Animal Law Update

After Judge Denies Maine Governor’s “Pardon,” Last-Minute Appeal Temporarily Saves Dog Sentenced to Death

By Nicole Pallotta, Academic Outreach Manager

In an unprecedented case that has gained national attention, the fate of a four-year-old husky named Dakota remains uncertain after she received a gubernatorial “pardon” – perhaps the first of its kind – in her case. Ultimately, the case will likely end up in Maine’s highest court, known as the Law Court.

The death order was issued against Dakota on March 21, 2017, after she attacked two smaller dogs, one fatally. Dakota was declared a dangerous dog in 2016 after getting loose and killing a neighbor’s Shih Tzu terrier, who was named Zoey. Pursuant to Maine’s dangerous dog statute, her owner at the time, Matthew Perry, was ordered to keep Dakota confined in a secure enclosure, muzzled, and restricted by a short leash under his direct control when off the premises. However, Perry gave Dakota away to a person living in another town who let her run at large, according to the Bangor Daily News. In February 2017, she returned to Perry’s neighborhood and attacked a pug named Bruce Wayne on the same property where the original incident occurred.

Following the second attack, Dakota was picked up as a stray and brought to the Humane Society Waterville Area (HSWA). She was then adopted out to a new owner, Linda Janeski, on March 18, three days before a hearing at which the death order was issued. According to Lisa Smith, director of the HSWA, Janeski was chosen as the adopter because she had been around Dakota as a puppy. Janeski’s daughter was dating Perry when he got Dakota, and Perry kept the dog when they broke up. Janeski has alleged that Perry mistreated Dakota and locked her in the basement to kill rats.

Janeski agreed to keep Dakota confined in accordance with the earlier court-ordered restrictions, but neither she nor the shelter reportedly were aware of the second attack or the hearing that had been scheduled for March 21 to determine Dakota’s fate under Perry’s ownership at the time of the second incident. Janeski learned that Dakota had been sentenced to death when, less than a week after she brought the dog home, an animal control officer came to her door and ordered her to have the dog killed within 48 hours. When the officer learned Dakota was still alive after this time period, he issued a search warrant for the Janeski residence and animal control officers seized Dakota and took her back to the HSWA.

In seeking due process, Janeski requested a second hearing to be heard as Dakota’s new owner and contest the death order, which had been issued under a presumption of Perry’s ownership of the dog. A stay was granted and a new court date scheduled for April 11, 2017.

Before the second hearing, the HSWA wrote a letter to the Kennebec County District Attorney’s Office on Dakota’s behalf that described her as well-behaved and sociable, stating:

“While at the shelter she was a model resident, extremely friendly, social with other dogs, and easy for staff to handle. We observed no aggression of any kind and trained staff deemed the dog did not display any concerning behaviors…We have found her to be an excellent dog, extremely people friendly, and generally dog friendly.”

On March 30, it appeared Dakota’s life would be spared and she would be given a second chance with her new owner when Maine Governor Paul LePage issued the dog a “warrant of full and free pardon” after receiving a copy of this letter. Believed to be the first such intervention by a governor on behalf of an animal condemned to death, Gov. LePage’s pardon reflects the evolution of animal law. However, questions were immediately raised about the validity of this pardon due to uncertainty about whether Maine’s constitution grants its governor the authority to pardon animals, who are classified as property under the law in all 50 states.

Although the governor’s unusual action could be seen as signaling a softening in the rigid legal paradigm that defines animals strictly as property, Kennebec County District Attorney Maeghan Maloney called the pardon “irrelevant,” claiming the governor did not have the power to issue a pardon in this case because Dakota had not been convicted of a crime.

