NO. 95-384
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Phillips,
The Honorable Leonard H. Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph P. Mazurek, Attorney General, Elizabeth L.
Griffing and Brenda Nordlund, Assistant Attorneys
General, Helena, Montana; Mark J. Murphy, Special
Phillips County Attorney, Helena, Montana; Ed
Amestoy, Phillips County Attorney, Malta, Montana
For Respondent:
David L. Irving, Glasgow, Montana; Elizabeth A.
Best, Best Law Offices, Great Falls, Montana
Heard: May 7, 1996
Submitted: May 9, 1996
Decided: July 30, 1996
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
The state of Montana appeals from a judgment of the
Seventeenth Judicial District Court, Phillips County, dismissing
a criminal charge against Donald Schnittgen (Schnittgen).
Schnittgen was charged with criminal mischief as a result of an
incident at a bar in Zortman, Montana. Based on his behavior the
same evening, Schnittgen was subsequently terminated from his
position as deputy sheriff. Schnittgen moved to dismiss the
criminal charge contending that his prosecution violated the Double
Jeopardy Clause of the Fifth Amendment to the United States
Constitution and Article II, Section 25 of the Montana
Constitution. After holding an evidentiary hearing on the motion,
the District Court entered findings of fact, conclusions of law,
and order dismissing the charge of criminal mischief as violative
of Schnittgen's constitutional right against double jeopardy. We
reverse.
ISSUE.
Did the District Court err in dismissing the felony criminal
mischief charge filed against Schnittgen on the basis that it
violated the constitutional prohibition against double jeopardy?
BACKGROUND
On March 29, 1994, Schnittgen, a deputy sheriff in Phillips
County, allegedly damaged substantial property at the Miner's Club
Bar in Zortman, Montana. Schnittgen was off-duty at the time. He
was at the bar with a friend, James Lile, when the Phillips County
2
undersheriff and a deputy arrested Lile for criminal trespass
because Lile refused to leave the bar after repeated requests.
Schnittgen verbally abused the officer who arrested Lile. upon
returning from taking Lile to the county jail, the officers heard
over the radio dispatch that Schnittgen was breaking things at the
bar. Undersheriff Weber and Officer Sandsness called for backup
and waited for Sheriff Peigneux and Deputy Miller to arrive. When
the sheriff arrived, Schnittgen locked the door to the bar. After
nearly a half an hour, Schnittgen agreed to come out of the bar and
went to the county jail in Malta with Sheriff Peigneux and Deputy
Miller. Schnittgen sprayed catsup and mustard on the jail
surveillance camera in his cell, causing damage to the camera.
On March 31, 1994, Schnittgen was charged with criminal
mischief, a felony, in violation of 5 45-6-101(l), MCA, for
damaging the property of the Miner's Club Bar and was served with
a complaint and notice to appear. Schnittgen appeared before Gayle
Stahl, Justice of the Peace, and was later released on a $5,000
bond. Immediately following this incident, Phillips County
suspended Schnittgen without pay but subsequently changed his
status to leave with pay.
On May 9, 1994, a specially-appointed deputy county attorney
charged Schnittgen by information with criminal mischief, a felony,
in violation of § 45-6-101, MCA, for damaging the bar in an amount
exceeding $15,000. On June 2, 1994, at Schnittgen's initial
appearance, the District Court appointed a public defender to
represent him, released the bail he had posted, and released him on
3
his own recognizance. At his arraignment on October 4, 1994,
Schnittgen entered a "not guilty" plea and gave notice that he
would use the defense of mental disease or defect
On December 1, 1994, the Phillips County Attorney sent a
letter to Schnittgen giving him notice of the Phillips County
Sheriff's intent to terminate Schnittgen's employment and setting
a date for a hearing before the Phillips County Board of
Commissioners. The county attorney enclosed an affidavit
disclosing, in summary, the following causes for Schnittgen's
termination: disobeying the orders of the Sheriff and
Under-sheriff; insubordination to superior officers; criminal
mischief to Phillips County property by damaging the jail cell
camera; placing fellow officers in a hazardous situation; and
incapacity materially affecting his ability to perform his official
duties
More specifically, the termination notice set forth the
following as reasons for the termination proceeding:
a . After making an arrest on James Lile, a friend of
Deputy Schnittgen, Undersheriff Bryan Weber indicated
that Deputy Schnittgen became verbally abusive to
Undersheriff Weber. Undersheriff Weberinstructed Deputy
Schnittgen to go home, to which Deputy Schnittgen replied
"Is that a [f ling order boss?" Undersheriff Weber
affirmed that itwas an order to which Deputy Schnittgen
replied, "Who's going to make me?" Deputy Schnittgen did
not obey the order of the Undersheriff and remained at
the scene. Deputy Schnittgen was ordered by Sheriff Gene
Peigneux to remove himself from the bar and return to
Malta. Deputy Schnittgen disobeyed the order of the
Sheriff and continued to destroy property in the bar
until a later time when he was finally convinced to go
with the Sheriff and the Deputies. By these actions,
Deputy Schnittgen disobeyed the reasonable orders of the
Undersheriff and Sheriff.
