Multnomah County v. $5,650 in U.S. Currency

774 P.2d 489, 96 Or. App. 420, 1989 Ore. App. LEXIS 573
CourtCourt of Appeals of Oregon
DecidedMay 10, 1989
DocketA8512-07963; A48456; A8608-04859; CA A48241
StatusPublished
Cited by2 cases

This text of 774 P.2d 489 (Multnomah County v. $5,650 in U.S. Currency) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Multnomah County v. $5,650 in U.S. Currency, 774 P.2d 489, 96 Or. App. 420, 1989 Ore. App. LEXIS 573 (Or. Ct. App. 1989).

Opinion

BUTTLER, P. J.

Multnomah County brought these two forfeiture proceedings pursuant to Multnomah County Ordinance Chapter 7.85.1 In each case, the trial court ordered forfeiture of the [424]*424“defendant” property. “Claimants,” the owners of the property, appeal. We consolidate the separate appeals for the purpose of this opinion.

[425]*425In both cases, County filed a complaint in circuit court alleging that claimants had

“been involved in one or more of the following illegal activities in violation of Multnomah County Code, Section 7.85 et seq:
“(a) The possession of a controlled substance with the intent to deliver.
“(b) The delivery of a controlled substance.”2 (Emphasis supplied.)

The complaints allege further that the defendant property constitutes profits or proceeds of the illegal activities and, in the case of appellant Wells, a claimant, that defendant 1979 Honda had been used by Wells to facilitate the above-mentioned violations.

Claimant Wells was served by mail and appeared by answering the complaint.3 Joyce Stewart, the owner of the BMW, was personally served and also appeared by filing an answer, but does not appeal. After a trial on stipulated facts, in which Wells admitted that the defendant property was proceeds of illegal activity as defined in MCC Chapter 7.85, [426]*426the court entered a judgment that defendant property be forfeited to County.

County served appellant Dossie, a claimant, personally. He appeared by filing an answer. Rose Dossie and Rosalyn Robertson intervened. After trial, the court found that County had established that Dossie had engaged in racketeering activity and that the defendant bank accounts had been used for illegal activities.4 It found that some of the bank accounts were exempt from forfeiture under MCC 7.85.025(B) as proceeds of “unlawful acts defined in ORS 166.720(1) and (2).” It found that the rest of the money, $35,000, was not exempt and was subject to forfeiture and entered a judgment accordingly.

Wells argues that these forfeiture proceedings are barred by ORS 30.315, which provides:

“(1) An incorporated city or any county may, instead of penal enforcement, maintain civil proceedings in courts of this state against any person to enforce requirements or prohibitions of its ordinances or resolutions when it seeks:
“(a) To collect a fee or charge;
“(b) To enforce a forfeiture;
“(c) To require or enjoin the performance of an act affecting real property;
“(d) To enjoin continuance of a violation that has existed for 10 days or more; or
“(e) To enjoin further commission of a violation that otherwise may result in additional violations of the same or related penal provisions affecting the public morals, health or safety.
“(2) The court shall not impose a penal fine in a civil proceeding under subsection (1) of this section.
“(3) The remedies provided by this section shall not be used to enforce any requirement or prohibition of an ordinance or resolution that is also specifically defined as a crime and made punishable under the statutes of this state.
“(4) The remedies provided by this section are supplementary and in addition to those described in ORS 30.310.”

[427]*427In Linn County v. 22.16 Acres, 95 Or App 59, 767 P2d 473, rev allowed 308 Or 158 (1989), we held that, although Linn County had no ordinance expressly prohibiting the conduct defined in its forfeiture ordinance as “illegal,” the ordinance itself implicitly prohibited the conduct giving rise to forfeiture. Because the ordinance incorporated the state definitions of crimes in setting forth what conduct would result in forfeiture, we held that the ordinance prohibited conduct that is defined as a crime under state law. We concluded, therefore, that the forfeiture proceeding brought to enforce the county’s forfeiture ordinance was prohibited by ORS 30.315(3). See also City of Springfield v. $10,000 In U.S. Currency, 95 Or App 66, 767 P2d 476, rev allowed 308 Or 79 (1989). We conclude that the same result is required here. We write to address several contentions made by County concerning the correctness of our decision in Linn County and its applicability to these cases.

County’s first argument is that ORS 30.315 is not relevant to a discussion of MCC Chapter 7.85, because these proceedings are not brought to enforce the prohibitions of a county ordinance.5 We addressed that question in Linn County v. 22.16 Acres, supra, 95 Or App at 64, with respect to the Linn County Ordinance, and we adhere to our reasoning in that opinion. We conclude that the same rationale applies to MCC Chapter 7.85. The complaint filed in each case charges that the claimants acted “in violation of Multnomah County Code, Section 7.85.” (Emphasis supplied.) Although the ordinance does not expressly prohibit the conduct that gives rise to forfeiture, by characterizing certain conduct as “illegal” and imposing sanctions for that conduct, the ordinance implicitly prohibits the activity. See Springfield v. $10,000 In U.S. Currency, supra, 95 Or App at 70. These forfeiture proceedings are brought to enforce those prohibitions.

County contends that, because these proceedings are in rem and not “against a person,” they do not fall within ORS 30.315. County is correct that ORS 30.315 authorizes civil proceedings “against any person” when a county seeks to [428]*428enforce a forfeiture and that these proceedings, nominally, are brought against the property sought to be forfeited. The distinction, County urges, is determinative, because, in an in rem forfeiture proceeding, the illegal use of the property is the focus of a forfeiture and the culpability of the owner or claimant is incidental to that inquiry. Completing that rationale, County contends that ORS 30.315 is intended to apply only to in personam forfeiture proceedings and that ORS 30.315(3) was enacted to prevent equal protection and double jeopardy problems that might arise in the context of those proceedings against a person.

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Multnomah County V. $5,650 In U.S. Currency
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Bluebook (online)
774 P.2d 489, 96 Or. App. 420, 1989 Ore. App. LEXIS 573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/multnomah-county-v-5650-in-us-currency-orctapp-1989.