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SJC-12069
STATE BOARD OF RETIREMENT vs. THOMAS M. FINNERAN & others. 1
Suffolk. December 8, 2016. - April 5, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, & Budd,
JJ. 2
Retirement. State Board of Retirement. Public Employment,
Forfeiture of retirement benefits. Constitutional Law,
Excessive fines clause. Practice, Civil, Action in nature
of certiorari.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on December 4, 2015.
The case was reported by Lenk, J.
David R. Marks, Assistant Attorney General, for the
plaintiff.
Nicholas Poser (Thomas R. Kiley also present) for Thomas M.
Finneran.
1
Justices of the Dorchester Division of the Boston
Municipal Court Department, as nominal parties.
2
Justice Botsford participated in the deliberation on this
case prior to her retirement.
2
LENK, J. Former Speaker of the House Thomas Finneran
pleaded guilty in the United States District Court in 2007 to
one count of obstruction of justice in violation of 18 U.S.C.
§ 1503. The obstruction of justice conviction related to false
testimony that he had provided in relation to a Federal court
action challenging the 2001 redistricting act, St. 2001, c. 125
(redistricting act). Finneran had played a significant role in
the development of the redistricting act from the point of its
inception but denied under oath that he had played any part in
its development. Indeed, he testified that he had not even seen
the plan before it was released to the full House of
Representatives.
After his conviction, Finneran was informed by the State
Retirement Board (board) that his crime constitutes a "violation
of the laws applicable to his office or position," pursuant to
G. L. c. 32, § 15 (4), requiring the forfeiture of his pension.
Finneran appealed from the board's determination to the Boston
Municipal Court. A Boston Municipal Court judge reversed,
discerning no direct link between Finneran's "conviction and his
position as a Member and/or Speaker of the House." We reach the
opposite conclusion, and accordingly reverse the decision of the
Boston Municipal Court judge and affirm the conclusion of the
board.
3
1. Background. 3 Finneran was first elected to the House of
Representatives in 1978, as the representative of the Twelfth
Suffolk District. Thereafter, he was reelected every two years,
and concurrently served as Speaker of the House from 1996 until
his resignation in 2004.
In 2001, Finneran played a key role in shepherding the
Commonwealth through the redistricting process pursuant to the
2000 decennial United States census. The Legislature bore the
responsibility of revising the Commonwealth's legislative
districts to account for the change in population reflected in
the census. Toward that end, the Legislature established a
joint committee (committee) comprised of members of the Senate
and House of Representatives to put together a redistricting
plan. Finneran, as Speaker, appointed the House members of the
committee. He also took part in the planning process and was
consulted in regard to "virtually all" of the difficult
decisions concerning the committee's redistricting plan.
One week before the plan was released to the full House,
Finneran convened and attended a meeting concerning the
redistricting plan. At that meeting, he reviewed the proposed
plan in detail and suggested several changes to it that
3
The facts, which the parties do not materially dispute,
are taken from the Boston Municipal Court judge's decision and
the administrative record, including the plea colloquy in the
Federal court.
4
pertained to his own district, at least some of which became
part of the final redistricting plan. In the days leading up to
the release of the plan, Finneran met with several of his fellow
House members and explained to them how it would affect their
districts. Shortly after the joint committee released the
redistricting plan to the full House, then Acting Governor Jane
Swift signed the redistricting act, enacting the plan into law
on November 8, 2001. 4 The redistricting act, among other things,
increased the proportion of eligible white voters in Finneran's
House district.
In June, 2002, a group of African-American and Latino
voters filed a lawsuit in the United States District Court for
the District of Massachusetts against Finneran, then Secretary
of the Commonwealth William Galvin, and Acting Governor Swift, 5
challenging the redistricting act as it applied to House
districts in the Boston area. They contended that the House
districts were redrawn with the purpose of limiting the voting
power of African-American and Latino voters, in violation of the
equal protection clause of the Fourteenth and Fifteenth
Amendments to the United States Constitution, and that the
redistricting act had a discriminatory effect against such
4
The plan did not change significantly between the time it
was released to the full House and when it was signed into law.
