Allen v. Attorney General of Maine

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-2057

RYAN ALLEN,

Petitioner, Appellant,

v.

ATTORNEY GENERAL OF THE STATE OF MAINE,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

Torruella, Chief Judge,

Aldrich, Senior Circuit Judge,

and Selya, Circuit Judge.

Wayne R. Foote, with whom Foote & Temple was on brief, for

appellant.
Joseph A. Wannemacher, Assistant Attorney General, with whom

Andrew Ketterer, Attorney General, was on brief, for appellee.

March 26, 1996

SELYA, Circuit Judge. Invoking federal habeas corpus
SELYA, Circuit Judge.

jurisdiction, petitioner-appellant Ryan Allen seeks to block the

State of Maine from prosecuting him for operating a motor vehicle

under the influence of alcohol (OUI) in violation of 29 M.R.S.A.

1312-B (West Supp. 1994).1 He insists that continued

prosecution of this charge will transgress the Double Jeopardy

Clause. See U.S. Const. amend. V. Because the petitioner's

arguments, though ingenious, are without intrinsic merit, we

affirm the district court's dismissal of his habeas petition.

I
I

On December 11, 1994, a state trooper arrested Allen

for committing an OUI offense. The State preferred charges

against him. As directed by law, the Secretary of State (the

Secretary) then suspended Allen's driver's license for ninety

days. See 29 M.R.S.A. 1311-A, reprinted in the appendix.

It is said that every action produces an equal and

opposite reaction. Having felt the lash of the administrative

suspension, the petitioner moved to dismiss the pending criminal

charge on double jeopardy grounds. The nisi prius court denied

the motion, relying upon an opinion issued by Maine's highest

1The state legislature recently repealed, substantially
reenacted, and recodified the statutes in question. See, e.g.,

29-A M.R.S.A. 2411 (West Supp. 1995) (providing criminal
penalties for OUI); id. 2451 (providing for administrative

suspension of driver's licenses following OUI arrests); id.

2403 (ensuring credit for an administrative suspension if a
suspension is later ordered as part of a corresponding criminal
sentence). Because all the relevant events took place under the
previous regime, we cite exclusively to the 1994 version of the
statutory scheme.

2

tribunal (the Law Court) two months earlier. See State v.

Savard, 659 A.2d 1265, 1268 (Me. 1995) (holding in materially

identical circumstances that an administrative license suspension

did not constitute punishment for double jeopardy purposes).

Instead of appealing the ruling to the Law Court, the petitioner

(who had been released on bail and was, therefore, technically in

the state's custody, see Lefkowitz v. Fair, 816 F.2d 17, 22 (1st

Cir. 1987)), applied for a writ of habeas corpus in the United

States District Court for the District of Maine.

The federal district court consolidated this petition

with a petition brought by Lori Thompson (a similarly situated

individual). After due consideration, Judge Brody concluded that

the license suspension and indictment arose from the same offense

and constituted separate proceedings,2 but that there could be

no multiple punishment (and, hence, no double jeopardy) because

the administrative sanction served remedial, rather than

punitive, ends. See Thompson v. Maine Atty. Gen., 896 F. Supp.

220, 221-22 (D. Me. 1995) (explaining that the suspension

provision "is designed primarily to ensure the public safety of

drivers in Maine"). Accordingly, Judge Brody dismissed both

habeas petitions. See id. at 223. This appeal ensued.

II
II

Before turning to the merits of the double jeopardy

claim, we discuss two potential procedural obstacles.

2The State does not challenge either of these determinations
on appeal.

3

A.
A.

The first procedural hurdle is easily vaulted.

Ordinarily, a state criminal case is ripe for the ministrations

of a federal habeas court only after completion of the state

proceedings (that is, after the defendant has been tried,

convicted, sentenced, and has pursued available direct appeals).

See, e.g., Fay v. Noia, 372 U.S. 391, 418 (1963); Nadworny v.

Fair, 872 F.2d 1093, 1096 (1st Cir. 1989). In this instance, the

petitioner knocked on the federal court's door before his state

trial began. But because of an exception to the ripeness rule,

this case evades the bar.

