-: SJC-13531, Commonwealth v. Maryann Russo.
-: Okay, Attorney Cusick, whenever you're ready.
-: Good morning, Your Honors, may it please the court,
Tracey Cusick for the Commonwealth.
Your Honors, the Commonwealth is asking this court
to vacate the allowance of the motion to dismiss,
and restore this animal cruelty case to the trial list.
In this case, the motion judge had before him
the detailed record of application for complaint,
and it contained ample probable cause
to charge this defendant with animal cruelty.
The motion judge dismissed the case,
finding that the cruelty statute did not have
an affirmative duty to euthanize a pet
that was loved and cared for,
and I suggest that that was an incorrect standard to apply
and went far beyond what was necessary
to establish probable cause.
-: As I look at the statute,
what I'm stuck on is the word willfully
and how we're going to interpret that,
because I think it's significant,
because sometimes we say willfully means intentionally
by design, not accident, and then sometimes we say
willfully means you have to intend the harmful consequences.
I know we've said the first one in the arson cases,
but I'm not, most of the time we say
there's a harmful consequence.
-: Your Honor, I would suggest that in this case,
with either definition, we would get to willful here
in that the record before the motion judge showed
ample evidence that this dog was suffering,
and that the defendant was aware of it
and was not taking any steps to alleviate
or any palliative care,
anything to prevent the dog from suffering further.
-: Where did they get the pain medication?
-: Your Honor, that is not in the record
before the application for complaint.
Again, that's something that I suggest if this were to go
to trial, would be established at a trial
when the Commonwealth would have an opportunity
to bring in additional evidence
as to where that may have came from,
who prescribed it when it was obtained by the defendant.
So I suggest that at the probable cause phase,
the fact that the pain medication was present in the house
and that there was a representation
that the dog wasn't being given the medication
because according to the mother, the dog didn't need it,
coupled with the other statements again
where when the officer mentioned concerns
about the animal's suffering and said it was obvious,
rather than address anything like that,
the family made comments about don't include that
and don't mention that.
-: So as we track the statute, we have the owner
of the animal knowingly, and there's no dispute,
willfully intend the harmful consequences,
authorized or permitted the dog to be subjected to,
and you're saying that the intended the harmful consequences
of that being of unnecessary suffering?
-: Not exactly, Your Honor.
I mean, here, clearly, the defendant knowingly
and willfully, I would suggest,
her actions were knowing and willfully.
She knew what she was doing,
she knew what the results would be,
and proceeded with this course of conduct.
-: She has to, as you said, if we look at the second part
of willfully, for intend the harmful consequences,
'cause we don't have torture or cruelty per se.
We have unnecessary suffering.
Where's the evidence that she intended
the unnecessary suffering of the animal?
-: Your Honor, I could suggest that could come
from her actions again, at probable cause.
-: But let me first ask you, under your reading
of the statute, that's your burden of proof, correct?
At least on probable cause.
-: We would have to satisfy all of the elements
on probable cause.
We would have to provide some evidence
to meet all of the elements.
-: Okay, including intended unnecessary suffering,
so again, where's the probable cause
of that finding, for that finding?
-: I would suggest here the probable cause could be found
from the fact that the defendant, again,
at the animal hospital, took the animal out
of the animal hospital against medical advice,
and represented she was gonna bring the dog
to another veterinarian.
Upon learning that the special officer was investigating
the case, left a voicemail that I suggest
a reasonable inference is, is that it was false
about the dog having recovered,
and looking at that, I suggest that that shows
she was aware of what the dog was experiencing,
and again, for her own reasons,
did not wish to alleviate the dog's pain,
and I would suggest that that's something
that could be found to be willful.
-: What do we do with the record showing
that there was nothing to be done
to alleviate the dog's pain?
-: Well, Your Honor, we have, the veterinarian said
that the dog was super painful and nothing could be done,
but also we have the evidence
that the defendant removed the dog from the animal hospital
against medical advice, and-
-: Buy yeah, I mean, you're not saying
that the dog had to be euthanized.
Atty. Cusick: No. -: No.
Atty. Cusick: That is not the Commonwealth's argument.
