Shoul v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

[J-83-2016]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

LAWRENCE S. SHOUL, : No. 64 MAP 2015

:

Appellee : Appeal from the Order of the Adams

: County Court of Common Pleas, Civil

: Division, dated February 24, 2015,

v. : exited February 26, 2015, at No. 2014-

: S-721.

:

COMMONWEALTH OF PENNSYLVANIA, : ARGUED: December 6, 2016

DEPARTMENT OF TRANSPORTATION, :

BUREAU OF DRIVER LICENSING, :

:

Appellant :

Justice Todd delivers the Opinion of the Court, which Chief Justice Saylor

and Justice Donohue join in full. Justice Wecht joins Parts I, II(B), and III

of the opinion. Justices Baer and Dougherty join Parts I and II(B) of the

opinion. Justice Mundy joins Parts I and II(A) of the opinion.

OPINION

JUSTICE TODD DECIDED: November 22, 2017

In this appeal, we review the trial court’s determination that 75 Pa.C.S. § 1611(e),

providing that holders of commercial driver’s licenses who are convicted of certain drug

crimes while using motor vehicles are disqualified from holding such licenses for life,

violates Pennsylvania’s constitutional right to due process and the federal and

Pennsylvania constitutional prohibitions on cruel and unusual punishment. After careful

review, we reverse in part, vacate in part, and remand to the trial court for further

proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

By way of statutory background, 75 Pa.C.S. § 1611(e) derives from Title XII of

the Anti-Drug Abuse Act of 1986 – titled the Commercial Motor Vehicle Safety Act – as

later amended by the Motor Carrier Safety Improvement Act of 1999.1 These federal

enactments, inter alia, established a statutory disqualification scheme whereby holders

of commercial driver’s licenses (“CDLs”) who engaged in certain crimes while using

motor vehicles were disqualified from holding CDLs for specified periods of time, and

also required states to adopt many of its provisions to continue receiving federal

highway funding.2 In response, the General Assembly enacted the Uniform Commercial

Driver’s License Act,3 the purpose of which is “to implement the Commercial Motor

Vehicle Safety Act . . . and reduce or prevent commercial motor vehicle accidents,

fatalities and injuries by,” inter alia, “[d]isqualifying commercial drivers who have

committed certain serious traffic violations or other specified offenses.” 75 Pa.C.S. §

1602. In particular, the General Assembly adopted 75 Pa.C.S. § 1611, which requires

Appellee, the Pennsylvania Department of Transportation (“PennDOT”), to manage

Pennsylvania’s parallel disqualification scheme. Section 1611 provides as follows, in

pertinent part:

§ 1611. Disqualification

(a) First violation of certain offenses.—Upon receipt of a

report of conviction, [PennDOT] shall, in addition to any

other penalties imposed under this title, disqualify any

person from driving a commercial motor vehicle . . . for a

period of one year for the first violation of:

1

See Pub. L. No. 99-570, 100 Stat. 2307 (1986), as amended by Pub. L. No. 106-159,

113 Stat. 1748 (1999), codified at 49 U.S.C. §§ 31301 et seq.

2

See 49 U.S.C. §§ 31310(g), 3134; 49 C.F.R. §§ 383.51, 384.401.

3

Act of May 30, 1990, P.L. 173, No. 42, as amended by Act of 2005, P.L. 100, No. 37,

codified at 75 Pa.C.S. §§ 1601 et seq.

[J-83-2016] - 2

(1) [75 Pa.C.S. §] 3802 (relating to driving under

influence of alcohol or a controlled substance . . .

where the person was a commercial driver at the time

the violation occurred;

* * *

(7) any offense wherein the person caused the death

of a person as a result of a motor vehicle accident

through the negligent operation of a commercial

motor vehicle, including, but not limited to, a violation

of 18 Pa.C.S. § 2504 (relating to involuntary

manslaughter) or a violation of [75 Pa.C.S. §] 3732

(relating to homicide by vehicle).

* * *

(c) Two violations of certain offenses.— . . . [PennDOT]

shall disqualify for life any person convicted of two or more

violations of any of the offenses specified in subsection (a) . .

. arising from two or more separate and distinct incidents.

* * *

(d) Mitigation of disqualification for life.—[PennDOT] may

issue regulations establishing guidelines, including

conditions, under which a disqualification for life under

subsection (c) may be reduced to a period of not less than

ten years, if such reductions are permitted by Federal

regulations.

(e) Disqualification for controlled substance offenses.—

[PennDOT] shall disqualify any person from driving a

commercial motor vehicle for life who is convicted of using a

motor vehicle in the commission of any felony involving the

manufacture, distribution or dispensing of a controlled

substance or possession with intent to manufacture,

distribute or dispense a controlled substance where either:

(1) the person was a [CDL] holder at the time of the

commission of the felony; or

(2) the motor vehicle used in the commission of the

felony was a commercial motor vehicle.

There shall be no exceptions or reductions to this

disqualification for life.

* * *

[J-83-2016] - 3

(g) Disqualification for serious traffic offenses.—

[PennDOT] shall disqualify any person from driving a

commercial motor vehicle for a period of 60 days if convicted

of two serious traffic violations . . . arising from separate and

distinct incidents occurring within a three-year period. A

violation will only be considered a serious traffic violation for

purposes of this subsection where:

(1) the person was a [CDL] holder at the time of the

violation, and conviction of the violation results in a

revocation, cancellation or suspension of the person’s

operating privileges for non[-]commercial motor

vehicles; or

(2) the person was operating a commercial motor

vehicle at the time of the violation.

Id. § 1611. It is the lifetime disqualification under subsection (e) that is the focus of this

case.

Against this statutory backdrop, the factual and procedural history of this matter

is relatively straightforward. In 2013, a Pennsylvania State Police informant asked

Appellee Lawrence S. Shoul, who held a CDL, to retrieve marijuana from one of

Appellee’s co-workers and deliver it to the informant. Appellee obliged, using a motor

vehicle to do so, whereupon he was arrested and charged with two counts of felony

manufacture, delivery, or possession with intent to deliver a controlled substance, 35

P.S. § 780-113(a)(30), and ultimately convicted of the same.4 Thereafter, PennDOT

notified Appellee that, pursuant to Section 1611(e), he was disqualified from holding a

CDL for life. Appellee appealed his disqualification to the trial court, asserting, as

pertinent herein, that Section 1611(e): (1) violated his federal and Pennsylvania

4

The record before us does not indicate the amount of marijuana, whether Appellee

delivered the marijuana using a personal or commercial motor vehicle, or Appellee’s

sentence.

