February 2, 2015

Clerk of the Court

Supreme Court ofthe United States
1 First Street, NE
Washington, DC 20543
RE:

GINA LYNN TURCOTTE v. HUMANE SOCIETY WATERVILLE AREA

Petition for Writ of Certiorari

Enclosed you will find 11 copies of my Petition for a Writ of Certiorari

and Motion to Proceed In Forma Pauperis with attached Affidavit in Support of
the Motion to Proceed In Forma Pauperis stapled to the original (top) copy of the
Petition and a Certificate of Service showing proper service was made on
Respondents.
One copy has been mailed via first class prepaid postal mail to
Respondent on this day.
I believe this petition is being filed within proper time limits.
Thank you.

I~
GinA (f/k/a Gina Turcotte)
2528 West .River Road
Sidney, Maine 04330
207-333-0628
peacivist@peacivist. org

cc:

Bryan B. Ward, Esq.

Attorney for Humane Society Waterville Area

No. _____________
IN THE

Supreme Court of the United States

-----------------------------------------------------------------GINA TURCOTTE
(now known only as GinA)
Petitioner
v.
HUMANE SOCIETY WATERVILLE AREA
Respondent
----------------------------------------------------------------On Petition for Writ of Certiorari
to the Maine Supreme Judicial Court
___________________________________________
PETITION FOR WRIT OF CERTIORARI
___________________________________________
GINA TURCOTTE
(now known only as GinA)
Petitioner
2528 WEST RIVER ROAD
SIDNEY, MAINE 04330
207-333-0628
peacivist@peacivist.org

QUESTION PRESENTED FOR REVIEW

1.

Whether licensed humane societies and animal shelters are a public agency
for purposes of public records requests when they have written contracts to
perform animal welfare law enforcement duties in conjunction with and on
behalf of the state, local municipalities and police departments, if its shelter
services are government services and its facilities public accommodations
for purposes of Titles II and III of the Americans with Disabilities Act, and if
its Animal Control Officers and other personnel are state actors for
purposes of 42 U.S. Code 1983?

PARTIES TO THE PROCEEDING

The caption contains the names of all parties to this proceeding in the Maine
Supreme Judicial Court whose judgment is sought to be reviewed.

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ............................................................. i

PARTIES TO THE PROCEEDING ....................................................................... ii
TABLE OF AUTHORITIES ................................................................................. iv
PETITION FOR A WRIT OF CERTIORARI ......................................................... 1
OPINIONS BELOW ............................................................................................... 2
STATEMENT OF JURISDICTION ....................................................................... 3
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............... 4
STATEMENT OF THE CASE .............................................................................. 5
REASONS FOR GRANTING THE PETITION ................................................... 15
1. There is an unsettled area of law with a split between state courts
regarding the publics right to access public records detailing
humane societies law enforcement activities, animal welfare
activities and their financial records.
a. A governmental agency cannot delegate its responsibilities to a
private foundation to avoid public records disclosure laws.
2. Maine Supreme Judicial Court departed from accepted and usual
course of judicial proceedings in this 12(b)(6) dismissal action by
dismissing with prejudice after the movant failed to defend their
motion which calls for Supreme Court review.
APPENDIX A ........................................................................................................ 33
APPENDIX B ........................................................................................................ 37
APPENDIX C ........................................................................................................ 38
APPENDIX D........................................................................................................ 55
APPENDIX E ........................................................................................................ 78

iii

TABLE OF AUTHORITIES
CONSTITUTIONAL PROVISIONS
United States Constitution, Article IV, Section 2 .................................................. 31, 1
United States Constitution, Article VI ................................................................... 31, 1
United States Constitution, Amendment I ....................................................... 29, 30, 1
United States Constitution, Amendment IV .................................................... 29, 30, 1
United States Constitution, Amendment V...................................................... 29, 30, 1
United States Constitution, Amendment VII ................................................... 29, 30, 1
United States Constitution, Amendment IVX ................................................. 29, 30, 1
Maine Constitution ...................................................................................................... 14

STATUTES
7 U.S. Code 2131 ....................................................................................................... 23
7 U.S. Code 2131 - Congressional statement of policy .............................................. 2
7 U.S. Code 2158 Protection of Pets ........................................................................ 2
28 U.S. Code 1257(a) ................................................................................................... 3
42 U.S. Code 12131 ............................................................................................... 23, 6
42 U.S. Code 12181 ............................................................................................... 24, 6
42 U.S. Code 1983 ............................................................................................. passim
42 U.S. Code 5651 ..................................................................................................... 26
42 U.S. Code 5652 ..................................................................................................... 26
1 MRSA 400................................................................................................................. 9
1 MRSA 408-A ............................................................................................................. 9
1 MRSA 402(3) ............................................................................................................ 6
5 MRSA 4553............................................................................................................. 24
5 MRSA 4553(8) .......................................................................................................... 7
7 MRSA 3919-A ..................................................................................................... 7, 22
7 MRSA 3919-A(5) .................................................................................................... 31
7 MRSA 3919-A Procedure for acceptance and disposition of cats by animal shelter ...... 8
iv

7 MRSA 3932-A Animal shelters........................................................................ 22, 10

7 MRSA 3936 Inspection and quarantine .......................................................... 22, 11
7 MRSA 3947 Animal control officers ................................................................ 22, 12
7 MRSA 3948 Animal control ............................................................................. 22, 13
7 MRSA 3949 Animal shelter designation ......................................................... 22, 14
7 MRSA 3950-A Official refusal or neglect of duty ............................................ 22, 14
7 MRSA 4019 Removal from unattended motor vehicle ................................... 22, 15
7 MRSA 4041 Animal trespass ........................................................................... 22, 16
14 MRSA 7071........................................................................................................... 13
14 MRSA 7071(2) ........................................................................................................ 8
17 MRSA 1021........................................................................................................... 22
17 MRSA 2931..................................................................................................... 13, 14
17 MRSA 1025. Handling of animals seized or held ............................................... 22
17 MRSA 1011. Definitions ................................................................................ 22, 19
17 MRSA 1023. Investigation and reporting of cruelty ..................................... 22, 21
22 MRSA 1313........................................................................................................... 22
22 MRSA 1313-B ....................................................................................................... 22
22 MRSA 3474........................................................................................................... 22
29-A MRSA 2054 ....................................................................................................... 22
33 MRSA 1052. Taking Up Stray Beasts; Notice ...................................................... 6
Americans with Disabilities Act............................................................................ 13, 14
Human Rights Act ....................................................................................................... 13
Maine Human Rights Act ............................................................................................ 14

RULES
FRCivP 8(b)(6) ................................................................................................. 10, 11, 30
Maine Rules of Judicial Conduct ................................................................................ 14
Maine Rules of Professional Conduct ......................................................................... 14
MRCivP 8(d) ..................................................................................................... 10, 11, 30
v

OTHER AUTHORITIES
4 Am. Jur. 2d, Animals 27 ........................................................................................ 12
Blacks Law, 9th Edition............................................................................................... 24
Certificate of Change of Name ...................................................................................... 5
HSWA 990 Schedule A for 2012 .................................................................................. 12
Imperative Judicial Notice .......................................................................................... 10
Humane Society letter ................................................................................................. 10
Google map ..................................................................................................................... 7
Memorandum in Opposition to Defendants Motion to Dismiss ................................ 13
Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted ......... 10

ordered ......................................................................................................................... 10
Public notice on craigslist.org ....................................................................................... 5

CASES
Am. Cargo Transp. v. Natsios, 429 F.Supp.2d 139, 145 (D.D.C. 2006) ..................... 28
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d
202 (1986) ................................................................................................................. 28
AUGDC-SA-2013-237 .................................................................................................. 13
AUGSC-CV-2013-226 .............................................................................................. 9, 13
Barr. v. Clinton, 361 U.S.App. D.C. 472, 475, 370 F.3d 1196, 1199 .......................... 11
Bayer v. United States Dep't of Treasury, 294 U.S.App. D.C. 44, 47, 956 F.2d 330,
333 (D.C.Cir.1992).................................................................................................... 28
Brunette v. Humane Society of Ventura County, 294 F. 3d 1205 - Court of Appeals,
9th Circuit 2002........................................................................................................ 25
Burton v. Wilmington Parking Authority, 365 US 715 .............................................. 21
Champagne v. Humane Society, 737 P. 2d 1279 ........................................................ 27
Clarke v. TCAC & Control Shelter, 181 P. 3d 881 ................................................ 16, 18
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) ............ 11
vi

Connecticut Humane Society v. Freedom of Information Commission et al. 218 Conn.

757 (1991) ........................................................................................................... 15, 20
Connecticut Humane Society V. Freedom Of Information Commission Et Al. 218
Conn. 757 (1991)....................................................................................................... 13
Daskalea v. Washington Humane Society, 480 F. Supp. 2d 16 - Dist. Court, Dist. of
Columbia 2007 ................................................................................................... 28, 31
Dow v. Caribou Chamber of Commerce and Indus., 2005 ME 113 ...................... 16, 29
EEOC v. St. Francis Xavier Parochial Sch., 326 U.S.App. D.C. 67, 70, 117 F.3d 621,
624 (D.C.Cir.1997).................................................................................................... 11
First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253 .................................... 28
Great N. Paper, Inc. v. Penobscot Nation, 2001 ME 68 .............................................. 28
Hall v. Board of Envtl. Protection, 498 A.2d 260, 266 (Me.1985) .............................. 28
Hallas v. Freedom of Information Commission, 18 Conn. App. 291, 294, 557 A.2d
568 (1989) ................................................................................................................. 15
Hazward, 14 F.Supp.2d at 122 ................................................................................... 28
In re Austin T., 2006 ME 28 ........................................................................................ 11
In re Wage Payment Litig., 2000 ME 162 ................................................................... 28
Jackson v. Metropolitan Edison Co., 419 US 345....................................................... 21
Johnson v. Long Beach Mortg. Loan Trust 2001-4, 451 F.Supp.2d 16, 27
(D.D.C.2006) ............................................................................................................. 11
Larrabee v. Penobscot Frozen Foods, Inc., 486 A.2d 97, 98 (Me.1984) ...................... 27
Lindsey v. United States, 448 F.Supp.2d 37, 44 (D.D.C.2006) .................................. 11
Livonia v. Town of Rome, 1998 ME 39 ....................................................................... 27
McAfee v. Cole, 637 A.2d 463, 465 (Me.1994).............................................................. 27
Memorial Hospital-West Volusia, Inc. v. News-Journal Corp., 729 So.2d 373, 381
(Fla. 1999)................................................................................................................. 19
News and SunSentinel Co. v. Schwab, Twitty & Hanser Architectural Group, Inc.,
596 So.2d 1029 (Fla.1992) ....................................................................................... 17
News and SunSentinel Co. v. Schwab, Twitty & Hanser Architectural Groups, Inc.,
596 So.2d 1029, 1031 (Fla.1992) ............................................................................. 18
vii

Putnam County Humane Soc., Inc. v. Woodward, 740 So. 2d 1238 .................... 17, 18
Ramsey v. Baxter Title Co., 2012 ME 113 ................................................................... 11
Rendell-Baker v. Kohn, 457 US 830 ............................................................................ 30
Richards v. Soucy, 610 A.2d 268, 270 (Me.1992) ........................................................ 27
Runkle v. Gonzales, 391 F.Supp.2d 210, 220 (D.D.C.2005) ....................................... 11
State ex rel. State Humane Soc'y v. Hovey, 159 Wash. 584 ........................................ 27
Storey v. Seattle, 124 Wash. 598.................................................................................. 27
Town of Burlington v. Hosp. Admin. Dist. No. 1, 2001 ME 59 ...................... 16, 28, 29
Turcotte v. Humane Society Waterville Area, 2014 ME 123................................. 15, 20
TURCOTTE v. PASCO, AUGDC-SA-2013-237 ............................................................ 8

viii

PETITION FOR A WRIT OF CERTIORARI

Gina Turcotte (now known only as GinA) respectfully petitions for a writ of
certiorari to review the judgment of the Maine Supreme Judicial Court.

OPINIONS BELOW
The reported en banc opinion in KEN-14-52 of the Maine Supreme Judicial
Court located at 2014 ME 123, affirming the dismissal with prejudice by Kennebec
County Superior Court is reproduced in Appendix A. The Order of Kennebec County
Superior Court IN AUGSC-CV-2013-226 granting Humane Society Waterville
Areas 12(b)(6) Motion to Dismiss is reproduced in Appendix B. Complaint for
Recovery of Personal Property and Affidavit in Support from the companion case
AUGDC-SA-2013-237 in Augusta District Court is reproduced in Appendix C.

STATEMENT OF JURISDICTION
On January 20, 2014 the Kennebec County Superior Court entered an Order
of Dismissal with prejudice in favor of Humane Society Waterville Area; the
decision of the Maine Supreme Judicial Court was filed on November 4, 2014;
therefore, the jurisdiction of this Court is properly invoked under 28 U.S. Code
1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The pertinent constitutional and statutory provisions are reprinted in the
Appendix E to this brief.

STATEMENT OF THE CASE

This controversy took its first breath on September 18, 2012 when Petitioner
Gina Turcotte (now known only as GinA) (See Attached Certificate of Change of
Name in Appendix D) called the Waterville Maine Police Department and was
instructed to call the Humane Society Waterville Area for help to recover her
service animal from the backyard of the Budget Host Hotel on Kennedy Memorial
Drive in Waterville after being illegally evicted the previous day and threatened
with arrest by the hotel manager, Patel Umesh, because Petitioner refused to
produce certification or documentation that her cat, Smokey, was a service animal
when she attempted to pay for a 4th day at the hotel.
When GinA called the Humane Society Waterville Area on September 18,
2012 to report her missing service animal and ask for help to locate him, the
Humane Society employee expressly indicated she was making a report of the
information GinA was providing and would make immediate contact with GinA if
anyone brought her cat to their shelter.
GinA called the Humane Society every day for the next several days asking if
the cat had been surrendered to their care. Each time GinA was told no.
On September 22, GinA gave the employee a website address to a public
notice on craigslist.org (See Appendix D) with pictures of the cat and other
identifying information which GinA asked the Humane Society employee to
download, print and include in their shelter records. GinA expressly asked the
employee to take copies of the photographs which were posted on the website so
they would have pictures for reference when cats were brought to their shelter. The
employee indicated they would fully comply with GinAs requests, they understood
the cat was a service animal, and that GinA was not surrendering her legal title or
right to possess her cat at any time to anybody for any reason.
These pivotal material facts have never been denied by the Humane Society.
On September 22 GinA liked and started following updates to the Humane
Societys Facebook page hoping her cats photograph would be publicly posted when
5

the cat was brought into the shelter in compliance with 33 MRSA 1052. Taking
Up Stray Beasts; Notice which requires, without any exceptions,
Whoever takes up a stray beast shall, within 7 days, give notice thereof
in writing, containing a description of its color and its natural and artificial
marks, to the clerk of the town where such beast is taken, and shall cause a
notice thereof, containing a like description of the beast, to be posted, and if
such beast is of the value of $10 or more, to be published in the manner
provided in section 1051; otherwise he shall not be entitled to compensation for
any expenses which he may incur relative thereto.
Humane Societys private website1 and Facebook page never displayed any
public notifications whatsoever that GinAs cat had been brought to the facility until
January 4, 2013. On that day at 4:38pm, Humane Society took a photograph of
GinAs cat and published it on Facebook with the caption, Shamoo has been
adopted!2 GinA saw the photograph and made her first comment3 three hours later
at 7:48pm (See Appendix D), stating,
I think this is my cat Smokey who was lost in Waterville earlier this
year. I have not stopped looking for him and have checked your adoption page
many times and have not seen his picture out there; as a matter of fact I just
looked for him again the other day. I will be calling your office to ask about
getting my cat back since I did call your office when he first went missing and
gave you all his information and a link to the craigslist post with his picture
looking for him... if this is Smokey I will want to get him back immediately as
he is a service animal and very much missed.
GinA called the Humane Society on January 5, 2013 at 9am when their
phone opened at which time she spoke at length with the receptionist about their
lack of contact with GinA at which time GinA was first told about the missing
records identifying GinAs cat prior to his surrender which GinA eventually learned

http://www.hswa.org

https://www.facebook.com/HumaneSocietyWatervilleArea/photos/a.10152375845930293.939159.1733
66630292/10152378476015293/?type=3&theater
3 Humane Society Waterville Area has since deleted GinAs comments and GinA has been blocked
from posting any further comments on her cats photograph which is photo #5 in Humane Society
Waterville Areas Facebook photo album for January 2013 titled January 2013 Happy Tails
https://www.facebook.com/media/set/?set=a.10152375845930293.939159.173366630292&type=3 .

was November 12, 2012 by Linda Andrews. (NOTE: In order to show the cat did
not leave the property without any intention of returning to the hotel, it is
very important to note that GinAs cat stayed within a 1-mile radius of the
hotel (Sep 17 Nov 12, 2012) where GinA and her cat were separated for 55
days until the cat was found by a resident of a neighborhood 1-mile away
and brought to the humane society. If the humane society or the police
department had quickly set have-a-heart traps near the hotel, there is a
high likelihood that GinAs cat would have been immediately returned to
her possession as GinA requested.) (See Appendix D for map)
GinA was told the Director would return her call when she arrived at 10am.
When GinA spoke with the Humane Society director, Andrea Pasco4, at 10am5 Ms.
Pasco said GinA no longer had any legal claim to the cat because the cat did not
have a microchip, that the Humane Society had no further legal obligations to GinA
or her cat, and the Humane Society would not help GinA get her cat back. Ms. Pasco
offered no explanations for the missing records which GinA initiated on September
18 when she made her first report of her missing animal or of any follow-up
telephone calls GinA made in the ensuing days, weeks and months in search of her
cat.
GinA immediately engaged in certain legal strategies to gain access to the
Humane Societys records and the name of the people who currently possess the cat.
Gina first filed a request for an investigation with the State of Maine Office of
Attorney General Consumer Protection Division on January 7, 2013 requesting an
official investigation into the Humane Societys unfair and deceptive trade practices
with an explicit sole request for the immediate return of her service animal. The
Attorney Generals office declined to assist citing 7 MRSA 3919-A.

