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  • 8/9/2019 GINA TURCOTTE v HUMANE SOCIETY WATERVILLE AREA Petition for Writ of Certiorari to the Supreme Court of the

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    Clerk of the Court

    Supreme Court

    ofthe

    United States

    1 First Street, NE

    Washington, DC 20543

    February

    2,

    2015

    RE: GINA YNN TURCOTTE v. HUMANE SOCIETY WATERVILLE AREA

    Petition for Writ

    of

    Certiorari

    Enclosed you will find 11

    copies

    of my

    Petition

    for a

    Writ

    of Certiorari

    and Motion

    to Proceed In

    orma

    Pauperis

    with attached

    Affidavit

    in Support

    of

    the

    Motion to Proceed

    In

    orma Pauperis

    stapled

    to

    the

    original

    top)

    copy

    of

    the

    Petition

    and a Certificate

    of Service

    showing

    proper

    service was made

    on

    Respondents.

    One

    copy

    has been mailed

    via first

    class prepaid postal mail to

    Respondent

    on this

    day.

    I believe

    this

    petition is being filed within proper time limits.

    Thank

    you.

    cc : Bryan B. Ward, Esq.

    GinA f/k/a Gina Turcotte)

    2528 West

    .River Road

    Sidney, Maine 04330

    207-333-0628

    [email protected]

    Attorney for

    Humane

    Society Waterville Area

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    1

    No. _____________

    IN THE

    Supreme Court of the United States

    ------------------------------------------------------------------

    GINA TURCOTTE

    (now known only as GinA)

    Petitioner

    v.

    HUMANE SOCIETY WATERVILLE AREA

    Respondent

    -----------------------------------------------------------------

    On Petition for Writ of Certiorari

    to the Maine Supreme Judicial Court

    ___________________________________________

    PETITION FOR WRIT OF CERTIORARI

    ___________________________________________

    GINA TURCOTTE

    (now known only as GinA)

    Petitioner

    2528 WEST RIVER ROAD

    SIDNEY, MAINE 04330

    207-333-0628

    [email protected]

    mailto:[email protected]:[email protected]:[email protected]
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    i

    QUESTION PRESENTED FOR REVIEW

    1. Whether licensed humane societies and animal shelters are a public agency

    for purposes of public records requests when they have written contracts toperform animal welfare law enforcement duties in conjunction with and on

    behalf of the state, local municipalities and police departments, if its shelter

    services are government servicesand its facilities public accommodations

    for purposes of Titles II and III of the Americans with Disabilities Act, and if

    its Animal Control Officers and other personnel are state actors for

    purposes of 42 U.S. Code 1983?

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    ii

    PARTIES TO THE PROCEEDING

    The caption contains the names of all parties to this proceeding in the Maine

    Supreme Judicial Court whose judgment is sought to be reviewed.

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    iii

    TABLE OF CONTENTS

    QUESTION PRESENTED FOR REVIEW ............................................................. i

    PARTIES TO THE PROCEEDING ....................................................................... ii

    TABLE OF AUTHORITIES ................................................................................. iv

    PETITION FOR A WRIT OF CERTIORARI ......................................................... 1

    OPINIONS BELOW ............................................................................................... 2

    STATEMENT OF JURISDICTION ....................................................................... 3

    CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............... 4

    STATEMENT OF THE CASE .............................................................................. 5

    REASONS FOR GRANTING THE PETITION ................................................... 15

    1. There is an unsettled area of law with a split between state courts

    regarding the publicsright to access public records detailing

    humane societieslaw enforcement activities, animal welfare

    activities and their financial records.

    a. A governmental agency cannot delegate its responsibilities to a

    private foundation to avoid public records disclosure laws.

    2.

    Maine Supreme Judicial Court departed from accepted and usual

    course of judicial proceedings in this 12(b)(6) dismissal action by

    dismissing with prejudice after the movant failed to defend their

    motion which calls for Supreme Court review.

    APPENDIX A ........................................................................................................ 33

    APPENDIX B ........................................................................................................ 37

    APPENDIX C ........................................................................................................ 38

    APPENDIX D ........................................................................................................ 55

    APPENDIX E ........................................................................................................ 78

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    iv

    TABLE OF AUTHORITIES

    CONSTITUTIONAL PROVISIONS

    United States Constitution, Article IV, Section 2 .................................................. 31, 1

    United States Constitution, Article VI ................................................................... 31, 1

    United States Constitution, Amendment I ....................................................... 29, 30, 1

    United States Constitution, Amendment IV .................................................... 29, 30, 1

    United States Constitution, Amendment V ...................................................... 29, 30, 1

    United States Constitution, Amendment VII ................................................... 29, 30, 1

    United States Constitution, Amendment IVX ................................................. 29, 30, 1

    Maine Constitution ...................................................................................................... 14

    STATUTES

    7 U.S. Code 2131 ....................................................................................................... 23

    7 U.S. Code 2131 - Congressional statement of policy .............................................. 2

    7 U.S. Code 2158Protection of Pets ........................................................................ 2

    28 U.S. Code 1257(a) ................................................................................................... 3

    42 U.S. Code 12131 ............................................................................................... 23, 6

    42 U.S. Code 12181 ............................................................................................... 24, 6

    42 U.S. Code 1983 ............................................................................................. passim

    42 U.S. Code 5651 ..................................................................................................... 26

    42 U.S. Code 5652 ..................................................................................................... 26

    1 MRSA 400 ................................................................................................................. 9

    1 MRSA 408-A ............................................................................................................. 9

    1 MRSA 402(3) ............................................................................................................ 6

    5 MRSA 4553 ............................................................................................................. 24

    5 MRSA 4553(8) .......................................................................................................... 7

    7 MRSA 3919-A ..................................................................................................... 7, 22

    7 MRSA 3919-A(5) .................................................................................................... 31

    7 MRSA 3919-A Procedure for acceptance and disposition of cats by animal shelter...... 8

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    7 MRSA 3932-A Animal shelters ........................................................................ 22, 10

    7 MRSA 3936 Inspection and quarantine .......................................................... 22, 11

    7 MRSA 3947 Animal control officers ................................................................ 22, 12

    7 MRSA 3948 Animal control ............................................................................. 22, 137 MRSA 3949 Animal shelter designation ......................................................... 22, 14

    7 MRSA 3950-A Official refusal or neglect of duty ............................................ 22, 14

    7 MRSA 4019 Removal from unattended motor vehicle ................................... 22, 15

    7 MRSA 4041 Animal trespass ........................................................................... 22, 16

    14 MRSA 7071 ........................................................................................................... 13

    14 MRSA 7071(2) ........................................................................................................ 8

    17 MRSA 1021 ........................................................................................................... 22

    17 MRSA 2931 ..................................................................................................... 13, 14

    17 MRSA 1025. Handling of animals seized or held ............................................... 22

    17 MRSA 1011. Definitions ................................................................................ 22, 19

    17 MRSA 1023. Investigation and reporting of cruelty ..................................... 22, 21

    22 MRSA 1313 ........................................................................................................... 22

    22 MRSA 1313-B ....................................................................................................... 22

    22 MRSA 3474 ........................................................................................................... 22

    29-A MRSA 2054 ....................................................................................................... 22

    33 MRSA 1052. Taking Up Stray Beasts; Notice ...................................................... 6

    Americans with Disabilities Act ............................................................................ 13, 14

    Human Rights Act ....................................................................................................... 13

    Maine Human Rights Act ............................................................................................ 14

    RULES

    FRCivP 8(b)(6) ................................................................................................. 10, 11, 30

    Maine Rules of Judicial Conduct ................................................................................ 14

    Maine Rules of Professional Conduct ......................................................................... 14

    MRCivP 8(d) ..................................................................................................... 10, 11, 30

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    OTHERAUTHORITIES

    4 Am. Jur. 2d, Animals 27 ........................................................................................ 12

    Blacks Law, 9thEdition ............................................................................................... 24

    Certificate of Change of Name ...................................................................................... 5

    HSWA 990 Schedule A for 2012 .................................................................................. 12

    Imperative Judicial Notice .......................................................................................... 10

    Humane Society letter ................................................................................................. 10

    Google map ..................................................................................................................... 7

    Memorandum in Opposition to Defendants Motion to Dismiss................................ 13

    Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted ......... 10

    ordered ......................................................................................................................... 10

    Public notice on craigslist.org ....................................................................................... 5

    CASES

    Am. Cargo Transp. v. Natsios, 429 F.Supp.2d 139, 145 (D.D.C. 2006) ..................... 28

    Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d

    202 (1986) ................................................................................................................. 28

    AUGDC-SA-2013-237 .................................................................................................. 13

    AUGSC-CV-2013-226 .............................................................................................. 9, 13

    Barr. v. Clinton, 361 U.S.App. D.C. 472, 475, 370 F.3d 1196, 1199 .......................... 11

    Bayer v. United States Dep't of Treasury, 294 U.S.App. D.C. 44, 47, 956 F.2d 330,

    333 (D.C.Cir.1992) .................................................................................................... 28

    Brunette v. Humane Society of Ventura County, 294 F. 3d 1205 - Court of Appeals,

    9th Circuit 2002 ........................................................................................................ 25

    Burton v. Wilmington Parking Authority, 365 US 715 .............................................. 21

    Champagne v. Humane Society, 737 P. 2d 1279 ........................................................ 27

    Clarke v. TCAC & Control Shelter, 181 P. 3d 881 ................................................ 16, 18

    Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) ............ 11

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    Connecticut Humane Society v. Freedom of Information Commission et al. 218 Conn.

