A100029, Opinion — State v. Branstetter

286
Argued and submitted April 20, 1999, appeal dismissed March 22, 2000
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; CAA100029)
1 P3d451

Cite as 166 Or App 286 (2000) 	287
CJS, Criminal Law§ 1669.
Appeal from Circuit Court, Umatilla County.
Rudy M. Murgo, Judge.
Jay Edwards 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.
Appeal dismissed.
Edmonds, P. J., dissenting.

288 	State v. Branstetter
ARMSTRONG, J.
Defendant appeals from a trial court order forfeiting
his interest in 11 horses and one 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 exces-
sive 	fine 	under 	Article 	I, 	section 	16, 	of 	the 	Oregon
Constitution.
After investigating allegations that defendant was
not feeding or caring for the animals, a sheriffs 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 peti-
tion in the criminal proceeding seeking forfeiture of the ani-
mals pursuant to ORS 167.347. 2 The state moved to amend
' On appeal, defendant challenges neither the seizure of the animals nor their
placement with Pioneer.
"ORS 167.347 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.
"(3)(a) At a hearing conducted pursuant to subsection 12J 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. lfthe 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 r·easonable 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.

Cite as 166 Or App 286 (2000) 	289
Pioneer's petition so that the state would become a copeti-
tioner. 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 sub-
sequently 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
----- ·············--·------
"(b) Notwithstanding paragraph <aJ 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 sub-
section (3J 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 J If a security deposit or bond has been posted in accordance with sub-
section (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.
"(6J The provisions of this section are in addition to, and not in lieu of, the
provisions of ORS 167.350." <Emphasis added.) 	·

State v. Branstetter
an acquittal. We are not aware of any other provision of ORS
138.010 to ORS 138.310 that would allow an acquitted defen-
dant to appeal.
The dissent argues, however, that this case is a spe-
cial 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 cre-
ate a special statutory proceeding. The problem with the dis-
sent'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 estab-
lishes 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 P2d 960 (1982). The court
emphasized that the distinguishing feature of a special stat-
utory proceeding is that it be separate from any other pro-
ceeding. As examples it mentioned the writs of review and
mandamus, habeas corpus, punishment for contempt, a pro-
ceeding under the Corrupt Practices Act to compel the disclo-
sure of expenditures, and appeals of trial court decisions on
review of administrative actions. 294 Or at 4-5. 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. 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 P2d 364 (1993),
the Supreme Court held that a proceeding challenging an

Cite as 166 Or App 286 (2000) 	291
administrative investigative demand under the Unlawful
Trade Practices Act (UTPA) was a special statutory proceed-
ing, because it was entirely distinct from any action prosecut-
ing 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 con-
sistent 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 rel-
evant 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 vio-
lation of the UTPA; ifit 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
(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 proceed-
ings[.]" Id. at 186.
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 vio-
lation. 	Thus, 	a 	proceeding challenging an 	investigative
1 The court also noted that "Io lne of the reasons for requiring that the judicial
proceedings be separate and wholly distinct is to avoid disruption of other judicial
proceedings." Garganese, 318 Or at 186. Avoiding disruption, thus, is primarily a
reason for requiring that the proceeding be separate, not a test of what constitutes
separateness. To the extent that the Supreme Court, in determining appealability,
considers whether an appeal would disrupt another proceeding, it is as an addi-
tional criterion, not as one of the tests for what makes a proceeding separate and
distinct. See id.

292 	State v. Branstetter
demand may be entirely separate from an enforcement pro-
ceeding 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. 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 appeal-
able under what is now ORS 19.205(4). Id. at 187-88. Garga-
nese, thus, is simply an application of Threet to a statute that
expressly contemplated separate proceedings.
The dissent also relies on State v. K.P., 324Or1, 921
P2d 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 authori-
zations for appeal, the Supreme Court held that the order
was appealable under what is now ORS 19.205(4). Its rea-
sons 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
' In a case that the Supreme Court decided the same day as Garganese, it noted
that "DOJ need not make a threshold showing at the investigative demand stage
that the recipient of the investigative demand, or that the entity under investiga-
tion, falls within the definition contained in ORS 646.605<7 l fdescribing part of the
coverage of the CTPAJ. One legitimate aim of the investigation may be to discover
whether lthe recipient's] practices are covered by the Act." Vendall Marketing
Corp. u. Dept. of Justice, 318 Or 189, 195, 863 P2d 126:3 11993 L

Cite as 166 Or App 286 (2000) 	293
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 spe-
cial statutory proceeding. K.P., 324 Or at 4-6.
The foundation for the court's analysis in K.P., thus,
was that a motion under ORS 137.225 to set aside a convic-
tion starts a new proceeding from the original prosecution; if
it did not, one of the other statutes would have controlled the
appealability of the decision. The court determined that the
proceeding in question was not part of the criminal proceed-
ing and was appealable for that reason. That is different from
this case, in which the statute expressly provides that the for-
feiture proceeding is part of the criminal case.
The final cases that the dissent discusses, State v.
Cunningham, 161 Or App 345, 985 P2d 827 (1999), and State
v. Curran, 291Or119, 628 P2d 1198 (1981), both involve cur-
rent ORS 19.205(2)(c). That statute does not apply in this
case, because the court entered the order of forfeiture before
the judgment of conviction. In any event, ORS 19.205(2)(c) is
conceptually inconsistent with a special statutory proceeding
under ORS 19.205(4). In Cunningham, we held that an order
in a criminal case that denied the defendant's motion to seal
certain records relating to defense expenses was appealable
as a post-judgment order that affected a substantial right.
We concluded that, although the motion was made in a crim-
inal case, it was essentially civil in character and thus the
civil appeals statute controlled. We did not discuss the possi-
ble applicability of ORS 19.205(4). Indeed, ifthe court's order
was a post-judgment order in the criminal case, it could not
have been a judgment in a special statutory proceeding.
In Cunningham we relied in part on Curran, in
which the defendant did not appeal from his conviction but
instead appealed from a post-conviction punitive forfeiture
that was imposed under former ORS 471.665 (1979). Under
that statute, a court could order the sale of property used to
transport contraband, pursuant to an order that it entered
after the conviction of the person. Former ORS 471.665(1)
(1979). The forfeiture apparently occurred on the entry of the
order. In Curran, the court entered the order of sale over a
month after it entered the judgment of conviction. As a

