Judges from the Virginia Court of Appeals heard arguments from attorneys for both Natural Bridge Zoo and the Virginia Attorney General’s Office last week regarding the seizure of 100 animals from the zoo in December of 2023.
Aaron Cook, the attorney for Karl and Debbie Mogensen, made two arguments to the three-judge panel for overturning the verdicts of the jury and returning the 71 animals that were awarded to the state to the Mogensens.
His first argument focused on the code section under which the case was tried in Rockbridge County Circuit Court, section 3.2-6569 of the Virginia state code. The code allows for the seizure of an animal that “has been abandoned, has been cruelly treated or is … in such a condition as to constitute a direct and immediate threat to its life, safety or health.”
The section applies not just to private owners but also to “every public or private animal shelter or other releasing agency, and every foster care provider, dealer, pet shop, exhibitor, kennel, groomer and boarding establishment,” Cook argued in a brief filed with the court of appeals earlier this year.
In last week’s arguments, he argued that Karl and Debbie Mogensen were not the owners of the animals, but exhibitors of the animals, and more specifically, exhibitors who were operating under a license from the United States Department of Agriculture. In section 3.26500, the definition of exhibitor explicitly exempts USDA licensed exhibitors from the definition for purposes of the codes of that section, including 3.2-6569, Cook argued.
Judge Stuart Raphael said that he interpreted the code section to include exhibitors as well as owners and not to make a distinction between the two for purposes of seizing animals. Cook noted that the animals were owned by an LLC at the time of the seizure and not the Mogensens, though he did acknowledge that Karl Mogensen was a member of the LLC.
“I don’t think he is an owner,” Cook said. “I think he is an exhibitor.”
Cook also argued that Judge Christopher Russell had erred in his ruling to deny a motion from the Mogensens’ attorneys for a hearing on a motion to suppress evidence seized in the December 2023 searches of the zoo and the Mogensens’ residence.
Cook argued that, while the seizure of the animals is a civil matter and not a criminal one, an evidentiary hearing was still warranted due to the “quasi-criminal” nature of the allegations of inadequate care. He cited the 1965 U.S. Supreme Court case of One 1958 Plymouth Sedan vs. Pennsylvania, in which the court ruled that civil forfeiture did not apply in cases where the evidence used to justify the forfeiture was obtained illegally.
Judge Lisa Lorish noted that the Virginia Court of Appeals had ruled on a case of animal seizure in 2009, and had held that it was a civil issue because “it was not so punitive in effect as to transform the civil remedy into a criminal penalty,” and asked Cook why the court “wouldn’t be bound by that decision?”
Cook argued that the seizure of animals at the Natural Bridge Zoo was different because it was “the government coming to someone’s home and business and searching, so the exclusionary rule does apply.”
Cook’s final argument for overturning the jury verdicts was that the trial court had erred when excluding Gretchen Mogensen, Karl Mogensen’s daughter, from testifying at trial due to her name being inadvertently left off of the witness list. Cook argued that allowing her to testify would not have been prejudicial and that the state had excluded her from the courtroom in anticipation of her potentially being called to testify.
Judge Raphael noted that there had been no order in the case explicitly stating that any witnesses not on the list wouldn’t be allowed to testify, so that it was up to the judge to determine if the testimony would be prejudicial.
“If you lined up a hundred trial judges and presented these facts to them, at least 50, if not more, would say, ‘Tough. If you’re not on the list, you’re out,’” he said. “How can we say what happened here is an abuse of discretion?”
Meredith Baker, who argued on behalf of the state, refuted all of Cook’s arguments.
Section 3.2-6569 does apply to this case, she argued, and it doesn’t matter if the Mogensens are exhibitors or owners, because the only requirement of the statute is that the animals in question are being subject to “inadequate care.” The purpose of the statute, she said, was to get the animal out of the situation.
She also cited the care of the animal as the reason that the exclusionary rule does not apply in this case, noting that the statute “contemplates situations were animals return to the owner.”
“So if … the government comes and takes your animals without following processes, you can’t do anything about it until you go before the court for trial in the matter?” Judge Lorish asked.
Baker responded by reiterating that the point of the code section “is to relieve and not punish.”
Lorish then asked about the evidence listed for seizing a dog, which was “the weakest evidence” of the evidence presented for the animals seized. The evidence for inadequate care for the dog that was presented was that the shelter it had was inadequate for the cold weather and did not have a dog house, the dog was thin and there was some chicken wire sticking out of the enclosure that could have caused injury.
“So if you live on a farm and you have a thin dog with no dog house and chicken wire, could the state seize a family pet?” Lorish asked.
“In this case, that was sufficient,” Baker replied.
On the issue of Gretchen Mogensen being excluded from the witness list, Baker noted that courts have “a lot of discretion” in ruling on these issues. Judge Raphael asked if a judge could not allow someone to testify without considering the prejudice to the larger case, or if the exclusion of a witness would be prejudicial in itself. Baker said that the judge could rule that way.
No ruling on the appeal had been made as of Tuesday.
