Lincoln Interagency Narcotics Team v. Kitzhaber

Argued 4, 2004, and Appeals reversed; submitted November decision of Court of judgment of circuit court affirmed October

LINCOLN INTERAGENCY NARCOTICS TEAM (LINT),

a law enforcement agency created by intergovernmental agreement, Respondent Review, on

and COUNTY, LINCOLN a political subdivision of the State of Oregon,

Plaintiff, ANIMAL LEGAL FUND, DEFENSE

Oregon Humane Society, Humane Society Willamette Valley,

Stephan Otto, K. Sharon M. Harmon

and Wayne S. Geiger, Respondents Review, on

v. John KITZHABER, M.D., Governor of the State of Oregon,

Bill Bradbury, Secretary State, and the State of Oregon, Review,

Petitioners on Ray HESLEP and Sandra Adamson, Petitioners on Review.

(CC 00C-19878; S50904) A115401; CA SC S50900 (control),

(Consolidated for Argument and Opinion)

145 P3d 151 General, Attorney Schradle, Counsel Special Philip on for petitioners and filed briefs Salem, the cause argued and State Bradbury Bill Kitzhaber, M.D., John review Attorney Hardy Myers, him on the briefs were With Oregon. Williams, Solicitor General. H. General, Mary and argued Eli Stutsman, D. Portland, the cause and filed the petitioners Ray Heslep brief for on review and Sandra Adamson. Newport, argued Bovett,

Robert E. the cause and filed the respondent brief for on review LINT. respondents

B. Grew, Carlton Portland, filed the brief for Legal on review Animal Fund, Defense Humane Society, Society Valley, Stephan Humane of the Willamette Wayne Geiger. Otto, K. Sharon M. Harmon, and S.

Before Carson, Justice,** Chief and Gillette, Durham, Riggs, De Muniz,*** Balmer, Kistler, Justices, and pro tempore.**** Justice

GILLETTE, J. specially opinion. Durham, J., concurred and filed an opinion Kistler, J., dissented and filed an in which joined. Muniz, J., De Balmer, J., C.

** argued. Chief Justice when case was *** Chief Justice when decision was rendered. **** Riggs, Judge, sitting by designation. the Honorable R. William Senior Walters, J., participate did not in the consideration or decision of this case.

GILLETTE, J. Ballot Measure is whether in this case The issue (2000) (Measure 3), amendment a constitutional actually process, pursuant people adopted the initiative’ amendments violation two or more contains of Oregon A Constitution.1 1, of the Appeals panel measure held that the of of the Court divided does contain two or it makes at because more amendments are constitution that two substantive least Interagency Team v. Narcotics related. Lincoln (2003). For the reasons P3d 967 526, Kitzhaber, disagree and therefore that conclusion follow, we with Appeals. of the decision of the Court reverse adopted Measure 3 at the November The voters general adds a new section deal- election. The measure Oregon ing Constitution. to Article XV of the with forfeitures provides: Measure 3 State is XV of the Constitution of the

“Article following to include the People amended a vote of the new section: Act Oregon Property The Protection “Section 10. of2000. cited as the may known and shall be This section be Property Protection Act of 2000.’

‘Oregon “(2) exer- People, The principles. Statement of power reserved to them under Constitution cise of the that: Oregon, the State of declare

“(a) society per- a democratic is that A basic tenet of until punished not be presumed innocent and should son proven guilty;

“(b) person should not be forfeited property until that unless and proceeding by government a forfeiture involving property; crime is convicted of a person provides: Constitution * * * of this to the voters shall be submitted two or more amendments “When election, they each amendment so submitted that shall be at the same state separately.” on shall be voted

“(c) The value of property forfeited should propor- be tional to the specific conduct for which the owner of the property convicted; has been

“(d) Proceeds from forfeited property should be used drug treatment of abuse unless otherwise specified by law for purpose. another “(3) prohibited without conviction. No Forfeitures

judgment of forfeiture property in a civil pro- forfeiture ceeding by any political the State or ofits subdivisions shall be allowed or entered until and unless the owner of the property is convicted of a crime in Oregon juris- or another diction and property is found clear and convincing evidence to have been committing instrumental or facil- itating the crime or to be proceeds of that crime. The value of the property forfeited under of this subsec- tion shall not be excessive and shall be substantially pro- portional to the specific conduct for which the owner of the property has been convicted. purposes section, For of this ‘property’ any value, means in anything interest lot or tract of includ- ing any the whole of tangible land and intangible personal property, including currency, instru- any ments or securities or privilege, interest, other kind of right claim or whether due or to become Nothing due. this prohibit section shall a person voluntarily giving from a judgment of forfeiture. “(4) Protection property innocent In a owners. civil

forfeiture if proceeding a financial claiming institution an interest in property demonstrates that it holds an inter- est, its subject interest shall not be to forfeiture.

“In a civil forfeiture if proceeding person claiming an interest in the property, other than a financial institution or a defendant charged who has been with or convicted of a crime involving property, per- demonstrates that the son an property, has interest in the that person’s interest subject shall not be to forfeiture unless: “(a) forfeiting agency proves by clear and convinc- ing person evidence that the took the property or the inter- est with forfeiture; the intent to defeat the

“(b) A conviction under subsection is later obtained against person. “(5) and contraband. property unclaimed Exception for (3) ofthis sec- of subsection

Notwithstanding an to have persons all known tion, if, following notice to an interest, person no claims may have an interest or who is contra- property or if the property interest in the seized band, entered may be allowed and judgment of forfeiture a subsec- purposes For of this a criminal conviction. without or property, articles tion, personal ‘contraband’ means controlled substances or including but not limited to things, Oregon by person prohibited that a is drug paraphernalia, obtaining or producing, from or local ordinance statute possessing. “(6) in Nothing Law seizures unaffected. enforcement temporary sei- shall be construed to affect

this section forfeiture, evidentiary, protective or for property zure of of the Governor to remit power or to alter the purposes, fines or forfeitures V, this under Article Section Constitution. “(7) drug treat- proceeds Disposition property conducted Any property sale of forfeited shall be

ment. proceeds for- commercially Property manner. or reasonable (8) (5), shall or of this section feited under subsections shall be dis- purposes for law enforcement but not be used following order: applied or in the tributed “(a) liens, security any foreclosed To the satisfaction of priority; in the order of their interests and contracts “(b) subdivisions for any political To the State or of its of the related to the costs expenses actual and reasonable fees, attorney storage, including proceeding, forfeiture maintenance, property ofthe management, disposition any prop- forfeited with the sale incurred connection twenty-five percent exceed erty in an amount not to forfeiture; proceeds any total “(c) subdivisions to any political or of its To the State treatment, dis- unless another exclusively drug be used by law. position specially provided “(8) Oregon or The State of sharing. State and federal necessary take all subdivisions shall any political of its the United from property proceeds shared or steps to obtain a forfeiture. resulting from of Justice Department States Any property or proceeds received from the United States Department of Justice any State of of its political subdivisions shall applied provided be as in sub- of this section. “(9) Restrictions on State Neither the State transfers. subdivisions, of Oregon, political any its nor forfeiting agency shall proceedings transfer forfeiture federal government that: affirmatively unless state court has found

“(a) activity giving rise to the forfeiture is inter- state in sufficiently complex justify nature and transfer;

“(b) may The seized property only be forfeited under law; federal or

“(c) Pursuing forfeiture under state law would unduly forfeiting agencies. burden the state “(10) Penalty Any person acting violations. under for law, color of official title position any or who takes action conceal, transfer, withhold, intending retain, divert or prevent any proceeds, conveyances, otherwise prop- real erty, any things or of value forfeited under the law of this State or being applied, deposited the United States from or (8) (9) in used accordance with subsections or ofthis sec- subject tion shall penalty be to a civil in an amount treble the value property concealed, transferred, of the forfeited withheld, retained or diverted. Nothing this subsection shall be construed to if impair judicial immunity otherwise applicable.

