Gina Turcotte V Humane Society Waterville Area - Appellant's Appeal Brief

MAINE SUPREME JUDICIAL COURT
SITTING AS THE LAW COURT

KEN-14-52

GINA TURCOTTE

APPELLANT

v.

HUMANE SOCIETY WATERVILLE AREA

APPELLEE

APPELLATE BRIEF FOR APPELLANT

Gina Turcotte
APPELLANT
32 Court St Apt 1
Augusta, Maine

i
Table of Contents

TABLE OF AUTHORITIES ................................................................................ ii
STATEMENT OF FACTS AND PROCEDURAL HISTORY ................................... 1
ISSUE PRESENTED FOR REVIEW .................................................................. 5
1. WHETHER SUPERIOR COURT COMMITTED A PATENT ERROR OF
LAW WHEN IT GRANTED APPELLEE'S 12(b)(6) MOTION TO DISMISS
FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE
GRANTED.

SUMMARY OF ARGUMENT ............................................................................. 5
STANDARD OF REVIEW ................................................................................. 6
ARGUMENT .................................................................................................. 11
1. SUPERIOR COURT COMMITTED A PATENT ERROR OF LAW WHEN IT
GRANTED APPELLEE'S 12(b)(6) MOTION TO DISMISS FOR FAILURE
TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.

CONCLUSION ............................................................................................... 30
CERTIFICATE OF SERVICE .......................................................................... 33

ii
TABLE OF AUTHORITIES

CASES

Town of Burlington v. Hosp. Admin. Dist., 769 A. 2d 857 (2001)
Champagne v. Humane Society, 737 P. 2d 1279 (1987)
Carrier v. Secretary of State, 60 A. 3d 1241 (2012)
Daskalea v. Washington Humane Society, 480 F. Supp. 2d 16 (2007)
Richardson v. Winthrop School Department, 983 A.2d 400 (2009)
Connecticut Humane Society V. Freedom Of Information Commission Et Al.
218 Conn. 757 (1991)
Clarke v. TCAC & CONTROL SHELTER, 181 P. 3d 881 (2008)
Dow v. Caribou Chamber of Commerce and Industry, 2005 ME 113 (2005)

STATUTES

1 MRSA 400 et seq.

7 MRSA 3936(1) Inspection and Quarantine
7 MRSA 3936(2) Suspension of license
APPELLANT'S APPEAL BRIEF Page 1 of 36
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On September 17, 2012, Appellant and her service animal (cat) named
Smokey were unwillingly separated at the Budget Host hotel in Waterville.
On September 18, 2012, Appellant contacted City of Waterville Police
Department Animal Control asking for assistance to retrieve Smokey.
Waterville Police Department referred Appellant to Appellee as a state
agent for the purpose of retrieving, sheltering, and caring for missing animals.
Appellant immediately contacted Appellee and filed a report of a missing
animal indicating several times the animal is a service animal and must be
returned to Appellant immediately.
On September 19, 20 and 21, Appellant contacted Appellee and asked if
Smokey had been surrendered to their care.
Appellee denied possession of Smokey during those calls but affirmed
they had taken a missing animal report and would contact Appellant as soon
as Smokey was surrendered to their care.
Appellant posted public notices in the local area and on the internet.
Appellant gave Appellee access to public notices posted by Appellant on
the internet which had photographs of Smokey attached, all the while stressing
Appellant's need for an immediate reunion to receive Smokey's therapeutic
benefits.
On September 22, 2012, Appellant signed up to get notifications about
the humane society's Facebook postings with hopes Appellee would post notice
of Smokey when he was brought into their facility.
Smokey remained in the 1-mile area for 55 days from where he had last
contact with Appellant until he was surrendered to Appellee by a local resident.
On November 11 or 12, 2012, Linda Andrews, who lives within one mile
of the Budget Host hotel, found and surrendered Smokey to Appellee.
Appellee never initiated any contact with Appellant for any reason.
On January 4, 2013, at 4:38pm, Appellee placed a photograph of Smokey
(renamed "Shamoo") on their Facebook website indicating "Shamoo has been
adopted."
That same day, only three (3) hours later at 7:48pm, Appellant saw the
photograph of Smokey and posted a comment below the photograph claiming
ownership and demanding answers about his location.
On January 5, 2013, at 9am, Appellant telephoned Appellee demanding
answers about Smokey's whereabouts, health, welfare and an explanation why
Appellee failed to make a record of Appellant's report or contact Appellant when
Smokey was surrendered to their care.
On January 5, 2013 at 10am when Appellant received a return call by
Director Andrea Pasco, Appellant was told by Andrea Pasco that Appellant was
not going to get Smokey back because Andrea Pasco knows the stray cat law
and Appellant does not.
From January through August 2013, Appellant attempted various legal
strategies to gain access to public records documenting the treatment of stray
animals, as required by law.
Appellee has passionately opposed all of Appellant's requests for access.
On August 20, 2013, Appellant sent a FOAA request to Appellee, seeking
the name, address and phone number of the adopting party, in addition to all
intake records, photographs, and medical records for the following animal:
INTAKE DATE: November 12, 2012
SURRENDERED BY: LINDA ANDREWS, 26 LOUISE AVE, APT 6,
WATERVILLE
HSWA GIVEN NAME: SHAMOO
TYPE OF ANIMAL: Male Cat, Neutered
COLOR: Gold eyes, Grey/White med/long hair, white bib,
paws, legs
ADOPTED ON/ABOUT: January 4, 2013.
PHOTO:

In violation of 1 MRSA 408-A, Appellee has never "acknowledge[d]
receipt of a request made according to this section within 5 working days of
receiving the request" and never "provide[d] written notice of the denial, stating
the reason for the denial, within 5 working days of the receipt of the request".
On September 18, 2013 Appellant filed a complaint in superior court
because Appellant received no substantive responses from Appellee.
On December 2, 2013, service of process was completed to new Director
Kathleen Ross
1
in hand by Allen Wood of the Kennebec County Sheriff's Office.
On December 11, 2013, proof of service and the original Summons were
filed by Appellant.
On December 13, 2013, Appellee subsequently filed a 12(b)(6) Motion to
Dismiss making false claims that Appellee is not a public organization.
On December 30, 2013, Appellant filed a Memorandum In Opposition To
Respondent's Motion To Dismiss For Failure To State A Claim Upon Which
Relief Can Be Granted With Supporting Exhibits And Incorporated
Memorandum Of Law with nine exhibits which serve as prima facie evidence of
Appellee's false statements and which fully support Appellant's claims that
Appellee is a public organization and state agent as defined by law.
On January 20, 2014, J. Murphy dismissed Appellant's Complaint, with
prejudice, stating, "The Humane Society, Waterville Area is not subject to 1
MRSA 400 et seq."
On January 29, 2014, Appellant filed a Notice of Appeal.

1
Kathleen Ross replaced Andrea Pasco as Director in mid-2013 when Andrea Pasco was publicly fired almost
immediately after Appellant filed a lawsuit against Appellee, as well as against Andrea Pasco individually and in her
official capacity as the Director when Smokey was reported missing and then subsequently surrendered. Appellant
contacted Kathleen Ross within Ms. Ross's first 72 hours as Director asking for immediate access to public records
about Smokey's care and current whereabouts, which were refused. Kathleen Ross has since rejected all calls from
Appellant.
ISSUE PRESENTED FOR REVIEW
1. WHETHER SUPERIOR COURT COMMITTED A PATENT ERROR OF
LAW WHEN IT GRANTED APPELLEE'S 12(b)(6) MOTION TO DISMISS
FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE
GRANTED.

