gina turcotte v humane society waterville area - appellant's appeal brief

MAINE SUPREME JUDICIAL COURT

SITTING AS THE LAW COURT

KEN-14-52

GINA TURCOTTE

APPELLANT

v.

HUMANE SOCIETY WATERVILLE AREA

APPELLEE

APPELLATE BRIEF FOR APPELLANT

Gina Turcotte

APPELLANT 32 Court St Apt 1

Augusta, Maine

i

Table of Contents

TABLE OF AUTHORITIES ................................................................................ ii

STATEMENT OF FACTS AND PROCEDURAL HISTORY ................................... 1

ISSUE PRESENTED FOR REVIEW .................................................................. 5

1. WHETHER SUPERIOR COURT COMMITTED A PATENT ERROR OF LAW WHEN IT GRANTED APPELLEE'S 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE

GRANTED.

SUMMARY OF ARGUMENT ............................................................................. 5

STANDARD OF REVIEW ................................................................................. 6

ARGUMENT .................................................................................................. 11

1. SUPERIOR COURT COMMITTED A PATENT ERROR OF LAW WHEN IT GRANTED APPELLEE'S 12(b)(6) MOTION TO DISMISS FOR FAILURE

TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED. CONCLUSION ............................................................................................... 30

CERTIFICATE OF SERVICE .......................................................................... 33

ii

TABLE OF AUTHORITIES

CASES

Town of Burlington v. Hosp. Admin. Dist., 769 A. 2d 857 (2001)

Champagne v. Humane Society, 737 P. 2d 1279 (1987)

Carrier v. Secretary of State, 60 A. 3d 1241 (2012)

Daskalea v. Washington Humane Society, 480 F. Supp. 2d 16 (2007)

Richardson v. Winthrop School Department, 983 A.2d 400 (2009)

Connecticut Humane Society V. Freedom Of Information Commission Et Al.

218 Conn. 757 (1991)

Clarke v. TCAC & CONTROL SHELTER, 181 P. 3d 881 (2008)

Dow v. Caribou Chamber of Commerce and Industry, 2005 ME 113 (2005)

STATUTES

1 MRSA 400 et seq. 7 MRSA 3936(1) Inspection and Quarantine

7 MRSA 3936(2) Suspension of license

APPELLANT'S APPEAL BRIEF Page 1 of 36

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On September 17, 2012, Appellant and her service animal (cat) named

Smokey were unwillingly separated at the Budget Host hotel in Waterville.

On September 18, 2012, Appellant contacted City of Waterville Police

Department Animal Control asking for assistance to retrieve Smokey.

Waterville Police Department referred Appellant to Appellee as a state

agent for the purpose of retrieving, sheltering, and caring for missing animals.

Appellant immediately contacted Appellee and filed a report of a missing

animal indicating several times the animal is a service animal and must be

returned to Appellant immediately.

On September 19, 20 and 21, Appellant contacted Appellee and asked if

Smokey had been surrendered to their care.

Appellee denied possession of Smokey during those calls but affirmed

they had taken a missing animal report and would contact Appellant as soon

as Smokey was surrendered to their care.

Appellant posted public notices in the local area and on the internet.

Appellant gave Appellee access to public notices posted by Appellant on

the internet which had photographs of Smokey attached, all the while stressing

Appellant's need for an immediate reunion to receive Smokey's therapeutic

benefits.

On September 22, 2012, Appellant signed up to get notifications about

the humane society's Facebook postings with hopes Appellee would post notice

of Smokey when he was brought into their facility.


Smokey remained in the 1-mile area for 55 days from where he had last

contact with Appellant until he was surrendered to Appellee by a local resident.

On November 11 or 12, 2012, Linda Andrews, who lives within one mile

of the Budget Host hotel, found and surrendered Smokey to Appellee.

Appellee never initiated any contact with Appellant for any reason.

On January 4, 2013, at 4:38pm, Appellee placed a photograph of Smokey

(renamed "Shamoo") on their Facebook website indicating "Shamoo has been

adopted."

That same day, only three (3) hours later at 7:48pm, Appellant saw the

photograph of Smokey and posted a comment below the photograph claiming

ownership and demanding answers about his location.

On January 5, 2013, at 9am, Appellant telephoned Appellee demanding

answers about Smokey's whereabouts, health, welfare and an explanation why

Appellee failed to make a record of Appellant's report or contact Appellant when

Smokey was surrendered to their care.

On January 5, 2013 at 10am when Appellant received a return call by

Director Andrea Pasco, Appellant was told by Andrea Pasco that Appellant was

not going to get Smokey back because Andrea Pasco knows the stray cat law

and Appellant does not.

From January through August 2013, Appellant attempted various legal

strategies to gain access to public records documenting the treatment of stray

animals, as required by law.

Appellee has passionately opposed all of Appellant's requests for access.


On August 20, 2013, Appellant sent a FOAA request to Appellee, seeking

the name, address and phone number of the adopting party, in addition to all

intake records, photographs, and medical records for the following animal:

INTAKE DATE: November 12, 2012

SURRENDERED BY: LINDA ANDREWS, 26 LOUISE AVE, APT 6,

WATERVILLE

HSWA GIVEN NAME: SHAMOO

TYPE OF ANIMAL: Male Cat, Neutered

COLOR: Gold eyes, Grey/White med/long hair, white bib,

paws, legs

ADOPTED ON/ABOUT: January 4, 2013.

PHOTO:

In violation of 1 MRSA 408-A, Appellee has never "acknowledge[d]

receipt of a request made according to this section within 5 working days of

receiving the request" and never "provide[d] written notice of the denial, stating

the reason for the denial, within 5 working days of the receipt of the request".

On September 18, 2013 Appellant filed a complaint in superior court

because Appellant received no substantive responses from Appellee.


On December 2, 2013, service of process was completed to new Director

Kathleen Ross1 in hand by Allen Wood of the Kennebec County Sheriff's Office.

On December 11, 2013, proof of service and the original Summons were

filed by Appellant.

On December 13, 2013, Appellee subsequently filed a 12(b)(6) Motion to

Dismiss making false claims that Appellee is not a public organization.

On December 30, 2013, Appellant filed a Memorandum In Opposition To

Respondent's Motion To Dismiss For Failure To State A Claim Upon Which

Relief Can Be Granted With Supporting Exhibits And Incorporated

Memorandum Of Law with nine exhibits which serve as prima facie evidence of

Appellee's false statements and which fully support Appellant's claims that

Appellee is a public organization and state agent as defined by law.

On January 20, 2014, J. Murphy dismissed Appellant's Complaint, with

prejudice, stating, "The Humane Society, Waterville Area is not subject to 1

MRSA 400 et seq."

On January 29, 2014, Appellant filed a Notice of Appeal.

1 Kathleen Ross replaced Andrea Pasco as Director in mid-2013 when Andrea Pasco was publicly fired almost

immediately after Appellant filed a lawsuit against Appellee, as well as against Andrea Pasco individually and in her

official capacity as the Director when Smokey was reported missing and then subsequently surrendered. Appellant

contacted Kathleen Ross within Ms. Ross's first 72 hours as Director asking for immediate access to public records

about Smokey's care and current whereabouts, which were refused. Kathleen Ross has since rejected all calls from

Appellant.


ISSUE PRESENTED FOR REVIEW

1. WHETHER SUPERIOR COURT COMMITTED A PATENT ERROR OF LAW WHEN IT GRANTED APPELLEE'S 12(b)(6) MOTION TO DISMISS

FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.

SUMMARY OF ARGUMENT

Appellant's Complaint for Injunctive Relief restated an unrebutted

statement made by Appellee's counsel, Bryan B. Ward, Esq., for the record on

June 26, 2013 during a recorded public hearing for AUGDC-SA-2013-237, to

wit, ...if the court was to order the humane society to release the names [of

John/Jane Doe] we have no choice. Its not privileged under the law.

[emphasis added]

Appellant attached several pieces of photographic evidence to the original

Complaint showing beyond any doubt the cat Appellee named "Shamoo" which

was sold to John/Jane Doe is in fact "Smokey", the same cat Appellant has

cared for since 2008 which is the subject of her FOAA request and this appeal.

There are nine exhibits with Appellant's Memorandum In Opposition To

Appellee's 12(b)(6) Motion To Dismiss which substantiate all of Appellant's

allegations proving her claim that Appellee is a public organization and state

agent subject to the Freedom of Access Act.

Appellee's 12(b)(6) Motion to Dismiss dated December 13, 2013 states on

page 4, "...HSWA - being a private corporation - is not subject to the disclosure

provisions of the Maine Freedom of Access Act. It is not a public entity, does not


participate in public proceedings, and does not create or retain public records

within the meaning of the Freedom of Access Act."

Appellee's statement that it "does not participate in public proceedings,

and does not create or retain public records within the meaning of the Freedom of

Access Act" fails to satisfy the four-factor test, specifically, "(1) whether the

entity is performing a governmental function; (2) whether the funding of the entity

is governmental; (3) the extent of governmental involvement or control; and (4)

whether the entity was created by private or legislative action."

