Garcia v. Village of Tijeras

• Decision Date: 11 October 1988
• Docket Number: No. 9424,9424
• Citation: 108 N.M. 116,1988 NMCA 90,767 P.2d 355
• Parties: , 57 USLW 2507 Melvin L. GARCIA, Raymond A. Sanchez, David J. Wilson, Margaret H. Amacker and Duke City Pit Bull Terrier Club, Inc., a non-profit New Mexico corporation, Plaintiffs-Appellants, v. The VILLAGE OF TIJERAS, a municipality of the State of New Mexico, Defendant- Appellee.
• Court: Court of Appeals of New Mexico

Page 355

767 P.2d 355

108 N.M. 116, 57 USLW 2507

Melvin L. GARCIA, Raymond A. Sanchez, David J. Wilson Margaret H. Amacker and Duke City Pit Bull Terrier Club, Inc., a non-profit New Mexico corporation Plaintiffs-Appellants, v. The VILLAGE OF TIJERAS, a municipality of the State of New Mexico, Defendant- Appellee.

No. 9424.

Court of Appeals of New Mexico.

Oct. 11, 1988.

Certiorari Denied Dec. 6, 1988.

[108 NM 117] Billy R. Blackburn, Michael Ushijima, Albuquerque, for plaintiffs-appellants.

Charles J. Crider, Matthews, Crider, Calvert & Bingham, P.C., Albuquerque, for defendant-appellee.

Dale C. Christensen, Jr., Mark J. Hyland, Heidi B. Goldstein, Seward & Kissel, New York City, Louis P. McDonald, Albuquerque, for the American Kennel Club, Inc., as Amicus Curiae.

OPINION

BIVINS, Judge.

Plaintiffs appeal from a judgment upholding the constitutionality of an ordinance of the Village of Tijeras, New Mexico, banning the ownership or possession of a breed of dog "known as American Pit Bull Terrier." They challenge the ordinance on the grounds that it: (1) is void for vagueness; (2) violates substantive and procedural due process; and (3) provides for the taking of private property without just compensation.¹ Plaintiffs do not question the authority of the Village to enact the ordinance. We affirm.

FACTS

The Village of Tijeras (Village) is a small, semi-rural community located within Bernalillo County with a population of approximately 312 residents. Eighteen of the eighty households within the Village possessed one or more pit bull dogs at the time the ordinance was enacted. For some time prior to enactment of the ordinance, Village residents had been repeatedly subjected to attacks on their persons and animals by pit bull dogs. Many of their animals were killed and several residents were injured in the attacks. Two months prior to enactment of the ordinance, a nine-year-old girl was severely mauled by pit bull dogs on her way home from school.

Following a series of town meetings for the purpose of discussing the problem presented by these dogs, the Village passed Ordinance No. 32 on May 14, 1984. Section VI, Paragraph I of Ordinance No. 32 makes it unlawful:

to own or possess in the Village any dog of the breed known as American Pit Bull Terrier. Any such dog may be impounded by the Mayor or Animal Control Officer to be destroyed as provided herein. It shall be held until a determination is made by a court of competent jurisdiction that the animal is an American Pit Bull Terrier and shall accordingly order that the dog be destroyed.

A month later, plaintiffs filed suit seeking declaratory judgment holding the Village ordinance unconstitutional. Plaintiffs Melvin L. Garcia, Raymond A. Sanchez, and David J. Wilson are residents of the Village and each is the owner of one or more American Pit Bull Terriers. Plaintiff Margaret H. Amacker is a resident of Bernalillo County and is the owner of four "domestic animals which may be classified as American Pit Bull Terriers." Amacker is also the president and registered agent for the Duke City Pit Bull Terrier Club and travels frequently to the Village with her four animals.

After denying defendant's motion for summary judgment, the matter proceeded to trial. The trial court entered its findings of fact and conclusions of law upholding the ordinance. Judgment was entered in favor of the Village. This appeal follows.

DISCUSSION

As a preliminary matter we note that in scrutinizing the constitutionality of a legislative enactment certain rules of statutory construction favoring constitutionality of the measure are applicable. Foremost among these is the rule that all legislative acts are presumed to be constitutional. State v. Segotta, 100 N.M. 498, 672 P.2d 1129 (1983). This presumption extends to municipal ordinances. City of Albuquerque v. Jones, 87 N.M. 486, 535 P.2d 1337 (1975). In reviewing the constitutionality of a statute or ordinance, we indulge in every presumption favoring validity of the enactment. Vandolsen v. Constructors, Inc., 101 N.M. 109, 678 P.2d 1184 (Ct.App.1984). This court is obliged to uphold the enactment unless it is satisfied beyond all reasonable doubt that it exceeds constitutional limitations. Id.; State v. Ball, 104 N.M. 176, 718 P.2d 686 (1986). The party attacking a statute or ordinance has the burden of establishing its invalidity. City of Albuquerque v. Jones.