[J-83-2016] - 4

constitutional rights to substantive due process because it was not rationally related to

promoting highway safety; and (2) violated the federal and Pennsylvania constitutional

prohibitions on cruel and unusual punishment because, although it was formally a civil

sanction, it was functionally a criminal punishment and was so irrational and

disproportionate to his conduct as to be cruel and unusual. In response, PennDOT

argued that Section 1611(e) was rationally related to promoting highway safety, as well

as deterring drug trafficking and complying with certain federal highway funding

requirements; and that it is both formally and functionally a civil sanction.

The trial court found that Section 1611(e) violated Pennsylvania’s constitutional

right to substantive due process and the federal and Pennsylvania constitutional

prohibitions on cruel and unusual punishment. Specifically, concerning Appellee’s claim

that Section 1611(e) violated his right to substantive due process, the court did not

address the federal constitutional issue, but agreed with Appellee that, as a

Pennsylvania constitutional matter, statutes affecting one’s right to hold a CDL must

bear a rational relationship to a legitimate governmental objective, and that Section

1611(e) is not rationally related to promoting highway safety, reasoning that Appellee’s

conduct posed no danger thereto:

[T]here is no suggestion that during the underlying incident

[Appellee] was . . . under the influence of . . . marijuana or

that he posed any safety hazard at all. No rational argument

can be made that a CDL holder unlawfully delivering a

controlled substance is likely to create a commercial vehicle

highway safety hazard. It is more likely that a CDL holder

unlawfully delivering marijuana will drive safely so as not to

call law enforcement attention to himself.

Trial Ct. Op., 2/24/15, at 10-11 (footnote omitted). The court also opined that Section

1611(e) was not rationally related to highway safety because it was uniquely harsh

[J-83-2016] - 5

when compared to some of Section 1611’s other disqualification provisions involving

conduct it viewed as more dangerous to highway safety:

[A] CDL holder who is operating a commercial vehicle while

under the influence of marijuana is only subject to a one year

disqualification. Similarly, a CDL holder who causes the

death of another as a result of criminally negligent operation

of a motor vehicle is likewise disqualified for one year. Only

where a CDL holder has two or more of these convictions is

he subject to a lifetime disqualification, and then he may

seek reduction of that sanction to 10 years. Furthermore, a

CDL holder convicted of two serious traffic violations only

receives a 60-day disqualification. What appears clear is

that the lifetime disqualification at issue is only tangentially

related to highway safety if other factors are present, which

do not appear in this case.

Id. at 11 (quotation marks and citations omitted). Finally, relying on then-Justice, later-

Chief Justice Castille’s rationale in his concurring opinion in Nixon v. Commonwealth,

839 A.2d 277 (Pa. 2003),5 the court opined that Section 1611(e) was not rationally

related to the promotion of highway safety because it failed to account for offenders’

potential for rehabilitation:

To paraphrase Justice Castille in Nixon, there may be

offenses which are so severe that any reasonable person

would agree that a lifetime ban from having a CDL is rational

5

In Nixon, this court addressed a statute precluding certain former offenders, including

those convicted of, inter alia, theft, from working in elder care facilities, but excepting

offenders who had already been working on those facilities for at least one year at the

time of the statute’s enactment. Nixon, 839 A.2d at 289-90. Although this Court

invalidated the statute on a different basis, Justice Castille authored a Concurring

Opinion wherein he indicated his view that a statute precluding offenders convicted of

certain, relatively minor, offenses from working in such facilities was not rationally

related to protecting clients because it failed to account for their potential for

rehabilitation. See id. at 291-92 (Castille, J., concurring) (“[I]t is difficult to discern a

rational basis for automatically deeming an ancient conviction for theft . . . or for simple

possession of a controlled substance . . . as eternally and retroactively prohibiting

otherwise qualified care workers from continued employment in these facilities.”).

[J-83-2016] - 6

and required. But it is difficult to find a rational basis for

automatically concluding that unlawfully delivering marijuana

creates such a safety issue that an individual, otherwise

qualified to safely operate a commercial vehicle, should

forever be denied employment in this field.

Trial Ct. Op., 2/24/15, at 11 (citations and footnotes omitted).

Turning to Appellee’s claim that Section 1611(e) violated the federal and

Pennsylvania constitutional prohibition on cruel and unusual punishment, the trial court

noted that formally civil sanctions may nevertheless be functional criminal punishments

according to the framework set forth in the United States Supreme Court’s decision in

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Applying that framework, the trial

court found that Section 1611(e) was, in fact, functionally a criminal punishment and

constituted cruel and unusual punishment.

PennDOT appealed directly to this Court,6 raising three issues for our review:

I. Did the trial court fail to properly recognize legitimate

legislative interests underlying the lifetime

disqualification of [Appellee’s CDL] for use of a motor

vehicle in a felony violation of the Drug Act other than

the reduction and prevention of commercial motor

vehicle accidents?

II. Is the lifetime disqualification of a [CDL] under Section

1611(e) for conviction of a major Drug Act violation

rationally related to highway safety, drug trafficking

deterrence, and the continued receipt of federal

highway funding?

III. Is the lifetime disqualification imposed under Section

1611(e) a civil collateral consequence of conviction

6

See 42 Pa.C.S. § 722(a) (providing exclusive jurisdiction to this Court in “appeals from

final orders of the courts of common pleas” in “[m]atters where the court of common

pleas has held invalid as repugnant to the Constitution . . . of the United States, or to the

Constitution of this Commonwealth . . . any statute of . . . this Commonwealth”).

[J-83-2016] - 7

for a major drug trafficking violation rather than a

criminal penalty?

PennDOT’s Brief at 3.

II. ANALYSIS7

A. Substantive Due Process

In PennDOT’s first two issues, it challenges the trial court’s determination that

Section 1611(e) violates Appellee’s right to substantive due process under the

Pennsylvania Constitution. Before addressing the arguments of the parties, we begin

with a discussion of due process principles. While the claim before us is grounded in

the state constitution, because our cases have found guidance from the similar federal

right, we offer a brief explication of that right. The Fourteenth Amendment to the United

States Constitution provides that no state may “deprive any person of life, liberty, or

property, without due process of law.” U.S. Const., amend. XIV. The United States

Supreme Court has held that this prohibition contains not only a procedural component

protecting persons against arbitrary and unjust proceedings, see, e.g., Mullane v.

