K-9 Editions P.e.t.s

The Uncertain Present and Future of the Hayden Shelter Reform Legislation of 1998
Taimie Bryant1
Introduction
Six years ago, then California State Senator Tom Hayden introduced legislation to
move California’s animal shelter system further in the direction of saving, rather than
taking, animals’ lives. The bill was complex and involved changes in three different
California Codes: the Civil Code, the Food and Agricultural Code, and the Penal Code.
As introduced, it included a number of new provisions such as statutes that would
establish an official “policy preference” for adoption and expansion of the measure of
damages available to people when their animals are harmed. It consolidated and
restated requirements of shelters that were scattered in several different Codes, and it
secured better means of dealing with government seizures of animals and penalties for
conviction for animal abuse. As the bill progressed through the Legislature there were
modifications and losses of some of the bill’s provisions. However, it started and ended
its passage through the Legislature with many of its most significant provisions intact,
including making adoption of shelter animals the policy of the State of California.
There were several reasons to think that the time was right for the legislation.
Grassroots activism had eroded the belief that homeless animals are, by definition, a
public safety threat that justifies the animals’ immediate destruction. The idea had
taken root that, regardless of the circumstances that brought an animal to a shelter, the
animal himself or herself deserves an opportunity to live.
Attitudes about people who lose animals were also beginning to shift. More
people began to realize that a companion animal can be missing from home through no
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fault of his/her owner/guardian.2 In light of all the ways that animals can be lost,
allowing people a meaningful opportunity to reunite with their lost animals is
appropriate. Yet, in 1998, California had one of the shortest holding periods in the
country; shelters were required to hold dogs and cats only 72 hours from the time of
capture.3 Even much poorer states were giving people more time to reclaim their
animals. Moreover, the nonprofit sector animal rescue and adoption groups had
inspired optimism that our shelter animals could, in fact, find new homes and that it
was inhumane for our public shelters to deny them that opportunity.
Most of our public shelters were still acting like “pounds,” that is, places to
dispose of animals. However, some of the controversial “low-kill” and “no-kill” shelters
springing up around the state presented viable alternative models for responding to
homeless animals. Most notably, the nonprofit San Francisco/SPCA’s Adoption Pact
with San Francisco’s (public) Animal Care and Control had reduced that city’s homeless
animal kill rate to about 25% of impounded animals while many animal shelters in the
State were still killing about 75% of their impounded animals.4 By 1998 many nonprofit
animal rescue and adoption groups existed to find homes for animals who found their
way to shelters, but not all shelters were readily releasing animals to those groups.5
In the context of changing public attitudes and the rise of viable alternatives to
killing homeless animals, the statewide cost in 1998 of killing and disposing of homeless
animals could properly and accurately be characterized as “high” and “unnecessary.”
For all of these reasons Tom Hayden decided that the time was right to focus our animal
shelters on activities that save animals’ lives. Realizing that shelter issues themselves
are complex, he introduced Senate Bill 1785,6 which provided for consolidation and
restatement of existing provisions as well as introduction of new provisions so that
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homeless animals in our animal shelters could have a meaningful opportunity to survive
their stay in a shelter.
Hayden and the drafters aimed high. For example, the bill as introduced
included a significant expansion of the measure of damages available to a person if
someone harmed his/her animal. Hayden’s bill proposed to amend California’s Civil
Code section 1840 to provide for payments of damages for non-economic harms
suffered by people when their animals are harmed. Since animals are legally valued as
mere items of replaceable property, people whose animals are harmed by shelter
employees have been unable to receive awards of money in large enough sums to force
shelters to take their care obligations seriously. This is a general problem in enforcing
animal care obligations, so the legislation was broadly written so as to apply generally
rather than specifically to shelters. The reasoning behind it is that, even if the legal
obligations associated with care are extensive, if a negligent caretaker does not have to
pay very much for his/her negligence, those extensive care requirements might not be
met. If a caretaker’s negligence results in a damages award of only the market value of
the animal, there may be too little incentive to maintain appropriate standards of care.
An animal might be old or in fragile health and, therefore, have no market value. In
fact, many companion animals have little market value despite their great emotional
value. Since many shelters were lax about keeping these older or fragile animals, it was
important to create stronger incentives to keep these animals for the full holding period.
From February 18, 1998, until the very end of the legislative process, Civil Code
section 1840 read, as amended by the Hayden legislation, as follows:
Except as provided in Section 1834, the liability of a depositary for negligence
may not exceed the amount the depositary is informed by the depositor, or
has reason to suppose, that the thing deposited is worth except as to
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situations involving living animals. In those situations, the depositary may
be held liable for the financial and emotional consequences to the owner of
the depositary’s failure to comply with this section and the anticruelty
provisions of the Penal Code (language of Hayden proposal is emphasized).
The expanded damages provision lived a quiet, unthreatened life in the bill until the
very end, when, shortly before the bill would be voted on for the last time, the provision
was removed during negotiations between Hayden’s office, the Governor’s office, and
local government representatives. In response to concerns about its own heightened
liability for harm to animals in its care, local government requested and received
removal of the entire provision.7 Because economic incentives are important and
because animals in many caretaking situations are at risk of negligent treatment, the
drafters perceived this loss to be particularly significant. Yet, what remained was still a
cohesive package of provisions that could give our shelter animals a more meaningful
chance at surviving their stay in an animal shelter.
As the years have passed, critics have reduced the scope and significance of
Hayden’s legislation to “that legislation that only increased holding periods for shelter
animals.” And, from critics’ points of view, extending the holding period from 72 hours
to 4 or 6 business days merely delays the inevitable while exposing animals to illness,
caretaker negligence, and animal fighting in the meantime. Indeed, if the Hayden
legislation merely extended the holding period for animals in shelters, it could be seen
as minimally helpful to animals in our shelters. More important than length of holding
periods is the nature of the holding period. Can the public easily access the shelter?
Are animals sufficiently cared for so that they can be reunited with their families?
The reality of the Hayden legislation, as enacted, lies somewhere in-between its
optimistic starting point and current critical characterizations of it as a “mere holding
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period bill.” The purpose of this article is to explore what of the Hayden legislation
survives the legislative process, subsequent attempts to repeal it, and financial
wrangling over whether the State owes local government agencies money with which to
implement its provisions. In the end, some provisions that seemed to hold the least
promise seem now to hold the most potential for change. Other provisions that seemed
to hold the most promise have had, apparently, the least effect. Ultimately, perhaps the
most important lesson to be gained from the Hayden bill is the value of humility in
predicting the “success” or “failure” of different types of legislation to help animals.
Part I of this article describes what the Hayden legislation actually accomplished
on paper as enacted. Listing its provisions is relatively easy, but the history of
implementation has been fraught with conflict over how different provisions should be
interpreted. Part II examines the financial controversies that arose when local
governments contested the Legislature’s finding that the legislation was cost-effective
and that State funding was not required or necessary. Those financial controversies
have played out in two directions: (1) suspension of part of the legislation, and (2)
litigation about whether the State is legally obligated to fund the legislation. Part III
explains what parts of the Hayden legislation survived financial suspension. Anecdotal
evidence suggests that the spotty understanding and implementation of the Hayden
legislation that followed its enactment has only been worsened by the financial
controversies that have surrounded the legislation since its inception. Indeed, some
shelters are operating as though the entire Hayden legislative package has been
repealed, not partially suspended. Finally, in Part IV, I conclude with thoughts about
the legislation’s purpose and achievements in relation to the original intent of the
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drafters and in relation to social acceptance of the idea of shelters as depositaries of
animals who deserve a meaningful opportunity to leave those shelters alive.
Part I. Two Realities: One on Paper, One in the shelters.
