Thursday, July 29, 2010

For Jeopardy to Attach in an Administrative Action Must Either Intend the Punishment to be Criminal, or the Sanction is So Punitive it Transforms into a Criminal Sanction

Utah v. Bushman, 2010 UT App. 120, (Utah Court of Appeals, May 6, 2010).

Bushman agreed to a consent order with the Utah Division of Securities in which he agreed to pay a fine and cease any further violations of the securities acts.  When the State brought criminal charges, Bushman argued that the criminal charges constituted double jeopardy.  The trial court disagreed, and accepted his conditional guilty plea.  On appeal, the Court administered the Hudson test to review the Administrative Sanction against Bushman.  The consent-order required Bushman to pay restitution to his victims and a $5000.00 fine.  If he paid the fine quickly, he would only have to pay half the fine. 

On Appeal, the Court found that for jeopardy to attach in an administrative the action, the legislature must have intended the sanction to be criminal, or the sanction is so punitive it transforms into a criminal sanction.  The Court determined that the legislature intended the sanction to be civil.  The Court then evaluated the sanction under the seven Kennedy factors and Affirmed the trial court determining that the fine was not so punitive that jeopardy should attach.


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