BILL ANALYSIS
SB 1417
Page 1
Date of Hearing: June 22, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1417 (Cox) - As Amended: May 18, 2010
As Proposed to Be Amended
SENATE VOTE : 29-0
SUBJECT : CORPORATIONS FOR PREVENTION OF CRUELTY TO ANIMALS
KEY ISSUE : TO INCREASE PROFESSIONAL STANDARDS AND OVERSIGHT
OVER THE APPOINTMENT OF HUMANE OFFICERS, SHOULD MORE PRACTICAL
PROCEDURES AND REQUIREMENTS BE ESTABLISHED FOR THE CREATION OF
HUMANE SOCIETIES AND THE APPOINTMENT OF HUMANE OFFICERS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill is co-sponsored by the Placer County Board of
Supervisors, the California State Sheriffs' Association, and the
State Humane Association of California, a non-profit membership
association of humane societies. This bill significantly
revises current law by imposing new procedures and requirements
for the appointment of humane officers by non-profit
corporations formed for the purpose of preventing cruelty to
animals. According to the author, the overall purpose of this
bill is to strengthen inadequate existing law and "raise the
professional bar" for the formation of humane societies and the
appointment of humane officers. Because humane officers have
certain search, seizure, and arrest powers under existing law,
supporters believe this bill is needed to increase standards for
humane officers.
The author and sponsors have worked closely with the Committee
to draft a series of amendments that meet the author's
objectives of quality and oversight, while simultaneously
attempting to address concerns from the opposition that new
requirements will effectively deter new humane officers from
being appointed. As proposed to be amended, the bill, among
other things, (1) eliminates any requirement for judicial
endorsement of the articles of incorporation; (2) reduces the
period of time that a humane society must wait before it can
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appoint a humane officer from five years to two years for
appointment of a level 2 humane officer; (3) specifies several
qualitative examples of documents and evidence that a new
petitioning society may submit in affidavit form to the court;
(4) eliminates any requirement for reaffirmation of a previously
confirmed humane officer; and (5) aligns the revocation process
with the initial appointment and confirmation process.
Prior to the proposed amendments, the bill's opponents have
generally contended that the procedures and requirements imposed
by this bill are "onerous," make the appointment and
confirmation process "adversarial," and will have the practical
result of fewer new humane societies being created and fewer new
humane officers appointed in a time when more, not less,
enforcement of animal laws is needed. It is unknown whether the
amendments remove any or all of the opposition to the previous
version of the bill.
SUMMARY : Establishes new procedures and requirements for the
appointment and confirmation of humane officers by non-profit
humane societies. Specifically, this bill :
1)Repeals Sections 10401 and 10402 of the Corporations Code,
eliminating the requirement that a humane society's articles
of incorporation must be endorsed either by the Department of
Justice or by the judge of the superior court in the county
and instead permits a corporation for the prevention of
cruelty of animals (humane society) to form under the
Nonprofit Public Benefit Corporation Law without the need to
obtain endorsement of its articles or other special
restrictions, except that a humane society formed on or after
January 1, 2011, must state in its articles that the
corporation is formed pursuant to Section 10400 of the
Corporations Code.
2)Eliminates the antiquated requirement that a city, county, or
city and county, pay up to $500 per month to a society
actively engaged in enforcing state laws for the prevention of
cruelty to animals or children, and instead authorizes local
governments to enter into contracts with humane societies for
the enforcement of laws for the prevention of cruelty to
animals, but also permits these societies to enforce these
laws without a contract.
3)Requires that a humane society seeking to appoint a humane
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officer shall file a Petition for Order Confirming Appointment
of a Humane Officer with the superior court of the county in
which its principal office is located, in compliance with the
following rules:
a) Prior to filing the Petition, the society must obtain
criminal record offender information regarding the
appointee from the Department of Justice.
b) Prior to filing the Petition, the society shall serve a
copy on: (1) the police department having jurisdiction in
the city in which the principal office of the appointing
society is located; (2) the sheriff's department having
jurisdiction in the county in which the principal office of
the appointing society is located; (3) the Department of
the California Highway Patrol; (4) the State Humane
Association of California; (5) the Department of Justice.
c) The society must attach to the petition a number of
supporting documents, including (1) proof of proper
incorporation of the society; (2) criminal record
information of the appointee; (3) a copy of the society's
insurance policy for at least $1 million; (4) proof that
the appointee has met training requirements; (5)
documentation that the society is operating a shelter or
has contracted with another entity to shelter any animals
it seizes, as specified.
d) If the society has not previously appointed a humane
officer, then it must also attach to the petition an
affidavit that demonstrates the society's competence to
appoint a humane officer by providing additional
information, such as: (1) evidence of partnerships with
other community agencies, (2) current or prior law
enforcement experience or non-profit managerial experience,
(3) cash reserve and donor base of the society; and (4)
need for the humane officer in the county.
