Hopkins v. Oklahoma Public Employees Retirement System

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 30 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
FRANCES L. HOPKINS, personal
representative of the estate of
ROBERT E. “BOB” HOPKINS,
Plaintiff-Appellant,
v.
OKLAHOMA PUBLIC EMPLOYEES
RETIREMENT SYSTEM, sued as
State of Oklahoma, ex rel; DON
KILPATRICK; JOSEPH CARTER;
HOWARD CONYERS; JEAN
COULTER; DONALD KEENAN;
VAL SCHOTT; W. R. STUBBS;
No. 96-6302
DAVID W. WAY; JOHN M.
CRAWFORD; CODY GRAVES;
RICHARD HAUGLAND; OSCAR B.
JACKSON, JR., and TOM DAXON, in
their official capacities as Board
Members of the Board of Trustees of
the Oklahoma Public Employees
Retirement System; STEPHEN C.
EDMONDS, Executive Director of the
Oklahoma Public Employees
Retirement System, in his official
capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-96-0441-A)
E. Clyde Kirk, Stipe Law Firm, Oklahoma City, Oklahoma, for Plaintiff-
Appellant.
Lisa Tipping Davis, Assistant Attorney General, Oklahoma City, Oklahoma
(Barry K. Koonce, Assistant Attorney General, and Lydia Heimer Lee, General
Counsel, Oklahoma Public Employees Retirement System, with her on the brief)
for Defendants-Appellees.
Before SEYMOUR, Chief Judge, and EBEL and BRISCOE, Circuit Judges.
EBEL, Circuit Judge.
This case presents the question whether a state’s forfeiture of more than
two-thirds of a retired state employee’s pension, as a result of the employee’s
conviction for bribery after the employee has begun to collect his pension,
violates either the Fifth or Eighth Amendments to the United States Constitution.
We hold that the forfeiture is not unconstitutional under the Double Jeopardy
Clause because of the doctrine of dual sovereigns, nor is it unconstitutional under
the Excessive Fines Clause because, under Oklahoma law, the employee had not
acquired a vested property right in the pension.
Background.
Robert E. “Bob” Hopkins (“Hopkins”) served for twenty-two years as a
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member first of the Oklahoma House of Representatives and then the Oklahoma
Senate. In 1987, Hopkins left the state legislature and was sworn in as a member
of the Oklahoma Corporation Commission, a statewide elected board that
regulates public utilities in Oklahoma. Hopkins resigned his office on August 1,
1991, two years before his six-year term expired. Upon his retirement, the
Oklahoma Public Employees Retirement System (“OPERS”) credited Hopkins
with thirty-two years of service, including military service and other prior service,
and he began drawing a monthly pension of $4,293.18.
Three years later, on November 30, 1994, Hopkins was convicted in federal
court under 18 U.S.C. § 666 of accepting a bribe in connection with his vote in
1989 on a matter then being considered by the Corporation Commission. Hopkins
was sentenced to 33 months in prison, and was ordered to pay fines totaling
$71,234. Following his conviction, OPERS notified Hopkins that his pension
would be reduced by 70 percent, to $1,281.87 per month. This forfeiture of more
than two-thirds of Hopkins’ pension came as a result of Okla. Stat. tit. 51, §
24.1(A), which provides for the forfeiture of retirement benefits when a public
employee is convicted of a felony or other offense involving a violation of his
oath of office. 1 Hopkins estimated that this reduction resulted in an estimated
1
This statute provides in part:
Any elected or appointed state or county officer or
(continued...)
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loss to him and his wife, based on actuarial projections of their life expectancies,
of $706,452.85.
Hopkins challenged his pension forfeiture with an administrative appeal to
the OPERS Board of Trustees, but on September 21, 1995, the trustees upheld the
reduction. Hopkins did not appeal the OPERS final decision in Oklahoma state
court, as was his right under the Oklahoma Administrative Procedures Act, Okla.
Stat. tit. 75, § 318. Instead, Hopkins filed suit in federal court challenging the
constitutionality of the state’s pension forfeiture statute because of its alleged
violation of the Double Jeopardy and Excessive Fines Clauses of the Fifth and
Eighth Amendments. Suing under 42 U.S.C. § 1983, Hopkins sought prospective
equitable relief, including a declaration that the pension forfeiture statute is
1
(...continued)
employee who, during the term for which he was elected
or appointed, is, or has been, found guilty by a trial
court of a felony in a state or federal court of competent
jurisdiction . . . shall vacate such office or employment
and if such felony or other offense violates his oath of
office shall forfeit all benefits of said office or
employment, including, but not limited to, retirement
benefits provided by law; provided however, that such
forfeiture of retirement benefits shall not include such
officer’s or employee’s contributions to the retirement
system or retirement benefits that are vested on the
effective date of this act.
