                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-5504-12T1

CASEY PIATT, BRUCE DAVIS,
TAMMY DAVIS, MICHAEL CORTES,
JOHN R. FALZONE, MADELINE McKENZIE,
TERRY BOWEN, FRED SIENA, BRUCE
VANMETER, KEVIN CARTER, MARK
                                        APPROVED FOR PUBLICATION
MEZIS, STEVEN DAVIS, FRED
PIERCE, JR., JONATHAN JESTER,              November 18, 2015
VINCENT WOODRUFF, EDWARD POMPPER,
ROBERT BROBST, CHESTER OGDEN,             APPELLATE DIVISION
BRIAN TRUXTON, DAWN COSSABOON,
ANTHONY MADDEN, JAMES ROSS,
JAMES PITTMAN, JOSE L.
DeLaTORRE, JOHN L. MURRAY,
GREGORY W. WILLIAMS, DENNIS
TURNER, GERALDINE COX, EVA SOOY,
JOSEPH KARKOCHA, LINDA SCYTHES,
ALICE B. POYNTOS, CHARLES BURKHART,
BRIAN HORNER, JAMES SMITH, FARZIN
AFSHARKHAH, JOSEPH RAWS, SAMUEL
CROWE, CHRIS CLINE, RAY DILKS,
FRANK SPENCE, ROBERT W. MUSSO,
RONALD DOWNS, ANNIE STREET, JERE
GRIFFITH, RICARDO S. BASA,
BILLY WHILDON, JOHN CALDWELL,
MICHELLE DEVITO, EDMOND READ,
MICHAEL POLOFF, EDWIN DIAZ,
WAYNE PEARSON, CLYDE KOERNER,
GWENDOLYN STREET, LORENZO L. HARRIS,
BRIAN K. HILL, JAMES H. WILDEN, JR.,
DARLENE HOLT, EDWARD C. LeMATTY, III,
ALFRED PIERCE, RICHARD HAWN, ANGELO
GALARZA, DONNIE TOMLIN, MARVIN L.
JOHNSON, BILL FOWLER, JACK B.
SIMPKINS, DOUG DelCOLLO, RON SLADE,
RICK ROBBINS, WILLIAM WHILDIN, JOE
CAMBURN, DAN HAYES, THOMAS PLUTA,
MARK LATTANZI, MICHAEL SCATES,
DANIEL PIATT, CHRIS LEE, L.
SANFILIPPO, LAWRENCE DUSKI, DENNIS A.
GUNN, RIGOBERTO GONZALEZ, DAVID
PRICE, PAMELA BROWN-DAIRSOW,
PATRICIA WHITE, RANDELL BYERS,
LISA WRIGHT, ALBERT RIVERA, JAMES
HARROLD, GEORGE O. McCONNELL,
LARRY SAUL, GLENN CHAPMAN, ESTTE
KINZEL, ROBERT BRENNER, ISRAEL
REYES, EDWIN M. ZAYAS, EVEANNE M.
STINSON, and FRANK MANTEGNA,

     Plaintiffs-Appellants,

v.

POLICE AND FIREMEN'S RETIREMENT
SYSTEM, NEW JERSEY DEPARTMENT
OF CORRECTIONS, and STATE OF NEW
JERSEY,

     Defendants-Respondents.

_______________________________________

         Argued April 13, 2015 – Decided        November 18, 2015

         Before Judges Sabatino, Guadagno and Leone.

         On appeal from the Superior Court of New
         Jersey, Law Division, Mercer County, Docket
         No. L-44-11.

         Mario A. Iavicoli     argued     the    cause   for
         appellants.

         Jeff S. Ignatowitz, Deputy Attorney General,
         argued the cause for respondents (John J.
         Hoffman, Acting Attorney General, attorney;
         Melissa H. Raksa, Assistant Attorney General,
         of counsel; Mr. Ignatowitz, on the brief).

     The opinion of the court was delivered by

LEONE, J.A.D.




                               2                               A-5504-12T1
       Plaintiffs        are   State     corrections        officers       employed    by

defendants, the New Jersey Department of Corrections and the

State     of    New     Jersey    (collectively          "NJDOC").         NJDOC     hired

plaintiffs as corrections officers after they turned thirty-five

years old.        As a result, plaintiffs were enrolled in the Public

Employees        Retirement       System       (PERS).          Plaintiffs    filed     a

complaint claiming they should be transferred to defendant, the

Police     and        Firemen's    Retirement       System       (PFRS),     which     has

generally       higher     benefits      but     which    also    restricts        initial

enrollment to those not over thirty-five.                         N.J.S.A. 43:16A-3;

N.J.A.C.       17:4-2.5(a).         Judge       Phillip    S.    Carchman     dismissed

plaintiffs' complaint with prejudice.

       Plaintiffs appeal, claiming that the PFRS thirty-five-year

age limitation cannot be applied to State corrections officers.

However,        the    long    history     of     PFRS    makes     clear     that     the

Legislature intends to restrict PFRS membership to a person who

is "not over 35 years" when he or she becomes a "policeman" or

"fireman."       N.J.S.A. 43:16A-3.            The Legislature has expanded the

definition of "policeman" to include a State corrections officer

and,     with    only     brief    exceptions       not     applicable       here,     has

mandated that they meet the age requirement for eligibility set

for all PFRS members.             That requirement serves the Legislature's

goals of using PFRS's heightened benefits to encourage persons




                                            3                                  A-5504-12T1
to become officers while young and relatively fit, and to retire

at    a    relatively        early       age.        Moreover,       the   PFRS    Board,      by

regulation, has properly applied this construction of the PFRS

Act   for      more    than       forty     years.          See     N.J.A.C.    17:4-2.5(a).

