State v. James

• Decision Date: 14 April 1999
• Citation: 978 P.2d 415,159 Or.App. 502
• Parties: STATE of Oregon, Appellant, v. Robert J. JAMES, Respondent. (9703-32435; CA A97659)
• Court: Oregon Court of Appeals

Page 415

978 P.2d 415

159 Or.App. 502

STATE of Oregon, Appellant, v. Robert J. JAMES, Respondent.

(9703-32435; CA A97659)

Court of Appeals of Oregon.

Argued and Submitted Aug. 27, 1998.

Decided April 14, 1999.

Robert M. Atkinson, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General. With him on the reply brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Eric R. Johansen, Deputy Public Defender, argued the cause for respondent. With him on the brief were Sally L. Avera, Public Defender, and Kimi Nam, Deputy Public Defender.

Chin See Ming and Perkins Coie LLP filed a brief amicus curiae for ACLU Foundation of Oregon, Inc.

Before De MUNIZ, Presiding Judge, and DEITS, Chief Judge, and HASELTON, Judge.

De MUNIZ, P.J.

Defendant was charged with possession of a controlled substance, ORS 475.992(4), and the trial court dismissed the case before trial on the ground that defendant had been put in jeopardy twice for the same offense, in violation of Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution. The state appeals from the order of dismissal. We reverse and remand.

In March 1997, defendant was arrested for possession of a controlled substance within an area of the City of Portland that had been designated by ordinance as a "drug free zone." Portland City Code (PCC) 14.100.070. As a result of being arrested for a drug crime in a drug free zone, defendant was issued a 90-day exclusion order by the arresting officer. After defendant was indicted for the crime of possession of a controlled substance, he moved to dismiss the charge on double jeopardy grounds, contending that the exclusion was "punishment" for purposes of double jeopardy analysis and that he could not be subjected to multiple punishments for the same offense in separate proceedings. The trial court agreed and dismissed the case. The state appeals, arguing that the trial court erred in dismissing the case on double jeopardy grounds.

In the usual course, we would address all state constitutional issues before turning to the federal constitutional issue. State v. Kennedy, 295 Or. 260, 261, 666 P.2d 1316 (1983). In the present case, however, the trial court reached its conclusion under the jeopardy provisions of both the state and federal constitutions, but applied only federal law, stating that, in several cases, this court had proceeded on the assumption that state and federal double jeopardy analyses were the same. See Umatilla County v. $18,005 in U.S. Currency, 142 Or.App. 513, 921 P.2d 426, rev. den. 324 Or. 395, 927 P.2d 600 (1996); City of Lake Oswego v. $23,232.23, 140 Or.App. 520, 916 P.2d 865, rev. den. 324 Or. 322, 927 P.2d 598 (1996). On appeal, defendant renews the arguments made below but makes a new argument under the state constitution as an alternative ground for affirmance of the trial court's decision. Under these circumstances, we first address the state/federal combined analysis on which the court based its decision before turning to defendant's alternative argument under a different state constitutional analysis.

The background and content of the drug free zone exclusion ordinances is pertinent to our inquiry. The drug free zones in Portland are designated by the City Council based on the number of drug arrests made in an area in the previous 12 months and are reevaluated every few years. PCC 14.100.010-.020. If a person is arrested for a drug crime, not occurring in a private residence, within a designated drug free zone, the person is issued a 90-day civil exclusion order. If the person is later convicted of the drug crime, the person is issued an additional one-year exclusion order. PCC 14.100.030. ¹ The exclusion pertains to all drug free zones in the city. PCC 14.100.050. An individual issued an exclusion order under these ordinances may file an administrative appeal within seven days of the issuance of the order, and the exclusion does not go into effect during the pendency of the appeal. PCC 14.100.060. At the hearing, the city must show by a preponderance of the evidence that the exclusion is based on the commission of one of the listed drug crimes within a drug free zone. Id. At the hearing, the city may make a prima facie case that the drug crime was committed either by showing that a court having jurisdiction made a determination that probable cause existed for the arrest or by showing that the arrested person was indicted for the crime. Id. Persons excluded from drug free zones may obtain variances from the police to enter the zones if they live there, if they are employed there, or if they require access to service providers there. Id. Variances for other purposes are available as well. Id.

