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<v ->SJC-13531, Commonwealth v. Maryann Russo.</v>

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<v ->Okay, Attorney Cusick, whenever you're ready.</v>

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<v ->Good morning, Your Honors, may it please the court,</v>

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Tracey Cusick for the Commonwealth.

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Your Honors, the Commonwealth is asking this court

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to vacate the allowance of the motion to dismiss,

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and restore this animal cruelty case to the trial list.

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In this case, the motion judge had before him

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the detailed record of application for complaint,

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and it contained ample probable cause

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to charge this defendant with animal cruelty.

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The motion judge dismissed the case,

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finding that the cruelty statute did not have

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an affirmative duty to euthanize a pet

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that was loved and cared for,

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and I suggest that that was an incorrect standard to apply

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and went far beyond what was necessary

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to establish probable cause.

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<v ->As I look at the statute,</v>

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what I'm stuck on is the word willfully

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and how we're going to interpret that,

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because I think it's significant,

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because sometimes we say willfully means intentionally

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by design, not accident, and then sometimes we say

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willfully means you have to intend the harmful consequences.

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I know we've said the first one in the arson cases,

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but I'm not, most of the time we say

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there's a harmful consequence.

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<v ->Your Honor, I would suggest that in this case,</v>

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with either definition, we would get to willful here

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in that the record before the motion judge showed

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ample evidence that this dog was suffering,

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and that the defendant was aware of it

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and was not taking any steps to alleviate

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or any palliative care,

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anything to prevent the dog from suffering further.

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<v ->Where did they get the pain medication?</v>

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<v ->Your Honor, that is not in the record</v>

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before the application for complaint.

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Again, that's something that I suggest if this were to go

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to trial, would be established at a trial

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when the Commonwealth would have an opportunity

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to bring in additional evidence

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as to where that may have came from,

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who prescribed it when it was obtained by the defendant.

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So I suggest that at the probable cause phase,

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the fact that the pain medication was present in the house

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and that there was a representation

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that the dog wasn't being given the medication

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because according to the mother, the dog didn't need it,

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coupled with the other statements again

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where when the officer mentioned concerns

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about the animal's suffering and said it was obvious,

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rather than address anything like that,

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the family made comments about don't include that

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and don't mention that.

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<v ->So as we track the statute, we have the owner</v>

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of the animal knowingly, and there's no dispute,

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willfully intend the harmful consequences,

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authorized or permitted the dog to be subjected to,

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and you're saying that the intended the harmful consequences

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of that being of unnecessary suffering?

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<v ->Not exactly, Your Honor.</v>

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I mean, here, clearly, the defendant knowingly

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and willfully, I would suggest,

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her actions were knowing and willfully.

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She knew what she was doing,

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she knew what the results would be,

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and proceeded with this course of conduct.

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<v ->She has to, as you said, if we look at the second part</v>

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of willfully, for intend the harmful consequences,

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'cause we don't have torture or cruelty per se.

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We have unnecessary suffering.

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Where's the evidence that she intended

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the unnecessary suffering of the animal?

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<v ->Your Honor, I could suggest that could come</v>

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from her actions again, at probable cause.

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<v ->But let me first ask you, under your reading</v>

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of the statute, that's your burden of proof, correct?

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At least on probable cause.

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<v ->We would have to satisfy all of the elements</v>

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on probable cause.

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We would have to provide some evidence

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to meet all of the elements.

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<v ->Okay, including intended unnecessary suffering,</v>

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so again, where's the probable cause

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of that finding, for that finding?

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<v ->I would suggest here the probable cause could be found</v>

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from the fact that the defendant, again,

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at the animal hospital, took the animal out

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of the animal hospital against medical advice,

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and represented she was gonna bring the dog

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to another veterinarian.

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Upon learning that the special officer was investigating

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the case, left a voicemail that I suggest

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a reasonable inference is, is that it was false

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about the dog having recovered,

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and looking at that, I suggest that that shows

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she was aware of what the dog was experiencing,

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and again, for her own reasons,

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did not wish to alleviate the dog's pain,

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and I would suggest that that's something

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that could be found to be willful.

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<v ->What do we do with the record showing</v>

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that there was nothing to be done

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to alleviate the dog's pain?

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<v ->Well, Your Honor, we have, the veterinarian said</v>

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that the dog was super painful and nothing could be done,

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but also we have the evidence

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that the defendant removed the dog from the animal hospital

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against medical advice, and-

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<v ->Buy yeah, I mean, you're not saying</v>

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that the dog had to be euthanized.

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<v Atty. Cusick>No.</v>
<v ->No.</v>

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<v Atty. Cusick>That is not the Commonwealth's argument.</v>

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<v ->Yeah, the Commonwealth's argument I thought was</v>

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that, related to the pain that this dog was suffering.

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<v Atty. Cusick>Yes.</v>

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<v ->But I'm wondering how the vet's statement</v>

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that the pain cannot be controlled is consistent

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with the defendant intending unnecessary suffering

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if it can't be controlled.

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<v ->Your Honor, I would suggest</v>

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where we're at the probable cause stage,

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we would have more evidence at trial.

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But I know one of the amicus briefs I think mentioned

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the Kligler decision

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and there's a talk of palliative sedation.

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Maybe, you know, the dog could have been sedated

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such that the dog was not feeling pain.

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Again, that's something that could potentially-

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<v ->But the record shows just the opposite.</v>

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It's not like the record doesn't say anything.

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I thought the record was

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that the pain could not be controlled.

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<v ->And that was one veterinarian's opinion</v>

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or statement in there, and again,

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the defendant then removed the animal from the hospital.

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She wasn't prevented from doing that.

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She didn't bring the dog to another veterinarian

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for care there.

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<v ->But the vet didn't also give her pain medicine, right?</v>

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The vet says, "We want you to euthanize her,"

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but the vet doesn't say, "Here's pain medicine.

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While you go see this other vet,

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the dog needs pain medicine."

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'Cause she said the dog's in super pain, right?

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<v ->Yes, Your Honor, that is what the veterinarian says.</v>

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<v ->Then she lets her leave.</v>

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I'm not saying she shouldn't have let her leave,

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but she also doesn't offer her any medicine, right?

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According to this record.

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<v ->According to this record, Your Honor, but I suggest</v>

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we don't have the medical records from this visit

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and from the visit on December 25th.

