The Supreme Court of Oregon holds that a forfeiture results only if the owner of the mistreated and impounded animals cannot fulfill the preexisting obligation of paying a security deposit or posting a bond so as to enable the state mitigate costs while ensuring that the animals receive the care that is legally required
Kenneth Lawrence Hershey v State of Oregon and Klamath County
Supreme Court of Oregon
Walters, CJ & SCJ; Balmer, Flynn, Duncan, Nelson, Garrett, and DeHoog, SCJJ
August 11, 2022
Reported by Faith Wanjiku and Bonface Nyamweya
Constitutional law-animal welfare- animal rights-neglect of animals-impounding of neglected animals-where the Klamath County Animal Control impounded 22 dogs, three horses, and seven chickens from the petitioner’s property- where the 1st respondent state subsequently charged the petitioner with three counts of second-degree animal neglect, one count for each type of animal- where the 2nd respondent’s attorney filed a petition pursuant to the Oregon Administrative Rules §167.347 regarding the care costs for impounded animals- where the 2nd respondent had incurred expenses relating to the care of the animals and expected to continue to incur those expenses as the criminal action continued- when did forfeiture result when mistreated animals were impounded at a care agency-what was the relief for a care agency that had taken care of mistreated animals that were impounded, whose owners failed to pay a security deposit or bond to cover the agency’s costs of caring for the animal- Oregon Administrative Rules, §167.347.
Property law-liens- impounded animals-what were liens in relation to impounded animals whose owners failed to pay a security deposit or bond to cover the agency’s costs of caring for the animal- whether using liens on animals to recover the costs of their care when impounded was without any limitations- Oregon Administrative Rules, §167.347.
In September 2017, Klamath County Animal Control impounded 22 dogs, three horses, and seven chickens from the petitioner’s property. The 1st respondent state subsequently charged the petitioner with three counts of second-degree animal neglect, one count for each type of animal. In December 2017, the 2nd respondent’s attorney filed a petition pursuant to the Oregon Administrative Rules §167.347 which provided that, when an animal was being held by an animal care agency pending the outcome of a criminal action for mistreatment of the animal, a district attorney, acting on behalf of the animal care agency, could file a petition in the criminal action asking the circuit court to order the forfeiture of the animal unless the defendant in the criminal action (or another person with a claim to the animal) paid a security deposit or bond to cover the agency’s costs of caring for the animal.
In the petition, the district attorney asserted that there was probable cause to believe that the animals had been subjected to treatment constituting second-degree animal neglect. The petitioner in the Supreme Court of Oregonhad been charged with three counts of that crime. The 2nd respondent had incurred expenses relating to the care of the animals and expected to continue to incur those expenses as the criminal action continued.
i. When did forfeiture result when mistreated animals were impounded at a care agency?
ii. What was the relief for a care agency that had taken care of mistreated animals that were impounded, whose owners failed to pay a security deposit or bond to cover the agency’s costs of caring for the animal?
iii. What were liens in relation to impounded animals whose owners failed to pay a security deposit or bond to cover the agency’s costs of caring for the animal?
iv. Whether using liens on animals to recover the costs of their care when impounded was without any limitations.
Relevant provisions of law
Administrative Rules, Title 16
If an animal is forfeited according to the provisions of ORS 167.347 (Forfeiture of animal to animal care agency prior to disposition of criminal action) or 167.350 (Forfeiture of rights in mistreated animal), the agency to which the animal was forfeited may place the animal with a new owner. The agency may give placement preference to any person or persons who had prior contact with the animal, including but not limited to family members and friends of the former owner whom the agency determines are capable of providing necessary, adequate and appropriate levels of care for the animal. The agency may not, however, place the animal with family members or friends of the former owner who aided or abetted the criminal conduct underlying the forfeiture or had knowledge of the criminal conduct and failed to intervene. As a condition of placement, the agency shall require the new owner to execute an agreement to provide minimum care to the animal. The agreement must indicate that allowing the former owner to possess the animal constitutes a crime.
Oregon Constitution, 1857
Article I, section 17- jury trial in civil cases
In all civil cases the right of Trial by Jury shall remain inviolate.
- The plain purpose of the Oregon Administrative Rules §167.347 was to protect agencies from having to pay costs that were the legal responsibility of an animal’s owner. What the Oregon Administrative Rules §167.347 did was to provide a way to implement the legal principle that, despite the impoundment, the obligation to provide adequate care for the animals remained the owner’s, not the government’s. A forfeiture resulted only if the owner could not fulfill that preexisting obligation (by paying a security deposit or posting a bond) to enable the state mitigate costs while ensuring that the animals received the care that was legally required—costs that, prior to the enactment of the Oregon Administrative Rules §167.347, agencies had struggled to recover.
