After Oregon voters passed Measure 3 in 2000 to stop forfeiture funds from going to law enforcement, can Oregon police still receive their share of federal forfeiture money and use it for police work?

Plain-English summary

Oregon voters approved Ballot Measure 3 in November 2000, adding Article XV, section 10, to the constitution. The amendment imposed limits on civil forfeitures by state and local law enforcement, including prohibitions on using forfeiture proceeds for law enforcement. Section 10(8) directed the state to take "all necessary steps" to share in U.S. Department of Justice forfeiture proceeds and apply those proceeds in the manner specified in section 10(7), which restricted law-enforcement use.

The wrinkle was that the federal government's equitable-sharing program required participating states to use a specified percentage of shared forfeiture proceeds for law enforcement. If Oregon couldn't agree to use the funds for law enforcement, the state risked being cut off from receiving any share. So the Department of State Police needed to know what categories of federal forfeitures were actually within Section 10's prohibition.

The AG worked through three questions and concluded the prohibition applied only narrowly.

USDOJ criminal forfeitures. The AG concluded the law-enforcement-use prohibition did not apply to property and proceeds from USDOJ criminal forfeitures. Section 10(8) referred to USDOJ "forfeiture," and Section 10's structure focused on civil forfeitures specifically. The text, context, and history all pointed to the prohibition reaching USDOJ civil forfeitures, not criminal forfeitures. Oregon law enforcement could continue to receive and use its share of USDOJ criminal forfeiture proceeds for law enforcement purposes.

Treasury forfeitures. The AG concluded the prohibition did not apply to property or proceeds from U.S. Treasury civil or criminal forfeitures. Section 10(8) referred specifically to USDOJ forfeitures. Treasury operated a separate forfeiture program, and the text of Section 10 did not reach it.

Forfeitures begun before December 7, 2000. The AG concluded the prohibition did not apply to USDOJ civil forfeitures commenced by seizure of the property before December 7, 2000 (Measure 3's effective date), even if the judgment of forfeiture was issued after that date. The dispositive event was the seizure that commenced the forfeiture, not the entry of judgment.

Taken together, the AG's reading preserved most of Oregon's access to federal forfeiture sharing. State police would lose the ability to use shared proceeds for law enforcement only when the proceeds came from a USDOJ civil forfeiture seized on or after December 7, 2000. Everything else, USDOJ criminal forfeitures, Treasury forfeitures, and USDOJ civil forfeitures begun before Measure 3, remained available for law-enforcement use.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What did Measure 3 change about forfeiture proceeds?
Measure 3 added Article XV, section 10, which limits civil forfeitures and bars using forfeited property and proceeds for law enforcement. Section 10(7) channels proceeds in order: to foreclosed liens and security interests, then to the forfeiture's costs (capped at 25% of proceeds), then exclusively to drug treatment. Section 10(8) directs the state to seek its share of USDOJ forfeiture proceeds and apply them the same way.

Why did the AG read the prohibition so narrowly?
The AG worked from the text. Section 10(8) referred to USDOJ forfeitures specifically. The structure of Section 10 was about civil forfeitures. Reading the prohibition to cover Treasury forfeitures or USDOJ criminal forfeitures would have required extending the text beyond what the voters approved.

Was the AG worried about cutting off federal funding?
The opinion noted the practical reality: USDOJ's then-current guidelines required participating states to use a specified percentage of shared proceeds for law enforcement. If Oregon couldn't use any USDOJ-shared funds for law enforcement, USDOJ wouldn't share at all. The AG's narrow reading preserved the program for criminal forfeitures (and pre-Measure 3 civil forfeitures), avoiding a wholesale cutoff.

What did Oregon police have to do with shared USDOJ civil forfeiture proceeds from post-2000 seizures?
Apply them as Section 10(7) directed: not for law enforcement. After satisfying liens and the forfeiture's costs (up to 25%), the remainder went exclusively to drug treatment unless another disposition was specially provided by law. Oregon's share of post-2000 USDOJ civil forfeiture proceeds could not go to law enforcement.

Could a federal forfeiture commenced before Measure 3 but concluded after Measure 3 still go to law enforcement?
Yes. The AG concluded the dispositive event was the seizure that commenced the forfeiture. Forfeitures begun by seizure before December 7, 2000 fell outside Section 10's restrictions even if the judgment was entered later.

