State/Klamath County v. Hershey

                                        56

 Argued and submitted November 16, 2018, affirmed May 6, petition for review
                   allowed August 27, 2020 (

)
                       See later issue Oregon Reports


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                KENNETH LAWRENCE HERSHEY,
                     Defendant-Appellant.
                       KLAMATH COUNTY,
          a political subdivision of the State of Oregon,
                       Petitioner-Respondent,
                                  v.
             KENNETH LAWRENCE HERSHEY,
                       Respondent-Appellant.
                    Klamath County Circuit Court
                        17CR66503; A166962
                                   

     Respondent appeals an order of forfeiture entered after he failed to post bond
for the cost of the care and treatment for his animals that were impounded pending his criminal trial. Respondent argues that because forfeiture proceedings
were tried to a jury at the time the constitution was adopted, under Article I,
section 17, of the Oregon Constitution, he was entitled to a jury trial before those
animals could be forfeited to the animal care agency that has been caring for
them. Held: The trial court did not err when it denied respondent’s request for
a jury trial. The proceeding under ORS 167.347 is not the kind of forfeiture proceeding that existed at the time of the adoption of Article I, section 17, and it
does not involve the kinds of determinations that are typically made by a jury.
Article I, section 17, does not provide a jury trial right in that proceeding.
    Affirmed.



    Andrea M. Janney, Judge.
  Julian Marrs argued the cause and filed the briefs for
appellant.
   Cecil A. Reniche-Smith, Assistant Attorney General,
argued the cause for respondent State of Oregon. Also on
the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
    No appearance for respondent Klamath County.
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  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
  TOOKEY, J.
  Affirmed.
  Shorr, J., dissenting.
58                                   State/Klamath County v. Hershey

            TOOKEY, J.
         Respondent1 appeals an order of forfeiture, entered
after he failed to post a $75,000 bond for the cost of care and
treatment for his animals, which were impounded pending
his criminal trial. ORS 167.347.2 Respondent argues that
he was entitled under Article I, section 17, of the Oregon
Constitution to a jury trial on the forfeiture petition. The
trial court concluded that an ORS 167.347 claim is not one
that gives rise to a jury-trial right under Article I, section 17.
We agree with the trial court and, therefore, affirm.
                             I. BACKGROUND
         We review the denial of respondent’s motion for jury
trial on the petition for forfeiture under ORS 167.3473 for
errors of law. Here, the facts are primarily procedural, and
they are undisputed.

     1
       We identify the parties by their designations below in the petition for forfeiture proceeding, which is the matter on appeal. Klamath County (the county)
was the petitioner in that proceeding, represented by the District Attorney, and
Kenneth Hershey was the respondent. The state is also a named party on appeal
and filed a brief.
     2
       We quote the statute in full in later discussion. 

-66. Here, we
quote the portions most relevant to our explanation of the procedural history and
background.
          “(1)(a) If an animal is impounded pursuant to ORS 167.345 and is being
     held by a county animal shelter or other animal care agency pending outcome
     of a criminal action[,] … prior to the final disposition of the criminal action,
     the county or other animal care agency or, on behalf of the county or other
     animal care agency, the district attorney, 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 the final disposition of the criminal action. …
          “…
         “(3) At a hearing … the petitioner shall have the burden of establishing
    probable cause to believe that the animal was subjected to a violation of ORS
    167.315 to 167.333 …. The defendant or any other claimant shall have an
    opportunity to be heard before the court makes its final finding. If the court
    finds that probable cause exists, the court shall order immediate forfeiture
    of the animal to the petitioner, unless the defendant or any other claimant,
    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.”
    3
      The 2017 version of ORS 167.347 applies to this case. It has since been
amended. Or Laws 2017, ch 279, § 1. Because the amendment has no bearing on
our analysis, all references are to the current version of the statute.
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         In September 2017, Klamath County Animal Control
impounded respondent’s 22 dogs, seven chickens, and three
horses, ORS 167.345(3), in connection with second-degree
animal neglect charges against respondent, ORS 167.325.
The animals were placed in the care of the Klamath County
Animal Shelter and Klamath Large Animal Division, both
animal shelters that are run by petitioner, Klamath County.
Respondent was indicted on one count of felony second-degree
animal neglect in connection with the 22 dogs, and two
counts of misdemeanor second-degree animal neglect—one
count for the seven chickens and one for the three horses.4
ORS 167.325.
         In December 2017, the district attorney, on behalf
of Klamath County, filed a petition under ORS 167.347(1)
for the forfeiture of the seized animals. The petition alleged
that there was probable cause to believe that the impounded
animals had been subjected to second-degree animal neglect
and it alleged that the county had incurred expenses for
the feeding, care, and veterinary treatment of the animals
and that those expenses were “expected to be ongoing as
the criminal case continues.” Respondent filed a motion for
a jury trial on the petition, arguing that Article I, section 17,
provides a right to a jury trial in forfeiture proceedings. The
county opposed the motion. The trial court concluded that
respondent was not entitled to a jury trial under the statute
or the constitution, and it denied the motion.
         The trial court held a hearing and set a bond based
on the amount of money expended by the county’s animal
care agencies, and the amount expected to be expended by
the time of trial. When respondent did not post the bond
within 72 hours, the trial court ordered the forfeiture of
respondent’s animals to the Klamath Humane Society.
Respondent filed a notice of appeal and requested that the
trial court stay the order of forfeiture pending appeal. The
trial court granted the stay.
         On appeal, respondent contends that the trial court
erred by denying his request for a jury trial. He argues that
     4
       Second-degree animal neglect is ordinarily a misdemeanor. ORS 167.325(2).
It is elevated to a felony, however, when an “offense was part of a criminal episode involving 11 or more animals.” ORS 167.325(3)(b). The animal-neglect count
involving the 22 dogs was charged as a felony under that provision.
60                                 State/Klamath County v. Hershey