    757 (1991) ........................................................................................................... 15, 20

    Connecticut Humane Society V. Freedom Of Information Commission Et Al. 218

    Conn. 757 (1991)....................................................................................................... 13Daskalea v. Washington Humane Society, 480 F. Supp. 2d 16 - Dist. Court, Dist. of

    Columbia 2007 ................................................................................................... 28, 31

    Dow v. Caribou Chamber of Commerce and Indus., 2005 ME 113 ...................... 16, 29

    EEOC v. St. Francis Xavier Parochial Sch., 326 U.S.App. D.C. 67, 70, 117 F.3d 621,

    624 (D.C.Cir.1997) .................................................................................................... 11

    First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253 .................................... 28

    Great N. Paper, Inc. v. Penobscot Nation, 2001 ME 68 .............................................. 28

    Hall v. Board of Envtl. Protection, 498 A.2d 260, 266 (Me.1985) .............................. 28

    Hallas v. Freedom of Information Commission, 18 Conn. App. 291, 294, 557 A.2d

    568 (1989) ................................................................................................................. 15

    Hazward, 14 F.Supp.2d at 122 ................................................................................... 28

    In re Austin T., 2006 ME 28 ........................................................................................ 11

    In re Wage Payment Litig., 2000 ME 162 ................................................................... 28

    Jackson v. Metropolitan Edison Co., 419 US 345 ....................................................... 21

    Johnson v. Long Beach Mortg. Loan Trust 2001-4, 451 F.Supp.2d 16, 27

    (D.D.C.2006) ............................................................................................................. 11

    Larrabee v. Penobscot Frozen Foods, Inc., 486 A.2d 97, 98 (Me.1984) ...................... 27

    Lindsey v. United States, 448 F.Supp.2d 37, 44 (D.D.C.2006) .................................. 11

    Livonia v. Town of Rome, 1998 ME 39 ....................................................................... 27

    McAfee v. Cole, 637 A.2d 463, 465 (Me.1994).............................................................. 27

    Memorial Hospital-West Volusia, Inc. v. News-Journal Corp., 729 So.2d 373, 381

    (Fla. 1999) ................................................................................................................. 19

    News and SunSentinel Co. v. Schwab, Twitty & Hanser Architectural Group, Inc.,

    596 So.2d 1029 (Fla.1992) ....................................................................................... 17

    News and SunSentinel Co. v. Schwab, Twitty & Hanser Architectural Groups, Inc.,

    596 So.2d 1029, 1031 (Fla.1992) ............................................................................. 18

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    Putnam County Humane Soc., Inc. v. Woodward, 740 So. 2d 1238 .................... 17, 18

    Ramsey v. Baxter Title Co., 2012 ME 113 ................................................................... 11

    Rendell-Baker v. Kohn, 457 US 830 ............................................................................ 30

    Richards v. Soucy, 610 A.2d 268, 270 (Me.1992) ........................................................ 27Runkle v. Gonzales, 391 F.Supp.2d 210, 220 (D.D.C.2005) ....................................... 11

    State ex rel. State Humane Soc'y v. Hovey, 159 Wash. 584 ........................................ 27

    Storey v. Seattle, 124 Wash. 598 .................................................................................. 27

    Town of Burlington v. Hosp. Admin. Dist. No. 1, 2001 ME 59 ...................... 16, 28, 29

    Turcotte v. Humane Society Waterville Area, 2014 ME 123................................. 15, 20

    TURCOTTE v. PASCO, AUGDC-SA-2013-237 ............................................................ 8

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    1

    PETITION FOR A WRIT OF CERTIORARI

    Gina Turcotte (now known only as GinA) respectfully petitions for a writ of

    certiorari to review the judgment of the Maine Supreme Judicial Court.

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    2

    OPINIONS BELOW

    The reported en bancopinion in KEN-14-52 of the Maine Supreme Judicial

    Court located at 2014 ME 123, affirming the dismissal with prejudice by Kennebec

    County Superior Court is reproduced in Appendix A. The Order of Kennebec CountySuperior Court IN AUGSC-CV-2013-226 granting Humane Society Waterville

    Areas 12(b)(6) Motion to Dismiss is reproduced in Appendix B.Complaint for

    Recovery of Personal Property and Affidavit in Support from the companion case

    AUGDC-SA-2013-237 in Augusta District Court is reproduced in Appendix C.

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    3

    STATEMENT OF JURISDICTION

    On January 20, 2014 the Kennebec County Superior Court entered an Order

    of Dismissal with prejudice in favor of Humane Society Waterville Area; the

    decision of the Maine Supreme Judicial Court was filed on November 4, 2014;therefore, the jurisdiction of this Court is properly invoked under 28 U.S. Code

    1257(a).

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    4

    CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

    The pertinent constitutional and statutory provisions are reprinted in the

    Appendix E to this brief.

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    5

    STATEMENT OF THE CASE

    This controversy took its first breath on September 18, 2012 when Petitioner

    Gina Turcotte (now known only as GinA) (See Attached Certificate of Change ofName in Appendix D)called the Waterville Maine Police Department and was

    instructed to call the Humane Society Waterville Area for help to recover her

    service animal from the backyard of the Budget Host Hotel on Kennedy Memorial

    Drive in Waterville after being illegally evicted the previous day and threatened

    with arrest by the hotel manager, Patel Umesh, because Petitioner refused to

    produce certification or documentation that her cat, Smokey, was a service animal

    when she attempted to pay for a 4thday at the hotel.

    When GinA called the Humane Society Waterville Area on September 18,

    2012 to report her missing service animal and ask for help to locate him, the

    Humane Society employee expressly indicated she was making a report of the

    information GinA was providing and would make immediate contact with GinA if

    anyone brought her cat to their shelter.

    GinA called the Humane Society every day for the next several days asking if

    the cat had been surrendered to their care. Each time GinA was told no.

    On September 22, GinA gave the employee a website address to a public

    notice on craigslist.org (See Appendix D) with pictures of the cat and other

    identifying information which GinA asked the Humane Society employee to

    download, print and include in their shelter records. GinA expressly asked the

    employee to take copies of the photographs which were posted on the website so

    they would have pictures for reference when cats were brought to their shelter. The

    employee indicated they would fully comply with GinAs requests, they understood

    the cat was a service animal, and that GinA was not surrendering her legal title or

    right to possess her cat at any time to anybody for any reason.

    These pivotal material facts have never been denied by the Humane Society.

    On September 22 GinA liked and started following updates to the Humane

    Societys Facebook page hoping her cats photograph would be publicly posted when

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    6

    the cat was brought into the shelter in compliance with 33 MRSA 1052. Taking

    Up Stray Beasts; Noticewhich requires, without any exceptions,

    Whoever takes up a stray beast shall, within 7 days, give notice thereof

    in writing, containing a description of its color and its natural and artificialmarks, to the clerk of the town where such beast is taken, and shall cause a

    notice thereof, containing a like description of the beast, to be posted, and if

    such beast is of the value of $10 or more, to be published in the manner

    provided in section 1051; otherwise he shall not be entitled to compensation for

    any expenses which he may incur relative thereto.