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<v ->Well, but some vet gave her pain meds?</v>

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<v ->Yes, Your Honor, that they did have possession</v>

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of pain medication, that is in this record,

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and again, where that pain medication came from is something

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that I suspect will be established at a trial,

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and I suggest here, there's several questions raised in some

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of the briefs about, well, the officer didn't do this

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or ask this or where did this come from.

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I suggest that again, that the answer

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to those questions were not necessary

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to develop probable cause

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to charge animal cruelty in this case.

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<v ->Sorry, speaking of probable cause more broadly,</v>

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could you address whether you think

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there was probable cause here on the record before us

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if we accept the following reading of the statute,

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which is a little similar to some

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of what the appeals court said,

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that the statute criminalizes, you know,

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"knowingly and willfully authorizing

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or permitting actions subjecting an animal

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to unnecessary torture, cruelty, or suffering."

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I'm playing with the words a little bit as you'll well know,

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'cause must know the statute backward and forwards.

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But it's not just the existence of pain from natural causes.

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It's that the person authorizes or permits subjecting,

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and I'm putting in brackets around subjecting an animal.

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And I think that one could mount an argument

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that that is a fairly natural reading of the statute,

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given that all of the rest of the items

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in the statute are just terrible things

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that people are doing to animals,

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a whole listing of awful forms of cruelty

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that people cannot do to animals,

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and then essentially the final provision is,

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and you cannot willfully and knowingly authorize

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and permit subjecting an animal to cruelty and suffering.

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So I think the appeals court addressed it

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through the lens of ambiguity or something,

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but I think it might also be read as just naturally saying

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you can't do all these terrible, cruel things,

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and you can't willfully and knowingly authorize

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someone else to do those things.

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So I know you don't want to,

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but could you accept that reading of the statute

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where the animal has to be subjected in some way

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by a human to suffering as opposed to just natural causes?

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Would you say that there's still probable cause here

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under that reading of a statute, and if so, why?

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<v ->Your Honor, I would suggest that the action by a person</v>

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or something like that, that this language encompasses that,

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but is not limited to that, and I suggest

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that that's the plain reading of the statute.

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And I don't know if I'm answering your question

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because I think I disagree with the premise.

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<v ->Well, but I'm asking you to embrace the premise</v>

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for a minute, and your brief explains very clearly

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the other, not the premise, but under the premise, because

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there obviously is an omission here.

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<v Atty. Cusick>Sorry, now, what?</v>

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<v ->There's an omission here, right?</v>

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So she did not do various things for this animal

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that it is contended amounted to inflicting

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pain and suffering on the animal.

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So are you contending that, do you think

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that there's probable cause even under the reading

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of the statute that I laid out that you do not wanna accept

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on the basis of a sort of omission theory?

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<v ->Your Honor, I would think here, if the court is saying</v>

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there has to be an actor, some other person.

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<v ->Someone subjecting the animal to cruelty.</v>

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<v ->And again, I disagree with the premise,</v>

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but again, here, there's no,

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the record before the motion judge didn't suggest

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there was some other person.

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<v ->Well, there are, there's the mother</v>

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and the other person living in the house.

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Arguably, she's authorizing

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or permitting them to allow the suffering, right?

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I mean, you could, there are, I mean, you're relying

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on the conduct of the mother and somebody else

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to prove the defendant's misconduct in this case.

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I'm not sure that's appropriate,

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but that's what you're doing in part,

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so there is some authorizing and permitting going on.

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<v ->Well, Your Honor, I would suggest-</v>

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<v ->Trying to help you here.</v>

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<v ->Thank you, Your Honor.</v>

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Here, I think the evidence is

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that the defendant was not in the house,

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that she had gone to work and had left the dog

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in the care of other family members.

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<v ->So is she permitting her family members</v>

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to allow the animal to suffer unnecessarily?

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<v ->Your Honor, I think that might be a stretch</v>

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to say that that's-

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<v ->If that's a stretch, you've got some problems</v>

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with Justice Dewar's question then,

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because those are the only people she's,

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00:12:42.960 --> 00:12:45.030
again, accepting her framework,

256
00:12:45.030 --> 00:12:50.030
those are the only people who are doing that, right?

257
00:12:51.150 --> 00:12:53.242
<v ->Well, Your Honor, I suggest that the defendant is</v>

258
00:12:53.242 --> 00:12:56.640
the person identified as the dog's owner

259
00:12:56.640 --> 00:12:59.217
and the person who is identified as making the shots.

260
00:12:59.217 --> 00:13:03.210
<v ->But Justice Dewar's framing this as this looks like,</v>

261
00:13:03.210 --> 00:13:06.060
the words used, because there's a legislative history

262
00:13:06.060 --> 00:13:09.300
saying this authorized and permits was used

263
00:13:09.300 --> 00:13:12.840
to expand the statute in other contexts, right?

264
00:13:12.840 --> 00:13:16.800
Because they don't want owners off the hook by subcontract,

265
00:13:16.800 --> 00:13:19.350
you know, giving their horse to somebody

266
00:13:19.350 --> 00:13:21.210
who then mistreats it.

267
00:13:21.210 --> 00:13:24.420
So there is some issue with that authorizing

268
00:13:24.420 --> 00:13:26.400
and permitting language being added

269
00:13:26.400 --> 00:13:29.070
to deal with third parties, correct?

270
00:13:29.070 --> 00:13:32.640
<v ->Yes, Your Honor, so perhaps again, under that reading,</v>

271
00:13:32.640 --> 00:13:35.730
where again I'm not accepting the premise,

272
00:13:35.730 --> 00:13:37.380
but if that is the premise,

273
00:13:37.380 --> 00:13:39.480
then yes, I accept that you could say

274
00:13:39.480 --> 00:13:43.530
that the family members were the actors in this situation.

275
00:13:43.530 --> 00:13:45.870
I would accept that.
<v ->Can I ask you to address</v>

276
00:13:45.870 --> 00:13:47.910
a different question, which is,

277
00:13:47.910 --> 00:13:49.800
or slightly different question?

