October 6, 2015
April 29, 2016.
Suffolk. Civil action commenced in the Superior Court
Department on December 19, 2012.
case was heard by Garry V. Inge, J., on motions for
judgment on the pleadings.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Paul T. Hynes ( Michael R. Keefe with him)
for the defendant.
Peter Sacks, State Solicitor ( Judith A.
Corrigan, Special Assistant Attorney General, with him)
for the plaintiff.
Ian O. Russell & Patrick N. Bryant for
Massachusetts Coalition of Police, amicus curiae, submitted a
(Sitting at New Bedford): Gants, C.J., Spina, Cordy,
Botsford, Duffly, Lenk, & Hines, JJ.
N.E.3d 670] Botsford, J.
Commonwealth's law governing public employee retirement
systems and pensions requires that a public employee forfeit
the retirement and health insurance benefits (retirement
allowance or pension) to which the employee would be entitled
upon conviction of a crime " involving violation of the
laws applicable to [the employee's] office or
position." G. L. c. 32, § 15 (4) (§ 15
). We consider here whether this
mandatory forfeiture of a public employee's retirement
allowance qualifies as a " fine" under the
excessive fines clause of the Eighth Amendment to the United
States Constitution. We conclude that it does and that, in
the circumstances of this case, the mandatory forfeiture of
the public employee's retirement allowance is "
Background. Edward A. Bettencourt was first
appointed as a police officer in the city of Peabody in
October, 1980, and became a member of the Peabody retirement
system on November 7, 1982. Bettencourt was promoted
to the rank of sergeant around 1990, and promoted again to
serve as a lieutenant in 2003. In the early morning hours of
December 25, 2004, Bettencourt was on duty as a watch
commander, and he knowingly accessed, through the Internet
and without permission, the Massachusetts human resources
division (HRD) computer system, and specifically the HRD
Internet site containing individual applicant record
Gaining the unauthorized access, he viewed the civil service
promotional examination scores of twenty-one other police
officers, including four officers who were his direct
competitors for a promotion to the position of captain in the
police department. In order to view the examination scores of
these other officers, Bettencourt created a distinct user
account for each officer, using the Social Security numbers
and birth dates of the officers.
October 26, 2006, Bettencourt was indicted for unauthorized
access to a computer system, in violation of G. L. c. 266,
§ 120F; the indictment contained twenty-one separate
counts. On April 4, 2008, at the conclusion of a jury-waived
trial before a judge in the Superior Court (trial judge),
Bettencourt was found guilty on all counts. Bettencourt
filed an application for voluntary superannuation retirement
[47 N.E.3d 671] with the Peabody retirement board (board) on
the same day he was found guilty. As of that date, he had
served as a Peabody police officer for over twenty-seven
years and had been a member of the Peabody retirement system
for over twenty-five years. On May 23, 2008, after learning
of Bettencourt's convictions, the board held an
evidentiary hearing to determine whether, because of these
convictions, Bettencourt remained eligible for his retirement
allowance. A majority of the board concluded that none of the
convictions was a " violation of the laws applicable to
his office or position" under § 15 (4), and, thus,
his application for superannuation retirement was to be
processed, subject to the approval of the public employee
retirement administration commission (PERAC). On September
10, 2008, PERAC denied Bettencourt's retirement
application because it concluded that Bettencourt's
criminal convictions did relate to his office or position,
and therefore, under § 15 (4), he was not entitled to
receive any retirement allowance.
sought certiorari review of PERAC's decision in the
Peabody Division of the District Court Department, arguing
that his convictions did not trigger the forfeiture mandated
by § 15 (4) because they were not related to his office
and, alternatively, that the forfeiture of his pension would
constitute an " excessive fine" in violation of the
Eighth Amendment. A judge in the District Court concluded
that Bettencourt's convictions were not sufficiently
related to his office or position as to trigger forfeiture
under § 15 (4), and, therefore, the judge did not reach
the " excessive fine" argument. PERAC sought
certiorari review of the judge's decision in the Superior
Court. A Superior Court judge affirmed the District Court
decision, and PERAC appealed to the Appeals Court. In a
memorandum and order pursuant to its rule 1:28, the Appeals
Court, concluding that Bettencourt's convictions were
linked directly to his office or position, vacated the
judgment and remanded the case to the District Court for
consideration of Bettencourt's alternative argument that
forfeiture of his pension constituted an excessive fine.
Public Employee Retirement Admin. Comm'n v.
Bettencourt, 81 Mass.App.Ct. 1113, 961 N.E.2d 620
remand, the District Court judge concluded that forfeiture of
a retirement allowance pursuant to § 15 (4) was a fine
under the Eighth Amendment and that the fine in this case,
forfeiture of Bettencourt's lifetime retirement
allowance, as compared to the harm suffered by the other
officers and the public, was excessive and violated the
Eighth Amendment. PERAC again sought certiorari review in the
Superior Court. In an amended decision dated February 6,
2014, a Superior Court judge reversed, ruling that forfeiture
of an employee's pension rights under § 15 (4) does
not constitute a fine for purposes of the Eighth Amendment
because " the right to a pension is conditioned on not
incurring criminal convictions related to public
service." Bettencourt filed a timely appeal in the
Appeals Court, and we transferred the case to this court on
our own motion.
