Lamare v. North Country Animal League

Lamare v. North Country Animal League  (98-258); 170 Vt. 115; 743 A.2d 598

[Filed 12-Nov-1999]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as  formal revision before publication in the Vermont
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  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
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                                 No. 98-258


Chasidy Lamare and Charles Arnold 	Supreme Court
	                                On Appeal from
     v.		                        Lamoille Superior Court

North Country Animal League,	        March Term, 1999
Darcie Fitzgerald, and John and
Jane Doe


Alan W. Cook, J.

Clarke D. Atwell, Law Office of Robert A. Gensburg, St. Johnsbury, for
  Plaintiffs-Appellants.

Jeff W. Lively of Olson & Associates, Stowe, for Defendants-Appellees.

Beth Robinson of Langrock Sperry & Wool, Middlebury, and Roger A.
  Kindler and Paul J. Tanis, Washington, D.C., for Amici Curiae The Humane
  Society of the  United States, et al.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       MORSE, J.   Plaintiffs Chasidy Lamare and Charles Arnold appeal a
  summary judgment  of the Lamoille Superior Court in favor of defendants
  North Country Animal League, Darcie  Fitzgerald, and John and Jane Doe. 
  Plaintiffs raise numerous claims challenging the court's  ruling that their
  possessory interest in a lost dog had been transferred to defendants under
  the  Town of Wolcott's dog control ordinance.   We affirm. 

       The following facts are undisputed.  Plaintiffs were the co-owners of
  a five and one-half  year old female German Shepard named Billy.  They
  acquired the dog as a puppy and registered  it with the American Kennel
  Club.  On June 3, 1997, Billy and her five-month-old puppy broke 

 

  free from their tether at plaintiffs' residence in Wolcott.  Although
  licensed with the Town of  Wolcott, Billy was not wearing her license tags
  at the time of her escape.  The puppy returned  several hours later.  When
  Billy failed to return, plaintiffs contacted their neighbors, friends, and 
  family with the hope that she had gone to someone's home.  During the next
  month, plaintiffs  continued to search for Billy when they had time, but
  her continued absence caused them to  speculate that she had been injured,
  killed, or stolen.

       In fact, Billy was found several hours after her escape, running on
  the road, by a couple  who brought her to Lamoille Kennel.  An employee of
  Lamoille Kennel notified Gilbert Goff,  the Wolcott animal control officer. 
  Goff assumed control and custody of the dog under the  Wolcott dog control
  ordinance.  

       As required by the ordinance, Goff placed notices describing the dog
  in the village store,  post office, and town clerk's office.  After holding
  Billy for nine days from the date of  impoundment without any response to
  the notices, Goff transferred Billy into the care and  custody of defendant
  North Country Animal League, where Billy remained for approximately  three
  weeks.

       On Sunday, July 6, plaintiff Arnold's mother contacted Goff, who told
  her that he had  placed a dog in the League's custody.  Plaintiffs called
  the League that day and left a message on  the answering machine concerning
  their lost dog.  On Monday, July 7, plaintiffs again contacted  the League
  and were told that it still had the dog in its possession.  Plaintiffs
  arrived at the  League shortly thereafter and identified the dog.  They
  asked that the dog be returned, provided  American Kennel Club papers to
  prove ownership, and offered to pay all boarding costs.  A  League
  employee, defendant Darcy Fitzgerald, told them that the dog belonged to
  the 

 

  League and that the only way to gain possession was to fill out an adoption
  application.   Plaintiffs immediately completed the application, but were
  told that their personal references had  to be contacted.  Two days later,
  plaintiffs called the League to inquire about the status of their  adoption
  application.  A League employee informed plaintiffs that their application
  had been  denied.  When plaintiffs questioned the reason for the denial,
  they were told that it was not in the  dog's best interests to be returned
  to them.  Plaintiffs later learned that, in fact, the League had  approved
  "Jane and John Doe's" adoption of Billy on July 5, prior to plaintiffs'
  application.   Billy was spayed on July 8 and adopted by the Doe family
  that same day.  None of the  references listed in plaintiffs' application
  was ever contacted.    

       Plaintiffs then filed this action to recover their dog from the Does
  and for damages from  the League for violation of their due process rights
  guaranteed by the United States Constitution.  When defendants refused to
  disclose the identity of the Does through interrogatories, plaintiffs 
  moved to compel disclosure.  Defendants, in response, moved for a
  protective order to protect  the Does' identity.  After a hearing, the
  court denied plaintiffs' motion to compel.  

