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BEFORE THE HEARING EXAMINER FOR THE CITY OF AUBURN
Phil Olbrechts, Hearing Examiner
RE:
Appellant: Robert Johnson
Dangerous Dog Appeal
Police Incident Report No. 17-15638
FINDINGS OF FACT, CONCLUSIONS
OF LAW AND DECISION.
INTRODUCTION
Robert Johnson appeals dangerous dog declarations issued for his dogs Astro and Xena
by the Auburn Police Department. The declarations are affirmed and the appeal is
denied.
ORAL TESTIMONY
Note: This hearing summary is provided as a courtesy to those who would benefitfrom
a general overview of hearing testimony. The summary is not required or necessary to
the decision issued by the Hearing Examiner. No assurances are made as to
completeness or accuracy. Nothing in this summary should be construed as a finding
or legal conclusion made by the Examiner or an indication of what the Examiner found
significant to his decision. Findings of Fact and Conclusions of Law are issued in
separate sections of this decision starting at Page 12.
Preliminary Issue — Improper Notice
Joseph Marshall, Appellant's attorney, stated that the notice was served by email, not
certified mail; this is not in accordance to city code.
Robert Johnson, Appellant, testified that he first received the e-mail from Jamie Heslin
through his wife. He responded to the e-mail through voice mail and email. He received
no response from Ms. Heslin. He had 10 days to appeal and after some time went by
he looked at the city code, which stated that he should specifically be served in person
or through regular certified mail. He was confused by the paperwork from the city of
Dangerous Dog Appeal P. 1 Findings, Conclusions and Decision
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Auburn, which delayed him. He overnighted the paperwork to the Chief of Police. He
then received a call from an administrative person who helped him schedule the
hearing. After meeting with the Assistant Chief of Police, he was supposed to receive
a decision within 10 days. It arrived on day 13.
Under cross examination by the City, Mr. Johnson clarified that he received the notice
in an e-mail from his wife on December 5, 2017. Regarding further communication
from the City, Mr. Johnson stated that he believes aside from the a -mails and phone
call with the Assistant Chief of Police, they picked up a packet after meeting with the
assistant chief of police. He received one packet via email prior to sending in their
request and another arrived via certified mail after meeting with the Assistant Chief of
Police. He noted that he had an email string of his follow-up with Ms. Heslin which
he did not include in the exhibits.
He confirmed that the packet he received on December 5th notified him that the dog
was to be declared dangerous. As far as he could tell, the packet informed him of his
rights. The original packet had only a time, but no date of the hearing which confused
him. They received the proper noticing via certified mail after their meeting with the
police department. He believes that this was identical from the original notice with no
correction to the title.
The City asked if he was not able to properly prepare for this hearing because of any
notice issues. Mr. Johnson responded he was able to properly prepare for the hearing
and did not ask for a continuance from the police. The administrator found a time that
worked for him when scheduling the hearing.
Ms. Heslin testified she worked for Animal Control during November and December
of 2017. She is familiar with the Johnson case. She stated that she spoke to Mrs.
Johnson about declaring their dog a dangerous dog. She asked Mrs. Johnson if she
could email the notice and Mrs. Johnson agreed. Ms. Heslin did not know that the use
of email was an issue since she had only been working at animal control for four days.
She noted that there was also an issue with the form they had been provided. Once she
had sent the email she discovered that this wasn't proper procedure. She contacted the
city clerk's office, who sent the packet again through certified mail. A correction notice
was sent with the package. Animal Control received a certified mail receipt from the
post office on December 26th which noted that the Johnson's had received the corrected
form on December 20th.
Under cross examination Ms. Heslin confirmed that the issue of sending the notice via
email was due to her being unaware of that part of city code; she was still training when
she took the case and had been with Animal Control a brief time. Regarding the issues
with the form, they didn't realize that a date and time had to be pre -loaded in the form.
She stated that she did not have a copy of the form and was unaware of the date of the
hearing.
Dangerous Dog Appeal p. 2 Findings, Conclusions and Decision
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Under redirect examination, Mr. Ruth asked Mrs. Heslin to expand on what she meant
by the form being incorrectly filled out. Ms. Heslin explained that the city clerk had
downloaded the form onto a K-drive, a way for everyone in the department to get
paperwork from different departments. The form already had information in that
section. Once this was pointed out to them, the corrected form was uploaded. This was
the form received by the Johnson's on December 20th.
Mr. Marshal argued that the code does not require a showing of charges made. It simply
says how notice shall be provided and it was not provided initially.
Mr. Ruth argued that the code does not say the designation would be dismissed without
prejudice; there is not a basis to dismiss the hearing. The notice was regarding a
different hearing than the one today. There is no prejudice shown that this hearing has
been diminished or defected due to lack of notice. According to Page 7 of the admitted
packet, the administrative lower hearing was held on December 20th and the
declaration was sent December 27th. This was within the 10 days. Mr. Ruth argues the
Johnsons received abundant notice of the hearing and their rights through email, and a
corrected notice within the time frame. He does not believe there is a basis for
dismissing the hearing nor the designation.
Mr. Marshal argued that the violation was not merely procedural via the means that the
notice was sent, but also, as testified, Mr. Johnson was missing information regarding
the hearing part of the initial process.
Case in Chief— Dangerous Doiz Declaration — City Witnesses
Kamilla Brown, owner of the alleged attacked dog, stated that the incident occurred
November 29, 2017. Her dog's name is "Charlotte," is five years old and is a German
Shepherd mix. Mrs. Brown was walking Charlotte on the east side of 64th Avenue S
along a fenced home that keeps goats, a route that she noted having taken many times.
Charlotte was leashed with a full body harness. Mrs. Brown had stopped to look at the
goats with Charlotte and was ready to proceed from the sidewalk to South 296th Street.
Referencing photos provided by Mr. Ruth, Mrs. Brown stated that she crossed 296th
and was walking on the sidewalk toward 61 st Avenue S. As she passed the back side
of the Johnson's residence, which she noted had a fence that appeared to have differing
parts, she heard two dogs barking. She was keeping Charlotte calm from the barking,
when the dogs burst through the fence and were on Charlotte. At this time, Charlotte's
leash was around her right wrist and she was holding the leash with her left hand.
Charlotte was on her left, the street side. She saw no posturing from the dogs; they
attacked Charlotte immediately.
While Charlotte tried to get away, Mrs. Brown was pulled down the street, lost her
balance and was dragged to the ground. She started yelling for help. At this point, they
were on the street. She doesn't remember if in the beginning it was one or both dogs
attacking Charlotte during this time. Charlotte appeared afraid and trying to get away.
They ended up on the other side of the street on the gravel across from the Johnson's
Dangerous Dog Appeal p. 3 Findings, Conclusions and Decision
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residence. Charlotte remained leashed and the force of the leash left marks on Mrs.
Brown's fingers and hand. She tried kicking the lighter colored dog that was trying to
bite Charlotte. Mrs. Johnson and another person came after a few minutes. Mrs.
Johnson was trying to pull the lighter colored dog off Charlotte. The other dog was
attacking Charlotte's chest. Mrs. Brown stated that Mrs. Johnson kept saying that she
was so sorry because she couldn't get the dogs off, and the woman with Mrs. Johnson
looked afraid and kept shaking her head because she wasn't able to help.
Mrs. Brown saw another woman with a leash and said, "Please help, they're killing
her!" The woman was very calm and was able to pull the lighter colored dog off
Charlotte's head and the other dog off Charlotte's chest. She does not know if the
second dog stopped attacking after the first one was pulled off. After the dogs had been
pulled off Charlotte, Mrs. Brown was assisted by bystanders who helped her up and
retrieved her phone and one of her shoes. Her dog was shaking but was able to get up
and walk. Charlottes ear was torn, there was blood on her head, bruising on her chest
and she was limping.
Mrs. Johnson offered to take her to her veterinarian. Officer Fetters offered to drive
Mrs. Brown home, so she could take Charlotte to her own vet. During this time, Mrs.
Brown did not speak to Mrs. Johnson. Officer Fetters had alerted the vet that Mrs.
Brown was coming. The officer noted some of the dog's injuries and took photos.
Mrs., Brown proceeded to describe what occurred at the vet's office. Mrs. Brown
stated that the vet checked the dog over and found puncture wounds on her leg from
being bitten. Charlotte had a total of 13-16 wounds on her chest, ears, and her head
that they stitched.
Mrs. Brown stated that the vet said Charlotte needed surgery. Mrs. Brown's husband
left work to join her at the vet. She did not see Charlotte once she had been shaved for
surgery, but her husband did. Charlotte returned home shaky, whining and on
prescription medication. She had drain tubes in her neck, under her arm, in her leg, in
her chest, and she had stiches in several places on her body. Mrs. Brown described a
photo taken by Ms. Heslin that showed Charlotte's condition. They had to return to
the vet every few days to be checked over. Charlotte progressed steadily and had laser
treatments to repair the damage to her skin. As of the hearing, Charlotte's fur has
grown out, she's walking again, although she did not do so until the removal of her
tubes two weeks after surgery, has scar tissue you can feel when you pet her, and has
hanging skin from the punctures to her chest but that is purely cosmetic. Charlotte has
some anxiety when walking near fences on walks.
After taking Charlotte to the vet, Mrs. Brown went to get medical treatment for herself.
She had a bruised right hip and contusions in her right hand. In addition, her right
knee was scraped and bruised, she had an injury to her shin, and she had multiple
wounds on her left big toe, including several puncture wounds, that she believes she
received from the Johnson dog that she was trying to kick off charlotte. She went to
Urgent Care and then St Francis Hospital. She had x-rays, a hole was drilled in her
Dangerous Dog Appeal p. 4 Findings, Conclusions and Decision
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toenail to relieve pressure. She received a medical boot and prescription medication.
At the hospital, her wounds were cleaned, and she was given intravenous fluid. She
also received a medical boot and prescription medication from Urgent Care.
Subsequently, Mrs. Brown visited a podiatrist four times for follow-up treatment. She
used the medical boot for four weeks after the incident and participated in exercises to
get the motion back in her foot joint. As of the hearing, her foot still has scar tissue
and her toe is swollen, but the toenail has grown in to half the nail bed. Moreover, she
takes self-imposed precautions when walking and wears soft shoes. She has some
remaining pain in her shin and receives medical massage treatment
Under cross-examination by Mr. Marshal, Mrs. Brown testified that she is uncertain
what type of mix Charlotte is but that she looks like a cattle dog. She denied Charlotte
had experienced any abuse prior to her adoption.
Portions of the route they followed at the time of the incident have sidewalks. Charlotte
enjoys watching the goats they pass along the route, but she does not interact with them.
At the time of the incident, she was on the west side of the road and the sidewalk ended,
so her and Charlotte crossed over to a shoulder at a place where three roads intersect.
The sidewalk is not visible in the exhibited photos because it is to the right of where
the photo was taken.
Mrs. Brown again described the incident under questioning from Mr. Marshal, adding
that Charlotte will bark if not calm and that she does not mark fences and usually prefers
grass. Mrs. Brown stated that she did not recall exactly where Charlotte when the
incident occurred. She stated she did not see if the fence the other dogs came through
was just one broken slat nor whether the dogs came side by side or one after the other
as everything happened too fast. She was on her side when she began trying to kick
the other dogs. She stated Ms. Heslin took pictures in her home. Charlotte was never
near the fence, and she did not see her scratch at it at any point.
Under redirect examination from the City, Mrs. Brown testified that Charlotte has been
with her for four years and she has not acted aggressively to other animals and she
cannot recall her barking at the goats except when the goats are right against the fence.
Charlotte does not growl around other dogs or pull against her chain, and she follows
commands when near dogs she does not like. Further, she has never bitten or fought
another dog. The day of the incident, Mrs. Brown does not recall Charlotte relieving
herself on the fence or along the planting strip, and again she noted Charlotte never
touched the fence and was on the sidewalk. She also said that she was motivated to
kick at the other dogs because they were biting Charlotte's ears. Dogs have never come
through the fence prior to this incident, and she did not have time to cross the road to
avoid it.
Officer Fetters testified that she is an Animal Control officer for King County. She has
been a field officer for 6 years. She is a graduate of the Washington State Animal
Control Academy. At King County Animal Control, the shelter officers take care of
Dangerous Dog Appeal p. 5 Findings, Conclusions and Decision
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animals that have been brought in, while field officers take care of cruelty and
negligence concerns, barking complaints, animal bites, and human bites.
She testified that she did not see the beginning of the incident but took part in some of
it. She mistakenly turned onto 296th Street on her way to lunch and saw part of the
attack. She came back the next day and took a photo from where she first saw the
incident. (Exhibit 7, Photo 80) When she came over the hill she noticed a little tan/fawn
dog in the middle of the road. She saw a woman that she believes was Mrs. Johnson
chasing after the dog and pulling on its tail. Officer Fetters thought the woman was
trying to keep the dog out of the road, but she then noticed a woman on the ground to
her right in the emergency pull off area. She initially thought that there were two dogs
attacking that woman. She then saw a third dog and she thought three dogs were
attacking the woman. She knew the dog in the middle was a pit bull terrier but was not
sure immediately what the other two. After approaching, one looked like a cattle dog
mix and the other a pit bull terrier mix. She noted that she did not see what happened
between getting out of her vehicle and the third dog joining the fray. She stated the
smaller brown dog was latched to the cattle dog's chest and the fawn dog was towards
the rear end of the cattle dog. The fawn dog would bite and let go then run around and
bite again, which she believes was occurring because Mrs. Johnson was trying to get
the fawn dog off the cattle dog. Officer Fetter indicated the woman on the ground
appeared to be in distress and was screaming "Please, please help! They're going to
kill her." As to whether the other dogs were going to kill the cattle dog, Officer Fetter
said at the time she did not know what was happening so anything was possible. She
used her pole to hit the fawn colored dog in the nose. The fawn dog was still running
around alternating between trying to bite Mrs. Johnson and the cattle dog. After hitting
the fawn dog in the nose, Officer Fetter was able to get the catch pole's rope around its
neck. She stated that the use of a catch pole is the best way to get a dog to release. It
injures its senses and it avoids someone putting their hand where they could be bitten.
She has been turned on before while using the pole but hasn't been bitten by a dog.
After getting the pole around the fawn dog, she had to use a lot of effort getting it into
her truck because it kept trying to return to attack the cattle dog. She explained the
dog's mentality was not letting her get it into her truck and she had to put it in the front
of her truck to block the view of the dog. After getting the dog in her truck, she noticed
a man trying to go help with the other dogs, but she got him instead to hold the pole
with the fawn dog while she grabbed her second pole. She explained the situation to
the man and just requested he hold the pole while she got the other dog. When she got
over to the two dogs, the brown one had finally released, and Mrs. Johnson was holding
onto her, but the dog was still trying to attack. At that time, she was able to get both
dogs into her truck.
Once the dogs were in her truck, she spoke to those present and Mrs. Johnson claimed
ownership. Officer Fetter asked if there were any orders out for the dogs and Mrs.
Johnson said nothing like that has ever happened before. She asked Mrs. Johnson if she
wanted the dogs back and told her that it would require quarantining the dogs and what
that entailed. Mrs. Johnson agreed, and Officer Fetter explained she would talk to the
other dog owner before bringing the dogs back to the Johnson home. Subsequently,
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she delivered the Johnson's dogs back home. She offered a ride home to Mrs. Brown.
After returning Mrs. Brown and Charlotte to their home she checked Charlotte's gums
to check for signs of loss of oxygen or blood. When she checked the gums, they
appeared pale, which indicated slow blood flow. Then, after dropping them off she told
Mrs. Brown she would meet them at her vet. Officer Fetter explains she went to the
vet and this is where she had a chance to look at Charlotte.
Officer Fetter described the injuries she saw on Charlotte including a laceration to the
ear, excessive blow to the head, and bruising. She has seen around 15 to 20 dogs injured
by other dogs before and stated that this incident was one of the worst she has seen.
She clarified that it was worse only because it is a larger breed and there were two pit
bulls attacking. She can distinguish dog breeds as she has worked in the animal field
for about six years and has taken many classes about breeds. Officer Fetter testified
that she did not see an injury on Mrs. Brown, but the woman did say she thought she
had been bitten on her foot.
Officer Fetter examined the Johnson's after the incident. She noticed one board was
slanted and one was missing. She does not know if it was on the ground or had been
missing for an extended period. The only time she has gone back to the location of the
incident was the day after to take photos for her statements to Animal Control in
Auburn. The photos included the location of the incident and of the fence. (Exhibit 7)
She wanted to show which street it happened because it is a place where three streets
intersect, and she took a photo of the fence, Charlottes injuries and a wound to Mrs.
Johnson's hand as well.
Under cross-examination by Mr. Marshal, Officer Fetters testified that the brown dog,
"Xena," recalled immediately after being put on the pole and into her truck. It was the
fawn colored dog, "Astro," that would not recall. She confirmed that Astro recalled —
meaning that she was able to respond to a command - from the incident eventually but
was still hyperactive. She added that Xena was scared and cowered when she took her
from her truck.
Officer Fetter said she took photographs of the fence so that Auburn Animal Control
could see where the house was and where the fence ended. Both parties agreed the
dogs had somehow gotten out of the fence and she wanted the City to see where it
happened. She does not work for the city of Auburn, so it was not part of her job to
check for any additional marks along the fence.
Under redirect examination by Mr. Ruth, Officer Fetters confirmed it is normal for dogs
to be aggressive at one moment and then become less aggressive. Based on her
training, she believes the dogs would not have stopped attacking if people had not been
able to contain them.
Under re -cross examination by Mr. Marshal, Officer Fetters stated her training was not
specific to pit bulls but to dogs in general. She does not believe only pit bulls attack.
Dangerous Dog Appeal p. 7 Findings, Conclusions and Decision
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Under cross examination by Mr. Marshal, Ms. Heslin noted that there had been no prior
incidents with Xena and Astro
Case in Chief — Dangerous Dog_ Declaration — Appellant Witnesses
Under direct examination by Mr. Marshall, Mrs. Freeman testified that she is a dog
trainer at Petco and works with All American Service Dogs which provides service
dogs to veterans with PTSD and traumatic brain injuries. She has two and a half years
of amateur dog training experience. She has worked at Petco since August 2017 and
will soon complete an animal behavior course. As of the hearing date, she has taught
several dog training courses at Petco including the American Kennel Club's Canine
Good Citizen (CGC) course. She testified that she taught the Johnson's dogs, Xena
and Astro, starting in January of 2017. Both dogs passed the class after a six -week
training period plus three additional classes. She noted that the Johnson's were very
active in the training process.
Under cross examination from Mr. Ruth, Mrs. Freeman stated that based on her
experience different types of dogs bark for distinct reasons. Herding dogs will bark at
most things while prey -driven dogs bark for territorial reasons. She noted that there are
a variety of temperaments in the dogs who have classes at Petco. Training uses rewards
and positive reinforcement to reach the expected behavior. Mr. and Mrs. Johnson both
took part in the class over the weeks.
Under direct examination by Mr. Marshall, Mrs. Johnson testified she moved to Auburn
two years ago and her address is 29589 63rd Ct South. She works for a public
accounting firm as an insurance report officer. They have had Xena for four years and
Astro since September of 2017. She has not had issues with the dogs fighting before.
She works from home every Wednesday and Thursday, and she was working from
home November 29, 2017. On that day, she was alerted to the incident as her home
office faces the street, and she looked out the window and saw Astro, the fawn colored
dog, going through the fence and a lady on the ground across the street with Xena
holding the lady's dog by the ear. She ran outside and went through the hole in the
fence. At that time, both dogs were in the street. She saw Mrs. Brown and Charlotte
both on the ground with Xena on the backside of Charlotte, holding her by the ear.
Meanwhile, Astro was towards Charlotte's chest. She proceeded to grab Astro by the
tail and drag him into the middle of the street. Mrs. Johnson saw another woman in the
street and asked her to grab the Xena, but the woman declined explaining she was
scared. Mrs. Johnson tried repeatedly yelling at Xena to "leave it" but Xena would not
listen. Throughout this time, Astro was barking and trying to escape Mrs. Johnson's
hold until he bit her, and she let go allowing him to go back to Xena and Charlotte. She
had gone to reach for Astro again when Officer Fetters arrived.
