Legislating a Solution to Animal Shelter Euthanasia: A Case Study of California’s Controversial SB 17851

Sarah A. Balcom 1

On September 22, 1998, California Governor Pete Wilson signed Senate Bill 1785 into law, dramatically affecting the entire California animal sheltering community. Dubbed the “Hayden law” by the animal protection community after the bill’s sponsor, it represents the state of California’s attempt to legislate a solution to both the companion animal overpopulation problem and the friction between the agencies trying to end it. The persistence of the bill’s primary supporters, a Los Angeles veterinarian and a UCLA law school professor and the overall lack of opposition to it helped SB 1785 sail through the California legislature. Because of the scope of the bill and the immense cost of implementation, its passage shocked many in the sheltering community.

This case study highlights the consequences of legislation that was crafted based on worse case scenarios and over which there was little collaborative effort. It concludes with suggestions that might be useful to other states contemplating similar such legislation.

Policy concerning companion animals in shelters, and particularly what to do with the unadopted animals, always has been a contentious issue. Central to the debate is the use of euthanasia. Indeed, major humane organizations sometimes find themselves in conflict with one another because of their euthanasia policies. In California, a controversial piece of legislation, Senate Bill 1785 (Chapter 752, Statutes of 1998 (SB 1785), was recently passed to ameliorate the problems plaguing the state’s shelters. Introduced by State Senator Tom Hayden, the so-called Hayden law arose out of desperation over the approximately 560,000 animals who were being euthanized each year. SB 1785 is the first statewide legislation that sets out detailed mandates about how humane societies, animal shelters, and animal control agencies should operate.

California has been a staging ground for many of the battles in the war on companion animal overpopulation. The 1990s witnessed the creation of several controversial efforts to end the euthanasia of healthy animals in shelters, including the San Mateo breeding ordinance and the growth of the “no-kill” movement led by the San Francisco Society for the Prevention of Cruelty to Animals (SPCA). During this time, overpopulation and euthanasia returned to the foreground of public attention. The controversy that erupted also served to divide the sheltering community, fueling a heated debate about the “right” way to care for animals and the necessity of euthanasia (HSUS, 1997)3 . This article originally appeared as a legislative case study titled “Legislating Shelter Animal Welfare” as part of the requirements for the degree, Master of Science in Animals and Public Policy. For helpful comments and revisions, the author wishes to thank Dr. Gary Patronek. The “no-kill” debate informed the creation and controversy over SB 1785, a bill that some have called the “no-kill bill” since it codifies many of the concepts laid out in the San Francisco SPCA’s Adoption Pact.

The Hayden bill was possible because several highly visible shelters in California were not providing the level of care that their communities and critics thought necessary. In the wake of Proposition 13, recession and high inflation that characterized the 1980s, fiscal austerity across the state led to chronic underfunding of many municipal services, including public shelters. One of the most notable examples was the Los Angeles City shelter system. The symptoms of the city’s six critically underfunded shelters, including overcrowding, poor record keeping, high euthanasia rates, and deteriorating buildings led to a lawsuit against the city and hearings by Hayden.

This case study traces the evolution and initial implementation of an important piece of animal sheltering legislation. It shows why and how a bill that nobody thought would pass did pass and the consequences of inaction, distrust, and resentment in the legislative process. Had more open, constructive dialogue been possible during the legislative process, this bill would have been less controversial and more effective. The history of SB 1785 points out that policy created without the input of the people it affects is likely to create as many problems as it remedies.

Method

This case study describes a complex and controversial law about which there are many issues and many opinions. For this reason, a wide range of people and sources were consulted to capture as many of the complexities of this legislation as possible. This study is based on interviews with both proponents and opponents of SB 1785, less formal e-mail and phone communication with other members of the California sheltering community and primary and secondary document analysis. Interviews were conducted with the bill’s two primary supporters, a representative of the Marin County shelter (which supported the bill), representatives from the Humane Society of the United States and the American Humane Association (organizations opposed to the bill), the League of California's representative, and a former California shelter director. Other parties involved with the legislation were consulted by email and in less formal phone conversations, including the California State Humane Association, the Fund for Animals, and the Los Angeles City shelter system. Primary documents such as legislative analyses, correspondence and hearing records (written and videographic) were also reviewed, as were secondary sources such as newspapers, sheltering publications and newsletters, internet sites, and seminar proceedings.

The Origin of SB 1785

A Time for Change

In 1996, California State Senator Thomas Hayden ran for mayor of the City of Los Angeles. Paula Kislak, a veterinarian and board member of the Association of Veterinarians for Animal Rights (AVAR), became involved in his campaign because she felt he could “make a very real difference overnight for the 80,000 animals a year that go through the L. A. City shelters.” (personal communication, November 17, 1999). During this time, Hayden became aware of several serious problems facing the city’s shelters. These problems were grave enough to prompt a few private citizens to take legal action, suing for a writ of mandamus to order the Los Angeles shelters to comply with the then-current legal standards of care for animals (Newman et al. v. The L.A. City Dept. of Animal Regulation , 1997).

