Dog Case Shakes Up Legal System
Posted on Nov 21, 2006 - 11:42 AM
Dog case shakes up legal system
November 17, 2006
By PATRICK McARDLE Herald Staff
BENNINGTON — The fate of 32 German shepherds found in a school bus in Bennington is likely to reverberate through the state next year with the owner's attorney promising to go to the Vermont Supreme Court and a state Senate leader saying the case may spur new legislation.
Larry Mason and his public defender, Frederick Bragdon, argued in Bennington District Court Thursday it would be unconstitutional for anyone to spay or neuter Mason's dogs before his appeal options are exhausted.
Mason was in court this week for a forfeiture hearing. The state is trying to convince District Court Judge David Howard to take Mason's dogs away from him permanently.
Howard did not issue a ruling at the conclusion of arguments Thursday and said a decision would come next week at the earliest.
Meanwhile, two misdemeanor counts of animal cruelty that have been filed against Mason are scheduled to be heard in court next month.
The forfeiture hearing and the criminal charges arise from the same set of facts. In July, Bennington police discovered a large number of dogs that had been left, unattended, inside a school bus. Mason owned the dogs, and had been traveling with more than 30 of them from New Hampshire on his way to the western United States.
Authorities seized the animals and Mason has not seen them since.
Vermont law once held that even if a court granted a prosecutor's request to take an animal away from its owner, the owner could delay the order while an appeal was filed.
But during the 2003-04 Legislative session, the law was changed to read, "An order of the district court under this section may be appealed as a matter of right to the supreme court. The order shall not be stayed pending appeal."
Bragdon said he planned to file a motion on Monday with the Vermont Supreme Court arguing the law is unconstitutional. The motion likely would be premature, however, because Howard has not yet issued an order.
Bragdon said his client wants to act quickly, however, and he is concerned it may be too late to seek a remedy if he waits for an order. According to Bragdon, Mason breeds his German shepherds and if the state takes the dogs away and gives them to others before an appeal is heard, the new owners may spay or neuter the animals.
The judge pointed out that courts routinely award custody of children even while an appeal is pending.
"But they're not going to be spayed or neutered, judge," Bragdon said.
The law at the heart of the case came through the Senate Judiciary Committee, whose chairman, Sen. Richard Sears, D-Bennington, defended the statute.
Sears said the law was amended to protect animals from neglectful or abusive situations.
He said, and Bragdon agreed, that the change was inspired by several cases in Windham County.
In 2002, authorities seized nine dogs, five cats and a goat from Michelle Eldredge after the animals were found living in a dark, garbage-strewn house.
Earlier this year, a district court judge in Brattleboro ordered the forfeiture of more than 15 dogs and several cats belonging to Jesse-Lynn Gentlewolf, of Townshend. The animals were found unattended in Gentlewolf's home in 2005, according to court records. The case against Gentlewolf is pending.
Bragdon said he wasn't certain why the Legislature changed the law. But he said he would be "terribly surprised" if it wasn't because of the cost of boarding and feeding the animals while an appeals process is heard.
Bennington has spent more than $20,000 on medical care, food and other expenses for Mason's dogs since they were seized in July.
Sears, however, said expenses had nothing to do it. "In drafting the law, I don't recall taking into consideration or hearing any testimony on the cost or who would bear the cost," he said.
Bragdon is arguing the judge must consider the condition of each dog individually, and may not order forfeiture of the entire group of animals based on what the state alleges is a pattern of neglect. Sears said that argument concerns him.
"I've spoken to legislative council and we're going to be keeping an eye on this," he said. "My job as the judiciary committee chairman is to make sure there are no loopholes and if there are any, to close them to make sure the animals are protected."
On Thursday, Mason took the stand at the forfeiture hearing and disputed the state's witnesses, who testified he had kept his dogs in crates that were too small. He said what some had called feces on the animals' fur, and on their food and water dishes, actually was dirt. His dogs tracked in the dirt because they spend so much time outdoors in natural environments, he said.
When he questioned Mason, Bennington County Deputy State's Attorney Andrew Costello questioned his fitness to own dogs, asking how well the dogs were fed and whether Mason could accurately keep a count of the German shepherds in his possession.
Two veterinarians who examined the dogs testified on Wednesday the dogs were generally underfed.
Contact Patrick McArdle at Patrick.firstname.lastname@example.org