She stated that the officer's appearance was a huge relief to her. She confirmed Officer
Fetters' testimony regarding her use of the catch pole. Once Officer Fetters led Astro
away, Mrs. Johnson pulled Xena by the tail. Xena still had a hold of Charlotte and
Mrs. Johnson continued trying to yell at Xena to "leave it" until Mrs. Johnson hit Xena
Dangerous Dog Appeal p. 8 Findings, Conclusions and Decision
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which caused Xena to let go and allowed Mrs. Johnson to drag her away. Officer Fetters
was ready with another pole that she used on Xena and took her back to her truck. Mrs.
Johnson approached Mrs. Brown and apologized, asking Mrs. Brown if she was okay
and offering to take her to the vet. Charlotte was lying on the ground in a daze and not
making any noise. Mrs. Johnson testified that Officer Fetters then offered to take Mrs.
Brown and Charlotte to the veterinarian. She added that Officer Fetters told her to get
her thumb looked at because it was bleeding. Officer Fetters also took a picture of her
thumb. Mrs. Johnson then went back into her house, called her boss and tried calling
her husband. After cleaning the bite on her thumb, Officer Fetters came to her door
and asked if she wanted the dogs released back to her and Mrs. Johnson replied "Of
course, I do." The officer brought them back and Mrs. Johnson put them in their crates
and yelled at them.
Mrs. Johnson testified that they have a dog walking service called Frolic, and, before
the incident, the service would come once a day and walk their dogs around the
neighborhood for 30 minutes. The service takes no more than two dogs on a walk at a
time. She confirmed both dogs completed the previously mentioned CGC training.
Under cross examination by Mr. Ruth, Mrs. Johnson stated that when she went through
the fence she saw that one board was cracked and had fallen outside the fence and
another was kind of slanted, hanging from the top. She would be speculating to state
exactly why the fence was damaged. One of her husband's friends inspected the fence
after the incident. She noted that their fence had been hit by cars twice in the time
they've lived in their house, but that place was further up the fence than where the
damaged/missing boards were located. In response to questioning about the age of the
house and the fence, Mrs. Johnson deferred to her husband, who stated that the house
was built in 2003 and that the current fence was not the original. Mrs. Johnson stated
that either the fence nails gave way, or the board split. The dogs had not gone through
the fence before. She has seen Astro jump on the fence.
Mr. Ruth asked about Mrs. Johnson's testimony regarding dragging Astro away. He
asked if it was her first attempt to drag him. In her first attempt to drag Astro away he
bit her. She must have reactively let go because he went back to Charlotte and she had
to grab Astro again which is when Officer Fetters came.
Robert Johnson, Appellant, testified that he does IT work for a Real Estate company.
He and his wife purchased the house in July of 2015. The fence was in at that time. In
September 2015 the fence was struck by a car that went through the corner section of
the fence. They repaired the fence at that time. He periodically checks the fence and
has found a place where cars have struck the fence since that time. He was not present
for the alleged attack incident and was out of town. His friend came and patched the
fence with boards and screws. Subsequently he has reinforced and replaced portions
of the fence with new boards and screws. Prior to the incident he had not noticed
damage to that section of fence. After the incident he found disturbed soil and scratches
on the fence three sections down from the area where the dogs had come through.
These were not there when he left to go out of town. He took a photo which is attached
Dangerous Dog Appeal P. 9 Findings, Conclusions and Decision
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to the Appellants brief. He is now aware of his property boundaries based on a survey
that was delivered a week before the hearing. The survey indicated that the property
line sits 3 to 4 inches outside of the fence, and several feet outside the fence at the
corner of their lot.
Under cross examination by Mr. Ruth, Mr. Johnson confirmed that according to
neighbors, some of the unmatched sections of his fence had been replaced by the former
owners. The spot where the dogs exited has not been replaced except for a single board
replaced to remove graffiti. The dogs exited by pushing through the nailed boards.
Prior to the incident he had seen no disrepair to that section of the fence. It appeared
to him that the dogs went right through the fence. Astro may have jumped on it. He
had left to go out of town the night before the incident. He returned approximately 7
days after the incident. The scratch marks noted on the photo he provided were not
there since they had been in the house. The Johnsons maintain the planting strip along
their property.
Appellant Closing Argument
Mr. Marshal argued that Mrs. Brown's lack of recall of where Charlotte was
immediately prior to the incident, plus evidence of scratch marks, indicates that Mrs.
Brown was committing trespass. If a dog is on a fence, that is trespass. A dog can't
be declared dangerous because of trespass or provocation. The injury to Mrs. Brown's
toe was caused by her own actions and doesn't rise to level of severe injuries per the
dangerous dog code. The city should be required to prove which specific dog cause
which injury. The city cannot prove the level of injury per code.
City Closing Argument
Mr. Ruth stated that the RCW doesn't exclude more restrictive definitions by local
ordinance for dangerous dog. Because there is no exclusion, there is no conflict
between the RCW and Auburn's dangerous dog definitions.
The Auburn ordinance has different requirements for dangerous dog definitions.
Regarding the infliction of severe harm on a human, Astro was identified as the one
biting Mrs. Brown and the severity of her injuries was established by photos and Mrs.
Brown's testimony. Based on evidence regarding Urgent Care, the hospital, a
specialist, and continuing medical issues this is severe injury. The city term is
undefined for severe injury and state law is not in play.
Regarding inflicted severe injury on a domestic animal without provocation when dog
is off its property, both dogs fall under this established by photos, number of sutures,
the testimony of Mrs. Brown and, in particular, the testimony of Officer Fetters
regarding her experience with dog attacks. Regarding subsections D & E, the
Johnson's dogs can be declared dangerous by the city based on breed.
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Regarding the appellants argument of trespass, Mrs. Brown testified that Charlotte was
on the sidewalk and not on the planting strip. No testimony links damage to the fence
or property to Charlotte or puts in on that day. Regarding the broken fence, this is not
a mitigating factor. The fence was less than five years old and in good condition based
on Mr. Johnson's testimony. The code requires restrictive restraints on dangerous dogs
because normal restrictions such as a fence or a leash are not found to be sufficient
enough. Using a faulty fence as a defense is contrary to the code. There is no evidence
to provocation, in terms of scratching by Charlotte. It would be a reach to say
scratching is a provocation, which is a small act relative to vicious attack. Regarding
the determination of which dog cause injury, there is evidence from reports and
testimony of the officer that both dogs were causing injury to Charlotte. Regarding the
issue of notice, the code requires notice by mail and a hearing within ten days, both of
which were done. The code doesn't require anything else. Timing differences and
inconveniences are not violation of the code. This hearing is a de novo hearing. Any
question regarding the initial notice doesn't apply to this hearing.
EXHIBITS
The nine exhibits identified in the "Exhibit List" presented by City staff were entered
into the record at the April 18, 2018 hearing, excluding all medical and veterinary
records. The following exhibits were also admitted during the hearing:
Ex. 10: Appellant's Pre -Hearing Brief
Ex. 11: City Response to Pre -Hearing Brief
Ex. 12: American Kennel Club's Canine Good Citizen Certificates for Xena and
Astro
Ex. 13: Appellant Post -Hearing Brief
Ex. 14: City Post -Hearing Brief
Ex. 15: City Response to Post -Hearing Brief
Ex. 16: Appellant Response to Post -Hearing Brief
FINDINGS OF FACT
Procedural:
1. Appellant. The appellant is Robert Johnson. His dogs, the subject of this dangerous
dog declaration, is a brown pit bull named Xena and a fawn pit bull named Astro.
2. Hearing. The Hearing Examiner conducted a hearing on the appeal at 5:30 pm at
Auburn City Hall in the Council Chambers on April 18, 2018. The record was left
open through May 4, 2018 for post -hearing briefing.
3. Notice of Dangerous Dog Declaration and Police Chief Meeting. The alleged dog
incident under appeal occurred on November 29, 2017. On December 4, 2014 the City
of Auburn emailed notices to Mrs. Johnson advising her that the City of Auburn had
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made a preliminary decision that Astro and Xena were to be declared dangerous dogs
due to the November 29, 2017 incident. The notices advised that Mrs. Johnson could
meet with the police chief on an unspecified date at 9:00 am to present evidence on
whether the dogs should be declared dangerous. Mrs. Johnson verbally agreed to notice
by email. See Heslin testimony. The notices had blanks for the date of the meeting
with the police chief or designee and these blanks had not been filled in. See Ex. 5.
The City subsequently sent the notices by certified mail with the addition that the
meeting with the police chief or designee would be held on December 20, 2017. The
City received notice from the post office on December 26, 2017 that the certified mail
copies had been received by the Johnsons on December 20, 2017. Ex. 4, p. 7. Mrs.
Johnson met with the assistant police chief on December 20, 2017. The Johnson did
not request a continuance or any additional time to present evidence and/or argument
to the assistant police chief. See Robert Johnson cross-examination. The assistant
police chief issued a determination on December 27, 2017, Ex. 3, declaring Xena and
Astro dangerous dogs under ACC 6.01.010(A)(13). Robert Johnson appealed this
determination to the hearing examiner by the filing of the "Hearing Examiner Appeal
Form" on January 11, 2018.
Substantive:
3. Xena and Astro Attacked Charlotte on November 19, 2017. It is determined that
Astro and Xena attacked Charlotte on November 19, 2017. On that date, Kamilla
Brown was walking Charlotte, a German Shepherd mix, along S. 296`h Street.
Charlotte was leashed with a full -body harness. At the time of the attack, Mrs. Brown
and Charlotte were on the public sidewalk on the back side of the Johnson residence.
The Johnson residence was separated from the sidewalk by the Johnson's fence and a
planter strip owned and maintained by the Johnsons that separated the fence from the
sidewalk. Astro and Xena broke through the fence and went after Charlotte. Charlotte
tried to get away and pulled Mrs. Brown into the street. Mrs. Brown fell and was
subsequently dragged by Charlotte. Charlotte remained leashed and the force of the
leash left marks on Mrs. Brown's fingers and hand. Both Astro and Xena proceeded
to attack Charlotte. Mrs. Brown tried kicking Astro to get him off Charlotte. Mrs.
Brown suffered puncture wounds to her big toe as a result of this activity and had to
get medical treatment for her toe. Mrs. Johnson and another person came after a few
minutes. Mrs. Johnson tried to pull Xena off Charlotte while Astro continued to attack
Charlotte. Mrs. Johnson succeeded in pulling Xena away, but was then according to
her own testimony bitten by Xena, who then returned to attacking Charlotte. An animal
control officer, Officer Fetters, subsequently appeared. Officer Fetters testified she
observed both Astro and Xena attacking Charlotte when she arrived on the scene.
According to Officer Fetters, she secured Astro with a catch pole when she was running
around alternating between trying to bite Mrs. Johnson and Charlotte. After Officer
Fetters had secured Astro, Mrs. Johnson had been managed to get a hold of Xena, who
was still struggling to attack Charlotte. Officer Fetters then succeeded in securing
Xena with a second catch pole and placing Xena in her vehicle as well.
Dangerous Dog Appeal p. 12 Findings, Conclusions and Decision
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The testimony of Mrs. Brown, Mrs. Johnson and Officer Fetters all differed to a minor
degree as to what parts of Charlotte were attacked. Mrs. Johnson testified that Xena
attacked Charlotte's head and Astro her chest. Officer Fetters testified that Xena
attacked Charlotte's chest and Astro her rear end. Mrs. Brown testified that Astro
attacked Charlotte's head and Xena her chest. It's quite possible that all of the
testimony is completely accurate as the observations could have been made at different
points in time. It's also possible that given the trauma and brief period of the incident
that the perceptions on specific points of attack may have been inaccurate by one or
more witnesses. All three witnesses, however, including Mrs. Johnson, saw both Xena
and Astro attacking Charlotte. It is understandable that there could be some
misimpressions about the precise body location of the attacks, but it is much less likely
that the witnesses would all be incorrect on the fact that both dogs were involved in the
attack on Charlotte. For these reasons, it is determined that both Astro and Xena
attacked Charlotte on November 19, 2017 along the back end (on the public street and
sidewalk) of the Johnson residence at S. 296th Street.
4. Charlotte Did Not Provoke Xena and Astro. Charlotte did nothing to provoke the
attack from Astro and Xena on November 19, 2017. The Johnson's assert that
Charlotte scratched on their fence to provoke the attack. The only evidence they have
of this activity is scratch marks on their fence. There is no evidence that Charlotte
created these scratch marks. Mrs. Brown denies that Charlotte scratched the fence and
testified that at all times while on the adjoining sidewalk, Mrs. Brown was located
between Charlotte and the fence. Mrs. Brown also testified that Charlotte did not bark
at Xena or Astro. Mrs. Brown's testimony was completely credible and there is no
reason to find it inaccurate on this issue. It is determined that Xena and Astro attacked
Charlotte without provocation on November 19, 2017 along the back end of the
Johnson residence at S. 296th Street.
. Charlotte did not Trespass On to the Johnson Planter Strip. Charlotte did not enter
upon any property owned by the Johnsons on the date of the attack. Mrs. Brown
testified that Charlotte had not gone onto the Johnson planter strip on the date of the
attack. Mrs. Brown's testimony was completely credible and there is no reason to find
it inaccurate on this issue. It is determined that Charlotte did not trespass onto Johnson
property at the time of the attack.
6. Charlotte's Injuries. According to the testimony of Mrs. Brown, Charlotte had a
total of 13-16 wounds on her chest, ears, and head resulting from the attack that had to
be stitched by the veterinarian. Officer Fetter described the injuries she saw on
Charlotte including a laceration to the ear, excessive blow to the head, and bruising.
She has seen around 15 to 20 dogs injured by other dogs before and stated that this
incident was one of the worst she has seen. These injuries qualify as severe under the
civil preponderance of evidence standard since they involve multiple bites deep enough
to warrant stitches.
It is unknown precisely how much of the injury was inflicted by Xena as opposed to
Astro. However, from the record it is determined under the preponderance of evidence
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standard that both dogs were heavily involved in the attack. All three witnesses,
including Mrs. Johnson, testified that both dogs went after various parts of Charlotte's
body. From the pictures of the dogs in the record, there is nothing to reasonably suggest
that either Xena or Astro lacked the musculature or canines to bite deeply enough to
create the need for stitches. More likely than not, Xena and Astro both caused severe
injury to Charlotte.
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner. ACC 6.35.020(D) grants the Hearing Examiner
with the authority to review appeals of a dangerous dog declaration.
2. Veterinary and Medical Records Not Admitted. The veterinary and medical
records submitted by the City are not admitted into evidence because the medical and
veterinary professionals who authored them were not available for cross-examination
as potentially required by the appearance of fairness doctrine. Contrary to the
arguments made by the City, there is little question that dangerous dog appeals are
quasi-judicial proceedings and as such are subject to the appearance of fairness
doctrine. However, the City is likely correct that medical and veterinary records are
generally admissible under the regular business exception to the hearsay rule. If the
medical and veterinary records are admissible under the regular business exception,
their admission very likely would not violate the appearance of fairness doctrine.
Ultimately, the issue of whether the documents in question actually do meet the regular
business exception need not be resolved in this appeal since Astro and Xena qualify
as dangerous dogs even without admission of the medical/veterinary records.
The City's briefing primarily takes issue with the Examiner's preliminary ruling that
medical and veterinary records are not admissible under Chrobuck v. Snohomish
County, 78 Wn.2d 858, 870 (1971). The Chrobuck court found that cross-examination
is a due process right where a hearing "assumes distinctly adversary proportions, the
proponents and opponents are represented by counsel, expert witnesses are called,
and complex, technical and disputed facts" are in play. Id. Under the quoted language,
there is little question that the proponents and opponents of this appeal were
represented by counsel, that the hearing assumed distinctly adversary proportions, and
that the authors of the medical/veterinary reports would qualify as expert witnesses.
At least arguably, Chrobuck dictates that the authors of the medical/veterinary records
be present for cross-examination. Despite the fact that Chrobuck's ruling was based
upon constitutional due process, which applies to all administrative proceedings, the
City tries to distinguish Chrobuck on the basis that it's a zoning case and that the
appearance of fairness standard only applies to zoning cases. As shall be discussed,
constitutional due process and more specifically, the appearance of fairness doctrine,
applies to all quasi-judicial administrative proceedings and there's no question that
dangerous dog appeals are quasi-judicial administrative proceedings.
Dangerous Dog Appeal p. 14 Findings, Conclusions and Decision
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The courts have never limited the appearance of fairness doctrine to zoning cases.
Although the legislature has only chosen to codify the appearance of fairness doctrine
for land use proceedings, see Chapter 42.36 RCW, the appearance of fairness doctrine
is a constitutionally based doctrine that " extends the due process requirement that
judicial officers be free of any taint of bias to administrators acting in a quasi-judicial
capacity." See, Side v. Cheney, 37 Wn. App. 199, 202(1984). In this regard, the
appearance of fairness doctrine has been applied to numerous tribunals acting outside
of the land use realm. See Chicago M., St. P. c& P.R. Co. v. WA Human Rights
Commission, 87 Wn.2d 802 (1976)(appearance of fairness applied to Human Rights
Commission); Loveland v. Leslie, 21 Wn. App. 84 (1978)(Human Rights
Commission); State v. Carlson, 66 Wn. App. 909 (1992)(appearance of fairness
applied to superior court judge); Matter of Disciplinary Proceeding Against Haskill,
136 Wn.2d 300 (1998)(appearance of fairness applied to WSBA Disciplinary Board);
In re Disciplinary Proceeding Against King, 168 Wn.2d 888 (2010)(WSBA
Disciplinary Board).
Unfortunately, the courts do not provide much guidance as to what types of
administrative proceedings qualify as "quasi-judicial," although the meaning is fairly
apparent. The most direct definition is provided in Side v. Cheney, supra, In that case
a court determined that a Mayor's personnel decision to not promote a police officer
was not subject to the appearance of fairness doctrine because it didn't qualify as
quasi-judicial, based upon the following analysis:
A test for distinguishing between judicial and nonjudicial functions is
whether the function performed by the agency is one which the judiciary
has historically performed prior to creation of the agency. State ex rel.
Hood v. State Personnel Bd., 82 Wash.2d 396, 400, 511 P.2d 52 (1973). The
courts have never appointed government officials. Moreover, the Mayor did
not act in a role comparable to that of the judicial officer, i.e., hearing
evidence submitted by adverse parties and rendering findings and
conclusions based on that evidence. Consequently, we hold the Superior
Court erred when it applied the appearance of fairness doctrine to the
Mayor.
37 Wn. App at 202.
There is no question that, just as in a land use, personnel or disciplinary hearing, a
hearing examiner in a dangerous dog appeal takes on a role comparable to that of a
judicial officer, i.e. adjudicating rights in an appellate capacity via the issuance of
findings and conclusions after a contested hearing. The appearance of fairness
doctrine clearly applies to dangerous dog appeals.
In its post -hearing briefing, the City argues that the Administrative Procedures Act
("APA") authorizes hearsay evidence if it's reliable and that this principle should be
extended to dangerous dog proceedings. However, the Courts have expressly ruled
that the appearance of fairness doctrine applies to administrative tribunals subject to
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the APA. Specifically, it has been ruled that applying the appearance of fairness
doctrine to the Human Rights Commission is entirely consistent with RCW
34.04.130(6)(c), which allows reversals of decisions subject to review under the APA
"made upon unlawful procedure." See Chicago M., St. P. & P.R. Co. v. WA Human
Rights Commission, 87 Wn.2d 802, 811 (1976).
Similarly, the City argues that the medical records would be authorized by the King
County and Seattle hearing examiners because they authorize the introduction of
hearsay evidence. However, the procedural rules cited by the City apply to land use
proceedings, which in turn are subject to the Chrobuck ruling that hearsay concerning
expert opinions must be subject to cross-examination in adversarial proceedings. The
procedural rules cited by the City provide that hearsay "may" be admitted, not that the
evidence "shall" be admitted. This discretionary language enables Seattle and King
County hearing examiners to exclude hearsay when necessary to protect a party's right
to cross-examine witnesses as dictated by Chrobuck. That same principle is applied
by the examiner of this appeal.
