Ward v. Dehaan

FILED: May 25, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

JASON MCKINLEY WARD,

Petitioner,

v.

BEN DEHAAN, ET AL.,

Respondent.

A123754

Judicial Review from Department of Corrections.

Submitted on record and briefs May 6, 2005.

Jason McKinley Ward filed the briefs pro se.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Paul L. Smith, Assistant Attorney General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Linder and Ortega, Judges.

PER CURIAM

OAR 291-203-0010 to 291-203-0100 and OAR 291-105-0005 to 291- 105-0100 held valid.

PER CURIAM

Petitioner, a prison inmate, challenges various Department of Corrections administrative rules pursuant to ORS 183.400. In particular, he asserts that various provisions authorizing the recoupment of costs of inmate care set out in OAR 291-203-0010 to 291-203-0100, and other provisions authorizing imposition of disciplinary fines set out in OAR 291-105-0005 to 291-105-0100, violate Article III, section 1, and Article XV, section 10, of the Oregon Constitution, and are also preempted under provisions of federal law. We reject petitioner's challenges and write only to address his challenge under Article XV, section 10. (1)

Respondent argues, and we agree, that Article XV, section 10, is inapposite for either of two reasons. First, this court struck down Article XV, section 10, in Lincoln Interagency Narcotics Team v. Kitzhaber, 188 Or App 526, 72 P3d 967 (2003), rev allowed, 336 Or 376 (2004). Second, that provision applies only to "civil forfeiture proceeding[s]," and none of the challenged rules implicates a civil forfeiture proceeding.

OAR 291-203-0010 to 291-203-0100 and OAR 291-105-0005 to 291-105-0100 held valid.

1.  Article XV, section 10(3), provides, in part:

"No judgment of forfeiture of property in a civil forfeiture proceeding by the State or any of its political subdivisions shall be allowed or entered until and unless the owner of the property is convicted of a crime in Oregon or another jurisdiction and the property is found by clear and convincing evidence to have been instrumental in committing or facilitating the crime or to be proceeds of that crime."