State v. CatlettState v. Catlett
We are asked yet again to enter the “maelstrom of judicial activity,” to determine if the civil forfeiture of a person‘s automobile used to facilitate a drug transaction bars a subsequent criminal prosecution for the drug transaction on state and federal constitutional double jeopardy grounds. After United States v. Ursery, ___ U.S. ___, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), the
ISSUE
Does civil forfeiture of property pursuant to
FACTS
On October 25, 1993, members of the Spokane Police Department purchased “crack” cocaine from Mary Catlett (aka Mary C. Plata) through the use of a confidential informant. While under surveillance, the informant entered a residence in Spokane. Officers observed a white female (later identified as Catlett) arrive at the residence driving a blue 1982 Plymouth with Washington plates. Catlett entered the residence where the police informant purchased crack cocaine from her. Catlett then left the residence and drove away in the car. A registration check showed the vehicle‘s owner to be Mary C. Plata.
On November 19, 1993, officers obtained and executed a search warrant for another Spokane residence where drug transactions occurred. Catlett was present during the search and the police seized the 1982 Plymouth and other evidence.
On January 24, 1994, pursuant to
Catlett was subsequently charged in the Spokane County Superior Court on June 27, 1994 with delivery of a controlled substance in violation of
The forfeiture of Mary Plata‘s vehicle pursuant to civil proceedings under
RCW 69.50.505 is a punishment for purposes of federal and state double jeopardy analysis. Austin v. United States, 509 U.S. [602], 125 L.Ed.2d 488, 113 S.Ct. 2801 (1993); United States v. McCaslin, 863 F.Supp. 1299 (W.D.Wash.1994); State v. Clark, 124 Wash.2d 90, 101, 875 P.2d 613 (1994).
See App. A to Br. of Resp‘t to Court of Appeals, Findings of Fact and Conclusions of Law Re: Mot. to Dismiss For Violation of Double Jeopardy at 7-8.
On appeal, Division Three of the Court of Appeals affirmed the superior court‘s dismissal of the drug offense because a civil forfeiture of Catlett‘s car and a criminal prosecution for the controlled substance arising out of the same conduct constituted “punishment” for the “same offense,” thus violating double jeopardy. State v. Catlett, 81 Wash.App. 791, 795-96, 916 P.2d 975 (1996). The court applied State v. Clark, 124 Wash.2d 90, 875 P.2d 613 (1994), which was, in turn, based on federal cases like Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), indicating civil forfeiture was “punishment” for purposes of the
We granted the State‘s petition for review and asked the parties to respond to the following directive: “Within the time permitted by RAP 13.7(b), the parties shall submit additional briefs addressing the question whether, in light of United States v. Ursery, U.S. [sic] 116 S.Ct. 2135, 135 Led 2d [sic] 549 (1996), Wash. Const. Art. [sic] I, § 9 should be interpreted as more protective than the Double Jeopardy Clause of the
ANALYSIS
A. The Prior Civil Forfeiture of Catlett‘s Car Was Not Punishment for Purposes of the
In our divided opinion in State v. Cole, 128 Wash.2d 262, 273, 906 P.2d 925 (1995), we recognized the above-mentioned “maelstrom of judicial activity” in the area of civil forfeiture and
In Ursery, decided after the Court of Appeals’ decision in Catlett, the Supreme Court clearly held civil forfeitures are neither “punishment” nor criminal for double jeopardy purposes. Id. at ___, 116 S.Ct. at 2149. The Ursery court also clarified that the long-standing rule that civil forfeiture is remedial, enunciated in Various Items of Personal Property v. United States, 282 U.S. 577, 51 S.Ct. 282, 75 L.Ed. 558 (1931); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972); and United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984), was not abandoned or altered by its more recent decisions in Halper, Austin, or Kurth Ranch.
[N]othing in Halper, Kurth Ranch, or Austin, purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause.... [T]his Court consistently has found civil forfeitures not to constitute punishment under the Double Jeopardy Clause. It would have been quite remarkable for this Court both to have held unconstitutional a well-established practice, and to have overruled a long line of precedent, without having even suggested that it was doing so. Halper dealt with in personam civil penalties under the Double Jeopardy Clause; Kurth Ranch with a tax proceeding under the Double Jeopardy Clause; and Austin with civil forfeitures under the Excessive Fines Clause. None of those cases dealt with... in rem civil forfeitures for purposes of the Double Jeopardy Clause.
