Kiyak v. Department of Agriculture

210 Conn.App. 311

269 A.3d 860

Michael KIYAK

v.DEPARTMENT OF AGRICULTURE et al.

AC 43314

Appellate Court of Connecticut.

Argued September 22, 2021

Officially released January 25, 2022

Thompson G. Page, Hartford, for the appellant (plaintiff).

Gail S. Shane, assistant attorney general, with whom, on the brief was William Tong, attorney general, for the appellee (named defendant).

Catherine L. Creager, Fairfield, for the appellee (defendant town of Fairfield).

Cradle, Alexander and Harper, Js.

ALEXANDER, J.

The plaintiff, Michael Kiyak, appeals from the judgment of the Superior Court dismissing his administrative appeal from the final decision of the defendant Department of Agriculture (department) to uphold two disposal orders issued by an animal control officer for the defendant town of Fairfield (town)¹ to euthanize the plaintiff's German shepherd dog pursuant to General Statutes § 22-358. On appeal, the plaintiff claims that the court erred in dismissing his appeal because (1) § 22-358 (c) is unconstitutionally vague as applied in that the word "necessary," concerning the issuance of a disposal order, authorizes arbitrary enforcement of the statute, (2) the department's hearing officer violated the plaintiff's right to procedural due process by using inadequate procedures in upholding the disposal orders, and (3) the hearing officer erred in designating Animal Control Officer Paul Miller as an expert. We affirm the judgment of the Superior Court dismissing the plaintiff's appeal.

The department found the following facts that are relevant to this appeal. "The plaintiff is the owner of a German shepherd dog named Jack. At the time of the hearing, the [plaintiff] was eighty-three years old and resided with his eighty-one year old wife, Nancy Kiyak, at 61 Lind Street in Fairfield .... Nancy Kiyak has Alzheimer's disease, and the plaintiff is her caregiver.

"The plaintiff obtained Jack in 2014 or 2015. Jack had previously been living in Florida and was named ‘Semper’ while living there.

"On May 3, 2016, Lucy Meehan was jogging on Lind Street, a public road, when Jack attacked and bit her on her right leg, her arm, and her chest. ... The bite wounds required medical attention.

"Meehan's testimony was corroborated by the plaintiff, who testified that, when Jack attacked Meehan, the plaintiff ran over to shield her from Jack because he ‘didn't know if [Jack] was going to attack again.’ At the time of this incident, Jack was a 100 pound dog. Meehan did not provoke Jack. ...

"On May 27, 2016, the town issued a restraint order on Jack and provided the plaintiff with the opportunity to take Jack out of state. After the restraint order was issued, some area residents expressed concern about their safety, and Fairfield Animal Control reopened the investigation to determine whether there were prior incidents involving Jack.

"One such incident had occurred in about December, 2015, when Jack bit the plaintiff's wife, Nancy Kiyak, in their home. At the hearing, the plaintiff confirmed that incident, testifying that he had told his wife that the dog was in the garage and that she should not go into the garage. Because of her Alzheimer's disease and lack of memory, Nancy Kiyak went into the garage, where Jack attacked and bit her. The plaintiff took his wife to a walk-in clinic for treatment of the bite wound, but he did not report the bite incident to an animal control officer.

"The animal control officer, Miller, traced Jack's origins through his rabies tags to Florida and learned that Jack ... was involved in a biting incident in Florida. The plaintiff confirmed the dog's origin in Florida and his name in Florida. According to a town exhibit, while in Florida, Jack bit an eleven year old boy on his arm while the boy was walking home from school, and the wound required stitches.

"Based on his continuing investigation, on July 15, 2016, Miller issued a disposal order on the dog ... citing three biting incidents: the bite incident involving Meehan, the bite incident involving Nancy Kiyak, and the bite incident in Florida. The plaintiff, who has been unable to relocate Jack out of state, voluntarily took Jack to the animal control facility on the same date to address the impending disposal order. The plaintiff appealed the disposal order to the department.

