State v. Branstetter

1 P.3d 451, 166 Or. App. 286, 2000 Ore. App. LEXIS 381

• Court: Court of Appeals of Oregon
• Decided: March 22, 2000
• Docket: CR970077; CA A100029
• Status: Published

Opinions

ARMSTRONG, J.

Defendant appeals from a trial court order forfeiting his interest in 11 horses and one donkey because of his failure to post a bond to ensure payment of the expenses of caring for them. We hold that the order is not appealable and therefore dismiss the appeal. We also briefly respond to defendant’s and the dissent’s argument that the forfeiture was an excessive fine under Article I, section 16, of the Oregon Constitution.

After investigating allegations that defendant was not feeding or caring for the animals, a sheriffs deputy obtained a search warrant authorizing their impoundment. Defendant was then charged with 12 counts of misdemeanor animal neglect. Petitioner Pioneer Humane Society (Pioneer) took possession of the animals and boarded and fed them throughout the criminal proceedings.¹ The first trial ended in a mistrial when the jury was unable to reach a verdict. After the first trial, and before the second trial, Pioneer filed a petition in the criminal proceeding seeking forfeiture of the animals pursuant to ORS 167.347.² The state moved to amend Pioneer’s petition so that the state would become a copetitioner. The court allowed Pioneer’s and the state’s petitions, rejecting defendant’s constitutional and other arguments in opposition. It found that petitioners had made the probable cause showing that ORS 167.347(3)(a) requires and that Pioneer’s cost for caring for the animals was $2,700. It then ordered the animals forfeited to Pioneer unless defendant posted a bond for $2,700 within 72 hours of the order. It subsequently denied defendant’s motion to reconsider the bond requirement.

On the day of the second trial, the court entered an order forfeiting the animals on the ground that defendant had not posted a bond. Thereafter, the case went to trial. The jury found defendant not guilty of all charges, and the court entered a judgment of acquittal. Defendant appeals from the order forfeiting the animals. The state argues that the order is not appealable. We agree.

Defendant asserts that the order of forfeiture is appealable under ORS 138.040, which provides, in part, that “the defendant may appeal to the Court of Appeals from a judgment or order described under ORS 138.053 in a circuit court[.]” ORS 138.053(1) provides that a judgment or order in a criminal case is appealable only if it imposes a sentence on conviction, suspends imposition or execution of any part of a sentence, or makes a decision relating to probation. None of those events occurred here or could have occurred here. There can be no sentence, probation or other sanction after an acquittal. We are not aware of any other provision of ORS 138.010 to ORS 138.310 that would allow an acquitted defendant to appeal.

The dissent argues, however, that this case is a special statutory proceeding that is appealable under ORS 19.205(4), which provides:

“An appeal may be taken from the circuit court in any special statutory proceeding under the same conditions, in the same manner and with like effect as from a judgment, decree or order entered in an action or suit, unless such appeal is expressly prohibited by the law authorizing such special statutory proceeding.”

According to the dissent, the provisions of ORS 167.347 create a special statutory proceeding. The problem with the dissent’s argument is that it fails to recognize that the essential nature of a special statutory proceeding is that it is separate from every other proceeding. Because ORS 167.347 establishes a process that the statute expressly makes a part of the underlying criminal case, it cannot be a special statutory proceeding.

The Supreme Court’s primary discussion of ORS 19.205(4) (which at the time was numbered ORS 19.005(4)) is in State v. Threet, 294 Or 1, 653 P2d 960 (1982). The court emphasized that the distinguishing feature of a special statutory proceeding is that it be separate from any other proceeding. As examples it mentioned the writs of review and mandamus, habeas corpus, punishment for contempt, a proceeding under the Corrupt Practices Act to compel the disclosure of expenditures, and appeals of trial court decisions on review of administrative actions. 294 Or at 4-5. On the other hand, an order denying a motion in the nature of coram nobis did not qualify, because the motion was part of a criminal proceeding. Id. at 6. In Threet itself, the court held that an order compelling a witness to testify before a grand jury was not an order in a special statutory proceeding and, thus, was not appealable.

