State v. Davis , 347 Utah Adv. Rep. 31 ( 1998 )

STEWART, Justice:

We granted certiorari to review the Court of Appeals’ decision that the forfeiture of defendant Wallace Davis’s car, pursuant to Utah Code Ann. § 58-37-13(l)(e) (1994), constituted punishment for double jeopardy purposes and barred a subsequent criminal prosecution under Utah Code Ann. § 58-37-8(2)(a)(i) for possession of a controlled substance. State v. Davis, 903 P.2d 940, 950 (Utah Ct.App.1995). Davis’s car was forfeited to the State after a search of the vehicle revealed a small quantity of cocaine. Davis moved for dismissal of the criminal charge filed against him on the ground that the charge constituted an attempt to punish him twice for the same crime and therefore violated his constitutional right against double jeopardy. The Court of Appeals reversed the district court’s denial of Davis’s motion based on the federal constitutional guarantee against double jeopardy.

I. BACKGROUND

On January 18, 1994, West Valley police officers stopped Davis for a vehicle license violation. Because there was an outstanding warrant for Davis’s arrest, the officers arrested him and impounded his vehicle. One quarter gram of cocaine was found in the vehicle. The State seized and held his vehicle for forfeiture. Davis opposed the forfeiture on the ground that it violated the Excessive Fines Clause of the Eighth Amendment. At the forfeiture proceeding, held on May 11, 1994, the trial court rejected Davis’s argument and ordered the vehicle forfeited. Davis did not appeal that decision.

The State filed criminal charges against Davis on April 12, 1994, for possession of cocaine. After judgment was entered in the forfeiture proceeding, Davis moved to dismiss the criminal charge, arguing that its prosecution would violate his right against double jeopardy under both the Utah and United States Constitutions. The district court found that the “Blue Book” value of Davis’s vehicle was between $2925 and $4600, and that the cost of prosecuting the actions against Davis had been approximately $2500. The district court, relying on the rationale provided by United States v. Halper, 490 U.S. 435, 449, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), rejected Davis’s argument that double jeopardy principles prevented the criminal prosecution. The district court ruled that:

the penalty suffered by the defendant in the forfeiture proceeding did not exceed what could reasonably be regarded as the equivalent compensation for the state[’]s loss, and the penalty is not entirely unrelated to the actual damages suffered. The forfeiture penalty assessed in the forfeiture action was not so disproportionate to the cost of investigating and prosecuting the defendant that it constitutes “punishment” rather than “rough remedial justice.” It does not violate the double jeopardy provisions of the United States or Utah [Constitutions pursuant to U.S. v. Halper ....

The Court of Appeals heard the case on interlocutory appeal. A divided panel of that court reversed the district court’s denial of Davis’s motion. The Court of Appeals held that the Double Jeopardy Clause in the Federal Constitution precluded any prosecution of Davis for possession of the cocaine found in his vehicle because forfeiture of the vehicle constituted a prior criminal punishment under Austin v. United States, 509 U.S. 602, 622, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). In Austin the United States Supreme Court held that in rem forfeiture proceedings were subject to the Eighth Amendment Excessive Fines Clause. Id.; see also United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) (treating in personam forfeiture). The Utah Court of Appeals ruled that Austin, in addition to its Eighth Amendment application, also provided the governing definition of criminal punishment for purposes of the federal Fifth Amendment Double Jeopardy Clause. State v. Davis, 903 P.2d 940, 948 (Utah Ct.App.1995). The Court held that the forfeiture of Davis’s car was punishment under Austin.¹ Id. at 949-50. The Court of Appeals also held that Davis failed to offer a distinct and separate analysis to support his state constitutional argument and therefore declined to decide that issue. Id. at 942 n. 5.

We granted the State’s petition for certio-rari. Subsequently, the United States Supreme Court decided United States v. Ursery, 518 U.S. 267, 286-87, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), which held that the Eighth Amendment as construed by Austin did not govern the issue of whether a forfeiture constituted punishment under the Fifth Amendment double jeopardy clause. The Supreme Court also recently decided Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 494-95, 139 L.Ed.2d 450 (1997), which disavows other recent Supreme Court cases that had placed heavy emphasis on the dis-proportionality of civil penalties in deciding whether they are criminal punishments.

II. DAVIS’S CLAIM THAT PROSECUTION IS BARRED BY THE FEDERAL CONSTITUTIONAL PROSCRIPTION ON DOUBLE JEOPARDY

The Court of - Appeals’ interpretation of the Federal Constitution is a question of law- that we review for correctness. State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995). If forfeiture of Davis’s car as a consequence of the controlled substance found in it constitutes punishment of Davis under the Fifth Amendment double jeopardy clause, as applied to the states via the Fourteenth Amendment, then the State may not criminally prosecute Davis for unlawful possession of that controlled substance. If, however, the in rem forfeiture of Davis’s vehicle was not a punishment for double jeopardy .purposes, then the double jeopardy clause does not bar the criminal information filed against him.

