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. 

                                   **************