Lincoln Interagency Narcotics Team v. Kitzhaber

KISTLER, J.,

dissenting.

The plurality’s decision marks an abrupt departure from this court’s cases applying the separate-vote requirement of Article XVII, section 1, of the Oregon Constitution. Today, the plurality concludes that all the various parts of Ballot Measure 3 (2000), which adds almost four pages of text to the Oregon Constitution, are “closely related” to each other and thus comply with Article XVII, section 1. It is worth pausing to consider the breadth of that conclusion. Among other things, Measure 3 enacts new substantive and procedural protections for persons whose property is subject to forfeiture, it prohibits the legislature from using forfeiture proceeds for law enforcement purposes, it imposes new limits on *525state and federal cooperation, and it creates a new, constitutionally based agency to monitor forfeiture proceedings.

The plurality concludes that all those various provisions are closely related to each other. In my view, not only is the plurality’s decision incorrect on its own terms, but the plurality cannot fairly reconcile its decision today with the decisions in Armatta v. Kitzhaber, 327 Or 250, 959 P2d 49 (1998), and Lehman v. Bradbury, 333 Or 231, 37 P3d 989 (2002). This court held in Lehman that a measure imposing term limits on state and federal officials made two changes to the constitution that were not closely related. Measure 3 contains more numerous and more varied provisions than the measure at issue in Lehman. If a measure imposing term limits on government officials did not survive scrutiny under Article XVII, section 1, then neither should Measure 3. I respectfully dissent.

Article XVII, section 1, provides that, “[w]hen two or more amendments shall be submitted * * * to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately.” This court carefully reviewed the text and history of that provision in. Armatta and clarified the principles that govern our analysis of separate-vote claims. The plurality’s restatement of those principles is accurate as far as it goes, but it omits a distinction that was critical to the court’s holding in Armatta and consequently, I believe, misapplies Article XVII, section 1, in this case.

As the plurality recognizes, the separate-vote requirement imposes a stricter standard on constitutional amendments than the single-subject test imposes on legislation. As the court explained in Meyer v. Bradbury, 341 Or 288, 296, 142 P3d 1031 (2006), the separate-vote requirement “has a different application and is driven by a decidedly different rationale. * * * [T]he separate-vote requirement serves as a safeguard that is fundamental to the concept of a constitution.”

The difference between those two standards is the level of generality at which they operate. Armatta held, and this court reaffirmed in Meyer, that “a separate-vote analysis *526must focus on the ‘particular changes made to the constitution.’ ” Meyer, 341 Or at 297 (quoting Swett v. Bradbury, 333 Or 597, 609, 43 P3d 1094 (2002)) (emphasis in original); Armatta, 327 Or at 278. Unlike the single-subject test, which permits courts to define the subject of a measure at a relatively high level of generality, the separate-vote requirement requires courts to focus on the specific changes to the constitution and ask whether those specific changes are closely related. Meyer, 341 Or at 297.

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

Following those decisions, I would hold that Measure 3 makes at least four changes to the constitution that are not closely related. As the plurality recognizes, subsection (3) makes three changes to the constitution. 341 Or at 508. Two of those changes bear no greater relation to each other than the changes at issue in Armatta and Lehman. Subsection 3 requires, among other things, that the state prove forfeitures by clear and convincing evidence. It also requires that the forfeiture be proportional to the crime that gave rise to it. As the plurality notes, the first change finds an analogue in the Due Process Clause of the United States Constitution and focuses on the degree of certainty that the trier of fact must possess before he or she can forfeit property. 341 Or at 509. The other change finds analogues in Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United *527States Constitution and seeks to ensure that the sanction is proportional to the crime that led to the forfeiture.

Both changes are substantive. See Meyer, 341 Or at 298 (defining “substantive” changes). Neither is closely related; each addresses separate concerns. The standard of proof goes to the determination whether property meets the criteria necessary for forfeiture in the first instance. The requirement that the value of the forfeited property be substantially proportional to the crime goes to the sanction that a court may impose after it finds that a forfeiture should occur. Stated more succinctly, one change goes to liability while the other goes to the sanction.