Okla. Stat. tit. 51, § 24.1(A). The state’s forfeiture in Mr. Hopkins’ case did not
include benefits that vested before the effective date of this statute in 1981. The
record does not reflect any claim by Mr. Hopkins that the state’s forfeiture
included money he had paid into the pension system.
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unconstitutional and an injunction against its enforcement. Although Hopkins
requested his attorneys fees, he did not seek any retrospective money damages.
On a motion from the state, the district court granted summary judgment to
the defendants and dismissed Hopkins complaint. The court found that the
pension forfeiture statute did not violate the Double Jeopardy Clause of the Fifth
Amendment because the underlying bribery prosecution against Hopkins was
brought by a separate sovereign. See United States v. Lanza, 260 U.S. 377, 382
(1922). The district court also found that the pension forfeiture statute did not
violate the Excessive Fines Clause of the Eighth Amendment because under
Oklahoma law, Hopkins had not acquired a property right in his pension benefits.
Following the entry of summary judgment, Hopkins filed a motion for a new trial
in which he raised new legal arguments, but the district court refused to consider
these new arguments and denied his motion.
During the pendency of Hopkins’ appeal before this court, Hopkins died.
Although the parties did not inform the court of the appellant’s death, the court
learned of this fact after oral argument, and the court directed the parties to
submit supplemental briefs on the question of whether Hopkins’ appeal was
mooted by his death. Hopkins’ widow, Frances L. Hopkins, who is the personal
representative of his estate, has now moved under Fed. R. App. P. 43(a) to be
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substituted as the named party in this appeal. 2
Discussion.
I. Abatement or survival of Hopkins’ suit.
As a preliminary matter, we must determine whether this case has been
mooted by Hopkins’ death. Hopkins filed his suit alleging constitutional claims
under 42 U.S.C. § 1983. That statute’s companion provision in 42 U.S.C.
§ 1988(a) provides that the federal courts’ jurisdiction to decide a section 1983
suit will be governed by applicable state law when there is no controlling federal
law on a particular point. See 42 U.S.C. 1988(a). In Robertson v. Wegmann, 436
U.S. 584, 588-90 (1978), the Supreme Court held that in the absence of any
federal law controlling the survival and abatement of section 1983 suits, this
question would be governed by the local state’s survival and abatement statute, so
long as that statute is “not inconsistent with the Constitution and laws of the
United States.” See 42 U.S.C. § 1988(a). This court has applied Robertson to
hold that the death of a plaintiff in a First Amendment suit under section 1983 did
not abate the cause of action for the plaintiff’s estate. See Grandbouche v.
2
Upon consideration of this motion, the court agrees that under Fed. R.
App. P. 43(a), Frances L. Hopkins, as the personal representative of the state of
Robert E. Hopkins, should be substituted as the named party in this appeal. The
caption of this appeal has been amended to reflect this decision.
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Clancy, 825 F.2d 1463, 1465 (10th Cir. 1987) (applying Colorado’s survival
statute); see also Anderson v. Romero, 42 F.3d 1121, 1123-25 (7th Cir. 1994)
(holding that a plaintiff’s section 1983 suit alleging Eighth Amendment violations
by prison officials was not rendered moot as a result of the plaintiff’s death
because Illinois law ensured the survival of such a suit). Indeed, we have relied
on Robertson as the basis for applying Oklahoma’s abatement statute, 3 the
specific statute at issue in this case, both to abate and to avoid abatement of two
federal civil rights suits. See Pietrowski v. Town of Dibble, 134 F.3d 1006,
1008-09 (10th Cir. 1998) (holding that under Oklahoma law, the plaintiff’s civil
rights claim for malicious prosecution would abate upon the death of the
defendant); Slade ex rel. Estate of Slade v. United States Postal Serv., 952 F.2d
357, 360 (10th Cir. 1991) (holding that under Oklahoma law, the plaintiff’s Title
VII claim would not abate upon his death).
Because Hopkins’ suit alleging double jeopardy and excessive fines
3
The Oklahoma abatement statute states:
No action pending in any court shall abate by the
death of either or both the parties thereto, except an
action for libel, slander or malicious prosecution, which
shall abate by the death of the defendant. An action for
libel, slander or malicious prosecution shall not abate
after a jury verdict or a decision by the court where the
trial is by the court, unless a new trial is ordered.
Okla. Stat. tit. 12, § 1052.
