Vicki Baumgartner, Personal Representative Of The Estate of Richard R. Baumgartner v. Tennessee Consolidated Retirement System ( 2018 )

10/03/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 21, 2018 Session
VICKI BAUMGARTNER, PERSONAL REPRESENTATIVE OF THE
ESTATE OF RICHARD R. BAUMGARTNER v. TENNESSEE
CONSOLIDATED RETIREMENT SYSTEM
Appeal from the Chancery Court for Davidson County
No. 17-0067-IV Russell T. Perkins, Chancellor
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No. M2017-01715-COA-R3-CV
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This appeal involves the forfeiture of the retirement benefits of a former Tennessee trial
judge after he was convicted in federal court of numerous felonies arising out of his
official capacity as a trial judge and constituting malfeasance in office. The former trial
judge appealed the termination of his benefits and participated in a contested case
proceeding before an administrative law judge, who ultimately determined that the
retirement benefits were properly terminated based on the felony convictions and that the
statute requiring such forfeiture was not unconstitutional as applied to the former trial
judge. The chancery court agreed with these conclusions. We likewise conclude that the
application of the forfeiture statute did not unconstitutionally impair the pension contract
of the former trial judge, nor did it unilaterally impose an impermissible retrospective law
or constitute an excessive fine. We further conclude that the retirement benefits were
suspended as of the appropriate date, despite the former trial judge’s insistence to the
contrary. Accordingly, we affirm the decision of the chancery court and remand for
further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded
BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.
William T. Ramsey and Benjamin C. Aaron, Nashville, Tennessee, for the appellant,
Vicki Baumgartner.
Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; and Brad H. Buchanan, Senior Counsel, for the appellee, Tennessee
Consolidated Retirement System.
OPINION
I. FACTS & PROCEDURAL HISTORY
Richard Baumgartner entered judicial office in 1992 as a Tennessee state trial
judge in Knox County, Tennessee. Upon assuming office, Baumgartner elected to
become a member of the Tennessee Consolidated Retirement System (“TCRS”). He was
re-elected to public office as a state trial judge in subsequent years and most recently in
August 2006. On March 10, 2011, Baumgartner left public office, and he applied for
retirement benefits from TCRS days later. Baumgartner’s application was processed in
April 2011, and he began drawing retirement benefits retroactive to the effective date of
his retirement.
On May 15, 2012, Baumgartner was indicted by a federal grand jury of seven
felony counts of misprision of a felony for concealing a federal drug trafficking
conspiracy between June 2009 and October 2010 (dates occurring while he was still in
office).1 On November 2, 2012, Baumgartner was found guilty by a jury of five of the
seven felony counts. He concedes that the convictions arose out of his official capacity
as a state judge and constituted malfeasance in office. After the denial of his motion for
new trial, Baumgartner was sentenced on April 10, 2013. He appealed his convictions to
the United States Court of Appeals, Sixth Circuit, which overturned one conviction but
upheld the other four. See U.S. v. Baumgartner, 581 F. App’x 522 (6th Cir. 2014) cert.
denied 136 S. Ct. 30 (Oct. 5, 2015).
Effective November 2012, after the jury returned its guilty verdict, TCRS
suspended Baumgartner’s TCRS retirement benefits pursuant to Tennessee Code
Annotated section 8-35-124, which provides for the forfeiture of a person’s retirement
benefits from TCRS if that person is convicted of a felony arising out of his or her
official capacity constituting malfeasance in office. Baumgartner pursued the appeal
process through TCRS and eventually sought review in a contested case proceeding
pursuant to the Uniform Administrative Procedures Act. The case was assigned to an
1
“The federal misprision statute criminalizes the concealment of federal felonies.” U.S. v.
Baumgartner, 581 F. App’x 522, 529 (6th Cir. 2014). The misprision statute provides:
Whoever, having knowledge of the actual commission of a felony cognizable by a court
of the United States, conceals and does not as soon as possible make known the same to
some judge or other person in civil or military authority under the United States, shall be
fined under this title or imprisoned not more than three years, or both.
18 U.S.C.A. § 4. To sustain a conviction against a defendant, four elements must be proven beyond a
reasonable doubt: “(1) the principal committed and completed the felony alleged; (2) the defendant had
knowledge of the fact; (3) the defendant failed to notify the authorities; and (4) the defendant took
affirmative steps to conceal the crime of the principal.” Baumgartner, 581 F. App’x at 526 (quoting U.S.
v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988)).
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administrative law judge (“ALJ”). The relevant facts were undisputed, and the ALJ
ultimately granted summary judgment to TCRS upon concluding that Baumgartner’s
retirement benefits were properly terminated based on his felony convictions. The ALJ
also rejected Baumgartner’s as-applied challenge to the constitutionality of the
aforementioned forfeiture statute. Baumgartner sought further review before the TCRS
Board of Trustees, but the Board entered and adopted the decision of the ALJ as the final
order in the administrative proceeding.
Baumgartner then filed a petition for judicial review in the chancery court of
Davidson County. After reviewing the record, the chancery court concluded that the
actions of TCRS in terminating Baumgartner’s retirement benefits were in accordance
with the governing statute and “entirely constitutional.” Baumgartner timely filed a
notice of appeal. After the appellate briefs were filed in this matter, Baumgartner died,
and his wife was substituted as a party as the personal representative of his estate. For
consistency, we will continue to refer to the appellant simply as “Baumgartner.”
II. ISSUES PRESENTED
Baumgartner raises the following issues on appeal, which we have only slightly
reworded:
1. Whether the state and federal constitutions prohibit application of Tennessee Code
Annotated section 8-35-124(a)(3) to Baumgartner, as he joined the state retirement
system and completed the minimum amount of creditable service to qualify for
retirement benefits before the effective date of the most recent amendment adding
subsection (a)(3);
2. Whether the state and federal constitutional prohibitions on excessive fines
preclude a total forfeiture of nearly $4,900 per month in retirement benefits and
more than 22 years of creditable service under the circumstances of this case; and
3. Whether the statutory requirement in Tennessee Code Annotated section 8-35-
124(b)(1) to stop retirement benefits upon “initial conviction” refers to the date the
judgment of conviction was entered rather than the date of the guilty verdict.
For the following reasons, we affirm the decision of the chancery court and remand for
further proceedings.2
2
Baumgartner also mentioned in his brief and reply brief on appeal issues such as lack of
consideration to support a contractual modification of his retirement contract and breach of the duty of
good faith and fair dealing. However, the trial court made no ruling on either of these issues, and the
three issues presented for review on appeal in Baumgartner’s brief do not mention these matters. “[A]n
issue may be deemed waived when it is argued in the brief but is not designated as an issue in accordance
with Tenn. R. App. P. 27(a)(4).” Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012); see also In re
Brown, 470 S.W.3d 433, 450 n.6 (Tenn. Ct. App. 2015) (quoting Bunch v. Bunch, 281 S.W.3d 406, 410
(Tenn. Ct. App. 2008)) (“‘Courts have consistently held that issues must be included in the Statement of
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III. STANDARD OF REVIEW
“[T]he Board of Trustees of the Tennessee Consolidated Retirement System is an
agency within the definition of § 4-5-102(2)” of the Uniform Administrative Procedures
Act. Crawford v. Tenn. Consol. Ret. Sys., 732 S.W.2d 293, 296 (Tenn. Ct. App. 1987).
Accordingly, the UAPA sets out the standard of review we apply when reviewing a final
administrative decision of the TCRS. See Shoffner v. Tenn. Consol. Ret. Sys., No.
M2014-00070-COA-R3-CV, 2014 WL 7432123, at *4 (Tenn. Ct. App. Dec. 29, 2014).
Specifically:
(h) The court may affirm the decision of the agency or remand the case for
further proceedings. The court may reverse or modify the decision if the
rights of the petitioner have been prejudiced because the administrative
findings, inferences, conclusions or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion; or
(5)(A) Unsupported by evidence that is both substantial and material in the
light of the entire record.
(B) In determining the substantiality of evidence, the court shall take into
account whatever in the record fairly detracts from its weight, but the court
shall not substitute its judgment for that of the agency as to the weight of
the evidence on questions of fact.
Tenn. Code Ann. § 4-5-322(h).
An ALJ is authorized to decide a case on summary judgment grounds. Shoffner,
2014 WL 7432123, at *4 (citing Tenn. Code Ann. § 4-5-308(a); Yokley v. State Bd. of
Educ., 305 S.W.3d 523, 526-27 (Tenn. Ct. App. 2009); Tenn. Comp. R. & Regs. 1360-4-
1-.01(3), 1360-4-1-.09(2)). In that case, on appeal, we apply the well-known
requirements applicable to summary judgment and review the decision de novo with no
presumption of correctness. Id. at *5.
Likewise, issues regarding statutory and constitutional interpretation are matters of
law, which we review de novo with no presumption of correctness afforded to the
conclusion of the court below. In re Bentley D., 537 S.W.3d 907, 910 (Tenn. 2017).
Issues Presented for Review required by Tennessee Rules of Appellate Procedure 27(a)(4). An issue not
included is not properly before the Court of Appeals.’”). We have limited our review on appeal to the
issues listed in Baumgartner’s brief.
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IV. DISCUSSION
A. Constitutionality of Applying section 8-35-124(a)(3)
The first issue raised on appeal is whether the state and federal constitutions
prohibit application of the current version of Tennessee Code Annotated section 8-35-
124(a)(3) to Baumgartner, as he joined the state retirement system and completed the
minimum amount of creditable service to qualify for retirement benefits before the
effective date of the most recent amendment adding subsection (a)(3).
