STATE OF WASHINGTON v.
No. 56949-3-II
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
November 7, 2023
PUBLISHED OPINION
GLASGOW, C.J. — Jennifer Richards’ dog, Thor, twice bit another dog unprovoked. As a result, Wahkiakum
After a bench trial on stipulated facts, the district court found Richards guilty and imposed the maximum jail time of 364 days. However, the district court told Richards that it would suspend the sentence if Richards were to turn Thor over to animal control the next day.
Richards appealed her conviction and sentence to the superior court, and the superior court affirmed. The superior court granted a stay pending appeal.
Richards sought discretionary review in this court, arguing that
We affirm Richards’ conviction for a gross misdemeanor under the ordinance, but we remand for the district court to clarify that Richards was not convicted of any violation of the statute. In addition, because the district court imposed a condition on the suspension of Richards’ sentence that was untethered from statutory and county code prerequisites to destroying a dangerous dog, we reverse the sentence and remand for resentencing.
FACTS
I. BACKGROUND ON DANGEROUS DOG CODES
The legislature has defined a dog as “dangerous” if the dog was previously found to be potentially dangerous because it injured a human, the owner received notice of that designation, and the dog “again aggressively bites, attacks, or endangers the safety of humans.”
In contrast, under the Revised Code of Wahkiakum County, a dog is a “potentially dangerous dog” when, unprovoked, it bites “a human or a domestic animal either on public or on private property.”
The Revised Code of Wahkiakum County makes it “unlawful for an owner of a dangerous dog to permit the dog to be outside [a] proper enclosure unless the dog is muzzled and restrained by a substantial chain or leash and under physical restraint of a responsible person,” even if the dog is on the dog owner‘s property.
Under
The county code also addresses the circumstances when it authorizes impoundment and destruction of a dangerous dog. Upon a violation under county code, the dog is subject to impoundment.
The animal control authority must hold an impounded dog for at least 96 hours, not including weekends and legal holidays.
The county code otherwise allows immediate destruction of the dog in limited circumstances. The animal control authority may immediately destroy a dog if “a dog is suffering from a serious injury or disease, and destroying the dog is in the interest of public health and safety, or in the interest of the dog.”
II. FACTUAL BACKGROUND
Richards lived in Wahkiakum County with her daughter, who had a disabling health condition. When Richards’ daughter was six years old, Richards introduced a dog named Thor into the family. Richards explained that Thor became her daughter‘s emotional support animal.
In 2018, the county designated Thor a potentially dangerous dog under its code after Thor bit another dog without provocation. Richards received notice of the designation but did not appeal it.
About a year later, the county designated Thor a dangerous dog under its code after “Thor again aggressively bit and endangered the safety of” another dog. Suppl. Clerk‘s Papers (CP) at 168. Richards appealed the dangerous dog designation. The Wahkiakum County District Court upheld the designation after a hearing, finding that Thor met the definition of a dangerous dog in the county code.1 Richards did not appeal the district court‘s finding.
III. CHARGE OF DANGEROUS DOG AT LARGE
In 2020, a deputy sheriff responded to a report of a dangerous dog “running loose.” Suppl. CP at 255. The deputy saw Thor unsecured on Richards’ property while Richards was away getting medication her daughter urgently needed that evening. The deputy called Richards, and she asked if the deputy “could attempt to secure Thor in her residence.” Id. The deputy tried unsuccessfully to calm Thor, who had been barking continuously. Thor then lunged at the deputy‘s waist, “mouth open” and “snapping his jaws.” Suppl. CP at 256. After Thor ran behind Richards’ home, the deputy called for backup and watched Thor from afar until Richards returned. The deputy did not impound Thor, instead leaving him in Richards’ care as authorized under the county code.