278
00:13:49.800 --> 00:13:54.800
When the statute requires an owner to affirmatively provide

279
00:13:56.130 --> 00:14:01.130
care, shelter, food, it specifically says

280
00:14:02.310 --> 00:14:05.613
the owner who doesn't do these things,

281
00:14:06.510 --> 00:14:11.510
which is not palliative care, it specifically says food,

282
00:14:11.550 --> 00:14:13.590
drink, shelter, sanitary environment,

283
00:14:13.590 --> 00:14:15.600
or protection from the weather,

284
00:14:15.600 --> 00:14:18.600
those things are punishable as animal cruelty

285
00:14:18.600 --> 00:14:21.540
when the owner fails to provide those,

286
00:14:21.540 --> 00:14:25.770
but there is no similar act of omission

287
00:14:25.770 --> 00:14:28.320
with the final paragraph

288
00:14:28.320 --> 00:14:33.000
under which the Commonwealth seeks to proceed.

289
00:14:33.000 --> 00:14:36.030
Usually in statutory construction,

290
00:14:36.030 --> 00:14:38.760
the statement of one thing in one paragraph indicates

291
00:14:38.760 --> 00:14:42.240
not the thing in the other, and I'm wondering

292
00:14:42.240 --> 00:14:45.480
what the Commonwealth's response is to that.

293
00:14:45.480 --> 00:14:48.900
<v ->The Commonwealth's response to that is it's a separately,</v>

294
00:14:48.900 --> 00:14:51.930
a separate part of the statute, it's got separate language

295
00:14:51.930 --> 00:14:54.000
with the knowing and willful that doesn't apply

296
00:14:54.000 --> 00:14:57.180
to the other aspects about the food

297
00:14:57.180 --> 00:14:59.100
and the shelter and all of that.

298
00:14:59.100 --> 00:15:03.600
So it's got a more heightened mental state required,

299
00:15:03.600 --> 00:15:05.250
and then when you get to suffering again,

300
00:15:05.250 --> 00:15:07.080
that's something that can happen in-

301
00:15:07.080 --> 00:15:12.073
<v ->This is I board my dog at the horrible dog daycare,</v>

302
00:15:13.583 --> 00:15:17.640
and I know that they mistreat the animal.

303
00:15:17.640 --> 00:15:20.477
That's, I think, the scenario that we talked about.

304
00:15:20.477 --> 00:15:21.570
<v ->I think it would encompass that, Your Honor,</v>

305
00:15:21.570 --> 00:15:25.500
but I think it also encompasses what happened here,

306
00:15:25.500 --> 00:15:28.980
what was alleged in the application for complaint here.

307
00:15:28.980 --> 00:15:30.390
<v ->Counsel, I don't wanna lose you</v>

308
00:15:30.390 --> 00:15:32.850
before getting an answer to Justice Dewar's question,

309
00:15:32.850 --> 00:15:34.740
because I have the same issue,

310
00:15:34.740 --> 00:15:38.190
but I'm going to make it a little bit more focused.

311
00:15:38.190 --> 00:15:43.190
Can you be, can you construe this language to say

312
00:15:43.260 --> 00:15:48.260
that you are, by omission, you can subject someone to,

313
00:15:49.140 --> 00:15:52.620
by omission, not by doing something affirmative,

314
00:15:52.620 --> 00:15:57.620
that you're subjecting an animal to this by doing nothing?

315
00:15:59.880 --> 00:16:02.610
Can you meet that statutory definition

316
00:16:02.610 --> 00:16:05.820
in saying that you're subjecting an animal

317
00:16:05.820 --> 00:16:10.293
to a naturally occurring condition by doing nothing?

318
00:16:11.400 --> 00:16:13.170
<v ->Your Honor, I suggest here we can,</v>

319
00:16:13.170 --> 00:16:16.410
because while death is inevitable

320
00:16:16.410 --> 00:16:21.410
for all living creatures, suffering and pain is not,

321
00:16:22.680 --> 00:16:25.440
and so I suggest here that this animal had

322
00:16:25.440 --> 00:16:28.710
a prolonged, painful suffering

323
00:16:28.710 --> 00:16:32.700
that the defendant knowingly and willfully authorized

324
00:16:32.700 --> 00:16:34.470
and permitted the animal to be subjected to

325
00:16:34.470 --> 00:16:36.413
by not taking any-

326
00:16:36.413 --> 00:16:41.413
<v ->But what's significant, though, when the pure neglect,</v>

327
00:16:43.740 --> 00:16:47.310
when it's laid out in the statute, is described

328
00:16:47.310 --> 00:16:50.880
as food, shelter, et cetera,

329
00:16:50.880 --> 00:16:53.160
not the deprivation of medical care,

330
00:16:53.160 --> 00:16:56.610
which is really what happened here, correct?

331
00:16:56.610 --> 00:16:59.460
<v ->Well, Your Honor, I see one could argue it that way,</v>

332
00:16:59.460 --> 00:17:01.230
that it's a deprivation of medical care,

333
00:17:01.230 --> 00:17:03.477
or that it's permitting the suffering

334
00:17:03.477 --> 00:17:05.310
to continue for a prolonged amount of time.

335
00:17:05.310 --> 00:17:08.850
<v ->But then the problem is, under the statute,</v>

336
00:17:08.850 --> 00:17:10.560
the unnecessary suffering,

337
00:17:10.560 --> 00:17:14.190
which I think this animal endured, unfortunately,

338
00:17:14.190 --> 00:17:18.150
that comes in the subjected to portion of the statute,

339
00:17:18.150 --> 00:17:20.880
not the earlier portion of the statute.

340
00:17:20.880 --> 00:17:22.073
<v Atty. Cusick>Correct.</v>

341
00:17:24.750 --> 00:17:26.190
<v Justice Budd>Okay, thank you.</v>

342
00:17:26.190 --> 00:17:27.290
<v ->Thank you very much.</v>

343
00:17:30.647 --> 00:17:31.497
<v ->Attorney Bolio.</v>

344
00:17:34.470 --> 00:17:36.990
<v ->Morning, and may it please the court,</v>

345
00:17:36.990 --> 00:17:38.820
I represent Mary Ann Russo.

346
00:17:38.820 --> 00:17:41.320
Ms. Russo is present in the audience this morning.

347
00:17:47.160 --> 00:17:51.420
I believe this case presents a difficult factual scenario.

348
00:17:51.420 --> 00:17:53.640
It certainly did to Ms. Russo when she was confronted

349
00:17:53.640 --> 00:17:55.503
with this with her sick dog.

