USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-2057
RYAN ALLEN,
Petitioner, Appellant,
v.
ATTORNEY GENERAL OF THE STATE OF MAINE,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Aldrich, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Wayne R. Foote, with whom Foote & Temple was on brief, for
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appellant.
Joseph A. Wannemacher, Assistant Attorney General, with whom
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Andrew Ketterer, Attorney General, was on brief, for appellee.
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March 26, 1996
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SELYA, Circuit Judge. Invoking federal habeas corpus
SELYA, Circuit Judge.
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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
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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.
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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
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1The state legislature recently repealed, substantially
reenacted, and recodified the statutes in question. See, e.g.,
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29-A M.R.S.A. 2411 (West Supp. 1995) (providing criminal
penalties for OUI); id. 2451 (providing for administrative
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suspension of driver's licenses following OUI arrests); id.
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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.
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Savard, 659 A.2d 1265, 1268 (Me. 1995) (holding in materially
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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
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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.
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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.
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II
II
Before turning to the merits of the double jeopardy
claim, we discuss two potential procedural obstacles.
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2The State does not challenge either of these determinations
on appeal.
3
A.
A.
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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.
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Fair, 872 F.2d 1093, 1096 (1st Cir. 1989). In this instance, the
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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)
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(quoting Brown v. Ohio, 432 U.S. 161, 165 (1977)). To realize
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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
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U.S. 294, 302-03 (1984) (plurality op.); Gilliam v. Foster, 75
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F.3d 881, 904 (4th Cir. 1996); Mannes v. Gillespie, 967 F.2d
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4
1310, 1312 (9th Cir. 1992), cert. denied, 506 U.S. 1048 (1993).
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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.
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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,
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872 F.2d at 1096-97; see generally 28 U.S.C. 2254(b). We think
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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
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Nadworny, 872 F.2d at 1096 ("Requiring that remedies be exhausted
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in state courts is merely comity's juridical tool, embodying the
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3There are three general classes of double jeopardy claims.
See United States v. Rivera-Martinez, 931 F.2d 148, 152 (1st
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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
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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
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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);
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Robinson v. Berman, 594 F.2d 1, 3 (1st Cir. 1979). The law,
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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
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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
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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
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___ (1st Cir. 1996) [No. 95-2175]. Stoller involved a challenge,
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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
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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
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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].
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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
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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.
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Halper, 490 U.S. 435, 448-49 (1989); Stoller, ___ F.3d at ___
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[slip op. at 12-13].
7
A.
A.
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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
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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
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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-
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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
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similar statutory scheme to be remedial in nature); Savard, 659
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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
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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)
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(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.
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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.
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Ct. 1937 (1994), does not withstand scrutiny.
The petitioner contends that, under Kurth Ranch, a
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civil sanction predicated in terms on a prior arrest is
necessarily punitive. But the Kurth Ranch Court examined
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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
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attaching talismanic significance to any one of them. To the
contrary, Kurth Ranch makes it pellucid that these factors serve
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as harbingers which, when aggregated, will cast a sanction in
either a remedial or a punitive light. See id. at 1947. In this
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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
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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.,
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id. at ___ [slip op. at 25-26], and that unremarkable fact,
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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.
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1311-A(5)(B),5 but also must give the defendant credit for the
full elapsed period of the administrative suspension, see id.
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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)
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(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
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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
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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.
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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
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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
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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,
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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.
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Latessa, 72 F.3d 947, 954 (1st Cir. 1995) (reaffirming the
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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
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685, 699 (1st Cir.), cert. denied, 115 S. Ct. 298 (1994).
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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.
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Minnesota Public Interest Research Group, 468 U.S. 841, 855 n.15
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(1984), and such is the case here.
Brushing aside the parsley, the meat of the
petitioner's entire proffer comprises only two comments. See
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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
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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
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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
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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).
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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
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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.
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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
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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
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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
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HHS, 3 F.3d 539, 542-43 (1st Cir. 1993) (explaining that "an
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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
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(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;
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Stoller, ___ F.3d at ___ [slip op. at 19].
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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).
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The pivotal question is whether the sanction, as applied, exacts
rough remedial justice.7 See Halper, 490 U.S. at 446.
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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
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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,
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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
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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
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of Pub. Safety & Corrections, 609 So.2d 790, 797 (La. 1992). For
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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,
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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
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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.
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18