4)Provides that a party that was required to be served with the
Petition may file an opposition to the Petition, which shall
be filed no later than 15 days after the Petition and is
limited in subject matter to the competency of the society to
appoint and supervise a humane officer, and the
qualifications, background, and fitness of the appointee that
are specific to the work of a humane officer. Permits the
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society to file a reply to any opposition to the Petition no
later than 10 days after service of the opposition.
5)Specifies certain conditions upon which the court is required
to deny the petition without further consideration if the
society cannot demonstrate in its submitted materials that:
a) In the case of a Petition to appoint a level 1 humane
officer, at least 5 years have elapsed between the date the
society filed its articles of incorporation and filed the
Petition. In the case of a Petition to appoint a level 2
humane officer, at least 2 years must have elapsed.
b) The society has a written agreement with another entity,
such as a public or private animal shelter or licensed
veterinary clinic, that (i) provides for the humane care
and treatment of any animals seized by the society; (ii) is
capable of preserving evidence that may be used to
prosecute an animal cruelty case; (iii) is compliant with
all applicable federal, state and local laws, including
licensing laws. Alternatively, the society may operate its
own animal shelter that meets these three requirements.
6)Requires the court, in determining whether to confirm the
appointment, to review the appointee's qualifications and any
documents that have been provided in support of or in
opposition to confirmation of the appointment. Provides that
if the court finds that the appointee is "qualified and fit to
act as a humane officer", then the court shall issue an order
confirming the appointment, otherwise it may deny the
appointment.
7)Eliminates the judicial procedure for reaffirmation of a
humane officer's appointment proposed in the previous version
of the bill. Provides instead that any humane officer
confirmed prior to January 1, 2012 shall not be required to
seek a new court order confirming his or her appointment, but
that a level 2 humane officer shall file a certificate of
compliance with criminal background requirements, as
specified, with the Department of Justice on or before January
1, 2012, or that humane officer's appointment will be
immediately revoked.
8)Requires a party petitioning for a revocation of the
appointment of a humane officer to follow the same law and
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motion requirements for filing, service, and format of papers
submitted to the court that apply to the petition to confirm
appointment of the officer.
9)Requires that all level 1 and level 2 humane officers complete
the background checks and physical and mental evaluations
currently required only of level 1 officers. Additionally
requires a level 2 humane officer to provide proof of
compliance with criminal background check requirements, as
specified, by filing a certificate of compliance with the
Department of Justice on or before January 1, 2012, or that
humane officer's appointment will be immediately revoked.
10)Requires humane officers to complete continuing education and
training requirements during each three-year period following
his or her appointment. Requires Level 1 humane officers to
complete additional weapons training and range qualifications
every six months. Requires all humane officers to file
certificates of compliance with the Department of Justice at
the end of the three-year or six-month period. Provides that
failure to comply with the ongoing training requirements shall
result in revocation of the humane officer's appointment at
the end of a three-year term.
11)Requires all humane societies and humane officers to be in
full compliance with Section 14502 on or before January 1,
2012.
12)Authorizes the Department of Justice to charge a reasonable
fee sufficient to cover costs of maintaining various records
of Orders, certificates of compliance, and other documents.
EXISTING LAW :
1)Provides that corporations for the prevention of cruelty to
children or animals, or both, may be formed under the
Nonprofit Public Benefit Corporation Law (Part 2 of Division 2
of Title 1 of the Corporations Code, commencing with Section
5110), by 20 or more persons, who shall be citizens and
residents of this state. (Corporations Code Section 10400.)
2)Pursuant to the Nonprofit Public Benefit Corporation Law,
permits one or more persons to form a corporation for any
public or charitable purposes by executing and filing articles
of incorporation with the Secretary of State. The corporate
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existence begins upon filing of the articles and continues
perpetually, unless otherwise expressly provided by law or in
the articles. (Corporations Code Sections 5111, 5120.)