A petition for habeas relief that raises a colorable

claim of former jeopardy need not invariably await trial and

conviction in the state court. Such claims are distinctive

because the Constitution insists that "courts may not impose more

than one punishment for the same offense and prosecutors

ordinarily may not attempt to secure that punishment in more than

one trial." Witte v. United States, 115 S. Ct. 2199, 2205 (1995)

(quoting Brown v. Ohio, 432 U.S. 161, 165 (1977)). To realize

the solemn promise of this constitutional guaranty, federal

habeas courts will in appropriate circumstances entertain a claim

that permitting a nascent (but as yet incomplete) state court

prosecution to go forward would violate the Double Jeopardy

Clause. See, e.g., Justices of Boston Mun. Court v. Lydon, 466

U.S. 294, 302-03 (1984) (plurality op.); Gilliam v. Foster, 75

F.3d 881, 904 (4th Cir. 1996); Mannes v. Gillespie, 967 F.2d

4

1310, 1312 (9th Cir. 1992), cert. denied, 506 U.S. 1048 (1993).

This is a nearly classic case for invoking the exception.3

Thus, we hold that the petitioner may seek federal habeas corpus

relief without first undergoing trial on the challenged

indictment.

B.
B.

The second procedural hurdle results from the

petitioner's bypassing of the Law Court en route to a federal

forum. This shortcut flouts the general rule that a petitioner

must exhaust all available state remedies before federal habeas

jurisdiction attaches. See, e.g., Scarpa v. DuBois, 38 F.3d 1, 6

(1st Cir. 1994), cert. denied, 115 S. Ct. 940 (1995); Nadworny,

872 F.2d at 1096-97; see generally 28 U.S.C. 2254(b). We think

that the shortcut is permissible in this case.

Although the exhaustion rule is important, it is not

immutable: exhaustion of remedies is not a jurisdictional

prerequisite to a habeas petition, but, rather, a gatekeeping

provision rooted in concepts of federalism and comity. See

Nadworny, 872 F.2d at 1096 ("Requiring that remedies be exhausted

in state courts is merely comity's juridical tool, embodying the

3There are three general classes of double jeopardy claims.
See United States v. Rivera-Martinez, 931 F.2d 148, 152 (1st

Cir.) (explaining that the Double Jeopardy Clause "safeguards an
individual against (1) a second prosecution for the same offense,
following an acquittal; (2) a second prosecution for the same
offense, following a conviction; and (3) multiple punishments"),
cert. denied, 502 U.S. 862 (1991). While immediate recourse to

federal habeas most commonly occurs in successive prosecution
cases, we see no reason why such recourse is not equally
propitious in a multiple punishments case where, as here, the
alleged punishments have their origins in separate proceedings.

5

federal sovereign's respect for the state courts' capability to

adjudicate federal rights."). Consistent with this rationale,

the federal courts have carved a narrow futility exception to the

exhaustion principle. If stare decisis looms, that is, if a

state's highest court has ruled unfavorably on a claim involving

facts and issues materially identical to those undergirding a

federal habeas petition and there is no plausible reason to

believe that a replay will persuade the court to reverse its

field, then the state judicial process becomes ineffective as a

means of protecting the petitioner's rights. In such

circumstances, the federal courts may choose to relieve the

petitioner of the obligation to pursue available state appellate

remedies as a condition precedent to seeking a federal anodyne.

See Piercy v. Black, 801 F.2d 1075, 1077-78 (8th Cir. 1986);

Robinson v. Berman, 594 F.2d 1, 3 (1st Cir. 1979). The law,

after all, should not require litigants to engage in empty

gestures or to perform obviously futile acts.

Here, Judge Brody recognized that the Law Court's very

recent decision in Savard propelled this case within the

perimeter of the futility exception to the exhaustion rule.

Thus, the judge determined that it would be bootless for the

petitioner to invite state appellate review and excused him from

doing so. See Thompson, 896 F. Supp. at 221. Because the

finding of futility cannot be faulted, we uphold the court's

decision to allow the habeas case to proceed.

