Court Upholds Youngstown ‘Vicious Dog’ Ordinance
2008-1460. Youngstown v. Traylor, Slip Opinion No. 2009-Ohio-4184.
Mahoning App. No. 07 MA 102, 2008-Ohio-2971. Judgment reversed, and judgment of the trial court reinstated.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-4184.pdf 
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(Aug. 26, 2009) The Supreme Court of Ohio today upheld as constitutional a Youngstown city ordinance that requires vicious dogs to be confined and requires the state to prove at trial that a defendant’s dog is vicious or dangerous. The Court’s 5-2 majority opinion, authored by Justice Evelyn Lundberg Stratton, reversed a decision of the 7th District Court of Appeals holding that the ordinance violated a dog owner’s right to due process of law and was therefore unenforceable.
The case arose from an April 2007 incident in which David Roch of Youngstown and his small dog were attacked while walking in a city park by two unleashed and unaccompanied Italian Mastiff/Cane Corso dogs, a male weighing approximately 170-180 pounds and a slightly smaller female. Roch was bitten on the hand and wrist, and his dog suffered several bites before they were able to retreat to a residential garage bordering the park. Police officers summoned to the scene subsequently shot and killed both of the attacking dogs when they advanced toward the officers in what was perceived to be an aggressive manner.
A follow-up investigation determined that one of the attacking dogs was owned by a nearby resident, Jammie Traylor, and the other was temporarily present at Traylor’s home for breeding purposes at the time of the attack. Traylor was charged in Youngstown Municipal Court with two violations of a city ordinance, YCO 505.19(b), which prohibits the owner or person having care of a “vicious” dog from permitting the dog “to go beyond the premises of such person unless such dog is securely leashed or otherwise securely restrained.” The ordinance defines a “vicious” dog as a) one “with a propensity, tendency or disposition to attack, to cause injury to or otherwise endanger the safety of human beings or other domestic animals;” or b) “(a)ny dog which attacks a human being or another domestic animal without provocation.”
Traylor entered a pretrial motion to dismiss the charges on the basis that the Youngstown ordinance was unconstitutional under the Supreme Court of Ohio’s 2004 ruling in State v. Cowan. In Cowan, the Court held that provisions of the state’s vicious dog statute, R.C. 955.22, violated a dog owner’s right to due process by allowing a dog warden to unilaterally and without a hearing classify a dog as “vicious,” and thereby impose on the dog’s owner several statutory duties, including a duty to confine the dog in a specified manner on the owner’s property and to purchase liability insurance to protect others who may be attacked by the dog.
The trial court denied Traylor’s motion to dismiss. A jury subsequently found Traylor guilty on one count and convicted him of a lesser included offense on the other count. Traylor was fined, sentenced to 90 days in jail followed by a two-year term of probation, ordered to pay restitution to Roch, and ordered to own “nothing bigger than a Chihuahua” as a condition of probation.
Traylor appealed. The 7th District Court of Appeals vacated his convictions and sentence, holding that the Youngstown ordinance under which Traylor was charged is unconstitutional pursuant to the Supreme Court’s decision in Cowan. The Youngstown city prosecutor’s office sought and was granted Supreme Court review of the 7th District’s ruling.
Writing for the majority in today’s decision, Justice Stratton pointed to Toledo v. Tellings (2007),
a Supreme Court case decided since Cowan, in which this Court upheld a Toledo city ordinance and two sections of state law that limited ownership of pit bulls to one in each household, and required the owner of a pit bull or pit bull mixed breed dog to obtain liability insurance. “In upholding the three provisions, this court concluded that the state and the city of Toledo possess the constitutional authority to exercise police powers that are rationally related to a legitimate interest in public health, safety, morals, or general welfare,” wrote Justice Stratton. “We determined that the evidence proved that pit bulls cause more damage than other dogs when they attack, cause more fatalities in Ohio than other dogs, and cause Toledo police officers to fire their weapons more often than do other breeds. Thus, we held that the state of Ohio and the city of Toledo had a legitimate interest in protecting citizens from the dangers associated with pit bulls and that R.C. 955.11(A)(4)(a)(iii) and 955.22 and Toledo Municipal Code 505.14 are rationally related to that interest. Therefore, these provisions are constitutional.”
