Myrie v. Comm'r N.J. Dept. of Corrections, s. 99-6059

• Decision Date: 08 January 2001
• Docket Number: Nos. 99-6059,s. 99-6059
• Parties: (3rd Cir. 2001) JUNIOR SAMUEL MYRIE, APPELLANT, v. COMMISSIONER, N.J. DEPARTMENT OF CORRECTIONS; DONALD E. LEWIS, WARDEN; CORU, BUREAU OF AUDIT & ACCOUNTS; JOHN DOES, NUMBERS 1 THROUGH 10, (FICTITIOUS NAMES) MEMBERS OF THE ADMINISTRATION RIVERFRONT STATE PRISON; RICHARD ROES, NUMBERS 1 THROUGH 10, (FICTITIOUS NAMES) MEMBERS OF THE COMMISSIONER OF DEPARTMENT OF CORRECTIONS OFFICE NORWOOD L. WHITE, APPELLANT v. JACK TERHUNE; STEVEN PINCHAK & 99-6060 Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 251

267 F.3d 251 (3rd Cir. 2001)

JUNIOR SAMUEL MYRIE, APPELLANT, v. COMMISSIONER, N.J. DEPARTMENT OF CORRECTIONS; DONALD E. LEWIS, WARDEN; CORU, BUREAU OF AUDIT & ACCOUNTS; JOHN DOES, NUMBERS 1 THROUGH 10, (FICTITIOUS NAMES) MEMBERS OF THE ADMINISTRATION RIVERFRONT STATE PRISON; RICHARD ROES, NUMBERS 1 THROUGH 10, (FICTITIOUS NAMES) MEMBERS OF THE COMMISSIONER OF DEPARTMENT OF CORRECTIONS OFFICE

NORWOOD L. WHITE, APPELLANT v. JACK TERHUNE; STEVEN PINCHAK

Nos. 99-6059 & 99-6060

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: January 8, 2001

Filed September 21, 2001

On Appeal from the United States District Court for the District of New Jersey District Judge: Honorable Anne E. Thompson (D.C. No. 98-CV-03708 & D.C. No. 98-CV-04356)

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Richard S. Lehrich, Esq. Laura M. Le Winn, Esq. (Argued) 190 North Avenue East P.O. Box 8 Cranford, New Jersey 07016 Counsel for Appellants

John J. Farmer, Jr., Esq. Attorney General of New Jersey Mary C. Jacobson, Esq. Assistant Attorney General Jeffrey K. Gladden, Esq. (Argued) Deputy Attorney General R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, N.J. 08625, Counsel for Appellees

Before: Scirica and Ambro, Circuit Judges and POLLAK,^* District Judge

OPINION OF THE COURT

Pollak, District Judge

On this consolidated appeal of two cases jointly adjudicated in the District Court for the District of New Jersey, Junior Samuel Myrie and Norwood L. White, both of whom are inmates of New Jersey prisons, contend that the District Court erred in sustaining the validity-- challenged under several provisions of the Constitution of the United States and cognate provisions of the Constitution of New Jersey -- of N.J. Stat. Ann. S 30:4-15. The statute provides:

CHAPTER 396

An Act concerning payment of Crime Compensation Board assessments and supplementing Title 30 of the Revised Statutes.

BE IT ENACTED by the Senate and General Assembly of the State of New Jersey:

C.30:4-15.1 Collection of "VCCB Surcharge" by commissary in correctional facility.

1. Every commissary in a county or State correctional facility operated for the sale of commodities shall collect a surcharge of 10% of the sales price of every item sold. The surcharge shall be known as the "VCCB Surcharge." All funds collected pursuant to this section shall be forwarded to the State Treasurer for deposit in the Victims of Crime Compensation Board Account, shall be subject to reporting and accounting procedures pursuant to the provisions of section 2 of P.L. 1979, c.396 (C.2C:43:3.l) and shall be used in satisfying claims pursuant to the provisions of the "Criminal Injuries Compensation Act of 1971," P.L. 1971, c.317 (C.52:4B-1 et seq.). A sale subject to surcharge under this section shall not be subject to any tax imposed under the "Sales and Use Tax Act," P.L. 1966, c.30 (C.54:32B-1 et seq.).

2. This act shall take effect immediately but section 1 shall remain inoperative until the 180th day following enactment.