State v. Branstetter
result, the court noted, the appeal of the forfeiture was not an
appeal from a judgment on conviction. Rather, the forfeiture
was in the nature of a civil penalty, and the civil appeal stat-
utes therefore applied. The court then concluded that the
applicable statute was current ORS 19.205(2)(c), because the
order was both final as to the forfeiture and came after judg-
ment. Although it also noted that current ORS 19.205(4) was
"arguably applicable," it had no reason to decide the issue.
Curran, 291 Or at 124-27.
Contrary to the dissent's suggestion, Curran sup-
ports our conclusion that we do not have jurisdiction over this
case. The forfeiture in that case was not a separate proceed-
ing. Rather, as the Supreme Court recognized, "the trial
court was authorized to proceed with the matter of forfeiture
without the necessity of resort by the district attorney to a
new and separate cause[.]" 291 Or at 126. That conclusion
is also inherent in the court's reliance on current ORS
19.205(2)(c) for its jurisdiction, because that statute requires
that the order be made after judgment in the same case. The
court decided Curran a year before it decided Threet, so when
it suggested that current ORS 19.205(4) might also apply it
did not have the benefit of the more careful consideration
that it gave that statute in the later case. The emphasis in
Threet and later cases on separateness as an essential ele-
ment of a special statutory proceeding means that it is impos-
sible to find jurisdiction of the same order or judgment under
both subsections. If the order is appealable because it comes
after judgment in the same case, it cannot be an order in a
special (and thus separate) statutory proceeding. Thus, hold-
ing that one of these subsections applies necessarily means
that the other does not.
We have followed Threet in more recent cases. Thus,
in Strother and Strother, 130 Or App 624, 628, 883 P2d 249
(1994), rev den 320 Or 508 (1995), we followed Threet and
held that a proceeding under the Abuse Prevention Act was a
special statutory proceeding. In doing so, we emphasized that
the proceeding involved clearly defined parties and was not
part of any other judicial proceeding. In State v. Gangi, 66 Or
App 582, 675 P2d 181 (1984), we held that we had no juris-
diction over an appeal from an order continuing a case for five

Cite as 166 Or App 286 (2000) 	295
years rather than placing the defendant under the jurisdic-
tion of the Psychiatric Security Review Board or discharging
him. We agreed with the state's reliance on an earlier case,
which we held was consistent with Threet, to show that there
was no special statutory proceeding.
The application of Threet and Garganese to this case
is clear. The essential issue is whether the order of forfeiture
occurred in a proceeding that was separate and distinct from
the criminal case. The statute that authorizes the forfeiture
also answers that question. ORS 167.347(1) provides that a
county animal shelter or other animal care agency that is car-
ing for an animal pending the outcome of a criminal animal
neglect case "may file a petition in the criminal action" seek-
ing to forfeit the animal to the agency. The court will then
hold a hearing on the petition. If it finds that there is proba-
ble cause to believe that the animal was subject to abuse,
neglect, or abandonment in violation of the criminal statutes,
it shall order immediate forfeiture unless the defendant posts
a bond within 72 hours in an amount sufficient to repay the
costs of caring for the animal from the date of impoundment
to the date of trial. ORS 167.347(3)(a). Although the purpose
of the bond and forfeiture requirement is not punitive, the
statute expressly provides that the entire procedure occurs
within the criminal case. Because it is not separate from that
case, it cannot be a special statutory proceeding under ORS
19.205(4). Because it is not a special statutory proceeding,
and because there is no other possible basis for appellate
jurisdiction, we do not have jurisdiction over this appeal. 5
"This case illustrates the importance of the requirement that special statutory
proceedings be separate from other judicial proceedings. If defendant were entitled
under ORS 19.205(4) to appeal from the order that forfeited his interest in the
animals, he would file his notice of appeal in his criminal case, as he did here,
because that is the only case in which it could be filed. If he had done that before his
second trial on the animal neglect charges, the filing of the notice would have
deprived the trial court of jurisdiction to conduct that trial. See, e.g., ORS 19.270(1);
ORS 138.083; Macy v. Blatchford, 154 Or App 313, 324, 961 P2d 873, rev allowed
328 Or 194 (1998). We would then have had to decide defendant's appeal from the
forfeiture order before the case could have been returned to the trial court for trial
of the criminal charges. The requirement that special statutory proceedings be sep-
arate to be appeal able under ORS 19.205( 4) avoids creating situations, such as the
one described here, in which people could obtain appellate review of interlocutory
orders. Tellingly, none of the cases on which the dissent relies involved a situation
in which appellate review under ORS 19.205(4) would deprive a trial court or

