                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-6-1996

Taylor v. Secretary HUD
Precedential or Non-Precedential:

Docket 95-5873




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"Taylor v. Secretary HUD" (1996). 1996 Decisions. Paper 7.
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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                           No. 95-5873


                        SILAS TAYLOR, JR.,

                                         Appellant

                                v.

        HENRY CISNEROS, in his capacity as Secretary of
          the United States Department of Housing and
          Urban Development; BOARD OF COMMISSIONERS OF
                THE HOUSING AUTHORITY OF BAYONNE

                        STATE OF NEW JERSEY,

                                         Intervenor


        On Appeal from the United States District Court
                 for the District of New Jersey
                    (D.C. Civ. No. 94-06317)


                      Argued October 7, 1996

     BEFORE:   MANSMANN, GREENBERG, and GARTH, Circuit Judges

                    (Filed: December 6, 1996)


                                John N. Ukegbu
                                Gregory G. Diebold (argued)
                                Hudson County Legal Services
                                Corporation
                                574 Newark Avenue
                                Jersey City, NJ 07306

                                     Attorneys for Appellant

                                Jeanette M. Samra (argued)
                                Fitzpatrick & Waterman
                                400 Plaza Drive
                                P.O. Box 3159
                                Secaucus, NJ 07096

                                     Attorneys for appellee Board
                                     of Commissioners of the
Housing Authority of Bayonne
                               Peter Verniero
                               Attorney General
                               Cheryl R. Clarke (argued)
                               Deputy Attorney General
                               Joseph L. Yannotti
                               Assistant Attorney General
                               Office of the Attorney General
                               of New Jersey
                               Richard J. Hughes Justice
                               Complex
                               Trenton, NJ 08625

                                     Attorneys for appellee State
                                     of New Jersey


                       OPINION OF THE COURT


GREENBERG, Circuit Judge.

          Silas Taylor, Jr., appeals from a final judgment
entered on November 29, 1995. In his complaint he sought a
judgment declaring that the actions of the appellee, Housing
Authority of Bayonne, New Jersey, in terminating his tenancy and
seeking his eviction in a proceeding in the New Jersey Superior
Court, predicated on his convictions on pleas of guilty in a New
Jersey municipal court to possession of drug paraphernalia on the
authority's premises, violated certain of his constitutional
rights. While Taylor originally also sought relief against the
secretary of the United States Department of Housing and Urban
Development, the issues relating to the secretary are not
involved on this appeal and the secretary is no longer a party to
the case. The State of New Jersey has intervened pursuant to 28
U.S.C. § 2403(b) supporting the position of the Housing
Authority. This appeal raises the question of whether the
Housing Authority is barred from seeking Taylor's eviction by
reason of his punishment for the possession of the drug
paraphernalia in the municipal court by the Double Jeopardy
Clause of the Fifth Amendment or the Excessive Fines Clause of
the Eighth Amendment.