The one argument of merit in the City's briefing is that the medical and veterinarian
records are admissible under the regular business exception codified by RCW
5.45.020. As outlined in RCW 5.45.020, medical and veterinarian records are
generally admissible as exceptions to the hearsay rule. The hearsay rules and their
exceptions have been developed over years of common law prior to codification,
presumably in conformance to due process requirements. Since the appearance of
fairness doctrine is based upon due process and is also applicable to judges, it's
unlikely that records admissible as hearsay exceptions would violate the appearance
of fairness doctrine. Put more simply, it's fairly absurd to conclude that Chrobuck
holds administrative quasi-judicial proceedings to a higher evidentiary standard than
judicial proceedings. However, it's still debatable whether the regular business
exception applies to the records at issue. As to medical records, the regular business
exception applies to regular diagnostic analysis, but not to opinions as to the causation
of particular injuries. See Glenn v. Brown, 28 Wn. App. 86 (1980)(doctor's letter to
extent it made diagnostic conclusions admissible, but inadmissible to extent that doctor
opined that injury was caused by fall at car wash).
In the instant case, the veterinary records contain numerous statements that the injuries
to Charlotte were caused by dog bites. Under the Glenn ruling it's somewhat
questionable whether those comments would qualify as admissible diagnostic
conclusions or whether they extend to the realm of inadmissible conclusions on
causation. Most likely, the general conclusions regarding the source of injury would
be admissible since they are likely necessary for ascertaining prognosis and course of
treatment. The dividing line into inadmissible opinion would likely be if the
veterinarian were to conclude that Astro and Xena were responsible for the bites.
Regardless, in this as with most dangerous dog appeals it ultimately isn't necessary to
admit medical or veterinary records. The City's standard for "severe" injury doesn't
necessitate the opinion or diagnosis of a doctor or veterinarian in a medical or
veterinarian record. As in this case, the observation by a lay person of multiple
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puncture wounds necessitating stitches and resulting from a vicious attack will usually
be sufficient to meet the "severe injury" standard. Under such circumstances,
admitting the records unnecessarily subjects a decision affirming a dangerous dog
declaration to invalidation.
A final issue raised by the City is the failure of the Appellant to provide specific
grounds for its objection of the medical records. This is one point where quasi-judicial
administrative proceedings should be treated differently from judicial proceedings and
the technical application of evidentiary rules. Although the parties in this appeal
happened to be represented by attorneys, that isn't the norm for dangerous dog appeals
and it is doubtful that the City Council intended to create an appeals process that would
require City residents to go through the expense of legal representation in order to
defend the status of their family pet. In order to maintain a "user" friendly appeals
process, it is appropriate for the decision maker to translate the concerns raised by
hearing participants into the procedural principles that only seasoned attorneys may
understand and apply. In this regard, it was appropriate to apply the Appellant's
hearsay objection as an objection under Chrobuck, since Chrobuck's right to cross-
examination is intimately associated with the evidentiary rules against hearsay.
Taking it one step further, perhaps the examiner should have also inquired as to why
the Appellant needed an opportunity for cross-examination, so that the contours of the
Appellant's objection could be more precisely assessed under cases such as Glenn v.
Brown. Ultimately, since the dangerous dog declaration was upheld in favor of the
City, the failure to make that inquiry did not prejudice any of the hearing parties.
3. Irregularities in Notice for Police Chief Meeting. The Appellant requests reversal
of the dangerous dog declaration on the basis that notice of the meeting with the police
chief did not comply with the ACC. It is concluded that defects in notice do not warrant
reversal.
As background, ACC 6.35.020 requires that prior to issuing a declaration that a dog is
dangerous pursuant to Chapter 6.35 ACC, the City must give notice to the dog owner
of an opportunity to meet with the police chief or designee before the police
chieVdesignee makes his or her final decision on whether to make the declaration.
Pursuant to ACC 6.35.020(A), the notice must be served by regular or certified mail
and pursuant to ACC 6.35.020(C), the meeting designated in the notice must be set
within 10 days "following deliver of the notice." As outlined in Finding of Fact No. 2,
the initial meeting notice was sent by email as opposed to regular or certified mail. The
initial notice also did not set a meeting date. For these two reasons, the Appellant
asserts the notice was defective and the dangerous dog determination should be
reversed. However, mailed notice in full compliance with ACC 6.35.020 was
subsequently sent by the City and received by the Appellant on December 20, 2017.
The notice set a meeting date of December 20, 2017, the same date it was received by
the Appellant.
Ultimately, the second notice received by the Appellant on December 20 was in
conformance with ACC 6.35.020. The initial notice was not properly delivered and
Dangerous Dog Appeal p. 17 Findings, Conclusions and Decision
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failed to set a meeting date, but that initial notice did not in any way provide inaccurate
or misleading information. Consequently, there is no reason why the initial notice
should detract from the validity of the valid notice that was received on December 20.
In point of fact, the invalid notice simply provided more notice than the Appellant was
otherwise entitled. The setting of the meeting date on the same date that the notice was
received by the Appellant can certainly be argued to be unreasonable, but ultimately
the Appellant had a full opportunity to present his side of the case at the appeal hearing
before the examiner. The notice of the police chief/designee meeting was in full
compliance with ACC procedural requirements. As such, it is unnecessary to address
the issue of whether reversal of the dangerous dog declaration would be an authorized
remedy for improper notice.
4. No Jurisdiction to Invalidate City Ordinances. The Appellant's assert that the
City's dangerous dog definition conflicts with state law and that the Examiner should
limit review to application of the state dangerous dog definition set by RCW
16.08.070(2). The Examiner has no jurisdiction to apply the state law definition in this
appeal.
In requesting the Examiner to ignore the City code definition, the Appellant is asking the
examiner to exceed the authority granted to him by City code. A hearing examiner has no
inherent authority — an examiner's authority is limited to that expressly granted by statute
and ordinance and those additional powers impliedly necessary to carry out its
responsibilities. See, LeJeune v. Clallam County, 64 Wn. App. 257 (1992). The courts
have historically strictly applied this standard See, Id. (absent an express code provision,
County Commissioners have no authority to reconsider their quasi-judicial decisions);
Chaussee v. Snohomish County Council, 38 Wn. App. 630 (1984), (hearing examiner has
no authority to consider equitable estoppel defense because the examiner was not given
this authority by ordinance or statute); Exendine v. City of Sammamish 127 Wn. App. 574,
586-87 (2005)(hearing examiners do not have the authority to enforce, interpret or rule on
constitutional challenges).
ACC 6.35.020(D) authorizes appeals to the examiner of dangerous dog declarations,
"which appeal shall be in accordance with the provisions herein and pursuant to the
procedures of city code." In "accordance with the provisions herein" refers to the City
adopted dangerous dog definition. Unsurprisingly, no part of the ACC authorizes the
hearing examiner to circumvent the dangerous dog definition adopted by the Auburn City
Council with the less restrictive RCW 16.08.070(2). In his post -hearing briefing the
Appellant argues that several ACC provisions authorize Examiner application of the
RCW, but none expressly or impliedly authorize such application. The Appellant cites to
ACC 2.46.030, which authorizes the examiner to "interpret, review and implement ...
other ordinances, issues and matters as assigned, delegated and/or referred to the
examiner." No provision of the ACC assigns, delegates or refers application of RCW
16.08.070 to the examiner, so ACC 2.46.030 doesn't provide the express or implied
authority necessary to apply the RCW. Similarly, ACC 2.46.035 authorizes the examiner
to conduct hearings and make decisions "as provided by ordinance," but no ordinance
authorizes the examiner to apply the RCW. Finally, ACC 6.35.020(A) arguably
Dangerous Dog Appeal p. 18 Findings, Conclusions and Decision
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recognizes that the "animal control authority" is vested with some unspecified powers
under state law, but the examiner is not the "animal control authority."
Substantive:
5. ACC 6.01.010(13) defines a "dangerous dog". The provision is quoted in italics
below and applied through corresponding conclusions of law.
ACC 6.01.010(13): "Dangerous dog" means any dog that has been declared to be a
dangerous dog pursuant to the provisions of this chapter, or has been declared to be a
dangerous dog pursuant to applicable code provisions by any other jurisdiction, by
reason of the fact that the dog:
a. Killed or inflicted severe injury on a human being without provocation on public or
private property;
b. Killed or inflicted severe injury on a domestic animal without provocation while the
dog was off the owner's property;
c. Has been previously found to be potentially dangerous because of injury inflicted on
a human, the owner having received notice of such, and the dog again aggressively
bites, attacks, or endangers the safety of humans;
d. Is a potentially dangerous dog, as defined in this chapter, that has been permitted or
allowed to run free and unrestrained off the property of its owner;
e. Is a potentially dangerous dog, as defined in this chapter, that has harassed,
tormented or caused concern for the safety of persons or domestic animals; or
f. Has, since May 7, 2004, demonstrated a propensity, tendency, or disposition to attack
unprovoked, to cause injury, or otherwise to threaten the safety of humans or domestic
animals.
6. Astro and Xena qualify as dangerous dogs under ACC 6.01.010(13)(b). Astro and
Xena qualify as dangerous dogs because they caused severe injury to Charlotte without
provocation in the City of Auburn on November 29, 2017 while off the Johnson's
property as identified in Findings of Fact No. 3-6. Evidence of the fact that Xena and
Astro were able to complete obedience training subsequent to the attacks is largely
irrelevant, as their amenability to training does little to detract from the findings that
both dogs viciously attacked Charlotte without provocation.
DECISION
The appeal is denied. The dangerous dog declarations issued pursuant to Case No. 17-
15638 are affirmed.
Dated this 21 st day of May 2018.
Dangerous Dog Appeal P. 19 Findings, Conclusions and Decision
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Phi A.Olbrechts
City of Auburn Hearing Examiner
Dangerous Dog Appeal p. 20 Findings, Conclusions and Decision
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ROBERT JOHNSON,
Appellant,
CITY OF AUBURN
Respondent.
HE 4.18.18
Exhibit 10
Submitted by: Appellant's
Representative Joseph Marshall
BEFORE THE HEARING EXAMINER
CITY OF AUBURN
CASE NO.: 17-15638
APPELLANTS' PRE -HEARING BRIEF
AND STATEMENT OF EVIDENCE
Robert and Kathleen Johnson, by and through undersigned counsel, hereby submit this
Pre -Hearing Brief and Statement of Evidence, without limitation, for the Hearing Examiner's
consideration. The Johnsons reserve the right to introduce additional evidence and witnesses as
may be adduced at the hearing, and to bring additional argument.
I. INTRODUCTION
This case is about a deficient fence, not dangerous dogs. The Johnson's fence and
property are situated next to a public sidewalk. Due to previous damage to the fence resulting
from car crashes, Johnson pets Astro and Xena managed to escape, and an altercation with Ms.
Kamilla Brown's dog ensued. The altercation did not result from the dogs' character. They
found themselves in an anomalous and unfortunate situation — outside their territory. Moreover,
evidence of scratches on the side of the fence facing the sidewalk, and the universally -known
natural marking behavior of dogs, indicate that Ms. Brown's dog provoked Xena and Astro, and
Pre -Hearing Brief and Statement of Evidence - 1 -
Law Offices of Joseph H. Marshall, PLLC
6210 NE 198'" Street Kenmore, WA 98028
206-793-2227
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also indicate trespass on the Johnson property. The City has also failed to provide the Johnson's
required notice. For these reasons the City's position that Astro and Xena meet the definition of
"dangerous dogs" must be reversed.
II. FACTS
The Johnsons expect to establish the following facts at hearing, subject to their testimony
and other witness testimony, and hereby submit the attached exhibits for admission.
The Johnsons brought home Xena in 2014, and Astro in the fall of 2017. Both dogs are
' licensed, properly registered in the City of Auburn, and have had no prior incidents of the present
nature. The Johnsons secured their yard with a wooden fence since moving to 29589 63rd Ct. S.
Auburn in July 2015. The home lies near a curve. Unfortunately, cars have hit the fence twice,
weakening and damaging it — in September 2016 and October of 2017. Mr. Johnson completed
some repairs including replacing a cracked board in the summer of 2017. This was the section
that the dogs escaped through. The fence is located on the Johsnon property according to a recent
survey. Exhibit 1. A small portion of the Johnson property extends beyond the fence, next to a
public right of way and sidewalk, as shown by the survey stakes. Exhibit 2. A strip ("planting
strip") of land, landscaped with bark, lies between the sidewalk and the fence.
On November 29, 2017 Ms. Kamilla Brown was walking her dog Charlotte along 63rd
Court SE. Investigation subsequent to this incident revealed scratches on the fence, consistent
with those a dog would make, facing the sidewalk. Exhibit 3. This tends to show that Ms.
Brown and/or Charlotte left the public sidewalk, stepped onto the Johnson property, and that
Charlotte attacked the fence, scratching it and provoking Astro and Xena.
Pre -Hearing Brief and Statement of Evidence - 2 -
Law Offices of Joseph H. Marshall, PLLC
6210 NE 198" Street Kenmore, WA 98028
206-793-2227
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A King County Animal Control officer — not a City of Auburn officer -- who happened to
appear at the scene, reported that after secureing the situation, Astro and Xena were not
aggressive at that point. Auburn's Assistant Police Chief later acknowledged the error of
referring to the Animal Control Officer as an Auburn Officer. Astro and Xena have since
completed American Kennel Club -certified Good Citizen programs. Ex. 4
III. ISSUES AND ARGUMENT
A. The City Failed to Provide the Johnsons Proper Notice
The City did not provide notice in the manner described in the ACC 6.35.020 (A) of the
City's intent to declare the dogs dangerous. As a result, the Johnsons incurred expense and
duress, had to overnight their hearing request to the Chief of Police. Belated notice was sent
only after Mr. Johnson raised the issue via electronic mail. Moreover, the City failed to comply
with ACC 6.35.020(C)'s ten-day deadline — the Johnsons received notice on the thirteenth day
after the notice period started.
B. The Evidence Does Not Support the Definition of "Dangerous Dog"
1. Auburn's Code Conflicts With the Statute and Ms. Johnson's Dog
Provoked Astro and Xena
Under ACC 6.01.10(13) "Dangerous dog" means any dog that has been declared to be a
dangerous dog pursuant to the provisions of this chapter... by reason of the fact that the dog:
a. Killed or inflicted severe injury on a human being without provocation on
public or private property;
b. Killed or inflicted severe injury on a domestic animal without provocation
while the dog was off the owner's property;
However, Auburn City Code conflicts with state law. RCW 16.08.070(2)(b) requires the death
of an animal to meet the definition -- and does not allow for or mention mere injury to an animal,
as does Auburn's code above. Thus, under the statute, any severe injury must be inflicted on the
Pre -Hearing Brief and Statement of Evidence - 3 -
Lai• Offices of Joseph H. Marshall, PLLC
6210 NE 1981' Street Kenmore, WA 98028
206-793-2227
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human. The more restrictive definition of the state statute should control over city code as to that
element, and also as to the element of "severe injury" — "physical injury that results in broken
bones or disfiguring lacerations requiring multiple sutures or cosmetic surgery. RCW
16.08.070(3). No person or animal perished in this incident, there were no broken bones or
disfiguring lacerations to Ms. Brown, and the Johnson do not concede severity of injury. The
element of provocation, moreover, will be shown by the evidence of scratches on the street side
of the fence, indicating the dog Charlotte provoked the Johnson dogs. Provocation thus defeats
the dangerous dog finding.
2. Ms. Brown Committed Trespass, An Element That Defeats The
"Dangerous Dog" Designation
The street -side scratches to the Johnson's fence also indicate that Ms. Brown committed a
trespass by stepping onto or allowing Charlotte to enter the Johnson property and also damage
their fence. ACC 6.01.10(13) further provides:
that a dog shall not be declared dangerous if the basis for such declaration was a threat,
injury, or damage that was sustained by a person who, at the time, was committing a
willful trespass or other tort upon the premises occupied by the owner of the dog...
A trespass to a chattel may be committed by intentionally (a) dispossessing another of the
chattel, or (b) using or intermeddling with a chattel in the possession of another. Restatement
(Second) of Torts § 217 (Am. Law Inst. 1965); see also 16 Washington Practice: Tort Law and
Practice § 14:15, at 585 (4th ed. 2013); Repin v. SIaie, 198 Wn.App. 243, 268-69, 392 P.3d 1 174
(recognizing trespass to chattels cause of action), review denied, 188 Wn.2d 1023 (2017).
A trespass involves "an intentional or negligent intrusion onto or into the property of
another, or'an unprivileged remaining on land in another's possession."' Fruclkin v. Noi-ihshoi-e
Pre -Hearing Brief and Statement of Evidence - 4 -
Law Offices of Joseph H. Marshall, PLLC
6210 ONE 1980' Street Kenmore, WA 98028
206-793-2227
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(IN. D&I., 96 Wn.App. 118, 123, 977 P.2d 1265 (1999) (quoting Brad/e),r. Am. Smelting & Rer
Co., 104 Wn.2d 677, 693, 709 P.2d 782 (1985)). To show an intentional trespass, the plaintiff
I must establish (1) an intentional invasion of property affecting an interest in exclusive
possession, (2) reasonable foreseeability that the act would disturb the plaintiffs possessory
interest, and (3) actual and substantial damages. Wallace v. Leiva County, 134 Wn.App. I, 15,
137 P.3d 101 (2006).
As the survey and photos show, the Johnson property extends beyond the fence toward
the sidewalk. Ms. Brown's dog more likely than not veered off the sidewalk onto the Johnson
property to sniff or mark territory, on the ground or fence, given the long -recognized behavior of
dogs on walks. This is an intentional act, done with the purpose of allowing Charlotte to move
where she wished, permitted by Ms. Brown, purposefully. Alternatively, the act is at least
negligent because a reasonably prudent person would take care not to enter onto the property of
another —or allow another's fence to be damaged. Trespass to the Johnson property or fence
defeats the dangerous dog designation under the Auburn Code's plain language.
3. Astro and Xena Have Completed the Good Citizen Program
Auburn City Code also provides in part:
It is further provided that a dog shall not be declared dangerous if the owner of the dog
can show that since the incident or action giving rise to the declaration, the owner has
enrolled in and completed the American Kennel Club's Canine Good Citizen (CGC)
Program, or a comparable course or program addressing dog ownership responsibilities
offered by a similarly recognized entity...
Michelle Freeman of Petco, in Kent, passed Astro and Xena on March 17, 2018, for the Good
Citizen Program.
Pre -Hearing Brief and Statement of Evidence - 5 - Law Offices of Joseph H. Marshall, PLLC
6210 ONE 198" Street Kenmore, WA 98028
206-793-2227
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VU. CONCLUSION
For the above reasons, and further evidence and argument which may be adduced at the
hearing, the "dangerous dog" finding should be reversed.
DATED: April �R
2018
By:
J eph H. Marshall WSBA#29671
Attorney for Appellants Johnson
Pre -Hearing Brief and Statement of Evidence - 6 -
Law Offices of Joseph H. Marshall, PLLC
6210 ONE 198'h Street Kenmore, WA 98028
206-793-2227
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AKC's CANINE GOOD CITIZEN® PROGRAM
* z CGCSM TEST/REGISTRATION FORM
"LNO EY !'• w - - �
petco.E
FOR EVALUATOR USE ONLY FOR OFFICE USE ONLY
Pass (all 10 items passed) //❑ Did not pass
Evaluator Number (required) _1
Evaluator Name (print) I
Evaluator Signatur
Witness Signature
(Witness may not be a member o dog owner or valuator household.)
