72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 2385
A-Engrossed
Senate Bill 385
Ordered by the Senate May 29
Including Senate Amendments dated May 29
Sponsored by Senator FERRIOLI; Senator MESSERLE, Representative
KRIEGER
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 prosecution for crime that constitutes
ecosabotage may be commenced { - at any time after commission
of offense - } { + within five years after expiration of period
of limitation otherwise applicable + }. { + Defines ecosabotage
as felony offense that unlawfully interferes with specified
activities. + }Expands bases for certain civil actions under
Oregon Racketeer Influenced and Corrupt Organization Act to
include racketeering activities that constitute ecosabotage.
A BILL FOR AN ACT
Relating to ecosabotage; creating new provisions; and amending
ORS 131.125 and 166.725.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 131.125 is amended to read:
131.125. (1) A prosecution for aggravated murder, murder,
attempted murder or aggravated murder, conspiracy or solicitation
to commit aggravated murder or murder or any degree of
manslaughter may be commenced at any time after the commission of
the attempt, conspiracy or solicitation to commit aggravated
murder or murder, or the death of the person killed.
(2) A prosecution for any of the following felonies may be
commenced within six years after the commission of the crime or,
if the victim at the time of the crime was under 18 years of age,
anytime before the victim attains 24 years of age or within six
years after the offense is reported to a law enforcement agency
or other governmental agency, whichever occurs first:
(a) Criminal mistreatment in the first degree under ORS
163.205.
(b) Rape in the third degree under ORS 163.355.
(c) Rape in the second degree under ORS 163.365.
(d) Rape in the first degree under ORS 163.375.
(e) Sodomy in the third degree under ORS 163.385.
(f) Sodomy in the second degree under ORS 163.395.
(g) Sodomy in the first degree under ORS 163.405.
(h) Unlawful sexual penetration in the second degree under ORS
163.408.
(i) Unlawful sexual penetration in the first degree under ORS
163.411.
(j) Sexual abuse in the second degree under ORS 163.425.
(k) Sexual abuse in the first degree under ORS 163.427.
(L) Using a child in a display of sexual conduct under ORS
163.670.
(m) Encouraging child sexual abuse in the first degree under
ORS 163.684.
(n) Incest under ORS 163.525.
(o) Promoting prostitution under ORS 167.012.
(p) Compelling prostitution under ORS 167.017.
(3) A prosecution for any of the following misdemeanors may be
commenced within four years after the commission of the crime or,
if the victim at the time of the crime was under 18 years of age,
anytime before the victim attains 22 years of age or within four
years after the offense is reported to a law enforcement agency
or other governmental agency, whichever occurs first:
(a) Sexual abuse in the third degree under ORS 163.415.
(b) Furnishing obscene materials to minors under ORS 167.065.
(c) Sending obscene materials to minors under ORS 167.070.
(d) Exhibiting an obscene performance to a minor under ORS
167.075.
(e) Displaying obscene materials to minors under ORS 167.080.
(4) In the case of crimes described in subsection (2)(L) of
this section, the 'victim' is the child engaged in sexual
conduct. In the case of the crime described in subsection (2)(n)
of this section, the 'victim' is the party to the incest other
than the party being prosecuted. In the case of crimes described
in subsection (2)(o) and (p) of this section, the 'victim' is the
child whose acts of prostitution are promoted or compelled.
(5) { + Except as provided in subsection (7) of this
section, + } a prosecution for arson in any degree may be
commenced within six years after the commission of the crime.
(6) Except as provided in subsection (7) of this section or as
otherwise expressly provided by law, prosecutions for other
offenses must be commenced within the following periods of
limitations after their commission:
(a) For any other felony, three years.
(b) For any misdemeanor, two years.
(c) For a violation, six months.
(7) If the period prescribed in subsection { + (5) or + } (6)
of this section has expired, a prosecution nevertheless may be
commenced as follows:
(a) If the offense has as a material element either fraud or
the breach of a fiduciary obligation, prosecution may be
commenced within one year after discovery of the offense by an
aggrieved party or by a person who has a legal duty to represent
an aggrieved party and who is not a party to the offense, but in
no case shall the period of limitation otherwise applicable be
extended by more than three years;
(b) If the offense is based upon misconduct in office by a
public officer or employee, prosecution may be commenced at any
time while the defendant is in public office or employment or
within two years thereafter, but in no case shall the period of
limitation otherwise applicable be extended by more than three
years; { - or - }
(c) If the offense is an invasion of personal privacy under ORS
163.700, prosecution may be commenced within one year after
discovery of the offense by the person aggrieved by the offense,
by a person who has a legal duty to represent the person
aggrieved by the offense or by a law enforcement agency, but in
no case shall the period of limitation otherwise applicable be
extended by more than three years { + ; or
(d) If the offense constitutes ecosabotage, the prosecution may
be commenced within five years after the expiration of the period
of limitation otherwise applicable + }.
