Dog Federation of Wisconsin, Inc. v. City of South Milwaukee

504 N.W.2d 375, 178 Wis. 2d 353, 1993 Wisc. App. LEXIS 899
CourtCourt of Appeals of Wisconsin
DecidedJuly 20, 1993
DocketNo. 92-2131
StatusPublished
Cited by16 cases

This text of 504 N.W.2d 375 (Dog Federation of Wisconsin, Inc. v. City of South Milwaukee) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dog Federation of Wisconsin, Inc. v. City of South Milwaukee, 504 N.W.2d 375, 178 Wis. 2d 353, 1993 Wisc. App. LEXIS 899 (Wis. Ct. App. 1993).

Opinion

FINE, J.

This is an appeal by the Dog Federation of Wisconsin, Inc., and four persons who claim to own dogs that may be subject to regulation by a City of South Milwaukee ordinance that imposes restrictions on the ownership and keeping of "pit bulls."1 The Fed-[358]*358©ration and the individual appellants claim that the "pit bull" aspects of the ordinance are facially invalid for the following reasons: 1) the definition of "pit bull" is impermissibly vague; 2) the ordinance is overbroad; and 3) the ordinance violates their right to equal protection of the law. We affirm.

The parties filed cross motions for summary judgment in the trial court.2 They thus, in effect, stipulated that there were no issues for trial and that the validity vel non of the ordinance could be decided on the record [359]*359of their submissions. See Grotelueschen v. American Family Ins., 171 Wis. 2d 437, 446-447, 492 N.W.2d 131, 134 (1992). The trial court upheld the ordinance. Our review is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987).

The focus of the claims by the Federation and the individual appellants is on the ordinance's definition of "pitbull":

"Pit Bull" as used in this ordinance means: Any pit bull terrier, which shall be defined as any American Pit Bull Terrier or Staffordshire Bull Terrier or American Staffordshire Terrier breed of dog, or any mixed breed of dog which contains as an element of its breeding the breed of American Pit Bull Terrier or Staffordshire Bull Terrier or American Stafford-shire Terrier as to be identifiable as partially of the breed of American Pit Bull Terrier or Staffordshire Bull Terrier or American Staffordshire Terrier.

Ordinances, like statutes, are presumed to be constitutional and will be upheld unless shown to be unconstitutional beyond a reasonable doubt. Eastman v. City of Madison, 117 Wis. 2d 106, 111, 342 N.W.2d 764, 767 (Ct. App. 1983). We address the claims of the Federation and the individual appellants in sequence.

1. Vagueness.

A law regulating conduct must give adequate notice of what is prohibited, so as not to delegate "basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis." Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). Thus, "a statute which either forbids or requires the doing of [360]*360an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). Although the enactment must have "a reasonable degree of clarity," Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984), exacting precision is not required, Grayned, 408 U.S. at 110, unless the enactment infringes rights that are specifically protected by the constitution, such as those of free speech and association protected by the First Amendment, Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). In short, if a statute or ordinance does not directly affect constitutionally-protected interests, we may not hold it facially-invalid for vagueness even though "doubts as to the applicability of [the challenged] language in marginal fact situations may be conceived." See United States v. Powell, 423 U.S. 87, 93 (1975). With these principles in mind, we turn to the City of South Milwaukee ordinance.

The Federation and the individual appellants contend that an ordinary person would not be able to discern whether a dog is a "pit bull" as defined by the ordinance. They point to the City of South Milwaukee's concession that such a determination would require expert testimony at trial, and that no "current city employee" would be able to give that testimony.

The core of the appellants' factual submissions on their void-for-vagueness argument is an affidavit by Robert M. Brown, D.M.V., the chief veterinarian at the Jackson Area Pet Hospital in Jackson, Wisconsin. Dr. Brown has written various books on dog-ownership, is a columnist for two dog periodicals, and is a dog-show judge certified by the American Kennel Club. Distilled [361]*361judge certified by the American Kennel Club. Distilled to its essential points, the argument advanced by Dr. Brown's affidavit is that:

1) the breed standards referenced by the ordinance are that of the "ideal" dog of that breed;
2) non-experts would be unable to accurately determine whether a particular dog was the "pit bull" defined in the ordinance;
3) experts "would have difficulty determining whether a particular dog was 'identifiable' as being 'partially of one of the breeds named" in the ordinance "solely upon the basis of a visual inspection" (emphasis added);
4) it is "extremely difficult" for him to understand and apply the ordinance's phrase "any mixed breed of dog which contains as an element of its breeding the breed of American Pit Bull Terrier or Staffordshire Bull Terrier or American Staffordshire Terrier" (emphasis added);
5) there is no "genetic method" to determine a dog's breed; and
6) the "only possible way in which a dog might be 'identifiable' as falling within the breeds specified in the South Milwaukee Ordinance is by examining a breeding history that is presented by the dog's owner as part of registering the dog as a purebred animal," and that "the vast majority of dogs" are not registered and lack sufficient breeding documentation, so that the only way oí "truly determining the breed of dog" would be to breed the dog for several generations and examine the offspring. (Emphasis added.)

[362]*362The ordinance's definition of "pit bull" makes specific reference to breeds that are recognized by both the American Kennel Club and the United Kennel Club. A "breed" is "a relatively homogenous groups of animals within a species, developed and maintained by man." American Kennel Club, Dogs 5 (1991). According to the record in this case, the American Kennel Club has established standards for the American Staffordshire Terrier and the Staffordshire Bull Terrier, while the United Kennel Club has established standards for the Staffordshire Bull Terrier and the American Pit Bull Terrier. The American Staffordshire Terrier was accepted by the American Kennel Club for registration in 1935.3

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504 N.W.2d 375, 178 Wis. 2d 353, 1993 Wisc. App. LEXIS 899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dog-federation-of-wisconsin-inc-v-city-of-south-milwaukee-wisctapp-1993.