State v. Bennie Anderson (084365) (Mercer County & Statewide) ( 2021 )

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Bennie Anderson (A-15/16-20) (084365)
Argued March 30, 2021 -- Decided August 11, 2021
LaVECCHIA, J., writing for the Court.
In this appeal, the Court considers whether the forfeiture of defendant Bennie
Anderson’s right to a public pension violates his constitutional right to be free of
excessive fines.
Defendant was employed by Jersey City in the Tax Assessor’s office. His position
gave him the opportunity to alter property tax descriptions without the property owner
filing a formal application with the Zoning Board. In December 2012, defendant
engaged in an illicit transaction where he accepted a $300 bribe in exchange for altering
the tax description of a property from a two-unit dwelling to a three-unit dwelling.
Defendant retired from his position in March 2017 and was granted an early service
retirement pension. In November 2017, defendant pled guilty in federal court to violating
18 U.S.C. § 1951(a), interference with commerce by extortion under color of official
right. Defendant was sentenced to two years of probation and ordered to pay a fine.
Based on defendant’s conviction, the Employees’ Retirement System of Jersey City
reduced his pension.
The State filed an action in state court to compel the total forfeiture of defendant’s
pension pursuant to N.J.S.A. 43:1-3.1. The trial court entered summary judgment for the
State, finding that the forfeiture of defendant’s pension did not implicate the
constitutional prohibitions against excessive fines because the forfeiture of pension
benefits did not constitute a fine. The Appellate Division affirmed the grant of summary
judgment to the State, but on different grounds. 463 N.J. Super. 168, 186 (App. Div.
2020). The Appellate Division concluded that the forfeiture of defendant’s pension was a
fine, but that requiring defendant to forfeit his pension was not excessive. Id. at 172-73.
The Court granted certification. 244 N.J. 288 (2020).
HELD: The forfeiture of defendant’s pension under N.J.S.A. 43:1-3.1 does not
constitute a fine for purposes of an excessive-fine analysis under the Federal or State
Constitutions. Because the forfeiture is not a fine, the Court does not reach the
constitutional analysis for excessiveness.
1
1. The Eighth Amendment of the United States Constitution and Article I, Paragraph 12
of the New Jersey Constitution provide in relevant part that excessive fines shall not be
imposed. Before determining whether a “fine” is “excessive,” a court first determines
whether the government action at issue is a “fine.” United States v. Bajakajian, 524 U.S.
321, 334 (1998). Forfeitures -- payments in kind -- are “fines” if they constitute
punishment for an offense and involve turning over property of some kind that once
belonged to the defendant. In cases in which the status of the forfeited asset as
“property” is disputed, courts resolve the dispute by examining state law. The analysis in
the instant matter therefore begins by asking whether, under New Jersey law, defendant
had a property right in his pension such that the forfeiture of that “right” is a “fine”
within the meaning of the Eighth Amendment or the State Constitution. (pp. 13-17)
2. For many years, the seminal case on pension forfeiture was Uricoli v. Board of
Trustees, Police & Firemen’s Retirement System, in which the Court determined that an
inflexible forfeiture rule was not clearly expressed in the language of the pension statute.
See 91 N.J. 62, 77 (1982). The Court identified factors to consider and balance when
determining whether to impose a pension forfeiture, in the absence of any perceived
legislative intent for mandatory forfeiture. Id. at 77-78. (pp. 17-18)
3. In 2007, the Legislature added N.J.S.A. 43:1-3.1 -- the statute pursuant to which the
State seeks forfeiture of defendant’s pension. N.J.S.A. 43:1-3.1(a) provides that a public
employee “who is convicted of any crime set forth in subsection (b) of this section, or of
a substantially similar offense under the laws of another state or the United States . . .
shall forfeit all of the pension or retirement benefit earned.” (emphasis added). N.J.S.A.
43:1-3.1 was in effect in 2012 when defendant’s offense occurred. Also in effect at that
time was N.J.S.A. 43:1-3(a), which provides that “[t]he receipt of a public pension or
retirement benefit is hereby expressly conditioned upon the rendering of honorable
service by a public officer or employee.” Subsection (b) of N.J.S.A. 43:1-3 empowers
boards of trustees to order full or partial pension forfeiture upon dishonorable service,
and subsection (c) lists factors -- similar to the Uricoli factors -- for determining whether
misconduct breached the honorable service requirement. (pp. 18-21)
4. Section 3 makes honorable service a condition of a right to a pension, and section 3.1
makes forfeiture of any right to a pension the result when honorable service is not
provided due to conviction of an enumerated offense. The plain language of section 3.1
expresses an unambiguous legislative intent to make the commission of offenses
enumerated in subsection (b) the basis for mandatory and absolute pension forfeiture.
The factors for consideration contained in N.J.S.A. 43:1-3(c), which resemble those set
forth in Uricoli, apply to public employee misconduct raising honorable service questions
outside of circumstances involving convictions for which section 3.1 requires mandatory
and absolute forfeiture. As a result of the adoption of section 3.1, no longer can the Court
conclude, as it did in Uricoli, that the Legislature did not, unequivocally and
categorically, condition the receipt of a pension on the rendering of uniformly honorable
2
service. Defendant committed his offense after the 2007 amendment to the pension laws
was enacted and, thus, by the time he committed his offense, the Legislature had
eliminated all doubt as to its intent that there be a certain category of offenses the
commission of which precludes receipt of a publicly funded pension in New Jersey.
Defendant’s federal conviction is an analogue to the state offenses listed and, as per the
statute’s wording, qualifies as the basis for the State’s application. (pp. 22-23)
5. Because forfeiture of a pension is automatic and mandatory upon the commission of
certain offenses under section 3.1, it is clear that defendant did not possess a property
right in his pension protected by the Federal or State Constitutions. The Legislature has
established that the pre-condition of honorable service to the statutory right is not met
when a conviction for an enumerated offense occurs. In such a case, the conditional
quasi-contractual right to receive a public pension has not become the “property” of the
employee, so there is no fine for purposes of the Bajakajian analysis. And as the trial
court noted, New Jersey’s treatment of public pensions as quasi-contractual rights rooted
in statute, and not as property rights, is consistent with the majority of courts to have
addressed this issue and have similarly denied excessive-fine claims on the basis of the
first prong of the analysis. Family law cases that have, in that setting, treated pensions as
property subject to equitable distribution do not and cannot convert a public pension into
a nonforfeitable property right. Because the Court concludes that the forfeiture worked
by operation of N.J.S.A. 43:1-3.1 is not a fine, the Court does not reach a constitutional
analysis for excessiveness. The Court therefore declines to review and vacates the
portion the Appellate Division’s opinion analyzing excessiveness. (pp. 24-26)
AFFIRMED AS MODIFIED.
