State v. Cowan

• Decision Date: 22 September 2004
• Docket Number: Case No. 2003-1406.
• Parties: The State of Ohio, Appellant, v. Cowan, Appellee.
• Court: Ohio Supreme Court

103 Ohio St.3d 144

2004-Ohio-4777

814 NE 2d 846

2004-Ohio-4777

The State of Ohio, Appellant, v. Cowan, Appellee.

Case No. 2003-1406.

In the Supreme Court of Ohio.

Submitted March 30, 2004.

Decided September 22, 2004.

FRANCIS E. SWEENEY, SR., J.

{¶1} On the night of October 1, 2001, a Portage County deputy dog warden was summoned to the home of Margaret and Jeffrey Maurer to investigate a dog-bite incident. At the home, the deputy dog warden spoke with Jeffrey Maurer. Mr. Maurer told the deputy that two dogs, belonging to his neighbor, Janice Cowan, defendant-appellee, had attacked his wife. After talking with Mr. Maurer, the deputy dog warden made the determination that appellee's dogs were vicious. The deputy dog warden then went to appellee's home to inform appellee of this determination and to advise appellee of her responsibilities according to the law. Appellee was notified that she must confine her dogs in a certain manner and was given paperwork explaining her legal responsibilities. Appellee refused to sign the paperwork.

{¶2} After this incident, the dog warden's office was summoned two more times to appellee's residence in response to complaints that her dogs were roaming the neighborhood. The first time, the deputy warden found the dogs tethered to a tree in a manner that was not in compliance with the vicious-dog law, which requires confinement in a locked, fenced yard or in a pen with a top. The deputy handed appellee a copy of the law and advised her to follow it. The second time, the deputy warden investigated and found the dogs chained to a stake in the ground, a form of restraint that does not comply with the vicious-dog law. After discussing the case with his superior, the deputy warden filed charges against appellee.

{¶3} Appellee was subsequently charged with two counts of failing to confine a vicious dog, violations of R.C. 955.22(D)(1), misdemeanors of the first degree; one count of failing to obtain the required liability insurance for a vicious dog, a violation of R.C. 955.22(E), a misdemeanor of the first degree; and one count of failing to restrain a dangerous dog, a violation of R.C. 955.22(D)(2)(b), a misdemeanor of the fourth degree. Prior to her trial, appellee filed a motion to dismiss the charges on the grounds that R.C. 955.22 was void for vagueness and further that the statute violated her due process rights. The motion was overruled and the case proceeded to trial.

{¶4} At trial, appellee renewed her motion to dismiss. Again, it was denied. The jury convicted her of all charges. The trial court fined appellee $750 plus costs and sentenced her to 365 days in jail. The court suspended $250 of the fine and 360 days of the sentence on certain conditions, including a requirement that appellee surrender her dogs¹1 and that she not own another dog for one year.

{¶5} The court of appeals reversed her convictions, finding that R.C. 955.22 unconstitutionally deprived appellee of her due process rights. Specifically, the appellate court found that appellee had been denied due process because she had no opportunity to be heard prior to her property rights being substantially and adversely affected. The court found that, according to R.C. 955.22, the dog warden had unfettered discretion to label appellee's dogs as dangerous and/or vicious. Further, there was no mechanism for appealing that determination.

{¶6} This cause is now before this court upon the acceptance of a discretionary appeal.

{¶7} At issue in this case is whether R.C. 955.22 violates procedural due process. It is well settled that an enactment of the General Assembly is entitled to a strong presumption of constitutionality. State v. Hochhausler (1996), 76 Ohio St.3d 455, 458, 668 N.E.2d 457. Therefore, challenged legislation will not be invalidated unless the challenger establishes the unconstitutional nature of the statute beyond a reasonable doubt. Id. We apply these principles to this case.

{¶8} Although the concept is flexible, at its core, procedural due process under both the Ohio and United States Constitutions requires, at a minimum, an opportunity to be heard when the state seeks to infringe a protected liberty or property right.² Boddie v. Connecticut (1971), 401 U.S. 371, 377, 91 S.Ct. 780, 28 L.Ed.2d 113. Further, the opportunity to be heard must occur at a meaningful time and in a meaningful manner. Mathews v. Eldridge (1976), 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18; Hochhausler, 76 Ohio St.3d at 459, 668 N.E.2d 457. The right to procedural due process is conferred not by legislative grace, but by constitutional guarantee. Thus, while the legislature may elect not to confer a particular property right, it may not constitutionally authorize the deprivation of a property interest, once conferred, without appropriate procedural safeguards. Arnett v. Kennedy (1974), 416 U.S. 134, 167, 94 S.Ct. 1633, 40 L.Ed.2d 15 (Powell, J., concurring in part).

