State/Klamath County v. Hershey

                                       200

Argued and submitted September 14, 2021, resubmitted January 25; decision of
   Court of Appeals and order of circuit court are affirmed August 11, 2022


                    STATE OF OREGON,
                   Respondent on Review,
                               v.
               KENNETH LAWRENCE HERSHEY,
                     Petitioner on Review.
                       KLAMATH COUNTY,
          a political subdivision of the State of Oregon,
                       Respondent on Review,
                                  v.
             KENNETH LAWRENCE HERSHEY,
                        Petitioner on Review.
          (CC 17CR66503) (CA A166962) (SC S067825)
                                    

     After Klamath County Animal Control impounded Hershey’s animals, the
Klamath County district attorney filed a petition in the circuit court pursuant to
ORS 167.347, asserting that there was probable cause to believe that the animals
had been subjected to criminal mistreatment and seeking immediate forfeiture
of the impounded animals or, in the alternative, the payment of a security deposit
or bond to cover the costs of caring for the animals during the pendency of the
related criminal proceeding. Hershey filed a motion for a jury trial on the petition, which the court denied. The court subsequently found probable cause of
criminal mistreatment of the animals and ordered payment of a bond to cover the
costs of their care. After Hershey failed to pay the bond, the court issued an order
forfeiting the animals. Hershey appealed the court’s order, arguing that, under
Article I, section 17, of the Oregon Constitution, a party has a right to a jury in a
proceeding brought under ORS 167.347. Held: A proceeding brought under ORS
167.347 does not involve a claim for relief that would have been tried to a jury at
the time of the adoption of the Oregon Constitution, and, therefore, is not one to
which the Article I, section 17, jury trial right applies.
     The decision of the Court of Appeals and the order of the circuit court are
affirmed.



   On review from the Court of Appeals.*
   Christopher L. Cauble, Cauble, Selvig, & Whittington,
LLP, Grants Pass, argued the cause and filed the brief for
petitioner on review.
______________
   * Appeal from Klamath County Circuit Court, Andrea Janney, Judge. 

, 

 (2020).
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    Kirsten M. Naito, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review
State of Oregon. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
    No appearance on behalf of respondent on review
Klamath County.
    David B. Rosengard, Animal Legal Defense Fund, Portland,
filed the brief for amici curiae Animal Legal Defense Fund
and Oregon Humane Society.
    Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, Garrett, and DeHoog, Justices.…
   DUNCAN, J.
   The decision of the Court of Appeals and the order of the
circuit court are affirmed.




______________
    … Nakamoto, J., retired December 31, 2021, and did not participate in the
decision of this case.
202                               State/Klamath County v. Hershey

         DUNCAN, J.
         This case involves a special statutory proceeding
brought under ORS 167.347. As relevant here, that statute
provides that, when an animal is being held by an animal
care agency pending the outcome of a criminal action for
mistreatment of the animal, a district attorney, acting on
behalf of the animal care agency, may file a petition in the
criminal action asking the circuit court to order the forfeiture of the animal unless the defendant in the criminal
action (or another person with a claim to the animal) pays
a security deposit or bond to cover the agency’s costs of caring for the animal. The question presented here is whether,
under Article I, section 17, of the Oregon Constitution, a
party has a right to a jury trial in a proceeding brought
under ORS 167.347.
         The circuit court ruled that a party does not have
such a right. The Court of Appeals affirmed, in a divided
opinion. State/Klamath County v. Hershey, 

,

 (2020). For the reasons explained below, we
affirm.
         The relevant facts are few and undisputed. In
September 2017, Klamath County Animal Control impounded
22 dogs, three horses, and seven chickens from Hershey’s
property. The state subsequently charged Hershey with
three counts of second-degree animal neglect, one count for
each type of animal. ORS 167.325. In December 2017, the
Klamath County district attorney filed a petition pursuant
to ORS 167.347 on behalf of the county. In the petition, the
district attorney asserted that (1) there was probable cause
to believe that the animals had been subjected to treatment
constituting second-degree animal neglect, (2) Hershey had
been charged with three counts of that crime, and (3) the
county had incurred expenses relating to the care of the
animals and expected to continue to incur those expenses
as the criminal action continued. Based on those asserted
facts, the district attorney asked the circuit court
    “for a judgment against [Hershey1] as follows:

