46 BIENNIAL REPORT OF

BUILDINGS DIVISION

February 27, 1973

Hon. Irving Bates, Director of State Buildings, Montpelier:

You have asked me informally for my opinion regarding constitutionality of a proposed regulation which would prohibit the presence of Hector, a dog who is a registered pure blood black Labrador retriever, in the Offices of the Attorney General.

While I have no doubt of the authority of your agency to promulgate such a regulation, see 3 V.S.A. 207, I have serious doubts as to its constitutionality. Of course, it is not for this office to pass on the wisdom of the proposal, but to merely advise on the lawfulness of it.

Nevertheless, you should be aware that Hector has had a considerable amount of state government experience. He served faithfully in the Department of Education and in the State’s Attorney’s Office of Washington County. He also appeared before several courts of the State (though never admitted to practice).

I presume your proposed regulation is to apply not to the dog, but to the dog owner, with appropriate penalties. In my opinion, the regulation would be clearly invalid if applied to the dog. A long line of cases holds that criminal guilt will not attach to those incapable of understanding the nature and quality of the act prescribed.

Perhaps the best treatment of the proposed constitutionality of your regulation as applied to the owner of the dog is found in

THE ATTORNEY GENERAL 47

Note, Man, His Dog And Birth Control, 70 Yale L.J. 1205 (1961). As stated there:

"Assuming a construction which did apply the regulation to dog owners, a court would then have to consider whether such application constituted a deprivation of property without due process of law. Courts have long recognized that the dominion exercised by a dog owner over his dog differs in kind from that exercised over inanimate possessions.

As Chief Justice Appleton correctly observed: "From the time of the pyramids to the present day, from the frozen pole to the torrid zone, wherever man has been there has been his dog!" Moreover, (some states like) Connecticut no longer consider property interests in dogs as merely "base." Since this classification was dependent solely on whether the animal was fit to eat or of use as a beast of burden, its rejection suggests a recognition that purely economic criteria are inapplicable in evaluating the impact of legislative restrictions on the dog owner’s right freely to exercise control over his dog. Consequently, in the context of a challenge to the Connecticut birth control statute, the dog owner’s rights would ‘come to the Court with a momentum for respect lacking when appeal is made to liberties

48 BIENNIAL REPORT OF

which derive merely from shifting economic arrangements.’"

To be upheld against constitutional challenge, your proposed regulation must be shown to further some legitimate policy. Meyer v. Nebraska, 262 U.S. 390, 399 (1923). If you refer to my earlier comments, it is apparent that there is very little to be gained by mandatory exclusion of Hector who has such wide knowledge of state government and who has, moreover, satisfied the durational occupancy requirements of bureaucratic incumbency. Mandatory exclusion is "too crude a test." Cf. Dunn v. Blumstein, _______ U.S. _________ (1972). It should be apparent to you that an office which has the reputation in some quarters of issuing asinine opinions could benefit from canine ones.

Of course, my opinion would be different with respect to the constitutionality of a finely drawn regulation which excludes, on an individualized basis, dogs of lesser experience, durational status, ability and utility.

For the foregoing reasons, it is my opinion that the regulation you propose would have a doggone good chance of being declared unconstitutional. See Bates v. Cheney, 131 Vt. 1, (Unpublished Op. 197-3).

KIMBERLY B. CHENEY, Attorney General.