BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2009-2010 Regular Session SB 1417 (Cox) As Amended March 24, 2010 Hearing Date: April 20, 2010 Fiscal: Yes Urgency: No KB/GW:jd SUBJECT Corporations for Prevention of Cruelty to Animals DESCRIPTION This bill, sponsored by the Placer County Board of Supervisors, the State Humane Association of California, and the California State Sheriffs Association, would implement new procedures and requirements for the appointment, and subsequent training, of humane officers by non-profit organizations formed for the purpose of preventing cruelty to animals. (This analysis reflects author's amendments to be offered in committee.) BACKGROUND Humane societies and Societies for the Prevention of Cruelty to Animals (SPCA) are non-profit organizations that work to enforce the state's animal welfare laws through the appointment of humane officers. A humane officer's scope of power can vary, depending on the level of training and animal welfare education, but can include the ability to exercise the powers of a peace officer in order to prevent animal cruelty, make arrests, serve search warrants, and carry firearms. There are approximately seventy-five humane officers in the state. Current law prescribes a process by which humane societies may be incorporated and appoint humane officers. This bill would revise current law and implement new procedures and requirements for the appointment and training of humane officers. CHANGES TO EXISTING LAW (more) SB 1417 (Cox) Page 2 of ? 1. Existing law authorizes corporations for the prevention of cruelty to children or animals, or both, to be formed under the Nonprofit Public Benefit Corporation Law. The articles of incorporation for these corporations must be endorsed, as evidence of necessity, by the Department of Justice or by a judge of the superior court of the county in which the society's principal office is located. (Corp. Code Sec. 10401.) This bill would eliminate the option of endorsement by the Department of Justice and would require the society's articles of incorporation to be endorsed by a judge. This bill would create a formal judicial proceeding for the endorsement of articles of incorporation designated as a special proceeding. This bill would require humane societies to serve a copy of the application for endorsement to the State Humane Association of California, the Department of Justice, California Highway Patrol and city police departments, the sheriff's department having jurisdiction in the county in which the society is located, and on the animal control agencies in that county. This bill would authorize those parties to file opposition to the application and for the filer to reply, as specified. Both the application and opposition would be required to contain evidence to enable the court to make a decision regarding the need for the corporation. This bill would require that a society's articles of incorporation be endorsed for at least five years before a humane society may submit an application for endorsement. However, this would not apply to humane societies incorporated before January 1, 2011. This bill would also require that the society have been operating an animal shelter for at least three years or have a written agreement with another entity such as a public animal control shelter or licensed veterinary clinic, that provides for the humane care and treatment of any animals seized and the preservation of evidence. This bill would require that the society have been in compliance with all applicable federal, state, and local laws SB 1417 (Cox) Page 3 of ? for at least five years. 2. Existing law requires a city, county, or city and county, to pay up to $500 per month to a society actively engaged in enforcing state laws for the prevention of cruelty to animals or children. (Corp. Code Sec. 14501.) This bill would instead authorize local governments to enter into contracts with humane societies for the enforcement of laws for the prevention of cruelty to animals, and would also permit these societies to enforce these laws without a contract. This bill would delete obsolete references to pertaining to humane societies formed for the prevention of cruelty to children. 3. Existing law provides that only a society for the prevention of cruelty to animals is eligible to apply for an appointment of any individual to a level 1 or level 2 humane officer. The duty of a humane officer is to enforce the laws for the prevention of cruelty to animals. (Corp. Code Sec.14502(a)(1)(A).) Existing law requires that any corporation that has been formed for the purpose of the prevention of cruelty to animals and has insurance of at least $1 million for liability for bodily injury or property damage may appoint any amount of persons as humane officers, as long as those individuals are California citizens and the training guidelines have been met. Appointment by the corporation may only be done after the corporation has been incorporated for 6 months, upon resolution by its board of directors or trustees, and entered into its minutes. (Corp. Code Secs. 14502(a)(2), 14502(a)(3).) Existing law requires that the humane society or society for the prevention of cruelty to animals that proposes to appoint a humane officer to submit an application for appointment to a judge of the superior court for the county in which the society is located, and must provide documentation demonstrating that the individual has completed specified training requirements. Upon