FISHER, KRYSTAL AND DAVID VS. CITY OF MILLVILLE (TAX COURT OF NEW JERSEY)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3351-15T3
FISHER, KRYSTAL and DAVID,
Plaintiffs-Appellants, APPROVED FOR PUBLICATION
v. JULY 7, 2017
CITY OF MILLVILLE, APPELLATE DIVISION
Defendant-Respondent.
_______________________________
Argued May 10, 2017 - Decided July 7, 2017
Before Judges Lihotz, Hoffman and Whipple.
On appeal from the Tax Court of New Jersey,
Docket Nos. 14080-2014 and 7736-2015, whose
opinion is reported at 29 N.J. Tax 91 (Tax
2016).
Todd W. Heck argued the cause for appellants
(Testa Heck Scrocca & Testa, P.A.,
attorneys; Mr. Heck, on the briefs).
Brock D. Russell argued the cause for
respondent.
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
Plaintiff Krystal Fisher appeals from a Tax Court order
denying a personal residence real estate tax exemption, granted
by the Legislature to certain disabled veterans.1 In a written
opinion, Tax Court Judge Mark Cimino reviewed the statute and
concluded defendant, the City of Millville, correctly denied
plaintiff's request for exemption. Fisher v. Millville, 29 N.J.
Tax 91, 101-02 (Tax 2016). The judge found, although plaintiff
is completely disabled as a result of her military service, her
injuries did not occur "in direct support" of military
operations in Afghanistan, which was required to claim the
disabled veterans personal residence tax exemption.
On appeal, plaintiff challenges the judge's statutory
interpretation as "incorrect." We are not persuaded and affirm.
The Tax Court's review resulted from cross-motions for
summary judgment. Id. at 92. The parties submitted a joint
statement of stipulated material facts. Ibid.
In October 2002, plaintiff suffered injuries during an Army
training exercise, when she fell from a two-story building at
Fort Leonard Wood, Missouri. Ibid. The injuries did not
preclude her continued military service, and plaintiff was
transferred to Fort Stewart, Georgia, in March 2003, where she
was assigned to a unit scheduled to deploy to Afghanistan. Id.
at 93. However, in light of her injuries, plaintiff was not
1
For ease, we refer solely to Krystal Fisher as plaintiff;
however, we understand and recognize David Fisher, Krystal's
husband, is also a plaintiff and has joined in the appeal.
2 A-3351-15T3
sent overseas. Instead, she remained at Fort Stewart, assigned
to the "Rear Detachment" for her unit in Afghanistan. Ibid. In
this role, plaintiff's duties included
shipping weapons, food, clothing and
processed supplies for the overseas portion
of her unit; keeping inventory logs of
weapons utilized by her unit, including
checking in and out each weapon; retrieving,
processing, and formalizing reports for her
unit overseas as to their military police
activities; assembling protective shield
units for Humvee military vehicles utilized
in overseas combat; performing military
police duties at Fort Stewart, a staging
base; and participating in prisoner of war
camp studies and simulations at Fort Stewart
along with the development of prisoner camp
protocols to be utilized overseas.
Moreover, while stationed at Fort Stewart,
plaintiff continued to train for potential
deployment to Afghanistan as part of the
military police.
[Ibid.]
The Army honorably discharged plaintiff on December 20,
2003. On May 21, 2014, she was declared 100 percent disabled by
the United States Department of Veterans Affairs.2
Plaintiff submitted an application to defendant, claiming a
disabled veteran's property tax exemption, pursuant to N.J.S.A.
54:4-3.30. Ibid. The Millville City Tax Assessor issued a
2
There is no explanation for the eleven-year gap between
plaintiff's discharge, and the disability certification. The
parties agree, and the trial court found, plaintiff's disability
was a result of her military service. Ibid.
3 A-3351-15T3
notice of disallowance on June 26, 2014. Ibid. Plaintiff
appealed to the Cumberland County Board of Taxation, which
concluded the exemption was properly denied. Id. at 94.
Plaintiff appealed to the Tax Court, which conducted a hearing
on the parties' respective motions for summary judgment.
Analyzing the requirements for exemption, the judge concluded
plaintiff's injury was not suffered "in direct support" of
military operations in Afghanistan. Id. at 101. He denied
plaintiff's motion and granted defendant's motion for summary
judgment. Id. at 102.
