LINN COUNTY, Plaintiff-Appellee, vs. OLIN ANDREWS and WENDY ANDREWS, Defendants-Appellants.
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IN THE COURT OF APPEALS OF IOWA
No. 7-194 / 06-0801
Filed August 22, 2007
LINN COUNTY,
Plaintiff-Appellee,
vs.
OLIN ANDREWS and WENDY ANDREWS,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, David L. Baker,
Judge.
Defendants appeal a district court order that found they neglected
livestock and ordered them to reimburse Linn County for the costs on maintaining
the animals after they were seized.
AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED.
Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for
appellants.
Harold L. Denton, County Attorney, and Angie M. Wilson and Jason
Burns, Assistant County Attorneys, for appellee.
Heard by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
takes no part.
Baker, J.,
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ZIMMER, J.
This appeal arises from the seizure of livestock pursuant to Iowa Code
chapter 717 (2005).
The district court determined Olin and Wendy Andrews
neglected their livestock and ordered the Andrews to reimburse Linn County for
the costs of the rescue and maintenance of the animals. We affirm in part and
reverse in part.
I. Background Facts & Proceedings.
During the latter part of February 2005, the Linn County Sheriff’s
Department received a report that animals were being neglected on the property
of Olin and Wendy Andrews near Palo, Iowa.
Following an investigation, a
search warrant was issued which allowed law enforcement personnel and
licensed veterinarians to enter the Andrews’ property.
On March 2, 2005, deputies of the Linn County Sheriff’s Department
executed the search warrant at the Andrews’ farm.
The deputies were
accompanied by Howard Mitchell, the animal control officer and cruelty
investigator for the Cedar Valley Humane Society; Dr. Dan Campbell, the chief
staff veterinarian for the Animal Rescue League of Iowa; and Dr. Jennifer Doll, a
veterinarian. Based on their observations at the Andrews’ property, Mitchell, Dr.
Campbell, and Dr. Doll all determined the animals at the property had not
received adequate care. The animals did not have sufficient water and most did
not have sufficient food. The deputies seized horses, goats, sheep, pigs, dogs,
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and cats. 1 The veterinarians prepared reports summarizing their findings after
the animals were removed and forwarded those reports to Linn County.
Linn County subsequently filed a petition for disposition of neglected
livestock, pursuant to Iowa Code section 717.5. The county asked the district
court to determine whether the livestock met the statutory criteria to be
considered neglected livestock and requested the court to assess costs to the
Andrews for the maintenance of the animals.
The Andrews denied the
allegations of the county’s petition.
Following a contested hearing, the district court concluded the animals
were neglected.
The court also determined the animals had been properly
rescued under the applicable law, and ordered the Andrews to pay $7721.26 for
the rescue and maintenance of the animals.
Later, Linn County filed an
application for additional costs stating there were expenses which had not been
included in the original request. Following another hearing, the court ordered the
Andrews to pay an additional $12,504.64 for the care of the rescued animals.
The Andrews have appealed the orders entered by the district court. They
contend the court erred by upholding the seizure of all the livestock taken from
their property, “because some of the animals seized were not at risk and should
not have been taken.” The Andrews also contend the district court erred by
assessing them costs for the care of the livestock because the county failed to
comply with the applicable statutory procedures for rescuing livestock.
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This appeal concerns only the livestock owned by the Andrews. The disposition of the
dogs and cats owned by the Andrews is not at issue in this appeal.
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II. Standard of Review.
Our review is for the correction of errors at law. Iowa R. App. P. 6.4. In a
law action, we are bound by the district court’s findings of fact if they are
supported by substantial evidence. Iowa R. App. P. 6.14(6)(a).
III. Seizure of Animals.
We first address the Andrews’ claim that the district court erred in
upholding the seizure of all the animals taken from their property because there
were animals on their property that were not neglected. The Andrews argue that
animals which showed no signs of neglect should not have been seized. For the
reasons which follow, we affirm the district court on this issue.
Our legislature has enacted laws to protect livestock from neglect. Iowa
Code section 717.2(1) defines animal neglect as follows:
A person who impounds or confines livestock, in any place,
and does any of the following commits the offense of livestock
neglect:
a. Fails to provide livestock with care consistent with
customary animal husbandry practices.
b. Deprives livestock of necessary sustenance.
c. Injures or destroys livestock by any means which causes
pain or suffering in a manner inconsistent with customary animal
husbandry practices.
