Employees who contribute a premium from each paycheck to insulate themselves and their families from the loss of a paycheck, have a right to the protection for which they bargained. (Photo: AP)

Baron de Montesquieu once said that for a judge to engage in statutory interpretation “he needs only to open his eyes.” Two recent published Appellate Division opinions suggest otherwise.

The facts in the cases are nearly identical. In McClain v. Board of Review, petitioner was a private school teacher who accepted an offer of employment at another school, to begin within seven days. The day after she quit, the new job offer was rescinded. She could not get her old job back and applied for unemployment benefits, which were denied.

In Blake v. Board of Review, petitioner, a worker at a health care facility, quit her job to accept an offer at a different facility. Two days before her new job was scheduled to start, the offer was rescinded. Blake unsuccessfully tried to get her old job back. She sought unemployment benefits, which were denied.

In each case, the nub of the denial was a statutory disqualification and its exception.

The basic statutory language provides that an individual is disqualified from unemployment benefits: “[f]or the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed…” [N.J.S.A. 43:21-5(a).]

There is an exception to that rule: “This subsection shall not apply to an individual who voluntarily leaves work with one employer to accept from another employer employment which commences not more than seven days after the individual leaves employment with the first employer, if the employment with the second employer has weekly hours or pay not less than the hours or pay of the employment of the first employer, except that if the individual gives notice to the first employer that the individual will leave employment on a specified date and the first employer terminates the individual before that date, the seven-day period will commence from the specified date.” [N.J.S.A. 43:21-5(a) (emphasis added).]

The Board of Review ruled in each case that because the petitioners, though blameless, did not begin work for the new employers within seven (7) days, they were barred from unemployment benefits.

Petitioners appealed and received opposite results from two different panels of the Appellate Division in opinions published a month apart.

The McClainpanel held that the plain language of the statute does not expressly require that a claimant “actually” commence work within the seven-day period, but only contemplates the “acceptance” of a job intended to begin within that window.

The Blake panel thought otherwise. It ruled that the statutory language is clear and unequivocal in its requirement that the claimant actually begin work at the new job in order to trigger the exception.

Each panel looked to legislative history and to the intent underlying the unemployment compensation law to bolster its view of the plain meaning of the statutory language.

One of the earliest disillusionments of those who study law is that there exists an objective reality known as “the law.” We were taught that the lawyer’s task is simply to find “the law” as one would find “it” on a successful treasure hunt. The smartest quickly grasp that what the “law” is is overwhelmingly a judicial conclusion that one side’s illusion of its meaning yields a more just result than the illusion proffered by the other side.

During those early days in law school, we learned what tools lawyers use in aid of finding “the law” when the law is “plainly written” in a statute or an administrative code. From the time of those first called upon to interpret plainly written biblical imperatives, to interpretations demanded of present-day judges, there has been an ongoing philosophical debate over whether there is such a thing as “plain language” or, whether “legislative intent” can, indeed, be divined with reliability.

We point out the cases which are the subject of this editorial only as a gentle reminder that declaring the meaning of statutory language is not always as simple a task as some believe it to be.

We endorse the holding in McClain because that panel’s interpretation of the elusive “law” is tenable and because it yields a result more just than Blake.

Employees who often live from paycheck to paycheck, and who contribute a premium from each paycheck to insulate themselves and their families from the loss of a paycheck, have a right to the protection for which they bargained well within a statutory scheme designed to protect them.