350
00:17:57.060 --> 00:17:59.820
<v ->The statute entails natural causes, right?</v>

351
00:17:59.820 --> 00:18:01.083
Natural suffering.

352
00:18:02.100 --> 00:18:04.020
<v ->I'm not sure it delineates anything,</v>

353
00:18:04.020 --> 00:18:05.490
whether it's natural or unnatural.

354
00:18:05.490 --> 00:18:10.490
<v ->Right, so if my dog steps in a hole</v>

355
00:18:11.700 --> 00:18:14.370
and breaks its leg, right?

356
00:18:14.370 --> 00:18:17.059
So it's not a deprivation of food, water, shelter,

357
00:18:17.059 --> 00:18:19.833
and I don't take my dog to the vet,

358
00:18:20.900 --> 00:18:22.890
have I caused unnecessary suffering?

359
00:18:22.890 --> 00:18:24.870
<v ->I'm not sure under the statute.</v>

360
00:18:24.870 --> 00:18:25.950
I mean, I certainly,

361
00:18:25.950 --> 00:18:27.197
my personal choice would be I would take my dog.

362
00:18:27.197 --> 00:18:28.830
<v Justice Gaziano>That's not criminal?</v>

363
00:18:28.830 --> 00:18:29.970
<v ->I would take my dog to the vet.</v>

364
00:18:29.970 --> 00:18:33.930
I think in that situation, I think it would matter

365
00:18:33.930 --> 00:18:34.930
what caused the dog to suffer.

366
00:18:34.930 --> 00:18:36.577
<v ->So if I'm completely indifferent, I say,</v>

367
00:18:36.577 --> 00:18:38.910
"Ah, he's having a bad day,"

368
00:18:38.910 --> 00:18:42.660
that's not cruel and that's not unnecessary suffering?

369
00:18:42.660 --> 00:18:43.890
That's not criminalized?

370
00:18:43.890 --> 00:18:46.080
<v ->So I guess it could be if you were aware</v>

371
00:18:46.080 --> 00:18:48.960
that your animal had a broken leg

372
00:18:48.960 --> 00:18:51.540
and you allowed the animal to languish at home

373
00:18:51.540 --> 00:18:53.370
with a broken leg and did nothing to treat it.

374
00:18:53.370 --> 00:18:56.010
<v ->Wouldn't that certainly satisfy knowing?</v>

375
00:18:56.010 --> 00:18:58.110
I don't know if it satisfies willful,

376
00:18:58.110 --> 00:19:02.010
but it certainly would, if the dog steps in a hole

377
00:19:02.010 --> 00:19:04.770
and breaks its leg and is howling nonstop

378
00:19:04.770 --> 00:19:07.800
and in pain, which dogs do.

379
00:19:07.800 --> 00:19:08.633
<v Atty. Bolio>Yes.</v>

380
00:19:08.633 --> 00:19:11.040
<v ->You know that dog's suffering,</v>

381
00:19:11.040 --> 00:19:15.240
and you're knowingly allowing that dog

382
00:19:15.240 --> 00:19:17.250
to be subjected to suffering.

383
00:19:17.250 --> 00:19:18.900
I don't know if you're willfully doing it,

384
00:19:18.900 --> 00:19:21.930
'cause that's a whole nother question,

385
00:19:21.930 --> 00:19:24.540
but you're certainly knowingly allowing that dog

386
00:19:24.540 --> 00:19:26.550
to suffer if that's the case, right?

387
00:19:26.550 --> 00:19:27.480
<v ->I think, I certainly think</v>

388
00:19:27.480 --> 00:19:29.130
that that argument could be made.

389
00:19:30.630 --> 00:19:31.463
I agree with you, Your Honor.

390
00:19:31.463 --> 00:19:32.640
<v ->Let's go further,</v>

391
00:19:32.640 --> 00:19:34.320
not that it's just an argument, right?

392
00:19:34.320 --> 00:19:37.410
That's knowingly allowing your dog to suffer, isn't it?

393
00:19:37.410 --> 00:19:38.310
<v Atty. Bolio>Yes.</v>

394
00:19:38.310 --> 00:19:41.550
<v ->Okay, so how is that different?</v>

395
00:19:41.550 --> 00:19:42.870
Again let's leave willful aside.

396
00:19:42.870 --> 00:19:46.710
How is that different when you know your dog is

397
00:19:46.710 --> 00:19:51.710
in terrible pain at this stage of this illness?

398
00:19:54.000 --> 00:19:56.673
Now, she takes the dog to the vet, I get that,

399
00:19:58.893 --> 00:20:01.500
but if she hadn't taken the dog to the vet,

400
00:20:01.500 --> 00:20:03.500
that would be knowingly allowing the dog

401
00:20:05.100 --> 00:20:08.760
to continue to suffer too, wouldn't it to be subject?

402
00:20:08.760 --> 00:20:09.780
<v ->I'm not sure that it would.</v>

403
00:20:09.780 --> 00:20:11.130
<v ->Really, why not?</v>

404
00:20:11.130 --> 00:20:13.110
<v ->It was because it's not an unnecessary,</v>

405
00:20:13.110 --> 00:20:14.400
he's not suffering unnecessarily.

406
00:20:14.400 --> 00:20:16.110
He's dying a natural death.

407
00:20:16.110 --> 00:20:18.837
<v ->Well, but well, the vet clearly gave</v>

408
00:20:18.837 --> 00:20:23.837
a different alternative that would ease the,

409
00:20:23.970 --> 00:20:25.890
end the dog's suffering, correct?

410
00:20:25.890 --> 00:20:26.723
<v Atty. Bolio>Absolutely.</v>

411
00:20:26.723 --> 00:20:30.990
<v ->And we have your client at least deceiving the vet</v>

412
00:20:30.990 --> 00:20:32.433
on two occasions, correct?

413
00:20:33.300 --> 00:20:34.133
<v ->I'm sorry, Your Honor?</v>

414
00:20:34.133 --> 00:20:35.010
<v Justice Gaziano>Being deceptive.</v>

415
00:20:35.010 --> 00:20:36.600
<v ->I would suggest no.</v>

416
00:20:36.600 --> 00:20:38.010
<v ->Well, viewed in the light most favorable</v>

417
00:20:38.010 --> 00:20:38.850
to the Commonwealth,

418
00:20:38.850 --> 00:20:40.430
of course you wouldn't suggest that, but yes.

