Opinion
Civil Action No. 99-2354-GTV.
May 23, 2000.
James T. George, Lawrence, KS, for KENNETH FAULK, aka Carl Kenneth Milo Faulk, plaintiff.
Joseph Brian Cox, Kansas Department of Revenue, Topeka, KS, for ALLEN ANDERSON and HARRY TIFFANY, defendants.
MEMORANDUM AND ORDER
Plaintiff Kenneth Faulk brings this action under 42 U.S.C. § 1983, alleging that his rights under the Double Jeopardy and Excessive Fines clauses of the United States Constitution were violated when his driver's license was revoked pursuant to the Kansas habitual traffic violators act, K.S.A. §§ 8-284 et seq. Plaintiff also seeks to amend his complaint to add an additional count alleging that the revocation of his driver's license violated his Fourteenth Amendment due process rights under the United States Constitution. The matter is before the court on defendant's motion to dismiss (Doc. 8), and on plaintiff's motion to amend his complaint (Doc. 13). For the reasons set forth below, defendant's motion to dismiss is granted, and plaintiff's motion to amend is denied.
I. BACKGROUND
Plaintiff was convicted twice in 1996 for driving without insurance and once in 1998 for driving on a suspended license. Approximately two months after plaintiff's 1998 conviction, Gary Carter, then Chief of the Driver Control Bureau for the Kansas Department of Revenue's Division of Vehicles, revoked plaintiff's license for three years pursuant to the Kansas habitual traffic violators act, K.S.A. §§ 8-284et seq. The habitual violators act provides for such a revocation upon conviction of three or more enumerated offenses, including driving without insurance and driving on a suspended license, within a five year period. Id. 8-284 to -285. Defendant, a successor Chief of the Driver Control Bureau, is currently enforcing the revocation of plaintiff's driver's license. Plaintiff requests that the court enjoin defendant from enforcing the provisions of the habitual violators act against him and order the reinstatement of his driver's license.
II. MOTION TO DISMISS
Defendant moves to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The court begins by noting that defendant filed his motion to dismiss after submitting his answer in this case. Technically, it is impermissible under the Federal Rules to submit an answer and thereafter file a Rule 12(b)(6) motion to dismiss. Fed.R.Civ.P. 12(b). However, because Rule 12(h)(2) permits the court to consider "[a] defense of failure to state a claim upon which relief can be granted" within a Rule 12(c) motion for judgment on the pleadings, the court will treat defendant's motion as if it had been submitted under Rule 12(c). See Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990);Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). The distinction between the two rules is purely one of procedural semantics, however. The court will employ the same standard that it uses to analyze a Rule 12(b)(6) motion to dismiss to evaluate a Rule 12(c) motion for judgment on the pleadings, such as this one, that contains a defense of failure to state a claim upon which relief can be granted. See Wescott, 901 F.2d at 1488; 61A Am. Jur. 2d Pleading § 615 (1999).
The motion to dismiss (Doc. 8) was filed by former Chief of the Driver Control Bureau Allen Anderson. Because defendant Tiffany was substituted as the defendant, the court construes the motion as if it had been filed by defendant Tiffany. See Fed.R.Civ.P. 25(d).
A Rule 12(b)(6) motion to dismiss will be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling him to relief under his theory of recovery. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true."Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). The court must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed. See id.; Fed.R.Civ.P. 8(f). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Harlow v. Fitzgerald, 457 U.S. 800 (1982).
Finally, to establish a claim under § 1983, "a plaintiff must allege a deprivation of a federally protected right under color of state law."Malek v. Haun, 26 F.3d 1013, 1015 (10th Cir. 1994) (internal citation omitted).
A. Double Jeopardy Clause
In Count I of his complaint, plaintiff alleges that the revocation of his driver's license under the Kansas habitual traffic violators act infringed upon his constitutional right against double jeopardy under the Fifth and Fourteenth Amendments. Defendant argues that the Double Jeopardy Clause does not apply to this case because the revocation of plaintiff's driver's license constitutes a civil, not criminal, penalty. The court agrees with defendant and concludes that Count I of plaintiff's complaint fails to state a claim upon which relief can be granted.
The Double Jeopardy Clause provides that no "person [shall] be subject for the same offence to be put in jeopardy of life or limb." U.S. Const. amend. V. "The Clause protects only against the imposition of multiple criminal punishments for the same offense, and then only when such occurs in successive proceedings." Hudson v. United States, 522 U.S. 93, 99 (1997) (internal citations omitted). The Clause does not apply to sanctions that are civil in nature. See id.; Breed v. Jones, 421 U.S. 519, 528 (1975); United States ex rel. Marcus v. Hess, 317 U.S. 537, 548-49 (1943); Helvering v. Mitchell, 303 U.S. 391, 398-99 (1938).