       The parties subsequently filed cross-motions for summary judgment. The
  court granted  defendants' motion and denied plaintiffs', concluding that
  under Morgan v. Kroupa, 167 Vt. 99,  104, 702 A.2d 630, 633 (1997), the
  animal control officer had made reasonable efforts to locate  the dog's
  owner by complying with the Town's dog control ordinance, and that
  plaintiffs had  failed to satisfy their requirement of conscientiously
  searching for the dog.  The court further  concluded that when the animal
  control officer gave the dog to the League, plaintiffs' property  rights
  were extinguished and the League became the rightful owner of the dog. 
  Finally, the  court ruled that plaintiffs could not challenge the validity
  of the animal control ordinance because 

 

  they had failed to name the Town as a party to the action.  This appeal
  followed.

       Although variously stated, plaintiffs essentially contend the court
  erred in: (1) applying  Morgan instead of the lost property statutes, see
  27 V.S.A. §§ 1101-1110; (2) declining to  address the validity of the
  Town's animal control ordinance; (3) failing to find that the ordinance 
  was invalid under state law and the United States Constitution; and (4)
  refusing to order  disclosure of the Does' identities.

                                     I.

       In Morgan, we held that when the finder of a lost dog makes a
  reasonable effort to locate  the owner and responsibly cares for the animal
  over a reasonably extensive period of time, the  finder may be awarded
  possession of the dog.  See 167 Vt. at 104, 702 A.2d  at 633.  We noted 
  several factors that the court should consider in making this discretionary
  decision, including the  reasonableness of the search efforts by both the
  owner and the finder, and the length of time that  the finder responsibly
  cared for the dog.  

       Morgan involved a dispute between private parties and was governed by
  common law  principles.  This case, in contrast, concerns the rights and
  responsibilities of a public entity vis a  vis the owners of a lost dog and
  is controlled by state statutes and local ordinances.  Thus, the  trial
  court's task here was confined to interpreting and applying the pertinent
  legislative  enactments and determining their validity.  The trial court's
  application of Morgan was therefore  inapposite, but as we reach the same
  result on different grounds we need not reverse the  judgment.  See Putter
  v. Montpelier Pub. Sch. Sys., 166 Vt. 463, 471, 697 A.2d 354, 359  (1997)
  (we may affirm correct judgment even though grounds for it are erroneous). 

       The Wolcott dog control ordinance provides:
 



   If the owner of the dog is unknown, the officer shall, within forty-
   eight (48) hours of impoundment, post an advertisement in the 
   Town Clerk's Office and at least one public place in the Town.  
   Said notice shall describe the dog, state when and where the dog 
   was impounded and declare that unless the owner or person 
   entitled to possession of the dog shall claim the same and pay all 
   charges set forth below within seven (7) days after posting of such 
   notice, the dog office shall sell the dog, give the dog away or 
   dispose of it in a humane way. 


  Town of Wolcott Dog Control Ordinance, § 7(C).

       The record evidence supports the trial court's conclusion that the
  local animal control  officer complied with the notice requirements of the
  ordinance, and properly transferred  ownership of the dog to the League
  under its provisions.  Indeed, plaintiffs do not challenge  these findings,
  but instead contend that the ordinance was invalid because it was not
  authorized  by State statute and violated their constitutional right to due
  process.  The trial court declined to  address these claims, ruling that
  they were not cognizable because plaintiffs had failed to name  the Town as
  a party defendant. The first issue, therefore, concerns the soundness of
  this ruling. 

       In any proceeding for declaratory relief that involves the validity of
  a municipal  ordinance, the municipality "shall be made a party and shall
  be entitled to be heard."  12 V.S.A.  § 4721.  If the ordinance is alleged
  to be unconstitutional, the Attorney General is also entitled to  be served
  and heard.  See id.  Although plaintiffs' complaint in this case was not
  specifically  denominated an action for declaratory judgment, the statute
  unquestionably applied because the  validity of the ordinance was raised at
  trial, briefed, and argued by the parties.  See V.R.C.P.  15(b) (when
  issues not raised by pleadings are tried by express or implied consent of
  parties,  they shall be treated in all respects as if they had been raised
  by pleadings). 

