Procedural Due Process
- Created on 05 June 2010
- Last Updated on 26 May 2014
- Written by Fred M. Kray
- Hits: 1714
Procedural Due Process
Procedural due process is an issue in virtually every Dangerous Dog case. Generally, the operative dangerous dog law is a county or city ordinance. The initial fact finding body is a board (Marion County), general magistrate (Broward County) or animal control itself (Clay County). There are usually no rules of evidence in these "informal" hearings, and that is what was intended. In most cases, after this less than fair procedure, you find yourself on appeal with a terrible record, with the lowest standard of proof. The "appeal" is an inquiry in whether there was substantial and competent evidence to support the dangerous dog finding. This is a tremendously difficult burden to overcome. In Marion County, despite thousands of dollars spent by dog owner/guardians, I could not find one instance where the dangerous dog finding was reversed on appeal.
Dangerous Dog Procedural Due Process Case Law
Philips v. San Luis Obsido County Department of Animal Regulation, 183 Cal. App. 3d 372 (Cal. App. 1986) - Held that the ordinance must provide for notice and a hearing before the dog can be adjudicated vicious.
Colorado Dog Fanciers v. City and County of Denver, 820 P.2d 644 (S.Ct. Colo 1991) - This case involved the constitutionality of Denver's Pit Bull Ordinance, but has three very important holdings: 1) The burden of persuasion (going forward with the evidence) at the initial fact finding hearing is on the government, not the dog owner and 2) owners must be apprised of the standard of proof necessary to prevail at the hearing and 3) that in a civil setting, the burden of proof shall be a preponderance of evidence.
Roberts v. Kent County SPCA, 2010 WL 2513424 (Del. Comm. Pl. 2010) - The court reversed a euthanasia decision because the panel's decision did not specify the reasons for choosing euthanasia, the panel received and considered letters outside the record mailed to the panel that the owner had no opportunity to respond to and further were hearsay. While the rules of evidence do not apply to the panel, that is not a license to introduce irrelevant evidence outside of the record. The consideration of such evidence was so pervasive it was found to be a violation of fundamental due process.
Florida State Constitution Art 1 § 9 - No person shall be deprived of life, liberty, or property without due process of law.
Van Patten v. City of Binghamton, 137 F. Supp.2d 98 (U.S.D.C. 2001) - The court reversed a dangerous dog determination in which a dog was euthanized after an adverse decision without giving the owner a realistic time to appeal. The law itself was not deficient, but the way it was executed in the case was. The court held that the owner was deprived of due process because: 1) the hearing was not held by the Mayor or his designee as stated in the code; 2) the hearing officer's order determining the dog was dangerous did not state the reasons supporting hs determination; and 3) by executing the dog the same day they received the hearing officer's order, the owner was deprived of his right to appeal.
Ohio v. Cowan, 103 Ohio St. 3rd 144 (S.Ct. 2004) - Supreme Court of Ohio held that the state law regulating dogs was unconstitutional and deprived Cowan of her due process rights. The state law provided no opportunity to be heard prior to her property rights being substantially affected, the warden had unfettered discretion to label Cown's dogs vicious, and there was no mechanism for appealing that determination.
Schoendorf v. City of Spokane, Case No. 2007-02-03992 - The court questions the boarding fee payment in advance before the hearing occurs, saying it raises "serious concerns about whether enough due process is provided." The court reversed the dangerous dog classification because 1) there were no published regulations and there was nothing in the record of the hearing provided or any mention of what standard of proof was required, despite the hearing examiner's statement that a preponderance is what he used; 2) the owner was not allowed to cross-examine witnesses as the hearing; 3) the owner was not given copies before the hearing of documents used in the hearing examiner's decision; 3) the Spokane code does not guarantee any of the Mansour rights, whether they are provided at the hearing or not; 4) the burden of persuasion was not clear.
Mansour v. King, 128 P.3d 1241(Wash App. 2006) - Due process requires 1) A preponderance of evidence burden of proof; 2) subpoena power; 3) proper notice of the charges; 4) right to counsel; 5) right to cross examine witnesses; 6) discovery.