Andrea Pasco was publicly fired by the Humane Society Waterville Area shortly after GinA filed
her first lawsuit in Augusta District Court for Recovery of Personal Property which named Andrea
Pasco personally, as well as the President and Vice President of the Board of Directors.
5 This phone call was electronically recorded under Maines one-party law and is published on
YouTube https://www.youtube.com/watch?v=frN8K6yXMmQ in a video compiled from photos and
audio recordings with government officials and other people during GinAs efforts to recover
possession of her service animal.
4

GinA then filed her first court complaint on April 24, 2013 in Augusta
District Court, TURCOTTE v. PASCO, AUGDC-SA-2013-237, for Recovery of
Personal Property under 14 MRSA 7071(2), which the court eventually dismissed
without prejudice but specifically maintaining GinAs constitutional claims after
holding a hearing because the Humane Society Waterville Area no longer had
physical possession of the cat which nullified the applicability of 7071 to those
instant circumstances.
During a recorded public hearing on June 26, 2013 in Augusta District Court,
Bryan B. Ward, Esq., attorney for the Humane Society, stated, ...if the court was to
order the humane society to release the names [of John/Jane Doe] we have no
choice. Its not privileged under the law
The judge replied, if the humane society were a defendant today, I would
order them to disclose
Before the judge dismissed the case, GinA stated for the record,
I never surrendered nor abandoned my animal. I have also
another audio on the day that I lost my animal when I was fighting with
the hotel owner who evicted me illegally because of my service animal.
He wanted to charge me a pet fee and I told him you cant do it it's a
service animal he says you've got an hour and a half to leave or ill call
the police. I had to leave. My cat was outside going to the bathroom. I
couldn't get him back in time. I went to an abutting property to try to get
him back. I couldn't get him back. I went back to the property several
times I made several attempts to retrieve him. I've had him since 2008.
Humane society regardless of the reason they possessed it regardless of
the way they came into possession of him for any length of time had no
legal title to sell him to anybody regardless of the possessor's innocence
or not. The possessor's innocence is of no factor in this case at all. The
factor is did the humane society and or its individuals have any kind of
legal title to transfer that possession to to anybody else for any amount of
money whatsoever. The answer is no. Because I did not surrender my
animal under the bona fide purchaser doctrine. I did not abandon him.
As a matter of fact, quite the contrary I told them specifically on Sept.18
that my animal was a service animal he was very much missed I have
several reports I have several um um um four people who have helped
me look for him I called the humane society I don't know how many
times which I am fully prepared to subpoena their phone records to
prove it. The fact that they did not take the report is the problem that
8

started this whole mess. They didn't take the report. Whoever didn't do
it, didn't do it. And that's why we're here now.6
On August 20, 2013 a proper request for public records pursuant to 1 MRSA
400 et seq. Freedom of Access Act was sent to the Humane Society Waterville Area
requesting specific information about GinAs cat with a particular request for the
names and contact information of the people who purchased the cat from the
Humane Society on January 4, 2013. The Humane Society failed to respond to the
FOAA request in any way, in violation of 1 MRSA 408-A(4),
Refusals; denials. If a body or an agency or official having custody or
control of any public record refuses permission to inspect or copy or abstract a
public record, the body or agency or official shall provide written notice of the
denial, stating the reason for the denial, within 5 working days of the receipt
of the request for inspection or copying. Failure to comply with this subsection
is considered failure to allow inspection or copying and is subject to appeal as
provided in section 409.
On September 18, 2013, a Complaint for Injunctive Relief was filed in
Kennebec County Superior Court with Case No. AUGSC-CV-2013-226 pursuant to 1
MRSA 408-A. On November 26, 2013 GinA sent the Summons and Complaint for
service to the Kennebec County Sheriffs Office which was completed in hand to
Kathleen Ross7 on December 2, 2013 at the Humane Societys office at 100 Webb
Road, Waterville. The original summons and complaint was mailed to the Kennebec
County Superior Court on December 11, 2013 for scheduling of a proper hearing.

This written transcript was derived from a private recording which was taken by GinA during the
public recorded hearing on June 26, 2013 and transcribed at home. GinA did not order an official
transcript from the court because she did not appeal the district courts dismissal of the 7071 action
on the limited grounds stated by the judge.
7 Kathleen Ross replaced Andrea Pasco in August 2013, as published in the Kennebec Journal
newspaper, here: http://www.centralmaine.com/2013/08/20/waterville-humane-society-looks-aheadunder-new-president-director/ On April 24, 2014 the Kennebec Journal published another article
titled, Ringworm outbreak closes Waterville shelter which announced Kathleen Ross termination
earlier in April 2014 by the Board of Directors, Earlier this month the Board of Directors decided not
to renew the contract of interim director Kathleen Ross. Townsend said that the board and Ross, who
was previously a board member, had disagreements about her responsibilities as executive director.
http://www.centralmaine.com/2014/04/24/ringworm_outbreak_closes_waterville_animal_shelter_/
6

On December 13, 2013 the Humane Society through Bryan B. Ward filed a
Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted
(See Appendix D) under MRCivP 12(b)(6) and GinA filed a timely Memorandum in
Opposition to Defendants Motion to Dismiss on December 30, 2013.
On January 20, 2014 Kennebec County Superior Court Judge Michaela
Murphy ordered Humane Societys Motion to Dismiss without hearing under
MRCivP 12(b)(6) with prejudice stating, Case is dismissed with prejudice. The
Humane Society Waterville Area is not subject to 1 M.R.S.A. Section 400 et seq.
On January 29, 2014, GinA filed her Notice of Appeal to the Maine Supreme
Judicial Court and her Appellate Brief was filed on April 13, 2014 and sent to the
Humane Societys attorney for reply.
On May 27, 2014 Bryan B Ward, Esq. sent a basic letter to GinA and Maine
Supreme Judicial Court alleging the Humane Societys financial disability to defend
this action and the Humane Societys notice that they would not be filing any reply
brief or participating in any oral arguments scheduled by the court.
GinA filed a timely response letter and an Imperative Judicial Notice
indicating the Humane Societys failure to reply under MRCivP 8(d) and FRCivP
8(b)(6) was their legal admission to all claims made in GinAs complaint and that
the court must therefore rule in Appellants favor.
Despite overwhelming evidence in support of GinAs claims that the Humane
Society is in fact claiming to be, and in fact are, a publicly supported organization
subject to public records requests, the Maine Supreme Judicial Court ignored the
standard of review for 12(b)(6) motions and the legal effect Appellees failure to
respond under MRCivP 8(d) and FRCivP 8(b)(6) has on the case and affirmed the
Superior Courts dismissal with prejudice setting precedent that will effectively bar
every individual nationwide from gaining access to public records maintained by the
Humane Society Waterville Area and any other humane society and animal shelter
operating under Maine laws.
Maine Supreme Judicial Court decided this case en banc arguing the merits
of GinAs claims instead of adhering to established precedent on 12(b)(6) motions
10

that require the court to "view the complaint in the light most favorable to the
plaintiff to determine whether it sets forth elements of a cause of action or alleges
facts that would entitle the plaintiff to relief pursuant to some legal theory," Ramsey
v. Baxter Title Co., 2012 ME 113, 6, 54 A.3d 710 and "we take the material
allegations of [the] complaint as though they were admitted. "In re Austin T., 2006
ME 28, 6, 898 A.2d 946.
When adjudicating a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), the Court must view all the allegations and
facts in the complaint in the light most favorable to the plaintiffs, and it must grant
the plaintiffs the benefit of all inferences that can be derived from those facts."
Lindsey v. United States, 448 F.Supp.2d 37, 44 (D.D.C.2006) (citing Barr. v. Clinton,
361 U.S.App. D.C. 472, 475, 370 F.3d 1196, 1199 (D.C.Cir.2004)). "The court is
limited to considering facts alleged in the complaint, any documents attached to or
incorporated in the complaint, matters of which the court may take judicial notice,
and matters of public record." Johnson v. Long Beach Mortg. Loan Trust 2001-4, 451
F.Supp.2d 16, 27 (D.D.C.2006) (citing EEOC v. St. Francis Xavier Parochial Sch.,
326 U.S.App. D.C. 67, 70, 117 F.3d 621, 624 (D.C.Cir.1997)) (other citation omitted).
"[A] complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim
which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted). "The complaint need only set forth a
short and plain statement of the claim, giving the defendant fair notice of the claim
and the grounds upon which it rests." Runkle v. Gonzales, 391 F.Supp.2d 210, 220
(D.D.C.2005) (citations omitted).
In reply to GinAs well-plead and well-supported Appellate Brief, the
Humane Society expressly plead poverty and failed in their legal duty under
MRCivP 8(d) and FRCivP 8(b)(6) to adequately rebut the abundant evidence GinA
obtained through public records internet searches proving beyond a shadow of a
doubt the Humane Society is knowingly acting in the capacity with all the
privileges and powers of a public agency and are redeeming all pertinent tax credits
11

from the Internal Revenue Service on their IRS 990 Schedules (see Appendix D for
HSWA 990 Schedule A for 2012) on which they have unfailingly claimed the
Humane Society Waterville Area
is not a private foundation because it is...An organization which
receives a substantial part of its support from a governmental unit or the
general public described in section 170(b)(1)(A)(vi).
Appellee consistently reports "the organization qualifies as a publicly
supported organization" because it receives 33 1/3 % or more of its support
from a government unit or the general public.
Additionally, the record shows unchallenged proof of Appellee's state
sanctioned authority by way of written contract with political and municipal
subdivisions to engage in state-sanctioned activities, namely statutorily
required police enforcement of animal welfare laws, seizure, control and care
of special private property for private corporate commercial purposes while
never affording the public any due process of law, inter alia,
"Because law enforcement is traditionally a function of the government,
the society performs a governmental function to the extent that it
engages in the law enforcement activities authorized by statute. See
General Statutes 29-108b and 29-108c. Because legislation designed
to protect animals from cruelty and neglect is recognized as a valid
exercise of the police power; 4 Am. Jur. 2d, Animals 27; arguably, the
society also performs a governmental function insofar as it engages in
the statutorily authorized activities involving the detention, shelter and
euthanasia of animals. See General Statutes 29-108e, 29-108g. ...
Moreover, the state still plays a predominant role in preventing the
cruel and inhuman treatment of animals. See, e.g., General Statutes
22-272a (approved methods of slaughter), 22-329 (prevention of
cruelty to dogs and other animals), 22-332a (restrictions on use of
dogs for medical research), 22-336 (maintenance of dog pounds), 22342 (b) (inspection of kennels), 22-415 (prevention of cruel and
inhuman treatment of equines). Local police, dog wardens and the
department of agriculture routinely use the society to investigate
complaints of animal abuse and neglect. The society issues warnings
and refers continuing instances of animal cruelty and neglect to the
office of the state's attorney. The office of the state's attorney and the
police rely upon the society to hold detained animals and to provide
expertise upon request." Connecticut Humane Society V. Freedom Of
Information Commission Et Al. 218 Conn. 757 (1991). (Ap. Brief, Pg
13, 2)
12

GinA first raised questions of federal and constitutional law in her initial
complaint in the district court companion case AUGDC-SA-2013-237 and during the
hearing stating violations of the Human Rights Act and Americans with Disabilities
Act, inter alia.
GinA also raised the federal question of her right to constitutional due
process, inter alia, on page four of her Memorandum in Opposition to Defendants
Motion to Dismiss in Kennebec County Superior Court, AUGSC-CV-2013-226 where
she claimed the Humane Societys failure to maintain proper records and give GinA
access to current records is effectively preventing GinA from reuniting with her cat,
regardless if its a service animal or a pet, without due process or equal protection of
the laws, inter alia.
The judge in Augusta District Court in AUGDC-SA-2013-237 said,
I wont be acting on those [constitutional] claims in a way that
extinguishes your rightif you file a different kind of case
allegingsome other legal causes of action that you hadat least
raised the human rights actthose causes of action may be maintained,
I dont know how far you will get with them but they may be
maintained. Today we will only be dealing with the cause of action
under 14 MRSA 7071
Both Kennebec County Superior Court Judge Michaela Murphy and the
Maine Supreme Judicial Court sitting en banc failed to acknowledge any of GinAs
constitutional claims and never afforded GinA or her cat any special consideration
under the Americans with Disabilities Act.
GinA reiterated her constitutional and federal claims in her Appellate Brief
to the Maine Supreme Judicial Court on page 13, 4, page 30, 3, and page 31, 2
and 3 citing the Humane Societys and J. Murphys outrageous violations of 42
U.S. Code 1983 and 17 MRSA 2931, specifically from Page 31 2 and 3,
J. Murphys prejudicial rulings against Appellant despite clear
evidence with statutory support in Appellants favor, in this case and
other unrelated cases, individually and collectively rise to the level of
13

malicious, willful interference with Appellants right to equal protection

under the law and right to due process, inter alia, which is actionable
under 42 U.S. Code 1983 and 17 MRSA 2931.
Michaela Murphy has knowingly violated the Maine
Constitution, Maine Rules of Professional Conduct, Maine Rules of
Judicial Conduct, Title 17 Maine Revised Statutes 2931 and 42 USC
1983 when she intentionally used abusive discretion and knowingly
and arbitrarily dismissed Appellants Complaint knowing the subject
property is a therapeutic device thereby violating Appellants human
rights as protected by the Maine Human Rights Act as well as the
Americans with Disabilities Act, inter alia
In their seven-page en banc decision, the Maine Supreme Judicial
Court closed their judgment by unanimously determining,
Our review of the four factors leads us to conclude that,
although HSWA performs a function that both benefits the public and
assists municipalities in fulfilling their statutory obligation to arrange
for shelter services to be provided for the area, it is not a public agency
subject to the requirements of FOAA. Even accepting all of the factual
allegations in the complaint as true, Turcotte has not stated a claim
that entitles her to relief on her claim to compel HSWA to provide access
to its records. The entry is: Judgment affirmed.
The Maine Supreme Judicial Court did not fully investigate Maine and
federal laws to determine the full extent of governmental regulation of the humane
societys law enforcement services, the Humane Societys authority to seize and put
animals to death on behalf of government agencies, and how those elite powers are
balanced by constitutional protections which forbid seizing private property without
the right to a trial by jury, due process and equal protection of the laws, inter alia.

14

REASONS FOR GRANTING THE PETITION

1. There is an unsettled area of law with a split between state courts
regarding the publics right to access public records detailing
humane societies law enforcement activities, animal welfare
activities and their financial records.
A. A governmental agency cannot delegate its responsibilities to a private
foundation to avoid public records disclosure laws.
i. In Connecticut Humane Society v. Freedom of Information
Commission et al. 218 Conn. 757 (1991) Supreme Court of
Connecticut decided,
In determining whether an entity is the functional equivalent of a
public agency, we consider the following criteria: "(1) whether the entity
performs a governmental function; (2) the level of government funding; (3) the
extent of government involvement or regulation; and (4) whether the entity was
created by the government."[3] Id., 554; see also Hallas v. Freedom of
Information Commission, 18 Conn. App. 291, 294, 557 A.2d 568 (1989).
The court concluded that the Connecticut Humane Society was not a
public agency because Although the society cooperates with the state in its
efforts to prevent cruel and inhuman treatment of animals, there is nothing in
the record to indicate that the state in any way controls or regulates the
society The society is not required to perform any of the activities authorized
by statute. Furthermore, performance of the activities is not subject to
governmental review. The society is self-directed and its employees are not
government employees Balancing all the applicable factors, we conclude
that, in light of the evidence, the trial court properly concluded that the society
is not a public agency.
ii. In the case upon which this petition is based, Turcotte v.
Humane Society Waterville Area, 2014 ME 123, the Maine
Supreme Judicial Court decided,
15

When evaluating whether an entity qualifies as a public agency

or political subdivision for purposes of FOAA, we look to the function
that the entity performs. Dow v. Caribou Chamber of Commerce and
Indus., 2005 ME 113, 12, 884 A.2d 667. We consider four factors in
conducting this analysis: "(1) whether the entity is performing a
governmental function; (2) whether the funding of the entity is
governmental; (3) the extent of governmental involvement or control;
and (4) whether the entity was created by private or legislative action."
Id. (quoting Town of Burlington v. Hosp. Admin. Dist. No. 1, 2001 ME
59, 16, 769 A.2d 857).
The court concluded, Our review of the four factors leads us to
conclude that, although HSWA performs a function that both benefits
the public and assists municipalities in fulfilling their statutory
obligation to arrange for shelter services to be provided for the area, it is
not a public agency subject to the requirements of FOAA. Even
accepting all of the factual allegations in the complaint as true,
Turcotte has not stated a claim that entitles her to relief on her claim to
compel HSWA to provide her access to its records.
iii. In Clarke v. TCAC & Control Shelter, 181 P. 3d 881, Division
3 of the Court of Appeals of Washington decided,
The court in Telford adopted a four-factor "functional
equivalent" balancing test to determine if an entity is to be regarded as
a public agency for purposes of the PDA: (1) whether the entity performs
a governmental function; (2) the level of government funding; (3) the
extent of government involvement or regulation; and (4) whether the
entity was created by the government. Id. at 162, 974 P.2d 886. Under
Telford, each of these criteria need not be equally satisfied, but rather
the criteria on balance should suggest that the entity in question is the
functional equivalent of a state or local agency. Id.
16

The court concluded, On balance, we conclude TCAC is the

functional equivalent of a public agency. While TCAC has some nonpublic functions and characteristics, the fact that it performs a
governmental function dependent upon its relationship with the local
government, receives the bulk of its funding from taxpayer money to
perform that function, and is subject to regular government oversight,
all tip the scale in favor of finding that TCAC is the functional
equivalent of a public agency.
iv. In Putnam County Humane Soc., Inc. v. Woodward, 740 So.
2d 1238, the Florida District Court of Appeals for the Fifth
District decided,
The Society argues that the definition of agency under section
119.011(2)[1], Florida Statutes (1997) does not include the society
because the application of the factors in News and SunSentinel Co. v.
Schwab, Twitty & Hanser Architectural Group, Inc., 596 So.2d 1029
(Fla.1992), excludes it. The Schwab factors include but are not limited
to: (1) level of public funding; (2) comingling of funds; (3) whether the
activity was conducted on publicly owned property; (4) whether the
services contracted for are an integral part of the public agency's chosen
decision making process; (5) whether the private entity is performing a
governmental function or a function which the public agency otherwise
would perform; (6) the extent of the public agency's involvement with,
regulation of or control over the private entity; (7) whether the private
entity was created by the public agency; (8) whether the public agency
has a substantial financial interest in the private entity; and (9) for
whose benefit the private entity is functioning.
The court concluded, In the instant case, the provisions of
sections 828.03 and 828.073[2] authorize the Society, but do not compel
it, to perform the governmental function. We conclude that this
17

difference is immaterial once the Society assumed the authority under

the enabling statutes. The Society does not dispute that it exercised its
investigative power, and its right to remove animals, under the
authority of the statute.
Where the Society has used its statutory authority to investigate
acts of animal abuse and has used this authority, further, to seize
animals, it has acted as an agent of the state. The investigation of a
criminal act pursuant to authority to do so granted by the legislature is
the performance of a public function. To hold that the Public Records
Act is not applicable to this type of investigation would improperly
result in the avoidance of disclosure through a delegation "to a private
entity that which otherwise would be an agency responsibility." News
and SunSentinel Co. v. Schwab, Twitty & Hanser Architectural
Groups, Inc., 596 So.2d 1029, 1031 (Fla.1992).
Despite the two-to-two split in the cases cited above, the courts agreed on
four elements upon which each of the cases were decided:
(1) whether the entity performs a governmental function;
(2) the level of government funding;
(3) the extent of government involvement or regulation; and
(4) whether the entity was created by the government.
As the courts noted in Clarke,
Under Telford, each of these criteria need not be equally
satisfied, but rather the criteria on balance should suggest that the
entity in question is the functional equivalent of a state or local
agency and in Putnam, The Schwab court ... noted that agency has
been defined broadly in the statute to ensure that a public agency
cannot avoid disclosure under the act by contractually delegating to a
private entity that which otherwise would be an agency responsibility.
18

