State v. McKeeth

• Citation: 136 Idaho 619,38 P.3d 1275
• Decision Date: 12 July 2001
• Docket Number: No. 26539.,26539.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. William McKEETH, Defendant-Appellant.
• Court: Court of Appeals of Idaho

38 P.3d 1275

136 Idaho 619

STATE of Idaho, Plaintiff-Respondent, v. William McKEETH, Defendant-Appellant.

No. 26539.

Court of Appeals of Idaho.

July 12, 2001.

Rehearing Denied October 18, 2001.

Review Denied January 28, 2002.

Nevin, Herzfelt, Benjamin & McKay, Dennis A. Benjamin (argued), Boise, for appellant.

Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General (argued), Boise, for respondent.

PERRY, Judge.

William McKeeth appeals from his judgments of conviction and sentences for six counts of sexual exploitation by a medical care provider. McKeeth also appeals from the restitution order. We affirm in part, vacate in part, and reverse in part.

I. BACKGROUND

On August 24, 1999, McKeeth, a licensed professional counselor, was charged with three counts of sexual exploitation by a medical care provider (Counts I-III). I.C. § 18-919. On September 16, 1999, the complaint was amended to include an additional three counts of sexual exploitation by a medical care provider (Counts IV-VI). The six counts stemmed from allegations that McKeeth had sexual contact with six female patients.

On January 10, 2000, a stipulation and consent order was finalized between McKeeth and the Idaho State Counselor Licensing Board (ISCLB). Pursuant to the stipulation, the ISCLB agreed not to proceed with formal disciplinary action regarding allegations identical to those in the amended criminal complaint and McKeeth agreed to "the imposition of discipline" against his professional license. Specifically, McKeeth agreed to: (1) a five-year suspension of his professional license; (2) not practice professional counseling in Idaho; (3) pay "an administrative fine" of $3000;¹ (4) pay investigative costs and attorney fees in the amount of $2,604; and (5) submit to counseling with a licensed mental health care provider. In addition, the order also delineated the requirements for reinstatement of McKeeth's professional license after the five-year period.

In his criminal case, McKeeth filed a motion to declare I.C. § 18-919 unconstitutional, a motion to dismiss for double jeopardy, and a motion to dismiss Counts I-III for violation of his right to a speedy trial. Following a hearing held on March 22, 2000, the district court denied these motions. McKeeth entered an I.C.R. 11 plea of guilty to the charged offenses, reserving his right to appeal the district court's denial of all pre-trial motions. The district court sentenced McKeeth to a one-year term of incarceration for each of the six counts of sexual exploitation by a medical care provider. The district court suspended all the sentences except for the sentence imposed for Count IV and imposed concurrent two-year terms of probation to run consecutive to the remaining one-year term of incarceration. Following a restitution hearing, the district court ordered McKeeth to pay $19,450.29 in restitution to the victims in this case. McKeeth appeals.

II. ANALYSIS

A. Double Jeopardy

McKeeth argues that the district court erred in denying his motion to dismiss the charges against him on the ground that his criminal prosecution violated his constitutional right against double jeopardy. McKeeth contends that he was criminally punished for double jeopardy purposes when the ISCLB imposed a fine of $3000² and that his subsequent criminal prosecution constituted a second punishment in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and Article I, Section 13 of the Idaho Constitution.

1. Federal Constitution

The Double Jeopardy Clause of the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The Double Jeopardy Clause protects against three abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple criminal punishments for the same offense. United States v. Halper, 490 U.S. 435, 441, 109 S.Ct. 1892, 1898, 104 L.Ed.2d 487, 497 (1989); State v. Talavera, 127 Idaho 700, 703, 905 P.2d 633, 636 (1995). It is the third of these protections at issue in the instant case. We must determine whether the sanctions imposed by the ISCLB constituted a criminal punishment within the meaning of the Double Jeopardy Clause so as to foreclose McKeeth's subsequent criminal prosecution based upon the identical allegations.

