Filed 6/19/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

TOD HIPSHER,

Plaintiff and Appellant,

v.

LOS ANGELES COUNTY 

EMPLOYEES RETIREMENT 

ASSOCIATION et al.,

 Defendants and Respondents,

COUNTY OF LOS ANGELES, 

 

 Real Party in Interest and 

 Appellant.

 B276486

 (Los Angeles County

 Super. Ct. No. BS153372)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Robert H. O’Brien, Judge. Modified and 

affirmed.

Rains Lucia Stern St. Phalle & Silver, Stephen H. Silver 

and Jacob A. Kalinski for Plaintiff and Appellant, Tod Hipsher.

Steven M. Berliner, Joung H. Yim and Christopher S. 
2

Frederick for Real Party in Interest and Appellant, County of Los 

Angeles.

Steven P. Rice, Johanna M. Fontenot and Michel D.

Herrera for Defendant and Respondent, Los Angeles County 

Employees Retirement Association.

Xavier Becerra, Attorney General, Thomas Patterson, 

Assistant Attorney General, Constance L. LeLouis, Deputy 

Attorney General and Anthony P. O’Brien, Deputy Attorney 

General, for Defendant and Respondent, the State of California.

_____________________

The Public Employees’ Pension Reform Act of 2013 (Gov. 

Code, § 7522 et seq. [PEPRA])1 was enacted, in part, to curb 

abuses in public pensions systems throughout the state. 

(Alameda County Deputy Sheriff’s Assn. v. Alameda County 

Employees’ Retirement Assn. (2018) 19 Cal.App.5th 61, 75

(Alameda), review granted Mar. 28, 2018, S247095.) Section 

7522.72 provides a mechanism whereby a public pensioner 

forfeits a portion of his or her retirement benefits following a 

conviction of a felony offense that occurred in the performance of 

his or her official duties.2

 

1 All undesignated statutory references are to the 

Government Code.

2 Section 7522.72 provides, in pertinent part: “(b)(1) If a 

public employee is convicted by a state or federal trial court of 

any felony under state or federal law for conduct arising out of or 

in the performance of his or her official duties, in pursuit of the 

office or appointment, or in connection with obtaining salary, 

disability retirement, service retirement, or other benefits, he or 

she shall forfeit all accrued rights and benefits in any public 
3

Shortly after appellant Tod Hipsher retired from the Los

Angeles County Fire Department, he was convicted of a federal 

felony for directing an offshore gambling operation (18 U.S.C. 

§ 1955).

3 Respondent, the Los Angeles County Employees 

Retirement Association (LACERA), subsequently reduced 

Hipsher’s vested retirement benefits based on the determination 

by the County of Los Angeles (County) that his gambling conduct 

was committed in the scope of his official duties (§ 7522.72).

Hipsher challenged LACERA’s forfeiture determination by a 

 

retirement system in which he or she is a member to the extent 

provided in subdivision (c) and shall not accrue further benefits 

in that public retirement system, effective on the date of the 

conviction. [¶] . . . [¶] 

“(c)(1) A member shall forfeit all the rights and benefits 

earned or accrued from the earliest date of the commission of any 

felony described in subdivision (b) to the forfeiture date, 

inclusive. The rights and benefits shall remain forfeited 

notwithstanding any reduction in sentence or expungement of the 

conviction following the date of the member’s conviction. Rights 

and benefits attributable to service performed prior to the date of 

the first commission of the felony for which the member was 

convicted shall not be forfeited as a result of this section. [¶]. . .[¶]

“(d)(1) Any contributions to the public retirement system 

made by the public employee described in subdivision (b) on or 

after the earliest date of the commission of any felony described 

in subdivision (b) shall be returned, without interest, to the 

public employee upon the occurrence of a distribution event 

unless otherwise ordered by a court or determined by the pension 

administrator.” (§ 7522.72, subds. (b)-(d).)

3 Section 1955 defines an illegal gambling business as an 

operation which (1) violates state law, (2) involves five or more 

persons, and (3) operated for a period in excess of thirty days, or 

has a gross revenue of $2,000 in any single day.
4

petition for writ of mandate and a complaint seeking declaratory 

relief. The trial court entered a mixed judgment. It issued a

peremptory writ of mandate directing the County to afford 

adequate due process protections before reducing Hipsher’s 

retirement benefits, while finding in favor of the defendants with 

respect to Hipsher’s cause of action for declaratory relief. 

Hipsher contends section 7522.72 is unconstitutional as 

applied to him because it impaired his contractual right to his 

vested pension, and is an unlawful ex post facto law. The County 

disagrees and contends it owes Hipsher no additional due process 

and is not bound by the trial court judgment because it was not 

named as a respondent in the peremptory writ.

We conclude section 7522.72 is constitutionally sound, but 

that LACERA, not the County, bears the burden to afford 

Hipsher the requisite due process protections in determining 

whether his conviction falls within the scope of the statute. 

Accordingly, we modify the judgment to require the County to 

provide the requisite due process, while affirming the remainder 

of the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Hipsher was hired as a firefighter with the Los Angeles 

Fire Department in 1983. Starting around 2001, he began 

conducting an illegal gambling operation in Orange and Los 

Angeles Counties, routing customer wages and profits through a 

company based in Costa Rica. When bettors lost, Hipsher or his 

associates collected the amounts due under the terms of the 

wager. Unbeknownst to Hipsher, beginning in approximately 

2011, he recruited undercover agents from the Department of 
5

Homeland Security and the Orange County District Attorney’s 

Office to collect unpaid or past due gambling debts. 

In October 2013, the United States Attorney filed a onecount information alleging Hipsher conducted, managed, 

supervised, directed and owned an illegal gambling business. (18 

U.S.C. § 1955.) Hipsher retired from the fire department less 

than two months after the information was filed. He was 

convicted, the following year, of the charged offense pursuant to 

his guilty plea. 

LACERA notified Hipsher that it was required to adjust his 

retirement benefits pursuant to section 7522.72. According to the 

letter, the Los Angeles County Department of Human Resources 

determined that Hipsher’s conviction was job-related. This 

determination was based on investigation reports from the 

United States Department of Homeland Security. 

According to these reports, Hipsher met with undercover 

federal agents at a fire station located in Bell, California. 

