        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2018-SA-00977-COA

MORTISCHA HICKS                                                            APPELLANT

v.

PUBLIC EMPLOYEES’ RETIREMENT                                                 APPELLEE
SYSTEMS OF MISSISSIPPI

DATE OF JUDGMENT:           06/14/2018
TRIAL JUDGE:                HON. JOSEPH ANTHONY SCLAFANI
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
                            FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:     ORVIS A. SHIYOU JR.
ATTORNEY FOR APPELLEE:      OFFICE OF THE ATTORNEY GENERAL
                            BY: S. MARTIN MILLETTE
NATURE OF THE CASE:         CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                AFFIRMED - 10/01/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE BARNES, C.J., McDONALD AND C. WILSON, JJ.

       BARNES, C.J., FOR THE COURT:

¶1.    This case presents the question of whether the husband of a deceased Public

Employees’ Retirement System (PERS) member is entitled to receive lifetime spousal

survivor benefits notwithstanding the fact that he was convicted of aggravated driving under

the influence (DUI) in connection with her death. We find the decision of the PERS Board

of Trustees (Board) that the husband is entitled to such benefits is proper and affirm.

            STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    On May 24, 2014, Megan Hicks, a vested member of PERS, died as a result of a

vehicular accident where her husband, Jeremy Earnest, was driving while intoxicated and
she was a passenger. After being notified of Megan’s death, PERS staff researched Megan’s

account to determine if she was married or had dependent children. Megan had listed on a

beneficiary-designation form her husband, Jeremy, as a forty-percent beneficiary, and her

sister, Mortischa Hicks (Hicks), as a sixty-percent beneficiary, in the event a refund of

accumulated contributions and interest were payable upon Megan’s death. Megan and

Jeremy also had been married for more than one year prior to her death; therefore, PERS

determined that Jeremy was entitled to statutory survivor benefits regardless of Megan’s

beneficiary designations.

¶3.    In June 2014, PERS notified Jeremy of his right to lifetime spousal survivor benefits.

PERS received Jeremy’s pre-application for survivor benefits form. During the application

process, however, PERS was notified that Jeremy had been criminally charged in connection

with Megan’s death. PERS therefore placed a hold on the payment of survivor benefits until

the charges were resolved.

¶4.    In September 2014, Jeremy was indicted in Copiah County, Mississippi, for

“unlawfully and feloniously, while operating a motor vehicle in a negligent manner,

caus[ing] the death of Megan . . . at a time when . . . Jeremy . . . was operating his vehicle

under the influence of intoxicating liquor” in violation of Mississippi Code Annotated

section 63-11-30(1) and (5) (Rev. 2013).1 Jeremy pleaded guilty to the charge and was


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          In its final administrative determination letter, PERS notes that the crime, now
entitled “Aggravated DUI,” is also commonly referred to as “DUI manslaughter”; however,
the statute itself does not use the term “manslaughter.”

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sentenced to twenty-five years in the custody of the Mississippi Department of Corrections,

with fifteen years to serve and ten years suspended. PERS determined, however, that

Jeremy’s conviction did not preclude him from receiving surviving spouse benefits; thus,

in May 2015, he began receiving monthly survivor retirement benefits in the amount of

$388.56.2

¶5.     Two years later, in May 2017, PERS received a letter from an attorney representing

Hicks requesting “the requisite documents to file for death benefits provided under

[Megan’s] account with PERS.” Also requested was an inquiry into “the plan provision”

regarding Megan’s death and benefit payment to Jeremy after his conviction. Pat Robertson,

the executive director of PERS, responded by a letter dated June 2, 2017, informing Hicks’s

counsel that under Mississippi Code Annotated section 25-11-103(1)(g) and section 25-11-

114(2)(a) (Rev. 2018) that

        the surviving spouse of a vested member who dies before retirement shall
        receive a lifetime monthly benefit, regardless of the named beneficiary on file,
        if the surviving spouse and deceased member have been married for at least
        one year and the surviving spouse has not signed a written waiver of benefits.
        In other words, PERS only pays to the named . . . beneficiaries on file when
        there is no statutory beneficiary entitled to benefits.

(Emphasis added). The letter noted that an acknowledgment of this rule was in the

beneficiary designation form Megan signed. Robertson also added that PERS follows the

public policy established in Mississippi Code Annotated sections 91-1-25 and 91-5-33,


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            Jeremy also received a check for retroactive benefits from June 2014 through May
2015.

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“which states that any person who willfully causes or procures the death of another shall not

inherit from the person killed.” However, Robertson stated that because Jeremy was

convicted under the aggravated-DUI statute, which “is a crime of negligence and does not

require willful intent to cause death,” Jeremy would not be “automatically prohibited from

inheriting from [Megan] under Mississippi law.”