419
00:20:40.430 --> 00:20:42.262
<v ->In the light most favorable to the Commonwealth,</v>

420
00:20:42.262 --> 00:20:44.250
I believe the evidence suggests

421
00:20:44.250 --> 00:20:45.720
that my client presented the animal

422
00:20:45.720 --> 00:20:47.250
to the vet twice within three weeks,

423
00:20:47.250 --> 00:20:49.350
once on Christmas day, another,

424
00:20:49.350 --> 00:20:50.187
I believe it was January 12th,

425
00:20:50.187 --> 00:20:53.550
and this was an emergency veterinary hospital.

426
00:20:53.550 --> 00:20:55.770
I don't think that my client was doing anything to secret.

427
00:20:55.770 --> 00:20:58.650
<v ->Well, she said that I'm gonna take the dog</v>

428
00:20:58.650 --> 00:21:01.380
to be euthanized to another vet.

429
00:21:01.380 --> 00:21:02.460
That wasn't true, right?

430
00:21:02.460 --> 00:21:04.701
<v ->For a second opinion, I'm gonna take the dog</v>

431
00:21:04.701 --> 00:21:06.030
for a second opinion.

432
00:21:06.030 --> 00:21:07.799
<v Justice Gaziano>To be euthanized.</v>

433
00:21:07.799 --> 00:21:09.450
<v ->I believe it's for a second opinion.</v>

434
00:21:09.450 --> 00:21:10.288
<v ->But either way,</v>

435
00:21:10.288 --> 00:21:11.378
and we're just talking about probable cause, right?

436
00:21:11.378 --> 00:21:12.211
<v Atty. Bolio>Yes, Your Honor.</v>

437
00:21:12.211 --> 00:21:14.310
<v ->I mean, these seem to be trial issues.</v>

438
00:21:14.310 --> 00:21:15.143
<v Atty. Bolio>Yes, Your Honor.</v>

439
00:21:15.143 --> 00:21:17.658
<v ->It does, and that Justice Gaziano</v>

440
00:21:17.658 --> 00:21:19.020
and Justice Wendlandt's point is the thing

441
00:21:19.020 --> 00:21:20.610
that I would like to focus on,

442
00:21:20.610 --> 00:21:23.340
because this is in the light most favorable

443
00:21:23.340 --> 00:21:27.870
to the Commonwealth, so for probable cause,

444
00:21:27.870 --> 00:21:32.870
I'm still wondering how the motion judge could allow

445
00:21:34.470 --> 00:21:37.557
a motion to dismiss with the factual,

446
00:21:37.557 --> 00:21:41.370
at least the alleged factual chronology here

447
00:21:41.370 --> 00:21:44.640
of going in December, saying have the surgery,

448
00:21:44.640 --> 00:21:49.200
I'm not gonna have the surgery, come back a few weeks later,

449
00:21:49.200 --> 00:21:51.877
the dog now has deteriorated and say,

450
00:21:51.877 --> 00:21:54.937
"Now I want the surgery," and the vet says,

451
00:21:54.937 --> 00:21:58.260
"I'm not gonna do the surgery, the dog won't survive."

452
00:21:58.260 --> 00:22:02.070
You've got all of these indications

453
00:22:02.070 --> 00:22:06.060
that this dog is in absolute distress

454
00:22:06.060 --> 00:22:11.060
in the application for the complaint,

455
00:22:11.730 --> 00:22:15.180
and then you have the stuff about,

456
00:22:15.180 --> 00:22:17.310
I'm gonna go to another vet,

457
00:22:17.310 --> 00:22:19.200
I'm not gonna go to another vet,

458
00:22:19.200 --> 00:22:20.280
they don't go to another vet.

459
00:22:20.280 --> 00:22:22.470
We've got all of this stuff

460
00:22:22.470 --> 00:22:25.830
in the application underlying the complaint,

461
00:22:25.830 --> 00:22:30.330
and in the light most favorable to the Commonwealth,

462
00:22:30.330 --> 00:22:32.250
how is this dismissed?

463
00:22:32.250 --> 00:22:33.930
<v ->I mean, I would suggest in the light most favorable</v>

464
00:22:33.930 --> 00:22:36.060
to the Commonwealth that the statute doesn't call

465
00:22:36.060 --> 00:22:39.600
for involuntary euthanasia, that she didn't commit any-

466
00:22:39.600 --> 00:22:41.910
<v ->We can leave aside the euthanasia part.</v>

467
00:22:41.910 --> 00:22:46.170
About just the part about also getting treatment again.

468
00:22:46.170 --> 00:22:50.730
So even though there might be the language

469
00:22:50.730 --> 00:22:54.240
from the vet about there's nothing really further I can do,

470
00:22:54.240 --> 00:22:57.270
the issue about whether that's really true,

471
00:22:57.270 --> 00:22:59.520
in the light most favorable to the Commonwealth,

472
00:22:59.520 --> 00:23:03.030
there is indication in the underlying documents

473
00:23:03.030 --> 00:23:07.620
that something, that they got something for this dog, right?

474
00:23:07.620 --> 00:23:12.620
That was in the stuff that underlied the application, right?

475
00:23:13.650 --> 00:23:14.483
<v Atty. Bolio>Excuse me, Your Honor?</v>

476
00:23:14.483 --> 00:23:18.840
<v ->That somewhere along the lines, there was some medication,</v>

477
00:23:18.840 --> 00:23:22.770
some sort of treatment that some-

478
00:23:22.770 --> 00:23:24.060
<v ->I believe the application suggests</v>

479
00:23:24.060 --> 00:23:25.860
that my client noticed a mass

480
00:23:25.860 --> 00:23:27.630
on the side of her dog on Christmas Day,

481
00:23:27.630 --> 00:23:29.010
she thought that it was uncomfortable,

482
00:23:29.010 --> 00:23:31.290
and she presented the dog based upon that.

