State v. FIFTEEN IMPOUNDED CATS

#25408-a-DG

2010 SD 50

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA. Plaintiff and Appellee,

v.

FIFTEEN IMPOUNDED CATS, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA

* * * *

HONORABLE LORI S. WILBUR
Judge

* * * *

KELLY MARNETTE
Hughes County State’s Attorney

WENDY KLOEPPNER
Hughes County Deputy
State’s Attorney Attorneys for plaintiff
Pierre, South Dakota and appellee.

PATRICIA EDWARDS
Pierre, South Dakota Pro se.

* * * *

CONSIDERED ON BRIEFS
ON MARCH 22, 2010

OPINION FILED 06/23/10
#25408
Gilbertson, Chief Justice

[¶1.] Patricia Edwards appeals circuit court orders ratifying the

impoundment of a large number of cats she was transporting in her automobile and

for disposition of the cats. We affirm.

FACTS

[¶2.] At approximately 11:15 p.m. on August 13, 2009, a police officer for the

City of Pierre, South Dakota was dispatched to a local convenience store to respond

to a complaint about a car parked in the parking lot occupied by a woman and a

large number of cats. The officer proceeded to the parking lot and pulled up behind

the car as its driver began to back out of the vehicle’s parking space, nearly backing

into the patrol car. At that point, the officer observed that the view out of the back

window of the other car was obstructed by numerous cats climbing on the seat

backs and rear dashboard inside the vehicle. The officer approached the driver of

the other vehicle and identified her as Edwards.

[¶3.] Edwards provided the officer with some information about having

traveled from Texas, into South Dakota, through Pierre, and to Huron. Edwards

further indicated that she was traveling back through Pierre on her way to Billings,

Montana, and eventually back to Texas. Edwards stated that she had fifteen cats,

that she had been living out of her car for several days and that she did not have

any money.

[¶4.] In addition to the cats, the officer could see that Edwards’s vehicle was

crammed full of personal belongings and clutter stacked on both the front passenger
#25408

seat and all across the rear passenger area.1 The clutter allowed the cats to roam

freely through the vehicle at a level or height that interfered with the driver’s

visibility and limited her ability to safely operate and control the vehicle.

[¶5.] The officer’s further inspection of Edwards’s car revealed that it did

not contain any kennels or carriers suitable for safely transporting the cats, that

there was only one litter box in the vehicle, and that the litter box needed to be

cleaned out. There was also a strong pet odor emanating from the vehicle.

Although Edwards indicated that the cats were all spayed and neutered, she further

stated that the cats had destroyed those treatment records.

[¶6.] Based upon his observations of Edwards’s vehicle, his safety concerns

and his concerns for the welfare of the animals, the officer impounded Edwards’s

cats and placed them in a local kennel under the care of a veterinarian. In carrying

out the impoundment, the officer was assisted and advised by a board member with

the local humane society.

[¶7.] A hearing to ratify the officer’s impoundment of the cats was held on

August 19, 2009. At the close of the hearing, the court expressed concern with the

visibility and safety issues related to Edwards’s transportation of her cats and

particular concern with Edwards’s ability to drive while fifteen small animals were

roaming loose in her vehicle. On that basis, the court found exigent circumstances

sufficient to ratify the impoundment of the cats. The court recommended that

1. Pictures of the interior of the vehicle contained in the settled record reflect
that it was crammed full of boxes, coolers, blankets, clothes, two liter bottles
full of water, books, cooking utensils, a large bag of cat food and a large and
dirty litter box. The vehicle appears to have been filthy.

-2-
#25408

Edwards obtain legal counsel and work with counsel and the state’s attorney on a

plan to get her cats back and to safely transport them. The state’s attorney also

advised Edwards as to her financial responsibility for the costs of caring for her cats

while under impoundment.

[¶8.] The State subsequently filed a motion for disposition of the impounded

cats and a further hearing on the matter was held on August 24, 2009. During the

hearing, the State requested that the cats be transferred to the local humane

society for adoption into new homes. Although Edwards requested that she be

allowed to take her cats and leave, she presented no plan to pay for the costs of

their care, to care for them herself or to safely transport them. At the close of the

hearing, the court entered its order transferring ownership of the cats to the local

humane society for adoption and terminating Edwards’s rights over them. Edwards

appeals.

ISSUE ONE

[¶9.] Whether Edwards’s constitutional rights were violated in the
impoundment of her cats.

[¶10.] Edwards claims various violations of her state and federal

constitutional rights in the impoundment of her cats. However, she concedes that

she did not preserve her constitutional claims before the circuit court. Even issues

over the denial of constitutional rights may be deemed waived by failure to take

action to preserve the issues for appeal. See e.g. Schlenker v. South Dakota Dept. of

Public Safety, 318 NW2d 351, 353 (SD 1982).

[¶11.] Edwards seeks application of the plain error doctrine to permit review

of her constitutional claims.

-3-
#25408

Where an issue has not been preserved by objection at
trial, our review is limited to whether the trial court
committed plain error. “Plain errors or defects affecting
substantial rights may be noticed although they were not
brought to the attention of a court.”