Ursery, ___ U.S. at ____, 116 S.Ct. at 2147. The Ursery Court stated federal courts misread Halper, Austin and Kurth Ranch when they departed from the well-established rule that “civil forfeiture [does] not constitute ‘punishment’ for double jeopardy purposes.” Ursery, ___ U.S. at ____ - ____, 116 S.Ct. at 2142-44. “None of those decisions purported to overrule the well-established teaching of Various Items, Emerald Cut Stones, and 89 Firearms.” Id. at ____, 116 S.Ct. at 2144. Ursery settles the issue of whether a civil forfeiture is “punishment” for purposes of federal double jeopardy. It is not. Ursery is dispositive of the federal double jeopardy issue.
Catlett attempts to distinguish Ursery as a proceeds case, but it is not. In Ursery, the Supreme Court consolidated cases which dealt with civil forfeiture of both property as proceeds and property used to facilitate illegal drug processing and distribution, and held broadly “[t]hese civil forfeitures (and civil forfeitures generally), we hold, do not constitute ‘punishment’ for purposes of the Double Jeopardy Clause.” Ursery, ___ U.S. at ____ - ____, 116 S.Ct. at 2138-39.
The Court of Appeals here relied upon our decision in Clark, which was, in turn, based on Austin, to find civil forfeiture amounted to “punishment” for purposes of
Our decision on the
B. Catlett‘s Prior Civil Forfeiture Was Not Punishment for Purposes of
In analyzing Washington‘s constitutional double jeopardy provision,
Catlett argues for a protective double jeopardy standard under
The more salient question, however, is how we define “punishment” for purposes of
In Cole, we held that double jeopardy did not attach where forfeiture of “proceeds” occurred prior to criminal convictions because forfeiture of the proceeds of an illegal drug transaction is not punitive. See Cole, 128 Wash.2d at 279, 906 P.2d 925. The defendants in Cole claimed the forfeitures of their property followed by their criminal convictions amount to multiple punishments for the same offense, and that their criminal convictions, having been imposed after jeopardy had attached with the civil forfeitures, are prohibited by the double jeopardy clause. Likewise, Catlett asserts the double jeopardy clause bars a related criminal proceeding following civil forfeiture of her car. Yet, in Cole, we noted the threshold inquiry as follows, “[i]n analyzing these claims, we must decide if the civil forfeitures that occurred amounted to constitutional punishments. If they were not punishments, the subsequent convictions ... do not implicate double jeopardy concerns.” Cole, 128 Wash.2d at 274, 906 P.2d 925.4 See also State v. Frodert, 84 Wash.App. 20, 25-26 and n. 3, 924 P.2d 933 (1996) (where the court concluded the threshold requirement of multiple punishments was lacking, other prongs of double jeopardy analysis (i.e., “same offense“) were not addressed). Thus, the significant initial question we must address is whether civil forfeiture
Catlett asserts prior case law conclusively establishes
Citing Clark, Catlett also contends that civil forfeiture has at least a partially punitive purpose, a deterrent purpose, and therefore the statute is punitive for double jeopardy purposes under
The analysis in Clark of what is “punishment” for double jeopardy purposes is infected by the confusion over double jeopardy and civil forfeiture engendered by the pre-Ursery federal cases. Indeed, Ursery rejected the analysis set forth in Clark. The fact that the basis for the civil forfeiture may be criminal activity does not render the forfeiture proceeding either criminal or a resulting forfeiture punishment for double jeopardy purposes. The Ursery court held that such linkage was insufficient to render the statute punitive, noting “Congress may impose both a criminal and a civil sanction in respect to the same act or omission.” Id. at ____, 116 S.Ct. at 2149. In Ursery, the Supreme Court applied the two-part inquiry contained in 89 Firearms6: (1) Did Congress intend the forfeiture statute to be criminal or civil? (2) Are the proceedings so punitive as to persuade the Court that the forfeiture proceedings may not be viewed as
Historically, we too have adopted an analogous two-part test for defining “punishment” for double jeopardy purposes. See Beckett v. Department of Social and Health Servs., 87 Wash.2d 184, 188-90, 550 P.2d 529 (1976), overruled on other grounds, Matter of McLaughlin, 100 Wash.2d 832, 676 P.2d 444 (1984); O‘Day v. King County, 109 Wash.2d 796, 817-18, 749 P.2d 142 (1988); In the Matter of the Personal Restraint of Young, 122 Wash.2d 1, 18-19, 857 P.2d 989 (1993). We have articulated the test as follows:
The categorization of a particular statute as civil or criminal is largely a matter of statutory construction. Allen v. Illinois, 478 U.S. 364, 368, 106 S.Ct. 2988 [2991], 92 L.Ed.2d 296 (1986); United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636 [2641], 65 L.Ed.2d 742 (1980). The Supreme Court has adopted a 2-part analysis:
First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.
