E-FILED 2016 DEC 30 6:53 AM POLK - CLERK OF DISTRICT COURT

fIN THE IOWA DISTRICT COURT IN AND FOR POLK COUNTY

MACKENZIE RUMSEY and BELA
ANIMAL LEAGUE DEFENSE AND
RESCUE,
Plaintiffs,
v.

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CITY OF DES MOINES, IOWA and

ANIMAL RESCUE LEAGUE OF
IOWA, INC.,
Defendants.

NO. EQCE078795

RULING ON PETITION
FOR WRIT OF CERTIORARI

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The above matter came on for hearing before the undersigned on the 16th day of
December, 2016 on the Petition for Writ of Certiorari filed by Plaintiffs. Plaintiffs
appeared by their attorneys, Jaysen McCleary (appearing by phone) and Cami Eslick
and the City of Des Moines appeared by Assistant City Attorney Michelle MackelWiederanders.
The Petition before the Court seeks review of a decision by an Administrative
hearing officer finding Malice, a dog then owned by Rumsey, to be a dangerous animal
under the Des Moines city ordinance.1
Malice was originally declared to be a dangerous dog pursuant to Des Moines
City Ordinance 18-196 on March 18, 2015. Rumsey timely requested a hearing as to
the declaration. In response to Rumseys request, a hearing was scheduled before an
Administrative Hearing Officer, Jeremy Whitaker, for March 26, 2015 at 10:00 a.m.
Rumsey appeared at the scheduled administrative hearing. At the outset of the
hearing Rumseys request for a postponement, to give her time to prepare for the
hearing, was rejected. Following presentation of evidence, the hearing officer entered
an Order upholding the dangerous dog declaration.
1

Des Moines City Code, Section 18-196. Subsequent to impoundment, ownership of Malice was allegedly
transferred to Bela Animal League Defense and Rescue.

E-FILED 2016 DEC 30 6:53 AM POLK - CLERK OF DISTRICT COURT

Rumsey appealed the dangerous dog determination made by the hearing officer
to District Court. Following hearing the District Court reversed the determination and
remanded the matter to an Administrative Law Judge for a second hearing.2
A second administrative hearing, conducted by the same administrative hearing
officer, was held on August 12, 2015 with both Rumsey and her attorney present.
Following the hearing the hearing officer issued a second decision, again upholding the
determination Malice is a dangerous dog within the meaning of the Des Moines City
Ordinances. In particular, the hearing officer determined the evidence established
Malice had attacked other dogs on three or more separate occasions within the lifetime
of the attacking animal. The instant proceeding was filed in response to the second
ruling.
The record at the second hearing revealed Des Moines city animal control
officers began their investigation of this case following a Crime Alert call. The caller
alerted officers Rumsey had made Face Book postings related to Malice, indicating
Malice had attacked another dog in the household (and had done so on prior occasions)
and indicating fear for her other animals as well as her children. The caller subsequently
e-mailed photos of the Facebook postings to the officers.
In the postings Rumsey stated, among other things, my dog Malice tried to kill
my dog Dayton twice; Malice has killed multiple animals and tried to kill more; and
this behavior could lead to increasing aggressive displays and put my kids in danger.
In response to the call, on March 13, 2015 Animal Control Officer Tina Updegrove
went to Rumseys home. Upon arrival at the residence Updegrove observed blood on
the walls of the home. Rumsey informed Updegrove she believed Malice had attacked
another dog in the household, Sash. Updegrove observed puncture wounds on the
head, neck and ears of Sash, who was lying on the floor covered in a blanket.
2

Polk Co. CVCV049602, Ruling, Honorable Eliza Ovrom, filed August 4, 2015

E-FILED 2016 DEC 30 6:53 AM POLK - CLERK OF DISTRICT COURT

Updegrove also observed Malice, who had been segregated in a bathroom. Malice also
had bite marks on his head and ear.
During her conversation with Updegrove Rumsey confirmed the information
posted on her Facebook page that prompted the investigation. She told Updegrove
Malice was the aggressor in the fight with Sash. She also acknowledged Malice has
been the aggressor in multiple fights with her other dogs in the past. Based on the
information provided by Rumsey, and because she was concerned as to additional
conflict between Malice and Sash, Updegrove impounded Malice and delivered her to
the Animal Rescue League. Though her attorney argues otherwise, evidence before the
hearing officer establishes Rumsey consented to the impoundment and herself placed
Malice in the animal control officers vehicle.
On March 18, 2016 Chief Animal Control Officer Sergeant Butler met with
Rumsey and informed her he had determined from his investigation Malice was a
dangerous animal within the meaning of the Des Moines city ordinance. Rumsey
timely filed an appeal related to this finding.
Rumsey indicated in a March 24, 2015 letter related to her appeal from the
dangerous dog declaration, that when she made the Facebook postings she was
experiencing a manic episode, where I posted exaggerated and untrue stories about
my dog.3 Facebook postings made by Rumsey in the days following the dog fight also
indicate she was not accurate in the original postings, but that the postings were made
when she was suffering the effects of a traumatic event. The later postings state Malice
was not previously the aggressor in any fights with other dogs in the household. During
her testimony at the second hearing she denied any present recollection of the content
of many of her initial postings.

