MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision: 2014 ME 74
Docket:   Fra-12-490
Argued:   April 9, 2014
Decided:  June 10, 2014

Panel:          SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.


                                    STATE OF MAINE

                                             v.

                                       JULIA PECK

SAUFLEY, C.J.

         [¶1]    Julia Peck appeals from a judgment entered in the District Court

(Franklin County, Carlson, J.) after a bench trial finding that Peck committed the

civil violation of cruelty to animals, see 7 M.R.S. §§ 4011(1)(E), 4016(1) (2013);

prohibiting Peck from owning, possessing, or having on her premises any animals

except two spayed or neutered cats, see id. § 4016(1)(C); requiring Peck to pay a

fine of $500 plus surcharges, see id. § 4016(1)(A), and $18,000 in restitution to the

State, see id. § 4016(1)(B); 14 M.R.S. §§ 3141(1), (4), 5602 (2013); and requiring

her to post a bond of $6,400 to support during the appeal process the cats that were

seized from her home by the State, see 17 M.R.S. § 1021(6)(D) (2013). Peck

contends that the court abused its discretion in quashing a subpoena that would

have compelled one of her witnesses to testify; that the cruelty-to-animals statute is

unconstitutionally vague, see 7 M.R.S. § 4011(1)(E); and that the record contains
2

insufficient evidence to sustain a finding of cruelty to animals and to support the

court’s restitution order. We affirm the judgment.

                                        I. BACKGROUND

        [¶2] On March 22, 2012, the State charged Peck with one count of the civil

violation of cruelty to animals. See id. §§ 4011(1)(E), 4016(1). Although the facts

would have permitted the State to charge Peck with numerous counts of cruelty to

animals, the prosecutor reached an agreement with Peck whereby only one charge

would be filed, but evidence regarding the twenty-six cats seized by the State

would be admissible.            The agreement represents a compassionate exercise of

prosecutorial discretion because it exposed Peck to only one mandatory fine of

$500 while enabling the court to address each incident of alleged cruelty to

animals. See id. §§ 4011(1)(E), 4016(1)(A). Had Peck been charged with and

found to have committed the number of counts of cruelty to animals commensurate

with the number of cats the State seized, the mandatory minimum fine would have

totaled $25,500, rather than $500. See id. § 4016(1)(A).1

        [¶3] The court held a three-day bench trial in which Peck was unrepresented

by counsel. The State presented evidence of its substantial efforts to assist Peck

and her eventual decision to cease cooperating with the State. From the extensive

    1
     For the first civil offense, the court must impose a mandatory fine of not less than $500, and for the
second and subsequent offenses a fine of not less than $1,000 is mandated. 7 M.R.S. § 4016(1)(A)
(2013).
                                                                                  3

and detailed evidence regarding the very poor health of the twenty-six cats and

kittens seized from Peck, the court made the following findings of fact, which are

fully supported by the record.

      [¶4] In July 2011, local officials became aware that Peck was keeping a

substantial number of cats at her home. Peck was unable to keep up with the

outbreak of illnesses and infections among the cats, and only took her cats to a

veterinarian when they were very ill or near death. Although State and local

officials attempted to help Peck reduce her cat population over a period of months,

the State ultimately seized twenty-six of the cats. Each of the seized cats suffered

from one or more medical problems such as mycoplasma, toxoplasmosis,

tapeworm, ringworm, an upper respiratory disease, conjunctivitis, fleas, and ear

infections; some were so ill that they bore stillborn litters.     The State spent

approximately $36,800 to treat, house, and care for the cats.

      [¶5] On September 4, 2012—one day before the final day of trial—one of

Peck’s witnesses, a doctor of veterinary medicine, sent a letter to the court asking

to be excused from testifying. The court treated the witness’s request as a motion

to quash Peck’s subpoena to testify. In his request, the witness stated that he

received Peck’s subpoena on Sunday, September 2, 2012, leaving him “one

business day” to prepare and clear his schedule. He asserted that complying with

Peck’s subpoena on such short notice would cause him to cancel meetings with
4

“twenty-five to thirty clients,” inconveniencing each client, impoverishing his

business, and costing him “an inestimable amount of goodwill”; and that

complying with Peck’s subpoena would cause him to miss a lunchtime retirement

party for his employee of twenty years.2 The court quashed Peck’s subpoena on

September 5, 2012, the last day of trial.

          [¶6] The court made oral findings of fact, stating that Peck “committed

cruelty to animals based upon a failure to supply these . . . 26 cats that were seized

by the State on January 11th, 2012, [with] necessary medical attention,” and

imposed a single fine of $500.3 See 7 M.R.S. § 4016(1)(A). The court also orally

ordered that Peck post a bond of $6,400 with the court to support the cats while her

appeal to us was pending. See 17 M.R.S. § 1021(6)(D). On September 6, 2012,

the court issued a written judgment limiting the number of animals that Peck may

own, possess, or have on her premises to two spayed or neutered cats and ordering

restitution of $18,000—approximately half of the sum the State spent to house and

care for the cats—to be paid in monthly installments of $100.4 See 7 M.R.S.

