Phillips v. Ingham County

• Decision Date: 21 March 2005
• Docket Number: No. 5:04-CV-22.,5:04-CV-22.
• Citation: 371 F.Supp.2d 918
• Parties: Alice Anna "Allie" PHILLIPS, Plaintiff, v. INGHAM COUNTY, Stuart J. Dunnings III, and Roger Fleming, Defendants.
• Court: U.S. District Court — Western District of Michigan

371 F.Supp.2d 918

Alice Anna "Allie" PHILLIPS, Plaintiff, v. INGHAM COUNTY, Stuart J. Dunnings III, and Roger Fleming, Defendants.

No. 5:04-CV-22.

United States District Court, W.D. Michigan, Southern Division.

March 21, 2005.

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James K. Fett, Fett, Roumel & Fields, P.C., Pinckney, MI, for Plaintiff.

John R. McGlinchey, Cohl, Stoker & Toskey, P.C., Lansing, MI, for Defendants.

OPINION

ENSLEN, District Judge.

Nothing defines human history like the collision of steadfast wills. When those wills are motivated not by self-interest, but by the highest impulses of duty and self-less love, then even the gods in heaven abandon their chores and keenly watch the tragedy sure to unfold below. Watch now as the story unfolds.

FACTUAL BACKGROUND

Plaintiff Allie Phillips was and is, by all accounts, a talented lawyer and lover of animals. She did her job as an Assistant Prosecutor for Ingham County admirably and to the satisfaction of her superiors. (Dunnings Dep. at 5.) While a lawyer, her chief non-legal avocation was the advocacy for and rescue of unwanted animals, cats and dogs, collected by the Ingham County Animal Shelter. Due to her dedication, she was elected president of the Friends of the Ingham County Animal Shelter, an organization she helped to establish. As part of this avocation, she also befriended and assisted Defendant Roger Fleming, the then Director of the Ingham County Animal Shelter. He gave her a key to the Shelter so that she could assist there and use the Shelter for animal fund raising events. (Phillips Dep. at 288-90.)

Managing an animal shelter is under our laws, unfortunately, a dirty job. The sad fact of it is that many of the animals found will not be returned to owners or adopted, but will be euthanized. Under Michigan statute, a marked¹ stray animal is considered property of the legal owner for a seven-day statutory period, during which time, the owner may make a claim for the animal with the shelter. See Mich. Comp. Laws § 287.388; see also Rockwell v. Oakland Circuit Judge, 133 Mich. 11, 94 N.W. 378, 378-79 (1903) (stating that Michigan had abandoned the common law rule that dogs were base property which could not be stolen); Finley v. Barker, 219 Mich. 442, 189 N.W. 197, 197 (1922) (same). After that period, shelters permit the "adoption" of the animal (meaning the transfer of the animal to a new owner for the purpose of companionship). See Mich. Comp. Laws §§ 287.331(a) and 287.338a. The shelter may also either euthanize the animal or sell it for a $10 fee for use in research. See Mich. Comp. Laws §§ 287.388-287.389.

Prior to the events at issue, Defendant Fleming had interpreted the state's laws as permitting him to sell dogs and cats to class B dealers for re-sale to research institutions.² This practice had been commonplace in Ingham County because of Michigan State University's use of a large number of research animals. Controversy accompanied this practice for obvious moral and ethical reasons relating to the treatment of animals. In light of such controversy, the County had adopted, by resolution, a policy permitting a lawful owner whether or not the animal was marked, even after the sale of an animal for research purposes, to redeem a cat or dog, to the extent possible, by making a claim of ownership with the Shelter and by paying costs associated with the animal's care.³ (Fleming App., Ex. H; Felming Dep. at 123-24.)

Having painted the prelude of the events, what follows is the story of a sale of an animal to a class B dealer and the animal's illicit rescue by the Assistant Prosecutor. Most, if not all, of the facts are agreed; though their legal consequences are the subject of furious debate.

On or about February 1, 2003, Phillips sent an e-mail to Carrie Schotte, an animal rescue friend, which states:

Hi Carrie! I have a favor to ask? I'm not sure if you've been updated by Teresa or read the Lansing State Journal today about the problems at the shelter? Anyway, would you be willing to play the part of a person who lost her black cat and because of where you lived you never thought to go to the Ingham County Animal Shelter to look for her? We had one of our beloved shelter cats, Karyn, sold to a Class B Dealer this past week for purposes of research. We are all devasted. We're trying to find a way to get her back. In the past, the shelter director and the class B dealer have said that if an owner steps forward, they will return the animal to its owner. In June 2001, I tested that and both the shelter director and the class b dealer were caught in a lie because they didn't return the cat. I want to test this again, but I need someone from just outside Ingham County to play the part of the pet owner. I can give you more details about how this can work if you're willing to do it? It would require you to call the shelter first thing Monday morning and even possibly go to the shelter with a photo of the cat (which Christine in our group can provide). Let me know what you think? By the way, Kipling is doing great!