See Citys Partial Return, CIR Butler (1 of 3), filed October 19, 2015

E-FILED 2016 DEC 30 6:53 AM POLK - CLERK OF DISTRICT COURT

Evidence presented by Rumseys mental health therapist, Jami Lacona,

corroborated her contention the initial postings were inaccurate. Lacona stated in a
letter presented at the hearing that Rumsey experiences intense psychological stress
and panic attacks when she feels afraid or a loss of control.
In addition to the letter by Lacona, at the hearing counsel for Rumsey attempted
to introduce into evidence a report authored by Maria Sonnack, a board certified
physicians assistant in psychiatry at Broadlawns Medical Center.4 In the report, dated
July 24, 2015, Sonnack states she is familiar with Rumseys psychiatric history which
includes post-traumatic stress disorder (PTSD), bi-polar disorder, depression and
attention deficit hyperactivity disorder (ADHD). She also states at the time of the dog
fight, when Rumsey made the initial Facebook postings and statements to the animal
control officer, Rumsey was not taking her prescribed psychotropic medication.
Sonnack states in her report she reviewed the initial Facebook posts made by
Rumsey and believes
[w]ithin a reasonable degree of medial certainty Mackenzie Rumsey was
experiencing a manic or hypomanic episode, and/or dissociating, as
related to her past trauma and diagnosis of PTSD, at the time she wrote
these posts. After thoroughly reviewing the Facebook posts I believe Ms.
Rumsey was using poor judgment at the time the posts were made, as a
result of her mental illnesses.
Sonnack also stated in her report it is common for individuals who say or do things while
in a manic or hypomanic state they would normally not say or do, to later not recall their
statements or actions, thus confirming Rumseys testimony at the hearing that she could
not remember the posts.

See Hearing Tr., p. 95 et seq. At the hearing Plaintiffs counsel erroneously referred to Sonnack as a
psychiatrist when, in fact, she is a physicians assistant in psychiatry. At the time of the offer the City
objected on the basis of hearsay. The record is unclear how the Judge ruled on the offer or objection.
Despite the offer made by Plaintiffs counsel, however, Sonnacks report does not appear in the return filed
by the City. Neither is it referred to in the hearing officers decision. A copy of the report appears in
CVCV049602 as an attachment labeled Medical Report to the Plaintiffs motion for summary judgment
filed on July 27, 2015.

E-FILED 2016 DEC 30 6:53 AM POLK - CLERK OF DISTRICT COURT

Other testimony at the hearing also specifically contradicted the suggestion in the
postings that Malice had been the aggressor in previous fights. Veterinary records
identify Malice as the dog attacked by Dayton in the past, not as the attacker. The
records for treatment provided to both Dayton and Malice in December, 20105, indicate
Malice was attacked by the other dog in the house.
A veterinarian, Dr. Neil Hovick, whose testimony was taken by deposition and
introduced as evidence at the hearing, opines the veterinary records in evidence
definitely indicate Malice was not the aggressor in either of the prior dog fights in the
household. He also testified breeds of the same type as Malice, perhaps a pitbull breed
although not for sure6, are not anymore inherently dangerous than any other dog
breed.
Mindi Blaseburg, Rumseys mother, also testified at the hearing. She testified
she personally witnessed, from the outset, each of the two incidents described in the
veterinary records related to fights between Malice and Dayton. She testified that in
both of the fights Dayton, not Malice, was the instigator and initial aggressor.
Plaintiffs have repeatedly and persistently challenged whether or not the
Facebook postings made by Rumsey were appropriately considered by the hearing
officer.7 The Facebook postings were included as attachments to the police report
prepared in connection with the investigation. Throughout the hearing McCleary
objected to evidence of the police report prepared in connection with the incident.8
Contrary to Plaintiffs arguments, hearsay evidence is generally admissible at
administrative hearings and may make up the substantial evidence needed to affirm an
5

The record from December, 2009 reflects a dogfight with housemate but do not identify which dog was
the aggressor.
6
Dr. Hovick testified without genetic testing it is impossible to accurately identify a particular breed.
7
The Honorable Eliza Ovrom ruled on December 28, 2015 the Facebook posts were properly included in
the Citys return.
8
McClearys hearsay objections properly identified the police reports as inadmissible hearsay. Rule
5.803(8)(B)(i). The hearing officer overruled the objection, noting the report was an official city
document.