    Humane Societys private website1and Facebook page never displayed any

    public notifications whatsoever that GinAs cat had been brought to the facilityuntil

    January 4, 2013. On that day at 4:38pm, Humane Society took a photograph of

    GinAs cat and published it on Facebook with the caption, Shamoo has been

    adopted!2 GinA saw the photograph and made her first comment3three hours later

    at 7:48pm(See Appendix D), stating,

    I think this is my cat Smokey who was lost in Waterville earlier this

    year. I have not stopped looking for him and have checked your adoption page

    many times and have not seen his picture out there; as a matter of fact I just

    looked for him again the other day. I will be calling your office to ask about

    getting my cat back since I did call your office when he first went missing andgave you all his information and a link to the craigslist post with his picture

    looking for him... if this is Smokey I will want to get him back immediately as

    he is a service animal and very much missed.

    GinA called the Humane Society on January 5, 2013 at 9am when their

    phone opened at which time she spoke at length with the receptionist about their

    lack of contact with GinA at which time GinA was first told about the missing

    records identifying GinAs cat prior to his surrenderwhich GinA eventually learned

    1http://www.hswa.org2

    https://www.facebook.com/HumaneSocietyWatervilleArea/photos/a.10152375845930293.939159.1733

    66630292/10152378476015293/?type=3&theater3Humane Society Waterville Area has since deleted GinAs comments and GinA has been blocked

    from posting any further comments on her cats photograph which is photo #5 in Humane Society

    Waterville Areas Facebook photo album for January 2013 titled January 2013 Happy Tails

    https://www.facebook.com/media/set/?set=a.10152375845930293.939159.173366630292&type=3.

    http://www.hswa.org/http://www.hswa.org/http://www.hswa.org/https://www.facebook.com/HumaneSocietyWatervilleArea/photos/a.10152375845930293.939159.173366630292/10152378476015293/?type=3&theaterhttps://www.facebook.com/HumaneSocietyWatervilleArea/photos/a.10152375845930293.939159.173366630292/10152378476015293/?type=3&theaterhttps://www.facebook.com/HumaneSocietyWatervilleArea/photos/a.10152375845930293.939159.173366630292/10152378476015293/?type=3&theaterhttps://www.facebook.com/media/set/?set=a.10152375845930293.939159.173366630292&type=3https://www.facebook.com/media/set/?set=a.10152375845930293.939159.173366630292&type=3https://www.facebook.com/media/set/?set=a.10152375845930293.939159.173366630292&type=3https://www.facebook.com/HumaneSocietyWatervilleArea/photos/a.10152375845930293.939159.173366630292/10152378476015293/?type=3&theaterhttps://www.facebook.com/HumaneSocietyWatervilleArea/photos/a.10152375845930293.939159.173366630292/10152378476015293/?type=3&theaterhttp://www.hswa.org/
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    was November 12, 2012 by Linda Andrews. (NOTE: In order to show the cat did

    not leave the property without any intention of returning to the hotel, it is

    very important to note that GinAs cat stayed within a 1-mile radius of the

    hotel (Sep 17Nov 12, 2012) where GinA and her cat were separated for 55days until the cat was found by a resident of a neighborhood 1-mile away

    and brought to the humane society. If the humane society or the police

    department had quickly set have-a-heart traps near the hotel, there is a

    high likelihood that GinAs cat would have been immediately returned to

    her possession as GinA requested.)(See Appendix D for map)

    GinA was told the Director would return her call when she arrived at 10am.

    When GinA spoke with the Humane Society director, Andrea Pasco4, at 10am5Ms.

    Pasco said GinA no longer had any legal claim to the cat because the cat did not

    have a microchip, that the Humane Society had no further legal obligations to GinA

    or her cat, and the Humane Society would not help GinA get her cat back. Ms. Pasco

    offered no explanations for the missing records which GinA initiated on September

    18 when she made her first report of her missing animal or of any follow-up

    telephone calls GinA made in the ensuing days, weeks and months in search of her

    cat.

    GinA immediately engaged in certain legal strategies to gain access to the

    Humane Societys records and the name of the people who currently possess the cat.

    Gina first filed a request for an investigation with the State of Maine Office of

    Attorney General Consumer Protection Division on January 7, 2013 requesting an

    official investigation into the Humane Societys unfair and deceptive trade practices

    with an explicit sole request for the immediate return of her service animal. The

    Attorney Generals office declined to assist citing 7 MRSA 3919-A.

    4Andrea Pasco was publicly fired by the Humane Society Waterville Area shortly after GinA filed

    her first lawsuit in Augusta District Court for Recovery of Personal Property which named Andrea

    Pasco personally, as well as the President and Vice President of the Board of Directors.5This phone call was electronically recorded under Maines one-party law and is published on

    YouTubehttps://www.youtube.com/watch?v=frN8K6yXMmQin a video compiled from photos and

    audio recordings with government officials and other people during GinAs efforts to recover

    possession of her service animal.

    https://www.youtube.com/watch?v=frN8K6yXMmQhttps://www.youtube.com/watch?v=frN8K6yXMmQhttps://www.youtube.com/watch?v=frN8K6yXMmQhttps://www.youtube.com/watch?v=frN8K6yXMmQ
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    GinA then filed her first court complaint on April 24, 2013 in Augusta

    District Court, TURCOTTE v. PASCO, AUGDC-SA-2013-237, for Recovery of

    Personal Property under 14 MRSA 7071(2), which the court eventually dismissed

    without prejudice but specifically maintaining GinAs constitutional claims afterholding a hearing because the Humane Society Waterville Area no longer had

    physical possession of the cat which nullified the applicability of 7071 to those

    instant circumstances.

    During a recorded public hearing on June 26, 2013 in Augusta District Court,

    Bryan B. Ward, Esq., attorney for the Humane Society, stated, ...if the court was to

    order the humane society to release the names [of John/Jane Doe] we have no

    choice. Its not privileged under the law

    The judge replied, if the humane society were a defendant today, I would

    order them to disclose

    Before the judge dismissed the case, GinA stated for the record,

    I never surrendered nor abandoned my animal. I have also

    another audio on the day that I lost my animal when I was fighting with

    the hotel owner who evicted me illegally because of my service animal.

    He wanted to charge me a pet fee and I told him you cantdo it it's a

    service animal he says you've got an hour and a half to leave or ill call

    the police. I had to leave. My cat was outside going to the bathroom. I

    couldn't get him back in time. I went to an abutting property to try to get

    him back. I couldn't get him back. I went back to the property several

    times I made several attempts to retrieve him. I've had him since 2008.

    Humane society regardless of the reason they possessed it regardless of

    the way they came into possession of him for any length of time had no

    legal title to sell him to anybody regardless of the possessor's innocence

    or not. The possessor's innocence is of no factor in this case at all. The

    factor is did the humane society and or its individuals have any kind of

    legal title to transfer that possession to to anybody else for any amount of

    money whatsoever. The answer is no. Because I did not surrender myanimal under the bona fide purchaser doctrine. I did not abandon him.

    As a matter of fact, quite the contrary I told them specifically on Sept.18

    that my animal was a service animal he was very much missed I have

    several reports I have several um um um four people who have helped

    me look for him I called the humane society I don't know how many

    times which I am fully prepared to subpoena their phone records to

    prove it. The fact that they did not take the report is the problem that

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    started this whole mess. They didn't take the report. Whoever didn't do

    it, didn't do it. And that's why we're here now.6

    On August 20, 2013 a proper request for public records pursuant to 1 MRSA

    400 et seq. Freedom of Access Act was sent to the Humane Society Waterville Area

    requesting specific information about GinAs cat with a particular request for the

    names and contact information of the people who purchased the cat from the

    Humane Society on January 4, 2013. The Humane Society failed to respond to the

    FOAA request in any way, in violation of 1 MRSA 408-A(4),

    Refusals; denials. If a body or an agency or official having custody or

    control of any public record refuses permission to inspect or copy or abstract a

    public record, the body or agency or official shall provide written notice of thedenial, stating the reason for the denial, within 5 working days of the receipt

    of the request for inspection or copying. Failure to comply with this subsection

    is considered failure to allow inspection or copying and is subject to appeal as

    provided in section 409.

    On September 18, 2013, a Complaint for Injunctive Relief was filed in

    Kennebec County Superior Court with Case No. AUGSC-CV-2013-226 pursuant to 1

    MRSA 408-A. On November 26, 2013 GinA sent the Summons and Complaint for

    service to the Kennebec County Sheriffs Office which was completed in hand to

    Kathleen Ross7on December 2, 2013 at the Humane Societys office at 100 Webb

    Road, Waterville. The original summons and complaint was mailed to the Kennebec

    County Superior Court on December 11, 2013 for scheduling of a proper hearing.

