IN THE COURT OF APPEALS OF IOWA
No. 15-1948
Filed December 21, 2016
MACKENZIE RUMSEY and
BELA ANIMAL LEGAL DEFENSE AND RESCUE,
Petitioners-Appellants,
vs.
CITY OF DES MOINES, IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,
Judge.
A dog owner appeals a district court ruling rejecting her application for
“immediate return of seized property.” AFFIRMED.
Jaysen C. McCleary, Des Moines, for appellants.
Michelle R. Mackel-Wiederanders and Katharine J. Massier (until
withdrawal), Assistant City Attorneys, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2
PER CURIAM.
The City of Des Moines impounded Mackenzie Rumsey’s1 pit bull terrier,
declared the dog—named Malice—to be a “dangerous animal” under the city
code, and ordered the dog euthanized. Rumsey sought the return of her dog by
filing an application for return of seized property under Iowa Code chapters 809
and 809A (2015). The district court decided those chapters did not provide a
basis for returning the dog to its owner. Finding that statutory analysis correct,
we affirm the district court.
On appeal, Rumsey contends the district court erred in finding chapters
809 and 809A did not apply to the city’s impoundment of Malice because the
governmental agency’s intent to euthanize the dog is “the ultimate forfeiture of
this type of property.” We review rulings based on statutory interpretation for
errors of law. See State v. Adams, 554 N.W.2d 686, 689 (Iowa 1996).
The district court offered the following insightful analysis:
The language of [s]ection 809A.8(1) demonstrates that its
provisions apply to criminal cases prosecuted by a prosecuting
attorney and not to a matter such as this. Section 809A.8(1) states
that property seized for forfeiture shall be released to the owner “if
the prosecuting attorney fails to do either of the following:” 1) file a
notice of pending forfeiture against the property within [ninety] days
after seizure, or 2) fails to file a judicial forfeiture proceeding within
[ninety] days after notice of pending forfeiture. Iowa Code
§ 809A.8(1) (emphasis added). There is no pending prosecution in
this case, and therefore there is no prosecuting attorney. Plaintiff is
not charged with a crime and has never been charged with a crime.
The [c]ode section is simply inapplicable.
1
The petitioners’ filings in the district court alleged legal ownership of the dog was
transferred in July 2015 to DDB Trust and subsequently transferred to Bela Animal Legal
Defense and Rescue. The city responded that no proof of the transfer was provided.
For ease of reference in this opinion, we will refer to the dog’s owner as Rumsey.
3
The court emphasized no indictable offense was pending against the
dog’s owner:
Other language in [c]hapter 809A supports the finding that
the chapter is not applicable to this situation. Section 809A.3 states
that conduct giving rise to forfeiture is an act or omission which is a
public offense and which is a serious or aggravated misdemeanor.
Iowa Code § 809A.3(1). There is no allegation of a serious or
aggravated misdemeanor against the original owner of the dog,
Mackenzie Rumsey, or against the plaintiff, Bela Animal Defense
and Rescue.
Nevertheless, Rumsey claims chapter 809A accords her rights because
the Des Moines animal control officer who took Malice into quarantine was part of
a law enforcement agency. Even if a city’s animal control officer qualifies as a
peace officer under section 809A.6, the quarantine and impoundment process for
animals in the city’s code does not fit within the forfeiture process described in
that statute. Malice was not property subject to forfeiture under section 809A.4.
The district court correctly concluded chapter 809A did not compel the city to
release the dog to its owner.
The same is true for chapter 809. Rumsey contends Malice should be
returned because the dog qualified as “seized property” under section 809.1(1)(c)
(defining “[s]eizable property” as “[p]roperty which if not seized by the state poses
an imminent danger to a person’s health, safety, or welfare”). Rumsey’s
contention does not square with the directives for the disposition of seized
property in section 809.5(1) (“Seized property shall be returned to the owner if
the property is no longer required as evidence or the property has been
photographed and the photograph will be used as evidence in lieu of the
property, if the property is no longer required for use in an investigation, if the
4
owner’s possession is not prohibited by law, and if a forfeiture claim has not been
filed on behalf of the state.”). The district court aptly determined the city did not
seize Malice under section 809.1(1)(c) and section 809.5(1) did not provide for
the dog’s return.
We now turn to Rumsey’s argument that Chief Judge Arthur Gamble’s
ruling in an unrelated case involving the city’s impoundment of a different dog
with a different owner was an “intermediate appellate decision” implicating the
doctrines of “issue preclusion” and “law of the case.” Rumsey claims: “Under
Chief Judge Gamble’s analysis of the [c]ity’s similar actions in another case of
seizing, impounding, and quarantining a dog, Rumsey’s dog was also seized in
utter disregard of the [c]ity’s ordinance and was illegal.” This argument is without
merit. See generally Emp’rs Mut. Cas. Co. v. Van Haaften, 815 N.W.2d 17, 22
(Iowa 2012) (explaining party invoking issue preclusion must show issue in
present case was identical to issue decided in prior action); Clarke Cty. Reservoir
Comm’n v. Robins, 862 N.W.2d 166, 178 (Iowa 2015) (limiting law-of-the-case
doctrine to issues raised and decided on appeal).
Finally, Rumsey claims the judge should have recused herself after
Rumsey filed a motion alleging the judge was biased as a result of obtaining
information about the parties when deciding another aspect of this litigation
against the city.2 We review recusal issues for an abuse of discretion. State v.
2
Rumsey contends the judge “previously lost subject matter jurisdiction over the parties
as she literally had judged the exact parties and evidence which was on appeal.”
Rumsey cites no authority regarding this jurisdictional argument, and we decline to
address it separately from the question of recusal. See Harrington v. Univ. of N. Iowa,
726 N.W.2d 363, 367 n.4 (Iowa 2007) (finding argument waived when litigant failed to
cite authority).
5
Millsap, 704 N.W.2d 426, 432 (Iowa 2005). Here, we find no abuse of discretion
in the court’s refusal to recuse. See State v. Smith, 242 N.W.2d 320, 324 (Iowa
1976) (finding no basis for judge’s disqualification from hearing “evidence
presented in the trial of a prior cause” because it did not create personal bias or
stem from an extrajudicial source).
Rumsey is not entitled to attorney fees.
AFFIRMED.
MacKenzie Rumsey and Bela Animal Legal Defense and Rescue v. City of Des Moines, Iowa
Combined Opinion