Excessive dog barking (court case)

Connecticut Appellate Decisions

STATE v. ACKER, 81 Conn. App. 141 (2004) STATE OF
CONNECTICUT v. FREDERICK ACKER. (AC 23407). Appellate
Court of Connecticut.

Dranginis, West and Hennessy, Js.

Syllabus

The defendant operator of a commercial dog kennel, who had
been charged in nineteen infraction complaints with
nuisance as a result of excessive dog barking at the
kennel, filed a motion to dismiss the charges. The trial
court granted the motion, concluding that the state did
not have sufficient evidence to prove, pursuant to the
applicable statute (§ 22-363), which specific dog
or dogs had engaged in the excessive barking. From the
judgments rendered thereon, the state, on the granting of
certification, appealed to this court. Held that the trial
court improperly granted the motion to dismiss; requiring
the state to identify specifically the offending dog or
dogs under § 22-363 would render that statute
unenforceable under circumstances such as this, where it
was unclear which dog or dogs at the defendant’s kennel
had engaged in the excessive barking, and the legislative
history of § 22-363 did not support the
defendant’s Page 142 contention that such a requirement
was necessary in any prosecution under the statute.

Argued October 16, 2003.

Officially released January 20, 2004.

Procedural History

Nineteen infraction complaints charging the defendant with
nuisance as a result of his dogs’ excessive barking, brought
to the Superior Court in the judicial district of
Fairfield, geographical area number two, where the court,
Fischer, J., granted the defendant’s motion to dismiss and
rendered judgments thereon, from which the state, on the
granting of certification, appealed to this court.
Reversed; further proceedings.

Timothy J. Sugrue, senior assistant state’s attorney, with
whom, on the brief, were Jonathan C. Benedict, state’s
attorney, Mary E. Card, senior assistant state’s attorney,
and Robin S. Schwartz, former deputy assistant state’s
attorney, for the appellant (state).

Michael T. Meehan, for the appellee (defendant).

Opinion

DRANGINIS, J.

The dispositive issue in this appeal is whether, in a
prosecution under General Statutes § 22-363,[fn1]
also known as our “nuisance dog” statute, the state must
prove the identity of the specific dog or dogs causing the
nuisance. We hold that it does not and, accordingly,
reverse the judgments of the trial court.[fn2] Page 143

The court found the following facts. The defendant,
Frederick Acker, is the operator of a commercial kennel
known as the Animal Adoption Network, Inc. The kennel is
located in a residential neighborhood in Monroe, is
licensed to board fifty dogs and has harbored up to thirty
dogs at various times. The defendant lives in a house on
the property and supervises the daily operation of the
kennel.

From 1999 to 2001, more than 130 complaints were lodged
against the kennel for excessive dog barking. The state
charged the defendant with nineteen separate counts of
nuisance. In July, 2002, the defendant filed a motion to
dismiss the charge in Docket Number CR 171445, which the
parties agreed would control the disposition of the other
files. On August 15, 2002, the court granted the
defendant’s motion to dismiss on the ground that the state
did not have sufficient evidence to prove which specific
dog or dogs had engaged in excessive barking. This appeal
followed.

“Statutory construction is a question of law and therefore
our review is plenary. . . . [O]ur fundamental objective is
to ascertain and give effect to the apparent intent of the
legislature. . . . In seeking to discern that intent, we
look to the words of the statute itself, to the legislative
history and circumstances surrounding its enactment, to the
legislative policy it was designed to implement, and to its
relationship to existing legislation and common law
principles governing the same general subject matter.”
(Internal quotation marks omitted.) Doe v. Rapoport, 80
Conn. App. 111, 119, 833 A.2d 926 (2003).

“A statute is enacted as a whole and must be read as a
whole rather than as separate parts or sections. . . .
Similarly, when the court engages in statutory analysis, it
consider[s] the statute as a whole . . . [and reconciles]
its . . . parts . . . to render a reasonable Page 144
overall interpretation.” (Citation omitted; internal
quotation marks omitted.) Esposito v. Waldbaum’s, Inc., 78
Conn. App. 472, 478, 827 A.2d 747 (2003).

In interpreting § 22-363, we start by examining the
language of the statute, which provides in relevant part
that “[n]o person shall own or harbor a dog or dogs which
is or are a nuisance by reason of . . . excessive barking .
. . [or] is or are a source of annoyance to any sick person
residing in the immediate vicinity. . . .” (Emphasis
added.) The first sentence of the statute, by its terms,
prohibits human conduct, that is, the owning or harboring
of a nuisance dog or dogs. It confirms the common-law
recognition that dogs that are not properly controlled by
their owners or keepers can be a nuisance. See Herbert v.
Smyth, 155 Conn. 78, 81, 230 A.2d 235 (1967).

By utilizing the ancient grammar school exercise of
diagramming a sentence, one must conclude that the word
“person” is the subject of the sentence, and that the words
“own” and “harbor” are the verbs. The words “dog” or “dogs”
are the direct object of the verbs, and the phrase, “which
is or are a nuisance by reason of . . . excessive barking,”
is a restrictive clause modifying the direct object, that
is, which dogs may not be owned or harbored, i.e., dogs
that are a nuisance because they bark excessively. The
sanction of restraining or disposing pertains only to a dog
or to dogs that are a nuisance due to excessive barking, as
required by Scudder v. Greenwich, 127 Conn. 71, 14 A.2d 728
(1940).[fn3] The statute Page 145 recognizes the right of
neighbors to the peaceful enjoyment of their property by
prohibiting a person from owning or harboring a dog or dogs
that bark excessively. The statute, however, may not be
enforced to interfere with the property rights of a dog
owner with respect to a kennel of properly licensed dogs.
Id., 74.

