Legal Objections To Constitutional Concerns Oregon SB6

law OFFICES OF

HOLMES WEDDLE & BARCOTT, P.C.

Alaska, Washington, Oregon, and California

Lakeview Village Center, 310 North State Street, Suite 200

Lake Oswego, Oregon 97034

Telephone: (503) 594-1347 Fax: (503) 496-5796

Robert E. Babcock

e-mail: rbabcock@hwb-law.com

CERTIFIED/RETURN RECEIPT REQUESTED

July 9, 2013

Governor John Kitzhaber

State Capitol Building

900 Court Street, NE, Suite 254

Salem, OR 97301-4047

Re: Senate Bill 6

Dear Governor Kitzhaber:

I write on behalf of the many Oregonians who – without thought of profit – devote their time and energies to saving the lives of animals otherwise doomed to be killed because of policies, practices, or space limitations at large humane organizations and animal control agencies. On their behalf, I request that you not approve Senate Bill 6 and that, instead, you return it to the Senate with written objections pursuant to Article V, Sections 15(a) and 15(b) of the Oregon Constitution.

Sections 10 and 11 of the Bill permit locally designated "enforcement agencies" to require licensing and conduct warrantless inspections of the private property and records of all individuals who (a) solicit or accept donations for their animal rescue efforts and (b) house more than 10 animals in their homes for varying periods of time. The persons subject to these sections include those who – although funding nearly all costs out-of-pocket – either solicit or obtain donations, usually very small amounts of cash or food or veterinary assistance. In my judgment, these provisions are unconstitutional. Legislative Counsel has acknowledged that the constitutional question is "not free from doubt" but has reached a different conclusion. I have attached both Senate Bill 6 and Legislative Counsel's letter dated July 6, 2013.

The key problem with Legislative Counsel's opinion – uncertain though it is – about the constitutional issue is the assumption – one devoid of any legal analysis – that animal rescuers who provide their services in their own homes are "commercial premises" for which constitutional safeguards are reduced. That assumption is misplaced. To the best of my knowledge, every state and federal decision applying the "commercial premises" exception to the requirement that a judicial warrant precede a search of private property has involved a business, not a charitable or personal endeavor. If the distinction between a business and simple "good works" is recognized, Senate Bill 6 will be struck down, but only after all involved incur substantial expense.

One of the intriguing twists to the Bill's poorly crafted definition of an "animal rescue entity" as one who "solicits or accepts donations in any form" is the fact that truly commercial entities – the ones for which profits preclude the need for donations – are not subject to warrantless inspections while those individuals who don't seek to make a dime from their services do face intrusions onto their private property and into their records. This result is not one that should be countenanced by your office.

Thank you for your attention. If you or your staff has any questions, please don't hesitate to contact me. I will provide whatever is requested.

Sincerely,

Robert E. Babcock

cc.

Ms. Liami Reeves

General Counsel

Office of the Governor

Mr. Dmitri Palmeter

Legislative Director

Office of the Governor

Mr. Steve Wolf

Chief Counsel, General Counsel Division

Oregon Department of Justice

1162 Court Street NE

Salem, OR 97301-4096