(Citations omitted.) Ward, 448 U.S. at 248-49 [100 S.Ct. at 2641-42]. Thus, we look first to the language of the Statute [sic] and the legislative history, then turn to an analysis of the purpose and effect of the statutory scheme.
Young, 122 Wash.2d at 18-19, 857 P.2d 989. The Clark court neglected to analyze
We recently engaged in a more comprehensive analysis of Halper, in State v. McClendon, 131 Wash.2d 853, 935 P.2d 1334 (1997), holding that the issuance of probationary drivers licenses is not punishment for double jeopardy purposes. Therein, this Court noted “[p]robationary licenses may carry with them the ‘sting’ of punishment, but that does not necessarily characterize them as ‘punishment’ for double jeopardy purposes.” 135 Wash.2d at 868, 935 P.2d 1334. Citing Halper, we stated “[t]he issuance of probationary licenses is punishment only if it can be characterized as serving solely retributive or deterrent purposes. If their issuance may fairly be characterized as remedial and bears a rational relation to the government‘s remedial purpose, then it is not punishment for double jeopardy purposes.” Id. at 867, 935 P.2d 1334.
For purposes of determining whether a statute is remedial or punitive under
Regarding the first inquiry, the Ursery court noted in rem proceedings targeting the property rather than the owner have traditionally been civil proceedings utilizing distinctly civil procedural mechanisms, indicating Congress‘s intent that the proceedings be civil in nature. Ursery, ___ U.S. at ____ - ___, 116 S.Ct. at 2147-48. Similarly, the plain language of
With respect to the second inquiry, the United States Supreme Court required the “clearest proof” that the forfeiture proceedings are so punitive in form and effect as to render them criminal despite Congress‘s intent to the contrary, Id. at ____, 116 S.Ct. at 2148, and held this burden was not met where a forfeiture statute “while perhaps having certain punitive aspects, serve[s] important nonpunitive goals[,]” such as encouraging property owners to take care in managing their property and ensuring they will not permit that property to be used for illegal
[T]he determinative factors for resolving a double jeopardy claim are whether [the sanction] has a rational connection to some purpose other than retribution or deterrence, and whether the sanction appears excessive in relation to the alternative purpose.
O‘Day v. King Cy., 109 Wash.2d 796, 817, 749 P.2d 142 (1988) (citing Mendoza-Martinez, 372 U.S. at 168-69 [83 S.Ct. at 567-68]). Absent any indication that a criminal purpose was intended, or actually served by the statute, the stated civil goals of the Legislature are controlling. See Mendoza-Martinez, 372 U.S. at 168-69 [83 S.Ct. at 567-68].
Young, 122 Wash.2d at 23, 857 P.2d 989. Thus, if
The Ursery court noted many considerations support its conclusion that civil forfeiture is not punitive: the long history of in rem forfeiture as civil proceedings; the lack of scienter needed under the statute in question as property may be forfeited without showing a connection to a particular person; and the “deterrent” purpose of the statute serving civil as well as criminal goals. See Ursery, ___ U.S. at. ____, 116 S.Ct. at 2149. Likewise,
Catlett has provided no viable reason why we should declare erroneous the legislative determination that
CONCLUSION
Catlett‘s case has been overtaken by events. The case law that won the day for
DURHAM, C.J., and DOLLIVER, SMITH and GUY, JJ., concur.
SANDERS, Justice, dissenting.
