Taub v. State
| Decision Date | 10 August 1983 |
| Docket Number | No. 123,123 |
| Citation | 463 A.2d 819,296 Md. 439 |
| Parties | , 42 A.L.R.4th 853 Edward TAUB v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
James Robert Miller, Rockville (Miller & Steinberg, Rockville, on brief), for appellant.
David Favre, San Francisco, Cal.; Ruth Flaherty, Karen Levitt, Sarah Luick, Patricia Petow, Wilma Rosenberg and Steven M. Wise, Brighton, Mass. and Edward L. Genn, Rockville, on brief, for amici curiae Attys. for Animal Rights and Attys. for Animal Rights-Boston, Inc.
Carmina Szunyog, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.
Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.
The issue in this case is whether the animal cruelty statute, Maryland Code (1957, 1976 Repl.Vol.), Article 27, § 59, is applicable to a research institute conducting medical and scientific research pursuant to a federal program. For reasons to be discussed herein we hold that it is not.
Dr. Edward Taub was the chief scientific investigator in charge of animal research at the Institute for Behavioral Research (IBR) which operated a laboratory in Silver Spring, Maryland. This laboratory was funded by the National Institutes of Health (NIH) under a series of grants outlining the specific animal research to be done by the laboratory. The United States Department of Agriculture (USDA) was charged with making periodic announced and unannounced inspections of the laboratory pursuant to the Federal Animal Welfare Act, 7 U.S.C.A. §§ 2131-2156 (1973 and 1976 Supp.).
During the period May-September, 1981, Dr. Taub, under an NIH grant, was conducting research to gain information to help retrain human beings afflicted with a stroke. In an effort to learn to retrain limbs damaged by a stroke, Dr. Taub simulated the effects of a stroke by creating an animal model of the conditions in humans. This was accomplished by surgically abolishing all sensation in the limb of a monkey; thereafter, experiments could be performed to retrain that limb. The surgical procedure is known as somatosensory deafferentation.
Acting on information furnished by a former employee of the laboratory, Montgomery County police investigated conditions therein, seizing a colony of monkeys pursuant to an order of court. Thereafter, in January, 1982, the county State's Attorney filed a seventeen count information against Dr. Taub charging him with violation of Maryland Code (1957, 1976 Repl.Vol.), Article 27, § 59, with regard to seventeen different monkeys. Following a trial in the District Court, Dr. Taub was found guilty of failing to provide necessary veterinary care for six of the monkeys and was acquitted of all other charges. 1 Upon appeal to the circuit court, a jury found Dr. Taub guilty of one charge of failing to provide necessary veterinary care for one monkey known as Nero.
We granted certiorari to consider a question of public importance.
While Dr. Taub has raised several issues concerning the constitutionality of section 59, preemption of this section by the Federal Act, and certain alleged errors in the trial court's evidentiary rulings, we believe the matter may be disposed of by our conclusion that section 59 simply is inapplicable to Dr. Taub and the laboratory and thus the charges against him should be dismissed. We recognize that this issue was not raised previously although it was discussed at oral argument. Under Maryland Rule 813 a our scope of review is "ordinarily" limited to questions raised and decided by the trial court. Nevertheless, as the rule employs the term "ordinarily," it permits exceptions and we have occasionally decided cases on issues not previously raised. See, e.g., Squire v. State, 280 Md. 132, 368 A.2d 1019 (1977); Bartholomey v. State, 260 Md. 504, 273 A.2d 164 (1971), vacated in part and remanded on other grounds, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759 (1972), reh'g denied 409 U.S. 901, 93 S.Ct. 180, 34 L.Ed.2d 162 (1972); Martin G. Imbach, Inc. v. Deegan, 208 Md. 115, 117 A.2d 864 (1955). Because our conclusion as to this issue is completely dispositive of the case, we shall consider it.
Torture and cruelty were thereafter defined "to include everything whereby unjustifiable physical pain, suffering, or death [w]as caused or permitted...." (Emphasis added.)
In 1904, this chapter became sections 57 and 58 of Article 27 without change. The next legislative action of significance, pertinent to the issue before us, occurred in 1955, Chapter 19, when a specific penalty for violation of the section was provided. 2 In 1957, by Chapter 296, the legislature removed from the provision the language "in the discretion of the Court." By Chapter 718 of the Laws of 1963, the penalty provision was changed to provide for up to ninety days imprisonment. The legislature increased the fine provision to $1,000.00, in 1966, by Chapter 333. In 1972, by Chapter 719, the legislature repealed the pertinent sections and enacted a new section 59 to read as follows:
"Any person who (1) overdrives, overloads, deprives of necessary sustenance, tortures, torments, cruelly beats, mutilates or cruelly kills; or (2) causes, procures or authorizes these acts; or (3) having the charge or custody of an animal, either as owner or otherwise, inflicts unnecessary suffering or pain upon the animal, or unnecessarily fails to provide the animal with proper food, drink, air, space, shelter or protection from the weather, is guilty...."
Section 62 was amended to define "torment", otherwise it remained essentially unchanged. In 1975, by Chapter 716, section 59 was repealed and reenacted with the language as it was at the time of the inception of this case, as set forth below:
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