State v. Wolf

549 N.W.2d 183, 250 Neb. 352, 1996 Neb. LEXIS 133

• Court: Nebraska Supreme Court
• Decided: June 21, 1996
• Docket: S-95-478
• Status: Published

Opinions

Per Curiam.

This is an appeal from an order denying a plea in bar. Bernard L. Wolf contends that his prosecution for possession of a controlled substance under Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 1994), is barred by the Double Jeopardy Clauses to the federal Constitution’s Fifth Amendment and art. I, § 12, of the Nebraska Constitution. We affirm.

BACKGROUND

By his own admission, Bernard L. Wolf has suffered from an addiction to prescription drugs since his teenage years. For reasons perhaps more opportunistic than prudent, Wolf chose pharmacy as his career and began working at Midlands Community Hospital after securing from the State his license to practice pharmacy. Wolf’s actions in his capacity as a state-licensed pharmacist first came under scrutiny in July 1994, when the Nebraska Department of Health Investigations Division instigated an investigation of missing cocaine, narcotics, barbiturates, and tranquilizers, including triazolam and alprazolam. Triazolam and alprazolam are among the controlled substances enumerated in Neb. Rev. Stat. § 28-405 (Cum. Supps. 1992 & 1994); the drugs are better known by their respective trade names, Halcion and Xanax.

The Department of Health eventually traced the missing substances to Wolf. On August 30, 1994, Wolf admitted in an interview with a Department of Health investigator to diverting an assortment of drugs from the hospital pharmacy for his personal edification and without a prescription for the 6 to 9 months preceding the interview. Wolf stated that he had most recently taken drugs from the pharmacy in the first week of August 1994, that he had ingested Halcion and Xanax at that time, and that he was addicted to prescription drugs and alcohol.

The Department of Health supplied its findings, including its interview with Wolf, to the offices of the Nebraska Attorney General and the Sarpy County Attorney. The Attorney General filed a petition for disciplinary action against Wolf before the director of the Department of Health. This petition alleged that (1) Wolf had an active dependency on or addiction to controlled substances or narcotic drugs, (2) Wolf knowingly or intentionally acquired or attempted to acquire possession of controlled substances by theft and knowingly or intentionally possessed controlled substances when he was not authorized to do so in violation of § 28-416 and Neb. Rev. Stat. § 28-418 (Reissue 1995), and (3) Wolf’s actions constituted dishonorable conduct evidencing unfitness. The petition stated that Wolf’s actions constituted grounds for disciplinary action pursuant to Neb. Rev. Stat. § 71-147(17) (Cum. Supp. 1994), and prayed for relief under any or all of the provisions of Neb. Rev. Stat. § 71-155 (Cum. Supp. 1994).

The record does not indicate the date of filing of the Attorney General’s petition against Wolf, nor does the record indicate what, if anything, transpired between the filing of the petition and the ultimate conclusion of the proceeding. At any rate, the proceedings before the director of the Department of Health concluded on December 9, 1994, when Wolf entered into a settlement agreement with the Attorney General. As a condition of the agreement, Wolf elected not to contest most of the Attorney General’s allegations and further admitted to the allegation concerning his active dependency on or addiction to the use of controlled substances and alcohol. Wolf agreed to pursue a new career other than in pharmacy and agreed that his license could be revoked.

On February 23, 1995, the Sarpy County Attorney filed an information in the district court, charging Wolf with one count of knowingly and intentionally possessing Halcion, in violation of § 28-416(3), between May 1 and August 30, 1994, and one count of knowingly and intentionally possessing Xanax, in violation of § 28-416(3), during the same period. Wolf filed a plea in bar, alleging that the criminal charges against him violated constitutional prohibitions against being twice put in jeopardy for the same offense. The district court overruled Wolf’s plea, and Wolf appealed; we granted the State’s petition to bypass the Nebraska Court of Appeals for immediate review of this issue of first impression.

Wolf assigns one error: The district court for Sarpy County erred in denying his plea in bar. An issue regarding the denial of a plea in bar is a question of law. State v. Sinsel, 249 Neb. 369, 543 N.W.2d 457 (1996). Our resolution of this issue turns on whether the proceedings before the director of the Department of Health resulted in “punishment” as it is defined by the U.S. Supreme Court for double jeopardy purposes.

DOUBLE JEOPARDY AND CIVIL PENALTIES IN NEBRASKA

The Double Jeopardy Clause protects against three abuses of the criminal justice system: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989). Wolf alleges that he was subjected to multiple punishments for the same offense, i.e., the possibility of a $10,000 fine in the civil proceeding subjected him to “punishment” in the first proceeding and that, therefore, the subsequent criminal prosecution necessitates multiple defenses for the same underlying offense. The validity of Wolf’s allegations, thus, turns on whether Wolf faced punishment in the civil proceeding before the director of the Department of Health.

