West Virginia Public Employees Retirement System v. Dodd

NEELY, Chief Justice,

dissenting:

I find that the statute upheld today confounds constitutional notions of proportionality because it imposes a penalty with no regard to the character and degree of the offence committed. There is only one penalty, forfeiture of the entire pension. The severity of the penalty perversely increases in proportion to time the employee has worked for the State, rather than in proportion to the transgressor’s culpability. In practical effect, then, the State exacts a far higher penalty from someone who has worked for the State for thirty-two years and can no longer rearrange his life in old age, than it does from a young person who has worked only five years and can more easily bear the penalty.

The concept of disproportionality is explicitly recognized in W. Va. Const., art. Ill, § 5, “Penalties shall be proportioned to the character and degree of the offence.” The same Constitutional provision contains prohibitions against excessive bail, excessive fines, cruel and unusual punishment, banishment, double jeopardy, and compulsory self-incrimination. These are among the most important of human rights. In State ex rel. Harris v. Calendine, 160 W.Va. 172, 233 S.E.2d 318 (1977), we applied W.Va. Const., art. Ill, § 5 to a penal scheme concerning juveniles and said, “[a] good starting point for applying the cruel and unusual punishment standard ... is the concept of disproportionality.” 160 W.Va. at 190-91, 233 S.E.2d at 330.

Disproportional punishment was one of the most powerful criticisms leveled against the otherwise exemplary British legal system of the eighteenth century, when there were over 200 crimes punishable by death. With the Eighth Amendment to the Constitution of the United States, our Founding Fathers demonstrated that their concern with disproportionality extended to fines as well as physical punishments, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” When the drafters of the West Virginia Constitution mandated that “penalties shall be proportioned to the character and degree of the offence”, they expressed a principle that is legally binding on the legislature when it enacts statutory penalties.

If a state employee in his fifth year of employment is convicted of extortion and embezzlement, he loses his pension. Another employee, who has dedicated thirty years of his life to honorable State employment but takes one bribe, suffers a penalty six times greater. Yet we do not punish petty larceny the same as armed robbery. We do not punish indecent exposure the same as aggravated rape. I do not doubt that the majority would strike down any statute that set a mandatory sentence for petty larceny equal to the mandatory sentence for armed robbery. Why then do we allow this statute to stand? I do not reach the issue of whether the statute as applied in this particular case works an intolerable injustice. Under a constitutional statute, that would be an issue to be addressed at an evidentiary hearing where appropriate penal principles would be applied.

Some may argue that W. Va. Const., art. Ill, § 5, was meant to apply only to punishment meted out by the criminal justice system. I cannot construe the constitutional provision so narrowly. The State discusses two New Jersey cases involving termination of a public employee’s pension, Uricoli v. Board of Trustees, 91 N.J. 62, 449 A.2d 1267 (1982), and Eyers v. State of New Jersey, 91 N.J. 51, 449 A.2d 1261 (1982), and admits in its brief that these cases stand for the proposition that a forfeiture statute is penal in nature and must be strictly construed. When the State takes away accrued pension rights with the goal of keeping its employees on the *555straight and narrow, it is performing the same function as our criminal justice system.

Unlike a criminal trial, however, the procedure whereby the State takes away pension benefits allows no opportunity for mitigating factors to lessen the penalty. Yet, in Comm. on Legal Ethics v. Boettner, 183 W.Va. 136, 394 S.E.2d 735 (1990), this Court held that a license to practice law could not be withdrawn without due process, and that due process required that an attorney, already criminally convicted, must be given the right to an evidentiary hearing at which he could introduce mitigating factors that might bear on the State Bar sanction to be imposed. If we believe that it is unfair to deprive a lawyer of his license without an opportunity to present mitigating factors to lessen the penalty, how can we not be bothered by a statute that works an equal injustice?

Some may argue that when the State takes away pension rights, it is not taking away a property interest belonging to the employee. Such an argument is utterly wrong, at least in light of this Court’s decision in Dadisman v. Moore, 181 W.Va. 779, 384 S.E.2d 816 (1988). In Dadisman v. Moore, we firmly established that accrued pension rights are a property interest of the employee. Syl. pt. 4 states:

“When a public employee renders services he earns the employers’ matching contribution to the retirement trust fund, and his contributions and these earned employer contributions, plus the accrued interest from both, constitute the corpus of the pension trust, and the retirement entitlements earned are deferred compensation for these public employees.”

Thus, when the State takes away a pension, it takes away the employee’s rights in property, yet the amount that it takes has no relation to the character and degree of the offence, but rather is determined by how many years the employee has worked to earn the pension.

It is, however, possible to imagine a less objectionable application of the challenged statute. If an employee began working for the State after the enactment of the statute on 13 March 1976, then the statute could be seen as part of his employment agreement. Because the 1976 statute specifically states that honorable service is a condition to receiving any pension, we could reconcile this statute with Dadisman v. Moore, but only with regard to those employees who began working for the State after 13 March 1976. However, we cannot apply the new condition on pension benefits to rights accrued before 13 March 1976. In other words, the State could not, in 1976, unilaterally alter employment agreements that it entered into as early as 1961, when the Public Employees Retirement System was started.

The legislature may have sensed that taking away pension benefits accrued before the passage of W.Va.Code, 5-10A-9 [1976] would be wrong, because as part of its 1976 act it included a rule of construction intended as a saving provision.1 The saving provision provided that if a court found the act to deprive a person of a property right already vested and indefeasible as of 13 March 1976, the act would still apply to pension benefits vesting after the date of enactment. W.Va.Code, 5-10A-9 [1976]. In light of Dadisman v. Moore, this Court should protect all pension benefits accrued as of 13 March 1976.

In 1961, when the Public Employees Retirement System (PERS) was first established, Mr. Dodd and many others entered into a contract with the State, whereby they would work and make payments to*556ward a pension, and, in return, the State agreed to pay them a pension upon retirement. The State notes that in 1963, the legislature enacted W.Va.Code, § 5-10-49 [1963], quoted at footnote number five of the Court’s opinion, whereby the state would take the pension away from a “public official” who was removed from office on account of dishonorable conduct involving his office. However, the provision applied only to public officials, not to the rank and file. After the 1963 enactment, many state employees continued to work with the understanding that part of their pay was in the form of a pension, never suspecting that the pensions they were earning then would be in jeopardy someday. Many never dreamed that they would rise to the level of officials, nor that if they became officials they would ever commit a dishonorable act that would forfeit their pensions. Certainly, few imagined that someday a statute would be enacted that would take away all of their accrued pension for one bad act late in their careers.

In 1976, the legislature, in a fit of righteous indignation, decided to stamp out corruption among all state employees with the March 13th Act. However noble its end, the means it chose violate our State Constitution’s requirement of proportional penalties, and the Court makes a serious error when it allows the statute to stand.

. W.Va.Code, § 5-10A-9 states:

If any provision of this article is determined to deprive a person of any property right which is vested and is indefeasible as of the effective date of this article [March 13, 1976], the provisions of this article shall nonetheless be effective as to any benefits or a part of any benefit under a retirement plan which shall be deemed to vest on or after the effective date of this article; and the right to receive any benefit under á retirement plan, which right shall vest on or after the effective date of this article, is hereby conditioned upon the full compliance and observance of the provisions hereof and the rendering of honorable service throughout the service in public employment or public office in respect of which such benefit is payable.