Behnke v. Jordan

550 P.2d 736, 275 Or. 199, 1976 Ore. LEXIS 783

• Court: Oregon Supreme Court
• Decided: June 4, 1976
• Status: Published

Opinions

O’CONNELL, C. J.

Petitioner, Golda Behnke, filed a petition for an alternative writ of mandamus in the circuit court for Multnomah County to require respondent Edmund Jordan, Judge of the Multnomah County District Court, to comply with petitioner’s demand for a jury trial. Respondent demurred. The demurrer was sustained and petitioner appeals.

Petitioner was served with a citation for keeping a vicious dog in violation of. Portland City Code § 13.04.060, which provides as follows:

"(a) It is unlawful for any person to keep or harbor within the city a dog known by said person to be a vicious dog.

"(1) For the purposes of this section a vicious dog is one which has bitten any person or other domestic animals or which has a known propensity to attack or bite human beings or other domestic animals.”

Petitioner demanded a jury trial on the ground that ORS 221.349(1) entitled her to a jury trial. ORS 221.349(1) provides:

"In all prosecutions for any crime or offense defined and made punishable by any city charter or ordinance the defendant shall have the right of trial by jury, of six in number. Juries shall be selected from the latest tax roll and registration books used at the last city election in the same manner in which juries are selected for circuit courts. The verdict of the jury shall be unanimous.”

Petitioner contends that since Portland City Code § 1.01.140 provides for imprisonment up to six months for a violation of any provision of the code, she has a right to a jury trial. Respondent counters with the argument that Portland City Code § 1.01.140 also provides that "* * * [N]o greater penalty shall be imposed than the penalty prescribed by Oregon statute for the same act or omission * * Respondent then points to ORS 609.090 and 609.095, which he contends cover the "same act or omission” as Portland City Code § 13.04.060.¹ A violation of ORS 609.090 subjects the violator to a fine only and not imprisonment,² and therefore the accused is not entitled to a jury trial for a violation of the statute. Respondent argues that since no jury trial is provided for a violation of the statute, no jury trial should be available to the accused for the violation of an ordinance which carries no greater penalty.

If ORS 221.349(1) is applied literally so that in all prosecutions for any offense under any ordinance, the defendant is entitled to a jury trial, petitioner in the present case was denied her statutory right. However, a literal application of the statute produces the incongruous result of guaranteeing a jury trial for the violation of a city ordinance but denying a jury trial for the violation of a statute which is not materially different in its proscription or penalty. It would be unrealistic for us to assume that the legislature intended ORS 221.349(1) to produce such an unreasonable result. ORS 609.090 and Portland City Code § 13.04.060 proscribe virtually the same conduct and, because of Portland City Code § 1.01.140, impose the same penalty. We hold, therefore, that petitioner was not entitled to a jury trial under ORS 221.349(1).

Petitioner next argues that even if petitioner is not entitled to a jury trial in a criminal proceeding, she is entitled to jury trial guaranteed in civil cases by the Oregon Constitution, Art. I, § 17 as limited by Art. VII (Amended), § 3.³ The City of Portland Code § 13.04.070 provides that upon a violation of § 13.04.060 "the court shall order the defendant to remove the dog from the city.” This, petitioner argues, would deprive the petitioner of a valuable property right which could be found to exceed $200 and that she is, therefore, entitled to a jury trial.

A defendant is entitled to a jury trial only in those types of cases in which the right existed at the time of the adoption of our constitution.⁴ At the time of the adoption of the Oregon Constitution "petty and trivial offenses, where penalties were light, and where a speedy and inexpensive mode of procedure was necessary, were triable without a jury.”⁵ Likewise, a jury trial was not guaranteed where it was necessary in the interest of public health, safety or morals to destroy, forfeit, or abate to destroy an owner’s property through summary proceedings.⁶ The present case falls within both of the foregoing exceptions.

The judgment of the trial court is affirmed.

1 ORS 609.095 provides as follows: "A dog is a public nuisance if it:

"(1) Bites a person;

"(2) Habitually chases vehicles or persons;

"(3) Damages or destroys property of persons other than the owner of the dog;

"(4) Scatters garbage;

"(5) Habitually trespasses on private property of persons other than the owner of the dog;

"(6) Disturbs any person by frequent or prolonged noises; or

"(7) Is a female in heat and running at large.”

ORS 609.090 provides as follows: "(1) * * * [W]hen a dog is a public nuisance described by ORS 609.095 * * * every * * * police officer shall impound it or cite the owner or keeper to court.”

2 ORS 609.990(2) provides: "Violation of ORS 609.090 and 609.160 is punishable, upon conviction, by a fine of not more than $50.”

3 Article I, § 17 provides: "In all civil cases the right of Trial by Jury shall remain inviolate.”

Article VII (Amended), § 3 provides: "In actions at law, where the value in controversy shall exceed $200, the right of trial by jury shall be preserved.”

4 Cornelison v. Seabold, 254 Or 401, 405, 460 P2d 1009 (1969).

5 Note, 6 Or L Rev 386, 390 (1927); See, State v. 1920 Studebaker Touring Car, 120 Or 254 at 262, 251 P 701, 50 ALR 81 (1927); State v. Hauser, 137 Neb 138, 288 NW 518 (1939); cf., Duncan v. Louisiana, 391 US 145, 88 S Ct 1444, 20 L Ed2d 491, 502 (1960).

6 Note, 6 Or L Rev 386, 390 (1927); See, Lawton v. Steele, 152 US 133, 14 S Ct 499, 38 L Ed 385, 390 (1894); cf., State v. 1920 Studebaker Touring Car, supra note 5, at 268.