178 Wis. 2d 353 | Wis. Ct. App. | 1993
This is an appeal by the Dog Federation of Wisconsin, Inc., and four persons who claim to own dogs that may be subject to regulation by a City of South Milwaukee ordinance that imposes restrictions on the ownership and keeping of "pit bulls."
The parties filed cross motions for summary judgment in the trial court.
The focus of the claims by the Federation and the individual appellants is on the ordinance's definition of "pitbull":
"Pit Bull" as used in this ordinance means: Any pit bull terrier, which shall be defined as any American Pit Bull Terrier or Staffordshire Bull Terrier or American Staffordshire Terrier breed of dog, or any mixed breed of dog which contains as an element of its breeding the breed of American Pit Bull Terrier or Staffordshire Bull Terrier or American Stafford-shire Terrier as to be identifiable as partially of the breed of American Pit Bull Terrier or Staffordshire Bull Terrier or American Staffordshire Terrier.
Ordinances, like statutes, are presumed to be constitutional and will be upheld unless shown to be unconstitutional beyond a reasonable doubt. Eastman v. City of Madison, 117 Wis. 2d 106, 111, 342 N.W.2d 764, 767 (Ct. App. 1983). We address the claims of the Federation and the individual appellants in sequence.
1. Vagueness.
A law regulating conduct must give adequate notice of what is prohibited, so as not to delegate "basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis." Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). Thus, "a statute which either forbids or requires the doing of
The Federation and the individual appellants contend that an ordinary person would not be able to discern whether a dog is a "pit bull" as defined by the ordinance. They point to the City of South Milwaukee's concession that such a determination would require expert testimony at trial, and that no "current city employee" would be able to give that testimony.
The core of the appellants' factual submissions on their void-for-vagueness argument is an affidavit by Robert M. Brown, D.M.V., the chief veterinarian at the Jackson Area Pet Hospital in Jackson, Wisconsin. Dr. Brown has written various books on dog-ownership, is a columnist for two dog periodicals, and is a dog-show judge certified by the American Kennel Club. Distilled
1) the breed standards referenced by the ordinance are that of the "ideal" dog of that breed;
2) non-experts would be unable to accurately determine whether a particular dog was the "pit bull" defined in the ordinance;
3) experts "would have difficulty determining whether a particular dog was 'identifiable' as being 'partially of one of the breeds named" in the ordinance "solely upon the basis of a visual inspection" (emphasis added);
4) it is "extremely difficult" for him to understand and apply the ordinance's phrase "any mixed breed of dog which contains as an element of its breeding the breed of American Pit Bull Terrier or Staffordshire Bull Terrier or American Staffordshire Terrier" (emphasis added);
5) there is no "genetic method" to determine a dog's breed; and
6) the "only possible way in which a dog might be 'identifiable' as falling within the breeds specified in the South Milwaukee Ordinance is by examining a breeding history that is presented by the dog's owner as part of registering the dog as a purebred animal," and that "the vast majority of dogs" are not registered and lack sufficient breeding documentation, so that the only way oí "truly determining the breed of dog" would be to breed the dog for several generations and examine the offspring. (Emphasis added.)
Reference to recognized breeds provides sufficient specifics to withstand a vagueness challenge. Thus, in State v. Peters, 534 So.2d 760 (Fla. Dist. Ct. App. 1988), the court upheld an ordinance that defined "pit bull" to mean "any dog which exhibits those distinguishing characteristics" that "substantially conform to the standards" established either by the "American Kennel Club for American Staffordshire Terriers or Stafford-
Although there are decisions that have ruled pit-bull ordinances too vague to pass constitutional muster, see American Dog Owners Ass'n v. City of Des Moines, 469 N.W.2d 416, 417-418 (Iowa 1991) (ordinance banning Staffordshire Terrier, American Pit Bull Terrier, American Staffordshire Terrier or dogs of any "other breed or mixed breed... known as pit bulls, pit bull dogs or pit bull terriers"); American Dog Owners Ass'n v. City of Lynn, 533 N.E.2d 642, 646 (Mass.
2. Overbreadth and equal protection.
The contention by the Federation and the individual appellants that the City of South Milwaukee ordinance is overbroad is, as they articulate it in their brief, essentially one of equal protection: they argue
Equal protection of the law is guaranteed by the Fourteenth Amendment to the United States Constitution and by Article I, section 1 of the Wisconsin Constitution.
Although no precise formula has been developed, the [United States Supreme] Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended*366 only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective.
