{ "id": 11889311, "name": "CHARLES B. MIRACLE, Plaintiff v. NORTH CAROLINA LOCAL GOVERNMENT EMPLOYEES RETIREMENT SYSTEM, a corporation; BOARD OF TRUSTEES OF THE NORTH CAROLINA LOCAL GOVERNMENT EMPLOYEES RETIREMENT SYSTEM, a body politic and corporate; E.T. BARNES, Director of the Retirement System Division and Deputy Treasurer for the State of North Carolina (in his official capacity); HARLAN E. BOYLES, Treasurer of the State of North Carolina and Chairman of the Board of Trustees of the North Carolina Local Government Employees Retirement System (in his official capacity); and THE STATE OF NORTH CAROLINA, Defendants", "name_abbreviation": "Miracle v. North Carolina Local Government Employees Retirement System", "decision_date": "1996-11-05", "docket_number": "No. COA94-1241", "first_page": "285", "last_page": "296", "citations": [ { "type": "official", "cite": "124 N.C. App. 285" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "4 ALR3d 361", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "69 L. Ed. 2d 1044", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "107 L. Ed. 2d 1105", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "76 L. Ed. 2d 852", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "35 ALR Fed. 15", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "7 ALR2d 692", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "363 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1987, "pin_cites": [ { "page": "94" }, { "page": "94" }, { "page": "95" }, { "page": "94" }, { "page": "94" }, { "page": "95-95", "parenthetical": "\"reasonable and necessary\" issue not \"properly resolved in the court below,\" defendants not having met burden \"to show that there are no genuine issues as to any material fact\"" }, { "page": "94-95" }, { "page": "94-95" } ], "opinion_index": 0 }, { "cite": "285 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "system estopped from denying benefits where plaintiff relied on representation in publication of system that employer would forward his benefits application to system, but employer failed to do so" } ], "opinion_index": 0 }, { "cite": "304 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566170, 8566034, 8566131, 8566072, 8566202 ], "year": 1981, "pin_cites": [ { "parenthetical": "system estopped from denying benefits where plaintiff relied on representation in publication of system that employer would forward his benefits application to system, but employer failed to do so" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0194-04", "/nc/304/0194-01", "/nc/304/0194-03", "/nc/304/0194-02", "/nc/304/0194-05" ] }, { "cite": "279 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "system estopped from denying benefits where plaintiff relied on representation in publication of system that employer would forward his benefits application to system, but employer failed to do so" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 78", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519605 ], "year": 1981, "pin_cites": [ { "parenthetical": "system estopped from denying benefits where plaintiff relied on representation in publication of system that employer would forward his benefits application to system, but employer failed to do so" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0078-01" ] }, { "cite": "209 S.E.2d 795", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "798", "parenthetical": "movant meets summary judgment burden by showing essential element of opposing party's claim nonexistent" } ], "opinion_index": 0 }, { "cite": "286 N.C. 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563251 ], "year": 1974, "pin_cites": [ { "page": "29", "parenthetical": "movant meets summary judgment burden by showing essential element of opposing party's claim nonexistent" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0024-01" ] }, { "cite": "77 S.E.2d 669", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "672" } ], "opinion_index": 0 }, { "cite": "238 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602050 ], "year": 1953, "pin_cites": [ { "page": "177-78" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0174-01" ] }, { "cite": "267 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "353", "parenthetical": "quoting Hawkins v. Finance Corp., 238 N.C. 174, 177-78, 77 S.E.2d 669, 672 (1953)" }, { "page": "353" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 271", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549187 ], "year": 1980, "pin_cites": [ { "page": "277-78", "parenthetical": "quoting Hawkins v. Finance Corp., 238 N.C. 174, 177-78, 77 S.E.2d 669, 672 (1953)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0271-01" ] }, { "cite": "193 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "735" } ], "opinion_index": 0 }, { "cite": "282 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566925 ], "year": 1973, "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0542-01" ] }, { "cite": "329 