5
The plaintiffs sued all of the defendants in their
official capacities.
5
voters in violation of the Voting Rights Act, 42 U.S.C.
§ 1973(b). In particular, they argued that Finneran's Twelfth
Suffolk District was redrawn to decrease the number of minority
voters in the district and "super-pack" the neighboring Sixth
Suffolk District with African-American, Latino, and other
minority voters. In May, 2003, the plaintiffs filed an amended
complaint naming only Secretary Galvin as a defendant. The case
was tried before a three-judge panel appointed by the Chief
Judge of the United States Court of Appeals for the First
Circuit.
Finneran was deposed during the course of the lawsuit, and
testified voluntarily on behalf of the defense in
November, 2003. The plaintiffs cross-examined Finneran on,
among other things, the role he played in relation to the
formation of the redistricting act and, in particular, any
effort he had undertaken or role he had had in facilitating the
changes made to his House district. In his testimony, Finneran
conceded that he had engaged in communications with the House
members on the redistricting committee, but denied any
substantive knowledge of the redistricting plan prior to its
publication to the full House. When asked whether he had
reviewed "any of the redistricting plans as the process
proceeded," Finneran responded, "Not as the process proceeded.
No sir." Finneran subsequently falsely testified that he first
6
saw the redistricting plan after it was released to the full
House.
In February, 2004, the Federal District Court panel ruled
for the plaintiffs on the ground that the redistricting act had
resulted in a discriminatory impact on African-American voters,
in violation of the Voting Rights Act. Black Political Task
Force v. Galvin, 300 F. Supp. 2d 291, 294 (D. Mass. 2004). 6 The
panel also stated in a footnote that "[a]lthough Speaker
Finneran denied any involvement in the redistricting process,
the circumstantial evidence strongly suggests the opposite
conclusion." Id. at 295 n.3. One year later, in June, 2005, a
Federal grand jury indicted Finneran on three counts of perjury
and one count of obstruction of justice in relation to his false
deposition testimony. 7 On January 5, 2007, Finneran pleaded
6
As a result of this conclusion, the court did not reach
the plaintiffs' constitutional arguments. Black Political Task
Force v. Galvin, 300 F. Supp. 2d 291, 294 (D. Mass. 2004).
7
The charge of obstruction of justice alleged that Finneran
had provided "misleading and false statements" in his testimony
concerning
"(a) whether [he] had reviewed and seen a redistricting
plan before the [c]ommittee plan was filed with the Clerk
of the House of Representatives . . . ; (b) when [Finneran]
first had information about the [c]ommittee's proposed
changes to the [Twelfth] Suffolk District . . . ;
(c) whether [Finneran] spoke with [the committee chairman]
about any matters relating to the configuration of the
[Twelfth] Suffolk District . . . ; (d) whether [Finneran]
had knowledge of the scope of the work performed by
[attorney] Lawrence DiCara in the crafting of the
7
guilty to obstruction of justice, in violation of 18 U.S.C. §
1503, and received a sentence of eighteen months of probation
and a $25,000 fine. 8
In January, 2007, the board ceased payments of Finneran's
pension on the ground of his conviction, pursuant to G. L.
c. 32, § 15 (4). 9 Following a hearing in April, 2012, the
hearing officer concluded that Finneran's pension is forfeit
under G. L. c. 32, § 15 (4), because he had "been convicted of a
[c]ommittee plan . . . ; (e) whether [Finneran] had
information within his custody and control regarding the
racial characteristics of the precincts he lost in
redistricting and the precincts he gained in redistricting,
other than that to which he testified in his deposition
. . . ; (f) the extent of [Finneran's] knowledge, at the
time of his deposition, regarding what neighborhoods were
removed from the [Twelfth] Suffolk District during
redistricting, [and] the areas that were added to the
[Twelfth] Suffolk District during redistricting . . . ; and
(g) whether [Finneran] had within his custody and control a
calendar which recorded campaign activities or events,
including fundraisers, held by or on his behalf . . . ."