Wahkiakum County charged Richards with allowing Thor, who had a dangerous dog designation, to be outside a “proper enclosure” while “neither muzzled nor under the physical restraint of any responsible person.” Suppl. CP at 251. The charging document read, “Dangerous Dog at Large is a violation
IV. MOTION TO DISMISS
Before trial, Richards moved to dismiss the charge. First, she argued that she was not subject to any punishment that
Second, Richards argued that because Wahkiakum County‘s definition of a dangerous dog conflicted with the statutory definition, it was preempted. She contended that while
After a hearing, the district court denied the motion to dismiss. Framing Richards’ argument that she was not subject to punishment under
Addressing Richards’ preemption argument, the district court concluded that the legislature had not preempted the field of dangerous dog management, explicitly or by implication, and that the ordinance did not irreconcilably conflict with its statutory counterpart. The district court reasoned that enforcement was “very much delegated to local control.” Suppl. CP at 206. And it reasoned that a “‘local ordinance may require more than state law requires where the laws are prohibitive.‘” Id. (quoting Rabon v. City of Seattle, 135 Wn.2d 278, 292, 957 P.2d 621 (1998)).
V. BENCH TRIAL AND SENTENCE
Richards waived her right to a jury trial and underwent a bench trial on stipulated facts. She stipulated that Thor met the definition of a dangerous dog under the county code because, “having been previously found to be potentially dangerous and the owner having received notice of the finding, Thor . . . aggressively bit and endangered the safety of a domestic animal” for the second time. Suppl. CP at 168. The parties stipulated that Thor had not been found to meet the definition of a dangerous dog in any other way. And Richards stipulated that she had “permitted Thor to be outside a proper enclosure,” and that at the time, Thor was not muzzled, “restrained by a substantial chain or leash,” or “under the physical restraint of a responsible person.” Id.
The trial court found Richards “guilty of the crime charged.” Suppl. CP at 173.
The district court imposed the maximum jail time of 364 days. But it told Richards, “You shall not be required to go into custody if you provide written proof that the dog, Thor, has been surrendered . . . by tomorrow at 3:00 p.m.” CP at 88. The district court added that if Richards were to fail to surrender Thor by that time, she would have to report to jail and remain there until she surrendered him. Although the district court did not explicitly say Thor would be destroyed upon surrender, it appears that the judge, attorneys, and Richards all understood that Thor would be destroyed. See CP at 66 (prosecutor stating that he “didn‘t get into this job to kill dogs” but “this is what needs to happen“); CP at 79 (Richards stating that she did not think it was “fair that [Thor] would be put down“); CP at 81 (judge stating that “as a practical matter,” the punishment would be “a death sentence for an animal“).
Richards asked if she could have a week to surrender Thor so that her boyfriend, who was away, would have a chance to say goodbye. The district court denied her request. It said, “Ms. Richards, you‘ve had since . . . April of 2019 to come into compliance with the dangerous dog registration requirements.” CP at 89. The district court added, “We are giving you a bit over 24 hours so that you can get your affairs in line, with both your daughter and your pet responsibilities here, and that is how much time the [c]ourt is willing to allow under the circumstances of this case.” Id.
VI. APPEAL TO SUPERIOR COURT
Richards appealed her conviction and sentence to Wahkiakum County Superior Court and moved for an emergency stay of her sentence. The superior court accepted review and granted an emergency stay pending appeal. The superior court‘s stay is still in place.
As she had in the district court, Richards argued that she was not subject to any punishment
The superior court affirmed Richards’ conviction and sentence. Addressing Richards’ argument that she was not subject to punishment, the superior court concluded that the charging document established “with specificity the code sections that authorize and impose the specific sentence of the crime charged.” CP at 126. It added that there was “no vagueness in the ordinance scheme.” Id. And the superior court rejected Richards’ preemption challenge.
With regard to the sentence, the superior court rejected Richards’ argument that the local animal control authority had to give her time to comply with the county code before euthanizing Thor, reasoning that the district court had broad authority to impose conditions on suspending the sentence imposed. Finally, the superior court concluded that Richards’ sentence was not cruel under the Washington Constitution.
Richards sought discretionary review in this court of her conviction and sentence. A commissioner of this court granted review under RAP 2.3(d)(2) (significant constitutional question) and (3) (issue of public interest).
