[Cite as State ex rel. Ohio Soc. for Prevention of Cruelty to Animals, Inc. v. Harrison Cty. Bd. of Commrs., 

2011-Ohio-6029.]

STATE OF OHIO, HARRISON COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ex rel. THE OHIO ) 

SOCIETY FOR THE PREVENTION OF ) 

CRUELTY TO ANIMALS, INC., ) CASE NO. 10 HA 2 

 ) 

 RELATOR, ) 

 ) OPINION

 - VS - ) AND

 ) JUDGMENT ENTRY

BOARD OF COMMISSIONERS, et al., ) 

 ) 

 RESPONDENTS. ) 

CHARACTER OF PROCEEDINGS: Petition for Writ of Mandamus. 

JUDGMENT: Petition for Writ of Mandamus Granted in 

 part; Denied in part. 

APPEARANCES: 

For Relator: Attorney John Bell 

 2700 East Main Street, Suite 207 

 P.O. Box 091022 

 Bexley, Ohio 43209 

For Respondents: Attorney T. Shawn Hervey 

 Prosecuting Attorney 

 Attorney Michael Washington 

 Assistant Prosecuting Attorney 

 111 West Warren Street 

 P.O. Box 248 

 Cadiz, Ohio 43907 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 Dated: November 21st, 2011 
PER CURIAM. 

¶{1} In August 2010, Relator The Ohio Society for the Prevention of Cruelty to 

Animals, Inc., filed the instant mandamus action seeking an ordering forcing 

Respondents Harrison County Board of Commissioners and the Harrison County Dog 

Warden to comply with its request for public records and to comply with the 

requirements in the Ohio Revised Code for operating a dog pound. Respondents 

responded to the petition and filed a motion to dismiss. We denied the motion to 

dismiss and issued a discovery schedule. Following discovery, the parties filed 

motions for summary judgment asserting their respective positions as to why the 

petition for a writ of mandamus should or should not be granted. 

¶{2} It is settled law that in order for a writ of mandamus to issue, Relator 

must demonstrate: (1) that Relator has a clear legal right to the relief prayed for; (2) 

that Respondents are under a clear legal duty to perform the acts requested; and (3) 

that Relator has no plain and adequate remedy in the ordinary course of the law. State 

ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28. 

¶{3} Civ.R. 56(C) provides that summary judgment is properly granted when: 

(1) there is no genuine issue as to any material fact; (2) the moving party is entitled to 

judgment as a matter of law; and (3) reasonable minds can come to but one 

conclusion, and that conclusion is adverse to the party against whom the motion for 

summary judgment is made. See, also, Harless v. Willis Day Warehousing Co.

(1978), 54 Ohio St.2d 64, 66. 

¶{4} The arguments presented in the petition for a writ of mandamus and the 

parties’ motions for summary judgment can be divided into two parts – public records 

request and compliance with the Ohio Revised Code for the operation of the dog 

pound. Each will be addressed in turn. 

Public Records

¶{5} In the motion for summary judgment, Relator asserts that Respondents 

failed to comply with the R.C. 149.43 public records request. Respondents admit that 

summary judgment should be granted in Relator’s favor on this claim. It asserts: 
¶{6} “Although records were provided by Respondents, they were not 

provided in a timely fashion, and no appropriate explanation was provided as to 

records that did not exist or were not provided. As such Respondents must submit to 

a finding of Summary Judgment as to that portion of this cause of action. 

¶{7} “Defendants-Respondents request a hearing to be held to determine an 

appropriate sanction and reasonable attorney fees under the public records law. 

Respondents believe that the appropriate sanction is the $1,000.00 maximum 

allowable by law.” 

¶{8} There are requirements in Revised Code Chapter 955, titled Dogs, that 

the Dog Warden is to keep certain records. For instance, under R.C. 955.12, a dog 

warden “shall make a record of all dogs owned, kept, and harbored in their respective 

counties.” R.C. 955.12 further requires a dog warden or his deputies to “make weekly 

reports, in writing, to the board [of commissioners] in their respective counties of all 

dogs seized, impounded, redeemed, destroyed, and of all claims for damage to 

animals, fowl or poultry inflicted by dogs.” R.C. 955.16(E) provides that “[a] record of 

all dogs impounded, the disposition of the same, the owner's name and address, if 

known, and a statement of costs assessed against the dogs shall be kept by the 

poundkeeper, and the poundkeeper shall furnish a transcript thereof to the county 

treasurer quarterly.” See, also, State ex rel. Keating v. Skeldon, 6th Dist. No. L-08-

1414, 2009-Ohio-2052, ¶18. 