Does it matter whether the money comes from USDOJ or Treasury?
Yes. Section 10's use restriction applies only to property and proceeds the state receives from USDOJ, and only from USDOJ civil forfeitures. Proceeds the state receives through the Treasury forfeiture program fall outside Section 10 entirely, so they remained available for law-enforcement use.

Background and statutory framework

Article XV, section 10, of the Oregon Constitution was added by Ballot Measure 3, approved at the November 7, 2000 general election with an effective date of December 7, 2000. The amendment imposed limits on civil forfeitures, including restrictions on the state's use of forfeiture proceeds for law enforcement.

Section 10(7) sets out permitted uses for forfeiture proceeds, excluding law enforcement. Section 10(8) addresses federal equitable 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."

The federal equitable-sharing program operated under the USDOJ Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies (March 1994). The Guide required participating states to use a specified percentage of shared proceeds for law enforcement.

U.S. Treasury operated a separate forfeiture program from USDOJ (the opinion cites 31 USC § 9703, the Treasury Forfeiture Fund). The Treasury program was not addressed in Section 10(8) of the Oregon Constitution.

Citations

• Oregon Constitution Article XV, section 10 (limitations on forfeitures and use of forfeiture proceeds)
• Oregon Constitution Article XV, section 10(7) (permitted uses)
• Oregon Constitution Article XV, section 10(8) (federal equitable sharing)
• Ballot Measure 3 (November 7, 2000) (referred adoption of Article XV, section 10)
• PGE v. Bureau of Labor and Industries, 317 Or 606 (1993) (interpretation methodology)
• Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551 (1994) (interpretation of voter-adopted constitutional provisions)

Source

• Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/2002/07/op8278.pdf

Original opinion text

July 3, 2002

No. 8278
The Oregon Constitution, Article XV, section 10, prohibits the state from using certain
forfeited property and proceeds for law enforcement purposes. The Department of State Police
(department) asks three questions about the applicability of that prohibition to federal forfeitures.
FIRST QUESTION PRESENTED
Does the constitutional prohibition on using forfeited property for law
enforcement apply to the department’s share of property or proceeds obtained in
United States Department of Justice (USDOJ) criminal forfeitures?
ANSWER GIVEN
No. The text, context and history of Article XV, section 10 indicate that the prohibition
applies only to property and proceeds obtained in USDOJ civil forfeitures.
SECOND QUESTION PRESENTED
Does the constitutional prohibition on using forfeited property for law
enforcement apply to the department’s share of property or proceeds obtained in
United States Department of the Treasury (Treasury) civil or criminal forfeitures?
ANSWER GIVEN
No. Article XV, section 10 does not apply to property or proceeds derived from civil or
criminal forfeitures obtained by Treasury.
THIRD QUESTION PRESENTED
Does the constitutional prohibition apply to property or proceeds from
USDOJ civil forfeitures commenced by seizure of the property prior to

December 7, 2000, the effective date of Article XV, section 10, but concluded
after that date?
ANSWER GIVEN
No. The constraints that Article XV, section 10 places on the department’s use of
property or proceeds received from USDOJ civil forfeitures do not apply to property or proceeds
seized by authorities before section 10’s effective date, even if the judgment of forfeiture is
issued after that date.
DISCUSSION
I.

