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Thornsbury v. West Virginia Consolidated Public Retirement Board

Supreme Court of West Virginia

February 9, 2018

Michael Thornsbury, Respondent Below, Petitioner
v.
West Virginia Consolidated Public Retirement Board, Petitioner Below, Respondent and Dreama Thornsbury, Respondent Below, Petitioner
v.
West Virginia Consolidated Public Retirement Board, Petitioner Below, Respondent

          Kanawha County 14-C-1749

          MEMORANDUM DECISION

         In these consolidated appeals, Petitioner Michael Thornsbury, pro se, and Petitioner Dreama Thornsbury, by counsel Mark Hobbs, appeal the Circuit Court of Kanawha County's February 24, 2017, "Final Order Granting West Virginia Consolidated Public Retirement Board's Petition to Terminate Michael Thornsbury's Retirement Benefits." Respondent West Virginia Consolidated Public Retirement Board ("Board"), by counsel J. Jeaneen Legato, filed responses in support of the circuit court's order.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Factual and Procedural Background

         This case concerns the termination of Petitioner Michael Thornsbury's retirement benefits as a result of rendering "less than honorable service" according to West Virginia Code §§ 5-10A-1 through -10.[1] The Board petitioned the circuit court to terminate the taxpayer-funded portions of Mr. Thornsbury's pensions with the West Virginia Public Employee Retirement System and the West Virginia Judges' Retirement System as a result of Mr. Thornsbury's felony conviction in federal court. Mr. Thornsbury claimed that he was entitled to receive these monies despite his conviction. Additionally, Mr. Thornsbury's former wife, Petitioner Dreama Thornsbury, claimed entitlement to the marital portion of Mr. Thornsbury's retirement accounts according to two qualified domestic relations orders entered by the Circuit Court of Mingo County in connection with her divorce from Mr. Thornsbury. Ms. Thornsbury's claim regarding the pensions was entirely derivative of Mr. Thornsbury's claim as she was never a participant in either retirement system in her own right.

         The relevant facts are as follows. Mr. Thornsbury has 2.15 years of service in the West Virginia Public Retirement System and 16.5 years of service in the Judges' Retirement System. In September of 2013, the federal government filed an Information in the United States District Court for the Southern District of West Virginia alleging that in March of 2013, while serving as the sole circuit court judge in Mingo County, Mr. Thornsbury conspired with other local public officials to prevent an informant/criminal defendant from further communicating with the Federal Bureau of Investigation ("FBI") regarding possible criminal activity by the Mingo County Sheriff. Mr. Thornsbury agreed to impose a lighter sentence on the informant in return for the informant discharging his legal counsel, who had previously facilitated the informant's communication with the FBI, and retaining legal counsel chosen by Mr. Thornsbury. The informant accepted Mr. Thornsbury's offer, fired his counsel, and retained Mr. Thornsbury's chosen counsel.

         In this case, Mr. Thornsbury entered a plea agreement in October of 2013, in which he agreed to plead guilty to the felony offense of conspiracy against civil rights; resign from his office as a circuit court judge; and never seek nor serve in public office again. In June of 2014, the federal court adjudged Mr. Thornsbury guilty and sentenced him to fifty months in prison, three years of probation, and imposed a $6, 000 fine. Mr. Thornsbury has no pending appeals related to his conviction and has an expected release date of March 15, 2018, from a federal prison in Florida.

         The Board met in July of 2014, and decided to terminate Mr. Thornsbury's retirement benefits as a result of his conviction. Upon receipt of notice to such effect from the Board, Mr. Thornsbury exercised his right to demand that the Board seek a determination of his eligibility for pension benefits in the circuit court. Thereafter, on September 23, 2014, the Board filed a petition to terminate Mr. Thornsbury's retirement benefits in the Circuit Court of Kanawha County. Ms. Thornsbury was included as a respondent to the Board's petition. By order entered on February 24, 2017, the circuit court granted the Board's petition and terminated Mr. Thornsbury's membership in both his Public Employees' Retirement and Judges' Retirement plans. This appeal followed.

         Discussion

         On appeal, petitioners argue that the circuit court erred in granting respondent's petition to terminate Mr. Thornsbury's pension benefits because (1) Mr. Thornsbury's pension vested on January 10, 2013, prior to his criminal conduct or his guilty plea; (2) the applicable statutes are unconstitutional; and (3) the Board accepted petitioners' qualified domestic relation orders with full knowledge of Mr. Thornsbury's conviction. Ms. Thornsbury raises an additional argument that equity entitles her to her portion of Mr. Thornsbury's retirement accounts.[2]

         With respect to our standard of review for petitioners' arguments, we have held that "[t]his Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). We have further held that "'[i]nterpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.' Syllabus point 1, Appalachian Power Co. v. State Tax Department of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995)." Syl. Pt. 1, W.Va. Pub. Ret. Bd. v. Weaver, 222 W.Va. 668, 671 S.E.2d 673 (2008). Additionally,

[i]n considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.

Syl. Pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965). With these standards in mind, we turn to petitioners' arguments.

         Petitioners first contend the circuit court erred in terminating Mr. Thornsbury's pension benefits because his pension vested on January 10, 2013, prior to his felonious conduct or his guilty plea. Upon review of the applicable statute and our case law, we reject petitioners' argument. ...


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