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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Haggblom v. City of Dillingham (08/29/2008) sp-6302

Haggblom v. City of Dillingham (08/29/2008) sp-6302, 191 P3d 991

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

LISA HAGGBLOM, )
) Supreme Court No. S- 12358
Appellant, )
) Superior Court No.
v. ) 3DI-06-00048 CI
)
CITY OF DILLINGHAM, ) O P I N I O N
)
Appellee. ) No. 6302 - August 29, 2008
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Dillingham, Patrick J. McKay, Judge.

          Appearances: Susan Mitchell, Bristol Bay  Law
          Center,   LLC,  Dillingham,  for   Appellant.
          Krista S. Stearns, Boyd, Chandler & Falconer,
          LLP, Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh,  and Carpeneti, Justices.  [Bryner,
          Justice, not participating.]

          CARPENETI, Justice.
          EASTAUGH, Justice, concurring.
          
I.   INTRODUCTION
          A  Dillingham ordinance provides that any  animal  that
bites  a person without provocation shall be deemed vicious  and,
after  quarantine, shall be euthanized.  A Dillingham  dog  owner
whose  dog bit a co-worker without provocation appeals the  citys
order,  affirmed  by  the  superior  court,  for  euthanasia   or
banishment   of   the  animal.   Finding  no  constitutional   or
procedural infirmity, we affirm.

II.  FACTS AND PROCEEDINGS
     A.   Facts
          On  April  12, 2006, Lisa Haggblom took her dog  Muneca
with  her  to  work. She confined Muneca in her office  behind  a
child gate. While Haggblom was working at her desk, her co-worker
Sharron  Simpson approached Haggbloms office and reached down  to
open  the childs gate.  Muneca bit Simpson on the hand.   Neither
Haggblom nor Simpson heard Muneca growl or give any other warning
that  she was about to bite. Haggblom testified that she did  not
see  the  bite occur, and Simpson testified that she did not  see
Muneca until the dog bit her.
          Haggblom  reported  the bite to the  Dillingham  Police
Department,  and  Community  Service Officer  (CSO)  Gary  Peters
investigated  the  incident.   Peters  spoke  with  Simpson   and
observed  two shallow puncture wounds with bruising on her  hand.
He  also  claims  to  have  spoken with Haggblom,  and  that  she
volunteered  information regarding her practices for  controlling
Muneca  when  the  dog  was  with her  in  the  office.  Haggblom
testified that she only signed papers and did not tell CSO Peters
her  version  of  the story.  On the basis of his  investigation,
Peters  deemed  Muneca viciousunder the dog bite ordinance.   Two
days  later  the  city  sent  Haggblom  official  notice  of  the
viciousness determination and, as required by the ordinance,  the
date  set for euthanasia.  The letter, signed by Chief of  Police
Richard J. Thompson, informed Haggblom that she could appeal  the
determination    under    Dillingham   Municipal    Code    (DMC)
07.07.030(D)(3).