4
b. While completing the arrest on Deputy Schnittgen's
friend, Jim Lile, at the Zortman Bar, Deputy Schnittgen
was insubordinate and verbally abusive to Undersheriff
Weber by challenging him and telling him that he should
quote "Suck [d I." Deputy Schnittgen was also
insubordinate to Sheriff Peigneux by failing to cease and
desist his activities inside the Zortman Bar after the
arrival of Sheriff Peigneux.
c. While off duty on the date in question, Deputy
Schnittgen was drunk and disorderly and destroyed the
property of the owners of the Zortman Bar. The estimated
damages to the Zortman Bar as a result of Deputy
Schnittgen's action was in the amount of $15,000.
Subsequently, Deputy Schnittgen was charged with a felony
offense and the trial in such criminal case in [sic]
currently pending before the Seventeenth Judicial
District Court.
d. Deputy Schnittgen was arrested and placed in the
Phillips County Jail after the incident in Zortman.
While in the Phillips County Jail, Deputy Schnittgen
damaged county property by rubbing ketchup and mustard on
a jail cell camera. Such abuse to the camera caused it
to malfunction and required it to be sent in for repair.
e. Deputy Schnittgen placed himself as well as other
deputy sheriff's [sic] in a hazardous situation when he
would not leave the bar area with the law enforcement
officers and also by challenging the officers and telling
the officers to shoot him while he was in the bar area.
f. The violent and destructive outburst displayed by
Deputy Schnittgen on March 29, 1994, which resulted in a
substantial amount of damage to the Zortman Bar, the
challenging of fellow officers, the disobedience to the
Sheriff and the Undersheriff and the damaging of Phillips
County property displays an incapacity on Deputy
Schnittgen's part which materially effects [sic] his
ability to perform his official duties as a deputy
sheriff.
Schnittgen attended the hearing without counsel and read a
statement that his participation in the hearing would violate his
constitutional rights. On December 20, 1994, Phillips County
terminated Schnittgen's employment.
On March 13, 1995, in the criminal proceedings, Schnittgen
5
served a written notice of his intent to use the defense of mental
disease or defect. He amended his notice on June 7, 1995, listing
expert witnesses in support of this defense. The District Court
appointed an additional expert to advise the defense, to assess
medical records, and to coordinate expert testimony at trial. On
June 15, 1995, Schnittgen moved to dismiss the criminal charge
against him, claiming that his prosecution violated the Double
Jeopardy Clause because the same conduct underlying the criminal
prosecution formed the basis for Phillips County's termination of
his employment. The State opposed the motion, claiming it was
untimely filed and arguing that double jeopardy case law does not
extend to a termination of employment.
Following a pretrial hearing, the District Court postponed
consideration of Schnittgen's motion to dismiss and other pretrial
motions until July 11, 1995. Following the July 11, 1995, hearing,
the District Court entered findings of fact, conclusions of law,
and order dismissing the charge of criminal mischief on the basis
that the charge violated the Double Jeopardy Clauses of the United
States and Montana Constitutions.
The State appeals the District Court's findings of fact,
conclusions of law, and order.
STANDARD OF REVIEW
Whether the Double Jeopardy Clause is implicated in a course
of conduct against an individual by the government is a question of
constitutional law. Therefore, our standard of review is plenary.
See United States v. Tolliver (5th Cir. 19951, 61 F.3d 1189, 1209,
rev'd on other grounds, Sterling v. United States (1996), 116 S.Ct.
6
TOO, 133 L.Ed.Zd 834. We review a district court's conclusions of
law to determine if the court's interpretation of the law is
correct. State v. Gould (19951, 273 Mont. 207, 219, 902 P.2d 532,
540.
