SPRING 2017 Published by the Ohio State Bar Association Animal Law Committee Animal Law News Animal Cruelty Prosecution Kyle Silvers, Esq. and Jeffrey Holland, Esq. An essential area of animal law is the prosecution of animal cruelty cases. These cases, however, can present unique considerations. INSIDE For example, animal cruelty—and its prosecution— Lawyering and life .................................................................3 are often part of a larger pattern of abuse and related Ohio legislative update ..........................................................4 to other crime such as domestic violence. Also, the Message from the chair ...................................................11 victims themselves are unique. Animals are defenseless, vulnerable and unable to verbally describe the abuse that has been inflicted upon them. Because of that, animal cruelty prosecutors must rely on the tools used in animal cruelty cases, such as a pinch test to determine (continued on pg. 2) Animal Law News dehydration or a Body Condition can focus more exclusively on the penalties for animals abused by the Score (BCS), frequently used by nuances of animal law. Among owner, manager, or employee of veterinarians to assess muscle and these is the determination of what a dog kennel. (“Nitro’s Law.”) All fat or overall body condition. constitutes suffering for an animal, animals which are not “companion Those who prosecute animal cruelty and how, and if, that suffering animals” are covered by Ohio cases are also unique in that, in the can be remedied or relieved. Rev. Code § 959.13, which has state of Ohio, pursuant to Ohio remained virtually unchanged The primary animal cruelty statutes Rev. Code § 2831.18, prosecutors for over 100 years. All offenses are Ohio Rev. Code § 959.131, may be employed by a humane require proof of reckless conduct, which applies to companion society to prosecute violations of and are all second degree animals, and Ohio Rev. Code § law relating to cruelty to animals. misdemeanors, regardless of 959.13, which applies to all other One of these prosecutors is J. the severity of the offense. animals, including livestock and Jeffrey Holland, Esq., of Holland wild animals. Companion animals There are also statutes which & Muirden in Sharon Center, include all dogs and cats, and all specifically prohibit abandoning Ohio. Jeff has prosecuted animal other animals kept in a residential animals and animal fighting. cruelty cases in more than 30 Ohio dwelling, with some exceptions. Interestingly, dog fighting is a felony counties and describes what he does “Knowingly” abusing a companion on a first offense, while cockfighting as “good, solid, important work.” animal is a first degree misdemeanor is only a 4th degree misdemeanor. In prosecuting each of these on a first offense, and a fifth degree As for the types of cases Jeff tries, cases, Jeff obtains a resolution felony on each subsequent offense. he describes them as all important of the board of directors to With the passage of “Goddard’s and all interesting. But perhaps provide notice to the court of his Law,” effective Sept. 13, knowingly three of the most memorable designation as a prosecutor for causing “serious physical harm” cases involved a defendant who animal cruelty cases. He charges to a companion animal is a fifth sacrificed his daughter’s black lab only the court appointed rate. degree felony on a first offense. to appease the Nigerian God of Jeff then must work within the Negligently causing unnecessary Iron; a cat who was stomped to statutory constraints, and finds that pain or suffering to a companion death to invoke the power of Satan; unlike “generalist” prosecutors, who animal is a second degree and a hoarder, who in addition to repetitively deal with more typical misdemeanor or a first degree a houseful of cats, saved jars of her types of cases (OVI, domestic misdemeanor on each subsequent own urine and used toilet paper. violence, theft and/or assault), he conviction. There are also enhanced About the Animal Law Committee This committee was established some way in virtually all other areas (animal abuse and the link between in 2010 with an emphasis on the of the law, from estate planning (care animal abuse and human violence). It connection of animal welfare issues of cherished pets after the guardian is our sincere hope to bring valuable on virtually every legal discipline and dies), to family law (custody of pets, information to you regardless of we will continue to bring attention to protecting pets from domestic violence your primary practice area. the interdisciplinary nature of animal offenders), contract law (contractual Copyright © Ohio State Bar Association law through our efforts, including this agreements for the purchase and/ 2017. publication. Animals are involved in or sale of