{¶9} It is undisputed that citizens enjoy the right to own dogs, and in State v. Anderson (1991), 57 Ohio St.3d 168, 566 N.E.2d 1224, we recognized the special relationship that often exists between owners and dogs. We remarked that "to many, a pet dog is as important and as loved as * * * human members of the family." Id. at 170, 566 N.E.2d 1224. Thus, most dog owners consider their pet to be more than a mere thing, and the ownership of it constitutes a valuable right. Regardless, however, of the possibility of strong sentimental attachment, a dog is still property. Therefore, dogs are subject to the state's police power. The state may use its power to regulate or destroy dogs in order to protect its citizenry. Id.

{¶10} One way for the state to regulate dogs is found in R.C. 955.22.³ R.C. 955.22(D)(1) requires owners of a dangerous or vicious dog, as defined in R.C. 955.11(A)(1)(a) and (A)(4)(a), to confine the dog in a certain manner. R.C. 955.22(E) requires the owner of a vicious dog to obtain a certain amount of liability insurance. Any owner who fails to comply with these requirements is guilty of a misdemeanor of the first or fourth degree. R.C. 955.99(F) and (G)(2).

{¶11} According to appellee, R.C. 955.22 violates procedural due process as there is no opportunity for a defendant to be heard with respect to the labeling of a dog as either vicious or dangerous. Here, appellee asserts that the deputy dog warden made her determination based upon the unsupported word of the complaining parties that her dogs, without provocation, attacked Mrs. Maurer. Appellee asserts that she was not given the chance to present contrary evidence before substantial regulatory burdens were imposed on her property.

{¶12} However, appellant argues that R.C. 955.22 is constitutional because appellee was afforded the right to challenge her dogs' classification at her criminal trial. Appellee responds that the ability to challenge this label at a later criminal trial does not offer her a meaningful opportunity to be heard before her property rights have been infringed by official state action. We agree with appellee.

{¶13} Once the dog warden made the unilateral decision to classify appellee's dogs as vicious, R.C. 955.22 was put into effect and restrictions were placed upon appellee and her dogs. No safeguards, such as a right to appeal or an administrative hearing, were triggered by this determination to challenge the viciousness label or its ramifications. In fact, it was not until appellee was formally charged as a criminal defendant that she could conceivably challenge the viciousness designation under R.C. 955.22. We find it inherently unfair that a dog owner must defy the statutory regulations and become a criminal defendant, thereby risking going to jail and losing her property, in order to challenge a dog warden's unilateral decision to classify her property. The statute does not provide appellee a right to be heard in a meaningful time and in a meaningful manner on the issue of whether her dogs were vicious or dangerous. Accordingly, we find that R.C. 955.22 violates procedural due process insofar as it fails to provide dog owners a meaningful opportunity to be heard on the issue of whether a dog is "vicious" or "dangerous" as defined in R.C. 955.11(A)(1)(a) and (A)(4)(a).

{¶14} Even assuming that R.C. 955.22 provides a meaningful opportunity to be heard on a dog's classification, it is certainly unconstitutional as applied here. Although appellant now argues that one aspect of its case at trial was to establish that the dogs were vicious and dangerous, a reading of the transcript reveals that the state did not believe that it had this burden. It is true that the state presented evidence at trial from the victim and an eyewitness relating the dog-bite incident and identifying the dogs as belonging to appellee. However, the state also presented testimony from the deputy warden that the determination that these dogs were vicious had already been made prior to trial. Moreover, the state repeatedly told the jury that the warden had already determined that the dogs were vicious and it was not the jury's job to decide whether it is fair for the dog warden to make this determination. Thus, although the jury was given the definition of a "vicious" or "dangerous" dog, this element of the crime was removed from their consideration.

{¶15} Previously, this court has stated that "due process of law implies, in its most comprehensive sense, the right of the person affected thereby to be present before the tribunal which pronounces judgment upon a question of life, liberty or property, to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, such is not due process of law." Williams v. Dollison (1980), 62 Ohio St.2d 297, 299, 16 O.O.3d 350, 405 N.E.2d 714. So even assuming that the...