E-FILED 2016 DEC 30 6:53 AM POLK - CLERK OF DISTRICT COURT

administrative decision.9 In such cases, agency findings shall be based upon the kind
of evidence on which reasonably prudent persons are accustomed to rely for the
conduct of their serious affairs, and may be based upon such evidence even if it would
be inadmissible in a jury trial.10 Thus, the police report, itself, could properly be
considered by the administrative hearing officer despite its nature as hearsay.11
Plaintiffs have contended in numerous pleadings, and in e-mails, even if they are
admissible, the Facebook postings were not actually introduced into evidence at the
second administrative hearing. While the postings were not provided to the hearing
officer on the day of the hearing, the transcript makes it clear that copies of the
Facebook postings were provided to both McCleary and the hearing officer, as a part of
the police reports, following the hearing.12 The record also makes it clear the Facebook
postings were intended by the City to be a part of the record.
Simply because the Facebook postings were appropriately offered by the City,
however, does not mean the postings were appropriately admitted and considered by
the hearing officer. A number of Courts have considered the admissibility, over
objection, of Facebook postings. Certainly they are not admissible as business records
exceptions to the hearsay rule requiring no extrinsic evidence for authentication. As one
court noted, simply confirming Facebook posts were made is no more sufficient to
confirm the accuracy or reliability of the contents of the Facebook chats than a postal
receipt would be to attest to the accuracy or reliability of the contents of the enclosed
mailed letter.13
9

Gaskey v. Iowa Dept. of Transp., 537 N.W.2d 695, 698 (Iowa 1995); McConnell v. Iowa Dept. of Job
Serv., 327 N.W.2d 234, 237 (Iowa 1982)
10
Iowa Code 17A.14(1)
11
It is interesting the hearing officer admitted the police reports over Plaintiffs hearsay objection, while
apparently not considering the Maria Sonnack report offered by Plaintiff based on the Citys hearsay
objection.
12
Hearing Tr. p. 19
13
United States v. Browne, 834 F.3d 403, 411 (3rd Cir. 2016) citing United States v. Jackson, 208 F.3d 633,
637-38 (7th Cir. 2000)

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Instead, the proponent of Facebook chat logs is required to offer extrinsic

evidence to establish their authenticity.14 Under the Iowa Rules of Evidence
authentication for purposes of admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.15
In this case there is extrinsic evidence justifying admission of the Facebook posts
made by Rumsey. Rumsey does not specifically deny making the posts. Furthermore,
she made statements mirroring the posts to the animal control officer shortly after the
posts were made. Finally, a letter from her mother confirmed Rumsey made the posts.
The Court concludes there is adequate extrinsic evidence the Facebook posts were
actually made by Ramsey in the hours following the dog fight. In light of the relaxed
rules of evidence applying to administrative hearings, as well as the extrinsic evidence
indicating the postings were made by Rumsey, the Court concludes the Facebook
postings were appropriately considered by the hearing officer.
That the posts are admissible, however, does not necessarily mean they are
reliable. This is particularly important in this case because the Facebook posts and
statements made by Rumsey in the hours following the fight between her pets are the
only evidence justifying the conclusion Malice attacked other dogs on three or more
separate occasions within the lifetime of the attacking animal.16
The findings of the hearing officer carry the effect of a jury verdict; they should be
overturned only if, following a review of the record as a whole, substantial evidence does
not support them.17 In evaluating the decision under review it is necessary to consider
all of the evidence in the record that detracts from the decision as well as all of the

14

Browne, supra, citing Federal Rule of Evidence 901(a)

Rule 5.901(a)
16
In a Partial Return on Writ of Certiorari (in reality responses to requests for admissions) filed by the City
on October 2, 2015 in CVCV049602 the City effectively admits the Facebook postings and statements by
Rumsey are the only evidence establishing two prior attacks by Malice.
17
Iowa Code 17A.19(8)(f); Sierra v. Employment Appeal Bd., 508 N.W.2d 719, 720 (Iowa 1993)
15