Section 30:4-15.1 was enacted in January of 1998 and went into effect in July of that year. Between August and December of 1998 ten lawsuits asserting, inter alia, the invalidity of S 30:4-15.1 were filed in the District Court pursuant to 42 U.S.C. S 1983. The plaintiffs-- one of whom was Mr. Myrie and another of whom was Mr. White-- in these several lawsuits were all persons incarcerated in state or county prisons in New Jersey. The defendants were state officials, led by (then) Governor Whitman. The District Court consolidated the several lawsuits for the limited purpose of dealing in unified fashion with their common ingredient -- the constitutional claims involving S 30:4- 15.1. The federal constitutional claims were that the statute violated the double jeopardy, ex post facto, bill of attainder, and excessive fines clauses¹, and also deprived the plaintiffs of due process and equal protection. The state constitutional claims were based on those provisions of the New Jersey Constitution that are counterparts of the federal constitutional clauses.² On cross-motions for summary judgment with respect to those common constitutional claims, the District Court, in a thoughtful and comprehensive opinion, granted summary judgment in favor of the defendants. Thereafter, because (unlike some of the other lawsuits) the lawsuits brought by Mr. Myrie and Mr. White advanced no other claims, final judgment was entered against Mr. Myrie and Mr. White. They have both appealed.

I. Double Jeopardy, Ex Post Facto, and Bill of Attainder

The double jeopardy, ex post facto, and bill of attainder provisions are discrete constitutional protections addressed to distinct types of impermissibly oppressive governmental constraints. But they have a common thread: they only apply to those situations in which the injury complained of constitutes an imposition or exaction of a "criminal" rather than a "civil" nature. See Rex Trailer Co. v. United States, 350 U.S. 148, 154 (1956).

In Hudson v. United States, 522 U.S. 93 (1997), a case in which the Supreme Court rejected a contention that criminal prosecutions undertaken following the imposition of sanctions imposed by a civil regulatory agency constituted double jeopardy, the Court (speaking through Chief Justice Rehnquist, and building upon its earlier decision in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)), formulated the pertinent analytic scheme in the following terms:

Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. Helvering [v. Mitchell, 303 U.S. 391], 399[(1938)]. A court must first ask whether the legislature, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." [United States v.] Ward, 448 U.S. 242, 248 [(1980)]. Even in those cases where the legislature "has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect," id., at 248- 249, as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty," Rex Trailer Co. v. United States, 350 U.S. 148, 154 (1956).

In making this latter determination the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168- 169 (1963), provide useful guideposts, including: (1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter"; (4)"whether its operation will promote the traditional aims of punishment-retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned." It is important to note, however, that "these factors must be considered in relation to the statute on its face," id., at 169, and "only the clearest proof " will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty. Ward, supra at 249 (internal quotation marks omitted).

522 U.S. at 99-100.

In the cases under review the District Court examined the double jeopardy, ex post facto, and bill of attainder challenges to S 30:4-15.1 through the prism of the Court's opinions in Hudson and Mendoza-Martinez. On appeal the parties agree that Hudson/Mendoza-Martinez is the appropriate constitutional template, but appellants (Junior Myrie and Norwood White) argue that the District Court misapplied it, while appellees (the State officials) argue that the District Court got it right.

We concur in the parties' acknowledgment that Hudson/Mendoza-Martinez is the proper rubric. We turn now to the application of its principles to appellants' claims.

A. Did the New Jersey Legislature intend S 30:4-15.1 to be a "civil" imposition or a "criminal" one?

As the Chief Justice explained in Hudson,"[w]hether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction.... A court must first ask whether the legislature, `in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.' " 522 U.S. at 99. F In Auge v. New Jersey Dep't of Corrections, 743 A.2d 315 (N.J. Super. 2000), a case decided shortly after the District Court's dismissal of appellants' claims, the Appellate Division of the New Jersey Superior Court rejected a New Jersey prison inmate's contention that Chapter 396 of the Laws of 1997 -- codified as S 30:4-15.1-- contravened his double jeopardy, ex post facto, and due process rights. The Auge court's opinion provides an instructive summary of the events -- going back to 1971 -- that led to the enactment of S 30:4-15.1:

In 1971, the Legislature enacted the Criminal Injuries Compensation Act (the Act). L. 1971, c. 317, N.J.S.A. 52:4B-1 to 21. "The primary purpose of the Act is to provide compensation to persons who have suffered bodily injury from the commission of a serious crime." White v. Violent Crimes Compensation Bd., 76 N.J. 368, 386, 388 A.2d 206 (1978). However, the Legislature failed during the 1970s to appropriate sufficient funds to provide adequate and timely compensation to violent crimes victims in accordance with the Act. See Assembly Judiciary Law, Public Safety & Defense Committee, Statement to Assembly Bill No. 3648 (194 N.J. Leg., 2d Sess. 1979) (noting that as of 1977 "the number of claims as well as insufficient funding[had] created a situation where a claimant [had] to wait up to 3 years before receiving relief "). To establish an additional source of funding, the Legislature enacted Chapter 396 of the Laws of 1979 (N.J.S.A. 2C:43-3.1), which required any person convicted of any crime...