     B.   Proceedings
          Haggblom  administratively appealed the  decision,  and
Chief   Thompson   was  appointed  hearing  officer.1    Haggblom
testified  at the hearing.  This was the only evidence  presented
at  the  hearing,  though Chief Thompson had  reviewed  the  bite
report  prior to the hearing.  Haggblom did not ask  whether  she
could  introduce  other witnesses or be represented  by  counsel.
Chief  Thompson upheld the viciousness determination and informed
Haggblom  that Muneca must either be euthanized or banished  from
Dillingham  city limits.  He also told her she  had  a  right  to
appeal his decision.
          Haggblom filed a complaint in superior court seeking  a
temporary restraining order and permanent injunctive relief.  The
court  granted  the  temporary  restraining  order  and  held   a
preliminary  injunction  hearing  on  May  5.   At  the  hearing,
Haggblom  was represented by counsel.  She testified on  her  own
behalf  and  also presented a dog behavior expert.  Simpson,  CSO
Peters,  and  Chief  Thompson also  testified.   On  May  11  the
superior   court  denied  Haggbloms  request  for  a  preliminary
injunction.   In a written opinion the court stated that  it  was
consolidating  the preliminary injunction hearing with  trial  on
the  merits pursuant to Alaska Civil Rule 65(a)(2).  It therefore
denie[d]  this preliminary injunction as a de novo case filed  to
determine the constitutionality of the ordinance.  The court held
that  the  ordinance  was not vague and that  the  administrative
appeal satisfied due process requirements.  The court also  noted
that   to   the  extent  this  decision  may  be  considered   an
administrative  appeal, the court finds substantial  evidence  to
          support the municipalitys decision.  The city moved for final
judgment, and Haggblom opposed the motion and requested continued
discovery  and  a trial on the merits.  The court  entered  final
judgment for the city.
          Haggblom appeals.
III. STANDARD OF REVIEW
          This   court   reviews  the  denial  of  a  preliminary
injunction for abuse of discretion.2  The decision to consolidate
a  preliminary injunction hearing with a trial on the merits  per
Civil  Rule  65(a)(2) is also reviewed for abuse of  discretion.3
The  superior courts interpretation of an ordinance is a question
of  law reviewed de novo.4  We also review constitutional rulings
de novo.5
IV.   DISCUSSION
     A.   Dillingham  Municipal Code 07.07.030  Did  Not  Violate
          Haggbloms Rights to Due Process.
          Haggblom  argues  that DMC 07.07.030 violates  the  due
process  provisions of both the Federal and Alaska  Constitutions
because:  (1) the ordinance does not provide meaningful  process;
and  (2)  the ordinance is unconstitutionally vague.  We  address
these two arguments in turn.
          1.   Dillingham Municipal Code 07.07.030 provides adequate notice
               and an opportunity to be heard.
          1.   At a minimum, due process requires that the parties receive
notice and an opportunity to be heard.6  But due process does not
require  a  full-scale hearing in every situation  to  which  due
process   applies.7    Under  both   the   Federal   and   Alaska
Constitutions,  due  process analysis involves  consideration  of
three  factors: (1) the private interest affected by the official
action; (2) the risk of an erroneous deprivation of such interest
through  the procedures used and the probable value, if  any,  of
additional  or  substitute procedural  safeguards;  and  (3)  the
governments  interest,  including the fiscal  and  administrative
burdens  that  additional  or substitute procedural  requirements
would entail.8
          The   Dillingham  ordinance  lists  the  standards  for
determining whether an animal is vicious,9 and requires that  any
animal  deemed  vicious  be  euthanized.10   The  ordinance  also
provides  that  the  owner of a dog deemed vicious  must  receive
notice: (1) of the planned time of euthanasia of the animal,  (2)
that  the animal will be quarantined upon issuance of the notice,
and   (3)   that  the  owner  may  appeal  the  CSOs  viciousness
determination  before  the city manager or  his  designee.11   It
further provides that the appeal shall be limited to whether: (1)
the animal bit a person or domestic animal; (2) the animal caused
damage   to  property;  (3)  the  bite  or  damage  was   without
provocation;   and  (4)  the  animal[,]  by  its  actions,   gave
indication  that it is able to bite any person or animal  without
provocation.12
          Haggblom    received   notice   of   the    viciousness
determination, the date of euthanasia, and her right  to  appeal.
She  was  not  told that she had a right to counsel or  to  bring
witnesses,  nor  did  she  inquire  into  these  options.    Upon
completion of the administrative appeal, Chief Thompson  informed
Haggblom  that  she  had  a  right to challenge  the  viciousness
determination in superior court.
          The  first  element  considered under  the  Mathews  v.
Eldridge  test is the importance of the private interest affected
by  the  government action.13  Here, Haggbloms  interest  in  the
continuing  health and companionship of her pet is  an  important
one.  While pets are considered property under the law of Alaska,14
we  agree  with the  parties that the emotional bond people  feel
towards their pets elevates this interest above most property.
          The  second element to be considered in the due process
analysis  is  the risk of erroneous deprivation  of  the  private
interest  and  the  probable  value of  additional  procedures.15
Haggblom   argues  that  there  is  a  high  risk  of   erroneous
deprivation  when  parties are not informed of  their  rights  to
bring   witnesses  and  have  counsel.   But  her   argument   is
unpersuasive  because  her case was considered  de  novo  at  the
superior   court  level.16   All  of  the  additional  procedural
safeguards   Haggblom  requests  at  the  administrative   level,
including an impartial decision maker, were available to  her  in
the de novo trial in superior court.
          The third and final element of the due process analysis
is  the  cost  to the city of implementing additional  procedural
safeguards.17  Haggblom is correct that the potential costs to the
city  of  notifying  parties that they  have  a  right  to  bring
witnesses and employ counsel are minimal.  But Haggblom  remained
free  at  all  times  to consult or employ counsel  and  to  call
witnesses.   She was also free to inquire into these  areas.   We
decline  to  impose a Miranda-style duty on the  municipality  to
