CITY OF ONIDA, SD, a political subdivision of the State of South Dakota, v. KASSIE JEAN BRANDT and TYCE BERTRAM MEYER
#29332-a-SRJ
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
OPINION FILED 04/28/21
2021 S.D. 27
THE HONORABLE M. BRIDGET MAYER, Judge
CONSIDERED ON BRIEFS JANUARY 11, 2021
EMILY J. SOVELL, Sovell Law Office, Onida, South Dakota
ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck & Hieb, LLP, Aberdeen, South Dakota, Attorneys for plaintiff and appellee.
GAVIN D. POCHOP, STEPHANIE E. POCHOP of Johnson Pochop & Bartling, LLP, Gregory, South Dakota, Attorneys for defendants and appellants.
[¶1.] The City of Onida (City) filed a petition for declaratory judgment seeking authorization from the circuit court to euthanize two dogs owned by Kassie Jean Brandt and Tyce Bertram Meyer (Appellants) as “vicious animals” under ONIDA, S.D., REV. ORDINANCES Title VII, ch. 5 (2010) (Ordinance), or alternatively, based upon a determination that the dogs were dangerous under
Facts and Procedural History
[¶2.] Appellants reside in the City of Onida and own two black, Labrador-mix dogs. Prior to this action, they kept the dogs in a fenced-in area of their yard. On February 6, 2020, Appellants’ dogs attacked Mark and Fran McQuirk‘s (McQuirks) corgi-mix house dog. The attack occurred on the McQuirks’ property, just outside the door of their home. Shortly after the McQuirks let their dog outside, they heard a loud noise and found Appellants’ dogs attacking their dog.
The McQuirks both began to yell, hit, and kick Appellants’ dogs to stop the attack. The dogs eventually left after multiple attempts by the McQuirks to free their dog.
[¶3.] The McQuirks’ dog was treated for numerous wounds and internal injuries by a veterinarian. The dog died a few days later from internal injuries and complications from an infection caused by the attack. The veterinarian explained that the instinctual shaking of prey by a larger dog, once the larger dog has the prey in its mouth, causes observable, exterior bite wounds and internal injuries that are difficult to identify.
[¶4.] Testimony also revealed prior incidents involving the Appellants’ dogs. The first occurred in May or June 2018 when Appellants’ dogs ran up to an Onida resident, Laurie Miller, while she was working outside her house. The dogs were barking loudly and standing near her. Miller testified that she froze and believed the dogs were going to attack her. The dogs eventually retreated on their own. A second incident occurred in June 2019 when Appellants’ dogs attacked the McQuirks’ dog. When Mark McQuirk attempted to intervene, Appellants’ dogs bit him. There was also testimony that the dogs may have killed Appellant Brandt‘s pet cat.
[¶5.] The prior incidents involving Miller and the McQuirks were reported to the Sheriff, who also provided Ordinance enforcement for the City. Miller called the Sheriff immediately after the incident with Appellants’ dogs. When the Sheriff arrived at Miller‘s home, he found Appellants’ dogs in his own yard, which was near Miller‘s home and Appellants’ home, and put them back in their kennel. After Appellants’ dogs attacked the McQuirks’ dog in 2019, the Sheriff attempted to resolve the issues between the neighbors without taking formal action. He testified that, in hindsight, he should have taken action at that time and declared the dogs to be vicious under the Ordinance.
[¶6.] Appellants took remedial measures following the first two incidents to prevent the dogs from getting out of their kennel. They installed taller fencing and a bottom-wire electric fence with boards. Despite these improvements, the dogs escaped through a hole in the fence prior to the February 2020 fatal attack on the McQuirks’ dog.
[¶7.] After the attack, the Sheriff formally declared Appellants’ dogs “vicious animals” and gave written notice of this determination to Appellants, pursuant to the Ordinance, on February 12, 2020. On the same day, the City obtained a temporary restraining order to remove the dogs from Appellants’ home and place them at Lake Sharpe Kennels in Fort Pierre, South Dakota, until further order from the court.
[¶8.] After receiving the vicious dog notice, Appellants attempted to comply with the Ordinance by undertaking more kennel improvements and other steps required by the Ordinance. Appellants also had their dogs evaluated by a professional dog behaviorist. The dog behaviorist testified that
[¶9.] The City filed a petition for declaratory judgment requesting, among other relief, that Appellants’ dogs be determined vicious animals under the Ordinance and requested authorization from the court to require the euthanization of both dogs pursuant to the Ordinance. Alternatively, the City sought a determination of dangerousness under
[¶10.] The parties entered into a written stipulation concerning the issues and evidence to be presented at trial. The issues, as framed by the parties, included a request that the circuit court determine whether Appellants violated state and municipal laws, including
[¶11.] The court found Appellants violated
[¶12.] On appeal, Appellants challenge the City‘s authority to request that the Sheriff dispose of the dogs under
Analysis and Decision
1. Whether the City can proceed with animal regulation under State law after the circuit court denied relief under the Ordinance.
