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 __, Oregon Laws 2001 (Enrolled Senate Bill 114).

 
 
 
     71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 3042
 
                           B-Engrossed
 
                         House Bill 3931
                  Ordered by the Senate June 15
 Including House Amendments dated April 27 and Senate Amendments
                          dated June 15
 
Sponsored by COMMITTEE ON JUDICIARY
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
 
  Provides that illegally held archaeological objects, funerary
objects, human remains, sacred objects and objects of cultural
patrimony are contraband. Provides procedures for seizure and
distribution of such objects.
  Allows Indian tribe to seek civil forfeiture of proceeds and
instrumentalities of violations of laws relating to
archaeological objects, funerary objects, human remains, sacred
objects and objects of cultural patrimony. Provides that civil
forfeiture proceeding by Attorney General or district attorney be
conducted in manner provided by law for forfeitures arising out
of drug-related criminal activities.
 
                        A BILL FOR AN ACT
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 __, 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 ___, Oregon Laws 2001 (Enrolled Senate Bill 114)
(amending ORS 659.036), is repealed and ORS 659.036, as amended
by section 51, chapter ___, 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 ___, 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 ___, 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 ___, Oregon Laws 2001 (Enrolled House
Bill 2352). + }
  SECTION 13.  { + If House Bill 2352 becomes law, section 10,
chapter ___, Oregon Laws 2001 (Enrolled Senate Bill 114)
(amending ORS 659.121), is repealed. + }
  SECTION 14.  { + The repeal of section 10, chapter ___, Oregon
Laws 2001 (Enrolled Senate Bill 114), by section 13 of this 2001
Act becomes operative on the effective date of chapter ___,
Oregon Laws 2001 (Enrolled House Bill 2352). + }
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