advise  litigants  of  procedural rights in  city  administrative
hearings.  Moreover, given the opportunity for de novo review  at
the  superior  court  level, the failure by the  city  to  advise
Haggblom  of  her  procedural rights at the administrative  level
does not violate her right to due process.
          Balancing these factors, we conclude that the ordinance
provided Haggblom meaningful process, and that the administrative
hearing  did  not  violate  her  due  process  rights.   Haggblom
received  notice and an opportunity to be heard, and she received
a de novo trial in superior court.
          2.   Dillingham   Municipal  Code  07.07.030   is   not
               unconstitutionally vague.
            Haggblom  challenges  the  constitutionality  of  the
Dillingham  ordinance, claiming that the ordinances  use  of  the
term  provocation renders the ordinance unconstitutionally vague.
A   duly   enacted   municipal  ordinance  is  presumed   to   be
constitutional, and we will construe an ordinance  to  avoid,  to
the extent possible, a finding of unconstitutionality.18
          A  statute  or  ordinance  is unconstitutionally  vague
when:  (1)  it  does not give adequate notice of  the  prohibited
conduct,  or  (2)  its language is so imprecise as  to  encourage
arbitrary enforcement.19  But even an ordinance that fails to give
adequate notice of every type of prohibited conduct may still  be
sustained  (1) if the offense charged falls squarely  within  its
prohibitions  and (2) if a construction may be  placed  upon  the
[ordinance] so that its reach may be reasonably understood in the
future.20
          We  first  look to whether the ordinance gives adequate
notice of the prohibited conduct.  DMC 07.07.030(A) provides that
[a]ny animal who bites a person or animal without provocation, or
          which, by its actions, gives indication that it is able to bite
any  person  or  animal  without  provocation,  shall  be  deemed
vicious.  DMC 07.07.030(D) provides that [v]icious animals  shall
be  euthanized,  as  established  in  Section  7.11.010,  by  the
community  service  officer or agent not  less  than  forty-eight
hours  after  providing actual written notice  to  the  owner  or
keeper of the dog.
          Haggblom  argues  that  the term  provocation,  without
definition,  is so vague as to not give adequate notice  of  what
conduct  is  prohibited.  She points to city council transcripts,
not  presented  below,  that  purportedly  show  council  members
discussing  gray areas in the animal ordinance and the  need  for
definitions of terms such as provocation.  She also discusses the
difference  between  provocation from  a  human  perspective  and
provocation from a dogs perspective.
          Haggbloms  arguments  are unpersuasive.   Whatever  the
outside  bounds of without provocation might be, this case  falls
squarely  within the phrases plain meaning.21  Both Haggblom  and
the bite victim agreed that the victim merely walked to Haggbloms
door  and put her hand on the childs gate.  No reasonable  person
would  conclude that the victim provoked Muneca.  As the superior
court  noted,  it  is  impractical to argue that  a  person  must
anticipate each and every peculiarity of every animal he  or  she
is  exposed  to and, if they guess wrong, they are at  fault  for
provoking the animal.
          A law  may also be deemed vague when it shows potential
for  arbitrary  or  selective enforcement.22   If  a  statute  or
ordinance  is  so  imprecise that it confers  upon   .  .  .  law
enforcement  personnel  undue  discretion  in  determining   what
constitutes the crime, it can be held void for vagueness.23 A law
will  not be invalidated merely because it shows a potential  for
arbitrary  enforcement; there must be evidence of  a  history  of
arbitrary application.24
          Haggblom    contends   that   the    superior    courts
consolidation  of  the  trial  with  the  preliminary  injunction
hearing  prevented  her  from  seeking  evidence  regarding  past
enforcement of the ordinance.  As a preliminary matter, the  city
argues  that  Haggblom  waived this argument  when  her  attorney
stated  at the preliminary injunction hearing that weve  probably
put  in almost all the evidence that would come in in this  case.
We  agree  with Haggblom that the argument was not  waived.   The
attorney  did  not make a definite statement, instead  using  the
qualifying  terms probably and almost. Furthermore, the  attorney
could not have known the weight that would be given to her words,
because the superior court gave no notice that the hearing  might
be  consolidated  with  the trial.  Haggbloms  attorney  made  an
abstract  statement about evidence; she did not ask the court  to
consolidate,  nor did she agree to consolidate.   Thus,  fairness
dictates consideration of Haggbloms argument.
          Haggblom  makes two specific assertions to support  her
claim  that  there is a history of arbitrary enforcement  of  the
ordinance,  neither  of  which  is persuasive.   First,  Haggblom
claims  that  CSO  Peters  conceded  that,  when  enforcing   the
ordinance,  he  arbitrarily decides whether an animal  has  acted
with  provocation.   This misstates Peters actual  statement:  In
response  to  the  question, isnt it true  that  youre  basically
          determining what provocation is[,] based on your own judgment?
Peters answered yes.
          It  is hardly surprising that a law enforcement officer
uses  his judgment in applying the law.  This does not constitute
arbitrary  action,  and acknowledgment that  one  uses  ones  own
judgment  is  hardly a concession of arbitrary action.   We  have
already  determined  that the meaning of without  provocation  is
sufficiently clear in the statute, and that Munecas actions  fall
within  the phrases plain meaning. Further, as we have previously
held,  [e]nforcement of criminal laws of necessity involves  some
degree of discretion.25  This principle certainly applies to  the
enforcement of municipal ordinances.
          Haggblom next asserts that the she was given the option
to  remove  Muneca from within city limits rather than  have  her
euthanized,   and that because this option of banishment  is  not
explicitly  provided  for  in the ordinance,  the  ordinance  was
arbitrarily  enforced.  This action fails, however, to  show  any
arbitrariness   in  determining  what  constitutes   provocation.
Instead,  it  shows only that, after correctly  determining  that
Munecas  actions  fit the description of the prohibited  conduct,
the  city extended to Haggblom a less severe consequence than  is
normally  provided  by the ordinance.  This showing  of  leniency
