                              [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).



                               [J-83-2016] [MO: Todd, J.] - 6