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "650", "parenthetical": "quoting In re Hospital, 282 N.C. 542, 550, 193 S.E.2d 729, 735 (1973)" } ], "opinion_index": 0 }, { "cite": "313 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718547 ], "year": 1985, "pin_cites": [ { "page": "462", "parenthetical": "quoting In re Hospital, 282 N.C. 542, 550, 193 S.E.2d 729, 735 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0460-01" ] }, { "cite": "102 L. Ed. 2d 48", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "pin_cites": [ { "parenthetical": "while no due process violation found, court emphasized that \"the legislature did not undertake to modify the retirement benefits of those who had already left state service by [effective date of the statute]\"" } ], "opinion_index": 0 }, { "cite": "488 U.S. 824", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1494948, 1495140, 1493446, 1493287, 1494185, 1493676, 1494351, 1494257, 1494802, 1495573, 1495450, 1495292, 1494109 ], "year": 1988, "pin_cites": [ { "parenthetical": "while no due process violation found, court emphasized that \"the legislature did not undertake to modify the retirement benefits of those who had already left state service by [effective date of the statute]\"" } ], "opinion_index": 0, "case_paths": [ "/us/488/0824-13", "/us/488/0824-01", "/us/488/0824-09", "/us/488/0824-02", "/us/488/0824-06", "/us/488/0824-08", "/us/488/0824-04", "/us/488/0824-12", "/us/488/0824-05", "/us/488/0824-10", "/us/488/0824-03", "/us/488/0824-11", "/us/488/0824-07" ] }, { "cite": "842 F.2d 598", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10544787 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/f2d/842/0598-01" ] }, { "cite": "662 F. Supp. 1311", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7400267 ], "year": 1987, "pin_cites": [ { "page": "1313" } ], "opinion_index": 0, "case_paths": [ "/f-supp/662/1311-01" ] }, { "cite": "428 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6175785 ], "weight": 5, "year": 1976, "pin_cites": [ { "page": "15-17" }, { "page": "766-67" }, { "page": "15" }, { "page": "766" } ], "opinion_index": 0, "case_paths": [ "/us/428/0001-01" ] }, { "cite": "467 U.S. 717", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6206243 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "733" }, { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/us/467/0717-01" ] }, { "cite": "511 U.S. 244", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147362 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "268-69", "parenthetical": "citation omitted" }, { "page": "254", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/511/0244-01" ] }, { "cite": "488 A.2d 803", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1985, "pin_cites": [ { "page": "810", "parenthetical": "\"the due process approach protects public employees from legislative confiscation of the retirement fund and arbitrary forfeiture of pension benefits\"" } ], "opinion_index": 0 }, { "cite": "251 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "890", "parenthetical": "\"Statements of fact made in briefs . . . may be assumed as true as against the party asserting them.\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 715", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554597 ], "year": 1979, "pin_cites": [ { "page": "717", "parenthetical": "\"Statements of fact made in briefs . . . may be assumed as true as against the party asserting them.\" (emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0715-01" ] }, { "cite": "269 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 297", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550270 ], "year": 1980, "pin_cites": [ { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0297-01" ] }, { "cite": "279 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "870" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519378 ], "year": 1981, "pin_cites": [ { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0033-01" ] }, { "cite": "133 L. Ed. 2d 124", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "48 F.3d 800", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7410794 ], "opinion_index": 0, "case_paths": [ "/f3d/48/0800-01" ] }, { "cite": "356 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4747719, 4742153, 4742795, 4743089, 4748953 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0672-02", "/nc/319/0672-04", "/nc/319/0672-05", "/nc/319/0672-01", "/nc/319/0672-03" ] }, { "cite": "352 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "884" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 443", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168671 ], "year": 1987, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0443-01" ] }, { "cite": "468 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798788, 798828, 798798, 798776, 798811 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0122-03", "/nc/343/0122-01", "/nc/343/0122-05", "/nc/343/0122-04", "/nc/343/0122-02" ] }, { "cite": "466 