[¶ 1.] Hеnry Blackwell, Sr. (Blackwell) is the owner of a dog declared by an animal control officer to be “dangerous” pursuant to Pierre City Ordinance § 10-3-111. He was subsequently convicted under Pierre City Ordinance § 10-3-117, which makes it a crime to violate § 10-3-111. Blackwell challenges the conviсtion on the basis that the ordinances themselves are unconstitutional and that his constitutional right to procedural due process has been violated. We hold the ordinances to be constitutional but reverse and remand for determination on the factual issue оf the dog’s dangerousness.
FACTS AND PROCEDURE
[¶ 2.] On June 27, 2000, Blackwell’s family dog was reported to have bitten a 14-year old girl in the alley behind the property of the Blackwell’s neighbors. As a result, the dog was declared by the reporting animal control officer to be a “dangerous animal” under Pierrе City Ordinance § 10-3-111. The dog was impounded and Blackwell was sent notice of the determination by registered mail.
[¶ 3.] Upon receipt of the notice, Blackwell refused to comply with several of the requirements set forth in § 10-3-111. Specifically, he refused: (1) to keep the dog muzzlеd, leashed, and in the control of a person aged 18 years or older whenever the dog is outdoors; (2) to have the dog injected with an identification microchip; and (3) to carry a minimum of $100,000 of liability insurance on the animal. Although the ordinance provides that the animаl may be impounded at the owner’s expense until he proves compliance with all of these requirements, the dog was released on July 6, 2000, by authority of the City attorney, pending Blackwell’s criminal trial for noncompliance.
[¶ 4.] On July 24, 2000, animal control witnessed the dog outside thе Blackwell home with a leash on but with no one in direct control. When the animal control officer spoke with Blackwell and attempted to impound the dog again, Blackwell refused to comply. Another notice of the declaration of dangerousness and а demand to impound the dog was sent to Blackwell via registered mail. On August 11, when another attempt to impound the *584 dog was made, Blackwell again refused to comply. The City of Pierre (the City) filed its criminal complaint against Blackwell on August 18, 2000.
[¶ 5.] The parties proceeded to a bench trial on November 8, 2000. There was no dispute as to Blackwell’s failure to comply with the ordinance. Thus, the only issue at trial was the dog’s dangerousness. Both Blackwell and the City presented evidence regarding the dog’s categorization as a “dangerous animаl.” The trial court, however, concluded an independent factual determination of the dog’s disposition was not appropriate, and therefore merely reviewed the animal control officer’s determination for its legality. The court held that determination to be neither arbitrary nor capricious and therefore legally made.
[¶ 6.] Blackwell was convicted under Pierre City Ordinance § 10-3-117 and was ordered to pay a fine of $200 plus costs. The fine was, however, suspended on the condition that he surrender the dog for impoundmеnt in compliance with subsection (C) of § 10-3-111. Blackwell appeals from the court’s order raising two issues:
1. Whether Pierre City Ordinances § 10-3-111 and § 10-3-117 are unconstitutional on their face, as a violation of due process, when they allow for the adjudication of a dog’s dangerоusness without a prior hearing.
2. Whether the trial court’s criminal sentence under § 10-3-117 for a violation of § 10-3-111 amounted to a deprivation of property without a proper criminal trial, which thereby violated Blackwell’s constitutional right to procedural due process.
STANDARD OF REVIEW
[¶ 7.] Constitutional interpretation presents a question of law and is therefore reviewed by this Court de novo.
Steinkruger v. Miller,
ANALYSIS AND DECISION
[¶ 8.] 1. Whether Pierre City Ordinances § 10-3-111 and § 10-3-117 are unconstitutional on their face, as a violation of due process, when they allow for the adjudication of a dog’s dangеrousness without a prior hearing.
[¶ 9.] In
Fortier v. City of Spearfish,
[¶ 10.] “[C]ities derive their right to regulate from the Legislature.”
City of Marion v. Schoenwald,
[¶ 11.] The ordinances at issue in this case advance a legitimate public safety objective. They are aimed at preventing the tragic consequences associated with uncontrolled dangerous pets. The physical danger that some animals pose to citizens, particularly in populated or urban communities, is certainly a matter of public and governmental concern.
From our extensive research on similar decisions throughout the country, we think it significant that with the growing urbanization over the past fifty years, courts have become increasingly deferential to local authorities in upholding diverse pet control measures.
Schoenwald,
[¶ 12.] 2. Whether the trial court’s criminal sentence under § 10-3-117 for a violation of § 10-3-111 amounted to a deprivation of property without a proper criminal trial, which thereby violated Blackwell’s сonstitutional right to procedural due process.