596 So.2d at 1031. Were we to hold that the Salvation Army is not
acting on behalf of Marion County, this public policy would be
circumvented. Accordingly, we find that all records which would be
public if the county were providing the probation services are also
public when the Salvation Army performs that task.
Id. at 503. The supreme court, in Memorial Hospital-West
Volusia, Inc. v. News-Journal Corp., 729 So.2d 373, 381 (Fla. 1999),
agreed with this court's reasoning in Stanfield. The supreme court
wrote:
We ... agree with the Fifth District in this case in noting the
distinction between providing materials or services to a public body to
facilitate a public body's own performance of its public function and an
agreement under which a private actor performed the public function in
place of the public body. When the agreement transfers the actual public
function, public access follows, as was correctly determined by the Fifth
District in its more recent decision in Stanfield v. Salvation Army ... in
which the district court held that public access was required for a
private entity that completely assumed a governmental obligation in its
contract with a county government to provide probationary services.
The only substantial difference between the instant case and
Stanfield is that in Stanfield, the Salvation Army contractually
obligated itself to perform governmental services which otherwise would
have had to be performed by Marion County. In the instant case, the
provisions of sections 828.03 and 828.073[2] authorize the Society, but
do not compel it, to perform the governmental function. We conclude
that this difference is immaterial once the Society assumed the
authority under the enabling statutes.
In the matter recently decided by the Maine Supreme Judicial Court which is
the subject of this petition, the court said the pivotal factor in Maine is if the
19

humane societys employees are authorized by statute to take actions such as

enforcing animal welfare laws and confiscating abused or neglected animals
although the court clearly affirmed the humane society is contractually obligated to
provide food, shelter, and medical services to stray animals, which benefits each of
the municipalities HSWA serves. See Turcotte, 2014 ME 123
The courts do not require that an entity conform to all factors, but that the
factors be considered and weighed. Conn. Humane Soc'y, 591 A.2d at 397; Telford,
974 P.2d at 894. Town of Burlington v. Hosp. Admin. Dist., 769 A. 2d 857
It is of no legal consequence that shelter employees are not explicitly
authorized by statute to take actions such as enforcing animal welfare laws and
confiscating abused or neglected animals because once a law enforcement or animal
control officer seizes an animal under protections of the Fourth, Fifth, Seventh and
Fourteenth Amendments and delivers it to a humane society for housing and care,
all employees are contractually and statutorily required to care for and protect the
animal in the same manner and up to equal standards as the public official who
seized the animal would be.
Humane society employees are explicitly required to follow all local rules,
state statutes, and federal regulations without exceptions regarding basic level of
medical care, shelter conditions, containment of infectious diseases, public notice
requirements, record-keeping standards, euthanasia guidelines, maintenance of
medical devices and pharmaceutical narcotics all which carry governmental
permission and licensing requirements, one of which is the humane societies legal
duty to maintain proper records of all animal sales for a period of two years,
7 MRSA 3914. Purchase and sale of animals, Animal shelters, kennels,
breeding kennels, boarding kennels and pet shops engaged in buying or selling
animals shall keep records of the buyer and seller in each transaction for a 2-year
period commencing at the time of purchase or sale. The records must be open to
inspection by the department or law enforcement officers
Additionally, once a state agent places animals seized under the Fourteenth
Amendment with an animal shelter for boarding, medical care and adoption or
20

euthanasia purposes, the shelter has intentionally and contractually placed itself in
the role of a government facility under the symbiotic relationship doctrine.
no State may effectively abdicate its responsibilities by either ignoring them
or by merely failing to discharge them whatever the motive may be. It is of no
consolation to an individual denied the equal protection of the laws that it was done
in good faith. Certainly the conclusions drawn in similar cases by the various Courts
of Appeals do not depend upon such a distinction. By its inaction, the Authority, and
through it the State, has not only made itself a party to the refusal of service, but has
elected to place its power, property and prestige behind the admitted discrimination.
The State has so far insinuated itself into a position of interdependence with Eagle
that it must be recognized as a joint participant in the challenged activity, which, on
that account, cannot be considered to have been so purely private as to fall without
the scope of the Fourteenth Amendment Burton v. Wilmington Parking
Authority, 365 US 715 - Supreme Court 1961
the inquiry must be whether there is a sufficiently close nexus between the
State and the challenged action of the regulated entity so that the action of the latter
may be fairly treated as that of the State itself. Moose Lodge No. 107, supra, at 176.
The true nature of the State's involvement may not be immediately obvious, and
detailed inquiry may be required in order to determine whether the test is met.
Burton v. Wilmington Parking Authority, supra. Jackson v. Metropolitan Edison
Co., 419 US 345 - Supreme Court 1974
The Maine court failed to make a detailed inquiry into the numerous state
laws, rules and regulations regarding the privileges, powers, and duties of animal
control officers, affiliated humane societies and their interdependence with state
and local government activities which effectively creates a symbiotic relationship
and which has a direct bearing on the outcome of this instant case.
Listed below are only seventeen section titles of numerous applicable Maine
Revised Statutes specifying the authorities, duties, or privileges of animal control
officers and humane societies in Maine which are reproduced verbatim in relevant
part in Appendix E:
21

1.

7 MRSA 3919-A Procedure for acceptance and disposition of cats by animal

shelter

2.

7 MRSA 3932-A Animal shelters

3.

7 MRSA 3936 Inspection and quarantine

4.

7 MRSA 3947 Animal control officers

5.

7 MRSA 3948 Animal control

6.

7 MRSA 3949 Animal shelter designation

7.

7 MRSA 3950-A Official refusal or neglect of duty

8.

7 MRSA 4019 Removal from unattended motor vehicle

9.

7 MRSA 4041 Animal trespass

10.

17 MRSA 1011 Definitions

11.

17 MRSA 1021 Possession of animals

12.

17 MRSA 1023 Investigation and reporting of cruelty

13.

17 MRSA 1025 Handling of animals seized or held

14.

22 MRSA 3474. Records; Confidentiality, Disclosure

15.

22 MRSA 1313 Procedures for the Transportation, Quarantine,

Euthanasia and Testing of Animals Suspected of Having Rabies

16.

22 MRSA 1313-B Civil Violation, Court Authorization for Removal and

Other Remedies

17.

29-A MRSA 2054 Emergency and Auxiliary Lights; Sirens; Privileges

As published on the Augusta Maine Police Departments official website8,

within the boundaries of and for the municipality of Augusta Maine, all animal
control and animal law enforcement duties are contracted to Francois Roodman who
is the Animal Control Officer for the Augusta Police Department; accordingly, all
8The

Animal Control Division is responsible for the enforcement of ordinances and state laws
pertaining to animals, primarily domestic. These include licensing and vaccination requirements as
well as Investigating reports or complaints involving animals; take appropriate action; investigate
reports of animal abuse, investigate animal bite reports, prepare rabies specimens as necessary;
educating citizens in the neighborhood.
http://www.augustamaine.gov/index.asp?Type=B_BASIC&SEC=%7B3D85517B-4BA1-47B0-80C8491D45625A4C%7D&DE=%7B14F7335E-34A8-4568-91C5-B9A7A4D43EEF%7D

22

animal control activities within Augusta occur under the provisions of 42 U.S. Code
1983 because all animal control activities are performed either by Ofc. Francois
Roodman in his official capacity or by another government agent acting as an
alternate animal control officer for the Augusta Police Department.
The Maine legislature has given animal control officers similar power as law
enforcement officers, District Attorneys, social service officers, and medical
professionals, all who must be properly trained, licensed, regulated and maintain
continuing education activities to maintain proper licenses.
In Maine, animal control officers are given special privileges, powers, and
duties which are only afforded to government actors or people specially educated
and licensed by the government as well as being given access to highly confidential
adult protective information in special circumstances which may involve the health,
safety or welfare of an animal.
A reasonable presumption exists that humane societies in the state of Maine
provide sales of shelter animals to non-resident visitors of Maine, or transfer some
of their animals to licensed animal shelters in other states to prevent or relieve
overpopulation at any one shelter; therefore, humane societies can be reasonably
presumed to engage in interstate commerce thereby invoking 7 U.S. Code 2131
which states,
The Congress finds that animals and activities which are
regulated under this chapter are either in interstate or foreign
commerce or substantially affect such commerce or the free flow thereof,
and that regulation of animals and activities as provided in this
chapter is necessary to prevent and eliminate burdens upon such
commerce and to effectively regulate such commerce
Congress has expressly defined a public entity under 42 U.S. Code 12131
as any department, agency, special purpose district, or other instrumentality of a
State or States or local government.

23

Blacks Law, 9th Edition, defines instrumentality as A means or agency

through which a function of another entity is accomplished, such as a branch of a
governing body.
The services of an animal shelter or humane society would best fit within one
of the categories of public accommodations under the Americans with Disabilities
Act, 42 U.S. Code 12181
(7) Public accommodation
The following private entities are considered public accommodations for
purposes of this subchapter, if the operations of such entities affect
commerce
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel
service, shoe repair service, funeral parlor, gas station, office of an accountant
or lawyer, pharmacy, insurance office, professional office of a health care
provider, hospital, or other service establishment;
(K) a day care center, senior citizen center, homeless shelter, food bank,
adoption agency, or other social service center establishment.
Maine Human Rights Act cites similar types of public accommodations under
5 MRSA 4553:
8. Place of public accommodation. "Place of public accommodation" means a
facility, operated by a public or private entity, whose operations fall within at least
one of the following categories:
E. A bakery, grocery store, clothing store, hardware store, shopping
center, garage, gasoline station or other sales or rental establishment;
F. A laundromat, dry cleaner, bank, barber shop, beauty shop, travel
service, shoe repair service, funeral parlor, gas station, office of an accountant
or lawyer, pharmacy, insurance office, professional office of a health care
provider, hospital, dispensary, clinic, bathhouse or other service
establishment;
H. A museum, library, gallery or other place of public display or
collection;
K. A day-care center, senior citizen center, homeless shelter, food bank,
adoption agency or other social service center establishment; and
N. Any establishment that in fact caters to, or offers its goods, facilities
or services to, or solicits or accepts patronage from, the general public.

24

8-B. Public accommodation. "Public accommodation" means a public or

private entity that owns, leases, leases to or operates a place of public
accommodation.
8-C. Public entity. "Public entity" means:
A. The State or any local government;
B. Any department, agency, special purpose district or other
instrumentality of the State, 2 or more states or a local government; and
C. A state, local or private commuter authority as defined in the federal
Rail Passenger Service Act, Section 103 (8).
In 1866 [t]he American Society for the Prevention of Cruelty to Animals
(ASPCA) was the first humane society to be established in North America and is,
today, one of the largest in the world9 and since 1877 the historic American
Humane Association has been at the forefront of every major advancement in
protecting children, pets and farm animals from abuse and neglect.10
As the court noted in Schwab above, a state or local agency delegating law
enforcement duties to a private organization does not result in the avoidance of
disclosure through a delegation to a private entity that which otherwise would be an
agency responsibility."
Where a private party and the government exist via what amounts under the
law to a "symbiotic relationship" (like ox-peckers and rhinoceros), we have held the
private party responsible as a state actor under 1983. In a symbiotic relationship
the government has so far insinuated itself into a position of interdependence (with a
private entity) that it must be recognized as a joint participant in the challenged
activity." Burton, 365 U.S. at 725, 81 S.Ct. 856. Brunette v. Humane Society of
Ventura County, 294 F. 3d 1205 - Court of Appeals, 9th Circuit 2002
Federal, state and local governments regularly enter symbiotic relationships
with privately created humane societies for animal welfare services and specialized
animal law enforcement and control services because humane societies staff have
specialized skills, education, training, experiences, licenses, privileges and

https://www.aspca.org/about-us/about-the-aspca
http://www.americanhumane.org/about-us/

10

25

relationships which would not be cost efficient for each federal, state and local
government agency to reproduce at their own expense.
42 U.S. Code 5651 - Authority to make grants
(a) Grants to eligible States
The Administrator may make grants to eligible States, from funds
allocated under section 5652 of this title, for the purpose of providing financial
assistance to eligible entities to carry out projects designed to prevent juvenile
delinquency, including
(20) programs designed to prevent animal cruelty by juveniles
and to counsel juveniles who commit animal cruelty offenses, including
partnerships among law enforcement agencies, animal control officers,
social services agencies, and school officials;
42 U.S. Code 5652 - Allocation
(a) Allocation among eligible States
Subject to subsection (b) of this section, funds appropriated to carry out
this part shall be allocated among eligible States proportionately based on the
population that is less than 18 years of age in the eligible States.
These two federal codes give the states and their municipalities compelling
financial and socially significant incentives to enter symbiotic relationships with
animal control officers for the design and implementation of programs designed to
prevent animal cruelty by juveniles.
Therefore, when any government agency enters explicit contracts with a
privately created humane society to perform public benefit services at the publics
expense which may sometimes result in 1st, 4th, 5th, 7th and 14th Amendment and
other constitutional violations, the courts must honor fullest public access to their
records to guarantee the purposes of the public records laws are fulfilled in line with
legislative intent for the protection of the publics animals, money and other public
welfare interests.
The Champagnes assert the Society is a private corporation, rather than a
public or governmental entity. Thus, the doctrine does not apply. We disagree.
Although the Society is incorporated as a private, nonprofit corporation, the City of
Spokane has contractually delegated to the Society the authority to enforce the
animal regulations of its ordinance. See RCW 16.52.020; Storey v. Seattle, 124 Wash.
26

598, 602-04, 215 P. 514 (1923). Likewise, the obligations contractually undertaken by
the Society are no different than those otherwise owed by Spokane to the general
public. Thus, in assuming those animal control duties contractually, the Society is
essentially acting as a public entity. See State ex rel. State Humane Soc'y v. Hovey,
159 Wash. 584, 587, 294 P. 258 (1930) (Humane Society "is not organized for the
personal benefit of an individual or the personal benefit of any set of individuals, but
is organized for the public good, and is in its substance and effect a public
corporation."); Storey, at 602 (Humane Society is "a public corporation, created by
state law, to enforce its penal laws relating to the regulation of cats and dogs.").
Champagne v. Humane Society, 737 P. 2d 1279 - Wash: Court of Appeals, 3rd Div.
1987
B. Maine Supreme Judicial Court departed from accepted and
usual course of judicial proceedings in this 12(b)(6) dismissal
action by dismissing with prejudice after the movant failed to
defend their motion which calls for Supreme Court review.
The precedent is well settled that, Dismissal of a complaint is proper only
when the complaint fails to state a claim for which relief may be granted. See M.R.
Civ. P. 12(b)(6). A motion to dismiss tests the legal sufficiency of the complaint.
Livonia v. Town of Rome, 1998 ME 39, 5, 707 A.2d 83, 85 (citing Richards v.
Soucy, 610 A.2d 268, 270 (Me.1992)). For the purposes of a motion made pursuant to
Rule 12(b)(6), the material allegations of the complaint must be taken as admitted.
Livonia, 1998 ME 39, 5, 707 A.2d at 85 (citing Larrabee v. Penobscot Frozen
Foods, Inc., 486 A.2d 97, 98 (Me.1984)). When reviewing a dismissal, we examine the
complaint in the light most favorable to the plaintiff to determine whether it sets
forth elements of a cause of action or alleges facts that would entitle the plaintiff to
relief pursuant to some legal theory. See Livonia, 1998 ME 39, 5, 707 A.2d at 85. A
dismissal should only occur when it appears `beyond doubt that [the] plaintiff[s]
[are] entitled to no relief under any set of facts that [they] might prove in support of
[their] claim.' McAfee v. Cole, 637 A.2d 463, 465 (Me.1994) (quoting Hall v. Board of

27

Envtl. Protection, 498 A.2d 260, 266 (Me.1985)). In re Wage Payment Litig., 2000
ME 162, 3, 759 A.2d 217, 220
"When ruling on a motion for summary judgment, this Court must view the
evidence in the light most favorable to the nonmoving party." Am. Cargo Transp. v.
Natsios, 429 F.Supp.2d 139, 145 (D.D.C. 2006) (citing Bayer v. United States Dep't
of Treasury, 294 U.S.App. D.C. 44, 47, 956 F.2d 330, 333 (D.C.Cir.1992)). "The court
must accept evidence provided by nonmovants as true, and all justifiable inferences
are to be drawn in their favor." Hazward, 14 F.Supp.2d at 122 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).
"[T]he judge's function is not himself to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial." Anderson,
477 U.S. at 249, 106 S.Ct. at 2511. "[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party." 477 U.S. at 249, 106 S.Ct. at 2510 (citing First Nat'l Bank of Arizona v.
Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1502, 20 L.Ed.2d 569 (1968))
Daskalea v. Washington Humane Society, 480 F. Supp. 2d 16 - Dist. Court, Dist. of
Columbia 2007
Neither the Humane Society nor the Maine Supreme Judicial Court rebutted
the Humane Societys yearly income tax IRS 990 and Schedule A forms which have
consistently declared the Humane Society to be a publicly supported organization"
because it receives 33 1/3 % or more of its support from a government unit or the
general public, nor does the record reflect any rebuttal of the tens of thousands of
dollars received yearly through government contracts with roughly 20-25 very small
municipalities at local taxpayer expense.
"The purpose of FOAA is to open public proceedings and require that public
actions and records be available to the public." Town of Burlington v. Hosp. Admin.
Dist. No. 1, 2001 ME 59, 13, 769 A.2d 857, 861; see also Great N. Paper, Inc. v.
Penobscot Nation, 2001 ME 68, 43, 770 A.2d 574, 587. To promote such objectives,
FOAA must be liberally construed. 1 M.R.S.A. 401 (1989); Town of Burlington,
2001 ME 59, 13, 769 A.2d at 861. Thus, "[t]he burden of proof is on the agency or
28

political subdivision to establish just and proper cause for the denial of a FOAA
request." Town of Burlington, 2001 ME 59, 13, 769 A.2d at 861. Dow v. Caribou
Chamber of Commerce and Industry, 2005 ME 113
Contrary to the Maine Supreme Judicial Courts determination, Although
HSWA is funded in part by its contracts with area cities and towns, it receives the
bulk of its funding from private donations, it is a matter of public record that the
bulk of money collected by cities and towns is received directly from the inhabitants
and taxpayers through real estate taxes, sales taxes, registration fees, license fees,
permit fees, and other types of governmental fundraising which is used to pay for
service contracts with local humane societies and animal control officers to patrol
the municipalities and care for the communities animals. The Maine courts
distinction that governmental funding is derived from a different source than are
private donations is an erroneous determination subject to Supreme Court review.
After the Maine Supreme Judicial Court took six months to precisely review
the entire record which is full of GinAs motions, affidavits, memorandum and
exhibits and which lacks any well-plead motions or affirmative defenses by the
Humane Society, the court sealed their decision and the fate of the Maine people by
ruling, Even accepting all of the factual allegations in the complaint as true,
Turcotte has not stated a claim that entitles her to relief on her claim to compel
HSWA to provide her access to its records. The Maine Supreme Judicial Court
affirmed the prejudicial ruling of 12(b)(6) dismissal thereby violating GinAs and the
publics right to due process when a humane society seizes their animal, equal
protection of the law when an animal control officer decides an animal may be at
risk of harm and seizes the animal without a hearing or trial by jury as guaranteed
by the 1st, 4th, 5th, 7th and 14th Amendments.
This decision by the highest court in Maine directly deviates from accepted
and usual course of judicial proceedings in 12(b)(6) proceedings when the movant
fails to rebut the nonmovants memorandum of law in opposition with evidence as
extracted from public records searches on government websites and which amply

29

establishes issues of material fact to which GinA and the public has a right to due
process and trial by jury under the 1st, 4th, 5th, 7th and 14th Amendments.
If the Maine Supreme Judicial Court accepted all the material allegations of
GinAs complaint and all supporting evidence as true and admitted, together with
the Humane Societys willful, intentional and prejudicial failure under MRCivP 8(d)
and FRCivP 8(b)(6) to defend their 12(b)(6) motion, the court would have reversed
the dismissal of the Superior Court and would have ordered the Humane Society to
produce the records as requested.
The record shows there are many genuine issues of material fact which need
to be presented to a jury to determine if the interconnected relationship of state and
local government action with the actions of the humane societies creates the
symbiotic relationship necessary to hold the state and humane societies jointly
responsible for constitutional due process violations which occur as a result of
actions taken in their official capacity, such as has occurred in the instant case
presented in this petition.
This court decided in Rendell-Baker v. Kohn, 457 US 830 - Supreme Court
1982, our holdings have made clear that the relevant question is not simply whether
a private group is serving a public function. We have held that the question is
whether the function performed has been traditionally the exclusive prerogative of
the State. Jackson, supra, at 353; quoted in Blum v. Yaretsky, post, at 1011
(emphasis added).
There can be no doubt that it has always been traditionally the exclusive
prerogative of the State to protect the public from dangerous animals running at
large and spreading infectious diseases, enforcement of anti-cruelty laws, seizure of
private property without notice, hearing or due process of law and the ability to
gain access to heavily regulated narcotic pharmaceuticals or confidential medical
records which pushes the balance far into the territory of there being a symbiotic
relationship between the state and local governments and the humane societies;
therefore, humane societies must be classified as a public agency for all intents and

30

purposes of public records laws, disability laws and the publics right to redress
violations of their civil rights under 42 U.S. Code 1983.
Upon determining humane societies and animal control officers are in fact
state actors under 42 U.S. Code 1983, the Supreme Court must consequently
deem to be unconstitutional Maines immunity clause under 7 MRSA 3919-A(5)
which says,
Immunity. A veterinarian, a humane agent, an animal control officer or an
animal shelter, including a person employed by an animal shelter, is not civilly
liable to the owner of a cat for the loss of that cat resulting from actions taken in
compliance with this section.
The Maine Supreme Judicial Courts decision in Turcotte, which violated
United States Constitution, Article VI: This Constitution, and the Laws of the
United Statesshall be the supreme Law of the Land; and the Judges in every State
shall be bound thereby and Article IV, Section 2: The Citizens of each State shall
be entitled to all Privileges and Immunities of Citizens in the several States
combined with the effects of Maines immunity clause under 3919-A(5) gives Maine
humane societies and animal shelters sovereignty to spend public money as they
wish without proper oversight, the ability to seize and destroy private property
without public scrutiny, the authority to initiate and prosecute crimes under 17
MRSA regarding cruelty to animals, and the privilege of accessing highly
confidential private medical records in the custody of Department of Health and
Human Services when suspicions exist of animal abuse or neglect.
In short, the potential for abuse on the part of the . . . humane society is
tremendous. Gonzalez, 403 Pa.Super. at 173, 588 A.2d 528. Daskalea v. Washington
Humane Society, 480 F. Supp. 2d 16 (2007)
In closing, the Humane Societys attorney, Bryan B. Ward, Esq. said it best
on June 26, 2013 during the hearing for the district court companion case,
...if the court was to order the humane society to release the names [of
John/Jane Doe] we have no choice. Its not privileged under the law

31

CONCLUSION
For the foregoing reasons, the petition for writ of certiorari should be
granted.