Property or Proceeds from USDOJ Criminal Forfeitures

Section 10 of Article XV was added to the Oregon Constitution as a result of the people’s
approving Ballot Measure 3 on November 7, 2000. Section 10 generally imposes limitations on
the forfeiture of private property and restrictions on the state's use of forfeiture proceeds. Most
of its provisions relate to state forfeitures only, but two relate to federal forfeitures. Section
10(8) directs the state to take “all necessary steps” to share in the proceeds of a USDOJ
“forfeiture” and to use any shared proceeds in the manner specified in section 10(7). Section
10(7) forbids the use of forfeited property and proceeds for law enforcement purposes, among
other restrictions. After informally conferring with DOJ counsel, the department previously
concluded that subsections (7) and (8) apply to USDOJ civil forfeitures. That conclusion is
consistent with the analysis set out in this opinion. The question is whether they also apply to
USDOJ criminal forfeitures. The answer will determine whether the state receives any share
from USDOJ criminal forfeitures, since USDOJ’s current guidelines apparently prohibit it from
sharing forfeiture proceeds with a state unless the state uses a specified percentage for law
enforcement.1/ See USDOJ GUIDE TO EQUITABLE SHARING OF FEDERALLY FORFEITED PROPERTY
FOR STATE AND LOCAL LAW ENFORCEMENT AGENCIES (March 1994), Sec 10(A) at 10-14 and
Addendum at 6 (“Permissible Use Policy”) (USDOJ GUIDE).
In interpreting a constitutional measure approved by initiative, we first look to the text
and context of the measure to determine the intent of the people. PGE v. Bureau of Labor and
Industries, 317 Or 606, 612 n 4, 859 P2d 1143 (1993). If the people’s intent is clear from the
text and context of the measure, the inquiry ends there. If the people’s intent is not clear from
the text and context, we look to materials, such as information available to the people at the time
the measure was adopted, that disclose the people’s understanding of the measure. Ecumenical
Ministries v. Oregon State Lottery Comm., 318 Or 551, 560 n 8, 871 P2d 106 (1994). Those
materials include ballot titles, explanatory statements and arguments in voters’ pamphlets, news
stories and editorials. Id.
A.

Text of Article XV, Section 10(8)

Section 10(8) relates to the state’s participation in USDOJ forfeitures:
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.
(Emphasis added.)
Section 10(7) restricts the uses to which the state may apply property or proceeds
received from a forfeiture covered by section 10(8) as follows:
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 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;
(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.
Neither section 10(7) nor section 10(8) uses the term “criminal” or “civil” to modify or
describe “forfeiture.” In interpreting the people’s intent, “words of common usage typically
should be given their plain, natural, and ordinary meaning.” PGE, 317 Or at 611. Courts may
refer to dictionary definitions to determine that meaning. Ecumenical Ministries, 318 Or at 560
61 (court looks to dictionary for ordinary meaning of “casino”). WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY (unabridged 1993) defines “forfeiture” as:
the divesting of the ownership of particular property of a person on account of the
breach of a legal duty and without any compensation to him * * * loss of some
right, privilege, estate, honor, office, or effects in consequence of a crime,
offense, breach of condition, or other act.
WEBSTER’S at 891. This definition makes no distinction between forfeitures accomplished
through civil and criminal proceedings; it encompasses both. Therefore, standing alone, the text
of section 10(8) suggests that it covers property and proceeds the state receives from USDOJ
civil and criminal forfeitures. Under PGE, however, it is necessary to determine the meaning of
section 10(8) within the context of the remainder of section 10.
B.

Context of Article XV, Section 10(8)

In interpreting Article XV, section 10, we may consider statutory and judicially
developed rules of construction that “bear directly on how to read the text.” PGE, 317 Or at 611.
One such rule is that a term repeated within a statute should be interpreted consistently
throughout. PGE, 317 Or at 611 citing Oregon Racing Comm. v. Multnomah Kennel Club,
242 Or 572, 586 [sic], 411 P2d 63 (1966).2/ The term “forfeiture” is used in over a dozen places

in section 10, in addition to subsection 8. The term “civil forfeiture” is used in several places,
but “criminal forfeiture” is never used. This raises the question whether the unmodified
“forfeiture” was intended to convey the term’s broader, dictionary meaning or was, instead, used
merely as shorthand for “civil forfeiture.” To answer that question, we examine every provision
which contains the unmodified term to see if any was either clearly intended to cover criminal
forfeitures or clearly intended not to cover them even though it could sensibly have done so.3/
We find no instances of the former, but one of the latter.
Section 10(4)4/ provides certain safeguards for the protection of innocent property
owners, such as secured creditors, which is an issue that could arise in civil or criminal forfeiture
proceedings. While section 10(4) uses the unmodified term “forfeiture,” the section begins with
a phrase limiting its effect to “civil forfeiture” proceedings. The fact that section 10(4) is
expressly limited to civil proceedings is an indication of the people’s intent to preclude
application of section 10 to criminal forfeiture proceedings.
In a similar vein, section 10(9)5/ limits the circumstances in which the state and its
political subdivisions may “transfer forfeiture proceedings” to the federal government. A review
of state statutes in effect when Ballot Measure 3 was adopted reveals that only one statute
authorized such transfers. ORS 475A.045(4)(a) authorizes the state or a political subdivision to
transfer seized property to a federal agency with forfeiture authority. This statute applies to civil
forfeitures only.6/ Thus, even though section 10(9) uses the broader, unmodified term, its
practical meaning at the time of its approval by the people was confined to civil forfeitures.
That sections 10(4) and 10(9) apply either explicitly or practically only to civil
forfeitures, combined with the absence of any provision in section 10 clearly intended to apply to
criminal forfeitures, suggests that the unmodified term “forfeiture” was understood to encompass
civil forfeiture only throughout section 10. In short, “forfeiture” appears to be shorthand for
“civil forfeiture.”
The meaning of “forfeiture” as used in sections 10(7) and 10(8) is illuminated by the law
existing prior to approval of Ballot Measure 3. Until 1989, Oregon had no comprehensive state
law by which property could be forfeited through civil litigation brought by governments. Cities
and counties had begun enacting ordinances providing for civil forfeiture of property used in a
growing list of unlawful conduct. Oregon Laws 1989, chapter 791 preempted the local
forfeiture process by imposing uniform civil procedures for forfeiture proceedings. Nothing in
the 1989 law predicated forfeiture of property on a criminal charge or conviction. No “criminal”
forfeiture procedure of general applicability existed.
C.