“(11) Reporting requirement. forfeiting agencies All report disposition property shall the nature and of all proceeds seized for forfeiture or forfeited to a State asset oversight forfeiture independent any committee forfeiting agency. The oversight asset forfeiture committee annual generate public shall and make available to the an report of the information collected. The asset forfeiture oversight committee shall also make recommendations to ensure that proceedings asset forfeiture are handled in a property manner that is fair to innocent owners and inter- est holders.

503 “(12) Severability. any part or its of this section If any person application held to be or circumstance is appli- remaining parts any or reason, for then invalid any persons not be circumstances shall cations in full forceand effect.” shall remain affectedbut original.) (Emphasis in practice, unfortunate some

Measure 3 follows the inserting provisions questioned, consti the state times appearance and in common, both in tution that have more legislation amend than with constitutional substance, with Johnson, 9, 19, Or v. State ex rel ments. See Olsen (1976) begins, (recognizing practice). The measure P2d 139 “may example, by stating and shall be that it be known ‘Oregon Property Protection Act of 2000’ ”—a cited as the typically legislation designation than more associated with v. with amendments.2 See Christ/Tauman Myers, (explaining 499, 123 P3d amendments”). “[a]cts from constitutional are different pages provisions deal fact that Measure 3 adds almost two ing Consti with forfeitures to a designation. tution is consistent with that imposes The measure procedural and substantive limitations on various proceedings, priorities limita forfeiture establishes for and (including pro proceeds on the distribution offorfeiture tions proceedings that are available to ceeds from federal forfeiture state), agency report to monitor and on for creates a state violating provides penalty its feitures, and a civil for provisions. adopted plaintiffs people 3, Measure After the (LINT) Interagency and Lincoln Narcotics Team

Lincoln declaratory against County judgment filed a action Oregon Secretary State, and the State of Governor, state”), seeking (collectively the meas- a declaration that “the Article amendments in violation of ure contained two or more Alternatively, sought plaintiffs a declaration XVII, section 1. subject, than in violation that Measure 3 embraced more one 2And, notwithstanding, the meas provision we shall continue to refer to throughout opinion. this ure as “Measure 3”

504 l(2)(d), Oregon IV, ofArticle section of the Constitution.3 The (interveners) petitioners chief of Measure 3 in intervened summary judg- defense ofthe measure.4 On cross-motions ment, the trial court ruled that Measure 3 contained one only single amendment to the constitution and embraced subject, judgment accordingly. and entered appealed, panel

Plaintiff LINT and a divided Appeals majority Court of reversed. The that, concluded analysis under the in Kitzhaber, Armatta v. 327 Or 250, 959 (7) (1998), P2d 49 subsections of Measure 3 made two changes substantive to the constitution that were not Interagency App related. Team, Lincoln Narcotics 188 Or at 538-43, 546-48.

Judge Armstrong major view, dissented. In his ity’s give decision failed to effect to this court’s decisions in Newbry Baum v. al., et 200 Or P2d 267 220 (2001). Hartung Bradbury, v. 570, 33 P3d 972 The dis changes sent reasoned that the Oregon that Measure 3 made Constitution were as related as the upheld they type that the court in Baum and that were the commonly placed that “would be in a section (Armstrong, dissenting). of the constitution.” J., Id. at 570 It followed, the concluded, dissent that Measure 3 did not con tain two or more amendments to the constitution. Id. We petition allowed the state’s for review to consider this recur ring issue. Oregon noted,

As Article of the Con- provides “[w]hen stitution that, two or more amendments shall be submitted the manner aforesaid voters of they election, this state at the same shall be submitted so separately.” that each amendment shall be voted on compre- Armatta, undertook, this court for the time, first meaning hensive examination of the of that requirement.5 Following methodology Pearce, Priest v. 3 IV, l(2)(d), provides, part: of the Constitution “* * * * * * A amendment to the Constitution shall embrace one subject only properly and matters connected therewith.” organizations plaintiffs. Various and individuals also intervened as Because essentially arguments plaintiffs’ arguments, their track we do not refer to those separately. interveners Armatta, applied separate-vote requirement Before this court had with considering wording history. Baum, out either the or its See the word court considered the 411, 840 P2d 65 history, ing inter and the cases 1, its XVII, Article section of (undertaking preting at 256-77 Armatta, 327 Or it. See analysis). from those three conclusions The court drew that looking primarily the the on to debates First, sources. that the word concluded Constitution, the court Indiana change specific particular the a or refers to “amendment” Bradbury, 333 Lehman v. 265-66; see also constitution. Id. at (2002) (drawing from that conclusion 231, 239, 37 P3d 989 Or Armatta). examples, Citing that the court observed historical concerning the establish ‘amendment,’ such as one “a ment of a state bank rights women, married was or the of change.” encompass particular a constitutional intended to Armatta, 327 Or at 265-66. separate-vote the

Second, the court concluded that requirement amend- and constitutional for initiated laws single-subject imposes than the a more restrictive test ments requirement l(2)(d), the IV, section set out Article that the at 276. The court noted Constitution. Id. pro- requirement single-subject of a focuses on the content require- separate-vote posed amendment, while the law or existing “potential change consti- the to the ment focuses on degree “a amendment and the to which tution” (emphases modify existing Id. the constitution.” would explained original). significantly, the court More constitu- requirement applies separate-vote “the amendments, single-subject requirement tional while legisla- constitutional amendments applies equally to follows, believe, separate-vote require- It we tion. 1, imposes require- a narrower Article ment of Article requirement of single-subject ment than does l(2)(d). IV, reading Such a amending the sense, the act of makes because requirement enacting from different significantly constitution * ** Indeed, separate- because legislation. amending change only with is concerned requirement vote able people should be law, the notion that fundamental should amendment upon separate each separately to vote as a short, serves surprise. as no come amendment (stating, explanation, that a 1952 without Or at 580-81 in violation of to the voters” more amendments’ “did not submit ‘two or 1). XVII, section safeguard concept is fundamental consti- tution.” omitted). (emphases original;

Id. citation (and important the Third most task we face this case), recognized although separate-vote that, the court the requirement single-subject is more than the restrictive requirement, recognized it is not The court inflexible. changes separate-vote two or more will not violate the requirement relationship changes if the between the two is a phrased ques- test, close one. Id. at 277. As the court the tion whether a measure contains two or more amendments XVII, 1, violation of Article section turns on whether adopted, changes measure, if “would make or more to the two closely constitution that are substantive and that are not recently Or, related.” Id. as this court summarized the methodology: Armatta * * * XVII, of implement requirement th[e] [Article

“To sec- 1], unifying we a simply tion do not search for thread to cre- theme, thought, ate a purpose melange common from Instead, inquire we changes. constitutional whether, proposal if make or more adopted, would two and are not changes to the constitution that are substantive closely so, proposal related. If violates the 1, pre- of Article section because it would expressing opinions pro- vent voters from their as to each posed change separately.” (2006).