Eighth Amendment limitations on punishment present separate concerns from due process requirements of standards of proof. The two changes that subsection (3) makes to the Oregon Constitution present equally separate concerns. If the changes to two aspects of criminal procedure — bail and juror qualifications — were not sufficiently related for the purposes of the separate-vote requirement, as this court held in Armatta, then the procedural and substantive changes that subsection (3) makes are equally unrelated.

Those two changes should be sufficient, standing alone, to say that Measure 3 makes two substantive changes that are not closely related. Were there any doubt about the matter, however, subsection (7) resolves it. Among other things, subsection (7) modifies the authority of the legislative and executive branches; it prohibits them from using the proceeds of forfeitures for law enforcement purposes. See Armatta, 327 Or at 283 (holding that provision prescribing juror qualifications “limit [ed] the legislature’s ability to establish juror qualifications in criminal cases”). Prohibiting the government from using the proceeds of forfeitures for law enforcement purposes arguably removes an incentive for the police to pursue criminal investigations that could lead to forfeitures. Subsection (7) thus could result in reducing the number of forfeitures, but it would do so without regard to the validity of any particular forfeiture.

Subsection (3) is directed at a different target. It grants specific substantive and procedural protections to *528persons whose property is subject to a forfeiture. It seeks to protect those persons from forfeitures that precede a criminal conviction, that are not proven to a specific level of certainty, or that are excessive. To be sure, those two constitutional changes are not completely unconnected. If there are fewer forfeitures, then there will be fewer opportunities for any particular forfeiture to be premature, unproven, or excessive. But the relationship among the nature of the particular changes that subsections (3) and (7) make is far too tenuous to qualify as “close.”

The plurality offers three rationales for reaching a different conclusion. None withstands scrutiny. Perhaps the most telling rationale is the one that the plurality offers at the end of its decision. The plurality begins its explanation of that rationale by stating that Measure 3 contains “essentially * * * two parts.” 341 Or at 512. The plurality reasons:

“[T]he first part, encompassing subsections (3) through (6), sets out constitutional protections for property owners by creating a constitutional concept of civil forfeiture proceedings and by imposing a number of procedural protections (and accompanying limitations) in such proceedings; the second part, encompassing subsections (7) through (11), sets out an administrative process for collecting and disbursing funds derived from forfeited property.”

Id.

As an initial matter, in describing the “two parts” of Measure 3, the plurality does not “focus on the particular changes made to the constitution,” as our cases direct us to do in analyzing a separate-vote claim. See Meyer, 341 Or at 297 (stating principle) (internal quotation marks omitted; emphasis in original). Rather, the plurality groups numerous changes under two broad headings — “procedural protections” and “administrative process.”1

Not only does the plurality’s analysis operate at too high a level of generality, but its conclusion that the two *529parts of the measure are closely related rests on an incorrect premise. In concluding that the “two parts” of Measure 3 are closely related, the plurality states initially:

“The administrative funding and disbursal scheme (the second change just identified) has a place in the constitution because of the new civil forfeiture process (the first change), and it concerns the disbursal of funds derived from that process.”

341 Or at 512. It then concludes that “the administrative scheme set out principally in subsections (7) to (11)” is closely related to “the civil forfeiture proceeding provisions set out in subsections (3) to (6), because [the administrative scheme] would have no reason for existence were it not for those provisions.” Id. at 513 (emphasis added).

