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PAGE G. STUART, Petitioner/Appellant,

VS.

STATE OF TENNESSEE DEPARTMENT OF SAFETY, Respondent/Appellee.

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Davidson Chancery No. 94-1936-I Appeal No. 01-A-01-9601-CH-00033

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FILED
June 7, 1996 Cecil W. Crowson Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE

HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

RICHARD McGEE Washington Square Two, Suite 417 222 Second Avenue, North Nashville, Tennessee 37201 JOHN E. RODGERS, SR. Suite 1230, First American Center 315 Deaderick Street Nashville, Tennessee 37238-1230 ATTORNEYS FOR PETITIONER/APPELLANT

CHARLES W. BURSON Attorney General & Reporter JOHN ZIMMERMANN Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue, North Nashville, Tennessee 37201-1649 FOR RESPONDENT/APPELLEE

AFFIRMED AND REMANDED HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION CONCUR: SAMUEL L. LEWIS, JUDGE BEN H. CANTRELL, JUDGE

PAGE G. STUART, Petitioner/Appellant,

VS.

STATE OF TENNESSEE DEPARTMENT OF SAFETY, Respondent/Appellee.

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Davidson Chancery No. 94-1936-I Appeal No. 01-A-01-9601-CH-00033

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OPINION

This appeal involves a judicial review of administrative proceedings before the Commissioner of Safety seeking the release of property seized by law enforcement officers pursuant to T.C.A. Section 53-11-451.

From September 8, 1992 through June 18, 1993, law enforcement officers seized various properties allegedly connected with plaintiff's illegal drug activities. Plaintiff filed timely claims for release of the following properties: $120,406.00 in U.S. Currency, seized 9/8/92; $159,227.00 in U.S. Currency, seized 9/9/92; 1993 GMC Truck, VIN: 2GTEC19K1P1507785, seized 11/9/92 and 5/21/93; $3,000.00 in U.S. Currency, seized 4/12/93; $35,260.00 in U.S. Currency, Treasury Check for $8,820.00 and 100 Boxes of Sport Cards, seized 5/21/93; $315,000.00 in U.S. Currency, seized 6/3/93; and Two Cashier's Checks for $3,000.00 and $5,000.00, seized 6/18/93.

The claims were consolidated and to be heard in a single administrative proceeding. After plaintiff was convicted upon the charges upon which the seizures were based, his claims for the release of the seized property were heard at length before an administrative law judge and rejected. The commissioner affirmed the judgment of the administrative law judge, the claimant petitioned for judicial review, the trial judge affirmed the order of the commissioner, and plaintiff appealed to this court, presenting the following three issues:

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1. Whether civil forfeiture of property constitutes punishment for purposes of the Fifth and Eighth Amendment to the U.S. Constitution. 2. Whether the imposition of a civil penalty following Mr. Stuart's criminal conviction, violated the fifth Amendment Double Jeopardy Clause and Article I, Section 10 of the Tennessee State Constitution's prohibition against multiple punishment for the same offense under the rationale of United States v. Halper, 490 U.S. 435 (1989), Austin v. United States, --U.S. --, 113 S.Ct. 2801 (1993), Department of Revenue v. Kurth, --U.S.--, 114 S.Ct. 1937 (1994), and U.S. v. Ursery, 59 F.3d 568 (6th Cir. 1995). 3. Whether the forfeiture ordered by the Administrative Law Judge is an excessive fine in violation of the Eighth Amendment of the United States Constitution and Article I, Section 16 of the Tennessee State Constitution as it applies to civil forfeiture through Austin v. United States, --U.S.--, 113 S.Ct. 2801 (1993).

The Fifth Amendment of the United States Constitution provides: Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.

Article I Section 10 of the Constitution of Tennessee provides: No person shall, for the same offense, be twice put in jeopardy of life or limb.

The Eighth Amendment of the United States Constitution provides: Excessive bail shall not be required, nor excessive fines imposed . . . .

Claimant cites Department of Revenue of Montana v. Kurth Ranch, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), wherein a "sin tax" on criminal possession of marijuana was held invalid as representing double jeopardy after criminal conviction for the same crime. It was also held that the rule in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed. 487 (1989) was inapplicable to a case of "sin tax."

In U.S. v. Halper, it was held that a defendant who had already been criminally punished for filing false Medicare claims could be subjected to additional civil penalty under

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an act providing a penalty of $2,000 for each act in addition to actual expenses of investigation. The government sought $130,000 for 65 acts, when its expenses were only $16,000. The case was remanded to the trial court for determination of the question of excessiveness under the Eighth Amendment.

In Austin v. United States, 113 S.C. 2801, 125 L.Ed.2d 488 (1993), after a state court had sentenced Austin on his guilty plea to one count of possessing cocaine, the United States filed an in rem action to forfeit his mobile home and auto body shop under 21 U.S.C.

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