2007 ORS 475A.091¹
Motion for mitigation
  • order of court

(1) If it has been determined in an action brought under the provisions of ORS 475A.075 (Civil action for forfeiture) that the plaintiff has prevailed as to some or all of the defendant property, the plaintiff shall serve on the claimant a proposed judgment of forfeiture and a statement of costs as described in ORS 475A.120 (Distribution of forfeited property or proceeds by local government) (4) and 475A.126 (Distribution of forfeited property or proceeds by state) (3).

(2)(a) A claimant who has filed a claim to seized property, appeared in the action, and part or all of whose interest in the claimed property is forfeited under the terms of the proposed judgment may file a motion for a mitigation hearing.

(b) A motion under this section must list all evidence not previously received that is relevant to the determination to be made by the court under ORS 475A.100 (Factors to be considered by court in determining if forfeiture excessive). Every argument that the claimant wishes to raise in mitigation must be set out in specific detail in the motion.

(c) Before filing a motion for mitigation, the claimant and the plaintiff must make a good faith effort to confer with one another concerning any issues in dispute. The claimant must file a certificate of compliance with the requirements of this paragraph before the time set for hearing on the motion. The certificate is sufficient if the certificate states that the parties conferred or the certificate contains facts showing good cause for not conferring.

(d) A motion under this section may be filed only after the service of a proposed judgment on the claimants. If a motion for a mitigation hearing is not filed with the court within 14 days after the date the plaintiff serves the proposed judgment on the claimant, the court shall enter judgment.

(3) If a motion for a mitigation hearing is filed, the court shall determine whether any portion of the proposed judgment is excessive in the manner provided by ORS 475A.100 (Factors to be considered by court in determining if forfeiture excessive).

(4) A hearing under the provisions of this section is subject to the Oregon Rules of Evidence.

(5) The court may make such orders as may be necessary to ensure that the forfeiture is not excessive, including but not limited to the following orders:

(a) An order directing that the defendant property, or part of it, be sold and the proceeds of sale distributed between the litigants.

(b) An order directing that the claimant make available to the court other assets, not named as defendants in the forfeiture action, for the purpose of fashioning a judgment that is not excessive.

(6) The court shall make written findings of fact and shall enter written conclusions of law in proceedings under the provisions of this section. [2001 c.780 §35; 2003 c.576 §254; 2005 c.830 §41]

Chapter 475A

Notes of Decisions

Civil forfeiture pro­ceed­ing under this chapter is not sufficiently crim­i­nal in nature to bar on state or federal double jeopardy grounds later pros­e­cu­­tion for prohibited con­duct that justified forfeiture. State v. Selness/Miller, 334 Or 515, 54 P3d 1025 (2002)

1 Legislative Counsel Committee, CHAPTER 475A—Civil Forfeiture, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­475a.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 475A, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­475aano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.