Rohrer v. Humane Society of Washington County

McDonald, J. This case concerns the application of a State statute designed to remedy mistreatment of animals. In particular, we must construe Maryland Code, Criminal Law Article (“CR”), § 10-615 which, among other things, authorizes an officer of a humane society to take possession of an animal from its owner “if necessary to protect the animal from cruelty” or “if necessary for the health of the animal.” Pondering laws that regulate the treatment of animals by people can provoke profound questions concerning the nature of human beings and their relationship to the natural world. 1 A statute that deputizes an officer of a private entity to seize an animal belonging to another without prior judicial process and that provides only cryptic direction concerning the consequences of that seizure raises serious constitutional questions under the Fourth Amendment, the Due Process Clause, and their analogs in the Maryland Constitution. 2 ⁶ We will not resolve those questions. Our task is more mundane. We must determine whether the circumstances under which a humane society exercised its authority under CR § 10-615 to take possession of a farmer’s animals based on allegations of animal cruelty were consistent with that statute in two respects.

We must also decide how that action may have affected the farmer’s ownership interest in the animals. The resolution of those issues in this case turns in part on the existence of a parallel criminal prosecution and the execution of a criminal search and seizure warrant involving the same animals. In late 2014, officers of the Respondent Humane Society of Washington County (“Humane Society”), together with other law enforcement officers, executed a criminal search and seizure warrant at the farm of Petitioner Daniel Rohrer. The search and seizure warrant, which was based on an affidavit of a Humane Society officer alleging abuse and neglect of animals at the farm, resulted in the seizure and removal of nearly 100 animals from Mr. Rohrer’s farm.

Acting as an agent of the State, the Humane Society placed the animals with foster farms while the animals remained in State custody. In early 2015, the Humane Society decided that, regardless of the outcome of the criminal animal cruelty charges pending against Mr. Rohrer, the seized animals should not be returned to him. Invoking its authority under CR § 10-615, the Humane Society notified Mr. Rohrer of its intent to “seize/remove” those animals. Pursuant to the same statute, Mr. Rohrer petitioned the District Court for their return.

The District Court denied Mr. Rohrer’s petition in light of the pending criminal charges. Ultimately the vast majority of the animal cruelty charges against Mr. Rohrer were disposed of by dismissal or acquittal. ⁷ The District Court found him guilty of five misdemeanor counts related to three animals, sentenced him to probation before judgment, released all of the animals from seizure under the warrant, and required him to implement a farm management plan under the supervision of the Humane Society. Although the disposition of the criminal charges released the animals from the warrant, the Humane Society retained possession of the animals, relying on the District Court’s earlier denial of Mr. Rohrer’s petition for their return under CR § 10-615. Mr. Rohrer appealed the District Court decision denying his petition for return of the animals to the Circuit Court for Washington County.

He argued that possession of the animals by the Humane Society did not satisfy the standards set forth in CR § 10-615 and that, in any event, the Humane Society had failed to follow that statute’s procedures. The Circuit Court rejected those challenges and affirmed the District Court decision. In this Court, Mr. Rohrer again raises questions about the authority of the Humane Society to act under CR § 10-615, as well as the legal status of animals seized under that law. We hold that, while the statute does not provide for seizure of an animal that is already in State custody in connection with a criminal proceeding, an officer of a humane society may notify the animal’s owner or custodian of an intent to take possession of the animal upon the animal’s release from State custody in the criminal case.

In addition, seizure of an animal under the statute need not occur contemporaneously with the alleged mistreatment of the animal. However, the temporal remoteness of the alleged mistreatment is relevant to whether it is “necessary to protect the animal from cruelty” or “necessary for the health of the animal” for the humane society to take—and retain—possession of the animal. The statute gives a humane society the authority to temporarily possess an animal when those standards are satisfied, although that ⁸ authority expires when the necessity ends. The statute does not purport to determine ownership of the animal.

I Background A. Animal Cruelty Law and Procedure Maryland Animal Cruelty Laws Under the common law, farm animals, such as horses, cattle, sheep, and pigs, were treated as a form of personal property. See City of Hagerstown v. Witmer, 86 Md. 293, 300-01 , 37 A. 965 (1897); 3B C.J.S. Animals § 3. Mistreatment of animals had legal significance only to the extent that it interfered with someone’s property interest in the animal. See S. M. Wise, The Legal Thinghood of Nonhuman Animals, 23 B.C. Envtl.

Aff. L. Rev. 471 , 525-28 & n.372 (1996); see also Maryland Code, Article 27, §§ 80-81 (1914); cf. Hurd v State, 190 Md.App. 479 , 988 A.2d 1143 (2010) (affirming conviction for malicious destruction of property based on shooting of pet dog). During the mid-nineteenth century, legislatures began to enact animal protection laws that were not based primarily on the protection of a property interest. C.E. Friend, Animal Cruelty Laws: The Case for Reform, 8 U. Rich.

