- Created on 25 May 2010
- Last Updated on 17 March 2014
- Written by Fred M. Kray
- Hits: 3928
Declaratory relief is often used in dangerous dog cases. Usually you are asking a court to declare that a statute, ordinance, or written policy is unconstitutional.
Elements Required for Declaratory Relief IN FLORIDA
1. A bona fide actual, present practical need for the declaration;
2. A present ascertainable state of facts or present controversy;
3. Some immunity, power, privilege, or right of the complaining party that is dependent upon the facts or the law applicable to the facts;
4. Persons having an actual, present, adverse and antagonistic interest;
5. The antagonistic and adverse interests are all before the court;
6. Relief sought is not mere legal advice.
Complaints Making a Claim for Declaratory Relief
Stefaniw v. Marion County - Complaint for Declaratory Relief
Schoendorf v. Spokane - Complaint for Declaratory Relief
Louisville Kennel Club v. Louisville County Metro Goverment - Complaint
Applicable Case Law
Cases in which Declaratory relief was requested and sucessful in association with Dangerous dog litigation are below.
Colorado Dog Fanciers v. City and County of Denver, 820 P.2d 644 (S.Ct. Colo. 1991) - The Colorado Dog Fanciers filed for declaratory relief on the constitutionality of an ordinance that prohibited Pit Bull ownership. The court agreed with the lower court that putting the risk of nonpersuasion (the burden of going forward with the evidence) on the dog owner instead of the government was unconstitutional.
Louisville Kennel Club v. Louisville County Metro Government, 2009 WL 3210690 (W.D. Ky) - Was a sucessful declaratory relief action in which the court declared unconstitutional that portion of an animal control statute that treated altered and intact dogs differently in terms of how they were housed in an enclosure. It further declared unconstitutional the provisions in the ordinance that would allow the government to deprive the dog owners of their property by requirng a bond before an adversarial hearing. It also ruled that a seizure of a dog under anti-cruelty statutes required a warrant. The actual complaint in the case can be read here.
Minnesota Council of Dog Clubs v. City of Minneapolis, 540 N.W.2d 903 (App.Ct. Minn. 1996) - Although this case's holding was related to a denial of attorney fees, the decision does note that the appellant's filed a sucessful § 1983 action and claim for declaratory relief.
Daskalea v. Washington Humane Society, 480 F.Supp 2d 16 (USDC DC 2007) - Class action suit with state law and a § 1983 claim. Both declaratory and injunctive relief pled. All pets had been seized under the anti-cruelty laws, impounded, sterilized all without the consent or knowledge of their owners.There was no opportunity given to the owners to contest the seizure. The court found the Humane Society acted under color of state law, that the Animal protection law violated due process by enforcing an unconstitutional statute. The statute failed to establish reasonable and articulate standards for the seizure of pets, failed to provide a due process hearing to contest seizure, set reasonable and articulable standards for the release of seized pets, prevent involuntary medical treatment, and prevent arbitrary fines. The statute in question allowed the Humane Society sole discretion in its decesion to seize and animal, make the decision at to whether it was neglected, and to put a lein on the animal for the cost of its care. Nor is the owner able to provide instruction regarding nourishment and care of the animal while being held. The court allowed Plaintiff's claim for diminution of value to her dog and her claim for conversion.
Schoendorf v. City of Spokane, 2007-02-03992-3 (1997) - Schoendorf filed for declaratory relief with respect to a dangerous dog ordinance that they alleged violated their due process rights. The court did declare that the ordiance violated due process because there was no ascertainable standard of proof in the lower proceedings, the owner was denied cross examination, and the owner had not been given prior to the hearing documents used by the government at the hearing.