JUSTICE ALBIN, dissenting, would find that Anderson had a property interest
in his pension and that the complete forfeiture of his pension violates the Eighth
Amendment’s Excessive Fines Clause. Explaining that a contract may create a property
right and that pensions are considered property subject to equitable distribution in family
law jurisprudence, Justice Albin asserts that a pension should not constitute property for
one purpose but not another. Justice Albin stresses that Anderson’s conviction, the
condition subsequent that triggered the forfeiture, did not arise until after his pension had
vested. Justice Albin concludes that the punitive forfeiture of Anderson’s pension --
deferred compensation accumulated over thirty-eight and a half years of public
employment -- is a fine for Eighth Amendment purposes. Justice Albin further submits
that the fine was excessive -- that the forfeiture of defendant’s entire pension valued at
over one million dollars was “grossly disproportional” to defendant’s isolated crime of
accepting a $300 bribe.
JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-
LOUIS join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a dissent.
CHIEF JUSTICE RABNER did not participate.
3
SUPREME COURT OF NEW JERSEY
A-15/16 September Term 2020
084365
State of New Jersey,
Plaintiff-Respondent/Cross-Appellant,
v.
Bennie Anderson,
Defendant-Appellant/Cross-Respondent.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
463 N.J. Super. 168 (App. Div. 2020).
Argued Decided
March 30, 2021 August 11, 2021
Nirmalan Nagulendran argued the cause for
appellant/cross-respondent (Miller, Meyerson & Corbo,
attorneys; Nirmalan Nagulendran and Gerald D. Miller,
on the briefs).
Lauren Bonfiglio, Deputy Attorney General, argued the
cause for respondent/cross-appellant (Andrew J. Bruck,
Acting Attorney General, attorney; Steven K. Cuttonaro,
Deputy Attorney General, of counsel and on the briefs).
Alexander Shalom argued the cause for amici curiae
American Civil Liberties Union of New Jersey and
Association of Criminal Defense Lawyers of New Jersey
(American Civil Liberties Union of New Jersey
Foundation and Whipple Azzarello, attorneys; Alexander
1
Shalom, Jeanne LoCicero, and William J. Munoz, on the
brief).
Anthony F. DellaPelle submitted a brief on behalf of
amicus curiae the Institute for Justice (McKirdy, Riskin,
Olson & DellaPelle and Institute for Justice, attorneys;
Anthony F. DellaPelle, Allan C. Zhang, Wesley Hottot,
of the Washington and Texas bars, admitted pro hac vice,
and Jaba Tsitsuashvili, of the California and District of
Columbia bars, admitted pro hac vice, on the brief).
JUSTICE LaVECCHIA delivered the opinion of the Court.
Defendant Bennie Anderson, a former employee in the tax assessor’s
office in the City of Jersey City (the City or Jersey City), was convicted of a
federal offense touching upon his position of public employment. Based on
that conviction, the State of New Jersey filed an action in state court pursuant
to N.J.S.A. 43:1-3.1 to compel the forfeiture of defendant’s public pension.
This appeal concerns defendant’s claim that forfeiture of his right to a public
pension violates his constitutional right to be free of excessive fines.
The trial court and the Appellate Division brought the appropriate
structure to their analyses of defendant’s excessive-fine claim, addressing first
whether the penalty imposed was a “fine,” and if so, whether the fine was
excessive. The trial court’s analysis ended at the first step: the court found
that no fine was exacted because honorable service is a condition of eligibility
for the pension benefit, and one could not lose that to which one did not have a
2
right to begin with. The Appellate Division disagreed with the trial court’s
analysis of the first inquiry but affirmed the grant of summary judgment to the
State because it concluded that the fine to which defendant was subjected was
not excessive. Accordingly, the Appellate Division upheld the pension
forfeiture.
We granted defendant’s petition for certification, 244 N.J. 288 (2020), in
which defendant contends that the Appellate Division applied an inappropriate
analysis for excessiveness, and the State’s cross-petition, 244 N.J. 288, 288-89
(2020), in which the State argues that defendant’s forfeiture of his public
pension does not constitute a fine.
We now affirm the judgment upholding the forfeiture of defendant’s
pension, but our reasoning differs from that of the Appellate Division. We
conclude, as did the trial court, that defendant was not subjected to a fine.
Accordingly, our conclusion on that first inquiry eliminates the need to assess
whether the forfeiture constitutes an excessive fine. As a result, we need not
review or express an opinion on the test for excessiveness employed by the
Appellate Division.
3
I.
A.
Defendant was employed by Jersey City in the Tax Assessor’s office.
His position gave defendant the opportunity to alter property tax descriptions
without the property owner filing a formal application with the Zoning Board.
That power of alteration included the significant ability to alter the number of
housing units permitted on a parcel of property, which is what led to the
forfeiture issue before us.
During the period from December 9 to December 13, 2012, defendant
and an individual cooperating with federal law enforcement engaged in an
illicit transaction. The record from defendant’s federal conviction was
presented in this forfeiture action. That record reveals that the individual, “a
Jersey City property owner whose property was zoned for a two-unit
dwelling,” sought to establish and exploit a back channel with defendant to
have property rezoned as a three-unit dwelling. The individual contacted
defendant on December 9, and on December 12, defendant agreed to rezone
the property in exchange for a $300 bribe. On December 13, 2012, defendant
told the individual that he had rezoned the property and accepted $300 in cash.
Defendant retired from his position in the first quarter of 2017 having
served in the government of Jersey City for thirty-eight and one-half years.
4
His public position and years of service allowed him to apply for a public
pension provided and administered locally by the City. On March 1 of that
year, he was “granted an early service retirement pension of $60,173.67” per
year.
Later that year, the United States Attorney’s Office for the District of
New Jersey charged defendant with violating 18 U.S.C. § 1951(a), interference
with commerce by extortion under color of official right, 1 a charge that carried
a maximum prison sentence of twenty years and a maximum fine that was “the
greatest of: (1) $250,000; (2) twice the gross amount of any pecuniary gain
that any persons derived from the offense; or (3) twice the gross amount of any
pecuniary loss sustained by any victims of the offense,” plus interest.
Defendant and the federal government entered into a plea agreement on June
30, 2017, whereby defendant pled guilty to one count of violating § 1951(a),
and he stipulated to the above-recited facts. Defendant entered a formal plea
on November 21, 2017, and on March 5, 2018, the United States District Court
for the District of New Jersey sentenced defendant to two years of probation
with five months of home detention and imposed a fine in the amount of
$3,000 and a special assessment of $100.
1
Although the charging document provided by the State in the record is
undated, the State represents that this criminal information was filed on
November 21, 2017, with defendant’s plea form.
5
B.
With respect to defendant’s pension, which he received through the
locally administered pension fund for public employees of Jersey City, the
following facts and procedural history are pertinent.
