[ J
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- 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 : : : : : : : : : : : : : No. 64 MAP 2015 Appeal from the Order of the Adams County Court of Common Pleas, Civil Division, at No. 2014

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- 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 deterr ence of drug trafficking. See Majority Op. at 17

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. I therefore join parts I and II(A) of the Majority Opinion. However, I cannot agree that Se ction 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. C ONST

. 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

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Comm onwealth Dep artment of Transp ortation , 6 35 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 , 6 3 5 A.2d at 127

- 28. The Majority does not attempt to reconcile its decision with Plowman

. 1 Putting aside th is Court’s analysis in Plowman , the M ajority’s conclusion is still problematic. Some t raditional examples of punishment include imprisonment, a criminal fine, criminal forfeiture, and civil in r em forfeiture , which all impose significant restrictions on the class of persons against whom t hey are imposed. Imprisonment, parole, and probation fundamental ly 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 charact erized the concept of a fine as the government “extracting payments” from its citizens , and therefore deemed it punishment

. Austin , 509 U.S. at 610

. Howe ver, it is quite another matter for a state to grant a privilege to a person and revoke the same. See Plowman , 6 3 5 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 priv ilege 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 provi des the appropriate framework for determining whether Sect ion 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.2 d at 127 n.3.[J

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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. T he 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

co nvicted of 65 counts of Medicare fraud. Halper , 490 U.S. at 437. After the criminal proceedings concluded, the government brought a separat e 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 su stained 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 th e 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

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Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment.” Id.
T he Court’s analysis in Halper as to whether the civil penalty was “punishment” appeared to tak e contradictory position s insofar as the Court articulated two tests. The first wa s 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

r etributive or deterrent purposes , is punishment , as we have come to understand the term.” Id. at 448 (emphas e s added)

. However, t he 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 “sole ly 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

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

. A s Hudson recognized, every civil consequen ce 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 a re 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 r ecognize 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. U r sery , 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 Ur sery Court explicitly noted that “[t]he holding of Austin was limited to the Excessive Fines Clause of the Eighth Amendment[.]” Ur

sery , 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 off ense. 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 p ayment 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 ‘exces sive’ in any event.” Id. at 622 n.14. However, the revocation of a privilege is not a “payment” of property to the government. I n 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 ag ree with the Majority’s expansion of Austin beyond its legal foundation.[J

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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 citize nship
and deters crim e . 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 1 611(e)’s consequence, while having deterrent effects, is not solely de terrent. Section 1 611(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 s ufficient to show that Section 1 611(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 conclus ion 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 ).