City of Hays v. Angle, 113

• Court: Court of Appeals of Kansas
• Writing for the Court: Leben, J.
• Docket Number: 113,505
• Parties: City of Hays, Appellee v. Steven Angle, Appellant.
• Decision Date: 08 July 2016

City of Hays, Appellee
v.
Steven Angle, Appellant.

No. 113, 505

Court of Appeals of Kansas

July 8, 2016

NOT DESIGNATED FOR PUBLICATION

Appeal from Ellis District Court; Edward E. Bouker, judge.

Steven Angle, appellant pro se.

Curtis Brown, of Glassman, Bird, Brown & Powell, L.L.P., of Hays, for appellee.

Before Malone, C.J., Leben, J., and Johnson, S.J.

MEMORANDUM OPINION

Leben, J.

It's not every day that the police in Hays, Kansas, get a complaint about a goose on the loose, but the complaint they got on May 4, 2014, wasn't the first. In fact, it was the third police complaint about the two pet geese Steven Angle had been keeping at his home. And after that May complaint-about a goose chasing a woman pushing a stroller near Angle's home-police apprehended the geese and took them into custody. Rather than declaring the geese under arrest and housing them in the local jail, the police impounded the geese and placed them with a local veterinary clinic.

The police cited Angle for violating Hays Municipal Code section 5-3(a), which prohibits keeping animals or fowl in the city if they would "normally be held in stables, sheds, pens, or other places where undomesticated animals are kept." The ordinance specifically lists 12 types of animals or birds that it covers, including chickens, ducks, geese, and turkeys. But Angle claims his geese fit within an exception that allows keeping "animals and fowl which are commonly kept as household pets such as cats, hamsters, rabbits, parakeets, and other comparable animals."

The case is now before us on appeal after two trials: one in municipal court and one in district court.

The municipal court held its trial in July 2014, about 2 months after the incident. Pending trial, the geese had remained at the veterinary clinic, which charged $40 per day for their care. The municipal court found Angle guilty of violating the ordinance and ordered that he pay a $50 fine, the minimum amount allowed under the municipal code for a violation of this provision. In addition, it ordered that he pay $2, 430 to the veterinary clinic; the court also provided that after Angle paid the clinic, he could give the geese a new home outside the city limits or have the police chief dispose of the geese. Angle instead exercised his right to appeal to the district court.

When a municipal court decision is appealed to the district court, it is tried there "de novo, " or anew, meaning that the first trial no longer counts and the district court hears the case independently. But the district court also convicted Angle (in February 2015). It too entered a $50 fine and ordered him to pay the ongoing veterinary bill for housing the geese before trial.

Angle then appealed to our court. On appeal to us, we do not start over-the district court hears the evidence; we review its work for legal error.

Angle makes two claims on appeal. First, he contends that the municipal ordinance is so vague that enforcing it would violate the United States Constitution. Second, he claims that the evidence against him was insufficient to show that he violated the ordinance.

We begin our review of the ordinance with its text. We set out below the key portions of section 5-3, which is entitled, "Keeping of Wild and Domestic Animals":

"(a) It is unlawful for the owner, lessee, occupant or person in charge of any premises in the city to possess and maintain any animal or fowl within the city which are normally held in stables, sheds, pens, or other places where undomesticated animals are kept, i.e., horses, mules, cattle sheep, goats, swine, chickens, ducks, geese, turkeys pigeons, or guineas. This subsection does not apply to

(3) The maintaining of nonpoisonous and nonvicious animals and fowl which are commonly kept as household pets, such as cats, hamsters, rabbits, parakeets, and other comparable animals, when kept as household pets and in a safe and sanitary manner in accordance with this chapter."

. . . .

"(e) Any animal found within the city in violation of this section shall be impounded by the chief of police or designee. Upon conviction of a violation of this section, the judge of the municipal court of the city shall order the owner . . . to surrender the animal to the chief of police or designee for humane destruction or other disposition. In addition, whoever violates any provision of this section shall be guilty of a misdemeanor and shall be punished by a fine

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