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violations does not constitute a claim for slander, libel or malicious prosecution,
Oklahoma law calls for the survival of his suit despite his death. See Okla. Stat.
tit. 12, § 1052. Thus, we conclude that Hopkins’ suit does not abate upon his
death. Because a live case or controversy continues to exist between Hopkins’
estate and the defendants, this case is not moot. 4 See Phelps v. Hamilton, 122
F.3d 1309, 1326 (10th Cir. 1997) (“The central question in determining whether a
case has become moot is whether ‘the issues presented are no longer “live” or the
parties lack a legally cognizable interest in the outcome.’”) (quoting Powell v.
McCormack, 395 U.S. 486, 496 (1969)); see also Erwin Chemerinsky, Federal
Jurisdiction, § 2.5.1, at 125 (2d ed. 1994) (noting that a civil case is not moot
under Article III even though the plaintiff has died as long as the plaintiff’s cause
of action survives his death).
4
We note that Mrs. Hopkins’ presence in this case results solely from her
role as the personal representative of Mr. Hopkins’ estate. Hopkins’ suit never
named his wife as a party, nor did Mrs. Hopkins ever seek relief for her own
property interest in her husband’s pension. See Okla. Stat. tit. 74, § 913.4(F)
(establishing that the surviving spouse of a state pension beneficiary is entitled to
50 percent of the pensioner’s benefit). Thus, even though Mrs. Hopkins might
have had standing to assert her own claim in her husband’s suit, at this stage in
the litigation, Mrs. Hopkins is only nominally a party in this case. Any relief that
might have resulted from this suit would have flowed to Mr. Hopkins’ estate, not
to Mrs. Hopkins personally.
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II. Exhaustion of Hopkins’ claims.
A second jurisdictional issue in this case is the state’s claim that
Oklahoma’s state-law exhaustion requirements for challenges against decisions by
state administrative agencies creates a bar to our federal jurisdiction over
Hopkins’ federal constitutional claims. The state relies on Oklahoma case law
that appears to require all challenges against state administrative action to be
pursued through the judicial review provisions of the Oklahoma Administrative
Procedures Act, Okla. Stat. tit. 75, § 318. See Martin v. Harrah Indep. Sch. Dist.,
543 P.2d 1370, 1372 (Okla. 1976). But see id. at 1375-76 (noting that exhaustion
is not required for suits under 42 U.S.C. § 1983 because “[r]elief under the Civil
Rights Act provides a supplemental remedy to any state remedy and relief under
the act may not be defeated because of failure to exhaust administrative remedies
provided under state law”).
The state’s argument is unavailing because it is more than well-settled that
a plaintiff under 42 U.S.C. § 1983 need not exhaust his administrative remedies
before filing suit in federal court. See Patsy v. Board of Regents, 457 U.S. 496,
516 (1982); Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 683 (10th
Cir. 1988) (reinstating a section 1983 suit that had been dismissed for failure to
exhaust administrative exhaustion). Furthermore, we note that Oklahoma’s
administrative exhaustion doctrine applies only when a litigant seeks “review of
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agency decisions.” See Johnson v. Board of Governors of Registered Dentists,
913 P.2d 1339, 1343 (Okla. 1996). Hopkins’ suit here, however, is not properly
characterized as a review of an agency decision. Hopkins has not contested the
correctness, in light of Oklahoma’s pension forfeiture statute, of the reduction in
his pension benefits. Instead, Hopkins is challenging the constitutionality of the
pension forfeiture statute itself. This challenge does not involve a review of the
arbitrariness or capriciousness of OPERS’s administrative decision under the
Oklahoma Administrative Procedures Act, Okla. Stat. tit. 75, § 322(1). Thus,
regardless of Oklahoma’s provisions for administrative review, we have
jurisdiction over this federal civil rights suit.
III. Hopkins’ constitutional claims.
Turning to the merits of Hopkins’ case, we note that in light of the lack of
any dispute over the facts in this case we exercise de novo review of the district
court’s determination of the constitutional issues here. See Villanueva v. Carere,
85 F.3d 481, 487 (10th Cir. 1996). Of course, as this case challenges the
constitutionality of a state statute, we are constrained by the “venerable
presumption” that an act of a state legislature is generally taken to be
constitutional, and the burden is on the plaintiff to demonstrate how the statute
transgresses the requirements of the United States Constitution. See id.
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A. Double jeopardy.
