State v. Branstetter

• Decision Date: 22 March 2000
• Citation: 166 Or. App. 286,1 P.3d 451
• Parties: STATE of Oregon, Plaintiff, v. William Thomas BRANSTETTER, Defendant. Pioneer Humane Society, Petitioner-Respondent, and State of Oregon, Other-Respondent, v. William Thomas Branstetter, Respondent-Appellant.
• Court: Oregon Court of Appeals

1 P.3d 451

166 Or. App. 286

STATE of Oregon, Plaintiff, v. William Thomas BRANSTETTER, Defendant.

Pioneer Humane Society, Petitioner-Respondent, and State of Oregon, Other-Respondent, v. William Thomas Branstetter, Respondent-Appellant.

(CR970077; CA A100029)

Court of Appeals of Oregon.

Argued and Submitted April 20, 1999.

Decided March 22, 2000.

Jay Edwards, Salem, argued the cause and submitted the brief for appellant. Katherine H. Waldo, Assistant Attorney General, argued the cause for respondent State of Oregon. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

No appearance for respondent Pioneer Humane Society.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge, and ARMSTRONG, Judge.

ARMSTRONG, J.

Defendant appeals from a trial court order forfeiting his interest in eleven horses and a 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 sheriff's 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 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 P.2d 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, 653 P.2d 960. 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, 653 P.2d 960. 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 P.2d 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 185-86,864 P.2d 364 (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, 864 P.2d 364.

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, 864 P.2d 364. 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 appealable under what is now ORS 19.205(4). Id. at 187-88, 864 P.2d 364. 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 P.2d 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, 921 P.2d 380.

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 prosecut...