Ronald T. West v. Municipality of Anchorage

A dog bit or pawed a seven-week-old baby, causing several scratches along
the baby's face and forehead. After an investigation, an Anchorage animal control
enforcement officer concluded that the dog should be classified as a "level three" animal,
defined by the city code as one that, "while under restraint, inflicts an aggressive bite or
causes any physical injury to any human." An administrative hearing officer upheld this
classification, as did the superior court. The dog's owner appeals. Because the hearing
officer applied the correct burden of proof and properly interpreted the evidence, and
because the decision is supported by substantial evidence, we affirm.

II. FACTS AND PROCEEDINGS

A. Facts

On April 14, 2003, Kandi Trescott was visiting Knight's Auto Radio store
in Anchorage and speaking with Jeffrey Knight, the store's owner and operator, while
Trescott's seven-week old baby, Ethan, lay in a carrier by her feet. The baby was
covered by a blanket when Ronald West entered the store with his black and white
malamute dog, Gummie, on a long leash. Upon entering the store, Gummie approached
the baby. What happened next is in dispute, though undeniably it resulted in several
scratches to the baby's face.

According to Trescott, Gummie inserted his head under the blanket and
grasped the baby's head in his mouth. Knight testified that he did not have a clear view
of the baby and did not observe what Gummie did before walking away with the baby's
blanket in his teeth. West, who was further from the baby, testified that Gummie never
bit the baby but merely pushed his paw under the blanket and rubbed his paw on the
baby's face enough to cause the scratches.

There was conflicting testimony as to the baby's reaction. Trescott stated
that the baby cried and continued crying for several minutes until she quieted him down
by carrying him around the store. West's affidavit, filed two days after the incident,
indicates that he heard the baby cry. An animal control report also indicates that Knight
initially told animal control that the baby had cried. However, at the administrative
hearing West (and Knight) denied that the baby cried and testified that the baby was
merely in shock.

After receiving Gummie's rabies tag information, Trescott, joined by the
baby's father, took the baby to see Dr. Martin Beals. Beals's report described the marks
on the baby's head as "[s]everal superficial red whelp-like scratch marks on [the] right
cheek and one longer one on the [left] cheek." He also reported very superficial scrapes
on the forehead with mild redness and wrote, "[n]o puncture wounds or deep bruising or
tenderness noted."

B. Proceedings

Trescott called animal control to report the incident on April 14, 2003, the
day the incident happened, and gave a written statement to Animal Control Officer
Richard Gamble. Later that day Animal Control Enforcement Supervisor Richard Novy
spoke with West by telephone and informed him of the need for Gummie to be
quarantined. Gummie was quarantined for ten days beginning April 15. Novy continued
to investigate the incident and on April 21 classified Gummie as a "level three" animal.
Anchorage Municipal Code (AMC) 17.40.020(A)(3) states: "Level three
behavior is established if an animal, while under restraint, inflicts an aggressive bite or
causes any physical injury to any human." This classification has a number of
consequences, including an increase in the yearly licensing fee, requirements that
warning signs be posted on the owner's property, and requirements that the dog be
securely enclosed at all times or, when off the owner's property, on a leash six feet or
shorter and muzzled.1, 2

West appealed to an administrative hearing officer. After multiple
continuances, a final hearing was held on April 27, 2004. On May 25, 2004, the
Administrative Hearing Officer, Timothy Middleton, issued a ruling finding that Gummie
warranted level three classification. Middleton specified that animal control bore the
burden to prove the basis of the classification by a preponderance of the evidence, a
burden which he found that it had met.

West appealed to the superior court, which dismissed the case for failure
to prosecute when West did not timely file a brief and did not move the court to accept
a late-filed brief. The superior court, apparently without the benefit of any briefing from
West, also found that substantial evidence supported the hearing officer's decision.

III. STANDARD OF REVIEW

Where the superior court is acting as an intermediate court of appeals, we
directly review the agency decision.3 Questions of fact are reviewed for substantial
evidence.4 Questions of law involving agency expertise are reviewed using the
reasonable basis test5 because "where an agency interprets its own regulation . . . a
deferential standard of review properly recognizes that the agency is best able to discern
its intent in promulgating the regulation at issue."6 We apply our independent judgment
to issues of law not involving agency expertise.7
"Whether the trial court used the appropriate burden of persuasion ‘presents
a question of law to which this court applies its independent judgment, adopting the rule
of law that is most persuasive in view of precedent, reason and policy.' "8
Finally, we review the superior court's decision to dismiss for failure to
prosecute for abuse of discretion.9

IV. DISCUSSION

We conclude that the superior court did not abuse its discretion in its
procedural handling of this case, but decline to rest affirmance on West's failure to
prosecute. Because the hearing officer's decision is correct on the law and supported by
substantial evidence, we affirm.

