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. e du/thir dc ir c uit_1996/7UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-5873

SILAS TAYLOR, JR.,

Appellant

v.

HENRY CISNEROS, in his capacity as Secreta ry of the United States Department of Housing and Urban Development; BOARD OF COMMISSIONER S 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, Circu it Judges

(Filed: December 6, 1996)

John N. Ukegbu Gregory G. Diebold (argued) Hudson County Legal Services Corporation

574 Newark Avenue Jersey City, NJ 073 06

Attorneys for Appellant

Jeanette M. Samra ( argued) Fitzpatrick & Water man 400 Plaza Drive

P.O. Box 3159 Secaucus, NJ 07096

Attorneys for appellee Board

of Commissione rs of the Housing Authority of BayonnePeter Verniero

Attorney General Cheryl R. Clarke (a rgued) Deputy Attorney Gen eral Joseph L. Yannotti Assistant Attorney General

Office of the Attor ney General of New Jersey Richard J. Hughes J ustice 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 j udgment 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 hi s tenancy and seeking his eviction in a proceeding in the New Jer sey Superior Court, predicated on his convictions on pleas of gu ilty in a New Jersey municipal court to possession of drug paraph ernalia on the authority's premises, violated certain of his const itutional rights. While Taylor originally also sought relief against the secretary of the United States Department of Housin g and Urban Development, the issues relating to the secretary a re not involved on this appeal and the secretary is no lon ger a party to the case. The State of New Jersey has intervened p ursuant to 28 U.S.C. § 2403(b) supporting the position of the Hou sing Authority. This appeal raises the question of whet her the Housing Authority is barred from seeking Taylor's e viction 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 Fine s Clause of the Eighth Amendment.

I. BACKGROUND AND PROCEDURAL HISTORY

The district court set forth the backgrou nd 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 an d operated by the Housing Authority. The Department of Housing a nd Urban Development subsidizes his rent so that he pays onl y $125 per month for an apartment with a fair monthly rental v alue of $706. Taylor is both hearing and speech impaired and his sole income is a monthly social security disability payment of $49 7.Consequently, he cannot afford to pay market rent a nd if evicted

from the Bayonne apartment will have no place to li ve and will end up on the streets homeless. On October 20, 1992, Taylor pleaded guilt y to possession of narcotics paraphernalia in the Bayonn e Municipal Court, a violation of the Comprehensive Drug Reform Act of 1987, N.J. Stat. Ann. §§ 2C:35-1 et seq. (West 1995). Ta ylor committed this offense on the property of the Housing Authori ty in which he resides, though not in his particular apartment. O n 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 Aut hority rather than on its property. The Housing Authority and th e State do not contend either that Taylor possessed drugs on the H ousing Authority property or that he distributed drugs. T he 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, the y agree that it was similar to that imposed on the second convic tion. New Jersey is quite protective of tenants in residential units and has adopted an Anti-Eviction Act, applicable to both public and private housing, deli neating the

circumstances in which a tenant can be removed from a rental unit. N.J. Stat. Ann. § 2A:18-61.1 (West Supp. 199 6). One such

circumstance is where the tenant has been convicted of or pleaded guilty to an offense under the Comprehensive Drug R eform Act of 1987, N.J. Stat. Ann. § 2C:35-1 et seq., involving possession of drug paraphernalia "within or upon the leased premi ses or the building or complex of buildings and land appurtena nt 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 c ategory. Thus, without question, the Housing Authority may e vict Taylor under the Anti-Eviction Act if the New Jersey court s apply the

act as it is written. Pursuant to the Anti-Eviction Act, on Nov ember 29, 1994, the Housing Authority served notice on Taylor that it was requiring his removal from its premises. Taylor re sponded 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 be en sentenced in the municipal court for possession of the drug p araphernalia

and that his eviction would violate the Excessive F ines Clause of the Eighth Amendment. While he also claimed that h is eviction

would violate the Due Process Clause of the Fourtee nth Amendment, he does not raise that contention on this appeal. The Housing Authority then instituted a summary dispossession p roceeding in the Superior Court of New Jersey, Hudson County, La w Division, Special Civil Part, against Taylor seeking his evic tion. The state court, however, on Taylor's motion, has staye d those proceedings pending the disposition of this case in the federal courts. As we have indicated, the State of New Jer sey has intervened on behalf of the Housing Authority. Inasmuch as the facts germane to this cas e are not indispute, the district court decided the case on cro ss-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 circum stances of Taylor's convictions and economic misfortune." Tay lor, 913 F. Supp. at 318. The court concluded that inasmuch as the New Jersey state courts had not applied the facts to th e circumstances of this case "it [was] inappropriate, from a prudential and jurisdictional perspective, to consi der this an 'as applied' challenge." Id. Thus, the court trea ted the case as a facial challenge to the Anti-Eviction Act. Id