SUMMARY OF ARGUMENT

Appellant's Complaint for Injunctive Relief restated an unrebutted
statement made by Appellee's counsel, Bryan B. Ward, Esq., for the record on
June 26, 2013 during a recorded public hearing for AUGDC-SA-2013-237, to
wit, ...if the court was to order the humane society to release the names [of
John/Jane Doe] we have no choice. Its not privileged under the law.
[emphasis added]
Appellant attached several pieces of photographic evidence to the original
Complaint showing beyond any doubt the cat Appellee named "Shamoo" which
was sold to John/Jane Doe is in fact "Smokey", the same cat Appellant has
cared for since 2008 which is the subject of her FOAA request and this appeal.
There are nine exhibits with Appellant's Memorandum In Opposition To
Appellee's 12(b)(6) Motion To Dismiss which substantiate all of Appellant's
allegations proving her claim that Appellee is a public organization and state
agent subject to the Freedom of Access Act.
Appellee's 12(b)(6) Motion to Dismiss dated December 13, 2013 states on
page 4, "...HSWA - being a private corporation - is not subject to the disclosure
provisions of the Maine Freedom of Access Act. It is not a public entity, does not
participate in public proceedings, and does not create or retain public records
within the meaning of the Freedom of Access Act."
Appellee's statement that it "does not participate in public proceedings,
and does not create or retain public records within the meaning of the Freedom of
Access Act" fails to satisfy the four-factor test, specifically, "(1) whether the
entity is performing a governmental function; (2) whether the funding of the entity
is governmental; (3) the extent of governmental involvement or control; and (4)
whether the entity was created by private or legislative action."
STANDARD OF REVIEW
"We review issues of statutory and constitutional interpretation de novo.
Id. We first look to the plain meaning of the statute, interpreting its language
"to avoid absurd, illogical or inconsistent results," Estate of Joyce v. Commercial
Welding Co., 2012 ME 62, 12, 55 A.3d 411 (quotation marks omitted), and
attempting to give all of its words meaning, Cobb v. Bd. of Counseling Prof'ls
Licensure, 2006 ME 48, 11, 896 A.2d 271. When a statute is unambiguous,
we interpret the statute directly, without applying the rule of statutory
construction that "prefers interpretations...that do not raise constitutional
problems," McGee, 2006 ME 50, 18, 896 A.2d 933, and without examining
legislative history, Ashe v. Enterprise Rent-A-Car, 2003 ME 147, 7, 838 A.2d
1157, or the agency's interpretation, Cobb, 2006 ME 48, 13, 896 A.2d 271.
"We look to legislative history and other extraneous aids in interpretation of a
statute only when we have determined that the statute is ambiguous." Liberty
Ins. Underwriters, Inc. v. Estate of Faulkner, 2008 ME 149, 15, 957 A.2d 94.
"A statute is ambiguous if it is reasonably susceptible to different
interpretations." Estate of Joyce, 2012 ME 62, 12, 55 A.3d 411." Carrier v.
Secretary of State, 60 A. 3d 1241 (2012)
When adjudicating a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), the Court must view all the allegations
and facts in the complaint in the light most favorable to the plaintiffs, and it must
grant the plaintiffs the benefit of all inferences that can be derived from those
facts." Lindsey v. United States, 448 F.Supp.2d 37, 44 (D.D.C.2006) (citing Barr.
v. Clinton, 361 U.S.App. D.C. 472, 475, 370 F.3d 1196, 1199 (D.C.Cir.2004)).
"The court is limited to considering facts alleged in the complaint, any documents
attached to or incorporated in the complaint, matters of which the court may take
judicial notice, and matters of public record." Johnson v. Long Beach Mortg. Loan
Trust 2001-4, 451 F.Supp.2d 16, 27 (D.D.C.2006) (citing EEOC v. St. Francis
Xavier Parochial Sch., 326 U.S.App. D.C. 67, 70, 117 F.3d 621, 624
(D.C.Cir.1997)) (other citation omitted). "[A] complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the plaintiff[s] can
prove no set of facts in support of [their] claim which would entitle [them] to relief."
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)
(footnote omitted). "The complaint need only set forth a short and plain statement
of the claim, giving the defendant fair notice of the claim and the grounds upon
which it rests." Runkle v. Gonzales, 391 F.Supp.2d 210, 220 (D.D.C.2005)
(citations omitted).
An examination of the explicit powers and functions bestowed by the
Government upon the Washington Humane Society demonstrates that the
Humane Society must be considered a government actor. See San Francisco Arts
& Ath. v. United States Olympic Comm., 483 U.S. 522, 548, 107 S.Ct. 2971,
2987, 97 L.Ed.2d 427 (1987) (Brennan, J., dissenting). As Plaintiffs allege in the
amended complaint, the "Washington Humane Society, and the individually
named agents and officers thereof, perform traditional, core, police, prosecutorial,
and judicial functions." First Am. Compl. at 29. This includes the specific
statutory authority to "prosecute all violations of the [District's] animal cruelty
laws," id. at 29(a) (citing D.C.Code 22-1006), "to appear before magistrates to
swear out warrants for the searches of private homes," id. at 29(b) (citing
D.C.Code 22-1005), and to collect "fines and forfeitures imposed by judges of
the Superior Court," id. at 29(c) (citing D.C.Code 22-1006). These statutory
grants of power are in addition to the Humane Society's authority to seize "any
animal to protect it from neglect or cruelty." D.C.Code 22-1004(b)(1) (2003
Suppl.). The Court therefore agrees with Plaintiffs that the Humane Society
performs "traditional, government functions, which constitute `state action.'" Plts.'
Opp'n. at 15. As "[t]he [Supreme] Court has repeatedly held . . . `when private
individuals or groups are endowed by the State with powers or functions
governmental in nature, they become agencies or instrumentalities of the State
and subject to its constitutional limitations.'" San Francisco Arts & Ath., 483 U.S.
at 549, 107 S.Ct. at 2987- 88 (quoting Evans v. Newton, 382 U.S. 296, 299, 86
S.Ct. 486, 488, 15 L.Ed.2d 373 (1966)) (other citations omitted).
The notion that a local humane society performs a traditional,
governmental function law enforcement has been recognized in other
jurisdictions. For example, in Brunette v. Humane Society of Ventura County, the
Ninth Circuit recognized that the "Humane Society and its officers are state actors
for the purposes of 1983." 294 F.3d 1205, 1208 (9th Cir.2002).
In reaching this conclusion, that court noted that the "Humane Society was
created by special California statute, and [that] it engages in a quasi-public
function." Id. at 1208. Much like the Washington Humane Society employees here,
the humane society employees in Brunette were "invested with authority to
investigate reports of animal cruelty, impound animals, place liens on property,
and bring criminal charges against citizens." Id. See also Tennessee v. Adkisson,
2001 WL 1218570, *3-5, 2001 Tenn.Crim.App. LEXIS 832, *8-15
(Tenn.Crim.App.2001) (concluding humane society officers searching private
property qualify as "`state actors' . . . subject to constitutional limitations"); Studer
v. Seneca County Humane Soc'y, 2000 WL 566738, *3, 2000 Ohio App. LEXIS
1974, *8-9 (Ohio Ct.App.2000) (concluding the "primary purpose" of local humane
societies "is law enforcement, an activity traditionally reserved for the
government"); Putnam County Humane Soc'y, Inc. v. Woodward, 740 So.2d 1238,
1240 (Fla.Dist.Ct.App.1999) (holding Public Records Act was applicable to
humane society "as an agent of the state" because "the Society ha[d] used its
statutory authority to investigate acts of animal abuse and . . . to seize
animals").[14]
The District of Columbia has given the Humane Society the authority to
prosecute violations of its animal cruelty law, see D.C.Code 22-1006, obtain
warrants, see D.C.Code 22-1005, search private residences, see id., seize
personal property, see D.C.Code 22-1004, and collect fines, see D.C.Code 44-
1506.[15] This type of conduct is akin to a State's law enforcement power, which
"`may be fairly treated as that of the State itself.'" Williams, 364 U.S.App. D.C. at
384, 396 F.3d at 414 (quoting Brentwood Acad., supra). For this reason, the
Court concludes that the Washington Humane Society performs a distinctive,
traditional governmental function and that its employees were acting "under color
of state law" for purposes of 42 U.S.C. 1983. See Donnelly v. Zekan, 2000 WL
762811, *6, 2000 Ohio App. LEXIS 2509, *19-20 (Ohio Ct.App.2000) ("[T]his Court
concludes that when the Humane Society and its representatives detained
[Plaintiff], searched his home and seized his horses, they were acting under color
of law."). Plaintiffs' constitutional claims resting on 42 U.S.C. 1983, as they
relate to the Washington Humane Society Defendants and Defendants Scnoor
and Boozer, survive dismissal.
The Humane Society has been given near total authority to enforce the
District of Columbia's animal protection law. This includes the unfettered
discretion to seize any animal that a Humane Society employee considers to be
neglected. See Anderson v. George, 160 W.Va. 76, 79, 233 S.E.2d 407
(W.Va.1977) (concluding that "the line between acceptable and cruel treatment
must be judicially determined in an expeditious manner," and not simply left to a
"humane officer, who is a law enforcement officer, not an independent magistrate
or judicial officer, [and who] determines in his sole and unfettered discretion that
the animals are `abandoned, neglected, or cruelly treated'"); Jenks v. Stump, 41
Colo. 281, 288, 93 P. 17 (Colo.1907) ("[W]e find the statute seeks to clothe the
Humane Society and its agents with extraordinary powers. By its terms the agent
is the sole judge of whether an animal is neglected, abandoned or ill treated, and
whether it has sufficient food, nourishment and shelter. The truth respecting the
matter cannot avail, because the agent is clothed with power to take possession
of the animals regardless of their condition."). The Humane Society may seize an
animal without obtaining a warrant first. Nor is it required to conduct a hearing
before seizing an animal. Fuentes v. Shevin, 407 U.S. 67, 81, 92 S.Ct. 1983,
1994, 32 L.Ed.2d 556 (1972) ("If the right to notice and a hearing is to serve its
full purpose, then, it is clear that it must be granted at a time when the
deprivation can still be prevented."). That the seizure of the animal may be
temporary does not "alter the need for due process," Carrera v. Bertaini, 63
Cal.App.3d 721, 726, 134 *35 Cal.Rptr. 14 (Cal.Ct.App.1976), for "it is now well
settled that a temporary non-final deprivation of property is nonetheless a
`deprivation' in terms of the Fourteenth Amendment," Fuentes, 407 U.S. at 84-85,
92 S.Ct. at 1996 (citing Sniadach, 395 U.S. at 342, 89 S.Ct. at 1823; Bell v.
Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971)).
In short, "the potential for abuse on the part of the . . . humane society is
tremendous." Gonzalez, 403 Pa.Super. at 173, 588 A.2d 528.
Daskalea v. Washington Humane Society, 480 F. Supp. 2d 16 (2007)
ARGUMENT
1. SUPERIOR COURT COMMITTED A PATENT ERROR OF LAW WHEN IT
GRANTED APPELLEE'S 12(b)(6) MOTION TO DISMISS FOR FAILURE
TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.