Test Location:
Petco Store Number: ' Date of Test/ l 18
City Pam:' State ':;L—
Does your dog have an AKC®, PAL or AKC Canine Partners number? ❑ Yes 70�)40
If "yes," list number here:
Pet Parent's Name: .a
As you want It to appear on certificate. First Middle Initial Last —r—r—t
Parent/Guardian Name: I FLI I 1 17771 ❑ F� I I I I 1717-1�^�,L�I
If handler is under 18 years of age. �,—� First Middle Initial Last
Street Address: 174I-5I 91-11 I f d Z1-1T-1��-1—I��1—ITT-1�1-1
City: 1 s State: � Zip: UP - n��
Phone: Z��-I51"11 [I-I'il lj Email:I�IuI5�-tjgs 0-16 -W18DIt1MIA f�p1C�-�
Dog's Name:
As you want it to appear on certificate. AKC records will be used for registered and list d dogs. /
Dog's Age: Dog's Breed:
(List breed it purebred or indicate mixed breed.)
Owner Signature ' v �� Date of Test _-"3--J14 l 2,0113
Parent/Guardian Signature Date of Test_./ /
If handler is under 18 years of age.
Directions 1) OWNER: Keep TOP and BOTTOM copies (-original and two-sided copy). This form must be submitted to AKC within one
(1) year of the test. Enclose a check or money order payable to AKC or complete the credit card information below:
❑ $20 CGC certificate and title designation.* (CGC is listed on the doe's title record.) AKC NUMBER REQUIRED.
You must have an AKC number of 1 of 3 types (AKC registration number, PAL number, or AKC Canine f ariners number)
It. to get the official CGC title. We attach titles to a dog's number. All dogs, including purebreds and mixed breeds, can get a
number to earn the official CGC and other titles including obedience, rally, agility and AKC Therapy Dog.
'Visit www.akc.org/cgcAitle.cfm for information on registering/listing a dog.
$10 CGC certificate only.
EVALUATOR: Keep yellow copy for one (1) year. Send the one (1) page TEST SUMMARY FORM to AKC. Online Test
Summary Form located at http://www.akc.org/events/cgc/evaluator—test-summaryjorm.cfm.
NAME OF CARDHOLDER CREDIT CARD S EXPIRATION DATE
Mail this form to: AKC, Canine Good Citizen Department, P.O. Box 900064, Raleigh, NC, 27675-9064
For questions call (919) 816-3637. Email: cgc@akc.org www.akc.org
GK9CP1 (7/15)
t rUWNER (SEND THIS WAGE TO AKC TO REQUEST CERTIFICAF 1
C -6- T
,m
AKC's CANINE GOOD CITIZEN" PROGRAM
CGCsm TEST/REGISTRATION FORM
FOR EVALUATOR USE ONLY
'V Pass (all 10 items passed) ❑ Did not pass
Evaluator Number (required)
r.T--
Evaluator Name (print)
Evaluator Signature _
Witness Signature
(Witness may not be a me.. r of do owner or Evaluator household)
Test Location: /
Petco Store Number:
City
petco.E
FOR OFFICE USE ONLY
Date of Test S, 1 I C
_Zip
Does your dog have an AKC®, PAL or AKC Canine Partners number? U Yes o
If "yes," list number here:
Pet Parent's Name: It�l0 131EFTIT-1 I —1-1 ® 110114)15210110 1 1 1 1 1 1 1 1 1
As you want it to appear on certificate. First Middle Initial Last
Parent/Guardian Name: FELTL ETT��77_7_17 ❑ —FT-17 1
if handler is under 18 years of �age. Flrst �Middle Initial Last
Street Street Address: rZITSDI I
I I I J_
City:. �_�. rr��rr�q❑�����❑ State: VM Zip: jLjj9j0jM - ❑��
Phone: 2TD'Ef II f�( fj Email:
Dog's Name �1����� ���❑___❑����-���
As you want it to appear on certificate. AKC records will be used for registered and listed dogs.
%
Dog's Age: Dog's Breed: A- M ��t'Gl —
n (List breed If purebred or indicate mixed breed.)
Owner Signature
Date of Test I _/ 2 0 f
ParenUGuardian Signature Date of Test—/
It handler Is under 1a years of age.
Directions: 1) OWNER: Keep TOP and BOTTOM copies (original and two-sided copy). This form must be submitted to AKC within one
(1) year of the test. Enclose a check or money order payable to AKC or complete the credit card information below:
U $20 CGC certificate and title designation." (CGC is listed on the dog's title record.) AKC NUMBER REQUIRED.
You must have an AKC number of 1 of 3 types (AKC registration number, PAL number, or AKC Canine Partners number)
to get the official CGC title. We attach titles to a dog's number. All dogs, including purebreds and mixed breeds, can get a
number to earn the official CGC and other titles including obedience, rally, agility and AKC Therappy Dog.
"Visit www.alrc.org/cgc/titto.cfm for information on registering/listing a dog.
[,,�$10 CGC certificate only.
Z) EVALUATOR: Keep yellow copy for one (1) year. Send the one (1) page TEST SUMMARY FORM to AKC. Online Test
Summary Form located at http://www.akc.org/events/cgc/evaluator_test_summary_form.cfm.
NAME OF CARDHOLDER
CREDIT CARD k
EXPIRATION DATE
Mail this form to: AKC, Canine Good Citizen Depa;,ment, P.O. Box 900064, Raleigh, NC, 27675-9064
For questions call (919) 816-3637. Email: cgc@akc.org www.akc.org
GK9CP1 (7115) OWNL:R (SEND THIS PAGE TO AKC TO REQUf ST GLER T IF ICAf E)
r �1<,
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HE 4.18.18
Exhibit 11
Submitted by: City of Auburn
BEFORE THE HEARING EXAMINER
IN AND FOR THE CITY OF AUBURN, WASHINGTON
ROBERT JOHNSON, NO. 17-15638
Appellant. CITY OF AUBURN RESPONSE TO
APPELLANT'S PRE -HEARING
BRIEF AND STATEMENT OF
EVIDENCE
FACTS
At the hearing, the City will present evidence that on November 29th, 2017, Ms.
Brown was walking her dog, "Charlotte," on the sidewalk that is adjacent to South
296th Street in Auburn. As she passed the Johnsons' residence she heard growling,
but did not see other dogs. While she and Charlotte were on the sidewalk, the two
Johnsons' dogs came out of the fence and immediately attacked Charlotte. In her
effort to escape the attack, Charlotte retreated to the street and because she was
leashed she pulled Ms. Brown with her. As the pitbulls pulled on Charlotte, Ms. Brown
and the three dogs moved across the street and to the opposite shoulder. At some
point, Ms. Brown lost her balance and fell to the pavement on her side. By kicking at
the two attacking dogs, she attempted unsuccessfully to cause the dogs to let go of
Charlotte. In this effort, she was bitten on her shin and big toe of one foot.
RESPONSE TO APPELLANT'S PRE -HEARING BRIEF
Page 1 of 15
CITY OF AUBURN
Legal Department
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
W
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While the attack was proceeding, Mrs. Johnson rushed from her house to the
street to help Ms. Brown. Shortly after she reached the far side of S 2961h Street, a
King County Animal Control officer driving her official vehicle came upon the attack.
She joined the fray with a catch pole and took control of first one and then the other
attacking dog. While she was leading the first dog to her truck, it was constantly
lunging to return to attack Ms. Brown's dog. The officer had to hold him down inside
the vehicle until a passerby could take the pole from her. Throughout the incident this
dog remained hyperactive.
After the Johnsons' dogs were contained, the King County animal control officer
transported Ms. Brown home and then later met her at a veterinary in Kent. A
veterinarian treated Charlotte for multiple injuries. On the same day, Ms. Brown
traveled to Urgent Care and then to the Franciscan Health emergency department for
treatment of her injuries.
II. ARGUMENT
A. The City Provided Proper Notice to the Johnsons
It is a little unclear to the City of Auburn in what manner the Johnsons feel the
City violated ACC 6.35.020(A). The hearing packet contains the certified mail receipt
showing that the Johnsons received a written notice of the dangerous dog
designations and listing their rights. Exhibit 4, pp 53-54. The date of receipt is
December 20, 2017. Exhibit 3 shows that the Auburn Police Department (APD)
hearing occurred on the same day. Thus, the City clearly met the requirement in ACC
RESPONSE TO APPELLANT'S PRE -HEARING BRIEF
Page 2 of 15
CITY OF AUBURN
Legal Department
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
1 6.35.020(C) that the meeting "must occur prior to expiration of 10 calendar days
2 following delivery of the notice."
3 The delivery of the notice and the hearing presumably occurred on the same
d day because the City had previously given the Johnsons actual notice of the
5
designation and their right to request review by the department. The investigating
6
officer's report states that on December 5, 2017, she "advised Johnson I would be
7
s
declaring both dogs dangerous and she understood." Exhibit 4, p 11. Furthermore,
9 she sent the dangerous dog notices to Mrs. Johnson's email address, as requested by
10 Mrs. Johnson. Exhibits A & B, attached hereto. A reply to this message by Mr.
11 Johnson on December 11, 2017, shows it was received by the Johnsons. Exhibit C,
12 attached. After some confusion between the Johnsons and the officer about whether
13 and how a hearing with the department would be scheduled, the officer both sent the
14 Johnsons a notice by mail and arranged for the Chief of Police's secretary to call the
15
Johnsons to set a meeting date. Exhibit D. Thus, the Johnsons were given adequate
16
notice and any defect in the manner of delivery was waived by Mrs. Johnson's request
17
is for notice by e-mail.
19 Whether there was an issue with the City's noticing the Johnsons of the APD
20 hearing, the issue is now moot. If an issue existed, the Johnson's relief was to ask for
21 a continuance of the APD hearing. They did not do so and participated in the hearing
22 on December 20, 2017. They have not claimed that they did not receive an adequate
23 hearing on that day, or that any further appellate rights are somehow prejudiced by the
24 form or timing of the notice they received. No prejudice exists. Since the Hearing j
25
Examiner's review is de novo, any such defect in notice of the APD hearing is
26
RESPONSE TO APPELLANT'S PRE -HEARING BRIEF CITY OF AUBURN
27 Page 3 of 15 Legal Department
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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inconsequential at this point. The APD's conclusions do not guide the appellate
hearing, so any defect in them, whether due to lack of timely notice or otherwise, does
not taint the current proceeding. Consequently, any defect does not form the basis for
overturning the department's dangerous dog determinations.
j B. Auburn City Code 6.01 is not Preempted by State Code
The Johnsons argue "conflict" preemption of the city code. Under this strand of
preemption law, an ordinance violates the constitution "if it directly and irreconcilably
conflicts with a state statute." Rabon v. City of Seattle, 135 Wn.2d 278, 292 (1998).
Under all aspects of preemption law, "an ordinance is presumed constitutional and a
heavy burden rests upon the challenger to establish unconstitutionality." Rabon, 135
Wn.2d at 278 (1998),
In Rabon, a dog owner argued that state law preempted the Seattle dangerous
dog ordinance since the two conflict. The owner noted that the Seattle ordinance
prohibits the possession of dangerous dogs and state law does not. The Supreme
Court rejected this argument finding that the two codes were reconcilable. It observed
that a conflict is absent when a local ordinance merely prohibits a wider scope of
activity than the state law allows. "A local ordinance may require more than state law
requires where the laws are prohibitive." Rabon, 135 Wn.2d at 292.
Similarly, in Seattle Newspaper -Web Pressmen's Union Local No. 26 v. City of
Seattle, 24 Wn. App. 462 (1979), a court found no conflict between an ordinance that
extended its prohibition on unfair labor practices to practices not covered under state
statute. The court observed that there is no preemption when an ordinance is "more
RESPONSE TO APPELLANT'S PRE -HEARING BRIEF CITY OF AUBURN
Page 4 of 15 Legal Department
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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restrictive than the state enactment so long as the statute does not forbid the more
restrictive enactment." Id. at 469.
Here, Auburn includes a larger category of dogs within its dangerous dog
definition then does state law. As the Johnsons point out, the Auburn code includes
dogs that inflict severe injury upon other dogs unprovoked. This additional category of
dangerousness does not conflict with the state statute since that statute does not
prohibit such a classification. The City's code is merely more restrictive of dog
behavior than state code. It merely goes further in its prohibition, or designation, than
state law. This is permitted. Rabon, 135 Wn.2d at 293; State v. Rabon, 45 Wn. App.
832 (1986) (state law banning chako sticks under certain circumstances does not
preclude city from banning them entirely). "In exercise of its police power a
municipality may wish to provide further protection from dangerous or vicious
animals." Id.
Regardless of whether state law preempts ACC 6.01.010(13)(b), the City's
code still provides several independent basis for upholding the APD's designation.
ACC 6.01.010(13) also includes within the "dangerous dog" definition canines that
have "killed or inflicted severe injury on a human being without provocation on public
or private property." This provisions is unquestionably free from preemption as RCW
16.08.070(2) describes the same category of behavior. As the City will demonstrate at
the hearing, the Johnsons' two dogs meet this subsection of city code and are, thus,
dangerous dogs.
RESPONSE TO APPELLANT'S PRE -HEARING BRIEF
Page 5 of 15
CITY OF AUBURN
Legal Department
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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C. Ms. Brown's Actions do not Defeat the Dangerous Dog Definition
The Johnsons' evidence of Ms. Brown's trespass is indeterminate at best, and
in reality purely speculative. The City believes that at the hearing the evidence will
show that Ms. Brown did not enter the Johnsons' property at any time. Regardless,
even when the evidence is construed in the light favorable to the Johnsons, the law
establishes that any straying of Ms. Brown upon the section of the Johnson's property
between their fence and the sidewalk, the "planting strip" does not disqualify the
Johnsons' dogs as dangerous.
First, any entry by Ms. Brown on the 2-3 foot strip of dirt and landscape bark
that sits between the sidewalk and the Johnsons' fence is not a trespass. Ms. Brown
was given implied consent to enter this portion of the Johnsons' property, and was a
licensee, not a trespasser, if she ever entered the planting strip.
As far back as 1922, U.S. courts have recognized that passersby have implied
consent to travel on some portions of private property. In Florida v. Jardines, 569 US
1, 133 S.Ct. 1409 (2013), a search and seizure case, the Supreme Court quoted
Justice Holmes regarding this concept:
"'A license may be implied from the habits of the country,' notwithstanding
the 'strict rule of the English common law as to entry upon a close."'
McKee v. Gratz, 260 US 127, 136, 43 S.Ct. 16 (1922).
Jardines, 133 S,Ct. at 14151
After raising the concept of .implied consent, the Jardine court ruled that such a concept did not
excuse from Fourth Amendment restrictions the entry of a drug -detection police canine on to a porch.
However, the court made this holding on the basis of privacy protections, and the abilities of the dog to
smell items within the house and alert its handlers of their presence. These concerns are not relevant
in the dangerous dog context.
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This same concept of implied consent has been adopted by Washington courts
as well. In Singleton v. Jackson, 85 Wn. App 835 (1997), Division 2 analyzed whether
a Jehovah's Witness member who was visiting a property was a trespasser or
licensee for purposes of a tort action. In its analysis, the court observed that "the
possessor of property may consent to a licensee's entry through conduct, omission, or
by means of local custom, as well as through oral or written consent." The court then
went on to list some examples of such licensed entry:
Given the numerous means by which a possessor may expressly or tacitly
consent to entry, the factual situations in which persons have been found
to be licensees is extensive and includes: [T]hose taking short cuts
across the property or making merely permissive use of crossings and
ways or other parts of the premises; loafers, loiterers, and people who
come in only to get out of the weather; those in search of their children,
servants or other third persons; spectators and sightseers not in any way
invited to come...
Singleton at 840 quottingW. Page Keeton et al., PROSSER AND KEETON ON THE
LAW OF TORTS § 60, at 413 (5th ed.1984).
The Singleton court also adopted the analysis of the Restatement of Torts to
determine whether the religious member was a licensee. The Restatement explains
that
The consent which is necessary to confer a license to enter land, may be
expressed by acts other than words. Here again the decisive factor is the
interpretation which a reasonable [person] would put upon the possessor's
acts.
Singleton, 85 Wn.App. at 840. The Restatement comment goes on to expand on how
local custom may play into this interpretation;
[A]ccount must be taken of customs prevailing in the community. 'The
well -established usages of a civilized and Christian community' entitle
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everyone to assume that a possessor of land is willing to permit him to
enter for certain purposes until a particular possessor expresses
unwillingness to admit him.
RESTATEMENT (SECOND) OF TORTS § 330 (1965). Based upon the
Restatement's analysis, the court found that it was reasonable for the Jehovah
Witness missionary "to believe that she had permission to approach the front door of
the house..." Singleton, 85 Wn.App. at 842.
Many other courts have made similar rulings in the context of Fourth
Amendment cases. The Singleton court observed that "Washington courts reviewing
criminal search and seizure issues have recognized that the public has implied
consent to approach a private residence along established access routes." Singleton,
85 Wn. App. at 842 fn 2.
For instance, In State v. Seagull, 95 Wn.2d 898 (1981), the state supreme
court held that an officer did not unreasonably depart from an area of curtilage
impliedly open to the public when he walked through the side yard to the north door
after he did not receive answer at the south door. In proceeding to the south, he took
a route that was a normal access route. Seagull 95 Wn.2d at 905. But along the way,
the officer deviated from the most direct route along the side of the house. In doing
so, he observed what he believed to be growing marijuana. Seagull, at 900. The court
held that the search was legal since "an officer is permitted the same license to intrude
as a reasonably respectful citizen" and the officer's deviation did not unreasonably
remove him from an area impliedly open to the public. Seagull, 95 Wn.2d at 902,905.
The state's dangerous dog statute also supports consideration of implied
consent when evaluating liability for a dog's behavior. RCW 16.08.050 recognizes that
RESPONSE TO APPELLANT'S PRE -HEARING BRIEF CITY OF AUBURN
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a dog owner is liable for the bite of its dog whenever a person has implied consent to
be on the owner's property, unless the person is within a fenced or posted area:
A person is lawfully upon the private property of such owner within the
meaning of RCW 16.08.040 when such person is upon the property of the
owner with the express or implied consent of the owner: PROVIDED, That
said consent shall not be presumed when the property of the owner is
fenced or reasonably posted.
RCW 16.08.050.
While the City has been unable to find a case that directly concerns the portion
of property between a fence and a sidewalk, the holdings in these cases should apply
to the Johnsons' argument. The dirt strip adjoining the sidewalk was beyond the fence
line, which normally acts to define the functional boundary of a person's property, if
not the legal one. This land is undeveloped and un-landscaped other than being
partly covered in bark. Ostensibly, the Johnsons have no view of it from their house
and yard, and have no access to it beyond the access that all the public has. This is
land that by custom is impliedly open. Such similar curtilage is often traveled upon by
children while walking along the sidewalk, by adults making room for others to pass on
the sidewalk, or when retrieving items such as a rock, an insect, or a ball that has run
astray.
As a society, we do not think of intrusions upon these strips of land, which are
prevalent in any suburban neighborhood, as trespasses. Indeed, most individuals
don't even think twice about such invasions. They certainly do not expect to be sued
for trespass once they have taken a single step from a sidewalk, as if the planting
strips were legal lava flows that "burns" the passerby whenever she slightly strays
from the public path. As much as a pathway or doorbell impliedly invites the public to
RESPONSE TO APPELLANT'S PRE -HEARING BRIEF CITY OF AUBURN
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1 our front doors, the undeveloped, un-landscaped portion of land between fence and a
2 sidewalk invites casual travel, at least until actions by the owners notifies the public of
3 their desire that the public stay away.
4 It is not only common experience that leads us to the conclusion that current
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custom allows passersby to casually travel upon parkways and planting strips, the law
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indicates the same. To the extent that legislative adoptions reflect society's customs,
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society has adopted the concept that persons may stray onto private undeveloped
9 land without a trespass occurring. In the state statute that establishes the crime of
10 trespass, the state code defines "enters or remains unlawfully" for purposes of criminal
i 1 trespass. RCW 9A.52.010. The definition excludes from its scope such casual travel
12 upon unfenced and undeveloped land:
13 A person who enters or remains upon unimproved and apparently unused
14 land, which is neither fenced nor otherwise enclosed in a manner
designed to exclude intruders, does so with license and privilege unless
15 notice against trespass is personally communicated to him or her by the
owner of the land or some other authorized person, or unless notice is
�6 given by posting in a conspicuous manner.