Hipsher had requested the meeting to discuss ongoing debt 

collections and obtain counterfeit merchandise for resale. The 

undercover agents presented themselves as motorcycle gang 

members. Hipsher gave them a tour of the fire station, allegedly 

showing them the room where he conducted part of the operation. 

The agents used covert audio and video recording devices during 

their meetings with Hipsher. 

LACERA made the following adjustments to Hipsher’s

benefits:

 Expunging 12 years and nine months of service credits.

 Expunging $97,060.77 in contributions and $48,183.7 in 

interest from his retirement fund.

 Reducing his retirement allowance from $6,843.14 to 
6

$2,932.42.

 Reducing the County’s health care premium subsidy 

from 100 percent to 68 percent.

 Voiding the Board of Retirement decision granting him a

service-connected disability retirement.

LACERA sent a letter to Hipsher’s attorney confirming 

that there were no administrative remedies to challenge the

benefit adjustment determination.

4 Hipsher filed a petition for 

writ of mandate and complaint for declaratory relief. He alleged 

that reduction of his vested retirement benefits constituted an 

unconstitutional ex post facto application of section 7522.72, 

violated the contract clause of the California Constitution, and 

was invalid because there was no nexus between his crime and 

the performance of his official duties. 

The trial court requested supplemental briefing as to

whether Hipsher had a due process right to his original

retirement benefits and, if so, whether he was afforded sufficient 

due process protections. In a lengthy statement of decision, the 

court issued judgment in favor of the defendants with respect to

Hipsher’s contract and ex post facto claims, and in favor of 

Hipsher with respect to the due process issue. As to the latter, 

the court issued a peremptory writ of mandate directing

 

4 According to the County, it recently “implemented an 

interim process consistent with the trial court’s ruling, whereby 

the County provides notice to an employee and the right to 

respond in writing, if the County has a reasonable basis to 

believe that a conviction is job related and may result in pension 

forfeiture. Such process is afforded to an employee prior to any 

notification to LACERA.” Notwithstanding this interim 

procedure, the County does not concede that any due process is 

required. 
7

LACERA to set aside the reduction in Hipsher’s pension benefits,

and return the difference between his full pension and the 

allowance he received after the reduction. The court also ordered 

the County to re-initiate proceedings under section 7522.72 in a 

manner that affords Hipsher sufficient due process protections.

5

Both Hipsher and the County filed timely notices of appeal. 

DISCUSSION

We review questions regarding the constitutionality of a 

statute de novo. (Vergara v. State of California (2016) 246 

Cal.App.4th 619, 642.) “The ultimate questions of whether 

vested contractual rights exist and whether impairments are 

unconstitutional present questions of law subject to independent 

review.” (Board of Administration v. Wilson (1997) 52 

Cal.App.4th 1109, 1129.)

I

Hipsher contends section 7522.72 is unconstitutional as 

applied to him because his vested contractual right to receive a 

pension was not subject to reduction even if he was convicted of 

a job-related crime.

A

The contract clause of the California Constitution 

prohibits the state from enacting a law impairing the obligation 

 

5 The trial court found the County “is free to devise 

whatever procedures it decides will best and most efficiently 

satisfy the requirements of due process”; however, these 

procedures must include (1) notice of the impending forfeiture, (2) 

an opportunity for the pensioner to submit evidence and refute 

the proposed forfeiture before an impartial decision maker, and 

(3) a written decision. 
8

of contracts. (Cal. Const., art. I, § 9.) By this clause, the state’s 

ability to modify its own contracts with other parties, or 

contracts between other parties, is limited. (Valdes v. Cory 

(1983) 139 Cal.App.3d 773, 783 (Valdes). 

“[O]nce a public employee has accepted employment and 

performed work for a public employer, the employee obtains 

certain rights arising from the legislative provisions that 

establish the terms of the employment relationship—rights that 

are protected by the contract clause of the state Constitution 

from elimination or repudiation by the state.” (White v. Davis

(2003) 30 Cal.4th 528, 566.) 

Not every contractual impairment runs afoul of the 

contracts clause. (Teachers’ Retirement Board v. Genest (2007) 

154 Cal.App.4th 1012, 1026.) “‘The constitutional prohibition 

against contract impairment does not exact a rigidly literal 

fulfillment; rather, it demands that contracts be enforced 

according to their “just and reasonable purport” . . . .’” (Allen v. 

Board of Administration (1983) 34 Cal.3d 114, 119-120 (Allen).) 

An appellant who claims the calculation of his retirement 

benefits violates his vested contractual rights under the state 

contract clause has the burden of “‘mak[ing] out a clear case, 

free from all reasonable ambiguity,’ a constitutional violation 

occurred. [Citation.]” (Deputy Sheriffs’ Assn. of San Diego 

County v. County of San Diego (2015) 233 Cal.App.4th 573, 578.)

There is a strong presumption that statutory amendments 

are constitutional. (See County of Sonoma v. State Energy 

Resources Conservation etc. Com. (1985) 40 Cal.3d 361, 370.) 

Any doubt as to the Legislature’s power to act should be 

resolved in favor of the legislative action. (Alameda, supra, 19

Cal.App.5th at p. 90.) “The reason for the elevated burden on 
9

plaintiffs raising a constitutional challenge under the contracts 

clause is this. ‘“The state occupies a unique position in the field 

of contract law because it is a sovereign power. This gives rise 

to general principles which may limit whether an impairment 

has [occurred] as a matter of constitutional law.”’” (Cal Fire 

Local 2881 v. California Public Employees’ Retirement System

(2016) 7 Cal.App.5th 115, 124 (Cal Fire).)

Analysis of a contract-clause claim requires a two-step 

process. First, the court assesses the nature and extent of any

contractual obligation. (Valdes, supra, 139 Cal.App.3d at p. 

785.) Here, it is clear Hipsher had a vested contractual right to

certain retirement benefits. (See Kern v. City of Long Beach

(1947) 29 Cal.2d 848, 855-856 [employee earns the right to 

pension after completing prescribed period of service] (Kern); 

Betts v. Board of Administration of Public Employees’

Retirement System (1978) 21 Cal.3d 859, 863 [right to pension 

benefits accrues upon acceptance of employment].)