We note at the outset that Tennessee’s pension forfeiture requirement is not
unique. Many states have pension forfeiture statutes, in varying forms. See James B.
Jacobs et al, Pension Forfeiture: A Problematic Sanction for Public Corruption, 35 Am.
Crim. L. Rev. 57, 58 (1997) (“[P]ension forfeiture is becoming increasingly popular.
Although pension forfeiture statutes differ in detail, they basically provide that upon
conviction of certain criminal offenses, some public servants forfeit their right to receive
pension benefits or a portion thereof.”)
When Baumgartner became a trial judge and a member of TCRS in 1992, existing
Tennessee law provided the following with regard to government employees and elected
or appointed officials:
No employee or elected or appointed official of the state or any political
subdivision thereof shall be entitled to receive retirement benefits from the
Tennessee Consolidated Retirement System, any superseded retirement
system or any other public pension system if such employee or official shall
be convicted in any court of the State of Tennessee of a felony arising out
of his employment or official capacity, constituting malfeasance in office.
See 1982 Tenn. Pub. Acts, c. 927, § 4 (amending Tenn. Code Ann. § 8-35-116(b)(1) to
add such language).3 This section applied to persons who became members of public
pension plans after July 1, 1982, such as Baumgartner. See 1982 Tenn. Pub. Acts, c. 927,
§§ 4, 6. Notably, the statute provided for forfeiture of retirement benefits upon a
conviction in any court of this state, but the statute did not originally include federal
court. See id.
One year after Baumgartner became a trial judge and a member of TCRS, the
General Assembly amended the relevant statute by designating the existing language as
subsection (a)(1) of Tennessee Code Annotated section 8-35-124 and reiterating that it
3
At some point between 1988 and 1993, Tennessee Code Annotated section 8-35-116(b)(1)(E),
containing the aforementioned language, was renumbered as section 8-35-124. The date of renumbering
is unclear but is not relevant for purposes of our analysis.
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would apply “only to persons who bec[a]me members of public pension plans after July
1, 1982.” 1993 Tenn. Pub. Acts, c. 508, §§ 1-2. The General Assembly provided that a
newly added subsection (a)(2) would apply to “persons who become members of public
pension plans on or after the effective date of this act,” which was May 31, 1993, and
subsection (a)(2) provided:
Notwithstanding any other law to the contrary, no employee or elected or
appointed official of this state or any political subdivision thereof shall be
entitled to receive retirement benefits from the Tennessee Consolidated
Retirement System, any superseded retirement system or any other public
pension system, if such employee or official is convicted in any state or
federal court of a felony arising out of his employment or official capacity,
constituting malfeasance in office.
Id. (emphasis added).4 Because Baumgartner was a member of TCRS before May 31,
1993, subsection (a)(2) did not apply to him.
Effective February 15, 2006, the statute was amended again, to its current form,
through the “Comprehensive Governmental Ethics Reform Act of 2006.” See 2006 Tenn.
Pub. Acts (1st Ex. Sess.), c. 1, § 42(a). The 2006 amendment retained subsections (a)(1)
and (a)(2), discussed above, for government employees and elected or appointed officials,
but it further added subsection (a)(3) that provides the following only with regard to
elected officials:
Notwithstanding any other law to the contrary, each time a person is elected
to a public office of this state or any political subdivision thereof, such
person shall, as a condition of such election, be deemed to consent and
agree to the forfeiture of such person’s retirement benefits from the
Tennessee Consolidated Retirement System, any superseded retirement
system or any other public pension system if such person is convicted in
any state or federal court of a felony arising out of that person’s official
4
The 1993 amendment also added subsection (f), which provides:
Any person convicted of a felony as provided in this section may elect, within six (6)
months of his conviction, to have a monthly retirement allowance paid to whomever he
had designated as beneficiary on file with the retirement system at the time of his
conviction; provided, however, such beneficiary must have been his spouse or child at the
time of his conviction. The benefits shall be paid to such beneficiary following the
person’s death and upon meeting all other eligibility requirements applicable to a
beneficiary. The amount of any allowance payable hereunder shall be equal to the
retirement allowance which would have been payable had the person retired under the
survivorship option elected.
1993 Tenn. Pub. Acts, c. 508, § 6.
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capacity, constituting malfeasance in office. Notwithstanding the
provisions of § 8-35-124(e) or any other law to the contrary, this
subdivision (a)(3) shall apply regardless of the date the person became a
member of the public pension system, such person having consented to the
provisions of this subsection as a condition of such election.
Id.; see Tenn. Code Ann. § 8-35-124(a)(3).
Thus, in its current form, the statute contains the following pertinent sections:
(a)(1) No employee or elected or appointed official of the state or any
political subdivision thereof shall be entitled to receive retirement benefits
from the Tennessee consolidated retirement system, any superseded
retirement system or any other public pension system, if such employee or
official is convicted in any court of this state of a felony arising out of the
employee’s or official’s employment or official capacity, constituting
malfeasance in office.
(2) Notwithstanding any other law to the contrary, no employee or elected
or appointed official of this state or any political subdivision thereof shall
be entitled to receive retirement benefits from the Tennessee consolidated
retirement system, any superseded retirement system or any other public
pension system, if such employee or official is convicted in any state or
federal court of a felony arising out of that person’s employment or official
capacity, constituting malfeasance in office.
(3) Notwithstanding any other law to the contrary, each time a person is
elected to a public office of this state or any political subdivision of this
state, such person shall, as a condition of such election, be deemed to
consent and agree to the forfeiture of such person’s retirement benefits from
the Tennessee consolidated retirement system, any superseded retirement
system or any other public pension system, if such person is convicted in
any state or federal court of a felony arising out of that person’s official
capacity, constituting malfeasance in office. Notwithstanding subsection (e)
or any other law to the contrary, this subdivision (a)(3) shall apply
regardless of the date the person became a member of the public pension
system, such person having consented to this subdivision (a)(3) as a
condition of such election.
...
(e) Subdivision (a)(1) applies only to persons who become members of
public pension plans after July 1, 1982. Subdivision (a)(2) applies only to
persons who become members of public pension plans on or after May 31,
1993.
Tenn. Code Ann. § 8-35-124.
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Baumgartner stood for re-election and was re-elected in August 2006, after the
February 15, 2006 effective date of the 2006 amendment adding subsection (a)(3). Still,
he insists that it is unconstitutional to apply subsection (a)(3) to him to require forfeiture
of his retirement benefits because he had already completed the minimum amount of
creditable service to qualify for retirement benefits before the effective date of the 2006
amendment. To require forfeiture of his benefits, he contends, would violate the
constitutional prohibitions against the impairment of contracts and retrospective laws.
See U.S. Const. art. I, § 10 (“No State shall . . . pass any . . . Law impairing the
Obligation of Contracts[.]”); Tenn. Const. art. I, § 20 (“[N]o retrospective law, or law
impairing the obligations of contracts, shall be made.”). Baumgartner claims that he had
a contractual right to receive benefits according to the terms of the law in effect when he
completed the minimum amount of creditable service to qualify for retirement benefits,
and under that law, forfeiture was not required based on felony convictions in federal
court. He contends that the 2006 amendment “changed the terms of his contract and thus
impaired it.” For “essentially the same reasons” expressed in his argument regarding
impairment of contracts, Baumgartner claims that his rights with respect to his retirement
benefits were fixed and that any later detrimental modifications could not be
retrospectively applied to him.
A series of decisions from the Tennessee Supreme Court provides guidance on this
issue. First, the court decided Miles v. Tennessee Consolidated Retirement System, 548
S.W.2d 299, 300 (Tenn. 1976), which was a suit for declaratory judgment brought by
several retired and active judges challenging the constitutionality of 1975 legislation
changing the terms of their pension plans in connection with the newly created TCRS.
The judges argued that the 1975 legislation constituted an unconstitutional retrospective
law impairing their contracts with the State. Id. at 301. The Tennessee Supreme Court
separated its discussion of the retired judges from that regarding the active judges. The
retired judges had retired or resigned and ended their terms of service prior to the 1974
elections, while each of the active judges was re-elected in 1974, “thereby commencing a
term of office.” Id. at 302.
For the retired judges, the supreme court held that the State of Tennessee had
entered into “a contract with [the retired judges] to pay them a pension upon their
retirement in accordance with the law in effect at that time, setting the pension for [the
retired judge] at the time of his retirement and for [the judge who resigned] at the time of
his resignation.” Id. at 304 (emphasis added). The court held that these judges had
“completed their contracts with the State of Tennessee” when they retired or resigned, so
that the terms of their pensions were those established by the statutes existing at that time.
Id. Because the subsequently enacted 1975 legislation would reduce those benefits, the
court held that the legislation impermissibly impaired the contract between the State of
Tennessee and the retired judges. Id. The court explained,
[A]n offer of a pension, the acceptance of same, and the completion of the
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service of the employee, creates a vested interest in said pension which will
not be denied either to the participant or his family.
The Appellants insist that the General Assembly is empowered to
reasonably modify pension benefits, even if vested. We do not agree. Such
power is not available to the General Assembly in the absence of a showing
that a vital interest of the State must be protected by an exercise of the
police power.
Id. at 305.