              I. BACKGROUND AND PROCEDURAL HISTORY

          The district court set forth the background of the case
in its opinion reported as Taylor v. Cisneros, 913 F. Supp. 314
(D.N.J. 1995). Since 1988 Taylor has resided in an apartment in
low-income housing in Bayonne, New Jersey, owned and operated by
the Housing Authority. The Department of Housing and Urban
Development subsidizes his rent so that he pays only $125 per
month for an apartment with a fair monthly rental value of $706.
Taylor is both hearing and speech impaired and his sole income is
a monthly social security disability payment of $497.
Consequently, he cannot afford to pay market rent and if evicted
from the Bayonne apartment will have no place to live and will
end up on the streets homeless.
          On October 20, 1992, Taylor pleaded guilty to
possession of narcotics paraphernalia in the Bayonne Municipal
Court, a violation of the Comprehensive Drug Reform Act of 1987,
N.J. Stat. Ann. §§ 2C:35-1 et seq. (West 1995). Taylor committed
this offense on the property of the Housing Authority in which he
resides, though not in his particular apartment. On February 3,
1994, Taylor again pleaded guilty to the commission of the same
offense, though he committed this second offense on a different
day and on property next to that of the Housing Authority rather
than on its property. The Housing Authority and the State do not
contend either that Taylor possessed drugs on the Housing
Authority property or that he distributed drugs. The municipal
court sentenced Taylor to 30 days imprisonment and fined him $625
on the second conviction. While the parties do not specify the
exact sentence imposed on the first conviction, they agree that
it was similar to that imposed on the second conviction.
          New Jersey is quite protective of tenants in
residential units and has adopted an Anti-Eviction Act,
applicable to both public and private housing, delineating the
circumstances in which a tenant can be removed from a rental
unit. N.J. Stat. Ann. § 2A:18-61.1 (West Supp. 1996). One such
circumstance is where the tenant has been convicted of or pleaded
guilty to an offense under the Comprehensive Drug Reform Act of
1987, N.J. Stat. Ann. § 2C:35-1 et seq., involving possession of
drug paraphernalia "within or upon the leased premises or the
building or complex of buildings and land appurtenant thereto . .
. in which those premises are located." N.J. Stat. Ann. § 2A:18-
61.1n (subsection "61.1n"). The parties agree that Taylor
pleaded guilty to an offense within the foregoing category.
Thus, without question, the Housing Authority may evict Taylor
under the Anti-Eviction Act if the New Jersey courts apply the
act as it is written.
          Pursuant to the Anti-Eviction Act, on November 29,
1994, the Housing Authority served notice on Taylor that it was
requiring his removal from its premises. Taylor responded by
filing this action in the district court under 42 U.S.C. § 1983,
charging that his eviction would violate his rights under the
Double Jeopardy Clause because he previously had been sentenced
in the municipal court for possession of the drug paraphernalia
and that his eviction would violate the Excessive Fines Clause of
the Eighth Amendment. While he also claimed that his eviction
would violate the Due Process Clause of the Fourteenth Amendment,
he does not raise that contention on this appeal. The Housing
Authority then instituted a summary dispossession proceeding in
the Superior Court of New Jersey, Hudson County, Law Division,
Special Civil Part, against Taylor seeking his eviction. The
state court, however, on Taylor's motion, has stayed those
proceedings pending the disposition of this case in the federal
courts. As we have indicated, the State of New Jersey has
intervened on behalf of the Housing Authority.
          Inasmuch as the facts germane to this case are not in
dispute, the district court decided the case on cross-motions for
summary judgment. Initially the court pointed out that the
parties disagreed as to whether it should consider the
constitutional questions as a facial challenge, or on an "as
applied" basis, i.e., consider "the specific circumstances of
Taylor's convictions and economic misfortune." Taylor, 913 F.
Supp. at 318. The court concluded that inasmuch as the New
Jersey state courts had not applied the facts to the
circumstances of this case "it [was] inappropriate, from a
prudential and jurisdictional perspective, to consider this an
'as applied' challenge." Id. Thus, the court treated the case
as a facial challenge to the Anti-Eviction Act. Id.
          The court then stated that "[s]tate action violates
neither the Double Jeopardy Clause nor the Excessive Fines Clause
unless it constitutes punishment." Id. at 319. Thus, the court
considered whether proceedings under subsection 61.1n are
intended to punish the tenant. The court said that the label put
on a proceeding does not determine if it is civil or criminal,
i.e., remedial or punitive, and that the court must "undertake 'a
particularized assessment of the penalty imposed and the purposes
that the penalty may fairly be said to serve.'" Id. (quoting
United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1901
(1989)). The court then cited Austin v. United States, 509 U.S.
602, 113 S.Ct. 2801 (1993), for the proposition "that for a
measure to qualify as punishment, it need not serve solely
retributive or deterrent purposes; rather, unless a sanction is
solely remedial, it is punishment." Taylor, 913 F. Supp. at 320.
          The court indicated that Taylor advanced the aspect of
the Double Jeopardy Clause involving the protection "against
multiple punishments for the same offense." Id. at 321. The
court said that proceedings under subsection 61.1n were not
intended to be punitive. In this regard, it pointed out that the
eviction of "an insidious tenant is a rational and effective
means of protecting all other tenants from activity antithetical
to their health, safety and welfare." Id. The court also noted
that because the legislature placed subsection 61.1n in remedial
legislation, the Anti-Eviction Act, and because the act applies
to both public and private landlords, subsection 61.1n is
remedial. Id. at 321-22. The court held that proceedings under
subsection 61.1n would not be punitive merely because of their
impact on Taylor.
          The court also held that the Excessive Fines Clause
could not apply because the proceedings under subsection 61.1n
were not punitive. The court then rejected the Due Process
Clause argument on the same basis.
          As a result of its conclusions, the district court
entered the judgment in favor of the appellees from which Taylor
appeals. We exercise plenary review on this appeal.


