State v. Branstetter
| Decision Date | 16 August 2001 |
| Citation | 332 Or. 389,29 P.3d 1121 |
| Parties | STATE of Oregon, Respondent on Review, v. William Thomas BRANSTETTER, Petitioner on Review. Pioneer Humane Society, Respondent on Review, and State of Oregon, Respondent on Review, v. William Thomas Branstetter, Petitioner on Review. |
| Court | Oregon Supreme Court |
Jay Edwards, Salem, argued the cause and filed the petition for petitioner on review.
Katherine H. Waldo, Assistant Attorney General, Salem, argued the cause for respondent on review State of Oregon. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
No appearance for respondent on review Pioneer Humane Society Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, and RIGGS, Justices.2
Defendant seeks review of a Court of Appeals' decision dismissing, for lack of jurisdiction, his appeal from a trial court order that forfeited certain animals that he owned to an animal care agency. Although the trial court's forfeiture order was issued during, and had the same case number as, defendant's prosecution on charges of first-degree animal neglect, ORS 167.330, the forfeiture order was based on a different statute, ORS 167.347. That statute provides for forfeiture of animals that have been impounded pending final disposition of a criminal animal-neglect charge, and does not make the forfeiture contingent on the defendant being found guilty in the criminal case. The Court of Appeals concluded that the forfeiture proceeding and order were part of the criminal action against defendant and, therefore, could not be appealed, because that criminal action had ended in acquittal. State v. Branstetter, 166 Or.App. 286, 289-90, 1 P.3d 451 (2000).3 We hold that the forfeiture order arose out of a "special statutory proceeding" and, thus, was appealable under ORS 19.205(4), a statute that authorizes appeals from such proceedings. We therefore remand the case to the Court of Appeals for consideration of the remaining assignments of error.
In January 1997, the Umatilla County Sheriff's Department received a complaint that defendant's animals—11 horses and one donkey—were being neglected. A deputy investigated the complaint, found evidence of neglect, and applied for a warrant to impound the animals, as provided in ORS 167.345(2).4 A search warrant issued and the animals were impounded and placed into the care of the Pioneer Humane Society ("the humane society").5
Defendant was arrested and charged with 12 counts of first-degree animal neglect. ORS 167.330. His first trial on those charges ended in a mistrial. Before defendant was tried again, the humane society filed a petition in the criminal action, as authorized by ORS 167.347(1),6 seeking forfeiture of defendant's animals. The state moved to become a co-petitioner in the forfeiture matter; that motion was granted over defendant's objection.
After a hearing respecting the forfeiture petition, ORS 167.347(2),7 the court found that the petitioners had established probable cause to believe that the animals had been neglected in violation of ORS 167.330, and it ordered the animals forfeited unless defendant posted a $2,700 bond (which the court found to be the amount expended by the humane society in caring for the animals from the date of impoundment until the date of the order).8 When defendant failed to post the bond, the trial court entered an order of forfeiture. Thereafter, defendant was tried for the second time on the criminal animal-neglect charges. He was acquitted on all counts. The acquittals had no effect on the forfeiture order.
After his acquittal, defendant filed a timely notice of appeal from the forfeiture order, attempting to challenge it on various constitutional grounds. However, the state argued in its respondent's brief in the Court of Appeals that the forfeiture order was unappealable and, specifically, that the jurisdictional statute on which defendant relied, ORS 138.053(1), was inapplicable, because it does not provide for an appeal from an acquittal.
A majority of a panel of the Court of Appeals agreed with the state and dismissed the appeal. In doing so, the Court of Appeals also rejected an alternative theory of appellate jurisdiction, viz., that the forfeiture order was appealable under ORS 19.205(4), because it arose out of a "special statutory proceeding."9 After considering the case law surrounding ORS 19.205(4), the court concluded that, to qualify as a special statutory proceeding under that statute, a proceeding must be separate from any other proceeding. Branstetter, 166 Or.App. at 290,1 P.3d 451. The court concluded that a forfeiture proceeding under ORS 167.347 could not fulfill the separateness requirement because, by the express wording of ORS 167.347, the petition that initiates a forfeiture proceeding must be filed "in the criminal action." Id. at 295, 1 P.3d 451.10 We allowed defendant's petition for review.