Animals that have been neglected, as defined by section 717.2(1), may be
rescued by law enforcement officers. Iowa Code § 717.2A(1).
In this case, after carefully considering the evidence presented, the district
court found “[t]he animals rescued pursuant to Chapter 717 were not provided
with care consistent with customary animal husbandry practices and the Andrews
deprived the livestock of necessary sustenance both with respect to feed and
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water, but especially water.”
There is substantial evidence in the record to
support the district court’s findings.
When officers arrived to serve the search warrant, all of the livestock
present on the property were without water.
In addition, all of the livestock,
except the horses, were without food. The testimony of Drs. Campbell and Doll
makes clear that none of the livestock, with the possible exception of one cow,
were being cared for in a manner consistent with customary animal husbandry
practices. The opinions expressed by Drs.Campell and Doll were confirmed by
the testimony of two independent veterinarians who examined some of the
horses shortly after the livestock was seized. The fact that a small percentage of
the horses seized were of adequate body weight does not undermine the district
court’s conclusion the animals were neglected pursuant to chapter 717. Because
the district court’s findings are supported by substantial evidence, we find no
error in the court’s conclusion that the animals were neglected.
IV. Assessed Costs.
The Andrews also contend the district court erred by assessing them the
costs of caring for the livestock because Linn County failed to comply with the
statutory procedures for rescue of livestock found in section 717.2A(1).
The expenses for rescuing and maintaining neglected livestock may be
assessed pursuant to section 717.5(3), which provides:
A court may order a person owning the neglected livestock
to pay an amount which shall not be more than the expenses
incurred in maintaining the neglected livestock rescued pursuant to
section 717.2A, and reasonable attorney fees and expenses related
to the investigation of the case. . . . The moneys shall be paid to
the local authority incurring the expense.
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Under the statutory scheme established by our legislature, law
enforcement officers may rescue neglected livestock under three alternative
provisions found in section 717.2A(1)(c). First, section 717.2A(1)(c)(1) provides
that if a criminal proceeding has not been commenced, the local authority must
obtain a written statement from a veterinarian, provide notice to the owner, and
give the owner the opportunity to respond.
Second, section 717.2A(1)(c)(2)
governs seizure if a criminal proceeding has been commenced, and provides that
the local authority must receive a written statement from a veterinarian. Finally,
section 717.2A(1)(c)(3) provides that livestock may be rescued upon a written
statement from a veterinarian if the livestock have been abandoned or are
“permanently distressed” regardless of whether criminal proceedings have been
commenced.
In this case, the district court properly concluded that the requirements of
the first and third provisions of section 717.2A(1)(c) had not been met. Neither
party disputes this conclusion on appeal. The court then determined Linn County
had properly followed the procedures for rescue of neglected livestock found in
the second provision, section 717.2A(1)(c)(2), which requires:
(1) the
commencement of a criminal proceeding and (2) a written statement given to the
local authority by a licensed veterinarian providing that, in the veterinarian’s
opinion, the livestock is neglected. In concluding that the requirements of section
717.2A(1)(c)(2) had been met, the court noted that a search warrant had been
issued and the matter had been referred to the county attorney.
The court
concluded that it was “clear that the wheels of justice had begun to turn.”
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The Andrews take issue with the court’s conclusion. They claim a criminal
proceeding had not been commenced against them at the time the animals were
seized, and they argue that the provisions of section 717.2A(1)(c)(2) were not
followed by the county. Upon review of the record, we conclude the Andrews’
argument has merit.
In Iowa, criminal proceedings may be commenced by filing a complaint
with a magistrate. Iowa Code § 804.1; State v. Nelson, 390 N.W.2d 589, 591
(Iowa 1986). In determining whether criminal proceedings have commenced, we
consider whether the prosecutorial forces of the state have focused on an
individual, and whether the state has committed itself to prosecute. State v.
Johnson, 318 N.W.2d 417, 435 (Iowa 1982). Criminal proceedings have not
commenced if a case is still in an investigatory stage. See id.
The record in this case reveals that on February 22, 2005, a citizen
provided a voluntary statement and photographs to the Linn County Sheriff’s
Department alleging the Andrews’ animals were being neglected. Based on this
evidence, Deputy Pat Brady made an application for a search warrant. A judge
approved the search warrant application and a warrant was issued. The warrant
was executed on March 2, 2005. At the hearing on the county’s petition for
disposition of neglected livestock, Deputy Brady testified as follows:
Q. At the time that the search warrant was obtained from
Judge Baumgartner, no criminal proceedings had been initiated
against Mr. or Mrs. Andrews, had they? A. Not that I’m aware of,
no.