February 2, 2015

~ submitted,

GinA (f/k/a GINA TURCOTTE)

Petitioner
2528 \Vest River Road
Sidney, Maine 04330
(207) 333-0628
peacivist@peaeivist.org

32

APPENDIX A
2014 ME 123
GINA TURCOTTE,
v.
HUMANE SOCIETY WATERVILLE AREA.
No. Ken-14-52
Submitted On Briefs: September 23, 2014.
Decided: November 4, 2014.
Supreme Judicial Court of Maine.
Gina Turcotte, appellant pro se.
The Humane Society Waterville Area did not file a brief.
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, JABAR,
and HJELM, JJ.
SILVER, J.
[ 1] Gina Turcotte appeals from an order of the Superior Court (Kennebec County,
Murphy, J.) dismissing her complaint against the Humane Society Waterville Area
(HSWA) for failure to state a claim upon which relief can be granted. Turcotte's
complaint sought, pursuant to Maine's Freedom of Access Act, 1 M.R.S. 400 et seq.
(2013), to compel HSWA to permit inspection of its records. Because we conclude
that HSWA is not a public agency for purposes of FOAA, we affirm the dismissal of
Turcotte's complaint.
I. BACKGROUND
[ 2] On September 18, 2013, Turcotte filed a pro se complaint for injunctive relief
seeking the release of HSWA records relating to a certain cat.[1] The complaint
alleged, in relevant part, that Turcotte "is a private woman who has a right to
review and receive public documents in the custody of public benefit, nonprofit
agencies" and that HSWA "is a public benefit, nonprofit agency supported by 95%
public donations for the purpose of reuniting, sheltering and rehoming lost
and abandoned animals." The complaint further alleged that Turcotte had
submitted a request for documents to HSWA pursuant to FOAA and that HSWA
"wrongfully withheld public records requested by Claimant by failing to comply
with the statutory time limit for the processing of FOAA requests."
[ 3] On December 16, 2013, HSWA filed a motion to dismiss pursuant to M.R. Civ.
P. 12(b)(6) for failure to state a claim upon which relief could be granted, asserting
that "HSWA23aff8e7being a private corporation23aff8e7is not subject to the
disclosure provisions of [FOAA]." In her opposition to HSWA's motion, Turcotte
33

argued that "HSWA is the functional equivalent of a public agency" and included
several exhibits pertaining to HSWA's contracts with twentythree cities and towns
and HSWA's tax status as an "organization that normally receives a substantial
part of its support from a governmental unit or from the general public." HSWA's
contract with the City of Waterville, which Turcotte attached as an exhibit to her
opposition to the motion to dismiss, provides, in part: By statute, ALL towns are
either required to maintain an animal shelter or otherwise provide such services
with regard to stray domestic animals.
The SHELTER is hereby employed and authorized to act as an animal shelter and
is equipped to provide such services in compliance with statutory requirements. The
SHELTER will provide food, water, shelter, medical care, and/or any other humane
treatment for such domestic animals while they are in possession of the SHELTER.
[ 4] On January 20, 2014, the court issued an order dismissing Turcotte's
complaint with prejudice, concluding that HSWA "is not subject to 1 M.R.S. [] 400
et seq." Turcotte appealed.
II. DISCUSSION
[ 5] "We review de novo the legal sufficiency of a complaint when it has been
challenged by a motion to dismiss." Ramsey v. Baxter Title Co., 2012 ME 113, 6,
54 A.3d 710 (quotation marks omitted). In doing so, we view the complaint "in the
light most favorable to the plaintiff to determine whether it sets forth elements of a
cause of action or alleges facts that would entitle the plaintiff to relief pursuant to
some legal theory," id. (quotation marks omitted), and "we take the material
allegations of [the] complaint as though they were admitted."[2] In re Austin T.,
2006 ME 28, 6, 898 A.2d 946.
[ 6] Pursuant to FOAA, "a person has the right to inspect and copy any public
record . . . within a reasonable time of making the request to inspect or copy the
public record." 1 M.R.S. 408A. "Public records" means
any written, printed or graphic matter or any mechanical or electronic data
compilation . . . that is in the possession or custody of an agency or public
official of this State or any of its political subdivisions . . . and has been
received or prepared for use in connection with the transaction of public or
governmental business or contains information relating to the transaction of
public or governmental business.
1 M.R.S. 402(3). When evaluating whether an entity qualifies as a public agency
or political subdivision for purposes of FOAA, we look to the function that the entity
performs. Dow v. Caribou Chamber of Commerce and Indus., 2005 ME 113, 12,
884 A.2d 667. We consider four factors in conducting this analysis: "(1) whether the
entity is performing a governmental function; (2) whether the funding of the entity
34

is governmental; (3) the extent of governmental involvement or control; and (4)

whether the entity was created by private or legislative action." Id. (quoting Town
of Burlington v. Hosp Admin. Dist. No. 1, 2001 ME 59, 16, 769 A.2d 857). We
address each factor in turn.
[ 7] First, we consider whether HSWA performs a governmental function. HSWA is
contractually obligated to provide food, shelter, and medical services to stray
animals, which benefits each of the municipalities HSWA serves. Other
jurisdictions have concluded that humane societies serve governmental functions;
they have done so, however, primarily where the societies and their employees are
authorized by statute to take actions such as enforcing animal welfare laws and
confiscating abused or neglected animals. See, e.g., Daskalea v. Washington
Humane Soc'y, 480 F.Supp.2d 16, 26 (D.D.C. 2007) (humane society is a government
actor for purposes of a section 1983 claim because it has statutory authority to
prosecute violations of animal cruelty laws, obtain warrants to search private
homes, collect fines, and seize any animal to protect it from abuse or neglect);
Brunette v. Humane Soc'y of Ventura Cnty., 294 F.3d 1205, 1208 (9th Cir. 2002)
(humane society and its officers are state actors for purposes of section 1983
because humane society was created by statute and has the authority to investigate
animal cruelty, impound animals, place liens on property, and file criminal
charges); Champagne v. Spokane Humane Soc'y, 737 P.2d 1279, 1282 (Wash. Ct.
App. 1987) (privately incorporated humane society essentially acts as public entity
where city has contractually delegated to it the authority to enforce animal control
ordinance).
[ 8] Here, the City is required by statute to select a shelter to fulfill the function of
sheltering stray animals. 7 M.R.S. 3949 (2013). Unlike those in other jurisdictions,
however, shelter employees in Maine have no statutory authority to enforce animal
welfare regulations; only animal control officers may do so.[3] Id.; 7 M.R.S. 3947
(2013). That an entity provides services under a contract with a public agency is
insufficient, on its own, to establish that it performs a
governmental function. See Town of Burlington, 2001 ME 59, 23, 769 A.2d 857
(Alexander, J., concurring). Thus, HSWA does not perform a traditional
governmental function.
[ 9] Second, we consider whether HSWA is governmentally funded. Although
HSWA is funded in part by its contracts with area cities and towns, it receives the
bulk of its funding from private donations. This factor counsels against the
conclusion that HSWA is a public agency subject to FOAA.
[ 10] Third, we examine the extent of any governmental involvement and control.
HSWA is subject to certain licensing requirements and is bound to abide by the
terms of its contract with the city. Such limited interaction does not amount to
significant governmental involvement in or control over HSWA.
35

[ 11] Fourth, HSWA was not created by statute. This final factor weighs in favor of
concluding that HSWA is not a public agency.
[ 12] Our review of the four factors leads us to conclude that, although HSWA
performs a function that both benefits the public and assists municipalities in
fulfilling their statutory obligation to arrange for shelter services to be provided for
the area, it is not a public agency subject to the requirements of FOAA. Even
accepting all of the factual allegations in the complaint as true, Turcotte has not
stated a claim that entitles her to relief on her claim to compel HSWA to provide
her access to its records.
The entry is: Judgment affirmed.
[1] Turcotte asserts that she lost her cat in September 2012, and that she
repeatedly contacted HSWA to report the cat missing and to inquire whether
anyone had surrendered the cat to the shelter. She further asserts that a Waterville
resident found the cat and turned it over to HSWA in November 2012, but HSWA
never contacted Turcotte. Turcotte only learned that the cat had been found when
she saw a photo of it posted on HSWA's Facebook page on January 4, 2013, with a
caption announcing the cat's adoption. HSWA has evidently already successfully
defended a civil action in which Turcotte sought to have the cat returned to her. The
factual details of this underlying dispute are not relevant to this appeal, which
concerns only Turcotte's FOAA request.
[2] As part of her opposition to HSWA's motion to dismiss, Turcotte filed a number
of extrinsic documents, which we consider here. We need not reach the question of
whether these materials may properly be considered in the context of a motion to
dismiss a complaint for failure to state a claim, see, e.g., Moody v. State Liquor &
Lottery Comm'n, 2004 ME 20, 11, 843 A.2d 43, because even if they are properly
considered, the complaint as supplemented by the attachments is insufficient to
support Turcotte's claim.
[3] A shelter employee may serve as an animal control officer, but only if that
person independently fulfills the requirements to do so. 7 M.R.S. 3947 (2013).

36

APPENDIX B

SUPERIOR COURT
KENNEBEC, ss.

DOCKET NO::AUGSC-CV-2013-00226

GINA TURCOTTE
Plaintiff,
v.
HUMANE SOCIETY, WATERVILLE
AREA
Defendant.

)
)
) ORDER DISMISSING COMPLAINT
)
)
)

The Court, having considered the foregoing pleadings, motions and responses; and
good cause appearing, hereby DISMISSES Plaintiffs Complaint dated 25
November 2013, with prejudice. The Humane Society Waterville Area is not subject
to 1 M.R.S.A section 400 et. seq.
Dated: 1/20/14

Judge Michaela Murphy

37

APPENDIX C
STATE OF MAINE
DISTRICT COURT
Location: Augusta
Docket No: __________________
Gina Turcotte
Claimant
v
Andrea Pasco, in her individual capacity
Jon Eustis, in his individual capacity
Michael Williams Sr., in his individual capacity
John/Jane Doe, third party purchaser
Respondents

*
*
*
COMPLAINT
* Recovery of Personal Property
*
(Summary Process)
*
14 MRSA 7071(2)
*
*

NOW COMES the Claimant, Gina Turcotte, and states as follows:

1. Claimant has a lawful right, title or interest in personal property in the
possession of John/Jane Doe at an unknown location in Kennebec County;
2. The personal property in which Claimant has a lawful right, title or interest is
a grey and white medium/long hair neutered male cat who answers to the name
Smokey and was given the name Shamoo by Respondent Pasco;
3. Respondents, John/Jane Doe, are currently in possession of said personal
property at an unknown location in Kennebec County after unlawfully
purchasing Smokey from Pasco, Eustis and Williams on January 4, 2013
and;
4. Respondents Pasco, Eustis and Williams knowingly breached their fiduciary duty
to Claimant and have unlawfully and willfully refused to return said personal
property or disclose the name and address of John/Jane Doe.
WHEREFORE, Claimant demands Judgment for possession of said personal
property and moves this Court to issue a Writ of Possession directing the Sheriff to
cause Claimant to have possession of the above-described personal property which
is in the current possession of John/Jane Doe at an unknown location, and for such
other relief as the court deems just and appropriate.
DATED: April 24, 2013

___________________________________________
Gina Turcotte, Claimant

38

STATE OF MAINE
DISTRICT COURT
Location: Augusta
Docket No: __________________
Gina Turcotte
Claimant
v
Andrea Pasco, in her individual capacity
Jon Eustis, in his individual capacity
*
Michael Williams Sr., in his individual capacity
John/Jane Doe, third party purchaser
*
Respondents
*

*
*
*
*
*

AFFIDAVIT IN SUPPORT
OF COMPLAINT FOR
RECOVERY OF
PERSONAL PROPERTY
14 MRSA 7071(2)
With Incorporated
Memorandum of Law

NOW COMES Claimant, Gina Turcotte, and upon her own knowledge,
information, experiences and belief, and so far as upon her information and belief,
she believes this information to be true and correct, does state the following facts:
DEFINITIONS AND MEMORANDUM OF LAW
1.

2.
3.

At all times mentioned hereafter all references to the words defined below have
the meanings assigned by Blacks Law Dictionary, 1st edition, as follows:
A. beast as, an animal; a domestic animal.
B. animal as, any animate being which is endowed with the power of
voluntary motion not including humans.
C. agent as, one who undertakes to transact some business, or to manage
some affair, for another, by authority and on account of the latter, and to
render an account of it.
D. express trust as, Express trusts are those created and manifested by
agreement of the parties.
E. fiduciary as, a person who is invested with rights and powers to be
exercised for the benefit of another person.
F. trust as, equitable or beneficial right or title to property, held for
the beneficiary by another person, in whom resides the legal title or
ownership
G. trustee as, one in whom an estate, interest or power is vested, under
an express or implied agreement to administer or exercise it for the
benefit or to the use of another
"When interpreting a statute, we look first to the language." Richardson v.
United States, 526 U.S. 813, 818 (1999).
"Statutory language must be read in context and a phrase 'gathers meaning
from the words around it.'" Jones v. United States, 527 U.S. 373, 389 (1999)
(quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)).

39

4.

5.

6.

7.

8.

"Abandonment requires affirmative proof of the intent to abandon coupled with

acts or omissions implementing the intent. Mere non-use is not sufficient to
establish the fact of abandonment, absent other evidence tending to prove the
intent to abandon. Kiser v. Board of Commrs. (1911), 85 Ohio St. 129, 97
N.E. 52; see 1 Corpus Juris Secundum (1936) 10, Abandonment, Section
3b(2)."
It has been held as far back as 1831 that no one can transfer a greater right or
better title than he himself possesses. Roland v. Gundy (1831), 5 Ohio 202,
204, 1831 WL 67; see, also, Hamet v. Letcher (1881), 37 Ohio St. 356, 359,
1881 WL 108; Cooperider v. Myre (1930), 37 Ohio App. 502, 506, 175 N.E.
235. The mere fact of one putting property into the charge or custody of
another does not divest the possession of the true owner; the legal possession
still remains in the owner, for the agent, bailee, or lessee thereof can have no
greater title than his grant provides. Cooperider, 37 Ohio App. at 506-507,
175 N.E. 235. Long v. Noah's Lost Ark, Inc., 158 Ohio App. 3d 206 (2004)
the common law bona fide purchaser doctrine [states] the original owner
must voluntarily relinquish possession and ownership of her property to the
third party who later sells the property to the good faith purchaser. Linn v.
Reid, 114 Wash. 609, 611, 196 P. 13 (1921). An original owner does not
voluntarily relinquish possession by mere negligence. See Stohr v. Randle, 81
Wash.2d 881, 882-84, 505 P.2d 1281 (1973) Graham v. Notti, 196 P. 3d
1070 - Wash: Court of Appeals, 3rd Div. 2008
5 CFR 2635.101 Basic obligation of public service binds ALL government
employees and private individuals acting as government agents, specifically,
but not inclusively, as follows:
A. Public service is a public trust.
B. General principles. The following general principles apply to every
employee and may form the basis for the standards contained in this
part. Where a situation is not covered by the standards set forth in this
part, employees shall apply the principles set forth in this section in
determining whether their conduct is proper.
1. Public service is a public trust, requiring employees to place loyalty to
the Constitution, the laws and ethical principles above private gain.
2. Employees shall not hold financial interests that conflict with the
conscientious performance of duty.
3. Employees shall not engage in financial transactions using nonpublic
Government information or allow the improper use of such
information to further any private interest.
4. (7) Employees shall not use public office for private gain.
5. (8) Employees shall act impartially and not give preferential
treatment to any private organization or individual.
5 CFR 2635.102 Definitions

40

9.

10.

11.

12.

13.

14.

15.
16.

17.

