In this case, Donna Jacobsen appealed a district court order finding she had neglected fifty-six dogs in the course of her operation of a federal and state licensed kennel in Jesup. On appeal, Jacobsen contended that the district court lacked subject matter jurisdiction because federal law (the Animal Welfare Act) preempts state regulations of federally licensed kennels. The court disagreed, finding the Act expressly contemplates state and local regulation of animals. Further, a plain reading of the Animal Welfare Act shows that Congress demonstrated no express or implied intent to preempt state or local government from regulating in this area.
Donna Jacobsen appeals from a district court order finding she had neglected fifty-six dogs and ordering her to reimburse Black Hawk County. On appeal Jacobsen contends (1) the district court abused its discretion in failing to grant a continuance; (2) the trial judge abused his discretion in failing to recuse himself; (3) the district court should have dismissed the petition for a lack of subject matter jurisdiction; (4) there was insufficient evidence to find that she committed animal neglect; and (5) the county did not prove the $12,598.77 in damages was the result of any neglect. We affirm.
Background Facts and Proceedings.
Donna Jacobsen operated a federal and state licensed kennel in Jesup. On March 15, 2001, Dr. Lori Cherney, a licensed veterinarian, along with a Black Hawk County sheriff's deputy, attempted to make a court-ordered inspection of her kennel. However, they were denied access. Dr. Cherney and a deputy again visited the clinic on March 26, 2001. During an inspection, Dr. Cherney noted there was no ventilation in the kennel, the odor was overwhelming, the cages were not cleaned, the area around the cages was also very filthy, and the cages had an inadequate water supply. On April 6, 2001, sheriff's deputies rescued fifty-eight dogs and one cat from Jacobsen's kennel after a follow-up inspection. The animals were placed in the care of the Cedar Bend Humane Society. The Black Hawk County Attorney then filed a petition for disposition of neglected animals pursuant to Iowa Code section 717B.4 (2001). Following a hearing, the district court found that the animals had been neglected and ordered the animals to remain in the care of the Cedar Bend Humane Society. [FN1] The court also ordered Jacobsen to reimburse $12,598.77 to the county. Jacobsen appeals.
FN1. Two dogs and the cat were not part of this order.
Motion for Continuance.
Jacobsen contends the district court abused its discretion in failing to grant a continuance pursuant to Iowa Code section 717B.4(1). Under this section, the decision to grant or deny a continuance rests within the sound discretion of the trial court. See Burton v. Univ. of Iowa Hosps. & Clinics, 566 N.W.2d 182, 187 (Iowa 1997). We will reverse only when that discretion is abused. See Hawkeye Bank & Trust, Nat. Ass'n v. Baugh, 463 N.W.2d 22, 26 (Iowa 1990).
Jacobsen argues that the district court abused its discretion in refusing to grant a continuance of ten to fourteen days in order to allow her counsel to depose Dr. Cherney. We disagree. After a careful review of the record, we conclude the district court did not abuse its discretion in refusing to grant a continuance. Defense counsel had Dr. Cherney's report approximately one week prior to trial. There is no evidence in the record that defense counsel attempted to subpoena or file a notice to depose Dr. Cherney during that period. Defense counsel was able to retain two expert witnesses prior to trial. Dr. Danny Budreau, a licensed veterinarian, and William A. Volz, a mechanical engineer, were called to refute Dr. Cherney's testimony. Most importantly, the court gave defense counsel the opportunity to leave the record open for further research and the submission of additional evidence, if needed. Under these circumstances, we conclude the district court did not abuse its discretion.
Motion for Recusal.
Jacobsen contends the trial judge abused his discretion in failing to recuse himself. Specifically, Jacobsen argues that the motion should have been granted because (1) Judge Fister was the Humane Society's attorney in 1993; (2) Judge Fister heard the previous case against Jacobsen and ruled unfavorably toward her; and (3) Judge Fister and the assistant county attorney discussed the issue of Jacobsen's restitution on the first case outside the presence of defense counsel.