came   after  a  determination,  on  the  evidence,  that  Muneca
qualified  as a vicious animal under the terms of the  ordinance.
Showing leniency does not demonstrate arbitrary enforcement.
          In  addition  to  these  two  allegations  of  specific
examples  of  arbitrary enforcement in this case,  Haggblom  also
claims  that  if  she had been given an adequate  opportunity  to
conduct  discovery  she would have unearthed  bite  reports  from
previous  years that would have revealed a history  of  arbitrary
enforcement of the ordinance.  As stated above, we will  construe
an ordinance narrowly to avoid a finding of unconstitutionality.26
We  will not hold a statute void for vagueness if the statute has
been shown to have a plainly legitimate sweep.27  In this case, we
have already established that the facts fall within the hard core
of the ordinance,28 and that there was no arbitrary enforcement of
the ordinance.  This conclusion demonstrates the legitimate sweep
of   the  ordinance.  Therefore,  although  we  acknowledge   the
possibility  that, had she been allowed more time,  Haggblom  may
have been able to unearth a case showing arbitrary enforcement of
the statute on the margins, such a finding could not have altered
our conclusion that the ordinance has a plainly legitimate sweep,
and  that the undisputed facts in this case fall within the  core
of  the statute.  We do not need to consider at this time whether
the  ordinance  is capable of, or has been subject to,  arbitrary
enforcement  in cases that fall outside of the legitimate,  solid
core of the ordinance.
          Because the ordinance provides adequate notice  of  the
prohibited   conduct  and  the  language  of  the  ordinance   is
sufficiently  precise,  we conclude that  DMC  07.07.030  is  not
unconstitutionally vague.
     B.    The  Superior  Court Did Not Err in Consolidating  the
Hearing on          Preliminary Injunctive Relief with a Trial on
the Merits.
          Alaska  Civil Rule 65(a)(2), based on Rule  65  of  the
Federal Rules of Civil Procedure, provides that [b]efore or after
          the commencement of the hearing of an application for a
preliminary  injunction, the court may order  the  trial  of  the
action  on  the merits to be advanced and consolidated  with  the
hearing  of the application.  We have not addressed Rule 65(a)(2)
directly, but the United States  Supreme Court has held that  the
parties should normally receive clear and unambiguous notice  [of
the  courts  intent  to consolidate the trial  and  the  hearing]
either before the hearing commences or at a time which will still
afford the parties a full opportunity to present their respective
cases.29
             The  superior  court  here did not  indicate  either
before  or during the preliminary injunction hearing that it  was
consolidating the hearing with a trial on the merits.30  The first
notice to the parties that the proceedings were consolidated  was
in  the courts Order On Preliminary Injunction, in which it  held
that the ordinance was constitutional and the citys decision  was
supported by substantial evidence.
          The   city  argues  that  notwithstanding  the  general
requirement  of  notice,  the courts  discretion  should  not  be
overturned on appeal absent a showing of substantial prejudice in
the  sense  that  a  party was not allow[ed] to present  material
evidence.   This proposition finds support in federal  case  law.
When  a  court  orders  consolidation  during  the  course  of  a
preliminary injunction hearing, a party contesting the  entry  of
final  judgment at the preliminary injunction stage .  .  .  must
demonstrate prejudice as well as surprise.31  In addition, if  it
is  clear  that  consolidation did not detrimentally  affect  the
litigants,  as,  for example, when the parties in fact  presented
their  entire  cases  and no evidence of  significance  would  be
forthcoming  at  trial, then the trial courts consolidation  will
not be considered to have been improper.32
          Courts  will  uphold consolidation of proceedings  when
the  preliminary injunction hearing was sufficiently thorough  to
remove   any  risk  of  prejudice.33   The  sufficiency  of   the
proceedings is determined on a case by case basis.34   Here,  the
superior  court heard arguments from both parties, and  ruled  on
all of the issues before it. Haggblom must show that she suffered
prejudice  because  she was denied a chance to  present  evidence
that would allow her to prevail at trial.35
          Haggblom   asserts  that  she  could   have   presented
additional evidence regarding vagueness had there been a trial on
the  merits.   She  points to a transcript of a  Dillingham  City
Council  meeting in which  concern was expressed  that  important
terms  in  DMC 07.07.030 were not defined.  But the only examples
cited  were of animal activity at the margins of the ordinance.36
She  also  notes  that had there been discovery  she  could  have
requested  records  of  prior enforcement  of  the  ordinance  to
determine  whether it had been enforced unevenly.   Finally,  she
asserts  that  given more time her animal behavior  expert  could
have evaluated Muneca.
          We have already addressed the vagueness question above,
determining  that the term provocation is sufficiently  clear  as
applied  in  this case where, without any warning or provocation,
the  dog  bit a person, leaving two puncture wounds and bruising.
The  opinions  of one unidentified city council  member  and  one
public member to the contrary are unpersuasive and irrelevant  to
          this inquiry. We have also already determined that the ordinance
has  a  legitimate  sweep and that the facts of  this  case  fall
within the solid core of the statute, thus negating the probative
value   of   any   previous  instances  of  allegedly   arbitrary
enforcement  of  the ordinance at the margins. We  are  similarly
unpersuaded that the testimony of an animal behavior  expert  not
present at the time of the bite could have made any difference in
the  trial  courts final conclusions. The ordinance clearly  lays
out  the  requirements that must be met for  a  determination  of
viciousness.  The  testimony of the only  two  witnesses  to  the
incident,  Haggblom  and  Simpson, is  sufficient  to  support  a
conclusion  that  these requirements were met in  this  instance.
Because  Haggblom  has not shown that there  was  any  additional
evidence  of  significance that would have  been  forthcoming  at
trial  that  could have allowed her to prevail, we conclude  that
the  consolidation of the proceedings did not prejudice  Haggblom
and therefore there was no error.