1. Employee means any officer or employee of an agency, including

employees of a State or local government or other organization who
are serving on detail to an agency,
BACKGROUND FACTS
On September 17, 2012, TURCOTTE was unlawfully forced to leave the
premises of the Budget Host Hotel at 400 Kennedy Memorial Drive, Waterville
Maine because Patel Umesh, the owner/manager of the hotel, was unhappy
that he could not charge a pet fee for TURCOTTEs service animal (cat)
(hereinafter SMOKEY) and he immediately evicted TURCOTTE giving her one
and one-half hours to leave the hotel property even though UMESH was told
and knew that SMOKEY was outside going to the bathroom. UMESH
threatened to call the police at the end of the one and one-half hours.
TURCOTTE left the property after one and one-half hours and immediately
went to an adjoining business with her friend to continue to look for SMOKEY.
SMOKEY is a medium/long hair grey and white, neutered male cat whose
name is Smokey and who has been TURCOTTEs beloved daily companion
since 2008.
SMOKEY was not microchipped because microchipping conflicts with
TURCOTTEs religious beliefs. SMOKEY was not wearing any identification
tags when he was lost. SMOKEY responds positively to TURCOTTEs voice
and upon hearing the name SMOKEY.
TURCOTTE spoke with a hotel employee, GEORGE, who lived on the hotel
property full time and was given SMOKEYs carrier and TURCOTTEs phone
number in the case that SMOKEY returned to the property. TURCOTTE never
received a call from GEORGE or anyone else.
On or about September 18, 2012, TURCOTTE called the Waterville Animal
Control officer and reported the incident asking for help retrieving SMOKEY.
TURCOTTE was advised by City of Waterville Police Department, Division of
Animal Control to contact PASCOs agents at the HUMANE SOCIETY
WATERVILLE AREA to file a missing cat report.
On or about September 18, 2012 TURCOTTE called the HUMANE SOCIETY
WATERVILLE AREA and filed a missing cat report providing specific
description of the cat and details including date and location where SMOKEY
was lost.
TURCOTTE declares that she can prove that she called PASCO by
subpoenaing PASCOs phone records.
TURCOTTE was specifically advised by PASCOs agent that a record was in
fact created and would be retained for future reference if SMOKEY was
brought into the shelter.
TURCOTTE reasonably believed that PASCOs agents were being truthful
about their agreement to create a report of SMOKEY for the purpose of
reunification.

41

18. PASCOs agent agreed that HUMANE SOCIETY WATERVILLE AREA would

19.

20.

21.

22.

23.

24.

25.

26.

act as a fiduciary and trustee for TURCOTTE with the explicit agreement
that PASCOs agents would act to reunify TURCOTTE and SMOKEY.
TURCOTTE never implied nor expressed any intention to transfer
ownership or title, and never abandoned nor surrendered SMOKEY in any way
whatsoever.
On or about September 20, 2012 TURCOTTE called the HUMANE SOCIETY
WATERVILLE AREA and asked if anyone had found SMOKEY and what steps
could be taken to get him back. TURCOTTE advised PASCOs agent that a
public notice had just been placed on craigslist with SMOKEYs pictures and
gave instructions on where to find that public notice which said, verbatim,
I had to leave my hotel room at a moment's notice while my cat was still
outside and the hotel manager did not allow me to find him first ... My cat is
an EMOTIONAL SERVICE ANIMAL and is NEEDED very much ... His
name is Smokey and he is a very lovable, non-aggressive cat who LOVES
tuna ... He was last seen behind Budget Host Airport Hotel on Kennedy
Memorial Drive in Waterville Maine on Monday, September 17. Smokey
WILL respond verbally to his name and he WILL most likely respond if he
hears the banging of a spoon against a tin can of tuna (i always give him
tuna when he comes back from exploring ... ) Here are some pictures of him...
he does NOT wear a collar or other tags ... his veterinarian is The Cat
Hospital in Augusta and he is healthy and vaccinated ... If you see him,
please send an email to this ad..
TURCOTTE declares that PASCOs agents did not disclose that a record had
not been created or maintained and that they had no intention to create such
record.
TURCOTTE declares upon her best information and belief that PASCOs
records are mostly electronic and that any and all physical data would be
scanned into their electronic database and then destroyed for space-saving
purposes.
TURCOTTE declares upon her best information and belief that providing a
physical photograph did not guarantee PASCOs agents would create a record
for SMOKEY.
TURCOTTE specifically requested, and had a reasonable expectation, that
PASCOs agent would visit the website of TURCOTTEs public notice and
properly archive the pictures and data into their electronic database in
compliance with their fiduciary duty to retain a record for SMOKEY.
On or about September 22, 2012, TURCOTTE liked (began following the
activities of) the HUMANE SOCIETY WATERVILLE AREAs Facebook page
with the reasonable expectation that some or all stray animals brought into the
animal shelter were publicly posted and that TURCOTTE would see it.
TURCOTTE posted a request on HUMANE SOCIETY WATERVILLE AREAs
Facebook page requesting help finding SMOKEY; said request now appears to
have been deleted.
42

27. In early October 2012 a public notice was posted on a physical bulletin board at

28.

29.

30.

31.

32.

33.

34.

TJs Classic Billiards at 14 Airport Road Waterville Maine with SMOKEYs

photograph and TURCOTTEs contact details. The owners of TJs Classic
Billiards were personally informed by TURCOTTE of the missing cat and given
TURCOTTEs contact details.
On October 25, 2012 at 9:00pm a second public notice was posted on craigslist
under lost and found with photographs of Smokey, verbatim,
Smokey is still missing ~ LAST SEEN SEPTEMBER 17, 2012 at Budget
Host Airport Hotel. If you see him, PLEASE CALL OR EMAIL ME ASAP !!
Two 0 Seven ~ Two 3 Eight ~ Six 3 Two 5; ext. 108
Between September 18, 2012 and January 4, 2013 countless attempts were
made by TURCOTTE and no less than four (4) uninterested parties to locate
SMOKEY including, but not limited to: telephoning PASCOs agents at the
shelter to file a report and follow up inquires, placing public notices on
craigslist, posting public notices at local businesses (billiard hall, mechanical
garage in the area where SMOKEY was last seen), calling Waterville Animal
Control, posting pictures on HUMANE SOCIETY WATERVILLE AREAs
Facebook page, visiting Petfinder.com and Petango.com, and walking through
adjacent neighborhoods calling for SMOKEY where he was last seen.
On January 4, 2013 at 4:38pm PASCOs agents posted a photograph of
SMOKEY on their Facebook page announcing that SMOKEY (aka Shamoo)
was just adopted.
On January 4, 2013 at 7:48pm TURCOTTE saw the photograph of SMOKEY
(Shamoo) on Facebook and the announcement of his adoption and posted the
following public comment, verbatim,
i think this is my cat Smokey who was lost in Waterville earlier this year. I
have not stopped looking for him and have checked your adoption page many
times and have not seen his picture out there; as a matter of fact i just looked
for him again the other day. I will be calling your office to ask about getting
my cat back since I did call your office when he first went missing and gave
you all his information and a link to the craigslist post with his picture
looking for him... if this is Smokey i will want to get him back immediately as
he is a service animal and very much missed.
TURCOTTE declares that PASCOs undisclosed possession of SMOKEY for 47
days created a fraudulent concealment which was the direct and proximate
cause for TURCOTTE not being reunified with SMOKEY.
PASCO admits that SMOKEY was brought to our shelter by a private citizen
on November 12, 2012 He was entered into our inventory system and given
the name Shamoo... We held the cat for a total of 53 days [and] placed on the
adoption floor on December 28, 2012, and was adopted on January 4, 2013.
PASCO breached her duty to both TURCOTTE and CITY OF WATERVILLE
as a public servant bound by 33 MRSA entrusted with TURCOTTEs lost
property.

43

35. PASCO cannot act in good faith as DIRECTOR for the HUMANE SOCIETY

36.

37.

38.

39.

40.

41.

42.

43.
44.

while simultaneously acting as a PUBLIC SERVANT pursuant to the contract

with CITY OF WATERVILLE without creating an obvious conflict of interest.
TURCOTTE makes judicial notice of the mission statement of the HUMANE
SOCIETY WATERVILLE AREA, which does NOT include any reference to
reunification of lost animals with their rightful and lawful owners, specifically,
The mission of the Humane Society - Waterville Area is to shelter homeless
animals until they can be placed in new homes, to educate the public about
responsible pet ownership, and to advocate for animal welfare.
TURCOTTE declares that when PASCO accepts a report of a lost animal by the
animals owner, PASCO is creating an express trust (contract) with that
individual/owner for the benefit of the owner and his/her lost animal. PASCO
in fact accepts fiduciary duty as trustee to both animal and owner and must act
ONLY in the joint best interests of the animal and owner. PASCO is in no way
a beneficiary to the express trust.
On January 4, 2013 at 7:50pm TURCOTTE telephoned PASCOs office and left
a message on their recorder notifying them that they had just given SMOKEY
(Shamoo) away without making the required inquiries and notifications in
accordance with TURCOTTEs missing cat report and numerous follow up
calls.
On January 5, 2013 at 9:00am TURCOTTE telephoned PASCOs office and
spoke with PASCOs agent who said they received SMOKEY as a stray on
November 15, 2012 by a Waterville resident who in fact lives in the area of the
Budget Host hotel on Kennedy Memorial Drive.
PASCOs agent admitted they did not have any records filed by TURCOTTE of
a missing cat report for SMOKEY, but stated the cat they call Shamoo looks
very much like the pictures of SMOKEY which had been posted on Facebook
and which PASCOs agent had just looked at.
TURCOTTE asked PASCOs agent why the missing cat report from September
and follow up calls were not properly logged in their system and why
TURCOTTE was not notified on November 15 when SMOKEY was brought
into the shelter. PASCOs agent could not give any explanation whatsoever
why TURCOTTEs report was not properly catalogued and why she was not
properly and lawfully notified.
TURCOTTE asked PASCOS agent why they did not post pictures of SMOKEY
when they first received him and why TURCOTTE could not find pictures of
him on their website as an adoptable cat.
PASCOs agent told TURCOTTE they do not publicize any stray
animals and only post pictures after the animal has been adopted.
TURCOTTE declares that some licensed animal shelters in Maine do in fact
post public notices pursuant to 33 MRSA 1051 et seq, namely, but not
exclusively
A. Kennebec Valley Humane Society at
http://www.pethavenlane.org/kvhs/Missing%20Pets.htm
44

The staff here at KVHS works hard to post every stray that comes in;
however, please keep in mind that we may not be able to post them all.
If you don't see your missing pet listed below please call the shelter
B. Bangor Humane Society at
http://www.bangorhumane.org/LostFoundPets.php
1. if you have recently lost a pet from one of these towns, check out our
current list of lost/stray pets. If you think we may have your pet, call
us so we can collect more detailed information. Then, with proof of
ownership and a Photo I.D., we can help bring your lost pet home!
OR, FILE A LOST CAT OR DOG REPORT. DOWNLOAD THE
FORM AND EMAIL IT BACK TO US WITH A PHOTO. IF WE
HAVE YOUR LOST PET, WE WILL CONTACT YOU DIRECTLY
C. Coastal Humane Society at http://www.coastalhumanesociety.org/for-youyour-pets/lost-found/
1. Here youll find instructions on what to do if your animal is lost. You
should notify Animal Control of your missing animal, and file a
report of your missing cat or dog with us here at the Coastal Humane
Society. After you have read up on what to do if your animal goes
missing, you can also check our shelter for your animal by clicking
Stray Cats at CHS which will display all of the animals at the
Coastal Humane Society that have come in as strays- excluding those
that were surrendered by their owners. On the panel to the left, youll
also find a list of reported missing animals in our community, as well
forms to report your missing dog or cat.
45. TURCOTTE told PASCOS agent if they had made the required public notices
of SMOKEY on their website or Facebook pursuant to the law TURCOTTE
would have seen the notice and would have immediately claimed him.
46. On January 5, 2013 at 10:00am TURCOTTE received a phone call from
PASCO in response to TURCOTTEs request to speak with her. PASCO
informed TURCOTTE that PASCO was not going to assist with any
reunification efforts between TURCOTTE and SMOKEY, that PASCO was not
going to engage any remedial action to correct the serious mistakes made by
PASCOs agents when they failed to properly catalogue the missing cat report
in September 2012, and that TURCOTTE no longer had any legal claim to
SMOKEY because PASCO arrogantly claimed that she knows the stray
animal law and TURCOTTE does not.
47. On January 7, 2013, TURCOTTE sent a letter to PASCO, EUSTIS, and
WILLIAMS, individually and collectively, pursuant to the Maine Unfair
Trade Practices Act, 5 MRSA 213, titled Request for Damages from
Seller demanding a sole remedy of the immediate return of SMOKEY to
TURCOTTEs physical possession, which states, verbatim,
1.

5 M.R.S.A. 213
Unfair Trade Practices Act
45

Request for Damages from Seller66

Monday, January 07, 2013
Andrea Pasco, Individually, and
ANDREA PASCO, DIRECTOR, WATERVILLE HUMANE SOCIETY
JON EUSTIS, PRESIDENT, WATERVILLE HUMANE SOCIETY
MICHAEL WILLIAMS, SR., VICE PRESIDENT, WATERVILLE
HUMANE SOCIETY
100 WEBB ROAD
WATERVILLE, MAINE 04901
RE: SHAMOO, GREY/WHITE MEDIUM/LONG HAIR,
NEUTERED MALE CAT
aka Smokey, subject of lost cat report filed on/about
September 18, 2012
RECEIVED NOVEMBER 15, 2012, ADOPTED JANUARY 4,
2012
Dear Ms. Pasco, Mr. Eustis and Mr. Williams:
Under the provisions of the Maine Unfair Trade Practices Act, 5
M.R.S.A. 213, I hereby make written demand for relief as outlined in
that statute.
On or about September 17, 2012 I was unlawfully forced to leave the
premises of the Budget Host Hotel on Kennedy Memorial Drive in
Waterville Maine even though my emotional service animal and longtime beloved companion, a medium-haired grey and white male cat
whose name is Smokey, was outside going to the bathroom. Smokey has
been in my family since 2009.
On or about September 17, 2012 an employee named George at the
Budget Host hotel, who is a housekeeper and who resides fulltime on the
hotel property, was given possession of Smokeys cat carrier (which he
still has) along with my contact phone number with instructions to call
me if he found my cat. I have visited the hotel property numerous times
since September 17, 2012 with no less than 4 individual witnesses.
On or about September 18, 2012, I called the Waterville Animal
Control officer and reported the missing cat and asked for help retrieving
Smokey. I was advised by Waterville Animal Control to contact
Waterville Humane Society and file a missing cat report.
On or about September 18, 2012 I called the Waterville Humane
Society and filed a missing cat report with specific details and told them I
would be posting a missing cat public notice on craigslist.

46

On or about September 20, 2012 I called the Waterville Humane

Society and asked if anyone had found Smokey and what steps I could
take to get him back. I advised the humane society employee that I had
just placed a public notice on craigslist with Smokeys pictures and gave
her instructions on where to find that public notice (which is archived for
evidence) which says, verbatim,
I had to leave my hotel room at a moment's notice while my cat was
still outside and the hotel manager did not allow me to find him first ...
you can listen to that interaction here:
https://www.youtube.com/watch?feature=player_embedded&v=N_MGUs
uLqyM
My cat is an EMOTIONAL SERVICE ANIMAL and is NEEDED very
much ... His name is Smokey and he is a very lovable, non-aggressive cat
who LOVES tuna ... He was last seen behind Budget Host Airport Hotel
on Kennedy Memorial Drive in Waterville Maine on Monday, September
17. Smokey WILL respond verbally to his name and he WILL most likely
respond if he hears the banging of a spoon against a tin can of tuna (i
always give him tuna when he comes back from exploring ... ) Here are
some pictures of him... he does NOT wear a collar or other tags ... his
veterinarian is The Cat Hospital in Augusta and he is healthy and
vaccinated ... If you see him, please send an email to this ad..
On or about September 22, 2012 I liked the Waterville Humane
Societys Facebook page and posted a request for help to find Smokey
(which now appears to have been deleted by somebody).
In early October 2012 a public notice was posted on a bulletin board
at TJs Classic Billiards on 14 Airport Road Waterville Maine with
Smokeys photograph and contact details. The owners of TJs Classic
Billiards were informed of the missing cat and given contact details.
On October 25, 2012 at 9:00pm a second public notice (which is
archived for evidence) was posted on craigslist under lost and found
with photographs of Smokey, verbatim,
Smokey is still missing ~ LAST SEEN SEPTEMBER 17, 2012 at
Budget Host Airport Hotel. If you see him, PLEASE CALL OR EMAIL
ME ASAP !! Two 0 Seven ~ Two 3 Eight ~ Six 3 Two 5; ext. 108
On November 15, 2012, Waterville Humane Society received Smokey
from a Waterville city resident claiming Smokey was a stray cat who
had been wandering around the neighborhood which was in fact near the
Budget Host Hotel on Kennedy Memorial drive in Waterville which was
the last location Smokey had been seen as reported to the humane
society employees.
Waterville Humane Society employees were willfully negligent in
failing to properly record and catalogue the missing cat report on
September 18, 2012 and failing to properly record all subsequent follow

47

up telephone inquiries about the cat that was subsequently delivered to

their temporary custody on November 15, 2012 as a stray animal.
Waterville Humane Society negligently failed to post the required
public notices regarding stray animals pursuant to 33 MRSA 1051.
Duty of finder of money or goods worth $3 or more. If the value
is $10 or more, the finder, in addition to the notice to the town clerk and
the notification to be posted, shall, within one month after finding,
publish a notice thereof in some newspaper published in the town, if any,
otherwise in some newspaper published in the county.
Waterville Humane Society negligently failed to contact me in
accordance with my missing cat report filed with them on or about
September 18, 2012 and numerous follow up calls.
Between September 18, 2012 and January 4, 2013 countless
attempts have been made by me and no less than four (4) uninterested
parties to locate Smokey including telephoning the Waterville Humane
Society and speaking with employees, placing public notices on craigslist,
posting public notices at local businesses (billiard hall, mechanical
garage, hotel in the area where Smokey was last seen), calling Waterville
Animal Control, posting pictures on Waterville Humane Societys
Facebook page, visiting Petfinder.com and Petango.com, etc, and walking
through adjacent neighborhoods calling for Smokey where he was last
seen.
On January 4, 2013 at 4:38pm Waterville Humane Society posted a
photograph of Smokey on their Facebook page announcing that Smokey
(aka Shamoo) was just adopted.
On January 4, 2013 at 7:48pm I saw the photograph of Smokey
(Shamoo) on Facebook and the announcement of his adoption and I
posted the following public comment, verbatim,
i think this is my cat Smokey who was lost in Waterville earlier this
year. I have not stopped looking for him and have checked your adoption
page many times and have not seen his picture out there; as a matter of
fact i just looked for him again the other day. I will be calling your office
to ask about getting my cat back since I did call your office when he first
went missing and gave you all his information and a link to the craigslist
post with his picture looking for him... if this is Smokey i will want to get
him back immediately as he is a service animal and very much missed.
On January 4, 2013 at 7:50pm I telephoned the Waterville Humane
Society and left a message on their recorder notifying them that they had
just given my cat Smokey (Shamoo) away without notifying me in
accordance with my missing cat report and numerous follow up calls. I
said I would be calling again on Saturday, January 5, 2012 to speak with
someone about retrieving my cat.
On January 5, 2013 at 9:00am I telephoned the Waterville Humane
Society and spoke with an employee who said they received Smokey as a
48

stray on November 15, 2012 by a Waterville resident who lives in the

area of the Budget Host hotel on Kennedy Memorial Drive.
The employee admitted they did not have any records of a missing cat
report for Smokey but the cat they call Shamoo looks very much like
the pictures of Smokey which I had posted on Facebook and which she
stated she had just looked at.
I asked this employee why my missing cat report from September and
my follow up calls were not in the system and why I was not notified on
November 15 when Smokey was brought into the shelter. The employee
could not give me any explanation why my report was not properly
catalogued and why I was not properly and lawfully notified.
I asked this employee why they did not post pictures of Smokey when
they first received him and why I could not find pictures of him on their
website as an adoptable cat. The employee told me they do not
publicize any stray animals and only post pictures after the animal
has been adopted.
I told the employee if they had made the required public notice
of the stray animal pursuant to the law I would have seen the
notice and would have immediately claimed him.
On January 5, 2013 at 10:00am I received a phone call from Andrea
Pasco in response to my request to speak with her. She informed me that
she was NOT going to assist with reunification of me and my cat, that
she was NOT going to engage any remedial action to correct the serious
mistake made by her staff when they failed to properly catalogue my
missing cat report in September 2012, and that I no longer had any legal
claim to Smokey because she knows the stray animal law and I do not.
Andrea Pasco, Director of the Waterville Humane Society, and her
staff grossly and negligently failed to give proper lawful public notice of
stray animals pursuant to 33 MRSA 1051, thereby automatically
invoking 33 MRSA 1058. Failure to give notice; penalty. if the
person taking up such stray beast neglects to give notice to the town clerk
and to cause them to be advertised as provided, he forfeits to the owner the
full value thereof unless he delivers or accounts therefor to the owner
Waterville Humane Society is subject to 33 MRSA 1054.
Restitution to appearing owner; money or goods. If the owner of
such lost money or goods appears within 6 months, and if the owner of
such stray beasts appears within 2 months after said notice to the town
clerk and gives reasonable evidence of ownership to the finder, the owner
shall have restitution of them.
Waterville Humane Societys negligent failure to comply with 33
MRSA et seq has resulted in the unlawful transfer of Smokey
(Shamoo) on or about January 4, 2012 without providing mandatory
public notice to the town clerk, local newspaper or other public venues
such as Craigslist, Facebook, Petfinder or Petango.
49

