                                                                                         07/07/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                           Assigned on Briefs June 1, 2017

  BRUCE THURMAN v. TENNESSEE DEPARTMENT OF SAFETY AND
                   HOMELAND SECURITY

               Appeal from the Chancery Court for Davidson County
                 No. 16-0337-IV    Russell T. Perkins, Chancellor
                     ___________________________________

                           No. M2016-02215-COA-R3-CV
                       ___________________________________


The owner of a truck was charged with driving on a revoked license, and the Tennessee
Department of Safety and Homeland Security initiated a proceeding to forfeit the truck.
An administrative hearing was held, which resulted in an order that the truck be forfeited.
The owner sought review of the forfeiture in Chancery Court pursuant to the
Administrative Procedures Act, and the court affirmed the forfeiture. Finding that the
seizure of the truck constituted an excessive fine in violation of the United States and
Tennessee Constitutions, we reverse the judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed;
                                 Case Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Bruce Thurman, Dyer, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Blumstein, Solicitor
General; and Brooke K. Schiferle, Assistant Attorney General, for the appellee,
Tennessee Department of Safety and Homeland Security.

                                       OPINION

I. FACTS AND PROCEDURAL HISTORY

       On April 27, 2015, Sergeant David Paschall of the Dyer Police Department
stopped Mr. Bruce Thurman for speeding; in the course of the stop, Sergeant Paschall
requested that Mr. Thurman produce his driver’s license and vehicle registration. Mr.
Thurman was unable to do so but gave his name and other information, which Sergeant
Paschall relayed to the central police department for investigation. The inquiry revealed
that Mr. Thurman’s license had been revoked by the State of Illinois on May 12, 2013,
following a conviction for driving under the influence of alcohol. Sergeant Paschall
arrested Mr. Thurman and charged him with driving on a revoked license, third offense.
On April 30 a warrant authorizing the initiation of a forfeiture proceeding was issued, and
his truck was seized.

       Mr. Thurman timely filed a petition for a hearing on the forfeiture with the
Tennessee Department of Safety (“TDS”), in accordance with the procedures at
Tennessee Code Annotated section 40-33-201, et seq. A hearing was held before an
administrative judge, who issued an Initial Order upholding the seizure of Mr. Thurman’s
truck and ordering its forfeiture to the Dyer Police Department. Mr. Thurman filed a
petition for reconsideration; the administrative judge did not act on the petition, and it
was deemed denied pursuant to Tennessee Code Annotated section 4-5-317(c). Mr.
Thurman appealed the Initial Order to TDS in accordance with Tennessee Code
Annotated section 4-5-315, and a Final Order was entered on February 23, 2016, by the
Commissioner’s designee affirming the initial order and forfeiture.

       On April 6, 2016, Mr. Thurman filed a petition in Davidson County Chancery
Court seeking judicial review of the TDS Final Order pursuant to Tennessee Code
Annotated section 4-5-322. In due course, the administrative record was filed, and on
October 11, 2016, the court entered a Memorandum and Final Order, denying the petition
and affirming the forfeiture. Mr. Thurman appeals, articulating these issues:

        1. The State’s seizure of claimant’s vehicle is a violation of the Eighth
        Amendment of the United States Constitution.

        2. The State’s argument that claimant’s raising of constitutional arguments
        were time barred is invalid.1

II. STANDARD OF REVIEW

       Tennessee Code Annotated section 4-5-322 allows for judicial review of agency
decisions in chancery court; appeals to this Court are allowed pursuant to section 4-5-
323. This Court, as well as the trial court, reviews the Commission’s decision under the
narrowly defined standard of review set forth at section 4-5-322(h):

1
  TDS argued before the administrative judge that Mr. Thurman should have raised the constitutional
argument by appropriate pleading prior to the forfeiture hearing; the administrative judge disregarded the
argument and addressed the issue. TDS has not appealed the ruling in this regard; consequently,
inasmuch as Mr. Thurman was permitted to make the argument, we will not address this issue.

