State v. Branstetter

EDMONDS, J., dissenting.

Pursuant to ORAP 5.45, the majority holds that defendant has not preserved the issue in the trial court that he raises before this court under the Eighth Amendment to the United States Constitution, and Article I, section 16, of the Oregon Constitution. Consequently, it does not consider defendant’s excessive fines challenge on its merits. I disagree because the record demonstrates that defendant adequately preserved the issue below that he raises on appeal, and I *70 would reverse the trial court’s forfeiture order because defendant has been denied his property interests in the value of his animals, contrary to both the Oregon and the United States constitutions. 1

The requirement of preservation under ORAP 5.45 exists because this court functions as an error-correcting court. As the Oregon Supreme Court said in State v. Linthwaite, 295 Or 162, 175 , 665 P2d 863 (1983):

“Generally speaking, [the Court of Appeals] is not required to consider claims of error not presented to the trial court. The rationale for that proposition is that unless the matter has been properly brought to the trial court’s attention in making its ruling, there is no error to correct.”

As we noted in J. Arlie Bryant, Inc. v. Columbia River Gorge Comm., 132 Or App 565, 568 , 889 P2d 383 , rev den 321 Or 47 (1995), adherence to preservation requirements is important because

“the requirement that an issue be presented to the lower tribunal in order for it to be raised on appeal serves to prevent error. If the first tribunal is given the opportunity to make a ruling, its ruling may well be correct. Relatedly, it would be a disservice to the economy of the process to require the lower tribunal to conduct further proceedings in order to rectify an error that it was never given the initial opportunity to avoid.

“The second reason is that requiring a party to present its issues at each adjudicative level is essential to a fair process for the other parties and participants. Generally, the opportunity to respond at the appellate level does not cure the denial of that opportunity in trial court and agency proceedings, where all of the factual and much of the legal development of cases must occur.”

Whenever we decline to review a trial court’s ruling on preservation grounds, it is important to keep in mind the purposes underlying the rule of preservation.

In regard to the issue of preservation, this case is not unlike State v. Hitz, 307 Or 183 , 766 P2d 373 (1988). In Hitz , *71 the defendant appealed her conviction for the unlawful misapplication of entrusted property, claiming that the trial court should have entered a judgment of acquittal for lack of evidence showing that the alleged misapplication was unlawful. This court affirmed the conviction on the ground that defendant did not preserve the issue in the trial court that she raised on appeal. In the trial court, the defendant argued that there was no evidence that the defendant “had knowledge that any misapplication of funds, if it has at all been shown that this was a misapplication, was done unlawfully.” Hitz, 307 Or at 187 . We held that the defendant had abandoned the argument on appeal that there was no evidence of an unlawful misapplication, characterizing her argument on appeal as an assertion that her conduct violated no statute or government regulation. State v. Hitz, 92 Or App 136,139 , 757 P2d 448 (1988). On review, the Supreme Court reversed. It held that the defendant had adequately preserved the issue in the trial court of whether she had unlawfully misapplied the property in question. It explained,

“We have previously drawn attention to the distinctions between raising an issue at trial, identifying a source for a claimed position, and making a particular argument. See Cooper v. Eugene School District No. 4J, 301 Or 358 , 369 n 12, 723 P2d 298 (1986). The first ordinarily is essential, the second less so, the third least. Thus, when a potential constitutional violation is involved, the parties omission of a dispositive source or argument of ordinary law cannot compel a court to a needless constitutional decision. See State v. Kennedy, 295 Or 260, 267 , 666 P2d 1316 (1983). Of course, it is important to efficient judicial procedures that the positions of the parties be clearly presented to the initial tribunal and on appeal. See, e.g., Shields v. Campbell, 277 Or 71, 77-78 , 559 P2d 1275 (1977). But an equally important justification for requiring preservation of claims of error, consistent with the directive to administer justice ‘completely,’ Or Const, Art I, § 10, is fairness to the adversary parties, and court can avoid taking parties by surprise by inviting memoranda on inadequately briefed questions. State v. Kennedy, supra, 295 Or at 268. Efficient procedures are instruments for, not obstacles to, deciding the merits, particularly when the alternative is a criminal conviction that lacks a basis in law or in fact. The state was not ambushed or misled or denied an opportunity to meet defendant’s *72 argument in this case.” Hitz, 307 Or at 188-89 (emphasis in original; footnote omitted).

