Request By:
Mr. John R. Graham
Humane Associations of Kentucky
P.O. Box 131
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the enforcement of the provisions prohibiting cruelty to animals. You state that there are occasions when animals are being starved or otherwise cruelly treated. A peace officer, an authorized officer of a humane society or a veterinarian may have observed these animals. Your organization has encountered difficulties in preventing the suffering of mistreated animals because of problems in removing the animals from the harmful environment.
You have sometimes been able to successfully argue that where a peace officer observes a mistreated animal, the animal should be seized and protected. Even when this argument has been successful, problems have still arisen as to who will pay the feed and boarding expenses of the seized animals. In some situations the mistreated animals are in such desperate circumstances that euthanasia seems to be the appropriate remedy.
You ask what statute can be cited to support a request for the seizure of a mistreated animal. You ask about possible liability and litigation where a verterinarian recommends that an animal be put to sleep. You ask how long an animal must be held before ownership can be awarded to another party where a court has ordered that an animal be seized. Another question concerns what particular person has the responsibility for the proper care and treatment of animals (the owner or the person who actually has custody of the animals) .
KRS 525.130 concerning cruelty to animals provides in part that a person is guilty of cruelty to animals when, except as authorized by law, he intentionally or wantonly subjects any animal to or causes cruel or injurious mistreatment through abandonment, causing it to fight for pleasure or profit, mutilation, beating, torturing, tormenting, failing to provide adequate food, drink, space or health care or by any other means; or subjects any animal in his custody to cruel neglect; or kills any animal.
KRS 257.100 concerning the destruction of a suffering and abandoned or hopelessly diseased or injured animal states in part as follows:
"(1) Any peace officer or any officer of the accredited humane society or society for the prevention of cruelty to animals may destroy or kill or cause to be destroyed or killed, any animal found abandoned and suffering and not properly cared for, or appearing to be injured, diseased or suffering past recovery for any useful purpose.
(2) Before destroying the animal the officer shall obtain the judgment to that effect of a veterinarian, or of two (2) reputable of a verterinarian, or of two (2) reputable citizens called by him to view the animal in his presence, or shall obtain consent to the destruction from the owner of the animal. "
Note also the definition of the word "abandon" in KRS 257.100(4):
"For the purpose of this section, the term 'abandon' shall mean to forsake entirely, or to neglect or refuse to provide or perform the legal obligations for care and support of an animal by its owner, or his agent. Such abandonment shall constitute the relinquishment of all rights and claims by the owner to such animal. "
Thus, if peace officers and officers of humane societies follow the provisions of KRS 257.100 in connection with the destruction of suffering and abandoned or hopelessly injured or diseased animals, neither the officers nor the veterinarians whose professional judgment they have sought should encounter any serious problems.
While there is a statutory mechanism to handle the matter of the destruction of suffering and abandoned or hopelessly injured or diseased animals, there are no specific statutory procedures relative to the confiscation or seizure of mistreated animals. In 4 Am. Jur. 2d Animals § 30, the following appears in connection with the seizure or destruction of mistreated animals:
". . . But the grant of power to an officer of a humane society to take charge of any abandoned or mistreated animals, to provide them with food, and to detain them until expenses are paid, without restricting the authority of the officer to cases of emergency or public necessity, and without providing any notice to the owner or an opportunity for a hearing, has been held to be unconstitutional as permitting a deprivation of property without due process. Similarly, the decisions upon the validity of statutes providing that societies for the prevention of cruelty to animals may kill or cause to be killed any animal found neglected or abandoned, or which is injured or diseased past recovery, or, by age, has become useless, are to the effect that, except in emergencies, the owner of the animal is entitled to notice and a hearing to contest the existence of the statutory cause for the destruction of the animal, and that statutes not requiring such notice or hearing, irrespective of an emergency, are void as authorizing a procedure, that necessitates the taking of the property of the citizen without due process of law."
In 3A C.J.S. Animals § 115 it is stated in part as follows:
". . . The statutes of some states have given to any officer of these societies the right under specified conditions to kill or cause to be killed any animal found not properly cared for, diseased or injured past recovery, or unfit for any useful purpose; however, neither the suffering or distressed condition of the animal, nor the misconduct or delinquent attention of the owner, will justify the seizure or killing unless the facts relied on actually exist as prescribed by a lawful statute. . . .
No statute can confer authority to destroy an animal without providing for notice to the owner and a right to be heard in a judicial or other similar proceeding except where there is an emergency or the public interest requires immediate action. The rule requiring notice and hearing applies not only to a statute authorizing destruction of an animal but also to a statute authorizing sale of the animal. "
See also 8 ALR 67 dealing with the destruction of animals.
In
Anderson v. George, W.Va., 233 SE.2d 407 (1977), an action was brought to recover possession of cattle seized by a deputy sheriff and a designated humane officer. The animals had been seized pursuant to a state statute which permitted animals to be seized and detained when they are found abandoned, neglected or cruelly treated. The court, in reference to the due process concept, said in part as follows at page 408 of its opinion:
"Nonetheless, regardless of flexibility, before there can be any final adjudication of his property rights, a person must be afforded notice and a reasonable opportunity to be heard.
State v. Blevins, 131 W.Va. 350 at 361, 48 S.E.2d 174 at 182 (1948). Such hearing may be held before or after seizure, depending on the circumstances, as mere postponement of the judicial inquiry is not a denial of due process in every situation.
Phillips v. Commissioner, 283 U.S. 589, at 596-597, 51 S. Ct. 608, 75 L. Ed. 1289 (1931);
Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S. Ct. 870, 94 L. Ed. 1088 (1950); and
Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974)."
In absence of any statutory provisions relative to the seizure of mistreated animals by police or humane society officers, we have serious doubts as to the validity of such procedures at this time. If such officers do undertake to seize animals in emergency situations, the owners of the seized animals should be notified and given the opportunity to appear at a hearing in an attempt to satisfy the due process requirements.
In connection with who is responsible for the proper care and treatment of animals and who may incur liability for violations of the recognized standards of care and treatment, we direct your attention to 3A C.J.S. Animals § 107. The statutes prohibiting cruelty to animals apply equally to owners and to other persons and thus when cruelty is charged the ownership of the animals involved is immaterial. In the absence of statutory requirements to the contrary, liability in connection with cruelty to animals exists without regard to ownership of the animals and may extend to the acts of agents, servants, employes or the person in whose custody the animal has been placed. See also 82 ALR 2d 794 dealing with cruelty to animals.
We cannot answer your question as to how long an animal must be held when its seizure is authorized by a court order as there is no specific statutory procedure concerning the seizure of mistreated animals. Furthermore, we do not know whether a hearing was held and we do not know any of the factual circumstances of that particular situation of animal mistreatment and cruelty.