Superior court dismisses dog euthanasia appeal

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A superior court judge has dismissed a Colchester dog owner’s appeal after the resident failed to appear for a hearing in Burlington last Wednesday. The decision upholds the euthanasia directive handed down by the selectboard in March.

“The town achieved its goals in getting this appeal closed out,” town attorney Bryan Monaghan said. “We’re happy that the court has dismissed this appeal.”

The town board first convened for a quasi-judicial hearing at the Blakely Rd. offices following reports that Jason Hathaway’s pitbull-Labrador mix, Marley, viciously attacked an 11-year-old girl’s face during a birthday party for Hathaway’s daughter.

After hearing lengthy testimony from several witnesses who detailed other past run-ins with the dog, the selectboard unanimously ordered the animal “humanely destroyed.” Hathaway quickly appealed that ruling.

Judge Robert A. Mello ultimately quashed Hathaway’s appeal after Hathaway did not attend the Nov. 29 hearing, but court documents show the town was actively pursuing a settlement that would have allowed the dog to live up to that point.

Outside the courtroom, Monaghan confirmed Hathaway had challenged the validity of the original citizen complaints delivered to the selectboard over the course of the appeal process.

In March, the town’s active dog ordinance required boards to collect at least three written complaints authored by Colchester residents before moving forward with a hearing.

A settlement later proposed by the town sought to permanently extend the terms of Marley’s emergency health order originally enacted in May as the appeal was ongoing, documents show.

“The town of Colchester agrees the animal will not be humanely destroyed unless and until the animal is reported to have bitten another human or animal,” the filed draft stipulation concludes.

To date, Marley’s conditions have included quarantine in Hathaway’s Prim Rd. home, confinement to a single locked room when guests visited and a leash and muzzle whenever taken outside or to the veterinarian, according to the court documents.

Monaghan said he read these terms to Hathaway on the phone, who verbally stated they sounded favorable, Monaghan said, and agreed to sign the document at his office — but never showed up and stopped answering calls.

The attorney was prepared to argue for enforcement of that settlement agreement at the start of the Nov. 29 hearing, but instead moved on the record to dismiss the entire appeal when Hathaway did not come before the judge.

“He was fully aware of his obligation to be here today,” Monaghan said. “Irrespective of what we’re doing today, Mr. Hathaway is not here and the appeal, at the end of the day, is his appeal.”

On Monday, assistant town manager Aaron Frank said the town had only just received the judge’s dismissal and was still exploring its legal options. No action had been taken to enforce the euthanasia order at that time. Any subsequent decisions would be made public, Frank noted via email.

The unsigned stipulation also included a provision requiring Hathaway to promptly inform town manager Dawn Francis should he move out of Colchester. The town only has enforcement power within its boundaries.

The selectboard has since revamped its dog ordinance, notably removing the residency requirement for written complaints and requiring only one submission to trigger the hearing process.

The new regulations define terms like “enforcement officer,” and “potentially vicious dog.” The latter states the designation “shall not apply if the dog was protecting or defending itself” or if another animal or person provoked the dog.

During public discussion about the new ordinance, Francis said the town had seen an uptick in dog-related complaints over the past two years.