receipt of a report from the Department of Justice of the appointee's record, if any, existing law requires the judge to review the appointee's qualifications and fitness to act as a humane officer and SB 1417 (Cox) Page 4 of ? either confirm or deny the appointment. (Corp. Code Secs. 14502(a)(1)(B), 14502(i).) Existing law requires that before a humane society or society for the prevention of cruelty to animals appoints a humane officer, the society must notify the sheriff of the county in which the society is incorporated of the society's intent to enforce laws pertaining to the prevention of cruelty to animals. (Corp. Code Sec. 14502(n).) Existing law provides that a corporation which has appointed an officer may revoke that appointment at any time upon filing with the county's clerk office in which the appointment of the officer is recorded. Additionally, an authorized sheriff, local police agency, or the State Humane Association of California may initiate a revocation hearing by petition. (Corp. Code Sec. 14502(g).) Existing law provides that all appointments of humane officers automatically expire within three years from the date a copy of the court order certifying his or her appointment was filed with the county clerk. Officers whose appointments are about to expire may only be reappointed after completing the continuing education and training. (Corp. Code Sec. 14502(f).) This bill would further require a society seeking reaffirmation of an appointment of a humane officer to serve a copy of the application on the parties that the society would be required to serve with a copy of its application for endorsement, and would provide comparable rights and procedures for those parties to object in court. This bill would require the judge, in determining whether to confirm the appointment, to consider any documentation submitted to the judge in support of, or opposition to, the proposed appointment. This bill would require a party petitioning for a revocation of the appointment of a humane officer to serve copies on the State Humane Association of California, the Department of Justice, and each law enforcement agency and animal control agency having jurisdiction in the county in which the society is located. SB 1417 (Cox) Page 5 of ? This bill would prescribe specific law and motion requirements for revocation hearings. 4.Existing law prescribes the powers and qualifications of level 1 and level 2 humane officers. Level 1 humane officers are authorized to carry firearms, subject to specified requirements, including background checks and mental and physical evaluations. (Corps. Code Sec. 14502.) This bill would require that all humane officers, both level 1 and level 2, to complete the background checks and physical and mental evaluations currently only required of level 1 officers. This bill would require that humane officers complete continuing education and training requirements during each three-year period following his or her appointment. Level 1 humane officers would additionally be required to complete weapons training and range qualifications every six months. All humane officers would be required to file certificates of compliance with the Department of Justice at the end of the three-year or six-month period. Failure to comply with the ongoing training requirements would result in revocation of the humane officer's appointment at the end of a three-year term. This bill would authorize the Department of Justice to charge a fee to cover the reasonable costs of maintaining the certificates of compliance. 5. Existing law requires the Department of Justice to maintain state summary criminal history information, as defined, and to provide that information to persons holding specified occupations including, without limitation, probation officers and parole officers. Existing law requires local criminal justice agencies to maintain similar information and provide that information to specified agencies and persons holding specified occupations. (Pen. Code Secs. 11105, 13300.) This bill would add humane officers to the specified persons to whom the Department of Justice and local criminal justice agencies are required to provide the criminal history information. COMMENT SB 1417 (Cox) Page 6 of ? 1. Stated need for the bill The author states: A Placer County non-profit corporation that never officially became a Humane Society attempted to appoint Humane Officers. The Sheriff was provided with inadequate notice of this organization's attempts, and consequently, had to resort to a petition to revoke these [appointments] under [Corporations Code] Section 14502(g)(2). The litigation took approximately two and a half years to resolve. During the course of the litigation, various deficiencies and ambiguities in the statutes became evident. Upon hearing that Placer County intended to sponsor legislation, the State Humane Association of California provided additional, more comprehensive amendments that would address various deficiencies and ambiguities it has become aware of in its official capacity. 