State ex rel. Ohio Soc. for Prevention of Cruelty to Animals, Inc. v. Harrison Cty. Bd. of Commrs.State ex rel. Ohio Soc. for Prevention of Cruelty to Animals, Inc. v. Harrison Cty. Bd. of Commrs.
For Relator: Attorney John Bell, 2700 East Main Street, Suite 207, P.O. Box 091022, Bexley, Ohio 43209
For Respondents: Attorney T. Shawn Hervey, Prosecuting Attorney, Attorney Michael Washington, Assistant Prosecuting Attorney, 111 West Warren Street, P.O. Box 248, Cadiz, Ohio 43907
¶{1} In August 2010, Relator The Ohio Society for the Prevention of Cruelty to Animals, Inc., filed the instant mandamus action seeking an ordering forcing Respondents Harrison County Board of Commissioners and the Harrison County Dog Warden to comply with its request for public records and to comply with thе requirements in the Ohio Revised Code for operating a dog pound. Respondents responded to the petition and filed a motion to dismiss. We denied the motion to dismiss and issued a discovery schedule. Following discovery, the parties filed motions for summary judgment asserting their respective positions as to why the petition for a writ of mandamus should or should not be granted.
¶{2} It is settled law that in order for a writ of mandamus to issue, Relator must demonstrate: (1) that Relator has a clear legal right to the relief prayed for; (2) that Respondents are under a clear legal duty to perform the acts requested; and (3) that Relаtor has no plain and adequate remedy in the ordinary course of the law. State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28.
¶{3}
¶{4} The arguments presented in the petition for a writ of mandamus and the parties’ motions for summary judgment can be divided into two parts — public records request and compliance with the Ohio Revised Code for the operation of the dog pound. Each will be addressed in turn.
Public Records
¶{5} In the motion for summary judgment, Relator asserts that Respondents failed to comply with the
¶{6} “Although records were provided by Respondents, they were not provided in a timely fashion, and no appropriate explanation was provided as to records that did not exist or were not provided. As such Respondents must submit to a finding of Summary Judgment as to that portion of this cause of action.
¶{7} “Defendants-Respondents request a hearing to be held to determine an appropriate sanction and reasonable attorney fees under the public records law. Respondents believe that the appropriate sanction is the $1,000.00 maximum allowable by law.”
¶{8} There are requirements in
¶{9} The parties agree that Respondents did furnish quarterly reports, however, the reports did not contain all the necessary information. It is unclear whether Respondents withheld the report that contained all required reporting information or whether the records being kept were not in accordance with the requirements in
Operation of Dog Pound
¶{10} The arguments concerning the operation of the dog pound encompasses many subarguments regarding certain alleged requirements in
Record Keeping
¶{11} The first argument made by Relator is that the dog pound‘s record keeping does not comply with
Notice of Redemption
¶{12} Relator‘s second argument as to the operation of the dog pound concerns Respondents compliance with
¶{13} “A.(Commissioner Pincola) I mean, you have to understand what I said earlier that we are funded by dog license, $12 a dog, and we — and that is one person that we have who is taking care of all the dogs and doing all — you know, the runs and verifying all of this and then trying to get this in there. We don‘t have a budget. That‘s why we use the phone, and it works. We are a small enough county that — like he said, half the time you see the dog and you go, oh, Joe‘s dog‘s loose again, and you just drop it back off to Joe because its’ just the way this — these smaller rural areas operate.” (Depo. 28).
¶{14}
¶{15} “Whenever any person files an affidavit in a court of competent jurisdiction that there is a dog running at large that is not kept constantly confined either in a registered dog kennel or on the premises of an institution or оrganization of the type described in section
¶{16} Givеn the language of the statute, certified mail is required. We cannot find that a phone call is equivalent to the certified mail requirement. While the budgets of these more rural counties are clearly limited, we cannot change the clearly mandated requirement of certified mail. The general assembly can rewrite the law, not this court. Thus, calling an owner does not comply with
Application of Revised Code Chapter 959 to Respondents
¶{17} Under this argument, Relator asserts that
¶{19} That said, when dissecting the arguments it appears what Relator is actually asserting is that there is a clear legal duty for Respondents to provide a “suitable” pound. In asserting that, it contends that
¶{20} Relator is correct that there is a clear legal duty to provide a “suitable” pound.
¶{21} “The board of county commissioners shall provide nets and other suitable devices for the taking of dogs in a humane manner, provide a suitable place for impounding dogs, make proper provision for feeding and caring for the same, and provide humane devices and methods for destroying dogs.”