The court concluded that although the defendant had argued to the trial court that the state had not proved her knowledge of any unlawful misapplication of funds, nevertheless, the issue (whether the state had proved a misapplication that violated a statute or law) was preserved. The fact that the defendant made a different argument on appeal regarding that issue than she made to the trial court did not defeat her appeal.

Consequently, the correctness of the majority’s decision declining to review defendant’s appeal turns on whether defendant raised the issue of an excessive fine under the Eighth Amendment and Article I, section 16, at trial. Under Hitz, defendant’s failure to make a particular argument in the trial court does not operate to defeat his appeal so long as the issue was raised. As the Hitz court pointed out, it is least essential for a defendant to have made a particular argument to the trial court. Ultimately, the question is whether the trial court and the state were ambushed, misled, or denied an opportunity to meet the issue raised on appeal. 2 On appeal, defendant argues:

“The forfeitures were ancillary to the criminal charges of animal abuse. In order to order the forfeitures, the trial court was required to find — at a probable cause standard— that defendant was guilty of animal abuse in violation of the criminal statutes (ORS 167.310 to ORS 167.3400. The statutory scheme provided for no reversal of the forfeiture where — as here — the charged individual was acquitted. Thus, the forfeitures - in light of the acquittals - had the effect of punishing the defendant in disregard of all of his United States Constitutional trial rights as an accused in a criminal proceeding and in disregard of all of his trial rights under the Oregon Constitution including — but not limited to — his constitutional right to due process of law, right to a jury trial, right to require proof beyond a reasonable doubt, *73 right against double jeopardy and right against excessive fines.” (Emphasis added.)

In the trial court, defendant first raised the excessive fines issue in response to the September 17, 1997, petition by the humane society seeking forfeiture of defendant’s animals. That petition alleged that all of defendant’s animals should be forfeited to compensate the humane society for the care it had furnished. Defendant filed a motion through his court-appointed attorney to dismiss the petition. He argued, in part, that the forfeiture proceeding violated his constitutional rights because it “requires the payment of costs which are disproportional [to] the [sic] the crime with which defendant is charged.” In an accompanying memorandum in support of his motion, defendant’s counsel wrote, “[n]ow, [the petitioner] seeks not only forfeiture of the animals, valued at over $12,000, but all fees associated with the cost of the keeping of those animals for the last 12 months, alleged to be in excess of $5,000.” Significantly, counsel cited in his memorandum to the Eighth Amendment to the United States Constitution and observed, “Although the Eighth Amendment does not apply in civil actions between private parties, this forfeiture proceeding is brought in the criminal action’ and so the proscription against excessive bail and forfeiture applies.” (Emphasis added.)

On October 1,1997, the trial court held a hearing on the petition for forfeiture. Defendant and his court-appointed attorney were present, as were a deputy district attorney and the attorney for the humane society. The court took extensive testimony from witnesses and reviewed photographs of the animals. The state presented evidence that established the value of the care provided to the animals in the amount of $2,700. Defendant testified about his animals’ value:

“Well, in the spring, I suppose, when they’re in more demand, they’re probably worth somewhere close to twelve, fifteen thousand dollars but, in the fall, then the demand is decreasing, then people start selling their horses and they end up, half of them, go through the slaughter house and they’re probably down around eight hundred dollars or so, around there.”

*74 There was no evidence that contradicted defendant’s evaluation. The state asked the trial court to order forfeiture of all the animals based on a record that demonstrated unequivocally that their value significantly exceeded the proven costs of their care. Near the end of the hearing, the trial court said to the parties:

“One of the issues you didn’t address was, assuming I find probable cause, and you’re going to write me a memo on the other issue, was there any evidence [of the costs of the care provided], other than the $2700? Because it says, If the court finds probable cause, the court shall order immediate forfeiture unless the defendant, within 72 hours, posts a security bond in an amount determined to be sufficient. It says, determined by the court. So, the only amount I have right now is $2700.” 3

Based on the record before it, the trial court found that probable cause existed to believe that the seized animals had been neglected in violation of the criminal statute under which defendant was charged. In a written order issued five days later, the court ruled further,

“Once this court makes its finding of probable cause under the statute it is to set a bond or security amount to be sufficient to * * * ‘repay all reasonable costs incurred, and *75 anticipated to be incurred.’ In this case, the only evidence before the court is for costs expended to date of two thousand seven hundred dollars ($2700). Therefore, pursuant to statute the defendant is allowed seventy two (72) hours from the date of this order to either post a bond in this amount or the animals shall be forfeited.” (Emphasis added; citation omitted.)