V.   CONCLUSION
          Because  the  ordinance did not violate  Haggbloms  due
process  rights, the city did not violate Haggbloms  due  process
rights in applying the ordinance, and the superior court did  not
err in consolidating the hearing on preliminary injunctive relief
with  the  trial  on  the merits, we AFFIRM the  superior  courts
judgment in all respects.
Eastaugh, Justice, concurring.
          Dillinghams   vicious   animal   ordinance   and    the
administrative   and  lower  court  appellate   proceedings   are
remarkably  problematic.  Because Haggblom has  not  demonstrated
that  these  problems actually prejudiced her attempt to  protect
her  dog, Muneca, I concur in the result reached today, but write
separately  to  call attention to deficiencies in the  ordinance,
its administrative enforcement, and the superior court appeal.
          My  comments  are  not driven by  undue   sympathy  for
Muneca  or  her  owner.  The evidence permits an  objective  fact
finder to find that Muneca bit Simpson without provocation.  Even
though  the  bite was minor,1 the dogs undisputed conduct  places
Muneca   squarely  within  the  class  of  animals   subject   to
Dillinghams legitimate interest in public safety.  It also  makes
Muneca  subject  to appropriate sanctions under any  well-drafted
ordinance.
          But  todays opinion implies that there is nothing wrong
with  Dillinghams ordinance, in the way Dillingham applied it  to
Muneca,  or  in  the  way the superior court  appeal  proceeded.2
These implications require response.
          The  ordinance.   Dillinghams animal control  ordinance
contains sixteen chapters, only one of which is implicated  here.
Chapter  7 deals with nuisance animals,3 dangerous animals,4  and
vicious animals.5  Muneca was found to be a vicious animal.   The
ordinance  does  not define vicious6 as such, but  classifies  as
vicious  any  animal  that  bites  a  person  or  animal  without
provocation  (or gives an indication it is able to  bite  without
provocation).7  Vicious animals are to be euthanized within forty-
eight  hours,  following any necessary quarantine  period.8   The
issues  at  any  appeal hearing for an animal that allegedly  bit
without  provocation are strictly limited to whether  the  animal
bit  a  person or another animal and whether the bite was without
provocation.9
          Its  length  may imply that Dillinghams animal  control
ordinance  is  comprehensive.  But  comparison  with  the  animal
control ordinance we recently reviewed in West v. Municipality of
Anchorage10  reveals  that  Dillinghams  ordinance  provides   an
inflexible  and arbitrary process for dealing with  animals  that
bite without provocation.   The Anchorage ordinance contains five
behavioral classifications, three of which distinguish between an
animal  that  bites, an animal that inflicts an aggressive  bite,
and  an  animal that causes serious physical injury.11   It  also
lists   eight   types  of  exceptions.12   And  in  addition   to
euthanasia, it describes a broad range of lesser restrictions for
three  of  the  classification levels that presuppose  unexcepted
biting.13
          In comparison, Dillingham treats all animals inflicting
unprovoked  bites  the same, classifying them as  vicious.14   In
theory    it    requires   that   they   all   be   euthanized.15
Dillinghams   vicious  animal  ordinance   has   two   particular
deficiencies.
          First,   it   provides  no  functional  standards   for
distinguishing  vicious  animals from non-vicious  animals.   The
ordinance  does not distinguish between the horse that  playfully
or  mistakenly nips someone giving it a carrot and the  dog  that
escapes  its  yard  and mauls a child.  It does  not  distinguish
          between animals indisputably vicious and those indisputably not.
It  contains  no standards that tell enforcers how to  administer
the  ordinance  in  practice; it likewise  does  not  tell  those
subject  to enforcement how to determine whether their animal  is
vicious  and  exposed to euthanasia.  This means owners  have  no
announced standards to guide them in deciding whether and how  to
dispute  a  viciousness  classification and  oppose  the  animals
destruction.   Likewise,  the  ordinance  contains  no  standards
distinguishing  those  animals subject to  the  citys  legitimate
interest in safety from those that are not. It similarly contains
no  standards  distinguishing those animals  requiring  the  most
severe  sanction from those for which destruction is not  needed,
and  for  which  destruction  is not a  rational  or  permissible
governmental response.        An animal whose bite is  unprovoked
is  vicious, per DMC 07.07.030(A).  But there is no standard  for
determining  provocation.  Is throwing  a  stone  or  pulling  an
animals tail provocation?  Is a sudden move to pat the head of  a
growling  dog  or  a skittish horse?  Is teasing  a  dog  with  a
biscuit  or  a horse with a carrot?  Does it matter  whether  the
victim  is a child or an adult?  Provocation sufficient to excuse
a  minor  nip  might  not  be sufficient  to  excuse  a  mauling.
Determining  whether  there was provocation may  be  particularly
difficult  if one animal bites another, as when a chance  meeting
escalates from mutual sniffing to mutual biting.
          Second,  the  ordinance fails to take into account  the
severity  of  the  bite.  There is no  rational  reason  why  the
ordinance  requires the same penalty  euthanasia    for  the  dog
that nips and the dog that mauls.
          As  we  will see, there is evidence the city does  draw
distinctions when it enforces the ordinance: its officers  decide
whether  an  animal is vicious and whether a sanction other  than
death  is  possible.   But  they  do  so  without  any  published
standards  to be found in the ordinance and without any  rational
standards explained in this case.
          Haggblom  challenges the ordinance as vague.  I  agree,
to  the  extent  viciousness depends on whether an  animal  acted
without  provocation.  But the ordinance is not otherwise  vague:
it is specific in describing the animals to which it applies (all
those  that bite or might bite); it treats all animals that  bite
the   same.   This  sweeping  specificity  does  not   save   its
impermissible  scope.   Even  if  they  are  unprovoked,  it   is
arbitrary to treat all biting animals the same.
          Enforcement.     Haggblom   complains   of    arbitrary
enforcement;  she unsuccessfully sought to conduct  discovery  on
the topic.
          Her  arbitrary enforcement complaint seems  well-taken.
The  city, in enforcing the ordinance, appears to distinguish  on
an ad hoc basis between animals its officers consider vicious and
those  they  do not.16  The latter are apparently  not  cited  at
all.17  The former are theoretically subject to the only sanction
the  ordinance permits: death.  Despite this ostensible  lack  of
discretion  in  choosing a remedy, there is evidence  enforcement
officers  do  exercise  discretion as to sanction.   They  decide
whether death is required, or whether to allow the owner to  ship
the  animal out of the city.  In choosing to apply the  ordinance
to  some animals that have bitten a person and not to others, the
          city acts arbitrarily,18 because the ordinance confers no
enforcement  discretion to the city and contains no standards  by
which  enforcing  officers can make reasoned decisions  to  apply
sanctions to one animal that has bitten and not to another.19
          Perhaps  in  practice  city  officers  have  accurately
distinguished between animals that need to be regulated and those
that  dont.  And perhaps they have also accurately decided  which
animals  might,  like thieves in Nineteenth-Century  England,  be
offered  transportation to distant shores as  an  alternative  to
death.20    But   there   is   no   assurance   the   enforcement
classification  for  any  given  animal  is  valid,  because  the
ordinance  contains no standards for determining the validity  of
the  classification.  As a result, enforcement  officers,  animal
owners,  those trying to decide whether to dispute administrative
enforcement,   those  appealing  administrative  decisions,   and
appellate  judges are all without guidance.  Even  assuming  that
the  only  rights  implicated  are the  owners  property  rights,
arbitrary interference with those rights is likely.21  It  is  no
consolation that some dogs may, by meeting unspecified  criteria,
avoid  death if they are offered blue tickets out of the  city.22
Such  an offer may spare an animals life, but makes it impossible
for the owner who remains in Dillingham to exercise most property
rights, let alone any arguably more-important rights arising  out
of the animals companionship.
          It  is  also  probable some animals will be  euthanized
that   could,  if  their  owners  appealed,  satisfy  the   citys
unpublished  standards for banishment: the absence  of  published
standards makes it hard for an owner to decide rationally whether
the  cost  of defending the animal is worth the risk the  defense
will be fruitless.  The absence of standards particularly impedes
those  owners financially or intellectually least able to  defend
their  animals or find them new and distant homes if the  defense
fails.
          As  it  turns  out, the danger of arbitrary enforcement
does  not  help  Haggblom:  there is no reasonable  dispute  that
Muneca is validly subject to regulation; the evidence permitted a
finding  that  Muneca was not provoked and Haggblom  produced  no
contrary evidence; Haggblom has not argued that the bite was  not
serious  enough  to justify euthanasia or banishment;  and  Chief
Thompsons  offer of a blue ticket out of Dillingham  removes  the
threat  of  the  most  serious possible consequence,  unjustified
euthanasia.   Nor has Haggblom asserted that she  is  financially
unable to defend Muneca or save her life by shipping her away.
          Appeal.    Haggblom argues that the procedure  followed
in  her superior court appeal deprived her of the opportunity  to
conduct   discovery  and  present  expert  testimony.    Haggblom
correctly   asserts  that  the  superior  court   converted   the
preliminary  injunction hearing into a de novo  trial  on  appeal
without  giving advance notice of its intention.  That  procedure
was  problematic  because consolidation under Alaska  Civil  Rule
65(a)(2) must be tempered by the due process principle that  fair
notice and an opportunity to be heard must be given the litigants
before the disposition of a case on the merits.23
          In  my  view,  it  was error to treat  the  preliminary
injunction hearing as a trial without giving prior notice of that
intention.  But Haggblom has not demonstrated that this error was
          prejudicial.  Her lawyer stated at the hearing that  weve
probably put in almost all of the evidence that would come in  in
this  case  and  if  were  -  - it was listed  as  a  preliminary
injunction  hearing.   We would ask for a preliminary  injunction
and  eventually well be asking that the ordinance be  set  aside.
And  she  did not seek reconsideration with a proffer of relevant
evidence.  She was not obliged to seek reconsideration to reserve
the  issue,  but she was obliged to let the superior  court  know
that  she  objected to resolving the case on the  merits  without
being  able  to  offer  relevant evidence.   Had  she  made  that
objection,  accompanied  by  either  an  offer  of  proof  or  an
explanation how discovery would be relevant to Munecas case,  the
error  here  would have required reversal.  But absent  any  such
objection,  we  have  no basis for holding that  this  procedural
error harmed her.
          Expert  evidence.  Todays opinion states that no animal
behavior expert who was not present when Muneca bit Simpson could
have  offered evidence that would have made a difference  in  the
trial  courts  conclusions.24   Some  readers  might  read   this
statement  to  express an opinion that an expert could  offer  no
relevant information.  But an expert in animal behavior  who  was
not present might, by responding to hypothetical questions, offer
relevant  opinions  regarding  the animals  alleged  viciousness.
That  topic would also be relevant to a challenge to the validity
of  the ordinance on the theory it arbitrarily treats non-vicious
animals   as   vicious.   An  expert  could  also  discuss   what
circumstances  would  amount  to provocation  for  a  non-vicious
animal.   And  after examining the animal, an expert  could  also
offer opinions about its potential for unwarranted and unprovoked
biting,  evidence tending to show whether the bite  was  in  fact
provoked.   This evidence would also be relevant to a  contention
euthanasia  is  not a rational sanction for the  subject  animal.
Haggblom  did  not offer the evidence for any of these  purposes,
but that does not mean an expert in such a case could say nothing
that might affect the outcome.
          Conclusion.   The undoubted legitimacy  of  Dillinghams
interest  in  preventing  unprovoked  dog  bites  is  subject  to
requirements of fair notice and an opportunity to be heard.   The
deficiencies  in the ordinance, its enforcement, and  the  appeal
would require reversal if they were not deemed harmless.

