Double Jeopardy, Collateral Estoppel, and Res Judicata In Maryland Administrative Law
The doctrines of double jeopardy, collateral estoppel, and res judicata, "are different; they apply in different circumstances and they prevent different things." Colandrea v. Wilde Lake Cmty. Assoc., Inc., 361 Md. 371, 390, 761 A.2d 899, 909 (2000). Although they may not sleep in the same bed, they should at least be thought of as residing on the same floor in the dormitory, as collateral estoppel and res judicata are two "branches of a doctrine known as estoppel by judgment," Klein v. Whitehead, 40 Md. App. 1, 13, 389 A.2d 374, 381 (1978), and both res judicata and collateral estoppel are "two of the individual members of a larger doctrinal family, known collectively as the law of double jeopardy."2 Burkett v. State, 98 Md. App. 459, 463, 633 A.2d 902, 904 (1993) (internal citation omitted); see Crist v. Bretz, 437 U.S. 28 (1978) ("A primary purpose of [double jeopardy] is akin to that served by the doctrines of res judicata and collateral estoppel -- to preserve the finality of judgments."). Further, collateral estoppel and res judicata are based on "the sound and obvious principle of judicial policy that a losing litigant deserves no rematch after a defeat fairly suffered . . . on an issue identical in substance to the one he subsequently seeks to raise." Astoria Fed. Sav. and Loan Ass’n v. Solimino, 501 U.S. 104 (1991). Because the policies underlying the three doctrines are similar, it is not uncommon for litigants to argue more than one of them concurrently.
The function of the doctrine of collateral estoppel ("issue preclusion") is to "avoid the expense and vexation of multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions." Colandrea, 361 Md. at 387, 761 A.2d at 907. In Batson v. Shiflett, 325 Md. 684, 602 A.2d 1191 (1992), the Court of Appeals articulated the test to determine whether collateral estoppel bars the litigation of a previously-decided issue. Batson involved a civil suit for defamation, intentional infliction of emotional distress, and conspiracy lodged against a national labor union and its president by a local union chapter president. The NLRB conducted an unfair labor practice proceeding involving this dispute, at which the ultimate issue was whether the national union authorized the local union to enter negotiations with a steel corporation. The issue before the Court of Appeals was whether the NLRB administrative law judge's (ALJ) factual findings would be given preclusive effect in the subsequent civil suit in Maryland state courts. If the ALJ's factual findings received preclusive effect, the defamation action would fail because the ALJ found certain statements by Batson (the national union president) to be true. The Court of Appeals held that the inquiry "hinges on three factors: (1) whether the agency was acting in a judicial capacity; (2) whether the issue presented to the . . . court was actually litigated before the agency; and (3) whether its resolution was necessary to the agency's decision."4 Id. at 701, 602 A.2d at 1200 (quoting West Coast Truck Lines v. Am. Indus., 893 F.2d 229, 234-35 (9th Cir. 1990)). Batson and subsequent case law shape the contours of these three prongs, so I discuss them in turn.5
A. Agency Sitting in a Judicial Capacity
The Court in Batson explained that "collateral estoppel routinely has been applied to factual determinations made by . . . agencies following a fair adversarial hearing," and that “[b]y conducting a hearing, allowing the parties to present evidence and ruling on a dispute of law, the [agency] act[s] in a judicial capacity." Batson, 325 Md. at 702, 705, 602 A.2d at 1200, 1202 (quoting West Coast Truck Lines, 893 F.2d at 235); see Batson, 325 Md. at 705, 602 A.2d at 1202 (stating that the first prong is satisfied where the proceeding "embraced elements of adjudicatory procedure consistent with established principles of due process" and that collateral estoppel does not apply where the process is "very informal"). Ultimately, the Court of Appeals ruled in Batson that the first prong was satisfied, considering the ALJ conducted a hearing, allowed the parties to present evidence, and ruled on a dispute of law. Id. at 705, 602 A.2d at 1202.