¶6.    In response, Hicks’s counsel sent a letter to PERS on August 11, 2017, stating plans

“to seek recovery of all funds held by Megan at the time of her death” in the Chancery Court

of Jefferson Davis County, Mississippi, where Megan’s estate action was pending.

Robertson sent a final administrative determination letter on August 25, 2017, to Hicks

based on her standing as a named beneficiary on Megan’s PERS account. The letter

explained the same information as the June 2, 2017 letter to Megan’s attorney, also noting

that “PERS accounts and benefits do not become part of a deceased member’s estate”;

therefore, the chancery court did not have jurisdiction over the matter. PERS concluded that

since there was no evidence that Jeremy willfully intended to cause Megan’s death, he was

not precluded by law from receiving spousal survival benefits. And further, Hicks was not

due a refund of accumulated contributions.

¶7.    Hicks filed a notice of appeal requesting a hearing before the Claims Committee of

the PERS Board. At the hearing, counsel for Hicks introduced an order issued by the

Jefferson Davis County Chancery Court establishing heirs, as Megan died intestate. In the

order, the chancellor found Jeremy was not entitled to receive any benefits from Megan’s


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estate because he was responsible for her death. Hicks’s counsel acknowledged that this

order was not binding on PERS, but he argued Jeremy should not be allowed to receive

survivor benefits because he “voluntarily” drove his vehicle at a high rate of speed while

intoxicated, which resulted in his wife’s death.

¶8.    The Claims Committee was not persuaded, however, and recommended to the PERS

Board to affirm the administrative decision of the PERS executive director denying Hicks’s

claim. Hicks then appealed to the Hinds County Circuit Court. In June 2018, that court

affirmed the PERS Board’s decision denying Hicks’s requests that Jeremy be disqualified

as a beneficiary of Megan’s PERS account, and that Hicks be named as a beneficiary and

paid a refund of accumulated contributions and interest. Hicks timely appealed to this Court.

                               STANDARD OF REVIEW

¶9.    Review of an administrative agency decision of the PERS Board is limited. Rule 5.03

of the Uniform Civil Rules of Circuit and County Court Practice provides that the reviewing

court will not disturb the agency’s decision unless the judgment was (1) unsupported by

substantial evidence; (2) arbitrary and capricious; (3) beyond the power of the agency; or (4)

violated the complainant’s statutory or constitutional right. Pub. Emps. Ret. Sys. v.

Dishmon, 797 So. 2d 888, 891 (¶8) (Miss. 2001). Further, “[t]here is a rebuttable

presumption in favor of a PERS ruling. Neither this Court nor the circuit court is entitled

to substitute its own judgment for that of PERS, and it is impermissible for a reviewing court

to re-weigh the facts of the case.” Id. at (¶9) (citation omitted). The focus for the court’s


                                              5
review is whether the agency’s decision is supported by substantial evidence or is arbitrary

and capricious. Id. Questions of law are reviewed de novo. Oktibbeha Cty. Hosp. v. Miss.

State Dept. of Health, 956 So. 2d 207, 208-09 (¶5) (Miss. 2007).

                                       ANALYSIS

¶10.   Hicks presents her argument as a conflict of statutes. PERS advocates application of

Mississippi Code Annotated section 25-11-117(1) (Rev. 2018), which provides for the

distribution of accumulated contributions upon the death of a member prior to retirement:

       In the event of death before retirement of any member whose spouse and/or
       children are not entitled to a retirement allowance, the accumulated
       contributions to the credit of the deceased member in the annuity savings
       account shall be paid to the designated beneficiary on file in writing in the
       office of the executive director of the board of trustees . . . .

Hicks, however, argues that Mississippi Code Annotated sections 91-1-25 and 91-5-33

(Rev. 2018), known as the “slayer statutes,” control. See Estate of Armstrong v. Armstrong,

170 So. 3d 510, 513 (¶10) (Miss. 2015). These two code sections prohibit inheritance by

a individual who “willfully” causes the death of another individual. Under the laws of

descent and distribution, section 91-1-25 provides that “[i]f any person wilfully cause or

procure the death of another in any way, he shall not inherit the property, real or personal,

of such other; but the same shall descend as if the person so causing or procuring the death

had predeceased the person whose death he perpetrated.” Likewise, if the decedent has a

will, section 91-5-33 provides the same prohibition. The plain language of sections 91-1-25

and 91-5-33 does not apply to PERS benefits because these benefits pass outside the


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decedent’s estate. However, for public policy reasons, the Mississippi Supreme Court has

applied the same statutory principles where the property at issue was life insurance proceeds

rather than an inheritance. See Gholson v. Smith, 210 Miss. 28, 30, 48 So. 2d 603, 604

(Miss. 1950) (In an interpleader action by an insurance company, the widow did not receive

the husband’s life insurance proceeds because she deliberately killed him.); see, e.g., Old

Line Life Ins. Co. v. Brooks, No. 3:05-cv-722-DPJ-JCS, 2007 WL 892448, at *2 (S.D. Miss.

