Toni Sue Stacey v. Commonwealth of Virginia addresses an issue that is normally confined to the general district courts and which is, perhaps ungraciously given the deep emotions that are often involved, colloquially known as a “doggie death penalty case.” The disposition of dangerous animals is a serious matter, and even more so when it involves criminal charges against the dog’s owner. Stacey is the owner of Niko, a dog that previously had been designated as dangerous pursuant to Code § 3.2-6540 of the Comprehensive Animal Care Act after Niko attacked another dog. Niko subsequently attacked and killed a domesticated cat, which led to a criminal charge against Stacey under the same statute, which defines several offenses that can occur as a result of the owner of a dog previously declared as dangerous not following the court’s order with respect to future control of the animal, either negligently or maliciously, which can range from a Class 2 misdemeanor to a Class 6 felony.
Stacey was convicted in 2015 of a misdemeanor violation of Code § 3.2-6540 and sentenced to 90 days suspended on condition that Niko be euthanized. Stacey appealed this conviction, challenging only the sufficiency of the evidence, and her appeal was denied. Before the euthanizing of Niko was carried out, however, Niko’s co-owner (who apparently had not been charged with an offense) filed a civil action which involved the ownership of the dog and obtained a stay on the euthanizing of Niko.
When the stay was lifted in 2019, Stacey sought to forestall the euthanization order by asserting that the circuit court lacked the authority to order Niko to be put to death, asserting that the disposition of a dangerous dog is under the authority of the local animal control office pursuant to Code § 3.2-6562. The circuit court denied her motion and Stacey appealed.
Some readers may be wondering, “How can she appeal the judgment again? She already had an appeal in the criminal case.” The answer, of course, is that her motion attacked the jurisdiction of the circuit court, and lack of jurisdiction renders a judgment void. A void judgment can be attacked anywhere, anytime, and the decision on that issue can be appealed.
So, did the Court of Appeals address the merits of her Code § 3.2-6562 argument? No, because her challenge, which was procedurally proper, was based on a flawed interpretation of the proceedings in the circuit court. The circuit court’s jurisdiction to order the euthanizing of Niko did not arise from the CACA (yes, the abbreviation of the Comprehensive Animal Care Act is “caca”), but from Code § 19.2-303, which grants circuit courts the authority to suspend a criminal sentence on a condition of probation “as the court shall determine.”
The Court of Appeals concluded that because Tracey did not challenge the terms of the suspension of her sentence in her first appeal, it became the law of the case. Thus, her appeal was not a permissible attack on the court’s jurisdiction, but an impermissible collateral attack on the terms of her sentence, which had already been upheld in the prior appeal.
Astute readers will have noted that, just like the never-ending process of appeal in human death penalty cases, Tracey has managed to give Niko six to seven additional years of life while the two appeals and the stay in the civil suit have worked their way through the judicial system. It is even likely that Niko is now approaching an age when being “put down” might be considered a mercy.