HB 198 Danamariepannella

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June 15, 2015

The Ohio House Judiciary Committee


c/o Chairman Jim Butler
[email protected]
Re: Opponent testimony to HB 198

Dear Chairman Butler and Honorable Members of the House Judiciary Committee,
I submit this letter as written testimony in opposition to House Bill 198 (HB 198), a bill
currently under your guidance that would repeal our local humane societies ability to appoint a
prosecutor for cases related to animal cruelty. I have served as a prosecutor for animal cruelty
cases for just over two years.
It is my opinion that if HB 198 is passed through this committee as drafted, it will have a
drastic chilling effect on the valuable services our local humane societies provide, often free of
charge, to both humans and animals alike.
1. What is a humane society?
I believe it is confusion and misunderstanding about this states humane societies that
lends to the impetus behind this bill. Contrary to statements that humane societies are just a
special interest nonprofit, they are actually political subdivisions, just like municipalities,
townships, and park districts, which enforce this states animal cruelty laws. Humane societies
are not simple corporations like the NRA or Mothers Against Drunk Driving. Political
subdivisions function independently of either the county or the townships whose territory is
included in the districts and they are responsible for governmental activities. They are not
county boards, nor are their officers county or township officers. Case law confirms that humane
societies, like park districts, are an entirely separate governmental overlay.
2. Why do humane societies exist, and who controls them?
The humane society model relieves our state of the burden and expense of caring for
animals. It is no secret that our local animal control, sheriffs, and police are often underpaid,
understaffed, and overburdened. For that reason, the legislature of this state delegated a very
important task to a nonprofit political subdivision, humane societies. While the legislature
recognized a need for crimes against animals to be investigated and prosecuted, they also
realized that other things are a priority when governmental funds are limited.
Humane societies are controlled by a board of directors and have the vested power to
hire legal counsel and law enforcement, just like many other agencies, such as park districts
and the port authority. As support for the relief humane societies provide, the counties are
required to pay one humane agent $25 per month and contribute toward the prosecution of
cases. However, those payments are obviously not enough to operate a humane society.
Citizens are very much in control of a humane societys work. If citizens support the humane
societys work and want that work to continue, they must vote with their money and time.
Beyond the immense power of citizen donations, significant oversight of humane society
operations is already in place.

First, county probate courts are vested with the power to control humane agent
appointments. This direct control of a political subdivisions employees does not exist in other
analogous scenarios, such as that of a park district or city, and actually creates more direct
oversight of the humane societies actions than in any other political subdivision.
Second, county commissioners have direct oversight for prosecutorial work. County
commissioners only have to pay prosecutors such amounts as are deemed "just and
reasonable." Commissioners can make any reasonable inquiry they like under current law to
determine whether an appointed prosecutor is providing proper services to the community, and
can deny payment for services which are not just or reasonable.
Third, ORC 309.05 allows a citizen to file a petition to remove a prosecutor for improper
conduct.
Fourth, humane societies are subject to the oversight of the Attorney General. The
Attorney General monitors and conducts investigations into this states charitable organizations,
including humane societies.
Fifth, humane society prosecutors are subject to the oversight of the Ohio Supreme
Court. They are subject to the same rules of ethics as every other prosecutor in this state.
3. Humane societies are transparent.
The sponsors of this bill have advocated for transparency in humane society cases. A
humane societys work as law enforcement is actually subject to the same open public records
act as every other law enforcement agency in the state. Humane society funding and spending
activities are also public record and filed yearly as part of tax reporting laws.
The sponsors of this bill have said that their goal is to place prosecutorial authority back
in the hands of elected local prosecutors in order to gain transparency. However, if this statute
is repealed in its entirety, that will not be true.
County prosecutors very rarely handle animal cruelty crimes, which are most often
misdemeanors. Many of the prosecutors who would handle humane society cases, municipal
prosecutors and law directors, are not elected officials and are not subject to oversight like
county prosecutors are. County prosecutors submit annual reports to the Attorney General and
county commissioners, while many municipal prosecutors do not have such a reporting
requirement in their localities.
In fact, the existing layers of transparency and oversight for humane society
prosecutors are actually equal or greater than those of other political subdivisions, who
often prosecute a wide range of crimes. On the other hand, humane society prosecutors, when
they are private counsel, prosecute cases in a very narrow area of the law.
4. Humane society prosecutors are interested in their casesand they should be.

Supporters of the bill claim that current law creates a "conflict of interest because
humane societies appoint both law enforcement and prosecutors, who are interested in the
cases they investigate and prosecute. This situation is actually not unusual at all and occurs in

our cities, parks, and other political subdivisions that are not driven by elections and sometimes
those that are driven by elections.
Nationwide, courts have never held, as a matter of due process, that criminal defendants
are entitled to an impartial prosecutor in the same way they are entitled to an impartial jury and
tribunal. The Supreme Court has also observed that public prosecutors need not be entirely
neutral and detached Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980).
Prosecutors should understand and care deeply about the crimes they prosecute. This is
not a conflict of interest. In fact, an Attorney General opinion indicated that a humane agent
could also serve as a humane society prosecutor (assuming they were duly licensed as an
attorney).
5. Unintended consequences.
Repealing ORC 2931.18 has clear consequences for animals and people, which I trust
that other opponents will address.
A somewhat less obvious consequence is that a complete repeal of this bill may
actually remove a humane societys ability to prosecute animal cruelty crimes altogether.
As a political subdivision, the power of a humane society to prosecute is given in the ORC. The
same is true for other political subdivisions, such as park districts, municipalities, and townships.
There is a misunderstanding about ORC 2931.18, which not only gives humane societies the
authority to appoint a private prosecutor, but also a local prosecutor. If repealed, humane
societies would potentially lose their ability to prosecute cases altogether.
There can be no doubt that prosecuting these crimes is extremely important. While the
link between animal cruelty and other crimes is gaining recognition, and animal welfare gaining
interest in our communities, the fact remains that resources are scarce and education is limited.
One day, humane societies may not be needed to enforce the animal welfare laws of this state.
But, it is clear as someone who works in the animal welfare field, that day is not today, or
tomorrow, or any day soon. Prosecutorial powers are clearly needed for humane societies to
protect our human communities and the animals that live amongst them.
6. Suggested modifications.
While I believe many of the concerns expressed by the proponents of this bill are largely
based on misunderstanding, there are many ways to give humane societies and other political
subdivisions additional oversight instead of repealing a much needed statute.
I very much agree with the suggestion to allow county probate courts, which already
oversee county humane agents, to have authority to remove an appointed prosecutor for
reasonable cause, and to require annual reporting by that prosecutor to any number of possible
entitiesthe county commissioners, probate court, or local prosecutors if a private attorney is
utilized.
I believe repealing the statute in question, ORC 2931.18, is not only unnecessary to
accomplish the goals of the sponsors, which are transparency and oversight, but would create
far more issues than this bill hopes to remedy without a full understanding of the facts and
potential consequences. I ask that this committee refrain from vote on this matter until the
issues can be fully researched and intelligently discussed.

I appreciate your consideration and attention to this matter.


Yours truly,
DanaMarie K. Pannella
Attorney at Law

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