A. The Hayden Legislation as Enacted
Before examining the implementation of its different provisions, it may be helpful
to present in list format what was legally enacted as the Hayden legislation. The Hayden
legislation, otherwise known as Chapter 752, Statutes of 1998, legally does the following:
a) creates a statewide policy preference for adoption and owner-redemption
(Civil Code sec. 1834.4.; Food and Agricultural Code sec. 17005; Penal Code sec. 599d);
b) makes explicit that shelters, including public shelters, are “depositaries of
living animals” (Civil Code secs. 1815, 1816) responsible for treating those animals
“kindly” (Civil Code sec. 1834);
c) requires that each animal brought into a shelter be held for a minimum of six
business days, unless the animal is available for adoption or owner-redemption on one
weekend day or one weekday evening. In that case, the animal must be held only 4 days
(Food and Agricultural Code secs. 31108, 31752, 31753);
d) describes required records that allow shelters (and their owners or
rescue/adoption groups) to track animals in the system (Food and Agricultural Code
sec. 32003);
e) requires shelters to give owner-relinquished animals who aren’t suffering
irremediably an opportunity for adoption or redemption instead of killing them
immediately, although it does not require shelters to take in owner-relinquished animals
(Food and Agricultural Code sec. 31754);
f) requires the same conditions of holding and care for animals other than cats
and dogs (Food and Agricultural Code sec. 31753);
g) requires shelters to release animals to Internal Revenue Code sec. 501(c)(3)
animal rescue and adoption groups that have requested an animal prior to his/her
euthanasia (Food and Agricultural Code secs. 31108, 31752, 31752.5, 31753, 31754);
h) requires shelters to maintain lost/found lists and to provide the names and
addresses of other shelters in the area (Food and Agricultural Code sec. 32001);
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i) requires shelters to use all reasonable means of checking for owneridentification,
including microchips, when animals come into the shelter (Penal Code
sec. 597.1 (l));
j) allows involuntary gratuitous depositaries to accept freely offered rewards
(Civil Code sec. 1846);
k) allows a judge to prohibit a convicted animal abuser from owning animals as a
condition of probation (Penal Code sec. 597.1);
l) requires the provision of pre or post-seizure (of one’s animal) hearings if an
owner requests one (Penal Code sec. 597.1);
m) provides that a standardized protocol be used to determine whether a cat is
truly feral before denying a cat the benefit of the longer holding periods enacted in the
Hayden legislation (Food and Agricultural Code sec. 31752.5).
B. The Top Four Controversial Provisions
While there was controversy about each of these provisions, some have resulted
in much more conflict than others. Perhaps the greatest amount of conflict emerged
with respect to four provisions: (1) the statewide policy preference for adoption and
owner-redemption; (2) release of animals to nonprofit animal rescue and adoption
organizations; (3) longer, restructured holding periods; and (4) holding periods for
owner-relinquished animals.
1. Statewide policy preference for adopting animals rather than killing them.
A policy preference for adoption was placed in three Codes: the Civil Code, the Food and
Agricultural Code, and the Penal Code. Its placement in all three Codes emphasizes the
fact that it is applicable to statutory interpretation of statutes in all three Codes. The
policy statutes include the following language:
It is the policy of the state that no adoptable animal should be euthanized
if it can be adopted into a suitable home. . . It is the policy of the state that
no treatable animal should be euthanized. A treatable animal shall include
any animal that is not adoptable but that could become adoptable with
reasonable efforts.
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The statewide policy preference for adoption was initially controversial because
some shelters interpreted it to mean that they had to incur whatever medical costs were
necessary to make each and every animal adoptable and to hold animals for however
long it would take to place them in homes. However, the statutes contain no specific
requirements on the part of shelters; no legal liability can flow solely from a statute that
enacts a policy preference.8 When that became clear, shelters and advocates reached
the opposite conclusion: that the policy statutes are legally meaningless.
The effect of a policy statute is legally subtle but significant. Animal shelters
must operate in light of the public policy in support of adoption, and, when there is
ambiguity in a statute, it must be interpreted in accordance with this policy preference
enacted by the People. A good example of the operation of the adoption policy
preference to resolve ambiguity in a statute also illustrates the controversy associated
with the release of animals to nonprofit animal rescue/adoption groups.
2. Release to nonprofit rescue/adoption groups those animals who are going to
be euthanized, if requested by the nonprofit group. Prior to the Hayden legislation,
some shelters were working effectively with nonprofit animal rescue/adoption groups in
order to give animals longer than the minimum holding period to find a home. When
the shelter’s holding period was over, a nonprofit animal rescue/adoption group might
take the animal out for a reduced adoption fee, thereby adding time to find the animal a
home and saving the costs of killing an animal who could find a home if more time were
available. However, some shelters resisted working with animal adoption groups. Our
survey information suggested several reasons for this: shelter perspectives that these
animals are better off dead than living for indefinite periods of time in low-kill or no-kill
shelters; the belief that animals are easily replaceable so why focus on saving this
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animal; dislike for animal rescue/adoption groups’ criticism of shelter practices; few
financial incentives to reduce the kill rate in their shelters; concerns about whether the
animal rescue/adoption groups were placing animals in good homes or diverting them
into dog-fighting or other cruel or exploitative uses; avoidance of the possible public
perception that the shelter doesn’t do an adequate job of finding homes for animals.
The Hayden legislation requires shelters to release animals requested by
nonprofit animal rescue/adoption organizations, rather than incur the cost of killing the
animals and disposing of their bodies.9 The statute allows shelters to impose only two
requirements: (1) that the animal rescue/adoption group have an Internal Revenue
Code sec. 501(c)(3) status, and (2) that the animal rescue/adoption group pay an
adoption fee for the animal. Many shelters have added their own requirements.10 Some
require groups to provide information about the group’s veterinarian and about the
individuals to whom each animal is adopted, for example. Some established rules that
animals could be requested and released only within a certain number of hours of the
ending of the animal’s hold period, which is a type of rule that requires rescue groups to
have volunteers on site all the time. Some decided that only those animals the shelter
considers “adoptable” will be available for adoption. For example, some shelters deem
pit bull or pit bull mixes categorically “unadoptable.” They will not release a pit bull
even to a pit bull rescue organization. This clearly violates Food and Agricultural Code
sec. 31683, which prohibits breed specific dangerous dog regulation, let alone the
Hayden law. Even many shelters that do comply with Food and Agricultural Code sec.
31683 conduct temperament tests and, on the basis of that temperament test, decide
whether an animal is “adoptable.” On the basis of that test, those shelters decide
whether to release an animal for adoption, regardless of whether the adopting person is
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a member of the public generally or a member of an I.R.C. sec. 501(c)(3) animal
rescue/adoption organization.
Shelters argue that they must prevent any dangerous dogs from being adopted,
period. Advocates of the Hayden legislation are also concerned about dangerous dogs
entering the stream of adoptions. However, they prefer the judgment of animal
rescue/adoption groups as to whether an animal is adoptable. They argue that shelters
have erred too long on the side of killing animals and that shelters too readily label
animals “unadoptable” through the use of nonprofessional standards applied by
insufficiently trained kennel staff whose biases might well interfere with their ability to
assess an animal’s temperament. Moreover, the animals being tested are very likely to
exhibit atypical behaviors due to the shelter environment itself. Too many actually
adoptable dogs and cats have been dying as a result. Nonprofit rescue/adoption groups
are more likely to have better training, to have incentives to do careful assessments of
the animals, and to provide socialization training for the animals, if necessary.
Animal rescue/adoption groups read the law as allowing shelters to impose only
two requirements (I.R.C. sec. 501(c)(3) status and payment of an adoption fee).
Shelters claim that the statute does not forbid additional requirements, so they should
be able to impose additional requirements. The adoption preference statute helps to
resolve conflicts such as this. Every time a shelter places a new restriction or
requirement on the release of an animal to a rescue/adoption group, there will be fewer
releases to animal rescue/adoption groups than would have been made otherwise.
Because the People of California have an explicit preference for adoption instead of
killing these animals, statutes that have more than one possible interpretation should be
interpreted in accordance with the preference for adoption. Unless there is another
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policy that overrides the policy for adoption or unless it can be shown that an extension
of the rule enhances adoption, the shelter cannot extend the rule beyond the
requirements that the animal rescue/adoption group be an I.R.C. sec. 501(c)(3)
organization and pay an adoption fee.
Shelters have consistently argued that there is another policy that overrides the
policy preference for adoption. They contend that their role as enforcers of the
anticruelty statutes gives them the right and the obligation to ensure that the groups to
whom they release animals meet their standards. However, their standards do not
necessarily match up with prevention of cruelty. Giving rescue groups a window of only
4 hours to adopt an animal scheduled for death does not advance an interest in cruelty
prevention, for example.
