Life, liberty and death are issues that numerous court battles struggle over today and will continue to in the future. For some, this battle is worth every penny, especially when it involves man's best friend.

On December 22, 2003, Valerie Edgington, 51, of Ocala, was hospitalized after being bitten by a poisonous brown recluse spider. Edgington owned 23 dogs at the time. During her emergency, she had her dogs placed in their cages as she was driven off in an ambulance. She tried to make arrangements for her companions during her absences.

Edgington was released from care, hospitalization and rehabilitation, one month later to only find out that 19 of her pets had been picked up by code enforcement officers and being housed at the Marion County animal shelter. Two of the dogs had died before the removal and two could not be seized.

Pasha, Susie, Buck, Billie, Star, Brook, Sherry, White Fang, Shawn, Tammie, Cody, Jake, Sky, Boogie, Wyatt, Sheba, Pixie, Dixie and Punky are all in danger of being euthanized. Three days is the average holding time for animals without a license and 10 days for those with a license. After the holding time, animals are either put up for adoption or euthanized. Edgington's dogs have been in the care of the county for over 50 days. The bill for care of the dogs is over $8,000 and increases $152 daily for Edgington.

Edgington would need to pay the bill in full for the doggies to come home.

Edgington has filed a federal lawsuit claiming that her Fifth and Fourteenth Amendment rights to due process were violated since Marion County is illegally holding her dogs and refuse to return them without payment of the fines.⁽¹⁾

History and Scope of Due Process

The Supreme Court has well established that Due Process contains a system of rights and freedoms based on principles and morals deeply rooted in the tradition and history of society.⁽²⁾ The significance of these principles are deemed as necessary for our civilized society to be fair and just. ⁽³⁾ Our judicial system can trace the basis of Due Process back to chapter 39 of the Magna Carta, in which King John promised that "no free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land"⁽⁴⁾

Over time, this clause from the Magna Carter has transcended from the limitation of scope as it was first drafted. The founders of the United States Constitution defined the clause with reference to both procedural and substantive matters which have been embraced the American judicial system. The Fifth and the Fourteenth Amendments grant all persons, citizens or aliens, and entities such as corporations with entitlements not to be subjected to absolute government control but to have some form of protection.⁽⁵⁾ There is a difference between the clauses of the Fifth and the Fourteenth Amendments. The Fifth contains many of the guarantees of the Bill of Rights and addresses the Federal Government. Nevertheless, the protection or vested rights that persons are entitled to include fair hearings, fair trials, notices to proceedings, equal protection of the law and much more.

Existing Law as to Due Process and dogs

The Due Process Clause of the Fourteenth Amendment requires that deprivation of life, liberty, or property be preceded by notice and an opportunity for hearing appropriate to the type of the case.⁽⁶⁾ Animals, including all 19 of Edgington's dogs, become private property as soon as they are under private control, possession or confinement and the due process clause is applicable. ⁽⁷⁾ Although early common law regarded dogs as inferior type of property and was granted less protection, this has changed through case law.⁽⁸⁾ However, dogs are still imperfect or qualified property, and therefore, could be subject to drastic regulations without violating owners of any federal rights.⁽⁹⁾

Today due process of law implies, in its most comprehensive sense, "the right of the person affected thereby to be present before the tribunal which pronounces judgment upon a question of life, liberty or property, to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved."⁽¹⁰⁾ To determine whether a person has received due process, a court must examine three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation, and the probable value of additional safeguards; and (3) the government's interest, including the function involved and the administrative burdens that an additional or substitute procedural requirement would entail. ⁽¹¹⁾

The majority of canine case law discusses various vicious dog statutes and ordinances. These cases involve states, cities and/or counties, declaring a particular dog, or a certain breed of dog as dangerous. The government entity uses its "police power" to make such declarations in order to promote public safety and interests for the citizens and the animals.⁽¹²⁾ To promote this public interest, the power allows government to seize the dogs and in some cases destroy them also. In most cases, the government action only has to past a "rational basis test" to see if such laws violates due process and equal protection clauses.⁽¹³⁾ No matter what, owners and their pooches are entitled into some type of notice before the deprivation arises. ⁽¹⁴⁾ Notice can be in the form of the law itself or through other avenues. For instance, some courts have found pre-deprivation hearings a necessity in cases involving dangerous dogs where law can subject for animal to confinement, marking, or other matters. ⁽¹⁵⁾

The laws involving due process and animals do not stop at deadly dogs, they also include simple issues such as licensing and registration. Courts have upheld ordinances requiring the licensing and registration of dogs as long as they are reasonable.⁽¹⁶⁾ It is within the power of a municipality to require all persons keeping dogs within the city limits to register and procure tags for them and to pay a fee. ⁽¹⁷⁾ The fee is generally considered a license for the purpose of controlling and regulating dogs, rather than a tax imposed for the sake of revenue.⁽¹⁸⁾ The courts have determined that dog owners are not deprived of their property or of their liberty without due process of law by a state statute under which those desiring to keep dogs must secure licenses from, and pay fees to, a private corporation created by the state to enforce the laws enacted to prevent cruelty to animals. The corporation fees are used for the payment of expenses fairly incurred, and any excess to be retained as compensation for its services in law enforcement.⁽¹⁹⁾

Canine laws can drastically impact owner's liberties in regards to the type of dogs, how many dogs, registration and fees for the dogs. Nevertheless, due process permits that every dog has its day in court and gets an opportunity to be heard.