On October 15, 1997, the court signed a further order authorizing forfeiture of all of the animals if the bond was not paid. So far as the record indicates, no petition was ever filed alleging that the humane society’s costs were in excess of $2,700, and no hearing was ever held on the amount of the forfeiture despite defendant’s testimony regarding the value of the animals and the trial court’s concern about the lack of evidence.

In a motion dated October 16, defendant moved for reconsideration of the forfeiture order. Among other things, defendant argued in the motion that he had not been afforded an opportunity to be heard on the waiver of the bond requirement, because the court had already ordered the forfeiture, and that he was financially unable to post a bond in the amount of $2,700. He also argued that the statute permitted a waiver of the bond requirement “for good cause,” which should be allowed because of his indigency, that he had been denied due process by being denied the opportunity to argue for a waiver of the bond, and that, by ordering a bond without considering defendant’s financial condition, the court was “infringing upon excessive bail prohibitions under the state and federal constitutions.” (Emphasis added.) Defendant also asked the court to stay its forfeiture order until the criminal proceeding was completed, so that he could appeal.

The court held a hearing on defendant’s motion on October 17, 1997. The court heard a statement from the defendant and the arguments of counsel. It then denied defendant’s motion to waive the bond requirement. It found that defendant had assets that could be converted into cash to pay the bond and that the $2,700 was, in its opinion, a fair amount to impose as a bond. The court acknowledged again, at least implicitly, that it was aware of the problem of the disparity between the value of the animals and the costs of care that had actually been proved by the state. It said,

*76 “The district attorney is candid in that his inexperience led to, and I don’t mean to pick on him, but everyone has a first case in some area at some point in their life, and certainly I’ve had my share of first cases, but had he offered evidence of what it really cost, other than the one horse that came up, bottom line, it would be way more money. It doesn’t take a rocket scientist to figure that out $2700 is pretty cheap in this case with all the horses.”

It ordered that “$2,700 be posted within 72 hours.” The court explained that, despite defendant’s indigency for purposes of receiving court-appointed counsel, it believed that the testimony established that defendant had access to two sources of cash that enabled him to post a bond: (1) by selling his alfalfa or (2) from a purported transaction with a friend from Washington. When defendant failed to post a bond by October 22, 1997, the court ordered all of the animals to be forfeited to the humane society. On that same day, the jury returned a “not guilt/’ verdict on all counts of the criminal information. Defendant now appeals from the forfeiture order.

What the foregoing record demonstrates is that, throughout the proceedings in the circuit court, defendant raised Eighth Amendment and Article I, section 16, issues concerning excessive fines. Defendant referred to excessive fines and the Eighth Amendment on two different occasions. He also told the trial court that the forfeiture was disproportionate. The court itself twice pointed to the costs of care that had been proved. On those facts, it is difficult to perceive how the court and the state were ambushed, misled, or denied an opportunity to meet the issue of an excessive fine. Instead, the record shows that the trial court was aware of the state’s failure to prove costs equivalent to the value of the animals and was aware or should have been aware of the problem of imposing an excessive fine, in light of defendant’s citation to the Eighth Amendment. The trial court even admonished the state’s attorney regarding his failure to offer additional evidence regarding the cost of care for the animals.

An issue raised to a trial court does not become unpreserved simply because the court does not address it. While the majority may be correct that defendant did not expressly raise the argument that the order forfeiting all of *77 his animals was disproportionate to the state’s proven costs, he repeatedly raised the excessive fines issue, thus enabling the trial court and the parties to address the issue. In essence, the majority holds that the excessive fines issue was not raised below because the trial court’s concern was not articulated in terms of “proportionality.” However, the lack of proportionality, as will be demonstrated later in this opinion, is at the heart of any excessive fines problem. If anything, the facts showing that the trial court recognized or should have recognized the excessive fines issue are stronger than the facts in Hitz regarding the failure to prove an element of the crime charged. In Hitz, the court held that the rules of preservation should not be obstacles to deciding a case on the merits when the court and the opposing party have not been denied an opportunity to confront the position asserted in the trial court. That should be the result in this case, too. Consequently, the majority errs when it holds that defendant did not preserve the excessive fines issue in the trial court because he does not make the same argument on appeal that he made in that court.

