Silva v. Director of Division of Marine Fisheries
Silva v. Director of Division of Marine Fisheries
Opinion of the Court
Although acquitted of the criminal charge of possessing egg-bearing female lobsters,
On September 4, 1995, during an administrative inspection at sea of the fishing boat “The Seagull,” environmental police officers
1. Double jeopardy. Double jeopardy is violated if multiple criminal prosecutions are brought or multiple criminal punishments are imposed for the same offense. See Hudson v. United States, 522 U.S. 93, 99 (1997); Luk v. Commonwealth, 421 Mass. 415, 430 (1995). The State may, however, impose both criminal and civil sanctions for the same act or omission. The double jeopardy clause requires only that the State not punish nor attempt to punish twice for the same offense. Id. at 420.
Relying on Luk v. Commonwealth, 421 Mass. 415, the Superior Court judge analyzed G. L. c. 130 and ruled that although “the suspension of the plaintiff’s permit does have punitive aspects, its main purpose is to protect the public resources of marine fisheries rather than punishment and is properly characterized as a non-punitive measure.”
Subsequent to the opinion in Luk (and to the judge’s decision in this case), the Supreme Court of the United States, in Hudson v. United States, 522 U.S. 93, “clarified the proper analysis for determining whether civil sanctions constitute punishment.” Powers v. Commonwealth, 426 Mass. 534, 537-538 (1998). See Commonwealth v. Stone, 45 Mass. App. Ct. 259, 262 (1998). Under that analysis, it has become even more evident that the suspension of Silva’s permit is a civil sanction.
“Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction.” Hudson, supra at 99. The court must first determine whether the Legislature has expressly or impliedly indicated whether the penalty is civil or criminal. Ibid. If it is determined that the Legislature has intended a civil penalty, the court must next examine “whether the statutory scheme [is] so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.” Ibid, (internal citations and quotations omitted). Certain factors, set forth in the margin,
Even a brief examination of G. L. c. 130 leaves no doubt as to the legislative intent. The sanctions the director is authorized to impose are an integral part of his function to promote the conservation of marine resources. The powers given to the director point to a legislative purpose to “conserve, improve and increase the supply of fish in the coastal waters,” and to promote and develop the commercial fishing industry. G. L. c. 130, § 17(3), (4). He is to cooperate with coastal cities and towns for the purpose of increasing the supply of shellfish and exterminating the enemies thereof. G. L. c. 130, § 20. Lobsters are specially protected (as are scallops) and a permit from the director is required to fish for lobsters or edible crabs. G. L. c. 130, § 38. For other fish, a permit is required to fish for commercial purposes. G. L. c. 130, § 80.
The director is authorized to adopt rules and regulations “necessary for the maintenance, preservation and protection of . . . marine fisheries resources,” G. L. c. 130, § 17(10), as well as to issue rules and regulations “relative to the form, contents, and use of all permits issued under this chapter” (with certain exceptions). G. L. c. 130, § 80.® He is given the power to revoke permits for violation of his regulations, one of which specifi
Silva argues that the proper standard to be used in the second inquiry — whether the statutory scheme is so punitive as to transform what was intended as a civil penalty into a criminal one — requires an analysis of the totality of the circumstances with specific emphasis on how the regulatory scheme was applied to him and not on the underlying regulatory goals of G. L. c. 130 and 322 Code Mass. Regs. This approach was explicitly rejected in Hudson, supra at 96, 101-102, disavowing in large part the method of analysis used in United States v. Halper, 490 U.S. 435 (1989). Assessing (in accordance with Halper) the actual sanctions imposed to determine whether a particular sanction is “punitive,” is “ill considered” and “unworkable.” Hudson, supra at 101, 102. Rather, the statute must be evaluated on its face to determine whether it is so punitive as to be deemed criminal.