L. Rev. 201 (1974). In Maryland, local governments took the lead in passing ordinances that barred abuse of animals. In 1890, the General Assembly enacted a statewide law prohibiting “torture or cruelty” with respect to animals, and classified a violation of that law as a misdemeanor. 3 Chapter 198, Laws of Maryland 1890, then codified at Article 27, §§ 63-64; see State v. Falkenham, 73 Md. 463, 466 , 21 A. 370 (1891) (holding that new statewide law superseded a local law on animal cruelty). That law defined “torture or cruelty” to “include everything whereby unjustifiable physical pain, suffering or ⁹ death is caused.” It defined “animal” to include “every living creature except men.” The State animal cruelty law has been amended and refined over the years.

It is currently codified in Maryland Code, Criminal Law Article (“CR”), § 10-601 et seq. A key provision of this subtitle is CR § 10-604, which prohibits abuse or neglect of an animal. Among other things, that statute defines criminal sanctions both for the intentional infliction of “unnecessary suffering or pain on an animal” as well as for the failure to provide the animal with sufficient food, water, space, and shelter. 4 See Silver v. State, 420 Md. 415 , 23 A.3d 867 (2011) (upholding a conviction for animal cruelty under CR § 10-604). An individual who is convicted of a charge of animal cruelty may be prohibited from “owning, possessing, or residing with an animal.” CR §§ 10—604(b)(3), 10-606(b)(3).

Role of Humane Societies in Enforcement of Animal Cruelty Law Since 1900, Maryland law has authorized members of humane societies to serve as animal control units and to help carry out the State’s laws concerning the protection of animals from abuse or neglect. Chapter 456, Laws of Maryland 1900, then codified at Article 27, § 46T (authorizing “any officer or agent of the Maryland Society for the Prevention of Cruelty to Animals or of any [similar] society” to take charge of abandoned, diseased, or disabled animals). The animal cruelty law ¹⁰ currently defines “humane society” as “a society or association incorporated in Maryland for the prevention of cruelty to animals.” CR § 10-601(d). Although a humane society is a private entity, 5 the criminal statutes concerning animal cruelty delegate to humane societies certain powers to carry out the State’s policy against animal cruelty. 6 For example, a humane society officer may arrest anyone “committing a misdemeanor that involves cruelty to an animal.” CR § 10-609.

Pertinent to this case, an officer of a humane society may also seize or remove an animal from its owner under CR § 10-615. This case concerns how the power conferred on a humane society by CR § 10-615 to take possession of an animal is to be exercised and the consequences of the exercise of that power. 7 ¹¹ B. Facts and Judicial Proceedings The Farm Mr. Rohrer owns and runs a farm in Boonsboro, Maryland. A self-described “Old MacDonald,” he raises various livestock—including cattle, sheep, goats, and chickens—for slaughter and egg production. He sells meat at farmer’s markets and participates in “farm-to-fork” programs.

At any given time, there may be several hundred animals on his farm. Raising animals for food production is his livelihood. The Investigation During the fall of 2014, the Humane Society received an anonymous call from an individual concerned about whether animals on Mr. Rohrer’s farm were adequately fed. In response, on November 19, 2014, Crystal Mowery, a field services officer with the Humane Society, conducted a drive-by inspection of the farm.

After seeing several cattle that “appeared to be thin,” Officer Mowery returned to her office and contacted Dr. Edward Wurmb, a veterinarian. They and another Humane Society officer went to Mr. Rohrer’s farm later that day for a closer inspection. Dr. Wurmb observed a number of cattle in the pasture that were “extremely thin” and “walking skeletons,” with some in “imminent danger of dying if it got cold.” 8 Officer Mowery asked Mr. Rohrer if they could examine animals inside his barn. He allowed them to look into the barn from outside, but refused to let them enter the barn without a warrant.

The Warrant Two days later, on November 21, 2014, with the approval of the State’s Attorney, Officer Mowery applied to the District ¹² Court of Maryland for á search and seizure warrant for Mr. Rohrer’s farm. In the application, she described the appearance of the cattle and the apparent lack of food for animals in the field. She alleged that these conditions established probable cause to believe that Mr. Rohrer was violating various provisions of CR § 10-604. The District Court issued the warrant.

The warrant authorized Officer Mowery and other officers to enter and search Mr. Rohrer’s farm for evidence of violations of the animal cruelty law, to seize any such evidence, to take photographs, and, at the recommendation of a veterinarian on the scene, to seize “any animal found to be deprived of nutritious food and water.” Execution of the Search and Seizure Warrant Three days later, on November 24, 2014, Officer Mowery— accompanied by other members of the Humane Society, members of the Washington County Sheriffs Department, an Assistant State’s Attorney, and Dr. Wurmb—served the warrant and conducted a search of the farm. At that time, according to the later testimony of Officer Mowery and Dr. Wurmb, the pasture was bare with no edible forage, contained numerous empty feeders that—because of the presence of weeds and moldy hay—likely had not been filled for some time, and was littered with dead animal bones and rolls of barbed wire. The barn contained bodies of dead animals lying among the live animals, a dead sheep in the hay feeder, empty water troughs, and manure and feces piled four or five feet high. In a separate, detached chicken coop, live chickens roosted inside dead chicken carcasses, and eggs were intermingled among more than six inches of animal feces.

