“ ‘[TJhere is no authority for the proposition that, without invoking “plain error,” we can reverse the trial court on grounds not argued to it.’ Much less is there any authority that we can reverse on grounds not argued to us.” (Emphasis in original; citation omitted.
How later courts described this case
- “ ‘[TJhere is no authority for the proposition that, without invoking “plain error,” we can reverse the trial court on grounds not argued to it.’ Much less is there any authority that we can reverse on grounds not argued to us.” (Emphasis in original; citation omitted.
- construing 1999 versions of ORS 167.347 and related statutes
Written by the judges who cited it.
The opinion
ARMSTRONG, J.,
concurring.
The majority correctly decides the issues that defendant both preserved at trial and raised on appeal. I agree with its result and join in its opinion. I write separately to discuss the ways in which the dissent’s analysis — which is not based on any argument that defendant actually made— seriously misconstrues both the language and purpose of the statutes.
The underlying issue in this case is whether defendant can avoid the statutory consequence of his refusal to *63 post a bond to pay for the care that his animals received while they were legally in state custody. I begin by describing the relevant statutes and how they functioned in this case, briefly looking at defendant’s arguments, and then explaining the problems with the dissent’s approach.
The sheriff impounded defendant’s animals under the authority of ORS 167.345(2) (1999), 1 which permitted that action, under the authority of a search warrant, if “there is probable cause to believe that any animal is being subjected to treatment in violation of ORS 167.315 to 167.340.” Those statutes define the crimes of animal abuse, animal neglect, and animal abandonment. ORS 167.345(3) then authorized the court to order the animals held in any animal care facility in this state, which must provide them with food and water and which may provide veterinary care. Defendant does not challenge the issuance of the search warrant or the impoundment of his animals at the Pioneer Humane Society, nor does he argue that he was entitled to regain custody of the animals before his acquittal in the criminal case.
An obvious practical problem that arises when animals are impounded under ORS 167.345 is the need to pay for the food, water, and care that they receive. In ORS 167.347, the legislature dealt with that problem by authorizing the court to impose the obligation to provide care on the animals’ owner. ORS 167.347(1) authorizes the agency that has custody of the impounded animals to file a petition in the criminal action asking the court to issue an order forfeiting the animals to the agency before final disposition of the criminal charge. 2 At the hearing on the motion, the petitioner has *64 the burden of proving that there was probable cause to believe that the animals were subjected to abuse, neglect, or abandonment. ORS 167.347(3)(a). The purpose of proving probable cause is to show that the animals are legally in the agency’s custody under ORS 167.345. The court’s determination of probable cause has no effect on the criminal case against the owner, as the forfeiture proceeding is entirely separate from the criminal prosecution. See State v. Branstetter, 332 Or 389, 398-99 , 29 P3d 1121 (2001).
If the court finds that probable cause exists, it will give the defendant 72 hours to post a security deposit or bond in an amount that the court determines to be sufficient to repay the reasonable costs that the agency has incurred, and anticipates incurring, in caring for the animals from the date of initial impoundment to the date of trial. The court may waive the requirement of a bond for good cause shown. If the owner fails to post the bond, and the court does not waive the requirement, the court will order the animals forfeited to the agency. ORS 167.347(3).
It is irrelevant to forfeiture under ORS 167.347 whether the owner is innocent or guilty of the criminal charge, because the purpose of the forfeiture is to pay. for the care of the animals, not to punish the owner. The provisions of ORS 167.347 are in addition to the criminal sanctions provided in ORS 167.350, which is the statute concerning forfeiture of the animals as a sanction on conviction. ORS 167.347(5). Thus, although a forfeiture proceeding under ORS 167.347 takes place in the criminal action, it does not arise from that action, is entirely separate from it, and, necessarily, is not governed by the rules that apply to criminal prosecutions. See Branstetter, 332 Or at 398-99 .
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. The legislature used the value of the animals and the owner’s desire not to lose them permanently as a source of payment for their care. 3 In ORS 87.159, the legislature gave the animal care agency a lien on *65 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.
Defendant’s arguments on appeal misunderstand the nature of this procedure. He treats forfeiture as a punitive measure rather than as a method of ensuring payment for the care of his animals during the pendency of the criminal case. Based on that understanding, he makes his acquittal of the criminal charges the foundation of all of his arguments. According to defendant, that acquittal made forfeiture, whatever the reason or authority for it, improper. In his brief, he states the question on appeal as whether he was denied due process and a right to a remedy “as a consequence of the forfeiture statute that did not provide for setting aside the forfeiture(s) subsequent to the acquittal(s).” His argument to the trial court that the forfeiture constituted an excessive fine was that it would be excessive to forfeit the animals if he were acquitted, because that would violate the prohibition on disproportional punishment. On appeal, he begins his argument with the statement that the statute’s failure to allow relief from the forfeitures based on his acquittals denies him due process because “it allows substantial punishment of the defendant in direct disregard of the acquittal(s).” “What meaning is there to a jury trial where the jury acquits, but the substantial punitive forfeitures remain in place based on the trial judge’s determination of guilty based on a ‘probable cause’ standard regarding] the same charged act(s)?”