Next, the Miles Court addressed the arguments from the active judges, who were
re-elected and began another term of office on September 1, 1974. Id. at 306. The
supreme court concluded that “the State of Tennessee entered into a contract with these
Judges for a period of eight (8) years” and that “these Judges relied upon the promises of
the State, as set forth in the statutory retirement scheme in existence on September 1,
1974, when they commenced the eight (8) year term of their employment.” Id. (emphasis
added). The 1975 legislation would “impair the terms of this contract” and were
therefore unconstitutional. Id. The court explained,
‘The Legislature may strengthen the actuarial fibers but it cannot break the
bonds of contractual obligations. The permissible changes, amendments
and alterations provided for by the Legislature can apply only to conditions
in the future, and never to the past. According to the cardinal principle of
justice and fair dealings between government and man, as well as between
man and man, the parties shall know prior to entering into a business
relationship the conditions which shall govern that relationship. Ex post
facto legislation is abhorred in criminal law because it stigmatizes with
criminality an act entirely innocent when committed. The impairment of
contractual obligations by the Legislature is equally abhorrent because such
impairment changes the blueprint of a bridge construction when the spans
are half way across the stream.’
Id. (quoting Hickey v. Pittsburg Pension Bd., 378 Pa. 300, 106 A.2d 233, (Pa. 1954)).
Five years after Miles, the supreme court decided Blackwell v. Quarterly County
Court of Shelby County, 622 S.W.2d 535 (Tenn. 1981), wherein the court considered the
extent to which a local legislative body could validly modify the terms of a pension plan
it had previously adopted for its public employees. At the outset, the supreme court
emphasized that “this opinion deals only with public employees whose compensation and
term of office are not governed by special provisions of the state constitution, as were
those of all of the judges involved in the Miles case[.]” Id. at 537. The court explained
that the public employees at issue in Blackwell could not be said to have “contracts”
similar to those of the judges in the Miles case. Id. at 540. Accordingly, the supreme
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court said that the Miles case had “only limited application” to the issues before it. Id. at
537.
The county employees in Blackwell argued that “no detrimental change whatever,
regardless of how reasonable or necessary for the financial integrity of the plan, could
legally be made [to the plan] without unanimous consent of all affected beneficiaries.”
Id. at 539. Even in the absence of a contract of employment, the supreme court agreed
that “[a]t some point after an employee has performed services or has paid into a pension
and retirement plan, he acquires fixed and immutable rights in the system.” Id. at 540. In
that circumstance, the court explained that the employee’s rights “are subject to the terms
and conditions of the pension plan” and that “no contractual rights, other than those
conferred by the plan, exist simply by reason of employment.” Id. (emphasis added).
Still, the supreme court recognized that revisions and modifications in retirement and
pension systems “are almost inevitably required.” Id. at 540-41. The court went on to
say,
[W]e are not convinced that a plan is “frozen” against detrimental changes
or modifications the moment an employee begins to participate in it, where
such changes are necessary to preserve the fiscal and actuarial integrity of
the plan as a whole. It seems to us that public policy demands that there be
a right on the part of the public employer to make reasonable modifications
in an existing plan if necessary to create or safeguard actuarial stability,
provided that no then accrued or vested rights of members or beneficiaries
are thereby impaired.
Id. at 541. After citing some Tennessee statutes regarding pension plans, the supreme
court found that the “inescapable” conclusion was that “the General Assembly considers
that reasonable modifications may be made in public pension plans in order to keep them
actuarially sound.” Id. at 542. The plaintiffs relied on a provision of a private act stating
that the provisions of the system would “constitute vested interests” between the
members and the county. Id. However, the court interpreted this to mean that the
members had “vested interests” in the assets of the retirement system but not in “the
precise clauses and terms of the plan as it existed at the inception of their employment, so
as to render the same immutable and beyond necessary amendment by the governing
body.” Id. The court noted the “varied and conflicting views” taken around the country
regarding “the rights of public officers and employees who are within the coverage of a
statutory pension system.” Id. Ultimately, the court adopted “the so-called Pennsylvania
rule, which permits reasonable modifications when necessary to protect or enhance
actuarial soundness of the plan, provided that no such modification can adversely affect
an employee who has complied with all conditions necessary to be eligible for a
retirement allowance.” Id. at 543. This rule, the court concluded, served “the public
interest requiring a reasonable amount of flexibility on the part of the public employer.”
Id.
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Applying this rule to the facts before it, the supreme court concluded that the
county employees who were eligible for retirement benefits under the terms of the plan
existing before the county’s proposed modification had a “right” that could not “validly
be taken from them without their consent[.]” Id. (emphasis added). In other words, the
new provisions could not be adversely applied to those employees who had the requisite
minimum number of years of creditable service in the system. Id. However, the new
provision could be applied to employees who did not yet have such eligibility, as the
evidence showed that the change met the requirements of the Pennsylvania rule. Id.
One month after the Blackwell decision was issued, the supreme court had
occasion to apply it and the Pennsylvania rule in Roberts v. Tennessee Consolidated
Retirement System, 622 S.W.2d 544, 544-45 (Tenn. 1981), a case involving changes to
the retirement benefits of two assistant attorneys general of the State. Noting that the
Pennsylvania rule applies “with respect to alterations in retirement pension plans for
public employees,” the court found Blackwell determinative of the issue before it. Id. at
545. According to the court, Blackwell held that:
[A] public employer could make changes in such a plan when reasonably
required for the fiscal integrity of the plan, even though such changes were
detrimental to the beneficiaries of the plan, ‘provided that no such
modification can adversely affect an employee who has complied with all
conditions necessary to be eligible for a retirement allowance.’
Id. (quoting Blackwell, 622 S.W.2d at 535). Again, the court concluded that an adverse
change in the plan could not be applied to an employee who, as of the effective date of
the amendment, already had the minimum requisite years of creditable service under the
plan. Id. The court reiterated that the Pennsylvania rule protects against “changes which
adversely affect credits, rights and benefits accrued as the result of and attributable to
years of service rendered prior to the effective date of such changes.” Id. at 545. Briefly,
the court acknowledged the appellants’ argument that an assistant attorney general in that
case had “acquiesced in the 1975 amendment and [was] therefore precluded from
challenging it.” Id. Without additional discussion, the court simply concluded that the
“evidentiary record” before the court did not support the appellants’ contention. Id.
Finally, in Felts v. Tennessee Consolidated Retirement System, 650 S.W.2d 371
(Tenn. 1983), the supreme court considered a case involving changes to the retirement
benefits of a former Tennessee Supreme Court justice. Justice Felts became a member of
the Tennessee Supreme Court in 1960, the relevant statute defining his retirement rights
was amended to his detriment in 1963, and he retired in 1965. Id. at 372. The suit was
brought seeking a declaration that this change was an unconstitutional impairment of his
contract with the State. Id. at 373. Relying on Miles, the court of appeals had concluded
that the justice was entitled to pension benefits according to the relevant statute in effect
in 1960, as that was the version of the statute in effect when his term began and “a part of
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the employment contract.” Id. at 374. The supreme court found no error in the decision
of the court of appeals and affirmed it in all respects. Id. at 375. The supreme court
discussed the Miles case as it applied specifically to judges but also said that in Blackwell
and Roberts, the court had “dealt more comprehensively with issues concerning the
vesting of rights under retirement pension plans for government officials and employees
as well as the extent to which such plans may be altered to the detriment of
beneficiaries.” Id. at 374. The court summarized the rule from these cases as follows:
[A] public employer may make changes in such a plan when reasonably
required to do so for the fiscal integrity thereof, even though such changes
be detrimental to the beneficiaries of the plan, except that, no such
modification can be permitted to adversely affect an employee who has
complied with all conditions necessary to be eligible for a retirement
allowance.
Id. Applying “the rule of these later cases as well as under Miles,” the supreme court
concluded that the rights of Justice Felts had already vested when the amendment at issue
became effective in 1963. Id. The court concluded that the justice’s retirement benefits
should be determined “under the statutes as they existed in 1960,” when he began his last
term of office. Id. at 375.
The supreme court was also asked to find that Justice Felts “waived his rights to
the greater benefits to which he was entitled under [the statute] as it existed in 1960”
because he “indicated his acceptance of the modifications” by accepting a reduced benefit
amount for a number of years. Id. Considering the facts in the record, the court found no
basis for concluding that Justice Felts “ever voluntarily and knowingly relinquished or
abandoned the right to have his pension benefits determined under the provisions of [the
statute] as it existed in 1960.” Id. His receipt of reduced benefit checks did not amount
to a knowing waiver because there was no evidence that he was aware that the amount
received was incorrect. Id.
Several guiding principles can be gleaned from these decisions.5 Miles
demonstrates that the State of Tennessee enters into a contract with judges for a period of
eight years commencing with each term of office. 548 S.W.2d at 306. The terms of that
contract are “set forth in the statutory retirement scheme in existence . . . when they
commence[] the eight (8) year term of their employment.” Id.; see also Felts, 650
S.W.2d at 375 (looking to the retirement statutes as they existed when Justice Felts began
his final term of office to determine his pension rights). During the term of the eight-year
contract, the state cannot modify the statutory retirement scheme to “adversely affect an
employee who has complied with all conditions necessary to be eligible for a retirement
5
The Tennessee Supreme Court also applied Blackwell and the Pennsylvania rule in Knox Cty. v.
City of Knoxville, 786 S.W.2d 936, 941-42 (Tenn. 1990).