DISCUSSION
Did the District Court err in dismissing the felony criminal
mischief charge filed against Schnittgen on the basis that it
violated the constitutional prohibition against double jeopardy?
The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution provides that no person shall I' be
subject for the same offense to be twice put in jeopardy of life or
limb." Similarly, Article II, Section 25 of the Montana
Constitution provides that no person shall "be again put in
jeopardy for the same offense previously tried in any
jurisdiction." While the language of the Double Jeopardy Clauses
in the federal and State constitutions is somewhat different, that
difference is not material to our decision here. Accordingly, for
purposes of this opinion, we treat the protections from double
jeopardy afforded under both constitutions as co-extensive and will
simply refer to both clauses collectively in the singular. See
State v. Nelson (Mont. 1996), 910 P.2d 247, 250, 53 St.Rep. 50, il-
52.
The United States Supreme Court has on numerous occasions held
that the Double Jeopardy Clause protects against three distinct
abuses: 1) a second prosecution for the same offense; 2) a second
prosecution for the same offense after conviction; and 3) multiple
punishments for the same offense. United States v. Halper (1989),
7
490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.Zd 487, 496
(citing North Carolina v. Pearce (1969), 335 U.S. 711, 717, 89
S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65); see also Witte v. United
States (1995), 115 S.Ct. 2199, 2204, 132 L.Ed.2d 351, 361.
In the instant case, Schnittgen contends that the criminal
prosecution violated the Double Jeopardy Clause's protection
against multiple punishments for the same offense because the same
conduct underlying the criminal prosecution formed the basis for
the termination of his employment. On the other hand, the State
contends that the District Court erred in dismissing the criminal
charges against Schnittgen because Schnittgen's employment
termination and his criminal prosecution did not constitute
multiple punishments. Specifically, the State contends that
Phillips County was driven by purposes other than punishment in
terminating Schnittgen's employment and, therefore, the Double
Jeopardy Clause does not apply.
Whether the Double Jeopardy Clause prohibits the government
from discharging a public employee from his employment for conduct
which also gives rise to the filing of criminal charges against him
is an issue of first impression before this Court. Notwith-
standing, four United States Supreme Court cases, two federal
circuit court cases, and a state supreme court case shed light on
this question and guide our analysis. See, Halper, 490 U.S. 435;
Austin v. United States (19931, 509 U.S. 602, 113 S.Ct. 2801, 125
L.Ed.2d 488; Department of Revenue v. Kurth (1994), 114 S.Ct. 1937,
128 L.Ed.Zd 767; United States v. Ursery (U.S. June 24, 1996), Nos.
95-345 and 95-346; United States v. Reed (11th Cir. 1991), 937 F.2d
8
575; United States v. Payne (6th Cir. 1993), 2 F.3d 706; Loui v.
Board of Medical Examiners (Hawaii 1995), 889 P.2d 705.
Accordingly, a review of these cases is appropriate.
Historically, the protection against double jeopardy applied
only to criminal proceedings. See, e.q., United States ex rel.
Marcus v. Hess (1943), 317 U.S. 537, 548-49, 63 S.Ct. 379, 386, 87
L.Ed. 443, 450. However, in Halper, in what has now become a
seminal case, the United States Supreme Court recognized the
"intrinsically personal" character of the Fifth Amendment right and
applied the proscription against multiple punishments to a penalty
authorized by the civil False Claims Act, holding that civil as
well as criminal sanctions may constitute punishment for double
jeopardy purposes. Halter, 490 U.S. at 441.
Specifically, the Haloer Court considered "whether and under
what circumstances a civil penalty may constitute 'punishment' for
the purposes of double jeopardy analysis," noting that 'I [ilt is
well settled that 'Congress may impose both a criminal and a civil
sanction in respect to the same act or omission.‘” Urserv, Nos.
95-345 and 95-346, slip op. at 24 (quoting Helvering v. Mitchell
(1938), 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917, 922).
However, the Court went on to hold that "under the Double Jeopardy
Clause 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." Haloer, 490
U.S. at 448-49.
In Halter, the defendant had been indicted and convicted for
submitting false medicare claims in violation of the federal false
claims statute and had been sentenced to prison for 2 years and
fined $5,000. The government then brought a civil action against
the defendant under the civil False Claims Act. Haloer, 490 U.S.
at 437. The federal district court granted summary judgment in
favor of the government but found that imposing the full statutory
penalty of more than $130,000 would constitute double jeopardy
because, in application, the amount of the penalty was entirely
unrelated and disproportionate to actual damages suffered by the
government.
