Chapter 739 Oregon Laws 2001

AN ACT

HB 3931

Relating to judicial proceedings; creating new provisions; amending ORS 358.925, 358.935, 358.955 and 659.036; and repealing ORS 358.930 and sections 9 and 10, chapter 588, Oregon Laws 2001 (Enrolled Senate Bill 114).

Be It Enacted by the People of the State of Oregon:

SECTION 1. Sections 2 and 3 of this 2001 Act are added to and made a part of ORS 358.905 to 358.955.

SECTION 2. (1) Archaeological objects, funerary objects, human remains, sacred objects and objects of cultural patrimony that are held in violation of the provisions of ORS 358.920 or 390.235 are contraband. A police officer shall seize all items declared to be contraband under the provisions of this section if the police officer has reasonable cause to believe the items are held in violation of the provisions of ORS 358.920 or 390.235.

(2) A law enforcement agency employing a police officer who seizes contraband items under this section shall give notice of the seizure to the district attorney for the county in which the items are seized. The district attorney shall promptly investigate to determine whether any person claims the items seized.

(3) If any person claims items seized under this section, the district attorney shall file a petition with the circuit court for the county for an expedited hearing on the claim. The court shall conduct a hearing for the sole purposes of determining:

(a) Whether the items are archaeological objects, funerary objects, human remains, sacred objects or objects of cultural patrimony;

(b) Whether any arrowheads seized under this section were collected in compliance with ORS 358.920 (1)(b); and

(c) Whether a person claiming an item other than an arrowhead can lawfully possess the item under ORS 358.905 to 358.955.

(4) If items seized under this section are not claimed by any person, or the circuit court determines that the items may not be returned to the claimant under the provisions of subsection (3) of this section:

(a) Archaeological objects shall be delivered to the Oregon State Museum of Anthropology and curated as described in ORS 358.920 (4)(a).

(b) Funerary objects, human remains, sacred objects and objects of cultural patrimony shall be returned to the appropriate tribe for reinterment or other disposition as provided in ORS 358.940.

SECTION 3. (1) All instrumentalities or proceeds from the violation of the provisions of ORS 358.910 to 358.955 or 390.235 are subject to civil forfeiture to the appropriate Indian tribe, as designated by the Commission on Indian Services. All forfeitures under this section shall be made with due provision for the rights of innocent persons.

(2) Property subject to forfeiture under this section may be seized by a police officer upon court process. Seizure without process may be made if:

(a) The seizure is incident to a lawful arrest or search or an inspection under an administrative inspection warrant; or

(b) The property subject to seizure has been the subject of a prior judgment in favor of the state.

(3) Any police officer seizing property under this section shall promptly contact the Commission on Indian Services. The commission shall designate the appropriate tribe, and give notice to the tribe of the seizure. A civil forfeiture proceeding under ORS 358.925 may not be commenced if the tribe gives written notice that the tribe intends to seek forfeiture under this section. Notice by the tribe must be given within 30 days after the commission gives notice to the tribe of the seizure.

(4) Property seized under this section shall be held by the police agency that employs the police officer pending judgment in an action under this section. The property shall not be subject to replevin. Pending judgment in the action, the police agency may:

(a) Place the property under seal;

(b) Remove the property to a place designated by the court; or

(c) Require another agency authorized by law to take custody of the property and remove it to an appropriate location.

(5) In any action brought under this section, the circuit court shall give priority to the hearing and determination. Pending final determination, the circuit court may at any time enter such injunctions, prohibitions or restraining orders, or take such actions, including the acceptance of satisfactory performance bonds, as the court may deem proper.

(6) The defendant or the tribe may demand a trial by jury in any civil action brought under this section.

(7) A final judgment or decree rendered in favor of the state in any criminal proceeding for a violation of ORS 358.920 to 358.955 or 390.235 shall estop the defendant in any action under this section as to all matters as to which such judgment or decree would be an estoppel as between the state and the defendant.

SECTION 4. ORS 358.925 is amended to read:

358.925. [(1) All archaeological objects or proceeds from the sale of archaeological objects in the possession of any person in violation of the provisions of ORS 358.905, 358.910, 358.920 to 358.955 or 390.235 shall be seized by any police officer.]

[(2) All property, real or personal, including money, used in the course of, derived from or realized through conduct in violation of a provision of ORS 358.905, 358.910, 358.920 to 358.955 or 390.235 is subject to civil forfeiture to the state or appropriate Indian tribe. The state shall dispose of all forfeited property not having archaeological significance as soon as commercially feasible. If property is not exercisable or transferable for value by the state, it shall expire. All forfeitures or dispositions under this section shall be made with due provision for the rights of innocent persons.]

