Hegarty v. Addison County Humane Society

Hegarty v. Addison County Humane Society (2002-385); 176 Vt. 405;
848 A.2d 1139

2004 VT 33

[Filed 02-Apr-2004]


       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
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2004 VT 33

                                No. 2002-385


  Suzanne and Elizabeth Hegarty	                 Supreme Court

                                                 On Appeal from
       v.	                                 Addison Superior Court

  Addison County Humane Society	                 November Term, 2003


  Matthew I. Katz, J.

  Peter F. Langrock of Langrock Sperry & Wool, LLP, Middlebury, for
    Plaintiffs-Appellants.

  Jeff W. Lively, Stowe, for Defendant-Appellee.

  William H. Sorrell, Attorney General, Montpelier, and Diane E. Zamos,
    Assistant Attorney General, Waterbury, for Amicus Curiae.


  PRESENT:  Amestoy, C.J., Johnson and Skoglund, JJ., and Allen, C.J. (Ret.)
            and Gibson, J. (Ret.),  Specially Assigned	

       ¶  1.  SKOGLUND, J.   On suspicion of inadequate care, defendant
  Addison County Humane Society (ACHS) seized Suzanne and Elizabeth Hegarty's
  elderly mare, Paka.  The Hegartys sued ACHS in Addison Superior Court
  alleging claims for conversion and intentional infliction of emotional
  distress.  The superior court granted ACHS's motion for summary judgment
  and the Hegartys appealed.  Because ACHS followed the constitutionally
  sound procedures outlined in Vermont's animal cruelty statutes, we affirm.
   
       ¶  2.  After receiving complaints from neighbors, ACHS's humane
  officer Paul Meacham began to investigate Paka's health and the adequacy of
  her care.  On several occasions in late July 2000, Meacham went by the
  Hegartys' pasture to assess the horse's condition.  Seeing no apparent
  signs that Paka was receiving food or water, on August 16, 2000, Meacham
  contacted the Hegartys to discuss the issue.  Meacham conveyed his concerns
  about Paka's health to Suzanne Hegarty and suggested corrective actions. 
  Suzanne Hegarty responded that she adequately fed and provided for her
  horses and that they received veterinary care.  Meacham told Suzanne
  Hegarty that he would be sending a veterinarian to check Paka.  She advised
  Meacham not to return to her property.  

       ¶  3.  Later that day, Meacham called the ACHS veterinarian Dr. Hunt
  and asked him to go to the Hegartys' property and assess Paka's health. 
  The next day, Dr. Hunt sent ACHS a report stating that, in his opinion,
  Paka was in an emaciated condition and was either sick, had poor teeth, or
  was receiving an inadequate diet.  Meacham then contacted State's Attorney
  John Quinn to discuss the case and Paka's potential removal.  Attorney
  Quinn advised ACHS to move forward using the procedure outlined in
  Vermont's animal cruelty statutes.  

       ¶  4.  On August 18, 2000, Meacham went to the Hegartys' home and
  seized Paka.  The horse received immediate veterinary care and treatment
  while in ACHS's custody.  Attorney Quinn later advised ACHS to return Paka
  to the Hegartys.  Paka was returned on approximately August 30, 2000,
  twelve days after the horse was seized.   
   
       ¶  5.  That same day the Hegartys filed a complaint in Addison
  Superior Court alleging that ACHS unlawfully removed their "geriatric mare"
  and asserting claims for conversion and intentional infliction of emotional
  distress.  After initial discovery, ACHS moved for summary judgment on
  grounds that it was authorized to seize Paka pursuant to Vermont's animal
  cruelty statutes, 13 V.S.A. §§ 351-354.  The Hegartys opposed the motion,
  arguing that the material facts supported their conversion claim and that
  the pertinent portions of the animal cruelty statutes were unconstitutional
  under both the federal and state constitutions.

       ¶  6.  The trial court granted ACHS's summary judgment motion on
  grounds that because ACHS had "a good faith belief that the horse was in
  distress," the seizure was lawful.  The court also held that the Hegartys'
  property right in "twelve days' possession of an old, blind, sick horse"
  was de minimis and thus did not trigger due process protection.  The
  Hegartys appealed. (FN1)  

       ¶  7.  On appeal, the Hegartys contest the trial court's denial of
  their conversion claim on two grounds.  First, they assert that the trial
  court erred when it relied on Morgan v. Kroupa to characterize Paka as a
  pet and thus not subject to a conversion claim.  167 Vt. 99, 103-05, 702 A.2d 630, 633-34 (1997).  We agree.
    