-: Yeah, the Commonwealth's argument I thought was
that, related to the pain that this dog was suffering.
Atty. Cusick: Yes.
-: But I'm wondering how the vet's statement
that the pain cannot be controlled is consistent
with the defendant intending unnecessary suffering
if it can't be controlled.
-: Your Honor, I would suggest
where we're at the probable cause stage,
we would have more evidence at trial.
But I know one of the amicus briefs I think mentioned
the Kligler decision
and there's a talk of palliative sedation.
Maybe, you know, the dog could have been sedated
such that the dog was not feeling pain.
Again, that's something that could potentially-
-: But the record shows just the opposite.
It's not like the record doesn't say anything.
I thought the record was
that the pain could not be controlled.
-: And that was one veterinarian's opinion
or statement in there, and again,
the defendant then removed the animal from the hospital.
She wasn't prevented from doing that.
She didn't bring the dog to another veterinarian
for care there.
-: But the vet didn't also give her pain medicine, right?
The vet says, "We want you to euthanize her,"
but the vet doesn't say, "Here's pain medicine.
While you go see this other vet,
the dog needs pain medicine."
'Cause she said the dog's in super pain, right?
-: Yes, Your Honor, that is what the veterinarian says.
-: Then she lets her leave.
I'm not saying she shouldn't have let her leave,
but she also doesn't offer her any medicine, right?
According to this record.
-: According to this record, Your Honor, but I suggest
we don't have the medical records from this visit
and from the visit on December 25th.
-: Well, but some vet gave her pain meds?
-: Yes, Your Honor, that they did have possession
of pain medication, that is in this record,
and again, where that pain medication came from is something
that I suspect will be established at a trial,
and I suggest here, there's several questions raised in some
of the briefs about, well, the officer didn't do this
or ask this or where did this come from.
I suggest that again, that the answer
to those questions were not necessary
to develop probable cause
to charge animal cruelty in this case.
-: Sorry, speaking of probable cause more broadly,
could you address whether you think
there was probable cause here on the record before us
if we accept the following reading of the statute,
which is a little similar to some
of what the appeals court said,
that the statute criminalizes, you know,
"knowingly and willfully authorizing
or permitting actions subjecting an animal
to unnecessary torture, cruelty, or suffering."
I'm playing with the words a little bit as you'll well know,
'cause must know the statute backward and forwards.
But it's not just the existence of pain from natural causes.
It's that the person authorizes or permits subjecting,
and I'm putting in brackets around subjecting an animal.
And I think that one could mount an argument
that that is a fairly natural reading of the statute,
given that all of the rest of the items
in the statute are just terrible things
that people are doing to animals,
a whole listing of awful forms of cruelty
that people cannot do to animals,
and then essentially the final provision is,
and you cannot willfully and knowingly authorize
and permit subjecting an animal to cruelty and suffering.
So I think the appeals court addressed it
through the lens of ambiguity or something,
but I think it might also be read as just naturally saying
you can't do all these terrible, cruel things,
and you can't willfully and knowingly authorize
someone else to do those things.
So I know you don't want to,
but could you accept that reading of the statute
where the animal has to be subjected in some way
by a human to suffering as opposed to just natural causes?
Would you say that there's still probable cause here
under that reading of a statute, and if so, why?
-: Your Honor, I would suggest that the action by a person
or something like that, that this language encompasses that,
but is not limited to that, and I suggest
that that's the plain reading of the statute.
And I don't know if I'm answering your question
because I think I disagree with the premise.
-: Well, but I'm asking you to embrace the premise
for a minute, and your brief explains very clearly
the other, not the premise, but under the premise, because
there obviously is an omission here.
Atty. Cusick: Sorry, now, what?
-: There's an omission here, right?
So she did not do various things for this animal
that it is contended amounted to inflicting
pain and suffering on the animal.
So are you contending that, do you think
that there's probable cause even under the reading
of the statute that I laid out that you do not wanna accept
on the basis of a sort of omission theory?
-: Your Honor, I would think here, if the court is saying
there has to be an actor, some other person.
-: Someone subjecting the animal to cruelty.
-: And again, I disagree with the premise,
but again, here, there's no,
the record before the motion judge didn't suggest
there was some other person.
