NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4289-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BENNIE ANDERSON,

Defendant-Appellant.

_______________________

Submitted January 27, 2020 – Decided 

Before Judges Sabatino, Sumners and Natali.

On appeal from the Superior Court of New Jersey, 

Law Division, Mercer County, Docket No. L-0600-19.

Miller, Meyerson & Corbo, attorneys for appellant 

(Nirmalan Nagulendran and Gerald D. Miller, on the 

briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Steven K. Cuttonaro, Deputy Attorney 

General, of counsel and on the brief).

The opinion of the court was delivered by

NATALI, JR., J.A.D.

Defendant Bennie Anderson appeals from that portion of a Law 

Division order compelling the forfeiture of his entire pension earned while 

March 30, 2020

APPROVED FOR PUBLICATION

March 30, 2020

APPELLATE DIVISION
A-4289-18T3 2

employed by the City of Jersey City (City) since 1978.1 The court based its 

forfeiture decision on the fact that defendant pled guilty to a federal 

information in the United States District Court for the District of New Jersey 

to interference with commerce by extortion under color of official right, 

contrary to 18 U.S.C. § 1951(a), for accepting a $300 bribe while employed in 

the City's Tax Assessor's office. Defendant raises the following related points 

on appeal:

POINT I

THE STATE'S FORFEITURE OF THE 

DEFENDANT'S PENSION VIOLATES THE 

EXCESSIVE FINES CLAUSE OF THE EIGHTH 

AMENDMENT.

POINT II

THE FORFEITURE OF BENNIE ANDERSON'S 

PENSION WAS EXCESSIVE AND SHOULD BE 

REVERSED ON APPEAL.

We agree with defendant that forfeiture of his pension was a fine that 

implicates the Eighth Amendment of the United States Constitution and Article 

I, Paragraph 12 of the New Jersey Constitution because he had a property 

1

 The court also ordered defendant to forfeit any "public employment, office, 

or position" and "forever disqualified" him from "holding any office or 

position of honor, trust, or profit under this State or any of its administrative or 

political subdivisions." Defendant does not challenge those provisions of the 

court's order. 
A-4289-18T3 3

interest in the form of a contractual right to receive pension benefits, despite 

the fact that this right was conditioned on his performance of honorable 

service. We disagree, however, with defendant's argument that the Excessive 

Fines Clause precludes the forfeiture of his entire pension for two reasons. 

First, by enacting N.J.S.A. 43:1-3.1, the Legislature expressed its clear intent 

that such a remedy was appropriate for the precise official misconduct 

committed by defendant. Second, we conclude that defendant's taking of a 

bribe in exchange for a favorable and unjustified change in a property's tax 

description is a profound breach of the public trust such that a total pension 

forfeiture is not a disproportionate result. 

I.

Defendant commenced employment with the City in October 1978. He 

held various positions in the Demolition Division and Engineering Division 

when, in 1990, he became an inspector in the Tax Assessor's office. 

According to defendant, at the time of his March 2017 retirement, he had held 

"every position in the office except that of assessor." When he retired, 

defendant had worked for the City for nearly four decades amassing a fully 

vested pension that entitled him to payments of $60,173.67 per year. 

At all relevant times, in Jersey City a property's tax description included 

information related to its attendant zoning, including if the property was a two 
A-4289-18T3 4

or three-unit dwelling. To amend or alter that description, a property owner 

would ordinarily need to obtain approval from the Zoning Board for a variance 

which, if successful, would result in the Tax Assessor's office amending the 

property's tax description. As part of his responsibilities in the Tax Assessor's 

office, however, defendant had the power to alter the tax descriptions of City 

property without requiring a property owner to file a formal application with 

the City's Zoning Board.

In December 2012, a witness cooperating with law enforcement told 

defendant that he owned property currently zoned as a two-unit dwelling. He 

requested that defendant change the tax description of the property to reflect 

that the home was a three-unit dwelling. Defendant agreed to change the tax 

description without requiring approval from the Jersey City Zoning Board and 

accepted a $300 bribe for doing so. Defendant was promptly charged and pled 

guilty to a single count of 18 U.S.C. § 1951(a). He was sentenced consistent 

with his negotiated plea bargain to a two-year probationary term, with five 

months of home confinement, and fined $3,000. 