    1
      The petition refers to Hershey as “Defendant-Respondent” because he was
both the defendant in the criminal action and the respondent in the action brought
under ORS 167.347. For the sake of simplicity, we refer to Hershey by name.
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    “1. For the immediate forfeiture of the impounded animals and for such other relief as may be just and equitable;
    or
    “2. In the alternative, requiring [Hershey] (or any other
    claimant) to post a security deposit or bond, within 72
    hours of the hearing of this matter, in an amount sufficient
    to repay all reasonable costs incurred, and anticipated to
    be incurred, by the [county] in caring for the impounded
    animals from the date of the initial impoundment to the
    date of the trial in the underlying criminal matter.”
In response, Hershey filed a motion for a jury trial on the
district attorney’s petition. The district attorney opposed
Hershey’s motion and, after a hearing, the circuit court
denied it.
         The circuit court then held a hearing on the district
attorney’s petition, at the conclusion of which the court made
the findings required by ORS 167.347 and ordered that the
animals be forfeited unless Hershey paid a $75,000 bond.
Hershey did not pay the bond, and the court issued an order
forfeiting the animals. Hershey then initiated this appeal.2
         As mentioned, the Court of Appeals affirmed.
Hershey, 

. On Hershey’s petition, we allowed
review to address whether a party has an Article I, section 17, right to a jury in a proceeding brought under ORS
167.347.
         Article I, section 17, provides that “[i]n all civil cases
the right of Trial by Jury shall remain inviolate.” That provision “is not an enlargement, but a guarantee, of the right as
it existed before the adoption of the constitution.” Raymond
v. Flavel, 

, 

 (1895). Article I, section 17,
guarantees a jury trial in two categories of cases: (1) cases
“in which the right to a jury trial was customary at the time
the Oregon Constitution was adopted” in 1857 and (2) cases
“of like nature.” Horton v. OHSU, 

, 

 (2016); accord State v. 1920 Studebaker Touring Car
    2
      In the underlying criminal case, Hershey entered an Alford plea to the
charge based on the neglect of the dogs. The circuit court convicted him of that
charge and, pursuant to a plea agreement, dismissed the other two charges. As
a result of his conviction, Hershey is barred from owning dogs in Oregon, and, on
review, challenges only the forfeiture of the horses and chickens.
204                                State/Klamath County v. Hershey

et al., 

, 

 (1926) (“[T]he constitutional
right of trial by jury is not to be narrowly construed, and is
not limited strictly to those cases in which it had existed
before the adoption of the Constitution, but is to be extended
to cases of like nature as they may hereafter arise.”).
         To determine whether the Article I, section 17, jury
trial right extends to a particular claim, we must examine
“the nature of the relief requested” to determine whether
the particular “request for relief would have been tried to a
court without a jury at common law or, instead, would have
been tried to a jury.” Deep Photonics Corp. v. LaChapelle,

, 

 (2021) (internal quotation marks and emphasis omitted). One indication that the
request for relief would have been tried to a court without a
jury is that the relief sought is equitable, as opposed to legal.

; see also M. K. F. v. Miramontes, 

,

 (2012) (noting that, historically, “cases properly brought in equity courts or by courts exercising equitable jurisdiction were tried by judges and not by juries”).
         ORS 167.347 itself evidences the nature of the relief
at issue in a proceeding like this one. As relevant here, the
statute authorizes a circuit court, upon a finding that there
is probable cause to believe that an animal has been criminally mistreated, to (1) require a security deposit or bond
to cover the costs of caring for the animal as it is being held
in an animal care facility and (2) order the forfeiture of the
animal if the security deposit or bond is not paid.3 The plain