-: Well, there are, there's the mother
and the other person living in the house.
Arguably, she's authorizing
or permitting them to allow the suffering, right?
I mean, you could, there are, I mean, you're relying
on the conduct of the mother and somebody else
to prove the defendant's misconduct in this case.
I'm not sure that's appropriate,
but that's what you're doing in part,
so there is some authorizing and permitting going on.
-: Well, Your Honor, I would suggest-
-: Trying to help you here.
-: Thank you, Your Honor.
Here, I think the evidence is
that the defendant was not in the house,
that she had gone to work and had left the dog
in the care of other family members.
-: So is she permitting her family members
to allow the animal to suffer unnecessarily?
-: Your Honor, I think that might be a stretch
to say that that's-
-: If that's a stretch, you've got some problems
with Justice Dewar's question then,
because those are the only people she's,
again, accepting her framework,
those are the only people who are doing that, right?
-: Well, Your Honor, I suggest that the defendant is
the person identified as the dog's owner
and the person who is identified as making the shots.
-: But Justice Dewar's framing this as this looks like,
the words used, because there's a legislative history
saying this authorized and permits was used
to expand the statute in other contexts, right?
Because they don't want owners off the hook by subcontract,
you know, giving their horse to somebody
who then mistreats it.
So there is some issue with that authorizing
and permitting language being added
to deal with third parties, correct?
-: Yes, Your Honor, so perhaps again, under that reading,
where again I'm not accepting the premise,
but if that is the premise,
then yes, I accept that you could say
that the family members were the actors in this situation.
I would accept that. -: Can I ask you to address
a different question, which is,
or slightly different question?
When the statute requires an owner to affirmatively provide
care, shelter, food, it specifically says
the owner who doesn't do these things,
which is not palliative care, it specifically says food,
drink, shelter, sanitary environment,
or protection from the weather,
those things are punishable as animal cruelty
when the owner fails to provide those,
but there is no similar act of omission
with the final paragraph
under which the Commonwealth seeks to proceed.
Usually in statutory construction,
the statement of one thing in one paragraph indicates
not the thing in the other, and I'm wondering
what the Commonwealth's response is to that.
-: The Commonwealth's response to that is it's a separately,
a separate part of the statute, it's got separate language
with the knowing and willful that doesn't apply
to the other aspects about the food
and the shelter and all of that.
So it's got a more heightened mental state required,
and then when you get to suffering again,
that's something that can happen in-
-: This is I board my dog at the horrible dog daycare,
and I know that they mistreat the animal.
That's, I think, the scenario that we talked about.
-: I think it would encompass that, Your Honor,
but I think it also encompasses what happened here,
what was alleged in the application for complaint here.
-: Counsel, I don't wanna lose you
before getting an answer to Justice Dewar's question,
because I have the same issue,
but I'm going to make it a little bit more focused.
Can you be, can you construe this language to say
that you are, by omission, you can subject someone to,
by omission, not by doing something affirmative,
that you're subjecting an animal to this by doing nothing?
Can you meet that statutory definition
in saying that you're subjecting an animal
to a naturally occurring condition by doing nothing?
-: Your Honor, I suggest here we can,
because while death is inevitable
for all living creatures, suffering and pain is not,
and so I suggest here that this animal had
a prolonged, painful suffering
that the defendant knowingly and willfully authorized
and permitted the animal to be subjected to
by not taking any-
-: But what's significant, though, when the pure neglect,
when it's laid out in the statute, is described
as food, shelter, et cetera,
not the deprivation of medical care,
which is really what happened here, correct?
-: Well, Your Honor, I see one could argue it that way,
that it's a deprivation of medical care,
or that it's permitting the suffering
to continue for a prolonged amount of time.
-: But then the problem is, under the statute,
the unnecessary suffering,
which I think this animal endured, unfortunately,
that comes in the subjected to portion of the statute,
not the earlier portion of the statute.
Atty. Cusick: Correct.
Justice Budd: Okay, thank you.
-: Thank you very much.
-: Attorney Bolio.
-: Morning, and may it please the court,
I represent Mary Ann Russo.
Ms. Russo is present in the audience this morning.
I believe this case presents a difficult factual scenario.
