Town of Baldwin v. Carter

• Decision Date: 08 April 2002
• Parties: TOWN OF BALDWIN v. Kari CARTER.
• Court: Maine Supreme Court

794 A.2d 62

2002 ME 52

TOWN OF BALDWIN v. Kari CARTER.

Supreme Judicial Court of Maine.

Argued: October 11, 2001.

Decided: April 8, 2002.

David A. Lourie, (orally), Cape Elizabeth, Ronald J. Graff, Steeves & Graff, Standish, for plaintiff.

John C. Bannon, (orally), Timothy H. Boulette, Murray Plumb & Murray, Portland, for defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.

CLIFFORD, J.

[¶ 1] Kari Carter appeals from a judgment entered in the District Court (Bridgton, Powers, J.) in favor of the Town of Baldwin, concluding that Carter violated the Town's Barking Dog Ordinance. Carter contends that the ordinance is unconstitutionally vague because it fails to provide sufficient notice to dog owners about the degree of barking that constitutes a violation. We are unpersuaded by Carter's contention and affirm the judgment.

[¶ 2] The facts are not in dispute. The Town enacted its Barking Dog Ordinance in 1997, which provides as follows:

No owner or keeper of any dog kept within the legal limits of the Town of Baldwin shall allow such dog to unnecessarily annoy or disturb any person by continued or repeated barking, howling, or other loud or unusual noises anytime day or night.

Baldwin, Me., Barking Dog Ordinance 1 (Mar. 8, 1997).¹

[¶ 3] Carter held a valid license from the Town to operate a kennel and had sixteen dogs on her property. The dogs were kept in an outdoor caged kennel as well as an interior space. The Town received several complaints about Carter's dogs and sent Carter a notice of complaint by certified letter in July of 2000 stating that the Town would take action if the continual barking was not corrected within ten days. Neighbors, who resided 300 to 800 feet away from Carter's home, made additional complaints against Carter for continual dog barking in violation of the ordinance in September and October of 2000. One neighbor submitted a thirty minute long video tape on which dog noises coming from Carter's kennel about 800 feet away could be heard inside the neighbor's house.

[¶ 4] After receiving a telephone call from a neighbor complaining about Carter's barking dogs, whose barking he could hear over the telephone, the Town's animal control officer investigated and concluded that a violation had occurred. The Town brought a complaint pursuant to M.R. Civ. P. 80H alleging that Carter violated the Barking Dog Ordinance.

[¶ 5] At her trial, Carter argued that she did not have proper notice of the charges against her because the ordinance is unconstitutionally vague. The court rejected her contention and held that the ordinance "places an owner sufficiently on notice that significant, ongoing noise may be a violation of the statute if it is unnecessary noise and further disturbs or annoys someone at any time." The court concluded that intermittent or short term dog noises do not constitute violations of the ordinance and the plain meaning of "continued or repeated" is understandable by a dog owner of reasonable intelligence. The court further reasoned that the use of the word "unnecessary" sufficiently limited the ordinance to situations where the barking was not necessary, such as "a natural response to a particular stimulus, or for instance, a warning to occupants of a burning building."

[¶ 6] After deciding that the ordinance was not vague, the court found that "the barking went on for a period of minutes to a period of hours" on various occasions. It concluded that Carter kept dogs which barked and howled unnecessarily for continual and repeated durations, and disturbed and annoyed neighbors on numerous occasions after Carter had been given written notice to cease the unlawful barking. The court fined her $50 and awarded the Town $3,524.33 in attorney fees. This appeal by Carter followed.

[¶ 7] Carter challenges the constitutionality of the Town's Barking Dog Ordinance on the grounds of vagueness. Although she does not assert that the ordinance is unconstitutionally vague as applied to her, she contends that the ordinance is impermissibly vague on its face because there are no objective standards for determining whether a dog's barking is "unnecessary" or "continued or repeated" or "annoys or disturbs" a person.²

[¶ 8] A facial challenge in this context means that Carter is claiming that the ordinance is "invalid in toto — and therefore incapable of any valid application." Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). When reviewing a facial challenge to an ordinance, if the ordinance implicates no constitutionally protected fundamental liberties, such as freedom of speech or religion, courts "should uphold the challenge only if the enactment is impermissibly vague in all of its applications." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Because none of Carter's fundamental liberties are implicated by this ordinance, we review the constitutionality of the ordinance to see if it can apply under any set of circumstances.³ See id. at 495-97, 102 S.Ct. 1186 (if the ordinance can be properly applied to anyone, even if only in one particular, discrete situation, then the ordinance is constitutional). We conduct this limited review de novo. See State v. Weeks, 2000 ME 171, ¶¶ 7-10, 761 A.2d 44, 46-47

(considering a vagueness challenge without deference to the conclusion of the trial court).