According to Taimie Bryant, a University of California at Los Angeles (UCLA) law professor who helped write SB 1785, the lawsuit showed that the Los Angeles shelters were not always following basic animal care requirements set out in the state’s anti-cruelty laws (personal communication, December 7, 1999). Individuals who used the shelters as well as members of rescue organizations gave testimony in sworn affidavits; the allegations, if true, showed considerable deviation from what the law required (Newman et al ., 1997). In the final decision, California Superior Court affirmed that it was the shelters’ responsibility to follow the anti-cruelty laws, regardless of their financial ability to do so. However, the court also ruled that there were not enough petitions/affidavits to warrant the kind of sanctions that would be ordered in a writ of mandamus (Newman v. L. A. City of Animal Regulation 1997). More significantly, though, the lawsuit prompted Hayden to hold public hearings about the Los Angeles shelters, providing some of the impetus for SB 1785.

Hayden enlisted Kislak’s aid in writing his shelter animal bill (P. Kislak, personal communication, November 17, 1999). She had spent four years volunteering and working at a large Miami shelter and as the director of a smaller shelter before attending veterinary school and going into private practice. To complement Kislak's experience and expertise, Bryant, who taught a course on animals and the law at UCLA, was asked to help write the bill.

Laying down the law

The intent of Hayden's sheltering bill was to change the philosophy of animal sheltering by shifting emphasis from rabies control and public protection to care and adoption for lost or unwanted animals. Proponents wanted to provide “a more fair opportunity for adoption and reunion of animals, rather than some of the previous arbitrary methods of choosing who will or won't live” (P. Kislak, personal communication, 1999). Many issues that were addressed in the mandamus proceedings and the public hearings became the focus of SB 1785. The bill mandated better, standardized record keeping. Standards of care for all shelter animals, including prompt and necessary veterinary care, exercise for dogs, and kind treatment, were also included in the bill to insure that animals would not be kept in shelters for several days with serious illnesses or injuries without receiving medical care (T. Bryant, personal communication, December 7, 1999).

The bill also focused on increasing the adoption and reunion rates by including mandates for holding animals first for owner redemption and then for adoption. The bill further mandated "lost and found efforts" as well as “user-friendly hours” suited to the working public, so that people looking for lost pets had ample time and opportunity to find them. The original bill also required that unadopted animals be turned overto a 501(c)(3) (IRS non-profit designation) animal welfare organization such as a rescue organization, if requested, prior to euthanasia. The intent of this part of the bill was to reduce the numbers of animals euthanized and to mandate a working relationship between shelters and rescue groups.

As the bill’s supporters perceived the situation, some shelter directors would “rather euthanize an animal out of spite than turn it over to a 501(c)(3)” (P. Kislak, personal communication, November 17, 1999). This may be because, in the eyes of a few shelters, rescue organizations implied by their name that shelters were terrible places and that animals had to be rescued from them, making them reluctant to release animals to "rescues." (K. Savesky, personal communication, October 6, 1999). It was also hoped that SB 1785 would to do more than mandate a certain type and quality of care for animals in the shelters. Its intent was also to change the mind set of many shelter staff who were perceived as desensitized to the killing and suffering they saw, entrenched in their ways and unwilling to change (P. Kislak, personal communication, November 17, 1999). Another important issue was spaying and neutering of all companion animals; however, as there was already a bill before the legislature (AB 1856) addressing the matter, SB 1785 did not (Bryant, 2000).

Hayden was particularly concerned that shelters were overly insulated from having to comply with the law (T. Bryant, personal communication, December 7, 1999). Those who drafted the bill felt that the legal consequences for not complying with the law were never sufficient to instill in the Los Angeles Department of Animal Regulation, or any such department, sufficient concern to improve the efficiency and practices of the shelter. In the proposed legislation, legal damages for violating the anti-cruelty laws included fines and the possibility for owners to sue for emotional damages, “damages for the loss of a companion animal” (California Senate 1998d, to give the public “strength in their voices and in their values to force the shelters to comply with the law.” (T. Bryant, personal communication, December 7, 1999)

While the provisions of SB 1785 were largely a reaction to the problems of a single city’s shelters, Kislak and Bryant did do some research to assess the condition of shelters across the state. Before writing SB 1785, they conducted a survey of 33 shelters around California in a wide variety of jurisdictions.4 . Bryant summarized their survey as a sampling of 10% of California’s roughly 400 shelters in which they purposely selected shelters from urban and rural settings, private and publicly funded shelters, and facilities from every region of the state to assess animal demographics, practices and costs (T. Bryant, personal communication, December 7, 1999). They concluded that in a very large proportion of public and private shelters, there was very little sense of fiscal responsibility (Bryant, 2000). Bryant expressed her desire to see shelters implement spay/neuter programs, involve trainers, breeders and veterinarians in shelter operations, and engage the public in information programs as alternatives to the emotional and financial costs of euthanasia. In her words: “You start doing things to try to address this huge cost let alone the sadness of taking so many animals’ lives.” (T. Bryant, personal communication, December 7, 1999) By encouraging prevention programs, Hayden and his supporters hoped that the bill would facilitate more vibrant volunteerism, as in places such as San Francisco or San Diego, where “people thought that they were associated with a life saving agency instead of a street cleaning or disposal agency” (T. Bryant, personal communication, December 7, 1999).