The parties did not dispute that the defendant had already
been punished in a prior criminal proceeding, nor did they dispute
that the~civil and criminal proceedings concerned the same conduct
--submission of 65 false claims. Rather, the sole issue was
whether the statutory penalty authorized by the civil False Claims
Act constituted punishment for the purposes of double jeopardy.
Haloer, 490 U.S. at 441. The Court noted that civil enforcement of
a remedial sanction does not constitute double jeopardy. Halaer,
490 U.S. at 441 (citing Helverinq, 303 U.S. 391). Accordingly, the
Court held that to identify a violation of the Double Jeopardy
Clause's proscription against multiple punishments, a court should
assess the character of the actual sanctions imposed on an
individual by the machinery of the state. Importantly, whether a
sanction constitutes punishment is not determined from the
defendant's perspective but rather by "the purposes actually served
by the sanction in question." Halper, 490 U.S. at 447 n 7. For
10
example, the Court noted that a sanction designed to protect the
government from financial loss rather than to vindicate public
justice was civil in nature. Haloer, 490 U.S. at 444 (citinq U.S.
ex rel. Marcus v. Hess, 317 U.S. 537).
Under the Court's analysis in Halner, the determination whether
a given civil sanction constitutes punishment in the relevant sense
requires a particularized assessment of the penalty imposed and the
purposes that the penalty may fairly be said to serve. A sanction
constitutes punishment when, as applied to an individual, it serves
the goals of punishment. Halper, 490 U.S. at 448. Since
punishment serves the two goals of retribution and deterrence, a
civil sanction which serves only retributive or deterrent purposes
constitutes punishment. Haloer, 490 U.S. at 448. However, the
Court also carefully limited its holding in Halper to the "care
case" in which a fixed penalty provision subjects a prolific but
small-gauge offender to a sanction overwhelmingly disproportionate
to the damages he has caused--a point which, for the most part, was
lost in the plethora of double jeopardy cases that followed in
Halper's wake.
Following Halper, in another case involving criminal charges
and a civil forfeiture arising out of the same incident, the United
States Supreme Court considered whether a civil forfeiture could
violate the Excessive Fines Clause of the Eighth Amendment to the
Constitution, which provides that "excessive bail shall not be
required, nor excessive fines imposed . .(I Austin, 509 U.S. at
605. In Austin, the government initiated civil forfeiture
proceedings against a body shop and mobile home owner after the
11
owner pleaded guilty to possessing cocaine with intent to
distribute. The defendant contested the forfeiture based on the
Excessive Fines Clause, but the district court and the court of
appeals held the forfeiture constitutional. Urserv, Nos. 95-345
and 95-346, slip op. at 12. The Court limited its review to the
question of "whether the Excessive Fines Clause of the Eighth
Amendment applies to forfeitures of property under 21 U.S.C.
§§881ia) 14) and (a) (7;)" and more specifically whether a forfeiture
under §§881iai (4) and (a) (7) constituted punishment for purposes of
the Eighth Amendment. Austin, 509 U.S. at 610. The Court held
that forfeiture under 55881(a) (4) and (a) (7) is subject to the
limitations of the Eighth Amendment's Excessive Fines Clause.
Austin, 509 U.S. at 622.
In its next related double jeopardy case, the United States
Supreme Court considered the question of whether a state tax
imposed on marijuana violated the Double Jeopardy Clause when the
taxpayer had already been criminally convicted of owning the
marijuana for which he was taxed. ~,
Kurth 114 S.Ct. at 1941. In
that case, the Court granted certiorari because our decision in
Sorensen v. State Dep't of Revenue (1992), 254 Mont. 61, 836 P.2d
29, upholding the Montana Drug Tax as not being excessive was
"directly at odds with the conclusion reached in the federal
proceedings involving the Kurths," to the effect that the tax
punished the Kurths a second time for the same conduct. Kurth, 114
S.Ct. at 1944. The Kurth Court questioned whether Montana's drug
tax was so punitive as to constitute a punishment subject to the
Double Jeopardy Clause. The tax was conditioned on the commission
12
of a crime, was imposed after the taxpayer had been arrested, and
was imposed on a taxpayer after the marijuana had been confiscated
and presumably destroyed at the time the tax was imposed. These
factors led the Court to hold that the tax was motivated by a
"penal and prohibitory intent rather than the gathering of
revenue." Kurth, 114 S.Ct. at 1947.
