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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Haggblom v. City of Dillingham (08/29/2008) sp-6302
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| LISA HAGGBLOM, | ) |
| ) Supreme Court No. S- 12358 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3DI-06-00048 CI |
| ) | |
| CITY OF DILLINGHAM, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6302 - August 29, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Dillingham, Patrick J. McKay, Judge.
Appearances: Susan Mitchell, Bristol Bay Law
Center, LLC, Dillingham, for Appellant.
Krista S. Stearns, Boyd, Chandler & Falconer,
LLP, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
CARPENETI, Justice.
EASTAUGH, Justice, concurring.
I. INTRODUCTION
A Dillingham ordinance provides that any animal that
bites a person without provocation shall be deemed vicious and,
after quarantine, shall be euthanized. A Dillingham dog owner
whose dog bit a co-worker without provocation appeals the citys
order, affirmed by the superior court, for euthanasia or
banishment of the animal. Finding no constitutional or
procedural infirmity, we affirm.
II. FACTS AND PROCEEDINGS
A. Facts
On April 12, 2006, Lisa Haggblom took her dog Muneca
with her to work. She confined Muneca in her office behind a
child gate. While Haggblom was working at her desk, her co-worker
Sharron Simpson approached Haggbloms office and reached down to
open the childs gate. Muneca bit Simpson on the hand. Neither
Haggblom nor Simpson heard Muneca growl or give any other warning
that she was about to bite. Haggblom testified that she did not
see the bite occur, and Simpson testified that she did not see
Muneca until the dog bit her.
Haggblom reported the bite to the Dillingham Police
Department, and Community Service Officer (CSO) Gary Peters
investigated the incident. Peters spoke with Simpson and
observed two shallow puncture wounds with bruising on her hand.
He also claims to have spoken with Haggblom, and that she
volunteered information regarding her practices for controlling
Muneca when the dog was with her in the office. Haggblom
testified that she only signed papers and did not tell CSO Peters
her version of the story. On the basis of his investigation,
Peters deemed Muneca viciousunder the dog bite ordinance. Two
days later the city sent Haggblom official notice of the
viciousness determination and, as required by the ordinance, the
date set for euthanasia. The letter, signed by Chief of Police
Richard J. Thompson, informed Haggblom that she could appeal the
determination under Dillingham Municipal Code (DMC)
07.07.030(D)(3).
B. Proceedings
Haggblom administratively appealed the decision, and
Chief Thompson was appointed hearing officer.1 Haggblom
testified at the hearing. This was the only evidence presented
at the hearing, though Chief Thompson had reviewed the bite
report prior to the hearing. Haggblom did not ask whether she
could introduce other witnesses or be represented by counsel.
Chief Thompson upheld the viciousness determination and informed
Haggblom that Muneca must either be euthanized or banished from
Dillingham city limits. He also told her she had a right to
appeal his decision.
Haggblom filed a complaint in superior court seeking a
temporary restraining order and permanent injunctive relief. The
court granted the temporary restraining order and held a
preliminary injunction hearing on May 5. At the hearing,
Haggblom was represented by counsel. She testified on her own
behalf and also presented a dog behavior expert. Simpson, CSO
Peters, and Chief Thompson also testified. On May 11 the
superior court denied Haggbloms request for a preliminary
injunction. In a written opinion the court stated that it was
consolidating the preliminary injunction hearing with trial on
the merits pursuant to Alaska Civil Rule 65(a)(2). It therefore
denie[d] this preliminary injunction as a de novo case filed to
determine the constitutionality of the ordinance. The court held
that the ordinance was not vague and that the administrative
appeal satisfied due process requirements. The court also noted
that to the extent this decision may be considered an
administrative appeal, the court finds substantial evidence to
support the municipalitys decision. The city moved for final
judgment, and Haggblom opposed the motion and requested continued
discovery and a trial on the merits. The court entered final
judgment for the city.
Haggblom appeals.
III. STANDARD OF REVIEW
This court reviews the denial of a preliminary
injunction for abuse of discretion.2 The decision to consolidate
a preliminary injunction hearing with a trial on the merits per
Civil Rule 65(a)(2) is also reviewed for abuse of discretion.3
The superior courts interpretation of an ordinance is a question
of law reviewed de novo.4 We also review constitutional rulings
de novo.5
IV. DISCUSSION
A. Dillingham Municipal Code 07.07.030 Did Not Violate
Haggbloms Rights to Due Process.
Haggblom argues that DMC 07.07.030 violates the due
process provisions of both the Federal and Alaska Constitutions
because: (1) the ordinance does not provide meaningful process;
and (2) the ordinance is unconstitutionally vague. We address
these two arguments in turn.
1. Dillingham Municipal Code 07.07.030 provides adequate notice
and an opportunity to be heard.
