AFTER WHICH HE DOES GET HEALTH BENEFITS? IF HE
HAD HIS 25 YEARS -- IS THERE A CUT-OFF POINT IN WHICH HE WOULD RECEIVE HEALTH BENEFITS.
JUSTICE WAINER APTER: FOR FREE. RICHARD M. PESCATORE: I BELIEVE
SO. I'M NOT EXACTLY SURE ON THAT POINT BECAUSE IT NEVER CAME UP BELOW. JUSTICE
WAINER APTER: I THOUGHT THE RECORD MADE IT CLEAR IT WAS NO. HE COULD HAVE GONE BACK AND
WORKED ALL THE WAY TO MANDATORY RETIREMENT AND HE WOULD NOT HAVE GOTTEN -- RICHARD
M. PESCATORE: THERE WERE OTHER BENEFITS AVAILABLE. I THINK AETNA HAD A PLAN.
JUSTICE SOLOMON: I'M JUST CURIOUS. THE STATE -- CHIEF JUSTICE RABNER:
I THINK WE HAVE YOUR POSITION. IS THERE ANYTHING YOU'D LIKE TO ADD BEFORE WE BREAK?
BEFORE WE BREAK, CAN SOMEONE GIVE US THE FULL CITATION TO CHAPTER 53. ANYONE,
THAT MR. PESCATORE SAID WAS ON PAGE SEVEN OF HIS BRIEF? DONNA ARONS: 53:5A
6.1. CHIEF JUSTICE RABNER: AND THAT'S A RATHER LONG CHAPTER THAT I'M STARING
AT NOW. WHICH PARAGRAPH? DONNA ARONS: HE'S REFERRING TO THE ONE, TWO, THIRD
PARAGRAPH I BELIEVE. THAT STARTS NOTWITHSTANDING. CHIEF JUSTICE
RABNER: GOT IT. THANK YOU.