                                                    2
        The court may affirm the decision of the agency or remand the case for
        further proceedings. The court may reverse or modify the decision if the
        rights of the petitioner have been prejudiced because the administrative
        findings, inferences, conclusions, or decisions are:

        (1) In violation of constitutional or statutory provisions;
        (2) In excess of the statutory authority of the agency;
        (3) Made upon unlawful procedure;
        (4) Arbitrary or capricious or characterized by abuse of discretion or clearly
        unwarranted exercise of discretion; or
        (5)(A) Unsupported by evidence that is both substantial and material in the
        light of the entire record.
           (B) In determining the substantiality of evidence, the court shall take into
           account whatever in the record fairly detracts from its weight, but the
           court shall not substitute its judgment for that of the agency as to the
           weight of the evidence on questions of fact.

We review the factual findings of the Commission under the limited provisions of
Tennessee Code Annotated section 4-5-322, and we review matters of law de novo with
no presumption of correctness. Davis v. Shelby Cnty. Sheriff’s Dep’t, 278 S.W.3d 256,
264 (Tenn. 2009) (citing Tenn. R. App. P. 13(d); Cumulus Broad, Inc. v. Shim, 226
S.W.3d 366, 373 (Tenn. 2007)).

III. ANALYSIS

       Tennessee Code Annotated section 55-50-504(a)(1) makes driving a vehicle on a
revoked license a Class B misdemeanor; section 55-50-504(h)(1) authorizes the forfeiture
of the vehicle being driven when the driver’s privileges were originally revoked for
driving under the influence of an intoxicant. Mr. Thurman does not contest that he was
driving while his license was revoked; he argues that the forfeiture of his truck
constituted an excessive fine, in violation of the Eighth Amendment to the United States
Constitution.2

      In Stuart v. State Department of Safety, 963 S.W.2d 28 (Tenn. 1998), the
Tennessee Supreme Court determined that the excessive fines clause applied to civil in
rem forfeitures; the court established a proportionality test, in which the value of the


2
  Article I, section 16 of the Tennessee Constitution, which also prohibits the imposition of an excessive
fine as punishment for a crime, is coextensive with the Eighth Amendment. State v. Taylor, 70 S.W.3d
717, 720 (Tenn. 2002) (citing Stuart v. State Dep’t of Safety, 963 S.W.2d 28, 34 (Tenn. 1998)).

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forfeited property is compared to the gravity of the criminal conduct to determine
whether forfeiture of the property at issue constitutes an excessive fine. The court stated:

          [A]ny analysis under the excessive fines clause must include a
          proportionality test. Although the multifactored analysis is described in
          various ways, courts consistently utilize the following factors:

                  (1) the harshness of the penalty compared with the gravity of the
                  underlying offense;
                  (2) the harshness of the penalty compared with the culpability of the
                  claimant; and
                  (3) the relationship between the property and the offense, including
                  whether use of the property was (a) important to the success of the
                  crime, (b) deliberate and planned or merely incidental and fortuitous,
                  and (c) extensive in terms of time and spatial use.
          No single factor is dispositive.

Id. at 35 (internal citations omitted).

       The proportionality test was applied by this Court in Hawks v. Greene, No.
M1999-02785-COA-R3-CV, 2001 WL 1613889 (Tenn. Ct. App. Dec. 18, 2001), a case
with facts substantially similar to those at bar. In that case, Ms. Hawks’ vehicle had
been forfeited after she had been stopped while driving when her license was revoked as
a result of a DUI conviction; as in the case before us, she had completed the one year
revocation period imposed for the DUI conviction, but had not had her driving privileges
restored at the time she was stopped. Id. at *3. The court discussed at length the elements
of the proportionality test, the nature of the offense of driving on a revoked license, and
the culpability of Ms. Hawks, concluding that the forfeiture of the vehicle was “grossly
disproportionate to the gravity of the conduct which was the basis of the forfeiture.” Id.
at *13.3 With respect to Ms. Hawks’ culpability, the court considered relevant the fact
that Ms. Hawks was eligible for reissuance of her driving privileges at the time she was
stopped, stating: “[s]he admittedly drove at a time when her license was still in revoked
3
    The court explained further:

          The offense was a midrange misdemeanor, subject to a maximum fine of $1,000; the
          conduct was neither violent nor dangerous to the public; other vehicle and licensing
          related offenses, carrying more severe penalties, do not subject offenders to the risk of
          forfeiture of their vehicles.