Does the Hayden legislation result in “adoptions at any and all cost to public
safety?” Advocates of the Hayden legislation say that the policy preference for adoption
operating in the context of required release to requesting nonprofit animal
rescue/adoption groups only creates a hierarchy of acceptable judgments about an
animal. Because a shelter can say “no” to anyone except a qualified Internal Revenue
Code sec. 501(c)(3) animal rescue/adoption organization, the shelter’s judgment about
an animal will prevail over the judgment of a member of the public. However, a
nonprofit animal rescue/adoption organization’s judgment will prevail over the
judgment exercised by the shelter.
Most importantly, both policies of adoption and cruelty prevention can be met
without harming either policy. If there is evidence that a group actually does violate the
animal cruelty statutes, then legal action can be taken against that group to stop the
violation. Precisely because humane officers and government shelter officers have the
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legal power to address cruelty directly, there is no reason for shelters to use release rules
as a substitute for anti-cruelty statute enforcement.11 If there is no violation of the anticruelty
statutes, the mere possibility of a violation in the future does not justify loading
the release rule with additional requirements.
3. Holding period requirements that include public access hours. As in the case
of adoption policies, some shelters have resisted the implementation of longer holding
periods. However, since many shelters were already holding some animals longer than
the required 72 hours,12 the greatest number of objections seems to relate specifically to
two related issues: (1) the loss of flexibility to decide which animals should receive a
longer holding period, and (2) the desire to establish their own public access hours
rather than to have to comply with the requirement that, in order to hold an animal for
the shorter period of 4 business days, the shelter must be open hours when working
people can visit the shelter to reclaim their animals or to adopt. Yet, the fact is that the
shelters could not have established an accurate sense of which animals should be held
longer based on their experience with owner redemptions or public adoptions. Even
old, objectively unattractive, or disabled animals might have loving families trying to get
to those animals before the 72-hour hold period expires. Seventy-two hours is too short
particularly when the shelter is not open during the time that working people can go to
the shelter to look for their lost animals or to adopt animals.
Many shelters have considered their public service as a lost/found/adoption
resource marginal to their law enforcement responsibilities (e.g., dog-catching, cruelty
investigations), so it is not surprising that they prefer to structure their public access
hours at their own convenience. Shelter managers who misread the law as requiring
the shelters to be open at least one weekend day and one weekday evening have missed
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the point that, for any particular animal to be held four business days instead of 6
business days, the shelter had to make the animal available on a weekday evening or a
weekend day. The difference is admittedly subtle; in order for a shelter to hold all
animals only 4 days, it turns out that the shelter must have later hours on one weekday
and one weekend day. Nevertheless, the difference, while subtle, is meaningful. It
focuses on the opportunities to be accorded animals, not mere regulation of hours
simply in order to “control” shelters.
Shelters were also resentful about changes they perceived to be for the benefit of
people who seem, as a group, to be irresponsible. First, if their animals are out on the
streets as strays, aren’t these people obviously irresponsible and uncaring? Second, are
such people likely to reclaim their animals? In many of our shelters a self-fulfilling
prophecy that most animals won’t be reclaimed or adopted had resulted in minimal, if
any, public access hours when working people could come to the shelter. That, in turn,
had actually decreased people’s ability to reclaim/adopt animals. It is difficult to
reclaim animals or to adopt animals when a shelter provides public access hours only
from 10 a.m. to 2 p.m. on some but not all work days, for instance. Some small public
shelters had no established public access hours at all!
In structuring public access opportunities with working people’s schedules in
mind, Hayden’s legislation was an attempt to break the spiral of decreased public access,
which reduced opportunities for reuniting animals with their families, which in turn
resulted in unnecessary killings of animals who would have been reclaimed. The spiral
also resulted in shelter perceptions of owners as irresponsible and uncaring. After a
certain point, increase in the number of days an animal is held becomes less important
than the particular hours a shelter is open to the public. Public access, not some magical
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number of public access days beyond five business days, is key to public and rescue
group opportunities to identify animals and to take them out of the shelter. For
instance, it is more important for a shelter to have reasonable access hours in relation to
the length of commutes most people have in the area and their distance from home than
it is to have a longer holding period without attention to public access hours.
4. The requirement to hold owner-relinquished animals. A provision that
definitely makes the “top four” in terms of controversy is the Hayden legislation’s
requirement that, if a shelter takes in owner-relinquished animals, the shelter must hold
the animal for the same length of time as “strays.” While some shelters might have held
some of these animals for some period of time, most shelters were killing these animals
as soon as the animals were turned over to the shelter. This was true even when owners
wanted and expected the animals to have an opportunity to be adopted. There was no
legal requirement that the shelters kill these animals, even if requested to do so by the
owners. But, as soon as a shelter became the legal owner of an animal, the shelter as
“owner” could destroy its “property.” Shelter managers asked the question, “If no one is
going to claim the animal as “lost,” why should the shelter hold an animal?” Shelter
employees asked similarly pessimistic questions. Why should they engage in timeconsuming
and costly care of animals who are “goners” at the end of a hold period in
any case? In some shelters it was never really a matter of whether the animal would
stand a real chance of adoption; if an employee is paid the same whether cages are
empty or full, employees will keep cages as empty as possible. Tom Hayden was
determined that these animals be given a chance to be adopted, that they not come into
a “shelter” merely to be killed.
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Two issues surfaced with respect to owner-relinquished animals when the
legislation was moving through the Legislature. Both concerned owner rights; neither
concerned the very real problem that some of our most adoptable animals have been
denied opportunities for adoption and have been killed immediately at taxpayer expense
and without taxpayer approval through their elected representatives. First, there was
testimony about the prevalence of an angry neighbor or family member or roommate or
friend turning in an animal as “owned.” If killed immediately, an owner could not find
her/his animal, even if s/he looked, because the animal was not being held. Also,
shelters could mistake a situation of turning in a stray for a situation of an ownerrelinquishment.
While that seemed implausible to some of the shelter directors
involved in discussions about the legislation, the fact that it actually had happened to
someone in the Governor’s Office meant that the shelter directors could not deny its
possibility.
Second, shelters argued that their failure to take in and kill these animals results
in the animals ending up abandoned on the street. If shelters don’t comply with owner
turn-in requests, owners will abandon animals to cruel fates, and shelters will have
additional costs associated with catching strays. Advocates of Hayden’s legislative
proposal raised the flipside of that argument: if people cannot keep their animals and
they know that a shelter will kill those animals, they will abandon the animals on the
street in order to give the animals some chance at life.
It is very difficult to know what is true as a matter of fact. Do owners abandon
animals if they think shelters are going to kill the animals after a short or no holding
period? Even if we knew the answer to this, isn’t it time to think about the animals
independently of what their owners will or won’t do? To take an animal in and then
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give the animal absolutely no opportunity to be taken out by a rescue group or adopted
by a member of the public is a terrible disservice to the animal, regardless of how one
judges the animal’s owner. Studies had shown that owner-relinquished animals are
among the most adoptable animals entering our shelters.13 In the end, Hayden’s
legislation, as enacted, states that if a shelter takes in an owner-relinquished animal the
shelter must give that animal the same opportunity as other homeless animals to be
adopted.
C. What Effect Has the Hayden Legislation Had?
We don’t know how well any of these provisions is working. Arguably, some
things have changed: more shelters are being reconfigured in animal-friendly ways, and
more animals are being released to adoption groups, for example. It is difficult to
determine the role of legislation when an entire no-kill movement was already well
underway when the legislation was enacted. There is much anecdotal evidence that
shelters have chosen selectively what, if any, of the Hayden legislation to follow. Ownerrelinquished
animals are still being killed immediately in some shelters,14 some shelters
never adjusted their hours, and rescue groups are still hindered from taking out animals
from many of our shelters. Many animals are still not being given the veterinary care
required by law; so they suffer, are not adopted, and die in greater numbers than they
would have. While there is occasional talk of lawsuits seeking compliance with the
Hayden legislation, much of that talk has not advanced. Such litigation is dependent
on sworn testimony, under penalty of perjury, that sufficiently documents shelter
violations of the laws. Casual users of the shelter system are not likely to know that
rules are being violated. Rescue group members and volunteers and shelter employees
may well know about violations, but those people are not likely to jeopardize their
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position in the shelter and their ability to help animals in the shelter by publicly
accusing the shelter of violating the law.