STANDARD OF REVIEW

"We review issues of statutory and constitutional interpretation de novo.

Id. We first look to the plain meaning of the statute, interpreting its language

"to avoid absurd, illogical or inconsistent results," Estate of Joyce v. Commercial

Welding Co., 2012 ME 62, 12, 55 A.3d 411 (quotation marks omitted), and

attempting to give all of its words meaning, Cobb v. Bd. of Counseling Prof'ls

Licensure, 2006 ME 48, 11, 896 A.2d 271. When a statute is unambiguous,

we interpret the statute directly, without applying the rule of statutory

construction that "prefers interpretations...that do not raise constitutional

problems," McGee, 2006 ME 50, 18, 896 A.2d 933, and without examining

legislative history, Ashe v. Enterprise Rent-A-Car, 2003 ME 147, 7, 838 A.2d

1157, or the agency's interpretation, Cobb, 2006 ME 48, 13, 896 A.2d 271.

"We look to legislative history and other extraneous aids in interpretation of a

statute only when we have determined that the statute is ambiguous." Liberty

Ins. Underwriters, Inc. v. Estate of Faulkner, 2008 ME 149, 15, 957 A.2d 94.


"A statute is ambiguous if it is reasonably susceptible to different

interpretations." Estate of Joyce, 2012 ME 62, 12, 55 A.3d 411." Carrier v.

Secretary of State, 60 A. 3d 1241 (2012)

When adjudicating a motion to dismiss for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6), the Court must view all the allegations

and facts in the complaint in the light most favorable to the plaintiffs, and it must

grant the plaintiffs the benefit of all inferences that can be derived from those

facts." Lindsey v. United States, 448 F.Supp.2d 37, 44 (D.D.C.2006) (citing Barr.

v. Clinton, 361 U.S.App. D.C. 472, 475, 370 F.3d 1196, 1199 (D.C.Cir.2004)).

"The court is limited to considering facts alleged in the complaint, any documents

attached to or incorporated in the complaint, matters of which the court may take

judicial notice, and matters of public record." Johnson v. Long Beach Mortg. Loan

Trust 2001-4, 451 F.Supp.2d 16, 27 (D.D.C.2006) (citing EEOC v. St. Francis

Xavier Parochial Sch., 326 U.S.App. D.C. 67, 70, 117 F.3d 621, 624

(D.C.Cir.1997)) (other citation omitted). "[A] complaint should not be dismissed for

failure to state a claim unless it appears beyond doubt that the plaintiff[s] can

prove no set of facts in support of [their] claim which would entitle [them] to relief."

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)

(footnote omitted). "The complaint need only set forth a short and plain statement

of the claim, giving the defendant fair notice of the claim and the grounds upon

which it rests." Runkle v. Gonzales, 391 F.Supp.2d 210, 220 (D.D.C.2005)

(citations omitted).

An examination of the explicit powers and functions bestowed by the

Government upon the Washington Humane Society demonstrates that the

Humane Society must be considered a government actor. See San Francisco Arts


& Ath. v. United States Olympic Comm., 483 U.S. 522, 548, 107 S.Ct. 2971,

2987, 97 L.Ed.2d 427 (1987) (Brennan, J., dissenting). As Plaintiffs allege in the

amended complaint, the "Washington Humane Society, and the individually

named agents and officers thereof, perform traditional, core, police, prosecutorial,

and judicial functions." First Am. Compl. at 29. This includes the specific

statutory authority to "prosecute all violations of the [District's] animal cruelty

laws," id. at 29(a) (citing D.C.Code 22-1006), "to appear before magistrates to

swear out warrants for the searches of private homes," id. at 29(b) (citing

D.C.Code 22-1005), and to collect "fines and forfeitures imposed by judges of

the Superior Court," id. at 29(c) (citing D.C.Code 22-1006). These statutory

grants of power are in addition to the Humane Society's authority to seize "any

animal to protect it from neglect or cruelty." D.C.Code 22-1004(b)(1) (2003

Suppl.). The Court therefore agrees with Plaintiffs that the Humane Society

performs "traditional, government functions, which constitute `state action.'" Plts.'

Opp'n. at 15. As "[t]he [Supreme] Court has repeatedly held . . . `when private

individuals or groups are endowed by the State with powers or functions

governmental in nature, they become agencies or instrumentalities of the State

and subject to its constitutional limitations.'" San Francisco Arts & Ath., 483 U.S.

at 549, 107 S.Ct. at 2987- 88 (quoting Evans v. Newton, 382 U.S. 296, 299, 86

S.Ct. 486, 488, 15 L.Ed.2d 373 (1966)) (other citations omitted).

The notion that a local humane society performs a traditional,

governmental function law enforcement has been recognized in other

jurisdictions. For example, in Brunette v. Humane Society of Ventura County, the

Ninth Circuit recognized that the "Humane Society and its officers are state actors

for the purposes of 1983." 294 F.3d 1205, 1208 (9th Cir.2002).


In reaching this conclusion, that court noted that the "Humane Society was

created by special California statute, and [that] it engages in a quasi-public

function." Id. at 1208. Much like the Washington Humane Society employees here,

the humane society employees in Brunette were "invested with authority to

investigate reports of animal cruelty, impound animals, place liens on property,

and bring criminal charges against citizens." Id. See also Tennessee v. Adkisson,

2001 WL 1218570, *3-5, 2001 Tenn.Crim.App. LEXIS 832, *8-15

(Tenn.Crim.App.2001) (concluding humane society officers searching private

property qualify as "`state actors' . . . subject to constitutional limitations"); Studer

v. Seneca County Humane Soc'y, 2000 WL 566738, *3, 2000 Ohio App. LEXIS

1974, *8-9 (Ohio Ct.App.2000) (concluding the "primary purpose" of local humane

societies "is law enforcement, an activity traditionally reserved for the

government"); Putnam County Humane Soc'y, Inc. v. Woodward, 740 So.2d 1238,

1240 (Fla.Dist.Ct.App.1999) (holding Public Records Act was applicable to

humane society "as an agent of the state" because "the Society ha[d] used its

statutory authority to investigate acts of animal abuse and . . . to seize

animals").[14]

The District of Columbia has given the Humane Society the authority to

prosecute violations of its animal cruelty law, see D.C.Code 22-1006, obtain

warrants, see D.C.Code 22-1005, search private residences, see id., seize

personal property, see D.C.Code 22-1004, and collect fines, see D.C.Code 44-

1506.[15] This type of conduct is akin to a State's law enforcement power, which

"`may be fairly treated as that of the State itself.'" Williams, 364 U.S.App. D.C. at

384, 396 F.3d at 414 (quoting Brentwood Acad., supra). For this reason, the

Court concludes that the Washington Humane Society performs a distinctive,


traditional governmental function and that its employees were acting "under color

of state law" for purposes of 42 U.S.C. 1983. See Donnelly v. Zekan, 2000 WL

762811, *6, 2000 Ohio App. LEXIS 2509, *19-20 (Ohio Ct.App.2000) ("[T]his Court

concludes that when the Humane Society and its representatives detained

[Plaintiff], searched his home and seized his horses, they were acting under color

of law."). Plaintiffs' constitutional claims resting on 42 U.S.C. 1983, as they

relate to the Washington Humane Society Defendants and Defendants Scnoor

and Boozer, survive dismissal.

The Humane Society has been given near total authority to enforce the

District of Columbia's animal protection law. This includes the unfettered

discretion to seize any animal that a Humane Society employee considers to be

neglected. See Anderson v. George, 160 W.Va. 76, 79, 233 S.E.2d 407

(W.Va.1977) (concluding that "the line between acceptable and cruel treatment

must be judicially determined in an expeditious manner," and not simply left to a

"humane officer, who is a law enforcement officer, not an independent magistrate

or judicial officer, [and who] determines in his sole and unfettered discretion that

the animals are `abandoned, neglected, or cruelly treated'"); Jenks v. Stump, 41

Colo. 281, 288, 93 P. 17 (Colo.1907) ("[W]e find the statute seeks to clothe the

Humane Society and its agents with extraordinary powers. By its terms the agent

is the sole judge of whether an animal is neglected, abandoned or ill treated, and

whether it has sufficient food, nourishment and shelter. The truth respecting the

matter cannot avail, because the agent is clothed with power to take possession

of the animals regardless of their condition."). The Humane Society may seize an

animal without obtaining a warrant first. Nor is it required to conduct a hearing

before seizing an animal. Fuentes v. Shevin, 407 U.S. 67, 81, 92 S.Ct. 1983,


1994, 32 L.Ed.2d 556 (1972) ("If the right to notice and a hearing is to serve its

full purpose, then, it is clear that it must be granted at a time when the

deprivation can still be prevented."). That the seizure of the animal may be

temporary does not "alter the need for due process," Carrera v. Bertaini, 63

Cal.App.3d 721, 726, 134 *35 Cal.Rptr. 14 (Cal.Ct.App.1976), for "it is now well

settled that a temporary non-final deprivation of property is nonetheless a

`deprivation' in terms of the Fourteenth Amendment," Fuentes, 407 U.S. at 84-85,

92 S.Ct. at 1996 (citing Sniadach, 395 U.S. at 342, 89 S.Ct. at 1823; Bell v.

Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971)).

