Pierce County's dangerous-dog policy deemed unconstitutional

A state appeals court has declared unconstitutional Pierce County’s dangerous-dog ordinance, ruling the law meant to protect the public from vicious animals violates the due-process rights of their owners.

Auditor Julie Anderson, whose office oversees the county’s animal control department, said last week that the county plans to appeal.

In the meantime, Anderson has suspended the county’s practice of collecting fees from people seeking a hearing to challenge the designation of their dogs as dangerous. The county also will refund fees to those people who have paid but not yet had their hearing.

“This is a temporary measure until we can settle the law,” she told The News Tribune in an email.

A panel of the Division II Court of Appeals issued an opinion last week calling the fees unconstitutional. The three-judge panel ruled unanimously that the fees could deprive people who can’t afford to pay them the right to challenge the county’s unilateral declaration of their dogs as dangerous.

“Requiring the responding party to pay a fee to access any review of a government-initiated action could prevent many people from obtaining the review they are legally entitled to before deprivation of a property interest,” Justice Jill Johanson wrote for the court. Judges David Armstrong and Marywave Van Deren also signed the opinion.

Bellingham attorney Adam Karp, who represented a Pierce County woman who challenged the law, summed it up this way: “You shouldn’t have to purchase justice.”

The panel also ruled the county’s process for deeming an animal dangerous is not rigorous enough, making it too easy for government officials to declare an animal vicious.

Karp said the ruling could have repercussions for other governments that charge fees before giving dog owners a hearing to challenge their animals’ “dangerous” designations.

Tacoma, Lakewood, Puyallup and Bonney Lake all charge such fees.

Karp said he also was researching whether the ruling could overturn dangerous-dog designations handed out to animals whose owners previously were charged the fee.

There are 45 animals in Pierce County that have been officially declared dangerous or potentially dangerous, according to county records, including nine declared such this year.

The case stems from an April 2009 incident in which a 7-pound Pomeranian was attacked by another dog and so badly hurt it had to be put down.

Kayla’s owner blamed the attack on Heidi Downey’s Great Pyrenees-cross.

A Pierce County animal control officer declared that dog, named Blizzard, “dangerous,” which meant Downey had to meet a number of stringent requirements if she wanted to keep the dog. Under county law, animal control officers can deem a dog dangerous without holding a hearing.

Downey decided to fight the designation and was required to pay a $250 fee to get a hearing with a member of the Auditor’s Office.

That hearing – really an informal meeting – went against her, and she had to pay $500 to take her case to a hearing examiner, who held a formal hearing with testimony from witnesses.

The hearing examiner also ruled against her, and Downey appealed to Superior Court, where she lost again.

She then took her case to the Court of Appeals.

During June 20, 2011, oral arguments, Karp argued the fees were an unfair hurdle to put before people who wanted a hearing to challenge an animal control officer’s opinion that a dog is dangerous or potentially dangerous.

Owners of potentially dangerous dogs must put up $125 for the initial hearing and $250 for a date before the hearing examiner.

“Many people can’t afford to fight that designation,” he told the judges, according to a recording of the session. “You’re going to have to pay money to contest it, and you can’t get your money back (even if you win). That doesn’t appear to comport with any form of due process.”

Deputy Prosecutor Cort O’Connor, who argued the case on behalf of the county, countered that charging the fees discouraged “frivolous appeals” and helped promote public safety.

Animal owners have a choice, O’Connor told the judges.

They can get a $250 permit and take out a $250,000 insurance policy that allows them to keep a dangerous dog, or they can pay the fees to challenge the designation, he said.

O’Connor conceded due-process rights need to be protected but said the government has the right to regulate dangerous animals.

“The government’s interest in protecting the public from these animals is also great,” he said.

One justice peppered O’Connor with questions during his argument and signaled the direction the court was headed.

“But you’re jumping over the initial issue, which is: Is this a dangerous animal?” the justice, who isn’t identified on the recording, said to O’Connor. “You’re assuming this is a correct designation without a review. It’s guilty until proven innocent, and, oh, by the way, to prove your innocence you have to pay a lot of money to us at several different stages.”

O’Connor also said the fees help cover the county’s costs for holding the hearings.

“The county believes it’s reasonable to ask the animal owners to share in the costs,” O’Connor said. “The county is not making money off these appeals.”

Those arguments did not sway the panel, which also ruled there wasn’t enough evidence presented at any level of the proceedings against Blizzard to declare the dog dangerous.

They ordered the designation against the dog be reversed.

Adam Lynn: 253-597-8644

adam.lynn@thenewstribune.com

blog.thenewstribune.com/crime

Twitter: @TNTadam