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Superior Court of Connecticut, Judicial District of Hartford

State ex rel. Griffin v. Thirteen Horses
Connecticut
Not Reported in A.2d, 2006 WL 1828459 (Conn.Super.)

Case Details
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Summary:   Defendant's horses were seized on December 14, 2005 pursuant to a search and seizure warrant signed by the court. The warrant was sought, in part, on affidavits that alleged possible violations of the Cruelty to Animals statutory provisions. On December 22, 2005, the state filed this action, seeking an order to show cause to have the owner come into court for a hearing on the appropriate judicial action. Defendant Rowley then filed the instant motion to dismiss for lack of subject matter jurisdiction on January 19, 2006. He argues that the court lacks jurisdiction because the state has failed to comply with the provisions of § 22-329a and because the search and seizure warrant is invalid. Specifically, defendant maintains that the phrase in subsection (a) authorizing the chief animal control officer to "lawfully take charge of any animal found neglected or cruelly treated" merely allows the officer to enter the owner's property to care for the animal, but does not authorize seizure of the animal without a prior judicial determination. He attempts to create a jurisdictional issue over the phrase "lawfully taken" by arguing that a subsection (c)(2) hearing must be afforded before the animal can be removed, and that as the state has failed to strictly follow such a process in this forfeiture statute, the court lacks jurisdiction and the action must be dismissed. This court rejected Rowley's interpretation of the phrase "lawfully take charge." The court found that, as a practical matter, it is inconceivable that animal control officers, having found animals that are neglected or cruelly treated, would then leave them at the property. The legislature surely did not contemplate that the officers would be required to travel to the animals' location, perhaps multiple times each day, to ensure that they were properly cared for until the time of the hearing on the petition. The only practical way for the state to ensure that animals found neglected or cruelly treated are properly fed, sheltered, and cared for is to seize those animals and move them to a state facility pending a hearing at which the owner could be heard.

Judge BERGER, J. delivered the opinion of the court.


Opinion of the Court:

I

FACTS

*1 On December 14, 2005, the State of Connecticut, through its Chief Animal Control Officer of the Department of Agriculture, Maureen Griffin ("State"), seized fourteen horses belonging the respondent, Sven Rowley ("Rowley"), pursuant to a search and seizure warrant signed by the court, Foley, J., on December 12, 2005. The warrant was sought, in part, on affidavits that alleged possible violations of General Statutes § 53-247, [FN1] Cruelty to Animals. One of the horses was put down by a veterinarian for health reasons and the remaining horses are being kept at a state facility in Niantic.

FN1. General Statutes § 53-247 states, in part:

(a) Any person who overdrives, drives when overloaded, overworks, tortures, deprives of necessary sustenance, mutilates or cruelly beats or kills or unjustifiably injures any animal, or who, having impounded or confined any animal, fails to give such animal proper care or neglects to cage or restrain any such animal from doing injury to itself or to another animal or fails to supply any such animal with wholesome air, food and water, or unjustifiably administers any poisonous or noxious drug or substance to any domestic animal or unjustifiably exposes any such drug or substance, with intent that the same shall be taken by an animal, or causes it to be done, or, having charge or custody of any animal, inflicts cruelty upon it or fails to provide it with proper food, drink or protection from the weather or abandons it or carries it or causes it to be carried in a cruel manner, or fights with or baits, harasses or worries any animal for the purpose of making it perform for amusement, diversion or exhibition, shall be fined not more than one thousand dollars or imprisoned not more than one year or both.

On December 22, 2005, the state filed this action, seeking an order to show cause, pursuant to General Statutes § 22-329a(b), [FN2] to have the owner come into court for a hearing on the appropriate judicial action. Rowley filed the instant motion to dismiss for lack of subject matter jurisdiction on January 19, 2006. He argues that the court lacks jurisdiction because the state has failed to comply with the provisions of § 22-329a and because the search and seizure warrant is invalid. In addition, Rowley argues that the court lacks subject matter jurisdiction because the horses are located in New London County. [FN3] The state opposes the motions to dismiss primarily arguing that the reasons named in the respondent's motion do not implicate subject matter jurisdiction; rather, they simply speak to the merits of the action. It maintains that it has properly followed the requirements of the statutory scheme of § 22-329a.

