STATE OF NEW JERSEY VS. BENNIE ANDERSON (L-0600-19, MERCER COUNTY AND STATEWIDE)
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0600-19.
Miller, Meyerson & Corbo, attorneys for appellant (Nirmalan Nagulendran and Gerald D. Miller, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Steven K. Cuttonaro, Deputy Attorney General, of counsel and on the brief).
The
NATALI, JR., J.A.D.
Defendant Bennie Anderson appeals from that portion of a Law Division order compelling the forfeiture of his entire pension earned while employed by the City of Jersey City (City) since 1978.1 The court based its forfeiture decision on the fact that defendant pled guilty to a federal information in the United States District Court for the District of New Jersey to interference with commerce by extortion under color of official right, contrary to
POINT I
THE STATE‘S FORFEITURE OF THE DEFENDANT‘S PENSION VIOLATES THE EXCESSIVE FINES CLAUSE OF THE EIGHTH AMENDMENT.
POINT II
THE FORFEITURE OF BENNIE ANDERSON‘S PENSION WAS EXCESSIVE AND SHOULD BE REVERSED ON APPEAL.
I.
Defendant commenced employment with the City in October 1978. He held various positions in the Demolition Division and Engineering Division when, in 1990, he became an inspector in the Tax Assessor‘s office. According to defendant, at the time of his Marсh 2017 retirement, he had held “every position in the office except that of assessor.” When he retired, defendant had worked for the City for nearly four decades amassing a fully vested pension that entitled him to payments of $60,173.67 per year.
At all relevant times, in Jersey City a property‘s tax description included information related to its attendant zoning, including if the property was a two or three-unit dwelling. To amend or alter that description, a property owner would ordinarily need to obtain approval from the Zoning Board for a variance whiсh, if successful, would result in the Tax Assessor‘s office amending the property‘s tax description. As part of his responsibilities in the Tax Assessor‘s office, however, defendant had the power to alter the tax descriptions of City property without requiring a property owner to file a formal application with the City‘s Zoning Board.
In December 2012, a witness cooperating with law enforcement told defendant that he owned property currently zoned as a two-unit dwelling. He requested that defendant change the tax description of the property to rеflect that the home was a three-unit dwelling. Defendant agreed to change the tax description without requiring approval from the Jersey City Zoning Board and accepted a $300 bribe for doing so. Defendant was promptly charged and pled guilty to a single count of
After defendant‘s guilty plea, the City reduced his pension to $47,918.76. The State then filed a verified complaint and order to show cause seeking, аmong other relief, the complete forfeiture of defendant‘s pension and any related retirement benefits. The State alleged, consistent with the federal information to which defendant pled guilty, that at all relevant times defendant was an employee of the Jersey City Tax Assessor‘s Office, a position of public office or employment within the meaning of
The trial court granted the State‘s application to proceed summarily and after hearing oral arguments, issued an oral decision and order granting the State‘s summary judgment application. In its oral decision, the court first determined that because defendant pled guilty to a federal crime involving dishonesty, the equivalent
The trial court also noted that the Legislature amended
The court rejected defendant‘s arguments that
After the court denied defendant‘s stay application, this appeal followed.
II.
Our review of a ruling on summary judgment is de novo and we apply the same legal standard utilized by the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). “Summary judgment must be granted if ‘the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment . . . as a matter of law.‘” Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)). We accord no special deference to a trial judge‘s conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
III.
We note that defendant does not challenge the applicability of
Instead, defendant renews his argument that requiring forfeiture of his pension benefits is an unconstitutional excessive fine under the State and Federal Constitutions. See
To determine whether a forfeiture is excessive under the Eighth Amendment, courts must first determine whether the punishment constitutes a payment or fine within the meaning of the Excessive Fines Clause. See United States v. Bajakajian, 524 U.S. 321, 334 (1998). If the forfeiture constitutes such a fine, courts must then determine whether such a fine was excessive. Id.
The Eighth Amendment was “intended to prevent the government from abusing its power to punish” and the “‘Excessive Fines Clause was intended to limit only thosе fines directly imposed by, and payable to, the government.‘” Austin, 509 U.S. at 607 (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 268 (1989)). “[A]t the time the Constitution was adopted, ‘the word “fine” was understood to mean a payment to a sovereign as punishment for some offense.‘” Bajakajian, 524 U.S. at 327-28 (quoting Browning-Ferris, 492 U.S. at 265). The Excessive Fines Clause, therefore, “limits the government‘s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.‘” Id. at 328 (quoting Austin, 509 U.S. at 609-10).
Consequently, the forfeiture of property only qualifies as a fine for Eighth Amendment purposes if it constitutes punishment for an offense. See Bajakajian, 524 U.S. at 328. In Bajakajian, the Court noted that the civil forfеiture at issue there constituted punishment because it was “imposed at the culmination of a criminal proceeding and requires conviction of an underlying felony, and it cannot be imposed upon an innocent [person], but only upon a person who has himself been convicted of a . . . violation.” Id. The Supreme Court also held that “‘a civil sanction that cannot fairly be said solely to serve a remedial purpose . . . is punishment.‘” Austin, 509 U.S. at 610 (quoting United States v. Halper, 490 U.S. 435, 448 (1989)).
