Sennes will get day in court, judge rules; Hodge or HSUS will have to produce couple’s pets or pay
The judge deemed some actions by Sheriff Alex Hodge and the Humane Society of the United States as “unconstitutional” before ruling that Col. David and Mary Ellen Senne will get their day in court to find out what happened to five dogs that were taken from their home during a raid on the property last July.
Judge Dal Williamson had some scathing words for how the case was handled by Hodge’s department and HSUS as he denied the latest motions their attorneys filed in Jones County Circuit Court.
“Aside from the issue of the constitutionality (of the seizure) … there are troubling aspects as to the process by which the Sennes lost their five household dogs,” Williamson wrote in a 28-page response to Hodge and HSUS’ motion seeking reconsideration of the judge’s previous order denying their motion for summary judgment in the case.
“There was no testimony or sworn statement as to cruel treatment, neglect or abandonment of dogs within the household of the Sennes,” Williamson wrote, noting that the only buildings that were specifically identified by members of Southern Cross Animal Rescue officials’ affidavits for the search warrant were an “octagonal-shaped pavilion” and a “cinder-cement block building” where unadoptable rescue animals were being kept. “Therefore, there was no probable cause as to dogs within the home of the Sennes.”
The judge was also troubled by the fact that a Notice of Seizure signed by Mrs. Senne required her to pay $4,750 to avoid the forfeiture of the five family pets.
“In a roundabout way, it appears that either the Sheriff’s Department or The Humane Society ‘determined’ the bond rather than ‘the Court,’” Williamson wrote.
The notice of the forfeiture hearing, “to this Court’s knowledge,” was not provided to the Sennes, as ordered by the Justice Court, he continued.
Williamson also shot down an argument by Hodge that picked apart the specific language used in a HSUS surrender form Mrs. Senne signed and in a cellphone video of a HSUS spokeswoman speaking to the Sennes’ family friend Sean Murphy, who is also the Leader-Call’s managing editor.
In the argument to support the motion for reconsideration, Hodge claims that it was never stated that the five pets would not be “removed” from the property, only that they would not be “surrendered” or “relinquished.” He argued that their five dogs “were never surrendered” but were instead “seized.”
But Williamson quoted from the video, in which the HSUS spokeswoman said, “we will not touch” the household pets and the surrender form, which read: “All animals removed from the property listed above with the exception of 1) Miss Poo 2) Loco 3) Sister Angel 4) Precious 5) Abby.”
That “specific language … would cause most people to believe that the named dogs would not be taken from the Plaintiffs’ property the day of the seizure,” Williamson wrote.
The Notice of the Seizure appears on the letterhead of the Jones County Sheriff’s Department with a “total estimated bond or cash security deposit” of $4,750 for 30 days of care for the five seized pets. “Likely unbeknownst to Mary Ellen Senne at the time,” Williamson wrote, Mississippi Code “requires that the Court hold a hearing within 14 days of receiving a request for a hearing.“
For 14 days of care, “utilizing the rates and amounts set in the Notice of Seizure,” that amount should have been $2,750, the judge wrote. But the amount is not the most troubling matter, he continued. State code shows that if an animal owner can’t pay that amount to a court clerk within three days of the request for a hearing, then the animal(s) are forfeited to the court.
“This Court finds that this procedure and requirement is a violation of the ‘absolute’ right to procedural due process of the Sennes and a violation of their 14th Amendment right to procedural due process,” Williamson wrote. He then showed case law from both the state and U.S. supreme courts ruling that, “An unconstitutional law is void … An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void.”
The state Attorney General’s Office has taken no written position on the constitutionality of the statute despite a request that was made for one by the Sennes’ attorney, J. Ronald Parrish.
“The seizure of the five household dogs of the Sennes is therefore set aside as a void act,” Williamson wrote. “The Court further sets aside the Order of Forfeiture, and all acts that have resulted in the displacement of the (Sennes’) five household dogs.”