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "307" }, { "page": "307" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917593 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "419-20" }, { "page": "419-20" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0414-01" ] }, { "cite": "372 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562515 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0362-01" ] }, { "cite": "88 N.C. App. 218", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358019 ], "weight": 8, "year": 1987, "pin_cites": [ { "page": "225" }, { "page": "224" }, { "page": "226" }, { "page": "225" }, { "page": "225" }, { "page": "225-26" }, { "page": "225-26" }, { "page": "225-26" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0218-01" ] }, { "cite": "436 S.E.2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531975 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0158-01" ] }, { "cite": "424 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "427" }, { "page": "427" }, { "page": "426" }, { "page": "427" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 357", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524345 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "371" }, { "page": "371" }, { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0357-01" ] }, { "cite": "53 L. Ed. 2d 1073", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1977, "opinion_index": 0 }, { "cite": "431 U.S. 975", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1810, 1795 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/431/0975-01", "/us/431/0975-02" ] }, { "cite": "431 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1636 ], "weight": 5, "year": 1977, "pin_cites": [ { "page": "112" }, { "page": "112" }, { "page": "112", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/431/0001-01" ] }, { "cite": "4 ALR3d 361", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": 0 } ], "analysis": { "cardinality": 1143, "char_count": 26223, "ocr_confidence": 0.73, "pagerank": { "raw": 2.0749924238754402e-07, "percentile": 0.758274324101521 }, "sha256": "decb422c2df5ef4efb00a9adb582ca6b374d5d413bf3ab2346bb64739ccdf997", "simhash": "1:6b89f37ae7a9565f", "word_count": 4210 }, "last_updated": "2023-07-14T17:03:33.335576+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and LEWIS concur." ], "parties": [ "CHARLES B. MIRACLE, Plaintiff v. NORTH CAROLINA LOCAL GOVERNMENT EMPLOYEES RETIREMENT SYSTEM, a corporation; BOARD OF TRUSTEES OF THE NORTH CAROLINA LOCAL GOVERNMENT EMPLOYEES RETIREMENT SYSTEM, a body politic and corporate; E.T. BARNES, Director of the Retirement System Division and Deputy Treasurer for the State of North Carolina (in his official capacity); HARLAN E. BOYLES, Treasurer of the State of North Carolina and Chairman of the Board of Trustees of the North Carolina Local Government Employees Retirement System (in his official capacity); and THE STATE OF NORTH CAROLINA, Defendants" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiff appeals summary judgment entered in favor of defendants on plaintiff\u2019s constitutional claims and claim for equitable estop-pel regarding termination of his retirement benefits. We affirm the trial court in part and reverse it in part.\nPertinent procedural and background information is as follows: Plaintiff began employment with Onslow County as a law enforcement officer in 1959. As such, he became a member of the Law Enforcement Officers\u2019 Benefit and Retirement Fund, later designated as the Law Enforcement Officers\u2019 Retirement System (LEO). See 1983 N.C. Sess. Laws ch. 468, \u00a7 1. Plaintiff retired 1 July 1985. At the time he retired, LEO, governed by N.C.G.S. \u00a7 143-166 et seq. (repealed 1 January 1986), permitted beneficiaries re-employed upon retirement in the private sector or in a public non-law enforcement field to receive full retirement benefits even upon such re-employment. See N.C. Admin. Code tit. 20, r. 2K.0609 (repealed 1 January 1986) (if reemployed as law enforcement officer of the State or any political subdivision thereof, retirement allowance shall cease).\nOn 1 January 1986, by legislative act, all members of LEO employed by or retired from local government agencies were transferred into the North Carolina Local Governmental Employees\u2019 Retirement System (LGERS), which assumed responsibility for paying retirement benefits to former members of LEO, including plaintiff. See 1985 N.C. Sess. Laws c. 479, \u00a7 196(t); N.C.G.S. \u00a7 143-166.50(b) (1993). Further, former members of LEO became subject to an existing LGERS earnings limitation provision imposed upon beneficiaries who retired on early or service retirement and subsequently took employment with another LGERS participating employer. See N.C.G.S. \u00a7 128-24(5)(c) (1995). This provision required suspension of LGERS retirement benefits of employees whose earnings exceeded a specified cap. However, former members of LEO who retired and were re-employed by a LGERS participating employer prior to 1 January 1986 were exempted from the cap. N.C.G.S. \u00a7 128-24(5a) (1995). In addition, former LEO employees who retired prior to 1 January 1986, but were not re-employed by a LGERS participating employer until after that date, were allowed a three-year phase-in period and not subjected to the earnings cap until 1 January 1989. Id. '\nPlaintiff, who retired from his law enforcement position with Onslow County 1 July 1985, accepted employment in a non-law enforcement capacity with the county, a LGERS participating employer, in April 1986. Following the statutory phase-in period, he became subject to the earnings cap of G.S. \u00a7 128-24(5)(c) on 1 January 1989.