We review an order granting summary judgment applying the
same standard guiding the trial judge. Conley v. Guerrero, 228
N.J. 339, 346 (2017). "[S]ummary judgment will be granted if
there is no genuine issue of material fact and 'the moving party
is entitled to a judgment or order as a matter of law.'" Ibid.
(quoting R. 4:46-2(c)).
The issue presented here is a legal question requiring
examination of statutory interpretation. "An appellate court
interprets . . . statutes . . . de novo." Meehan v.
Antonellis, 226 N.J. 216, 230 (2016) (quoting Mort. Grader, Inc.
v. Ward & Olivio, L.L.P., 225 N.J. 423, 435 (2016)).
It is well settled that the goal of
statutory interpretation is to ascertain and
effectuate the Legislature's intent. Murray
v. Plainfield Rescue Squad, 210 N.J. 581,
4 A-3351-15T3
592 (2012) (citing DiProspero v. Penn, 183
N.J. 477, 492 (2005)). "In most instances,
the best indicator of that intent is the
plain language chosen by the Legislature."
State v. Gandhi, 201 N.J. 161, 176 (2010)
(citing DiProspero, supra, 183 N.J. at 492).
"[W]hen the language of a statute is clear
on its face, 'the sole function of the
courts is to enforce it according to its
terms.'" Hubbard v. Reed, 168 N.J. 387, 392
(2001) (quoting Sheeran v. Nationwide Mut.
Ins. Co., 80 N.J. 548, 556, 404 A.2d 625
(1979)). In carrying out that function, an
appellate court must read words "with[in]
their context" and give them "their
generally accepted meaning." N.J.S.A. 1:1-
1. A court "may neither rewrite a plainly-
written enactment of the Legislature nor
presume that the Legislature intended
something other than that expressed by way
of the plain language." O'Connell v. State,
171 N.J. 484, 488 (2002).
[Cashin v. Bello, 223 N.J. 328, 335 (2015).]
The Legislature provides a tax exemption for
[t]he dwelling house and the lot . . . of
any citizen and resident of this State . . .
. honorably discharged . . . from active
service, in time of war, in any branch of
the Armed Forces. . . who has been or shall
be declared by the United States Veterans
Administration . . . from other service-
connected disability declared by the United
States Veterans Administration . . . to be a
total or 100% permanent disability . . . .
[N.J.S.A. 54:4-3.30(a).]
The statute's enactment embodies the State Constitution's
authorization to adopt statutes granting veterans tax
exemptions. See N.J. Const. art. VIII, § 1, ¶3 (1947). The
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Legislature has provided for two types of property tax benefits
for veterans; a partial deduction for veterans, honorably
discharged, who served in "active service in time of war,"
N.J.S.A. 54:4-8.11; and a total exemption for veterans,
honorably discharged, who served in "active service in time of
war," and who have been declared disabled as a result of their
service, N.J.S.A. 54:4-3.30(a). The term "active service in
time of war," defined in N.J.S.A. 54:4-8.10(a), is used to
determine eligibility for both the ordinary and disabled
veterans exemptions.
Under N.J.S.A. 54:4-3.30(2), entitlement to an exemption
from real property taxes for a dwelling requires a party to
prove:
(1) "[a] citizen and resident of this
State"; (2) "now or hereafter honorably
discharged or released under honorable
circumstances"; (3) "from active service, in
time of war"; (4) "in any branch of the
Armed Forces of the United States"; (5) "who
has been or shall be declared by the United
States Veterans Administration or its
successor to have a service-connected
disability . . . declared by the United
States Veterans Administration or its
successor to be a total or 100% permanent
disability . . . sustained through enemy
action, or accident, or resulting from
disease contracted while in such active
service . . ."
[Wellington v. Twp. of Hillsborough, 27 N.J.
Tax 37, 48 (Tax 2012) (quoting N.J.S.A.
54:4-3.30(a)).]
6 A-3351-15T3
Here, the only question is whether plaintiff satisfies
element three: whether her disability resulted "from active
service, in time of war." On this issue we remain mindful
"taxation is the rule, and the claimant bears the burden of
proving an exemption." N.J. Carpenters Apprentice Training &
Educ. Fund v. Borough of Kenilworth, 147 N.J. 171, 177 (1996),
cert. denied, 520 U.S. 1241, 117 S. Ct. 1845, 137 L. Ed. 2d 1048
(1997).