Concluding that the Montana tax proceeding was the functional
equivalent of a successive criminal prosecution, the Court upheld
the federal district court judgment barring the tax. The Court
stated that Montana's tax being conditioned on the commission of a
crime was significant of penal and prohibitory intent. Moreover,
the Court noted that because tax statutes served a purpose
different from civil penalties, it concluded that the Halper test
for civil penalties did not apply to tax statutes. Rather, the
Court's central inquiry was whether the sanction imposed was
rationally related to the damages the government suffered. Kurth,
114 S.Ct. at 1944. The Court held that Montana's drug tax was not
the kind of remedial sanction that may follow the punishment of a
criminal offense, but instead, constituted a second punishment
prohibited by the double jeopardy provision of the Constitution.
Faced with the Haloer, Austin, and Kurth trilogy, in cases too
numerous to mention, federal and state courts (including this
Court) have tried in varying ways to apply the principles
enunciated by the Supreme Court to factually diverse situations
involving civil sanctions and criminal charges arising from the
same incident. See, i.e.
- I Sorensen, 836 P.Zd 29 (effectively
overruled by Kurth); Stuart v. Dept. of Social and Rehab. Serv.
13
(1993) I 256 Mont. 231, 846 P.2d 965 (discussed later in this
opinion) ; and Nelson, 910 P.Zd 247 (involving inmates being
convicted of criminal escape subsequent to their administrative
forfeiture of good time for the same conduct).
Important to our discussion here, however, are two circuit
courts of appeal decisions wherein the courts were faced with
double jeopardy claims based on fact situations specifically
related to employment situations. In both cases, the courts
distinguished Halper while, at the same time, applying its general
principles.
In &&, the Eleventh Circuit held that a disciplinary
suspension imposed on a government employee at an arbitration
proceeding did not implicate double jeopardy concerns where a
subsequent prosecution for embezzlement was based on the same
underlying conduct. ~,
Reed 937 F.2d at 578. In that case, the
defendant was discharged from his job as a letter carrier after the
Postal Service accused him of misappropriating money he received
from postal customers for COD parcels. Reed, 937 F.Zd at 576. The
defendant filed a grievance challenging his termination and
initiated binding arbitration. Reed was subsequently charged by
criminal indictment. The government conceded that the criminal
prosecution concerned the same conduct at issue in the arbitration
proceeding. Relying heavily on Halper, the defendant argued that
the criminal prosecution following the disciplinary suspension
violated the Double Jeopardy Clause's protection against multiple
punishments for the same offense.
14
The Reed court held that Haloer announced a rule for the "rare
case" and did not apply to the disciplinary suspension at issue.
Specifically, the court concluded that the civil sanction was not
imposed according to a statutory fixed-penalty provision, as in
Halper, but, rather, as a result of a binding arbitration decision.
Moreover, the court stated that because no damage award was imposed
on the defendant, the Halter test necessitating a balancing of
money damages with the government's loss was inapposite to the
facts. Reed, 937 F.2d at 577.
Notwithstanding, the court did look to Haloer in framing its
double jeopardy analysis noting that "the determination whether a
given civil sanction constitutes punishment in the relevant sense
requires a particularized assessment of the penalty imposed and the
purposes that the penalty may fairly be said to serve." ~,
Reed 937
F.2d at 577 (quoting Halper, 490 U.S. at 448). Importantly, the
court held that the sanction of suspension from employment was an
attempt to vindicate the contract rights of the government and the
defendant and therefore served "legitimate nonpunitive governmental
objectives" and was by its nature remedial. ~, 937 F.2d at 578.
Reed
The court also noted that while the disciplinary suspension may
carry the sting of punishment for the defendant, the Court in
Halper stated that whether a civil sanction amounts to punishment
for double jeopardy purposes is not determined from the defendant's
perspective. Moreover, the court concluded that the application of
the Haloer test to a disciplinary suspension would work an absurd
result.
15
If such was the law, then a government employee targeted
by a criminal prosecution for actions taken within the
scope of his employment could pursue arbitration, where
that was an option, and thereby possibly avoid criminal
sanctions greater in severity than any arbitrator's
decision. We will not offer up the Double Jeopardy
Clause as a forum-shopping tool for government employees
who have violated the law.
