Hearn v. City of Overland Park

• Citation: 772 P.2d 758,244 Kan. 638
• Decision Date: 14 April 1989
• Docket Number: No. 62045,62045
• Parties: , 80 A.L.R.4th 51, 57 USLW 2642 Randy L. HEARN, et al., Appellants, v. The CITY OF OVERLAND PARK, Kansas, Appellee.
• Court: United States State Supreme Court of Kansas

Page 758

772 P.2d 758

244 Kan. 638, 80 A.L.R.4th 51, 57 USLW 2642

Randy L. HEARN, et al., Appellants, v. The CITY OF OVERLAND PARK, Kansas, Appellee.

No. 62045.

Supreme Court of Kansas.

April 14, 1989.

Syllabus by the Court

In an action to enjoin the City of Overland Park from enforcing an ordinance regulating the ownership of pit bull dogs within the city, the record is examined and it is held: (1) The ordinance is not unconstitutionally vague or overbroad; (2) the ordinance does not violate the due process rights of plaintiffs under the United States and Kansas Constitutions; (3) the ordinance does not violate the equal protection clauses of the United States and Kansas Constitutions; and (4) the district court did not err in dismissing the plaintiffs' claim for damages pursuant to 42 U.S.C. § 1983 (1982).

Daniel R. Jones of Christen, deVries & Pigeon, Kansas City, Mo., argued the cause, and Judith K. Macy, of Law Offices of Michael W. Laster, Overland Park, was with him on the briefs for appellants.

Michael R. Santos, Asst. City Atty., argued the cause and was on the brief for appellee.

ALLEGRUCCI, Justice:

The plaintiffs seek to enjoin the City of Overland Park from enforcing an ordinance regulating the ownership of pit bulls within the city. The plaintiffs are thirteen residents of Johnson County, Kansas, who own dogs kept within the City of Overland Park, Kansas. In their petition filed with the district court, the plaintiffs contended that the ordinance was unconstitutionally vague and overbroad, and violated their rights to due process and equal protection of the laws. The petition also included a claim for damages pursuant to 42 U.S.C. § 1983 (1982). The district court upheld the constitutionality of the ordinance, and found it to be a valid and enforceable exercise of the city's police power. The plaintiffs now appeal.

On September 21, 1987, the Overland Park city council adopted an ordinance defining the "pit bull dog" as a "dangerous animal," within the meaning of Overland Park Municipal Code Ch. 6.10. As subsequently amended, the ordinance defines a "pit bull dog" as

"any and all of the following dogs:

"(a) the Staffordshire Bull Terrier breed of dogs;

"(b) the American Staffordshire Terrier breed of dogs;

"(c) the American Pit Bull Terrier breed of dogs;

"(d) Dogs which have the appearance and characteristics of being predominantly of the breeds of dogs known as Staffordshire Bull Terrier, American Pit Bull Terrier, [or] American Staffordshire Terrier.

"The registration of a dog at any time as a pit bull or any of the dogs listed above shall constitute prima facie evidence the animal is prohibited by this section."

Other sections of the ordinance require the owner of a pit bull dog to restrain the animal indoors or to a confined kennel. If the animal is removed from this environment, it must be secured by a leash and muzzle. The owner is required to prominently display a "Beware of Dog" sign on the premises. The owner is also required to purchase $50,000 in single-incident liability insurance, to compensate for any damage caused by the animal.

The plaintiffs contend that the district court erred in concluding that the ordinance was not impermissibly vague and also in concluding that the plaintiffs had no standing to raise a claim of vagueness. We must, therefore, first determine if the plaintiffs had standing to raise vagueness. The district court found that nine of the plaintiffs had identified their animals as pit bull dogs, and have registered them as such animals with the City of Overland Park, Kansas. As to plaintiffs Barbara LeClerq Boran and William O. Mitchum, the court found that they "at one time registered their dogs as 'pit bulls' with the City of Overland Park, but have since that time had their dogs reidentified by a licensed veterinarian as another breed mix, and as such have no standing in this lawsuit." Finally, the district court found that two plaintiffs, Myrtle LeClerq and Maxine Mitchum, had failed to establish that they owned animals separate and distinct from those owned by Barbara Boran and William Mitchum.