¶{9} The parties agree that Respondents did furnish quarterly reports, 

however, the reports did not contain all the necessary information. It is unclear 

whether Respondents withheld the report that contained all required reporting 

information or whether the records being kept were not in accordance with the 

requirements in Revised Code Chapter 955. Regardless, since Respondents admit its 

failure to comply, summary judgment is granted on the public records request. 

Furthermore, as Respondents acknowledge Relator is entitled to the maximum 

amount of statutory damages and reasonable attorney fees. R.C. 149.43(C)(1). 

Operation of Dog Pound

¶{10} The arguments concerning the operation of the dog pound encompasses 

many subarguments regarding certain alleged requirements in Revised Code Chapter 
955 and 959. These include record keeping, notice of redemption, application of 

Revised Code Chapter 959 to Respondents, euthanasia, veterinary care, posting 

hours of operation, and funding. Each will be addressed in turn. 

Record Keeping

¶{11} The first argument made by Relator is that the dog pound’s record 

keeping does not comply with Revised Code Chapter 955. Respondents concede that 

it has not previously complied with Revised Code Chapter 955 in keeping the 

appropriate records and that there is clear legal duty to keep such records. As 

previously discussed under the public records analysis there is a clear legal duty to 

keep records and Respondents have failed to comply with that duty. As such, we are 

in agreement with both parties that a writ must be ordered on this issue. 

Notice of Redemption

¶{12} Relator’s second argument as to the operation of the dog pound 

concerns Respondents compliance with R.C. 955.12’s requirement that owners of 

impounded dogs must be given notice of the impoundment and ability of redemption. 

Throughout the proceedings, Respondents have admitted that it does not notify the 

owner by certified mail of the impoundment. (Depo. Of Barbara Pincola, Commrs. Pg 

27). Rather, it telephones the owner. 

¶{13} “A.(Commissioner Pincola) I mean, you have to understand what I said 

earlier that we are funded by dog license, $12 a dog, and we – and that is one person 

that we have who is taking care of all the dogs and doing all – you know, the runs and 

verifying all of this and then trying to get this in there. We don’t have a budget. That’s 

why we use the phone, and it works. We are a small enough county that – like he 

said, half the time you see the dog and you go, oh, Joe’s dog’s loose again, and you 

just drop it back off to Joe because its’ just the way this – these smaller rural areas 

operate.” (Depo. 28). 

¶{14} R.C. 955.12 states, in pertinent part: 

¶{15} “Whenever any person files an affidavit in a court of competent 

jurisdiction that there is a dog running at large that is not kept constantly confined 

either in a registered dog kennel or on the premises of an institution or organization of 

the type described in section 955.16 of the Revised Code or that a dog is kept or 
harbored in the warden's jurisdiction without being registered as required by law, the 

court shall immediately order the warden to seize and impound the dog. Thereupon 

the warden shall immediately seize and impound the dog complained of. The warden 

shall give immediate notice by certified mail to the owner, keeper, or harborer of the 

dog seized and impounded by the warden, if the owner, keeper, or harborer can be 

determined from the current year's registration list maintained by the warden and the 

county auditor of the county where the dog is registered, that the dog has been 

impounded and that, unless the dog is redeemed within fourteen days of the date of 

the notice, it may thereafter be sold or destroyed according to law. If the owner, 

keeper, or harborer cannot be determined from the current year's registration list 

maintained by the warden and the county auditor of the county where the dog is 

registered, the officer shall post a notice in the pound or animal shelter both describing 

the dog and place where seized and advising the unknown owner that, unless the dog 

is redeemed within three days, it may thereafter be sold or destroyed according to 

law.” (Emphasis added). 

¶{16} Given the language of the statute, certified mail is required. We cannot 

find that a phone call is equivalent to the certified mail requirement. While the budgets 

of these more rural counties are clearly limited, we cannot change the clearly 

mandated requirement of certified mail. The general assembly can rewrite the law, not 

this court. Thus, calling an owner does not comply with R.C. 955.12’s mandate that 

the dog warden is to notify the owner of a seized and impounded dog by certified mail 

of the dog’s impoundment and the owner’s ability to redeem the dog. Accordingly, 

based upon that statute and Respondents’ acknowledgment that it is not fully 

complying with the statute, a writ of mandamus is warranted on this issue. 