In short, "the potential for abuse on the part of the . . . humane society is

tremendous." Gonzalez, 403 Pa.Super. at 173, 588 A.2d 528.

Daskalea v. Washington Humane Society, 480 F. Supp. 2d 16 (2007)

ARGUMENT 1. SUPERIOR COURT COMMITTED A PATENT ERROR OF LAW WHEN IT

GRANTED APPELLEE'S 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.

The standard of review for a motion to dismiss for failure to state a claim

upon which relief can be granted is well settled. The motion must be decided

based solely on the allegations in the Appellant's complaint. See Fed.R.Civ.P.

12(d). The court does not decide disputed issues of fact; instead, it must

assume that all material facts in the Appellant's complaint are true. Tellabs,

Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007). Not only must the

court accept the Appellant's allegations as true, but it also must accept as true

all reasonable factual inferences drawn from Appellant's allegations. See Kowal


v. MCI Comm'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir 1994); Schuler v. United

States, 617 F.2d 605, 608 (D.C. Cir. 1970).

Appellee states in the 12(b)(6) Motion to Dismiss, pg 1 2, "A complaint is

properly dismissed for failure to state a claim upon which relief can be granted

when it is beyond doubt that the plaintiff is entitled to no relief under any set of

facts that might be proven in support of the claim." Richardson v. Winthrop

School Department, 983 A.2d 400 (Me. 2009). Appellee further states, on pg 4

2, "the court has no authority under the Freedom of Access Act to compel a

private corporation to divulge private information, confidential records, or trade

secrets", but these are not the true facts of this instant case.

Appellant's Complaint, pg 2 line 14, indisputably states, "HUMANE

SOCIETY WATERVILLE AREA is a privately-owned, public benefit, non-profit

agency supported by 95% public donations for the purpose of sheltering,

reuniting and re-homing lost and abandoned animals."

Appellant's Complaint, pg 3 1, further reveals the unrebutted pivotal

fact that Appellee's counsel, Bryan B. Ward, Esq., testified on the record on

June 26, 2013 during a hearing for AUGDC-SA-2013-237, we're going to

respond to that discovery request by claiming privilege andimmunity

[but] if the court was to order the humane society to release the

names [of John/Jane Doe] we have no choice. Its not privileged under the

lawbut we would object under our internal policies.

HSWA correctly indicates they " have] no choice. It's not privileged

under the law."


Appellee's empty desperate objection under their internal policies is not

sufficient legal grounds for dismissal under Rule 12(b)(6).

Evidently the superior court did not review or consider any of Appellant's

pertinent facts within or the many exhibits attached to her pleadings proving

Appellee is in fact a public organization which Appellee themselves constantly

affirm on their yearly government mandated public IRS-990 Form, Public

Charity Status and Public Support, indicating HSWA "is not a private

foundation because it is...An organization which receives a substantial

part of its support from a governmental unit or the general public

described in section 170(b)(1)(A)(vi)".

Appellee consistently reports "the organization qualifies as a publicly

supported organization" because it receives 33 1/3 % or more of its support

from a government unit or the general public.

Additionally, the record shows unchallenged proof of Appellee's state-

sanctioned authority by way of written contract with political and municipal

subdivisions to engage in state-sanctioned activities, namely statutorily-

required police enforcement of animal welfare laws, seizure, control and care of

special private property for private corporate commercial purposes while never

affording the public any due process of law, inter alia,

"Because law enforcement is traditionally a function of the government, the

society performs a governmental function to the extent that it engages in the law

enforcement activities authorized by statute. See General Statutes 29-108b

and 29-108c. Because legislation designed to protect animals from cruelty and


neglect is recognized as a valid exercise of the police power; 4 Am. Jur. 2d,

Animals 27; arguably, the society also performs a governmental function

insofar as it engages in the statutorily authorized activities involving the

detention, shelter and euthanasia of animals. See General Statutes 29-108e,

29-108g. ... Moreover, the state still plays a predominant role in preventing the

cruel and inhuman treatment of animals. See, e.g., General Statutes 22-272a

(approved methods of slaughter), 22-329 (prevention of cruelty to dogs and

other animals), 22-332a (restrictions on use of dogs for medical research), 22-

336 (maintenance of dog pounds), 22-342 (b) (inspection of kennels), 22-415

(prevention of cruel and inhuman treatment of equines).

Local police, dog wardens and the department of agriculture routinely use

the society to investigate complaints of animal abuse and neglect. The society

issues warnings and refers continuing instances of animal cruelty and neglect to

the office of the state's attorney. The office of the state's attorney and the police

rely upon the society to hold detained animals and to provide expertise upon

request." Connecticut Humane Society V. Freedom Of Information Commission Et

Al. 218 Conn. 757 (1991)

Appellee is obviously lying to either the court or the IRS about their legal

status.

Appellee deserves sanctions for lying in sworn legal proceedings.

Additionally, superior court behaved with extreme bias when it sustained

Appellee's frivolous, contradictory and unsupported claim that "...HSWA - being

a private corporation - is not subject to the disclosure provisions of the Maine

Freedom of Access Act. It is not a public entity, does not participate in public


proceedings, and does not create or retain public records within the meaning of

the Freedom of Access Act."

Superior court clearly did not apply the "four-factor 'functional equivalent

balancing test to determine if an entity is to be regarded as a public agency for

purposes of the PDA: (1) whether the entity performs a governmental function; (2)

the level of government funding; (3) the extent of government involvement or

regulation; and (4) whether the entity was created by the government. Id. at 162,

974 P.2d 886. Under Telford, each of these criteria need not be equally satisfied,

but rather the criteria on balance should suggest that the entity in question is the

functional equivalent of a state or local agency." as cited in Appellant's

Memorandum in Opposition, pg 5 line 4.

Clarke v. TCAC & CONTROL SHELTER, 181 P. 3d 881 (2008) further

states,

"In Spokane Research, this Division saw no need to apply Telford's four-

factor test because there was "no ambiguity as to the Association's

nongovernmental status," and thus it was not subject to the PDA. Spokane

Research, 133 Wash.App. at 608, 137 P.3d 120. But here, TCAC is not so

obviously beyond the reach of the PDA.[4] Thus, we engage in a Telford analysis

to determine whether TCAC is an "other local agency" subject to the PDA. Under

Telford, we conclude that TCAC is the functional equivalent of a public agency.

Function. TCAC's purpose is to perform animal control services for the tri-

cities area...It recognizes the authority of cities and counties to pass local

ordinances regulating the care and control of animals... In turn, the statute

acknowledges that cities and counties may contract with animal care and control


agencies to perform these duties... An entity becomes an animal care and control

agency when it is "authorized to enforce city or county municipal ordinances

regulating the care, control, licensing, or treatment of animals within the city or

county," or when it contracts with the city or county as a humane society to

provide those services... In any event, an animal care and control agency "may

enforce the provisions of [chapter 16.52 RCW] only if the county or city legislative

authority has entered into a contract with the agency to enforce [those

provisions]." Former RCW 16.52.015(1) (emphasis added).

TCAC is authorized by the local government to provide animal control

services. Under former RCW 16.52.011(2)(b), it is therefore an animal care and

control agency. Individuals associated with TCAC take oaths as animal control

officers; animal control officers can only be employed by an animal care and

control agency. See former RCW 16.52.011(2)(c). As part of the oath, the

employees of TCAC agree to enforce the area's animal control regulations. As

regulators, TCAC and its officers execute police powers in carrying out their

duties, most notably impounding and destroying private citizens' pets. These

types of acts implicate due process concerns. See, e.g., former RCW 16.52.085

(discussing situations in which an animal control officer does or does not need a

warrant to remove an animal from private property). The implication of police

powers is clear from the language of former RCW 16.52.015(2), which requires

animal control officers to comply with "the same constitutional and statutory

restrictions concerning the execution of police powers imposed on law

enforcement officers who enforce this chapter." Because a local government

grants TCAC the ability to execute police powers pursuant to state statute, TCAC

is performing a governmental function. Cf. Champagne v. Spokane Humane Soc'y,


47 Wn. App. 887, 891, 737 P.2d 1279, review denied, 108 Wn.2d 1035 (1987)

(humane society acting as a public entity for the purpose of the public duty

doctrine when City of Spokane contracted with it and delegated it the authority to

enforce the animal regulations); Brunette v. Humane Soc'y, 294 F.3d 1205, 1208

(9th Cir. 2002) (noting that a humane society created by statute and holding

police powers was a state actor for the purposes of 42 U.S.C. 1983 litigation),

cert. denied, 537 U.S. 1112 (2003).

