Shoul, L. v. Bureau of Driver Licensing, Aplt. ( 2017 )

[J-83-2016] [MO:Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
LAWRENCE S. SHOUL, : No. 64 MAP 2015
:
Appellee : Appeal from the Order of the Adams
: County Court of Common Pleas, Civil
: Division, at No. 2014-S-721 dated
v. : February 24, 2015, exited February 26,
: 2015.
:
COMMONWEALTH OF PENNSYLVANIA, : ARGUED: December 6, 2016
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
:
Appellant :
CONCURRING AND DISSENTING OPINION
JUSTICE MUNDY DECIDED: November 22, 2017
I agree with the Majority to the extent it concludes that 75 Pa.C.S. § 1611(e)
does not violate Appellee’s substantive due process rights under the Pennsylvania
Constitution. As the Majority explains, Section 1611(e) has a “real and substantial
relation” to the deterrence of drug trafficking. See Majority Op. at 17-18. I therefore join
parts I and II(A) of the Majority Opinion. However, I cannot agree that Section 1611(e)’s
revocation of driving privileges imposes punishment within the meaning of the Eighth
Amendment. Therefore, I respectfully dissent from the Majority’s decision to vacate and
remand in part.
The Eighth Amendment states that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST.
amend. VIII. I begin by noting that this Court has already concluded that suspension or
revocation of one’s driver’s license is not a criminal sanction. Indeed, in Plowman v.
Commonwealth Department of Transportation, 635 A.2d 124 (Pa. 1993), this Court
concluded that mandatory suspension of a driver’s license because of a drug conviction
is not criminal punishment for the purposes of the Eighth Amendment. Plowman, 635
A.2d at 127-28. The Majority does not attempt to reconcile its decision with Plowman.1
Putting aside this Court’s analysis in Plowman, the Majority’s conclusion is still
problematic. Some traditional examples of punishment include imprisonment, a criminal
fine, criminal forfeiture, and civil in rem forfeiture, which all impose significant
restrictions on the class of persons against whom they are imposed. Imprisonment,
parole, and probation fundamentally restrict a person’s liberty and movement. Further,
everyone generally has a right to own property and not to have the government restrict
his or her personal liberty. In Austin v. United States, 509 U.S. 602 (1993), upon which
the Majority heavily relies, the Court characterized the concept of a fine as the
government “extracting payments” from its citizens, and therefore deemed it
punishment. Austin, 509 U.S. at 610. However, it is quite another matter for a state to
grant a privilege to a person and revoke the same. See Plowman, 635 A.2d at 126
(stating, “[o]perating a motor vehicle upon a Commonwealth highway is not a property
right but a privilege.”) (internal quotation marks and citation omitted). Therefore, the
relevant inquiry is whether the revocation of a privilege otherwise granted by the
government is itself punishment within the meaning of the Eighth Amendment, even if
the revocation has some deterrent purpose.
The Majority concludes that Austin provides the appropriate framework for
determining whether Section 1611(e) constitutes punishment within the meaning of the
1
This Court also expressed the view that, even if it deemed a license suspension
predicated on a criminal conviction to be punishment, it would not find it unconstitutional
because it was “not arbitrarily imposed for the purpose of inflicting pain and suffering.”
Plowman, 635 A.2d at 127 n.3.
[J-83-2016] [MO: Todd, J.] - 2
Eighth Amendment.2 In Austin, the Supreme Court considered whether the federal civil
in rem forfeiture scheme constituted a punishment for the purposes of the Excessive
Fines Clause. The Court concluded it did, noting that “[t]he Excessive Fines Clause
limits the government’s power to extract payments, whether in cash or in kind, as
punishment for some offense.” Austin, 509 U.S. at 610 (internal quotation marks and
citation omitted; emphasis in original). After discussing the history of forfeiture, the
Court concluded that certain hallmarks of the federal forfeiture scheme revealed that
Congress intended to utilize civil in rem forfeiture to punish. Id. at 619. The Supreme
Court noted 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.” Id. (quoting United
States v. Halper, 490 U.S. 435, 448 (1989)).
This broadly-worded pronouncement in Austin comes from Halper. Halper was
convicted of 65 counts of Medicare fraud. Halper, 490 U.S. at 437. After the criminal
proceedings concluded, the government brought a separate civil action seeking a
$130,000.00 civil penalty against Halper under the False Claims Act, which mandated a
$2,000.00 penalty per violation. Id. at 448. Ultimately, the Court concluded that the
imposition of this civil penalty could be a second and subsequent “punishment,” in
violation of the Double Jeopardy Clause. Id. at 449. The Court stated the rule as
“[w]here a defendant previously has sustained a criminal penalty and the civil penalty
sought in the subsequent proceeding bears no rational relation to the goal of
compensating the Government for its loss, but rather appears to qualify as ‘punishment’
in the plain meaning of the word, then the defendant is entitled to an accounting of the
2
Plowman was decided on December 14, 1993, approximately five and one-half
months after Austin was decided on June 28, 1993.
[J-83-2016] [MO: Todd, J.] - 3
Government's damages and costs to determine if the penalty sought in fact constitutes
a second punishment.” Id.
The Court’s analysis in Halper as to whether the civil penalty was “punishment”
appeared to take contradictory positions insofar as the Court articulated two tests. The
first was the test that appears in Austin, “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.” Id. at 448 (emphases added). However, the second test from Halper states 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
fairly be characterized as remedial, but only as a deterrent or retribution.” Id. at 448-49
(emphasis added). The Supreme Court of Minnesota highlighted the contradiction in
the following terms.