       ¶  8.  The trial court correctly cited Morgan for the proposition
  that, in the context of a conversion claim, the property interest in pets
  is of such a highly qualified nature that it may be limited by overriding
  public interests.  Id. at 105, 702 A.2d  at 634.  We do not quarrel with
  this analysis, but rather with the court's suggestion that our Morgan
  ruling supports characterizing Paka as a pet.  In Morgan, we explicitly
  distinguished between pets - dogs, cats, and hamsters - and "agricultural
  animals with substantial economic value."  Id.  The fact that a horse may
  also be considered a pet by its owner does not remove it from the category
  of agricultural animal with respect to the property interests at issue in a
  conversion claim.  Id.  Paka is not a pet and the trial court's ruling to
  the contrary was in error.
   
       ¶  9.  Second, the Hegartys insist that the trial court erred
  because the material facts support their conversion claim.  A conversion is
  either the unlawful "appropriation of the property to the party's own use
  and beneficial enjoyment, . . . or in exercising dominion over it in
  exclusion and defiance of the owner's right, or in withholding possession
  from the owner under a claim of title inconsistent with his title." 
  Economou v. Carpenter, 124 Vt. 451, 453-54, 207 A.2d 241, 243 (1965)
  (internal citations omitted).  The Hegartys argue that when ACHS seized
  Paka it unlawfully withheld possession of their property in exclusion and
  defiance of their right and the court should have found a conversion as a
  matter of law.  There is no dispute that the Hegartys are Paka's rightful
  owners or that, by seizing the horse, ACHS was withholding possession of
  Paka from them.  The question is whether that deprivation was lawful.

       ¶  10.  ACHS insists that it acted under the authority granted by 13
  V.S.A. § 354(b)(3) when it seized Paka without a warrant.  Section
  354(b)(3) states that if a humane officer witnesses a situation in which
  immediate action is required to protect an animal's health and safety, the
  officer may seize the animal without a warrant. (FN2)  The trial court
  found that Meacham had a good faith belief that Paka was in imminent danger
  and thus was authorized to conduct a warrantless seizure.  
   
       ¶  11.  The uncontroverted facts evidence the following.  Meacham
  made numerous trips to Paka's pasture to evaluate her health and care and
  observed what he determined was inadequate compliance with feeding and
  shelter requirements.  He then contacted the Hegartys to discuss rectifying
  the problem.  They denied there was a problem and advised Meacham not to
  return to their property.  Meacham then went beyond the statutory
  requirements and employed a licensed veterinarian to assess the horse's
  health.  Once the veterinarian confirmed Paka's deteriorating condition,
  Meacham went even one step further and contacted the State's Attorney to
  discuss his authority to seize the animal.  He then seized the animal and
  immediately took Paka to a licensed veterinarian for treatment.  Finally,
  ACHS returned the animal to the Hegartys as soon as the State's Attorney
  told ACHS to do so. 

       ¶  12.  The statute explicitly empowers ACHS to seize an animal when
  the humane officer determines it is necessary to protect its health or
  safety.  The undisputed facts indicate that Meacham reasonably believed
  that Paka's health was in jeopardy and that immediate action was required
  to protect her.  In doing so, Meacham followed the statutory procedures
  during and after the seizure.  ACHS lawfully seized Paka and thus cannot be
  held liable for conversion.  We agree with the Hegartys that humane
  officers should, whenever possible, obtain a warrant prior to seizing an
  animal; but, when the circumstances demand it and the statutory procedures
  are followed, humane officers have the authority to seize animals without a
  warrant.
   
       ¶  13.  The Hegartys next assert a facial challenge to 13 V.S.A. §
  354(b)(3)'s authorization of warrantless searches arguing that it is per se
  unconstitutional.  Relying on Lesher v. Reed, 12 F.3d 148, 150-51 (8th Cir
  1994), they insist that the statute's failure to require a warrant makes
  the seizure unreasonable and thus a violation of their rights under both
  the federal and state constitutions. (FN3)  A warrantless seizure is per se
  unreasonable unless justified by a few delineated exceptions to the warrant
  requirement.  Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971);
  Lesher, 12 F.3d  at 151.  Exigent circumstances are a well-established
  exception to the warrant requirement, Coolidge, 403 U.S.  at 454-55, even in
  cases involving the seizure of animals.  Siebert v. Severino, 256 F.3d 648,
  657 (7th Cir. 2001) ("Exigent circumstances may justify a warrantless
  seizure of animals.").  Section 354(b)(3) permits warrantless seizures only
  when the facts present exigent circumstances; not until a humane officer
  witnesses a situation in which he determines that immediate action is
  required to protect the animal's health and safety may he engage in a
  warrantless seizure.  Of course, each case should be evaluated individually
  and the determination of exigency must be closely examined, but we cannot
  agree that § 354(b)(3) is unconstitutional simply because it permits
  warrantless seizures.