8
The three perjury charges were dismissed as part of
Finneran's plea bargain.
9
General Laws c. 32, § 15 (4), provides:
"In no event shall any member after final conviction
of a criminal offense involving violation of the laws
applicable to his office or position, be entitled to
receive a retirement allowance under the provisions of [§§
1 to 28], inclusive, nor shall any beneficiary be entitled
to receive any benefits under such provisions on account of
such member. The said member or his beneficiary shall
receive, unless otherwise prohibited by law, a return of
his accumulated total deductions; provided, however, that
the rate of regular interest for the purpose of calculating
accumulated total deductions shall be zero."
8
criminal offense involving violation of the laws applicable to
his office or position." The hearing officer's conclusion
rested on three primary grounds: (1) Finneran had testified in
his official capacity; (2) the "subject matter of his testimony
was . . . directly tied to his official duties;" and
(3) "Finneran’s duties as a legislator and the mandate of his
oath [to uphold the Constitution of the United States and the
Constitution of the Commonwealth] . . . gave him a heightened
obligation to be forthcoming with the Court" given that the case
concerned the right to vote. The board subsequently voted to
accept the hearing officer's decision.
Finneran appealed to the Boston Municipal Court under G. L.
c. 32, § 16 (3). A Boston Municipal Court judge reversed the
board's decision, concluding that Finneran's conviction does not
bear "a direct factual link to his position as a House Member
and/or Speaker" and that "there is no substantial evidence to
support the [b]oard's conclusion that Finneran's conviction
violated a core function of his position as a House Member
and/or Speaker because there is no evidence in the record of any
code, rule or law applicable to Finneran's public position that
connects his conviction with his office." The board filed a
complaint in the nature of certiorari in the county court,
pursuant to G. L. c. 249, § 4, asserting that the Boston
Municipal Court judge had committed an error of law in ruling
9
that there is no "direct link between the criminal offense
Finneran committed . . . and his official duties as a Member and
Speaker of the Massachusetts House of Representatives." A
single justice reserved and reported the matter to the full
court.
2. Discussion. The primary question before us is whether
Finneran's pension is subject to forfeiture under G. L. c. 32,
§ 15 (4). Finneran also contends that, even if we were to
determine that forfeiture is appropriate under the statute, it
nonetheless would constitute an excessive fine in violation of
the Eighth Amendment to the United States Constitution. We
consider each issue in turn.
a. Standard of review. General Laws c. 249, § 4,
"provides for limited judicial review in the nature of
certiorari to correct errors of law in administrative
proceedings where judicial review is otherwise
unavailable." State Bd. of Retirement v. Bulger, 446 Mass. 169,
173 (2006) (Bulger). We may "correct only a substantial error
of law, evidenced by the record, which adversely affects a
material right of the plaintiff . . . [and] may rectify only
those errors of law which have resulted in manifest injustice to
the plaintiff or which have adversely affected the real
interests of the general public." Garney v. Massachusetts
Teachers' Retirement Sys., 469 Mass. 384, 388 (2014),
10
quoting Massachusetts Bay Transp. Auth. v. Auditor of the
Commonwealth, 430 Mass. 783, 790 (2000).
b. Forfeiture pursuant to G. L. c. 32, § 15 (4). The
gravamen of the board's argument is that Finneran's conviction
of obstruction of justice concerns a "violation of the laws
applicable to his office or position" under G. L. c. 32,
§ 15 (4), and that his pension is thereby forfeit. General Laws
c. 32, § 15 (4), provides that "[i]n no event shall any member
[of the State employees’ retirement system] after final
conviction of a criminal offense involving violation of the laws
applicable to his office or position, be entitled to receive a
retirement allowance."