In addition to some emaciated cows, they also discovered sheep and goats whose hooves had never been trimmed and were so overgrown that the animals could no longer walk correctly. When asked about the dead animals, Mr. Rohrer told Officer Mowery that “they lay where they die.” He admitted that it had been three or four years since a veterinarian had visited his farm. ¹³ On the basis of these observations, the Humane Society and the Sheriffs Office formally “seized” all of the animals on Mr. Rohrer’s farm under the authority granted by the warrant. The search warrant return and inventory completed by Ms. Mowery the next day listed the property taken pursuant to the warrant as “approximately” 50 cattle, 50 sheep, 4 goats, 15 pigs, and 50 chickens. However, no animals were physically removed from Mr. Rohrer’s farm that day.

Rather, they were left on the farm and Mr. Rohrer was informed that he was not to exercise any control over them. During the period between November 25, 2014 and the expiration of the search warrant on December 10, 2014, 9 the Humane Society returned to the farm, removed many of the seized animals, and relocated them to foster farms. Other animals were “released from seizure” under a written agreement between Mr. Rohrer and the Humane Society. The Agreement The agreement, dated December 12, 2014, recited that 95 animals (40 cows, 4 goats, and 51 sheep) had been removed from the farm and that the Humane Society and Mr. Rohrer had not agreed on the disposition of those animals.

It acknowledged that Mr. Rohrer retained ownership of those animals and that the Humane Society had temporary custody. The agreement further stipulated that the animals remaining on the farm were “released from seizure” and were “now under [Mr. Rohrer’s] control.” Finally, the agreement provided that Mr. Rohrer “must contain the animals on the property” and was responsible for providing “nutritious food in sufficient quantity, necessary veterinary care, proper drink, air, space, shelter, or protection from weather.” Criminal Charges A few days later, on December 15, 2014, Mr. Rohrer was charged in the District Court with 318 misdemeanor counts of animal cruelty under CR § 10-604. Case No. 2V00090540. ¹⁴ According to Case Search, the online database of the Maryland Judiciary, most of the charges were brought under CR § 10-604(a)(5), which prohibits the owner of an animal from “unnecessarily fail[ing] to provide the animal with nutritious food in sufficient quantity, necessary veterinary care, proper drink, air, space, shelter, or protection from weather.” Some of the charges were brought under CR § 10—604(a)(4), which prohibits anyone from causing or authorizing certain acts of mistreatment of an animal. 10 Unsuccessful Request for TRO In December 2014, following the execution of the search warrant and the removal of some of the animals, Mr, Rohrer filed suit in the Circuit Court for Washington County seeking injunctive relief, including a temporary restraining order (“TRO”), for return of the animals. By the time the Circuit Court conducted a hearing on his request for a TRO on December 18, 2014, the criminal charges had been filed in the District Court.

In light of the pending criminal charges and the agreement between Mr. Rohrer and the Humane Society with respect to the animals remaining on the farm, the Circuit Court declined to grant injunctive relief pending resolution of the criminal charges. Notice of Seizure Under CR § 10-615 On January 20, 2015, approximately two months after execution of the search warrant and removal of some of the animals and one month after the filing of criminal charges, the Humane Society posted a notice on Mr. Rohrer’s door stating that it had “seized/removed” the animals from his custody under CR § 10—615(b), (c), and (f). The notice also referred to those animals as “impounded from your custody.” The Humane Society posted a slightly revised version of the notice on February 5, 2015. 11 The notice referred to seizure, removal, ¹⁵ and impoundment under the statute in the past tense, apparently referencing the actions taken in November and December 2014 under the search warrant. However, Officer Mowery later testified that the Humane Society had not decided to invoke its authority under the statute until shortly before the initial notice was posted in January 2015.

She explained that, because the court had denied the TRO seeking return of the animals to Mr. Rohrer during the criminal proceedings, the Humane Society had focused on placing and caring for the animals before it sought to resolve their ultimate disposition. The January 2015 notice advised that Mr. Rohrer could file a petition for return of the animals in the District Court within 10 days of their removal pursuant to CR § 10—615(d) and that, if he chose not to avail himself of that remedy, the animals would be considered strays and disposed of according to Maryland law. 12 The notice also advised Mr. Rohrer that he was “under criminal investigation” for cruelty to animals and provided written Miranda warnings concerning his right to remain silent, to be represented by counsel, and to have counsel appointed if he could not afford a lawyer. The Petition for Return of Animals On January 30, 2015, Mr. Rohrer filed a “Petition for Return of Seized Animals” (“Petition for Return”) in the District Court, pursuant to CR § 10—615(d)(2). He argued that the seizure notice was late, that the animals remaining on the farm were well cared for, that he was being deprived of the ¹⁶ opportunity to sell certain animals for slaughter at the time of their maximum value, and that the Humane Society had no reasonable justification for holding his animals.

In particular, he argued that the Humane Society had failed to provide notice under CR § 10—615(d) at the time the animals were actually removed from his property and had not done so until two months later at a time when the animals were in the custody of the State pursuant to the search warrant. District Court Hearing on the Petition for Return A hearing on the Petition for Return was held in the District Court on February 20 and March 30, 2015. Mr. Rohrer testified and called three witnesses—a University of Maryland extension agent, a veterinarian, and a Maryland Department of Agriculture livestock inspector—to testify about the conditions of his farm around the time the animals were removed from his farm in late 2014. That testimony presented a somewhat different picture of Mr. Rohrer’s farm and the conditions of his animals from that portrayed by the Humane Society, Mr. Rohrer explained that most of the animals he acquired were being prepared for slaughter.