Finally,       we    reject       plaintiffs'         constitutional        challenges       for

substantially          the        same    reasons          given     by    Judge    Carchman.

Accordingly, we affirm.

                                                 I.

          In   2003,       plaintiff       Casey          Piatt     and    sixty-two      other

plaintiffs          filed     a     complaint         in     federal       district     court,

challenging          the     application             of     the     age    restriction        to

corrections         officers        under       the       federal    Employee      Retirement

Income Security Act (ERISA), 29 U.S.C.A. §§ 1001-1461, the New

Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,

and contract law.            Akers, et al. v. State of New Jersey, et al.,

Civ. No. 03-3920 (D.N.J.).1                     The court dismissed Piatt's ERISA

claim because ERISA did not apply to governmental pension plans,

and dismissed without prejudice his remaining state-law claims.

Ibid. (Aug. 26, 2005).2


1
  The court dismissed all plaintiffs except for Piatt for failure
to prosecute their claims after their counsel died while the
federal lawsuit was pending. Ibid. (Jun. 27, 2005).
2
  See 29 U.S.C.A. § 1002(32), 1003(b)(1); see also N.J.S.A. 10:5-
2.1 (providing that New Jersey's LAD does not "interfere with
                                                      (continued)


                                                 4                                     A-5504-12T1
      In 2010, Piatt and ninety-seven other plaintiffs filed a

complaint in the Law Division in Camden County.                         Plaintiffs

complained that when they were hired as corrections officers by

NJDOC, they were enrolled in PERS rather than PFRS because they

exceeded the maximum age limit for admittance into PFRS.                         They

claimed the age limit of thirty-five in N.J.S.A. 43:16A-3 and

N.J.A.C. 17:4-2.5(a) did not apply to them and, even if it did,

was    arbitrary,         capricious,            unreasonable,         void,      and

unconstitutional.     They demanded they be transferred into PFRS

retroactive    to   the   first   day       of    their   employment,      with    no

assessment of the additional contributions they would have paid

if they had been in PFRS during that period.

      After   defendants    answered        the   complaint,     the    action    was

transferred to Mercer County.3              Plaintiffs filed a motion for

partial summary judgment.         Defendants filed a cross-motion for

summary judgment.

      After hearing two days of oral argument, Judge Carchman

issued a twenty-five-page oral opinion on May 29, 2013.                        In the


(continued)
the operation of the terms or conditions and administration of
. . . any State or locally administered public retirement
system").
3
  Prior to Judge Carchman's involvement, a Law Division judge
dismissed thirty-seven plaintiffs, finding res judicata based on
their dismissal from the federal lawsuit for failure to
prosecute.



                                        5                                  A-5504-12T1
course    of    his    opinion,   Judge   Carchman    pointed    out   that   the

pension benefits of PFRS are greater than those of PERS in part

because employees must contribute more per paycheck to PFRS than

PERS.      The court found at least two reasons why the public

interest       would   require    corrections    officers   to   be    appointed

before age thirty-five in order to enroll in PFRS:

               First, restricting enrollment in this way
               benefits   the  public  fiscally   as  fewer
               individuals are permitted to enroll, and
               secondly, and perhaps more importantly, this
               restriction benefits public safety as it
               provides an incentive for individuals to
               become corrections officers earlier in their
               career and to be able to retire earlier[,]
               allowing for what has been statistically
               established as a more fit and higher energy
               workforce.

By order dated June 5, 2013, Judge Carchman denied plaintiffs'

motion,    granted      defendants'   motion    for   summary    judgment,    and

dismissed the complaint with prejudice.

                                       II.

    Plaintiffs appeal the grant of summary judgment.                    Summary

judgment must be granted if the court determines "that there is

no genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of

law."     R. 4:46-2(c); accord Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 539-40 (1995).              The summary judgment motions

here addressed the applicability of the age limit in N.J.S.A.




                                          6                             A-5504-12T1
43:16A-3, and the validity of the age limit in N.J.A.C. 17:4-

2.5(a).      "A ruling on summary judgment is reviewed de novo.                      We

thus 'apply the same standard governing the trial court,' and do

not defer to the trial court's . . . interpretation of 'the

meaning of a statute'" or the validity of a regulation.                           Davis

v.     Brickman   Landscaping,       Ltd.,     219    N.J.   395,     405      (2014)

(citations omitted).          We must hew to that standard of review.

                                        III.

       To    properly    address     plaintiffs'      claims,   we    review       the

statutory and regulatory history of the age limit, and of the

inclusion of corrections officers as "policemen" under the PFRS

Act, N.J.S.A. 43:16A-1 to -68.

       The PFRS Act was originally adopted in 1944.                   L. 1944, c.

255.        It established a retirement system "for policemen and

firemen."      N.J.S.A. 43:16A-2.        The PFRS Act originally required

applicants to PFRS to be appointed to their position by age

thirty.      Seire v. Police & Fire Pension Comm'n, 6 N.J. 586, 590

(1951);      Bashwiner   v.    Police   &    Firemen's   Ret.      Sys.,     68    N.J.

