68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
Enrolled
Senate Bill 386
Sponsored by COMMITTEE ON JUDICIARY
CHAPTER ................
AN ACT
Relating to Oregon Racketeer Influenced and Corrupt Organization
Act; amending ORS 166.725.
Be It Enacted by the People of the State of Oregon:
**************************** SECTION 1. ORS 166.725 is amended
to read:
166.725. (1) Any circuit court may, after making due provision
for the rights of innocent persons, enjoin violations of the
provisions of ORS 166.720 (1) to (4) by issuing appropriate
orders and judgments, including, but not limited to:
(a) Ordering a divestiture by the defendant of any interest in
any enterprise, including real property.
(b) Imposing reasonable restrictions upon the future activities
or investments of any defendant, including, but not limited to,
prohibiting any defendant from engaging in the same type of
endeavor as the enterprise in which the defendant was engaged in
violation of the provisions of ORS 166.720 (1) to (4).
(c) Ordering the dissolution or reorganization of any
enterprise.
(d) Ordering the suspension or revocation of a license, permit
or prior approval granted to any enterprise by any agency of the
state.
(e) Ordering the forfeiture of the charter of a corporation
organized under the laws of this state, or the revocation of a
certificate of authority authorizing a foreign corporation to
conduct business within this state, upon finding that the board
of directors or a managerial agent acting on behalf of the
corporation, in conducting the affairs of the corporation, has
authorized or engaged in conduct in violation of ORS 166.720 (1)
to (4) and that, for the prevention of future criminal activity,
the public interest requires the charter of the corporation
forfeited and the corporation dissolved or the certificate of
authority revoked.
(2) All property, real or personal, including money, used in
the course of, derived from or realized through conduct in
violation of a provision of ORS 166.715 to 166.735 is subject to
civil forfeiture to the state. The state shall dispose of all
forfeited property as soon as commercially feasible. If property
is not exercisable or transferable for value by the state, it
shall expire. All forfeitures or dispositions under this section
shall be made with due provision for the rights of innocent
persons. Forfeited property shall be distributed as follows:
(a)(A) All moneys and the clear proceeds of all other property
forfeited shall be deposited with the State Treasurer to the
credit of the Common School Fund.
(B) For purposes of subparagraph (A) of this paragraph, ' clear
proceeds' means proceeds of forfeited property less costs of
maintaining and preserving property pending its sale or other
disposition, less costs of sale or disposition and, if the
Department of Justice has not otherwise recovered its costs and
expenses of the investigation and prosecution leading to the
forfeiture, less 30 percent of the remaining proceeds of the
property which is awarded to the department as reasonable
reimbursement for costs of such investigation and prosecution.
(b) Any amounts awarded to the Department of Justice pursuant
to paragraph (a) of this subsection shall be deposited in the
Criminal Justice Revolving Account in the State Treasury.
(3) Property subject to forfeiture under this section may be
seized by a police officer, as defined in ORS 133.525 (2), upon
court process. Seizure without process may be made if:
(a) The seizure is incident to a lawful arrest or search or an
inspection under an administrative inspection warrant; or
(b) The property subject to seizure has been the subject of a
prior judgment in favor of the state in a forfeiture proceeding
based upon this section.
(4) In the event of a seizure under subsection (3) of this
section, a forfeiture proceeding shall be instituted promptly.
Property taken or detained under this section shall not be
subject to replevin, but is deemed to be in the custody of the
police officer making the seizure, subject only to the order of
the court. When property is seized under this section, pending
forfeiture and final disposition, the police officer may:
(a) Place the property under seal;
(b) Remove the property to a place designated by the court; or
(c) Require another agency authorized by law to take custody of
the property and remove it to an appropriate location.
(5) The Attorney General, any district attorney or any state
agency having jurisdiction over conduct in violation of a
provision of ORS 166.715 to 166.735 may institute civil
proceedings under this section. In any action brought under this
section, the circuit court shall give priority to the hearing and
determination. Pending final determination, the circuit court may
at any time enter such injunctions, prohibitions or restraining
orders, or take such actions, including the acceptance of
satisfactory performance bonds, as the court may deem proper. The
Attorney General, district attorney or state agency bringing an
action under this section shall be entitled to recover, upon
entry of a final judgment or decree in favor of the state,
attorney fees and costs of investigation and litigation,
reasonably incurred. Amounts recovered may include costs and
expenses of state and local governmental departments and agencies
incurred in connection with the investigation or litigation.
(6) { + (a) + } Any aggrieved person may institute a proceeding
under subsection (1) of this section { + :
(A) If the proceeding is based upon racketeering activity for
which a criminal conviction has been obtained, any rights of
appeal have expired and the action is against the individual
convicted of the racketeering activity; or
(B) If the person is entitled to pursue a cause of action under
subsection (7)(a)(B) of this section + }.
