The fate of two pit bulls condemned to die after they attacked and killed a Boston bull terrier and injured its owner last year in Winslow now rests with the Maine Supreme Judicial Court after justices considered on Friday the appeal of the kill order.
At issue is whether the Maine forfeiture laws that apply to property should include family pets, and whether the decision to euthanize pets that are deemed to be dangerous should be decided by a jury rather than a judge.
The dogs, Kole and Bentley, have been held at the Humane Society of Waterville Area, the same animal shelter where Dakota, the husky pardoned by Gov. Paul LePage was held, since Aug. 31, 2016. That day, they escaped the fenced yard of their owner, Danielle Jones, and attacked a woman walking her 10-month-old puppy, Fergie Rose, the briefs filed in the appeal said.
The Boston bull terrier died a short time later at a local vet’s office. The owner was bitten on both hands and had scratches on her back from trying to get the pit bulls from her much smaller dog, the briefs said. The attack and its aftermath was witnessed by five neighbors and was captured on surveillance cameras at Jones’ house.
Jones was charged with two counts of keeping a dangerous dog, a civil violation that carries a fine of $250 per count. District Court Judge Eric Walker held a jury-waived trial Nov. 28 and 29 in Augusta. He ruled that because the dogs had attacked and injured a dog in May 2015, they were dangerous and Maine law required that they be euthanized at the owner’s expense. That order was stayed when Jones appealed the decision.
On Friday, Attorney Richard Rosenthal of Oceanside, New York, argued that a jury rather than a judge should decide if healthy pets should be put to death because, although pets are legally considered to be property, they are considered by many owners to be family members.
“Because this is a quasi-criminal infraction, owners should be entitled to a jury trial,” he said.
Rosenthal, who founded the Lexus Project to save dogs from being euthanized, worked with Portland attorney Bonnie Martinolich on the appeal.
Kennebec County Assistant District Attorney Tracy DeVoll told the justices that Jones could have opted for a jury trial it she had paid the $300 fee required in civil cases, but a judge still would have decided whether the dogs should be put down. The prosecutor also said that state law required that a kill order be issued because the dogs attacked a second time.
The questions asked by the justices, who convened without Chief Justice Leigh I. Saufley, focused on the vicious nature of the attack and the fact that Rosenthal had raised issues in the appeal that were not considered by the judge.
“Judge Walker said in his order that he felt compelled to put down the dogs due to the historic failure of the owners to keep dogs under control,” Justice Ellen Gorman pointed out.
Justice Jeffrey Hjelm said that it was not the role of the appellate court to change the law.
“What we do at the appellate level is to determine if what the lower court judge did was correct,” Hjelm told Rosenthal. “You are raising issues never raised before. That is not what we do.”
But Justice Andrew Mead said that it might be time to look at forfeited pets differently than other property seized in civil actions.
“Should the state be taking a beloved family pet away from its owners?” he said. “Shouldn’t we treat them differently than a boat?’ he asked DeVoll.
The prosecutor said that Jones received due process from the time she was summonsed through the trial.
“The dogs were ordered put down because they are a danger to the public,” DeVoll said.
The justices heard oral arguments at Mountain Valley High School in Rumford during their annual fall road trip. The high court convened Thursday at Freeport High School and will be at Westbrook High School on Oct. 25. At each school, the justices considers arguments in three unrelated cases.