Has “Catlett‘s case ... been overtaken by events” (Majority at 706) or has the constitution been overtaken by the majority?
I find the latter more probable since
The question then is whether either constitution bars a subsequent criminal prosecution arising from the same facts which previously prompted the state to seize and forfeit a criminal defendant‘s property.1 The trial court and the Court of Appeals concluded the double jeopardy clause of both the federal and state constitutions bars such a criminal prosecution. I agree.
I. Double Jeopardy Clause of the United States Constitution
[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb....
The clause prohibits “‘successive punishments’ “for the same crime. United States v. Ursery, ___ U.S. ____, ____, 116 S.Ct. 2135, 2139, 135 L.Ed.2d 549 (1996) (quoting United States v. Dixon, 509 U.S. 688, 694, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993)). The issue is simply whether forfeiture under
Whether a state sanction is punishment is a question of statutory interpretation. Kansas v. Hendricks, ___ U.S. ____, ____, 117 S.Ct. 2072, 2081, 138 L.Ed.2d 501 (1997) (whether sanction is punishment for double jeopardy “‘is first of all a question of statutory construction‘“) (quoting Allen v. Illinois, 478 U.S. 364, 368, 106 S.Ct. 2988, 2991, 92 L.Ed.2d 296 (1986)); In re Young, 122 Wash.2d 1, 18, 857 P.2d 989 (1993) (whether statute punishes for double jeopardy “is largely a matter of statutory construction.“); Beckett v. Department of Soc. & Health Servs., 87 Wash.2d 184, 188, 550 P.2d 529 (1976), overruled on other grounds by Dunner v. McLaughlin, 100 Wash.2d 832, 843, 676 P.2d 444 (1984). The statutory issue focuses on a variety of factors including the nature of statutory sanction, the statute‘s place in the overall regulatory scheme, the legislative intent and whether the statute‘s sanction has historically been viewed as punishment. In re Young, 122 Wash.2d 1, 857 P.2d 989 (1993).
As candidly acknowledged by the majority, this court has historically held the
That Ursery controls is clearly correct; however, that Ursery strips Catlett of her
The majority characterizes Ursery as positing a two-prong test in such situations:
(1) Did Congress intend the forfeiture statute to be criminal or civil? [And, if civil,]
(2) Are the proceedings so punitive as to persuade the Court that the forfeiture proceeding may not be viewed as civil in nature despite congressional intent?
Majority at 704-05. The second prong of the test is employed only if we first determine if the legislative intent is “civil“; for if it is “criminal” the analysis proceeds no further because jeopardy is established.
A. Criminal Legislative Intent
(a) The following are subject to seizure and forfeiture and no property right exists in them:
....
(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, in any manner to facilitate the sale, delivery, or receipt of [illegal drugs]....
Of course this statute is a state statute, not a federal one. Therefore we must independently determine legislative, not congressional, intent. State sovereignty requires no less. Cf. Boeing Aircraft Co. v. Reconstruction Fin. Corp., 25 Wash.2d 652, 657, 171 P.2d 838, 168 A.L.R. 539 (1946) (“The American system of government is dual in nature, containing Federal and state sovereignties, each supreme within its appropriate sphere....“).
Ursery construed two federal statutes,
Application of Ursery‘s first prong is simple. We have previously held
Clark, 124 Wash.2d 90, 875 P.2d 613, expressly held our state Legislature intended this particular statute to be punitive and unanimously concluded forfeiture under this statute is “punishment.” Clark, 124 Wash.2d at 101, 875 P.2d 613 (“We therefore conclude the forfeitures at issue here are ‘punishment’ for purposes of federal double jeopardy analysis.“).
The common denominator of the three separate opinions in State v. Cole, 128 Wash.2d 262, 906 P.2d 925 (1995) was to the extent property was forfeited under
Deeter and Clark were both unanimous decisions, both are still good law, and both held the statute in question is punishment, as did Cole. These cases control and are dispositive. Except for Clark (as per this majority opinion) they have not been overruled. As Catlett‘s car is not the proceeds of crime, seizing it because she sold crack cocaine
Not only have our cases substantively analyzed the statute as punishment but they have facially labeled it “quasi criminal.” City of Lynnwood v. $128 Cash, 61 Wash.App. 505, 513, 810 P.2d 1377 (1991) (forfeitures under
I posit state authority which has determined the subject state forfeiture statute is punishment and “quasi criminal” is dispositive under the Ursery test.