In Hudson, the United States Supreme Court outlined a two-prong test for determining whether a particular punishment is civil or criminal in nature. 522 U.S. at 99-100. First, the court must construe the challenged statute to determine whether the legislature intended to establish a criminal or civil punishment. See id. at 99. Second, even in those cases where the legislature intended to establish a civil sanction, the court must inquire into whether the purpose or effect of the statutory scheme is so punitive as to transform the intended civil sanction into a criminal penalty. See id. In evaluating the potential punitive effect or purpose of the challenged statutory scheme, the court is to consider the following seven factors in relation to the statute on its face:
(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."Id. at 99-100 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)). "'[O]nly the clearest proof' [of punitive effect or purpose] will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Id. at 100 (citing United States v. Ward, 448 U.S. 242, 249 (1980)).
Applying the first prong of the Hudson test to the Kansas habitual traffic violators act, the court finds that the Kansas legislature intended to establish a civil sanction. First, while the statute contains no express language denominating the license revocation as a civil sanction, the legislature's primary purpose in enacting the statute appears to have been to protect the public from dangerous drivers on Kansas highways, rather than to punish the dangerous drivers themselves. See K.S.A. § 8-284. Second, the legislature delegated the duty of enforcing the statute's provisions to the Division of Vehicles, an administrative agency. See K.S.A. § 8-286. The delegation of such a duty to an administrative agency is prima facie evidence that the legislature intended to provide for a civil sanction. See Hudson, 522 U.S. at 103. Finally, the court is persuaded by the rationale of the Kansas state courts, which have repeatedly held that the Kansas act provides for a civil penalty. See Kansas v. Boos, 659 P.2d 224, 230 (Kan. 1983); Kansas v. Walden, 803 P.2d 1054, 1056 (Kan.Ct.App. 1990); Kansas v. Hines, 783 P.2d 350, 352-53 (Kan.Ct.App. 1989).
The overwhelming majority of courts across the country that have construed similar habitual violator statutes to be civil in nature, and, therefore, not subject to the provisions of the Double Jeopardy Clause. See James L. Isham, Annotation, Automobiles: Validity and Construction of Legislation Authorizing Revocation or Suspension of Operator's License for "Habitual," "Persistent," or "Frequent" Violations of Traffic Regulations, 48 A.L.R. 4th 367, § 27 (1986) (collecting cases).
Turning to the second prong of the Hudson test, the court finds that the civil sanction provided for by the Kansas act is not so punitive in either purpose or effect as to transform it into a criminal penalty. In so finding, the court has examined each of the seven factors outlined by the Hudson court and concludes that the "clearest proof" necessary to override the legislature's intent to provide a civil sanction under the Kansas act has not been shown in this case.
In sum, because the Double Jeopardy Clause does not apply to the civil sanction imposed against plaintiff under the Kansas habitual traffic violators act, defendant has not deprived plaintiff of a federally protected right under color of state law. Accordingly, plaintiff has failed to state a claim upon which relief can be granted, and the court, therefore, dismisses Count I of plaintiff's complaint.
B. Excessive Fines Clause
In Count II of his complaint, plaintiff alleges that the revocation of his driver's license constituted an excessive fine in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Defendant argues that the Excessive Fines Clause is inapplicable to this case because the revocation of plaintiff's driver's license is neither a "fine," a "punishment," nor "excessive." The court agrees with defendant and concludes that Count II of plaintiff's complaint fails to state a claim upon which relief can be granted.
The Eighth Amendment of the United States Constitution provides that "excessive fines" shall not be imposed. U.S. Const. amend. VIII. The Excessive Fines Clause "limits the government's power to extract payments, whether in cash or in kind, 'as punishment for some offense.'" United States v. Bajakajian, 524 U.S. 321, 328 (1998) (quoting Austin v. United States, 509 U.S. 602, 609-10 (1993)). To be considered a "fine" subject to the provisions of the Excessive Fines Clause, the purpose of the particular sanction must not be purely remedial; the sanction must have some deterrent or retributive purposes. See Austin, 509 U.S. at 609-10. If a particular sanction is determined to be a "fine" subject to the provisions of the Excessive Fines Clause, the court will deem it unconstitutional only if "it is grossly disproportional to the gravity of a defendant's offense."Bajakajian, 524 U.S. at 334.