McGowan v. Maryland, 366 U.S. 420, 425 (1961). The Wisconsin Supreme Court has identified five factors relevant to the equal-protection analysis:
(1) All classification [sic] must be based upon substantial distinctions which make one class really different from another.
(2) The classification adopted must be germane to the purpose of the law.
(3) The classification must not be based upon existing circumstances only.
(4) To whatever class a law may apply, it must apply equally to each member thereof.
(5) That the characteristics of each class should be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation.
State ex rel. Baer v. City of Milwaukee, 33 Wis. 2d 624, 633, 148 N.W.2d 21, 25-26 (1967) (bracketed material, citations, and ellipses omitted). Each of these criteria "must be satisfied to sustain a legislative classification against an equal-protection attack." Funk v. Wollin Silo & Equip., Inc., 148 Wis. 2d 59, 63, 435 N.W.2d 244, 246 (1989).
The Federation and the individual appellants contend that the ordinance's treatment of all pit bulls as dangerous has "no scientific or empirical basis" and that dangerousness is a function of "environment, training, and upbringing." Dr. Brown's affidavit and an
The record in this case reveals that the City of South Milwaukee common council passed the pit-bull ordinance after considering various police reports of incidents involving pit bulls.
By the Court. — Judgment affirmed.
Section 23.20 of the Municipal Code of the City of South Milwaukee provides, as pertinent to this appeal:
SECTION 1; ....
4. "Pit Bull" as used in this ordinance means: Any pit bull terrier, which shall be defined as any American Pit Bull Terrier or Staf-fordshire Bull Terrier or American Staffordshire Terrier breed of dog, or any mixed breed of dog which contains as an element of its breeding the breed of American Pit Bull Terrier or Staffordshire Bull Terrier or American Staffordshire Terrier as to be identifiable as partially of the breed of American Pit Bull Terrier or Stafford-shire Bull Terrier or American Staffordshire Bull Terrier.
8a. No person shall harbor, keep or maintain within the city limits of the City of South Milwaukee, any pit bull which was not currently registered and licensed by the City of South Milwaukee on or before April 1,1989. This prohibition shall not be applied to animals being transported through the city limits of the City of*357 South Milwaukee within a one-hour period of time, and to dogs exempted under sec. 174.005 and 174.006.
8b. A pup bom to a female pit bull licensed and registered pursuant to paragraphs 8(a) and 13 hereof shall be removed from the City of South Milwaukee before the date on which it is required to be licensed pursuant to Chapter 174 Wis. Stats.
9. Any person having knowledge which he or she believes constitutes probable cause to believe that another is harboring, keeping or maintaining a pit bull which was not registered with and licensed by the City of South Milwaukee on or before April 1,1989, in the City of South Milwaukee, shall file with the Municipal Court Clerk a sworn affidavit setting forth the basis on which they believe the anjmal to be a pit bull, the name and address of the owner of the dog, and a description of the dog, with the Municipal Court Clerk. The Clerk shall, upon receipt of such affidavit, inquire of the City Clerk 1) if the dog was licensed on April 1,1989, and 2) if the dog is currently registered as a pit bull pursuant to paragraph 13 of this ordinance. If the dog was not registered and licensed by the City of South Milwaukee on April 1, 1989, or is not currently registered pursuant to the provisions of paragraph 13 of this ordinance, the Clerk shall schedule a hearing to determine if the dog is a pit bull. The Clerk shall give notice of the hearing to the complainant and shall issue a Summons addressed to the owner of the alleged pit bull. Any dog determined by the court after hearing to be a pit bull, shall be impounded and the procedure outlined in paragraph 22 hereof shall govern disposition of the dog.
11. No person shall return to or harbor within the city limits of the City of South Milwaukee a dog previously determined by the Municipal Court to be a vicious dog or a pit bull. The provisions of paragraph 22 hereof shall govern the disposition of such a dog.
