VERIFIED PETITION AND
COMPLAINT - 1
ANIMAL LAW OFFICES OF
ADAM P. KARP, ESQ.
114 W. Magnolia St., Ste. 425 ! Bellingham, WA 98225
(360) 738-7273 ! Facsimile: (360) 392-3936
adam@animal-lawyer.com
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF ISLAND
IN RE THE MATTER OF SMILEY, a neutered
male mixed breed dog:
BARBARA MORAN and ROBERT BAKER,
Plaintiffs,
vs.
WHIDBEY ANIMALS’ IMPROVEMENT
FOUNDATION (WAIF), INC., a Washington
nonprofit corporation with UBI 601-280-775;
JURISDICTION, PARTIES, AND VENUE
1. This court has subject-matter jurisdiction over this action.
2. Petitioner-Plaintiff BARBARA MORAN (“Moran”) and ROBERT BAKER
(“Baker”), collectively referred to as “Petitioners,” are taxpayers, property owners, and
residents of Island County.
3. Defendant WHIDBEY ANIMALS’ IMPROVEMENT FOUNDATION (WAIF),
INC. (“WAIF”), is a Washington nonprofit corporation transacting business in Island County,
with UBI 601-280-775, operating animal shelters in Coupeville and Oak Harbor. With respect
to its contract to provide animal sheltering services to Island County and the City of Oak
Harbor in compliance with local law, in government-owned facilities, whereby it receives most
if not all its funding from public sources, WAIF is a quasi-governmental agency and state actor.
4. Petitioners seek judicial review of the decision by WAIF to deny their adoption
application for a mixed breed, male dog named Smiley, who has been detained at WAIF’s
Coupeville facility since March 29, 2007.
5. WAIF’s decisions at issue satisfy the four-part test of Standow v. Spokane, 93
Wn.2d 329 (1980), which addresses whether a local government decision is judicial in nature.
As an inferior tribunal exercising judicial functions, and without the availability of another
avenue of review or adequate remedy at law, the Superior Court has jurisdiction pursuant to
RCW 7.16.040 and Clark County Public Utility Dist. No. 1 v. Wilkinson, 139 Wash.2d 840
(2000).
6. This matter is properly venued.
7. This court has personal jurisdiction over the named defendants.
GENERAL ALLEGATIONS
8. Baker is a retired psychologist, former police chief, and Vietnam War combat
veteran. Following passage of Public Law 96-22 in 1979, establishing centers for Vietnam vets,
Dr. Baker was one of the first Vet Center directors in the nation, running the one in San Diego,
Calif. Baker trained counselors in many fields and was a founding board member of the
International Association of Trauma Counselors (now called the Association of Traumatic
Stress Specialists). In 1992, Baker became clinical coordinator of the VA’s national Center for
PTSD in Menlo Park, Calif., where he worked till retirement.
9. Moran has a Masters’ Degree in Instructional Technology from San Francisco
State University and Bachelor’s Degree in Telecommunications from Kent State University.
She is presently a part-time college instructor of journalism, multimedia communications, and
English, author of several texts concerning multimedia text and presentations, a freelance
writer and editor, and former staff writer for The San Diego Union, The Atlanta Constitution,
and The DeKalb New Era.
10. Baker and Moran formed Operation TeddyCare in 1995, an organization that
provides teddy bears to qualified counselors, medical professionals, rescue and law
enforcement personnel to give to kids impacted by conflicts, war, violence, neglect, natural
disasters, accidents, or life-threatening illness.
11. WAIF contracted with Island County as its sole entity to “operate an animal
shelter to provide care and housing for animals that have been impounded by Island County
Animal Control Contractor,” including to handle redemption, adoption, and euthanasia of stray
and surrendered animals. Contractually, it is bound by Title 6 of the Island County Code.
12. WAIF uses county-owned facilities at 20168 SR 20 in Coupeville. Pursuant to
contract, all fees, including those for owner-surrendered animals and adoptions, must be
accounted for and remitted to the Island County Treasurer.