\nPlaintiff filed the instant suit 6 July 1989, seeking that G.S. \u00a7 128-24(5)(c) be declared unconstitutional as applied to him, as well as temporary and permanent injunctions blocking application of the earnings cap to his retirement benefits. Defendants\u2019 4 May 1993 motion for summary judgment was granted as to each of plaintiff\u2019s claints by the trial court 17 June 1994. Plaintiff filed notice of appeal to this Court 15 July 1994.\nPlaintiff contends G.S. \u00a7 128-24(5)(c) operates to impair his vested contract rights to retirement benefits in contravention of Article I, \u00a7 10 of the United States Constitution and also denies him due process of the law in contravention of the Fourteenth Amendment to the federal constitution and Article I, \u00a7 19 of the state constitution. Plaintiff further asserts defendants are in any event equitably estopped from restricting said benefits by virtue of his detrimental reliance upon defendants\u2019 representations. We discuss each of plaintiff\u2019s contentions separately.\nI.\nArticle I, \u00a7 10 of the federal constitution (the Contract Clause) provides, inter alia: \u201cNo state shall . . . pass any . . . Law impairing the Obligation of Contracts . .. .\u201d This Court has set forth a three-part test, adopted from United States Trust Co. v. New Jersey, 431 U.S. 1, 52 L. Ed. 2d 92, reh\u2019g denied, 431 U.S. 975, 53 L. Ed. 2d 1073 (1977), to measure whether a legislative act violates the Contract Clause. See Faulkenbury v. Teachers\u2019 & State Employees\u2019 Retirement System, 108 N.C. App. 357, 371, 424 S.E.2d 420, 427, aff\u2019d per curiam, 335 N.C. 158, 436 S.E.2d 821 (1993), and Simpson v. N.C. Local Gov\u2019t Employees\u2019 Retirement System, 88 N.C. App. 218, 225, 363 S.E.2d 90, 94 (1987), aff\u2019d per curiam, 323 N.C. 362, 372 S.E.2d 559 (1988).\nUnder the test, we first must determine herein whether the state incurred a contractual obligation with regards to retirement benefits due plaintiff under the statutes governing LEO. See Faulkenbury, 108 N.C. App. at 371, 424 S.E.2d at 427. We hold a contractual relationship existed between the state and plaintiff as a retiree with vested benefits.\n[A] government retiree\u2019s pension is correctly characterized as deferred compensation to which the retiree is contractually entitled.\nId. at 370, 424 S.E.2d at 426. An affidavit submitted by defendants concedes that\n[a]t the time the plaintiff commenced service, he was required to render ten years of creditable membership service in order to establish his entitlement to a benefit[,]\nand that \u201cplaintiff completed ten years of service on July 1, 1969.\u201d\nHowever, defendants insist only \u201cthose who had retired and returned to work on the effective date of [the earnings cap specified in] G.S. 128-24(5)(c)\u201d could legitimately claim vested contract rights. Defendants\u2019 argument fails.\nSimpson instructs us that:\n[a] public employee has a right to expect that the retirement rights bargained for in exchange for his loyalty and continued services, and continually promised him over many years, will not be removed or diminished. Plaintiffs . . . had a contractual right to rely on the terms of the retirement plan as these terms existed at the moment their retirement rights became vested.\n88 N.C. App. at 224, 363 S.E.2d at 94. The foregoing directive from Simpson was recently reaffirmed by this Court in Hogan v. City of Winston-Salem, 121 N.C. App. 414, 419-20, 466 S.E.2d 303, 307, review granted, 343 N.C. 122, 468 S.E.2d 781 (1996). Therefore, applying the interpretation of \u201cvested\u201d employed in Simpson and Hogan, we hold plaintiffs contractual right to his pension \u201cvested\u201d 1 July 1969.\nWhile defendants point to Griffin v. Bd. of Com\u2019rs. of Law Officers\u2019 Retirement Fund, 84 N.C. App. 443, 445, 352 S.E.2d 882, 884, appeal dismissed and disc. review denied, 319 N.C. 672, 356 S.E.2d 776 (1987); accord, Kestler v. Bd. of Trustees of N.C. Retirement Sys., 48 F.3d 800 (4th Cir.), cert. denied,-U.S.-, 133 L. Ed. 2d 124 (1995), arguing it stands for the proposition that an individual\u2019s pension rights do not take effect until retirement, (a stance expressly disavowed in Hogan, see 121 N.C. App. at 419-20, 466 S.E.2d at 307), plaintiff in any event meets such a deadline. Plaintiff retired 1 July 1985, well before the time G.S. \u00a7 128-24(5)(c) became applicable to former LEO beneficiaries on 1 January 1986.