[¶ 9] "A statute is presumed to be constitutional and the person challenging the constitutionality has the burden of establishing its infirmity." Kenny v. Dep't of Human Servs., 1999 ME 158, ¶ 7, 740 A.2d 560, 563. If at all possible, we will construe the statute to preserve its constitutionality. Maine Milk Producers, Inc., v. Comm'r of Agric., 483 A.2d 1213, 1218 (Me.1984); see also State v. Cropley, 544 A.2d 302, 304 (Me.1988)

("this Court is bound to avoid an unconstitutional interpretation of a statute if a reasonable interpretation of the statute would satisfy constitutional requirements") (quoting Bossie v. State, 488 A.2d 477, 479 (Me.1985)). In order to succeed in her appeal, Carter must prove that "no logical construction can be given to the words of [the Barking Dog Ordinance] that will make it constitutional." Maine Milk Producers, Inc.,

483 A.2d at 1218.

[¶ 10] Concepts of due process flowing from both the Fourteenth Amendment of the United States Constitution and Article I, § 6-A, of the Maine Constitution, require that those subject to sanction by law be given "fair notice of the standard of conduct to which they can be held accountable." Weeks, ¶ 7, 761 A.2d at 46 (quoting United States v. Robinson, 137 F.3d 652, 653 (1st Cir.1998)); Maine Real Estate Comm'n v. Kelby, 360 A.2d 528, 531 (Me.1976) (applying void-for-vagueness doctrine to civil regulation of conduct). An ordinance is improperly vague "when its language either forbids or requires the doing of an act in terms so vague that people of common intelligence must guess at its meaning," City of Portland v. Jacobsky, 496 A.2d 646, 649 (Me.1985), or if it authorizes or encourages arbitrary and discriminatory enforcement, Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

[¶ 11] We find persuasive the reasoning of the Court of Appeals of Arizona in State v. Singer, 190 Ariz. 48, 945 P.2d 359 (Ct.App.1997). In Singer, the defendant claimed that a dog barking ordinance providing that "[n]o person shall keep a dog within the City limits which is in the habit of barking or howling or disturbing the peace and quiet of any person within the City" was unconstitutionally vague because it did not provide objective standards for determining if a violation had occurred, id. at 361-62 (emphasis added), the same argument that Carter makes in this case. The Singer court gave the ordinance a reasonable construction that made it constitutional. Id. at 362. The court found inherent in the phrase "any person" a "presumption that such person be a reasonable one." Id. Construing the ordinance in this manner rendered it constitutional, because the offensive barking was now capable of objective measurement. Id. See also Hernandez v. Richard, 772 So.2d 994, 997 (La.Ct.App.2000)

(construing noise ordinance to proscribe only objectively unreasonable noises to overcome constitutional infirmity of being vague); State v. Friedman, 304 N.J.Super. 1, 697 A.2d 947, 950 (1997) (upholding a noise ordinance against a facially unconstitutional vagueness challenge, by interpreting the statute as proscribing only objectively unreasonable noises).⁴

[¶ 12] As in Singer, the Town's ordinance in this case can be construed to be constitutional by importing a reasonable person standard into its language. See State v. Davenport, 326 A.2d 1, 5-6 (Me.1974)

("[c]ourts must construe legislative enactments so as to avoid a danger of unconstitutionality"). We interpret the Town's ordinance in this case to mean that continuous or repeated dog barking that is unnecessary is actionable only if it is unreasonable. The ordinance only proscribes barking that disturbs the comfort of ordinary people to an unreasonable extent. The inquiry must determine whether the noise would disturb a person of ordinary sensibilities; that is, the barking, or howling, or other loud or unusual noise must be annoying or disturbing to a reasonable person, not merely to some supersensitive or hypercritical individual.

[¶ 13] "Reasonableness" is a well defined concept under the common law. Tri-State Rubbish, Inc., 634 A.2d at 1287 ("`Reasonable' compliance is not an unconstitutionally vague concept. If it were, most tort law doctrines and a host of other legal standards would be invalid — the reasonable person, beyond reasonable doubt, reasonable good faith efforts, etc."); State v. Sylvain, 344 A.2d 407, 409 (Me.1975) (holding that statute was not impermissibly vague because its proscription against objectionable and...