    6This written transcript was derived from a private recording which was taken by GinA during the

    public recorded hearing on June 26, 2013 and transcribed at home. GinA did not order an official

    transcript from the court because she did not appeal the district courts dismissal of the 7071 actionon the limited grounds stated by the judge.7Kathleen Ross replaced Andrea Pasco in August 2013, as published in the Kennebec Journal

    newspaper, here:http://www.centralmaine.com/2013/08/20/waterville-humane-society-looks-ahead-

    under-new-president-director/ On April 24, 2014 the Kennebec Journal published another article

    titled, Ringworm outbreak closes Waterville shelterwhich announced Kathleen Ross termination

    earlier in April 2014 by the Board of Directors, Earlier this month the Board of Directors decided not

    to renew the contract of interim director Kathleen Ross. Townsend said that the board and Ross, who

    was previously a board member, had disagreements about her responsibilities as executive director.

    http://www.centralmaine.com/2014/04/24/ringworm_outbreak_closes_waterville_animal_shelter_/

    http://www.centralmaine.com/2013/08/20/waterville-humane-society-looks-ahead-under-new-president-director/http://www.centralmaine.com/2013/08/20/waterville-humane-society-looks-ahead-under-new-president-director/http://www.centralmaine.com/2013/08/20/waterville-humane-society-looks-ahead-under-new-president-director/http://www.centralmaine.com/2013/08/20/waterville-humane-society-looks-ahead-under-new-president-director/http://www.centralmaine.com/2014/04/24/ringworm_outbreak_closes_waterville_animal_shelter_/http://www.centralmaine.com/2014/04/24/ringworm_outbreak_closes_waterville_animal_shelter_/http://www.centralmaine.com/2014/04/24/ringworm_outbreak_closes_waterville_animal_shelter_/http://www.centralmaine.com/2013/08/20/waterville-humane-society-looks-ahead-under-new-president-director/http://www.centralmaine.com/2013/08/20/waterville-humane-society-looks-ahead-under-new-president-director/
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    On December 13, 2013 the Humane Society through Bryan B. Ward filed a

    Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted

    (See Appendix D) under MRCivP 12(b)(6) and GinA filed a timely Memorandum in

    Opposition to Defendants Motion to Dismiss on December 30, 2013.On January 20, 2014 Kennebec County Superior Court Judge Michaela

    Murphy ordered Humane Societys Motion to Dismisswithout hearing under

    MRCivP 12(b)(6) with prejudice stating, Case is dismissed with prejudice. The

    Humane Society Waterville Area is not subject to 1 M.R.S.A. Section 400 et seq.

    On January 29, 2014, GinA filed her Notice of Appeal to the Maine Supreme

    Judicial Court and her Appellate Brief was filed on April 13, 2014 and sent to the

    Humane Societys attorney for reply.

    On May 27, 2014 Bryan B Ward, Esq. sent a basic letter to GinA and Maine

    Supreme Judicial Court alleging the Humane Societys financial disability to defend

    this action and the Humane Societys notice that they would not be filing any reply

    brief or participating in any oral arguments scheduled by the court.

    GinA filed a timely response letter and an Imperative Judicial Notice

    indicating the Humane Societys failure to reply under MRCivP 8(d)and FRCivP

    8(b)(6) was their legal admission to all claims made in GinAscomplaint and that

    the court must therefore rule inAppellantsfavor.

    Despite overwhelming evidence in support of GinAs claims that the Humane

    Society is in fact claiming to be, and in fact are, a publicly supported organization

    subject to public records requests, the Maine Supreme Judicial Court ignored the

    standard of review for 12(b)(6) motions and the legal effectAppelleesfailure to

    respond under MRCivP 8(d) and FRCivP 8(b)(6) has on the case and affirmed the

    Superior Courts dismissal with prejudice setting precedent that will effectively bar

    every individual nationwide from gaining access to public records maintained by the

    Humane Society Waterville Area and any other humane society and animal shelter

    operating under Maine laws.

    Maine Supreme Judicial Court decided this case en bancarguing the merits

    of GinAs claims instead of adhering to established precedent on 12(b)(6) motions

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    that require the court to "view the complaint in the light most favorable to the

    plaintiff to determine whether it sets forth elements of a cause of action or alleges

    facts that would entitle the plaintiff to relief pursuant to some legal theory," Ramsey

    v. Baxter Title Co., 2012 ME 113, 6, 54 A.3d 710 and"we take the materialallegations of [the] complaint as though they were admitted. "In re Austin T., 2006

    ME 28, 6, 898 A.2d 946.

    When adjudicating a motion to dismiss for failure to state a claim under

    Federal Rule of Civil Procedure 12(b)(6), the Court must view all the allegations and

    facts in the complaint in the light most favorable to the plaintiffs, and it must grant

    the plaintiffs the benefit of all inferences that can be derived from those facts."

    Lindsey v. United States, 448 F.Supp.2d 37, 44 (D.D.C.2006) (citing Barr. v. Clinton,

    361 U.S.App. D.C. 472, 475, 370 F.3d 1196, 1199 (D.C.Cir.2004)). "The court is

    limited to considering facts alleged in the complaint, any documents attached to or

    incorporated in the complaint, matters of which the court may take judicial notice,

    and matters of public record." Johnson v. Long Beach Mortg. Loan Trust 2001-4, 451

    F.Supp.2d 16, 27 (D.D.C.2006) (citing EEOC v. St. Francis Xavier Parochial Sch.,

    326 U.S.App. D.C. 67, 70, 117 F.3d 621, 624 (D.C.Cir.1997)) (other citation omitted).

    "[A] complaint should not be dismissed for failure to state a claim unless it appears

    beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim

    which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.

    99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted). "The complaint need only set forth a

    short and plain statement of the claim, giving the defendant fair notice of the claim

    and the grounds upon which it rests." Runkle v. Gonzales, 391 F.Supp.2d 210, 220

    (D.D.C.2005) (citations omitted).

    In reply to GinAs well-plead and well-supported Appellate Brief, the

    Humane Society expressly plead poverty and failed in their legal duty under

    MRCivP 8(d) and FRCivP 8(b)(6) to adequately rebut the abundant evidence GinA

    obtained through public records internet searches proving beyond a shadow of a

    doubt the Humane Society is knowingly acting in the capacity with all the

    privileges and powers of a public agency and are redeeming all pertinent tax credits

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    from the Internal Revenue Service on their IRS 990 Schedules (see Appendix D for

    HSWA 990 Schedule A for 2012) on which they have unfailingly claimed the

    Humane Society Waterville Area

    is not a privatefoundation because it is...An organization which

    receives a substantialpart of its support from a governmental unit or the

    general publicdescribed in section 170(b)(1)(A)(vi).

    Appellee consistently reports "the organization qualifies as a publicly

    supported organization" because it receives 33 1/3 % or more of its support

    from a government unit or the general public.

    Additionally, the record shows unchallenged proof of Appellee's state

    sanctioned authority by way of written contract with political and municipal

    subdivisions to engage in state-sanctioned activities, namely statutorilyrequired police enforcement of animal welfare laws, seizure, control and care

    of special private property for private corporate commercial purposes while

    never affording the public any due process of law, inter alia,

    "Because law enforcement is traditionally a function of the government,

    the society performs a governmental function to the extent that it

    engages in the law enforcement activities authorized by statute. See

    General Statutes 29-108b and 29-108c. Because legislation designed

    to protect animals from cruelty and neglect is recognized as a valid

    exercise of the police power; 4 Am. Jur. 2d, Animals 27; arguably, the

    society also performs a governmental function insofar as it engages inthe statutorily authorized activities involving the detention, shelter and

    euthanasia of animals. See General Statutes 29-108e, 29-108g. ...

    Moreover, the state still plays a predominant role in preventing the

    cruel and inhuman treatment of animals. See, e.g., General Statutes

    22-272a (approved methods of slaughter), 22-329 (prevention of

    cruelty to dogs and other animals), 22-332a (restrictions on use of

    dogs for medical research), 22-336 (maintenance of dog pounds), 22-

    342 (b) (inspection of kennels), 22-415 (prevention of cruel and

    inhuman treatment of equines). Local police, dog wardens and the

    department of agriculture routinely use the society to investigatecomplaints of animal abuse and neglect. The society issues warnings

    and refers continuing instances of animal cruelty and neglect to the

    office of the state's attorney. The office of the state's attorney and the

    police rely upon the society to hold detained animals and to provide

    expertise upon request." Connecticut Humane Society V. Freedom Of

    Information Commission Et Al. 218 Conn. 757 (1991).(Ap. Brief, Pg

    13, 2)

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    GinA first raised questions of federal and constitutional law in her initial

    complaint in the district court companion case AUGDC-SA-2013-237 and during the

    hearing stating violations of the Human Rights Act and Americans with Disabilities

    Act, inter alia.

