“Double jeopardy prohibits multiple prosecutions as well as multiple punishments.”
How later courts described this case
- “Double jeopardy prohibits multiple prosecutions as well as multiple punishments.”
Written by the judges who cited it.
The opinion
*546 ARMSTRONG, J.,
dissenting.
I join in Judge Haselton’s dissent. I write separately to point out several issues that the case raises but does not decide.
First, the parties and the court have treated the double jeopardy issues exclusively under the federal “same elements” test of Blockburger v. United States, 284 US 299 , 52 S Ct 180 , 76 L Ed 306 (1932). However, both our Supreme Court, under Article I, section 12, of the Oregon Constitution, and our legislature have rejected that test in favor of the “same transaction” test. State v. Brown, 262 Or 442 , 497 P2d 1191 (1972); ORS 131.515. The analysis, and possibly the result, would thus be different under state law from what they are under federal law. Because claimant did not separately analyze the state law issue, I will not now attempt to apply the “same transaction” test to these circumstances.
Second, claimant argues at length that, under the analysis of Brown v. Multnomah County District Court, 280 Or 95 , 570 P2d 52 (1977), he was entitled to full criminal procedural protections in this case. However, in the later case of State v. Curran, 291 Or 119, 128-29 , 628 P2d 1198 (1981), the court held that, while a forfeiture may be criminal in nature, it is essentially civil in form. Although the Supreme Court did not expressly consider the effect of Brown in its decision in Curran, Curran forecloses claimant’s argument until that court revisits the issue.
Finally, I believe that the Supreme Court should revisit the issue, in part because neither Curran nor the federal cases on which it relied consider the limited nature of state forfeiture proceedings at the time of the adoption of the Oregon Constitution. So far as I am aware, the only forfeitures, other than forfeitures of things that were contraband in themselves, that states enforced in 1859 arose from the enforcement of revenue laws; they involved the forfeiture of property as a recompense for violations of laws that, if obeyed, would have provided income to the state in a different (and more regular) fashion. To the extent that states enforced forfeitures for the commission of crimes, the crimes involved were related to the raising of revenue. In contrast, *547 the federal government did enforce forfeitures for the commission of crimes that were unrelated to raising revenue. However, those crimes were crimes that generally were committed on the high seas, such as piracy, and thus were within the federal government’s exclusive admiralty jurisdiction. See, e.g., United States v. Brig Malek Adhel, 43 US (2 How) 210, 11 L Ed 239 (1844).
This history suggests that, to the extent that the Supreme Court decided Curran in the belief that forfeiture proceedings were traditionally civil and thus constitute an historical exception to the criteria that would otherwise determine what is a criminal prosecution under the Oregon Constitution, it may not have fully recognized the issues involved. The Oregon Constitution, properly understood, may not permit civil forfeiture proceedings that are not related to the raising of revenue or to the forfeiture of things that are contraband per se. Because Curran remains in effect and binds this court, it is unnecessary to pursue this point further at this time.