Kanawha County 14-C-1749
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.
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.
and Procedural Background
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. 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
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
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.
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.
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
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.
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. ...