CHARLESTON – The state Supreme Court has overturned a Grant County Circuit Court order that would have resulted in the killing of a Rottweiler that possibly attacked a 2-year-old girl during a birthday party.

The court ruled on Nov. 9 that the destruction of a dog can only come about as a result of criminal proceedings and not a civil lawsuit. Justice Brent Benjamin wrote that while the law compelled the decision, the justices are “greatly troubled by this incident.”

“For a magistrate or circuit court to obtain authority to order a dog killed, the magistrate or judge must first find, upon conducting a criminal proceeding, that a crime… has been committed,” Benjamin wrote.

“This court holds that the authority to order a dog killed… stems solely from a criminal proceeding, and a private cause of action may not be brought for the destruction of a dog.”

Freddie and Elisha Jenkins brought the action in Grant County on Jan. 31, 2011. Elisha and her daughter Felicity had attended a birthday party at the home of Ron and Rhonda Durham on Sept. 18, 2010.

At approximately 10 p.m., Felicity wandered unsupervised toward an area of the property where a Great Dane mix named Runt and a Rottweiler mix named Duke were tied on separate dog chains.

Felicity was attacked, resulting in serious injuries to her head, waist, thighs and back that have required hospitalization and surgical repair.

Testimony varied on whether the Great Dane mix was the lone dog involved in the attack or whether the Rottweiler also attacked Felicity.

A police officer was called to the house, but no formal statements were taken that evening. No formal investigation has ever been conducted by a law enforcement agency, and no criminal charges have been filed against the Durhams.

The Great Dane mix was euthanized by the Durhams in the days following the attack.

The suit filed by the Jenkinses alleges the Rottweiler is vicious, dangerous and in the habit of attacking people.

A magistrate ordered the dog killed in a ruling entered March 30, 2011. The appeal followed.

The statutory language in question states: “Except as provided in section 21 of this article, no person shall own, keep or harbor any dog known by him to vicious, dangerous, or in the habit of biting or attacking other persons, whether or not such dog wears a tag or muzzle. Upon satisfactory proof before a circuit court or magistrate that such dog is vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals, the judge may authorize the humane officer to cause such dog to be killed.”

Benjamin wrote that the language does not explicitly provide a private cause of action, and that it also does not give rise to an implied private cause of action.

Justice Margaret Workman filed a dissenting opinion.

“The majority then concludes, that, because the statute is criminal in nature, the Legislature did not intend a ‘private cause of action,’” Workman said.

“However, I believe the analysis is far simpler and requires only implementation of the Legislature’s unmistakable intent and observance of the plain language of the statute.”

Workman wrote that the majority feels the statute only provides for the destruction of a dog when the owner has committed a crime.

“This remarkably unsubstantiated conclusion indicates that only the prosecuting attorney may seek the destruction of a dangerous or vicious dog and then, only if he is first successful in obtaining a criminal conviction of its owner,” Workman wrote.

“Quite simply, (the statute) does not state or even suggest any such thing. It is also a thoroughly barbaric suggestion that the Legislature intended to have an animal put to death as punishment of the animal’s owner.”

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