State v. McClendonState v. McClendon
The parties and a judge of the Whitman County Superior Court jointly seek review of a Whitman County District Court decision granting the respondents’ motion to dismiss charges of driving while under the influence of intoxicating liquor in violation of
QUESTION PRESENTED
The sole question presented in this case is whether it is unconstitutional double jeopardy for the State of Washington to prosecute respondents for violation of
STATEMENT OF FACTS
The cases against all eight respondents were dismissed by the Whitman County District Court, the Honorable David Frazier, on May 1, 1995. On May 9, 1995 the State of Washington appealed the cases to the Whitman County Superior Court. The judge, the Honorable Wallis W. Friel, and all parties asked this court for direct review. We granted review of the consolidated cases on October 5, 1995.
The eight respondents were initially charged in the Whitman County District Court by the Whitman County Prosecuting Attorney for violations of
[Respondents] Doy L. McClendon, Gil Crosby, Sally Parrish, Frank Sayre, Richard Triquart, Stephen Stark, Brian Hayton and Mark Booth [were] arrested for suspicion of violating
RCW 46.61.502 on 12/9/94, 11/19/94, 12/2/94, 1/31/95, 12/18/94, 2/3/95, 2/9/95 and 3/5/95 [respectively]. Each defendant submitted to a BAC Datamaster Verifier test in compliance withRCW 46.20.308 and all relevant Washington Administrative Code provisions. Each defendant registered a breath test result of .10 or higher. All defendants [were] issued temporary licenses and advised of their right to an administrative hearing pursuant to [RCW] 46.20.365 . And, all defendants were issued probationary licenses as a result of their performances on the breath test.
Subsequent to the issuance of the probationary licenses the Whitman County Prosecutor‘s
The Findings of Fact and Conclusions of Law entered by the District Court on May 1, 1995 stated:
FINDINGS OF FACT
1. The Defendant was arrested on suspicion of DUI. He/She agreed to take a breath test which registered .10 or above. Based on these facts, the arresting officer provided to the Washington State Department of Licensing a Report of Breath/ Blood Test. Pursuant to
RCW 46.20.365 the arresting officer issued to the Defendant a temporary license and the Washington State Department of Licensing initiated administrative action which resulted in the imposition of a five year requirement that Defendant drive on a probationary license.2. Based on the same facts/incident, the Whitman County Prosecuting Attorney‘s Office issued a criminal citation charging the Defendant with the crime of DUI pursuant to
RCW 46.61.502 .
BASED ON THESE FINDINGS, the court concludes:
CONCLUSIONS OF LAW
1. The State of Washington, based upon the same facts, has initiated two separate and distinct proceedings against the Defendant.
2. The criminal proceeding seeks to punish the Defendant.
3. The civil proceeding brought by the Department of Licensing which seeks imposition of a probationary license also constitutes punishment as that term is considered under double jeopardy analysis pursuant to State v. Calle, 125 Wash.2d 769 [888 P.2d 155] (1995).
THEREFORE, IT IS HEREBY ORDERED:
1. That the criminal charge of DUI filed herein is dismissed with prejudice.
2. Costs are not awarded, but shall abide the outcome of any appeal.
On July 28, 1995, Appellant, Respondents, and the Honorable Wallis W. Friel, Whitman County Superior Court, filed a joint request for direct review by the Supreme Court. We granted review on October 5, 1995. Amicus Curiae, Washington Association of Prosecuting Attorneys, filed a brief in support of Appellant State of Washington on October 26, 1995.
DISCUSSION
WAIVER OF RULES
Rule for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ) 1.1(a) provides for review by the superior court of certain
This Court‘s authority to make rules carries with it the inherent power to waive rules when justice requires it.2 We have previously waived rules to promptly resolve issues relating to enforcement of laws governing driving while under the influence of intoxicating liquor or drugs.3 Whether the double jeopardy clause prohibits the state from prosecuting respondents for driving under the influence of intoxicating liquor after the Department of Licensing issues them probationary licenses is a significant question which deserves prompt resolution and merits waiver of the rules for review by this Court. We therefore waive the rule and accept these cases for direct review.