On the merits of the excessive fines challenge, the trial court expressly found that the only evidence of the reasonable value of care furnished by the humane society was $2,700. Notwithstanding that amount, the trial court ordered a forfeiture of all of the animals, valued in excess of $12,000. In my analysis that follows, I concern myself only with the value of the forfeited animals to the extent that it exceeds $2,700. In my view, the purpose of the statute under which defendant’s animals were forfeited is to compensate for the reasonable value of services provided by the humane society. 4 Thus, I inquire whether the lack of proportionality *78 between the state’s proven harm and the penalty suffered by defendant through the loss of all his animals implicates defendant’s constitutional rights under Article I, section 16, of the Oregon Constitution. The question is whether, regardless of defendant’s acquittal, was he “fined” because the order imposing costs on him exceeded the state’s cost for care provided to defendant’s animals? 5

The portion of Article I, section 16, relevant to this case provides that “[e]xcessive bail shall not be required, nor excessive fines imposed.” The purpose of Article I, section 16, is self-evident. Those who face criminal prosecution should not be punished beyond what is just. See, e.g., State u. Ross, 55 Or 450, 479-80 , 106 P 1022 (1910), appeal dismissed 227 US 150 (1913) (holding a fine excessive because it was greater than the defendant could pay in a lifetime). The “excessive fines” language in Article I, section 16, is identical to the language in the Eighth Amendment to the United *79 States Constitution, and there is no reason to believe that the drafters of the Oregon Constitution had any different understanding when they prohibited excessive fines in section 16 than the understanding of the drafters of the Eighth Amendment. 6 See Carey, The Oregon Constitution 28 (1926). Because the analysis under the two constitutional provisions appears to be identical, I would decide this case, if possible, under Article I, section 16, State v. Kennedy, 295 Or 260,262 , 666 P2d 1316 (1983); see also City of Portland v. 1985Porsche 944, 143 Or App 492 ,494 n 3, 924 P2d 334 (1996), rev den 325 Or 80 (1997), but in accordance with United States Supreme Court precedent.

The Eighth Amendment’s excessive fines clause is not limited in applicability to criminal cases, although it clearly applies to excessive criminal penalties. Austin v. United States, 509 US 602, 608-09 , 113 S Ct 2801 , 125 L Ed 2d 488 (1993) (“Some provisions of the Bill of Rights are expressly limited to criminal cases. * * * The text of the Eighth Amendment includes no similar limitation. * * * Nor does the history of the Eighth Amendment require such a limitation.”). See also Umatilla County v. $18,005 in U.S. Currency, 142 Or App 513 , 921 P2d 426 , rev den 324 Or 395 (1996). Thus, as the Austin court stated, “The question is not * * * whether forfeiture * * * is civil or criminal, but rather whether it is punishment.” Austin, 509 US at 610 .

Moreover, the “civil” or “criminal” nomenclature used in a statute is not dispositive as to whether a penalty provided by statute constitutes punishment, although it is the beginning point to discern legislative intent. Hudson v. U.S., 522 US 93, 99, 118 S Ct 488 , 139 L Ed 2d 450 (1997). The Hudson Court explained:

“Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. Helvering [v. Mitchell, 303 US 391, 399 , 58 S Ct 630 , 82 L Ed 917 (1938),] supra at 399. A court must first ask whether the *80 legislature, ‘in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.’ [U.S. v.] Ward, 448 US [242, 100 S Ct 2636 , 65 L Ed 2d 742 (1980)] at 248. Even in those cases whether the legislature “has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect,’ id., at 248-249, as to ‘transfer [m] what was clearly intended as a civil remedy into a criminal penalty[.]’ ” Hudson, 522 US at 99 (some citations omitted).

