State v. Catlett

Page 355

133 Wn.2d 355

945 P.2d 700

STATE of Washington, Petitioner, v. Mary Catherine CATLETT, aka Mary C. Plata, Respondent.

No. 64266-4.

Supreme Court of Washington.

Argued Feb. 26, 1997.

Decided Oct. 16, 1997.

Jim Sweetser, Spokane County Prosecutor, Larry D. Steinmetz, Deputy Spokane County Prosecutor, Spokane, for Petitioner.

Brian C. O'Brien, Charles S. Dorn, Spokane, for Respondent.

Christine Gregoire, Attorney General, Frederick J. Caruso, Assistant Attorney General, Olympia, Amicus Curiae for the Attorney General.

TALMADGE, Justice.

We are asked yet again to enter the "maelstrom of judicial activity," to determine if the civil forfeiture of a person's automobile used to facilitate a drug transaction bars a subsequent criminal prosecution for the drug transaction on state and federal constitutional double jeopardy grounds. After United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), the Fifth Amendment to the United States Constitution does not bar such prosecution. We hold art. I, § 9 of the Washington Constitution does not bar such prosecution as well. We reverse the decision of the Court of Appeals and remand for further proceedings.

ISSUE

Does civil forfeiture of property pursuant to RCW 69.50.505 bar a subsequent criminal charge of delivery of a controlled substance under the double jeopardy provisions of either the federal or state constitutions?

FACTS

On October 25, 1993, members of the Spokane Police Department purchased "crack" cocaine from Mary Catlett (aka Mary C. Plata) through the use of a confidential informant. While under surveillance, the informant entered a residence in Spokane. Officers observed a white female (later identified as Catlett) arrive at the residence driving a blue 1982 Plymouth with Washington plates. Catlett entered the residence where the police informant purchased crack cocaine from her. Catlett then left the residence and drove away in the car. A registration check showed the vehicle's owner to be Mary C. Plata.

On November 19, 1993, officers obtained and executed a search warrant for another Spokane residence where drug transactions occurred. Catlett was present during the search and the police seized the 1982 Plymouth and other evidence.

On January 24, 1994, pursuant to RCW 69.50.505, the Spokane Police Department conducted a civil forfeiture hearing regarding Catlett's car. The hearing officer ordered the car forfeited to the City of Spokane, finding Catlett was involved in drug sales and her car was used to facilitate such activities.

Catlett was subsequently charged in the Spokane County Superior Court on June 27, 1994 with delivery of a controlled substance in violation of RCW 69.50.401(a). ¹ The trial court dismissed the charge stating:

The forfeiture of Mary Plata's vehicle pursuant to civil proceedings under RCW 69.50.505 is a punishment for purposes of federal and state double jeopardy analysis. Austin v. United States, 509 U.S. , 125 L.Ed.2d 488, 113 S.Ct. 2801 (1993); United States v. McCaslin, 863 F.Supp. 1299 (W.D.Wash.1994); State v. Clark, 124 Wash.2d 90, 101, 875 P.2d 613 (1994).

See App. A to Br. of Resp't to Court of Appeals, Findings of Fact and Conclusions of Law Re: Mot. to Dismiss For Violation of Double Jeopardy at 7-8.

On appeal, Division Three of the Court of Appeals affirmed the superior court's dismissal of the drug offense because a civil forfeiture of Catlett's car and a criminal prosecution for the controlled substance arising out of the same conduct constituted "punishment" for the "same offense," thus violating double jeopardy. State v. Catlett, 81 Wash.App. 791, 795-96, 916 P.2d 975 (1996). The court applied State v. Clark, 124 Wash.2d 90, 875 P.2d 613 (1994), which was, in turn, based on federal cases like Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), indicating civil forfeiture was "punishment" for purposes of the Fifth Amendment double jeopardy provision.

We granted the State's petition for review and asked the parties to respond to the following directive: "Within the time permitted by RAP 13.7(b), the parties shall submit additional briefs addressing the question whether, in light of United States v. Ursery, U.S. [sic] 116 S.Ct. 2135, 135 Led 2d [sic] 549 (1996), Wash. Const. Art. [sic] I, § 9 should be interpreted as more protective than the Double Jeopardy Clause of the Fifth Amendment."

