from the Iowa District Court for Polk County, Lawrence P.
owner appeals the denial of her writ of certiorari.
L. Hunter of Dickey & Campbell Law Firm, P.L.C., Des
Moines, for appellant.
O. Haraldson, Assistant City Attorney, for appellee.
by Danilson, C.J., and Vaitheswaran, Doyle, Tabor, and
appeal involves the legality of a dangerous animal
declaration issued by the City of Des Moines. A dog, Pinky,
bit a neighbor's cat, Rebel, when both animals were
unlicensed and running at large in March 2016. After
impounding Pinky at the Animal Rescue League, the city's
chief humane officer decided the dog exhibited "vicious
propensities" under Des Moines Municipal Code section
18-196 (2016) and ordered her to be destroyed. Because we
find the dangerous-animal ordinance to be unconstitutionally
vague as applied to Pinky, we reverse the city's
Facts and Prior Proceedings
2010, the city sent an animal control officer to the home of
Charles Bickel based on a report his dog resembled a pit
bull. At that time, the city declared Bickel's pet,
Pinky, to be a "vicious dog" based on her
breed and required Bickel to provide proof of a
current license and $100, 000 of liability insurance
coverage. Bickel initially complied but did not keep
Pinky's license up to date. According to Bickel, for the
next six years Pinky lived in his home without incident,
never biting a person or another animal. Then, on March 27,
2016, a friend visiting Bickel's home accidently let
Pinky out into the yard unsupervised while Bickel was taking
a shower. When Bickel saw Pinky head back into the house he
noticed a cut on her face and blood on her nose.
Bickel's neighbor, Elizabeth, noticed her cat, Rebel,
"had managed to sneak out of the door and was in her
backyard." According to the animal incident report:
Elizabeth looked out the back window to see the
neighbor's white Pit Bull type dog named
"Pinky" shaking Rebel in her mouth. Elizabeth ran
outside and yelled. Pinky dropped Rebel and Rebel ran up a
tree where she stayed for an hour. . . . When Rebel came
down, Elizabeth found punctures on her chest and took her to
Iowa Vet Specialties. . . . Elizabeth believes Rebel
scratched Pinky up as well, but is unsure of bite wounds.
initially told Bickel's friend "it looks like Rebel
got the better of Pinky." But according to the
veterinary records, Rebel had a "large laceration/wound
on the right side of the dorsal pelvic area, approximately 6
centimeters in diameter, with an additional wound" and
"punctures on the right thorax, just caudal to the
thoracic limb." The vet described Rebel's injuries
as "crushing injury to tissues resulting in
devitalization" and "severe degloving wounds."
The cat required three dozen staples.
witness saw which animal was the initial aggressor in the
city impounded Pinky on March 29, 2016. The quarantine was
set to last seven days, with Pinky's release slated for
April 6. But on April 5, Chief Humane Officer James Butler
declared Pinky to be a dangerous dog based on her conduct.
See Des Moines, Iowa, Code § 18-196(3), (6).
After a conversation with Sergeant Butler, Bickel signed a
document labeled "surrender conditions, " but the
next day Bickel had a change of heart and filed an
administrative appeal. After filing the appeal, Bickel sold
his interest in Pinky to Dianna Helmers. The administrative
law judge (ALJ) did not believe either Bickel or Helmers had
standing to pursue the appeal but nevertheless reached the
merits of Helmers's arguments.
decided Pinky's seizure was procedurally proper and found
substantial evidence supported the dangerous animal
declaration. The ALJ noted Helmers's claim that the
ordinance was unconstitutionally vague:
The Appellant argues in the alternative that the dangerous
dog ordinance is unconstitutional for being vague and broad.
The Appellant argues that under section 18-196, there is no
element of provocation or a provision for self-defense.