\nAt this juncture, we note plaintiff has expressly limited his argument to the proposition that G.S. \u00a7 128-24(5)(c) is inapplicable to him because his retirement rights had vested and he had retired prior to the effective date of the statute. Our holding herein accordingly is limited to the argument before us. See N.C.R. App. P. 28(a) (scope of review is limited to questions presented in the briefs).\nThe United States Trust test directs that we next examine whether the state\u2019s action in limiting plaintiff\u2019s benefits in the manner specified in G.S. \u00a7 128-24(5)(c) impaired its contractual obligation to plaintiff. See Faulkenbury, 108 N.C. App. at 371, 424 S.E.2d at 427. Our conclusion again is in the affirmative.\nDefendants, as the parties moving for summary judgment, maintained the burden in the trial court to show the absence of a genuine issue as to any material fact. See Atkins v. Beasley, 53 N.C. App. 33, 38, 279 S.E.2d 866, 870 (1981); see also Simpson, 88 N.C. App. at 226, 363 S.E.2d at 95. There was no requirement for plaintiff to come forward with evidence unless defendants \u201coffered evidence which negate[d]\u201d the claim of the plaintiff in its entirety. See Mace v. Construction Corp., 48 N.C. App. 297, 302, 269 S.E.2d 191, 194 (1980).\nIn Simpson, this Court held the plaintiffs\u2019 contractual rights were impaired \u201cinasmuch as plaintiffs stand to suffer significant reductions in their retirement allowances as a result of the legislative amendment under challenge.\u201d Simpson, 88 N.C. App. at 225, 363 S.E.2d at 94. The same may be said of plaintiffs circumstance herein. Further, the record contains no evidence of defendants having negated plaintiffs claim that application of G.S. \u00a7 128-24(5)(c) would result in forfeiture of his retirement benefits.\nThe final determination under the tripartite test is whether the disturbance of plaintiffs benefits under G.S. \u00a7 128-24(5)(c) was \u201creasonable and necessary to serve an important public purpose.\u201d Simpson, 88 N.C. App. at 225, 363 S.E.2d at 94 (quoting United States Trust, 431 U.S. at 25, 52 L. Ed. 2d at 112). When examining legislative modification of a state\u2019s own financial obligations under the Contract Clause,\ncomplete deference to a legislative assessment of reasonableness and necessity is not appropriate because the State\u2019s self-interest is at stake. A governmental entity can always find a use for extra money, especially when taxes do not have to be raised. If a State could reduce its financial obligations whenever it wanted to spend the money for what it regarded as an important public purpose, the Contract Clause would provide no protection at all.\nUnited States Trust, 431 U.S. at 26, 52 L. Ed. 2d at 112.\nRegarding this issue, we observe initially that defendants have advanced in their appellate brief numerous bases upon which they contend that the statute in question may be deemed \u201creasonable and necessary.\u201d However, it is elementary that assertions of fact in a brief may not go to support a motion for summary judgment. See Fowler v. Williamson, 39 N.C. App. 715, 717, 251 S.E.2d 889, 890 (1979) (\u201cStatements of fact made in briefs . . . may be assumed as true as against the party asserting them.\u201d (emphasis added)).\nSignificantly, the record lacks any showing by defendants upon which it might be determined that G.S. \u00a7 128-24(5)(c) satisfies the third prong of Contract Clause analysis as a matter of law. Moreover, such a determination would likely involve the resolution of factual disputes and therefore would be before this Court prematurely. See Simpson, 88 N.C. App. at 225-26, 363 S.E.2d at 95-95 (\u201creasonable and necessary\u201d issue not \u201cproperly resolved in the court below,\u201d defendants not having met burden \u201cto show that there are no genuine issues as to any material fact\u201d).\nIn sum, summary judgment in favor of defendants on plaintiffs claim under the Contract Clause was improvidently allowed and must be reversed.\nII.\nWe next address plaintiffs alternative claim that his pension is a property right of which he has been deprived without due process of law. See Pineman v. Oechslin, 488 A.2d 803, 810 (Conn. 1985) (\u201cthe due process approach protects public employees from legislative confiscation of the retirement fund and arbitrary forfeiture of pension benefits\u201d).\nThe I4th Amendment to the United States Constitution (the Due Process Clause) guarantees that a person may not be deprived of property by the State without due process of law. Similarly, Article I, \u00a7 19 of the North Carolina Constitution (the \u201claw of the land\u201d clause) provides that the State may not deprive a person of his or her property except by the \u201claw of the land.