If this were not enough, however, there are several other independent factors which favor this conclusion even beyond binding precedent.
Young directs consideration of “‘whether the behavior to which [the sanction] applies is already a crime....‘” 122 Wash.2d at 21, 857 P.2d 989 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963)). Austin v. United States, 509 U.S. 602, 620, 113 S.Ct. 2801, 2811, 125 L.Ed.2d 488 (1993) similarly held the sanction is punishment if “tie[d] ... directly to the commission of drug offenses.” Deeter holds the purpose of this statute “is to penalize individuals who participate in the illegal transportation of controlled substances.” Deeter, 106 Wash.2d at 378, 721 P.2d 519.
B. Civil Proceedings Punitive in Substance
Were we to mistakenly conclude in disregard of controlling precedent the subject forfeiture provision was legislatively labeled “civil” (which it isn‘t), Ursery further directs our gaze behind that label to substance. As the majority says, we must ask, “Are the proceedings so punitive as to persuade the Court that the forfeiture proceedings may not be viewed as civil in nature despite congressional [legislative] intent?” Majority at 704-05.
First we must consider what purposes are really served by seizing someone‘s car for committing a drug violation. See United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d 487 (1989) (“[T]he determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the
Wolfish, 441 U.S. 520, 539 n. 20, 99 S.Ct. 1861, 1874 n. 20, 60 L.Ed.2d 447 (1979) (“Retribution and deterrence are not legitimate nonpunitive governmental objectives.“).
The history of forfeitures in Washington also demonstrates forfeitures in our State have traditionally been for punishment. Young, 122 Wash.2d at 18, 857 P.2d 989; Ursery, ___ U.S. at ____, 116 S.Ct. at 2149.
Under English law forfeiture of one‘s property for committing a crime was always deemed an added punishment, usually reserved for egregious crimes because it reached to the well-being of the convict‘s family. See 3 William Blackstone, Commentaries on the Laws of England 267 (St. George Tucker ed., 1969) (1803) (“Forfeiture is a punishment” added for offenses such as high treason.). The Washington Territory statutorily incorporated English common law into territorial law in 1881 and upon statehood territorial law became law of the State. Code of 1881, § 1;
At the time of statehood, forfeitures were also considered punishment by the United States Supreme Court for double jeopardy purposes. For example, in 1886 on the eve of statehood the Supreme Court held forfeitures civil in form may be criminal in effect. Boyd v. United States, 116 U.S. 616, 633, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886) (“[P]roceedings instituted for the purpose of declaring the forfeiture of a man‘s property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal” and thus give rise to these constitutional safeguards.). See also United States v. Chouteau, 102 U.S. 603, 611, 12 Otto 603, 26 L.Ed. 246 (1880) (forfeiture of bond precludes subsequent criminal action). But historically our State eschewed forfeiture of property for criminal acts. A Washington statute, enacted in 1909, provides, “A conviction of crime shall not work a forfeiture of any property, real or personal, or of any right or interest therein.”
In stark contrast to our state experience, Ursery relied on the unique and long federal experience with forfeitures in admiralty (seizing pirate ships) and customs (seizing illegal contraband). But our state forfeiture statute was borne of different intent. When our Legislature first enacted this forfeiture law it intended it to be criminal and punitive. State v. Clark, 124 Wash.2d 90, 99, 875 P.2d 613 (1994) (“The Legislature ... ha[s] declared the Washington civil [sic] forfeiture statute to be at least partially punitive.“).
To support its claim that there are remedial aspects, the majority asserts “[t]his purpose is confirmed by the distributive scheme for funds obtained by forfeiture. See, e.g.,
The majority also states “[t]he statute is designed to reimburse government for its prosecutorial costs.” Majority at 706. This claim was rejected outright in Clark, 124 Wash.2d at 98, 875 P.2d 6139 (citing Austin v. United States, 509 U.S. 602, 622 n. 14, 113 S.Ct. 2801, 2812 n. 14, 125 L.Ed.2d 488 (1993)) (“The value of the conveyances and real property forfeitable ... can vary so dramatically that any relationship between the Government‘s actual costs and the amount of the sanction is merely coincidental.“). Actually the majority proves the applicability of the double jeopardy clause by forging yet another link between criminal conduct and criminal forfeiture.