Discussion. General Laws c. 32, § 15 (4),
" Forfeiture of pension upon misconduct. -- In
no event shall any member [of [47 N.E.3d 672] a 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 under
the provisions of [G. L. c. 32, § § 1 through 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."
juncture, Bettencourt does not challenge the Appeals
Court's conclusion that his convictions under G. L. c.
266, § 120F, involved violations of a law "
applicable to his office or position" within the meaning
of § 15 (4), and, thus, triggered imposition of the
section's forfeiture provisions. Rather, he focuses
solely on his Eighth Amendment claim. That claim has two
parts: (1) the forfeiture of his pension under § 15 (4)
by its terms qualifies as a fine; and (2) the fine is
excessive. This court has considered the claim's second
part, excessiveness, in two previous cases, MacLean v.
State Bd. of Retirement, 432 Mass. 339, 347-350, 733
N.E.2d 1053 (2000), and Maher v. Retirement Bd. of
Quincy, 452 Mass. 517, 523-525, 895 N.E.2d 1284 (2008),
cert. denied, 556 U.S. 1166, 129 S.Ct. 1909, 173 L.Ed.2d 1058
(2009). We have never addressed the threshold
question whether the forfeiture of a public employee's
pension under § 15 (4) is a " fine" under the
Eighth Amendment. We consider that question first.
Is the forfeiture required by § 15 (4) a fine ?
a. Property requirement. As it noted in United
States v. Bajakajian, 524 U.S. 321, 327, 118 S.Ct. 2028,
141 L.Ed.2d 314 (1998),
the United States Supreme Court has had " little
occasion" to interpret the Eighth Amendment's
excessive fines clause. In that case, following the lead of
[47 N.E.3d 673] two earlier decisions, the Court explained
that " at the time the Constitution was adopted,
'the word " fine" was understood to mean a
payment to a sovereign as punishment for some
offense.'" Id. at 327, quoting
Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal,
Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 106 L.Ed.2d 219
(1989). A fine may involve the payment of
money to the government, but as Bajakajian makes
clear, the forfeiture of property also may qualify as a
fine. Moreover, the Supreme Court has held
that the excessive fines clause does not apply solely to
criminal cases, such as Bajakajian ; a civil
forfeiture proceeding in which the government seeks the
forfeiture of particular property on account of its
owner's conviction of a crime also implicates the clause.
See Austin v. United States, 509 U.S. 602, 608-610,
618, 621-622, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (civil
proceeding initiated by government seeking to forfeit auto
body shop and mobile home as instrumentalities of drug
offense to which property owner pleaded guilty; forfeiture
sought by government qualified as fine under Eighth
Amendment). " The Excessive Fines Clause thus
'limits the government's power to extract payments,
whether in cash or in kind, " as punishment for some
offense." ' ... Forfeitures -- payments in kind --
are thus 'fines' if they constitute punishment for an
offense." Bajakajian, supra at 328,
quoting Austin, supra at 609-610.
decide whether the forfeiture of Bettencourt's pension
qualifies as a fine under the Supreme Court's definition,
the first question to be answered is whether the forfeiture
operates to " extract payments" from him -- that
is, requires the transfer of
money or some other form of property of Bettencourt's to
the government. See Hopkins v. Oklahoma Pub. Employees
Retirement Sys., 150 F.3d 1155, 1162 (10th Cir. 1998)
(considering forfeiture of retired State employee's
pension as result of criminal bribery conviction: "
Implicit in [the Supreme Court's] interpretation of the
Excessive Fines Clause is the notion that it applies only
when the payment to the government involves turning over
'property' of some kind that once belonged to [the
response to this first question, Bettencourt contends that
the mandatory forfeiture under § 15 (4) has required him
to transfer or turn over property -- his right to receive his
retirement allowance -- to the Commonwealth. PERAC, on the
other [47 N.E.3d 674] hand, argues that Bettencourt had no
property interest in the retirement allowance being
forfeited. Rather, in PERAC's view, Bettencourt, as a
member of the Peabody retirement system, had only a future
interest in receiving retirement allowance payments, one that
was wholly contingent on his not being convicted of a crime
involving misconduct in office, and " contingent, future
interests are not property."
not share PERAC's view. Under the Commonwealth's
contributory retirement system, the relationship between a
member and the system is contractual. See G. L. c. 32, §
25 (5). However, we previously have noted
that in this context, the term
" '[c]ontract' (and related terms such as
rights, benefits, protection) should be understood ... in a
special, somewhat relaxed sense. ... It is not really
feasible -- nor would it be desirable -- to fit so complex
and dynamic a set of arrangements as a statutory retirement
scheme into ordinary contract
law which posits as its model a joining of the wills of
mutually assenting individuals to form a specific bargain.
... When, therefore, the characterization 'contract'
is used, it is best understood as meaning that the retirement
scheme has generated material expectations on the part of
employees and those ...