Therefore, a dog that was attacked by an at-large, vicious
animal, or a dog protecting a human, could be considered a
dangerous dog. The Appellant further argues that the terms
"disfiguring laceration" and "corrective
surgery" are ambiguous, as they are not defined by City
those constitutional claims were beyond the purview of the
administrative proceedings, the ALJ preserved them for
judicial review. See McCracken v. Iowa
Dep't. of Human Servs., 595 N.W.2d 779, 785
(Iowa 1999) (discussing necessity of raising constitutional
claims during administrative process).
filed a petition for writ of certiorari to the district
court, which affirmed the ALJ's finding of substantial
evidence to support the dangerous dog
declaration. Helmers filed a motion to enlarge,
pointing out the district court did not address her argument
that the dangerous-dog ordinance was unconstitutionally
vague. In response, the district court upheld the
constitutionality of the ordinance. Helmers now appeals the
district court's rulings.
Scope and Standards of Review
review of a district court certiorari ruling is generally for
the correction of errors at law. Iowa R. Civ. P. 1.1412
(stating appeal from a district court's judgment in a
certiorari proceeding is "governed by the rules of
appellate procedure applicable to appeals in ordinary civil
actions"); see Dressler v. Iowa Dep't of
Transp., 542 N.W.2d 563, 564-65 (Iowa 1996).
"Because [Helmers] alleges a constitutional violation,
our review is de novo." See id.
keeping of "dangerous animals" is prohibited within
the city of Des Moines. Des Moines, Iowa, Code § 18-200.
The municipal code defines a "dangerous animal" as:
any animal, including a dog, except for an illegal animal per
se, as listed in the definition of illegal animal, that has
bitten or clawed a person while running at large and the
attack was unprovoked, or any animal that has exhibited
vicious propensities in present or past conduct, including
such that the animal:
(1) Has bitten or clawed a person on two separate occasions
within a 12-month period;
(2) Did bite or claw once causing injuries above the
shoulders of a person;
(3) Could not be controlled or restrained by the owner at the
time of the attack to prevent the occurrence; or
(4) Has attacked any domestic animal or fowl on three or more
separate occasions within the lifetime of the attacking
(5) Has killed any domestic animal while off of the property
where the attacking animal is kept by its owner.
(6) Has bitten another animal or human that causes a
fracture, muscle tear, disfiguring lacerations or injury
requiring corrective or cosmetic surgery; or
(7) Any animal that was required to be removed from another
city or county because of behavior that would also meet the
definition of "dangerous animal" as set out in this
Des Moines, Iowa, Code § 18-196.
case, the chief humane officer declared Pinky was a dangerous
animal under paragraphs (3) and (6) of section 18-196.
Because the ALJ upheld the declaration under paragraph (6)
only, Helmers need not challenge the alternative ground as
illegal in this certiorari appeal.
devotes the lion's share of her brief to arguing the
city's dangerous dog declaration was not supported by
substantial evidence. Evidence is substantial when reasonable
minds could accept the quality and quantity of proof as
adequate to reach the same findings as the hearing officer.
See City of Des Moines v. Webster, 861 N.W.2d 878,
882 (Iowa Ct. App. 2014). If the reasonableness of the
hearing officer's decision is open to a fair difference
of opinion, courts may not substitute their own decisions on
questions of substantial evidence. Id. But rather
than retracing the district court's analysis of the
substantial-evidence question, we find dispositive
Helmers's claim that the city's dangerous-animal
ordinance was unconstitutional as applied to Pinky.
See U.S. Const. amend. XIV, Iowa Const. art. I,
process requires legislation imposing a
sanction to give a person of ordinary intelligence
fair notice of what conduct is prohibited so he or she may
act accordingly. Am. Dog Owners Ass'n, Inc. v. City
of Des Moines, 469 N.W.2d 416, 417-18 (Iowa 1991). Due
process also requires the enactment to provide explicit
standards for those who enforce it and must not delegate
basic policy matters to law enforcement or judicial officers.