Reed, 937 F.2d at 578.
The Sixth Circuit followed the reasoning of &&. & Payne,
2 F.3d 706. In Payne, the court held that an administrative
termination did not amount to punishment for double jeopardy
purposes because the postal service dismissed the employee for the
legitimate purpose of enforcing its employment contract. Payne, 2
F.3d at 710-11. In Pavne, a grand jury charged defendant with
soliciting bribes, attempting to solicit bribes, obstructing mail,
and deserting mail. A jury found the defendant guilty of
obstruction and desertion of mail. Before the federal indictment,
the United States Post Office administrator had removed the
defendant from employment for substantially the same allegations as
the federal indictment. Payne, 2 F.3d at 708, 710.
Payne contended that the Double Jeopardy Clause prevented the
government from bringing criminal charges against him because the
postal service had already punished him by removing him from its
employment. The court however analogized to Reed and held that
since the suspension from employment served "legitimate nonpunitive
governmental objectives under the employment contract, it did not
amount, to punishment for double jeopardy purposes." Payne, 2 F.3d
at 710.
16
Similarly, in a somewhat related context, the Supreme Court of
Hawaii recently addressed the issue of whether a suspension of a
doctor's medical license based on his conviction for attempted
first-degree sexual abuse and kidnapping violated the Double
Jeopardy Clause. ~,
Loui 889 P.2d at 707. The doctor relied mainly
on Halper to argue that the suspension of his medical license after
he had been previously sentenced by the circuit court violated the
Fifth Amendment's protection against multiple punishments for the
same offense. Loui contended that the purpose of the suspension
was to deter him from committing the same offense again and served
no remedial purpose but could only be characterized as retribution.
-r 889 P.2d at 710.
Loui
The Hawaii Supreme Court rejected the doctor's argument.
Rather, the court viewed Halper as applying mainly to instances
where the government seeks monetary damages unrelated to the goal
of making the government whole by way of a civil proceeding against
an individual who has already been criminally punished for the same
offense. u, 889 P.2d at 711. The court distinguished Halper,
noting that the suspension of a doctor's license did not involve
monetary damages and thus the Halper test that "requires a
comparison between the civil penalty and the government's loss
resulting from defendant's conduct" did not apply. ~,
Loui 889 P.2d
at 711 (citing Reed, 937 F.2d at 577). Instead, the court looked
to the broad principle of determining the purpose actually served
by the sanction in question. In -, the court concluded that the
Loui
suspension was designed to protect the public from unfit physicians
and therefore served legitimate nonpunitive governmental objectives
17
and thus did not amount to a violation of the Double Jeopardy
ClaUSe. m, 889 P.2d at 711-13.
Likewise, while not directly on point, this court has
tangentially considered the application of the Double Jeopardy
Clause to an employment situation. In Stuart, we considered and
rejected the appellant's claim, based on Halner, that the Montana
Department of Social and Rehabilitative Services' refusal to pay
employees for their accrued vacation following their termination
for cause violated the Double Jeopardy Clause within the particular
statutory context in which the case arose. Stuart, 846 P.2d at
968-69.
We noted that in Halper, the government sought to enforce an
actual statutory civil sanction or penalty against a person who had
already been punished in a criminal prosecution. Stuart, 846 P.Zd
at 969. We determined that Halper was inapposite and focused our
analysis on the question of whether the statute at issue, § 2-18-
617, MCA, constituted a civil sanction. "'Sanction' is defined by
the Webster's Third New International Dictionary as the 'detriment,
loss of reward, or other coercive intervention that is annexed to
a violation of a law as a means of enforcing the law . .I'I
Stuart, 846 P.2d at 969. We concluded that while the facts in
Halper clearly met the definition, in Stuart there was no
subsequent proceeding annexed to a violation of any law and
therefore the State's refusal to compensate the appellants for
their accrued vacation leave did not constitute a civil sanction.
"Failure to satisfy a condition does not equate to violating a law
18
and facing an additional enforcement proceeding." Stuart, 846 P.2d
at 969.
As is apparent from the foregoing discussion, in the context
of scenarios (including employment situations), where the facts are
distinguishable and where the differing goals of civil vs. criminal
sanctions are evident, courts faced with Halper-based double
jeopardy claims have attempted to more narrowly apply the broad
general principles enunciated in that case, as further expanded or
narrowed, depending upon one's perspective, in Austin and Kurth.