13. All owners of dangerous dogs shall on or before April 15,1989, and annually thereafter, on or before April 15 of each year, register their dog and shall provide a current color photograph of the dog with the Treasurer's Office and pay a registration fee of $15.00. At the time of registration, each owner of any dangerous dog kept within the city limits of the City of South Milwaukee, shall provide to the Treasurer proof of liability insurance in the amount of at least $100,000.00 for any acts of property damage or liability incurred by virtue of injury inflicted by such dog. Such insurance shall name the City as co-insured solely for the purpose of notice of*358 cancellation of the policy. Upon payment of the fee, the Treasurer shall issue a current dangerous dog collar of an approved color for purpose of identification, and which collar is to be worn by the dog at all times as proof of registration. If, when due to the length of the dog's hair, the collar is not visible, an approved colored lead or chain may be used. In any event, the dog's tag must be attached to either collar used. An owner of a dangerous dog who fails to register his/her dog is subject to a forfeiture of not less than $100.00 nor more than $250.00 PER DAY. An owner of a dangerous dog who registers but neglects to have the dangerous dog collar worn by the dog at all times is subject to a forfeiture of not less than $25.00 nor more than $250.00 PER DAY.
14. The owner of any pit bull registered and licensed by the City Clerk on or before April 1,1989, shall comply with all provisions of this ordinance applicable to dangerous dogs. Any owner of a pit bull who fails to keep current the dog's license and registration as provided in paragraph 13 hereof must remove the dog from the City of South Milwaukee and will not be eligible to re-register the dog. The owner of any previously-permitted pit bull who fails to keep current the dog's license is subject to the penalties applicable to any pit bull not registered and licensed on April 1,1989.
The City of South Milwaukee denominated its motion as one for "summary dismissal," but submitted affidavits and other material. See Rule 802.06(3), Stats, (a motion to dismiss will be treated as a motion for summary judgment when moving party presents, and the court does not exclude, "matters outside the pleadings.").
The breed was accepted for registration under the name "Staffordshire Terrier." The name was changed to American Staffordshire Terrier in 1972.
In 1935, the dog was recognized as a breed in England by The Kennel Club.
The complainants in Garcia had argued that "the term 'American Pit Bull Terrier' is used only by the United Kennel Club, that the American Kennel Club uses the term 'American Staffordshire Terrier' to register the same breed, that the American Kennel Club also registers the 'Staffordshire Bull Terrier' and the 'Bull Terrier,' and that all of these breeds might be described as ’pit bulls.’" 767 P.2d at 357. The trial court found that the American Pit Bull Terrier was a breed that could be readily identified by persons who were not experts. Id., 767 P.2d at 357. The New Mexico Court of Appeals determined that there was credible evidence in the record to support that finding, but declined to rule as to whether the ordinance could be applied constitutionally to persons who might not be aware that their dogs were "known as American Pit Bull Terrier [s]." Id., 767 P.2d at 358.
The burden of proof in a prosecution for the violation of a municipal ordinance where the penalty is a forfeiture, as is the case with the City of South Milwaukee ordinance, is not, as might be suggested by Dr. Brown's affidavit, beyond all doubt. Rather, it is the middle burden of proof: by evidence that is "clear, satisfactory, and convincing." Wis JI — CRIMINAL 2050.
The Fourteenth Amendment to the United States Constitution provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." The functional equivalent of this clause (and of the Fourteenth Amendment's due process clause) is found in Article I, section 1 of the Wisconsin Constitution: "All people are bom equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." Although Article I, section 1, was based on the Declaration of Independence, "there is no substantial difference between" its guarantee of equal protection and that of the Fourteenth Amendment. State ex rel. Sonneborn v. Sylvester, 26 Wis. 2d 43, 49-50, 132 N.W.2d 249, 252 (1965); see also Funk v. Wollin Silo & Equipment, Inc., 148 Wis. 2d 59, 61 n.2, 435 N.W.2d 244, 245 n.2 (1989) ("We have given the equal-protection provision of the Wisconsin Constitution and the parallel clause of the United States Constitution identical interpretation.").
The following matters are in the record: an unprovoked attack by a pit bull on another dog, tearing away a two-inch square piece of skin from the victim animal; a woman, her two children, and their dog chased by two pit bulls, which fought with the dog; an unprovoked attack on an eight-year-old girl by a pit bull; an unprovoked attack on an eleven-year-old boy by a pit bull; an attack on another dog by a pit bull; a police report indicating that the complainant and neighbors were afraid to walk in the neighborhood or let their children play unsupervised outside their houses because of a neighbor's three pit bulls.
The articles recounting attacks on humans by pit bulls included the death of a twenty-five-year-old man, and the serious injuries suffered by a three-year-old boy and a seventy-year-old woman. Another article concerned the unprovoked attack by a pit bull on a police officer.
Although the article does not mention the area covered by the report of twenty fatalities, another article included in the record reports that pit bulls have been "responsible for more than 20 deaths in the past five years nationwide."