Defendant contends that the Court of Appeals erred in determining that it was without jurisdiction to consider his appeal. Defendant acknowledges that the right to appeal is purely statutory, State v. K. P., 324 Or. 1, 4, 921 P.2d 380 (1996), but argues that the order at issue is appealable under one or both of the statutes that the Court of Appeals considered and dismissed as inapplicable.
Because the case was brought in the criminal proceeding, we first consider defendant's arguments with respect to ORS 138.053(1), which is a part of the criminal procedure code. That statutes provides:
The issue need not detain us long. As noted, the Court of Appeals concluded that ORS 138.053(1) does not authorize an appeal from an acquittal. It reasoned:
Branstetter, 166 Or.App. at 289-90, 1 P.3d 451 (emphasis in original). We agree.
We turn to defendant's alternative theory—that the forfeiture order arose out of a "special statutory proceeding" and therefore is appealable under ORS 19.205(4). As noted, the Court of Appeals rejected that theory on the basis of case law that the Court of Appeals read to require that a special statutory proceeding cannot be a part of but, instead, must be separate from, any other proceeding. The Court of Appeals concluded that a forfeiture proceeding could not fulfill the separateness requirement, because the filing direction in ORS 167.347 expressly makes the proceeding part of another action.
In arguing the contrary view, defendant adopts the position articulated by the Court of Appeals' dissent—that it is erroneous to conclude that, simply because ORS 167.347 permits a petition for forfeiture be filed in such action, the forfeiture proceeding provided in that statute is part of that action. Defendant (and the Court of Appeals' dissent) suggest that the fact that the forfeiture proceeding is essentially civil in nature, the fact that neither the outcome of the forfeiture proceeding nor the outcome of the criminal action has any effect on the other proceeding, the fact that there are differing standards of proof required for forfeiture as opposed to conviction in the criminal action, and the fact that the parties are different in the forfeiture proceeding and the civil action, all point to a conclusion that the forfeiture proceeding is separate from the criminal action and is a special statutory proceeding for purposes of the appellate review statutes.
The parties agree that, for purposes of ORS 19.205(4), a "special statutory proceeding" must be "separate" from any other proceeding. In fact, this court's case law establishes that "separateness" in some sense is a necessary attribute of a special statutory proceeding. See, e.g., State v. Threet, 294 Or. 1, 5, 653 P.2d 960 (1982)
(illustrating requirement). The parties part company, however, over how separateness is to be assessed. The state appears to argue that formal separateness, i.e., separate case names and numbers, is required. Consistent with that formalistic approach, the state suggests that the express authorization in ORS 167.347 that a forfeiture petition may be filed "in the criminal action" establishes the legislature's intent to create integrated, rather than separate, proceedings for all purposes. Defendant advocates for a more functional approach to the problem—one that looks at identity of issues and parties and at whether and how the proceeding at issue affects and is affected by the related proceeding.
We begin by noting that the state's approach is undermined significantly by the fact that, although ORS 167.347 permits a forfeiture proceeding to be filed before the outcome of the criminal case, it does not require such a filing. Furthermore, a separate statute, ORS 167.350, authorizes forfeiture "in addition to * * * any other sentence," when a defendant is found guilty of the underlying criminal act. We now turn to the cases that discuss and apply the...
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State v. Branstetter
...On review, the Supreme Court reversed our decision and remanded for us to determine the merits of defendant's claims. State v. Branstetter, 332 Or. 389, 29 P.3d 1121 (2001). After considering defendant's arguments on the merits, we now In January 1997, a search warrant was executed at the p......
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State v. Hershey
...against the owner, as the forfeiture proceeding is entirely separate from the criminal prosecution. See State v. Branstetter , 332 Or. 389, 398-99, 29 P.3d 1121 (2001) ( Branstetter I ). Whether the owner is innocent or guilty of the criminal charge is of no consequence to a proceeding unde......
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Powell v. Bunn
...use a word in its broad sense where the circumstances to which it is intended to apply also are broad. See, e.g., State v. Branstetter, 332 Or. 389, 403, 29 P.3d 1121 (2001) (citing State ex rel Gattman v. Abraham, 302 Or. 301, 311, 729 P.2d 560 (1986), for the proposition that "`cause' was......
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