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Kougher v. Burd

January 25, 2007

CHRISTINE KOUGHER, TRACY MILLER, KEYSTONE GOLDEN RETRIEVER RESCUE, INC., PLAINTIFFS
v.
RICK BURD, MARY BENDER, NATHAN MYER AND ANGIE H. HOLLOWAY, DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

This is a § 1983 action filed by Tracy Miller ("Miller") and Christine Kougher ("Kougher"). Miller is a state dog warden employed by the Bureau of Dog Law Protection ("Bureau") under the auspices of the Pennsylvania Department of Agriculture. Kougher is President of Keystone Golden Retriever Rescue, Inc. ("Rescue"), also a party plaintiff. The defendants are Rick Burd ("Burd"), Mary Bender ("Bender"), Nathan Myer ("Myer") and Angie H. Holloway ("Holloway"). Burd is the Executive Director of the Bureau and Bender is the Bureau's Director of Enforcement. Myer is a commercial kennel owner and serves as a member of the Dog Law Advisory Board. See 3 PA. STAT. ANN. § 459-901(c).*fn1 Holloway is a private citizen and former unlicensed kennel owner who was the subject of certain dog law enforcement proceedings.

In their complaint, plaintiffs allege that defendants violated their First Amendment Rights to free speech and association. Specifically, Kougher and Rescue allege that their "freedom to associate and speak out for purposes of protecting the health and well-being of dogs and the rights of dog owners are being unlawfully oppressed" by the State Defendants. (Doc. 1 ¶ 1.) Miller "contends that he has been unlawfully punished, threatened, and intimidated because he has spoken out for and pursued his lawful duties to enforce and uphold the law." Id. Presently before the court is a motion for summary judgment filed by the State Defendants. For the reasons that follow, the motion will be granted.

I. Factual Background and Procedural History

A. Local Rules of the Middle District of Pennsylvania

When deciding summary judgment motions, the court derives the relevant undisputed facts from the parties' statements submitted pursuant to Local Rule 56.1. This rule instructs the parties to file . . . a separate short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried. The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the [moving party's statement], as to which it is contended that there exists a genuine issue to be tried. Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.

L.R. 56.1. Local Rule 56.1 provides parties with precise parameters for the presentation of summary judgment issues. In the instant case, the court has scrutinized the parties' Rule 56.1 statements and record references*fn2 and gleaned the following facts from those paragraphs which, except as otherwise noted, are either admitted by the plaintiffs or are uncontroverted by the plaintiffs' record citations.*fn3

B. Relevant Facts

1. Bureau Duties

The Bureau is responsible for enforcing the Dog Law, 3 PA. STAT. ANN. §§ 459-101 to 459-1205, the Rabies Prevention and Control in Domestic Animals and Wildlife Act, 3 Pa. Stat. Ann. §§ 455.1 to 455.12, as well as Department regulations promulgated under the statutes. (S.F. ¶ 12.) In general, these responsibilities include the licensing and control of dogs, kennel licensing and inspections, dog bite investigations, funding of certain county and humane organizations to establish dog control facilities, and the enforcement of dog and kennel owner obligations. (S.F. ¶ 13.)*fn4

Material to the instant matter is the Bureau's position that the Dog Law does not provide dog wardens with authority to issue citations under the Pennsylvania Crimes Code, Title 18 of the Pennsylvania Consolidated Statutes. (Doc. 24 ¶ 19.) The plaintiffs dispute this position, relying, in part, on an opinion dated July 27, 1983 of a former chief counsel of the Department of Agriculture. (Doc. 31 ¶ 19; Doc. 36, Ex. W.) Plaintiffs assert that the defendants "selectively" interpreted the Dog Law in violation of the plaintiffs' constitutional rights, observing, by way of example, that Miller had previously written numerous citations for cruelty to animals under 18 PA. CONS. STAT. ANN. § 5511(a)(2). (Doc. 31 ¶ 19; Doc. 32 at 4.)

2. Miller's Animal Cruelty Charges Against Holloway

In June 2003, Holloway contacted Rescue seeking to place three golden retrievers-two adults and a puppy. Rescue agreed to accept Holloway's dogs. (Doc. 36, Ex. I at 3.) The dogs arrived at Rescue with a variety of maladies. A veterinary examination revealed worms, coccidia and malnourishment. Id.