_______________________________
     1     DMC 07.07.030(D) provides for the City Manager or  his
designee to hear  euthanasia appeals.

     2     Smallwood v. Cent. Peninsula Gen. Hosp., 151 P.3d 319,
322 (Alaska 2006).

     3    See D.L. Cromwell Invs., Inc. v. NASD Regulation, Inc.,
279 F.3d 155, 158 (2d Cir. 2002).

     4     See State, Dept of Revenue v. Andrade, 23 P.3d 58,  65
(Alaska 2001).

     5    Id.

     6    Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d
1018,  1026  (Alaska 2005) (quoting Hickel v. Halford,  872  P.2d
171, 179-80 (Alaska 1994)).

     7      Id.  (quoting  Frontier  Saloon,  Inc.  v.  Alcoholic
Beverage Control Bd., 524 P.2d 657, 661 (Alaska 1974)).

     8     Id.  (noting that this balancing test was adopted from
federal due process test articulated in Mathews v. Eldridge,  424
U.S. 319, 335 (1976)).

     9    DMC 07.07.030(A) provides in relevant part:

          Any  animal who bites a person . . .  without
          provocation . . . shall be deemed vicious.
          
     10     We  note that, according to the Alaska Department  of
Health  and  Social  Services, Division  of  Public  Health,  the
incidence  of  dog bite injury deaths in Alaska was  much  higher
than  that  of  the  nation at 123 versus  7.1  per  100  million
population per year, respectively.  Alaska Dept of Health &  Soc.
Servs.,  State  of Alaska Epidemiology Bull. No. 35,  Deaths  and
Hospitalizations  from  Dog  Bite  Injuries   Alaska,   1991-2002
(2007).  The department also reported that Alaska hospitalization
rates . . .  were higher than in other studies . . . .  Id.  From
1991-2002,  nine  deaths and 288 hospitalizations  were  reported
from  dog  bites  in  Alaska.  Id.   For  the  same  period,  the
Associated Press reported that Alaska led the nation in dog  bite
injury  deaths and hospitalizations.  Alaska Leads in Dog  Bites,
Anchorage Daily News, Jan. 21, 2008, at A9.