“We invoke our discretion under the plain error rule
cautiously and only in ‘exceptional circumstances.’”
“Plain error requires (1) error, (2) that is plain, (3)
affecting substantial rights; and only then may we
exercise our discretion to notice the error if (4) it
‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” When plain error is
alleged, the defendant bears the burden of showing the
error was prejudicial.

State v. Bowker, 2008 SD 61, ¶ 45, 754 NW2d 56, 69-70 (citations omitted). Plain

error has been held applicable in “rare instances” in civil cases where a “ludicrous

result” “may well invite ridicule of the entire judicial system . . ..” See First Premier

Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶¶ 18 & 19, 686 NW2d 430, 442

(superseded on other grounds in In re Estate of Duebendorfer, 2006 SD 79, 721

NW2d 438). There is no plain error here.

[¶12.] Edwards argues that the statutes utilized by the State to impound her

cats presume the necessity of a warrant or court order before seizing the animals

unless an extreme or emergency situation exists. She contends no such emergency

situation was present in this case because her cats were being humanely treated

and were in no apparent distress.

[¶13.] The State proceeded under SDCL 40-1-5:

Any peace officer, agent of the board, or agent or officer of
any humane society finding an animal inhumanely
treated, as defined in § 40-1-2.4, shall, pursuant to a
warrant or court order, cause the animal to be impounded
or otherwise properly cared for, and the expenses of such
impoundment or care shall be a lien on the animal to be
paid before the animal may be lawfully recovered.

-4-
#25408

However, a warrant or court order is not necessary if the
animal is severely injured, severely diseased, or suffering
and any delay in impounding the animal would continue
to cause the animal extreme suffering or if other exigent
circumstances exist. If any animal is impounded or
subjected to other action under this section without a
warrant or court order, the officer or agent shall
subsequently show cause for the impoundment or other
action to the court, and the court shall issue an order
ratifying the impoundment or action; or, if sufficient
cause for the impoundment or action is not shown, the
court shall order the return of the animal to the owner or
other appropriate remedy.

(Emphasis added).

[¶14.] “Statutes are to be accorded their plain meaning and effect.” Premier

Bank, N.A. v. Mahoney, 520 NW2d 894, 896 (SD 1994) (citing State v. Ohlmann,

444 NW2d 377, 378 (SD 1989)). The plain language of SDCL 40-1-5 emphasized

above allows the warrantless impoundment of an animal under four circumstances:

(1) the animal is “severely injured,”

(2) the animal is “severely diseased,”

(3) the animal is “suffering and any delay in
impounding the animal would continue to cause the
animal extreme suffering or . . . ”

(4) “other exigent circumstances exist.”

SDCL 40-1-5 (emphasis added). Notably, these four circumstances are separated in

the statute by the disjunctive word “or.” See State v. Lafferty, 2006 SD 50, ¶ 7, 716

NW2d 782, 785 (referring to the word “or” as a disjunctive word). Thus, the

existence of any one or more of these four circumstances allows the warrantless

impoundment of an animal. See State v. Krebs, 2006 SD 43, ¶ 12, 714 NW2d 91, 96

(holding that because the applicable statute in the case listed its factors in the

-5-
#25408

disjunctive, “any one or more” of the factors sufficed to support the trial court’s

findings under the statute).

[¶15.] The fourth circumstance allowing warrantless impoundment is the

existence of “other exigent circumstances.” SDCL 40-1-5.

“Exigent circumstances exist when ‘a situation demand[s]
immediate attention with no time to obtain a warrant.’”
State v. Dillon, 2007 SD 77, ¶ 18, 738 NW2d 57, 60
(quoting [State v. Hess, 2004 SD 60, ¶ 24, 680 NW2d 314,
325]); [State v. Meyer, 1998 SD 122, ¶ 23, 587 NW2d 719,
724] (citing State v. Heumiller, 317 NW2d 126, 129 (SD
1982)). The need to protect or preserve life or avoid
serious injury presents that kind of situation. Dillon,
2007 SD 77, ¶ 20, 738 NW2d at 61 (citations omitted).

Bowker, 2008 SD 61, ¶ 19, 754 NW2d at 63. This Court has referred to similar

principles in the context of exigent circumstances in animal control disputes. See

City of Pierre v. Blackwell, 2001 SD 127, ¶ 16 n 2, 635 NW2d 581, 586 (stating that

“[w]e recognize that there may be times when an emergency exists, or when

immediate action is necessary to protect the health, welfare and safety of the

citizens.”). 2

[¶16.] Statutory interpretation also requires that we view SDCL ch 40-1 in

conjunction with other statutes concerning a similar subject. City of Marion v.

Schoenwald, 2001 SD 95, ¶ 8, 631 NW2d 213, 217. The impoundment occurred

2. The 2006 amendment of SDCL 40-1-5 appears to be a statutory adoption of
the “exigent circumstances” language from this Court’s 2001 opinion in
Blackwell. See 2006 SDSessL ch 211, § 8. It would also have the effect of
broadening the scope of the ability of a governmental entity to act outside of
municipalities where such authority had been previously recognized for
decades. Since SDCL 9-29-1, 9-29-12 and 9-29-13 were not amended in 2006,
one cannot ascertain any legislative intent to constrict the previous statutory
authority granted to municipalities to regulate in this area.