13. WAIF’s articles of incorporation emphasize its role as a public resource for
“lost, abandoned and surrendered domestic animals.” Its bylaws amplify this position by
identifying “specific objectives” to include: “To operate a minimum-kill animal shelter;” “To
provide the best care possible while actively seeking adoptive homes for the animals in our
trust;” and “To develop programs to benefit needy companion animals,” among others.
On February 13, 2007, the dog who is the subject of this action was impounded
for running at-large in Island County. At intake, WAIF staffed described him as a “Very nice
dog!”
The Incoming Animal Receipt dated March 27, 2007 identifies Smiley as a
“Rottweiler” (primary breed) and “Shepherd” (secondary breed). While other WAIF
documentation asserts that Smiley is part pit, this breed designation always appears as a
designation with Rottweiler and German Shepherd.
On March 29, 2007, Mr. Bernard Perez surrendered ownership of Smiley to
WAIF. Mr. Perez notes that Smiley got along with children under 10, other dogs (male), other
dogs (female), teenagers, had never bitten another animal or person, had lived with other dogs,
knew how to sit, stay, walk nice on a leash, come when called, lay down, fetch, and jump.
WAIF’s Euthanasia Policy effective December 15, 2003 states, “[WAIF’s]
euthanasia policy is a measure of ‘last resort’, when all other options have failed.”
Smiley was impounded two more times for running at-large on February 28 and
March 27, 2007.
Smiley has never been declared a potentially dangerous or dangerous dog.
Smiley has never bitten a person or animal.
Smiley has never injured a person or animal.
Smiley has been held at the Coupeville facility, in a small kennel, for the past 19
months.
Smiley has been profiled on WAIF’s website as a “favorite with both staff and
volunteers!” The posting thanks various financial sponsors of Smiley and adds that he is “very
well house-trained, and knows ‘sit,’ ‘down,’ and how to play fetch, although he’s just as happy
to sit close to be petted. … Smiley loves to go for walks, and although a muscular dogs, walks
easily on a loose leash. He’s waiting to become your best friend for life – so much so that he
sometimes jumps in his cage to try to catch your attention! That’s dog-speak for “get me out of
here, now please!”
24. Staff and volunteers have documented how extremely well housebroken Smiley
is, noting that this is a reason why he will not urinate or defecate in his small kennel. As a
result he jumps up at the kennel door to be taken outside for a walk. One entry in the Daily Dog
Tracking Log states, “4-12: He would rather die than piss/poop in his cage – needs to walk
every day.” Another entry says, “4-17: Needs to get out for Pee/Poop walks at least (illegible);
Urine very concentrated (very yellow) & belly distended, until 3 poops & a gallon of pee.”
25. This posting was on the WAIF website until on or about November 7, 2008, the
day that WAIF’s attorney Mark Theune notified Petitioners’ attorney Adam Karp that WAIF
would kill Smiley on Thursday, November 13, 2008.
26. Daily Dog Tracking Logs maintained by WAIF confirm that since detention on
March 27, 2007, Smiley was a good dog. The dates associated with the following entries are as stated
unless a “?” appears, in which case only the year of the entry is uncertain: (1/29/08:
“Smiley walked very well with Georgia Peaches today. He was very calm even when Georgia
was bouncy or put her foot on Smiley’s back.”; 2/25/08: “Very easy to walk + very responsive
to her name; sits automatically quite often so lots of treats recommended. Wonderful
personality + will make a good pet for someone.”; 3/29/08: “Such a good boy!”; 4/15/08:
“Smiley is a great dog. What a sweetheart”; 4/17: “PS He was GREAT
at the marathon – very
well-mannered”; 4/27: “great dog & affectionate”; 4/29/08: “Ate some grass at first but then
quit. Very good on leash and m y personal experiences, he’s getting close to a lvl 3 as he seems
to tug less than Lucy. Spicey (Smiley) is a very sweet dog & disposition to go with his personality. He
responds very well to praise. He’s had a good start with life!”; 6/11/07 (?): “Real sweet dog!
Nice walker – sits for treats – calm- doesn’t’ know how to play in pen. Pees + poop a lot”;
6/26/07(?): “Working on ‘look at me’ to get him walking beside me. He’s a very attentive dog.