The premise that underlies the plurality’s conclusion — that the administrative scheme set out in subsections (7) to (11) “would have no reason for existence” were it not for the civil forfeiture proceedings set out in subsections (3) to (6) — is incorrect in two respects. First, civil forfeiture is a creature of the common law, which the legislature has codified. See, e.g., State v. Curran, 291 Or 119, 127-29, 628 P2d 1198 (1981) (discussing common-law forfeitures and legislative codification); ORS 475A.020 (authorizing forfeiture of property used to manufacture, contain, and transport controlled substances). Second, and relatedly, subsections (3) to (6) do not create a cause of action for forfeitures. Rather, those subsections impose, as a matter of constitutional law, substantive and procedural protections on existing statutory causes of action for civil forfeitures. Contrary to the premise that underlies the plurality’s reasoning, forfeiture proceedings would occur regardless of whether subsections (3) to (6) existed.

It follows that the plurality errs in asserting that the “administrative scheme” set out in subsections (7) to (11) would have no reason for existence without the forfeiture provisions in subsections (3) to (6). Even without subsections (3) to (6), there still would be an equal need (at least from the drafters’ perspective) for an administrative scheme to regulate statutory forfeiture proceedings. Indeed, if the existing statutory forfeiture proceedings continued unchecked by the *530procedural and substantive protections set out in subsections (3) to (6), then the need for an administrative scheme (an oversight agency and so forth) to regulate statutory forfeiture proceedings would be all the greater.

The plurality’s alternative rationale for holding that subsections (3) and (7) are closely related is no more persuasive. The plurality begins its alternative rationale by observing that one can say that subsections (3) and (7) are not closely related only if “one stands as close as possible to each provision and ignores the others.” 341 Or at 511. The difficulty with the plurality’s use of that metaphor is that its own analysis works only if one stands as far away as possible from the specific provisions of Measure 3 and describes those provisions in only the most general terms. For example, the plurality s alternative rationale recasts the specific changes that subsection (3) makes as an “assurfance] that forfeitures are reined in,” id.; that is, it reduces the specific changes to a goal of limiting forfeitures. It then describes subsection (7) as “removing the carrot” from government “to treat the criminal law as a revenue-raising source.” Id.

That is precisely what Armatta, Swett, and Meyer explain that a court must not do when it engages in a separate-vote analysis; it may not limit its analysis to searching for a common theme or policy that unites disparate parts of a proposed measure. See Meyer, 341 Or at 297 (explaining that “a separate-vote analysis must focus on the particular changes made to the constitution”) (internal quotation marks omitted; emphasis in original). Otherwise, a court reduces the separate-vote requirement for constitutional amendments to a single-subject test for legislation and, in doing so, removes “a safeguard that is fundamental to the concept of a constitution.” See id. at 296 (explaining purpose of separate-vote requirement).2

*531Finally, the plurality holds that the three changes that subsection (3) makes are themselves closely related. It reasons:

“We think that it is clear that the changes are all parts of an effort to define the judicial process for forfeiture in constitutional terms. The first part of subsection (3) describes that judicial process as requiring a predicate conviction to justify commencing the process. The second part sets out the permissible standard of proof in that process. Finally, the third part of subsection (3) provides that the forfeiture process may proceed only to the extent that the forfeiture is proportional to the underlying criminal conviction. Seen in that way, the close, interconnected relationship between the three parts is clear.”

341 Or at 510.

The plurality’s reasoning proves too much. Using that reasoning, the court could have held in Armatta that the various changes to criminal procedure that Measure 40 made were, to borrow the plurality’s words, “all parts of an effort to define the judicial process for [criminal trials] in constitutional terms.” One part of Measure 40 described the procedures that were appropriate in setting bail; another described the types of evidence that would be admissible in criminal trials, and yet another described the number of jurors necessary to convict for certain crimes. Armatta, 327 Or at 278-80. To use the plurality’s reasoning, “Seen in that way, the close, interconnected relationship between the three parts is clear.” In my view, the changes that subsection (3) makes to forfeiture proceedings are no more closely connected than the changes that Measure 40 made to criminal proceedings. If the latter changes were not closely connected, then neither are the changes here. The plurality errs in holding otherwise.