Thereafter, Kougher contacted Miller, Burd, Bender and various state officials, seeking an investigation of Holloway's kennel operation based upon the poor condition of Holloway's dogs. Id. at 4.*fn5

In October 2003, Holloway received a directive from the Department of Agriculture to apply for a kennel license. (Doc. 36, Ex. J at 5.) The directive advised that if Holloway failed to apply for a kennel license, the Department would initiate an injunction proceeding to shut down her kennel operations. Id. In November 2003, Bender, Burd, Miller and a state veterinarian conducted an inspection of Holloway's kennel. Id. The inspectors discovered 131 dogs living in unsanitary conditions. Id. Consequently, Miller filed, inter alia, animal cruelty charges against Holloway pursuant to 18 PA. CONS. STAT. ANN. § 5511. Id. Shortly thereafter, Bender directed Miller to withdraw all Criminal Code citations based upon the Department's position that dog wardens lack the requisite authority for the unilateral prosecution of such charges. Id.; (S.F. ¶¶ 20-21.)

In December 2003, Bender issued a comprehensive memorandum to all state dog wardens to clarify the Bureau's official policy that dog wardens do not possess the authority to file charges under the Pennsylvania Crimes Code. (Doc. 26, Ex. G at 2-3.) It provides, in pertinent part, as follows:

The Dog Law defines the term "police officer" to include State Dog Wardens. However, definitions in [a] statute define terms as they relate to that statute only, and do not alone give Wardens any power or authority outside the legal boundaries of the Dog Law. The Dog Law provides the authority to issue summary citations and enter onto the premises of any person for the purposes of investigation. In addition, although section 401(b) of the Dog Law states, "State dog wardens and employees of the Department are considered to be police officers when enforcing any of the provisions of this act or regulations pursuant to this act," it does not specifically provide for arrest powers. It is therefore the policy of the Department that wardens do not possess arrest powers. Wardens have the authority to enforce the provisions of the Dog Law and Rabies Law only.

With regard to the question concerning whether wardens have the authority to issue citations or bring charges related to cruelty to animals, it the opinion of the Department's Office of Chief Counsel that no such authority exists within the Dog Law, or Section 5511 of the Crimes Code (related to cruelty to animals). This position has been communicated repeatedly, both verbally and in writing, to Wardens in the past. Simply stated, the Dog Law does not address cruelty charges. The authority with regard to cruelty to animals is established under Section 5511 of the Crimes Code. Section 5511(I) states "An agent of any society or association for the prevention of cruelty to animals, incorporated under the laws of the Commonwealth, shall have the same powers to initiate criminal proceeding[s] provided for police officers by the Pennsylvania Rules of Criminal Procedure." The Pennsylvania Rules of Criminal Procedure define a "Police Officer" as ". . . any person who is by law given the power to arrest when acting in the scope of the person's employment." The Pennsylvania Rules of Criminal Procedure also define "Law Enforcement Officer" as ". . . any person who is by law given the power to enforce the law when acting within the scope of that person's employment." As stated above, a warden has the power to enforce the Dog Law, but does not have arrest powers under the Dog Law; therefore, wardens are not police officers as defined by the Pennsylvania Rules of Criminal Procedure, and have no statutory authority to file cruelty to animal charges.

Based on this legal opinion, any cruelty charges that have been filed by any warden, and currently pending, are to be withdrawn immediately. This does not, however, prevent any warden from presenting information which is not part of an ongoing Bureau investigation to an agent for any society or association for the prevention of cruelty to animals, or to any police officer, to be used as part of a cruelty investigation. Wardens are also permitted to testify on behalf of such an agent or police officer in a cruelty action brought by that agent or police officer.

Because of the very serious nature of this policy, all Wardens are instructed to sign the attached acknowledgment form, stating that they have read and understand the conditions of [this policy].

Failure to comply with this policy may result in appropriate disciplinary action. (Doc. 26, Ex. G at 2-3 (emphasis in original)).

Miller subsequently withdrew all of the animal cruelty charges filed against Holloway. (Doc. 36, Ex. J at 5-6.) In January 2004, he refiled twenty-six (26) charges against Holloway for violations of the Dog ...


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