Accordingly, the analysis begins with the consideration of the purpose and effect of the statutory scheme under which the trial court issued its order. ORS 167.347 (1999) provides that, when a criminal action charges the violation of ORS 167.310 to ORS 167.340, the custodian of seized animals may file a petition in the criminal action requesting that the court order forfeiture before the final disposition of the criminal charge. Defendant was charged with the violation of ORS 167.330, thus triggering the state’s right to recover under ORS 167.347 (1999). Upon the filing of such a petition, the court must hold a hearing, as occurred in this case. At the hearing, the petitioner has the burden of establishing probable cause, a burden of proof required in other kinds of criminal proceedings, to believe that one of the crimes enumerated in the statute has been committed. If the court finds that the petitioner has met that standard, forfeiture is authorized unless the defendant posts a bond or security deposit sufficient to repay all reasonable costs incurred and anticipated to be incurred in the care of the seized animals “from the date of initial impoundment to the date of trial.” ORS 167.347(3) (1999). In addition, ORS 167.350 (1999) 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. The statutory scheme contains no mechanism for a refund of the excess value, if any, after a conviction or an acquittal. See ORS 167.347(5) (1999).

The first noteworthy features of ORS 167.347 (1999) under an Article I, section 16, inquiry are that the forfeiture proceeding under the statute is triggered by a criminal prosecution and requires a showing of probable cause before a forfeiture can be ordered. However, it does not appear from the *81 text or context of the statute that the legislature had a punitive purpose in enacting the statute. Rather, the statute has more of a “civil” quality in that it provides compensation for services rendered. If the statute is applied in such a manner that the value of the property forfeited is proportional to the cost incurred by the care provider, no “punishment” occurs. However, a statute can be punitive either because it has that purpose or because it has that effect. Hudson, 522 US at 99 . A statute is punitive in effect, if, despite a remedial purpose, it authorizes a remedy that exceeds what is required to achieve the remedial purpose.

Civil statutes, through their effect, can implicate the “excessive fines” clauses in two ways. They can fall into a category of statutes that provide for “civil forfeiture,” or they can impose “civil penalties.” United States v. Ursery, 518 US 267 , 116 S Ct 2135 , 135 L Ed 2d 549 (1996). 7 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.” Ursery, 518 US at 284 . An example is a statute authorizing the forfeiture of a vehicle used in illegal activity. See, e.g., ORS 133.460 (allowing forfeiture of conveyances used unlawfully to conceal or transport stolen property); Bennis v. Michigan, 516 US 442 , 116 S Ct 994 , 134 L Ed 2d 68 (1996). Civil forfeiture statutes are not subject to the same kind of proportionality analysis that civil penalties are, because,

“though it may be possible to quantify the value of the property forfeited, it is virtually impossible to quantify, even *82 approximately, the nonpunitive purposes served by a particular civil forfeiture. Hence, it is practically difficult to determine whether a particular forfeiture bears no rational relationship to the nonpunitive purposes of that forfeiture.” Ursery, 518 US at 284 .

On the other hand, statutes providing for civil penalties are “designed as a rough form of ‘liquidated damages’ for the harm suffered by the Government as a result of a defendant’s conduct.” Ursery, 518 US at 283-84 . An example of such a statute is one that provides for a fixed penalty of $2,000 for every instance of defrauding the government by purchasing cars at a discount that were intended to be purchased only by veterans. Rex Trailer Co. v. United States, 350 US 148,154 , 76 S Ct 219 , 100 L Ed 149 (1956). See also ORS 809.715 (allowing impoundment of an uninsured vehicle and requiring payment of the costs of towing and storage before release of the vehicle). Civil penalties are subject to “proportionality analysis,” because their nonpunitive purposes can be defined and quantified, and then compared to the actual penalty imposed. Ursery, 518 US at 283 ; see also $18,005 in U.S. Currency, 142 Or App at 516-17 .

As to the test for proportionality of a civil penalty, the Ursery Court said:

“Whether a ‘fixed-penalty-provision’ that seeks to compensate the Government for harm it has suffered is ‘so extreme’ and ‘so divorced’ from the penalty’s nonpunitive purpose of compensating the Government as to be a punishment may be determined by balancing the Government’s harm against the size of the penalty.” 518 US at 284 .

