Kenneth Scott NIVENS, Individually and as representatives of a class pursuant to Rule 23, Fed.R.Civ.P.; Glen Lance Maners, Individually and as representatives of a class pursuant to Rule 23, Fed.R.Civ.P.; Terri Lynn Stork, Individually and as representa- tives of a class pursuant to Rule 23, Fed.R.Civ.P., Plaintiffs-Appellants, v. Peter S. GILCHRIST, III, In his official capacity as District Attorney for the 26th Prosecutorial District for the State of North Carolina, and as representative of a class pursuant to Rule 23, Fed.R.Civ.P., Defendant-Appellee.
No. 02-1176.
United States Court of Appeals, Fourth Circuit.
Decided Feb. 11, 2003.
As Amended March 11, 2003.
319 F.3d 151
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge MOTZ and Judge KING joined.
WILLIAMS, Circuit Judge.
Appellants Kenneth Scott Nivens, Glen Lance Maners, and Terri Lynn Stork brought an action in the United States District Court for the Western District of North Carolina, pursuant to
I.
The underlying facts in this case are not in dispute. On July 8, 2000, Appellants were arrested for various violations of the North Carolina Unauthorized Substances Act relating to the sale of 1024 ecstasy pills. Shortly thereafter, North Carolina assessed taxes for possession of the drugs, including penalties and interest, totaling $8,677.13,1 pursuant to North Carolina‘s Unauthorized Substances Tax Act,
II.
A.
The sole issue on appeal is whether the district court properly abstained from exercising jurisdiction under Younger, thus declining to reach Appellants’ Fifth Amendment claims under the Double Jeopardy Clause.4 We review the district court‘s decision to abstain under Younger for abuse of discretion. Martin Marietta Corp. v. Md. Comm‘n on Human Rel., 38 F.3d 1392, 1396 (4th Cir.1994); see also Freeman v. Case Corp., 118 F.3d 1011, 1014 (4th Cir.1997) (noting that an error of law constitutes an abuse of discretion).
Based upon principles of federalism, the Supreme Court in Younger articulated the policy of comity underlying the federal courts’ obligation to refrain from adjudicating the merits of federal constitutional claims in an underlying state criminal action: adjudicating such claims needlessly injects federal courts into ongoing state criminal prosecutions, undermines the state‘s ability to enforce its laws, and does not show “a proper respect for state functions.” Younger, 401 U.S. at 44, 91 S.Ct. 746. The Court also recognized that federal courts acting as courts of equity in this context “should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Id. at 43-44, 91 S.Ct. 746. Later, in Middlesex County Ethics Comm. v. Garden State Bar Ass‘n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d, 116 (1982), the Court held that a federal court should abstain from interfering in a state proceeding, even though it has jurisdiction to reach the merits, if there is (1) an ongoing state judicial proceeding, instituted prior to any substantial progress in the federal proceeding; that (2) implicates important, substantial, or vital state interests; and (3) provides an adequate opportunity for the plaintiff to raise the federal constitutional claim advanced in the federal lawsuit. Id. at 432, 102 S.Ct. 2515; Martin Marietta Corp., 38 F.3d at 1396 (stating the same considerations).
B.
The Supreme Court has recognized that in “extraordinary circumstances,” federal courts have discretion to disregard the “strong federal policy against federal court interference with pending state judicial proceedings.” Middlesex, 457 U.S. at 431, 102 S.Ct. 2515. In Younger, the Supreme Court explained the exception to this “strong federal policy“:
“[W]hen absolutely necessary for protection of constitutional rights, courts of the United States have power to enjoin state officers from instituting criminal actions. But this may not be done, except under extraordinary circumstances, where the danger of irreparable loss is both great and immediate. Ordinarily, there should be no interference with such officers; primarily, they are charged with the duty of prosecuting offenders against the laws of the state, and must decide when and how this is to be done. The accused should first set up and rely on his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.”