\u201d\nPlaintiff contends G.S. 128-24(5)(c), \u201cas applied to [him],\u201d i.e., an individual who retired before the statute became applicable to former LEO beneficiaries, \u201cis irrational and arbitrary, and the trial court committed reversible error in finding it constitutional.\u201d Plaintiff asserts the statute operates retroactively to deprive him of benefits already earned.\nIt is undisputed that the statute has been applied to plaintiff in a retroactive manner. Retroactive legislation includes not only statutes which \u201ctake effect from a time anterior to their passage,\u201d but \u201call statutes, which, though operating only from their passage, affect vested rights and past transactions.\u201d Landgraf v. USI Film Products, 511 U.S. 244, 268-69, 128 L. Ed. 2d 229, 254 (1994) (citation omitted).\nAs opposed to the \u201creasonable and necessary to serve an important public purpose,\u201d standard, United States Trust, 431 U.S. at 25, 52 L. Ed. 2d at 112 (emphasis added), against which alleged violations of the Contract Clause are measured, the standard of review applied regarding due process challenges to retrospective legislation is less stringent. As the United State Supreme Court has stated,\n[w]e have never held .. . that the principles embodied in the Fifth Amendment\u2019s Due Process Clause are coextensive with prohibitions existing against state impairments of pre-existing contracts. Indeed, to the extent that recent decisions of the Court have addressed the issue, we have contrasted the limitations imposed on States by the Contract Clause with the less searching standards imposed on economic legislation by the Due Process Clauses [of the Fifth and Fourteenth Amendments].\nPension Benefit Guaranty Corp. v. Gray & Co., 467 U.S. 717, 733, 81 L. Ed. 2d 601, 613 (1984).\nAccordingly, the due process standard of review is as follows:\n[Legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and [] the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.\nUsery v. Turner Elkhom Mining Co., 428 U.S. 1, 15-17, 49 L. Ed. 2d 752, 766-67 (1976). Nonetheless,\n[t]he retrospective aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former.\nId. Further, constitutional scholars have suggested that under circumstances where a legislative body attempts to modify the government\u2019s own obligation of contract through retroactive legislation, a heightened scrutiny of proffered justifications may be required. See John E. Nowak & Ronald D. Rotunda, Constitutional Law \u00a7 11.9, at 427 (5th ed. 1995).\nTherefore, in the case sub judice, it must be decided whether it was \u201carbitrary and irrational\u201d for the State to apply the earnings cap of G.S. \u00a7 128-24(5)(c) to plaintiff, an individual who retired prior to the effective date of the statute. See Pineman v. Fallon, 662 F. Supp. 1311, 1313 (D. Conn. 1987), aff'd, 842 F.2d 598 (2d Cir. 1988), cert. denied, 488 U.S. 824, 102 L. Ed. 2d 48 (1988) (while no due process violation found, court emphasized that \u201cthe legislature did not undertake to modify the retirement benefits of those who had already left state service by [effective date of the statute]\u201d).\nAs with the \u201creasonable and necessary\u201d issue regarding the Contract Clause in Simpson, 88 N.C. App. at 225-26, 363 S.E.2d at 94-95, and in the case sub judice, the record before us concerning the \u201carbitrary and irrational\u201d question has not been sufficiently developed to the extent that this Court might hold defendants were properly entitled to judgment as a matter of law. Indeed, the instant record is comprised in the main of counsels\u2019 vigorous disputation of plaintiffs recusal motion, discussed below, and contains only minimal reference touching upon the issue of whether \u201cthe [State] has acted in an arbitrary and irrational way,\u201d Usery, 428 U.S. at 15, 49 L. Ed. 2d at 766, through its retroactive application of G.S. \u00a7 128-24(5)(c) to plaintiff. The trial court\u2019s grant of summary judgment on plaintiffs federal due process claim is therefore reversed.\nRegarding plaintiffs state constitutional claim, although the \u201claw of the land\u201d clause and the Due Process Clause are similar, our Supreme Court has reserved to the courts of this state\nthe right to grant relief against unreasonable and arbitrary state statutes under Article I, section 19 of the Constitution of North Carolina in circumstances under which no relief might be granted by the due process clause of the fourteenth amendment .... Whether a state statute violates the law of the land clause \u201cis a question of degree and reasonableness in relation to the public good likely to result from it.\u201d\nLowe v. Tarble, 313 N.C. 460, 462, 329 S.E.2d 648, 650 (1985) (quoting In re Hospital, 282 N.C. 542, 550, 193 S.E.2d 729, 735 (1973)). The test under our state \u201claw of the land\u201d clause thus involves a weighing of the \u201cdegree and reasonableness\u201d of the deprivation rendered by G.S. 128-24(5)(c) \u201cin relation to the public good likely to result from it.