FN2. General Statutes § 22-329a states, in part:

(a) The Chief Animal Control Officer, any animal control officer or any municipal or regional animal control officer may lawfully take charge of any animal found neglected or cruelly treated, in violation of sections 22-366, 22-415 and 53-247 to 53-252, inclusive, and shall thereupon proceed as provided in subsection (b) of this section, except that if, in the opinion of a licensed veterinarian, such animal is so injured or diseased that it should be destroyed immediately, such officer may humanely destroy or cause such animal to be humanely destroyed.

(b) Such officer shall file with the superior court which has venue over such matter a verified petition plainly stating such facts as to bring such animal within the jurisdiction of the court and praying for appropriate action by the court in accordance with the provisions of this section. Upon the filing of such petition the court shall cause a summons to be issued requiring the owner or owners or person having responsibility for the care of the animal, if known, to appear in court at the time and place named, which summons shall be served not less than fourteen days before the date of the hearing. If the owner or owners or person having responsibility for the care of the animal is not known, notice of the time and place of the hearing shall be given by publication in a newspaper having a circulation in the town in which such officer took charge of such animal not less than fourteen days before the date of the hearing. Such court shall further give notice to the petitioner of the time and place of the hearing not less than fourteen days before the date of the hearing.

(c) If it appears from the allegations of the petition and other affirmations of fact accompanying the petition, or provided subsequent thereto, that there is reasonable cause to find that the animal's condition or the circumstances surrounding its care require that its custody be immediately assumed to safeguard its welfare, the court shall either (1) issue an order to the owner or owners or person having responsibility for the care of the animal to show cause at such time as the court may designate why the court shall not vest in some suitable state, municipal or other public or private agency or person the animal's temporary care and custody pending a hearing on the petition or (2) issue an order vesting in some suitable state, municipal or other public or private agency or person the animal's temporary care and custody pending a hearing on the petition which hearing shall be held within ten days from the issuance of such order on the need for such temporary care and custody. The service of such orders may be made by any officer authorized by law to serve process, state police officer or indifferent person.

(d) If the court issues an order pursuant to subsection (c) of this section vesting the animal's temporary care and custody in some suitable state, municipal or other public or private agency or person, the owner or owners shall either relinquish ownership of the animal or post a surety bond or cash bond with the agency or person in whom the animal's temporary care and custody was vested. The surety bond or cash bond shall be in the amount of four hundred fifty dollars and shall secure payment for the reasonable expenses of the agency or person having temporary care and custody of the animal in caring and providing for such animal until the court makes a finding as to the animal's disposition under subsection (e) of this section or for thirty days, whichever occurs first. The requirement that a bond be posted may be waived if such owner provides satisfactory evidence that such owner is indigent and unable to pay for such bond.

(e)(1) If, after hearing, the court finds that the animal is neglected or cruelly treated, it may vest ownership of the animal in any state, municipal or other public or private agency which is permitted by law to care for neglected or cruelly treated animals or with any person found to be suitable or worthy of such responsibility by the court, animal is so injured or diseased that it should be destroyed, the court may order that such animal be humanely destroyed. (3) If, after hearing, the court finds that the animal is not neglected or cruelly treated, it may cause the animal to be returned to its owner or owners or person having responsibility for its care or, if such owner or owners or person is unknown or unwilling to resume caring for such animal, it may vest ownership of the animal in any state, municipal or other public or private agency or person found to be suitable or worthy of such responsibility. (4) If the court makes a finding under subdivision (1) or (2) of this subsection less than thirty days after the issuance of an order of temporary care and custody under subsection (c) of this section and the owner of the animal has posted a bond pursuant to subsection (d) of this section, the agency or person with whom the bond was posted shall return the balance of such bond to the owner. The amount of the bond to be returned to the owner shall be calculated at the rate of fifteen dollars per day for the number of days less than thirty that such agency or person has not had temporary care and custody of the animal. (5) If the court makes a finding under subdivision (3) of this subsection after the issuance of an order of temporary care and custody under subsection (c) of this section and the owner of the animal has posted a bond pursuant to subsection (d) of this section, the agency or person with whom the bond was posted shall return such bond to such owner. (f) Unless the court finds that the animal is not neglected or cruelly treated, the expense incurred by the state or a municipality in providing proper food, shelter and care to an animal it has taken charge of under subsection (a) of this section and the expense incurred by any state, municipal or other public or private agency or person in providing temporary care and custody to an animal under subsection (c) of this section, calculated at the rate of fifteen dollars per day, shall be paid by the owner or owners or person having responsibility for the care of the animal.

