Opinion
No. 06-0964.
April 26, 2007.
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS
Pursuant to Mass. R. Civ. P. 12(c), the plaintiff's request for judgment is construed by this court as a motion for judgment on the pleadings.
The instant matter arises from a decision of the Boston Municipal Court affirming an order of the Boston Animal Control Division that the plaintiff's dog be humanely euthanized in accordance with G. L. c. 140, § 157. The plaintiff has filed an action in the nature of certiorari, pursuant to G. L. c. 249, § 4, seeking to set aside the order on the basis of various due process violations. Currently before the court is the plaintiff's motion for judgment on the pleadings. For the reasons set forth below, the plaintiff's motion is DENIED and judgment shall enter for the defendants.
BACKGROUND
The plaintiff, Brian Schwab, owns a black pit bull terrier named Gabrielle. On the afternoon of October 10, 2005, Schwab brought Gabrielle to an area outside a Borders bookstore on School Street in Boston. In violation of a Boston city ordinance, Gabrielle was not muzzled.
Schwab contends that he chose not to muzzle Gabrielle out of a concern that it would cause serious brain damage.
Boston police officer Teddy Hendricks approached Schwab requesting that he muzzle Gabrielle and tighten her leash because he had witnessed her menacing some pedestrians. Sergeants Thomas Joyce and Ian Mahoney soon joined Officer Hendricks in attempting to get Schwab to comply with their request. An altercation ensued in which Gabrielle became unleashed and attacked Sgt. Mahoney and Officer Hendricks with each officer sustaining injury. On separate occasions, each officer was forced to fire his weapon at Gabrielle in an attempt to fend off the attack. Gabrielle was wounded and taken to Angel Memorial Hospital for treatment.
Two other officers soon followed.
In response to this incident, Sgt. Joyce submitted a written complaint to Sgt. Charles Rudack of the Boston Animal Control Division. In accordance with G. L. c. 140, § 157, Sgt. Rudack held a hearing regarding Sgt. Joyce's complaint. Despite receiving notice, Schwab failed to attend or otherwise re-schedule the hearing. Sgt. Rudack found that Gabrielle was a vicious and dangerous dog and ordered that she be humanely euthanized.
The hearing was held at the Nashua Street jail where Schwab was being held in connection with the underlying events.
Schwab appealed Sgt. Rudack's order to the Charlestown Division of the Boston Municipal Court and received a hearing in front of an assistant clerk magistrate. On December 1, 2005, the magistrate denied Schwab's petition to set aside Sgt. Rudack's order. Schwab appealed that order and received a de novo hearing before a judge of the Boston Municipal Court. At all relevant times, Schwab has appeared pro se.
Officer Patricia Jones, a Boston quarantine officer, was the first witness to testify. Officer Jones' testimony primarily consisted of recounting the statements Schwab made to her several days after the incident in which Schwab admitted the essential facts surrounding Gabrielle's attack on the officers. Officer Jones also testified that Schwab had informed her that Gabrielle had previously bitten him, that the dog was hesitant towards a child with whom Schwab resided, and that Gabrielle continued to show signs of aggressiveness while being held at the Boston Animal Shelter. In further testimony, Officer Jones referred to the contents of a Salem police report which revealed prior instances of Gabrielle's aggressiveness, including an attack on Schwab's mother. On cross-examination, Schwab asked Officer Jones a question regarding Gabrielle's current physical condition. Officer Jones responded that she did not know the status of Gabrielle's condition.
Sgt. Rudack then testified in which he sought to introduce the Salem police reports. Schwab objected to the documents' admission suggesting that they were "phony" because he never actually witnessed the events the police reports detailed. Despite Schwab's objection, the judge admitted the documents because the action was "in the nature of [an] administrative law hearing" where "hearsay is routinely admitted." Sgt. Rudack proceeded to testify that he primarily relied upon the recommendation of Dr. Amy Marder, an animal behaviorist who examined Gabrielle, and followed her recommendation that the dog be humanely euthanized.