2. New court procedure for endorsement of articles of incorporation Under current law, if the Department of Justice either fails to grant endorsement of the articles of incorporation, or withholds the endorsement for more than 90 days, a corporation formed for the purpose of preventing cruelty to animal may then apply to the judge of the superior court of the county where the principal office of the corporation is located. The superior court judge may, if he or she desires, endorse the articles after first giving due consideration to the necessity of the corporation and assuring that the incorporators are acting in good faith. (Corp. Code Secs. 10402, 14502(b).) Despite its statutory authority, the Department of Justice, apparently due to workload reasons, is no longer granting endorsements, leaving the courts to handle this task. However, because this endorsement process is an anomaly among judicial proceedings, some courts have been confused as to how they should be handled, and what evidence must be considered in granting the endorsement. As noted by the Judicial Council in support of this bill (as proposed to be amended): Over the years, the trial courts have occasionally contacted the Administrative Office of the Courts with questions about SB 1417 (Cox) Page 7 of ? the court's role in approving humane societies and the humane officers that they appoint. Current law does not provide courts with much guidance about how to handle applications for endorsement of humane societies or confirmation of humane officer appointments. For example, it does not indicate whether courts should open a case file or require formal pleadings in connection with such applications. The law is also ambiguous in its description of the judge's role. Current law does not identify the criteria to be applied in making these decisions. Nor does it expressly empower the court to obtain, or direct the appointing entity to supply, information that would support such a decision. SB 1417 was introduced to address these and other issues. This bill would remove the option of endorsement by the Department of Justice and would require the society's articles of incorporation to be endorsed by a judge. This change would reflect the current practice. This bill would also require a formal court proceeding for the endorsement of the society's articles of incorporation. The humane society would be required to file an application entitled "Petition for Order Endorsing Articles of Incorporation of a Corporation/Society for the Prevention of Cruelty to Animals," together with a proposed order. The petition would be required to include evidence regarding the need for a corporation. The society would be required to serve a copy of the petition on the local law enforcement agencies and animal control agencies in the county, and on the State Humane Association of California. These parties would have the opportunity to file an opposition to the endorsement, and the society the opportunity to file a response. The pleadings would be required to include evidence as to the need for the corporation. The court would rule on the application without a hearing, unless it notifies the parties of its intent to hold a hearing. The proceeding would be designated a special proceeding as defined in Code of Civil Procedure Section 23. Committee staff notes that these procedures and policies closely mirror those currently followed in Los Angeles County Superior Court pursuant to a Standing Order issued in February 2009 in order to address procedural deficiencies in current law. Los Angeles County currently has the state's most humane societies and officers. Aside from providing clarity to courts, this proceeding is also SB 1417 (Cox) Page 8 of ? intended to provide local law enforcement agencies with the opportunity to participate in the endorsement process and provide relevant information to the court. This arguably facilitates the early resolution of any concerns or problems pertaining to formation of the corporation. Social Compassion in Legislation, and other opponents to this bill, has expressed concerns that the notice requirements in this bill are overly broad, burdensome, vague, and generally promote an adversarial proceeding when humane societies are being incorporated. The author's amendments, as reflected in the mock-up, are intended to address some of these concerns in that they more specifically outline the court procedures for endorsement. While this bill does create a more comprehensive process that imposes more requirements on humane societies, it would also implement a uniform practice in courts statewide, which arguably better serves the public interest. 3. Court proceeding to reaffirm or revoke the appointment a humane officer Currently, humane societies submit an application for the appointment of a humane officer to the local superior court, and must provide certain documentation pertaining to the appointee's qualifications, training, and criminal history. The humane society must also submit proof of liability insurance of at least one million dollars. This bill would create more specific procedures that must be followed for the appointment of a humane officer. Specifically, the humane society would be required to file a "Petition for Order Confirming Appointment of a Humane Officer," along with the documentation already required by existing law. Prior to filing the petition, the humane society would be required to send a copy of its resolution and Live Scan report for the appointee to the Department of Justice for a criminal history check. The Department of Justice would be authorized to charge a fee not to exceed the reasonable cost of preparing the report. Upon receipt of the petition, the court would review the matter of the appointee's qualifications and fitness to act as a humane officer, taking into consideration all documentation it has received in either support or opposition of the appointment. If