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SJC-12069

  STATE BOARD OF RETIREMENT   vs.   THOMAS M. FINNERAN & others. 1



         Suffolk.     December 8, 2016. - April 5, 2017.

 Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, & Budd,
                               JJ. 2


Retirement. State Board of Retirement. Public Employment,
     Forfeiture of retirement benefits. Constitutional Law,
     Excessive fines clause. Practice, Civil, Action in nature
     of certiorari.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on December 4, 2015.

     The case was reported by Lenk, J.


     David R. Marks, Assistant Attorney General, for the
plaintiff.
     Nicholas Poser (Thomas R. Kiley also present) for Thomas M.
Finneran.




     1
       Justices of the Dorchester Division of the Boston
Municipal Court Department, as nominal parties.
     2
       Justice Botsford participated in the deliberation on this
case prior to her retirement.
                                                                    2


     LENK, J.   Former Speaker of the House Thomas Finneran

pleaded guilty in the United States District Court in 2007 to

one count of obstruction of justice in violation of 18 U.S.C.

§ 1503.   The obstruction of justice conviction related to false

testimony that he had provided in relation to a Federal court

action challenging the 2001 redistricting act, St. 2001, c. 125

(redistricting act).   Finneran had played a significant role in

the development of the redistricting act from the point of its

inception but denied under oath that he had played any part in

its development.   Indeed, he testified that he had not even seen

the plan before it was released to the full House of

Representatives.

     After his conviction, Finneran was informed by the State

Retirement Board (board) that his crime constitutes a "violation

of the laws applicable to his office or position," pursuant to

G. L. c. 32, § 15 (4), requiring the forfeiture of his pension.

Finneran appealed from the board's determination to the Boston

Municipal Court.   A Boston Municipal Court judge reversed,

discerning no direct link between Finneran's "conviction and his

position as a Member and/or Speaker of the House."   We reach the

opposite conclusion, and accordingly reverse the decision of the

Boston Municipal Court judge and affirm the conclusion of the

board.
                                                                       3


     1.    Background. 3    Finneran was first elected to the House of

Representatives in 1978, as the representative of the Twelfth

Suffolk District.     Thereafter, he was reelected every two years,

and concurrently served as Speaker of the House from 1996 until

his resignation in 2004.

     In 2001, Finneran played a key role in shepherding the

Commonwealth through the redistricting process pursuant to the

2000 decennial United States census.        The Legislature bore the

responsibility of revising the Commonwealth's legislative

districts to account for the change in population reflected in

the census.     Toward that end, the Legislature established a

joint committee (committee) comprised of members of the Senate

and House of Representatives to put together a redistricting

plan.     Finneran, as Speaker, appointed the House members of the

committee.     He also took part in the planning process and was

consulted in regard to "virtually all" of the difficult

decisions concerning the committee's redistricting plan.

     One week before the plan was released to the full House,

Finneran convened and attended a meeting concerning the

redistricting plan.        At that meeting, he reviewed the proposed

plan in detail and suggested several changes to it that


     3
       The facts, which the parties do not materially dispute,
are taken from the Boston Municipal Court judge's decision and
the administrative record, including the plea colloquy in the
Federal court.
                                                                     4


pertained to his own district, at least some of which became

part of the final redistricting plan.    In the days leading up to

the release of the plan, Finneran met with several of his fellow

House members and explained to them how it would affect their

districts.   Shortly after the joint committee released the

redistricting plan to the full House, then Acting Governor Jane

Swift signed the redistricting act, enacting the plan into law

on November 8, 2001. 4   The redistricting act, among other things,

increased the proportion of eligible white voters in Finneran's

House district.

     In June, 2002, a group of African-American and Latino

voters filed a lawsuit in the United States District Court for

the District of Massachusetts against Finneran, then Secretary

of the Commonwealth William Galvin, and Acting Governor Swift, 5

challenging the redistricting act as it applied to House

districts in the Boston area.    They contended that the House

districts were redrawn with the purpose of limiting the voting

power of African-American and Latino voters, in violation of the

equal protection clause of the Fourteenth and Fifteenth

Amendments to the United States Constitution, and that the

redistricting act had a discriminatory effect against such

     4
       The plan did not change significantly between the time it
was released to the full House and when it was signed into law.
     5
       The plaintiffs sued all of the defendants in their
official capacities.
                                                                     5


voters in violation of the Voting Rights Act, 42 U.S.C.