¶{22} However,
¶{23}
¶{24} “(C) No person who confines or who is the custodian or caretaker of a companion animal shall negligently do any of the following:
¶{25} “(1) Torture, torment, needlessly mutilate or maim, cruelly beat, poison, needlessly kill, or commit an act of cruelty against the companion animal;
¶{26} “(2) Deprive the companion animal of nеcessary sustenance, confine the companion animal without supplying it during the confinement with sufficient quantities of good, wholesome food and water, or impound or confine the companion animal without affording it, during the impoundment or confinement, with access to shelter from heat, cold, wind, rain, snow, or excessive direct sunlight, if it can reasonably be expected that the companion animal would become sick or suffer in any other way as a result of or due to the deprivation, confinement, or impoundment or confinement in any of those specified manners.”
¶{27} Relator cites this court to an Ohio Attorney General opinion for an indication that
¶{28} The opinion goes on to discuss that a dog pound is required to keep a dog from 3 to 16 days and in some cases longer if the dog was treated inhumanely by its owner. Id. In that case, the animal would be held until animal cruelty charges were resolved. The opinion then references
¶{29} “Stated affirmatively, the facility must be a place where it is possible to provide the imрounded dogs with a sufficient quantity of good wholesome food and
¶{30} While the above case discusses
¶{31} That said, in 2002, the Fourth Appellate District reviewed the Attorney General‘s Baxter opinion. Lewis, 4th Dist. No. 98CA830, 2002-Ohio-1424. It found that the Baxter opinion was not enlightening:
¶{32} “The Attorney General‘s opinion is a simple restatement оf the statute, with little guidance as to what conditions might make the facility unsuitable or result in ‘cruelty to animals.’ Relator has not introduced any evidence of specific standards or minimum conditions that characterize or identify a ‘suitable place,’ or introduced specific evidence of general operations that may constitute cruelty to animals, except for conditions surrounding the pound‘s drop-off capability and allegations of unlawful and inhumane destruction of dogs, which are addressed below. Absent any controlling case law, mandatory guidelines in the statute or some evidencе that defines a suitable place, we cannot issue a writ. Mandamus will not issue to compel Respondents to follow the law generally. Cullen v. State (1922), 105 Ohio St. 545. Had we been presented with some evidence of well-recognized minimum standards or specific evidence of cruelty, our decision might be otherwise. However, under the existing record, the commissioners of the county in which the dog pound is located are in a better position to determine what type of facility will fulfill their county‘s needs.” Id. at ¶21.
¶{33} Here, we have allegations of unsanitary conditions and no shelter. Thus, we find the case at hand to be distinguishable from Lewis because there are specific allegations of unsuitableness. Furthermore, although the Attorney General‘s Baxter opinion is not binding, we find its reasoning to be logical. A suitable dog pound must be a place that would not constitute cruelty to the dog as defined in
¶{35} Attached to the January 31, 2011, Response to the Request for Production of Documents is the Harrison County Dog Pound Operational Manual and pictures of the dog pound taken on January 10, 2011, which are accompanied by an affidavit from the county prosecutor authenticating the pictures. Also, attached to Respondents’ Reply to Relator‘s Motion in Opposition to Respondents’ Motion for Summary Judgment is an affidavit from the current dog warden and pictures showing the condition of the pound on June 24, 2011.
¶{36} At the outset, it must be noted that the dоcumentation attached to the reply should have been attached to Respondents’ Motion in Opposition to Relator‘s Motion for Summary Judgment and its own Motion for Summary Judgment. That said, considering that the pictures and accompanying affidavit are proper evidence under
¶{37} Current dog warden Tina DeWalt‘s affidavit provides:
¶{38} “3. In performance of my duties I clean and sanitize all cage holding impounded dogs at least once per day and feed all dogs two times daily, including Saturdays and Sundays. If I am not available for the aforementioned cleaning and feeding, it is performed by a volunteer.
¶{39} “4. Over and above my statutory duties I walk all impounded dogs daily and also provided them with exercise time in the dog pound fenced in grass area.
¶{40} “5. From June 2010 through 24 June 2011, the Harrison County Dog Pound has successfully placed 163 dogs through adoption either to the general public or through rescue organizations. Zero dogs have been euthanized during the same period of time.