. The court then stated that "[s]tate actio n violates neither the Double Jeopardy Clause nor the Excessiv e Fines Clause unless it constitutes punishment." Id. at 319. Th us, 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 o r criminal, i.e., remedial or punitive, and that the court must "undertake 'a particularized assessment of the penalty imposed an d the purposes that the penalty may fairly be said to serve.'" Id . (quoting United States v. Halper, 490 U.S. 435, 448, 109 S.C t. 1892, 1901 (1989)). The court then cited Austin v. United Sta tes, 509 U.S. 602, 113 S.Ct. 2801 (1993), for the proposition "th at 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 pointe d 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 cou rt also noted that because the legislature placed subsection 61.1 n 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 proc eedings under subsection 61.1n would not be punitive merely becau se of their impact on Taylor.

The court also held that the Excessive Fi nes Clause could not apply because the proceedings under subse ction 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 distr ict 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' contentionsTaylor argues that the district court err ed in treating

the action as a facial attack on subsection 61.1n. He points out that the Anti-Eviction Act upon its adoption in 197 4 "'dramatically changed the rights of landlords and owners by prohibiting the ejectment of residential tenants or lessees simply because their tenancies or leases had expire d.'" Br. at 8 (quoting Chase Manhattan Bank v. Josephson, 638 A.2 d 1301, 1306 (N.J. 1994)). He indicates that in 1990 the legisl ature added

subsection 61.1n to the Anti-Eviction Act and he th en forthrightly acknowledges that "based on [his] Febr uary, 1994, municipal court conviction for possession of drug p araphernalia, and under [subsection 61.1n, he] is subject to evic tion from his apartment." Br. at 8. Taylor next explains that he does not cha llenge the constitutionality of subsection 61.1n in general, b ut rather argues that his eviction would violate the Double J eopardy and Excessive Fines Clauses. Distinguishing between fa cial and as applied challenges, he contends that this case invo lves an as applied challenge because there is a difference bet ween situations in which a party claims that a statute i n all its applications is unconstitutional and cases in which a party acknowledges that a statute might be applied consti tutionally in some circumstances but is unconstitutional as appli ed 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 no t succeed in a facial challenge to the statute." Br. at 11. He t hen explains

that: there are undoubtedly many situations whe re a tenant could legitimately be evicted for drug related activities without offending the Constitution - using the apartment to dea l drugs, for example. But more importantly

, the very nature of the plaintiff's challe nge implicates consideration of individual

circumstances. A fine cannot be 'excessi ve' or an eviction 'punitive' absent an analy sis of the unique circumstances in which the individual reposes. Thus, the Constituti onal violations complained of are simply not susceptible to facial attack.

Id. at 11. Taylor then continues that while "it ma y be inappropriate to consider an 'as-applied' challenge to a statute where there is ambiguity in the statute itself or w here it is unclear that the statute applies to plaintiff's con duct, such is not the case here." Id. at 12. Rather, Taylor ack nowledges that subsection 61.1n as written provides for his evicti on. Taylor argues that application of subsect ion 61.1n to him would constitute punishment because, notwithsta nding theremedial 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 excessi ve fine because his offenses, which he does not seek "to mi nimize,"

nevertheless were "minor in nature." Br. at 23. F urthermore, 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 b etween the fair market rental value of his apartment, $706 per month, and his rent of $125. He argues that he could remain i n the apartment for ten years or 20 years so that his evi ction could cause him a loss of more than $100,000 in subsidies

. He then argues that his eviction would vi olate the Double Jeopardy Clause because he was punished in t he Bayonne Municipal Court for his drug paraphernalia offenses . He emphasizes that the municipal court prosecutions we re in the name of the State of New Jersey and that the Housing Aut hority should be regarded as a state agency. He contends that hi s eviction would not serve a remedial purpose, and even if it did, it should be regarded as a punishment for double jeopardy pur poses because it is a remedy disproportionate to his conduct. The State of New Jersey in its original b rief argues that the district court properly considered Taylor' s challenge to subsection 61.1n on a facial basis because, notwith standing his contention that he was seeking relief only for hims elf, "the

decision in this matter would affect all tenants wh o are subject to" subsection 61.1n. Br. at 9. On the merits, th e State

contends that the Anti-Eviction Act is intended to protect

tenants and that subsection 61.1n furthers this rem edial 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 fr om 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. 1 996), as the then most recent authoritative precedent defining w hat constitutes punishment for double jeopardy, ex post facto, and due process purposes. It points out that under Art way a measure must pass three tests so as not to constitute punis hment: 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 cons titute punishment. Consequently, in the State's view subs ection 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 (19 96), 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 app lied inthis case. The State argues that we should affirm because, under