E-FILED 2016 DEC 30 6:53 AM POLK - CLERK OF DISTRICT COURT

evidence that supports it.18 Evidence is considered to be substantial if a reasonable

mind would find it sufficient to reach the conclusion at issue.19 Simply because a
contrary decision could be reached from the evidence presented does not mean there
was not substantial evidence.20
In evaluating whether there is substantial evidence in the record to support the
hearing officers decision it is crucial to keep in mind what the City had to prove to
establish Malice was a dangerous animal within the meaning of the Des Moines City
Ordinance. The definition requires the City to establish Malice attacked another
domestic animal on three or more separate occasions during his lifetime.21
In the decision made following the first administrative hearing the hearing officer
noted [t]here has never been any indication that the information posted to Facebook of
her own free will over the course of several hours is inaccurate. In his decision
following the second administrative hearing the hearing officer noted the evidence left
him with two contradictory narratives. Even after recognizing he was left with
contradictory narratives, however, following the second hearing the hearing officer
observed: nothing presented in either hearing negates the fact that Ms. Rumsey freely
confessed online that her dog had a long history of aggression which she confirmed to a
known animal control officer.22 In reaching this conclusion the hearing officer ignored
competent and persuasive evidence, from Rumsey, from the veterinary records, from the

18

Cedar Rapids Comm. School Dist. v. Pease, 807 N.W.2d 839, 845 (Iowa 2011); Iowa Code
17A.19(10)(f)
19
Suluki v. Employment Appeal Bd., 508 N.W.2d 402, 404 (Iowa 1993)
20
Reed v. Iowa Dept. of Transp., 478 N.W.2d 844, 846 (Iowa 1991)
21
Plaintiffs counsel suggested at argument the attack must be unprovoked. In fact, the term
unprovoked is used in the ordinance only in the portion of the ordinance dealing with an animal running
at large which has bitten or clawed a person. While the term unprovoked is not included in the portion of
the ordinance dealing with attacks on other domestic animals, the use of the term attacked, by itself,
implies a need to show the attacking animal was the aggressor.
22
Plaintiffs counsel argued the hearing officer made his mind up following the first hearing and was
unwilling to reach a contrary decision at the second hearing. The hearing officers reference to either
hearing seems to support this argument.

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veterinarian, from Rumseys mother, from the therapist, and from the physicians
assistant, indicating the Facebook posts were not accurate.23
The only evidence in the record to suggest Malice was the attacker in three
lifetime incidents was Rumseys initial Facebook posts and her statements to the animal
control officer who came to investigate. The overwhelming evidence presented at the
hearing, however, establishes neither the Facebook posts nor Rumseys oral statements
immediately after the event were accurate.
Furthermore, in reality, the Facebook posts do not establish two prior attacks by
Malice. While Rumsey stated in the posts Malice tried to kill my dog Dayton twice, she
does not indicate in the posts whether Malice was the attacker or aggressor, or whether
Dayton initiated the encounter and was simply over-powered by Malice during the fight.24
The statutory language chosen by the City makes it clear the three lifetime attacks
must be fights initiated by the dog in question, and does not include fights initiated by
other dogs.
In reaching his decision the hearing officer ignored credible evidence explaining
the inaccuracy of the Facebook posts and statements made by Rumsey to the animal
control officer. When the record is reviewed, as a whole, substantial evidence fails to
support the conclusion that Malice has on at least three separate occasions, been the
aggressor in attacks on other domestic animals. Accordingly, the Petition for Writ of
Certiorari must be sustained.
IT IS THEREFORE ORDERED the Petition for Writ of Certiorari is hereby
sustained. The decision of the Hearing Officer dated August 12, 2015 declaring Malice
to be a dangerous animal within the meaning of Des Moines City Ordinance Sec. 18-

23

In his decision the hearing officer makes absolutely no reference to the reports authored by the therapist,
or the physicians assistant.
24
This Court is aware the animal control officer, Tina Updegrove, testified at the hearing that Rumsey told
her Malice had twice previously attacked Dayton.

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196 is hereby reversed and set aside. The City of Des Moines shall immediately release
and return Malice to the Plaintiffs. Costs related to the Petition for Writ of Certiorari are
hereby assessed against the City of Des Moines.

E-FILED 2016 DEC 30 6:53 AM POLK - CLERK OF DISTRICT COURT

State of Iowa Courts

Type:

OTHER ORDER

Case Number
EQCE078795

Case Title
MACKENZIE RUMSEY VS CITY DES MOINES AND ARL
So Ordered

Electronically signed on 2016-12-30 06:53:26

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