Application of Revised Code Chapter 959 to Respondents

¶{17} Under this argument, Relator asserts that Revised Code Chapter 959 

and its prohibitions against animal cruelty apply to Respondents. Respondents assert 

that Revised Code Chapter 959 is a criminal statute and the determination of whether 

anyone, including the dog warden, has committed an act in violation of that Chapter is 

for the county prosecutor to determine, not this court. 
¶{18} Revised Code Chapter 959 is titled Offenses Related to Domestic 

Animals. It contains criminal statutes. Respondents are correct that a writ of 

mandamus is not the appropriate vehicle for this court to issue a finding that a person 

or government entity violated a criminal statute. Furthermore, mandamus will not 

issue to compel someone to follow the law generally. State ex rel. Lewis v. Bd. of 

Jackson Cty. Commrs., 4th Dist. No. 98CA830, 2002-Ohio-1424. Thus, we will not 

issue mandamus to state that Revised Code Chapter 959 applies to Respondents or 

to state that Respondents, either in their public positions or as individual citizens 

violated Revised Code Chapter 959. 

¶{19} That said, when dissecting the arguments it appears what Relator is 

actually asserting is that there is a clear legal duty for Respondents to provide a 

“suitable” pound. In asserting that, it contends that R.C. 959.131 should be used to 

determine what is “suitable” and that the Harrison County Dog Pound is not suitable 

because it violates R.C. 959.131. In the complaint, and in affidavits attached to the 

response to the motion to dismiss, there were allegations that the facility had no 

exterior walls or heat, the pens were not cleaned (they were covered in dog feces and 

urine), and there were no attempts to sanitize the pens. There was an allegation that 

because of the lack of shelter that a dog got frost bite. Relator contends that some of 

these, if not all, constitute animal cruelty as defined by R.C 959.131, and as such, 

Harrison County Pound is not “suitable.” 

¶{20} Relator is correct that there is a clear legal duty to provide a “suitable” 

pound. R.C. 955.15, which all parties agree is applicable, states: 

¶{21} “The board of county commissioners shall provide nets and other 

suitable devices for the taking of dogs in a humane manner, provide a suitable place 

for impounding dogs, make proper provision for feeding and caring for the same, and 

provide humane devices and methods for destroying dogs.” 

¶{22} However, Revised Code Chapter 955 does not define the word 

“suitable.” 

¶{23} R.C. 959.131, which is the companion animal cruelty statute (which 

applies to dogs), states: 
¶{24} “(C) No person who confines or who is the custodian or caretaker of a 

companion animal shall negligently do any of the following: 

¶{25} “(1) Torture, torment, needlessly mutilate or maim, cruelly beat, poison, 

needlessly kill, or commit an act of cruelty against the companion animal; 

¶{26} “(2) Deprive the companion animal of necessary sustenance, confine the 

companion animal without supplying it during the confinement with sufficient quantities 

of good, wholesome food and water, or impound or confine the companion animal 

without affording it, during the impoundment or confinement, with access to shelter 

from heat, cold, wind, rain, snow, or excessive direct sunlight, if it can reasonably be 

expected that the companion animal would become sick or suffer in any other way as 

a result of or due to the deprivation, confinement, or impoundment or confinement in 

any of those specified manners.” 

¶{27} Relator cites this court to an Ohio Attorney General opinion for an 

indication that R.C. 959.131 can be used to define a “suitable” place of impoundment. 

The Honorable Kevin J. Baxter, 1995 Ohio Op. Atty. Gen. 95-021. In that case, the 

attorney general was asked to define what “suitable place” as used in R.C. 955.15 

meant. The attorney general indicated that “suitable place” was not defined by statute 

and thus common usage should be used to determine what it means. Id. It then 

referenced Black’s Law Dictionary’s definition as “fit and proper for the end in view.” Id. 

It then drew the conclusion that “with respect to a dog pound, the board of county 

commissioners has the discretion to determine what is suitable, so long as the place 

provided has, at a minimum, the features necessary to enable the county or its officers 

and agents to fulfill their mandatory duties with respect to the impoundment of dogs.” 

Id. 