Waits @ doorway nicely.”; 8/20/07(?): “Smiley is always a great dog to walk & really enjoys
getting out.”; 8/30/08: “I took Smiley to the yard with a customer w/ child – didn’t know he
was ‘restricted.’ Smiley was friendly & polite with no aggression.”; 9/30/08: “Walked Smiley
with Hope today. Both did very well.”
27. Moran and Baker have contributed approximately $20,000 in donated time and
money to WAIF since moving to Island County from California.
28. Baker volunteered as WAIF’s interim executive director for nearly four months
from April to July 2007.
29. Moran took dramatic steps to improve WAIF’s image in the community through
television shows, e-cards, flyers, and other projects intended to fulfill WAIF’s professed
mission. Moran prepared WAIF’s newsletter, applying her skills as a veteran reporter to
produce a periodical that would enhance WAIF’s reputation and bring in donations.
30. Moran and Baker also participated in WAIF’s short-lived Pit Bull Committee,
which was disbanded without explanation. While attending a session of this committee, Bibich
and Animal Control Officer Peg Diefert began to discuss how pit bulls can “snap” at any time.
Diefert said they should probably all be euthanized, even the ones on WAIF’s website. Bibich
reluctantly agreed, suggested it might be best to euthanize them periodically so as to “not upset
the volunteers.” Subsequent to that meeting, dogs WAIF identified as pit bulls or pit mixes did,
indeed, begin being euthanized periodically. Their images would simply disappear from the
website. Smiley was one of the alleged pit mixes and Baker and Moran grew increasingly
concerned that he, too, would “disappear.”
31. Baker attempted to coordinate the purchase of an exceptionally suitable shelter
at a significantly reduced cost that pales in comparison to WAIF’s multi-million dollar
campaign for a new shelter with apparently little chance of coming to fruition. During the
Petitioners’ involvement in WAIF management, they noticed several inefficiencies,
inconsistent protocols, and decisions by staff leaving them confused and dismayed. Being
animal lovers with a demonstrated history of serving them and their shelters well in California,
they spoke up with constructive criticism by directing their comments to Shari Bibich
(“Bibich”), WAIF’s shelter operations manager, and other staff and board members. Such
selflessness was rewarded by dismissal with a brief cell phone call from WAIF’s then-President
Robin Doucette.
On or about October 2007, Baker spoke to Bibich about fostering Smiley. This
request was rejected without explanation.
33. On or about April 14, 2008, Baker revisited his earlier request to adopt Smiley,
after expressing dismay that Smiley had languished at WAIF for nearly six months since the
foster proposal. See Exhibit 1, attached.
34. While living in California, prior to retiring to Whidbey Island, the Petitioners
had a sterling reputation and worked loosely with a group of veterinarians (who still
recommend them) to shelter and rehabilitate “special needs” animals, including but not limited
to dogs with behavioral problems, and animals with physical limitations (such as a blind
Sheltie, orphaned lamb, and crippled goat). This reputation has been maintained after moving
to Washington.
35. Baker and Moran are co-chairs and founders of the Pitbull/Mix Information
Taskforce (“PIT”). This organization is devoted to earning respect from governments, shelters,
owners, and breeders for all “bully” breeds, opposing slaughter of any breed or mixed breed
based on appearance, and supporting spay and neuter programs.
36. At the time of requesting to adopt Smiley, the Petitioners had a rooster (who
they claimed would be transferred to another home should Smiley be adopted and would
otherwise never be exposed to Smiley), a pit bull female named Katrina (adopted from WAIF
in 2007), a passive 10-year-old Boxer/Chow, neutered male named Smoochie, and an toy fox
terrier with a terminal heart condition.
In order to adopt Katrina, WAIF had the Petitioners complete an adoption
application, and participate in a face-to-face meeting between Katrina and Smoochie
38. WAIF and Bibich did not offer Baker and Moran an adoption application form
for Smiley. Bibich also refused to make a home visit or send any qualified representative
despite such a request from the Petitioners. Bibich said she heard that the Petitioners had
livestock, chickens, and a rat terrier, when in truth, at the time of requesting to adopt Smiley,
the Petitioners had no livestock, one rooster, and a dying toy fox terrier named Mindy, whom
they would have been happy to disclose in an adoption application. Such an application was
never offered to the Petitioners and they were not given a chance to explain their situation in
writing, particularly since Mindy was close to death and living in the bathroom. The Petitioners
would have shown Bibich the circumstances but she refused to conduct a home visit.
