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State v. Fifteen Impounded Cats

June 23, 2010

STATE OF SOUTH DAKOTA. PLAINTIFF AND APPELLEE,
v.
FIFTEEN IMPOUNDED CATS, DEFENDANT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA, HONORABLE LORI S. WILBUR Judge.

The opinion of the court was delivered by: Gilbertson, Chief Justice

CONSIDERED ON BRIEFS ON MARCH 22, 2010

[¶1.] Patricia Edwards appeals circuit court orders ratifying the impoundment of a large number of cats she was transporting in her automobile and for disposition of the cats. We affirm.

FACTS

[¶2.] At approximately 11:15 p.m. on August 13, 2009, a police officer for the City of Pierre, South Dakota was dispatched to a local convenience store to respond to a complaint about a car parked in the parking lot occupied by a woman and a large number of cats. The officer proceeded to the parking lot and pulled up behind the car as its driver began to back out of the vehicle's parking space, nearly backing into the patrol car. At that point, the officer observed that the view out of the back window of the other car was obstructed by numerous cats climbing on the seat backs and rear dashboard inside the vehicle. The officer approached the driver of the other vehicle and identified her as Edwards.

[¶3.] Edwards provided the officer with some information about having traveled from Texas, into South Dakota, through Pierre, and to Huron. Edwards further indicated that she was traveling back through Pierre on her way to Billings, Montana, and eventually back to Texas. Edwards stated that she had fifteen cats, that she had been living out of her car for several days and that she did not have any money.

[¶4.] In addition to the cats, the officer could see that Edwards's vehicle was crammed full of personal belongings and clutter stacked on both the front passenger seat and all across the rear passenger area.*fn1 The clutter allowed the cats to roam freely through the vehicle at a level or height that interfered with the driver's visibility and limited her ability to safely operate and control the vehicle.

[¶5.] The officer's further inspection of Edwards's car revealed that it did not contain any kennels or carriers suitable for safely transporting the cats, that there was only one litter box in the vehicle, and that the litter box needed to be cleaned out. There was also a strong pet odor emanating from the vehicle. Although Edwards indicated that the cats were all spayed and neutered, she further stated that the cats had destroyed those treatment records.

[¶6.] Based upon his observations of Edwards's vehicle, his safety concerns and his concerns for the welfare of the animals, the officer impounded Edwards's cats and placed them in a local kennel under the care of a veterinarian. In carrying out the impoundment, the officer was assisted and advised by a board member with the local humane society.

[¶7.] A hearing to ratify the officer's impoundment of the cats was held on August 19, 2009. At the close of the hearing, the court expressed concern with the visibility and safety issues related to Edwards's transportation of her cats and particular concern with Edwards's ability to drive while fifteen small animals were roaming loose in her vehicle. On that basis, the court found exigent circumstances sufficient to ratify the impoundment of the cats. The court recommended that Edwards obtain legal counsel and work with counsel and the state's attorney on a plan to get her cats back and to safely transport them. The state's attorney also advised Edwards as to her financial responsibility for the costs of caring for her cats while under impoundment.

[¶8.] The State subsequently filed a motion for disposition of the impounded cats and a further hearing on the matter was held on August 24, 2009. During the hearing, the State requested that the cats be transferred to the local humane society for adoption into new homes. Although Edwards requested that she be allowed to take her cats and leave, she presented no plan to pay for the costs of their care, to care for them herself or to safely transport them. At the close of the hearing, the court entered its order transferring ownership of the cats to the local humane society for adoption and terminating Edwards's rights over them. Edwards appeals.

ISSUE ONE

[¶9.] Whether Edwards's constitutional rights were violated in the impoundment of her cats.

[¶10.] Edwards claims various violations of her state and federal constitutional rights in the impoundment of her cats. However, she concedes that she did not preserve her constitutional claims before the circuit court. Even issues over the denial of constitutional rights may be deemed waived by failure to take action to preserve the issues for appeal. See e.g . Schlenker v. South Dakota Dept. of Public Safety, 318 NW2d 351, 353 (SD 1982).

[¶11.] Edwards seeks application of the plain error doctrine to permit review of her constitutional claims.

Where an issue has not been preserved by objection at trial, our review is limited to whether the trial court committed plain error. "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court."

"We invoke our discretion under the plain error rule cautiously and only in 'exceptional circumstances.'" "Plain error requires (1) error, (2) that is plain, (3) affecting substantial rights; and only then may we exercise our discretion to notice the error if (4) it 'seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.'" When plain error is alleged, the defendant bears the burden of showing the error was prejudicial.

State v. Bowker, 2008 SD 61, ¶ 45, 754 NW2d 56, 69-70 (citations omitted). Plain error has been held applicable in "rare instances" in civil cases where a "ludicrous result" "may well invite ridicule of the entire judicial system . . .." See First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶¶ 18 & 19, 686 NW2d 430, 442 (superseded on other grounds in In re Estate of Duebendorfer , 2006 SD 79, 721 NW2d 438). There is no plain error here.

[¶12.] Edwards argues that the statutes utilized by the State to impound her cats presume the necessity of a warrant or court order before seizing the animals unless an extreme or emergency situation exists. She contends no such emergency situation was present in this case because her cats were being humanely treated and were in no apparent distress.

[¶13.] The State proceeded under SDCL 40-1-5:

Any peace officer, agent of the board, or agent or officer of any humane society finding an animal inhumanely treated, as defined in § 40-1-2.4, shall, pursuant to a warrant or court order, cause the animal to be impounded or otherwise properly cared for, and the expenses of such impoundment or care shall be a lien on the animal to be paid before the animal may be lawfully recovered.

However, a warrant or court order is not necessary if the animal is severely injured, severely diseased, or suffering and any delay in impounding the animal would continue to cause the animal extreme suffering or if other exigent circumstances exist.

If any animal is impounded or subjected to other action under this section without a warrant or court order, the officer or agent shall subsequently show cause for the impoundment or other action to the court, and the court shall issue an order ratifying the impoundment or action; or, if sufficient cause for the impoundment or action is not shown, the court shall order the return of the animal to the owner or other appropriate remedy. (Emphasis added).

[ΒΆ14.] "Statutes are to be accorded their plain meaning and effect." Premier Bank, N.A. v. Mahoney, 520 NW2d 894, 896 (SD 1994) (citing State v. Ohlmann, 444 NW2d 377, 378 (SD 1989)). The plain language of SDCL 40-1-5 emphasized above allows ...


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