PROBATIONARY LICENSES AND 1995 LEGISLATIVE CHANGES
Because the Legislature in 1995 repealed or amended statutes relating to probationary licenses after these appeals were filed, we must first determine whether those changes affect this case.4
The Legislature created the new category of “probationary license” in the “1994 Omnibus Drunk Driving Act” (Act), which took effect July 1, 1994.5 Under the Act the Department of Licensing (Department) issued probationary licenses to persons under certain circumstances, including those violating
Under the 1994 Act, former RCW 46.61.5051 provided penalties for a person with a regular driver‘s license who was convicted under
The Legislature in 1995 repealed former RCW 46.61.5051 and former RCW 46.61.5052, effective September 1, 1995.11 It then enacted
One of respondents’ primary arguments is that a probationary license is punishment under double jeopardy analysis because it subjects its holder to enhanced mandatory minimum penalties in the future if that person subsequently violates
A statute is presumed to apply prospectively unless it is remedial in nature or unless the Legislature provides for retroactive application.14 A remedial statute is one which relates to practice, procedures and remedies and is applied retroactively when it does not affect a substantive or vested right.15 “A `right’ is a legal consequence deriving from certain facts, while a remedy is a procedure prescribed by law to enforce a right.”16 There is no legislative indication in the language or history of
DOUBLE JEOPARDY
The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The double jeopardy clause protects against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.21 All parties agree the issue here concerns protection against multiple punishment for the same offense.
The State contends issuance of probationary licenses was a permissible exercise of the State‘s police power, and not “punishment” contemplated under the double jeopardy clause of the Fifth Amendment to the United States Constitution and
Respondents contend a probationary license is punishment under the double jeopardy clause because it serves retributive and deterrent purposes and serves no remedial purpose. Respondents rely principally upon the United States Supreme Court case of United States v. Halper23 and the cases following it to support this argument.
CIVIL SANCTIONS AS “PUNISHMENT”
The Supreme Court first decided when a civil penalty may be considered punishment under the double jeopardy clause in United States v. Halper.24 The Court framed the issue in that case as “whether a civil sanction, in application, may be so divorced from any remedial goal that it constitutes `punishment’ for the purpose of double jeopardy analysis.”25
In Halper, the Supreme Court stated that “a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.”26 Respondents rely upon this language to contend that a probationary license is punishment because it does not “solely” serve a remedial purpose.27 But the Court later in Halper announced its explicit holding, which actually departed significantly from its earlier statement:
We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be
characterized as remedial, but only as a deterrent or retribution.[28]
Other appellate courts have relied upon and distinguished the explicit holding in Halper from the earlier quoted statement from that same case29 Under Halper, a probationary license would be considered punishment under double jeopardy analysis only if it “may not fairly be characterized as remedial, but only as a deterrent or retribution.”30
Respondents claim a probationary license is retributive and serves as a deterrent because it potentially enhances mandatory minimum penalties for the holder who is convicted in the future of violating
The Supreme Court in Halper further explained and narrowed application of its decision by stating, “What we announce now is a rule for the rare case, the case such as the one before us, where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused.”33
This case is neither rare nor exceptional. “Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage.”34 This is not a case where a “fixed penalty provision” subjected respondents to a “sanction over whelmingly disproportionate” to the damage they caused.35 A probationary license is not a “sanction overwhelmingly disproportionate” to the danger a drunk driver represents on the public highways. The State correctly points out that a probationary license alone does not limit a person‘s privilege to drive, does not inevitably subject a person to imprisonment or monetary penalties, and does not cause a person to forfeit property.36
Respondents interpret the Halper decision too broadly. Halper applies to the “rare case” where a person is subject to a civil penalty “overwhelmingly disproportionate” to the damages that person caused. That circumstance is not present in this case. We conclude the Halper decision does not apply to the facts of this case.
The Court in Kurth Ranch held Montana‘s tax was punishment, but did not rely upon Halper in reaching its decision. Recognizing that tax statutes serve a different purpose than civil penalties, the Court agreed Halper‘s method of determining whether the penalty was remedial or punitive “does not work in the case of a tax statute.”39 In reaching its decision, the Court looked at the particular facts and circumstances surrounding the Montana tax and compared it to similar taxes that were not considered “punishment” for double jeopardy purposes. In doing so, the Court noted that “neither a high rate of taxation nor an obvious deterrent purpose automatically marks this tax a form of punishment.”40 Noting the high but valid taxes on cigarettes and alcohol, which may also have a deterrent effect on its users, the Court further stated “[t]hus, while a high tax rate and deterrent purpose lend support to the characterization of the drug tax as punishment, these features ... do not necessarily render the tax punitive.”41 The Court distinguished the Montana drug tax from other similar taxes to conclude that the tax was “punishment” for double jeopardy purposes.