“The court of appeals held that Tellings was inapplicable to this case because the case at bar does not involve pit bulls and because YCO 505.19 does not contain a classification of this breed as a definition of ‘vicious,’” wrote Justice Stratton. “Rather, the court of appeals found the facts of Cowan to be ‘virtually identical’ to those in this case. ... Thus, the court of appeals held that YCO 505.19 violated procedural due process because of the ‘imposition of additional legal duties and restrictions on the dog owner.’ ... We disagree. In holding that R.C. 955.22 was not unconstitutional as applied to owners of pit bulls in Tellings, we clarified that in Cowan, it was the unilateral classification of the dogs as vicious by a state actor that trampled the defendant’s due process rights by failing to give him notice and opportunity to be heard. YCO 505.19 simply shifts the risk of dog ownership to the dog owner in order to protect the public.”
“YCO 505.19 does not permit any unilateral, unreviewable, precharge determination by a state actor, unlike the statute involved in Cowan. Moreover, YCO 505.19 does not create prehearing burdens on dog owners, such as requiring liability insurance for particular breeds. In Cowan, we rejected the owner’s inability to challenge the vicious label until trial. However, YCO 505.19 does not classify or label dogs as vicious. Dogs are rendered vicious under the ordinance by their propensity to attack or by their attack, and dog owners are merely required to keep such dogs confined. Traylor’s dogs were alleged to be vicious in his criminal complaint, and Traylor was given an opportunity for meaningful review in front of the trial court. Notably, Traylor did not present any evidence regarding the temperament or disposition of his unlicensed dogs at the hearing on the motion to dismiss. YCO 505.19 does not place any responsibilities on the dog owner until the state proves its case beyond a reasonable doubt. Rather, YCO 505.19 simply requires dog owners to keep their dogs on their property.”
Justice Stratton concluded: “Traylor’s dogs, unprovoked, attacked Roch and his dog while the dogs were off their property. Traylor argues that an owner cannot know that his dog is vicious until he is convicted under the ordinance. To hold otherwise, however, is to permit each dog ‘one free bite,’ a result that would clearly leave society at risk. A responsibility of dog ownership is to maintain and control the animal. This ordinance requires no more and no less, and, therefore, it does not violate procedural due process. We hold that Youngstown Codified Ordinances 505.19 is rationally related to the city’s legitimate interest in protecting citizens from vicious dogs and therefore is constitutional. Accordingly, we reverse the judgment of the court of appeals and reinstate the convictions.”
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.
Justice Paul E. Pfeifer entered a dissent, joined by Justice Judith Ann Lanzinger, in which he wrote: “The outcome of this case is morally repugnant. The owner of a dog is being sent to jail for 90 days based on his failure to do something he could not know he was supposed to do. ‘Vicious’ dogs must be restrained. ... But Traylor’s dog was not ‘vicious’ until the moment it bit a human, at which point it was too late for Traylor to restrain his dog. YCO 505.19 imposes obligations on dog owners that they do not know they need to comply with until they have no opportunity to comply. The most troubling part of this case isn’t that a municipality would pass such an ordinance; it’s that this court is sanctioning it. This court is turning a blind eye to basic tenets of fundamental fairness. ... Traylor was not capable of restraining his ‘vicious’ dog until he knew it was vicious. Allowing Youngstown to impose criminal liability based on a contemporaneous labeling of a dog as ‘vicious’ is not different from imposing criminal liability on an ‘accident-prone’ driver and defining ‘accident-prone’ as anyone who gets in a car accident. It just doesn’t make sense. And it’s unconstitutional.”
In a separate opinion agreeing with Justice Pfeifer’s analysis, Justice Lanzinger wrote: “With respect to the majority’s concern over ‘one free bite,’ a dog owner cannot totally evade responsibility for the consequences of failure to restrain a dog—there is always the potential for civil liability. We held in State v. Cowan ... that a statute requiring the confinement of vicious dogs violates the constitutional right to procedural due process if it fails to provide dog owners a meaningful opportunity to be heard on the issue of whether a dog is vicious. I would affirm the judgment of the court of appeals that the reasoning in Cowan controls the outcome of this case.”
Contacts
James E. Lanzo, 330.782.8283, for Jammie Traylor.
Joseph R. Macejko, 330.742.8791, for the Youngstown city prosecutor’s office.