In his written opinion, Judge Cimino detailed the historic
changes in the constitutional provisions directed to veterans
tax benefits and the Legislature's adaptation to these
amendments. Fisher, supra, 29 N.J. Tax at 94-97. In doing so,
the judge reviewed amendments to taxation statutes, which align
with the constitutional amendment, allowing relief to veterans
who suffered 100 percent disability "in time of war or other
emergency as, from time to time, defined by the Legislature
. . . ." Id. at 94 (citing N.J. Const. art. VIII, § 1, ¶ 3).
The phrase "[a]ctive service in times of war" as used in
N.J.S.A. 54:4-3.30(a), is a defined term, which means the
"periods of time set forth in [N.J.S.A. 54:4-8.10]." N.J.S.A.
54:4-3.33(a). The Legislature listed sixteen separate military
conflicts, starting with the Civil War up to Operation Iraqi
Freedom, encompassed within the definition of "[a]ctive service
7 A-3351-15T3
in time of war," to discern eligibility of disabled veterans
seeking tax exemptions and deductions.3 N.J.S.A. 54:4-8.10(a).
Many of these periods of war or conflict are defined
temporally — with a beginning and end date during which the
disabling injury must occur, regardless of cause or location.
See Fisher, supra, 29 N.J. Tax at 95 (describing treatment of
service and disability during the Vietnam and Korean conflicts
as an "all-encompassing approach, which only required service
during a conflict."). However, recent military conflicts are
more narrowly circumscribed.
Applicable to plaintiff's time of service is the following:
Operation "Enduring Freedom", on or after
September 11, 2001, who served in a theater
of operation and in direct support of that
operation for a period, continuously or in
the aggregate, of at least 14 days in such
active service commencing on or before the
date the President of the United States or
the United States Secretary of Defense
designates as the termination date of that
operation; provided, that any person
receiving an actual service-incurred injury
or disability while engaged in such service
3
Specifically, the statute lists these conflicts: the Civil
War, the Spanish American War, World War I, World War II, the
Korean conflict, the Lebanon crisis, the Vietnam conflict, the
Lebanon peacekeeping mission, the Grenada peacekeeping mission,
the Panama peacekeeping mission, Operation "Desert Shield/Desert
Storm," Operation "Northern Watch" and Operation "Southern
Watch," Operations "Joint Endeavor" and "Joint Guard" in the
Republic of Bosnia and Herzegovina, Operation "Restore Hope" in
Somalia, Operation "Enduring Freedom," and Operation "Iraqi
Freedom."
8 A-3351-15T3
shall be classed as a veteran whether or not
that person has completed the 14 days'
service as herein provided[.]
[N.J.S.A. 54:4-8.10(a).]
This definition of "[a]ctive service in times of war"
requires (1) service after September 11, 2001; (2) service in "a
theater of operation and in direct support of that operation";
and (3) a "service-incurred injury or disability while engaged
in such service." Ibid. (emphasis added). The statute, by its
clear terms, requires service in the specified geographic area,
an issue we discuss below, as well as a proof the disability
results from "such service" in the geographic area.4
Plaintiff first refutes the judge's conclusion the
statutory definition is more constrictive and maintains the
series of amendments adding various conflicts over time was
intended to expand to availability of relief for military
missions and engagements, not just declared wars. Further, she
urges the Legislature "abandoned" the requirement the military
service occur "in expressly-defined geographic locales." While
it is true the amendments expanded benefits to veterans disabled
4
Because we conclude plaintiff's service in Georgia is
incompatible with the statute's requirements for service "in a
theater of operation and in direct support of that operation,"
we take no position on what proofs would establish the causal
linkage between a plaintiff's "service incurred injury or
disability" and "such service."
9 A-3351-15T3
in designated military conflicts, keeping step with the
Constitution's amendment to authorize Legislation covering
events "in time of war or other emergency," N.J. Const. art.
VIII, § 1, ¶ 3, we reject the suggestion benefits were intended
to be extended without regard to geographic limitations.
