- Franklin County Jury Awards $36,475 to James Anderson (Aug. 3, 2016).
On Aug. 3, 2016, a 12-person jury unanimously found in favor of James Anderson on his claims of negligence, willful conversion, and fraudulent concealment in relation to the shooting death of Chucky, his seven-year-old English Springer Spaniel. They awarded over $20,000 for Chucky’s intrinsic value and loss of use to Mr. Anderson, as well as $15,000 emotional distress damages. It is believed that this is the largest jury verdict for the wrongful death of a dog in Washington State. To read more: http://www.tri-cityherald.com/news/local/article94080707.html
- Animal Law Summit II: August 12, 2016. I invite you all to attend the 2nd Annual Animal Law Summit this August 12, 2016 at the WSBA Conference Center, 1325 4th Avenue, Suite 600, Seattle, WA 98101. Webcasting is available. Last year’s first Summit was a tremendous success. This year we have expanded participation to 16 States and British Columbia for an international, cross-jurisdictional, educational experience. Lawyers may obtain 8 CLE credits and attend for $275. Nonlawyers, such as animal control officers, law enforcement officers, paralegals, law students, and rescuers may attend for $100. There is also a free vegan lunch, which received rave reviews last year.
I will be the delegate for Washington and Idaho and provide a trending analysis (among the represented jurisdictions) at the end of the event.Do not also miss the keynote from Ledy Vankavage at Best Friends Animal Society.See brochure here.
City of Payette vicious dog code declared unconstitutional in part (Oct. 19, 2015).
On Oct. 19, 2015, Idaho District Court Magistrate Judge Candy Dale ruled in favor of my clients by declaring procedural aspects of the City of Payette’s dog code unconstitutional in violatingsuch basic rights of a fair opportunity to be heard before government declares a dog vicious or a “pit bull” and then proceeds to banish, confiscate, or euthanize due to such classification. Among other rulings, the court found illegal forcing the dog owner to bear the burden of proving his dog’s innocence. Click here to read decision.
- Breed-discriminatory legislation repealed in Moses Lake, Wash. (Sept. 27, 2011).On Sept. 27, 2011, the City of Moses Lake unanimously voted to repeal Ch. 6.06 MLMC, its Hazardous Dog law enacted in 2008, on the eve of a deadline for a dispositive motion to be filed by Nicholas Criscuolo in his federal lawsuit against the City for unconstitutionally declaring his black lab mix, Dymond a part “pit bull,” and then failing to provide him with any opportunity to meaningfully contest the unilateral determination by the City’s animal control officer (whose formal education was limited to high school and previously working at a potato processing plant).Mr. Criscuolo alleged that the ordinance, which presumed all dogs that had as an “element” of its breeding so as to be “identifiable” as part American Staffordshire Terrier, American Pit Bull Terrier, Staffordshire Bull Terrier, Rottweiler, or Presa Canario “hazardous” and thereby subject to onerous insurance, restraint, and annual registration fees, failed by both the standard of science in 2011 and the constitutional standard of due process.Thankfully, the City took the path of law and science and repealed the ineffective and illegal ordinance in its entirety. Let us hope other progressive and thoughtful jurisdictions follow suit.
- Pay-to-play regime for dangerous dogs declared unconstitutional (Nov. 29, 2011).In a case of first impression, the Court of Appeals declared unconstitutional Pierce County’s “pay-to-play” procedural framework for dangerous animal appeals. No longer may Pierce County charge $250 for a first-level contested hearing before an auditor’s designee who applies an unconstitutional standard of proof, and then $500 for a de novo second-level contested hearing before the hearing examiner applying an unconstitutional scope of appellate review simply for the dog owner to have the ability to challenge the unilateral determination of animal control deeming her dog dangerous or potentially dangerous.At issue was a Great Pyrenees named Blizzard, alleged to have killed a neighbor’s Pomeranian. Ms. Downey repeatedly professed her dog’s innocence and, finally, a unanimous three-judge appellate panel agreed, reversing with prejudice the designation of Blizzard as dangerous. Click to view the Downey opinion.