Later cases continue to treat separateness as the defining characteristic of a special statutory proceeding. In Garganese v. Dept. of Justice, 318 Or 181, 864 P2d 364 (1993), the Supreme Court held that a proceeding challenging an administrative investigative demand under the Unlawful Trade Practices Act (UTPA) was a special statutory proceeding, because it was entirely distinct from any action prosecuting an alleged violation of the Act. The dissent relies on Garganese to support its argument that we have jurisdiction of this appeal. However, the decision in that case is both consistent with Threet and supports our dismissal of this appeal.

The authority for the administrative investigative demand at issue in Garganese came from ORS 646.618(1), which authorizes the Department of Justice (DOJ) to serve such a demand “upon any person who is believed to have information, documentary material or physical evidence relevant to” an alleged or suspected violation of the UTPA. The question was whether the procedure provided in ORS 646.618(2) for challenging that demand was separate from the procedure provided in ORS 646.632 for prosecuting a violation of the UTPA; if it was, it qualified as a special statutory proceeding for purposes of appellate jurisdiction. The Supreme Court noted that in Threet it had traced the history of special statutory proceedings and had concluded that “a necessary attribute of a special statutory proceeding under [ORS 19.205(4)] is that it be a ‘separate judicial proceeding with clearly defined parties.’ ” Garganese, 318 Or at 185-86 (emphasis added).³ The court then discussed whether the procedure for challenging the DOJ’s investigative demand was “a separate and distinct judicial proceeding, with clearly defined parties, that does not disrupt other judicial proceedings[.]” Id. at 186.

In deciding whether the case before it was a separate and distinct judicial proceeding, the court noted that the DOJ could serve an investigative demand on “any person” who it believed had evidence relevant to an alleged or suspected violation. Thus, a proceeding challenging an investigative demand may be entirely separate from an enforcement proceeding under ORS 646.632. DOJ’s authority under ORS 646.618(1) is not limited to persons suspected of violating the act, and thus the recipient of an investigative demand will not necessarily be the target of the investigation.⁴ “Because the existence of a proceeding under one of those statutes is not dependent on the existence of a proceeding under the other, we conclude that the two proceedings are separate and distinct.” 318 Or at 187. It noted that, when the DOJ was unsure whether there is evidence of a violation of the UTPA, a challenge to an investigative demand might delay an enforcement action, but it held that, because no enforcement action under ORS 646.632 had been filed, the challenge would not disrupt another judicial proceeding. Because the trial court’s ruling on the investigative demand terminated the proceeding under ORS 646.618(2), its order was appeal-able under what is now ORS 19.205(4). Id. at 187-88. Garganese, thus, is simply an application of Threet to a statute that expressly contemplated separate proceedings.

The dissent also relies on State v. K.P., 324 Or 1, 921 P2d 380 (1996), in which the defendant appealed from an order under ORS 137.225 that sealed the records of her arrest and conviction for theft except for police investigation reports. After rejecting two other possible statutory authorizations for appeal, the Supreme Court held that the order was appealable under what is now ORS 19.205(4). Its reasons for rejecting the two other possible sources of appellate jurisdiction are essential to understanding the relevance of K.P. to this case. The court first noted that a motion to set aside a criminal conviction or arrest was not in the nature of an action to punish a criminal violation but, instead, had a rehabilitative purpose. The motion was not, therefore, a criminal proceeding, and ORS chapter 138 did not govern an appeal. The court then rejected the defendant’s suggestion that the case was appealable, under what is now ORS 19.205(2)(c), as an order affecting a substantial right, made in a proceeding after judgment. Instead, it held that the order was appealable under ORS 19.205(4) as coming from a special statutory proceeding. K.P., 324 Or at 4-6.

The foundation for the court’s analysis in K.P., thus, was that a motion under ORS 137.225 to set aside a conviction starts a new proceeding from the original prosecution; if it did not, one of the other statutes would have controlled the appealability of the decision. The court determined that the' proceeding in question was not part of the criminal proceeding and was appealable for that reason. That is different from this case, in which the statute expressly provides that the forfeiture proceeding is part of the criminal case.

