New Jersey v. Anderson

Annotate this Case
Justia Opinion Summary

Defendant Bennie Anderson was employed by Jersey City in the Tax Assessor’s office. His position gave him the opportunity to alter property tax descriptions without the property owner filing a formal application with the Zoning Board. In December 2012, defendant accepted a $300 bribe in exchange for altering the tax description of a property from a two-unit dwelling to a three-unit dwelling. Defendant retired from his position in March 2017 and was granted an early service retirement pension. In November 2017, defendant pled guilty in federal court to violating 18 U.S.C. 1951(a), interference with commerce by extortion under color of official right. Defendant was sentenced to two years of probation and ordered to pay a fine. Based on defendant’s conviction, the Employees’ Retirement System of Jersey City reduced his pension. The State filed an action in state court to compel the total forfeiture of defendant’s pension pursuant to N.J.S.A. 43:1-3.1. The trial court entered summary judgment for the State, finding that the forfeiture of defendant’s pension did not implicate the constitutional prohibitions against excessive fines because the forfeiture of pension benefits did not constitute a fine. The Appellate Division affirmed the grant of summary judgment to the State, but on different grounds, concluding the forfeiture of defendant’s pension was a fine, but that requiring defendant to forfeit his pension was not excessive. The New Jersey Supreme Court concluded forfeiture of defendant’s pension under N.J.S.A. 43:1-3.1 did not constitute a fine for purposes of an excessive-fine analysis under the Federal or New Jersey State Constitutions. Because the forfeiture was not a fine, the Court did not reach the constitutional analysis for excessiveness.

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                    State v. Bennie Anderson (A-15/16-20) (084365)

Argued March 30, 2021 -- Decided August 11, 2021

LaVECCHIA, J., writing for the Court.

       In this appeal, the Court considers whether the forfeiture of defendant Bennie
Anderson’s right to a public pension violates his constitutional right to be free of
excessive fines.

        Defendant was employed by Jersey City in the Tax Assessor’s office. His position
gave him the opportunity to alter property tax descriptions without the property owner
filing a formal application with the Zoning Board. In December 2012, defendant
engaged in an illicit transaction where he accepted a $300 bribe in exchange for altering
the tax description of a property from a two-unit dwelling to a three-unit dwelling.
Defendant retired from his position in March 2017 and was granted an early service
retirement pension. In November 2017, defendant pled guilty in federal court to violating
18 U.S.C. § 1951(a), interference with commerce by extortion under color of official
right. Defendant was sentenced to two years of probation and ordered to pay a fine.
Based on defendant’s conviction, the Employees’ Retirement System of Jersey City
reduced his pension.

        The State filed an action in state court to compel the total forfeiture of defendant’s
pension pursuant to  N.J.S.A. 43:1-3.1. The trial court entered summary judgment for the
State, finding that the forfeiture of defendant’s pension did not implicate the
constitutional prohibitions against excessive fines because the forfeiture of pension
benefits did not constitute a fine. The Appellate Division affirmed the grant of summary
judgment to the State, but on different grounds.  463 N.J. Super. 168, 186 (App. Div.
2020). The Appellate Division concluded that the forfeiture of defendant’s pension was a
fine, but that requiring defendant to forfeit his pension was not excessive. Id. at 172-73.

       The Court granted certification.  244 N.J. 288 (2020).

HELD: The forfeiture of defendant’s pension under  N.J.S.A. 43:1-3.1 does not
constitute a fine for purposes of an excessive-fine analysis under the Federal or State
Constitutions. Because the forfeiture is not a fine, the Court does not reach the
constitutional analysis for excessiveness.

                                              1
1. The Eighth Amendment of the United States Constitution and Article I, Paragraph 12
of the New Jersey Constitution provide in relevant part that excessive fines shall not be
imposed. Before determining whether a “fine” is “excessive,” a court first determines
whether the government action at issue is a “fine.” United States v. Bajakajian,  524 U.S. 321, 334 (1998). Forfeitures -- payments in kind -- are “fines” if they constitute
punishment for an offense and involve turning over property of some kind that once
belonged to the defendant. In cases in which the status of the forfeited asset as
“property” is disputed, courts resolve the dispute by examining state law. The analysis in
the instant matter therefore begins by asking whether, under New Jersey law, defendant
had a property right in his pension such that the forfeiture of that “right” is a “fine”
within the meaning of the Eighth Amendment or the State Constitution. (pp. 13-17)

2. For many years, the seminal case on pension forfeiture was Uricoli v. Board of
Trustees, Police & Firemen’s Retirement System, in which the Court determined that an
inflexible forfeiture rule was not clearly expressed in the language of the pension statute.
See  91 N.J. 62, 77 (1982). The Court identified factors to consider and balance when
determining whether to impose a pension forfeiture, in the absence of any perceived
legislative intent for mandatory forfeiture. Id. at 77-78. (pp. 17-18)

3. In 2007, the Legislature added  N.J.S.A. 43:1-3.1 -- the statute pursuant to which the
State seeks forfeiture of defendant’s pension.  N.J.S.A. 43:1-3.1(a) provides that a public
employee “who is convicted of any crime set forth in subsection (b) of this section, or of
a substantially similar offense under the laws of another state or the United States . . .
shall forfeit all of the pension or retirement benefit earned.” (emphasis added).  N.J.S.A.
43:1-3.1 was in effect in 2012 when defendant’s offense occurred. Also in effect at that
time was  N.J.S.A. 43:1-3(a), which provides that “[t]he receipt of a public pension or
retirement benefit is hereby expressly conditioned upon the rendering of honorable
service by a public officer or employee.” Subsection (b) of  N.J.S.A. 43:1-3 empowers
boards of trustees to order full or partial pension forfeiture upon dishonorable service,
and subsection (c) lists factors -- similar to the Uricoli factors -- for determining whether
misconduct breached the honorable service requirement. (pp. 18-21)

4. Section 3 makes honorable service a condition of a right to a pension, and section 3.1
makes forfeiture of any right to a pension the result when honorable service is not
provided due to conviction of an enumerated offense. The plain language of section 3.1
expresses an unambiguous legislative intent to make the commission of offenses
enumerated in subsection (b) the basis for mandatory and absolute pension forfeiture.
The factors for consideration contained in  N.J.S.A. 43:1-3(c), which resemble those set
forth in Uricoli, apply to public employee misconduct raising honorable service questions
outside of circumstances involving convictions for which section 3.1 requires mandatory
and absolute forfeiture. As a result of the adoption of section 3.1, no longer can the Court
conclude, as it did in Uricoli, that the Legislature did not, unequivocally and
categorically, condition the receipt of a pension on the rendering of uniformly honorable

                                              2
service. Defendant committed his offense after the 2007 amendment to the pension laws
was enacted and, thus, by the time he committed his offense, the Legislature had
eliminated all doubt as to its intent that there be a certain category of offenses the
commission of which precludes receipt of a publicly funded pension in New Jersey.
Defendant’s federal conviction is an analogue to the state offenses listed and, as per the
statute’s wording, qualifies as the basis for the State’s application. (pp. 22-23)

5. Because forfeiture of a pension is automatic and mandatory upon the commission of
certain offenses under section 3.1, it is clear that defendant did not possess a property
right in his pension protected by the Federal or State Constitutions. The Legislature has
established that the pre-condition of honorable service to the statutory right is not met
when a conviction for an enumerated offense occurs. In such a case, the conditional
quasi-contractual right to receive a public pension has not become the “property” of the
employee, so there is no fine for purposes of the Bajakajian analysis. And as the trial
court noted, New Jersey’s treatment of public pensions as quasi-contractual rights rooted
in statute, and not as property rights, is consistent with the majority of courts to have
addressed this issue and have similarly denied excessive-fine claims on the basis of the
first prong of the analysis. Family law cases that have, in that setting, treated pensions as
property subject to equitable distribution do not and cannot convert a public pension into
a nonforfeitable property right. Because the Court concludes that the forfeiture worked
by operation of  N.J.S.A. 43:1-3.1 is not a fine, the Court does not reach a constitutional
analysis for excessiveness. The Court therefore declines to review and vacates the
portion the Appellate Division’s opinion analyzing excessiveness. (pp. 24-26)

       AFFIRMED AS MODIFIED.

        JUSTICE ALBIN, dissenting, would find that Anderson had a property interest
in his pension and that the complete forfeiture of his pension violates the Eighth
Amendment’s Excessive Fines Clause. Explaining that a contract may create a property
right and that pensions are considered property subject to equitable distribution in family
law jurisprudence, Justice Albin asserts that a pension should not constitute property for
one purpose but not another. Justice Albin stresses that Anderson’s conviction, the
condition subsequent that triggered the forfeiture, did not arise until after his pension had
vested. Justice Albin concludes that the punitive forfeiture of Anderson’s pension --
deferred compensation accumulated over thirty-eight and a half years of public
employment -- is a fine for Eighth Amendment purposes. Justice Albin further submits
that the fine was excessive -- that the forfeiture of defendant’s entire pension valued at
over one million dollars was “grossly disproportional” to defendant’s isolated crime of
accepting a $300 bribe.

JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-
LOUIS join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a dissent.
CHIEF JUSTICE RABNER did not participate.

                                              3
       SUPREME COURT OF NEW JERSEY
           A-15/
16 September Term 2020
                       084365


                State of New Jersey,

        Plaintiff-Respondent/Cross-Appellant,

                          v.

                  Bennie Anderson,

      Defendant-Appellant/Cross-Respondent.

       On certification to the Superior Court,
   Appellate Division, whose opinion is reported at
        463 N.J. Super. 168 (App. Div. 2020).

      Argued                       Decided
   March 30, 2021               August 11, 2021


Nirmalan Nagulendran argued the cause for
appellant/cross-respondent (Miller, Meyerson & Corbo,
attorneys; Nirmalan Nagulendran and Gerald D. Miller,
on the briefs).

Lauren Bonfiglio, Deputy Attorney General, argued the
cause for respondent/cross-appellant (Andrew J. Bruck,
Acting Attorney General, attorney; Steven K. Cuttonaro,
Deputy Attorney General, of counsel and on the briefs).

Alexander Shalom argued the cause for amici curiae
American Civil Liberties Union of New Jersey and
Association of Criminal Defense Lawyers of New Jersey
(American Civil Liberties Union of New Jersey
Foundation and Whipple Azzarello, attorneys; Alexander


                          1
            Shalom, Jeanne LoCicero, and William J. Munoz, on the
            brief).

            Anthony F. DellaPelle submitted a brief on behalf of
            amicus curiae the Institute for Justice (McKirdy, Riskin,
            Olson & DellaPelle and Institute for Justice, attorneys;
            Anthony F. DellaPelle, Allan C. Zhang, Wesley Hottot,
            of the Washington and Texas bars, admitted pro hac vice,
            and Jaba Tsitsuashvili, of the California and District of
            Columbia bars, admitted pro hac vice, on the brief).


          JUSTICE LaVECCHIA delivered the opinion of the Court.


      Defendant Bennie Anderson, a former employee in the tax assessor’s

office in the City of Jersey City (the City or Jersey City), was convicted of a

federal offense touching upon his position of public employment. Based on

that conviction, the State of New Jersey filed an action in state court pursuant

to  N.J.S.A. 43:1-3.1 to compel the forfeiture of defendant’s public pension.

This appeal concerns defendant’s claim that forfeiture of his right to a public

pension violates his constitutional right to be free of excessive fines.

      The trial court and the Appellate Division brought the appropriate

structure to their analyses of defendant’s excessive-fine claim, addressing first

whether the penalty imposed was a “fine,” and if so, whether the fine was

excessive. The trial court’s analysis ended at the first step: the court found

that no fine was exacted because honorable service is a condition of eligibility

for the pension benefit, and one could not lose that to which one did not have a

                                         2
right to begin with. The Appellate Division disagreed with the trial court’s

analysis of the first inquiry but affirmed the grant of summary judgment to the

State because it concluded that the fine to which defendant was subjected was

not excessive. Accordingly, the Appellate Division upheld the pension

forfeiture.

      We granted defendant’s petition for certification,  244 N.J. 288 (2020), in

which defendant contends that the Appellate Division applied an inappropriate

analysis for excessiveness, and the State’s cross-petition,  244 N.J. 288, 288-89

(2020), in which the State argues that defendant’s forfeiture of his public

pension does not constitute a fine.

      We now affirm the judgment upholding the forfeiture of defendant’s

pension, but our reasoning differs from that of the Appellate Division. We

conclude, as did the trial court, that defendant was not subjected to a fine.

Accordingly, our conclusion on that first inquiry eliminates the need to assess

whether the forfeiture constitutes an excessive fine. As a result, we need not

review or express an opinion on the test for excessiveness employed by the

Appellate Division.




                                        3
                                        I.

                                        A.

      Defendant was employed by Jersey City in the Tax Assessor’s office.

His position gave defendant the opportunity to alter property tax descriptions

without the property owner filing a formal application with the Zoning Board.

That power of alteration included the significant ability to alter the number of

housing units permitted on a parcel of property, which is what led to the

forfeiture issue before us.

      During the period from December 9 to December 13, 2012, defendant

and an individual cooperating with federal law enforcement engaged in an

illicit transaction. The record from defendant’s federal conviction was

presented in this forfeiture action. That record reveals that the individual, “a

Jersey City property owner whose property was zoned for a two-unit

dwelling,” sought to establish and exploit a back channel with defendant to

have property rezoned as a three-unit dwelling. The individual contacted

defendant on December 9, and on December 12, defendant agreed to rezone

the property in exchange for a $300 bribe. On December 13, 2012, defendant

told the individual that he had rezoned the property and accepted $300 in cash.

      Defendant retired from his position in the first quarter of 2017 having

served in the government of Jersey City for thirty-eight and one-half years.


                                        4
His public position and years of service allowed him to apply for a public

pension provided and administered locally by the City. On March 1 of that

year, he was “granted an early service retirement pension of $60,173.67” per

year.

        Later that year, the United States Attorney’s Office for the District of

New Jersey charged defendant with violating 18 U.S.C. § 1951(a), interference

with commerce by extortion under color of official right, 1 a charge that carried

a maximum prison sentence of twenty years and a maximum fine that was “the

greatest of: (1) $250,000; (2) twice the gross amount of any pecuniary gain

that any persons derived from the offense; or (3) twice the gross amount of any

pecuniary loss sustained by any victims of the offense,” plus interest.

Defendant and the federal government entered into a plea agreement on June

30, 2017, whereby defendant pled guilty to one count of violating § 1951(a),

and he stipulated to the above-recited facts. Defendant entered a formal plea

on November 21, 2017, and on March 5, 2018, the United States District Court

for the District of New Jersey sentenced defendant to two years of probation

with five months of home detention and imposed a fine in the amount of

$3,000 and a special assessment of $100.


1
  Although the charging document provided by the State in the record is
undated, the State represents that this criminal information was filed on
November 21, 2017, with defendant’s plea form.
                                          5
                                         B.

      With respect to defendant’s pension, which he received through the

locally administered pension fund for public employees of Jersey City, the

following facts and procedural history are pertinent.

      Between the conclusion of defendant’s federal prosecution and the

institution of the litigation that led to the instant appeal, the Board of Trustees

of the Employees’ Retirement System of Jersey City held a hearing on

defendant’s pension status. It resolved, on account of defendant’s federal

conviction, to reduce his pension to $47,918.76 per year.

      The State then took action against defendant based on the prescriptions

in  N.J.S.A. 43:1-3.1. On March 26, 2019, the State commenced the instant

action by way of “verified complaint in lieu of prerogative writ seeking

forfeiture of public office and position, permanent disqualification from any

position of public honor, trust, or profit, and forfeiture of pension or retirement

benefits.” The complaint sought total forfeiture of defendant’s pension

pursuant to  N.J.S.A. 43:1-3.1. 2


2
  According to the State, the federal offense of which defendant was convicted
was substantially similar to the following offenses listed in N.J.S.A. 43:1-3.1:
theft by extortion ( N.J.S.A. 2C:20-5), commercia1 bribery ( N.J.S.A. 2C:21-
10), bribery in official matters ( N.J.S.A. 2C:27-2), acceptance or receipt of
unlawful benefit by public servant for official behavior ( N.J.S.A. 2C:27-10),
tampering with public records or information ( N.J.S.A. 2C:28-7), and official

                                         6
      The next day, the State applied for an order to show cause to dispose of

the matter “as a summary proceeding” and to require defendant to show cause

“why summary judgment should not be entered.” The trial court granted the

application to proceed summarily.

      Defendant filed an answer on May 7, 2019, admitting most of the

allegations in the State’s complaint but denying that his federal conviction was

for a crime substantially similar to an enumerated state offense in  N.J.S.A.

43:1-3.1. Defendant also protested that “the proposed forfeiture of Bennie

Anderson’s entire pension under these facts would be an excessive fine” within

the meaning of the Eighth Amendment of the United States Constitution and

Article I, Paragraph 12 of the New Jersey Constitution. 3

      The Honorable Mary Jacobson, A.J.S.C., heard argument on the matter

and entered judgment for the State. The court focused on the Legislature’s

2007 amendment to the pension laws, L. 2007, c. 49, § 2, codified at  N.J.S.A.

43:1-3.1. The court determined that the 2007 amendment eliminated judicial

discretion in certain circumstances by calling for mandatory pension forfeiture



misconduct ( N.J.S.A. 2C:30-2). Thus, the State considered  N.J.S.A. 43:1-
3.1(a)’s forfeiture requirement applicable to defendant.
3
  Defendant also argued that “[t]he State of New Jersey is estopped from
seeking the forfeiture of Bennie Anderson’s entire pension.” That argument is
not part of this appeal.
                                       7
for the commission of identified offenses touching on or involving a public

office, position, or employment, “to preclude individuals who have once

violated the public trust from having a second opportunity to do so,” and to

ensure “there should be no stigma of conviction of a crime of dishonesty

among public employees.” The court reviewed this Court’s earlier decision in

Uricoli v. Board of Trustees, Police & Firemen’s Retirement System,  91 N.J.
 62 (1982), which found, under the prior statutory law, that the pension laws

did not mandate forfeiture and set forth factors for courts to use when

exercising their discretion in determining whether to order forfeiture.

      However, the trial court found that case law to have been superseded by

changes to the statute. The court reasoned from a review of the 2007

amendment and later case law that “the policy in these forfeiture statutes is a

harsh response, but . . . it was a harsh response to a problem serious enough to

justify its harshness.” The court noted that “the forfeiture statute itself

codifies a long-standing policy against retention of offenders in government

service,” and stated further that “the statute reflects a legislative determination

governing the standards of conduct to be observed by those who serve the

public as a condition to continued employment.”

      In applying the forfeiture statute to defendant, the trial court further

agreed with the State that the federal statute Anderson was convicted of


                                         8
violating was similar enough to the state offenses enumerated in  N.J.S.A. 43:1-

3.1 to justify entering the order sought by the State. 4

      Addressing defendant’s argument that the forfeiture of his pension

violated the Excessive Fines Clause of the Eighth Amendment of the United

States Constitution, the court determined that “pensions are more of a

contractual arrangement between a public employee and the employer,” which

are “conditioned on honorable service,” than they are a property right. Noting

that “there was no property right to the pension benefits when there’s a breach

of the honorable service” condition, the court concluded that, therefore,

“forfeiture of the pension benefits does not constitute a payment to the State”

or fine. The court reasoned that without a property right at stake, the

Excessive Fines Clause was not implicated.

      Defendant appealed, and the Appellate Division affirmed the grant of

summary judgment to the State, but on different grounds. State v. Anderson,

 463 N.J. Super. 168, 186 (App. Div. 2020). The Appellate Division was

persuaded that the forfeiture of defendant’s pension was a “fine” within the

meaning of the constitutional provisions “because he had a property interest in

the form of a contractual right to receive pension benefits, despite the fact that



4
  As readily acknowledged by the State, defendant’s individual contributions
toward his pension are returned upon forfeiture.
                                         9
this right was conditioned on his performance of honorable service. ” Id. at

172. In reaching that decision, the court acknowledged that a majority of other

states take a contract-right approach to pension forfeiture and conclude

otherwise when confronted with an excessive-fine argument. However, the

court was persuaded to adopt its property right analysis and conclude that

forfeiture constituted a fine. Importantly however, the Appellate Division did

not find that requiring defendant to forfeit his pension was “excessive,” for

two reasons. Id. at 172-73. The court explained,

            [f]irst, by enacting  N.J.S.A. 43:1-3.1, the Legislature
            expressed its clear intent that such a remedy was
            appropriate for the precise official misconduct
            committed by defendant. Second, . . . defendant’s
            taking of a bribe in exchange for a favorable and
            unjustified change in a property’s tax description is a
            profound breach of the public trust such that a total
            pension forfeiture is not a disproportionate result.

            [Id. at 173.]

                                        II.

      Defendant does not raise a categorical challenge to the forfeiture statute

itself. Instead, the parties divide their arguments into parts that address (1)

whether forfeiture constitutes a fine and, if so, (2) whether the forfeiture

applied here is an excessive fine. We granted leave to appear as friends of the

Court to the American Civil Liberties Union of New Jersey (ACLU) and the

Association of Criminal Defense Lawyers of New Jersey (ACDL),
                                        10
participating jointly, and to the Institute for Justice. We consider amici’s

arguments with those of the parties.

                                         A.

      On the question whether the pension forfeiture in this appeal constitutes

a fine, the State maintains in its cross-petition that there is a quasi-contractual

right rooted in the statutory benefit of a pension, but that right is conditional

and dependent on honorable service as defined by the statutory pension

scheme. According to the State, receipt of a pension was always conditioned

on honorable service, and  N.J.S.A. 43:1-3.1 has merely clarified when the

precondition of honorable service is not satisfied, namely through conviction

for any of the enumerated offenses touching on or involving public positions

such as defendant’s.

      The State further maintains that the case law, up to Uricoli, recognized

forfeiture to be absolute. With Uricoli determining that the Legislature had not

clearly expressed such an absolute requirement, the State argues that Uricoli

merely set forth factors for a court to use when forfeiture is discretionary and

subject to equitable considerations, which is no longer the case since

enactment of the prescriptions of  N.J.S.A. 43:1-3.1.

      Defendant advances the property right analysis that the Appellate

Division found persuasive, reasoning largely by analogy to matrimonial cases


                                         11
addressing the distribution of pension benefits following divorces. The ACLU

and ACDL support defendant’s position that public employees have property

rights in their pensions and that pension forfeitures constitute fines.

                                        B.

      Defendant’s petition asserts that the Appellate Division applied an

erroneous standard for excessiveness. He maintains that a court must look at

factors other than just the nature and impact of the offense. Asserting that the

United States Supreme Court “has considered factors other than the offense” in
 Eighth Amendment cases, he asks this Court to fashion an analysis that

considers the impact of the fine on the individual in addition to the offense.

      Criticizing the Appellate Division’s excessiveness analysis as leaning

too much on legislative intent and not enough on the historical roots and

purposes of the excessive fines prohibition, amici ACLU and ACDL advance

an interpretation that takes into account an individual’s means and ability to

pay a fine, and argue that even if the Federal Constitution’s protection does not

take those circumstances into account, then the State Constitution may.

      Amicus curiae the Institute for Justice similarly criticizes the Appellate

Division’s excessiveness analysis. The Institute urges adoption of an

individualized analytical method that focuses on the harm actually caused by




                                        12
the defendant and the harshness of the proposed penalty vis-à-vis the

defendant, in light of his or her ability to pay.

      In countering the position taken by defendant and amici, the State urges

that we not reach the issue and, instead, end our analysis by finding that

forfeiture as applied here does not constitute a fine.

                                         III.

      Certain standards of review apply in the analysis of this matter. As an

appellate court, we approach the review of the grant of summary judgment “de

novo, applying the same standard as the trial court.” Woytas v. Greenwood

Tree Experts, Inc.,  237 N.J. 501, 511 (2019); see also R. 4:46-2(c). We also

“review the interpretation of a statute de novo.” State v. Pinkston,  233 N.J.
 495, 507 (2018). In doing so, “our overarching duty is 'to construe and apply

the statute as enacted.’” Daidone v. Buterick Bulkheading,  191 N.J. 557, 565

(2007) (quoting DiProspero v. Penn,  183 N.J. 477, 492 (2005)). When a court

construes a statute “[t]o interpret [its] meaning and scope . . . , we look for the

Legislature’s intent.” State v. McCray,  243 N.J. 196, 208 (2020). As we often

have said, “the statute’s plain language” is “the best indicator of intent.” In re

T.B.,  236 N.J. 262, 274 (2019).

      Before this Court, defendant advances an as-applied constitutional claim

that an order forfeiting the remaining part of his pension violates federal and


                                         13
state constitutional prohibitions against excessive fines. The Eighth

Amendment of the United States Constitution provides that “[e]xcessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” Article I, Paragraph 12 of the New Jersey Constitution

provides in relevant part that “[e]xcessive bail shall not be required, excessive

fines shall not be imposed, and cruel and unusual punishments shall not be

inflicted.” 5

       As defendant, the State, the trial court, and Appellate Division all

recognize, courts apply the test promulgated by United States v. Bajakajian,

 524 U.S. 321 (1998), to determine whether a forfeiture constitutes an

excessive, and therefore prohibited, fine. See, e.g., United States v. Bikundi,

 926 F.3d 761, 794-96 (D.C. Cir. 2019); United States v. Cheeseman,  600 F.3d 270, 282-85 (3d Cir. 2010). The federal Excessive Fines Clause and

Bajakajian’s analysis bind the states by operation of the Due Process Clause of

the Fourteenth Amendment. Timbs v. Indiana, 586 U.S. ___,  139 S. Ct. 682,



5
  As noted by Professor Williams, this first sentence of Paragraph 12 of
Article I “was carried over verbatim from Article I, Section 15, of the 1844
Constitution.” Robert J. Williams, The New Jersey State Constitution 76
(2012). The excessive-fine provision has not been the subject of much
Supreme Court review, and has to date not veered from federal precedent in
application. See Davanne Realty v. Edison Township,  408 N.J. Super. 16, 22
(App. Div. 2009) (applying United States Supreme Court precedent), aff’d
o.b.,  201 N.J. 280, 281 (2010).
                                        14
686-87 (2019); Davanne Realty,  408 N.J. Super. at 22; see also Comm. to

Recall Robert Menendez from the Office of U.S. Senator v. Wells,  204 N.J. 79,

131 (2010) (“[T]he U.S. Supreme Court is, of course, the ultimate arbiter of

the Federal Constitution.”).

      The Bajakajian test entails a two-part inquiry. “By its plain language,

the Excessive Fines Clause of the Eighth Amendment is violated only if the

disputed [forfeiture is] both [a] 'fine[]’ and 'excessive.’” Tillman v. Lebanon

Cnty. Corr. Facility,  221 F.3d 410, 420 (3d Cir. 2000); cf. Menendez,  204 N.J.

at 105 (“Our analysis begins with the plain language of the Federal

Constitution.”).

      Therefore, before determining whether a “fine” is “excessive,” a court

must first determine whether the government action at issue is a “fine,” such as

to implicate the Eighth Amendment. See Bajakajian,  524 U.S.  at 334

(“Because the forfeiture of respondent’s currency constitutes . . . a 'fine’

within the meaning of the Excessive Fines Clause, we now turn to the question

whether it is 'excessive.’”).

      “[A]t the time the Constitution was adopted, 'the word “fine” was

understood to mean a payment to a sovereign as punishment for some

offense.’” Bajakajian,  524 U.S.  at 327 (quoting Browning-Ferris Indus. of Vt.,

Inc. v. Kelco Disposal, Inc.,  492 U.S. 257, 265 (1989)). “The Excessive Fines


                                        15
Clause thus 'limits the government’s power to extract payments, whether in

cash or in kind, “as punishment for some offense.”’” Id. at 328 (quoting

Austin v. United States,  509 U.S. 602, 609-10 (1993)). “Forfeitures

-- payments in kind -- are thus 'fines’ if they constitute punishment for an

offense.” Ibid. “Implicit in this interpretation of the Excessive Fines Clause is

the notion that it applies only when the payment to the government involves

turning over 'property’ of some kind that once belonged to the defendant.”

Hopkins v. Okla. Pub. Emps. Ret. Sys.,  150 F.3d 1155, 1162 (10th Cir. 1998);

see also Bajakajian,  524 U.S.  at 328 (explaining that the Clause “limits the

government’s power to extract payments” from an individual) (emphasis

added).

      In the typical case, the status of the forfeited asset as “property” is not

disputed. E.g., Timbs, 586 U.S. at ___,  139 S. Ct.  at 686 (discussing forfeiture

of automobile); Bajakajian,  524 U.S.  at 324 (discussing forfeiture of currency);

Cheeseman, 600 F.3d    at 284 (discussing forfeiture of firearms and

ammunition). However, in cases in which the status of the asset taken from

the individual is disputed, courts resolve the dispute by examining state law.

E.g., Hopkins, 150 F.3d    at 1162 (applying Oklahoma law); Pub. Emp. Ret.

Admin. Comm’n v. Bettencourt,  47 N.E.3d 667, 674-76 (Mass. 2016)

(applying Massachusetts law).


                                        16
      Thus, as both the trial court and Appellate Division properly recognized,

in accordance with the Bajakajian inquiry, the analysis in the instant matter

must begin by asking whether, under New Jersey law, defendant had a

property right in his pension such that the forfeiture of that “right” is a “fine”

within the meaning of the Eighth Amendment or the State Constitution. We

will consider defendant’s claim that the exaction is constitutionally

“excessive” only if we determine that, under New Jersey law, defendant had

such a protectible right in the first instance.

                                         IV.

      Determination of whether a fine was imposed on defendant requires

review of the legal principles governing the forfeiture of public pensions in

New Jersey to ascertain the nature of defendant’s interest in his pension.

                                         A.

      For many years, the seminal case on pension forfeiture was Uricoli,

which involved a question of pension forfeiture for a Chief of Police caught

fixing a motor vehicle ticket. See  91 N.J. at 65. After he was found guilty of

one count of malfeasance in office, Uricoli applied for a pension and was

denied based on his failure to render honorable service. Ibid. When

administrative appeals brought no relief, our Court granted Uricoli’s petition

for certification. Id. at 65-66.


                                         17
      The Court’s decision in Uricoli “reaffirmed the rule that honorable

service is an implicit requirement of every public pension statute, whether or

not this conditional term appears in the particular statute.” Id. at 66. Contrary

to the position being taken by the State, however, the Court determined that an

inflexible forfeiture rule was not clearly expressed in the language of the

pension statute and concluded that the Legislature meant to leave room for

judicial discretion. Id. at 77.

      To assist courts and administrative bodies with implementation of a

flexible test for pension forfeiture, the Court identified factors to be considered

and balanced when applying that test to determine the reasonableness of

pension forfeiture, in the absence of any perceived legislative intent for

mandatory forfeiture. Id. at 77-78. The factors were rooted in equitable

considerations. Id. at 78. It bears noting that there is no suggestion of a

constitutional underpinning to the Court’s analysis.

      Uricoli remained the key case on the exercise of discretion by pension

boards and courts considering whether to impose a pension forfeiture for many

years. Then, in 2007, the Legislature added  N.J.S.A. 43:1-3.1 -- the statute

pursuant to which the State seeks forfeiture of defendant’s pension.

       N.J.S.A. 43:1-3.1(a) provides that

             [a] person who holds or has held any public office,
             position, or employment, elective or appointive, under
                                        18
            the government of this State or any agency or political
            subdivision thereof, who is convicted of any crime set
            forth in subsection b. of this section, or of a
            substantially similar offense under the laws of another
            state or the United States which would have been such
            a crime under the laws of this State, which crime or
            offense involves or touches such office, position or
            employment, shall forfeit all of the pension or
            retirement benefit earned as a member of any State or
            locally-administered pension fund or retirement system
            in which he participated at the time of the commission
            of the offense and which covered the office, position or
            employment involved in the offense. As used in this
            section, a crime or offense that “involves or touches
            such office, position or employment” means that the
            crime or offense was related directly to the person’s
            performance in, or circumstances flowing from, the
            specific public office or employment held by the
            person.

            [(emphasis added).]

      The next subsection lists the state-law offenses that trigger application of

subsection (a). See  N.J.S.A. 43:1-3.1(b)(1) to (23). Critically, subsection

(c)(2) mandates that

            [a] court of this State shall enter an order of pension
            forfeiture pursuant to this section . . . [u]pon application
            of the county prosecutor or the Attorney General, when
            the pension forfeiture is based upon a conviction of an
            offense under the laws of another state or of the United
            States. An order of pension forfeiture pursuant to this
            paragraph shall be deemed to have taken effect on the
            date the person was found guilty by the trier of fact or
            pled guilty to the offense.




                                         19 N.J.S.A. 43:1-3.1 (section 3.1) was in effect in 2012 when defendant’s offense

occurred. 6

      Also in effect at that time was  N.J.S.A 43:1-3.  N.J.S.A. 43:1-3(a)

provides that “[t]he receipt of a public pension or retirement benefit is hereby

expressly conditioned upon the rendering of honorable service by a public

officer or employee.” Other subsections of section 3 allow for a flexible,

discretionary analysis of whether full or partial forfeiture of a pension is an

appropriate response to dishonorable conduct.

      Subsection (b) provides that

              The board of trustees of any State or locally-
              administered pension fund or retirement system created
              under the laws of this State is authorized to order the
              forfeiture of all or part of the earned service credit or
              pension or retirement benefit of any member of the fund
              or system for misconduct occurring during the
              member’s public service which renders the member’s
              service or part thereof dishonorable and to implement
              any pension forfeiture ordered by a court pursuant to
              section 2 of L. 2007, c. 49 ([ N.J.S.A.] 43:1-3.1).

              [N.J.S.A. 43:1-3(b).]

And  N.J.S.A. 43:1-3(c) lists factors for a board of trustees to “consider and

balance” “[i]n evaluating a member’s misconduct to determine whether it


 6 See L. 2007, c. 49, § 2.  N.J.S.A. 43:1-3.1(b) was amended after December
2012 to add two crimes to the list of predicate offenses that trigger mandatory
pension forfeiture. Those offenses are not implicated here.

                                         20
constitutes a breach of the condition that public service be honorable and

whether forfeiture or partial forfeiture of earned service credit or earned

pension or retirement benefits is appropriate.” Those factors, which reflect the

considerations found in case law, see Uricoli,  91 N.J. at 77-78, are:

            (1) the member’s length of service;

            (2) the basis for retirement;

            (3) the extent to which the member’s pension has
            vested;

            (4) the duties of the particular member;

            (5) the member’s public employment history and
            record covered under the retirement system;

            (6) any other public employment or service;

            (7) the nature of the misconduct or crime, including the
            gravity or substantiality of the offense, whether it was
            a single or multiple offense and whether it was
            continuing or isolated;

            (8) the relationship between the misconduct and the
            member’s public duties;

            (9) the quality of moral turpitude or the degree of guilt
            or culpability, including the member’s motives and
            reasons, personal gain and similar considerations;

            (10) the availability and adequacy of other penal
            sanctions; and

            (11) other personal circumstances relating to the
            member which bear upon the justness of forfeiture.


                                        21
            [ N.J.S.A. 43:1-3(c)(1) to (11).]

      The flexible analysis that the Legislature has left in place within section

3 does not give rise to ambiguity about the legislative scheme. Section 3

makes honorable service a condition of a right to a pension, and section 3.1

makes forfeiture of any right to a pension the result when honorable service is

not provided due to conviction of an enumerated offense.

      The plain language of section 3.1 expresses an unambiguous legislative

intent to make the commission of certain offenses the basis for mandatory and

absolute pension forfeiture. The statutory language in section 3.1 leaves no

discretion for courts dealing with the entry of a judgment of conviction,

whether by trial verdict or plea, for the offenses enumerated in subsection (b).

 N.J.S.A. 43:1-3.1(a) directs that the convicted individual “shall forfeit all of

the pension” (emphasis added). See State v. Thomas,  188 N.J. 137, 149-50

(2006) (explaining that “shall” is typically mandatory).

      The factors identified in section 3 apply when mandatory absolute

forfeiture is not required by section 3.1. In other words, the factors for

consideration contained in  N.J.S.A. 43:1-3, which resemble those set forth in

Uricoli, apply to public employee misconduct raising honorable service

questions outside of circumstances involving convictions for which section 3.1

requires mandatory and absolute forfeiture.


                                        22
      Defendant’s reliance on Uricoli and its discussion is therefore

unavailing. The Legislature has spoken, filling the gap in the pre-2007

pension statutes on which the Uricoli decision was premised. As a result of

the adoption of section 3.1, no longer can this Court conclude, as it did in

Uricoli, see  91 N.J. at 77, that the Legislature did not, unequivocally and

categorically, condition the receipt of a pension on the rendering of uniformly

honorable service.

      Defendant committed his offense after the 2007 amendment to the

pension laws was enacted and, thus, by the time he committed his offense, the

Legislature had eliminated all doubt as to its intent that there be a certain

category of offenses the commission of which precludes receipt of a publicly

funded pension in New Jersey. 7 And to the extent that there is any question

that defendant’s federal conviction is an analogue to the state offenses listed

and, as per the statute’s wording, qualifies as the basis for the State’s

application, we endorse the findings and conclusion of the trial court.



7
   It is apparent the Legislature has woven a piece that reiterates that honorable
service is a condition of eligibility for pension receipt, N.J.S.A. 4 3:1-3, and
individual pensions remain forfeitable, see  N.J.S.A. 43:3C-9.5(d).  N.J.S.A.
43:3C-9.5 was amended by chapter 78, Laws of 2011, in connection with the
Legislature’s discussion of non-forfeitable pension rights. Of particular import
is subsection (d), which provides that nothing in that subsection altered the
forfeitability of individual pensions. The Legislature took pains to state
expressly that individual pensions are still subject to forfeiture.
                                        23
                                        B.

      Having determined that forfeiture of a pension is automatic and

mandatory upon the commission of certain offenses under section 3.1, it is

clear that defendant did not possess a property right in his pension protected by

the Federal or State Constitutions.

      The Legislature has established that the pre-condition of honorable

service to the statutory right is not met when a conviction for an enumerated

offense occurs. In such a case, the conditional quasi-contractual right to

receive a public pension has not become the “property” of the employee. As

the trial court said, one cannot lose what one did not have to begin with . And,

without loss, there is no fine for purposes of the Bajakajian analysis.

      In short, this case turns on the legislative decision in 2007 to take

discretion away from courts and administrative agencies when public

employees commit any of the identified offenses. The trial court correctly

noted that and faithfully applied the law as written. And, as the court’s

analysis noted, New Jersey’s approach to treat public pensions as quasi-

contractual rights rooted in statute, and not as property rights, is consistent

with the majority of courts to have addressed this issue. E.g., Hopkins, 150




                                        24 F.3d    at 1162; Hames v. City of Miami,  479 F. Supp. 2d 1276 (S.D. Fla. 2007). 8

Those decisions have similarly denied excessive-fine claims on the basis of the

first prong of the analysis. The Appellate Division’s reliance on family law

cases that have, in that setting, treated pensions as property subject to

equitable distribution was misplaced. So too does the dissent misplace

reliance on family law equitable-distribution law. That case law does not and

cannot convert a public pension into a nonforfeitable property right.

      That first prong to an excessive-fine analysis -- whether the forfeiture

here was a “fine” within the meaning of the Eighth Amendment -- proves to be

an impediment that defendant cannot overcome. We hold that the forfeiture of

defendant’s pension under section 3.1 does not constitute a fine for purposes of

an excessive-fine analysis under the Federal or State Constitutions.

                                        C.

      As a result of our conclusion that the forfeiture worked here by operation

of  N.J.S.A. 43:1-3.1 is not a fine, there is no reason to embark on a

constitutional analysis for excessiveness. The Appellate Division engaged in

that endeavor only because it reached a different conclusion on the issue of



8
  We note that to the extent that the Appellate Division, and now the dissent,
found the reasoning of the Bettencourt decision persuasive, we find that
decision to be based on a significantly differently drawn statutory scheme and
body of case law. See  47 N.E 3d at 673-77.
                                        25
whether this forfeiture constitutes a fine. Here, however, we need not reach

the question. Accordingly, we decline to review the Appellate Division’s

analysis for excessiveness and we vacate that portion of its opinion. See, e.g.,

Menendez,  204 N.J. at 95-96 (noting that courts do not engage in

constitutional rulings when unnecessary to our determination of an appeal).

                                       V.

      For the reasons expressed herein, we affirm with modification the

Appellate Division judgment. The award of summary judgment to the State is

affirmed.



       JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and
PIERRE-LOUIS join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed
a dissent. CHIEF JUSTICE RABNER did not participate.




                                       26
                                State of New Jersey,

                        Plaintiff-Respondent/Cross-Appellant,

                                         v.

                                 Bennie Anderson,

                    Defendant-Appellant/Cross-Respondent.


                            JUSTICE ALBIN, dissenting.


      The Eighth Amendment of the United States Constitution prohibits a

state from imposing an excessive fine on a person convicted of a crime. In this

case, the complete forfeiture of defendant Bennie Anderson’s pension for an

isolated crime for which he received a probationary sentence and modest fine

by a federal court violates the Excessive Fines Clause. In my view, the

majority has denied Anderson the protections afforded by the Federal

Constitution by failing to call a fine by its true name and by characterizing

state law in a way that seemingly evades federal review. I therefore

respectfully dissent.

                                         I.

      Bennie Anderson, a Vietnam War veteran, served in various municipal

positions in Jersey City for thirty-eight and a half years, retiring in March 2017


                                          1
at the age of fifty-nine with an early-service-retirement pension of $60,173.67

per year. Based on the estimate that Anderson would live to the age of eighty-

three, his pension at retirement was worth $1,462,220.18. 1

      On November 21, 2017 -- while Anderson was receiving his pension --

he entered a plea of guilty in federal court to the offense of interference with

commerce by extortion under color of official right, which carried a maximum

sentence of twenty years of imprisonment and a maximum fine of $250,000.

18 U.S.C. §§ 1951(a); 3571(b)(3), (d). In his plea, Anderson took

responsibility for accepting a $300 bribe in exchange for altering the tax

description of a property for zoning-classification purposes when he worked in

the Tax Assessor’s Office in December 2012.

      On March 5, 2018, a federal district court judge sentenced Anderson to

two years of probation and five months of home detention and ordered him to

pay a $3,000 fine and a $100 special assessment. As a result of his conviction,

the Employees’ Retirement System of Jersey City reduced Anderson’s pension

to $47,918.76 per year.



1
  According to the New Jersey Court Rules’ Table of Life Expectancies for
All Races and Both Sexes, a person who is fifty-nine can expect to live
between 23.9 and 24.7 more years, or 24.3 years on average. R. app. I-A.
Multiplying $60,173.67 per year by 24.3 years (assuming Anderson lives to the
age of eighty-three) yields the value of $1,462,220.18.

                                        2
      In 2019, two years after Anderson’s retirement, the Attorney General’s

Office filed a verified complaint in lieu of prerogative writs in the Superior

Court seeking the forfeiture of Anderson’s entire pension pursuant to  N.J.S.A.

43:1-3.1. That statute provides that a public employee who is convicted of the

type of crime that Anderson committed, a crime touching his office, “shall

forfeit all of the pension or retirement benefit earned as a member of” a

government retirement system.  N.J.S.A. 43:1-3.1(a). In accordance with the

statute, the court ordered the total forfeiture of Anderson’s pension. 2

      The issue before this Court is whether the total forfeiture of Anderson’s

pension valued at over one million dollars -- in comparison to the probationary

sentence and $3,100 financial penalty imposed by the federal court -- violated

the Eighth Amendment’s prohibition against excessive fines.

                                        II.

                                        A.

      The Eighth Amendment’s prohibition against excessive fines applies to

the states through the Due Process Clause of the Fourteenth Amendment.



2
  Anderson’s personal contributions into his pension were not forfeited. The
parties have not submitted documentation of the value of his contributions or
the total value of the forfeiture; however, Anderson’s counsel represented at
oral argument before this Court that he calculated the forfeiture value as “over
a million” dollars.

                                         3
Timbs v. Indiana, 586 U.S. ___,  139 S. Ct. 682, 686-87 (2019). “The

touchstone of the constitutional inquiry under the Excessive Fines Clause is

the principle of proportionality: The amount of the forfeiture must bear some

relationship to the gravity of the offense that it is designed to punish.” United

States v. Bajakajian,  524 U.S. 321, 334 (1998). “[A] punitive forfeiture

violates the Excessive Fines Clause if it is grossly disproportional to the

gravity of a defendant’s offense.” Ibid. (emphasis added). That inquiry is

informed by the history of the Excessive Fines Clause, which “ traces its

venerable lineage back to at least 1215, when Magna Carta . . . . required that

economic sanctions 'be proportioned to the wrong’ and 'not be so large as to

deprive [an offender] of his livelihood.’” Timbs, 586 U.S. at ___,  139 S. Ct.  at
 687-88 (alteration in original) (emphasis added) (quoting Browning-Ferris

Indus. of Vt., Inc. v. Kelco Disposal, Inc.,  492 U.S. 257, 271 (1989)); accord

Bajakajian,  524 U.S.  at 335-36.

      The majority asserts, however, that the proportionality review mandated

by the Eighth Amendment is unnecessary because the forfeiture of Anderson’s

pension is not a fine -- that because of Anderson’s dishonorable service he was

never entitled to the pension he was receiving and, accordingly, nothing was

taken from him. The meaning of what constitutes a fine for Eighth

Amendment and state law purposes therefore is critical to the analysis.

                                        4
      Under the Eighth Amendment, a fine is any payment extracted by the

government “whether in cash or in kind, as punishment for some offense.”

Bajakajian,  524 U.S.  at 328 (quotation omitted). “Forfeitures -- payments in

kind -- are thus 'fines’ if they constitute punishment for an offense.” Ibid.

The “threshold question” for whether a payment constitutes a “fine” is whether

“the payment to the government involves turning over 'property’ of some kind

that once belonged to the defendant.” Hopkins v. Okla. Pub. Emps. Ret. Sys.,

 150 F.3d 1155, 1162 (10th Cir. 1998); accord Pub. Emp. Ret. Admin. Comm’n

v. Bettencourt,  47 N.E.3d 667, 672-73 (Mass. 2016). To answer that question,

we look to New Jersey law to determine whether Anderson had a cognizable

property interest in the pension that was forfeited upon his conviction.

                                       B.

      That a pension is a creature of contract does not mean that a public

employee does not have a property interest in his pension. A contract may

create a property right. See Saginario v. Att’y Gen.,  87 N.J. 480, 492 n.3

(1981) (referring to “a statutory or contractual entitlement creating a property

interest”); 1 Williston on Contracts § 1:1 (4th ed. 2021) (“Enforceable contract

rights are deemed to be property rights.”).

      Public workers enter into government service with a promise that part of

their wages will be deferred until their retirement. That deferred compensation

                                        5
-- like the wages they receive weekly -- is earned every day through their

labor. See, e.g., Burgos v. State,  222 N.J. 175, 182 (2015) (“The individual

members of the public pension systems, by their public service, earned this

delayed part of their compensation.”); Steinmann v. Dep’t of the Treasury,  116 N.J. 564, 572 (1989) (“Pensions for public employees . . . . are in the nature of

compensation for services previously rendered and act as an inducement to

continued and faithful service.” (quoting Geller v. Dep’t of the Treasury,  53 N.J. 591, 597-98 (1969))); Spina v. Consol. Police & Firemen’s Pension Fund

Comm’n,  41 N.J. 391, 401 (1964) (recognizing that a government pension

“[i]n part . . . compensates for services already rendered”).

      That public employees have a property interest in their pensions -- their

deferred wages -- is made clear by our family law jurisprudence. This Court

has stated that “a pension is considered property subject to equitable

distribution . . . . [I]t is additional compensation for services rendered for the

employer and a right acquired during the marriage.” L.M. v. Div. of Med.

Assistance & Health Servs.,  140 N.J. 480, 496-97 (1995) (quotation omitted);

see also Whitfield v. Whitfield,  222 N.J. Super. 36, 45 (App. Div. 1987) (“[A]

pension plan [is] a form of deferred compensation for services rendered. As a

substitute for wages such benefits unquestionably constitute property.”).




                                         6
         A pension should not constitute property for one purpose but not another

-- particularly when the other results in evading the Excessive Fines Clause.

The Eighth Amendment is intended “to limit the government’s power to

punish.” Austin v. United States,  509 U.S. 602, 609 (1993). Taking from a

retired public employee the pension he is collecting is little different from

taking monies from the savings account where he has banked his wages for

years.

                                         C.

         Anderson had retired and was collecting his pension at the time of his

criminal conviction. No one disputes that “honorable service” is a condition

for the receipt of one’s pension.  N.J.S.A. 43:1-3(a) provides that “[t]he receipt

of a public pension or retirement benefit is hereby expressly conditioned upon

the rendering of honorable service by a public officer or employee. ”

Accordingly,  N.J.S.A. 43:1-3 permits the partial or total forfeiture of a public

employee’s pension for misconduct, depending on a weighing of eleven

statutory factors. See  N.J.S.A. 43:1-3(b), (c) (authorizing a pension board “to

determine whether [an employee’s misconduct] constitutes a breach of the

condition that public service be honorable and whether forfeiture or partial

forfeiture of earned service credit or earned pension or retirement benefits is




                                          7
appropriate” (emphasis added)). Under  N.J.S.A. 43:1-3.1, however, forfeiture

of a pension is mandated for certain convictions.

      To be clear, it was Anderson’s conviction -- a condition subsequent to

his retirement on pension -- that permitted the State to subject Anderson’s

pension to forfeiture. See 13 Williston on Contracts § 38:9 (4th ed. 2021)

(defining “condition subsequent” as a condition that divests a duty to perform

a contract after the duty has accrued). In other words, the conviction, the

condition subsequent that triggered the forfeiture, did not arise until after

Anderson’s pension had vested and he was receiving monthly pension checks.

      This issue is not whether Anderson’s pension can be forfeited but

whether a pension is a species of property, which, when forfeited, is subject to

the strictures of the Eighth Amendment. See Uricoli v. Bd. of Trs., PFRS,  91 N.J. 62, 76 (1982) (“[F]orfeiture -- whether of one’s pension or any other

property or benefit to which one is otherwise entitled -- is a penalty or a

punishment for wrongful conduct.” (emphasis added)).

      The Massachusetts Supreme Judicial Court has addressed that issue and

held that the forfeiture of a pension resulting from a “ violation of the laws

applicable to [a public employee’s] office or position” exacted a fine within

the meaning of the Excessive Fines Clause. Bettencourt,  47 N.E 3d at 670,

672, 676-77 (quoting Mass. Gen. Laws ch. 32, § 15(4)). Bettencourt, a police

                                         8
officer, was convicted of twenty-one counts of unauthorized access to a

computer system and, at the time, had been a member of the municipal

retirement system for over twenty-five years. Id. at 670-71. The public

employee retirement administration commission found that his conviction

related to his office, mandating forfeiture of his entire pension under the

applicable statute. Id. at 671.

      The Massachusetts high court held that the forfeiture of the entirety of

Bettencourt’s pension violated the Eighth Amendment. Id. at 670, 680-81.

The court explained “that a public employee who is a member of a retirement

system holds an interest in retirement benefits that originates in a 'contract’

and in substance amounts to a property right.” Id. at 675. According to the

court, “it is precisely [that] property interest that the employee is required to

forfeit, and the forfeiture effects what is in substance an extraction of

payments from the employee to the Commonwealth,” rendering it a fine

subject to Eighth Amendment review. Id. at 677.

      Anderson should stand in no different shoes than Bettencourt. Anderson

had a property interest in his pension -- deferred compensation accumulated

over thirty-eight and a half years of public employment. The punitive

forfeiture of Anderson’s pension is a fine for Eighth Amendment purposes.

The question remains whether the forfeiture of a pension valued at over one

                                         9
million dollars was so disproportionate to the offense of accepting a $300

bribe that it violates the Excessive Fines Clause.

                                       III.

                                       A.

      In evaluating whether a forfeiture is “grossly disproportional to the

gravity of a defendant’s offense” under the Eighth Amendment, Bajakajian,

 524 U.S.  at 334, courts may consider the following factors: (1) “the nature of

the substantive crime”; (2) whether the defendant “fit into the class of persons

for whom the [criminal] statute was principally designed”; (3) the maximum

sentence and fine “permitted under the statute” and “recommended by the

Sentencing Guidelines,” as “compare[d] [to] the amount the government

sought to forfeit”; and (4) the harm caused by the defendant’s conduct, United

States v. Cheeseman,  600 F.3d 270, 283-84 (3d Cir. 2010) (citing Bajakajian,

 524 U.S. at 337-39); accord United States v. Viloski,  814 F.3d 104, 110 (2d

Cir. 2016). At least two federal circuit courts have held that a court may also

consider the fine’s effect on a person’s livelihood. See Viloski, 814 F.3d    at

111 (“[H]ostility to livelihood-destroying fines became 'deeply rooted’ in

Anglo-American constitutional thought and played an important role in

shaping the Eighth Amendment.”); United States v. Levesque,  546 F.3d 78, 84

(1st Cir. 2008) (“Such ruinous monetary punishments are exactly the sort that

                                       10
motivated the 1689 [English] Bill of Rights and, consequently, the Excessive

Fines Clause.”).

                                        B.

      By the standards governing the Excessive Fines Clause, the complete

forfeiture of Anderson’s pension -- deferred compensation earned over a career

of thirty-eight and a half years and intended to sustain him in his retirement --

was “grossly disproportional” to his offense. That conclusion does not

diminish the seriousness of the crime committed by Anderson. By accepting a

$300 bribe in return for altering a tax description of a property from a two-unit

dwelling to a three-unit dwelling, Anderson betrayed a public trust. The

betrayal of that trust, even once in a long career, must be condemned and

punished. But the grossly disproportionate punishment here -- a forfeiture

likely to cause a ruinous financial hardship in the later years of Anderson’s life

-- does not fit the crime.

      Anderson did not take a series of bribes or engage in financial chicanery

over a course of years. He received a benefit of $300 for accepting a single

bribe in an almost four-decade career. In Anderson’s plea agreement, the

government acknowledged that he “clearly demonstrated a recognition and

affirmative acceptance of personal responsibility.” Although the federal crime

to which Anderson pled guilty exposed him to a potential twenty -year

                                       11
maximum prison sentence and a $250,000 maximum fine, and although the

sentencing guidelines called for a range of between ten and thirty -seven

months of imprisonment, see U.S. Sentencing Comm’n, Guidelines Manual

420 (Nov. 1, 2016), the court sentenced Anderson to only a probationary term

with five months of home detention and ordered him to pay only $3,100 in

financial penalties. See Bajakajian,  524 U.S.  at 339 n.14 (“That the maximum

fine and Guideline sentence to which respondent was subject were but a

fraction of the penalties authorized . . . show that respondent’s culpability

relative to other potential violators . . . is small indeed.”).

      “The amount of the forfeiture must bear some relationship to the gravity

of the offense that it is designed to punish.” Id. at 334. Measuring the

punishment imposed by the federal court against the forfeiture exacted by the

State -- the taking of over one million dollars in pension benefits that

Anderson had already begun receiving -- leads to but one conclusion: The

forfeiture of Anderson’s entire pension was “grossly disproportional” to the

crime and therefore violated the Eighth Amendment’s Excessive Fines Clause. 3



3
  That is not to say that a lesser forfeiture would not pass constitutional
muster. Indeed, the Employees’ Retirement System of Jersey City found a
reduction of Anderson’s pension from $60,173.67 to $47,918.76 per year
appropriate. That forfeiture, reducing his pension by $297,794.31 over 24.3
years, might well withstand constitutional scrutiny.

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                                          IV.

      In my view, a state court’s decision cannot evade Eighth Amendment

review by calling a fine imposed as punishment by some other name.

Anderson had a property interest in his pension, and the State exacted a

forfeiture of the entirety of that pension in violation of the Excessive Fines

Clause.

      I therefore respectfully dissent.




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