§ 1973(b).   In particular, they argued that Finneran's Twelfth

Suffolk District was redrawn to decrease the number of minority

voters in the district and "super-pack" the neighboring Sixth

Suffolk District with African-American, Latino, and other

minority voters.    In May, 2003, the plaintiffs filed an amended

complaint naming only Secretary Galvin as a defendant.    The case

was tried before a three-judge panel appointed by the Chief

Judge of the United States Court of Appeals for the First

Circuit.

     Finneran was deposed during the course of the lawsuit, and

testified voluntarily on behalf of the defense in

November, 2003.    The plaintiffs cross-examined Finneran on,

among other things, the role he played in relation to the

formation of the redistricting act and, in particular, any

effort he had undertaken or role he had had in facilitating the

changes made to his House district.    In his testimony, Finneran

conceded that he had engaged in communications with the House

members on the redistricting committee, but denied any

substantive knowledge of the redistricting plan prior to its

publication to the full House.    When asked whether he had

reviewed "any of the redistricting plans as the process

proceeded," Finneran responded, "Not as the process proceeded.

No sir."   Finneran subsequently falsely testified that he first
                                                                       6


saw the redistricting plan after it was released to the full

House.

     In February, 2004, the Federal District Court panel ruled

for the plaintiffs on the ground that the redistricting act had

resulted in a discriminatory impact on African-American voters,

in violation of the Voting Rights Act.    Black Political Task

Force v. Galvin, 300 F. Supp. 2d 291, 294 (D. Mass. 2004). 6     The

panel also stated in a footnote that "[a]lthough Speaker

Finneran denied any involvement in the redistricting process,

the circumstantial evidence strongly suggests the opposite

conclusion."   Id. at 295 n.3.   One year later, in June, 2005, a

Federal grand jury indicted Finneran on three counts of perjury

and one count of obstruction of justice in relation to his false

deposition testimony. 7   On January 5, 2007, Finneran pleaded


     6
       As a result of this conclusion, the court did not reach
the plaintiffs' constitutional arguments. Black Political Task
Force v. Galvin, 300 F. Supp. 2d 291, 294 (D. Mass. 2004).
     7
       The charge of obstruction of justice alleged that Finneran
had provided "misleading and false statements" in his testimony
concerning

     "(a) whether [he] had reviewed and seen a redistricting
     plan before the [c]ommittee plan was filed with the Clerk
     of the House of Representatives . . . ; (b) when [Finneran]
     first had information about the [c]ommittee's proposed
     changes to the [Twelfth] Suffolk District . . . ;
     (c) whether [Finneran] spoke with [the committee chairman]
     about any matters relating to the configuration of the
     [Twelfth] Suffolk District . . . ; (d) whether [Finneran]
     had knowledge of the scope of the work performed by
     [attorney] Lawrence DiCara in the crafting of the
                                                                   7


guilty to obstruction of justice, in violation of 18 U.S.C. §

1503, and received a sentence of eighteen months of probation

and a $25,000 fine. 8

     In January, 2007, the board ceased payments of Finneran's

pension on the ground of his conviction, pursuant to G. L.

c. 32, § 15 (4). 9   Following a hearing in April, 2012, the

hearing officer concluded that Finneran's pension is forfeit

under G. L. c. 32, § 15 (4), because he had "been convicted of a



     [c]ommittee plan . . . ; (e) whether [Finneran] had
     information within his custody and control regarding the
     racial characteristics of the precincts he lost in
     redistricting and the precincts he gained in redistricting,
     other than that to which he testified in his deposition
     . . . ; (f) the extent of [Finneran's] knowledge, at the
     time of his deposition, regarding what neighborhoods were
     removed from the [Twelfth] Suffolk District during
     redistricting, [and] the areas that were added to the
     [Twelfth] Suffolk District during redistricting . . . ; and
     (g) whether [Finneran] had within his custody and control a
     calendar which recorded campaign activities or events,
     including fundraisers, held by or on his behalf . . . ."
     8
       The three perjury charges were dismissed as part of
Finneran's plea bargain.
     9
         General Laws c. 32, § 15 (4), provides:

