WATERVILLE — The fate of Dakota the dog still hangs in the balance after a judge on Tuesday refused to stop a euthanization order.
Judge Valerie Stanfill said she didn’t believe Dakota’s new owner, Linda Janeski, had standing to ask that the original judgment that declared Dakota a dangerous dog, and ordered her destroyed within 48 hours, be withdrawn.
Furthermore, Stanfill said she didn’t think the state statute on dangerous dogs gave her the discretion to impose a punishment other than euthanization and a fine in this case.
“What I’m saying to you is, even if I accept all that you’re saying as true, I do not think I have the discretion to change” the order, Stanfill said.
Dakota, a 4-year-old Husky, was declared a dangerous dog in February 2016 when she got loose in Winslow and killed a smaller dog. Matthew Perry, her owner at the time, was ordered to keep her confined or on a short leash. However, Dakota got loose again this past January and went back to the same house, where she attacked the previous victims’ new dog.
Later on, she was taken to the Waterville animal shelter as a stray, where the staff conducted behavioral tests and watched her interact with other dogs. According to the shelter’s director, Lisa Smith, Dakota was a “model resident” at the shelter.
Gov. Paul LePage granted a pardon to Dakota on March 30 after a member of the Humane Society’s board sent him a letter. His news release stated “the dog ought to be provided a full and free pardon.”
Despite Tuesday’s action, there are other legal avenues that might prevent the dog from being put down.
Bonnie Martinolich, the attorney for Janeski, said after the hearing that she is going to file an appeal in the case. A stay on the order also has to be filed, as the appeal alone wouldn’t stop the euthanization order on Dakota.
“Justice is not safe today,” said Martinolich, who is a partner at PretiFlaherty in Portland.
A RIGHT TO BE HEARD
Janeski previously told the Morning Sentinel that she is the mother of Perry’s ex-girlfriend. She adopted Dakota once she found her at the Waterville Area Humane Society.
According to Martinolich, she was unaware of a scheduled hearing regarding Dakota’s fate on March 21. However, she did know about Dakota’s offenses and agreed to the court-ordered restrictions.
Martinolich argued that Janeski had the right to due process and to be heard in the case.
“You can’t take someone’s property, in this case destroy a dog, an irrevocable act, without giving the owner of the property an opportunity to come to court and be heard,” Martinolich said.
There is no state statute that guarantees the right to be heard in a civil violation, according to Stanfill.
Martinolich, however, argued that Janeski still “has a right to be heard.”
If they had had the opportunity to defend Dakota in court, the resulting order might have been different, Martinolich said.
Kennebec County Assistant District Attorney Francis Griffin argued that Janeski has no standing to make a motion on the order.
Perry was the owner at the time of the incident, and because the dog was found to be dangerous a second time, the owner at the time of the court ruling was irrelevant, Griffin said.
Stanfill said that “under the statute it is clear that more than one person could qualify as the owner or keeper at any one time” and is crafted to recognize that someone else may have an interest in the dog.
“Nothing says Mr. Perry wasn’t the proper person to charge,” she said, adding that no one was disputing that the dog was deemed dangerous previously and ordered confined in 2016.
While Perry did not have an attorney at the hearing, he spoke for himself, saying he would be responsible for any fines if Dakota were allowed to stay alive.
“I just don’t want to see her go down,” he said.
After the hearing, Perry said that Dakota is a “good girl, just the neighbor’s can’t have her around.” He’s going to look at other avenues to stop the euthanization order.
When asked if he thinks Dakota won’t harm another dog if she’s allowed to live, Perry said, “I’m hoping so.”
‘ANIMALS … PAY THE FULL PRICE’
After the judge denied Janeski’s motion, her attorney asked about the governor’s pardon.
“That is not in front of me,” Stanfill said.
LePage granted a pardon to Dakota last month after a member of the Humane Society’s board sent him a letter that the director, Smith, had sent to the district attorney.