State v. Branstetter
Our decision that we have no jurisdiction over the
appeal decides this case. However, we will respond briefly to
the dissent's argument that the forfeiture was an excessive
fine because of the disproportion between the cost of caring
for the animals and their value. 6 The underlying problem
with the dissent's conclusion is that the forfeiture was not a
fine or any other form of punishment for defendant's alleged
abuse of the animals. Because of defendant's acquittal, any
fine for that offense would be excessive and beyond the trial
court's authority. If defendant had been convicted of animal
abuse, ORS 167.350 would have provided authority for the
court to forfeit his rights in a mistreated animal. Such a puni-
tive forfeiture, however, is not the purpose of ORS 167.347.
Rather, the purpose of that statute is to ensure that the
agency that takes care of allegedly abused or neglected ani-
mals pending the trial will be able to recover the expense of
that care. That purpose is obvious from the structure of the
statute.
ORS 	167.345 	provides 	the 	background 	to 	ORS
167.347. Under that statute, if there is probable cause to
believe that an animal is being abused, a peace officer, after
obtaining a search warrant, may impound the animal. ORS
167.345(2). The court may then order the impounded animal
held at an animal care facility. The statute requires the facil-
ity to provide adequate food and water and permits it to pro-
vide veterinary care. ORS 167.345(3). The purpose of ORS
167 .347 is to establish the method of paying for the costs that
the facility incurs in carrying out those responsibilities. Sub-
section (1) permits the agency, before final disposition of the
criminal charge, to petition for a court order forfeiting the
animal. Subsection (2) provides for a hearing on the petition.
Under subsection (3), the agency has the burden of establish-
ing probable cause that the animal was abused; ifthe agency
meets that burden, the court shall order forfeiture unless the
defendant posts a bond or security deposit within 72 hours.
agency of jurisdiction to proceed with a pending matter. That is because none of
them violated the separateness requirement, as a decision in favor of defendant on
the jurisdictional issue in this case would.
"As part of arguing that the forfeiture was an excessive fine, the dissent
emphasizes that the forfeiture is part of the criminal action, not separate from it.
In doing so, it shows that the forfeiture is not a special statutory proceeding and,
thus, that we do not have jurisdiction over this appeal.

Cite as 166 Or App 286 (2000) 	297
Subsection (5) allows the agency to draw on the bond or secu-
rity deposit to cover its actual reasonable costs. Finally, sub-
section (6) expressly provides that the statute is in addition
to, not in lieu of, ORS 167.350, which provides for forfeiture
as a penalty on conviction.
The essential point about ORS 167.347 is that the
purpose for the forfeiture is to ensure payment to the agency,
not to punish the defendant. Permitting the defendant to
avoid the forfeiture by providing security for the agency's
expenses-that is, to fulfill the defendant's obligation as
owner of the animals to give them adequate care-is in itself
inconsistent with the idea that the forfeiture is punitive.
Under ORS 87.159, the agency has a lien on the animals in
its care. It appears that ORS 167 .347 provides an alternative,
more efficient, method for protecting the agency. Because
that method is not punishment for a crime, it is not unconsti-
tutional on any ground that defendant raises. 7
Appeal dismissed.
EDMONDS, P. J., dissenting.
After defendant was acquitted of violating ORS
167.315, he appealed the forfeiture of his ownership interest
in 11 horses and one donkey under ORS 167.347. His appeal
presents two issues: (1) Is the trial court's order requiring
defendant to forfeit his ownership interests in his animals
appealable under ORS 19.205(4)? (2) Does the forfeiture con-
stitute an "excessive fine" under Article I, section 16, of the
Oregon Constitution? The majority's answers to those ques-
tions are incorrect for the reasons that follow.
ORS 19.205(4) 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
' Defendant does not assert that there is any constitutional infirmity in the
failure to provide in ORS 167 .34 7 for sale rather than forfeiture of the animals,
with the owner receiving the proceeds that exceed the costs of sale and the agency's
expenses. Foreclosing a lien would normally require such a sale and disposition of
the proceeds. See ORS 87.206.

298 	State v. Branstetter
appeal is expressly prohibited by the law authorizing such
special statutory proceeding."
The majority concludes that ORS 19.205(4) is inap-
plicable to defendant's appeal because ORS 167.347 provides
that "the county or other animal care agency may file a peti-
tion 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
majority asserts, "Because ORS 167.347 establishes a proc-
ess that the statute expressly makes a part of the underlying
criminal case, it cannot be a special statutory proceeding."
166 Or App at 290. The majority's analysis proves too much.
In other words, the majority reasons that because the peti-
tion for forfeiture is filed within the criminal proceeding, it
necessarily follows that the judgment rendered on the peti-
tion is part of the criminal proceeding for purposes of ORS
19.205(4). However, the issue is more complicated than that
because forfeiture proceedings are essentially civil in nature.
The legislature could have intended that a proceeding under
ORS 167.347 be separate from the criminal proceeding; two
proceedings, one civil and one criminal, proceeding at the
same time under the cloak of the criminal proceeding but
each independent of the other in their nature and outcome.
The answer to the issue is found in the text and con-
text of the applicable statutes. ORS 167.350(1) provides for
the forfeiture of ownership interests in mistreated animals
"[i]n addition to and not in lieu of any other sentence it may
impose * * *." If defendant had been convicted and his inter-
ests in the subject animals forfeited in addition to his sen-
tence, defendant's right to appeal would have been under
ORS 138.040. In the absence of a criminal conviction, the
appealability of a judgment of forfeiture under ORS 167 .347
presents two possibilities: (1) The legislature did not intend
such a judgment to be appealable even though it did intend
for such ajudgment to be appealable when the defendant was
convicted of criminal mistreatment of animals, or (2) the leg-
islature intended a judgment pursuant to ORS 167.347 to fall
within the purview of ORS 19.205(4). ORS 19.205 provides
what judgments are appealable in civil cases. ORS 138.040
provides for appeals from criminal convictions including con-
victions under ORS 167.310 through ORS 167.340. It is