¶{41} “6. The attached photographs marked as exhibits A, B, C, and D are fair and accurate depictions of the Harrison County Dog Pound as it appeared on 24 June 2011, and have not been doctored or modified in any way. Said photographs show the cleanliness and general condition оf the dog pound.”
¶{43} The January and June 2011 pictures do appear to depict a clean dog pound, albeit smеlls cannot be depicted from pictures. It appears that the pound does provide some pens that are inside. Other pens could be classified as semi-outside. These pens are located in a structure that could be described as a shelter — there is a roof, but not sides on the building. The pens that are located in the shelter have dog houses in each pen. There are other pens that are entirely outside, but these pens have what appears to be a tarp covering them for protection from the elements. These pens, like the semi-outside pens, have dog houses in them.
¶{44} All the above demonstrates that the pound is suitable as defined by the Attorney General‘s Baxter opinion; the affidavit of the current dog warden and the pictures show that the dogs are being fed and watered, have exercise and have a shelter. Nowhere in the statute does it say that a dog must be kept in an inside facility. The statute reads that there must be shelter from nature‘s elements if it can reasonably be expected that the animal would otherwise become sick or in some other way suffer. That shelter can be a “man-made enclosure, windbreak, sunshade or natural windbreak or sunshade that is dеveloped for the earth‘s contour, tree development or vegetation.”
¶{45} We acknowledge that Relator filed a supplemental reply in response to Respondents’ reply to summary judgment. Attached to the supplemental reply are a picture and a Facebook print out. These items are not proper evidence for summary judgment under
¶{46} Therefore, given the evidence submitted, summary judgment on this issue is granted to Respondents. We will not issue a writ ordering Respondents to provide a suitable dog pound, since the authenticatеd pictures and affidavit demonstrate a suitable dog pound. That said, given Respondents acknowledgement of practices that occurred under prior wardens, some of which may very well constitute unsuitability, we caution Respondents to maintain a suitable pound or a writ could be issued against them in future litigation.
Euthanasia
¶{47} There are allegations in the petition for a writ of mandamus about unnecessary killing of dogs and of use of a homemade gas box to kill the dogs. Starting with the gas box, it is alleged that this is not a humane way to destroy a dog and violates
¶{48} “No person shall destroy any dog by the use of a high altitude decompression chamber or by any method other than a method that immediately and painlessly renders the dog initially unconscious and subsequently dead.”
¶{49} The evidence indicates that the gas box is no longer used and has been scrapped. (Piccola Depo. 51). The filings also indicate that the means of euthanasia will be injection. Dog Pound Manual attached to Response to Production of Documents. Thus, any allegation that Respondents are violating a clear legal duty euthanizing a dog through a homemade gas box is moot.
¶{50} As to unnecessary killings, this argument encompasses the allegation that dogs were destroyed prior to the mandated time limits for redemption.
¶{51} Accordingly, given Respondents concession and the lack of records, we will issue a writ on this matter. However, our order will not encompass a mandate that a healthy dog cannot be destroyed. Relator is of the position that destruction of a healthy dog is inhumane and constitutes an unnecessary killing. We disagree.
Veterinary Care
¶{52} Relator asserts that Respondents havе a duty to provide veterinary care for injured or distressed dogs. An express duty to provide veterinary care is listed under
¶{53} “(A) Dogs that have been seized by the county dog warden and impounded shall be kept, housed, and fed for three days for the purpose of redemption, as provided by section
955.18 of the Revised Code , unless any of the following applies:¶{54} “(1) Immediate humane destruction of the dog is necessary because of obvious disease or injury. If the diseased or injured dog is registered, as determined from the current year‘s registration list maintained by the warden and the county auditor of the county where the dog is registered, the necessity of destroying the dog shall be certified by a licensed veterinarian or a registered veterinary technician. If the dog is not registered, the decision to destroy it shall be made by the warden.”
¶{55} There are no clear specific allegations that this duty was violated. Despite that, Relator asserts, “Respondents do not advance any argument as to how they could operate a ‘suitable place’ for impoundment of animals which does not violate
¶{56} The problem with this position is that there must be a clear legal duty for veterinarian pаrticipation and a violation of that duty before this court can issue a writ.
