No. 13-0936 - Estella Robinson v. City of Bluefield

                                                                         FILED
                                                                      October 2, 2014
                                                                    RORY L. PERRY II, CLERK
                                                                  SUPREME COURT OF APPEALS
                                                                      OF WEST VIRGINIA

LOUGHRY, Justice, dissenting:

              In complete disregard of the unfortunate truth that not all dogs are like the

beloved Lassie, a vicious dog has been granted a pardon by the highest court of this State.

Indeed, the majority of this Court has seemingly turned a blind eye to the fact that the dog

in question1 broke free of its chain and engaged in a brutal and unprovoked attack upon an

experienced humane officer,2 whose resultant injuries required surgery and a hospitalization

that approximated five days.3 The majority also seems to disregard the fact that the dog’s

owner pled guilty to owning and keeping an animal known by her to be vicious, dangerous,

and in the habit of biting persons in violation of Bluefield City Ordinance § 4-49. While I,

too, love animals, and have fond memories of my childhood companion and faithful dog,




       1
        The dog is a pit bull terrier.
       2
       The humane officer was responding to the petitioner’s residence in reference to a
complaint that one dog was running loose, and another had inadequate shelter.
       3
         The necessity of surgical treatment and hospitalization was described by counsel
during oral argument. I find the length of this hospitalization to be noteworthy particularly
in light of the growing trend of “same-day” surgery centers, where patients are discharged
the same day of their surgery, even when internal organs have been surgically excised.
Consequently, it is clear to me that the dog in question inflicted very serious injuries upon
the humane officer so as to require a hospitalization of that duration. That being said, the
majority’s statement that “[o]fficer Thompson sought medical treatment following this
incident[]” callously diminishes the severity of this situation.

                                             1
“Bozo,” my affinity does not blind me to the sad reality that some dogs are dangerous and

vicious, and inflict serious injuries, and even death, on innocent victims.4



              In order to address the threat posed by vicious dogs and protect the public

health, safety, and general welfare of their citizens, numerous municipalities in West Virginia

have enacted vicious dog ordinances, which are enforced in the municipal courts of those


       4
         See Durham v. Jenkins, 229 W.Va. 669, 735 S.E.2d 266 (2012) (disallowing civil suit
brought under criminal statute by parents seeking destruction of dog who attacked their
young daughter causing extensive injuries to child’s head, waist, thighs, and back and
requiring hospitalization and surgical repair); State v. Molisee, 180 W.Va. 551, 378 S.E.2d
100 (1989) (reversing order to euthanize dog that injured child where dog’s owner did not
receive notice of trial date); Atkins v. Conley, 202 W.Va. 457, 504 S.E.2d 920 (1998)
(reversing on evidentiary error jury verdict finding dog’s owners liable to parents of
two-year-old child, who incurred multiple injuries and permanent facial scarring inflicted by
dog); Bowden v. Monroe Cnty. Com'n, 232 W.Va. 47, 750 S.E.2d 263 (2013) (setting aside
dismissal of complaint brought by estate of victim who was maimed beyond recognition and
ultimately died due to injuries sustained when he was attacked by several pit bulls while
taking walk); State v. Moore, Nos. 11AP–1116, 11AP–1117, 2013 WL 3968166 (Ohio App.
10 Dist. 2013)(Aug. 1, 2013) (affirming conviction on two counts of failure to confine
vicious dog where appellant’s pit bull mauled two different victims in separate incidents);
State v. Collins, --- S.E.2d ----, 2014 WL 4087597 (S.C. 2014) (Aug. 20, 2014) (holding trial
court’s admission of pre-autopsy photographs of victim, 10-year-old boy who died after
being severely mauled by dogs, was not abuse of discretion); King v. Foht, 2013 WL
5310436 (Tenn.Ct.App. 2013) (reversing summary judgment granted in favor of owners of
residential rental property in personal injury action brought on behalf of eight-year-old child
attacked and injured by pit bull dog while she was walking along sidewalk); Sawh v. City of
Lino Lakes, 823 N.W.2d 627 (Minn. 2012) (finding substantial evidence supported city’s
finding that dog was unprovoked when it bit victim in third incident, so as to support city’s
order for destruction of dog under city ordinance); Tracey v. Solesky, 427 Md. 627, 50 A.3d
1075 (2012) (finding that harboring pit bull terrier was inherently dangerous activity for
which landlord could be held strictly liable when tenant’s pit bull crossed street, attacked,
and seriously injured 10-year-old boy who was playing); Watson v. State, 337 S.W.3d 347
(Tex.App. 2011) (affirming conviction for offense of attack by dog resulting in death where
seven-year-old boy was mauled to death by dogs).