FN3. On January 19, 2006, the respondent filed another motion to dismiss based upon improper venue. The court denied this motion, noting that the phrase in section (b) that "[s]uch officer shall file with the superior court which has venue over such matter" is not so definite as to preclude venue in this judicial district, as the plaintiff herein, the Chief Animal Control Officer of the Department of Agriculture, has her office at 165 Capital Avenue, Hartford. The legislature could have expressly stated that venue would be only in the district in which the animals lived; it did not. "It is our duty to interpret statutes as they are ... Courts cannot, by construction, read into statutes provisions which are not clearly stated ... The legislature is quite aware of how to use language when it wants to express its intent to qualify or limit the operation of a statute." (Internal quotation marks omitted.) State v. Miranda, 274 Conn. 727, 754-55, 878 A.2d 1118 (2005). It must also be noted that General Statutes § 51-351 states that "no cause shall fail on the grounds that it has been made returnable to an improper location." See Sprague v. Commission on Human Rights & Opportunities, 3 Conn.App. 484, 486-87, 489 A.2d 1064 (1985). This court denied that motion at the hearing on February 27, 2006.

 

II

DISCUSSION

A

"A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003).

"The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter ..." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).

"When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ... [A] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432- 33, 829 A.2d 801 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003).

*2 "Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11 [1982]. A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, [cert. denied], 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979). Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987). [Finally] ... in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 420-21 n. 3, 426 A.2d 1324 (1980)." (Internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999).

B

Section 22-329a sets out a process for animal control officers to protect neglected or cruelly treated animals. As noted by the state, the highlighted words and phrases of the title generally outline the procedures to be followed by an animal control officer. The first highlighted phrase, "Seizure of neglected or cruelly treated animals," corresponds to subsection (a), which states in relevant part: "The Chief Animal Control Officer ... may lawfully take charge of any animal found neglected or cruelly treated, in violation of sections 22-366, 22-415 and 53-247 to 53-252, inclusive, and shall thereupon proceed as provided in subsection (b) of this section ..." [FN4] In this first part, the legislature has authorized an animal control officer to lawfully take charge of an animal found neglected or cruelly treated in violation of sections 22-366, 22-415 and 53-247 to 53-252, inclusive. As discussed below, the statute is not a model of clarity. In particular, the phrases "lawfully take charge" and "found ... in violation" create confusion, which could be alleviated by redrafting the statute.

FN4. Section 22-366 is a civil statute that addresses the cropping of a dog's ears; § 22-415 is a civil statute that addresses inhumane transportation of equines; and §§ 53-247 to 53-252 are criminal statutes that address various forms of cruelty to animals.

In his memorandum of law in support of the motion to dismiss, Rowley argues that the state has failed to strictly comply with General Statutes § 22- 329a. He maintains that the phrase in subsection (a) authorizing the chief animal control officer to "lawfully take charge of any animal found neglected or cruelly treated" merely allows the officer to enter the owner's property to care for the animal, but does not authorize seizure of the animal without a prior judicial determination. He attempts to create a jurisdictional issue over the phrase "lawfully taken" by arguing that a subsection (c)(2) hearing must be afforded before the animal can be removed, and that as the state has failed to strictly follow such a process in this forfeiture statute, the court lacks jurisdiction and the action must be dismissed.

*3 This court rejects Rowley's interpretation of the phrase "lawfully take charge." First, as a practical matter, it is inconceivable that animal control officers, having found animals that are neglected or cruelly treated, would then leave them at the property. The legislature surely did not contemplate that the officers would be required to travel to the animals' location, perhaps multiple times each day, to ensure that they were properly cared for until the time of the hearing on the petition. The only practical way for the state to ensure that animals found neglected or cruelly treated are properly fed, sheltered, and cared for is to seize those animals and move them to a state facility pending a hearing at which the owner could be heard. Second, subsection (a) allows an animal to be humanely destroyed; presumably that might occur off of the owner's property. Third, the title to the section refers to "seizure." "In the construction of statutes, words and phrases shall be construed according to the commonly approved usage of the language General Statutes § 1-1(a). As noted by the state, Black's Law Dictionary (6th Ed.1991) defines seizure as "the act of taking possession of property ... implies a taking or removal of something from the possession, actual or constructive, of another person or persons."