because the Supreme Court has previously held that there is
a right to a jury trial in a forfeiture case, the same applies in
this case. See State v. Curran, 

, 

 (1981) (holding defendant was entitled to jury trial on
forfeiture when statute required findings that vehicle was
employed in transportation or concealment of contraband
and that the use was by or with knowledge of the owner);
State v. 1920 Studebaker Touring Car, 

, 

 (1926) (holding in statutory in rem forfeiture case that
claimants or owners of the seized property were entitled to
jury trial).
                               II. ANALYSIS
         The issue on appeal is whether a claim under ORS
167.347 is one in which respondent is guaranteed a jury
trial under Article I, section 17.5 In analyzing that question, we first examine that constitutional provision and
how Oregon courts have construed it—particularly, as to
what types of claims would have been tried to a jury under
common law at the time Oregon adopted its constitution or
are “of like nature” to those claims. Then, we consider the
nature of ORS 167.347 and its context to determine whether
a claim under that statute is that type of claim. We conclude
that it is not, because it is more akin to a lien foreclosure
than a true forfeiture claim, and it involves determinations
that were customarily tried to the court rather than a jury;
hence, an ORS 167.347 claim is not a forfeiture claim for
which the respondent has a jury-trial right under Article I,
section 17.
         Article I, section 17, provides, “In all civil cases the
right of Trial by Jury shall remain inviolate.”6 The Supreme
    5
      The parties are correct that ORS 167.347 itself does not provide such a
right; it expressly provides for the court to make the required findings. Thus, the
predicate for our constitutional analysis is satisfied. See Goodyear Tire & Rubber
Co. v. Tualatin Tire & Auto, 

, 

 (1995), modified on
recons, 

, 

 (1997) (first considering whether the legislature
provided for a jury trial by statute, and only then considering whether the constitution provides that right); see also M. K. F. v. Miramontes, 

, 

 (2012) (engaging in the same analysis).
    6
      By its terms, Article I, section 17, applies to civil cases. Neither party disputes that this is a civil proceeding. The Supreme Court has previously held that
a proceeding under ORS 167.347 is a “special statutory proceeding” that is separate from the criminal case.
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Court has explained that Article I, section 17, “guarantees
the right to a trial by a jury (as opposed to a trial by a judge)
in civil actions for which the common law provided a jury
trial when the Oregon Constitution was adopted in 1857 and
in cases of like nature.”7 Horton v. OHSU, 

,

 (2016).
         The Supreme Court has delineated two separate
analytical categories for purposes of our Article I, section 17,
analysis: The first category is made up of civil actions that
existed “when the Oregon Constitution was adopted in
1857,” and the second consists of cases that did not exist
in 1857 but came into existence later. Id.; see McDowell
Welding & Pipefitting v. US Gypsum Co., 

,

 (2008) (“The right to a jury trial … does not
extend to cases that would have been tried to an equity or
an admiralty court in 1859.”); Horton, 

 (summarizing M. K. F. v. Miramontes, 

, 

 (2012), as holding that the “state constitutional jury
trial right extends to new causes of action that are ‘of like
nature’ to claims and defenses that would have been tried to
a jury in 1857”).
          For claims that are within the first category, the
analytical path requires determining whether the claim
existed, and the “right to a jury trial was customary” for that
claim “at the time the Oregon Constitution was adopted.”
Horton, 

. If a claim of that kind was customarily tried to a jury at that time, then Article I, section 17,
preserves that right. Studebaker, 

 (“The right
of trial by jury, guaranteed by the Constitution of this state,
    “[I]n an appeal from a final disposition in the particular kind of forfeiture
    proceeding that occurs pursuant to ORS 167.347, the ‘cause’ being appealed
    is the special statutory proceeding. The criminal prosecution is not implicated in that appeal, and the appeal does not deprive the trial court of jurisdiction to proceed to trial on the criminal matter.”
State v. Branstetter, 

, 

 (2001). That is also the reason
why the order at issue is appealable even though there has not been a judgment
entered in the criminal case—the proceeding under ORS 167.347 is separate
from the criminal case. Branstetter, 