The standard of review for a motion to dismiss for failure to state a claim
upon which relief can be granted is well settled. The motion must be decided
based solely on the allegations in the Appellant's complaint. See Fed.R.Civ.P.
12(d). The court does not decide disputed issues of fact; instead, it must
assume that all material facts in the Appellant's complaint are true. Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007). Not only must the
court accept the Appellant's allegations as true, but it also must accept as true
all reasonable factual inferences drawn from Appellant's allegations. See Kowal
v. MCI Comm'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir 1994); Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1970).
Appellee states in the 12(b)(6) Motion to Dismiss, pg 1 2, "A complaint is
properly dismissed for failure to state a claim upon which relief can be granted
when it is beyond doubt that the plaintiff is entitled to no relief under any set of
facts that might be proven in support of the claim." Richardson v. Winthrop
School Department, 983 A.2d 400 (Me. 2009). Appellee further states, on pg 4
2, "the court has no authority under the Freedom of Access Act to compel a
private corporation to divulge private information, confidential records, or trade
secrets", but these are not the true facts of this instant case.
Appellant's Complaint, pg 2 line 14, indisputably states, "HUMANE
SOCIETY WATERVILLE AREA is a privately-owned, public benefit, non-profit
agency supported by 95% public donations for the purpose of sheltering,
reuniting and re-homing lost and abandoned animals."
Appellant's Complaint, pg 3 1, further reveals the unrebutted pivotal
fact that Appellee's counsel, Bryan B. Ward, Esq., testified on the record on
June 26, 2013 during a hearing for AUGDC-SA-2013-237, we're going to
respond to that discovery request by claiming privilege andimmunity
[but] if the court was to order the humane society to release the
names [of John/Jane Doe] we have no choice. Its not privileged under the
lawbut we would object under our internal policies.
HSWA correctly indicates they " have] no choice. It's not privileged
under the law."
Appellee's empty desperate objection under their internal policies is not
sufficient legal grounds for dismissal under Rule 12(b)(6).
Evidently the superior court did not review or consider any of Appellant's
pertinent facts within or the many exhibits attached to her pleadings proving
Appellee is in fact a public organization which Appellee themselves constantly
affirm on their yearly government mandated public IRS-990 Form, Public
Charity Status and Public Support, indicating HSWA "is not a private
foundation because it is...An organization which receives a substantial
part of its support from a governmental unit or the general public
described in section 170(b)(1)(A)(vi)".
Appellee consistently reports "the organization qualifies as a publicly
supported organization" because it receives 33 1/3 % or more of its support
from a government unit or the general public.
Additionally, the record shows unchallenged proof of Appellee's state-
sanctioned authority by way of written contract with political and municipal
subdivisions to engage in state-sanctioned activities, namely statutorily-
required police enforcement of animal welfare laws, seizure, control and care of
special private property for private corporate commercial purposes while never
affording the public any due process of law, inter alia,
"Because law enforcement is traditionally a function of the government, the
society performs a governmental function to the extent that it engages in the law
enforcement activities authorized by statute. See General Statutes 29-108b
and 29-108c. Because legislation designed to protect animals from cruelty and
neglect is recognized as a valid exercise of the police power; 4 Am. Jur. 2d,
Animals 27; arguably, the society also performs a governmental function
insofar as it engages in the statutorily authorized activities involving the
detention, shelter and euthanasia of animals. See General Statutes 29-108e,
29-108g. ... Moreover, the state still plays a predominant role in preventing the
cruel and inhuman treatment of animals. See, e.g., General Statutes 22-272a
(approved methods of slaughter), 22-329 (prevention of cruelty to dogs and
other animals), 22-332a (restrictions on use of dogs for medical research), 22-
336 (maintenance of dog pounds), 22-342 (b) (inspection of kennels), 22-415
(prevention of cruel and inhuman treatment of equines).
Local police, dog wardens and the department of agriculture routinely use
the society to investigate complaints of animal abuse and neglect. The society
issues warnings and refers continuing instances of animal cruelty and neglect to
the office of the state's attorney. The office of the state's attorney and the police
rely upon the society to hold detained animals and to provide expertise upon
request." Connecticut Humane Society V. Freedom Of Information Commission Et
Al. 218 Conn. 757 (1991)
Appellee is obviously lying to either the court or the IRS about their legal
status.
Appellee deserves sanctions for lying in sworn legal proceedings.
Additionally, superior court behaved with extreme bias when it sustained
Appellee's frivolous, contradictory and unsupported claim that "...HSWA - being
a private corporation - is not subject to the disclosure provisions of the Maine
Freedom of Access Act. It is not a public entity, does not participate in public
proceedings, and does not create or retain public records within the meaning of
the Freedom of Access Act."
Superior court clearly did not apply the "four-factor 'functional equivalent
balancing test to determine if an entity is to be regarded as a public agency for
purposes of the PDA: (1) whether the entity performs a governmental function; (2)
the level of government funding; (3) the extent of government involvement or
regulation; and (4) whether the entity was created by the government. Id. at 162,
974 P.2d 886. Under Telford, each of these criteria need not be equally satisfied,
but rather the criteria on balance should suggest that the entity in question is the
functional equivalent of a state or local agency." as cited in Appellant's
Memorandum in Opposition, pg 5 line 4.
Clarke v. TCAC & CONTROL SHELTER, 181 P. 3d 881 (2008) further
states,
"In Spokane Research, this Division saw no need to apply Telford's four-
factor test because there was "no ambiguity as to the Association's
nongovernmental status," and thus it was not subject to the PDA. Spokane
Research, 133 Wash.App. at 608, 137 P.3d 120. But here, TCAC is not so
obviously beyond the reach of the PDA.[4] Thus, we engage in a Telford analysis
to determine whether TCAC is an "other local agency" subject to the PDA. Under
Telford, we conclude that TCAC is the functional equivalent of a public agency.
Function. TCAC's purpose is to perform animal control services for the tri-
cities area...It recognizes the authority of cities and counties to pass local
ordinances regulating the care and control of animals... In turn, the statute
acknowledges that cities and counties may contract with animal care and control
agencies to perform these duties... An entity becomes an animal care and control
agency when it is "authorized to enforce city or county municipal ordinances
regulating the care, control, licensing, or treatment of animals within the city or
county," or when it contracts with the city or county as a humane society to
provide those services... In any event, an animal care and control agency "may
enforce the provisions of [chapter 16.52 RCW] only if the county or city legislative
authority has entered into a contract with the agency to enforce [those
provisions]." Former RCW 16.52.015(1) (emphasis added).
TCAC is authorized by the local government to provide animal control
services. Under former RCW 16.52.011(2)(b), it is therefore an animal care and
control agency. Individuals associated with TCAC take oaths as animal control
officers; animal control officers can only be employed by an animal care and
control agency. See former RCW 16.52.011(2)(c). As part of the oath, the
employees of TCAC agree to enforce the area's animal control regulations. As
regulators, TCAC and its officers execute police powers in carrying out their
duties, most notably impounding and destroying private citizens' pets. These
types of acts implicate due process concerns. See, e.g., former RCW 16.52.085
(discussing situations in which an animal control officer does or does not need a
warrant to remove an animal from private property). The implication of police
powers is clear from the language of former RCW 16.52.015(2), which requires
animal control officers to comply with "the same constitutional and statutory
restrictions concerning the execution of police powers imposed on law
enforcement officers who enforce this chapter." Because a local government
grants TCAC the ability to execute police powers pursuant to state statute, TCAC
is performing a governmental function. Cf. Champagne v. Spokane Humane Soc'y,
47 Wn. App. 887, 891, 737 P.2d 1279, review denied, 108 Wn.2d 1035 (1987)
(humane society acting as a public entity for the purpose of the public duty
doctrine when City of Spokane contracted with it and delegated it the authority to
enforce the animal regulations); Brunette v. Humane Soc'y, 294 F.3d 1205, 1208
(9th Cir. 2002) (noting that a humane society created by statute and holding
police powers was a state actor for the purposes of 42 U.S.C. 1983 litigation),
cert. denied, 537 U.S. 1112 (2003).
But while TCAC is performing a governmental function, Telford's analysis
seems to hinge on whether the entity's duties can be delegated to the private
sector. Telford, 95 Wn. App. at 165. Although the function here was assigned to
the private sector, such delegation may only occur via a contractual relationship
between the city and the animal control agency. Former RCW 16.52.015(1).
Hence, the nature of the delegation merely allows TCAC to step into the shoes of
the local government.[6] In short, while the local government can delegate the
performance authority for this public function to a private entity, it cannot
delegate away its statutory responsibility to perform within PDA legal
requirements. TCAC's performance depends on its contract with the cities
involved. Former RCW 16.52.015(1). Thus, TCAC is performing a governmental
function that can never be wholly delegated to the private sector. Said another
way, were we to conclude that TCAC is not a functional equivalent of a public
agency, we would be setting a precedent that would allow governmental agencies
to contravene the intent of the PDA and the Public Records Act by contracting with
private entities to perform core government functions. All told, this factor balances
in favor of finding that TCAC is the functional equivalent of a public agency.
Government Funding. Nearly all of TCAC's operating budget comes from
public money. TCAC occupies space in a building rent-free, subsidized by the
local government with which it contracts, and it is forbidden by the terms of that
contract from engaging in any business on that premises other than its animal
control services. Thus, this factor clearly weighs in favor of application of the PDA.
Government Control. TCAC is in control of its day-to-day operations, and
maintains its own insurance. Its employees are not considered public employees
and receive no benefits from the local government. However, as noted above,
there are some government restrictions on how the government facilities can be
used. In addition, TCAC is only permitted to provide euthanasia services in a
manner approved by ACA. TCAC is also required to keep records and submit
monthly reports to ACA. Thus, there is a notable degree of governmental control
here and this factor weighs in favor of finding that TCAC is the functional
equivalent of a public agency.
Origin. TCAC was formed as a private corporation, by private citizens, and
is not an entity created by the government. Although it could not perform its
function without its relationship to the local government, this factor weighs
against PDA application.
Balancing. Construing the PDA liberally in favor of the fullest possible
public records access, we balance these aforementioned factors. On balance, we
conclude TCAC is the functional equivalent of a public agency. While TCAC has
some non-public functions and characteristics, the fact that it performs a
governmental function dependent upon its relationship with the local government,
receives the bulk of its funding from taxpayer money to perform that function, and
is subject to regular government oversight, all tip the scale in favor of finding that
TCAC is the functional equivalent of a public agency."
Appellee's authority and activities are perfectly aligned with the Telford
analysis, as follows:
Function: HSWA's "purpose is to perform animal control services for
[twenty-nine municipalities]...It recognizes the authority of cities and
counties to pass local ordinances regulating the care and control of
animals... [HSWA] is authorized by the local government to provide
animal control services... [HSWA] and its officers execute police
powers in carrying out their duties, most notably impounding and
destroying private citizens' pets. These types of acts implicate due
process concerns... Because a local government grants [HSWA] the
ability to execute police powers pursuant to state statute, [HSWA] is
performing a governmental function... Although the function here
was assigned to the private sector, such delegation may only occur
via a contractual relationship between the city and the animal
control agency... Hence, the nature of the delegation merely allows
[HSWA] to step into the shoes of the local government. In short, while
the local government can delegate the performance authority for this
public function to a private entity, it cannot delegate away its
statutory responsibility to perform within PDA legal requirements.
[HSWA]'s performance depends on its contract with the cities
involved...Thus, [HSWA] is performing a governmental function that
can never be wholly delegated to the private sector."
Government Funding: "Nearly all of [HSWA]'s operating budget comes
from public money."
Government Control: "[HSWA] is only permitted to provide euthanasia
services in a manner approved by [Dept. of Agriculture, Div. of
Animal Welfare, and in accordance with MRSA]. [HSWA] is also
required to keep records and submit monthly reports to [Dept. of
Agriculture, Div. of Animal Welfare, and in accordance with MRSA].
Thus, there is a notable degree of governmental control here and this
factor weighs in favor of finding that [HSWA] is the functional
equivalent of a public agency."
Origin: "[HSWA] was formed as a private corporation, by private
citizens, and is not an entity created by the government. Although it
could not perform its function without its relationship to the local
government, this factor weighs against PDA application."
Balancing: "Construing the PDA liberally in favor of the fullest possible
public records access, [this court must] balance these
aforementioned factors. On balance, [this court must] conclude
[HSWA] is the functional equivalent of a public agency. While
[HSWA]has some non-public functions and characteristics, the fact
that it performs a governmental function dependent upon its
relationship with the local government, receives the bulk of its
funding from taxpayer money to perform that function, and is
subject to regular government oversight, all tip the scale in favor of
finding that [HSWA]is the functional equivalent of a public agency."
Appellee's activities are regulated by legislature and government entities,
as partially indicated in Appellant's Memorandum in Opposition, pg 3 line 22,
7 MRSA 3936(1) Inspection and Quarantine establishes mandatory
control over Respondent's action, to wit, " The commissioner, a state humane
agent, a veterinarian employed by the State or a licensed veterinarian at the
direction of the commissioner may, at any reasonable time, enter an animal
shelter...and make examinations and conduct any recognized tests for the
existence of contagious or infectious diseases or conditions... The commissioner
may inspect animal shelters... in accordance with the sanitation and health rules
established by the department and for compliance with laws and rules, including
licensing and permitting requirements, of the Department of Inland Fisheries and
Wildlife pertaining to wildlife importation and possession. In conducting
inspections, measures established by the department through rulemaking must
be used to prevent the spread of infectious and contagious diseases. Rules
adopted pursuant to this subsection are major substantive rules as defined in
Title 5, chapter 375, subchapter 2-A..." and "are subject to an increased level of
rule-making requirements." under 5 MRSA 8072. Legislative review of major
substantive rules.
7 MRSA 3936(2) Suspension of license indicates "The department
may, in accordance with Title 5, chapter 375, subchapter 5, revoke or suspend
a[n] animal shelter ... license if a person maintaining the ...animal shelter ...
violates any quarantine or maintains animals contrary to the rules adopted by
the department, fails to keep records required by the department or violates any
provision of the laws or rules of the Department of Inland Fisheries and Wildlife
pertaining to wildlife importation and possession."