Meyer Bradbury, 288, 296-97, 142 v. P3d 1031 In held that at Armatta, the court the measure issue changes multiple to the consti- there contained substantive closely changes More tution and that those were not related. changes specifically, pairs to the the court identified two closely constitution that were not related: unrea- example, right people “For of all to be free from I, searches and seizures under Article section has sonable virtually nothing right criminally to do with the of the rendered in a jury accused to have a unanimous verdict I, provisions murder case under Article section 11. The two rights, granted to different separate involve criminally Similarly, right groups persons. I, under Article accused to bail sufficient sureties legislation concerning qualifi- relation to bears no jurors in criminal cases under Article VII cations of 5(l)(a).” (Amended), Id. at 283-84. deciding changes

In whether the in Armatta were relationship related, the court both the “considered among provisions by [the affected meas- the constitutional changes ure] relationship and the of the constitutional Lehman, were made in those to one another.” See Armatta). (explaining cases, however, 333 Or at 245 some solely relationship the court has looked between two or changes holding more that a measure effects Bradbury, were not related. See Swett v. (2002) (employing 597, 608, Or ogy). 43 P3d 1094 that methodol- beyond identifying methodologies But, those two testing closely related, whether constitutional are party’s proposal the court has declined one to reformulate “closely related” standard announced in Armatta. See (explaining party’s proposed Lehman, 333 Or at that “closely reformulation of inquiry). related” test not would advance recently Indeed, that, this court has observed “if subject, this court has written little it on the is because there changes have been few instances in which the constitutional presented question before the court a close on that issue.” Meyer, 341 Or at 300.

Finally, foregoing we add to the overview of our “separate-vote” jurisprudence following the observation from (as seen) particularly applicable Swett, which will be here: “Ordinarily, begin any separate-vote inquiry by we changes,

identifying ballot measure explicit implicit, the both and that the purports Oregon to make to the Constitu- changes If tion.Wethen determineif those are substantive. they changes are, if we then determine those substantive ‘closely analyti- Lehman, are cal related.’In we describedthat process way: this “ ‘** * relationship among First, we examinethe the * * provisions *. that the measure affects constitutional existing provisions If the affected themselves constitution likely changes related, are not then it is that provisions

to those will offend the require- * * * proposed [T]he ment. fact that a amendment asks vote, people, substantively change multiple the provisions in one Oregon ofthe Constitution that are not them- selves related is one indication that might separate-vote require- amendment violate the ment. “ ‘Next, changes we must consider the constitutional * * * is,

themselves. That we must determine whether * * * changes provi- made to those they related, If sions are related. are measure scrutiny under consideration survives under they not, section 1. If are it does not.’ foregoing descriptive, “The statement from Lehman was is, prescriptive. equally analytically That it is valid inquiry by focusing start the on the themselves. This the point. case illustrates We need not discuss each of above, steps parties’ arguments described because * *” narrow the inquiry.* focus of our (citations omitted) Swett, Lehman, 333 Or at 607 (quoting 333 Or at 246 modifications As we (ellipses original)). identify, have, shall case like the parties present Swett, to short-cut here parties attempted process by their on the issue whether the focusing arguments primarily changes that Measure 3 effects are related.” multiple “closely

We turn to the various of Measure 3. The focus, did, as the Court of on two subsections parties Appeals (3) (7). in Measure 3—subsection and subsection The parties (3) three agree subsection makes substantive (1) Constitution: it makes a criminal conviction a (2) forfeiture; for a civil it prerequisite requires proof the elements to establish forfeiture be clear and necessary it the value of the evidence; convincing provides forfeited “shall not be excessive and shall be sub- property to the for which the stantially proportional specific conduct owner of the has been convicted.” The dis- property parties however, as to whether those three substantive agree, are related. changes we will present argument,

For the sake of in fact do reflect assume that the three statements foregoing separate changes Oregon three substantive to the Constitu- assumption plaintiffs However, tion. that does not assist their claim that Measure 3 violates the requirement ofArticle 1. section That is so because the changes “closely identified all are related.” analysis regard ordinarily begin Our in that would relationship among any existing with an examination of the provisions constitutional that the three identified affect to determine if those themselves are Swett). (quoting related. See 341 Or at 507-08 However, we Oregon find that the three are additions to the Con any existing stitution and have no effect on provision change making in that document. The first crim — prerequisite requires inal conviction a of civil no forfeiture — regard: party any discussion in that Neither has made claim change any existing provision that the relates to in the state change requiring or federal constitution. As to the second — proved by convincing forfeitures to be there is some clear and evidence— suggestion change alters constitu provisions pertaining proof tional to standards of in criminal proceedings. and other note,We however, that the Due Proc ess Clause of the Fourteenth Amendment to the United generally accepted States Constitution as source of the standard-of-proof requirements recog various constitutional e.g., In Winship, see, nized the courts, re 354, 364, 397 US (1970) (holding 90 S Ct ess Clause L 1068, 25 Ed 2d that Due Proc requires proof beyond a reasonable in crim doubt proceeding), Oregon inal no due and that the Constitution contains

process anything comparable clause or it, State v. (1998). Miller, 327 622, 10, Or 635 n 969 P2d 1006 Finally, we conclude that the third identified change property that the value offorfeited —the substantially proportional predicate be offense—also is any existing provision an to, addition and does affect in, reject plaintiffs’ suggestion the the Constitution. We

change provides I, affects Article 16, which penalties proportional “all shall be I, the offense.”Article applies only proceedings, Oberg 16, in criminal v. (1993), Honda Co., 263, 274-75, Motor 850 P2d 371 grounds, rev’d and rent’d on Honda Motor Co v. different Oberg, 512 US S Ct 129 L Ed 2d 336 speaks proportionality to a at issue while the proceeding. civil changes

Having identified determined that the three existing con- different do not alter or affect may proceed whether the three stitution, we to consider closely changes it is related. We think that are themselves changes parts of an effort to define clear that the are all judicial process forfeiture in constitutional terms. for (3) judicial process part as describes first requiring subsection commencing justify predicate conviction to part permissible process. The second sets out the standard (3) Finally, part process. proof the third of subsection in that may proceed only process provides that the forfeiture underlying proportional is extent that the forfeiture way, close, in that intercon- criminal conviction. Seen relationship parts is clear. the three nected between (7) point of Measure 3. to subsection

Plaintiffs also argu- (and, They ment) again, for the sake of we assume contend separate that that contains two substantive subsection (1) prohibits using changes Oregon it for- Constitution: purposes”; proceeds property for “law enforcement feited (2) distributing prop- priority forfeited it for establishes recognize part erty any analog proceeds. has that neither Plaintiffs and, thus, that nei- in the Constitution changes any existing provision As of the constitution. ther existing provi- then, we need not consider whether before, closely by changes related to one those are sions affected question may proceed of whether We another: changes (7) are themselves identified subsection related. changes are the two

We conclude they separate A illustration suf- related, if are at all. brief parts regard: at the two of subsec- in that If one looks fices, (7) considers the subsection’s order, in reverse one first tion proceeds to “the State distributed that forfeiture be direction exclusively any political for pro- to be used of its subdivisions or drug prohibition on the use of then its treatment” and per- purposes.” Viewed from enforcement ceeds for “law may provision spective, for what it is—a be seen the latter proper considered a would be on what otherwise limitation money any polit- distribution forfeited “tothe State or ofits exclusively drug treatment, ical subdivisions to be used disposition specially provided by unless another law.” See Meyer, (explaining relationship). 341 Or at 301 similar So concepts separate understood, merely all; the two are not at one very they “closely least, delimits the other. At the are related.”