4016(1)(B)-(C); 14 M.R.S. § 3141(4) (authorizing courts to order installment

    2
     In what appears to be a typo, the witness stated that “Wednesday the 4th” was the employee’s last
day. September 4, 2012, the day the witness composed the request, was a Tuesday, such that the
Wednesday referred to in the letter, the day the witness was subpoenaed to testify, was most likely
September 5, 2012.
    3
        After applicable surcharges and assessments, the fine ultimately totaled $620.
    4
      If Peck makes a $100 payment every month, the entire debt of $18,000 will take fifteen years to
satisfy.
                                                                                                       5

payments if “requiring the defendant to make immediate payment in full would

cause a severe and undue hardship for the defendant”). Peck timely appealed. See

14 M.R.S. § 1851 (2013); M.R. App. P. 2(b)(3).

                                         II. DISCUSSION

A.       Motion to Quash

         [¶7] Peck argues that the court erred in failing to hold a hearing on the

veterinary doctor’s motion to quash and failing to provide its reasons for quashing

Peck’s subpoena.5 “On timely motion, the court for which a subpoena was issued

shall quash or modify the subpoena if it[, inter alia,] fails to allow a reasonable

time for compliance [or] subjects a person to undue burden.”                           M.R. Civ. P.

45(c)(3)(A)(i), (iv). Despite the absence of Maine case law or a rule explicitly

authorizing a nonparty witness to move to quash a subpoena ad testificandum,

cf. State v. Grover, 387 A.2d 21, 21-22 (Me. 1978) (holding that a nonparty

witness has no right to appeal the denial of a motion to quash), the Advisory

Committee Note to M.R. Civ. P. 45 recognizes motions to quash as “the remedy

for nonparties,” M.R. Civ. P. 45 Advisory Committee Note to 2007 amend. “The

decision to quash a subpoena . . . rests in the discretion of the court.” State v.

Watson, 1999 ME 41, ¶ 5, 726 A.2d 214.


     5
      The court appropriately treated the witness’s letter as a motion to quash. See M.R. Civ. P. 7(b)(1)
(defining “motion” as “[a]n application to the court for an order” made orally or in writing).
6

      [¶8] Given Peck’s late delivery of the subpoena and the assertions set forth

in the prospective witness’s motion to quash, the court did not abuse its discretion

in quashing Peck’s subpoena. See M.R. Civ. P. 45(c)(3)(A)(i), (iv). Although it is

generally the best practice to allow the parties to be heard on the motion, Peck

presents no information on appeal demonstrating that a hearing would have

changed the outcome of the motion or the trial. See M.R. Civ. P. 26(g)(2); M.R.

Civ. P. 45(e) (providing that Rule 26(g) governs “[m]otions or objections

concerning subpoenas issued in discovery or pretrial proceedings”).

B.    Void for Vagueness

      [¶9] The cruelty-to-animals statute provides that “a person, including an

owner or the owner’s agent, is guilty of cruelty to animals if that person . . .

[d]eprives an animal that the person owns or possesses of . . . necessary medical

attention.” 7 M.R.S. § 4011(1)(E). The statute further provides that “[n]o person

owning or responsible for confining or impounding any animal may fail to supply

the animal with necessary medical attention when the animal is or has been

suffering from illness, injury, disease, excessive parasitism or malformed or

overgrown hoof.” Id. § 4014 (2013). Peck contends that section 4011 is void for

vagueness because it fails to define “necessary medical attention” in a manner that

enables people of common intelligence to easily discern its meaning.
                                                                                  7

      [¶10] Although the void-for-vagueness doctrine is more commonly applied

in the criminal law context, the doctrine is also applied in those circumstances

where a person “must conform [her] conduct to a civil regulation.” Me. Real

Estate Comm’n v. Kelby, 360 A.2d 528, 531 (Me. 1976) (quotation marks omitted).

The due process clauses of the Maine and United States Constitutions require that a

statute “must provide reasonable and intelligible standards to guide the future

conduct of individuals and to allow the courts and enforcement officials to

effectuate the legislative intent in applying these laws.” Shapiro Bros. Shoe Co.,

Inc. v. Lewiston-Auburn Shoeworkers Protective Ass’n, 320 A.2d 247, 253 (Me.

1974); see U.S. Const. amend. XIV, § 1; Me. Const. art. I, § 6-A. “A statute may

be void for vagueness when people of common intelligence must guess at its

meaning.” State v. Witham, 2005 ME 79, ¶ 7, 876 A.2d 40. “In examining the

sufficiency of statutory language, [o]bjective quantification, mathematical

certainty, and absolute precision are not required.” Id. (alteration in original)

(quotation marks omitted).

      [¶11] Maine’s cruelty-to-animals statute is not unconstitutionally vague.