{ + (b) + } In such proceeding, relief shall be granted in
conformity with the principles that govern the granting of
injunctive relief from threatened loss or damage in other civil
cases, except that no showing of special or irreparable damage to
the person shall have to be made. Upon the execution of proper
Enrolled Senate Bill 386 Page 2
bond against damages for an injunction improvidently granted and
a showing of immediate danger of significant loss or damage, a
temporary restraining order and a preliminary injunction may be
issued in any such action before a final determination on the
merits.
(7)(a) Any person who is injured by reason of any violation of
the provisions of ORS 166.720 (1) to (4) shall have a cause of
action for three-fold the actual damages sustained and, when
appropriate, punitive damages { + :
(A) If a criminal conviction for the racketeering activity that
is the basis of the violation has been obtained, any rights of
appeal have expired and the action is against the individual
convicted of the racketeering activity; or
(B) If the violation is based on racketeering activity as
defined in ORS 166.715 (6)(a)(B) to (J), (K) as it relates to
burglary and criminal trespass, (L) to (P), (S), (T) except for
claims arising under ORS 167.087, (U), (V), (X) to (Z), (AA) to
(DD), (LL), (MM) or (PP) + }.
{ + (b) + } { - Such - } { + A + } person shall also
recover attorney fees in the trial and appellate courts and costs
of investigation and litigation, reasonably incurred.
{ - (b) - } { + (c) + } The defendant or any injured person
may demand a trial by jury in any civil action brought pursuant
to this
{ - section - } { + subsection + }.
{ - (c) - } { + (d) + } Any injured person shall have a
right or claim to forfeited property or to the proceeds derived
therefrom superior to any right or claim the state has in the
same property or proceeds.
(8) An investigative agency may bring an action for civil
penalties for any violation of ORS 166.720 (1) to (4). Upon proof
of any such violation, the court shall impose a civil penalty of
not more than $250,000.
(9) A final judgment or decree rendered in favor of the state
in any criminal proceeding under ORS 166.715 to 166.735 shall
estop the defendant in any subsequent civil action or proceeding
brought by the state or any other person as to all matters as to
which such judgment or decree would be an estoppel as between the
state and the defendant.
(10) The Attorney General may, upon timely application,
intervene in any civil action or proceeding brought under
subsection (6) or subsection (7) of this section if the Attorney
General certifies that, in the opinion of the Attorney General,
the action or proceeding is of general public importance. In such
action or proceeding, the state shall be entitled to the same
relief as if the Attorney General instituted the action or
proceeding.
(11) { + (a) + } Notwithstanding any other provision of law, a
criminal or civil action or proceeding under ORS 166.715 to
166.735 may be commenced at any time within five years after the
conduct in violation of a provision of ORS 166.715 to 166.735
terminates or the cause of action accrues. If a criminal
prosecution or civil action or other proceeding is brought, or
intervened in, to punish, prevent or restrain any violation of
the provisions of ORS 166.715 to 166.735, the running of the
period of limitations prescribed by this section with respect to
any cause of action arising under subsection (6) or subsection
(7) of this section which is based in whole or in part upon any
matter complained of in any such prosecution, action or
proceeding shall be suspended during the pendency of such
Enrolled Senate Bill 386 Page 3
prosecution, action or proceeding and for two years following its
termination.
{ + (b) A cause of action arising under subsection (6)(a)(A)
or (7)(a)(A) of this section accrues when the criminal conviction
for the underlying activity is obtained. In addition to any
suspension of the running of the period of limitations provided
for in paragraph (a) of this subsection, the period of
limitations prescribed by paragraph (a) of this subsection is
suspended during any appeal from the criminal conviction for the
underlying activity. + }
(12) The application of one civil remedy under any provision of
ORS 166.715 to 166.735 shall not preclude the application of any
other remedy, civil or criminal, under ORS 166.715 to 166.735 or
any other provision of law. Civil remedies under ORS 166.715 to
166.735 are supplemental and not mutually exclusive.
{ + (13) Notwithstanding subsection (6) or (7) of this
section, a person may not institute a proceeding under subsection
(6) of this section and does not have a cause of action under
subsection (7) of this section if the conduct that is the basis
of the proceeding or action could also be the basis of a claim of
discrimination because of sex that constitutes sexual
harassment. + }
----------
Passed by Senate May 16, 1995
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 6, 1995
...........................................................
Speaker of House
Enrolled Senate Bill 386 Page 4
Received by Governor:
......M.,............., 1995
Approved:
......M.,............., 1995
...........................................................
Governor
Filed by Office of Secretary of State:
......M.,............., 1995
...........................................................
Secretary of State
Enrolled Senate Bill 386 Page 5