                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4320-17T1

STEPHEN W. THOMPSON,

           Petitioner-Appellant,

v.

BOARD OF TRUSTEES, JUDICIAL
RETIREMENT SYSTEM,

     Respondent-Respondent.
________________________________

                    Argued April 30, 2019 – Decided June 3, 2019

                    Before Judges Geiger and Enright.

                    On appeal from the Board of Trustees of the Judicial
                    Retirement System, Department of the Treasury,
                    Docket No. 6-614.

                    Brian A. Pelloni argued the cause for appellant
                    (Hornstine & Pelloni, LLC, attorneys; Brian A. Pelloni,
                    on the briefs).

                    Robert S. Garrison, Jr., Deputy Attorney General,
                    argued the cause for respondent (Gurbir S. Grewal,
                    Attorney General, attorney; Melissa H. Raksa,
                    Assistant Attorney General, of counsel; Robert S.
                    Garrison, Jr., on the brief).
PER CURIAM

      Petitioner Stephen W. Thompson appeals from a final decision of the State

House Commission, sitting as the Board of Trustees (Board) for the Judicial

Retirement System (JRS), to forfeit his entire JRS account as dishonorable. We

affirm.

                                        I.

      The following facts are not in dispute. Following his graduation from

college, Thompson voluntarily enlisted in the Army. He commenced service in

January 1968, and graduated from Officer Candidate School in November 1968,

as a second lieutenant. He was deployed to Vietnam on July 4, 1969, as an

infantry platoon leader.

      Thompson's platoon was immediately and continuously engaged in direct

combat. On July 29, 1969, Thompson was gravely injured; he sustained twenty

rounds of automatic fire at point-blank range, resulting in the loss of his right

leg, bladder, penis, testicles, and seven inches of height.

      Thompson endured a lengthy and complicated recovery, spending months

in intensive care at a hospital in Japan, where he repeatedly came close to death

and suffered serious complications. He was subsequently transferred to Walter



                                                                         A-4320-17T1
                                         2
Reed Army Medical Center, where he spent over two years undergoing multiple

surgeries during his recovery and rehabilitation.

      Thompson was awarded a Silver Star for gallantry in action, a Purple

Heart decoration for being wounded in action, and a Vietnam Service Medal.

He was honorably discharged in May 1972.

      Thompson then attended and graduated from law school and was admitted

to the Bar of New Jersey in December 1975. His public service began in 1979,

when he was appointed Haddon Township municipal prosecutor. Thompson

was appointed as the Township's municipal court judge the following year.

      Thereafter, Thompson served as an Administrative Law Judge (ALJ) from

1984 until he was appointed to the Superior Court Judge on July 7, 1989. He

served in that capacity until April 30, 2003, when he was arrested and suspended

without pay from his judicial duties.      Thompson's arrest and suspension

stemmed from an investigation relating to child pornography, which led to the

issuance and execution of search warrants on his homes in Avalon and Haddon

Township.

      The search of the Avalon residence yielded thousands of images of child

pornography in both electronic and print form; it also uncovered films of child

pornography in digital, videocassette, and 8mm format. At Thompson's Haddon


                                                                        A-4320-17T1
                                       3
Township residence, investigators seized a videotape containing images of a

prepubescent male child masturbating and being anally penetrated, and a

computer containing numerous images of child pornography. The videocassette

seized from Thompson's video camera depicted a young male engaging in

sexually explicit conduct at Thompson's direction. The footage also captured

Thompson performing fellatio on the child. The forty-minute long videotape

was recorded during Thompson's five-day trip to St. Petersburg, Russia in

September 2002.