Central Hanover Bank and Trust Co., 339 U.S. 306 (1950) (noting that the fundamental

requirement of procedural due process is notice and an opportunity to be heard), but

also a substantive component protecting persons against arbitrary and unjustified laws,

see, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (holding that substantive due process

protected ethnically diverse spouses from statute forbidding ethnically diverse

marriages); Williamson v. Lee Optical Co., 348 U.S. 483 (1955) (holding that

substantive due process did not protect unlicensed eye care professionals against

statute requiring licensure for preparation and sale of eyeglasses). The state

7

Because each of PennDOT’s issues implicates Section 1611(e)’s constitutionality, a

pure question of law, our standard of review is de novo and our scope of review is

plenary. Robinson Twp., Washington Cnty. v. Commonwealth, 83 A.3d 901, 943 (Pa.

2013).

[J-83-2016] - 8

counterpart is Article I, Section 1 of the Pennsylvania Constitution, which provides that

“[a]ll men are born equally free and independent, and have certain inherent and

indefeasible rights, among which are those of enjoying and defending life and liberty, of

acquiring, possessing and protecting property and reputation, and of pursuing their own

happiness.” Pa. Const., art. I, § 1. This Court has held that this guarantee likewise

protects persons against arbitrary and unjust laws. Claims that a statute violates either

the federal or state right to substantive due process are subject to the following “means-

end review”:

[C]ourts must weigh the rights infringed upon by the law

against the interest sought to be achieved by it, and also

scrutinize the relationship between the law (the means) and

that interest (the end). Where laws infringe upon certain

rights considered fundamental, such as the right to privacy,

the right to marry, and the right to procreate, courts apply a

strict scrutiny test. Under that test, a law may only be

deemed constitutional if it is narrowly tailored to a compelling

state interest.

Alternatively, where laws restrict . . . other rights . . . which

are undeniably important, but not fundamental, . . . courts

apply a rational basis test.

Nixon, 839 A.2d at 286-87 & n.15 (collecting federal and state cases).

Thus, while statutes abridging fundamental rights are subject to strict scrutiny

and are constitutional only where they are narrowly tailored to a compelling

governmental interest, statutes limiting other rights are subject to a rational basis test.

Notably, the federal rational basis test differs significantly from our own in terms of the

degree of deference it affords to legislative judgment. The high Court has described its

rational basis test, albeit in the context of a claim that a statute violated the Fourteenth

Amendment’s Equal Protection Clause, as broadly deferential:

[J-83-2016] - 9

We many times have said . . . that rational-basis review in

equal protection analysis is not a license for courts to judge

the wisdom, fairness, or logic of legislative choices. . . . [A]

classification neither involving fundamental rights nor

proceeding along suspect lines is accorded a strong

presumption of validity. Such a classification cannot run

afoul of the Equal Protection Clause if there is a rational

relationship between the disparity of treatment and some

legitimate governmental purpose. Further, a legislature that

creates these categories need not actually articulate at any

time the purpose or rationale supporting its classification.

Instead, a classification must be upheld against equal

protection challenge if there is any reasonably conceivable

state of facts that could provide a rational basis for the

classification. A State, moreover, has no obligation to

produce evidence to sustain the rationality of a statutory

classification. A legislative choice is not subject to courtroom

factfinding and may be based on rational speculation

unsupported by evidence or empirical data. A statute is

presumed constitutional, and the burden is on the one

attacking the legislative arrangement to negative every

conceivable basis which might support it, whether or not the

basis has a foundation in the record. Finally, courts are

compelled under rational-basis review to accept a

legislature's generalizations even when there is an imperfect

fit between means and ends. A classification does not fail

rational-basis review because it is not made with

mathematical nicety or because in practice it results in some

inequality. The problems of government are practical ones

and may justify, if they do not require, rough

accommodations—illogical, it may be, and unscientific.

Heller v. Doe, 509 U.S. 312, 319–21 (1993) (citations, brackets, and quotation marks

omitted).

This Court, by contrast, applies what we have deemed a “more restrictive” test.

Nixon, 839 A.2d at 287 n.15. Specifically,

a law which purports to be an exercise of the police power

must not be unreasonable, unduly oppressive or patently

beyond the necessities of the case, and the means which it

employs must have a real and substantial relation to the

[J-83-2016] - 10

objects sought to be attained. Under the guise of protecting

the public interests the legislature may not arbitrarily

interfere with private business or impose unusual and

unnecessary restrictions upon lawful occupations. The

question whether any particular statutory provision is so

related to the public good and so reasonable in the means it

prescribes as to justify the exercise of the police power, is

one for the judgment, in the first instance, of the law-making

branch of the government, but its final determination is for

the courts.

Gambone v. Commonwealth, 101 A.2d 634, 636-37 (Pa. 1954) (citation and footnotes

omitted); see also Nixon, 839 A.2d at 287-88 & n.15 (distinguishing the federal test from

the state test). Thus, under our state charter, we must assess whether the challenged

law has “a real and substantial relation” to the public interests it seeks to advance, and

is neither patently oppressive nor unnecessary to these ends. Nevertheless, we bear in

mind that, although whether a law is rationally related to a legitimate public policy is a

question for the courts, the wisdom of a public policy is one for the legislature, and the

General Assembly’s enactments are entitled to a strong presumption of constitutionality

rebuttable only by a demonstration that they clearly, plainly, and palpably violate

constitutional requirements. Id. at 285-86.8

Herein, PennDOT argues that the trial court erred in determining that Section

1611(e) was not rationally related to promoting highway safety and, in any event, in

failing to recognize that it is rationally related to legitimate governmental objectives:

deterring drug crime and complying with federal highway funding requirements.

8

The concurrence views Gambone’s formulation of the rational basis test as a remnant

of the oft-derided “Lochner era” of federal substantive due process jurisprudence and

inconsistent with modern jurisprudential understanding of legislative capacity and

authority. Critically, however, the parties do not dispute the applicability of the

Gambone test to Appellee’s challenge to Section 1611(e). Accordingly, in our view, any

reconsideration of Gambone, and, more recently, Nixon, must await a future case, with

developed advocacy.