-6-
#25408

within a municipality thus implicating the general statutory authority of a

municipality to regulate domestic animals like cats. “South Dakota law permits

municipalities broad power to regulate the keeping of” such animals. Id. ¶ 1, 631

NW2d at 215. 3 Moreover, in animal regulation, “[o]ur Court has a history of not

interfering with municipal governments unless their actions are palpably arbitrary,

unreasonable, or beyond their authority.” Id. ¶ 7, 631 NW2d at 216. The reason is

that we presume that municipalities are familiar with their local conditions and

know their own needs. Id. ¶ 8, 631 NW2d at 217.

[¶17.] As noted above, while municipalities possess general statutory

authority to regulate the keeping of domestic animals, they also possess a broader

power to regulate in this area from the authority “to maintain the health, safety

and general welfare of the community and the right to abate nuisances.” Id. ¶ 9,

631 NW2d at 217 (citing SDCL 9-29-1 and SDCL 9-29-13). “Public welfare includes

maintaining a certain quality of life in a community. Unsanitary conditions . . .

[and] obnoxious animal behavior of various sorts . . . can seriously disturb the peace

and constitute a nuisance.” Id. ¶ 13, 631 NW2d at 218.

Beyond these express grants of authority [under SDCL 9-
29-1, 9-29-12 and 9-29-13], cities are allowed to exercise
those powers implied from, or incidental to, the

3. The power to regulate domestic animals by a municipality dates back to the
Dakota Territory. “In 1887, when the legislature provided for the
incorporation of cities, it empowered the city council ‘[t]o regulate, restrain,
and prohibit the running at large of horses, cattle, swine, sheep, goats, geese,
and dogs . . ..’” Rapid City v. Tuning, 82 SD 442, 445, 147 NW2d 604, 606
(1967). “In almost all jurisdictions, municipal power to regulate animals kept
as pets is broadly construed.” City of Marion, 2001 SD 95, ¶ 10, 631 NW2d at
217 (citing 7 McQuillin, Municipal Corporations, § 24.284 at 203 (3rd ed
1998)).

-7-
#25408

effectuation of their express authority. Thus,
municipalities may freely exercise police power to
regulate pet ownership so long as the ordinance is
reasonable and the means employed are necessary to
accomplish a legitimate governmental interest.

Blackwell, 2001 SD 127, ¶ 10, 635 NW2d at 584-85 (citations omitted).

[¶18.] Here, the circuit court found exigent circumstances justifying the

impoundment of Edwards’s cats in the health and safety hazards created by

Edwards’s traveling on a public roadway and through a crowded parking lot with

fifteen small animals wandering around loose in her jam-packed vehicle to distract

her and interfere with her ability to see where she was going. Beyond the

unsanitary aspects of the situation, it presented a significant safety risk to the

public. This incident occurred at a busy convenience store in Pierre on an August

night. Because of the cats in the back window, Edwards failed to see the patrol car

behind her and nearly backed into it. What if, instead of the officer’s patrol car, a

less visible child on a skateboard or bicycle had passed by at that same moment? If

the safety of an endangered cat can constitute “exigent circumstances” even more so

must a direct threat to the safety of the public in the area. In regard to injuries to

children, “[w]e have seen the tragic consequences of unregulated or mismanaged

pets.” City of Marion, 2001 SD 95, ¶ 13, 631 NW2d at 218 (citing Tipton v. Town of

Tabor, 1997 SD 96, 567 NW2d 351). 4

4. The safety concern was crucial to the circuit court’s upholding of the
impoundment as stated in its decision, “I’m not talking about dirt or
cleanliness at this point. I’m talking about visibility, safety, and how it is
that a person can drive with 15 animals wandering around in the vehicle. . . .
I’m going to ratify the impoundment.”

-8-
#25408

[¶19.] The dissent is not persuaded that exigent circumstances existed in

part because the officer did not issue Edwards a criminal citation in addition to

impounding the cats. However, at that point the officer already knew that Edwards

was indigent and simply exercised his discretion to abate the safety and sanitary

risks to all who came near the car as well as to protect the cats in the car. In the

context of controlling animals within a municipality, we have held, “[l]aw

enforcement entails more than simply reacting to violations; it encompasses the art of

keeping the peace.” E.P. v. Riley, 1999 SD 163, ¶ 19, 604 NW2d 7, 13 (emphasis

original) (quoting Tipton, 1997 SD 96, ¶ 10, 567 NW2d at 356). As the North

Dakota Supreme Court concluded with regard to other judgment calls made in an

animal control situation: “The reasonable police officer will ‘know it when [he

[sees]] it.’” City of Belfield v. Kilkenny, 729 NW2d 120, 126-27 (ND 2007) (citing

Jacobellis v. Ohio, 378 US 184, 197, 84 SCt 1676, 12 LEd2d 793 (1964) (Stewart, J.,

concurring) (“[T]he Court . . . was faced with the task of trying to define what may

be indefinable. . . . But I know it when I see it . . ..”)).