Meanwhile, the Petitioners committed to building a separate enclosure for Smiley, where he
would not come into contact with any other animals. They knew that Mindy would die soon
and were prepared to transfer the rooster to a friend’s farm, but were prepared to incur
considerable expense to ensure that Smiley lived in his own quarters.
39. Over the phone, Bibich said that the Petitioners’ fencing was “inadequate,”
referencing unnamed sources that were incorrect, particularly given that Bibich had not
solicited an adoption application from the Petitioners. At the time Bibich made this comment,
the Petitioners had a secure, 6’ spiked fence augmented with additional cattle fencing, and
represented to Bibich that one person would always be home with Smiley so he was never left
alone. Bibich also refused to entertain the idea of Smiley being kept totally separate from other
animals, despite the Petitioners’ repeated commitment to build Smiley his own secure
enclosure at their sole expense of an estimated $3500 so that he would never encounter other
animals and which would be far more sanitary and spacious than the one in which he has been
kept since March 29, 2007. Petitioners also tried to explain their experience using a “jump
halter” with dogs, but Bibich refused to discuss it with the Petitioners.
40. Further, Petitioners’ repeated requests for a home visit to help plan a WAIF-
approved structure were denied, despite the fact that their experience in this area is extensive.
In California, the Petitioners’ property was safely sectioned into separate quarters for animals
ranging from dogs, cats, sheep, a goat, chickens, turtles, fish, and birds. They worked closely
with veterinarians to ensure the health and safety of all their charges. At no time were there
ever any injuries, complaints, or actions filed in relation to their rescue arrangements. In fact,
they were supported by neighbors there who still recommend them for their 30-year
commitment to animals in need.
41. Bibich also refused to permit Smiley to go on a parallel walk with Smoochie and
Katrina, in order to test his temperament with the Petitioners’ other dogs – even though this
was the precise protocol implemented when the Petitioners adopted Katrina from WAIF.
42. Petitioners have also communicated to Bibich and WAIF their willingness to
indemnify and release WAIF for any claims arising from any injury that Smiley might cause to
another person or animal.
43. On April 30, 2008, having met with a fencing contractor who was prepared to
build an enclosure to whatever specifications WAIF requested, Baker emailed Bibich and
WAIF board members explaining the plans for the secure enclosure, noting that it would be
built “off the office” where Petitioners run their “Teddy Bear charity,” where he could be their
“‘office’ dog and not encounter [their] other ‘house’ dogs,” where he would “have a sizable
grassy space to roam and 24-hour access to the office,” where he could “oversee the Teddy
Bears waiting to go to traumatized kids,” “eat homemade dog food,” and “get a walk every day
on [their street].” This email was ignored. See Exhibit 2, attached.
44. Instead, on April 30, 2008, in writing, Bibich rejected Petitioners’ request to
adopt Smiley, citing the following as the basis for denial: (a) Smiley is a pit bull; (b) Smiley
cannot be placed in a home with cats or small animals; (c) Smiley cannot be placed in a home
with more than one dog, and that dog must be female; (d) Smiley cannot be placed in a home
with livestock. See Exhibit 3, attached.
45. On May 2, 2008, Baker met with Bibich and other WAIF staff to discuss
Bibich’s denial letter. At this meeting, Baker explained that the bases for Bibich’s denial were
irrelevant because: (a) Smiley would be built his own secure, isolated enclosure where he
would not be exposed to other dogs, male or female; (b) the rooster who was not kept in the
home would be given away; (c) in response to Bibich noting Smiley’s strong prey drive for
cats, Baker said, “We don’t have a cat”; and (d) Petitioners had no “livestock.”
46. Bibich did not relent in her refusal to adopt, so the Petitioners inquired as to
their right to appeal her denial. On May 12, 2008, Julie Lauderdale (“Lauderdale”), the WAIF
executive director, explained the procedure of appeal to the Petitioners in writing, noting that a
request should first be made to her. If she affirmed Bibich’s denial, then the Petitioners could
47. On May 13, 2008, the Petitioners, following the protocols outlined by
Lauderdale, requested in writing that Bibich’s denial be reversed for the reasons stated. See
Exhibit 5, attached.