    GinA also raised the federal question of her right to constitutional due

    process, inter alia, on page four of her Memorandum in Opposition to Defendants

    Motion to Dismiss in Kennebec County Superior Court, AUGSC-CV-2013-226 where

    she claimed the Humane Societys failure to maintain proper records and give GinA

    access to current records is effectively preventing GinA from reuniting with her cat,

    regardless if its a service animal or a pet,without due process or equal protection of

    the laws, inter alia.

    The judge in Augusta District Court in AUGDC-SA-2013-237 said,

    I wont be acting on those [constitutional] claims in a way that

    extinguishes your rightif you file a different kind of case

    allegingsome other legal causes of action that you hadat least

    raised the human rights actthose causes of action may be maintained,

    I dont know how far you will get with them but they may be

    maintained. Today we will only be dealing with the cause of action

    under 14 MRSA 7071

    Both Kennebec County Superior Court Judge Michaela Murphy and the

    Maine Supreme Judicial Court sitting en bancfailed to acknowledge any of GinAs

    constitutional claims and never afforded GinA or her cat any special consideration

    under the Americans with Disabilities Act.

    GinA reiterated her constitutional and federal claims in her Appellate Brief

    to the Maine Supreme Judicial Court on page 13, 4, page 30, 3, and page 31, 2

    and 3 citing the Humane Societys and J. Murphys outrageous violations of 42

    U.S. Code 1983 and 17 MRSA 2931, specifically from Page 31 2 and 3,

    J. Murphys prejudicial rulings against Appellant despite clear

    evidence with statutory support in Appellants favor, in this case and

    other unrelated cases, individually and collectively rise to the level of

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    malicious, willful interference with Appellants right to equal protection

    under the law and right to due process, inter alia, which is actionable

    under 42 U.S. Code 1983 and 17 MRSA 2931.

    Michaela Murphy has knowingly violated the Maine

    Constitution, Maine Rules of Professional Conduct, Maine Rules ofJudicial Conduct, Title 17 Maine Revised Statutes 2931 and 42 USC

    1983 when she intentionally used abusive discretion and knowingly

    and arbitrarily dismissed Appellants Complaint knowing the subject

    property is a therapeutic device thereby violating Appellants human

    rights as protected by the Maine Human Rights Act as well as the

    Americans with Disabilities Act, inter alia

    In their seven-page en bancdecision, the Maine Supreme Judicial

    Court closed their judgment by unanimously determining,

    Our review of the four factors leads us to conclude that,

    although HSWA performs a function that both benefits the public and

    assists municipalities in fulfilling their statutory obligation to arrange

    for shelter services to be provided for the area, it is not a public agency

    subject to the requirements of FOAA. Even accepting all of the factual

    allegations in the complaint as true, Turcotte has not stated a claim

    that entitles her to relief on her claim to compel HSWA to provide access

    to its records. The entry is: Judgment affirmed.

    The Maine Supreme Judicial Court did not fully investigate Maine and

    federal laws to determine the full extent of governmental regulation of the humane

    societys law enforcement services, the Humane Societys authority to seize and put

    animals to death on behalf of government agencies, and how those elite powers are

    balanced by constitutional protections which forbid seizing private property without

    the right to a trial by jury, due process and equal protection of the laws, inter alia.

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    REASONS FOR GRANTING THE PETITION

    1. There is an unsettled area of law with a split between state courts

    regarding the publicsright to access public records detailing

    humane societieslaw enforcement activities, animal welfareactivities and their financial records.

    A.A governmental agency cannot delegate its responsibilities to a private

    foundation to avoid public records disclosure laws.

    i. In Connecticut Humane Society v. Freedom of Information

    Commission et al.218 Conn. 757 (1991) Supreme Court of

    Connecticut decided,

    In determining whether an entity is the functional equivalent of a

    public agency, we consider the following criteria: "(1) whether the entity

    performs a governmental function; (2) the level of government funding; (3) the

    extent of government involvement or regulation; and (4) whether the entity was

    created by the government."[3] Id., 554; see also Hallas v. Freedom of

    Information Commission, 18 Conn. App. 291, 294, 557 A.2d 568 (1989).

    The court concluded that the Connecticut Humane Society was not a

    public agency because Although the society cooperates with the state in its

    efforts to prevent cruel and inhuman treatment of animals, there is nothing in

    the record to indicate that the state in any way controls or regulates the

    societyThe society is not required to perform any of the activities authorized

    by statute. Furthermore, performance of the activities is not subject to

    governmental review. The society is self-directed and its employees are not

    government employeesBalancing all the applicable factors, we conclude

    that, in light of the evidence, the trial court properly concluded that the society

    is not a public agency.

    ii. In the case upon which this petition is based, Turcotte v.

    Humane Society Waterville Area, 2014 ME 123, the Maine

    Supreme Judicial Court decided,

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    When evaluating whether an entity qualifies as a public agency

    or political subdivision for purposes of FOAA, we look to the function

    that the entity performs. Dow v. Caribou Chamber of Commerce and

    Indus., 2005 ME 113, 12, 884 A.2d 667. We consider four factors inconducting this analysis: "(1) whether the entity is performing a

    governmental function; (2) whether the funding of the entity is

    governmental; (3) the extent of governmental involvement or control;

    and (4) whether the entity was created by private or legislative action."

    Id. (quoting Town of Burlington v. Hosp. Admin. Dist. No. 1, 2001 ME

    59, 16, 769 A.2d 857).

    The court concluded, Our review of the four factors leads us to

    conclude that, although HSWA performs a function that both benefits

    the public and assists municipalities in fulfilling their statutory

    obligation to arrange for shelter services to be provided for the area, it is

    not a public agency subject to the requirements of FOAA. Even

    accepting all of the factual allegations in the complaint as true,

    Turcotte has not stated a claim that entitles her to relief on her claim to

    compel HSWA to provide her access to its records.

    iii. In Clarke v. TCAC & Control Shelter, 181 P. 3d 881, Division

    3 of the Court of Appeals of Washington decided,

    The court in Telford adopted a four-factor "functional

    equivalent" balancing test to determine if an entity is to be regarded as

    a public agency for purposes of the PDA: (1) whether the entity performs

    a governmental function; (2) the level of government funding; (3) the

    extent of government involvement or regulation; and (4) whether the

    entity was created by the government. Id. at 162, 974 P.2d 886. Under

    Telford, each of these criteria need not be equally satisfied, but rather

    the criteria on balance should suggest that the entity in question is the

    functional equivalent of a state or local agency. Id.

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    The court concluded, On balance, we conclude TCAC is the

    functional equivalent of a public agency. While TCAC has some non-

    public functions and characteristics, the fact that it performs a

    governmental function dependent upon its relationship with the localgovernment, receives the bulk of its funding from taxpayer money to

    perform that function, and is subject to regular government oversight,

    all tip the scale in favor of finding that TCAC is the functional

    equivalent of a public agency.

    iv. InPutnam County Humane Soc., Inc. v. Woodward, 740 So.

    2d 1238, the Florida District Court of Appeals for the Fifth

    District decided,

    The Society argues that the definition of agency under section

    119.011(2)[1], Florida Statutes (1997) does not include the society

    because the application of the factors in News and SunSentinel Co. v.

    Schwab, Twitty & Hanser Architectural Group, Inc., 596 So.2d 1029

    (Fla.1992), excludes it. The Schwab factors include but are not limited

    to: (1) level of public funding; (2) comingling of funds; (3) whether the

    activity was conducted on publicly owned property; (4) whether the

    services contracted for are an integral part of the public agency's chosen

    decision making process; (5) whether the privateentity is performing a

    governmental function or a function which the public agency otherwise

    would perform; (6) the extent of the public agency's involvement with,

    regulation of or control over the private entity; (7) whether the private

    entity was created by the public agency; (8) whether the public agency

    has a substantial financial interest in the private entity; and (9) for

    whose benefit the private entity is functioning.