 

       Section 4721 essentially makes the town whose ordinance is at issue a
  "necessary" party,  that is, one whose interest in the subject matter of
  the action is such that its disposition may  "impair or impede [its]
  ability to protect that interest."  V.R.C.P. 19(a); see also Price v. 
  Leland, 149 Vt. 518, 520-21, 546 A.2d 793, 795 (1988) (holding that town
  was not necessary  party to the proceeding under 12 V.S.A. § 4721 because
  it did not have "cognizable interest" in  outcome).  As the Reporter's
  Notes to Rule 19 explain, if a necessary party "has not been joined  and
  can be served with process, the court, on defendant's motion  .  .  .  or
  on its own motion,  must order him joined."  Reporter's Notes, V.R.C.P. 19.  

       Having correctly determined that the Town was a necessary party under
  § 4721, the court  should have ordered that it be joined rather than simply
  decline to address the issues raised by  plaintiffs.  The trial court's
  oversight, however, does not necessarily require that the judgment be 
  reversed.  When joinder of a necessary party is not feasible, a trial court
  may nevertheless  proceed if a judgment can be rendered that is not
  prejudicial to the absent party, or if -- through  the shaping of relief --
  the prejudice may be "lessened or avoided."  V.R.C.P. 19(b); see also 
  Grassy Brook Village, Inc. v. Blazej, Inc., 140 Vt. 477, 481, 439 A.2d 273,
  275-76 (1981).  This Court, similarly, may consider the merits of a
  judgment that is technically not ripe for  review when dismissal would only
  result in another appeal, the merits of the question have been  fully
  briefed, and the Court has reviewed the case.  See Perry v. Vermont Med.
  Practice Bd.,  ___ Vt. ___, ___, 737 A.2d 900, 902 (1999).

       Considering these factors, we conclude that it is equitable and
  expedient for the Court to  address the merits of plaintiffs' claims
  notwithstanding the trial court's failure to order joinder of  the Town and
  consider the claims in the first instance.  A remand would undoubtedly
  result 

 

  in a second appeal, the issues have been fully briefed and argued, and the
  Court has carefully  considered their merits.  Nor does the Town stand to
  be prejudiced by our consideration of the  claims; defendant North Country
  Animal League has zealously defended the ordinance in  question, ably
  supported by an amicus curiae brief on behalf of The Humane Society of the 
  United States and various local humane societies.  

                                     II.

       Plaintiffs first contend that the Town did not have the authority
  under state law to transfer  possession of Billy to the League.  We have
  consistently adhered to the rule that "a municipality  has only those
  powers and functions expressly granted to it by the Legislature, such
  additional  functions as may be incident, subordinate or necessary to the
  exercise thereof, and such powers  as are essential to the declared objects
  and purposes of the municipality." Robes v. Town of  Hartford, 161 Vt. 187,
  190, 636 A.2d 342, 345 (1993).  If any fair, reasonable, or substantial 
  doubt exists concerning the municipality's authority, we resolve it against
  the municipality.  See  id.  Plaintiffs here note that under 20 V.S.A. §
  3549 towns are authorized only to "regulate the  keeping of domestic pets
  or wolf-hybrids and their running at large."  They assert that this does 
  not include the power, as provided in the Town's ordinance, to "sell the
  dog, give the dog away  or dispose of it in a humane way."

       There is no dispute that the statute authorizing towns to regulate the
  running at large of  domestic pets empowered the Town to take possession of
  Billy when she was found running on  the road unattended and without
  license tags.  Yet, plaintiffs argue that once having taken  possession,
  the Town lacked the corollary authority to transfer possession of the dog
  and  responsibility for its upkeep to the League after the requisite
  seven-day redemption period had 

 

  passed.  The argument is unpersuasive. The Town must have the ability to
  make some humane  disposition of the animal after a certain period of
  impoundment has expired.  Plaintiffs' narrow  construction of the statute
  would effectively compel the Town to care for impounded domestic  animals
  in perpetuity if the rightful owner never came forward, a result plainly at
  odds with  reason and sound policy.  See Roddy v. Roddy, ___ Vt. ___, ___,
  721 A.2d 124, 1128 (1998)  (we must construe statutes to avoid absurd
  results unintended by Legislature).  We conclude,  therefore, that the
  provision of the ordinance authorizing the Town to sell or otherwise
  dispose  of the animal in a humane fashion constituted a necessary and
  essential power under the enabling  statute, and therefore did not exceed
  the Town's authority.  See Robes, 161 Vt. at 190, 636 A.2d   at 345.  

                                    III.

