IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
MELISSA C. WILLIAMS, individually and ) No. 80961-0-I ex rel. the Taxpayers of the City of Seattle, ) ) DIVISION ONE Appellant, ) ) UNPUBLISHED OPINION v. ) ) CITY OF SEATTLE, ) ) Respondent. )
ANDRUS, A.C.J. — Melissa Williams appeals the summary judgment
dismissal of her challenge to the City of Seattle’s (City) ordinance regulating
dangerous animals. She contends the “dangerous animal” ordinance is
unconstitutional because it conflicts with the state “dangerous dog” statute, chapter
16.08 RCW. We conclude that the laws do not unconstitutionally conflict and
affirm.
FACTS
In March 2018, the Seattle Animal Shelter (SAS) received a complaint
regarding Williams’s dog, Charlie. Kamiya Hayward reported to SAS Officer Caryn
Cantu that while walking her dog and attempting to enter her apartment complex, No. 80961-0-I/2
Charlie ran across the street, off leash, and attempted to bite Hayward’s dog.
When Hayward picked up her dog to protect it, Charlie bit Hayward.
The City cited Williams for violations of SMC 9.25.084.G(1), 1 for allowing
Charlie to bite Hayward, and SMC 9.25.084.A, 2 for permitting Charlie to be at large,
unleashed. 3 Williams contested these citations but the municipal court found that
she had committed the violations. Although Williams initially appealed the
municipal court findings to King County Superior Court, No. 19-2-22518-1, she
subsequently abandoned her appeal.
In May 2018, SAS received another complaint about Charlie. Autumn
Chandler reported that on May 3, while walking her dog, Charlie ran across the
street, barking, and “attacked” and bit her dog. The City again cited Williams for
violations of SMC 9.25.084.G(1) for allowing Charlie to bite Chandler’s dog and
SMC 9.25.084.A for again allowing Charlie to be off leash. Williams did not contest
these citations and opted to pay the fine. In the proceedings below, Williams
admitted that as a result of these proceedings, Charlie meets the definition of
“dangerous animal” under SMC 9.25.020.G. 4
1 SMC 9.25.084.G(1) makes it unlawful for an owner to permit any animal “when unprovoked on public or private property to: (1) Bite a human being causing less than severe injury as defined in 9.25.023E of the Seattle Municipal Code or bite a domestic animal; . . . ” SMC 9.25.023(E) defines “severe injury” as any physical injury that results in broken bones, disfiguring lacerations, avulsions, cuts or puncture wounds requiring medical attention, or permanent nerve damage. 2 SMC 9.25.084(A) makes it unlawful for an owner to permit any animal to be at large or to trespass on the property of another. 3 Officer Cantu also issued a citation for violation of SMC 9.25.049 for Williams’s failure to vaccinate Charlie against rabies, but the municipal court dismissed this citation. 4 SMC 9.25.020.G defines “dangerous animal” as including one whose owner is found to have committed two or more violations of SMC 9.25.084.G.
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Pursuant to SMC 9.25.035.A, the Division Director of SAS, Ann Graves, 5
began an investigation into whether she should declare Charlie to be dangerous
under SMC 9.25.020.G. SMC 9.25.035.B provides that before the director may
declare any animal to be dangerous, the director must notify the owner in writing
of the reasons why the animal is believed to be dangerous, and provide the owner
with the opportunity to meet the director to present information as to why the animal
should not be declared dangerous. On November 1, 2018, Director Graves sent
Williams a “Notice of Preliminary Determination of Dangerous Animal Right to
Meeting” letter (NPDD), notifying her that the City had preliminarily determined that
Charlie was a dangerous animal. Graves explained:
I am investigating to determine whether your dog is a dangerous animal under Section SMC 9.25.020(G). SAS has received multiple complaints of Charlie permitted to run at large and attack other dogs. Based off the two separate incidents resulting in citations for Charlie biting a human being on one incident and a domestic animal on another incident, I have made a preliminary determination that your dog is a dangerous animal. I will make my final determination after the expiration of twenty (20) days following the services of this notice upon you. After that time, I will issue my final determination as to whether your dog, Charlie, is a dangerous animal or not.
Graves offered to meet with Williams to allow her to provide information as to why
Charlie should not be declared dangerous.
On January 3, 2019, Williams and her attorney met with Graves, Don Baxter
from SAS, and counsel from the Seattle City Attorney’s Office. At this meeting,
Williams “provided extensive information” for Graves to consider. Afterwards, SAS
decided to offer Williams a settlement instead of proceeding directly to declaring
5 Director Graves was acting as an authorized representative of the Director of the Department of Finance and Administrative Services.