ANALYSIS
“RALJ 9.1 governs appellate review of a superior court decision reviewing” a district court decision. State v. Brokman, 84 Wn. App. 848, 850, 930 P.2d 354 (1997). We review the district court decision “to determine
I. CONSTITUTIONAL CHALLENGES
The constitutionality of an ordinance is a question of law that we review de novo. See City of Spokane v. Neff, 152 Wn.2d 85, 88, 93 P.3d 158 (2004). We interpret ordinances using the same rules of statutory construction we employ for statutes. City of Spokane v. Douglass, 115 Wn.2d 171, 177, 795 P.2d 693 (1990). We presume an ordinance is constitutional, and the party challenging it must prove that “the ordinance is unconstitutional beyond a reasonable doubt.” Id.
A. Vagueness
Richards suggests that
As an initial matter, when we evaluate “a void-for-vagueness challenge, we must determine whether the challenged [ordinance] involves First Amendment rights.” In re Pers. Restraint of Troupe, 4 Wn. App. 2d 715, 723-24, 423 P.3d 878 (2018). If the challenge does not implicate First Amendment rights, we evaluate the ordinance as applied to the particular facts of the case. Id. at 724. Richards does not argue that this case implicates her First Amendment rights, so we interpret her challenge as an as-applied challenge.
The due process clause of the Fourteenth Amendment to the United States Constitution “requires that citizens be afforded fair warning of proscribed conduct.” Douglass, 115 Wn.2d at 178. “To avoid unconstitutional vagueness” in violation of the due process clause, an ordinance must both “define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited,” and “establish standards to permit police to enforce the law in a nonarbitrary, nondiscriminatory manner.” Neff, 152 Wn.2d at 88-89.
In determining whether an ordinance is sufficiently definite, we consider “the context of the entire enactment” and we give the language “a sensible, meaningful, and practical interpretation.” Douglass, 115 Wn.2d at 180. An ordinance fails the definiteness requirement “when it forbids conduct in terms so vague that” ordinary people “must guess at its meaning and differ as to its application.” Id. at 179 (quoting Burien Bark Supply v. King County, 106 Wn.2d 868, 871, 725 P.2d 994 (1986)). But this test “does not demand impossible standards of specificity or absolute agreement.” Id. If ordinary people can generally “understand what the ordinance proscribes, notwithstanding some possible areas of disagreement, the ordinance is sufficiently definite.” Id. And we will not conclude that an ordinance is void for vagueness simply because we believe it “could have been drafted with greater precision.” Id.
In determining whether an ordinance provides adequate standards for enforcement, we ask whether it “proscribes conduct by resort to ‘inherently subjective terms.‘” Id. at 181 (quoting State v. Maciolek, 101 Wn.2d 259, 267, 676 P.2d 996 (1984)). But the “fact that an ordinance may require a subjective evaluation by a police officer . . . does not mean the ordinance is unconstitutional.” Id. Rather, the ordinance “is unconstitutional only if it invites an inordinate amount of police discretion.” Id.
For example, in State v. Harrington, 181 Wn. App. 805, 828, 333 P.3d 410 (2014), Division Three held that the term “extreme mental distress” in the first degree kidnapping statute did not make the statute unconstitutionally vague as applied to the defendant‘s conduct. The statute provided that a “person is guilty of” first degree kidnapping if they intentionally abduct “another person with intent . . . [t]o inflict extreme mental distress.”
In contrast, in Neff, the Washington Supreme Court held that a municipal ordinance was void for vagueness where the ordinance stated that, in determining whether a person had manifested “the purpose of” selling “an act of prostitution,” law enforcement could consider whether the person was “a known prostitute.” 152 Wn.2d at 87 (quoting former SPOKANE MUNICIPAL CODE 10.06.030(C), repealed by Spokane Ordinance C36289 (Oct. 3, 2022)). The court reasoned that “the unqualified term ‘known prostitute’ may include anyone from a person with a recent conviction for prostitution to a person who is simply loitering on a street where prostitution occurs,” so the ordinance invited “an inordinate amount of police discretion.” Id. at 91.