Cite as 166 Or App 286 (2000) 	299
incongruous to believe that the legislature would have
intended only convicted persons to have the right to appeal
from the effect of civil forfeitures under ORS 138.040 when
ORS 167 .34 7 contemplates that a forfeiture is authorized
even though no conviction occurs in the criminal case. 1
Surely, the context of the statutory scheme as a whole indi-
cates an intention that those acquitted of the criminal
charges under ORS 167.310 through ORS 167.340, but sub-
ject to a civil judgment of forfeiture, would have appellate
rights commensurate with those convicted under the crimi-
nal statutes. Consequently, "any special statutory proceed-
ing'' within the meaning of the text and context of ORS
19.205(4) must be understood to include proceedings pursu-
ant to ORS 167.347 to provide parallel avenues of appeal.
(Emphasis added.)
The majority relies primarily on language from State
v. Threet, 294 Or 1, 653 P2d 960 (1982), in support of its view
that the legislature did not intend to afford the right to
appeal a judgment of forfeiture under ORS 167.347 to an
unconvicted defendant. The first observation to be made
about all of the case law interpreting ORS 19.205(4) is that
there is no Supreme Court or Court of Appeals case of which
I am aware that is on point directly regarding whether ORS
167.347 should be considered a special statutory proceeding
under ORS 19.205(4). In other words, this case does not pres-
ent the situation where the Supreme Court's case law had
become part of the statute as if it had been written into the
statute at the time of its adoption. The holding in Threet is no
exception to that observation. The issue in that case was
whether orders of the circuit court requiring witnesses to
appear and testify before a grand jury were appealable under
ORS 19.205(4). In deciding that question, the court focused
on the effect of permitting an appeal that would disrupt the
substance of the grand jury process, a step in a criminal pro-
ceeding that had been already commenced. Threet, 294 Or at
7. In contrast, this case involves a forfeiture proceeding that
' ORS 167.347(3)( aJ provides that the petitioner in the forfeiture proceeding
"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." A conviction under ORS 167.310 to ORS 167.340 requires proofbeyond a
reasonable doubt, not probable cause.

State v. Branstetter
is entirely discrete from the criminal trial process. Thus,
Threet does little to inform the inquiry of the legislature's
intent regarding ORS 19.205( 4) as it applies to the facts of
this case.
Nonetheless, one of the most recent Supreme Court
decisions interpreting ORS 19.205(4), Garganese u. Dept. of
Justice, 318 Or 181, 864 P2d 364 (1993), provides some
insight into deciding the issue, even though it concerned dif-
ferent facts. In that case, decided after Threet, the question
was whether the Department of Justice's demand for infor-
mation from a telemarketing company pursuant to ORS
646.618(1) was a separate and distinct judicial proceeding
from an action under ORS 646.632. The latter statute author-
izes the department to prosecute for unlawful trade prac-
tices. Under ORS 646.618(1), a prosecutor may serve an
investigative demand "upon any person who is believed to
have information * * * relevant to the alleged or suspected
violation." Under ORS 646.632, a prosecutor who has proba-
ble cause to believe that an unlawful trade practice will occur
or is occurring may bring an action to enjoin violations of the
act. Because the enforcement proceeding could be brought at
any time under the statutory scheme, an appeal from the
investigative demand process does not operate to disrupt the
enforcement proceeding, as could have occurred in the crimi-
nal process in Threet. Garganese, 318 Or at 187-88.
Nonetheless, the Department of Justice in Garga-
nese 	argued that the investigative demand under ORS
646.618(1) was merely a constituent part of its enforcement
powers under ORS 646.632, rather than a separate proceed-
ing. Therefore, it followed that an appeal from a circuit court
order requiring the plaintiffs to comply with the depart-
ment's investigative demand on them was impermissible
under the predecessor statute to ORS 19.205(4). That argu-
ment is similar in concept to the argument made here by the
majority. The court rejected the department's argument,
holding that the procedure for challenging a demand under
ORS 646.618(1) was a separate and distinct judicial proceed-
ing from the department's enforcement powers under the
"At the time of the appeal, there was no enforcement proceeding pending in
Garga11ese.