       Plaintiffs next assert that the ordinance violated their due process
  rights by depriving  them of property without adequate notice and an
  opportunity to be heard.  In Town of Randolph  v. Estate of White, 166 Vt.
  280, 285, 693 A.2d 694, 697 (1997), we noted that "due process  concerns
  arise whenever the state deprives an individual of an interest in the use
  of real or  personal property."  The process that must be afforded,
  however, varies depending upon the  context.  "By its nature, due process
  comprehends a wide range of procedural protections  tailored to myriad
  situations of state action affecting protected interests." Lucas v. Hahn,
  162 Vt.  456, 459, 648 A.2d 839, 842 (1994).  In determining whether a
  given procedure satisfies due  process, we have applied the factors set
  forth by the United States Supreme Court in Mathews v.  Eldridge, 424 U.S. 319, 335 (1976).  These are: (1) the private interest affected by the state 
  action; (2) the risk of erroneous deprivation of the affected private
  interest under the 

 

  procedures used; and (3) the governmental interest involved, including
  fiscal and administrative  burdens.  See Town of Randolph, 166 Vt. at 284,
  693 A.2d. at 696.   

       The private interest at stake in this matter is a qualified one.  In
  Nicchia v. New York,  254 U.S. 228, 230 (1920), the United States Supreme
  Court observed that "[p]roperty in dogs is  of an imperfect or qualified
  nature and they may be subjected to peculiar and drastic police 
  regulations by the State without depriving their owners of any federal
  right."  This Court has  similarly noted that dogs "belong to that class of
  property the keeping of which may be  stringently regulated by the
  Legislature in the exercise of its police power -- even to the extent of 
  providing for their destruction, in given circumstances, without judicial
  proceedings, and in a  most summary way."  McDerment v. Taft, 83 Vt. 249,
  250, 75 A. 276, 276 (1910).

       We have recently reaffirmed the principle that "`property' in domestic
  pets is of a highly  qualified nature, possession of which may be subject
  to limitation and control."  Morgan, 167  Vt. at 104, 702 A.2d  at 634.  As
  we noted in Morgan, state law provides that an animal shall be  deemed
  abandoned if placed in the custody of a veterinarian, kennel or other
  establishment for  treatment, board, or care for a specified period of
  time.  See id. (citing 20 V.S.A. § 3511).   Domestic pets suspected of
  having been exposed to rabies may be confined or impounded, see 20  V.S.A.
  § 3806, or even killed if reasonably necessary, see id. § 3807(a), and
  "vicious" domestic  pets may be removed from the owner and "disposed of in
  a humane way."  Id. § 3546(c). 

       Morgan discussed the important public interests that justify the
  stringent regulation of  stray dogs and other domestic animals.  "A stray
  dog obviously requires care and shelter, and  left unattended could pose
  hazards to traffic, spread rabies, or exacerbate an animal 

 

  overpopulation problem if unneutered."  Morgan, 167 Vt. at 103, 702 A.2d  at
  633.  At the same  time, Morgan recognized that a dog is an inherently
  social creature whose "value derives from  the animal's relationship with
  its human companions."  Id.  Thus, while municipal shelters or  pounds may
  provide temporary safety for the public and security for the animal,
  longterm  residence in such facilities is decidedly not in the public's or
  the animal's interest.  We note in  this regard the several studies cited
  in the amicus curiae brief of The United States Humane  Society which
  demonstrate that longterm confinement is severely detrimental to the health
  of  dogs and a considerable expense to the impounding agency.       

       The qualified right to possession of dogs and other animals, and the
  strong public interest  in assuring their permanent placement in a suitable
  environment, amply supports the Town's  decision to provide for the sale or
  transfer of impounded dogs if unclaimed after seven days.  Indeed, courts
  elsewhere have uniformly upheld local ordinances authorizing the
  destruction or  transfer of possessory rights in stray animals impounded
  for less than one week.  See, e.g.,  Thiele v. City and County of Denver,
  312 P.2d 786, 792 (Colo. 1957) (rejecting due process  challenge to
  ordinance providing for disposal of impounded dogs after three days);
  Johnston v.  Atlanta Humane Soc., 326 S.E.2d 585, 587 (Ga. Ct. App. 1985)
  (in view of "overriding public  policy," ordinance providing for disposal
  of impounded dog after three days did not constitute  unconstitutional
  taking of property); Professional Houndsmen of Miss., Inc. v. County of
  Boone,  836 S.W.2d 17, 21-22 (Mo. Ct. App. 1992) (rejecting due process
  challenge to ordinance  authorizing disposition of impounded dog after five
  days); Jenkins v. City of Waxahachie, 392 S.W.2d 482, 484 (Tex. Civ. App.
  1965) (rejecting constitutional challenge to ordinance  providing for
  destruction or other disposition of impounded dog if not claimed within
  seventy-