(1) Violation of ORS 358.920 or 390.235 is prohibited conduct for the purposes of ORS chapter 475A. Proceeds and instrumentalities of a violation of ORS 358.920 or 390.235 may be seized and forfeited in the manner provided by ORS chapter 475A. An action for civil forfeiture under this section may be commenced by the Attorney General or by the district attorney for the county in which any of the property is seized.

[(3)] (2) Property subject to forfeiture under this section may be seized by a police officer upon court process. Seizure without process may be made if:

(a) The seizure is incident to a lawful arrest or search or an inspection under an administrative inspection warrant; or

(b) The property subject to seizure has been the subject of a prior judgment in favor of the state [in a forfeiture proceeding based upon this section].

[(4)] (3) In the event of a seizure under subsection (1) of this section, a forfeiture proceeding shall be instituted promptly. Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the police officer making the seizure, subject only to the order of the court. When property is seized under this section, pending forfeiture and final disposition, the police officer may:

(a) Place the property under seal;

(b) Remove the property to a place designated by the court; or

(c) Require another agency authorized by law to take custody of the property and remove it to an appropriate location.

[(5)] (4) [The Attorney General, any district attorney or any state agency having jurisdiction over conduct in violation of a provision of ORS 358.905, 358.910, 358.920 to 358.955 and 390.235 and an appropriate Indian tribe may institute civil proceedings under this section.] In any action brought under this section, the circuit court shall give priority to the hearing and determination. Pending final determination, the circuit court may at any time enter such injunctions, prohibitions or restraining orders, or take such actions[, including the acceptance of satisfactory performance bonds,] as the court may deem proper.

[(6)(a) The defendant or any injured person may demand a trial by jury in any civil action brought pursuant to this section.]

[(b) Any injured person shall have a right or claim to forfeited property or to the proceeds derived therefrom superior to any right or claim the state has in the same property or proceeds, except for human remains, funerary objects, sacred objects or objects of cultural patrimony.]

[(7)] (5) A final judgment or decree rendered in favor of the state in any criminal proceeding for a violation of ORS [358.905, 358.910,] 358.920 [to 358.955 and] or 390.235 shall estop the defendant in any subsequent civil action or proceeding brought by the state or any other person as to all matters as to which such judgment or decree would be an estoppel as between the state and the defendant.

(6) Notwithstanding any provision of ORS chapter 475A, after entry of a judgment of forfeiture in an action under this section, a forfeiting agency shall deliver the forfeited property and proceeds of the forfeited property to the Commission on Indian Services after making any deductions allowed for costs incurred by the forfeiting agency. The commission shall deliver the property and proceeds to the appropriate Indian tribe, as designated by the commission. If there is no appropriate Indian tribe, the commission shall use the property and proceeds for Indian historic preservation.

[(8) Notwithstanding any other provision of law, a criminal or civil action or proceeding for a violation of ORS 358.905, 358.910, 358.920 to 358.955 and 390.235 may be commenced at any time within five years after the conduct in violation of a provision of ORS 358.905, 358.910, 358.920 to 358.955 and 390.235 terminates or the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought, or intervened in, to punish, prevent or restrain any violation of the provisions of ORS 358.905, 358.910, 358.920 to 358.955 and 390.235, the running of the period of limitations prescribed by this section with respect to any cause of action arising under ORS 358.955 which is based in whole or in part upon any matter complained of in any such prosecution, action or proceeding shall be suspended during the pendency of such prosecution, action or proceeding and for two years following its termination.]

[(9) The application of one civil remedy under any provision of ORS 358.905, 358.910, 358.920 to 358.955 and 390.235 shall not preclude the application of any other remedy, civil or criminal, under ORS 192.005, 192.501 to 192.505, 273.990, 358.905 to 358.955 and 390.235 or any other provision of law. Civil remedies under ORS 192.005, 192.501 to 192.505, 273.990, 358.905 to 358.955 and 390.235 are supplemental and not mutually exclusive.]

SECTION 5. ORS 358.935 is amended to read:

358.935. [(1)] Any [archaeological object] instrumentality or proceeds seized under the provisions of ORS 358.925 shall be preserved and retained. If any instrumentality or proceeds are not forfeited under ORS 358.925 or section 3 of this 2001 Act, at the time the court sentences the defendant in the criminal prosecution for violation of the archaeology laws[,] the court may order that any [archaeological object] instrumentality or proceeds from [the sale of an archaeological object seized under ORS 358.925 shall be forfeited] a violation of ORS 358.920 or 390.235 be forfeited. [Any archaeological object seized under the provisions of ORS 358.905 to 358.955 and 390.235 shall be retained by the state and deposited in the Oregon State Museum of Anthropology.]

[(2) If the archaeological objects or proceeds seized under ORS 358.925 are not subsequently forfeited, the State Historic Preservation Office shall return or arrange for the return of the objects or proceeds, as the case may be, to the person from whom they were seized.]