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allowance.” Blackwell, 622 S.W.2d at 543; see also Felts, 650 S.W.2d at 374-75. Judges
who have the requisite minimum number of years of creditable service in the system have
certain rights that cannot “validly be taken from them without their consent[.]”
Blackwell, 622 S.W.2d at 543. However, courts will consider whether the individual
acquiesced in the change, Roberts, 622 S.W.2d at 545, or waived his or her right to have
pension benefits determined under the law as it existed at the beginning of the term of
office. Felts, 650 S.W.2d at 375.
We now apply these principles to the facts of this case. If the General Assembly
had simply amended the pension forfeiture statute during Baumgartner’s last term to
impose a condition requiring forfeiture of his benefits upon conviction of a felony in
federal court, we would apply the Pennsylvania rule to analyze his contention that the
modification unconstitutionally impaired his contract with the state. However, that is not
what happened. The 2006 amendment, by itself, did not change the terms or conditions
of Baumgartner’s existing retirement plan. Rather, the amendment provided that each
time someone is elected to public office, then “as a condition of such election,” that
person will be “deemed to consent and agree”6 to forfeiture of TCRS retirement benefits
if convicted of a felony arising out of his or her official capacity constituting malfeasance
in office. Tenn. Code Ann. § 8-35-124(a)(3). If Baumgartner had chosen not to seek re-
election after the effective date of the amendment adding subsection (a)(3), his retirement
benefits would have remained subject to subsection (a)(1) of the statute and would not
have been subject to forfeiture based on a conviction in federal court. In other words, the
State of Tennessee did not unilaterally impose a detrimental modification of the terms of
the contract without Baumgartner’s consent. The new forfeiture provision would not
have applied absent his decision to stand for re-election, indicating his consent.
Baumgartner waived his right to have his pension benefits governed by subsection (a)(1)
and impliedly consented to the modification of his contract for his next term by seeking
re-election, as this was “a condition of such election.” Id.
A somewhat analogous pension forfeiture provision was considered by this Court
in Simmons v. Hitt, 546 S.W.2d 587, 591 (Tenn. Ct. App. 1976). In that case, electric
company employees were participants in a pension plan that provided that they would
forfeit their interest in the plan if discharged for dishonesty or disloyalty. Id. at 589. The
6
The same or similar language can be found in other statutes. See, e.g., Tenn. Code Ann. § 8-
37-208 (“Every member shall be deemed to consent and agree to the deductions herein provided as a
condition of membership.”); Hogan v. U.S., 513 F.2d 170, 171, 175 (6th Cir. 1975) (discussing a federal
statute providing that federal employees were “deemed to consent and agree” to deductions from pay for a
retirement fund, which “appear[ed] in form to create an irrebuttable presumption that each employee has
consented to the deductions” and effectively made employee participation “a mandatory condition of
employment”); Miller v. Comm’r of Internal Revenue, 144 F.2d 287, 288-89 (4th Cir. 1944) (considering
a federal act providing that every employee “shall be deemed to consent and agree” to salary deductions
for retirement and concluding that the employee accepted employment subject to the condition that he
was deemed to consent and agree to the deduction).
- 13 -
plan provided that no amendment could reduce the interest of a participant in the plan
without his or her written consent. Id. Despite this provision, the plan was re-written
without the knowledge or consent of the participants to expand the forfeiture provision to
also require the forfeiture of benefits if an employee entered employment in direct
competition with the employer. Id. at 590. Still, the plan provided that no amendment
would operate to deprive any participant of any benefits that vested prior to such
amendment. Id. at 591. This Court emphasized the significance of this provision, noting
that the parties had stipulated that the plaintiff-employees had vested benefits prior to the
amendment and that this section was “conclusive” as to their accrued interests. Id.
We stated that “except for certain other provisions of the Plan noted hereinabove,
and which are referred to hereinafter, we think the provision that an employee who leaves
and goes into direct competition with his employer forfeits his participation in the fund
might be enforced, assuming notice and acceptance of such provision by the employees.”
Id. We explained that “‘[t]he law does not favor forfeitures, and they will be strictly
construed and enforced only within both letter and spirit of law, but they are not illegal
and will generally be enforced unless justice and equity are violated.’” Id. (quoting
Sanders v. Sanders, 288 S.W.2d 473, 479 (Tenn. Ct. App. 1955)). After recognizing the
contractual nature of the rights at issue, the Court went on to say:
We are unable to escape the conclusion that the provision in the plan
that no amendment should reduce the interest of a participant in the trust
property as of the time of the amendment without the written consent of the
participant is a valid provision and that, according to the evidence in this
record, no written consent of the plaintiffs who were under the plan at that
time was obtained and, in fact, no effort was made by the defendants to
advise the employees of this action or to gain their consent.
We are of opinion that the change in the provision of Art. VI. Sec. 1,
from one that provided forfeiture in the event of dishonesty and disloyalty
to one that provided for forfeiture in the event that the employee went into
direct competition with the employer amounted to a reduction of the
interest of the plaintiffs in the trust property and, therefore, without the
consent of the participant, was not enforceable.
....
[O]ne who is employed on terms which include a particular profit
sharing plan has a right to expect that the plan will continue unchanged
until he is notified otherwise. Even though the plan is in fact changed, the
terms of employment, including rights in the profit sharing plan remain
unchanged until the employee is notified and thereby given opportunity to
decline to work on the new terms. If, after notification, the employee
continues to work, this would be an acquiescence i[n] or acceptance of the
amended plan in respect to rights accruing thereafter.
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Id. at 591-92 (emphasis added).
Simmons highlights the contractual nature of the issue before us and reinforces our
conclusion that an employee can acquiesce in and indicate acceptance of terms of an
amended pension plan by continuing to work after notice of the change. We recognize
that the Simmons court limited its discussion to acceptance of a change in terms “in
respect to rights accruing thereafter.” Id. at 592. However, it appears that the Court may
have limited its discussion based on the parties’ stipulation as to their already accrued
interests. See id. at 591. As a matter of consent, if a participant can accept a change in
terms that applies to rights accruing thereafter, that same participant should be permitted
to accept and consent to a change in terms that explicitly applies to all existing benefits.
The 2006 amendment did just that. Subsection 8-35-124(a)(3) unequivocally required
“forfeiture of such person’s retirement benefits from the Tennessee consolidated
retirement system[.]” Baumgartner does not argue that this broad language would not
encompass all benefits or that he was unaware of this change in terms.
Because section 8-35-124(a)(3) relies on the consent of the re-elected judge, it
does not run afoul of Blackwell or the Pennsylvania rule. In fact, our conclusion is
strongly supported by a decision of the Supreme Court of Pennsylvania in a case with
strikingly similar facts and a comparable pension forfeiture provision. In Shiomos v.
Commonwealth, State Employes’ Retirement Board, 626 A.2d 158, 160 (Pa. 1993), the
appellant was a judge who entered judicial office and became a member of the state
employees’ retirement system in 1972. In 1978, a new act was passed, designated as the
Public Employee Pension Forfeiture Act, which provided that public employees who
were convicted of specifically enumerated crimes would forfeit their right to receive
pension benefits. Id. Judge Shiomos acquired the necessary ten years of creditable
service in 1979, so his entitlement to receive retirement benefits vested at that time. Id.
He began another term of office in 1982 and retired in 1984 but continued to serve as a
senior judge. Id. In 1988, Judge Shiomos was convicted of two counts of the federal
offense of extortion, premised on the fact that he extorted approximately $300 from two
different individuals by use of his position as a senior judge. Id. The retirement board
notified him that his pension was forfeited as a result of his conviction in federal court.
Id. Judge Shiomos challenged the decision and asserted that the forfeiture act resulted in
an unconstitutional impairment of his contract. Id. The court considered the fact that
Judge Shiomos assumed a second term of office in 1982 after the effective date of the
statute to be a “pivotal fact” in its decision. Id. at 162. The Court explained:
Admittedly the terms and conditions of Shiomos’ pension contract
were set in 1972 when he first assumed judicial office. Had Shiomos retired
in 1982 without assuming any additional public service his pension contract
would not be subject to the forfeiture provisions of Act 140 . . . . However,
when appellant Shiomos assumed his second term in office in 1982 he did
so fully aware of the existence of Act 140 and its applicability to public
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employees in his position. Section 3 of Act 140 declares: “Each time a
public officer or public employee is elected, appointed, promoted, or
otherwise changes a job classification, there is a termination and renewal of
the contract for purposes of this act.” 43 P.S. § 1313(c). By assuming his
second term in office subsequent to the enactment of Act 140 appellant
became subject to Act 140 and the terms and conditions of Act 140 were
incorporated into his renewed pension contract. . . .
Further, appellant’s argument that only his pension benefits
accumulated after 1982 should be subject to forfeiture is rejected in
accordance with section 3 of Act 140:
Notwithstanding any other provision of law, no public official
or public employee nor any beneficiary designated by such
public official or public employee shall be entitled to receive
any retirement or other benefit or payment of any kind except
a return of the contribution paid into any pension fund
without interest, if such public official or public employee is
convicted or pleads guilty or no defense to any crime related
to public office or public employment.
43 P.S. § 1313(a); P.L. 140, § 3 (emphasis added).
As a reasonable condition of public employment, the employee
reaffirms his commitment to perform his job with honesty and integrity
every time he or she begins a new term of office, receives a promotion or
appointment, or experiences a change in job classification; regardless of
whether such public employment is on a full or part-time basis. With each
appointment there is a renewal of the agreement to perform the term of
public service without violating Act 140; an agreement which encompasses
all that has gone before. Thus, whether or not a public employee’s right to
receive retirement benefits has vested, or he or she is in actual receipt of
benefits, all previous accumulated rights to receive such benefits are subject
to forfeiture by and through the “renewed” agreement which is formed each
time a person chooses to become a “public official” as defined by § 1312.