17 Nor is it reasonable to conclude that the City, when it enacted ACC 6.01.010, to
18 have intended that the vicious behavior of dogs be excused whenever a victim
19 happens to be standing on a parkway or a planting strip rather than on the concrete of
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a sidewalk. The purpose of the dangerous dog provisions is to protect the public
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against vicious dogs. Both state law and Auburn code recognizes that in some
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instances viciousness is justified. The scenario that the Johnsons hypothezied
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24 happened here is clearly not one of those instances. Consequently, any vaguraity that
25 the word "trespass" inserts into the meaning of ACC 6.01.010 should warrant a
26
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narrow reading of the term that is consistent with the obvious intent of the Auburn City
Council when adopting the provision. Burton v. Lehman, 153 Wn.2d 416 (2005) ("If a
statute is subject to more than one reasonable interpretation, the court should
construe the statute to effectuate the legislature's intent."). Such a broad reading as
suggested by the Johnsons is contrary to this intent. In contrast, a reading that is
consistent with the concept of implied consent entry supports the legislative purpose.
Thus, if on the day the dogs attacked Ms. Brown she stayed onto the planting
strip adjacent to the 296th Street sidewalk she did so not as a trespasser but as a
licensee. Society recognizes that she had implied consent to enter this portion of the
Johnsons' property. The city code should be read to recognize this concept, as both
tort and criminal law has done.
Regardless, Ms. Brown was not "committing a willful trespass" even if the
evidence establishes that she left the 296th Street sidewalk and walked in the
Johnsons' planting strip. Whether Ms. Brown left the sidewalk and committed a
trespass, the Johnsons have not shown that her trespass was "willful" on the day of
the attack.
In their trial brief, the Johnsons ignore this term although it is contained in the
ACC provisions the cite to excused their dogs' attack on Ms. Brown. This is wrong.
First, the rules of statutory construction instruct to give each word meaning. State v.
Fenter, 89 Wn.2d 57, 60, (1977). Second, the term is not superfluous. The term,
when read in the context of the cited provisions, allows the code to distinguish
between trespasses that excuse or explain a dog attack and those that are so minor
that they it would be absurd to look past the dog's dangerousness in response to the
RESPONSE TO APPELLANT'S PRE -HEARING BRIEF CITY OF AUBURN
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trespass. This term addresses the precise scenario hypothesized by the Johnsons
when claiming that Ms. Brown was trespassing at the time their dogs attacked her.
The term "willful" limits the scope of the code so that dogs which react
disproportionately to a brief and inadvertent trespass are not free to expose the public
to further danger.
The city code does not define "willful trespass." However, the law does.
Washington cases containing the term "willful trespass" almost exclusively deal with
timber or mineral statutes. In those cases, a finding of "willful trespass" will result in
treble damages as opposed to just compensable damages in the case of casual or
involuntary trespass. Birchler v. Castello Land Co. Inc., 133 Wn.2d 106 (1997) ("The
treble damage remedy is available when the trespass is "willful," because if the
trespass is 'casual or involuntary' or based on a mistaken belief of ownership of the
land, treble damages are not available.").
It is safe to assume that the city council was aware of the law when it drafted its
code, that it purposefully used "willful trespass" for the meaning contained in law, and
adopted the phrase to exclude "casual and involuntary" trespasses from the trespass
defense contained in ACC 6.01.010. Woodson v. State, 95 Wn.2d 257, 262, 623 P.2d
683, 685 (1980) ("...the legislature is presumed to know the existing state of the case
law in those areas in which it is legislating."). Again, the use of this phrase is rational
and furthers the purpose of the code. Persons walking dogs are often pulled onto
other's properties by their dogs, or enter casually to retrieve their dogs' waste.
Sanctioning the dangerous behavior of a dog in response to such trivial trespasses
would eviscerate the purpose of the code. The same is true for persons not walking a
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dog but who inadvertently stray on a person's yard, for instance, to retrieve a ball or
because the boundary between public and private land is unclear. Reading "willful" to
mean non -casual and voluntary insures that the code addresses dog attacks against
victims committing these trivial trespasses while at the same time excusing dogs who
defend their property against more substantive invasions.
The Johnsons provide no evidence of Ms. Brown's trespass. But it is clear that
their theory of her trespass would not constitute either a trespass or a "willful
trespass." If her dog left the sidewalk to sniff the fence, to scratch at it, or to relieve
itself, and she followed, such an entry upon the Johnsons' land was certainly licensed,
casual, and inconsequential. 2
D. Completion of a Good Citizen Program does not Shield the Johnsons'
Dogs from a Declaration of Dangerousness.
While it is commendable that the Johnsons promptly enrolled their dogs in a
AKC Canine Good Citizen program, the dogs still qualify as dangerous dogs under city
code. The "Good Citizen" exclusion does not apply when a dog is classified as
dangerous under the code for inflicting severe injury on a human being or domestic
animal without provocation. The Johnson's dogs did both. The veterinarian records
contained in Exhibit 4 and the photos contained in Exhibits 7 and 8 establish that the
2 While the Johnsons appear to be concerned with a trespass by Ms. Brown, it is worth noting that the
city ordinance is only concerned with willful trespass of the dog owner. Trespass by a dog alone does
not disqualify a dog as dangerous under the city code. However far the law of tort goes to allocate the
trespass of animals to their owners, it is clear that the reference in ACC 6.01 to trespass regard's
persons trespassing. The code, when describing when a dangerous dog's behavior is excused,
references injuries "sustained by a person," abuse of a dog, and the commission of crimes. These
provisions make no sense in reference to the victim dog. Only actions by a human victim disqualify a
dog from a dangerous dog designation.
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injuries to Ms. Brown's dog were severe. Exhibit 4, pp 17-29; Exhibit 7, pp 77-78;
Exhibit 8, pp 99-109. And Ms. Brown's medical records establish the severity of her
injuries. Exhibit E. These records show that in addition to the lacerations on her toe,
Ms. Brown suffered a fractured toe in the dog attack.
In their trial brief, the Johnsons briefly argue that scratches on the fence reveal
that their dogs were provoked by Ms. Brown's dog. They, however, provide no
evidence that these scratches were made by a dog, were made by Ms. Brown's dog,
and were made at the time of the attack.
Regardless, a dog scratching on the opposite side of a fence is not provocation
of a dangerous dog attack. If such canine behavior qualifies as provocation, then
many similar such behaviors, like dogs barking at each other, should qualify rendering
ACC 6.01.010(13) largely meaningless. Legislation must be interpreted reasonably to
avoid absurd legislative outcomes. Tingey v. Haisch, 159 Wn.2d 652, 664, (2007) ("A
reading that produces absurd results must be avoided because " 'it will not be
presumed that the legislature intended absurd results."). Reading ACC 6.01.010(13)
as excusing severe injuries to other animals in response to their scratching on a wood
fence is an absurd result. Both the city council and the state legislature must not have
had such behavior in mind when they adopted ACC 6.01.010 and RCW 16.08.070,
respectively. Dogs that inflict severe injury upon other dogs and upon humans simply
because a dog scratched on a fence or a door are a threat to the public as much as
those that attack spontaneously.
RESPONSE TO APPELLANT'S PRE -HEARING BRIEF
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III. CONCLUSION
At the hearing, the city will present facts showing that the Johnsons' dogs
qualify as dangerous dogs. Legally, any acts by Ms. Brown or her dog in
Respectfully submitted this 161h day of April, 2018.
t�4s
Douglas P. Ruth, WSBA 25498
Assistant City Attorney
RESPONSE TO APPELLANT'S PRE -HEARING BRIEF
Page 15 of 15
CITY OF AUBURN
Legal Department
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
Shawn Campbell
From: Jamie Heslin <jheslin@auburnwa.gov>
Sent: Tuesday, December 5, 2017 4:46 PM
To: 'ktorina@yahoo.com'
Subject: Emailing: 17-15638 DD ASTRO.docx, 17-15638 DD XENA.docx
Attachments: 17-15638 DD ASTRO.docx; 17-15638 DD XENA.docx
Here are the dangerous dog packets I spoke with you about. Let me know if you have any other questions or did not
receive these.
Thank you,
J. Heslin I Animal Control
Auburn Police Department
340 East Main Street #201 1 Auburn, WA 98002
253-931-3062 1 253-931-5108 fax
jheslin@auburnwa.gov
Your message is ready to be sent with the following file or link attachments:
17-15638 DD ASTRO.docx
17-15638 DD XENA.docx
Note: To protect against computer viruses, e-mail programs may prevent sending or receiving certain types of file
attachments. Check your e-mail security settings to determine how attachments are handled.
The information contained in this electronic communication is personal, privileged and/or confidential information
intended only for the use of the individual(s) or entity(ies) to which it has been addressed. If you read this
communication and are not the intended recipient, you are hereby notified that any dissemination, distribution or
copying of this communication, other than delivery to the intended recipient is strictly prohibited. If you have received
this communication in error, please immediately notify the sender by reply e-mail. Thank you.
CASE NUMBER: 17-15638
ENCLOSED:
Owner / Keeper of Dog:
OFFICER: Heslin DATE ISSUED: 12/04/2017
AUBURN POLICE DEPARTMENT
ANIMAL CONTROL DIVISION
NOTICE OF INTENT TO DECLARE A DOG AS
X DANGEROUS
PACKET COVER SHEET (PAGE 1)
REASON FOR DECLARATION (PAGE 2)
HEARING NOTIFICATION FORM (PAGE 3)
REQUIREMENTS (PAGE 4)
INSURANCE FORM (Page 5)
Last Name: IOHNSON-First: KATHLEEN MI: T DOB: 06-08-1964
Address: 29589 63rd Ct S City: Auburn -State: WA Zip: 98002.
Home Phone: 206 972 4552 Work Phone:
Description of Dog:
Name: ASTRO_Breed(s): PIT BULL
Color(s): FAWN/WHITE-Markings:
Sex: M/F Altered: YIN Age: 2 Microchip / Tattoo:
License year and number: P018168/2017_ Rabies Vaccination Exp. Date: 2017
Veterinarian Name:SACAIAWEA VET CLINIC Veterinarian Phone:253 216 8160.
Whereabouts of dog if not at owner/keeper's residence:
Page 1 of 5
'Q�
CASE NUMBER: 17-15638 OFFICER: Heslin DATE ISSUED: 12/04/2017
AUBURN POLICE DEPARTMENT
ANIMAL CONTROL DIVISION
TYPE AND BASIS OF DECLARATION & REASONING
Auburn Animal Control is seeking to declare your dog:
❑ Dangerous
At approximately 1130 _ hrs. on the 29TH day of _NOVEMBER, 2017. Animal
Control has witnessed or been provided evidence that your animal broke through the fence and attacked
another dog and its owner in the 29600 block of 63rd Ct S
*********************************************************************************************************
Narrative: SEE NARRATIVE 17-15638
Page 2 of 5
.14Z
CASE NUMBER: 17-15638 OFFICER: Heslin DATE ISSUED: 12/04/2017
AUBURN POLICE DEPARTMENT
ANIMAL CONTROL DIVISION
RIGHTS UPON NOTIFICATION OF PRELIMINARY DECISION
KATHLEEN IOHNSON ASTRO
Owner Dog
29589 63RD CT S. AUBURN, WA 98002
Address
Under ACC 6.35.020(C) you have a right to meet with the Chief of Police or his designee to present any
reasons, orally or in writing, why the animal should not be declared Dangerous or Potentially Dangerous.
The date and time of this meeting is:
Meeting Date: Meeting Time: 9:00 am
Meeting Location: Auburn Police Department 340 E. Main Street, Ste. 201, Auburn, WA 98002
If you are unable to attend this meeting you can request the meeting be rescheduled to a reasonable time
that falls within 10 calendar days of delivery of this notice.
If you fail to appear for this meeting preliminary notice will become final, and your animal(s) will
be declared Dangerous or Potentially Dangerous.
If, after the meeting date, your animal is declared Dangerous or Potentially Dangerous you may appeal that
final declaration using the form provided on the following page. This form must be submitted to the City
Clerk by certified mail or in person within fifteen (15) days of the determination of your animal's status if
the original notification was delivered to you in person, or within twenty (20) days if the original
notification was mailed to you.
REQUEST FOR MEETING ON PRELIMINARY DECLARATION
I request a meeting as provided for in ACC 6.35.020(C) to discuss the preliminary decision to declare my
animal(s) as Dangerous or Potentially Dangerous in Case(s) No. . I
understand that I have the right to present reasons or information in writing or verbally as to why my
animal(s) should not be declared Dangerous or Potentially Dangerous.
Signature
Printed Name/Date
Page 3 of 5
All
CASE NUMBER: 17-15638 OFFICER: Heslin DATE ISSUED: 12/04/2017
DANGEROUS DOG REQUIREMENTS
Within twenty (20) days of receipt of this declaration, you are required to obtain a certificate of
registration and a special license for your Dangerous Dog from the Auburn City Cleric. The license
will be issued upon compliance with the following requirements:
1. Per ACC 6.35.020(f)(1): Placement of a "proper enclosure" on the owner's / keeper's property to
confine the dog.
2. Per ACC 6.35.020(f) (1): Placement of a conspicuously displayed sign on the premises where the
dog is harbored with a warning symbol that informs children or adults who cannot read of the
presence of a dangerous dog.
3. Per ACC 6.35.020(f)(2): A surety bond issued by a surety insurer qualified under chapter 48.28
R.C.W. in a sum of not less than $250,000 payment to a person injured by the dog, or a policy of
liability insurance issued by an insurer qualified under title 48 R.C.W. in an amount not less than
$250,000 insuring the owner or keeper for personal injuries inflicted by the dog. (OR)
4. Per ACC 6.35.020(f) (3): A policy of liability insurance, such as homeowner's insurance, issued by
an insurer qualified under RCW Title 48 in the amount of at least $250,000, insuring the owner
for any personal injuries inflicted by the dangerous dog, or such liability insurance that otherwise
meets the requirements of RCW 16.08.080.
5. Per ACC 6.35.080 (A): If the Dangerous Dog is taken outside the required enclosure, such dog
shall be muzzled and restrained by a substantial leash or chain and under the physical control of
a person sixteen (16) years or older who is capable of restraining such animal.
6. Per ACC 6.35.020 (g): Any dog which is declared to be a "dangerous dog" pursuant to this chapter
or Chapter 16.08 RCW shall also be required to be microchipped by a veterinarian of the owner's
choice, at the owner's expense. This shall be in addition to the other requirements of this chapter
and in addition to the applicable requirements for licensing as defined within this title, and this
procedure must be accomplished within 30 days after the owner's receipt of the dangerous dog
declaration issued pursuant to this chapter or Chapter 16.08 RCW.
7. The special license fee for a Dangerous Dog is $500.00 per year, in addition to the regular license
fee.
Page 4 of 5
CASE NUMBER: 17-15638
Owner/Keeper of dog:
Last Name:
Address:
Home Phone:
Description of dog:
Name:
Color(s): _
Sex: M/F
OFFICER: Heslin DATE ISSUED: 12/04/2017
AUBURN POLICE DEPARTMENT
ANIMAL CONTROL DIVISION
DANGEROUS DOG
INSURANCE REQUIREMENT FORM
First: MI: DOB:
City: State: Zip:
Work Phone:
__Breed(s):
_Markings:
Altered: Y/N Age:
TO INSURANCE/BOND AGENT:
Microchip / Tattoo:
The above described animal has been declared a Dangerous Dog by the Auburn Police
Department Animal Control Division per ACC 6.01 and 6.35, due to:
Per ACC 6.35.020(f)(2)&(3): The owner/keeper of this animal must obtain a surety bond issued by
a surety insurer qualified under chapter 48.28 R.C.W. in a sum not less than $250,000 payable to a person
injured by the dog, and a policy of liability insurance issued by an insurer qualified under title 48 R.C.W. in
an amount not less than $250,000 insuring the owner or keeper for personal injuries inflicted by the dog.
Additionally, written notice must be provided to the City of Auburn Police Department within 30
ays or canceiiation, reauction or limits, or termination or coverage.
Please complete and sign this form, and return with a copy of the policy.to the Auburn Police Department;;
Animal Control Division,340 E. Main Street, Ste. 201, Auburn, WA 98002. (253) 931-3080FAX (253) 931
5108. Thank You.
Insurance/Bond Agent:
Name: Address:
Phone: Company Name:
Date: Insurance/Bond Agent:
Policy Number:
Page 5 of 5
(9
CASE NUMBER: 17-15638 OFFICER: Heslin DATE ISSUED: 12/04/2017
AUBURN POLICE DEPARTMENT
ANIMAL CONTROL DIVISION
NOTICE OF INTENT TO DECLARE A DOG AS
X DANGEROUS
ENCLOSED: PACKET COVER SHEET (PAGE 1)
REASON FOR DECLARATION (PAGE 2)
HEARING NOTIFICATION FORM (PAGE 3)
REQUIREMENTS (PAGE 4)
INSURANCE FORM (Page 5)
Owner / Keeper of Dog:
Last Name: OHI NSON_First: KATHLEEN_MI: T DOB: 06-08-1964
Address: 29589 63rd Ct S City: Auburn State: WA Zip: 98002
Home Phone: 206 972 4552 Work Phone:
Description of Dog:
Name: XENA_Breed(s): PIT BULL
Color(s): RED/BROWN-Markings:
Sex: M/F Altered: Y/N Age: 6 Microchip / Tattoo:
License year and number: P01675612017_ Rabies Vaccination Exp. Date: 2017
Veterinarian Name:SACAIAWEA VET CLINIC Veterinarian Phone:253 216 8160
Whereabouts of dog if not at owner/keeper's residence:
Page 1 of 5
4-3
CASE NUMBER: 17-15638 OFFICER: Heslin DATE ISSUED: 12/04/2017
AUBURN POLICE DEPARTMENT
ANIMAL CONTROL DIVISION
TYPE AND BASIS OF DECLARATION & REASONING
Auburn Animal Control is seeking to declare your dog:
El Dangerous
At approximately 1130 hrs. on the 29TH _ day of_NOVEMBER, 2017. Animal
Control has witnessed or been provided evidence that your animal broke through the fence and attacked
another dog and its owner in the 29600 block of 63rd Ct S
*********************************************************************************************************
NARRATIVE
Page 2 of 5
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CASE NUMBER: 17-15638 OFFICER: Heslin DATE ISSUED: 12/04/2017
AUBURN POLICE DEPARTMENT
ANIMAL CONTROL DIVISION
RIGHTS UPON NOTIFICATION OF PRELIMINARY DECISION
KATHLEENIOHNSON XENA
Owner Dog
29589 63ae CT S. AUBURN, WA 98002_
Address
Under ACC 6.35.020(C) you have a right to meet with the Chief of Police or his designee to present any
reasons, orally or in writing, why the animal should not be declared Dangerous or Potentially Dangerous.
The date and time of this meeting is:
Meeting Date: Meeting Time: 9:00 am
Meeting Location: Auburn Police Department 340 E. Main Street, Ste. 201, Auburn, WA 98002
If you are unable to attend this meeting you can request the meeting be rescheduled to a reasonable time
that falls within 10 calendar days of delivery of this notice.
If you fail to appear for this meeting preliminary notice will become final, and your animal(s) will
be declared Dangerous or Potentially Dangerous.
If, after the meeting date, your animal is declared Dangerous or Potentially Dangerous you may appeal that
final declaration using the form provided on the following page. This form must be submitted to the City
Cleric by certified mail or in person within fifteen (15) days of the determination of your animal's status if
the original notification was delivered to you in person, or within twenty (20) days if the original
notification was mailed to you.
REQUEST FOR MEETING ON PRELIMINARY DECLARATION
I request a meeting as provided for in ACC 6.35.020(C) to discuss the preliminary decision to declare my
animal(s) as Dangerous or Potentially Dangerous in Case(s) No. . I
understand that I have the right to present reasons or information in writing or verbally as to why my
animal(s) should not be declared Dangerous or Potentially Dangerous.