(8) Notwithstanding subsection (2) of this section, a
prosecution for rape in the first or second degree or sodomy in
the first or second degree may be commenced within 12 years after
the commission of the crime if the defendant is identified after
the period described in subsection (2) of this section on the
basis of DNA (deoxyribonucleic acid) sample comparisons.
{ + (9) For purposes of this section, an offense constitutes
ecosabotage if the offense is a felony and unlawfully interferes
with:
(a) The production of livestock, poultry, field crops, fruit,
dairy products, fur-bearing animals, timber, Christmas trees,
food fish or other animal or vegetable matter;
(b) Surface or underground mining;
(c) The protection, restoration or management of wildlife,
habitats, waterways, coastlines, farmlands or forests; or
(d) The lawful work of persons who are engaged in research,
education or advocacy related to an activity described in
paragraphs (a) to (c) of this subsection. + }
SECTION 2. ORS 166.725 is amended to read:
166.725. (1) Any circuit court may, after making due provision
for the rights of innocent persons, enjoin violations of the
provisions of ORS 166.720 (1) to (4) by issuing appropriate
orders and judgments, including, but not limited to:
(a) Ordering a divestiture by the defendant of any interest in
any enterprise, including real property.
(b) Imposing reasonable restrictions upon the future activities
or investments of any defendant, including, but not limited to,
prohibiting any defendant from engaging in the same type of
endeavor as the enterprise in which the defendant was engaged in
violation of the provisions of ORS 166.720 (1) to (4).
(c) Ordering the dissolution or reorganization of any
enterprise.
(d) Ordering the suspension or revocation of a license, permit
or prior approval granted to any enterprise by any agency of the
state.
(e) Ordering the forfeiture of the charter of a corporation
organized under the laws of this state, or the revocation of a
certificate of authority authorizing a foreign corporation to
conduct business within this state, upon finding that the board
of directors or a managerial agent acting on behalf of the
corporation, in conducting the affairs of the corporation, has
authorized or engaged in conduct in violation of ORS 166.720 (1)
to (4) and that, for the prevention of future criminal activity,
the public interest requires the charter of the corporation
forfeited and the corporation dissolved or the certificate of
authority revoked.
(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 166.715 to 166.735 is subject to
civil forfeiture to the state. The state shall dispose of all
forfeited property 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. Forfeited property shall be distributed as follows:
(a)(A) All moneys and the clear proceeds of all other property
forfeited shall be deposited with the State Treasurer to the
credit of the Common School Fund.
(B) For purposes of subparagraph (A) of this paragraph, ' clear
proceeds' means proceeds of forfeited property less costs of
maintaining and preserving property pending its sale or other
disposition, less costs of sale or disposition and, if the
Department of Justice has not otherwise recovered its costs and
expenses of the investigation and prosecution leading to the
forfeiture, less 30 percent of the remaining proceeds of the
property which is awarded to the department as reasonable
reimbursement for costs of such investigation and prosecution.
(b) Any amounts awarded to the Department of Justice pursuant
to paragraph (a) of this subsection shall be deposited in the
Criminal Justice Revolving Account in the State Treasury.
(3) Property subject to forfeiture under this section may be
seized by a police officer, as defined in ORS 133.525 (2), 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) In the event of a seizure under subsection (3) 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) The Attorney General, any district attorney or any state
agency having jurisdiction over conduct in violation of a
provision of ORS 166.715 to 166.735 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. The
Attorney General, district attorney or state agency bringing an
action under this section may be awarded, upon entry of a final
judgment or decree in favor of the state, costs of investigation
and litigation, reasonably incurred. Amounts recovered may
include costs and expenses of state and local governmental
departments and agencies incurred in connection with the
investigation or litigation.