Any deterrent effect from issuance of probationary licenses in this case does not “automatically” identify it as a form of punishment nor necessarily make it punitive. Respondents argue probationary licenses are a form of punishment. But “whether a sanction constitutes punishment” is not determined from the defendant‘s perspective because “for the defendant even remedial sanctions carry the sting of punishment.”42
Although the Court in Kurth Ranch did not rely upon Halper in reaching its decision, it did acknowledge Halper‘s holding that “a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not be fairly characterized as remedial, but only as a deterrent or retribution.”43
Respondents rely not only upon expansive language in Halper, but also cite Austin v. United States44 and United States v. $405,089.23 in U.S. Currency45 to support their argument that a sanction not “solely remedial” is punishment. In Austin, decided before Kurth Ranch, the Supreme Court held that the Excessive Fines Clause applied to forfeiture procedures. As respondents argue in this case, the Court in Austin pointed to the “solely remedial” language in Halper in reaching its decision.46 But Austin involved the Excessive Fines Clause, and did not purport
Under Halper, the purposes actually served by the sanction at issue must be assessed in determining whether a civil sanction is “punishment” under double jeopardy analysis.47 The issuance of probationary licenses is punishment only if it can be characterized as serving solely retributive or deterrent purposes.48 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.49
We conclude that issuance of probationary licenses in this case was remedial, comporting with the principles in Halper. It is true that a probationary license subjects its holder to enhanced minimum mandatory penalties, but that happens only if the person subsequently violates
Amicus Curiae, Washington Association of Prosecuting Attorneys, referring to Kurth Ranch, suggests this Court should look to the historical background of administrative licensing proceedings to determine whether issuance of probationary licenses in this state constitutes “punishment.” The State correctly points out that administrative licensing proceedings in this state have long been considered remedial, and not punitive. Respondents also acknowledge that license revocation or suspension is “clearly remedial, at least in part” because it removes dangerous drivers from the road to the benefit of the public.52 Revocation of a driver‘s license is not “punishment” under the double jeopardy clause, but is a permissive exercise of the State‘s police power to protect users of the public higways.53 Under Halper and the cases following it, a number of state appellate courts have held that revocation or suspension of driver‘s licenses is not “punishment” for double jeopardy purposes.54
Issuance of probationary licenses is a procedure far short of the more drastic ones of suspension or revocation of licenses. It ultimately protects users of public highways, and thus, under Halper, is fairly characterized as remedial and not solely retributive or deterrent.
We conclude that administrative issuance of probationary licenses is not punishment under the double jeopardy clause. We also conclude that
DOLLIVER, J., concurs.
TALMADGE, Justice, (concurring).
While I agree with the majority opinion, I do not believe we need to rely on the rather unpredictable course of the United States Supreme Court‘s double jeopardy jurisprudence to reach the conclusion in the majority opinion.1 The present case rises and falls on a single question: is the license action punishment? If it is punishment, jeopardy attaches.