The two “tests” quoted above are strikingly dissimilar. The
first is a “solely remedial” test. Applied literally, it would
appear to invalidate on double jeopardy grounds any
remedial civil sanction also “serving either retributive or
deterrent purposes,” no matter how minor. The second is a
“solely deterrent/retributive” test. Applied literally, it would
appear to uphold on double jeopardy grounds any civil
sanction which “may fairly be characterized as remedial.”
State v. Hanson, 543 N.W.2d 84, 87 (Minn. 1996).
The Supreme Court abrogated Halper in Hudson v. United States, 522 U.S. 93
(1997). The Court confronted its problematic language in Halper, noting that the “solely
remedial” test, which is found in Austin, had proved to be unworkable because “all civil
penalties have some deterrent effect.” Hudson, 522 U.S. at 102. Echoing the
Minnesota Supreme Court’s concerns, the Court observed “[i]f a sanction must be
‘solely’ remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy
[J-83-2016] [MO: Todd, J.] - 4
Clause, then no civil penalties are beyond the scope of the Clause.” Id. Therefore, it
appears that the Court has retreated from its “solely remedial” test in determining
whether a sanction constitutes punishment. Critically, Hudson did not discuss or retreat
from Halper’s “solely deterrent” test.3
In addition, by taking Halper’s “solely remedial” test literally, as the Majority does,
it is difficult to envision a civil consequence that does not serve as deterrence in some
regard, and hence is not punishment. As Hudson recognized, every civil consequence
imposed by the government is intended to have at least some deterrent purpose. Id.
3
The Majority concludes that Hudson is of no consequence in this case because Halper
and Hudson are Double Jeopardy Clause cases, whereas Austin is an Eighth
Amendment case. Majority Op. at 22 n.14. However, the Majority appears to
acknowledge that the test applied in Austin derived from Halper’s Double Jeopardy
Clause test that the Court has since backed away from in Hudson. I recognize that it is
not clear whether the Court has abrogated Halper’s test for all constitutional provisions
given that civil in rem forfeiture is materially different from revocation of a privilege.
Nevertheless, I conclude the test is not applicable.
The Majority cites United States v. Ursery, 518 U.S. 267 (1998), in which the
Court held that civil in rem forfeiture was not punishment for purposes of the Double
Jeopardy Clause. However, in its analysis, the Ursery Court explicitly noted that “[t]he
holding of Austin was limited to the Excessive Fines Clause of the Eighth
Amendment[.]” Ursery, 518 U.S. at 287 (emphasis added). As noted above, Austin
characterized a fine as an “extraction” or “payment” to the sovereign as punishment for
an offense. Austin, 509 U.S at 609-10, 622. In forfeiture proceedings, such as in
Austin, the government obviously intends to “extract” property of some sort from a
citizen. Therefore, Austin applied Halper’s “solely remedial” test to determine whether
that payment to the government was punitive and hence a “fine” for the purposes of the
Excessive Fines Clause. Austin’s use of the “solely remedial” test is therefore
understandable, since “a fine that serves purely remedial purposes cannot be
considered ‘excessive’ in any event.” Id. at 622 n.14.
However, the revocation of a privilege is not a “payment” of property to the
government. In this case, the Majority expands the scope of the “solely remedial” test
beyond the Excessive Fines Clause. Under the Majority’s view, Halper’s “solely
remedial” test would apply to any negative consequence imposed by law, including
revocation of a privilege. Therefore, even though the Supreme Court has not yet
reconciled Halper, Austin, and Hudson, I cannot agree with the Majority’s expansion of
Austin beyond its legal foundation.
[J-83-2016] [MO: Todd, J.] - 5
Indeed, the objective of government-imposed penalties is to advance the betterment of
society as a whole and shape citizens’ behavior in a way that promotes good citizenship
and deters crime. Consequently, applying Austin’s solely remedial test as the Majority
does, anything may be deemed punishment if it deters some behavior.
In my view, the test we should apply is Halper’s actual holding, i.e., the “solely
deterrent” test that remains viable after Hudson.4 Section 1611(e)’s consequence, while
having deterrent effects, is not solely deterrent. Section 1611(e) protects the public
from those who violate the conditions of having a commercial driver’s license and
promotes the general welfare by removing a participant in the drug trade from the
Commonwealth’s roads and highways. In my view, this is sufficient to show that
Section 1611(e)’s consequence is not “solely deterrent” so as to constitute punishment,
especially in light of the fact that it is the revocation of a privilege, not a fundamental or
constitutional right.5
Based on the foregoing, I conclude the trial court erred when it held that
Appellee’s substantive due process rights and right to be free from cruel and unusual
punishment were violated. Accordingly, I would reverse the trial court’s order in its
entirety. I respectfully dissent.
4
This is consistent with Halper’s statement that its holding was intended to be “a rule for
the rare case[.]” Halper, 490 U.S. at 449.
5
My conclusion is consistent with the conclusion reached by many other states on this
issue. See, e.g., State v. Hickam, 668 A.2d 1321, 1328 (Conn. 1995), overruled on
other grounds, State v. Crawford, 778 A.2d 947 (Conn. 2001); State v. Savard, 659
A.2d 1265, 1267-68 (Me. 1995); Hanson, 543 N.W.2d at 88-89; State v. Mayo, 915
S.W.2d 758, 761-63 (Mo. 1996).
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