[¶20.] In summary, a trial court’s factual findings as to the existence of

exigent circumstances are reviewed under the clearly erroneous standard. State v.

Babcock, 2006 SD 59, ¶ 12, 718 NW2d 624, 628. However, whether the facts

constitute exigent circumstances is a mixed law-fact question reviewed de novo. Id.;

Matter of Application No. 5189-3 to Extend Time, 467 NW2d 907, 914 (SD 1991).

Given the open and obvious safety hazard presented by Edwards’s traveling coterie

of cats, the investigating officer here was clearly confronted with a situation

demanding immediate attention to avoid serious injury and to protect the health,

welfare and safety of citizens. Accordingly, the circuit court did not err in finding

-9-
#25408

that exigent circumstances justified the warrantless impoundment of Edwards’s

cats. 5

[¶21.] Edwards next argues that in ratifying the impoundment of her cats the

circuit court failed to make an independent evaluation, or to enter factual findings

supported by actual evidence and conclusions supported by applicable law. Citing

Blackwell, 2001 SD 127, 635 NW2d 581, Edwards argues this deprived her of due

process of law.

[¶22.] Blackwell was a criminal case. Police officers made repeated attempts

to impound a dog the police had previously deemed “dangerous” under a city

ordinance. The owner was subsequently charged and convicted after a bench trial

for violating an ordinance imposing certain requirements for keeping a dangerous

animal. As part of the criminal proceedings, the court failed to make an

independent factual determination as to whether the dog was “dangerous,” instead

yielding to the police officers’ determination of that issue. This Court held that the

city was required to prove, as an element of the crime, that the dog was dangerous

beyond a reasonable doubt, and that the trial court’s failure to evaluate the

evidence and make an independent finding of fact on the issue of the dog’s

dangerousness deprived the defendant of due process.

5. In reaching this conclusion, the distinction is emphasized between the safety
risk in this case and that in more typical situations involving the
transportation of a pet. In that regard, the significant factors are the large
number of animals involved here and the fact that they were seen running
loose and climbing in a jam-packed vehicle and clearly interfering with the
driver’s ability to see and focus on her driving task. These unique
circumstances are not normally present in situations involving the
transportation of a pet in a car.

-10-
#25408

[¶23.] This was not a criminal case like Blackwell where the elements of an

offense had to be proven beyond a reasonable doubt. Here, the court considered the

evidence and applied the elements or standards under SDCL 40-1-5 in determining

that exigent circumstances justified the impoundment of Edwards’s cats. While the

court did not enter written findings of fact and conclusions of law, it did make oral

findings and conclusions. Although this Court has expressed a preference for

written findings and conclusions, it has accepted oral findings and conclusions

where the basis of the trial court’s ruling is clear. See In re Guardianship and

Conservatorship of Fischer, 2008 SD 51, ¶ 8, 752 NW2d 215, 217 (stating that

generally the failure to file findings of fact and conclusions of law is reversible error,

but that this Court may decide the appeal without further findings if it feels it is in

a position to do so); State v. Stevenson, 2002 SD 120, ¶ 10, 652 NW2d 735, 739

(observing that this Court has accepted verbal findings and conclusions where the

record leaves no room for speculation and conjecture concerning what the trial court

found or concluded). Since the basis of the trial court’s ruling in this case is clear,

there is no necessity of a remand for the entry of written findings of fact and

conclusions of law.

[¶24.] Based upon the foregoing, there was no due process violation in the

manner of the court’s ruling on the State’s motion for ratification of the

impoundment of Edwards’s cats. Accordingly, there was no violation of Edwards’s

constitutional rights rising to the level of plain error in the impoundment of

Edwards’s cats.

ISSUE TWO

-11-
#25408

[¶25.] Whether the evidence is sufficient to sustain the order
ratifying the impoundment of Edwards’s cats.

[¶26.] Edwards argues the evidence is insufficient to sustain the circuit

court’s ratification of the impoundment of her cats. A circuit court’s findings are

reviewed under the clearly erroneous standard.

We will not set aside a [circuit] court’s
findings of fact unless they are clearly
erroneous. A [circuit] court’s finding is
clearly erroneous if, after reviewing the
entire evidence, we are left with the definite
and firm conviction that a mistake has been
made[.] All conflicts in the evidence must be
resolved in favor of the [circuit] court’s
determinations. The credibility of the
witnesses, the weight to be accorded their
testimony, and the weight of the evidence
must be determined by the [circuit] court and
we give due regard to the [circuit] court’s
opportunity to observe the witnesses and the
evidence. We review any documentary or
deposition evidence under a de novo
standard of review.

“On review the successful party is entitled to the benefit
of his version of the evidence and of all favorable
inferences fairly deducible therefrom.”