Further signaling the importance of this case, the Maine Department of Agriculture, Conservation and Forestry (DACF) sent a letter to the court in advance of the second hearing expressing its interest and offering assistance because of the broad public interest in the case and possible implications it may have on the work of the DACF’s Animal Welfare Program. In his letter on behalf of the state agency, Assistant Attorney General Mark Randlett stressed the following points:

  1. DACF seeks to ensure that animal owners are afforded due process and a fair chance to defend themselves and their animals;
  2. The purpose of the animal welfare laws is to safeguard the humane and proper treatment of animals. DACF has a strong interest in holding the original owner(s) responsible and ensuring that animals do not suffer due to owner neglect.
  3. The intent of the dangerous dog statute is to protect the public by deterring owners of dangerous dogs from letting them run loose. It is not intended as a punishment for a dog, in this case Dakota; and
  4. Dakota is less of a public safety risk given the reliability of the SAFER behavioral testing conducted on Dakota at the Waterville Area Humane Society.

These points – perhaps especially that a dog should neither suffer nor be punished due to an owner’s neglect – reflected the concerns of many watching this case.

Yet despite the state agency’s letter, the HSWA letter vouching for Dakota, and the governor’s pardon, at the April 11th hearing Waterville District Court Judge Valerie Stanfill denied the new owner’s request to withdraw the death order. In so ruling, Judge Stanfill found that Maine’s dangerous dog statute did not give her the discretion to impose any other punishment besides death for the dog and a fine for the owner. She also ruled that Janeski lacked standing under state law to intervene in the case because Perry owned Dakota at the time of the second incident.

Responding to criticisms of the harsh sentence, Kennebec County District Attorney Maeghan Maloney pointed out that Maine’s dangerous dog statute is very clear regarding an animal who has attacked and killed another animal and then initiates a second serious attack. She claimed that both she and the judge followed the statute exactly as written, and the only alternate remedy would be for the state legislature to change the law.

The next day, after Dakota reportedly had already been taken to a veterinarian’s office to be given a lethal injection, word of an appeal filed by her former owner, Matthew Perry, came through at the last minute and temporarily spared the dog’s life. The appeal, filed in Augusta District Court on April 12, argues that the court not only erred in issuing the original death order, but also that it was wrong to keep the order in place after Dakota received a pardon from the governor. Linda Janeski, the dog’s current owner, filed a second appeal on April 14, 2017.

While those appeals were pending, on April 18, 2017, a new attorney for Matthew Perry filed a motion for reconsideration in the trial court that argued additional evidence was available that should be considered by the trial court as well as presenting additional reasons why the governor’s pardon properly applied to the dangerous dog order at issue. Perry’s attorney also filed a motion requesting a stay of appeal with the Law Court to allow the trial court to consider the motion to reconsider before the appeal proceeded. The trial court has yet to issue any order regarding whether it will reconsider its prior order.

As the motion to reconsider demonstrates, the governor’s pardon will play a key role in this case. Although some believe a pardon cannot be applied to an animal, others point to the broad power and wide leeway given to the governor to grant pardons under the Maine Constitution, which does not contain any species limitation and provides a broad grant of authority to the governor in a variety of contexts. The relevant section states:

“The Governor shall have power to remit after conviction all forfeitures and penalties, and to grant reprieves, commutations and pardons, except in cases of impeachment, upon such conditions, and with such restrictions and limitations as may be deemed proper, subject to such regulations as may be provided by law, relative to the manner of applying for pardons. Such power to grant reprieves, commutations and pardons shall include offenses of juvenile delinquency.”

Janeski’s attorney, Bonnie Matinolich, has also expressed due process concerns with regard to the rigidity of the dangerous dog statute in a context where the outcome is irreversible.

The irreversible outcome – the state taking away an animal’s life under the objections of the animal’s owner – suggests there should be room built into these laws for extenuating circumstances to give judges greater discretion and to allow potentially impacted parties a better opportunity to build a case. Dakota was ordered killed within 48 hours of the March 21 order, and the same timeframe applied after the second decision on April 11. Although her new owner intended to file an appeal (and has now done so), Dakota only narrowly escaped being killed due to the appeal from her former owner, which, although filed within 48 hours, was almost too late to stop the sentence from being carried out.