But while TCAC is performing a governmental function, Telford's analysis

seems to hinge on whether the entity's duties can be delegated to the private

sector. Telford, 95 Wn. App. at 165. Although the function here was assigned to

the private sector, such delegation may only occur via a contractual relationship

between the city and the animal control agency. Former RCW 16.52.015(1).

Hence, the nature of the delegation merely allows TCAC to step into the shoes of

the local government.[6] In short, while the local government can delegate the

performance authority for this public function to a private entity, it cannot

delegate away its statutory responsibility to perform within PDA legal

requirements. TCAC's performance depends on its contract with the cities

involved. Former RCW 16.52.015(1). Thus, TCAC is performing a governmental

function that can never be wholly delegated to the private sector. Said another

way, were we to conclude that TCAC is not a functional equivalent of a public

agency, we would be setting a precedent that would allow governmental agencies

to contravene the intent of the PDA and the Public Records Act by contracting with

private entities to perform core government functions. All told, this factor balances

in favor of finding that TCAC is the functional equivalent of a public agency.


Government Funding. Nearly all of TCAC's operating budget comes from

public money. TCAC occupies space in a building rent-free, subsidized by the

local government with which it contracts, and it is forbidden by the terms of that

contract from engaging in any business on that premises other than its animal

control services. Thus, this factor clearly weighs in favor of application of the PDA.

Government Control. TCAC is in control of its day-to-day operations, and

maintains its own insurance. Its employees are not considered public employees

and receive no benefits from the local government. However, as noted above,

there are some government restrictions on how the government facilities can be

used. In addition, TCAC is only permitted to provide euthanasia services in a

manner approved by ACA. TCAC is also required to keep records and submit

monthly reports to ACA. Thus, there is a notable degree of governmental control

here and this factor weighs in favor of finding that TCAC is the functional

equivalent of a public agency.

Origin. TCAC was formed as a private corporation, by private citizens, and

is not an entity created by the government. Although it could not perform its

function without its relationship to the local government, this factor weighs

against PDA application.

Balancing. Construing the PDA liberally in favor of the fullest possible

public records access, we balance these aforementioned factors. On balance, we

conclude TCAC is the functional equivalent of a public agency. While TCAC has

some non-public functions and characteristics, the fact that it performs a

governmental function dependent upon its relationship with the local government,

receives the bulk of its funding from taxpayer money to perform that function, and


is subject to regular government oversight, all tip the scale in favor of finding that

TCAC is the functional equivalent of a public agency."

Appellee's authority and activities are perfectly aligned with the Telford

analysis, as follows:

Function: HSWA's "purpose is to perform animal control services for

[twenty-nine municipalities]...It recognizes the authority of cities and

counties to pass local ordinances regulating the care and control of

animals... [HSWA] is authorized by the local government to provide

animal control services... [HSWA] and its officers execute police

powers in carrying out their duties, most notably impounding and

destroying private citizens' pets. These types of acts implicate due

process concerns... Because a local government grants [HSWA] the

ability to execute police powers pursuant to state statute, [HSWA] is

performing a governmental function... Although the function here

was assigned to the private sector, such delegation may only occur

via a contractual relationship between the city and the animal

control agency... Hence, the nature of the delegation merely allows

[HSWA] to step into the shoes of the local government. In short, while

the local government can delegate the performance authority for this

public function to a private entity, it cannot delegate away its

statutory responsibility to perform within PDA legal requirements.

[HSWA]'s performance depends on its contract with the cities


involved...Thus, [HSWA] is performing a governmental function that

can never be wholly delegated to the private sector."

Government Funding: "Nearly all of [HSWA]'s operating budget comes

from public money."

Government Control: "[HSWA] is only permitted to provide euthanasia

services in a manner approved by [Dept. of Agriculture, Div. of

Animal Welfare, and in accordance with MRSA]. [HSWA] is also

required to keep records and submit monthly reports to [Dept. of

Agriculture, Div. of Animal Welfare, and in accordance with MRSA].

Thus, there is a notable degree of governmental control here and this

factor weighs in favor of finding that [HSWA] is the functional

equivalent of a public agency."

Origin: "[HSWA] was formed as a private corporation, by private

citizens, and is not an entity created by the government. Although it

could not perform its function without its relationship to the local

government, this factor weighs against PDA application."

Balancing: "Construing the PDA liberally in favor of the fullest possible

public records access, [this court must] balance these

aforementioned factors. On balance, [this court must] conclude

[HSWA] is the functional equivalent of a public agency. While

[HSWA]has some non-public functions and characteristics, the fact

that it performs a governmental function dependent upon its


relationship with the local government, receives the bulk of its

funding from taxpayer money to perform that function, and is

subject to regular government oversight, all tip the scale in favor of

finding that [HSWA]is the functional equivalent of a public agency."

Appellee's activities are regulated by legislature and government entities,

as partially indicated in Appellant's Memorandum in Opposition, pg 3 line 22,

7 MRSA 3936(1) Inspection and Quarantine establishes mandatory

control over Respondent's action, to wit, " The commissioner, a state humane

agent, a veterinarian employed by the State or a licensed veterinarian at the

direction of the commissioner may, at any reasonable time, enter an animal

shelter...and make examinations and conduct any recognized tests for the

existence of contagious or infectious diseases or conditions... The commissioner

may inspect animal shelters... in accordance with the sanitation and health rules

established by the department and for compliance with laws and rules, including

licensing and permitting requirements, of the Department of Inland Fisheries and

Wildlife pertaining to wildlife importation and possession. In conducting

inspections, measures established by the department through rulemaking must

be used to prevent the spread of infectious and contagious diseases. Rules

adopted pursuant to this subsection are major substantive rules as defined in

Title 5, chapter 375, subchapter 2-A..." and "are subject to an increased level of

rule-making requirements." under 5 MRSA 8072. Legislative review of major

substantive rules.

7 MRSA 3936(2) Suspension of license indicates "The department

may, in accordance with Title 5, chapter 375, subchapter 5, revoke or suspend


a[n] animal shelter ... license if a person maintaining the ...animal shelter ...

violates any quarantine or maintains animals contrary to the rules adopted by

the department, fails to keep records required by the department or violates any

provision of the laws or rules of the Department of Inland Fisheries and Wildlife

pertaining to wildlife importation and possession."

Additionally, as proven by the contract between Appellee and City of

Waterville, and evidenced in the record, "HSWA signed a contract with

Town/City of Waterville, signed by the Municipal Town Officer and HSWA's

Executive Director, stating, in part,

"THIS AGREEMENT, entered into on July 1,2013 by and between the

Town/City (hereafter called town) of Waterville, Maine and the Humane Society-

Waterville Area (hereafter called Shelter) is in effect from July 1, 2013 through

June 30,2014.

By statue, ALL towns are either required to maintain an animal shelter or

otherwise provide such services with regard to stray domestic animals.

The SHELTER is hereby employed and authorized to act as an animal

shelter and is equipped to provide such services in compliance with statutory

requirements. The SHELTER will provide food, water, shelter, medical care,

and/or any other humane treatment for such domestic animals while they are in

possession of the SHELTER.

By statute, Title 7 MRSA, Section 3947,every town shall appoint one or

more Animal Control Officer(s) (hereafter called ACO). The ACO from the City of

Waterville shall transport stray and abandoned domestic animals (which shall

include cats and ferrets) to the SHELTER. Transportation must be carried out in a

humane manner, Title 7 MRSA, Section 3981. et. reg.


The ACO will ensure that sick or injured animals at large receive proper

medical attend and transport said animals directly to a licensed veterinarian.

Veterinary costs incurred for stray animals are the responsibility of the Town

from which the animal is transported unless the owner is found."

Furthermore, this court's decision in Dow v. Caribou Chamber of

Commerce and Industry, 2005 ME 113 (2005) is on point in this case,

"The purpose of FOAA is to open public proceedings and require that public

actions and records be available to the public." Town of Burlington v. Hosp.

Admin. Dist. No. 1, 2001 ME 59, 13, 769 A.2d 857, 861; see also Great N.

Paper, Inc. v. Penobscot Nation, 2001 ME 68, 43, 770 A.2d 574, 587. To

promote such objectives, FOAA must be liberally construed. 1 M.R.S.A. 401

(1989); Town of Burlington, 2001 ME 59, 13, 769 A.2d at 861. Thus, "[t]he

burden of proof is on the agency or political subdivision to establish just and

proper cause for the denial of a FOAA request." Town of Burlington, 2001 ME 59,

13, 769 A.2d at 861.

[10] The provisions of FOAA mandate disclosure with regard to both

public records and public proceedings. 1 M.R.S.A. 401, 403, 408 (1989 &

Supp. 2004). Public records are subject to disclosure pursuant to 1 M.R.S.A.