\u201d Id. For reasons indicated earlier, we again do not believe the record herein was developed sufficiently to allow the trial court to resolve as a matter of law in defendants\u2019 favor their motion for summary judgment as to these matters, see Simpson, 88 N.C. App. at 225-26, 363 S.E.2d at 94-95, and therefore reverse the entry of summary judgment as to plaintiff\u2019s claim under the \u201claw of the land\u201d clause.\nIII.\nConcerning plaintiff\u2019s third claim, based upon the doctrine of equitable estoppel, however, we summarily reject his contention that the trial court\u2019s allowance of defendants\u2019 summary judgment motion was error.\n\u201cThe essential elements of an equitable estoppel as related to the party estopped are: (1) Conduct which amounts to a false representation or concealment of material facts, or, at least, which is reasonably calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party afterwards attempts to assert; (2) intention or expectation that such conduct shall be acted upon by the other party, or conduct which at least is calculated to induce a reasonably prudent person to believe such conduct was intended or expected to be relied and acted upon; (3) knowledge, actual or constructive, of the real facts.\u201d\nMeachan v. Board of Education, 47 N.C. App. 271, 277-78, 267 S.E.2d 349, 353 (1980) (quoting Hawkins v. Finance Corp., 238 N.C. 174, 177-78, 77 S.E.2d 669, 672 (1953)). In addition, the elements as to the party claiming estoppel are:\n\u201c(1) lack of knowledge and the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party sought to be estopped; and (3) action based thereon of such a character as to change his position prejudicially.\u201d\nId. at 278, 267 S.E.2d at 353.\nRegarding his claim of estoppel, plaintiffs complaint alleged defendants represented that re-employment following retirement would not affect his benefits, but changed the policy subsequent to his retirement by making him subject to G.S. \u00a7 128-24(5)(c). In addition, plaintiff\u2019s affidavit stated the representation was contained in an employee handbook, and asserted:\nI relied upon the laws that existed at the time that I retired in choosing my future career. Had I known that the law was going to change I would have not retired, but rather would have continued to work. Furthermore, having chosen to work for Onslow County as I did, I had already committed myself to a course of conduct which could not easily be changed, in that it is very difficult to change careers at the age that I was.\nThe foregoing tender by plaintiff failed to withstand defendants\u2019 showing that an essential element of plaintiff\u2019s estoppel claim was wanting. See Zimmerman v. Hogg & Allen, 286 N.C. 24, 29, 209 S.E.2d 795, 798 (1974) (movant meets summary judgment burden by showing essential element of opposing party\u2019s claim nonexistent). As defendants point out, the representation upon which plaintiff allegedly relied was indisputably true at the time it was made and in no way constituted \u201cconduct which amount[ed] to false representation or concealment of material facts.\u201d See Fike v. Bd. of Trustees, 53 N.C. App. 78, 279 S.E.2d 910, disc. review denied, 304 N.C. 194, 285 S.E.2d 98 (1981) (system estopped from denying benefits where plaintiff relied on representation in publication of system that employer would forward his benefits application to system, but employer failed to do so). The tri\u00e1l court therefore did not err in granting defendants\u2019 summary judgment motion as to plaintiff\u2019s equitable estoppel claim.\nIV.\nFinally, plaintiff assigns as error the trial judge\u2019s refusal to grant plaintiff\u2019s recusal motion based on\ntwo improper ex parte communications between the court and defense counsel which reasonably created doubts about the court\u2019s ability to rule impartially on the defense\u2019s motion for summary judgment.\nAfter review of the record, we find this assignment of error unfounded.\nIn sum, the trial court\u2019s grant of defendants\u2019 summary judgment motion as to plaintiff\u2019s claims under the Contract Clause and the Due Process Clause of the United States Constitution and the \u201claw of the land\u201d clause of the North Carolina Constitution is reversed. As to plaintiff\u2019s equitable estoppel claim, the entry of summary judgment is affirmed.\nAffirmed in part; reversed in part and remanded.