[ SHOWGSD-L ] SPOKANE, WA: SUPERIOR COURT JUDGE REJECTS CITY'S 'DANGEROUS DOG' Law
- From: "Ginger Cleary" <cleary1414@xxxxxxxxxxx>
- To: "Showgsd-L@Freelists. Org" <showgsd-l@xxxxxxxxxxxxx>
- Date: Sat, 1 Dec 2007 20:33:29 -0500
Ginger Cleary,Rome, GA ww.rihadin.com <http://www.rihadin.com>
The essence of Government is power; and power, lodged as it must be in human
hands, will ever be liable to abuse. ? James Madison
Member GSDCA
Member Sawnee Mtn Kennel Club
GA Director Responsible Dog Owners of the Eastern States.
-----Original Message-----
>
> http://www.spokesmanreview.com/breaking/story.asp?ID=12583
>
>
> Judge: Dog ordinance unconstitutional
> By Bill Morlin
> Staff writer
> December 1, 2007
>
> Video reports
> Watch video: Owners reunited with their dogs
>
>
> Spokane's "dangerous dog" ordinance is unconstitutional because it
denies pet owners the right of due process, a Superior Court judge
ruled Friday in a case that may have far-reaching effects.
>
> As a matter of law, the administrative procedures used in the city
of Spokane regarding "dangerous dog" determinations and appeals from
those rulings violate citizens' due process rights, Judge Robert
Austin said in his ruling.
>
> It came in the case of Patty Schoendorf, a 57-year-old resident of
the city's West Central neighborhood. Her dog, a 1½-year-old boxer
and golden Lab mix named Kenny, and her daughter's 4-year-old border
collie and black Lab mix, Tai, were impounded in mid-August by
SpokAnimal officers working under a city animal control contract.
>
> The ruling suggests the City Council now must correct the legal
issues with its "dangerous dog" ordinance and provide more
constitutional protections to citizens whose animals are picked up
and destroyed, sometimes in a matter of days.
>
> In the current system, dogs tagged as "dangerous" by the city and
its contractor, SpokAnimal, are deemed to be that unless the owner
can prove otherwise - flying in the face of the notion of presumed
innocence.
>
> City Attorney Jim Craven said he would have a comment after reading
the judge's four-page ruling. It's the latest legal setback for the
City Attorney's Office and the City Council, which recently granted a
26-month contract extension to SpokAnimal.
>
> Shortly after the judge released his 4-page ruling, Schoendorf, her
daughter, Emily Kaeding, and their attorneys, Cheryl Mitchell and
Richard Lee, raced to SpokAnimal's facility at 710 N. Napa late
Friday afternoon for a tail-wagging reunion with Kenny and Tai.
>
> They are home this weekend after spending more than three months in
solitary confinement while Schoendorf paid $14 a day and hired a team
of attorneys to keep them from being euthanized. She was only allowed
two visits - sticking her fingers through the chain mesh - after the
court intervened.
>
> "I've been praying for this day for so long," Schoendorf said
Friday afternoon, nervously fondling her dog's leash. SpokAnimal
officials had her spend several minutes signing legal papers before
the dogs could be released.
>
> "I think I'm going to give him a steak bone, even though I can't
afford one after all this," Schoendorf said when asked what she would
do with her dog this evening. Tai, who spends days at Schoendorf's
home, went to another home with Kaeding.
>
> They were being held in the public-restricted "dangerous dog" area -
sort of a doggy death row - where dogs labeled dangerous are
euthanized within 14 days unless their owners pay $98 in advance,
demand a hearing and get a Superior Court restraining order
preventing them from being destroyed.
>
> "Most poor people can't afford to fight the city like this, so they
just lose their dogs," Schoendorf said.
>
> SpokAnimal officers alleged her dogs killed a neighborhood cat in
late July, but Schoendorf says the contract dog catchers grabbed the
wrong black and tan dogs. She said 13 other sets of black and brown
dogs live within a two block radius of her West Central home, but she
wasn't given an opportunity to make that case before a city hearing
examiner.
>
> The judge said the city violated Schoendorf's constitutional rights
by taking her property - her dogs - and intending to destroy them
after a hearing where she wasn't allowed to cross-examine or impeach
witnesses involved in the dogs' impoundment.
>
> She also wasn't given access to documents in the city's "dangerous
dog" file and the opportunity to rebut those allegations - another
denial of due process guaranteed by the Constitution.
>
> The judge not only ordered SpokAnimal to immediately release the
dogs, he ordered the city to pay as-yet undetermined legal bills for
a team of attorneys.
>
> "The attorney fees are going to be pretty healthy in this," said
attorney Robert Caruso, who worked with Lee of his firm and Mitchell,
who specializes in animal rights legal issues.
>
> Mitchell said she has "been fighting" with the city and its
contract that allows SpokAnimal to pick up dogs and label them
dangerous on the spot, even if they have returned home, as Kenny and
Tai had done after someone opened the gate at Schoendorf's home.
>
> Her adult son was there Aug. 16 when SpokAnimal control officers
said they had come to pick up two black and brown dogs, tentatively
described by an 80-year-old man who witnessed a cat mauled by two
dogs in late July. The cat later died.
>
> "They told my son, 'If you don't give us those dogs, we're going to
arrest you and put you in jail,'" so he went in the house and handed
over the two dogs," Schoendorf said. Her third dog, a golden
retriever named Hannah, escaped attention and remained in the home.
>
> After getting off work that day, Schoendorf went to SpokAnimal and
was told she would have to pay $98 in advance - $7 a day for each
dog - to keep them from being euthanized while she filed an appeal
with City Hearing Examiner Greg Smith.
>
> At the informal hearing, witnesses were not given an oath,
Schoendorf said, and she wasn't given a chance to challenge their
version of events, accusing her dogs of killing the cat. There also
were documents given to the hearing examiner by SpokAnimal that she
wasn't allowed to see, she said.
>
> The hearing examiner ruled her pets were "dangerous dogs" and said
they could be returned to Schoendorf and her daughter only if they
posted a $100,000 bond per animal, had them wear muzzles any time
they were outside, and built a special concrete-floor outdoor kennel
posted with "dangerous dogs" signs.
>
> After lining up Mitchell and Caruso's law firm, where she works as
a paralegal, Schoendorf instructed the lawyers to get a restraining
order to prevent SpokAnimal from euthanizing her dogs while she
appealed the hearing examiner's dangerous dog ruling to Superior
Court.
>
> Mitchell drafted the legal papers, asking the judge to declare the
city's dangerous dog ordinance - part of the Spokane Municipal Code -
unconstitutional.
>
> "I'm absolutely delighted," Mitchell said of the ruling. "Finally,
a judge has told them - the city and SpokAnimal - they have to have
rules and follow the Constitution."
>
> The judge said dogs clearly are property, so a government agency
must comply with due process provisions of the Constitution when
seizing animals.
>
> The judge said the city and SpokAnimal failed to identify
a "standard of proof" - the legal criteria - in labeling dangerous
dogs.
>
> "Similarly, in this case, the appellant (Schoendorf) was at no time
during the hearing allowed to cross-examine the witnesses testifying
against them," Austin said. "In addition, the appellant was not
given, prior to the hearing, certain documents used in the hearing."
>
> Furthermore, the judge said, instead of a presumption of innocence
that accompanies most legal proceedings, the burden of proof shifted
to Schoendorf to prove her dogs weren't the dangerous dogs
responsible for the cat's death.
>
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