Smiley DNA test issue postponed by judge

Smiley - File photo
— image credit: File photo

The old adage, “rules are meant to be broken,” does not apply to Island County Superior Court, as attorney Adam Karp discovered Monday.

Karp was seeking more information on Smiley, a mixed breed dog scheduled to be euthanized by the Whidbey Animals’ Improvement Foundation, also known as WAIF. Karp, a Bellingham attorney, was hired by Freeland residents Barbara Moran and Robert Baker, who are trying to adopt Smiley even though WAIF maintains that he is a danger to the public.

Judge Vickie Churchill refused to hear Karp’s motion to expedite discovery because he did not personally contact WAIF’s attorney, Mark Theune of Oak Harbor, when he filed the motion.

Instead, Karp said that he faxed the papers to Theune two weeks ago.

“At no time did Mr. Karp get on the phone with me,” Theune said, citing a court rule that requires the filing attorney to contact the other party’s lawyer, either in person or by phone.

“These rules are not discretionary. They are mandatory,” he said. “It would have been an easy thing for him to call me.”

Karp filed the motion to speed up the legal process. He already requested all of WAIF’s correspondences with Moran, Baker and donors, access to Smiley for DNA testing and WAIF’s 990 and 990-EZ forms. The DNA testing is sought to determine if Smiley is part pit bull. The complainants claim that WAIF is more likely to euthanize pit bulls than other breeds.

But Theune had 30 days to respond, which would have been too late for Karp to review the materials and submit evidence for the case, which is scheduled for hearing Dec. 23.

If Churchill had heard the motion Monday, she may have allowed Karp access to the dog for genetic testing, and may have asked WAIF to provide the documents; however, Karp did not follow the court rules, which called for notification by phone or in person.

In light of Churchill’s decision, Karp may request a new hearing for next week. Normally, there is a required 12-day period between the filing and the hearing; however, Karp said motions can be filed on “shortened time,” meaning that the 12-day requirement may not apply.

“I anticipate adding claims for breach of contract, estoppel, and violation of the Consumer Protection Act,” Karp wrote in an email.

If WAIF loses this battle, Theune said, it could open the floodgates for all kinds of claims regarding WAIF’s formal policies on adoption and euthanasia.

WAIF, which runs animal shelters in Island County and Oak Harbor, is a “minimal kill” operation, meaning it only euthanizes unwanted pets considered dangerous or otherwise unadoptable. According to WAIF records, 47 of the 330 shelter dogs, just over 14 percent, and 11 of the 296 shelter cats, almost 4 percent, were euthanized in 2007.

“It’s a very dangerous and slippery slope to start waiving WAIF’s policy,” Theune said.

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