Saturday, October 10, 2009
Dog Execution Bagged by Judge for 2d Time
The Clerk Magistrate previously reversed the order of the BOS which ordered Kane the pitbull (who was in an altercation with a horse), to be executed. After Kane escaped the BOS order at the clerk magistrate level, the BOS decided to expend further time and money to appeal that order to a Judge of the District Court.
On October 9, from 9-1PM a hearing was held before a Judge, where the Town had the burden of proof and they put up three witnesses (the ACO, the only precipient witness to the event, and the horse owner). I was entitled to cross-examine the witnesses on the Town's case. On the Town's case, it was established without dispute that:
1. The Defendant was not given a copy of the complaint, a copy of the relevant law, the BOS has no written rules and procedures for hearings, has no written standards for making determinations in dog hearings, they did not give the Defendant copies of the report and reccommendation of the ACO, they did not give him witness statements against him, they did not give him any notice of the consequences of the hearing, and they provided him with very short notice of the hearing.
2. The Judge also bristled at the fact that the only precipient witness for the Town was not at the hearing, and simply submitted a written statement that could not even be cross examined. Additionally, it did not seem to sit well with the Judge that even that statement did not get heard until AFTER the BOS had acted on Mimi's motionand ordered the dog killed.
When the Town rested its case, I moved for what is the equivalent of a directed verdict in a jury trial. I argued that due process was violated, that proper notice was not given, and that the Defendant was denied the right to a fair hearing and the ability to prepare a defense. Town Counsel argued, essentially, that the Constitutional standards that I was relying upon did not apply to this statute. My reply was that every law and statute are imbued with Constitutional requirements, and if you fail in your Constitutional obligations, any action taken under the statute is fatally flawed. The Judge granted my motion and the de novo hearing ended with a victory for Kane the dog. This means that the BOS absolutely violated the Constitutional rights of Eric Bagge and each citizen treated in the same way--shame om Pat, Mimi and Al--the other two voted against the holding but still did not see the problem.
What does this all mean? Well, Mimi Duphily was there and Steve McKinnon was there. Maybe this means that the BOS will finally adopt some rules and procedures that serve to protect the rights of the citizens of Middleboro. I know that Steve has tried--twice-- to get the BOS adopt rules and procedures--which DIED FOR LACK OF A SECOND!!!!!
Maybe now Mimi Duphily --who I absolutely regret having supported--will be that second since she saw the problems that the Judge had with the BOS lack of procedures. Remember BOS, you are the protectors of the community--not the prosecutors. Think about the constitutional rights that you are REQUIRED to protect, and not your own power trip. A response like "I hate god damn lawyers" solves nothing and makes you small.
If things stay the same, then the BOS will arrogantly try to find a way to further appeal this non-appealable ruling (at the taxpayer cost). If things are to change, perhaps the BOS could remove the fog of absolutism from their tinted glasses, and realize that the changes to be made to correct this grevious error is cheap, simple, and gives long lasting returns to the entire citizenry of Middleborough.
We should all wait to see which way they choose to go. It will tell us a lot about who they represent.
Posted by AMB at 9:10 AM