Ursery, Taylor is not being punished by the evictio n proceedings for either double jeopardy or excessive fines purpo ses. The Housing Authority joins in the position of the Stat e.

b. Our disposition As we have explained, the parties dispute whether the district court properly considered the case on a fa cial as opposed to an as applied basis. While Taylor advan ces the as applied argument primarily in connection with his e xcessive fines claim, he also raises it with respect to his double jeopardy argument. We, however, will not linger on the dist inction between a facial and an as applied challenge becaus e we find that subsection 61.1n is constitutional as applied to Ta ylor. In three recent cases the Supreme Court a nd this court have had occasion to consider double jeopardy and e xcessive 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 enforc ement authorities upon completion of their sentences. Ar tway involved double jeopardy, ex post facto, and bill of attaind er challenges to the law but did not implicate the Excessive Fine s 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 puni shment, our inquiry with respect to the registration issue is a t an end." Artway, 81 F.3d at 1253. After a comprehensive ana lysis of numerous precedents, in Artway "we develop[ed] a mu lti-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 effe cts." Artway,

81 F.3d at 1254. Under the first Artway test, a law will p rovide for punishment if the legislature's subjective intentio n 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 h as an objective purpose to punish. Id. The objective pu rpose analysis has three parts: first, can the law be explained s olely by a remedial purpose; if not it is punishment. Second, if the law's objective purpose is remedial does an historical an alysis show that the measure traditionally has been regarded as punishment; if so then the measure will be punishment unless it s text or legislative history demonstrates that the measure i s not punishment. The third component of the objective p urpose analysis considers both the measure's "deterrent an d salutary purposes." Id. at 1263. In Artway we also held that even if a mea sure 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 punishmen t. Id. at 1263. The effects test, however, is difficult to a pply because the cases do not establish a clearly defined line d istinguishingbetween measures that are or are not punishment. I d. at 1266.

Thus, in Artway we pointed out that while imprisonm ent and revocation of citizenship constitute punishment, lo ss 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 th ree situations is applied feels that he or she has been punished. Within a few weeks of our opinion in Artw ay 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 car ds. The government then instituted a civil in rem forfeitur e against the property the claimant had acquired by the crime eve n though the

court had ordered the claimant to make restitution to the store where he acquired the property. We rejected the cl aimant's double jeopardy and excessive fine arguments becaus e we held that the forfeiture of the property was not punishment e ven though in a sense the claimant already was paying for the pro perty through making restitution. Id. at 589. Because the prope rty was the fruit of the crime, the claimant "had no legal righ ts 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 forfe itures involved in that case and civil forfeitures general ly, "do not constitute 'punishment' for purposes of the Double Jeopardy Claim." Id. at 2138. Ursery is particularly signi ficant 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 re lies. In Halper the Court found that a treble damages action under the False Claims Act against a person already criminall y convicted for the conduct was punitive and therefore was barr ed by the Double Jeopardy Clause. The Court distinguished Ha lper from the situations before it in Ursery as Ursery involved c ivil forfeitures rather than civil penalties. Ursery, 1 16 S.Ct. at 2144. The Court explained that it "is difficult to see how the rule of Halper could be applied to a civil forfeitu re." Id. at 2145. In a passage, significant for our purposes i n view of Taylor's emphasis of the value of the subsidized le ase that he would lose in an eviction, the Court in Ursery said that, unlike in civil penalty cases, "for Double Jeopardy purpos es 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, inf orm our result. We analyze the case for double jeopardy pu rposes 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 harm onize a body of doctrine that has caused much disagreement in th e federal and state courts. We realize[d], however, that our syn thesis is by no means perfect. Only the Supreme Court knows whe re all thepieces belong." Artway, 81 F.3d at 1263. This con tinues to be

true and we do not attempt here to refine the synth esis in Artway. Instead, we determine whether the applicat ion of

subsection 61.1n in this case violates the Double J eopardy and Excessive Fines Clauses and we say with some degree of confidence

that it does not. Our analysis requires us to review the An ti-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 re lated to conduct of the tenant, e.g., the failure to pay ren t, 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 buildin g 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 t o deny a landlord the right to terminate a lease when its pr operty is being used for purposes unlawful under the New Jers ey Comprehensive Drug Reform Act of 1987. Yet subsect ion 61.1n does not require that the landlord bring an action to re move a tenant who violates the drug law. Thus, subsection 61.1n leaves the decision on whether to remove a tenant to the judgm ent 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 no t have an