The issues of material fact which are the subject of this request are listed
below for your resolution:
a. Negligently failed to post public notice with town clerk pursuant to 33
MRSA 1051.
b. Negligently failed to post public notice in local newspapers and other
public venues.
c. Negligently failed to properly record and catalogue missing animal
written reports.
d. Negligently failed to properly record and catalogue missing animal
telephone inquiries.
e. Negligently, fraudulently and unlawfully transferred possession of
private property.
I believe your actions in this matter violate the Maine Unfair Trade
Practices Act, 5 M.R.S.A. 207.
As a result of your unfair or deceptive act or practice, I require the
following remedy:
1. Immediate transfer of my long-time emotional service animal and
companion, a neutered male grey and white medium/long-haired cat
named Smokey (aka Shamoo) to my permanent physical custody.
The Maine Unfair Trade Practices Act gives you the opportunity to
make a good faith response to this letter within thirty (30) days. Your
failure to do so could subject you to additional damages and costs if I
decide to institute lawful common law action.
I, GINA TURCOTTE, do hereby require that you immediately return
Smokey to my physical custody.
I, GINA TURCOTTE, do hereby certify and declare that the following
facts are true and correct to the best of my personal knowledge,
experiences and belief.
48. On January 14, 2013, PASCO responded in a letter to TURCOTTE, A cat
matching Smokey's description was brought to our shelter by a private citizen
on November 12, 2012. Upon his arrival we immediately scanned him for a
microchip. He was not microchipped and did not have a collar or any other
identification. He was entered into our inventory system and given the name
Shamoo... and therefore fell into the category of "Homeless Cat". We held the cat
for a total of 53 days; he was placed on the adoption floor on December 28, 2012,
and was adopted on January 4, 2013.
The Humane Society Waterville Area is a licensed animal shelter through the
State of Maine Animal Welfare Department. The State of Maine Animal Welfare
Laws and Regulations state the following:
7 3919-A. Procedure for acceptance and disposition of cats by animal
shelter
An animal shelter to which a cat is taken may accept the cat unless the shelter
is in quarantine. An animal shelter accepting a cat shall comply with the
provisions of this section. [2001, c. 363, 3 (NEW).]
50

1. Cats with identification. An animal shelter that accepts a cat with cat
identification shall make a reasonable attempt to notify the owner by
telephone or by sending a written notice within 24 hours of accepting the cat.
Except as provided in subsections 4 and 5, the animal shelter shall hold the
cat for a period of 6 days beginning on and including the day of acceptance. If
the owner claims the cat within the 6-day period, the animal shelter shall
release the cat to the owner upon payment of any municipal impoundment fee
and actual fees incurred for food, shelter and veterinary care. Upon expiration
of the 6-day period, ownership of the cat is vested with the animal shelter and
the animal shelter may then handle the cat as a homeless cat for disposition in
accordance with subsection 2.
[ 2001, c. 363, 3 (NEW) .]
2. Homeless cats. When an animal shelter accepts a cat under section 3919
and that cat does not have cat identification, the animal shelter shall hold the
cat for not less than 48 hours or, for feral cats, not less than 24 hours. After
the 24-hour or 48-hour period, the animal shelter may treat the cat as a
homeless cat and may:
A. Except as provided in section 3938-A, offer the cat for adoption, sell or give
away the cat; or [2007, c. 439, 9 (AMD).]
B. Otherwise dispose of the cat humanely in accordance with Title 17, chapter
42, subchapter 4. [2003, c. 405, 8 (AMD).]
An animal shelter may not sell or give a cat to a research facility.
[ 2009, c. 343, 11 (AMD) .]
We have followed the rules and regulations as defined by the State of Maine
Animal Welfare Rules and Regulations for animal shelters and are immune
from any further action you may take, protected by the rule as follows:
5. Immunity. A veterinarian, a humane agent, an animal control officer or an
animal shelter, including a person employed by an animal shelter, is not
civilly liable to the owner of a cat for the loss of that cat resulting from actions
taken in compliance with this section. [emphasis added]
Nothing in this subsection grants to an animal shelter or person any
immunity from liability arising from the gift, sale or other transference of a
cat to a research facility in violation of subsection 2. [ 2001, c. 363, 3 (NEW) .]
49. TURCOTTE declares that PASCOs letter did not indicate her compliance with
11 MRSA, 33 MRSA and other relevant statutes.
50. TURCOTTE declares that PASCOs alleged compliance with 7 MRSA 3919-A
does not in any way, neither implicitly nor explicitly, nullify PASCOs required
compliance with all pertinent Maine statutes while acting as private individual
and government agent.
51. TURCOTTE declares that all RESPONDENTS, except JOHN/JANE DOE,
acted, and act, as fiduciary, authorized agent, representative, and associate of
CITY OF WATERVILLE POLICE DEPARTMENT, DIVISION OF ANIMAL
CONTROL as a public servant bound by 5 CFR 2635.101 Basic obligation

51

52.

53.

54.

55.

56.

57.

of public trust, Employees shall not hold financial interests that conflict with
the conscientious performance of duty
TURCOTTE declares that PASCO breached public trust by willfully failing to
create or negligently deleting TURCOTTEs lost animal record which was the
direct and proximate cause preventing PASCO from reuniting SMOKEY with
TURCOTTE.
TURCOTTE declares PASCOs fiduciary duty to the HUMANE SOCIETY
WATERVILLE AREA and its Board of Directors does in fact create a conflict of
interest when PASCO sells the animals for the benefit of the HUMANE
SOCIETY instead of reasonably attempting to reunify lost animals with their
lawful owners via public notices and proper recordkeeping.
TURCOTTE declares that PASCO knowingly breached her fiduciary duty for
the purpose of benefiting PASCOs self-serving financial interests by selling
SMOKEY.
TURCOTTE declares that PASCO has a fiduciary duty to protect the financial
interests of HUMANE SOCIETY WATERVILLE AREA even at the expense of
its customers and employees.
TURCOTTE declares that PASCOs agency operates with a deficit budget and
are completely dependent on animal sales and private donations to support
their business activities.
TURCOTTE declares that PASCO willfully violated 33 MRSA 1051 Duty of
finder of money or goods worth $3 or more Whoever finds lost money or
goods of the value of $3 or more shall, if the owner is unknown, within 7 days
give notice thereof in writing to the clerk of the town where the money or goods
are found and post a notification thereof in some public place in said town. If
the value is $10 or more, the finder, in addition to the notice to the town clerk
and the notification to be posted, shall, within one month after finding, publish
a notice thereof in some newspaper published in the town, if any, otherwise in
some newspaper published in the county. and 1052. Taking up stray
beasts; notice Whoever takes up a stray beast shall, within 7 days, give notice
thereof in writing, containing a description of its color and its natural and
artificial marks, to the clerk of the town where such beast is taken, and shall
cause a notice thereof, containing a like description of the beast, to be posted,
and if such beast is of the value of $10 or more, to be published in the manner
provided in section 1051; otherwise he shall not be entitled to compensation for
any expenses which he may incur relative thereto. and 1053. Appraisal if
value $10 or more Every finder of lost goods or stray beasts of the value of
$10 or more shall, within 2 months after finding and before using them to their
disadvantage, procure a warrant from the town clerk or a notary public,
directed to 2 persons appointed by said clerk or notary, not interested except as
inhabitants of the town, returnable at said clerk's office within 7 days from its
date, to appraise said goods under oath. [1995, c. 227, 2 (AMD).]

52

58. TURCOTTE declares that PASCOs claim of immunity is frivolous and without

59.
60.

61.
62.

63.

64.

65.

66.

67.

68.

merit as defendants in their individual capacities and acting as agents of a

government agency with full knowledge of the law.
TURCOTTE declares that no exceptions exist to 33 MRSA 1051 et seq. for
PASCO, nor any other individual, government or private agency.
TURCOTTE declares that PASCOs agents carelessly failed to maintain
accurate private records which created a breach of their fiduciary duty in their
capacity as TURCOTTEs trustee and as an agent of the CITY OF
WATERVILLE POLICE DEPARTMENT, DIVISION OF ANIMAL CONTROL
knowingly falsifying their records for private financial gain.
TURCOTTE declares that PASCOs agents never contacted TURCOTTE in
accordance with her missing cat report filed on September 18, 2012.
TURCOTTE declares that PASCOs agents never posted any public notices or
pictures of SMOKEY on their Facebook page or anywhere else upon his arrival
at the shelter on November 12, 2012.
TURCOTTE declares that PASCO and her agents grossly and negligently
failed to give proper lawful public notice of SMOKEYs initial arrival at the
shelter effectively invoking 33 MRSA 1058. Failure to give notice;
penalty. if the person taking up such stray beast neglects to give notice to the
town clerk and to cause them to be advertised as provided, he forfeits to the
owner the full value thereof unless he delivers or accounts therefor to the
owner
TURCOTTE declares that PASCO and her agents are subject to 33 MRSA
1054. Restitution to appearing owner; money or goods. If the owner of
such lost money or goods appears within 6 months, and if the owner of such
stray beasts appears within 2 months after said notice to the town clerk and
gives reasonable evidence of ownership to the finder, the owner shall have
restitution of them.
TURCOTTE declares that PASCOs failure to fully and conscientiously comply
with all pertinent Maine statutes while acting as TURCOTTEs trustee and an
agent of the CITY OF WATERVILLE POLICE DEPARTMENT, DIVISION OF
ANIMAL CONTROL has resulted in the unlawful transfer of SMOKEY
(Shamoo) to an innocent THIRD PARTY on or about January 4, 2012.
TURCOTTE declares that PASCO, EUSTIS, and WILLIAMS cannot request
immunity under 7 MRSA 3919-A (5) because they each, as individuals, have
willfully and carelessly failed to comply with 33 MRSA 1051 - 1058 while
acting as both private citizens and government agents.
TURCOTTE declares that PASCO cannot claim any exceptions or special
reporting requirements for animal shelters, humane societies, government
officials or their agents under 33 MRSA 1051 - 1058 because none explicitly
exist.
TURCOTTE declares that PASCOs willful disregard for 33 MRSA 1051 1058 caused an unlawful transfer of SMOKEY to a THIRD PARTY unknown
to TURCOTTE.
53

69. TURCOTTE declares that her unnecessary separation from

SMOKEY/SHAMOO due to PASCO/EUSTIS/WILLIAMS actions has caused

TURCOTTE to suffer severe non-economic emotional and financial injuries.
Wherefore, Gina Turcotte submits this sworn affidavit and certifies that the
foregoing statements are true, correct and complete to the best of my knowledge,
experiences and belief.
Dated at Augusta, Maine this ___ day of May in the year 2013.
__________________________________________
Gina Turcotte
The undersigned Notary Public/Clerk certifies that Gina Turcotte did
personally execute, affirm, sign and seal the foregoing document under the penalty
of perjury as her free act and deed on this ___ day of May 2013.
_________________________________
(notary seal)

54

APPENDIX D

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STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss
GINA TURCOTTE
Claimant
v
HUMANE SOCIETY WATERVILLE AREA
Respondent

*
MEMORANDUM IN OPPOSITION TO
* RESPONDENT'S MOTION TO DISMISS
* FOR FAILURE TO STATE A CLAIM UPON
* WHICH RELIEF CAN BE GRANTED WITH
*
SUPPORTING EXHIBITS AND
INCORPORATED MEMORANDUM OF LAW

Claimant, GINA TURCOTTE, submits this Memorandum in Opposition to

Respondent's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can
Be Granted with Supporting Exhibits and Incorporated Memorandum of Law. As
grounds therefor, GINA TURCOTTE offers supporting exhibits and states as
follows:
I.

Introduction
On August 20, 2013, Claimant sent a FOAA request to Respondent, seeking
the name, address and phone number of the adopting party ("John Doe"), in
addition to all intake records, photographs, and medical records for the following
animal: (Cl.'s Compl. 9)
INTAKE DATE:
November 12, 2012
SURRENDERED BY:
LINDA ANDREWS, 26 LOUISE AVE, APT 6,
WATERVILLE
HSWA GIVEN NAME: SHAMOO
TYPE OF ANIMAL:
Male Cat, Neutered
COLOR:
Gold eyes, Grey/White med/long hair, white bib,
paws, legs
ADOPTED ON/ABOUT: January 4, 2013.
PHOTO:

Pursuant to 1 MRSA 408-A Respondent is in fact required to "acknowledge

receipt of a request made according to this section within 5 working days of receiving
the request" and "provide written notice of the denial, stating the reason for the
denial, within 5 working days of the receipt of the request".
66

Claimant has received no substantive response to her request from

Respondent and therefore filed this lawsuit on September 18, 2013.
Service of process to Director Kathleen Ross was completed in hand by Allen
Wood of the Kennebec County Sheriff's Office on December 2, 2013.
Proof of service and the original Summons were filed on December 11, 2013.
Respondent subsequently filed its motion to dismiss on December 13, 2013.
II.

Argument
A.

Respondent Misstated or Excluded Pertinent Material Facts.

1.

Respondent's counsel, Bryan B. Ward, Esq., BAR #004544, states

on page 4 in the motion to dismiss, "...HSWA - being a private
corporation - is not subject to the disclosure provisions of the Maine
Freedom of Access Act. It is not a public entity, does not participate
in public proceedings, and does not create or retain public records
within the meaning of the Freedom of Access Act."

2.

Bryan B. Ward, Esq., misstated or excluded pertinent material

facts:
a. HSWA currently has contracts with twenty three municipalities
to provide legislatively controlled government services to the
public. Exhibit A
b. HSWA filed IRS Form 990 Public Charity Status and Public
Support, which indicated HSWA "is not a private foundation
because it is...An organization which receives a substantial part
of its support from a governmental unit or the general public
described in section 170(b)(1)(A)(vi)". Exhibits B - G
c. HSWA reported 70.19% "public support percentage for 2010" on
Form 990, Schedule A, Part II, Support Schedule for
Organizations Described in Sections 170(b)(1)(A)(iv) and
170(b)(1)(A)(vi), Section C, Computation of Public Support
Percentage. Exhibits B, C, D

67

d. HSWA reported 96.01% "public support percentage for 2011" on

Form 990, Schedule A, Part II, Support Schedule for
Organizations Described in Sections 170(b)(1)(A)(iv) and
170(b)(1)(A)(vi), Section C, Computation of Public Support
Percentage. Exhibit E, F, G
e. HSWA has consistently reported "the organization qualifies as a
publicly supported organization." because it receives 33 1/3 % or
more of its support from a government unit or the general
public.
MEMORANDUM OF LAW
B.

Standards Governing Rule 12(b)(6) Motion to Dismiss

The standard of review for a motion to dismiss for failure to state a
claim upon which relief can be granted is well settled. The motion must be
decided solely based on the allegations in the Claimant's complaint. See
Fed.R.Civ.P. 12(d). The court does not decide disputed issues of fact; instead,
it must assume that all material facts in the Claimant's complaint are true.
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007). Not only
must the court accept the Claimant's allegations as true, but it also must
accept as true all reasonable factual inferences drawn from Claimant's
allegations. See Kowal v. MCI Comm'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir
1994); Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1970). Thus,
factual allegations in briefs or memoranda of law generally may not be
considered when deciding a Rule 12(b)(6) motion, particularly when the facts
they contain contradict those alleged in the complaint. Henthorn v. Dept. of
Navy, 29 F.3d 682, 688. (D.C. Cir. 1994).
C.