After defendant's guilty plea, the City reduced his pension to 

$47,918.76. The State then filed a verified complaint and order to show cause 

seeking, among other relief, the complete forfeiture of defendant's pension and 

any related retirement benefits. The State alleged, consistent with the federal 
A-4289-18T3 5

information to which defendant pled guilty, that at all relevant times defendant 

was an employee of the Jersey City Tax Assessor's Office, a position of public 

office or employment within the meaning of N.J.S.A. 2C:51-2. 

The trial court granted the State's application to proceed summarily and 

after hearing oral arguments, issued an oral decision and order granting the 

State's summary judgment application. In its oral decision, the court first 

determined that because defendant pled guilty to a federal crime involving 

dishonesty, the equivalent of a third-degree or higher offense that also 

"touch[ed]" upon his public employment, New Jersey law required that he 

forfeit his position in the Tax Assessor's office and be barred from future 

public employment. See N.J.S.A. 2C:51-2. Second, as to his pension, the 

court relied on N.J.S.A. 43:1-3.1 and State v. Steele, 420 N.J. Super. 129 

(App. Div. 2011), and concluded that defendant's federal conviction mandated 

a complete pension forfeiture. As it explained, subsection (a) of N.J.S.A. 

43:1-3 conditions the "receipt of public pension or retirement benefit[s] . . . 

upon the rendering of honorable service by a public . . . employee." 

The trial court also noted that the Legislature amended N.J.S.A. 43:1-3.1 

to mandate the complete forfeiture of a public employee's pension if convicted 

of one of the enumerated offenses in subsection (b), or of a "substantially 

similar offense under the laws of another state or the United States," which 
A-4289-18T3 6

"involves or touches . . . [public] office." As it was undisputed that 

defendant's federal conviction was substantially similar to several enumerated 

offenses and directly related to the discharge of his public duties in the Tax 

Assessor's office, the trial court granted the State's motion. 

The court rejected defendant's arguments that N.J.S.A. 43:1-3.1 violated 

the Excessive Fines Clause of the Eighth Amendment of the United States 

Constitution and Article I, Paragraph 12 of the New Jersey Constitution. 

Relying on Hopkins v. Okla. Pub. Emps. Ret. Sys., 150 F.3d 1155 (10th Cir. 

1998), Hames v. City of Miami, 479 F. Supp. 2d 1276 (S.D. Fla. 2007), 

Scarantino v. Pub. Sch. Emps.' Ret. Bd., 68 A.3d 375 (Pa. Commw. Ct. 2013), 

and Kerner v. State Emps. Ret. Sys., 382 N.E. 2d 243 (Ill. 1978), the court 

reasoned that because "pensions are more of a contractual arrangement

between a public employee and [an] employer" which are conditioned on 

honorable service, as opposed to a property right, the breach of that condition 

vitiated any right to a pension benefit and, therefore, forfeiture of that benefit 

was not a payment or fine. Having determined that a public employee's 

pension benefits were not a property right, the court concluded that forfeiture 

of those benefits did not implicate the Excessive Fines Clause as the Eighth 

Amendment would only apply when payment to the government involved 
A-4289-18T3 7

"turning over 'property' that belonged to defendant." Hopkins, 150 F.3d at 

1162 (quoting Austin v. United States, 509 U.S. 602, 604 (1993)).

After the court denied defendant's stay application, this appeal followed.

II.

Our review of a ruling on summary judgment is de novo and we apply 

the same legal standard utilized by the trial court. Townsend v. Pierre, 221 

N.J. 36, 59 (2015). "Summary judgment must be granted if 'the pleadings, 

depositions, answers to interrogatories and admissions on file, together with 

the affidavits, if any, show there is no genuine issue as to any material fact 

challenged and that the moving party is entitled to a judgment . . . as a matter 

of law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-

2(c)). We accord no special deference to a trial judge's conclusions on issues 

of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

III.

We note that defendant does not challenge the applicability of N.J.S.A. 