408, which states that "every person has the right to inspect and copy any public

record during the regular business hours of the agency or official having custody

of the public record within a reasonable period of time after making a request to

inspect or copy the public record." 1 M.R.S.A. 408(1) (Supp. 2004). The statute

defines "public records" as:

The term "public records": means any written, printed or graphic matter or

any mechanical or electronic data compilation from which information can be


obtained . . . that is in the possession or custody of an agency or public official of

this State or any of its political subdivisions . . . and has been received or

prepared for use in connection with the transaction of public or governmental

business or contains information relating to the transaction of public or

governmental business . . . .

1 M.R.S.A. 402(3) (Supp. 2004). Thus, "[t]o determine whether the

requested documents are public records we first look to whether [CCCI] is an

agency or political subdivision." Town of Burlington, 2001 ME 59, 14, 769 A.2d

at 861-62. The trial court based its entry of a summary judgment on its

conclusion that CCCI is a private entity.[1]

[11] Title 1 M.R.S.A. 403 requires that "all public proceedings shall be

open to the public, any person shall be permitted to attend any public proceeding

and any record or minutes of such proceedings that is required by law shall be

made promptly and shall be open to public inspection." 1 M.R.S.A. 403 (1989).

"[P]ublic proceedings" are further defined as "the transactions of any functions

affecting any or all citizens of the State by... [a]ny board, commission, agency or

authority of any county, municipality, school district or any regional or other

political or administrative subdivision." 1 M.R.S.A. 402(2)(C) (Supp. 2004). Thus,

the disclosure of public proceedings information also depends on the public status

of the entity from which the documents are requested.

[12] When evaluating whether an entity qualifies as a public agency or

political subdivision, we have "looked to the function that the entity performs."

Town of Burlington, 2001 ME 59, 16, 769 A.2d at 862-63. In doing so, we

consider four factors: "(1) whether the entity is performing a governmental

function; (2) whether the funding of the entity is governmental; (3) the extent of


governmental involvement or control; and (4) whether the entity was created by

private or legislative action." Id. Although these factors should be "considered and

weighed," an entity need not strictly conform to each of the factors. Id.

[13] In Town of Burlington, for example, we considered whether a

Hospital Administrative District (HAD) qualified as an agency or political

subdivision, and thus whether its records were subject to disclosure pursuant to

FOAA. Id. 2, 769 A.2d at 859. We evaluated the HAD pursuant to the four

factors and concluded that it indeed functioned as a political subdivision because

it provided a governmental health care function; it had the power to tax and issue

bonds, even though tax funds were not being used to finance it at that time; its

management staff was determined by elected citizens of the town; and it was

created as an entity by an act of the Maine Legislature. Id. 17, 769 A.2d at 863;

see also Great N. Paper, Inc., 2001 ME 68, 56, 59, 770 A.2d at 590, 591

(concluding that the Penobscot Tribe qualifies as a municipal agency, and

therefore that its public records are subject to disclosure pursuant to FOAA).

This court, in Town of Burlington v. Hosp. Admin. Dist., 769 A. 2d 857

(2001), has clearly established,

II. APPLICABILITY OF FOAA

[ 12] This case involves the construction of two statutory schemes.

Statutory construction is an issue of law; therefore, we review the Superior

Court's construction of the statutes de novo. Springfield Terminal Ry. Co. v. Dep't

of Transp., 2000 ME 126, 8, 754 A.2d 353, 356.

[ 13] The first statutory scheme at issue is FOAA. FOAA mandates a

liberal construction "to promote its underlying purposes and policies ...." 1

M.R.S.A. 401 (1989). The purpose of FOAA is to open public proceedings and


require that public actions and records be available to the public. Id. The burden

of proof is on the agency or political subdivision to establish just and proper

cause for the denial of a FOAA request. Springfield Terminal, 2000 ME 126, 9,

754 A.2d at 356; see also 1 M.R.S.A. 409(1) (1989).

[ 14] FOAA provides that every person has the right to inspect and copy

any public record. 1 M.R.S.A. 408 (1989). FOAA defines "public record" as: [A]ny

written [or] printed ... matter ... that is in the possession or custody of an agency

or public official of this State or any of its political subdivisions, ... and has been

received or prepared for use in connection with the transaction of public or

governmental business... Id. 402(3) (Supp.2000). To determine whether the

requested documents are public records we first look to whether HAD #1 is an

agency or political subdivision.[7] Because the definitional provisions of FOAA do

not explicitly state that hospital districts come within its coverage, we turn to the

second statutory scheme at issue in the case, the enabling statute for HAD #1, to

glean whether it provides that HAD #1 is an agency or political subdivision.

[ 15] We have recited at length the authority given to HAD #1 in the

enabling legislation. On the basis of the burdens and duties granted to HAD #1

by the Maine Legislature, we conclude that HAD #1 functions as a political

subdivision because it has many of the same characteristics of a political

subdivision. It is a "body politic" and a creature of the Legislature.

We found the term "body politic and corporate" to be significant in

determining that a transit district is a political subdivision for purposes of the

Maine Tort Claims Act. Young v. Greater Portland Transit Dist., 535 A.2d 417,

418 (Me.1987). HAD #1 is charged with carrying out a public purpose, that is,

providing for the health care of the inhabitants of the district. It has the power to


raise revenue through the issuance of bonds and levying taxes. The towns in the

district are responsible for the debts of the district. HAD #1 is governed by a

board of directors elected by the qualified voters of the towns in the district. Upon

dissolution of the district, its assets revert to the towns. The significant powers

and duties granted to HAD #1 by the Legislature are characteristics generally

reserved for political subdivisions.

[ 16] When determining whether an entity is a public agency or body for

purposes of public disclosure laws, other jurisdictions have looked to the function

that the entity performs. See, e.g., Conn. Humane Soc'y v. Freedom of Info.

Comm'n, 218 Conn. 757, 591 A.2d 395, 398 (1991) (holding that humane society

is not equivalent of public agency); Mem'l Hosp.-West Volusia, Inc. v. News-

Journal Corp., 729 So.2d 373, 380 (Fla.1999) (holding hospital system functioned

as public agency);[8] News & Observer Publ'g Co. v. Wake County Hosp. Sys.,

Inc., 55 N.C.App. 1, 284 S.E.2d 542, 549 (1981) (holding expense and other

records of hospital subject to disclosure);[9] Cleveland Newspapers, Inc. v.

Bradley County Mem'l Hosp. Bd. of Dirs., 621 S.W.2d 763, 766

(Tenn.Ct.App.1981) (holding payroll records of hospital created by private

legislation subject to disclosure).[10] Factors which courts generally consider

include: (1) whether the entity is performing a governmental function; (2) whether

the funding of the entity is governmental; (3) the extent of governmental

involvement or control; and (4) whether the entity was created by private or

legislative action. Conn. Humane Soc'y, 591 A.2d at 397. See also Telford v.

Thurston County Bd. of Comm'rs, 95 Wash.App. 149, 974 P.2d 886, 893-95

(1999) and cases cited therein. The courts do not require that an entity conform to


all factors, but that the factors be considered and weighed.[11] Conn. Humane

Soc'y, 591 A.2d at 397; Telford, 974 P.2d at 894.

[ 17] What the above-cited cases have in common is an inspection of the

functions of the entity under examination and a determination of whether, on

balance, the entity functions as a public agency. Our review of the functions of

HAD #1 convinces us that it functions as a political subdivision. First, it performs

what has been viewed as a governmental function, that of providing health care.

Second, although tax-generated funds are not currently used to finance the

operations of HAD #1, it has issued bonds under its legislative authority, and it

has the power to tax. Furthermore, the towns in the district are ultimately

responsible for the debts of HAD #1, and its assets will revert to the towns upon

dissolution. Third, the control of HAD #1 is in the hands of citizens elected from

each town in the district. The number of directors and manner of election is

directed by statute. Finally, it was created by the Maine Legislature.

Because HAD #1 functions as a political subdivision, we conclude that it

meets the definition of "political subdivision" in FOAA.

[ 18] Having concluded that HAD #1 is a political subdivision for the

purposes of FOAA, we next determine whether the records requested from HAD

#1 by the Town come within the definition of "public records" in section 402(3) of

FOAA. Records that are "received or prepared for use in connection with the

transaction of public or governmental business" are public records.

It is an undisputed fact on the record that Appellee is required by law to

maintain and disclose all data about every animal surrendered to them to the

Maine Department of Agriculture, Division of Animal Welfare, as confirmed to


Appellant by Liam Hughes, Director of Animal Welfare as evidenced unrebutted

in the record.

Furthermore, twenty-nine towns in the area pay a substantial portion of

their budget to the Appellee at a contracted per capita rate of $1.62 which is

subject to regular review and modification.

Appellee's budget is mainly funded by public tax deductible donations

given by private individuals, many of those donors also being direct customers.

Appellee is in fact subject to significant control, governance and legal

inspection for accurate recording of stray, missing and abandoned animals,

inter alia, as evidenced in Appellant's Memorandum in Opposition, pg 4 line 19,

and unrebutted by Appellee.