Between the conclusion of defendant’s federal prosecution and the
institution of the litigation that led to the instant appeal, the Board of Trustees
of the Employees’ Retirement System of Jersey City held a hearing on
defendant’s pension status. It resolved, on account of defendant’s federal
conviction, to reduce his pension to $47,918.76 per year.
The State then took action against defendant based on the prescriptions
in N.J.S.A. 43:1-3.1. On March 26, 2019, the State commenced the instant
action by way of “verified complaint in lieu of prerogative writ seeking
forfeiture of public office and position, permanent disqualification from any
position of public honor, trust, or profit, and forfeiture of pension or retirement
benefits.” The complaint sought total forfeiture of defendant’s pension
pursuant to N.J.S.A. 43:1-3.1. 2
2
According to the State, the federal offense of which defendant was convicted
was substantially similar to the following offenses listed in N.J.S.A. 43:1-3.1:
theft by extortion (N.J.S.A. 2C:20-5), commercia1 bribery (N.J.S.A. 2C:21-
10), bribery in official matters (N.J.S.A. 2C:27-2), acceptance or receipt of
unlawful benefit by public servant for official behavior (N.J.S.A. 2C:27-10),
tampering with public records or information (N.J.S.A. 2C:28-7), and official
6
The next day, the State applied for an order to show cause to dispose of
the matter “as a summary proceeding” and to require defendant to show cause
“why summary judgment should not be entered.” The trial court granted the
application to proceed summarily.
Defendant filed an answer on May 7, 2019, admitting most of the
allegations in the State’s complaint but denying that his federal conviction was
for a crime substantially similar to an enumerated state offense in N.J.S.A.
43:1-3.1. Defendant also protested that “the proposed forfeiture of Bennie
Anderson’s entire pension under these facts would be an excessive fine” within
the meaning of the Eighth Amendment of the United States Constitution and
Article I, Paragraph 12 of the New Jersey Constitution. 3
The Honorable Mary Jacobson, A.J.S.C., heard argument on the matter
and entered judgment for the State. The court focused on the Legislature’s
2007 amendment to the pension laws, L. 2007, c. 49, § 2, codified at N.J.S.A.
43:1-3.1. The court determined that the 2007 amendment eliminated judicial
discretion in certain circumstances by calling for mandatory pension forfeiture
misconduct (N.J.S.A. 2C:30-2). Thus, the State considered N.J.S.A. 43:1-
3.1(a)’s forfeiture requirement applicable to defendant.
3
Defendant also argued that “[t]he State of New Jersey is estopped from
seeking the forfeiture of Bennie Anderson’s entire pension.” That argument is
not part of this appeal.
7
for the commission of identified offenses touching on or involving a public
office, position, or employment, “to preclude individuals who have once
violated the public trust from having a second opportunity to do so,” and to
ensure “there should be no stigma of conviction of a crime of dishonesty
among public employees.” The court reviewed this Court’s earlier decision in
Uricoli v. Board of Trustees, Police & Firemen’s Retirement System, 91 N.J.
62 (1982), which found, under the prior statutory law, that the pension laws
did not mandate forfeiture and set forth factors for courts to use when
exercising their discretion in determining whether to order forfeiture.
However, the trial court found that case law to have been superseded by
changes to the statute. The court reasoned from a review of the 2007
amendment and later case law that “the policy in these forfeiture statutes is a
harsh response, but . . . it was a harsh response to a problem serious enough to
justify its harshness.” The court noted that “the forfeiture statute itself
codifies a long-standing policy against retention of offenders in government
service,” and stated further that “the statute reflects a legislative determination
governing the standards of conduct to be observed by those who serve the
public as a condition to continued employment.”
In applying the forfeiture statute to defendant, the trial court further
agreed with the State that the federal statute Anderson was convicted of
8
violating was similar enough to the state offenses enumerated in N.J.S.A. 43:1-
3.1 to justify entering the order sought by the State. 4
Addressing defendant’s argument that the forfeiture of his pension
violated the Excessive Fines Clause of the Eighth Amendment of the United
States Constitution, the court determined that “pensions are more of a
contractual arrangement between a public employee and the employer,” which
are “conditioned on honorable service,” than they are a property right. Noting
that “there was no property right to the pension benefits when there’s a breach
of the honorable service” condition, the court concluded that, therefore,
“forfeiture of the pension benefits does not constitute a payment to the State”
or fine. The court reasoned that without a property right at stake, the
Excessive Fines Clause was not implicated.
Defendant appealed, and the Appellate Division affirmed the grant of
summary judgment to the State, but on different grounds. State v. Anderson,
463 N.J. Super. 168, 186 (App. Div. 2020). The Appellate Division was
persuaded that the forfeiture of defendant’s pension was a “fine” within the
meaning of the constitutional provisions “because he had a property interest in
the form of a contractual right to receive pension benefits, despite the fact that
4
As readily acknowledged by the State, defendant’s individual contributions
toward his pension are returned upon forfeiture.
9
this right was conditioned on his performance of honorable service. ” Id. at
172. In reaching that decision, the court acknowledged that a majority of other
states take a contract-right approach to pension forfeiture and conclude
otherwise when confronted with an excessive-fine argument. However, the
court was persuaded to adopt its property right analysis and conclude that
forfeiture constituted a fine. Importantly however, the Appellate Division did
not find that requiring defendant to forfeit his pension was “excessive,” for
two reasons. Id. at 172-73. The court explained,
[f]irst, by enacting N.J.S.A. 43:1-3.1, the Legislature
expressed its clear intent that such a remedy was
appropriate for the precise official misconduct
committed by defendant. Second, . . . defendant’s
taking of a bribe in exchange for a favorable and
unjustified change in a property’s tax description is a
profound breach of the public trust such that a total
pension forfeiture is not a disproportionate result.
[Id. at 173.]
II.
Defendant does not raise a categorical challenge to the forfeiture statute
itself. Instead, the parties divide their arguments into parts that address (1)
whether forfeiture constitutes a fine and, if so, (2) whether the forfeiture
applied here is an excessive fine. We granted leave to appear as friends of the
Court to the American Civil Liberties Union of New Jersey (ACLU) and the
Association of Criminal Defense Lawyers of New Jersey (ACDL),
10
participating jointly, and to the Institute for Justice. We consider amici’s
arguments with those of the parties.
A.
On the question whether the pension forfeiture in this appeal constitutes
a fine, the State maintains in its cross-petition that there is a quasi-contractual
right rooted in the statutory benefit of a pension, but that right is conditional
and dependent on honorable service as defined by the statutory pension
scheme. According to the State, receipt of a pension was always conditioned
on honorable service, and N.J.S.A. 43:1-3.1 has merely clarified when the
precondition of honorable service is not satisfied, namely through conviction
for any of the enumerated offenses touching on or involving public positions
such as defendant’s.