I would adopt that test for purposes of Article I, section 16. 8 The forfeiture of the animals is not the type of in rem civil forfeiture of the implements or proceeds of a crime that the court described as “impossible to qualify” in Ursery, 518 US at 284 . Rather, it is more akin to a civil penalty statute, “designed as a rough form of liquidated damages.” Id. at 283-84 . 9 1 would *83 hold that ORS 167.347 (1999) cannot constitutionally be applied to authorize a forfeiture in an amount that is disproportionate to the harm suffered by the state or its agents. The amount of the forfeiture must be commensurate with the statute’s purpose of reimbursing the care provider for the established costs of the animals’ care.

The trial court’s order of forfeiture resulted in the humane society obtaining, through the power of the state, as much as $15,000 in value without establishing any more than $2,700 in costs. Without further evidence before it, the trial court could not constitutionally impose a forfeiture that benefitted the government in that amount under Article I, section 16, when the cost of care amounted to $2,700. To the extent that the forfeited amount exceeded the amount required to compensate the state for its expenditures on behalf of the animals, it was an excessive fine. Accordingly, this court should be required to vacate the order of forfeiture and remand to the trial court.

One additional concern presented by the facts of this case is that, had defendant paid the $2,700 bond, he could have avoided the forfeiture of all of his animals. The trial court expressly found that he had the financial ability to post the bond, and there is evidence to support that finding. The question is whether defendant’s failure to post a bond operates to defeat his claim that the forfeiture was excessive. I would conclude that it does not for the reasons that follow. When faced with the court’s order to post a bond or suffer the consequences of a forfeiture, defendant was required to make an election. He could convert his other assets to cash and post the bond, or he could permit the value of the impounded animals to be applied against the $2,700 obligation. By failing to post the bond, defendant waived his property interests in his animals to the extent of his $2,700 obligation. However, he *84 cannot be deemed to have waived his ownership interests beyond that amount. To the contrary, he told the trial court in both of his motions that the court’s order forfeiting his interest in the impounded animals violated his Article I, section 16, rights protecting him against the imposition of an excessive penalty.

Pursuant to the above analysis, the order forfeiting all of defendant’s animals should be vacated because it violates Article I, section 16, of the Oregon Constitution. This case should be remanded to the trial court to hold the hearing that it apparently intended to hold, but never did before it entered the order on appeal. The trial court should also on remand consider an appropriate remedy commensurate with defendant’s constitutional rights under Article I, section 16, and in light of the fact that the value of the forfeited animals may be disproportionate to the trial court’s finding of the cost of care provided to the animals from the date of initial impoundment to the date of trial.

For the above reasons, I dissent.

I agree with the majority’s disposition of defendant’s challenges based on due process and remedies clause arguments.

Webster’s Third New Infl Dictionary defines an “issue” as “a single material point of law or fact depending in a suit that is affirmed by one side and denied by the other and that is presented for determination at the conclusion of the pleadings.” Webster’s Third New Infl Dictionary, 1201 (unabridged ed 1993). In contrast, an “argument” is “an effort to establish belief by course of reasoning.” Black’s Law Dictionary, 137 (4th ed 1968).

It is inferable from the transcript that the state believed that the court had to resolve the threshold issue of probable cause before it decided the amount of the forfeiture. The deputy district attorney, in response to the above statements, told the court:

“[The evidence of the humane society’s costs] isn’t an element for this hearing. This is something that we’ve established outside of this hearing.”

Counsel for the humane society then stated:

“I think that it’s an issue that you have — all you have to do is get past the probable cause at this point and then it becomes a matter of just establishing the amount of the bond, which I think is a different issue than the probable cause issue, as to whether or not there should be a forfeiture. And then, if we get to that point, if it gets to that point, then I think it becomes an issue of what amount it costs, how — what should be the amount of bond that should be established.”

The court asked, “Do you have a suggestion for what I would do, assuming I went to that point?” Counsel responded,

“I think it could be done either a couple of ways. I think a petition could be filed, indicating this is what costs have been incurred and if that resulted in a hearing, then it results in a hearing. * * * They don’t believe that’s a part of the proof that’s a part of this hearing. I think you’ve got to get past the initial point first.”

ORS 167.347 (1999) provides:

“(1) If any animal is impounded pursuant to ORS 167.345(2) and is being held by a county animal shelter or other animal care agency pending outcome of criminal action charging a violation of ORS 167.310 to 167.340, prior to final disposition of the criminal charge, the county or other animal care agency may file a petition in the criminal action requesting that the court issue an order forfeiting the animal to the county or other animal care agency prior to final disposition of the criminal charge. The petitioner shall serve a true copy of the petition upon the defendant and the district attorney.

