Hegarty v. Addison County Humane Society (2002-385); 176 Vt. 405;
848 A.2d 1139
2004 VT 33
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
2004 VT 33
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
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
¶ 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
¶ 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
¶ 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
¶ 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
FOR THE COURT:
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. §
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).