The statute requires that we distinguish between dogs that
bark and dogs that bark so much that they become a
nuisance. It does not mean that the offending dog must be
identified as Fido, Fifi or Filly.[fn4] To require the
identification of a dog by name, license tag number or any
other method of specific identification would render the
statute unenforceable in instances such as this. We will
not presume that the legislature enacts meaningless
legislation, nor will we construe a statute in such a
manner to render it meaningless. See State v. Gibbs, 254
Conn. 578, 602-603, 758 A.2d 327 (2000). For example, an
indoor kennel or one surrounded by vegetation would make it
impossible to see the dogs, much less identify the
offending dogs. Enforcement of the statute would be
rendered impossible if we were to construe the statute to
require the specific identification of the nuisance dog or
dogs.

The state argues that the defendant improperly relied on
the legislative history of § 22-363 to support his
contention that in any prosecution pursuant to the statute,
the state should identify the specific dog or dogs causing
Page 146 a nuisance. After examining the legislative
history, we agree with the state.

Section 22-363 was enacted in 1925 and was amended, most
notably for our analysis, in 1953[fn5] and 1969. The 1953
amendment added the requirement that all offending dogs be
specifically identified, but created an exemption to that
requirement for kennels. Following a minor change in 1957,
the statute underwent a major revision in 1969, resulting
essentially in the current version of § 22-363.
Among other things, the legislature deleted the specificity
requirement, thus making the exemption for kennels
unnecessary. Because the legislative history is silent as
to the legislature’s intent concerning those deletions, the
defendants cannot rely on it to support a contrary
interpretation. See Spears v. Garcia, 263 Conn. 22, 29, 818
A.2d 37 (2003).

Accordingly, the defendant’s “[r]eliance on [the]
legislative silence is misplaced. It is a basic tenet of
statutory Page 147 construction that we rely on the intent
of the legislature as that intent has been expressed. . . .
Indeed, to rely on the absence of legislative history . . .
would turn the process of statutory construction on its
head. More importantly, we would be exceeding our
constitutional limitations by infringing on the prerogative
of the legislature to set public policy through its
statutory enactments.” (Citations omitted; internal
quotation marks omitted.) State v. Reynolds, 264 Conn. 1,
79, 836 A.2d 224 (2003).

The judgments are reversed and the case is remanded for
further proceedings in accordance with law.

In this opinion the other judges concurred.

[fn1] General Statutes § 22-363 provides: “No person
shall own or harbor a dog or dogs which is or are a
nuisance by reason of vicious disposition or excessive
barking or other disturbance, or, by such barking or other
disturbance, is or are a source of annoyance to any sick
person residing in the immediate vicinity. Violation of any
provision of this section shall be an infraction for the
first offense and such person shall be fined not more than
one hundred dollars or imprisoned not more than thirty days
or both for each subsequent offense and the court or judge
may make such order concerning the restraint or disposal of
such dog or dogs as may be deemed necessary.”

[fn2] The trial court granted the state’s motion to appeal
pursuant to General Statutes § 54-96.

[fn3] The trial court relied on Scudder v. Greenwich,
supra, 127 Conn. 71, to find that the statute required the
defendant to identify the specific dog or dogs that were
barking. We conclude that Scudder is instructive in
preventing the arbitrary seizure and disposal of a dog or
dogs, but that it does not impose a requirement on the
state to identify the offending dog or dogs to prove a
violation of General Statutes § 22-363. Scudder is
distinguishable both procedurally and substantively from
this matter. In Scudder, after a hearing to resolve
complaints lodged against the plaintiffs’ licensed kennel,
the town selectmen ordered that the kennel be limited to
harboring only ten dogs older than three months. The trial
court enjoined the enforcement of the order because the
numerical limit was arbitrary and exceeded the selectmen’s
statutory authority. Id., 73. Our Supreme Court upheld the
ruling of the trial court, finding that “the order, under
the statute, must concern a specific dog or dogs is the
only reasonable conclusion.” Id., 74. It left to the
complainants, however, the option to redress their claim of
nuisance under the common law.

[fn4] See Commonwealth v. Ferreri, 30 Mass. App. 966, 968,
572 N.E.2d 585 (1991), a similar case, in which the court
stated: “It was not incumbent upon the Commonwealth to show
that the dogs in the defendant’s possession on the dates of
the complaints were identical in being and number to the
dogs which were the subject of the removal order.”

[fn5] General Statutes (1953 Rev.) § 1849d provides:
“If any person makes complaint in writing to the selectmen
of a town, a borough warden or the chief of police of a
city that any dog or dogs owned or harbored within such
town, borough or city is or are a nuisance by reason of
vicious disposition or excessive barking or other
disturbance, or that any such dog or dogs, by such barking
or other disturbance, is or are a source of annoyance to
any sick person residing in the immediate vicinity, such
selectmen, borough warden or chief of police shall
investigate such complaint and may make such order
concerning the restraint or disposal of such dog or dogs as
may be deemed necessary. Any person owning or harboring
such dog or dogs who fails to comply with such order shall
be fined not more than twenty-five dollars or imprisoned
not more than thirty days or both, and the dog warden
having jurisdiction may, after notice to the owner, capture
and confine or kill such dog or dogs or return it or them
to its or their owner or harborer, as may be directed by
such selectmen, borough warden or chief of police. This
section shall apply only with respect to a dog or to dogs
individually and specifically identified in such complaint
or order, provided such requirement of identification shall
not apply in the case of any kennel when, on complaint,
notice and hearing, such selectmen, borough warden or chief
of police finds that such identification cannot be had and
that the public health and safety is endangered by reason
of the maintenance of such kennel.” (Emphasis added.)