Citations

1. ¹ Dana Attocknie, A Breed Apart, Ocala Star Banner, February 18, 2004 at B1. All the facts referenced in regards to Valerie Edgington were located in the newspaper article. Ms. Edgington is permitted to visit her animals while this case is proceeding.

2. ² Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Justice Frankfurter dissenting). Due process is violated if a practice or rule ''offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'' Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

3. ³ Id.

4. ⁴ State ex rel. Atty. Gen. v. Guilbert, 56 Ohio St. 575, 47 N.E. 551 (1897); State ex rel. Schneider v. Gullatt Cleaning & Laundry Co., 32 Ohio N.P. (n.s.) 121, 1934 WL 1926 (C.P. 1934). W. McKechnie, Magna Carta--A Commentary on the Great Charter of King John (Glasgow: 2d rev. ed. 1914); J. Holt, Magna Carta (Cambridge: 1965).

5. ⁵ Sinking Fund Cases, 99 U.S. 700, 719 (1879). Wong Wing v. United States, 163 U.S. 228, 238 (1896).

6. ⁶ Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) (where a mother failed to notify her ex-husband of a hearing in regards to a adoptive child and a hearing held after at the request of the ex-husband did not cure the constitutional infirmity.); U.S Const. Amend. V.

7. ⁷ Levine v. Knowles, 197 So.2d 329 (Dogs are subjects of property or ownership.);Barrow v. Holland, 125 So.2d 749 (Once animals ferae naturae have been legitimately reduced to private control, confinement and possession, they become private property and the owner thereof cannot be deprived of their use except in accord with due process.)

8. ⁸ Dickerman v Consolidated R. Co., 79 Conn 427, 65 A 289; Graham v Smith, 100 Ga 434, 28 SE 225; State ex rel. Curtis v Topeka, 36 Kan 76, 12 P 310; State v M'Duffie, 34 NH 523; Fox v Mohawk & H. R. Humane Soc., 165 NY 517, 59 NE 353; State v Lymus, 26 Ohio St 400; McCallister v Sappingfield, 72 Or 422, 144 P 432. The rights of an owner were often spoken of as being "qualified property rights." Thiele v Denver, 135 Colo 442, 312 P2d 786.

9. ⁹ Bugai v. Rickert, 258 Mich. 416, 1932 Mich. LEXIS 1289 (Mich. 1932).Whether the property in dogs was regarded as qualified or absolute, they were subject to the police power of the state, and may be destroyed, as in the judgment of the legislature was necessary for the protection of its citizens.

10. ¹⁰ State v. Sanders (Sept. 29, 1995), 2d Dist. Nos. 95 CA 11, 95 CA 12, 1995 WL 634371, at 6.

11. ¹¹ Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

12. ¹² Gates v. City of Sanford, 566 So.2d 47 (Fla 5th DCA 1990); U.S. Const. Amend. V. Pursuant to police power, governments may enact ordinances or statutes reasonably necessary for the protection of public health, safety, welfare, or morals of their communities and if necessary, these ordinances may interfere with otherwise protected rights so long as interference bears reasonable relationship to public need served.

13. ¹³ State v Peters, 534 So 2d 760, 13 FLW 2517, review den (Fla 1990); Singer v Cincinnati ,57 Ohio App 3d 1, 566 NE2d 190 (Hmltn. Co 1990) (holding that an ordinance prohibiting the owning, keeping, or harboring of "pit bull terriers" within municipal limits does not violate equal protection or #due process guarantees under a "rational basis" test when the city's previous attempt to protect its citizens against pit bull attacks through legislation which regulated and constrained the possession of these dogs was ineffective).

14. ¹⁴ People v. Arroyo, 2004 WL 433466 (N.Y.City Crim.Ct.,2004); Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965).

15. ¹⁵ Id.

16. ¹⁶ Sentell v New Orleans & C. R. Co., 166 US 698, 41 L Ed 1169, 17 S Ct 693; (1897).(to recover the value of a Newfoundland dog, known as 'Countess Lona,' alleged to have been negligently killed by the railroad company. The company denied the allegation since the owner had failed to follow ordinance in regards to the dog.)

17. ¹⁷ Gibson v. Harrison , 63 S.W. 999 (Ark. 1901). Knox Gibson was convicted before the mayor of the town of Harrison for failing to pay a dog tax, and appealed . His conviction was affirmed. There was an annual fee of $1.50 to prevent dogs from running loose.

18. ¹⁸ Id.

19. ¹⁹ Nicchia v New York, 254 US 228, 65 L Ed 235, 41 S Ct 103, 19 Ohiolr 2, 13 ALR 826 (1920).

- Danialle Leach-Riggins

 Printed in The Evidence - April 2004 Vol. 1 Issue 1