\nJudges EAGLES and LEWIS concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Jeffrey S. Miller for plaintiff-appellant.", "Attorney General Michael F. Easley, by Special Deputy Attorney General Alexander McC. Peters, for the State." ], "corrections": "", "head_matter": "CHARLES B. MIRACLE, Plaintiff v. NORTH CAROLINA LOCAL GOVERNMENT EMPLOYEES RETIREMENT SYSTEM, a corporation; BOARD OF TRUSTEES OF THE NORTH CAROLINA LOCAL GOVERNMENT EMPLOYEES RETIREMENT SYSTEM, a body politic and corporate; E.T. BARNES, Director of the Retirement System Division and Deputy Treasurer for the State of North Carolina (in his official capacity); HARLAN E. BOYLES, Treasurer of the State of North Carolina and Chairman of the Board of Trustees of the North Carolina Local Government Employees Retirement System (in his official capacity); and THE STATE OF NORTH CAROLINA, Defendants\nNo. COA94-1241\n(Filed 5 November 1996)\n1. Retirement \u00a7 10 (NCI4th)\u2014 retired law officer \u2014 retroactive statutory salary cap \u2014 impairment of contract \u2014 violation of contract clause \u2014 summary judgment improper\nWhere plaintiff law enforcement officer\u2019s retirement rights had vested and he had retired prior to the effective date of N.C.G.S. \u00a7 128-24(5)(c), which required the suspension of retirement .benefits from the N.C. Local Governmental Retirement System for retirees whose postretirement earnings exceeded a specified cap, the State\u2019s action in limiting plaintiff\u2019s benefits in the manner specified in the statute impaired its contractual obligation to plaintiff. However, summary judgment on the issue of whether the application of \u00a7 128-24(5)(c) to plaintiff violated the Contract Clause of Art. I, \u00a7 10 of the U.S. Constitution was precluded where genuine issues of material fact existed as to whether the disturbance of plaintiff\u2019s benefits was \u201creasonable and necessary to serve an important public purpose.\"\nAm Jnr 2d, Summary Judgment \u00a7 27.\nConstitutionality, construction, and application of statute or ordinance providing for reduction of pension or retirement benefit of public officer or employee because of independent income. 7 ALR2d 692.\nVariations in retirement, pension, or death benefit plans as unlawful employment practice under 42 USCS \u00a7 2000e-2(a). 35 ALR Fed. 15.\n2. Retirement \u00a7 10 (NCI4th)\u2014 retired law officer \u2014 retroactive statutory salary cap \u2014 due process \u2014 summary judgment improper\nSummary judgment was improperly entered for defendants on a claim that the retroactive application of the statutory cap on postretirement earnings of a law enforcement officer who retired before the effective date of the statute violated the officer\u2019s due process rights under the Fourteenth Amendment to the U.S. Constitution where a genuine issue of material fact remained on the issue of whether it was \u201carbitrary and irrational\u201d for the State to apply the earnings cap to the officer.\nAm Jur 2d, Civil Rights \u00a7 287; Constitutional Law \u00a7 186; Summary Judgment \u00a7 27.\nSupreme Court\u2019s views as to due process requirements of forfeitures. 76 L. Ed. 2d 852.\nRetroactive application of federal legislation as violating due process clause of Federal Constitution\u2019s Fifth Amendment \u2014 Supreme Court cases. 107 L. Ed. 2d 1105.\n3. Retirement \u00a7 10 (NCI4th)\u2014 retired law officer \u2014 retroactive statutory salary cap \u2014 Law of the Land Clause \u2014 summary judgment improper\nSummary judgment was improperly entered for defendants on a claim that the retroactive application of the statutory cap on postretirement earnings of a law enforcement officer who retired before the effective date of the statute violated the officer\u2019s rights under the Law of the Land Clause of Art. I, \u00a7 19 of the N.C. Constitution where a genuine issue of material fact remained as to the degree and reasonableness of the deprivation rendered by the statute in relation to the public good likely to result from it.\nAm Jur 2d, Constitutional Law \u00a7\u00a7 563, 586; Summary Judgment \u00a7 27.\nSupreme Court\u2019s views as to propriety under Federal Constitution\u2019s due process guarantees of summary administrative deprivation of property interest. 69 L. Ed. 2d 1044.\n4. Estoppel \u00a7 13 (NCI4th)\u2014 retired local government employee \u2014 retroactive statutory salary cap \u2014 State not estopped\nPlaintiff retired law enforcement officer\u2019s allegation that the State represented that reemployment following retirement would not affect his benefits but changed this policy subsequent to his retirement by making him subject to a postretirement earnings cap in N.C.G.S. \u00a7 128-24(5)(c) did not establish an equitable estoppel claim against the State because the representation upon which plaintiff allegedly relied was indisputably true at the time it was made and in no way constituted conduct which amounted to a false representation or concealment of a material fact.\nAm Jur 2d, Estoppel and Waiver \u00a7 133; Pensions and Retirement Funds \u00a7 123.\nQuantum or degree of evidence necessary to prove an equitable estoppel. 4 ALR3d 361.\nAppeal by plaintiff from judgment entered 17 June 1994 by Judge D. Jack Hooks, Jr., in Onslow County Superior Court. Heard in the Court of Appeals 11 September 1995.\nJeffrey S. Miller for plaintiff-appellant.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Alexander McC. Peters, for the State." }, "file_name": "0285-01", "first_page_order": 323, "last_page_order": 334 }