43:1-3.1 to the facts before us. In this regard, defendant does not deny that the 

conduct for which he was convicted under 18 U.S.C. § 1951(a) also violates, 

or was substantially similar to, N.J.S.A. 2C:27-2 (bribery in official and 

political matters) and N.J.S.A. 2C:27-10 (acceptance or receipt of unlawful 

benefit by public servant for official behavior). Nor does defendant dispute 
A-4289-18T3 8

that upon a finding that defendant committed such an offense, the court was 

required to order a complete forfeiture of his pension. See N.J.S.A. 43:1-

3.1(c)(1) ("A court of this State shall enter an order of pension forfeiture 

pursuant to this section . . . [i]mmediately upon a finding of guilt by the trier 

of fact or a plea of guilty entered in any court of this State."); Steele, 420 N.J. 

Super. at 133-34. 

Instead, defendant renews his argument that requiring forfeiture of his 

pension benefits is an unconstitutional excessive fine under the State and 

Federal Constitutions. See U.S. Const. amend. VIII ("[E]xcessive bail shall 

not be required, nor excessive fines imposed, nor cruel and unusual 

punishments inflicted."); N.J. Const. art. I, ¶ 12 ("Excessive bail shall not be 

required, excessive fines shall not be imposed, and cruel and unusual 

punishments shall not be inflicted."). We disagree and affirm, albeit for 

different legal reasons than those stated by the trial court in its decision. See

El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005) 

(recognizing that an appellate court's function is to review orders, not reasons,

and that we can affirm a trial court’s orders without adopting its legal 

reasoning). 

To determine whether a forfeiture is excessive under the Eighth 

Amendment, courts must first determine whether the punishment constitutes a 
A-4289-18T3 9

payment or fine within the meaning of the Excessive Fines Clause. See United 

States v. Bajakajian, 524 U.S. 321, 334 (1998). If the forfeiture constitutes 

such a fine, courts must then determine whether such a fine was excessive. 

Ibid. 

The Eighth Amendment was "intended to prevent the government from 

abusing its power to punish" and the "'Excessive Fines Clause was intended to 

limit only those fines directly imposed by, and payable to, the government.'" 

Austin, 509 U.S. at 607 (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco 

Disposal, Inc., 492 U.S. 257, 268 (1989)). "[A]t the time the Constitution was 

adopted, 'the word "fine" was understood to mean a payment to a sovereign as 

punishment for some offense.'" Bajakajian, 524 U.S. at 327-28 (quoting 

Browning-Ferris, 492 U.S. at 265). The Excessive Fines Clause, therefore, 

"limits the government's power to extract payments, whether in cash or in 

kind, 'as punishment for some offense.'" Id. at 328 (quoting Austin, 509 U.S. 

at 609-10). 

Consequently, the forfeiture of property only qualifies as a fine for 

Eighth Amendment purposes if it constitutes punishment for an offense. See

Bajakajian, 524 U.S. at 328. In Bajakajian, the Court noted that the civil 

forfeiture at issue there constituted punishment because it was "imposed at the 

culmination of a criminal proceeding and requires conviction of an underlying 
A-4289-18T3 10

felony, and it cannot be imposed upon an innocent [person], but only upon a 

person who has himself been convicted of a . . . violation." Ibid. The Supreme 

Court also held that "'a civil sanction that cannot fairly be said solely to serve a 

remedial purpose . . . is punishment.'" Austin, 509 U.S. at 610 (quoting United 

States v. Halper, 490 U.S. 435, 448 (1989)).

As to whether such a fine is excessive, the Supreme Court has held that a 

punitive forfeiture in the civil context violates the Eighth Amendment "if it is 

grossly disproportional to the gravity of defendant's offense." Bajakajian, 524 

U.S. at 334. In articulating that standard, the Supreme Court reasoned that 

"[t]he touchstone of the constitutional inquiry under the Excessive Fines 

Clause is the principle of proportionality [and] [t]he amount of the forfeiture 

must bear some relationship to the gravity of the offense that it is designed to 

punish." Ibid. It noted that "judgments about the appropriate punishment for 

an offense belong in the first instance to the legislature," id. at 336, and "a 

court's review of the propriety of a punishment will be inherently imprecise." 

