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Pet store owner loses bid to get animals back

The pets in the Pitter Patter Pet Store court case have run up a bill of $73,000 that could grow, but they will not be returned to their owner — at least not yet.

Judge Matthew Brown of the 7th Judicial Circuit in Rapid City ruled Friday that nearly 100 pets confiscated by Rapid City animal control, including a personal Golden-Shepherd mix, will remain in the custody of the city at the Black Hills Humane Society and Reptile Gardens.

Marinda Parks' attorney filed a motion on Nov. 6 arguing many animals are no longer part of any criminal proceeding and that she wanted to avoid adding to the steep kennel and vet fees that already exceed $73,000.

Judge Matthew Brown, while not persuaded by the fees — calling them "alleged" — did appear sympathetic to the city's protestations against returning animals to someone being prosecuted for inhumane treatment of animals.

"Returning the animals at this time would be improper," Judge Brown said, denying Parks' motion.

The judge also tentatively set a trial date for the middle of February, which according to statements made by Assistant City Attorney Kinsley Groote will likely include "living evidence" as the city brings in animals seized in the August raid of Pitter Patter Pet Store. 

"I want to show a jury what those animals looked like versus how they look now," Groote told Judge Brown.

In Friday's hearing, Timothy Rensch and Groote debated who should monitor the animals seized in August from the ill-fated Pitter Patter Pet Store on the 2400 block of Mount Rushmore Road and raised new facts in the case. Photographs of underfed dogs and feces and vomit-splattered kennels at Parks' Meade County home and veterinarians' reports of the seized animals detailed rampant illnesses, including roundworm, potentially lethal cases of distemper, and even giardia, a sickness developed from coming into contact with feces, among the dogs, cats and other animals.

Rensch argued that the city should return all animals no longer part of any prosecution, including Parks' pet.

But the city objected, arguing the high cost of impounding and caring for the animals is justified, given the neglected state of the animals upon seizure.

On Aug. 16, three animal control officers seized 132 animals from Pitter Patter Pet Store, including 36 dead animals (mostly fish). The store, under ownership from Parks, was in the process of opening up after moving from the Rushmore Mall. The city initially charged Parks with over 200 violations of city code over the health and welfare of 102 animals, including fish, reptiles, rodents and a chinchilla. The total of counts now stands at just over 50 concerning 27 animals, including one count of running an unclean and unwholesome kennel.

Parks' attorney disputed the city's claims as "contradictory." "You can't have pee without water," said Rensch. "There can't be poop there without any food."

Investigators with Pennington County Animal Control issued reports in September from the August raid detailing turtles swimming through feces-filled aquariums, puppies shivering in a koi pond, and multiple makeshift kennels for kittens and puppies without any immediate access to food or water.

The city, meanwhile, said staff with the Black Hills Humane Society has worked around the clock to provide care and rehabilitation to the dozens of animals. A veterinarian's report goes into immense detail, showing that many of the animals have grown anti-social, including a hamster.

"Will bite," read the report filed with the 7th Judicial Circuit.

An affidavit included in court filings from a former Pitter Patter employee alleges Parks kept a "reject room" at her Meade County home where more than 100 rodents were sent when Parks could no longer feed them or pay medical bills. Documents from law enforcement officials in Meade County also reveal that in the days prior to when authorities raided the Pitter Patter Pet Store, an officer responded to a complaint to Parks' home and found five underfed Husky dogs.

"There was also a strong stench smell throughout the house because of everything that she has going on in the residence," an officer wrote in an incident report entered into the court filing.

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Alienation of affection hotly debated in SD

Under the tenets of ancient English common law, when wives were legally considered the property of their husbands, a jilted husband could sue any man who deliberately broke up his marriage and stole his wife.

Even as centuries have passed, and society has generally done away with the notion of wives as property, South Dakota has kept a version of that civil law on the books.

The state is one of only seven states to retain the civil action known as "alienation of affection.”

One element of the tort was argued before the South Dakota Supreme Court in October, though that case is unlikely to result in removal of the law in the state.

Meanwhile, a long-term controversy continues to rage in the South Dakota legal and legislative communities over whether the law is an appropriate way to resolve disputes over third-party involvement in breaking up a marriage and if financial damages should be rewarded as a result.

