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October 20, 2006 - Statesman Journal (OR)

Divided OR Supreme Court Upholds Restrictions On Police Seizures

Compromise Bill From Legislature Nullified by Ruling

By Peter Wong, Statesman Journal

Return to Drug War News: Don't Miss Archive

A divided Oregon Supreme Court decided Thursday to uphold restrictions that voters approved on police seizures of property and cash connected with illegal activity.

Voters barred police agencies from using civil lawsuits to seize and sell property unless it was tied to a criminal conviction of the property owner. The measure also directed proceeds from such sales to drug treatment rather than police operations.

Police initiated 1,526 seizures in 2000, but after the measure passed, only 389 in 2001.

A legal challenge was filed in 2001 by the Lincoln Interagency Narcotics Team. Marion County Judge Pamela Abernethy upheld the measure in 2001, but a divided Oregon Court of Appeals overturned it in 2003. The high court, by a 4-3 vote, upheld Abernethy.

"We always knew it was not an easy case," said Rob Bovett, the legal counsel for the narcotics team based in Newport. "But I was not expecting the Supreme Court to be as divided as badly as they were. Of course, we are disappointed."

A court decided that the 2000 measure did not violate the constitutional ban on multiple amendments contained in a single measure unless the changes are "closely related." The court struck down four other voter-approved measures in the past eight years, based on the ban.

"The debate is over about what the constitutional law in Oregon should be on forfeitures," said Geoff Sugerman of Silverton, a political consultant who directed the 2000 campaign.

Justice Michael Gillette wrote the decision, joined by Justices Wallace Carson Jr. and R. William Riggs, who retired Sept. 30 but sat in on the case. Riggs' successor, Martha Walters, did not take part.

"Not only do the people wish to be assured that forfeitures are reined in, they shall encourage it by removing the carrot which otherwise would tempt the two political branches of government to treat the criminal law as a revenue-raising source," Gillette said.

Justice Robert Durham sided with the majority but wrote his own opinion.

Dissenters were led by Justice Rives Kistler and joined by Chief Justice Paul De Muniz and Justice Thomas Balmer. Kistler wrote that the multiple-amendment ban "should not expand and contract like an accordion from one case to the next."

The court's decision, because it upholds constitutional changes, nullifies much of a compromise bill passed by the 2005 Legislature and negotiated by law-enforcement officials and the American Civil Liberties Union of Oregon. They were on opposite sides of the 2000 ballot measure.

The new law retained the requirement for criminal convictions of owners before police can sell seized property or keep confiscated cash. It set different legal tests for houses and other real property, and cash and other property.

It allowed some of the proceeds from seized property to go to other purposes, such as cleanups of illegal drug labs and relief nurseries.

"My immediate plan is to review the opinion closely, figure out what the differences are between the constitutional measure and this law, and go from there," said Dave Fidanque, the executive director of the ACLU of Oregon.

But Sugerman, who did not take part, offered a differing view.

"Voters were clear in the measure that the money should go to drug courts and drug treatment," he said. "Those are good uses of the money and good ways to reduce crime."

Bovett, who took part in the negotiations, said future changes now are up to voters.

"At this point, the Legislature can only fashion a Band-Aid to heal the damage caused by an out-of-state consortium of billionaires bent on drug legalization, under the guise of protecting individual rights," Bovett said.

Bovett referred to the bankrolling of the 2000 campaign by New York financier George Soros and two others.

Offering a differing view was the Drug Policy Alliance Network, a national organization that helped Oregon groups write and pass the 2000 measure and helped fund its defense in the courts.

"The decision not only makes sure that people have basic protections from having their assets forfeited," said Daniel Abrahamson, its director of legal affairs. "It also directs the forfeiture proceeds to where the money can make the most difference in creating safer communities and saving lives."

The Legislature originally passed a forfeiture law in 1989 that allowed police to have "reasonable cause" that property was connected to a crime before seizing and selling it. Critics said the standard allowed police too much latitude, which led to the initiative in 2000.

The full ruling is available at

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