¶{28} The opinion goes on to discuss that a dog pound is required to keep a 

dog from 3 to 16 days and in some cases longer if the dog was treated inhumanely by 

its owner. Id. In that case, the animal would be held until animal cruelty charges were 

resolved. The opinion then references R.C. 959.13, which is the general law on 

cruelty to animals. The attorney general then concluded: 

¶{29} “Stated affirmatively, the facility must be a place where it is possible to 

provide the impounded dogs with a sufficient quantity of good wholesome food and 
water, access to shelter from wind, rain, snow or excessive direct sunlight; wholesome 

exercise and change of air, and freedom from unnecessary pain and suffering.” Id. 

¶{30} While the above case discusses R.C. 959.13, the general law on cruelty 

to animals, and does not discuss R.C. 959.131, the companion animal cruelty statute, 

we do not find that that difference makes the reasoning less persuasive. R.C. 959.13 

and R.C. 959.131 contain the same requirements regarding shelter for an animal. 

¶{31} That said, in 2002, the Fourth Appellate District reviewed the Attorney 

General’s Baxter opinion. Lewis, 4th Dist. No. 98CA830, 2002-Ohio-1424. It found 

that the Baxter opinion was not enlightening: 

¶{32} “The Attorney General's opinion is a simple restatement of the statute, 

with little guidance as to what conditions might make the facility unsuitable or result in 

‘cruelty to animals.’ Relator has not introduced any evidence of specific standards or 

minimum conditions that characterize or identify a ‘suitable place,’ or introduced 

specific evidence of general operations that may constitute cruelty to animals, except 

for conditions surrounding the pound's drop-off capability and allegations of unlawful 

and inhumane destruction of dogs, which are addressed below. Absent any 

controlling case law, mandatory guidelines in the statute or some evidence that 

defines a suitable place, we cannot issue a writ. Mandamus will not issue to compel 

Respondents to follow the law generally. Cullen v. State (1922), 105 Ohio St. 545. 

Had we been presented with some evidence of well-recognized minimum standards or 

specific evidence of cruelty, our decision might be otherwise. However, under the 

existing record, the commissioners of the county in which the dog pound is located are 

in a better position to determine what type of facility will fulfill their county's needs.” Id. 

at ¶21. 

¶{33} Here, we have allegations of unsanitary conditions and no shelter. Thus, 

we find the case at hand to be distinguishable from Lewis because there are specific 

allegations of unsuitableness. Furthermore, although the Attorney General’s Baxter

opinion is not binding, we find its reasoning to be logical. A suitable dog pound must 

be a place that would not constitute cruelty to the dog as defined in R.C. 959.131. 

Therefore, to a certain extent R.C. 959.131 is applicable to the dog warden; its 

applicability is to give guidance of what is a suitable place to impound a dog. 
¶{34} The information obtained through affidavits attached to Relator’s filings 

indicates that the alleged inhumane conditions and unsuitability of the pound occurred 

under prior warden, Carl Stewart. Respondents assert that improvements have been 

made to the pound, including a new warden. Its filings confirm such a position. 

¶{35} Attached to the January 31, 2011, Response to the Request for 

Production of Documents is the Harrison County Dog Pound Operational Manual and 

pictures of the dog pound taken on January 10, 2011, which are accompanied by an 

affidavit from the county prosecutor authenticating the pictures. Also, attached to 

Respondents’ Reply to Relator’s Motion in Opposition to Respondents’ Motion for 

Summary Judgment is an affidavit from the current dog warden and pictures showing 

the condition of the pound on June 24, 2011. 

¶{36} At the outset, it must be noted that the documentation attached to the 

reply should have been attached to Respondents’ Motion in Opposition to Relator’s 

Motion for Summary Judgment and its own Motion for Summary Judgment. That said, 

considering that the pictures and accompanying affidavit are proper evidence under 

Civ.R. 56, we will consider them. 

¶{37} Current dog warden Tina DeWalt’s affidavit provides: 

¶{38} “3. In performance of my duties I clean and sanitize all cage holding 

impounded dogs at least once per day and feed all dogs two times daily, including 

Saturdays and Sundays. If I am not available for the aforementioned cleaning and 

feeding, it is performed by a volunteer. 

¶{39} “4. Over and above my statutory duties I walk all impounded dogs daily 

and also provided them with exercise time in the dog pound fenced in grass area. 

¶{40} “5. From June 2010 through 24 June 2011, the Harrison County Dog 

Pound has successfully placed 163 dogs through adoption either to the general public 

or through rescue organizations. Zero dogs have been euthanized during the same 

period of time. 