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Charlie to be dangerous. Negotiations lasted until June 2019, when Williams filed
a CRLJ 60 motion in municipal court to vacate the findings on the underlying
citations. The municipal court denied this motion.
In September 2019, Williams filed this lawsuit, seeking a declaration under
the Uniform Declaratory Judgment Act (UDJA) that the City’s “dangerous dog”
ordinance was unconstitutional under article XI, section 11 of the Washington State
Constitution because definitions within the ordinance conflict with RCW
16.08.070(2) and (3).
The City has taken no further action relating to Williams’s dog while this
litigation has been pending. The City has not issued a final declaration that Charlie
is dangerous, nor has it ordered Charlie to be removed from the city or destroyed.
Both Williams and the City filed motions for summary judgment. The trial
court granted the City’s motion and dismissed Williams’s complaint. The trial court
concluded the Supreme Court’s holding in Rabon v. City of Seattle, 135 Wn.2d
278, 957 P.2d 621 (1998), was dispositive, there is no evidence of a legislative
intent to preempt the field of dangerous animal regulation, and there is no
constitutional conflict between Seattle’s “dangerous animal” ordinance and the
state “dangerous dog” statute. Williams appeals.
ANALYSIS
A. Justiciability
The City argues the trial court appropriately dismissed Williams’s lawsuit
because she failed to establish the existence of a justiciable controversy.
Specifically, the City contends Williams’s claim is not ripe and she lacks standing
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to raise her constitutional challenge because the City has not determined the dog
is in fact dangerous or ordered Williams to remove the dog from the city limits or
otherwise dispose of it. Because Williams admitted below that Charlie meets the
ordinance’s definition of “dangerous animal,” which means the City could declare
the dog dangerous at any time, and Williams challenges its authority to do so, we
conclude Williams’s claim is ripe and she has direct standing to bring this pre-
enforcement challenge to the City ordinance, despite the lack of a final
dangerousness declaration or removal order.
Williams seeks relief under the UDJA, which provides that a person “whose
rights, status or other legal relations are affected by a statute, municipal ordinance,
contract or franchise, may have determined any question of construction or validity
arising under the instrument, statute, municipal ordinance, contract or franchise
and obtain a declaration of rights, status or other legal relations thereunder.” RCW
7.24.020.
The UDJA requires a justiciable controversy, meaning (1) one presenting
an actual, present, and existing dispute, or the mature seeds of one, as
distinguished from a possible, dormant, hypothetical, speculative, or moot
disagreement, (2) between parties having genuine and opposing interests, (3)
involving interests that are direct and substantial, rather than potential, theoretical,
abstract, or academic, and (4) of which a judicial determination will be final and
conclusive. Diversified Indust. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d
137 (1973). All four justiciability factors must be present “to ensure that the court
will be rendering a final judgment on an actual dispute between opposing parties
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with a genuine stake in the resolution.” To-Ro Trade Shows v. Collins, 144 Wn.2d
403, 411, 27 P.3d 1149 (2001). The doctrines of ripeness and standing are
encompassed in the first and third prongs, respectively. Alim v. City of Seattle, 14
Wn. App. 2d 838, 847, 474 P.3d 589 (2020). Ripeness and standing are questions
of law we review de novo. Wash. State Commc'n Access Project v. Regal
Cinemas, Inc., 173 Wn. App. 174, 209, 293 P.3d 413 (2013); In re Estate of Becker,
177 Wn.2d 242, 246, 298 P.3d 720 (2013).
In determining whether a claim is ripe for review, this court considers if the
issues raised are primarily legal and do not require further factual development,
and if the challenged municipal action is final. Jafar v. Webb, 177 Wn.2d 520, 525,
303 P.3d 1042 (2013). We also consider the hardship to the parties of withholding
court consideration. Id. Here, the parties have an actual, present, and existing
dispute—whether the City can declare Charlie to be a dangerous animal. The
issue before the court—whether certain provisions of the City’s Animal Control
Code unconstitutionally conflict with state law—is entirely a legal question that
requires no further factual development of the record.
The City argues Williams’s claim is not ripe because it has not made a final
decision to declare the dog dangerous and whether it will do so in the future is
purely hypothetical. But the City has already preliminarily determined that the dog
is dangerous based on the two undisputed violations of SMC 9.25.084.G(1).