Another problem with litigation aimed at compliance is the problem that the
water has been significantly muddied by questions about which provisions are
enforceable. Financial controversies about the legislation have resulted in temporary
suspension of some but not all provisions of the Hayden legislation. In order to
understand which of the provisions were suspended, it is necessary to explain some of
the financial issues that underlie the suspension.
Part II. Financial Controversies
A. The Legislature’s Finding that the Hayden Legislation is Cost-Effective
The Hayden legislation was reviewed by the Appropriations Committees of both
houses of the California Legislature. Both found that the legislation was cost-effective
and did not require funding from the State. Killing animals and disposing of their
body’s costs money without bringing in any offsetting revenue; opportunities to get
adoption fees or “owner-redemption” fees/fines are lost along with the animals’ lives. It
is “revenue-negative” to run a shelter for animal disposal purposes. On the other hand,
adoption and owner-redemption are “revenue-positive.” By statute, shelters can collect
the costs of maintaining an animal when s/he is reunited with her/his human family,15
and shelters can charge adoption fees that more than cover the costs of maintaining an
animal.16 This does not mean that a shelter will operate “in the black” if it aggressively
pursues adoption/owner-redemption strategies. It means only that shelters will use
fewer funds and bring in more funds to the extent that they aggressively pursue
adoption and owner-redemption strategies. This is significant because opponents
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claimed that the legislation was not cost-effective if it did not bring the shelter as a
whole into a revenue-positive position.
This is not unique to the fight over reducing shelter killing in California. For
instance, critics of a Las Vegas “no-kill” policy pointed out that the shelter was still
killing 33% of the animals impounded there. But, in the period before committing to
“no-kill,” 52% of the animals were killed.17 A reduction from 52% to 33% represents
large savings in terms of animals’ lives and funds used to kill and dispose of animals,
even if the shelter could not operate as a totality “in the black.”
Although it seems that animal shelter managers would automatically implement
all cost-effective means of running their shelters, that is not necessarily the case. There
are many reasons why a shelter would fail to adopt cost-effective management methods.
In this particular case, to adopt policies that reduce the rate of killing suggests that the
previous policies were inhumane and that animals were being killed unnecessarily. It is
not necessarily the case that shelters previously had the perspectives or the visible
options that they have now to increase adoptions and owner-redemptions, and so the
criticism that “they should have and could have been saving lives all along” might not be
fair or accurate. But demonstrating the feasibility of adoption/owner-redemption now
unfortunately tends to give rise to the criticism that animals were killed unnecessarily
and, in turn, to some shelter managers’ justifying the former practice as having current
utility.
Some resistance to adoption/owner-redemption surely must be connected to
shelter identification with “law enforcement” rather than a purpose such as “helping
animals find their old or new homes.” Sometimes such resistance is the product of long
careers in animal shelters in which traditional methods of “animal control” were not
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questioned. And, sometimes there is pessimism about the possibility of actually
reaching the goal of “no more homeless animals.”
All of these explanations probably have some validity, and they were raised at
different times in the legislative process and after enactment of the Hayden legislation.
However, I believe that the most important determinant of whether adoption/ownerredemption
strategies are pursued is how shelter employees are compensated and how
animal shelter budgets are calculated. As noted earlier, if shelter employees are paid the
same regardless of whether cages are empty or full or animals are sick or well, then what
incentive is there to aggressively pursue life-saving strategies? If a shelter’s budget is
based on a shelter’s apparent need to dispose of unwanted animals, and the shelter
cannot divert unused funds into other programs (such as adoption, spay/neuter, and
“owner education” programs), then shelters will lose budgetary resources if their
operations change in ways that reduce their apparent need for funding. Eventually, for
life-saving legislation to be fully effective, individual employees will have to be rewarded
for pursuing life-saving strategies and performance-based budgeting in which
“performance” means “saving lives” will have to be implemented by those supervising
and funding animal shelters. Shelters will have to be given financial room to
experiment with ways of meeting that performance goal. Individual shelter
experimentation with increasing adoption/owner-redemption will provide models for
other similar shelters to incorporate.
Since “performance-based budgeting” at this point means budgeting to “get rid of
unwanted animals,” it is not surprising that the picture of economic rationality
embedded in the Hayden legislation seemed very odd to shelter managers. Shelter
managers denied that adoption/owner-redemption-based shelter operation could be
20
revenue-positive. While it might result in savings for government as a whole, in fact, it
would probably reduce budget allocations to shelters.
B. Testing the Claim that the State should pay local government money for
implementing the Hayden Legislation.
The County of Los Angeles took the lead in bringing a “test claim” to dispute the
Legislature’s finding that the Hayden bill is cost-effective.18 The County’s argument, as
opposed to shelter managers’ argument, is that the Hayden bill causes costs to be
incurred without offsetting revenue gains. The overt position government took was that
the number of animals killed would not fall due to adoption and/or owner-redemption;
animals would be impounded, sit in cages for longer periods of time, receive higher
levels of care, and then be killed at taxpayer expense.19
Test claims are filed with the Commission on State Mandates. The Commission
on State Mandates is a quasi-political body in that it includes elected officials,
bureaucrats, and members appointed by the Governor.”20 That is important because the
Commissioners need not have specialized training in law or the subject of a particular
“test claim.” Also, they are politically sensitive to how their decisions will be
characterized. The Commission is also a quasi-judicial body in that it hears evidence
that the Legislature was wrong about its finding that money is not owed to local
government, and it is empowered to decide that money is owed and, if so, how much.21
In this case, the County of Los Angeles claimed that the State, in enacting shelter reform
legislation, must pay annually to the tune of millions of dollars. Other local
governments joined the test claim and submitted claims for State reimbursement of
costs associated with the Hayden legislation.
21
California’s Department of Finance opposed the local governments’ test claim.
Finance took the position that the State had no funding requirements associated with
the Hayden legislation, with the possible exception of the public shelters’ duty to post
lost/found animal listings.22 However, Finance did not rest exclusively on a claim that
the legislation is cost-effective; it grounded its claim on the legal definition of a
“reimbursable state mandate.” Relying on the California Supreme Court’s 1987
decision of County of Los Angeles v. State of California, Finance argued that a law that
applies generally does not constitute a “reimbursable state mandate;” reimbursable state
mandates “uniquely” burden local government with obligations not shared with private
entities.23 Since the Hayden legislation explicitly applies to all shelters in the State,
including non-governmental shelters, Finance took the position that the legislation does
not uniquely burden local government.
The second argument Finance made concerned reimbursement of a state
mandate when the local government entity has sufficient fee authority with which to
raise the money associated with the state mandate. If the State has given local
government the ability to raise funds directly, in this case through dog licensing and fees
paid by owners and adopters of animals, then the State does not owe local government
money for implementation of the program.24
Neither of these sources of funds is insubstantial. Dog licensing is highly
problematic as a legal device for “animal control purposes,” but it is true that millions of
dollars are lost when shelters fail to use that fee authority. According to the Animal
Care and Control Department of Los Angeles County, for example, in fiscal year 2002
$7,500,000 was collected for the cost of collection of $3,500,000 (including personnel
costs and the production of licenses records). That resulted in a net of $4 million
22
dollars. Even so, the General Manager of the Department acknowledged that accounted
for only about 43% of owned dogs. Still, it is one of the best records in the State. For
example, San Francisco licenses only about 19% of dogs, and the City of Los Angeles
collects only about 23% of the revenues it could collect from dog licensing.25
It is a similar story with adoption fees and owner-redemption fines/fees. Survey
data collected at the time of the Hayden legislation revealed that many jurisdictions
were, in fact, able to collect fees and fines from owners who reclaimed their animals.
