American Dog Owners Ass'n, Inc. v. City of Lynn

• Decision Date: 09 February 1989
• Citation: 533 N.E.2d 642,404 Mass. 73
• Parties: AMERICAN DOG OWNERS ASSOCIATION, INC., et al. 1 v. CITY OF LYNN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 642

533 N.E.2d 642

404 Mass. 73

AMERICAN DOG OWNERS ASSOCIATION, INC., et al. ¹ v. CITY OF LYNN.

Supreme Judicial Court of Massachusetts Essex.

Argued Oct. 4, 1988.

Decided Feb. 9, 1989.

Patrea L. Pabst, Georgia (Ina Resnikoff with her), for plaintiffs.

Charles M. Burnim (Michael J. Barry, Asst. City Sol., with him), for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

This is an appeal by American Dog Owners Association (Dog Owners) from a judgment upholding two of three city of Lynn ordinances which restrict ownership of certain dogs within the city limits. Dog Owners commenced this action in July, 1986, ² seeking damages as well as injunctive and declaratory relief pursuant to Mass.R.Civ.P. 65, 365 Mass. 832 (1974), and G.L. c. 231A, §§ 1 and 2 (1986 ed.). Dog Owners challenged, under the Massachusetts Declaration of Rights and United States Constitution, the constitutionality of the ordinances which address ownership and control of certain dogs and impose fines on owners (and potential banishment of dogs) for violation of the ordinances. ³ After a jury-waived trial, the Superior Court judge issued findings of fact, rulings of law, and an order for judgment, which were challenged both by Dog Owners and by Lynn through various motions and requests for further findings and rulings or clarification. It is from the final judgment, modifying findings and rulings with respect to the first two ordinances and declaring the third ordinance void, that Dog Owners appealed; we transferred the case here on our own motion.

The first of the three ordinances was adopted July 9, 1985, and purported to amend an existing ordinance requiring dogs within the city to be restrained. This "amendment" applied to "American Staffordshire Terrier[s], a/k/a American Pit Bull Terrier[s] or Bull Terrier[s]," and required the owner or person having control of such dogs to have the dog muzzled when off the owner's premises. The ordinance imposed a maximum fine of $300 for each violation, ⁴ and expressly provided that any existing ordinances or parts of ordinances inconsistent with its terms were repealed.

The second ordinance applied to the "ownership of the breed of dogs known as American Staffordshire, Staffordshire Pit Bull Terrier or Bull Terrier," and was adopted June 10, 1986. This ordinance immediately banned the sale of the listed dogs, "hereinafter referred to as 'Pit Bulls,' " as well as any "new registrations" of "Pit Bulls." ⁵ In addition, the ordinance imposed a "total ban" of "Pit Bulls" from anywhere in Lynn except the dog owner's property, and required that the dogs be secured while on the owner's property so as to be unable to "gain access to public areas." The second ordinance imposed $500 fines for allowing a "Pit Bull" off the owner's property or failing to register a "Pit Bull," and further provided that such dogs would be "forever banned from the limits of the City of Lynn." Like the first ordinance, the second ordinance by its terms repealed any inconsistent existing ordinances or parts of ordinances.

The third ordinance was adopted on September 23, 1986, as an amendment to the second ordinance, apparently replacing the second in its entirety with the new provisions. It "defined" a "Pit Bull" as "American Staffordshire, Staffordshire Pit Bull Terrier, Bull Terrier or any mixture thereof," and imposed fifty dollar fines for sales of "Pit Bulls" within city limits. For ownership of an unregistered "Pit Bull" or a "Pit Bull" found off property "owned or controlled" by the owner of the dog, the ordinance imposed fifty dollar fines and banishment of the dog. The third ordinance allowed transportation of a "Pit Bull," muzzled and leashed, for medical or veterinary care, and defined "restraint" of the "Pit Bull" while on the owner's property as having the dog enclosed or secured by a chain or leash at least eight feet long. In addition to providing for notice and hearing procedures pursuant to G.L. c. 140, § 157, the third ordinance also provided that "[i]n all cases, a court of competent jurisdiction will make the determination" whether an unregistered or unrestrained dog believed to come within the ordinance, is in fact one of the named breeds or "any mixture thereof." The third ordinance also expressly repealed previous inconsistent ordinances or parts of ordinances.