The final cases that the dissent discusses, State v. Cunningham, 161 Or App 345, 985 P2d 827 (1999), and State v. Curran, 291 Or 119, 628 P2d 1198 (1981), both involve current ORS 19.205(2)(c). That statute does not apply in this case, because the court entered the order of forfeiture before the judgment of conviction. In any event, ORS 19.205(2)(c) is conceptually inconsistent with a special statutory proceeding under ORS 19.205(4). In Cunningham, we held that an order in a criminal case that denied the defendant’s motion to seal certain records relating to defense expenses was appealable as a post-judgment order that affected a substantial right. We concluded that, although the motion was made in a criminal case, it was essentially civil in character and thus the civil appeals statute controlled. We did not discuss the possible applicability of ORS 19.205(4). Indeed, if the court’s order was a post-judgment order in the criminal case, it could not have been a judgment in a special statutory proceeding.

In Cunningham we relied in part on Curran, in which the defendant did not appeal from his conviction but instead appealed from a post-conviction punitive forfeiture that was imposed under former ORS 471.665 (1979). Under that statute, a court could order the sale of property used to transport contraband, pursuant to an order that it entered after the conviction of the person. Former ORS 471.665(1) (1979). The forfeiture apparently occurred on the entry of the order. In Curran, the court entered the order of sale over a month after it entered the judgment of conviction. As a result, the court noted, the appeal of the forfeiture was not an appeal from a judgment on conviction. Rather, the forfeiture was in the nature of a civil penalty, and the civil appeal statutes therefore applied. The court then concluded that the applicable statute was current ORS 19.205(2)(c), because the order was both final as to the forfeiture and came after judgment. Although it also noted that current ORS 19.205(4) was “arguably applicable,” it had no reason to decide the issue. Curran, 291 Or at 124-27.

Contrary to the dissent’s suggestion, Curran supports our conclusion that we do not have jurisdiction over this case. The forfeiture in that case was not a separate proceeding. Rather, as the Supreme Court recognized, “the trial court was authorized to proceed with the matter of forfeiture without the necessity of resort by the district attorney to a new and separate cause[.]” 291 Or at 126. That conclusion is also inherent in the court’s reliance on current ORS 19.205(2)(c) for its jurisdiction, because that statute requires that the order be made after judgment in the same case. The court decided Curran a year before it decided Threet, so when it suggested that current ORS 19.205(4) might also apply it did not have the benefit of the more careful consideration that it gave that statute in the later case. The emphasis in Threet and later cases on separateness as an essential element of a special statutory proceeding means that it is impossible to find jurisdiction of the same order or judgment under both subsections. If the order is appealable because it comes after judgment in the same case, it cannot be an order in a special (and thus separate) statutory proceeding. Thus, holding that one of these subsections applies necessarily means that the other does not.

We have followed Threet in more recent cases. Thus, in Strother and Strother, 130 Or App 624, 628, 883 P2d 249 (1994), rev den 320 Or 508 (1995), we followed Threet and held that a proceeding under the Abuse Prevention Act was a special statutory proceeding. In doing so, we emphasized that the proceeding involved clearly defined parties and was not part of any other judicial proceeding. In State v. Gangi, 66 Or App 582, 675 P2d 181 (1984), we held that we had no jurisdiction over an appeal from an order continuing a case for five years rather than placing the defendant under the jurisdiction of the Psychiatric Security Review Board or discharging him. We agreed with the state’s reliance on an earlier case, which we held was consistent with Threet, to show that there was no special statutory proceeding.