In enacting the ordinances described above, the City Council made numerous findings regarding the need for such ordinances: that the designated zones had a significantly higher incidence of drug trafficking than other areas in the city; that the drug activity contributed to the degradation of the areas and adversely affected the quality of life for the areas' residents, businesses and visitors; that people arrested for drug crimes frequently resume their drug activities in the same location either because it is lucrative or because it is attractive for using controlled substances; that the city had a compelling interest in restoring the quality of life and protecting the health, safety and welfare of citizens using the public ways in the designated zones, and in allowing citizens to use facilities in the designated zones without interference arising from drug activity; that arrest and prosecution for drug crimes had not proven adequate to control the drug activities in the designated zones; and that the city's health, safety and welfare would best be served by temporary exclusion of people arrested for drug crimes from the designated zones. Portland City Ord. No. 170913.

Defendant moved to dismiss the criminal charge against him on the ground that his prosecution would violate the double jeopardy provisions of the state and federal constitutions. ² See generally ORS 135.470 (dismissal based on former jeopardy). Defendant did not challenge the constitutionality of the exclusion ordinances themselves. He argued that the exclusions were "punishment" for purposes of double jeopardy analysis and that prosecution based on the same conduct that the exclusion had been based on violated the double jeopardy provisions of the state and federal constitutions.

The trial court agreed with defendant. Quoting United States v. Halper, 490 U.S. 435, 446, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), the court found that the city intended the ordinances to be remedial in nature but that the civil sanction of exclusion nonetheless was "so extreme and so divorced from the government's damages and expenses as to constitute punishment" for purposes of double jeopardy analysis. The court's primary reason for determining that the exclusions were punitive was the geographical locations of the zones. Although the zones are relatively small, covering less than two percent of the city, they cover a great deal of the downtown area of Portland, and the court was concerned that exclusion from those zones effectively prohibited free movement through the city. The court therefore determined that, because the 90-day exclusions were punitive, criminal prosecution for the underlying drug crime that triggered the exclusion put defendant in jeopardy twice for the same offense.

On appeal, the state argues that the trial court's analysis is flawed in its expansive reading of Halper. The state points out that the United States Supreme Court has, in fact, expressly disavowed the Halper analysis since the trial court decided the present case. Defendant argues that the trial court nonetheless reached the correct conclusion, even applying the more recent analyses of the United States Supreme Court. ³

We turn first to the Halper analysis, on which the trial court relied, and to the later United States Supreme Court case law qualifying and eventually disavowing it. In Halper, the Court considered whether a civil penalty for false claims for Medicare reimbursements was "punishment" for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. 490 U.S. at 437, 109 S.Ct. 1892. Halper was criminally prosecuted for fraud, and the government also brought a separate action under the False Claims Act, which allowed for civil penalties of $2,000 for each of 65 different false claims, for a total of $130,000. Id. at 438, 109 S.Ct. 1892. The Court concluded that one who had been criminally prosecuted could not be "subjected to civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as deterrent or retribution." Id. at 449, 109 S.Ct. 1892. The court then focused on the disparity between the actual damages from the fraud and the penalty at issue, concluding that the sanction was sufficiently disproportionate to constitute a second punishment in violation of the Fifth Amendment. Id. at 452, 109 S.Ct. 1892.

Later, in United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), the Court addressed whether civil forfeiture of property used in connection with a crime constituted "punishment" for purposes of double jeopardy analysis. In two separate cases out of different circuits, consolidated for purposes of Supreme Court review, the lower courts, relying on Halper and Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (concerning excessive fines under the Eighth Amendment), had held that any civil forfeiture of proceeds or assets used to facilitate crime under certain federal statutes constituted "punishment" for purposes of Fifth Amendment double...