Jurisdictions that have considered the question have overwhelmingly held licensure actions to be remedial, not punishment: Thompson v. State, 896 F.Supp. 220 (D.Me. 1995) (suspension of license under Maine statute was not punishment under double jeopardy clause and did not bar subsequent DUI2 prosecution); State v. Zerkel, 900 P.2d 744 (Alaska App.1995) (revocation of driver‘s license for refusing to submit to blood alcohol test or having test results of .10% or higher is remedial for double jeopardy purposes, even though revocation plays a role in deterrence); Marzolf v. Superior Court, 185 Ariz. 144, 912 P.2d 1373 (1995) (administrative license suspension for excessive blood alcohol content does not constitute punishment under double jeopardy clause); Baldwin v. Department of Motor Vehicles, 35 Cal.App.4th 1630, 42 Cal.Rptr.2d 422 (1995) (mandatory revocation of driver‘s license subsequent to criminal punishment for third DUI conviction did not violate motorist‘s double jeopardy protection against multiple punishments); People v. Olson, 921 P.2d 51 (Colo.App.1996) (prior administrative driver‘s license revocation for failure to submit to breath or blood alcohol test did not constitute punishment for purposes of double jeopardy clause); State v. Hickam, 235 Conn. 614, 668 A.2d 1321 (1995) (90-day administrative license suspension had legitimate remedial purpose of promoting public safety and was rationally related to that purpose, and thus defendant‘s subsequent criminal prosecution was not barred by double jeopardy principles), cert. denied, ___ U.S. ___, 116 S.Ct. 1851, 134 L.Ed.2d 951 (1996); Davidson v. MacKinnon, 656 So.2d 223 (Fla.Dist.Ct.App.) (administrative remedy of suspension of driver‘s license for DUI or other related behavior is primarily for purpose of enhancing safe driving on public highways and does not bar subsequent criminal prosecution for DUI), review denied, 662 So.2d 931 (1995); State v. Murray, 644 So.2d 533 (Fla.Dist.Ct.App.1994) (driver‘s license suspension did not preclude DUI prosecution on double jeopardy grounds); Gomez v. State, 621 So.2d 578 (Fla.Dist.Ct.App.1993) (no
Even if one were to disagree, as the dissent does, with the multitudes of our colleagues nationwide who have held drivers license revocations and suspensions are not punishment for double jeopardy purposes, the probationary status complained of in the present case imposes no immediate sanction whatsoever on the licensee, and cannot possibly be considered punishment.4 Placing a driver on probationary status is less onerous than the revocations and suspensions other jurisdictions hold not to be punishment.5 Accordingly, the challenged action in this case is not punishment.
GUY, J., and DURHAM, C.J., concur.
I concur in the dissent. I do so because I agree with Justice Sanders that the issuance of a probationary driver‘s license, pursuant to former RCW 46.61.5052, has no remedial purpose. Its only purpose, as the dissent observes, is punitive in that it has the effect of increasing the punishment of the probationary licensee on his or her subsequent offense for DUI. Dissenting op. at 1347-49. In essence, the probationary license is treated as a prior DUI conviction whether or not the holder of that license is ultimately convicted of the charge which resulted in the issuance of the probationary license.
I write separately only because I disagree with the view expressed in the dissent that if a sanction is partially remedial and partially punitive, it always violates the Double Jeopardy Clause of the United States Constitution. Dissenting op. at 1348-49. In reaching that conclusion, the dissent relies primarily on United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1902, 104 L.Ed.2d 487 (1989) in which the Court said that “it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.” (Emphasis added).
The Halper case has, however, been undercut somewhat by the recent case of United States v. Ursery, ___ U.S. ___, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). Regarding that case, the Court said that if the language of that case was to be “applied literally, then virtually every sanction would be declared to be a punishment: it is hard to imagine a sanction that has no punitive aspect whatsoever.” Ursery, ___ U.S. at ___ n. 2, 116 S.Ct. at 2146 n. 2. In Ursery, the Court explicitly stated the test that should be employed to determine when a civil sanction is punitive. It said that a sanction is punishment if either (1) it is intended by Congress to be criminal or (2) “`whether the statutory scheme was so punitive either in purpose or effect as to negate’ Congress’ intention to establish a civil remedial mechanism.‘” Ursery, ___ U.S. at ___, 116 S.Ct. at 2142 (quoting United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365, 104 S.Ct. 1099, 1106, 79 L.Ed.2d 361 (1984), quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980)).
It is not difficult to conceive of a statutory scheme in which a requirement that probationary licenses be issued to first time DUI offenders could have a predominantly remedial effect. If, for example, the Legislature had provided that a person with a probationary license could only drive from 9:00 a.m. to 6:00 p.m., the overriding effect of the provision would be remedial because the provision would have the effect of removing the offending driver from the highway during the hours that drinking and driving is most prevalent. Although, arguably, such a restriction on driving is punitive, that aspect of the sanction does not detract from its main thrust, which is remedial.
Under the legislative scheme we have here, however, there is no such remedial effect. The probationary license does not inhibit the licensee‘s privilege to drive in any way and, consequently, it is impossible to conclude that it has any effect other than to enhance punishment. That being the case, double jeopardy protections are triggered.