                          II. DISCUSSION

                  a. The parties' contentions
          Taylor argues that the district court erred in treating
the action as a facial attack on subsection 61.1n. He points out
that the Anti-Eviction Act upon its adoption in 1974
"'dramatically changed the rights of landlords and owners by
prohibiting the ejectment of residential tenants or lessees
simply because their tenancies or leases had expired.'" Br. at 8
(quoting Chase Manhattan Bank v. Josephson, 638 A.2d 1301, 1306
(N.J. 1994)). He indicates that in 1990 the legislature added
subsection 61.1n to the Anti-Eviction Act and he then
forthrightly acknowledges that "based on [his] February, 1994,
municipal court conviction for possession of drug paraphernalia,
and under [subsection 61.1n, he] is subject to eviction from his
apartment." Br. at 8.
          Taylor next explains that he does not challenge the
constitutionality of subsection 61.1n in general, but rather
argues that his eviction would violate the Double Jeopardy and
Excessive Fines Clauses. Distinguishing between facial and as
applied challenges, he contends that this case involves an as
applied challenge because there is a difference between
situations in which a party claims that a statute in all its
applications is unconstitutional and cases in which a party
acknowledges that a statute might be applied constitutionally in
some circumstances but is unconstitutional as applied to that
party. He cites United States v. Salerno, 481 U.S. 739, 745, 107
S.Ct. 2095, 2100 (1987); Village of Hoffman Estates v. Flipside,
Hoffman Estates, 455 U.S. 489, 497, 102 S.Ct. 1186, 1193 (1982);
and Jacobs v. The Florida Bar, 50 F.3d 901, 905-06 (11th Cir.
1995), to illustrate the distinction between facial and as
applied challenges.
          Taylor "readily concedes that he could not succeed in a
facial challenge to the statute." Br. at 11. He then explains
that:
          there are undoubtedly many situations where a
          tenant could legitimately be evicted for drug
          related activities without offending the
          Constitution - using the apartment to deal
          drugs, for example. But more importantly,
          the very nature of the plaintiff's challenge
          implicates consideration of individual
          circumstances. A fine cannot be 'excessive'
          or an eviction 'punitive' absent an analysis
          of the unique circumstances in which the
          individual reposes. Thus, the Constitutional
          violations complained of are simply not
          susceptible to facial attack.

