West v. Municipality of Anchorage

OPINION

I. INTRODUCTION

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, 2008, Kandi Treseott was visiting Knight's Auto Radio store in Anchorage and speaking with Jeffrey Knight, the store's owner and operator, while Treseott'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 Treseott, 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 *226and 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 erying 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 ery. 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, Treseott, 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 "[sleveral superficial red whelp-like seratch marks on [the] right cheek and one longer one on the [left] cheek." He also reported very superficial serapes on the forehead with mild redness and wrote, "[nlo puncture wounds or deep bruising or tenderness noted."

B. Proceedings

Treseott 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. Gummic 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)(8) 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 test 5 because "where an agency interprets its own regulation ... a deferential standard of review properly recognizes that the ageney is best able to discern its intent in *227promulgating 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: "[The 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 eriminal contempt proceedings, holding that civil contempt needed to be proved only by a preponderance of the evidence.15

*228No 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 Stnclair 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 eriminal 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 gjusdem generis, which has been explained as follows:

[When 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 form 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)(8) 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 *229aids 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 "(aln 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 classifications 29 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 "[the 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)(8), 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 serapes, cuts, punctures or other evidence of similar injuries."32

It is uncontested that (1) Gummiec was restrained 33 and (2) Gummie's actions result*230ed 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, Gum-mie 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 ery 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 mel. 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 erush Ethan's skull." Certainly a reasonable mind could have been persuaded by that testimony.

The hearing officer concluded that Gum-mie, while restrained, caused a physical injury (the uncontested serapes) which resulted in pain (as evidenced by the erying). Both elements of this determination were supported by substantial evidence and are thus affirmed.

v. CONCLUSION

We AFFIRM Gummie's classification because the decision of the hearing officer was *231correct on the issues of law and supported by substantial evidence.