Moreover, because the issuance of a probationary license under former RCW 46.61.5051 has no remedial effect, the multi-page string citation of authority in the concurrence is largely irrelevant. It is true that administrative revocation or suspension of a driver‘s license may well have a remedial rather than punitive effect, and thus prove to be no bar on double jeopardy grounds to a criminal prosecution. However, this conclusion simply begs the question in this case, which is whether the probationary license at issue is remedial. Unlike a revocation or a suspension, the probationary license here has no effect other than to punish.
MADSEN and JOHNSON, JJ., concur.
The Fifth Amendment‘s prohibition against double jeopardy is absolute: “... [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb....”
If reclassifying allegedly intoxicated drivers to “probationary” status is a form of punishment, the initiation of a criminal proceeding to again punish the same conduct violates the double jeopardy clause and the DUI charge must be dismissed. I agree with the trial court that these defendants have been unconstitutionally placed in jeopardy of punishment twice for the same conduct and would affirm the trial court‘s dismissal. I therefore dissent from the contrary conclusion reached by the majority.
The majority opinion rests upon two propositions: (1) summary license revocation with probationary license substitution is not punishment and (2) a sanction which is only partially punitive does not place one in jeopardy. I disagree, and doubly so.
This probationary license does not alter one‘s privilege to drive but puts the driver in a special class of drivers singled out for enhanced jail time.1 This reclassification is, in itself, punitive because its purpose is to deter future criminal misconduct. This defendant is put in jeopardy twice for the same conduct because (1) his license has been revoked and supplemented with a probationary license and (2) DUI criminal charges have been filed as a result of the same incident.
Is this probationary license punishment?
The majority opines, “[P]robationary licenses serve a remedial purpose because they alert the Department and law enforcement officers to a person‘s probationary status.” Majority at 1341 (emphasis added). Why alert the authorities? Do the authorities simply have inquiring minds or do they need to be “alerted” so they will impose more jail time, next time?
The majority‘s analysis is difficult because any alleged distinction between “remedial” and “punishment” is incoherent; punishment is simply one form of remedy. Another form of remedy might be nonpunitive; however, “remedy” includes both. See Roger Pilon, Criminal Remedies: Restitution, Punishment, or Both?, Ethics 348 (July 1978). I have therefore substituted the alternate generic term “sanction” to include all possible sanctions of a punitive or nonpunitive nature. Double jeopardy applies to punitive sanctions.
When the majority says “[P]robationary licenses serve a remedial purpose” it fails to tell us whether this “remedy” is punitive or otherwise, but apparently assumes “otherwise.” Under this statute the only sanction imposed by the probationary license is to substantially enhance mandatory criminal penalties to be imposed upon the driver‘s second DUI conviction if arrested while driving with a probationary license. The question is therefore whether this sanction—reclassification to potentially heightened
If a probationary license imposed under this particular statute is a sanction of a punitive nature, it must be so recognized for double jeopardy purposes.
When considering the problem, I certainly agree with the majority and concurrence that not all sanctions are punitive while some certainly are.
Nonpunitive sanctions might include, for example, compensatory damages, restitution, and forfeiture of stolen property for return to its rightful owner. Punishment, on the other hand, would certainly include penal incarceration as well as the threat of incarceration to deter future criminal acts.
Reclassifying one‘s license status to “probationary” under this particular statute does not affect the right or scope of the defendant‘s driving privileges; however, it does subject him to mandatory enhanced penalties should he be arrested on a subsequent occasion. The sole purpose of this reclassification is simply to deter the driver from committing another DUI through threat of enhanced punishment. However, deterrence is punishment for double jeopardy purposes. Halper, 490 U.S. at 448, 109 S.Ct. at 1901-02. Substitution of the probationary license for the normal license is punishment in itself without regard to whether there ever is a subsequent DUI arrest, conviction, or enhanced penalty2 because it is a licensing status change for the sake of deterrence.