.
    7
      Article VII (Amended), section 3, provides the right to a jury trial in
“actions at law, where the value in controversy shall exceed $750.” That provision was adopted in 1910. Miramontes, 

 n 5. Respondent has not
made any argument concerning application of that provision to this proceeding.
Accordingly, in this case we express no opinion related to that provision.
62                               State/Klamath County v. Hershey

embraces every case where it existed before the adoption of
the Constitution[.]”). If the current claim is one that existed
at the time of the adoption of the constitution, and a jury
trial was not customary at the time, then no constitutional
right to a jury trial was created for it with the adoption of
Article I, section 17: “The right to a jury trial … does not
extend to cases that would have been tried to an equity or an
admiralty court in 1859.”8 McDowell Welding & Pipefitting,

.
          Respondent argues that this is a forfeiture claim,
and that forfeiture claims are ones in which there is a right
to a jury trial, as established in Studebaker, 

,
and in Curran, 

. He argues that Studebaker
and Curran hold that, “as a blanket rule, Article I, section 17,
requires a jury trial in forfeiture proceedings because those
proceedings would have been tried to a jury in 1857.” He also
argues in the alternative, that, even if those cases do not
establish a blanket rule, they at least establish that a jury
trial is required in circumstances where a forfeiture statute
permits forfeiture without a prior conviction in a criminal
case, or where issues of fact pertinent to the forfeiture are
not resolved in the criminal action before the forfeiture.
         The state responds that respondent is incorrect in
his underlying premise that this is, or is analogous to, a forfeiture claim at common law. The state argues that case law
has established that a jury trial was customary at common
law in a forfeiture claim in which property is forfeited as a
penalty for its connection with a crime, but that this claim
is not analogous to those kinds of claims. Rather, the state
argues, this is a different type of claim, in which animal
owners are given a choice between covering the costs of care
for their impounded animals or allowing the animals to be
forfeited to the animal care agency.
         In reply, respondent argues that, even if the purpose of the statute is to ensure that an animal owner pays

    8
      The Supreme Court has been inconsistent in its statements regarding
which year—1857, when the voters adopted the constitution, or 1859, when it
went into effect—is the correct date for evaluating whether a claim was customarily tried to a jury. For our purposes here, the difference is immaterial.
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the cost of the animals’ care during impoundment, the claim
under ORS 167.347 is still a claim “of like nature” to a forfeiture claim, in which there was a jury-trial right.
         We readily conclude that an ORS 167.347 claim,
which is based on the animal care agency being able to
recoup the costs it has expended for animals in the agency’s care while they are impounded, and in which forfeiture
occurs only when the animal owner fails to post the required
bond, is not a claim that predated Article I, section 17.
Accordingly, we focus on the parties’ arguments concerning
whether it is a claim of “like nature” to one that existed at
the time Article I, section 17, was adopted, and in which a
jury trial was customary. Miramontes, 

.
         As respondent points out, the Supreme Court has
held that a right to a jury trial is guaranteed for forfeiture
claims. “Historically, the concept of a forfeiture is founded
on the idea that a chattel attains some guilt in the commission of a criminal act.” Curran, 

. “It cannot
be doubted that a forfeiture of property for a prohibited act
is a penalty for committing the act. It is so denominated
by lexicographers, and is so treated in judicial decisions.”
Studebaker, 

 (citation and quotation marks
omitted). In Studebaker, the in rem claim required proof
that the vehicle had been
   “ ‘used by or with the knowledge of the owner or the person
   operating or in charge thereof, in any unlawful bringing
   of intoxicating liquor into this state, or in the unlawful
   transportation of the same within this state, or in or on
   which intoxicating liquor unlawfully possessed is kept or
   concealed by or with the knowledge of such owner or person
   operating or in charge thereof[.]’ ”

 at 256 (quoting Or Laws 1923, ch 29). In Curran, the
forfeiture claim required a predicate conviction. It also
required the state to prove that “(1) the vehicle was employed
in the unlawful transportation or concealment of controlled
substances and that (2) such use was by or with the knowledge of the owner of the vehicle.” 

. The court
concluded that the defendant was entitled to a jury trial on
those questions because the jury in the criminal trial had
not resolved them. 

.
64                               State/Klamath County v. Hershey

         If a forfeiture under ORS 167.347 were like those
cases, we would agree with respondent that he is entitled to
a jury trial. But, an examination of ORS 167.347—its text,
context, and legislative history—demonstrates why this
type of forfeiture is very different.
         Some additional procedural history of this case provides additional helpful context for our examination of the
statute. Here, respondent’s animals were impounded when
police executed a search warrant, as permitted under ORS
167.345(2) when “there is probable cause to believe that any
animal is being subjected to treatment in violation of ORS
167.315 to 167.333, 167.340, 167.355, 167.365 or 167.428.”9
ORS 167.345(2) provides that, if an officer has probable
cause to believe that an animal is being subjected to, as relevant here, neglect under ORS 167.325, police may obtain a
warrant or enter the premises by other lawful means and
impound the animal. A court may order that the impounded
animal be held “at any animal care facility in the state[,]”
and the receiving facility “shall provide adequate food and
water and may provide veterinary care.” ORS 167.345(4)(a).
       ORS 167.347 provides for forfeiture of impounded
animals to the entity providing care for them, under specific
circumstances. The full text of ORS 167.347 provides:
         “(1)(a) If an animal is impounded pursuant to ORS
     167.345 and is being held by a county animal shelter or
     other animal care agency pending outcome of a criminal
     action charging a violation of ORS 167.315 to 167.333,
     167.340, 167.355, 167.365 or 167.428, prior to the final disposition of the criminal action, the county or other animal
     care agency or, on behalf of the county or other animal
     care agency, the district attorney, 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 the final disposition of the criminal action.
     The petitioner shall serve a true copy of the petition upon
     the defendant and, unless the district attorney has filed
     the petition on behalf of the county or other animal care
     agency, the district attorney.