¶{41} “6. The attached photographs marked as exhibits A, B, C, and D are fair 

and accurate depictions of the Harrison County Dog Pound as it appeared on 24 June 

2011, and have not been doctored or modified in any way. Said photographs show 

the cleanliness and general condition of the dog pound.” 
¶{42} This affidavit provides that the animals are fed and the pound is cleaned. 

The Dog Pound Manual, attached to the Response to the Request for Production of 

Documents, also provides that the Pound is cleaned and Dogs are Fed. The Manual 

is even more specific in the manner of cleaning. For instance, it provides that hot 

water and disinfectant is to be used on the run/kennel/boxes and that the food and 

water for consumption at no time is to be exposed to disinfectant. 

¶{43} The January and June 2011 pictures do appear to depict a clean dog 

pound, albeit smells cannot be depicted from pictures. It appears that the pound does 

provide some pens that are inside. Other pens could be classified as semi-outside. 

These pens are located in a structure that could be described as a shelter – there is a 

roof, but not sides on the building. The pens that are located in the shelter have dog 

houses in each pen. There are other pens that are entirely outside, but these pens 

have what appears to be a tarp covering them for protection from the elements. These 

pens, like the semi-outside pens, have dog houses in them. 

¶{44} All the above demonstrates that the pound is suitable as defined by the 

Attorney General’s Baxter opinion; the affidavit of the current dog warden and the 

pictures show that the dogs are being fed and watered, have exercise and have a 

shelter. Nowhere in the statute does it say that a dog must be kept in an inside facility. 

The statute reads that there must be shelter from nature’s elements if it can 

reasonably be expected that the animal would otherwise become sick or in some other 

way suffer. That shelter can be a “man-made enclosure, windbreak, sunshade or 

natural windbreak or sunshade that is developed for the earth’s contour, tree 

development or vegetation.” R.C. 959.131(A)(2). The semi-enclosed shelter that has 

dog houses in each pen provides such shelter. The same can be said for the outdoor 

pens. Those pens do provide protection from the elements by means of a tarp. There 

is nothing in the statute to remotely indicate that such structures are not shelters. 

¶{45} We acknowledge that Relator filed a supplemental reply in response to 

Respondents’ reply to summary judgment. Attached to the supplemental reply are a 

picture and a Facebook print out. These items are not proper evidence for summary 

judgment under Civ.R. 56. They are not accompanied by an affidavit, nor were they 

exhibits admitted and used during a deposition. Without an affidavit accompanying the 
picture, we cannot be sure if it is of the Harrison County Dog Pound and when it was 

taken. Furthermore, even if we could consider the picture, it is dark and it is unclear 

exactly what it is supposed to be depicting. 

¶{46} Therefore, given the evidence submitted, summary judgment on this 

issue is granted to Respondents. We will not issue a writ ordering Respondents to 

provide a suitable dog pound, since the authenticated pictures and affidavit 

demonstrate a suitable dog pound. That said, given Respondents acknowledgement 

of practices that occurred under prior wardens, some of which may very well constitute 

unsuitability, we caution Respondents to maintain a suitable pound or a writ could be 

issued against them in future litigation. 

Euthanasia

¶{47} There are allegations in the petition for a writ of mandamus about 

unnecessary killing of dogs and of use of a homemade gas box to kill the dogs. 

Starting with the gas box, it is alleged that this is not a humane way to destroy a dog 

and violates R.C. 955.16(F), which provides: 

¶{48} “No person shall destroy any dog by the use of a high altitude 

decompression chamber or by any method other than a method that immediately and 

painlessly renders the dog initially unconscious and subsequently dead.” 

¶{49} The evidence indicates that the gas box is no longer used and has been 

scrapped. (Piccola Depo. 51). The filings also indicate that the means of euthanasia 

will be injection. Dog Pound Manual attached to Response to Production of 

Documents. Thus, any allegation that Respondents are violating a clear legal duty 

euthanizing a dog through a homemade gas box is moot. 

¶{50} As to unnecessary killings, this argument encompasses the allegation 

that dogs were destroyed prior to the mandated time limits for redemption. Revised 

Code Chapter 955 does mandate how many days a dog must be kept before it is 

destroyed. The affidavit of the current warden establishes that no dogs have been 

euthanized from June 2010 until June 24, 2011. Therefore, it does not seem that 

there have been any unnecessary killings. However, as previously indicated, in the 

past proper records were not kept. Thus, it is difficult to determine if the dogs were 
kept the required time. Given the lack of record keeping, Respondents concede that a 

writ should be issued as to unnecessary killings. 