Our review of G. L. c. 32, § 15 (4), "is guided by the
familiar principle that 'a statute must be interpreted according
to the intent of the Legislature ascertained from all its words
construed by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment, the
mischief or imperfection to be remedied and the main object to
be accomplished, to the end that the purpose of its framers may
be effectuated.'" Retirement Bd. of Somerville v. Buonomo, 467
Mass. 662, 668 (2014) (Buonomo), quoting Hanlon v. Rollins, 286
Mass. 444, 447 (1934). Section 15 (4) "is considered to be
penal" in nature, and "its language must be construed narrowly,
11
not stretched to accomplish an unexpressed result." See Bulger,
446 Mass. at 174-175.
Section 15 (4) was enacted in response to this court's
decision in Collatos v. Boston Retirement Bd., 396 Mass. 684
(1986), and was adopted to "broaden the range of crimes that
would lead to pension forfeiture." See Gaffney v. Contributory
Retirement Appeal Bd., 423 Mass. 1, 3 (1996). In that case, we
observed that § 15 (4) was not meant to "operate only in cases
of violations of highly specialized crimes addressing official
actions," nor to facilitate forfeiture "as a sequelae of any and
all criminal convictions." Id. at 4-5. Rather, "[l]ooking to
the facts of each case for a direct link between the criminal
offense and the member's office or position best effectuates the
legislative intent of § 15 (4)." Id. at 5. "This 'direct link'
requirement 'does not mean that the crime itself must reference
public employment or the employee's particular position or
responsibilities,' . . . or that the crime necessarily must have
been committed at or during work." See Garney, 469 Mass. at
389, quoting Maher v. Justices of the Quincy Div. of the Dist.
Court Dep't, 67 Mass. App. Ct. 612, 616 (2006). Rather, the
"substantive touchstone intended by the General Court is
criminal activity connected with the office or
position." Gaffney, 423 Mass. at 4.
12
The "direct link" standard discussed in Gaffney blossomed
into two separate lines of cases concerning when forfeiture
under § 15 (4) would be appropriate. What has emerged are two
recognized types of "direct links" between a public employee's
position and the crime committed: factual links and legal
links.
i. Factual links. In cases involving factual links, a
public employee's pension is subject to forfeiture under
§ 15 (4) only where there is a direct factual connection between
the public employee's crime and position. See Gaffney, 423
Mass. at 4-5 (superintendent of municipal water and sewer
department who stole money from town was subject to pension
forfeiture); Durkin v. Boston Retirement Bd., 83 Mass. App. Ct.
116, 116-117, 119 (2013) (police officer who used department-
issued firearm to shoot fellow officer while off duty was
subject to pension forfeiture); Maher, 67 Mass. App. Ct. at 613,
616-617 (city employee who broke into city hall and stole
documents from his personnel file was subject to pension
forfeiture). Contrast Garney, 469 Mass. at 385-386, 389-391 (no
forfeiture where teacher purchased and stored child pornography
on home computer because no connection to either his students or
school property); Retirement Bd. of Maynard v. Tyler, 83 Mass.
App. Ct. 109, 109, 112-113 (2013) (no forfeiture where fire
fighter sexually abused children because acts occurred off duty
13
outside of fire house and fire fighter did not use "his
position, uniform, or equipment for the purposes of his indecent
acts"); Herrick v. Essex Regional Retirement Bd., 77 Mass. App.
Ct. 645, 646-647, 654-655 (2010) (no forfeiture where housing
authority custodian committed indecent assault and battery on
daughter because offense not committed on housing authority
property nor against any residents there, and did not bear other
connection to custodian's position).
ii. Legal links. The other line of cases, involving
direct legal links, mandates forfeiture under § 15 (4) when a
public employee commits a crime directly implicating a statute
that is specifically applicable to the employee's position.
