Helmers v. City of Des Moines, No. 17-0794

CourtCourt of Appeals of Iowa
Writing for the CourtTABOR, Judge.
Citation918 N.W.2d 501 (Table)
Docket NumberNo. 17-0794
Decision Date04 April 2018
Parties Dianna HELMERS, Plaintiff-Appellant, v. CITY OF DES MOINES, Defendant-Appellee.

918 N.W.2d 501 (Table)

Dianna HELMERS, Plaintiff-Appellant,
CITY OF DES MOINES, Defendant-Appellee.

No. 17-0794

Court of Appeals of Iowa.

Filed April 4, 2018

Jamie L. Hunter of Dickey & Campbell Law Firm, P.L.C., Des Moines, for appellant.

John O. Haraldson, Assistant City Attorney, for appellee.

Heard by Danilson, C.J., and Vaitheswaran, Doyle, Tabor, and McDonald, JJ.

TABOR, Judge.

This appeal involves the legality of a dangerous animal declaration issued by the City of Des Moines. A dog, Pinky, bit a neighbor’s cat, Rebel, when both animals were unlicensed and running at large in March 2016. After impounding Pinky at the Animal Rescue League, the city’s chief humane officer decided the dog exhibited "vicious propensities" under Des Moines Municipal Code section 18-196 (2016) and ordered her to be destroyed. Because we find the dangerous-animal ordinance to be unconstitutionally vague as applied to Pinky, we reverse the city’s declaration.

I. Facts and Prior Proceedings

In 2010, the city sent an animal control officer to the home of Charles Bickel based on a report his dog resembled a pit bull. At that time, the city declared Bickel’s pet, Pinky, to be a "vicious dog" based on her breed1 and required Bickel to provide proof of a current license and $100,000 of liability insurance coverage. Bickel initially complied but did not keep Pinky’s license up to date. According to Bickel, for the next six years Pinky lived in his home without incident, never biting a person or another animal. Then, on March 27, 2016, a friend visiting Bickel’s home accidently let Pinky out into the yard unsupervised while Bickel was taking a shower. When Bickel saw Pinky head back into the house he noticed a cut on her face and blood on her nose.

Meanwhile, Bickel’s neighbor, Elizabeth, noticed her cat, Rebel, "had managed to sneak out of the door and was in her backyard." According to the animal incident report:

Elizabeth looked out the back window to see the neighbor’s white Pit Bull type dog named "Pinky" shaking Rebel in her mouth. Elizabeth ran outside and yelled. Pinky dropped Rebel and Rebel ran up a tree where she stayed for an hour. ... When Rebel came down, Elizabeth found punctures on her chest and took her to Iowa Vet Specialties. ... Elizabeth believes Rebel scratched Pinky up as well, but is unsure of bite wounds.

Elizabeth initially told Bickel’s friend "it looks like Rebel got the better of Pinky." But according to the veterinary records, Rebel had a "large laceration/wound on the right side of the dorsal pelvic area, approximately 6 centimeters in diameter, with an additional wound" and "punctures on the right thorax, just caudal to the thoracic limb." The vet described Rebel’s injuries as "crushing injury to tissues resulting in devitalization" and "severe deglovingwounds." The cat required three dozen staples.

No witness saw which animal was the initial aggressor in the altercation.

The city impounded Pinky on March 29, 2016. The quarantine was set to last seven days, with Pinky’s release slated for April 6. But on April 5, Chief Humane Officer James Butler declared Pinky to be a dangerous dog based on her conduct. See Des Moines, Iowa, Code § 18-196(3), (6). After a conversation with Sergeant Butler, Bickel signed a document labeled "surrender conditions," but the next day Bickel had a change of heart and filed an administrative appeal. After filing the appeal, Bickel sold his interest in Pinky to Dianna Helmers. The administrative law judge (ALJ) did not believe either Bickel or Helmers had standing to pursue the appeal but nevertheless reached the merits of Helmers’s arguments.2

The ALJ decided Pinky’s seizure was procedurally proper and found substantial evidence supported the dangerous animal declaration.3 The ALJ noted Helmers’s claim that the ordinance was unconstitutionally vague:

The Appellant argues in the alternative that the dangerous dog ordinance is unconstitutional for being vague and broad. The Appellant argues that under section 18-196, there is no element of provocation or a provision for self-defense. Therefore, a dog that was attacked by an at-large, vicious animal, or a dog protecting a human, could be considered a dangerous dog. The Appellant further argues that the terms "disfiguring laceration" and "corrective surgery" are ambiguous, as they are not defined by City ordinance.