¶{51} Accordingly, given Respondents concession and the lack of records, we 

will issue a writ on this matter. However, our order will not encompass a mandate that 

a healthy dog cannot be destroyed. Relator is of the position that destruction of a 

healthy dog is inhumane and constitutes an unnecessary killing. We disagree. R.C. 

955.16 provides that a healthy dog may be destroyed humanely if all efforts to place 

the dog have failed and the time period mandated in that statute has expired. Thus, 

as that statute clearly permits destruction, we cannot issue a writ contrary to the 

general assembly’s mandate. 

Veterinary Care

¶{52} Relator asserts that Respondents have a duty to provide veterinary care 

for injured or distressed dogs. An express duty to provide veterinary care is listed 

under R.C. 955.16. It states: 

¶{53} “(A) Dogs that have been seized by the county dog warden and 

impounded shall be kept, housed, and fed for three days for the purpose of 

redemption, as provided by section 955.18 of the Revised Code, unless any of the 

following applies: 

¶{54} “(1) Immediate humane destruction of the dog is necessary because of 

obvious disease or injury. If the diseased or injured dog is registered, as determined 

from the current year's registration list maintained by the warden and the county 

auditor of the county where the dog is registered, the necessity of destroying the dog 

shall be certified by a licensed veterinarian or a registered veterinary technician. If the 

dog is not registered, the decision to destroy it shall be made by the warden.” 

¶{55} There are no clear specific allegations that this duty was violated. 

Despite that, Relator asserts, “Respondents do not advance any argument as to how 

they could operate a ‘suitable place’ for impoundment of animals which does not 

violate Chapter 959 of the Revised Code without veterinary participation beyond the 

express requirements of section 955.16(A)(1).” 

¶{56} The problem with this position is that there must be a clear legal duty for 

veterinarian participation and a violation of that duty before this court can issue a writ. 
The only required veterinarian participation in Revised Code Chapter 955 is in R.C. 

955.16. Furthermore, nowhere in R.C. 959.131 does it require veterinarian 

participation for the pound to be a “suitable place.” Likewise, the Attorney General’s 

Baxter opinion did not explicitly require veterinarian participation. All that was required 

is freedom from unnecessary pain and suffering. The Honorable Kevin J. Baxter, 

supra. Freedom from unnecessary pain and suffering does not necessarily require 

veterinarian participation. Some injuries or ailments may be able to be cared for by 

the warden. Thus, it would be a discretionary decision as to whether a veterinarian is 

needed. Therefore, as it is discretionary, we cannot find that there is a clear legal duty 

requiring veterinary participation other than that in R.C. 955.16(A). Furthermore, as 

there is no clear allegation of how the duty under R.C. 955.16(A) was violated, a writ of 

mandamus does not lie. Accordingly, summary judgment on this issue is granted in 

favor of Respondents. 

Posted Hours of Operation

¶{57} In Lewis, the court issued a mandamus on posting hours of operation. It 

explained: 

¶{58} “According to R.C. 955.15, the county commissioners ‘shall provide * * * 

for the taking of dogs in a humane manner, provide a suitable place for impounding 

dogs, make proper provision for feeding and caring for the same, and provide humane 

devices and methods for destroying dogs.’ Nothing in this statute expressly requires 

the commissioners or the dog warden to post the pound's operational hours. However, 

it would seem implicit to post the hours for the public's convenience given owners' 

rights of redemption under R.C. 955.12, 955.16 and 955.18. Those redemption rights 

may be severely limited if the hours of operation of the pound are limited as 

respondents have admitted. Accordingly, we issue a writ of mandamus requiring the 

commissioners to post the pound's operational hours, including those times when 

someone is normally there, and phone number.” Lewis, supra, ¶22. 

¶{59} We find this reasoning to be sound and adopt as our own. Accordingly, 

issuance of a writ of mandamus on this issue is warranted. 
Funding

¶{60} Relator appears to assert that the dog pound is underfunded and that the 

Commissioners must provide more funding for the dog pound. 

