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Tinkerbell, the pit bull, lives!

Posted on September 21, 2015 at 10:50 AM

I haven't written on this blog since the early part of the Summer.  Part of my problem was the lethargy that comes with the warmer months, and another part of my problem was that I seemed to be writing to myself.  I've finally gotten over both the lethargy, and caring whether anyone reads my scribblings or not.  So I began to look at some of the older posts, and found that there were several posts that could probably use some freshening up. One post in particular called out for some new reporting.

On May 4, 2015, I wrote about a case that was going to be argued before the West Virginia Supreme Court of Appeals.  The case involved a pit bull dog, named Tinkerbell, who had injured a child, and who had been court ordered to be euthanized.  In a decision named State of West Virginia v. Blatt, et ux., No. 14-0757, filed on June 16, 2015, the Supremes reversed the lower court order directing that Tinkerbell be killed.

The facts briefly:  Tinkerbell, a pitbull dog was alleged to have bitten a young boy while he was visiting at Tinkerbell's house; pursuant to West Virginia Code Section 19-20-20, a criminal trial was had against Tinkerbell's owners, Michael and Kim Blatt, to determine if they were guilty of having violated Code Section 19-20-20; in other words, could the State prove beyond a reasonable doubt that the Blatts owned, kept or harboured a dog (Tinkerbell) known to the Blatts to be vicious, dangerous, or in the habit of biting other people.  In the criminal trial against the Blatts, the Blatts were found to be not guilty of having violated 19-20-20.

In a case named Durham v. Jenkins, 229 W.Va. 669, 735 S.E.2d 266 (2012), the Court determined that "[s]ection 19-20-20, which is entirely criminal in nature, only provides for the killing of a dog when it is first found that the dog's owner committed a crime described in the first sentence of the section..." that is owning, keeping, or harboring a vicious, dangerous dog, or a dog in the habit of biting other people.

To my way of thinking, the case of Durham v. Jenkins was pretty clear, and I wrote, in my previous blog post, that I was pulling for Tinkerbell and hoping that the Supremes would agree with me that, given the plain language of 19-20-20, and the ruling of Durham v. Jenkins, the underlying judge had exceeded his authority in ordering the euthenasia of Tinkerbell in that the Blatts had not been convicted of a crime under 19-20-20.

Well, my happiness in reporting that Tinkerbell was spared the executioner's ministrations by the Supremes is only slightly tempered by the fact that, while we both agreed that Tinkerbell should not die, we came at the decision from two different paths.  I argued, as described above, that because the Blatts were innocent of having violated Section 19-20-20, there could be no further inquiry into whether Tinkerbell should be euthanized.  The Supremes, on the other hand, in an opinion authored by Justice Benjamin, sort of wiggled around their holding in Durham v. Jenkins and declared "[s]pecifically, a conviction in a criminal proceeding is not a prerequisite to the separate consideration of whether a dog should be destroyed."  Justice Benjamin then went on to write that the underlying court did not make a mistake in "engaging in a proceeding collateral to the criminal matter to determine whether Tinkerbell should be destroyed...", but that the court did make an error in engaging in a presumption that Tinkerbell, because she was a pit bull, was a vicious, dangerous dog, or one in the habit of biting other people.  Justice Benjamin went on to argue that because the legislature had not seen fit to include in the language of 19-20-20 a provision for breed specific assumptions, the courts should not permit such presumptions to influence their decisions.

It should be noted that Justice Benjamin is a good republican, and in keeping with the more conservative wing of the judiciary eschews what is sometimes described as judicial activism.  This wing of the judiciary also holds that the Constitution is a dead thing, and must be construed exactly as it is is written.

I, on the other hand, am slightly more liberal, and believe that the Constitution is a living document, and must be construed pursuant to precedent, and current context.

In the case of Code Section 19-20-20, Justice Benjamin and I came to the same result; he, by looking at the plain meaning of the words making up the code section, and seeing no words allowing breed specific presumptions, and I by looking at the Court's decision in Durham v. Jenkins which helped to interpret a less than well written code section.

I wonder how we would look at the similarly muddy language of the 2nd Amendment?  That is an argument for another day.  Today, I, as I am sure is Justice Benjamin, am just happy that Tinkerbell lives!    

Categories: The law

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