1. At a minimum, due process requires that the parties receive
notice and an opportunity to be heard.6 But due process does not
require a full-scale hearing in every situation to which due
process applies.7 Under both the Federal and Alaska
Constitutions, due process analysis involves consideration of
three factors: (1) the private interest affected by the official
action; (2) the risk of an erroneous deprivation of such interest
through the procedures used and the probable value, if any, of
additional or substitute procedural safeguards; and (3) the
governments interest, including the fiscal and administrative
burdens that additional or substitute procedural requirements
would entail.8
The Dillingham ordinance lists the standards for
determining whether an animal is vicious,9 and requires that any
animal deemed vicious be euthanized.10 The ordinance also
provides that the owner of a dog deemed vicious must receive
notice: (1) of the planned time of euthanasia of the animal, (2)
that the animal will be quarantined upon issuance of the notice,
and (3) that the owner may appeal the CSOs viciousness
determination before the city manager or his designee.11 It
further provides that the appeal shall be limited to whether: (1)
the animal bit a person or domestic animal; (2) the animal caused
damage to property; (3) the bite or damage was without
provocation; and (4) the animal[,] by its actions, gave
indication that it is able to bite any person or animal without
provocation.12
Haggblom received notice of the viciousness
determination, the date of euthanasia, and her right to appeal.
She was not told that she had a right to counsel or to bring
witnesses, nor did she inquire into these options. Upon
completion of the administrative appeal, Chief Thompson informed
Haggblom that she had a right to challenge the viciousness
determination in superior court.
The first element considered under the Mathews v.
Eldridge test is the importance of the private interest affected
by the government action.13 Here, Haggbloms interest in the
continuing health and companionship of her pet is an important
one. While pets are considered property under the law of Alaska,14
we agree with the parties that the emotional bond people feel
towards their pets elevates this interest above most property.
The second element to be considered in the due process
analysis is the risk of erroneous deprivation of the private
interest and the probable value of additional procedures.15
Haggblom argues that there is a high risk of erroneous
deprivation when parties are not informed of their rights to
bring witnesses and have counsel. But her argument is
unpersuasive because her case was considered de novo at the
superior court level.16 All of the additional procedural
safeguards Haggblom requests at the administrative level,
including an impartial decision maker, were available to her in
the de novo trial in superior court.
The third and final element of the due process analysis
is the cost to the city of implementing additional procedural
safeguards.17 Haggblom is correct that the potential costs to the
city of notifying parties that they have a right to bring
witnesses and employ counsel are minimal. But Haggblom remained
free at all times to consult or employ counsel and to call
witnesses. She was also free to inquire into these areas. We
decline to impose a Miranda-style duty on the municipality to
advise litigants of procedural rights in city administrative
hearings. Moreover, given the opportunity for de novo review at
the superior court level, the failure by the city to advise
Haggblom of her procedural rights at the administrative level
does not violate her right to due process.
Balancing these factors, we conclude that the ordinance
provided Haggblom meaningful process, and that the administrative
hearing did not violate her due process rights. Haggblom
received notice and an opportunity to be heard, and she received
a de novo trial in superior court.
2. Dillingham Municipal Code 07.07.030 is not
unconstitutionally vague.
Haggblom challenges the constitutionality of the
Dillingham ordinance, claiming that the ordinances use of the
term provocation renders the ordinance unconstitutionally vague.
A duly enacted municipal ordinance is presumed to be
constitutional, and we will construe an ordinance to avoid, to
the extent possible, a finding of unconstitutionality.18
A statute or ordinance is unconstitutionally vague
when: (1) it does not give adequate notice of the prohibited
conduct, or (2) its language is so imprecise as to encourage
arbitrary enforcement.19 But even an ordinance that fails to give
adequate notice of every type of prohibited conduct may still be
sustained (1) if the offense charged falls squarely within its
prohibitions and (2) if a construction may be placed upon the
[ordinance] so that its reach may be reasonably understood in the
future.20
We first look to whether the ordinance gives adequate
notice of the prohibited conduct. DMC 07.07.030(A) provides that
[a]ny animal who bites a person or animal without provocation, or
which, by its actions, gives indication that it is able to bite
any person or animal without provocation, shall be deemed
vicious. DMC 07.07.030(D) provides that [v]icious animals shall
be euthanized, as established in Section 7.11.010, by the
community service officer or agent not less than forty-eight
hours after providing actual written notice to the owner or
keeper of the dog.
Haggblom argues that the term provocation, without
definition, is so vague as to not give adequate notice of what
conduct is prohibited. She points to city council transcripts,
not presented below, that purportedly show council members
discussing gray areas in the animal ordinance and the need for
definitions of terms such as provocation. She also discusses the
difference between provocation from a human perspective and
provocation from a dogs perspective.
Haggbloms arguments are unpersuasive. Whatever the
outside bounds of without provocation might be, this case falls
squarely within the phrases plain meaning.21 Both Haggblom and
the bite victim agreed that the victim merely walked to Haggbloms
door and put her hand on the childs gate. No reasonable person
would conclude that the victim provoked Muneca. As the superior
court noted, it is impractical to argue that a person must
anticipate each and every peculiarity of every animal he or she
is exposed to and, if they guess wrong, they are at fault for
provoking the animal.