Champagne v. Humane Society, 737 P. 2d 1279 (1987) states,

"Although the Society is incorporated as a private, nonprofit

corporation, the City of Spokane has contractually delegated to the Society

the authority to enforce the animal regulations of its ordinance. See RCW

16.52.020; Storey v. Seattle, 124 Wash. 598, 602-04, 215 P. 514 (1923).

Likewise, the obligations contractually undertaken by the Society are no

different than those otherwise owed by Spokane to the general public.

Thus, in assuming those animal control duties contractually, the Society is

essentially acting as a public entity. See State ex rel. State Humane Soc'y

v. Hovey, 159 Wash. 584, 587, 294 P. 258 (1930) (Humane Society "is not

organized for the personal benefit of an individual or the personal benefit

of any set of individuals, but is organized for the public good, and is in its


substance and effect a public corporation."); Storey, at 602 (Humane

Society is "a public corporation, created by state law, to enforce its penal

laws relating to the regulation of cats and dogs.")."

CONCLUSION

Despite an abundance of clear and convincing evidence in support of

Appellant's Complaint, J. Murphy egregiously and knowingly ignored evidence,

long-standing statutes, and high court precedents dismissing the complaint

with prejudice and granted Appellee's 12(b)(6) Motion with an abundance of

evidence contradicting the superior court's decision that "The Humane Society,

Waterville Area is not subject to 1 MRSA 400 et seq."

If J. Murphy read any of Appellant's evidence and acted without negative

bias toward Appellant, she would see that Appellee has consistently claimed to

be a "public organization" on their IRS-990 form as well as having written and

binding contracts to engage in police activities in twenty-nine municipalities

without affording anyone any protections of constitutional due process.

The record and evidence proves Appellee is a state actor and public

organization by virtue of Appellee being unable to fulfill their essential mission

without explicit legislative support and municipal authority which has been

granted to them by twenty-nine municipalities affecting thousands of people.

J. Murphy's actions rise to the level of creating an ongoing personal tort

against Appellant in that J. Murphy's worthless determination that Appellee is

not a public organization has directly prevented Appellant from regaining


possession of a medically-mandated therapeutic device (Smokey) and resuming

therapeutic services which she had received from Smokey since 2008.

J. Murphy's prejudicial rulings against Appellant despite clear evidence

with statutory support in Appellant's favor, in this case and other unrelated

cases, individually and collectively rise to the level of malicious, willful

interference with Appellant's right to equal protection under the law and right

to due process, inter alia, which is actionable under 42 USC 1983 and 17

MRSA 2931.

Michaela Murphy has knowingly violated the Maine Constitution, Maine

Rules of Professional Conduct, Maine Rules of Judicial Conduct, Title 17 Maine

Revised Statutes 2931 and 42 USC 1983 when she intentionally used

abusive discretion and knowingly and arbitrarily dismissed Appellant's

Complaint knowing the subject property is a therapeutic device thereby

violating Appellant's human rights as protected by the Maine Human Rights

Act as well as the Americans with Disabilities Act, inter alia.

For the foregoing reasons, together with those reasons the law court

finds pertinent and persuasive, Appellant respectfully moves this court to

reverse superior court's determination that "The Humane Society, Waterville

Area is not subject to 1 MRSA 400 et seq."

Furthermore, Appellant moves this honorable court to order Appellee to

provide full and complete disclosure of all requested records forthwith and to

comply in strict compliance with statutory requirements pursuant to 1 MRSA

400 et seq. without protest for all future FOAA requests from all individuals.


Finally, Appellant respectfully moves this court to acknowledge these two

recorded facts which have egregiously injured and interfered with Appellant's

natural rights as protected by the Maine constitution:

1. HSWA and its counsel, Bryan B. Ward, Esq., BAR #004544, have

knowingly lied in legal proceedings provoking these questions:

a. Is HSWA's IRS 990 Form factually false?

b. Is HSWA's 12(b)(6) Motion to Dismiss factually false?

c. Is HSWA lying in other legal proceedings?

2. Michaela Murphy has evidently ignored clear evidence, statutory

guidelines and high court precedent willfully injuring Appellant's

right to due process and equal protection under law, inter alia.

Dated in Augusta Maine on this day.

April 13, 2014 In Peace,

GINA TURCOTTE 32 COURT ST APT 1 AUGUSTA, MAINE


CERTIFICATE OF SERVICE

I hereby certify that on April 13, 2014, I hereby certify that I have caused

all necessary copies to be delivered to the Court by United States Postal Service

Priority Mail.

DATED: April 13, 2014 __________________________________________

GINA TURCOTTE

MAINE SUPREME JUDICIAL COURT

SITTING AS THE LAW COURT

KEN-14-52

GINA TURCOTTE

APPELLANT

v.

HUMANE SOCIETY WATERVILLE AREA

APPELLEE

APPENDIX

Gina Turcotte

APPELLANT 32 Court St Apt 1

Augusta, Maine

APPENDIX

APPENDIX

Table of Contents

1. SUPERIOR COURT ORDER OF DISMISSAL

2. AUGSC-CV-2013-00226 DOCKET RECORD - DISMISSED WITH PREJUDICE

3. MEMORANDUM IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS

FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.

4. DEPT OF AGRICULTURE, ANIMAL CONTROL OFFICERS

5. IRS FORM 990 SCHEDULE A 2010

6. IRS FORM 990 OVERFLOW STATEMENT 2010

7. IRS FORM 990 SCHEDULE A 2011

8. IRS FORM 990 OVERFLOW STATEMENT 2011

9. HUMANE SOCIETY WATERVILLE INVOICE TO CITY OF WATERVILLE

10. HUMANE SOCIETY WATERVILLE ANIMAL HOUSING CONTRACT 2013

11. DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON

WHICH RELIEF CAN BE GRANTED.

12. COMPLAINT FOR INJUNCTIVE RELIEF, 1 MRSA 408-A

13. THREE PICTURES OF SMOKEY TAKEN BY APPELLANT (2009, 2010 and 2012)

14. HUMANE SOCIETY WATERVILLE FACEBOOK POSTING, JANUARY 4, 2013

C - . -;.,.- SUPERIOR COURT KENNEBEC, ss.

GINA TURCOTTE

v.

Plaintiff,

HUMANE SOCIETY, WATERVILLE AREA

Defendant.

) ) ) ) ) ) ) ) )

---------

DOCKET NO:

ORDER DISMISSING COMPLAINT

The Court, having considered the foregoing pleadings, motions and responses; and good cause appearing, hereby DISMISSES Plaintiffs Complaint dated 25 November 2013, with prejudice.

'}-L \A--__..J-~ ) lrJ "- k-.--v c fG 0 ~ f> \ J\ Vl__) '-( o;;, ~ ~t.

Dated: 1 \ ? o \ I ""\

- GIN'A TURCOTTE VS HUMANE SOCIETY WATERVILLE AREA UTN:AOCSsr -2013-0085520

01 / 20 2014

~M~----------------- ~ MURPHY

CASE IS DISMISSED WITH PREJUDICE

CASE # :AUGSC-CV-2013-00226

0.00

THE HUMANE SOCIETY WATERVILLE AREA IS NOT SUBJECT TO 1 M.R.S.A SECTION 400 ET. SEQ.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33

MEMORANDUM IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS Page 1 of 10

MEMORANDUM IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS

FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED WITH

SUPPORTING EXHIBITS AND INCORPORATED MEMORANDUM OF LAW

STATE OF MAINE

SUPERIOR COURT

KENNEBEC, ss

GINA TURCOTTE *

Claimant *

v *

HUMANE SOCIETY WATERVILLE AREA *

Respondent *

Claimant, GINA TURCOTTE, submits this Memorandum in Opposition to

Respondent's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be

Granted with Supporting Exhibits and Incorporated Memorandum of Law. As grounds

therefor, GINA TURCOTTE offers supporting exhibits and states as follows:

I. Introduction On August 20, 2013, Claimant sent a FOAA request to Respondent, seeking the

name, address and phone number of the adopting party ("John Doe"), in addition to all

intake records, photographs, and medical records for the following animal: (Cl.'s

Compl. 9)

INTAKE DATE: November 12, 2012

SURRENDERED BY: LINDA ANDREWS, 26 LOUISE AVE, APT 6, WATERVILLE



COLOR: Gold eyes, Grey/White med/long hair, white bib, paws, legs


PHOTO:

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33


Pursuant to 1 MRSA 408-A Respondent is in fact required to "acknowledge

receipt of a request made according to this section within 5 working days of receiving the

request" and "provide written notice of the denial, stating the reason for the denial,

within 5 working days of the receipt of the request".

Claimant has received no substantive response to her request from Respondent

and therefore filed this lawsuit on September 18, 2013.

Service of process to Director Kathleen Ross was completed in hand by Allen

Wood of the Kennebec County Sheriff's Office on December 2, 2013.

Proof of service and the original Summons were filed on December 11, 2013.

