Pubdate: Fri, 20 Oct 2006
Source: Statesman Journal (Salem, OR)
Copyright: 2006 Statesman Journal
Contact:  http://www.statesmanjournal.com/
Details: http://www.mapinc.org/media/427
Author: Peter Wong, Statesman Journal
Cited: The ruling http://www.publications.ojd.state.or.us/S50900.htm
Cited: American Civil Liberties Union of Oregon http://www.aclu-or.org
Cited: Drug Policy Alliance Network http://www.drugpolicy.org
Bookmark: http://www.mapinc.org/topics/asset+forfeiture (asset forfeiture)
Bookmark: http://www.mapinc.org/find?247 (Crime Policy - United States)
Bookmark: http://www.mapinc.org/find?246 (Policing - United States)

DIVIDED SUPREME COURT UPHOLDS RESTRICTIONS ON POLICE SEIZURES

Compromise Bill From Legislature Nullified by Ruling

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. 
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MAP posted-by: Richard Lake