State v. Kauble

State v. Kauble
1997 OK CR 70
948 P.2d 321
68 OBJ 3662
Case Number: S-97-436
Decided: 10/30/1997
Oklahoma Court of Criminal Appeals

O P I N I O N

CHAPEL, P.J.:

¶1 The State of Oklahoma appeals an order of the Cleveland County District Court dismissing a criminal case on the grounds of double jeopardy. For the reasons set forth below, we now reverse and remand.

¶2 On December 26, 1996, Ian Deki Kauble, a University of Oklahoma student, falsely reported a car-jacking to the University of Oklahoma Police Department. On January 15, 1997, the University of Oklahoma [University] instituted a disciplinary proceeding against Kauble charging him with violating [948 P.2d 322] Title 16.11 and 16.252 of the University of Oklahoma Student Code of Responsibility and Conduct for the Norman Campus, 1996-1997, (hereinafter Student Code) based on the false car-jacking report. Kauble negotiated a settlement with the University and pleaded guilty to the charge. The University placed him on disciplinary probation for one year and ordered him to complete 100 hours of community service in the University's Department of Student Support Services. Kauble and the University entered into this agreement on January 24, 1997.

¶3 On January 3, 1997, the State of Oklahoma charged Kauble in Cleveland County District Court, Case No. CM-97-20, with the misdemeanor offense of false reporting of a crime, in violation of 21 O.S.1991, § 589. In late March 1997, the defense moved to dismiss the criminal case. The defense argued that double jeopardy barred prosecution because the University had previously punished Kauble in a disciplinary proceeding for the same conduct. The district court agreed and dismissed the case. The State appealed.

¶4 The State's reserved question of law now before the Court is whether a sanction of probation and/or community service imposed by the University of Oklahoma in a school disciplinary proceeding bars future criminal proceedings for the same conduct in state court. This is an issue of first impression for this Court. However, the Court is not without guidance in answering this question. Both the United States Supreme Court3 and this Court4 have addressed the effect of the Double Jeopardy Clause on criminal and administrative proceedings.

¶5 "[T]he Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense."5 At issue here is the third "abuse" multiple punishment. Over the past ten years, the United States Supreme Court has expounded on multiple punishment in civil and criminal proceedings on several occasions. The first key case in this area is United States v. Halper.6

¶6 In Halper, the defendant was convicted in a criminal proceeding of presenting sixty-five false medical claims to Medicare and receiving $585 in overpayment from the federal government. Halper was sentenced to jail and fined $5000. After the criminal proceeding, the government instituted a civil proceeding concerning the same sixty-five false claims. The civil action would have subjected Halper to $130,000 in fines. The Court found that although the second proceeding was "civil," that characterization alone did not resolve the question of whether the penalty was punishment under the Double Jeopardy Clause. Rather the question of whether the penalty was punishment [948 P.2d 323] could be determined "only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state."7

¶7 The question of multiple punishment again arose in the context of civil tax proceedings. In Department of Revenue v. Kurth Ranch,

¶8 Since its decisions in Halper and Kurth Ranch, the Supreme Court in United States v. Ursery

To determine whether the revocation of a driver's license is punishment for double jeopardy purposes, one must review the purposes the revocation serves. If the revocation may be fairly characterized only as a deterrent or as retribution, then it is punishment. If the revocation may be fairly characterized as remedial, then it is not punishment for double jeopardy purposes. In order to ascertain whether license revocation is punitive, this Court must look at the purposes that the revocation serves rather than the effect of the revocation on a defendant.

¶10 We now turn to Kauble's case. The State of Oklahoma, acting through the University of Oklahoma,

¶11 Although Oklahoma courts have not directly addressed this issue, other courts have and not one court has found that sanctions imposed in a school disciplinary proceeding constitute punishment under the Double Jeopardy Clause.

¶12 Here, the University of Oklahoma disciplined Kauble for violating T.16.1 and T.16.25. of the Student Code. In a hearing before the district court, the State's attorney stated that the purpose of the discipline was remedial. The discipline was designed to protect the public from harm, to protect the University's resources and to protect other students. The State's attorney stated, "It's not to punish the defendant. It is to ensure that he graduates. It's to give him a chance to perhaps rehabilitate himself and graduate."