A law may also be deemed vague when it shows potential
for arbitrary or selective enforcement.22 If a statute or
ordinance is so imprecise that it confers upon . . . law
enforcement personnel undue discretion in determining what
constitutes the crime, it can be held void for vagueness.23 A law
will not be invalidated merely because it shows a potential for
arbitrary enforcement; there must be evidence of a history of
arbitrary application.24
Haggblom contends that the superior courts
consolidation of the trial with the preliminary injunction
hearing prevented her from seeking evidence regarding past
enforcement of the ordinance. As a preliminary matter, the city
argues that Haggblom waived this argument when her attorney
stated at the preliminary injunction hearing that weve probably
put in almost all the evidence that would come in in this case.
We agree with Haggblom that the argument was not waived. The
attorney did not make a definite statement, instead using the
qualifying terms probably and almost. Furthermore, the attorney
could not have known the weight that would be given to her words,
because the superior court gave no notice that the hearing might
be consolidated with the trial. Haggbloms attorney made an
abstract statement about evidence; she did not ask the court to
consolidate, nor did she agree to consolidate. Thus, fairness
dictates consideration of Haggbloms argument.
Haggblom makes two specific assertions to support her
claim that there is a history of arbitrary enforcement of the
ordinance, neither of which is persuasive. First, Haggblom
claims that CSO Peters conceded that, when enforcing the
ordinance, he arbitrarily decides whether an animal has acted
with provocation. This misstates Peters actual statement: In
response to the question, isnt it true that youre basically
determining what provocation is[,] based on your own judgment?
Peters answered yes.
It is hardly surprising that a law enforcement officer
uses his judgment in applying the law. This does not constitute
arbitrary action, and acknowledgment that one uses ones own
judgment is hardly a concession of arbitrary action. We have
already determined that the meaning of without provocation is
sufficiently clear in the statute, and that Munecas actions fall
within the phrases plain meaning. Further, as we have previously
held, [e]nforcement of criminal laws of necessity involves some
degree of discretion.25 This principle certainly applies to the
enforcement of municipal ordinances.
Haggblom next asserts that the she was given the option
to remove Muneca from within city limits rather than have her
euthanized, and that because this option of banishment is not
explicitly provided for in the ordinance, the ordinance was
arbitrarily enforced. This action fails, however, to show any
arbitrariness in determining what constitutes provocation.
Instead, it shows only that, after correctly determining that
Munecas actions fit the description of the prohibited conduct,
the city extended to Haggblom a less severe consequence than is
normally provided by the ordinance. This showing of leniency
came after a determination, on the evidence, that Muneca
qualified as a vicious animal under the terms of the ordinance.
Showing leniency does not demonstrate arbitrary enforcement.
In addition to these two allegations of specific
examples of arbitrary enforcement in this case, Haggblom also
claims that if she had been given an adequate opportunity to
conduct discovery she would have unearthed bite reports from
previous years that would have revealed a history of arbitrary
enforcement of the ordinance. As stated above, we will construe
an ordinance narrowly to avoid a finding of unconstitutionality.26
We will not hold a statute void for vagueness if the statute has
been shown to have a plainly legitimate sweep.27 In this case, we
have already established that the facts fall within the hard core
of the ordinance,28 and that there was no arbitrary enforcement of
the ordinance. This conclusion demonstrates the legitimate sweep
of the ordinance. Therefore, although we acknowledge the
possibility that, had she been allowed more time, Haggblom may
have been able to unearth a case showing arbitrary enforcement of
the statute on the margins, such a finding could not have altered
our conclusion that the ordinance has a plainly legitimate sweep,
and that the undisputed facts in this case fall within the core
of the statute. We do not need to consider at this time whether
the ordinance is capable of, or has been subject to, arbitrary
enforcement in cases that fall outside of the legitimate, solid
core of the ordinance.
Because the ordinance provides adequate notice of the
prohibited conduct and the language of the ordinance is
sufficiently precise, we conclude that DMC 07.07.030 is not
unconstitutionally vague.
B. The Superior Court Did Not Err in Consolidating the
Hearing on Preliminary Injunctive Relief with a Trial on
the Merits.
Alaska Civil Rule 65(a)(2), based on Rule 65 of the
Federal Rules of Civil Procedure, provides that [b]efore or after
the commencement of the hearing of an application for a
preliminary injunction, the court may order the trial of the
action on the merits to be advanced and consolidated with the
hearing of the application. We have not addressed Rule 65(a)(2)
directly, but the United States Supreme Court has held that the
parties should normally receive clear and unambiguous notice [of
the courts intent to consolidate the trial and the hearing]
either before the hearing commences or at a time which will still
afford the parties a full opportunity to present their respective
cases.29
The superior court here did not indicate either
before or during the preliminary injunction hearing that it was
consolidating the hearing with a trial on the merits.30 The first
notice to the parties that the proceedings were consolidated was
in the courts Order On Preliminary Injunction, in which it held
that the ordinance was constitutional and the citys decision was
supported by substantial evidence.