¶{61} R.C. 955.20 provides: 

¶{62} “The registration fees provided for in sections 955.01 to 955.14 of the 

Revised Code constitute a special fund known as ‘the dog and kennel fund.’ The fees 

shall be deposited by the county auditor in the county treasury daily as collected and 

shall be used for the purpose of defraying the cost of furnishing all blanks, records, 

tags, nets, and other equipment, for the purpose of paying the compensation of county 

dog wardens, deputies, poundkeepers, and other employees necessary to carry out 

and enforce sections 955.01 to 955.261 of the Revised Code, and for the payment of 

animal claims as provided in sections 955.29 to 955.38 of the Revised Code, and in 

accordance with section 955.27 of the Revised Code. The board of county 

commissioners, by resolution, shall appropriate sufficient funds out of the dog and 

kennel fund, not more than fifteen per cent of which shall be expended by the auditor 

for registration tags, blanks, records, and clerk hire, for the purpose of defraying the 

necessary expenses of registering, seizing, impounding, and destroying dogs in 

accordance with sections 955.01 to 955.27 of the Revised Code, and for the purpose 

of covering any additional expenses incurred by the county auditor as authorized by 

division (F)(3) of section 955.14 of the Revised Code. 

¶{63} “If the funds so appropriated in any calendar year are found by the board 

to be insufficient to defray the necessary cost and expense of the county dog warden 

in enforcing sections 955.01 to 955.27 of the Revised Code, the board, by resolution 

so provided, after setting aside a sum equal to the total amount of animal claims filed 

in that calendar year, or an amount equal to the total amount of animal claims paid or 

allowed the preceding year, whichever amount is larger, may appropriate further funds 

for the use and purpose of the county dog warden in administering those sections.” 

¶{64} While this statute provides that the Commissioners may pass a 

resolution to increase the funding, that is only done when the Commissioners deem 

the statutory amount insufficient. This is clearly a discretionary call. When the 

decision is purely within the discretion of the board, issuance of a writ is not warranted 
because there is no clear legal duty. Lewis, supra, at ¶33 (discussing the discretionary 

decision to hire additional staff). 

¶{65} Therefore, we will not issue a writ ordering the Commissioners to 

increase funding for the pound. Summary judgment on this issue is granted in favor of 

Respondents. 

ORDER

¶{66} Accordingly, it is the order of this court that each party’s motion for 

summary judgment is granted in part and denied in part. 

¶{67} Relator is granted summary judgment on the public records request. 

Respondents are ordered to pay Relator statutory damages in the amount of $1,000. 

R.C. 149.43(C)(1). Relator is also entitled to reasonable attorney fees on this issue. 

Relator is ordered to file an itemized statement for attorney fees within 30 days of the 

time stamped date on this entry. Respondents shall have 14 days to respond. If the 

parties do not agree on reasonable attorney fees this court may order oral argument 

on the issue. 

¶{68} Respondents are granted summary judgment on the issues of suitability 

of the dog pound, inhumane euthanasia, veterinarian care and funding of the dog 

pound. As discussed in depth above, Relator is not entitled to a writ of mandamus on 

these issues because either it has failed to establish that there is a clear legal duty or it 

has failed to show that there is violation of a clear legal duty. 

¶{69} That said, as explained supra, Relator has established and Respondents 

have conceded that there is merit with some of the issues raised in the petition for a 

writ of mandamus. Accordingly, based on the above reasoning we issue the following 

orders: 

1. Respondents shall make and maintain records as is 

required by Revised Code Chapter 955. 

2. Respondents shall comply fully with R.C. 955.12, including 

the mandate that the owner of a seized and impounded dog 

to be notified by certified of mail of the dog’s seizure and 

impoundment and of the ability of the owner to redeem the 

animal. 
3. Respondents shall hold all impounded animals for the 

required redemption periods specified in Ohio Revised Code 

Chapter 955. Respondents shall also make the statutorily 

required efforts to place unclaimed animals in research 

facilities prior to destruction as is provided in Ohio Revised 

Code Chapter 955. 

4. Respondents shall observe and post hours of operation 

and shall post a public phone number for the pound. It is 

within Respondents’ discretion to limit public access to the 

pound for public safety and security concerns. 

¶{70} IT IS SO ORDERED. 

¶{71} Final order. Clerk to serve notice as provided by the Civil Rules. 

Vukovich, J., concurs. 

Waite, P.J., concurs. 

DeGenaro, J., concurs.