The State further maintains that the case law, up to Uricoli, recognized
forfeiture to be absolute. With Uricoli determining that the Legislature had not
clearly expressed such an absolute requirement, the State argues that Uricoli
merely set forth factors for a court to use when forfeiture is discretionary and
subject to equitable considerations, which is no longer the case since
enactment of the prescriptions of N.J.S.A. 43:1-3.1.
Defendant advances the property right analysis that the Appellate
Division found persuasive, reasoning largely by analogy to matrimonial cases
11
addressing the distribution of pension benefits following divorces. The ACLU
and ACDL support defendant’s position that public employees have property
rights in their pensions and that pension forfeitures constitute fines.
B.
Defendant’s petition asserts that the Appellate Division applied an
erroneous standard for excessiveness. He maintains that a court must look at
factors other than just the nature and impact of the offense. Asserting that the
United States Supreme Court “has considered factors other than the offense” in
Eighth Amendment cases, he asks this Court to fashion an analysis that
considers the impact of the fine on the individual in addition to the offense.
Criticizing the Appellate Division’s excessiveness analysis as leaning
too much on legislative intent and not enough on the historical roots and
purposes of the excessive fines prohibition, amici ACLU and ACDL advance
an interpretation that takes into account an individual’s means and ability to
pay a fine, and argue that even if the Federal Constitution’s protection does not
take those circumstances into account, then the State Constitution may.
Amicus curiae the Institute for Justice similarly criticizes the Appellate
Division’s excessiveness analysis. The Institute urges adoption of an
individualized analytical method that focuses on the harm actually caused by
12
the defendant and the harshness of the proposed penalty vis-à-vis the
defendant, in light of his or her ability to pay.
In countering the position taken by defendant and amici, the State urges
that we not reach the issue and, instead, end our analysis by finding that
forfeiture as applied here does not constitute a fine.
III.
Certain standards of review apply in the analysis of this matter. As an
appellate court, we approach the review of the grant of summary judgment “de
novo, applying the same standard as the trial court.” Woytas v. Greenwood
Tree Experts, Inc., 237 N.J. 501, 511 (2019); see also R. 4:46-2(c). We also
“review the interpretation of a statute de novo.” State v. Pinkston, 233 N.J.
495, 507 (2018). In doing so, “our overarching duty is ‘to construe and apply
the statute as enacted.’” Daidone v. Buterick Bulkheading, 191 N.J. 557, 565
(2007) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). When a court
construes a statute “[t]o interpret [its] meaning and scope . . . , we look for the
Legislature’s intent.” State v. McCray, 243 N.J. 196, 208 (2020). As we often
have said, “the statute’s plain language” is “the best indicator of intent.” In re
T.B., 236 N.J. 262, 274 (2019).
Before this Court, defendant advances an as-applied constitutional claim
that an order forfeiting the remaining part of his pension violates federal and
13
state constitutional prohibitions against excessive fines. The Eighth
Amendment of the United States Constitution provides that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” Article I, Paragraph 12 of the New Jersey Constitution
provides in relevant part that “[e]xcessive bail shall not be required, excessive
fines shall not be imposed, and cruel and unusual punishments shall not be
inflicted.” 5
As defendant, the State, the trial court, and Appellate Division all
recognize, courts apply the test promulgated by United States v. Bajakajian,
524 U.S. 321 (1998), to determine whether a forfeiture constitutes an
excessive, and therefore prohibited, fine. See, e.g., United States v. Bikundi,
926 F.3d 761, 794-96 (D.C. Cir. 2019); United States v. Cheeseman, 600 F.3d
270, 282-85 (3d Cir. 2010). The federal Excessive Fines Clause and
Bajakajian’s analysis bind the states by operation of the Due Process Clause of
the Fourteenth Amendment. Timbs v. Indiana, 586 U.S. ___, 139 S. Ct. 682,
5
As noted by Professor Williams, this first sentence of Paragraph 12 of
Article I “was carried over verbatim from Article I, Section 15, of the 1844
Constitution.” Robert J. Williams, The New Jersey State Constitution 76
(2012). The excessive-fine provision has not been the subject of much
Supreme Court review, and has to date not veered from federal precedent in
application. See Davanne Realty v. Edison Township, 408 N.J. Super. 16, 22
(App. Div. 2009) (applying United States Supreme Court precedent), aff’d
o.b., 201 N.J. 280, 281 (2010).
14
686-87 (2019); Davanne Realty, 408 N.J. Super. at 22; see also Comm. to
Recall Robert Menendez from the Office of U.S. Senator v. Wells, 204 N.J. 79,
131 (2010) (“[T]he U.S. Supreme Court is, of course, the ultimate arbiter of
the Federal Constitution.”).
The Bajakajian test entails a two-part inquiry. “By its plain language,
the Excessive Fines Clause of the Eighth Amendment is violated only if the
disputed [forfeiture is] both [a] ‘fine[]’ and ‘excessive.’” Tillman v. Lebanon
Cnty. Corr. Facility, 221 F.3d 410, 420 (3d Cir. 2000); cf. Menendez, 204 N.J.
at 105 (“Our analysis begins with the plain language of the Federal
Constitution.”).
Therefore, before determining whether a “fine” is “excessive,” a court
must first determine whether the government action at issue is a “fine,” such as
to implicate the Eighth Amendment. See Bajakajian, 524 U.S. at 334(“Because the forfeiture of respondent’s currency constitutes . . . a ‘fine’
within the meaning of the Excessive Fines Clause, we now turn to the question
whether it is ‘excessive.’”).
“[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 (quoting Browning-Ferris Indus. of Vt.,
Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265 (1989)). “The Excessive Fines
15
Clause thus ‘limits the government’s power to extract payments, whether in
cash or in kind, “as punishment for some offense.”’” Id. at 328 (quoting
Austin v. United States, 509 U.S. 602, 609-10 (1993)). “Forfeitures
-- payments in kind -- are thus ‘fines’ if they constitute punishment for an
offense.” Ibid. “Implicit in this interpretation of the Excessive Fines Clause is
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.”
Hopkins v. Okla. Pub. Emps. Ret. Sys., 150 F.3d 1155, 1162 (10th Cir. 1998);
see also Bajakajian, 524 U.S. at 328 (explaining that the Clause “limits the
government’s power to extract payments” from an individual) (emphasis
added).
In the typical case, the status of the forfeited asset as “property” is not
disputed. E.g., Timbs, 586 U.S. at ___, 139 S. Ct. at 686 (discussing forfeiture
of automobile); Bajakajian, 524 U.S. at 324 (discussing forfeiture of currency);
Cheeseman, 600 F.3d at 284 (discussing forfeiture of firearms and
ammunition). However, in cases in which the status of the asset taken from
the individual is disputed, courts resolve the dispute by examining state law.
E.g., Hopkins, 150 F.3d at 1162 (applying Oklahoma law); Pub. Emp. Ret.