The city argues that notwithstanding the general
requirement of notice, the courts discretion should not be
overturned on appeal absent a showing of substantial prejudice in
the sense that a party was not allow[ed] to present material
evidence. This proposition finds support in federal case law.
When a court orders consolidation during the course of a
preliminary injunction hearing, a party contesting the entry of
final judgment at the preliminary injunction stage . . . must
demonstrate prejudice as well as surprise.31 In addition, if it
is clear that consolidation did not detrimentally affect the
litigants, as, for example, when the parties in fact presented
their entire cases and no evidence of significance would be
forthcoming at trial, then the trial courts consolidation will
not be considered to have been improper.32
Courts will uphold consolidation of proceedings when
the preliminary injunction hearing was sufficiently thorough to
remove any risk of prejudice.33 The sufficiency of the
proceedings is determined on a case by case basis.34 Here, the
superior court heard arguments from both parties, and ruled on
all of the issues before it. Haggblom must show that she suffered
prejudice because she was denied a chance to present evidence
that would allow her to prevail at trial.35
Haggblom asserts that she could have presented
additional evidence regarding vagueness had there been a trial on
the merits. She points to a transcript of a Dillingham City
Council meeting in which concern was expressed that important
terms in DMC 07.07.030 were not defined. But the only examples
cited were of animal activity at the margins of the ordinance.36
She also notes that had there been discovery she could have
requested records of prior enforcement of the ordinance to
determine whether it had been enforced unevenly. Finally, she
asserts that given more time her animal behavior expert could
have evaluated Muneca.
We have already addressed the vagueness question above,
determining that the term provocation is sufficiently clear as
applied in this case where, without any warning or provocation,
the dog bit a person, leaving two puncture wounds and bruising.
The opinions of one unidentified city council member and one
public member to the contrary are unpersuasive and irrelevant to
this inquiry. We have also already determined that the ordinance
has a legitimate sweep and that the facts of this case fall
within the solid core of the statute, thus negating the probative
value of any previous instances of allegedly arbitrary
enforcement of the ordinance at the margins. We are similarly
unpersuaded that the testimony of an animal behavior expert not
present at the time of the bite could have made any difference in
the trial courts final conclusions. The ordinance clearly lays
out the requirements that must be met for a determination of
viciousness. The testimony of the only two witnesses to the
incident, Haggblom and Simpson, is sufficient to support a
conclusion that these requirements were met in this instance.
Because Haggblom has not shown that there was any additional
evidence of significance that would have been forthcoming at
trial that could have allowed her to prevail, we conclude that
the consolidation of the proceedings did not prejudice Haggblom
and therefore there was no error.
V. CONCLUSION
Because the ordinance did not violate Haggbloms due
process rights, the city did not violate Haggbloms due process
rights in applying the ordinance, and the superior court did not
err in consolidating the hearing on preliminary injunctive relief
with the trial on the merits, we AFFIRM the superior courts
judgment in all respects.
Eastaugh, Justice, concurring.
Dillinghams vicious animal ordinance and the
administrative and lower court appellate proceedings are
remarkably problematic. Because Haggblom has not demonstrated
that these problems actually prejudiced her attempt to protect
her dog, Muneca, I concur in the result reached today, but write
separately to call attention to deficiencies in the ordinance,
its administrative enforcement, and the superior court appeal.
My comments are not driven by undue sympathy for
Muneca or her owner. The evidence permits an objective fact
finder to find that Muneca bit Simpson without provocation. Even
though the bite was minor,1 the dogs undisputed conduct places
Muneca squarely within the class of animals subject to
Dillinghams legitimate interest in public safety. It also makes
Muneca subject to appropriate sanctions under any well-drafted
ordinance.
But todays opinion implies that there is nothing wrong
with Dillinghams ordinance, in the way Dillingham applied it to
Muneca, or in the way the superior court appeal proceeded.2
These implications require response.
The ordinance. Dillinghams animal control ordinance
contains sixteen chapters, only one of which is implicated here.
Chapter 7 deals with nuisance animals,3 dangerous animals,4 and
vicious animals.5 Muneca was found to be a vicious animal. The
ordinance does not define vicious6 as such, but classifies as
vicious any animal that bites a person or animal without
provocation (or gives an indication it is able to bite without
provocation).7 Vicious animals are to be euthanized within forty-
eight hours, following any necessary quarantine period.8 The
issues at any appeal hearing for an animal that allegedly bit
without provocation are strictly limited to whether the animal
bit a person or another animal and whether the bite was without
provocation.9
Its length may imply that Dillinghams animal control
ordinance is comprehensive. But comparison with the animal
control ordinance we recently reviewed in West v. Municipality of
Anchorage10 reveals that Dillinghams ordinance provides an
inflexible and arbitrary process for dealing with animals that
bite without provocation. The Anchorage ordinance contains five
behavioral classifications, three of which distinguish between an
animal that bites, an animal that inflicts an aggressive bite,
and an animal that causes serious physical injury.11 It also
lists eight types of exceptions.12 And in addition to
euthanasia, it describes a broad range of lesser restrictions for
three of the classification levels that presuppose unexcepted
biting.13
In comparison, Dillingham treats all animals inflicting
unprovoked bites the same, classifying them as vicious.14 In
theory it requires that they all be euthanized.15
Dillinghams vicious animal ordinance has two particular
deficiencies.