Cite as 166 Or App 286 (2000) 	301
Unlawful Trade Practices Act because the investigative pro-
ceeding had clearly defined parties and because it did not dis-
rupt any other judicial proceeding.
When the forfeiture proceeding under ORS 167.347
in this case is considered in light of the court's interpretation
of ORS 19.205(4) in Garganese, the analogy is apparent. ORS
167.345 through ORS 167.350 are statutes that are part of
the Oregon Criminal Code regarding offenses against ani-
mals. ORS 167.315 provides that a person commits the crime
of animal abuse in the second degree if the person intention-
ally, knowingly, or recklessly causes physical injury to an
animal. The person need not be the owner of the animal to be
culpable under the statute. In contrast, ORS 167.345 and
ORS 167.347 authorize civil in rem proceedings regarding
the animals themselves, not unlike other forfeiture proceed-
ings that are directed against title or ownership interests in
things. ORS 167.345 authorizes the seizure and impound-
rnent of endangered animals. ORS 167.347 provides that the
county or other animal care agency "may file a petition in the
criminal action requesting that the court issue an order for-
feiting the animal * * *prior to final disposition of the crimi-
nal charge." (Emphasis added.) In the event that a defendant
is convicted under ORS 167.315, ORS 167.350 authorizes the
sentencing court to require the defendant to forfeit "any
rights * * * in the animal," but forfeiture is also authorized
under ORS 167.347 apart from any sentence.
Not unlike the relationship between ORS 646.618(1)
and ORS 646.632 in Ganganese, the provisions of ORS
167.345 and ORS 167.347 demonstrate that they authorize
separate proceedings within the meaning of ORS 19.205(4)
from a criminal action under ORS 167.315 and ORS 167.350.
The parties in the civil forfeiture proceeding are different
from the parties in the criminal action and are clearly
defined. In the criminal proceeding, the parties were the
State of Oregon and defendant. In the forfeiture proceeding,
the parties are Umatilla County, the Pioneer Humane Soci-
ety, and defendant.
Also, a proceeding under ORS 167.347 may be filed
as part of the criminal proceeding, just as an investigative

302 	State v. Branstetter
demand under ORS 646.618(1) could occur as part of a pros-
ecution under ORS 646.632. Under ORS 646.618(1), an
investigative demand is not limited to serving a demand on a
person suspected of violating the Unlawful Trade Practices
Act. Such a demand can be made on a person who is not a
party in the enforcement action. Similarly, a forfeiture pro-
ceeding under ORS 167.347 is not limited to the person
charged with a violation of ORS 167.315. Rather, it applies to
anyone whose animal is endangered, whether the owner or
someone else perpetrated the abuse or neglect. Most impor-
tantly, the existence of the forfeiture proceeding is not
dependent on the outcome of the criminal proceeding, nor
does the forfeiture proceeding disrupt the criminal proceed-
ing. The facts in this case illustrate the point. The forfeiture
order against defendant was entered before he was acquitted
of the charges under ORS 167.315.
The majority draws a fine line in its effort to distin-
guish Garganese and to defeat the above analogy. It says that
the element of the avoidance of disruption in another pro-
ceeding "is primarily a reason for requiring that the proceed-
ing be separate, not a test of what constitutes 'separateness.' "
166 Or App at 291 n 3. It concludes, "Garganese, thus, is sim-
ply an application of Threet to a statute that expressly con-
templated separate proceedings." 166 Or App at 292. The
majority's analysis assumes the ultimate conclusion that it
makes without considering that the civil nature of ORS
167.347 makes it conceptually separate from the merits of
the criminal proceeding within which it is initiated and that
the statutory procedure can be resolved without disruption to
the criminal process. If anything, the nexus between ORS
646.618 and ORS 646.632 is closer than the nexus between
ORS 167.347 and a prosecution under ORS 167.315. An
investigation under ORS 646.618 could lead to a prosecution
under ORS 646.632. However, a petition filed under ORS
167.347 plays no role in an adjudication under ORS 167.315.
Also, the majority's reasoning is inconsistent with
the Supreme Court's holding in State v. K.P., 324 Or 1, 921
P2d 380 (1996), where a post-judgment order pertaining to a

Cite as 166 Or App 286 (2000) 	303
criminal proceeding was held appealable under the predeces-
sor statute to ORS 19.205(4). The defendant in K.P. had been
convicted of theft in the second degree. Subsequently, she
brought a motion to seal the records of that misdemeanor
conviction pursuant to ORS 137.225. The trial court's order
sealed some records but excluded others from being sealed.
The defendant appealed from that order. On appeal, the
court first concluded that the appeal provisions of ORS chap-
ter 138 did not apply because the statutory proceeding was
intended to serve a rehabilitative function - the "antithesis of
the original criminal conviction." K.P., 324 Or at 6-7. Thus,
the defendant in K.P. had no ability to appeal the order under
chapter 138, even though she had been convicted. Moreover,
her motion to seal the records did not affect the merits of the
criminal proceeding, nor did it disrupt or revive the criminal
proceedings. Cf. State v. Endsley, 214 Or 537, 331 P2d 338
(1958) (holding that an appeal denying a petition for what
was essentially a petition for a new trial to reopen the crimi-
nal process was not separately appealable.) This case is more
like K.P. than it is like Endsley on which Threet relied.
The majority's reasoning begins with the unwar-
ranted assumption that the forfeiture order pertains to the
merits of the criminal process. However, it does not necessar-
ily follow from the fact that the petition for forfeiture may be
filed "in the criminal action" that the judgment rendered on
the petition is a part of the merits of the criminal process. The
motion to seal the records in K.P., although related to the
criminal proceeding, did not affect the process that led to the
criminal judgment of conviction. Similarly, the judgment of
forfeiture in this case is not part of the underlying criminal
process and has no effect on defendant's acquittal.
Even though the forfeiture judgment is not part of
the criminal process, the fact remains that it could have been
part of the sentence, had defendant been convicted. Does that
possibility, together with the fact that the forfeiture proceed-
ing is filed within the criminal proceeding, materially com-
ment on the legislature's intent regarding appealability of
the forfeiture order? Although also not directly on point, one
of our recent cases, State v. Cunningham, 161 Or App 345,
985 P2d 827 (1999), is instructive on that issue, primarily