Second, if the rights at issue are vested, the court inquires

into “the scope of the Legislature’s power to modify” the 

contractual right. (Valdes, supra, 139 Cal.App.3d at p. 785.)

Legislative deference is broad, as even “a substantial

[contractual] impairment may be constitutional if it is 

‘reasonable and necessary to serve an important public purpose.’ 

[Citation.]” (Id. at p. 790.) Here, section 7522.72 serves the 

important public purpose of ensuring the integrity of public 

pension systems. (See Alameda, supra, 19 Cal.App.5th at p. 75.)

A public employee’s vested retirement benefits can be 

defeated upon the occurrence of a “condition subsequent.”

(Kern, supra, 29 Cal.2d at p. 853; Betts v. Board of

Administration of Public Employees’ Retirement System, supra, 
10

21 Cal.3d at p. 863; Dickey v. Retirement Board (1976) 16 Cal.3d 

745, 749.) Kern provided one example of a “condition 

subsequent”—lawful termination of employment before 

completion of the period of service—but did not define the term. 

(Kern, supra, 29 Cal.2d at p. 853.) We conclude a felony 

criminal conviction stemming from the pensioner’s public 

service constitutes a condition subsequent, thus permitting a 

limited forfeiture of vested retirement benefits under section 

7522.72.

6

 

6 Other states have reached a similar conclusion under

pension forfeiture laws similar to section 7522.72. (E.g., 

Hopkins v. Oklahoma Public Employees Retirement System

(10th Cir. 1998) 150 F.3d 1155, 1162 [right to pension benefits 

contingent upon public employee’s “duty of honorable service”]; 

Kerner v. State Employees’ Retirement System (1978) 72 Ill.2d 

507, 514-515 [Illinois pension forfeiture law, following felony 

conviction, does not violate state’s contract clause]; Masse v. 

Board of Trustees (1981) 87 N.J. 252, 256 [state legislature 

“must have intended honorable performance as a component of 

creditable service”]; Hames v. City of Miami Firefighters’ and 

Police Officers’ Trust (2008) 980 So.2d 1112, 1114 [“In Florida, a 

retired police officer forfeits all rights to receive public 

retirement benefits in excess of his or her accumulated 

contributions if the officer ‘is convicted of a specified offense 

committed prior to retirement”’]; Steigerwalt v. City of St. 

Petersburg (1975) 316 So.2d 554, 556 [upholding pension law 

requiring sanctions against retired employee who commits 

misconduct]; Booth v. Sims (1994) 193 W.Va. 323, 338 [“If an 

employee engages in misconduct during his or her public 

service, he or she may forfeit rights to collect a pension later”]; 

Bassett v. Pekin Police Pension Board (2005) 362 Ill.App.3d 235 

[police officer convicted of felony forfeits right to pension 

benefits, but is entitled to refund of pension contributions].)
11

The opinion of the Florida Supreme Court is particularly 

persuasive on this point: “Sanctions are commonly imposed to 

assure the faithful and honest discharge of the duties of the

[public] employee. What these sanctions should be, in the case 

of public employees, is peculiarly a function of the Legislature. 

It involves the exercise of the law-making power. This is, of 

course, not an unbridled power, but it is a power that should be 

interfered with by the judicial branch only when it is exercised 

in such an unreasonable, arbitrary and capricious manner, 

bearing no relation whatever to the valid objects of the 

Legislation, as to be violative of some specific constitutional 

provision such as equal protection or due process.” (Steigerwalt 

v. City of St. Petersburg, supra, 316 So.2d at p. 556.)

Relying on Allen, supra, 34 Cal.3d 114, Hipsher contends 

LACERA is prohibited from modifying his pension benefits, no 

matter the malfeasance, without providing a “comparable new

advantage.” We disagree.

Allen considered whether pension payments to retired 

legislators could be reduced pursuant to new statutory and 

constitutional language. (Allen, supra, 34 Cal.3d at pp. 118-

119.) The Supreme Court reversed the trial court’s conclusion 

that this violated the contract clauses of the state and federal 

constitutions. (Id. at pp. 117, 125.) But the court noted, in 

dicta, that with respect to active employees, any modification of

a vested pension rights must (1) be reasonable, (2) bear a 

material relation to the theory and successful operation of a 

pension system, and (3) be accompanied by a “comparable new 

advantage.” (Id. at p. 120.) The court also observed that the 

scope of power is even more restrictive as to retired employees. 

(Ibid.)
12

However, subsequent case law has held that the term

“must” permeating the Allen opinion was “[not] intended to be 

given the literal and inflexible meaning attributed to it.” (Marin 

Assn. of Public Employees v. Marin County Employees’

Retirement Assn. (2016) 2 Cal.App.5th 674, 698 (Marin).) 

Indeed, if Allen intended “must” to have a literal meaning, the 

retirees in that case would have prevailed on appeal, but they 

did not. (Id. at p. 699.) Thus, a modification of vested pension 

rights need not invariably be accompanied by a comparable new 

advantage. Indeed, it would be anomalous to suggest that the 

Legislature must reward an employee for conviction of a jobrelated felony by providing a new comparable advantage in the 

context of a section 7522.72 forfeiture.

Assuming Hipsher operated the gambling enterprise 

during the course of his official duties, such conduct 

constituted a condition subsequent permitting forfeiture of

certain service credits pursuant to section 7522.72. There is a 

strong presumption that section 7522.72 is constitutional. (See 

California Housing Finance Agency v. Patitucci (1978) 22 Cal.3d 

171, 175.) Hipsher fails to make out a clear case, free from

reasonable ambiguity, that any contract clause violation 

occurred. (Deputy Sheriffs’ Assn.of San Diego County v. County 

of San Diego, supra, 233 Cal.App.4th at p. 578.)

B

In MacIntyre v. Retirement Board of City and County of 

San Francisco (1941) 42 Cal.App.2d 734 (MacIntyre), the 

petitioners (police lieutenants) applied for retirement after 

satisfying all of the prerequisites of their retirement plans. 

Three days later, a complaint against each of the petitioners

was submitted to the Board of Police Commissioners alleging 
13

conduct unbecoming an officer, insubordination and 

disobedience of orders. (Ibid.) The Board found them “guilty” 

and dismissed them from the department. (Id. at p. 735.) 