This first prong was found not to be satisfied, however, in Maryland State Department of Education v. Shoop, 119 Md. App. 181, 704 A.2d 499 (1998), where the initial Department of Education proceeding, at which a Maryland Correctional Training Center employee was suspended for one day, was conducted by "Assistant Superintendents of Schools, not judicial officers" trained in civil procedure, "[t]he proceedings were not recorded in any way," "[n]o rules of evidence or trial procedure were recognized,"6 and because "the Court of Appeals . . . specifically held that the [discipline] of a State employee is executive in nature, not judicial or quasi-judicial."7 Id. at 199, 704 A.2d at 508. There should be little dispute, however, that when an ALJ of the Maryland Office of Administrative Hearings renders findings of fact and conclusions of law in the context of a "contested case," he or she is acting in a "quasi-judicial" capacity sufficient to meet Batson's first prong.8 See Reid v. State, 119 Md. App. 129, 135, 704 A.2d 473, 476 (1998) ("[T]here is no question that the ALJ was acting in her judicial capacity when she made her findings.").
B. Actually Litigated Before the Agency
Batson instructs that the second prong cannot be satisfied "[i]f anything is left to conjecture as to what was necessarily decided"; also, "[i]t must appear that the precise issue was raised and resolved in the former proceeding." Batson, 325 Md. at 706, 602 A.2d at 1202. In Batson, the Court of Appeals held that this prong had not been met (and thus collateral estoppel did not bar litigation of the alleged torts), considering that the issue before the NLRB was whether the national union authorized the local union to negotiate a contract with a steel company, which had no bearing on the veracity of the alleged defamatory statements (i.e., the allegations that the national union president accused the local union president of committing criminal acts). Id. at 707, 602 A.2d at 1203.
In Reid v. State, 119 Md. App. 129, 704 A.2d 473 (1998), Reid was cited for driving while intoxicated and/or under the influence of alcohol. At the license suspension administrative hearing, the ALJ ruled that his license should not be suspended, finding that Reid had not been advised properly of the consequences of his failure to take the chemical test and that he had not consumed alcohol on the day he was asked to take the test. Reid then moved to dismiss the traffic charges, asserting that the State was estopped collaterally from proceeding with those charges, as the ALJ determined the issues to be dispositive as to the criminal matters. Id. at 131, 704 A.2d at 474. The Court of Special Appeals held that the second Batson prong was not satisfied because the issue relevant in the criminal matters -- whether he "was not driving or attempting to drive" on the day in question -- was not litigated before and decided by the ALJ. Id. at 135-36, 704 A.2d at 476. That is, although the ALJ found that Reid had not been driving when the police officer approached his car on the shoulder of the road, the issue of whether he was attempting to drive on the day in question was not litigated before or decided by the ALJ. Id.; see also Weatherly v. Great Coastal Exp. Co., Inc., 164 Md. App. 354, 371 883 A.2d 924, 934 (2005).
C. Necessary to the Agency’s Determination
Batson instructs that "[a] factual issue is necessary to the determination only if its resolution is required to support the judgment entered in the prior proceeding." Batson, 325 Md. at 707-08, 602 A.2d at 1203. In Batson, the Court held that this prong was not met, as, not only were the ALJ's findings vis á vis the defamatory statements not necessary to his ruling, but the ALJ, in fact, did not make findings regarding the alleged defamatory fliers. Id. at 708, 602 A.2d at 1203.
In Reid, supra, the Court of Special Appeals determined that this prong had not been met. The intermediate appellate court explained that, in an administrative hearing for license suspension or revocation stemming from a DWI/DUI, if the driver can prove adequately that the police officer did not warn the motorist of the administrative consequences of a failure to take the test, the driver produced a "perfect defense." Reid, 119 Md. App. at 139, 704 A.2d at 477. Because Reid was able to show that, he mounted such a "perfect defense," and, thus, the issue involving whether he had been drinking and driving was immaterial to the administrative proceeding. Id. at 139, 704 A.2d at 478-79. Accordingly, the third Batson prong was not satisfied, and the State was not estopped from prosecuting the criminal charges. See also Neifert, 395 Md. at 507, 910 A.2d at 1112 (discussing this prong).9
The Test -- in order for an issue decided previously to be given preclusive effect, all three factors must be satisfied:
- The agency was acting in a judicial capacity. (When an agency is holding a contested case hearing, it likely "acts in a judicial capacity.")
