Mansour v. King County

• Decision Date: 23 January 2006
• Docket Number: No. 55292-9-I.,55292-9-I.
• Citation: 128 P.3d 1241,131 Wn. App. 255
• Court: Washington Court of Appeals
• Parties: Peter MANSOUR, Appellant, v. KING COUNTY, a municipal corporation; King County Animal Control and King County Licensing and Regulatory Services Division; and King County Board of Appeals, Respondents.

Page 1241

128 P.3d 1241

131 Wn. App. 255

Peter MANSOUR, Appellant, v. KING COUNTY, a municipal corporation; King County Animal Control and King County Licensing and Regulatory Services Division; and King County Board of Appeals, Respondents.

No. 55292-9-I.

Court of Appeals of Washington, Division 1.

January 23, 2006.

COPYRIGHT MATERIAL OMITTED

Adam P. Karp, Bellingham, WA, for Appellant.

John R. Zeldenrust, Office of the Pros. Attorney, Seattle, WA, for Respondents.

AGID, J.

¶ 1 King County Animal Control issued an order requiring Peter Mansour to remove his dog from King County or give her up to be euthanized. The King County Board of Appeals upheld that order, and the superior court granted summary judgment for the County affirming the Board. Mansour appeals, arguing the Board hearing violated his due process rights. 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.

¶ 2 Further, in order for Mansour, or any other pet owner, to effectively present his case and rebut the evidence against him, due process requires that he be able to subpoena witnesses and records. Because the Board refused to let him do so, he was prejudiced in his defense against the Animal Control order. Mansour also received insufficient notice because the Removal Order identified the wrong removal authority and did not inform him what Animal Control must prove at the Board hearing. We reverse the superior court's summary judgment order and remand to the Board of Appeals.

FACTS

¶ 3 Peter Mansour lives in Kirkland with his dogs, Maxine and Kobe. On September 25, 2002, King County Animal Control issued Mansour a Warning Notice stating that it had received a complaint about his dogs being loose in the neighborhood in violation of King County Code (KCC) 11.04.230. It instructed him to abate the violation by confining the dogs to his property at all times unless on a leash and to control excessive barking. The notice included boilerplate language in bold print that said: "All cases involving a bite or attack may result in the issuance of a Notice and Order of Confinement or Removal and a civil penalty." In response to the warning, Mansour increased the height of his backyard fence.

¶ 4 On May 27, 2003, Mansour went to work and left his dogs at home with his housekeeper, Shelly Miller. Miller testified that she let the dogs out into the backyard despite Mansour's instructions to keep them inside. A short time later Kobe ran back inside whining and looking out the window. Miller assumed Maxine had gotten out, and when she went out the front door she heard Maxine barking. She saw Maxine trotting towards the neighbors, Robert and Dioni O'Brien's, driveway. Maxine picked up the O'Brien's cat, Lacie, in her mouth, at which point Miller yelled, "Max, no," and Maxine put the cat down. Miller put Maxine in the house and then checked on Lacie, who was severely injured. Miller notified Mansour, who immediately left work and took Lacie to Juanita Veterinary Hospital.

¶ 5 On May 28, the O'Briens moved Lacie to Cascade Veterinary Specialists where Dr. Thomas Fry diagnosed her with a broken jaw, fractured and dislocated pelvis, and severe spinal cord damage. On May 30, Lacie was euthanized because of her extensive injuries. After the euthanization, Dr. Fry performed a more thorough examination and discovered that Lacie also had numerous puncture marks consistent with animal bites on opposite sides of her body.¹ He later testified that although the kind of fractures Lacie had often resulted from vehicular trauma, the punctures could not have resulted from an auto accident. Dr. Fry said the punctures were in an area consistent with the fractures, and animal bites could have caused the fractures on their own. The lack of abrasions and contusions indicated she had not been hit by a car.