          "In no event shall any member after final conviction
     of a criminal offense involving violation of the laws
     applicable to his office or position, be entitled to
     receive a retirement allowance under the provisions of [§§
     1 to 28], inclusive, nor shall any beneficiary be entitled
     to receive any benefits under such provisions on account of
     such member. The said member or his beneficiary shall
     receive, unless otherwise prohibited by law, a return of
     his accumulated total deductions; provided, however, that
     the rate of regular interest for the purpose of calculating
     accumulated total deductions shall be zero."
                                                                   8


criminal offense involving violation of the laws applicable to

his office or position."   The hearing officer's conclusion

rested on three primary grounds:   (1) Finneran had testified in

his official capacity; (2) the "subject matter of his testimony

was . . . directly tied to his official duties;" and

(3) "Finneran’s duties as a legislator and the mandate of his

oath [to uphold the Constitution of the United States and the

Constitution of the Commonwealth] . . . gave him a heightened

obligation to be forthcoming with the Court" given that the case

concerned the right to vote.   The board subsequently voted to

accept the hearing officer's decision.

     Finneran appealed to the Boston Municipal Court under G. L.

c. 32, § 16 (3).   A Boston Municipal Court judge reversed the

board's decision, concluding that Finneran's conviction does not

bear "a direct factual link to his position as a House Member

and/or Speaker" and that "there is no substantial evidence to

support the [b]oard's conclusion that Finneran's conviction

violated a core function of his position as a House Member

and/or Speaker because there is no evidence in the record of any

code, rule or law applicable to Finneran's public position that

connects his conviction with his office."   The board filed a

complaint in the nature of certiorari in the county court,

pursuant to G. L. c. 249, § 4, asserting that the Boston

Municipal Court judge had committed an error of law in ruling
                                                                    9


that there is no "direct link between the criminal offense

Finneran committed . . . and his official duties as a Member and

Speaker of the Massachusetts House of Representatives."     A

single justice reserved and reported the matter to the full

court.

     2.   Discussion.   The primary question before us is whether

Finneran's pension is subject to forfeiture under G. L. c. 32,

§ 15 (4).   Finneran also contends that, even if we were to

determine that forfeiture is appropriate under the statute, it

nonetheless would constitute an excessive fine in violation of

the Eighth Amendment to the United States Constitution.     We

consider each issue in turn.

     a.   Standard of review.   General Laws c. 249, § 4,

"provides for limited judicial review in the nature of

certiorari to correct errors of law in administrative

proceedings where judicial review is otherwise

unavailable."   State Bd. of Retirement v. Bulger, 446 Mass. 169,

173 (2006) (Bulger).    We may "correct only a substantial error

of law, evidenced by the record, which adversely affects a

material right of the plaintiff . . . [and] may rectify only

those errors of law which have resulted in manifest injustice to

the plaintiff or which have adversely affected the real

interests of the general public."    Garney v. Massachusetts

Teachers' Retirement Sys., 469 Mass. 384, 388 (2014),
                                                                  10


quoting Massachusetts Bay Transp. Auth. v. Auditor of the

Commonwealth, 430 Mass. 783, 790 (2000).

     b.   Forfeiture pursuant to G. L. c. 32, § 15 (4).    The

gravamen of the board's argument is that Finneran's conviction

of obstruction of justice concerns a "violation of the laws

applicable to his office or position" under G. L. c. 32,

§ 15 (4), and that his pension is thereby forfeit.   General Laws

c. 32, § 15 (4), provides that "[i]n no event shall any member

[of the State employees’ retirement system] after final

conviction of a criminal offense involving violation of the laws

applicable to his office or position, be entitled to receive a

retirement allowance."