- Private animal control agencies covered by Public Records Act (Apr. 24, 2008).On April 24, 2008, Division III of the Court of Appeals publishedClarke v. Tri-Cities Animal Care & Control Shelter, 144 Wash.App. 185 (2008), reversing Franklin County Superior Court Judge Cameron Mitchell in ruling that the privately-run Tri-City Animal Control (“TCAC”) entity was not subject to the Public Disclosure Act. At issue was a request for euthanasia records from TCAC. It rejected the request by saying that it was “not a public agency.” This is not the first time TCAC has refused to produce public records. On September 23, 2005, attorney Mary Mahoney requested all records relating to the seizure of the Correas’ dog. TCAC’s response of September 28, 2005 restated that it was “not a public agency” and had no obligation to produce any records concerning the warrantless search and seizure, impound, potentially dangerous dog designation, and threat of euthanasia concerning a dog picked up by TCAC employees acting as commissioned animal control officers within the city limits of Pasco. On April 1, 2005, Ms. Mahoney submitted another public disclosure request on behalf of Deborah Wegner whose dog was impounded by TCAC and euthanized. On May 11, 2005, TCAC refused to honor her request on the basis that, “We are not a public agency.” The practice of withholding public records from bereaving animal owners is of long duration. On September 13, 2003, Ms. Amara Pimentel’s dog Kilo was declared potentially dangerous by Bruce Young and impounded at TCAC, and later killed. See Pimentel v. Young, Franklin Cy. Sup. Ct. No. 04-2-50598-7. TCAC allegedly rudely and illegally refused an in-person (and later, attorney-drafted) public disclosure request by Ms. Pimentel for written proof that Kilo was killed.Although several procedural issues were raised as to standards and burdens of proof and rights to trial following an unsuccessful show cause hearing, the court resolved the matter strictly on the narrow question of whether the Telford v. Thurston Cy. Bd. of Commrs, 95 Wash.App. 149 (1999) factors applied in favor of regarding TCAC as an “other local public agency.” Clarke held that TCAC, though a private corporation, was the “functional equivalent” to an “other local public agency” and bound by the PDA, largely because of their core governmental function, extent of government funding, and degree of government control over daily operations. Particularly, their ability to exercise powers of compulsion, thereby implicating constitutional rights with the seizing and killing people’s dogs and cats, was of some moment.This decision will impact all humane societies and privately-contracted animal control agencies in the State of Washington who take on substantial delegated tasks of animal control care and enforcement and receive the lion’s share of their funding from public monies. Click to view Clarke opinion.
- New cause of action for Malicious Injury to a Pet (May 26, 2006)On July 20, 2003, Jason Brumback, Rusty Von Rardon, and Jayson Anderson took Max, a feline cared for by Spokane resident Bernadette Womack, to Centennial Middle School, doused him in gasoline, and then set him on fire. Good Samaritans rescued him but not before he suffered extensive burns. His dire injuries resulted in euthanasia.A lawsuit filed October 23, 2003 claimed that minor adults Jason Brumback and Rusty Von Rardon maliciously tortured Max Womack. Both minors were found guilty of first-degree animal cruelty in September 2003 and ordered to perform community service at an animal control facility in Spokane County. Neither SpokAnimal nor SCRAPS agreed to permit them to serve time with their operations. The lawsuit also named Bonnie Mastain Rardon, mother to Rusty Von Rardon, and Donald G. Brumback and Susan L. Brumback, parents to Jason Brumback for negligent supervision of their sons.Although it was originally believed that Brumback and Von Rardon acted alone, through discovery, Jason Brumback admitted that a third person, young adult Jayson Anderson, participated in abducting Max from Ms. Womack’s property and attempting to torture him at Centennial Middle School. Based on this revelation, Ms. Womack amended the complaint to name Jayson Anderson as a co-defendant.The Brumbacks and Ms. Womack settled out of court, but Ms. Womack obtained a default judgment against the remaining defendants.Spokane Superior Court Judge Jerome Leveque awarded Ms. Womack $5000 for the value of Max and her emotional distress. He dismissed various claims, including one for outrage.On May 16, 2005, Ms. Womack appealed Judge Leveque’s ruling to the Court of Appeals, claiming that the court erred in several respects.
