Garcia-Montoya v. Public Employees Retirement Board , 140 N.M. 175 ( 2006 )

SUTIN, Judge

(specially concurring).

{23} I agree that we should affirm the district court, but I cannot agree to the complicated analyses or the rationales by which Judge Aland arrives at his result.

{24} We should read the plain language of the statute in a straightforward manner. The “notwithstanding” clause should be read to say that even if a person meets the age and service requirements of NMSA 1978, § 10-11-26.2 (1994) for normal retirement, the person cannot move into plan 3, but must stay with plan 2, if the person does not meet the limitation in NMSA 1978, § 10-11-26.7 (1994). At this point, the clarity of the statutes leaves a lot to be desired.

{25} Plan 3 benefits presumably are for both normal retirees and early disability retirees. Although it is by no means clear, it is certainly arguable that Section 10-11-26.7, which is a part of plan 3, essentially says that whoever wants the benefit of plan 3, including early disability retirees, must have met the eligibility requirement in that section. Otherwise, the person remains in plan 2.

{26} What is striking is the scenario in Judge Alarid’s opinion of an employee hired in 2005. This shows a problem with PERB’s position. Further, the statute is plainly unclear in regard to the intertwining of early disability retirement and normal retirement insofar as eligibility, age, and service requirements are concerned. As shown by Judge Alarid’s discussions, it is not altogether clear whether the Legislature wanted early disability retirees to have to overcome age and service requirements in order to move into a plan for which they would otherwise be eligible were it not for the disability. Here, Plaintiff presumably would have been eligible for plan 3 had she not been disabled and had worked.

{27} I view this case as one created by a serious enough lack of legislative guidance and clarity to give the benefit of doubt to the retiree. I therefore agree to affirm the order of the district court.