Finally, we turn to consider whether the (3) by effected subsection and the effected subsec- (as “closely tion are also related to each other” before, our changes any existing determination that those do not affect provisions Oregon any of the Constitution obviates need to relationship existing provisions). consider the between Plain- they arguing tiffs contend that are not, as follows:Subsection (3) provides procedural protec- increased and substantive property against premature, tions for owners to ensure inac- (7), curate, or excessive forfeitures. Subsection on the other prohibits legislative hand, the executive and branches from using proceeds pur- the of forfeitures for law enforcement poses and directs how forfeiture revenues shall be used. argue right property require Plaintiffs that the owners to prove by convincing the state to its case clear and evidence is closely prohibition against using no more related to the for- proceeds purposes right feiture for law enforcement than the people of all to be free from unreasonable searches and sei- closely right zures, at issue in Armatta, was related to the criminally jury. the accused to have a follows, unanimous It plaintiffs reason, that, as the court held in Armatta, the (3) (7) changes contained in subsections and ofMeasure 3 are accordingly, not and, related constitute two or more amendments under Article section 1.

Again, unpersuaded. Indeed, we are it seems to us plaintiffs’ analysis only that possible if works one stands as close as provision ignores

to each us, and the others. To it is perfectly provided clear that the administrative detail in sub- (7) closely related to the substantive made (3): people in subsection Not do the towish be assured they encourage by that removing in, forfeitures are reined shall it tempt carrot, the which otherwise would the two political government branches of to treat the criminal law as revenue-raising sponsors source. The measure’s included a perhaps darkly suspecting the measure,

wealth of detail in legislature they that, did, unless and the executive some- attempt policy But we how would to avoid their concern. need agree appears idea, with that which to have motivated plaintiffs’ sponsors, in to resolve the measure’s order claims. (3) Although foregoing discussion of subsections (7) disposes and agreement at heart of dis- subsections parties, we add a further and between more Although provi- general it set of observations. has several essentially can as sions, Measure 3 itself be viewed contain- (3) parts: part, encompassing ing first two subsections (6), through protections property out constitutional for sets by concept creating owners a constitutional of civil forfeiture procedural protec- proceedings imposing a number of (and limitations) proceedings; accompanying tions such part, through encompassing the second subsections process collecting an sets out administrative disburs- ing property. parts funds derived from forfeited Both add provisions Constitution; neither new existing rights provisions. And, as or other constitutional we reasonably parts discuss, can will the two be characterized as containing are related to each various reasoning under set out m.Armatta. other question, Turning “closely it is related” unde- relationship parts: niable that exists between the two (the funding scheme second administrative and disbursal identified) change just place has a in the constitution because (the process change), new and it of the civil forfeiture first process. from In of funds derived that concerns disbursal stronger relationship view, one than rela- our that (or thereof) tionships between the constitutional lack Swett, at Armatta. See 333 Or at issue in Swett and subject (although purportedly same shared 608-09 money change limiting in elections, matter of influence of imposed was not that contribution disclosure change eligibility requirement imposed that related to signature-gatherers); at Armatta, 327 Or 283-84 initiative on changes, including (although right disparate to unanimous protections, jury trials, verdict in murder search-and-seizure right juror qualifications bail, related in sense were to pertained rights implicated during they criminal to that investigation prosecution, relationship that was insuffi- cient to render them related for purposes). foregoing, permis-

From the think it we that also is relationship parts to that sible conclude between the two just sufficiently pass ofMeasure 3 discussed is “close”to mus- ter under Article XVII, is, section 1. That the administrative (7) (11) principally scheme set out in subsections of Meas- relationship proceed- ure 3 bears a close ing provisions to the civil forfeiture set out in subsections because it pro- would have no reason existence were it not for those (i.e., visions. The former scheme administrative it) money flowing wholly into and out of derives from the lat- (i.e., proceeding provisions) ter the forfeiture and from no other source. stated,

For the reasons we hold that Measure 3 does “separate-vote” requirement not contravene the of Article contrary holding Appeals XVII, section 1. The of the Court of was error. It must be reversed.6 Appeals

The decision ofthe Court of is reversed. The judgment of the trial court is affirmed. specially concurring.

DURHAM, J., plurality I concur with the decision that the Appeals holding Court erred in that Ballot Measure 3 (2000) was invalid under XVII, Article section of the Oregon provides, part: Constitution, which

“When two or more amendments shall be submitted manner aforesaid to the voters of this state at the same noted, plaintiffs Appeals As also advanced the notion in the Court “single-subject” IV, Measure 3 violated the limitation found in Article section l(2)(d), However, l(2)(d), applies Constitution. section which to stat utory amendments, demanding enactments as well as is less than separate-vote requirement XVII, Armatta, of Article section 1. See 327 Or at (so stating). fact, passes a constitutional amendment muster under IV, pass almost definition will muster under Article sec l(2)(d). (stating separate-vote requirement encompasses tion See id. at 277 single subject). notion that a constitutional amendment must contain a We IV, plaintiffs’ arguments l(2)(d), therefore hold that under Article also are not well taken. It follows that the case need not remanded be Court of Instead, Appeals proceedings. judgment for further we can affirm the of the trial opinion. court this they that each amendment

election, shall be so submitted separately.” shall be votedon reasoning agree that with all the

However, I do not sepa- employs plurality I to reach its conclusion. write the rately agreeing plurality’s my explain reasons for with conclusion. ultimate question plurality here, i.e., only subject properly embrace one and matters connected * * *

therewith. separate-vote by contrast, requirement, “The focuses amendment, upon the form of submission of an as well as constitution, by potential change existing requir- the to the ing that two or more constitutional amendments voted be is, upon separately. speaking That in addition to to the form submission, separate-vote requirement of the addresses the proposed modify extent to which a amendment would the existing significantly constitution. That is different from wording which single-subject requirement, upon only focuses in isolation ment in the text of a amend- requiring that it single subject. embrace a “* * * Indeed, because the requirement is law, concerned with a change to the fundamental notion upon people that the should be able to vote separately separate

each amendment should come as sur- no prise. short, In the requirement safeguard serves as a is fundamental to the concept of a constitution.” in (Emphases original.)

Consistently Armatta, with that from passage we must bear in mind the different ways which the separate- vote and single-subject provisions apply. we particular, must endeavor not to blur the distinctive protections those provisions on the impose process amending the con- by stitution initiative.

Armatta drew attention the fact that the consti- tution does not define the term “amendment”:

“Although XVII, 1, does not define what is meant ‘two or more it important amendments/ upon potential change note that the text focuses constitution, existing by requiring that two or more consti- upon separately.” tutional amendments be voted Id. at 263 That statement is undoubt- (emphases original). However, correct. it leaves of the cor- edly open question 1, rect of Article in two application separate that are in this an pertinent problem contexts case: amendment that modifies or repeals existing (2) an amend- by implication; either

wording expressly that does not to the constitution wording ment that adds new existing constitu- operation or otherwise affect modify tional provisions.

