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In re Peterson's Dogs

December 16, 2008

IN THE MATTER OF LILA PETERSON'S DOGS
LILA PETERSON, APPELLANT
v.
STATE OF NORTH DAKOTA, APPELLEE



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice

REVERSED AND REMANDED.

[¶1] Lila Peterson appealed from a district court order canceling a hearing on the disposition of dogs seized at her residence. Peterson argues the district court erred in determining she voluntarily agreed to relinquish ownership of her dogs and she was not entitled to a hearing under N.D.C.C. § 36-21.1-06. We conclude Peterson was entitled to a hearing, and we reverse and remand for further proceedings.

I.

[¶2] On March 1, 2008, Burleigh County deputy sheriffs went to Peterson's home to investigate allegations regarding the care of multiple dogs at her residence and to remove the dogs from her care. Peterson signed a form entitled "relinquishment of ownership," which stated "I . . . voluntarily agree to relinquish ownership of dogs to the Burleigh County Sheriff's Department. I understand that this donation is permanent and I have no further claims or interests in these animals or their offspring." The deputies also gave Peterson a form entitled "notice of confiscation of animals," which said:

Notice is hereby given that all of the dogs being confined at your residence . . . are hereby confiscated by the Burleigh County Sheriff's Department, pursuant to the authority of Section 36-21.1-06 of the North Dakota Century Code for failure to provide necessary care for said animals.

You are further advised that said dogs may be sold or otherwise disposed of pursuant to court order if they have not been redeemed within 5 days, and that the animals will only be returned to you if the Burleigh County District Court determines that you can provide adequate care for said animals.

You must contact the Burleigh County Sheriff's Department within 5 days from the date of this order of your intent to redeem said animals.

The notice of confiscation was signed by the Burleigh County sheriff.

[¶3] Peterson sent the sheriff a response to the notice of confiscation on March 6, 2008. She claimed the sheriff's department was not authorized to take the animals, there was no evidence the animals were exposed to cold or inclement weather or that they were not properly fed and watered, and she did not own some of the animals. She demanded an immediate return of the animals or a court hearing to determine whether the animals were properly confiscated.

[¶4] On March 11, 2008, Peterson petitioned the district court for a hearing on the disposition of the animals under N.D.C.C. § 36-21.1-06. A hearing was scheduled. The State responded, requesting the "hearing be dismissed." The State argued the dogs were not confiscated under N.D.C.C. § 36-21.1-06(1), Peterson voluntarily relinquished ownership of the dogs, she did not have a cause of action under N.D.C.C. § 36-21.1- 06, and she was not entitled to a hearing. A copy of the signed relinquishment of ownership was attached to the State's response. On March 17, 2008, the district court cancelled the hearing finding, "Lila Peterson voluntarily agreed to relinquish ownership of her dogs to the Burleigh County Sheriff's Department. She is not entitled to a hearing under Section 36-21.1-06, N.D.C.C."

[¶5] Peterson appealed on April 21, 2008. In June 2008, Peterson moved to supplement the record on appeal under N.D.R.App.P. 10(h) to include the notice of confiscation, Peterson's March 6, 2008, response to the sheriff, and her response to the State's response to the petition for hearing and request for the hearing to be reset. Affidavits from Peterson, her husband, and a friend were attached to Peterson's response. Peterson's response and request to reset the hearing was dated March 18, 2008, and as part of her motion to supplement the record, she said her response and the affidavits were sent to the State and the court administrator's office but were not included with the record on appeal. The parties agreed to supplement the record, and the district court ordered the exhibits be made part of the court record.

II.

[ΒΆ6] Peterson argues the district court erred in finding she voluntarily relinquished her ownership rights to the dogs and the court was required to hold a hearing before determining ...


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