Lint v. Kitzhaber

• Decision Date: 09 July 2003
• Parties: LINCOLN INTERAGENCY NARCOTICS TEAM (LINT), a law enforcement agency created by intergovernmental agreement, Appellant, 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, Intervenors-Appellants, v. John D. KITZHABER, M.D., Governor of the State of Oregon, Bill Bradbury, Oregon Secretary of State, and the State of Oregon, Respondents, and Ray Heslep and Sandra Adamson, Intervenors-Respondents.
• Court: Oregon Court of Appeals

72 P.3d 967

188 Or. App. 526

188 Or. 526

LINCOLN INTERAGENCY NARCOTICS TEAM (LINT), a law enforcement agency created by intergovernmental agreement, Appellant, 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, Intervenors-Appellants, v. John D. KITZHABER, M.D., Governor of the State of Oregon, Bill Bradbury, Oregon Secretary of State, and the State of Oregon, Respondents, and Ray Heslep and Sandra Adamson, Intervenors-Respondents.

00C-19878; A115401.

Court of Appeals of Oregon.

Argued and Submitted January 27, 2003.

Decided July 9, 2003.

Rob Bovett argued the cause and filed the briefs for appellant Lincoln Interagency Narcotics Team.

B. Carlton Grew, Salem, argued the cause and filed the briefs for intervenors-appellants Animal Legal Defense Fund, Oregon Humane Society, Humane Society of the Willamette Valley, Stephan K. Otto, Sharon M. Harmon, and Wayne S. Geiger.

Mary H. Williams, Solicitor General, argued the cause for respondents John D. Kitzhaber, M.D., Bill Bradbury, and State of Oregon. With her on the brief was Hardy Myers, Attorney General.

Eli D. Stutsman, Portland, argued the cause and filed the brief for intervenors-respondents Ray Heslep and Sandra Adamson.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

BREWER, J.

Plaintiffs brought this action under the Uniform Declaratory Judgments Act, ORS 28.010—28.160, challenging the constitutionality of Ballot Measure 3 (2000) (Measure 3 or Oregon Property Protection Act).¹ Measure 3 added section 10 to Article XV of the Oregon Constitution. Section 10 consists of 12 subsections. Plaintiffs argued that Measure 3 contains two or more constitutional amendments that should have been voted on separately under Article XVII, section 1, of the Oregon Constitution.² Plaintiffs also argued that Measure 3 addresses more than one subject, in violation of Article IV, section 1(2)(d), of the Oregon Constitution.³

The circuit court entered judgment for defendants and upheld the constitutionality of Measure 3 against both challenges. For the reasons that follow, we reverse the judgment of the circuit court.

Plaintiff Lincoln County is a political subdivision of the State of Oregon, and plaintiff Lincoln Interagency Narcotics Team is a law enforcement agency created by intergovernmental agreement under ORS chapter 190. Both plaintiffs are subject to rights and responsibilities under Measure 3. Plaintiff intervenors are three individuals and three private organizations that are involved in various ways with animal protection issues.⁴ Defendants are the former Governor and the Secretary of State of Oregon. Defendant intervenors are the chief petitioners for Measure 3. Because this action presented only legal issues concerning the constitutionality of Measure 3, the parties filed cross-motions for summary judgment. After the trial court entered summary judgment for defendants, plaintiffs appealed to this court.

We begin by describing the history and substance of Measure 3. The voters adopted the measure on November 7, 2000. 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

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