The essential foundation of defendant’s argument, thus, is that the requirement of a bond and the forfeitures are punishment for the crimes with which he was charged. If defendant were correct on that point, he would be correct on all others. As we stated in our original opinion in this case, “[b]ecause of defendant’s acquittal, any fine for that offense would be excessive and beyond the trial court’s authority.” “There can be no sentence, probation or other sanction after an acquittal.” State v. Branstetter, 166 Or App 286, 296, 289-90 , 1 P3d 451 (2000), rev’d on other grounds 332 Or 389 , 29 P3d 1121 (2001) (emphasis in original). 4
*66 Defendant is wrong. 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. The reason that the court must find probable cause for the impoundment, a requirement that provides the foundation for some of defendant’s arguments, is to ensure that the impoundment is legal under ORS 167.345. It has nothing to do with the defendant’s guilt or innocence of the charges and, as defendant’s acquittal in this case shows, does not affect the outcome of the trial. Defendant challenges neither the trial court’s findings that there was probable cause to impound the animals nor its finding that he had the ability to post a bond. Thus, he provides no basis for holding that the statute did not apply to him.
This brings me to the dissent, which both misunderstands the statute and turns on an argument that defendant did not make at trial or on appeal. The dissent focuses on the apparent disproportion between the $2,700 that the court found to be the cost of caring for the animals up to the time of the order of forfeiture and defendant’s assertion that they were worth more than $12,000 at that time. It does not point to any portion of defendant’s brief that refers to this point, even tangentially. As I described, defendant’s arguments on appeal are based on his acquittal, which, he says, should undo the forfeiture in its entirety. The theme of his excessive fines argument is, quite properly, that, because of his acquittal, any fine would be excessive. 5 If he is correct, there is no need for an extensive excessive fines analysis. If he is incorrect, an excessive fines analysis is irrelevant. The dissent, nevertheless, engages in a misguided excessive fines analysis without explaining why ORS 167.347 imposes any kind of fine or how the issue can arise after an acquittal. 6
*67 The dissent discusses a number of United States Supreme Court cases that consider whether a civil penalty or forfeiture is an excessive fine. As the dissent’s quotations from those cases show, in each case the civil penalty or forfeiture was directly tied to the defendant’s violation of a law. Thus, in Austin v. United States, 509 US 602 , 113 S Ct 2801 , 125 L Ed 2d 488 (1993), the defendant brought two grams of cocaine from the mobile home that the government sought to forfeit, to the body shop that the government sought to forfeit, in order to consummate a sale of the cocaine. As the dissent quotes Austin , the “ ‘question is not * * * whether forfeiture * * * is civil or criminal, but rather whether it is punishment.’ ” 181 Or App at 79 (Edmonds, J., dissenting) (quoting Austin, 509 US at 610 ). In the portion oí Hudson v. United States, 522 US 93 , 118 S Ct 488 , 139 L Ed 2d 450 (1997), that the dissent quotes, the Court considered whether “a particular punishment is criminal or civil [.]” 181 Or App at 79 (Edmonds, J., dissenting) (quotingHudson, 522 US at 99). ORS 167.347, however, does not impose punishment of any sort, either civil or criminal. It simply provides a mechanism for enforcing the owner’s obligation to care for the animals. Thus the issue in the federal cases, whether a penalty that is nominally civil is in fact criminal, cannot arise under this statute because there is no penalty.
The dissent’s attempt to avoid this conclusion involves a serious misunderstanding of the relevant statutes. The dissent begins with the fact that the agency must show that there was probable cause to impound the animals. The purpose of that requirement is simply to prove that the agency has the animals legally. That determination has *68 nothing to do with the merits of the criminal case. The dissent does not even refer to the foundation of the Supreme Court’s ruling that we have jurisdiction over this appeal— that the forfeiture proceeding is separate from the criminal proceeding, even though they may have the same case number. This “kind of forfeiture proceeding does not arise out of the criminal action, resolve any controversy in the criminal action, or otherwise affect or depend on the substance of the criminal action.” Branstetter, 332 Or at 398-99 . If it were not for that conclusion, the court would have affirmed our previous decision dismissing the appeal.
The dissent then confuses ORS 167.347 with ORS 167.350, which provides for forfeiture of the animals as part of a sentence on conviction. According to the dissent, ORS 167.350 “provides that the court may impose, as part of the sentence, an order to forfeit the animals so that the costs of care can be repaid in the event that the defendant is convicted.” 181 Or App at 80 (Edmonds, J., dissenting) (emphasis added). The statute provides no foundation for the emphasized portion of the dissent’s statement. Rather, ORS 167.350 permits a court, as part of sentencing a person convicted of animal abuse, to order the animals forfeited and also to order the defendant to repay the agency’s reasonable costs in caring for the animals before judgment. ORS 167.350(1), (3). That statute is unquestionably punitive, and it requires a conviction before it can become effective. Under it, there is no necessary relationship between the forfeiture and the cost of caring for the animals; the defendant may both suffer the forfeiture and be required to pay for their care. There is no provision for the defendant to post a bond to avoid the forfeiture; the purpose of the forfeiture is to remove the animals from what the conviction has proved to be an abusive situation, not to provide for their possible return to the defendant. None of those things applies to a pretrial forfeiture under ORS 167.347.