The Armatta court’s discussion of two early Oregon to that issue. on the answer light cases sheds at least some v. Payne, noted that State 195 Or court “the fact that a (1952), pro- 244 P2d 1025 confirmed that contains more than one sec- constitutional amendment posed as a amend- its submission preclude tion does ment.” Armatta at 268. in.Armatta the court observed that,

Additionally, al., v. et 576, 581, 276 P2d 220 Newbry Baum had stated: court prohibit vote does not separate requirement] “[The which would affect adopting from an amendment people ** * At implication. than article or section more one oftwo amendments on two prohibits it the submission most impossible to make it subjects in such manner as different fact, if it will as to each. The express the voters to one, their may have amendment reapportionment be that the constitution, would than one section of the amended more immaterial.” be the Baum the court in holding, summarizing

Armatta stated: First, it dem-

“Baum stands following principles. for the require- separate-vote the purpose of onstrates upon separate the voters to decide ment is to allow differently, Arti- Stated changes separately. constitutional cle aimed at ensur- 1, imposes requirement a their will in one vote express the voters are able to ing that with change. That is consistent only one constitutional as to separate-vote requirement, analysis our textual upon the nature that the focuses which noted constitution, pro- as well as change existing it is submit- amendment takes when cedural form that an that, by Second, Baum demonstrates people. ted to the affect may amendment single constitutional implication, a offending the without provisions one or more constitutional separate-vote requirement. Baum Finally, suggests to some encompasses, separate-vote requirement single contain a extent, the that a amendment must notion ” single‘subject.’ at Armatta, 269. Payne,

The that Armatta drew from conclusion permissible single quoted A above, seems unremarkable: summary may multiple contain sections. The amendment part problematic, in because it Baum in Armatta is more repeated conclusory, ambiguous certain statements of example, in Baum and Armatta indi- court Baum. For cate that both single may amendment “affect”one constitutional violating sepa- or more constitutional without requirement. Armatta, Baum, 581; rate-vote 200 Or at explain, however, at That whether the term Or 269. does (1) repeal “affect” refers to a modification or of one or more (2) existing provisions; constitutional or an addition of word- ing existing provision repealing to an constitutional without modifying existing wording; or both of the above. appears

Moreover, in court, it that the Armatta sum- marizing principle Baum, i.e., final that it from drew ” single ‘subject!,]’ “a amendment must contain “[a]t Or at modified the statement in Baum that most separate requirement] prohibits [the vote the submission of subjects in two amendments on two different such manner as impossible express to make it for the voters to their will as to holding Baum, each.” 200 Or at 581. That restatement my notable, view, because it did not Baum is correct require- repeat the notion from Baum that the solely applies multiple amendments that concern dif- ment ferent ment that a “subjects.”1 require- source for the subject amendment contain one 1Notwithstanding in Armatta of the comments the selective restatement Baum, 570, 5, Hartung Bradbury, n 33 P3d 972 this court said in v. 332 Or petitioners’ that it declined the light ofArmatta v. Kitzkaber “invitation to revisit this court’s decision Baum * * suggests Contrary petitioners’ arguments, nothing in Armatta *. indeed, favorably incorrectly; Baum for the

Baum was decided Armatta cites XVII, 1, proposition ‘imposes requirement aimed at Article section ensuring express one their will in one vote as to that the voters are able to change.’ Armatta, at 269.” However, overtly nor overrules Baum. It is true that Armatta neither criticizes Hartung demonstrate the of the Baum case in.Armatta and the court’s summaries say scope the to endorse all that Baum had to about court’s disinclination separate-vote requirement. properly IV, matters connected therewith is Article l(2)(d), XVII, not section 1. point. Armatta,

Armatta itself illustrates that proposed changed constitutional amendments the effect of existing provisions. terms of several constitutional proposal separate-vote court held violated the requirement. pro- Armatta, 327 Or at 284. The fact that the posed probably germane constitutional amendments were subject, rights proba- i.e., one victims, of crime and thus bly single-vote requirement IV, satisfied the in Article l(2)(d), point. put in. it, was beside the As the court Armatta “Although hypothetical the court in Baum referred to a containingmultiple ‘subjects,’ amendment the courtdidnot proposed single that, state if a amendment contains a sub-

ject, then it also must be deemed to be a amend- ment.” expressly reject

Id. at 274. Armatta went on to the state’s argument separate- that a amendment satisfies the requirement single-subject require- vote if it satisfies the ment. Id. at 277. observing prior

After that the cases were “lacking analysis[,]” in detailed id. at the Armatta court stated: proper inquiry “We conclude that the is to determine adopted, proposal

whether, if wouldmake two or more changes to the constitution that are and that substantive proposal are not If the related. would effecttwo or closelyrelated, more that are substantive proposal Arti- violatesthe prevent cle it section because would the votersfrom expressing opinions proposed change their as to each separately.” difficulty applying Id. at 277. The court had no that test in clearly changed Armatta, because the initiative measure numerous of the state constitution. substance of “easy” spent an case, Because Armatta was court opinion attempting explain time in it arrived at no its how separate-vote criteria the two announced “substantive”

519 they applied. “closely However, it soon related,” or how causing criteria were confusion. became evident those Keisling, App 394, 167 Or 999 P2d 1229 In Dale v. (2000), satisfy Appeals opined that, to the two the Court of Armatta, two or more substantive criteria announced changes to the constitution would have to be so proposed nec- that a in favor of one amendment related vote essarily imply Id. at 401.1 would a vote favor of other. “necessary implication” test. refer to that test as the challenge Measure 2002, this court addressed a to separate-vote provision. In under the Lehman v. Bradbury, con- 231, 37 P3d this court term for vari- cluded that Measure which concerned limits public multiple officials, ous amendments to the embodied separate-vote requirement. constitution violation attempted apply The trial court in Lehman had “necessary implication” appeal, test from Dale. On Secretary complained “closely of State that the related” cri- required terion from Armatta clarification. at 242. The Id. Secretary urged adopt following of State the court to test determining multiple whether amendments to the consti- “closely tution are related”: ‘closely

“[T]wo or more to the constitution are they present related’ if are logically so interrelated as to one discrete, specific, policy cohesive choice.” Id. accept the test that the Secre-

This court refused tary stating: offered, of State apparently

“Defendant that Armatta needs believes However, defendant’s ‘clarification’ adopting clarification. potentially permitting would mean that we were our task degenerate into an endless under Article adverbs, adjectives war of each battle of which would on which- explain involve further efforts to and elaborate adjectives used in the next ever set of and adverbs has been that we would not preceding case. That does not mean existing an ana- party’s proposed reformulation of accept lytical test, appeared if it that the test would be proffered better toolto use in future cases.Defendant’s test simply appear doesnot to us to be a better tool.” rejected “necessary implication” Id. Lehman test from Secretary adjective-laden Dale as well as the test that the State offered. agree proffered

I tests were flawed. In those subjective and, thus, addition to their standardless charac- they requirement that Armatta ter, did not reflect the core correctly separate-vote requirement: in the A had discerned embody change” particular constitutional measure must “a “express that will their will in one vote as to allow voters to only change.” Armatta, one 327 Or at 269. constitutional easily proposed

Lehman concluded that Measure 3 wording multiple pro- substantive of different Or at 244. The Lehman, visions of the constitution. analysis stopped because, the there, could have under core separate-vote rule, this court construed as par- “a Armatta, that rule in Measure 3 failed to offer voters change” ticular which the voters could constitutional about express their will one vote. proceeded inquire

However, Lehman whether multiple were substantive constitutional amendments “closely acknowledged Id. The that Armatta related.” court explained “closely had what the related” criterion meant. However, Id. the court took note of several of the observa- proposed tions that the Armatta court made about the meas- that those comments ure that it examined and concluded regarding “closely legal were themselves additional related” criterion. tests consequence conclusion, As a of that Lehman “closely apply announced that the court would related” separate ask First, criterion on two levels. court would provisions multiple whether constitutional “closelyrelated.” Id. at 246. measure modified are themselves Second, the court would ask whether the constitutional proposed in the measure are themselves embodied applying multiple “closely tests, the After those related.” Id. that Measure 3 violated the court concluded requirement. Id. at 250. ultimate conclusion in Lehman remains court’s plainly

persuasive many ways, 3 was as to me. In Measure separate-vote requirement the meas- as was violative However, the Lehman court’s ure addressed in Armatta. “closely recon- related” criterion deserves elaboration of sideration for several reasons. prohibits