The extension agent, who had not previously known Mr. Rohrer, visited the farm shortly after the execution of the search warrant, but before most of the animals were removed. He opined that most of the animals were in excellent condition although some of the cattle were thin. The veterinarian, who had also visited the farm at the same time, provided similar testimony as to the condition of the animals. Officer Mowery and Dr. Wurmb testified on behalf of the Humane Society at the hearing and reiterated the information they provided in the warrant and also described their observations of conditions when the warrant was executed.

Another veterinarian testified that he had evaluated the cattle shortly after execution of the warrant and found 26 of the 40 cattle to be underweight, which he found “very concerning.” Officer Mowery testified that, although the animals were originally seized and removed pursuant to the criminal search and seizure warrant in late 2014, the decision to invoke the Hu ¹⁷ mane Society’s authority under CR § 10—615(c) was not made until shortly before January 20, 2015, when the notice was first posted at Mr. Rohrer’s farm. At the hearing, Mr. Rohrer reiterated his argument that the Humane Society had failed to provide the appropriate notice under CR § 10—615(d) at the time the animals were physically removed from the farm. Alternatively, he argued that, to the extent that the Humane Society was not required to provide that notice at the time the animals were removed because the animals had initially been seized by the State (with the Humane Society’s assistance) under a criminal search and seizure warrant, that situation had not changed at the time that the Humane Society actually provided notice under CR § 10-615, as the animals remained in State custody at that time and were not under his control. Ruling from the bench at the conclusion of the second day of the hearing, the District Court denied Mr. Rohrer’s Petition for Return, although the court lamented the “lack of guidance” in the statute as to how it was to decide the case.

The court first observed that the animals had been removed from the farm pursuant to a valid search warrant “based on the evidence that was available at the time of the removal.” The court cited the conditions on the farm in late 2014: the small size of the cattle in the field, the dead animals and manure in the bam, and the lack of sanitary water. The court did not directly address the adequacy of the timing of the subsequent notice under CR § 10-615 by the Humane Society. As to whether the animals should be returned to Mr. Rohrer, the court noted the December 2014 agreement between Mr. Rohrer and the Humane Society under which he retained many of the animals and under which the Humane Society acknowledged his ownership of the seized animals. With respect to the animals that had been removed from the farm, the court observed that they “appear to be being well taken care of’ by the Humane Society and that “the best interest of the animals” would be served by remaining in that ¹⁸ care “at this particular stage ... particularly between now and ... the hearing on [the criminal animal cruelty charges],” When Mr. Rohrer’s counsel raised the question whether he would lose ownership of the animals as a result of the court’s ruling, the District Court stated that “the statute really doesn’t say that” and pointed to the December 2014 agreement which, in the District Court’s words, “says what it says”—that Mr. Rohrer retained ownership of those animals, Mr. Rohrer promptly appealed the District Court decision to the Circuit Court for Washington County.

Criminal Trial In the meantime, while the appeal of the District Court’s denial of the Petition for Return of the animals was pending, the criminal charges proceeded to trial before a different judge of the District Court. A bench trial was held over the course of several days in May and July 2015. At the outset of the trial, the State dismissed 288 of the 818 counts. At the conclusion of the State’s case, the court granted a motion for judgment of acquittal as to six additional counts.

At the conclusion of all the evidence, the State dismissed four more counts. Of the remaining 20 counts, the District Court found Mr. Rohrer not guilty on. 15 counts. The District Court found Mr. Rohrer guilty on five counts relating to three animals but, as provided in Maryland Code, Criminal Procedure Article, § 6-220, withheld the entry of judgment and placed him on unsupervised probation before judgment for three years with respect to those counts. 13 In a probation order issued on July 22, 2015, the court added a special condition of probation that required Mr. Rohrer to comply with a farm management plan supervised by ¹⁹ the Humane Society. The probation order stated that the animals were “released from seizure”—presumably referring to seizure under the criminal search warrant—and that “any action to recover may be brought in a civil proceeding.” Mr. Rohrer apparently did not appeal this disposition of the criminal charges.

Failed Negotiations for Return of Animals After the adjudication of the criminal charges, but while Mr. Rohrer’s appeal of the District Court’s denial of the Petition for Return was still pending in the Circuit Court, the parties attempted to negotiate the disposition of Mr. Rohrer’s animals. In an email dated August 28, 2015, counsel for the Humane Society indicated his belief that the District Court’s decision on the Petition for Return was dispositive as to the ownership of the animals—ie., the denial of the petition eliminated Mr. Rohrer’s ownership interest of the animals. Nevertheless, counsel for the Humane Society offered to return some—but not all—of the animals, provided that Mr. Rohrer agreed to abide by the terms of his probation. Counsel indicated that the offer was “not negotiable,” and if not accepted within three days, all of the remaining animals would be given away.