Williams conceded below her dog fits the definition of “dangerous animal” under
the city code. And the Director has conducted the mandatory pre-declaration
meeting with Williams as required by SMC 9.25.035.B. Thus, while the Director
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may have the discretion to withhold a final decision indefinitely, there is no legal
impediment to the City declaring the dog dangerous at any time. These are, at a
minimum, the “mature seeds” of an actual dispute between the parties.
Moreover, Williams contends the City lacks any authority under article XI,
section 11 of the Washington State Constitution to promulgate an ordinance that
deems a dog “dangerous” in the absence of severe injury as is required under
RCW 16.08.070(2). If her contention were correct, even the issuance of the NPDD
under SMC 9.25.035.B would be unlawful. The “final” act is not the City’s decision
to declare Williams’s dog dangerous but the enactment of an ordinance that
appears broader in scope than state statute. The claim before us is ripe.
The City next argues Williams does not have direct standing because she
has not suffered any actual or imminent injury from the ordinance provisions she
challenges. In a pre-enforcement challenge to a municipal ordinance, a party must
demonstrate that (1) the interest they seek to protect is within the zone of interests
regulated by the ordinance; and (2) they have suffered or will suffer an injury in
fact. Alim, 14 Wn. App. 2d at 852.
Williams’s interest in keeping her dog despite his behavior is clearly within
the zone of interests regulated by the ordinance. The City does not contest this.
And Williams will suffer an injury in fact if the City decides to declare her dog
dangerous, which it could do at any point. If the City takes this step, Williams will
be obligated by law to comply with an order to remove the dog from the City or
face the destruction of her pet. This outcome presents a sufficient risk of injury to
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confer direct standing. 6 We therefore turn to the merits of her challenge to the
constitutionality of the City’s dangerous animal ordinance.
B. Constitutionality
Williams argues that portions of the City’s dangerous animal ordinance are
unconstitutional because they directly and irreconcilably conflict with state statute.
We reject this argument because the legislature has granted exclusive jurisdiction
to local governments to regulate “potentially dangerous dogs” and the City’s
ordinance is consistent with the exercise of that authority.
The Washington constitution grants every local government the power to
“make and enforce within its limits all such local police, sanitary and other
regulations as are not in conflict with general laws.” WASH. CONST. art. XI, § 11.
An ordinance is valid “unless: (1) the Ordinance conflicts with some general law;
(2) the Ordinance is not a reasonable exercise of the [local government's] police
power; or (3) the subject matter of the Ordinance is not local.” Cannabis Action
Coal. v. City of Kent, 183 Wn.2d 219, 225-26, 351 P.3d 151 (2015) (quoting
Weden v. San Juan County, 135 Wn.2d 678, 692-93, 958 P.2d 273 (1998)). A
heavy burden rests upon the party challenging the ordinance's constitutionality and
there is a strong presumption in favor of constitutionality. Cannabis Action Coal.,
183 Wn.2d at 226. The validity of an ordinance under article XI, section 11 is a
question of law subject to de novo review. Id.
Williams contends SMC 9.25.020.G, the definition of “dangerous animal;”
SMC 9.25.023.E, the definition of “severe injury;” and SMC 9.25.024.A, the
6 Because we conclude Williams has direct standing to bring this UDJA challenge, we need not reach her argument that she also has taxpayer standing.
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definition of “unprovoked” conflict with state law because they sweep more animals
into their purview than permitted under state law. Williams asks this court to
conclude that state statutory definitions of “dangerous dogs” preempt any
conflicting local ordinances.
Conflict preemption occurs when an ordinance permits what the state laws
forbid or forbids what the state laws permit. Lawson v. City of Pasco, 168 Wn.2d
675, 682, 230 P.3d 1038 (2010). But where the statute and ordinance may be
read in harmony, this court will not find conflict. Id. In this case, the City’s
dangerous animal ordinance does not conflict with state law because RCW
16.08.090(2) grants exclusive jurisdiction to local governments to regulate dogs
such as Charlie.
State statute identifies two categories of dogs—“potentially dangerous
dogs” subject to exclusive local regulation, and “dangerous dogs” subject to
concurrent state and local regulation. A “potentially dangerous dog” is defined as:
any dog that when unprovoked: (a) Inflicts bites on a human or a domestic animal either on public or private property, or (b) chases or approaches a person upon the streets, sidewalks, or any public grounds in a menacing fashion or apparent attitude of attack, or any dog with a known propensity, tendency, or disposition to attack unprovoked, to cause injury, or to cause injury or otherwise to threaten the safety of humans or domestic animals.