Maine Revised Statutes Governing Animal Shelters

7 MRSA 3936(1) Inspection and Quarantine establishes
mandatory control over Respondent's action, to wit, " The commissioner, a
state humane agent, a veterinarian employed by the State or a licensed
veterinarian at the direction of the commissioner may, at any reasonable time,
enter an animal shelter...and make examinations and conduct any recognized
tests for the existence of contagious or infectious diseases or conditions... The
commissioner may inspect animal shelters... in accordance with the sanitation
and health rules established by the department and for compliance with laws
and rules, including licensing and permitting requirements, of the
Department of Inland Fisheries and Wildlife pertaining to wildlife
importation and possession. In conducting inspections, measures established
by the department through rulemaking must be used to prevent the spread of
infectious and contagious diseases. Rules adopted pursuant to this subsection
68

are major substantive rules as defined in Title 5, chapter 375, subchapter 2A..." and "are subject to an increased level of rule-making requirements."
under 5 MRSA 8072. Legislative review of major substantive rules.
7 MRSA 3936(2) Suspension of license. indicates "The department
may, in accordance with Title 5, chapter 375, subchapter 5, revoke or suspend
a[n] animal shelter ... license if a person maintaining the ...animal shelter ...
violates any quarantine or maintains animals contrary to the rules adopted by
the department, fails to keep records required by the department or violates
any provision of the laws or rules of the Department of Inland Fisheries and
Wildlife pertaining to wildlife importation and possession."
The foundational merits of this litigation are based upon Respondent's gross
negligent failure to properly maintain statutorily required records of lost and stray
animals as reported by the lawful owner (Claimant), the surrendering party (Linda
Andrews), or the adopting party (John Doe) resulting in grossly erroneous recordkeeping behaviors effectively violating Claimant's right to due process, inter alia.
Respondent's behavior has caused Claimant to suffer severe economic and
noneconomic injury through loss of affection and therapeutic relationship, inter alia.
Claimant personally spoke with Liam Hughes, Director of Animal Welfare,
Maine Department of Agriculture, confirming Respondent is subject to control,
governance and legal inspection for accurate recording of stray and abandoned
animals, inter alia.
Supreme Court of Connecticut decided a similar case on point, in Connecticut
Humane Society v. Freedom of Information Commission, 218 Conn. 757 (1991),
clarifying, "Because legislation designed to protect animals from cruelty and neglect
is recognized as a valid exercise of the police power; 4 Am. Jur. 2d, Animals 27;
arguably, the [humane] society also performs a governmental function insofar as it
engages in the statutorily authorized activities involving the detention, shelter and
euthanasia of animals."
Washington Court of Appeals decided, in Clarke v. TCAC & CONTROL
SHELTER, 181 P. 3d 881 (2008), "To be considered an "agency, 'TCAC must qualify
as an 'other local public agency.' This term is not defined in the PDA. Telford, 95
Wash.App. at 158, 974 P.2d 886.
In Telford, Division Two of this court was asked to determine if two
organizationsthe "Washington State Association of Counties" and the "Washington
State Association of County Officials"were public entities. Id. at 152-56, 974 P.2d
886. The court in Telford adopted a four-factor "functional equivalent" balancing test
to determine if an entity is to be regarded as a public agency for purposes of the PDA:
69

(1) whether the entity performs a governmental function; (2) the level of government
funding; (3) the extent of government involvement or regulation; and (4) whether the
entity was created by the government. Id. at 162, 974 P.2d 886. Under Telford, each
of these criteria need not be equally satisfied, but rather the criteria on balance
should suggest that the entity in question is the functional equivalent of a state
or local agency. Id.
In Spokane Research, this Division saw no need to apply Telford's four-factor
test because there was "no ambiguity as to the Association's nongovernmental
status," and thus it was not subject to the PDA. Spokane Research, 133 Wash.App. at
608, 137 P.3d 120. But here, TCAC is not so obviously beyond the reach of the
PDA.[4] Thus, we engage in a Telford analysis to determine whether TCAC is an
"other local agency" subject to the PDA. Under Telford, we conclude that TCAC
is the functional equivalent of a public agency.
Function. TCAC's purpose is to perform animal control services for
the tri-cities area...It recognizes the authority of cities and counties to pass
local ordinances regulating the care and control of animals... In turn, the
statute acknowledges that cities and counties may contract with animal
care and control agencies to perform these duties... An entity becomes an
animal care and control agency when it is "authorized to enforce city or
county municipal ordinances regulating the care, control, licensing, or
treatment of animals within the city or county," or when it contracts with
the city or county as a humane society to provide those services... In any
event, an animal care and control agency "may enforce the provisions of
[chapter 16.52 RCW] only if the county or city legislative authority has
entered into a contract with the agency to enforce [those provisions]."
Former RCW 16.52.015(1) (emphasis added).
TCAC is authorized by the local government to provide animal control
services. Under former RCW 16.52.011(2)(b), it is therefore an animal care and
control agency. Individuals associated with TCAC take oaths as animal control
officers; animal control officers can only be employed by an animal care and control
70

agency. See former RCW 16.52.011(2)(c). As part of the oath, the employees of TCAC
agree to enforce the area's animal control regulations. As regulators, TCAC and its
officers execute police powers in carrying out their duties, most notably
impounding and destroying private citizens' pets. These types of acts
implicate due process concerns. See, e.g., former RCW 16.52.085 (discussing
situations in which an animal control officer does or does not need a warrant to
remove an animal from private property). The implication of police powers is
clear from the language of former RCW 16.52.015(2), which requires animal
control officers to comply with "the same constitutional and statutory
restrictions concerning the execution of police powers imposed on law
enforcement officers who enforce this chapter." Because a local government
grants TCAC the ability to execute police powers pursuant to state statute,
TCAC is performing a governmental function. Cf. Champagne v. Spokane
Humane Soc'y, 47 Wn. App. 887, 891, 737 P.2d 1279, review denied, 108 Wn.2d 1035
(1987) (humane society acting as a public entity for the purpose of the public duty
doctrine when City of Spokane contracted with it and delegated it the authority to
enforce the animal regulations); Brunette v. Humane Soc'y, 294 F.3d 1205, 1208 (9th
Cir. 2002) (noting that a humane society created by statute and holding police
powers was a state actor for the purposes of 42 U.S.C. 1983 litigation), cert. denied,
537 U.S. 1112 (2003).
But while TCAC is performing a governmental function, Telford's analysis
seems to hinge on whether the entity's duties can be delegated to the private sector.
Telford, 95 Wn. App. at 165. Although the function here was assigned to the
private sector, such delegation may only occur via a contractual
relationship between the city and the animal control agency. Former RCW
16.52.015(1). Hence, the nature of the delegation merely allows TCAC to step
into the shoes of the local government.[6] In short, while the local
government can delegate the performance authority for this public function
to a private entity, it cannot delegate away its statutory responsibility to
perform within PDA legal requirements. TCAC's performance depends on
71

its contract with the cities involved. Former RCW 16.52.015(1). Thus, TCAC is
performing a governmental function that can never be wholly delegated to
the private sector. Said another way, were we to conclude that TCAC is not
a functional equivalent of a public agency, we would be setting a precedent
that would allow governmental agencies to contravene the intent of the
PDA and the Public Records Act by contracting with private entities to
perform core government functions. All told, this factor balances in favor of
finding that TCAC is the functional equivalent of a public agency.
Government Funding. Nearly all of TCAC's operating budget comes
from public money. TCAC occupies space in a building rent-free, subsidized by the
local government with which it contracts, and it is forbidden by the terms of that
contract from engaging in any business on that premises other than its animal
control services. Thus, this factor clearly weighs in favor of application of the PDA.
Government Control. TCAC is in control of its day-to-day operations, and
maintains its own insurance. Its employees are not considered public employees and
receive no benefits from the local government. However, as noted above, there are
some government restrictions on how the government facilities can be used. In
addition, TCAC is only permitted to provide euthanasia services in a manner
approved by ACA. TCAC is also required to keep records and submit
monthly reports to ACA. Thus, there is a notable degree of governmental
control here and this factor weighs in favor of finding that TCAC is the
functional equivalent of a public agency.
Origin. TCAC was formed as a private corporation, by private
citizens, and is not an entity created by the government. Although it could
not perform its function without its relationship to the local government,
this factor weighs against PDA application.
Balancing. Construing the PDA liberally in favor of the fullest
possible public records access, we balance these aforementioned factors. On
balance, we conclude TCAC is the functional equivalent of a public agency.
While TCAC has some non-public functions and characteristics, the fact
72

that it performs a governmental function dependent upon its relationship

with the local government, receives the bulk of its funding from taxpayer
money to perform that function, and is subject to regular government
oversight, all tip the scale in favor of finding that TCAC is the functional
equivalent of a public agency.
HSWA signed a contract with Town/City of Waterville, signed by the
Municipal Town Officer and HSWA's Executive Director, stating, in part, "THIS
AGREEMENT, entered into on July 1,2013 by and between the Town/City (hereafter
called town) of Waterville, Maine and the Humane Society-Waterville Area (hereafter
called Shelter) is in effect from July 1, 2013 through June 30,2014.
By statue, ALL towns are either required to maintain an animal shelter or
otherwise provide such services with regard to stray domestic animals.
The SHELTER is hereby employed and authorized to act as an animal shelter
and is equipped to provide such services in compliance with statutory requirements.
The SHELTER will provide food, water, shelter, medical care, and/or any other
humane treatment for such domestic animals while they are in possession of the
SHELTER.
By statute, Title 7 MRSA, Section 3947,every town shall appoint one or more
Animal Control Officer(s) (hereafter called ACO). The ACO from the City of
Waterville shall transport stray and abandoned domestic animals (which shall
include cats and ferrets) to the SHELTER. Transportation must be carried out in a
humane manner, Title 7 MRSA, Section 3981. et. reg.
The ACO will ensure that sick or injured animals at large receive proper
medical attend and transport said animals directly to a licensed veterinarian.
Veterinary costs incurred for stray animals are the responsibility of the Town from
which the animal is transported unless the owner is found." Exhibits H, I
D.

Respondent Has Failed To Demonstrate That This Case Should

Be Dismissed.
Respondent's motion is based entirely on their misstatement or exclusion of
vital material facts claiming HSWA is not "a public entity, does not participate in
public proceedings, and does not create or retain public records", which is wholly
untrue and intended to mislead this court.
As wholly rebutted above and evidenced herein, HSWA does in fact qualify as
a public entity having written contracts calculated per capita with twenty three
73

Maine municipalities, receiving more than 95% of their financial support from
general public, being vastly governed by legislative control, for the purpose of
providing vital public services which are paid by the Town/City.
Respondent HSWA "is the functional equivalent of a public agency".
Therefore, because Respondent has not otherwise shown that Claimant's
complaint fails to state a claim upon which relief can be granted, Respondent's
motion must be denied and declaratory judgment under Rule 57 be entered for
Claimant as a matter of law.
III.

Conclusion
For all the reasons indicated above, this court must deny Respondent's

motion to dismiss, enter declaratory judgment that Respondent is a public agency

subject to the FOAA and order immediate disclosure of the name, address and
phone number of the adopting party ("John Doe"), in addition to all intake records,
photographs, and medical records for the following animal:
INTAKE DATE:
November 12, 2012
SURRENDERED BY:
LINDA ANDREWS, 26 LOUISE AVE, APT 6,
WATERVILLE
HSWA GIVEN NAME: SHAMOO
TYPE OF ANIMAL:
Male Cat, Neutered
COLOR:
Gold eyes, Grey/White med/long hair, white bib,
paws, legs
ADOPTED ON/ABOUT: January 4, 2013.
PHOTO:
WHEREFORE, Claimant moves this court to deny Respondent's Motion to
Dismiss For Failure to State A Claim Upon Which Relief Can Be Granted, enter a
declaratory judgment as a matter of law in Claimant's favor that Respondent is a
public agency and is subject to the FOAA, order instant disclosure of the public
records which are the subject of this action, and to order all other appropriate relief
and actual costs to bring suit.
DATED: December 30, 2013

___________________________________________
GINA TURCOTTE
41 LAMBERT AVENUE
AUGUSTA, MAINE

74

CERTIFICATE OF SERVICE
I, GINA TURCOTTE, hereby certify that on December 30, 2013 the foregoing
document was served on Respondent via first-class mail, postage prepaid.
DATED: December 30, 2013
___________________________________________
GINA TURCOTTE
41 LAMBERT AVENUE
AUGUSTA, MAINE

75

76

77

APPENDIX E
United States Constitution, Article IV, Section 2:
The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States.
United States Constitution, Article VI:
This Constitution, and the Laws of the United Statesshall be the
supreme Law of the Land; and the Judges in every State shall be bound
thereby
United States Constitution, Amendment I:
Congress shall make no lawabridging the freedom of speech
United States Constitution, Amendment IV:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated
United States Constitution, Amendment V:
No person shallbe deprived of life, liberty, or property, without
due process of law
United States Constitution, Amendment VII:
In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved
United States Constitution, Amendment IVX:
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
78

State deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
7 U.S. Code 2131 - Congressional statement of policy
The Congress finds that animals and activities which are regulated
under this chapter are either in interstate or foreign commerce or
substantially affect such commerce or the free flow thereof, and that
regulation of animals and activities as provided in this chapter is necessary
to prevent and eliminate burdens upon such commerce and to effectively
regulate such commerce, in order
(1) to insure that animals intended for use in research facilities or for
exhibition purposes or for use as pets are provided humane care and
treatment;
(2) to assure the humane treatment of animals during transportation
in commerce; and
(3) to protect the owners of animals from the theft of their animals by
preventing the sale or use of animals which have been stolen.
The Congress further finds that it is essential to regulate, as provided
in this chapter, the transportation, purchase, sale, housing, care, handling,
and treatment of animals by carriers or by persons or organizations engaged
in using them for research or experimental purposes or for exhibition
purposes or holding them for sale as pets or for any such purpose or use.
7 U.S. Code 2158 Protection of Pets
(a) Holding period
(1) Requirement
In the case of each dog or cat acquired by an entity described in
paragraph (2), such entity shall hold and care for such dog or cat for a
period of not less than five days to enable such dog or cat to be recovered
79

by its original owner or adopted by other individuals before such entity

sells such dog or cat to a dealer.
(2) Entities described
An entity subject to paragraph (1) is
(A) each State, county, or city owned and operated pound or
shelter;
(B) each private entity established for the purpose of caring for
animals, such as a humane society, or other organization that is under
contract with a State, county, or city that operates as a pound or
shelter and that releases animals on a voluntary basis; and
(C) each research facility licensed by the Department of
Agriculture.
(b) Certification
(1) In general
A dealer may not sell, provide, or make available to any individual
or entity a random source dog or cat unless such dealer provides the
recipient with a valid certification that meets the requirements of
paragraph (2) and indicates compliance with subsection (a) of this section.
(2) Requirements
A valid certification shall contain
(A) the name, address, and Department of Agriculture license or
registration number (if such number exists) of the dealer;
(B) the name, address, Department of Agriculture license or
registration number (if such number exists), and the signature of the
recipient of the dog or cat;
(C) a description of the dog or cat being provided that shall
include
(i) the species and breed or type of such;
(ii) the sex of such;
(iii) the date of birth (if known) of such;
80

(iv) the color and any distinctive marking of such; and

(v) any other information that the Secretary by regulation
shall determine to be appropriate;
(D) the name and address of the person, pound, or shelter from
which the dog or cat was purchased or otherwise acquired by the
dealer, and an assurance that such person, pound, or shelter was
notified that such dog or cat may be used for research or educational
purposes;
(E) the date of the purchase or acquisition referred to in
subparagraph (D);
(F) a statement by the pound or shelter (if the dealer acquired
the dog or cat from such) that it satisfied the requirements of
subsection (a) of this section; and
(G) any other information that the Secretary of Agriculture by
regulation shall determine appropriate.
(3) Records
The original certification required under paragraph (1) shall
accompany the shipment of a dog or cat to be sold, provided, or otherwise
made available by the dealer, and shall be kept and maintained by the
research facility for a period of at least one year for enforcement purposes.
The dealer shall retain one copy of the certification provided under this
paragraph for a period of at least one year for enforcement purposes.
(4) Transfers
In instances where one research facility transfers animals to
another research facility a copy of the certificate must accompany such
transfer.
(5) Modification
Certification requirements may be modified to reflect technological
advances in identification techniques, such as microchip technology, if the
Secretary determines that adequate information such as described in this
81

section, will be collected, transferred, and maintained through such

technology.
(c) Enforcement
(1) In general
Dealers who fail to act according to the requirements of this
section or who include false information in the certification required
under subsection (b) of this section, shall be subject to the penalties
provided for under section 2149 of this title.
(2) Subsequent violations
Any dealer who violates this section more than one time shall be
subject to a fine of $5,000 per dog or cat acquired or sold in violation of
this section.
(3) Permanent revocations
Any dealer who violates this section three or more times shall
have such dealers license permanently revoked.
(d) Regulation
Not later than 180 days after November 28, 1990, the Secretary
shall promulgate regulations to carry out this section.
42 U.S. Code 1983
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a judicial
officer for an act or omission taken in such officers judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated
or declaratory relief was unavailable. For the purposes of this section, any
82

Act of Congress applicable exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.
42 U.S. Code 12131
(1) Public entity
The term public entity means
(A) any State or local government;
(B) any department, agency, special purpose district, or other
instrumentality of a State or States or local government.
42 U.S. Code 12181
(7) Public accommodation
The following private entities are considered public
accommodations for purposes of this subchapter, if the operations of
such entities affect commerce
(F) a laundromat, dry-cleaner, bank, barber shop, beauty
shop, travel service, shoe repair service, funeral parlor, gas
station, office of an accountant or lawyer, pharmacy,
insurance office, professional office of a health care provider,
hospital, or other service establishment;
(K) a day care center, senior citizen center, homeless shelter,
food bank, adoption agency, or other social service center
establishment;
1 MRSA 402(3)
Public records. The term "public records" means any written,
printed or graphic matter or any mechanical or electronic data
compilation from which information can be obtained, directly or after
translation into a form susceptible of visual or aural comprehension,
that is in the possession or custody of an agency or public official of
83

this State or any of its political subdivisions, or is in the possession or

custody of an association, the membership of which is composed
exclusively of one or more of any of these entities, and has been
received or prepared for use in connection with the transaction of
public or governmental business or contains information relating to the
transaction of public or governmental business.
5 MRSA 4553(8) Definitions
Place of public accommodation. "Place of public accommodation"
means a facility, operated by a public or private entity, whose
operations fall within at least one of the following categories:
E. A bakery, grocery store, clothing store, hardware store,
shopping center, garage, gasoline station or other sales or rental
establishment;
F. A laundromat, dry cleaner, bank, barber shop, beauty
shop, travel service, shoe repair service, funeral parlor, gas
station, office of an accountant or lawyer, pharmacy, insurance
office, professional office of a health care provider, hospital,
dispensary, clinic, bathhouse or other service establishment;
H. A museum, library, gallery or other place of public
display or collection;
K. A day-care center, senior citizen center, homeless
shelter, food bank, adoption agency or other social service center
establishment;
and

84

N. Any establishment that in fact caters to, or offers its

goods, facilities or services to, or solicits or accepts patronage
from, the general public.
8-A. Private entity. "Private entity" means any entity other
than a public entity.
8-B. Public accommodation. "Public accommodation" means a
public or private entity that owns, leases, leases to or operates a place
of public accommodation.
8-C. Public entity. "Public entity" means:
A. The State or any local government;
B. Any department, agency, special purpose district or
other instrumentality of the State, 2 or more states or a local
government; and
C. A state, local or private commuter authority as defined
in the federal Rail Passenger Service Act, Section 103 (8).
7 MRSA 3919-A Procedure for acceptance and disposition of cats by
animal shelter
An animal shelter to which a cat is taken may accept the cat
unless the shelter is in quarantine. An animal shelter accepting a cat
shall comply with the provisions of this section.
1. Cats with identification. An animal shelter that accepts a cat with
cat identification shall make a reasonable attempt to notify the owner by
telephone or by sending a written notice within 24 hours of accepting the cat.
Except as provided in subsections 4 and 5, the animal shelter shall hold the
cat for a period of 6 days beginning on and including the day of acceptance. If
the owner claims the cat within the 6-day period, the animal shelter shall
release the cat to the owner upon payment of any municipal impoundment
fee and actual fees incurred for food, shelter and veterinary care. Upon
85

expiration of the 6-day period, ownership of the cat is vested with the animal
shelter and the animal shelter may then handle the cat as a homeless cat for
disposition in accordance with subsection 2.2. Homeless cats. When an
animal shelter accepts a cat under section 3919 and that cat does not have
cat identification, the animal shelter shall hold the cat for not less than 48
hours or, for feral cats, not less than 24 hours. After the 24-hour or 48-hour
period, the animal shelter may treat the cat as a homeless cat and may:
A. Except as provided in section 3938-A, offer the cat for
adoption, sell or give away the cat; or
B. Otherwise dispose of the cat humanely in accordance
with Title 17, chapter 42, subchapter 4.
An animal shelter may not sell or give a cat to a research facility.3.
Owner's claim after 6-day period. An owner may reacquire a cat at any time
prior to its disposition under subsection 2 upon payment of any municipal
impoundment fee and actual fees incurred for food, shelter and veterinary
care and any other reasonable fee imposed by the animal shelter.4.
Euthanasia for severely sick or severely injured cat. A humane agent, an
animal control officer or an animal shelter may authorize in writing the
immediate euthanasia of a severely sick or severely injured cat upon
determining that the following conditions are met:
A. The animal control officer of the municipality where
the cat was found has been notified or, if the cat has cat
identification, the owner of the cat has been notified; and
B. A veterinarian states in writing that the cat's recovery
from its injury or illness, given reasonable time and reasonable
care, is doubtful or that the cat presents a danger to the public.
Notwithstanding paragraphs A and B, a veterinarian may
authorize immediate euthanasia if, in the veterinarian's judgment,
there is no possibility of recovery for a severely injured or severely sick
cat.
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5. Immunity. A veterinarian, a humane agent, an animal

control officer or an animal shelter, including a person employed by an
animal shelter, is not civilly liable to the owner of a cat for the loss of
that cat resulting from actions taken in compliance with this section.
Nothing in this subsection grants to an animal shelter or person
any immunity from liability arising from the gift, sale or other
transference of a cat to a research facility in violation of subsection 2.
7 MRSA 3932-A Animal shelters
1. License necessary. A person operating an animal shelter as
defined in section 3907 shall obtain a license from the department and
is subject to rules adopted by the department. The license expires
December 31st annually or in a manner consistent with the license
provisions of the Maine Administrative Procedure Act, whichever is
later.
2. License fee. The license fee for an animal shelter is $100.
3. Temporary placement. Facilities where animals are temporarily
placed by the department are exempt from licensing requirements.
4. Conditional animal shelter license. Upon receiving a license
application for an animal shelter that does not at the time of
application hold a valid license under this section, the department
shall issue a conditional animal shelter license to an applicant who
pays the required fees and is not prohibited from obtaining a license
under section 3935. The conditional license remains in effect until the
animal shelter meets the requirements for a license under section
3936. If the animal shelter passes an inspection under section 3936
and meets all other conditions of licensure, the conditional license
must be changed to a standard license. If an animal shelter cannot
meet minimum standards within 6 months after the initial inspection,
the conditional license may be revoked or suspended by the
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department pending an administrative proceeding held in accordance

with Title 5, chapter 375, subchapter 5.
7 MRSA 3936 Inspection and quarantine
1. Inspection and quarantine. The commissioner, a state
humane agent, a veterinarian employed by the State or a licensed
veterinarian at the direction of the commissioner may, at any
reasonable time, enter an animal shelter, kennel, boarding kennel,
breeding kennel or pet shop and make examinations and conduct any
recognized tests for the existence of contagious or infectious diseases or
conditions. If the animal shelter, kennel, boarding kennel, breeding
kennel or pet shop is also used for human habitation, the person
authorized to make examinations and conduct tests must be escorted
by the owner, or the owner's agent, of the animal shelter, kennel,
boarding kennel, breeding kennel or pet shop and the examinations
and tests may be made only in those portions of the premises used as
an animal shelter, kennel, boarding kennel, breeding kennel or pet
shop. The commissioner may inspect animal shelters, kennels,
boarding kennels, breeding kennels and pet shops in accordance with
the sanitation and health rules established by the department and for
compliance with laws and rules, including licensing and permitting
requirements, of the Department of Inland Fisheries and Wildlife
pertaining to wildlife importation and possession. In conducting
inspections, measures established by the department through
rulemaking must be used to prevent the spread of infectious and
contagious diseases. Rules adopted pursuant to this subsection are
major substantive rules as defined in Title 5, chapter 375, subchapter
2-A. A veterinarian employed by the State or any licensed veterinarian
may quarantine the animal shelter, kennel, boarding kennel, breeding
kennel or pet shop, in person or by registered mail, and the quarantine
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must be maintained as long as the department determines necessary.