483
00:23:31.290 --> 00:23:34.500
The application doesn't contain evidence of this, but-

484
00:23:34.500 --> 00:23:39.500
<v ->Don't you lose unless willfully means that she,</v>

485
00:23:40.170 --> 00:23:42.870
'cause there's no, I don't, I think I understand

486
00:23:42.870 --> 00:23:45.390
how you win this motion to dismiss

487
00:23:45.390 --> 00:23:48.900
if she is required to intend the suffering,

488
00:23:48.900 --> 00:23:50.940
'cause there's no indication in this record

489
00:23:50.940 --> 00:23:53.820
that she wants this dog to suffer, I don't think.

490
00:23:53.820 --> 00:23:54.653
<v Atty. Bolio>Yes, Your Honor.</v>

491
00:23:54.653 --> 00:23:58.440
<v ->But if that's not what the statute requires,</v>

492
00:23:58.440 --> 00:24:02.430
probable cause is certainly here for all the reasons

493
00:24:02.430 --> 00:24:05.490
that Justice Georges just pointed out.

494
00:24:05.490 --> 00:24:09.840
But don't you need us to interpret willful

495
00:24:09.840 --> 00:24:13.080
to mean that she has to intend the suffering,

496
00:24:13.080 --> 00:24:15.843
and that's what the statute requires?

497
00:24:15.843 --> 00:24:18.090
<v Atty. Bolio>I'm not sure.</v>

498
00:24:18.090 --> 00:24:19.890
<v ->But the statute, to justice,</v>

499
00:24:19.890 --> 00:24:22.650
it says subjected to unnecessary.

500
00:24:22.650 --> 00:24:24.240
<v Atty. Bolio>Yes.</v>
<v ->Willfully, willfully,</v>

501
00:24:24.240 --> 00:24:28.470
willfully subjecting the animal to unnecessary suffering.

502
00:24:28.470 --> 00:24:31.770
It's not just that she's subject, she subjected the dog

503
00:24:31.770 --> 00:24:35.010
to unnecessary suffering or least suffering.

504
00:24:35.010 --> 00:24:37.917
<v ->Respectfully, I'm not sure that she did.</v>

505
00:24:37.917 --> 00:24:39.210
<v ->There's terrible pain.</v>

506
00:24:39.210 --> 00:24:43.847
She's told by the vet that the dog is in super pain, right?

507
00:24:44.760 --> 00:24:46.980
And she doesn't want to euthanize the dog,

508
00:24:46.980 --> 00:24:49.260
nor does she leave with pain medicine.

509
00:24:49.260 --> 00:24:50.970
<v ->She wasn't prescribed any pain medication</v>

510
00:24:50.970 --> 00:24:52.890
and she wasn't given any supplemental oxygen,

511
00:24:52.890 --> 00:24:54.210
with all due respect, Judge.

512
00:24:54.210 --> 00:24:57.753
<v ->But if she knows the dog's in super pain,</v>

513
00:25:00.000 --> 00:25:03.090
and the vet is telling her to euthanize,

514
00:25:03.090 --> 00:25:04.710
I understand she doesn't have to euthanize,

515
00:25:04.710 --> 00:25:07.650
but doesn't she have to address the pain?

516
00:25:07.650 --> 00:25:09.360
<v ->At that point, because the vet said,</v>

517
00:25:09.360 --> 00:25:11.550
I'm not sure that she knew that there was anything

518
00:25:11.550 --> 00:25:12.990
that could be done to control the pain,

519
00:25:12.990 --> 00:25:14.310
because the vet said the only thing

520
00:25:14.310 --> 00:25:16.590
that could be done to control the pain is euthanasia.

521
00:25:16.590 --> 00:25:20.010
<v ->No, that, yeah, that may be, but again,</v>

522
00:25:20.010 --> 00:25:21.720
this is in the light most favorable

523
00:25:21.720 --> 00:25:25.500
to the Commonwealth, and this is a probable cause.

524
00:25:25.500 --> 00:25:27.000
<v ->Understood, and in the light most favorable</v>

525
00:25:27.000 --> 00:25:29.070
to the Commonwealth, I would suggest the physical condition

526
00:25:29.070 --> 00:25:31.110
of the animal and the condition

527
00:25:31.110 --> 00:25:32.790
in which the animal was found would suggest

528
00:25:32.790 --> 00:25:34.590
that there's no evidence of abuse,

529
00:25:34.590 --> 00:25:36.516
that everything was being done to provide palliative care.

530
00:25:36.516 --> 00:25:38.643
<v ->Come on, please.</v>

531
00:25:39.600 --> 00:25:42.330
There's no evidence that this was the right way

532
00:25:42.330 --> 00:25:43.620
of dealing with this dog.

533
00:25:43.620 --> 00:25:44.940
<v ->I'm not saying that it's the right way</v>

534
00:25:44.940 --> 00:25:45.773
of dealing with the dog,

535
00:25:45.773 --> 00:25:47.160
and I'm not saying that if it was my dog

536
00:25:47.160 --> 00:25:49.320
that I may have put the dog to sleep,

537
00:25:49.320 --> 00:25:51.126
but what I'm suggesting is that there's no evidence

538
00:25:51.126 --> 00:25:54.390
that she intentionally and actively abused this animal.

539
00:25:54.390 --> 00:25:55.320
She loved the animal.

540
00:25:55.320 --> 00:25:57.780
<v ->There's no intent, there's no evidence possibly</v>

541
00:25:57.780 --> 00:25:59.553
that she intended the suffering.

542
00:26:01.020 --> 00:26:03.810
I get that she wants the dog to live

543
00:26:03.810 --> 00:26:06.240
and she doesn't want the dog to suffer,

544
00:26:06.240 --> 00:26:11.240
but the dog is suffering, then that's different.

545
00:26:11.567 --> 00:26:12.400
<v ->And in terms of the,</v>

546
00:26:12.400 --> 00:26:15.903
and I understand Your Honor's point, it's well taken.

547
00:26:17.130 --> 00:26:21.090
With regards to the dog's suffering,

548
00:26:21.090 --> 00:26:22.110
there was nothing that could be done

549
00:26:22.110 --> 00:26:23.980
to control that suffering,

550
00:26:23.980 --> 00:26:26.160
<v ->Well, that seems like a trial issue, right?</v>

551
00:26:26.160 --> 00:26:28.290
I mean, on that, you'd probably lose.