The seminal case on double jeopardy implications of civil proceedings is Halper, supra. In Halper, the U.S. Supreme Court invalidated a $130,000 penalty imposed under the civil False Claims Act, 31 U.S.C. §§ 3729 to 3731 (1982 & Supp. Ill 1985). The defendant already had been convicted of violating the criminal false claims statute and sentenced to 2 years’ imprisonment and fined $5,000. On appeal, the defendant argued that the $130,000 penalty, despite its genesis in a civil proceeding, constituted a second punishment for a single offense. The Supreme Court agreed, finding that

[wjhere a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as “punishment” in the plain meaning of the word, then the defendant is entitled to an accounting of the Government’s damages and costs to determine if the penalty sought in fact constitutes a second punishment.

490 U.S. at 449-50. Under Halper, when a civil penalty has only a deterrent purpose and is devoid of any remedial purpose, that penalty is “punishment” in substance, regardless of the fact that it is civil in name.

This court first defined the punitive limits of civil penalties under Halper in State v. Hansen, 249 Neb. 177, 542 N.W.2d 424 (1996), cert. denied No. 95-8782, 1996 WL 226750 (U.S. June 10, 1996). Hansen arose from a double jeopardy challenge to Nebraska’s administrative license revocation (ALR) scheme, wherein persons arrested for driving under the influence of alcohol face driver’s license revocation by the Nebraska Department of Motor Vehicles in addition to criminal punishment. Despite Hansen’s claim that ALR appeared to qualify as punishment, we found that a civil sanction rises to the level of “punishment” when it “ ‘may not fairly be characterized as remedial, but only as a deterrent or retribution.’ ” Id. at 185, 542 N.W.2d at 430.

Under Hansen, the fact that a statute designed primarily to serve remedial purposes secondarily serves the exemplary purpose of general deterrence as well precludes a finding that the statute results in punishment for double jeopardy purposes. This reasoning validated the ALR scheme, whose provisions, taken as a whole, serve primarily a remedial purpose of protecting Nebraskans from drunk drivers while also serving an exemplary purpose of deterring motorists from driving drunk. As Nebraska’s ALR scheme does not serve primarily a deterrent or retributive purpose, ALR does not trigger Double Jeopardy Clause protections. Our task in this case is to determine whether the same can be said of the statutes under which Wolf was prosecuted.

DOUBLE JEOPARDY IMPLICATIONS OF PROFESSIONAL LICENSE REVOCATION

In the proceedings before the director of the Department of Health, Wolf faced penalties listed in § 71-155, which enables the Director of Health “to exercise in his or her discretion any or all of the following powers”:

(1) Issue a censure or reprimand against the licensee, certificate holder, or registrant;

(2) Suspend judgment;

(3) Place the licensee, certificate holder, or registrant on probation;

(4) Place a limitation or limitations on the license, certificate, or registration and upon the right of the licensee, certificate holder, or registrant to practice the profession to such extent, scope, or type of practice, for such time, and under such conditions as are found necessary and proper;

(5) Impose a civil penalty not to exceed ten thousand dollars. The amount of the penalty shall be based on the severity of the violation;

(6) Enter an order of suspension of the license, certificate, or registration;

(7) Enter an order of revocation of the license, certificate, or registration; and

(8) Dismiss the action.

Wolf contends that the provisions of § 71-155 constitute “punishment,” such that the attempt to subsequently prosecute him criminally results in an impermissible attempt to punish him twice for the same offense.

The revocation or suspension of a professional license generally does not constitute “punishment” for the purposes of double jeopardy analysis. See Hansen, supra (noting that some other courts have found that professional license revocation serves remedial purpose of protecting public from unfit practitioners). Our analysis cannot end at this point, however, because § 71-155 threatens not only remedial penalties of license revocation, but also “a civil penalty not to exceed ten thousand dollars.” § 71-155(5). Wolf argues that the $10,000 fine constitutes punishment and that, therefore, because the proceeding before the Department of Health could have resulted in the imposition of punishment, he is being subjected to multiple punishments for the same offense.

Under State v. Hansen, 249 Neb. 177, 185, 542 N.W.2d 424, 430 (1996), cert. denied No. 95-8782, 1996 WL 226750 (U.S. June 10, 1996), a penalty must bear a rational relation to the costs to government of the violation and must not appear “to qualify as ‘punishment’ in the plain meaning of the word.” (Quoting United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989)). The amount of a civil penalty need not equal the exact amount of damages caused to the government, as the government is entitled to “rough justice.” 490 U.S. at 449. However, where a civil penalty “does not remotely approximate the Government’s damages and actual costs . . . rough justice becomes clear injustice.” 490 U.S. at 446. Were it clear that the possible $10,000 fine provided for in § 71-155 lacked any remedial purpose and did not “remotely approximate the Government’s . . . costs,” then this court could find that indeed Wolf was subject to punishment. However, we conclude that Wolf was not “punished” in the first proceeding as no fine was actually imposed.