First, it provides no functional standards for
distinguishing vicious animals from non-vicious animals. The
ordinance does not distinguish between the horse that playfully
or mistakenly nips someone giving it a carrot and the dog that
escapes its yard and mauls a child. It does not distinguish
between animals indisputably vicious and those indisputably not.
It contains no standards that tell enforcers how to administer
the ordinance in practice; it likewise does not tell those
subject to enforcement how to determine whether their animal is
vicious and exposed to euthanasia. This means owners have no
announced standards to guide them in deciding whether and how to
dispute a viciousness classification and oppose the animals
destruction. Likewise, the ordinance contains no standards
distinguishing those animals subject to the citys legitimate
interest in safety from those that are not. It similarly contains
no standards distinguishing those animals requiring the most
severe sanction from those for which destruction is not needed,
and for which destruction is not a rational or permissible
governmental response. An animal whose bite is unprovoked
is vicious, per DMC 07.07.030(A). But there is no standard for
determining provocation. Is throwing a stone or pulling an
animals tail provocation? Is a sudden move to pat the head of a
growling dog or a skittish horse? Is teasing a dog with a
biscuit or a horse with a carrot? Does it matter whether the
victim is a child or an adult? Provocation sufficient to excuse
a minor nip might not be sufficient to excuse a mauling.
Determining whether there was provocation may be particularly
difficult if one animal bites another, as when a chance meeting
escalates from mutual sniffing to mutual biting.
Second, the ordinance fails to take into account the
severity of the bite. There is no rational reason why the
ordinance requires the same penalty euthanasia for the dog
that nips and the dog that mauls.
As we will see, there is evidence the city does draw
distinctions when it enforces the ordinance: its officers decide
whether an animal is vicious and whether a sanction other than
death is possible. But they do so without any published
standards to be found in the ordinance and without any rational
standards explained in this case.
Haggblom challenges the ordinance as vague. I agree,
to the extent viciousness depends on whether an animal acted
without provocation. But the ordinance is not otherwise vague:
it is specific in describing the animals to which it applies (all
those that bite or might bite); it treats all animals that bite
the same. This sweeping specificity does not save its
impermissible scope. Even if they are unprovoked, it is
arbitrary to treat all biting animals the same.
Enforcement. Haggblom complains of arbitrary
enforcement; she unsuccessfully sought to conduct discovery on
the topic.
Her arbitrary enforcement complaint seems well-taken.
The city, in enforcing the ordinance, appears to distinguish on
an ad hoc basis between animals its officers consider vicious and
those they do not.16 The latter are apparently not cited at
all.17 The former are theoretically subject to the only sanction
the ordinance permits: death. Despite this ostensible lack of
discretion in choosing a remedy, there is evidence enforcement
officers do exercise discretion as to sanction. They decide
whether death is required, or whether to allow the owner to ship
the animal out of the city. In choosing to apply the ordinance
to some animals that have bitten a person and not to others, the
city acts arbitrarily,18 because the ordinance confers no
enforcement discretion to the city and contains no standards by
which enforcing officers can make reasoned decisions to apply
sanctions to one animal that has bitten and not to another.19
Perhaps in practice city officers have accurately
distinguished between animals that need to be regulated and those
that dont. And perhaps they have also accurately decided which
animals might, like thieves in Nineteenth-Century England, be
offered transportation to distant shores as an alternative to
death.20 But there is no assurance the enforcement
classification for any given animal is valid, because the
ordinance contains no standards for determining the validity of
the classification. As a result, enforcement officers, animal
owners, those trying to decide whether to dispute administrative
enforcement, those appealing administrative decisions, and
appellate judges are all without guidance. Even assuming that
the only rights implicated are the owners property rights,
arbitrary interference with those rights is likely.21 It is no
consolation that some dogs may, by meeting unspecified criteria,
avoid death if they are offered blue tickets out of the city.22
Such an offer may spare an animals life, but makes it impossible
for the owner who remains in Dillingham to exercise most property
rights, let alone any arguably more-important rights arising out
of the animals companionship.
It is also probable some animals will be euthanized
that could, if their owners appealed, satisfy the citys
unpublished standards for banishment: the absence of published
standards makes it hard for an owner to decide rationally whether
the cost of defending the animal is worth the risk the defense
will be fruitless. The absence of standards particularly impedes
those owners financially or intellectually least able to defend
their animals or find them new and distant homes if the defense
fails.