As those constitutional claims were beyond the purview of the administrative proceedings, the ALJ preserved them for judicial review. See McCracken v. Iowa Dep’t. of Human Servs. , 595 N.W.2d 779, 785 (Iowa 1999) (discussing necessity of raising constitutional claims during administrative process).

Helmers filed a petition for writ of certiorari to the district court, which affirmed the ALJ’s finding of substantial evidence to support the dangerous dog declaration.4 Helmers filed a motion to enlarge, pointing out the district court did not address her argument that the dangerous-dog ordinance was unconstitutionally vague. In response, the district court upheld the constitutionality of the ordinance. Helmers now appeals the district court’s rulings.

II. Scope and Standards of Review

Our review of a district court certiorari ruling is generally for the correction of errors at law. Iowa R. Civ. P. 1.1412 (stating appeal from a district court’s judgment in a certiorari proceeding is "governed by the rules of appellate procedure applicable to appeals in ordinary civil actions"); see Dressler v. Iowa Dep’t of Transp. , 542 N.W.2d 563, 564–65 (Iowa 1996). "Because [Helmers] alleges a constitutional violation, our review is de novo." See id.

III. Analysis

The keeping of "dangerous animals" is prohibited within the city of Des Moines. Des Moines, Iowa, Code § 18-200. The municipal code defines a "dangerous animal" as:

any animal, including a dog, except for an illegal animal per se, as listed in the definition of illegal animal, that has bitten or clawed a person while running at large and the attack was unprovoked, or any animal that has exhibited vicious propensities in present or past conduct, including such that the animal:

(1) Has bitten or clawed a person on two separate occasions within a 12-month period;

(2) Did bite or claw once causing injuries above the shoulders of a person;

(3) Could not be controlled or restrained by the owner at the time of the attack to prevent the occurrence; or

(4) Has attacked any domestic animal or fowl on three or more separate occasions within the lifetime of the attacking animal.

(5) Has killed any domestic animal while off of the property where the attacking animal is kept by its owner.

(6) Has bitten another animal or human that causes a fracture, muscle tear, disfiguring lacerations or injury requiring corrective or cosmetic surgery; or

(7) Any animal that was required to be removed from another city or county because of behavior that would also meet the definition of "dangerous animal" as set out in this section.

Des Moines, Iowa, Code § 18-196.

In this case, the chief humane officer declared Pinky was a dangerous animal under paragraphs (3) and (6) of section 18-196. Because the ALJ upheld the declaration under paragraph (6) only, Helmers need not challenge the alternative ground as illegal in this certiorari appeal.

Helmers devotes the lion’s share of her brief to arguing the city’s dangerous dog declaration was not supported by substantial evidence. Evidence is substantial when reasonable minds could accept the quality and quantity of proof as adequate to reach the same findings as the hearing officer. See City of Des Moines v. Webster , 861 N.W.2d 878, 882 (Iowa Ct. App. 2014). If the reasonableness of the hearing officer’s decision is open to a fair difference of opinion, courts may not substitute their own decisions on questions of substantial evidence. Id. But rather than retracing the district court’s analysis of the substantial-evidence question, we find dispositive Helmers’s claim that the city’s dangerous-animal ordinance was unconstitutional as applied to Pinky. See U.S. Const. amend. XIV, Iowa Const. art. I, § 9.

Due process requires legislation imposing a sanction5 to give a person of ordinary intelligence fair notice of what conduct is prohibited so he or she may act accordingly. Am. Dog Owners Ass’n, Inc. v. City of Des Moines , 469 N.W.2d 416, 417–18 (Iowa 1991). Due process also requires the enactment to provide explicit standards for those who enforce it and must not delegate basic policy matters to law enforcement or judicial officers. Id . at 418. In assessing whether the city’s ordinance is void for vagueness, we presume constitutionality and give the provision any reasonable construction to uphold it. See State v. Showens , 845 N.W.2d 436, 441 (Iowa 2014). The practical effect of deciding an ordinance is unconstitutional "as applied" is "to prevent its future application in a similar context, but not to render it utterly inoperative." See Ada v. Guam Soc. of Obstetricians & Gynecologists , 506 U.S. 1011, 1011 (1992) (Scalia, J., dissenting from denial of certiorari).

After examining both of these requirements, we conclude the definition of a dangerous dog in section 18-196—particularly how the phrase "vicious propensities" is illustrated by paragraph (6)—violates the void-for-vagueness doctrine as applied...

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