3)Requires all articles of incorporation of corporations for the
prevention of cruelty of animals filed with the Secretary of
State to be endorsed by the Department of Justice or by a
judge of the superior court of the county in which the
principal office of the corporation is located, as evidence of
necessity. Under circumstances where the application for
endorsement has been made to the judge, after giving due
consideration to the necessity of such corporation and
assuring himself that the incorporators are acting in good
faith, the judge may endorse the articles if so desires.
(Corporations Code Sections 10401, 10402.)
4)Provides that all magistrates, sheriffs, and officers of
police shall, as occasion may require, aid a corporation for
the prevention of cruelty to animals, its officers, members,
and agents, in the enforcement of all laws relating to or
affecting animals. (Corporations Code Section 10405.)
5)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.
(Corporations Code Section 14501.)
6)Provides that only a humane society is eligible to apply for
appointment of a level 1 or level 2 humane officer, whose duty
shall be the enforcement of the laws for the prevention of
cruelty to animals. (Corporations Code Section
14502(a)(1)(A).)
7)Provides that any humane society that has insurance of at
least $1 million for liability for bodily injury or property
damage may appoint any number of persons as humane officers,
as long as those individuals are California citizens and
specified training guidelines have been met. Authorizes the
society to appoint humane officers only after it has been
incorporated for 6 months, upon resolution by its board of
directors or trustees. (Corporations Code Sections
14502(a)(2), 14502(a)(3).)
8)Requires that any humane society that proposes to appoint a
humane officer to submit an application for appointment to a
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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
either confirm or deny the appointment. (Corporations Code
Sections 14502(a)(1)(B), 14502(i).)
9)Requires that before appointing a humane officer, a humane
society must first 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.
(Corporations Code Section 14502(n).)
10)Permits a corporation which has appointed an officer to
revoke that appointment at any time upon filing a copy of the
revocation 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. (Corporations Code Section 14502(g).)
11)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. (Corporations Code Section
14502(f).)
12)Provides that level 1 and level 2 humane officers are not
peace officers, but may exercise the power of a police officer
at all places within the state in order to prevent the
perpetration of animal cruelty. 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, but Level 2 humane officers are not
authorized to carry firearms. (Corporations Code Section
14502(i).)
13)Requires the Department of Justice to maintain state summary
criminal history information, as defined, and to provide that
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information to persons holding specified occupations
including, without limitation, probation officers and parole
officers. Requires local criminal justice agencies to
maintain similar information and provide that information to
specified agencies and persons holding specified occupations.
(Penal Code Sections 11105, 13300.)
COMMENTS : This bill is sponsored by the Placer County Board of
Supervisors, the California State Sheriffs' Association, and the
State Humane Association of California, a non-profit membership
association of humane societies with over 130 member
organizations in the state. This bill significantly revises
current law by imposing new procedures and requirements for the
appointment of humane officers by non-profit corporations formed
for the purpose of preventing cruelty to animals (customarily
referred to as "humane societies.")
What is a Humane Officer? Humane officers occupy an unusual
status in California between purely private actors and public
peace officers. Humane officers work to enforce the state's
animal welfare laws, but may be appointed only by a private
non-profit humane society formed under California's Corporations
Code. Appointment must be followed by judicial confirmation of
the appointment petition before a person enjoys humane officer
authority under the law. Existing law explicitly provides that
"a humane officer is not a peace officer, but may exercise the
powers of a peace officer at all places within the state." A
humane officer's scope of powers 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.
According to the co-sponsor State Humane Association (SHAC),
there are approximately seventy-five humane officers in the
state, the majority of which work for a humane society that is a
member of SHAC and are not authorized to carry firearms. Humane
officers serve the public good by assisting law enforcement
officials enforce animal cruelty laws, and the benefits they
provide typically comes at no cost to the state because officers
are volunteers or work for the non-profit humane society that
appointed them. Legislating about humane officers presents a
special challenge simply because
Competing concerns: Increasing standards for humane officers
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without deterring good candidates for appointment . According to
supporters, the overall purpose of this bill is to strengthen
inadequate existing law and "raise the professional bar" for the
formation of humane societies and the appointment of humane
officers. Because humane officers have certain search, seizure,
and arrest powers under existing law, the author believes this
bill is needed to "increase the standards for humane officers."