      On May 21, 2003, Thompson submitted his retirement application as a

Superior Court Judge. Thompson sought to make his retirement effective April

30, 2003. Upon receipt of the letter, the Board treated the early retirement

application as being effective June 1, 2003. At that point, Thompson had

accrued judicial service of thirteen years and ten months and non-judicial service

of thirteen years. If awarded retirement for his total service, Thompson would

have received $51,916.19 annually, based on 36.82 percent of his final annual

salary of $141,000. The Board voted to hold Thompson's retirement application

in abeyance until his criminal charges were resolved. 1


1
   "N.J.S.A. 43:2-1 expressly provides that pension payments to public
employees convicted of crimes involving moral turpitude shall be suspended


                                                                          A-4320-17T1
                                        4
      The State's charges were superseded by a federal indictment, which

charged Thompson with knowingly and willfully possessing child pornography,

in violation of 18 U.S.C. § 2252A(a)(5)(B) and (2); and knowingly and willfully

employing, using, inducing, enticing, or coercing a minor to engage in sexually

explicit conduct, for the purpose of producing a visual depiction of such

conduct, which was transported in interstate and foreign commerce, in violation

of 18 U.S.C. § 2251(a) and (d), and (2).      The criminal complaint alleged

Thompson possessed child pornography "[o]n or about April 30, 2003, at

Avalon," and undertook actions to engage a minor in sexually explicit conduct

"[f]rom on or about September 20, 2002, through on or about April 30, 2003, at

Avalon."

      Thompson pleaded not guilty and asserted an insanity defense. 2 "[T]he

core of Thompson's insanity defense . . . was that he did not understand the

moral wrongfulness of his actions." United States v. Thompson, 310 Fed. App'x

485, 486 (3d Cir. 2008). Tried to a jury in federal District Court, Thompson




during the period of confinement." Eyers v. Pub. Emps.' Ret., 91 N.J. 51, 57
(1982); see also N.J.A.C. 17:1-6.1(d).
2
  Thompson's insanity defense was predicated on post-traumatic stress disorder
and the trauma caused by his combat injuries.


                                                                       A-4320-17T1
                                      5
was found guilty of sexual exploitation of a minor and not guilty by reason of

insanity of possession of child pornography. 3 Thompson was sentenced to the

ten-year mandatory minimum prison term, 4 followed by a three-year term of

supervised release. He was ordered to pay a $25,000 fine and to register as a

sex offender with State authorities. The Third Circuit Court of Appeals affirmed

Thompson's conviction. Ibid.

      Attorney ethics charges were also levied against Thompson. The Office

of Attorney Ethics (OAE) recommended disbarment based on Thompson's

criminal conviction. The charges were then considered by the Disciplinary

Review Board (DRB) pursuant to Rule 1:20-13(c)(2). The DRB agreed with the

OAE's recommendation. In its decision filed with the Supreme Court pursuant

to Rule 1:20-13(c), the DRB recommended that Thompson be disbarred based

on his conviction for the sexual exploitation of a minor in violation of 18 U.S.C.

§ 2251A(a) and (2), conduct that violated RPC 8.4(b) (commission of a criminal


3
  The transcripts of the trial testimony and reports issued by Thompson's experts
were not part of the record before the Board, and are not part of the record on
appeal.
4
   Notably, the mandatory minimum sentence for violation of 18 U.S.C. §
2251(a) was raised to fifteen years in April 2003. Thompson, 310 Fed. App'x at
485 n.1.



                                                                          A-4320-17T1
                                        6
act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer). 5

Disciplinary Review Bd. v. Thompson, DRB 08-059, final decision, (Oct. 21,

2008),   http://njlaw.rutgers.edu/collections/drb/decisions/08-059.pdf;        In    re

Thompson, 197 N.J. 464, 464 (2009). The Supreme Court adopted the DRB's

recommendation, disbarring Thompson effective January 29, 2009. Thompson,

197 N.J. at 464.

      Thompson was released from incarceration on June 11, 2014; he renewed

his retirement benefits application six months later. The Board rendered a

decision to forfeit Thompson's "entire JRS service and salary credit as

dishonorable." The Board determined that Thompson's actions "constituted a

high degree of moral turpitude," and "violated the public trust." The Board

concluded "[t]he misconduct was ongoing and resulted in the suspension of [his]