     Our review of G. L. c. 32, § 15 (4), "is guided by the

familiar principle that 'a statute must be interpreted according

to the intent of the Legislature ascertained from all its words

construed by the ordinary and approved usage of the language,

considered in connection with the cause of its enactment, the

mischief or imperfection to be remedied and the main object to

be accomplished, to the end that the purpose of its framers may

be effectuated.'"   Retirement Bd. of Somerville v. Buonomo, 467

Mass. 662, 668 (2014) (Buonomo), quoting Hanlon v. Rollins, 286

Mass. 444, 447 (1934).   Section 15 (4) "is considered to be

penal" in nature, and "its language must be construed narrowly,
                                                                     11


not stretched to accomplish an unexpressed result."     See Bulger,

446 Mass. at 174-175.

     Section 15 (4) was enacted in response to this court's

decision in Collatos v. Boston Retirement Bd., 396 Mass. 684

(1986), and was adopted to "broaden the range of crimes that

would lead to pension forfeiture."    See Gaffney v. Contributory

Retirement Appeal Bd., 423 Mass. 1, 3 (1996).     In that case, we

observed that § 15 (4) was not meant to "operate only in cases

of violations of highly specialized crimes addressing official

actions," nor to facilitate forfeiture "as a sequelae of any and

all criminal convictions."   Id. at 4-5.   Rather, "[l]ooking to

the facts of each case for a direct link between the criminal

offense and the member's office or position best effectuates the

legislative intent of § 15 (4)."     Id. at 5.   "This 'direct link'

requirement 'does not mean that the crime itself must reference

public employment or the employee's particular position or

responsibilities,' . . . or that the crime necessarily must have

been committed at or during work."    See Garney, 469 Mass. at

389, quoting Maher v. Justices of the Quincy Div. of the Dist.

Court Dep't, 67 Mass. App. Ct. 612, 616 (2006).     Rather, the

"substantive touchstone intended by the General Court is

criminal activity connected with the office or

position."   Gaffney, 423 Mass. at 4.
                                                                  12


     The "direct link" standard discussed in Gaffney blossomed

into two separate lines of cases concerning when forfeiture

under § 15 (4) would be appropriate.   What has emerged are two

recognized types of "direct links" between a public employee's

position and the crime committed:   factual links and legal

links.

     i.   Factual links.   In cases involving factual links, a

public employee's pension is subject to forfeiture under

§ 15 (4) only where there is a direct factual connection between

the public employee's crime and position.   See Gaffney, 423

Mass. at 4-5 (superintendent of municipal water and sewer

department who stole money from town was subject to pension

forfeiture); Durkin v. Boston Retirement Bd., 83 Mass. App. Ct.

116, 116-117, 119 (2013) (police officer who used department-

issued firearm to shoot fellow officer while off duty was

subject to pension forfeiture); Maher, 67 Mass. App. Ct. at 613,

616-617 (city employee who broke into city hall and stole

documents from his personnel file was subject to pension

forfeiture).   Contrast Garney, 469 Mass. at 385-386, 389-391 (no

forfeiture where teacher purchased and stored child pornography

on home computer because no connection to either his students or

school property); Retirement Bd. of Maynard v. Tyler, 83 Mass.

App. Ct. 109, 109, 112-113 (2013) (no forfeiture where fire

fighter sexually abused children because acts occurred off duty
                                                                   13


outside of fire house and fire fighter did not use "his

position, uniform, or equipment for the purposes of his indecent

acts"); Herrick v. Essex Regional Retirement Bd., 77 Mass. App.

Ct. 645, 646-647, 654-655 (2010) (no forfeiture where housing

authority custodian committed indecent assault and battery on

daughter because offense not committed on housing authority

property nor against any residents there, and did not bear other

connection to custodian's position).

     ii.   Legal links.   The other line of cases, involving

direct legal links, mandates forfeiture under § 15 (4) when a

public employee commits a crime directly implicating a statute

that is specifically applicable to the employee's position.