¶ 6 Animal Control issued Mansour a Warning Notice that it had received a complaint that Maxine had exhibited "vicious propensities," and was a "[v]icious animal running" at large.² The notice contained the same boilerplate "bite or attack" language as the September 25, 2002 notice. On July 10, 2003, Animal Control issued a Notice and Order of Removal (Removal Order) to Mansour informing him that Maxine was in "violation of King County Code 11.04.290(b), in that [she] has bitten, attacked or endangered the safety of a human being or domesticated animal. . . ." It charged that Maxine was also in violation of RCW 16.08.090 "in that she has bitten, attacked or otherwise threatened the safety of a human being or domestic animal either on public or private property without provocation." Animal Control notified Mansour that "[a]nimals declared in violation of RCW 16.08.090 and/or King County Code 11.04.230 may be kept in King County only upon compliance with the requirements set by King County pursuant to King County Code 11.04.290." Because of the "severity of the incident and grave injuries to `Lacie' and in order to protect the public safety[,]" Animal Control ordered Mansour to remove Maxine from King County within 48 hours and have her microchipped. Failure to comply would result in Maxine's being disposed of as an unredeemable animal. Animal Control also fined Mansour $100.

¶ 7 Mansour appealed the Removal Order to the King County Board of Appeals (Board). Before the Board hearing, Mansour's attorney sought to subpoena and/or depose witnesses, and requested production of x-rays, post-mortem reports, chart notes, and Lacie's body for evaluation.³ The Board apparently denied these requests.⁴ At the hearing on October 29, 2003, the O'Briens testified that the dogs were a neighborhood nuisance, Maxine could still get over the fence, and that she had gotten out even after the Lacie incident.⁵ Dr. Fry testified via telephone. Mansour called Miller, who testified about the events of May 27, 2003. He also called his receptionist, Beckie Bonnell, who testified that Maxine stayed at her house several times and never acted aggressively towards her cats or any other cats in her neighborhood. Mansour testified about the May 27, 2003 incident, asserted that the O'Briens were severely overstating the extent of Maxine's bad behavior, and explained the steps he had taken to prevent problems with the dogs. The Board upheld the Removal Order. Mansour filed a writ of certiorari to the King County Superior Court, and the County moved for summary judgment. The court granted the motion and affirmed the Board's ruling.

DISCUSSION

¶ 8 Mansour asks us to determine what process a municipality must provide a dog owner before it significantly impacts his property interest in his dog.⁶ When we review a trial court's decision on a writ of certiorari, we are reviewing the "decision of the body that makes the findings and conclusions relevant to the decision."⁷ Both we and the trial court function in an appellate capacity, considering questions of law de novo and evaluating factual determinations under a substantial evidence standard.⁸ Substantial evidence is evidence sufficient to persuade a reasonable person of the truth of the finding.⁹ The substantial evidence standard "is deferential and requires the court to view the evidence and reasonable inferences in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority."¹⁰ Ultimately, we must determine whether the Board acted arbitrarily, capriciously, or contrary to law in upholding Animal Control's Removal Order.¹¹ We may also reverse the Board's decision when it is "clearly erroneous."¹²

I. Procedural Due Process

¶ 9 Mansour argues that the Board hearing did not meet minimum procedural due process requirements because the Board imposed an inadequate burden of proof on Animal Control and prevented him from subpoenaing records and witnesses. The County argues that Mansour had a contested hearing that followed Board rules. We determine de novo whether the hearing violated Mansour's due process rights.¹³

¶ 10 "`Procedural due process imposes constraints on governmental decisions which deprive individuals of "liberty" or "property" interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.'"¹⁴ In determining what process is due, a court weighs (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of that interest through the procedures used; (3) the probable value of additional procedural safeguards; and (4) the government interest involved.¹⁵ Due process essentially requires the opportunity to be heard "at a meaningful time and in a meaningful manner."¹⁶ The process followed meets minimum constitutional requirements when it provides a citizen with sufficient safeguards in a state action.¹⁷

A. Standard of Proof before the Board

¶ 11 Mansour argues that the Board did not even use a "mere preponderance" standard of proof, but rather simply acted in an appellate capacity to determine whether Animal Control's order was arbitrary and capricious. He asserts that the intermediate "clear preponderance" standard is required here, where there is a risk of erroneous deprivation of an invaluable family-type relationship tantamount to that at stake in a parental termination proceeding. The County argues that the Board correctly determined that Animal Control did not act arbitrarily and capriciously when it issued the Removal Order. It further contends that substantial evidence supported the Board's findings of fact no matter what standard of proof it used.

¶ 12 An adequate standard of proof is a mandatory safeguard.¹⁸ The standard of proof instructs the fact finder "`concerning the degree of confidence our society thinks he should have in the correctness of...