History of Article XV, section 10

Nothing in the ballot title, explanatory statement, arguments in favor or against, or
newspaper reports about Ballot Measure 3 speaks to the issue of sharing proceeds with USDOJ
and how that would be affected by approval of the measure. The explanatory statement
accompanying Ballot Measure 3, however, helps to understand its intended scope.7/
The explanatory statement contrasts forfeitures under then-current law with forfeitures
under Ballot Measure 3 if approved. 2000 GENERAL ELECTION VOTERS’ PAMPHLET at 237
(Voters’ Pamphlet). Section 10(11) contains reporting requirements as to “all property and

proceeds seized for forfeiture or forfeited.” Like other provisions, section 10(11) makes no
explicit distinction between civil and criminal forfeitures. The explanatory statement, however,
says that “[m]easure 3 expands current reporting requirements to include all civil forfeitures.”
Voters’ Pamphlet at 237. Hence, the explanatory statement identifies another provision of
section 10 that applies only to civil forfeitures despite using the broader, unmodified term
“forfeiture.”
D.

Maxims of Statutory Construction

Finally, if the people’s intent remains unclear after considering text, context and history,
we may resort to general maxims of construction to resolve any remaining uncertainty as to the
meaning of the measure. PGE, 317 at 612. Because there is uncertainty here, we also consider
the maxim that legislation should be construed so as to avoid internal inconsistencies and to
achieve harmony. Todd v. Bigham, 238 Or 374, 398, 395 P2d 163 (1964); Friends of Neabeack
Hill v. City of Philomath, 139 Or App 39, 49, 911 P2d 350, rev den 323 Or 136, 916 P2d 311
(1966); 20 Op Atty Gen 124 (1940). One disharmony that would result if “forfeiture” were
interpreted to include both civil and criminal forfeiture is as follows. If section 10(8) applied to
property and proceeds received from USDOJ civil and criminal forfeitures, the state would be
required to dispose of all such property and proceeds in the manner required by section 10(7),
e.g., using the net proceeds exclusively for drug treatment. The state would be required to
dispose of property and proceeds received from state civil forfeiture actions in the same manner.
However, without any apparent reason for the distinction, the provisions of section 10(7) would
not apply to property or proceeds forfeited through state criminal proceedings.8/ On the other
hand, interpreting section 10(8) to apply only to property and proceeds from civil forfeitures
provides for a consistent disposition of property and proceeds, as between those forfeited through
civil and criminal proceedings, throughout section 10.
E.

Conclusion

In section 10(8), the term “forfeiture” is sometimes used alone and is sometimes modified
by the term “civil.” On the other hand, the context provided by the remaining provisions of
section 10, related statutes, the section’s history, and maxims of construction support interpreting
“forfeiture” within section 10(8) to refer only to civil forfeiture. Therefore, we interpret the
references to “property or proceeds from the United States Department of Justice resulting from
a forfeiture” and “any property or proceeds received from the United States Department of
Justice” in Article XV, section 10(8) to apply to property and proceeds resulting from only civil,
as opposed to criminal, forfeitures.
II.