Younger, 401 U.S. at 44, 91 S.Ct. 746 (emphasis added) (quoting Fenner v. Boykin, 271 U.S. 240, 243-44, 46 S.Ct. 492, 70 L.Ed. 927 (1926)); see also Kugler v. Helfant, 421 U.S. 117, 123-24, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975) (holding that federal equitable intervention in a state trial may be warranted upon a showing of “bad faith or harassment by state officials,” “where the state law to be applied in the criminal proceeding is flagrantly and patently violative of express constitutional prohibitions,” or where “other extraordinary circumstances” exist that present the necessary threat of irreparable injury). Thus, a federal court must abstain from interfering with an ongoing state proceeding where a litigant has “an ‘opportunity to raise and have timely decided by a competent state tribunal the federal issues involved’ and . . . no bad faith, harassment, or other exceptional circumstances dictate to the contrary.” Middlesex, 457 U.S. at 437, 102 S.Ct. 2515 (quoting Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973)).
Appellants do not claim that their prosecution was undertaken with the intent to harass or because of any bad faith. Nor do they claim that they have exhausted their avenues for relief in the state court proceeding. See Huffman v. Pursue Ltd., 420 U.S. 592, 608-10 & n. 21, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (requiring, for a
C.
1.
Appellants first contend that Younger is inapplicable because, they assert, it “plainly appears” that the courts of North Carolina will “not afford” them “adequate protection.” Younger, 401 U.S. at 44, 91 S.Ct. 746. They concede that they have pretrial avenues in which they can raise their double jeopardy claims in state court, but they argue that because the North Carolina Supreme Court has already decided that North Carolina‘s pre-1995 amendment drug tax5 is not a criminal penalty, see State v. Ballenger, 123 N.C.App. 179, 472 S.E.2d 572 (1996), aff‘d, 345 N.C. 626, 481 S.E.2d 84 (1997) (per curiam), any contrary argument in a North Carolina state court would be futile. Further, Appellants note that this court has determined that North Carolina‘s pre-1995 amendment drug tax is a criminal penalty. See Lynn v. West, 134 F.3d 582, 593-94 (4th Cir.1998). The disagreement between the North Carolina courts and this court, Appellants assert, demonstrates that North Carolina will violate their federal constitutional rights and, thus, will not afford them adequate protection. As discussed below, we conclude that because neither the Fourth Circuit nor the North Carolina Supreme Court has ever analyzed the post-amendments drug tax under which Appellants were assessed their taxes to determine if it is a criminal punishment, Appellants cannot demonstrate that the North Carolina courts will plainly not afford them adequate protection.
The decisions in Ballenger and Lynn were based on an analysis of Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 783, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). In Kurth Ranch, the United States Supreme Court determined that Montana‘s tax on illegal drugs was so fundamentally punitive that it was actually a criminal punishment such that an assessment of the drug tax, after a criminal penalty had already been imposed, violated the Double Jeopardy Clause by imposing an unconstitutional second punishment. Id. at 783, 114 S.Ct. 1937. Montana characterized its law as civil, but the Court determined that it was actually a “second punishment” for double jeopardy purposes by looking at four features: “(1) the high tax rate, (2) the deterrent purpose of the tax, (3) the fact that the tax was conditioned on the commission of a crime, and (4) the fact that the tax was levied on ‘possession of goods that no longer exist and that the taxpayer never lawfully possessed.‘” Lynn, 134 F.3d at 589 (quoting Kurth Ranch, 511 U.S. at 780-84, 114 S.Ct. 1937).6
the North Carolina tax becomes payable within forty-eight hours after the taxpayer comes into possession of the substance [and] is not a tax on confiscated goods, as was the case with the Montana tax, which became due only upon the taxpayer‘s arrest for possession of the substance. To the contrary, the dealer is not required to disclose his or her identity . . . and any information obtained . . . is confidential and cannot be used in a criminal prosecution. . . .
Id. at 575.
After the Ballenger decision, we construed the same pre-1995 amendment drug tax and concluded that it was a criminal penalty because:
the [d]rug [t]ax contains no features that allow us to distinguish Kurth Ranch. The rate of taxation is even steeper than the tax in Kurth Ranch. Unlike the application of a normal income tax on illegal activity, the [d]rug [t]ax is enforced only against criminals. . . . [T]he [d]rug [t]ax does not contemplate lawful dealings in the product that is the subject of the tax. The [d]rug [t]ax singles out a class of persons who have engaged in criminal activity and subjects the class to a rate of taxation far beyond that faced by any legitimate taxpayer.
