Tembruell v. City of Seattle

• Decision Date: 21 May 1964
• Docket Number: No. 37006,37006
• Court: Washington Supreme Court
• Parties: Richard D. TEMBRUELL, Respondent, v. The CITY OF SEATTLE, a municipal corporation, and the Board of Trustees of the Pension Fund of the Police Department of the City of Seattle, Appellants.

Page 503

64 Wn.2d 503

392 P.2d 453

Richard D. TEMBRUELL, Respondent, v. The CITY OF SEATTLE, a municipal corporation, and the Board

of Trustees of the Pension Fund of the Police

Department of the City of Seattle, Appellants.

No. 37006.

Supreme Court of Washington, Department 1.

May 21, 1964.

Rehearing Denied July 13, 1964.

A. L. Nwebould, Corporation Counsel Arthur T. Lane and Jerry F. King, Assts. Corp. Counsel, Seattle, for appellants.

Chavelle, Chavelle & Springer, Seattle, for respondent.

HALE, Judge.

The Seattle police pension board takes a tough-minded view of crimes committed by retired police officers. It stopped Richard D. Tembruell's police pension when it learned that he had engaged in felonious acts. Tembruell says that he was never convicted in the jurisdical sense for he finally received a deferred sentence, and the information against him was ultimately dismissed.

Tembruell became a member of the Seattle Police Department April 28, 1941. More than 8 years later, July 31, 1949, he retired with a pension for disability received in line of duty. RCW 41.20.060. A charge of grand larceny in knowingly receiving stolen property, filed May 13, 1955, resulted in a jury verdict of guilty November 2, 1955. With the verdict of guilty, the Seattle police pension board, acting pursuant to RCW 41.20.110, infra, ordered Tembruell's disability pension paid to his divorced wife, and through her to his minor children as their guardian ad litem.

On June 20, 1957, this court reversed the judgment of conviction (State v. Tembruell, 50 Wash.2d 456, 312 P.2d 809), and ordered a new trial, and the police pension board thereupon restored Tembruell's disability pension payments to him. Tembruell appeared before the superior court 3 months later and entered a plea of guilty to the information. Following entry of plea, the question of punishment remained under advisement--presumably awaiting a presentence report--until February 3, 1958, when Tembruell was granted probation under a deferred sentence.

After reciting that the defendant had entered a plea of guilty to the information charging him with grand larceny, and made application for probation, the order reads:

"ORDERED THAT the imposition of sentence against the Defendant herein, be, and the same is hereby suspended and deferred for a period of three years * * *." (Italics ours.)

The order placed Tembruell on probation under the supervision of the Board of Prison Terms and Paroles, required compliance with their instructions and regulations, imposed a term of 60 days in the county jail as a further condition of probation, and made him pay all court costs within 60 days of his release from jail. This order directed that, upon completion of the 60-day jail term, Tembruell be released from the custody of the sheriff 'to an officer of the Board of Prison Terms and Paroles, to receive his instructions * * *.'

The police pension board, having no knowledge of Tembruell's plea of guilty and the granting of probation, continued making the pension payments to him for more than a year. When, in November, 1958, the pension board learned of his plea of guilty, it ordered his payments stopped, deeming his plea of guilty to be a conviction under RCW 41.20.110, a statute regulating police pensions, which says:

'Whenever any person who shall have received any benefit from said fund shall be convicted of any felony, or shall become an habitual drunkard, or shall fail to report himself for examination for duty as required herein, unless excused by the board, or shall disobey the requirements of said board then such board shall order and direct that such pension or allowance that may have been granted to such person shall immediately cease, and such person shall receive no further pension or allowance or benefit under this chapter, but in lieu thereof the said pension or allowance or benefit may, at the discretion of the board, be paid to those immediately dependent upon him, or to his legally appointed guardian.'

Tembruell, following his release from the county jail remained at liberty on probation until June 7, 1961, at which time, upon his petition, the information charging him with grand larceny was ordered dismissed by the superior court. The order of dismissal, after reciting that defendant was of good conduct during probation, decreed that he be allowed to withdraw his plea of guilty and enter a plea of not guilty, and then provided:

'ORDERED, ADJUDGED AND DECREED That the above entitled cause charging the defendant herein with the crime of GRAND LARCENY be, and the same is hereby dismissed and the defendant is discharged from further attendance herein and is released from all penalties and disabilities resulting from the filing of said charge.' (Italics ours.)

August 31, 1961, Tembruell petitioned the pension board to reinstate his pension retroactive to December 1, 1958. Denial of both reinstatement and any retroactive effect thereof induced Tembruell to bring an action for a declaratory judgment, asserting that a deferred sentence coupled with dismissal of the charge did not constitute conviction of a felony. From a judgment restoring his pension retroactively, the pension board appeals.

Before looking into the effect of the plea of guilty upon collateral rights, we ought first inquire into the nature of the rights petitioner acquired under the pension statutes. A pension granted to one in the public service or employment is not a mere gratuity, bonus or expectancy nor simply a promissory commitment to a future obligation. Rather, it is a form of deferred compensation for services rendered and the rights in and to it commence to vest with the first day of employment or service, and continue to vest with each day's service thereafter. Bakenhus v. Seattle, 48 Wash.2d 695, 296 P.2d 536; Benedict v. Bd. of Police Pension Fund Com'rs, 35 Wash.2d 465, 214 P.2d 171, 27 A.L.R.2d 992; Luellen v. Aberdeen, 20 Wash.2d 594, 148 P.2d 849. Pension rights thus vesting from the inception become a property right and may not be divested except for reasons of the most compelling force.

Thus the statute (RCW 41.20.110) providing for discontinuance of the pension when the recipient has been convicted of any felony must be considered in connection with the rule that the right to the pension is a vested right in the nature of a property; and interpreted so as to avoid working a forfeiture of estate for conviction of a crime. Since neither party brought into question the constitutionality of this statute as working a possible forfeiture of estate for conviction of a crime (Art. 1, § 15, Wash. State Const.), we save that question for another day. In this connection, though, we deem it proper to observe that, where two interpretations of a statute are possible, one valid and the other unconstitutional, the court will give that effect to the questionable language which preserves its constitutionality (Martin v. Aleinikoff, 63 Wash.Dec.2d 841, 389 P.2d 422), it being presumed that the legislature intended to act within its constitutional powers. This enables us to narrow our problem to the question: Was respondent convicted of a felony within the meaning of the pension statute?

Power to defer the imposition of sentence as was done in this case is accorded the superior court in RCW 9.95.210, in conjunction with the power to grant probation. 'The court in granting probation, may suspend the imposing or the execution of the sentence', and we read this language to mean that if imposition of sentence has been suspended or deferred, no sentence has been imposed. The uncertainty of meaning arises not in the statute granting power to defer sentence, but in the employment of the word conviction elsewhere in the probation statutes. Thus, the beginning sentence of RCW 9.95.200 that 'After conviction by plea or verdict of guilty' ...