All of plaintiffs' arguments are based on asserted violations of their right to due process.²

1. Vagueness

Plaintiffs first argue that the challenged ordinance fails to define the term "known as American Pit Bull Terrier" with sufficient specificity and is, therefore, void for vagueness. They contend the term is incapable of precise interpretation. Plaintiffs note that the term "American Pit Bull Terrier" is used only by the United Kennel Club, that the American Kennel Club uses the term "American Staffordshire Terrier" to register the same breed, that the American Kennel Club also registers the "Staffordshire Bull Terrier" and the "Bull Terrier," and that all of these breeds might be described as "pit bulls."

The trial court found that the American Pit Bull Terrier is a recognized breed of dog readily identifiable by laymen. We understand the trial court's finding to have been that the breed can be identified by persons who are not qualified to be dog show judges. Plaintiffs have challenged this finding as not supported by substantial evidence. They further argue that the breed varies so much in physical characteristics that it is difficult for the average person to ascertain, with certainty, whether a dog is in fact an American Pit Bull Terrier.

Plaintiffs also contend that owners of mixed-breed dogs, which might be to some percent pit bull, will have no idea whether the ordinance applies to them at all, because the ordinance lacks meaningful standards that could be used to identify those dogs subject to its prohibition. Plaintiffs note that a person might drive through the Village of Tijeras with a pit bull in his or her vehicle without any prior notice of the ordinance.

Under these circumstances, plaintiffs argue that the phrase "known as" is open to a number of interpretations. They contend that this phrase is independently vague. Plaintiffs have standing to challenge the ordinance, on vagueness grounds, only as it applies to them. See diLeo v. Greenfield, 541 F.2d 949 (2d Cir.1976); State v. Hines, 78 N.M. 471, 432 P.2d 827 (1967). One to whose conduct a statute clearly applies may not successfully challenge it for vagueness. Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).

There was testimony at trial that the term "pit bull" is the generic term for "American Staffordshire Terrier." There was also testimony at trial that there is no difference between the American Staffordshire Terrier and the American Pit Bull Terrier.

In addition, there was testimony that each breed of dog has a typical physical appearance termed as "phenotype," and that an unregistered dog can be identified as being of the breed "American Pit Bull Terrier" by its physical characteristics, or phenotype. Several witnesses testified that they could recognize an American Pit Bull Terrier by its physical characteristics.

We believe this evidence supports a determination that the breed American Pit Bull Terrier is a breed of dog recognized by its physical appearance. Given our obligation to indulge every presumption in favor of constitutionality, we interpret the term "known as" in light of the testimony at trial. Thus, we interpret the ordinance to include not only dogs that are registered, but also dogs that are recognizable, as American Pit Bull Terriers or American Staffordshire Terriers.

The trial court found that plaintiffs owned or were involved with American Pit Bull Terriers. These findings were not challenged on appeal. We conclude that the ordinance clearly applies to plaintiffs' conduct.

It is clear, then, that plaintiffs had notice that the ordinance proscribes the conduct in which they were engaged. The essence of the vagueness doctrine is notice. State ex rel. Health & Social Servs. Dep't v. Natural Father, 93 N.M. 222, 598 P.2d 1182 (Ct.App.1979). Since plaintiffs had the requisite notice that the ordinance prohibited their activities, the ordinance is not vague as applied to them. Therefore, we are precluded from striking the ordinance on that ground.

As we noted above, plaintiffs attempt to attack the ordinance by pointing out that it is vague as it might be applied to owners of mixed breeds of dog or to other dog owners who have no knowledge that their dog may be "known as [an] American Pit Bull Terrier." This attack is not germane to the inquiry here. A statute is not void for vagueness when a purely facial attack is made alleging uncertainty in its application to hypothetical parties. Gallaher v. City of Huntington, 759 F.2d 1155 (4th Cir.1985). "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982) (footnote omitted).

The ordinance clearly and admittedly applies to plaintiffs' conduct and, therefore, is not vague for purposes of this appeal.

2. Rational Relation

Plaintiffs argue that the Village ordinance at issue violates substantive due process. In order to withstand scrutiny under the fifth and fourteenth amendments to the United States Constitution and similar provisions in our state Constitution, N.M. Const. art. II, Secs. 4 & 18, a statute or ordinance must bear a rational relationship to a legitimate legislative goal or purpose. Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978); Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976); Casillas v. S.W.I.G., ...