Pooch Facing Exile Gets Due Process Reprieve

150 150 Karr Tuttle Campbell

By Gene Barton

In a new twist on an old “tail,” Maxine Mansour, beloved companion of Kirkland software pioneer Peter Mansour, was rescued from an  uncertain fate by the Washington Court of Appeals on January 23.1

Maxine, who already had been saved once by Mansour when he   adopted her from a pound, was facing exile from King County or even  possible euthanasia under a King County ordinance in the 2003 death of a neighbor’s cat. Mansour’s pleas that Maxine was innocent went  unheeded when the King County Board of Appeals upheld an Animal Control order that Mansour move Maxine out of the county or have her  put down.

The Board effectively required Mansour to prove Maxine’s innocence rather than require Animal Control to prove her guilt, according to Mansour’s attorney, Adam Karp. The King County Superior Court upheld the Board on summary judgment. Before the Court of Appeals, however, Karp successfully argued that the guilty-until-proven innocent standard that he maintained had been used by the board was   unconstitutionally backwards.

The Court held:

Procedural due process requires that Animal Control prove its case before the Board by a preponderance of the evidence. Because the superior court sanctioned an inadequate standard of proof and it is unclear what standard the Board applied, we agree with Mansour that the Board violated his procedural due process rights.

At the hearing before the Board of Appeals, the board had refused to let Mansour subpoena and/or depose witnesses or obtain production of x-rays, post-mortem reports, chart notes and the cat’s body for evaluation. The County also had submitted signed statements from several people as evidence at the hearing, but the Board did not allow
Mansour to subpoena two of the witnesses who told Karp “that their statements were not entirely accurate.”2

These denials formed the basis of the court’s due process opinion. The issue put before the court was “what process a municipality must  provide a dog owner before it significantly impacts his property  interest  in his dog.” Applying administrative law principles,3 the court  held that the standard of review required it to “determine whether the  Board acted arbitrarily, capriciously, or contrary to law in upholding  Animal Control’s Removal Order.” Asserting that a “clear  preponderance” standard was required, Mansour asserted that the Board did not use even a “mere preponderance” standard, but “simply  acted in an  appellate capacity to determine whether Animal Control’s  order was arbitrary and capricious.”

The court first noted that “due process rights attach to dog ownership”4 and that “[a]n adequate standard of proof is a mandatory safeguard.”5 “The more important the decision,” the court said, “the higher standard of proof.” The court then pointed out that neither the King County Code nor Board rules “require a particular standard of proof in a removal proceeding” and that the record did not “indicate what standard the Board applied here.”

Citing the Superior Court’s decision that “Animal Control had to prove by ‘substantial evidence that it did not act arbitrarily and capriciously,” the Court of Appeals found that this did not express an evidentiary standard. “Rather, it is the standard by which the superior court and this court review the Board’s decision.”6 The court held that “due process requires that Animal Control prove more than that it simply did not act
arbitrarily and capriciously.”

We recognize that the bond between pet and owner often runs deep and that many people consider pets part of the family. Other  Washington counties require that when an owner appeals an Animal Control order, the agency must prove by a preponderance of the  evidence that the dog is dangerous.7 A purely monetary dispute between private parties would warrant greater protection than King County advocates for removal hearings.8

The court agreed with Mansour and applied an “intermediate standard” requiring “clear preponderance of the evidence or clear and convincing evidence.”9 On the record before it, the court stated that it could not “presume that the Board applied at least a preponderance of the evidence standard of proof.” The court held:

[T]he Board never indicated that it adopted that standard. It simply issued findings of fact and then stated that it “upheld” Animal Control’s Removal Order. We cannot review the Board’s findings and   conclusions when it may have used a fundamentally wrong standard in making those findings and reaching those conclusions. . . . [I]t is  probable that the Board also failed to require of Animal Control the proper quantum of proof. The lack of a clearly ascertainable standard
of proof violated Mansour’s procedural due process rights.

In the second part of its opinion, the Court of Appeals also found that the “Board attorney’s refusal to permit discovery or subpoenas significantly limited Mansour’s ability to offer witnesses on his behalf,” cross-examine the veterinarian who had examined the cat “or rebut the evidence against him.” Nor was he allowed to call his own expert.  These restrictions, the court held, also violated Mansour’s procedural due process rights.

Given the restrictions on Mansour’s ability to present his case, the risk of erroneous deprivation of Mansour’s interest in Maxine is significant. Allowing Mansour and other pet owners to subpoena witnesses and records would substantially minimize this risk without imposing any burden on the County. Requiring Mansour to move out of King County to keep Maxine alive is a severe enough sanction to warrant more formal procedural safeguards. Due process requires that a pet owner contesting a removal order be able to subpoena witnesses and   records.

Finally, the Court of Appeals also found that the Removal Order failed to give Mansour adequate notice of the relevant authority for the violation and “exactly what they County needed to prove at the Board hearing.” It stated, “It is not unduly burdensome to require the County to notify an owner of the specific ordinance or statute it is invoking to support its removal authority.”

The Court of Appeals remanded the matter to the Board of Appeals where, if the matter is further pursued by the County, “the proceedings must comport with the due process requirements discussed in this opinion.” The County indicated it might appeal.

1 See Mansour v. King County, No. 55292-0-I, filed January 23, 2006.
2 Mansour at n.4.
3 Citing Stegriy v. King County, 39 Wn. App. 346, 350–51, 693 P.2d 183 (1984), id. at n.11.
4 Citing Rabon v. City of Seattle, 107 Wn. App. 734, 743–44, 34 P.3d 821 (2001), and other cases, id. at n.6.
5 Citing Nguyen v. Department of Health Md. Quality Assurance  Comm’n, 144 Wn.2d 516, 524, 29 P.3d 689 (2001), id. at n.18.
6 Citing State v. MacKenzie, 114 Wn. App. 687, 696–97, 60 P.3d 607 (2002), id. at n.22.
7 Citing, e.g., Clallam County Code 17.03.030(2), id. at n.24.
8 Citing Nguyen, 144 Wn.2d at 524, id. at n.25.
9 This standard is “intermediate” because it sits between the preponderance standard that applies in most civil cases and the criminal standard of beyond a reasonable doubt. As the court noted, the clear and convincing evidence standard is applied in civil cases involving involuntary commitment, fraud, quasicriminal wrongdoing and “situations where the defendants’ reputation would be tarnished.” Citing Nguyen, 144 Wn.2d at 524–25, id. at n.29.