In re Estate of Pringle, 2008 SD 38, ¶ 18, 751 NW2d 277, 284 (citations omitted).

[¶27.] Edwards argues the evidence is insufficient to sustain the

impoundment because there was no showing that her cats were being “inhumanely

treated” as required by SDCL 40-1-5. Edwards then offers a lengthy analysis of

what constitutes “inhumane treatment” of an animal under the applicable statutory

definitions. However, as discussed under the first issue, SDCL 40-1-5 also allows

the warrantless seizure of animals under “exigent circumstances” and the circuit

court found exigent circumstances here. The evidence set forth under the first

-12-
#25408

issue, viewed in a light most favorable to the circuit court’s finding of a safety

hazard and exigent circumstances, was more than adequate to support the

impoundment of Edwards’s cats.

ISSUE THREE

[¶28.] Whether Edwards’s rights to due process of law were denied by
the lack of adequate notice of the hearings in this matter.

[¶29.] Generally, a person has a protected property interest in a domesticated

animal and is entitled to due process of law in the deprivation of that interest. See

Blackwell, 2001 SD 127, ¶¶ 13 & 14, 635 NW2d at 585. Due process requires notice

and the right to be heard in a meaningful time and manner. Id.; Gul v. Center for

Family Medicine, 2009 SD 12, ¶ 19, 762 NW2d 629, 635. Edwards argues she was

deprived of due process here because she was not given adequate notice of the two

hearings held in this matter.

[¶30.] Edwards appeared for both hearings and registered no complaint or

objection to the notice provided. Moreover, at several points in the first hearing, the

circuit court specifically offered her the opportunity for a continuance to consult

with legal counsel, to come back with an attorney, or to prepare some sort of defense

or plan or to provide further information as to why the cats should be returned to

her. Edwards took no advantage of these opportunities and at no point in either

hearing did she request additional time.

[¶31.] Generally, questions over personal jurisdiction, venue and notice must

be raised at the first reasonable opportunity or they are waived. Kubik v. Route

252, Inc., 762 A2d 1119, 1123 (PaSuperCt 2000). Moreover, actual participation in

legal proceedings waives irregularities in notice and service procedures and even a

-13-
#25408

lack of formal notice. Flanders v. Ford City Borough Council, 986 A2d 964, 973

(PaCommwCt 2009). See also Mattingly v. Charnes, 700 P2d 927, 928 (ColoCtApp

1985) (stating that one who is notified, appears and participates in a hearing cannot

later be heard to complain as to the sufficiency of the notice he received); Day v.

Kolar, 341 NW2d 598, 599 (Neb 1983) (stating that failure to object to the form of

notice and acting on the notice generally waives any objection to the form of the

notice); In re Welfare of H.S., 973 P2d 474, 483 (WashCtApp 1999) (stating that

notice is a matter of personal jurisdiction, an objection to which is waived when a

party appears and litigates the issues). This Court has applied similar principles.

See Grajczyk v. Tasca, 2006 SD 55, ¶ 9, 717 NW2d 624, 628 (stating that defenses

involving personal jurisdiction and insufficient service of process must be raised at

the time of the first significant defensive move or are waived); Rapid City Educ.

Ass’n on Behalf of Lynch v. Rapid City School Dist. No. 51-4, 446 NW2d 770, 771

(SD 1989) (stating that an objection to personal jurisdiction is waived if a party fails

to object at the appropriate time).

[¶32.] Since Edwards actually participated in the hearings in this matter

without any objection to personal jurisdiction or the sufficiency of notice, her

arguments in this regard are waived. Although Edwards seeks to invoke plain

error, she fails to demonstrate prejudice. See Bowker, 2008 SD 61, ¶ 45, 754 NW2d

at 69-70 (stating that when plain error is alleged, the defendant bears the burden of

showing the error was prejudicial).

[¶33.] “Prejudice” in the context of plain error requires a showing of a

“reasonable probability” that, but for the error, the result of the proceeding would

have been different. United States v. Rush-Richardson, 574 F3d 906, 911 (8thCir

-14-
#25408

2009). “‘The defendant’s burden is to “satisfy the judgment of the reviewing court,

informed by the entire record, that the probability of a different result is sufficient

to undermine confidence in the outcome of the proceeding.”’” Id. (quoting United

States v. Kent, 531 F3d 642, 655-56 (8thCir 2008). Edwards fails in any such

showing here. The facts of this matter were never contested in any significant way.

Edwards never disputed that the cats were running loose in her car and the

pictures admitted into evidence reflect the deplorable conditions in the vehicle and

that it was cluttered and jam-packed. Edwards never disputed that she nearly ran

into the patrol car of the officer who impounded the cats. Her sole defense before

the circuit court and this Court is that the cats were healthy, well-cared-for, and

humanely treated. Yet, as discussed under the second issue, whether they were

being treated humanely or not was not a relevant consideration in the court’s

determination that there were exigent circumstances resulting from the safety

hazard posed by the roving cats.

[¶34.] In the absence of any showing of prejudice resulting from a defect in

the notices of hearings in this matter, Edwards’s due process claims are deemed

waived.