The data gathered in the survey about the costs of holding animals and euthanizing them were also used to devise financial scenarios. These models showed that the costs of the longer holding periods proposed in the bill would be completely offset, and that there would be a monetary gain for shelters, by increasing the owner reunion rate by 1% and the adoption rate by 2%. It is explained as a double effect- when an animal is adopted out and an adoption fee is charged, or when a pet is reunited with a family and there is a fee for maintaining the animal, the cost of euthanasia is eliminated and shelters recover some of the maintenance costs, which makes available more money for prevention programs (Bryant, 2000).

There has been considerable resentment on the part of shelters because of the global generalizations about shelters made by the provisions of SB 1785, and its proponents. Many people with years of experience in animal sheltering acknowledge that there are a few scattered shelters with truly substandard conditions, and every person interviewed for this paper could think of a least a few places where even the basic needs of animals - food, water, proper housing - were less than adequate. Overwhelmingly, they also pointed out that shelters are making improvements every year, and that there were many wonderful facilities with numerous proactive programs in place.

The Legislative History of SB 17855

“Nobody Thought it Would Pass”

In its entirety, the Hayden bill is ten pages long and contains numerous mandates and policy statements. The considerable number of regulations and their massive costs led many in the sheltering community to believe that the bill would not be passed. One former California shelter director hypothesized that since prior, less restrictive animal protection bills had faired poorly in the state Legislature, many shelters likely presumed that a bill as encompassing as SB 1785 certainly would not pass (K. Savesky, personal communication, Oct. 6, 1999).6 And finally, many people believed that Governor Wilson would not sign another animal protection bill, especially one that carried with it such immense costs. As a result, shelters assembled very little active opposition to the bill and contributed very little to it. It was also reported that many legislators voted for SB 1785 as a way of showing their concern for animal welfare issues, believing that the Governor would not sign it because of the numerous requirements and new liabilities it contained (Anonymous)7. A handful of state and national humane organizations were involved with the bill from its introduction, including the California Animal Control Directors Association, The State Humane Association, the Humane Society of the United States, and the Fund for Animals. These groups initially supported the bill, although several opposed it by the time of the last vote in the Senate. The League of California Cities and the California State Association of Counties opposed the bill up until last minute negotiations with the governor’s office.

The primary reason given for why many shelters thought SB 1785 would not pass were the financial implications of the bill. The massive costs many predicted this bill would impose on local governments and private shelters made it seem more than likely that the bill would not be passed. Many also believed that the numerous requirements set forth in the bill would hinder, if not halt its progress in the legislature.

Some groups opposed SB 1785 from its introduction because of the dramatic increase in operating costs they predicted this bill would bring for the shelters and the cities. Opponents included the California Animal Control Director’s Association, the California Agricultural Commissioners and Sealers Association, the City of Los Angeles and the City of Moreno Valley.

However, not all in the animal protection community opposed the bill. Both the Marin County Humane Society and the San Francisco SPCA supported the Hayden law. According to Rick Johnson (personal communication, October 27, 1999) at the Marin Shelter, their shelter thought “it was time that something be passed statewide that required shelters to meet a certain standard.” For both of these agencies, the provisions of SB 1785 did not threaten to change much about the daily operations of their shelters. AVAR also supported the bill. The end result was that many shelters were either unaware of the bill because the groups that informed them about shelter related legislation were not concerned about it being passed, or knew about it and were, at least initially, not concerned about it and paid very little attention to it.

Taking Sides

From all accounts, there was very little collaboration between the proponents and opponents of SB 1785 while the bill was in the legislature. Although there were meetings between the different groups lobbying for and against the Hayden bill, several people interviewed for this report characterized them as having very little constructive discussion and a lot of mistrust. The reasons for this are many, and different people will give different reasons for the lack of cooperation. Opponents of the bill characterized its supporters as difficult to work with and unwilling to consider proposed amendments. During an interview, one lobbyist against the bill explained “We don't enjoy having to euthanize animals. The proponents think we want to be able to line up little animals and shoot them.” On the other hand, supporters charged that the opposition was blatantly contemptuous of the bill and unwilling to collaborate on it. A proponent of the bill stated that “If they had worked with us, we might have had a much better law. It was a slammed door at every turn.”8

Many factors may have contributed to shelters’ overall lack of participation in the legislation. The initial versions of SB 1785 included negative statements about animal shelter personnel. For example, the bill, as it was introduced in the legislature, lists “ every person, including, but not limited to, every employee of a public pound, shelter operated by a society for the prevention of cruelty to animals, or humane shelters,...” suggesting that shelter personnel needed to be specifically enumerated as possible offenders of the anti-cruelty codes (California, Senate 1998d, §14). Additionally, the findings and declarations of the legislature, added when the bill was amended for the first time, stated that the intent of the bill was to “shift the focus of shelters from killing to owner redemption and adoption...” (California Senate, 1998c).