48. On May 19, 2008, Lauderdale sent a letter to the Petitioners affirming her
rejection and adding that the Petitioners were “not suitable candidates to adopt or foster this
dog or any other dog with similar breed and temperament.” This was despite the fact that
WAIF had previously approved the Petitioners’ adoption of a pit bull in 2007 and that dog had
adjusted well in the household. See Exhibit 6, attached.
50. Mindy died in early June 2008 of heart failure. At this time, the Petitioners had
only Smoochie, Katrina, and a rooster. If an appeal were provided and proper protocols
followed in the adoption process, the Petitioners would have reiterated that Smiley would be
housed separately, that the Petitioners only had two dogs and a rooster who would be relocated.
They wanted to work with WAIF, proceed through a formal application process, obtain the
appeal promised, provide veterinary references, participate in a home visit to show their plans
for Smiley’s enclosure, and prove their ability to rescue and care for animals as they had done
in California. California veterinarians with whom the Petitioners had worked agreed to provide
letters of support. Despite making clear to WAIF that they would consent to spot visits, input
from their staff, hiring trainers for Smiley, indemnification, and other conditions, they were
ignored and Smiley suffered this rejection. appeal further to the full WAIF board. See Exhibit 4, attached.
49. On May 22, 2008, the Petitioners lodged an appeal to the full WAIF board. To
this appeal, the board, Bibich, and Lauderdale never responded. Accordingly, the Petitioners
never were able to complete the appeal process. See Exhibit 7, attached.
51. Frustrated with no response, Petitioners retained Adam Karp to investigate the
matter further. On August 4, 2008, Mr. Karp submitted a public disclosure request to WAIF via
its attorney Mark Theune, asking for Smiley’s entire file, WAIF’s contracts for funding and
operation, correspondence between Petitioners and WAIF staff, and other documents.
54. On September 12, 2008, having reviewed materials provided by Mr. Theune,
Mr. Karp sent a letter to Mr. Theune requesting a re-evaluation of WAIF’s denial of their
adoption request. In this letter, Mr. Karp clarified some of the factually baseless criteria upon
which Bibich and then Lauderdale denied the application. Mr. Karp also submitted a third
public disclosure request to WAIF for, inter alia, various records concerning Smiley.
55. On October 31, 2008, Mr. Theune responded to Mr. Karp’s second and third
public disclosure requests and request to re-evaluate Smiley’s adoption. In this letter, the
request to adopt Smiley was again denied.
On August 22, 2008, Mr. Theune provided responses to the first public
disclosure request.
On September 4, 2008, Mr. Karp emailed Mr. Theune a second public
disclosure request.
56. On November 6, 2008, Mr. Theune notified Mr. Karp by email that “pursuant to
the formal policies previously adopted by WAIF, a determination has been made that Smiley
will be euthanized on November 13th. I have been advised by WAIF staff that Smiley is not
adoptable and that his behavior is creating a greater and greater risk of harm to staff and
volunteers.”
57. Based on recently acquired information and belief, notwithstanding Mr.
Theune’s assertion of November 6, 2008, Smiley remains adoptable and poses no appreciable
risk of harm to staff and volunteers.
FIRST CAUSE OF ACTION – WRIT OF REVIEW/CERTIORARI
58. The decisions of Bibich, Lauderdale, and WAIF in denying Petitioners’ request
for adoption were arbitrary and capricious, retaliatory, and illegal in violation of, inter alia,
Petitioners’ First Amendment and Fourteenth Amendment due process rights.
59. Petitioners have no appeal, nor any plain, speedy, or adequate remedy of law.
60. Petitioners pray that a constitutional writ of certiorari and/or statutory writ of review
be issued directing WAIF to transmit their entire record related to the adoption procedure at
bar, to facilitate an appeal to ascertain the reasonableness and lawfulness of the conclusions of
the Defendant, and whether it should be found to have made an arbitrary and capricious, or
illegal decision.