Mar. 22, 2007) (In an interpleader action, the sons were listed as beneficiaries on their

father’s life insurance policy and were ineligible to collect proceeds because they murdered

their father.); Dill v. S. Farm Bureau Life Ins. Co., 797 So. 2d 858, 866 (¶43) (Miss. 2001)

(In an interpleader action, the husband was not entitled to wife’s life insurance proceeds

because he intentionally killed her.). We find that PERS correctly determined the same

principles would apply to PERS benefits for the strong public policy against allowing

someone to profit from involvement in the death of another.

¶11.   Under section 25-11-114(2)(a)(ii), when a vested PERS member who has been

married for at least one year dies prior to retirement and the surviving spouse has not

previously signed a written waiver of benefits, the surviving spouse shall receive a lifetime

monthly benefit regardless of the designated beneficiary on file with PERS. Accordingly,

even though Megan’s beneficiary designation form listed her husband as a forty-percent

beneficiary and Hicks as a sixty-percent beneficiary, by law PERS can only pay a refund of

accumulated contributions to the designated beneficiary when there is no spouse or


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dependent children entitled to the monthly benefits. PERS could only pay a refund of

contributions to Hicks as a named beneficiary if Jeremy was not entitled to statutory survivor

benefits. When Megan died, there was no waiver of spousal benefits on file with PERS.

Therefore, Jeremy, married to Megan for over one year, was entitled to lifetime spousal

benefits unless disqualified.

¶12.   A person may be disqualified from receiving benefits under the slayer statutes cited

earlier. However, as PERS points out, these statutes are “strictly construed and narrow in

purpose.” Estate of Armstrong, 170 So. 3d at 514 (¶16). Hicks argues that the slayer

statutes apply; thus, Jeremy should be disqualified from receiving Megan’s benefits because

he “willfully” caused her death when he “willfully” drove a vehicle that he knew, or should

have known, he was incapable of operating safely because he was intoxicated. Hicks claims

that Jeremy was indicted for a crime which included an element of “willfulness” and not a

crime of negligence; however, Jeremy was allegedly allowed to plead guilty to a lesser crime

based on negligence to avoid trial and to receive a lighter sentence.

¶13.   Hicks’s argument is off-base. While Jeremy’s guilty plea is not a part of the record,

his indictment and sentencing order are. Jeremy was not indicted for a different crime from

which he pleaded guilty; he was indicted “for the offense of vehicular homicide” under

Mississippi Code Annotated sections 63-11-30(1) and -30(5) for causing Megan’s death

while “operating a motor vehicle in a negligent manner.” (Emphasis added). This crime

carries a maximum sentence of twenty-five years. The sentencing order states Jeremy


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pleaded guilty to the charge of “DUI manslaughter” and sentenced him to twenty-five years

with fifteen years to serve. As stated earlier, “aggravated DUI” is commonly referred to as

“DUI manslaughter.” Further, this type of homicide is not a crime of willfulness but one of

negligence, as is apparent from the plain language of the statute.

¶14.   In Mississippi, there have been no appellate cases that specifically discuss whether

a person convicted under the DUI statute for killing an individual is prohibited from

inheriting from the deceased.       The PERS administrative decision letter, the Claims

Committee recommendation, and the circuit court’s decision all cite to Hood v.

Vandevender, 661 So. 2d 198 (Miss. 1995). In that case, the Mississippi Supreme Court

held that a conviction for manslaughter would not prevent the defendant from inheriting

from the decedent under sections 91-1-25 and 91-5-33 because such a conviction is “only

slight evidence of willfulness, and evidence only that a killing occurred.” Hood, 661 So. 2d

at 201. The court further noted that the burden of proving the applicability of the slayer

statutes is on the estate. Id. We cannot say PERS erred in relying on Hood to deny Hicks’s

claim.3 Under the proper legal standard, Jeremy did not willfully cause Megan’s death by

choosing to drive while intoxicated.

¶15.   Hicks also argues that, as a matter of public policy, Jeremy should not benefit

financially from causing the death of his wife, regardless of whether she was killed by a

willful or negligent action. Unfortunately, while Jeremy’s actions resulted in a senseless


       3
           Hicks argues that Hood is distinguishable but does not elaborate further.

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tragedy, neither PERS nor this Court has the authority to analyze the public policy of this

State; we must comply with the governing statutes when determining how survivor benefits

are paid. Under the current law, PERS cannot deny Jeremy statutory survivor benefits unless

sufficient evidence is presented that he willfully caused Megan’s death. Because the law

requires willful intent, and Hicks presented no evidence of such, we cannot say the Board

erred in denying Hicks’s claim.