It certainly did to Ms. Russo when she was confronted
with this with her sick dog.
-: The statute entails natural causes, right?
Natural suffering.
-: I'm not sure it delineates anything,
whether it's natural or unnatural.
-: Right, so if my dog steps in a hole
and breaks its leg, right?
So it's not a deprivation of food, water, shelter,
and I don't take my dog to the vet,
have I caused unnecessary suffering?
-: I'm not sure under the statute.
I mean, I certainly,
my personal choice would be I would take my dog.
Justice Gaziano: That's not criminal?
-: I would take my dog to the vet.
I think in that situation, I think it would matter
what caused the dog to suffer.
-: So if I'm completely indifferent, I say,
"Ah, he's having a bad day,"
that's not cruel and that's not unnecessary suffering?
That's not criminalized?
-: So I guess it could be if you were aware
that your animal had a broken leg
and you allowed the animal to languish at home
with a broken leg and did nothing to treat it.
-: Wouldn't that certainly satisfy knowing?
I don't know if it satisfies willful,
but it certainly would, if the dog steps in a hole
and breaks its leg and is howling nonstop
and in pain, which dogs do.
Atty. Bolio: Yes.
-: You know that dog's suffering,
and you're knowingly allowing that dog
to be subjected to suffering.
I don't know if you're willfully doing it,
'cause that's a whole nother question,
but you're certainly knowingly allowing that dog
to suffer if that's the case, right?
-: I think, I certainly think
that that argument could be made.
I agree with you, Your Honor.
-: Let's go further,
not that it's just an argument, right?
That's knowingly allowing your dog to suffer, isn't it?
Atty. Bolio: Yes.
-: Okay, so how is that different?
Again let's leave willful aside.
How is that different when you know your dog is
in terrible pain at this stage of this illness?
Now, she takes the dog to the vet, I get that,
but if she hadn't taken the dog to the vet,
that would be knowingly allowing the dog
to continue to suffer too, wouldn't it to be subject?
-: I'm not sure that it would.
-: Really, why not?
-: It was because it's not an unnecessary,
he's not suffering unnecessarily.
He's dying a natural death.
-: Well, but well, the vet clearly gave
a different alternative that would ease the,
end the dog's suffering, correct?
Atty. Bolio: Absolutely.
-: And we have your client at least deceiving the vet
on two occasions, correct?
-: I'm sorry, Your Honor?
Justice Gaziano: Being deceptive.
-: I would suggest no.
-: Well, viewed in the light most favorable
to the Commonwealth,
of course you wouldn't suggest that, but yes.
-: In the light most favorable to the Commonwealth,
I believe the evidence suggests
that my client presented the animal
to the vet twice within three weeks,
once on Christmas day, another,
I believe it was January 12th,
and this was an emergency veterinary hospital.
I don't think that my client was doing anything to secret.
-: Well, she said that I'm gonna take the dog
to be euthanized to another vet.
That wasn't true, right?
-: For a second opinion, I'm gonna take the dog
for a second opinion.
Justice Gaziano: To be euthanized.
-: I believe it's for a second opinion.
-: But either way,
and we're just talking about probable cause, right?
Atty. Bolio: Yes, Your Honor.
-: I mean, these seem to be trial issues.
Atty. Bolio: Yes, Your Honor.
-: It does, and that Justice Gaziano
and Justice Wendlandt's point is the thing
that I would like to focus on,
because this is in the light most favorable
to the Commonwealth, so for probable cause,
I'm still wondering how the motion judge could allow
a motion to dismiss with the factual,
at least the alleged factual chronology here
of going in December, saying have the surgery,
I'm not gonna have the surgery, come back a few weeks later,
the dog now has deteriorated and say,
"Now I want the surgery," and the vet says,
"I'm not gonna do the surgery, the dog won't survive."
You've got all of these indications
that this dog is in absolute distress
in the application for the complaint,
and then you have the stuff about,
I'm gonna go to another vet,
I'm not gonna go to another vet,
they don't go to another vet.
We've got all of this stuff
in the application underlying the complaint,
and in the light most favorable to the Commonwealth,
how is this dismissed?