Signature
Printed Name/Date
Page 3 of 5
rI I
CASE NUMBER: 17-15638 OFFICER: Heslin DATE ISSUED: 12/04/2017
DANGEROUS DOG REQUIREMENTS
Within twenty (20) days of receipt of this declaration, you are required to obtain a certificate of
registration and a special license for your Dangerous Dog from the Auburn City Clerk. The license
will be issued upon compliance with the following requirements:
1. Per ACC 6.35.020(0(1): Placement of a "proper enclosure" on the owner's / keeper's property to
confine the dog.
2. Per ACC 6.35.020(f)(1): Placement of a conspicuously displayed sign on the premises where the
dog is harbored with a warning symbol that informs children or adults who cannot read of the
presence of a dangerous dog.
3. Per ACC 6.35.020(f)(2): A surety bond issued by a surety insurer qualified under chapter 48.28
R.C.W. in a sum of not less than $250,000 payment to a person injured by the dog, or a policy of
liability insurance issued by an insurer qualified under title 48 R.C.W. in an amount not less than
$250,000 insuring the owner or keeper for personal injuries inflicted by the dog. (OR)
4. Per ACC 6.35.020(f) (3): A policy of liability insurance, such as homeowner's insurance, issued by
an insurer qualified under RCW Title 48 in the amount of at least $250,000, insuring the owner
for any personal injuries inflicted bythe dangerous dog, or such liability insurance that otherwise
meets the requirements of RCW 16.08.080.
5. Per ACC 6.35.080 (A): If the Dangerous Dog is taken outside the required enclosure, such dog
shall be muzzled and restrained by a substantial leash or chain and under the physical control of
a person sixteen (16) years or older who is capable of restraining such animal.
6. Per ACC 6.35.020 (g): Any dog which is declared to be a "dangerous dog" pursuant to this chapter
or Chapter 16.08 RCW shall also be required to be microchipped by a veterinarian of the owner's
choice, at the owner's expense. This shall be in addition to the other requirements of this chapter
and in addition to the applicable requirements for licensing as defined within this title, and this
procedure must be accomplished within 30 days after the owner's receipt of the dangerous dog
declaration issued pursuant to this chapter or Chapter 16.08 RCW.
7. The special license fee for a Dangerous Dog is $500.00 per year, in addition to the regular license
fee.
Page 4 of 5
CASE NUMBER: 17-15638
Owner/Keeper of dog:
Last Name:
Address:
Home Phone:
Description of dog:
Name:
Color(s):
Sex: M/F Altered
OFFICER: Heslin DATE ISSUED: 12/04/2017
AUBURN POLICE DEPARTMENT
ANIMAL CONTROL DIVISION
DANGEROUS DOG
INSURANCE REQUIREMENT FORM
First: MI: DOB:
City: State: _ Zip:
Work Phone:
-eed(s):
arkings:
Y/N Age:
TO INSURANCE/BOND AGENT:
Microchip / Tattoo:
The above described animal has been declared a Dangerous Dog by the Auburn Police
Department Animal Control Division per ACC 6.01 and 6.35, due to:
Per ACC 6.35.020(0(2)&(3): The owner/keeper of this animal must obtain a surety bond issued by
a surety insurer qualified under chapter 48.28 R.C.W. in a sum not less than $250,000 payable to a person
injured by the dog, and a policy of liability insurance issued by an insurer qualified under title 48 R.C.W. in
an amount not less than $250,000 insuring the owner or keeper for personal injuries inflicted by the dog.
Additionally, written notice must be provided to the City of Auburn Police Department within 30
ays or canceiiation, reatiction or smuts, or termination or coverage.
Please complete and sign this form, and return with a copy of the policy to the Auburn Police` Department,
Animal Control Division, 340 E. Main Street, Ste. 201, Auburn, WA 98002. (253) 931-3080 FAX (253) 931-
5108. Thank You
a41F WE s..
Insurance/Bond Agent:
Name:
Phone:
Date
Address:
Company Name:
insurance/Bond Agent:
Policy Number:
Page 5 of 5
Shawn Campbell
From: Jamie Heslin <jheslin@auburnwa.gov>
Sent: Tuesday, December 12, 2017 5:18 PM
To: 'Bob Johnson'
Subject: RE: Emailing: 17-15638 DD ASTRO.docx, 17-15638 DD XENA.docx
I contacted our City Clerk's office and confirmed that because Mrs. Johnson asked if they could be emailed, our legal
department said that would be fine, however so that all of the bases are covered, I will be sending you the forms via
certified mail tomorrow.
From: Jamie Heslin
Sent: Tuesday, December 12, 2017 3:41 PM
To: 'Bob Johnson' <justbob00@hotmail.com>
Subject: RE: Emailing: 17-15638 DD ASTRO.docx, 17-15638 DD XENA.docx
I spoke with the City Clerk's office and they agreed that it was okay to email you the forms. When I talked to Mrs.
Johnson she stated she did not want a hearing. I forwarded the email to the Chief's Secretary and someone should be
contacting you soon. I also let the City Clerk know that you are interested in a hearing. Page 3 of the packet I sent you is
for you to fill out to request the hearing.
E:XHIf34i�
Shawn Campbell
From: Bob Johnson <justbob00@hotmail.com>
Sent: Monday, December 11, 2017 7:39 AM
To: jheslin@aubumwa.gov
Subject: Fw: Emailing: 17-15638 DD ASTRO.docx, 17-15638 DD XENA.docx
Attachments: 17-15638 DD ASTRO.docx; 17-15638 DD XENA.docx
Hello Jamie,
Re: the unfortunate incident with Xena and Astro - there is no date listed on these word doc's for the
hearing..?
I left you 2 voicemails last week about this and haven't heard back, please let me know so I can schedule the
time to go to the hearing.
I do not have any info on the owner of the other dog involved in the fight, please pass along my apologies for
this unfortunate incident.
W,
From: Kathy Johnson <ktorina@yahoo.com>
Sent: Tuesday, December 5, 2017 5:04 PM
To: Bob Seattle Johnson
Subject: Fwd: Emailing: 17-15638 DD ASTRO.docx, 17-15638 DD XENA.docx
Sent from my Whone
Begin forwarded message:
From: Jamie Heslin <jheslin@auburwa.gov>
Date: December 5, 2017 at 4:46:21 PM PST
To: "'ktorina@yahoo.com"' <ktorina@yahoo.com>
Subject: Emailing: 17-15638 DD ASTRO.docx, 17-15638 DD XENA.docx
Here are the dangerous dog packets I spoke with you about. Let me know if you have any other
questions or did not receive these.
Thank you,
J. Heslin I Animal Control
Auburn Police Department
'XHIBIT-L ..
340 East Main Street #201 1 Auburn, WA 98002
253-931-3062 1 253-931-5108 fax
iheslin@auburnwa.gov
Your message is ready to be sent with the following file or link attachments:
17-15638 DID ASTRO.docx
17-15638 DD XENA.docx
Note: To protect against computer viruses, e-mail programs may prevent sending or receiving
certain types of file attachments. Check your e-mail security settings to determine how
attachments are handled.
The information contained in this electronic communication is personal, privileged and/or
confidential information intended only for the use of the individual(s) or entity(ies) to which it
has been addressed. If you read this communication and are not the intended recipient, you are
hereby notified that any dissemination, distribution or copying of this communication, other
than delivery to the intended recipient is strictly prohibited. If you have received this
communication in error, please immediately notify the sender by reply e-mail. Thank you.
M
Shawn Campbell
From: Jamie Heslin <jheslin@auburnwa.gov>
Sent: Tuesday, December 12, 2017 3:41 PM
To: 'Bob Johnson'
Subject: RE: Emailing: 17-15638 DD ASTRO.docx, 17-15638 DD XENA.docx
spoke with the City Clerk's office and they agreed that it was okay to email you the forms. When I talked to Mrs.
Johnson she stated she did not want a hearing. I forwarded the email to the Chiefs Secretary and someone should be
contacting you soon. I also let the City Clerk know that you are interested in a hearing. Page 3 of the packet I sent you is
for you to fill out to request the hearing.
�) l
HE 4.18.18
Exhibit 12
Submitted 4.18.18
THE AMERICAN KENNEL CLUB
XENA
ROBERT D JOHNSON
MARCH 17, 2018
ana Azi, 1t�CL !/i2 1�2P jQ//? ' �G�J;/P/!I
o�tcnis C9ood 94,on �vnectox
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ROBERT JOHNSON,
Appellant,
CITY OF AUBURN
Respondent.
HE 4.18.18
Exhibit 13
Submitted by: Appellant's Representative
Joseph Marshall
BEFORE THE HEARING EXAMINER
CITY OF AUBURN
CASE NO.: 17-15638
APPELLANTS' POST -HEARING
BRIEF
Comes Now Appellant Robert Johnson and submits this Post -Hearing Brief addressing issues
specified by the Hearing Examiner and reserving the right to supplement and respond to
arguments and issues raised by the City in its corresponding briefing.
A. The Hearing Examiner Correctly Excluded Medical Records
The Hearing Examiner correctly sustained Appellant's objection, subject to review of
further City briefing, to the admission of all medical documents and evidence without proper
expert foundation. Though hearsay can be admissible in administrative proceedings, it must be
of the kind that reasonably prudent persons are accustomed to rely upon in the conduct of their
affairs. RCW 34.05.452(1). Medical records consist of highly specialized and often abstruse
terminology that ordinary people cannot rely upon — that is why they rely on medical experts for
interpretation and opinion. See ER 702.
Pre -Hearing Brief I - Law Offices of Joseph H. Marshall, PLLC
6210 NE 1981' Street Kenmore, WA 98028
206-793-2227
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Also, as the Hearing Examiner correctly noted, even civil actions implicate due process
rights to confrontation. Admission of the medical records would unjustly deprive Appellants of
the same right. The records were thus properly excluded. Without medical records, the City has
failed to show sufficient evidence of injury required for a dangerous dog finding under ACC
6.O1.O1O(A)(13)(a) and (b). Notwithstanding, the City also lacks evidence of severe injury and
disfigurement — there is no evidence of permanent injuries -- further defeating a dangerous dog
finding under those subsections.
Nor has the city shown that there was any "allowance" or "permission' to let Xena and
Astro "run free" when the hearing evidence clearly pointed to a broken fence and not to any
volitional action by the Johnsons, and Ms. Johnson herself immediately went after her dogs when
she became aware they had gotten out of the yard. No prior escape incidents have occurred and
the City introduced no evidence otherwise. A finding under ACC 6.O1.O1O(A)(13)(d) is
therefore unsustainable.
Nor has the City proven "harassment" which requires a pattern of behavior or course of
conduct. See, e.g. RCW 10.14.020(1). Astro and Xena have had zero prior incidents and the
City has shown none. The City has likewise failed to show the hopelessly vague "torment" or
.'caused concern" elements under ACC 6.01.01O(A)(13)(e) — both elements plainly overbroad,
vague and unenforceable since they lack any objective standard and may be applied to multiple
innocent fact patterns at a whim. Mere barking or growling could "cause concern" for safety;
rambunctiousness, even appearance alone, or breed. The ACC here is vague and unenforceable.
See City of Spokane v. Douglas, 115 Wn.2d 171, 179 (1990).
Pre -Hearing Brief - 2 - Law Offices of Joseph H. Marshall, PLLC
6210 NE 1981' Street Kenmore, WA 98028
206-793-2227
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Strictly in the alternative and without waiver, if the Examiner admits medical records
over Appellant's objection, Exhibit E22 to the City's Response to Appellant's Pre -Hearing Brief
(CHI Franciscan Health Inpatient Record p.12) indicates that x-rays showed no signs of fracture
to Ms. Brown's left foot. Thus, the City still lacks evidence sufficient to prove severe injury.
Astro and Xena's completion of the Canine Good Citizen Program, with testimony of
their trainer Ms. Freeman and admission of their certificates, is uncontested. Lacking evidence
of severe injury, completion of the program is a complete defense under the proviso in ACC
6.01.010(A)(13). This alone defeats the dangerous dog finding.
Finally, sufficient evidence of Ms. Brown committing a tort on the Johnson's property
amounts to not only provocation, but also defeats a dangerousness declaration. The Johnson
property extended beyond their fence toward the sidewalk by a matter of inches. Ms. Brown
could not say exactly where her dog was immediately before the incident. The scratch marks on
the Johnson fence were unrefuted. As set forth in Appellant's Pre -Hearing Brief, trespass need
not only be intentional, but can be negligent as well. Ms. Brown's duty was to keep control of
her dog and keep it off the Johnson property as a reasonably prudent person would, rather than
not be aware of the very location of her dog. Ms. Brown breached that duty and committed
negligent trespass at the least. This amounts to a complete defense.
B. The City Failed to Give Proper, Mandatory Notice
Under Auburn City Code, 6.35.O2O(C), the City's duties as to notice are absolute:
Prior to the authority issuing its final determination, the authority shall notify the owner
in writing that he or she is entitled to an opportunity to meet with the authority...
The notice shall state the date, time, and location of the meeting, which must occur prior
to expiration of 10 calendar days following delivery of the notice... but such meeting
must occur within the 10-day time period set forth in this section. After such meeting, the
authority must issue its final determination, in the form of a written order, within 10
Pre -Hearing Brief - 3 - Law Offices of Joseph H. Marshall, PLLC
6210 NE 1981' Street Kenmore, WA 98028
206-793-2227
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calendar days... the order shall include a recital of the authority for the action, a brief,
concise statement of the facts that support the determination, and the signature of the
person who made the determination. The order shall be sent by regular and certified mail,
return receipt requested, or delivered in person...
(italics added).
The imperative notice language connotes absolute compliance by the City. If the code is to be
strictly applied to the Johnsons dogs, it equity it should be equally applied to the City. "Notice"
under the code is not "notice" if it fails to follow the code's plain requirements. Absent proper
notice the Johnsons have been deprived of their rights under the code and the City cannot issue a
finding against them and their dogs.
C. The Hearin, Examiner Has Jurisdiction to Rule on the Auburn Municipal
Code's Conflict With State Law
The Examiner is empowered — by the Auburn City Code itself -- to address the code's
impermissible conflict with state law under Washington Const. art. XI, § 11 and Rahon v. City of
Seattle, 135 Wn.2d 278, 292 (1998). Foremost, nothing in Washington's Administrative
Procedure Act may be held to limit the constitutional rights of any person. RCW 34.05.020.
This indicates the Act clearly contemplates that parties may raise constitutional issues of
whatever nature, since the word "rights" is not limited in any way. Second, ACC 2.46.030
"Creation of the hearing examiner" provides:
The examiner shall interpret, review, and implement land use regulations as provided in
this title and other ordinances, issues and matters as assigned, delegated and/or referred to
the examiner.
The plain language is expansive — referring not merely land use regulations as provided in Title
2, but to "other ordinances, issues and matters as assigned, delegated and/or referred..." There is
no restriction of the Examiner's jurisdiction to City of Auburn ordinances — because the words
"issues and matters" lack any such limitation. Had such a limitation been intended, the code
Pre -Hearing Brief
- 4 - Law Offices of Joseph H. Marshall, PLLC
6210 NE 198d' Street Kenmore, WA 98028
206-793-2227
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would have provided for it specifically as to those "issues and matters" with appropriate
qualifying language such as "arising from the code" or the like. Nor is there any qualifying
language to the means by which any "issues and matters" come before the Examiner — they are
"assigned, delegated or referred" without substantive limit.
Finally, as concerns the Examiner, ACC 2.46.035 "Powers and Areas of Jurisdiction" is
another expansive provision:
The hearing examiner shall have the power to receive and examine available information,
conduct public hearings, prepare a record thereof and enter findings of fact, conclusions
based upon those facts and enter decisions as provided by ordinance. Notwithstanding
any other provision in the Auburn City Code, the hearing examiner's areas of jurisdiction
shall include those matters contained in this chapter.
The code provides that the matters referred to are included in the areas of jurisdiction — not that
jurisdiction is limited to those matters. Thus, the code by implication embraces matters beyond
the code itself.
Turning to the substantive section of the ACC at issue, ACC 6.35.020(A) "Dangerous
dogs" provides in part:
In addition to the enforcement authority with which the animal control authority has been vested
pursuant to state law, the animal control authority shall be authorized to enforce the provisions of
this chapter; provided, that in connection with the enforcement of the provisions of this chapter to
seek to declare a dog within the city to be dangerous, the animal control authority shall employ
the notification and appeal procedures as defined in this section, including serving notice upon
the dog owner in person or by regular and certified mail, return receipt requested. (italics added).
By the code's plain language, state law is the starting point of Auburn animal control's
enforcement authority— enforcement of code provisions is "in addition to" authority vested by
state law. The two sources of power are therefore intended to be concurrent. Since there is no
question that the animal control authority's enforcement and powers are subject to appeal and
Pre -Hearing Brief
- 5 - Law Offices of Joseph H. Marshall, PLLC
6210 NE 1981' Street Kenmore, WA 98028
206-793-2227
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review, their powers, whatever their source -- state or local -- are likewise subject to review by
the Hearing Examiner. So is any conflict of those powers. At first glance, concurrent powers
might seem evidence of lack of conflict with state law. Any such intent, however, cannot hide
the code's direct conflict with state law. The code purports to prohibit that which state law
permits, in violation of Rabon above, by eliminating the requirement of death to a domestic
animal, and the requirement of severe injury to humans. The Examiner is therefore empowered
to rule on this fundamental issue and adhere to the statute rather than conflicting codes.
VII. CONCLUSION
For the above reasons the City's "dangerous dog" finding should be reversed.
DATED: April 27, 2018
By: ALIns =nh H_ Ma_mhall
Joseph H. Marshall WSBA#29671
Attorney for Appellants Johnson
Pre -Hearing Brief - 6 - Law Offices of Joseph H. Marshall, PLLC
6210 NE 198a' Street Kenmore, WA 98028
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HE 4.18.18
Exhibit 14 City of Auburn Post -He,
Brief
Submitted by: City of Auburn
BEFORE THE HEARING EXAMINER OF THE CITY OF AUBURN
NO. 17-15638
ROBERT JOHNSON, SUPPLEMENTAL BRIEF IN SUPPORT
Appellant. OF ADMITTING RECORDS INTO
EVIDENCE
This brief is submitted by the City of Auburn (the City) in support of admitting certain
records provided at the administrative hearing for the above -captioned matter on April 18, 2018,
into the evidentiary record. During the hearing on April 181h, counsel for the Johnsons objected
to the admittance of medical and veterinary records as hearsay and on the basis of lack of
foundation. The Hearing Examiner overruled the hearsay objection but raised a due process
objection sua sponte. The Hearing Examiner cited Chrobruck v. Snohomish County as the basis
for his objection, and allowed the parties to provide supplemental briefing on the matter first
raised at the hearing. In addition, the Examiner kept the record open so the city had could proffer
evidence to be admitted.
The purpose of this supplemental brief is to (1) distinguish the substantive and procedural
differences between the quasi-judicial forum at issue in Chrobruck with the administrative forum
now before the Hearing Examiner, (2) provide the appropriate criteria for determining the
admissibility of the records, and (3) explain how the medical and veterinary records submitted
SUPPLEMENTAL BRIEF CITY OF AUBURN
IN SUPPORT OF ADMITTING RECORDS INTO EVIDENCE City Attorney's Office
Page I of 17 25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
'ring
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by the City meet the appropriate criteria and should, therefore, be admitted into the evidentiary
record for consideration by the Hearing Examiner.
I. Chrobruck is instructive for land -use decisions in quasi-judicial proceedings
that are wholly devoid of basic notions of justice, but not for administrative
decisions outside of a quasi-judicial proceeding that meets basic notions of
justice.
At the most basic level, Chrobruck is inapplicable to this matter because a dangerous dog
declaration is not a land -use decision made in a quasi-judicial proceeding. However, even if a
dangerous dog declaration were considered a land -use decision made in a quasi-judicial
proceeding, it is still distinguishable where the proceedings in Chrobruck were wholly devoid
of basic notions of procedural justice. The net result is that the City is entitled to have the
challenged veterinary and medical records admitted into the evidentiary record of this matter.
A. The standards applicable to a dangerous dog declaration are not the same as the standards
applicable to a land -use decision made in a quasi-judicial proceeding.
