On September 29, 2015, the California Court of Appeal, Third Appellate District, held in the case of Danser v. California Public Employee Retirement System et al., that former Superior Court Judge William Danser was not eligible to receive a pension as a result of his being convicted of a felony offense in the course and scope of his judicial duties.
CalPERS had concluded that under the terms of Danser’s pension plan — the Judges’ Retirement System II (JRS II) — he was subject to the benefit forfeiture provision of Government Code Section 75526 and the Court of Appeal concurred.
Facts
“In September, 2003, a Criminal Grand Jury charged [Danser] by indictment with one felony count of conspiracy to pervert and obstruct justice under Penal Code Section 182(a)(5). The Grand Jury also charged [Danser] with six misdemeanor counts of obstruction of justice, one misdemeanor count of attempted obstruction of justice, and one misdemeanor count of violating Section 8920. The facts leading to the indictment were that, over a period of about two years, [Danser] conspired with a Los Gatos police officer to dismiss traffic tickets for friends and people associated with professional sports teams, and otherwise grant preferential treatment in the disposition of cases. [Danser] went to trial before a jury on all charged counts in April, 2004. On or about April 30, 2004, the jury convicted [Danser] on all nine counts.”
The trial court suspended imposition of sentence and placed Danser on probation for three years. The Court of Appeal affirmed the judgment and the California Supreme Court denied review. Months later, the trial court reduced the felony charge to a misdemeanor, terminated probation, and granted Danser’s petition to dismiss the criminal charges against him. After the conviction, but before sentencing, Danser retired from judicial office.
“The California Public Employees’ Retirement System (CalPERS) subsequently determined that Danser was convicted of a felony offense in the course and scope of his judicial duties and that the conviction became final when the California Supreme Court denied review. Accordingly, CalPERS concluded that under the terms of Danser’s pension plan — the Judges’ Retirement System II (JRS II) — he is subject to the benefit forfeiture provision of Government Code Section 75526. CalPERS refunded Danser’s retirement contributions and determined that he is precluded from receiving any retirement benefits from JRS II.”
Danser filed a writ challenging the action by CalPERS. The Superior Court denied his writ petition and he appealed to the Court of Appeal where he claimed “(1) the CalPERS forfeiture action was time-barred; (2) CalPERS lacked jurisdiction to determine whether forfeiture occurred in this case; and (3) Danser is not subject to forfeiture of his retirement benefits because there was no final conviction punishable as a felony.”
Court’s Analysis
The Court of Appeal analyzed all of Danser’s arguments and concluded as follows:
First, “Danser’s contention [that the CalPERS action was time barred] is forfeited because he did not support it with legal analysis, and, in addition, because it was not raised in the administrative hearing.”
Second, Danser “contends CalPERS lacked jurisdiction to determine whether forfeiture occurred in this case. He claims CalPERS has no jurisdiction to interpret the Penal Code or other criminal laws and procedures. Danser’s contention lacks merit.”
“CalPERS is charged with administering [the Judge’s Retirement system] and CalPERS is responsible for determining the right of a public pension system member to receive benefits. CalPERS acted within its authority in interpreting the retirement law to determine whether Danser was subject to the forfeiture provision of Section 75526.”
Third, Danser argues that “he is not subject to the forfeiture of his retirement benefits because there was no final conviction punishable as a felony. Section 75526 provides: ‘A judge who pleads guilty or no contest or is found guilty of a crime committed while holding judicial office that is punishable as a felony under California or federal law and which either involves moral turpitude under that law or was committed in the course and scope of performing the judge’s duties, and the conviction becomes final shall not receive any benefits from the system, except that the amount of his or her contributions to the system shall be paid to him or her by the system.’”
“Danser claims the forfeiture statute does not apply to him because the trial court suspended imposition of sentence and subsequently reduced the felony charge to a misdemeanor, terminated probation, and granted Danser’s petition to dismiss the criminal charges against him.”
The Court of Appeal disagreed and stated that, “Conspiracy to obstruct justice is punishable as a felony and the civil consequences for Danser were triggered when a jury found him guilty of that crime, the Court of Appeal affirmed the judgment and the California Supreme Court denied review.”
And, finally, Danser argued that after the trial court dismissed the charges pursuant to Penal Code Section 1203.4, there was no conviction at all.
However, the Court of Appeal held that “(t)he dismissal of the case in October 2006 did not erase the fact that a jury found Danser guilty of a crime punishable as a felony, and it did not alter the civil consequences flowing from the jury’s verdict, consequences that attached many months before the dismissal when the Court of Appeal affirmed the judgment and the California Supreme Court denied review.”
HOW THIS AFFECTS YOUR AGENCY
In 2005, AB 1044 added Section 1243 to the California Government Code, which applies to any elected public officer who takes public office, or is reelected to public office, on or after January 1, 2006.
Section 1243 (b) states: “If an elected public officer is convicted during or after holding office of any felony involving accepting or giving, or offering to give, any bribe, the embezzlement of public money, extortion or theft of public money, perjury, or conspiracy to commit any of those crimes arising directly out of his or her official duties as an elected public officer, he or she shall forfeit all rights and benefits under, and membership in, any public retirement system in which he or she is a member, effective on the date of final conviction.”
As such, there is little direct impact on most law enforcement agencies, other than the Offices of the Sheriff and/or District Attorney.
However, this would also affect cities and counties which have elected officials, such the County Assessor, or an elected treasurer, clerk, or auditor. Section 1243(g) states: “For purposes of this section, ‘public officer’ means an officer of the state, or an officer of a county, city, city and county, district, or authority, or any department, division, bureau, board, commission, agency, or instrumentality of any of these entities.”
As always, it is imperative that you seek advice and guidance from your agency’s designated legal advisor when dealing with legal issues. However, if you wish to discuss this case in greater detail, feel free to contact me at (714) 446 – 1400 or via email atmjm@jones-mayer.com.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.