Judged by the Ursery standard this forfeiture raises a double jeopardy bar to a subsequent criminal prosecution because (1) the statute is criminal or at least quasi criminal, not civil, and (2) even if we were to wrongly label the statute civil, the proceedings thereunder are nevertheless so punitive in effect the court must view them substantively criminal in any event.
Moreover, I would independently reach the same conclusion under article I, section 9 of the Washington Constitution, for the reasons set forth below.
II. Double Jeopardy Under Washington Constitution
Rights of Accused Persons. No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense.
Citing cases which generally hold the Washington double jeopardy clause means the same as its federal counterpart,10 the majority posits if the United States Supreme Court radically changes what was previously thought to be the meaning of the Fifth Amendment, ipse dixit, the meaning of the state clause must change along with it (see supra note 3, at 708). Thus, as per the majority, the federal tail wags the state constitutional dog. I disagree.
Washington Constitution article I, section 32 mandates:
A frequent recurrence to fundamental principles is essential to the security of
However, there is nothing fundamental about a standard of constitutional interpretation which varies the “fundamental principles” of our state constitution by each unanticipated United States Supreme Court decision, even those rendered a century or more after our state constitution was ratified by the people in 1889. To the contrary, the principles of our constitution were not only meant for their time but for all time, absent amendment to the organic document in the manner prescribed.
The constitution must be construed in the sense in which the framers understood it in 1889. In other words, its meaning was fixed at the time it was adopted.
The rule is well stated in 11 Am.Jur. 674, Constitutional Law, § 61, as follows:
“The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. A constitutional clause must be construed reasonably to carry out the intention of the framers, which gives rise to the corollary that it should not be construed so as to defeat the obvious intent if another construction equally in accordance with the words and sense may be adopted which will enforce and carry out the intent. The intent must be gathered from both the letter and spirit of the document.
“It has been very appropriately stated that the polestar in the construction of Constitutions is the intention of the makers and adopters.”
A constitutional provision should receive a consistent and uniform interpretation. Even though the circumstances may have changed to make a different rule seem more desirable, the constitution should not be taken to mean one thing at one time and another at another time. State ex rel. Lemon v. Langlie, 45 Wash.2d 82, 273 P.2d 464 (1954).
Notwithstanding sound constitutional doctrine supported by ample specific authority that forfeiture under this statute invokes jeopardy,11 the majority facially rejects the established rule that the meaning of our state constitution was fixed at the time it was adopted and must be construed in the sense in which the ratifiers understood it. Simply put, the majority supplants an independent analysis of the true meaning of our state constitution by the majority‘s characterization of Ursery, a recent case decided by the United States Supreme Court 107 years after the adoption of article I, section 9 (Majority at 704-07) and which, quite obviously, had absolutely no bearing whatsoever on the original understanding of the citizens of this State who popularly ratified our constitution in 1889.
The implication of this approach is catastrophic in theory and effect. In theory it contradicts the early constitutional history of the United States which leaves “no doubt that state bills of rights were never intended to be dependent on or interpreted in light of the United States Bill of Rights.” Utter, supra, at 496. It abrogates the very essence of constitutional government because it denies the nature of our state constitution as a covenant between the people and their government whereby the people consent to be governed but only cede the power of governance in a limited fashion upon specific terms and conditions, punctuated by even further exceptions delineated in our State Declaration of Rights, of which the double jeopardy clause is an integral part.
Not only reason but precedent has rejected this errant approach. We refused to “reject... established jurisprudence and follow, blindly, the lead of the United States Supreme Court” in State v. Jackson, 102 Wash.2d 432, 438, 688 P.2d 136 (1984) where the Supreme Court limited Fourth Amendment guarantees below the prior federal standard we had applied by analogy to constitution article I, section 7:
Prior reliance on federal precedent and federal constitutional provisions do not preclude us from taking a more expansive view of
Const. art. 1, § 7 , where the United States Supreme Court determines to further limit federal guaranties in a manner inconsistent with our prior pronouncements.
