Lincoln Interagency Narcotics v. Kitzhaber

• Decision Date: 19 October 2006
• Docket Number: S50904.,CA A115401.,SC S50900 (control).,CC 00C-19878.
• Citation: 341 Or. 496,145 P.3d 151
• Parties: LINCOLN INTERAGENCY NARCOTICS TEAM (LINT), a law enforcement agency created by intergovernmental agreement, Respondent on Review, and Lincoln County, a political subdivision of the State of Oregon, Plaintiff, and Animal Legal Defense Fund, Oregon Humane Society, Humane Society of the Willamette Valley, Stephan K. Otto, Sharon M. Harmon and Wayne S. Geiger, Respondents on Review, v. John KITZHABER, M.D., Governor of the State of Oregon, Bill Bradbury, Oregon Secretary of State, and the State Of Oregon, Petitioners on Review, and Ray Heslep and Sandra Adamson, Petitioners on Review.
• Court: Oregon Supreme Court

145 P.3d 151

341 Or. 496

LINCOLN INTERAGENCY NARCOTICS TEAM (LINT), a law enforcement agency created by intergovernmental agreement, Respondent on Review, and Lincoln County, a political subdivision of the State of Oregon, Plaintiff, and Animal Legal Defense Fund, Oregon Humane Society, Humane Society of the Willamette Valley, Stephan K. Otto, Sharon M. Harmon and Wayne S. Geiger, Respondents on Review, v. John KITZHABER, M.D., Governor of the State of Oregon, Bill Bradbury, Oregon Secretary of State, and the State Of Oregon, Petitioners on Review, and Ray Heslep and Sandra Adamson, Petitioners on Review.

CC 00C-19878.

CA A115401.

SC S50900 (control).

S50904.

Supreme Court of Oregon.

Argued and Submitted November 4, 2004.

Decided October 19, 2006.

On review from the Court of Appeals.^*

Philip Schradle, Special Counsel to the Attorney General, Salem, argued the cause and filed the briefs for petitioners on review John Kitzhaber, M.D., Bill Bradbury and State of Oregon. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Eli D. Stutsman, Portland, argued the cause and filed the brief for petitioners on review Ray Heslep and Sandra Adamson.

Robert E. Bovett, Newport, argued the cause and filed the brief for respondent on review LINT.

B. Carlton Grew, Portland, filed the brief for respondents on review Animal Legal Defense Fund, Oregon Humane Society, Humane Society of the Willamette Valley, Stephan K. Otto, Sharon M. Harmon, and Wayne S. Geiger.

Before CARSON, Chief Justice,^** and GILLETTE, DURHAM, DE MUNIZ,^*** BALMER, and KISTLER, Justices, and RIGGS, Justice pro tempore.^†

GILLETTE, J.

The issue in this case is whether Ballot Measure 3 (2000) (Measure 3), a constitutional amendment that the people adopted pursuant to the initiative process, actually contains two or more constitutional amendments in violation of Article XVII, section 1, of the Oregon Constitution.¹ A divided panel of the Court of Appeals held that the measure does contain two or more amendments because it makes at least two substantive changes to the constitution that are not closely related. Lincoln Interagency Narcotics Team v. Kitzhaber, 188 Or.App. 526, 72 P.3d 967 (2003). For the reasons that follow, we disagree with that conclusion and therefore reverse the decision of the Court of Appeals.

The voters adopted Measure 3 at the November 7, 2000, general election. The measure adds a new section dealing with forfeitures to Article XV of the Oregon Constitution. Measure 3 provides:

"Article XV of the Constitution of the State of Oregon is amended by a vote of the People to include the following new section:

"Section 10. The Oregon Property Protection Act of 2000. (1) This section may be known and shall be cited as the `Oregon Property Protection Act of 2000.'

"(2) Statement of principles. The People, in the exercise of the power reserved to them under the Constitution of the State of Oregon, declare that:

"(a) A basic tenet of a democratic society is that a person is presumed innocent and should not be punished until proven guilty;

"(b) The property of a person should not be forfeited in a forfeiture proceeding by government unless and until that person is convicted of a crime involving the property;

"(c) The value of property forfeited should be proportional to the specific conduct for which the owner of the property has been convicted; and

"(d) Proceeds from forfeited property should be used for treatment of drug abuse unless otherwise specified by law for another purpose.