Respondent subsequently filed its motion to dismiss on December 13, 2013. II. Argument

A. Respondent Misstated or Excluded Pertinent Material Facts. 1. Respondent's counsel, Bryan B. Ward, Esq., BAR #004544, states on

page 4 in the motion to dismiss, "...HSWA - being a private corporation -

is not subject to the disclosure provisions of the Maine Freedom of Access

Act. It is not a public entity, does not participate in public proceedings,

and does not create or retain public records within the meaning of the

Freedom of Access Act."

2. Bryan B. Ward, Esq., misstated or excluded pertinent material facts:

a. HSWA currently has contracts with twenty three municipalities to

provide legislatively controlled government services to the public.

Exhibit A b. HSWA filed IRS Form 990 Public Charity Status and Public Support,

which indicated HSWA "is not a private foundation because it is...An

organization which receives a substantial part of its support from a

governmental unit or the general public described in section

170(b)(1)(A)(vi)". Exhibits B - G c. HSWA reported 70.19% "public support percentage for 2010" on Form

990, Schedule A, Part II, Support Schedule for Organizations

Described in Sections 170(b)(1)(A)(iv) and 170(b)(1)(A)(vi), Section C,

Computation of Public Support Percentage. Exhibits B, C, D d. HSWA reported 96.01% "public support percentage for 2011" on Form

990, Schedule A, Part II, Support Schedule for Organizations

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33


Described in Sections 170(b)(1)(A)(iv) and 170(b)(1)(A)(vi), Section C,

Computation of Public Support Percentage. Exhibit E, F, G e. HSWA has consistently reported "the organization qualifies as a

publicly supported organization." because it receives 33 1/3 % or

more of its support from a government unit or the general public.

MEMORANDUM OF LAW B. Standards Governing Rule 12(b)(6) Motion to Dismiss

The standard of review for a motion to dismiss for failure to state a claim

upon which relief can be granted is well settled. The motion must be decided

solely based on the allegations in the Claimant's complaint. See Fed.R.Civ.P.

12(d). The court does not decide disputed issues of fact; instead, it must assume

that all material facts in the Claimant's complaint are true. Tellabs, Inc. v. Makor

Issues & Rights, Ltd., 551 U.S. 308 (2007). Not only must the court accept the

Claimant's allegations as true, but it also must accept as true all reasonable

factual inferences drawn from Claimant's allegations. See Kowal v. MCI Comm'ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir 1994); Schuler v. United States, 617 F.2d

605, 608 (D.C. Cir. 1970). Thus, factual allegations in briefs or memoranda of

law generally may not be considered when deciding a Rule 12(b)(6) motion,

particularly when the facts they contain contradict those alleged in the

complaint. Henthorn v. Dept. of Navy, 29 F.3d 682, 688. (D.C. Cir. 1994).

C. Maine Revised Statutes Governing Animal Shelters 7 MRSA 3936(1) Inspection and Quarantine establishes mandatory control over Respondent's action, to wit, " The commissioner, a state humane

agent, a veterinarian employed by the State or a licensed veterinarian at the

direction of the commissioner may, at any reasonable time, enter an animal

shelter...and make examinations and conduct any recognized tests for the

existence of contagious or infectious diseases or conditions... The commissioner

may inspect animal shelters... in accordance with the sanitation and health rules

established by the department and for compliance with laws and rules, including

licensing and permitting requirements, of the Department of Inland Fisheries and

Wildlife pertaining to wildlife importation and possession. In conducting

inspections, measures established by the department through rulemaking must be

used to prevent the spread of infectious and contagious diseases. Rules adopted

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pursuant to this subsection are major substantive rules as defined in Title 5,

chapter 375, subchapter 2-A..." and "are subject to an increased level of rule-

making requirements." under 5 MRSA 8072. Legislative review of major

substantive rules.

7 MRSA 3936(2) Suspension of license. indicates "The department may, in accordance with Title 5, chapter 375, subchapter 5, revoke or suspend a[n]

animal shelter ... license if a person maintaining the ...animal shelter ... violates

any quarantine or maintains animals contrary to the rules adopted by the

department, fails to keep records required by the department or violates any

provision of the laws or rules of the Department of Inland Fisheries and Wildlife

pertaining to wildlife importation and possession."

The foundational merits of this litigation are based upon Respondent's gross

negligent failure to properly maintain statutorily required records of lost and stray

animals as reported by the lawful owner (Claimant), the surrendering party (Linda

Andrews), or the adopting party (John Doe) resulting in grossly erroneous record-

keeping behaviors effectively violating Claimant's right to due process, inter alia.

Respondent's behavior has caused Claimant to suffer severe economic and

noneconomic injury through loss of affection and therapeutic relationship, inter alia.

Claimant personally spoke with Liam Hughes, Director of Animal Welfare, Maine

Department of Agriculture, confirming Respondent is subject to control, governance

and legal inspection for accurate recording of stray and abandoned animals, inter alia.

Supreme Court of Connecticut decided a similar case on point, in Connecticut

Humane Society v. Freedom of Information Commission, 218 Conn. 757 (1991),

clarifying, "Because legislation designed to protect animals from cruelty and neglect is

recognized as a valid exercise of the police power; 4 Am. Jur. 2d, Animals 27;

arguably, the [humane] society also performs a governmental function insofar as it

engages in the statutorily authorized activities involving the detention, shelter and

euthanasia of animals."

Washington Court of Appeals decided, in Clarke v. TCAC & CONTROL SHELTER,

181 P. 3d 881 (2008), "To be considered an "agency, 'TCAC must qualify as an 'other

local public agency.' This term is not defined in the PDA. Telford, 95 Wash.App. at 158,

974 P.2d 886.

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In Telford, Division Two of this court was asked to determine if two

organizationsthe "Washington State Association of Counties" and the "Washington

State Association of County Officials"were public entities. Id. at 152-56, 974 P.2d 886.

The court in Telford adopted a four-factor "functional equivalent" balancing test to

determine if an entity is to be regarded as a public agency for purposes of the PDA: (1)

whether the entity performs a governmental function; (2) the level of government funding;

(3) the extent of government involvement or regulation; and (4) whether the entity was

created by the government. Id. at 162, 974 P.2d 886. Under Telford, each of these

criteria need not be equally satisfied, but rather the criteria on balance should suggest that the entity in question is the functional equivalent of a state or local agency. Id.

In Spokane Research, this Division saw no need to apply Telford's four-factor test

because there was "no ambiguity as to the Association's nongovernmental status," and

thus it was not subject to the PDA. Spokane Research, 133 Wash.App. at 608, 137 P.3d

120. But here, TCAC is not so obviously beyond the reach of the PDA.[4] Thus, we

engage in a Telford analysis to determine whether TCAC is an "other local agency"

subject to the PDA. Under Telford, we conclude that TCAC is the functional equivalent of a public agency.

Function. TCAC's purpose is to perform animal control services for the tri-cities area...It recognizes the authority of cities and counties to pass local ordinances regulating the care and control of animals... In turn, the statute acknowledges that cities and counties may contract with animal care and control agencies to perform these duties... An entity becomes an animal care and control agency when it is "authorized to enforce city or county municipal ordinances regulating the care, control, licensing, or treatment of animals within the city or county," or when it contracts with the city or county as a humane society to provide those services... In any event, an animal care and control agency "may enforce the provisions of [chapter 16.52 RCW] only if the county or city legislative authority has entered into a contract with the agency to enforce [those provisions]." Former RCW 16.52.015(1) (emphasis added).

TCAC is authorized by the local government to provide animal control services.

Under former RCW 16.52.011(2)(b), it is therefore an animal care and control agency.

Individuals associated with TCAC take oaths as animal control officers; animal control

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officers can only be employed by an animal care and control agency. See former RCW

16.52.011(2)(c). As part of the oath, the employees of TCAC agree to enforce the area's

animal control regulations. As regulators, TCAC and its officers execute police powers in carrying out their duties, most notably impounding and destroying private citizens' pets. These types of acts implicate due process concerns. See, e.g., former RCW 16.52.085 (discussing situations in which an animal control officer

does or does not need a warrant to remove an animal from private property). The implication of police powers is clear from the language of former RCW 16.52.015(2), which requires animal control officers to comply with "the same constitutional and statutory restrictions concerning the execution of police powers imposed on law enforcement officers who enforce this chapter." Because a local government grants TCAC the ability to execute police powers pursuant to state statute, TCAC is performing a governmental function. Cf. Champagne v. Spokane Humane Soc'y, 47 Wn. App. 887, 891, 737 P.2d 1279, review denied, 108

Wn.2d 1035 (1987) (humane society acting as a public entity for the purpose of the

public duty doctrine when City of Spokane contracted with it and delegated it the

authority to enforce the animal regulations); Brunette v. Humane Soc'y, 294 F.3d 1205,

1208 (9th Cir. 2002) (noting that a humane society created by statute and holding police

powers was a state actor for the purposes of 42 U.S.C. 1983 litigation), cert. denied,

537 U.S. 1112 (2003).

But while TCAC is performing a governmental function, Telford's analysis seems to

hinge on whether the entity's duties can be delegated to the private sector. Telford, 95

Wn. App. at 165. Although the function here was assigned to the private sector, such delegation may only occur via a contractual relationship between the city and the animal control agency. Former RCW 16.52.015(1). Hence, the nature of the delegation merely allows TCAC to step into the shoes of the local government.[6] In short, while the local government can delegate the performance authority for this public function to a private entity, it cannot delegate away its statutory responsibility to perform within PDA legal requirements. TCAC's performance depends on its contract with the cities involved. Former RCW 16.52.015(1). Thus, TCAC is performing a governmental function that can never be wholly delegated to the private sector. Said another way, were we to conclude that TCAC is not a functional equivalent of a public

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agency, we would be setting a precedent that would allow governmental agencies to contravene the intent of the PDA and the Public Records Act by contracting with private entities to perform core government functions. All told, this factor balances in favor of finding that TCAC is the functional equivalent of a public agency.