    9
      Those statutes define various degrees of animal abuse and neglect, violation of an animal possession prohibition, sexual assault of an animal, animal
abandonment, involvement in animal fighting, dogfighting, and cockfighting.
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     “(b) A petition may be filed in the criminal action
  under paragraph (a) of this subsection concerning any
  animal impounded under ORS 167.345 and held pending
  the outcome of the criminal action, regardless of whether
  the specific animal is the subject of a criminal charge, or
  named in the charging instrument, in the criminal action.
      “(2)(a) 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
  after the filing of the petition, or as soon as practicable.
      “(b) To provide notice on any potential claimant who
  may have an interest in any animals impounded pursuant
  to ORS 167.345 and as an alternate form of service upon
  a defendant who cannot be personally served as required
  in subsection (1) of this section, a petitioner may publish
  notice of the filing of the petition, printed twice weekly
  for up to 14 consecutive days in a daily or weekly newspaper, as defined in ORS 193.010, published in the county
  in which the hearing is to be held or, if there is none, in
  a daily or weekly newspaper, as defined in ORS 193.010,
  generally circulated in the county in which the hearing is
  to be held. The notice of the filing of the petition required
  under this subsection shall contain a description of the
  impounded animal or animals, the name of the owner or
  reputed owner thereof, the location from which the animal
  or animals were impounded and the time and place of the
  hearing if the hearing has been set at the time of publication, or otherwise the name, address and phone number
  for the attorney for the petitioner, who shall upon request
  provide further details on the hearing date, place and
  time.
      “(3) 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 a violation of ORS 167.315 to 167.333, 167.340,
  167.355, 167.365 or 167.428. The defendant or any other
  claimant shall have an opportunity to be heard before the
  court makes its final finding. If the court finds that probable cause exists, the court shall order immediate forfeiture of the animal to the petitioner, unless the defendant or
  any other claimant, 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
66                            State/Klamath County v. Hershey

     petitioner in caring for the animal from the date of initial
     impoundment to the date of trial.
         “(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 or any other claimant
     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 any
     impounded animal from the date of initial impoundment
     to the date of final disposition of the animal in the related
     criminal action.
         “(6) The provisions of this section are in addition
     to, and not in lieu of, the provisions of ORS 167.350 and
     167.435 and ORS chapters 87 and 88.”
The animal care facility, or the county, on behalf of its animal
shelters, may file a petition in the criminal case, after which
the petitioner must prove at a hearing that the animals
are in its care in connection with a listed offense, for which
there was probable cause. If it proves those things, then the
trial court shall set a bond “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.” ORS 167.347(3). If the respondent does not post
that bond within 72 hours, the trial court shall enter an
order of forfeiture, forfeiting the animals to the care agency.

         “An obvious practical problem that arises when
animals are impounded under ORS 167.345 is the need to
pay for the food, water, and care that they receive.” State v.
Branstetter, 

, 

 (2002) (Armstrong, J.,
concurring) (Branstetter II) (construing 1999 versions of
ORS 167.347 and related statutes). The legislature dealt
with that problem in two essentially parallel ways. First it
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provided in ORS 87.159 that the animal care agency providing care and treatment for the animals would have a lien
on the animals, and the ability to foreclose the lien, and
second, it provided the means for an animal care agency
to seek a bond for the costs incurred for the animals’ care
by providing the procedure in ORS 167.347 for the court to
impose a bond for those expenses on the animals’ owner.
Id. at 63-64. The petitioner must prove that the animals
were impounded with probable cause in order to show that
the animals are lawfully in the animal care agency’s custody under ORS 167.345. That probable cause determination has no effect on the criminal case against the owner,
as the forfeiture proceeding is entirely separate from the
criminal prosecution. See State v. Branstetter, 

, 

 (2001) (Branstetter I).