[J-83-2016] - 11

Specifically, PennDOT posits that Section 1611(e) is rationally related to promoting

highway safety because it protects motorists from “operators of large [commercial motor

vehicles who] exercise poor judgment and risky behavior by committing major drug

offenses using motor vehicles.” PennDOT’s Brief at 16. PennDOT rejects the trial

court’s determination that a driver delivering marijuana is likely to drive cautiously as

“strain[ing] credulity and miss[ing] the point”: that “[t]he lifetime ban is imposed because

the drug trafficking . . . while using a vehicle reflects extreme bad judgment and risky

behavior and the possibility of further bad [judgment] and risky behavior when behind

the wheel of a forty-ton, 100 foot long truck.” Id. at 19. PennDOT further assails the

trial court’s reliance on the reasoning underlying Chief Justice Castille’s concurrence in

Nixon, asserting that whether dangerous conduct is predictive of future dangerous

conduct is a question for the legislature, and further suggesting that Nixon is inapposite

because Section 1611(e) is not retroactive and involves the privilege of a CDL.

PennDOT also rejects the trial court’s view of Section 1611(e)’s severity as undermining

its rational connection to highway safety, arguing that variations among Section 1611’s

disqualification provisions “only show that the program was well thought through . . .

with varying sanctions based on the offense,” and that the proper severity of any

particular sanction is a legislative question. Id. at 20.

In the alternative, PennDOT offers that Section 1611(e) is rationally related to

protecting against drug trafficking and drug use by deterring the same. To that end,

PennDOT relies heavily on this Court’s decision in Plowman v. Dept. of Trans., Bureau

of Driver Licensing, 635 A.2d 124 (Pa. 1993) (upholding statute imposing 90-day to 2-

year driver’s license suspension for possession of a controlled substance as protecting

against the proliferation of drug use by deterring the same).

[J-83-2016] - 12

Finally, PennDOT submits that Section 1611(e) is rationally related to the

legitimate government objective of continuing to obtain full federal highway funding,

estimating that, absent its enactment, the state would lose approximately $56.7 million

in such funding in the first year and $113.4 million in subsequent years, and noting that

those funds empower PennDOT to carry out its governmental duties. See PennDOT’s

Brief at 18.

Appellee, by contrast, argues that the trial court correctly found that Section

1611(e) was not rationally related to any legitimate governmental objective. Regarding

the promotion of highway safety, Appellee, largely tracking the trial court’s analysis,

posits that it is “undeniable that the commission of a single drug act violation does not

directly implicate highway safety” and contends that, because Section 1611(e)

sanctions other, more dangerous behavior less severely, it is unreasonable, unduly

oppressive, and patently beyond the necessities of promoting highway safety.

Appellee’s Brief at 6. Regarding the deterrence of drug trafficking and drug use,

Appellee claims that Section 1611(e)’s failure to provide a graduated system of

sanctions, or method for reinstatement after disqualifications, based on drug crime

makes it more likely to promote such crime than to deter it:

From a purely logical perspective . . . the lack of a graduated

punishment scheme violates the baseline principle of

proportionality. A CDL holder who is predisposed to traffic in

drugs, realizing that . . . he faces the same consequences

whether he moves a full trunk or a full trailer may, in fact, be

incentivized to opt for the more lucrative option of using his

commercial motor vehicle to transport the drugs.

Alternatively, a commercial driver whose CDL has been

disqualified for life may decide that he should apply his

training as a truck driver to further drug trafficking; [Section]

1611(e) no longer has any teeth with regard to such an

individual.

Id. at 8 (footnote omitted).

[J-83-2016] - 13

Finally, Appellee concedes that Section 1611(e) is related to, and indeed

necessary to, continuing to receive federal highway funding, but asserts that sanctioning

such an objective as satisfying the requirements of substantive due process undermines

state constitutional guarantees:

This argument, were it valid and taken to its logical

conclusion, would permit the General Assembly to disregard

the Pennsylvania Constitution in any situation, to pass any

law the federal government demanded, so long as it would

lead to the Commonwealth’s receipt of federal funding. This

cannot be the law. The Commonwealth of Pennsylvania

must be and is limited in its actions by the Pennsylvania

Constitution. An interest in the receipt of federal funding

cannot, by itself, save a law that is otherwise repugnant to

the Pennsylvania Constitution.

Id. at 9.

As detailed above, the question of whether Section 1611(e) violates the right to

substantive due process under the Pennsylvania Constitution implicates an evaluation

of the law’s means – i.e., its disqualification of Appellee’s holding a CDL for life –

against its ends – i.e., its policy goals of protecting highway safety, deterring drug crime,

and complying with federal highway funding requirements. Where, as here, there is no

claim that the law impacts a fundamental right, we need not consider whether Section

1611(e) is narrowly tailored to meet a compelling governmental interest; rather, we need

only determine whether it is rationally related to its interest – that is, whether it has a

real and substantial relation to the public interests it seeks to advance, and is neither

patently oppressive nor unnecessary to these ends. Gambone, 101 A.2d at 636-37.

Preliminarily, we agree with the trial court that Section 1611(e) is not rationally

related, at least as a matter of Pennsylvania constitutional jurisprudence, to the

protection of highway safety. As the trial court reasoned, the mere delivery of a

controlled substance does not, by itself, pose a direct or substantial risk to highway

[J-83-2016] - 14

safety. Moreover, although PennDOT’s creative argument that persons who deliver

controlled substances are predisposed to poor judgment and risky behavior, which

inferentially includes poor judgment and risky behavior that does pose a risk to highway

safety, might be sufficient to satisfy the federal constitution’s requirements, it is too

abstract and attenuated to satisfy Pennsylvania’s constitutional requirements that a law

bear a “real and substantial relation to the objects sought to be attained.” Id. at 637.

Indeed, PennDOT’s argument in this regard ultimately rests on the proposition that

persons who engage in any poor judgment or risky behavior are of such risk to highway

safety as they might reasonably be barred from driving, a proposition we do not accept.

Furthermore, we find merit in the trial court’s view that Section 1611(e)’s severity,

relative to Section 1611’s other sanctions for conduct plainly more dangerous to

highway safety, undermines the notion that it is rationally related to that purpose:

simply stated, a law which plainly goes too far allegedly in pursuit of some legitimate

purpose may reflect arbitrariness or may betray other, unspoken purposes, a principle

plainly contemplated by the Gambone test. See id. (“[A] law which purports to be an

exercise of the police power must not be unreasonable, unduly oppressive or patently

beyond the necessities of the case. . . . Under the guise of protecting the public

interests the legislature may not arbitrarily interfere with private business or impose

unusual or unnecessary restrictions upon lawful occupations.”). As the trial court

reasoned, Section 1611(e) stands out as the sole provision imposing a lifetime

disqualification from holding a CDL that may never be lifted, while holders of CDLs who

commit traffic violations, drive under the influence of alcohol and/or drugs, or even

cause negligent homicides – all plainly more dangerous, injurious, or fatal to motorists –

are subject to significantly shorter-term disqualifications; even repeat offenders subject

to lifetime disqualification may seek exceptions and reductions in the length of their

[J-83-2016] - 15

disqualifications. Thus, as the trial court opined, Section 1611 quizzically sanctions

perhaps the least risky conduct (relative to highway safety) it regulates with the greatest

severity, suggesting it is either harsh for no reason, or for some ulterior reason.

