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November News

  New York joins four other states with "best interests" of pets in divorce laws while Spain recognizes "co-caretakers" in pioneering divorce court ruling. On October 25, 2021, Governor Kathy Hochul signed A05775 into law (go to https://nyassembly.gov/ and enter the bill number in the search index to read the bill). The amends the domestic relations law by allowing court to determine the "best interest of such animal" in awarding possession of a companion animal. New York joins Alaska, California, Illinois, and New Hampshire as states with laws that allow companion animal considerations in marriage dissolution. Across the pond, a court in Madrid, Spain granted joint custody to divorcing spouses of a dog named Panda. One of the lawyers involved said the case was "pioneering" because the judge referred to the parties as "jointly responsible" and "co-caretakers" rather than just "co-owners." Some suggest that such changes to these laws both in the U.S. and abroad demonstrate a shift in the pets-as-property paradigm..

  Nevada and now New York pass legislation to prohibit discrimination based on dog breed by insurance companies. Over the summer, Nevada Governor Steve Sisolak signed SB 103 into law, which prohibits an insurer from refusing to issue, cancelling, refusing to renew or increasing the premium or rate for certain policies of insurance on the sole basis of the specific breed or mixture of breeds. On October 30th, New York Governor Kathy Hochul signed Senate Bill 4254, which states, “[w]ith respect to homeowners’ insurance policies . . . no insurer shall refuse to issue or renew, cancel, or charge or impose an increased premium or rate . . . based solely upon harboring or owning any dog of a specific breed or mixture of breeds.” Animal advocates contend that insurance breed bans were the result of sensationalized news stories on pitbulls from the 1980s. Other small dog breeds are statistically more aggressive and insurance claims for liability related to dog bites are actually a small percentage of all claims according to a NYS Animal Protection Federation white paper developed in support of the NY legislation (see also The Case Against Dog Breed Discrimination by Homeowners' Insurance Companies, 11 Conn. Ins. L.J. 1 (2004)). At least 22 other states have previously enacted such legislation.

   Texas passes Safe Outdoor Dogs Bill, which prohibits dogs from being left unattended or cruelly restrained outside. Senate Bill 5 was signed into law on October 29, 2021 by Governor Greg Abbott and goes into effect on January 18, 2022. Under the changes, owners will be barred from tying up their dogs outside with chains or weighed-down restraints. The length of an outdoor restraint must be 10 feet long or five times the dog’s length from nose to tail. The law removes the 24-hour waiting period before law enforcement can intervene that existed in the 2007 tethering law. The new law establishes a Class C misdemeanor violation for first-time offenders and a Class B misdemeanor for subsequent offenses. Owners must now provide "adequate shelter" to leave a dog outside, which includes protection from direct sunlight, drinking water, and sufficient space for dogs to avoid standing water and exposure to excessive animal waste.

News archives

Cases

Court erred in granting visitation for dogs after marriage dissolution. Matter of Marriage of Niemi, 496 P.3d 305 (Wash. Ct. App. 2021). Douglas Niemi appealed the trial court's order granting Mariah Niemi visits with their two dogs, which were awarded to Douglas as his separate property in a dissolution proceeding. Douglas and Mariah were married for 27 years and had two large dogs who were each about two years old. During the petition for legal separation, Mariah asked for 10 hours a week of visitation with the dogs because they were "family members." Following the trial, Mariah continued to emphasize her desire to have access to the dogs and the court ultimately awarded the dogs to Douglas as separate property, but allowed Mariah visits with the dogs three times a week. Douglas appealed that award, contending that the trial court abused its discretion by awarding visitation of his separate property. Mariah countered with the fact a court has discretion to grant her access to this "special classification" of property. Here, the Court of Appeals agreed with Douglas, finding that the lower court had no authority under Washington law to compel a party to produce separate property after a marital dissolution. The court also held that is not the province of the court to recognize a special category of personal property when the statute has not done so. Finally, the court observed that such agreements about visitation with animals would lead to continuing supervision and enforcement problems in the court system. Because the trial court exceeded its authority in awarding visitation rights, this court reversed and remanded the issue for the trial court to strike the provision related to visitation and maintenance costs for the dogs..