¶16.   Accordingly, we affirm the Board’s decision.

¶17.   AFFIRMED.

     CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS,
TINDELL, McDONALD, McCARTY AND C. WILSON, JJ., CONCUR.
LAWRENCE, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN
OPINION, JOINED BY McDONALD AND McCARTY, JJ.

       LAWRENCE, J., SPECIALLY CONCURRING:

¶18.   As the law currently stands, Jeremy Earnest is entitled to his late wife’s PERS

benefits, regardless of the fact that he caused her death. Mississippi’s “slayer statute” only

prohibits a person from inheriting benefits or property of a person if the slayer “willfully”

caused that person’s death. See Miss. Code Ann. § 91-1-25(6) (Rev. 2018). While I agree

with the majority’s interpretation of the statute and our supreme court precedent when

applied to the facts of this case, I write separately to express my concerns with this outcome

under our current law.

¶19.   Driving under the influence and causing a death is considered a crime of violence

under Mississippi law. Miss. Code Ann. § 97-3-2 (Rev. 2014). The “willful” element

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required by Mississippi’s slayer statute is not included in Mississippi Code Annotated

section 63-11-30(5) (Rev. 2013), nor was it in the indictment in this case. In her appeal to

the trial court, Mortischa Hicks asserted that Jeremy’s actions “warrant a finding that he did

‘willfully’ cause the death of Mrs. Earnest in that he willfully ingested alcohol and drove a

vehicle at a time that he knew or should have known he was incapable of safely operating

that automobile.” This Court has held before, and juries are regularly instructed, that

“voluntary intoxication does not negate criminal responsibility.” Lawrence v. State, 3 So.

3d 754, 758 (¶20) (Miss. Ct. App. 2008) (citing McDaniel v. State, 356 So. 2d 1151, 1161

(Miss. 1978)). No one poured alcohol into Jeremy’s mouth. He voluntarily decided to drink

and drive. Black’s Law Dictionary defines “willful” as “[v]oluntary and intentional, but

not necessarily malicious.” Black’s Law Dictionary 1834 (10th ed. 2014) (emphasis added).

Because our law mandates that one who voluntary ingests alcohol is responsible for their

criminal actions, and Black’s Law Dictionary defines willful as voluntary, I agree with

Hicks’s logic. It would not be a stretch to hold that our law implicitly demands that when

a person willfully or voluntarily ingests alcohol and then negligently causes the death of

another, that under our slayer statute the person’s acts be construed as willful. However, that

is not the present state of our law.

¶20.   Mississippi’s slayer statute adds the specific element of willfulness. As the law

currently reads, even though it is plausible that Jeremy willfully chose to drink and drive,

he did not willfully cause Megan’s death in terms of the statute. As a result, Jeremy is able


                                              11
to recover lifetime spousal survivor benefits of $338.56 each month, instead of the victim’s

family. There can be no doubt that a person who drinks and drives endangers themselves,

any passengers in the car, and those on the road. Jeremy’s decision to willfully drink and

drive not only put himself in danger, but his act caused the death of his wife, Megan. But

for his choice, the car would not have crashed, and Megan would not have died. To be

clear, Jeremy’s ability to collect the benefits under this technicality allows him to benefit

from a death he caused and for which he is presently serving a prison sentence.

Unfortunately, instead of the decedent’s family (who were named as a sixty-percent

beneficiary originally) collecting the benefits, the man who caused her death by violating the

laws of this state will receive those benefits while he is in prison for causing her death. That

strikes me as wrong and law without common sense.

¶21.   Some states have prevented such an outrageous result by simply altering the statutory

language or having different language in their slayer statutes. In particular, Alaska’s statute

is instructive. Under Alaskan law, “an individual who feloniously kills the decedent forfeits

all benefits . . . .” Alaska Stat. Ann. § 13.12.803 (emphasis added). That statute

purposefully omits any language of willfulness, and encompasses both intentional and

unintentional acts. Furthermore, it only requires that the action be felonious and that the

felonious act cause a death. If Mississippi’s slayer statute had that language, then Jeremy

would not be able to profit from his acts in criminally causing his wife’s death.

¶22.   If Mississippi Code Annotated section 63-11-30(5), which governs the operation of


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a motor vehicle while under the influence of alcohol, had included the words “willful” or

“voluntary” impairment that negligently caused a death, the result in this case may have been

different. Or, if the slayer statute had eliminated the word willful and only required a

felonious killing, the result in this case may have been different. The legislature makes the

law, not this Court. This Court is duty bound to follow the law of this state as established

by the legislature. Therefore, I regrettably concur with the majority and find that,

unfortunately, Jeremy is entitled to Megan’s benefits under the present state of our law.

       McDONALD AND McCARTY, JJ., JOIN THIS OPINION.




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