- The issue presented to the court was actually litigated before the agency. (It must appear that the precise issue was raised and resolved in the former proceeding.)
- Resolution of the issue was necessary to the agency's decision. (It is "necessary" only if its resolution is required to support the judgment entered in the prior proceeding.)
Under principles of res judicata ("claim preclusion"), where a "second suit is between the same parties, and is upon the same cause of action, a judgment in the earlier case . . . is an absolute bar, not only as to all matters which were litigated in the earlier case, but as to all matters which could have been litigated." MPC, Inc. v. Kenny, 279 Md. 29, 32, 367 A.2d 486, 489 (1977). In order for res judicata to bar the re-litigation of a claim, the following three elements must be present: "1) that the parties in the present litigation are the same or in privity with the parties to the earlier dispute; 2) that the claim presented in the current action is identical to the one determined in the prior adjudication; and 3) that there was a final judgment on the merits." Colandrea, 361 Md. at 392, 761 A.2d at 910.
Little has been said in reported Maryland appellate cases in the administrative realm regarding the first or third prongs. Regarding the second prong, however, Cicala v. Disability Review Bd. for Prince George’s County, 288 Md. 254, 418 A.2d 205 (1980), is instructive. In Cicala, the issue was whether a policeman's disability was service-connected, such that the policeman was entitled to higher disability benefits than if the injury was not service-connected. See id. at 257, 418 A.2d at 207-08. Although the Workmen's Compensation Commission, at an earlier hearing, found the policeman's injury to be related to his employment, the Disability Review Board determined that his disability was not service-connected. On appeal, Cicala argued that the Commission's finding was entitled to preclusive effect before the Disability Review Board. See id. at 263, 418 A.2d at 211. The Court of Appeals framed, as the issue before it, "whether a quasi-judicial determination by an administrative agency is binding when an issue which appears to be identical arises under another statute." Id. at 264, 418 A.2d at 211. Answering that question in the negative, the Court stated that, "although the issues before the two administrative agencies may appear to be identical, generally they are not," considering that different statutory schemes (i.e., enabling legislation) "have different legislative histories, purposes, scopes of coverage, language, standards, procedures, and policies which may dictate opposite results." Id. at 265, 418 A.2d at 211. This was true in Cicala particularly as the different statutory schemes had different origins, the scope of coverage under both differed, and each had different funding sources. Id. at 265, 418 A.2d at 212; see also Univ. of Md. at Baltimore v. Boyd, 93 Md. App. 303, 308-312, 612 A.2d 305 (1992); Colandrea, 361 Md. at 392-93, 761 A.2d at 910.
Because of the dearth of cases dealing with res judicata in the administrative context, a number of questions remain unanswered. For example, under the first prong, let us suppose multiple agencies prosecute one individual/company for the same underlying behavior. Does that mean that -- assuming the issue is the same for both agencies -- the decision of the first agency to complete its proceeding should not be given res judicata effect in the second agency's proceeding, simply because a different agency is prosecuting in each case? Or, is it enough that both agencies are part of the Executive Branch of State government? Further, because each administrative agency acts pursuant to its own enabling legislation, does that mean that the commonality of issues analysis, as between the two agencies, can never be sufficiently the "same" for purposes of the second prong?
The Test -- in order for res judicata to apply, all three factors must be satisfied:
- The parties in the present litigation are the same or in privity with the parties to the earlier dispute;
- The claim presented in the current action is identical to the one determined in the prior adjudication; (Not met when an issue is being analyzed under two sets of enabling legislation (i.e., by two separate agencies), even when the issue is similar to the one adjudicated formerly; and
- There was a final judgment on the merits.