judgeship." It noted Thompson admitted his "conduct was deplorable." The


5
  The DRB's decision was not part of the record submitted to the Board or the
ALJ, and was not listed on the Statement of the Items Comprising the Record.
R. 2:5-4(b). The Board did not move to supplement the administrative record
pursuant to Rule 2:5-5(b). See Rudbart v. Bd. of Review, 339 N.J. Super. 118,
123 (App. Div. 2001) (R. 2:5-5(b) "contemplates the filing of a formal motion
seeking that relief, in advance of oral argument"). The DRB's decision was not
published. See R. 1:20-15(a) (DRB decisions are published "only if so directed
by the Supreme Court or if approved for publication by the Committee on
Disciplinary Decisions"). We, nonetheless, take judicial notice of the DRB's
decision, which is a public document issued by a board whose members are
appointed by the Supreme Court. N.J.R.E. 201(a); N.J.R.E. 202(b); R. 1:20-15.
                                                                              A-4320-17T1
                                          7
Board found Thompson's misconduct was "egregious" and "severely discredited

the judiciary system."

      Thompson challenged the forfeiture, and the matter was then transmitted

to the Office of Administrative Law for hearing as a contested case. Both parties

agreed to submit the matter for summary decision pursuant to N.J.A.C. 1:1-12.5.

The ALJ concluded the gravity of Thompson's misconduct warranted total

forfeiture. The ALJ's initial decision was not modified by the Board. As a

result, it was adopted as the Board's final decision by operation of law. N.J.S.A.

52:14B-10(c). This appeal followed.

      Thompson argues:

            I.    THE   STATE   HOUSE    COMMISSION
                  IMPROPERLY FORFEITED APPELLANT'S
                  ENTIRE [TWENTY-SIX PLUS] YEARS OF
                  PENSION CREDIT BASED UPON HIS
                  CONVICTION FOR AN OFFENSE THAT
                  OCCURRED ONLY MONTHS BEFORE HIS
                  RETIREMENT.

                  A.     Where a Pension Forfeiture is Appropriate
                         Based Upon a Criminal Conviction, the
                         Proper Measure of Forfeiture is the
                         Credited Time Between the Offense and
                         Retirement/Removal.

                  B.     The State House Commission Failed to
                         Properly Consider and Balance the Factors
                         Necessary to Support Total Forfeiture.


                                                                          A-4320-17T1
                                        8
                   C.    Pension Statutes are to be Liberally
                         Construed, and Any Doubt About
                         Complete Forfeiture of an Employee's
                         Pension Credit Must be Resolved in Favor
                         of the Employee.

                                        II.

       Appellate courts serve a "limited role" in reviewing administrative agency

decisions. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway

State Prison, 81 N.J. 571, 579 (1980)). We will not overturn an agency decision

"unless there is a clear showing that it is arbitrary, capricious, or unreasonable,

or that it lacks fair support in the record." Stein v. Dep't of Law & Pub. Safety,

458 N.J. Super. 91, 99 (App. Div. 2019) (quoting J.B. v. N.J. State Parole Bd.,

229 N.J. 21, 43 (2017)). Nor will we overturn an agency decision merely

because we would have come to a different conclusion. Stallworth, 208 N.J. at

194.     "Generally, courts afford substantial deference to an agency's

interpretation of a statute that the agency is charged with enforcing.           An

appellate court, however, is 'in no way bound by the agency's interpretation of a

statute or its determination of a strictly legal issue.'" Richardson v. Bd. of Trs.,

Police & Firemen's Ret. Sys., 192 N.J. 189, 196 (2007) (quoting In re Taylor,

158 N.J. 644, 658 (1999)).




                                                                            A-4320-17T1
                                         9
                                      III.