Id. at 11. Taylor then continues that while "it may be
inappropriate to consider an 'as-applied' challenge to a statute
where there is ambiguity in the statute itself or where it is
unclear that the statute applies to plaintiff's conduct, such is
not the case here." Id. at 12. Rather, Taylor acknowledges that
subsection 61.1n as written provides for his eviction.
          Taylor argues that application of subsection 61.1n to
him would constitute punishment because, notwithstanding the
remedial character of an eviction, an eviction also has a
"retributive function." Br. at 18. He claims that an eviction
constitutes a forfeiture, citing, inter alia, A.P. Dev. Corp. v.
Band, 550 A.2d 1220, 1228 (N.J. 1988), and Carteret Properties v.
Variety Donuts, Inc., 228 A.2d 674, 680 (N.J. 1967). His
eviction, he says, should be regarded as an excessive fine
because his offenses, which he does not seek "to minimize,"
nevertheless were "minor in nature." Br. at 23. Furthermore, he
points out that he did not commit an offense in his apartment.
He also notes that he is receiving a rental subsidy of $581 per
month or $6,972 per year, based on the difference between the
fair market rental value of his apartment, $706 per month, and
his rent of $125. He argues that he could remain in the
apartment for ten years or 20 years so that his eviction could
cause him a loss of more than $100,000 in subsidies.
          He then argues that his eviction would violate the
Double Jeopardy Clause because he was punished in the Bayonne
Municipal Court for his drug paraphernalia offenses. He
emphasizes that the municipal court prosecutions were in the name
of the State of New Jersey and that the Housing Authority should
be regarded as a state agency. He contends that his eviction
would not serve a remedial purpose, and even if it did, it should
be regarded as a punishment for double jeopardy purposes because
it is a remedy disproportionate to his conduct.
          The State of New Jersey in its original brief argues
that the district court properly considered Taylor's challenge to
subsection 61.1n on a facial basis because, notwithstanding his
contention that he was seeking relief only for himself, "the
decision in this matter would affect all tenants who are subject
to" subsection 61.1n. Br. at 9. On the merits, the State
contends that the Anti-Eviction Act is intended to protect
tenants and that subsection 61.1n furthers this remedial purpose
"by eliminating drug activity from the buildings in which they
reside and areas surrounding those buildings." Id. at 13. Thus,
subsection 61.1n was intended to protect tenants from people
exactly like Taylor. Id.
          The State in its original brief cites our opinion in
Artway v. Attorney General, 81 F.3d 1235 (3d Cir. 1996), as the
then most recent authoritative precedent defining what
constitutes punishment for double jeopardy, ex post facto, and
due process purposes. It points out that under Artway a measure
must pass three tests so as not to constitute punishment: its
actual or subjective purpose must not be to punish; its objective
purpose must not be punitive; and its effects must not amount to
punishment. It argues that subsection 61.1n passes all three
tests, and thus a proceeding under it does not constitute
punishment. Consequently, in the State's view subsection 61.1n
does not violate the Double Jeopardy Clause and, by a similar
analysis, cannot violate the Excessive Fines Clause.
          The State modified its position after the Supreme Court
decided United States v. Ursery, 116 S.Ct. 2135 (1996), which we
discuss below, after the State filed its brief. In a letter
pursuant to Fed. R. App. P. 28(j), the State argues that Urseryhas
undermined Artway and thus Artway should not be applied in
this case. The State argues that we should affirm because, under
Ursery, Taylor is not being punished by the eviction proceedings
for either double jeopardy or excessive fines purposes. The
Housing Authority joins in the position of the State.