 

  two hours). These and other decisions have also rejected due process
  challenges to notice  provisions far less rigorous than those at issue
  here.  See Thiele, 312 P.2d  at 792 (upholding as  "reasonable and adequate"
  ordinance provision requiring posting of dog's description at  municipal
  pound); Waxahachie, 392 S.W.2d  at 484 (rejecting due process challenge
  where  ordinance contained no notice or hearing requirements); City of
  Water Valley v. Trusty, 343 So. 2d 471, 472 (Miss. 1977) (rejecting due
  process challenge to ordinance providing for disposition  of impounded dog
  after five days posted notice).  These decisions are consistent with our 
  conclusion in Morgan, albeit in a different context, that the owner of a
  lost dog may be expected  to make reasonable efforts to locate an animal by
  contacting humane societies and other agencies  and checking other public
  locations where notices may be posted.  As we recently held in  Agency of
  Natural Resources v. Irish, 10 Vt. L. Wk. 182, 183 (1999), due-process
  notice  standards may validly take into account the expectation and
  likelihood that owners will make  reasonable efforts to protect their
  property interests.  

	
       These common sense requirements, together with the Town's additional
  ordinances  requiring that owners provide their dogs with license tags, and
  that the dog control officer  directly contact the owner of an impounded
  dog if the identity is known, establish that the risks  of an erroneous
  deprivation under the ordinance are small.  Only in the limited
  circumstances  where the owner of a lost dog has not complied with the
  license requirements, and has failed to  take the reasonable steps of
  inquiring with the local pound or checking notices in the town office  and
  other public places, is it possible that an owner will fail to receive
  notice within the seven-day notice period.  The fact that plaintiffs in
  this case did not take these reasonable steps does not  render the
  ordinance unconstitutional.      

 

       We conclude, in sum, that the Town's posting of descriptive notices in
  the Town clerk's  office, post office, and village store -- in conformity
  with the ordinance -- did not deprive  plaintiffs of their constitutional
  right to due process.  
	
       Finally, we note that plaintiffs' reliance on Porter v. DiBlasio, 93 F.3d 301 (7th Cir.  1996) is misplaced.  Porter held that the owner of
  horses seized because of neglect was entitled  to a hearing prior to the
  permanent termination of the owner's interest in the seized animals.   The
  circumstances here, involving a stray animal with no license tags or other
  identification, are  plainly distinguishable.   

                                     IV.

       Plaintiffs raise two additional claims that require little discussion. 
  They contend that the  trial court erred in failing to apply the notice
  requirements of the lost property statutes, under 27  V.S.A. §§ 1101-1110. 
  Inasmuch as we held that these statutes did not apply to lost dogs in 
  Morgan, 167 Vt. at 102-103, 702 A.2d  at 632-33, there was plainly no error. 

       Plaintiffs also contend that the court erred in denying their motion
  to compel disclosure  of the Doe defendants' identity.  Discovery rulings
  are within the sound discretion of the trial  court and will not be
  disturbed on appeal absent a clear abuse or withholding of that discretion.  
  See Medical Center Hosp. of Vt., Inc. v. City of Burlington, 152 Vt. 611,
  627, 566 A.2d 1352,  1369 (1989).  The trial court ruled that plaintiffs
  had made no showing that the Does' identity  was relevant, and plaintiffs
  have not demonstrated relevance on appeal.  Moreover, absent  compelling
  reasons for disclosure, we agree with the court's conclusion in Johnston,
  326 S.E.2d   at 588, that disclosure of the identity of the adopter "could
  lead to harassment and limit or 

 

  curtail adoption so as to lead to the less desirable alternative of
  destruction."  Accordingly, we  find no error in the court's ruling.

                                     V.

       Any case involving possession of a domestic pet predictably arouses
  broad public interest  and concern.  The actions of the League in this case
  certainly warrant such concern; it was, to  say the least, insensitive in
  its dealings with plaintiffs.  Although plaintiffs' action for 
  repossession of the dog and for damages based upon alleged constitutional
  violations lack merit,  this is not to say that a future case seeking
  recovery for the emotional distress or other damages  resulting from the
  negligent handling of an impounded animal -- a claim not alleged here -- 
  would be unsuccessful.  In this case, we are bound to conclude that the
  Town's actions fully  complied with its animal control ordinance and that
  its ordinance provided ample notice to  plaintiffs consistent with state
  law and due process requirements.  

       Affirmed. 

	FOR THE COURT:



	_______________________________________
	Associate Justice