In response to this email, on August 31, 2015, Mr. Rohrer filed a Motion for Ex Parte Emergency Relief for Release of Animals or, in the Alternative, Stay of Disposal of Animals and Request for Emergency Hearing in the District Court. The District Court granted the motion in part, and issued an order on September 1, 2015 prohibiting the Humane Society from taking any action regarding the animals “inconsistent” with Mr. Rohrer’s property rights, until the conclusion of all legal actions and appeals that involve the disposition of the animals. Because Mr. Rohrer’s appeal of the denial of his Petition for Return of the animals was still pending in the Circuit Court, the District Court declined to hold a hearing. Appeal of Denial of the Petition for Return The Circuit Court held a hearing on the appeal on December 11, 2015.

Mr. Rohrer challenged the substantive decision ²⁰ of the District Court—ie., whether the Humane Society’s possession of the animals was actually necessary for the animals’ health—as well as the procedures used by the Humane Society under CR § 10-615 and in relation to the December 2014 agreement. Among other things, Mr. Rohrer argued that the Humane Society’s invocation of its authority to remove animals under CR § 10-615 was improper because, at the time it gave him notice of a seizure under the statute, the animals were already in the custody of the State under the search warrant and there was no “necessity” to seize them at that time. The Humane Society, in response, pointed to the evidence of the conditions on Mr. Rohrer’s farm in late 2014, argued that its procedure in seizing and holding the animals was lawful, and denied any legal significance of its December 2014 agreement with Mr. Rohrer. In a written opinion dated May 6, 2016, the Circuit Court upheld the District Court’s denial of the Petition for Return.

The Circuit Court concluded that the District Court ruling “was not ‘clearly erroneous’... that the animals were being well cared-for by the Humane Society, and it was not in the best interests of the animals to return their custody to [Mr. Rohrer].” The Circuit Court did not address the fact that the District Court’s decision not to return the animals was premised in part on the fact that criminal charges related to the same animals were pending at the time of the District Court decision. By the time the Circuit Court issued its decision, the criminal charges had been resolved and the animals had been released from seizure in connection with that proceeding. It thus appears that the Circuit Court was focused on the merits of the District Court ruling at the time of that ruling. Mr. Rohrer petitioned this Court for a writ of certiorari, which we granted.

Related Pending Litigation Mr. Rohrer has brought a replevin action for return of the animals, but that action has been stayed pending the resolution of this appeal. Case No. 21-C-15-055661 (Circuit Court for Washington County). ²¹ [[Image here]] Discussion Mr. Rohrer has presented three issues for review. The first two issues concern the predicate for seizure or removal of an animal from its owner based on allegations of animal cruelty: (1) May an officer of a humane society seize an animal under CR § 10-615 when that animal is already in State custody pursuant to a search and seizure warrant? (2) Must the seizure of an animal by an officer of a humane society under CR § 10-615 be justified by conditions existing at the time of seizure, or may it be based on conditions previously observed?

The third issue concerns the application and effect of the process created by the statute for the possible return of the animal to its owner: (3) When an owner of a seized animal files a petition for return of the animal under CR § 10-615(d) and the petition is denied, how does that ruling affect the owner’s rights with respect to the animal? A. Standard of Review We have jurisdiction of this case pursuant to Maryland Code, Courts & Judicial Proceedings Article, § 12-305, as we are asked to review a final judgment of the Circuit Court on appeal from the District Court’s decision denying Mr. Rohrer’s Petition for Return of animals under CR § 10-615(d). The Circuit Court conducted its review on the record pursuant to Maryland Rule 7-113 and affirmed the decision of the District Court. When an action has been tried without a jury, as in this case, an appellate court is to review the case on both the law and the evidence.

Maryland Rule 8-131(c). The fact findings of the trial court are not to be set aside unless clearly erroneous. Id. However, the appellate court does not accord any special deference to the legal conclusions of the trial court ²² or its application of the law to the facts.

Cunningham v. Feinberg, 441 Md. 310, 321-22 , 107 A.3d 1194 (2015). A circuit court is to apply the same standard of review when it reviews a District Court decision on the record. Maryland Rule 7-113(f); see Friendly Finance Corp. v. Orbit Chrysler Plymouth Dodge Truck, Inc., 378 Md. 337 , 342-43 & nn.4-5, 835 A.2d 1197 (2003). The three issues raised by Mr. Rohrer concerning the application of CR § 10-615 are purely legal in nature.

Accordingly, we shall consider them without according deference to the decisions of the District Court or Circuit Court. B, Authority for a Humane Society to Take Possession of an Animal under CR § 10-615 To address the questions before us, it is useful first to sketch out the legal context in which they arise—in particular, the provisions, purpose, and application of CR § 10-615. 1, Statutory Text The statute provides in pertinent part 14 : § 10-616, Care of mistreated animal. (a) Court-ordered removal. If an owner or custodian of an animal is convicted of an act of animal cruelty, the court may order the removal of the animal or any other animal at the time of conviction for the protection of the animal.