It is neither unconscionable nor unreasonable to require honesty and
integrity during an employee’s tenure in public service. Nor is it violative
of the Pennsylvania Constitution to provide that at every new term of
employment a public official or employee renews and amends his or her
pension contract to include the new public service and to place at risk that
which may have already been earned. Such is the nature of the public
employment agreement.
- 16 -
Id. at 162-63 (underlining added, italics in original).
The reasoning of Shiomos is persuasive here—as an elected official, when
Baumgartner began another term of office in 2006, the terms and conditions of subsection
(a)(3) were incorporated into his amended pension contract. On appeal, Baumgartner
argues that Shiomos and the Pennsylvania pension forfeiture statute are distinguishable
because the Pennsylvania act specifically stated, “Each time a public officer or public
employee is elected, appointed, promoted, or otherwise changes a job classification, there
is a termination and renewal of the contract for purposes of this act.” Id. at 162. Section
8-35-124(a)(3) does not contain this precise language. However, it does not apply to all
public officers or public employees, like the Pennsylvania law, nor does it apply to
promotions or changes in job classifications. Instead, subsection (a)(3) is limited to
persons elected to public office. It provides that “each time a person is elected . . . such
person shall, as a condition of such election, be deemed to consent and agree to the
forfeiture of such person’s retirement benefits” if convicted of a felony arising out of that
person’s official capacity constituting malfeasance in office. Tenn. Code Ann. § 8-35-
124(a)(3) (emphasis added). In our view, the “termination and renewal of the contract”
language is not necessary given the fact that subsection (a)(3) only applies each time a
person is elected and thereby beginning a term of office. As our Supreme Court
explained in Miles when discussing the active judges, for each new term of office, “the
State of Tennessee enter[s] into a contract with [the judge] for a period of eight (8)
years,” and for its terms, we look to “the promises of the State, as set forth in the
statutory retirement scheme in existence . . . when they commence[] the eight (8) year
term of their employment.” 548 S.W.2d at 306 (emphasis added); see also Felts, 650
S.W.2d at 375. And in any event, regardless of Baumgartner’s argument regarding the
renewal of the existing contract, he could consent to a change in its terms. The lack of
the specific language in the Pennsylvania statute is not fatal to the validity of subsection
(a)(3), as Baumgartner suggests.7
7
Prior to the passage of the 2006 amendment adding subsection (a)(3), the Tennessee Attorney
General was asked to opine as to the constitutionality of a bill patterned after the Pennsylvania forfeiture
statute, pursuant to which public employees and public officials would be deemed, upon re-election,
promotion, appointment or change in classification to consent to forfeiture of their public retirement
benefits if convicted of a felony arising out of their public employment. Tenn. Op. Att’y Gen. No. 05-152
(Oct. 4, 2005). The Attorney General opined that such a bill would be constitutional. However, in the
course of its opinion, the Attorney General placed great weight on the language of the Pennsylvania law
providing that “[e]ach time a public officer or public employee is elected, appointed, promoted, or
otherwise changes a job classification, there is a termination and renewal of the contract for purposes of
this act.” Id. (quoting 43 Pa. Cons. Stat. Ann. § 1313(c)) (emphasis added). The Attorney General
suggested that “the existence of a provision in the law terminating and then re-instituting membership
makes a crucial difference in applying a pension plan modification to an employee who was already a
member of T.C.R.S. when that modification was adopted” and suggested that the proposed bill would
need to “make this necessary change in membership rights.” Id. Subsection (a)(3) as adopted did not
contain any language altering membership rights, but again, it only applies to elected officials beginning a
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For the same reasons, we reject Baumgartner’s assertion that the 2006 amendment
violates the constitutional prohibition against retrospective laws impairing vested rights.
The constitutional guarantee against retrospective laws prohibits retrospective substantive
legal changes that “‘take away or impair vested rights acquired under existing laws or
create a new obligation, impose a new duty, or attach a new disability in respect of
transactions or considerations already passed.’” Estate of Bell v. Shelby Cty. Health Care
Corp., 318 S.W.3d 823, 829 (Tenn. 2010) (quoting Doe v. Sundquist, 2 S.W.3d 919, 923
(Tenn. 1999)). Baumgartner had a contract with the State of Tennessee for a period of
eight years, subject to the terms of the retirement scheme in effect when he commenced
his term of office. He consented to application of subsection (a)(3) by seeking re-election
in 2006, and his contract that began in 2006 incorporated the terms of subsection (a)(3).
The State of Tennessee did not unilaterally impose an impermissible retrospective law, as
Baumgartner was not forced to accept or consent to application of this provision.
Next, Baumgartner argues that two general statutes were part of his original
pension contract and prohibit any impairment of or modification to his retirement
benefits. The first statute is Tennessee Code Annotated section 8-34-204, which was
included in the original act creating the Tennessee Consolidated Retirement System in
1972. See 1972 Tenn. Pub. Acts, c. 814, § 17. It provides:
Every provision of chapters 34-37 of this title shall be subject to
amendment or repeal by any session of the general assembly; provided, that
no such amendment or repeal shall diminish or annul, in any respect, any
right acquired by a member or beneficiary under chapters 34-37 of this title.
Tenn. Code Ann. § 8-34-204. Broadly reading this statute, Baumgartner argues that it
prevented any legislative changes from altering “any of his rights” once he completed
eight years of creditable service. From our research, it appears that the only Tennessee
case discussing this statute in depth is Blackwell.8
As we mentioned before, in Blackwell, the employees argued, like Baumgartner,
that “no detrimental change whatever . . . could legally be made” to their plan without
unanimous consent of all affected beneficiaries, “regardless of how reasonable or
necessary for the financial integrity of the plan.” 622 S.W.2d at 539. Along these lines,
the court of appeals held that the employees at issue had a vested right to earn benefits
new term of office, not all public employees and public officials, as originally contemplated. Thus, we do
not consider a provision terminating and renewing membership rights as necessary given the more limited
nature of the amendment.
8
The Miles case contains some discussion of the statutory history in its recitation of the decision
of the chancellor. 548 S.W.2d at 301. The predecessor to this statute was also cited by the plaintiffs in
Bates v. Tennessee Consolidated Retirement System ex rel. Ashley, 563 S.W.2d 192, 196 (Tenn. Ct. App.
1977), but the court deemed the statute inapplicable because the plaintiffs had no legal or vested rights to
be preserved by the statute.
- 18 -
under “the plan as it existed and under the conditions of the plan as it existed” when they
entered the service of the county and accepted the plan. Id. at 537. Applying strict
principles of contract law, the court of appeals held that the employing government
“could not validly enact a modification or change detrimental to any employee.” Id. The
supreme court disagreed and held that “necessary changes in public employee pension
plans may be made by the governing body to the extent and under the conditions
hereinafter discussed.” Id. Notably, the supreme court discussed the very statute on
which Baumgartner relies in reaching this conclusion:
While we agree with the implicit holding of the courts below that a
public employer may from time to time offer additional benefits which
employees may accept expressly or by acquiescence, nevertheless we are
not convinced that a plan is “frozen” against detrimental changes or
modifications the moment an employee begins to participate in it, where
such changes are necessary to preserve the fiscal and actuarial integrity of
the plan as a whole. It seems to us that public policy demands that there be
a right on the part of the public employer to make reasonable modifications
in an existing plan if necessary to create or safeguard actuarial stability,
provided that no then accrued or vested rights of members or beneficiaries
are thereby impaired.
This, in our opinion, is the announced public policy of this state
through several legislative enactments. T.C.A. [§] 8-34-204, dealing with
the Tennessee Consolidated Retirement System, provides as follows:
“Every provision of chapters 34 through 37 of this title shall
be subject to amendment or repeal by any session of the
general assembly, provided that no such amendment or repeal
shall diminish or annul, in any respect, any right acquired by
a member or beneficiary under the provisions of chapters 34
through 37 of this title.”
....
. . . It seems to us inescapable from these legislative provisions that the
General Assembly considers that reasonable modifications may be made in
public pension plans in order to keep them actuarially sound.
Id. at 541-42. The supreme court was quick to note that the Shelby County pension plan
at issue was not part of the TCRS; however, the employees in Blackwell relied on a
private act stating that the provisions of the retirement system would “constitute vested
interests between the members [] and the County of Shelby.” Id. at 542. Despite this
broad language, the supreme court concluded that the term “vested interests” in the
private act meant that “employees had interests in the assets of the retirement system, but
not, as indicated by the Court of Appeals, in the precise clauses and terms of the plan as it
existed at the inception of their employment, so as to render the same immutable and
- 19 -
beyond necessary amendment by the governing body.” Id. (footnote omitted). Again,
the supreme court went on to adopt the Pennsylvania rule, “which permits reasonable
modifications when necessary to protect or enhance actuarial soundness of the plan,
provided that no such modification can adversely affect an employee who has complied
with all conditions necessary to be eligible for a retirement allowance.” Id. at 543. In
sum, the Blackwell Court acknowledged and discussed the very statute on which
Baumgartner relies, and despite its seemingly broad language stating that no amendment
could “diminish or annul, in any respect, any right acquired by a member,” Tenn. Code
Ann. § 8-34-204, the supreme court still held that “necessary changes in public employee
pension plans may be made by the governing body to the extent and under the conditions
herein[] discussed.” Blackwell, 622 S.W.2d at 537.