-: I mean, I would suggest in the light most favorable
to the Commonwealth that the statute doesn't call
for involuntary euthanasia, that she didn't commit any-
-: We can leave aside the euthanasia part.
About just the part about also getting treatment again.
So even though there might be the language
from the vet about there's nothing really further I can do,
the issue about whether that's really true,
in the light most favorable to the Commonwealth,
there is indication in the underlying documents
that something, that they got something for this dog, right?
That was in the stuff that underlied the application, right?
Atty. Bolio: Excuse me, Your Honor?
-: That somewhere along the lines, there was some medication,
some sort of treatment that some-
-: I believe the application suggests
that my client noticed a mass
on the side of her dog on Christmas Day,
she thought that it was uncomfortable,
and she presented the dog based upon that.
The application doesn't contain evidence of this, but-
-: Don't you lose unless willfully means that she,
'cause there's no, I don't, I think I understand
how you win this motion to dismiss
if she is required to intend the suffering,
'cause there's no indication in this record
that she wants this dog to suffer, I don't think.
Atty. Bolio: Yes, Your Honor.
-: But if that's not what the statute requires,
probable cause is certainly here for all the reasons
that Justice Georges just pointed out.
But don't you need us to interpret willful
to mean that she has to intend the suffering,
and that's what the statute requires?
Atty. Bolio: I'm not sure.
-: But the statute, to justice,
it says subjected to unnecessary.
Atty. Bolio: Yes. -: Willfully, willfully,
willfully subjecting the animal to unnecessary suffering.
It's not just that she's subject, she subjected the dog
to unnecessary suffering or least suffering.
-: Respectfully, I'm not sure that she did.
-: There's terrible pain.
She's told by the vet that the dog is in super pain, right?
And she doesn't want to euthanize the dog,
nor does she leave with pain medicine.
-: She wasn't prescribed any pain medication
and she wasn't given any supplemental oxygen,
with all due respect, Judge.
-: But if she knows the dog's in super pain,
and the vet is telling her to euthanize,
I understand she doesn't have to euthanize,
but doesn't she have to address the pain?
-: At that point, because the vet said,
I'm not sure that she knew that there was anything
that could be done to control the pain,
because the vet said the only thing
that could be done to control the pain is euthanasia.
-: No, that, yeah, that may be, but again,
this is in the light most favorable
to the Commonwealth, and this is a probable cause.
-: Understood, and in the light most favorable
to the Commonwealth, I would suggest the physical condition
of the animal and the condition
in which the animal was found would suggest
that there's no evidence of abuse,
that everything was being done to provide palliative care.
-: Come on, please.
There's no evidence that this was the right way
of dealing with this dog.
-: I'm not saying that it's the right way
of dealing with the dog,
and I'm not saying that if it was my dog
that I may have put the dog to sleep,
but what I'm suggesting is that there's no evidence
that she intentionally and actively abused this animal.
She loved the animal.
-: There's no intent, there's no evidence possibly
that she intended the suffering.
I get that she wants the dog to live
and she doesn't want the dog to suffer,
but the dog is suffering, then that's different.
-: And in terms of the,
and I understand Your Honor's point, it's well taken.
With regards to the dog's suffering,
there was nothing that could be done
to control that suffering,
-: Well, that seems like a trial issue, right?
I mean, on that, you'd probably lose.
Isn't your best argument that nobody
other than natural causes is subjecting
the dog to that suffering?
-: Yes, yes, it is, Your Honor.
It is my best argument.
-: Even if evidence in the application
that there is something that could have been done?
-: If there's something that could, I'm sorry, Your Honor?
-: That there's something that Ms. Russo could have done
short of euthanasia?
Because the chronology is you can have surgery,
and she says, "I don't want the surgery,"
and then three weeks later comes back and says,
"I want the surgery now," and the vet says,
"I'm not gonna do the surgery now."
So again, this is in the underlying support
for the complaint, and in the light most favorable
to the Commonwealth, drawing all reasonable inferences.
Atty. Bolio: Yes, Your Honor.
-: In their favor, this doesn't get over probable cause?
Atty. Bolio: I don't think that it does.
Justice Georges: Okay.