In this case, the temporary revocation of plaintiff's driver's license cannot be considered a "fine" for Excessive Fines Clause purposes because the revocation does not constitute a "payment in cash or in kind." See, e.g., In re Sharp, 674 A.2d 899, 900 (D.C. 1996) (stating that the revocation of an attorney's "license" to practice law does not invoke the Excessive Fines Clause because it is not a payment); see also Coleman v. Watt, 40 F.3d 255, 263 (8th Cir. 1994) (holding that a deprivation must be "permanent" to be considered a fine for purposes of the Excessive Fines Clause). However, even if the revocation of plaintiff's license could be considered a "fine" for purposes of the Excessive Fines Clause, the court holds that the sanction is not so "grossly disproportional" to the gravity of plaintiff's offense as to deem it unconstitutional under the Clause.
The court recognizes that to reach the proportionality question, the revocation of plaintiff's driver's license must also be considered a "punishment" for purposes of the Excessive Fines Clause. See Austin, 509 U.S. at 609-10. The court has already found that the Kansas habitual traffic violators act's purpose is primarily remedial — to protect the public from dangerous drivers on the Kansas highways. However, because the act is also intended to provide some deterrence to repeat offenders, see K.S.A. 8-284(c), the revocation of plaintiff's license may be considered a "punishment" for Eighth Amendment purposes.
In sum, because the revocation of plaintiff's driver's license was neither a "fine" nor "excessive," the Eighth Amendment's prohibition against excessive fines was not violated in this case. Accordingly, plaintiff has failed to state a claim upon which relief can be granted under § 1983, and the court, therefore, dismisses Count II of plaintiff's complaint.
III. MOTION TO AMEND
Plaintiff moves to amend his complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure to add a count alleging that the procedure used by defendant to revoke his driver's license violated his due process rights under the Fourteenth Amendment to the United States Constitution. Generally, leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). However, a court may decline to permit a futile amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962). An amendment is considered futile if it would be unable to "withstand a motion to dismiss or otherwise fails to state a claim." Lyle v. Commodity Credit Corp., 898 F. Supp. 808, 810 (D. Kan. 1995) (citing Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992); Schepp v. Fremont County, 900 F.2d 1448, 1451 (10th Cir. 1990)). Accordingly, the court will examine plaintiff's proposed amendment to determine whether it would withstand a motion to dismiss under the Federal Rules of Civil Procedure.
Plaintiff advances two arguments in support of his motion to amend his complaint. First, plaintiff argues that his due process rights were violated because the Kansas habitual traffic violators act does not require that individuals whose licenses are to be revoked receive actual notice of the revocation. Second, plaintiff contends that due process demands that he receive a hearing prior to the revocation of his license. The court has examined plaintiff's arguments and concludes that plaintiff's proposed amendment is futile because it would be unable to withstand a motion to dismiss.
First, plaintiff lacks standing to argue that his due process rights were violated on the ground that the habitual violators act does not require actual notice of revocation. At no point has plaintiff alleged, nor does he propose to allege, that he failed to receive notice of his license revocation. Rather, plaintiff bases his argument on the proposition that other habitual violators have purportedly failed to receive notice. However, to have standing to argue that his due process rights were violated, plaintiff must "allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."Allen v. Wright, 468 U.S. 737, 751 (1984). Plaintiff does not have standing to assert a violation of rights belonging to another. See Doyle v Oklahoma Bar Ass'n, 998 F.2d 1559, 1566 (10th Cir. 1993). Because plaintiff has not actually suffered any injury with respect to receipt of notice, he lacks standing to assert that claim.
Second, plaintiff's argument that due process demands a predeprivation hearing is without merit. Plaintiff is correct in his contention that the Fourteenth Amendment's Due Process Clause applies to a state's revocation of an individual's driver's license. See Bell v. Burson, 402 U.S. 535, 539 (1971). The Kansas Supreme Court, however, has held that "[a] prerevocation hearing is not needed."Kansas v. Heironimus, 941 P.2d 1356, 1363 (Kan. 1997) (citations omitted). "The only issues involved [in the habitual violator determination] are whether the Division's records reflect the requisite convictions, and the identity of the violator." Id.; K.S.A. § 8-286. "Conviction existence, dates, and identity are readily verifiable recordkeeping matters appropriately administratively reviewed through written correspondence. The post-revocation review procedure provided [in K.S.A.] 8-255(c) is sufficient for due process purposes." Heironimus, 941 P.2d at 1363; see also Dixon v. Love, 431 U.S. 105, 115 (1977).
In conclusion, because plaintiff's proposed due process claim could not withstand a motion to dismiss, the court denies plaintiff's motion for leave to amend his complaint.
IT IS, THEREFORE, BY THE COURT ORDERED that defendant's motion to dismiss (Doc. 8) is granted.
IT IS FURTHER ORDERED that plaintiff's motion to amend his complaint (Doc. 13) is denied.
Copies of this order shall be mailed to counsel of record for the parties.
The case is closed.
IT IS SO ORDERED.
Dated at Kansas City, Kansas, this 22 day of May, 2000.