State v. Hershey, 050620 ORCA, A166962

Docket Nº:A166962
Opinion Judge:TOOKEY, J.
Party Name: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.
Attorney:Julian Marrs argued the cause and fled 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 K...
Judge Panel:Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge. SHORR, J., dissenting.
Case Date:May 06, 2020
Court:Court of Appeals of Oregon

304 Or.App. 56 (2020)

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.

A166962

Court of Appeals of Oregon

May 6, 2020

Argued and submitted November 16, 2018.

Klamath County Circuit Court 17CR66503; Andrea M. Janney, Judge.

Julian Marrs argued the cause and fled 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.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

Case Summary: 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 [304 Or.App. 57] 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.

[304 Or.App. 58] 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.

[304 Or.App. 59] 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 [304 Or.App. 60] 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, 291 Or. 119, 132-33, 628 P.2d 1198 (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, 120 Or. 254, 264, 251 P 701 (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 [304 Or.App. 61] 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, 359 Or. 168, 243, 376 P.3d 998 (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. U.S. Gypsum Co., 345 Or. 272, 279, 193 P.3d 9 (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, 359 Or at 226 (summarizing M. K. F. v. Miramontes, 352 Or. 401, 404, 287 P.3d 1045 (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, 359 Or at 173. If a claim of that kind was customarily tried to a jury at that time, then Article I, section 17, preserves that right. Studebaker, 120 Or at 259 ("The right of trial by jury, guaranteed by the Constitution of this state, [304 Or.App. 62] 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, 345 Or at 279.

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, 120 Or at 269, and in Curran, 291 Or at 132-33. 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...

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