Last week, the Oregon Court of Appeals issued its decision in a civil forfeiture case out of Yamhill County, which is the first appellate guidance on the application of Oregon’s civil forfeiture laws since voters passed Ballot Measure 3 in 2000. The Court of Appeals held that, in light of Oregon voters’ decision to limit property forfeiture to instances where the owner has been convicted of a crime connected to the property, civil forfeiture proceedings under Oregon law are properly categorized as criminal punishment for purposes of the Fifth Amendment’s prohibition on double jeopardy.
The case involved a woman who was convicted pursuant to a plea bargain of two counts of unlawful delivery of between 100 and 499 grams of methamphetamine and one count of felon in possession of a firearm. The criminal case arose when law enforcement intercepted two packages before they were delivered that contained methamphetamine, with one of the packages addressed to the woman’s Yamhill County home. At her criminal sentencing, she agreed to forfeit $50,000 in cashier’s checks that were found in a search of her home after the packages were intercepted but did not agree to any other forfeitures. Shortly after her sentencing, she was served with a civil complaint for forfeiture of her home. Her attorneys, the Salem law firm Ferder, Casebeer, French & Stern, LLP, filed a motion to dismiss the civil forfeiture proceeding on the ground that it violated the Fifth Amendment’s prohibition on double jeopardy. The trial court denied the motion, the case proceeded to trial, and the jury found in favor of the county. The court then entered a judgment of civil forfeiture, which was then appealed by the claimant.
The Court of Appeals held that the trial court erred in denying the claimant’s motion to dismiss, holding that “as a result of Oregonians’ adoption of Article XV, section 10, of the Oregon Constitution, the forfeiture of real property is criminal in nature for purposes of the Fifth Amendment prohibition on double jeopardy. Accordingly, the prior criminal proceeding precluded this subsequent forfeiture proceeding against claimant.” The court reversed the judgment, effectively giving the claimant her home back.
Constitutional Double Jeopardy Protections
The holding that Oregon’s civil forfeiture laws, as codified in the Oregon constitution, represents criminal punishment to which Fifth Amendment double jeopardy protections attach presents several new avenues for claimants in the unenviable position of having to defend their property from being taken by Oregon law enforcement agencies. The Fifth Amendment of the United States Constitution, along with Article I, section 12, of the Oregon Constitution, protects the criminally accused from serial prosecutions concerning the same conduct.
In general, once a criminal proceeding proceeds to trial, it acts as a bar on future proceedings concerning the same conduct. Thus, in the Court of Appeals opinion described above, the claimant’s criminal conviction and sentencing acted as a bar for any further criminal punishment. Under this same holding, a civil forfeiture proceeding that goes to trial would act as a bar for any later criminal proceedings against the claimant for the same conduct that triggered the civil forfeiture proceeding.
Implications for Cannabis-Related Civil Forfeiture Cases
Last summer I wrote about the disturbing trend of law enforcement initiating civil forfeiture cases against landowners who rented to hemp operators who were accused of actually growing illegal marijuana. Oftentimes, these landowners are not themselves charged with crimes, but law enforcement seeks forfeiture of their property under an exception to the rule that the owner must first be convicted – that a person other than the owner was convicted of a crime in connection with the property, and that the owner took the property with the intent to defeat forfeiture, knew or should have known that the property constituted proceeds or an instrumentality of criminal conduct, or acquiesced in the criminal conduct. As noted in the Court of Appeals Opinion, the Oregon Constitution places the burden to prove those facts squarely on the government, and in the case of real property, requires that proof to be by clear and convincing evidence.
In these situations, where the owner/claimant is not facing criminal charges, the application of last week’s appellate decision appears less than straightforward. However, the recognition that civil forfeiture proceedings are only nominally civil, but rather seek to impose criminal punishment, means that such claimants also have Fifth Amendment protections against self-incrimination, which essentially bars most avenues of civil discovery from a claimant. This means that if the government does not have clear and convincing evidence from third party sources that implicates that the claimant knew or should have known that their property was being used to commit a crime, they will likely lose the case at trial or on a motion for summary judgment, and that loss will bar any subsequent prosecution of the claimant. Additionally, the government will have to reimburse the claimant for their attorney fees.
Last week’s appellate decision was nothing less than seismic and has the potential to stop the trend of law enforcement using civil forfeiture against real property used for illicit cannabis grows dead in their tracks. Because the opinion offers the only authoritative interpretation of Oregon’s Constitutional limitations on civil forfeiture, there is no easy legislative fix for law enforcement to exploit. The only recourse is with the voters at the ballot box.