In 1995, 1997, and again in 1998, before North Carolina assessed the drug tax on Appellants, the General Assembly of North Carolina, partially in response to the Supreme Court‘s decision in Kurth Ranch and our decision in Lynn, dramatically altered its drug tax. For example, in 1995, the General Assembly (1) made the drug tax payable upon receipt of drugs rather than upon a criminal violation; (2) lowered the tax on various drugs; (3) repealed the section that made the violation of the drug tax a Class I felony; and (4) lowered the interest and penalty applicable when a dealer fails to pay the tax within 45 days of receiving the drugs from 100% to 50%. See
Whereas, the intent of the General Assembly in enacting this tax continues to be to raise revenue through a civil tax on this highly profitable activity . . . [and] not to create a criminal penalty . . . Whereas, upon . . . challenge in the federal courts, the controlled substance tax was found in 1998 to be a criminal penalty . . . Whereas, it is, therefore, the intent of the North Carolina General Assembly to modify the tax in accordance with [Lynn], so that the tax may continue to be assessed in a manner consistent with the law as interpreted in [Lynn].
An Act to Amend the Excise Tax on Controlled Substances, N.C. Sess. Laws 1998-218 (1998).
Neither North Carolina‘s Ballenger decision nor our decision in Lynn addressed North Carolina‘s amended drug tax, which is at issue in this case, because both cases involved tax assessments before 1995.8 In fact, no court9 has considered whether North Carolina‘s post-amendments drug tax provides the “the clearest proof” of punitive purpose or effect necessary to override the General Assembly‘s intent to create a civil law and transform it into a criminal penalty. Hudson v. United States, 522 U.S. 93, 99-100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (holding that “only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty“) (internal citations omitted).10 Based on the wide-ranging amend-
2.
Appellants argue in the alternative that Younger abstention is inappropriate under
In Gilliam III, petitioners argued that because a state trial judge granted a mistrial over their objection and in the absence of manifest necessity during their first trial, subjecting them to a second criminal prosecution would violate their rights under the Double Jeopardy Clause. We did not hold that an allegation of a double jeopardy violation automatically precludes Younger abstention. Rather, after detailing the well-settled double jeopardy jurisprudence protecting individuals against successive prosecutions for the same offense, we concluded that petitioners’ allegations established a substantial likelihood of an irreparable double jeopardy violation. Id. at 893-95. We expressly based our decision not to abstain under Younger on the fact that a “portion of the constitutional protection [the Double Jeopardy Clause] affords would be irreparably lost if Petitioners were forced to endure the second trial before seeking to vindicate their constitutional rights at the federal level.” Id. at 904 (emphasis added); see also Abney v. United States, 431 U.S. 651, 660, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (concluding that the protection from multiple trials for the same offense afforded by the Double Jeopardy Clause “would be significantly undermined if appellate review were postponed until after conviction and sentence“).
In contrast, Appellants have presented a much less compelling argument that absent federal court intervention, they will suffer an immediate and irreparable constitutional deprivation. See e.g., Younger, 401 U.S. at 44, 91 S.Ct. 746. Unlike the defendants in Gilliam III, Appellants yet have access to pretrial avenues in their current criminal prosecutions whereby they may raise their constitutional contentions before any double jeopardy injury could inure. See supra at 153; see also
We also note that Appellants have not shown a “great” or “substantial” likelihood that they will suffer any constitutional deprivation. See, e.g., Younger, 401 U.S. at 45, 91 S.Ct. 746 (holding that “danger of irreparable loss [must be] great and immediate“); see also City of Los Angeles v. Lyons, 461 U.S. 95, 111-12, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (holding that a “substantial and immediate irreparable injury” is a precondition to invoking the exceptional circumstances exception to Younger abstention). For Appellants to establish that their prosecution violates double jeopardy by exposing them to multiple criminal punishments, they must prove: (1) that the payment of the drug tax was a criminal penalty; (2) that took place in a separate proceeding; (3) for the same offense for which they are now being prosecuted. See Hudson, 522 U.S. at 98, 118 S.Ct. 488 (setting forth test for double jeopardy violation based upon multiple punishments). As is set forth below, there are numerous, significant impediments to Appellants’ ability to make this showing.