We reject PennDOT’s arguments to the contrary. First, although variation in a

statute’s sanctions relative to particular conduct might reasonably demonstrate thorough

consideration, it is not Section 1611’s variation which calls its relationship to highway

safety into question; rather, it is the apparent disjunct between Section 1611’s lifetime

disqualification for conduct which is not, in and of itself, dangerous to highway safety

and Section 1611’s less onerous sanctions for conduct that poses greater risks and, in

some circumstances, actually injures (or even kills) motorists. Moreover, although

PennDOT is correct that, whether a particular sanction is justified for particular conduct

is a legislative question in the first instance, it is beyond peradventure that the

legislature’s determination is subject to judicial review for compliance with constitutional

requirements, including the Gambone test. Id. (“The question [of] whether any

particular statutory provision is so related to the public good and so reasonable in the

means it prescribes as to justify the exercise of the police power, is one for the

judgment, in the first instance, of the law-making branch of the government, but its final

determination is for the courts.”).

Furthermore, we likewise agree with the trial court that Section 1611(e)’s

imposition of a lifetime disqualification undermines its rational relationship to promoting

highway safety: as Chief Justice Castille explained in Nixon, a law which fails to

account for persons’ inherent potential for rehabilitation may well be “unreasonable,”

“unduly oppressive,” or “patently beyond the necessities of” its regulatory aims. Id.

Presently, Section 1611(e) operates on the principle that one’s use of a motor vehicle to

deliver a controlled substance not only poses such a risk to highway safety as to justify

[J-83-2016] - 16

the disqualification of his right to hold a CDL, but also an irrefutable legislative

determination that he will always pose such a risk to highway safety as to justify the

same. We agree with the trial court and Appellee that this is an unreasonable

conclusion.

However, we ultimately must agree with PennDOT that the trial court overlooked

the fact that Section 1611(e) serves the legitimate governmental purpose of deterring

drug activity. As PennDOT argues, this Court’s decision in Plowman stands for the

proposition that the suspension of a driver’s license is rationally related, at least as a

matter of federal constitutional jurisprudence,9 to protecting against the conduct giving

rise to the suspension – therein, possession of a controlled substance – by deterring it.

See Plowman, 635 A.2d at 127 (“[T]he prospect of losing one’s driver’s license may

deter a potential drug user from committing [a] drug offense. At least, that potential user

may consider the loss of his/her license and its effect on employment and transportation

prior to committing a drug offense.”). We find this rationale persuasive as a matter of

Pennsylvania constitutional jurisprudence as well. Plainly, just as the suspension of a

driver’s license for possession of a controlled substance might influence a would-be

possessor of drugs not to possess them, Section 1611(e)’s lifetime disqualification from

holding a CDL for delivery of a controlled substance while using a motor vehicle might

influence a would-be drug trafficker not to traffic drugs or, at minimum, to do so without

a vehicle. Appellee’s argument to the contrary – that Section 1611(e)’s lack of a

graduated system of sanctions actually incentivizes would-be drug traffickers to traffic

larger quantities of drugs at a single time – is too clever by half: the question is not

9

In Plowman, the parties agreed that the federal and Pennsylvania constitutional

guarantees of substantive due process were coterminous. Notably, Plowman was

decided before Nixon, which dispelled that notion. See Nixon, 839 A.2d at 287 n.15.

[J-83-2016] - 17

whether the statute bears a real and substantial relationship to persuading drug

traffickers to minimize the amount of contraband they are carrying, but, rather, to

persuading holders of CDLs to avoid drug trafficking altogether.10 We find that the

legislature was free to conclude that it might.11

Accordingly, we hold that Section 1611(e) does not violate Appellee’s

Pennsylvania constitutional right to substantive due process.

B. Cruel and Unusual Punishments

In PennDOT’s final issue, it challenges the trial court’s determination that Section

1611(e) violates the federal and Pennsylvania constitutional prohibitions on cruel and

unusual punishments. The Eighth Amendment to the United States Constitution

provides that “Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.” U.S. Const., amend. VIII.12 13 Although the

10

Moreover, taking Appellee’s argument to its natural end, a statute’s failure to provide

gradations (or gradations within those gradations) in its sanctions would similarly render

it an irrational deterrent, essentially requiring that the legislature invent a vast spectrum

of sanctions for an equally vast panoply of circumstances attendant prohibited conduct.

We do not view the due process clause as imposing such a requirement.

11

Because we find that Section 1611(e) is rationally related to the legitimate

governmental interest of deterring drug trafficking, we need not consider whether its

relationship to federal highway funding requirements is sufficient to satisfy the

requirements of Pennsylvania’s substantive due process doctrine.

12

This prohibition applies to both the federal government and, via the Fourteenth

Amendment’s guarantee of due process, to state governments. See Jurek v. Texas,

428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Gregg v.

Georgia, 428 U.S. 153 (1976).

13

Similarly, Article I, Section 13 of the Pennsylvania Constitution provides that

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel

punishments inflicted.” Pa. Const., art. I, § 13. Because the parties proceed from the

view that the Eighth Amendment and Article I, Section 13 are coextensive and present

arguments predicated only on Eighth Amendment jurisprudence, we consider only the

Eighth Amendment’s prohibition on cruel and unusual punishments herein. But see

Commonwealth v. Baker, 78 A.3d 1044, 1056 (Pa. 2013) (Castille, C.J., concurring)

(continued…)

[J-83-2016] - 18

latter clause is limited, by its terms, to “punishments,” the trial court and the parties differ

as to that term’s scope. Below, the trial court analyzed Appellee’s claim under the

Mendoza-Martinez factors, concluding that Section 1611(e) constitutes punishment,

and, before us, PennDOT advocates the same approach. Appellee, by contrast, argues

that the trial court’s application of the factors was flawed, and, in the alternative,

contends that Section 1611(e) is punishment pursuant to the high Court’s decision in

Austin v. United States, 509 U.S. 602 (1993), which held that the term extends to any

sanction intended, at least in part, to punish or deter criminal conduct.

