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Helmers v. City of Des Moines

Court of Appeals of Iowa

April 4, 2018

DIANNA HELMERS, Plaintiff-Appellant,
v.
CITY OF DES MOINES, Defendant-Appellee.

          Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.

         A dog owner appeals the denial of her writ of certiorari.

          Jamie L. Hunter of Dickey & Campbell Law Firm, P.L.C., Des Moines, for appellant.

          John O. Haraldson, Assistant City Attorney, for appellee.

          Heard by Danilson, C.J., and Vaitheswaran, Doyle, Tabor, and McDonald, JJ.

          TABOR, JUDGE.

         This 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 declaration.

         I. Facts and Prior Proceedings

         In 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[1] 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.

         Meanwhile, 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.

         Elizabeth 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.

         No witness saw which animal was the initial aggressor in the altercation.

         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.[2]

         The ALJ decided Pinky's seizure was procedurally proper and found substantial evidence supported the dangerous animal declaration.[3] 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 ordinance.

         As 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).

         Helmers 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.[4] 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.

         II. Scope and Standards of Review

         Our 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.

         III. Analysis

         The 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 animal.
(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 section.

Des Moines, Iowa, Code § 18-196.

         In this 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.

         Helmers 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, § 9.

         Due process requires legislation imposing a sanction[5] 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 certiorari).

         After 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.

         We 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).

         Taking 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[6] 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.[7] 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.

         As an 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 dangerousness.

         In the 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 ...


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