                        b. Our disposition
          As we have explained, the parties dispute whether the
district court properly considered the case on a facial as
opposed to an as applied basis. While Taylor advances the as
applied argument primarily in connection with his excessive fines
claim, he also raises it with respect to his double jeopardy
argument. We, however, will not linger on the distinction
between a facial and an as applied challenge because we find that
subsection 61.1n is constitutional as applied to Taylor.
          In three recent cases the Supreme Court and this court
have had occasion to consider double jeopardy and excessive fines
issues. First, in Artway we considered a challenge to the
registration provisions of New Jersey's Megan's Law which require
that certain sex offenders register with law enforcement
authorities upon completion of their sentences. Artway involved
double jeopardy, ex post facto, and bill of attainder challenges
to the law but did not implicate the Excessive Fines Clause. We
found in Artway that the "threshold question under each clause
[was] whether the registration provisions of Megan's Law impose
'punishment.' If registration does not impose punishment, our
inquiry with respect to the registration issue is at an end."
Artway, 81 F.3d at 1253. After a comprehensive analysis of
numerous precedents, in Artway "we develop[ed] a multi-part test
that looks to the legislature's subjective purpose in enacting
the challenged measure, its 'objective' purpose in terms of
proportionality and history, and the measure's effects." Artway,
81 F.3d at 1254.
          Under the first Artway test, a law will provide for
punishment if the legislature's subjective intention is that it
punish. Id. at 1263. The second Artway test is an objective
purpose analysis which asks whether, regardless of the
legislature's intent in enacting the law, the law has an
objective purpose to punish. Id. The objective purpose analysis
has three parts: first, can the law be explained solely by a
remedial purpose; if not it is punishment. Second, if the law's
objective purpose is remedial does an historical analysis show
that the measure traditionally has been regarded as punishment;
if so then the measure will be punishment unless its text or
legislative history demonstrates that the measure is not
punishment. The third component of the objective purpose
analysis considers both the measure's "deterrent and salutary
purposes." Id. at 1263.
          In Artway we also held that even if a measure passes
the subjective and objective purpose tests, if the effects of the
measure are sufficiently severe, then regardless of how they are
justified, the measure must be considered punishment. Id. at
1263. The effects test, however, is difficult to apply because
the cases do not establish a clearly defined line distinguishing
between measures that are or are not punishment. Id. at 1266.
Thus, in Artway we pointed out that while imprisonment and
revocation of citizenship constitute punishment, loss of a
profession, a right to work, or the termination of social
security benefits do not. Id. at 1266. Yet we do not doubt that
the person against whom the remedy in the latter three situations
is applied feels that he or she has been punished.
          Within a few weeks of our opinion in Artway we decided
United States v. Various Computers, 82 F.3d 582 (3d Cir.), cert.
denied, 117 S.Ct. 406 (1996). In Various Computers the claimant
in a civil forfeiture proceeding had pleaded guilty to a charge
of unauthorized use of and possession of credit cards. The
government then instituted a civil in rem forfeiture against the
property the claimant had acquired by the crime even though the
court had ordered the claimant to make restitution to the store
where he acquired the property. We rejected the claimant's
double jeopardy and excessive fine arguments because we held that
the forfeiture of the property was not punishment even though in
a sense the claimant already was paying for the property through
making restitution. Id. at 589. Because the property was the
fruit of the crime, the claimant "had no legal rights of
ownership" over the property. Id. at 589.
          Finally, in United States v. Ursery, 116 S.Ct. 2135
(1996), the Supreme Court held that the civil forfeitures
involved in that case and civil forfeitures generally, "do not
constitute 'punishment' for purposes of the Double Jeopardy
Claim." Id. at 2138. Ursery is particularly significant because
it drew a sharp distinction between civil penalties and civil
forfeitures. The Court discussed United States v. Halper, 490
U.S. 435, 109 S.Ct. 1892, a case on which Taylor relies. In
Halper the Court found that a treble damages action under the
False Claims Act against a person already criminally convicted
for the conduct was punitive and therefore was barred by the
Double Jeopardy Clause. The Court distinguished Halper from the
situations before it in Ursery as Ursery involved civil