On appeal, petitioners contended their rights to a pension 

vested upon the filing of their retirement application and could 

not be defeated by their subsequent dismissal. (MacIntyre, 

supra, 42 Cal.App.2d at p. 735.) The Court of Appeal disagreed, 

concluding, “[i]t is assumed that upon acceptance of a position 

as an officer or employee of a governmental agency, an 

appointee will perform his duties conscientiously and faithfully.” 

(Ibid.) Moreover, “[i]t is never contemplated that an officer or 

employee guilty of conduct warranting dismissal should 

continue in office or be permitted to receive other emoluments 

offered as an inducement to honesty and efficiency. The right to 

a pension is not indefeasible, and an employee, though 

otherwise entitled thereto, may not be guilty of misconduct in 

his position and maintain his rights notwithstanding such 

dereliction of duty.” (Ibid.)

MacIntyre provides helpful guidance as to whether a 

public employee is categorically entitled to a full pension, 

regardless of misconduct, but it did not consider the 

constitutionality of the petitioner’s retirement deprivation.

Hipsher urges us to apply the reasoning in Skaggs v. City 

of Los Angeles (1954) 43 Cal.2d 497. In Skaggs, the plaintiff, a 

police officer, was arrested for suspicion of bribery. (Id. at 

p. 499.) The chief of police relieved him from duty and filed 

charges of conduct unbecoming an officer. (Ibid.) Plaintiff was 

dismissed after he was convicted of bribery, but the Court of 

Appeal ultimately reversed the conviction. (Ibid.) Plaintiff then

sought reinstatement to the force, but he was unsuccessful. 
14

(Ibid.) The pension board subsequently denied his application 

for a service pension. (Ibid.) 

Distinguishing MacIntyre, supra, 42 Cal.App.2d 734, the 

Supreme Court held that plaintiff’s removal from office could 

not result in the forfeiture of his pension benefits because it was 

“not pursuant to any charter provision or specific legislation of 

any nature whatsoever but is merely a refusal of the pension 

board to grant plaintiff’s application for retirement on pension.” 

(Skaggs v. City of Los Angeles, supra, 43 Cal.2d at p. 503.) 

Skaggs does not apply to this case because the reduction to 

Hipsher’s retirement benefits was executed pursuant to the 

legislative mandate in section 7522.72, not LACERA’s unilateral 

refusal to pay his full pension.

Hipsher also contends his benefit forfeiture is barred by 

Kern, supra, 29 Cal.2d 848 and Wallace v. City of Fresno 

(1954) 42 Cal.2d 180 (Wallace). We disagree.

In Kern, the petitioner requested retirement after 

completing 20 years of service as a firefighter. (Kern, supra, 29 

Cal.2d at p. 850.) The city amended its charter to eliminate 

pensions altogether for members who, like petitioner, were not

already eligible for retirement. (Ibid.) The Court of Appeal 

concluded (1) a public employee’s vested contractual right to a 

pension “is not rigidly fixed by the specific terms of the 

legislation in effect during any particular period in which he 

serves,” (2) the employee does not have a right to any fixed or 

definite benefits, but only to a “substantial or reasonable 

pension,” and (3) the city violated its contractual obligations by 

enacting legislation that completely repealed petitioner’s vested 

right to a pension. (Id. at pp. 855–856.)

Hipsher’s case is distinguishable from Kern for several 
15

reasons. The issue in Kern was whether the pensioner’s 

retirement benefits already had vested when the city eliminated 

pensions altogether. It is undisputed that Hipsher’s benefits 

were fully vested when he retired in 2013, an event that took 

place before he pled guilty to the federal offense. Moreover, the 

repeal of the pension benefits in Kern did not stem from any 

misconduct, whereas Hipsher’s case involves an alleged jobrelated felony. Finally, unlike the city in Kern, LACERA did not 

completely eliminate Hipsher’s benefits; instead, it preserved 

the benefits attributable to service performed prior to the date of 

the first commission of his offense. (§ 7522.72, subd. (c)(1).)

In Wallace, a retired former police chief was convicted of 

preparing a fraudulent income tax return. (Wallace, supra, 42 

Cal.2d at p. 181.) City ordinances gave the pension board 

discretion to terminate a retiree’s pension following a conviction 

for a felony or a crime involving moral turpitude. (Id. at p. 182.) 

The pension board ordered the termination of Wallace’s 

retirement benefits. (Id. at p. 181.) Citing Kern, the Supreme 

Court held the ordinances were invalid because they did not 

constitute a “reasonable modification” to Wallace’s vested 

pension. (Id. at p. 185.) In reaching this conclusion, Wallace

noted that “termination of all pension rights upon conviction of 

a felony after retirement does not appear to have any material 

relation to the theory of the pension system or to its successful 

operation.” (Ibid.)

Hipsher’s case is different. In Wallace, the ordinance 

applied to any felony that occurred after the pensioner’s 

retirement; section 7522.72 is limited to felonious conduct

during the scope of the pensioner’s official duties. (§ 7522.72, 

subd. (b)(1).) Moreover, section 7522.72 forfeitures are material
16

to the successful operation of public pension funds. 

(See Alameda, supra, 19 Cal.App.5th at p. 75 [PEPRA was 

enacted to help curb abuses in public pension systems].) Section 

7522.72 also does not eliminate all of the pensioner’s vested 

pension rights like the ordinances in Wallace; rather, it forfeits 

the benefits accrued from the earliest date of the commission of 

a qualifying felony offense. (§ 7522.72, subd. (c)(1).)

Application of the forfeiture procedures under section 

7522.72 was not unconstitutional as applied to Hipsher.

II

Hipsher asserts the forfeiture provision in section 7522.72 

violates the ex post facto clause of the California Constitution. 

We disagree.

The state is barred from enacting ex post facto laws 

under both the federal and California Constitutions. (U.S. 

Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) The ex post 

facto clause prohibits laws which “retroactively alter the 

definition of crimes or increase the punishment for criminal

acts.” (Collins v. Youngblood (1990) 497 U.S. 37, 43.)7 The

clause “ensures that individuals have ‘fair warning’ about the 

effect of criminal statutes,” and “‘restrict governmental power by 

restraining arbitrary and potentially vindictive legislation.’ 