First, XVII, the submis- sion to the voters of more than one amendment to the consti- tution for a multiple vote. It does not invite the submission of judges if decide that the amendments for one vote affected or the amend- By relationship ments themselves have a that is “close.” opening multiple the door to the substantive submission single vote, constitutional amendments for a the court risks protection important the emasculation of the that Article embodies. incorpo- Second, the court’s reliance on a test that multiple applications subjective, rates phrase simply of a court-created public perception

feeds an unfortunate judges personal predilections applying execute their hardly imagine phrase the constitution. One can more lacking objective elastic, or more foundation, some than (and “closely originally correctly) related.” The court disposing argu- intended that criterion as a means of of the any change ment that to more than a word in the con- stitution would stated, XVII, violate Article section 1. As Lehman any separate-vote imperative “[I]n inquiry, it is that we any

remain aware that amendment to the constitution wording change involves of that document. some to the every change wording However, one-word separate were, If constitution is a ‘amendment.’ it then happen amendments to the constitution would have to word-by-word, people’spower to amendthe and the consti- hamstrung.” tution wouldbe analysis Id. at 240. The court should restore that focus to its wording proposed change is a of whether a in constitutional separate amendment. asking proposed

Third, whether several amend- provisions a “close ments to different constitutional share relationship” inquiry is, substance, an into whether the proposals subject properly embrace one and matters con- subject. differently, any attempt nected to that Stated to com- pare multiple proposed amend- and contrast the content of multiple provisions quickly ments to devolve into an effort to discover a common theme or will

policy component parts promote. choice that the tend to The differ- points plurality ences in the of discussion offered good example. respective the dissent in this case are a The opinions over the elements of the instant differ whether subject. germane But measure are or are not that to common inquiry properly single-subject provi- from the results separate-vote provision. plurality’s present sion, not the conception “closely line ofthe related” test thus blurs the separates requirements. those distinctive constitutional To repeat, requirements. confusing separate legal we must avoid those difficulty that

Two later cases further illustrate the litigants “closely attempting comply face in with the court’s Bradbury, related” criterion. Swett v. P3d sought campaign the defendants to defend a challenge finance disclosure measure from a under Article They agreed XVII, section 1. measure changed operation multiple provisions constitu- they point However, tion. Id. at 607. the endeavored to out that subject, i.e., a common measure’s shared “ ‘they regulations designed prevent, expose control, are or money [and] the influence of in the initiative referendum ” * * * began by noting, process.’ Id. at 608. The court cor- rectly, that: importantly, argument however, “More defendants’ attempt 1 and 3

fails because it is an to showthat sections may subject ofMeasure 62 share the same matter. That may point analysis true, it is in an not be but beside focus, 1. do not as under Article section Defendants they separate-vote challenge, particular in a on the must Lehman at 241-42 made to the constitution. See single-subject (separate-vote requirement, in contrast proposed requirement, extent to which amend- focuseson constitution).” existing ment modifies (emphasis original). Id. at 609 noted, The court cor- also rectly, parties agreed, proposed that, as the measure wording provision altered the of more than one of the consti- tution. But the court then went on to assess whether those multiple alterations of the constitution bore a “close” rela- tionship Despite attempted expla- to each other. the court’s contrary, nation to the that assessment consisted of deter- mining only disparate changes whether the nevertheless policy goal subject. shared some similar or The court con- relationship present. adopt cluded that no such court’s was To inquiry point.” words, own was “beside the Id. Meyer Bradbury, v. 142 P3d 1031 separate-vote question involving this court decided a changed operation measure that the substantive provisions. of two different constitutional However, the court majority concluded that the measure’s alteration of the power paign Oregon legislature regulating ofthe to enact laws cam- “closely

finance was related” to the measure’s altera- people’s right speech. tion of the of free Id. at though permit 301. Even the measure would not the voters to separately multiple, important changes vote on those majority’s discovery “relationship” constitution, the of a sidestep that was “close” allowed it to requirement. plurality

The and the dissent in this case continue They that kind of debate. differ about whether the various policy elements of Measure 3 do or do not share a theme or lawmaking objective. any advance a discernible But consti- (and any degree complexity tutional amendment of most matter) legislation always embody for that almost will mul- tiple policy objectives. Analyzing a measure for the common objectives among parts only its amounts to an assessment of subject properly whether it embraces one connected mat- particular ters, not whether it contains more than one consti- change, tutional as Armatta stated the issue. plurality observing is correct that Measure 3 wording altering

adds new to the constitution without operation any existing provision of the constitution. The parts dissent’s claim that Measure 3’s affect several consti- provisions, analogues provisions, tutional of those complex, unpersuasive. new, one albeit Measure 3 creates existing The fact that Meas- constitution. to the amendment policy address distinctive clauses that ure 3 contains several goals point. subject germain the to its is beside that are plurality for close relation- to search The continues parts ships fails to 3. That search the of Measure between inquiry. separate-vote 3’s The fact that Measure advance the connecting logically unifying principle parts all “a contain only provisions” that Meas- demonstrates in the amendment requirement. single-subject State exrel See ure 3 satisfies (1997) (stating Beesley, 83, 91, 949 P2d 724 326 Or Caleb v. single-subject requirement). Rather, 3 sat- Measure test for isfies the requirement

separate-vote one because it embodies change appears though change in a even compel multiple parts. vot- proposal does not Measure 3 with engage more vote on two or in a ers to meas- existing in one It does not combine constitution. state multiple terms, either of the constitution’s alterations ure implication. expressly 3 Article Thus, Measure satisfies 1. XVII, section plurality’s join Measure in the conclusion

I also single-subject passes under the 3 muster l(2)(d). IV, Article plural- I in the above, concur the reasons stated For Appeals ity’s and to affirm the Court of to reverse decision judgment of the trial court. dissenting.

KISTLER, J., abrupt departure plurality’s marks an decision The require- applying court’s cases from this Oregon Constitution. 1, of Article ment of parts plurality Today, all the various concludes pages oftext four adds almost 3 which Ballot Measure “closely each other related” to Constitution, are comply 1. It is worth XVII, section with and thus Among conclusion. pausing of that the breadth to consider proce- things, new substantive Measure 3 enacts other subject property persons for- is protections whose dural pro- using legislature prohibits forfeiture from feiture, it imposes purposes, on new limits it law enforcement ceeds for

525 cooperation, new, constitu- and it creates and federal state proceedings. tionally agency monitor forfeiture based provi- plurality all those various concludes that my view, not to each other. sions are related plurality’s the the terms, on its own but the plurality decision incorrect today fairly with

cannot reconcile its decision 49 Or P2d Kitzhaber, v. decisions Armatta (1998), (2002). Bradbury, 37 P3d and Lehman v. imposing that a measure This court held Lehman changes to made two term limits on state and federal officials 3 con- related. Measure the constitution that were varied than tains more numerous more imposing lim- If term at issue in Lehman. a measure measure scrutiny government under officials did not survive its on I XVII, 3. 1, Article section then neither should Measure respectfully dissent. “[w]hen provides XVII, 1, that, two or * ** shall be to the voters of

more amendments this state that each submitted they election, at the shall be submitted same so separately.” shall on This provision amendment be voted carefully history court reviewed the text and that analy- govern principles that our in.Armatta clarified separate-vote plurality’s claims. restatement of sis of The principles goes, a accurate as far as it but it omits dis- those holding tinction that critical to the court’s in Armatta was consequently, misapplies Article believe, I case. 1, this plurality recognizes, separate-vote