[¶35.] Affirmed.

[¶36.] KONENKAMP and ZINTER, Justices, concur specially.

[¶37.] MEIERHENRY and SEVERSON, Justices, dissent.

KONENKAMP, Justice (concurring specially).

[¶38.] We have two questions before us: (1) did the officer have “sufficient

cause” to believe that a cross-country trip with fifteen cats loose in an over-packed

-15-
#25408

car was inhumane treatment of animals? and (2) were there exigent circumstances

justifying impoundment of the cats without a warrant or court order? The only

statute cited to justify the officer’s seizure and the circuit court’s ratification of that

seizure was SDCL 40-1-5, dealing with mistreatment or neglect of animals.

Whether pedestrians, motorists, or the general public may have been endangered is

not germane to these questions. The circuit court found that the “living conditions

of the animals were neglectful,” and focused on “visibility” and “safety.” If safety

was the basis for the decision, then only the safety of the cats was subject to

inquiry.

[¶39.] On the question of inhumane treatment, the cats were travelling in a

small car packed with belongings, leaving little room for movement. As noted by

the officer, “there was a strong odor of ammonia emanating from the car.” Edwards

and the cats had been living in the car for several days, and Edwards had no money.

Before residing in the car together that week, the cats had been cared for in Huron

at a humane society shelter. A humane society officer testified that Edwards was

not providing the standard of care necessary for cats.

[¶40.] On the question of exigent circumstances, an objectively reasonable

officer could deduce that with the cats obstructing the driver’s view of the road, in

their cramped and squalid accommodations, the animals were subjected to

mistreatment and neglect, and their immediate safety was in jeopardy. See SDCL

40-1-2.4; SDCL 40-1-5. The dissent is correct when it declares that the term exigent

circumstances “must be read to refer to emergency situations where impoundment

without a warrant or court order is necessary to protect the well-being of the

animal.” Indeed, the owner was transient; her automobile was her temporary

-16-
#25408

residence. She was passing through Pierre when she was reported at 11:15 at

night. Therefore, exigent circumstances existed to immediately impound the

animals for their safety. There being no error of law or clearly erroneous fact

finding, the circuit court should be affirmed.

[¶41.] ZINTER, Justice, joins this special writing.

SEVERSON, Justice (dissenting).

[¶42.] Because the facts of this case do not constitute “exigent circumstances”

as that phrase is used in SDCL 40-1-5, I respectfully dissent. The trial court’s order

ratifying the impoundment of Ms. Edwards’s fifteen cats was error, and Ms.

Edwards’s cats should be returned to her care. Furthermore, the requirements of

SDCL 40-1-5 were not met initially, and the State cannot require Ms. Edwards to

pay the costs of her cats’ care as a condition of their return to her.

[¶43.] This case involves a matter of statutory interpretation. Our rules of

statutory interpretation are well settled. “The purpose of statutory construction is

to discover the true intention of the law, which is to be ascertained primarily from

the language expressed in the statute.” In re Guardianship of S.M.N., T.D.N., and

T.L.N., 2010 SD 31, ¶9, 781 NW2d 213, 217-18 (quoting In re Guardianship and

Conservatorship for T.H.M. and M.M.M., 2002 SD 13, ¶7, 640 NW2d 68, 71 (quoting

Martinmaas v. Engelmann, 2000 SD 85, ¶49, 612 NW2d 600, 611)) (additional

citation omitted). “The intent of a statute is determined from what the Legislature

said, rather than what [this Court] thinks it should have said, and [this Court] must

confine itself to the language used.” Id. (citations omitted). “Words and phrases in

a statute must be given their plain meaning and effect.” Id. (citations omitted).

-17-
#25408

“When the language in a statute is clear, certain, and unambiguous, there is no

reason for construction, and this Court’s only function is to declare the meaning of

the statute as clearly expressed.” Id. (citations omitted).

[¶44.] SDCL 40-1-5 provides the procedure for the impoundment of an

animal:

Any peace officer, agent of the board, or agent or officer of any
humane society finding an animal inhumanely treated, as
defined in § 40-1-2.4, shall, pursuant to a warrant or court order,
cause the animal to be impounded or otherwise properly cared
for, and the expenses of such impoundment or care shall be a
lien on the animal to be paid before the animal may be lawfully
recovered. However, a warrant or court order is not necessary if
the animal is severely injured, severely diseased, or suffering
and any delay in impounding the animal would continue to
cause the animal extreme suffering or if other exigent
circumstances exist. If any animal is impounded or subjected to
other action under this section without a warrant or court order,
the officer or agent shall subsequently show cause for the
impoundment or other action to the court, and the court shall
issue an order ratifying the impoundment or action; or, if
sufficient cause for the impoundment or action is not shown, the
court shall order the return of the animal to the owner or other
appropriate remedy.

SDCL 40-1-2.4, in turn, defines the inhumane treatment of an animal:

[T]he inhumane treatment of an animal is any act of
mistreatment, torture, cruelty, neglect, abandonment,
mutilation, or inhumane slaughter of an animal that is not
consistent with generally accepted training, use and husbandry
procedures for the species, breed, physical condition, and type of
animal.