61. Petitioners further pray for such other ancillary relief as is appropriate and just,
including an order transferring Smiley to a third-party receiver pending final adjudication of
this matter, transferring Smiley to Petitioners temporarily and permanently, arranging for a
permanent transfer of Smiley to another responsible agency, or supporting the adoption of
Smiley to any other person capable of providing him the care and attention he deserves. This
request for relief is based, in part, on legitimate fears as to Smiley’s continued welfare under
WAIF’s control, with the lingering threat of death although sources inside WAIF confirm that
Smiley is fine, not kennel-stressed, or suffering from any behavior meriting euthanasia.
SECOND CAUSE OF ACTION – TAXPAYER ACTION
62. WAIF’s actions have caused or will imminently cause Petitioners to suffer
special injury sufficient to establish taxpayer standing.
63. Petitioners seek injunctive and declaratory relief to correct WAIF’s alleged
erroneous denial of their adoption application, made using public tax dollars.
THIRD CAUSE OF ACTION – INJUNCTIVE AND DECLARATORY RELIEF
64. This court has the power under Ch. 7.40 RCW to enjoin Defendants from taking
illegal actions in violation of Plaintiffs’ rights. This court also has the authority to render a
declaratory judgment pertaining to Plaintiffs’ rights, statuses and other legal relations, pursuant
to Ch. 7.24 RCW.
65. The actions of WAIF, in denying Petitioners’ adoption request, is arbitrary and
capricious and unconstitutional with respect to Petitioners’ free speech rights and due process
claims. A declaratory judgment and injunctive order compelling WAIF to process Smiley’s
adoption to Petitioners should be entered and his life spared.
FOURTH CAUSE OF ACTION – EQUITABLE RELIEF
66. Petitioners seeks sole ownership over Smiley or an order transferring Smiley to
a suitable home in lieu of euthanasia, as stated above, based on this court’s constitutional
powers of equity, implied causes of action related to the protection and welfare of nonhuman
animals (e.g., cruelty-to-animals, neglect, abandonment, trust laws), public policy against waste
of public resources, parens patriae doctrine, public trust doctrine, the best interests of the
animal, among other equitable doctrines.
RESERVATION OF RIGHTS
67. Petitioners reserve the right to amend this Complaint to include additional claims as
discovery continues.
PRAYER
WHEREFORE, Plaintiffs prays for relief against Defendants as follows:
A. For the constitutional writ of certiorari and/or statutory writ of review as stated above;
B. For injunctive and declaratory relief as requested above;
C. For equitable relief as requested above;
D. For such other ancillary relief as is appropriate and just, including an order finding error
WAIF’s decisions and overruling their denial of the adoption application.
E. For costs and fees as permitted by law;
Dated this November 11, 2008.
ANIMAL LAW OFFICES
_________________________________
Adam P. Karp, WSBA No. 28622
Attorney for Petitioners
VERIFIED PETITION AND
COMPLAINT - 17
ANIMAL LAW OFFICES OF
ADAM P. KARP, ESQ.
114 W. Magnolia St., Ste. 425 ! Bellingham, WA 98225
(360) 738-7273 ! Facsimile: (360) 392-3936
adam@animal-lawyer.com
VERIFICATION
BARBARA MORAN, on oath, and under penalty of perjury under the laws of the State of
Washington, says:
I am a plaintiff in the above-entitled action: I have read the foregoing Petition and Complaint and
know the contents of the Paragraphs 2, 8-10, 27-51:1st sentence, to be true to the best of my
recollection.
Dated this ____ day of ____________________ 2008 at Clinton, Washington.
_____________________________________
Barbara Moran, Plaintiff
ROBERT BAKER, on oath, and under penalty of perjury under the laws of the State of
Washington, says:
I am a plaintiff in the above-entitled action: I have read the foregoing Petition and Complaint and
know the contents of the Paragraphs 2, 8-10, 27-51:1st sentence, to be true to the best of my
recollection.
Dated this ____ day of ____________________ 2008 at Clinton, Washington.
_____________________________________
Robert Baker, Plaintiff
EXHIBIT 1
EXHIBIT 2
EXHIBIT 3
EXHIBIT 4
EXHIBIT 5
EXHIBIT 6
EXHIBIT 7