Hawks, 2001 WL 1613889,. at *13. See also Judge Koch’s concurring opinion in Hawks, 2001 WL
1613889, at *17.

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status, but she did not violate the one year provision. She is, therefore, most culpable of
failing to comply with the requirements for obtaining a new license.” Id. at 16. The
court concluded that the forfeiture of her van was an excessive fine. Id. at 17.

       In our consideration of this issue, we note first that the Administrative Judge did
not make specific findings of fact pertinent to the proportionality issue; the only reference
to Mr. Thurman’s excessive fine concern was the following statement contained in a
footnote at the end of the Conclusions of Law portion of the Initial Order:

       The Claimant argued that forfeiture of his truck would violate the Eighth
       Amendment’s prohibition against excessive fines. In support of his
       argument, the Claimant referred to the Tennessee Court of Appeals
       decision in the case of Marie Hawks v. Michael C. Greene, Commissioner
       of Tennessee Department of Safety, 2001 WL 1613889 (Tenn. Ct. App.,
       2001). However, he failed to offer any proof that his situation was
       sufficiently similar to the facts of the Hawks case to warrant a similar result
       upon application of a proportionality test.

Similarly, the Final Order addressed the concern in a footnote:

       Claimant’s 8th Amendment claim, which was renewed in this appeal, was
       considered by the administrative judge and rejected.

In its Memorandum and Final Order, the trial court stated the following relative to the
issue:

       Petitioner argued that the forfeiture of his vehicle in this case amounts to an
       excessive fine. The Court determines that the Department did, albeit in a
       footnote, address the excessive fine issue. Further, this Court finds that
       under the circumstances presented in this case, where it is clear that
       Petitioner’s driver’s license was revoked for DUI, he knew it was revoked,
       and he drove, posing a serious public safety concern, forfeiting the 2002
       vehicle was not grossly disproportionate or excessive.

       Our review of Mr. Thurman’s contention is made difficult by the failure of the
administrative judge to address the evidence in the record, testimonial and otherwise,
bearing on this issue. The evidence in the record does not support the administrative
judge’s conclusory statement that the facts in this case were “not sufficiently similar to
the facts of the Hawks case to warrant a similar result upon application of a
proportionality test.” The administrative judge did not discuss the facts relied upon in
making the statement or analyze the evidence in the context of the proportionality test.
The determination by the trial court that forfeiture was not excessive is likewise

                                             5
conclusory, and the court does not explain the evidentiary or factual basis of its holding
or discuss the other elements of the proportionality test.

       One element of the proportionality test is the harshness of the penalty compared
with the gravity of the underlying offense. Significant to this element is Mr. Thurman’s
insistence that, due to his particular circumstances, the forfeiture of his truck was a harsh
measure; neither the administrative judge nor the trial court made factual findings or
determinations as to the hardship Mr. Thurman would suffer as a result of the forfeiture.

       In Stuart, when discussing the harshness of the penalty, the court stated:

       When determining the harshness of the penalty imposed under the first and
       second factors of the excessive fines analysis, courts should consider the
       monetary value of the property forfeited, particularly in light of the
       claimant’s financial resources. A forfeiture is less likely to be excessive
       when the claimant has the financial ability to replace the property without
       undue hardship. Conversely, a forfeited vehicle may be worth little, but
       undue hardship may still result if the claimant’s family cannot afford to
       replace it and has no other means of transportation.

Stuart, 963 S.W.2d at 36.