III
III

6

Turning to the merits of the controversy, we borrow

heavily from our decision in United States v. Stoller, F.3d

(1st Cir. 1996) [No. 95-2175]. Stoller involved a challenge,

on double jeopardy grounds, to a criminal prosecution for

misapplication of bank funds following the imposition of an

administrative sanction (a debarment order precluding Stoller

from employment or other participation in the banking industry).

See id. at [slip op. at 2-3]. In addressing Stoller's

challenge, we delineated the analytic framework that governs a

court's appraisal of most civil sanctions that are alleged to be

disguised punishments.4 We explained that, in such cases, courts

must examine "the totality of the circumstances, including the

source of the authority under which the [civil sanction] is

imposable, the goals underpinning the authorizing statute, the

order itself, the purposes it serves, and the circumstances

attendant to its promulgation." Id. at [slip op. at 21]. If

this holistic examination indicates that the sanction is better

characterized as remedial rather than as punitive, it will not be

deemed to constitute punishment for double jeopardy purposes.

See id. at [slip op. at 7].

4A different framework governs a court's appraisal of
"monetary penalties designed to make the sovereign whole for harm
or loss that is quantifiable in actual or approximate monetary
terms." Stoller, F.3d at [slip op. at 12]. In those

cases, the proper test requires a determination of whether the
sanction can fairly be seen as remedial (and, hence,
nonpunitive), or whether it is only explicable in deterrent or
retributive terms (and, hence, punitive). See United States v.

Halper, 490 U.S. 435, 448-49 (1989); Stoller, F.3d at

[slip op. at 12-13].

7

A.
A.

The first step a court must take in assessing the

aggregate circumstances is to inspect the statute under which the

sanction has been imposed. See id. at [slip op. at 21]. In

this instance the statute, 29 M.R.S.A. 1311-A, contains a

statement of purpose that simplifies the judicial task. The

proviso serves to safeguard travelers on the state's roads, see

29 M.R.S.A. 1311-A(1)(A), by "remov[ing] quickly from the

public highways . . . those persons who have shown themselves to

be a safety hazard by operating or attempting to operate" motor

vehicles after imbibing quantities of alcohol, id. 1311-

A(1)(B). So viewed, the license suspension proviso furthers a

quintessentially remedial goal (public safety) and it is,

therefore, not punitive in the relevant constitutional sense.

Accord State v. Hickam, 668 A.2d 1321, 1328 (Conn. 1995) (finding

similar statutory scheme to be remedial in nature); Savard, 659

A.2d at 1268 (finding 29 M.R.S.A. 1311-A to be remedial in

nature).

The petitioner does not dispute that public safety is

both the driving force behind the statute and a legitimate area

of legislative concern. Still, he attempts a flanking maneuver.

This statute, he argues, must have a punitive aim because the

suspension period increases with the number of violations. See

29 M.R.S.A. 1311-A(5)(B), 1312-B(2). The argument is

unconvincing.

While tying the severity of a penalty to the number of

8

offenses perpetrated may indicate a retributive intent, such a

linkage may also indicate a protective intent. Here, for

example, the escalating suspensions plainly reflect, at least in

part, a desire to safeguard the public by ousting those who, on

average, present the greatest safety hazard recidivist drunk

drivers from the highways for longer periods of time. Given

this perspective, we believe that the escalating length of the

authorized administrative suspensions is not so clearly punitive

as to require us to characterize the statute as penal in nature.

See, e.g., Bae v. Shalala, 44 F.3d 489, 495 (7th Cir. 1994)

(explaining that "the duration or severity of [a civil sanction]

will not mark it as punishment where it is intended to further a

legitimate governmental purpose").

B.
B.

We turn next to the design and structure of Maine's

statutory scheme. Pointing out that a driver loses his license

under 29 M.R.S.A. 1311-A only after first being arrested and

charged with an OUI offense, the petitioner asseverates that this

fact is a telltale indication of punitive intent. This

asseveration, which rests in large part upon a misreading of the

Court's opinion in Department of Revenue v. Kurth Ranch, 114 S.

Ct. 1937 (1994), does not withstand scrutiny.