The application of Threet and Garganese to this case is clear. The essential issue is whether the order of forfeiture occurred in a proceeding that was separate and distinct from the criminal case. The statute that authorizes the forfeiture also answers that question. ORS 167.347(1) provides that a county animal shelter or other animal care agency that is caring for an animal pending the outcome of a criminal animal neglect case “may file a petition in the criminal action” seeking to forfeit the animal to the agency. The court will then hold a hearing on the petition. If it finds that there is probable cause to believe that the animal was subject to abuse, neglect, or abandonment in violation of the criminal statutes, it shall order immediate forfeiture unless the defendant posts a bond within 72 hours in an amount sufficient to repay the costs of caring for the animal from the date of impoundment to the date of trial. ORS 167.347(3)(a). Although the purpose of the bond and forfeiture requirement is not punitive, the statute expressly provides that the entire procedure occurs within the criminal case. Because it is not separate from that case, it cannot be a special statutory proceeding under ORS 19.205(4). Because it is not a special statutory proceeding, and because there is no other possible basis for appellate jurisdiction, we do not have jurisdiction over this appeal.⁵

Our decision that we have no jurisdiction over the appeal decides this case. However, we will respond briefly to the dissent’s argument that the forfeiture was an excessive fine because of the disproportion between the cost of caring for the animals and their value.⁶ The underlying problem with the dissent’s conclusion is that the forfeiture was not a fine or any other form of punishment for defendant’s alleged abuse of the animals. Because of defendant’s acquittal, any fine for that offense would be excessive and beyond the trial court’s authority. If defendant had been convicted of animal abuse, ORS 167.350 would have provided authority for the court to forfeit his rights in a mistreated animal. Such a punitive forfeiture, however, is not the purpose of ORS 167.347. Rather, the purpose of that statute is to ensure that the agency that takes care of allegedly abused or neglected animals pending the trial will be able to recover the expense of that care. That purpose is obvious from the structure of the statute.

ORS 167.345 provides the background to ORS 167.347. Under that statute, if there is probable cause to believe that an animal is being abused, a peace officer, after obtaining a search warrant, may impound the animal. ORS 167.345(2). The court may then order the impounded animal held at an animal care facility. The statute requires the facility to provide adequate food and water and permits it to provide veterinary care. ORS 167.345(3). The purpose of ORS 167.347 is to establish the method of paying for the costs that the facility incurs in carrying out those responsibilities. Subsection (1) permits the agency, before final disposition of the criminal charge, to petition for a court order forfeiting the animal. Subsection (2) provides for a hearing on the petition. Under subsection (3), the agency has the burden of establishing probable cause that the animal was abused; if the agency meets that burden, the court shall order forfeiture unless the defendant posts a bond or security deposit within 72 hours. Subsection (5) allows the agency to draw on the bond or security deposit to cover its actual reasonable costs. Finally, subsection (6) expressly provides that the statute is in addition to, not in lieu of, ORS 167.350, which provides for forfeiture as a penalty on conviction.

The essential point about ORS 167.347 is that the purpose for the forfeiture is to ensure payment to the agency, not to punish the defendant. Permitting the defendant to avoid the forfeiture by providing security for the agency’s expenses — that is, to fulfill the defendant’s obligation as owner of the animals to give them adequate care — is in itself inconsistent with the idea that the forfeiture is punitive. Under ORS 87.159, the agency has a lien on the animals in its care. It appears that ORS 167.347 provides an alternative, more efficient, method for protecting the agency. Because that method is not punishment for a crime, it is not unconstitutional on any ground that defendant raises.⁷

Appeal dismissed.

1 On appeal, defendant challenges neither the seizure of the animals nor their placement with Pioneer.

2 ORS 167.347 provides:

"(1) If any animal is impounded pursuant to ORS 167.345 (2) and is being held by a county animal shelter or other animal care agency pending outcome of criminal action charging a violation of ORS 167.310 to 167.340, prior to final disposition of the criminal charge, the county or other animal care agency may file a petition in the criminal action requesting that the court issue an order forfeiting the animal to the county or other animal care agency prior to final disposition of the criminal charge. The petitioner shall serve a true copy of the petition upon the defendant and the district attorney.

“(2) Upon receipt of a petition pursuant to subsection (1) of this section, the court shall set a hearing on the petition. The hearing shall be conducted within 14 days of the filing of the petition, or as soon as practicable.