Shelter workers believed that they were doing the best they could and resented the implication that they could be doing better (K. Savesky, personal communication, October 6, 1999; T. Hedgpeth, personal communication, October 15, 1999; P. Kislak, personal communication, November 17, 1999). Reportedly, there was also considerable discontent in the sheltering community that none of the national and state-wide animal welfare organizations, nor any individual shelters were invited to comment on the bill before its introduction (G. Simmons, personal communication, December 8, 1999).

Overall, opponents and proponents have indicated their dismay over the lack of collaboration and the considerable animosity surrounding SB 1785. Looking back, many cities and shelters are saying that they regret not having played a more active part (G. Simmons, personal communication, November 9, 1999).

The Hayden law proposed many changes in the laws governing shelters and individuals who care for abandoned or stray animals, making the involuntary deposit of animals different from the that of other property charges (California Senate, 1998d). The new provisions laid out a longer, 5-day holding period, a release-to-rescue-group requirement, mandatory lost and found efforts, various animal care and housing provisions, record keeping requirements, and changes to the anti-cruelty provisions of the penal code.

Opponents were very much concerned about the increase in operating costs that would come from the extension of the 72 hour holding period to six days, as the bill specified after being amended in the Senate Judiciary committee. The opposition argued that, in order to meet this provision, most shelters would be forced to expand their facilities and hire additional staff, especially since the six-business-day requirement would necessitate the holding of animals for a minimum of up to eight days, given that weekends are not considered business days (California, Assembly, 1998). The proponents of the bill argued that the additional holding periods gave owners a longer period to find lost pets and increased the chances for adoption of all animals. The Association of Veterinarians for Animal Rights further argued that the longer holding periods would shift the focus of animal control facilities from capturing and killing to more responsible care and increased adoptions (California Assembly).

Another very hotly contested issue centered on the provisions providing for the release of all unadopted animals to rescue groups without charge. Shelter advocates feared that allowing rescue groups access to any animal in the shelter would cause a “cherry picking” effect, whereby the most adoptable animals would be taken by the rescue organizations, leaving fewer attractive animals to entice future adopters to the shelters and decreasing shelter revenues (California Senate, 1998b). Shelters were concerned that they were not being given any means to insure that rescue organizations had the facilities and staffing to care for the animals going to them, or that rescue groups had the same screening procedures for their adopters (State Humane Association and California Animal Control Directors Association, 1999). Shelters also felt they had little assurance that those providing substandard care would be identified and reported. Hayden’s office saw these provisions as an important means for placing animals, and did not want to restrict a rescue organization’s access (T. Bryant, personal communication, December 7, 1999). Supporters also saw rescue organizations as a means of increasing the adoption rates. However, some have pointed out that rescue groups are plentiful in California, and many have excellent relationships with shelters. These groups were actively taking animals that could not be adopted from shelters prior to the passage of the Hayden law. Many shelters felt that it would be unlikely that these groups would provide a significant number of new homes (Morrison, 1999).

Another area of considerable concern, especially from the representatives of the cities and counties, was the possibility of increased legal liability for animal shelters (Y. Hunter, personal communication, December 7, 1999). As originally proposed, SB 1785 made all shelters liable for civil damages for failure to comply with the existing anti-cruelty laws, and with the bill’s provisions regarding euthanizing animals and record keeping. Though shelters were liable for failures to abide by existing anti-cruelty laws, the additional proposed liabilities were new. Opponents of the bill asserted that the passage of this bill in its earlier form could result in civil suits being filed against shelters not able to place all of their adoptable and treatable animals, exposing them to additional liability and unknown financial risks (California Senate, 1998b).

Opponents also argued against the requirement that shelters keep animals other than dogs and cats. Such a requirement necessitated that shelters house animals they were currently incapable of accommodating. There was also concern about the requirements that animal control agencies to conduct pre-seizure hearings when removing an animal from an abusive or neglectful situation. The proponents stated that the California Court of Appeals held that Section 597(f) of the Penal Code violated the “due process” clause of the United States Constitution because the statute failed to require such post-seizure hearings (California Senate, 1998b)). Some were concerned about the additional work these requirements would entail. Finally, the opponents also contended that shelters did maintain adequate records of impounded animals, and that the bill's requirements were not necessary (California Senate). Nonetheless, other studies support the notion that record keeping in many shelters is inadequate (Wenstrup & Dowidchuk, 1999).

The HSUS proposed several amendments to the bill, including a phase-in period and funding for the bill, a screening process for breed rescue organizations, and shorter holding periods with the provision that people relinquishing animals to a shelter had to provide identification (G. Simmons, personal communication, November 9, 1999). The latter amendment was proposed to address the concern Senator Hayden and his supporters had about people other than the owners (disgruntled neighbors, ex- spouses, boyfriends) turning in other people’s pets as a way of dealing with pet or personal problems ( G. Simmons, personal communication, November 9, 1999; P. Kislak, personal communication, November 17, 1999). The Fund for Animals also proposed amendments when the bill was first introduced, including a shorter holding period for owner-relinquished pets and a change in the proposed revisions to the anti-cruelty sections so that they would not single out animal control officers and other shelter personnel as possible offenders. In exchange for including these amendments, the Fund for Animals supported the bill (V. Handley, personal communication, January 13,. 2000).