(Fleming App., Ex. C.) The references to play acting are consistent with Plaintiff's theory of this case — that she and her helpers were properly investigating and "testing" the responses of the Shelter.⁴

Upon receipt of the e-mail, Schotte agreed to the request. (Schotte Dep. at 33-34.) Plaintiff then had further conversations with Schotte about how to tell a convincing story of animal ownership to the Shelter, including a discussion of details about when the cat was "lost," about whether the cat was sterilized, the size of the cat, and the "discovery" of the Shelter's possession of the cat by reading an advertisement posted by the Friends of the Ingham County Animal Shelter in the Wheeler Dealer magazine. (Schotte Dep. at 37, 39; tel. notes, Pl.'s Resp. to Ingham Co.'s Mot., Ex. Y.)

Shotte made her telephone call to the Shelter on February 3, 2003 and relayed the rehearsed story, including the "detail" that she did not have veterinarian records because she did her own vet work. (Schotte Dep. at 43-44.) She then e-mailed Phillips with questions. Phillips responded on February 4, 2003 as follows:

I don't know how we can get the cash to you by tomorrow. I'm in a trial all day and Christine is sick. Christine will get in contact with you about where to take her when you get her. Those creeps always take checks from people. Can you pay by credit card? Let us know if you want the full $300 reimbursement or parts? I have a few people willing to donate (even though they don't know the cause). Thank you so much for doing this. Can you give Christine the tape recording of the message Steve left for you, plus any conversations you record tomorrow?

(Ingham Co. Br., Ex. 10.)

Following this advice, Schotte went to the home of Christine Knetchel who, it had been arranged, was to provide Schotte with a cat carrier and cat photographs to "prove ownership." (Schotte Dep. at 49.) Knetchel told Schotte to bring the cat to Knetchel's apartment. (Id. at 50.) Schotte then went to the Shelter, identified the cat as her own, and showed the photographs. (Schotte Dep. at 51-52; Fleming Dep. at 126.) She also signed a statement which read:

I declare that I am the owner/authorized agent of the owner (strike one) of the above described animal and that the information above is true to the best of my knowledge and belief.

(Fleming App., Ex. E.) The form was notarized, though apparently, the notarization was done outside of the presence of the signatory. (Dawn Perry Dep. at 30-31.). Schotte also failed to strike any language on the form. (Fleming App., Ex. E.)

Upon completion of the form and the payment of $295 for the boarding of the pet, the cat was released to Schotte. (Id.) Hot on her heels was Roger Fleming who smelled a rat.⁵ He followed Schotte to Knetchel's apartment in Mason, Michigan where the cat was delivered. (Fleming Dep. at 128; Schotte Dep. at 55-57.) He then followed Schotte to Jackson, Michigan. (Fleming Dep. at 131-32.) There he identified himself as the Shelter Director and asked her if she was involved in criminal conduct. (Id. at 133.) She and Fleming then went to a nearby Bob Evans restaurant where she admitted that she was not the owner of the cat, admitted that she was acting at the direction of Phillips, and provided a written statement of her admissions. (Fleming App., Ex. G.) She also provided copies of her handwritten notes of telephone conversations with Phillips and of e-mail messages sent to her by Phillips.

Based on these admissions, Fleming then filed papers with the Prosecutor seeking a search warrant of Knetchel's apartment on the theory that she had conspired to commit the offense of larceny under $200 by false pretenses.⁶ The warrant request was prepared by the Prosecutor and presented to an examining magistrate, who approved it. (Ingham Co. Br., Ex. 15.) Fleming and several Sheriff Deputies then searched the residence — though the only thing of substance found were the photographs that Schotte had used to prove animal ownership. (Fleming Dep. at 142-43.) The cat was not discovered, (id.), because Knetchel had removed and transferred her to friends before police arrived. (Phillips Dep. at 72-78.). So, presumably, this story has ended happily for Karyn.⁷

Roger Fleming⁸ then compiled an investigative report relating to this matter. (Fleming Report, Pl.'s Ex. W-1 & W-2.) The report was forwarded to the Prosecutor. Prosecutor Dunnings had then Chief Assistant Prosecutor Joyce Draganchuk⁹ draft a request for a special prosecutor (due to conflict of interest) which by law was directed to Michigan's Attorney General. (Draganchuk Dep. at 21; Ingham County Br., Ex. 18.)

At the same time the criminal process was marching forward, Dunnings had set in motion an administrative process to determine whether Phillips should be fired. Under state law, an assistant prosecutor...