Ibid. According to the Court, "[b]oth of these principles counsel against 

requiring strict proportionality between the amount of a punitive forfeiture and 

the gravity of a criminal offense," and are thus taken into account by its 

adoption of the standard of gross proportionality. Ibid.
A-4289-18T3 11

As noted, the Supreme Court explained that "[i]f the amount of the 

forfeiture is grossly disproportional to the gravity of the defendant's offense, it 

is unconstitutional." Id. at 337. In analyzing the gravity of the offense, the 

Bajakajian Court considered four factors: 1) the nature and extent of the 

crime; 2) whether the violation was related to other illegal activities; 3) the 

other penalties that may be imposed for the violation; and 4) the extent of the 

harm caused. See id. at 337-40. 

Several courts in other jurisdictions have considered excessive fine 

arguments with respect to pension forfeitures. As noted by the trial court, the 

majority of those courts have held that pension forfeitures are not subject to an 

excessive fines analysis because receipt of pension funds is in the nature of a 

contractual arrangement between a public employee and employer conditioned 

on honorable services, rather than a property right. See, e.g. Hopkins, 150 

F.3d at 1162; Hames, 479 F. Supp. 2d at 1288; Scarantino, 68 A.3d at 385;

Kerner, 382 N.E.2d at 246-47. 

In Hopkins, a retired state employee was convicted in federal court of 

accepting a bribe in connection with his public employment. 150 F.3d at 

1157-58. At the time of his conviction, Hopkins was credited with thirty-two 

years of service and received a monthly pension of $4,293.18. Id. at 1157. 

After his conviction, Hopkins was notified that his pension would be reduced 
A-4289-18T3 12

by seventy percent in accordance with Oklahoma's pension forfeiture statute. 

Id. at 1157-58. Hopkins estimated that this pension reduction resulted in an 

estimated loss of $706,452.85 and challenged his pension forfeiture in federal 

court alleging that the statute violated the Excessive Fines Clause of the Eighth 

Amendment. Id. at 1158. 

The Tenth Circuit first noted that implicit in the interpretation that a fine 

was "payment to a sovereign as punishment for some offense," id. at 1162, was 

the notion that "it applies only when the payment to the government involves 

turning over 'property' of some kind that once belonged to the defendant." 

Ibid. (quoting Austin, 509 U.S. at 604). The court agreed with the District 

Court's reasoning that "under Oklahoma law, Hopkins had no 'property' right 

in his pension benefits – even though he had already begun to receive the 

pension benefits – because Hopkins' right to his pension always was 

contingent on maintaining honorable service during his tenure in office." Id. at 

1162. The Tenth Circuit concluded that when Hopkins accepted a bribe, he 

"breached his duty of honorable service" and thus under Oklahoma law, 

Hopkins had no "vested right" in his pension benefits. Ibid.; see also Hames, 

479 F. Supp. 2d at 1288 (holding under Florida law that a public employee has 

no property interest in pension benefits because the pension vests "subject to 

the conditions in the forfeiture statute"); Scarantino, 68 A.3d at 385 (holding 
A-4289-18T3 13

under Pennsylvania law that a public employee's right to pension benefits 

depends upon certain conditions precedent including that an employee not be 

convicted of certain crimes).

Defendant principally relies upon the Supreme Judicial Court of 

Massachusetts's decision in Pub. Emp. Ret. Admin. Comm’n v. Bettencourt, 47 

N.E.3d 667 (Mass. 2016), which reached a contrary result to the Hopkins, 

Hames, and Scarantino courts. In that case, Edward Bettencourt, a police 

officer with over twenty-seven years of public service, was convicted of 

accessing without authorization the civil service examination scores of twentyone other police officers. Id. at 671, 679. The court noted that "the essence of 

his crime, in substance, was one of 'snooping.'" Id. at 679. His subsequent 

application for retirement benefits was denied because his criminal convictions 

related to his public position and fell within the state's pension forfeiture 

statute. Id. at 671, 678. 

In Bettencourt, the court concluded that under the facts before it, a total 

pension forfeiture constituted an excessive fine under the Eighth Amendment 

and rejected the view that Bettencourt "had only a future interest in receiving 

retirement allowance payments . . . that was wholly contingent on . . . not 

being convicted of a crime involving misconduct in office." Id. at 674. The 

court explained that Massachusetts courts had "long held the view" that public 
A-4289-18T3 14

employees who were members of the retirement system held an interest that 

originated in contract but in substance amounted to a property right. Id. at 

675.