-: Because there's no evidence of any sort
of suffering that my client subjected the animal to.
She was in a no win situation, a situation
that I think all of us that are blessed
to own pets are faced with.
-: By the way, just that formulation you just said,
there's no evidence that the dog was subjected to suffering.
Atty. Bolio: Yes.
-: But the dog is, the absence of medical care
or the absence of medicine
or painkillers is subjecting that dog,
that dog is suffering, right?
I mean, again, I don't know if she's willfully doing that,
but the dog is suffering.
I find the appeals court,
subjected to, I don't know what that means.
What does that mean?
-: I would suggest caused or permitted
or allowed to be caused.
-: Well, subjected to, the appeals court says is passive.
So it's just they're requiring it not be medical.
I don't know.
-: I would suggest, Your Honor, that when faced
with the situation, there was nothing else,
you know, that she could have done.
She was giving the dog palliative care.
The dog was in a clean diaper.
-: Don't we need to believe that's a factual?
I understand that the mother or the brother says,
"Here are the pain meds," right?
When they go to the house, right?
Do know if that, isn't that a factual issue
whether that's true or not?
Atty. Bolio: Whether those were in fact pain medications?
-: Whether they're telling the truth, whether that's,
even if there were pain medicine,
were they giving that to the dog, was it in any way help?
Is it recognized pain medicine
that a vet would consider palliative care
as opposed to who knows what this stuff is?
We don't know anything about it, right?
-: Right, and I would suggest that there was no investigation
that was conducted by the Commonwealth investigating
and asked who prescribed these pills,
whether or not they saw a veterinarian
or anything of the like.
I would say that that is certainly relevant to this,
but there's no evidence to suggest
that the dog wasn't being given pain medication.
There's some statements of my client's elderly mother,
she's in her mid 80s, that said, the dog, I believe,
that the dog doesn't need these pain pills anymore,
but I think you can take that for what it's worth.
That doesn't mean that my client hasn't been giving the dog
pain medication for three weeks,
or that the dog hasn't been cared for.
I would suggest that the evidence suggests the otherwise,
that the dog was loved, the dog was cared for.
They were providing palliative care.
They were trying to keep the animal healthy,
or sorry, strike that, comfortable in its dying days.
And I would suggest that there's no probable cause
to believe she violated the statute,
and if there's no other question-
-: Can I ask you to address the legislative history a bit?
'Cause it seems like the prior version
of this same statute said something to the effect
of if an owner knowingly and willfully authorizes
or permits the dog to be subjected to
or to suffer unnecessary torture or cruelty,
and that language was changed to the current version.
How does that affect our analysis about whether
or not this new third paragraph requires
affirmative actions by the owner
to prevent pain in a dog?
-: That's subjected to, I'm sorry, I missed the question.
-: Yeah, it used to be, the statute used to say
to be subjected to or to suffer, and no longer says that.
Now it just says to be subjected to suffering.
Is there anything about that change
that affects our analysis?
-: Well, I mean, I would just cite
the appeals court's reasoning that the appeals court wrote
that the passive construction-
-: But it used to have both.
It used to have the passive construction
and also allowing and permitting to suffer.
-: Yes, Your Honor.
I would stand behind that,
the appeals court's evaluation of it.
They wrote that the passive of construction stands
in stark contrast to the act of construction
as to the active voice of the other verbs in the statute,
and it goes on to write, unlike those verbs,
subjected to identifies no actor, and there must be one.
So I would suggest to the court
that the appeals court's reading of the statute,
that there must be an actor that's subjected
the animal to the harm at issue.
I believe that that would be relevant
to this court's determination.
-: But the way you're cons, that's the problem that I have,
is that's giving a nexus to the action,
but it says unnecessary suffering.
So it's not necessarily that there's an actor
that causes it, but back to the original question
from Justice Dewar, by omission,
can't you violate the statute,
or at least for probable cause, by doing nothing
and allowing whatever suffering you didn't cause
to unnecessarily be prolonged?
Can't you do that under this framework?
-: I would say that you can't, not with an animal
that's dying a natural life, not with an animal
whose condition that you've played no part in causing.
I would say that you can't.
If there are no other questions, I'll rest on my brief.
Thank you very much.