Ex Parte KH

700 So. 2d 1201, 1997 Ala. Crim. App. LEXIS 435, 1997 WL 448575
CourtCourt of Criminal Appeals of Alabama
DecidedAugust 6, 1997
DocketCR-96-1872
StatusPublished

This text of 700 So. 2d 1201 (Ex Parte KH) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte KH, 700 So. 2d 1201, 1997 Ala. Crim. App. LEXIS 435, 1997 WL 448575 (Ala. Ct. App. 1997).

Opinion

700 So.2d 1201 (1997)

Ex parte K.H.
(In re STATE of Alabama v. K.H.).

CR-96-1872.

Court of Criminal Appeals of Alabama.

August 6, 1997.

*1202 James D. Moffatt, Athens, for petitioner.

No brief filed for respondent.

LONG, Presiding Judge.

The petitioner, K.H.,[1] a high school student, filed this petition for a writ of mandamus, asking us to order the Honorable James W. Woodroof, circuit judge for the thirty-ninth judicial circuit, to dismiss the indictment against him. After K.H. was indicted for three counts of distributing a controlled substance and one count of possessing a controlled substance, the Limestone County Board of Education (the "Board") suspended him from regular classes, pursuant to § 16-1-24.1, Code of Alabama 1975, pending disposition of the criminal charges. The Board sent a notice of suspension to K.H.'s parents. The notice stated the following reason for the suspension: "Charges of criminal conduct that are pending which interferes with or obstructs the mission or operations of the Limestone County School System or the safety or welfare of students or employees." K.H. moved to dismiss the indictment, alleging as grounds that his suspension and criminal prosecution for the same conduct violated his right to be free from double jeopardy. Judge Woodroof denied the motion; this petition followed.

Initially, we must determine if a petition for a writ of mandamus is the appropriate vehicle by which to review a pretrial ruling on a motion to dismiss an indictment, which states as a ground a violation of the Double Jeopardy Clause. The Alabama Supreme Court addressed this issue in Ex parte Ziglar, 669 So.2d 133 (Ala.1995), where the Court, departing from the long-established practice of not reviewing double jeopardy issues by way of mandamus,[2] stated:

"We are satisfied that a criminal defendant with a double jeopardy defense should not be foreclosed from pretrial correction of a trial judge's erroneous denial of a plea of former jeopardy. Therefore, the appellate courts of this State will review double jeopardy claims properly presented by petitions for the writ of mandamus. Rule 21(e), Ala.R.App.P. This procedure will adequately protect the interest of a defendant, as emphasized in Abney [v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)], so as to avoid the personal strain, public embarrassment, and expense of a subsequent criminal trial."

669 So.2d at 135.

The Fifth Amendment to the United States Constitution provides:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger; nor shall any person be subject *1203 for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall property be taken for public use, without just compensation."

(Emphasis added.) See Alabama Constitution of 1901, Art. I, § 9.

K.H. contends that his suspension violates the Double Jeopardy Clause because, he says, the suspension was punitive in nature. K.H. cites United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and Crump v. Alabama Alcoholic Beverage Control Board, 678 So.2d 133 (Ala.Civ.App. 1995), cert. denied, 678 So.2d 140 (Ala.1996), in support of his contention. In Halper, the United States Supreme Court held that a civil penalty imposed in conjunction with a criminal prosecution amounts to a double jeopardy violation when the fine is so extreme that it amounts to punishment. In Crump, the appellant was charged with selling alcoholic beverages to a minor. She was acquitted of this criminal charge and was later named in a civil proceeding seeking to revoke her liquor license. Crump lost the civil suit and was fined $1,000. She argued on appeal that she had been twice put in jeopardy because, she said, the fine was punitive in nature. The Court of Civil Appeals, citing Halper, concluded that the purpose of the fine was to punish and held that the appellant had been twice put in jeopardy for the same offense.

Whether a suspension from school imposed pursuant to § 16-1-24.1, and a subsequent criminal prosecution for the offense that formed the basis of the suspension violates the Double Jeopardy Clause is an issue of first impression in Alabama. Other states such as Georgia, Kansas, Minnesota, and North Carolina have addressed this issue and found that these circumstances do not violate double jeopardy principles. See Clark v. State, 220 Ga.App. 251, 469 S.E.2d 250 (1996); In the Matter of C.M.J., 259 Kan. 854, 915 P.2d 62 (1996); In the Matter of the Welfare of E.R.D., 551 N.W.2d 238 (Minn. App.1996); State v. Davis, 485 S.E.2d 329 (N.C.App.1997).

Judge Norton, writing for the Minnesota Court of Appeals in E.R.D., addressed the issue now before this court. Judge Norton in depth, in a well-reasoned opinion, wrote:

"To support his claim that the school suspension is `punishment,' E.R.D. relies on United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). In Halper, the Supreme Court held that in `rare' instances a civil sanction may qualify as punishment for double jeopardy purposes if the sanction `may not fairly be characterized as remedial, but only as a deterrent or retribution.' Id. at 448-49, 109 S.Ct. at 1901-02. The Minnesota Supreme Court recently issued decisions applying the Halper analysis in the context of civil driver license revocation and administrative prison discipline proceedings, holding that neither proceeding constituted punishment for purposes of double jeopardy. State v. Hanson, 543 N.W.2d 84, 88-90 (Minn.1996) (civil license revocation followed by prosecution for driving under the influence does not violate Double Jeopardy Clause); [State v.] McKenzie, 542 N.W.2d [616] at 620-21 [(Minn.1996)] (disciplining prison inmate with placement in segregation and loss of good time credit served remedial purpose and did not bar subsequent criminal prosecution for same misconduct). The supreme court explained the Halper test:
"`Any sanction that only serves the goals of deterrence and retribution, and cannot be described as remedial, is "punishment" under Halper. In our view, this test permits the imposition of a civil sanction that can be "fairly characterized" as remedial, but also may deter or punish the offender.'
"McKenzie, 542 N.W.2d at 619.
"E.R.D. argues that the suspension here is not sufficiently related to any remedial purpose, but instead was intended only to serve purposes of punishment and deterrence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Abney v. United States
431 U.S. 651 (Supreme Court, 1977)
United States v. Halper
490 U.S. 435 (Supreme Court, 1989)
State, in Interest of Dandridge
614 So. 2d 129 (Louisiana Court of Appeal, 1993)
Ex Parte Ziglar
669 So. 2d 133 (Supreme Court of Alabama, 1995)
Coleman v. State
642 So. 2d 532 (Court of Criminal Appeals of Alabama, 1994)
State v. Davis
485 S.E.2d 329 (Court of Appeals of North Carolina, 1997)
In Re the Welfare of E.R.D.
551 N.W.2d 238 (Court of Appeals of Minnesota, 1996)
Clark v. State
469 S.E.2d 250 (Court of Appeals of Georgia, 1996)
Ex Parte Spears
621 So. 2d 1255 (Supreme Court of Alabama, 1993)
Jenkins v. State
367 So. 2d 587 (Court of Criminal Appeals of Alabama, 1978)
State v. Hanson
543 N.W.2d 84 (Supreme Court of Minnesota, 1996)
Crump v. Alabama Alcoholic Control Board
678 So. 2d 133 (Court of Civil Appeals of Alabama, 1995)
Ex parte K.H. v. K.H.
700 So. 2d 1201 (Court of Criminal Appeals of Alabama, 1997)
In re C.M.J.
915 P.2d 62 (Supreme Court of Kansas, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
700 So. 2d 1201, 1997 Ala. Crim. App. LEXIS 435, 1997 WL 448575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-kh-alacrimapp-1997.