The following was filed a month ago and has not been ruled on yet. I was excited when I read it because it sounded really solid but IANAL, obviously, and definitely not a prosecutor or judge, so not sure if I was just wildly optimistic in thinking that it would bring some sanity, if not actual good sense into my situation, (skip to block quote), (deeper background, long read).
They don't have evidence to back up what they've alleged, but it would still be better not to have to go to trial and waste everybody's time, but the county is on the hook to get the crap sued out of them if they drop it or I win, so they're heavily invested.
I would appreciate (unofficial, nonbinding, unaccountable) opinions, please. Not looking for legal advice, just input. I've put a poll in so there's nothing attached to any opinions offered, and all are gratefully accepted. The text is exact, but the italicized bits and the one footnote aren't presented as they are in the filing, (iPad restrictions). She did it properly, I just couldn't reproduce the font and formatting stuff here, so that's on me.
Thanks
UPDATE:
Finally heard from the judge, lawyer says he punted. Denied for 'untimely filing', is the upshot. The first attorney never read the statutes closely enough to catch the problem, I'm the one that ended up finding the exemptions, dammit.
Also got a copy of the DA's response. Lawyer says it's the legal equivalent of 'nuh-uh'. ::sigh:: Justice delayed is justice denied, indeed. Cheating, FOS bastards.
Comes now the defendant, buy and through her attorney, ---------, and demurs to the indictment regarding counts 2 through 19, under ORS 135.630(4), because the acts alleged in the indictment do not constitute an offense.
Procedural Posture
ORS 135.630 requires dismissal of an accusatory instrument "when it appears on the face thereof" that the facts stated do not constitute an offense. The state may attempt to defeat the demurrer by attempting to convince the court-with extrinsic evidence- that the indictment alleges acts that constitute animal neglect in the second degree. This is not permitted. Extrinsic evidence- anything outside the four corners of the indictment- may not be considered in evaluating a demurrer. State v Cervantes 232 Or App 567,573,233 P3d 425 (2009) (emphasizing words "when it appears on the face thereof" and declining to sustain demurrer that relied on facts extrinsic to the indictment); see also State v Worthington, 251 Or App 110, 116-7, 282 P3d 24 (2012) (citing Cervantes, emphasizing same statutory words, and declining to consider extrinsic evidence in support of a motion in arrest of judgement).
ORS 135.630(4) explicitly allows a demurrer to an indictment when the indictment does not allege acts that constitute an offense. ORS 167.325 states that:
" a person commits the crime of animal neglect in the second degree if, except as otherwise authorized by law, the person intentionally, knowingly, recklessly or with criminal negligence fails to provide minimum care for an animal in such a person's
custody or control."
In ORS 167.335 exemptions are set out to the offenses: "Unless gross negligence is shown, the provisions of ORS 167.315 to 167.333 do not apply to: [...](4) Animals subject to good animal husbandry practices."
Good animal husbandry is not defined in Oregon statutes, however animal husbandry "includes, but is not limited to, the dehorning of cattle, the docking of horses, sheep or swine, and castration or neutering of livestock, according to accepted practices of veterinary medicine or animal husbandry." ORS 167.310(4). Animal husbandry is defined as "the branch of agriculture concerned with the care and breeding of domestic animals such as cattle, hogs, sheep, and horses." Animal Husbandry, http://www.thefreedictionary.com/... (last accessed 6/10/13) (citing multiple dictionaries). Although Oregon law defines a "domestic animal" as "an animal, other than livestock and equines, that is owned or possessed by a person," ORS 167.310(2), it is clear from the description of good animal husbandry provided in ORS 167.310(4) and the dictionary definition of animal husbandry that the field is oriented more toward " livestock* " than "domestic animals".
*ORS 167.310(6) refers to ORS 609.125 for a definition, which states "as used in ORS 609.135 to 609.190, "livestock means ratites, psittacines, horses, mules, jackasses, cattle, llamas, alpacas, sheep, goats, swine, domesticated fowl and any fur-bearing animal bred and maintained commercially or otherwise, within pens, cages and hutches."
The charges at issue here involve an alleged failure to provide minimum care for 17 horses one goat. ORS 167.335 provides exemptions from the animal neglect statutes for animals subject to good animal husbandry practices, which clearly involve the care of "livestock"-type animals. All these animals are specifically listed in the definition of "livestock" under ORS 609.125, therefore the face of the indictment must show why the exemption does not apply to the charges at issue. The indictment must do this by showing "gross negligence" according to ORS 167.335
"Gross negligence" is also not described under the criminal statutes, however is defined in civil practice as "negligence which is materially greater the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the right of others." ORS 31.115(2). criminal negligence "means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that the failure to be aware of it constitutes a gross deviation from the standard that a reasonable person would observe in the situation." ORS 161.085(10). However, recklessness is when "a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or the circumstance exists. The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." ORS 161.085(9).
Based on these definitions, gross negligence requires something more than mere criminal negligence. Gross negligence is "greater than the mere absence" of care and involving a conscious indifference, while criminal negligence is, by definition, the failure to be aware of any need for care. Recklessness, however, involves a conscious disregard of such a risk and therefor would more closely equate with gross negligence. However, the indictment only alleges "criminal negligence" in allegedly failing to provide care for the livestock. As such, the Court should grant the demurrer in regards to Counts 2 through 19 because the face of the indictment fails to allege criminal acts.
CONCLUSION
The animals involved in this case are subject to the exemption in ORS 167.335, and the state did not allege any facts that elevate the actions to show gross negligence. As such, the state did not allege facts that constitute an offense. For those reasons, this court should grant the defendant's demurrer and dismiss counts 2 through 17 of the indictment.