We now turn to the factors which Hudson considered “useful guideposts” for determining whether the banking statute involved in that case was so punitive as to render it criminal. See note 7, supra. We quote, paraphrase, and adapt the Hudson analysis, supra at 104, to evaluate the sanctions in the statute at hand, c. 130, § 80. First, the “revocation of a privilege voluntarily granted,” such as the suspension or revocation of a license or permit, “is characteristically free of the punitive criminal element.” Hudson, supra. See Luk v. Commonwealth, 421 Mass, at 423; Powers v. Commonwealth, 426 Mass, at 539. “Second, the sanctions imposed do not involve an ‘affirmative disability or restraint,’ as that term is normally understood.” Hudson, su
In sum, there is little showing, let alone the “clearest proof that we require,” Hudson, supra at 104, 105, that the suspension of Silva’s license and the prohibition against transfer are punitive. The double jeopardy clause is not implicated.
Silva also argues that he was punished more severely than if he had been found guilty of the criminal offense because c. 130, § 2, provides for a license suspension of one month for the first violation of a law or regulation relating to marine fish and fisheries. That “the consequence for the subject of the proceeding may be as, or more severe, than some criminal sanctions” is not determinative. Hill, petitioner, 422 Mass. 147, 152, cert, denied, 519 U.S. 867 (1996). Powers v. Commonwealth, 426 Mass, at 539-540 (administrative suspension of driver’s license had potential of lasting longer than suspension under criminal statute).
2. Inadequate notice. Silva points to the fact that the order to show cause, see note 6, supra, did not notify him that the divi
Since there was here no violation of the prohibition against double jeopardy, and since Silva received adequate notice of the administrative hearing, the judgment of the Superior Court is affirmed.
So ordered.
In relevant part, G. L. c. 130, § 41, provides:
“Whoever takes, sells or has in possession any female lobster bearing eggs . . . shall be punished for the first offense by a fine of not less than fifty nor more than one hundred dollars for every such lobster . . . but a'person who takes any such lobster and immediately returns it alive to the waters from which it was taken shall not be subject to such penalty.”
Although Silva’s complaint purported to seek relief under G. L. c. 231 A, the Superior Court judge properly viewed it as an appeal under G. L. c. 30A, § 14. See Rosenfeld v. Board of Health of Chilmark, 27 Mass. App. Ct. 621, 624 (1989), and cases cited.
The officers were from the Division of Law Enforcement within the Department of Fisheries, Wildlife and Environmental Law Enforcement of the Executive Office of Environmental Affairs.
An additional live female lobster bearing eggs with yellow rubber bands on its claws was contained in a barrel with the legal catch.
The permit number was incorrect, but the record suggests that nothing hinges on that error.
The order went on to state: “to wit: on or about September 4, 1995 you were in possession of 83 egg bearing female lobsters, all with yellow bands on their claws. . . . This adjudicatory proceeding is held in accordance with the hearing provisions of G. L. c. 30A .... You have the right to be represented by counsel and to view the records of the Division of Marine Fisheries.”
The Hudson court listed, 522 U.S. at 99-100, the following factors mentioned in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963), as “useful guideposts”:
Section 80 provides:
“The director shall revoke and cancel and require the surrender of any permit issued under this chapter if, in his opinion, after a hearing, after due notice by him or some person designated by him, the holder has violated any rule or regulation of the director.”
Even in the absence of a regulation such as § 7.01(9) authorizing the director to suspend permits, the statutory power to revoke permits given in G. L. c. 130, § 80, includes within it the authority to suspend them. See Mc-Gonigle v. The Governor, 418 Mass. 147, 151 (1994); Tobin v. Sheriff of Suffolk County, 377 Mass. 212, 214 (1979). See also Fragopoulos v. Rent Control Bd. of Cambridge, 408 Mass. 302, 304 (1990).
Silva’s additional argument that the division’s proceedings were barred on principles of collateral estoppel because of his previous acquittal is likewise without merit. Preclusive effect is denied to a judgment where the prior proceeding, here the criminal trial, required a heavier burden of proof to find guilt than the civil proceeding. Helvering v. Mitchell, 303 U.S. 391, 397-398 (1938). Restatement (Second) of Judgments §§ 28(4), 85 & comment g, at 300 (1982).
No evidence was introduced by anyone on this issue.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.