The concurrence takes a different tack. It would hold that Measure 3 is a single amendment because it does not modify existing constitutional provisions. Instead, it merely adds new limitations to the constitution concerning a single subject — forfeitures. Before turning to the concurrence’s reasoning, it is important to note that the plurality does not *532accept the concurrence’s position. Rather, the plurality’s decision rests on the premise that Measure 3 makes more than one change to the constitution, and the plurality asks a question that the concurrence finds it unnecessary to reach— whether those changes are closely related.

The concurring opinion rests on the proposition that a measure that adds new matter to the constitution, as opposed to changing existing provisions, results in only one constitutional change. This court’s decision in Lehman poses a hurdle for the concurrence. The measure at issue in Lehman added new provisions to the Oregon Constitution. 333 Or at 234 (quoting statement that measure creates “new Sections 19 and 20 in Article II”). One added a new limitation on the number of years that state representatives and senators could serve and also changed the number of years that certain statewide officials could hold office. Id. at 243-44. The other added a new provision regarding the number of terms that federal officials could serve. Id. at 244. In holding that the measure made two changes to the constitution, the court explained that the fact that the second change did not modify an existing constitutional provision was of no moment. Id. at 250 (explaining that the problem was not that one change was new). Rather, the problem was that the two changes had “little or nothing to do” with each other. Id.

Lehman thus stands for the proposition that the fact that a measure adds new matter to the constitution does not bear on the question whether it contains more than one amendment. But, if Lehman were not enough, the text of the constitution also is at odds with the concurrence’s position. The Oregon Constitution provides that both the Legislative Assembly and the people may propose amendments to the constitution. Article XVII, section 1, provides that the Legislative Assembly may propose “[a]ny amendment or amendments to this Constitution,” and Article IV, section l(2)(a) provides that the people, using the initiative power, may “propose * * * amendments to the Constitution.” Article XVII, section 1, also provides that, “[w]hen two or more amendments shall be submitted * * * to the voters of this *533state at the same election, they shall be so submitted that each amendment shall be voted on separately.”3

The constitutional text does not distinguish between amendments that modify existing provisions and amendments that add only new material to the constitution. Rather, the constitutional text refers to “amendment” and “amendments” without distinction. The concurring opinion does not identify any history that would support the limitation that it would read into Article XVII, section 1, nor am I aware of any. The fact that a measure adds only new matter to the constitution does not provide any basis for saying that it adds only a single amendment to that document.

Having held in Armatta that the separate-vote requirement in Article XVII, section 1, sets a higher standard for constitutional amendments than the single-subject test sets for legislation, we should apply that holding consistently to all the cases that come before us. Article XVII, section 1, should not expand and contract like an accordion from one case to the next. The plurality, however, would uphold Measure 3 only by effectively employing a single-subject test and, in doing so, it would depart from this court’s application of the separate-vote requirement in Armatta, Lehman, and Meyer. If we apply those decisions consistently, we should affirm the Court of Appeals decision. I respectfully dissent.

De Muniz, C. J., and Balmer, J., join in this dissenting opinion.

To illustrate, the plurality groups a prohibition against using forfeited property for law enforcement purposes and a limitation on federal-state cooperation under the heading of “administrative process for collecting and disbursing funds derived from forfeited property.” And it groups “a number of’ discrete rights under the heading of “procedural protections” in forfeiture proceedings.

For the reasons explained above, a proper focus leads to the conclusion that subsections (3) and (7) are not closely related. The latter change prohibits the use of forfeiture proceeds for law enforcement purposes. The former grants procedural and substantive protections to persons whose property is subject to forfeiture. A constitutional change that limits the instances in which forfeitures occur has only the most tenuous relationship to a change that grants separate constitutional protections to those persons whose property is subject to forfeiture.

This court explained in Armatta that the separate-vote requirement applies to both initiated and legislatively proposed amendments. 327 Or at 261.