The Double Jeopardy Clause of the United States Constitution, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784 (1969), provides, in pertinent part, that "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend V.10 The purpose of the Double Jeopardy Clause is to "protect 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.” United States v. Halper, 490 U.S. 435 (1989); see Robinson v. State, 116 Md. App. 1, 4, 695 A.2d 198, 200 (1997); Johnson v. State, 95 Md. App. 561, 566, 622 A.2d 199, 202 (1993).
A discussion of double jeopardy in the administrative-law context may seem out of place, considering that some early cases noted that "[g]enerally, the double jeopardy prohibition only applies to bar criminal prosecutions." In re John P., 311 Md. 700, 706, 537 A.2d 263, 266 (1988); see In re Blessen H., 392 Md. 684, 706, 898 A.2d 980, 993-94 (2006). In fact, in reported case law in Maryland, the argument that an administrative sanction constitutes "punishment" for purposes of double jeopardy has never succeeded. After a series of cases, discussed infra, holding that certain civil penalties may be violative of the double jeopardy protections, however, it is now clear that these protections extend beyond the criminal-law arena. See Young v. State, 370 Md. 686, 703, 806 A.2d 233, 243 (2002) ("[T]he [Supreme] Court has recognized that a civil label . . . is not always dispositive . . . ."); Montgomery County v. Krieger, 110 Md. App. 717, 729, 678 A.2d 621, 627 (1996) ("[T]he government can impose punishment, not only in criminal proceedings, but also in civil proceedings."); Johnson v. State, 95 Md. App. at 567, 622 A.2d at 202 ("Halper . . . has given defense attorneys a new rack on which to hang their double jeopardy hat."). Thus, because administrative agencies may levy fines, suspend or revoke professional or motor-vehicle licenses, and exact other measures that may "carry the sting of punishment," Halper, 490 U.S. at 447 n.7, arguments that administrative sanctions run afoul of double jeopardy protections may no longer be treated lightly and without analysis.
In determining whether an administrative sanction constitutes "punishment" for purposes of double jeopardy analysis, most reported Maryland cases look to the Supreme Court's decision in United States v. Halper, supra. In Halper, the manager of a medical-services company was convicted of submitting numerous false claims for government reimbursement, in violation of a federal criminal false-claims statute. Halper, 490 U.S. at 437. Based on the facts established in the criminal proceeding, the trial court granted summary judgment to the government in a related civil case -- arising under the same facts -- brought pursuant to the civil False Claims Act. Id. at 438. Under the Act, Halper was liable for $2,000 on each of the sixty-five false claims, and other damages. Id. Halper contested, and the trial court held, that this civil penalty, premised on the exact facts underlying his criminal conviction, violated the Double Jeopardy Clause. Id. The Halper Court, therefore, was tasked to determine "under what circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause." Id. at 446.
The Court began by noting that whether the sanction is called "civil" or "criminal" is of little importance, as "a civil . . . sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment." Id. at 447. Rather, the Court, in announcing "a rule for the rare case," held that a civil sanction constitutes "punishment" for purposes of double jeopardy analysis "to the extent that the . . . sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." Id. at 449, 109 S. Ct. at 1902, 104 L. Ed. 2d at 502.11 Thus, in applying Halper to administrative sanctions, Maryland courts ask whether the sanction is remedial, or whether it acts only as a deterrent or as retribution.
