60 Cal.App.5th 631
Cal. Ct. App.2021Background:
- Jon Wilmot (Contra Costa County firefighter) stopped work Dec 12, 2012 and filed a service retirement application with CCERA on Dec 13, 2012; CCERA approved the application on April 10, 2013 and paid benefits retroactive to Dec 13, 2012.
- PEPRA (effective Jan 1, 2013) added Gov. Code § 7522.72, requiring forfeiture of retirement rights/benefits for conviction of job-related felonies covering the period of the felonious conduct.
- Wilmot was indicted Feb 2013 and pled no contest in Dec 2015 to embezzlement committed between 2000 and Dec 2012; CCERA reduced his pension under § 7522.72, refunding contributions for the forfeited period and cutting the monthly benefit.
- Wilmot sued seeking writ/declaratory relief, arguing § 7522.72 does not apply to him because he retired before PEPRA took effect, and claiming constitutional violations (Contract Clause and ex post facto).
- Trial court denied relief, finding (1) under CERL retirement occurs when the retirement board acts (not on filing), so Wilmot was not retired on Jan 1, 2013; (2) applying § 7522.72 does not violate the Contract Clause or constitute an ex post facto law.
- Court of Appeal affirms on statutory construction (retirement occurs on board approval) and alternatively upholds § 7522.72 against Contract Clause and ex post facto challenges.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of § 7522.72 — was Wilmot "retired" as of Jan 1, 2013? | Wilmot: filing an application + last day of work made him retired on Dec 13, 2012, so PEPRA cannot apply to a retiree. | CCERA/State: CERL makes retirement effective when the retirement board approves the application; Wilmot’s approval occurred April 10, 2013, so he remained a member on Jan 1, 2013. | Court: Retirement occurs upon board action; Wilmot was not retired on Jan 1, 2013 and § 7522.72 applies. |
| Contract Clause (Cal. Const. art. I, § 9) — does § 7522.72 unconstitutionally impair pension contract? | Wilmot: forfeiture reduces vested pension rights and thus impairs contractual obligations and is unreasonable. | State: PEPRA aims to align pension law with the theory of pensions and prevent abuses (job-related crimes); modification is reasonable and bears relation to system integrity; comparable advantages unnecessary. | Court: Following Alameda County, the forfeiture serves permissible internal pension goals and is a reasonable modification; no contract clause violation. |
| Ex post facto — does applying § 7522.72 to pre-enactment conduct increase punishment? | Wilmot: Forfeiture is punitive and increases punishment for crimes committed before PEPRA’s effective date. | State: Legislature intended a civil remedial forfeiture (not penal); the scheme is not punitive in effect (limited, returns employee contributions for forfeited period, administrative process). | Court: § 7522.72 is civil and not so punitive to be deemed criminal; no ex post facto violation. |
Key Cases Cited
- MacIntyre v. Retirement Bd. of S.F., 42 Cal.App.2d 734 (Cal. Ct. App.) (filing an application does not ipso facto retire applicant)
- Wallace v. City of Fresno, 42 Cal.2d 180 (Cal. 1954) (post-retirement felony forfeiture invalid where it lacked relation to pension system’s purpose)
- Alameda County Deputy Sheriff’s Assn. v. Alameda County Emp. Ret. Assn., 9 Cal.5th 1032 (Cal. 2020) (framework for Contract Clause review of pension modifications)
- Kern v. City of Long Beach, 29 Cal.2d 848 (Cal. 1947) (pensions may be modified before they become payable; flexibility required)
- Helvering v. Mitchell, 303 U.S. 391 (U.S. 1938) (civil forfeitures/additions historically civil, not criminal)
- United States v. Ursery, 518 U.S. 267 (U.S. 1996) (forfeiture tied to crime is civil when not punitive in purpose/effect)
- Flemming v. Nestor, 363 U.S. 603 (U.S. 1960) (denial/modification of benefits not necessarily punitive or ex post facto)
- Marin Assn. of Pub. Employees v. Marin County Emp. Ret. Assn., 2 Cal.App.5th 674 (Cal. Ct. App.) (prior PEPRA challenge addressing pension reform issues)
- Hipsher v. L.A. County Emp. Ret. Assn., 58 Cal.App.5th 671 (Cal. Ct. App.) (upholding limited pension forfeiture under § 7522.72)