Admin. Comm’n v. Bettencourt, 47 N.E.3d 667, 674-76 (Mass. 2016)
(applying Massachusetts law).
16
Thus, as both the trial court and Appellate Division properly recognized,
in accordance with the Bajakajian inquiry, the analysis in the instant matter
must begin by asking whether, under New Jersey law, defendant had a
property right in his pension such that the forfeiture of that “right” is a “fine”
within the meaning of the Eighth Amendment or the State Constitution. We
will consider defendant’s claim that the exaction is constitutionally
“excessive” only if we determine that, under New Jersey law, defendant had
such a protectible right in the first instance.
IV.
Determination of whether a fine was imposed on defendant requires
review of the legal principles governing the forfeiture of public pensions in
New Jersey to ascertain the nature of defendant’s interest in his pension.
A.
For many years, the seminal case on pension forfeiture was Uricoli,
which involved a question of pension forfeiture for a Chief of Police caught
fixing a motor vehicle ticket. See 91 N.J. at 65. After he was found guilty of
one count of malfeasance in office, Uricoli applied for a pension and was
denied based on his failure to render honorable service. Ibid. When
administrative appeals brought no relief, our Court granted Uricoli’s petition
for certification. Id. at 65-66.
17
The Court’s decision in Uricoli “reaffirmed the rule that honorable
service is an implicit requirement of every public pension statute, whether or
not this conditional term appears in the particular statute.” Id. at 66. Contrary
to the position being taken by the State, however, the Court determined that an
inflexible forfeiture rule was not clearly expressed in the language of the
pension statute and concluded that the Legislature meant to leave room for
judicial discretion. Id. at 77.
To assist courts and administrative bodies with implementation of a
flexible test for pension forfeiture, the Court identified factors to be considered
and balanced when applying that test to determine the reasonableness of
pension forfeiture, in the absence of any perceived legislative intent for
mandatory forfeiture. Id. at 77-78. The factors were rooted in equitable
considerations. Id. at 78. It bears noting that there is no suggestion of a
constitutional underpinning to the Court’s analysis.
Uricoli remained the key case on the exercise of discretion by pension
boards and courts considering whether to impose a pension forfeiture for many
years. Then, in 2007, the Legislature added N.J.S.A. 43:1-3.1 -- the statute
pursuant to which the State seeks forfeiture of defendant’s pension.
N.J.S.A. 43:1-3.1(a) provides that
[a] person who holds or has held any public office,
position, or employment, elective or appointive, under
18
the government of this State or any agency or political
subdivision thereof, who is convicted of any crime set
forth in subsection b. of this section, or of a
substantially similar offense under the laws of another
state or the United States which would have been such
a crime under the laws of this State, which crime or
offense involves or touches such office, position or
employment, shall forfeit all of the pension or
retirement benefit earned as a member of any State or
locally-administered pension fund or retirement system
in which he participated at the time of the commission
of the offense and which covered the office, position or
employment involved in the offense. As used in this
section, a crime or offense that “involves or touches
such office, position or employment” means that the
crime or offense was related directly to the person’s
performance in, or circumstances flowing from, the
specific public office or employment held by the
person.
[(emphasis added).]
The next subsection lists the state-law offenses that trigger application of
subsection (a). See N.J.S.A. 43:1-3.1(b)(1) to (23). Critically, subsection
(c)(2) mandates that
[a] court of this State shall enter an order of pension
forfeiture pursuant to this section . . . [u]pon application
of the county prosecutor or the Attorney General, when
the pension forfeiture is based upon a conviction of an
offense under the laws of another state or of the United
States. An order of pension forfeiture pursuant to this
paragraph shall be deemed to have taken effect on the
date the person was found guilty by the trier of fact or
pled guilty to the offense.
19
N.J.S.A. 43:1-3.1 (section 3.1) was in effect in 2012 when defendant’s offense
occurred. 6
Also in effect at that time was N.J.S.A 43:1-3. N.J.S.A. 43:1-3(a)
provides that “[t]he receipt of a public pension or retirement benefit is hereby
expressly conditioned upon the rendering of honorable service by a public
officer or employee.” Other subsections of section 3 allow for a flexible,
discretionary analysis of whether full or partial forfeiture of a pension is an
appropriate response to dishonorable conduct.
Subsection (b) provides that
The board of trustees of any State or locally-
administered pension fund or retirement system created
under the laws of this State is authorized to order the
forfeiture of all or part of the earned service credit or
pension or retirement benefit of any member of the fund
or system for misconduct occurring during the
member’s public service which renders the member’s
service or part thereof dishonorable and to implement
any pension forfeiture ordered by a court pursuant to
section 2 of L. 2007, c. 49 ([N.J.S.A.] 43:1-3.1).
[N.J.S.A. 43:1-3(b).]
And N.J.S.A. 43:1-3(c) lists factors for a board of trustees to “consider and
balance” “[i]n evaluating a member’s misconduct to determine whether it
6
See L. 2007, c. 49, § 2. N.J.S.A. 43:1-3.1(b) was amended after December
2012 to add two crimes to the list of predicate offenses that trigger mandatory
pension forfeiture. Those offenses are not implicated here.
20
constitutes a breach of the condition that public service be honorable and
whether forfeiture or partial forfeiture of earned service credit or earned
pension or retirement benefits is appropriate.” Those factors, which reflect the
considerations found in case law, see Uricoli, 91 N.J. at 77-78, are:
(1) the member’s length of service;
(2) the basis for retirement;
(3) the extent to which the member’s pension has
vested;
(4) the duties of the particular member;
(5) the member’s public employment history and
record covered under the retirement system;
(6) any other public employment or service;
(7) the nature of the misconduct or crime, including the
gravity or substantiality of the offense, whether it was
a single or multiple offense and whether it was
continuing or isolated;
(8) the relationship between the misconduct and the
member’s public duties;
(9) the quality of moral turpitude or the degree of guilt
or culpability, including the member’s motives and
reasons, personal gain and similar considerations;
(10) the availability and adequacy of other penal
sanctions; and
(11) other personal circumstances relating to the
member which bear upon the justness of forfeiture.
21
[N.J.S.A. 43:1-3(c)(1) to (11).]
The flexible analysis that the Legislature has left in place within section
3 does not give rise to ambiguity about the legislative scheme. Section 3
makes honorable service a condition of a right to a pension, and section 3.1
makes forfeiture of any right to a pension the result when honorable service is
not provided due to conviction of an enumerated offense.
The plain language of section 3.1 expresses an unambiguous legislative
intent to make the commission of certain offenses the basis for mandatory and
absolute pension forfeiture. The statutory language in section 3.1 leaves no
discretion for courts dealing with the entry of a judgment of conviction,
whether by trial verdict or plea, for the offenses enumerated in subsection (b).