- By requiring animal owners to pay a security deposit or post a bond for the care of their animals, and by authorizing the forfeiture of animals when their owners did not pay for that care, the statute thereby prevented the unjust enrichment of the owners while ensuring that the animals would receive the care that was legally required. Thus, the nature of the relief requested in a proceeding brought under the Oregon Administrative Rules §167.347 was equitable, in that the statute helped ensure that animal care agencies were not required to cover costs for care that animal owners had a legal obligation to pay.
- The legislative history of the Oregon Administrative Rules §167.347 confirmed that the nature of the relief that the statute provided was protection against the transfer of animal owners’ costs to animal care agencies. Prior to the enactment of the Oregon Administrative Rules §167.347, the legislature enacted the Oregon Administrative Rules § 87.159, which provided that, when an agency had provided care for an impounded animal, the agency had a lien on the animal for the reasonable costs of care of the animal and could retain the animal until the owner had paid the lien. But that statute did not protect agencies from incurring costs in the first instance, and, in some situations, those costs were not recoverable, such as when an owner did not want to reclaim the animal or when an owner was unable to pay the lien.
- The limitations of using liens on animals to recover the costs of their care came to the attention of the legislature after one county incurred approximately $100,000 in costs caring for impounded animals pending resolution of an animal abuse case. The legislature enacted Senate Bill 653, codified as the Oregon Administrative Rules § 167.347 to provide an alternative method to protect agencies from suffering significant losses as a result of having to care for impounded animals. The Oregon Administrative Rules § 167.347 was not intended to provide financial gain; it was intended only to enable county animal shelters and other animal care agencies to avoid unnecessary expense.
- The nature of the relief that the Oregon Administrative Rules §167.347 provided relief from having to pay ongoing costs for animal care when the animal’s owner was legally obligated to pay for that care was equitable, in that it protected against unjust enrichment of the owner. There was no court trial right in proceedings under statutes that required a person to reimburse the state for providing care that the person had a legal responsibility to provide. Those two indicators lead the court to the conclusion that a proceeding brought under the Oregon Administrative Rules § 167.347 did not involve a claim for relief that would have been tried to a court at the time of the adoption of the constitution, and, therefore, was not one to which the article I, section 17, of the Constitution of Oregon, 1857, regarding the court trial right applied.
- Although a defendant’s failure to pay a security deposit or post a bond under the Oregon Administrative Rules §167.347 could result in forfeiture of the defendant’s animals, it was the property which was proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient. The forfeiture procedure at issue was not an action in personam against some offending person but, rather, a special proceeding in rem against specific property because of some unlawful use having been made of it in violation of the state prohibition law.
- The nature of the relief requested in an in rem civil forfeiture proceeding was different than that sought in a proceeding brought under the Oregon Administrative Rules §167.347, in that the relief sought in an in rem civil forfeiture proceeding was not intended to prevent the inequitable shifting of legal obligations. Instead, it was intended to impose a consequence for past misconduct; an in rem civil forfeiture proceeding was similar to a criminal proceeding, in that, it was based on a legal fiction that the property had committed a crime.
- An in rem civil forfeiture proceeding was quasi-criminal in character in that its object, like a criminal proceeding, was to penalize for the commission of an offense against the law. In that way, an in rem civil forfeiture proceeding was markedly different from a proceeding brought under the Oregon Administrative Rules §167.347, which was not intended to impose a consequence for past misconduct but was instead intended to prevent the inequitable shifting of legal obligations. The purpose of the Oregon Administrative Rules §167.347 was to enforce the owner’s obligation to care for the animals; the statute did not impose a penalty of any sort for any kind of misconduct.
Petition dismissed; decision of the Court of Appeals and the order of the circuit court affirmed.
Relevance to the Kenyan jurisprudence
The Constitution of Kenya, 2010, in the fourth schedule, part 1, article 22, mentions protection of the animal rights when it says that one of the roles of the national government is the protection of environment, fishing, hunting and gathering; protection of animals and wildlife. Part 2 of the fourth schedule talks about county governments as having the role of veterinary services, animal control and welfare, including licensing of dogs and facilities for the accommodation, care and burial of animals.
The Kenya Society for the Protection and Care of Animals (the Society) is an animal welfare charity in Kenya protecting animals from neglect and abuse. Indeed:
Since the society’s formation one hundred years ago, KSPCA [Kenya Society for the Protection and Care of Animals] has grown and is well known for animal rescue and rehabilitation. With a focus on domestic animals, KSPCA is currently home to around 150 dogs, 90 cats as well as donkeys and goats at any one time. We rehome around 45-50 dogs and 20 cats every month.