Initially, it is arguable whether the current version of North Carolina‘s drug tax constitutes criminal punishment within the meaning of Hudson. See Hudson, 522 U.S. at 98, 118 S.Ct. 488 (concluding that administrative sanctions were not sufficiently punitive and, therefore, were not criminal penalties for purposes of double jeopardy); see also Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (discussing role of statutory construction in determining whether penalty is civil or criminal under Hudson); see generally Lisa Melenyzer, Double Jeopardy Protections from Civil Sanctions after Hudson v. United States, 89 J.Crim. L. & Crim. 1007, 1009-1011, 1016-23 (1999) (explaining the evolution, criticisms, and limits of the multiple punishment doctrine). Appellants contend that the drug tax is a criminal penalty on the basis of Lynn. We cannot agree that Lynn is controlling. As is discussed at length above, see supra at 156-158, since Lynn was decided, North Carolina has significantly amended its drug tax laws. These amendments have yet to be analyzed to deter-
Assuming arguendo that the current drug tax is a criminal penalty, it is not clear that the payment of the drug tax took place in a prior “proceeding” within the meaning of Hudson. See Hudson, 522 U.S. at 99, 118 S.Ct. 488 (concluding that the Double Jeopardy Clause protects individuals from the imposition of “multiple criminal punishments” for the same offense, but ”only when such occurs in successive proceedings.“). When Appellants received their drug tax assessment, they simply paid the tax; they apparently did not participate in a hearing or an appearance of any type. Under Hudson, if there has been no prior “proceeding,” Appellants’ current prosecution cannot be successive and, thus, the Double Jeopardy Clause would not be implicated.
Similarly, to the extent that the assessment of the drug tax is part of the current prosecution, and not a separate proceeding, there likely is no double jeopardy restriction on imposing both types of punishment, irrespective of whether the drug tax is deemed a “criminal” punishment. Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (“Where . . . a legislature specifically authorized cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct . . . the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.“); Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) (“[T]he question of what punishments are constitutionally permissible is no different from the question of what punishment the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution.“); United States v. Studifin, 240 F.3d 415, 418 (4th Cir.2001) (“Where the issue is solely that of multiple punishment, as opposed to multiple prosecutions, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.“); United States v. Terry, 86 F.3d 353, 355 (4th Cir.1996) (“If [the Legislature] clearly authorizes multiple punishments for the same act or transaction, the Double Jeopardy Clause is not offended when the multiple punishments are imposed after a single trial.“); Cummings v. Evans, 161 F.3d 610, 614 (10th Cir.1998) (holding that the double jeopardy inquiry is limited to determining “whether [the] state legislature intended to prescribe cumulative punishments for a single criminal incident, [and] we are bound by a state court‘s determination of the legislature‘s intent“). Thus, if the General Assembly of North Carolina contemplated and in fact intended that drug dealers be criminally punished for any drug offenses and assessed a tax for any unauthorized substances in their possession, see
III.
In conclusion, the issue before us is not whether Appellants will suffer unconstitutional multiple punishments; rather, it is whether a federal court should intervene into a state court proceeding to decide the federal constitutional issues for the state court. The essence of Younger is comity—state courts are equally entitled to, and capable of, interpreting constitutional law:
[S]ince both federal and state courts have a duty to enforce the Constitution, there is no constitutional basis, in the absence of some demonstrable infirmity in the state judicial process itself, for preferring federal courts to state courts as adjudicators of federal constitutional claims.
1 Laurence H. Tribe, American Constitutional Law, § 3-28 at 570 (3d ed.2000). “Minimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal constitutional rights.” Middlesex, 457 U.S. at 431, 102 S.Ct. 2515. Because Appellants failed to establish any of the exceptions to Younger, we conclude that the district court did not abuse its discretion in abstaining from adjudicating Appellants’ double jeopardy claim.
AFFIRMED.