State v. Zerkel

BRYNER, Chief Judge,

concurring.

I agree with the court’s opinion and I write separately only to emphasize what I see as its core rationale. Whenever the public welfare justifies regulating an activity by implementing and enforcing a licensing requirement, the state will necessarily have a legitimate regulatory — that is, non-punitive — interest in encouraging compliance with the regulations upon which the original issuance and continued validity of the license are conditioned. Conversely, the state will necessarily have a legitimate regulatory interest in deterring noncompliance with these regulations. Thus, in the particular context of a licensed activity, enforcement efforts by the state will always play an essentially remedial role, even if one of the avowed purposes of those efforts is deterrence.

This is not to say that all measures aimed at deterring noncompliance with the laws regulating a licensed activity must be deemed non-punitive. The imposition of sanctions having no direct connection to the regulation of the licensed activity certainly might be deemed punitive in some cases. But the sanction of suspending or revoking a license for noncompliance with the conditions governing its very issuance or continued existence necessarily bears an inherent relationship to the remedial goal of restoring regulatory compliance. Indeed, it is difficult to conceive of any sanction that could more directly remedy a licensee’s noncompliance with the regulations governing a licensed activity than suspending or revoking the license itself. Accordingly, under the standards set out in Halper, Austin, and Kurth Ranch, the sanction at issue in the current cases — suspension or revocation of a driver’s license for violation of the laws governing the licensed activity of driving — is necessarily remedial, not punitive.