A determination of whether a particular punishment is criminal or civil is a two-step process. This Court must first inquire whether the legislature indicated either expressly or impliedly a preference that the punishment be labeled as criminal or civil. Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 493, 139 L.Ed.2d 450, 459 (1997); United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742, 749 (1980); see also Berglund v. Potlatch Corp., 129 Idaho 752, 756, 932 P.2d 875, 879 (1996). Even in those cases where the legislature has indicated an intention to establish a civil penalty, this Court must next inquire whether the statutory scheme was so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty. Hudson, 522 U.S. at 99,118 S.Ct. at 493,139 L.Ed.2d at 459; see also Berglund, 129 Idaho at 757,932 P.2d at 880. In making this later inquiry, the following factors provide useful guideposts: (1) whether 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 the behavior to which it applies is already a crime; (5) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (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 purposes assigned. Hudson, 522 U.S. at 99-100,118 S.Ct. at 493,139 L.Ed.2d at 459; Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644, 661 (1963). These factors must be considered in relation to the statute on its face, and no single factor is dispositive. See Hudson, 522 U.S. at 100-01,118 S.Ct. at 493-94,139 L.Ed.2d at 459-60; Kennedy, 372 U.S. at 169,83 S.Ct. at 568,9 L.Ed.2d at 661. Only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty. Hudson, 522 U.S. at 100,118 S.Ct. at 493,139 L.Ed.2d at 459; Kennedy, 372 U.S. at 169,83 S.Ct. at 568,9 L.Ed.2d at 661.

Our first inquiry is whether the legislature indicated either expressly or impliedly a preference that the fine of $3000 imposed upon McKeeth be labeled as criminal or civil. The power to regulate the practice of licensed counselors and licensed professional counselors in the state of Idaho is conferred upon the ISCLB. I.C. §§ 54-3404, 54-3407. The regulatory powers conferred upon the ISCLB are administered by the Bureau of Occupational Licenses (the Bureau). I.C. §§ 54-3413, 54-2414, 67-2602.³ By statute, the laws governing the professional counselors are administered by the Bureau. I.C. § 54-3413. As a result, the Bureau is statutorily authorized to "formulate rules for adoption by the boards establishing a schedule of civil fines" of $1,000 or less for violations of the law governing professional counselors. I.C. § 67-2609(7) (emphasis added). The Bureau is also instructed that any "civil fine collected by a board . . . shall be deposited in the bureau of occupational licensing account." Id. Thus, the legislature expressly indicated a preference that any disciplinary fine adopted by a state agency pursuant to I.C. § 67-2609(7) would be civil in nature.

Pursuant to authority delegated by I.C. § 67-2609(7), the ISCLB promulgated a rule stating that the "disciplinary procedures of the Bureau of Occupational Licenses are the disciplinary procedures of the Counselor Licensing Board." IDAPA 24.15.01.500.01. In addition, the ISCLB adopted a fine schedule which provided for the imposition of "a civil fine not to exceed one thousand dollars ($1000) upon a licensed counselor for each violation of Section 54-3407, Idaho Code." IDAPA 24.15.01.500.02 (emphasis added). Because the fine imposed by the ISCLB in the instant case was authorized by I.C. § 67-2609(7), this Court concludes that the legislature intended that the fine would be civil in nature.

Nevertheless, we must also inquire whether the statutory scheme governing the fine imposed upon McKeeth was so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty. First, the fine imposed by the ISCLB does not involve "an affirmative disability or restraint" as that term is normally understood. See Hudson, 522 U.S. at 104, 118 S.Ct. at 496, 139 L.Ed.2d at 462. Second, money penalties have not historically been viewed as punishment. Hudson, 522 U.S. at 104, 118 S.Ct. at 495, 139 L.Ed.2d at 462. The "payment of fixed or variable sums of money [is a] sanction[] which has been recognized as enforceable by civil proceedings since the original revenue law of 1789." Helvering v. Mitchell, 303 U.S. 391, 400, 58 S.Ct. 630, 633, 82 L.Ed. 917, 922 (1938); see also Hudson, 522 U.S. at 104, 118 S.Ct. at 496, 139 L.Ed.2d at 462.

Third, the stipulation provided that McKeeth had violated certain provisions of the American Counseling Association (ACA) Code of Ethics, which had been adopted by the ISCLB. See IDAPA 24.15.01.360. Provision A.7.a of the ACA Code of Ethics provides that counselors "do not have any type of sexual intimacies with clients." Provision C.5.e provides that counselors "do not use their professional positions to seek . . . sexual favors." These provisions prohibit conduct without regard to whether the perpetrator had knowledge of guilt. Thus, the fine...