As imposes a on stricter standard single-subject imposes legisla- test on amendments than Bradbury, explained Meyer tion. As the court v. separate-vote require- 296, P3d 1031 decidedly application ment “has a different and is driven * * * separate-vote requirement [T]he different rationale. safeguard concept of a as a that is fundamental serves constitution.” is the those two standards difference between generality they operate. held, and Armatta at which level of analysis Meyer, “a reaffirmed in this court ‘particular changes must focus on the made to the constitu- ” Meyer, (quoting Bradbury, tion.’ 341 Or at 297 Swett v. (2002)) (emphasis original); Or 609, 43 P3d 1094 single-subject Armatta, 327 Or at 278. Unlike the test, which permits subject courts to define the of a measure at a rela- tively high generality, separate-vote requirement level of requires specific changes courts to focus on the to the consti- specific changes tution and ask whether those are Meyer, related. 341 Or at 297. explained

In Armatta, the court the various changes grouped that Measure 40 made could be under the subject procedure specific changes of criminal but that the relationship that measure made had little to each other. 327 example, changes Or at 283-84. For the court held that two procedure involving criminal that Measure 40 made— right juror qualifications “closely to bail and not —were purposes separate-vote requirement. related” for the Similarly, imposed noted, as the measure at issue in Lehman term limits on state and federal officials. 333 Or at 234-35. explained imposing group The court term limits on each changes of officials constituted two constitutional and that changes nothing those “had little or to do”with each other. Id. though changes at 250. That was true even both could be only slightly higher generality, described, at level of as lim- iting government the terms that all officials could serve.

Following decisions, those I would hold that Meas- ure 3 makes at least four to the constitution that are plurality recognizes, related. As the subsection makes three to the constitution. 341 Or at 508. Two changes greater of those no bear relation to each other than changes the at issue in Armatta and Lehman. Subsection 3 requires, among things, prove other that the state forfeitures convincing requires clear evidence. It also that the for- proportional gave feiture be to the crime that rise to it. As the plurality change analogue notes, the first finds an in the Due Process Clause of the United States Constitution and focuses degree certainty possess on the of that the trier of fact must property. before he or she can forfeit 341 Or at 509. The other change analogues Oregon I, finds in of the Eighth Constitution and the Amendment to the United that the sanction and seeks to ensure Constitution States proportional crime led to forfeiture. that the Meyer, changes at See 341 Or

Both are substantive. changes). (defining “substantive” Neither is separate The standard of related; each addresses concerns. property proof goes the to determination whether meets the necessary the first instance. criteria forfeiture property the the forfeited be sub- that value of stantially goes proportional to crime to the sanction that the may impose a court occur. Stated more after it finds that a forfeiture should liability

succinctly, change goes one to goes while the other to the sanction.

Eighth punishment limitations on Amendment separate process requirements present due of concerns from (3) changes proof. The standards of two subsection present equally separate makes to the Constitution changes aspects proce- If of criminal concerns. the to two juror qualifications sufficiently dure —bail and —were purposes separate-vote requirement, as related for the procedural Armatta, this court held tive then and substan- (3) changes equally that subsection makes are unrelated. standing sufficient, Those two should be say alone, to that Measure 3 makes two substantive any are not there doubt related. Were about (7) Among matter, however, subsection resolves it. other (7) things, authority legislative modifies subsection using prohibits branches; from it them and executive purposes. proceeds See of forfeitures for law enforcement prescribing (holding provision Armatta, at 283 ability legislature’s [ed] juror qualifications “limit cases”). Prohibiting juror qualifications in criminal establish proceeds government using law offorfeitures for from arguably purposes for the removes an incentive enforcement investigations pursue police for- that could lead to criminal (7) reducing the could feitures. thus result Subsection regard to forfeitures, without but it would do so number the validity any particular forfeiture. target. It a different is directed at

Subsection procedural protections grants specific substantive and 528

persons subject property whose a to forfeiture. It seeks to protect persons precede those from that forfeitures a criminal proven certainty, specific conviction, to a are level of are sure, or that To be those two excessive. constitutional completely are not If unconnected. there are fewer opportunities any forfeitures, then will there be fewer for particular premature, unproven, to be forfeiture or excessive. relationship among particular the But the nature (3) (7) changes that subsections and make is far too tenuous qualify as “close.” plurality reaching offers three rationales for a scrutiny. Perhaps different conclusion. None withstands telling plurality most the that rationale rationale is one that the at offers plurality begins explanation end of its decision. The its by stating “essentially 3 Measure contains ** * parts.” plurality two Or at 512. The reasons: (3) (6), “[T]he part, encompassing through first subsections protections property out sets for owners creating ings concept proceed- a constitutional ofcivilforfeiture by imposing procedural protections and a number of (and limitations) accompanying proceedings; in such part, encompassing through second sets out an administrative subsections process collecting for and dis- bursing property.” funds derivedfromforfeited Id. describing parts” matter,

As an initial the “two plurality particular Measure does not “focus on the changes made constitution,” as our cases direct to do us analyzing Meyer, a claim. See 341 Or at 297 (internal (stating principle) quotation omitted; marks emphasis original). plurality groups Rather, numerous headings “procedural protections” under two broad — process.”1 and “administrative analysis plurality’s operate

Not does the at too high generality, a level of but its conclusion that the two under erty derived heading for law To from forfeited illustrate, heading enforcement “procedural protections” of “administrative property.” plurality groups purposes And it process in forfeiture groups prohibition against using limitation “a number of’ discrete collecting proceedings. on federal-state disbursing forfeited rights cooperation under funds prop incorrect on an parts related rests are of the measure parts” concluding 3 are of Measure premise. the “two initially: plurality states related, the (the funding sec- scheme and disbursal “Theadministrative identified) place just change in the constitution has a ond (the change), process first civilforfeiture the new becauseof from that funds derived it concerns the disbursal and process.” “the administrative It then concludes 341 Or at 512. (11)” (7) closely principally in to subsections scheme set out proceeding out in set related to “the civil forfeiture (3) scheme] (6), [the administrative because to subsections provi- it not those existence were have no reason would for for added). (emphasis sions.” Id. at 513 plurality’s premise conclu- The that underlies out in scheme set subsections sion—that the administrative (7) (11) were it not for have no reason for existence” to “would (3) proceedings to set out subsections the civil forfeiture (6) respects. is a First, civil forfeiture incorrect two —is legislature has codi- law, the common which creature of e.g., P2d 119, 127-29, See, Curran, State v. fied. (1981) legisla- (discussing and common-law forfeitures codification); (authorizing forfeiture ORS 475A.020 tive transport property con- manufacture, contain, and used to (3) substances). relatedly, to Second, and subsections trolled (6) Rather, for forfeitures. create a cause of action do not impose, law, of constitutional as a matter those subsections statutory existing procedural protections on and substantive causes of action Contrary premise for civil forfeitures. reasoning, proceed- plurality’s forfeiture that underlies the (3) (6) regardless ings to of whether subsections would occur existed. asserting plurality that the errs in It that the follows (7) (11) to set out subsections

