56) Due Process - Louisville

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
THE LOUISVILLE KENNEL CLUB, INC., ET AL. PLAINTIFF
v. CIVIL ACTION NO. 3:07-CV-230-S
LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT DEFENDANTS
ORDER

For the reasons stated in the Memorandum Opinion entered this date, IT IS HEREBY

ORDERED AND ADJUDGED:

2. Section 91.101 of the Louisville/Jefferson County Metro Government Code of Ordinances is declared unconstitutional insofar as it threatens to deprive pet owners of their property rights without a finding of guilt. Plaintiffs’ motion for summary judgment (DN 20) is GRANTED in this respect, and Metro’s motion for summary judgment (DN 27) is DENIED to the same extent. Metro is hereby enjoined from enforcing § 91.101 in the manner just described.



1 Ordinance No. 290, Series 2007, “An Ordinance Amending Chapter 91 of the Louisville/Jefferson County Metro Government Code of Ordinances (“Code”) Pertaining to Unaltered Dogs, the Waiver of Metro Animal Service
Fees Due to Financial Hardship, and the Quarantine of Animals (Amended by Substitution).” The Court will refer to this legislation as “the ordinance.”

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

THE LOUISVILLE KENNEL CLUB, INC., ET AL. PLAINTIFF
v. CIVIL ACTION NO. 3:07-CV-230-S
LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT DEFENDANTS

MEMORANDUM OPINION

………edited out other sections and only included those that apply to this….

One provision allegedly requires forfeiture of certain pets without adequate “procedural” Due Process. A fourth set of provisions, it is argued, authorize illegal warrantless searches and seizures of pet owners’ homes and property


………edited out other sections and only included those that apply to this….


III. Procedural Due Process
Plaintiffs claim that § 91.101 of the ordinance threatens a citizen’s right to a fair hearing before being deprived of property. Before delving into the governing jurisprudence, we think it wise to determine how the ordinance operates.
As with other sections of the ordinance in question, § 91.101 seems to be the victim of hasty drafting. Entitled “Confiscation of Victimized Animal,” its purpose is to allow the authorities to take possession of an animal that has been the victim of any of several forms of inhumane treatment.
These include (inter alia) failure to provide necessities, abandonment, mutilation, and “exhibition fighting.” Section 91.101(A) provides that an animal found involved in a violation of any of these prohibitions may be confiscated by an animal control officer, evidently for its protection.
Once an animal has been confiscated, subsection (B) provides for a hearing before a judge. That judge is to determine whether probable cause existed for the confiscation. If so, the owner must post a $450 bond within 24 hours to cover the cost of 30 days’ boarding and veterinary care for the animal, which remains in the city’s possession. A new bond must be posted every 30 days, and failure to do so results in immediate forfeiture of the animal. The ordinance does not say what happens if no probable cause is found, but the implication of the bond and forfeiture provisions, coupled with general background notions of justice, must be that absent probable cause the animal is to be returned to its owner.

Section 91.101(B)(1) goes on to provide that upon a plea or finding of guilt, the animal’s owner becomes responsible for all costs created by the impoundment. (That is, any bond he has posted is not returned, and he must pay any outstanding amount due.) Further, the animal in question becomes property of the city. If the accused is found innocent, subsection (B)(2) provides that any posted bond is to be returned to the owner. The ordinance does not explicitly provide for return of a seized animal if its owner is found to be innocent. Again, however, context leads the Court to conclude that returning the animal on a finding of innocence must have been the Metro Council’s intent. There is, first, the obvious fact that this is the just result of such an adjudication. In addition, it makes little sense for the government to return the posted bond—leaving it on the hook for all the animal’s expenses up to the acquittal—and then to hold onto the animal at its own further expense.

Finally, the last sentence of subsection (B)(1) states: “Upon conviction, all animals not forfeited pursuant to subsection (B) herein above shall become the property of the Metro Government.” This implies that, prior to conviction, ownership of the animal does not change. After an acquittal, then, the original owner retains his rights, and the city has no further basis for holding the animal.

The construction offered above solves two problems with § 91.101, allowing for the return of a confiscated animal upon a finding of either no probable cause or innocence (if the bond has been duly paid). But a third problem lingers. It is undoubtedly the case that the ordinance mandates permanent forfeiture of a seized animal if the judge finds probable cause and the owner fails to timely post the appropriate bond. This provision is evidently meant to ensure that the owner of a confiscated dog has an interest in posting the bond: If he could refuse to do so and then wait for an adjudication of guilt, he might never have to post before getting the dog back (if he is found innocent), or he might lose his ownership of the dog (if he is found guilty) and thus any incentive to pay the past-due boarding and veterinary costs. The result is that a person whose dog has been confiscated, and against whom there is probable cause that he violated one of the humane treatment requirements, will lose his dog permanently unless he posts bond, even if he is ultimately found innocent of the underlying charge. This possibility presents a legitimate due process claim.


Claims under the “procedural” arm of the Due Process Clause are governed by the balancing framework set up by Mathews v. Eldridge, 424 U.S. 319 (1976). Determining how much process is due in a given case involves consideration of three factors:
(1) “the private interest that will be affected by the official action”;
(2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”;and
(3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 335.

As plaintiffs argue, pet owners clearly have a property interest in their animals. See Bess v. Bracken County Fiscal Court, 210 S.W.3d 177, 180 (Ky. 2006) (recognizing that dogs are personal property). This interest is not absolute and is subject to regulation by state and municipal governments. Id. Nonetheless, the government is not permitted to deprive an animal owner of his property without due process of law. The question is not whether process is due, but rather how much is required.
We therefore inquire into the second prong of the Mathews test. As the procedure stands, the risk of erroneous deprivation of this property interest is significant. It is perfectly possible for a judge to find probable cause that a person has committed an offense, but for that person later to befound innocent. Under the scheme set up in § 91.101, if such a person was unable to put up $450 immediately upon the probable cause finding, his pet is forfeit and he has no apparent recourse for its recovery, even if he is ultimately found innocent of the underlying charge. There is thus a high risk of erroneous deprivation, which some sort of additional hearing, appeal, or late-payment process could remedy. Moreover, the government has little interest in keeping ownership of pets belonging to innocent citizens. Presumably most of the animals kept under this ordinance have to be euthanized, lest the burden of boarding and caring for them grow too high. The government does not articulate any interest whatsoever in its brief—it does not even cite Mathews—and the Court is unwilling to fabricate one. Consequently we must hold that the portion of § 91.101 that would permanently deprive a pet owner of his property, absent a finding of guilt, is unconstitutional.
It seems likely that § 91.101 is poorly drafted and does not properly represent the intent of its authors. However, this Court is not in the business of authoring or revising legislation. As a remedy for the constitutional failing just described, the Court will therefore enter an injunction against enforcement of the ordinance in the manner just described. Applications of § 91.101 that do not infringe the constitutional right to due process of law may continue.