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

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

LAWRENCE S. SHOUL,

Appellee

v.

COMMONWEALTH OF PENNSYLVANIA, 

DEPARTMENT OF TRANSPORTATION, 

BUREAU OF DRIVER LICENSING,

Appellant

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No. 64 MAP 2015

Appeal from the Order of the Adams 

County Court of Common Pleas, Civil 

Division, at No. 2014-S-721 dated 

February 24, 2015, exited February 26, 

2015.

ARGUED: December 6, 2016

CONCURRING AND DISSENTING OPINION

JUSTICE MUNDY DECIDED: November 22, 2017

I agree with the Majority to the extent it concludes that 75 Pa.C.S. § 1611(e) 

does not violate Appellee’s substantive due process rights under the Pennsylvania

Constitution. As the Majority explains, Section 1611(e) has a “real and substantial 

relation” to the deterrence of drug trafficking. See Majority Op. at 17-18. I therefore join 

parts I and II(A) of the Majority Opinion. However, I cannot agree that Section 1611(e)’s 

revocation of driving privileges imposes punishment within the meaning of the Eighth 

Amendment. Therefore, I respectfully dissent from the Majority’s decision to vacate and 

remand in part.

The Eighth Amendment states that “[e]xcessive bail shall not be required, nor 

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST.

amend. VIII. I begin by noting that this Court has already concluded that suspension or 

revocation of one’s driver’s license is not a criminal sanction. Indeed, in Plowman v. 
[J-83-2016] [MO: Todd, J.] - 2

Commonwealth Department of Transportation, 635 A.2d 124 (Pa. 1993), this Court 

concluded that mandatory suspension of a driver’s license because of a drug conviction 

is not criminal punishment for the purposes of the Eighth Amendment. Plowman, 635 

A.2d at 127-28. The Majority does not attempt to reconcile its decision with Plowman.

1

Putting aside this Court’s analysis in Plowman, the Majority’s conclusion is still 

problematic. Some traditional examples of punishment include imprisonment, a criminal 

fine, criminal forfeiture, and civil in rem forfeiture, which all impose significant 

restrictions on the class of persons against whom they are imposed. Imprisonment, 

parole, and probation fundamentally restrict a person’s liberty and movement. Further, 

everyone generally has a right to own property and not to have the government restrict 

his or her personal liberty. In Austin v. United States, 509 U.S. 602 (1993), upon which 

the Majority heavily relies, the Court characterized the concept of a fine as the 

government “extracting payments” from its citizens, and therefore deemed it 

punishment. Austin, 509 U.S. at 610. However, it is quite another matter for a state to 

grant a privilege to a person and revoke the same. See Plowman, 635 A.2d at 126 

(stating, “[o]perating a motor vehicle upon a Commonwealth highway is not a property 

right but a privilege.”) (internal quotation marks and citation omitted). Therefore, the

relevant inquiry is whether the revocation of a privilege otherwise granted by the 

government is itself punishment within the meaning of the Eighth Amendment, even if 

the revocation has some deterrent purpose.

The Majority concludes that Austin provides the appropriate framework for

determining whether Section 1611(e) constitutes punishment within the meaning of the 

 

1

This Court also expressed the view that, even if it deemed a license suspension 

predicated on a criminal conviction to be punishment, it would not find it unconstitutional 

because it was “not arbitrarily imposed for the purpose of inflicting pain and suffering.” 

Plowman, 635 A.2d at 127 n.3.
[J-83-2016] [MO: Todd, J.] - 3

Eighth Amendment.