(6)(a) Any aggrieved person may institute a proceeding under
subsection (1) of this section:
(A) If the proceeding is based upon racketeering activity for
which a criminal conviction has been obtained, any rights of
appeal have expired and the action is against the individual
convicted of the racketeering activity; or
(B) If the person is entitled to pursue a cause of action under
subsection (7)(a)(B) of this section.
(b) In such proceeding, relief shall be granted in conformity
with the principles that govern the granting of injunctive relief
from threatened loss or damage 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 proper bond against
damages for an injunction improvidently granted and a showing of
immediate danger of significant loss or damage, a temporary
restraining order and a preliminary injunction may be issued in
any such action before a final determination on the merits.
(7)(a) Any person who is injured by reason of any violation of
the provisions of ORS 166.720 (1) to (4) shall have a cause of
action for three-fold the actual damages sustained and, when
appropriate, punitive damages:
(A) If a criminal conviction for the racketeering activity that
is the basis of the violation has been obtained, any rights of
appeal have expired and the action is against the individual
convicted of the racketeering activity; { - or - }
(B) If the violation is based on racketeering activity as
defined in ORS 166.715 (6)(a)(B) to (J), (K) as it relates to
burglary and criminal trespass, (L) to (P), (S), (T) except for
claims arising under ORS 167.087, (U), (V), (X) to (Z), (AA) to
(DD), (KK), (LL) or (OO) to (VV) { + ; or
(C) If any of the predicate acts for the pattern of
racketeering activity involve an offense that constitutes
ecosabotage as described in ORS 131.125 + }.
(b) The defendant or any injured person may demand a trial by
jury in any civil action brought pursuant to this subsection.
(c) 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.
(8) An investigative agency may bring an action for civil
penalties for any violation of ORS 166.720 (1) to (4). Upon proof
of any such violation, the court shall impose a civil penalty of
not more than $250,000.
(9) A final judgment or decree rendered in favor of the state
in any criminal proceeding under ORS 166.715 to 166.735 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.
(10) The Attorney General may, upon timely application,
intervene in any civil action or proceeding brought under
subsection (6) or (7) 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.
(11)(a) Notwithstanding any other provision of law, a criminal
or civil action or proceeding under ORS 166.715 to 166.735 may be
commenced at any time within five years after the conduct in
violation of a provision of ORS 166.715 to 166.735 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 166.715 to 166.735, the running of the period of limitations
prescribed by this section with respect to any cause of action
arising under subsection (6) or (7) of this section 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.
(b) A cause of action arising under subsection (6)(a)(A) or
(7)(a)(A) of this section accrues when the criminal conviction
for the underlying activity is obtained. In addition to any
suspension of the running of the period of limitations provided
for in paragraph (a) of this subsection, the period of
limitations prescribed by paragraph (a) of this subsection is
suspended during any appeal from the criminal conviction for the
underlying activity.
(12) The application of one civil remedy under any provision of
ORS 166.715 to 166.735 shall not preclude the application of any
other remedy, civil or criminal, under ORS 166.715 to 166.735 or
any other provision of law. Civil remedies under ORS 166.715 to
166.735 are supplemental and not mutually exclusive.
(13) Notwithstanding subsection (6) or (7) of this section, a
person may not institute a proceeding under subsection (6) of
this section and does not have a cause of action under subsection
(7) of this section if the conduct that is the basis of the
proceeding or action could also be the basis of a claim of
discrimination because of sex that constitutes sexual harassment.
(14) In an action brought under the provisions of this section
by a person other than the Attorney General, a district attorney
or a state agency, the court may award reasonable attorney fees
to the prevailing party. In a civil action brought under the
provisions of this section by the Attorney General, a district
attorney or a state agency:
(a) The court may award reasonable attorney fees to the
Attorney General, district attorney or state agency if the
Attorney General, district attorney or state agency prevails in
the action; and
(b) The court may award reasonable attorney fees to a defendant
who prevails in an action under this section if the court
determines that the Attorney General, district attorney or state
agency had no objectively reasonable basis for asserting the
claim or no reasonable basis for appealing an adverse decision of
the trial court.
SECTION 3. { + (1) The amendments to ORS 131.125 by section 1
of this 2003 Act apply to offenses committed before, on or after
the effective date of this 2003 Act, but do not revive a criminal
prosecution barred by the operation of ORS 131.125 before the
effective date of this 2003 Act.
(2) The amendments to ORS 166.725 by section 2 of this 2003 Act
apply to any action commenced on or after the effective date of
this 2003 Act regardless of when the predicate acts were
committed. + }
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