Here, Richards has not demonstrated beyond a reasonable doubt that
Additionally, the language of this ordinance is sufficiently definite. The ordinance states, “It is unlawful for an owner of a dangerous dog to permit the dog to be outside the proper enclosure unless the dog is muzzled and restrained by a substantial chain or leash and under physical restraint of a responsible person.”
Finally, the ordinance provides adequate standards for enforcement. Unlike the term “known prostitute” in Neff, which gave officers broad discretion in deciding who had violated the ordinance, this ordinance limits officers’ discretion. Neff, 152 Wn.2d at 91. It directs officers to focus on dogs the county has designated as dangerous. And within that category, rather than simply directing officers to focus on dangerous dogs who are unrestrained, the ordinance directs officers to focus on dangerous dogs who are not restrained by particular defined methods.
We hold that
B. Conflict Preemption
Richards argues that Wahkiakum County‘s definition of a dangerous dog conflicts with the statutory definition of a dangerous dog in violation of
Nevertheless, a “state statute preempts an ordinance if the statute occupies the field or if the statute and the ordinance irreconcilably conflict.” Watson v. City of Seattle, 189 Wn.2d 149, 171, 401 P.3d 1 (2017). “Field preemption occurs when there is express legislative intent to occupy the entire field, or when such intent is necessarily implied.” Id. Conflict preemption occurs when the ordinance “directly and irreconcilably conflicts with a state statute.” Rabon v. City of Seattle, 135 Wn.2d 278, 292, 957 P.2d 621 (1998).
An ordinance irreconcilably conflicts with a state statute where the ordinance authorizes what the legislature has forbidden or the ordinance forbids what the legislature has explicitly authorized, licensed, or required. State v. Kirwin, 165 Wn.2d 818, 825-26, 203 P.3d 1044 (2009). We will not find preemption if “the two enactments can be harmonized.” Rabon, 135 Wn.2d at 292. Thus, “a local ordinance does not conflict with a state statute in the constitutional sense merely because one prohibits a wider scope of activity than the other.” City of Seattle v. Eze, 111 Wn.2d 22, 33-34, 759 P.2d 366 (1988) (holding that there was no conflict between an ordinance and a statute criminalizing disruptive conduct on buses because neither enactment explicitly permitted any conduct, but rather differed “in terms of the scope of their prohibitions“).
For example, in Rabon, a dog owner argued that a city ordinance effectively forbidding any possession of dangerous dogs violated
Here, Rabon is controlling, so we hold that there is no unconstitutional conflict.
Richards argues that her conduct did not meet the elements for a violation of the county code or of state law.
As stated above, the rules of statutory interpretation apply to ordinances. Douglass, 115 Wn.2d at 177. We review questions of statutory interpretation de novo. Watson, 189 Wn.2d at 158.
Our primary objective in “interpreting an ordinance is to ‘ascertain and carry out the [legislative body]‘s intent’ by giving effect to the ordinance‘s ‘plain meaning.‘” Id. (quoting Arborwood Idaho, LLC v. City of Kennewick, 151 Wn.2d 359, 367, 89 P.3d 217 (2004)). We derive intent from plain language, “considering the text of the provision in question, the context . . . in which the provision is found, related provisions, and the . . . scheme as a whole.” State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013).
A. Violation of RCWC 16.08.050(F)
Richards argues that she did not violate
The plain language of these ordinances shows that the Wahkiakum Board of County Commissioners did not intend to add elements to
B. Violation of RCW 16.08.100(1)
The trial court found Richards guilty “of the crime charged” and the complaint charged her with violating the county code and
Although Richards was charged with violating
III. CHALLENGES TO RICHARDS’ SENTENCE
A. Gross Misdemeanor
Richards argues that she cannot be punished under
As noted above,
Here, the plain language of
Richards contends that because Thor did not meet the statutory definition of a dangerous dog, no statutory punishment could apply to her, so she could not be guilty of more than an infraction under the county code. The county code states that, unless otherwise provided, any violation of the chapter on potentially dangerous and dangerous dogs is a civil infraction.
