Clark v. City of Draper

• Decision Date: 16 February 1999
• Docket Number: No. 97-4134,97-4134
• Citation: 168 F.3d 1185
• Parties: Carolyn CLARK and Karolyn's Pet Resort, Plaintiffs-Appellants, v. CITY OF DRAPER; Daniel F. Bertch; Leslie Cutler; Jan McNair; Boyd Johnson and City of Sandy, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1185

168 F.3d 1185

Carolyn CLARK and Karolyn's Pet Resort, Plaintiffs-Appellants, v. CITY OF DRAPER; Daniel F. Bertch; Leslie Cutler; Jan McNair; Boyd Johnson and City of Sandy Defendants-Appellees.

No. 97-4134.

United States Court of Appeals Tenth Circuit.

Feb. 16, 1999.

Franklin R. Brussow, Salt Lake City, Utah, for plaintiff-appellant.

Andrew M. Morse, Salt Lake City, Utah, for defendants-appellees.

Before BRISCOE, McKAY and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Appellant Carolyn Clark, owner of a private zoo in Draper City, Utah, brings this § 1983 action against the cities and various officials of Draper City and Sandy City, Utah, for violating her constitutionally protected property interests in two miniature blue foxes when the officials impounded and subsequently destroyed the animals. ¹ The district court granted appellees' summary judgment motion as to all claims. ² We affirm the district court and hold that the cities and their officials were acting within their police power under state and municipal law in seizing the foxes and testing them for rabies.

I

On May 18, 1994, four-year-old McKinley Eastmond suffered a skin abrasion while viewing two miniature blue foxes at appellant's petting zoo as part of a school field trip. There were no witnesses to the incident.

The boy's mother, Mrs. Eastmond, took him to a local pediatric emergency room. After her examination of the wound, the treating physician informed the Utah Department of Health that the boy may have been exposed to rabies. Mrs. Eastmond subsequently contacted Janet McNair, a Draper City Animal Control Officer and a defendant-appellee in this case. Upon contacting state officials on the morning of May 19, McNair learned that under state law, foxes are considered "wild" for purposes of rabies control because there is no licensed vaccine for foxes. Under Utah law and administrative regulations, the State Health Department has authority to control and prevent the spread of rabies. See Utah Code Ann. § 26-6-3 (1998) (granting State Health Department the authority to investigate and control communicable diseases); Utah Code Ann. § 26-6-11 (1998) (directing State Health Department to investigate reports of rabies). State regulations demand that any wild animal that bites or scratches a person be tested for rabies at once. The test requires that the animal be killed and its brain examined for evidence of rabies. See Utah Admin.Code 386-702-5(2.4) (1998).

A state official advised McNair to test both animals ³ for rabies within 48-72 hours. If tests were not conducted within that time, the boy would have to begin taking a series of rabies shots. Meanwhile, according to McNair, Ms. Clark resisted the officer's initial efforts to move the foxes to a secure enclosure while McNair conferred with state officials about the proper measures to take under the circumstances.

On the evening of May 19, upon a motion of defendant-appellee Draper City Prosecutor Leslie Cutler, Judge Daniel Bertsch of the Draper City Justice Court, also a defendant-appellee in this case, issued an Order of Impoundment. At 11:30 P.M. that night, the foxes were impounded and isolated. ⁴ Early the next morning, the Draper City Justice Court held a hearing concerning the disposition of the foxes in which Ms. Clark, Draper City officials, and state health officials were given the opportunity to present evidence. The city and state presented witnesses and evidence; the plaintiff offered only her own testimony that the foxes had never before bitten a person. The Court ordered that the foxes be turned over immediately to state health officials, and the animals were killed. The animals' brains tested negative for rabies.

II

We have jurisdiction over the district court's final judgment under 28 U.S.C. § 1291, and we review a grant of summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996).

To prove her claims, appellant must show that the municipal officials and municipalities ⁵ named in her suit acting "under color of any statute, ordinance, regulation, custom, or usage, of any State" subjected her "to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Her argument implicates her substantive and procedural due process rights stemming from her property in the foxes.