Super. 1, 5 (App. Div. 1961).            In 1968, that limit was raised to

not over thirty-five years old.              Simon v. Bd. of Trs., Police &

Firemen's      Ret.   Sys.,    233   N.J.    Super.   186,   190     (App.     Div.),

certif. denied, 177 N.J. 652 (1989).                 Since 1968, the PFRS Act

has provided that "any person becoming a full-time policeman or




                                         7                                   A-5504-12T1
fireman . . . shall become a member of this retirement system as

a condition of his employment; he will be enrolled provided,

that his age at becoming such full-time policeman or fireman is

not over 35 years[.]"           N.J.S.A. 43:16A-3(1).4

       The PFRS Act allows the PFRS Board of Trustees to establish

rules and regulations.             N.J.S.A. 43:16A-13(a)(7).             In 1971, the

PFRS    Board    of     Trustees     adopted     a   regulation,       entitled     "age

requirements,"        providing      that    "[a]pplicants      are     subject    to    a

maximum age requirement which is 35 years."                            N.J.A.C. 17:4-

2.5(a) (1971).          Since 1983, the regulation has provided that all

applicants to PFRS "must be appointed to an eligible title on or

prior    to     their    35th   birthday."           N.J.A.C.     17:4-2.5(a);       see

Sellers v. Bd. of Trs. of the Police & Firemen's Ret. Sys., 399

N.J. Super. 51, 53 (App. Div. 2008) (applying N.J.A.C. 17:4-

2.5(a)).

       The    Legislature       repeatedly       amended    the    definitions          of

"policeman"       and     "fireman"         in   N.J.S.A.    43:16A-1         to    make

additional      titles     covered    by     PFRS.     Kossup     v.    Bd.   of   Trs.,

Police & Fireman's Ret. Sys., 372 N.J. Super. 468, 475 (App.

Div. 2004).       For many years, the definition of "policeman" did

not include State corrections officers.                  See Koschker v. Bd. of

4
  The same limitation appears in N.J.S.A. 43:16A-3(2), which
governs a "county, municipality, or political subdivision
thereof" that adopts PFRS by referendum.



                                             8                                 A-5504-12T1
Trs., Police & Firemen's Ret. Sys., 233 N.J. Super. 209, 211

(App. Div. 1989).      The Legislature passed a supplementary act in

1973 allowing certain State corrections officers to enroll in

PFRS by adding their titles to N.J.S.A. 43:16A-1.                See id. at

212 (citing L. 1973, c. 156, § 1); Allen v. Bd. of Trs., Police

& Firemen's Ret. Sys., 233 N.J. Super. 197, 200 (App. Div. 1989)

(same).    The 1973 supplementary act also added N.J.S.A. 43:16A-

62, which states:

           Eligibility for membership in the Police and
           Firemen's Retirement System of New Jersey
           shall be extended to all active, permanent
           and full-time officer employees of the State
           of New Jersey with police powers and holding
           one of the titles cited in section 1 of
           P.L.1944, c. 255 ([N.J.S.A.] 43:16A-1) who
           are otherwise eligible in accordance with
           the provisions of this act.

Also    under   the    1973   supplementary     act,     State   corrections

officers   "then      enrolled   in   PERS    were     offered   a   one-time

opportunity to transfer their retirement fund membership to PFRS

without cost and without regard to age" if they did so within

ninety days.    Koschker, supra, 233 N.J. Super. at 212 (citing L.

1973, c. 156, § 4 (codified at N.J.S.A. 43:16A-63(a))).

       The 1973 supplementary act "did not, however, abolish the

35 year entry-age limitation; it was merely suspended.                  After

the 90 day 'window of opportunity' elapsed, enrollment in PFRS

was again limited to employees 35 years old or younger."                Ibid.




                                      9                              A-5504-12T1
Indeed, a 1975 amendment to the 1973 supplementary act provided

that:

            Each new officer who begins employment
            following the effective date of this 1975
            amendatory and supplementary act, shall be
            required to enroll in the Police and
            Firemen's Retirement System of New Jersey as
            a condition of employment, provided he is
            otherwise eligible for membership by meeting
            the    appointment,    age,     and    health
            prescriptions required of all members.

            [N.J.S.A. 43:16A-63(b) (emphasis added).]

      A   confused     period    of    changing      laws   and    interpretations

followed    the   application         to   the   States     of    the    federal   Age

Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621-34.

See Sellers, supra, 399 N.J. Super. at 55-57 & n.1; Koschker,

supra, 233 N.J. Super. at 214-15.                 However, first temporarily

and then permanently, ibid., Congress amended the ADEA to allow

States to use age as a criteria for hiring "law enforcement

officer[s]."      29    U.S.C.A.       §   623(j).        This    resulted    in   the

renewed    enforcement     of     the      thirty-five-year        age    limit    for

eligibility for PFRS.       Sellers, supra, 399 N.J. Super. at 56.

      Indeed, in Allen and Koschker, we premised our decisions on

the     applicability     of     the       thirty-five-year        age     limit     to

corrections officers.           In Allen, we noted that, although Allen

was appointed to a PFRS-eligible position as a State corrections

officer, he "was not age-eligible to join PFRS because employees




                                           10                                A-5504-12T1
over 35 were not permitted to join PFRS."                        Allen, supra, 233

N.J. Super. at 202 (citing N.J.S.A. 43:16A-3).5                      In Koschker, we

similarly        noted   that    the     plaintiffs'         positions       as        State

corrections officers were made eligible for PFRS in the 1973

supplementary act because they "were over 35 at the time of the

1973    enactment."       Koschker,      supra,       233   N.J.    Super.     at       212.