Additionally, as proven by the contract between Appellee and City of
Waterville, and evidenced in the record, "HSWA signed a contract with
Town/City of Waterville, signed by the Municipal Town Officer and HSWA's
Executive Director, stating, in part,
"THIS AGREEMENT, entered into on July 1,2013 by and between the
Town/City (hereafter called town) of Waterville, Maine and the Humane Society-
Waterville Area (hereafter called Shelter) is in effect from July 1, 2013 through
June 30,2014.
By statue, ALL towns are either required to maintain an animal shelter or
otherwise provide such services with regard to stray domestic animals.
The SHELTER is hereby employed and authorized to act as an animal
shelter and is equipped to provide such services in compliance with statutory
requirements. The SHELTER will provide food, water, shelter, medical care,
and/or any other humane treatment for such domestic animals while they are in
possession of the SHELTER.
By statute, Title 7 MRSA, Section 3947,every town shall appoint one or
more Animal Control Officer(s) (hereafter called ACO). The ACO from the City of
Waterville shall transport stray and abandoned domestic animals (which shall
include cats and ferrets) to the SHELTER. Transportation must be carried out in a
humane manner, Title 7 MRSA, Section 3981. et. reg.
The ACO will ensure that sick or injured animals at large receive proper
medical attend and transport said animals directly to a licensed veterinarian.
Veterinary costs incurred for stray animals are the responsibility of the Town
from which the animal is transported unless the owner is found."
Furthermore, this court's decision in Dow v. Caribou Chamber of
Commerce and Industry, 2005 ME 113 (2005) is on point in this case,
"The purpose of FOAA is to open public proceedings and require that public
actions and records be available to the public." Town of Burlington v. Hosp.
Admin. Dist. No. 1, 2001 ME 59, 13, 769 A.2d 857, 861; see also Great N.
Paper, Inc. v. Penobscot Nation, 2001 ME 68, 43, 770 A.2d 574, 587. To
promote such objectives, FOAA must be liberally construed. 1 M.R.S.A. 401
(1989); Town of Burlington, 2001 ME 59, 13, 769 A.2d at 861. Thus, "[t]he
burden of proof is on the agency or political subdivision to establish just and
proper cause for the denial of a FOAA request." Town of Burlington, 2001 ME 59,
13, 769 A.2d at 861.
[10] The provisions of FOAA mandate disclosure with regard to both
public records and public proceedings. 1 M.R.S.A. 401, 403, 408 (1989 &
Supp. 2004). Public records are subject to disclosure pursuant to 1 M.R.S.A.
408, which states that "every person has the right to inspect and copy any public
record during the regular business hours of the agency or official having custody
of the public record within a reasonable period of time after making a request to
inspect or copy the public record." 1 M.R.S.A. 408(1) (Supp. 2004). The statute
defines "public records" as:
The term "public records": means any written, printed or graphic matter or
any mechanical or electronic data compilation from which information can be
obtained . . . that is in the possession or custody of an agency or public official of
this State or any of its political subdivisions . . . and has been received or
prepared for use in connection with the transaction of public or governmental
business or contains information relating to the transaction of public or
governmental business . . . .
1 M.R.S.A. 402(3) (Supp. 2004). Thus, "[t]o determine whether the
requested documents are public records we first look to whether [CCCI] is an
agency or political subdivision." Town of Burlington, 2001 ME 59, 14, 769 A.2d
at 861-62. The trial court based its entry of a summary judgment on its
conclusion that CCCI is a private entity.[1]
[11] Title 1 M.R.S.A. 403 requires that "all public proceedings shall be
open to the public, any person shall be permitted to attend any public proceeding
and any record or minutes of such proceedings that is required by law shall be
made promptly and shall be open to public inspection." 1 M.R.S.A. 403 (1989).
"[P]ublic proceedings" are further defined as "the transactions of any functions
affecting any or all citizens of the State by... [a]ny board, commission, agency or
authority of any county, municipality, school district or any regional or other
political or administrative subdivision." 1 M.R.S.A. 402(2)(C) (Supp. 2004). Thus,
the disclosure of public proceedings information also depends on the public status
of the entity from which the documents are requested.
[12] When evaluating whether an entity qualifies as a public agency or
political subdivision, we have "looked to the function that the entity performs."
Town of Burlington, 2001 ME 59, 16, 769 A.2d at 862-63. In doing so, we
consider four factors: "(1) whether the entity is performing a governmental
function; (2) whether the funding of the entity is governmental; (3) the extent of
governmental involvement or control; and (4) whether the entity was created by
private or legislative action." Id. Although these factors should be "considered and
weighed," an entity need not strictly conform to each of the factors. Id.
[13] In Town of Burlington, for example, we considered whether a
Hospital Administrative District (HAD) qualified as an agency or political
subdivision, and thus whether its records were subject to disclosure pursuant to
FOAA. Id. 2, 769 A.2d at 859. We evaluated the HAD pursuant to the four
factors and concluded that it indeed functioned as a political subdivision because
it provided a governmental health care function; it had the power to tax and issue
bonds, even though tax funds were not being used to finance it at that time; its
management staff was determined by elected citizens of the town; and it was
created as an entity by an act of the Maine Legislature. Id. 17, 769 A.2d at 863;
see also Great N. Paper, Inc., 2001 ME 68, 56, 59, 770 A.2d at 590, 591
(concluding that the Penobscot Tribe qualifies as a municipal agency, and
therefore that its public records are subject to disclosure pursuant to FOAA).
This court, in Town of Burlington v. Hosp. Admin. Dist., 769 A. 2d 857
(2001), has clearly established,
II. APPLICABILITY OF FOAA
[ 12] This case involves the construction of two statutory schemes.
Statutory construction is an issue of law; therefore, we review the Superior
Court's construction of the statutes de novo. Springfield Terminal Ry. Co. v. Dep't
of Transp., 2000 ME 126, 8, 754 A.2d 353, 356.
[ 13] The first statutory scheme at issue is FOAA. FOAA mandates a
liberal construction "to promote its underlying purposes and policies ...." 1
M.R.S.A. 401 (1989). The purpose of FOAA is to open public proceedings and
require that public actions and records be available to the public. Id. The burden
of proof is on the agency or political subdivision to establish just and proper
cause for the denial of a FOAA request. Springfield Terminal, 2000 ME 126, 9,
754 A.2d at 356; see also 1 M.R.S.A. 409(1) (1989).
[ 14] FOAA provides that every person has the right to inspect and copy
any public record. 1 M.R.S.A. 408 (1989). FOAA defines "public record" as: [A]ny
written [or] printed ... matter ... that is in the possession or custody of an agency
or public official of this State or any of its political subdivisions, ... and has been
received or prepared for use in connection with the transaction of public or
governmental business... Id. 402(3) (Supp.2000). To determine whether the
requested documents are public records we first look to whether HAD #1 is an
agency or political subdivision.[7] Because the definitional provisions of FOAA do
not explicitly state that hospital districts come within its coverage, we turn to the
second statutory scheme at issue in the case, the enabling statute for HAD #1, to
glean whether it provides that HAD #1 is an agency or political subdivision.
[ 15] We have recited at length the authority given to HAD #1 in the
enabling legislation. On the basis of the burdens and duties granted to HAD #1
by the Maine Legislature, we conclude that HAD #1 functions as a political
subdivision because it has many of the same characteristics of a political
subdivision. It is a "body politic" and a creature of the Legislature.
We found the term "body politic and corporate" to be significant in
determining that a transit district is a political subdivision for purposes of the
Maine Tort Claims Act. Young v. Greater Portland Transit Dist., 535 A.2d 417,
418 (Me.1987). HAD #1 is charged with carrying out a public purpose, that is,
providing for the health care of the inhabitants of the district. It has the power to
raise revenue through the issuance of bonds and levying taxes. The towns in the
district are responsible for the debts of the district. HAD #1 is governed by a
board of directors elected by the qualified voters of the towns in the district. Upon
dissolution of the district, its assets revert to the towns. The significant powers
and duties granted to HAD #1 by the Legislature are characteristics generally
reserved for political subdivisions.
[ 16] When determining whether an entity is a public agency or body for
purposes of public disclosure laws, other jurisdictions have looked to the function
that the entity performs. See, e.g., Conn. Humane Soc'y v. Freedom of Info.
Comm'n, 218 Conn. 757, 591 A.2d 395, 398 (1991) (holding that humane society
is not equivalent of public agency); Mem'l Hosp.-West Volusia, Inc. v. News-
Journal Corp., 729 So.2d 373, 380 (Fla.1999) (holding hospital system functioned
as public agency);[8] News & Observer Publ'g Co. v. Wake County Hosp. Sys.,
Inc., 55 N.C.App. 1, 284 S.E.2d 542, 549 (1981) (holding expense and other
records of hospital subject to disclosure);[9] Cleveland Newspapers, Inc. v.
Bradley County Mem'l Hosp. Bd. of Dirs., 621 S.W.2d 763, 766
(Tenn.Ct.App.1981) (holding payroll records of hospital created by private
legislation subject to disclosure).[10] Factors which courts generally consider
include: (1) whether the entity is performing a governmental function; (2) whether
the funding of the entity is governmental; (3) the extent of governmental
involvement or control; and (4) whether the entity was created by private or
legislative action. Conn. Humane Soc'y, 591 A.2d at 397. See also Telford v.
Thurston County Bd. of Comm'rs, 95 Wash.App. 149, 974 P.2d 886, 893-95
(1999) and cases cited therein. The courts do not require that an entity conform to
all factors, but that the factors be considered and weighed.[11] Conn. Humane
Soc'y, 591 A.2d at 397; Telford, 974 P.2d at 894.
[ 17] What the above-cited cases have in common is an inspection of the
functions of the entity under examination and a determination of whether, on
balance, the entity functions as a public agency. Our review of the functions of
HAD #1 convinces us that it functions as a political subdivision. First, it performs
what has been viewed as a governmental function, that of providing health care.
Second, although tax-generated funds are not currently used to finance the
operations of HAD #1, it has issued bonds under its legislative authority, and it
has the power to tax. Furthermore, the towns in the district are ultimately
responsible for the debts of HAD #1, and its assets will revert to the towns upon
dissolution. Third, the control of HAD #1 is in the hands of citizens elected from
each town in the district. The number of directors and manner of election is
directed by statute. Finally, it was created by the Maine Legislature.
Because HAD #1 functions as a political subdivision, we conclude that it
meets the definition of "political subdivision" in FOAA.
[ 18] Having concluded that HAD #1 is a political subdivision for the
purposes of FOAA, we next determine whether the records requested from HAD
#1 by the Town come within the definition of "public records" in section 402(3) of
FOAA. Records that are "received or prepared for use in connection with the
transaction of public or governmental business" are public records.
It is an undisputed fact on the record that Appellee is required by law to
maintain and disclose all data about every animal surrendered to them to the
Maine Department of Agriculture, Division of Animal Welfare, as confirmed to
Appellant by Liam Hughes, Director of Animal Welfare as evidenced unrebutted
in the record.
Furthermore, twenty-nine towns in the area pay a substantial portion of
their budget to the Appellee at a contracted per capita rate of $1.62 which is
subject to regular review and modification.
Appellee's budget is mainly funded by public tax deductible donations
given by private individuals, many of those donors also being direct customers.
Appellee is in fact subject to significant control, governance and legal
inspection for accurate recording of stray, missing and abandoned animals,
inter alia, as evidenced in Appellant's Memorandum in Opposition, pg 4 line 19,
and unrebutted by Appellee.
Champagne v. Humane Society, 737 P. 2d 1279 (1987) states,
"Although the Society is incorporated as a private, nonprofit
corporation, the City of Spokane has contractually delegated to the Society
the authority to enforce the animal regulations of its ordinance. See RCW
16.52.020; Storey v. Seattle, 124 Wash. 598, 602-04, 215 P. 514 (1923).
Likewise, the obligations contractually undertaken by the Society are no
different than those otherwise owed by Spokane to the general public.
Thus, in assuming those animal control duties contractually, the Society is
essentially acting as a public entity. See State ex rel. State Humane Soc'y
v. Hovey, 159 Wash. 584, 587, 294 P. 258 (1930) (Humane Society "is not
organized for the personal benefit of an individual or the personal benefit
of any set of individuals, but is organized for the public good, and is in its
substance and effect a public corporation."); Storey, at 602 (Humane
Society is "a public corporation, created by state law, to enforce its penal
laws relating to the regulation of cats and dogs.")."
CONCLUSION
Despite an abundance of clear and convincing evidence in support of
Appellant's Complaint, J. Murphy egregiously and knowingly ignored evidence,
long-standing statutes, and high court precedents dismissing the complaint
with prejudice and granted Appellee's 12(b)(6) Motion with an abundance of
evidence contradicting the superior court's decision that "The Humane Society,
Waterville Area is not subject to 1 MRSA 400 et seq."
If J. Murphy read any of Appellant's evidence and acted without negative
bias toward Appellant, she would see that Appellee has consistently claimed to
be a "public organization" on their IRS-990 form as well as having written and
binding contracts to engage in police activities in twenty-nine municipalities
without affording anyone any protections of constitutional due process.
The record and evidence proves Appellee is a state actor and public
organization by virtue of Appellee being unable to fulfill their essential mission
without explicit legislative support and municipal authority which has been
granted to them by twenty-nine municipalities affecting thousands of people.
J. Murphy's actions rise to the level of creating an ongoing personal tort
against Appellant in that J. Murphy's worthless determination that Appellee is
not a public organization has directly prevented Appellant from regaining
possession of a medically-mandated therapeutic device (Smokey) and resuming
therapeutic services which she had received from Smokey since 2008.
J. Murphy's prejudicial rulings against Appellant despite clear evidence
with statutory support in Appellant's favor, in this case and other unrelated
cases, individually and collectively rise to the level of malicious, willful
interference with Appellant's right to equal protection under the law and right
to due process, inter alia, which is actionable under 42 USC 1983 and 17
MRSA 2931.
Michaela Murphy has knowingly violated the Maine Constitution, Maine
Rules of Professional Conduct, Maine Rules of Judicial Conduct, Title 17 Maine
Revised Statutes 2931 and 42 USC 1983 when she intentionally used
abusive discretion and knowingly and arbitrarily dismissed Appellant's
Complaint knowing the subject property is a therapeutic device thereby
violating Appellant's human rights as protected by the Maine Human Rights
Act as well as the Americans with Disabilities Act, inter alia.
For the foregoing reasons, together with those reasons the law court
finds pertinent and persuasive, Appellant respectfully moves this court to
reverse superior court's determination that "The Humane Society, Waterville
Area is not subject to 1 MRSA 400 et seq."
Furthermore, Appellant moves this honorable court to order Appellee to
provide full and complete disclosure of all requested records forthwith and to
comply in strict compliance with statutory requirements pursuant to 1 MRSA
400 et seq. without protest for all future FOAA requests from all individuals.
Finally, Appellant respectfully moves this court to acknowledge these two
recorded facts which have egregiously injured and interfered with Appellant's
natural rights as protected by the Maine constitution:
1. HSWA and its counsel, Bryan B. Ward, Esq., BAR #004544, have
knowingly lied in legal proceedings provoking these questions:
a. Is HSWA's IRS 990 Form factually false?
b. Is HSWA's 12(b)(6) Motion to Dismiss factually false?
c. Is HSWA lying in other legal proceedings?
2. Michaela Murphy has evidently ignored clear evidence, statutory
guidelines and high court precedent willfully injuring Appellant's
right to due process and equal protection under law, inter alia.