In Chrobruck, the Court "vitiate[d] the legislation emerging" from "the hearings called
for by statute" because the hearings conducted were "wanting in apparent fairness." Chrobruck
v. Snohomish County, 78 Wn.2d 858, 871, 480 P.2d 489 (1971) (citing Smith v. Skagit County,
75 Wn.2d 715, 743, 453 P.2d 832 (1969)). None of these aspects are applicable to a dangerous
dog declaration.
The "legislation that emerged" in Chrobruck was the rezoning of a single property to
allow for an oil refinery in a residential area. Id, at 860. A rezone is a land -use decision. RCW
36.70C.020. In comparison, a dangerous dog declaration is not a land -use decision, "such as
when [the local government] acts in zoning matters." Coballes v. Spokane County, 167 Wn. App.
857, 865, 274 P.3d 1102 (2012). Because a dangerous dog declaration is not a land -use decision,
Chrobruck is inapplicable in this matter.
SUPPLEMENTAL BRIEF
IN SUPPORT OF ADMITTING RECORDS INTO EVIDENCE
Page 2 of 17
CITY OF AUBURN
City Attorney's Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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The "hearings required by statute" in Chrobruck are those prescribed by RCW 36.70.1
Chrobruck, at 863. Neither RCW 36.70 nor RCW 35A.63 apply to dangerous dog declarations.
Coballes, 167 Wn. App. at 863("The administrative process for protesting the director's
dangerous dog declaration begins with a timely request for appeal, after which an administrative
hearing is conducted). Instead of a quasi-judicial proceeding, RCW 16.08.080 sets forth the
administrative hearing requirements for dangerous dog declarations. This specific statutory
framework precludes the application of the zoning hearing framework to dangerous dog
declarations. See, e.g., Residents Opposed to Kittitas Turbines v. State Energy Facility Site
Evaluation Council, 165 Wn. 2d 275, 309, 97 P.3d 1153 (2008) (stating that "under the general -
specific rule, a specific statute will prevail over a general statute"). Because hearings required
by statute in Chrobruck do not apply to dangerous dog declarations, Chrobruck is in applicable
in this matter.
Finally, the court's reference to "wanting in apparent fairness" is a reference to the
apparent fairness doctrine. The apparent fairness doctrine "applies to judges in court
proceedings" and "is also statutorily created for local land -use... proceedings."2 Camarata v.
Kittitas County, 186 Wn. App. 695, 713, 346 P.3d 822 (2015). The appearance of fairness
doctrine has been extended to land -use proceedings because "when hearing an appeal of a rezone
application, the county council acts in a quasi-judicial capacity" and "the appearance of fairness
doctrine applies to quasi-judicial proceedings." Snohomish County Imp. Alliance v. Snohomish
County, 61 Wn. App. 64, 73, 808 P.2d 781 (1991) (citations omitted). Because a dangerous dog
declaration is an administrative hearing, not a quasi-judicial proceeding, Chrobruck is in
While RCW 36.70 applies in Chrobruck because the matter involved Snohomish County, RCW 35A.63 imposes
the same statutory structure to City land -use decisions.
2 Notably, Chrobruck was decided prior to the adoption of RCW 42,36.010. As a result, the appearance of fairness
concerns raised by the court are limited to the common law application to judicial proceedings. However, even wh
RCW 42.36,010 is applied, this matter is still beyond the scope of Chrobruck because a dangerous dog declaration
not one of the quasi-judicial, land use proceedings enumerated in RCW 42.36.010. Camarata v. Kittitas Cty., 186
Wn. App. 695, 713, 346 P.3d 822, 830 (2015) (Rejecting application of 42.36 to a voter registration determination
since the statute was created for local land -use proceedings)
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applicable in this matter. The medical and veterinary records submitted by the City should be
admitted into the evidentiary record for consideration by the Hearing Examiner.
B. The requirements of this administrative proceeding are distinguishable from other quasi
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iudicial proceedings that grievously deviated from standard notions of iustice.,
Notwithstanding that Chrobruck is inapplicable to this matter because a dangerous dog
declaration is not a land -use decision made in a quasi-judicial proceeding, the facts giving rise
to due process implications in Chrobruck are distinguishable from the present matter. In
Chrobruck, expert testimony was presented on highly technical subjects, including "oil refinery
processes, air pollution, noise levels, visual impact, water and vegetation contamination,
shipping and dockage operations, oil spillage control, tidal currents and fishery preservation."
Chrobruck, 78 Wn.2d at 870.
Despite the highly technical and unusual nature of these subjects, the parties were advised
"at the outset of the hearing... that cross-examination of any witnesses testifying during the
hearing would not be permitted." Id, at 861 (emphasis added). The Chrobruck court also noted
extensive ex parte communications, including a trip to Los Angeles where the property owner
"provided hotel accommodations and some meals... a big league baseball game" and travel
expenses, which were later reimbursed, as well as "several fishing excursions." Id, at 865-66.
Additionally, the Chrobruck court objected to the public statements of support made by planning
commissioners, including advertisements in the local newspaper. Id, at 867.
It was "the cumulative impact of the foregoing circumstances" that the court found to
violate due process. Id. It should come as no surprise that the "cumulative impact" of the
County's conduct in Chrobruck provoked judicial disapproval. The County's conduct "does not
pass strict scrutiny, or intermediate scrutiny, or even the laugh test." Reed v. Town of Gilbert,
135 S.Ct. 2218, 2239, 192 L.Ed.2d 236 (2015) (Kagan, J., concurring). The admission of medical
and veterinary records submitted by the City is qualitatively distinguishable.
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At a minimum, admitting the medical and veterinary records submitted by the City does
not preclude all cross-examination, as occurred in Chrobruck. During the April 18`I' hearing, the
Johnsons conducted cross-examination of all City witnesses. Moreover, there is nothing in the
record to indicate that the Johnsons provided the Hearing Examiner with a free trip to a sunny
location, that they went on fishing trips together, or that the Hearing Examiner purchased
advertising supporting the Johnson's position in this matter. Simply put, there is no "cumulative
impact" derived from the admission of the medical and veterinary records submitted by the City
into the evidentiary record. Indeed, records are regularly admitted without accompanying expert
testimony in civil proceedings, including medical records. See State v. Finkley, 6 Wn.App. 278
(1972), State v. Iverson, 126 Wn. App. 329, 338, 108 P.3d 799, 803 (2005); The medical and
veterinary records submitted by the City should be admitted into the evidentiary record for
consideration by the Hearing Examiner.
A review of Smith v. Skagit County, which was relied upon by Chrobruck, yields similar
results. In Smith v. Skagit County, the planning commission explicitly invited proponents of a
zoning change to present testimony and evidence in executive session while completely
excluding opponents to the zone change. 75 Wn. 2d 715, 743, 453 P.2d 832 (1969). The court
found that such conduct was "so wanting in apparent fairness as to vitiate the legislation
emerging from" it. Id. The court reached the conclusion that Skagit County's conduct was
"wanting in apparent fairness" by applying a test of fairness:
The test of fairness, we think, in public hearings conducted by law on
matters of public interest, vague though they may be, is whether a fair-
minded person in attendance at all of the meetings on an issue could, at
the conclusion thereof, in good conscience say that everyone had been
heard who, in all fairness, should have been heard and that the
legislative body required by law to hold the hearings gave reasonable
faith and credit to all matters presented, according to the weight and
force that were in reason entitled to receive. Id, at 741.
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City Attorney's Office
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Assuming arguendo that this matter meets the "public interest" description set forth for a land -
use proceeding, the admission of the records herein would not preclude a fair-minded person
saying in good conscious that all parties were heard, and that their testimony and evidence was
given proper weight and force.' The medical and veterinary records submitted by the City should
be admitted into the evidentiary record for consideration by the Hearing Examiner.
II. Although Chrobruck is inapposite, the Hearing Examiner still has applicable
standards to determine the admissibility of the records at issue.
Although land -use decisions in quasi-judicial proceedings like those in Chrobruck and
Smith v. Skagit County are not directly applicable, the Hearing Examiner is not without
applicable standards to determine whether to admit the medical and veterinary records submitted
by the City. For example, a record of a condition "shall in so far as relevant, be competent
evidence if the custodian or other qualified witness testifies as to its identity and the mode of its
preparation, and if it was made in the regular course of business, at or near the time of the...
event." RCW 5.45.020. This exception for business records applies across forums like land -use
decisions and dangerous dog declarations. 4
"Medical tests are presumed to be particularly trustworthy because the hospital relies on
its staff members to competently perform their duties when making often crucial life and death
decisions." Tennant v. Roys, 44 Wn. App. 305, 312,722 P.2d 848 (1986). As a result, the "proper
procedure" requires that "counsel objecting to the hospital record must point out the portions to
which he is objecting." Wolff v. Coast Engine Products, Inc., 72 Wn. 2d 226, 230, 432 P.2d 562
(1967) (citation omitted). A proper objection precludes admission of portions of medical records
3 In fact, the wholesale preclusion of testimony or evidence that occurred in Chrobruck and Smith v, Skagit County
indicate that a wholesale preclusion of the medical and veterinary records submitted by the City would deprive the
City of the fairness. Instead, as suggested by the City at the hearing on the 18'h, the Hearing Examiner has the
authority to admit the records into evidence, and to then give them the "weight and force" that they are "in reason
entitled to receive."
4 While RCW 5.45.020 may not be controlling in an administrative hearing, RCW 34.05.452 directs that the Rules
of Evidence, and presumably evidentiary provisions such as RCW 5.45.020, should be used as guidelines in
administrative hearings. See pp. 7-8, Infra.
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that include "conclusions based on speculation and conjecture." Young v. Liddington, 50 Wn. 2d
78, 83, 309 P.2d 761 (1957).
Under RCW 5.45.020 and related cases, the Johnson's objection to the medical and
veterinary records submitted by the City fails on two accounts: no specific portion of the record
was identified, and no indication that any portion amounted to "conclusions based on speculation
and conjecture."5 Such failure is dispositive of the Johnson's objection. For example, in Young
the court excluded "a medical gpinion as to causation, which is not the result of an observed act,
condition or event." Id, at 85. But unlike the unobserved conditions in Young, the veterinary and
medical records submitted by the City include observed conditions. For example, the diagnoses
of a fractured toe was based upon the medical professionals review of an x-ray. The medical and
veterinary records submitted by the City should be admitted into the evidentiary record for
consideration by the Hearing Examiner.
Like RCW 5.45.020, the Hearing Examiner in this matter is also guided by Washington's
Administrative Procedure Act. In an administrative proceeding, such as a dangerous dog
declaration "hearsay evidence, is admissible if in the judgment of the presiding officer it is the
king of evidence on which reasonably prudent persons are accustomed to rely on in the conduct
of their affairs." RCW 34.05.452. As recognized by the Hearing Examiner during the April 18"
hearing, medical records have been routinely admitted in dangerous dog proceedings without
this objection ever being raised. This history demonstrates that the medical and veterinary
records submitted by the City are those which a reasonably prudent person is accustomed to rely
upon. Thus, even if the medical and veterinary records submitted by the City do not meet the
hearsay exception in RCW 5.45.020, they are still admissible under RCW 34.05.452. Aside from
5 In the event that the Johnsons identify specific portions of the records that they assert are conclusions based on
speculation and conjecture, the City requests the right to submit a Reply brief to address arguments raised for the
first time in the Johnson's Response.
G Diagnoses not based on speculation and conjecture are admissible. "The diagnoses and recommended treatment, as
recorded in the physician's records, constitute admissible business records even though they reflect the exercise of
medical judgment." Tegland, COURTROOM HANDBOOK ON EVIDENCE, 384 (2013-14 ed.).
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Chrobruck, the statutory guidelines available in this matter indicate that the medical and
veterinary records submitted by the City should be admitted into the evidentiary; record for
consideration by the Hearing Examiner.luil]
Finally, the admission of medical and veterinary records, as either an exception to the
hearsay rule, or as admissible hearsay, is consistent with other administrative hearing offices in
Washington. For example, the rules of administrative procedure for Office of the Seattle Hearing
Examiner provides that "evidence, including hearsay, may be admitted if the Examiner
determines that it is relevant to the issue on appeal, comes from a reliable source, and has
probative value." City of Seattle Office of Hearing Examiner, Hearing Examiner Rules of
Practice and Procedure, § 2.17(a).7 The Seattle hearing examiner is also empowered to accept
"opinion evidence from non -experts" when "given appropriate weight" as well as "documentary
evidence in the form of copies or excerpts." City of Seattle Office of Hearing Examiner, Hearing
Examiner Rules of Practice and Procedure, § 2.17(c-d).
Similarly, the King County rules of administrative procedure provide that "any
trustworthy oral or documentary evidence may be received, including reliable hearsay." King
County Rules of Procedure and Mediation § XII(13)(1).8 The hearing examiner also "usually
admits lay witness opinions, even on matters normally within the purview of qualified experts
but considers lack of qualification in weighing such testimony." King County Rules of Procedure
and Mediation § XII(13)(2).
The medical and veterinary records submitted by the City would be admissible in
administrative hearing offices, such as the City of Seattle and King County, throughout the state.
The exclusion sought by the Johnsons seeks to eviscerate this standard practice, yet no
justification for so dramatic a deviation was provided. This Hearing Examiner should maintain
httn://www.scattle.tiov/examiner/does/EIl3-Rules-ol-Practice-and-ilroccdurc 042414.ndf
s htti)s://www.king,cowity.yov/—/triedia/indeiicndcn(/hearink-
examiner/documents/Rules Adot)ted by Motion 14876.ashx?1a-en
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past practice for this forum that is consistent with similar offices in Washington. Aside from
Chrobruck, the rules of administrative procedure used elsewhere in Washington that are
available for consideration in this matter indicate that the medical and veterinary records
submitted by the City should be admitted into the evidentiary record for consideration by the
Hearing Examiner.
III. The City is entitled to the admittance of the veterinary and medical records into
the evidentiary record of this matter.
Having addressed whether admission of medical records without accompanying expert
testimony creates a Chorbruck type appearances of fairness issue, the city now turns to whether
the records are admissible. At the hearing, the Johnsons disputed their admissibility on the basis
of foundation and hearsay. The latter objection was overruled. The Examiner left the record
open and gave the city the opportunity to brief the former objection and the Chorbuck issue.
Before addressing the foundation objection, the City will identify, in order to frame the
issues, the particular portions of the medical records that establish the severity of Ms. Brown's
and her dog's injuries. Since the Examiner left the record open for the purpose of the City
submitting medical records, the City has attached to this brief the certified records from the four
providers. Turning the Exhibit A, the veterinarian records of Afford A Vet, the City offers the
following excerpts as establishing the severity of the injury to Ms. Brown's dog (page numbers
reference the stamped page numbers, not the page numbers of the document):
Page 9: "Multiple puncture wounds proximal right limb."
"Multiple bite wounds over back of head, cervical region on right side, right
axilla and right proximal limb."
Page 10: "Most obvious bites found over right forelimb outer and inner, right ear, and
cervical region of head. Crushing and bit noticed over trachea mid cervical
region, but wound was more crushed than punctured."
"Cervical pocket explored, very extensive approximately 15 cm caudal from
base of skull and 17-18 cm down right side and over 10 cm"
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"Cervical pocket — the dermal layer was separated from muscle and was
concerned that dermal layer may slough off..."
Page 11: "Lateral right arm and shoulder: Several bite wounds present Pocket explored
—4-5 cm X 2 cm pocket found."
"Medial right arm and axillae: Several bite wounds present Pocket explored —7
cm X 2-2.5 cm pocket found starting at the body wall 3 cm cranial of axillae
and exiting at the elbow. 5 punctures present that went through the full
thickness of the dermis."
Page 12: "Dr. Todd O very concerned that P may lose skin ie skin slough in larger
pockets and wanted to monitor patient an how she is recovering."
From Exhibit B, the medical records of CityMD, the following helps establish that Ms.
Brown suffered severe injury in the dog attack:
Page 2: "Location: Left Lower Leg. Inspection: Puncture would of distal anterior
left lower leg.
"Location: Left, Big Toe. Inspection: Multiple abrasions and lacerations
of the left 181 toe..."
Page 8: "Findings There is a fracture involving the articular surface of the distal
phalanx laterally. Displacement is limited. There is also a tuft fracture, also
with minimal displacement. Some oft tissue swelling is noted."
From the records of CHI Franciscan Health, Exhibit C, the City proffers the following
entries9:
Page 11: "Open bite of left great toe without damage to nail, initial encounter"
"Open bite, left lower left, initial encounter"
Page 21-22: "Consults by Stephanie Oexeman, DPM at 11 /29/2017 7:48 pn (date of
Service note Date/Time)... Assessment: Dog bite, left lower extremity...
9
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patient and imaging evaluated. Patient's left toe and shin were bitten by a dog
this afternoon. Patient was seen at urgent care prior to coming to ED. X-rays
taken at urgent care. Puncture wound to anterior left shin. Several punctures to
left great toe. Digit is swollen ecchymosis present dorsally."
Finally, the following are entries from the medical records of Dr. Terry Felts, attached as
Exhibit D, that confirm the fracture of Ms. Brown's toe and the impact of this and her other
injuries:
Page 2: "She has dressings on multiple wounds of her left lower extremity. She also
points out several other contusions on both extremities as well as upper and
lower."
"There is notable bruising about the deep circular wound on the enter aspect of
the left leg proximally in inch in diameter and 1 centimeter in depth with a black
eschar for base."
"imaging: patient comes in with a disc of studies taken had urging care. It does
confirm fracture the base of the distal phalanx of the hallux, it does not directly
correlate with the known puncture wound but is consistent with the ara of
hematoma under the nail. It is minimally displaced. Assessment multiple
wounds, contusions, open fracture all consistent with reported dog attach no
current signs of progressing infection."
Page 3: "Plan discussed finding with patient. I'm primarily concerned about the deep
wound on her anterior left leg.... We discussed the use of collagenase on the
left anterior wound. There is definitely tissue loss in the area and concern for
additional loss to the crushing nature of the injury. We will continue to monitor.
Consider when clinic evaluation, Regranex, or grafting as needed."
The attached exhibits and the above entries from those exhibits are admissible without
expert testimony. It is within an Examiner's discretion to admit medical records without expert
testimony. Neither the Evidence Rules nor RCW 34.05 require the medical records be admitted
with expert testimony. Rather, RCW 5.45.020 plainly authorizes the admission of business
records, which medical records are a subcategory, without expert testimony. In fact, to meet the
requirements of the Uniform Business Records Act, RCW 5.45, "it is not necessary to examine
the person who actually created the record so long as it is produced by one who has the custody
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of the record as a regular part of his work..." Cantrill v. American Mail Line, 42 Wn.2d 590,
608 (1953). "As applied to hospital records, compliance with the act obviates the necessity,
expense, inconvenience and sometimes impossibility of calling as witnesses the attendants,
nurses, physicians, X-ray technicians, laboratory and other hospital employees who collaborated
to make the hospital record of the patient." Id. As a result, a non -physician may enter medical
records under the Act. Finkley, 6 Wn.App. at 280.
Such expert testimony may be required where the process of authenticating a record is
so technical that it must be accomplished through expert testimony. In these cases, the testimony
is necessary to establish that a machine or operation functioned as it was supposed to do. The
testimony establishes the accuracy or integrity of the process that creates the report or data, such
as with computer -generated data. See United States v. Espinal-Almeida, 669 F.3d 588, 612-613
(1st Cir. 2012) (the issues surrounding the processes employed by the GPS software, and their
accuracy, were not so scientifically or technologically grounded that expert testimony was
required to authenticate the evidence). The accuracy and integrity of the medical records are not
at issue here. The Johnsons only raised an objection to the ability of the Examiner to understand
their content. The accuracy and authenticity of the records are established by the certifications
and through testimony.
Thus, it is apparent that foundational rules do not require the production of a expert
witness prior to admission of medical or other technical records. Indeed, if such was the case
many self -authenticating records tinder ER 902 — certified copies of public records, official
publications, newspapers and periodicals — would no longer be self -authenticating if containing
specialize knowledge. And certainly an X-ray, allowed by ER 904, would not meet the standard
of automatic admissibility of that rule.