Because     the     plaintiffs     failed       to    take       advantage        of     the

opportunity provided by the 1973 supplementary act to transfer

into PFRS regardless of age, we held they were ineligible for

PFRS because "enrollment in PFRS was again limited to employees

35 years old or younger."          Id. at 218-19.

       In 1989, the Legislature "eliminated the prior definition

of policeman [under N.J.S.A. 43:16A-1] which consisted of a list

of     diverse     job   titles,   and      replaced        it     with   'prescribed

fundamental       criteria.'"          Matter    of    Eligibility        of      Certain

Assistant Union County Prosecutors to Transfer to PFRS under

N.J.S.A. 43:16A-1 et seq., 301 N.J. Super. 551, 559 (App. Div.

1997) [hereinafter "Prosecutors"] (quoting Senate State Gov't

Comm., Statement to S. 2602, at 1 (June 23, 1988)).                            The 1989

amendment rewrote N.J.S.A. 43:16A-1 to provide only two eligible

5
  Because Allen was appointed during one of the periods where the
age limit was considered invalid under the ADEA, he was entitled
to relief provided such persons under the former N.J.A.C. 17:1-
12.7.    Allen, supra, 233 N.J. Super. at 208-09; see Simon,
supra, 233 N.J. Super. at 191.



                                          11                                      A-5504-12T1
titles,   "policeman"   and    "fireman."    N.J.S.A.   43:16A-2(a)(2).

The 1989 amendment also made clear that to be a "member" of

PFRS, a person had to be a "policeman or fireman included in the

membership of the retirement system pursuant to this amendatory

and supplementary act."       N.J.S.A. 43:16A-1(3).6

    The 1989 amendment provided a functional definition of a

"policeman" which logically if not explicitly would include a

State corrections officer:

           "Policeman" shall mean a permanent, full-
           time employee of a law enforcement unit as
           defined in section 2 of P.L.1961, c.56
           (C.52:17B-67) or the State, other than an
           officer or trooper of the Division of State
           Police whose position is covered by the
           State   Police   Retirement    System,   whose
           primary duties include the investigation,
           apprehension   or    detention    of   persons
           suspected or convicted of violating the
           criminal laws of the State and who:

                (i) is authorized to carry a firearm
           while engaged in the actual performance of
           his official duties;

                (ii) has police powers;

                (iii)    is    required   to    complete
           successfully    the   training   requirements
           prescribed by P.L.1961, c.56 (C.52:17B-66 et
           seq.) or comparable training requirements as
           determined by the board of trustees; and

6
  The 1989 amendment also required the Board to "review the
positions of all members" to determine if each "position shall
continue to be covered under the retirement system based upon
the definitions of 'policeman' and 'fireman' in this act."
N.J.S.A. 43:16A-1.2(a), (b).



                                    12                         A-5504-12T1
                (iv) is subject to the physical and
           mental fitness requirements applicable to
           the position of municipal police officer
           established by an agency authorized to
           establish these requirements on a Statewide
           basis, or comparable physical and mental
           fitness requirements as determined by the
           board of trustees.

           [N.J.S.A. 43:16A-1(2)(a) (emphasis added).]

       Finally, the 1989 amendment made clear that "[n]othing in

this   amendatory   and   supplementary   act   shall   be   construed   as

authorizing" the "enrollment in the retirement system of any

person who was ineligible for membership" previously.            N.J.S.A.

43:16A-1.2(c).

       The 1989 amendment "was part of a series of amendatory laws

intended to increase the retirement allowance of police officers

and firefighters[,] and restrict and reduce membership in PFRS"

to pay for those increased benefits.            Prosecutors, supra, 301

N.J. Super. at 559.       To meet that goal, the Legislature stressed

the importance of the requirement that persons seeking to enroll

in PFRS be appointed by the age of thirty-five:

           The articulated objective was to encourage
           police    officers   and    firefighters   to
           "retire[] at a younger age, in order to
           protect the public."     It was said in the
           legislative hearings that police officers
           and firefighters were to be given enhanced
           benefits "because the nature of [their]
           duties . . . requir[ed] a level of physical
           attributes [and energy] which [are] found,
           statistically    speaking,    among   younger
           members."     The underlying idea was to



                                   13                             A-5504-12T1
            "facilitate" early retirement and "turnover
            within the system" by "giv[ing] better
            benefits."

            [Id. at 559-60 (quoting Hearing on S. 2602
            Before the Assembly State Gov't Comm., 203rd
            Legis., 2d Sess., at 18 (Feb. 6, 1989)
            (Statement of Douglas Forrester, Director,
            Div.    of   Pensions))    (alterations   in
            original).]

    We     have      found   that    the     1989          amendment's      "acknowledged

purpose [was] to restrict eligibility and to reserve to the

young   and    the     fit   active    roles           in    police    and    firefighter

activities."       Id. at 560.        Indeed, the 1989 amendment, like the

1973 supplementary act, required that a person employed in a

position    subsequently       "covered          by     the    retirement       system     is

required to enroll in the retirement system as a condition of

employment,       provided    the     person          is    otherwise       eligible      for

membership      by     meeting       the     appointment,             age    and        health

requirements      prescribed     for       all    members."            N.J.S.A.     43:16A-

1.2(b) (emphasis added); see N.J.S.A. 43:16A-63(b).