[Citation.]” (Landgraf v. USI Film Products (1994) 511 U.S. 

244, 266-267, fn. omitted.) 

The prohibition against ex post facto legislation applies 

almost exclusively to criminal statutes but, in limited 

circumstances, it can apply to civil legislation. (Roman Catholic 

 

7 The federal and state ex post facto clauses are interpreted 

identically. (People v. Helms (1997) 15 Cal.4th 608, 614.)
17

Bishop of Oakland v. Superior Court (2005) 128 Cal.App.4th 

1155, 1162.) “Despite the Legislature’s clear intent to establish 

civil, not criminal proceedings, we will find an ex post facto 

violation if the statutory scheme is so punitive in purpose or 

effect that it negates the Legislature’s intentions. This requires 

the ‘clearest proof,’ however.” (Id. at p. 1170.) Thus, the fact 

that a statute is labeled as civil is not dispositive. (Id. at p. 

1162.)

“Whether a statutory scheme is civil or criminal under the 

ex post facto doctrine is first of all a question of statutory 

construction. We consider the statute’s text and structure to 

determine the legislative objective. If we conclude that the 

statute as applied retroactively was intended to punish, then 

our inquiry is over and we will find an ex post facto violation. 

[Citation.]” (Roman Catholic Bishop of Oakland v. Superior 

Court, supra, 128 Cal.App.4th at p. 1169.)

Section 7522.72 is a civil statute, and Hipsher concedes 

the Legislature did not intend it to be criminal in nature. He 

contends, however, that the purpose and effect of 

section 7522.72 are so punitive that it must be considered 

punishment. He is mistaken.

The purpose of PEPRA was, in part, “‘to reset overly 

generous and unsustainable pension formulas for both current 

and future workers.’” (Marin, supra, 2 Cal.App.5th at pp. 681-

682, quoting Little Hoover Com., Public Pensions for Retirement 

Security (Feb. 2011), p. 53.) Stated another way, PEPRA was 

enacted “in an attempt to curb what were seen as pervasive 

abuses in public pension systems throughout 

California, . . .” (Alameda, supra, 19 Cal.App.5th at p. 75.)

“Only the ‘clearest proof’ will suffice to override the 
18

Legislature’s stated intent and render a nominally civil statute 

penal for ex post facto purposes. [Citation.]” (21st Century 

Insurance Co. v. Superior Court (2005) 127 Cal.App.4th 1351, 

1362.) In making this determination, courts consider the 

following seven factors: (1) whether the sanction involves an 

affirmative disability or restraint, (2) whether it has historically 

been regarded as a punishment, (3) whether it comes into play 

only on a finding of scienter, (4) whether its operation will 

promote the traditional aims of punishment—retribution and 

deterrence, (5) whether the behavior to which it applies is 

already a crime, (6) whether there is a rational alternative 

purpose, and (7) whether it appears excessive in relation to the 

alternative purpose assigned. (Kennedy v. Mendoza-Martinez

(1963) 372 U.S. 144, 168-169 (Mendoza-Martinez).) These

factors represent “‘useful guideposts,’” but are “‘neither 

exhaustive nor dispositive.’” (Smith v. Doe (2003) 538 U.S. 84, 

97.)

The forfeiture in section 7522.72 satisfies the fifth factor

because it applies to behavior which is already a crime. The 

fourth factor is arguably satisfied because the forfeiture will 

promote the traditional aims of punishment—retribution and 

deterrence. The remaining factors are not satisfied.

Regarding the first factor, the loss of retirement benefits 

does not constitute an “affirmative disability or restraint”. “The 

paradigmatic restraint is imprisonment. [Citation.]” (21st 

Century Insurance Co. v. Superior Court, supra, 127 Cal.App.4th 

at p. 1364.) Unlike imprisonment or similar restraints on 

liberty, civil penalties such as a forfeiture of retirement benefits 

do not constitute an “affirmative disability or restraint.” (See 

ibid.)
19

Turning to the second factor, a reduction in retirement 

benefits is not historically regarded as punishment in a penal 

sense. (See e.g., United States v. Ursery (1996) 518 U.S. 267, 

270-271 [civil forfeitures do not constitute punishment]; 

MacLean v. State Board of Retirement (2000) 432 Mass. 339, 

351-352 [revocation of pension benefits following a job-related 

conviction is not criminal punishment]; Doherty v. Retirement 

Board of Medford (1997) 425 Mass. 130, 136-137 [forfeiture of 

retirement benefits following a job-related conviction does not 

render statute “so punitive as to overcome its restitutionary 

purpose”].) Moreover, Hipsher’s first claim of error is that 

section 7522.72 violates the contracts clause.

With respect to the third factor, scienter is not required 

because section 7522.72 applies to a conviction for “any felony” 

arising out of the performance of his or her official duties. 

(§ 7522.72, subd. (b).)

As to the sixth factor, one of the purposes underlying 

PEPRA was to curb pension abuse and ensure adequate funding 

of the system as a whole. (See Alameda, supra, 19 Cal.App.5th 

at p. 75.) Preserving the pension system by curbing abuses is a 

rational, nonpunitive purpose.

Turning to the seventh factor, the pension reduction 

effected by section 7522.72 is not excessive in relation to the 

alternative purpose assigned. The forfeiture is limited to the 

period during which the pensioner committed the job-related 

felony. (§ 7522.72, subd. (c)(1).) Moreover, any contributions to 

the fund made by the pensioner are returned “upon the 
20

occurrence of a distribution event.”

8 (§ 7522.72, subd. (d)(1).) 

The forfeiture in section 7522.72 is proportional to the

wrongdoing. 

We conclude the Mendoza-Martinez factors do not override 

the legislative intent underlying PEPRA. Hipsher fails to 

demonstrate his case falls within the “limited circumstances” in 

which the ex post facto clause applies to civil legislation.