          Whether the owner is innocent or guilty of the criminal charge is of no consequence to a proceeding under ORS
167.347. Branstetter II, 

. That is so because
the purpose of the claim is not to punish owners, but to place
on the owners the costs incurred by a third party in caring
for the animals. Those costs are incurred whether or not
the owners are guilty, and they are costs that the owner
has been relieved of paying while the animals are out of
the owners’ care. ORS 167.347 also provides that its provisions are in addition to the criminal sanctions provided in
ORS 167.350, which authorizes forfeiture of animals as a
sanction upon conviction. ORS 167.347(5). “Thus, although a
proceeding under ORS 167.347 takes place in the criminal
action, it does not arise from that action, is entirely separate
from it, and, necessarily, is not governed by the rules that
apply to criminal prosecutions.” Branstetter II, 

.

         Relatedly, as mentioned, in ORS 87.159 the legislature gave animal care agencies a lien on impounded animals to recover costs incurred for their care. In 2013 the legislature amended that statute and ORS 167.347 at the same
time, as part of the same bill. Or Laws 2013, ch 719, §§ 7, 9.
That statute provides relevant context to ORS 167.347. In
ORS 87.159, the legislature provided a way for any person
with an ownership interest in impounded animals on which
68                                 State/Klamath County v. Hershey

an animal care agency had a lien to initiate proceedings
“demanding a hearing before the circuit court” to challenge
whether there is probable cause to “justify[ ] the impoundment that resulted in the lien attaching,” or “the amount
of the charges associated with that lien.” ORS 87.159(2)(b)
provides for an essentially identical hearing to the one provided in ORS 167.347, in which the animal care agency has
the burden of demonstrating that the impoundment was
based on probable cause, and that the lien amount claimed
accurately reflects the reasonable charges authorized and
accruing under ORS 87.159(1). If the court finds in favor
of the animal care agency, then it “shall deny the petition,
award reasonable attorney fees to” the animal care agency,
“and direct the foreclosure to proceed.” If the court finds
that the animals were placed in the animal care agency’s
care without probable cause, “then the court may enter an
order striking the lien created under subsection (1) of this
section and may, but only if a final judgment is entered in
the defendant’s favor in the criminal case related to the
impoundment under ORS 167.347, order an impounded animal returned to its lawful owner.” ORS 87.159(2)(c)(C). The
legislature provided in ORS 167.347 an alternative way to
achieve essentially the same result, more quickly and more
efficiently within the framework of the criminal case when
such a case is ongoing.
        In 2013, the legislature amended ORS 167.347 and
many other provisions of the animal welfare statutes, including ORS 87.159.10 At that time, it enacted ORS 167.305, which
“finds and declares” that:
     10
        In 2013, the legislature amended eight animal welfare-related statutes in
Senate Bill (SB) 6. Or Laws 2013, ch 719. The primary motivation for the bill was
described in testimony by Senate President Peter Courtney, who introduced the
bill along with Senator Floyd Prosanski. President Courtney testified before the
Senate Judiciary Committee that he read one day in The Oregonian that police had
found 149 dogs “starving to death in a warehouse in Brooks,” Oregon. Exhibit 1,
Senate Committee on Judiciary, SB 6, Mar 25, 2013 (statement of Senate
President Peter Courtney). He learned that the Humane Society in Portland had
taken in all 149 dogs, and that “it could be an entire year before these dogs would
be legally ready for adoption.” Id. President Courtney told his staff the next day
that he “wanted to do a bill that cracks down on these criminals, allows police to
get in the door sooner, and gets these animals into loving homes faster. That is
the bill before you today.” Id. The bill included changes to the lien and foreclosure statute related to the costs of care for impounded animals, provisions listing
aggravating circumstances that elevate misdemeanor animal abuse and neglect
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       “(1) Animals are sentient beings capable of experiencing pain, stress and fear;
       “(2) Animals should be cared for in ways that minimize pain, stress, fear and suffering;
       “(3) The suffering of animals can be mitigated by
    expediting the disposition of abused animals that would
    otherwise languish in cages while their defendant owners
    await trial;
       “(4) The suffering of animals at the hands of unlicensed animal rescue organizations that are unable to provide sufficient food and care for the animals can be reduced
    by requiring such organizations to comply with regulations;
       “(5) The State of Oregon has an interest in facilitating
    the mitigation of costs of care incurred by a government
    agency, a humane investigation agency or its agent or a
    person that provides treatment for impounded animals;
       “(6) A government agency, a humane investigation
    agency or its agent or a person that provides care and treatment for impounded or seized animals:
       “(a) Has an interest in mitigating the costs of the care
    and treatment in order to ensure the swift and thorough
    rehabilitation of the animals; and
        “(b) May mitigate the costs of the care and treatment
    through funding that is separate from, and in addition
    to, any recovery of reasonable costs that a court orders a
    defendant to pay while a forfeiture proceeding is pending
    or subsequent to a conviction;
       “(7) Use of preconviction civil remedies is not an
    affront to the presumption of innocence; and
       “(8) Amendments to current law are needed to ensure
    that interested parties are afforded adequate notice and an
    opportunity to be heard and thus cannot unduly delay or
    impede animal lien foreclosure and preconviction forfeiture
    processes through unfounded due process claims.”

offenses to felonies, provisions broadening the prohibition on possession of animals for persons convicted of animal abuse and neglect, requirements for animal
shelters and rescues to be licensed, as well as changes to the preconviction forfeiture law at issue here, ORS 167.347.
70                         State/Klamath County v. Hershey

