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Court Nullifies Improved Law in Billings, Montana
Billings Gazette - Billings, Montana - Written by Greg Tuttle - November 15, 2004
Twinkie Deedee and Yipper Skidaroo wriggled with excitement as Marceline Carmack peered through her garage door and called to the Yorkshire terriers. "Here I come," the 92-year-old Billings woman told the small dogs.
Twinkie and Yipper bounded from an enclosure on the covered back porch as Carmack swung open a small gate.
After a brief flurry of greetings, Carmack and her two little dogs settled down on a bench. She held the dogs on her lap trying without success to keep their lapping tongues from reaching her face.
"He was a little barker when he was little, so I called him Yipper," Carmack explained. "They just love people. How could they be a nuisance?"
Carmack's little terriers haven't been accused of being nuisances, but another pooch that Carmack named Cuddles landed the elderly woman in legal hot water earlier this year.
Carmack was cited twice in April by a Billings animal control officer for violating the city's noisy pet ordinance. She and two of her neighbors were among about a dozen residents to receive similar citations after the City Council late last year revised the law by making it easier for the owners of barking dogs to face criminal charges and fines in Billings Municipal Court.
The council also increased the penalty for residents convicted of keeping a noisy animal, and it created a special license for pet owners with more than four animals.
Carmack was prepared to fight the citations. But in September, just days before her trial was scheduled to start, the case against Cuddles was dismissed. In court records, a deputy city attorney said without further explanation that the dismissal was "in the interest of justice."
Carmack is not so sure. She has since found a new home for Cuddles, but she described being accused of even a misdemeanor crime as "the greatest shock of my life." Carmack said she gave Cuddles away because the little dog was too rambunctious. "I loved her and I would have loved to keep her, but it wasn't to be," she said. Cuddles now lives with another family in Billings.
Carmack said she understands the need to control noisy animals, but she wonders whether the city law that was used in an attempt to muzzle Cuddles is fair. Under the revised law, it takes just one person to complain about a neighbor's barking dog for an animal control officer to write the dog owner a citation. The law used to require complaints from three sources.
"Hopefully, that law will change, and that's all I can say," Carmack said. Bruce MacIntyre disagrees. It was MacIntyre's wife who filed the complaints against Carmack and two other residents in their West End neighborhood. The complaints led to citations against the neighbors, but none of the cases resulted in a conviction. And while Cuddles may have moved on, MacIntyre said other neighborhood dogs continue to bark and disrupt their lives.
"It's almost like a license to do as you please," MacIntyre said. "I figure, you got a law on the books, it's not up to me to enforce it. It's up to the city. If it's a flawed law, it's up to the city to change it."
Animal Control Supervisor Dave Klein said he thinks the revised noisy pet ordinance doesn't need to be revised again. Since Cuddles' case drew public attention last June, Klein said he has refined his agency's procedures for applying the law and has given his staff more training and direction about writing citations for noisy pets.
A 24-year veteran of the animal control business, Klein said he has researched the laws of other cities around the country and has found few that work in a way that makes everybody happy. Barking dogs and neighbors who enjoy quiet simply do not mix. "It is a headache for us," he said. "We all love our pets, and when you start accusing my pets of things, it's like accusing my kids of things, and you're going to end up in an argument."
Recognizing the nuisance that barking dogs create in neighborhoods - and the difficulty of fixing it with, in effect, a law against barking - Klein said his office offers information on why dogs bark as well as training resources.
Klein said his officers are careful to watch for residents who may try to use the noisy pet ordinance to harass their neighbors. False reporting, he said, is a crime and is taken seriously. Still, residents have expressed concerns about being wrongly accused of harboring a nuisance pet, Klein said. "What I'm getting from a lot of pet owners is that they think their neighbors can use the ordinance to get at them," he said. "It is an issue we have a concern about."
Since the revised law was adopted in November 2003, Klein said, animal control officers have issued 11 citations for noisy animal violations. The year before the change, when complaints from three sources were required, officers issued one citation, he said. Carmack said she's not sure why her neighbor filed so many complaints. In a four-page log kept by Linda MacIntyre and filed as evidence in the case against another neighbor, Dale Miller, she described the "yappy bark," "intermittent yappy bark," "steady yappy bark" and "constant yappy bark" that disrupted her peace.
In a five-month period ending May 12, Linda MacIntyre noted in the log 97 incidents of various degrees of "yappy barking" from Miller's two poodles. Miller, who did not return a message seeking comment, was issued a citation March 17, about a month before Carmack received her citation.
In a complaint summary also filed in court records, Linda MacIntyre wrote that the only time she has relief from the Millers' barking poodles "is when I am miles away." In a letter sent to the Billings Animal Shelter regarding her complaint against Carmack, Linda MacIntyre said her "quiet environment and human rights continue to be violated by her dog's incessant high-pitched barking."
Another neighbor, Terrill Stoltz, was issued a citation for noisy dogs in May based on complaints by Linda MacIntyre. Stoltz did not appear for arraignment and a $200 warrant has been issued, according to court records. He also did not return a message from The Gazette seeking comment.
A bench trial in the Miller case was held Sept. 2 before Municipal Judge Mary Jane McCalla Knisley. According to court records, Linda MacIntyre testified at the hearing and admitted she might have an "extraordinary sensitivity" to the noise of barking dogs. The judge dismissed the charge. A week later, city prosecutors dismissed the case against Carmack. City Public Defender Josh Miller, who represented Carmack, said he thinks Miller's acquittal "played a significant role" in the dismissal of the charges against Carmack.
Carmack said she was both relieved and disappointed that she didn't get her day in court after months of worrying about the criminal complaint against her. She had never been in a courtroom until she was arraigned in the Cuddles case in April, she said. "I was kind of sorry I didn't go to court," Carmack said. "I was ready to go."
In a recent interview, Bruce MacIntyre said he was "a little surprised" when prosecutors dropped the case against Carmack. His wife didn't want to be interviewed for this story, he said.
Bruce Macintyre said he and his wife have owned two adjoining condominiums in the neighborhood for 15 years. His wife uses one of the condos as an office where she does accounting work, he said, and she was involved in an auto accident several years ago that has made her more sensitive to noise. The couple has been bothered by barking dogs since they bought the properties, but the city animal control officers did not act on their complaints until the new ordinance was passed, he said.
Bruce MacIntyre said they have had some conversations with the Millers since the court case and things have improved. But other dogs in the neighborhood continue to bark and bother the couple, he said. Linda Macintyre continues to keep a log to document the barking, but they have not filed any new complaints against their neighbors. "It doesn't make much sense at this point," he said.
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