As noted, the Supreme Court explained that “[i]f the amount of the forfeiture is grossly disproportional to the gravity of the defendant‘s offense, it is unconstitutional.” Id. at 337. In analyzing the gravity of the offense, the Bajakajian Court considered four factors: 1) the nature and extent of the crime; 2) whether the violation was related tо other illegal activities; 3) the other penalties that may be imposed for the violation; and 4) the extent of the harm caused. See id. at 337-40.
Several courts in other jurisdictions have considered excessive fine arguments with respect to pension forfeitures. As noted by the trial court, the majority of those courts have held that pension forfeitures are not subject to an excessive fines analysis because receipt of pension funds is in the nature of a contractual arrangement between a public employee and employеr conditioned on honorable services, rather than a property right. See e.g. Hopkins, 150 F.3d at 1162, Hames, 479 F. Supp. 2d at 1288, Scarantino, 68 A.3d at 385, and Kerner, 382 N.E.2d at 246-47.
In Hopkins, a retired state employee was convicted in federal court of accepting a bribe in connection with his public employment. 150 F.3d at 1157-58. At the time of his conviction, Hopkins was credited with thirty-two years of service and received a monthly pension of $4,293.18. Id. at 1157. After his conviction, Hopkins was notified that his pension would be reduced by seventy percent in accordance with Oklahoma‘s pension forfeiture statute. Id. 1157-58. Hopkins estimated that this pension reduction resulted in an estimated loss of $706,452.85 and challenged his pension forfeiture in federal court alleging that the statute violated the Excessive Fines Clause of the Eighth Amendment. Id. at 1158.
The Tenth Circuit first noted that implicit in the interpretation that a fine was “payment to a sovereign as punishment for some offense,” id. at 1162, was the notion that “it applies only when the payment to the government involves turning over ‘property’ of some kind that once belonged to the defendant.” Ibid. (quoting Austin, 509 U.S. at 604). The court agreed with the District Court‘s reasoning that “under Oklahoma law, Hopkins had no ‘property’ right in his pension bеnefits — even though he had already begun to receive the pension benefits — because Hopkins’ right to his pension always was contingent on maintaining honorable service during his tenure in office.” Id. at 1162. The Tenth Circuit concluded that when Hopkins accepted a bribe, he “breached his duty of honorable service” and thus
Defendant principally relies upon the Supreme Judicial Court of Massachusetts‘s decision in Pub. Emp. Ret. Admin. Comm‘n v. Bettencourt, 47 N.E.3d 667 (Mass. 2016), which reached a contrary result to the Hopkins, Hames, and Scarantino courts. In that case, Edward Bettencourt, a police officer with over twenty-seven years of public service, was convicted of accessing without authorization the civil service examination scorеs of twenty-one other police officers. Id. at 671, 679. The court noted that “the essence of his crime, in substance, was one of ‘snooping.‘” Id. at 679. His subsequent application for retirement benefits was denied because his criminal convictions related to his public position and fell within the state‘s pension forfeiture statute. Id. at 671, 678.
In Bettencourt, the court concluded that under the facts before it, a total pension forfeiture constituted an excessive fine under the Eighth Amendment and rejected the view that Bettencourt “had only a future interest in receiving retirement allowаnce payments . . . that was wholly contingent on . . . not being convicted of a crime involving misconduct in office.” Id. at 674. The court explained that Massachusetts courts had “long held the view” that public employees who were members of the retirement system held an interest that originated in contract but in substance amounted to a property right. Id. at 675.
The court reasoned that at the point Bettencourt became a contributing member of the retirement system with deductions taken from his salary, “he acquired a protected interest in the retirement allowanсe provided by the retirement system that amounted to a property interest.” Id. at 676-77. The court disagreed with the reasoning in the Hopkins line of cases and explained:
[w]e are not persuaded by the reasoning in these cases. If an employee has a protected contract right and, derivatively, a property interest in retirement benefits, the fact that the benefits may be subject to forfeiture on account of misconduct does not change the fundamental character of the contract right or property interest. Rather, it simply means that the employee will lose his or her right and interest as a result of the misconduct.
[Id. at 676.]
The court further explained that the Massachusetts forfeiture statute “effects what is in substance an extraction of payments from the employee to the Commonwealth” and concluded that because the pension forfeiture “involve[s] an ‘extraction of payments’ and is punitive, it is a fine within the meaning of the [E]xcessive [F]ines [C]lause of the Eighth Amendment,” and total forfeiture was excessive under the circumstances. Id. at 677, 680-81.