As it turns out, the danger of arbitrary enforcement
does not help Haggblom: there is no reasonable dispute that
Muneca is validly subject to regulation; the evidence permitted a
finding that Muneca was not provoked and Haggblom produced no
contrary evidence; Haggblom has not argued that the bite was not
serious enough to justify euthanasia or banishment; and Chief
Thompsons offer of a blue ticket out of Dillingham removes the
threat of the most serious possible consequence, unjustified
euthanasia. Nor has Haggblom asserted that she is financially
unable to defend Muneca or save her life by shipping her away.
Appeal. Haggblom argues that the procedure followed
in her superior court appeal deprived her of the opportunity to
conduct discovery and present expert testimony. Haggblom
correctly asserts that the superior court converted the
preliminary injunction hearing into a de novo trial on appeal
without giving advance notice of its intention. That procedure
was problematic because consolidation under Alaska Civil Rule
65(a)(2) must be tempered by the due process principle that fair
notice and an opportunity to be heard must be given the litigants
before the disposition of a case on the merits.23
In my view, it was error to treat the preliminary
injunction hearing as a trial without giving prior notice of that
intention. But Haggblom has not demonstrated that this error was
prejudicial. Her lawyer stated at the hearing that weve
probably put in almost all of the evidence that would come in in
this case and if were - - it was listed as a preliminary
injunction hearing. We would ask for a preliminary injunction
and eventually well be asking that the ordinance be set aside.
And she did not seek reconsideration with a proffer of relevant
evidence. She was not obliged to seek reconsideration to reserve
the issue, but she was obliged to let the superior court know
that she objected to resolving the case on the merits without
being able to offer relevant evidence. Had she made that
objection, accompanied by either an offer of proof or an
explanation how discovery would be relevant to Munecas case, the
error here would have required reversal. But absent any such
objection, we have no basis for holding that this procedural
error harmed her.
Expert evidence. Todays opinion states that no animal
behavior expert who was not present when Muneca bit Simpson could
have offered evidence that would have made a difference in the
trial courts conclusions.24 Some readers might read this
statement to express an opinion that an expert could offer no
relevant information. But an expert in animal behavior who was
not present might, by responding to hypothetical questions, offer
relevant opinions regarding the animals alleged viciousness.
That topic would also be relevant to a challenge to the validity
of the ordinance on the theory it arbitrarily treats non-vicious
animals as vicious. An expert could also discuss what
circumstances would amount to provocation for a non-vicious
animal. And after examining the animal, an expert could also
offer opinions about its potential for unwarranted and unprovoked
biting, evidence tending to show whether the bite was in fact
provoked. This evidence would also be relevant to a contention
euthanasia is not a rational sanction for the subject animal.
Haggblom did not offer the evidence for any of these purposes,
but that does not mean an expert in such a case could say nothing
that might affect the outcome.
Conclusion. The undoubted legitimacy of Dillinghams
interest in preventing unprovoked dog bites is subject to
requirements of fair notice and an opportunity to be heard. The
deficiencies in the ordinance, its enforcement, and the appeal
would require reversal if they were not deemed harmless.
_______________________________
1 DMC 07.07.030(D) provides for the City Manager or his
designee to hear euthanasia appeals.
2 Smallwood v. Cent. Peninsula Gen. Hosp., 151 P.3d 319,
322 (Alaska 2006).
3 See D.L. Cromwell Invs., Inc. v. NASD Regulation, Inc.,
279 F.3d 155, 158 (2d Cir. 2002).
4 See State, Dept of Revenue v. Andrade, 23 P.3d 58, 65
(Alaska 2001).
5 Id.
6 Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d
1018, 1026 (Alaska 2005) (quoting Hickel v. Halford, 872 P.2d
171, 179-80 (Alaska 1994)).
7 Id. (quoting Frontier Saloon, Inc. v. Alcoholic
Beverage Control Bd., 524 P.2d 657, 661 (Alaska 1974)).
8 Id. (noting that this balancing test was adopted from
federal due process test articulated in Mathews v. Eldridge, 424
U.S. 319, 335 (1976)).
9 DMC 07.07.030(A) provides in relevant part:
Any animal who bites a person . . . without
provocation . . . shall be deemed vicious.
10 We note that, according to the Alaska Department of
Health and Social Services, Division of Public Health, the
incidence of dog bite injury deaths in Alaska was much higher
than that of the nation at 123 versus 7.1 per 100 million
population per year, respectively. Alaska Dept of Health & Soc.
Servs., State of Alaska Epidemiology Bull. No. 35, Deaths and
Hospitalizations from Dog Bite Injuries Alaska, 1991-2002
(2007). The department also reported that Alaska hospitalization
rates . . . were higher than in other studies . . . . Id. From
1991-2002, nine deaths and 288 hospitalizations were reported
from dog bites in Alaska. Id. For the same period, the
Associated Press reported that Alaska led the nation in dog bite
injury deaths and hospitalizations. Alaska Leads in Dog Bites,
Anchorage Daily News, Jan. 21, 2008, at A9.