See Buonomo, 467 Mass. at 664-666, 670-671 (pension forfeiture
where register of probate embezzled funds in violation of Code
of Professional Responsibility for Clerks of Courts); Bulger,
446 Mass. at 177-180 (same with respect to clerk-magistrate who
committed perjury and obstruction of justice). Contrast Garney,
469 Mass. at 393 ("Criminal conduct that is merely inconsistent
with a concept of special public trust placed in the position or
defiant of a general professional norm applicable to the
position, but not violative of a fundamental precept of the
position embodied in a law applicable to it . . . is
insufficient to justify forfeiture under G. L. c. 32,
§ 15 [4]"). The requisite direct legal link is shown where the
14
crime committed is "contrary to a central function of the
position as articulated in applicable laws." Id. at 391.
iii. Analysis. Finneran's conduct falls squarely within
the first category, requiring forfeiture where there is a direct
factual link between the public employee's position and the
offense. 10 Finneran's false testimony concerning his knowledge
of and participation in the redistricting planning process is in
at least two respects directly linked as a factual matter to his
position as Speaker of the House.
First and foremost, Finneran's false testimony directly
concerns and relates to his work on the redistricting plan as
Speaker of the House. Unlike those cited cases where a public
employee's crime bore no relationship to his office or position,
see, e.g., Garney, 469 Mass. at 389, Finneran's crime directly
concerns actions that he had carried out when he served as
Speaker, in his role as Speaker. He worked on the redistricting
plan in his capacity as Speaker and later testified falsely
about it. On its face, this connection is enough to create a
10
Because we conclude that Finneran's conviction bears a
direct factual link to his position as Speaker of the House, we
do not address the question whether there is a direct legal link
between the offense and his position.
15
"direct link between the criminal offense and [Finneran's] . . .
11
position." See Gaffney, 423 Mass. at 5.
Another factual link between Finneran's crime and his
position as Speaker of the House is his admitted motivation for
its commission. It had been alleged that the plan was adopted
in order to dilute minority representation in a number of House
districts, including Finneran's own district. 12 By his own
account, Finneran provided his false testimony to vindicate his
conduct as Speaker of the House regarding the redistricting
plan. This further underscores the factual connection between
Finneran's false testimony and his work on the redistricting
plan as Speaker of the House.
Finneran contends that forfeiture is inappropriate because
his offense does not fall within the scope of his duties as
11
It is irrelevant whether Finneran's work on the
redistricting process was a necessary part of his duties as
Speaker of the House. That he in fact played an integral part
in the redistricting process through his role as Speaker is what
creates the direct link to his false testimony.
12
During his plea colloquy, Finneran stated:
"The accusations contained in the civil suit, your
Honor, I found very, very troubling. For [twenty-six]
years I had represented a district that was overwhelmingly
African-American, and I took great pride in my service of
this district. The accusations spoke to -- the plaintiff's
civil suit spoke and alleged a deliberate racial
manipulation in order to depress or suppress legitimate
efforts at minority representation. I was offended by the
accusation. I was angered by it, and I think, quite
frankly, your Honor, it has led to this entire series of
events which brings us here today."
16
Speaker of the House. This argument is unavailing. While
Finneran's offense itself does not directly implicate his duties
as Speaker of the House, 13 it is nonetheless inextricably
intertwined with his position. Simply put, it is only because
he had been Speaker of the House at the relevant time that he
was in a position to testify as to the genesis of the
redistricting plan and to do so falsely. This connection is
enough to warrant forfeiture under § 15 (4). See, e.g., Maher,
67 Mass. App. Ct. at 616-617 (forfeiture proper where public
employee broke into city hall and stole his personnel records).
Given this, Finneran's conviction of obstruction of justice is a
"violation of the laws applicable to his office or position,"
pursuant to § 15 (4), and accordingly requires the statutory
forfeiture of his pension.
c. Eighth Amendment claim. Finneran also contends that
should we conclude, as we have, that his pension is forfeit
pursuant to § 15 (4), such a penalty would be an excessive fine
in violation of the Eighth Amendment. 14 He relies in this regard
13
Nothing in the record suggests that Finneran testified in
his official capacity as Speaker of the House or that he was in
any way obligated to testify pursuant to his duties as the
Speaker of the House.
