It’s not murder, it’s Smiley
February 2, 2009 · Updated 10:20 AM
Smiley’s saga drew an unusually large number of people to Island County Superior Court in Coupeville Thursday, all interested in Barbara Moran and Bob Baker’s efforts to spare the dog from euthanasia.
“Often we don’t receive this many people unless it’s a very bad murder case,” Island County Superior Court Judge Vickie Churchill told the audience of more than 40 people and one dog in her courtroom.
But the case isn’t about a murder, it’s about Smiley, a mixed-breed dog that was surrendered to the Whidbey Animals’ Improvement Foundation Coupeville shelter almost two years ago by his original owner, Bernard Perez. Since then, staff deemed the dog “aggressive” and ordered the dog to be euthanized on Nov. 13.
A Nov. 12 ruling by Churchill momentarily suspended the dog’s impending euthanasia by granting a temporary restraining order.
At the end of the hearing Thursday, Churchill put off making decisions on several pre-trial legal issues for a week.
“We as a nation love our pets,” she said. “So this is a very important case for you all and I realize that.”
“This is the date that the temporary restraining order expires, and I’ve not got the decision ready as to how I’m going to rule,” Churchill said.
She set a new trial date of Feb. 12 at 3 p.m. and extended the no-euthanasia order until then.
The audience remained silent throughout the 90 minute hearing, with the exception of a scoff made by Moran when WAIF’s lawyer, Mark Theune, mention that she and her husband are from California.
Adam Karp, the Bellingham animal law attorney who represents Baker and Moran, asked the judge to extend the temporary restraining order and remove Smiley from the shelter until a final decision is made in the case.
“This lawsuit isn’t about trying to shut them down. This lawsuit is about a single dog,” Karp told the judge.
WAIF’s lawyer, Mark Theune of Oak Harbor, filed a counterclaim alleging Baker and Moran of malicious prosecution, conspiracy to misuse process and frivolous action.
“They felt that the record needed to be set straight,” Theune said, referring to WAIF officials.
“The fact of the matter is that their slanderous assertions are not true,” Theune said of Baker and Moran’s pleadings, which are filed with the court.
Karp argued that the euthanasia of Smiley would cause obvious irreversible damage.
“The federal rule provides for a sliding scale. The greater the severity of harm, the less of a likelihood of success is required,” Karp said in his opening argument. “Here we are dealing with perhaps the most final and irreversible type of harm, and that is the death of an animal.”
“We’re not talking here about injury to a dog. We’re talking about injury to (Baker and Moran), who have no interest in this dog,” he said.
Karp responded said the litigation is about WAIF not fulfilling the promise made through a contract with Bernard Perez, Smiley’s original owner.
“They have failed,” Karp said of WAIF’s alleged inability to follow its bylaws. “They have failed their trust to Smiley. They have failed to comply with the contract. And they have not honored the terms of their bylaws.”
WAIF considers Smiley too dangerous to adopt out to someone. Experts brought in to examine Smiley have delivered mixed messages on his aggressiveness.
Karp argued that WAIF’s actions “disallowed the adoption of Smiley,” citing 11 people who filled out adoption applications for Smiley, but were turned down.
Karp called his clients “the right adopters.”
“The Morans gave a lot over the years. They gave over many thousands of dollars and hours,” he said of the former WAIF volunteers.
Debate continued until the court’s closing at 4:30 p.m., at which point the judge could not make a decision due to a lack of time.
While the lawyers decided on a new trial date, WAIF Executive Director Stephen Paysee, several board members, staff and volunteers congregated outside to discuss the case.
“This just looks like another California culture clash,” WAIF volunteer Fred Grisley said.
Candance LeVine, who has volunteered with WAIF since the early 1990s, was happy with the number of WAIF staff and volunteers who attended the hearing.
“There wasn’t room enough for all the WAIF people on one side,” she said, estimating support was split about 80 percent WAIF supporters and about 20 percent Smiley supporters.
Moran said she knew “about 10 people personally,” but wasn’t sure how many other people where they to support her case.
“As I said before, I think, no matter why people showed up, that it’s good. It shows how important this issue is,” Moran wrote in an email.