After careful review, we agree with Appellee that Austin provides the appropriate

framework and that Section 1611(e) constitutes punishment because it, at least in part,

exacts retribution or deters crime. Admittedly, the high Court has long employed the

Mendoza-Martinez framework in myriad areas of federal constitutional jurisprudence,

arguably including Eighth Amendment jurisprudence, to determine whether a formally

civil sanction is functionally punitive in nature. See, e.g., Trop v. Dulles, 356 U.S. 86

(1958) (plurality) (considering claim that punishing military deserters with expatriation

violated the Eighth Amendment’s prohibition on cruel and unusual punishments and

applying a purpose-based standard presaging the Mendoza-Martinez framework);

United States v. Ward, 448 U.S. 242 (1980) (considering claim that formally civil

penalties imposed for spilling oil into navigable waters were functional criminal

punishments, implicating the Fifth Amendment’s privilege against self-incrimination and

applying the Mendoza-Martinez framework); Smith v. Doe, 538 U.S. 84 (2003)

(considering claim that sexual offender registration requirements were functional

(…continued)

(offering distinctions between the Eighth Amendment and Article I, Section 13);

Commonwealth v. Eisenberg, 98 A.3d 1268, 1282-83 (Pa. 2014) (same).

[J-83-2016] - 19

criminal punishments implicating the federal constitutional Ex Post Facto Clause and

applying the Mendoza-Martinez framework).

However, it is apparent that Austin retreated from that practice in the context of

Eighth Amendment challenges. In Austin, the court considered a claim that a state civil

forfeiture law violated the Eighth Amendment’s prohibition on excessive fines, and the

government argued that the statute’s civil sanctions were not “punishment” according to

the Mendoza-Martinez factors, and, thus, were outside the Eighth Amendment’s scope.

Austin, 509 U.S. at 604-607. The high Court first rejected the government’s premise

that Mendoza-Martinez defined that scope as inconsistent with the fact that the text and

history of the Eighth Amendment, unlike that of other constitutional prohibitions, drew no

distinction between civil and criminal “punishment”:

Some provisions of the Bill of Rights are expressly limited to

criminal cases. The Fifth Amendment’s Self-Incrimination

Clause, for example, provides: “No person . . . shall be

compelled in any criminal case to be a witness against

himself.” The protections provided by the Sixth Amendment

are explicitly confined to “criminal prosecutions.” The text of

the Eighth Amendment includes no similar limitation.

Nor does the history of the Eighth Amendment require such

a limitation. Justice [O’Connor] noted in [Browning Ferris

Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S.

257 (1989)]: “Consideration of the Eighth Amendment

immediately followed consideration of the Fifth Amendment.

After deciding to confine the benefits of the Self-Incrimination

Clause of the Fifth Amendment to criminal proceedings, the

Framers turned their attention to the Eighth Amendment.

There were no proposals to limit that Amendment to criminal

proceedings.” [The Eighth Amendment’s predecessor,]

Section 10 of the English Bill of Rights of 1689 is not

expressly limited to criminal cases either. The original draft

of § 10 as introduced in the House of Commons did contain

such a restriction, but only with respect to the bail clause:

“The requiring excessive Bail of Persons committed in

[J-83-2016] - 20

criminal Cases, and imposing excessive Fines, and illegal

Punishments, to be prevented.” The absence of any similar

restriction in the other two clauses suggests that they were

not limited to criminal cases. In the final version, even the

reference to criminal cases in the bail clause was omitted.

Id. at 607-609 (citations and quotation marks omitted). Moreover, the court intimated

that such a distinction was inconsistent with the Eighth Amendment’s purpose of

“limit[ing] the government’s power to punish”:

The notion of punishment, as we commonly understand it,

cuts across the division between the civil and the criminal

law. It is commonly understood that civil proceedings may

advance punitive as well as remedial goals, and, conversely,

that both punitive and remedial goals may be served by

criminal penalties. Thus, the question is not . . . whether

forfeiture . . . is civil or criminal, but rather whether it is

punishment.

Id. at 609-10 (citations and quotation marks omitted). In a footnote, the court sharpened

the point, observing that the government’s reliance on Mendoza-Martinez (and Ward)

was “misplaced”:

The question in those cases was whether a nominally civil

penalty should be reclassified as criminal and the

safeguards that attend a criminal prosecution should be

required. . . . In addressing the separate question whether

punishment is being imposed, the Court has not employed

the tests articulated in Mendoza-Martinez and Ward. Since

in this case we deal only with the question whether the

Eighth Amendment’s Excessive Fines Clause applies, we

need not address the application of those tests.

Id. at 610 n.6 (some citations and quotation marks omitted). Finally, the Court

explained the proper scope of Eighth Amendment “punishment” as including sanctions

intended in any respect to exact retribution for, or to deter, conduct:

We need not exclude the possibility that a forfeiture serves

remedial purposes to conclude that it is subject to the

limitations of the Excessive Fines Clause. We, however,

[J-83-2016] - 21

must determine that it can only be explained as serving in

part to punish. . . . [A] civil sanction that cannot fairly be said

solely to serve a remedial purpose, but rather can only be

explained as also serving either retributive or deterrent

purposes, is punishment, as we have come to understand

the term.

Id. at 610.

Thus, following Austin, although Mendoza-Martinez remains salient for

determining whether a formally civil sanction is functionally a criminal punishment,

implicating constitutional rights attendant criminal proceedings, it is inapplicable in

determining whether a sanction is, for purposes of the Eighth Amendment,

“punishment,” which includes all civil or criminal sanctions that serve retributive or

deterrent purposes to any degree.14

14

In her Concurring and Dissenting Opinion, Justice Mundy notes that this formulation

of the Eighth Amendment’s scope in Austin derives from Halper, and that the Court in

Halper adopted two contrary tests for determining if a civil sanction is punishment within

the meaning of the federal constitutional prohibition on double jeopardy: (1) that only

solely remedial sanctions are not punishment; and (2) that only solely deterrent

sanctions are punishment. See Concurring and Dissenting Opinion (Mundy, J.), at 2-4.

Justice Mundy contends that the high Court in Hudson v. United States, 522 U.S. 93

(1997) – a double jeopardy case – retreated from the former test in favor of the latter, on

the ground that the former test would designate virtually all civil sanctions as

punishment. See Concurring and Dissenting Opinion (Mundy, J.), at 4-5. Justice

Mundy urges that this Court should similarly retreat from the former test for purposes of

determining whether a civil sanction is punishment within the meaning of the

constitutional prohibition on cruel and unusual punishments, reiterating that a contrary

holding would designate virtually all civil sanctions as punishment within the meaning of

that constitutional prohibition. Id. at 5.