Although it may be true that some owners will not reclaim their animals if they are
required to pay fees/fines, many shelters reported considerable compliance and
redemption rates even when fines were assessed in addition to the costs of maintaining
the animals at the shelter. Similarly, we don’t have data that supports the contention
that shelters will lose adoptions if they assess fees that more than cover the costs of
making the animal available for adoption. For example, the City of Santa Rosa
increased the adoption fee to $130 per dog and yet has not reported fewer adoptions. 26
The City of Los Angeles adoption fees have increased for dogs by about 25% (to nearly
$100), but representatives for the Department of Animal Regulation report that
adoptions have been increasing.27 Far from burdening local government uniquely, the
Hayden legislation burdens both private and public shelters, but only public shelters
have the full panoply of state-authorized fees and fines available to fund themselves.
The Commission on State Mandates disagreed with Finance on both issues:
general application of the law to all private and public shelters and the adequacy of fee
authority.28 As to the first, the Commission decided that only public shelters were
actually required to follow the new laws because only public shelters were actually
required to take in stray animals. In the Commission’s opinion, the Hayden legislation
23
uniquely burdens public shelters. As to the second issue (fee authority), the
Commission decided that the fee authority held by public shelters is insufficient to raise
the money necessary to implement the Hayden legislation.
Finance has filed a lawsuit contesting the Commission’s decision.29 First,
Finance argues that there are, in actual fact, many private shelters in California that are
legally obligated to take in animals. Moreover, even if a particular animal shelter is not
bound to take in a particular animal, an animal shelter is fully obligated to obey the
Hayden legislation as to the animals it takes in. Accordingly, the legislation burdens
private shelters just as it burdens public shelters.
Second, Finance contests the Commission’s interpretation of the law regarding
the fee authority public shelters have available to meet the financial costs of running
shelters. Finance claims that local government cannot prevail on an abstract argument
that the income generated from fees wouldn’t be enough.30
The issues of what constitutes “unique” burdening of local government and
“sufficient fee authority” are of general importance in state mandate law. While the
lawsuit asks the Court specifically to order the Commission to find that the Hayden
legislation is not a reimbursable state mandate, the lawsuit’s general purpose is
clarification of these two issues. The lawsuit is pending. Until it is resolved, the
Commission’s decision remains intact.
Although the Commission disagreed with the Legislature’s original finding that
the Hayden legislation does not require State funding, the Commission did not find that
all of the Hayden legislation requires State funding. The Commission’s Statement of
Decision, effective February 2, 2001, identifies some provisions of the Hayden
legislation as “reimbursable state mandates” and other provisions as not “reimbursable
24
state mandates.” For those provisions deemed to be “reimbursable state mandates,” the
Commission submitted a cost estimate to the Legislature for State funding of local
government entities’ compliance with those “mandated” provisions.
Part III. Fiscal Suspension of Parts of the Hayden Legislation
The Legislature has not disbursed money to local government entities, and, most
recently, the Legislature suspended those “mandated” provisions by failing to make
budgetary allocations for those provisions during the current fiscal year.31 It is
important that “suspension” does not mean that those provisions have been repealed.
Separate legislation would have to be brought to repeal the provisions. However,
suspension does mean that, as to those particular provisions, the previous provisions
will be in effect until the Legislature allocates funds for implementation of the Hayden
provisions that replaced them.
A. Parts of the Hayden Legislation that the Commission deemed to be a
reimbursable state mandate and that the Legislature has suspended for the
current fiscal year
The Commission on State Mandates found the following to be in total or in part,
state mandates that require reimbursement from the State:
a) the requirement that each animal brought into a shelter be held for a minimum
of six business days, unless the animal is available for adoption or owner-redemption on
one weekend day or one weekday evening. In that case, the animal must be held only 4
days (Food and Agricultural Code secs. 31108, 31752, 31753);
b) some of the records that allow shelters (and their owners or rescue/adoption
groups) to track animals in the system (Food and Agricultural Code sec. 32003);
c) the requirement that animals other than cats and dogs receive the same
conditions of holding and care as cats and dogs (Food and Agricultural Code sec. 31753);
25
d) the requirement that shelters maintain lost/found lists and to provide the
names and addresses of other shelters in the area (Food and Agricultural Code sec.
32001);
e) the required use of a standardized protocol be to determine whether a cat is
truly feral before denying a cat the benefit of the longer holding periods enacted in the
Hayden legislation (Food and Agricultural Code sec.31752.5).
The Commission on State Mandates decided that the holding period for stray cats
and dogs that is in excess of the previous holding period of 72 hours is reimbursable to
local governments by the State.32 While the Commission did not agree with local
government that the cost to them was holding animals 6 days instead of the minimum 4
days, the Commission did decide that local governments were owed money for the costs
to them of holding animals for 4 days instead of 72 hours. Local government was
allowed to claim the costs of new construction for housing the animals as well as
employee costs for caring for the animals. After that allowance was made and a total
dollar amount was decided as owed to the local governments by the State, the Bureau of
State Audits found that local governments had not applied an accurate measure of costs
associated strictly with the Hayden legislation as opposed to costs associated with
animal population increases or with refurbishing old buildings, for example.33 It found
large overstatements of claimed costs. However, before that audit report was
published, the Legislature had already decided to suspend the reimbursable mandate
provisions of the Hayden legislation. Therefore, the holding period for stray cats and
dogs is legally now only the 72 hours it was previous to enactment of the Hayden
legislation. A shelter may decide voluntarily to hold stray cats and dogs longer than 72
hours, but such a shelter may not make a claim to the State for any costs it incurs in
doing so. In fact, many shelters were holding animals significantly longer than the 72
26
hours, and many are continuing to hold animals for the longer period. Some, however,
have returned to the 72 hour holding period.
The Commission on State Mandates found that the entire holding period for stray
animals other than cats and dogs constituted a reimbursable state mandate.34 On the
basis of that finding, the entire holding period for stray animals other than cats and dogs
has been suspended. State law prior to the Hayden legislation required the holding of
stray animals other than cats and dogs. Penal Code sec. 597f required shelters to hold
“animals” until their owners could redeem them; the law does not specify “cats” or
“dogs.” Shelters that read the law as requiring the holding of stray “animals” apparently
understand that the required holding period for those animals is the same as for cats
and dogs: 72 hours. Again, a shelter may hold such an animal voluntarily for a longer
time, but it may not seek reimbursement from the State for doing so.
An important aspect of Hayden’s legislation was its consolidation and unification
of requirements shelters previously had but which were scattered throughout many
different Codes. For example, whenever an animal receives veterinary care, records
must be kept on the animal.35 Shelters were not keeping records on the treatment or
whereabouts of animals, and Hayden’s legislation restated those record-keeping
requirements. The Commission on State Mandates agreed that such record-keeping is
a requirement that pre-existed the Hayden legislation. However, the Commission
decided that euthanasia is not a veterinary medical procedure because veterinary
technicians and shelter employees can perform euthanasia under special provisions set
out in the Business and Professions Code.36 According to the Commission, since
euthanasia is not a veterinary medical procedure, veterinary medical record-keeping
requirements do not apply in the case of an impounded animal who is euthanized
27
without veterinary medical care. Accordingly, the Commission decided that the Hayden
requirements for record keeping, as to those animals, are new and reimbursable state
mandates.37 Those record keeping requirements have been suspended. Record-keeping
for other animals who receive any veterinary medical attention is required and has not
been suspended.
Similarly, the Commission found that the Hayden legislation requires a higher
standard of veterinary care.38 Whereas previously only “emergency” care was required,
“necessary and prompt” veterinary care is now required. The Commission did not
accept the arguments that “necessary and prompt” is “emergency” care, that Civil Code
section 1815 prior to Hayden’s legislation already required depositaries of living animals
to treat them “kindly,” and that Penal Code sec. 597f already required veterinary care
prior to Hayden’s legislation. Accordingly, anything other than “emergency care” (as
distinguished from “necessary and prompt” care) is not required. No one knows what
the difference is between “necessary and prompt” and “emergency.” Since the whole
veterinary care issue has been confusing from the start, most shelters appear to be doing
what they always did, however they understood their obligations to provide veterinary
care.