After trial, the judge found that there is no scientific means, by blood, enzyme, or otherwise, to determine whether a dog belongs to a particular breed, regardless of whether "breed" is used in a formal sense or not. He also found that the dog officers of the city of Lynn used "conflicting[,] subjective standards" to determine what dogs should be defined as "Pit Bulls" under the ordinances. These findings were supported by the testimony of two Lynn dog officers, neither of whom had any training in breed identification and both of whom acknowledged that they necessarily used subjective standards to decide whether a particular dog was one of the types covered by the ordinance. ⁶ Likewise, the other experts who testified could not provide specific objective criteria for identifying dog breeds.

While all three of the ordinances are challenged on appeal, we must make a threshold determination as to which of the three ordinances, if any, is properly before us. The first ordinance, which allows the subject dogs off the owner's premises as long as they are muzzled, is clearly inconsistent with the second ordinance, which bans the dogs from anywhere within the city limits except the owner's property. The first ordinance, therefore, was expressly repealed upon adoption of the second ordinance. The third ordinance by its terms amended the second ordinance by replacing it in its entirety with the new provisions. In addition, as the third ordinance was intended to treat the subject of "Pit Bulls" comprehensively, the existing ordinances on the subject were impliedly repealed. Sullivan v. Worcester, 346 Mass. 570, 573, 194 N.E.2d 629 (1963). ⁷

Not only was the third ordinance declared void for vagueness by the Superior Court judge, but its provisions were themselves impliedly repealed by passage of a fourth "Pit Bull" ordinance on June 30, 1987. ⁸ Once the third ordinance became inoperable, because it was void for unconstitutional vagueness, the earlier ordinances were not revived. See Commonwealth v. Gagnon, 387 Mass. 768, 769-770, 443 N.E.2d 407 (1982), cert. denied, 461 U.S. 921, 103 S.Ct. 2077, 77 L.Ed.2d 292, and 464 U.S. 815, 104 S.Ct. 70, 78 L.Ed.2d 84 (1983). We are confronted, therefore, with a series of three ordinances which, because of legislative action or operation of law, or both, are no longer in effect. Technically, therefore, the case is moot. In order to conserve judicial resources and to guide future conduct of the parties, we make some observations concerning the fourth ordinance. See School Comm. of Boston v. Board of Educ., 352 Mass. 693, 697, 227 N.E.2d 729 (1967), appeal dismissed, 389 U.S. 572, 88 S.Ct. 692, 19 L.Ed.2d 778 (1968). Cf. Reilly v. School Comm. of Boston, 362 Mass. 689, 694-695, 290 N.E.2d 516 (1972). See also Massachusetts Outdoor Advertising Council v. Outdoor Advertising Bd., 9 Mass.App.Ct. 775, 777, 405 N.E.2d 151 (1980). Because the case has become moot and since the June 30, 1987, ordinance was not before the judge, his findings and rulings cannot be used to determine its validity. Certain principles arise from the record before us, however, which do apply to the fourth ordinance or which may apply if the factual predicates remain unchanged. Despite argument that a facial attack on the ordinance is not available because, by statute, the proceedings governing a complaint for violation of a municipality's ordinance or by-law concerning licensing and restraining of dogs "shall not be deemed criminal," G.L. c. 140, § 173A (1986 ed.), we note that, simply because a law's provisions are "civil" and not "criminal," does not "save them from scrutiny under the vagueness doctrine." Custody of a Minor (No. 2), 378 Mass. 712, 717, 393 N.E.2d 379 (1979). Moreover, since the ordinance imposes a penalty on offenders, involves forfeiture of property (banishment of the dog), and seeks to protect the public against injury, it is clearly penal in nature. See Collatos v. Boston Retirement Bd., 396 Mass. 684, 686, 488 N.E.2d 401 (1986), and cases cited. The ordinance must therefore define the activity proscribed "with sufficient definiteness that ordinary people can understand what conduct is prohibited." Commonwealth v. Williams, 395 Mass. 302, 304, 479 N.E.2d 687 (1985), quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). This principle applies alike to statutes and municipal ordinances. Commonwealth v. Williams, supra, citing Commonwealth v. Carpenter, 325 Mass. 519, 521, 91 N.E.2d 666 (1950). Vague laws violate due process because "laws that do not limit the exercise of discretion by officials engender the possibility of arbitrary and discriminatory enforcement." Caswell v. Licensing Comm'n for Brockton, 387 Mass. 864, 873, 444 N.E.2d 922 (1983).

The judge found that there is no scientific means, by blood, enzyme, or otherwise, to determine if a dog is a particular breed or any mixture thereof; that the dog officers of the city of Lynn used conflicting, subjective standards for ascertaining what animals are to be defined as "Pit Bulls" under all of the ordinances in question; and that the ordinances failed to provide law enforcement officials with ascertainable standards by which to enforce the ordinance. ⁹ Based on these...