Senate Joint Resolution 18
PARAGRAPH
1. Section 10, Article XV of the Constitution of the State of
Sec.
10. The
(2) Statement of
principles. The People, in the exercise of the power reserved to them under the
Constitution of the State of
(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 generally 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] Except
as provided in this section, a judgment of forfeiture of property in a
civil forfeiture proceeding by the State or any of its political subdivisions [shall be allowed or] may not be entered
until and unless the [owner of]
person claiming 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.]:
(a)
Constitutes proceeds of the crime for which the claimant has been convicted;
(b)
Was instrumental in committing or facilitating the crime for which the claimant
has been convicted;
(c) Constitutes proceeds
of one or more other crimes similar to the crime for which the claimant was
convicted; or
(d) Was instrumental in
committing or facilitating one or more other crimes similar to the crime for
which the claimant was convicted.
(4) Forfeiture based on
similar crimes. Property may be forfeited under paragraph (c) or (d) of
subsection (3) of this section only if the claimant is notified in writing of
the other crime or crimes claimed to be similar to the crime for which the
claimant was convicted. The notice must be given at the time the claimant is
given notice of the seizure of the property for forfeiture, and the claimant
must have an opportunity to challenge the seizure and forfeiture of the
property.
(5) Forfeiture without
conviction of claimant. The property of a claimant who has not been convicted
of a crime may be forfeited in a civil forfeiture proceeding only if the
claimant consents to the forfeiture of the property or the forfeiting agency
proves the property constitutes proceeds or an instrumentality of crime
committed by another person as described in subsection (3) of this section and:
(a) The claimant took
the property with the intent to defeat forfeiture of the property;
(b) The claimant knew or
should have known that the property constituted proceeds or an instrumentality
of criminal conduct; or
(c) The claimant
acquiesced in the criminal conduct. A person shall be considered to have
acquiesced in criminal conduct if the person knew of the criminal conduct and
failed to take reasonable action under the circumstances to terminate the
criminal conduct or prevent use of the property to commit or facilitate the
criminal conduct.
(6) Standard of proof.
(a) Except as provided in paragraph (b) of this subsection, if the property to
be forfeited in a civil forfeiture action is personal property, the forfeiting
agency must prove the elements specified in subsection (3) or (5) of this
section by a preponderance of the evidence. If the property to be forfeited in
a civil forfeiture action is real property, the forfeiting agency must prove
the elements specified in subsection (3) or (5) of this section by clear and
convincing evidence.
(b) If a forfeiting
agency establishes in a forfeiture proceeding that cash, weapons or negotiable
instruments were found in close proximity to controlled substances or to
instrumentalities of criminal conduct, the burden is on any person claiming the
cash, weapons or negotiable instruments to prove by a preponderance of the
evidence that the cash, weapons or negotiable instruments are not proceeds of
criminal conduct or an instrumentality of criminal conduct.
(7) Value of property
forfeited. The value of the
property forfeited under the provisions of this [subsection shall] section may 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)] (8) [Protection of innocent property owners.] Financial institutions. In a civil forfeiture proceeding,
if a financial institution claiming an interest in the property demonstrates
that it holds an interest, [its]
the financial institution’s interest [shall]
is 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)] (9) 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
(10) Exception for
forfeiture of animals. This section does not apply to the forfeiture of animals
that have been abused, neglected or abandoned.
[(6)] (11) 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)] (12) 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]
in a civil forfeiture proceeding 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]; and
(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
[(9)] (13) Restrictions on State
transfers. Neither the State of
(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)] (14) 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]
moneys, 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)] the requirements 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)] (15) 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 oversight committee
shall generate and make available to the public an annual report of the
information collected. The asset forfeiture oversight committee shall also make
recommendations to ensure that asset forfeiture proceedings are handled in a
manner that is fair to innocent property owners and interest holders.
[(12)] (16) Severability.
If any part of this section or its application to any person or circumstance is
held to be invalid for any reason, then the remaining parts or applications to
any persons or circumstances shall not be affected but shall remain in full
force and effect.
PARAGRAPH
2. The amendment proposed by this resolution shall be
submitted to the people for their approval or rejection at a special election
held throughout this state on the same date as the next primary election.
Filed in the office of Secretary of State June 25, 2007
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