The decision and order for this quarantine is not considered a licensing
or an adjudicatory proceeding as defined by the Maine Administrative
Procedure Act. The commissioner shall promptly notify the
Department of Inland Fisheries and Wildlife of violations.
2. Suspension of license. The department may, in accordance
with Title 5, chapter 375, subchapter 5, revoke or suspend a kennel,
boarding kennel, breeding kennel, animal shelter or pet shop license if
a person maintaining the kennel, boarding kennel, breeding kennel,
animal shelter or pet shop violates any quarantine or maintains
animals contrary to the rules adopted by the department, fails to keep
records required by the department or violates any provision of the
laws or rules of the Department of Inland Fisheries and Wildlife
pertaining to wildlife importation and possession.
7 MRSA 3947 Animal control officers
Each municipality shall appoint one or more animal control
officers whose duties are enforcement of sections 3911, 3912, 3916,
3921, 3924, 3948, 3950, 3950-A, 3952 and 4041 and Title 17, section
1023, responding to reports of animals suspected of having rabies in
accordance with Title 22, sections 1313 and 1313-A and any other
duties to control animals as the municipality may require. A
municipality may appoint an employee of an animal shelter as an
animal control officer as long as the person meets the qualifications
and training requirements of this section.
A municipality may not appoint a person to the position of
animal control officer who has been convicted of murder, a Class A or
Class B offense or a violation of Title 17-A, chapter 9, 11, 12 or 13 or
has been convicted of a criminal violation under Title 17, chapter 42 or
has been adjudicated of a civil violation for cruelty to animals under
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chapter 739 or who has been convicted or adjudicated in any other

state, provincial or federal court of a violation similar to those specified
in this section.
Animal control officers must be certified in accordance with
section 3906-B, subsection 4. Upon initial appointment, an animal
control officer must complete basic training and be certified by the
commissioner within 6 months of appointment.
An animal control officer must attend advanced training
programs as described under section 3906-B, subsection 4 to maintain
certification. An animal control officer must have a minimum of 8
hours of training each year.
Upon appointment of an animal control officer, municipal clerks
shall notify the commissioner of the name, address and telephone
number of the animal control officer within 10 business days. In the
event the position is vacant upon termination or resignation of the
animal control officer, the municipal clerk shall notify the
commissioner within 10 business days of the vacancy.
7 MRSA 3948 Animal control
1. Control. Municipalities shall control dogs running at large.
2. Medical attention. Law enforcement officers and animal
control officers shall take a stray animal to its owner, if known, or, if
the owner is unknown, shall ensure that any injured companion
animal that is at large or in a public way is given proper medical
attention.
3. Domesticated and undomesticated animals. A municipality
shall control domesticated animals that are a cause of complaint in the
community. A municipality shall control animals that pose a threat to
public health or safety. A municipality may control undomesticated

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animals in matters on which no other department is charged by law to

regulate.
7 MRSA 3949 Animal shelter designation
Municipal clerks, annually, on or before April 1st, shall certify to
the commissioner the name and location of the animal shelter with
which the municipality has entered into a contract to accept stray
animals or have an arrangement for an animal shelter that will accept
stray animals. Animal shelters designated by the municipality under
this section must comply with commissioner rules.
A municipality may contract with an animal shelter licensed
under section 3932-A for other animal control services. A municipality
may not contract with a shelter for the performance of the duties of an
animal control officer as specified in section 3947 unless an employee
of that shelter is the appointed animal control officer for that
municipality and the duties of an animal control officer are performed
by the person so appointed.
7 MRSA 3950-A Official refusal or neglect of duty
1. Violation. A mayor, municipal officer, clerk, town or city
manager, administrative assistant to the mayor, town or city councilor,
dog recorder of unorganized territories, constable, police officer, sheriff
or animal control officer commits a civil violation if that person refuses
or intentionally fails to perform the duties imposed by:
A. This chapter;
B. Chapter 719;
C. Chapter 720;
D. Chapter 721;
E. Chapter 725; or
F. Chapter 727.
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2. Penalty. A person who violates subsection 1 commits a civil

violation for which a fine of not less than $50 and not more than $500
and costs may be adjudged.
3. Investigation. The commissioner, at the commissioner's own
instance or upon written complaint made to the commissioner by
another person, shall investigate an alleged refusal or neglect of duty
by a municipal officer.
4. Prosecution. The commissioner shall direct proceedings,
actions and prosecutions to be instituted to enforce all laws relating to
animals and to the liability of municipal officers and their agents for
failure, neglect or refusal to comply with the laws relating to animals.
7 MRSA 4019 Removal from unattended motor vehicle
1. Removal authorized. A law enforcement officer, humane
agent, animal control officer, firefighter as defined in Title 26, section
2101, first responder as defined in Title 32, section 83, subsection 13-A
or security guard licensed under Title 32, chapter 93, referred to in this
section as "authorized persons," may take all steps that are reasonably
necessary to remove an animal from a motor vehicle if the animal's
safety, health or well-being appears to be in immediate danger from
heat, cold or lack of adequate ventilation and the conditions could
reasonably be expected to cause extreme suffering or death.
2. Notice required. A law enforcement officer, humane agent or
animal control officer who removes an animal in accordance with
subsection 1 shall, in a secure and conspicuous location on or within
the motor vehicle, leave written notice bearing the officer's or agent's
name and office and the address of the location where the animal may
be claimed. A firefighter, first responder or security guard who
removes an animal in accordance with subsection 1 shall, in a secure
and conspicuous location on or within the motor vehicle, leave written
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notice bearing the person's name and the address of the location where
the animal may be claimed. The owner may claim the animal only
after payment of all charges that have accrued for the maintenance,
care, medical treatment and impoundment of the animal.
3. Immunity. An authorized person who removes an animal
from a motor vehicle pursuant to subsection 1 is immune from criminal
or civil liability that might otherwise result from the removal.
7 MRSA 4041 Animal trespass
1. Definitions.
[ 1999, c. 254, 15 (RP) .]
1-A. Trespass. An owner or keeper of an animal may not allow
that animal to enter onto or remain on the property of another or
unattended on any local, county or state road or highway after the
owner or keeper has been informed by a law enforcement officer,
authorized employee of the department or animal control officer that
that animal was found on that property or on that local, county or state
road or highway.
2. Removal. The owner or keeper of an animal is responsible, at
the owner's or keeper's expense, for removing any animal found
trespassing. An animal control officer, authorized employee of the
department or law enforcement officer may, at the owner's or keeper's
expense, remove and control an animal found trespassing if:
A. The owner or keeper fails to remove the animal after
having been notified by an animal control officer, authorized
employee of the department or law enforcement officer that the
animal was trespassing; or
B. The animal is an immediate danger to itself, persons or
another's property.

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3. Civil violation. A person commits a civil violation if an animal

owned or kept by that person is found trespassing and:
A. That person fails to remove the animal within 12
hours, or immediately if public safety or private or public
property is threatened, after having been personally notified by
an animal control officer, authorized employee of the
department or law enforcement officer that the animal was
trespassing; or
B. [1999, c. 254, 15 (RP).]
C. That person owns an animal or animals that have been
found trespassing on 5 or more days within a 30-day period or 3
or more days within a 7-day period.
4. Fines. A person who violates this section is subject to the
following fines.
A. A person who violates this section commits a civil
violation for which a fine of not less than $50 nor more than
$500 must be adjudged.
B. A person who violates this section after having been
adjudicated as having committed a violation of this section commits a
civil violation for which a fine of $1,000 must be adjudged. C. A person
who violates this section after having been adjudicated as having
committed 2 or more violations of this section commits a civil violation
for which a fine of $2,500 must be adjudged. 4-A. Restitution; court
costs and fees. In addition to fines, the court may as part of the
sentencing include an order of restitution for costs incurred in
removing and controlling the animal. When appropriate, the court may
order restitution to the property owner based on damage done and
financial loss. Any restitution ordered and paid must be deducted from
the amount of any judgment awarded in a civil action brought by the
property owner against the owner or keeper of the animal based on the
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same facts. When an owner or keeper violates this section 3 or more

times within a 90-day period, the court shall order restitution of all
costs incurred by the department in responding to a violation of this
section or assisting an animal control officer or law enforcement officer
responding to a violation of this section. Upon application of the
department, municipality or law enforcement agency enforcing this
section, the owner or keeper of the animal must also pay reasonable
court costs and attorney's fees of the department, municipality or law
enforcement agency if the department, municipality or law
enforcement agency is the prevailing party in any court proceeding.
4-B. Forfeiture. If the department, a municipality or a law
enforcement agency determines that a repeated violation of this
section by an owner or keeper of an animal jeopardizes the public
health, welfare or safety of the community, the department,
municipality or law enforcement agency may bring a forfeiture action
in the county in which the violations occurred under Title 14, section
506. In an action brought under this subsection, the burden of proof is
on the department, municipality or law enforcement agency. If a court
determines that a repeated violation of this section jeopardizes the
public health, welfare or safety of the community, the court may order
any animal that is the subject of the violation sold in a commercially
reasonable manner and apply the proceeds to any fine, fee, restitution
or cost owed by the owner or keeper under this section with any
remaining balance returned to the owner or keeper of the animal.
5. Exemption. A person is not liable under this section if, at the
time of the alleged trespass, that person was licensed or privileged to
allow the animal to be on the property.
6. Definitions. As used in this section, unless the context
otherwise indicates, the following terms have the following meanings.
A. "Animal" does not include cats.
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B. "Authorized employee of the department" means a

humane agent or any other employee of the department
designated by the commissioner to assist with compliance and
enforcement of this section.
17 MRSA 1011 Definitions
As used in this chapter, and in every law relating to or affecting
animals, unless the context indicates otherwise, the following terms
have the following meanings.
1. Act. "Act" means the Animal Welfare Act.
2. Animal. "Animal" means every living, sentient creature not a
human being.
3. Animal control. "Animal control" means control of dogs, cats,
domesticated or undomesticated animals which may be a problem in
the community and which are not controlled by any other law.
4. Animal control officer. "Animal control officer" means the
person appointed periodically by municipal officers pursuant to Title 7,
chapter 725.
5. Animal control shelter.
[ 1993, c. 657, 43 (RP) .]
5-A. Animal shelter. "Animal shelter" means a facility that
houses animals and operates for the purpose of providing stray,
abandoned, abused or owner-surrendered animals with sanctuary or
finding the animals temporary or permanent adoptive homes.
15. Humane agent. "Humane agent" means an employee of the
Department of Agriculture, Conservation and Forestry who assists in
enforcing this chapter.
15-A. Humane society. "Humane society" means a nonprofit
group or organization incorporated for the purpose of providing
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physical service directly to abused and abandoned animals, improving

the conditions of animals, providing education concerning animals or
fund-raising to promote animal welfare.
15-B. Humanely clean conditions. "Humanely clean conditions"
means that both indoor areas and outdoor enclosures are cleaned on a
periodic basis to remove excretions and other waste materials, dirt and
trash with sufficient frequency to minimize health hazards and to
provide adequately clean living conditions for the species of animal.
16. Keeper. "Keeper" means a person in possession or control of
a dog or other animal. A person becomes the keeper of a stray
domesticated animal, other than a dog or livestock, if the person feeds
that animal for at least 10 consecutive days.
17. Kennel. "Kennel" means 5 or more dogs kept in a single
location under one ownership for breeding, hunting, show, training,
field trials, sledding, competition or exhibition purposes. The sale or
exchange of one litter of puppies within a 12-month period alone does
not constitute the operation of a kennel.
18. Law enforcement officer. "Law enforcement officer" means
any person who, by virtue of his public employment, is vested by law
with a duty to maintain public order, enforce any law of this State
establishing a civil violation, prosecute offenders or make arrests for
crimes, whether that duty extends to all crimes or is limited to specific
crimes.
19. Municipality. "Municipality" means a city, town or
plantation.
17 MRSA 1021. Possession of animals
1. Possession. A state veterinarian, humane agent, sheriff,
deputy sheriff, constable, police officer, animal control officer, person
authorized to make arrests or the commissioner may apply to the
District Court or the Superior Court for authorization:
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A. To take possession of any maimed, disabled, diseased,

dehydrated, malnourished or injured animal or any animal whose
owner has abandoned or cruelly treated it and turn over the animal to
the applicant or other suitable person; or
B. To cause the animal to be disposed of humanely.

17 MRSA 1023 Investigation and reporting of cruelty

1. Investigations; reports. Law enforcement officers, animal
control officers and humane agents shall investigate alleged violations
of Title 7, chapter 739 and this chapter. The commissioner shall
maintain a record of each alleged case of cruelty to animals
investigated by a humane agent. The commissioner shall report
annually on the disposition of cases as required under Title 7, section
3906-B.
A law enforcement officer or animal control officer who
investigates a case of alleged cruelty to animals and pursues a civil or
criminal action based on that investigation shall report to the
commissioner on the final disposition of the case.
3. Cooperation between agencies. For the purposes of this
section, law enforcement officers, the commissioner or the
commissioner's designee, humane agents, a state veterinarian and
certified animal control officers may exchange information and reports
pertaining to an investigation of cruelty to animals pursuant to
subsection 4 and Title 7, section 3909, subsection 6.
4. Confidential information. The names of and other identifying
information about persons providing information pertaining to
criminal or civil cruelty to animals to the Department of Agriculture,
Conservation and Forestry are confidential information and may not
be released.
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17 MRSA 1025 Handling of animals seized or held

1. Handling of animals. No humane agent, animal control
officer, animal shelter, pound, animal care center, humane society or
veterinarian and anyone acting under their authority and having
possession of any animal by reason of his office may:
A. Provide or supply dealers, commercial kennels or laboratories
with the animal; or
B. Give, release, sell, trade, loan, transfer or otherwise provide
any live animal to any individual, firm, association, corporation,
educational institution, laboratory, medical facility or anyone else for
purposes of experimentation or vivisection.
22 MRSA 3474. Records; Confidentiality, Disclosure
1. Confidentiality of adult protective records. All department records
which contain personally identifying information and are created or obtained
in connection with the department's adult protective activities and activities
related to an adult while under the jurisdiction of the department are
confidential and subject to release only under the conditions of subsections 2
and 3. Within the department, the records shall be available only to and used
by authorized departmental personnel and legal counsel for the department
in carrying out their functions.
2. Optional disclosure of records. The department may disclose
relevant information in the records to the following persons, with protection
for the identity of reporters and other persons when appropriate:
J. The local animal control officer or the animal welfare program of the
Department of Agriculture, Conservation and Forestry established pursuant
to Title 7, section 3902 when there is a reasonable suspicion of animal
cruelty, abuse or neglect. For purposes of this paragraph, "cruelty, abuse or

99

neglect" has the same meaning as provided in Title 34-B, section 1901,
subsection 1, paragraph B.
22 MRSA 1313. Procedures for the Transportation, Quarantine,
Euthanasia and Testing of Animals Suspected of Having Rabies
2. Role of animal control officer; game warden. An animal control
officer appointed in accordance with Title 7, section 3947 receiving a report of
an animal suspected of having rabies shall ensure that the procedures
established pursuant to this section and sections 1313-A and 1313-B are
carried out. If the animal is an undomesticated animal, other than a wolf
hybrid, a game warden shall assist the animal control officer.
22 MRSA 1313-B. Civil Violation, Court Authorization for Removal and
Other Remedies
2. Court authorization for removal. When home quarantine procedures,
as described on the official notice of quarantine, have been violated, or in the
case of a wolf hybrid, when the owner fails to bring the animal to a
veterinarian for euthanasia and testing or to turn the animal over to
authorities as required by rules established pursuant to this chapter, an
animal control officer, person acting in that capacity or law enforcement
officer shall apply to the District Court or Superior Court for authorization to
take possession of the animal for placement,
3. Other remedies. In addition to filing a civil action to enforce this
section:
A. The municipality may record a lien against the property of
the owner or keeper of an animal if the person fails or refuses to
comply with an order to confine or quarantine the animal;
B. The municipal officers or their designated agent, such as the
animal control officer, shall serve written notice on the owner or

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keeper of the animal that specifies the action necessary to comply with
the order and the time limit for compliance;
C. If the owner or keeper of the animal fails to comply within the
time stated, the animal control officer must apply to District Court or
Superior Court for an order to seize the animal and make
arrangements for quarantine or euthanasia at the owner's or keeper's
expense;
29-A MRSA 2054 Emergency and Auxiliary Lights; Sirens; Privileges
2. Authorized lights. Authorized lights are governed as follows.
C. The use of amber lights on vehicles is governed by the
following.
(8) A vehicle used by an animal control officer appointed
pursuant to Title 7, section 3947 may be equipped with auxiliary
lights that emit a flashing amber light.

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