forfeitures rather than civil penalties. Ursery, 116 S.Ct. at
2144. The Court explained that it "is difficult to see how the
rule of Halper could be applied to a civil forfeiture." Id. at
2145. In a passage, significant for our purposes in view of
Taylor's emphasis of the value of the subsidized lease that he
would lose in an eviction, the Court in Ursery said that, unlike
in civil penalty cases, "for Double Jeopardy purposes we have
never balanced the value of property forfeited in a particular
case against the harm suffered by the Government in that case."
Ursery, 116 S.Ct. at 2145.
          Artway, Various Computers, and Ursery as well as Austin
v. United States, 509 U.S. 602, 113 S.Ct. 2801, inform our
result. We analyze the case for double jeopardy purposes both
under Artway and Ursery, making the Artway analysis first. We
then resolve the excessive fine issue by following Austin and
Various Computers. In Artway we "attempted to harmonize a body
of doctrine that has caused much disagreement in the federal and
state courts. We realize[d], however, that our synthesis is by
no means perfect. Only the Supreme Court knows where all the
pieces belong." Artway, 81 F.3d at 1263. This continues to be
true and we do not attempt here to refine the synthesis in
Artway. Instead, we determine whether the application of
subsection 61.1n in this case violates the Double Jeopardy and
Excessive Fines Clauses and we say with some degree of confidence
that it does not.
          Our analysis requires us to review the Anti-Eviction
Act. The Act provides that for certain residential properties a
tenant may be removed only for "good cause." N.J. Stat. Ann. §
2A:18-61.1 (West Supp. 1996). Good cause may be related to
conduct of the tenant, e.g., the failure to pay rent, id. §
2A:18-61.1a, or it may have nothing to do with the conduct of the
tenant, e.g., the owner seeks to retire the building from
residential use, id. § 2A:18-61.1h. Subsection 61.1n relates to
a tenant's activities, but it is nothing more than the
legislature's recognition that it is unreasonable to deny a
landlord the right to terminate a lease when its property is
being used for purposes unlawful under the New Jersey
Comprehensive Drug Reform Act of 1987. Yet subsection 61.1n does
not require that the landlord bring an action to remove a tenant
who violates the drug law. Thus, subsection 61.1n leaves the
decision on whether to remove a tenant to the judgment of the
landlord which, after all, does have an interest in keeping its
property free from criminal activity.
          We do not doubt that if New Jersey did not have an
Anti-Eviction Act so that landlord-tenant relationships were
regulated solely by agreement, a landlord and tenant could agree
in their lease for the removal of a tenant who violated the drug
laws on the landlord's premises. See Chase Manhattan Bank v.
Josephson, 638 A.2d at 1306 ("At common law, the terms of the
tenancy controlled the right of the owner or landlord to eject
the tenant, whether that tenancy was a term of years or a
periodic tenancy."); 25 Fairmont Ave., Inc. v. Stockton, 326 A.2d
106, 110 (N.J. Super. Ct. Law Div. 1974) (before Anti-Eviction
Act, common law governed the substantive terms of leases).
Furthermore, we do not doubt that the landlord could use a
tenant's conviction for violating the drug laws on its premises
in an eviction proceeding as evidence to establish the tenant's
violation of the lease. State of New Jersey v. Gonzalez, 667
A.2d 684, 690 (N.J. 1995). In the circumstances, it would be
far-fetched to hold that the legislature intended to punish a
tenant violating the drug laws by the enactment of subsection
61.1n. To the contrary, inasmuch as the legislature authorized,
but did not require, the landlord to bring removal proceedings
under subsection 61.1n when the tenant was convicted of or
pleaded guilty to an offense under the drug laws it did not
intend to punish tenants by authorizing such proceedings.
Rather, it merely permitted the landlord to protect its property
from a tenant violating the law on the property.
          In this regard we reiterate that the Anti-Eviction Act
allows removal for causes wholly unrelated to the tenant's
conduct. Thus, a tenant may be removed because of the landlord's
need to comply with applicable laws, to retire the property from
residential use, to make reasonable changes in a lease at the
lease's termination, to make certain types of conversions of the
property, and for other reasons as well. N.J. Stat. Ann. §§
2A:18-61.1g, h, i, k. The legislature did not intend to punish
the tenants when it authorized such removals and it did not
intend to punish them by authorizing their removal under the
conditions set forth in subsection 61.1n either. Consequently,
subsection 61.1n passes the subjective Artway test.
          Subsection 61.1n plainly passes Artway's objective
test. The subsection can be explained solely by the remedial
purpose of allowing the landlord to remove a tenant who is using
the landlord's premises for an unlawful purpose. No landlord
