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Restitution – Limitations – Federal ERISA Preemption – Pension Fund Assets

State v. Richard J. Kenyon, 225 Wis.2d 657, 593 N.W.2d 491 (Ct. App. 1999)
For Kenyon: Rex Anderegg

Issue/Holding: Employee Retirement Income Security Act trumps Victims’ Rights. Kenyon was convicted of stealing about $150,000, and was ordered to pay restitution by “voluntarily” withdrawing funds from his pension fund. The COA reverses, holding that ERISA’s preemption of state attempts to assign or alienate pension benefits prohibits this effort to “create[] an equitable exception to ERISA’s anti-alienation clause.”

But compare, U.S. v. Novak, 9th Cir No. 04-55838, 2/22/07 (“criminal restitution orders can be enforced by garnishing retirement funds, but with the funds only payable when the defendant has a current, unilateral right to receive payments under the terms of the retirement plan”).

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