The petitioner contends that, under Kurth Ranch, a

civil sanction predicated in terms on a prior arrest is

necessarily punitive. But the Kurth Ranch Court examined

numerous factors (including the provenance of the legislation at

9

issue, the extent of the sanction, and the relation between the

sanction and the criminal law, see id. at 1946-47) without

attaching talismanic significance to any one of them. To the

contrary, Kurth Ranch makes it pellucid that these factors serve

as harbingers which, when aggregated, will cast a sanction in

either a remedial or a punitive light. See id. at 1947. In this

case, given the legitimate remedial purpose that the license

suspension proviso serves, we do not find the nexus between an

individual's arrest and the imposition of the sanction to be of

overriding importance. See Stoller, F.3d at [slip op. at

21] ("Because our interest is in deterrating the overall nature

of the sanction, no one factor, standing alone, is likely to be

determinative.").

In a related vein, the petitioner contends that the

legislature's inclusion of the license suspension proviso in a

broader bill that mandated several changes in the criminal law

portends a punitive intent. The contention is nothing more than

a makeweight. Legislatures routinely combine punitive and

remedial measures in a single piece of legislation, see, e.g.,

id. at [slip op. at 25-26], and that unremarkable fact,

without more, tells a court very little about the intrinsic

nature of a particular administrative sanction.

The petitioner's parting structural shot targets the

link that the statutory scheme forges between administrative

license suspensions and court-ordered license suspensions imposed

as part of convicted OUI defendants' criminal sentences. If a

10

defendant is found guilty on an OUI charge, the court not only

must impose a suspension identical to that imposed

administratively following the initial arrest, see 29 M.R.S.A.

1311-A(5)(B),5 but also must give the defendant credit for the

full elapsed period of the administrative suspension, see id.

1311-A(5)(C). This interleaving, the petitioner suggests,

signifies that the civil sanction must itself be punitive. We do

not accept this syllogism. A remedial sanction is not

transmogrified into a punishment simply because a similar

sanction sometimes may be imposed as part of a criminal sentence.

See Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 631, 636 (1988)

(explaining that the characterization of a sanction as remedial

or punitive depends on the nature of the sanction itself, not the

proceeding in which it is imposed); United States v. Salerno, 481

U.S. 739, 746-47 (1987) (holding that, although imprisonment is

generally thought to be the paradigmatic form of punishment,

pretrial detention to protect the public is not regarded as

punitive).

In all events, the credit provision, fairly read,

buttresses the State's position on appeal. If a driver is

convicted of OUI, the credit provision effectively merges the

administrative sanction and the subsequent court-ordered

suspension, thereby ensuring that the "punishment" is not

5There is an exception to this identicality that involves
persons arrested for OUI while accompanied by minors under the
age of sixteen. See 29 M.R.S.A. 1311-A(5)(B-1) (providing for

an additional administrative suspension in such cases). The
exception is not implicated here.

11

"multiple"; and if a driver is acquitted, there will be no court-

ordered suspension and, hence, no possibility of multiple

punishment. Either way the credit provision deflates the

petitioner's double jeopardy challenge by guaranteeing that no

more than a single punishment can be imposed. At the same time,

the insertion of this feature bears witness to the legislature's

apparent desire to avoid any significant punitive impact while

striving to protect the motoring public.

For these reasons, we conclude that the architecture of

the statute tilts in the same direction as the text. Both are

indicative of an intent to serve remedial ends.

C.
C.

The petitioner insists that state legislators intended

the license suspension proviso to punish drunk drivers, and that

this intention demonstrates the proviso's true character. We

acknowledge that the legislative history of a statute can be

telling in a close case. Here, however, the case is not close

and, at any rate, the legislative history does no more than

confirm what the language and structure of the statute already

suggest.6

6We undertake independent review of the legislative history,
mindful that federal courts must make their own constitutional
assessments. See, e.g., Siegfriedt v. Fair, 982 F.2d 14, 16 (1st

Cir. 1992). Nevertheless, while we do not defer to the Law
Court's determination that the Maine legislature set out to
fashion a remedy, not a punishment, see Savard, 659 A.2d at 1268,

a strong argument can be made that a federal court should
hesitate before disavowing a state supreme court's exposition of
the purposes animating a state statute. See, e.g., Hamm v.