the court finds cause to confirm the appointment, it would state so in a court order. The appointee would then file the court SB 1417 (Cox) Page 9 of ? order with the county clerk and provide a copy to the State Humane Association of California and the Department of Justice. This bill would also require that a humane society seeking reaffirmation of an appointment of a humane officer must serve a copy of the application on the same agencies and association that it would be required to serve with a copy of its application for endorsement. These parties would have comparable rights and procedures to object to the reaffirmation as in the endorsement process. Finally, this bill would also prescribe formal notice, and law and motion requirements for a hearing to revoke an appointment to a humane officer. The hearing would be designated as a Special Proceeding as defined in Code of Civil Procedure Section 23. Upon a finding of good cause, the court would be required to issue an order granting the petition to revoke the appointment, which would then be entered with the county clerk. These provisions are intended to provide more guidance to the courts in affirming appointment of humane officers and create a process that facilitates involvement of local law enforcement agencies. This would arguably reduce the need for revocations of appointments at a later date. Committee staff notes that these procedures closely mirror those currently followed by the Los Angeles County Superior Court pursuant to a Standing Order issued in February 2009 in order to address procedural deficiencies in current law. 4. Contracts with local governments Current law requires a city or county to pay up to $500 per month to a society actively engaged in enforcing state laws for the prevention of cruelty to animals or children. This bill would instead authorize local governments to enter into contracts with humane societies, thereby ensuring that a contract is in place before a humane society can request payment for its services. This is intended to eliminate the likelihood that a humane society could receive payment for services not sanctioned or requested by a local government. However, humane societies would still be able to enforce state laws for the prevention of cruelty to animals in the absence of a contract. This particular code section also contains some references to SB 1417 (Cox) Page 10 of ? contracts with societies for the prevention of cruelty to children, which are obsolete. Counties do not contract with humane societies for child welfare services; this is all done internally. Accordingly, this bill would delete the outdated references in Section 14501. 5. New requirements for the appointment of humane officers This bill would impose the following requirements before a humane society could appoint a humane officer: (1) a minimum of five years have passed since its articles of incorporation were endorsed; (2) it has been operating an animal shelter for a minimum of three years or has a written agreement with another entity that provides for the humane care and treatment of any animals seized; and (3) it has been in compliance with all applicable federal, state, and local laws for a minimum of five years. Under current law, a humane society need only wait six months before appointing a humane officer, who then has the power, depending on the level of training, to exercise the powers of a peace officer to prevent animal cruelty, make arrests, serve search warrants, and carry firearms. According to the sponsors, these new requirements are intended to ensure that humane officers are supervised by an organization that had had an opportunity to develop a donor base, create ties with the community and local law enforcement/animal control agencies, and establish themselves as a professional and credible entity within the community. Opponents expressed concerns that the five-year waiting period is unprecedented and would discourage the new formation of humane societies. They have also asserted that this requirement would effectively terminate existing humane societies that have been incorporated for less than five years. They also assert that it is unreasonable to require all humane societies to operate animal shelters since they serve different functions. Accordingly, this bill, as proposed to be amended, would provide that the five-year waiting requirement does not apply to humane societies that were incorporated prior to January 1, 2011. In addition, humane societies would not be required to operate an animal shelter themselves, but instead have a written agreement with an entity that provides humane care for any animals seized. While these amendments have addressed some of the opposition's SB 1417 (Cox) Page 11 of ? concerns, they remain opposed to the five-year waiting period because they assert it will discourage the formation of new humane societies. 