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

The facts in the cases are nearly identical. In McClainv. Board of Review, petitioner was a private school teacherwho accepted an offer of employment at another school, to beginwithin seven days. The day after she quit, the new job offer wasrescinded. She could not get her old job back and applied forunemployment benefits, which were denied.

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 Two days before her new job was scheduled tostart, the offer was rescinded.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

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

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

There is an exception to that rule: “This subsection shall notapply to an individual who voluntarily leaves work with oneemployer to accept from another employer employment which commencesnot more than seven days after the individual leaves employmentwith the first employer, if the employment with the second employerhas weekly hours or pay not less than the hours or pay of theemployment of the first employer, except that if the individualgives notice to the first employer that the individual will leaveemployment on a specified date and the first employer terminatesthe individual before that date, the seven-day period will commencefrom the specified date.” [N.J.S.A. 43:21-5(a) (emphasisadded).]

The Board of Review ruled in each case that because thepetitioners, though blameless, did not begin work for the newemployers within seven (7) days, they were barred from unemploymentbenefits.

Petitioners appealed and received opposite results from twodifferent panels of the Appellate Division in opinions published amonth apart.

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

The Blake panel thought otherwise. It ruledthat the statutory language is clear and unequivocal in itsrequirement that the claimant actually begin work at the new job inorder to trigger the exception.

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

One of the earliest disillusionments of those who study law isthat there exists an objective reality known as “the law.” We weretaught that the lawyer’s task is simply to find “the law” as onewould find “it” on a successful treasure hunt. The smartest quicklygrasp that what the “law” is is overwhelmingly a judicialconclusion that one side’s illusion of its meaning yields a morejust result than the illusion proffered by the other side.

During those early days in law school, we learned what toolslawyers use in aid of finding “the law” when the law is “plainlywritten” in a statute or an administrative code. From the time ofthose first called upon to interpret plainlywritten biblical imperatives, to interpretations demandedof present-day judges, there has been an ongoing philosophicaldebate over whether there is such a thing as “plain language” or,whether “legislative intent” can, indeed, be divined withreliability.

We point out the cases which are the subject of this editorialonly as a gentle reminder that declaring the meaning of statutorylanguage is not always as simple a task as some believe it tobe.

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

Employees who often live from paycheck to paycheck, and who contribute apremium from each paycheck to insulate themselves and theirfamilies from the loss of a paycheck, have a right to theprotection for which they bargained well within a statutory schemedesigned to protect them.