SB 1785 virtually sailed through the California legislature, with significant changes being made in two places—the Assembly Judiciary Committee and in the Senate just prior to the final vote after it was amended and passed by the Assembly. The Assembly amendments included removing the $20,000 penalty for violation of certain provisions of the bill, clarifying the language of some of the liability sections, and enabling shelters to charge adoption fees for cats as well as dogs. The Assembly also changed the release to rescue provisions, allowing shelters to charge their standard adoption fees and requiring that shelters make available to rescue groups only animals scheduled for euthanasia.

These amendments addressed some of the concerns opponents had, although from their perspective, the changes were not enough (G. Simmons, personal communication, November 9, 1999; Y. Hunter, personal communication, December 7, 1999). There was still concern over the length of the holding periods and the liability the proposed legislation set forth for municipalities. A compromise was reached and the bill was changed so that the specific duties of shelters were not enumerated, the liability sections of the bill were deleted, and the holding periods were amended so that shelters that met certain criteria would have shorter required holding periods. With these amendments made, the League of Cities and the County Association changed their opposing stance to neutral, and Governor Wilson signed the bill on 22 September 1998.

What is most notable about this bill, especially given the huge outcry about it once it had been passed, is the lack of collaboration on it. Because the lines were drawn and the rhetoric was so strong, the opponents and proponents were unable to work out a more mutually acceptable piece of legislation. Both proponents and opponents agree that each side should have been more involved in crafting this bill so that it would be as effective and well put together as possible. Yet, supporters and opponents both cite an unwillingness by the other to negotiate as the main reason for the lack of collaboration. As one member of the sheltering community put it, “we are all guilty for it.”

Alquist’s Relief Bill

By the time the expanded holding period provisions of SB 1785 took effect on July 1, 1999, the effects of it had already started to become apparent. For some facilities, the new requirements brought little change to their daily operations. For other communities, however, the Hayden law prompted dramatic changes, not all of them positive. About six months before the holding period provisions of the law were to take effect, several cities reported that the shelters that contracted with them for animal control were canceling or threatening to cancel their contracts because they could not comply with the new laws (Y. Hunter, personal communication, December 7, 1999). Other communities reported extreme overcrowding and severe financial strain. In response, Assemblywoman Elaine Alquist proposed an urgency relief measure, Assembly Bill 1482 (Chapter 81, Statutes of 1999 (AB 1482),on February 26, 1999. The bill was designed to give shelters with public contracts additional time either to expand their existing facilities or to build new ones by pushing back the implementation date of the longer holding periods mandated by SB 1785.

The animal protection community was divided in support for the Alquist bill, although individual shelters and local governments overwhelmingly supported it (Y. Hunter, personal communication, December 7, 1999). The bill gave a public agency that contracted with another public or private shelter, either as a provider or recipient of animal sheltering services, the possibility to delay implementation of the holding period provisions of SB 1785 for one year (California Assembly, 1999a). In order to be eligible for the delay, public hearings had to be held and the finding made that the contracting shelter, in conjunction with other facilities in the county, reasonably would not be able to comply with the longer holding periods mandated under SB 1785. The shelter then had to submit a plan to meet the requirements of SB 1785, including sources of funding and sources of new or improved facilities that would allow the county to comply (California Assembly, 1999a).

Many of the supporters of SB 1785 opposed Alquist’s bill, accusing those who supported it of trying to repeal SB 1785 with the suggestion that shelters would rather maintain the status quo than see improvements in the lives of shelter animals.9 Supporters of the relief bill, including many cities, the California Veterinary Medical Association, the State Humane Association, and several animal protection organizations, argued that they only sought to make compliance with the holding provisions of SB 1785 possible for all shelters by giving those that that were not immediately able to comply time to prepare (California Assembly, 1999b). Despite vocal opposition, the relief bill did pass, and was signed into law on July 12 1999.

Life Under the Law

The range of opinions about the Hayden law runs from praise to disgust. The California sheltering community is united in its agreement with the overall goal to end the euthanasia of “adoptable” and “treatable” animals by the year 2010. Disagreement arises, however, over the suitability of the Hayden law to implement this policy. For some shelters, the passage of SB 1785 brought little change in their daily operations and comes as wanted and needed regulation of that state’s shelters. For others, this bill represents an overwhelming challenge; overburdened with large numbers of animals and relatively small budgets, many shelters are having a difficult time complying with the new law.

The Challenges of Implementation

Successful implementation of the bill has involved many interrelated challenges. The Hayden law mandated several simultaneous changes in shelter operations, not all of which shelters have understood. Some shelters also lacked the immediate funds to be able to comply with the longer holding periods, even if the increase in adoptions and reunions the authors predict eventually offset the increased costs from the bill.