Respectfully, we view Austin’s pronouncement that civil sanctions intended at

least in part to occasion deterrence or retribution are punishment for Eighth Amendment

purposes as authoritative notwithstanding Hudson, and appropriately situated to that

context in light of the differences, detailed in Austin, between double jeopardy and cruel

and unusual punishment doctrine. See Austin, 509 U.S. at 607-10. Preliminarily,

Hudson was a double jeopardy case, not an Eighth Amendment case, and thus,

unsurprisingly, Austin’s pronouncement was not overruled in Hudson. Moreover, as the

court explained in Austin, while the constitutional restrictions on double jeopardy apply

only to “criminal” punishments – rendering Hudson’s focus on solely deterrent civil

sanctions an arguably appropriate benchmark – the constitutional prohibition on cruel

(continued…)

[J-83-2016] - 22

Applying Austin, it is clear that Section 1611(e) is punishment. Even assuming

arguendo that Section 1611(e) is not intended to exact retribution against felony drug

offenders, it is unquestionably meant to deter drug crime. Indeed, as noted supra,

Section 1611(e) derives from the Commercial Motor Vehicle Safety Act of 1986, which

was itself a constituent part of the Anti-Drug Abuse Act of 1986, P.L. No. 99-570, 100

Stat. 3207, legislation directed at curtailing drug cultivation, trafficking, and abuse,

among other purposes. See id. Plainly, Section 1611(e) deters drug crime not only by

preventing persons previously convicted of drug offenses (who are presumed to be

(…continued)

and unusual punishments applies to all punishments, justifying a focus on sanctions

with any deterrent effect. Indeed, in Hudson and subsequent cases, the high Court has

highlighted the distinction and contemplated that the scope of the civil sanctions

implicating the prohibition on double jeopardy was narrower than that for the Eighth

Amendment prohibition on cruel and unusual punishments. See Hudson, 522 U.S. at

495 (opining that double jeopardy doctrine need not be so broad in light of the more

expansive scope of other provisions, including the Eighth Amendment, citing Austin);

United States v. Usery, 518 U.S. 267, 286 (1998) (noting that Austin did not involve

double jeopardy and that the court has never understood the scope of the Eighth

Amendment as “parallel to, or even related to” the constitutional prohibition on double

jeopardy); United States v. Bajakajian, 524 U.S. 321, 329 & n.4 (rejecting the

government’s argument that an in personam forfeiture of cash was not a punishment

because forfeiture also served remedial purposes, opining that, even if it did serve

remedial purposes, “the forfeiture would still be punitive in part”).

In addition, we note that Austin does not sweep all civil sanctions within its ambit,

but, rather, only those intended, at least in part, to incentivize primary conduct. For

example, although a driver’s license suspension predicated on a motorist’s driving

under the influence of alcohol is plainly intended both to protect the community from a

potentially inebriated motorist and to incentivize the motorist not to drive under the

influence in the future, a driver’s license suspension predicated on a motorist’s inability

to pass a vision exam is intended only to protect the community, not to incentivize the

driver to have better vision. Compare 75 Pa.C.S. §§ 3801–3804 with 67 Pa. Code §

83.3. Contrariwise, we note that virtually all sanctions, including imprisonment, which

are unquestionably punishment, have a remedial component in that they are ultimately

intended to remove dangerous individuals from, or ameliorate the risk of danger to,

society and to provide for the rehabilitation of offenders. The high Court has not

embraced an interpretation of the Eighth Amendment that would permit punishments to

be inflicted in a manner grossly disproportionate to the underlying offenses simply

because they are also meant to achieve non-punitive, non-deterrent ends.

[J-83-2016] - 23

likely to commit the same offenses again) from using commercial motor vehicles to

engage in drug trafficking, but also, as detailed above, by attempting to influence

holders of CDLs not to engage in drug crime in the first instance – i.e., deterring them. 15

15

In her Concurring and Dissenting Opinion, Justice Mundy notes that, in Plowman,

supra, this Court previously determined that a driver’s license suspension predicated on

a drug offense is not a punishment for Eighth Amendment purposes. Concurring and

Dissenting Opinion (Mundy, J.), at 1-2 (citing Plowman, supra). Respectfully, this

Court’s discussion of the issue was as follows, in toto:

Finally, Appellee argues, as she successfully did before the

trial court, that the mandatory suspension of one's driver's

license as a civil sanction for a drug conviction constitutes

“cruel and unusual punishment” under both the Eighth

Amendment to the United States Constitution and Article 1,

Section 13 of the Pennsylvania Constitution. The

underpinning for her position is that the suspension of her

license is a criminal penalty. Because we disagree with her

characterization of the sanction imposed, we cannot accept

her conclusion. (Although [the statute providing for the

suspension] is included in the Crimes Code, that, in and of

itself, does not make the penalty imposed a criminal

punishment.) [The statute] is merely a civil consequence of

a criminal violation. Furthermore, no discretion exists in its

application as PennDOT is required to suspend a driver's

license upon proper notification of a conviction. For these

reasons, we hold that Section 13(m) of the Act does not

violate either the Eighth Amendment of the United States

Constitution or Article 1, Section 13 of the Pennsylvania

Constitution.

Plowman, 635 A.2d at 127–28. Additionally, in a footnote, we remarked that, even if we

were to find the suspension to be a criminal punishment, we would find that it was not

grossly disproportionate to the underlying offense or arbitrarily inflicted for the purpose

of causing pain and suffering. Id. at 127 n.3.

Thus, the court’s substantive analysis of the issue was a mere two sentences

long, did not support its determination that the license suspension was not punishment

by resort to any legal authority, made no mention of Austin (or any other governing

case), and was buttressed by an alternative holding that the sanction was not cruel and

unusual. Accordingly, we are inclined to find Plowman of little precedential value on this

point, particularly in light of Austin’s apparent reformulation of the principles attendant

the scope of the constitutional prohibition on cruel and unusual punishments.

[J-83-2016] - 24

Nevertheless, that determination does not answer the question of whether

Section 1611(e) is a cruel and unusual punishment. A claim that a particular

punishment is cruel and unusual is evaluated according to the tripartite test set forth in

Solem v. Helm, 463 U.S. 277 (1983), which this Court has described as follows:

The Eighth Amendment does not require strict proportionality

between crime and sentence. Rather, it forbids only extreme

sentences which are grossly disproportionate to the

crime. . . .