       ¶  14.  The Hegartys next assert that § 354(b)(3) violates their
  constitutional right to due process by permitting ACHS to seize their horse
  without a meaningful opportunity to be heard prior to the seizure.  The
  trial court concluded that "the property right in question - twelve days'
  possession of an old, blind, sick horse - is too insubstantial to trigger
  the Due Process clause."  Finding their property interest de minimis, the
  court ruled that the Hegartys' due process claim failed as a matter of law.
   
       ¶  15.  To evaluate their due process claim, we must first determine
  whether the Hegartys were deprived of a constitutionally protected interest
  in life, liberty, or property.  Logan v. Zimmerman Brush Co., 455 U.S. 422,
  428 (1982).  Due process protections "apply only to the deprivation of
  interests encompassed by the Fourteenth Amendment's protection of . . .
  property," the range of which is not infinite.  Board of Regents v. Roth,
  408 U.S. 564, 569-70 (1972).  "[W]e must look not to the weight but to the
  nature of the interest at stake," and the Court has "made clear that the
  property interests protected by procedural due process extend well beyond
  actual ownership of real estate, chattels, or money."  Id. at 571-72
  (emphasis in original omitted).  Property interests do not arise out of the
  Constitution, but "[r]ather they are created and their dimensions are
  defined by existing rules or understandings that stem from an independent
  source such as state law."  Id. at 577.
   
       ¶  16.  The notion that the Hegartys' property interest in their
  horse is a constitutionally protected one follows logically from statutes
  and our prior case law in which we have consistently included horses in the
  group of agricultural animals or livestock routinely treated as personal
  property.  See 9 V.S.A. § 2481(6) (in chapter governing agricultural
  finance leases, "leased property" and "property" are defined as "personal
  property . . . including goods, livestock, equipment and machinery" among
  other things); 13 V.S.A. § 351(11) (defining livestock as including
  horses); Howard v. Howard, 122 Vt. 27, 30, 163 A.2d 861, 864 (1960) (in a
  paternity and contract action, the Court included horses and cattle in list
  of personal property considered sufficient consideration in the settlement
  agreement at issue); Swanton Savings Bank & Trust Co. v. Tremblay, 113 Vt.
  530, 535-36, 37 A.2d 381, 382-84 (1944) (in ruling on conversion of
  mortgaged chattels in foreclosure process, Court treated horses and cattle
  as personal property); Pond v. Baker, 58 Vt. 293, 299-302, 2 A. 164, 166
  (1885) (including horses in list of livestock and other property attached
  to satisfy debt).  When we examine the nature of the interest at stake in
  the context of our state law, it is evident that horses, be they
  thoroughbred studs or geriatric mares, are treated as valuable and
  constitutionally protected personal property.  Furthermore, "[y]ou don't
  throw a whole life away just [be]cause it's banged up a little."  Gary
  Ross, Seabiscuit: The Screenplay 61 (Ballantine Books 2003).  We cannot
  agree therefore that twelve days' possession of an elderly horse is de
  minimis.  The Hegartys' property interest in Paka was significant enough to
  trigger due process protection and the trial court's ruling to the contrary
  was erroneous as a matter of law.  

       ¶  17.  Even though we find that the Hegartys' property interest in
  Paka was constitutionally protected, we uphold the trial court's ruling
  that the Hegartys were not denied due process because under these
  circumstances, the degree of their deprivation was not serious, the
  procedures underlying the deprivation adequately address the potential for
  errors, and they could have requested a post-deprivation hearing under
  V.R.Cr.P. 41(e).

       ¶  18.  "[D]ue process concerns arise whenever the state deprives an
  individual of an interest in the use of real or personal property."  Town
  of Randolph v. Estate of White, 166 Vt. 280, 285, 693 A.2d 694, 697 (1997).
  (FN4)   Once such a deprivation is established, we must determine what
  process the complainant is due.  Logan, 455 U.S.  at 428.  The presumption
  is that an individual is entitled to notice and an opportunity to be heard
  prior to deprivation of a property interest.  See id. at 433-34.  A
  predeprivation hearing is not required in all cases however.  A
  post-deprivation hearing will satisfy due process when the circumstances
  necessitate quick action, see id. at 436, the length and severity of the
  deprivation is not serious, and the procedures underlying the decision to
  effect the deprivation sufficiently minimize the risk of an erroneous
  deprivation.  See Memphis Light, Gas, & Water Div. v. Craft, 436 U.S. 1, 19
  (1978); Mathews v. Eldridge, 424 U.S. 319, 339-49 (1976).
    