Dog fighting expert witness was qualified due to extensive experience and training in investigating dog fighting operations, regardless of college degree. Queen v. State, --- So.3d ----, 2021 WL 4471099 (Miss. Sept. 30, 2021). Defendant Tommie Queen was convicted of three counts of dog fighting contrary to Mississippi law. The resulting conviction began with in 2017 after a sheriff's officer received a call about dogs barking and possibly fighting. After being dispatched to defendant's property, the officer encountered multiple dogs on chains and dogs that were actively fighting each other. The officer obtained a search warrant and seized numerous items including heavy logging chains, bite sticks, intravenous (IV) bags containing saline, medicine bottles, vials of vitamins, muscle milk and other muscle-building items, several scales, and a treadmill. Approximately five or six badly injured dogs were taken to a veterinarian and humanely euthanized. Defendant was convicted on three of the nine indicted counts of animal fighting and sentenced to three years on each count to run consecutively. On appeal here, defendant raised three issues: (1) whether the trial court erred by tendering Kyle Held as an expert in the field of animal cruelty and dog fighting; (2) whether the State presented sufficient evidence to convict Queen of dog fighting; and (3) whether the trial court erred by denying Queen's motion to recuse. As to the first issue on qualification of the expert witness, the proffered expert, Kyle Held, had been employed by the ASPCA for approximately ten years as the director of investigations. Not only was Held certified by the National Animal Control Association, but he had investigated dog fighting operations "probably a few hundred" times according to his testimony. This included the largest organized dog fighting seizure in history. Moreover, Held indicated he testified in approximately 100 animal cruelty or animal fighting cases and has been qualified as an expert six times in previous dog fighting cases. While defendant argued that Held should not be qualified as an expert because he did not hold any college degrees, this court found that argument without merit. After dispatching the other two claims, Defendant's convictions and sentences were affirmed.

Excess transfer of dogs under PA Dog Law was single violation rather than continuing violation. Burkholder v. Department of Agriculture, --- A.3d ----, 2021 WL 4780651 (Pa. Commw. Ct. Oct. 14, 2021). In this Pennsylvania case, James Burkholder, d/b/a Whispering Spring Kennel (Burkholder), petitioned for review of an adjudication of the Secretary of Agriculture (Secretary) that imposed a $19,500 civil penalty on Burkholder for transferring two dogs in excess of the annual limit under his Class IV kennel license in December of 2017. Burkholder raises two arguments: first, the Dog Law does not specify that transfers of more than 60 dogs by a private kennel constitute violations; and two, the penalty imposed is excessive and unreasonable. This court first noted that a Kennel Class IV license clearly does not allow him to transfer more than 60 dogs and thus any transfers in excess violate the Dog Law. As to the excessive penalty argument, the court first examined the distinction between separate and ongoing violations of the Dog Law because it raised a question of first impression under the Dog Law. The problem here is that, where an owner has transferred more dogs than his license allows, there is no way to correct the violation. Thus, said the court, a per-day fine is improper. "Each unauthorized transfer of a single dog is a single violation of the Dog Law, not a continuing violation, because it is not ongoing in nature and such transfers can be feasibly segregated into discrete violations so as to impose separate penalties." The court concluded that the Department erred as a matter of law by imposing ongoing penalties for two discrete unauthorized transfers. The matter was remanded for further proceedings.

Case Archives

Articles

From Factory Farming to A Sustainable Food System: A Legislative Approach, Michelle Johnson-Weider, 32 Geo. Envtl. L. Rev. 685 (2020).

Backyard Breeding: Regulatory Nuisance, Crime Precursor, Lisa Milot, 85 Tenn. L. Rev. 707 (2018).

When Fido is Family: How Landlord-Imposed Pet Bans Restrict Access to Housing, Kate O'Reilly-Jones, 52 Colum. J.L. & Soc. Probs. 427 (Spring, 2019).

Does Every Dog Really Have Its Day?: A Closer Look at the Inequity of Iowa's Breed-Specific Legislation, Olivia Slater, 66 Drake L. Rev. 975 (2018).