State v. Jacobson

• Decision Date: 15 March 1996
• Docket Number: Nos. 950259,950302,s. 950259
• Citation: 545 N.W.2d 152
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Bruce C. JACOBSON, Defendant and Appellee, STATE of North Dakota, Plaintiff and Appellant, v. Sheila Ann BARNES, Defendant and Appellee. Criminal
• Court: North Dakota Supreme Court

Page 152

545 N.W.2d 152

STATE of North Dakota, Plaintiff and Appellant, v. Bruce C. JACOBSON, Defendant and Appellee, STATE of North Dakota, Plaintiff and Appellant, v. Sheila Ann BARNES, Defendant and Appellee.

Criminal Nos. 950259, 950302.

Supreme Court of North Dakota.

March 15, 1996.

John E. Greenwood, State's Attorney, Jamestown, for plaintiffs and appellants.

Michael R. Hoffman, Bismarck, for defendants and appellees.

NEUMANN, Justice.

Consolidated for oral argument and disposition, these cases raise the question whether the double jeopardy clause in North Dakota's state constitution and section 29-01-07 of the North Dakota Century Code require an interpretation different than the double jeopardy clause in the federal constitution for a DUI arrestee faced with an administrative license suspension and a criminal conviction. In each case, the district court ruled a criminal prosecution subsequent to an administrative suspension would place the defendants in double jeopardy in violation of federal and state constitutional law, and granted the defendants' motions to dismiss. We reverse.

Defendants Jacobson and Barnes were charged with driving under the influence of alcohol. Following an administrative hearing, their drivers' licenses were suspended. Criminal charges ensued, and both defendants filed pre-trial motions to dismiss the charges based on double jeopardy grounds. They argued a criminal conviction and an administrative license suspension constitute multiple punishments for the same offense and thus violate, first, North Dakota statutory and constitutional law and, second, federal constitutional law.

This court's decision in State v. Zimmerman, 539 N.W.2d 49 (N.D.1995), disposes of the defendants' federal constitutional law argument. In Zimmerman, we addressed squarely the question whether, under the United States Constitution, a criminal prosecution for DUI constitutes double jeopardy when the defendant's driver's license previously had been suspended in an administrative hearing for the same DUI offense. We answered no.

Counsel for defendants also advanced a state statutory and constitutional law argument, urging this court to interpret punishment for purposes of double jeopardy analysis under North Dakota statutory and constitutional law different than under federal constitutional law. We decline the urging to overrule settled law. We adhere to this court's ruling in State v. Allesi, 216 N.W.2d 805 (N.D.1974) and, more recently, in City of Fargo v. Hector, 534 N.W.2d 821 (N.D.1995). Citing Allesi, we stated in Hector that "[t]he framers of our state constitution and the legislature in enacting [section 29-01-07] did not intend an interpretation different than the Double Jeopardy Clause of the United States Constitution." 534 N.W.2d at 823 (citing Allesi, 216 N.W.2d at 817-18).

Reversed.

SANDSTROM, J., concurs.

VANDE WALLE, Chief Justice, concurring specially.

I agree with Justice Levine's well-chronicled dissent to the extent that it demonstrates it is improvident to hold that a North Dakota constitutional provision will always be construed the same as a similar provision in the United States Constitution, or, for that matter, will always be construed differently than a similar provision in the United States Constitution. C.f. City of Grand Forks v. Grand Forks Herald, 307 N.W.2d 572, 579 (N.D.1981 VandeWalle, J., concurring specially) [Right of privacy under N.D. Constitution in personnel information in records of public agency not affecting operation of that agency not foreclosed by majority decision that no such rights exist in municipal personnel files]. State v. Allesi, 216 N.W.2d 805 (N.D.1974), which appeared to adopt such a conclusive approach, recognized in Syllabus 8 by the Court that "[e]ach case in which a double-jeopardy violation is asserted must turn on its own facts." Significantly, the United States Supreme Court has not yet decided the precise question we here consider although several State appellate courts have considered the issue under the Federal Constitution. State v. Zimmerman, 539 N.W.2d 49 (N.D.1995). Therefore, we can only predict what the Federal Constitution protection provides; we cannot adopt a construction not yet announced.