       ¶  19.  Each of these factors leads us to conclude that the Hegartys
  were not denied due process.  As examined above, 13 V.S.A. § 354(b)(3)
  permits a warrantless seizure only when exigent circumstances require quick
  action.  In this case, Meacham investigated Paka's health and confirmed his
  suspicions of inadequate care with a licensed veterinarian.  When the
  Hegartys refused to cooperate to improve Paka's care, Meacham was forced to
  act quickly to prevent further suspected mistreatment. 
   
       ¶  20.  Finally, the procedures underlying the decision to seize the
  horse are sufficiently reliable to minimize the risk of error.  The statute
  is a narrow one which permits warrantless seizures only in the unusual
  situations where the humane officer makes a reasonable determination that
  an animal's life is in jeopardy and immediate action is required.  But,
  this statute must be viewed in the larger context of the criminal rules and
  procedures operable in criminal cases like this one.  V.R.Cr.P. 41(e)
  provides a remedy for alleged victims of unlawful warrantless seizures of
  property. (FN5)  Paka was seized as part of a criminal investigation into
  suspected animal cruelty and, as such, the Hegartys could have requested a
  V.R.Cr.P. 41(e) hearing to contest the warrantless seizure and to obtain a
  judicial determination of whether they were entitled to possession of the
  horse pending the conclusion of the prosecutorial process.  See V.R.Cr. P.
  41(e).  This remedy was available to the Hegartys at any time during the
  twelve-day criminal investigation and the fact that no criminal charges
  were filed did not preclude them from filing a Rule 41(e) motion and
  thereby obtaining the due process they insist they were denied.  See State
  v. Kornell, 169 Vt. 637, 638, 741 A.2d 290, 291 (1999) (mem.) (holding that
  Rule 41(e) motion for return of seized property is treated as a civil
  equitable proceeding when criminal proceedings against moving party are not
  yet pending). 

       ¶  21.  Here, where the circumstances required quick action, the
  deprivation was neither lengthy nor severe, and sufficient safeguards
  existed to address the risk of erroneous deprivation, we find that the
  post-deprivation hearing available under Rule 41(e) was constitutionally
  adequate. 

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  We do not address the Hegartys' claim for intentional infliction of
  emotional distress because it was not raised on appeal.

FN2.  The specific text of 13 V.S.A. § 354(b)(3) provides: 

    Seizure without a search warrant.  If the humane officer witnesses
    a situation in which the humane officer determines that an
    animal's life is in jeopardy and immediate action is required to
    protect the animal's health or safety, the officer may seize the
    animal without a warrant.  The humane officer shall immediately
    take an animal seized under this subdivision to a licensed
    veterinarian for medical attention to stabilize the animal's
    condition and to assess the health of the animal.


FN3.  The Hegartys asserted two state constitutional claims.  Beyond quoting
  specific provisions, they failed to provide any substantive analysis or
  authority to support or address how their rights under the Vermont
  Constitution might differ from those under the U.S. Constitution.  "It is
  not the proper role of this Court to act as an advocate for either of the
  parties . . . [and] we will not construct an appellate case for either
  party out of whole cloth."  State v. Taylor, 145 Vt. 437, 439, 491 A.2d 1034, 1035 (1985).  These claims were inadequately briefed and we decline
  to address them.

FN4.  The Hegartys failed to argue that Meacham was a state actor when he
  seized Paka.  Under ordinary circumstances, their failure to make such a
  fundamental showing would be fatal to their due process claim.  Since we
  affirm the trial court's decision on different grounds, however, we assume
  without deciding that, in this case, ACHS's humane officer Meacham was
  acting as a state actor when he seized Paka pursuant to 13 V.S.A. §
  354(b)(3).

FN5.  V.R.Cr.P. 41(e) provides:

    A person aggrieved by an unlawful search and seizure may move the
    court to which the warrant was returned or the court in the county
    or territorial unit where property has been seized without warrant
    for the return of the property on the ground that he is entitled
    to lawful possession of the property which was illegally seized.
    The judge shall receive evidence on any issue of fact necessary to
    the decision of the motion. If the motion is granted the property
    shall be restored and it shall not be admissible in evidence at
    any hearing or trial. After an indictment or information is filed,
    a motion for return of property shall be made or heard only in the
    county or territorial unit of trial and shall be treated as a
    motion to suppress under Rule 12(b)(3).