A “Pre-Deployment Cooperative Agreement” between Hodge and the HSUS, signed four days before the raid, shows the JCSD as the “Initiating Organization” that was requesting the assistance of the HSUS with the animal rescue. It also shows that the JCSD would transfer the responsibility for the care of all the seized animals to the HSUS, but both parties agreed that custody “would at all times remain” with the JCSD, Williamson wrote. HSUS officials also agreed to make the animals available to local authorities, if needed, for trials or other proceedings. The agreement was binding until there was mutual written termination of it.
“This Court has not been provided with any prior written approval by the Sheriff’s Office authorizing HSUS to transfer any of the animals to the care of another organization,” the judge wrote, “Nor have either of the Defendants provided the Court with any mutual written termination of the Agreement by the parties …”
Because of that and with the Forfeiture Order “having been entered pursuant to an unconstitutional statute, it is difficult to determine who has legal possession of the dogs,” Williamson wrote. But “it is clear that there is a genuine issue as to possession/constructive possession of the five dogs.”
Constructive possession is defined as “possession not actual but assumed to exist … by virtue of some title.” The state Supreme Court has ruled that replevin actions can be maintained with defendants who have constructive rather than actual possession of disputed property.
The case of the Sennes’ five missing pets first came to Jones County Circuit Court almost a year ago, when they filed a Complaint of Replevin on Aug. 9, 2018. A replevin action is a procedure by which seized items can be returned to the owner pending the outcome of a legal action. The Sennes were charged with misdemeanor animal cruelty after the raid on their property led to the seizure of 55 dogs, 34 cats and 17 deceased animals that were being stored in freezers in preparation for burial in a cemetery beside a chapel the Sennes had constructed on the property.
Hodge claimed that their five pets “were forfeited by operation of law to the Justice Court of Jones County” and an order from that court authorized the JCSD to transfer ownership to “an organization to house and care for the animals.” HSUS makes the same claim, adding that the sheriff”s department transferred ownership to HSUS, which, in turn, transferred ownership to another unspecified animal rescue organization in the Washington, D.C. area on July 21, 2018 “to provide veterinary care and to find the animals permanent homes.”
An affidavit by Sara Varsa, vice president of HSUS, signed on Oct. 30, 2018, makes that claim, but it is devoid of detail.
“It seems somewhat curious that Ms. Varsa fails to state what ‘animal rescue organization’ the five dogs were transferred to,” Williamson wrote. “It would seem reasonable that the ‘Vice President, Animal Rescue Team’ of The HSUS with personal knowledge of the facts of this case should know and have records of which organization the five dogs were transferred to, the day the transfer occurred, and the terms and conditions of the transfer.
“The fact that this more specific information is conspicuously lacking from Ms. Varsa’s affidavit concerns the Court that her affidavit is merely self-serving and conclusory and therefore unpersuasive.”
The court also denied Parrish’s motion for summary judgment in the case and noted that he had not provided “requisite notice of claim” to Hodge, which is required to be done in civil actions against government officials and or agencies, according to the Mississippi Tort Claims Act.
Williamson also denied the motion for additional time that was filed by HSUS and Hodge’s attorneys from the Phelps Dunbar law firm in Gulfport. He ordered the attorneys for all parties to contact his court administrator for a trial date.
“If plaintiff (the Sennes) prevails, the judgment in a replevin action is either for possession of the property or the value of the property,” Williamson wrote … (I)f the property ‘cannot be found,’ other damages may be awarded because of “the wrongful taking.”
In early hearings, Parrish accused attorneys for both Hodge and HSUS of using the “I ain’t got it no more defense.” He warned that could set a precedent for anyone who steals anything from anyone. “All they’d have to do is say, ‘Sorry, I don’t have it any more,’” he said.
The Sennes also claimed, in the original complaint, that the search warrant was issued based on the affidavit of Lt. David Ward, “whose affidavit is based entirely on hearsay and without Ward’s personal knowledge and without any indication that the four informants from SCAR had given reliable and credible information in the past that had led to arrests and convictions of offenders.” Parrish also argued at the time that the search warrant was invalid, the seizure was illegal and unconstitutional.