[¶13.] “The interpretation of an ordinance presents a question of law reviewable de novo.” Atkinson v. City of Pierre, 2005 S.D. 114, ¶ 10, 706 N.W.2d 791, 795. Our statutes expressly empower cities in South Dakota to “enact, make, amend, revise, or repeal’ ordinances they deem necessary to effect their authority.” City of Marion v. Schoenwald, 2001 S.D. 95, ¶ 6, 631 N.W.2d 213, 216 (quoting
[¶15.] Here, the Ordinance sets forth procedures for animals declared to be vicious. Ordinance Section VII.5.1 to 5.12. Upon notification that an animal has been declared vicious, the Ordinance requires the owner to comply with certain conditions to keep the vicious animal within the City. Ordinance Section VII.5.5, 5.7 to 5.9. If an owner fails to comply with the requirements for keeping a vicious animal, the City may require the owner to euthanize the animal pursuant to the Ordinance. Ordinance Section VII.5.11.
[¶16.] The Ordinance provides procedures for city officials to protect the community from vicious animals. The City‘s scheme appears similar to those implemented in other cities and to the common law “one-bite rule” for civil liability. See Blackwell, 2001 S.D. 127, ¶¶ 2-3, 635 N.W.2d at 583 (discussing a city ordinance governing dangerous animals). “The ‘first bite’ rule has been described as not literally a test for a prior bite but rather a test of the owner‘s superior knowledge of the dog‘s temperament.” 3B C.J.S. Animals § 369, Westlaw (database updated Dec. 2020).
[¶17.] While Appellants’ dogs had been involved in prior incidents, they had not been declared vicious animals under the Ordinance until February 12, 2020. Under these circumstances, the circuit court concluded that the City could not euthanize the dogs under the Ordinance. Neither party has appealed this determination by the circuit court.
[¶18.] The question presented on appeal is whether the circuit court could order the Sheriff to dispose of the dogs under
[¶19.] Appellants argue that the City improperly used a “hybrid” process that combined the Ordinance and state law to create a remedy in this case, and such a remedy was not available after the circuit court concluded the City could not proceed under the Ordinance. Contrary to Appellants’ claim, the City requested the removal and disposal of the dogs under two alternative legal theories: the Ordinance and state law. The circuit court found that the Ordinance could not offer relief because law enforcement had not provided Appellants written notice, prior to the fatal attack, that their dogs had been declared vicious. The court separately determined that the requirements of
[¶20.] Appellants also claim that the Ordinance was the only means of animal enforcement within Onida‘s city limits and that the City cannot rely on state law when it was not authorized to dispose of the dogs under the Ordinance. However, Appellants fail to cite any authority to support their claim that the City could not
[¶21.] Further, there is nothing that limited the Sheriff‘s authority within city limits.
The sheriff shall keep and preserve the peace within the county. The sheriff may call to aid any person or power of the county as the sheriff deems necessary. The sheriff shall pursue and apprehend all felons, and shall execute all writs, warrants, and other processes from any court or magistrate for which the sheriff has the legal authority.
(Emphasis added). This statute granted the Sheriff broad authority within the county and did not restrict his authority while acting within city limits. Compare
[¶22.] Finally, as the City correctly observes, accepting Appellants’ arguments would create a conflict between the Ordinance and state law. Under Appellants’ theory, the Sheriff would have been prohibited from disposing of the dogs under
[¶23.] Admittedly, this case is unique because the Sheriff wore two different hats as the City‘s code enforcement officer and as the chief law enforcement officer within the county. Despite the circuit court‘s conclusion that the City could not proceed to dispose of Appellants’ dogs under the Ordinance, the circuit court correctly found that this would not prevent the Sheriff from proceeding under
2. Whether the circuit court properly determined that the Sheriff could dispose of the dogs under SDCL 7-12-29 .
[¶24.] Appellants do not challenge the circuit court‘s determination that the dogs were dangerous under
[¶25.] At trial, there was no testimony showing that the Department of Health had been consulted concerning Appellants’ dogs, nor was there an attempt to consult with the Department of Health as part of
[¶26.] Appellants argue that the circuit court‘s reading of the statute was erroneous because
[¶27.] The interpretation of a statute is a question for the court and reviewed de novo. State ex rel. Dep‘t of Transp. v. Clark, 2011 S.D. 20, ¶ 5, 798 N.W.2d 160, 162. “One of the primary rules of statutory construction is to give words and phrases their plain meaning and effect.” Zoss v. Schaefers, 1999 S.D. 105, ¶ 6, 598 N.W.2d 550, 552 (quoting S.D. Subsequent Inj. Fund v. Cas. Reciprocal Exch., 1999 S.D. 2, ¶ 17, 589 N.W.2d 206, 209). “When the language of a statute is clear, certain and unambiguous, there is no occasion for construction, and the court‘s only function is to declare the meaning of the statute as clearly expressed in the statute.” Id.
[¶28.] The plain language of
[¶29.] The City‘s reading of
[¶30.] Undoubtedly, the text of
[¶31.] Nonetheless, we conclude the circuit court‘s error, in failing to require consultation with the Department of Health as part of its formal determination of dangerousness, was harmless. “[N]o error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice.”
[¶32.] There is no showing that the failure to consult with the Department of Health had any effect on the court‘s decision, or that it harmed the substantial rights of the Appellants. The circuit court found the dogs were dangerous under
[¶33.] We affirm the judgment of the circuit court ordering that “the Sheriff may now dispose of [Appellants’ two dogs] through humane euthanasia.”
[¶34.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.
Notes
The sheriff may take possession of any animal suspected of being dangerous. The sheriff may hold such animal until a formal determination can be made of the extent of the danger such animal poses. If the animal has attacked or bitten a human or an animal pet, the formal determination shall include consultation with the department of health for the purposes of rabies control. The sheriff may dispose of any animal so determined to be dangerous.