A. The Hearing Officer Applied the Correct Standard of Proof.

West argues that decisions under the animal control ordinance of the
Municipality of Anchorage should utilize the "beyond a reasonable doubt" standard of
proof instead of the "preponderance of the evidence" test that the hearing officer used in
this case. West asserts that beyond a reasonable doubt is the proper standard because of
the "remedial or criminal" nature of the actions under the animal control ordinance, and
the "remedial penalties" that resulted from the level three classification.10 In so doing he
mistakenly conflates the meaning of remedial and criminal ordinances.

West cites State v. Von Thiele,11 a Washington case which determined that
where a statute is remedial rather than criminal in nature, the state's burden of proof is
preponderance of the evidence. In that case, Von Thiele was charged with illegal hunting
and was forced to pay restitution.12 West misreads the court's discussion on this matter
as distinguishing "criminal or remedial" statutes on the one hand and "civil" on the other.
In fact, the court was distinguishing between criminal and remedial statutes, holding that
the remedial nature of the restitution requirement in question made it civil in nature:
"[T]he plain and unambiguous language of [the restitution provision] unequivocally
demonstrates a legislative intent to provide a civil penalty system in the form of
restitution for the redress of wildlife values lost because of illegal hunting. Accordingly,
[the restitution provision] is inherently remedial, rather than criminal, in nature."13 Thus,
Von Thiele actually counters West's point and undermines his theory that the existence
of penalties renders the animal control ordinance criminal in nature.

Furthermore, as the municipality notes in its brief, Alaska case law similarly
distinguishes between sanctions that are remedial and criminal in nature. In Johansen
v. State14 we distinguished between the procedural safeguards afforded defendants in civil
contempt and criminal contempt proceedings, holding that civil contempt needed to be
proved only by a preponderance of the evidence.15

No Alaska case law supports West's position that the classification hearing
was criminal in nature, or that it should result in a beyond a reasonable doubt standard
of proof. West cites Sinclair v. Okata,16 where the federal district court characterized an
Anchorage ordinance on animal control as "unequivocally aimed at preventing attacks
and bites by dogs."17 However, Sinclair said nothing about the statute's "criminal
nature" or the burden of proof required for proving an injury in an administrative hearing.
Indeed, the dog owner in Sinclair was held negligent per se for injuries caused by his dog
when it was not under voice control.18

Finally, the context of the ordinances confirms that the animal control
regulations are not criminal in nature. The entire structure for providing an animal
control hearing on an animal classification in AMC 17.05.100 utilizes the administrative
adjudication procedures of AMC 03.60. The civil nature of the ordinance is further
clarified by the fact that the former provision on "crimes and penalties" in AMC 17.40
now is contained in the criminal provisions of the AMC,19 separating it from the rest of
animal control regulations. The criminal provision of the animal behavior regulation
provides that an owner is subject to criminal penalty if she or he violates "with criminal
negligence" the requirements of the animal classification pertaining to animals classified
at level three or higher.20 Thus, while Gummie's initial classification is an administrative
matter conducted under standard administrative procedures, any alleged criminal
violation of the terms of the classification by West would result in a separate trial in
which West would be afforded full criminal defendant protections.
Because the hearing classifying Gummie was not a criminal proceeding but
instead an administrative one, the hearing officer properly used the preponderance of the
evidence standard.

B. The Hearing Officer Properly Interpreted the Ordinance.

West argues that the hearing officer improperly interpreted the ordinance
guiding classification of level three animals. The relevant provision states: "Level three
behavior is established if an animal, while under restraint, inflicts an aggressive bite or
causes any physical injury to any human."21 West argues that the clause "causes any
physical injury to any human" should be interpreted as requiring that the animal
aggressively caused "any physical injury."

West relies on the statutory construction rule of ejusdem generis, which has
been explained as follows:
[W]hen a general word or phrase follows a list of specifics,
the general word or phrase will be interpreted to include only
items of the same type as those listed. For example, in the
phrase horses, cattle, sheep, pigs, goats, or any other farm
animal, the general language "or any other farm animal" –
despite its seeming breadth – would probably be held to
include only four-legged, hoofed mammals typically found on
farms, and thus would exclude chickens.[22]

However, as the municipality notes, the language of AMC 17.40.020(A)(3) does not
contain a "list of specifics" preceding the phrase "or causes any physical injury . . . . "
Instead, only the specific act of an "aggressive bite" precedes "or causes any physical
injury to any human." We agree that this lack of a list means that ejusdem generis does
not apply.

Additionally, the plain meaning of the sentence is not ambiguous, and thus
no statutory aids need apply. In Crump v. State23 we clarified the role of ejusdem generis
when we declined to apply the canon to a kidnapping statute:

Ejusdem generis is not a rule of law, but rather an aid
to the interpretation of statutes that are ambiguous or that
leave unclear the legislative intent. Here ejusdem generis is
not appropriate because the statute is not ambiguous.[24]
Similarly, there is nothing about the wording of AMC 17.40.020(A)(3) that makes it
ambiguous. The terms "aggressive bite" and "physical injury" are both defined in the
ordinance.25 Finally, it is grammatically incorrect to conclude that the word "aggressive"
modifies any part of the phrase "or causes any physical injury to any human."