    In 1993, the Legislature passed another supplementary act

providing that "any correction officer . . . employed on the

effective date of this supplementary act in the Department of

Corrections who is enrolled in PERS" was "eligible, regardless

of age," to "transfer membership from PERS to PFRS . . . by

waiving,      within    90    days     of        the       effective     date      of    this

supplementary act, all" PERS benefits.                        N.J.S.A. 43:16A-3.8(a),



                                            14                                      A-5504-12T1
(a)(4), (b).        "If an eligible person does not file a timely

waiver   of    PERS   benefits,      the    person's    pension     status    shall

remain   unchanged     and     the   person's      membership      shall   not    be

transferred to PFRS."        N.J.S.A. 43:16A-3.8(b).

      This 1993 supplementary act was an exception that proves

the rule governing current State corrections officers such as

plaintiffs.     The language and history of the PFRS Act shows that

the   thirty-five-year       age     limit      long   enshrined    in     N.J.S.A.

43:16A-3      and   N.J.A.C.    17:4-2.5(a)        applies   to     all    persons

eligible for PFRS because they fall within N.J.S.A. 43:16A-1's

definitions of "policeman" and "fireman."                 That includes State

corrections officers, as we indicated in Allen and Koschker.

                                       IV.

      Plaintiffs argue that there is no statute that explicitly

requires that State corrections officers, when appointed, must

be no older than thirty-five to be eligible for PFRS.                        To the

contrary, that limitation is set forth in the same operative

provision of the PFRS Act which makes any qualifying person "a

member in this retirement system," namely N.J.S.A. 43:16A-3.

      As set forth above, PFRS pensions are available only to a

"policeman or fireman."         N.J.S.A. 43:16A-3; see N.J.S.A. 43:16A-

2 (creating a retirement system for "policemen and firemen").

Because N.J.S.A. 43:16A-3 only allows a person to enroll in PFRS




                                           15                              A-5504-12T1
"provided, that his age at becoming such full-time policeman or

fireman is not over 35 years," a State corrections officer is

barred by statute from enrolling unless he meets that limit.

    Plaintiffs argue that they are law enforcement employees,

and that it is "[t]he definition of 'policeman' in                                      N.J.S.A.

43:16A-1(2) [which] identifies those law enforcement employees

who are to be admitted to the PFRS."                            N.J.S.A. 43:16A-1(2) does

identify which persons hold a position that is eligible for

admission to PFRS.           Ibid. (providing, after the 1989 amendment,

only two eligible titles: "policeman" and "fireman"); see also

N.J.S.A.   43:16A-62         (requiring        that         a    State       officer    must    be

"holding one of the titles cited in" N.J.S.A. 43:16A-1 to be

eligible   for      PFRS).      However,           it       is   N.J.S.A.         43:16A-3   that

provides that a "policeman or fireman . . . shall become a

member of this retirement system."                          Thus, a State corrections

officer,     like     any     other       "policeman,"              must       meet    the     age

requirement of N.J.S.A. 43:16A-3 to be enrolled in PFRS.

    Moreover,        both     the    1975      and          1989    amendments         expressly

provided that each new officer must be "otherwise eligible for

membership    by     meeting        the   .    .        .    age    .    .    .    requirements

prescribed    for     all     members."             N.J.S.A.            43:16A-1.2(b);         see

N.J.S.A. 43:16A-63(b).              Both the 1993 amendment and the 1973

supplementary act confirmed that the age limit applies to State




                                              16                                        A-5504-12T1
corrections officers by providing one-time exceptions allowing

"any correction officer . . . in the Department of Corrections"

to    transfer    to     PFRS     "regardless        of    age."           N.J.S.A.       43:16A-

3.8(a)(4), (b); see Koschker, supra, 233 N.J. Super. at 212.                                     As

Judge Carchman found, these provisions "indicate a legislative

intent" that the thirty-five-year-old age limit applies "to a

broader     swath      of       PFSR     individuals        than       local      police      and

firemen."

       Plaintiffs        cite      language     in     N.J.S.A.            43:16A-3(1)       that

provides    PFRS       membership        to   any    person          who    is    a   full-time

policeman    or     fireman        "in    a   county       or    municipality          or   fire

district    located         in     a   township,"         without          mentioning       State

officers.     N.J.S.A. 43:16A-3(1).                  However, the Legislature has

not opted to change who is eligible for PFRS by amending the

quoted language from N.J.S.A. 43:16A-3, which has gone unchanged

since 1944.        See Seire, supra, 6 N.J. at 590.                          Rather, as set

forth    above,     the     Legislature        has        chosen      to     change     who      is

eligible    for     PFRS        membership    by     amending         the    definitions         of

"policeman" and "fireman" in N.J.S.A. 43:16A-1.

       The Legislature repeatedly, over many decades, added State

job titles to those definitions, and then in 1989 included any

law enforcement employee of "the State" as a "policeman," and

any    employee     of      a    firefighting        unit       of    "the       State"     as   a




                                              17                                       A-5504-12T1
"fireman."          N.J.S.A.       43:16A-1(2)(a),          (b).        To    read      N.J.S.A.

43:16A-3 to apply only to a "policeman" or "fireman" employed by

a county, municipality, or fire district would improperly render

all of those amendments a nullity.                         State v. Terry, 218 N.J.

224,    237    (2014).        "[I]t     is     well-established          that       a    statute

should not be construed in a manner that renders any portion of

it a nullity."          Smith v. Dir., Div. of Taxation, 108 N.J. 19, 27

(1987).

       We     cannot    ignore      the      Legislature's         inclusion         of       State

employees      in   the      definition       of    "policeman"         and   "fireman"          in

N.J.S.A. 43:16A-1(2), and the Legislature's use of those defined

terms to determine membership in PFRS under N.J.S.A. 43:16A-

3(1).       While it would have been clearer for the Legislature also

to add the words "the State" to the quoted language in N.J.S.A.