In State v. Jones, 340 Md. 235, 666 A.2d 128 (1995), the Court of Appeals dealt with whether the provisions of Maryland Code (2001, 2008 Repl. Vol), Transportation Article, 16-205.1 -- providing for the automatic suspension of a driver's license for refusing a breathalyzer test, or for registering > .08 on a breathalyzer -- constitute "punishment" within the ambit of double jeopardy jurisprudence. The Court undertook an analysis, not to determine whether the statute was considered civil or criminal in nature, but, per Halper, whether the statute "may be 'fairly' said to be remedial." Id. at 244-45, 666 A.2d at 132. Our analysis began by emphasizing that whether a sanction constitutes "punishment" is not to be determined from the defendant's perspective because "even remedial sanctions carry the sting of punishment." Id. at 249, 666 A.2d at 135. We noted that the suspension of licenses -- driving and professional alike -- is generally understood to serve the remedial purpose of "protect[ing] the public from unscrupulous or unskilled [people] who would otherwise engage in the licensed activity." Id. at 251, 666 A.2d at 136. In looking to the legislative history of the statute, the Court looked to Johnson, supra, for the proposition that the statute serves the dual purposes of serving both deterrent and remedial purposes. Id. at 259, 666 A.2d at 139. Finally, notwithstanding the deterrent effect the statute serves, "the remedial purpose of maintaining safety on the public highways justifies the . . . suspension that [the statute] may impose . . . ." Id. at 265, 666 A.2d at 142. Considering the predominately remedial features of the statute, the Court held that the statutory sanctions did not constitute "punishment," and thus rejected the double jeopardy argument. See also Robinson v. State, 116 Md. App. 1, 695 A.2d 198 (1997) (rejecting a double jeopardy argument that a defendant could not be incarcerated and lose good-conduct time for the same misbehavior); Johnson v. State, 95 Md. App. at 566, 622 A.2d at 202 (rejecting another double jeopardy challenge to the driver's-license suspension statutes); McDonnell v. Comm'n on Med. Discipline, 301 Md. 426, 436, 483 Md. 76, 81 (1984) ("The purpose of disciplinary proceedings against licensed professionals is not to punish the offender but rather a catharsis for the profession and a prophylactic for the public.").
One subset of cases worth noting is the line dealing with what has been coined "administrative double jeopardy"; that is, where an individual claims that they have been punished administratively two or more times for the same underlying misbehavior. For instance, in Montgomery County v. Krieger, 110 Md. App. 717, 678 A.2d 621, 628 (1996), a police officer, who drove away from a police gas station pump without removing the fuel hose nozzle from her police car, was counseled about the incident and documentation surrounding the incident was placed in her personnel file. Id. at 722, 678 A.2d at 624. Thereafter, following an administrative hearing, the police officer was fined $150 for the same actions. Id. at 725, 678 A.2d at 625. On appeal, the officer argued that the fine was an illegal successive punishment, running afoul of the doctrine of "administrative double jeopardy." Id. at 731, 678 A.2d at 628. The Court of Special Appeals applied Halper, holding that the counseling and placement of the documentation in the personnel file "was not punishment[,] but was merely remedial action, and [thus] . . . appellee was not subject to successive prosecutions for the same offense." Id. at 732, 678 A.2d at 628-29. The intermediate appellate court, responding to the officer's invocation of the doctrine of "administrative double jeopardy," held that the doctrine had not been adopted by Maryland's courts. Id. at 732, 678 A.2d at 628. In my view, however, what these cases -- those dealing with two administrative sanctions for the same misbehavior -- turn on is not whether the courts have adopted the doctrine of "administrative double jeopardy," but rather, whether each of the sanctions constitutes "punishment" sufficient to violate double jeopardy protections. See also Ward v. Dept' of Pub. Safety & Corr. Servs., 339 Md. 343, 663 A.2d 66 (1995) (discussing and dismissing similar "administrative double jeopardy" arguments that a correctional officer could not be suspended, and then his employment terminated, for the same administrative infractions).