Anti-Eviction Act so that landlord-tenant relations hips were regulated solely by agreement, a landlord and tenan t could agree

in their lease for the removal of a tenant who viol ated the drug laws on the landlord's premises. See Chase Manhatt an Bank v. Josephson, 638 A.2d at 1306 ("At common law, the te rms of the tenancy controlled the right of the owner or landlo rd to eject the tenant, whether that tenancy was a term of year s or a periodic tenancy."); 25 Fairmont Ave., Inc. v. Stoc kton, 326 A.2d 106, 110 (N.J. Super. Ct. Law Div. 1974) (before An ti-Eviction Act, common law governed the substantive terms of l eases). Furthermore, we do not doubt that the landlord coul d 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. Gon zalez, 667 A.2d 684, 690 (N.J. 1995). In the circumstances, i t would be far-fetched to hold that the legislature intended t o punish a tenant violating the drug laws by the enactment of subsection 61.1n. To the contrary, inasmuch as the legislatur e authorized, but did not require, the landlord to bring removal proceedings

under subsection 61.1n when the tenant was convicte d of or pleaded guilty to an offense under the drug laws it did not intend to punish tenants by authorizing such procee dings. 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 t enant'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 le ase at thelease's termination, to make certain types of conve rsions of the

property, and for other reasons as well. N.J. Stat . Ann. §§ 2A:18-61.1g, h, i, k. The legislature did not inte nd 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. C onsequently, subsection 61.1n passes the subjective Artway test. Subsection 61.1n plainly passes Artway's objective test. The subsection can be explained solely by th e remedial purpose of allowing the landlord to remove a tenant who is using the landlord's premises for an unlawful purpose. N o landlord should have to suffer the use of its property for u nlawful purposes. Indeed, under both federal and New Jerse y law a

landlord in some circumstances runs the risk of its property being forfeited if it is aware of unlawful drug act ivity on its premises and does not take steps to end that activi ty. 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 o ther tenants that drug activities not be conducted on the premis es. Of course, removal of a tenant from a property traditi onally has not been regarded as a punishment. Thus, tenants have been removed for all sorts of reasons, e.g., someone else will p ay more money for the lease, and, as we have indicated, tenants c an be removed

under the Anti-Eviction Act in circumstances that c ould not possibly be regarded as punitive. Finally, subsect ion 61.1n passes the objective purpose analysis considering t he measure's "deterrent and salutary" purposes. As we set forth above, Artway indicated t hat severe effects can lead to a measure being regarded as a p unishment. Taylor argues that the effects on him from being re moved will be extremely severe and we believe that he argues that we should consider the case on an as applied basis for exactl y that reason. As we also have indicated, we have taken into accou nt his circumstances in deciding this matter. Nevertheles s, we find that they are not determinative. We reiterate that the Supreme Court in Ursery stated that "for Double Jeopardy pu rposes 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 reg arded as a permissible effect. This result is hardly surprisi ng; if the termination of social security benefits, which can be critical to a disabled or elderly person, is not a punishment t hen 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 hav e assumed the applicability of Artway. That assumption, however, may not be correct. Artway dealt with a registration law. Bu t, following Artway, we decided Various Computers and held that the civil forfeiture there was not punishment and thus was no t precluded by the Double Jeopardy Clause notwithstanding the clai mant's earlier prosecution for the offense which led to him acquir ing possession of the property to be forfeited. Then, in Ursery, the Supreme Court held that civil forfeitures generally do not constitutepunishment for purposes of the Double Jeopardy Clau se. Ursery,