should have to suffer the use of its property for unlawful
purposes. Indeed, under both federal and New Jersey law a
landlord in some circumstances runs the risk of its property
being forfeited if it is aware of unlawful drug activity on its
premises and does not take steps to end that activity. See 21
U.S.C. § 881(a)(7); N.J. Stat. Ann. §§ 2C:64-1, 5(b) (West
1995). Furthermore, it is in the interest of the other tenants
that drug activities not be conducted on the premises. Of
course, removal of a tenant from a property traditionally has not
been regarded as a punishment. Thus, tenants have been removed
for all sorts of reasons, e.g., someone else will pay more money
for the lease, and, as we have indicated, tenants can be removed
under the Anti-Eviction Act in circumstances that could not
possibly be regarded as punitive. Finally, subsection 61.1n
passes the objective purpose analysis considering the measure's
"deterrent and salutary" purposes.
          As we set forth above, Artway indicated that severe
effects can lead to a measure being regarded as a punishment.
Taylor argues that the effects on him from being removed will be
extremely severe and we believe that he argues that we should
consider the case on an as applied basis for exactly that reason.
As we also have indicated, we have taken into account his
circumstances in deciding this matter. Nevertheless, we find
that they are not determinative. We reiterate that the Supreme
Court in Ursery stated that "for Double Jeopardy purposes we have
never balanced the value of property forfeited in a particular
case against the harm suffered by the Government in that case."
Ursery, 116 S.Ct. at 2145. Thus, we conclude that for double
jeopardy purposes the loss of a lease should be regarded as a
permissible effect. This result is hardly surprising; if the
termination of social security benefits, which can be critical to
a disabled or elderly person, is not a punishment then why should
the loss of a lease be a punishment? See Flemming v. Nestor, 363
U.S. 603, 80 S.Ct. 1367 (1960).
          Up until this point in our opinion we have assumed the
applicability of Artway. That assumption, however, may not be
correct. Artway dealt with a registration law. But, following
Artway, we decided Various Computers and held that the civil
forfeiture there was not punishment and thus was not precluded by
the Double Jeopardy Clause notwithstanding the claimant's earlier
prosecution for the offense which led to him acquiring possession
of the property to be forfeited. Then, in Ursery, the Supreme
Court held that civil forfeitures generally do not constitute
punishment for purposes of the Double Jeopardy Clause. Ursery,
116 S.Ct. at 2138. In Taylor's brief, which he filed before the
Court filed its opinion in Ursery, he goes to great lengths to
argue that a judgment of eviction against him would result in a
forfeiture. Furthermore, he points out that the Supreme Court of
New Jersey has said that a "forfeiture is in the nature of a
penalty." Lehigh Valley R.R. Co. v. Chapman, 171 A.2d 653, 660
(N.J. 1960).
          Yet, the Supreme Court of New Jersey's characterization
of a forfeiture as a penalty is not controlling in a Fifth
Amendment double jeopardy analysis. For that analysis we look to
the opinions of the Supreme Court of the United States which
court in Ursery indicated that a civil forfeiture is not
punishment. Thus, Taylor's characterization of the loss of his
lease as a forfeiture is counterproductive. Of course, if Urserycontrols
this case, then since civil forfeitures categorically
are excluded from being punishment, our Artway analysis is
overinclusive.
          Instead, under Ursery we need ask merely whether the
legislature intended that eviction proceedings under subsection
61.1n to be criminal or civil and whether the proceedings are so
punitive in fact that they may not be viewed as civil regardless
of the legislature's intent. See Ursery, 116 S.Ct. at 2147.
Clearly, an eviction is a civil proceeding, and, for the reasons
we already have set forth and particularly for the historical
reason that evictions are not punitive as they frequently are not
dependent on a demonstration that the tenant was culpable, we
conclude that an eviction should be viewed as civil in nature.
Nevertheless, we do not decide whether the forfeiture involved
here is governed by Ursery for double jeopardy purposes because,
as we have explained, even under Artway Taylor's double jeopardy
argument fails. We recognize, however, that arguably Ursery is
distinguishable from this case as it involved in rem forfeiture
proceedings whereas the state eviction proceeding against Taylor
is in personam.
          We also note an inconsistency in Taylor's position
which undermines his double jeopardy argument. Taylor concedes
that subsection 61.1n legitimately could be applied against a
tenant using an apartment to deal drugs. Yet one may wonder why
it would follow that a drug dealer who had been prosecuted
