Filed: September 19, 2002

STATE OF OREGON,

Respondent on Review,

v.

PHUNTSOK NGAWANG LHASAWA,

Petitioner on Review.

On review from the Court of Appeals.*

Argued and submitted September 11, 2000.

Samuel C. Kauffman, Portland, argued the cause and filed the brief for petitioner on review.

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds. Solicitor General.

Chin See Ming, of Perkins Coie LLP, Portland, filed the brief for amicus curiae ACLU Foundation of Oregon, Inc.

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 district court is reversed, and the case is remanded to the circuit court for further proceedings.

*Appeal from Multnomah County District Court, Julie E. Frantz, Judge. 159 Or App 667, 979 P2d 774 (1999).

**Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case; Kulongoski, J. resigned on 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.

The City of Portland (the City) has adopted several "civil exclusion" ordinances, under which the City temporarily excludes from designated areas of the city persons who the police have arrested for certain crimes. In the present case, we are asked to decide whether exclusion under one of those ordinances is "jeopardy" for purposes of the former jeopardy provision of the Oregon Constitution or the double jeopardy prohibition in the United States Constitution. If it is "jeopardy," then the person on whom the City has imposed such an exclusion cannot later be prosecuted criminally for the underlying crime. For the reasons that follow, we conclude that exclusion under the ordinance does not create jeopardy. We therefore affirm the Court of Appeals' decision to that same effect.

The following facts are undisputed. In February 1997, defendant was arrested for prostitution, ORS 167.007, a Class A misdemeanor, in an area that the City had designated as a "prostitution-free zone" (PFZ). At the time of the arrest, police issued to defendant a "notice of exclusion" under Portland City Code (PCC) section 14.150.030. (1) The notice stated that, effective six days from the date of the arrest and for a period of 90 days thereafter, defendant was prohibited from entering or remaining in any area of the city that had been designated as a prostitution-free zone. Prostitution-free zones are areas that have been designated as such by the Portland City Council based on the high number of prostitution-related crimes in those areas. PCC