The first challenge Hopkins raises against Oklahoma’s reduction of his
pension benefits involves his claim that Oklahoma’s pension forfeiture statute
violates the Double Jeopardy Clause of the Fifth Amendment. Under the Fifth
Amendment, no person shall “be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V. For more than a century, the
Double Jeopardy Clause has been interpreted as inapplicable in those situations
where two separate sovereigns prosecute the same offence. See Moore v. Illinois,
55 U.S. (14 How.) 13, 19 (1852). “[A]n act denounced as a crime by both
national and state sovereignties is an offense against the peace and dignity of both
and may be punished by each.” United States v. Lanza, 260 U.S. 377, 382 (1922)
(upholding a federal prosecution under federal Prohibition laws after an earlier
conviction for the same conduct under state law).
Under this dual-sovereigns doctrine, the crucial question is whether the two
proceedings against a litigant can be characterized as emanating from “distinct
sources of power.” See Heath v. Alabama, 474 U.S. 82, 88 (1985). The Supreme
Court has been unwavering in its conclusion that when the two “sources of
power” at issue in a double jeopardy claim are the federal government and a state
government, then the dual-sovereigns doctrine applies and there is no double
jeopardy in the second prosecution. See United States v. Wheeler, 435 U.S. 313,
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316-17 & n.7 (1978). As the Court explained, “a federal prosecution does not bar
a subsequent state prosecution of the same person for the same acts, and a state
prosecution does not bar a federal one.” Id. at 317 n.7.
In Hopkins’ case, his first prosecution was in federal court for violation of
the federal bribery law under 18 U.S.C. § 666. The second proceeding against
Hopkins was before the Oklahoma pension board under Oklahoma’s pension
forfeiture statute, Okla. Stat. tit 51, § 24.1(A). It is beyond doubt, therefore, that
the “authority to punish” Hopkins in these two proceedings emanated from two
“distinct sources of power.” See Heath, 474 U.S. at 88. As result, Oklahoma’s
reduction in Hopkins’ pension benefits does not violate the Double Jeopardy
Clause.
Despite this conclusion, Hopkins argues that the dual-sovereigns doctrine
does not apply in his case because of the “sham prosecution” exception under
Bartkus v. Illinois, 359 U.S. 121 (1959). 5 In Bartkus, the Court held that an
5
Hopkins did not raise this argument based on Bartkus until after the
district court ruled on the defendants’ summary judgment motion. Normally, we
would not consider a newly raised argument on appeal when it was not properly
raised below. See Walker v. Mather, 959 F.2d 894, 896 (10th Cir. 1992).
However, we will consider Hopkins’ arguments on the “sham prosecution”
exception to the dual-sovereigns doctrine because Hopkins appears not to have
had an opportunity to address the state’s argument on this issue before the district
court rendered its decision.
The state’s motion for summary raised only two grounds for dismissing
Hopkins’ suit: the failure to exhaust state-law remedies and the contention that
(continued...)
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Illinois prosecution of the defendant under a state robbery statute was not barred
by the Double Jeopardy Clause in light of the defendant’s earlier acquittal in
federal court on a federal bank robbery charge based on the same course of
conduct. Id. at 121-22, 139. In the course of explaining this decision, the Court
rejected arguments that the Illinois prosecution was “merely a tool” by federal
prosecutors to overcome the defeat they had suffered in the federal prosecution.
See id. at 123. The court said the evidence failed to sustain any conclusion that
“the state prosecution was a sham and a cover for a federal prosecution.” Id. at
124.
The Tenth Circuit has interpreted this discussion of a “sham” prosecution in
Bartkus as suggesting a possible exception to the dual-sovereigns doctrine under
the Double Jeopardy Clause. See United States v. Raymer, 941 F.2d 1031, 1037
(10th Cir. 1991) (citing United States v. Bernhardt, 831 F.2d 181 (9th Cir. 1987));
see also United States v. Guzman, 85 F.3d 823, 826-27 (1st Cir. 1996) (noting
that the Bartkus suggestion of a “sham prosecution” exception has been adopted
in the D.C., First, Second, Fourth, Sixth, Ninth, and Tenth Circuits). But see
5
(...continued)
Oklahoma’s pension forfeiture statute did not impose a “punishment” under the
Double Jeopardy Clause. Only after Hopkins’ filed his opposition to the state’s
motion for summary judgment did the state raise the new argument that there was
no double jeopardy in this case because of the dual-sovereigns doctrine. In light
of this posture, we believe it is appropriate to consider Hopkins’ argument that
the dual-sovereigns doctrine is inapplicable.
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United States v. Brocksmith, 991 F.2d 1363, 1366 (7th Cir. 1993) (questioning
whether Bartkus actually recognized an exception to the dual-sovereigns
doctrine). In Raymer, this court held that the defendant had failed to present
sufficient evidence to show that a federal drug prosecution against the defendant
was a “sham” or “cover” for an aborted state prosecution. See Raymer, 991 F.2d
at 1039. Under Raymer, a defendant must meet a very high evidentiary burden to
establish the “sham prosecution” exception -- the defendant must show that “one
sovereign is so dominated by the actions of the other that the former is not acting
of its own volition.” Id. at 1037.