Rather, the statute expressly defines “necessary medical attention” as the attention

required “when the animal is or has been suffering from illness, injury, disease,

[or] excessive parasitism.” 7 M.R.S. § 4014. There is nothing about the statute

that would require a person of ordinary intelligence to guess at its meaning. See
8

Witham, 2005 ME 79, ¶ 7, 876 A.2d 40; see also State v. Malpher, 2008 ME 32,

¶¶ 17-19, 947 A.2d 484 (concluding that a statute that does not define the phrase

“cruelly treated” is not void for vagueness).

C.    Sufficiency of the Evidence

      [¶12] Peck argues that the fact that her cats were sick does not necessarily

mean that she deprived them of “necessary medical attention” and that, to the

contrary, she provided her cats with holistic medication and took them to a

veterinarian when they were sick. Peck also argues that there was insufficient

evidence in the record to support the court’s restitution order and that the court

should have ascertained her ability to pay in determining the amount of restitution

for which she was liable.

      [¶13] “We review factual findings for clear error and the application of the

law to those facts de novo.” State v. Thomas, 2010 ME 116, ¶ 27, 8 A.3d 638. We

review the sufficiency of the evidence in the light most favorable to the State to

determine whether the trier of fact could have found, by a preponderance of the

evidence, each element of the charge. See State v. Black, 2000 ME 211, ¶ 14, 763

A.2d 109; M.R. Civ. P. 80H(g).

      1.     Necessary Medical Care

      [¶14] Contrary to Peck’s contention, the record supports the court’s finding

that Peck’s inability to keep up with the proliferation of her pets, which caused a
                                                                                   9

profusion of parasites and diseases to spread among the cats, constituted a failure

to provide the animals with “necessary medical care.” See State v. Weinschenk,

2005 ME 28, ¶ 8, 868 A.2d 200 (“Findings of fact are clearly erroneous only when

no competent evidence supporting the finding exists in the record.”); Rinehart v.

Schubel, 2002 ME 53, ¶ 9, 794 A.2d 73 (stating that a “court is not required to

believe the testimony of any particular witness, expert or otherwise” (quotation

marks omitted)). Specifically, the court heard evidence that several of Peck’s cats

died shortly after Peck brought them to a veterinarian; all twenty-six seized cats

had one or more medical problems; a respiratory disease was circulating among

Peck’s cats; Peck rebuffed the State’s efforts to help her reduce the number of cats;

against a veterinarian’s advice, Peck took one kitten back from a veterinarian early

in the State’s work with her and the kitten nearly died; and the cats improved in

health after receiving treatment.

      2.     Restitution Order

      [¶15] The record taken as a whole reflects the parties’ agreement that, in

fashioning its restitution order, the court would consider the State’s cost regarding

all of the cats proven to have suffered cruelty while in Peck’s care. Peck did not

object to the court’s consideration of the costs of providing for all twenty-six cats

on this basis, and she recognized at the conclusion of the trial that significant

restitution would be ordered. Thus, contrary to Peck’s argument, the court did not
10

err in determining that the parties’ agreement in advance of trial anticipated that

the court would have the authority to consider the costs associated with all of the

cats in fashioning the restitution order.

      [¶16] “[A] court may order a person adjudicated as having violated the laws

against cruelty to animals to pay the costs of the care, housing and veterinary

medical treatment for the animal.” 7 M.R.S. § 4016(1)(B). A court entering a

restitution order on a civil complaint must consider the offender’s “present and

future financial capacity.”    See 17-A M.R.S. § 1325(1)(C) (2013); 14 M.R.S.

§ 5602 (“Title 17-A, chapter 54 applies to the determination, ordering, payment

and enforcement of an order of restitution.”). “[A]n offender who asserts a present

or future incapacity to pay restitution has the burden of proving the incapacity by a

preponderance of the evidence,” 17-A M.R.S. § 1325(4), and the court was not

required by statute to make explicit findings as to Peck’s financial resources before

ordering restitution payments, id. § 1325(1)(C).

      [¶17] Peck did not meet her burden of demonstrating that she had no

capacity to pay restitution. See id. § 1325(4). In ordering Peck to pay restitution,

the court properly recognized Peck’s financial limitations and more than halved the

State’s requested amount of $36,800 to $18,000. See id. § 1325(1)(C). The court

further reduced the hardship of an immediate, lump sum payment by allowing the

payment to be made in monthly installments of $100.             See id.; 14 M.R.S.
                                                                           11

§ 3141(4). The court’s restitution order, which encompassed care, housing, and

treatment costs for all of the twenty-six seized cats, is both reasonable and

supported by the record. See 7 M.R.S. § 4016(1)(B); Weinschenk, 2005 ME 28,

¶ 8, 868 A.2d 200.

        The entry is:

                           Judgment affirmed.




On the briefs and at oral argument:

        Tawny L. Alvarez, Esq., Verrill Dana, LLP, Portland, for
        appellant Julia Peck

        Andrew S. Robinson, Dep. Dist. Atty., Franklin County District
        Attorney’s Office, Farmington, for appellee State of Maine



Farmington District Court docket number VI-2012-98
FOR CLERK REFERENCE ONLY