Although our double jeopardy jurisprudence relies primarily on Halper, the Supreme Court's later decision in Hudson v. United States, 522 U.S. 93 (1997), changed drastically the double jeopardy landscape. See, e.g., Nivens v. Gilchrist, 319 F.3d 151, 158 n.10 (4th Cir. 2003) ("Hudson expressly overruled the method of analysis in United States v. Halper . . . .") (internal citations omitted). In Hudson, the Supreme Court reverted back to the pre-Halper criminal-versus-civil distinction, holding that the Double Jeopardy Clause "is not a bar to a later criminal prosecution [where] the administrative proceedings were civil, not criminal." Hudson, 522 U.S. at 96. A "criminal" sanction is not limited, however, to those meted out by a judge following a criminal conviction; rather, the Supreme Court laid out a two-part test to determine whether a sanction is to be labeled criminal or civil. Initially, whether a punishment is criminal or civil is a matter of statutory construction; a court asks whether the legislature, "'in establishing the penalizing mechanism, indicated . . . a preference for one label or the other.'" Id. at 99. Next, even where the legislature has intended a sanction to be civil in nature, the court inquires further "whether the statutory scheme was so punitive in purpose or effect . . . to transform [it] into a criminal penalty," and, in aid of this inquiry, the court employs a list of factors enumerated in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).12 Id. at 99-100. To my knowledge, no Maryland appellate court faced with a double jeopardy challenge in an administrative law context13 has applied Hudson, even though Hudson was decided more than a decade ago.14 Moving forward, a proper double jeopardy analysis, I submit, -- both in the administrative context and otherwise -- should employ the Hudson framework.15
There is no reported case in Maryland in which the argument has succeeded that an administrative sanction constitutes "punishment" for purposes of double jeopardy.
When double jeopardy is raised, a court should disregard Halper and apply the Supreme Court's framework in Hudson, which asks whether the administrative sanction is "criminal" versus "civil in nature" - two-part test:
- Whether the legislature indicated a preference for one label over the other (i.e., criminal versus civil);
- Even where the legislature deems, explicitly or implicitly, a sanction "civil," the court asks further whether the statutory scheme was so punitive in purpose or effect to transform it into a criminal penalty, using the factors supra at footnote 12.
- My thanks to Professor Arnold Rochvarg of the University of Baltimore School of Law for the running start and inspiration for this piece by his sharing with me of an early draft of a relevant chapter from his upcoming new book on Maryland Administrative Law, that will not be just a Third Edition of his seminal publication, Maryland Administrative Law. I can hardly wait.
- For the best extended discussion, of which I am aware, of the doctrines of collateral estoppel and res judicata, see Colandrea v. Wilde Lake Cmty. Assoc., Inc., 361 Md. 371, 387-393, 761 A.2d 899, 907-910 (2000), authored by my former colleague and old running mate, Judge Cathell.
- Although there is some language in earlier cases questioning whether, or, the extent to which, the doctrines of collateral estoppel and/or res judicata apply to administrative proceedings, see, e.g., Sugarloaf Citizens Ass'n v. Northeast Md. Waste Disposal Auth., 323 Md. 641, 658-59, 594 A.2d 1115, 1123 n.13 (1991) ("It is unclear under Maryland law to what extent principles of res judicata and collateral estoppel apply to administrative decisions."), it is now well-settled that the doctrines are fully applicable to administrative proceedings.
- It should be noted that, because collateral estoppel is a common law principle, the Legislature is free to circumvent application of the doctrine in given situations by statute. See Janes v. State, 350 Md. 284, 711 A.2d 1319 (1998) (holding that a statute, providing that the administrative and criminal proceedings associated with DWI/DUI are to be treated as entirely separate, negates the common law doctrine of collateral estoppel).
- Although the cases I discuss involve mainly situations in which the first proceeding is before an administrative agency and the second proceeding is in a court, I find no reason that the same test should not be applied in situations in which an agency proceeding is followed by another agency proceeding, or certainly where a court case is followed by an agency proceeding.
- The rules of evidence are relaxed in administrative proceedings. See Bereano v. State Ethics Comm'n, 403 Md. 716, 750, 944 A.2d 538, 557 (2008).
