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STATE VS COWAN

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State v. Cowan, 2004-Ohio-4777.

Portage App. Nos. 2002-P-0029, 2002-P-0030 and 2002-P-0031, 2003-Ohio-3547. Judgment affirmed.

Resnick, F.E. Sweeney, Pfeifer and Lundberg Stratton, JJ., concur. Moyer, C.J., dissents with opinion. O'Connor, J., dissents. O'Donnell, J., dissents with opinion.

[ OPINION ]

In a 4-3 decision announced today, the Supreme Court of Ohio struck down as unconstitutional a state statute that imposed criminal penalties on owners of vicious and dangerous dogs who fail to buy liability insurance and take special steps to restrain and confine their animals. The decision upheld a ruling by the 11th District Court of Appeals that the law violated a dog owner's procedural due process rights by not providing for an administrative hearing at which the owner could contest a dog warden's determination that her animals were “dangerous or vicious” and thus subject to special restrictions.

The case arose from an October 2001 incident in which Margaret Maurer of Ravenna was attacked and severely bitten in the driveway of her home by two dogs that her husband identified to the local dog warden as the German shepherds owned by a neighbor, Janice Cowan. When the warden went to Mrs. Cowan's home to investigate, she denied that her dogs had been out of their own yard. The warden advised Mrs. Cowan that she believed the Maurers' version of events, and believed that Mrs. Cowan's dogs were “dangerous” as that term is defined in state law. The warden then gave Mrs. Cowan a verbal warning and printed information about the state law (R.C. 955.22) that requires owners of “dangerous and vicious dogs” to have liability insurance and take special measures to confine and restrain their animals or face criminal prosecution.

In November 2001 and again in January 2002, the dog warden received new complaints from neighbors that Mrs. Cowan's dogs were running loose in the neighborhood. Upon investigation, the warden found the dogs in Cowan's yard but not restrained in accordance with the statutory requirements. In response to the third complaint, the warden filed charges against Mrs. Cowan in Trumbull County Municipal Court for violations of the statutory restraint, confinement and insurance requirements applicable to owners of dangerous or vicious dogs.

After a trial during which Mrs. Cowan claimed innocence on the basis that her dogs had not attacked Mrs. Maurer and therefore did not meet the statutory definition of “vicious and dangerous,” a jury found her guilty of all charges and the court imposed penalties including fines and a jail sentence. The court also ordered Mrs. Cowan to either post a bond or surrender the dogs to the dog warden. Bond was not posted and the dogs were subsequently seized by the warden and later destroyed when an alternative home could not be found for them.

On review of the municipal court's decision, a three-member panel of the 11th District Court of Appeals voted 2-1 to vacate Mrs. Cowan's convictions on the ground that R.C. 955.22 was unconstitutional because it did not provide an opportunity for the accused to be heard on the issue of whether her dogs were “dangerous and vicious” prior to the imposition of significant expenses and restraints on her property.

Writing for the majority in today's decision, Justice Francis E. Sweeney Sr. affirmed the 11th District's holding that R.C. 955.22 violates constitutional due process rights and is therefore unenforceable.

Justice Sweeney cited federal and state supreme court decisions which have held that “at its core, procedural due process under both the
Ohio and United States Constitutions requires, at a minimum, an opportunity to be heard when the state seeks to infringe a protected liberty or property right. … Further, the opportunity to be heard must occur at a meaningful time and in a meaningful manner.” In this case, he observed, the dog warden made her decision that Mrs. Cowan's dogs were “dangerous or vicious” based on the unsupported word of the complaining parties, and the law provided Mrs. Cowan with no opportunity to present contrary evidence before substantial regulatory burdens were placed on her property. Justice Sweeney rejected arguments advanced by the state that Mrs. Cowan's due process rights were met because she had the opportunity to challenge her dogs' classification at her trial, and agreed with Mrs. Cowans' argument that delaying this challenge until she faced criminal charges “does not offer her a meaningful opportunity to be heard before her property rights have been infringed by state action.”

“Once the dog warden made the unilateral decision to classify appellee's dogs as vicious, R.C. 955.22 was put into effect and restrictions were placed upon appellee and her dogs,” wrote Justice Sweeney. … “We find it inherently unfair that a dog owner must defy the statutory regulations and become a criminal defendant, thereby risking going to jail and losing her property, in order to challenge a dog warden's unilateral decision to classify her property.”

The majority opinion was joined by Justices Alice Robie Resnick, Paul E. Pfeifer and Evelyn Lundberg Stratton. Chief Justice Thomas J. Moyer and Justice Terrence O'Donnell entered separate dissenting opinions, both of which were joined by Justice Maureen O'Connor. In an extensive dissent, Chief Justice Moyer said the statute in question “is not unconstitutional either on its face or as applied,” and disputed the majority's implication that it is the determination by a dog warden that a dog is “vicious or dangerous” that triggers an owner's duty to comply with the statutory restraint, confinement and insurance requirements. “R.C. 955.22 does not vest a dog warden with authority to conclusively label any particular dog as vicious or dangerous,” wrote the Chief Justice. “(The statute) does not even mention dog wardens … (n)or does it establish any procedural framework, let alone an unconstitutional one.”

Instead, he wrote that the vicious dog statute – like state traffic laws – imposes certain duties on certain property owners under pain of criminal prosecution whether or not a law enforcement officer has previously issued them a warning or placed their name on a watch list for future scrutiny. “The majority states that it is unfair for a dog owner to be put in a position where he or she ‘risk[s] going to jail and losing her property, in order to challenge' a dog warden's decision that a dog is vicious,” wrote the Chief Justice. “However … That is the nature of every law enforcement warning. In every criminal prosecution some person initially determines that the accused has violated a statute … and makes a charge in accord with that determination.”

Justice Moyer described the role of the dog warden in this case as no different than that of a police officer who warns a vehicle owner that her car's muffler does not meet legal standards, and later issues a citation to that motorist upon finding that the offending muffler has not been repaired or replaced. “Certainly the officer would not be required to provide the motorist with an administrative hearing prior to ‘classifying' her as the driver of a statutorily noncompliant vehicle and informing her of the requirement of the law – even if the driver thereafter must expend her financial resources to repair or replace the muffler to avoid the risk of prosecution,” he wrote.

In a separate dissent, Justice O'Donnell wrote that it was the judgment of a jury after due process, and not a unilateral determination by the dog warden, that resulted in Mrs. Cowan's loss of property. “… (N)othing prevented Cowan from seeking a temporary order or other stay of any determination of the dog warden pending trial … Here, Cowan had a full opportunity at trial to contest charges that she owned vicious dogs. And prior to trial, she had the opportunity to contest allegations regarding the confinement of her animals had she chosen to do so. She did not,” wrote Justice O'Donnell.

“Requiring these dogs to be secured pending trial is not denial of due process, but rather a reasonable measure designed to maintain neighborhood safety pending trial,” he concluded. “Accordingly I would reverse the judgment of the appellate court.”

Contacts: Victor V. Vigluicci and Pamela J. Holder, 330.297.3850, for the state of
Ohio
. Erik M. Jones, 330.376.7500, for Janice Cowan.

Please note: Decision summaries are prepared by the Office of Public Information for the general public and news media. They are not to be considered headnotes or syllabi of Supreme Court opinions. Full court opinions from 1992 to the present are available online from the
[ Reporter of Decisions ]

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