The vague language of SB 1785 has been one of the most problematic and confusing parts of the new law. For example, the law now requires that shelters provide animals with “necessary and prompt veterinary care,” but it does not specifically define that standard of care (C.C. §1834). The new law also requires that “shelter personnel qualified to verify the temperament” of an apparently feral cat should determine if the animal is truly feral (Fd & Ag Code §31752.5). The principle problem with the vague language is that there is not a regulatory agency that oversees animal shelters, and so there is no rule-making process in place to define the terminology. Although the intent of the intentionally vague language to allow each organization to come up with its own definitions according to its resources (T. Bryant, personal communication, December 7, 1999), organizations such as The American Humane Association and the California Veterinary Medical Association have been holding meetings and workshops trying to discern what the language means and how to implement it so that it is equally suited to all California shelters (American Humane Association, 1999).

One of the goals of these meetings was to develop a set of definitions that could be used if shelters were sued for a violation of the new laws. These guidelines would provide shelters a way of showing that they were doing their best to comply (T. Hedgpeth, personal communication, October 15, 1999). Many in the sheltering community remain concerned that the only definitions that are going to come will be made in a court of law (R. Johnson, personal communication, October 27, 1999; T. Hedgpeth, personal communication, October 15, 1999; G. Simmons, personal communication, November 9, 1999).

Mandating a level of animal care without defining it also leaves shelters with a legal liability without an adequate standard. According to the proponents of SB 1785, the meaning of “reasonable” in veterinary medical terms depends on the type of animal and the standard of care in a particular region of the state. Given that dimension of the meaning, and the vast differences in the resources of different shelters, Senator Hayden did not feel that it was appropriate to micro-manage (T. Bryant, personal communication, December 7, 1999). “Reasonable” also has a legal meaning–the level of care an objective outsider would think was reasonable when informed of all of the options available in any given situation constitutes “reasonable care”. It depends on several factors, including finances and staffing. According to Bryant, the law gives shelters the room to say that it is not reasonable to give an animal a type of very expensive treatment when they have a very small budget (T. Bryant, personal communication, December 7,1999) In shelters where a treatable animal is not likely to be adopted, treating an animal that is very likely to be euthanized also raises questions about the ethics of putting that animal through a potentially painful procedure, only to euthanize her five days later.

The concern has also been raised that SB 1785 poses the threat of establishing a double standard for shelter animals. In setting out state policy, the Hayden law mirrors the San Francisco Adoption Pact, segregating shelter animals into three categories, “adoptable,” “treatable,” and those that are, by default, unrehabilitatible (CC §1834.4; Food & Agricultural Code §17005). While most people agree on what animals are adoptable, there is significant variation in where shelters draw the line between treatable and unadoptable. Given the right circumstances, border-line animals can be placed. Some feel that now shelters will now stop thinking in terms of helping these animals because the idea of the unadoptable animal has now been institutionalized.

The longer holding periods mandated by SB 1785 have also affected what animals are considered adoptable. Severe overcrowding has been the most visible problem resulting from the passage of this bill, especially in larger cities. Cage space is at a premium because all animals who are not suffering from irremedial injury or illness, including those who are too aggressive or wild to be adopted, have to be held for three, four or six days—depending on the type of animal and the specific shelter—before they can be deemed untreatable and euthanized (Food. & Agricultural Code §§31108, 31752, 31752.2).

According to several accounts, animals that might have had a chance of being adopted with sufficient amount of time are being euthanized to make room for incoming animals.10 Like several other California cities, Los Angeles has a major problem with aggressive pit bulls. There are scores of aggressive, unowned dogs on the streets that pose a problem so severe it has been characterized as a crisis by the city council (City of Los Angeles, 1998). Now, when they are picked up, shelters hold them for the minimum of three days before they can be deemed untreatable. Since they are aggressive, they cannot be housed together and thus they take up a significant amount of cage space that could be used for adoptable animals. The Hayden law did not make adequate provisions for dealing with animals who are clearly unadoptable but who do not fall under the irremedial suffering or injury clause.

Another common critique of the holding periods is that they cause suffering for animals such as the maladjusted, frightened pet or the fearful feral animals that have to be held for at least three days but will never be considered adoptable (Morrison, 1999). Not only does having to hold those animals mean using cage space that another, adoptable animal could have occupied, it also means placing the animal in a very stressful situation only to be euthanized later.

The proponents of SB 1785 are dismayed by the debates about holding the less adoptable animals. They point out that the old scruffy dog or the sick cat that comes into a shelter may not be placeable in a new home, but could be somebody’s beloved pet (Bryant, 2000). One of the goals of this legislation was to give these animals a better chance at being reunited with their families. The first step is to hold them long enough so that their families can find them. Since an animal's origin is not always clear, holding all animals who are not irremediably suffering gives them all a fair chance at being reclaimed by their owners or adopted (Bryant). Bryant also points out that California holding periods prior to the law were among the shortest in the country. In a large city, a 72 hour holding period from the time of capture makes it very difficult for owners to find their pets, especially where there are several shelters. It is speculative to say if, over the long term, the mandated holding periods will achieve the authors’ goal of increasing the number of reclaimed animals. Many feel that there will be little change other than increases in operating expenses because most reclaimed animals are reunited with their owners within the first three days of impoundment.