Latessa, 72 F.3d 947, 954 (1st Cir. 1995) (reaffirming the

general proposition that federal courts must defer to a state

12

The petitioner's proffer consists of a few snippets

culled from the legislative record. As a general matter, courts

must be chary of overvaluing isolated comments by individual

solons. See Rhode Island v. Narragansett Indian Tribe, 19 F.3d

685, 699 (1st Cir.), cert. denied, 115 S. Ct. 298 (1994).

Moreover, most of the comments collected by the petitioner are

attributable to opponents of the measure. Statements of

legislators who oppose a bill ordinarily add little to the

explication of legislative intent, see Selective Serv. Sys. v.

Minnesota Public Interest Research Group, 468 U.S. 841, 855 n.15

(1984), and such is the case here.

Brushing aside the parsley, the meat of the

petitioner's entire proffer comprises only two comments. See

Legislative Record House, L.D. 1749, at 1240 (June 10, 1983)

("I don't deny that . . . [suspension] is a very strict and

severe punishment") (statement of Rep. Hayden); id. at 1245 ("It

is time to suspend those who are playing for time through this

court system under the present law.") (statement of Rep. Smith).

These blemishes are insufficient to alter the complexion of the

challenged statute. A reading of the entire debate regarding the

desirability of immediate license suspensions leaves no doubt but

that the Maine legislature meant the statute to serve a remedial

end.

One of the bill's principal sponsors advocated its

passage on the ground that an OUI arrest, whether or not

supreme court's interpretation of a statute of the state).

13

sufficient for conviction, indicated a likelihood that a person

was in the habit of drinking and driving, and therefore posed a

threat to others. See id. at 1240 (statement of Rep. Hayden).

Other proponents of the bill urged its passage to satisfy the

legislature's "grave obligation to remove th[e] drunken driver

from the road," id. at 1242 (statement of Rep. Joyce), and to

insulate the populace from harm at the hands of individuals who,

having been "picked up for drunken driving . . . keep on driving

afterwards awaiting trial," id. at 1241 (statement of Rep.

Smith). The debate in the state senate proceeded along similar

lines. See Legislative Record Senate, L.D. 1749, at 1318-20

(June 15, 1983). In the face of statements such as these, the

random remarks singled out by the petitioner constitute too

fragile a foundation on which to build a credible argument that

the license suspension proviso was designed to punish offenders.

See, e.g., Bae, 44 F.3d at 494 (concluding that isolated

references to individual legislators' deterrent aims will not

indelibly mark a sanction as punitive).

The petitioner strives to reinforce his tenuous

argument by touting a letter submitted to the chairs of the House

and Senate judiciary committees by the Governor's Highway Safety

Representative. Allen emphasizes the letter's suggestion "that

this bill would be an added deterrent if a person knew that they

[sic] would be suspended within the short period of time proposed

rather than some unknown date in the unforeseeable future."

Letter from Albert L. Godfrey, Sr., April 15, 1983, at 2. But in

14

the very next sentence, the author writes that the bill is needed

"[i]n the interests of highway safety." Hence, we discount the

letter for two reasons. First, there is no plausible basis for

imputing the views of the Executive Branch to the Legislative

Branch. See Northern Colo. Water Conservancy Dist. v. FERC, 730

F.2d 1509, 1519 (D.C. Cir. 1984) (according little weight to an

administrator's statement to a congressional committee). Second,

the blend of concerns evinced in the letter renders it ambiguous

and divests it of any dispositive effect. See Bae, 44 F.3d at

494 (explaining that legislative history reflecting both

deterrent and remedial concerns neither requires nor prevents a

finding that a sanction is punitive); cf. Stowell v. Secretary of

HHS, 3 F.3d 539, 542-43 (1st Cir. 1993) (explaining that "an

ambiguous statute cannot be demystified by resort to equally

ambiguous legislative history").

We add an eschatocol of sorts. Even if we were prone

to give the Godfrey letter more weight, it would not tip the

balance. When applying the totality-of-the-circumstances test to

a civil sanction, the fact that the sanction may be aimed

partially at deterrence is merely one factor to be taken into

account in the decisional calculus. See Bae, 44 F.3d at 494

(explaining that "a deterrent purpose does not automatically mark

a civil sanction as a form of punishment"). That factor may

militate in favor of a finding of punitive intent, but it is not,

by itself, determinative. See Kurth Ranch, 114 S. Ct. at 1947;

Stoller, F.3d at [slip op. at 19].