III

The County contends the trial court erred by issuing the 

writ of mandate because (1) Hipsher was not owed any 

additional due process prior to the reduction to his retirement 

benefits, (2) any additional due process, if owed, must be 

provided by LACERA, and (3) the County was not named as a 

respondent in the writ.9

LACERA asserts the writ was erroneously issued because

(1) it had a ministerial duty to adjust Hipsher’s retirement 

benefits once the County provided notice of Hipsher’s job-related 

felony conviction, (2) the Legislature did not intend due process 

other than the process in the underlying criminal proceeding 

itself, and (3) the County should provide any additional process 

owed to Hipsher.

 

8 “Distribution event” includes separation from 

employment, death, or retirement. (§ 7522.72, subd. (d)(3).)

9 The caption page of the peremptory writ names LACERA 

as the respondent and the County as a real party in interest; 

however, the text of the writ itself names both LACERA and the 

County as respondents. This contention is moot in light of our 

disposition regarding the County’s second argument.
21

A. Standard of Review

When reviewing a trial court’s ruling on a writ of mandate, 

“‘“the appellate court is ordinarily confined to an inquiry as to 

whether the findings and judgment of the trial court are 

supported by substantial, credible and competent evidence. This 

limitation, however, does not apply to resolution of questions of 

law where the facts are undisputed. In such cases, as in other 

instances involving matters of law, the appellate court is not 

bound by the trial court’s decision, but may make its own 

determination.’” [Citations.]” (Alameda, supra, 19 Cal.App.5th 

at pp. 89–90.)

B. The Reduction to Hipsher’s Vested Pension Implicated His Due 

Process Rights

A person may not be deprived of life, liberty or property 

without due process of law. (U.S. Const., 14th Amend.; Cal. 

Const., art. I, § 7, subd. (a).) The due process clause protects an

individual’s liberty interest in freedom from arbitrary 

adjudicative procedures. (People v. Ramirez (1979) 25 Cal.3d 

260, 264, 268.) The requirements of due process extend to 

administrative adjudications. (Today’s Fresh Start, Inc. v. Los 

Angeles County Office of Education (2013) 57 Cal.4th 197, 214.) 

The threshold question is whether Hipsher’s retirement 

benefits are a property interest encompassed within Fourteenth 

Amendment protection. We conclude that they are.

The refusal to pay a public retiree’s vested benefits is an 

act under color of state law. (See Thorning v. Hollister School 

Dist. (1992) 11 Cal.App.4th 1598, 1610.) The deprivation of a 

public employee’s vested pension invokes a property right, “‘the 

taking of which would be a denial of Due Process.’” (Ibid.; 

accord, Pearson v. Los Angeles County (1957) 49 Cal.2d 523, 
22

532.) As articulated by the Supreme Court of the United States, 

“[t]he Fourteenth Amendment’s procedural protection of 

property is a safeguard of the security of interests that a person 

has already acquired in specific benefits.” (Board of Regents of 

State Colleges v. Roth (1972) 408 U.S. 564, 576.) 

These decisions make clear that some form of due process

is required before the state may reduce a pensioner’s vested 

retirement benefits. To allow otherwise would invite the kind of 

arbitrary and capricious conduct the due process clause seeks to 

avoid. (See Nebbia v. New York (1934) 291 U.S. 502, 525.)

C. What Process is Required?

A public employee who commits a job-related felony “shall 

forfeit” all benefits, other than their own contributions, earned 

from the earliest date of the commission of a qualifying felony. 

(§ 7522.72, subds. (b)(1), (c)(1).) However, section 7522.72 does 

not provide a mechanism for the pensioner to challenge an 

adverse decision. 

When protected interests are implicated, as they are in 

this case, we must decide what procedures are required to

satisfy due process. (Murden v. County of Sacramento (1984) 

160 Cal.App.3d 302, 307.) The answer is evident when the 

conviction, on its face, necessarily stems from a public

employee’s performance of official duties. (E.g., Pen. Code, 

§§ 424 [embezzlement of public funds]; 68 [receipt of bribe by 

public officer]; 425 [negligent handling of public moneys]; 86 

[receipt of bribe by legislator]; § 93 [receipt of bribe by judicial 

officer]; § 118.1 [false statement in criminal report by peace
23

officer]; 289.6, subd. (i) [sexual activity with confined adult by 

public employee with prior conviction].)10 

The criminal proceeding leading to conviction of a crime 

that per se involves the public employee’s official duties and 

which therefore, as a matter of law, subjects the employee to 

benefit forfeiture under section 7522.72, necessarily satisfies

any due process concerns. “In such cases there is no real 

necessity to examine the facts, resolve any conflicts in the 

evidence, and exercise any judgment with respect thereto, 

[because] the only question is a legal one, i.e., whether the 

[person] was convicted of a crime of the character specified in 

the statute [Citations.] In these cases due process is satisfied 

because the [person] had his day in court when he was put to 

trial for and convicted of the commission of such crime. 

[Citation.]” (Slaughter v. Edwards (1970) 11 Cal.App.3d 285, 

294.)

1. Hipsher Was Deprived of Due Process

The issue is more complex when the crime does not 

necessarily arise from the scope of the pensioner’s public duties. 

(See e.g., Slaughter v. Edwards, supra, 11 Cal.App.3d at p. 294 

[in cases where the conviction itself is not dispositive, an 

independent examination is required].) That is the case before 

us. Hipsher’s crime for operating an illegal gambling business 

(18 U.S.C. § 1955) did not, on its face, involve the performance of 

his official duties. Nor does the statement of facts set forth in 

Hipsher’s plea agreement reference where he conducted the 

gambling operation. He admitted the gambling violation but did 

 

10 This is by no means an exhaustive list of qualifying 

crimes.
24

not admit that it occurred in the performance of his public 

employment.

In determining that Hipsher’s conviction was job-related, 

and therefore qualified as a basis for forfeiture under section 

7522.72, the County Human Resources manager relied on 

Homeland Security reports prepared as part of the investigation 

of Hipsher’s federal criminal case.

11 It appears Hipsher was not 

notified of this review. The County then sent a referral letter to 

LACERA indicating Hipsher’s conviction was related to his job. 

Hipsher was not sent a copy of that letter. 

LACERA automatically reduced Hipsher’s retirement 

benefits upon receiving the referral letter. The letter notes that 

“[s]ince the law requires the felony to be job related, the County 

Department of Human Resources (DHR) is responsible for 

making a determination that the felony is jobrelated.” 