B. Destruction
Richards argues that the district court could not impose a sentence that forced her to choose between having her dog destroyed and going to jail for 364 days. She contends that while a district court “has broad discretion to impose sentencing conditions tending to prevent future commission of crimes,” it was unjust to order “the relinquishment of Thor as a condition of” avoiding imprisonment. Appellant‘s Br. at 26-27. And she contends that tying her “personal freedom to the tormenting choice to kill her and her daughter‘s dog is beyond cruel and unusual” under the federal and state constitutions. Id. at 27. The state responds that the district court had authority to impose Richards’ sentence under State v. Deskins, 180 Wn.2d 68, 322 P.3d 780 (2014). We conclude that the sentence imposed was outside the scope of the district court‘s discretion.
1. State and county dog destruction schemes
After stating that it prohibits unrestrained dangerous dogs,
The county code allows destruction of a dangerous dog under specific circumstances. It allows destruction when an owner does not redeem an impounded dog within 96 hours.
2. The district court‘s discretion
We review sentencing conditions for abuse of discretion. Deskins, 180 Wn.2d at 77. It is an abuse of discretion for a trial court to exceed its statutory authority. See Cowan v. Cowan, No. 83082-1-I, slip op. at 20 (Wash. Ct. App. Aug. 28, 2023);5 State v. Kerow, 192 Wn. App. 843, 846, 368 P.3d 260 (2016).
A district court may impose a “sentence by suspending all or a portion of the defendant‘s sentence.”
District courts “have a great deal of discretion when setting probation conditions for misdemeanors and are not restricted by the Sentencing Reform Act . . . which applies only to felonies.” Deskins, 180 Wn.2d at 78. A district court may impose “conditions that bear a reasonable relation to the defendant‘s duty to make restitution or that tend to prevent the future commission of crimes.” Williams, 97 Wn. App. at 263. For example, in Deskins, the Washington Supreme Court upheld a probationary condition prohibiting a defendant convicted of animal cruelty from owning or living with animals. 180 Wn.2d at 79. The court reasoned that “the trial court used its discretion and found that letting [the defendant] own or live with animals could result in future crimes.” Id. Although the defendant argued that the animal cruelty statute did not give the trial court “the authority to prohibit living with animals during the probationary period,” the court explained that the statute ensured trial courts would prohibit ownership in certain cases but did not prevent trial courts from prohibiting ownership in others. Id. at 78-79.
While a district court‘s sentencing discretion is broad, it is not limitless. As our commissioner pointed out in her ruling granting discretionary review, Deskins does not directly address whether a district court can impose a condition on a suspended sentence that contradicts the requirements of a statute
In other contexts, the Washington Supreme Court has noted that a district court‘s authority in enforcing conditions on a suspended sentence is limited by what the legislature has authorized. See State v. Granath, 190 Wn.2d 548, 557, 415 P.3d 1179 (2018). And a court “‘ought not to attempt to do indirectly what it could not do directly.‘” Ewing v. City of Seattle, 55 Wash. 229, 236, 104 P. 259 (1909) (quoting New Orleans Waterworks v. New Orleans, 164 U.S. 471, 481 (1896)); see also Pierce County v. State, 159 Wn.2d 16, 48, 148 P.3d 1002 (2006).
It is true that the county code does not specify whether the state or county procedures apply when a dog owner violates
Regardless, neither the statute nor the county code permitted the animal control authority to destroy Thor without Richards’ permission unless it gave Richards a chance to cure the violation of
While the crime of dangerous dog at large is a gross misdemeanor, under the plain language of
Because there is no evidence in the record that the district court would have imposed the 364-day term of confinement without the condition allowing suspension of a sentence, we reverse and remand for a new sentencing hearing. Given that we remand, we need not reach Richards’ constitutional argument that the punishment was cruel and unusual.
CONCLUSION
We affirm Richards’ conviction of a gross misdemeanor under the ordinance, but we remand for the district court to clarify that Richards was not convicted of any violation of the statute. Because the district court imposed a condition on the suspension of Richards’ sentence that was untethered from statutory and county code requirements, which was an abuse of discretion, we reverse the sentence and remand for resentencing.
CJ
Glasgow, C.
We concur:
Price, J.