The statute certainly contemplates that animals may be seized from their owners prior to a hearing on the petition. Subsection (c)(2) authorizes the court to vest the custody of the animals in the state based on the allegations of the petition and accompanying affirmations, prior to a hearing. The statute permits the state to seize the animals in question with one prerequisite: a judicial determination that the animals' condition justifies an immediate, temporary transfer of custody to the state pending a hearing. "[W]e construe a statute in a manner that will not thwart its intended purpose or lead to absurd results ... We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve ... If there are two possible interpretations of a statute, we will adopt the more reasonable construction over one that is unreasonable." (Internal quotation marks omitted.) Kelly v. New Haven, 275 Conn. 580, 616, 881 A.2d 978 (2005). The state obtained a criminal search and seizure warrant, seized the horses, and then commenced the present civil action. The use of the criminal warrant procedure rather than the civil petition procedure to obtain a judicial determination of whether immediate seizure is appropriate did not deprive Rowley of due process. The state's seizure of the horses in question, subsequent to a judicial determination that the seizure was justified, was in compliance with the statute.

Furthermore, the procedure followed by the state does not in any way deprive the court of subject matter jurisdiction. "Although related, the court's authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute." (Internal quotation marks omitted.) State v. Rogelstad, 73 Conn .App. 17, 35, 806 A.2d 1089 (2002). "Even if a statute or Practice Book rule must be strictly construed and is mandatory, compliance with its requirements does not necessarily become a prerequisite to a court's subject matter jurisdiction." (Internal quotation marks omitted.) Blakeney v. Commissioner of Correction, 47 Conn.App. 568, 581, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). In the present case, the court clearly has the authority to review whether the state's action in taking the horses was appropriate. There is nothing about the phrase "lawfully taken" that confers or does not confer subject matter jurisdiction on this court.

*4 As mentioned above, subsection (a) only authorizes an animal control officer to lawfully take charge of "any animal found neglected or cruelly treated, in violation of sections 22-366, 22-415 and 53-247 to 53- 252 ..." While subsection (a) on its face applies to animal control officers, the legislature did not give these officers the independent authority to seize an animal that is in a condition that justifies such action. As the statute is currently drafted, only the court can make the finding (based on facts presented by an animal control officer) that there is reasonable cause to find that the animals are neglected or cruelly treated in violation of those sections. "General Statutes § 22-329a ... provides for the animal control officer to "lawfully take charge of any animal found neglected or cruelly treated. Such a finding by the court is necessary for implementation of the statute." State v. Seven (7) Horses, Superior Court, judicial district of Hartford, Docket No. CV 05 4008329 (June 28, 2005, Freed, J.). In the present case, the state obtained a search and seizure warrant prior to taking the animals and there is no evidence that the warrant had been challenged as of the time of argument before this court in this matter. The state has complied with its obligation of obtaining prior judicial determination that the animals in question are neglected or cruelly treated in violation of the statutes articulated in the statute.

The statute creates confusion because the framework set forth in subsections (a) and (b) renders subsection (c) redundant. Subsection (a) sets forth a three-stage process for an animal control officer who finds an animal in poor condition. First, the officer must obtain a judicial determination that there is reasonable cause to believe that the condition of the animal justifies immediate seizure. Second, the officer may lawfully take charge of the animal. As discussed above, the phrase "lawfully take charge" amounts to seizure. Third, the officer must proceed as provided in subsection (b). Subsection (b) requires the officer to file a petition and directs the court to schedule a hearing and provide the owner with notice. Subsection (c), which is not mentioned in the earlier subsections, lays out the court's two options upon finding reasonable cause. Under subsection (c)(1), the court may issue an order to the owner to show cause at a hearing as to why the animal's temporary custody should not be vested in the state or another suitable agency. Presumably, the owner would retain custody in the interim under (c)(1), since the court's other alternative, in subsection (c)(2), is to vest the animal's temporary custody in the state or another suitable agency pending a hearing.

