5 NICS App. 96, ANDERSON v. HARRIS (January 1999)
IN THE SHOALWATER BAY TRIBAL COURT OF APPEALS
SHOALWATER BAY INDIAN RESERVATION
TOKELAND, WASHINGTON
James Anderson, Appellant,
v.
Sabrina & Michael Harris, Appellees.
No. SHO-CIV-06/98-17 (January 27, 1999)
SUMMARY
Appellate Court holds that the trial court erred in its decision to destroy Appellant’s pet Rottweiler because there was no evidence that Appellant “caused, permitted, or allowed” his dogs to escape his enclosure to “harass, injure, or kill” Appellee’s cat. Pursuant to the Shoalwater Bay Tribal Code, the Court of Appeals has the ability to expand the record and allow presentation of additional evidence if the evidence which was not available at the time of the trial court proceeding and if refusal to consider the evidence would result in a clear injustice. Additionally, to authorize the destruction of a dog or other animal under Shoalwater Bay Code, Title 13, the courts must find a violation of the animal control ordinance in addition to a finding that the animal is a threat to the safety or health of the community. Reversed.
FULL TEXT
Before: Charles R. Hostnik, Chief Justice; Lisa E. Brodoff, Justice; Robert McCarthy, Justice.1
Appearances: James Anderson, Appellant, pro se; Sabrina Harris, Appellee, pro se.
Per curiam:
This case involves an appeal of a trial court order placing a dog on death row. This matter has had a curious procedural history, which bears relating.
James Anderson owns two dogs who were approximately one year old at the time of the incident. When Mr. Anderson and his family were not home, the dogs were routinely kept within his fenced backyard. A gate through the fence was normally fastened with two hook latches at the top and bottom of the non-hinged side of the gate, a log along the bottom of the gate, and two stumps
5 NICS App. 96, ANDERSON v. HARRIS (January 1999) p. 97
behind the log to hold the gate and log in place.
On June 2, 1998, Mr. Anderson returned home to find the gate had been unlatched and pushed open. Both dogs were missing. He looked in the immediate vicinity of his home and called for them, without results. He then returned to his home, locked everything up and went out the front door of his home to go look for his dogs. At that point, one of the dogs came bounding into the yard, and he discovered his son had the other dog by its collar. In the vicinity of the second dog, named Treasure, he discovered the cat owned by Mr. and Mrs. Harris, which was dead. His son had found Treasure rolling on its back on or near the dead cat.
Mr. Anderson secured his dogs, buried the cat, and immediately attempted to contact Mr. and Mrs. Harris. Both Mr. and Mrs. Harris were working, but Mr. Anderson was able to talk with Mr. Harris at his place of employment. Mr. Anderson notified Mr. Harris that somehow the gate in his yard was opened, his dogs had gotten loose, and it appeared that one of the dogs had killed their daughter’s cat. Mr. Anderson offered to pay for the cat, or to obtain a replacement cat for their daughter. However, Mr. and Mrs. Harris indicated they had several other cats and they therefore declined those offers. At the time of trial Ms. Harris testified that she was concerned that the dog may injure her daughter.
The trial court entered an order dated June 10, 1998, which stated in part as follows:
Mr. Anderson’s Rottweiler killed Ms. Harris’ cat in her yard. The dog escaped from his fence. Mr. Harris has taken precautions to remedy the possible future escape. The court finds that no safety measures short of 24 hour chaining of animal will remedy situation. Dog is unpredictable and owner is not able to control dog.
Based on those findings the court entered an order requiring the dog to be removed within 30 days. That order went on to state: “If not done in this time frame, the dog shall be impounded and disposed.” See Judgment Order of June 10, 1998.
This case was unusual in that the prevailing party, Ms. Harris, was the one that encouraged Mr. Anderson to appeal the trial judge’s decision. Ms. Harris elected not to file an appellate brief opposing the relief requested by Mr. Anderson.
I. SCOPE OF REVIEW
Under the Shoalwater Bay Appellate Code, this Court is to limit its review to the record of the proceedings below, errors of law and procedure argued in the written briefs, and the oral argument presentation. Shoalwater Bay Appellate Code, §19.03.030. The Court of Appeals does have the ability to expand the record and allow presentation of additional evidence, if the evidence was not available at the time of the trial court proceeding, and if refusal to consider the evidence would result in a clear injustice. Shoalwater Bay Appellate Code, §19.08.070.
5 NICS App. 96, ANDERSON v. HARRIS (January 1999) p. 98
At the time of oral argument, Mr. Anderson had available pictures of his dog and of the additional security measures he has installed since this incident occurred on June 2. The pictures were first reviewed by Ms. Harris, who had no objection to allowing the appellate panel to view those photographs and the notations on each of the photographs.
These photographs did show additional evidence which was not available at the time of the trial court proceedings. The photographs assisted the Court of Appeals in understanding some of the trial testimony, and in visualizing the gate which allowed the dogs to escape. Introduction by testimony by Mr. Anderson concerning additional security measures taken to secure his dogs since the time of the incident, taken together with the photographs, was not objected to by Ms. Harris, and would have resulted in an injustice to the parties in this appeal by not permitting the Court to take all relevant facts into account prior to rendering this decision. Therefore, we find that the introduction of additional evidence by testimony and photographs was appropriate under §19.08.070 of the Shoalwater Bay Appellate Code.