14
The Eighth Amendment to the United States Constitution
provides: "Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted."
The Eighth Amendment is applicable to the States through the due
process clause of the Fourteenth Amendment to the United States
17
upon our recent decision in Public Employee Retirement Admin.
Comm'n v. Bettencourt, 474 Mass. 60 (2016) (Bettencourt).
There, we determined that the forfeiture of a police officer's
pension, worth at least $659,000, which was due to an offense
for which he was given a $10,500 fine, without probation or
prison time, violated the Eighth Amendment. Id. at 71-75. Not
having raised this argument below, Finneran is precluded from
raising the issue on appeal. See Commonwealth v. Rivera, 429
Mass. 620, 623 (1999). Nonetheless, even if Finneran had
preserved the issue, the result would be the same.
"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." Bettencourt, 474 Mass. at 72, quoting United States
v. Bajakajian, 524 U.S. 321, 334 (1998). In applying this
standard, we first consider the amount of the
forfeiture. Bettencourt, supra. We then "gauge the degree of
[Finneran's] culpability and, in that regard, . . . [1] consider
the nature and circumstances of his offenses, [2] whether they
were related to any other illegal activities, [3] the aggregate
Constitution. See Cooper Indus., Inc. v. Leatherman Tool Group,
Inc., 532 U.S. 424, 433-434 (2001).
18
maximum sentence that could have been imposed, and [4] the harm
resulting from them." Id., citing Bajakajian, supra at 337-339.
In considering the amount of the forfeiture, Finneran
relies on the Public Employee Retirement Administration
Commission's determination that the present value of his "future
benefits as of his retirement date was approximately $433,400." 15
We apply to that figure the four-factor standard from Bajakajian
for gauging proportionality under the Eighth Amendment. As to
the first and second factors, Finneran was convicted of a
felony, viz., obstruction of justice, his crime consisting of
false testimony as to his involvement in a redistricting process
that was later found to be in violation of the Voting Rights
Act. 16 With regard to the third factor, the maximum penalty for
Finneran's crime was "a period of imprisonment of ten years, a
$250,000 fine, a period of three years of supervised release, a
five year period of probation, and a $100 special assessment."
Fourth, given that the plaintiffs prevailed in the judicial
proceeding, little apparent harm flowed from Finneran's crime.
15
The board disputes this amount and points out that
Finneran's failure to raise this argument below means that the
value of his pension has never been presented to a judicial fact
finder.
16
We note that the United States District Court panel held
that the redistricting plan had a discriminatory impact on
African-American voters, but did not conclude that the plan was
enacted with discriminatory intent. Black Political Task Force,
300 F. Supp. 2d at 315-316.
19
The gravity of Finneran's offense and the maximum potential
penalty for it distinguish his crime from the circumstances
of Bettencourt. That case involved a forfeiture of at least
$659,000 in pension benefits, plus health benefits, following a
series of misdemeanor offenses, 17 which did not relate to any
other illegality, and carried an aggregate maximum penalty of
630 days imprisonment and a fine of $21,000. See Bettencourt
474 Mass. at 72-74. In stark contrast, Finneran's offense is a
felony connected to a redistricting plan which violated Federal
law, carrying a maximum penalty that includes ten years'
imprisonment and a $250,000 fine. The forfeiture of $433,400 in
pension payments pursuant to § 15 (4) therefore does not qualify
as an excessive fine in violation of the Eighth Amendment.
3. Conclusion. The case is remanded to the county court
where an order shall enter reversing the judgment of the Boston
Municipal Court, affirming the decision of the board, and
remanding to the Boston Municipal Court for further proceedings
consistent with this opinion.
So ordered.
17
The case involved a police officer who unlawfully
accessed the civil service promotional examination scores of
twenty-one of his fellow officers in violation of G. L. c. 266,
§ 120F. See Public Employee Retirement Admin. Comm'n v.
Bettencourt, 474 Mass. 60, 61-62 (2016).