N.J.S.A. 43:1-3.1(a) directs that the convicted individual “shall forfeit all of
the pension” (emphasis added). See State v. Thomas, 188 N.J. 137, 149-50
(2006) (explaining that “shall” is typically mandatory).
The factors identified in section 3 apply when mandatory absolute
forfeiture is not required by section 3.1. In other words, the factors for
consideration contained in N.J.S.A. 43:1-3, which resemble those set forth in
Uricoli, apply to public employee misconduct raising honorable service
questions outside of circumstances involving convictions for which section 3.1
requires mandatory and absolute forfeiture.
22
Defendant’s reliance on Uricoli and its discussion is therefore
unavailing. The Legislature has spoken, filling the gap in the pre-2007
pension statutes on which the Uricoli decision was premised. As a result of
the adoption of section 3.1, no longer can this Court conclude, as it did in
Uricoli, see 91 N.J. at 77, that the Legislature did not, unequivocally and
categorically, condition the receipt of a pension on the rendering of uniformly
honorable service.
Defendant committed his offense after the 2007 amendment to the
pension laws was enacted and, thus, by the time he committed his offense, the
Legislature had eliminated all doubt as to its intent that there be a certain
category of offenses the commission of which precludes receipt of a publicly
funded pension in New Jersey. 7 And to the extent that there is any question
that defendant’s federal conviction is an analogue to the state offenses listed
and, as per the statute’s wording, qualifies as the basis for the State’s
application, we endorse the findings and conclusion of the trial court.
7
It is apparent the Legislature has woven a piece that reiterates that honorable
service is a condition of eligibility for pension receipt, N.J.S.A. 4 3:1-3, and
individual pensions remain forfeitable, see N.J.S.A. 43:3C-9.5(d). N.J.S.A.
43:3C-9.5 was amended by chapter 78, Laws of 2011, in connection with the
Legislature’s discussion of non-forfeitable pension rights. Of particular import
is subsection (d), which provides that nothing in that subsection altered the
forfeitability of individual pensions. The Legislature took pains to state
expressly that individual pensions are still subject to forfeiture.
23
B.
Having determined that forfeiture of a pension is automatic and
mandatory upon the commission of certain offenses under section 3.1, it is
clear that defendant did not possess a property right in his pension protected by
the Federal or State Constitutions.
The Legislature has established that the pre-condition of honorable
service to the statutory right is not met when a conviction for an enumerated
offense occurs. In such a case, the conditional quasi-contractual right to
receive a public pension has not become the “property” of the employee. As
the trial court said, one cannot lose what one did not have to begin with . And,
without loss, there is no fine for purposes of the Bajakajian analysis.
In short, this case turns on the legislative decision in 2007 to take
discretion away from courts and administrative agencies when public
employees commit any of the identified offenses. The trial court correctly
noted that and faithfully applied the law as written. And, as the court’s
analysis noted, New Jersey’s approach to treat public pensions as quasi-
contractual rights rooted in statute, and not as property rights, is consistent
with the majority of courts to have addressed this issue. E.g., Hopkins, 150
24
F.3d at 1162; Hames v. City of Miami, 479 F. Supp. 2d 1276 (S.D. Fla. 2007). 8
Those decisions have similarly denied excessive-fine claims on the basis of the
first prong of the analysis. The Appellate Division’s reliance on family law
cases that have, in that setting, treated pensions as property subject to
equitable distribution was misplaced. So too does the dissent misplace
reliance on family law equitable-distribution law. That case law does not and
cannot convert a public pension into a nonforfeitable property right.
That first prong to an excessive-fine analysis -- whether the forfeiture
here was a “fine” within the meaning of the Eighth Amendment -- proves to be
an impediment that defendant cannot overcome. We hold that the forfeiture of
defendant’s pension under section 3.1 does not constitute a fine for purposes of
an excessive-fine analysis under the Federal or State Constitutions.
C.
As a result of our conclusion that the forfeiture worked here by operation
of N.J.S.A. 43:1-3.1 is not a fine, there is no reason to embark on a
constitutional analysis for excessiveness. The Appellate Division engaged in
that endeavor only because it reached a different conclusion on the issue of
8
We note that to the extent that the Appellate Division, and now the dissent,
found the reasoning of the Bettencourt decision persuasive, we find that
decision to be based on a significantly differently drawn statutory scheme and
body of case law. See 47 N.E.3d at 673-77.
25
whether this forfeiture constitutes a fine. Here, however, we need not reach
the question. Accordingly, we decline to review the Appellate Division’s
analysis for excessiveness and we vacate that portion of its opinion. See, e.g.,
Menendez, 204 N.J. at 95-96 (noting that courts do not engage in
constitutional rulings when unnecessary to our determination of an appeal).
V.
For the reasons expressed herein, we affirm with modification the
Appellate Division judgment. The award of summary judgment to the State is
affirmed.
JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and
PIERRE-LOUIS join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed
a dissent. CHIEF JUSTICE RABNER did not participate.
26
State of New Jersey,
Plaintiff-Respondent/Cross-Appellant,
v.
Bennie Anderson,
Defendant-Appellant/Cross-Respondent.
JUSTICE ALBIN, dissenting.
The Eighth Amendment of the United States Constitution prohibits a
state from imposing an excessive fine on a person convicted of a crime. In this
case, the complete forfeiture of defendant Bennie Anderson’s pension for an
isolated crime for which he received a probationary sentence and modest fine
by a federal court violates the Excessive Fines Clause. In my view, the
majority has denied Anderson the protections afforded by the Federal
Constitution by failing to call a fine by its true name and by characterizing
state law in a way that seemingly evades federal review. I therefore
respectfully dissent.
I.
Bennie Anderson, a Vietnam War veteran, served in various municipal
positions in Jersey City for thirty-eight and a half years, retiring in March 2017
1
at the age of fifty-nine with an early-service-retirement pension of $60,173.67
per year. Based on the estimate that Anderson would live to the age of eighty-
three, his pension at retirement was worth $1,462,220.18. 1
On November 21, 2017 -- while Anderson was receiving his pension --
he entered a plea of guilty in federal court to the offense of interference with
commerce by extortion under color of official right, which carried a maximum
sentence of twenty years of imprisonment and a maximum fine of $250,000.
18 U.S.C. §§ 1951(a); 3571(b)(3), (d). In his plea, Anderson took
responsibility for accepting a $300 bribe in exchange for altering the tax
description of a property for zoning-classification purposes when he worked in
the Tax Assessor’s Office in December 2012.
On March 5, 2018, a federal district court judge sentenced Anderson to
two years of probation and five months of home detention and ordered him to
pay a $3,000 fine and a $100 special assessment. As a result of his conviction,
the Employees’ Retirement System of Jersey City reduced Anderson’s pension
to $47,918.76 per year.
