Coballes v. Spokane Cnty.

• Citation: 274 P.3d 1102
• Decision Date: 26 April 2012
• Docket Number: No. 29970–8–III.,29970–8–III.
• Parties: CherryAnn COBALLES, Appellant, v. SPOKANE COUNTY; Spokane County Board of Commissioners; Spokane County Hearing Examiner; Spokane County Regional Animal Services, Respondents.
• Court: Court of Appeals of Washington

274 P.3d 1102

CherryAnn COBALLES, Appellant,

v.SPOKANE COUNTY; Spokane County Board of Commissioners; Spokane County Hearing Examiner; Spokane County Regional Animal Services, Respondents.

No. 29970–8–III.

Court of Appeals of Washington, Division 3.

April 26, 2012.

Adam Phillip Karp, Animal Law Offices, Bellingham, WA, for Appellant.

David W. Hubert, Attorney at Law, Spokane, WA, for Respondents.

SIDDOWAY, A.C.J.

¶ 1 CherryAnn Coballes seeks to appeal a superior court decision affirming Spokane County's determination that her dog, Gunnar, is a dangerous dog. We hold that a party appealing a dangerous dog declaration in superior court is not entitled to a second appeal as a matter of right in the Court of Appeals. We grant leave to Ms. Coballes to submit a motion for discretionary review under RAP 2.3(d) in lieu of her attempted appeal of right.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On a morning in September 2010, Emmalin C., age 3, was visiting the home of CherryAnn Coballes when she wandered into the bedroom of Ms. Coballes' 14–year–old son. His bedroom door was closed because he had the family's dogs, Gunnar and Sadie, in his room. Gunnar, a neutered male Rottweiler/Alaskan Malamute mix was then three years old and weighed 115 pounds. Because of Gunnar's tendency to be somewhat aggressive and jump on visitors, the family kept him in the boy's room when they had guests. Emmalin had been warned not to enter.

¶ 3 She nonetheless did enter, and when she did Gunnar attacked her, biting her several times on the top and upper sides of her head. Ms. Coballes and Emmalin's father responded immediately to the sounds of Gunnar's growls and Emmalin's cry and helped Ms. Coballes' son restrain the dog so that Emmalin could be carried out of the room. They took her to Sacred Heart Medical Center where she was admitted to the pediatric intensive care unit and underwent surgery. She was released from the hospital after a few days.

¶ 4 Sacred Heart filed an animal bite incident report with the Spokane County Regional Animal Protection Service (SCRAPS), a department established by the county's board of county commissioners to administer and enforce animal control provisions of the county code. Spokane County Code (SCC) 5.04.020(3). SCRAPS issued a dangerous dog declaration to Ms. Coballes. Animal control officer Chad Scheres served it on Ms. Coballes and explained its implications, including that he would have to impound Gunnar. Ms. Coballes surrendered Gunnar and filed an appeal.

¶ 5 An evidentiary hearing was held before a hearing examiner, who concluded that Gunnar had properly been declared dangerous within the meaning of the county code. The board of county commissioners adopted the hearing examiner's recommendation.

¶ 6 Ms. Coballes then commenced an action in superior court, filing a “Petition for Judicial Review by Statute [SCC 5.04.032], Constitutional Writ of Certiorari and/or Statutory Writ of Review [Ch. 7.16 RCW].” Clerk's Papers (CP) at 1 (alterations in original). In the petition Ms. Coballes asserted “a statutory right of appeal under [the county code], statutory writ of review and/or constitutional writ of certiorari.” CP at 2. A notice sent to the county defendants on the same day stated, “You are hereby notified that the plaintiff ... has petitioned the Superior Court for a writ of certiorari and writ of review.” CP at 7.

¶ 7 Two weeks later, Ms. Coballes filed an “Ex Parte Motion for Writ of Review, Assignment of Judge, and Waiving Bond.” Her motion made no mention of a statutory right to appeal the board's decision to superior court, stating instead:

There exist two avenues to obtain judicial review of a hearing examiner/board of commissioner's decision—(1) a statutory writ of review under RCW 7.16.040 and RCW 36.32.330 (statutory certiorari); and (2) discretionary review under the court's inherent and constitutional power ( constitutional writ of certiorari ).

CP at 10 (emphasis added). She represented that she had no right to a direct appeal and contended that “the writ of review presents the proper avenue for judicial review of [the board's] determination upholding the Examiner's recommendation.” CP at 11. In later proceedings, Ms. Coballes made no mention of a statutory right to appeal under RCW 36.32.330.