Because we have already concluded that applying subsection (a)(3) to
Baumgartner based upon his consent does not run afoul of the Pennsylvania rule set forth
in Blackwell, we likewise conclude that it is not precluded by Tennessee Code Annotated
section 8-34-204. Baumgartner’s narrow interpretation of the statute is akin to the
approach of the Blackwell Court of Appeals, which the Tennessee Supreme Court
expressly rejected.
The second general statute on which Baumgartner relies is Tennessee Code
Annotated section 8-35-114, which provides:
The classification and membership rights of any member or prior class
member of the retirement system shall continue in force without
interruption and remain applicable as long as such member remains in a
position for which such classification originated.
Again, we reject Baumgartner’s suggestion that this statute had the effect of “freezing”
all laws governing the TCRS and/or his pension plan from the moment he assumed the
position of a trial judge. Pursuant to Tennessee Code Annotated section 8-35-105,
entitled “Member classifications,” the board of trustees must “classify” each person who
becomes a member in one of the following groups:
(1) Group 1. Teachers and general employees;
(2) Group 2. State police officers, wildlife officers, game and fish officers
so classified prior to April 1, 1974, firefighters and police officers;
(3) Group 3. State judges, county judges, county officials, attorneys
general, and commissioners; or
(4) Group 4. State judges entering service on or after September 1, 1990,
state judges transferring membership under chapter 34, part 7, any attorney
general and reporter who meets the requirements of § 8-34-623(b) and
enters service on or after July 1, 2005, and any attorney general and
reporter who meets the requirements of § 8-34-623(b) and transfers
- 20 -
membership under chapter 34, part 7.
Beneath the listing of these groups, subsection (d) of this same “Member classifications”
statute provides:
(d) The classification and membership rights of any county judge9 or
county official who is currently a member or a prior class member of the
retirement system shall continue in force without interruption and remain
applicable when such member remains in the county office for which such
classification eligibility originated, notwithstanding any change in the title
of such office as a result of any act to implement the amendments of the
Constitution of Tennessee, Article VII, § 1, ratified on March 7, 1978.
Tenn. Code Ann. § 8-35-105(d). Tennessee Code Annotated section 8-35-114, which
Baumgartner cites, tracks the language used in subsection (d) but is not limited to county
judges or officials: “The classification and membership rights of any member or prior
class member of the retirement system shall continue in force without interruption and
remain applicable as long as such member remains in a position for which such
classification originated.” Read in context, this statute simply provides that a member’s
“classification and membership rights” will continue in force without interruption so long
as the member “remains in a position for which such classification originated.” Id. It is
intended to protect the employee’s classification and the membership rights that result
from that classification. It does not mean that all statutes governing the TCRS were
somehow “membership rights”10 that had to remain the same or “continue in force” as
9
The term “county judge” is defined as:
any person who is, or when such office existed was, a judge of a general sessions court,
trial justice court, county chair, county judge, probate judge, or judge of a juvenile and/or
domestic relations court, and whose compensation for such judicial service is paid wholly
by a county of the state, or any person who is a county attorney who receives regular
monthly or quarterly compensation from a county of the state, or any county manager or
county administrator who receives regular monthly or quarterly compensation from a
county of the state; provided, that no county manager or county administrator shall be
eligible for membership if a county judge, chair of the quarterly county court or county
mayor from that county is a member[.]
Tenn. Code Ann. § 8-34-101(8). In contrast, “state judge” is defined as “any person in office as a judge
of a court of record in this state, whose salary for the judge’s judicial position has been paid during the
period of the judge’s service wholly from the treasury of the state, including the administrative director of
the courts.” Id. at (44). For state judges, a separate statute provides, “Nothing in this section or § 8-34-
703 or §§ 8-34-706--8-34-713 shall be construed to change the retirement classification or remove from
the system of which such judge is a member any state judge who continues in a state judicial office.”
Tenn. Code Ann. § 8-34-704.
10
Although not determinative for purposes of our analysis, we also recognize the dubious nature
of the “right” Baumgartner is claiming here. In effect, Baumgartner is attempting to claim an irrevocable
- 21 -
long as Baumgartner remained in the same position of a trial judge, for the same reasons
set forth in Blackwell. The protections of this statute simply do not extend to the lengths
urged by Baumgartner.
For all of these reasons, we reject Baumgartner’s argument that TCRS’s
application of subsection (a)(3) to require forfeiture of his retirement benefits was an
unconstitutional impairment of contract or impermissible retrospective law.
B. Excessive Fine
Next, Baumgartner argues that requiring forfeiture of his pension benefits pursuant
to subsection (a)(3) would constitute an unconstitutional excessive fine. See U.S. Const.
amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”); Tenn. Const. art. I, § 16 (“[E]xcessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”).11
Baumgartner notes that he served as a trial judge and accumulated over 22 years of
creditable service, while the events that led to his convictions occurred in the last 13
months of his career. He claims that it is unconstitutionally excessive to require
forfeiture of nearly $4,900 in monthly pension benefits based on these felony convictions.
The Eighth Amendment was “intended to prevent the government from abusing its
power to punish[.]” Austin v. U.S., 509 U.S. 602, 607 (1993). Accordingly, “‘the
Excessive Fines Clause was intended to limit only those fines directly imposed by, and
payable to, the government.’” Id. (quoting Browning–Ferris Indus. of Vt., Inc. v. Kelco
“membership right” to commit a felony so long as he was convicted in federal court and not state court.
The Florida District Court of Appeals rejected a similar argument in Shields v. Smith, 404 So. 2d 1106,
1112 (Fla. Dist. Ct. App. 1981), where an employee argued that once he completed ten years of creditable
service, entitling him to retirement benefits, “his rights vested in the sense of freezing the list of forfeiture
crimes then existing” in the forfeiture statute, such that additional felonies could not be added later. The
Court rejected this “ingenious argument,” stating, “Whatever vested rights Shields may have had
protecting him from alteration of benefits, we cannot conceive that his vested rights included the right to
commit, with impunity, any but a particular list of felonies.” Id. (citation omitted).
11
“The framers of the Tennessee Constitution placed an identical prohibition against excessive
fines in the Declaration of Rights.” Barrett v. Tenn. Occupational Safety & Health Review Comm'n, 284
S.W.3d 784, 787 (Tenn. 2009). The Tennessee Supreme Court has held that the Excessive Fines Clause
of Article I, § 16 of the Tennessee Constitution is “coextensive with its federal counterpart” in the Eighth
Amendment to the United States Constitution. See Stuart v. State Dep’t of Safety, 963 S.W.2d 28, 34
(Tenn. 1998).
We note that the Supreme Court of Indiana, last year, ruled that the Excessive Fines Clause of the
Eighth Amendment does not apply to the states. State v. Timbs, 84 N.E.3d 1179, 1182 (Ind. 2017), cert.
granted, 138 S. Ct. 2650 (2018) (“The United States Supreme Court has never enforced the Excessive
Fines Clause against the States, and we opt not to do so here.”) The United States Supreme Court
granted certiorari in that case, and it remains pending on appeal. The Tennessee Supreme Court has
applied the Excessive Fines Clause of the Eighth Amendment to challenged actions of the State of
Tennessee. See Stuart, 963 S.W.2d at 34. Following its lead, we will do the same.
- 22 -
Disposal, Inc., 492 U.S. 257, 268 (1989)). It “is implicated only in cases initiated by the
government, either in the criminal process or other direct actions to inflict punishment.”
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 900 (Tenn. 1992).
“[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.’” U.S. v. Bajakajian,
524 U.S. 321, 327-28 (1998) (quoting Browning-Ferris, 492 U.S. at 265). Therefore, the
Excessive Fines Clause “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). Although some other provisions of the Bill of Rights are expressly limited to
criminal cases, “[t]he text of the Eighth Amendment includes no similar limitation.”
Austin, 509 U.S. at 608. Accordingly, the question is not whether the sanction is civil or
criminal, “but rather whether it is punishment.” Id. at 610. For instance, in Austin, the
United States Supreme Court held that the Excessive Fines Clause applied to civil in rem
forfeitures of property (in that case, a mobile home and auto body shop) under federal
statutes in connection with the appellant’s violation of drug laws. Id. at 604-05. The
Supreme Court concluded that such forfeiture under the federal statutes constituted
“payment to a sovereign as punishment for some offense,” and as such, the forfeiture was
subject to the limitations of the Excessive Fines Clause. Id. at 622.
In Stuart, the Tennessee Supreme Court acknowledged Austin and likewise
applied the Excessive Fines Clause to civil in rem forfeitures of property in connection
with an illegal drug investigation and seizure. 963 S.W.2d at 34. “As a threshold
matter,” however, the Tennessee Supreme Court concluded that not all of the forfeited
property at issue was “subject to an excessive fines analysis.” Id. at 34-35. The court
found that the forfeiture of the proceeds of the illegal drug transactions (including
currency and sports memorabilia) was remedial, “not punitive because the claimant was
never legally entitled to them,” and therefore, the forfeited drug proceeds were “not
subject to an excessive fines analysis.” Id.