N.J.S.A. 54:4-8.10(a) circumscribes the definition of "active
service in time of war," and thus limits eligibility to those
injured "in a theater of operation and in direct support of that
operation." Inclusion of this geographic requirement was
purposeful.5
As noted by the Tax Court in Wellington:
It is too plain to require extended
discussion that members of the military who
are physically present on the battlefield
during a military conflict serve in the
5
The language used is "a theater of operation" versus "the
theater of operation," which the Tax Court has concluded does
not necessarily require presence on the battlefield. See
Galloway Twp. v. Duncan, 29 N.J. Tax 520, 527-28 (Tax 2016)
(extending benefits to doctor disabled during service while
treating soldiers wounded in combat, who were flown to Andrews
Air Force Base in Maryland).
We also note the Legislature has varied the width and
breadth of the geographic requirements. Whereas the definition
of "Active service in time of war" relating to "Operation
'Restore Hope' in Somalia" required "serv[ice] in Somalia or on
board any ship actively engaged in patrolling the territorial
waters of that nation for a period," the definition for
"Operation Enduring Freedom," required, as we have noted,
service "in a theater of operation and in direct support of that
operation," a more flexible geographic requirement. N.J.S.A.
54:4-8.10(a).
10 A-3351-15T3
theater of operation of that conflict within
the meaning of N.J.S.A. 54:4-8.10. Their
health and life are endangered by exposure
to enemy action, weapons and resistance, as
well as numerous other dangers inherent in
warfare. It is this exposure to risk for
the benefit of national security that
warrants a property tax exemption for
veterans who are 100% permanently disabled
as the result of their military service.
[Wellington, supra, 27 N.J. Tax at 50.]
Plaintiff next asserts her unit was stationed in a combat
zone, and her service was in direct support of that combat unit,
although performed stateside. She relies on prior Tax Court
cases she believes are "more typical" of the "modern
requirement," determining "direct support" can occur far from
the actual battlefield.
"N.J.S.A. 54:4-8.10(a) does not define 'theater of
operation.'" Wellington, supra, 27 N.J. Tax at 50. Nor does
the statute define "direct support."
Citing Wellington, plaintiff urges a "more balanced"
interpretation of the statute than the one provided by the Tax
Court. She contends she was exposed to the experiences of war
and, being disabled as a consequence of such service, as a
matter of policy, should result in entitlement to the claimed
tax relief. See Galloway, supra, 29 N.J. Tax at 532 ("With
modern warfare, it defies reality to claim that one has be on
the battlefield to experience war.").
11 A-3351-15T3
We find these arguments unavailing. We remain mindful
"[t]ax-exemption statutes are strictly construed against those
claiming exemption because of the compelling public policy that
all property should bear its fair share of the burden of
taxation." Kenilworth, supra, 147 N.J. at 177 (quoting
Princeton Univ. Press v. Borough of Princeton, 35 N.J. 209, 214
(1961)). Further, the court in Wellington acknowledged "the
unusual circumstances of th[e] case," which extended the
exemption to the plaintiff, who
although in the United States during his
military service, was directly exposed to
the dangers of the battlefield. Enemy
chemical agents intended to harm members of
the United States military were recovered
from the battlefield in Iraq and transported
to the United States for testing. The
purpose of the testing was to protect
American soldiers and Marines engaged in
military operations in the Arabian
Peninsula, Persian Gulf and elsewhere. As a
result of his exposure to actual, physical
enemy weapons, plaintiff suffered 100%
permanent disabilities.
[Wellington, supra, 27 N.J. Tax at 50.]
The facts here are distinguishable from those presented in
Wellington. We cannot agree plaintiff's injury experienced in a
fall during her Missouri basic training or her role performing
the Rear Detachment services outlined above in Georgia satisfy
the statutory requisites of service "in a theater of operations
12 A-3351-15T3
and in direct support of that operation . . . ." N.J.S.A. 54:4-
8.10(a).
We concur with Judge Cimino's analysis of the Legislature's
intent, concluding the determination turns on the exposure of
the service member to the harms of war, an experience not
visited upon plaintiff. Accordingly, plaintiff's disabling
injuries were not suffered in a theater of operation or in
direct support of a theater of operation, and thus, were not the
result of "active service in time of war," as defined in
N.J.S.A. 54:4-8.10(a).
Finally, plaintiff asserts the statutory scheme amounts to
an equal protection violation, as up until recently, certain
military positions were closed to women. The parties stipulated
plaintiff remained in Georgia because of her injury, not because
of any policy discriminating against female soldiers. R. 2:11-
3(e)(1)(E).
Affirmed.
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