552
00:26:28.290 --> 00:26:30.269
Isn't your best argument that nobody

553
00:26:30.269 --> 00:26:34.060
other than natural causes is subjecting

554
00:26:35.520 --> 00:26:36.990
the dog to that suffering?

555
00:26:36.990 --> 00:26:38.490
<v ->Yes, yes, it is, Your Honor.</v>

556
00:26:38.490 --> 00:26:39.640
It is my best argument.

557
00:26:41.821 --> 00:26:44.795
<v ->Even if evidence in the application</v>

558
00:26:44.795 --> 00:26:47.943
that there is something that could have been done?

559
00:26:48.810 --> 00:26:50.463
<v ->If there's something that could, I'm sorry, Your Honor?</v>

560
00:26:50.463 --> 00:26:55.463
<v ->That there's something that Ms. Russo could have done</v>

561
00:26:56.220 --> 00:26:58.560
short of euthanasia?

562
00:26:58.560 --> 00:27:03.150
Because the chronology is you can have surgery,

563
00:27:03.150 --> 00:27:05.790
and she says, "I don't want the surgery,"

564
00:27:05.790 --> 00:27:09.607
and then three weeks later comes back and says,

565
00:27:09.607 --> 00:27:12.937
"I want the surgery now," and the vet says,

566
00:27:12.937 --> 00:27:14.940
"I'm not gonna do the surgery now."

567
00:27:14.940 --> 00:27:18.150
So again, this is in the underlying support

568
00:27:18.150 --> 00:27:21.510
for the complaint, and in the light most favorable

569
00:27:21.510 --> 00:27:26.070
to the Commonwealth, drawing all reasonable inferences.

570
00:27:26.070 --> 00:27:26.903
<v Atty. Bolio>Yes, Your Honor.</v>

571
00:27:26.903 --> 00:27:30.210
<v ->In their favor, this doesn't get over probable cause?</v>

572
00:27:30.210 --> 00:27:31.380
<v Atty. Bolio>I don't think that it does.</v>

573
00:27:31.380 --> 00:27:32.213
<v Justice Georges>Okay.</v>

574
00:27:32.213 --> 00:27:33.930
<v ->Because there's no evidence of any sort</v>

575
00:27:33.930 --> 00:27:37.353
of suffering that my client subjected the animal to.

576
00:27:38.700 --> 00:27:41.280
She was in a no win situation, a situation

577
00:27:41.280 --> 00:27:44.010
that I think all of us that are blessed

578
00:27:44.010 --> 00:27:45.930
to own pets are faced with.

579
00:27:45.930 --> 00:27:48.450
<v ->By the way, just that formulation you just said,</v>

580
00:27:48.450 --> 00:27:53.232
there's no evidence that the dog was subjected to suffering.

581
00:27:53.232 --> 00:27:54.420
<v Atty. Bolio>Yes.</v>

582
00:27:54.420 --> 00:27:59.420
<v ->But the dog is, the absence of medical care</v>

583
00:28:00.030 --> 00:28:02.850
or the absence of medicine

584
00:28:02.850 --> 00:28:06.513
or painkillers is subjecting that dog,

585
00:28:09.140 --> 00:28:10.710
that dog is suffering, right?

586
00:28:10.710 --> 00:28:14.610
I mean, again, I don't know if she's willfully doing that,

587
00:28:14.610 --> 00:28:16.470
but the dog is suffering.

588
00:28:16.470 --> 00:28:17.820
I find the appeals court,

589
00:28:17.820 --> 00:28:21.360
subjected to, I don't know what that means.

590
00:28:21.360 --> 00:28:23.340
What does that mean?

591
00:28:23.340 --> 00:28:26.430
<v ->I would suggest caused or permitted</v>

592
00:28:26.430 --> 00:28:27.660
or allowed to be caused.

593
00:28:27.660 --> 00:28:30.870
<v ->Well, subjected to, the appeals court says is passive.</v>

594
00:28:30.870 --> 00:28:35.403
So it's just they're requiring it not be medical.

595
00:28:37.388 --> 00:28:38.880
I don't know.

596
00:28:38.880 --> 00:28:41.520
<v ->I would suggest, Your Honor, that when faced</v>

597
00:28:41.520 --> 00:28:43.230
with the situation, there was nothing else,

598
00:28:43.230 --> 00:28:45.150
you know, that she could have done.

599
00:28:45.150 --> 00:28:47.550
She was giving the dog palliative care.

600
00:28:47.550 --> 00:28:49.170
The dog was in a clean diaper.

601
00:28:49.170 --> 00:28:53.160
<v ->Don't we need to believe that's a factual?</v>

602
00:28:53.160 --> 00:28:56.617
I understand that the mother or the brother says,

603
00:28:56.617 --> 00:28:59.520
"Here are the pain meds," right?

604
00:28:59.520 --> 00:29:02.553
When they go to the house, right?

605
00:29:03.390 --> 00:29:06.790
Do know if that, isn't that a factual issue

606
00:29:08.640 --> 00:29:11.010
whether that's true or not?

607
00:29:11.010 --> 00:29:13.006
<v Atty. Bolio>Whether those were in fact pain medications?</v>

608
00:29:13.006 --> 00:29:17.970
<v ->Whether they're telling the truth, whether that's,</v>

609
00:29:17.970 --> 00:29:19.440
even if there were pain medicine,

610
00:29:19.440 --> 00:29:23.040
were they giving that to the dog, was it in any way help?

611
00:29:23.040 --> 00:29:25.320
Is it recognized pain medicine

612
00:29:25.320 --> 00:29:28.470
that a vet would consider palliative care

613
00:29:28.470 --> 00:29:30.900
as opposed to who knows what this stuff is?

614
00:29:30.900 --> 00:29:32.640
We don't know anything about it, right?

615
00:29:32.640 --> 00:29:35.430
<v ->Right, and I would suggest that there was no investigation</v>

616
00:29:35.430 --> 00:29:37.530
that was conducted by the Commonwealth investigating

617
00:29:37.530 --> 00:29:39.060
and asked who prescribed these pills,

618
00:29:39.060 --> 00:29:40.500
whether or not they saw a veterinarian

619
00:29:40.500 --> 00:29:41.700
or anything of the like.

620
00:29:43.110 --> 00:29:45.750
I would say that that is certainly relevant to this,

621
00:29:45.750 --> 00:29:47.160
but there's no evidence to suggest

622
00:29:47.160 --> 00:29:49.560
that the dog wasn't being given pain medication.