Several courts in other jurisdictions have considered Excessive Fine arguments in
the context of cases involving pension forfeitures. As a threshold matter, most of these
courts have held that pension forfeitures are not subject to an excessive fines analysis. In
Hopkins v. Oklahoma Public Employees Retirement System, 150 F.3d 1155, 1157 (10th
Cir. 1998), a retired state employee was convicted in federal court of accepting a bribe in
connection with his employment before he retired. The employee had been credited with
thirty-two years of service and was drawing a monthly pension of $4,293.18, but
following his conviction, he was notified that his pension would be reduced by 70% in
accordance with Oklahoma’s pension forfeiture statute. Id. at 1157-58. The employee
estimated that this reduction resulted in an estimated loss to him and his wife of
$706,452.85. Id. at 1158. He challenged his pension forfeiture in federal court, alleging
that Oklahoma’s pension forfeiture statute imposed an excessive fine on him in violation
of the Eighth Amendment. Id. The Tenth Circuit analyzed the issue as follows:
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The Supreme Court has explained that the Excessive Fines Clause “was
intended to limit only those fines directly imposed by, and payable to, the
government.” Browning-Ferris[,] 492 U.S. [at] 268[.] Furthermore, at the
time of the drafting and ratification of the Eighth Amendment, the
understanding of the term “fine” included “a payment to a sovereign as
punishment for some offense.” Id. at 265, 109 S. Ct. 2909. 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. Cf. Austin[,] 509 U.S. [at]
604 [] (applying the Excessive Fines Clause to in rem forfeitures of a drug
defendant’s mobile home and business).
In this case, therefore, we must decide the threshold question of
whether the forfeiture of Hopkins’ pension amounted to a payment of
“property” by him to the state of Oklahoma. The district court ruled that
under Oklahoma law, Hopkins had no “property” right in his pension
benefits—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. See Woods v.
City of Lawton, 845 P.2d 880, 882-83 (Okla. 1992); see also Okla. Stat. tit.
51, § 24.1(A) (forfeiting a public employee’s pension benefit upon the
employee’s felony conviction for “a felony or any offense involving a
violation of his official oath”). When Hopkins accepted a bribe in
connection with a matter then being considered by the Corporation
Commission, he breached his duty of honorable service. See Okla. Const.
art. 9, § 17 (specifying that the oath of office for each commissioner must
include a declaration that the commission has no financial interest in any
matters that come before the Commission). As a result, under Oklahoma
law, Hopkins had no “vested right” in his pension benefits. See Baker v.
Oklahoma Firefighters Pension & Retirement Sys., 718 P.2d 348, 350–51
(Okla. 1986) (“[U]nder Oklahoma law, the right to a pension would vest, or
become absolute, upon the pension recipient’s becoming eligible for
payment of the pension.... [T]he right of a claimant to a pension is
controlled by the terms of the statute in effect when the right to a pension
vests and ... vesting occurs as of the date of retirement.”); see also Board of
Trustees of the Police Pension & Retirement Sys. v. Weed, 719 P.2d 1276,
1278 (Okla. 1986) (noting the legal significance of a pension forfeiture
statute that is tied to dishonorable conduct during the employee’s term in
office) (citing Kerner v. State Employee's Retirement Sys., 72 Ill. 2d 507, 21
Ill. Dec. 879, 382 N.E.2d 243, 245–46 (1978)).
We agree with the district court’s interpretation of Oklahoma law,
and thus, we concur that Hopkins had no property right in his pension
benefits. As a result, the forfeiture of those benefits does not constitute a
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“payment” to the state of Oklahoma, and this forfeiture does not violate the
Excessive Fines Clause of the Eighth Amendment.
Id. at 1162.
The Florida District Court of Appeals applied slightly different reasoning in
Busbee v. State, Division of Retirement, 685 So. 2d 914, 918 (Fla. Dist. Ct. App. 1996),
where a public employee argued that the forfeiture of his retirement benefits was
unconstitutional as an excessive fine because the amount of his pension benefits based on
31 years of service was much greater than the amount of the bribe he accepted. The court
noted that the employee’s pension obligation was a matter of contract and that the terms
of that contract were governed by statute. Id. at 916. Under the governing statute, a
conviction for bribery in connection with one’s employment would result in forfeiture of
pension rights. Id. “Therefore,” the court concluded, “the forfeiture provision was a part
of the pension contract between the appellant and the state, and to the extent that his
rights vested after 10 years of service, they vested subject to this provision.” Id. The
court explained that the Excessive Fines clause is only implicated if a “fine” is
“punishment.” Id. at 917. The court concluded that it was not necessary to analyze the
proportionality of the harm to the amount of pension forfeited “because this is not a
punishment for Mr. Busbee’s crime.” Id. at 918. Instead, the court continued, “[t]his
case involves a straightforward question of contract law and the amount of the pension
which has been forfeited is irrelevant under the terms of the contract.” Id.
Another section of the Florida District Court of Appeals followed and expanded
on Busbee in Childers v. State, Department of Management Services, Division of
Retirement, 989 So. 2d 716 (Fla. Dist. Ct. App. 2008), wherein the Court succinctly
explained:
Forfeiture of the employee’s retirement benefits is not a fine because the
employee has not been ordered to pay anything to the government. Unlike
a criminal forfeiture statute, section 112.3173(3) merely relieves the State
of its duty to pay retirement benefits. . . . .
Here, the State entered into a contract with the employee, promising
to pay him benefits upon his retirement. That contract included a condition
precedent: the employee must refrain from committing specified offenses
prior to retirement. The non-occurrence of that condition foreclosed the
employee’s right to performance. It is as direct and to the point as that.
There simply is no violation of the Excessive Fines Clause. “This is not a
prosecution under Florida criminal law for accepting a bribe, and it is not a
punishment for accepting a bribe. This is an action to enforce the terms of
the pension contract and nothing more.” Busbee, 685 So. 2d at 917.
Id. at 719.
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Hopkins and Busbee were both cited and followed by the court in Hames v. City of
Miami, 479 F. Supp. 2d 1276, 1287-88 (S.D. Fla. 2007), aff’d as modified sub nom. 281
F. App’x 853 (11th Cir. 2008),12 where another employee claimed that the forfeiture of
his pension amounted to an excessive fine in violation of the Eighth Amendment. “In the
pension context,” the district court explained, “courts have found that an employee has no
property interest in his or her pension plan for purposes of the Eighth Amendment, where
the ‘right to [the] pension always was contingent on maintaining honorable service during
[plaintiff’s] tenure in office.’” Id. (quoting Hopkins, 150 F.3d at 1162). In other words,
the employee has no “vested property interest in the pension” for purposes of the Eighth
Amendment where his interest was “always subject to the statutory forfeiture
limitations.” Id. at 1288. According to the court, “no matter when Plaintiff’s pension
‘vested,’ [under Florida law,] the Eighth Amendment does not apply because it vested
subject to the forfeiture provisions, and is therefore not Plaintiff’s property for purposes
of the Eighth Amendment.” Id.
Finally, the Commonwealth Court of Pennsylvania reached the same result in
Scarantino v. Public School Employees' Retirement Board, 68 A.3d 375, 384-85 (Pa.
Commw. Ct. 2013).13 The appellant argued that the forfeiture of $1.5 million in pension
benefits constituted an excessive fine. Id. at 384. The court explained that the Eighth
Amendment is only implicated if a fine is a punishment for an offense, but yet the
relationship between the employee and the retirement system is contractual in nature. Id.
at 384-85. The forfeiture statute provided for mandatory forfeiture upon conviction of a
crime related to public office, and such conviction was a breach of the public employee’s
contract with his employer. Id. at 385. The court reasoned that a “condition precedent
for eligibility to receive pension benefits” was that the employee could not have been
convicted of one of the enumerated crimes. Id. Under these circumstances, pension
forfeiture “was not a fine imposed for conviction of his offense” and was “not a punitive
forfeiture” requiring application of the Excessive Fines analysis. Id. Rather, the
forfeiture “resulted from a breach of the contract.” Id. The Pennsylvania court reached
the same result in Miller v. State Employees Retirement System, 137 A.3d 674, 681 (Pa.
Commw. Ct.) appeal denied 160 A.3d 758 (Pa. 2016) (“[T]he forfeiture was a breach of
contract. Accordingly, the Excessive Fines Clause of the Eighth Amendment is not
implicated.”) (quotation omitted).
Admittedly, the Supreme Judicial Court of Massachusetts disagreed with the
reasoning of these cases in Public Employee Retirement Administration Commission v.
Bettencourt, 47 N.E.3d 667 (Mass. 2016). The court considered “the threshold question
[of] whether the forfeiture of a public employee’s pension . . . is a ‘fine’ under the Eighth
Amendment” and applied the same definition of a “fine” for purposes of the analysis – “a
12
The appellant in Hames essentially abandoned the Eighth Amendment argument in his appeal
to the Eleventh Circuit, so the Court declined to consider it. 281 F. App’x 853.
13
The Commonwealth Court of Pennsylvania is an intermediate appellate court.
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payment to a sovereign as punishment for some offense.” Id. at 672-73. The court also
applied the same initial approach as that taken by the Tenth Circuit in Hopkins –
“‘Implicit in [the Supreme Court’s] 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 employee].’” Id. at 673 (quoting
Hopkins, 150 F.3d at 1162). Stated differently, the court considered whether the
forfeiture operated to extract payments from the employee and transfer them to the
government. Id.