      A public employee must provide "honorable service" to receive pension

or retirement benefits.   N.J.S.A. 43:1-3(a); N.J.A.C. 17:1-6.1(a); see also

Corvelli v. Bd. of Trs., 130 N.J. 539, 550 (1992) (noting all of New Jersey's

public pension statutes have an implied requirement of honorable service, and

forfeiture can be ordered for employees who violate that requirement). The

Board is authorized to order forfeiture, in whole or in part, "for misconduct

occurring during the member's public service which renders the member's

service or part thereof dishonorable." N.J.S.A. 43:1-3(b); N.J.A.C. 17:1-6.1(a),

(c). Ordinarily, to require forfeiture of that portion of a member's pension that

accrued prior to the criminal activity, the Board must find that the misconduct

was related to the member's service. Masse v. Bd. of Trs., 87 N.J. 252, 263

(1981). Nevertheless, forfeiture is not limited to misconduct resulting in a

criminal conviction. Corvelli, 130 N.J. at 552. Rather, "the term 'honorable

service' . . . is sufficiently generic to encompass a broad range of misconduct

bearing on the forfeiture decision, including but not limited to criminal

conviction." Ibid.

      In Uricoli v. Board of Trustees, the Court set forth eleven factors to

balance and consider in pension forfeiture cases. 91 N.J. 62, 77-78 (1982).


                                                                         A-4320-17T1
                                      10
Since 1996, those factors have been codified at N.J.S.A. 43:1-3(c), which

provides:

            In evaluating a member's misconduct to determine
            whether it constitutes a breach of the condition that
            public service be honorable and whether forfeiture or
            partial forfeiture of . . . earned pension . . . benefits is
            appropriate, the [Board] shall consider and balance the
            following factors in view of the goals to be achieved
            under the pension laws:

            (1) the member's length of service;

            (2) the basis for retirement;

            (3) the extent to which the member's pension has
            vested;

            (4) the duties of the particular member;

            (5) the member's public employment history and record
            covered under the retirement system;

            (6) any other public employment or service;

            (7) the nature of the misconduct or crime, including the
            gravity or substantiality of the offense, whether it was
            a single or multiple offense and whether it was
            continuing or isolated;

            (8) the relationship between the misconduct and the
            member's public duties;

            (9) the quality of moral turpitude or the degree of guilt
            or culpability, including the member's motives and
            reasons, personal gain and similar considerations;


                                                                           A-4320-17T1
                                       11
            (10) the availability and adequacy of other penal
            sanctions; and

            (11) other personal circumstances relating to the
            member which bear upon the justness of forfeiture.

            [Ibid.]

The Board may attribute more weight to factors seven, eight, and nine, when

applicable. Corvelli, 130 N.J. at 552-53 (holding total pension forfeiture "was

justified by application of Uricoli factors seven, eight, and nine").

                                       IV.

      Thompson contends the Board failed to provide an explanation of its

findings and analysis of the eleven enumerated factors under N.J.S.A. 43:1-3(c).

He asserts that failure warrants reversal of its final decision. We disagree.

      Recognizing that the eleven statutory factors "must be considered and

balanced to determine the appropriateness of a forfeiture or partial forfeiture,"

the ALJ engaged in the following analysis:

                   In applying the balancing test in N.J.S.A. 43:1-
            3(c), it is factors 7, 8, and 9 that weigh heavily in favor
            of total forfeiture. I concur with the Board that with
            respect to factor 7, the offenses were continuing and not
            isolated, and the crimes committed were grave. With
            respect to factor 8, the relationship between the
            misconduct and the petitioner's public duties was
            direct, and a judge is held to a high degree of
            responsibility to respect and uphold the laws. With
            respect to factor 9, the guilty verdict as to 18 U.S.C. §

                                                                          A-4320-17T1
                                       12
            2251(a), sexual exploitation of a minor, demonstrates a
            high degree of culpability and moral turpitude, and
            petitioner's actions were egregious and constituted a
            violation of the public trust. Petitioner's misconduct
            severely discredited the judiciary system.

                  With respect to factor 11, the other personal
            circumstances that bear upon the justness of forfeiture
            involve petitioner's service in the United States Army
            and his grievous injuries. Further, he served the public
            as a municipal prosecutor, a municipal court judge, an
            administrative law judge, and a judge of the Superior
            Court. During that time, petitioner was never the
            subject of any disciplinary action.