     11    DMC 07.07.030(D) (2003).

     12    DMC 07.07.030(E) (2003).

     13    Mathews, 424 U.S. at 335.

     14    Richardson v. Fairbanks N. Star Borough, 705 P.2d 454,
456  (Alaska  1985)  (noting  that legally  dogs  are  considered
personal property).

     15    Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d
1018, 1026 (Alaska 2005).

     16     Haggbloms  due  process argument considers  only  the
administrative hearing offered under DMC 07.07.030, and does  not
address  any  alleged procedural errors from the  superior  court
hearing.

     17    Laidlaw, 118 P.3d at 1026.

     18     Treacy v. Municipality of Anchorage, 91 P.3d 252, 260
(Alaska 2004).

     19    R.R. v. State, 919 P.2d 754, 758 (Alaska 1996) (citing
Summers  v.  Anchorage, 589 P.2d 863, 866-67 (Alaska  1979)).   A
third  factor,  not  relevant to the case at hand,  applies  only
where  the statute or ordinance in question is alleged  to  chill
the exercise of First Amendment rights.  Id.

     20     Summers, 589 P.2d at 867-68 (quoting Larson v. State,
564  P.2d 365, 372 (Alaska 1977)) (holding that statute  was  not
unconstitutionally  vague when appellants  behavior  fell  within
hard  core  of  statute  so that they had  notice  of  prohibited
behavior,  and when appellants presented no evidence of  previous
arbitrary enforcement of statute).

     21     See id. at 868 (It is sufficient to note that even if
the  outermost  boundaries  of (the challenged  statute)  may  be
imprecise, any such uncertainty has little relevance here,  where
appellants  conduct falls squarely within the hard  core  of  the
statutes proscriptions.  (quoting Broadrick v. Oklahoma, 413 U.S.
601, 608 (1973))).

     22     Id.;  see also Levshakoff v. State, 565 P.2d 504, 507
(Alaska 1977) (holding that appellant could not assert claim that
statute  did  not give fair notice of prohibited conduct  because
his   conduct   fell  within  hard  core  of  the  statute,   but
nevertheless  considering  his  argument  that  the  statute  was
capable of arbitrary enforcement).

     23    Levshakoff, 565 P.2d at 507.

     24    Id. at 507-08.

     25    Larson, 564 P.2d at 372.

     26     Treacy v. Municipality of Anchorage, 91 P.3d 252, 260
n.14 (Alaska 2004).

     27     See id. (holding that  juvenile curfew ordinance  was
not void for vagueness because despite any occasional problems it
might  create in its application to specific cases, the ordinance
has a plainly legitimate sweep).

     28     See  Summers v. Anchorage, 589 P.2d 863, 868  (Alaska
1979).

     29     Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)
(alteration  in  original) (quoting Pughsley v. 3750  Lake  Shore
Drive Coop. Bldg., 463 F.2d 1055, 1057 (7th Cir. 1972)).

     30     During the hearing, the court and parties referred to
the proceeding as a preliminary injunction hearing.

     31     11  Charles Alan Wright, Arthur R. Miller & Mary  Kay
Kane, Federal Practice and Procedure  2950 (2d ed. 1995).

     32    Id.

     33     See  AM Gen. Corp. v. DaimlerChrysler Corp.,  246  F.
Supp.  2d  1030, 1033-35 (N.D. Ind. 2003) (holding that  findings
and conclusions of law made at preliminary injunction hearing can
have preclusive effect).

     34     Id.  (holding  that sufficiency of  proceedings  will
depend on specific circumstances of hearing at issue).

     35    See Wright, Miller & Kane, supra note 31.

     36     One  speaker expressed concern that her dog, a  large
Malamute, might inadvertently knock a child over while trying  to
show  affection  for the child.  One council member  agreed  that
some of these definitions probably should be defined.

1     CSO  Gary  Peters described the bite as  a  small  puncture
wound  just above the middle finger knuckle that just  broke  the
skin,  and  there  was  some bruising  there  too.   CSO  Peterss
incident narrative states that [he] asked if [Simpson] was  going
to  seek  medical assistan[ce] [and Simpson] said that she  didnt
think it was that bad.

     2    See Slip Op. at 8-11, 12-15.

     3    Dillingham Municipal Code (DMC) 07.07.010 (2006).

     4    DMC 07.07.020.

     5    DMC 07.07.030 provides in part:

          A.    Any animal who bites a person or animal
          without   provocation,  or  which,   by   its
          actions, gives indication that it is able  to
          bite    any   person   or   animal    without
          provocation, shall be deemed vicious.
          B.    Any animal who bites a person or animal
          without    provocation   and   is   currently
          vaccinated,  shall be immediately quarantined
          for  no less than ten days at the expense  of
          the  owner.   A  date of euthanasia  for  the
          animal  shall be scheduled for no  less  than
          forty-eight   hours   after   completion   of
          quarantine.
          C.             Any  animal who
                         bites  a person
                         or       animal
                         without
                         provocation and
                         is
                         unvaccinated,
                         shall        be
                         immediately
                         impounded   and
                         quarantined for
                         no   less  than
                         ten days at the
                         expense of  the
                         owner        or
                         keeper, and the
                         owner or keeper
                         may be found in
                         violation    of
                         Chapter   7.13,
                         subject to fees
                         and/or    fines
                         established
                         within Sections
                         7.16.010    and
                         7.16.020,   and
                         to  comply with
                         Chapter   7.14.
                         Before
                         completion   of
                         quarantine, the
                         owner or keeper
                         will be given a
                         written  notice
                         of  the date of
                         euthanasia.   A
                         date         of
                         euthanasia
                         shall        be
                         scheduled   for
                         no   less  than
                         forty-eight
                         hours     after
                         completion   of
                         quarantine.
          D.    Vicious animals shall be euthanized, as
          established  in  Section  7.11.010,  by   the
          community service officer or agent  not  less
          than forty-eight hours after providing actual
          written notice to the owner or keeper of  the
          dog, by hand delivery to the owner or keeper,
          or  by posting at the last known residence of
          the  owner  or  keeper.   Such  notice  shall
          advise the owner or keeper of the following:
          1.    Planned  time of euthanization  of  the
          animal;
          2.   That the animal will be impounded and/or
          quarantined  immediately  upon  issuance   of
          notice;
          3.     That  the  owner  or  keeper  has   an
          opportunity  to  be  heard  before  the  city
          manager,   or  the  city  managers  designee,
          should  they  wish  to appeal  the  community
          service officers or agents determination that
          the animal is vicious.
          