Dated in Augusta Maine on this day.

April 13, 2014 In Peace,

GINA TURCOTTE
32 COURT ST APT 1
AUGUSTA, MAINE


CERTIFICATE OF SERVICE
I hereby certify that on April 13, 2014, I hereby certify that I have caused
all necessary copies to be delivered to the Court by United States Postal Service
Priority Mail.

DATED: April 13, 2014 __________________________________________
GINA TURCOTTE

MAINE SUPREME JUDICIAL COURT
SITTING AS THE LAW COURT

KEN-14-52

GINA TURCOTTE

APPELLANT

v.

HUMANE SOCIETY WATERVILLE AREA

APPELLEE

APPENDIX

Gina Turcotte
APPELLANT
32 Court St Apt 1
Augusta, Maine

APPENDIX
APPENDIX
Table of Contents

1. SUPERIOR COURT ORDER OF DISMISSAL
2. AUGSC-CV-2013-00226 DOCKET RECORD - DISMISSED WITH PREJUDICE
3. MEMORANDUM IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS
FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.

4. DEPT OF AGRICULTURE, ANIMAL CONTROL OFFICERS
5. IRS FORM 990 SCHEDULE A 2010
6. IRS FORM 990 OVERFLOW STATEMENT 2010
7. IRS FORM 990 SCHEDULE A 2011
8. IRS FORM 990 OVERFLOW STATEMENT 2011
9. HUMANE SOCIETY WATERVILLE INVOICE TO CITY OF WATERVILLE
10. HUMANE SOCIETY WATERVILLE ANIMAL HOUSING CONTRACT 2013
11. DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON
WHICH RELIEF CAN BE GRANTED.

12. COMPLAINT FOR INJUNCTIVE RELIEF, 1 MRSA 408-A
13. THREE PICTURES OF SMOKEY TAKEN BY APPELLANT (2009, 2010 and 2012)
14. HUMANE SOCIETY WATERVILLE FACEBOOK POSTING, JANUARY 4, 2013

C- . -;.,.- SUPERIOR COURT
KENNEBEC, ss.
GINA TURCOTTE
v.
Plaintiff,
HUMANE SOCIETY, WATERVILLE
AREA
Defendant.
)
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- --------
DOCKET NO:
ORDER DISMISSING COMPLAINT
The Court, having considered the foregoing pleadings, motions and responses; and good cause
appearing, hereby DISMISSES Plaintiffs Complaint dated 25 November 2013, with prejudice.
'}-L \A--__..J- ~ ) lrJ "- k-.--vc fG<- ~ V> 0 ~ f> \ J\ Vl__) '-( o;;, ~ ~ t
Dated: 1 \ ? o \ I ""\
- GIN'A TURCOTTE VS HUMANE SOCIETY WATERVILLE AREA
UTN:AOCSsr -2013-0085520
01 / 20 2014
~ M ~ ~ MURPHY
CASE IS DISMISSED WITH PREJUDICE
CASE # :AUGSC-CV-2013-00226
0.00
THE HUMANE SOCIETY WATERVILLE AREA IS NOT SUBJECT TO 1 M.R.S.A SECTION 400
ET. SEQ.
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MEMORANDUM IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS Page 1 of 10
MEMORANDUM IN OPPOSITION TO
RESPONDENT'S MOTION TO DISMISS
FOR FAILURE TO STATE A CLAIM UPON
WHICH RELIEF CAN BE GRANTED WITH
SUPPORTING EXHIBITS AND
INCORPORATED MEMORANDUM OF LAW
STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss

GINA TURCOTTE *
Claimant *
v *
HUMANE SOCIETY WATERVILLE AREA *
Respondent *

Claimant, GINA TURCOTTE, submits this Memorandum in Opposition to
Respondent's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be
Granted with Supporting Exhibits and Incorporated Memorandum of Law. As grounds
therefor, GINA TURCOTTE offers supporting exhibits and states as follows:
I. Introduction
On August 20, 2013, Claimant sent a FOAA request to Respondent, seeking the
name, address and phone number of the adopting party ("John Doe"), in addition to all
intake records, photographs, and medical records for the following animal: (Cl.'s
Compl. 9)
SURRENDERED BY: LINDA ANDREWS, 26 LOUISE AVE, APT 6, WATERVILLE
COLOR: Gold eyes, Grey/White med/long hair, white bib, paws, legs
PHOTO:
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Pursuant to 1 MRSA 408-A Respondent is in fact required to "acknowledge
receipt of a request made according to this section within 5 working days of receiving the
request" and "provide written notice of the denial, stating the reason for the denial,
within 5 working days of the receipt of the request".
Claimant has received no substantive response to her request from Respondent
and therefore filed this lawsuit on September 18, 2013.
Service of process to Director Kathleen Ross was completed in hand by Allen
Wood of the Kennebec County Sheriff's Office on December 2, 2013.
Proof of service and the original Summons were filed on December 11, 2013.
Respondent subsequently filed its motion to dismiss on December 13, 2013.
II. Argument
A. Respondent Misstated or Excluded Pertinent Material Facts.
1. Respondent's counsel, Bryan B. Ward, Esq., BAR #004544, states on
page 4 in the motion to dismiss, "...HSWA - being a private corporation -
is not subject to the disclosure provisions of the Maine Freedom of Access
Act. It is not a public entity, does not participate in public proceedings,
and does not create or retain public records within the meaning of the
Freedom of Access Act."
2. Bryan B. Ward, Esq., misstated or excluded pertinent material facts:
a. HSWA currently has contracts with twenty three municipalities to
provide legislatively controlled government services to the public.
Exhibit A
b. HSWA filed IRS Form 990 Public Charity Status and Public Support,
which indicated HSWA "is not a private foundation because it is...An
organization which receives a substantial part of its support from a
governmental unit or the general public described in section
170(b)(1)(A)(vi)". Exhibits B - G
c. HSWA reported 70.19% "public support percentage for 2010" on Form
990, Schedule A, Part II, Support Schedule for Organizations
Described in Sections 170(b)(1)(A)(iv) and 170(b)(1)(A)(vi), Section C,
Computation of Public Support Percentage. Exhibits B, C, D
d. HSWA reported 96.01% "public support percentage for 2011" on Form
990, Schedule A, Part II, Support Schedule for Organizations
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Described in Sections 170(b)(1)(A)(iv) and 170(b)(1)(A)(vi), Section C,
Computation of Public Support Percentage. Exhibit E, F, G
e. HSWA has consistently reported "the organization qualifies as a
publicly supported organization." because it receives 33 1/3 % or
more of its support from a government unit or the general public.
MEMORANDUM OF LAW
B. Standards Governing Rule 12(b)(6) Motion to Dismiss
The standard of review for a motion to dismiss for failure to state a claim
upon which relief can be granted is well settled. The motion must be decided
solely based on the allegations in the Claimant's complaint. See Fed.R.Civ.P.
12(d). The court does not decide disputed issues of fact; instead, it must assume
that all material facts in the Claimant's complaint are true. Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308 (2007). Not only must the court accept the
Claimant's allegations as true, but it also must accept as true all reasonable
factual inferences drawn from Claimant's allegations. See Kowal v. MCI Comm'ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir 1994); Schuler v. United States, 617 F.2d
605, 608 (D.C. Cir. 1970). Thus, factual allegations in briefs or memoranda of
law generally may not be considered when deciding a Rule 12(b)(6) motion,
particularly when the facts they contain contradict those alleged in the
complaint. Henthorn v. Dept. of Navy, 29 F.3d 682, 688. (D.C. Cir. 1994).
C. Maine Revised Statutes Governing Animal Shelters
7 MRSA 3936(1) Inspection and Quarantine establishes mandatory
control over Respondent's action, to wit, " The commissioner, a state humane
agent, a veterinarian employed by the State or a licensed veterinarian at the
direction of the commissioner may, at any reasonable time, enter an animal
shelter...and make examinations and conduct any recognized tests for the
existence of contagious or infectious diseases or conditions... The commissioner
may inspect animal shelters... in accordance with the sanitation and health rules
established by the department and for compliance with laws and rules, including
licensing and permitting requirements, of the Department of Inland Fisheries and
Wildlife pertaining to wildlife importation and possession. In conducting
inspections, measures established by the department through rulemaking must be
used to prevent the spread of infectious and contagious diseases. Rules adopted
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pursuant to this subsection are major substantive rules as defined in Title 5,
chapter 375, subchapter 2-A..." and "are subject to an increased level of rule-
making requirements." under 5 MRSA 8072. Legislative review of major
substantive rules.
7 MRSA 3936(2) Suspension of license. indicates "The department may,
in accordance with Title 5, chapter 375, subchapter 5, revoke or suspend a[n]
animal shelter ... license if a person maintaining the ...animal shelter ... violates
any quarantine or maintains animals contrary to the rules adopted by the
department, fails to keep records required by the department or violates any
provision of the laws or rules of the Department of Inland Fisheries and Wildlife
pertaining to wildlife importation and possession."
The foundational merits of this litigation are based upon Respondent's gross
negligent failure to properly maintain statutorily required records of lost and stray
animals as reported by the lawful owner (Claimant), the surrendering party (Linda
Andrews), or the adopting party (John Doe) resulting in grossly erroneous record-
keeping behaviors effectively violating Claimant's right to due process, inter alia.
Respondent's behavior has caused Claimant to suffer severe economic and
noneconomic injury through loss of affection and therapeutic relationship, inter alia.
Claimant personally spoke with Liam Hughes, Director of Animal Welfare, Maine
Department of Agriculture, confirming Respondent is subject to control, governance
and legal inspection for accurate recording of stray and abandoned animals, inter alia.
Supreme Court of Connecticut decided a similar case on point, in Connecticut
Humane Society v. Freedom of Information Commission, 218 Conn. 757 (1991),
clarifying, "Because legislation designed to protect animals from cruelty and neglect is
recognized as a valid exercise of the police power; 4 Am. Jur. 2d, Animals 27;
arguably, the [humane] society also performs a governmental function insofar as it
engages in the statutorily authorized activities involving the detention, shelter and
euthanasia of animals."
Washington Court of Appeals decided, in Clarke v. TCAC & CONTROL SHELTER,
181 P. 3d 881 (2008), "To be considered an "agency, 'TCAC must qualify as an 'other
local public agency.' This term is not defined in the PDA. Telford, 95 Wash.App. at 158,
974 P.2d 886.
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In Telford, Division Two of this court was asked to determine if two
organizationsthe "Washington State Association of Counties" and the "Washington
State Association of County Officials"were public entities. Id. at 152-56, 974 P.2d 886.
The court in Telford adopted a four-factor "functional equivalent" balancing test to
determine if an entity is to be regarded as a public agency for purposes of the PDA: (1)
whether the entity performs a governmental function; (2) the level of government funding;
(3) the extent of government involvement or regulation; and (4) whether the entity was
created by the government. Id. at 162, 974 P.2d 886. Under Telford, each of these
criteria need not be equally satisfied, but rather the criteria on balance should
suggest that the entity in question is the functional equivalent of a state or local
agency. Id.
In Spokane Research, this Division saw no need to apply Telford's four-factor test
because there was "no ambiguity as to the Association's nongovernmental status," and
thus it was not subject to the PDA. Spokane Research, 133 Wash.App. at 608, 137 P.3d
120. But here, TCAC is not so obviously beyond the reach of the PDA.[4] Thus, we
engage in a Telford analysis to determine whether TCAC is an "other local agency"
subject to the PDA. Under Telford, we conclude that TCAC is the functional
equivalent of a public agency.
Function. TCAC's purpose is to perform animal control services for the tri-
cities area...It recognizes the authority of cities and counties to pass local
ordinances regulating the care and control of animals... In turn, the statute
acknowledges that cities and counties may contract with animal care and
control agencies to perform these duties... An entity becomes an animal care
and control agency when it is "authorized to enforce city or county municipal
ordinances regulating the care, control, licensing, or treatment of animals
within the city or county," or when it contracts with the city or county as a
humane society to provide those services... In any event, an animal care and
control agency "may enforce the provisions of [chapter 16.52 RCW] only if the
county or city legislative authority has entered into a contract with the agency
to enforce [those provisions]." Former RCW 16.52.015(1) (emphasis added).
TCAC is authorized by the local government to provide animal control services.
Under former RCW 16.52.011(2)(b), it is therefore an animal care and control agency.
Individuals associated with TCAC take oaths as animal control officers; animal control
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officers can only be employed by an animal care and control agency. See former RCW
16.52.011(2)(c). As part of the oath, the employees of TCAC agree to enforce the area's
animal control regulations. As regulators, TCAC and its officers execute police
powers in carrying out their duties, most notably impounding and destroying
private citizens' pets. These types of acts implicate due process concerns. See,
e.g., former RCW 16.52.085 (discussing situations in which an animal control officer
does or does not need a warrant to remove an animal from private property). The
implication of police powers is clear from the language of former RCW
16.52.015(2), which requires animal control officers to comply with "the same
constitutional and statutory restrictions concerning the execution of police
powers imposed on law enforcement officers who enforce this chapter." Because
a local government grants TCAC the ability to execute police powers pursuant to
state statute, TCAC is performing a governmental function. Cf. Champagne v.
Spokane Humane Soc'y, 47 Wn. App. 887, 891, 737 P.2d 1279, review denied, 108
Wn.2d 1035 (1987) (humane society acting as a public entity for the purpose of the
public duty doctrine when City of Spokane contracted with it and delegated it the
authority to enforce the animal regulations); Brunette v. Humane Soc'y, 294 F.3d 1205,
1208 (9th Cir. 2002) (noting that a humane society created by statute and holding police
powers was a state actor for the purposes of 42 U.S.C. 1983 litigation), cert. denied,
537 U.S. 1112 (2003).
But while TCAC is performing a governmental function, Telford's analysis seems to
hinge on whether the entity's duties can be delegated to the private sector. Telford, 95
Wn. App. at 165. Although the function here was assigned to the private sector,
such delegation may only occur via a contractual relationship between the city
and the animal control agency. Former RCW 16.52.015(1). Hence, the nature of
the delegation merely allows TCAC to step into the shoes of the local
government.[6] In short, while the local government can delegate the
performance authority for this public function to a private entity, it cannot
delegate away its statutory responsibility to perform within PDA legal
requirements. TCAC's performance depends on its contract with the cities
involved. Former RCW 16.52.015(1). Thus, TCAC is performing a governmental
function that can never be wholly delegated to the private sector. Said another
way, were we to conclude that TCAC is not a functional equivalent of a public
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agency, we would be setting a precedent that would allow governmental
agencies to contravene the intent of the PDA and the Public Records Act by
contracting with private entities to perform core government functions. All told,
this factor balances in favor of finding that TCAC is the functional equivalent
of a public agency.
Government Funding. Nearly all of TCAC's operating budget comes from
public money. TCAC occupies space in a building rent-free, subsidized by the local
government with which it contracts, and it is forbidden by the terms of that contract from
engaging in any business on that premises other than its animal control services. Thus,
this factor clearly weighs in favor of application of the PDA.
Government Control. TCAC is in control of its day-to-day operations, and
maintains its own insurance. Its employees are not considered public employees and
receive no benefits from the local government. However, as noted above, there are some
government restrictions on how the government facilities can be used. In addition, TCAC
is only permitted to provide euthanasia services in a manner approved by ACA.
TCAC is also required to keep records and submit monthly reports to ACA. Thus,
there is a notable degree of governmental control here and this factor weighs in
favor of finding that TCAC is the functional equivalent of a public agency.
Origin. TCAC was formed as a private corporation, by private citizens, and
is not an entity created by the government. Although it could not perform its
function without its relationship to the local government, this factor weighs
against PDA application.
Balancing. Construing the PDA liberally in favor of the fullest possible
public records access, we balance these aforementioned factors. On balance, we
conclude TCAC is the functional equivalent of a public agency. While TCAC has
some non-public functions and characteristics, the fact that it performs a
governmental function dependent upon its relationship with the local
government, receives the bulk of its funding from taxpayer money to perform
that function, and is subject to regular government oversight, all tip the scale
in favor of finding that TCAC is the functional equivalent of a public agency.
HSWA signed a contract with Town/City of Waterville, signed by the Municipal
Town Officer and HSWA's Executive Director, stating, in part, "THIS AGREEMENT,
entered into on July 1,2013 by and between the Town/City (hereafter called town) of
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Waterville, Maine and the Humane Society-Waterville Area (hereafter called Shelter) is in
effect from July 1, 2013 through June 30,2014.
By statue, ALL towns are either required to maintain an animal shelter or
otherwise provide such services with regard to stray domestic animals.
The SHELTER is hereby employed and authorized to act as an animal shelter and
is equipped to provide such services in compliance with statutory requirements. The
SHELTER will provide food, water, shelter, medical care, and/or any other humane
treatment for such domestic animals while they are in possession of the SHELTER.
By statute, Title 7 MRSA, Section 3947,every town shall appoint one or more
Animal Control Officer(s) (hereafter called ACO). The ACO from the City of Waterville shall
transport stray and abandoned domestic animals (which shall include cats and ferrets)
to the SHELTER. Transportation must be carried out in a humane manner, Title 7 MRSA,
Section 3981. et. reg.
The ACO will ensure that sick or injured animals at large receive proper medical
attend and transport said animals directly to a licensed veterinarian. Veterinary costs
incurred for stray animals are the responsibility of the Town from which the animal is
transported unless the owner is found." Exhibits H, I
D. Respondent Has Failed To Demonstrate That This Case Should Be
Dismissed.
Respondent's motion is based entirely on their misstatement or exclusion of vital
material facts claiming HSWA is not "a public entity, does not participate in public
proceedings, and does not create or retain public records", which is wholly untrue and
intended to mislead this court.
As wholly rebutted above and evidenced herein, HSWA does in fact qualify as a
public entity having written contracts calculated per capita with twenty three Maine
municipalities, receiving more than 95% of their financial support from general public,
being vastly governed by legislative control, for the purpose of providing vital public
services which are paid by the Town/City.
Respondent HSWA "is the functional equivalent of a public agency".
Therefore, because Respondent has not otherwise shown that Claimant's
complaint fails to state a claim upon which relief can be granted, Respondent's motion
must be denied and declaratory judgment under Rule 57 be entered for Claimant as a
matter of law.
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III. Conclusion
For all the reasons indicated above, this court must deny Respondent's motion
to dismiss, enter declaratory judgment that Respondent is a public agency subject to
the FOAA and order immediate disclosure of the name, address and phone number of
the adopting party ("John Doe"), in addition to all intake records, photographs, and
medical records for the following animal:
PHOTO:

