A Bluefield animal control officer responded to a complaint of dogs running at large at Estella Robinson's home. While investigating at the home, Ms. Robinson's dog, Major, broke free from his chain and bit the officer, Randall Thompson, on the hand.
Bluefield brought charges against Ms. Robinson in municipal court, claiming that she had a "dangerous animal" in violation of a city ordinance. Ms. Robinson pled guilty and the Court, after receiving the plea, ordered that Major be killed. A 30-day stay was granted during which the municipal court allowed Mrs. Robinson to 1) find a home outside Bluefield for the dog and/or to 2) find an expert who would opine that the dog was "rehabilitated." Ms. Robinson found the home, but not the expert, and the municipal court again ordered that Major be killed, saying that, to be spared, Major needed both a new home and an expert on his rehabilitation.
Mrs. Robinson appealed to Circuit Court, challenging the authority of a municipal court to order the death of a pet dog. In addition, Ms. Robinson eventually found an expert on Major's rehabilitation, but the City continued to pursue its order that Major be executed.
May an municipal court order that a dog it has found to be dangerous be killed?
The Court analyzed the City's arguments that relied on a general grant of authority in West Virginia Code section 8-12-5(26). This code section permits municipalities to "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." Id. This language was "so far, so good" for the City's argument.
But the Court pointed out that the Legislature enacted a separate, specific legal framework for dogs. Dogs are different, because under West Virginia Code section 19-20-20, a dog may be killed only "[u]pon satisfactory proof before a circuit court or magistrate that such dog is vicious, dangerous, or in the habit of biting. . . " Id. The Court found that this more specific language must control the general grant of authority and that a municipality seeking the death of a dog must make its case in magistrate court or circuit court, citing Phillips v. Larry’s Drive-In Pharmacy, Inc., 220 W.Va. 484, 492, 647 S.E.2d 920, 928 (2007) (when a statute described that a particular thing must be done in a particular way, it shall control). The Court also noted that municipal judges are not elected as magistrates and circuit judges are, and the difference in accountability to the people warranted and explained the legislature's requirement that the fate of a pet dog be decided only by elected judicial officers. Opinion at 9.
Ultimately, the Court held that its decision in Durham v. Jenkins, 229 W.Va. 669, 674, 735 S.E.2d 266, 270 (2012), controlled the process by which a circuit court or magistrate must proceed in a case involving the fate of a dog alleged to be dangerous:
For a magistrate or circuit court to obtain authority to
order a dog killed, the magistrate or judge must first find,
upon conducting a criminal proceeding, that a crime
described in the first sentence of § 19-20-20 has been
committed. This Court holds that the authority to order a dog
killed pursuant to W.Va.Code § 19-20-20 (1981), stems
solely from a criminal proceeding, and a private cause of
action may not be brought for the destruction of a dog under
Justice Loughry and Justice Workman dissented, and as of this writing, Justice Loughry's dissent has been filed. Justice Loughry lamented the decision of the Court, stating that "not all dogs are like the beloved Lassie [and], a vicious dog has been granted a pardon by the highest court of this State." Dissent at 1. Justice Loughry's dissent argues that the general municipal authority statute and the dog-specific statute do not actually conflict and that either one can therefore be relied upon in a proceeding seeking the death of a dog. Justice Loughry indicated that the Court's decision was "ill-advised" and "unsound" and that the Court's decision might "effectively sanction future and potentially fatal attacks by vicious dogs upon unsuspecting children as they walk to school within a city’s limits?" Dissent at 9.
Animal lovers will be happy to hear that a dog has had its day, while others may be concerned, as Justice Loughry said he was, about the level of authority in our municipal courts, but the case presents an interesting twist on an old rule of statutory construction. The Court has repeatedly held that “[t]he general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter[.]” Syllabus Point 1, in part, UMWA by Trumka v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984).
But in this case, Justice Loughry's dissent adds a layer to that rule -- a layer of "conflict." In his view, it was not enough that the dog statute was more specific that the general municipal animal control statute -- it clearly was. He emphasized that there was no conflict between the two provisions and that both could therefore operate. The issue of "conflict," however, has more in common with preemption jurisprudence than the old statutory-construction rule of Trumka. So it could indicate a willingness on the part of at least one Justice to modify that rule and interpret statutes bearing on the same subject in terms of preemption principles, rather than the ordinary principles of statutory construction.
In any case, for the time being at least, Major, the dog from Bluefield, has outrun the long arm of the law and earned a Supreme Court win.