   3
       ORS 167.347 provides, in part:
       “(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 [animal
   abuse, animal neglect, and animal sexual assault crimes], 167.340 [animal
   abandonment], 167.355 [animal fighting], 167.365 [dogfighting] or 167.428
   [cockfighting], 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. …
       “(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.
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purpose of ORS 167.347 is to protect agencies from having
to pay costs that are the legal responsibility of an animal’s
owner.4 See State v. Branstetter, 

, 

, rev den, 

 (2002) (Armstrong, J., concurring)
(“What ORS 167.347 does is to provide a way to implement
the legal principle that, despite the impoundment, the obligation to provide adequate care for the animals remains the
owner’s, not the government’s.”). A forfeiture results only if
the owner cannot fulfill that preexisting obligation (by paying

        “(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.
        “…
        “(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 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 [providing for post-conviction forfeiture of a
    mistreated animal and post-conviction repayment of reasonable costs of care]
    and 167.435 [requiring, inter alia, post-conviction forfeiture of birds used for
    cockfighting] and ORS chapters 87 [statutory liens] and 88 [foreclosure of
    liens].”
    4
      ORS chapter 167 broadly imposes the legal obligation to ensure minimum
care of domestic animals and equines. See, e.g., ORS 167.340 (defining crime of
animal abandonment); ORS 167.325 (defining crime of second-degree animal
neglect); ORS 167.310(9) (defining “minimum care”); see also State v. Newcomb,

, 

 (2016) (noting that “the obligation to provide minimum care arises for anyone who has custody or control of an animal”).
206                              State/Klamath County v. Hershey

a security deposit or posting a bond) and enables the state to
mitigate costs while ensuring that the animals receive the
care that is legally required—costs that, prior to the enactment of ORS 167.347, agencies had struggled to recover. See
Exhibit L, Senate Committee on Judiciary, SB 653, Apr 18,
1995 (statement of Sharon Harmon, Operations Director,
Oregon Humane Society) (noting, prior to the enactment
of ORS 167.347, that post-conviction restitution of animal
care costs, “while often demanded, is rarely fulfilled,” resulting in “private and public agencies picking up the tab”). By
requiring animal owners to pay a security deposit or post a
bond for the care of their animals, and by authorizing the
forfeiture of animals when their owners do not pay for that
care, the statute thereby prevents the unjust enrichment of
the owners while ensuring that the animals will receive the
care that is legally required.5 Thus, the “nature of the relief
requested” in a proceeding brought under ORS 167.347 is
equitable, in that the statute helps ensure that animal care
agencies are not required to cover costs for care that animal
owners have a legal obligation to pay.
         The legislative history of ORS 167.347 confirms that
the nature of the relief that the statute provides is protection against the transfer of animal owners’ costs to animal
care agencies. Prior to the enactment of ORS 167.347, the
legislature enacted ORS 87.159, which provides that, when
an agency has provided care for an impounded animal, the
agency has a lien on the animal for the reasonable costs
of care of the animal and may retain the animal until the
owner has paid the lien. Or Laws 1989, ch 349, § 2.6 But that
statute did not protect agencies from incurring costs in the
first instance, and, in some situations, those costs were not

   5
     ORS 167.348(1) provides that, if an animal is forfeited to an agency under
ORS 167.347, the agency may place the animal with a new owner only if the new
owner “execute[s] an agreement to provide minimum care to the animal.”
   6
     ORS 87.159(1) provides:
       “A person who, or governmental agency that, transports, pastures, feeds,
   cares for or provides treatment to an animal that has been impounded under
   ORS 167.345 has a lien on the animal in the possession of the person or governmental agency for the reasonable charges for transportation, pasturage,
   feed, care or treatment provided by the person or governmental agency, and
   the person or governmental agency may retain possession of the animal until
   those charges are paid.”
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recoverable, such as when an owner did not want to reclaim
the animal or when an owner was unable to pay the lien.
         The limitations of using liens on animals to recover
the costs of their care came to the attention of the legislature
after one county incurred approximately $100,000 in costs
caring for impounded animals pending resolution of an animal abuse case. Exhibit R, House Committee on Judiciary,
Subcommittee on Crime and Corrections, HB 3377, Mar 22,
1995 (statement of Professor Pamela Frasch) (describing “the
notorious Kittles case in Astoria” where over 100 dogs were
found living on a bus). Motivated by that case, the legislature
enacted Senate Bill 653, codified as ORS 167.347, the statute at issue here, to provide an alternative method to protect agencies from suffering significant losses as a result of
having to care for impounded animals. See Tape Recording,
House Committee on Judiciary, SB 653, May 9, 1995,
Tape 30, Side A (comment of Rep Veral Tarno) (noting that
the bill was intended to address problems with the current statutory scheme evinced by the Kittles case); Tape
Recording, Senate Committee on Judiciary, SB 653, Apr 18,
1995, Tape 112, Side A (statement of Sharon Harmon,
Operations Director, Oregon Humane Society) (noting that
post-conviction restitution of animal care costs “just doesn’t
happen”); see also Branstetter, 

