Filed: September 19, 2002

STATE OF OREGON,

Respondent on Review,

v.

RONALD WAYNE SELNESS,

Petitioner on Review.

STATE OF OREGON,

Respondent on Review,

v.

CYNTHIA LAVONNE MILLER,

Petitioner on Review.

On review from the Court of Appeals.*

Argued and submitted March 8, 2000.

Peter Gartlan, Chief Deputy Public Defender, Salem, argued the cause for petitioners on review. With him on the brief was David E. Groom, State Public Defender.

Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Carson, Chief Justice, and Gillette, Durham, Leeson, and Riggs, Justices.**

GILLETTE, J.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

*Appeal from Multnomah County Circuit Court, Joseph F. Ceniceros, Judge. 154 Or App 579, 962 P2d 739 (1998).

**Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case; Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case; De Muniz and Balmer, JJ., did not participate in the consideration or decision of this case.

GILLETTE, J.

In this criminal case, we are asked to determine whether a trial court correctly dismissed indictments charging defendants with various counts of possession, manufacture, and delivery of a controlled substance. The trial court dismissed the indictments on the ground that prosecution of the charges in the indictments would violate principles against former jeopardy, because the state already had subjected defendants to jeopardy by virtue of the judicial forfeiture of their home in connection with the same offenses. On the state's appeal, the Court of Appeals reversed, holding that defendants had waived any right to base a former jeopardy claim on the forfeiture, because they had chosen not to take part in the forfeiture proceeding. State v. Selness/Miller, 154 Or App 579, 586-88, 962 P2d 739 (1998). We allowed defendants' petition for review and now conclude that the forfeiture proceeding to which defendants' property was subjected cannot form the basis for a successful former jeopardy defense under Article I, section 12, of the Oregon Constitution, or for a successful double jeopardy defense under the Fifth Amendment to the United States Constitution. (1)

The following facts appear to be undisputed. On November 9, 1994, the Portland police sought and obtained a warrant to search defendants' home. In the course of the ensuing search, the police found marijuana plants, hydro pumps, lights, and other evidence of a marijuana growing operation. The police immediately seized the plants and equipment. Shortly thereafter, the City of Portland (City) filed a complaint in rem under Oregon Laws 1989, chapter 791, (2) seeking judicial forfeiture of the plants, equipment, and, most importantly, defendants' home. (3) The complaint asserted that the home and other items were subject to forfeiture either because they were the proceeds of "prohibited conduct" under the statute -- that is, the manufacture, possession, and delivery of controlled substances -- or because defendants had used them to facilitate such "prohibited conduct." (4)

Defendants owned the home jointly and had an equity interest in it of between $60,000 and $63,000. As persons with an interest in the property, they were entitled to file a claim in the proceeding as provided in Oregon Laws 1989, chapter 791, section 7(2)(a), (5) to plead affirmative defenses to the forfeiture under Oregon Laws 1989, chapter 791,section 8, (6) and to seek mitigation under Oregon Laws 1993, chapter 699, section 13. (7) The state gave notice to defendants of the forfeiture complaint, and, on a number of occasions, various Multnomah County deputy district attorneys told defendants that they should file a claim and post a bond if they wished to contest the forfeiture. The City also offered to enter into a stipulated judgment under which defendants would agree to pay the City $15,000 and to waive any claim or defense arising out of the seizure of the home in consideration for the City releasing any right or claim to the home. Defendants ultimately declined the stipulated judgment offer because they did not want to waive any rights or claims, including the right to raise a former jeopardy defense.

Defendants did not file a claim or otherwise appear in the forfeiture proceeding. In February 1995, when Multnomah County prosecutors informed defendants that they would be seeking a default, defendants responded that they would not contest the forfeiture. Defendants moved out of the home in late February, and a default judgment was entered on March 17, 1995.

In the meantime, the state had charged defendants with multiple counts of possessing, manufacturing, and delivering a controlled substance, ORS 475.992, based on the November 9, 1994, search. The court arraigned defendants on those charges on March 14, 1995 -- three days before the court entered default judgment in the forfeiture proceeding. At their arraignment, the court assigned defendants court-appointed counsel to defend them in the criminal proceedings. (8)

After the court forfeited their home, defendants moved to dismiss the criminal charges on the ground that prosecution of those charges would violate the prohibitions against former and double jeopardy in the state and federal constitutions. After a hearing on the matter, the trial court granted the motion and dismissed the charges. In its written dismissal order, the trial court determined that the forfeiture had occurred in a different judicial proceeding and that it had resulted from the same acts that were the subject of the criminal charges. From those facts, the trial court ruled that the forfeiture was "punishment" and that further criminal prosecution or punishment respecting the same acts would amount to former jeopardy. The court also held that defendants had not waived their right to raise a former jeopardy defense by failing to appear in the forfeiture action.

As noted, the state appealed the trial court order, and the Court of Appeals reversed. With respect to defendants' state constitutional claim, the Court of Appeals held that defendants had waived any right to base a former jeopardy claim on the forfeiture proceeding by failing to file an answer or otherwise to appear in that proceeding:

"Our decision is based on our interpretation of Oregon Laws 1989, chapter 791. Oregon's civil forfeiture statute provides for mitigation if the court finds the forfeiture excessive. The provision ensures that a civil forfeiture is commensurate with the civil intent of the statute and does not rise to the level of criminal punishment. By failing to avail themselves of the opportunity to present evidence that the civil forfeiture of their home was so severe as to constitute criminal punishment, defendants have forfeited the chance to do so in this criminal proceeding. They cannot now complain that they have been criminally punished for double jeopardy purposes when they made no effort to mitigate the alleged punishment when they had the opportunity to do so."