WHEREFORE, Claimant moves this court to deny Respondent's Motion to
Dismiss For Failure to State A Claim Upon Which Relief Can Be Granted, enter a
declaratory judgment as a matter of law in Claimant's favor that Respondent is a
public agency and is subject to the FOAA, order instant disclosure of the public
records which are the subject of this action, and to order all other appropriate relief
and actual costs to bring suit.

DATED: December 30, 2013 ___________________________________________
GINA TURCOTTE
41 LAMBERT AVENUE
AUGUSTA, MAINE

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I, GINA TURCOTTE, hereby certify that on December 30, 2013 the foregoing
document was served on Respondent via first-class mail, postage prepaid.

DATED: December 30, 2013 ___________________________________________
GINA TURCOTTE
41 LAMBERT AVENUE
AUGUSTA, MAINE
Page 1 Animal Welfare: Maine ACF
12/27/2013 10:30:13 PM http://www.maine.gov/dacf/ahw/animal_welfare/animal_control_officers.shtml
Department of Agriculture, Conservation and Forestry
DACF Home Bureaus & Programs Division of Animal and Plant Health Animal Welfare Animal Control Officers
Animal Welfare
Animal Control Officers
Show 100 entries
Search: Waterville Humane Society
City or Town
ACO/
Alternate
ACO
Contracted
Animal Shelter
Phone (during business hours) /
(after hours)
Town Office
Phone
Tag Numbers
Albion
Herbert
Gordon /
Waterville
Humane Society
(207) 649-4712 / 207-437-2900
Belgrade Kathleen Ross /
Waterville
Humane Society
(207) 441-7121 / (207) 495-2258
Benton Dave Huff /
Waterville
Humane Society
(207) 487-1632 / (207) 487-1632 (207) 453-7191
Brooks
Jane
McLaughlin /
Waterville
Humane Society
(207) 322-9764 / (207) 322-9764 (207) 722-3254
Burnham
John
Berryman /
Waterville
Humane Society
(207) 716-6681 / (207) 716-6681 (207) 948-2369
Canaan Lisa Eldridge /
Waterville
Humane Society
(207) 612-9188 / (207) 612-9188 (207) 474-8682
Clinton Dave Huff /
Waterville
Humane Society
207-426-9192 / 207-426-9192 (207) 426-8511
Detroit Karen Baker /
Waterville
Humane Society
(207) 474-6386 / (207) 474-6386 (207) 257-4488
Fairfield Dave Huff /
Waterville
Humane Society
(207) 487-1632 / (207) 453-7911
Freedom Scott Holmes /
Waterville
Humane Society
(207) 382-6245 / (207) 382-6245 (207) 382-6177
Jackson
Cynthia
Ludden /
Waterville
Humane Society
(207) 722-3205 or (207) 322-9469 /
(207) 722-3205 or (207) 322-9469
(207) 722-3439
Knox Scott Holmes /
Waterville
Humane Society
(207) 382-6245 / (207) 314-7438 (207) 568-3907
Mercer Kathleen Ross /
Waterville
Humane Society
207 441-7121 / 207 441-7121 207 587-2911
Monroe
Alden Brown /
Daine Brown
Waterville
Humane Society
207-722-3759 / (207) 525-3515
109501-109800
2010
Rome Kathy Ross /
Waterville
Humane Society
207-441-7121 / (207) 397-4011
Swanville Diane Brown /
Waterville
Humane Society
722-3759 / 171451-171650 2010
Thorndike
Michelle
Haskell /
Waterville
Humane Society
207-437-4224 / 207-568-3655 173901-174150 2011
Troy
Michelle
Haskell /
Waterville
Humane Society
207-437-4224 / 207-437-4224 (207) 948-2283
Unity Susan Dwyer /
Waterville
Humane society
207-568-3141 or 207-851-8080 / Same (207) 948-3763
Waldo
Kelly Bucklin-
McGray /
Waterville
Humane Society
(207) 342-2410 / (207) 342-2410 (207) 342-5400 178751-178950 2010
Waterville
Christopher
Martinez /
Waterville
Humane Society
(207) 680-4700 / Same (207) 680-4700
Winslow
Charles
Theobald /
Waterville
Humane Society
207-872-5215 / 207-872-5215 (207) 872-2776
193501-194450
2010
Oakland
Patrick
Faucher /
Kathleen Ross
Humane Society
Waterville Area
207-465-2202 / 207-465-2202 (207) 465-7357
Showing 1 to 23 of 23 entries (filtered from 497 total entries)
PreviousNext
Credits
EXHIBIT A
Appellant's Memo in Opposition
EXHIBIT B
EXHIBIT C
EXHIBIT D
SCHEDULEA
(Form 990 or 990- EZ )
Department of th e Treasury
I nternal Revenue Service
Publ ic Ch arity Status and Publ ic Support
Compl ete if th e organization is a section 5 01 (c) (3 ) organization or a section
4947(a) (1 ) nonexempt ch aritabl e trust.
1 0 ' Attach to Form 990 or Form 990- EZ . See sepa rate instructions.
0MB No 1 5 45 - 0047
201 1
Name of th e agi- Eowl a) w idanh Ti6on rurdar
Humane Society Watervil l e Area 23 - 7076479
Reason f or Publ ic Ch arity Status (Al l organizations must compl ete th is part) See instructions
Th e organization is not a private f oundation because it is (For l ines 1 th rough 1 1 , ch eck onl y one box )
I K Ach urch , convention of ch urch es, or association of ch urch es described in section 1 70(b) (1 ) (A) (i) .
2 K Asch ool described in section 1 70(b) (1 ) (A) (il ) . (Attach Sch edul e E )
3 K A h ospital or a cooperative h ospital service organization described in section 1 70(b) (1 ) (A) (iii) .
4 K Amedical research organization operated in conjunction with a h ospital described in section 1 70(b) (1 ) (A) (iii) . Enter th e h ospital ' s name,
city, and state
5 K An organization operated f or th e benef it of a col l ege or university owned or operated by a governmental unit described in
section 1 70 (b) (1 ) (A) (iv) . (Compl ete Part I I ) -
6 K Af ederal , state , or l ocal government or governmental unit described in section 1 70(b) (1 ) (A) (v) .
7 An organization th at normal l y receives a substantial part of its support f rom a governmental unit or f rom th e general publ ic
described in section 1 70(b) (1 ) (A) (vi) . (Compl ete Part I I )
8 K Acommunity trust described in section 1 70(b) (1 ) (A) (vi) . (Compl ete Part I I )
9 K An organization th at normal l y receives- (1 ) more th an 3 3 1 /3 % of its support f rom contributions, membersh ip f ees, and gross
receipts f rom activities rel ated to its exempt f unctions - subject to certain exceptions, and (2) no more th an 3 3 1 /3 % of its
support f rom gross investment income and unrel ated business taxabl e income (l ess section 5 1 1 tax) f rom businesses
acquired by th e organization af ter June 3 0, 1 975 See section 5 09(a ) (2) . (Compl ete Part I I I )
1 0 K An organization organized and operated excl usivel y to test f or publ ic saf ety See section 5 09(a) (4) .
1 1 K An organization organized and operated excl usivel y f or th e benef it of , to perf orm th e f unctions of , or to carry out th e
purposes of one or more publ icl y supported organizations described in section 5 09(a) (1 ) or section 5 09(a) (2) . See section
5 09(a ) (3 ) . Ch eck th e box th at describes th e type of supporting organization and compl ete l ines 1 1 e th rough 1 1 h
a K Type I b K Type I I c K Type I I I - Functional l y integrated d K Type I I I - O th er
e K By ch ecking th is box, I certif y th at th e organization is not control l ed directl y or indirectl y by one or more disqual if ied
persons oth er th an f oundation managers and oth er th an one or more publ icl y supported organizations described in section
5 09(a) (1 ) or section 5 09(a) (2)
f I f th e organization received a written determination f rom th e I RS th at it is a Type I , Type I I , or Type I I I supporting
organization, ch eck th is box . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . K
g Since August 1 7, 2006, h as th e organization accepted any gif t or contribution f rom any of th e
f ol l owing persons?
(i) Aperson wh o directl y or indirectl y control s, eith er al one or togeth er with persons described in (n) Y es No
and (iii) bel ow, th e governing body of th e supported organization? . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 9(1 )
(ii) Af amil y member of a person described in (I ) above? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 90
(1 1 1 ) A3 5 % control l ed entity of a person described in (I ) or (B) above? . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 90
Et-
h Provide th e f ol l owina inf ormation about th e suooorted oraanization(s)
() Name of supported
organization
(on) EI N (I ) Type of organization
(described on l ines 1 - 9
above or I RC section
(tee 6) )
(n) I s th e organization
in col () l isted in your
governing document?
(v) Did you notif y
th e organization in
col () of your
support?
( vi) I s th e
organization in col
n organized in th e
US?
I va) Amount of
support
Y es No Y es No Y es No
(A)
(B)
(C)
(D)
(E)
Total
For Paperwork Reduction Act Notice, see th e I nstructions f or EEA Sch edul e A(Fam99DQ9904Z ) 2o1 1
Form 990 or 990- EZ .
EXHIBIT E
S c h e d u l e A ( F o r m 9 9 0 o r 9 s o - E Z ) 2 0 1 1 Hu m ane S o c ie ty Wate r vil l e A r e a 2 3- 70 76479 Page 2
S u ppo r t S c h e d u l e fo r Or ganizatio ns De s c r ibe d in S e c tio ns 1 70 ( b) ( 1 ) ( A ) ( iv) and 1 70 ( b) ( 1 ) ( A ) ( vi) ;
( Co m pl e te o nl y if yo u c h e c ke d th e bo x o n l ine 5 , 7, o r 8 o f Par t I o r if th e o r ganizatio n fail e d to q u al ify u nd e r
Par t I I I I f th e o r ganizatio n fail s to q u al ify u nd e r th e te s ts l is te d be l o w , pl e as e c o m pl e te Par t I I I )
S e c tio n A . Pu bl ic S UDDo r t
Cal e nd ar ye ar ( o r fis c al ye ar be ginning in) 1 1 0 , ( a) 2 0 0 7 ( b) 2 0 0 8 ( c ) 2 0 0 9 ( d ) 2 0 1 0 ( e ) 2 0 1 1 ( f) T o tal
I G ifts , gr ants , c o ntr ibu tio ns , and
m e m be r s h ip fe e s r e c e ive d ( Do no t
inc l u d e any " u nu s u al gr ants " ) . . . . . 2 5 2 , 1 41 2 31 , 89 0 31 3, 31 1 878 , 9 2 0 2 76 , 5 77 1 , 9 5 2 , 839
2 T ax r e ve nu e s l e vie d fo r th e o r ganizatio n' s
be ne fit and e ith e r paid to o r e xpe nd e d o n
its be h al f . .. . . .. . .. . . . . . .
3 T h e val u e o f s e r vic e s o r fac il itie s
fu r nis h e d by a go ve r nm e ntal u nit to th e
o r ganizatio n w ith o u t c h ar ge ..... .
4 T o tal . A d d l ine s 1 th r o u gh 3 . . .. . . 2 5 2 , 1 41 2 31 , 89 0 31 3, 31 1 878 , 9 2 0 2 76, 5 77 1 , 9 5 2 , 839
5 T h e po r tio n o f to tal c o ntr ibu tio ns by e ac h
pe r s o n ( o th e r th an a go ve r nm e ntal u nit o r
pu bl ic l y s u ppo r te d o r ganizatio n) inc l u d e d
o n l ine 1 th at e xc e e d s 2 % o f th e am o u nt
s h o w n o n l ine 1 1 , c o l u m n ( f) . . . . . .
6 Pu bl ic s u ppo r t. S u btr ac t l ine 5 fr o m I n 4 1 , 9 5 2 , 839