Hopkins argues that the “sham prosecution” exception applies in his case
because Oklahoma could not have prosecuted him for bribery under state law in
light of the state statute of limitations and because Oklahoma’s pension forfeiture
statute merely piggy-backs on top of a federal prosecution. These arguments,
however, do not come close to meeting the “substantial burden” on Hopkins to
show that Oklahoma’s attempt to forfeit his pension was “so dominated” by the
actions of federal prosecutors that Oklahoma officials were not acting of their
own volition. See Raymer, 991 F.2d at 1037. Indeed, the only evidence in the
record indicating contact between federal prosecutors and Oklahoma pension
officials is a letter from the United States Attorney for the Northern District of
Texas notifying OPERS that Hopkins had been convicted in federal court. As a
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result, we conclude that there is insufficient evidence to sustain a claim of “sham
prosecution” in Hopkins’ case. Thus, the dual-sovereigns doctrine applies here,
and Oklahoma’s forfeiture of Hopkins’ pension is not barred by the Double
Jeopardy Clause. 6
B. Excessive fines.
The second argument Hopkins raises against the forfeiture of his pension
benefits is his claim that Oklahoma’s pension forfeiture statute imposes an
excessive fine on him in violation of the Eighth Amendment. This amendment
reads, “Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. 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 Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 268 (1989).
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. 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
6
As a result of our conclusion that the dual-sovereigns doctrine applies in
Hopkins’ case, we do not reach Hopkins’ other argument that forfeiture of his
pension is a “punishment” subject to the Double Jeopardy Clause.
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the defendant. Cf. Austin v. United States, 509 U.S. 602, 604 (1993) (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
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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., 382 N.E.2d 243, 245-46 (Ill. 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 “payment” to the state of
Oklahoma, and this forfeiture does not violate the Excessive Fines Clause of the
Eighth Amendment.
On appeal, Hopkins now contends that under Oklahoma law he did indeed
have a “vested right” to at least that portion of his pension benefit that derives
from his service as a state legislator. Hopkins argues that under Oklahoma law
his pension benefits accruing as a result of his legislative service vested when he
completed his terms of office in the state House and the state Senate. He
contends that his bribery conviction, relating as it does to his position as a
Corporation Commissioner, affects only the pension benefits he accrued while
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serving on the Commission.
We decline to consider this argument because Hopkins failed to raise it
below before the district court rendered its summary judgment. Hopkins
presented his separate-vesting argument for the first time in his motion for a new
trial. However, unlike the dual-sovereigns issue discussed above, Hopkins was
fully on notice at the summary judgment stage that the question of whether his
pension rights had “vested” would be the crucial issue under his Eighth
Amendment claim. The state’s brief in support of summary judgment discussed
two state cases that had explicitly rejected arguments about indefeasible vesting
of pension benefits. See Kerner v. State Employees’ Retirement Sys., 382 N.E.2d
243, 246 (Ill. 1978); West Virginia Pub. Employees Retirement Sys. v. Dodd, 396
S.E.2d 725, 732-33 (W.Va. 1990), overruled on other grounds by Booth v. Sims,
456 S.E.2d 167 (W.Va. 1995). Thus, Hopkins could have, and should have,
presented his argument concerning pension vesting at that time. As the district
court noted in dismissing his motion for a new trial, a litigant may not treat
summary judgment proceedings as a “mere warmup” for the “main event.” See
Settino v. City of Chicago, 642 F. Supp. 755, 759 (N.D. Ill. 1986). We see no
abuse of discretion in the district court’s refusal to consider Hopkins’ untimely
attempt to raise this new argument in his motion for a new trial. Furthermore,
Hopkins’ failure properly to present his argument to the district court prevents us
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from considering the issue now. See Tele-Communications, Inc. v. Commissioner
of Internal Revenue, 104, F.3d 1229, 1233 (10th Cir. 1997) (“Propounding new
arguments on appeal in an attempt to prompt us to reverse the trial court
undermines important judicial values.”)
Conclusion
As a result, we hold that Oklahoma’s forfeiture of Hopkins’ pension
benefits under Okla. Stat. tit. 51, § 24.1(A), did not violate either the Double
Jeopardy Clause of the Fifth Amendment or the Excessive Fines Clause of the
Eighth Amendment. Thus, we AFFIRM the judgment of the district court.
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