                                              2
municipalities.5 See, e.g., Section 10-117 of the Code of Ordinances for the City of

Charleston (providing for the euthanization of dangerous dogs under certain conditions);

Section 507.11 of the City of Morgantown’s Ordinances (providing for the destruction of

vicious dogs under certain circumstances); Section 505.15 of the Codified Ordinances of the

City of Martinsburg (providing for the lethal destruction of vicious dogs when certain

conditions are met); Section 505.17 of the Code of Ordinances of the City of Parkersburg

(providing that vicious dogs declared to be public nuisances may be summarily destroyed if

found running at large and otherwise under certain circumstances); Section 508.11 of the

Code of Ordinances for the City Wheeling (providing for destruction of vicious dogs after

certain conditions are met); Section 507.99 of the City of Dunbar Code of Ordinances

(providing that any vicious dog that attacks human being or another domestic animal may

be ordered destroyed when in municipal court’s judgment, such vicious dog represents

continuing threat of serious harm to human beings or domestic animals); Section 507.18(i)

of the Codified Ordinances of the City of Clarksburg (providing that City Manager or his/her


       5
         Many municipal judges in this State, including the long-time municipal judge in the
City of Bluefield, are lawyers. And, where they are not, they must attend a course in the
principles of law and procedure. See W.Va. Code § 8-10-2(c) (providing that “[a]ny person
who assumes the duties of municipal court judge who has not been admitted to practice law
in this state shall attend and complete the next available course of instruction in rudimentary
principles of law and procedure. . . . The instruction must be performed by or with the
services of an attorney licensed to practice law in this State for at least three years.”).
Thereafter, municipal judges who are not lawyers must also attend a continuing education
course annually. Id. In addition, municipal courts may hold jury trials, where warranted.
See W.Va. Code § 8-10-2(d) (providing, in part, that “a defendant who has been charged with
an offense for which a period of confinement in jail may be imposed is entitled to a trial by
jury.”).

                                              3
designee may order destruction of dog it determines to be extremely dangerous to public

health or safety, dog that has made extremely vicious attack upon individual, or dog declared

dangerous whose owner is unable or unwilling to adequately restrain it). Importantly, many

municipalities have had vicious dog ordinances for decades. As we explained nearly eighty

years ago,

              under modern law . . . the obvious necessity of protecting the
              public from . . . vicious, and otherwise dangerous dogs [means
              that dogs] must be held subject to . . . very rigid regulation.
              Because of this, ordinances and statutes authorizing the
              summary destruction of dogs not kept in accordance with their
              terms have generally been upheld.

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

(Kenna, J., concurring).



              Citizens are not without recourse should they disagree with a ruling of a

municipal court, as seen here, where the petitioner appealed the municipal court’s order

following her counseled guilty plea. The petitioner challenged the municipal court’s

authority to order the destruction of her vicious dog and argued that West Virginia Code §

19-20-20,6 which allows counties to seek the destruction of vicious dogs in magistrate and


       6
        West Virginia Code § 19-20-20 (2007) provides that

              [e]xcept as provided in section twenty-one of this article, no
              person shall own, keep or harbor any dog known by him to be
              vicious, dangerous, or in the habit of biting or attacking other
              persons, whether or not such dog wears a tag or muzzle. Upon
                                                                                 (continued...)

                                             4
circuit courts, conflicts with the Bluefield City Ordinance § 4-49, which gives its municipal

court similar authority.