Hayden legislation required shelters to temperament-test a shy, scared, or
aggressive cat to determine if the cat was truly feral before denying that cat the
opportunity afforded by the longer holding periods. The Commission decided that
temperament-testing is an activity mandated by the State and, therefore,
reimbursable.39 However, since the Commission found that the longer holding period is
reimbursable, and the Legislature has suspended the longer holding period, there is no
need for temperament-testing any cat. As noted in more detail below, however, shelters
28
are required to hold feral cats for the same holding period as stray cats. In fact, it might
be just as well that there are no temperament-testing requirements. Such tests can be
constructed in ways that allow shelters to kill far more than just feral cats, resulting in a
shorter holding period for many shy, scared, or injured cats who would not have been
branded “feral” were it not for temperament-testing constructed in ways that include
them.
Finally, the Commission decided that the requirement to post lost/found animal
listings is a reimbursable state mandate.40 That requirement, too, has been suspended
for the current fiscal year.
B. Hayden Legislative Provisions that Have Not Been Suspended
The Commission on State Mandates did not accept the test claimants’ arguments
that all of the Hayden legislation constitutes reimbursable state mandates. Many of the
Hayden provisions remain in effect because the Commission on State Mandates did not
find them to be reimbursable state mandates, and, therefore, the Legislature did not
suspend them. The following is the list of the enacted provisions of the Hayden
legislation that are still in effect; they have not been suspended for the fiscal year:
a) the statewide policy preference for adoption and owner-redemption (Civil
Code sec. 1834.4.; Food and Agricultural Code sec. 17005; Penal Code sec. 599d);
b) the explicit provision that shelters, including public shelters, are “depositaries
of living animals” (Civil Code secs. 1815, 1816) responsible for treating those animals
“kindly” (Civil Code sec. 1834);
c) only some of the required records that allow shelters (and their owners or
rescue/adoption groups) to track animals in the system have survived suspension (Food
and Agricultural Code sec. 32003);
d) the requirement that shelters give owner-relinquished animals who aren’t
suffering irremediably an opportunity for adoption or redemption instead of killing
them immediately (Food and Agricultural Code sec. 31754);
29
e) the requirement that shelters release animals to Internal Revenue Code sec.
501(c)(3) animal rescue and adoption groups that have requested an animal prior to
his/her euthanasia (Food and Agricultural Code sec.s 31108, 31752, 31752.5, 31753,
31754);
f) the requirement that shelters use all reasonable means of checking for owneridentification
(Penal Code sec. 597.1 (l));
g) statutory permission for involuntary gratuitous depositaries to accept freely
offered rewards (Civil Code sec. 1846);
h) statutory authorization for a judge to prohibit a convicted animal abuser from
owning animals as a condition of probation (Penal Code sec. 597.1);
(i) the requirement of pre or post-seizure (of one’s animal) hearings if an owner
requests one (Penal Code sec. 597.1);
The adoption policy statutes remain in effect because they do not involve specific
duties that cost local government to implement. It is still the policy of the State of
California that adoption and reuniting animals with their human families is preferable
to killing them in our animal shelters.41 As noted before, this means that the policy is
still relevant to interpretations of statutes and shelters’ policies.
Shelters must, as a matter of state and federal constitutional law, provide owners
of animals an opportunity to argue against the State’s taking of their animals. The preand
post-seizure hearing requirements in the Hayden legislation codify California
judicial decisions that these hearing opportunities are required under laws that pre-exist
the Hayden legislation.42
Hayden’s legislation requires that shelters hold owner-relinquished animals for
the same period of time as strays. This requirement is still in effect. A shelter that kills
an owner-relinquished animal without holding it for at least 72 hours is violating the
law, with the exception of an animal who is irremediably suffering. The Commission on
State Mandates found that the Hayden legislation does not require shelters to take in
30
owner-relinquished animals; it requires only that, if a shelter takes in ownerrelinquished
animals, it must hold those animals rather than killing them
immediately.43 Shelters did not previously and do not now have any obligation to take
in an owner’s unwanted animal and kill that animal at taxpayer expense. Accordingly,
it is not a state “mandate” that a shelter take in an owner’s unwanted animal. If a
shelter does voluntarily take in an owner’s unwanted animal, the shelter must, at the
least, give the animal a chance to live before the shelter incurs the taxpayer expense of
killing that animal and disposing of his/her body.
Shelters must allow I.R.C. sec. 501(c)(3) animal rescue/adoption organizations to
take out animals requested by the organizations during the animals’ holding periods.
The Commission on State Mandates decided that this is not a reimbursable state
mandate because the statute explicitly provides that a shelter may assess the same fee of
the rescue/adoption group that it would assess from another member of the public.
Because the shelter has “fee authority” to cover its costs, the shelter has been given by
the State the ability to comply with the law. When the State provides fee authority, the
State is relieved from providing the funds directly.44
Please note that the statute states that a shelter may, but is not required to,
collect an adoption fee from the animal rescue/adoption organization. Many shelters
have agreements with such groups that enable the groups to take out animals for
reduced rates. Those agreements are legal. A shelter may not charge such a group more
than it charges another member of the public, however.
Some shelters have always immediately killed shy, scared, injured cats they deem
“feral.” This has been illegal since 1980 when holding periods were mandated for stray
cats. The statute does not distinguish between feral and non-feral cats; it requires a
31
holding period for all stray cats.45 The Commission on State Mandates confirmed that
and decided that, therefore, the mere holding of feral cats is not a reimbursable state
mandate attributable to Hayden’s legislation. It is still illegal to kill any stray cat before
the cat’s holding period has ended, even though the holding period for all cats is shorter
while the holding period part of the Hayden legislation is suspended.
Part IV. Conclusion
The Hayden legislation was enacted within the context of a movement that had
already gained considerable momentum, albeit with considerable controversy. The goal
of reducing killing of homeless animals to instances of true “euthanasia” (killing to
relieve suffering) was embraced by many shelters, and many advocates for animals had
begun thinking about ways to bring the vision of “no-kill” closer to reality. There were
more plans for animal-friendly shelters, more attention to spay/neuter incentives, more
coordination with nonprofit animal rescue/adoption groups, and more volunteerism
among the public concerned that homeless animals receive every opportunity to survive
the misfortune that made them homeless. The expansion of the Internet at the same
time has given considerable impetus to the no-kill movement. Not only do groups and
individuals coordinate in their efforts, but animals in need of homes can be pictured and
described on the Internet in ways that greatly improve their opportunities for finding
homes.
Because of this complex intertwining of movements and social change, it is not
possible to identify clearly the particular contribution of any one part of that complex.
However, it is possible to identify, on the basis of experience in working on the
legislation, some factors that affected the shape it took and the retention of some of its
provisions even as some provisions have been temporarily suspended.
32
A. Legislative Design
The Hayden legislation was conceived and drafted by a group of individuals who
saw “animal sheltering” as a process that involves animals, owners of animals, would-be
adopters of animals, the public that doesn’t own animals, animal rescue/adoption
groups, public shelters, and private shelters. The legislation seemed overly complex to
some in the animal community, but, in fact, it had to be complex in order to address
such wide-ranging influences on shelter practices. For that reason, the legislation had
to involve several drafters, not just one, and the legislation had to incorporate a number
of different perspectives. Without that inclusion and without that willingness to work
with complexity, the legislation would have accomplished very little. Without an
ambitious beginning, inevitable political compromises along the way to enactment
would have destroyed much that remains. Much remains precisely because there were
many provisions on which to compromise. As it is, the legislation successfully banned
the immediate killing of owner-relinquished animals and animals other than cats and
dogs. It codified access to our animal shelter population by animal rescue/adoption
groups which provide more placement opportunities to those animals. Important
provisions such as the ability to prohibit ownership of all animals as a condition of
probation for having been cruel to an animal and clarification of the right of owners to a
hearing to contest government seizures of their animals have survived. Yet, those
provisions would undoubtedly have been contested vigorously if they had not been part
of a package that provided so many opportunities to contest shelter reform.
