Kansas dog trainer, legal allies ask court to take bite out of kennel inspection law

TOPEKA — A Winfield dog trainer asked the 10th Circuit of the U.S. Court of Appeals to resuscitate a lawsuit challenging Kansas law imposing a $200 fine when a representative of a kennel facility failed to be present within 30 minutes of a state regulator’s arrival for unannounced inspections.

Harlene Hoyt and Scott Johnson, who own and operate the state-licensed Covey Find Kennel adjacent to their Cowley County residence, initiated the federal lawsuit in October alleging state inspections under the 2018 Kansas Pet Animal Act violated constitutional rights to travel freely away from the home and to not be subjected to warrantless searches of property.

The suit against Justin Smith, the state’s animal health commissioner within the Kansas Department of Agriculture, was thrown out in May by U.S. District Court senior Judge Kathryn Vratil. The Kansas attorney general’s office, in defense of state law, requested the case be dismissed.

Vratil determined Kansas law on inspection of boarding and training kennels adhered to standards applied to businesses subjected to extensive regulation. The judge ruled state oversight of these confined animal facilities diverged from heightened privacy expectations tied to private residences. She affirmed the state established unannounced inspections to be a reasonable method of verifying whether kennels complied with the law.

Kansas Justice Institute attorney Sam MacRoberts, who represents plaintiffs in the bird-dog case, filed an appeal with the Court of Appeals. He argued one interpretation of Vratil’s ruling meant state inspectors could search homesteads without a warrant as long as the property owner trained hunting dogs. In this case, his clients operate a business specializing in training of Brittany dogs relied on to hunt wild game.

“This is a civil rights lawsuit seeking relief from an onerous, unreasonable and unconstitutional licensing and warrantless search regime that empowers Kansas government officials to enter, access and search homes, private property, private land, buildings, records and other effects of law-abiding Kansans without prior notice, without a warrant, without probable cause, without reasonable suspicion and without proper consent,” MacRoberts said in a court filing.

Kansas Justice Institute is a subsidiary of the Wichita-based Kansas Policy Institute, which lobbies for libertarian or free-market policy at the Capitol.

‘Lawsuit is absurd’

Sheila Martinsen, general counsel of the Kansas Pet Protection Coalition, said state regulations guiding inspection of kennel facilities for dog breeders and trainers weren’t an impediment to an individual’s right to travel. She said plaintiffs’ arguments didn’t make sense because state law didn’t set a cap on the number of designated representatives a kennel could appoint to deal with periodic inspections by the Department of Agriculture.

“That element of this lawsuit is absurd,” Martinsen said. “This flies in the face of long-standing precedent.”

She said frequency of no-contact visits by state inspectors had fallen since implementation of the $200 penalty fee in 2018. In the fiscal year ending in September 2017, 10.7% of visits by Kansas inspectors were derailed when facility operators failed to show up. In the most recent fiscal year ending in September 2022, the rate of no-contact infractions had declined to 4.8%.

Fifty-four percent of no-contact inspections in the 2022 fiscal year occurred at facilities that had at least one other no-contact inspection between 2018 and 2022, Martinsen said.

Under Kansas law, routine inspections by the Department of Agriculture could occur weekdays from 7 a.m. to 7 p.m. Licensees have the option of notifying animal facility inspectors by telephone, text or email when they would be away from their facility and unavailable to cooperate with inspectors. In addition, holders of state licenses for kennels may identify preferred hours of inspection when filing a license application.

Bipartisan statute

The lawsuit was predicated on a 2020 inspection of Covey Find Kennel by state regulators that occurred while Johnson was away from the dog-training complex. Hoyt, as Johnson’s designated representative, left work to be present with the inspector to avoid a $200 no-contact assessment.

The plaintiffs’ narrowly-framed lawsuit didn’t challenge state law related to breeders, pounds, shelters, animal rescues, animal foster homes, pet shops, research facilities or distributors.

The inspection statute at heart of the lawsuit was adopted by the Republican-led Kansas Legislature by margins of 116-4 in the House and 34-6 in the Senate. Gov. Jeff Colyer, a Republican, signed the bill that took effect in April 2018. State law set the $200 annual cost of operating a licensed kennel. Those documents include a provision granting a licensee’s consent to inspection by the Department of Agriculture.

The New Civil Liberties Alliance, a Washington, D.C., organization created in 2017 to “tame” administrative powers of state and federal government, submitted a brief Tuesday to the U.S. Court of Appeals in support of Johnson and Hoyt.

In that document, NCLA sought reversal of the district court in Kansas based on an argument the animal inspection law infringed on 4th Amendment rights against unreasonable searches.

Mark Chenoweth, president and general counsel at NCLA, said the Department of Agriculture’s use of licensing and inspection law amounted to trespass on private property because state officials had no requirement to first demonstrate probable cause to a judge. He echoed the plaintiffs’ notion the inspection law inhibited the right of people to free travel or movement.

“I’m not sure which is worse here, the Kansas state Legislature going overboard when it expanded this law several years back to authorize truly unreasonable searches, or the district court in this case, which bizarrely concluded that dog training and handling is a closely regulated industry that receives lesser 4th Amendment protection,” Chenoweth said.


Read Article: https://kansasreflector.com/2023/07/19/kansas-dog-trainer-legal-allies-urge-federal-court-to-take-bite-out-of-states-kennel-inspection-law/