The district court correctly found that nine plaintiffs did not possess standing to raise the present vagueness argument. One to whose conduct a statute clearly applies may not successfully challenge it for vagueness. Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974). Having acknowledged that their animals are pit bull dogs, these plaintiffs cannot complain of the allegedly vague nature of the ordinance. However, such is not the case with regard to the four remaining plaintiffs, William O. Mitchum, Maxine Mitchum, Barbara LeClerq Boran, and Myrtle LeClerq.

That the animals owned by these plaintiffs may once have been registered as pit bull dogs, but subsequently have been reidentified as other breeds, does not establish that they do not fall within the scope of the challenged ordinance. Although identified as another breed, the animals may still fall within Subsection (d) of the portion of the ordinance defining pit bull dogs. Subsection (d) defines as a pit bull dog a dog which has "the appearance and characteristics of being predominantly" those of the other specifically designated breeds. The district court erred in finding these plaintiffs did not have standing to raise vagueness. To resolve the claims of these plaintiffs, therefore, we must turn to the substance of their vagueness claim.

In considering the issues raised in the present appeal, it is necessary to keep in mind the rules relating to the review of the constitutionality of legislation. This court presumes that the challenged legislation is constitutional. All doubts concerning the legislation must be resolved in favor of its validity. Before the legislation may be stricken down, it must clearly appear that it violates the Constitution. It is the duty of the court to uphold the legislation under attack, if possible, rather than defeat it; if there is any reasonable way to construe the statute as constitutionally valid, that should be done. Lakeside Village Improvement Dist. v. Jefferson County, 237 Kan. 106, 113-14, 697 P.2d 1286 (1985).

With these rules in mind, we first consider plaintiffs' contention that the district court erred in finding that the city ordinance was not unconstitutionally vague.

Legislation is unconstitutionally vague when one cannot reasonably understand that his contemplated conduct is within the scope of that proscribed by the legislation. See United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954).

"As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 75 L.Ed.2d 903, 103 S.Ct. 1855 [1858] (1983).

However, "ultimate, god-like precision" is not required by the Constitution. Miller v. California, 413 U.S. 15, 28, 93 S.Ct. 2607, 2617, 37 L.Ed.2d 419 (1973). The Constitution "does not require impossible standards"; it is satisfied by statutory language which "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more." United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1541-42, 91 L.Ed. 1877 (1947). That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. Miller v. California, 413 U.S. at 27 n. 10, 93 S.Ct. at 2617 n. 10; United States v. Petrillo, 332 U.S. at 7, 67 S.Ct. at 1541; Robinson v. United States, 324 U.S. 282, 285, 286, 65 S.Ct. 666, 668-69, 89 L.Ed. 944 (1945); see United States v. Harriss, 347 U.S. at 624 n. 15, 74 S.Ct. at 815 n. 15.

Because of the strong presumption in favor of the constitutional validity of legislation, statutes are not " 'automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.' " Parker v. Levy, 417 U.S. at 757, 94 S.Ct. at 2562 (quoting United States v. National Dairy Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-98, 9 L.Ed.2d 561 [1963]. In this regard, the United States Supreme Court has noted that "the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree." Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232 (1913).

It is important to note that we are not dealing with an ordinance that limits constitutionally protected conduct. Because the present ordinance does not infringe upon explicit constitutional guarantees, such as freedom of speech, the ordinance should be upheld unless it "is impermissively vague in all of its applications." Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, reh. denied, 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982). The plaintiffs must establish that the ordinance is unconstitutional on its face, which means it must be demonstrated to be " 'invalid in toto --and therefore incapable of any valid application.' " Hoffman Estates, 455 U.S. at 494 n. 5, 102 S.Ct. at 1191 n. 5 (quoting Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 1223, 39 L.Ed.2d 505 [1974]. In order to establish that legislation is unconstitutional on its face, the person challenging the legislation must establish that it is vague " 'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.' " Hoffman Estates, 455 U.S. at 495 n. 7, ...