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THIRD DIVISION

DECEMBER 4, 1998

No. 1--98--0090

JUSTICE CERDA delivered the opinion of the court:

The State appeals from an order of the circuit court of Cook County which dismissed thepetitionfor adjudication of wardship filed against respondent, K.B., on grounds of double jeopardy. TheState contends that the delinquency proceeding was not foreclosed by respondent's priorexpulsion from school for the same conduct and that the court erred in dismissing the petition. On March 5, 1997, 15-year-old K.B. was found in possession of 4.2 grams of cannabis at herhigh school. She admitted to school authorities that she had brought the substance to school withthe intent to sell it as she had in the past. After a meeting pursuant to section 10-22.6 of theSchool Code (105 ILCS 5/10-22.6 (West 1996)), the school board expelled respondent fromschool for two years, the maximum allowed under that statute.

On April 17, 1997, a petition for adjudication of wardship was filed against respondentallegingthat she was delinquent based on her March 5, 1997, possession of cannabis and possession ofcannabis in her high school with the intent to deliver it. Prior to the adjudicatory hearing,respondent filed a motion to dismiss the petition on grounds of double jeopardy. She maintainedthat her two-year school expulsion for the same conduct constituted "punishment" within themeaning of the double jeopardy clause of the United States Constitution and barred any furtherpunishment.

At the hearing on her motion, the State argued that double jeopardy did not arise sincerespondent's expulsion from school was the result of an administrative action by the high schoolboard which did not involve the court system. Respondent answered that the penalty imposedwas severe enough to constitute punishment and first jeopardy.

Before announcing its decision on respondent's motion, the circuit court reviewed thehistory ofthe case, as set forth above, and the disposition reached by the school board. The court foundthat the two-year expulsion, with no alternative school plan, served no legitimate remedialpurpose, and was punishment. Based on this finding, the court concluded that any furtheradjudication for the same conduct would violate her constitutional protection against doublejeopardy and granted respondent's motion to dismiss the delinquency petition. The courtsubsequently denied the State's motion for reconsideration. In this appeal, the State challengesthe propriety of the court's ruling. The State claims that the court's reliance on UnitedStates v.Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), was misplaced citingtheSupreme Court case of Hudson v. United States, U.S. , 139 L. Ed. 2d 450, 118 S. Ct. 488(1997), and the resolution of a nearly identical issue in In re S. J., 291 Ill. App. 3d703 (1997). We agree and reverse.

The double jeopardy clause provides that no person shall "be subject for the same offence tobetwice put in jeopardy of life or limb." U.S. Const., amend. V. This clause, which has beenapplied to juvenile proceedings (Breed v. Jones, 421 U.S. 519, 528-531, 44 L. Ed.2d 346 , 95 S.Ct. 1779 (1975)) protects, inter alia, against multiple punishments forthe same offense. Halper,490 U.S. at 440. It precludes the government from punishing a person twice or attempting tocriminally punish a person for the same offense a second time. United States v.Ursery, 518 U.S.267, 273, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996) (citing cases).

Respondent claims that her expulsion from school for the maximum period allowed by lawwasnot remedial, but "punitive in character," bringing it within the ambit of the double jeopardyclause. In support of that conclusion she relies on Halper, 490 U.S. at 448, wherethe SupremeCourt held that where a civil sanction cannot fairly be said solely to serve aremedial purpose, butcan only be explained as serving purposes of retribution or deterrence, it is punishment, invokingthe double jeopardy clause.

In Hudson, _____U.S. _____, 139 L. Ed.2d at 460, 118 S. Ct. at 494, theSupreme Court foundthe analysis employed by Halper to be an "ill-considered" deviation fromtraditional doublejeopardy principles and acknowledged that the Halper test had proved unworkablein subsequentcases. The Court recognized that all civil penalties have some deterrent effect and that if asanction had to be "solely" remedial to avoid implicating the double jeopardyclause, no civilpenalties would be beyond its scope. Hudson, _____U.S. _____, 139 L. Ed.2d at460-61, 118 S.Ct. at 494-495.

Citing Supreme Court cases which preceded Hudson, Illinois courts haddetermined that theSupreme Court had not set forth an inflexible test which automatically classified a sanction aspunishment unless it could fairly be said to solely serve a remedial purpose. Basedon thatdetermination, the courts in People v. Lavariega, 175 Ill. 2d 153, 157-159 (1997)and People v.Dvorak, 276 Ill. App. 3d 544, 549, 552-553 (1995) concluded that the summarysuspension of adefendant's driver's license was not punishment under the double jeopardy clause and would notbar further prosecution on the underlying conduct.

In S.J., a case nearly identical to that at bar but decided beforeHudson, the reviewing courtreversed the trial court's dismissal of a delinquency petition based on double jeopardy grounds. The court in S.J., 291 Ill. App. 3d at 706, found that the school board's expulsion ofrespondentfor physically assaulting the high school principal was remedial in nature and did not implicateconstitutional double jeopardy principles. In reaching this conclusion the court observed that theschool district was not compelled to permit dangerous persons on the premises, and that theexclusion of such persons from it was a way to protect all those rightfully there to learn or work. S.J., 291 Ill. App. 3d 706. Similar concerns were expressed in Wilson v.Collinsville CommunityUnit School District No. 10, 116 Ill. App. 3d 557, 562 (1983), where the court affirmed astudent's expulsion by the board noting the negative impact on the school population andenvironment which results from the dissemination of drugs on a high school campus.

In this case, considerations of the larger school community support the conclusion thatrespondent's expulsion for her acknowledged drug activity was remedial in nature, rather thanpunishment, in that it removed a disruptive activity with potentially serious consequences to theoverall educational setting. Additionally, the fact that respondent feels that she is being punishedby her expulsion from school (S.J., 291 Ill. App. 3d at 706) or that others may bedeterred fromsimilar conduct in the future, does not render the sanction criminally punitive(Hudson, 118 S.Ct. 496; Ursery, 518 U.S. at 290) and bar an adjudicatory hearing on the narcoticsoffenses sincethe determination of whether a sanction constitutes punishment is not made from respondent'sperspective. Dvorak, 276 Ill. App. 3d at 549 and cases cited therein.

For these reasons, we find that the circuit court erred in granting respondent's motion todismissthe petition for adjudication of wardship. Accordingly, we reverse that order and remand thecause for further proceedings.

Reversed and remanded.

CAHILL, P.J., and LEAVITT, J., concurring.