(b) Seizure. (1) An officer or authorized agent of a humane society, or a police officer or other public official required to protect animals may seize an animal if necessary to protect the animal from cruelty. (2)(i) An animal that a medical and scientific research facility possesses may be removed under this subsection only after review by and a recommendation from the De ²³ partment of Health and Mental Hygiene, Center for Veterinary Public Health. (ii) The Department of Health and Mental Hygiene shall: 1. conduct an investigation within 24 hours after receiving a complaint; and 2. within 24 hours after completing the investigation, report to the State’s Attorney for the county in which the facility is situated.

(c) Impounded animal. (1) If an animal is impounded, yarded, or confined without necessary food, water, or proper attention, is subject to cruelty, or is neglected, an officer or authorized agent of a humane society, a police officer, another public official required to protect animals, or any invited and accompanying veterinarian licensed in the State, may: (1) enter the place where the animal is located and supply the animal with necessary food, water, and attention; or (ii) remove the animal if removal is necessary for the health of the animal. (2) A person who enters a place under paragraph (1) of this subsection is not liable because of the entry. (d) Notification of owner.

(1) A person who removes an animal under subsection (c) of this section shall notify the animal’s owner or custodian of: (1) the removal; and (ii) any administrative remedies that may be available to the owner or custodian. (2) If an administrative remedy is not available, the owner or custodian may file a petition for the return of the animal in the District Court of the county in which the removal occurred within 10 days after the removal. (e) Stray. An animal is considered a stray if: (1) an owner or custodian of the animal was notified under subsection (d) of this section and failed to file a petition within 10 days after the removal; or ²⁴ (2) the owner or custodian of the animal is unknown and cannot be ascertained by reasonable effort for 20 days to determine the owner or custodian.

(f) Limitations. This section does not allow: (1) entry into a private dwelling; or (2) removal of a farm animal without the prior recommendation of a veterinarian licensed in the State. CR § 10-615(a)-(f). 15 This case does not present any issue under Subsection (a) or Subsection (f) of the statute. Subsection (a) authorizes a court to order removal of an animal from its owner following a conviction for animal cruelty.

Although Mr. Rohrer was ultimately convicted of five counts of animal cruelty, the District Court did not order any animals to be taken from him as a result of those convictions. 16 Rather, it explicitly ordered that the animals were “released from seizure” in connection with the criminal case. There is also no issue under Subsection (f), which requires approval of a veterinarian to seize a farm animal and which limits the statutory authority with respect to entry in a private dwelling. It appears to be undisputed that, in connection with the execution of the search and seizure warrant, a veterinarian recommended removal of the animals and that the seizure of Mr. Rohrer’s farm animals did not involve entry into a private dwelling. Subsections (b) and (c) of the statute both relate to the predicate for seizure or removal of an animal by a humane ²⁵ society officer.

Both subsections were cited by the Humane Society in the notice of “seizure/removal” that it provided to Mr. Rohrer two months after execution of the search warrant. Those subsections thus relate to the first two questions in this appeal. Subsections (d) and (e) both concern the procedure for seeking the return of an animal that has been seized or removed under the statute. Those subsections relate to the third question before us concerning the effect of a denial of a petition for return. 2.

The Predicate for Seizure or Removal of an Animal i. “Seize” v. “Remove” v. “Impound”—Statutory Text During the course of this litigation, there has been some debate over the use of various forms of the words “seize,” “remove,” and “impound” in the statute and whether the Humane Society’s action was best described by one or the other of those verbs. There is also some confusion whether those terms are used in the statute simply as synonyms for one another or to denote a distinction to which the courts should attach significance. CR § 10-615 could be read as authorizing several different methods by which an officer of a humane society may deal with a mistreated animal. For example, Subsection (b) of the statute authorizes an officer to “seize” an animal.

Subsection (c) of the statute describes circumstances under which such an officer may “remove” an animal. Subsection (c) also refers to an “impounded” animal, and both Mr. Rohrer and the Humane Society have asserted, at times, that the Humane Society had “impounded” Mr. Rohrer’s animals under the statute, rather than “seized” them. The statute does not define these words. In order to answer the questions before us about the predicate for taking action under Subsections (b) and (c), it is worth clarifying whether these verbs refer to the same action or not.

We can distinguish the significance of “impound” with a careful reading of the statutory text. As is evident, a form of that word—“impounded”—appears only in Subsection (c)(1) as ²⁶ one of three participles describing the location and condition of an animal prior to action by a humane society officer— “impounded, yarded, or confined without necessary food, water, or proper attention ..,. ” The term does not refer to the action taken by a humane society officer in response to those conditions. Thus, strictly speaking, at least insofar as CR § 10-615 is concerned, the statute does not authorize a humane society officer to “impound” an animal, but rather to rescue an “impounded” animal in certain circumstances. The inclination to refer to a humane society as “impounding” an animal under CR § 10-615 is understandable.