The court reasoned that at the point Bettencourt became a contributing 

member of the retirement system with deductions taken from his salary, "he 

acquired a protected interest in the retirement allowance provided by the 

retirement system that amounted to a property interest." Id. at 676-77. The 

court disagreed with the reasoning in the Hopkins line of cases and explained:

[w]e are not persuaded by the reasoning in these cases. 

If an employee has a protected contract right and, 

derivatively, a property interest in retirement benefits, 

the fact that the benefits may be subject to forfeiture 

on account of misconduct does not change the 

fundamental character of the contract right or property 

interest. Rather, it simply means that the employee 

will lose his or her right and interest as a result of the 

misconduct.

[Id. at 676.]

The court further explained that the Massachusetts forfeiture statute 

"effects what is in substance an extraction of payments from the employee to 

the Commonwealth" and concluded that because the pension forfeiture 

"involve[s] an 'extraction of payments' and is punitive, it is a fine within the 

meaning of the [E]xcessive [F]ines [C]lause of the Eighth Amendment," and 

total forfeiture was excessive under the circumstances. Id. at 677, 680-81. 
A-4289-18T3 15

We agree, in part, with the court's analysis in Bettencourt and are 

similarly unpersuaded by the reasoning in Hopkins and those courts which 

have held that public employees do not have a property right in pension 

benefits because that right is contingent on the employee maintaining 

honorable service during his or her tenure in office. Indeed, the New Jersey 

Supreme Court, like courts in Massachusetts, has recognized that a public 

employee's right to pension benefits is analogous to a property interest. See

Uricoli v. Bd. of Trustees, Police & Firemen's Ret. Sys., 91 N.J. 62, 76 (1982) 

(in analyzing the legislative intent of a pension forfeiture statute, the Court 

acknowledged two predilections that weighed against a total pension forfeiture 

including that "forfeiture – whether of one's pension or any other property or 

benefit to which one is otherwise entitled – is a penalty or a punishment for 

wrongful conduct" and that it is also "'remedial in character.'" (citations 

omitted)); Eyers v. State, Bd. of Trs. Pub. Emps. Ret. Sys., 91 N.J. 51, 56 

(1982) ("[T]he pension forfeiture policy is penal in nature and has as its 

objectives the same considerations underlying all such schemes: punishment 

of the individual and deterrence . . . .").2

2

 We also note the Court in Spina v. Consol. Police and Firemen's Pension 

Fund Comm'n, 41 N.J. 391, 401-02 (1964), stated that "it seems idle to sum up 

either the public's or the employee's contribution in one crisp word . . . [but] 

[w]e have no doubt that pension benefits are not a gratuity" and "[t]he 
A-4289-18T3 16

We have also acknowledged that pension benefits are inherently 

property rights when equitably distributing assets in matrimonial proceedings. 

For example, in Whitfield v. Whitfield, 222 N.J. Super. 36, 45 (App. Div. 

1987), we concluded that a spouse's pension interest accrued during a 

marriage, even if not yet vested, was subject to equitable distribution because 

"a pension plan [is] a form of deferred compensation for services rendered" 

and "[a]s a substitute for wages such benefits unquestionably constitute 

property." When discussing the non-vested pension at issue, we explained that 

"such a pension is property in the form of a contract right to deferred 

compensation subject only to the fulfillment of the condition of the requisite 

number of years of employment by the employee." Ibid.

And, in Barr v. Barr, 418 N.J. Super. 18, 28 (App. Div. 2012), we 

addressed a dependent spouse's right to the "increases [in the supporting 

spouse's military pension benefits] resulting from his post-judgment, preretirement promotion." Although we vacated the trial judge's determination 

that the plaintiff had an interest in the "post-dissolution pension increases" and 

remanded for a plenary hearing, in our decision, we again observed that a 

pension reflects "'deferred compensation for services rendered,'" and "[r]ather 

employee has a property interest in an existing fund which the State could not 

simply confiscate."
A-4289-18T3 17

than receiving current income, the monies are deferred until retirement." Id. at 

33 (quoting Whitfield, 222 N.J. Super. at 45). 

