In the much-discussed case of Estella Robinson v. Bluefield (click the links for our previous coverage), Justice Benjamin has now filed a concurrence, making four different opinions filed in the case. Justice Benjamin made explicit what many sense about the case -- it is an emotional one. He nevertheless emphasized the need to set the emotion aside and conduct a legal analysis of the issue:
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.
Justice Benjamin's concurrence argues his view that the Legislature has made it reasonably clear that "dogs are different" from other animals subject to regulation. He pointed out, along with the Court's Opinion, that the higher level of accountability and legal training required of Magistrate Judges and Circuit Judges could reasonably explain the differences in how the Legislature has treated dogs. He also directly confronted the practical objections of the dissenting justices, who worried that the dog in question, Major, had shown himself to be a serious threat, with a simple solution:
Should a municipality wish to have a dangerous dog destroyed, it need only present its case to a local magistrate or circuit court.
No one can dispute the point Justice Benjamin made right out of the box in this case -- it is an emotional one. He even canvassed law around the country that increasingly allows for non-economic damages -- including damages for grief and sorrow -- for the "wrongful death" or tortious loss of a pet. West Virginia currently has not allowed such damages since Carbasho v. Musulin was decided in 2005. I have to wonder if this Court would stick to that (rather dog-unfriendly) view of the law today?