43:16A-3 to reflect the addition of State employees through the

defined      terms,     the   absence        of    those    clarifying        words          cannot

thwart      the   Legislature's        obvious       intent        to   include         eligible

State    officers       as    members     in       PFRS,    provided         they    meet       its

criteria.

       Thus, we read N.J.S.A. 43:16A-3(1) to include as members of

PFRS all qualified persons who fall within the definition of

"policeman" and "fireman" in N.J.S.A. 43:16A-1(2), whether they

are     employed       by    the    State,        county,    municipality,              or     fire




                                              18                                        A-5504-12T1
district    in    a   township.          This   reading    prevents       from   being

surplusage the language in N.J.S.A. 43:16A-1(2) including State

officers within those definitions.

       Moreover, our reading does not render redundant the quoted

language in N.J.S.A. 43:16A-3(1), because it differentiates its

two    subsections.         N.J.S.A.     43:16A-3(1)      makes    PFRS    membership

available in "a county or municipality or fire district located

in a township" where a pension for policemen and firemen had

been    established     "prior      to    the   date   [the       PFRS]    act   takes

effect,"    whereas     N.J.S.A.       43:16A-3(2)     makes      PFRS     membership

available in "any county, municipality or political subdivision

thereof"    where     the    PFRS   act     subsequently      becomes       effective

pursuant to a referendum.

       "'When interpreting different statutory provisions, we are

obligated to make every effort to harmonize them, even if they

are in apparent conflict.'"               St. Peter's Univ. Hosp. v. Lacy,

185 N.J. 1, 14 (2005) (quoting In re Gray-Sadler, 164 N.J. 468,

485    (2000)    (finding     one   statute's      instruction       to    provide    a

benefit qualified by a proviso in another statute)).                         We have

"'an affirmative duty to reconcile them, so as to give effect to

both    expressions    of     the   lawmakers'     will.'"         Ibid.    (citation

omitted).




                                           19                                A-5504-12T1
       Here, for more than seventy years, it has been the purpose

of the PFRS Act to restrict membership to a person becoming a

"policeman" or "fireman" when they are youthful, and currently

"not over 35 years."          N.J.S.A. 43:16A-3(1).             The Legislature has

been constant in enforcing that rule, with only brief exceptions

when    it   allowed     short      windows    for       transfer      when      PFRS   was

extended to new classes of employees under the 1973, 1989, and

1993 supplementary acts.

       The obvious reasons for restricting the age of enrollment

were reiterated by the Legislature in its 1989 amendment, which

incorporated         State   corrections        officers        into       the    current

definition      of    "policeman."       The        Legislature's         "acknowledged

purpose [was] to restrict eligibility and to reserve to the

young    and    the    fit   active    roles        in    police     and    firefighter

activities."          Prosecutors,      supra,       301      N.J.    Super.      at    560

(upholding the exclusion of assistant county prosecutors from

PFRS).

       The     Legislature's     purpose       is    achieved        by    reading      the

Legislature's acts and amendments as making eligible for PFRS

only those persons who become State corrections officers when

they are not over thirty-five.                As Judge Carchman observed, the

Legislature      imposed     this    requirement         to   encourage       persons    to

become State corrections officers when they have "'a level of




                                         20                                       A-5504-12T1
physical       attributes       [and      energy]       which       [are]        found,

statistically speaking, among younger members.'"                          Id. at 559

(quoting Hearing on S. 2602 Before the Assembly State Gov't

Comm., 203rd Legis., 2d Sess., at 18 (Feb. 6, 1989) (Statement

of   Douglas     Forrester,     Director,      Div.    of     Pensions)).            Thus

encouraging persons to start their career as State corrections

officers earlier also serves "to 'facilitate' early retirement

and 'turnover within the system.'"                   Id. at 560 (same).               See

N.J.S.A.      43:16A-5    (permitting     PFRS      members   to    retire      at    age

fifty-five      if    they   have   twenty     or   more    years    of    service). 7

Finally, by restricting PFRS benefits to those who become State

corrections officers earlier in life, it restricts eligibility,

thus   both    "'protect[ing]       the   public'"     fiscally     and     "giv[ing]

better benefits" to those persons who begin their service at a

younger age.         Id. at 559-60 (same).

       Plaintiffs      argue   that    municipal      firefighters        and    police

officers cannot be hired if they are "over 35 years of age,"

N.J.S.A. 40A:14-12, -127, and that they have more vigorous jobs

than corrections officers, who can be hired without such an age

restriction.         However, those arguments support refusing to make

all corrections officers eligible for PFRS, and restricting PFRS

7
  Plaintiffs note PFRS members are not required to retire until
they turn sixty-five.     N.J.S.A. 43:16A-5(1).    That does not
alter the legislative purpose to encourage earlier retirement.



                                          21                                    A-5504-12T1
eligibility to those persons who become corrections officers at

a young age, bringing to the position the youthful vitality for

which     PFRS's     higher        benefits        provide       compensation,      and

encouraging the early retirement and turnover that PFRS seeks to

elicit.        Moreover,     the    Legislature       can    chose    to   limit   PFRS

eligibility even if it does not preclude the hiring of older

persons.