Furthermore, SDCL 40-1-2.3 defines neglect:

[T]he neglect of an animal is the failure to provide food, water,
protection from the elements, adequate sanitation, adequate
facilities, or care generally considered to be standard and
accepted for an animal’s health and well-being consistent with
the species, breed, physical condition, and type of animal.

Finally, SDCL 40-1-2.2 defines mistreatment, torture, and cruelty of animals:

-18-
#25408

[T]he mistreatment, torture, or cruelty of an animal is any act or
omission whereby unnecessary, unjustifiable, or unreasonable
physical pain or suffering is caused, permitted, or allowed to
continue including acts of mutilation.

[¶45.] A review of SDCL 40-1-5 and its accompanying definitions reveals that

impoundment is appropriate in dire cases of animal abuse or in certain emergency

situations. Under SDCL 40-1-5, an officer may, pursuant to a warrant or court

order, impound an inhumanely treated animal. SDCL 40-1-5 also affords officers

the authority to impound an animal without a warrant or court order if an animal is

severely injured, severely diseased, or in extreme suffering. An officer is thus able

to act quickly to protect the well-being of an animal in certain enumerated

emergency situations. However, because not every emergency situation requiring

immediate impoundment could be contemplated by the statute, SDCL 40-1-5

provides that a warrant or court order is not necessary for impoundment where

“exigent circumstances” exist.

[¶46.] The State argues that Officer Jandt properly seized Ms. Edwards’s cats

without a warrant or court order on the basis that “exigent circumstances” existed.

Because the phrase “exigent circumstances” is ambiguous, we resort to canons of

statutory construction to ascertain its meaning. See S.M.N., 2010 SD 31, ¶9, 781

NW2d at 218 (citations omitted). “Under the canon of statutory construction known

as ejusdem generis, ‘where general words follow the enumeration of particular

classes of things, the general words will be construed as applying only to things of

-19-
#25408

the same general class as those enumerated.’” 6 Argus Leader v. Hagen, 2007 SD

96, ¶18, 739 NW2d 475, 481 (quoting Nielson v. AT&T Corp., 1999 SD 99, ¶15, 597

NW2d 434, 439 (quoting Wendell v. S.D. Dep’t of Transp., 1998 SD 130, ¶7, 587

NW2d 595, 597)) (additional citation omitted). See Goetz, 2001 SD 138, ¶24, 636

NW2d at 682 (citing Sioux Falls Sch. Dist. v. Koupal, 526 NW2d 248, 252 (SD 1994);

State v. Galati, 365 NW2d 575, 577 (1985)) (additional citation omitted). The

meaning of the phrase “exigent circumstances” must be discerned considering the

context in which it is used.

[¶47.] The general phrase “exigent circumstances” in SDCL 40-1-5 follows an

enumeration of a particular class of things. The particular class of things

enumerated is emergency situations where impoundment is necessary to protect the

6. The canon of ejusdem generis does not apply if the specifically enumerated
class is exhaustive.

[W]here the specific words embrace all the persons or objects of
the class designated by the enumeration, the general words take
a meaning beyond the class. To apply the rule in this instance
would render the general words meaningless for the reason that
there is nothing of the same kind (ejusdem generis) to fall within
their purview. Its application, consequently, would contravene
the more important rule of construction that all words are to be
given effect. . . . In order to prevent their rejection as surplusage,
the general words take an unrestricted meaning on the ground
that the [L]egislature, by the addition of general words to an
exhaustive enumeration, must have intended that they have
meaning outside the class.

Goetz v. State, 2001 SD 138, ¶24, 636 NW2d 675, 682-83 (quoting 2A
Sutherland, Statutory Construction § 47:21 (6th ed 2000)) (emphasis
omitted). Here, SDCL 40-1-5 does not specifically enumerate every situation
in which an officer may impound an animal without a warrant or court order.
Contra id. The canon of ejusdem generis therefore restricts the meaning of
the general term “exigent circumstances,” and the term does not take a
meaning beyond the class.

-20-
#25408

well-being of an animal. According to the canon of ejusdem generis, the general

phrase “exigent circumstances” cannot take a meaning beyond this particular class.

See Argus Leader, 2007 SD 96, ¶18, 739 NW2d at 481 (citations omitted).

Therefore, the term “exigent circumstances” must be read to refer to emergency

situations where impoundment without a warrant or court order is necessary to

protect the well-being of an animal. See id. See also supra ¶15 (citing Blackwell,

2001 SD 127, ¶16 n2, 635 NW2d at 586 n2 (“We recognize that there may be times

when an emergency exists, or when immediate action is necessary to protect the

health, welfare, and safety of the citizens. Under such circumstances, subsequent

judicial consideration may become impracticable.”)).