State v. Jackson, 102 Wash.2d at 439, 688 P.2d 136 (citing cases). Cf. Parrish v. West Coast Hotel Co., 185 Wash. 581, 55 P.2d 1083 (1936), aff‘d, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937) (State Supreme Court rejects United States Supreme Court precedent to sustain minimum wage law against constitutional challenge.).
When interpreting the state constitutional suspension clause (“The privilege of the writ of habeas corpus shall not be suspended, unless in case of rebellion or invasion the public safety requires it,”
Thus, while interpretation of the parallel federal constitutional provisions may provide guidance in interpreting our own, we must ultimately rely on the hierarchy of values and principles that have been developed under the Washington Constitution.
Id. at 749-50, 770 P.2d 670. Additionally, this court interprets
the state constitution in the only manner which appears to us to be reasonable in the light of the historical background which its framers and the people who adopted it necessarily must have had in mind at that time.
Langlie, 45 Wash.2d at 109, 273 P.2d 464.
By tying the state constitutional provision to the Supreme Court‘s various constructions of the similar federal clause, this majority violates the “cardinal rule” of constitutional construction:
“A cardinal rule in dealing with constitutions is that they should receive a consistent and uniform interpretation, so that they shall not be taken to mean one thing at one time and another thing at another time, even though the circumstances may have so changed....”
State ex rel. Munro v. Todd, 69 Wash.2d 209, 214, 417 P.2d 955, 426 P.2d 978 (1966) (quoting State ex rel. Banker v. Clausen, 142 Wash. 450, 454, 253 P. 805 (1927)). This rule precludes this court from doing exactly what the majority has done, construing a statute to have one constitutional consequence on one day, but another constitutional consequence on another:
“In accordance with this principle [the “cardinal rule” as stated above], a court should not allow the facts of the particular case to influence its decision on a question of constitutional law, nor should a statute be construed as constitutional in some cases and unconstitutional in others involving like circumstances and conditions. Furthermore, constitutions do not change with the varying tides of public opinion and desire. The will of the people therein recorded is the same inflexible law until changed by their own deliberative action; and therefore the courts should never allow a change in public sentiment to influence them in giving a construction to a written constitution not warranted by the intention of its founders.”
State ex rel. Lemon v. Langlie, 45 Wash.2d 82, 110, 273 P.2d 464 (1954) (quoting Clausen, 142 Wash. at 454, 253 P. 805, which quoted with approval 6 R.C.L. 46.).
When this state‘s analysis is tied to the whims of the federal courts, state law may have to be modified frequently to adjust to later circuit splits on the issue and the United States Supreme Court‘s retraction of its earlier decisions. Judicial efficiency will be lost because every time the Supreme Court changes its mind, this court will be called to revisit the issue. Finality is also sacrificed because state decisions tied to federal law may be open to reversal by the Supreme Court. Most importantly, independent state constitutional analysis is lost somewhere in the ever-shifting shadow of the federal courts which are no less political and perhaps more so than our own state courts.
State v. Gocken, 127 Wash.2d 95, 110-11, 896 P.2d 1267 (1995) (Madsen, J., concurring in part, dissenting in part) (citations omitted). As Justice Madsen correctly perceived, our State followed an independent double jeopardy analysis pursuant to our state constitution long before the United States Supreme Court even purported to apply the federal double jeopardy analysis to states through the Fourteenth Amendment in 1969. See Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969).
Justice Johnson‘s dissenting opinion in Gocken, which complemented Justice Madsen‘s concurrence, cites with favor State v. Jackson, 102 Wash.2d 432, 688 P.2d 136 (1984) for the proposition that “this court refused to follow the shifting sands of federal jurisprudence when interpreting
has developed parallel to Fifth Amendment jurisprudence, not in reliance on it. That our interpretation has been the same as or similar to Federal Fifth Amendment jurisprudence is a result of this court‘s reliance on the common law and on the history of double jeopardy in Anglo-American criminal law.... Therefore, unless we now intentionally decide to proceed in lockstep with federal double jeopardy analysis [recent federal cases] [are] of no consequence to this court‘s interpretation of article I, section 9.
Gocken, 127 Wash.2d at 114, 896 P.2d 1267 (Johnson, J., dissenting) (footnote omitted).