       Finally, plaintiffs argue that excluding from PFRS those

persons who become State corrections officers when over thirty-

five    is    contrary     to    the     requirement    that      a   "policeman"    or

"fireman"      become    a      member    of   PFRS   "as    a    condition   of    his

employment."       N.J.S.A. 42:16A-3(1).               However, the Legislature

qualified that phrase in N.J.S.A. 42:16A-3(1) with the proviso

that "his age at becoming such full-time policeman or fireman is

not over 35 years."             Ibid.    The Legislature similarly qualified

the "condition of his employment" phrase in N.J.S.A. 43:16A-

1.2(b) and -63(b) with the proviso that "the person is otherwise

eligible for membership by meeting the . . . age" requirements.

Ibid.        As we stated in Allen, a person who becomes a State

corrections      officer        after    age     thirty-five,     "[a]lthough      job-




                                            22                                A-5504-12T1
eligible, [is] not age eligible" for PFRS.                         Allen, supra, 233

N.J. Super. at 208.8

                                            V.

       "Our construction of the statute is also supported by the

long-standing administrative practice and interpretation of the

Division of Pensions."           Prosecutors, supra, 301 N.J. Super. at

561.    For more than four decades, the PFRS Board's regulation

interpreting these statutes has provided that all applicants for

PFRS membership must be no older than thirty-five.                                N.J.A.C.

17:4-2.5(a).           The      Board's         longstanding        regulation          that

applicants "must be appointed to an eligible title on or prior

to their 35th birthday," ibid., adopts the interpretation which

best fits the statutory history, language, and purpose, as set

forth above.         The Board's interpretation particularly accords

with    the    Legislature's          directions      in     the     1975        and   1989

amendments     that    a     person    in   a     position   covered        by    PFRS     is

eligible      for     PFRS    only     if       the   person       meets     the       "age"

requirements        prescribed    "for      all    members."        N.J.S.A.       43:16A-

1.2(b); N.J.S.A. 43:16A-63(b).




8
  Because we find persons who become State corrections officers
over age thirty-five are statutorily ineligible for membership
in PFRS, we need not address defendants' argument that this
interpretation is also supported by consideration of mandatory
retirement ages.



                                            23                                     A-5504-12T1
       "'An administrative agency's interpretation of a statute it

is     charged     with    enforcing           is     entitled       to    great     weight.'"

Prosecutors, supra, 301 N.J. Super. at 561 (quoting In re Saddle

River, 71 N.J. 14, 24 (1976)); accord In re Freshwater Wetlands

Prot. Act Rules, 180 N.J. 415, 431 (2004).                                "'[W]e must give

great deference to an agency's interpretation and implementation

of     its   rules        enforcing       the         statutes       for     which        it    is

responsible.'"          St. Peter's, supra, 185 N.J. at 13 (quoting In

re   Freshwater         Wetlands    Prot.           Act   Rules,     180    N.J.     478,      489

(2004)).     Such deference has been specifically extended to state

agencies        that     administer        pension           statutes.            See,      e.g.,

Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192

N.J.     189,     196     (2007).          "This          deference       comes     from       the

understanding          that   a     state           agency    brings       experience          and

specialized        knowledge        to     its        task     of     administering            and

regulating        a     legislative        enactment           within       its    field        of

expertise."           In re Election Law Enf't Comm'n Advisory Op. No.

01-2008, 201 N.J. 254, 262 (2010) (citing Kasper v. Bd. of Trs.

of the Teachers' Pension & Annuity Fund, 164 N.J. 564, 580-81

(2000)).

       Our   deference        is    even       greater        because      the     Board       has

followed this interpretation for more than four decades.                                    "Such

continued        interpretation          and    practice        by    the    agency         which




                                                24                                       A-5504-12T1
administers a statute is entitled to great weight."                        Szczepanik

v. State, Dept. of Treasury, Div. of Pensions, Public Emps.'

Ret. Sys., 232 N.J. Super. 491, 504 (App. Div. 1989).                       Moreover,

"the fact that the Legislature has not acted in response to an

agency's interpretation or practice is 'granted great weight as

evidence of its conformity with the legislative intent.'"                          Klumb

v. Bd. of Educ. of Manalapan-Englishtown Reg'l High Sch. Dist.,

199 N.J. 14, 24-25 (2009) (citation omitted).                      Indeed, as Judge

Carchman      pointed    out,    the   regulation's       age      limit    "has   been

impliedly      accepted     by     the      Legislature       in     its    temporary

suspension[s] of the age limit" in 1973, 1989, and 1993.                             We

give     "'great        weight'"       to        "the   Legislature's        apparent

acquiescence" in, and "longstanding acceptance" of, the Board's

interpretation.         Matturri v. Bd. of Trs. of the Judicial Ret.

Sys., 173 N.J. 368, 382 (2002) (citation omitted).

       Plaintiffs       challenge         the      validity     of    the     Board's

regulation.         However, "regulations promulgated by an agency in

furtherance of a statutory scheme it is charged with enforcing

are presumed to be valid."                Election Law Enf't Comm'n, supra,

201    N.J.    at    262.       "'[T]he     agency's     interpretation       of    the

operative law is entitled to prevail, so long as it is not

plainly unreasonable.'"            Prosecutors, supra, 301 N.J. Super. at




                                            25                                A-5504-12T1
561 (quoting Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J.

313, 327 (1984)).