¶13 Kauble does not argue that the sanction of probation is punishment under the Double Jeopardy Clause. Rather, Kauble focuses on the sanction of "community service." Kauble argues that community service is different from the sanctions of suspension, probation or expulsion and cannot be deemed remedial. Kauble correctly points out that none of the cases discussing double jeopardy in the context of school disciplinary proceedings involves the sanction of community service. Kauble relies on this distinction and this particular sanction to argue that in his case the State imposed punishment in the University proceedings. We disagree.

¶14 The sanction of community service is only one of a number of sanctions that the University employs to protect its integrity, resources and to assist its students who have violated the Student Code. Community service is by no means the most severe sanction available. Kauble surely preferred community service to expulsion and being denied the opportunity to obtain a degree.

¶15 Accordingly, in answering the reserved question of law, we find that the Double Jeopardy Clause does not bar the criminal prosecution of Kauble in state court. The order of the district court is reversed and the case is remanded to the district court for further proceedings.

DECISION

¶16 The case is reversed and remanded to the district court for further proceedings.

APPELLANT'S ATTORNEYS

RICHARD STEVENS
ASSISTANT DISTRICT ATTORNEY
TRISHA MISAK
LEGAL INTERN
201 S. JONES, SUITE 210
NORMAN, OKLAHOMA 73069

APPELLEE'S ATTORNEYS

CINDY FOLEY
RODNEY UPHOFF
CODY TOWNS, LEGAL INTERN
300 TIMBERDELL
NORMAN, OKLAHOMA 73019

OPINION BY: CHAPEL, P.J.

FOOTNOTES

1 Title 16.1 provides that a violation of the University of Oklahoma Student Code includes:

All forms of dishonesty such as cheating, plagiarism, knowingly furnishing false information to the institution, forgery, alteration or misuse of institution records or documents, including University identification cards. When dishonesty is primarily related to an academic matter such as cheating or plagiarism, the provision of the Norman Campus Academic Misconduct Code shall apply.

O.R. at 59.

2 Title 16.25 provides that it is a violation of Student Code to violate "applicable Local, [S]tate or Federal laws." O.R. at 59.

3 United States v. Ursery, 518 U.S. ___, 116 S. Ct. 2135, 2146, 135 L. Ed. 2d 549 (1996) (finding Double Jeopardy Clause did not bar government from proceeding with both criminal prosecution and civil forfeiture proceeding because in rem civil forfeiture is not punishment); Department of Revenue v. Kurth Ranch, 511 U.S. 767, 770, 114 S. Ct. 1937, 1947, 128 L. Ed. 2d 767 (1994) (finding Montana's drug tax was punitive rather than remedial, Court concluded double jeopardy barred second proceeding to collect tax after criminal prosecution for possession of drugs); United States v. Halper, 490 U.S. 435, 449-50, 109 S. Ct. 1892, 1902, 104 L. Ed. 2d 487 (1989) (finding civil fine imposed under civil false claims statute, which was grossly disproportionate to damages incurred by government in prosecuting its claims, constituted punishment and was barred since defendant had been previously subjected to criminal punishment for same conduct).

4 Kane v. State, 915 P.2d 932 (Okl.Cr.1996); see also Lozoya v. State, 932 P.2d 22 (Okl.Cr.1997).

5 Halper, 490 U.S. at 440, 109 S. Ct. at 1897.

6 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989).

7 Id. at 447, 109 S. Ct. at 1901.

8 Id. at 448-49, 109 S. Ct. at 1902.

9 Id. at 449, 109 S. Ct. at 1902

10 511 U.S. 767, 770, 114 S. Ct. 1937, 1947-48, 128 L. Ed. 2d 767 (1994).

11 Id., 114 S. Ct. at 1948.

12 518 U.S.___, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996).

13 Id. at ___, 116 S. Ct. at 2140-42, 2149.

14 Id. at ___, 116 S. Ct. at 2145.

15 Id. at ___, 116 S. Ct. at 2148.

16 Id. at ___, 116 S. Ct. at 2148-49.

17 See Lozoya v. State, 932 P.2d 22, 27 (Okl.Cr.1996) (holding Oklahoma forfeiture statutes "are not punitive in nature, but rather are civil and remedial in nature" and do not implicate Fifth Amendment Double Jeopardy Clause).

18 915 P.2d 932 (Okl.Cr.1996).