Reading level three classification as including any physical injury to any
human also fits logically within the context of the classifications. The less-sanctioned
level two behavior "is established if an animal bites or causes physical injury to any
domestic animal, or if an unrestrained animal kills any unrestrained domestic animal."26
Thus, at level two, no injury to any human is contemplated. Similarly, level four
behavior occurs when an unrestrained animal inflicts the same harm described in level
three.27 Level five behavior is established if "[a]n animal, regardless of whether it is
restrained, causes serious physical injury or the death of any human . . . ."28 As would
be expected, levels four and five contemplate more serious behavior than occurred here,
and level two contemplates less serious behavior.

West argues that the hearing officer's interpretation could result in an
animal's classification for injuries that it causes inadvertently. But the ordinance
mitigates this risk by providing a list of nine exceptions to the classifications29 including
injury resulting from the animal acting out of pain, protecting its young, playing with the
family that owns it, and a general exception for when "[t]he decision not to classify
reasonably serves and promotes justice, fairness, and the purposes and intent of this title,
the protection of public health, safety and welfare, and the humane care and treatment of
animals."30 Given the plain meaning of AMC 17.40.020(A)(3), its context, and the
exceptions to the classifications, the hearing officer properly interpreted the ordinance
to apply to any physical injury to a human.

C. The Hearing Officer's Decision Was Supported by Substantial
Evidence.

In order to uphold the administrative decision, we must determine whether
the hearing officer's decision was supported by substantial evidence. As noted above,
level three classification required a determination that an animal under restraint caused
"any physical injury to any human."31 The municipal code defines physical injury as "an
impairment of physical condition or pain that is accompanied by scrapes, cuts, punctures
or other evidence of similar injuries."32

It is uncontested that (1) Gummie was restrained33 and (2) Gummie's
actions resulted in several scratches to the baby's face, though they were not deep.34 All
parties agree that Gummie did not display aggressive characteristics such as "snarling,
baring teeth, growling, [or] snapping." Thus, Gummie did not inflict an "aggressive
bite,"35 but inflicted physical injury if the scrapes were accompanied by pain.

The witnesses disagreed about the baby's reaction, which is important for
satisfying the "pain" element of the physical injury definition. Trescott testified that her
baby was crying, while Knight and West testified that he did not cry out and was merely
in shock. The hearing officer found Trescott's testimony on the baby's reaction to be
more credible "because she had a better view." On appeal, West contends that this is
false because Knight was standing next to the baby. However, Knight's own testimony
indicated that he believed Trescott had the better view:

I think [Trescott] may have seen more [than me]. She was
pretty concerned about the baby. Where the baby was and
everything. She was constantly looking down at the baby
while she was talking to me . . . .

Additionally, testimony that the baby remained silent is contradicted by
other parts of the record. In West's affidavit to Anchorage Animal Control, made two
days after the incident, "I was unaware there was even a baby present until the baby
cried." Similarly, the animal control report of a conversation with Knight the day after
the incident states that "[Knight] said West came thru the door with his dog and then
when he (Knight) heard the infant start crying he looked over in the direction of the
infant, and saw the dog with the blanket in its mouth."

Finally, the hearing officer's decision involves a credibility determination
that we leave to the trier of fact.36 West cites several cases from foreign jurisdictions to
argue that the hearing officer should be required to articulate more of his reasoning. In
this case, the hearing officer did clearly articulate his reasoning - Trescott was in the
best position to view the baby and thus was more credible on the issue of the baby's
injuries and reaction. Moreover, we have stated in workers' compensation cases that
credibility determinations do not require substantial findings of fact on the record:
Credibility decisions regarding witness testimony, however,
are uniquely within the province of the Board and it is not our
task on review to reweigh them. There is less need, then, for
extensive findings of fact regarding witness credibility. Our
task when reviewing a Board decision is to ascertain whether
it was based upon substantial evidence, evidence which a
reasonable mind might accept as adequate to support a
conclusion.[37]

The hearing officer's conclusion that the mother was more observant of her baby at the
time of the incident and more accurately remembered her baby's reaction is supported
by substantial evidence. Trescott testified, "My memory is not faulty. That memory is
never going to go out of my mind. I will probably remember that when my son is 30
years old, how lucky I was that that dog did not decide to bite down and crush Ethan's
skull." Certainly a reasonable mind could have been persuaded by that testimony.
The hearing officer concluded that Gummie, while restrained, caused a
physical injury (the uncontested scrapes) which resulted in pain (as evidenced by the
crying). Both elements of this determination were supported by substantial evidence and
are thus affirmed.

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http://www.state.ak.us/courts/ops/sp-6213.pdf