The initial issue we must address in considering whether appellant suffered a violation of her due process rights, therefore, is the precise nature of her property in the foxes. At the turn of the twentieth century, both the United States Supreme Court and the Supreme Court of the Territory of Utah held that property in domesticated canines is subject to the state's police power for the protection of its citizens. See Sentell v. New Orleans & C.R. Co., 166 U.S. 698, 700-04, 17 S.Ct. 693, 41 L.Ed. 1169 (1897) (noting that "property in dogs is of an imperfect or qualified nature," and that even if perfect, it would be "subject to the police power of the state"); Jenkins v. Ballantyne, 8 Utah 245, 30 P. 760, 760 (1892). In this century, numerous states have upheld this description of property in domesticated canines. See, e.g., Thiele v. City and County of Denver, 135 Colo. 442, 312 P.2d 786, 789 (1957); City of Water Valley v. Trusty, 343 So.2d 471, 472 (Miss.1977); but see 3A C.J.S. Animals § 5 (discussing "modern trend" of granting "full and unqualified status as property" to dogs). As the Supreme Court of Michigan has noted, however, "[w]hether the property in dogs is regarded as qualified or absolute, they are subject to the police power of the state, and may be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the protection of its citizens." People v. Yeo, 103 Mich.App. 418, 302 N.W.2d 883 (1981) (quoting Bugai v. Rickert, 258 Mich. 416, 242 N.W. 774, 774 (1932)). Even assuming appellant's property right is unqualified, when foxes are suspected of invecting a human with rabies, under Utah law they can legitimately be subjected to drastic regulation for purposes of rabies prevention.

Appellant's argument that because the foxes are "domestic" for purposes of Utah Admin. Code 657-3-1, her property interest enjoys greater protection is irrelevant. Utah has adopted the Compendium of Animal Rabies Control as its reference document for animal vaccine use. See Utah Admin. Code 386-702-5(3.2) (1998). The Compendium explicitly includes all foxes in its list of "wild" animals, and states that no rabies vaccine is licensed for use on wild animals. See National Ass'n of State Pub. Health Veterinarians, Compendium of Animal Rabies Control, § III(B)(1)(d) (1991). See also Centers for Disease Control, Rabies Prevention--United States (1991) (characterizing foxes as "wild animals" and stating that they are among those animals "most often affected with rabies and the cause of most indigenous cases of human rabies in the United States since 1960"). The foxes were therefore properly treated as "wild" for rabies control purposes.

Appellant further argues, however, that because the city has established a set of local animal control ordinances that cover rabies vaccinations and the handling of rabid animals, see Draper City, Utah, Code §§ 7-5-7 & 7-5-8, local officials could only follow the dictates of city law rather than those of applicable state regulations in their response to the threat of rabies. Under the city ordinance, appellant argues, her foxes were subject to quarantine rather than to the immediate and fatal testing for rabies that the state requires for "wild" animals. This argument is incorrect.

State law remains binding even in areas covered by municipal ordinances. See Utah Const. art. XI, § 5 (the state's grant of authority to municipal corporations cannot limit or restrict the power of the state legislature in state affairs and laws of general applicability); Utah Code Ann. § 10-1-108 (1996) (the provisions of the Utah Municipal Code "shall not be considered as impairing, altering, modifying or repealing any of the jurisdiction or powers ... of state government"). In matters where "uniform state action" is often required, such as in the protection of the health of the state's citizens, "[t]he duty of the state cannot be circumscribed by city limits." Salt Lake City v. International Ass'n of Firefighters, 563 P.2d 786, 789 (Utah 1977). Furthermore, the exercise of police power is an attribute of state sovereignty that the state may delegate without relinquishing to municipalities; when the state chooses to regulate and act under its police power, then, its laws and operations must predominate. See id.; Allgood v. Larson, 545 P.2d 530, 532 (Utah 1976) ("the state may always invade the field or regulation delegated to the cities and supercede, annul, or enlarge the regulation which the municipality attempted") (quoting Salt Lake City v. Kussee, 97 Utah 97, 85 P.2d 802 (1939) (Larson, J., dissenting)). And as numerous state supreme courts have concluded, the power to protect the public health and welfare from contagious diseases by destroying infected animals arises from the police power of both the state and its municipalities. See, e.g., Ruona v. City of Billings, 136 Mont. 554, 323 P.2d 29, 30 (1958); City of Dickinson v. Thress, 69 N.D. 748, 290 N.W. 653, 655 (1940); Rapid City v. Tuning, 82 S.D. 442, 147 N.W.2d 604, 605 (1967); King v. County of Arlington, 195 Va. 1084, 81 S.E.2d 587, 589-90 (1954).

Having held that appellant's property right in her foxes is entirely subject to applicable state laws and regulations protecting the public from the threat of rabies, we turn to the specific Utah regulation prescribing the disposition of a fox under suspicion of infecting a human with rabies. Utah regulations require that any wild animal that bites or scratches a person ...