“(2) Upon receipt of a petition pursuant to subsection (1) of this section, the court shall set a hearing on the petition. The hearing shall be conducted within 14 days of the filing of the petition, or as soon as practicable.

*78 “(3)(a) At a hearing conducted pursuant to subsection (2) of this section, the petitioner shall have the burden of establishing probable cause to believe that the animal was subjected to abuse, neglect or abandonment in violation of ORS 167.310 to 167.340. If the court finds that probable cause exists, the court shall order immediate forfeiture of the animal to the petitioner, unless the defendant, within 72 hours of the hearing, posts a security deposit or bond with the court clerk in an amount determined by the court to be sufficient to repay all reasonable costs incurred, and anticipated to be incurred, by the petitioner in caring for the animal from the date of initial impoundment to the date of trial.

“(b) Notwithstanding paragraph (a) of this subsection, a court may waive for good cause shown the requirement that the defendant post a security deposit or bond.

“(4) If a security deposit or bond has been posted in accordance with subsection (3) of this section, and the trial in the action is continued at a later date, any order of continuance shall require the defendant to post an additional security deposit or bond in an amount determined by the court that shall be sufficient to repay all additional reasonable costs anticipated to be incurred by the petitioner in caring for the animal until the new date of trial.

“(5) If a security deposit or bond has been posted in accordance with subsection (4) of this section, the petitioner may draw from that security deposit or bond the actual reasonable costs incurred by the petitioner in caring for the impounded animal from the date of initial impoundment to the date of final disposition of the animal in the criminal action.

“(6) The provisions of this section are in addition to, and not in lieu of, the provisions of ORS 167.350.”

This opinion should not be understood to assert that ORS 167.347 is unconstitutional on its face. That statute can be constitutionally applied, but that did not occur here.

Oregon’s Article I, section 16, was adopted from and is identical to the Indiana excessive fines provision. The Indiana Supreme Court, in recognition of the similarities between Article I, section 16, of the Indiana Constitution, and the Eighth Amendment, has concluded that Indiana’s section 16 requires no more and no less than the Eighth Amendment. Norris v. State, 271 Ind 568, 394 NE 2d 144 (1979).

In Ursery , the Supreme Court explained,

“The narrow focus of [United States v.] Halper[, 490 US 435 , 109 S Ct 1892 , 104 L Ed 2d 487 (1989),] followed from the distinction that we have drawn historically between civil forfeiture and civil penalties. Since at least Various Items [of Personal Property v. United States, 282 US 577 , 51 S Ct 282 , 75 L Ed 558 (1931)], we have distinguished civil penalties such as fines from civil forfeiture proceedings that are in rem.

‡ ‡ jj: sj:

“While a ‘civil action to recover penalties, is punitive in character,’ and much like a criminal prosecution in that ‘it is the wrongdoer in person who is proceeded against. . . and punished,’ in an in rem forfeiture proceeding, “it is the property which is proceeded against, and by resort to a legal fiction, held guilty and condemned.” Ursery, 518 US at 283 .

This test for determining whether a sanction is “punishment” is used in both double jeopardy cases (where the inquiry is whether the sanction constitutes a second punishment), and in excessive fines cases. See, e.g., Ursery, 518 US at 284 (double jeopardy); Alexander v. United States, 509 US 544 , 113 S Ct 2766 , 125 L Ed 2d 441 (1993) (excessive fines).

Judge Armstrong, in his concurring opinion, asserts that “the problem [with my analysis] is that ORS 167.347 (1999) is not [a civil forfeiture] statute.” 181 Or *83 App at 68-69 (Armstrong, J., concurring). That is exactly my point — as applied here, it is a civil penalty statute. See Ursery, 518 US at 283-84 (contrasting the purposes and methods of evaluating civil penalty statutes and civil forfeiture statutes). At the risk of redundancy, the statute is not “designed primarily to confiscate property that has been used in violation of the law, and to require disgorgement of the fruits of illegal conduct.” Ursery, 518 US at 284 . Instead, it is “designed as a rough form of ‘liquidated damages’ for the harm suffered by” the humane society. Ursery, 518 US at 283-84 . As such, the statute is subject to proportionality analysis in a way that civil forfeiture statutes are not.