Importantly, that approach is consistent with the Supreme Court's
most recent double jeopardy ruling in Urserv wherein the Court
clarified and narrowed the breadth of its holdings in Haloer,
Austin, and w. Moreover, of particular interest in the instant
case, the Court's analysis in Urserv supports the approaches and
decisions of the courts in Reed, Payne, and m. Ursery, Nos. 95-
345 and 95-346, slip op. at 14.
In Ursery, police found marijuana growing adjacent to the
defendant's house and discovered seeds, stems, a growlight, and
other marijuana paraphernalia. The police subsequently initiated
forfeiture proceedings against the house. Before the forfeiture
settlement had been reached, the defendant was indicted, convicted,
and sentenced for manufacturing marijuana. The court of appeals
held that the criminal conviction violated the Double Jeopardy
Clause, basing its decision on its analysis that Halper and Austin
meant that civil forfeiture under 5881(a) (7) constitutes punishment
for purposes of the Double Jeopardy Clause and more specifically,
19
that the defendant had been punished in the forfeiture proceeding
and could not subsequently be criminally tried.
Disagreeing, the Supreme court noted that 'I [slince the
earliest years of this Nation, Congress has authorized the
Government to seek parallel in rem civil forfeiture actions and
criminal prosecutions based upon the same underlying events."
Ursery, Nos. 95-345 and 95-346, slip op. at 5. The Court
delineated the question as whether a forfeiture proceeding is by
its nature criminal and punitive or civil and remedial. According
to Ursery, that inquiry is two-fold. First, the Court looked to
Congress' intent: whether such proceedings had traditionally been
viewed as civil proceedings; whether such proceedings reached a
broader range of conduct than their criminal analogue; and whether
such proceedings furthered broad remedial aims. Second, the Court
looked to whether the statutory scheme was so punitive either in
purpose or effect as to negate Congress' intention to establish a
civil remedial mechanism which balances the government's harm
against the size of the penalty. Ursery, Nos. 95-345 and 95-346,
slip op. at 9.
The Court concluded that civil forfeiture does not qualify as
an additional penalty for the commission of a criminals act, but
rather as a separate civil sanction that is remedial in nature.
The Court carefully distinguished in personam penalties from in rem
forfeitures. The Court accordingly limited Haloer's double
jeopardy rule to civil penalties. "Civil penalties are designed as
a rough form of 'liquidated damages' for the harms suffered by the
Government as a result of a defendant's conduct." Urserv, Nos. 95-
20
345 and 95-346, slip op. at 15. The Court determined that civil
forfeitures, in contrast to civil penalties, do more than simply
compensate the government. The Court observed that it is virtually
impossible to quantify, even approximately, the nonpunitive
purposes served by a particular civil forfeiture. Therefore,
according to the Court, as a practical matter, it is difficult to
determine whether a particular forfeiture bears a rational
relationship to the nonpunitive purposes of that forfeiture or
whether it does not. Urserv, Nos. 95-345 and 95-346, slip op. at
16. In a footnote answering Justice Stevens' dissent, the majority
clarified that for a second sanction to pass constitutional muster,
it may be partly deterrent or retributive, but must be at least in
part remedial.
Importantly, the Urserv Court stated that it would not apply
the Halper analysis outside the context of a fixed-penalty
provision, and noted that it had declined to apply Halper's method
of determining whether a penalty is remedial or punitive to Kurth
because Kurth involved a tax statute and not a fixed-penalty
provision. The Court also expressly limited its holding in Austin
to the Excessive Fines Clause of the Eighth Amendment and declined
to import the analysis of Austin into double jeopardy
jurisprudence. In summary, the Court effectively narrowed Haloer,
Kurth, and Austin to their specific fact situations.
Turning, then, to the instant case, the District Court relied
on Kurth to conclude that Schnittgen's termination from employment
constituted a disproportionately severe civil punishment arising
out of the precise conduct for which he was criminally prosecuted
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and that the criminal charge therefore violated the Double Jeopardy
Clause's proscription against multiple punishments for the same
offense. The State argues that the District Court erred in
applying Kurth's analysis to the instant case and further contends
that Halper also is distinguishable from the facts before us. We
agree.