    The court concluded, In the instant case, the provisions of

    sections 828.03 and 828.073[2] authorize the Society, but do not compel

    it, to perform the governmental function. We conclude that this

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    difference is immaterial once the Society assumed the authority under

    the enabling statutes. The Society does not dispute that it exercised its

    investigative power, and its right to remove animals, under the

    authority of the statute.Where the Society has used its statutory authority to investigate

    acts of animal abuse and has used this authority, further, to seize

    animals, it has acted as an agent of the state. The investigation of a

    criminal act pursuant to authority to do so granted by the legislature is

    the performance of a public function. To hold that the Public Records

    Act is not applicable to this type of investigation would improperly

    result in the avoidance of disclosure through a delegation "to a private

    entity that which otherwise would be an agency responsibility." News

    and SunSentinel Co. v. Schwab, Twitty & Hanser Architectural

    Groups, Inc., 596 So.2d 1029, 1031 (Fla.1992).

    Despite the two-to-two split in the cases cited above, the courts agreed on

    four elements upon which each of the cases were decided:

    (1) whether the entity performs a governmental function;

    (2) the level of government funding;

    (3) the extent of government involvement or regulation; and

    (4) whether the entity was created by the government.

    As the courts noted in Clarke,

    Under Telford, each of these criteria need not be equally

    satisfied, but rather the criteria on balance should suggest that the

    entity in question is the functional equivalent of a state or local

    agencyand inPutnam, The Schwab court ... noted that agency has

    been defined broadly in the statute to ensure that a public agency

    cannot avoid disclosure under the act by contractually delegating to a

    private entity that which otherwise would be an agency responsibility.

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    596 So.2d at 1031. Were we to hold that the Salvation Army is not

    acting on behalf of Marion County, this public policy would be

    circumvented. Accordingly, we find that all records which would be

    public if the county were providing the probation services are alsopublic when the Salvation Army performs that task.

    Id. at 503. The supreme court, in Memorial Hospital-West

    Volusia, Inc. v. News-Journal Corp., 729 So.2d 373, 381 (Fla. 1999),

    agreed with this court's reasoning in Stanfield. The supreme court

    wrote:

    We ... agree with the Fifth District in this case in noting the

    distinction between providing materials or services to a public body to

    facilitate a public body's own performance of its public function and an

    agreement under which a private actor performed the public function in

    place of the public body. When the agreement transfers the actual public

    function, public access follows, as was correctly determined by the Fifth

    District in its more recent decision in Stanfield v. Salvation Army ... in

    which the district court held that public access was required for a

    private entity that completely assumed a governmental obligation in its

    contract with a county government to provide probationary services.

    The only substantial difference between the instant case and

    Stanfield is that in Stanfield, the Salvation Army contractually

    obligated itself to perform governmental services which otherwise would

    have had to be performed by Marion County. In the instant case, the

    provisions of sections 828.03 and 828.073[2] authorize the Society, but

    do not compel it, to perform the governmental function. We conclude

    that this difference is immaterial once the Society assumed the

    authority under the enabling statutes.

    In the matter recently decided by the Maine Supreme Judicial Court which is

    the subject of this petition, the court said the pivotal factor in Maine is if the

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    humane societys employees are authorized by statute to take actions such as

    enforcing animal welfare laws and confiscating abused or neglected animals

    although the court clearly affirmed the humane society is contractually obligated to

    provide food, shelter, and medical services to stray animals, which benefits each ofthe municipalities HSWA serves. See Turcotte, 2014 ME 123

    The courts do not require that an entity conform to all factors, but that the

    factors be considered and weighed.Conn. Humane Soc'y, 591 A.2d at 397; Telford,

    974 P.2d at 894. Town of Burlington v. Hosp. Admin. Dist., 769 A. 2d 857

    It is of no legal consequence that shelter employees are not explicitly

    authorized by statute to take actions such as enforcing animal welfare laws and

    confiscating abused or neglected animalsbecause once a law enforcement or animal

    control officer seizes an animal under protections of the Fourth, Fifth, Seventh and

    Fourteenth Amendments and delivers it to a humane society for housing and care,

    all employees are contractually and statutorily required to care for and protect the

    animal in the same manner and up to equal standards as the public official who

    seized the animal would be.

    Humane society employees are explicitly required to follow all local rules,

    state statutes, and federal regulations without exceptions regarding basic level of

    medical care, shelter conditions, containment of infectious diseases, public notice

    requirements, record-keeping standards, euthanasia guidelines, maintenance of

    medical devices and pharmaceutical narcotics all which carry governmental

    permission and licensing requirements, one of which is the humane societies legal

    duty to maintain proper records of all animal sales for a period of two years,

    7 MRSA 3914. Purchase and sale of animals, Animal shelters, kennels,

    breeding kennels, boarding kennels and pet shops engaged in buying or selling

    animals shall keep records of the buyer and seller in each transaction for a 2-year

    period commencing at the time of purchase or sale. The records must be open to

    inspection by the department or law enforcement officers

    Additionally, once a state agent places animals seized under the Fourteenth

    Amendment with an animal shelter for boarding, medical care and adoption or

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    euthanasia purposes, the shelter has intentionally and contractually placed itself in

    the role of a government facility under the symbiotic relationship doctrine.

    no State may effectively abdicate its responsibilities by either ignoring them

    or by merely failing to discharge them whatever the motive may be. It is of noconsolation to an individual denied the equal protection of the laws that it was done

    in good faith. Certainly the conclusions drawn in similar cases by the various Courts

    of Appeals do not depend upon such a distinction. By its inaction, the Authority, and

    through it the State, has not only made itself a party to the refusal of service, but has

    elected to place its power, property and prestige behind the admitted discrimination.

    The State has so far insinuated itself into a position of interdependence with Eagle

    that it must be recognized as a joint participant in the challenged activity, which, on

    that account, cannot be considered to have been so purely private as to fall without

    the scope of the Fourteenth Amendment Burton v. Wilmington Parking

    Authority, 365 US 715 - Supreme Court 1961

    the inquiry must be whether there is a sufficiently close nexus between the

    State and the challenged action of the regulated entity so that the action of the latter

    may be fairly treated as that of the State itself. Moose Lodge No. 107, supra, at 176.

    The true nature of the State's involvement may not be immediately obvious, and

    detailed inquiry may be required in order to determine whether the test is met.

    Burton v. Wilmington Parking Authority, supra.Jackson v. Metropolitan Edison

    Co., 419 US 345 - Supreme Court 1974

    The Maine court failed to make a detailed inquiry into the numerous state

    laws, rules and regulations regarding the privileges, powers, and duties of animal

    control officers, affiliated humane societies and their interdependence with state

    and local government activities which effectively creates a symbiotic relationship

    and which has a direct bearing on the outcome of this instant case.

    Listed below are only seventeen section titles of numerous applicable Maine

    Revised Statutes specifying the authorities, duties, or privileges of animal control

    officers and humane societies in Maine which are reproduced verbatim in relevant

    part in Appendix E:

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    1. 7 MRSA 3919-A Procedure for acceptance and disposition of cats by animal

    shelter

    2. 7 MRSA 3932-A Animal shelters

    3.

    7 MRSA 3936 Inspection and quarantine

    4. 7 MRSA 3947 Animal control officers

    5. 7 MRSA 3948 Animal control

    6. 7 MRSA 3949 Animal shelter designation

    7. 7 MRSA 3950-A Official refusal or neglect of duty

    8. 7 MRSA 4019 Removal from unattended motor vehicle

    9. 7 MRSA 4041 Animal trespass

    10.

    17 MRSA 1011 Definitions

    11. 17 MRSA 1021 Possession of animals

    12. 17 MRSA 1023 Investigation and reporting of cruelty

    13. 17 MRSA 1025 Handling of animals seized or held

    14. 22 MRSA 3474. Records; Confidentiality, Disclosure

    15. 22 MRSA 1313 Procedures for the Transportation, Quarantine,

    Euthanasia and Testing of Animals Suspected of Having Rabies

    16.