¶ 8 The superior court denied Ms. Coballes' petition. She appeals, assigning error to the burden of proof applied by the hearing examiner; she also contends that the hearing examiner made arbitrary and capricious findings of fact and misapplied the law to the facts, that the county committed an unlawful warrantless seizure of Gunnar, that the county's order limiting her ability to sell Gunnar was ultra vires, and that the county's dangerous dog regulations conflict with state statute. Br. of Appellant at 5.

¶ 9 We identified a threshold procedural issue and requested additional briefing. The underlying proceeding—the dangerous dog adjudication—had already been subjected to, or was eligible for, one appeal in superior court. A second appeal of right in our court, and with the prospect of further discretionary review by the Supreme Court, would be beyond the appellate review available in other civil and criminal proceedings. With this opinion we address only this threshold issue: whether appeal of right is available in this case.¹

ANALYSIS

I

¶ 10 We asked the parties to respond to three questions, the first being whether Ms. Coballes had a statutory right to appeal the board's decision to superior court pursuant to RCW 36.32.330. Ms. Coballes answers that if she did, it was not clear. We disagree. She had a statutory right to appeal to the superior court, whose decision on such an appeal is subject to only discretionary review.

¶ 11 Chapter 5.04 of the Spokane County Code contains the county's animal control regulation of dogs and cats, including its controls for errant animal behavior. SCC 5.04.010. The code regulates “dangerous dogs,” defined by the code to mean any dog that

(a) inflicts severe injury or multiple bites on a human being without provocation on public or private property, (b) inflicts severe injury, multiple bites, or kills an animal without provocation while the dog is off the owner's or keeper's property, or (c) has previously been found to be potentially dangerous, the owner or keeper having received notice of such and the dog again aggressively bites, attacks, or endangers the safety of humans or animals.

SCC 5.04.020(8). When the county's animal control director has sufficient information to determine that a dog meets this definition, it is required by the county code to declare the dog dangerous and notify the owner of a right to appeal the declaration. If the result of an appeal is that the board of county commissioners sustains the finding that the dog is dangerous, then the dog will be euthanized unless the owner or keeper complies with requirements imposed by the county code. SCC 5.04.032(3). The requirements include spaying or neutering the dog, confining the dog in an approved enclosure clearly posted to give notice that the dog is dangerous, having a microchip implanted for identification, obtaining an approved muzzle and leash, and acquiring a surety bond or liability insurance in a form acceptable to SCRAPS providing at least $250,000 coverage for any personal injury or property damage caused by the dog. RCW 5.04.035.

¶ 12 The administrative process for protesting the director's dangerous dog declaration begins with a timely request for appeal, after which an administrative hearing is conducted by the board of county commissioners or its designee; in this case, by a hearing examiner. SCC 5.04.032(2). The hearing officer's recommendation is reduced to writing and is submitted to the board along with the electronic and documentary record. The board may accept, reject, or modify the recommendation of the hearing officer and renders its decision in writing. Id.

¶ 13 Where, as here, a dangerous dog finding is upheld by the board, the owner or keeper of the dog may appeal the board's decision “in the manner provided under the general laws of the state.” SCC 5.04.032(4), (5). Chapter 36.32 RCW, dealing with county commissioners, provides at RCW 36.32.330:

Any person may appeal to the superior court from any decision or order of the board of county commissioners. Such appeal shall be taken within twenty days after the decision or order, and the appellant shall within that time serve notice of appeal on the county commissioners.... The practice regulating appeals from and writs of certiorari to [district courts ²] shall, insofar as applicable, govern in matters of appeal from a decision or order of the board of county commissioners.

(Emphasis added); see also Ronken v. Bd. of County Comm'rs, 89 Wash.2d 304, 309, 572 P.2d 1 (1977) (“[A] statutory right of appeal from a decision or order of the board of county commissioners exists under RCW 36.32.330.”).

¶ 14 The right of appeal provided by RCW 36.32.330 is available in all situations where the board is “acting on its ordinary and usual duties,” but has been held not to apply when the board is acting pursuant to special statute imposing a different, additional duty, such as when it acts in zoning matters. Sterling v. County of Spokane, 31 Wash.App. 467, 469–70, 642 P.2d 1255 (1982). This distinction for “duties pursuant to special statute” generally applies when a county board acts pursuant to special state statutes. See Lawry v. Bd. of Comm'rs of Snohomish County, 12 Wash. 446, 448, 41 P. 190 (1895) (recognizing that appeal would not lie when the board of commissioners “acts as the representative or agent of the legislature”); Adams County v. Scott, 117 Wash. 85, 90–91, 200 P. 1112 (1921) (same proposition); State ex rel. Lyon v. Bd. of County Comm'rs, 31 Wash.2d 366, 370–71, 196 P.2d 997 (1948) (appeal was not available where board acted or purported to act under state statute regulating regional planning).

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