Substantive Due Process

Substantive Due Process

We are trying to develop the concept that dog ownership not only triggers procedural due process, but substantive due process. Substantive due process rights are important, because when such rights are triggered, they limit the government's intrusion to the least restrictive alternative.

In order for due process to be triggered, property ownership must be a fundamental right. Thus far, no court in the United States that I have found, has applied substantive due process to dog ownership.

However, the Florida Constitution contains the right to property and liberty, and the case law interpreting these rights is stronger than any other state in the U.S. 

I argued in Oliver v. Clay County  that euthanasia of a dog is improper unless the court makes a determination that there is not a less restrictive alternative that can protect the public interest.  If it can be shown that the dog could have training, be kept inside, muzzled, or taken to another county, the court should consider those alternative prior to ordering euthanasia. Interestingly, the Clay County attorney agreed that dog ownership was a fundamental right in Florida.

Applicable Case Law


Estate of Magee v. Edna Magee, 988 So.2d 1 (2nd DCA 2007) - This case involved an elective share taken by decedent's widow. The widow argued that the elective share statute was invalid as an improper invasion of the government in the fundamental right to devise property.  The court discusses property ownership as a fundamental right. "(A)rticle I, section 2, protects all incidents of property ownership from infringement by the state unless the regulations are reasonably necessary to secure the public welfare.....the state must employ the least restrictive alternative to achieve its legitimate objectives where such rights are at stake." The court then cites to In Re Forfeiture of 1969 Piper Navajo, 592 So.2d 233 (Fla. 1992) which invalidated a statute because it was not narrowly tailored to the state's objective.The citation to Navajo case is significant, because the interest their was in personal rather than real property, allowing an argument that dogs would fit into this concept.

Rutledge v. County of Hillsborough, 2005 WL 2416976 (Fla. Cir. Ct. Hillsborough 2005) - Appeal was taken by real property owners against the Code Enforcement Board  which had imposed leins against their property. The court held that the Code Enforcement Board violated owners due process rights by failing to give notice of subsequent violations. In discussing governmental regulation of property interests, the court cited to Pasco v. Reihl, 620 So.2d 229 (2nd DCA 1993) which involved the enforcement of a dangerous dog ordinance found unconstitutional, giving further credence to the argument that dog ownership is a protected property interest.  The court then goes on to cite to Massey v. Charlotte County, 842 So.2d 142 (2nd DCA 2003) where that court said, "(T)he Masseys have a compelling interest in retaining their real and personal property...the means by which the state can protect its interests must be narrowly tailored to achieve its objective through the least restrictive alternative."

Rae v. Flynn, 690 So.2d 1341 (3rd DCA 1997) - Upheld a permanent injunction against barking dogs as it was and appropriate exercise of judicial authority to reduce hostility by the least restrictive means. Injunction allowed the owner to maintain her dogs but in a manner so as not to disturb neighbor's right to peacefully enjoy his property. The court used a nuisance analysis.

Metropolitan Dade County v. Browd, 679 So.2d 1260 (3rd DCA 1996) - Holds that despite the fact that the dangerous dog law says that a dog "shall" be declared dangerous if it severely injures a dog off its owner's property, animal control officer decision not to classify the dog dangerous is a discretionary decision not reviewable by the courts.  This is a very important ruling, because by analogy, the judge when considering euthanasia of a dog has the discretion not to follow the "shall" in the statute in that section by the reasoning of this case.

Department of Law Enforcement v. Real Property, 588 So2d 957 (S.Ct. 1991) - The Supreme Court of Florida upheld the Florida Contraband and Forfeiture Act by construing it to require minimal due process requirements.  Forfeitures are harsh and not favored in law or equity. The court traces the history of due process and states that the Act can stand so long as the state protects its interests in a narrowly tailored way.  The court found that property interests are a fundamental substantive right under the Florida Constitution that require notice and an opportunity to be heard when interfered with by the government. Seizure of personal property by the government only if an adversarial preliminary hearing  is made available as soon as possible after seizure. The preliminary hearing requires a de novo determination as whether probable cause exists to maintain the forfeiture action and to determine whether continued seizure of the property is the least restrictive means warranted by the circumstances to protect against disposal of the property pending final disposition. The government has the burden of proof and it is clear and convincing.

New York

People v. Jornov, 881 N.Y.S.2d 776 (N.Y. A.D. 4 Dept. 2009) - In this canine euthanasia case the court held that the burden of proof was clear and convincing and that the New York statute was flawed because it failed to allow the court the discretion to determine if euthanasia  was appropriate in the absence of aggravating circumstances.  The decision implies that the courts should be given discretion to allow a lesser restrictive alternative than euthanasia.

Dangerous Dog Law

Helping to defend our best friends. Dangerous Dog Law (DDL) focuses on the legal defense of allegedly dangerous dogs. DDL is a member of the Pit Bulletin Legal News Network.

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