We agree, in part, with the court‘s analysis in Bettencourt and are similarly unpersuaded by the reasoning in Hopkins and those courts which have held that public employees do not have a property right in pension benefits because that right is contingent on the employee maintaining honorable service during his or her tenure in office. Indeed, the New Jersey Supreme
We have also acknowledged that pension benefits are inherently property rights when equitably distributing assets in matrimonial proceedings. For example, in Whitfield v. Whitfield, 222 N.J. Super. 36, 45 (App. Div. 1987), we concluded that a spouse‘s pension interеst accrued during a marriage, even if not yet vested, was subject to equitable distribution because “a pension plan [is] a form of deferred compensation for services rendered” and “[a]s a substitute for wages such benefits unquestionably constitute property.” When discussing the non-vested pension at issue, we explained that “such a pension is property in the form of a contract right to deferred compensation subject only to the fulfillment of the condition of the requisite number of years of employment by the employee.” Ibid.
And, in Barr v. Barr, 418 N.J. Super. 18, 28 (App. Div. 2012), we addressed a dependent spouse‘s right to the “increases [in the supporting spouse‘s military pension benefits] resulting from his post-judgment, pre-retirement promotion.” Although we vacated the trial judge‘s determination that the plaintiff had an interest in the “post-dissolution pension increases” and remanded for a plenary hearing, in our decision, we again observed that a pension reflects “‘deferred compensation for services rendered,‘” and “[r]ather than receiving current income, the monies are deferred until retirement.” Id. at 33 (quoting Whitfield, 222 N.J. Super. at 45).
Like the police officer in Bettencourt, defendant here had a protected property interest in his pension benefits, for purposes of an Eighth Amendment analysis, because he had a contractual right to receive those benefits in exchange for his public employment. As the court in Bettencourt cogently observed, the nature of defendant‘s property interest does not change merely because receipt of those benefits is conditioned on defendant‘s rendering of honorable service. Instead, “it simply means that the employee will lose his or her right and interest as a result of the misconduct.” 47 N.E.3d at 676. By withholding payment of defendant‘s pension income, the State effectively extracted payments that were due to defendant (and to which he was already receiving) because of his misconduct. Under such circumstances, we conclude defendant‘s right to a pension was a property right and the forfeiture was a “fine”
And, the pension forfeiture ordered by the trial court was a “punishment” for purposes of an Eighth Amendment analysis. Indeed, neither party argues that pension forfeitures pursuant to
IV.
In light of our decision that the forfeiture of pension benefits is a punitive fine that implicates the Excessive Fines Clause, we next address defendant‘s second point. Defendant argues that the forfeiture of $47,918.76 per year in pension income for the duration of his life because he accepted a $300 bribe is an excessive fine under the Eighth Amendment and warrants reversal. We disagree.3
As discussed, in determining whether a fine violates the Excessive Fines Clause, courts must “compare the forfeiture amount to that offense, and ‘[i]f the amount of the forfeiture is grossly disproportional to the gravity of the defendant‘s offense, it is unconstitutional.‘” Bettencourt, 47 N.E.3d at 678 (citing Bajakajian, 524 U.S. at 337). The Bajakajian Court initially emphasized that “judgments about the appropriate punishment for an offense belong in the first instance to the legislature.” Id. at 336. The Court then considered four factors in weighing the gravity of a defendant‘s underlying offense: 1) the nature and extent of the crime; 2) whether the violation was related to other illegal activities; 3) the other penalties that may be imposed for the violation; and 4) the extent of the harm caused. See id. at 337-40.
Applying that analysis hеre, we first note that while mandatory forfeiture of defendant‘s pension benefits may seem like a harsh penalty given his receipt of a mere $300 bribe, the Legislature deemed such a result to be an appropriate consequence for that precise official misconduct.4 It was
Further,
Moreover,
Turning to the gravity of defendant‘s offense, we acknowledge that he pled guilty to a single count of violating
Further, when defendant took the $300 bribe, he significantly and materially breached the public‘s trust. Indeed, honest, hardworking taxpayers and property owners have the right to expect, require, and demand that public servants perform their jobs honorably. That certainly is true with respect to zoning decisions which necessarily affect the health and safety of the tenants and owners of the affected properties. It is beyond peradventure that those decisions must be based on the diligent and conscientious application of the law to the relevant facts, as appropriate, and not the result of illegal payments, even a bribe of $300, which may appear to be a modest sum, but in actuality is a colossal amount when measured against the damage to the public trust caused by that illegal act.
We acknowledge that the court in Bettencourt deemed the pension forfeiture in that case to be constitutionally excessive. In doing so, it concluded that “no harm to the public fisc was accomplished or threatened,” “there was no improper or illegal gain involved,” “the offenses did not warrant concern about protection of the public,” and Bettencourt received no “personal benefit, profit, or gain from his actions.” Bettencourt, 47 N.E.3d at 680. Here, defendant was not convicted of effectively “snooping” оn his colleagues’ test results. Id. at 679. He took money illegally to perform a function he was being paid to honorably discharge. As noted, our Legislature in enacting
V.
Having considered the Legislature‘s determination that total forfeiture of pension benefits is an appropriate consequence of certain public employee misconduct, and that the punishmеnt here was not grossly disproportional in comparison to the gravity of his offense, we conclude that forfeiture of defendant‘s pension was not excessive under either the Eighth Amendment of the United States Constitution or Article I, Paragraph 12 of the New Jersey Constitution.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION