Hopkins v. Oklahoma Public Employees Retirement System, 96-6302

• Decision Date: 30 June 1998
• Docket Number: No. 96-6302,96-6302
• Citation: 1998 WL 348407,150 F.3d 1155
• Parties: 98 CJ C.A.R. 3587 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; 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.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1155

150 F.3d 1155

98 CJ C.A.R. 3587

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; 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.

No. 96-6302.

United States Court of Appeals, Tenth Circuit.

June 30, 1998.

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 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 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 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, 43 S.Ct. 141, 67 L.Ed. 314 (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 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, 98 S.Ct. 1991, 56 L.Ed.2d 554 (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. 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 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, 89 S.Ct. 1944, 23 L.Ed.2d 491 (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).

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.1975). 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, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982); Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 683 ...