Testifying on his own behalf, Schwab admitted that he had taken Gabrielle to Boston without a muzzle where she attacked the two officers. Schwab, in response to questioning by the court, then recounted the events in Salem which led to Schwab's mother being bitten by Gabrielle. The hearing concluded with Schwab calling one Keith Boutwell to the stand whereby he testified that he witnessed Gabrielle attack the officers in an attempt at "defending" Schwab. On January 6, 2006, the judge affirmed the decision to euthanize Gabrielle.
Pursuant to G. L. c. 249, § 4, Schwab now brings this action to set aside the decision of the Boston Municipal Court. Schwab alleges that he was denied due process because his various mental health conditions prohibited him from engaging in a meaningful cross-examination and that the judge erred by admitting hearsay evidence and by failing to adequately consider less severe alternatives to euthanasia.
DISCUSSION
When presented with an action in the nature of certiorari, a court's review is limited to correcting substantial errors of law which are apparent on the record. MacHenry v. Civil Serv. Comm'n, 40 Mass. App. Ct. 632, 634 (1996). A reviewing court shall correct only those errors "which have resulted in manifest injustice to the plaintiff or which have adversely affected the real interests of the general public." Murray v. Second Dist. Court of E. Middlesex, 389 Mass. 508, 511 (1983). Proceedings under G. L. c. 140, § 157, as they are essentially adjudicatory in nature, require the application of a substantial evidence test. Durbin v. Bd. of Selectmen of Kingston, 62 Mass. App. Ct. 1, 6 n. 7. Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion."New Boston Garden Corp. v. Bd. of Assessors of Boston, 383 Mass. 456, 466 (1981). The conclusion need not be based on the "clear weight" of the evidence or even on a "preponderance of the evidence", but rather only upon "reasonable evidence." Lisbon v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct. 246, 257 (1996). Thus, the decision on appeal must stand so long as it is supported by substantial evidence. Durbin, 62 Mass. App. Ct. at 5.
A. Due Process
1. Schwab first argues that his mental health prohibited him from receiving a hearing which comported with due process. Specifically, Schwab urges this court to find that his mental state caused him to "misunderst[and] the instructions and questions presented at the Trial Court, and that he was unable to defend his position." Consequently, it is argued, he was prohibited from conducting a meaningful cross-examination of witnesses in violation of his right to due process.
Schwab represents that he has been diagnosed with schizophrenia, depression, bipolar disorder, and ADHD.
The defendant moves this court to strike any references to Schwab's mental health because these facts are extrinsic to the record. The defendant is correct in his contention that facts outside the record are not typically part of the court's review in an action in the nature of certiorari. See Durbin, 62 Mass. App. Ct. at 6-7 (affirming denial of motion to present additional evidence to the superior court because of the "constrained review on a petition for certiorari"). However, the court will refer to Schwab's mental health since he is arguing that his appearance in front of the district court "clearly illustrate[d]" his mental deficiencies. Thus, he is essentially arguing that the record itself illustrates his lack of mental cognition.
Prohibiting a party's right to cross-examine witnesses can violate that individual's constitutional rights. See Roche v. Massachusetts Bay Transp. Auth., 400 Mass. 217, 222-223 (1987). However, there is no evidence to suggest that Schwab was prohibited, either by the court or by his own mental state, from conducting a cross-examination of either Sgt. Rudack or Officer Jones. To the contrary, the judge asked Schwab at the conclusion of each witness if he had any questions for the witness. Schwab apparently understood these procedures as he posed a question to Officer Jones at the conclusion of her testimony. The fact that Schwab may not have chosen to query the witnesses to a further extent does not render the proceedings constitutionally infirm. Nor does the fact that he had chosen to proceed pro se despite his right to retain counsel. See Genninger v. Genninger, 418 Mass. 732, 735 (1994) (a litigant is not constitutionally entitled to a court-appointed attorney in civil cases involving property interests); R.G. v. Hall, 37 Mass. App. Ct. 410, 412-413 (1994) (constitutional and statutory right to retain counsel in a civil case).
The court recognizes that Schwab's question did not focus upon Officer Jones' testimony as it was primarily concerned with Gabrielle's physical health. However, the fact remains that Schwab understood that he had an opportunity to question Officer Jones with regard to the case.