Id. at 418. In assessing whether the city's
ordinance is void for vagueness, we presume constitutionality
and give the provision any reasonable construction to uphold
it. See State v. Showens, 845 N.W.2d 436, 441 (Iowa
2014). The practical effect of deciding an ordinance is
unconstitutional "as applied" is "to prevent
its future application in a similar context, but not to
render it utterly inoperative." See Ada v. Guam Soc.
of Obstetricians & Gynecologists, 506 U.S. 1011,
1011 (1992) (Scalia, J., dissenting from denial of
examining both of these requirements, we conclude the
definition of a dangerous dog in section 18-196-particularly
how the phrase "vicious propensities" is
illustrated by paragraph (6)-violates the void-for-vagueness
doctrine as applied to Pinky and her owner.
start with the question of fair notice. Did the city's
drafters enable a person of ordinary understanding to realize
what the ordinance prohibits? See Williams v.
Osmundson, 281 N.W.2d 622, 625 (Iowa 1979)
("Literal exactitude or precision is not
necessary."). Helmers points out key terms are left
undefined in the ordinance-specifically the phrase
"vicious propensities" in the introductory
paragraph and the terms "disfiguring laceration"
and "corrective surgery" in paragraph (6). But code
provisions may give fair notice if their meaning can be
readily determined by relying on the generally accepted and
common meaning of the words, or by referring to the
dictionary or previous judicial constructions. State v.
Dalton, 674 N.W.2d 111, 122 (Iowa 2004).
a bird's-eye view of the dangerous-animal ordinance helps
place the terminology in its larger context. "Dangerous
animal" is defined in two ways: (1) "any animal,
including a dog, . . . that has bitten or
clawed a person while running at large and the
attack was unprovoked" or (2) "any animal that has
exhibited vicious propensities in present or past
conduct." Des Moines, Iowa, Code § 18-196. The
second definition is illustrated by seven
examples. The first and second examples involve
biting or clawing a person-either twice within twelve months
or once causing injuries to the person's face or head.
The third example describes an animal that could not be
controlled or restrained by the owner at the time of an
attack to prevent the occurrence. The fourth example of
vicious propensities is three or more attacks on domestic
animals or fowl within the lifetime of the attacking animal.
The fifth example is killing a domestic animal while the
attacking animal is off its owner's property. The sixth
example, the one at issue here, is biting another animal or
human that causes any of several non-trivial injuries,
described as "a fracture, muscle tear, disfiguring
lacerations or injury requiring corrective or cosmetic
surgery." The seventh example refers to animals that
have been removed from other jurisdictions for behavior that
would meet the dangerous-animal descriptions in this section.
initial matter, it is unclear from the wording of the
introductory paragraph's second definition of dangerous
animal whether the exhibition of "vicious
propensities" is satisfied by proof that an animal has
engaged in any of the six listed examples of conduct or
whether engaging in the listed conduct is suggestive, yet not
determinative of "vicious propensities." It is also
unclear whether the examples lead to an irrebuttable
presumption of "vicious propensities" or if an
owner may overcome the inference of viciousness by presenting
evidence of the pet's prior gentle character or
extenuating circumstances. These foundational ambiguities
inhibit the ordinance from giving fair notice to pet owners
as to what animal behavior will result in a declaration of
absence of a straightforward definition of "vicious
propensities" in the ordinance, we may look to
dictionaries or prior judicial renderings. At its core, the
word "vicious" means "having the nature of
vice." Vicious, The American Heritage College
Dictionary (3d ed. 1997). "Vice" in turn may be
defined as "an undesirable habit in a domestic
animal." Vice, The American Heritage College
Dictionary. As applied to animals, "vicious" means
"marked by an aggressive disposition; savage."
Vicious, The American Heritage College Dictionary.
"Propensities" are defined as "innate
inclinations or tendencies." Propensities, The
American Heritage College Dictionary. Accordingly, a person
checking a ...