6.Increased requirements for humane officers Current law contains two categories of humane officers (level 1 and level 2) and prescribes the powers and qualifications for each. A level 2 officer must complete 60 hours of training in state humane laws and animal care. In order to make arrests and serve search warrants, the officer must complete the arrest component of the course prescribed under Penal Code Section 832. A level 1 humane officer must also complete 60 hours of training, but also has the option of carrying a firearm if he or she completes the basic training prescribed by the Commission on Peace Officers Standards and Training for a level 1 reserve officer. In addition, a level 1 humane officer may not be a felon and must be free from physical, emotional, or mental conditions that could affect the exercise of his or her powers. (Corp. Code Sec. 14502.) This bill, as proposed to be amended, would require that both level 1 and level 2 humane officers be subject to the same disqualification standards, background checks, and evaluations for physical, emotional, or mental fitness as currently required for level 1 officers. These are also some of the same requirements imposed on peace officers. As previously stated, humane officers are not peace officers, but they may exercise the powers of a peace officer at all places within the state in order to prevent cruelty to animals. Thus, they may serve warrants, make arrests, and use reasonable force necessary to prevent the perpetration of cruelty to animals. Because humane officers have some authority to act under the color of law, it is arguably appropriate to ensure that they go through heightened background checks for criminal history and physical and mental evaluations to ensure that they are capable of carrying out their duties. The current version of the bill would have eliminated the level 1 and level 2 distinctions, but would have heightened the requirements for the entire category of humane officers, with additional training requirements imposed for those who wish to carry firearms. Opponents expressed concerns that the removal of the two distinct categories would facilitate and encourage the carrying of weapons by humane officers. Additionally, they SB 1417 (Cox) Page 12 of ? argued that removing the two levels would make it difficult for a court affirming the humane officer's appointment to know whether the officer would ultimately be carrying a firearm. This bill, as proposed to be amended, reinstates the two levels of humane officers, which should address this concern. 7. Continuing education and training for humane officers This bill would require all humane officers to complete certification of compliance for continuing education and training during each three-year period following his or her appointment. A humane society would also be required to obtain Criminal Record Offender Information on the humane officer no more than 60 days prior to the end of the three-year period. As proposed to be amended, a certificate of compliance would have to be filed with the Department of Justice, who would be authorized to charge a fee to cover the reasonable cost of filing and processing the certificates of compliance. Failure to file the certificate of compliance no later than twenty-one days after the expiration of a three-year period would result in immediate revocation of the appointment. If the humane officer is authorized to carry a firearm, he or she would additionally be required to complete weapons training and range qualifications every six months. This would also have to be filed with the Department of Justice. The version of the bill currently in print would have required the certificate of compliance to be filed with the superior court. However, concerns were expressed that courts were not the appropriate entity to be receiving these certificates, especially if they were intended to increase oversight of humane officers. Because humane officers are authorized to exercise some peace officer duties, the Department of Justice is arguably the most appropriate state entity to oversee continued training compliance and revocations for failure to comply. 8. Additional Opponents' concerns In addition to the concerns previously discussed, the opposition generally asserts that this bill would discourage the formation of new humane societies, and thereby reduce the number of humane officers in the state. The opposition states that California needs more, not less, humane officers to enforce laws preventing cruelty to animals, and point out that they reduce costs to local governments who otherwise are tasked with enforcing these laws. The opposition also asserts that the inclusion of law SB 1417 (Cox) Page 13 of ? enforcement agencies and the State Humane Association of California in the incorporation and appointments procedures is unwarranted and promotes an adversarial process. The Antelope Valley Kennel Club, also in opposition, opposes SB 1417 on the grounds that it does not abolish humane officers completely. It argues that humane officers are not accountable to the public, and should not have the authority to enforce state laws. Support : California Animal Control Directors Association; Judicial Council (if amended); Peace Officers Research Association of California Opposition : Animal Legal Defense Fund; Antelope Valley Kennel Club, Inc.; Humane Society of the Sierra Foothills; League of Placer County Taxpayers; National Animal Control Association; Riverside Humane Society Pet Adoption Center; Social Compassion in Legislation; one individual HISTORY Source : Placer County Board of Supervisors; State Humane Association of California; California State Sheriffs Association Related Pending Legislation : None Known Prior Legislation : SB 477 (Craven, Chapter 84, Statutes of 1994) imposed increased training requirements on humane officers. AB 1571 (Caldera, Chapter 806, Statutes of 1995) provided that humane officers may only enforce laws inside the county in which their appointing agency is incorporated unless they receive consent from the sheriff of another county. **************