In this published opinion, the Court of Appeals said the following:
“For the first time in Washington, we hold malicious injury to a pet can support a claim for, and be considered a factor in measuring a person’s emotional distress damages. The damages are consistent with actual and intrinsic value concepts as found in Pickford because, depending upon the particular case facts, harm may be caused to a person’s emotional well-being by malicious injury to that person’s pet as personal property. We do not interpret the trial court’s final reference to value as limiting the measure of damages to pet fair market value.”
Here is the direct link to the opinion:Click to view Womack opinion.
One legislative response swiftly emanated from Senator McCaslin’s office. In December 2003, he introduced SB 6105. This juvenile sentencing bill proposed the following whenever felony animal cruelty was charged (1) making decline hearings mandatory and (2) rendering juveniles ineligible for deferred dispositions. Within three months, after a House amendment and substitution in the Senate, the final bill changed the rules for minors who torture mice: (1) the juvenile court may require the offender to submit to a mental health evaluation; (2) the court may order mental health treatment as a condition of community supervision; (3) upon conclusion of the period for the order of deferral, the conviction is nonexpungeable; (4) the seriousness ranking for first-degree animal cruelty increased from C to B, changing the standard range disposition from local sanctions for the first, second, third, or fourth offense (15 – 36 weeks confinement only for fifth offense) to local sanctions only for the first and second offense (with 15 – 36 weeks for the third or fourth offense; and 52 – 65 weeks for the fifth offense). See RCW 13.40.127(9) and RCW 13.40.0357. 2004 c 117 § 2, eff. July 1, 2004.
- Doggie due process secured; no longer innocent till proven guilty (Jan. 23, 2006). Division One of the Washington Court of Appeals reversed the King County Board of Appeals in its upholding King County Animal Control’s decision declaring Maxine, a dog cared for by Peter Mansour of Kirkland, as vicious and ordering her removed from King County within 48 hours. This ruling overrides the practice of King County to presume dog guardians guilty until proven innocent and to hamstring their efforts at defending themselves by preventing them from subpoenaing witnesses or records.The significance of this decision affects all dog owner-guardians in Washington State. Many jurisdictions will declare a dog dangerous and provide the owner with an appeal hearing to contest the allegations, which, if found to be valid by the hearing examiner, could result in a death sentence for the dog. Prior to today’s ruling, at least in King County, your dog could be declared dangerous and ordered confined or removed on threat of euthanasia and, if you contested the charges, your dog would be presumed guilty until proven innocent. After today’s ruling, government must provide dog owners the same due process protections that are afforded speeders. When contesting parking tickets, the burden of proof is on the State to demonstrate by a preponderance of the evidence (more likely than not) that you sped. In your defense, you can subpoena witnesses.But when Mr. Mansour vehemently contested the allegation that his dog killed a cat off his property, he was forced to prove that King County Animal Control acted arbitrarily or capriciously. In other words, the Board of Appeals assumed that King County Animal Control was correct in issuing the order, even though this was the first opportunity for Mr. Mansour to contest these allegations. He was also prevented from subpoenaing witnesses, including critical veterinary records that could have demonstrated that his dog did not kill the cat in question. Furthermore, the notice outlining the offenses with which he and his dog were charged was erroneous in many respects. Click to view Mansour opinion.
Image of Kady, care of Grant F. Hopper.