See Buonomo, 467 Mass. at 664-666, 670-671 (pension forfeiture

where register of probate embezzled funds in violation of Code

of Professional Responsibility for Clerks of Courts); Bulger,

446 Mass. at 177-180 (same with respect to clerk-magistrate who

committed perjury and obstruction of justice).   Contrast Garney,

469 Mass. at 393 ("Criminal conduct that is merely inconsistent

with a concept of special public trust placed in the position or

defiant of a general professional norm applicable to the

position, but not violative of a fundamental precept of the

position embodied in a law applicable to it . . . is

insufficient to justify forfeiture under G. L. c. 32,

§ 15 [4]").   The requisite direct legal link is shown where the
                                                                     14


crime committed is "contrary to a central function of the

position as articulated in applicable laws."     Id. at 391.

     iii.     Analysis.   Finneran's conduct falls squarely within

the first category, requiring forfeiture where there is a direct

factual link between the public employee's position and the

offense. 10   Finneran's false testimony concerning his knowledge

of and participation in the redistricting planning process is in

at least two respects directly linked as a factual matter to his

position as Speaker of the House.

     First and foremost, Finneran's false testimony directly

concerns and relates to his work on the redistricting plan as

Speaker of the House.     Unlike those cited cases where a public

employee's crime bore no relationship to his office or position,

see, e.g., Garney, 469 Mass. at 389, Finneran's crime directly

concerns actions that he had carried out when he served as

Speaker, in his role as Speaker.     He worked on the redistricting

plan in his capacity as Speaker and later testified falsely

about it.     On its face, this connection is enough to create a




     10
       Because we conclude that Finneran's conviction bears a
direct factual link to his position as Speaker of the House, we
do not address the question whether there is a direct legal link
between the offense and his position.
                                                                    15


"direct link between the criminal offense and [Finneran's] . . .
             11
position."        See Gaffney, 423 Mass. at 5.

     Another factual link between Finneran's crime and his

position as Speaker of the House is his admitted motivation for

its commission.     It had been alleged that the plan was adopted

in order to dilute minority representation in a number of House

districts, including Finneran's own district. 12   By his own

account, Finneran provided his false testimony to vindicate his

conduct as Speaker of the House regarding the redistricting

plan.     This further underscores the factual connection between

Finneran's false testimony and his work on the redistricting

plan as Speaker of the House.

     Finneran contends that forfeiture is inappropriate because

his offense does not fall within the scope of his duties as


     11
        It is irrelevant whether Finneran's work on the
redistricting process was a necessary part of his duties as
Speaker of the House. That he in fact played an integral part
in the redistricting process through his role as Speaker is what
creates the direct link to his false testimony.
     12
        During his plea colloquy, Finneran stated:

          "The accusations contained in the civil suit, your
     Honor, I found very, very troubling. For [twenty-six]
     years I had represented a district that was overwhelmingly
     African-American, and I took great pride in my service of
     this district. The accusations spoke to -- the plaintiff's
     civil suit spoke and alleged a deliberate racial
     manipulation in order to depress or suppress legitimate
     efforts at minority representation. I was offended by the
     accusation. I was angered by it, and I think, quite
     frankly, your Honor, it has led to this entire series of
     events which brings us here today."
                                                                  16


Speaker of the House.   This argument is unavailing.   While

Finneran's offense itself does not directly implicate his duties

as Speaker of the House, 13 it is nonetheless inextricably

intertwined with his position.   Simply put, it is only because

he had been Speaker of the House at the relevant time that he

was in a position to testify as to the genesis of the

redistricting plan and to do so falsely.    This connection is

enough to warrant forfeiture under § 15 (4).    See, e.g., Maher,

67 Mass. App. Ct. at 616-617 (forfeiture proper where public

employee broke into city hall and stole his personnel records).

Given this, Finneran's conviction of obstruction of justice is a

"violation of the laws applicable to his office or position,"

pursuant to § 15 (4), and accordingly requires the statutory

forfeiture of his pension.

     c.   Eighth Amendment claim.   Finneran also contends that

should we conclude, as we have, that his pension is forfeit

pursuant to § 15 (4), such a penalty would be an excessive fine

in violation of the Eighth Amendment. 14   He relies in this regard


     13
       Nothing in the record suggests that Finneran testified in
his official capacity as Speaker of the House or that he was in
any way obligated to testify pursuant to his duties as the
Speaker of the House.
     14
       The Eighth Amendment to the United States Constitution
provides: "Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted."
The Eighth Amendment is applicable to the States through the due
process clause of the Fourteenth Amendment to the United States
                                                                      17


upon our recent decision in Public Employee Retirement Admin.

