No. 13-0936 – Estella Robinson v. City of Bluefield
                                                                           FILED
                                                                     November 14, 2014
                                                                      RORY L. PERRY II, CLERK
                                                                    SUPREME COURT OF APPEALS
                                                                        OF WEST VIRGINIA

Benjamin, Justice, concurring:

              I fully understand my dissenting colleagues’ reliance on emotion in

reaching their conclusions in this case. Cases involving dogs generate a great deal of

emotions. This is especially true when, as here, a dog has seriously injured someone. It is

important, however, that we, as a Court, maintain our focus on the law of the case, not

what we wish the law to be—but isn’t. While it is tempting to want to expand our role

into that of policy, rather than that of law, the policy determinations herein are those of

the Legislature, not this Court. It is the Legislature which has set forth the law which

determines this case and it is for the Legislature to change that law if a change is

warranted.



               The sole issue before the Court in this case was whether a municipal court

has the authority to act as it did below pursuant to city ordinance. The Majority decision

concluded—upon applying long-standing basic rules of statutory construction to the

pertinent sections of the West Virginia Code—that our Legislature did not intend for

municipalities to have that authority. The Majority’s decision is correct. I write separately

to underscore the obligation of our judicial branch to enforce our Legislature’s intent and

the rule of law in West Virginia, and to resist founding our decision on emotion, strong as

the desire may be to do so in this case.


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             Dogs are, in most jurisdictions, personal property. See, e.g., W. Va. Code §

19-20-1 (1975) (“Any dog shall be and is hereby declared to be personal property within

the meaning and construction of the laws of this State . . . .”). However, because “[a]n

increasing number of American households regard their companion animals as being as

much a part of their family as they do their human family members,” states have begun to

treat companion animals differently from other types of animals and other types of

personal property. Sabrina DeFarbritiis, Barking Up the Wrong Tree: Companion

Animals, Emotional Damages and the Judiciary’s Failure to Keep Pace, 32 N. Ill. U. L.

Rev. 237, 237–38 (2012) (hereinafter Barking Up the Wrong Tree). For instance,

Connecticut, Illinois, and Tennessee have enacted statutes expressly permitting recovery

of non-economic damages for the loss of a companion animal. Id. at 255 n.97 (“Conn.

Gen. Stat. § 22-351a (2009) (originally enacted in 2004); 510 Ill. Comp. Stat. 70/16.3

(2010) (originally enacted in 2002); Tenn. Code Ann. § 44-17-403 (West 2010)

(originally enacted 2000).”). Companion animals have also been the subject of custody

and estate planning or administration cases. See Susan J. Hankin, Not a Living Room

Sofa: Changing the Legal Status of Companion Animals, 4 Rutgers J. L. & Pub. Pol’y

314, 351–65 (2007).



             The West Virginia Legislature has enacted statutes that treat animals which

may be companion-animals, such as dogs, in a different manner than other types of

personal property. See W. Va. Code § 19-20-1 et. seq.; W. Va. Code § 19-20A-1 et. seq.;


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W. Va. Code § 19-20B-1 et. seq.; W. Va. Code § 19-20C-1 et. seq.; W. Va. Code § 19-

20D-1 et. seq. For instance, the Legislature has specifically delineated a punishment for

destroying a dog, 1 and this punishment is separate and apart from the punishments

provided for destroying other types of animals,2 or other personal property.3 Considering

that the human-animal “bond often causes extensive emotional suffering by the human

companion when the animal is injured or killed by a third-party’s intentional or negligent

act,” DeFarbritiis, Barking Up the Wrong Tree, 32 N. Ill. U. L. Rev. at 238, it is

unsurprising that the Legislature would create a method by which the destruction of dogs

is treated differently than the destruction of other personal property.

       1
         W. Va. Code § 19-20-12(a) (2007) (“Any dog which is registered, kept and
controlled as provided in this article or any dog, . . . kept and maintained as a companion
animal by any person, irrespective of age, is protected by law; and, except as otherwise
authorized by law, any person who shall intentionally, knowingly or recklessly kill,
injure, poison or in any other manner, cause the death or injury of any dog . . . is guilty of
a misdemeanor and, upon conviction thereof, shall be ordered to provide public service
for not less than thirty nor more than ninety days or fined not less than three hundred
dollars nor more than five hundred dollars, or both.” (In part.)).
       2
        W. Va. Code § 61-3-27 (1994) (“If a person maliciously administers poison to,
or exposes poison with the intent that it should be taken by, any horse, cow or other
animal of another person, or if any person maliciously maims, kills, or causes the death of
any horse, cow or other animal of another person, of the value of one hundred dollars or
more, the person is guilty of a felony, and, upon conviction, shall be imprisoned in the
penitentiary not less than one year nor more than ten years; and, if the horse, cow or other
animal is of less value than one hundred dollars, the person is guilty of a misdemeanor,
and, upon conviction, shall be confined in jail not more than three months and fined not
more than five hundred dollars: Provided, That this section shall not be construed to
include dogs.”).
       3
         W. Va. Code § 61-3-30(a) (2004) (“If any person unlawfully, but not feloniously,
. . . destroys . . . any property, real or personal, of another, he or she is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more than five hundred
dollars, or confined in the county or regional jail not more than one year, or both fined
and imprisoned.”).