A reader of CR § 10-615 might be misled by the catchline for Subsection (e) (“Impounded animal”), and assume that it expresses a parallel meaning to the catchlines for Subsection (a) (“Court-ordered removal”) and Subsection (b) (“Seizure”). It may also be that the notion that a humane society “impounds” an animal under Subsection (c) has arisen because that verb is used in other statutes to refer to an action taken by an individual or an animal control unit that captures a stray animal. See CR § 10-617 (detailing procedures for an animal control unit to dispose of domestic animals of unknown ownership that have been “impounded” by the unit); 17 AG § 3-603 (authorizing the owner of an “enclosure” to “impound” a stray animal that trespasses on the enclosure). The term “impound” thus has no special significance for resolution of the issues in this case under CR § 10-615.

However, the terms “seize” and “remove” are both used in the statute to describe actions that may be taken by an officer. Subsection (b)(1) of the statute authorizes an officer to “seize” an animal “if necessary to protect the animal from cruelty.” In describing special procedures for the seizure of an animal from a research facility, Subsection (b)(2) appears to use the verb “remove” as a synonym for “seize.” In addition, Subsection (c) authorizes an officer to “remove” an animal in circumstances seemingly similar to those described in Subsection ²⁷ (b)(1)—when the action is “necessary for the health of the animal.” In the context of the rest of Subsection (c), “remove” appears to refer to a seizure of an animal that is already confined in some way, as opposed to running free. An excursion into its legislative history confirms that the two terms are essentially used as synonyms. ii. “Seize” v. “Remove”—legislative history Most of the legislative enactments that created the provisions of CR § 10-615 pertinent to this case occurred before the General Assembly regularly compiled and preserved bill files. While we lack some of the legislative materials typically referenced for construing more recent legislation, what does exist is informative as to the development of CR § 10-615. 1955—Original version of the statute The predecessor of CR § 10-615 was first enacted in 1955. 18 Chapter 278, Laws of Maryland 1955, then codified in Article 27, §§ 86, 87.

The original proposal went through more than one iteration before it was passed. Proposed legislation. As it was originally introduced, the 1955 bill would have authorized an officer of a humane society or a police officer to “take possession” of an animal if necessary “to protect [the] animal from neglect and/or cruelty.” Senate Bill 284 (1955). The bill would also have authorized an officer to provide necessary sustenance to an animal “impounded, yarded, or confined ... without necessary food, water or proper attention” or to remove the animal from that location, if necessary “for the health of the animal.” Id.

The bill provided that the officer would not be liable for entering ²⁸ the property. Id. “In all cases” the owner or custodian of the animal, if known, was to be “immediately” notified of the officer’s action. Id. If the owner or custodian was not known and could not be located “with reasonable effort,” the animal was to be treated as a stray.

Id. Finally, the bill provided that the owner of the animal would be responsible for the expenses incurred by the humane society in caring for the animal and that the humane society could recover that debt by selling the animal after obtaining a judgment for that purpose. Id. Amendments.

As the bill proceeded through the Legislature, it was amended in several key respects that appear to reflect a concern for the property rights of the owner or custodian of the animal. First, the bill was amended to limit the general authorization for an officer to “take possession” of a mistreated animal only to situations where the owner or custodian had been convicted of animal cruelty. See Chapter 278, Laws of Maryland 1955. The authorization for an officer to enter property and remove an animal that was confined without proper sustenance was limited to circumstances when the owner or custodian “cannot be found.” Id.

Another amendment further limited the officer’s authority to enter on property, and the corresponding immunity from liability—that amendment provided that the statute did not authorize entry into a “private dwelling.” Id. Apparently in light of the fact that entry on property for removal of a mistreated animal was now premised on the fact that the owner could not be found, another amendment eliminated the requirement for immediate notification of the owner, but instead required notification if the owner was “subsequently located.” Id. A related amendment clarified that the “reasonable efforts” to locate an absent or unknown owner should continue for 30 days before the animal would be considered a stray. Id.

Enacted statute. As amended and ultimately passed, the original 1955 version of the statute read as follows: 86. Whenever the owner or custodian of an animal is convicted of any act of cruelty thereto and subsequently it becomes necessary, in order to protect said animal from further neglect and/or cruelty, any officer of an animal ²⁹ humane society or any police officer may take possession of it When an animal is impounded, yarded, or confined, and continues without necessary food, water or proper attention, and the owner or custodian thereof cannot be found, any officer of an animal humane society or any police officer may enter into and upon any place in which the animal is impounded, yarded, or confined, and supply it with necessary food, water, and attention, so long as it there remains, or, if necessary for the health of the animal, may remove such animal, and not be liable to any action for such entry. In all cases the owner or custodian of such animal, if subsequently located shall be notified of such action by the person taking possession of the animal.

If the owner or custodian continues to be unknown and cannot with reasonable effort be ascertained for a period of thirty days, such animal shall be held to be an estray and be dealt with as such, provided however, that nothing in this section shall be construed as permitting the entry into a private dwelling. 87. The necessary expenses for food and attention given to an animal under the preceding section, may be collected from the owner thereof, and the animal shall not be exempt from levy and sale upon execution issued upon a judgment therefor. Chapter 278, Laws of Maryland 1955, codified at Article 27, §§ 86, 87 (1955) (emphasis added). The statute thus allowed for separation of an animal from its owner or custodian by a humane society officer or police officer in two situations: (1) an officer could “take possession” of the animal upon the conviction of the owner or custodian of animal cruelty if there was a need to protect the animal from further abuse or neglect and (2) an officer could “remove” an animal that was “impounded, yarded, or confined” without necessary food, water, or care when the owner could not be found and it was necessary to remove the animal to provide those necessities; in such a case, the officer would not be liable for trespass.