623
00:29:49.560 --> 00:29:51.630
There's some statements of my client's elderly mother,

624
00:29:51.630 --> 00:29:55.323
she's in her mid 80s, that said, the dog, I believe,

625
00:29:55.323 --> 00:29:58.350
that the dog doesn't need these pain pills anymore,

626
00:29:58.350 --> 00:30:00.930
but I think you can take that for what it's worth.

627
00:30:00.930 --> 00:30:02.760
That doesn't mean that my client hasn't been giving the dog

628
00:30:02.760 --> 00:30:04.560
pain medication for three weeks,

629
00:30:04.560 --> 00:30:06.460
or that the dog hasn't been cared for.

630
00:30:09.450 --> 00:30:11.760
I would suggest that the evidence suggests the otherwise,

631
00:30:11.760 --> 00:30:13.920
that the dog was loved, the dog was cared for.

632
00:30:13.920 --> 00:30:15.270
They were providing palliative care.

633
00:30:15.270 --> 00:30:18.330
They were trying to keep the animal healthy,

634
00:30:18.330 --> 00:30:21.330
or sorry, strike that, comfortable in its dying days.

635
00:30:21.330 --> 00:30:24.120
And I would suggest that there's no probable cause

636
00:30:24.120 --> 00:30:25.470
to believe she violated the statute,

637
00:30:25.470 --> 00:30:26.815
and if there's no other question-

638
00:30:26.815 --> 00:30:29.490
<v ->Can I ask you to address the legislative history a bit?</v>

639
00:30:29.490 --> 00:30:31.650
'Cause it seems like the prior version

640
00:30:31.650 --> 00:30:36.650
of this same statute said something to the effect

641
00:30:37.080 --> 00:30:40.830
of if an owner knowingly and willfully authorizes

642
00:30:40.830 --> 00:30:44.070
or permits the dog to be subjected to

643
00:30:44.070 --> 00:30:49.070
or to suffer unnecessary torture or cruelty,

644
00:30:49.350 --> 00:30:54.350
and that language was changed to the current version.

645
00:30:55.020 --> 00:30:59.820
How does that affect our analysis about whether

646
00:30:59.820 --> 00:31:03.780
or not this new third paragraph requires

647
00:31:03.780 --> 00:31:06.810
affirmative actions by the owner

648
00:31:06.810 --> 00:31:10.623
to prevent pain in a dog?

649
00:31:11.580 --> 00:31:14.205
<v ->That's subjected to, I'm sorry, I missed the question.</v>

650
00:31:14.205 --> 00:31:16.950
<v ->Yeah, it used to be, the statute used to say</v>

651
00:31:16.950 --> 00:31:21.950
to be subjected to or to suffer, and no longer says that.

652
00:31:23.040 --> 00:31:26.250
Now it just says to be subjected to suffering.

653
00:31:26.250 --> 00:31:29.700
Is there anything about that change

654
00:31:29.700 --> 00:31:31.053
that affects our analysis?

655
00:31:32.280 --> 00:31:34.260
<v ->Well, I mean, I would just cite</v>

656
00:31:34.260 --> 00:31:38.310
the appeals court's reasoning that the appeals court wrote

657
00:31:38.310 --> 00:31:40.023
that the passive construction-

658
00:31:40.890 --> 00:31:42.030
<v ->But it used to have both.</v>

659
00:31:42.030 --> 00:31:44.130
It used to have the passive construction

660
00:31:44.130 --> 00:31:46.770
and also allowing and permitting to suffer.

661
00:31:46.770 --> 00:31:48.330
<v ->Yes, Your Honor.</v>

662
00:31:48.330 --> 00:31:49.440
I would stand behind that,

663
00:31:49.440 --> 00:31:52.710
the appeals court's evaluation of it.

664
00:31:52.710 --> 00:31:56.340
They wrote that the passive of construction stands

665
00:31:56.340 --> 00:31:58.660
in stark contrast to the act of construction

666
00:32:01.020 --> 00:32:03.330
as to the active voice of the other verbs in the statute,

667
00:32:03.330 --> 00:32:04.980
and it goes on to write, unlike those verbs,

668
00:32:04.980 --> 00:32:08.253
subjected to identifies no actor, and there must be one.

669
00:32:09.090 --> 00:32:10.170
So I would suggest to the court

670
00:32:10.170 --> 00:32:13.380
that the appeals court's reading of the statute,

671
00:32:13.380 --> 00:32:15.136
that there must be an actor that's subjected

672
00:32:15.136 --> 00:32:17.511
the animal to the harm at issue.

673
00:32:17.511 --> 00:32:19.590
I believe that that would be relevant

674
00:32:19.590 --> 00:32:20.423
to this court's determination.

675
00:32:20.423 --> 00:32:22.740
<v ->But the way you're cons, that's the problem that I have,</v>

676
00:32:22.740 --> 00:32:27.390
is that's giving a nexus to the action,

677
00:32:27.390 --> 00:32:31.590
but it says unnecessary suffering.

678
00:32:31.590 --> 00:32:34.170
So it's not necessarily that there's an actor

679
00:32:34.170 --> 00:32:37.680
that causes it, but back to the original question

680
00:32:37.680 --> 00:32:40.263
from Justice Dewar, by omission,

681
00:32:42.270 --> 00:32:44.100
can't you violate the statute,

682
00:32:44.100 --> 00:32:48.060
or at least for probable cause, by doing nothing

683
00:32:48.060 --> 00:32:51.840
and allowing whatever suffering you didn't cause

684
00:32:51.840 --> 00:32:54.780
to unnecessarily be prolonged?

685
00:32:54.780 --> 00:32:58.800
Can't you do that under this framework?

686
00:32:58.800 --> 00:33:01.920
<v ->I would say that you can't, not with an animal</v>

687
00:33:01.920 --> 00:33:04.271
that's dying a natural life, not with an animal

688
00:33:04.271 --> 00:33:07.980
whose condition that you've played no part in causing.

689
00:33:07.980 --> 00:33:09.333
I would say that you can't.

690
00:33:11.280 --> 00:33:12.870
If there are no other questions, I'll rest on my brief.

691
00:33:12.870 --> 00:33:13.953
Thank you very much.