Haggblom v. City of Dillingham

191 P.3d 991, 2008 Alas. LEXIS 124, 2008 WL 3982076

• Court: Alaska Supreme Court
• Decided: August 29, 2008
• Docket: S-12358
• Status: Published

Opinions

OPINION

CARPENETI, Justice.

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 city’s 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 Muñeca with her to work. She confined Muñeca in her office behind a child gate. While Haggblom was working at her desk, her co-worker Sharron Simpson approached Haggblom’s office and reached down to open the child’s gate. Muñeca bit Simpson on the hand. Neither Haggblom nor Simpson heard Muñeca 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 Muñeca until the dog bit her.

Haggblom reported the bite to the Dilling-ham 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 Muñeca 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 Muñeca “vicious” under the dog bite ordinance. Two days later the city sent Hagg-blom 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 Muñeca must either be eu-thanized 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 Haggblom’s 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 municipality’s 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 superi- or court’s 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 Hagg-blom’s 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.

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 government’s 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 CSO’s viciousness determination before the city manager or his desig-nee.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 Hagg-blom that she had a right to challenge the viciousness determination in superior court.

The first element considered under the Mathews v. Eld/ridge test is the importance of the private interest affected by the government action.¹³ Here, Haggblom’s 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 them 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 Hagg-blom requests at the administrative level, including an impartial decision maker, were available to her in the de novo trial in superi- or 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 ordinance’s 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 dog’s perspective.

Haggblom’s arguments are unpersuasive. Whatever the outside bounds of “without provocation” might be, this case falls squarely within the phrase’s plain meaning.²¹ Both Haggblom and the bite victim agreed that the victim merely walked to Haggblom’s door and put her hand on the child’s gate. No reasonable person would conclude that the victim provoked Muñeca. 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 ordi-nanee 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 superi- or court’s 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 “we’ve 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. Haggblom’s 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 Haggblom’s 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, “isn’t it true that you’re 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 one’s 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 Muneca’s actions fall within the phrase’s 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 Muñeca from within city limits rather than have her eu-thanized, 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 Mune-ca’s 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 Muñeca 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 uneonstitutionality.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, Hagg-blom 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 CM 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 court’s 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 eases.”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 court’s “Order On Preliminary Injunction,” in which it held that the ordinance was constitutional and the city’s decision was supported by substantial evidence.

The city argues that notwithstanding the general requirement of notice, “the court’s 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 court’s 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 Muñeca.

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 court’s 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 Hagg-blom 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 Haggblom’s due process rights, the city did not violate Haggblom’s 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 court’s judgment in all respects.

BRYNER, Justice, not participating.

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, Dep't 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, 96 S.Ct. 893, 47 L.Ed.2d 18 (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 Dep’t 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, 96 S.Ct. 893.

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 . Haggblom's 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 statute's proscriptions.'" (quoting Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 37 L.Ed.2d 830 (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, 101 S. Ct. 1830, 68 L.Ed.2d 175 (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

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.”