State v. Branstetter
because it relies on a Supreme Court case, State v. Curran,
291 	Or 119, 628 P2d 1198 (1981), in its analysis. 3 In
Cunningham, the defendant argued that an order seeking
court records pertaining to his indigent defense expenses
from his criminal trial was essentially civil in nature,
although it was filed in the criminal case. 161 Or App at 348.
We reviewed several cases, each of which found appellate
jurisdiction either in ORS 19.205(2)(c)4 or ORS 19.205(4). Id.
at 348-50. We concluded that:
"In each of those cases, a post-trial order that did not per-
tain to the merits of the criminal trial was appealed, and, in
each instance, the appellate courts concluded that ORS
chapter 138 did not bar the appeal and that [ORS chapter
19] permitted the appeal." Id. at 350.
In Curran, the owner of a vehicle appealed an order
forfeiting his motor vehicle. Apparently, the vehicle had been
seized when the owner had been arrested for unlawful pos-
session and transportation of cocaine. Similar to the forfei-
ture of the animals in this case, the forfeiture in Curran was
not part of the defendant's criminal sentence. On appeal, the
court asked the parties to identify the source of appellate
jurisdiction. Curran, 291 Or at 122. The court reviewed the
sources that the parties identified, including the provisions of
ORS chapter 19 and ORS chapter 138, and held:
"We have reached the conclusion that ORS 19.010(2)(c)
[renumbered as ORS 19.205(2)(c)] is applicable. The order
* * * was final in disposing of the motion for an order of for-
feiture. It affected a substantial right and was made in a
proceeding after the judgment of conviction." Id. at 127.
The 	Curran 	court 	reached 	its 	conclusion 	even
though it acknowledged that "it could be argued that the pro-
ceeding occurred in court in connection with a completed
criminal action." Id. at 125 n7. In both Curran and Cunning-
ham, the critical fact was that the orders on appeal, although
' See also State u. Arms, 60 Or App 400, 653 P2d 1004 ( 1982), rev den 294 Or
461 (1983J. In Arms, the defendant, who was acquitted on a criminal charge,
appealed an order to pay costs incurred by the county for her court-appointed coun-
sel. We held that the judgment making her liable for the costs was appealable
under former ORS 19.0l0(2)(c), renumbered as ORS 19.205(2).
' ORS 19.205(2)(c) provides review on appeal of"[ al final order affecting a sub-
stantial right, and made in a proceeding after judgment or decree."

Cite as 166 Or App 286 (2000) 	305
the result of motions filed in the criminal cases, "did not per-
tain to the merits of the criminal trial." Cunningham, 161 Or
App at 350. The majority points out that Cunningham and
Curran were decided under ORS 19.205(2)(c), and it asserts
that "ORS 19.205(2)(c) is conceptually inconsistent with a
special statutory proceeding under ORS 19.205(4)." 166 Or
App at 293. It correctly argues that, although the motions in
those cases were made or could have been made in the under-
lying criminal cases, the motions were essentially civil in
nature. ORS 19.205(2)(c) provides for appeal of "[a] final
order affecting a substantial right, and made in a proceeding
after judgment or decree." The claim of conceptual inconsis-
tency is unpersuasive. ORS 19.205(2)(c) pertains to "final"
civil orders. The forfeiture judgment as to defendant's own-
ership of the animals in this case is as "final" as it can be and
is in the nature of a civil judgment. It imposes no criminal
sanctions, only the loss of defendant's property. In that
respect, it is like the order sealing court records in Cunning-
ham and the order forfeiting the defendant's motor vehicle in
Curran.
The majority's further reliance on Strother and
Strother, 130 Or App 624, 883 P2d 249 (1994), rev den 320 Or
508 (1995), in which we held that a proceeding under the
Abuse Prevention Act, ORS 107.710, was a separate proceed-
ing under the predecessor of ORS 19.205(4), is somewhat
curious. We said in that opinion that "[i]t is instructive to con-
sider what the court has held not to be a 'special statutory
proceeding.'" 130 Or App at 628. We then focused on the
holdings in Threet and Endsley, noting that those cases
involved proceedings where an appeal could disrupt or abort
a criminal proceeding. In contrast, a proceeding under the
Abuse Prevention Act lacks such indicia, as does a forfeiture
under ORS 167.347.
In summary, the cases relied on by the majority do
not, as the majority suggests, require us to interpret ORS
19.205(4) to deny defendant his day in this court. The pro-
ceedings in Threet and the examples that it mentions all
involve proceedings that pertained to the merits of the crim-
inal process and involved a close nexus to the liberty interests
involved. Each had the possibility of disrupting other judicial
proceedings, and a decision on appeal could have given rise to

