State v. Hershey

• Decision Date: 11 August 2022
• Docket Number: CC 17CR66503 (SC S067825)
• Citation: 370 Or. 200,515 P.3d 899
• Parties: 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.
• Court: Oregon Supreme Court

370 Or. 200

515 P.3d 899

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 (SC S067825)

Supreme Court of Oregon.

Argued and submitted September 14, 2021

Resubmitted January 25, 2022

August 11, 2022

Christopher L. Cauble, Cauble, Selvig, & Whittington, LLP, Grants Pass, argued the cause and filed the brief for petitioner on review.

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.

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 , 304 Or App 56, 466 P.3d 987 (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. 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 , 304 Or App 56, 466 P.3d 987. 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 , 27 Or. 219, 230, 40 P. 158 (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 , 359 Or. 168, 173, 376 P.3d 998 (2016) ; accord State v. 1920 Studebaker Touring Car et al. , 120 Or. 254, 263, 251 P. 701 (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 , 368 Or. 274, 280, 284, 491 P.3d 60 (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. Id. at 280, 491 P.3d 60 ; see also M. K. F. v. Miramontes , 352 Or. 401, 416, 287 P.3d 1045 (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 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 , 181 Or App 57, 64, 45 P.3d 137, rev den , 334 Or. 632, 54 P.3d 1042 (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 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 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...