Allowing federal precedent to rewrite our state constitution invites “the Court to choose the lowest common denominator of individual rights.” Utter, supra, at 496 (citing Project Report, Toward an Activist Role for State Bills of Rights, 8 Harv. C.R.-C.L. L.Rev. 271, 293-96 (1973)). But as Justice Utter stated, state constitutions were originally intended as the primary device to protect individual rights, whereas the United States Bill of Rights was intended as a secondary layer. Utter, supra. The majority stands this rule designed to enhance, not compromise, civil liberties on its head.
Even where the state and federal constitutions use the identical language, “the intent could be quite different,” id. at 498, and “lawyers and judges should avoid the easy and well-worn path of searching for answers in federal cases,” id. at 505.
Ordinary rules of textual and constitutional interpretation, as well as the logic of federalism, require that meaning be given to the differences in language between the Washington and the United States Constitutions, and that even identically worded provisions be interpreted independently unless a very good historical justification for assuming that the framers intended an identical meaning can be found.
Utter, supra, at 515-16 (citing Young v. Konz, 91 Wash.2d 532, 539, 588 P.2d 1360, 1364 (1979) (holding that federal precedent regarding due process was not controlling with regard to state due process, even though the state and federal due process clauses were identically worded)). Compare Commonwealth v. Peterfield, 415 Pa.Super. 313, 609 A.2d 540, 551-52 (1992) (Elliott, J., dissenting) (“Even though a state constitutional provision has been interpreted as co-extensive with a federal constitutional provision, `[w]hen confronted with a change in federal precedent a state court need not,
Yet the majority sets forth no historical justification whatsoever for claiming our state constitutional provision means something different in 1997 than it did in 1994 and 1995, much less in 1889 when it was popularly ratified. The majority forgets the admonition of Chief Justice John Marshall: “[W]e must never forget, that it is a constitution we are expounding.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579 (1819).
Even were we to assume the 1889 ratifying public understood the article I, section 9 double jeopardy clause to mean exactly as the federal clause, it must have understood the federal clause in light of the United States Supreme Court precedent of that day—not 107 years later. We credit these men with brilliance but not precognition.
In point of fact there was reason to believe federal jurisprudence of that time considered similar forfeitures punishment for federal double jeopardy purposes. See, e.g., Chouteau, 102 U.S. at 611 and Boyd v. United States, 116 U.S. at 633-34, 6 S.Ct. at 534 (“We are also clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture of a man‘s property by reason of offences committed by him, though they may be civil in form, are in their nature criminal.“) (see discussion ante at 711).13
I would reaffirm the fundamental principle that our constitution means the same now as it did in 1889, and neither this court, nor much less the federal judiciary, is vested with any authority whatsoever to change it. Necessarily embraced within this principle is the realization that a change in the manner in which federal courts construe the federal constitution neither is, nor should be, any justification whatsoever to overrule binding state precedent construing our state constitution. If seizure of a car used to transport drugs under
If the majority does worry about a “judicial maelstrom,” perhaps it best seek refuge under the shelter provided by the principles of our constitution rather than striking out to lose its way in the dark and stormy night.
Mary Catlett was “punished” when the State seized her car for the alleged criminal drug violation. Double jeopardy bars a subsequent punishment, or even proceeding, for the same underlying act. The Court of Appeals was clearly correct. I would affirm.
JOHNSON, MADSEN and ALEXANDER, JJ., concur.
Notes
Id. at 248-49, 100 S.Ct. at 2641 (quoting Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435 (1960)). The Court applied the Ward analysis to forfeiture proceedings in 89 Firearms. Washington law has always allowed the return of proceeds of a crime. See State v. Cramer, 167 Wash. 159, 163, 8 P.2d 1004 (1932) (“Rem. Comp. Stat. § 2288 [...] provides: `A conviction of crime shall not work a forfeiture of any property, real or personal, or of any right or interest therein.’ Certainly it would not be contended that to take stolen goods from a convicted thief and return them to the rightful owner, would be a violation of § 2288, supra.“). Washington law has permitted confiscation of property which is per se unlawful. See, e.g., Code of 1881, § 968(2) (law enforcement may seize illegal gaming apparatus intended for illegal gaming).First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention. In regard to this second inquiry, we have noted that “only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground.”