City of Belfield v. Kilkenny

Decision Date22 March 2007
Docket NumberNo. 20060176.,20060176.
Citation729 N.W.2d 120,2007 ND 44
PartiesCITY OF BELFIELD, Plaintiff and Appellee, v. Frederick Eugene KILKENNY, Defendant and Appellant.
CourtNorth Dakota Supreme Court
729 N.W.2d 120
2007 ND 44
CITY OF BELFIELD, Plaintiff and Appellee,
v.
Frederick Eugene KILKENNY, Defendant and Appellant.
No. 20060176.
Supreme Court of North Dakota.
March 22, 2007.

[729 N.W.2d 122]

Robert A. Keogh, City Attorney, Keogh Law Office, Dickinson, N.D., for plaintiff and appellee.

N. Robert Pesall, Flandreau, S.D., for defendant and appellant.

SANDSTROM, Justice.


[¶ 1] Frederick Kilkenny appeals the district court judgment finding him guilty of violating a Belfield city ordinance that prohibits a nuisance in the form of excessive, continuous, or untimely dog barking. Concluding that the ordinance provides minimum guidelines for the reasonable police officer, judge, or jury charged with its enforcement and provides a reasonable person with adequate and fair warning of the prohibited conduct, we affirm.

I

[¶ 2] The municipal court found Kilkenny guilty, and he appealed to the district court. At the district court trial, a neighbor testified that he called the police to complain about Kilkenny's two dogs barking loudly enough to be heard inside his house "off and on all day," "continuous[ly]," and "after hours" one evening between 8 and 9 p.m. The investigating officer testified that he heard the dogs barking and looked for whatever might be causing the dogs to bark. The officer testified he found nothing awry, so he did not issue a citation at that time. Upon receiving another complaint by the same neighbor thirty minutes later, the officer testified, he returned to the residence, confirmed that the dogs were barking again, and issued a citation, leaving it in the screen door. The officer testified he knew Kilkenny was not at home but had hired Melissa Gjermundson to care for his dogs. The neighbor testified that another law enforcement officer had also investigated Kilkenny's dogs on a different occasion. According to the neighbor's testimony, that officer made Kilkenny keep the dogs locked in the house from 7 p.m. to 7 a.m., but told him the dogs could be outside in the fenced yard the rest of the time. Gjermundson testified she knew people had complained about the dogs in the past and a schedule had been established to prevent further complaints about barking. She testified that she failed to put the dogs inside by 7 p.m. because her work shift lasted until 9:00 that night. She testified a police officer notified her of the neighbor's complaint at 8:50 p.m. and she arrived in Belfield at 9:45 p.m. to put the dogs inside; however, she decided to take the dogs to her home because she "just didn't want to deal with it anymore."

[¶ 3] At a bench trial, the district court found Kilkenny guilty, imposed a $20 fine, and placed him on thirty days' probation. Kilkenny appealed.

[¶ 4] The municipal court had jurisdiction under N.D.C.C. § 40-18-01. The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06(4). This appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction

729 N.W.2d 123

under N.D. Const. art. VI, § 2, and N.D.C.C. § 29-28-06.

II

[¶ 5] Kilkenny argues that the city ordinance violates his right to substantive due process guaranteed by the Fourteenth Amendment to the United States Constitution and article I, section 12 of the North Dakota Constitution, because the ordinance is unconstitutionally vague on its face.

[¶ 6] Kilkenny was convicted of violating the following municipal ordinance:

11.0204 Nuisance — When: Excessive, continuous, or untimely barking, molesting passers by, chasing vehicles, habitually attacking other domestic animals, trespassing upon school grounds, or trespassing upon private property or damaging property by a dog or cat is hereby declared to be a nuisance. Further, any dog or cat without a valid license and collar is a nuisance.