While the drafters created legislation that would have sweeping effects (e.g., the
expansion of the measure of damages for harming an animal), some of the apparently
more modest provisions have had large effects. For example, it is very important for
33
the rights of people to demand a hearing when government seizes their animals that the
Hayden legislation removed the legal language that local governments could choose
whether to make such hearings available. The courts had already established the right
to a hearing, but the statute setting up those rights in the Penal Code stated that the
hearings were a matter of choice by local government.
Another example of the importance of a seemingly small change that has had
significant consequences is the public policy preference for adoption. An entire article
could be written just about this statutory public policy preference. Such an article could
explore in more detail the facts that it came directly from the success of a nonprofit’s
courageous experimentation with ways of reducing killing of homeless animals and that
it is a key argument in the interpretation of other statutes and shelter policies that affect
the opportunities of animals to be adopted.
But such an article would also have to face the reality that this policy, too, is
susceptible of distortion. Increasingly over the past five years, more and more shelters
are publicly proclaiming a preference for adoption. But that does not mean that more
animals will be available for adoption. An adoption preference has come to mean
different things in different shelters. In many instances it has involved constructing
health measures and temperament-testing protocols that will allow shelters to claim
that they kill only “unadoptable” animals. It is relatively easy to become a “no-kill”
shelter by manipulating the concept of “adoptable” while killing as many or more
animals as before. Statewide statistics on impound rates and kill rates would help us
determine whether killing is, in fact, continuing at the same level, but shelters have been
supplying those statistics less consistently over the past 5 years.
34
All of this suggests that legislation to benefit animals must start out aiming
responsibly at the highest possible level of benefits for animals without assurances that
one will be able to predict with certainty how the legislation will play out ultimately.
While it is undeniably true that drafters must work hard to identify and to eliminate
predictable unintended consequences of the legislation, unexpected consequences--both
beneficial and unfortunate--simply cannot always be predicted. Because legislation is
always embedded in the context of other legislation and in a social context, humility
about the role of legislation in creating particular changes is appropriate.
B. Legislative After-Care
The drafters of the Hayden legislation expected an intense year of legislative work
to achieve enactment of the legislation. However, none expected the Hayden legislation
to create such intense work demands for the next five years--and beyond. Because of
financial disputes, the legislative effort has extended much beyond the initial legislative
effort to have the legislation enacted. It is frustrating to continue debating the question
of whether local governments need money to implement legislation that is necessary
because those local government shelters do not use cost-saving methods. It is all the
more frustrating to be portrayed as people who do not want to “give money to shelter
animals.” When the Commission on State Mandates first began proceedings in 1999,
California was awash in money. A representative of the Department of Finance told me
that Finance wouldn’t fight too vigorously against the claim for money because, after all,
it doesn’t hurt to give money to shelter animals even if this particular legislation doesn’t
warrant it. Having engaged relatively dispassionately in the controversy then, Finance
is now stepping in vigorously because the State is in dire financial straits. Now, more
than ever, cost-effective shelter operations are important. Fitting as it does with the
35
humane objective of saving lives at the same time, this cost-effective method of helping
homeless animals rather than killing them without a chance should have been and
should be a win-win situation for the animals and the State. However, the Commission
on State Mandates decided, during financially flush times, that a significant amount of
money is due to local governments, and so the legislation is at risk. It could well turn
out that, yes, it did hurt the animals to give public shelters money when it was not
necessary to do so.
The saga continues. The Bureau on State Audits reviewed two highly funded
state mandates and admonished the Commission on State Mandates for deciding on
levels of funding for both of those mandates without adequate investigation of the
factual basis for the financial claims.46 In fact, the Bureau of State Audits questions
generally the adequacy of the Commission, as a general matter, to create an accurate
picture of the State’s financial obligation when it evaluates test claims.47
Two issues on the animal adoption mandate (the Hayden legislation) have been
reopened.48 The Bureau of State Audits has required the Commission to reopen the
matter of funding claims that involve the construction of shelter facilities. It also
challenged the way in which local government has assessed employee costs, requiring
actual time studies of employees engaging in the mandated activity and not employee
guesses about the time it would take to fulfill such obligations as temperament-testing
feral cats or maintaining lost/found listings. Therefore, although the Commission on
State Mandates has already reached a conclusion about the State’s obligation to give
local government money for implementation of some of the Hayden legislative
provisions, the issue of State funding is not over. Indeed, the whole matter of whether
36
money is owed by the State to local government is undecided because of the Department
of Finance’s pending litigation.
Depending on the outcome of these disputes about finances, the Hayden
legislation may be the subject of repeal efforts. Opponents of Hayden’s legislation
sought delays and repeals of the legislation for three years following its enactment; it
would not be surprising if they took this opportunity to attempt to repeal some if not all
of its provisions.
For these reasons, much is uncertain about the future of the Hayden legislation.
But, regardless of whether any of its particular provisions survive, the emergence of the
Hayden legislation within the context of a movement that honors the lives of companion
animals is indicative of the strength of commitment to move all of our shelters in the
direction of saving, rather than taking, animals’ lives. That commitment will live and
grow beyond the boundaries of any particular legislative provision as we, as a society,
accept more fully the idea that an individual animal is unique and deserving of
protection in his/her own right. There will inevitably come a day when the idea of “nokill,”
which started at the experimental edges of society in the nonprofit sector, will go
mainstream into our public shelters. It is only a matter of time.
1 Taimie Bryant is Professor of Law at UCLA School of Law. Along with several others, she assisted State
Senator Tom Hayden in the research and drafting of legislation he introduced in 1998 for the purpose of
reforming many shelter practices. Others involved in this research and drafting effort were Paula Kizlak,
DVM (board member of The Association of Veterinarians for Animal Rights), Bob Ferber (Deputy City
Attorney for the City of Los Angeles), David Casselman (attorney specializing in government liability
issues), and Lois Newman, founder of Cat and Dog Rescue Association. Many other people advised this
group about the legislation, and there were others still who explained the bill and the need for the bill to
legislators and their aides. Notably Richard McLellan, founder of the Animal Legislative Action Network,
made this legislation a priority at the time of its passage and has continued to do so. Similarly, Kate
Neiswender, former aide to Tom Hayden, and Teri Barnato, National Director of The Association of
Veterinarians for Animal Rights, have fielded questions and defended the legislation concretely for several
years. In fact, the Hayden legislation has been very much a group effort from the beginning. And,
because the legislation has been under attack for so long, the group involved in supporting it has
37
continued to grow. All of the people, named and unnamed in this article, provided tremendous
assistance and support to Tom Hayden.
2 I agree with those who prefer the use of “guardian” to that of “owner.” Nevertheless, much of this article
concerns legal provisions that pertain to “owners” rather than guardians. Because the substance of the
article is particularly complex and describes laws framed in terms of “owners,” I am using that term
throughout the article.
3Only seven states provided 72 hours or less for reuniting people with their animals: California, Arizona,
Hawaii, Maryland, Ohio, Oregon, and Utah. The Humane Society of the United States stated that holding
periods of 5 days were the minimum for providing a realistic opportunity for reuniting animals with their
owners. Similarly, federal law regulating the sale of shelter animals to research labs deems 5 days the
minimum necessary to provide owners a reasonable chance to reclaim their pets (U.S. Code, Title 7,
Chapter 54 section 2135). Even California’s own dangerous dog law provided owners with 5 days to
request a hearing before their animals could be destroyed by government (Food and Agricultural Code
section 31621).
4 Information provided by the SF/SPCA at the time the legislation was under consideration by the
Legislature. In fact, the SF/SPCA played a vital role in demonstrating that “big city animal control” can in
fact turn the kill statistics on their heads; it is not just a “luxury” of smaller cities that had chosen to go nokill
or low-kill. It is the language of the SF/SPCA which forms the basis of the policy statutory provisions
enacted in Hayden’s shelter reform legislation.
5 At the time Senator Hayden was anticipating introducing the shelter reform legislation, Lois Newman,
founder of Cat and Dog Rescue Association, and I conducted some survey research of public and private
shelters in urban and rural parts of California. We were interested in such information as how budgets
were set, how much money was spent on holding, killing, and disposal, whether the shelter assessed
fees/fines, the length of holding period, and the extent to which volunteers and volunteer rescue groups
were involved in the shelter’s activities. We also received much unsolicited information from volunteers
and from volunteer animal rescue/adoption groups about the difficulties and benefits associated with
working with shelters.