[¶48.] “[T]he construction of a statute and its application to the case at hand

presents a question of law” that we review de novo. Tschetter v. Berven, 2001 SD

11, ¶6, 621 NW2d 372, 375 (quoting Shevling v. Butte Cty. Bd. of Comm’rs, 1999 SD

88, ¶12, 596 NW2d 728, 730). The trial court’s factual findings are reviewed under

the clearly erroneous standard. Babcock, 2006 SD 59, ¶12, 718 NW2d at 628

(citation omitted). Once the facts have been determined, however, whether those

facts constitute “exigent circumstances” is reviewed de novo. See id. See also

S.M.N., 2010 SD 31, ¶11, 781 NW2d at 218 (citation omitted).

[¶49.] The State argues that “exigent circumstances” existed because Ms.

Edwards’s fifteen cats were not confined to kennels and obstructed her view while

driving. 7 The State cites SDCL 32-26-43, 8 which relates to the maximum number

7. The majority cites State v. Dillon, 2007 SD 77, 738 NW2d 57, and others in
support of its contention that the need to protect or preserve life and avoid
serious injury are valid considerations in determining the existence of
(continued . . .)
-21-
#25408

of passengers in a vehicle and provides that a vehicle may not be loaded so as to

obstruct the view of the driver. The State provides no authority for the notion that

animals traveling in a vehicle must be confined to kennels. It strains credibility to

conclude that the facts of this case constitute the type of emergency situation

requiring an officer to act quickly to impound animals without a warrant or court

order in order to protect the animals.

[¶50.] The State also suggests that impoundment was necessary due to Ms.

Edwards’s inhumane treatment and neglect of her cats. SDCL 40-1-5 provides,

however, that an officer who finds an inhumanely treated animal must obtain a

warrant or court order prior to impoundment. Had Officer Jandt believed that Ms.

Edwards’s cats were inhumanely treated, SDCL 40-1-5 required that he obtain a

warrant or court order. If inhumane treatment rather than “exigent circumstances”

was the basis of the impoundment, it was done in violation of SDCL 40-1-5 because

Officer Jandt did not obtain a warrant or court order prior to impoundment.

[¶51.] Nevertheless, the State argues that Ms. Edwards’s cats were

______________________
(. . . continued)
“exigent circumstances.” See supra ¶15. Those cases, however, are
inapplicable as they define the parameters of the exigent circumstances
exception to the warrant requirement under the Fourth Amendment. In the
present case, the meaning of the phrase “exigent circumstances” should be
ascertained with reference to SDCL 40-1-5. It should not be borrowed from
Fourth Amendment analysis.

8. SDCL 32-26-43 provides:

No person may drive a vehicle when it is so loaded, or when
there are in the front seat such a number of persons, exceeding
three, as to obstruct the view of the driver to the front or sides of
the vehicle or as to interfere with the driver’s control over the
driving mechanism of the vehicle.

-22-
#25408

inhumanely treated and neglected because she failed to provide an adequate

“facility for them to live and play.” See SDCL 40-1-2.3, 2.4. The State contends that

“[t]he cats had little or no room to move around, to exercise, or to play. . . . This

undoubtedly caused unnecessary suffering to the cats by being confined for such

long periods of time in such a small space.” Yet, the State initially provided the cats

no better facilities than Ms. Edwards. At the hearing on August 24, 2009, to allow

the State to transfer ownership of the cats to the Humane Society, the trial court

asked whether the cats were then living at the city pound. The State’s Attorney

replied, “Yes. And we have to remove them today. They are – they have been in

cages and have only been able to get out for short periods of time. That is not the

condition we want them in. We do not want them to be there any longer.”

[¶52.] The question before this Court is not whether Ms. Edwards’s cats lived

in ideal conditions or whether they may receive better care elsewhere. The question

is whether “exigent circumstances” existed to allow Officer Jandt to seize the

animals without a warrant or court order. That question must be answered in the

negative. Ms. Edwards provided her cats with food, water, protection from the

elements, adequate sanitation, and affection. Her cats had been spayed or neutered

and had received their immunizations. Indeed, Dr. Joseph Engelhart, a

veterinarian in Huron, South Dakota, examined Ms. Edwards’s cats one month

prior to their seizure and found them in “good health” with “no evidence of neglect.”

Despite the State’s avowed concerns regarding Ms. Edwards’s ability to operate her

vehicle amid her fifteen cats, the State did not cite her with a traffic violation. The

claims of “exigent circumstances” and inhumane treatment are a pretext. If safe

operation of the vehicle was the concern, the police should have addressed that

-23-
#25408

issue and not exposed the taxpayers to the cost of caring for animals wrongfully

seized from Ms. Edwards.

[¶53.] Ms. Edwards’s cats should be returned to her care. The requirements

of SDCL 40-1-5 were not met initially, and the State cannot require Ms. Edwards to

pay the costs of her cats’ care as a condition of their return to her. See SDCL 40-1-5

(“[T]he expenses of such impoundment or care shall be a lien on the animal to be

paid before the animal may be lawfully recovered.”). Because I would reverse on

this basis, it is not necessary to address the remainder of Ms. Edwards’s arguments

on appeal.

[¶54.] MEIERHENRY, Justice, joins this dissent.

-24-