Like the police officer in Bettencourt, defendant here had a protected 

property interest in his pension benefits, for purposes of an Eighth Amendment 

analysis, because he had a contractual right to receive those benefits in 

exchange for his public employment. As the court in Bettencourt cogently 

observed, the nature of defendant's property interest does not change merely 

because receipt of those benefits is conditioned on defendant's rendering of 

honorable service. Instead, "it simply means that the employee will lose his or 

her right and interest as a result of the misconduct." Bettencourt, 47 N.E.3d at 

676. By withholding payment of defendant's pension income, the State 

effectively extracted payments that were due to defendant (and to which he 

was already receiving) because of his misconduct. Under such circumstances, 

we conclude defendant's right to a pension was a property right and the 

forfeiture was a "fine" within the meaning of the Eighth Amendment. See

Bajakajian, 524 U.S. at 328 (quoting Austin, 509 U.S. at 609-10). 

And, the pension forfeiture ordered by the trial court was a "punishment" 

for purposes of an Eighth Amendment analysis. Indeed, neither party argues 

that pension forfeitures pursuant to N.J.S.A. 43:1-3.1 are solely remedial and, 

as in Bajakajian, defendant's loss of pension benefits was "imposed at the 
A-4289-18T3 18

culmination of a criminal proceeding and require[d] conviction of an 

underlying felony, and it cannot be imposed upon an innocent [public 

employee]." 524 U.S. at 328; see also Corvelli v. Bd. of Trs. Police & 

Firemen's Ret. Sys., 130 N.J. 539, 550 (1992) ("[P]ension forfeiture operates 

as a 'penalty or punishment for wrongful conduct.'" (quoting Uricoli, 91 N.J. at 

76)); Fiola v. State, Dep't of Treasury, Div. of Pensions, 193 N.J. Super. 340, 

347-48 (App. Div. 1984) ("Forfeiture of earned pension rights . . . constitutes a 

drastic penalty which the New Jersey Supreme Court has become increasingly 

loath to permit even in the case of employee misconduct unless that penalty 

has been clearly mandated by the Legislature.")

IV.

In light of our decision that the forfeiture of pension benefits is a 

punitive fine that implicates the Excessive Fines Clause, we next address 

defendant's second point. Defendant argues that the forfeiture of $47,918.76 

per year in pension income for the duration of his life because he accepted a 

$300 bribe is an excessive fine under the Eighth Amendment and warrants 

reversal. We disagree.3

3

 We recognize that the trial court did not address whether forfeiture of 

defendant's pension benefits was unconstitutionally excessive because it held 

that the forfeiture was not a payment or fine that implicated the Eighth 

Amendment. We nevertheless address that argument as the issue was briefed 
A-4289-18T3 19

As discussed, in determining whether a fine violates the Excessive Fines 

Clause, courts must "compare the forfeiture amount to that offense, and '[i]f 

the amount of the forfeiture is grossly disproportional to the gravity of the 

defendant's offense, it is unconstitutional.'" Bettencourt, 47 N.E.3d at 678 

(citing Bajakajian, 524 U.S. at 337). The Bajakajian Court initially 

emphasized that "judgments about the appropriate punishment for an offense 

belong in the first instance to the legislature." Id. at 336. The Court then 

considered four factors in weighing the gravity of a defendant's underlying 

offense: 1) the nature and extent of the crime; 2) whether the violation was 

related to other illegal activities; 3) the other penalties that may be imposed for 

the violation; and 4) the extent of the harm caused. See id. at 337-40.

Applying that analysis here, we first note that while mandatory forfeiture 

of defendant's pension benefits may seem like a harsh penalty given his receipt 

of a mere $300 bribe, the Legislature deemed such a result to be an appropriate 

consequence for that precise official misconduct.4 It was well within the

by the parties, "the record is adequate to terminate the dispute[,] and no further 

fact-finding[,] . . . administrative expertise[,] or discretion is involved." Price 

v. Himeji, LLC, 214 N.J. 263, 294 (2013) (quoting Vas v. Roberts, 418 N.J. 

Super. 509, 523-24 (App. Div. 2011)).