The court rejected the notion that the employee at issue had only a future interest
in receiving retirement payments that was wholly contingent on not being convicted of a
crime. Id. at 674. The court explained that the Massachusetts retirement system was a
contributory retirement system, and under existing Massachusetts law, there could be “no
change to the system” to deprive members of benefits “as long as they have paid the
required contributions.”14 Id. at 674-75. 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. At the
point when the employee at issue became a contributing member of the retirement system
with deductions taken from his salary, “he acquired a protected interest in the retirement
allowance provided by the retirement system that amounted to a property interest.”15 Id.
14
The court explained the details of the system as follows:
Under the Commonwealth’s public employee retirement system, the employee makes
contributions to the system during the period of his or her active employment through
salary deductions. When the employee retires for superannuation (assuming no
beneficiaries), he or she retires with an allowance that is comprised of an “annuity share”
actuarially determined on the basis of his or her accumulated deductions, and a “pension
share” that the governmental unit is required to pay and that represents “the usually
considerable difference needed to make good the normal yearly allowance paid to the
[employee] until his death.” Opinion of the Justices, 364 Mass. at 854, 303 N.E.2d 320.
The pension share that the employee is entitled to receive from the government during
retirement is money, i.e., property. If the employee is obligated to forfeit his or her
retirement allowance pursuant to § 15(4), the pension share reverts to the government;
put another way, by operation of § 15(4), the pension share is effectively transferred from
the employee to the government. We consider this effective transfer of property to qualify
as an extraction of payment from the employee to the sovereign[.]
Id. at 676.
15
The Massachusetts court in Bettencourt “emphasize[d] that the Legislature properly may
provide for such forfeitures,” 47 N.E.3d at 683, and it “did not announce a categorical rule declaring all
forfeitures of retirement benefits excessive.” U.S. v. Woodward, No. CR 95-10234-DPW, 2017 WL
4684000, at *5 n.2 (D. Mass. Oct. 18, 2017). Instead, Massachusetts courts engage in a fact-based
inquiry, examining the circumstances of each conviction to determine whether complete forfeiture is
proportional to the underlying offense. Id. See, e.g., State Bd. of Retirement v. Finneran, 71 N.E.3d 1190
(Mass. 2017) (forfeiture of $433,400 not excessive when employee committed felony of obstruction of
justice carrying maximum penalty of ten years’ imprisonment and $250,000 fine); Bettencourt, 47 N.E.3d
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at 676-77. According to the court, the fact that benefits could be subject to forfeiture for
misconduct did not change the character of this property right. Id. at 676. In sum, the
court reasoned that the Massachusetts forfeiture statute “effects what is in substance an
extraction of payments from the employee to the Commonwealth” and “is a fine within
the meaning of the excessive fines clause of the Eighth Amendment.” Id. at 677.
Under Tennessee law, as set forth in our discussion of Blackwell and related cases,
employees’ contractual pension rights are not like those recognized in Massachusetts.
Baumgartner did not acquire a protected property interest in his retirement allowance
from the moment he became a member of the retirement system, nor did he contribute
any deductions from his salary, so far as the record before us shows. In any event,
subsection (b)(2) of section 8-35-124 provides that the employee or official who forfeits
retirement benefits will “[r]eceive a refund of the accumulated contributions credited to
the employee’s or official’s account, if any.”
Having reviewed the decisions of these courts, we are persuaded by the reasoning
of the majority approach. The Excessive Fines Clause “applies only when the payment to
the government involves turning over ‘property’ of some kind that once belonged to the
defendant.” Hopkins, 150 F.3d at 1162. Baumgartner had no absolute property right to
receipt of pension benefits, within the meaning of the Excessive Fines analysis, that was
not subject to the forfeiture provision contained in Tennessee Code Annotated section 8-
35-124(a)(3). His ability to receive benefits was not without conditions; it was subject to
the contingency that benefits would be terminated upon conviction of a felony arising out
of his official capacity constituting malfeasance in office. Upon such conviction, the
termination of pension benefits was a matter of contract and did not constitute a “fine” in
the sense of extracting a “payment” to the sovereign as punishment for his offense.
Baumgartner was not ordered to pay anything (in cash or in kind) to the government; the
State was merely relieved of its contractual duty to pay retirement benefits. See Childers,
989 So. 2d at 719. Therefore, the pension forfeiture was not subject to an Excessive
Fines analysis.
C. Date of Suspension of Benefits
Finally, Baumgartner argues that TCRS erred in suspending his benefits based on
the date when the jury returned its guilty verdict in November 2012 rather than the date
of the district court’s judgment of conviction in April 2013, improperly depriving him of
benefits during those five months. Regarding this issue, Tennessee Code Annotated
section 8-35-124 provides:
(b) Upon initial conviction, or upon a plea of guilty or nolo contendere, any
at 667 (forfeiture of $659,000 constitutionally excessive for unauthorized access to state computer system
and invasion of privacy).
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person subject to this section shall:
(1) Have the employee's or official’s benefit stopped immediately, if the
employee or official is receiving a benefit; and
(2) Receive a refund of the accumulated contributions credited to the
employee’s or official’s account, if any, less any benefits received unless
the person elected to have a monthly retirement allowance paid upon such
person’s death in accordance with subsection (f).
(c) The employing agency is responsible for immediately notifying the
administrator of the retirement system of the conviction of any person
subject to this section.
(d) In the event the conviction of such person is later overturned in any
court and such person is acquitted, or is granted a full pardon, the person
shall be restored to all rights, privileges and benefits as if the conviction
had never occurred.
Tenn. Code Ann. § 8-35-124. Baumgartner disputes the meaning of “initial conviction.”
Black’s Law Dictionary defines “conviction” as follows:
1. The act or process of judicially finding someone guilty of a crime; the
state of having been proved guilty. 2. The judgment (as by a jury verdict)
that a person is guilty of a crime.
Black’s Law Dictionary (10th ed. 2014). “[W]hat is meant by ‘conviction’ actually
depends upon the context in which it is being used.” State v. Vasser, 870 S.W.2d 543,
546 (Tenn. Crim. App. 1993) (citing 21A Am.Jur.2d Criminal Law § 1023 (1981)).
“Tennessee, like most jurisdictions, recognizes two distinct meanings of the term
‘conviction.’” Rodriguez v. State, 437 S.W.3d 450, 453 (Tenn. 2014) (citing Vasser, 870
S.W.2d at 545).
According to our supreme court:
A conviction in the “general sense” is the establishment of guilt by a guilty
plea or a verdict independent of sentence and judgment. Vasser, 870
S.W.2d at 546; see also Daughenbaugh v. State, 805 N.W.2d 591, 597
(Iowa 2011) (defining “conviction” in the “general or popular sense” as
“the establishment of guilt independent of judgment and sentence”). In
contrast, a conviction in its “technical” sense requires a formal adjudication
by a court and the entry of a judgment of conviction. Vasser, 870 S.W.2d
at 545-46; see also Daughenbaugh, 805 N.W.2d at 597 (“[W]hen the term
‘conviction’ is used in its technical [or] legal sense, it requires a formal
adjudication by the court and the formal entry of a judgment of
conviction.”); Vasquez v. Courtney, 272 Or. 477, 537 P.2d 536, 537 (1975)
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(“The ... more technical meaning [of ‘conviction’] refers to the final
judgment entered on a plea or verdict of guilt.”). The applicable meaning
of conviction depends on the context or procedural setting in which the
term is used. Vasser, 870 S.W.2d at 546.
Id. at 453-54. With “technical correctness,” then, it is appropriate to say that “a
conviction involves, not only a verdict, but also a sentence passed by the court[.]”
Spencer v. State, 140 S.W. 597, 598-99 (Tenn. 1911). At the same time, however, “[i]n
many of our statutes the term ‘conviction’ is used to signify the jury’s verdict of guilty,
and as something precedent to, and distinct from, judgment or sentence.” State v.
Garrett, 188 S.W. 58, 60 (Tenn. 1916). See e.g., Tenn. Code Ann. § 40-20-111(a)
(“When any person has been convicted of two (2) or more offenses, judgment shall be
rendered on each conviction after the first . . . .”); Tenn. Code Ann. § 40-20-112 (“Upon
conviction for any felony, it shall be the judgment of the court that the defendant be
infamous . . . .”); Tenn. Code Ann. § 40-20-116(a) (“Whenever a felon is convicted of
stealing or feloniously taking or receiving property, or defrauding another thereof, the
jury shall ascertain the value of the property . . . .”). As these statutes illustrate, “the
legislature often uses the word ‘conviction’ to denote a stage of the process occurring in
the trial court after which such further action by the trial court must be taken or may be
authorized.” Vasser, 870 S.W.2d at 546. Accordingly, “‘when the word ‘conviction’ is
used in connection with the successive steps in a criminal case, the reference is to the
verdict.’” Id. (quoting 21A Am.Jur.2d Criminal Law § 1024 at 569).
Here, the relevant statute provides that an official who is receiving benefits shall
have his or her benefits “stopped immediately” “[u]pon initial conviction, or upon a plea
of guilty or nolo contendere.” Tenn. Code Ann. § 8-35-124(b). This language indicates
that the legislature was referring to the initial stage of the process occurring in the trial
court regarding the finding of guilt, not the final entry of a judgment of conviction. We
reject Baumgartner’s assertion that TCRS should have suspended his benefits on the date
of sentencing rather than after the guilty verdict.
V. CONCLUSION
For the aforementioned reasons, the decision of the chancery court is hereby
affirmed and remanded for further proceedings. Costs of this appeal are taxed to the
appellant, Vicki Baumgartner, for which execution may issue if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
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