The burden of showing grounds for recusal is on the party seeking it. State v. Haskins, 573 N.W.2d 39, 44 (Iowa Ct.App.1997). This burden is substantial, and we will not overturn the trial judge's decision absent an abuse of discretion. Id. To show an abuse of discretion, a party must show the court exercised its discretion " 'on grounds or for reasons clearly untenable or to an extent clearly unreasonable.' " In re Estate of Olson, 479 N.W.2d 610, 613 (Iowa Ct.App.1991) (quoting State v. Blackwell, 238 N.W.2d 131, 138 (Iowa 1976)). Actual prejudice must be shown before a recusal is necessary. State v. Sinclair, 582 N.W.2d 762, 766 (Iowa 1998). Only personal bias or prejudice is a disqualifying factor, not judicial predilection. State v. Smith, 242 N.W.2d 320, 324 (Iowa 1976); Haskins, 573 N.W.2d at 45. To be a disqualifying factor, the bias or prejudice must stem from an extrajudicial source and " 'result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.' " State v. Smith, 282 N.W.2d 138, 142 (Iowa 1979) (quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778, 793 (1966)). The test is whether a reasonable person would question the judge's impartiality. Sinclair, 582 N.W.2d at 766.
After a careful review of the record, we conclude the district court did not abuse its discretion in overruling Jacobsen's motion for recusal. No evidence shows Judge Fister possessed any personal knowledge of the disputed facts in the proceedings. Judge Fister's remarks reveal no prejudice on the merits of the action.
Subject Matter Jurisdiction.
Jacobsen contends the district court lacked subject matter jurisdiction because federal law preempts state regulations of federally licensed kennels. [FN2] We disagree.
FN2. She specifically contends the issues of ventilation and cleanliness are preempted.
The preemption doctrine rests on the Supremacy Clause of the Federal Constitution:
This Constitution and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const. art. VI, cl. 2. If a matter is preempted, a state court lacks subject matter jurisdiction to decide it. Walles v. Int'l Bhd. of Elec. Workers, 252 N.W.2d 701, 710 (Iowa 1977). Preemption may be found where Congress's intent to preempt the field is either expressly stated or implicit in congressional policy. Brotherhood of Maint. of Way Employees v. Chicago & N.W. Transp. Co., 514 N.W.2d 90, 93 (Iowa 1994).
The Animal Welfare Act regulates the transportation, purchase, sale, housing, care, handling, and treatment of animals, with the intent of fostering humane treatment and care of animals and protecting animal owners from theft of their animals. 7 U.S.C. § 2131. It is clear the Act does not evince an intent to preempt state or local regulation of animal welfare. DeHart v. Town of Austin, Ind., 39 F.3d 718, 722 (7th Cir.1994); Kerr v. Kimmell, 740 F.Supp. 1525, 1530 (D.Kan.1990). Rather, the Act expressly contemplates state and local regulation of animals. DeHart, 39 F.3d at 722. Section 2145(b) of the Act provides"
The Secretary is authorized to cooperate with the officials of the various States or political subdivisions thereof in carrying out the purposes of this chapter and of any State, local, or municipal legislation or ordinance on the same subject.
7 U.S.C. § 2145(b) (emphasis added). In addition, the savings clause of the Act provides that the statutory authority delegated to the secretary of agriculture to promulgate standards for animal handling, care, treatment and transportation by dealers, research facilities, and exhibitors "shall not prohibit any State (or political subdivision of such State) from promulgating standards in addition to those standards promulgated by the Secretary...." 7 U.S.C. § 2143(a)(8). Sections 2145(b) and 2143(a)(8) show Congress anticipated that states would remain active in this area of traditional state interest. Kerr, 740 F.Supp. at 1530. "Thus, plaintiff's argument that Congress intended to totally occupy the field of animal welfare is belied by the express language of the federal statute cited above." Id.
After a careful review of the federal and state law, we find the plain reading of the Animal Welfare Act demonstrates that Congress demonstrated no express or implied intent to preempt state or local government from regulating in this area. As such, we find no merit in Jacobsen's arguments in support of her preemption claim.
Other Issues.
We have reviewed the other issues raised by Jacobsen and find them to be without merit.
AFFIRMED.