74th OREGON LEGISLATIVE ASSEMBLY--2007 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 2105
B-Engrossed
Senate Joint Resolution 18
Ordered by the House June 15
Including Senate Amendments dated May 9 and House Amendments
dated
June 15
Sponsored by Senator PROZANSKI
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.
Proposes amendment to Oregon Constitution modifying provisions
governing civil forfeitures. Allows civil forfeiture of property
without conviction of crime under certain circumstances.
Specifies standards of proof in civil forfeiture proceedings.
Allows use of forfeited property for law enforcement purposes.
Refers proposed amendment to people for their approval or
rejection at { - next regular general - } { + special
election held on same date as next primary + } election.
JOINT RESOLUTION
Be It Resolved by the Legislative Assembly of the State of
Oregon:
PARAGRAPH 1. Section 10, Article XV of the Constitution of the
State of Oregon, is amended to read:
{ + Sec. 10. + } The Oregon Property Protection Act of 2000.
(1) This section may be known and shall be cited as the 'Oregon
Property Protection Act of 2000. '
(2) Statement of principles. The People, in the exercise of the
power reserved to them under the Constitution of the State of
Oregon, declare that:
(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 Oregon statute
or local ordinance from producing, obtaining or possessing.
{ + (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 Oregon or any
of its political subdivisions shall take all necessary steps to
obtain shared property or proceeds from the United States
Department of Justice resulting from a forfeiture. Any property
or proceeds received from the United States Department of Justice
by the State of Oregon or any of its political subdivisions shall
be applied as provided in subsection (7) of this section. - }
{ - (9) - } { + (13) + } Restrictions on State transfers.
Neither the State of Oregon, its political subdivisions, nor any
forfeiting agency shall transfer forfeiture proceedings to the
federal government unless a state court has affirmatively found
that:
(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. + }
----------