          Both ORS 167.347 and the legislature’s findings and
declarations in ORS 167.305 refer to “forfeiture,” and respondent seizes on that word to argue that a claim under ORS
167.347 constitutes a forfeiture proceeding like in Curran
and Studebaker. The state, however, emphasizes the parallels between the ORS 167.347 proceeding—one in which the
forfeiture occurs only as a consequence of a failure to post
the bond set by the court—and a lien foreclosure proceeding.
          There are important differences between lien foreclosure and a forfeiture. For one, in a lien foreclosure, the
property to which the lien is attached is typically sold and
the proceeds are applied to the amount of the lien. ORS
167.347 is not a perfect match with a lien foreclosure; if the
respondent does not post the required bond, the animals are
transferred to the animal care agency, not sold as in an ordinary lien foreclosure situation. Nonetheless, it is much closer
to lien foreclosure than a forfeiture claim in light of the text,
context, and legislative history, which strongly indicate that
the legislature sought to create, not a punitive forfeiture
claim, but an equitable proceeding in which an animal care
agency is either assured of recovering its expenses when a
respondent posts the required bond, or in which it can mitigate its expenses and mitigate the suffering of animals
that may have already suffered abuse or neglect. See ORS
167.305(3), (5), (6).
          It is well established under the current animal welfare statutes that animals are the victims of animal abuse and
neglect crimes. Cf. State v. Crow, 

, 

 (2018), rev den, 

 (2019) (observing in construing related statute that “the legislature’s focus was on the
development of a comprehensive statutory scheme [of animal
cruelty laws] to protect individual animals from abuse and
neglect, … all of which are predicated on preventing the suffering of animals, rejecting the defendant’s argument that the
public is the single collective victim of the defendant’s unlawful possession of animals, and concluding that, for purposes
of merger, the legislature intended each unlawfully possessed
animal to be a separate victim”); State v. Hess, 

, 

, rev den, 

 (2015) (concluding
that, for purposes of merger, animals are the victims of animal neglect, and, thus, the trial court did not err in entering
Cite as 

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convictions on all 45 of the animal-neglect counts). That context—and particularly the findings and declarations in ORS
167.305—are inconsistent with the view that ORS 167.347
treats an animal victim like chattel that is forfeited by criminal conduct—let alone chattel that “attains some guilt in the
commission of the crime.” Curran, 

.
         On the latter point, although it is conceivable that
an animal could be employed to facilitate the commission
of the crime or obtained from the unlawful proceeds of the
commission of a crime, that was not true of the animals in
this case nor does that uncommon circumstance appear to
be what the statutory scheme as a whole and ORS 167.347
in particular were intended to address. Cf. Curran, 

 (involving controlled substances).
         In any event, the legislature considered animals to
be the victims of the underlying crime and “sentient beings
capable of experiencing pain, stress, and fear.” That meaningfully distinguishes the animals that are the subjects of
a petition under ORS 167.347 from chattels that can attain
“guilt” in the commission of a crime. ORS 167.305; see Crow,

. The purpose of the proceeding that the
legislature created in ORS 167.347 is to equitably compensate for the obligation to care for the animals, not to punish
a defendant by taking chattel that was employed to facilitate the commission of a crime or by taking the defendant’s
ill-gotten gains.
         In sum, a proceeding under ORS 167.347 is not
exactly a lien foreclosure, but its overall nature bears a
greater resemblance to lien foreclosure than to any forfeiture claim that would have existed in Oregon in 1859. The
ORS 167.347 proceeding does not require a factual finding—
customarily tried to a jury—that the property in question
was “guilty” in some way. Instead, the required determinations are the kind of legal questions and equitable determinations that are customarily made by the court: whether
there was probable cause to believe that the animal was
subjected to a violation of the animal welfare laws, and the
amount of a bond for the costs already incurred and reasonable costs expected to be incurred by the time of trial by the
animal care agency.
72                                 State/Klamath County v. Hershey

         Although we agree with the dissent that the issue
is close, we ultimately conclude, based on the foregoing
analysis, that this claim is most akin to a lien foreclosure
claim in general, which was not entitled to a jury trial at
the time of the adoption of the Oregon Constitution, and
it does not include the kind of fact finding that would customarily be tried to a jury. “A lien action is presumptively
equitable and is to be tried by the court.” 53 CJS Liens
§ 52 (2020). Suits pertaining to liens were generally heard
by courts sitting in equity at the time of the adoption of
Article I, section 17.11 See, e.g., Brown v. Gilman, 

, 

 (1819) (“It is not necessary to prove affirmatively the intent to retain a lien. It is a natural equity[.]”);
Sleight v. Read, 

 (NY Sup Ct), aff’d, 

 (NY Gen Term 1854) (“On a foreclosure, the surplus
moneys brought into court are subject to its jurisdiction as
a court of equity[.]”); Clarke v. Southwick, 5 F Cas 981, 981
(Cir Court, Dist of Mass 1852) (“This is a bill in equity, to
establish and enforce a lien on certain mills, lands, and
their appurtenances[.]”); see also Occidental Realty Co. v.
Palmer, 

, 

 (NY App Div
1907), aff’d, 

, 

 (1908) (noting that
specific type of lien was firmly established in England
“more than half a century ago, … and that equity will
enforce it”). The fact that the legislature chose forfeiture
as a consequence of failing to post a required bond does
not make this proceeding “of like nature” to a forfeiture
claim that would have been tried to a jury at common
law.
         This is not the kind of claim for which there is a
right, under Article I, section 17, to a jury trial.
           Affirmed.