Posted Hours of Operation
¶{57} In Lewis, the court issued a mandamus on posting hours of operation. It explained:
¶{58} “According to
R.C. 955.15 , the county commissioners ‘shall provide * * * for the taking of dogs in a humane manner, provide a suitable place for impounding dogs, make proper provision for feeding and caring for the same, and provide humane devices and methods for destroying dogs.’ Nothing in this statute expressly requires the commissioners or the dog warden to post the pound‘s operational hours. However, it would seem implicit to post the hours for the public‘s convenience given owners’ rights of redemption underR.C. 955.12 ,955.16 and955.18 . Those redemption rights may be severely limited if the hours of operation of the pound are limited as respondents have admitted. Accordingly, we issue a writ of mandamus requiring the commissioners to post the pound‘s operational hours, including those times when someone is normally there, and phone number.” Lewis, supra, at ¶22.
¶{59} We find this reasoning to be sound and adopt as our own. Accordingly, issuance of a writ of mandamus on this issue is warranted.
¶{60} Relator appears to assert that the dog pound is underfunded and that the Commissioners must provide more funding for the dog pound.
¶{61}
¶{62} “The registration fees provided for in sections
955.01 to955.14 of the Revised Code constitute a special fund known as ‘the dog and kennel fund.’ The fees shall be deposited by the county auditor in the county treasury daily as collected and shall be used for the purpose of defraying the cost of furnishing all blanks, records, tags, nets, and other equipment, for the purpose of paying the compensation of county dog wardens, deputies, poundkeepers, and other employees necessary to carry out and enforce sections955.01 to955.261 of the Revised Code , and for the payment of animal claims as provided in sections955.29 to955.38 of the Revised Code , and in accordance with section955.27 of the Revised Code . The board of county commissioners, by resolution, shall appropriate sufficient funds out of the dog and kennel fund, not more than fifteen per cent of which shall be expended by the auditor for registration tags, blanks, records, and clerk hire, for the purpose of defraying the necessary expenses of registering, seizing, impounding, and destroying dogs in accordance with sections955.01 to955.27 of the Revised Code , and for the purpose of covering any additional expenses incurred by the county auditor as authorized by division (F)(3) of section955.14 of the Revised Code .¶{63} “If the funds so appropriated in any calendar year are found by the board to be insufficient to defray the necessary cost and expense of the county dog warden in enforcing sections
955.01 to955.27 of the Revised Code , the board, by resolution so provided, after setting aside a sum equal to the total amount of animal claims filed in that calendar year, or an amount equal to the total amount of animal claims paid or allowed the preceding year, whichever amount is larger, may appropriate further funds for the use and purpose of the county dog warden in administering those sections.”
¶{64} While this statute provides that the Commissioners may pass a resolution to increase the funding, that is only done when the Commissioners deem the statutory amount insufficient. This is clearly a discretionary call. When the decision is purely within the discretion of the board, issuance of a writ is not warranted
¶{65} Therefore, we will not issue a writ ordering the Commissioners to increase funding for the pound. Summary judgment on this issue is granted in favor of Respondents.
ORDER
¶{66} Accordingly, it is the order of this court that each party‘s motion for summary judgment is granted in part and denied in part.
¶{67} Relator is granted summary judgment on the public records request. Respondents are ordered to pay Relator statutory damages in the amount of $1,000.
¶{68} Respondents are granted summary judgment on the issues of suitability of the dog pound, inhumane euthanasia, veterinarian care and funding of the dog pound. As discussed in depth above, Relator is not entitled to a writ of mandamus on these issues because either it has failed to establish that there is a clear legal duty or it has failed to show that there is violation of a clear legal duty.
¶{69} That said, as explained supra, Relator has established and Respondents have conceded that there is merit with some of the issues raised in the petition for a writ of mandamus. Accordingly, based on the above reasoning we issue the following orders:
- Respondents shall make and maintain records as is required by
Revised Code Chapter 955 . - Respondents shall comply fully with
R.C. 955.12 , including the mandate that the owner of a seized аnd impounded dog to be notified by certified of mail of the dog‘s seizure and impoundment and of the ability of the owner to redeem the animal. Respondents shall hold all impounded animals for the required redemption periods specified in Ohio Revised Code Chapter 955 . Respondents shall also make the statutorily required efforts to place unclaimed animals in research facilities prior to destruction as is provided inOhio Revised Code Chapter 955 .- Respondents shall observe and post hours of operation and shall post a public phone number for the pound. It is within Respondents’ discretion to limit public access to the pound for public safety and security concerns.
¶{70} IT IS SO ORDERED.
¶{71} Final order. Clerk to serve notice as provided by the Civil Rules.
Vukovich, J., concurs.
Waite, P.J., concurs.
DeGenaro, J., concurs.