Property or Proceeds from Treasury Civil or Criminal Forfeitures

The second question is whether section 10 applies to the department’s share of property
or proceeds resulting from civil or criminal forfeitures obtained by Treasury.
USDOJ and Treasury are, and were when the people were considering Ballot Measure 3,
distinct agencies within the federal government. Compare 28 USC § 501 et seq., establishing
USDOJ, with 31 USC § 301 et seq., establishing Treasury. The two agencies operate different
civil and criminal forfeiture programs. Compare, e.g., 21 USC § 881(e), providing for the

Attorney General’s disposition of forfeited property, and 31 USC § 9703, providing for
establishment and use of a “Department of the Treasury Forfeiture Fund.”
Using the PGE method of analysis described above, we begin by examining the text and
context of section 10. Nothing in section 10 refers to Treasury. Section 10(8), which establishes
the universe of federally shared property and proceeds subject to the limitations imposed by
section 10(7), makes reference only to property or proceeds received from USDOJ. This is in
contrast to section 10(9), which restricts when the state may transfer forfeiture proceedings “to
the federal government.” We interpret the specificity of section 10(8), in contrast to the more
general language of section 10(9), to apply only to property or proceeds the state receives from
USDOJ. Therefore, neither section 10(8) nor the use limitations in section 10(7) applies to the
department’s sharing in property or proceeds resulting from a civil or criminal forfeiture
obtained by Treasury, as long as the state receives the funds from Treasury instead of from
USDOJ.9/ In other words, section 10 does not limit the department’s authority to share in civilly
or criminally forfeited property or proceeds received from Treasury.
III.

USDOJ Civil Forfeiture Proceedings Spanning December 7, 2000

The department’s final question is whether section 10 applies to the department’s share of
property or proceeds resulting from a USDOJ civil forfeiture which commenced by seizure
before December 7, 2000, the date section 10 took effect, but concluded after that date.
“Whether a particular enactment is to be applied retroactively is a matter of legislative intent.”
State v. Lanig, 154 Or App 665, 670, 963 P2d 58 (1998) citing Whipple v. Howser, 291 Or 475,
479-81, 632 P2d 782 (1981). To determine whether section 10 applies retroactively requires an
assessment of the people’s intent, using the analytical framework established by PGE. Lanig,
154 Or App at 673-74. Neither the text nor context of section 10 expresses the people’s intent on
the issue of retroactivity. The fact that section 10 does not contain a retroactivity clause
“suggest[s] either that the voters did not intend retroactive application or that they simply did not
think about the matter.” Id. at 673. The historical material, e.g., the ballot title and explanatory
statement, also are silent as to retroactivity. Turning to the third level of PGE analysis, which
calls for consideration of relevant canons of construction, we consider the presumption that
“constitutional amendments apply prospectively.” Id. at 675.
[A] constitution always operates prospectively, unless it is clearly shown from the
language used or the objects to be accomplished that the provision was intended
to operate retrospectively, and such intent must be clearly established.
Id. at 675 quoting Darling v. Miles, 57 Or 593, 598, 111 P 702 (1910), rehearing denied 112 P
1084 (1911). Adhering to the maxim stated in Darling and applying section 10 prospectively,
the question becomes whether applying section 10 to property or proceeds the department
receives from USDOJ civil forfeiture proceedings begun by seizure prior to December 7 but
concluding thereafter constitutes prospective application.
The Oregon Supreme Court has summarized the difference between prospective and
retroactive application of a newly enacted law:
Retroactive legislation affects prior transactions or existing legal rights and
obligations, not necessarily pending actions. See generally 2 Singer, Sutherland