    22 MRSA 1313-B Civil Violation, Court Authorization for Removal andOther Remedies

    17. 29-A MRSA 2054 Emergency and Auxiliary Lights; Sirens; Privileges

    As published on the Augusta Maine Police Departments official website8,

    within the boundaries of and for the municipality of Augusta Maine, all animal

    control and animal law enforcement duties are contracted to Francois Roodman who

    is the Animal Control Officer for the Augusta Police Department; accordingly, all

    8The Animal Control Division is responsible for the enforcement of ordinances and state laws

    pertaining to animals, primarily domestic. These include licensing and vaccination requirements as

    well as Investigating reports or complaints involving animals; take appropriate action; investigate

    reports of animal abuse, investigate animal bite reports, prepare rabies specimens as necessary;

    educating citizens in the neighborhood.

    http://www.augustamaine.gov/index.asp?Type=B_BASIC&SEC=%7B3D85517B-4BA1-47B0-80C8-

    491D45625A4C%7D&DE=%7B14F7335E-34A8-4568-91C5-B9A7A4D43EEF%7D

    http://www.augustamaine.gov/index.asp?Type=B_BASIC&SEC=%7B3D85517B-4BA1-47B0-80C8-491D45625A4C%7D&DE=%7B14F7335E-34A8-4568-91C5-B9A7A4D43EEF%7Dhttp://www.augustamaine.gov/index.asp?Type=B_BASIC&SEC=%7B3D85517B-4BA1-47B0-80C8-491D45625A4C%7D&DE=%7B14F7335E-34A8-4568-91C5-B9A7A4D43EEF%7Dhttp://www.augustamaine.gov/index.asp?Type=B_BASIC&SEC=%7B3D85517B-4BA1-47B0-80C8-491D45625A4C%7D&DE=%7B14F7335E-34A8-4568-91C5-B9A7A4D43EEF%7Dhttp://www.augustamaine.gov/index.asp?Type=B_BASIC&SEC=%7B3D85517B-4BA1-47B0-80C8-491D45625A4C%7D&DE=%7B14F7335E-34A8-4568-91C5-B9A7A4D43EEF%7Dhttp://www.augustamaine.gov/index.asp?Type=B_BASIC&SEC=%7B3D85517B-4BA1-47B0-80C8-491D45625A4C%7D&DE=%7B14F7335E-34A8-4568-91C5-B9A7A4D43EEF%7D
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    animal control activities within Augusta occur under the provisions of 42 U.S. Code

    1983 because all animal control activities are performed either by Ofc. Francois

    Roodman in his official capacity or by another government agent acting as an

    alternate animal control officer for the Augusta Police Department.The Maine legislature has given animal control officers similar power as law

    enforcement officers, District Attorneys, social service officers, and medical

    professionals, all who must be properly trained, licensed, regulated and maintain

    continuing education activities to maintain proper licenses.

    In Maine, animal control officers are given special privileges, powers, and

    duties which are only afforded to government actors or people specially educated

    and licensed by the government as well as being given access to highly confidential

    adult protective information in special circumstances which may involve the health,

    safety or welfare of an animal.

    A reasonable presumption exists that humane societies in the state of Maine

    provide sales of shelter animals to non-resident visitors of Maine, or transfer some

    of their animals to licensed animal shelters in other states to prevent or relieve

    overpopulation at any one shelter; therefore, humane societies can be reasonably

    presumed to engage in interstate commerce thereby invoking 7 U.S. Code 2131

    which states,

    The Congress finds that animals and activities which are

    regulated under this chapter are either in interstate or foreign

    commerce or substantially affect such commerce or the free flow thereof,

    and that regulation of animals and activities as provided in this

    chapter is necessary to prevent and eliminate burdens upon such

    commerce and to effectively regulate such commerce

    Congress has expressly defined a public entity under 42 U.S. Code 12131

    as any department, agency, special purpose district, or other instrumentality of a

    State or States or local government.

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    Blacks Law, 9thEdition, defines instrumentality as A means or agency

    through which a function of another entity is accomplished, such as a branch of a

    governing body.

    The services of an animal shelter or humane society would best fit within oneof the categories of public accommodations under the Americans with Disabilities

    Act, 42 U.S. Code 12181

    (7) Public accommodation

    The following private entities are considered public accommodations for

    purposes of this subchapter, if the operations of such entities affect

    commerce

    (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel

    service, shoe repair service, funeral parlor, gas station, office of an accountant

    or lawyer, pharmacy, insurance office, professional office of a health careprovider, hospital, or other service establishment;

    (K) a day care center, senior citizen center, homeless shelter, food bank,

    adoption agency, or other social service center establishment.

    Maine Human Rights Act cites similar types of public accommodations under

    5 MRSA 4553:

    8. Place of public accommodation. "Place of public accommodation" means a

    facility, operated by a public or private entity, whose operations fall within at least

    one of the following categories:

    E. A bakery, grocery store, clothing store, hardware store, shopping

    center, garage, gasoline station or other sales or rental establishment;

    F. A laundromat, dry cleaner, bank, barber shop, beauty shop, travel

    service, shoe repair service, funeral parlor, gas station, office of an accountant

    or lawyer, pharmacy, insurance office, professional office of a health care

    provider, hospital, dispensary, clinic, bathhouse or other service

    establishment;

    H. A museum, library, gallery or other place of public display or

    collection;

    K. A day-care center, senior citizen center, homeless shelter, food bank,

    adoption agency or other social service center establishment; and

    N. Any establishment that in fact caters to, or offers its goods, facilities

    or services to, or solicits or accepts patronage from, the general public.

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    8-B. Public accommodation. "Public accommodation" means a public or

    private entity that owns, leases, leases to or operates a place of public

    accommodation.

    8-C. Public entity. "Public entity" means:

    A. The State or any local government;

    B. Any department, agency, special purpose district or otherinstrumentality of the State, 2 or more states or a local government; and

    C. A state, local or private commuter authority as defined in the federal

    Rail Passenger Service Act, Section 103 (8).

    In 1866 [t]he American Society for the Prevention of Cruelty to Animals

    (ASPCA) was the first humane society to be established in North America and is,

    today, one of the largest in the world9and since 1877 the historic American

    Humane Association has been at the forefront of every major advancement inprotecting children, pets and farm animals from abuse and neglect.10

    As the court noted in Schwababove, a state or local agency delegating law

    enforcement duties to a private organization does not result in the avoidance of

    disclosure through a delegation to a private entity that which otherwise would be an

    agency responsibility."

    Where a private party and the government exist via what amounts under the

    law to a "symbiotic relationship" (like ox-peckers and rhinoceros), we have held the

    private party responsible as a state actor under 1983. In a symbiotic relationship

    the government has so far insinuated itself into a position of interdependence (with a

    private entity) that it must be recognized as a joint participant in the challenged

    activity."Burton, 365 U.S. at 725, 81 S.Ct. 856.Brunette v. Humane Society of

    Ventura County, 294 F. 3d 1205 - Court of Appeals, 9th Circuit 2002

    Federal, state and local governments regularly enter symbiotic relationships

    with privately created humane societies for animal welfare services and specialized

    animal law enforcement and control services because humane societiesstaff have

    specialized skills, education, training, experiences, licenses, privileges and

    9https://www.aspca.org/about-us/about-the-aspca10http://www.americanhumane.org/about-us/

    https://www.aspca.org/about-us/about-the-aspcahttps://www.aspca.org/about-us/about-the-aspcahttps://www.aspca.org/about-us/about-the-aspcahttp://www.americanhumane.org/about-us/http://www.americanhumane.org/about-us/http://www.americanhumane.org/about-us/http://www.americanhumane.org/about-us/https://www.aspca.org/about-us/about-the-aspca
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    relationships which would not be cost efficient for each federal, state and local

    government agency to reproduce at their own expense.

    42 U.S. Code 5651 - Authority to make grants

    (a) Grants to eligible States

    The Administrator may make grants to eligible States, from funds

    allocated under section 5652 of this title, for the purpose of providing financial

    assistance to eligible entities to carry out projects designed to prevent juvenile

    delinquency, including

    (20) programs designed to prevent animal cruelty by juveniles

    and to counsel juveniles who commit animal cruelty offenses, including

    partnerships among law enforcement agencies, animal control officers,

    social services agencies, and school officials;

    42 U.S. Code 5652 - Allocation

    (a) Allocation among eligible States

    Subject to subsection (b) of this section, funds appropriated to carry outthis part shall be allocated among eligible States proportionately based on the

    population that is less than 18 years of age in the eligible States.

    These two federal codes give the states and their municipalities compelling

    financial and socially significant incentives to enter symbiotic relationships with

    animal control officers for the design and implementation of programs designed to

    prevent animal cruelty by juveniles.

    Therefore, when any government agency enters explicit contracts with a

    privately created humane society to perform public benefit services at the publics

    expense which may sometimes result in 1st, 4th,5th, 7thand 14thAmendment and

    other constitutional violations, the courts must honor fullest public access to their

    records to guarantee the purposes of the public records laws are fulfilled in line with

    legislative intent for the protection of the publics animals, money and other public

    welfare interests.

    The Champagnes assert the Society is a private corporation, rather than a

    public or governmental entity. Thus, the doctrine does not apply. We disagree.