                                              3
              Part of the Legislature’s method for dealing with the destruction of dogs is

the requirement that only magistrates and circuit courts have the authority to order the

destruction of a dangerous dog, upon receiving satisfactory proof that the dog is vicious,

dangerous, or in the habit of biting or attacking other persons or other dogs or animals.

There are a number of reasons why the Legislature would limit this authority to only

magistrates and circuit courts to the exclusion of municipal courts. First, magistrates and

circuit judges are all elected officials, and as such, the people who elect them hold them

directly accountable for their decisions. Second, there are a variety of qualifications that

must be met to hold office as a magistrate or circuit judge. Circuit judges must be

licensed attorneys who have practiced law for at least five years prior to taking office. W.

Va. Const. art. VIII, § 7. Magistrates

              shall be at least twenty-one years of age, shall have a high
              school education or its equivalent, shall not have been
              convicted of any felony or any misdemeanor involving moral
              turpitude and shall reside in the county of his election. No
              magistrate shall be a member of the immediate family of any
              other magistrate in the county.

W. Va. Code § 50-1-4 (1992). Third, magistrates have the ability to sentence someone

criminally for up to one year, and circuit courts can impose much harsher sentences. W.

Va. Const. art. VIII, § 10; W. Va. Code § 50-2-3 (1993); W. Va. Code § 51-2-2 (2008).

Both magistrates and circuit judges must complete continuing judicial education courses

throughout their terms of office. W. Va. Code § 50-1-4; W. Va. R. Disciplinary P.

7.14(A); W. Va. R. Disciplinary P. 7.16(A).



                                              4
                Unlike with magistrates or circuit judges, there is no legislative requirement

that municipal judges be elected. 4 The charter of the City of Bluefield, for example,

provides that municipal judges hold office at the pleasure of the municipality’s board of

directors. Additionally, although many municipal judges in West Virginia are licensed

attorneys, there is no requirement that they be so. There are almost no minimum

qualifications to serve as a municipal judge. As is the case with the City of Bluefield, the

only minimum requirement for serving as a municipal judge is that he or she not have

been “convicted of a felony or any misdemeanor crime set forth in” certain delineated

portions of the Code dealing primarily with sex offenses. W. Va. Code § 8-10-2(b)

(2007). However, the Legislature has provided that municipal judges who are not lawyers

take a course in rudimentary principles of the law and procedure, and that municipal

judges who are not lawyers attend continuing education annually. W. Va. Code § 8-10-

2(c). Finally, compared to the powers of magistrates and circuit courts, municipal courts’

powers are limited. For example, according to its charter, the Bluefield municipal court

may only impose a fine up to $500 and may not order imprisonment for a term greater

than 30 days.



                Therefore, where the lives of companion animals such as dogs are at stake,

lives for which the Legislature has imposed a minimum $300 fine and a 30-day sentence


       4
       The Legislature permits for the election or appointment of municipal judges, in
accordance with a municipality’s charter or ordinances. W. Va. Code § 8-10-2(a) (2007).

                                               5
of public service for the wrongful taking thereof, it is reasonable to interpret that the

Legislature intends to place those lives in the hands of the more legally accountable and

authoritative magistrates and circuit judges of this state.



              Chapter 19, Article 20 of the West Virginia Code represents the

Legislature’s acknowledgment of the unique role companion animals, such as dogs, hold

with West Virginians. While the early twentieth century saw this Court uphold municipal

ordinances permitting municipal judges to order the destruction of dogs, see City of

Buckhannon ex rel. Cockerill v. Reppert, 118 W. Va. 10, 10, 189 S.E. 585, 585 (1937)

(Kenna, J., concurring), the Legislature, in enacting statutes like W. Va. Code § 19-20-20

in the latter half of the century, reveals a definitive shift in the Legislature’s attitude

toward companion animals such as dogs. Thus, while one may certainly argue that most

municipal court judges could be counted on to fully consider the matters herein, it is the

Legislature’s policy call and it is our obligation to enforce that policy.



              As the Majority opinion makes clear, municipalities may still “enact

ordinances prohibiting a person from owning, keeping or harboring a dog known to be

vicious, dangerous or in the habit of biting or attacking persons, and may pursue charges

against an owner of such a dog in municipal court.” Furthermore, the Legislature has

specifically provided the same in W. Va. Code § 19-20-20. Should a municipality wish to




                                              6
have a dangerous dog destroyed, it need only present its case to a local magistrate or

circuit court.5




       5
         In an obvious effort to further ensure the protection of the public, the Legislature
has also recently provided for a private cause of action by which persons injured by a dog
may seek to have that dog euthanized. W. Va. Code § 19-20D-1 et seq. This article
provides that the action must be brought before a magistrate court, it lists a number of
elements necessary for maintaining the action, and it states that a petitioner must prove
his or her case by clear and convincing evidence. W. Va. Code § 19-20D-2 (2014).

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