State v. Branstetter
inconsistent relief. 5 The potential for inconsistent relief does
not exist here. The forfeiture of defendant's animals as pay-
ment for the care provided by the humane society involves
the loss of his ownership interests, not his liberty interest.
Here, as in Garganese, there was no danger of dis-
rupting another proceeding because the forfeiture of defen-
dant's property interests were unrelated to the merits of the
criminal proceedings against him. The outcome of whether
there was "probable cause to believe that the animal[s] [were]
subjected to abuse, neglect or abandonment" had no bearing
on whether defendant was guilty of violating ORS 167.315.
Although the majority asserts that the filing of a notice of
appeal of the forfeiture judgment by defendant "would have
deprived the trial court of jurisdiction to conduct that trial[,]"
166 Or App at 295 n 5, there is no support for that proposition
unless the majority's underlying premise that the forfeiture
was an integral part of the criminal proceeding and that the
criminal proceeding could not have gone forward without a
determination under ORS 167.347 is accepted. Certainly,
there is no factual reason why the criminal proceeding had to
await the outcome of an appeal of the forfeiture proceeding.
In sum, the majority's ruling is unsupported by precedent
and flies in the face of the common-sense notion that a forfei-
ture proceeding under ORS 167.347 is directed at different
legal interests than the liberty interests involved in a prose-
cution under ORS 167.315. Accordingly, I disagree with the
majority's dismissal of defendant's appeal.
The second issue is whether the trial court's order
constitutes an "excessive fine" under Article I, section 16. The
majority dismisses defendant's argument with the assertion
that he has not been punished for the conviction of any crime
and, therefore, he has not been fined. It says that the purpose
of ORS 167.347 is to ensure that the care provider is compen-
sated for the expense of care pending trial and that purpose
was fulfilled here. If this case were only about compensating
the humane society for its expenditures in caring for defen-
dant's animals, I would agree with the majority. However,
the uncontradicted evidence is that the trial court ordered
'' The same rationale applies to our holding in State u. Gangi, 66 Or App 582.
675 P2d 181 rI984l.

Cite as 166 Or App 286 (2000) 	307
the forfeiture of defendant's animals, valued at between
$9,600 and $15,000, for expenses incurred in the amount of
$2, 700. If defendant had been convicted and a forfeiture
ordered under ORS 167.350, under those circumstances,
there is no question that the forfeiture would be considered
an "excessive" fine. Although defendant was not convicted, he
has been deprived of the value of his property in excess of the
value of the care because of the effort of the government to
convict him of criminal offenses. Thus, the question becomes
whether the forfeiture in excess of $2, 700 constitutes "pun-
ishment" under section 16 in light of the fact that defendant
was ultimately acquitted of the criminal charges. 6
The relevant portion of section 16 provides that
"[e]xcessive bail shall not be required, nor excessive fines
imposed." Its purpose is self evident. A criminal defendant
should not be punished beyond what is just. See, e.g., State v.
Ross, 55 Or 450, 474, 480, 104 P 596, 106 P 1022 (1910),
appeal dismissed 227US150, 33 S Ct 220, 57 L Ed 458 (1913)
(holding a fine excessive because it was greater than defen-
dant could pay in a lifetime). My review of Oregon appellate
case law reveals no case under section 16 that has facts sim-
ilar to this case or that would aid us in analyzing defendant's
argument. However, the "excessive fines" language in section
16 is identical to the language in the Eighth Amendment to
the United States Constitution and, therefore, cases constru-
ing its 	meaning in 	the 	context of civil forfeitures 	are
instructive.
Defendant's 	property 	interests 	in 	his 	animals
became subject to seizure and impoundment under ORS
167.345 and forfeiture under ORS 167.347 only because
there was probable cause to believe that ORS 167.315, a
criminal statute, had been violated. In addition to the seizure
of his property, defendant himself became a party charged
with a crime and subject to the criminal law processes. Later,
" The majority argues that it is internally inconsistent to assert that the forfei-
ture proceeding is a separate statutory proceeding under ORS 19.205141 from the
criminal proceeding against defendant, and then assert that the forfeiture proceed-
ing is part of the criminal punishment of defendant. However, "appealability"
under Oregon statutes is unrelated to whether government action constitutes
"punishment" under section 16. The former depends on the intent of the legisla-
ture, while the latter depends on the intent of the framers of the constitution.

State v. Branstetter
the forfeiture petition was filed during the criminal proceed-
ing. At the forfeiture hearing, the petitioners had the burden
of showing that defendant's animals were subjected to abuse
or neglect in violation of ORS 167 .315. In these kinds of cases,
the federal courts have looked beyond whether the nature of
the action is "civil" or "criminal" to determine if the govern-
ment sanction constitutes "punishment" within the meaning
of the Eighth Amendment.
For instance, in Austin v. United States, 509 US 602,
609, 113 S Ct 2801, 125 L Ed 2d 488 (1993), the Supreme
Court addressed the applicability of the Excessive Fines
clause to in rem civil forfeitures under 21 USC § 881. Previ-
ously, Austin had been convicted of violating federal drug
laws. Subsequent to his conviction and in a separate proceed-
ing, the government sought forfeiture of his mobile home and
auto body shop, alleging that they had been used in the drug
offenses for which Austin had been convicted. The Eighth
Circuit viewed the issue in a manner not unlike that held by
the majority. It ruled that the Eighth Amendment did not
apply to civil actions for the forfeiture of property to the gov-
ernment. The Supreme Court reversed.
The government argued to the Supreme Court in
Austin that the Eighth Amendment did not apply "unless the
challenged government action, despite its label, would have
been recognized as a criminal punishment" at the time of the
adoption of the Eighth Amendment or unless the civil pro-
ceeding was so punitive that it must be deemed criminal in
nature. 509 US at 607. The court rejected the government's
argument:
" 'The notion of punishment, as we commonly understand
it, cuts across the division between the civil and the crimi-
nal law.' United States v. Halper, 490 US 435, 447-448, 104
L Ed 2d 487, 109 S Ct 1892 (1989). 'It is commonly under-
stood that civil proceedings may advance punitive as well
as remedial goals, and, conversely, that both punitive and
remedial goals may be served by criminal penalties.' Id. at
447, 104 L Ed 2d 487, 109 S Ct 1892. ***Thus, the ques-
tion is not, as the United States would have it, whether for-
feiture under§§ 881(a)(4) and (a)(7) is civil or criminal, but
rather whether it is punishment." Austin, 509 US at 610
(emphasis added).