       Plaintiffs claim that N.J.A.C. 17:4-2.5(a)'s thirty-five-

year   limitation        is     invalid      because      it      is    inconsistent        with

N.J.S.A.    43:16A-3.6.             That     section     is    part      of    an    amendment

effective    in    1984       which     added       "county    sheriff"         to   the    now-

deleted list of titles in N.J.S.A. 43:16A-1, and "permit[ted] an

incumbent county sheriff to transfer from PERS to PFRS under

some   circumstances."              Simon,      supra,      233    N.J.       Super.   at    188

(citing    L.   1983,         c.    439).       That     amendment        allowed      such     a

transfer within ninety days by "[a]ny officer eligible to become

a member pursuant to the amendatory provisions of this act."

N.J.S.A.    43:16A-3.7.               One    eligibility          requirement        for    such

transfer     was       that    "[n]o        county     sheriff         shall    qualify      for

membership        in     [PFRS]        pursuant        to      this       amendatory         and

supplementary act if he has reached the age of 37 years on the

date of his application for membership."                       N.J.S.A. 43:16A-3.6.

       We have already found that the 1984 amendment only created

"a 37-year entry-age on transferees from PERS during the 90-day

period allowed by N.J.S.A. 43:16A-3.7," and that the "general

35-year    entry-age          limit    on    membership        for     new     employees"     in

N.J.S.A. 43:16A-3 would govern henceforth.                              Simon, supra, 233

N.J. Super. at 190.                Thus, N.J.S.A. 43:16A-3.6 is just another




                                               26                                      A-5504-12T1
one-time   transfer       provision.        It    provides     no       basis     for

invalidating      the    otherwise-applicable          thirty-five-year         limit

under N.J.S.A. 43:16A-3 and N.J.A.C. 17:4-2.5(a).

      Therefore, as Judge Carchman ruled, "N.J.A.C. 17:4-2.5 must

be recognized as reasonable and entitled to deference."                           As

plaintiffs note, "'administrative regulations are not binding on

the   courts,'"    St.   Peter's,   supra,       185   N.J.   at   15    (citation

omitted), and

           the deference afforded regulations does not
           go so far as to permit an administrative
           agency under the guise of an administrative
           interpretation to give a statute any greater
           effect than is permitted by the statutory
           language.   Nor can agency regulations alter
           the terms of a legislative enactment or
           frustrate   the   policy  embodied   in  the
           statute. If a regulation is plainly at odds
           with the statute, the court must set it
           aside.

           [Lourdes Med. Ctr. of Burlington Cty. v. Bd.
           of   Review,  197   N.J.  339,   376  (2009)
           (citation omitted).]

However, plaintiffs have not carried their "'burden of proving

the rule is at odds with the statute.'"                St. Peter's, supra, 185

N.J. at 13 (citation omitted).          Indeed, N.J.A.C. 17:4-2.5(a) is

"entirely consistent with the statutory scheme," and precludes

plaintiffs' demand for eligibility under the PFRS Act.                      Id. at

17.   It is plaintiffs' argument, not the regulation, that seeks




                                       27                                  A-5504-12T1
to "extend [the PFRS] statute to include persons not intended."

See Serv. Armament Co. v. Hyland, 70 N.J. 550, 563 (1976).

                                        VI.

       Plaintiffs     also      contend         that      the     thirty-five-year

limitation violates the Equal Protection Clause of the United

States and New Jersey Constitutions.                   However, "age is not a

suspect     classification      under     the     Equal       Protection    Clause."

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83, 120 S. Ct. 631,

646, 145 L. Ed. 2d 522, 542 (2000) (citing Gregory v. Ashcroft,

501 U.S. 452, 470, 111 S. Ct. 2395, 2406, 115 L. Ed. 2d 410, 430

(1991));    Boylan   v.   State,    116       N.J.     236,     250   (1989),   cert.

denied, 494 U.S. 1061, 110 S. Ct. 1539, 108 L. Ed. 2d 778

(1990).     "Nor is the right to membership in PFRS rather than in

PERS a fundamental right."              Simon, supra, 233 N.J. Super. at

197.    Thus, "States may discriminate on the basis of age without

offending the Fourteenth Amendment if the age classification in

question is rationally related to a legitimate state interest."

Kimel, supra, 528 U.S. at 83, 120 S. Ct. at 645, 145 L. Ed. 2d

at 542; In re C.V.S. Pharm. Wayne, 116 N.J. 490, 502 (1989).

       As   Judge    Carchman     found,        granting        increased   pension

benefits to persons who become corrections officers when thirty-

five years old or younger has a rational basis.                         See Boylan,

supra, 116 N.J. at 250-51.         We reject plaintiffs' constitutional




                                        28                                  A-5504-12T1
claims     substantially        for       the    reasons     set   forth     in    Judge

Carchman's thorough opinion.

      Plaintiffs argue that turning thirty-five has not prevented

them from being hired or performing their duties.                        Nonetheless,

the   Legislature      could        rationally       have     chosen    to   encourage

younger persons to become State corrections officers with the

incentive of a more generous pension.

      Accordingly, Judge Carchman's grant of summary judgment was

proper,     because     it     is     appropriate       and    constitutional       for

N.J.S.A.     43:16A-3        and    N.J.A.C.        17:4-2.5(a)    to      limit    PFRS

eligibility    to     persons       who    become    State    corrections     officers

when they are not over thirty-five years old.9

      Affirmed.




9
  Therefore, we need not address the merits of plaintiffs' claim
that res judicata did not justify the dismissal of thirty-seven
plaintiffs by the Law Division based on their dismissal from the
federal lawsuit. Even if the dismissal by the Law Division was
inappropriate, summary judgment would also have been granted
against those plaintiffs for the reasons set forth above.



                                            29                                A-5504-12T1
