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A federal judge Tuesday denied a petition on behalf of Natural Bridge Zoo owners to delay a civil forfeiture hearing on the 95 animals seized by the state two weeks ago.
The state Attorney General’s Office, supported by the Virginia State Police, began searching the zoo on the morning of Dec. 6.
A hearing on whether the animals were subject to abuse or neglect will be heard this morning in Lexington/Rockbridge General District Court.
Mario Williams, attorney for zoo owners Karl and Debbie Mogensen, requested a temporary restraining order (TRO) from federal court last week.
The motion was filed on the grounds that the 10-day period between seizure of the animals and the hearing was not enough to allow for an adequate defense, and listed Michelle Welch, director of the Animal Law Unit of the state Attorney General’s Office, as the defendant.
Judge Norman Moon of the U.S. District Court Western District of Virginia conducted a “status conference” on the motion with attorneys for the zoo and Welch Monday afternoon and received further filings from both parties Monday night and Tuesday morning.
In a 16-page opinion published Tuesday afternoon, Moon wrote that, “Because Plaintiffs have not shown extraordinary circumstances to support a TRO in their request to have this federal court interfere in a forfeiture action under Virginia law brought by the Virginia Attorney General in Virginia state court, the Court will deny the Plaintiff’s motion.”
Moon cites the Virginia code, which specifies a period of “not more than 10 business days” between seizure of an animal and a hearing on that seizure.
In the motion entered last week, Williams claimed that the 10-day period was unconstitutional, a violation of his clients’ due process rights.
In this motion, according to Tuesday’s ruling, “Plaintiffs posit that the time period will not allow them time to acquire a legal team, request and acquire relevant discovery, to work through the seven banker boxes of evidence and the 1,500 pages of discovery already received; acquire experts to speak as to the various species of animals seized; provide those experts with adequate preparation time, and for the legal team to prepare for the hearing.”
However, the federal judge disagreed with these claims, writing that, as owners of the zoo, the Mogensens would already have much of the necessary information.
“Although the timeframe may not be ideal for the Plaintiffs, it is not so short that they have no opportunity to prepare a robust,” says Moon’s opinion. “As owners of the Zoo, they necessarily have the lion’s share of information about their own animals, care practices, and habits.”
He also pointed out that the burden of proof will rest on the state.
“What is more, at the civil forfeiture hearing, the Commonwealth is held to an exacting standard: it must prove its case beyond reasonable doubt.”
Federal precedent is also cited, as Moon quotes from the U.S. Supreme Court’s 1971 “Younger v. Harris” ruling, writing, “Since the beginning of this country’s history Congress has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from interference by federal courts.”
Though there are exceptions to this principle, Moon did not believe William’s motion meet the standards for those exceptions.
“There is no evidence of bad faith,” he writes, “Indeed, as discussed below, Plaintiffs have not shown it likely that the statute suffers from any constitutional infirmity.”
He also believes that William’s argument about the constitutionality of the seizure can be heard in the state court.
“Moreover, Plaintiffs put forward no evidence to suggest that they will not have an opportunity to meaningfully raise their constitutional concerns in state court — a fact which further confirms that abstention is appropriate in this case,” according to the opinion.
Though the case is currently civil, Williams believes that the criminal changes are to follow.
However, Moon noted that, the Mogensens will have the opportunity to appeal the ruling from today’s hearing if they are not satisfied w ith t he result. V irginia code allows those convicted of misdemeanors in general district court to appeal to circuit court.
The animals taken last week made up most of the zoo’s population and a monetary investment of around $1 million, according to the Mogensen’s attorney.
However, according to the court documents, some animals remain in the Mogensens’ care, though now being monitored by Animal Law Unit.
“The Defendant also issued ‘Action Plans’ to the Plaintiffs, which lay out care improvements needed for some 15 species of animals still in the Plaintiff’s possession,” according to background for Moon’s opinion.
In his filing last week, Williams argued that these plans were another violation of the Mogensens’ due process rights.
According to Moon’s Tuesday opinion, “Plaintiffs merely assert that ‘irreparable harm has been caused by the Action Plans which place Mr. and Mrs. Mogensen under a permanent spotlight related to animals the government admits were not seized and were not subject to their upcoming civil forfeiture hearing.’” Moon said there was not enough evidence to determine if this was a violation of due process.
“The Court is not sure what this means — presumably that the Commonwealth will monitor Plaintiff’s Zoo to determine whether the animals there are abused or neglected,” the opinion reads.
“In the absence of more evidence and argument from Plaintiffs, the Court cannot conclude that they meet the requirements for a TRO as to the Action Plans.”