Proponents of the bill speak of "raising the professional bar"
to ensure that new humane societies and their officer appointees
possess certain assurances of quality before an appointment is
confirmed. Existing law has in practice set an uncertain
standard for appointment of humane officers but it does not
provide appropriate guidance to the judge charged with
confirming or denying the appointment.
By design, this bill creates new obligations and
responsibilities for both the appointing humane society and an
appointee seeking confirmation as a humane officer, which could
conceivably have the effect of preventing some appointees from
being confirmed who under existing law might otherwise be
confirmed. On balance, it is believed that the trade off
between weeding out unqualified or questionable candidates who
should not be granted the privilege of humane officer status
justifies imposing additional obligations and responsibilities
that may potentially deter well-meaning and qualified candidates
from pursuing appointment or forming a new humane society.
The author and sponsors have worked closely with the Committee
to draft a series of amendments that meet the objectives of
quality and oversight, while simultaneously attempting to
address concerns from the opposition that new requirements will
effectively deter new humane officers from being appointed. As
proposed to be amended, the bill reaches a balance of these
competing concerns, and contains several qualitative
improvements. It is unknown whether the amendments have removed
any or all of the opposition to the earlier version of the bill.
Prior to these amendments, opponents complained that the
procedures and requirements imposed by the bill are "onerous",
make the appointment and confirmation process "adversarial," and
will have the practical result of fewer new humane societies
being created and fewer new humane officers appointed in a time
when more, not less, enforcement of animal laws is needed,
particularly because local government cannot afford to keep it a
priority.
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As proposed to be amended, this bill eliminates any requirement
for judicial endorsement . The author has proposed to amend the
bill to remove the comprehensive procedure and rules for
judicial endorsement of a society's articles of incorporation,
proposed in previous versions of the bill, that would have had
to be undertaken before the petitioning group could obtain
humane society status under the Corporations Code. This
proposed amendment directly addresses opponents' concerns that
the proposed endorsement process was onerous and unprecedented
in non-profit corporation law. It addresses the Committee's
concern that because it applied to all groups seeking status, it
created unnecessary barriers that might deter the formation of
legitimate non-profit organizations, uninterested in enforcing
animal cruelty laws, that wished to incorporate as an official
humane society to carry out a number of other important
community-based functions related to animals (e.g. run a
shelter, spay/neuter services, coordinate pet adoptions, etc.)
Finally, this proposed amendment also relieves some burden for
the courts, who, faced with additional responsibilities in
hearing petitions for appointment of humane officers, likely did
not wish this particular responsibility as well. As proposed to
be amended, the bill also repeals the skeletal requirement for
judicial endorsement in existing law, which as written was
widely considered inefficient because the courts lacked guidance
on how to handle such petitions and were not assured any
substantive information on which to base a decision to endorse
or not endorse.
As proposed to be amended, this bill establishes new criteria
and new procedures for handling a petition confirming
appointment of a humane officer. The author has proposed to
amend the bill to revise several criteria and procedural
requirements for appointment and confirmation of humane
officers. First, the "eligibility criteria" for authority to
file a petition to appoint a humane officer have been slightly
changed, and incorporated into the criteria of the petition
itself. This proposed amendment solves a workability problem
for the court and petitioners because there is no appropriate
decisionmaker, other than the judge who must review the
petition, to determine whether the petitioning group has met the
conditions specified as "eligibility" criteria in the previous
version of the bill. The court clerk at the time of filing is
not equipped to make such a determination. Therefore, as
proposed to be amended, the bill requires that evidence that the
former "eligibility" criteria have been satisfied are submitted
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as part of the materials attached to the petition, and the court
is required to evaluate those factors first. If the court
determines one of those criteria has not been satisfied (and
would have rendered the petitioner "ineligible"), the court may
deny the petition without further consideration.
As proposed to be amended, the period of time that a humane
society must wait before it can appoint a humane officer is
reduced from five years to two years for appointment of a level
2 humane officer. For appointment of a level 1 humane officer,
who differs mainly because of his authority to carry firearms,
the waiting period remains at five years. This period now
starts running at the time of filing the articles of
incorporation, since endorsement of the articles is no longer
required. Furthermore, as proposed to be amended, there is no
minimum time requirement for the operation of a shelter that the
petitioning group may operate or contract with, because the
relative age of the shelter is thought not to be a guarantee of
a well-run operation; instead, strict qualitative benchmarks are
imposed on the evaluation of the shelter to assure it will
protect any seized animals that it shelters in the future.