(Armstrong, J., concurring) (“In ORS 87.159, the legislature
gave the animal care agency a lien on the animals to cover
the cost of their care. In ORS 167.347, it provided a swifter
and more efficient method of achieving the same result.”).
ORS 167.347 was not intended to provide financial gain;
it was intended only to enable county animal shelters and
other animal care agencies to avoid “unnecessary expense.”
Exhibit K, Senate Committee on Judiciary, SB 653, Apr 18,
1995 (statement of Robert Bovett, Assistant County Counsel,
Lincoln County).
         As mentioned, whether the Article I, section 17,
jury trial right applies in a case depends on whether the
case is one “in which the right to a jury trial was customary at the time the Oregon Constitution was adopted”
or is “of like nature.” Horton, 

. We have not
found an exact historical analogue to a proceeding brought
under ORS 167.347. But ORS 167.347 is similar to a former
208                        State/Klamath County v. Hershey

Oregon statute that this court considered in In re Idleman’s
Commitment, 

, 

 (1933), that required
certain close relatives of “any person committed to a state
institution for the insane or the feeble-minded” to pay for
the care of the institutionalized person. 

 (construing
Or Laws 1931, ch 187). That statute authorized “summary
proceedings to enforce a relative’s liability created by the
statute to support an indigent member of his family.” 

. In Idleman’s, a husband who had been ordered to make
payments for the care of his wife while she was committed to
a state mental hospital challenged the statute, arguing that
it violated Article I, section 17, because it did not provide for
jury trials. This court rejected that argument on the ground
that, “in proceedings of the character now before us[,] trial
by jury was not available” at the time of the adoption of the
constitution. 

         Similarly, in Mallatt v. Luihn et al, 

, 695-
96, 

 (1956), this court held that a statute that
authorized the creation of a lien on a relative’s property to
enforce the relative’s support obligation, and provided that
a circuit court proceeding regarding the support obligation
was to “proceed as a suit in equity,” did not violate Article I,
section 17, because the issues in such a proceeding were “not
such as were triable by a jury at the time of the adoption of
the Constitution.” See also Miramontes, 

 (stating that the claims at issue in Idleman’s and Mallatt “were
of such a nature that they would have been tried to the court
at common law”).
        Thus, both Idleman’s and Mallatt show that proceedings to enforce a person’s legal obligation to care for
someone who is being held by and cared for by the state or
other government entity are not the types of proceedings
that were tried to a jury at the time of the adoption of the
constitution.
         To summarize, the nature of the relief that ORS
167.347 provides—relief from having to pay ongoing costs
for animal care when the animal’s owner is legally obligated
to pay for that care—is equitable, in that it protects against
unjust enrichment of the owner. In addition, this court has
held that there is no jury trial right in proceedings under
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statutes that, like the one at issue here, require a person
to reimburse the state for providing care that the person
has a legal responsibility to provide. Those two indicators
lead us to the conclusion that a proceeding brought under
ORS 167.347 does not involve a claim for relief that would
have been tried to a jury at the time of the adoption of the
constitution, and, therefore, is not one to which the Article I,
section 17, jury trial right applies.7
         In arguing otherwise, Hershey relies on two cases
involving in rem civil forfeitures: 1920 Studebaker Touring
Car, 

, and State v. Curran, 

, 

 (1981). Each of those cases involved the forfeiture of
automobiles allegedly used to transport contraband. In 1920
Studebaker Touring Car, this court held that the owner of
the vehicle at issue, who was not a defendant in the related
criminal action, was entitled to a jury trial under Article I,
section 17, before she could be deprived of the vehicle, which
was alleged to have been used by her husband to transport
liquor in violation of a prohibition law. 