Nor do other rules require such expert testimony for admission of medical records. Rule
702, which provides for the admission of expert witnesses, does not require medical records be
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presented through a testifying expert. Rule 702 provides only that a party may offer expert
testimony to assist the trier of fact in understanding the evidence. The City, or the Johnsons,
could have offered expert testimony to explain the medical records to the jury, but Rule 702 did
not require such testimony.
Similarly, ER 403 is not a basis for the Johnsons' objection to admission of the medical
records. ER 403 permits a judge to exclude confusing evidence if the risk of confusion
outweighs the evidence's probative value. But, the balancing test under ER 403 is designed
primarily for jury trials. A trial judge is presumed to know the rules of evidence and is presumed
to have considered only the evidence properly before the court, and for proper purposes. In re
Harbert, 85 Wn.2d 719, 729 (1975), In addition, a balancing of the risk of confusion and the
value of the evidence was not sought or conducted at the hearing. Certainly, if one had been
conducted the probative value of the medical records would outweigh their risk of confusion.
As is discussed below, the pertinent parts of the records are not so filled with medical jargon or
medical discussions to be confusing to the Examiner, even in the absence of medical testimony
to explain them. At the same time, they have considerable probative value since they contain
the observations of a medical professional regarding the type and degree of Ms. Brown's injuries.
Finally, the lack of expert testimony does not render the medical records irrelevant. The
medical records are very relevant where one of the elements of the Auburn code's definition of
"dangerous dog" requires proof of the infliction of severe injury. Further, expert testimony is
only necessary to establish causation or damages as to medical conditions outside the common
knowledge and experience of jurors. Fabrique v. Choice Hotels Intl, Inc., 144 Wn. App. 675,
685 (2008) (expert medical testimony is often necessary to establish causation where the nature
of the injury involves obscure medical factors which are beyond an ordinary lay person's
knowledge, necessitating speculation in making a finding). "If the issue involves a matter of
common knowledge about which inexperienced persons are capable of forming a correct
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judgment, there is no need for expert opinion." State v. Smissaert, 41 Wn.App. 813, 815 (1985).
The injuries stated in the attached medical records, while serious, are within the common
knowledge and experience of ordinary persons and do not require expert testimony. The records
do not contain the opinions of the medical professionals, but simply their observations and
diagnosis. These are admissible. Tegland, COURTROOM HANDBOOK at 384. Moreover,
the hearing was not before a jury. We assume that a judge or administrative law judge is able to
disregard irrelevant or unclear evidence. And where one word creates lack of clarity, a judge or
an examiner may, of course, pursuant to ER 201, access a dictionary to enhance the clarity of a
document. Accordingly, it is not an abuse of discretion for the Examiner to admit the proffered
medical records without expert testimony.
Conclusion
Under the Evidence Rules, the requirement of authentication, or laying a foundation,
assures that the evidence meets minimum requirements for relevance. The rules require the
proponent to make only a prima facie showing that the evidence is authentic. State v. Danielson,
37 Wn.App. 469 (1984). The rules do not intend that authentication create a narrow opening for
the admission of evidence. Admission does not necessarily lead to reliance, nor precludes attack
of them. Once evidence is admitted an opposing party is able to dispute and attack the evidence
and generally argue against reliance. The Johnsons' objection confuses this opportunity to
diminish the weight of the evidence with the question of admission of the evidence. The
Johnsons were, of course free to dispute, draw adverse conclusions from, diminish the
importance of, and otherwise make arguments based on the medical records. In fact, the
Johnsons already did so -- noting at the hearing that one record states that Ms. Brown did not
receive a toe fracture in the dog attack. They were free to speak to the professionals about the
records, or call them, or other experts, to testify as a means of challenging or clarifying those
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CITY OF AUBURN
City Attorney's Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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records.10 But no rule or statute required the City to take that step. To hold a party to such a
requirement would greatly diminish the amount of business records that are allowed as evidence
in civil proceedings.
RESPECTFULLY SUBMITTED this �-'7 day of �N�,Q-tom , 2018.
ouglas Ruth, WSBA #
Attorneys for City of Auburn
City of Auburn City Attorney's Office
25 West Main Street, Auburn, WA 98001
(253) 804-5026
druth;aiauburnwa.gov
10 The city is aware that it may have been impractical for the Johnsons to seek expert input on the medical records
prior to the hearing due to them receiving the records only with the city's pre -hearing brief. However, this did not
prejudice them. They had the opportunity to move for a continuance for that purpose. The city would certainly not
have opposed such a motion.
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Page 15 of 17 25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 9314007
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HE 4.18.18
Exhibit 15 City's Response to
Appellant Post Hearing Brief
Submitted by: City of Auburn
BEFORE THE HEARING EXAMINER OF THE CITY OF AUBURN
ROBERT JOHNSON,
Appellant,
CITY OF AUBURN,
Respondent.
NO.
RESPONSE TO APPELLANTS' POST -
HEARING BRIEF
This Response is submitted by the City of Auburn (the City) in response to the
Johnson's Post -Hearing Brief.
I. Auburn City Code 6.35 is Not Preempted by State Statute.
During the hearing on April 18t", counsel for the Johnsons raised an argument that the
City's dangerous dog code was in conflict with, and therefore preempted by state statute. In
response, the Hearing Examiner noted that he may lack authority to adjudicate such a conflict.
The Hearing Examiner provided the Johnsons the opportunity to submit supplemental briefing
on the issue and they have done so. They have not established, however, that there is a conflict
between the City's code and state statute, or that a hearing examiner has authority to adjudicate
statutory and constitutional arguments such as the Johnsons' conflict/preemption argument.'
' The City's Response will not address the Johnsons' arguments regarding the medical records other than to note
that both the CityMD radiologist and Dr. Felt concluded that Ms. Brown suffered a fractured toe.
RESPONSE TO APPELLANTS' CITY OF AUBURN
POST -HEARING BRIEF City Attorney's Office
Page 1 of 6 25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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A. The City's dangerous dog code is consistent with, and valid alongside, state
law: there is no conflict or preemption.
Cities are vested with "the broadest powers of local self-government consistent with the
constitution of this state." RCW 35A.01.010. The Johnsons argue that "the code purports to
prohibit that which state law permits, in violation of Rabon above, by eliminating the
requirement of a death to a domestic animal, and the requirement of severe injury to humans."
Appellants' Post -Hearing Brief, p. 6. The Johnsons' argument ignores well -settled law. Cities
are empowered to adopt legislation that "goes farther in its prohibition — but not counter to the
prohibition under the statute." City of Seattle v. Eze, I I I Wn. 2d 22, 33, 759 P.2d 366 (1988).
"A local ordinance does not conflict with a state statute in the constitutional sense
merely because one prohibits a wider range of activity" than does the other." Id. Yet this is
exactly what the Johnsons' inexplicably take objection with. In fact, in Rabon, the very case
the Johnsons cite, the court upheld the Seattle's dangerous dog ordinance, which is
substantially similar to the City's.3 "Both local and state law may govern dangerous dogs."
Rabon v. City of Seattle, 135 Wn. 2d 278, 290 (1998). Where the Washington Supreme Court
has explicitly approved dangerous dog legislation by city governments, this Hearing Examiner
is bound to follow.
B. This Hearing Examiner is without jurisdiction to adjudicate Appellant's
conflict/preemption argument.
"Administrative agencies are creatures of the legislature without inherent or common-
law powers and may exercise only those powers conferred either expressly or by necessary
2 The Johnsons allege that the City has "eliminate[d] the requirement of a death to a domestic animal, and the
requirement of severe injury to humans." Appellants' Post-Ifearing Brief, p. 6. But ACC 6.01.010(A)(13) explicitly
defines a dangerous dog as one that "(a) inflicted severe injury on a human being' or (b) killed... a domestic
animal." ACC 6.01.010(A)(13)(a-b). At no point has the City eliminated these requirements: they are both present it
both City code and state statute.
3 "the SMC 9,25.024 defines a vicious animal as "an animal which bites, claws or otherwise harms a human being of
another animal, or which demonstrates menacing behavior toward human beings or domestic animals" except where
a person or other animal has provoked it. Rabon, 135 Wn.2d at 287-88
RESPONSE TO APPELLANTS'
POST -HEARING BRIEF
Page 2 of 6
CITY OF AUBURN
City Attorney's Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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implication." Chausee v. Snohomish County Council, 38 Wn. App. 630, 636, 689 P.2d 1084
(1984) (emphasis added). Auburn City Code 2.46.120(A) provides that appellants "shall have
the burden of proof, by a preponderance of the evidence, as to material factual issues except
where applicable city code provisions or state law provides otherwise." ACC 2.46.120(A)
(emphasis added). Whether the City's dangerous dog code conflicts with, or is preempted by,
State statute is not a material factual issue, it is a matter of statutory interpretation.
Accordingly, this Hearing Examiner is "without jurisdiction" to adjudicate the Johnsons'
conflict/preemption argument and instead is strictly limited to applying applicable code
provisions. Id at 638.
The Johnsons argue that "nothing in Washington's Administrative Procedure Act may
be held to limit the constitutional rights of any person" and that, consequently, "parties may
raise constitutional issues of whatever nature, since the word `rights' is not limited in
anyway."4 Appellants' Post -Hearing Brief, p. 4. Notwithstanding established law, such as
Chausee to the contrary, the Johnsons' statement itself is, internally, self-defeating. It is
patently false to indicate that "the word `rights' is not limited in anyway. In the Johnsons' own
statement, the word "rights" is limited by the word "constitutional." Despite this, the Johnsons
put forward no statute, case, or other authority for the proposition that unregulated ownership
of a dangerous dog is a constitutional right. Nor have they shown how any provision of the
APA is limiting their constitutional rights in this proceeding. RCW 34.05.020 indicates that a
party may raise a constitutional issue if the APA, not a city code, is impinging upon a
constitutional right.
° Although the Johnsons contend that the provisions of the Administrative Procedure Act are "foremost," the APA
is not binding authority on this Hearing Examiner. Unrelated statutes are not a mechanism for interpreting the
effect of a particular statute. Key Brrnk v. Everett, 67 Wn. App. 914, 919 (1992), review denied, 121 Wn. 2d 1025,
(1993). This Hearing Examiner is authorized solely by ACC 2.46. Although the APA may offer useful guidelines,
it is an unrelated statute.
RESPONSE TO APPELLANTS'
POST -HEARING BRIEF
Page 3 of 6
CITY Or AUBURN
City Attorney's Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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However, even if Appellants could assert a constitutional right, the adjudication of
constitutionality is beyond the authority of this Hearing Examiner. In Chausee the court upheld
the examiner's ruling that "The appellant's issues of due process... are found by the examiner
to be beyond the scope of his authority and are not decided." Chausee, 38 Wn. App. at 633-34
(quotation omitted). The scope of the examiner's authority under the Auburn City code is no
more expansive. Challenging the constitutionality of a City code provision is not listed in
ACC 2.46.035. Neither is it an issue that was "assigned," "delegated," or "referred" to the
examiner, nor an "area of jurisdiction" established by ordinance or resolution. Whatever the
authority of the animal control authority under ACC 6.35.020, the authority of the hearing
examiner pursuant to that subsection is to determine whether the animal control authority's
dangerous dog declaration "is in accordance with the provisions herein and pursuant to the
procedures of the city code." ACC 6.35.020(D). This does not allow review of preemption
claims.
H. The City Provided Adequate Notice
Turning to the procedures of the code, the Johnsons again raise the issue of proper
notice.5 They cite to the City code giving emphasis to its compulsory language. But, they do
not state how the City violated each compulsory requirement. In fact, the City did not violate
these requirements. The City did provide notice in writing that the owners were entitled an
opportunity to meet with the police. (Exhibit 5 pp58-65) The owners did receive that notice
within 10 days of the hearing date. (Exhibit 4 pp 53-54) The hearing did occur within that 10
day period. (Exhibit 3) The police did issue a final written determination within 10 days and it
was sent by mail to the Johnsons (Exhibit 3). And that determination did cite the authority for
the action, give a concise statement of the facts, and provide the signature of the person who
5 This issue is not one of the topics assigned for additional briefing. However, since the Johnson have raised it the
City will briefly reply.
RESPONSE TO APPELLANTS'
POST -HEARING BRIEF
Page 4 of 6
CITY OF AUBURN
City Attorney's Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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made the determination. (Exhibit 3). The only way that the city failed to follow ACC
6.35.020 was its failure to list the meeting time in the notice.
Of course, the fact that the City's written notice was delivered on the same day that the
hearing occurred is less than optimal. But, neither this fact nor the failure of the city to list the
hearing date in the written notice establish a basis for finding noncompliance with ACC
6.35.020 or the prerequisites of procedural due process. The testimony at the April 18th
hearing established that the Johnsons received actual notice of the declaration via email and the
date of the hearing via telephone call. Despite the Johnsons' unsupported claim that notice
provisions must be strictly adhered to, a party may deviate from a code's notice requirements
and still effect sufficient notice. If a party has substantially complied with a notice statute
actual notice may serve as statutory notice. 15A Wash. Prac., Handbook Civil Procedure §
6.12 (2017-2018 ed.) ("If a deadline imposed by a statute or court rule is missed, the court may
forgive the error if counsel has substantially complied with the applicable procedure." Citing In
Matter ofSaltis, 94 Wn. 2d 889 (1980) (where notice was directed only to a department,
substantial compliance could be found if the department director received actual notice or if the
notice was served "in a manner reasonably calculated to give the director actual notice of the
pending appeal".) See also, Sheldon v. Fettig, 129 Wn.2d 601, 608-09 (1996) (rejecting strict
construction of service of process statutes and in order to effectuate the purpose of the statute
following sister jurisdictions' rule of liberal construction when actual notice is received).
Here, the city substantially complied with ACC 6.035.020. The only act of
noncompliance was its failure to list a hearing date in the written notice. This failure and the
ill-timed written notice did not frustrate the code's purpose in light of the Johnsons receiving
adequate and timely actual notice.
Regardless, any defect did not impact the Johnsons' right to appellate review by the
Hearing Examiner. They had an opportunity to raise the notice issue and seek relief from the
RESPONSE TO APPELLANTS'
POST -HEARING BRIEF
Page 5 of 6
CITY Or AUBURN
City Attorney's Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 9314007
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Assistance Chief of Police, and they did not. Any slight defect in the notice for that review
does not justify relief now.
If the shoe was on the other foot, the City would not seek dismissal of an owner's
petition for review. It certainly would, of course, seek dismissal for an untimely request for
review by the Hearing Examiner. But that is not the comparable situation. The Johnsons do
not allege that the City failed to provide adequate notice of the April 18" hearing. They allege
error in the notice for the initial appeal. If the City discovered during review by the hearing
examiner that an error occurred in an owner's request for his first appeal, it would not seek
dismissal of his claims in front of the hearing examiner. The City would conclude that it had
waived any objection, was estopped from seeking dismissal on such grounds, or that a mistake
in a petition for the initial appeal was insufficient grounds for a motion to dismiss the owner's
subsequent appeal. Simply, a procedural error in one appellate proceeding is not a basis for
providing relief at a subsequent and distinct appeal.
RESPECTFULLY SUBMITTED this I day of , 2018.
RESPONSE TO APPELLANTS'
POST -HEARING BRIEF
Page 6 of 6
Douglas Ruth, WSBA #
Attorney for City of Auburn
City of Auburn City Attorney's Office
25 West Main Street, Auburn, WA 98001
(253)804-5026
druth'a�.auburnwa.kov
CITY OF AUBURN
City Attorney's Office
25 West Main Street
Auburn Washington 98001-4998
(253) 931-3030 FAX (253) 931-4007
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ROBERT JOHNSON,
Appellant,
CITY OF AUBURN
Respondent.
HE 4.18.18 Pgs. 4
Exhibit 16 Appellant's Response to City's
Post -Hearing Brief
Submitted by: Appellant's Representative
Joseph Marshall
BEFORE THE HEARING EXAMINER
CITY OF AUBURN
CASE NO.: 17-15638
APPELLANT'S RESPONSE TO CITY'S
POST -HEARING BRIEF
Comes Now Appellant Robert Johnson and submits this Response to the City's Post -
Hearing Brief. The Johnson further reincorporates all previous arguments and ask that the
"dangerous dog" finding below be reversed.
I. ARGUMENT
A. The City's Medical Records Should Be Excluded
The City argues in effect that a business records custodian's declaration renders medical
records admissible, without expert foundation. This argument and the City's citations cannot
eviscerate ER 702, which requires such a foundation:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise.
Pre -Hearing Brief - 1 - Law Offices of Joseph H. Marshall, PLLC
6210 NE 1981 Street Kenmore, WA 98028
206-793-2227
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The expert called for is not a records custodian but a medical expert, given that the City's
proffered evidence is not within the realm of common knowledge but is "scientific, technical or
other specialized knowledge." A diagnosis is that most fundamental of medical opinions and
requires proper foundation. The City has offered no foundational support as to the education,
training, licensing, vocational histories, or current practices of the professionals who gave the
very opinions the City relies on to make its case against the Johnsons, much less the medical
theories and methods of practice the professional used to arrive at their opinions. The City has
merely offered boilerplate declarations from records custodians that do nothing to legitimize,
much less elucidate, the medical conclusion themselves.
The proffered evidence is replete with specialized, arcane diagnoses and opinions, which
amounts to a further basis to exclude the medical records herein. The City's addressing potential
for confusion under ER 403 is a valid concern as well, since the Hearing Examiner is not a
Special Master applying particular substantive knowledge of a given discipline to this case. The
Examiner has legal expertise only and can only assess evidence before him based on lay
knowledge. Where interpretation of that evidence requires expert knowledge, without an expert,
the evidence is inadmissible.
If a document hypothetically clears the business records hurdle, it is not magically
immune from further applicable rules of evidence, such as ER 702. Standards the City cited for
other hearing examiners do not do away with the expert foundation requirement either, but
merely reiterate the general hearsay exception.
The Hearing Examiner's concerns regarding the right to confrontation also remain well -
taken. Evidence is to be tested by the adversarial process within the crucible of cross -
Pre -Hearing Brief - 2 - Law Offices of Joseph H. Marshall, PLLC
6210 NE 19801 Street Kenmore, WA 98028
206-793-2227
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examination, and adverse parties are permitted to present other challenging evidence." Anderson
v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 607, 260 P.3d 857 (2011) (citing Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 596, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). The
City is correct that the cumulative effect of the violations in Chobnick v. Snohomish County, 78
Wn.2d 858 (1971) was central in that case, but denial of the opportunity to cross examine cannot
be underestimated. Though the confrontation violation was reviewed in the context of the
appearance of fairness doctrine, it nevertheless confirms that even in the civil context, the right
to confrontation is vital.
Admission of medical records for the substantive determination of legal elements herein
violates the right to confrontation, requiring exclusion of the records. The importance of
confrontation is reiterated by the Washington Administrative Code:
Administrative courts should not rely exclusively on hearsay evidence if doing so would
unduly abridge the parties' opportunities to confront witnesses and rebut evidence.
WAC 388-02-0475(3).
Though Appellants did not seek another continuance, the City did not provide Appellants with
certain medical records until the hearing itself. Where applicable, a presiding officer may order
that documentary evidence not submitted in advance as required be not received in evidence
absent a showing of good cause. WAC 10-08-140. The medical records should be excluded.
Pre -Hearing Brief - 3 - Law Offices of Joseph H. Marshall, PLLC
6210 NE 198t' Street Kenmore, WA 98028
206-793-2227
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VIL CONCLUSION
The Hearing examiner correctly excluded the City's proffered medical records and the
"dangerous dog" finding should be reversed on these grounds and the others cited by Appellants.
DATED: MAY 4, 2018
Pre -Hearing Brief
-4-
By: /s/Jaseph H. Marshall
Joseph H. Marshall WSBA#29671
Attorney for Appellants Johnson
Law Offices of Joseph H. Marshall, PLLC
6210 NE 1981 Street Kenmore, WA 98028
206-793-2227
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