II. DISCUSSION
Shoalwater Bay has enacted an animal control ordinance in Title 13 of the Shoalwater Bay Code. That ordinance places responsibility for damage on the owner of an animal:
13.01.010 RESPONSIBILITY FOR ANIMALS: Any person who owns or has under his control any animal shall be responsible for:
a) Damage to persons or property caused by the animal; and
b) Providing proper medical care, vaccinations, food, water, and reasonable supervision and care for the animal.
Shoalwater Bay Tribal Code, §13.01.010. In this case, Mr. Anderson immediately took responsibility for the killing of the cat, based upon the fact that his dog was found in the vicinity of the cat. There is no evidence in the record that, in fact, Mr. Anderson’s dog killed this cat. Mr. Anderson simply assumed that is what occurred and therefore, took responsibility as the owner of the dog. He buried the cat, immediately contacted the cat owners, offered to pay for the cat, and offered to obtain a replacement cat for the Harris’ daughter. These offers were genuine, and it is apparent from the record that Mr. Anderson felt terrible that this tragedy had befallen the Harris family. These actions show that Mr. Anderson met his duty under §13.01.010 to be responsible for damage caused by his dog.
The trial court decision, however, was not based upon the above section of the animal control ordinance. Instead, the trial court’s decision was based upon §13.01.030(d), which states:
5 NICS App. 96, ANDERSON v. HARRIS (January 1999) p. 99
13.01.030 ANIMAL CONTROL: No person shall cause, permit, or allow any animal he or she owns or which is under his or her control to:
. . .
d) Harass livestock and other animals;
. . .
Shoalwater Bay Tribal Code, §13.01.030 (in part). We do not find that the record supports the trial judge’s conclusion that a violation of §13.01.030(d) occurred.
At trial Mr. Anderson testified:
. . . I noticed my gate had been opened. There are two latches and both were open and it was actually pushed open, where I have these logs in the way just in case. So, somebody got into my backyard, pushed the gate open, left it unlocked and didn’t close it, and that’s how the dogs got out.
Transcript, p. 4, lines 8-12. There is no evidence in the record that Mr. Anderson caused, permitted, or allowed his dogs to escape the enclosure to harass, injure, or kill the Harris cat. In fact, the record is quite to the contrary.
Mr. Anderson took reasonable measures to insure that his dogs remained in the backyard. Subsequent to the date of the incident, Mr. Anderson strengthened those measures. His dogs are now chained when he is not home. The gate is now padlocked, and Mr. Anderson has the only key. The dogs are kept, chained, within an interior enclosure inside the backyard. In fact, Ms. Harris has acknowledged the extraordinary lengths to which Mr. Anderson has gone to insure that an unfortunate incident like this does not recur. By the time of oral argument, Ms. Harris indicated that she was no longer in fear of her daughter’s safety, and she acknowledged that Mr. Anderson has done all he could to take responsible measures to be sure that his dogs do not leave the backyard.
Based upon the foregoing, we cannot find that a violation of §13.01.030(d) of the Shoalwater Bay Tribal Code is supported by the evidence in the record. Since no violation of the code has occurred, then there is no basis for a civil penalty under §13.01.060 or §13.01.120 of the Shoalwater Bay Code.
III. REMEDY
Any dog found in violation of the animal control ordinance is authorized to be seized or impounded by Shoalwater Bay law enforcement officers under §13.01.130. Violation of the code also authorizes destruction or immediate permanent removal of the animal if the animal is found to be a threat to the safety or health of the community. See Shoalwater Bay Tribal Code, §13.01.120(b).
5 NICS App. 96, ANDERSON v. HARRIS (January 1999) p. 100
We note that to authorize the destruction of a dog or other animal under this code, a higher standard must be met. In addition to finding a violation of the animal control ordinance, a court must also find that the animal is a threat to the safety or health of the community. This additional inquiry is required before the court is authorized to order destruction or immediate permanent removal of the animal from the Shoalwater Bay community.
We need not determine whether Mr. Anderson’s dog was a threat to the safety or health of the community, because we find that the record does not support a violation of the animal control code. We leave it to a future case to determine the circumstances under which an animal can be found to be a threat to the safety or health of the community, justifying an animal death penalty.
IV. CONCLUSION AND ORDER
This case is an extraordinary example of neighbors working together to solve a problem. Mr. Anderson genuinely felt terrible about the situation. He assumed his dog caused the death of the Harris cat, and did all he could to alleviate the situation by taking care of the cat, notifying Mr. and Mrs. Harris, and offering restitution. Mr. Anderson then went to extraordinary lengths to make sure that such an unfortunate incident did not recur. Ms. Harris recognized those efforts, appreciated those efforts, and for all practical purposes joined with Mr. Anderson in requesting this Court not destroy Mr. Anderson’s dog.
At the conclusion of the oral argument, the parties embraced. The parties have discovered and achieved peace and harmony in solving the situation in a manner which was mutually beneficial. This Court will not upset that peace and harmony.
The trial court order requiring immediate impoundment and destruction of Treasure is hereby reversed.
Justice McCarthy was unable to appear for the oral argument of this action. Both parties waived their right to have a three-judge panel hear the oral arguments. Based up on a review of the record, and consultation with the other two justices, however, Justice McCarthy joins in this Opinion.