"(3) Forfeitures prohibited without conviction. No judgment of forfeiture of property in a civil forfeiture proceeding by the State or any of its political subdivisions shall be allowed or entered until and unless the owner of the property is convicted of a crime in Oregon or another jurisdiction and the property is found by clear and convincing evidence to have been instrumental in committing or facilitating the crime or to be proceeds of that crime. The value of the property forfeited under the provisions of this subsection shall not be excessive and shall be substantially proportional to the specific conduct for which the owner of the property has been convicted. For purposes of this section, `property' means any interest in anything of value, including the whole of any lot or tract of land and tangible and intangible personal property, including currency, instruments or securities or any other kind of privilege, interest, claim or right whether due or to become due. Nothing in this section shall prohibit a person from voluntarily giving a judgment of forfeiture.

"(4) Protection of innocent property owners. In a civil forfeiture proceeding if a financial institution claiming an interest in the property demonstrates that it holds an interest, its interest shall not be subject to forfeiture.

"In a civil forfeiture proceeding if a person claiming an interest in the property, other than a financial institution or a defendant who has been charged with or convicted of a crime involving that property, demonstrates that the person has an interest in the property, that person's interest shall not be subject to forfeiture unless:

"(a) The forfeiting agency proves by clear and convincing evidence that the person took the property or the interest with the intent to defeat the forfeiture; or

"(b) A conviction under subsection (3) is later obtained against the person.

"(5) Exception for unclaimed property and contraband. Notwithstanding the provisions of subsection (3) of this section, if, following notice to all persons known to have an interest or who may have an interest, no person claims an interest in the seized property or if the property is contraband, a judgment of forfeiture may be allowed and entered without a criminal conviction. For purposes of this subsection, `contraband' means personal property, articles or things, including but not limited to controlled substances or drug paraphernalia, that a person is prohibited by Oregon statute or local ordinance from producing, obtaining or possessing.

"(6) Law enforcement seizures unaffected. Nothing in this section shall be construed to affect the temporary seizure of property for evidentiary, forfeiture, or protective purposes, or to alter the power of the Governor to remit fines or forfeitures under Article V, Section 14, of this Constitution.

"(7) Disposition of property and proceeds to drug treatment. Any sale of forfeited property shall be conducted in a commercially reasonable manner. Property or proceeds forfeited under subsections (3), (5), or (8) of this section shall not be used for law enforcement purposes but shall be distributed or applied in the following order:

"(a) To the satisfaction of any foreclosed liens, security interests and contracts in the order of their priority;

"(b) To the State or any of its political subdivisions for actual and reasonable expenses related to the costs of the forfeiture proceeding, including attorney fees, storage maintenance, management, and disposition of the property incurred in connection with the sale of any forfeited property in an amount not to exceed twenty-five percent of the total proceeds in any single forfeiture;

"(c) To the State or any of its political subdivisions to be used exclusively for drug treatment, unless another disposition is specially provided by law.

"(8) State and federal sharing. The State of Oregon or any of its political subdivisions shall take all necessary steps to obtain shared property or proceeds from the United States Department of Justice resulting from a forfeiture. Any property or proceeds received from the United States Department of Justice by the State of Oregon or any of its political subdivisions shall be applied as provided in subsection (7) of this section.

"(9) Restrictions on State transfers. Neither the State of Oregon, its political subdivisions, nor any forfeiting agency shall transfer forfeiture proceedings to the federal government unless a state court has affirmatively found that:

"(a) The activity giving rise to the forfeiture is interstate in nature and sufficiently complex to justify the transfer;

"(b) The seized property may only be forfeited under federal law; or

"(c) Pursuing forfeiture under state law would unduly burden the state forfeiting agencies.

"(10) Penalty for violations. Any person acting under color of law, official title or position who takes any action intending to conceal, transfer, withhold, retain, divert or otherwise prevent any proceeds, conveyances, real property, or any things of value forfeited under the law of this State or the United States from being applied, deposited or used in accordance with subsections (7), (8) or (9) of this section shall be subject to a civil penalty in an amount treble the value of the forfeited property concealed, transferred, withheld, retained or diverted. Nothing in this subsection shall be construed to impair judicial immunity if otherwise applicable.

"(11) Reporting requirement. All forfeiting agencies shall report the nature and disposition of all property and proceeds seized for forfeiture or forfeited to a State asset forfeiture oversight committee that is independent of any forfeiting agency. The asset forfeiture oversight committee shall generate and make available to the public an annual report of the information collected. The asset forfeiture oversight committee shall also make recommendations to ensure that asset forfeiture proceedings are handled in a manner that is fair to innocent property owners and interest holders.

"(12) Severability. If any part of this section or its application to any person or circumstance is held to be invalid for any reason, then the remaining parts or applications to any persons or circumstances shall not be affected but shall remain in full force and effect."

(Emphasis in original).

Measure 3 follows the unfortunate practice, sometimes...