Denson Mututo and Rose Mwangangi, in their article:Animals Advocacy Body Decry Donkey Abuse, discuss about Caritas, a Non-Governmental Organisation which operates in Kitui County, where they note that there are many donkeys being mistreated. Strictly:
…the donkey has been neglected and suffer diverse welfare issues including being overworked throughout the day without feed and failure to recognize care and protection by their owners… [there are] numerous cases involving the abuse of donkeys, poor husbandry practices and slaughtering for their meat has created a volatile environment for donkey care and survival across the country as well…Others even load luggage on injured backs of their donkeys and force them to push overloaded and heavy carts, while others assault by beating them harshly.
Section 21 of the Veterinary Act of 2011 implicitly highlights the care for animals when it talks about approval for veterinary clinical centres, hospitals and ambulatory services. The Prevention of Cruelty to Animals Act of 1983 [Rev 2012], in section 3 observes that:
(1) A person shall be guilty of an offence of cruelty if he—
(l) being the owner of any animal, without reasonable cause or excuse, does or omits to do an act which causes unnecessary suffering to the animal.
Further, in section 24, it stresses that:
(2) For the purposes of this section an owner shall be deemed to have permitted the commission of an offence if he fails to exercise reasonable care and supervision in respect of the protection of the animal therefrom provided that, where an owner is convicted of permitting the commission of an offence by reason only of his having failed to exercise reasonable care and supervision, he shall not be liable to imprisonment without the option of a fine.
Section 26 points out that:
(1) Whenever a person is charged with an offence under this Act or any regulation made thereunder in relation to an animal, a magistrate having jurisdiction in the area which the offence is alleged to have been committed may by order in writing authorize any person to seize that animal and to cause it to be removed to some place of custody, pending the hearing of the charge, if the magistrate is satisfied, from information given on oath, that such seizure and removal are necessary in order to prevent the animal being exposed to further damage, injury or unnecessary suffering.
(2) Upon the conviction of any person of an offence committed in relation to an animal which has been seized and placed in custody under subsection (1) of this section, the court shall, in addition to any penalty that may be imposed, order the person convicted to pay such sum equal to the costs which the court finds to have been incurred in connection with the seizure and custody of that animal and the sum so ordered to be paid shall be recoverable as if it were a fine.
In Joseph Wanjogu Kungu v Republic  eKLR, the appellant was charged with the offence of being cruel to an animal contrary to section 3(1)(K) of the Prevention of Cruelty to Animals Act (Cap 360 of the Laws of Kenya). The particulars of the offence were that on January 18, 2000 at Nyandarua Farm, Nakuru the appellant was found being cruel to an animal, namely a dog by killing it, the property of Christopher Njoroge Kimani. The appellant pleaded not guilty to the charge. After a full trial the appellant was found guilty as charged. He was sentenced to pay a fine of Kshs 300/= or in default he was to serve one month’s imprisonment. The appellant was aggrieved by the said conviction and sentence and filed an appeal before the High Court.
Granting the appeal, the court held that:
From the evidence of the appellant, there appears to have been a grudge between the appellant and the complainant over the destruction of a fence. It is most likely that the complainant saw an opportunity to “teach” the appellant a lesson when his dog was found dead near the fence of the appellant’s farm. All these factors raises reasonable doubt that PW4 infact saw the appellant kill the dog. Further the appellant offered an alibi defence which further supports his case that he was not present at home when the dog was killed. The alibi defence by the accused was not challenged by the prosecution on cross-examination.
Moreover, in Nicholas Dhadho v Republic  eKLR, the appellant was charged with one count of injuring animals contrary to section 338 of the Penal Code. The particulars of the offences were that on the October 21, 2016 at Vukoni village in Tana River Sub-County within Tana River County, the Appellant wilfully and unlawfully wounded animals capable of being stolen, five donkeys valued at Ksh. 75,000/-, the property of Eker Idhao.
The High Court partly allowed the appeal holding that:
It is my finding therefore that the sentence was lawful. However, I have considered the circumstances of the case. Firstly, I observe that the Appellant was wrongly convicted for injuring five donkeys instead of three donkeys as earlier pointed out in this judgment. Secondly, there was evidence which showed that the complainants’ animals had repeatedly destroyed the Appellants’ crops which provoked him. While the Appellant cannot be excused for taking the law into his hands, I find these to be mitigating circumstances and that the sentence meted was harsh and excessive.
This case is therefore significant to the Kenyan jurisprudence as it involves animal rights, precisely the role of care agencies and animal owners in relation to the care of impounded and mistreated animals, and the issue of forfeiture, as it holds that a forfeiture results only if the owner of the mistreated and impounded animals cannot fulfill the preexisting obligation of paying a security deposit or posting a bond to enable the state mitigate costs while ensuring that the animals receive the care that is legally required.