“(3)(a) At a hearing conducted pursuant to subsection (2) of this section, the petitioner shall have the burden of establishing probable cause to believe that the animal was subjected to abuse, neglect or abandonment in violation of ORS 167.310 to 167.340. If the court finds that probable cause exists, the court shall order immediate forfeiture of the animal to the petitioner, unless the defendant, within 72 hours of the hearing, posts a security deposit or bond with the court clerk in an amount determined by the court to be sufficient to repay all reasonable costs incurred, and anticipated to be incurred, by the petitioner in caring for the animal from the date of initial impoundment to the date of trial.

“(b) Notwithstanding paragraph (a) of this subsection, a court may waive for good cause shown the requirement that the defendant post a security deposit or bond.

“(4) If a security deposit or bond has been posted in accordance with subsection (3) of this section, and the trial in the action is continued at a later date, any order of continuance shall require the defendant to post an additional security deposit or bond in an amount determined by the court that shall be sufficient to repay all additional reasonable costs anticipated to be incurred by the petitioner in caring for the animal until the new date of trial.

“(5) If a security deposit or bond has been posted in accordance with subsection (4) of this section, the petitioner may draw from that security deposit or bond the actual reasonable costs incurred by the petitioner in caring for the impounded animal from the date of initial impoundment to the date of final disposition of the animal in the criminal action.

“(6) The provisions of this section are in addition to, and not in lieu of, the provisions of ORS 167.350.” (Emphasis added.)

3 The court also noted that “[bine of the reasons for requiring that the judicial proceedings be separate and wholly distinct is to avoid disruption of other judicial proceedings.” Garganese, 318 Or at 186. Avoiding disruption, thus, is primarily a reason for requiring that the proceeding be separate, not a test of what constitutes separateness. To the extent that the Supreme Court, in determining appealability, considers whether an appeal would disrupt another proceeding, it is as an additional criterion, not as one of the tests for what makes a proceeding separate and distinct. See id.

4 In a case that the Supreme Court decided the same day as Garganese, it noted that “DOJ need not make a threshold showing at the investigative demand stage that the recipient of the investigative demand, or that the entity under investigation, falls within the definition contained in ORS 646.605(7) [describing part of the coverage of the UTPA1. One legitimate aim of the investigation may be to discover whether Tthe recipient’s! practices are covered by the Act.” Vendall Marketing Corp. v. Dept. of Justice, 318 Or 189, 195, 863 P2d 1263 (1993).

5 This case illustrates the importance of the requirement that special statutory proceedings be separate from other judicial proceedings. If defendant were entitled under ORS 19.205(4) to appeal from the order that forfeited his interest in the animals, he would file his notice of appeal in his criminal case, as he did here, because that is the only case in which it could be filed. If he had done that before his second trial on the animal neglect charges, the filing of the notice would have deprived the trial court of jurisdiction to conduct that trial. See, e.g., ORS 19.270(1); ORS 138.083; Macy v. Blatchford, 154 Or App 313, 324, 961 P2d 873, rev allowed 328 Or 194 (1998). We would then have had to decide defendant’s appeal from the forfeiture order before the case could have been returned to the trial court for trial .of the criminal charges. The requirement that special statutory proceedings be separate to be appealable under ORS 19.205(4) avoids creating situations, such as the one described here, in which people could obtain appellate review of interlocutory orders. Tellingly, none of the cases on which the dissent relies involved a situation in which appellate review under ORS 19.205(4) would deprive a trial court or agency of jurisdiction to proceed with a pending matter. That is because none of them violated the separateness requirement, as a decision in favor of defendant on the jurisdictional issue in this case would.

6 As part of arguing that the forfeiture was an excessive fine, the dissent emphasizes that the forfeiture is part of the criminal action, not separate from it. In doing so, it shows that the forfeiture is not a special statutory proceeding and, thus, that we do not have jurisdiction over this appeal.

7 Defendant does not assert that there is any constitutional infirmity in the failure to provide in ORS 167.347 for sale rather than forfeiture of the animals, with the owner receiving the proceeds that exceed the costs of sale and the agency’s expenses. Foreclosing a lien would normally require such a sale and disposition of the proceeds. See ORS 87.206.