Similarly, as proposed to be amended, this bill now adds a
number of qualitative examples of documents and evidence that a
petitioning society shall submit in affidavit form to the court
to demonstrate its competence to appoint a humane officer and
show it has taken affirmative steps to ensure success and
working relationships in the community for the future. This
assures the court has a wealth of information on which to
evaluate the petition, and also provides a basis for reducing
the waiting period from five years to two years for the majority
of petitions.
As proposed to be amended, this bill eliminates any requirement
for reaffirmation of a previously confirmed humane officer, and
aligns the revocation process with the appointment and
confirmation process. The author proposes to eliminate the
reaffirmation requirement and corresponding judicial procedure,
and proposes amendments to make the procedural and law and
motion rules for revocation proceedings consistent with those
now to be applied for confirmation of appointment proceedings.
Standardized vetting of level 1 and level 2 humane officers.
Current law contains two categories of humane officers (level 1
and level 2) and prescribes the powers and qualifications for
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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.
(Corporations Code 14502(i)
This bill requires 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.
Ability to freely contract with any city or county. 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 code section and some neighboring sections also retain
references to societies for the prevention of cruelty to
children, which are obsolete. Counties no longer contract with
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humane societies for child welfare services because counties
have assumed these responsibilities. Accordingly, this bill
would delete the outdated references appropriately.
Compliance with continuing education and training requirements
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. The certificate of compliance must be filed with the
Department of Justice, who is 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, and
a certificate filed with the Department of Justice showing
compliance.
ARGUMENTS IN OPPOSITION : As proposed to be amended, this bill
requires a two-year waiting period for level 2 officers and a
five-year period for level 1 officers. In opposing the previous
version of the bill that had required a five-year waiting period
before a new humane society could appoint either level of humane
officer, the Humane Society of the Sierra Foothills (HSSF)
expressed the viewpoint, shared by other opponents, that "there
is no nexus between a five-year wait and a successful Humane
Officer. No new Humane Society will form or be able to wait
five years before being able to perform the task for which it
was formed." HSSF suggested alternatively a 6-month period for
level 2 humane officers (which reflects the waiting period
required by existing law), and a two-year period for level 1
officers (i.e. an increase of 18 months.)
In its letter to the Committee, HSSF also articulated a number
of other "Necessary Changes" it felt should be made to the bill.
In some cases, the author has proposed to amend the bill to
directly resolve these concerns. For example, the author
proposes to eliminate extensive provisions creating a judicial
proceeding for endorsement of articles of incorporation - an
"adversarial "proceeding that HHSF believes would "spell the end
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to any new humane societies."
HSSF also advocates for the elimination of the "formal
adversarial proceeding" for confirmation of a new humane
officer, stating:
Present code requires court confirmation of a Humane
Officer appointment after the court reviews the petition
for compliance with training requirements, a DOJ
fingerprint report, and a number of other factors. Present
code requires notice to the county sheriff of this
confirmation petition. The sheriff, if he/she desires, can
intervene and object to the confirmation. A formal
adversarial proceeding with 10 to 20 or more adversarial
parties is chilling, expensive, and not necessary.
The reference to "10 to 20 or more adversarial parties" refers
to the requirement that the society serve "local city police
departments" a copy of its petition - which potentially could
involve 20 or more departments in a county like Los Angeles.
The author now proposes to amend the bill to require service
only to a single city police department, having jurisdiction
over the society's home city.
REGISTERED SUPPORT / OPPOSITION :
Support
Placer County Board of Supervisors (co-sponsor)
State Humane Association of California (co-sponsor)
California State Sheriffs' Association (co-sponsor)
Judicial Council of California
Humane Society of the United States
American Society for the Prevention of Cruelty to Animals
(ASPCA)
East Bay SPCA
SPCA Los Angeles
Santa Cruz SPCA
Haven Humane Society of Redding
San Francisco SPCA
Humane Society of Silicon Valley
Sacramento SPCA
Peace Officers Research Association of California (PORAC)
California State Association of Counties
California Animal Control Directors Association (CACDA)
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Animal Issues Movement
PetPAC
Los Angeles District Attorney's Office
Opposition
Paw PAC
Animal Legal Defense Fund
Social Compassion in Legislation
Humane Society of the Sierra Foothills
League of Placer County Taxpayers
Protecting Earth and Animals with Compassion and Education
(PEACE)
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334