1996 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Taylor v. Secretary HUD" (1996). 1996 Decisions. Paper 7.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/7
 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.