SECTION 6. ORS 358.955 is amended to read:

358.955. (1) Any person or the Attorney General, on behalf of the state, may institute a civil proceeding against a person who violates the provisions of ORS 358.920, 358.945, 358.950 or 390.235. In such proceeding, relief shall be granted in conformity with the principles that govern the granting of injunctive relief in other civil cases, except that no showing of special or irreparable damage to the person shall have to be made. Upon the execution of the proper bond against damages for an injunction improvidently granted and a showing of immediate danger of significant loss or damage, a temporary restraining order or a preliminary injunction may be issued in any such action before a final determination on the merits.

(2) In any proceeding brought under this section, the court may allow the prevailing party to recover costs, expert witness fees, and reasonable attorney fees at trial and upon appeal.

(3) The Attorney General may, upon timely application, intervene in any civil action or proceeding brought under subsection (1) of this section if the Attorney General certifies that in the opinion of the Attorney General, the action or proceeding is of general public importance. In such action or proceeding, the state shall be entitled to the same relief as if the Attorney General instituted the action or proceeding.

[(4) The application of one civil remedy under any provision of ORS 192.005, 192.501 to 192.505, 273.990, 358.905 to 358.955 and 390.235 shall not preclude the application of any other remedy under ORS 192.005, 192.501 to 192.505, 273.990, 358.905 to 358.955 and 390.235 or any other provision of statutory or common law. Civil remedies under ORS 192.005, 192.501 to 192.505, 273.990, 358.905 to 358.955 and 390.235 are supplemental and not mutually exclusive.]

SECTION 7. Sections 8 and 9 of this 2001 Act are added to and made a part of ORS 358.905 to 358.955.

SECTION 8. The application of one civil remedy under any provision of ORS 358.905 to 358.955 does not preclude the application of any other remedy under ORS 358.905 to 358.955 or under any other provision of statutory or common law.

SECTION 9. Notwithstanding any other provision of law, a criminal or civil action or proceeding for a violation of ORS 358.920 to 358.955 and 390.235 may be commenced at any time within five years after the conduct in violation of a provision of ORS 358.920 to 358.955 and 390.235 terminates or the cause of action accrues. If a criminal prosecution, civil action or other proceeding is brought to punish, prevent or restrain any violation of the provisions of ORS 358.920 to 358.955 or 390.235, the running of the period of limitations prescribed by this section with respect to any cause of action arising under ORS 358.955 that is based in whole or in part upon any matter complained of in any such prosecution, action or proceeding shall be suspended during the pendency of such prosecution, action or proceeding and for two years following its termination.

SECTION 10. ORS 358.930 is repealed.

SECTION 11. If House Bill 2352 becomes law, section 9, chapter 588, Oregon Laws 2001 (Enrolled Senate Bill 114) (amending ORS 659.036), is repealed and ORS 659.036, as amended by section 51, chapter 621, Oregon Laws 2001 (Enrolled House Bill 2352), is amended to read:

659.036. (1) It is an unlawful employment practice for an employer to seek to obtain, to obtain[,] or to use genetic information[, as defined in ORS 659.700,] of an employee or a prospective employee, or of a blood relative of the employee or prospective employee, to distinguish between or discriminate against or restrict any right or benefit otherwise due or available to an employee or a prospective employee. [This section does not prohibit an employer from seeking, obtaining or using genetic information with specific authorization of the employee or prospective employee solely to determine a bona fide occupational qualification, as may be defined by rules adopted by the Commissioner of the Bureau of Labor and Industries.]

(2) An employee or prospective employee may bring a civil action [may be brought] under section 15, chapter 621, Oregon Laws 2001 (Enrolled House Bill 2352), [of this 2001 Act] for a violation of this section.

(3) For purposes of this section, “blood relative,” “genetic information” and “obtain genetic information” have the meanings given those terms in ORS 659.700.

SECTION 12. The repeal of section 9, chapter 588, Oregon Laws 2001 (Enrolled Senate Bill 114), and the amendments to ORS 659.036 by section 11 of this 2001 Act become operative on the effective date of chapter 621, Oregon Laws 2001 (Enrolled House Bill 2352).

SECTION 13. If House Bill 2352 becomes law, section 10, chapter 588, Oregon Laws 2001 (Enrolled Senate Bill 114) (amending ORS 659.121), is repealed.

SECTION 14. The repeal of section 10, chapter 588, Oregon Laws 2001 (Enrolled Senate Bill 114), by section 13 of this 2001 Act becomes operative on the effective date of chapter 621, Oregon Laws 2001 (Enrolled House Bill 2352).

Approved by the Governor July 3, 2001

Filed in the office of Secretary of State July 3, 2001

Effective date January 1, 2002

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