The concurring opinion cites multiple decisions from other jurisdictions essentially holding license suspensions and limitations are nonpunitive sanctions and, thus, do not constitute punishment for double jeopardy purposes. However, those cases may be generally distinguished because they involve administratively removing a driver from the road, or restricting his right to drive in some fashion, whereas the statute at issue changes the licensing status of the driver simply to threaten an enhanced criminal penalty for any subsequent DUI.3
A few cases hold an administrative suspension of one‘s license to drive punitive for double jeopardy purposes, see, e.g., State v. Ackrouche, 70 Ohio Misc.2d 34, 650 N.E.2d 535 (1995), however, such cases must be distinguished for the same reason.
Any double punishment violates double jeopardy
The majority opines that unless a sanction is solely for punishment, the sanction is outside the protection of the double jeopardy clause, citing Halper, 490 U.S. at 448, 109 S.Ct. at 1901-02. However this conclusion is not supported by the literal language of Halper, is inconsistent with other, and subsequent, United States and Washington Supreme
Halper states:
We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence.... [I]t follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.... We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.
Halper, 490 U.S. at 448-49, 109 S.Ct. at 1902. (Emphasis added.) Halper holds a sanction not “solely remedial” is punishment for double jeopardy purposes. See Carlos F. Ramirez, Administrative License Suspensions, Criminal Prosecution, and the Double Jeopardy Clause, 23 Fordham Urb. L.J. 923, 927-38 (1996). Halper, read as a whole, demonstrates the Supreme Court is faithful to the spirit and meaning of the double jeopardy clause, which prevents double punishment even though one or both of those punishments may also be accompanied by other nonpunitive sanctions or goals. But the construction placed on this language by the majority would have the Supreme Court contradicting itself within the same paragraph. Further, the majority‘s reading contradicts the plain meaning of the Halper text by ignoring the words “to the extent,” which support the proposition that unless the sanction is “solely to serve a remedial purpose” it is to that “extent” not remedial but punitive.
The majority‘s claim that one may be subject to multiple punishments without violating the double jeopardy clause provided only there be at least some nonpunitive sanction imposed in addition to the punishment or, in the alternative, that the punishment might also promote a nonpunitive objective, is double-talk. The Fifth Amendment forbids multiple punishments without regard to motive and without regard to the additional imposition of nonpunitive sanctions.
Subsequent Supreme Court cases of Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994); Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); and United States v. Ursery, ___ U.S. ___, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) deal with the same or related topics and are consistent with Halper.
Civil forfeiture cases distinguished
Austin and Ursery were both civil forfeiture4 cases arising from the Eighth Amendment prohibition against excessive fines. Thus, they arise in a different factual context and are analyzed under a completely separate and distinct constitutional clause. Nevertheless, each purports to discuss “punishment” for the purpose of the Eighth Amendment excessive fines clause.
Austin involved a civil forfeiture proceeding against a body shop and mobile home after its owner pleaded guilty to a drug offense. The government defended its action under the excessive fines clause, claiming the civil forfeiture was not “punishment” and thus could not be an excessive fine under the Eighth Amendment. Relying on Halper “that civil proceedings may advance punitive and remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties,” Austin, 509 U.S. at 610 at 610, 113 S.Ct. at 2806 (citing Halper, 490 U.S. at 447, 109 S.Ct. at 1901), the Court held:
[T]he question is not, as the United States would have it, whether forfeiture under
§§ 881(a)(4) and(a)(7) is civil or criminal, but rather whether it is punishment.
In considering this question, we are mindful of the fact that sanctions frequently
Austin, 509 U.S. at 610, 113 S.Ct. at 2806 (emphasis added). Austin therefore seems to apply the Halper double jeopardy analysis to the
Later Austin restates the same point: “Fundamentally, even assuming that
In Ursery a majority of the United States Supreme Court held civil forfeiture, an in rem proceeding, cannot be punishment for the purpose of the
While careful to distinguish civil forfeitures from all other types of sanctions, a footnote to the majority opinion discusses the Halper case in the context of Justice Stevens‘s dissenting opinion. Ursery, ___ U.S. at ___ n. 2, 116 S.Ct. at 2145 n. 2. There the Court observed:
Whether a particular sanction “cannot fairly be said solely to serve a remedial purpose” is an inquiry radically different from that which we have traditionally employed in order to determine whether, as a categorical matter, a civil sanction is subject to the
double jeopardy clause .... If the “general rule” of Justice Stevens were applied literally, then virtually every sanction would be declared to be a punishment: It is hard to imagine a sanction that has no punitive aspect whatsoever.