Cases typically surround marriages between well-heeled individuals who are worth suing when an affair occurs and a marriage ends.

A man was awarded $950,000 in a 2002 case in which a South Dakota jury ruled that an orthopedic surgeon from Las Vegas had enticed the man’s wife into an affair and had broken up their marriage. The judgment was later reduced to $400,000.

A small number of alienation cases remain active in the state. The tort language was expanded to be gender-neutral by the state Legislature in 2002 by allowing women to sue another woman for a break-up.

Opponents of the alienation tort argue that it treats people as a commodity, puts a price tag on an emotion, and leads to humiliating public revelations of infidelity that can harm the adults and children involved far beyond the impact of a typical divorce proceeding.

Roger Baron, a professor emeritus in the University of South Dakota Law School, said the alienation tort is unnecessary because divorce laws already enable fault to be determined and financial remedies to be assessed.

“It’s kind of a mess, and it continues to be a mess,” said Baron, author of “Cases and Materials on Family Law for the South Dakota Lawyer.” “Just because something bad has happened to someone in life doesn’t mean you have a cause to sue for it. It’s not saying we’re not sympathetic to you, but it’s not something you should be able to file a lawsuit over.”

That view is countered by experts who argue that marriage is a legal contract like any other agreement that can be broken and lead to damages when someone interferes. Some experts say alienation lawsuits are comparable to any malpractice or civil injury suit in which the actions of a person cause pain, suffering and financial loss to another.

Sioux Falls attorney Robert Christenson says alienation cases can be handled with dignity and serve as a way for a spouse whose marriage is broken up to be compensated financially for loss of love, companionship and an expectation of earnings.

“When you get in a car accident driving home and you have pain and suffering and emotionally you can’t deal with the pain, that’s no different than this,” he said. “In our system we compensate for loss with money. We’re not compensating for a person, we’re compensating for a relationship, a feeling of love and affection that is taken.”

Tough to prove

Alienation of affection is part of a group of English common law civil remedies known as “heart balm” laws, which include suing over violating a promise to marry or for “criminal conversation” in which a man could sue any other man who had sex with his wife.

“The rationale is that your heart is broken, and there’s a balm you can put on that to soothe it and the money is the balm,” Baron said.

Most of those torts have been stricken from state and federal laws, but alienation has been retained in South Dakota, Hawaii, Illinois, Mississippi, New Mexico, North Carolina and Utah.

The South Dakota alienation law is contained within Title 20, a section known as Personal Rights and Obligations. The law, 20-9-7, includes language forbidding “abduction or enticement” of a husband from his wife or a wife from her husband. The language specific to alienation forbids the “seduction of a wife, daughter or orphan sister,” and the new language added in 2002 which now forbids “the seduction of a husband, son or orphan brother.”

The text regarding children, Baron said, applies to rare instances where one parent may seek remedies from the other parent who turns a child against them or physically removes them from the relationship.

The three main elements that must be proven in an alienation case are that the marriage in question contained a degree of love or affection prior to the outside affair; that the affair alienated or destroyed that love or affection; and that the defendant’s malicious conduct contributed to or caused the loss of affection or love.

Jonathan Van Patten, a professor in the USD Law School who represented clients in alienation cases when he was in private practice, said the law essentially requires a plaintiff to show that someone who had an affair with a married person exploited a situation and “intentionally set out to” to break up or disrupt a happy marriage.

“It’s not like if someone who’s married has an affair you can get sued, because the requirements are much higher than that,” Van Patten said. “You’ve really got to have a smoking gun.”

Christenson said it’s possible that someone could be sued for alienation of affection even if they never had sex with the married person but instead somehow turned one spouse emotionally away from the other.

Supreme Court cases

The South Dakota Supreme Court has been the final stop for several alienation of affection cases.

One element of alienation of affection was argued before the state Supreme Court in October. In the 2017 case of Cedar versus Johnson, a man in Frederick argued that his wife was stolen from him by the owner of the bar where she worked, ultimately breaking up his marriage and leading to divorce. A trial judge dismissed the case.