Another issue that many shelter directors have pointed out is that the bill does not address the population aspect of health care delivery in a shelter. Thus, when an animal with a contagious but treatable illness comes into a shelter, the animal still has to be held just as long as the healthy animal, putting the entire shelter population at risk. In shelters where cage space is at a premium, this poses a significant problem, since the animals will be housed together if there is not sufficient space to quarantine them safely. Preliminary results from The Fund for Animal’s December 1999 survey of California shelters suggests that this is has been a serious problem in some shelters since the implementation of the holding period provisions. Housing quarantined animals with different species has been suggested, since most common shelter diseases do not spread across species lines (P. Kislak, personal communication, November 17, 1999); however, the added environmental stressors for cats housed in a dog kennel, for example, may make this a very unattractive option.

The new record keeping requirements for all animals impounded by public and private shelters have also been a somewhat controversial aspect of the law as well. Shelters worry that, with publicly accessible records, there is a risk that people who adopt another’s unwanted pet subsequently may have their privacy invaded if the former owner has a change of heart (T. Hedgpeth, personal communication, October 15, 1999). Also, the requirement that every procedure (including intake, vaccinating, health exams, and euthanasia) has to be documented may prove to be logistically difficult. Dr. Bryant responded that there was a pre-existing duty to keep records as holders of others’ property under existing state laws, and that SB 1785 merely placed a list of records in the Food and Agricultural Code (§32003) where it is easy to find (Bryant, 2000).

The biggest problem for most shelters, especially large, urban ones, is financial resources, which are not provided by SB 1785. Contrary to the intent of the bill, shelters worry that with the longer holding periods, less money will be available to fund proactive measures such as humane education and pet owner support programs. There is no guarantee that the passage of this bill will increase the number of adoptions to provide shelters further funding for the new mandates, especially in communities where rescue organizations have had well established, working relationships with shelters prior to the bill’s enactment.

There is some hope that the Commission on State Mandates will fund some of the needed changes. Under California Law, any state mandated program that created or expanded the duties of a local government has to be funded by the state (Government Code §17525 et seq.). In order to recover funding for state mandated programs, such as SB 1785, a locality must file a test claim to the California Commission on State Mandates to see whether or not the new programs fits within the definition that the state provides of a true state mandate. The County of Los Angeles has filed a test claim, although the process could take between two and three years. It is very unclear whether or not shelters will get relief from the state, and in the interim, they must seek funding elsewhere.

“Imagine What Could Happen”

Imagine what could happen to animal sheltering with increased public awareness about shelters and the jobs they do, the ability to ask for more funding to do even more for the animals, minimum standards for all animals, guaranteed help for owners of lost animals, and more collaboration between shelters to find creative solutions. In all of the confusion and debate surrounding the Hayden law, the possibilities it presents are frequently forgotten.

In the same newspaper stories in which shelter directors discuss their critical underfunding and their shelter’s difficulty in complying with the law have been statements welcoming the flood of media coverage. Indeed, the plethora of news articles, radio shows and television coverage has brought considerable, needed attention to a system that is often neglected by the public. Under public scrutiny and legal mandate, cities will be much more receptive to the recognition to the added costs that are incurred by humanely taking care of animals (R. Johnson, personal communication, October 27, 1999). Newspapers and animal protection organizations have reported that several shelters have received budgetary increases in response to the new laws. And perhaps the added scrutiny will result in the public and the legislature understanding the dilemmas shelters face and being more supportive of them.

Probably the most positive outcome of this law is that it has caused public and private shelters, along with state and national humane organizations, to come together to share and invent creative, new solutions to long standing problems such as disease outbreak, standards of care, euthanasia issues, and financial issues. SB 1785 forced many shelters to look for new ways of solving their problems. One of the lessons learned in examining SB 1785 and its aftermath is that effective animal sheltering is a community effort that requires creativity, collaboration and interagency involvement. To be successful, shelters must work with veterinarians, rescue groups, animal trainers, and the community. As this case study details, a legislative initiative cannot mandate that kind of collaboration, although it can provide a stimulus for it.

On the Horizon

There have been several reports of a petition initiative in Oregon and legislation in Pennsylvania that models the Hayden bill. In discussing the possibility of other state’s following California’s example with this law, several suggestions have been made about ways to improve it so that it is more clear, more comprehensible, and more easily implemented. Providing funding for implementation of the bill has been preeminent among the suggestions encountered. Clearer definitions of terminology such as “reasonable care,” “treat humanely,” “adoptable,” and “treatable” have also been suggested as have a longer timetable for implementation.

Most important, however, is the recognized need for legislation that addresses the multiple reasons for the overpopulation problem and the community dynamics that support it. Many people contacted for this report have questioned whether the provisions of SB 1785, which deal mainly with holding animals in shelters and increasing adoptions, will make a significant difference in the homeless animal problem. Shelter overcrowding and euthanasia are symptoms of a larger, more complicated animal overpopulation problem than the Hayden law addresses.