1
According to the New Jersey Court Rules’ Table of Life Expectancies for
All Races and Both Sexes, a person who is fifty-nine can expect to live
between 23.9 and 24.7 more years, or 24.3 years on average. R. app. I-A.
Multiplying $60,173.67 per year by 24.3 years (assuming Anderson lives to the
age of eighty-three) yields the value of $1,462,220.18.
2
In 2019, two years after Anderson’s retirement, the Attorney General’s
Office filed a verified complaint in lieu of prerogative writs in the Superior
Court seeking the forfeiture of Anderson’s entire pension pursuant to N.J.S.A.
43:1-3.1. That statute provides that a public employee who is convicted of the
type of crime that Anderson committed, a crime touching his office, “shall
forfeit all of the pension or retirement benefit earned as a member of” a
government retirement system. N.J.S.A. 43:1-3.1(a). In accordance with the
statute, the court ordered the total forfeiture of Anderson’s pension. 2
The issue before this Court is whether the total forfeiture of Anderson’s
pension valued at over one million dollars -- in comparison to the probationary
sentence and $3,100 financial penalty imposed by the federal court -- violated
the Eighth Amendment’s prohibition against excessive fines.
II.
A.
The Eighth Amendment’s prohibition against excessive fines applies to
the states through the Due Process Clause of the Fourteenth Amendment.
2
Anderson’s personal contributions into his pension were not forfeited. The
parties have not submitted documentation of the value of his contributions or
the total value of the forfeiture; however, Anderson’s counsel represented at
oral argument before this Court that he calculated the forfeiture value as “over
a million” dollars.
3
Timbs v. Indiana, 586 U.S. ___, 139 S. Ct. 682, 686-87 (2019). “The
touchstone of the constitutional inquiry under the Excessive Fines Clause is
the principle of proportionality: The amount of the forfeiture must bear some
relationship to the gravity of the offense that it is designed to punish.” United
States v. Bajakajian, 524 U.S. 321, 334 (1998). “[A] punitive forfeiture
violates the Excessive Fines Clause if it is grossly disproportional to the
gravity of a defendant’s offense.” Ibid. (emphasis added). That inquiry is
informed by the history of the Excessive Fines Clause, which “ traces its
venerable lineage back to at least 1215, when Magna Carta . . . . required that
economic sanctions ‘be proportioned to the wrong’ and ‘not be so large as to
deprive [an offender] of his livelihood.’” Timbs, 586 U.S. at ___, 139 S. Ct. at
687-88 (alteration in original) (emphasis added) (quoting Browning-Ferris
Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 271 (1989)); accord
Bajakajian, 524 U.S. at 335-36.
The majority asserts, however, that the proportionality review mandated
by the Eighth Amendment is unnecessary because the forfeiture of Anderson’s
pension is not a fine -- that because of Anderson’s dishonorable service he was
never entitled to the pension he was receiving and, accordingly, nothing was
taken from him. The meaning of what constitutes a fine for Eighth
Amendment and state law purposes therefore is critical to the analysis.
4
Under the Eighth Amendment, a fine is any payment extracted by the
government “whether in cash or in kind, as punishment for some offense.”
Bajakajian, 524 U.S. at 328 (quotation omitted). “Forfeitures -- payments in
kind -- are thus ‘fines’ if they constitute punishment for an offense.” Ibid.The “threshold question” for whether a payment constitutes a “fine” is whether
“the payment to the government involves turning over ‘property’ of some kind
that once belonged to the defendant.” Hopkins v. Okla. Pub. Emps. Ret. Sys.,
150 F.3d 1155, 1162 (10th Cir. 1998); accord Pub. Emp. Ret. Admin. Comm’n
v. Bettencourt, 47 N.E.3d 667, 672-73 (Mass. 2016). To answer that question,
we look to New Jersey law to determine whether Anderson had a cognizable
property interest in the pension that was forfeited upon his conviction.
B.
That a pension is a creature of contract does not mean that a public
employee does not have a property interest in his pension. A contract may
create a property right. See Saginario v. Att’y Gen., 87 N.J. 480, 492 n.3
(1981) (referring to “a statutory or contractual entitlement creating a property
interest”); 1 Williston on Contracts § 1:1 (4th ed. 2021) (“Enforceable contract
rights are deemed to be property rights.”).
Public workers enter into government service with a promise that part of
their wages will be deferred until their retirement. That deferred compensation
5
-- like the wages they receive weekly -- is earned every day through their
labor. See, e.g., Burgos v. State, 222 N.J. 175, 182 (2015) (“The individual
members of the public pension systems, by their public service, earned this
delayed part of their compensation.”); Steinmann v. Dep’t of the Treasury, 116
N.J. 564, 572 (1989) (“Pensions for public employees . . . . are in the nature of
compensation for services previously rendered and act as an inducement to
continued and faithful service.” (quoting Geller v. Dep’t of the Treasury, 53
N.J. 591, 597-98 (1969))); Spina v. Consol. Police & Firemen’s Pension Fund
Comm’n, 41 N.J. 391, 401 (1964) (recognizing that a government pension
“[i]n part . . . compensates for services already rendered”).
That public employees have a property interest in their pensions -- their
deferred wages -- is made clear by our family law jurisprudence. This Court
has stated that “a pension is considered property subject to equitable
distribution . . . . [I]t is additional compensation for services rendered for the
employer and a right acquired during the marriage.” L.M. v. Div. of Med.
Assistance & Health Servs., 140 N.J. 480, 496-97 (1995) (quotation omitted);
see also Whitfield v. Whitfield, 222 N.J. Super. 36, 45 (App. Div. 1987) (“[A]
pension plan [is] a form of deferred compensation for services rendered. As a
substitute for wages such benefits unquestionably constitute property.”).
6
A pension should not constitute property for one purpose but not another
-- particularly when the other results in evading the Excessive Fines Clause.
The Eighth Amendment is intended “to limit the government’s power to
punish.” Austin v. United States, 509 U.S. 602, 609 (1993). Taking from a
retired public employee the pension he is collecting is little different from
taking monies from the savings account where he has banked his wages for
years.
C.
Anderson had retired and was collecting his pension at the time of his
criminal conviction. No one disputes that “honorable service” is a condition
for the receipt of one’s pension. N.J.S.A. 43:1-3(a) provides that “[t]he receipt
of a public pension or retirement benefit is hereby expressly conditioned upon
the rendering of honorable service by a public officer or employee. ”
Accordingly, N.J.S.A. 43:1-3 permits the partial or total forfeiture of a public
employee’s pension for misconduct, depending on a weighing of eleven
statutory factors. See N.J.S.A. 43:1-3(b), (c) (authorizing a pension board “to
determine whether [an employee’s misconduct] constitutes a breach of the
condition that public service be honorable and whether forfeiture or partial
forfeiture of earned service credit or earned pension or retirement benefits is
7
appropriate” (emphasis added)). Under N.J.S.A. 43:1-3.1, however, forfeiture
of a pension is mandated for certain convictions.