Furthermore, any argument that the judge erred by not ordering a competency hearing for Schwab must fail. It is well settled that a judge is required to hold a competency hearing for an individual in a civil case only when there is a "substantial question" as to that individual's competence at the time of the proceeding. Commonwealth v. Knowlton, 378 Mass. 479, 480 (1979). Moreover, such hearings are required in civil proceedings only where they rise to the level of protecting such "precious" fundamental rights, such as one's liberty, that competency safeguards otherwise reserved for criminal proceedings are warranted.Id. at 487 (competency hearings required prior to a sexually dangerous person proceeding where defendant raises substantial question as to his competence at the outset of proceeding). Regardless of whether a proceeding pursuant to G. L. c. 140, § 157 would warrant a competency hearing at all, the record does not suggest the presence of a substantial question as to Schwab's competence. Schwab abided by the judge's orders, asked and responded to questions, and called a witness on his own behalf. He even appeared to possess knowledge of the legal system as he used the term "substantial evidence" in his argument. Simply put, there was no apparent reason for the judge to order a competency hearing. As such, the record does not reveal that the proceedings below violated Schwab's right to due process.
B. Hearsay
Schwab's second argument is that the admission of hearsay constituted a substantial error of law. The defendant argues that the hearsay evidence did not substantially prejudice Schwab because the majority of such evidence was corroborated by non-hearsay evidence.
Schwab contends that virtually the entirety of Officer Jones' testimony constituted hearsay. The court disagrees. The vast majority of Officer Jones' testimony concerned Schwab's admissions regarding Gabrielle's vicious behavior on October 10, 2005. As she was called to testify by Sgt. Rudack, her testimony constituted a summary of admissions made by a party-opponent which are admissible under our evidentiary rules. SeeCommonwealth v. Morgan, 422 Mass. 373, 379 (1996) (witness testimony as to party-opponent's admissions is admissible).
Schwab also contends that the admission of the police reports constituted hearsay. Upon admitting the documents, the judge himself referenced their hearsay character but decided to treat the proceeding as an administrative one where the normal rules of evidence do not apply. See Brookline v. Comm'r of the Dep't of Envtl Quality Eng'g, 387 Mass. 372, 389 (1982). Even if the district court judge's characterization of the proceeding was erroneous, see Durbin, 62 Mass. App. Ct. at 12 (affirming district court's admission of certain statements because they arose under an exception to the hearsay rule), Schwab has failed to show how that evidence has "resulted in manifest injustice to [him]" or how it has "adversely affected the real interests of the general public." Id. at 5. Although Officer Jones and Sgt. Rudack referenced events contained in the Boston and Salem police reports, the same events were largely corroborated by Schwab's own testimony and admissions. Thus, the district court's conclusion was supported by substantial evidence even without reference to any such hearsay evidence.
C. Less Severe Alternatives
Schwab's third argument merits little discussion. Schwab argues that the district court reached its decision without sufficient consideration of Gabrielle's usual disposition or adequate consideration of less severe alternatives to euthanasia. For support, Schwab relies on Cullinane v.Bd. of Selectmen of Maynard, 50 Mass. App. Ct. 851 (2001). A lone statement in that opinion noted that "the order for disposal of the [dogs] . . . was subject to the possible criticism that it was reached without sufficient consideration of the several forms of the alternative of `restraint'. . ." Id. at 854. However, as the Appeals Court noted several years later, that "dictum . . . based on [the case's] unique set of facts, did not announce a general principle that an order to dispose of a dog whose vicious disposition has been established by the evidence cannot stand unless it is clearly demonstrated that no less severe alternative exists." Durbin, 62 Mass. App. Ct. at 11. Even if plaintiff's claim were accurate, the district court's reasoned opinion reveals that he did consider all available alternatives when he stated that he "do[es] not easily separate an animal from an owner who cares so much for her."
For the foregoing reasons, Schwab has failed to establish that the proceedings below contained substantial errors of law which would necessitate an order setting aside the decision of the Boston Municipal Court.
ORDER
For the foregoing reasons, it is hereby ORDERED that the plaintiff's motion for judgment on the pleadings is DENIED . Accordingly, judgment shall enter for the defendant.