                   I CONCLUDE that petitioner's personal
            circumstances considered with respect to factor 11 do
            not outweigh the overwhelming negatives set forth
            above with respect to factors 7, 8, and 9. Therefore, I
            CONCLUDE that petitioner's entire Judicial
            Retirement System service and salary should be
            forfeited as dishonorable.

The ALJ also relied on language from Uricoli, where the Court noted pension

forfeiture "is a penalty or a punishment for wrongful conduct" and, therefore,

"[a]ll elements of doubt must be resolved in favor of the person against whom

the forfeiture is sought." Uricoli, 91 N.J. at 76. Nevertheless, the ALJ found

total forfeiture was appropriate, and the Board adopted the ALJ's decision.

      An administrative agency must provide an adequate explanation of its

decision. In re Issuance of Permit by Dep't of Envtl. Prot., 120 N.J. 164, 173

(1990). Here, the Board did so by adoption. N.J.S.A. 52:14B-10(c) (stating the

                                                                        A-4320-17T1
                                      13
ALJ's decision shall be deemed adopted as the final decision of the head of the

agency unless the agency chooses to reject or modify the decision within forty-

five days of receipt). Because the Board adopted the ALJ's findings of fact and

conclusions of law in their entirety, it was not statutorily required to amplify

those findings, which included an analysis of all the factors.

      Thompson was found not guilty of possession of child pornography by

reason of insanity; thus, the jury must have concluded Thompson actually

possessed the illicit materials. Otherwise, he would simply have been found not

guilty. Contrary to Thompson's contention, such conduct was not a single

isolated incident or act. Rather, it involved acquisition of thousands of images

of child pornography and the use of a pay service to hide his web browsing

activities. Thompson used a judiciary-issued laptop to acquire and store the

pornographic images of children and to arrange his encounter in Russia.

      Thompson further argues too much weight was applied to factor eight

since the sexual exploitation of a minor took place in a foreign country, his

position as a judge played no role in facilitating the crime, and the crime never

affected his ability to perform his job properly. We are unpersuaded by these

arguments.




                                                                          A-4320-17T1
                                       14
      Thompson's misconduct related to and touched upon his office because he

used a judiciary-supplied laptop to engage in his criminality. Thompson used

the laptop to orchestrate his fateful trip to Russia. He also stored images of child

pornography on the laptop. As noted by the DRB:

                   Law enforcement officers also obtained the
             consent of Thompson's employer to search the laptop
             computer that had been issued to him for use in his
             judicial chambers. Thompson used this computer to
             arrange . . . for his sexual escapade in Russia.
             Thompson also accessed thousands of pictures of child
             pornography from this laptop computer. In total,
             Thompson had in excess of 6,000 images of child
             pornography in his possession.

                    Analysis of the computer, as well as Thompson's
             credit card records, revealed that Thompson, while
             trolling the internet for child pornography, used certain
             websites and software designed to cover his tracks. For
             example, Thompson used a website called
             Anonymizer.com, which is a pay service that allows the
             user to visit other websites without revealing his
             internet protocol address. Thompson used this service
             over 6,000 times when visiting various internet news
             groups specializing in child pornography . . . .

             [Thompson, DRB 08-059 at *6-7.]

Put simply, the laptop was an essential instrument in his crimes. Knowing that

such use was illegal and violated workplace policy, he employed a service to

anonymize his internet browsing history over 6000 times. His criminality was

thus linked to his judicial position.

                                                                            A-4320-17T1
                                        15
      Thompson's misconduct was not confined to the last two years of his

judicial service. On the contrary, although the possession of child pornography

charge related to a single date, April 30, 2003, it is clear that Thompson began

accumulating images of child pornography "in the early 1970's." Id. at *10. He

confined his illegal conduct to acquiring and viewing images of child

pornography "until the late 1990's."       Ibid.   His conduct grew even worse

thereafter. While Thompson attributes his misconduct to a traumatic brain

injury, "respondent knew that what was he was doing was wrong. Although he

suffers from PTSD, he is not psychotic and, according to [his own expert,] Dr.

DiGiacomo, 'is aware of what he is doing.'"6 Id. at *16. This awareness is

exemplified by his sophisticated efforts to conceal his computer-based

misconduct.