ORS 167.347 is simply not the kind of civil sanction that'the United States Supreme Court has considered when discussing whether a particular forfeiture or penalty is potentially subject to the excessive fines clause. Again, the dissent quotes a statement that makes that clear. In United States v. Ursery, 518 US 267 , 116 S Ct 2135 , 135 L Ed 2d 549 *69 (1996), the Court stated that civil forfeiture statutes are “designed primarily to confiscate property that has been used in violation of the law, and to require disgorgement of the fruits of illegal conduct.” Id. at 284 , quoted at 181 Or App 81 (Edmonds, J., dissenting). A forfeiture statute that is designed to achieve those purposes is clearly subject to the analysis that the dissent describes. The problem is that ORS 167.347 is not that kind of statute. Under it, forfeiture does not depend on showing that the animals were used in violation of the law, and there are no fruits of illegal conduct for defendant to disgorge. Under the statute, the possibility of forfeiture is a way of protecting the agency’s (and possibly the government’s) financial interests, not a method of imposing any penalty or sanction, civil or criminal, on the defendant. 7 The dissent’s attempt to cut the statute here and stretch it there so that it will fit into the Procrustean bed that the dissent wants to construct out of federal cases that deal with a very different scheme fails. That attempt also has nothing to do with anything that defendant argued on appeal.
It may be that the disparity between the alleged value of the animals and the amount of the bond could give rise to a constitutional claim of some sort. Neither defendant nor the dissent has identified one, however. Thus, even if we were to reach the issues that the dissent discusses, our decision affirming the forfeiture would remain correct.
All statutory citations are to the versions that were in effect at the time of the events in issue. The 2001 Legislature subsequently amended some of them. Or Laws 2001, ch 926, §§ 12,13,14a.
Although the agency files the motion in the criminal case, the forfeiture proceeding is entirely separate from the criminal proceeding.
“There is no necessary connection between the content of a forfeiture proceeding under ORS 167.347 and the criminal action in which, by statute, the forfeiture petition may be filed. Although a forfeiture proceeding under ORS 167.347 formally depends on a criminal action for its existence in that it can go forward only if a criminal action of a specified sort is pending, that kind of forfeiture proceeding does not arise out of the criminal action, resolve any controversy in the criminal action, or otherwise affect or depend on the substance of the criminal action.” State v. Branstetter, 332 Or 389, 398-99 , 29 P3d 1121 (2001).
The trial court expressly found that defendant was able to provide the bond that it required. Thus, the statutory procedures gave him the ability to avoid forfeiture of the animals if he had chosen to do so.
In its opinion, the Supreme Court expressly agreed with the second of the quoted statements. Branstetter, 332 Or at 396 .
At the forfeiture hearing in the trial court, which occurred before his acquittal, defendant may have suggested that the value of the horses was disproportionate to the potential punishment, in part because there was no provision for undoing the forfeiture in the case of an acquittal. He does not make that argument on appeal, and one would not expect him to do so. Discussing whether the punishment that a person received is proportionate to a crime of which the person was acquitted is meaningless.
The dissent relies on federal cases to interpret the excessive fines provision of Article I, section 16, of the Oregon Constitution, asserting without analysis that the scope of the state and federal clauses is identical. Because I believe that both *67 excessive fines clauses are irrelevant, I will limit myself to pointing out that that approach is inconsistent with the way that we normally analyze the state constitution. See, e.g., State v. Caraher, 293 Or 741 , 653 P2d 942 (1982) (interpreting Article I, section 9, of the Oregon Constitution independently of the United States Supreme Court’s interpretation of the almost identical language of the Fourth Amendment). Unlike the dissent, 181 Or App at 78 n 5 (Edmonds, J., dissenting) the Oregon Supreme Court has never relied on an Indiana decision to determine the relationship between an Oregon constitutional provision and the comparable portion of the United States Constitution. Doing so is both inconsistent with Oregon law and inappropriate, particularly for Indiana cases decided after 1859. See State v. Soriano, 68 Or App 642 , 649 n 8, 684 P2d 1220 , opinion adopted 298 Or 392 , 693 P2d 26 (1984).
The legislature may also have hoped to allow the agency to obtain title to abused pets that had little or no monetary value, so that the agency could find new owners for them rather than having to care for them during extended criminal proceedings with no hope of repayment from the owner. That purpose, also, has nothing to do with punishing a wrongdoer and everything with requiring the owner to fulfill the obligation of taking proper care of the animals at the risk of losing them by failing to do so.