, e c u o n ti. I o tal 1 UDDOR
Cal e nd ar ye ar ( o r fis c al ye ar be ginning in) 0 1 1 ( a) 2 0 0 7 ( b) 2 0 0 8 ( c ) 2 0 0 9 ( d ) 2 0 1 0 ( e ) 2 0 1 1 ( f) T o tal
7 A m o u nts fr o m l ine 4 . . . . . . . . . . 2 5 2 , 1 41 2 31 , 89 0 31 3, 31 1 878, 9 2 0 2 76, 5 77 1 , 9 5 2 , 839
8 G r o s s inc o m e fr o m inte r e s t, d ivid e nd s ,
paym e nts r e c e ive d o n s e c u r itie s l o ans ,
r e nts , r o yal tie s and inc o m e fr o m s im il ar
s o u r c e s . . . . . . . . . . . . . . . . 1 9 , 5 82 1 4, 0 63 1 4, 79 0 6, 5 2 9 2 6, 1 9 81 , 1 63
9 Ne t inc o m e fr o m u nr e l ate d bu s ine s s
ac tivitie s , w h e th e r o r no t th e bu s ine s s is
r e gu l ar l y e ar ne d o n . . . . . . . . . . .
1 0 Oth e r inc o m e Do no t inc l u d e gain o r
l o s s fr o m th e s al e o f c apital as s e ts
( E xpl ain in Par t I V ) . . . . . . . . . . .
1 1 T o tal s u ppo r t. A d d l ine s 7 th r o u gh 1 0 . 2 , 0 34, 0 0 2
1 2 G r o s s r e c e ipts fr o m r e l ate d ac tivitie s , e tc ( s e e ins tr u c tio ns ) ........ .. ........ .. .. .. .. 1 2
1 3 F ir s t five ye ar s . I f th e F o r m 9 9 0 is fo r th e o r ganizatio n' s fir s t , s e c o nd , th ir d , fo u r th , o r fifth tax ye ar as a s e c tio n 5 0 1 ( c ) ( 3)
o r ganizatio n , c h e c k th is bo x and s to p h e r e ....... ..... .. .. .............. .. .. . . .. .. . ... . . .. . ^n
1 4 Pu bl ic s u ppo r t pe r c e ntage fo r 2 0 1 1 ( l ine 6, c o l u m n ( f) d ivid e d by l ine 1 1 , c o l u m n ( f) ) . . . . . . . . . . . . . . 1 4 9 6.0 1 %
1 5 Pu bl ic s u ppo r t pe r c e ntage fr o m 2 0 1 0 S c h e d u l e A , Par t I I , l ine 1 4 . . . . . . . . . . . . . . . . . .. . . . . 1 5 70 .1 9 %
1 6a 33 1 /3% s u ppo r t te s t - 2 0 1 1 . I f th e o r ganizatio n d id no t c h e c k th e bo x o n l ine 1 3, and l ine 1 4 is 33 1 /3% o r m o r e , c h e c k th is bo x
and s to p h e r e . T h e o r ganizatio n q u al ifie s as a pu bl ic l y s u ppo r te d o r ganizatio n .......... .. .. .... . . .. . . .... . . . ^[^
b 33 1 / 3% s u ppo r t te s t - 2 0 1 0 . I f th e o r ganizatio n d id no t c h e c k a bo x o n l ine 1 3 o r 1 6a, and l ine 1 5 is 33 1 / 3% o r m o r e , c h e c k th is
bo x and s to p h e r e . T h e o r ganizatio n q u al ifie s as a pu bl ic l y s u ppo r te d o r ganizatio n ... ....... .. .... .. .. . ... . . .. . ^K
1 7a 1 0 %- fac ts - and - c ir c u m s tanc e s te s t - 2 0 1 1 . I f th e o r ganizatio n d id no t c h e c k a bo x o n l ine 1 3, 1 6a, o r 1 6b, and l ine 1 4 is 1 0 % o r
m o r e , and if th e o r ganizatio n m e e ts th e " fac ts - and - c ir c u m s tanc e s " te s t, c h e c k th is bo x and s to p h e r e . E xpl ain in Par t I V h o w th e
o r ganizatio n m e e ts th e " fac ts - and - c ir c u m s tanc e s " te s t T h e o r ganizatio n q u al ifie s as a pu bl ic l y s u ppo r te d o r ganizatio n . .. . .... . .. . ^K
b 1 0 %- fac ts - and - c ir c u m s tanc e s te s t - 2 0 1 0 . I f th e o r ganizatio n d id no t c h e c k a bo x o n l ine 1 3, 1 6a, 1 6b, o r 1 7a, and l ine 1 5 is 1 0 % o r
m o r e , and if th e o r ganizatio n m e e ts th e " fac ts - and - c ir c u m s tanc e s " te s t, c h e c k th is bo x and s to p h e r e . E xpl ain in Par t I V h o w th e
o r ganizatio n m e e ts th e " fac ts - and - c ir c u m s tanc e s " te s t T h e o r ganizatio n q u al ifie s as a pu bl ic l y s u ppo r te d o r ganizatio n . .. . . . ... . . . ^K
1 8 Pr ivate fo u nd atio n. I fth e o r ganizatio n d id no t c h e c k a bo x o n l ine 1 3, 1 6a, 1 6b, 1 7a, o r 1 7b, c h e c k th is bo x and s e e ins tr u c tio ns . . . . . . . ^K
E E A S c h e d tr e A ( F ar m 9 9 0 Q9 9 0 .Q) 2 0 7 7
EXHIBIT F
990
Overflow Statement
P ad
e1
1
Name ( s ) as s hown on retu rn
Hu mane Societ y Waterville Area
FEIN
23-7076479
1 F OTHER
Des cription Amou nt
ANIMAL ADOP TION FEES $ 21 ,755
CREAMATION ( 5,745)
ANIMAL CARE SP ONSORS 4,460
CRATE RENTAL 1 20
DOG OBEDIENCE FEES 1 ,336
P UBLIC DONATIONS 1 02,1 51
LICENSE FEES 2,426
MICRO CHIP S 3,506
RELEASED ANIMALS 3,620
RETURN TO OWNERS 4,609
SP ECIAL GIFTS 1 2,027
STRAY DOG FEES 1 0,701
ASP CA GRANT 3,500
FEDERAL HEALTH INSURANCE CREDIT 3,800
Total : $ 1 68,266
OVERFLOW LD
EXHIBIT G
EXHIBIT H
EXHIBIT I
SUPERIOR COURT
KENNEBEC, ss.
GINA TURCOTTE
v.
Plaintiff,
HUMANE SOCIETY, WATERVILLE
AREA
Defendant.
)
)
DOCKET NO:
) DEFENDANT'S MOTION TO DISMISS FOR
) FAILURE TO STATE A CLAIM UPON
) WHICH RELIEF CAN BE GRANTED
) (M.R. CIV. P. 12(b)(6)
)
)
)
NOW COMES, Defendant HUMANE SOCIETY, WATERVILLE AREA ("HSWA"),
?
by and through undersigned counsel, and moves this Court to dismiss Plaintiff's Complaint in
this matter for failure to state a claim uponwhich relief can be granted pursuant to M.R. Civ. P.
12(b)(6).
The purpose of a motion to dismiss is to test the legal sufficiency of the complaint, rather
than to probe the merits ofthe underlying case. Haskell v .. Phinney, 460 A.2d 1354 (Me. 1983).
A complaint is properly dismissed for failure to state a claim upon which relief may be granted
when it is beyond doubt that the plaintiff is entitled to no relief under any set of facts that might
be proven in support of the claim. Richardson v. Winthrop School Department, 983 A.2d 400
(Me. 2009).
In the instant case, Plaintiff brings her action under the Mairie Freedom of Access Act, 1
M.R.S.A. 400 et. seq. Plaintiff prays for injunctive and other relief to compel HSWA to
disclose to her its records regarding a certain cat. Plaintiff admits in her complaint however that
HSW A is a privately owned non-profit. (Pl.'s Com pl. 8).
It is undisputed that the Maine Freedom of Access Act only applies to "public
proceedings" and associated "public records". The enabling legislation is clear on this point,
stating:
The Legislature finds and declares that public proceedings exist to
aid in the conduct of the people's business. It is the intent of the
Legislature that their actions be taken openly and that the records
" I
of their actions be open to public inspection and their deliberations
be conducted openly. 1 M.R.S.A. 400 (emphasis supplied).
The legislation further goes on to define "public as:
[T]he transactions of any functions affecting any or all citizens of
the State by any of the following:
A. The Legislature of Maine and its committees and
subcommittees;
B. Any board or commission of any state agency or authority, the
Board of Trustees ofthe Uni,versity of Maine System and any of its
committees and subcommittees, the Board of Trustees of the
Maine Maritime Academy and any of its committees and
subcommittees, the Board of Trustees of the Maine Community
College System and any of its committees and subcommittees;
C. Any board, commission, agency or authority of any county,
municipality, school district or any regional or other political or
administrative subdivision;
D. The full membership meetings of any association, the
membership of which is composed exclusively of counties,
municipalities, school administrative units or other political or
administrative subdivisions; of boards, commissions, agencies or
authorities of any such subdivisions; or of any combination of any
of these entities;
E. The board of directors of a nonprofit, nonstock private
corporation that provides statewide noncommercial public
broadcasting services and any of its committees and
subcommittees;
F. Any advisory organization, including any authority, board,
commission, committee, council, task force or similar organization
of an advisory nature, established, authorized or organized by law
or resolve or by Executive Order issued by the Governor and not
otherwise covered by this subsection, unless the law, resolve or
Executive Order establishing, authorizing or organizing the
advisory organization specifically exempts the organization from
the application of this subchapter; and
G. The committee meetings, subcommittee meetings and full
membership meetings of any association that:
(1) Promotes, organizes or regulates statewide
interscholastic activities in public schools or in both public
and private schools;"lmd
(2) Receives its funding from the public and private school
members, either through membership dues or fees collected
from those schools based on the number of participants of
those schools in interscholastic activities.
1 M.R.S.A. 402(2)
The legislation further defines "public records" as:
Any written, printed or graphic matter or any mechanical or
electronic data compilation from which information can be
obtained, directly or after translation into a form susceptible of
visual or aural comprehension, that is in the possession or custody
of an agency or public official of this State or any of its political
subdivisions, or is in the possession or custody of an association,
the membership of which is composed exclusively of one or more
of any of these entities, and has been received or prepared for use
in connection with the transaction of public or governmental
business or contains information relating to the transaction of
public or governmental business ... (exceptions omitted) (emphasis
supplied) 1 M.R.S.A. 402(3).
In the instant case HSWA - being a private corporation - is not subject to the disclosure
provisions of the Maine Freedom of Access Act. It is not a public entity, does not participate in
public proceedings, and does not create or retain public records within the meaning of the
Freedom of Access Act.
Given the above, this court could not under any circumstances grant to Plaintiff the relief
she seeks because the court has no authority under the Freedom of Access Act to compel a
private corporation to divulge private information, confidential records, or trade secrets.
Plaintiff has therefore failed to state a claim upon which relief can be granted.
WHEREFORE, Defendant HSWA respectfully requests this Court dismiss Plaintiff's
Complaint with prejudice, together with alPDther relief deemed appropriate by the Court.
RESPECTFULLY SUBMITTED this /S of December 2013.