The judge ruled that by not placing a firm financial value on his loss, the plaintiff did not make a case for damages, and he threw out the case. The Supreme Court justices were asked in an appeal by the plaintiff’s attorney to rule on whether the plaintiff or his attorney had a legal obligation to set a value on the woman’s affection, rather than simply allowing the jury to decide the financial value of the affection or the marriage. A ruling is expected in the coming months.

In a high-profile case in Rapid City in 2012, the Pennington County state’s attorney at the time, Glenn Brenner, was sued by a man who claimed that Brenner engaged in a sexual affair with the man’s wife and had alienated her affection. The case went to the Supreme Court before being sent back to a lower court for trial.

During the legal proceedings, media coverage revealed highly personal accounts of Brenner’s relationship with the woman as well as details of her former marriage to the plaintiff. Court documents and media accounts highlighted conversations the woman and her former husband had with a marriage counselor as part of a debate over whether the marriage was void of affection prior to her relationship with Brenner.

Reached in Texas, where he is now in private practice, Brenner did not want to comment on the case except to note that the trial judge threw out the alienation claim and ruled in Brenner’s favor. He also noted that he is still married to the woman involved in the case.

On the books to stay?

Former state Sen. Stan Adelstein, of Rapid City, tried twice during his long legislative career to strike the alienation language from South Dakota law.

“It’s a ridiculous law; the concept of putting a value on a woman,” Adelstein, 87, said at the office of his engineering firm in Rapid City. “The concept that you’re going to get a certain payment for this woman to decide who she loves, and then decide what she’s worth?”

Baron said it appears as though the both the judiciary and the legislative branches of South Dakota government do not have the fortitude to abolish the alienation tort because on a base level it enables punishment for adultery.

“Both of them want it to be gone but neither of them is willing to bite the bullet and do it,” he said.

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Wife pleads guilty to killing Pine Ridge police officer

The wife of Pine Ridge police officer Brian Garrett pleaded guilty Friday to shooting him to death in February.

Tiffany Janis, 30, was tear-stained as she stood to admit guilt on two counts — second-degree homicide and discharging a weapon in commission of a crime.

Magistrate Judge Daneta Wollman will recommend the guilty pleas, which arrived after an agreement was reached with federal prosecutors that could see Janis serving back-to-back 10-year prison sentences.

"It's not enough, if you ask me," said Kalo Garrett, son of the slain officer. "He sacrificed his life to serve his people and taught me more than I'll ever be able to pay back to him. But she'll get to walk again."

Brian Garrett's sisters wore beadwork earrings with pictures of the veteran Oglala Sioux Tribe public safety officer. 

"He was such a character," Tudy Pierce said. "He would say anything to anybody. That's just who he was."

Earlier in Judge Wollman's courtroom, the sisters wiped their eyes as Janis admitted to shooting their brother. On Feb. 10 at 4 a.m. in Kyle, Janis called tribal police to tell them she'd shot one of their own.

Janis told the FBI that Garrett had kicked her out of the house after an argument. After climbing into her truck, she grabbed and chambered her gun and headed back inside.

"She should've just kept going," Kalo said. "None of us would be here right now."

According to court documents, when Janis reached the house she saw her cousin and husband having sex. The affidavit says Garrett confronted Janis, but his wife retrieved her gun from her coat pocket and shot him once in the chest.

Emergency responders were unable to revive him. Garrett was declared dead after transportation via a medical helicopter. 

During the plea, Janis' attorney, Jenn Albertson, rubbed her client's shoulder, whispering, "It's OK." But the victim's sister, Sonia Garrett, says it's unfair.

"She stands up there and cries, but what about us? We never get to see him again," she said.

"It should be for life," said Debbie Nearing, a third sister.

U.S. District Court Chief Judge Jeffrey Viken will have final say on sentencing. Following the plea agreement, a pre-sentencing report will be compiled that provides guidelines for sentencing. Members of Garrett's family said they were told to expect a sentence by March.

Garrett was off-duty when he was killed. Janis had two children with Garrett. Garrett's two adult children said they hope the judge exceeds the sentencing guidelines for Janis.

"She's no relation to us," said Kalo, who wore a blue "End of Watch" T-shirt bearing his father's final day (Feb. 10) on the chest.