834 P.2d 526 | Or. Ct. App. | 1992
In this civil forfeiture case, the state appeals the trial court’s order granting claimant’s motion for summary judgment and dismissing the case with prejudice. The state assigns error to the trial court’s conclusion that the state had not commenced the action within the time set by the forfeiture laws. We reverse and remand.
Claimant’s real property was seized on June 26 or 27, 1990. The state filed a complaint seeking forfeiture pursuant to Oregon Laws 1989, chapter 791, on July 25,1990, but it did not serve claimant with a summons or a copy of the complaint.
We begin by setting out the various statutes and rules that the parties argue control this case.
ORS 12.020(1) provides, in relevant part:
“[F]or the purpose of determining whether an action has been commenced within the time limited, an action shall be deemed commenced as to each defendant, when the complaint is filed, and the summons served on the defendant * * * 9i
Oregon Laws 1989, chapter 791, section 7, concerns procedures for forfeiture actions against real property.
“A civil action in rem must be brought if the property is real property * * *.
“(1) [T]he action shall be commenced within 30 days of seizure.
“(2) An action is commenced by filing a complaint. * * *
*342 “(3) All persons known to have an interest in the property, including any claimant, shall be served with a true copy of an inventory of the property, summons and complaint as provided in ORCP 5 and 7 D. * * *
“(4) The action shall be governed by the Oregon Rules of Civil Procedure to the extent that they do not conflict with specific provisions of this Act.”
ORCP 5 reads, in relevant part:
“A judgment in rem may affect the interests of a defendant in the status, property, or thing acted upon only if a summons has been served upon the defendant pursuant to Rule 7 or other applicable statute.” (Emphasis supplied.)
As we understand claimant’s argument, it is that chapter 791, section 7, when read as a whole, requires that a complaint must be filed and that a summons and a copy of the complaint must be served on the claimant to commence an action. According to claimant, any other construction would make the forfeiture laws inconsistent with the Oregon Rules of Civil Procedure and ORS 12.020. That argument is not persuasive.
As is clear from the language of the forfeiture law, a civil action in rem seeking the forfeiture of real property used to facilitate “prohibited conduct” “is commenced by filing a complaint.” Or Laws 1989, ch 791, § 7(2). There are no other requirements within that act for commencing an action. The requirement in section 7(3) that ‘ * [a]ll persons known to have an interest in the property” be served as required by ORCP 5 and 7D is not an additional requirement for the commencement of an action. If the state files a complaint within 30 days after seizing the real property, it has commenced the action for purposes of that time limitation. The state must then serve all persons with an interest in the property in order to establish the authority of the court to affect the interests of those persons in the property. ORCP 5.
We need not consider whether our interpretation of the forfeiture laws is consistent with ORCP, because section 7(4), quoted above, takes the forfeiture proceeding out of those rules, if they are inconsistent with the forfeiture law.
We next consider whether ORS 12.020(1), which requires that the prosecuting party file a complaint and serve
Reversed and remanded.
Claimant was eventually served with a summons and a copy of the complaint 100 days or more after his property was seized.
Oregon Laws 1989, chapter 791, is not codified in the Oregon Revised Statutes, but is published as a note preceding ORS 166.005. Chapter 791 stands repealed on December 31,1993. It authorizes and provides procedures for forfeiture of real and personal property “which is used, or intended to be used, in any manner or part, to commit or facilitate in any manner the commission of prohibited conduct.” Or Laws 1989, ch 791, §3(7).
The legislature has expressed an intent that forfeitures be conducted according to the provisions of Oregon Laws 1989, chapter 791. Section 1(2) provides, in relevant part:
“[T]he Legislative Assembly adopts the provisions of this Act as the sole and exclusive law of the state pertaining to the forfeiture of real and personal property based upon prohibited conduct * * *. After the effective date of this Act, no actions for forfeiture shall be initiated except those in compliance with the provisions of this Act.”
