State v. Anderson

• Decision Date: 11 August 2021
• Docket Number: 084365,A-15/16 September Term 2020
• Citation: 248 N.J. 53,256 A.3d 981
• Parties: STATE of New Jersey, Plaintiff-Respondent/Cross-Appellant, v. Bennie ANDERSON, Defendant-Appellant/Cross-Respondent.
• Court: New Jersey Supreme Court

248 N.J. 53

256 A.3d 981

STATE of New Jersey, Plaintiff-Respondent/Cross-Appellant,

v.Bennie ANDERSON, Defendant-Appellant/Cross-Respondent.

A-15/16 September Term 2020

084365

Supreme Court of New Jersey.

Argued March 30, 2021

Decided August 11, 2021

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

Lauren Bonfiglio, Deputy Attorney General, argued the cause for respondent/cross-appellant (Gurbir S. Grewal, 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 Shalom, Newark, 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 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, 239 A.3d 1039 (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, 239 A.3d 1039 (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.

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. 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.

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

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 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, 449 A.2d 1267 (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 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...