Selness/Miller, 154 Or App at 586-87 (footnotes deleted). Having concluded that defendants had waived their right to assert a former jeopardy claim under Article I, section 12, the Court of Appeals never reached the substantive question posed by the state's appeal, viz., whether forfeiture of property under Oregon Laws 1989, chapter 791, is or can be "jeopardy" for purposes of a former jeopardy claim under the Oregon Constitution. The court employed a similar rationale with respect to defendants' federal double jeopardy claim. Id. at 588. The court reversed the trial court's judgment. We allowed defendants' petition for review. Defendants argue to this court that prosecution under the indictments is barred by the jeopardy provisions in both the state and federal constitutions, and that they have not waived or forfeited the right to raise a claim under those provisions. We first consider defendants' arguments with respect to the Oregon Constitution. See State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (stating that state constitutional questions will be addressed before federal constitutional questions).

II. FORMER JEOPARDY UNDER ARTICLE I, SECTION 12

A. Waiver

As noted, the Court of Appeals concluded that defendants waived any former jeopardy claim that they otherwise might have had under the Oregon Constitution by failing to appear in the underlying forfeiture proceeding. Selness/Miller, 154 Or App at 584-87. Defendants acknowledge that similar reasoning has led courts in other jurisdictions to refuse to entertain any former jeopardy claim that is based on civil forfeiture proceedings in which the claimant did not appear. See, e.g., United States v. Torres, 28 F3d 1463 (7th Cir), cert den 513 US 1059 (1994) (owner who does not file claim in forfeiture proceeding cannot base double jeopardy claim on that proceeding); United States v. Cretacci, 62 F3d 307 (9th Cir), cert den 518 US 1007 (1995) (same). They argue, however, that those decisions are unpersuasive and should not be followed. Defendants also argue that those decisions are inconsistent with the Oregon former jeopardy provision because they are based on a legal fiction that is not accepted in this state, viz., the theory that in rem forfeiture proceedings do not affect personal rights.

We note, first, that, in holding that defendants had waived their right to assert a jeopardy defense, the Court of Appeals never aligned itself expressly with any of the cases from other jurisdictions that it discussed in its opinion. Rather, that court set out its own theory of implied waiver -- that a homeowner who fails to take advantage of the mitigation procedure provided by the forfeiture statute cannot later complain that the forfeiture that the homeowner suffered was so excessive as to amount to criminal punishment. Selness/Miller, 154 Or App at 586-87.

We agree with the Court of Appeals' waiver analysis, as far as it goes: In our view, defendants have waived their right to argue that, as applied to them, the forfeiture scheme at issue is punitive and counts as "jeopardy" for purposes of Article I, section 12, of the Oregon Constitution. However, that conclusion does not speak to defendants' principal argument, viz., that the overall forfeiture scheme in Oregon Laws 1989, chapter 791, and not just its particular effect in defendants' case, is criminal in nature and effect. The question remains whether defendants' failure to appear waived that argument as well as their as-applied challenge.

To answer that question, we turn to the other theories of waiver mentioned, but not expressly approved, in the Court of Appeals' opinion: (1) that, if no one makes a claim to property in a civil forfeiture proceeding, then that property is ownerless and its forfeiture punishes no one; (2) that an owner who chooses not to become a party to a forfeiture proceeding cannot argue that he or she has been subjected to the hazards of trial and a determination of guilt that are the earmarks of jeopardy; and (3) that the proper time for making a claim of ownership is in the forfeiture proceeding, and the court will not hear a person who has failed to make a claim of ownership at that time to make that claim in a later criminal proceeding for the purpose of asserting former jeopardy. See Selness/Miller, 154 Or App at 584-86 (summarizing theories). All three theories appear to proceed on the premise that a property owner can overcome the civil, in rem label that attaches to forfeiture proceedings, but only if the property owner takes the formal step of appearing and contesting the forfeiture.

We agree with defendants that all those theories place undue importance on a property owner's decision to appear formally in a forfeiture proceeding. To the extent that they rely on a presumption that nonappearing property owners actually have abandoned their property and, therefore, are not affected by the proceeding or the forfeiture, they are not persuasive. Property owners may have many reasons, other than lack of interest, for failing to file a claim in a forfeiture proceeding, including a realistic appraisal of their chances of obtaining a successful outcome and a legitimate desire to avoid self-incrimination.

If, on the other hand, the state's waiver theories rely only on the legal fiction that no ownership interest exists in the absence of a claim, then they are equally unpersuasive. This court never has treated property in in rem proceedings in a manner that ignored the existence or interests of property owners. See, e.g., State v. 1920 Studebaker Touring Car et al., 120 Or 254, 269, 251 P 701 (1927) (automobiles may become subject to in rem forfeiture if used for unlawful purpose, but proceeding must be one in which party who is to be deprived of property is accorded all his constitutional rights).

Realistically, a property owner's decision to file a claim in a forfeiture proceeding under Oregon Laws 1989, chapter 791, has no effect on the essential character of that proceeding. Although it is true that a property owner who files a claim may seek mitigation after a forfeiture is authorized, Or Laws 1993, ch 699,