- It should be noted that Shoop applied the Batson test as res judicata, not collateral estoppel. Because Batson seems clear that the test it announced was only intended to apply to collateral estoppel -- and, as we will see infra, a separate test exists for evaluating res judicata -- it appears the COSA in Shoop applied the incorrect test to determine the applicability of res judicata. See also Seminary Galleria, LLC v. Dulaney Valley Improvement Ass'n, Inc., 192 Md. App. 719, 736, 995 A.2d 1068, 1078 (2010) (also applying Batson to res judicata).
- The Court of Appeals deemed an agency's affirmance of an ALJ's recommendations -- in situations where OAH has not been delegated final decision-making duties -- to constitute a quasi-judicial act sufficient to meet the first prong of the Batson test. See Neifert v. Dep’t of the Env't, 395 Md. 486, 507 910 A.2d 1100, 1112 (2006).
- For a discussion of offensive and defensive nonmutual collateral estoppel, see Culver v. Md. Ins. Comm’r, 175 Md. App. 645, 653-58, 931 A.2d 537, 542-45 (2007). Briefly: Offensive use of nonmutual collateral estoppel occurs when a plaintiff seeks to foreclose a defendant from relitigating an issue the defendant has previously litigated unsuccessfully in another action against a different party. Defensive use of nonmutual collateral estoppel occurs when a defendant seeks to prevent a plaintiff from relitigating an issue the plaintiff has previously litigated unsuccessfully in another action against a different party. Id. at 653-54, 931 A.2d at 542 (quoting Welsh v. Gerber Prods., Inc., 315 Md. 510, 518 n.6, 555 A.2d 486, 489 n.6 (1989)). Whereas nonmutual collateral estoppel applies when one of the parties in the second proceeding was not a party to the first, mutual collateral estoppel involves the same parties in both the first and second proceedings. See Consumer Fin. Corp. v. Reams, 158 S.W.3d 792, 796 n.3 (Mo. Ct. App. 2005).
- Although there is no express double jeopardy provision in the Maryland Constitution, "Maryland common law provides well-established protections for individuals against being twice put in jeopardy." State v. Long, 405 Md. 527, 536, 954 A.2d 1083, 1089 (2008).
- Relevant to monetary fines that administrative agencies levy, the Court held that where the "civil penalty . . . bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as 'punishment' in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment." Halper, 490 U.S. at 449.
- Those factors include: "(1) whether the sanction involves an affirmative disability or restraint" (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter"; (4) "whether its operation will promote the traditional aims of punishment retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned." Hudson, 522 U.S. at 99-100 (quoting Mendoza-Martinez, 372 U.S. at 168).
- Maryland courts have applied Hudson in other contexts. See State v. Raines, 383 Md. 1, 857 A.2d 19 (2004) (ex post facto law); Mayor of Baltimore v. One 1995 Corvette, 119 Md. App. 691, 706 A.2d 43 (1998), rev'd, 353 Md. 114, 724 A.2d 680 (1999) (civil forfeiture).
- See Spencer v. Md. Bd. of Pharmacy, 380 Md. 515, 534-35, 846 A.2d 341, 351 (2004) (focusing on the remedial-versus-punitive distinction, rather than Hudson's criminal-versus-civil emphasis). The Court of Appeals, however, has looked to the Martinez-Mendoza factors, supra note 12, in determining whether a sanction constitutes "punishment," but not in a double jeopardy context. See Young v. State, 370 Md. 686, 806 A.2d 233 (2002).
- That is not to say, however, that the outcome in any of the aforementioned or aforecited cases -- all of which rejected the double jeopardy argument -- would have been different if employing a Hudson analysis, considering that the Hudson framework is a narrower one (read: less defendant-friendly) than in Halper. See, e.g., United States ex rel Thompson v. Columbia/HCA Healthcare Corp., 20 F. Supp. 2d 1017, 1027 n.11 (1998) ("[I]n Hudson v. United States, the Supreme Court announced that it was . . . returning to a narrower interpretation of the Fifth Amendment . . . .").