Cite as 166 Or App 286 (2000) 	309
In deciding whether the forfeiture of Austin's prop-
erty was "punishment" or "remedial," the court said,
"We previously have upheld the forfeiture of goods involved
in customs violations as a 'reasonable form of liquidated
damages.' But the dramatic variations in the value of con-
veyances and real property forfeitable under§§ 881(a)(4)
and (a)(7) undercut any similar argument with respect to
those provisions. The Court made this very point in [United
States v. Ward, 448 US 242, 65 L Ed 2d 742, 100 S Ct 2636
(1980)]: the 'forfeiture of property * * * [is] a penalty that
ha[s] absolutely no correlation to any damages sustained by
society or to the cost of enforcing the law.' " 509 US at 621
(citations omitted).
Thus, the court concluded that both fixed-amount penalties
and the forfeitures of property constitute punishment if they
are not solely remedial and occur as the result of prior crimi-
nal proceedings. Id. at 618 n 12, 622 n 14.
Had defendant been convicted, it is clear that under
the holdings in Austin and Ward any forfeiture in excess of
the damages sustained by the county and the humane society
would have constituted "punishment."' In both this case and
In Austin, 21 USC §§ 88l!aJ14J and 1aii7 I 119931 provided authorization for
the government to seek forfeiture of the defendant's property. Those statutes pro-
vide for the forfeiture of:
"( 4 I All conveyances, including air craft, vehicles, or vessels, which are
used, or are intended for use, to transport. or in any manner to facilitate the
transportation, sale, receipt, possession, or concealment of rcontrolled sub-
stances, their raw materials, and equipment used in their manufacture and
distribution. l
"::: :·
"17J All real property, including any right, title, and interest <including
leasehold interesti in the whole of any lot or tract of land and any appurte-
nances or improvements, which is used, or intended to be used, in any manner
or part, to commit, or to facilitate the commission of. a violation of this sub-
chapter punishable by more than one year's imprisonment"' '' ''' "
Each of those provisions has an "innocent owner" exception, see 21 USC §§
881!al(4!1C I and !a H7J, but has no provision requiring, or allowing, the trial court to
consider whether forfeiture would be excessive.
In response to Austin, the Oregon Legislature enacted ORS 475A.100 in 1993
to supplement Oregon's drug-related in rem forfeiture statutory scheme to avoid
excessive punishment claims under the Eighth Amendment. See Tape recordings,
Senate Judiciary Committee, HB 2381, June 28, 1993, Tape 203, Sides A and B,
and Tape 204, Side A; July 16, 1993, Tape 221, Side B, and Tape 222, Side B; July
30, 1993, Tape 2:35, Side A, and Tape 236, Side A. ORS 475A.100 specifically

310 	State v. Branstetter
Austin, the forfeitures were not part of a sentence imposed by
the sentencing court after a criminal trial, but were imposed
as the result of a separate civil proceeding. Also, in U. S. u.
3814 NW Thurman Street, 164 F3d 1191, on reh'g 172 F3d
689 (9th Cir 1999), the government sought forfeiture of the
subject property in a civil proceeding on the ground that the
defendant had fraudulently obtained a loan to refinance her
house in violation of federal law. The Ninth Circuit noted
that the defendant "ha[d] not been charged with any related
criminal activity, or for that matter, with any criminal activ-
ity at all." Thurman, 164 F3d at 1197. Nonetheless, the court
held that a forfeiture under a statutory proceeding similar to
the one at issue here violated the Excessive Fines Clause of
the Eighth Amendment.
When the facts of this case are compared with the
facts in Austin and Thurman, there is little difference. If any-
thing, defendant should be in a better position than Austin,
who had been convicted of criminal charges. It is clear from
those cases that a civil forfeiture can constitute "punishment"
under section 16 and the Eighth Amendment when the for-
feiture is not remedial in nature, whether the underlying
action is civil or criminal in nature and whether or not the
defendant is convicted of a crime. Here, defendant did not
voluntarily place his animals with the humane society. They
were seized and impounded by the government because of
pending criminal charges. Had the animals been sold to pay
for the humane society's cost of care and had the balance
from the sales price after compensating the humane society
for their out-of-pocket expense been remitted to defendant,
the forfeiture would not have been excessive. But that is not
what occurred here. As a result of the criminal prosecution
against him, defendant lost all of the value of his animals. To
the extent of $2, 700, the forfeiture could be considered "reme-
dial" in nature. Beyond that amount, it is necessarily "puni-
tive." In defendant's case, any punishment is necessarily
excessive in light of his acquittal. The framers of the consti-
tutions could not have intended that the fortuity of acquittals
requires the trial court to consider "whether any portion of the proposed judgment
of forfeiture is excessive" and lists the particular factors that the court must con-
sider. For purposes of Article I, section 16, a forfeiture under ORS 167.347 should
not be treated differently from a forfeiture under ORS 475A.100.

Cite as 166 Or App 286 (2000) 	311
could operate to permit the government to obtain a forfeiture
beyond that which would have been available had there been
a conviction.
Because defendant has been "punished" for his
alleged criminal conduct by the loss of the entire value of his
animals, I dissent.