The Court of Appeals stated that “with respect to determining whether forfeiture constitutes punishment, we hold that it makes no difference whether the analysis applies to the Fifth or Eighth Amendment.” Davis, 903 P.2d at 949. The Court relied on Austin v. United, States, 509 U.S. 602, 622, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), an Eighth Amendment Excessive Fines case, to hold that the forfeiture of Davis’s car constituted punishment for Fifth Amendment double jeopardy purposes.

The premise employed by the Court of Appeals has been rejected by United States v. Ursery, 518 U.S. 267, 278-88, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), and Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 494-95, 139 L.Ed.2d 450 (1997), which were decided by the United States Supreme Court after the Court of Appeals handed down its opinion. Of particular significance is Ursery, which rejected the approach taken by the Court of Appeals in deciding whether civil forfeitures constitute a punishment for double jeopardy purposes. Ursery ruled that “punishment,” as that term is defined for the Eighth Amendment Excessive Fines Clause, differs from the definition of the same word in the context of in rem forfeiture proceedings under the multiple punishments category of the Fifth Amendment Double Jeopardy Clause. Ursery, 518 U.S. at 286-87, 116 S.Ct. 2135.

The issue in Ursery was the same as the issue here: When does an in rem forfeiture constitute punishment for double jeopardy purposes? Id. at 288, 116 S.Ct. 2135. Ursery held that in rem forfeitures are substantively different from fines and penalties that are levied directly upon persons, and must be treated differently. Id. at 278, 116 S.Ct. 2135. Cases dealing with in personam fines or forfeitures, or cases treating Eighth Amendment issues, are judged 'under a different standard than those dealing with in rem forfeitures. Id. at 278-88, 116 S.Ct. 2135. Ursery stated that “[o]ur cases reviewing civil forfeiture under the Double Jeopardy Clause adhere to a remarkably consistent theme.... [I]n rem civil forfeiture is a remedial civil sanction, distinct from potentially punitive in personam civil penalties such as fines.” Id. at 287, 116 S.Ct. 2135; see also One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 236, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972); Various Items of Personal Property v. United States, 282 U.S. 577, 581, 51 S.Ct. 282, 75 L.Ed. 558 (1931); State v. $175,800, 942 P.2d 343, 349 (Utah 1997). Ursery concluded that “nothing in Halper ... or Austin, purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause.” 518 U.S. at 278, 116 S.Ct. 2135. Nevertheless, Ursery also acknowledged that there is at least a possibility that an in rem forfeiture could be so punitive that it would constitute a criminal punishment for double jeopardy purposes. Id. at 289 n. 3, 116 S.Ct. 2135.

Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 494-95, 139 L.Ed.2d 450 (1997), further narrowed the circumstances in which any civil penalty (whether it be a fine or a forfeiture) may ‘ constitute punishment for double jeopardy purposes. Hudson held that jeopardy cannot be established by a civil fine or penalty unless it meets the criteria of United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980), and Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Hudson, 118 S.Ct. at 493.

Ward established a test to decide whether a civil penalty constitutes jeopardy:

First, we ... 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.

448 U.S. at 248-49, 100 S.Ct. 2686 (citations omitted). To determine whether a nominally civil penalty is “so punitive either in purpose or effect” as to constitute a criminal penalty, Ward relied upon Mendoza-Martinez. Id. at 249-50, 100 S.Ct. 2636. Mendoza-Martinez set out a non-exclusive list of criteria for determining whether a nominally civil statute actually prescribed a criminal penalty:

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.

372 U.S. at 168-69, 83 S.Ct. 554.

Hudson disavowed a portion of the holding of an earlier ease, United States v. Halper, 490 U.S. 435, 449, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), which had effectively held the last of the Mendoza-Martinez factors — excessiveness in relation tó the non-penal purpose assigned to the sanction — dis-positive in cases where a fine or penalty was unusually disproportionate to the cost caused by the wrongdoer. Hudson, 118 S.Ct. at 494-95. Thus, Hudson makes it less likely that a civil penalty or fine constitutes criminal punishment for double jeopardy purposes.

Turning to the instant case, we address Davis’s contentions under the two-prong Ward standard, reaffirmed by Ursery and Hudson: (1) whether the Legislature indicated that the forfeiture measure should be treated as a civil penalty; and (2) whether it is so punitive in purpose or effect as to negate that intention. The version of the statute in effect at the time of Davis’s prosecution was Utah Code Ann. § 58-37-13 (1994).² The Legislature did not expressly label that version of the statute. It simply stated: “Proceedings of this section are independent of any other proceedings, whether civil or criminal, under this chapter or the laws of this state.”³ Id. § 58-37-13(9)(h) (1994).

Lacking an express indication of the intended nature of the statute, we must derive it by implication. In examining this question, Ursery noted that “‘Congress’ intent ... is most clearly demonstrated by the procedural mechanisms it established for enforcing forfeitures under the statute[s].’ ” Ursery, 518 U.S. at 288, 116 S.Ct. 2135 (quoting United States v. One Assortment of 89 Firearms, 465 U.S. 354, 363, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984)). The procedural mechanisms in Utah Code Ann. § 58-37-13 (1994), imply that the Legislature did not intend forfeiture under the statute to be a criminal punishment. The statute required that a complaint be filed and notice given to possible claimants. See id. § 58-37-13(9)(a). Claimants were given twenty days to respond, and then a hearing had to be set within twenty days. See id. § 58-37-13(9)(f)-(g). The court was then required to conduct a hearing and rule on the petition for forfeiture based on a preponderance of the evidence standard. See id. § 58-37-13(9)(g). These procedures were relatively informal and clearly did not contain any of the traditional indicia of a criminal penalty or prosecution.