"Jack was held at the Fairfield Animal Control facility while the plaintiff's appeal of the disposal order was pending. The plaintiff was allowed to come in and feed Jack. The plaintiff asked Miller not to allow anybody near the dog .... On or about December 12, 2016, the plaintiff was visiting Jack. The plaintiff did not have Jack on a leash but was holding his choke collar while preparing to take him out into an enclosed run for exercise. Jack broke loose from the plaintiff and attacked Emily Quintiliano, a kennel worker at the facility. Quintiliano, who has interacted with hundreds of animals, testified that she did not provoke the attack and that she had believed Jack was under the plaintiff's control. She testified that Jack approached her quickly, barking and continuously growling, and backed her down an aisle and against a wall before biting her. ... The bite caused scarring.

"On December 24, 2016, Miller issued a second disposal order on Jack. This order cited the biting incident involving Quintiliano ... in addition to the three previous bite incidents involving Jack. The plaintiff appealed the second disposal order.

"Miller has been an animal control officer for twenty-nine years and has come in contact with thousands of animals. He testified that he has not been involved in many biting incidents where disposal orders have been issued, and he does not issue them lightly. In this case, he assessed the seriousness of the bites, the number of bites, and past history. He testified that Jack is ‘mean and aggressive’ and ‘one of the most dangerous dogs’ he has ever seen. ...

"Miller testified that Jack should stay in the custody of animal control for the pendency of this case and that it would be dangerous to release him. He testified that the plaintiff has difficulty controlling Jack and that ‘Jack is a clear and present risk and threat to public safety.’ ...

"The town introduced a written statement by veterinarian John T. Kristy, who stated that Jack was ‘too dangerous to handle for a reasonable physical examination.’ In examining Jack, Kristy feared for his own safety. He stated that Jack is ‘large, strong and aggressive, and should be handled with extreme caution due to the potential for extreme physical injury.’ "The plaintiff testified, to the contrary, that Jack ‘is not very dangerous.’

"The hearing officer found all four witnesses to be honest and credible, but, in light of the evidence in the record, he disagreed with the plaintiff's opinion that Jack ‘is not very dangerous.’ He found Miller's testimony and his assessment of Jack's temperament to be credible and reliable. He found that Miller has expertise in the assessment of aggressive or dangerous dogs, given his twenty-nine years as an animal control officer, training received in the course of his employment, and training with the National Animal Control Officers. The hearing officer also found Quintiliano's testimony to be credible and reliable in light of her considerable experience in handling dogs during her ten years as a kennel keeper.

"During the hearing, the plaintiff's counsel argued that ‘public safety’ was not an adequate justification for issuing a disposal order or for holding Jack during the pendency of the appeal. The hearing officer rejected those arguments, noting that § 22-358 authorizes the killing of dogs under several circumstances ... and allows for the issuance of restraint or disposal orders as to dogs that bite. The hearing officer found that the evidence in the record established that the plaintiff is unable to control Jack because Jack bit Nancy Kiyak, Meehan, and Quintiliano in the plaintiff's presence, and Jack actually broke free of the plaintiff in two of those incidents.

"The plaintiff's counsel indicated during the proceedings that he had filed suit in [the United States District Court for the District of Connecticut] on behalf of the Kiyaks. His arguments concerned alleged procedural and constitutional violations. At no time did he argue or offer evidence that Jack was not the dog that bit Nancy Kiyak, Meehan, or Quintiliano, that Jack was not aggressive or dangerous, that the bites were not serious, or that Nancy Kiyak or other residents would not be in danger if Jack was returned home. The plaintiff did not present an alternative to a disposal order that could have been considered.

"The hearing officer concluded that the town had proved, by a preponderance of the evidence, that Jack is a dog of dangerous propensity and that the statutory elements for issuance of a disposal order had been satisfied. After review of the proposed decision, and after hearing argument both from the plaintiff's counsel and from the plaintiff himself, the [C]ommissioner [of Agriculture (commissioner)] adopted the proposed decision as the final decision of the department." (Internal quotation marks omitted.)

Thereafter, the plaintiff appealed to the Superior Court and claimed that (1) § 22-358 (c) is unconstitutionally vague and that its enforcement violated his constitutional rights, (2) the hearing officer admitted irrelevant and prejudicial information concerning the dog and improper expert testimony by Miller, (3) the town's retention of the dog was an illegal taking without due process, (4) the town's decision to continue to hold the dog because of Nancy Kiyak's medical condition violated the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (2018), and the fourth, fifth and fourteenth amendments to the United States constitution, and (5) the town's continued retention of the dog constitutes a forfeiture and is criminal in nature, invoking constitutional protections that were denied to the...