At the conclusion of the Reasonable Practices Forum report published by the American Humane Association (1999) is the suggestion for a city plan model of companion animal population control. It is modeled after other successful approached to community problems. In this type of model, each city devises a plan that specifically addresses its problems and focuses on its particular community dynamics (American Humane Association). Cities would be given a goal, say to reduce the numbers of adoptable animals euthanized in shelters each year, and each would be responsible for developing a plan that included not only the shelters, but the public, breeders, and the rest of the community. Projects based on community centered models have been very successful, and with community collaboration and a united effort, so could be the pet overpopulation effort.

References

American Humane Association. (1999). Reasonable practices forum: A report defining reasonable practices based on California Senate bill 1785. Englewood, CO: Author..

Bryant, Taimie. (2000). Loss of face: California’s 1998 legislation to address homelessness among companion animals. Unpublished report for the Duffield Foundation.

California Assembly. (1999a). Stray Animals: Impounding Requirements: Operative Date. AB 1482. Chapter 81, Statutes of 1999. July 12.

California Assembly. Assembly Committee on Local Government. (1999b). Hearing on proposed AB 1482. April 28. Videocassette: Author

California Assembly, Assembly Committee on Judiciary. (1998). Analysis of SB 1785. Analysis prepared by Dan Pone. June 23.

California Senate. (1998a,). Stray Animals: Duties of Pounds and Shelters. SB1785. Chapter 752. September 22.

California Senate. Senate Rules Committee. (1998b). Senate Floor Analysis of SB 1785. August. 27

California Senate. (1998c,). Stray Animals: Duties of Pounds and Shelters. SB1785. As amended April14.< ="http://www.leginfo.ca.gov/pub/97-98" MACROBUTTON HtmlResAnchor http://www.leginfo.ca.gov/pub/97-98>

California Senate. (1998d). Stray Animals: Duties of Pounds and Shelters. SB1785. As introduced on February18.

City of Los Angeles. (1998, December 18). City Council, Animal Health Services. Prepared by Goldberg and Mover. Filed on June 25, 1999. Doc. Id. 98-2385 Accessed on November 19, 1919.

Handley, V. (1999). Legislative Survey. San Francisco: The Fund for Animals.

Newman et. al. v. The L. A. City Department of Animal Regulation. 1997. Superior Court of California, County of Los Angeles. Case No. BS0460777.

State Humane Association and California Animal Control Directors Association. (1999, February 4). Analysis of SB 1785 Seminar (Two Videocassettes).Pasadena, CA. Author.

Wenstrup, John and Alexis Dowidchuk. (1999). Pet Overpopulation: Measurement Issues in Shelters.” Journal of Applied Animal Welfare Science, 2 (4), 303-319.

Notes

1 Correspondence should be sent to the author at the Center for Animals and Public Policy, 200 Westboro Road, N. Grafton, MA 01536. This article originally appeared as a legislative case study titled “Legislating Shelter Animal Welfare” as part of the requirements for the degree, Master of Science in Animals and Public Policy. For helpful comments and revisions, the author wishes to thank Dr. Gary Patronek.

2 Correspondence should be sent to Sarah A. Balcom at the Center for Animals and Public Policy, 200 Westboro Road, N. Grafton, MA 01536. This article originally appeared as a legislative case study titled “Legislating Shelter Animal Welfare” as part of the requirements for the degree, Master of Science in Animals and Public Policy. For helpful comments and revisions, the author wishes to thank Dr. Gary Patronek.

3 For a good overview of the issues and arguments surrounding shelter euthanasia, see the Sept.-Oct. 1997 issue of the HSUS’s Animal Sheltering magazine.

4 The survey was not in a publishable format at the time this paper was being written and was unavailable for review.

5 A copy of the bill and committee analyses can be found at ="http://www.leginfo.ca.gov/pub/97-98" MACROBUTTON HtmlResAnchor http://www.leginfo.ca.gov/pub/97-98 under “SB 1785.”

6 The animal protection community is frequently divided on how to best care for animals, which has led to heated controversies about prior animal related legislation in California. Take, for example, the 1990 proposed breeding ban introduced to the San Mateo City Council by Peninsula Humane Society or the 1997 Feral Cat Bill in the Assembly (AB 302).

7 Reported by a lobbyist against the bill.

8 The previous two quotes were given under condition of anonymity.

9 Two supporters of Alquist’s bill who had opposed SB 1785 reported this criticism. See also the Assembly committee hearings on this bill.

10 Representatives of several humane organizations and multiple newspapers from these cities have reported that this is a problem. See, for example, “Stray animal law put on hold: County shelter in space crunch” The Sacramento Bee, 28 July 1999; “A Bill That Strayed,” The Los Angeles Times, 22 June 1999. A December 1999 survey conducted by the Fund For Animals also suggests that overcrowding has been a major problem. On the other hand, there are places that have not been significantly affected, such as Marin Humane Society and the San Francisco SPCA.

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