[¶ 13.] Under the Fourteenth Amendment to the United States Constitution, as well as Article VI, § 2 of the South Dakota Constitution, “no person shall be deprived of life, liberty, or property without due process of the law.” Due process guarantees that notice and the right to be heard are granted in a “meaningful time and in a meaningful manner.”
Hollander v. Douglas Co.,
[¶ 14.] The trial court’s ruling under § 10-3-111 and § 10-3-117 operated to deprive Blackwell of a protected property interest in his dog. While the property interest in a dog is of an imperfect or qualified nature, the dog is property nonetheless.
Sentell v. New Orleans & C.R. Co.,
[¶ 15.] The City must be required to prove, as an element of .the crime, that the dog was dangerous beyond a reasonable doubt. See SDCL 23A-22-3 (requiring acquittal in criminal action where reasonable doubt exists). Blackwell was charged under Pierre City Ordinance § 10-3-117, which criminalizes noncompliance with § 10-3-111. If the City had given Blackwell a civil hearing, 1 it need only have proved the disposition of the dog by a рreponderance of the evidence. The *586 City, however, chose to bring criminal charges against Blackwell and therefore must carry the appropriate burden of proof.
[¶ 16.] While evidence regarding the dangerousness of the dog was presented by both sidеs at trial, there was no independent evaluation of this evidence by the trial court. 2 The court stated “it is not a judicial function to try de novo a declaration of dangerousness by the City.” In so doing, the trial court relied upon the analogy of judicial review of a heаring conducted before a school board. There, however, the board acts as a neutral fact-finder and the proceedings are civil in nature. Here, there was no independent determination of dangerousness by a neutral judicial officer as part of the criminal proceeding.
[¶ 17.] In refusing to evaluate the evidence and make a finding of fact on *587 the issue of the dog’s dangerousness, the trial court did not hold the City to its burden of proof. Because the trial court merely reviewed the animal control officer’s deсision for its legality, we find that due process was not served by the trial in this case.
CONCLUSION
[¶ 18.] We hold that Pierre City Ordinances § 10-3-111 and § 10-3-117 afford due process to owners of dogs subject to this type of municipal regulation. If the City opts for a civil hearing, absent exigent circumstances, the owner of a dog is entitled to a due process hearing on the issue of dangerousness. If the City pursues criminal charges under § 10-3-117, the dog owner is also entitled to a determination of dangerousness. For a criminal conviction, dangerousness must be established by the City beyond a reasonable doubt. As such, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Notes
. Blaсkwell also launches an independent constitutional attack on § 10-3-111 on due process grounds. While the ordinance at issue does not directly provide for a civil hearing on the determination of dangerousness, neither does it forbid such a hearing. Indeed, *586 the language of the statute implies the necessity of a hearing to evaluate the official's determination in light of facts that may not have been known at the time of his decision. The ordinance sets forth certain circumstances in which an animal may be declared dangerous. See § 10-3-11(A)(1), (2). It also provides exceptions to these circumstances. See § 10-3-111(A)(3). These exceptions include instances where the injury sustained was in the course of a willful trespass, the commission of a crime, or the teasing or abusing of the animal. Id. This language indicates that one may dispute the declaration of dangerousness under mitigating circumstances, a dispute logically done in the course of a hearing before a disinterested judicial officer.
The City argues that Blackwell waived any right to due process by not requesting such a hearing. Waiver of one's right to be heard, however, must be made “knowingly and intelligently, with sufficient awareness of the relevant circumstances and likely consequences.”
State v. Christian,
. Even in a civil context, the animal control officer's claim that he made thе dangerousness determination in compliance with statutory guidelines is not sufficient absent exigent circumstances. We recognize that there may be times when an emergency exists, or when immediate action is necessary to protect the health, welfare and safety of the citizens. Under such circumstances, subsequent judicial consideration may become impracticable.
See Sentell,
In this case, no emergency existed. Indeed, the whole process was allowed to continue for оver six months, in which time the dog was impounded and released more than once. After the first 10 days of impoundment, the City attorney authorized the dog’s release pending trial. Animal control officers merely spoke to Blackwell in their attempt to re-impound the dog when Blackwell was found in violation of the ordinance. After trial, the court ordered a stay of execution dependent upon Blackwell's compliance with the ordinance and released the dog again without objection from the City. Clearly, no drastic immediate meаsures were necessary. Based on the facts of this case, even if the City had proceeded against Blackwell civilly, it could easily have afforded Blackwell some form of civil hearing before a neutral judicial officer without endangering the health, welfare or safety of the community or its citizens.