Belfield, N.D., Rev.Code § 11.0204 (emphasis added). Under section 11.0201, Belfield Revised Code, dogs older than one month must be licensed "to be or remain in the City . . . ." Further, section 11.0202, Belfield Revised Code, requires "[a]ll dogs and cats kept in the City shall be registered as to sex, breed, name and address of the owner and name of dog or cat" and imposes a $2.50 license fee for male dogs and $5.00 fee for female dogs. "Any violation of the terms of this Chapter constitutes an infraction" punishable by "a fine not to exceed $100 or . . . imprisonment not exceeding thirty (30) days, or by both . . . ." Belfield Revised Code § 11.0301.

[¶ 7] Under the Fourteenth Amendment, no State may "deprive any person of life, liberty or property, without due process of law . . . ." U.S. Const. amend. XIV, § 1. Article I, section 12 of the North Dakota Constitution also provides: "No person shall . . . be deprived of life, liberty or property without due process of law." Although the words of the federal due process clause might suggest that it governs only the procedures by which a State may deprive persons of life, liberty, or property, it has been interpreted to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them . . . it serves to prevent governmental power from being used for purposes of oppression." Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 677, 88 L.Ed.2d 662 (1986) (internal quotations and citations omitted).

[¶ 8] The standard of review for a claimed violation of a constitutional right is de novo. State v. Campbell, 2006 ND 168, ¶ 6, 719 N.W.2d 374. "Generally, the rules of construction applicable to state statutes apply in the construction of municipal ordinances." Mini Mart, Inc. v. City of Minot, 347 N.W.2d 131, 141 (N.D. 1984). We construe statutes to avoid constitutional infirmities. Leet v. City of Minot, 2006 ND 191, ¶ 13, 721 N.W.2d 398. "`Any doubt must be resolved in favor of the constitutionality of the statute.'" State v. Tweed, 491 N.W.2d 412, 418 (N.D.1992) (quoting N.D. Council of Sch. Adm'rs v. Sinner, 458 N.W.2d 280, 285 (N.D.1990)).

[¶ 9] The United States Supreme Court has distinguished between two doctrines used to challenge laws claimed to be facially unconstitutional:

First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 612-615, 93 S.Ct. 2908, 37

729 N.W.2d 124

L.Ed.2d 830 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). Kilkenny's failure to prevent his dogs from barking excessively, continuously, or at the wrong time does not reach a substantial amount of constitutionally protected conduct. See Nicchia v. People of New York, 254 U.S. 228, 230, 41 S.Ct. 103, 65 L.Ed. 235 (1920) ("Property in dogs is of an imperfect or qualified nature and they may be subjected to peculiar and drastic police regulations by the state without depriving their owners of any federal right."); Village of Litchville v. Hanson, 19 N.D. 672, 676, 124 N.W. 1119, 1120 (1910) (owning dogs is a privilege subject to licensing and fees); but see, e.g., United States v. Carolene Products Co., 304 U.S. 144, 152-53 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) (the presumption of constitutionality is narrowed when a law impinges on the rights enumerated in the Bill of Rights, restricts participation in political processes, or discriminates against "discrete and insular minorities"). Because the ordinance at issue regulates citizens' control over their dogs and cats, we apply the test set forth in Kolender and its progeny.

[¶ 10] All laws must meet two requirements to survive a void-for-vagueness challenge: (1) the law must create minimum guidelines for the reasonable police officer, judge, or jury charged with enforcement of the statute; and (2) the law must provide a reasonable person with adequate and fair warning of the proscribed conduct. See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); accord Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); State v. Eldred, 1997 ND 112, ¶ 24, 564 N.W.2d 283. "We review the statute to determine if these two dictates are clear under a `reasonable person' standard." Eldred, at ¶ 24 (quoting State v. Mertz, 514 N.W.2d 662, 668 (N.D.1994) ("In determining whether the meaning of a statute is fairly ascertainable or adequate warning is given, we view the statute from the standpoint of the reasonable person who might be subject to its terms.")).

[¶ 11] "[T]he more important aspect of the vagueness doctrine `is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.'" Kolender, 461 U.S. at 358, 103 S.Ct. 1855 (quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974)). "For obvious reasons, the standard of certainty required in criminal statutes is more exacting than in noncriminal statutes. This is simply because it would be unthinkable to convict a man for violating a law he could not understand." Barenblatt v. United States, 360 U.S. 109, 137, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959). "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be...

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