“administrative scheme” pro- the forfeiture without no reason for existence would have (3) (3) (6). subsections to Even without in subsections visions (at (6), equal from the need least still would be an to there regu- perspective) scheme an administrative drafters’ existing statutory proceedings. if the Indeed, late forfeiture by proceedings statutory continued unchecked forfeiture procedural protections and substantive set out in subsections (3) (an then the need for an administrative scheme forth) oversight agency regulate statutory and so forfeiture proceedings greater. would be all the plurality’s holding alternative rationale for (3) (7) persua- subsections and are related nois more plurality begins sive. The its alternative rationale observ- (3) (7) ing say that one can that subsections are not only possible related if “one stands as close as to each provision ignores the others.” 341 Or at 511. The diffi- culty plurality’s metaphor with the use of that is that its own analysis only away possible works if one stands as far as from specific provisions pro- of Measure 3 and describes those general example, plu- visions in the most terms. For rality specific changes s alternative rationale recasts the (3) “assurfance] subsection makes as an that forfeitures are specific changes goal in,” id.; reined that is, it reduces the to a limiting forfeitures. It then describes subsection as “removing government the carrot” from “to treat the criminal revenue-raising law as a source.” Id. precisely Meyer

That is Armatta, what Swett, and explain engages sepa- that a court must not do when it in a analysis; may analysis searching rate-vote it not limit its to policy disparate parts for a common theme or that unites of a Meyer, (explaining measure. See 341 Or at 297 that separate-vote analysis particular “a must focus on the constitution”) (internal changes quotation made to the marks emphasis original). omitted; in Otherwise, a court reduces separate-vote requirement the for constitutional amend- single-subject legislation doing ments to a test for and, so, safeguard concept removes “a that is fundamental to the of a (explaining purpose separate- constitution.” See id. at 296 requirement).2 vote above, explained proper For the reasons focus leads to the conclusion that (3) (7) closely change prohibits subsections are not related. The latter the use proceeds purposes. grants procedural of forfeiture for law enforcement The former protections persons property subject and substantive whose is to forfeiture. A change only constitutional that the limits instances in which forfeitures occur has relationship change grants separate pro

the most tenuous to a persons property subject tections to those whose is to forfeiture. changes Finally, plurality the three holds that the (3) closely It related. are themselves makes that subsection reasons: parts changes ofan are all that it is clearthat “Wethink process judicial in consti- for forfeiture to define the effort (3) part describes The first of subsection tutional terms. that predicate process requiring judicial conviction as part

justify commencing process. out The sets second Finally, process. proof permissible in that standard of the the third (3)provides part forfeiture that the of subsection may process proportional proceed that the forfeiture to the extent underlying Seen in criminal conviction. relationship way, close, between interconnected that the three parts is clear.” at 510. Using reasoning proves plurality’s much. too The reasoning, held in Armatta that the the court could have changes procedure 40 made to criminal that Measure various parts plurality’s words, “all of an effort were, to borrow the trials] judicial process [criminal in constitu- define proce- part tional terms.” One of Measure 40 described setting appropriate bail; another dures that were types that would be admissible described the of evidence yet the number of trials, and another described criminal necessary jurors Armatta, to convict for certain crimes. reasoning, plurality’s “Seen in that Or at 278-80. To use relationship way, the three between close, interconnected changes my parts that subsection view, is clear.” proceedings con- are no more to forfeiture makes changes criminal Measure 40 made to than the nected proceedings. connected, were not If the latter plurality errs in hold- are the here. then neither ing otherwise. hold tack. It would takes a different

The concurrence it does not amendment because Measure 3 is a that modify existing merely provisions. Instead, it constitutional concerning single limitations to the constitution adds new subject turning rea- to the concurrence’s Before —forfeitures. plurality important soning, does note that the it is accept position. plurality’s the concurrence’s Rather, the deci- premise sion rests on the that Measure 3 makes more than change plurality ques- one to the constitution, and the asks a unnecessary tion that the concurrence finds it to reach— changes whether those are related. concurring opinion proposition

The rests on the a measure that adds new matter to constitution, as opposed changing existing provisions, results one change. poses constitutional This court’s decision in Lehman a hurdle for the concurrence. The measure at issue in Oregon Lehman added new to the Constitution. (quoting 333 Or at 234 statement that measure creates “new II”). Sections 19 and 20 in Article One added a new limitation years representatives on the number of that state and sena- changed years tors could serve and also the number of certain statewide officials could hold office.Id. at 243-44. The provision regarding other added a new the number of terms holding that federal officials could serve. Id. at 244. In the measure made two to the constitution, the court explained change modify that the fact that the second did not existing provision an was of no moment. Id. at (explaining problem change that the was not that one new). problem Rather, was was that the two had nothing “little to do”with each other. Id. proposition

Lehman thus stands for the that the fact that a measure adds new matter to the constitution does not question bear on whether it contains more than one enough, amendment. But, if Lehman were not the text of the position. constitution also at odds with the concurrence’s provides Legislative Constitution that both the Assembly people may propose and the amendments to the provides Legis- constitution. XVII, section that the Assembly may propose “[a]ny lative amendment or amend- l(2)(a) Constitution,” ments to this IV, and Article provides people, using power, may that the the initiative * * * “propose amendments to the Constitution.” Article provides “[w]hen that, also two or more * * * amendments shall be submitted of this voters they that so submitted election, shall be at the same state separately.”3 on shall be voted each amendment distinguish between text does The constitutional modify existing provisions amend- that amendments only Rather, to the constitution. that add new material ments the constitutional ments” without distinction. identify any history and “amend-

text refers to “amendment” concurring opinion does not The support it the limitation that that would 1, nor am I aware of XVII, Article would read into any. new matter The fact that a measure adds any saying provide it adds for does not basis constitution only amendment a to that document.

Having held in Armatta higher standard XVII, in Article section sets single-subject test constitutional amendments than for holding consistently legislation, apply we should sets to all the cases that come before us. expand like an accordion from one

should not and contract plurality, uphold however, would Meas- case to the next. single-subject only by effectively employing and, test ure 3 in doing depart application of so, it would from this court’s separate-vote requirement Lehman, and Armatta, consistently, Meyer. apply we should If we those decisions respectfully Appeals I dissent. affirm the Court of decision. join Muniz, J., Balmer, J., De in this dissent- C. ing opinion. separate-vote requirement applies explained in Armatta that the This court legislatively proposed 261. amendments. 327 Or at initiated and both The notes or more amendments to 3 contains two whether Measure “recurring Oregon agree at 504.1 Constitution, is a issue.” many litigants Oregon’s continue to courts and application struggle XVII, section of Article the correct with difficulty part problem, in the however, at least lies 1. applying litigants judges case law this court’s and face unexplained provision. conclu- Inconsistent under that subjective analytical exac- criteria models based on sions and problem. some of those sources I discuss below erbate that proba- simplicity Although analytical in this area confusion. willing bly possible, its to examine the court must be is not evolving developed fully. that it has that the various “tests” law to ensure case apply terms faith- the constitution’s continue to goal con- ultimate in the interest of that It is —accurate interpretation I the observations offer stitutional —that below. Article noted that This court has pro- objective partially another constitutional shares l(2)(d), part: provides, which vision, IV, proposed shall to the Constitution “A law or amendment properly subject connected and matters one embrace therewith.” 250, 275-76, 959 Kitzhaber, Or v. In Armatta separate- regard with this court stated P2d 49 requirements: single-subject vote and requirements purposes are simi- the two “First, behind will not be that the voters serve to ensure lar: Both ‘subjects’ multiple multiple compelled upon con- to vote changesin a vote. stitutional beginning significant that, “However, from it is require- single-subject statehood, differently. discussed, have Aswe worded ments have been * * * upon the con- single-subject requirement focuses amendment, by requiring tent of a law or that it

Case Details

Case Name: Lincoln Interagency Narcotics Team v. Kitzhaber

Court Name: Oregon Supreme Court

Date Published: Oct 19, 2006

Citation: 145 P.3d 151

Docket Number: CC 00C-19878; CA A115401; SC S50900, S50904

Court Abbreviation: Or.