While a $10,000 fine imposed under § 71-155 may well serve a punitive purpose in certain cases, this court will not assume in a vacuum that a potential fine not actually imposed could serve only primarily punitive purposes as applied against Wolf. In fact, the fine, if imposed, might have merely compensated the State for its approximate investigative or prosecutorial expenses. Such expenses might well increase according to the severity of the violation or the deceptiveness of the violator during the investigation, and a fine that recoups some of these costs for the State would assume remedial qualities.

As stated in Halper, “a civil remedy does not rise to the level of ‘punishment’ merely because Congress provided for civil recovery in excess of the Government’s actual damages . . . .” 490 U.S. at 442. Rather the analysis of the court must focus on “whether a civil sanction, in application, may be so divorced from any remedial goal that it constitutes ‘punishment’ for the purpose of double jeopardy analysis.” (Emphasis supplied.) 490 U.S. at 443. The Double Jeopardy Clause’s prohibition against multiple punishment is “intrinsically personal. Its violation can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state.” (Emphasis supplied.) 490 U.S. at 447. Finally, “a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.” (Emphasis supplied.) 490 U.S. at 448. See, also, Hansen, supra (making particularized assessment of penalty actually imposed to determine if it constitutes “punishment” for purposes of double jeopardy).

Thus, the mere existence of a potential civil statutory sanction itself does not qualify as punishment under a Halper analysis. Rather, our analysis must focus on whether a civil sanction, in application, constitutes “punishment.” It necessarily follows that a civil sanction must be imposed in order to make an assessment of whether that particular sanction, in its application, constitutes punishment for the purpose of a double jeopardy analysis. See Halper, supra.

In Kvitka v. Board of Registration in Medicine, 407 Mass. 140, 551 N.E.2d 915 (1990), cert. denied 498 U.S. 823, 111 S. Ct. 74, 112 L. Ed. 2d 47, the Supreme Judicial Court of Massachusetts considered the validity of a statute similar in pertinent part to § 71-155. The appellant in that case had pled guilty to 10 counts of unlawfully dispensing controlled substances and was sentenced to a suspended prison sentence and a $60,000 fine; thereafter, the Board of Registration in Medicine revoked the appellant’s license to practice medicine and imposed an additional civil penalty of $10,000. The appellant brought a double jeopardy challenge to only the $10,000 civil penalty and did not contest the validity of the license revocation. While the court in Kvitka determined that the medical board had statutory authority to order the $10,000 fine by virtue of the disciplinary statute, the court determined that consideration of the double jeopardy claim was necessary because of the $60,000 fine imposed on the defendant in the preceding criminal case.

The Kvitka court invalidated the imposition of the $10,000 fine, holding that it could not survive in light of Halper'’s proscription of retribution and deterrence in nonpunitive governmental objectives. This conclusion was based on a particularized assessment of the motivations behind the actual imposition of the $10,000 civil penalty in Kvitka. Significantly, there was no indication in the record or in the text of the statute that the purpose of the $10,000 fine was remedial. Moreover, the Board of Registration in Medicine made clear its intent to punish the physician by imposing its $10,000 fine through its statement that “ ‘misconduct in the area of prescription practice will not be treated lightly.’ ” 407 Mass. at 145, 551 N.Ed.2d at 918. Therefore, because Kvitka had been previously criminally punished, the subsequent imposition of the civil penalty for punitive purposes was disallowed as violative of the Double Jeopardy Clause.

The difference between Kvitka and this case is that in the instant case, there was no fine or criminal-like sanction imposed in the first proceeding. While it makes no difference that the proceedings in Kvitka and this case are reversed in order, i.e., in Kvitka, there was a criminal prosecution first and a civil proceeding second, while here, there was a civil proceeding first and an attempted criminal prosecution second, it does make a difference that, unlike Kvitka, no fine was imposed in this case in the first proceeding. See Kvitka, 407 Mass. at 145, 551 N.E.2d at 918 (stating that “ ‘the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed’ ” and then proceeded to make such assessment). The facts in the instant case are clearly distinguishable from Kvitka.

Because the proceedings against Wolf before the director of the Department of Health did not result in punishment within the meaning of Halper and Hansen, we find that the district court ruled correctly in denying Wolf’s plea in bar.

Affirmed.