The only factor in the statute’s procedural mechanism that could be construed to indicate an intent to render a forfeiture proceeding criminal in nature was the requirement that the complaint be prepared and filed by the same prosecuting office that handles criminal actions. This requirement, however, assumed that the forfeitable property was likely contraband or an instrumentality of a crime. The officials responsible for handling the criminal matter would also have custody of, and familiarity with, the forfeitable property. Hence, we believe the Legislature required prosecuting officials to file the forfeiture complaint for pragmatic reasons and not because the Legislature viewed the statute as creating a criminal penalty.

Moving to the second prong of the Ward analysis, we must decide “whether the statutory scheme was so punitive either in purpose or effect as to negate [the] intention [that the statute be civil in nature].” Ward, 448 U.S. at 249. On this question Ursery establishes a firm presumption that in rem forfeitures are not punishment for double jeopardy purposes. 518 U.S. at 278, 287-88, 116 S.Ct. 2135. Only the “ ‘clearest proof ” of a punitive form or effect will suffice to overcome that presumption. Id. at 289 n. 3, 116 S.Ct. 2135.

While Ursery provides little guidance for deciding when a forfeiture becomes so punitive that it constitutes criminal punishment, there have been a number of United States Supreme Court cases examining that question in the in personam context. See Rex Trailer Co. v. United States, 350 U.S. 148, 149, 76 S.Ct. 219, 100 L.Ed. 149 (1956); Marcus v. Hess, 317 U.S. 537, 545, 63 S.Ct. 379, 87 L.Ed. 443 (1943); Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 82 L.Ed. 917 (1938). Because Ursery held that in rem forfeitures are less likely to be treated as criminal punishment than in personam penalties, any forfeiture that is not severe enough to constitute punishment under an in personam analysis cannot constitute punishment in the in rem context. In the instant case the parties stipulated that the “Blue Book” value of Davis’s car was between $2925 and $4600. The parties also stipulated that the State’s cost of investigating and prosecuting the cases was approximately $2,500. Federal in personam cases have allowed civil penalties that amounted to many times more than the cost of prosecuting cases. See Rex Trailer, 350 U.S. at 154, 76 S.Ct. 219; Marcus v. Hess, 317 U.S. at 548-49, 63 S.Ct. 379. The penalty imposed in this case was therefore well within the limits prescribed by in personam cases, let alone those prescribed for in rem cases.

Moreover, the recent holding in Hudson places a more substantial burden on the person challenging a civil fine or forfeiture under the Federal Constitution. The only substantial argument that Davis offers in this case is that the penalty of forfeiture was disproportionate to the cost, of his crime. Not only was that cost not disproportionate under the pre-Hudson rationale offered by Halper, but the post-Hudson rationale makes clear that disproportionality of cost is only one factor among many. 522 U.S. 93, 118 S.Ct. 488, 494-95, 139 L.Ed.2d 450. In any event, there do not appear to be any other factors militating in favor of a finding that forfeiture in this case was a criminal punishment. In sum, we hold that under Ursery and Hudson the forfeiture of Davis’s car was not punishment for purposes of the federal Double Jeopardy clause.

Davis also argues that we should treat his state constitutional claims as an alternate ground for upholding the Court of Appeals’ ruling. See State v. South, 924 P.2d 354, 357 (Utah 1996). We decline to do so on the same ground as the Court of Appeals. See Davis, 903 P.2d 940, 942 n. 5 (Utah Ct.App.1995). The Court of Appeals ruled that Davis had failed to properly raise his claim under the Utah Constitution. Id. We agree. Davis has not adequately set forth any separate legal analysis and has not otherwise suggested a reason that warrants a distinct analytical treatment under the Utah Constitution. See State v. Lafferty, 749 P.2d 1239, 1247 n. 5 (Utah 1988).

We therefore reverse the Court of Appeals and affirm the trial court.

HOWE, C.J., and RUSSON, -J., concur in Justice STEWART’s opinion.

1 . The State also argued that the in rem forfeiture and the criminal charge were effectively one proceeding, avoiding double jeopardy analysis. The Court of Appeals rejected this argument and the State has not contested that portion of the decision in its petition for certiorari or in its argument before this Court.

2 . The statute has subsequently been amended to include a section containing definitions and to specifically provide that if one is criminally charged, a forfeiture may proceed as part of the criminal prosecution. See Utah'Code Ann. § 58-37 — X 3(9)(c) (1998).

3 . The current version of the statute specifically designates a separate forfeiture proceeding as a "civil in rem” action. Utah Code Ann. § 58-37-13 (9)(c) (1998).