We conclude that the County’s exclusive reliance on the 

Homeland Security investigation reports did not provide

Hipsher notice and an opportunity to be heard as to whether his 

conviction qualifies as a job-related felony offense under section 

7522.72.

“In administrative proceedings, the requisites of due 

process will vary according to the competing interests at issue, 

so long as basic requirements of notice and hearing are satisfied. 

[Citations.]” (Rupf v. Yan (2000) 85 Cal.App.4th 411, 428-429.) 

At a minimum, Hipsher was entitled to written notice 

reasonably calculated to apprise him of the pendency of the

 

11 Homeland Security reports, like police reports, are not 

part of the record of conviction. (Cf. Draeger v. Reed (1999) 69 

Cal.App.4th 1511, 1523.)
25

section 7522.72 action, and the right to present his objections 

before an impartial decision maker. (Bergeron v. Department of 

Health Services (1999) 71 Cal.App.4th 17, 24 [due process 

requires opportunity to present objections]; Haas v. County of 

San Bernardino (2002) 27 Cal.4th 1017, 1025 [due process 

requires the adjudicator to be impartial].) “‘A formal hearing, 

with full rights of confrontation and cross-examination is not 

necessarily required. [Citation.]’” (Bergeron, at p. 23.) Indeed, 

the County now affords this model of process to pensioners who 

may be subject to forfeiture pursuant to section 7522.72.12

2. Hipsher was Prejudiced by the Denial of Due Process

The County contends that even assuming Hipsher was 

entitled to some form of additional due process, he was not 

prejudiced by any deficiency in process. Generally, a party is 

not deprived of due process in an administrative proceeding 

unless the deficiency in process resulted in prejudice. (See 

Hinrich v. County of Orange (2004) 125 Cal.App.4th 921, 928 

[procedural due process violations assessed for harmlessness].) 

In this case, insofar as the record shows, prejudice is

evident because (1) Hipsher’s conviction does not, on its face, 

satisfy the forfeiture provisions of section 7522.72, (2) the 

verified petition for writ of mandate rejected the notion that his 

conviction arose out of the performance of his official duties, (3) 

information contained in the Homeland Security reports is not 

part of the record of conviction, and (4) Hipsher was not given 

notice or an opportunity to contest the allegation that his felony 

conviction was job-related.

We conclude Hipsher was prejudicially denied his 

constitutionally protected due process rights. At a minimum, 

 

12 See footnote 4, ante.
26

Hipsher was entitled to notice of the proposed forfeiture under 

section 7522.72, along with an opportunity to contest his 

eligibility for forfeiture before an impartial decision maker. The 

remaining issue is which public entity is required to adjudicate 

these rights.

D. Section 7522.72 is Ambiguous as to Which Agency is Tasked 

with Determining Whether the Offense is Job-Related

The final question is whether the County or LACERA is 

obligated to afford the required due process. The trial court 

found the County was obliged to do so because it is “the 

governmental entity that made the decision that ultimately 

deprived Petitioner of his property.” We disagree.

The judiciary’s role in construing a statute is to ascertain 

the intent of the Legislature so as to effectuate the purpose of 

the law. (Merced Irrigation District v. Superior Court (2017) 

7 Cal.App.5th 916, 924 (Merced).) To this end, courts start with 

the words of the statute, giving them their usual and ordinary 

meaning. (Ibid.) 

Section 7522.72 requires the prosecuting agency, within 

60 days after a qualifying conviction, to notify the public 

employer who employed the employee at the time of the 

commission of the felony of (1) the date of conviction, and (2) the 

date of the first known commission of the felony. (§ 7522.72, 

subd. (e)(1).) In turn, the public employer is required to notify 

the public retirement system of the employee’s qualifying 

conviction within 90 days of the conviction. (§ 7522.72, subd. 

(f).) Section 7522.72 does not address which entity determines 

whether the pensioner’s conviction was connected to 

his or her official duties. 

“When statutory language is susceptible to more than one 
27

reasonable interpretation, courts must (1) select the 

construction that comports most closely with the apparent 

intent of the Legislature, with a view to promoting rather than 

defeating the general purpose of the statute and (2) avoid an 

interpretation that would lead to absurd consequences. 

[Citation.]” (Merced, supra, 7 Cal.App.5th at p. 925.) One 

difficulty in ascertaining the intent of the Legislature is that, in 

many cases, the Legislature “‘“had no real intention, one way or 

another, on the point in question; that if they had, they would 

have made their meaning clear . . . .”’’ [Citation.]” (Ibid.) 

This difficulty is present here because nothing in the text 

or legislative history of section 7522.72 contemplated that the 

pensioner’s conviction would not, on its face, arise out of the 

performance of his or her official duties. Given that section 

7522.72 is ambiguous, “[w]e must select the construction that 

comports most closely with the apparent intent of the 

Legislature, with a view to promoting rather than defeating the 

general purpose of the statute, and avoid an interpretation that 

would lead to absurd consequences. [Citation.]” (People v. 

Jenkins (1995) 10 Cal.4th 234, 246.)

E. LACERA Shall Afford the Requisite Due Process

LACERA contends “it is reasonable to conclude that the 

Legislature intended that the employer make the ultimate 

determination whether the elements under Section 7522.72 

[have] been satisfied and to report this information to the 

retirement system.” In essence, LACERA asserts it had a 

ministerial duty to initiate forfeiture proceedings once the 

County reported Hipsher’s job-related conviction, pursuant to its 

duty set forth in section 7522.72, subdivision (f).

The California Constitution provides that the retirement 
28

board of each public pension holds the “sole and exclusive 

responsibility” to administer the system. (Cal. Const. art. XVI, 

§ 17, subd. (a).) To this effect, “LACERA’s Board of Retirement 

[citation] is charged with the responsibility of ascertaining the 

eligibility for and paying pension benefits to eligible 

employees . . . .” (Weber v. Board of Retirement of Los Angeles

County Retirement Association (1998) 62 Cal.App.4th 1440, 

1442.) 

Indeed, once a person has separated from his or her public 

employment, the County’s Civil Service Commission “has no 

further jurisdiction except in the limited situations specified in 

the governing constitutional charter or statutory provisions.” 

