- Category: Miami, FL
- Published on Friday, 17 August 2012 17:13
- Written by Fred M. Kray
After Miami's Referendum Failure Why Not A Legal Challenge?
There's not much positive to be said about the failure to repeal BSL in Miami. But if you want to look at the glass half full, read Brent Toellner's article here. Brent will be our guest on Tuesday's upcoming radio show.
You can argue about the ballot language, but I think the time for that challenge has passed. If that was an issue, it probably had to be raised before the election.
At this point, I think a court challenge based on Cardelle v. Miami Dade should be considered. First, I'd like to know how the county is proving breed in court. Based on Cardelle, they are not legally permitted to use animal control officers for visual identification of breed. Someone should go down to a hearing and see how they are doing it. If they are using animal control officers, then they are violating the dictates of the Cardelle decision, and are proceeding unethically.
Secondly, take a case to trial, and when they try to identify breed by visual identification, (by whomever), cross examine, point out there is no training for ANYONE to use visual identification for breed, bring in the Voith study, bring in the genetics expert, bring in the AKC president (as was done in Peters) have him testify that the AKC standards do not identify breed (they are now requiring DNA) and object to the introduction of such evidence as not fulfilling the requirements of Frye/Daubert. In other words, there is no scientific basis for such evidence. Show the hearing officer the Cardelle decision. The hearing officer is bound by the decision. He cannot simply ignore it. If you lose, go up on appeal. The appellate court would have to follow Cardelle since it is the same court. If the court rules there is no science for visual identification as evidence (and there is nothing in the scientific literature that supports it), then Miami-Dade would be forced to find another way to prove breed. Since they have been arguing that DNA is not a defense because it is not in the ordinance, how could they now take the position that it is how THEY will deterimine breed. Still, I'd rather take my chances with DNA than animal control. And, there is a database in California that has been peer reviewed for canine DNA. Your thoughts?
How is this supposed to help other than on a case by case basis? What if the County brings a "qualified" expert to the hearing? Then it's back to square one. This is a legislative problem. It needs a legislative solution.
I agree that the issue needs a legislative solution - but thus far that has failed, and I don't see any politician from Dade County voting for repeal after the referendum. This would leave a state solution, which would be difficult in light of the results of the referendum.
I don't believe there is a scientific expert for visual identification Dade County could bring that would qualify under Cardelle, which is binding precedent. Even if they brought a veterinarian, I don't think his background would qualify him as an expert. If enough cases are thrown out on a case by case basis, the county would have to re-think their identification, which is more than they are doing now.
I don't think they can ethically go forward on animal control officer testimony - I would also look at writing a letter to the county attorney advising him of Cardelle and demanding they stop improperly going forward in light of Cardelle.
What is the downside to this compared to what is happening now?