RCW 16.08.070(1). Under RCW 16.08.090(2), “[p]otentially dangerous dogs shall
be regulated only by local, municipal, and county ordinances. Nothing in this
section limits restrictions local jurisdictions may place on owners of potentially
dangerous dogs.”
A “dangerous dog” under RCW 16.08.070(2) is:
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any dog that (a) inflicts severe injury on a human being without provocation on public or private property, (b) kills a domestic animal without provocation while the dog is off the owner’s property, or (c) has been previously found to be potentially dangerous because of injury inflicted on a human, the owner having received notice of such and the dog again aggressively bites, attacks, or endangers the safety of humans.
It is unlawful for an owner to have a dangerous dog in the state without a certificate
of registration, RCW 16.08.080(5), or to permit the dog to be outside the proper
enclosure unless the dog is muzzled and under physical restraint of a responsible
person. RCW 16.08.090(1).
In Rabon, an owner whose dogs had been ordered destroyed challenged
Seattle’s “vicious dog” ordinance, 7 arguing it irreconcilably conflicted with state
statute and was unconstitutional under article XI, section 11. Id. He argued the
state statute permitted the registration of dangerous dogs, whereas the City
required vicious dogs to be destroyed. Id. at 284. He also argued that the City’s
ordinance treated all dog bites alike regardless of their severity, whereas under
state law, only dogs whose bites caused “severe injury” could be declared
“dangerous.” Id. at 293.
The Supreme Court rejected both arguments. It held that under RCW
16.08.090(2), local governments have sole jurisdiction over “potentially dangerous
dogs” and local and state governments have concurrent jurisdiction over
“dangerous dogs.” Id. at 290-291. As for the claimed conflicts between the two
regulatory schemes, the Supreme Court held that the City could constitutionally
7 Under former SMC 9.25.083 (1985), “vicious animal” was defined to include any animal “which bites, claws, or otherwise harms a human being or another animal, or which demonstrates menacing behavior toward human beings or domestic animals, but does not include an animal that bites, attacks, or menaces a person or another animal that has tormented or hurt it.”
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impose greater restrictions than state law because both were prohibitory in nature.
Id. at 293. And while a local ordinance could not permit what state law explicitly
prohibited, nothing prevented the City from “provid[ing] further protection from
dangerous or vicious animals.” Id. The definitional differences between state
statute and city code did not render the ordinance invalid under article XI, section
11 because the ordinance did not permit an owner to keep a “dangerous” dog
without complying with state law. Id.
Rabon governs here. The City’s “dangerous animal” ordinance does not
permit what state law forbids and does not prohibit what state law permits. Under
SMC 9.25.083.A, it is “unlawful to own a dangerous animal . . . with knowledge
that the animal is dangerous, or with reckless disregard of the fact that the animal
is dangerous.” The City includes in its definition of a “dangerous animal,” any dog
whose owner has committed two or more violations of SMC 9.25.084.G. SMC
9.25.020.G(2). SMC 9.25.084.G(1) makes it unlawful for a dog owner to permit
their animal to bite a human or a domestic animal. If an owner permits a dog to
bite a human or domestic animal, the City may order the dog removed from the
city limits or order the dog destroyed.
These restrictions are not inconsistent with state law. State law does not
permit owners to let their dogs bite humans or domestic animals. Indeed, a dog
that bites a human or another dog meets the state definition of a “potentially
dangerous dog,” the area left exclusively to local regulation. RCW 16.08.070 does
not prevent the City from determining that a “potentially dangerous dog” under
state law is a “dangerous animal” under city ordinance. As Rabon recognized,
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both the state statute and the ordinance are prohibitive in nature and the local
ordinance can be more restrictive and provide more protection than state law.
Williams contends Rabon is distinguishable because that case addressed
the City’s ability to regulate dogs that fall within the state law’s definition of
“dangerous.” According to Williams, “[t]he City is obviously free to impose more
prohibitive restrictions on dogs statutorily defined as dangerous” but the City may
not “expand the definitions” created by state law, thus altering who falls within the
regulatory ambit. But this argument ignores the fact that the legislature explicitly
authorized local jurisdictions to regulate “potentially dangerous dogs” in any
manner they deemed appropriate. While a city obviously cannot modify state law,
the legislature is free to allow a city to impose the same restrictions on owners of
“potentially dangerous dogs” as the state imposes on owners of “dangerous dogs.”
We conclude the state “dangerous dog” law and the City’s “dangerous
animal” ordinance do not conflict and the former does not preempt the latter.
We affirm.
WE CONCUR:
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