pets) and criminal law 2 Animal Law News Lawyering and life By Mark J. Bamberger, Esq., Owner, Attorney, Counselor, and Advocate at Law, The Mark Bamberger Co., LLC (TMBC)1 What is it like to be a lawyer? Well, honestly care, and those are not Though it never will pay the bills, I it can suck. Alcohol and substance just words, but shown again and am general counsel for a few animal abuse among attorneys is among the again by my staff and my actions. shelters and do legal work for a wolf highest of any profession.2 The fact sanctuary and rescue organization.5 Not all lawyers do care. Many is that in so many cases, it is hard The criminal defense, bankruptcy, get into the business for personal to divorce ourselves (pardon the divorce and custody work is what I gain—to grab that corner office pun) from the pain and suffering do to maintain the practice. Animal doing only transactional law and of our clients. So many attorneys law is what I do to maintain my soul. never see the inside of a courtroom. take that pain home with them Others literally do ‘chase ambulances’ On “The Blue Mistress,” my beloved and self-medicate. I am one of the and feast on others’ misfortunes. 2000 Honda Goldwing motorcycle, few attorneys who would probably These are the attorneys that give I try vigorously not to think about benefit from actually work (sorry folks). drinking more, but all However, when I do, joking aside, this is a The criminal defense, bankruptcy, divorce I see the faces and serious problem. Not expressions of the only are lives ruined and custody work is what I do to maintain clients TMBC has by such addiction, the practice. Animal law is what I do to been able to help. but the quality It makes me smile of representation maintain my soul. as the hundreds of to our clients can motorcycle miles fly by. suffer. There is an entire branch of most bar this incredibly noble profession its 1 TMBC has offices is Spring associations to confidentially bad name. Yet, attorneys and their Valley, Tipp City, West Chester, help attorneys with addiction.3 management of the common law and Enon, Ohio. Check out is the foundation of our society. www.bambergerlaw.com. One of the most important skills your When Shakespeare wrote, “The attorney can have is the ability to 2 See for example http://www. first thing we do, let’s kill all the compartmentalize. I am occasionally brooklyneagle.com/articles/lawyers- lawyers,”4 he was not disparaging asked how I can represent alleged struggle…, March 22, 2013. the profession, but in context saying rapists and thieves, people going that attorneys are the basis on 3 In Ohio, the State Bar Association through a contested divorce or which cordial and regulated society has the Lawyers Assistance custody dispute or a disastrous works. I take that stuff seriously. Program (www.ohiolap.org). bankruptcy. The answer is that I can usually compartmentalize. My wife, As many of you know, law is my 4 shakespeare.mit. Lynne, and my daughters are happy second career. I was an environmental edu/2henryvi/2henryvi.4.2.html, for this. Many testimonials on our geologist for 18 years before going cited from Henry VI, Part website (www.bambergerlaw.com) to law school. I went to law school 2, Act 4, Scene 2. talk about my compassion and in the evenings while teaching at 5 Wolf Creek Wolf Sanctuary demonstrated concern for client two colleges during the day and and Rescue, Brookville, Ind. See problems and worries. That is great helping to raise three daughters. www.wolfcreekhabitat.org. to hear, but is also quite true. I do For me, animal law is my passion. 3 Animal Law News Ohio legislative update By Sandra Horvath, Esq., Chair of the Animal Law Committee, and Vicki Deisner, Esq., Midwest Legislative Director, ASPCA The 131st General Assembly (2015- provided protocol is followed (SB restrictions on municipal home 2016) proved to be a very exciting 215); we saw legislation passed that rule and is being challenged in session for animal laws. There were allows for felony on the first offense the courts, so stay tuned. an astounding number of bills that of animal abuse, Goddard’s Law Last session, we as a committee impacted animals, for the good and (HB 60); and we saw a bestiality asked the OSBA to support HB the bad, introduced. Many passed law passed in Ohio, the elimination 195 (Bestiality). This is only a and, most likely, those that did of county residence requirements summary of what proved to be a not will be reintroduced in some for humane agents, as well as felony whirlwind legislative session. Please form in this coming session. Just to level penalty for cockfighting (all see below for detail on last session’s summarize some of the many bills: we rolled into SB 331 and passed at bills, and please look for updates saw legislation passed that expanded the very end of the session).