              In addressing the petitioner’s arguments, the circuit court thoroughly explained

that Chapter 8 of the West Virginia Code governs municipal corporations, whereas Chapter

19 does not.7 The circuit court further explained that for a conflict to exist, as the petitioner

argued, the Bluefield ordinance must either (1) permit or authorize that which the

Constitution or general law forbids or prohibits, or (2) forbids or prohibits that which the

Constitution or general law permits or authorizes.8 The circuit court soundly reasoned that

       6
        (...continued)
               satisfactory proof before a circuit court or magistrate that such
               dog is vicious, dangerous, or in the habit of biting or attacking
               other persons or other dogs or animals, the judge may authorize
               the humane officer to cause such dog to be killed.
       7
        In this regard, I note that Chapter 19 is entitled “Agriculture,” whereas Chapter 8 is
entitled “ Municipal Corporations.”
       8
        In its analysis, the circuit court relied upon West Virginia Code §8-12-5 (2012 &
Supp. 2014), which grants municipalities the power and authority to enact ordinances, which
do not conflict with other laws, as follows:

                     In addition to the powers and authority granted by: (i)
              The Constitution of this State; (ii) other provisions of this
              chapter; (iii) other general law; and (iv) any charter, and to the
              extent not inconsistent or in conflict with any of the foregoing
              except special legislative charters, every municipality and the
              governing body thereof shall have plenary power and authority
              therein by ordinance or resolution, as the case may require, and
              by appropriate action based thereon.

                                                                                   (continued...)

                                               5
neither of these circumstances exists because article VIII, section 11 of the West Virginia

Constitution expressly directs that municipal courts created by the Legislature9 “shall have

jurisdiction to enforce municipal ordinances” and that West Virginia Code § 8-12-5(26)

unequivocally authorizes municipalities “[t]o regulate or prohibit the keeping of animals or

fowls and to provide for the impounding, sale or destruction of animals or fowls kept

contrary to law or found running at large.” The circuit court further reasoned that because

Bluefield City Ordinance § 4-49, West Virginia Code § 8-12-5(26), and West Virginia Code



       8
        (...continued)
Id. (emphasis added). The circuit court also relied upon West Virginia Code § 8-1-2(9)
(2012), which provides that,

              “[i]nconsistent or in conflict with” shall mean that a charter or
              ordinance provision is repugnant to the Constitution of this State
              or to general law because such provision (i) permits or
              authorizes that which the Constitution or general law forbids or
              prohibits, or (ii) forbids or prohibits that which the Constitution
              or general law permits or authorizes[.]
       9
       The Legislature authorized municipalities to create municipal courts through its
enactment of West Virginia Code § 8-10-2(a) (2012), which states in pertinent part, as
follows:

                      Notwithstanding any charter provision to the contrary,
              any city may provide by charter provision and any municipality
              may provide by ordinance for the creation and maintenance of
              a municipal court, for the appointment or election of an officer
              to be known as municipal court judge . . . and authorize the
              exercise by the court or judge of the jurisdiction and the judicial
              powers, authority and duties set forth in section one of this
              article and similar or related judicial powers, authority and
              duties enumerated in any applicable charter provisions, as set
              forth in the charter or ordinance.

                                              6
§ 19-20-2010 all provide for the regulation and destruction of vicious animals, there is “no

conflict in substance or purpose.”



              The discussion above indisputably demonstrates the authority of a municipality

to establish a municipal court charged with enforcing the municipality’s ordinances, which

may provide for the impoundment and/or destruction of vicious and dangerous animals.

Accordingly, I now turn to the majority’s ill-advised and legally unsound conclusion that

West Virginia Code § 19-20-2011 somehow nullifies the long-standing constitutional and

statutory authority of municipalities to address the humane destruction of vicious dogs

through their ordinances enforced by their own courts within their own communities. The

Legislature, having already addressed the issue of the destruction of animals in the context

of municipalities, had no reason to include municipal courts in West Virginia Code § 19-20-

20. Significantly, “[c]ourts must presume that a legislature says in a statute what it means

and means in a statute what it says there.” Martin v. Randolph Cnty. Bd. of Educ., 195

W.Va. 297, 312, 465 S.E.2d 399, 415 (1995) (citation omitted). Here, the majority finds that

the grant of authority to municipalities to enact ordinances that provide for the destruction

of “animals and fowl,” as found in West Virginia Code § 8-12-5(26), is trumped by West


       10
        In addition to this statute that allows for counties to address vicious dogs, I observe
that West Virginia Code § 19-20-8(a) provides for the humane destruction of any unlicensed
dog that has been impounded if not claimed by its owner within five days, regardless of
whether it is vicious.
       11
        See supra note 6.