Subsection (c)(1) is difficult to understand because if the court has found probable cause to believe that an animal is neglected or cruelly treated, then leaving the animal in the owner's custody pending a hearing would only perpetuate its suffering. Since the state can provide the animal with food, water, shelter and protection from abuse until the hearing, and the statute is designed to promote animal welfare, it would seem counterintuitive to further subject the animal to cruel or neglectful conditions. Furthermore, subsection (c)(2) is redundant because subsections (a) and (b) already provide for an initial judicial determination that seizure is justified, followed by the actual seizure, followed by notice to the owner and a hearing. Given that the animal control officers have authority to seize an animal under subsection (a), and the court will schedule a hearing under subsection (b) upon filing of the petition, there is no need for the choice laid out in subsection (c). The statute simply falls to lay out a logical framework by which animal control officers and the courts may proceed.

*5 One could argue that in drafting subsections (a) and (b), the legislature did not intend to require a judicial finding in advance of the seizure, because the officer is instructed to first take charge of the animal and then come to court. Notwithstanding the "found ... in violation" language, the legislature may instead have intended a framework wherein the animal control officer who discovers an animal that appears, in the officer's judgment, to be neglected or cruelly treated, may seize the animal and must then immediately seek a judicial determination that there is reasonable cause to believe that the animal is neglected or cruelly treated. The court would then need to determine whether reasonable cause exists. If it does, the court would order that the animal remain in the custody of the state pending a hearing. After the hearing, the court would determine whether custody of the animal should be vested in the owner or in the state. If reasonable cause does not exist, then the court would order that the animal be immediately returned to the owner. If the legislature does intend to vest the seizure decision in the animal control officer, rather than in the court, the statute should be redrafted accordingly, with provisions for immediate filing of the petition and a speedy hearing.

Notwithstanding the above, and despite the deficiencies of the statute, the state successfully complied with its twofold obligation of obtaining a judicial determination of reasonable cause prior to seizure in accordance with subsection (a), and following the filing process set forth in subsection (b). The state obtained the search and seizure warrant from the court, Foley, J., on December 12, 2005, and filed its petition with the court on December 22, 2005. [FN5]

FN5. Rowley states that he was not afforded a hearing to challenge the legality of the criminal search and seizure warrant pursuant to which the horses were removed. In response, the state correctly argues that the proper means of challenging the warrant and the seizure is to file a motion for return of unlawfully seized property and suppression as evidence, in accordance with General Statutes § 54-33f(a), which states: "A person aggrieved by search and seizure may move the court which has jurisdiction of such persons case or, if such jurisdiction has not yet been invoked, then the court which issued the warrant, or the court in which such person's case is pending, for the return of the property and to suppress for use as evidence anything so obtained on the ground that: (1) The property was seized without a warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. In no case may the judge or judge trial referee who signed the warrant preside at the hearing on the motion." (Emphasis added.)

The next requirement is on the court, which "[u]pon the filing of such petition ... shall cause a summons to be issued requiring the owner or owners or person having responsibility for the care of the animal, if known, to appear in court at the time and place named, which summons shall be served not less than fourteen days before the date of the hearing." General Statutes § 22- 329a(b). Subsection (b) then requires the animal control officer to apply to the court for a hearing on appropriate notice so that the court may take "appropriate action ... in accordance with the provisions of this section."

On December 22, 2005, this court, through its Assistant Clerk, scheduled the hearing for January 17, 2006, requiring notice to be served by January 3, 2006, fourteen days before the scheduled hearing, in compliance with the statute. The record reflects that a marshal served process on Rowley by leaving the papers in his hands on December 28, 2005, in compliance with the fourteen day notice rule. The thirteen horses were thereby brought into the jurisdiction of the court. General Statutes § 22-329a provides that the superior court which has venue over such matters may cause a summons to be issued requiring the owners or persons responsible for the animals in question to appear in court. It is without question that the superior court has the power to act regarding § 22-329a.

*6 Rowley also argues that the criminal search and seizure warrant was invalid because Rowley was never charged with or arrested for cruelty to animals. This was not true at the time of the hearing, as charges had been brought against Rowley, but he continued to make the argument.

CONCLUSION

This court has subject matter jurisdiction over this matter under § 22- 329a, and, accordingly, the motion to dismiss for lack of subject matter jurisdiction is denied.

 

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