Attorney for Defendant
O'Donnell, Lee, McCowan & Phillips
112 Silver Street, P.O. Box 559
Waterville, ME 04901
207-872-0112
NOTICE OF MOTION
If you want to oppose this motion, you must file a Memorandum in Opposition with the Clerk's
Office. The Memorandum must be filed with the Court within twenty-one (21) days of the date
ofthe filing of this Motion. If you fail to file a Memorandum in Opposition to this Motion
within twenty-one (21) days, it will be presumed that you do not object to the Motion and the
Motion may be granted by the Court without further notice to you and without a hearing.
I hereby certify that on 13 December 2013 I served the foregoing document on all parties of
record via first-class mail, postage prepaid.
Gina Turcotte
41 Lambert A venue
Augusta, ME 04330
Dated: 13 December 2013
B b w : f ~ B ~ ~
Attorney for Defendant
O'Donnell, Lee, McCowan & Phillips
112 Silver Street, P.O. Box 559
Waterville, ME 04901
207-872-0112
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COMPLAINT FOR INJUNCTIVE RELIEF ~ FOAA Page 1 of 4
COMPLAINT
for INJUNCTIVE RELIEF
1 MRSA 408-A
STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss

GINA TURCOTTE *
41 LAMBERT AVENUE *
AUGUSTA, MAINE *
Claimant *
v *
*
HUMANE SOCIETY WATERVILLE AREA *
100 WEBB ROAD *
WATERVILLE, MAINE *
Respondent *
INTRODUCTION
1. GINA TURCOTTE brings this action under 1 MRSA 408-A MAINE
FREEDOM OF ACCESS ACT for injunctive and other appropriate relief to enforce her
right to prompt disclosure of public agency records. Claimant seeks immediate release
of public records requested from HUMANE SOCIETY WATERVILLE AREA for the name,
address and phone number of the adopting party ("John Doe"), in addition to all intake
records, photographs, and medical records for the following animal:
PHOTO:

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PARTIES
2. GINA TURCOTTE has a right to review and receive public documents in
the custody of public benefit, non-profit agencies.
3. The animal indicated herein is GINA TURCOTTE's legal service animal
named SMOKEY (HSWA named "SHAMOO" on November 12, 2012).
4. GINA TURCOTTE alleges, swears and affirms SMOKEY and SHAMOO are
in fact the same service animal.
5. GINA TURCOTTE is the lawful owner of the service animal named herein.
6. HUMANE SOCIETY WATERVILLE AREA is a privately-owned, public
benefit, non-profit agency supported by 95% public donations for the purpose of
reuniting, sheltering and re-homing lost and abandoned animals.
FACTUAL ALLEGATIONS
7. Through the FOAA, on August 20, 2013, Claimant requested the name,
address and phone number of the adopting party ("John Doe"), in addition to copies of
all intake records, photographs, and medical records from HUMANE SOCIETY
WATERVILLE AREA for the animal named herein.
Public Interest in Fraudulent and Unfair Trade Practices by a Public Benefit Agency
8. Claimant and the public at large have a right to know if Respondent's
policy prevents accurate and appropriate record-keeping of surrendered animals for
the purpose of increasing Respondent's private corporate revenue.
9. Claimant and the public at large have a right to know if a pecuniary
conflict of interest exists when surrendering animals to or adopting from Respondent.
10. Claimant and the public at large have a right to know if their animals are
being illegally sold by Respondent without having proper legal title to said animals.
11. Claimant alleges Respondent knows they have a conflict of interest in the
performance of their duties under contract to local municipalities to shelter and report
stray animals to the public, care for and reunite lost animals with their lawful owners.
12. Claimant delivered a Freedom of Access Act Request to the HUMANE
SOCIETY WATERVILLE AREA on August 20, 2013, to wit:
Under the Maine Freedom of Access Act 402 et seq., I am requesting
copies of name, address and phone number of the adopting party, in
addition to all intake records, photographs, medical records for the
following animal:
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SURRENDERED BY: LINDA ANDREWS, 26 LOUISE AVE, APT 6,
WATERVILLE
NAME: SHAMOO
COLOR: Gold eyes, Grey/White med/long hair, white
bib, paws, legs
ADOPTED ON/ABOUT: January 4, 2013
PHOTO

I am requesting a waiver of all fees in that I am indigent which can
be supported by a separate affidavit if so required.
If you intend to deny this request, I expect to hear from you within
the five (5) business days as mandated by law. Also, if you expect a
significant delay in responding to this request, please contact me
immediately in writing with information about when I might expect to
receive copies of or the ability to inspect the requested records.
If my request is denied in whole or part, I require you to justify all
omissions and deletions by reference to specific exemptions of the act. I
also expect you to release all segregable portions of otherwise exempt
material. I, of course, reserve the right to appeal your decision to withhold
any information or to deny a waiver of fees.
I expect to receive a reply within 20 business days, as the statute
requires.
13. Claimant has not received any communication from Respondent.
14. Respondent failed to comply with 1 MRSA 408-A(3), 1 MRSA 408-A(4),
and 1 MRSA 413(2) in their unexcused failure to acknowledge Claimant's request.
15. Respondent is subject to 1 MRSA 410 for their willful violation of the law.
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16. To date, Respondent has not acknowledged, denied nor completed
processing of Claimant's request.
17. Respondent has exceeded the generally applicable twenty-calendar-day
deadline for the processing of a FOAA request.
18. Respondent has not invoked the statutorily permitted extension for
unusual circumstances.
19. Claimant has exhausted all applicable administrative remedies with
respect to the Respondent's wrongful withholding of the requested records.
CAUSE OF ACTION
Violation of the Freedom of Information Act
for Wrongful Withholding of Agency Records
20. Claimant repeats and re-alleges allegations in paragraphs 1 through 19,
inclusive.
21. Respondent has wrongfully withheld public records requested by Claimant
by failing to comply with the statutory time limit for the processing of FOAA requests.
22. Claimant is entitled to an order requiring the immediate processing and
release of the requested documents.
REQUESTED RELIEF
WHEREFORE, Claimant moves this Court to:
A. order Respondent to immediately process the requested records in their
entirety and make copies available to Claimant free of charge;
B. provide for priority and expeditious proceedings in this action;
C. award Claimant actual expenses incurred in this action; and
D. grant such other relief as the Court may deem just and proper.

DATED: November 25, 2013 ___________________________________________
GINA TURCOTTE
41 LAMBERT AVENUE
AUGUSTA, MAINE
APPENDIX

I hereby certify that on April 13, 2014, I hereby certify that I have caused
all necessary copies to be delivered to the Court and Appellee by United States
Postal Service Priority Mail.

DATED: April 13, 2014 __________________________________________
GINA TURCOTTE

Gina Turcotte V Humane Society Waterville Area - Appellant's Appeal Brief

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