ANALYSIS

A. The Prior Civil Forfeiture of Catlett's Car Was Not Punishment for Purposes of the Fifth Amendment

In our divided opinion in State v. Cole, 128 Wash.2d 262, 273, 906 P.2d 925 (1995), we recognized the above-mentioned "maelstrom of judicial activity" in the area of civil forfeiture and Fifth Amendment double jeopardy analysis. In three recent United States Supreme Court cases--addressing in personam civil penalties under the Double Jeopardy Clause, civil forfeiture under the Excessive Fines Clause, and tax proceedings under the Double Jeopardy Clause--the Court appeared to provide an avenue by which a civil forfeiture could be viewed as punishment so that a subsequent criminal prosecution for drug offenses would violate Fifth Amendment double jeopardy principles. See United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); and Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). Various courts and commentators extrapolated from these cases that civil forfeiture amounts to punishment for Fifth Amendment double jeopardy purposes. ²

In Ursery, decided after the Court of Appeals' decision in Catlett, the Supreme Court clearly held civil forfeitures are neither "punishment" nor criminal for double jeopardy purposes. Id. at ----, 116 S.Ct. at 2149. The Ursery court also clarified that the long-standing rule that civil forfeiture is remedial, enunciated in Various Items of Personal Property v. United States, 282 U.S. 577, 51 S.Ct. 282, 75 L.Ed. 558 (1931); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972); and United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984), was not abandoned or altered by its more recent decisions in Halper, Austin, or Kurth Ranch.

[N]othing in Halper, Kurth Ranch, or Austin, purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause.... [T]his Court consistently has found civil forfeitures not to constitute punishment under the Double Jeopardy Clause. It would have been quite remarkable for this Court both to have held unconstitutional a well-established practice, and to have overruled a long line of precedent, without having even suggested that it was doing so. Halper dealt with in personam civil penalties under the Double Jeopardy Clause; Kurth Ranch with a tax proceeding under the Double Jeopardy Clause; and Austin with civil forfeitures under the Excessive Fines Clause. None of those cases dealt with ... in rem civil forfeitures for purposes of the Double Jeopardy Clause.

Ursery, 518 U.S. at ----, 116 S.Ct. at 2147. The Ursery Court stated federal courts misread Halper, Austin and Kurth Ranch when they departed from the well-established rule that "civil forfeiture [does] not constitute 'punishment' for double jeopardy purposes." Ursery, 518 U.S. at ---- - ----, 116 S.Ct. at 2142-44. "None of those decisions purported to overrule the well-established teaching of Various Items, Emerald Cut Stones, and 89 Firearms." Id. at ----, 116 S.Ct. at 2144. Ursery settles the issue of whether a civil forfeiture is "punishment" for purposes of federal double jeopardy. It is not. Ursery is dispositive of the federal double jeopardy issue.

Catlett attempts to distinguish Ursery as a proceeds case, but it is not. In Ursery, the Supreme Court consolidated cases which dealt with civil forfeiture of both property as proceeds and property used to facilitate illegal drug processing and distribution, and held broadly "[t]hese civil forfeitures (and civil forfeitures generally), we hold, do not constitute 'punishment' for purposes of the Double Jeopardy Clause." Ursery, 518 U.S. at ---- - ----, 116 S.Ct. at 2138-39.

The Court of Appeals here relied upon our decision in Clark, which was, in turn, based on Austin, to find civil forfeiture amounted to "punishment" for purposes of Fifth Amendment double jeopardy analysis. Clark has been superseded by Ursery. ³ Clark is overruled as it relied exclusively on an analysis of the Fifth Amendment now rejected by Ursery. See Clark, 124 Wash.2d at 95-100, 875 P.2d 613.

Our decision on the Fifth Amendment, however, does not end our analysis because we have asked whether Catlett may claim further double jeopardy protection under the Washington Constitution.

B. Catlett's Prior Civil Forfeiture Was Not Punishment for Purposes of WASH. CONST. art. I, § 9

In analyzing Washington's constitutional double jeopardy provision, WASH. CONST. art. I, § 9, both parties in this case have addressed the question of whether the Fifth Amendment and art. I, § 9 are "coextensive." The State argues that they are coextensive, relying on the recent decision in State v. Gocken, 127 Wash.2d 95, 102, 896 P.2d 1267 (1995): "Washington courts have consistently held the double jeopardy clause of the Fifth Amendment and the double jeopardy clause in Const. art. I, § 9 are virtually identical." See also State v. Hennings, 129 Wash.2d 512, 527, 919 P.2d 580 (1996); State v. Hardesty, 129 Wash.2d 303, 309 n. 2, 915 P.2d 1080 (1996); State v. Cole, 128 Wash.2d 262, 274 n. 7, 906 P.2d 925 (1995); State v. Pascal, 108 Wash.2d 125, 131 n. 1, 736 P.2d 1065 (1987); State v. Ridgley, 70 Wash.2d 555, 556, 424 P.2d 632 (1967); State v. Schoel, 54 Wash.2d 388, 391, 341 P.2d 481 (1959).

Catlett argues for a protective...