The context of the footnote suggests the Court was primarily interested in stating even if civil forfeitures are purely or partially punitive that does not subject them to double jeopardy analysis in any event. In dissent Justice Stevens disagreed. Even so, it is clear the majority distinguished forfeitures from all other types of sanctions, drawing a “sharp” distinction between in rem forfeiture and in personam civil penalties.5Ursery, ___ U.S. at ___ _ ___, 116 S.Ct. at 2141-142.
Punitive civil sanction cases
Kurth Ranch addressed the double jeopardy question directly in the context of a nonforfeiture Montana tax on illicit drugs. It is the seminal case because it is the United States Supreme Court‘s last word on the subject at hand. The issue in Kurth was whether or not the tax “has punitive characteristics that subject it to the constraints of the
As in Kurth, the like question here is whether this probationary license status has any punitive characteristics. If so it is punishment for double jeopardy purposes, and the DUI charges must be dismissed. See
Both the concurrence to the majority and the concurrence to this dissent argue an inconsistency between the Supreme Court‘s analysis in Ursery and the Supreme Court‘s analysis in Halper and Kurth, and thus claim the Ursery analysis should be followed in the case at bar because Ursery is the most recent of the three. Citing language in Ursery to the effect that an excessive fines clause analysis in the Austin forfeiture case should not be “imported” into double jeopardy cases not involving forfeiture or excessive fines, Concurrence at 1344 n. 1 (citing Ursery, ___ U.S. at ___, 116 S.Ct. at 2147), the concurrence suggests the dissenting opinion does not follow Ursery because “the dissent evidently believes the Supreme Court is wrong [in Ursery ]....” This misses the point.
Whether or not the Supreme Court dropped the ball in Ursery (and there is substantial scholarly comment to that effect)7 is not material to the resolution of this case because Ursery was a forfeiture case decided under the
State cases on double jeopardy State v. Clark, 124 Wash.2d 90, 98, 100, 875 P.2d 613 (1994) applied a double jeopardy standard to forfeiture facts. The question there was whether or not a civil forfeiture statute in combination with criminal sanctions violated state or federal prohibitions against the imposition of double jeopardy. A unanimous court held, “[A] forfeiture statute must be solely remedial to escape characterization as `punishment’ under the federal
Whether Clark and Cole are consistent with Ursery‘s federal (not state) forfeiture analysis remains to be seen; however, clearly these cases facially define the punishment standard for double jeopardy purposes— which is the issue presented by this case.
I conclude that this probationary license is wholly punitive, and nothing else. It does not revoke or limit the licensed driver‘s privilege to drive but is there to deter a subsequent DUI by enhancing the applicable
Notes
“(a)Proceedings Subject to Rules. These rules establish the procedure, called appeal, for review by the superior court of a final decision of a court of limited jurisdiction, subject to the restrictions defined in this rule. These rules apply ... to review of (1) district courts....”
The dissent relies on our language in State v. Clark, 124 Wash.2d 90, 98, 875 P.2d 613 (1994): “[A] forfeiture statute must be solely remedial to escape characterization as `punishment’ under the federal double jeopardy clause.” Clark, in turn, relied on Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), for the same wording. Clark, 124 Wash.2d at 100, 875 P.2d 613. Leaving aside the important question of whether the same considerations that apply in the civil forfeiture arena apply in the context of driver license administration, the Supreme Court has decided the “holding of Austin was limited to the Excessive Fines Clause of the Eighth Amendment, and we decline to import the analysis of Austin into our double jeopardy jurisprudence.” United States v. Ursery, ___ U.S. ___, 116 S.Ct. 2135, 2147, 135 L.Ed.2d 549 (1996). The dissent evidently believes the Supreme Court is wrong about this and relies heavily on Austin for its double jeopardy analysis. We are bound to observe the Supremacy Clause: the Supreme Court‘s rulings on double jeopardy under the federal constitution control. We have said our state constitution provides no greater double jeopardy protection than the federal constitution. State v. Gocken, 127 Wash.2d 95, 896 P.2d 1267 (1995). Compare[I]f a particular remedial sanction can only be understood as also serving punitive goals, then the person subjected to the sanction has been punished despite that fact that the sanction is also remedial. To conclude otherwise effectively invalidates the