. In
Curran, this court held that a convicted defendant, who was
the alleged owner of a vehicle used in the underlying crime
(possession of a controlled substance), was entitled to a jury
trial to determine any factual issues relevant to the forfeiture proceeding that had not been resolved in the related
criminal action. 

. According to Hershey, a proceeding brought under ORS 167.347 is of “like nature” to the
forfeiture proceedings at issue in 1920 Studebaker Touring
Car and Curran because “it is an action in which the State
can deprive an individual of their personal property because
of the property’s connection to an alleged crime.”
         Although a defendant’s failure to pay a security deposit or post a bond under ORS 167.347 may result
    7
      We note that our conclusion is consistent with the legislature’s express recognition that an animal owner’s failure to reimburse an agency for the costs
of caring for an animal, even in the absence of a conviction, may result in the
owner being unjustly enriched. Subsequent to the enactment of ORS 167.347, the
legislature amended ORS 87.159 to require, as relevant here, that, even where
an animal is found to have been seized without probable cause and a judgment
is entered in the defendant’s favor in the related criminal case, a court directing
return of the animal must “include an award to the [agency] of the full costs of
providing care to the animal” in order to prevent the owner “from being unjustly
enriched while having been relieved of the duty to provide an impounded animal
with minimum care.” Or Laws 2013, ch 719, § 9.
210                       State/Klamath County v. Hershey

in forfeiture of the defendant’s animals, that remedy is
of a different nature than the forfeitures at issue in 1920
Studebaker Touring Car and Curran. As the United States
Supreme Court has explained, in an in rem civil forfeiture
proceeding, “[i]t is the property which is proceeded against,
and, by resort to a legal fiction, held guilty and condemned
as though it were conscious instead of inanimate and insentient.” Various Items v. United States, 

, 

, 

 (1931); see also 1920 Studebaker Touring
Car, 

 (noting that the forfeiture procedure at
issue was not “an action in personam against some offending person” but, rather, “a special proceeding in rem against
specific property … because of some unlawful use having
been made of it in violation of the state prohibition law”).
Thus, the nature of the relief requested in an in rem civil
forfeiture proceeding is different than that sought in a proceeding brought under ORS 167.347, in that the relief sought
in an in rem civil forfeiture proceeding is not intended to
prevent the inequitable shifting of legal obligations. Instead,
it is intended to impose a consequence for past misconduct;
an in rem civil forfeiture proceeding is similar to a criminal
proceeding, in that, as the Supreme Court has observed, it
is based on a legal fiction that the property has committed a
crime. Various Items, 

; see also Plymouth Sedan
v. Pennsylvania, 

, 

, 

 (1965) (noting that an in rem civil forfeiture proceeding
is “quasi-criminal in character” in that “[i]ts object, like a
criminal proceeding, is to penalize for the commission of an
offense against the law”). In that way, an in rem civil forfeiture proceeding is markedly different from a proceeding
brought under ORS 167.347, which is not intended to impose
a consequence for past misconduct but is instead intended
to prevent the inequitable shifting of legal obligations. See
Branstetter, 

 (Armstrong, J., concurring)
(“The purpose of ORS 167.347 is to enforce the owner’s obligation to care for the animals; the statute does not impose a
penalty of any sort for any kind of misconduct.”). Given the
differences, we conclude that 1920 Studebaker Touring Car
and Curran do not control the outcome of this case.
         The decision of the Court of Appeals and the order
of the circuit court are affirmed.