4 As conceded by the State, defendant will receive a total return of his pension 

contributions. See Legislative Fiscal Estimate, Senate No. 14, 212 Leg. (N.J.
A-4289-18T3 20

Legislature's power to set this penalty as it saw fit. See Steele, 420 N.J. Super.

at 133-34; Brown v. Heymann, 62 N.J. 1, 10-11 (noting that policy decisions 

rest with the Legislature and that a statute's constitutionality "does not turn 

upon whether a plan is wise or unwise in a judge's view"). 

Further, N.J.S.A. 43:1-3.1, like all statutes, is presumed constitutional. 

See Whirlpool Props. v. Dir., Div. of Taxation, 208 N.J. 141, 175 (2011). The 

judiciary has always exercised its power to invalidate a legislative act with 

restraint and "a deep awareness that the challenged enactment represents the 

considered action of a body composed of popularly elected representatives." 

N.J. Sports & Exposition Auth. v. McCrane, 61 N.J. 1, 8 (1972). A legislative 

act will only be declared void if "its repugnancy to the Constitution is clear 

beyond a reasonable doubt." Harvey v. Bd. of Chosen Freeholders, 30 N.J. 

381, 388 (1959). 

Moreover, N.J.S.A. 43:1-3.1 is not unprecedented in its imposition of 

pension forfeiture as a penalty for misconduct as "[t]he policy requiring 

forfeiture of pension rights on account of dishonorable service has been part of 

our law for over half a century." Corvelli, 130 N.J. at 550. Indeed, "[a]ll

public pension statutes in this State carry an implicit condition precedent of 

Feb. 14, 2007) ("[A] member whose pension is forfeited receives a refund of 

his own contributions to the fund or system, and this bill is not intended to 

change this practice.").
A-4289-18T3 21

honorable service . . . [and] operate[] as a penalty or punishment for wrongful 

conduct." Ibid. As noted, pension forfeiture serves two significant 

government objectives: "punishment of the individual and deterrence, both as 

to the offending individual and other employees." Eyers, 91 N.J. at 56. In 

serving these dual purposes of punishment and deterrence, N.J.S.A. 43:1-3.1 

operates to protect the public from the serious problem of government 

corruption.

Turning to the gravity of defendant's offense, we acknowledge that he 

pled guilty to a single count of violating 18 U.S.C. § 1951(a) after accepting a 

$300 bribe and that his offense was unrelated to other illegal activities. We 

note, however, that the maximum punishment authorized for a single offense 

under 18 U.S.C. § 1951 is a fine or imprisonment of up to twenty years, or 

both. 

Further, when defendant took the $300 bribe, he significantly and 

materially breached the public's trust. Indeed, honest, hardworking taxpayers 

and property owners have the right to expect, require, and demand that public 

servants perform their jobs honorably. That certainly is true with respect to 

zoning decisions which necessarily affect the health and safety of the tenants 

and owners of the affected properties. It is beyond peradventure that those 

decisions must be based on the diligent and conscientious application of the 
A-4289-18T3 22

law to the relevant facts, as appropriate, and not the result of illegal payments, 

even a bribe of $300, which may appear to be a modest sum, but in actuality is 

a colossal amount when measured against the damage to the public trust 

caused by that illegal act.

We acknowledge that the court in Bettencourt deemed the pension 

forfeiture in that case to be constitutionally excessive. In doing so, it 

concluded that "no harm to the public fisc was accomplished or threatened," 

"there was no improper or illegal gain involved," "the offenses did not warrant 

concern about protection of the public," and Bettencourt received no "personal 

benefit, profit, or gain from his actions." Bettencourt, 47 N.E.3d at 680. Here, 

defendant was not convicted of effectively "snooping" on his colleagues' test 

results. Id. at 679. He took money illegally to perform a function he was 

being paid to honorably discharge. As noted, our Legislature in enacting 

N.J.S.A. 43:1-3.1 deemed that conduct sufficiently egregious to warrant a 

complete pension forfeiture and we conclude that such a remedy is not 

constitutionally disproportionate.

V.

Having considered the Legislature's determination that total forfeiture of 

pension benefits is an appropriate consequence of certain public employee 

misconduct, and that the punishment here was not grossly disproportional in 
A-4289-18T3 23

comparison to the gravity of his offense, we conclude that forfeiture of 

defendant's pension was not excessive under either the Eighth Amendment of 

the United States Constitution or Article I, Paragraph 12 of the New Jersey 

Constitution.

Affirmed.