By Meghan Curriesummer partner at Fox Rothschild LLP, based in the firm’s Princeton office
A recent bill, A2354, introduced in February of this year by New Jersey lawmakers should be at the forefront of any New Jersey pet owner’s mind. The bill proposes amendments, strengthening the existing Animal Cruelty Act 4:22-17, which deals with animal cruelty violations. The bill was introduced in the previous legislative session as A6099, but never passed.
These additional provisions would significantly raise the stakes and make the repercussions of breaking the law much more extreme. Although on the face of it this appears to be a well-meaning bill aimed at holding animal abusers accountable for the mistreatment of pets, the bill also has the potential to significantly erode pet owners’ rights. pets and service animals, falsely accused of animal cruelty, statewide.
If passed, the bill will affect owners of companion and service animals (to put it briefly, “dog owners”) and people in possession of dogs at the time of seizure , if the owner is unknown. If an animal welfare agency can demonstrate by a preponderance of evidence that an animal was taken into custody either to protect the animal from harm or to provide necessary medical care, that owner or caregiver may having to pay potential expenses, may be separated from the dog for an extended period, the animal may be temporarily placed in a kennel, shelter, or even foster home, and in some cases the dog may be euthanized without the owner’s consent if deemed necessary by a veterinarian. In addition, the bill grants officers permission, in certain cases, to enter private residences and seize dogs without court approval or a warrant. The concern here is that these officers may not be sufficiently trained to identify emerging or other animal care needs, allowing them to unilaterally seize dogs, with their decision potentially having a significant impact on the dog owner. .
If the bill were to pass, indigent owners could potentially have their pets seized inappropriately and be forced to pay large sums of money to get their pet back, essentially allowing financial circumstances to dictate whether one should whether or not to abandon their seized pets. The expenses for which one may be held responsible due to seizure can encompass a wide range of areas. These “reasonable costs of care” include: (1) the costs of housing, food, water and bedding needed to house an animal, (2) the costs of care needed to improve psychological well-being of an animal, including, but not limited to, training and enrichments designed to provide mental and physical stimulation, and (3) the costs of necessary veterinary care for an animal, including, but not limited to , surgeries, medications, vaccinations, euthanasia and disposal costs, as determined necessary by a licensed veterinarian.
“An animal care agency that takes in an animal under section 5 of the PL, c. (C.) (pending before the Legislature as this bill), or an authorized officer of the animal welfare agency, including an attorney prosecuting an animal cruelty violation on behalf of a municipality or county, may, not later than 20 days after the animal is taken into custody, bring an action in Superior Court claiming reimbursement of the animal’s reasonable costs of care for the animal or, if the owner is not known to the claimant, to the person from whom the animal was taken and . . . if the owner of the animal or the person from whom the animal was taken fails to pay a portion of the reasonable costs of care for the animal, as determined by the court, when due, the ownership of the animal is immediately transferred to the animal care agency with custody of the animal.” A2354 (emphasis added).
A pet owner’s inability to pay potentially exorbitant expenses to care for an animal outside of their home should not form the basis for involuntary confiscation of an animal. If the court determines that an owner has failed to provide the animal with “necessary care”, such behavior could be a violation of applicable law which results in monetary penalties and/or imprisonment AND the reimbursement of all expenses for food, drink, shelter, or veterinary care or treatment, or other expenses. . . incurred by any agency, entity or organization investigating the breach. . . [or] a local or state government entity, or a kennel, shelter, pound, or other facility providing housing and care for the animal or animals involved in the violation. NJSA § 4:22-17(f).
With these current arrangements, it is unclear why the proposed additional and draconian financial regime is necessary.
The bill would expressly authorize the following penalties, which are already at the discretion of the court: Upon conviction of the owner for an animal cruelty violation, an animal welfare agency may apply to the court for confiscation of the dog and may enact a period of time until the discretion of the court, detailing the length of time that anyone found guilty of aiding, abetting, or conspiring with the owner in the abuse of dogs shall not be permitted to own a pet or being under the care or control of a dog.
Conversely, if a court determines that the dog was seized and the plaintiff was unable to show by a preponderance of evidence that the dog was taken for his protection or immediate medical attention, the defendant will not be responsible for the reasonable costs of care, but his dog will not be returned until the end of the investigation and the criminal procedure. The defendant would remain responsible for the costs of necessary veterinary care provided, although the bill does not currently allow for an independent veterinarian to determine what care is required.
This bill is problematic since law enforcement officers are responsible for determining an animal’s health status, a determination that is generally beyond the scope of law enforcement. As a result, not all animal seizures made are legally valid. For example, in State v. Dekins A Washington woman’s dogs were seized after neighbors complained that she did not properly confine them. No. 29532-0-III 2012 WL 3861275 (Wash. Ct. App. September 6, 2012). The Washington Court of Appeals overturned his conviction for second-degree animal cruelty. But even though her dogs were returned to her, she still had to pay the cost of care, in her case $22,000, provided by SpokeAnimal, a humane society.
States such as New Hampshire have attempted to address this issue by creating a Cost of Care Fund to cover expenses associated with animal care while an animal cruelty lawsuit is pending. The commissioner of the various state departments may accept donations to care for animals and make the necessary disbursements to pay for necessities. If individuals are found guilty of animal cruelty and are ordered to pay restitution, the payment would be refunded to the ministry that originally awarded the funds. However, if the individual is not found guilty, he will not have to pay a large sum of money to get his animal back.
The constitutionality of some animal seizure laws has been successfully challenged in other states. In Humane Soc. Marshall County vs. Adams, So.2d 150 (1983), the Alabama Supreme Court held that the Alabama Animal Seizure Act was unconstitutional because it violated the due process rights of individuals by allowing officers to – at their sole discretion – seize an animal and deprive an individual of their interest in the animal, while simultaneously finding them liable for treatment costs determined solely by Humane Societies. Other states like Colorado and West Virginia have found similar legislation problematic for similar reasons. See Anderson v. george, 233 SE2d 407, 409 (W.Va.1977); Jenks v. stump, 41 Col. 281, 286–88, 93 pp. 17, 19 (1907).
Animal cruelty is wrong, but accusations of animal cruelty aren’t always valid. Proposed Bill A2354 should be amended to protect pet owners who may be wrongfully or wrongfully charged under the Animal Cruelty Act, but who would be forced to confiscate their animals if they are not unable to pay court-approved care fees by another entity while their animals are not in their care.[View source.]