criminally and punished could be evicted under subsection 61.1n
without the eviction constituting punishment under Taylor's
analysis. In other words, an eviction under subsection 61.1n
either is or is not a punishment and the fact that the tenants
being evicted are not equally culpable should not matter in a
double jeopardy analysis.
          Taylor argues that part of his punishment will be the
loss of his rent subsidy. It is not clear, however, whether the
loss will result from the eviction or from his inability to
obtain a subsidy for a different premises. If his loss of the
subsidy stems from an action of the federal government, i.e., the
Department of Housing and Urban Development, by reason of the
dual sovereignty rule the loss may not be germane here to our
double jeopardy analysis. See United States v. Pungitore, 910
F.2d 1084, 1105-07 (3d Cir. 1990), cert. denied, 500 U.S. 915,
111 S.Ct. 2009 (1991). However, we do not rest our opinion on
this point and for purposes of this appeal we treat his loss of
subsidy as part of his claim that the eviction proceedings in the
state court are punishing him.
          In closing our discussion of the Double Jeopardy
Clause, we think it useful to state an overview of the case which
we think demonstrates how inappropriate it would be to uphold
Taylor's double jeopardy argument. First, the eviction
proceeding is completely independent of the criminal justice
system, as the Housing Authority, not a prosecutor, is bringing
the state proceedings. Second, the Housing Authority is pursuing
a traditional civil remedy which both public and private
landlords seek. Indeed, Taylor concedes that he could not have
brought this action if his landlord had been a private party as
the Double Jeopardy and Excessive Fines Clauses would not apply
to such an entity. Br. at 19. Third, proceedings under
subsection 61.1n, unlike the registration procedure in Artway,
are not mandatory as the subsection does not require that a
landlord seek to evict a tenant who is convicted of a drug
violation. Fourth, the landlord could require in its lease that
the tenant not violate the drug laws on its premises and if the
tenant violated the agreement the landlord could seek his
eviction. N.J. Stat. Ann. § 2A:18-61.1d and e.
          Finally, one reasonably might ask why should a tenant
benefit from conviction by using it as a shield against a
landlord's attempt to protect its property and the other tenants?
It would be strange, indeed, if the landlord could not seek to
evict a tenant for drug activities because a prosecutor had
brought criminal proceedings against the tenant for the
activities. Rather, one would suppose that the landlord could
use the conviction as evidence to demonstrate that the tenant had
violated the lease. Indeed, as we pointed out above, a landlord
who does not seek such eviction might run the risk of forfeiting
his property to the state or federal government.
          Finally, we reject Taylor's excessive fine argument.
As the Supreme Court explained in Austin, a forfeiture can
violate the Excessive Fines Clause only if the forfeiture was a
punishment. 509 U.S. at 610, 113 S.Ct. at 2806. The test for
whether a civil in rem forfeiture constitutes punishment under
the Excessive Fines Clause of the Eighth Amendment is slightly
different from the one employed in our double jeopardy clause
analysis; thus, even though the state proceeding against Taylor
is in personam, Taylor has less of a burden in meeting the
Excessive Fines Clause standard.
          In Austin, the Supreme Court held that a forfeiture
would constitute punishment if it did not solely serve a remedial
purpose, i.e., that it only can be explained as also serving in
part to punish. Id. at 610, 113 S.Ct. at 2806. With this in
mind, the Court undertook a two-part inquiry: "Whether, at the
time the Eighth Amendment was ratified, forfeiture was understood
at least in part as punishment and whether forfeiture . . .
should be so understood today." Id. at 610-11, 113 S.Ct. at
2806. The Supreme Court held that for purposes of the Excessive
Fines Clause, a "forfeiture generally and statutory in remforfeiture in
particular historically have been understood, at
least in part, as punishment." Id. at 618, 113 S.Ct. at 2810.
The second prong of the Artway test incorporates the excessive
fines clause inquiry under Austin.
          Despite his lesser burden, Taylor has not proved that
the forfeiture here constitutes punishment under the Excessive
Fines Clause. As we explained in our double jeopardy analysis
under Artway, we find that the provisions of the Anti-Eviction
Act and the legislative intent contradict any understanding of
Taylor's forfeiture of his tenancy as punishment. Accordingly,
we cannot say that the forfeiture here served in part to punish.
See also Various Computers, 82 F.3d at 508.




                         III.   CONCLUSION


          For the foregoing reasons we will affirm the judgment
of the district court entered on November 29, 1995.