6 Hayden’s shelter reform legislation was technically labeled “SB 1785” until then Governor Wilson signed
the legislation into law as Chapter 752, Statutes of 1998. In this article I refer to the legislation as
“Hayden’s legislation” in order to avoid confusion between it and other shelter reform legislation that was
enacted in the same year and because the legislation has become known by its author’s name.
7 The damages provision was not the only provision to die during the legislative process. The legislation
originally amended the anticruelty statutes to provide explicitly that shelters and shelter employees were
bound by their provisions. Explicit mention of shelters and shelter employees was proposed because of
numerous reports of cruelty in animal shelters and of responses from shelter employees that they were
immune from the anticruelty statutes. Similarly, the legislation originally included an explicit listing, in
the Food and Agricultural Code, of the humane care standards that are required in the anticruelty
statutes. Both of these were removed at the instance of local government shelter directors. The first was
considered an insult because “of course” the anticruelty statutes apply. The second was considered a red
flag for liability if a list were so easily available in the Food and Agricultural Code and might more easily
give rise to lawsuits brought by owners than the anticruelty statutes, which are used by law enforcement.
It was also deemed unnecessary since, once again, the shelters were obligated to comply with the
anticruelty statutes from which the list was drawn.
8 See, e.g., Professional Engineers v. Department of Transportation, 936 P. 2d 473 (Cal. 1997).
9 Food and Agricultural Code secs. 31108, 31752, 31752.5, 31753, 31754.
10 I have learned about these additional requirements by reviewing shelter memoranda and from
descriptions of the policies given by rescue groups seeking access to shelter animals.
11 Penal Code secs. 597f and 597.1 empower public shelter and private shelters to address cruelty to
animals.
12 For example, Burbank was holding animals for 5 business days, Los Angeles City was holding animals
for 5 business days, plus three additional days for adoption, and Sacramento County was holding animals
for 4 days. Perhaps as many as 20% of the shelters surveyed were holding animals for only 72 hours. The
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rest were holding animals longer. However, some were holding dogs longer than cats or animals with
owner identification longer than strays, for example.
13 See, for example, Natalie DiGiacomo, Arnold Arluke and Gary Patronek, “Surrendering Pets to Shelters:
The Relinquisher’s Perspective,” 11(1) Anthrozoos (1997) and Colorado State University, “News and
information press release” dated February 25, 1998, published originally at
http://www.colostate.edu/depts./pr/releases/news/pet-owner-survey.html. These reported studies
indicated that only 15 to 24% of owner-relinquished animals are candidates for euthanasia from the
standpoint of the animal’s health or temperament.
14 Some shelters have stopped taking in owner-relinquished animals at all or until they have more space.
15 Penal Code secs. 597f and 597.1.
16 Shelters are not regulated by statute as to how much they can or must charge as adoption fees.
17 “Stray Animals beet [sic] the odds in Las Vegas,” The San Diego Union Tribune, March 7, 1999, p. D-1.
18 The County of Los Angeles submitted its test claim to the Commission on State Mandates in late
December of 1998. The Commission on State Mandates designated the claim “CSM 98-TC-11, Animal
Adoption.”
19 The less obvious explanation for the test claim is that local government is so financially strapped that it
must make every case it can for getting funds from the State. Local government quite frequently uses
“test claims” when the Legislature determines that no funds are owed from the State to local government
as a result of newly enacted statewide legislation. When local governments could use property taxes to
fund local programs, the matter of “state mandated” programs was less contentious. However, now that
local governments cannot use property taxes directly, local government entities rarely miss an
opportunity to request that the State disburse funds. The theory is that the State should fund any
program the State requires of local government; local government should fund any program they decide
to require of themselves. The costs of pursuing a test claim can also be recovered from the State if the
claimant is successful, so local government has been very active in this area.
20 The Commission is comprised of seven members: the state treasurer, the state controller, the director of
finance, the director of the Office of Planning and Research, and three gubernatorial appointees (a “public
member” and two local government or school district members). The Commission does have a legal staff,
however, to conduct research on the law underlying a claim and to advise the Commission on an
appropriate legal outcome.
21 The Commission is “quasi-judicial” in the sense that it can act only when it has been asked to resolve a
specific claim that local government is owed money by the State. Its determinations, like those of
administrative agencies, is open to judicial review.
22 Food and Agricultural Code sec. 32001 applies only to public shelters and not to private shelters.
Therefore, it is a mandate from the state that uniquely burdens local government. However, it is an
obligation of shelters that could be covered by existing fee authority in Food and Agricultural Code secs.
30652 and 25802. Therefore, while it might be an obligation that uniquely burdens local government,
government has been given the legal authority to cover those costs. This is among the arguments yet to
be resolved the court.
23 County of Los Angeles v. State of California, 43 Cal. 3d, at 56.
24 Government Code sec. 17556.
25 All of this data is from the files of Lois Newman, Cat and Dog Rescue Association, and was
communicated to me by e-mail, dated 3/1/04.
26 Id.
27 Id.
28 The Commission on State Mandates decision issued its decision, effective February 2, 2001.
29 The State of California Department of Finance filed a petition for writ of administrative mandate
[Government Code sec. 17559(b); Code Civ. Proc. Sec. 1094.5] against the Commission on State
Mandates, naming as “real parties in interest” the test claimants (County of Los Angeles, City of Lindsay,
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County of Tulare, County of Fresno, and Southeast Area Animal Control Authority). The petition was filed
in the Superior Court of California, County of Sacramento, on or about July 18th, 2003.
30 E.g., Connell v. Superior Court, 59 Cal.App. 4th 382 (1997).
31 The Legislature delegated the responsibility for reviewing state mandates to a special committee in the
Assembly. That ad hoc review committee recommended to the Legislature that no decision be made on
the Hayden legislation, pending an audit of some of the shelters by the Bureau of State Audits and
pending litigation initiated by the Department of Finance. However, the mandates associated with the
Hayden legislation were eliminated during the last stages of extended budget debates before a new budget
was approved in the summer of 2003.
32 Commission on State Mandates, Statement of Decision, p. 37.
33 California State Auditor, Bureau of State Audits, Report 2003-106 (October 2003).
34 Commission on State Mandates, Statement of Decision, pp. 15-16.
35 Business and Professions Code section 4855 requires record keeping associated with veterinary medical
care, as determined by the California Veterinary Medical Board. The CVMB regulations that spell out the
specific information required are enumerated in section 2031 of the California Code of Regulations.
36 Commission on State Mandates, Statement of Decision, p. 22.
37 Commission on State Mandates, Statement of Decision, p.38
38 Commission on State Mandates, Statement of Decision, p. 38.
39 Commission on State Mandates, Statement of Decision, p. 38.
40 Commission on State Mandates, Statement of Decision, p. 38.
41 Commission on State Mandates, Statement of Decision, p. 24.
42 Commission on State Mandates, Statement of Decision, pp. 33-35.
43 Commission on State Mandates, Statement of Decision, p. 19.
44 Government Code sec. 17556.
45 Food and Agricultural Code sec. 31752.
46 California State Auditor, Bureau of State Audits, Report 2003-106.
47 “. . .state and local entities participated extensively in the administrative process for the Peace Officers
Procedural Bill of Rights and animal adoption mandates. However. . .we questioned a high level of costs
during our review of claims. These problems highlight the need for structural reforms of the process to
ensure that local entities claim reimbursement for activities that are consistent with legislative intent and
the parameters and guidelines. Additionally, changes are needed to estimate mandate costs better.
Audits of mandate reimbursement claims do not occur in time to identify and correct potential claiming
errors that can lead to reporting and payment of nonreimbursable costs for a mandate. California State
Auditor Report 2003-106, p. 55.
48 The Peace Officer’s Procedural Bill of Rights Act was even more inappropriately funded than the animal
adoption legislation, which is probably due to the fact that as to the latter there was a Hayden legislation
representative, Lois Newman, at the animal adoption legislation hearings to contest the grossly overstated
claims made by the test claimants.