       Relative to these considerations, Mr. Thurman valued his truck at $8,500, the
amount he paid for the vehicle; this value is unrebutted and is supported by the record.
He also testified as to the hardship he has endured due to the seizure of his truck and the
necessity for his vehicle:

       I have not been able to gain employment since then, because now I don’t
       have any way to work. I don’t have no way to work. So, I have been
       unemployed the last six months.

        As we consider the evidence relative to the culpability and gravity of the offense
factors, we note that the record is not clear as to the basis of TDS’ assertion that Mr.
Thurman’s truck was eligible for forfeiture. The record contains a copy of Mr.
Thurman’s Illinois driving record, which shows his conviction for a DUI on April 1,
2013, and shows that his license was revoked on May 12, 2013; the driving history does
not disclose any prior convictions of driving on a revoked license. Also, while the record
shows that Sergeant Paschall charged Mr. Thurman with a third offense of driving on a
revoked license in the arrest warrant and that he stated that Mr. Thurman had two prior
convictions of driving on a revoked license in the affidavit in support of the forfeiture,
there is no evidence in the record of any convictions for driving on a revoked license
prior to Mr. Thurman being charged by Sergeant Paschall on April 27, 2015. Pursuant to
Tennessee Code Annotated section 55-50-504(a)(1), driving on a revoked license is a
                                             6
Class B Misdemeanor, while pursuant to section 55-50-504(a)(2), a second or subsequent
violation is a Class A misdemeanor. Under Tennessee Code Annotated section 40-35-
111(e)(2) Class B misdemeanors are punishable by imprisonment for no more than six
months, a fine of $500, or both;4 pursuant to section 40-35-111(e)(1), Class A
misdemeanors are punishable by imprisonment of up to 11 months, 29 days or a fine not
exceeding $2,500, or both. The number of convictions matters because they affect the
potential penalties which, in turn, bear on the culpability and gravity of the offense
factors. See Hawks, 2001 WL 1613889 at *10-13.

       There is evidence that Mr. Thurman was charged with driving on a revoked
license which led to the forfeiture of his truck; to the extent pertinent to this analysis, the
record does not show that he has been convicted of the offense.5 At the time he was
stopped, Mr. Thurman had completed the period of mandatory suspension of his driving
privileges necessitated by his DUI conviction and was eligible to have his privileges
restored.

       As respects the factor measuring the relationship of the property forfeited to the
offense, it is clear that Mr. Thurman was driving the truck when he was stopped. We do
not consider this factor dispositive of the proportionality issue.

       The proportionality test compares the value of the forfeited property to the gravity
of the criminal conduct. The evidence in the record before us shows that, when Mr.
Thurman was stopped, the value of his truck was $8,500; that his driving privileges had
been revoked as a result of being convicted of driving under the influence; that he was
eligible to have his driving privileges reinstated; and that he was not involved in any
other criminal conduct. Applying the analytical framework and rationale of the court in
Hawks v. Greene, we are led to the conclusion that, under the circumstances presented,
the forfeiture of Mr. Thurman’s truck was an excessive fine.



4
  Tennessee Code Annotated section 55-50-504(a)(1) raises the potential fine to $1,000 where the
revocation of driving privileges is to a conviction for, inter alia, driving while intoxicated.
5
    Tennessee Code Annotated section 55-50-504(h)(2) provides:

          (2) For purposes of clarifying this subsection (h) and consistent with the overall remedial
          purpose of the asset forfeiture procedure, a vehicle is subject to seizure and forfeiture
          upon the arrest or citation of a person for driving while the person’s driving privileges are
          cancelled, suspended or revoked. A conviction for the criminal offense of driving while
          the person’s driving privileges are cancelled, suspended or revoked is not required.

In accordance with the statute, we do not consider the matter pertinent to the question of whether the
seizure was authorized by law; we do consider it pertinent in the proportionality analysis.

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IV. CONCLUSION
       For the reasons set forth above, we reverse the judgment of the trial court, vacate
the order of forfeiture, and remand the case to the trial court for further proceedings
consistent with this opinion.




                                                RICHARD H. DINKINS, JUDGE




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