Government Funding. Nearly all of TCAC's operating budget comes from public money. TCAC occupies space in a building rent-free, subsidized by the local government with which it contracts, and it is forbidden by the terms of that contract from

engaging in any business on that premises other than its animal control services. Thus,

this factor clearly weighs in favor of application of the PDA.

Government Control. TCAC is in control of its day-to-day operations, and

maintains its own insurance. Its employees are not considered public employees and

receive no benefits from the local government. However, as noted above, there are some

government restrictions on how the government facilities can be used. In addition, TCAC is only permitted to provide euthanasia services in a manner approved by ACA. TCAC is also required to keep records and submit monthly reports to ACA. Thus, there is a notable degree of governmental control here and this factor weighs in favor of finding that TCAC is the functional equivalent of a public agency.

Origin. TCAC was formed as a private corporation, by private citizens, and is not an entity created by the government. Although it could not perform its function without its relationship to the local government, this factor weighs against PDA application.

Balancing. Construing the PDA liberally in favor of the fullest possible public records access, we balance these aforementioned factors. On balance, we conclude TCAC is the functional equivalent of a public agency. While TCAC has some non-public functions and characteristics, the fact that it performs a governmental function dependent upon its relationship with the local government, receives the bulk of its funding from taxpayer money to perform that function, and is subject to regular government oversight, all tip the scale in favor of finding that TCAC is the functional equivalent of a public agency.

HSWA signed a contract with Town/City of Waterville, signed by the Municipal

Town Officer and HSWA's Executive Director, stating, in part, "THIS AGREEMENT,

entered into on July 1,2013 by and between the Town/City (hereafter called town) of

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Waterville, Maine and the Humane Society-Waterville Area (hereafter called Shelter) is in

effect from July 1, 2013 through June 30,2014.

By statue, ALL towns are either required to maintain an animal shelter or

otherwise provide such services with regard to stray domestic animals.

The SHELTER is hereby employed and authorized to act as an animal shelter and

is equipped to provide such services in compliance with statutory requirements. The

SHELTER will provide food, water, shelter, medical care, and/or any other humane

treatment for such domestic animals while they are in possession of the SHELTER.

By statute, Title 7 MRSA, Section 3947,every town shall appoint one or more

Animal Control Officer(s) (hereafter called ACO). The ACO from the City of Waterville shall

transport stray and abandoned domestic animals (which shall include cats and ferrets)

to the SHELTER. Transportation must be carried out in a humane manner, Title 7 MRSA,

Section 3981. et. reg.

The ACO will ensure that sick or injured animals at large receive proper medical

attend and transport said animals directly to a licensed veterinarian. Veterinary costs

incurred for stray animals are the responsibility of the Town from which the animal is

transported unless the owner is found." Exhibits H, I D. Respondent Has Failed To Demonstrate That This Case Should Be

Dismissed. Respondent's motion is based entirely on their misstatement or exclusion of vital

material facts claiming HSWA is not "a public entity, does not participate in public

proceedings, and does not create or retain public records", which is wholly untrue and

intended to mislead this court.

As wholly rebutted above and evidenced herein, HSWA does in fact qualify as a

public entity having written contracts calculated per capita with twenty three Maine

municipalities, receiving more than 95% of their financial support from general public,

being vastly governed by legislative control, for the purpose of providing vital public

services which are paid by the Town/City.

Respondent HSWA "is the functional equivalent of a public agency". Therefore, because Respondent has not otherwise shown that Claimant's

complaint fails to state a claim upon which relief can be granted, Respondent's motion

must be denied and declaratory judgment under Rule 57 be entered for Claimant as a

matter of law.

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III. Conclusion For all the reasons indicated above, this court must deny Respondent's motion

to dismiss, enter declaratory judgment that Respondent is a public agency subject to

the FOAA and order immediate disclosure of the name, address and phone number of

the adopting party ("John Doe"), in addition to all intake records, photographs, and

medical records for the following animal: INTAKE DATE: November 12, 2012

SURRENDERED BY: LINDA ANDREWS, 26 LOUISE AVE, APT 6, WATERVILLE



COLOR: Gold eyes, Grey/White med/long hair, white bib, paws, legs


PHOTO:

WHEREFORE, Claimant moves this court to deny Respondent's Motion to

Dismiss For Failure to State A Claim Upon Which Relief Can Be Granted, enter a

declaratory judgment as a matter of law in Claimant's favor that Respondent is a

public agency and is subject to the FOAA, order instant disclosure of the public

records which are the subject of this action, and to order all other appropriate relief

and actual costs to bring suit.

DATED: December 30, 2013 ___________________________________________

GINA TURCOTTE

41 LAMBERT AVENUE

AUGUSTA, MAINE

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CERTIFICATE OF SERVICE

I, GINA TURCOTTE, hereby certify that on December 30, 2013 the foregoing

document was served on Respondent via first-class mail, postage prepaid.

DATED: December 30, 2013 ___________________________________________

GINA TURCOTTE

41 LAMBERT AVENUE

AUGUSTA, MAINE

Animal Welfare: Maine ACF

12/27/2013 10:30:13 PMhttp://www.maine.gov/dacf/ahw/animal_welfare/animal_control_officers.shtml

Department of Agriculture, Conservation and Forestry

DACF Home Bureaus & Programs Division of Animal and Plant Health Animal Welfare Animal Control Officers

Animal Welfare

Animal Control OfficersShow 100 entriesSearch: Waterville Humane Society

City or TownACO /

AlternateACO

ContractedAnimal Shelter

Phone (during business hours) /(after hours)

Town OfficePhone Tag Numbers

Albion HerbertGordon /WatervilleHumane Society (207) 649-4712 / 207-437-2900

Belgrade Kathleen Ross /WatervilleHumane Society (207) 441-7121 / (207) 495-2258

Benton Dave Huff / WatervilleHumane Society (207) 487-1632 / (207) 487-1632 (207) 453-7191

Brooks JaneMcLaughlin /WatervilleHumane Society (207) 322-9764 / (207) 322-9764 (207) 722-3254

Burnham JohnBerryman /WatervilleHumane Society (207) 716-6681 / (207) 716-6681 (207) 948-2369

Canaan Lisa Eldridge / WatervilleHumane Society (207) 612-9188 / (207) 612-9188 (207) 474-8682

Clinton Dave Huff / WatervilleHumane Society 207-426-9192 / 207-426-9192 (207) 426-8511

Detroit Karen Baker / WatervilleHumane Society (207) 474-6386 / (207) 474-6386 (207) 257-4488

Fairfield Dave Huff / WatervilleHumane Society (207) 487-1632 / (207) 453-7911

Freedom Scott Holmes / WatervilleHumane Society (207) 382-6245 / (207) 382-6245 (207) 382-6177

Jackson CynthiaLudden /WatervilleHumane Society

(207) 722-3205 or (207) 322-9469 /(207) 722-3205 or (207) 322-9469 (207) 722-3439

Knox Scott Holmes / WatervilleHumane Society (207) 382-6245 / (207) 314-7438 (207) 568-3907

Mercer Kathleen Ross /WatervilleHumane Society 207 441-7121 / 207 441-7121 207 587-2911

Monroe Alden Brown /Daine BrownWatervilleHumane Society 207-722-3759 / (207) 525-3515

109501-1098002010

Rome Kathy Ross / WatervilleHumane Society 207-441-7121 / (207) 397-4011

Swanville Diane Brown / WatervilleHumane Society 722-3759 / 171451-171650 2010

Thorndike MichelleHaskell /WatervilleHumane Society 207-437-4224 / 207-568-3655 173901-174150 2011

Troy MichelleHaskell /WatervilleHumane Society 207-437-4224 / 207-437-4224 (207) 948-2283

gina turcotte v humane society waterville area - appellant's appeal brief

Documents

appellant contacted

missing animal report

superior court

appellee access

possession of smokey

photographs of smokey

service animal cat

connecticut humane society