Statutory Construction 337, § 41.01 (4th ed 1986). Therefore, when a prospective
application is called for, the court applies the legislation in a manner which does
not affect legal rights and obligations arising out of past actions or occurrences.
Fromme v. Fred Meyer, Inc., 306 Or 558, 561-62, 761 P2d 515 (1988) (citations omitted).
Thus, we must apply section 10 to the sharing of property and proceeds with USDOJ in a way
that “does not affect legal rights and obligations arising out of past actions or occurrences.”
For USDOJ to consider a state’s request to share in forfeited property or proceeds, the
state must submit its request within sixty calendar days after the property or proceeds were
seized, or within sixty calendar days of federal adoption of the seizure. USDOJ GUIDE 6. If the
state did not want to share in the property or proceeds prior to approval of section 10, it did not
need to take any action. Section 10(8) takes away the state’s discretion by requiring it to “take
all necessary steps” to share in federally forfeited property and proceeds with USDOJ. Under
section 10(8), the department or another affected agency must submit a request within the
timeline set by USDOJ whenever the state has a right to do so. In this way, section 10(8) affects
the state’s legal obligations in relation to forfeitures controlled by USDOJ.
As required by Fromme, section 10(8) may not affect the state’s legal obligations arising
out of past actions or occurrences. The state’s obligation to submit the required sharing request
to USDOJ within a certain amount of time is triggered by the seizure of property or proceeds, or
federal adoption of the seizure. Therefore, we conclude that for section 10(8) to apply
prospectively it may apply only to property or proceeds seized after December 7, 2000, when
section 10(8) took effect. Thus, section 10 does not limit the department’s authority to share in
property or proceeds with USDOJ resulting from a federal civil forfeiture action that commenced
by seizure before December 7, 2000.10/

HARDY MYERS
Attorney General
HM:DNH:KBC:naw/GENC0604

1/

The United States Attorney General has the authority to decide from several statutory options
in disposing of property forfeited through USDOJ criminal or civil forfeiture. 21 USC § 881(e).
2/

A case prior to Oregon Racing Comm. states the rule of interpretation more completely:
[I]n the absence of anything in the statute clearly indicating a contrary intent, where
the same word or phrase is used in different parts of a statute, it will be presumed to
be used in the same sense throughout; and, where its meaning in one instance is clear,
this meaning will be attached to it elsewhere.

School Dist. No. 17 v. Powell, 203 Or 168, 185, 279 P2d 492 (1955), citing, Holman Transfer Co. v.
Portland, 196 Or 551, 563, 249 P2d 175, 250 P2d 929 (1952). This rule appears to apply equally to
the interpretation of constitutional amendments adopted by initiative. PGE, 317 Or at 614, n 4.

3/

Sections 10(3) and 10(5) both impose a precondition to forfeiture – criminal conviction – that
is, of course, redundant as to criminal forfeitures. Subsections 10(2) and 10(6) – 10(11) use the
unmodified term “forfeiture,” or some form thereof, but their substance does not compel either
meaning. The same is true of the reference to federal forfeitures, since federal law allows for both.
4/

Section 10(4) provides:
Protection of innocent property owners. In a civil forfeiture proceeding if a
financial institution claiming an interest in the property demonstrates that it holds an
interest, its interest shall 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/

Section 10(9) provides:
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.

Although the phrase “forfeiture proceedings” suggests that subsection (9) only applies to
pending state court litigation, we conclude that a pending state suit is not a precondition to its
application because such a precondition would render (9)(b) nugatory.
6/

Amendments to ORS 475A.045(4), deleting specific reference to “civil forfeiture,” become
operative on July 31, 2005. Or Laws 2001, ch 780, § 66.
7/

By statute, an explanatory statement is an impartial explanation of a ballot measure prepared
by a committee composed of five persons, two appointed by the measure’s proponents, two appointed
by the Secretary of State from among the opponents, if any, and one appointed by the first four
appointees. ORS 251.205; 251.215.
8/

Section 10(7)’s disposition requirements apply to property or proceeds forfeited under section
10(3), 10(5) or 10(8). Sections 10(3) and 10(5) apply only to civil forfeiture proceedings while
section 10(8) applies to USDOJ forfeitures. Therefore, it is not possible for section 10(7)’s
disposition requirements to apply to property or proceeds forfeited in state criminal forfeiture
proceedings.

9/

The Secretary of the Treasury has authority, independent of USDOJ, to share forfeited property
or proceeds with state and local law enforcement agencies. 19 U.S.C. § 1616a(c)(1)(B)(ii); 18 U.S.C.
§ 981(e)(2).
10/

Other portions of section 10 relate to state civil forfeiture proceedings. For example, under
section 10(3), a civil forfeiture judgment may not be entered in state proceedings unless the owner of
the property is convicted of a crime and the property is found to be related to that crime in one of
several ways specified in the subsection. Because your question concerns only sharing property and
proceeds with USDOJ, we have not looked exhaustively at what prospective application of other
portions of section 10, such as section 10(3), entails.