116 S.Ct. at 2138. In Taylor's brief, which he fil ed 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 Su preme Court of New Jersey has said that a "forfeiture is in the na ture 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 ch aracterization of a forfeiture as a penalty is not controlling in a Fifth Amendment double jeopardy analysis. For that analy sis we look to the opinions of the Supreme Court of the United Sta tes which court in Ursery indicated that a civil forfeiture i s not punishment. Thus, Taylor's characterization of the loss of his lease as a forfeiture is counterproductive. Of cou rse, if Urserycontrols this case, then since civil forfeitures categorical ly are excluded from being punishment, our Artway anal ysis is

overinclusive. Instead, under Ursery we need ask merely whether the legislature intended that eviction proceedings unde r subsection 61.1n to be criminal or civil and whether the proce edings are so punitive in fact that they may not be viewed as civ il regardless of the legislature's intent. See Ursery, 116 S.Ct. at 2147. Clearly, an eviction is a civil proceeding, and, fo r the reasons we already have set forth and particularly for the historical reason that evictions are not punitive as they freq uently are not dependent on a demonstration that the tenant was cu lpable, we

conclude that an eviction should be viewed as civil in nature. Nevertheless, we do not decide whether the forfeitu re involved here is governed by Ursery for double jeopardy purp oses because, as we have explained, even under Artway Taylor's do uble jeopardy argument fails. We recognize, however, that arguab ly Ursery is distinguishable from this case as it involved in re m forfeiture proceedings whereas the state eviction proceeding a gainst Taylor is in personam. We also note an inconsistency in Taylor's position which undermines his double jeopardy argument. Tay lor concedes that subsection 61.1n legitimately could be applied against a tenant using an apartment to deal drugs. Yet one m ay wonder why it would follow that a drug dealer who had been pro secuted criminally and punished could be evicted under subs ection 61.1n without the eviction constituting punishment under Taylor's analysis. In other words, an eviction under subsec tion 61.1n either is or is not a punishment and the fact that the tenants being evicted are not equally culpable should not m atter 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 inab ility to obtain a subsidy for a different premises. If his loss of the subsidy stems from an action of the federal governm ent, i.e., the Department of Housing and Urban Development, by rea son of the dual sovereignty rule the loss may not be germane h ere to our double jeopardy analysis. See United States v. Pun gitore, 910F.2d 1084, 1105-07 (3d Cir. 1990), cert. denied, 50 0 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 proc eedings in the state court are punishing him. In closing our discussion of the Double J eopardy 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 evic tion proceeding is completely independent of the crimina l justice system, as the Housing Authority, not a prosecutor, is bringing the state proceedings. Second, the Housing Authori ty is pursuing a traditional civil remedy which both public and pr ivate landlords seek. Indeed, Taylor concedes that he co uld not have brought this action if his landlord had been a priv ate party as the Double Jeopardy and Excessive Fines Clauses wou ld 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 requir e that a

landlord seek to evict a tenant who is convicted of a drug violation. Fourth, the landlord could require in i ts lease that the tenant not violate the drug laws on its premise s and if the tenant violated the agreement the landlord could se ek his
eviction. N.J. Stat. Ann. § 2A:18-61.1d and e. Finally, one reasonably might ask why sho uld a tenant benefit from conviction by using it as a shield aga inst 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 prosec utor had brought criminal proceedings against the tenant for the activities. Rather, one would suppose that the lan dlord could

use the conviction as evidence to demonstrate that the tenant had violated the lease. Indeed, as we pointed out abov e, 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 fin e argument. As the Supreme Court explained in Austin, a forfeit ure can violate the Excessive Fines Clause only if the forf eiture was a punishment. 509 U.S. at 610, 113 S.Ct. at 2806. T he test for whether a civil in rem forfeiture constitutes punis hment under the Excessive Fines Clause of the Eighth Amendment is slightly different from the one employed in our double jeopa rdy clause analysis; thus, even though the state proceeding ag ainst Taylor is in personam, Taylor has less of a burden in meet ing the

Excessive Fines Clause standard. In Austin, the Supreme Court held that a forfeiture would constitute punishment if it did not solely se rve a remedial purpose, i.e., that it only can be explained as als o serving in part to punish. Id. at 610, 113 S.Ct. at 2806. Wi th this in mind, the Court undertook a two-part inquiry: "Whe ther, at the time the Eighth Amendment was ratified, forfeiture was understood at least in part as punishment and whether forfeitu re . . . should be so understood today." Id. at 610-11, 113 S.Ct. at 2806. The Supreme Court held that for purposes of the ExcessiveFines 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.C t. at 2810. The second prong of the Artway test incorporates th e excessive fines clause inquiry under Austin. Despite his lesser burden, Taylor has not proved that the forfeiture here constitutes punishment under th e Excessive Fines Clause. As we explained in our double jeopar dy analysis under Artway, we find that the provisions of the An ti-Eviction Act and the legislative intent contradict any under standing of Taylor's forfeiture of his tenancy as punishment. Accordingly, we cannot say that the forfeiture here served in pa rt 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.