                                              7
Virginia § 19-20-20 because the latter addresses “dogs” specifically rather than “animals”

generally.12 Such reasoning is flawed. The Legislature undoubtedly employed the term

“animals” to fulfill its intent of giving municipalities very broad authority to enact ordinances

addressed to any manner of animals that might be found within a municipality, whether they

be pot bellied pigs, cats, ferrets, or dogs. See Black’s Law Dictionary 106 (10th ed. 2014)

(defining “animal” as “[a]ny living creature (besides plants) other than a human being.”).

Obviously, dogs fall well within the definition of “animal.”



              As such, it is clear that the Legislature intended to provide municipalities, as

well as counties, with the ability to control dangerous and vicious animals, including dogs,

within their purview. Rules of statutory construction do not require municipalities to yield

to counties in this regard as each has a role in protecting the safety and well-being of the

citizenry from dangerous and vicious animals.



              Moreover, “[t]he Legislature, when it enacts legislation, is presumed to know

of its prior enactments.” Syl. Pt. 12, Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953).

Although West Virginia Code § 8-12-5 was first enacted in 1868, the Legislature did not

overlook or forget this statute when it enacted West Virginia Code § 19-20-20 in 1981. In

fact, West Virginia Code § 8-12-5 was last amended this year—2014. And, the Legislature

clearly recalled the statutory authority that it gave to municipalities in the area of animal

       12


                                               8
control when it expressly provided in West Virginia Code § 19-20-6a (2007) that county

commissions may contract with or reimburse a municipality for the “care, maintenance,

control, or destruction of dogs and cats[,]” and when it gave counties and municipalities the

permission to contract with one another in relation to the maintenance of a county dog pound

and to jointly employ a dog warden in West Virginia Code §19-20-8a (2007). Simply stated,

had the Legislature intended to provide magistrates and circuit courts with exclusive

jurisdiction to order the destruction of dangerous and vicious dogs, it could have done so by

expressly stating that “sole and exclusive jurisdiction for the destruction of vicious dogs is

vested in circuit courts and magistrates, notwithstanding any other statute to the contrary.”

However, the Legislature did not provide for such exclusivity, and “[c]ourts are not free to

read into the language what is not there, but rather should apply the statute as written.” State

ex rel. Frazier v. Meadows, 193 W.Va. 20, 24, 454 S.E.2d 65, 69 (1994).



              I am deeply concerned the majority’s opinion will serve as a spring board for

further diminishment of the authority and duty of municipal courts to enforce municipal

ordinances. While the majority acknowledges the statutory authority of municipalities to

enact ordinances, it cavalierly disallows the enforcement of such ordinances in municipal

courts simply because a statute allows for counties to seek the destruction of vicious dogs in

either magistrate or circuit court. Will the confusion created by the majority effectively

sanction future and potentially fatal attacks by vicious dogs upon unsuspecting children as

they walk to school within a city’s limits ? Will an elderly couple be mauled by a vicious

                                               9
dog in their front yard as they rake leaves? Likewise, will the majority’s ruling be relied

upon in the future to strip municipal courts of their power to enforce other ordinances, such

as those involving assault and battery and hate crimes, merely because there are statutes that

also authorize the prosecution of such matters in either magistrate or circuit court?



              For these reasons, I find that the circuit court appropriately upheld the authority

of the City of Bluefield’s municipal court to enforce Bluefield City Ordinance § 4-49 in this

matter. And, based upon my concerns expressed herein, I respectfully dissent from the

majority’s decision in this case.




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