Comm'n v. Bettencourt, 474 Mass. 60 (2016) (Bettencourt).

There, we determined that the forfeiture of a police officer's

pension, worth at least $659,000, which was due to an offense

for which he was given a $10,500 fine, without probation or

prison time, violated the Eighth Amendment.     Id. at 71-75.   Not

having raised this argument below, Finneran is precluded from

raising the issue on appeal.   See Commonwealth v. Rivera, 429

Mass. 620, 623 (1999).   Nonetheless, even if Finneran had

preserved the issue, the result would be the same.

     "The touchstone of the constitutional inquiry under the

Excessive Fines Clause is the principle of proportionality:     The

amount of the forfeiture must bear some relationship to the

gravity of the offense that it is designed to

punish."   Bettencourt, 474 Mass. at 72, quoting United States

v. Bajakajian, 524 U.S. 321, 334 (1998).   In applying this

standard, we first consider the amount of the

forfeiture.   Bettencourt, supra.   We then "gauge the degree of

[Finneran's] culpability and, in that regard, . . . [1] consider

the nature and circumstances of his offenses, [2] whether they

were related to any other illegal activities, [3] the aggregate




Constitution. See Cooper Indus., Inc. v. Leatherman Tool Group,
Inc., 532 U.S. 424, 433-434 (2001).
                                                                    18


maximum sentence that could have been imposed, and [4] the harm

resulting from them."     Id., citing Bajakajian, supra at 337-339.

      In considering the amount of the forfeiture, Finneran

relies on the Public Employee Retirement Administration

Commission's determination that the present value of his "future

benefits as of his retirement date was approximately $433,400." 15

We apply to that figure the four-factor standard from Bajakajian

for gauging proportionality under the Eighth Amendment.     As to

the first and second factors, Finneran was convicted of a

felony, viz., obstruction of justice, his crime consisting of

false testimony as to his involvement in a redistricting process

that was later found to be in violation of the Voting Rights

Act. 16    With regard to the third factor, the maximum penalty for

Finneran's crime was "a period of imprisonment of ten years, a

$250,000 fine, a period of three years of supervised release, a

five year period of probation, and a $100 special assessment."

Fourth, given that the plaintiffs prevailed in the judicial

proceeding, little apparent harm flowed from Finneran's crime.


      15
        The board disputes this amount and points out that
Finneran's failure to raise this argument below means that the
value of his pension has never been presented to a judicial fact
finder.
      16
       We note that the United States District Court panel held
that the redistricting plan had a discriminatory impact on
African-American voters, but did not conclude that the plan was
enacted with discriminatory intent. Black Political Task Force,
300 F. Supp. 2d at 315-316.
                                                                     19


     The gravity of Finneran's offense and the maximum potential

penalty for it distinguish his crime from the circumstances

of Bettencourt.   That case involved a forfeiture of at least

$659,000 in pension benefits, plus health benefits, following a

series of misdemeanor offenses, 17 which did not relate to any

other illegality, and carried an aggregate maximum penalty of

630 days imprisonment and a fine of $21,000.    See Bettencourt

474 Mass. at 72-74.     In stark contrast, Finneran's offense is a

felony connected to a redistricting plan which violated Federal

law, carrying a maximum penalty that includes ten years'

imprisonment and a $250,000 fine.    The forfeiture of $433,400 in

pension payments pursuant to § 15 (4) therefore does not qualify

as an excessive fine in violation of the Eighth Amendment.

     3.   Conclusion.    The case is remanded to the county court

where an order shall enter reversing the judgment of the Boston

Municipal Court, affirming the decision of the board, and

remanding to the Boston Municipal Court for further proceedings

consistent with this opinion.

                                      So ordered.




     17
       The case involved a police officer who unlawfully
accessed the civil service promotional examination scores of
twenty-one of his fellow officers in violation of G. L. c. 266,
§ 120F. See Public Employee Retirement Admin. Comm'n v.
Bettencourt, 474 Mass. 60, 61-62 (2016).