In both instances, the statute appeared to leave it to the judgment of the officer as to whether the requisite conditions of abuse or neglect existed. The statute ³⁰ further provided that “[i]n all cases” the officer “taking possession” of the animal was to notify the owner or custodian of the animal. Thus, removal of an animal from a place of confinement was simply one specific way in which an officer could, pursuant to the statute “take possession” of a mistreated animal from an owner or custodian who could not be located. Although the 1965 statute required notification of the owner or custodian, it was silent on whether—or how—that individual could retrieve the animal.

Nor did the statute purport to address the effect of a seizure on ownership of the animal, if the owner was known, although it appeared to regard the animal as property of the owner that was subject to levy and execution to reimburse the humane society for its expenses. 19 196S amendment—court order upon a conviction A few years later, in 1963, the General Assembly amended the provision predicated upon a conviction of animal cruelty to confer discretion on the court—as opposed to the officer—to order removal of the animal from its owner or custodian at the time of conviction. If the court elected not to do so at the time of conviction, the statute continued to allow an officer to “take possession” of the animal at a later time, if necessary to ³¹ protect the animal from further neglect or cruelty. Chapter 718, Laws of Maryland 1963. 20 The statute continued to provide for removal of confined animals when necessary and for notification of the owner or custodian “in all cases," but remained silent on any process for return of the animal or the effect of the officer’s action on an individual’s ownership interest in the animal. 1975 amendment—extending basis for removal and adding return procedure In 1976, the General Assembly amended the statute in four respects significant to this case. Chapter 716, Laws of Maryland 1976.

Those amendments enhanced the authority of an officer to take possession of a mistreated animal, further defined the process to be accorded the owner of the animal, and established a special condition for seizure of an animal from a farmer, First, the general authority of an officer to “take possession” of an animal no longer depended upon the prior conviction of the owner or custodian, but was authorized “whenever it becomes necessary to protect any animal from neglect or cruelty.” Second, the 1975 amendment expanded the circumstances under which an “impounded, yarded, or confined animal” could be removed from that location by an officer. While such an action could still be premised on a lack of “necessary food, water or proper attention,” an officer could now also take action if the animal was otherwise “cruelly treated or neglected.” And this authority was no longer limited to situations where the owner could not be found. Third, the 1975 amendment provided, for the first time, some direction in the statute with respect to the content of the notice to an owner or custodian and the procedures for seeking return of an animal. It reduced the requisite period for a reasonable search for an unknown owner or custodian from 30 days to 20 days.

It directed that the owner or ³² custodian be provided notice not only of the fact that the officer had taken possession of the animal, but also of “any administrative remedies.” If no administrative remedy was available, the statute now created its own judicial remedy—it authorized the owner or custodian to file “within ten days, ... a petition for return of the animal in the district court of the county in which the removal occurred.” If the owner or custodian failed to file such a petition, the animal would be regarded as a stray and disposed of accordingly. 21 Fourth, the 1975 law also added a special condition for removal of a farm animal—such an animal could not be removed without the recommendation of a licensed veterinarian. 22 ³³ The statute continued to provide that a humane society could collect from the owner the expenses of caring for an animal and that the animal was subject to levy and sale upon execution of a judgment for those expenses. Article 27, § 68 (1976). Over the next few decades, the law underwent several other minor revisions not pertinent to our discussion. 23 2002—Code Revision In 2002, the animal cruelty laws were recodified as part of the new Criminal Law Article and the provisions concerning seizure and removal of an animal were largely codified in CR § 10-615. Chapter 26, Laws of Maryland 2002.

The revisor’s note to that revision indicates, as is typically the case with code revision, that CR § 10-615 is “new language derived without substantive change” from the prior version of the statute. It is notable, however, that the provision concerning levy and sale of an animal by a humane society to cover its expenses, which had always been tethered to the predecessor of CR § 10-615, was now incorporated in a different statute concerning disposal of domestic animals by an animal control unit. See CR § 10-617(d)(3). As explained later in this opinion, this may have been a drafting error by the code revisors.

See footnote 38, below. ³⁴ The statute has not undergone any significant amendment since that time. 24 iii. Summary Prior to the 2002 recodification, the statute authorized certain persons—“an officer or authorized agent of a humane society, or a police officer or other public official required to protect animals”—to “take possession” of an animal “[whenever it becomes necessary, in order to protect [the animal] from neglect or cruelty.” As the revisor’s note indicates, this provision became OR § 10—615(b)(1), which states that those same persons 25 have the authority to “seize” an animal “if necessary to protect the animal from cruelty.” Therefore, code revision simply substituted the verb “seize” for “take possession of’ and “seize,” as used in Subsection (b) (1), means “take possession.” The focus of Subsection (c) of the statute is primarily to authorize entry into an area where a mistreated animal is “impounded, yarded, or confined” without subjecting the officer or other person assisting the officer (such as a veterinarian) for liability for trespass for that entry. This