    Although the Society is incorporated as a private, nonprofit corporation, the City of

    Spokane has contractually delegated to the Society the authority to enforce the

    animal regulations of its ordinance. See RCW 16.52.020; Storey v. Seattle, 124 Wash.

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    598, 602-04, 215 P. 514 (1923). Likewise, the obligations contractually undertaken by

    the Society are no different than those otherwise owed by Spokane to the general

    public. Thus, in assuming those animal control duties contractually, the Society is

    essentially acting as a public entity. See State ex rel. State Humane Soc'y v. Hovey,159 Wash. 584, 587, 294 P. 258 (1930) (Humane Society "is not organized for the

    personal benefit of an individual or the personal benefit of any set of individuals, but

    is organized for the public good, and is in its substance and effect a public

    corporation."); Storey, at 602 (Humane Society is "a public corporation, created by

    state law, to enforce its penal laws relating to the regulation of cats and dogs.").

    Champagne v. Humane Society, 737 P. 2d 1279 - Wash: Court of Appeals, 3rd Div.

    1987

    B. Maine Supreme Judicial Court departed from accepted and

    usual course of judicial proceedings in this 12(b)(6) dismissal

    action by dismissing with prejudice after the movant failed to

    defend their motion which calls for Supreme Court review.

    The precedent is well settled that, Dismissal of a complaint is proper only

    when the complaint fails to state a claim for which relief may be granted. See M.R.

    Civ. P. 12(b)(6). A motion to dismiss tests the legal sufficiency of the complaint.

    Livonia v. Town of Rome, 1998 ME 39, 5, 707 A.2d 83, 85 (citing Richards v.

    Soucy, 610 A.2d 268, 270 (Me.1992)). For the purposes of a motion made pursuant to

    Rule 12(b)(6), the material allegations of the complaint must be taken as admitted.

    Livonia, 1998 ME 39, 5, 707 A.2d at 85 (citing Larrabee v. Penobscot Frozen

    Foods, Inc., 486 A.2d 97, 98 (Me.1984)). When reviewing a dismissal, we examine the

    complaint in the light most favorable to the plaintiff to determine whether it sets

    forth elements of a cause of action or alleges facts that would entitle the plaintiff to

    relief pursuant to some legal theory. See Livonia, 1998 ME 39, 5, 707 A.2d at 85. A

    dismissal should only occur when it appears `beyond doubt that [the] plaintiff[s]

    [are] entitled to no relief under any set of facts that [they] might prove in support of

    [their] claim.'McAfee v. Cole, 637 A.2d 463, 465 (Me.1994) (quoting Hall v. Board of

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    Envtl. Protection, 498 A.2d 260, 266 (Me.1985)).In re Wage Payment Litig., 2000

    ME 162, 3, 759 A.2d 217, 220

    "When ruling on a motion for summary judgment, this Court must view the

    evidence in the light most favorable to the nonmoving party." Am. Cargo Transp. v.Natsios, 429 F.Supp.2d 139, 145 (D.D.C. 2006) (citing Bayer v. United States Dep't

    of Treasury, 294 U.S.App. D.C. 44, 47, 956 F.2d 330, 333 (D.C.Cir.1992)). "The court

    must accept evidence provided by nonmovants as true, and all justifiable inferences

    are to be drawn in their favor." Hazward, 14 F.Supp.2d at 122 (citing Anderson v.

    Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).

    "[T]he judge's function is not himself to weigh the evidence and determine the truth

    of the matter but to determine whether there is a genuine issue for trial." Anderson,

    477 U.S. at 249, 106 S.Ct. at 2511. "[T]here is no issue for trial unless there is

    sufficient evidence favoring the nonmoving party for a jury to return a verdict for

    that party." 477 U.S. at 249, 106 S.Ct. at 2510 (citing First Nat'l Bank of Arizona v.

    Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1502, 20 L.Ed.2d 569 (1968))

    Daskalea v. Washington Humane Society, 480 F. Supp. 2d 16 - Dist. Court, Dist. of

    Columbia 2007

    Neither the Humane Society nor the Maine Supreme Judicial Court rebutted

    the Humane Societys yearly income tax IRS 990 and Schedule A forms which have

    consistently declared the Humane Society to be a publicly supported organization"

    because it receives 33 1/3 % or more of its support from a government unit or the

    general public,nor does the record reflect any rebuttal of the tens of thousands of

    dollars received yearly through government contracts with roughly 20-25 very small

    municipalities at local taxpayer expense.

    "The purpose of FOAA is to open public proceedings and require that public

    actions and records be available to the public." Town of Burlington v. Hosp. Admin.

    Dist. No. 1, 2001 ME 59, 13, 769 A.2d 857, 861; see also Great N. Paper, Inc. v.

    Penobscot Nation, 2001 ME 68, 43, 770 A.2d 574, 587. To promote such objectives,

    FOAA must be liberally construed. 1 M.R.S.A. 401 (1989); Town of Burlington,

    2001 ME 59, 13, 769 A.2d at 861. Thus, "[t]he burden of proof is on the agency or

    https://scholar.google.com/scholar_case?case=5375586253200259106&q=%2212(b)(6)%22&hl=en&as_sdt=4,20https://scholar.google.com/scholar_case?case=5375586253200259106&q=%2212(b)(6)%22&hl=en&as_sdt=4,20https://scholar.google.com/scholar_case?case=5375586253200259106&q=%2212(b)(6)%22&hl=en&as_sdt=4,20https://scholar.google.com/scholar_case?case=5375586253200259106&q=%2212(b)(6)%22&hl=en&as_sdt=4,20https://scholar.google.com/scholar_case?case=5375586253200259106&q=%2212(b)(6)%22&hl=en&as_sdt=4,20https://scholar.google.com/scholar_case?case=5375586253200259106&q=%2212(b)(6)%22&hl=en&as_sdt=4,20
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    political subdivision to establish just and proper cause for the denial of a FOAA

    request." Town of Burlington, 2001 ME 59, 13, 769 A.2d at 861. Dow v. Caribou

    Chamber of Commerce and Industry, 2005 ME 113

    Contrary to the Maine Supreme Judicial Courts determination, AlthoughHSWA is funded in part by its contracts with area cities and towns, it receives the

    bulk of its funding from private donations,it is a matter of public record that the

    bulk of money collected by cities and towns is received directly from the inhabitants

    and taxpayers through real estate taxes, sales taxes, registration fees, license fees,

    permit fees, and other types of governmental fundraising which is used to pay for

    service contracts with local humane societies and animal control officers to patrol

    the municipalities and care for the communities animals.The Maine courts

    distinction that governmental funding is derived from a different source than are

    private donations is an erroneous determination subject to Supreme Court review.

    After the Maine Supreme Judicial Court took six months to precisely review

    the entire record which is full of GinAs motions, affidavits, memorandum and

    exhibits and which lacks any well-plead motions or affirmative defenses by the

    Humane Society, the court sealed their decision and the fate of the Maine people by

    ruling, Even accepting all of the factual allegations in the complaint as true,

    Turcotte has not stated a claim that entitles her to relief on her claim to compel

    HSWA to provide her access to its records. The Maine Supreme Judicial Court

    affirmed the prejudicial ruling of 12(b)(6) dismissal thereby violating GinAs and the

    publics right to due process when a humane society seizes their animal, equal

    protection of the law when an animal control officer decides an animal may be at

    risk of harm and seizes the animal without a hearing or trial by jury as guaranteed

    by the 1st, 4th, 5th, 7thand 14thAmendments.

    This decision by the highest court in Maine directly deviates from accepted

    and usual course of judicial proceedings in 12(b)(6) proceedings when the movant

    fails to rebut the nonmovantsmemorandum of law in opposition with evidence as

    extracted from public records searches on government websites and which amply

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    establishes issues of material fact to which GinA and the public has a right to due

    process and trial by jury under the 1st, 4th, 5th, 7thand 14th Amendments.

    If the Maine Supreme Judicial Court accepted all the material allegations of

    GinAs complaint and all supporting evidence as true and admitted, together withthe Humane Societys willful, intentional and prejudicial failureunder MRCivP 8(d)

    and FRCivP 8(b)(6) to defend their 12(b)(6) motion, the court would have reversed

    the dismissal of the Superior Court and would have ordered the Humane Society to

    produce the records as requested.

    The record shows there are many genuine issues of material fact which need

    to be presented to a jury to determine if the interconnected relationship of state and

    local government action with the actions of the humane societies creates the

    symbiotic relationship necessary to hold the state and humane societies jointly

    responsible for constitutional due process violations which occur as a result of

    acti