    11
       It appears that actions on liens established by statute were either heard
in courts of equity or as provided in the statute. It does not appear that lien statutes established that statutory lien foreclosure actions were customarily heard
by juries. See, e.g., Steamer Gazelle v. Lake, 

 (1854) (“If the new
statute substituted no other statutory remedy for the one abolished, the party
would then be compelled to resort to his common law remedy, and proceed to
enforce his claim by an action at law against the persons on whose account the
materials were furnished, or by bill in equity to subject the boat to the payment
of the demand. But the new statute gives a specific remedy.”). Here, the statute
does not provide for a jury.
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         SHORR, J., dissenting.
         I respectfully dissent from the majority opinion primarily because I disagree with the majority’s conclusion that
the procedure in ORS 167.347, addressing the statutory forfeiture of an impounded animal, is “more akin to a lien foreclosure than a true forfeiture” proceeding. 304 Or App at 60.
Although the issue is close, I would conclude that the procedure is closer to what the legislature labelled it, a forfeiture,
rather than the foreclosure of a lien. See ORS 167.347(3) (providing that the court “shall order immediate forfeiture of the
animal”). I reach that conclusion primarily because a respondent to a forfeiture proceeding under ORS 167.347 loses the
animal entirely upon a finding of probable cause and the failure to post a bond. Unlike a typical lien foreclosure procedure, the respondent has no right to any repayment should
the value of the impounded animal exceed the cost of the care
incurred by the county or animal care agency. That process
and resulting penalty makes the procedure more akin to a
forfeiture than a foreclosure. Because, as the majority correctly points out, a party was entitled at the time of the adoption of the Oregon Constitution to a jury trial on a forfeiture
proceeding, I would hold that respondent is entitled to a jury
trial under Article I, section 17, of the Oregon Constitution
before the forfeiture of his animals. State v. 1920 Studebaker
Touring Car et al., 

, 

 (1926).
         To frame this short dissent, it is important to define
the terms forfeiture and foreclosure. These are legal terms of
art. As the majority notes, a forfeiture is a penalty of loss of
property for having committed a particular act. 

 It is the
“divestiture of property without compensation” and a “loss
of a right, privilege, or property because of a crime, breach
of obligation, or neglect of duty.” Black’s Law Dictionary 792
(11th ed 2019) (emphasis added). Here, respondent’s animals
were forfeited based on (1) a finding that there was probable
cause to believe that respondent committed a crime in violation of ORS 167.325 (animal neglect in the second degree)
and (2) respondent’s failure to post a $75,000 bond for the
animals’ past and future care.
       A foreclosure, by contrast, is a “legal proceeding to
terminate a mortgagor’s interest in property, instituted by
74                         State/Klamath County v. Hershey

the lender (the mortgagee) either to gain title or to force a
sale in order to satisfy the unpaid debt secured by the property.” Black’s at 789. The mortgagee’s security in the property is a lien. Although others besides mortgagees can hold a
lien, a lien, in general, is a “security right given to a person
to sell or seize the collateral subject to the lien.” Westwood
Homeowners Assn., Inc. v. Lane County, 