In line with - I
Reed Payne, and Loui and the Supreme Court's
narrower interpretation of Halper, Austin, and Kurth in Urserv, we
conclude that the instant case is not controlled by the latter
trilogy. As pointed out above, in Halper, the Court announced
a rule for the rare case . . where a fixed-penalty
provision subjects a prolific but small-gauge offender to
a sanction overwhelmingly disproportionate to the damages
he has caused.
Halper, 490 U.S. at 1902.
The instant case does not present the "rare case" envisioned
in Halper nor does it implicate a fixed-penalty provision of a
statutory scheme. Rather, this case involves an employment
termination arising out of an incident wherein the employee's
alleged conduct that resulted in his termination also subjected him
to criminal prosecution. On this ground, alone, Halper is
factually distinguishable. In the instant case, contrary to the
conclusion of the trial court, Schnittgen was not subject to a
sanction "overwhelmingly disproportionate" to the damages he
caused. An employment termination is not a sanction that can
readily be measured as proportionate or disproportionate to the
"damages caused." It is obvious that an employee may be
legitimately discharged from his employment for reasons that do not
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involve his having caused any "damage," as such. Similarly, an
employment termination is not normally characterized in terms of
being either a "fine" or a "penalty."
Furthermore, the instant case does not implicate the Eighth
Amendment and, therefore, Austin is clearly inapplicable. Urserv,
Nos. 95-345 and 95-346, slip op. at 15. Additionally, in contrast
to Kurth, the instant case does not involve a tax. Even in Kurth,
the Court pointedly distinguished Haloer because Haloer involved a
civil penalty and not a tax. Therefore, the inquiry central to
Kurth--whether the tax imposed was rationally related to the
damages the government suffered--does not apply in the context of
an employment termination.
Indeed, assuming as true for purposes of this opinion only,
the factual bases for his discharge and for the criminal charges
filed against him as set forth herein, Schnittgen's termination was
rationally related to the remedial purpose of permitting the
Phillips County Sheriff's Office to protect the public safety and
property and to promote public confidence and trust in those
officers sworn to uphold and enforce the law. That remedial
purpose includes, at least, the ability of the government to ensure
that its officers do not, themselves, pose a threat to the public's
safety, confidence and trust, and to property via the sort of
conduct alleged here. Whether the facts recited above actually
prove to be true for purposes of any further civil or criminal
proceedings involving Schnittgen remains, of course, to be seen.
We decide here only that a public employee may be both terminated
23
from his employment and prosecuted criminally on the same facts
without violation of the Double Jeopardy Clause.
We conclude that the facts alleged in the instant case are
analogous to those in -I
Reed Pavne, and -I
Loui and we, therefore,
adopt similar reasoning. Schnittgen's termination served the
legitimate nonpunitive governmental objectives mentioned above.
While the Haloer test does not apply to the instant case, its broad
principle of determining whether a civil sanction constitutes
punishment by assessing the purposes that "the penalty may fairly
be said to serve" provides guidance. The employment termination in
the instant case did not serve the purpose of punishment but
instead served the remedial purpose of protecting public safety and
property and of promoting public confidence and trust in law
enforcement.
Just as importantly, applying the Halper test to the instant
case would work an obviously absurd result not intended by the
Court. By holding that the Double Jeopardy Clause precludes the
government from both discharging an employee from his employment
and prosecuting him criminally for the same alleged unlawful
conduct would effectively force the government to elect between two
equally repugnant and insupportable courses of action. The public
employer would be forced either to retain the employee in order to
prosecute him or terminate him and forego requiring him to answer
for his alleged criminal conduct in the courts. In effect, by
committing a criminal act, the public employee would gain job
security or, alternatively, immunity from prosecution. That result
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would not only be absurd, but the fact that a non-public employee
would not have the benefit'of this constitutional Catch-22 would
likely implicate equal protection problems, as well.
Accordingly, we choose not to extend the protection afforded
by the Double Jeopardy Clause to remedial employment termination
situations where the conduct involved also subjects the employee to
criminal prosecution. We, like the court in Reed
- I decline to
"offer up the Double Jeopardy Clause as a forum-shopping tool for
government employees who have violated the law."
Schnittgen lawfully faced two proceedings based on his alleged
actions on the evening of March 29, 1996-criminal prosecution and
employment termination. The Double Jeopardy Clause is not
implicated. Therefore,
we-hold that the District Court erred in
/
its interpretation of the law. averse.
Justices
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