2

 In Austin, the Supreme Court considered whether the federal civil 

in rem forfeiture scheme constituted a punishment for the purposes of the Excessive 

Fines Clause. The Court concluded it did, noting that “[t]he Excessive Fines Clause 

limits the government’s power to extract payments, whether in cash or in kind, as 

punishment for some offense.” Austin, 509 U.S. at 610 (internal quotation marks and 

citation omitted; emphasis in original). After discussing the history of forfeiture, the 

Court concluded that certain hallmarks of the federal forfeiture scheme revealed that 

Congress intended to utilize civil in rem forfeiture to punish. Id. at 619. The Supreme

Court noted that “a civil sanction that cannot fairly be said solely to serve a remedial 

purpose, but rather can only be explained as also serving either retributive or deterrent 

purposes, is punishment, as we have come to understand the term.” Id. (quoting United 

States v. Halper, 490 U.S. 435, 448 (1989)). 

This broadly-worded pronouncement in Austin comes from Halper. Halper was 

convicted of 65 counts of Medicare fraud. Halper, 490 U.S. at 437. After the criminal 

proceedings concluded, the government brought a separate civil action seeking a 

$130,000.00 civil penalty against Halper under the False Claims Act, which mandated a 

$2,000.00 penalty per violation. Id. at 448. Ultimately, the Court concluded that the 

imposition of this civil penalty could be a second and subsequent “punishment,” in 

violation of the Double Jeopardy Clause. Id. at 449. The Court stated the rule as 

“[w]here a defendant previously has sustained a criminal penalty and the civil penalty 

sought in the subsequent proceeding bears no rational relation to the goal of 

compensating the Government for its loss, but rather appears to qualify as ‘punishment’

in the plain meaning of the word, then the defendant is entitled to an accounting of the 

 

2 Plowman was decided on December 14, 1993, approximately five and one-half

months after Austin was decided on June 28, 1993.
[J-83-2016] [MO: Todd, J.] - 4

Government's damages and costs to determine if the penalty sought in fact constitutes 

a second punishment.” Id.

The Court’s analysis in Halper as to whether the civil penalty was “punishment” 

appeared to take contradictory positions insofar as the Court articulated two tests. The 

first was the test that appears in Austin, “a civil sanction that cannot fairly be said solely 

to serve a remedial purpose, but rather can only be explained as also serving either 

retributive or deterrent purposes, is punishment, as we have come to understand the 

term.” Id. at 448 (emphases added). However, the second test from Halper states that, 

“a defendant who already has been punished in a criminal prosecution may not be 

subjected to an additional civil sanction to the extent that the second sanction may not 

fairly be characterized as remedial, but only as a deterrent or retribution.” Id. at 448-49

(emphasis added). The Supreme Court of Minnesota highlighted the contradiction in 

the following terms.

The two “tests” quoted above are strikingly dissimilar. The 

first is a “solely remedial” test. Applied literally, it would 

appear to invalidate on double jeopardy grounds any 

remedial civil sanction also “serving either retributive or 

deterrent purposes,” no matter how minor. The second is a 

“solely deterrent/retributive” test. Applied literally, it would 

appear to uphold on double jeopardy grounds any civil 

sanction which “may fairly be characterized as remedial.”

State v. Hanson, 543 N.W.2d 84, 87 (Minn. 1996). 

The Supreme Court abrogated Halper in Hudson v. United States, 522 U.S. 93 

(1997). The Court confronted its problematic language in Halper, noting that the “solely 

remedial” test, which is found in Austin, had proved to be unworkable because “all civil 

penalties have some deterrent effect.” Hudson, 522 U.S. at 102. Echoing the 

Minnesota Supreme Court’s concerns, the Court observed “[i]f a sanction must be 

‘solely’ remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy 
[J-83-2016] [MO: Todd, J.] - 5

Clause, then no civil penalties are beyond the scope of the Clause.” Id. Therefore, it 

appears that the Court has retreated from its “solely remedial” test in determining 

whether a sanction constitutes punishment. Critically, Hudson did not discuss or retreat 

from Halper’s “solely deterrent” test.3

In addition, by taking Halper’s “solely remedial” test literally, as the Majority does, 

it is difficult to envision a civil consequence that does not serve as deterrence in some 

regard, and hence is not punishment. As Hudson recognized, every civil consequence 

imposed by the government is intended to have at least some deterrent purpose. Id. 

