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Attorneys for both the state and Natural Bridge Zoo are preparing for a trial, scheduled for Feb. 26, which will rule on the zoo owners Karl and Debbie Mogensen’s appeal of the General District Court’s ruling last month.
Executing a search warrant on Dec. 6 and 7, the state Attorney General’s Office, assisted by state police, seized 95 animals from Natural Bridge Zoo, along with a number of records, medications, and animal parts.
On Jan. 19, following a two-and-a-half-day hearing in Rockbridge General District Court, Judge Gregory Mooney released a decision stating that 61 of the animals seized in December would remain in state custody, while 49 would be returned to the zoo.
Attorneys for the Mogensens submitted a notice of their intent to appeal this ruling on Jan. 22, and a hearing was held Feb. 1 in Circuit Court to schedule the appeal trial.
A Feb. 6 deadline was also set for attorneys to file any motions in the case, which will be ruled on at a pre-trial hearing on this morning. -Five motions were submitted on behalf of the zoo, and none on behalf of the government.
Among the motions submitted by Erin Harrigan, attorney for the Mogensens, is a “demurrer.” According to the filing, “While a demurrer admits the truth of the facts alleged in the pleading, it does not admit the correctness of the pleading’s conclusions of the law.”
The motion argues that the allegations brought against the Mogensens do not meet the legal requirements for specificity.
“A petition must be dismissed if it fails to set forth the material facts necessary to sustain its claims,” Harrigan writes. “The county’s petition does not include any particularized claims as to each animal that could properly form the basis for a seizure.”
The complaint about lack of information is raised again in another motion, also filed by Harrigan, which asks the court to order “A bill of particulars or, in the alternative, compel production of discovery.”
In this motion, Harrigan explains that, “The purpose of the bill of particulars is to ‘state sufficient facts regarding the crime to inform an accused in advance of the offense for which he is to be tried’”, a requirement for criminal cases.
“Without any information from the county as to the alleged violations, respondents would be required to perform an insurmountable amount of guesswork for each of the 100 animals to attempt to prepare for trial,” Harrigan writes.
If not granted the bill of particulars, Harrigan is moving the court to compel discovery, or demand records from the government.
Discovery was also argued in the first hearing, with the zoo’s attorney arguing that documents were not copied and sent, while Welch said she made the documents at her offices available for the opposing counsel to examine themselves.
In the motion filed Feb. 6, Harrigan acknowledges that this is a preemptive action, as the government has not denied zoo attorneys’ current request for discovery.
“While the County has not given any indication that the requested discovery materials will be withheld, and their time to provide materials has not expired, respondents preemptively submit this motion,” she writes.
Meanwhile, attorneys for the zoo are trying to suppress the warrants that permitted the Dec. 6 search of the zoo, which also contain records of the animals and objects seized on Dec. 6 and 7.
This motion claims, as its justification, that the warrants, filed in Powhatan County, “Contained several material deficiencies and omissions that erode all probable cause.”
It goes on to argue that Sgt. Christine Boczar, who works in animal control with the Powhantan Sherriff’s Office, is biased, and takes issue with the fact that the state did not consider the U.S. Department of Agriculture’s inspections.
In addition to the request for suppression, the motion argues that “Respondents are entitled to an evidentiary hearing to establish the extent of the unconstitutional conduct of government actions, to further develop their motion to suppress, and to move this court for appropriate relief.”
Another motion would bring all seized animals back into the state of Virginia, on the grounds that a ruling made in a Virginia court will not apply to animals not physically within the Commonwealth.
According to the motion, as well feed and care receipts submitted to the court, some animals seized from the zoo are currently being kept in Ohio, Colorado and Florida, and others in Baltimore Maryland and Chesapeake, Virginia.
Following the notice of appeal submitted by the Mogensen attorneys on Jan. 22, a Jan. 23 notice of appeal was filed, listing Michelle Welch, head of the Animal Law Unit with the Attorney General’s Office, as the prosecuting attorney.
If allowed, that appeal would have brought the 39 animals ordered returned in the earlier decision back into consideration in the appeal case.
However, the appeal itself was not filed by the court’s Feb. 6 deadline, nor was a motion to delay the trial, which Welch, in the Feb. 1 hearing, had indicated she would submit.
Currently, a jury trial is scheduled to take place in Rockbridge Circuit Court beginning Feb. 26, that is anticipated to last four days.