19 Id. at 935 (citing New Mexico v. Kennedy, 120 N.M. 619, 904 P.2d 1044, 1051 (1995)).

20 Id. at 937 (citations omitted).

21 Id. Kane was handed down before the Supreme Court announced its decision in Ursery. However, both the Supreme Court and this Court stated in rem forfeiture proceedings are different from in personam proceedings at issue in Kane.

22 National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 192, 109 S. Ct. 454, 462, 102 L. Ed. 2d 469 (1988) ("A state university without question is a state actor").

23 North Carolina v. Davis, 485 S.E.2d 329, 332 (N.C. Ct. App.1997) (expelling high school student from school for selling marijuana on school grounds did not constitute punishment within meaning of Double Jeopardy Clause and did not bar state prosecution); Ohio v. Wood, 112 Ohio App.3d 621, 679 N.E.2d 735 (1996) (university proceeding in which school barred non-student alumnus from certain university facilities due to disruptive behavior did not bar subsequent state prosecution because state prosecution concerned separate offense); Ex rel. E.R.D., 551 N.W.2d 238, 242-43 (Minn.1996) (suspending student for carrying knife to school did not bar future prosecution for same conduct because suspension was remedial, related to safety and institutional order of others and was not punishment under Double Jeopardy Clause); Clark v. Georgia, 220 Ga. App. 251, 469 S.E.2d 250, 252-53 (1996) (suspending student who confessed to robbery did not bar state prosecution on robbery charge because suspension served remedial purpose of protecting safety and welfare of other students and was not punishment); In re Gila County Juvenile Delinquency Action, 169 Ariz. 53, 816 P.2d 950, 951 (Ariz. Ct. App.1991) (expelling minor from school did not constitute punishment because primary purpose of expulsion was remedial in that it was designed "to protect students and the faculty and to preserve the integrity and continuity of the school process"); see also Kister v. Ohio Bd. of Regents, 365 F. Supp. 27, 39 (S.D. Ohio) (state statutes authorizing dismissal or suspension of university faculty and students who had been convicted of certain crimes did not violate double jeopardy), aff'd by 414 U.S. 1117, 94 S. Ct. 855, 38 L. Ed. 2d 747 (1974); Paine v. Bd. of Regents of Univ. of Texas, 355 F. Supp. 199, 203 (W.D. Tex.1972) (no double jeopardy violation where university student is suspended from school and prosecuted criminally for drug offense); Center for Participant Educ. v. Marshall, 337 F. Supp. 126, 137 (N.D. Fla.1972) (finding university disciplinary proceeding was non-criminal, did not involve a loss of liberty and did not implicate double jeopardy protections); Clements v. Bd. of Trustees of Sheridan City, 585 P.2d 197, 199 (Wyo.1978) (suspension from school was not punishment for double jeopardy purposes).

24 685 A.2d 432 (Me. 1996).

25 Id. at 434.

26 259 Kan. 854, 915 P.2d 62 (1996).

27 Mar. 15, 1997 Tr. at 5.

28 The dissent characterizes community service in the university context as being "required servitude" and as "[r]equiring the student to perform labor." Actually, this characterization is incorrect. What it overlooks is the fact that university disciplinary proceedings, unlike court proceedings, are not and cannot be made obligatory. Rather, they are in a broad sense voluntary or quasi-contractual at most. Kauble had an option. He could refuse to perform the University ordered community service and not attend the University or perform the service and continue his education.

29 See e.g. Kurth Ranch, 511 U.S. at 777, 114 S. Ct. at 1945.

30 167 Wis.2d 461, 482 N.W.2d 142 (Wis. Ct. App. 1992).

31 Id. at 475, 482 N.W.2d at 148.

LANE, JUDGE: DISSENTS

¶1 I agree with the majority as to its conclusions of law. However, I disagree with the application of the law to the facts of this case. I find that the imposition of community service is for purely punitive purposes, and not remedial. To say that it is for the betterment and protection of the university community is a fiction that would classify any punishment rendered by the State of Oklahoma through a student disciplinary proceeding as remedial including assessing fines, loss of credits, and flogging.1

¶3 The majority cites a Wisconsin case as authority to find that community service is not punishment.

¶4 I dissent.

FOOTNOTES

1 The authority of the university to require community service as a sanction is not challenged in this appeal.

2 State v. Lawton, 167 Wis.2d 461, 482 N.W.2d 142 ( 1992).

3 Lawton, 482 N.W.2d at 146.