      We are mindful that judges are held to a higher standard of conduct than

other citizens. Canon 1, Rule 1.1 of the Code of Judicial Conduct "compels a

judge to maintain high standards of conduct that preserve the integrity and

independence of the Judiciary." In re DiLeo, 216 N.J. 449, 471-72 (2014); see


6
   These conclusions were echoed by Dr. White, who opined Thompson's
"intellectual levels remained intact" and "[t]he frontal lobes of [his] brain,
responsible for judgment and decision-making, were functioning properly." Dr.
White also concluded Thompson showed no signs of psychopathology or
executive dysfunction.
                                                                        A-4320-17T1
                                      16
also In re Advisory Letter No. 3-11, 215 N.J. 495, 503 (2013) (discussing

generally the "necessarily high" standard of judicial conduct). Canon 1, Rule

1.2 requires judges to respect and comply with the law. "Canon 5 requires

judges to conduct extrajudicial activities in a manner to avoid . . . 'demeaning

the judicial office' . . . ." Advisory Letter No. 3-11, 215 N.J. at 504.

      Thompson argues the Board did not adequately consider and balance his

psychiatric conditions in determining that total forfeiture was appropriate. We

disagree. Thompson was convicted by a jury of the sexual exploitation of a

minor, a crime now punishable by a fifteen-year mandatory minimum sentence.

He served a ten-year prison term and three years of supervised release, paid a

$25,000 fine, and is registered as a sex offender as a result of his conduct. He

was also disbarred. We have little doubt he would have been removed from

judicial office had he not retired. Thompson seemingly recognized this in his

retirement letter.

      The criminal conviction, which was affirmed on appeal, conclusively

establishes his misconduct. Indeed, Thompson does not deny committing the

offense, which was meticulously planned and preserved on videotape for future

use. By any standard, his conduct was egregious. Thompson himself described

his conduct as deplorable.


                                                                           A-4320-17T1
                                       17
      Thompson's misconduct was by no means victimless.                   "[C]hild

pornography permanently records the victim's abuse, and its continued existence

causes the child victims of sexual abuse continuing harm by haunting those

children in future years." Child Pornography Prevention Act of 1996, Pub. L.

104-208, § 121, 110 Stat. 3009-26, reprinted in 18 U.S.C. § 2251 note at 611.

The actions undertaken to produce child pornography subject the children

involved to conduct no child should endure, and the impact on the victims is

profound and lasting. See United States v. Goff, 501 F.3d 250, 259 (3d Cir.

2007) ("Their injuries and the taking of their innocence are all too real. There

is nothing 'casual' or theoretical about the scars they will bear from being abused

. . . ."). The children are then revictimized by the distribution and possession of

the images depicting their abuse. See Ashcroft v. Free Speech Coal., 535 U.S.

234, 249 (2002) (noting "as a permanent record of a child's abuse, the continue d

circulation itself would harm the child"); see also Goff, 501 F.3d at 259 ("The

simple fact that the images have been disseminated perpetuates the abuse

initiated by the producer of the materials."). Furthermore, "the consumer of

child pornography 'creates a market' for the abuse by providing an economic

motive for creating and distributing the materials." Goff, 501 F.3d at 260.




                                                                           A-4320-17T1
                                       18
      Thompson's misconduct tarnished the image and integrity of the judiciary

of this State.    See DiLeo, 216 N.J. at 471 ("Consideration of the public's

perception of the judiciary . . . lies at the core of the Code of Judicial Conduct.").

The vileness, depravity, moral turpitude, and gravity of Thompson's misconduct

is obvious. The sustained nature of his misconduct over several decades renders

his entire judicial service dishonorable.

      Given our deferential standard of review and the nature of Thompson's

misconduct, we have little difficulty in upholding the Board's decision to totally

forfeit his judicial retirement benefits. The decision is supported by substantial

evidence in the record and is neither arbitrary, capricious, nor unreasonable.

      Thompson's remaining arguments lack sufficient merit to warrant

discussion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                              A-4320-17T1
                                        19