 

3

The Majority concludes that Hudson is of no consequence in this case because Halper

and Hudson are Double Jeopardy Clause cases, whereas Austin is an Eighth 

Amendment case. Majority Op. at 22 n.14. However, the Majority appears to 

acknowledge that the test applied in Austin derived from Halper’s Double Jeopardy 

Clause test that the Court has since backed away from in Hudson. I recognize that it is 

not clear whether the Court has abrogated Halper’s test for all constitutional provisions

given that civil in rem forfeiture is materially different from revocation of a privilege. 

Nevertheless, I conclude the test is not applicable.

The Majority cites United States v. Ursery, 518 U.S. 267 (1998), in which the 

Court held that civil in rem forfeiture was not punishment for purposes of the Double 

Jeopardy Clause. However, in its analysis, the Ursery Court explicitly noted that “[t]he 

holding of Austin was limited to the Excessive Fines Clause of the Eighth 

Amendment[.]” Ursery, 518 U.S. at 287 (emphasis added). As noted above, Austin

characterized a fine as an “extraction” or “payment” to the sovereign as punishment for 

an offense. Austin, 509 U.S at 609-10, 622. In forfeiture proceedings, such as in 

Austin, the government obviously intends to “extract” property of some sort from a 

citizen. Therefore, Austin applied Halper’s “solely remedial” test to determine whether 

that payment to the government was punitive and hence a “fine” for the purposes of the 

Excessive Fines Clause. Austin’s use of the “solely remedial” test is therefore 

understandable, since “a fine that serves purely remedial purposes cannot be 

considered ‘excessive’ in any event.” Id. at 622 n.14.

However, the revocation of a privilege is not a “payment” of property to the 

government. In this case, the Majority expands the scope of the “solely remedial” test 

beyond the Excessive Fines Clause. Under the Majority’s view, Halper’s “solely 

remedial” test would apply to any negative consequence imposed by law, including 

revocation of a privilege. Therefore, even though the Supreme Court has not yet 

reconciled Halper, Austin, and Hudson, I cannot agree with the Majority’s expansion of 

Austin beyond its legal foundation.
[J-83-2016] [MO: Todd, J.] - 6

Indeed, the objective of government-imposed penalties is to advance the betterment of 

society as a whole and shape citizens’ behavior in a way that promotes good citizenship 

and deters crime. Consequently, applying Austin’s solely remedial test as the Majority 

does, anything may be deemed punishment if it deters some behavior.

In my view, the test we should apply is Halper’s actual holding, i.e., the “solely 

deterrent” test that remains viable after Hudson.

4

 Section 1611(e)’s consequence, while 

having deterrent effects, is not solely deterrent. Section 1611(e) protects the public 

from those who violate the conditions of having a commercial driver’s license and 

promotes the general welfare by removing a participant in the drug trade from the 

Commonwealth’s roads and highways. In my view, this is sufficient to show that 

Section 1611(e)’s consequence is not “solely deterrent” so as to constitute punishment, 

especially in light of the fact that it is the revocation of a privilege, not a fundamental or 

constitutional right.5

Based on the foregoing, I conclude the trial court erred when it held that 

Appellee’s substantive due process rights and right to be free from cruel and unusual 

punishment were violated. Accordingly, I would reverse the trial court’s order in its 

entirety. I respectfully dissent.

 

4

This is consistent with Halper’s statement that its holding was intended to be “a rule for 

the rare case[.]” Halper, 490 U.S. at 449.

5 My conclusion is consistent with the conclusion reached by many other states on this 

issue. See, e.g., State v. Hickam, 668 A.2d 1321, 1328 (Conn. 1995), overruled on 

other grounds, State v. Crawford, 778 A.2d 947 (Conn. 2001); State v. Savard, 659 

A.2d 1265, 1267-68 (Me. 1995); Hanson, 543 N.W.2d at 88-89; State v. Mayo, 915 

S.W.2d 758, 761-63 (Mo. 1996).