11 DMC 07.07.030(D) (2003).
12 DMC 07.07.030(E) (2003).
13 Mathews, 424 U.S. at 335.
14 Richardson v. Fairbanks N. Star Borough, 705 P.2d 454,
456 (Alaska 1985) (noting that legally dogs are considered
personal property).
15 Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d
1018, 1026 (Alaska 2005).
16 Haggbloms due process argument considers only the
administrative hearing offered under DMC 07.07.030, and does not
address any alleged procedural errors from the superior court
hearing.
17 Laidlaw, 118 P.3d at 1026.
18 Treacy v. Municipality of Anchorage, 91 P.3d 252, 260
(Alaska 2004).
19 R.R. v. State, 919 P.2d 754, 758 (Alaska 1996) (citing
Summers v. Anchorage, 589 P.2d 863, 866-67 (Alaska 1979)). A
third factor, not relevant to the case at hand, applies only
where the statute or ordinance in question is alleged to chill
the exercise of First Amendment rights. Id.
20 Summers, 589 P.2d at 867-68 (quoting Larson v. State,
564 P.2d 365, 372 (Alaska 1977)) (holding that statute was not
unconstitutionally vague when appellants behavior fell within
hard core of statute so that they had notice of prohibited
behavior, and when appellants presented no evidence of previous
arbitrary enforcement of statute).
21 See id. at 868 (It is sufficient to note that even if
the outermost boundaries of (the challenged statute) may be
imprecise, any such uncertainty has little relevance here, where
appellants conduct falls squarely within the hard core of the
statutes proscriptions. (quoting Broadrick v. Oklahoma, 413 U.S.
601, 608 (1973))).
22 Id.; see also Levshakoff v. State, 565 P.2d 504, 507
(Alaska 1977) (holding that appellant could not assert claim that
statute did not give fair notice of prohibited conduct because
his conduct fell within hard core of the statute, but
nevertheless considering his argument that the statute was
capable of arbitrary enforcement).
23 Levshakoff, 565 P.2d at 507.
24 Id. at 507-08.
25 Larson, 564 P.2d at 372.
26 Treacy v. Municipality of Anchorage, 91 P.3d 252, 260
n.14 (Alaska 2004).
27 See id. (holding that juvenile curfew ordinance was
not void for vagueness because despite any occasional problems it
might create in its application to specific cases, the ordinance
has a plainly legitimate sweep).
28 See Summers v. Anchorage, 589 P.2d 863, 868 (Alaska
1979).
29 Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)
(alteration in original) (quoting Pughsley v. 3750 Lake Shore
Drive Coop. Bldg., 463 F.2d 1055, 1057 (7th Cir. 1972)).
30 During the hearing, the court and parties referred to
the proceeding as a preliminary injunction hearing.
31 11 Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure 2950 (2d ed. 1995).
32 Id.
33 See AM Gen. Corp. v. DaimlerChrysler Corp., 246 F.
Supp. 2d 1030, 1033-35 (N.D. Ind. 2003) (holding that findings
and conclusions of law made at preliminary injunction hearing can
have preclusive effect).
34 Id. (holding that sufficiency of proceedings will
depend on specific circumstances of hearing at issue).
35 See Wright, Miller & Kane, supra note 31.
36 One speaker expressed concern that her dog, a large
Malamute, might inadvertently knock a child over while trying to
show affection for the child. One council member agreed that
some of these definitions probably should be defined.
1 CSO Gary Peters described the bite as a small puncture
wound just above the middle finger knuckle that just broke the
skin, and there was some bruising there too. CSO Peterss
incident narrative states that [he] asked if [Simpson] was going
to seek medical assistan[ce] [and Simpson] said that she didnt
think it was that bad.
2 See Slip Op. at 8-11, 12-15.
3 Dillingham Municipal Code (DMC) 07.07.010 (2006).
4 DMC 07.07.020.
5 DMC 07.07.030 provides in part:
A. Any animal who bites a person or animal
without provocation, or which, by its
actions, gives indication that it is able to
bite any person or animal without
provocation, shall be deemed vicious.
B. Any animal who bites a person or animal
without provocation and is currently
vaccinated, shall be immediately quarantined
for no less than ten days at the expense of
the owner. A date of euthanasia for the
animal shall be scheduled for no less than
forty-eight hours after completion of
quarantine.
C. Any animal who
bites a person
or animal
without
provocation and
is
unvaccinated,
shall be
immediately
impounded and
quarantined for
no less than
ten days at the
expense of the
owner or
keeper, and the
owner or keeper
may be found in
violation of
Chapter 7.13,
subject to fees
and/or fines
established
within Sections
7.16.010 and
7.16.020, and
to comply with
Chapter 7.14.