     6     DMC  07.02.010 defines nuisance animal and  more  than
thirty  other words or terms, but not dangerous animal or vicious
animal.

     7    DMC 07.07.030(A).

     8    DMC 07.07.030(B)-(C).

     9    DMC 07.07.030(E).  Subsection E states:

          The  issues  to be considered at  any  appeal
          hearing shall be limited to the following:
               1.   Whether the animal bit a person  or
                    domestic animal;
               2.   Whether the animal caused damage to
                    property;
               3.   Whether  the  bite  or  damage  was
                    without provocation;
               4.   Whether  the animal by its actions,
                    gave indication that it is able  to
                    bite  any person or animal  without
                    provocation.
                    
     10   West v. Municipality of Anchorage, 174 P.3d 224 (Alaska
2007)  (discussing Anchorage Municipal Code (AMC) 17.40.010-.100,
which provides five levels of animal behavior classification  and
corresponding   animal   restrictions   ranging   from   leashing
requirements  to  euthanasia);  AMC 17.40.020(A)(4)  (Level  four
behavior  is  established if any of the following  occur:  a.  An
unrestrained  animal  inflicts  an  aggressive  bite  or   causes
physical injury to any human; or b. An unrestrained animal  kills
a domestic animal that is restrained; or c. An animal, regardless
of whether it is restrained, for the second time injures or kills
a domestic animal.).

     11   AMC 17.40.020(A)(2)-(5).

     12   AMC 17.40.020(B).

     13   AMC 17.40.040.

     14   DMC 07.07.030(A).

     15   DMC 07.07.030(B)-(C).

16    CSO  Peters  testified  that his  animal  control  training
included  some ride-alongs with the sergeants showing [him]  what
to  do  and going over the city ordinances and reading  them  and
that  he  attended  National Animal Control Association  classes.
Because   DMC   07.07.030   does  not   contain   standards   for
administration, effective application of this training to  animal
behavior classification seems impossible.

     17    DMC  07.07.030(C)-(D) (owner of vicious animal  to  be
provided  notice of euthanasia date); DMC 07.07.020(D) (community
service  officer  may  issue citation  or  warning  to  owner  of
dangerous animal).

18    Under  DMC  07.07.030  an animal  that  is  deemed  vicious
must  be  euthanized.  But it appears that Chief Richard Thompson
sometimes  offers  owners  alternatives  to  euthanasia.    Chief
Thompson  testified in superior court that Muneca  would  not  be
euthanized if Haggblom shipped Muneca out of Dillingham:

          Q    .  .  .  Did  you talk to her about  the
               option of having the dog shipped out  of
               Dillingham?
          A    Yes, maam.
          Q    And  in  your mind, that was a  possible
               option for [Muneca] as a result of your.
               . . .
          A    That was one possible option, yes.
               
Chief Thompson did not give a reason for deviating from the  only
sanction  required or permitted by the ordinance and he  did  not
describe what other possible options to euthanasia are available.

     19    Ending this exercise of discretion will not  save  the
ordinance,  which  is arbitrary in requiring euthanasia  for  all
animals that inflict unprovoked bites.

     20    See  generally  Schick v. Reed, 419 U.S.  256,  261-62
(1974)  (discussing banishment as punishment);  see  also  United
States  v.  Blake,  89  F. Supp. 2d 328, 341-43  (E.D.N.Y.  2000)
(providing  historical discussion of criminal rehabilitation  and
noting England banished prisoners to the American Colonies and  .
.  .  Australia);  Robert Hughes, The Fatal Shore:  The  Epic  of
Australias Founding (1987).

     21    See generally Susan J. Hankin, Not a Living Room Sofa:
Changing the Legal Status of Companion Animals, 4 Rutgers J.L.  &
Pub.  Poly  314,  343  (2007) (noting courts have  actually  been
willing  to  entertain the idea that animals are in  a  different
legal category from inanimate property).

     22    See  generally  Mike Doogan, How To Speak  Alaskan  14
(BLUE  TICKET  -  A  one way passage out of  Alaska,  awarded  in
earlier  times  to suspected criminals and other undesirables  by
the authorities.).

     23    11  Charles Alan Wright, Arthur R. Miller &  Mary  Kay
Kane,  Federal Practice and Procedure  2950 (2d ed. 1995) (citing
Pughsley v. 3750 Lake Shore Drive Coop. Bldg., 463 F.2d 1055 (7th
Cir.  1972)).  This treatise suggests that  [a]lthough each  case
will   depend  on  its  own  circumstances,  the  ten-day  notice
requirement  of  Rule 56 for summary judgment  motions  might  be
taken  as  suggestive of the minimum amount of time necessary  to
permit  a  litigant  to prepare a showing upon  which  the  final
outcome of the case may depend.  Id.

     24   Slip Op. at 15.

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