To be clear, it was Anderson’s conviction -- a condition subsequent to
his retirement on pension -- that permitted the State to subject Anderson’s
pension to forfeiture. See 13 Williston on Contracts § 38:9 (4th ed. 2021)
(defining “condition subsequent” as a condition that divests a duty to perform
a contract after the duty has accrued). In other words, the conviction, the
condition subsequent that triggered the forfeiture, did not arise until after
Anderson’s pension had vested and he was receiving monthly pension checks.
This issue is not whether Anderson’s pension can be forfeited but
whether a pension is a species of property, which, when forfeited, is subject to
the strictures of the Eighth Amendment. See Uricoli v. Bd. of Trs., PFRS, 91
N.J. 62, 76 (1982) (“[F]orfeiture -- whether of one’s pension or any other
property or benefit to which one is otherwise entitled -- is a penalty or a
punishment for wrongful conduct.” (emphasis added)).
The Massachusetts Supreme Judicial Court has addressed that issue and
held that the forfeiture of a pension resulting from a “ violation of the laws
applicable to [a public employee’s] office or position” exacted a fine within
the meaning of the Excessive Fines Clause. Bettencourt, 47 N.E.3d at 670,
672, 676-77 (quoting Mass. Gen. Laws ch. 32, § 15(4)). Bettencourt, a police
8
officer, was convicted of twenty-one counts of unauthorized access to a
computer system and, at the time, had been a member of the municipal
retirement system for over twenty-five years. Id. at 670-71. The public
employee retirement administration commission found that his conviction
related to his office, mandating forfeiture of his entire pension under the
applicable statute. Id. at 671.
The Massachusetts high court held that the forfeiture of the entirety of
Bettencourt’s pension violated the Eighth Amendment. Id. at 670, 680-81.
The court explained “that a public employee who is a member of a retirement
system holds an interest in retirement benefits that originates in a ‘contract’
and in substance amounts to a property right.” Id. at 675. According to the
court, “it is precisely [that] property interest that the employee is required to
forfeit, and the forfeiture effects what is in substance an extraction of
payments from the employee to the Commonwealth,” rendering it a fine
subject to Eighth Amendment review. Id. at 677.
Anderson should stand in no different shoes than Bettencourt. Anderson
had a property interest in his pension -- deferred compensation accumulated
over thirty-eight and a half years of public employment. The punitive
forfeiture of Anderson’s pension is a fine for Eighth Amendment purposes.
The question remains whether the forfeiture of a pension valued at over one
9
million dollars was so disproportionate to the offense of accepting a $300
bribe that it violates the Excessive Fines Clause.
III.
A.
In evaluating whether a forfeiture is “grossly disproportional to the
gravity of a defendant’s offense” under the Eighth Amendment, Bajakajian,
524 U.S. at 334, courts may consider the following factors: (1) “the nature of
the substantive crime”; (2) whether the defendant “fit into the class of persons
for whom the [criminal] statute was principally designed”; (3) the maximum
sentence and fine “permitted under the statute” and “recommended by the
Sentencing Guidelines,” as “compare[d] [to] the amount the government
sought to forfeit”; and (4) the harm caused by the defendant’s conduct, United
States v. Cheeseman, 600 F.3d 270, 283-84 (3d Cir. 2010) (citing Bajakajian,
524 U.S. at 337-39); accord United States v. Viloski, 814 F.3d 104, 110 (2d
Cir. 2016). At least two federal circuit courts have held that a court may also
consider the fine’s effect on a person’s livelihood. See Viloski, 814 F.3d at
111 (“[H]ostility to livelihood-destroying fines became ‘deeply rooted’ in
Anglo-American constitutional thought and played an important role in
shaping the Eighth Amendment.”); United States v. Levesque, 546 F.3d 78, 84
(1st Cir. 2008) (“Such ruinous monetary punishments are exactly the sort that
10
motivated the 1689 [English] Bill of Rights and, consequently, the Excessive
Fines Clause.”).
B.
By the standards governing the Excessive Fines Clause, the complete
forfeiture of Anderson’s pension -- deferred compensation earned over a career
of thirty-eight and a half years and intended to sustain him in his retirement --
was “grossly disproportional” to his offense. That conclusion does not
diminish the seriousness of the crime committed by Anderson. By accepting a
$300 bribe in return for altering a tax description of a property from a two-unit
dwelling to a three-unit dwelling, Anderson betrayed a public trust. The
betrayal of that trust, even once in a long career, must be condemned and
punished. But the grossly disproportionate punishment here -- a forfeiture
likely to cause a ruinous financial hardship in the later years of Anderson’s life
-- does not fit the crime.
Anderson did not take a series of bribes or engage in financial chicanery
over a course of years. He received a benefit of $300 for accepting a single
bribe in an almost four-decade career. In Anderson’s plea agreement, the
government acknowledged that he “clearly demonstrated a recognition and
affirmative acceptance of personal responsibility.” Although the federal crime
to which Anderson pled guilty exposed him to a potential twenty -year
11
maximum prison sentence and a $250,000 maximum fine, and although the
sentencing guidelines called for a range of between ten and thirty -seven
months of imprisonment, see U.S. Sentencing Comm’n, Guidelines Manual
420 (Nov. 1, 2016), the court sentenced Anderson to only a probationary term
with five months of home detention and ordered him to pay only $3,100 in
financial penalties. See Bajakajian, 524 U.S. at 339 n.14 (“That the maximum
fine and Guideline sentence to which respondent was subject were but a
fraction of the penalties authorized . . . show that respondent’s culpability
relative to other potential violators . . . is small indeed.”).
“The amount of the forfeiture must bear some relationship to the gravity
of the offense that it is designed to punish.” Id. at 334. Measuring the
punishment imposed by the federal court against the forfeiture exacted by the
State -- the taking of over one million dollars in pension benefits that
Anderson had already begun receiving -- leads to but one conclusion: The
forfeiture of Anderson’s entire pension was “grossly disproportional” to the
crime and therefore violated the Eighth Amendment’s Excessive Fines Clause. 3
3
That is not to say that a lesser forfeiture would not pass constitutional
muster. Indeed, the Employees’ Retirement System of Jersey City found a
reduction of Anderson’s pension from $60,173.67 to $47,918.76 per year
appropriate. That forfeiture, reducing his pension by $297,794.31 over 24.3
years, might well withstand constitutional scrutiny.
12
IV.
In my view, a state court’s decision cannot evade Eighth Amendment
review by calling a fine imposed as punishment by some other name.
Anderson had a property interest in his pension, and the State exacted a
forfeiture of the entirety of that pension in violation of the Excessive Fines
Clause.
I therefore respectfully dissent.
13