Before
completion of
quarantine, the
owner or keeper
will be given a
written notice
of the date of
euthanasia. A
date of
euthanasia
shall be
scheduled for
no less than
forty-eight
hours after
completion of
quarantine.
D. Vicious animals shall be euthanized, as
established in Section 7.11.010, by the
community service officer or agent not less
than forty-eight hours after providing actual
written notice to the owner or keeper of the
dog, by hand delivery to the owner or keeper,
or by posting at the last known residence of
the owner or keeper. Such notice shall
advise the owner or keeper of the following:
1. Planned time of euthanization of the
animal;
2. That the animal will be impounded and/or
quarantined immediately upon issuance of
notice;
3. That the owner or keeper has an
opportunity to be heard before the city
manager, or the city managers designee,
should they wish to appeal the community
service officers or agents determination that
the animal is vicious.
6 DMC 07.02.010 defines nuisance animal and more than
thirty other words or terms, but not dangerous animal or vicious
animal.
7 DMC 07.07.030(A).
8 DMC 07.07.030(B)-(C).
9 DMC 07.07.030(E). Subsection E states:
The issues to be considered at any appeal
hearing shall be limited to the following:
1. Whether the animal bit a person or
domestic animal;
2. Whether the animal caused damage to
property;
3. Whether the bite or damage was
without provocation;
4. Whether the animal by its actions,
gave indication that it is able to
bite any person or animal without
provocation.
10 West v. Municipality of Anchorage, 174 P.3d 224 (Alaska
2007) (discussing Anchorage Municipal Code (AMC) 17.40.010-.100,
which provides five levels of animal behavior classification and
corresponding animal restrictions ranging from leashing
requirements to euthanasia); AMC 17.40.020(A)(4) (Level four
behavior is established if any of the following occur: a. An
unrestrained animal inflicts an aggressive bite or causes
physical injury to any human; or b. An unrestrained animal kills
a domestic animal that is restrained; or c. An animal, regardless
of whether it is restrained, for the second time injures or kills
a domestic animal.).
11 AMC 17.40.020(A)(2)-(5).
12 AMC 17.40.020(B).
13 AMC 17.40.040.
14 DMC 07.07.030(A).
15 DMC 07.07.030(B)-(C).
16 CSO Peters testified that his animal control training
included some ride-alongs with the sergeants showing [him] what
to do and going over the city ordinances and reading them and
that he attended National Animal Control Association classes.
Because DMC 07.07.030 does not contain standards for
administration, effective application of this training to animal
behavior classification seems impossible.
17 DMC 07.07.030(C)-(D) (owner of vicious animal to be
provided notice of euthanasia date); DMC 07.07.020(D) (community
service officer may issue citation or warning to owner of
dangerous animal).
18 Under DMC 07.07.030 an animal that is deemed vicious
must be euthanized. But it appears that Chief Richard Thompson
sometimes offers owners alternatives to euthanasia. Chief
Thompson testified in superior court that Muneca would not be
euthanized if Haggblom shipped Muneca out of Dillingham:
Q . . . Did you talk to her about the
option of having the dog shipped out of
Dillingham?
A Yes, maam.
Q And in your mind, that was a possible
option for [Muneca] as a result of your.
. . .
A That was one possible option, yes.
Chief Thompson did not give a reason for deviating from the only
sanction required or permitted by the ordinance and he did not
describe what other possible options to euthanasia are available.
19 Ending this exercise of discretion will not save the
ordinance, which is arbitrary in requiring euthanasia for all
animals that inflict unprovoked bites.
20 See generally Schick v. Reed, 419 U.S. 256, 261-62
(1974) (discussing banishment as punishment); see also United
States v. Blake, 89 F. Supp. 2d 328, 341-43 (E.D.N.Y. 2000)
(providing historical discussion of criminal rehabilitation and
noting England banished prisoners to the American Colonies and .
. . Australia); Robert Hughes, The Fatal Shore: The Epic of
Australias Founding (1987).
21 See generally Susan J. Hankin, Not a Living Room Sofa:
Changing the Legal Status of Companion Animals, 4 Rutgers J.L. &
Pub. Poly 314, 343 (2007) (noting courts have actually been
willing to entertain the idea that animals are in a different
legal category from inanimate property).
22 See generally Mike Doogan, How To Speak Alaskan 14
(BLUE TICKET - A one way passage out of Alaska, awarded in
earlier times to suspected criminals and other undesirables by
the authorities.).
23 11 Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure 2950 (2d ed. 1995) (citing
Pughsley v. 3750 Lake Shore Drive Coop. Bldg., 463 F.2d 1055 (7th
Cir. 1972)). This treatise suggests that [a]lthough each case
will depend on its own circumstances, the ten-day notice
requirement of Rule 56 for summary judgment motions might be
taken as suggestive of the minimum amount of time necessary to
permit a litigant to prepare a showing upon which the final
outcome of the case may depend. Id.
24 Slip Op. at 15.
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