It is one thing to conclude that the framers of the North Dakota Constitution intended nothing more or nothing less [as noted by Justice Levine the first Ten Amendments had not yet been made applicable to the States in 1889, so "less" was a possible intent] than the construction intended by the framers of the United States Constitution when that construction has been announced by the United States Supreme Court. It is something else to "buy-in," in 1974 or now, to a future and as yet unannounced construction. To analogize to rules of statutory construction when a statute is adopted from another State it is presumed the Legislature adopted the construction previously placed upon it by the courts of the State from which the statute was taken. E.g., State v. Dilger, 322 N.W.2d 461 (N.D.1982). No such presumption exists when the interpretation and construction by the courts do not precede the adoption of the statute. E.g., State v. Wells, 276 N.W.2d 679 (N.D.1979), cert. denied, 442 U.S. 932, 99 S.Ct. 2865, 61 L.Ed.2d 300 (1979).

However, I do not agree with Justice Levine's conclusion that administrative sanctions are punitive. I adhere to the analysis in Zimmerman that administrative suspension of the license is remedial. The same "realistic" look that the dissent takes, i.e., lack of access to mass transit from the standpoint of the individual and the "punishment" imposed by license revocation, is equally true of the remedial nature of the remedy. The lack of mass transit makes it necessary for a greater proportion of our citizens to use the roads and highways; thus it is also necessary to attempt to assure the safety of those roads and highways for that greater proportion. The remedial purpose of removing drunk drivers from the roads, which such a great proportion of our citizens must use because of the lack of mass transit, therefore dominates.

To hold it is a double-jeopardy violation for the imposition of administrative remedies when there is a criminal prosecution would be a substantial change in this State's legal history. It is a change that, under these facts, I believe is unwarranted and uncalled for by the North Dakota Constitution. The consequences of that holding clearly indicate to me there could have been no such intent by the framers of our Constitution. For example, I expect the framers would be startled, indeed, to learn that a license authorized by the Legislature could not be revoked by the licensing authority when the holder is convicted of a crime because it would violate the prohibition against double jeopardy; or, for another example, that a public school district, a government entity, could not suspend from its basketball team, a student convicted of driving while intoxicated because it would constitute double jeopardy. The dissent looks "realistically" at what suspension of a license to drive means. We should also look "realistically" at what the framers intended to prevent by the prohibition against double jeopardy. That look convinces me the suspension of the license to drive of a convicted drunk driver for the safety of the public was not what they intended to prevent.

MESCHKE, Justice, concurring.

While I agree with much of Justice Levine's dissent, I remain persuaded that State v. Zimmerman, 539 N.W.2d 49 (N.D.1995), was correctly decided. That precedent compels reversal here. Under either the United States Constitution or the North Dakota Constitution, I continue to believe the temporary loss of the driving privilege is mainly remedial for the good of the traveling public, not mainly punishment so that a later criminal prosecution might violate either constitutional prohibition against multiple prosecutions.

Particularly, I share Justice Levine's view of appellees' arguments as "thoughtful." I would add that they display exemplary advocacy!

I join in Justice Levine's conclusion that Allesi's unstudied pronouncement, that what is present Art. I, § 12 of the North Dakota Constitution intended the same result "mandated by the Fifth Amendment to the United States Constitution," was demonstrably "unsupported by authority or reasoning, and it deserves no further adherence." I therefore agree with her valedictory view that "our legislature has provided our citizens more double jeopardy protection than granted by the federal constitution," and that we should interpret our North Dakota Constitution's Double Jeopardy Clause independently. But I do not agree that compels a different result in this case.

A temporary forfeiture of the privilege to drive on public highways cannot be mainly punishment that triggers double jeopardy protection. Still, it remains to be determined to what extent forfeiture of substantial money or physical property, as a penalty for criminal conduct, may be punishment that triggers double jeopardy protection under the North Dakota Constitution or the United States Constitution. See United States v. Ursery, 59 F.3d 568 (6th Cir.1995), cert. granted, --- U.S. ----, 116 S.Ct. 762, 133 L.Ed.2d 707 (1996); United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994), cert. granted, --- U.S. ----, 116 S.Ct. 762, 133 L.Ed.2d 707 (1996). Compare Bennis v. Michigan, --- U.S. ----, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996) (5-4 decision that forfeiture of innocent co-owners interest in auto used by spouse in sexual activity with a prostitute does not offend Due Process Clause or Takings Clause). When we too confront those complex questions, I believe that Justice Levine's separate opinion in this case may very well play an important part in our deliberations.

SANDSTROM, Justice, concurring.

"The framers of North Dakota's Constitution must have intended more protection...