“I have reviewed the facts of this case and I believe the dog ought to be provided a full and free pardon,” LePage said in a news release.
The pardon brought up legal questions of whether LePage had the authority to grant a pardon to an animal.
When asked about the role LePage’s pardon plays in the case, Kennebec County District Attorney Maeghan Maloney said it is “irrelevant.”
“The governor doesn’t have the power to issue a pardon in this case,” she said.
The governor’s office had not responded to a request for comment by late Tuesday afternoon.
Martinolich also asked about the communication from the state Department of Agriculture, Conservation and Forestry, which said in a news release Monday that the purpose of the statute is to punish the owner, and not the dog.
Liam Hughes, director of the Animal Welfare Program, which is part of the state agriculture department, said the agency made itself available as a resource to the court if needed. While the agency was not called upon, Hughes did attend the hearing.
While Hughes said he came to learn about the case and that he doesn’t have an opinion on it, he added that the agency is reviewing the laws regarding dangerous dogs.
“The laws don’t truly hold owners accountable,” Hughes said after the hearing. “Animals always pay the full price.”
Going forward, he hopes to make sure that the owners are more responsible for what happens with their animals.
For example, the program is reviewing legislation that was proposed recently to strengthen the dangerous-dog statute, he said.
Sarah Schindler, a professor of law at the University of Maine School of Law and the Glassman faculty research scholar, previously told the Morning Sentinel that the philosophy behind animal law is evolving.
Historically, animals were recognized legally as property, Schindler said, but laws are beginning to change to reflect that people often view their pets as much more than property.
While not speaking specifically about Dakota’s case, Schindler said that “as our science evolves, I think it makes sense that our laws would as well.”
DANGER TO THE COMMUNITY?
After the hearing, Maloney spoke about the “most moving part” of the case.
The victims in the case, who did not speak at the hearing and have not accepted numerous offers through Maloney to speak with the Morning Sentinel, lost their dog Zoey in February 2016 after Dakota attacked and killed her.
Maloney said 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.”
This past January, Dakota went back to the same house and attacked their new dog, Bruce Wayne. Dakota reportedly had the Pekingese dog in her mouth by the neck, Maloney said.
The statute is clear regarding the rules and punishments for dangerous dogs, Maloney said.
“I followed the statute as the Legislature gives it to me,” she said, adding that if Dakota were to kill another dog, “that would be unfair.”
The statute states that the court shall order a dog euthanized “if it has killed, maimed or inflicted serious bodily injury upon a person or has a history of a prior assault or a prior finding by the court of being a dangerous dog.”
But Smith, the director of the Humane Society in Waterville, said after the hearing that Dakota “interacts favorably” with other dogs and people.
“We don’t feel that this dog is a danger to the community based on our assessments,” she said. The shelter staff had used the SAFER aggression assessment on Dakota, which evaluates the “probability of canine aggression in individual dogs.” The test is approved by the American Society for the Prevention of Cruelty to Animals, or ASPCA.
Smith said the outcome of the hearing Tuesday is “disappointing, but I certainly understand the points the court was making.”
According to Martinolich during the hearing, both the shelter and Janeski acted on good faith with the information they received from Animal Control Officer Chris Martinez before going through with the adoption.
On two occasions, Martinolich said Martinez had spoken with Smith or shelter staff members and told them they had the authority to put Dakota up for adoption as long as the new owner was aware of the restrictions.
However, Martinez previously denied this claim, saying he told Humane Society staffers that the dog was released into their ownership and gave them a copy of the dangerous-dog order.
“I would hope it would’ve been common sense not to adopt out a dangerous dog,” he said.
Hughes, the director of the state Animal Welfare Program, said the communication between the shelter and the animal control officer is something he would’ve changed in the case.
The two parties are going to work out what happened, he said, to “make sure this doesn’t happen again.”
Madeline St. Amour — 861-9239