15

We conclude that the legislative archives, overall,

support the suggestion that the license suspension proviso, 29

M.R.S.A. 1311-A, is intended primarily to achieve a remedial

goal.

IV
IV

In the final analysis, the force of a double jeopardy

claim depends upon the particular circumstances of each

individual case. See United States v. Halper, 490 U.S. 435, 448

(1989) (mandating "a particularized assessment of the penalty

imposed and the purposes the penalty may fairly be said to

serve"); Stoller, F.3d at [slip op. at 26] (similar).

The pivotal question is whether the sanction, as applied, exacts

rough remedial justice.7 See Halper, 490 U.S. at 446.

Evaluated from this standpoint, we believe that the

administrative sanction Maine imposed on the petitioner passes

muster. In purpose and effect, the ninety-day license suspension

can fairly be viewed as remedial inasmuch as it is rationally

related to the apprehended danger and the potential harm. That

is, the State could reasonably conclude from the petitioner's OUI

arrest alone that preservation of public safety warranted a

7The State disagrees, proposing that we examine instead the
universe of license suspensions in order to determine whether the
temporary loss of driving privileges is, in the abstract, a
punishment. We reject this approach. Unlike the State, we do
not believe that the Court's opinion in Austin v. United States,

113 S. Ct. 2801 (1993), changed settled law in this regard.
There the Court held that, because of the peculiar nature of the
forfeiture implicated by Austin's appeal, that forfeiture should
be examined in general and not merely as applied. See id. at

2812 n.14. We believe that this special approach is best limited
to certain civil forfeitures. It has no applicability here.

16

breathing spell (in the form of a temporary ninety-day

cancellation of driving privileges).

The petitioner protests that the Secretary neither

undertook an individualized determination of his dangerousness

nor offered him a chance to show that he had rehabilitated

himself prior to the end of the suspension period. These

allegations are true but neither fact undermines the conclusion

that the license suspension is essentially remedial. For one

thing, the ninety-day suspension is subject to relaxation should

the petitioner apply for a work-restricted license. See 29

M.R.S.A. 1311-A(5-A). Limitations of this ilk are typical of

remedial suspension provisions. See, e.g., Butler v. Department

of Pub. Safety & Corrections, 609 So.2d 790, 797 (La. 1992). For

another thing, the Secretary's order is limited temporally and

the period of suspension in Allen's case, ninety days is

reasonable in relation to the future harm the offender's conduct

might portend. In other contexts, the courts have found

debarments of fixed duration, based on prior misconduct, aimed at

protecting the public from possible future shenanigans, to be

nonpunitive. See, e,g., Manocchio v. Kusserow, 961 F.2d 1539,

1542 (11th Cir. 1992) (finding remedial an order banning a doctor

from participating in Medicare for at least five years); United

States v. Bizzell, 921 F.2d 263, 267 (10th Cir. 1990) (discerning

no punitive intent undergirding a two-year ban from accepting

government contracts). Such durationally rigid restrictions,

although they may bear the sting of punishment from the

17

recipient's perspective, plainly serve the government's

prophylactic interest. See Stoller, F.3d at [slip op. at

28].

We need go no further. The key to cases of this genre

is to "distinguish carefully between those sanctions that

constitute impermissible exercises of the government's power to

punish and those that constitute permissible exercises of the

government's remedial authority (even if effectuating a specific

remedy sometimes carries with it an unavoidable component of

deterrence or retribution)." Stoller, F.3d at [slip op.

at 30-31]. After analyzing the totality of the circumstances, we

conclude that the civil sanction at issue here the suspension

of the petitioner's driving privileges ordered administratively

by the Secretary represents a reasonable effort to protect the

public from motorists who have demonstrated a dangerous

propensity to drink before they drive. The sanction therefore is

principally in service to a remedial goal. Because the license

suspension does not constitute a punishment under appropriate

double jeopardy analysis, the district court did not err in

refusing to issue a writ of habeas corpus.

Affirmed.
Affirmed.

18