(Zuniga v. Los Angeles County Civil Service Commission (2006) 

137 Cal.App.4th 1255, 1260.) Section 7522.72 does not 

expressly include any such provision; thus, in imposing a 

reporting duty on the County, the statute does not disregard the 

established rule that the retirement board of a public pension—

here, LACERA—has the obligation to determine eligibility or 

ineligibility for pensions. 

Subdivision (f) requires the public employer to notify the 

retirement system of the employee’s qualifying conviction 

“within 90 days of the conviction.” (§ 7522.72, subd. (f).) Were

the County responsible for providing the necessary due process 

then, within 90 days of the conviction, it would have to (1) 

discover the conviction, (2) comb through the criminal records 

(which often span thousands of pages) to determine whether it 

qualifies as a job-related felony, (3) provide notice to the 

pensioner, (4) determine the earliest date of commission, (5) give 

the employee an opportunity to contest the County’s 

preliminary finding, (6) render a decision, and (7) perhaps 
29

provide additional layers of administrative review.13 Requiring 

this entire process to be completed within 90 days would 

produce an unworkable procedure. We are bound to interpret

statutes so as to avoid “unworkable” results. (Los Angeles 

Unified School District v. Garcia (2013) 58 Cal.4th 175, 194.)

Section 7522.72 also provides that “[t]he operation of this 

section is not dependent upon the performance of the 

[employer’s] notification obligations specified in this

subdivision.” (§ 7522.72, subd. (f), emphasis added.) It appears 

“this section” means all of section 7522.72, and is not limited to 

the public employer’s reporting obligations. (See People v. Neely

(2004) 124 Cal.App.4th 1258, 1262 [reference to “this section” of 

a statute means the entire statute].) Contrary to LACERA’s 

interpretation, the forfeiture obligation in section 7522.72 is

independent of the employer’s reporting obligations.

Our conclusion is further supported by Danser v. 

California Public Employees’ Retirement System (2015) 240 

Cal.App.4th 885 (Danser). There, a judge was convicted of 

conspiring to obstruct justice while serving as a superior court 

judge. (Id. at p. 887.) The judge retired from office after the 

conviction but before sentencing. (Id. at p. 888.) The court later

reduced the felony to a misdemeanor, terminated probation and 

dismissed the charges. (Id. at p. 887.) California’s Public 

Employees’ Retirement System subsequently determined that 

the judge had been convicted of a felony offense in the course 

 

13 “For example, if the administrative proceeding includes a 

right to appeal an allegedly improper action, a plaintiff must 

generally pursue that administrative appeal in order to exhaust 

his or her administrative remedies.” (Clews Land & Livestock, 

LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 184.)
30

and scope of his judicial duties, and therefore was subject to

benefit forfeiture under section 75526.14 (Id. at p. 888.) 

The judge unsuccessfully challenged the forfeiture

determination by a petition for writ of mandate. (Danser, supra, 

240 Cal.App.4th at p. 888.) Pertinent here, the judge argued on 

appeal that the retirement system lacked jurisdiction to 

interpret criminal laws in order to determine whether forfeiture 

was appropriate. (Id. at p. 891.) The Court of Appeal held 

“CALPERS acted within its authority in interpreting the

[applicable] retirement law” because it is charged with 

administering the retirement system, and “is responsible for 

determining the right of a public pension system member to 

receive benefits. [Citation.]” (Ibid.) Danser supports our 

conclusion that the retirement board is the adjudicatory entity 

with authority to determine whether forfeiture of Hipsher’s

retirement benefits was warranted.

Finally, LACERA contends that “requiring the retirement 

system to provide due process is not workable” because “review 

by the retirement system would place the retirement system in 

the unseemly position of determining the propriety of decisions 

expressly given by the Legislature to the prosecutor and the 

employer.” This argument misstates the prosecutors’ and 

employers’ obligation under section 7522.72, which is merely to 

report the conviction. 

 

14 Section 75526 provides that a judge who is convicted of a

crime committed while holding judicial office, that is punishable 

as a felony, and which either involves moral turpitude under that 

law or was committed in the course and scope of performing the 

judge’s duties, forfeits any retirement benefits beyond the 

amount of his or her contributions to the system.
31

(§ 7522.72, subds. (e) & (f).) 

Further, LACERA has not shown that providing due 

process is “not workable.” In fact, LACERA has an existing 

mechanism for administrative appeals “when an individual 

disagrees with LACERA’s decision on matters related to his or 

her . . . retirement benefits, . . .” (LACERA Website, 

Administrative Appeal Procedure, <https://www.lacera.com/

BoardResourcesWebSite/BoardOrientationPdf/admin_appeal_pr

ocedure.pdf> [as of June 8, 2018].)15 This procedure includes 

three levels of review, culminating in an appeal to the Board of 

Retirement, placement on the Board’s agenda, and a written 

decision from LACERA’s Legal Office. (Ibid.) In any event, the 

fact that providing constitutional due process is burdensome 

does not excuse the failure to provide it. 

Based on the foregoing, we conclude LACERA is obligated 

to afford Hipsher due process protections in accordance with its 

existing administrative appeal procedures, and consistent with 

this opinion. 

DISPOSITION

The judgment is modified to reflect that LACERA, not the 

County, shall afford the requisite due process. This process

shall conform with LACERA’s existing administrative 

 

15 On May 3, 2018, the County filed a request for judicial 

notice of LACERA’s administrative appeal process. The County’s 

request for judicial notice is granted. (Evid. Code, §§ 459 

[permitting judicial notice of any matter specified in Evidence 

Code section 452], 452, subd. (h) [permitting judicial notice of 

“[f]acts and propositions that are not reasonably subject to 

dispute and are capable of immediate and accurate determination 

by resort to sources of reasonably indisputable accuracy”].)
32

procedures and, at a minimum, provide Hipsher (1) notice of 

LACERA’s intent to initiate forfeiture proceedings, and the 

reasons therefor, and (2) an opportunity to present his 

objections, before LACERA’s impartial decision maker, 

regarding whether he falls within the scope of section 7522.72. 

The judgment is affirmed as modified. Each party shall bear its 

own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)

CERTIFIED FOR PUBLICATION

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.