Q. And no proceedings had been initiated when the seizure
took place on March 2nd, 2005; is that also correct? A. I believe
you’re correct there.
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We conclude criminal proceedings had not commenced at the time law
enforcement officials rescued the livestock from the Andrews’ property. In its
brief on appeal Linn County states, “The State was committed to prosecuting the
Appellants for animal and/or livestock neglect if there was adequate evidence
seized during the execution of the search warrant.” (Emphasis added.) This
statement demonstrates that the execution of the search warrant was part of the
investigatory stage of this case. See id. In addition, it confirms that criminal
proceedings would not be pursued unless the search warrant revealed adequate
evidence of neglect.
As we have mentioned, section 717.2A(1)(c)(2) applies “[i]f a criminal
proceeding has been commenced against the person owning or caring for the
livestock . . . .”
In this case no criminal proceeding had been commenced
against the Andrews at the time the animals were rescued.
Therefore, we
conclude Linn County failed to properly follow the procedures for the rescue of
neglected animals under section 717.2A(1).
We next consider what effect, if any, the County’s failure to follow the
procedures found in section 717.2A(1) has on this case. The Andrews do not
argue that the court lacked authority to make a disposition of the livestock at
issue here based on the county’s failure to comply with one of the three
alternatives for seizure. In City of Dubuque v. Fancher, 590 N.W.2d 493, 496
(Iowa 1999), our supreme court made clear “a challenge to the propriety of the
seizure of neglected animals does not impact the authority of the city to file a
petition for disposition or the jurisdiction of the district court to hear and decide
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the petition.” However, the Fancher case did not resolve the issue of whether a
court may order payment for expenses only in those circumstances where the
animals have been properly seized under controlling statutory authority. Id. at
496 n.1.
This brings us to the final issue we must address. The Andrews contend it
was error for the trial court to asses costs for the care of livestock when Linn
County failed to comply with the rescue procedures found in 717.2A(1)(c). The
county argues that costs may be assessed even if the county did not comply with
the rescue procedures established by the legislature.
While the disposition of neglected livestock is not dependent upon the
proper removal of the animals, a different statutory provision applies to the
assessment of expenses. The disposition of neglected livestock is provided for
in section 717.5(1), and this section does not require that the livestock have been
rescued under section 717.2A. Section 717.5(1) provides for the “disposition of
livestock neglected as provided in section 717.2.” On the other hand, section
717.5(3) provides for the payment of “expenses incurred in maintaining the
neglected livestock rescued pursuant to section 717.2A . . . .” (Emphasis added.)
Thus, section 717.5(3) specifically applies when animals have been rescued
under statutory procedures. Section 717.5(3) does not provide for the payment
of expenses in situations other than when animals have been rescued pursuant
to section 717.2A.
We conclude section 717.5(3) does not provide for the
assessment of costs for the care of neglected livestock that were not rescued
pursuant to the procedures set forth in section 717.2A.
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In this case, the parties agree Linn County did not follow the procedures
for the rescue of animals found in sections 717.2A(1)(c)(1) or (3). We have also
determined the circumstances in this case did not meet the criteria for rescue set
out in section 717.2A(1)(c)(2) because a criminal proceeding had not been
commenced at the time the livestock were seized. Because the procedures of
that statute were not properly followed, we determine the livestock in this case
were not rescued pursuant to section 717.2A. In this situation, section 717.5(3)
does not provide for the payment of expenses. Accordingly, we conclude the
district court erred in requiring the Andrews to pay the expenses of maintenance
of the animals based on this section.
In its brief on appeal, Linn County asserts, “[e]ven if the Court finds that
costs cannot be assessed pursuant to Iowa Code section 717.5, nothing prohibits
the District Court from assessing costs for maintenance of livestock seized in this
manner under principles of fairness and equity.” The record reveals this issue
was not presented to or decided by the district court. Accordingly, we conclude it
has not been preserved for our review. See Meier v. Senecaut, 641 N.W.2d 532,
537 (Iowa 2002).
V. Conclusion.
We conclude the district court should be affirmed in its finding that the
livestock which were rescued were neglected under Iowa law. We also affirm the
district court’s determination that all of the animals that were rescued were
subject to disposition under section 717.5(1). We conclude, however, that under
the specific statutory language of section 717.5(3), the district court could not
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assess expenses for the maintenance of the animals because they had not been
properly rescued under section 717.2A(1).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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