As with criminal cases involving humans, a just outcome requires balancing the rights of the victim (and the victim’s family) with the rights of the accused. While many believe Dakota deserves another chance with a new and hopefully more responsible owner, it is important to remember the victims in this case and the tragic death of Zoey, who was loved and did not deserve to die in this manner. According to District Attorney Maloney:

“…one owner had to hold Zoey in her lap in the car, hurt and crying, for one hour while they drove from Waterville to Portland to get her help. When they got to Portland, Zoey had died, she said. I can’t even imagine going through that,’ said Maloney, who is a dog owner herself. ‘And then for it to happen a second time.’”

Although everyone can agree this appalling situation should never have happened, some would argue the fault lies less with Dakota than with her former owner, who clearly did not keep her contained, and may also have mistreated her. The allegations that the former owner locked Dakota in a basement and made her kill rats would, of course, explain why Dakota might attack a small dog, or any other small animal. Yet, in cases of owner negligence, although the owner may receive a fine, it is the dog who is punished with the ultimate penalty of death.

While Zoey can sadly never be brought back to her family, is taking Dakota’s life the correct action to ensure this will never happen again? Although the Maine legislature seems to have answered that question affirmatively with its statutory language, more could be done to encourage greater responsibility and understanding when it comes to owners managing their dogs’ behavior, such as orders that prohibit irresponsible owners from obtaining additional dogs and forfeiture authority to rehome dogs to responsible individuals.

The legal owner, who in contrast to a dog is responsible for complying with the rules of human society, should be held to a higher standard for the dog’s actions rather than punishing the dog, who may only have acted inappropriately due to the failure of the owner, especially when the stakes are as high as taking a life. A similar principle is well-established regarding parental responsibility for children’s actions, until a certain age when they are deemed capable of understanding social norms and laws. Dogs never reach this point. In 2005, the United States Supreme Court ruled the execution of those who were under 18 at the time of their crime unconstitutional, in part based on scientific understanding of brain development. Even beyond childhood, the law regarding younger criminal offenders continues to evolve based on advances in cognitive neuroscience. In 2002, the U.S. Supreme Court ruled executions of mentally disabled offenders are prohibited by the Eight Amendment as “cruel and unusual punishment,” in part due to a societal consensus on their lesser culpability. Similarly, it is only fair to take a dog’s cognitive capacity into account, and the degree to which they are dependent upon their guardian to learn how to live in a human world and abide by its rules when asking the question: how should courts and legislatures ideally handle cases involving animals who attack or kill other animals?

Some animals may be incapable of being rehabilitated, but when in the hands of the state, this decision should not be made lightly or by rote because of both due process concerns for the owner, who has both legal and strong emotional interests that should be considered, as well as the individual animal’s intrinsic value and interest in being alive (which is not yet recognized by the courts).

But Dakota is not such a hopeless case. The glowing behavior report given by shelter staff and the promise of a new owner who could enforce the rules that Dakota’s former owner did not, are significant extenuating factors that demonstrate Dakota is, in fact, not a danger to the public.

As for the governor’s pardon, the rationale given by District Attorney Maloney that Dakota cannot be pardoned because the dog was not charged with a crime may seem logical at first. Animals, as property, cannot be convicted of a crime. Yet as we delve deeper we may realize the absurdity of Dakota being ordered to be put to death without being charged with a crime. This may seem like quibbling over semantics, but in matters of life and death it is worthy of examination. If animals cannot commit crimes, should they be punished in such a severe and irreversible manner for triggering a dangerous dog law they are not even aware of (but their owners should be)? There is an inherent contradiction in sentencing an animal to die – the most severe penalty in our legal system – while at the same time claiming she cannot be pardoned because she has not been convicted of a crime.

The Animal Legal Defense Fund will watch closely to see how Maine’s highest court resolves these issues if it hears the case. A statewide Animal Welfare Advisory Council has also begun reviewing Maine’s dangerous dog laws, but it remains to be seen what, if any, changes will be made in the next legislative session. Meanwhile, Dakota remains at the shelter awaiting her fate, unaware of the controversy swirling around her. Regardless of the outcome, this case shines a spotlight on the essential problem with many dangerous dog laws: They are often overly harsh, so rigid as to hinder adequate due process, and punish dogs for displaying natural behaviors rather than holding accountable the owners who are responsible for them.

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