, 

 (1993), adh’d to as modified on recons, 

,

 (1994) (internal citation and quotation marks
omitted). There are a number of statutory liens, including
a construction lien, innkeeper’s lien, attorney’s lien, among
many others. See ORS chapter 87 (describing statutory
liens). As the majority observes, there is also an existing
statutory lien for the care of impounded animals under ORS
87.159, which provides for the potential sale of the animal
through a separate foreclosure proceeding.
          What distinguishes a foreclosure from a forfeiture
is that, in a foreclosure, there is a process for the distribution
of the proceeds from the sale of the chattel, including for the
potential return of any excess money to the debtor after certain payments, including to reimburse the lienholder, have
been made. The separate foreclosure process for a statutory
lien under ORS 87.159 on impounded animals provides that
proceeds from the sale of the animals shall be paid in the
following order: (1) to cover the cost of the sale of the animal,
(2) to repay the indebtedness of the lienholder, (3) to satisfy
any subordinate liens, and (4) to the county treasurer, who
can then disburse any remaining amount to the original
debtor upon the debtor’s timely filing of a claim. See ORS
87.206 (providing for disposition of proceeds of foreclosure
sale, including for a foreclosure sale of animals subject to a
statutory lien under ORS 87.159). Thus, a person who loses
an animal through the foreclosure process has the opportunity to claim any remaining value if the sale of the animal
results in funds exceeding the cost of the debt incurred in
the care and sale of such animal. In a forfeiture process, the
animal is forfeited entirely and there is no right to recover
any excess value from any sale of the animal under ORS
167.347.
          What are we to make of that distinction? The most
reasonable inference is that, when animals are forfeited
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under ORS 167.347 based on a finding of probable cause to
believe that a crime has occurred, the loss of the animals
without an opportunity by the owner to recover any remaining value is a penalty in the form of a forfeiture of the animals and not a foreclosure process. The respondent, who is
also a criminal defendant in a parallel criminal proceeding, will suffer the complete forfeiture of his animals—with
no apparent right to compensation of their equity as in a
foreclosure—upon a failure to post a bond and a court’s finding of probable cause. This may occur even if the respondent-defendant is later acquitted of the underlying charge of animal neglect. If a particular respondent-defendant is later
found beyond a reasonable doubt to have committed animal
neglect, the prior forfeiture of the animal still serves as a
penalty.1 That meets the definition of a forfeiture, namely,
a “divestiture of property without compensation” and a “loss
of a right, privilege, or property because of a crime, breach
of obligation, or neglect of duty.” Black’s at 792. The forfeiture process in ORS 167.347 is distinct from the foreclosure
process in ORS 87.159. If anything, the existence of a separate foreclosure process in ORS 87.159 is context for the
conclusion that the forfeiture proceeding in ORS 167.347 is
something other than a foreclosure.
         I acknowledge that courts, not jurors, are typically asked to determine whether there is probable cause
to believe that a crime has been committed—albeit not generally, as here, at the conclusion of a proceeding. However,
that is still a process of applying the law to facts. That is a
process that jurors are capable of and that jurors do every
day when applying other legal standards—for instance,
“beyond a reasonable doubt” or a “preponderance of the evidence”—to the facts. I also acknowledge that this is not an
exact fit with forfeiture’s historical background outside or
within the United States, but the process otherwise functions like a traditional forfeiture. As the majority points out,
forfeiture, at least prior to its adoption in the United States,
    1
      I would expect that, in many cases of proved animal neglect, it may be that
the county or animal care agency’s cost of caring for the seized animal exceeds
the animal’s ultimate economic value (without regard to the animal’s intrinsic value as a living being). However, under the statute, the forfeiture process
results in a complete loss of the animal regardless of the value of respondent’s
ownership.
76                              State/Klamath County v. Hershey

was “founded on the idea that a chattel attains some guilt
in the commission of a criminal act.” State v. Curran, 

, 

 (1981) (noting that the action for seizing property that caused death, a “deodand,” was followed in
English common law but was not carried over to the law of
the United States).2 I agree that forfeiture historically did
not arise from the seizure and sale of chattel that was the
alleged victim of the crime. Forfeiture has been used not
only to penalize, but to make underlying crimes unprofitable, seize equipment needed to carry out crime, and allow
law enforcement to recoup costs of investigating and prosecuting a crime. 

. Forfeiture in the United States
has been traditionally used to seize criminal contraband or
contraband per se and “derivative contraband,” otherwise
legal items used to carry out crime. 

.
          I also appreciate that animals are living beings
different from other forms of property. The legislature recognized that and intended to speed the process for adoption of animals when there was probable cause to suspect
that they had been abused. Nevertheless, that process still
serves as a penalty on the owner through the forfeiture
of the owner’s property—based on a very low standard of
proof and following a failure to post a bond—without a jury
trial, a right that existed at the time of the adoption of the
Oregon Constitution. Regardless of the legislative purpose,
the effect of the statute is to penalize persons through a forfeiture of their property based on a finding that there was
probable cause to believe that they violated criminal law. In
addition, beyond the forfeiture process, the government has
the existing option to seize the animals and proceed with
the existing foreclosure process that is decided by the court.
         In sum, despite my agreements with the majority
on the historical use of forfeiture and the legislature’s recognition of animals as sentient beings different than other
kinds of property, I disagree with the majority’s conclusion
that the forfeiture process under ORS 167.347 is more akin
to foreclosure than forfeiture. There is a penalty applied
in the forfeiture process under ORS 167.347 upon a person

    2
      I acknowledge that history even though it is difficult to understand how
chattel ever attains “guilt.”
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having committed a particular act or, more accurately,
based on a finding of probable cause that the person committed the act. That occurs even if the respondent-defendant is
later acquitted of the alleged crime against an animal. As a
result, I would conclude that the statutory forfeiture process
in ORS 167.347 is closer to what the legislature named it,
a forfeiture for which there traditionally was and is a jury
right under Article I, section 17. See M. K. F. v. Miramontes,

, 

 (2012) (examining whether
claim was of “like nature” to ones that were tried to a jury at
the time Article I, section 17 was adopted); Studebaker, 

 (stating that “[t]here can be no doubt” that, at
the time of the adoption of the Oregon Constitution, property could not be forfeited except in actions triable by jury).
I therefore respectfully dissent.