. . . The [Solem test] examines: (i) the gravity of the offense

and the harshness of the penalty; (ii) the sentences imposed

on other criminals in the same jurisdiction; and (iii) the

sentences imposed for commission of the same crime in

other jurisdictions. . . . [A] reviewing court is not obligated to

reach the second and third prongs of the test unless a

threshold comparison of the crime committed and the

sentence imposed leads to an inference of gross

disproportionality.

Commonwealth v. Baker, 78 A.3d 1044, 1047 (Pa. 2013) (internal quotation marks

omitted). Additionally, in Commonwealth v. 1997 Chevrolet & Contents Seized from

Young, ___ A.3d ___, 2017 WL 2291733 (Pa. May 25, 2017), this Court recently

expounded further on the appropriate considerations attendant a determination of

whether a sanction constituting Eighth Amendment “punishment” — there, civil forfeiture

of instrumentalities of crime — is grossly disproportionate to the related crime.

Specifically, noting that the United States Supreme Court has largely left it to lower

courts to further develop the intricacies of the gross disproportionality inquiry, we

catalogued myriad factors relevant to determining the harshness of a particular penalty

— including, inter alia, the objective and subjective value of the property forfeited to the

owner and third parties, such as whether forfeiture would deprive the property owner of

his livelihood — as well as factors salient in determining the gravity of an offense —

[J-83-2016] - 25

including, inter alia, the nature of the offense, the offender’s sentence as compared to

the maximum available sentence for the offense, the regularity of the defendant’s

criminal conduct, and any actual harm arising from the offense other than a “generalized

harm to society.” Id. at ___, 2017 WL 2291733 at *27.

Finally, the question of whether a particular punishment is appropriate to a

particular crime “[b]elong[s] in the first instance to the legislature.” Bajakajian, 524 U.S.

at 336 (citing Solem, 463 U.S. at 290 (“Reviewing courts . . . should grant substantial

deference to the broad authority that legislatures necessarily possess in determining the

types and limits of punishments for crimes.”)). Consistent with that admonition, the high

Court has offered the following summary of its “gross disproportionality” decisions:

Under this approach, the Court has held unconstitutional a

life without parole sentence for the defendant’s seventh

nonviolent felony, the crime of passing a worthless check.

Solem[, supra]. In other cases, however, it has been difficult

for the challenger to establish a lack of proportionality. A

leading case is Harmelin v. Michigan, 501 U.S. 957 (1991),

in which the offender was sentenced under state law to life

without parole for possessing a large quantity of cocaine. A

closely divided Court upheld the sentence. . . . Again closely

divided, the Court rejected a challenge to a sentence of 25

years to life for the theft of a few golf clubs under California’s

so-called three-strikes recidivist sentencing scheme. Ewing

v. California, 538 U.S. 11 (2003); see also Lockyer v.

Andrade, 538 U.S. 63 (2003). The Court has also upheld a

sentence of life with the possibility of parole for a defendant’s

third nonviolent felony, the crime of obtaining money by false

pretenses, Rummel v. Estelle, 445 U.S. 263 (1980), and a

sentence of 40 years for possession of marijuana with intent

to distribute and distribution of marijuana, Hutto v. Davis,

454 U.S. 370 (1982) (per curiam).

Florida v. Graham, 560 U.S. 48, 59-60 (2010).

Turning to the instant case, we find that the record is insufficiently developed to

determine whether Section 1611(e)’s application to Shoul was grossly disproportionate

[J-83-2016] - 26

to his crime, particularly in light of our intervening decision in 1997 Chevrolet. Notably,

the evidentiary record contains little detail concerning the facts of Shoul’s offense, the

impact of the loss of his CDL, his sentence as compared to the maximum sentence he

faced, or the actual harmful consequences resulting from his offense. Moreover, neither

the trial court, nor Appellee in his brief, have offered meaningful analysis of the issue.

Indeed, the trial court appeared to erroneously conclude that its threshold determination

that Section 1611(e) was “punishment” within the meaning of the Eighth Amendment

was dispositive of Appellee’s claim, and, although it remarked in its analysis of

Appellee’s substantive due process claim that Section 1611(e) appeared excessive to

the purpose of protecting highway safety and excessive in comparison to Section

1611’s other sanctions, it did not recite or apply the Solem test in any respect.

Appellee, likewise terse, baldly argues in his appellate brief that Section 1611(e)’s

“imposition of an eternal ban from practicing one’s profession is grossly disproportionate

to the severity of a single drug act violation,” and offers no substantive reasoning in

support of that allegation. Appellee’s Brief at 18-19.16 Moreover, insofar as the

proceedings below pre-dated 1997 Chevrolet, neither the parties nor the lower court

had the benefit of its guidance to develop a comprehensive exposition of the harshness

of Section 1611(e)’s application to Shoul or the severity of his offense, or to weigh one

against the other. In our view, in light of the bare record, and our refinement of the

gross disproportionality standard in 1997 Chevrolet, the appropriate course is to vacate

the trial court’s order and remand to that court for further proceedings on the question of

whether Section 1611(e)’s sanction is grossly disproportionate to Shoul’s offense.

16

Appellee also contends that Section 1611(e) “runs contrary to public policy,” in that it

stigmatizes former offenders. Appellee’s Brief at 19 (citing Secretary of Revenue v.

John’s Vending Corp., 309 A.2d 358, 362 (Pa. 1973)). Appellee’s contention in this

regard is outside the scope of the issues raised in this appeal.

[J-83-2016] - 27

III. CONCLUSION

Accordingly, we reverse the trial court’s order insofar as it held that Section

1611(e) violates the Pennsylvania constitutional right to substantive due process, we

vacate the trial court’s order insofar as it held that Section 1611(e) violates the federal

and state constitutional prohibitions on cruel and unusual punishment, and we remand

to the trial court for further proceedings consistent with this opinion.

Jurisdiction relinquished.

Chief Justice Saylor and Justice Donohue join the opinion in full.

Justice Wecht joins Parts I, II(B), and III of the opinion and files a concurring

opinion.

Justice Dougherty joins Parts I and II(B) of the opinion and files a concurring and

dissenting opinion in which Justice Baer joins.

Justice Mundy joins Parts I and II(A) of the opinion and files a concurring and

dissenting opinion.

[J-83-2016] - 28